Crans v. Francis

24 Kan. 750 | Kan. | 1881

The opinion of the court was delivered by

Brewer, J.:

This is an original action of mandamus, brought to compel the defendant, as state treasurer, to receive certain moneys, and give a receipt therefor. The allegation is, that the plaintiff made a contract with the agent of the state, appointed under an act of the legislature of date February 23, 1866, for the purchase of a certain tract of land; that he presented this contract, and the money due under it, to the defendant, and demanded a receipt, and this for the purpose of tendering the receipt to the governor, and obtaining from him a patent. To this application the defendant in due time answered, and plaintiff files a motion to quash this answer, or return to the writ, on the grounds that the defenses are inconsistent and impertinent.

A preliminary question is, as to the scope and effect of a motion to quash; and in this we must be guided by the statute, rather than by the rules which controlled the old common-law proceeding by mandamus. The entire nature of this proceeding is, as we have had occasion heretofore to notice, changed by statute. (The State, ex rel., v. Jefferson Co., 11 Kas. 66.) It is now in its form very like an ordinary action. No other pleadings are allowed than the writ and answer. These pleadings are to be construed and to have the same effect as pleadings in a civil action, and the issues are to be tried and further proceedings had as in a civil action. (Code, § 696.) Under those rules, a motion to quash the answer is a challenge of the substance of such answer. It asks that as a whole it be rejected; in other' words, it claims that, construed by the ordinary rules of pleading, it contains no defense. If sustained, it strikes out the entire pleading, and leaves the plaintiff’s pleading admitted. It is not in the nature of a motion to make specific and definite, for such a motion implies a defense presented, though imperfectly pleaded; neither is it equivalent to a motion to compel defendant to elect, for such a motion implies the existence of two or more defenses. This motion denies any defense. It is like a motion to strike out the answer as containing no defense, or a motion for judgment over the answer, or a demurrer to the answer. It attacks the substance and not the form, and says that no defense is presented. Strictly, then, if any defense appears jn the answer, the motion must be overruled; and if two defenses, even though inconsistent, the same ruling must be made.

A demurrer will not lie on the ground of inconsistent defenses. (Larimer v. Kelley, 10 Kas. 298.) Neither will any other objection which merely denies the existence of any defense. Further, if impertinent matter be found in such an answer, a motion to quash must be overruled, providing a sufficient defense be also pleaded. The authorities cited by counsel from the old common-law practice do not obtain. The reasons for this difference are fully stated in the opinion in 11 Kas., supra, and need not be here repeated.

The answer -commences with a general denial. As there are many facts in and essential. to plaintiff’s petition which require proof, and are not admitted by a failure to deny under oath, this of itself is a sufficient answer, and compels the overruling of this motion, unless the matters thereafter admitted in the answer of themselves show that plaintiff is entitled to the relief asked. As they do not, we might properly stop here in this opinion, and simply overrule the motion.

Two matters are presented which, however, may be of importance in the further progress of this case, and which, therefore, we shall consider. The petition alleges that the plaintiff contracted with the agent to purchase the land at the appraised value. The answer, besides the general denial, specifically denies that the lands were ever appraised as required by the statute. Tire original act was silent as to appraisement, and simply provided that no lands should be sold at less than $1.25 per acre; (§4.) In 1869 said §4 was amended so as to read: “ Before said agent shall sell any of said lands, each railroad company ..... shall appoint a commissioner, to be approved by the governor, whose duty it shall be to proceed at once to view, list and appraise said lands, .... and said agent shall sell said lands at not less than their value according to such appraisal: Provided, however, that such company shall appoint such commissioner within two months from the approval of this act, and said appraisal shall be made within six months.” Now such appraisal was a condition precedent to the fight to sell. No contract of the agent was of any force until it was made. And if the companies who were the beneficiaries under the act failed to appoint a commissioner, and no appraisal was in fact made, the right to sell ceased. Nothing could thereafter be done until further action of the legislature. The failure . of the companies to act under this amended section did not revive the section as it stood before amendment, for it was in terms repealed, nor did it authorize the agent to proceed and sell as though no such section had been enacted. The appraisal was a condition precedent, and if the condition failedy the authority of the agent ceased. He had no general power to act.

Again, the answer alleges that a decree was duly rendered against the predecessor of the present agent and the railroad companies, enjoining further sale of these lands, the payment of the proceeds of any sales to the companies, and the companies from ápplying for or receiving any such proceeds. A • copy of the decretal order or judgment is attached to the answer. The allegation of the answer is, that this decree was rendered in an action against a prior agent who was sued as the agent, and the companies who were sued as the beneficiaries wider said act. The decree reads as though it were agáinst the agent as an individual, and not as an officer. Now the mere language of the decree may not disclose its full scope. This may be determined in a measure by the allegations of the petition and the scope of the issues. If from the whole record it should appear that there was simply a personal attack upon the individual, then a decree enjoining him from selling would be personal only, and would not affect the right of any other or subsequent agent to proceed under the act and sell. But if the attack was alone upon the office, he being made defendant as the only incumbent of the office, and no personal disqualification the ground of relief, then the decree, although nominally only against him, might really bind the office and prevent any subsequent sale by any one. The real scope of the decree can therefore only be determined by an inspection of the whole record. Until that appears, we forbear further comment upon its scope and effect.

The motion to quash will be overruled.

All the Justices concurring.