40 Kan. 543 | Kan. | 1889
Opinion by
At the November term, 1883, of the district court of Washington county, one Geo. E. Ross was convicted, upon a plea of guilty, of the sale of intoxicating liquors in violation of law, in a certain frame building known as the Miller saloon building, situate on lot 26 in block 10 in the city of Washington. He was adjudged to pay a fine of $100 on each of eight counts, and the costs of the prosecution; and the above-described premises were found to be a place where intoxicating liquors were sold in violation of law, and ordered closed as a nuisance. In default of the payment of the fine and costs, Ross was committed to jail. He subsequently paid the costs, and was released from confinement by the order of the board of county commissioners of that county. On the 11th day of December, 1883, the county attorney commenced this action in the name of the state to enforce the lien of said judgment for $800 against said premises. The petition alleges the conviction, judgment, and non-payment of the fine, and asserts that at the time of the rendition of the judgment Charles Snyder was the owner of the lot and building; that he let the same, and knowingly suffered and allowed it to be used for such illegal purpose; that after such judgment, Snyder fraudulently transferred the property to one M. Swo-body, who subsequently fraudulently transferred it to Edward Snyder, a minor son of Charles Snyder. Leopoldina Snyder, the wife of Charles Snyder, M. Swobody, and Anna his wife, and Edward Snyder, are joined as parties defendant with Charles Snyder. Charles Snyder filed his separate answer on the 10th of January, 1884, admitting that he was the owner of the property at the time of the rendition of the judgment against Ross, and alleging the transfer of the property to M. Swobody
The case was tried at the June term, 1886, and resulted in a verdict and judgment for the defendant in error. The jury returned answers to the following special interrogatories submitted by the court:
“1. Who was the owner of lot 26, in block 10, in the city of Washington, Washington county, Kansas, during the months of September, October, and November, 1883? Ans.: Charles Snyder.
“ 2. If, in answer to the last question, you say Charles Snyder, then how long did he own said property prior to that time? A. From January 3, 1883.
“3. Who occupied said lot and the building thereon during the months of September, October, and November, 1883? A. George E. Ross & Co.
“4. Were said premises used and occupied during the
“5. Were said premises held and occupied underand by-virtue of a lease from Charles Snyder, defendant herein? A. Yes.
“6. Did Charles'Snyder have notice or knowledge of the purpose for which said building was being used during the said months of September, October, and November, 1883? A. Yes.
“7. Did Charles Snyder let or lease the one-story frame building situated on lot 26 in block 10 in the city of Washington, county of Washington and state of Kansas, and knowingly suffer the same to be used and occupied by Geo. E. Ross, during the months of September, October, and November, 1883, for the illegal sale of intoxicating liquors by said Geo. E. Ross? A. Yes.
A motion for a new trial was overruled, and the court rendered judgment on the evidence and special findings of fact returned by the jury, declaring the amount of the fine and interest a first lien on the premises; that all of the defendants be forever barred from setting up or claiming any interest in a title to said premises; and that it be advertised and sold according to law; and that said first lieu, with interest and costs of the action, be first paid out of the proceeds of said sale; and that the remainder of the proceeds of said sale be brought into court to await its further order of distribution. These defendants, as plaintiffs in error, bring the case here for review, having filed their motion for a new trial, and saved all necessary exceptions.
I. We are first called upon to dispose of two preliminary questions. The plaintiffs in error have filed a motion to be allowed to complete the record by attaching thereto certified copies of the pleadings in the case, and by attaching thereto a copy of an order made by the trial judge at chambers, extending the time within which the plaintiffs in error could make and serve a case. The defendant in error filed a motion to dismiss the petition in error, because the case was not made and served within the time fixed by law or the order of the trial court, and because it does not contain the pleadings. We
II. The plaintiffs in error contend that there is a misjoinder of causes of action stated in the petition. This contention is based upon the assertion that the action is both one to establish a lien at law, and to set aside fraudulent conveyances by the lien debtor. If this is a correct statement of the object and prayer of the petition, there is some ground for the contention. We doubt, however, whether it is a fair statement of the causes of action. It is not in fact an action to establish a lien, because that results either from the contract of the parties, or by the operation of law. The statute in express terms makes the real estate of a person convicted of its violation subject to a lien for the amount of the fines and costs adjudged against him; and it is just as emphatic in declaring them a lien upon the leased premises occupied by the convicted person, and used for the purposes of the alleged traffic,
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.