Crippen v. Schnee

52 Kan. 202 | Kan. | 1893

The opinion of the court was delivered by

Horton, C. J:

The contention in this case is, that Hon. S. O. Hinds, district judge of the fourteenth judicial district, heard a part of this case in Saline county, but that before judgment was rendered the thirtieth judicial district was created, embracing Saline county, and that Hon. R. F. Thompson, as district judge of the thirtieth judicial district, disposed of the motion for a new trial and rendered judgment, and therefore that a new trial must of necessity be granted, under the authority of Bass v. Swingley, 42 Kas. 729. It appears from the record that, after the thirtieth judicial district was created, Hon. R. F. Thompson, as district judge, made additional findings, overruled a motion for a new trial, and rendered judgment. If the record showed nothing further, the case of Bass v. Swingley, supra, would be applicable. But it also appears that Hon. S. O. Hinds, the judge who first tried the case, also heard and determined a motion for a new trial before the thirtieth judicial district was created. He set aside certain of the special findings of the jury, but permitted others to stand. The pivotal question of fact in the case was, whether the lots referred to in the agreement were the homestead of F. M. and Sadie E. Schnee. The findings of the jury, which Hon. S. O. Hinds, district judge, sustained as supported by the evidence, established that the agreement set forth in the petition was void, because it attempted to affect the homestead of the defendants, without the joint consent of both husband and wife. Upon these findings, the plaintiff was not entitled to a specific performance of the agreement, which was signed by the husband, F. M. Schnee, only. Therefore the plaintiff had his motion for a new trial heard and determined before the district judge who presided at the trial, saw the witnesses, and could intelligently pass upon their testimony. After a motion for a new trial has once been made, heard, and decided, a court may arbitrarily overrule all further motions made for the same purpose and based on the same grounds. The subsequent findings, made by Hon. R. F. THOMPSON, did not materially change or affect the findings of the jury which were sustained by his predecessor. The conclusion of Hon. R. F. Thompson, that the premises in question were the homestead of the defendants on October 26, 1885, was in accord with the findings of the jury. Upon the record presented, after Hon. S. O. Hinds overruled the motion for a new trial, Hon. R. F. Thompson had no other duty to perform than to pass upon the special findings of fact returned by the jury. The findings of fact support the judgment rendered; and this case, upon the facts presented, does not come within Bass v. Swingley, supra.

Upon the cross petition filed by the defendant F. M. Schnee, it is claimed, as the agreement affecting the homestead is void, because Sadie E. Schnee, his wife, did not sign or consent thereto, that there could be no recovery by H. F. Crippen of the $59 mentioned in the agreement. We think otherwise. By the agreement signed by F. M. Schnee, he was to pay H. F. Crippen the sum of $59 for expenses incurred upon the premises. This part of the agreement was binding on the parties, and the court committed no error in rendering judgment for that amount. The case of Thimes v. Stumpff, 33 Kas. 53, differs from this. In that case, the money attempted to be recovered was a part of the purchase price of the homestead, which the wife did not consent to sell. The amount in this case recovered is for expenses, and interest, paid by the plaintiff upon the homestead, which the husband, F. M. Schnee, agreed to pay. This part of the agreement of the parties is not invalid or void.

The judgment of the district court will be affirmed.

All the Justices concurring.