33 Kan. 120 | Kan. | 1885
The opinion of the court was delivered by
This was au action in the nature of ejectment, and for rents and profits, brought December 28, 1881, in the district court of Brown county, by Michael Rogers against John Bradley and Maggie Bradley. On May 24, 1882, Charles E. Bradley was made a party defendant. On September 28, 1883, a second trial was had in the case before the court and a jury, and on September 29, 1883, judgment was rendered in favor of the plaintiff and against the defendants, for the recovery of the land in controversy, and for rents and profits. It was also ordered by the court that the defendants be reimbursed for the taxes, with interest and costs, which they had paid on the property in controversy, and that they have the benefit of the occupying-claimant law. The order giving the defendants the benefit of the occupying-claimant law was made at their request. Afterward Rogers died, and, his death being suggested, the suit was revived in the name of his- heirs and executors, and was subsequently prosecuted by them. Afterward, and in January, 1884, further proceedings were had for the purpose of giving the
It is claimed by the plaintiffs in error, defendants below, that the evidence in the case failed to show title in the plaintiff, and showed paramount title in the defendants. The defendants in error, plaintiffs below, however, raise a preliminary ■question in this court which will take precedence of the question of title, and as we think will render it unnecessary to consider the question of title, or indeed to consider any question of supposed error in the proceedings of the court below had prior to and including the rendition of the judgment awarding the property to the plaintiffs.
The foregoing question raised by the defendants in error, plaintiffs below, is as follows: They claim that the defendants below, by electing to institute proceedings under the occupying-claimant law, waived all errors or irregularities supposed to have been previously committed by the trial court, and elected to consider the.judgment rendered with reference to title and rents and profits and costs as final and conclusive, and are now estopped from seeking to overturn such judgment by any proceedings in error brought to this court; and they cite as authority therefor the case of Buchanan v. Dorsey, 11 Neb. 373. We think their claim is good; for, while the occupying-claimant law of Nebraska, and the facts of the Nebraska case, are to some extent different from the occupying-claimant law cf this state, and the facts of this case, yet we think the principles of law enunciated in the Nebraska case are applicable to this case, and are sound law; and we shall, therefore, follow that case in rendering our decision in this case. Also, with reference to waiver of errors by receiving the fruits of a
“Sec. 603. The court rendering judgment in any case provided for by this act [article], against the occupying claimant, shall, at the request of either party, cause a journal entry ■thereof to be made; and the sheriff and clerk of the court, when thereafter required by either party, shall meet and draw from the box a jury of twelve men, of the jurymen returned to serve as such for the proper county, in the same manner as the sheriff and county clerk are required by law to draw a jury in other cases; and immediately thereupon the clerk shall issue an order to the sheriff, under the seal of the court, setting forth the name of the jury, and the duty to be performed under this article.
“Sec. 604. The jury drawn and named in said order shall immediately, on being notified by the sheriff, proceed to view the premises in question, and then and there, on oath or affirmation, to be administered by any competent authority, assess the value of all lasting and valuable improvements made, as aforesaid, on the lands in question, previous to the party receiving actual notice, as aforesaid, of such adverse clajm; and shall also assess the damages, if any, which said land may have sustained by waste, together with the net annual value of the rents and profits which the occupying claimant may have received from the same, after having received notice of the plaintiff’s title, by service of a summons, and deduct the amount thereof from the estimated value of such lasting and valuable improvements; and said jury shall also assess the value of the land in question, at the time of rendering judgment as aforesaid, without the improvements made thereon, or damages sustained by waste, as aforesaid.”
“Sec. 606. The jury shall sign and seal their respective assessments 'and valuations aforesaid, and deposit the same with the clerk of the court by whom they were appointed, before the first day of the next term of said court after- said order is made; and if either party shall think himself or herself aggrieved by any such assessment or valuation aforesaid,
The defendants- in this case did not stop with asking the court for a “journal entry” showing that they were occupying claimants, but they also demanded a jury by a written demand, which reads as follows :
“ Now come the defendants and demand a jury to assess improvements made by them prior to January 2, 1882, under their claim of ownership under the tax deed by them offered in evidence.”
As to whether the defendants would have the right to institute and maintain proceedings in error to reverse the judgment in the main action, if they had stopped with their request merely for a journal entry showing that they were occupying claimants, it is not necessary in this case to consider or decide, and we shall not consider or decide the same; for, as we have before stated, they did not stop with said request, but they demanded a jury for the assessment of their improvements, and such jury was awarded to them by the court, and was-afterward drawn and impaneled, and the value of their improvements was afterward assessed; and further proceedings were had in the case with reference thereto. It is true that the foregoing demand, for a jury to assess improvements, was made before the judgment was rendered; but we do not think that that can make any difference. It was made after the verdict and findings of the jury were rendered, and it was permitted to remain on file in the case after the judgment was rendered, without any revocation or dissent, and without any objection to the drawing and impaneling of a jury, or to any proceedings to be had by a jury, until after the jury were actually impaneled and sworn, and were proceeding to business.
We now come to the question whether any material or substantial error was committed by the court below after the ren
The judgment of the court below in the main action will be-affirmed; but the judgment and orders of the court below,, rendered in February, 1884, with respect to the occupying-claimant proceedings, will be reversed, and the cause remanded with the order that the return of the jury in such proceedings be set aside, and for such other and further proceedings as may be proper in the case.