*1 519 necessary, that it ordinance, grant under the not for him a upon hearing application for says a permit. Relator is Bureaucracy running wild. It is a say sufficient answer to grant did hearing; director a full might we add the ordinance provide hearing does or require not an al- application, such though require hearing it does sought notice and it is revoke permit or statute, The same license. situation exists in our state pointed Noel, as Supreme supra. out Court State ex rel. If legislation, such not proper wise it be corrected must
legislative body, not the courts. being
Relator not law, entitled to permit as matter of being there ho arbitrarily substantial evidence that the acted director capriciously having trial finding, court made no such we in making peremptory. conclude the court erred the writ J., Bland, reversed. concurs. Appellant. et al., Respondents, Kontos, v. Nick (2d) S. W. 195. City Appeals.
Kansas Court December *2 Gaddy appellant. J. V. and Abe Goldman for Conlcling Sprague respondents. <& *3 wife, plain- SPERRY, Frank husband and C. Hallie and Kontos, defendant, equity seeking cancellation tiffs, sued Nick Defendant, counterclaim, sought mortgage. by of a chattel by chattel, the note secured said and fore- $1600, for the amount petition Judgment plaintiffs for on their chattel. was closure of appeals. his counterclaim. Defendant on against defendant and following effect: Frank and de- gave testimony to the Plaintiffs associates, working together friends and intimate had been fendant years prior trial. twenty than to the more than for in restaurants marriage friend since her intimate an Hallie had been years. years, For fourteen about fifteen Frank, period of for a Joseph, at a operated a in St. Frank had restaurant 1939, prior to for him at said had worked times location, and defendant certain business was carried building which restaurant restaurant. compelled to vacate. He was Frank was and changed hands on situation, and that of his He told Kontos and out.” and down “broke home, whereupon keep de- their not be able to Hallie would and into a vacant house they might move owned them told fendant gave up They them. their home and live with he would and they moved into until defendant’s Harrety’s parents lived with 1943. August, them until lived with Defendant June, house paid Defendant moving expenses plaintiffs, household for various bills, hospital bill, payments on a refrigerator, and advanced some during cash, the first six months they lived in his house. The total paid and for plaintiffs advanced repaid $256, amounted about which was brought. 1939, defendant before this suit 22, On June bought $1510, repair shop, a shoe for the sum of which became and her property. remained plaintiffs gave up Castelli,
After home it was taken over .their one who had a furnace installed therein and gave payment who note in thereof, being signed said 8, note dated November 1939. Frank said note as an sign accommodation Castelli but Hallie did not same. papered painted. Castelli also had the house September and On payment Frank and Hallie paint paper were sued and bills and the holder of the furnace note of same Harretys. They from both became alarmed and discussed matter Kontos, telling with him they being note, feared on sued the furnace signed which signed. Hallie had not but which Frank had they covering mortgage advised that execute a note and to him the shoe shop repair they Hallie, telling owned it back- them could have agreed at time it. they wanted Plaintiffs do lawyer October procured prepared defendant a note who $1600, mortgage covering amount of and a shop, which shoe plaintiffs signed, executed and to defendant, delivered and which money changed was recorded. No hands the time note were executed and only owed $256 above mentioned. they Plaintiffs stated that took defendant’s friend, advice on this matter their given because was had them a out, complete home were down because had *4 judgment; in him they confidence and in that advice took his as they Thereafter, would a father or brother. the furnace note was fully paid by By given Castelli. the terms the of to note subject suit, which of paid monthly is the this it was to be in install- $25. ments of At the time of no had suit been credited thereon, made, plaintiffs testified that none were and defendant said that, 1942, none ever demanded. Frank August, were testified in after requested give the furnace note had paid, been he that defendant 1943, him August, back the note and that defendant did so. In Harretys shop bought home, paying sold the a and on $100 the the purchase They bought price. they told had home defendant and attempted persuade stay would move out his house. He of to them to buy they purchaser and his house which would not do. The of the shop requested of they release the and defendant to paid $1000 release same. This refused to unless him he do years. occupancy rent for of the house for suit followed. four This to he Defendant testified the effect that had worked with and for estate, including years; Frank real many property, for that he owned Harretys $7000; value than that when the notes and cash of the of more in his “broke, down and out” in he invited them to live were rent; any time, any that he loaned them never, house and at asked cash, paid them, in of which he had various and bills for sums in in a book which was introduced in entries record evidence. figures but there date entries.
the book were of were no in $320 in in $424 was loaned $856.83 testified that $1600.83. have been loaned totalléd 1941. The amounts claimed to plaintiffs what that he did not ask He testified the effect to at any receipt memorandum for nor did ask for or money wanted having accounts. denied any money paid time he advanced or He Harretys that either the and denied of Frank, surrendered the note to He also or book account. paid money had him note ever the state- wherein he made having certain conversations denied had two this Pinzino, regard to ments and to Louis to Frank Leonardo August, 1943,shortly dispute arose. after this controversy, in lived that she Pinzino, Mrs. testified Mrs. a sister-in-law of June, 1942, and during last week of that in the home Harrety money, some in his pay living saw Hallie defendant while there she him and he if all she owed room; Hallie asked Kontos that was that ‘ ’ ‘ ’ something a little book. yes and erased answered Harrety home testified housekeeper Mason, a former Armour’s, cheek from his vacation give Kontos that she saw Frank and deliver the him indorse that she saw employed; where Frank November, kitchen, part during the first check Kontos Frank November, 1942, she heard 1942; during part of the latter that some him him saw hand money for he had some tell Kontos December, amount; that money did not know but that he him for the coal and paid Frank had told Kontos her Harrety therein, according figures her his book showed $156', odd cents. Kontos and some still owed days after that a few Hallie, testified Pinzino, a brother Louis requiring release attorney from an had received letter matter; about talk with Kontos herein went dime, owe me doesn’t Frank brother-in-law Kontos said: “Your ’’ mortgage. on that collect going I am cents, ten twenty Company & Armour a foreman Leonardo, Frank an effort Kontos in matter with discussed that he years, testified “I loaned said: Kontos dispute, and that adjust amicably paid all that and he odd dollars some Frank two hundred that Frank claimed in evidence that back.” stated He *5 mortgage release the he would and" for the house rent $1000 owed ought Kontos to that suggested paid; if that witness only was that pay the to he refused but that rent if pay board the to testified laundry. He also Harretys for board anything 524 Leonardo, mortgage he, if that Kontos offered to release the
effect give personal $500 would note for in Kontos settlement. testimony contradicted, only by the testi flatly Defendant’s not men mony of but also that of the four above plaintiffs, witnesses will, case, weigh evidence; we may, equity in an the tioned. We are findings the chancellor based ordinarily, defer of when same to credibility of is involved. conflicting evidence where witnesses agree (2d) 793, W. 181 l. c. In this case we Smith, v. S. 796.] [Smith findings to the effect that the note and chattel with the of the chancellor think discloses given without consideration. We the evidence were plaintiffs anything that did not owe defendant at the time suit was filed.
However, equity can grant defendant contends that no hands. There cases where the relief because have unclean are that doctrine, have equity one seeks must clean who hands pari in stand parties not intervene equity court of will where v. Balch, seq.; 1018 delicto, exceptions. its C. J. S. Poston has [12 et. exception is a one of the 69 c. Such an ease where Mo. l. 121.] in confidence and parties instance other whom he has acts at the parties fact, in delicto. not, pari trust. In case the are In such a according Harrety, bar, testimony óf Mr. and Mrs. the case at his his advice. acted instance and on trusted defendant respect many facts and in this is corroborated testimony Their testimony ap believe their are inclined to circumstances. We also it. parently, the trial court believed get persons not relief from a situation Ordinarily equity will aid conveyance creditors. resulting property of their in fraud of from the However, has 1221-1222; 12 C. J. the rule no C. J. S. [9 1018.] where, although conveyance application to situation whatever fact, creditors, in no creditors. with defraud there were made intent to J. evi 1221-1222; According J. C. S. to all of the C. 1018.] [9 signed Harrety Mrs. had not the Holland Furnace dence in case note, threatened; suit and she so Company on which had been informed by her, according note and were executed The defendant. evidence, avoid a claim which plaintiff’s order to conveyed, did owe. The situation property not she, as owner of Balch, supra, similar to that discussed Poston v. presented is here application no contended for has l. c. 124. The rule M. l. Schump, v. 16 N. Pac. c. Harrety. Mrs. [Collins Brown, 32 Mich. l. 332; v. c. Barnes 153.] right solely her Harrety deprived be of cancellation cannot exclusively .party plaintiff. property is a because her husband although necessary party is a Mr. of Mrs. executing having joined seeking cancellation, proceeding 592.) ; 591, l. yet Gould, W. c. he had no 187 S. (Davidson joined properly have as a and could been property interest *6 party plaintiff. instead of a is en party record, sought; and that relief titled, relief will not be joint ground plaintiff, that a instead of a denied on sole may owed debts executed with intent have Frank could not his' creditors. defraud creditors to defraud executing mortgage on to which he had no title. property [Beane l. c. Givens, Pac. v. 989.] ’ there is fatal variance between contends that assignment proof. appears such and their No motion petition trial, nor there merit contention. for new Boyer, C., concurs. should be affirmed. judgment The foregoing opinion adopted PER CURIAM: The Sperry, C., is affirmed. All concur. opinion of the court. as the Respondent, Great Northern Life Insurance Christy, G. Paul Appellant. (2d) 663. Company, 181 S. W. City Appeals. June
Kansas Court