Butler v. Butler

82 Kan. 130 | Kan. | 1910

The opinion of the court was delivered by

Benson, J.:

A motion is made to dismiss this appeal for want of an abstract. We agree with counsel that the abstract of the appellant is quite insufficient. The petition and affidavit upon which the contempt proceedings were founded, and the answer thereto, are not abstracted. Some of the evidence is set out in the abstract, but more is contained in the brief. The abstract and brief are so intermingled that it is difficult to distinguish between them; but the appellee has properly supplied these omissions by furnishing a counter abstract, and, the case being thus presented, the motion will be denied. The costs of the counter abstract will be taxed against the appellant.

The judgment for contempt can not be sustained. It was shown that Mrs. Butler did not herself request the execution of the instruments, and no one claiming to act by her authority made such request for her. The party who sent the papers by mail did not intimate that he had such authority, and the others who presented the deed in person, when asked by whose authority they were acting, or who requested them to act, did not claim to represent Mrs. Butler. The appellant was entitled to this information before signing the papers.

Another a,nd more serious objection is urged in behalf of the appellant. The instruments presented for his signature contained covenants of warranty. It can not be claimed that the judgment required him to enter into such covenants. He was only required to join in conveyances to devest his wife of whatever title she had received should she so desire, and was not required to make a better title or to become personally liable for any defect or encumbrance. What interest is conveyed, or might be conveyed, by the peculiar instruments signed by the wife need not be considered.

The appellant contends that the court had no jurisdiction of the proceedings because no accusation as provided by the statute was filed. (Laws 1901, ch. 132, §2; Gen. Stat. 1901, § 1983.) He can not, however,' complain of this, since he filed his answer to the petition without objection, treating that as a sufficient charge, thereby waiving a formal accusation.

The judgment is reversed and the cause remanded for further proceedings.