English v. English, 53 Kan. 173

English v. English

53 Kan. 173 | Kan. | 1894

The opinion of the court was delivered by

AlleN, J.:

The first complaint is of the court’s ruling on the plaintiff’s motion to make the amended answer more definite and certain. We think the court’s ruling was right. The answer certainly is not wanting in fullness of detail.

The next assignment of error is in overruling the plaintiff’s motion to strike out all reference to other lands than those described in the petition, and it is contended that, as to the lands which the defendant had already deeded away, he had no right to relief. It may be that the defendant could not maintain an independent action to quiet the title to lands he had already conveyed to another, yet, inasmuch as the transactions between Thomas and Alexander English related to those tracts, and as it is claimed by the defendant that it was finally agreed between them that he should have all the Kansas land, we see no impropriety in settling the whole controversy in one suit. All the rights of the parties growing out of the same transaction may properly be determined iu an action depending on such transaction.

The third and principal contention of the plaintiff in error is, that the findings are unsupported by the evidence. We have patiently read the testimony contained in the record, and find that every material fact found by the court is supported by competent testimony. To consider each of the matters which the court has deemed worthy of especial mention, separately, would consume needless space. We think the testimony is ample and satisfactory, and the court’s con-*176elusions correct. While it might perhaps be necessary, in order to establish a resulting trust, to show that the identical money belonging to the defendant was invested in this Kansas land, in this case we have proof of an express recognition by Thomas English of the trust, and an agreement in writing by his letters to convey the lands in pursuance of that trust to the defendant; and the evidence abundantly shows that Thomas English, at the time of that agreement, held considerably more funds belonging to the defendant than the amount invested in the Kansas lands.

Complaint is also made because the findings of fact were prepared by the attorney for the defendant. It appears that, at the conclusion of the trial, the court orally announced its decision upon the facts and the law, and requested the defendant’s attorneys to prepare and submit findings; that this was done, and the findings so prepared were examined and approved by the court. Nothing is more common in the conduct of business in court than for attorneys to draft orders and journal entries of all kinds. Of course, it would be error to permit the attorney of one of the parties to dictate as to what should be included in the findings; but where the court, as will always be assumed to be the case without an explicit showing to the contrary, passed an intelligent judgment on the findings submitted, and approved them, we see no objection to allowing an attorney in the case to perform the clerical labor of writing up findings in accordance with the decision of the court as announced, leaving to the judge only the duty of examining, correcting if necessary, and finally approving.

We perceive no substantial error in the record, and the judgment is affirmed.

All the Justices concurring.