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over the lands of other proprietors, without liability for injury
ensuing from such obstruction or diversion : Nole to Sharpe v. Scheihle,.
42 Am. St. Rep. 839. A railroad company is not bound to construct
waterways and culverts to carry off surface water in the abs 'nee of
any channel or ravine crossing and closed by its embankment: Mis-
souri Pac. Ry. Co. v. Keyd, 52 Kan. 237; 39 Am. St. Rep. 344; note to
Kansas City etc. R. R. Co. v. Lackey, 48 Am. St. Rep. 691.



Walker v. Coleman,

[55 Kansas, 881.]

REMOVAL OF CAUSE TO FEDERAL COURT-WHAT WILL
NOT JUSTIFY.— The mere fact that the defendant in a state court is
a United States marshal, Justifying under a writ of attachment issued
from a federal court having jurisdiction in the locality of the sult^
does not confer upon him any right to have the cause removed to that
court

NEW TRIAL FOR MISCONDUCT OF JUDGB.-If the judge,
on a trial before a Jury, uses offensive language towards counsel for
the defendant, such as to imply that he Is an intruder in court, and
the verdict goes against him. a new trial should be granted, on the
ground of irregularity in the proceedinca of tlie court, as the Jury may
have been influenced unfavorably to the defendant by the bearing of
the judge and his prejudice against counsel.

Action by Coleman and others against Walker to recover the
value of a stock of goods alleged to have been unlawfully taken.
Coleman recovered judgment and Walker appealed. Walker filed
an application to remove the cause to the circuit court of the
United States for the district of Kansas, on the ground that in
taking the stock of goods he was acting as a United States
marshal for that district, under order of the federal court, by
virtue of an attachment issued from said circuit court in the case-
of Tootle V. Lynch; that all his acts in relation to the taking of
said property were in the strict and direct line of his duties as such-
oflBeer; and that the suit arose under the laws of the United States-
by reason of such facts. Lawyers Stanley and Adams, of Wichita^
and Solomon^ of Atchison^ actively participated in the triaL



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Jan. 1895.] Walker v. Coleman* 255

Stanley represented Coleman, and Adams and Solomon repre-
sented Walker. The jndge, dnring the trial, reprimanded Walk-
er's attorneys on several occasions. After a question npon the
admissibility of eyidence as to the yalue of certain real estate had
been argued, the following colloquy took place between court and
counsel. The judge, having an open book in his hand, said:

'TEere is some good law [reading] : *A lawsuit is not a game to
be won or lost by sharp practice and shuMng devices. The part
of judicial investigation is to ascertain the facts, not to suppress
theuL'

^Adams: What has that got to do with this case?

''Court: I read that for the benefit of the attorneys for the de-
fendant.

''Adams: We object to that, and desire the stenographer to take
it down and note our exception to it.

"Stanley: I object to that going down in the record. It is not
a proper thing to go into the record. It is not a part of the case.

"Court: The gentleman from Hogtown [referring to Mr. Solo-
mon] may do very well up in his town, but it will learn him a few
lessons when he comes down here. We can try our lawsuits.

"Solomon: I suppose I am privileged to come here, if I wish to.

"Court: Yes; but I think you belong in Missouri properly.
You should have located in Missouri. There is where you made a
mistake.

"Solomon: I have always lived in Kansas, and have practiced
law here for a number of years.

"Court: You made a mistake.

''Adams: Mr. Stenographer, note our exceptions to the remarks
of the court

"Solomon: I have not had a word to say in court in any part of
the case, and have tried to conduct myself courteously with the
court

"Court: If you kept still it would not be so bad; but you keep
egging him on all the time. I can see. We could possibly get
along with him, but you delay the case. Proceed with the case.
You will have to show the market value of the property first"

H. C. Solomon and Adams & Adams for the appellant

W. E. Stanley, for the appellees.

•^ MABTIN, C. J. 1. The application to remove the cause
to the United States circuit court for the district •** of Kansas
was properly overruled. The mere fact that the defendant was a
United States marshal, justifying under a writ of attachment ia-



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256 Walkrr v. Coleman. [Kansat,

sued from the federal court, did not confer upon him any right of
removal under the several acts of congress relating to that sub-
ject. The order of attachment was issued under the laws of the
state of Kansas, the federal courts having concurrent jurisdiction
with the state courts in certain cases; but no federal question could
arise upon the pleadings nor upon the petition for removal, and it
was not claimed that the parties to this suit were citizens of dif-
ferent states.

2. The record discloses that the attorneys tried the case with
reasonable fairness and courtesy as between themselves, and we
see little or no cause for the apparent exasperation of the trial
judge against the attorneys for the defendant, and particularly
against Mr. Solomon. ]\Ir. Adams took the leading part on thht
side of the case, and Mr. Solomon had little to say. He resided
in a^distant place, and the trial judge seems to have considered him
in the light of an intruder. Presumably neither Mr. Solomon
nor Mr. Adams had any interest in the result of the suit, except
such as properly arises from the relation of attorney and client.
The rights of the parties to the action were the proper subject
of consideration by the court, and those rights ought not to be
prejudiced by any ill-feelings of the trial judge against counsel.
In the case of Cronkhite v. Dickerson, 61 Mich. 177, it is held
that "judges must take great care to say nothing in the hearing of
the jurors, while a case is progressing, which can possibly be con-
strued to the prejudice of either party," and the judgment was
reversed because of an unfavorable suggestion of the trial judge,
the reviewing court saying: "It is impossible to tell to ®®* what
extent the defendant's rights may have been prejudiced by the
remarks." And in Wheeler v. Wallace, 53 llich. 355, 356, 361," it
was decided that "error will lie on the demeanor of the trial
judge, if it be such as to prevent a fair trial, or prejudice the case
upon the facts before the jury," and that it is improper for him to
reflect upon the capacity and memory of counsel to whom clients
have intrusted their interests, and the judgment was reversed for
this cause, among othera. "Irregularity in the proceedings of the
court, .... or abuse of discretion by which the party was pre-
vented from having a fair trial," is one of the grounds specified
in section 306 of the code for a new trial, and this was assigned in
the motion of the defendant for a new trial, and is renewed in the
petition in error here. An examination of the record leads us to
the conclusion that the defendant was probably prejudiced by the
conduct and bearing of the trial judge toward counsel. We think
that some of the answers of the jury to particular questions of fact



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Dao- 1896.] Beverly v. Barnitz, 2f 7

•le against the eyidence and too fayorable to the plaintiib, and
this indicates that the jury may have been influenced nn&Torably
to the defendant by the bearing of the trial judge and his prejudice
against counseL

The judgment will be reversed, and the cause remanded to the
district court of Sedgwick county for a new triaL

All the justices concurring.

REMOVAL OF CAUSES.— THE MERE FACT OF HOLDING
A COMMISSION AS A DEPUTY-MARSHAL, at the time a party
is indicted for an offense against the laws of a state, oommitted at a
federal election, is not, of itself, sufficient ground for depriving the
state court of Jurisdiction of the case, and does not entitle the accused
to have it removed: Dillon's Removal of Causes, 6th ed., see. 64.



Bbtbrlt t;. Barmitz.

[06 KAXBA4, 4M.]

THB OBLIGATION OF A CONTRACT Is that whldi Muds A
IMirty to do or not to do a particular thing.

STATUTES-IMPAIRING OBLIGATION OF CONTRACT-
CHANGE OF REMEDY.— The remedy provided by law for the en-
forcement of a contract is no part of Its obligation, and whatever per-
tains merely to the remedy may be changed, modified, or abrogated bf
the legislature. In Its discretion and to any extent, provided a substan-
tive remedy be stiU left to the creditor, and such changes may consti-
tutionally apply to existing contracts.

STATUTES-IMPAIRING OBLIGATION OF CONTRACT-
CHANGE OF REMEDY.— The obligation of a contract cannot be Im-
paired by the legislature, though it may alter the remedy to enforce It
at wllL If the effect of legislative action Is to Impair the obligation,
it Is void, as it Is Immaterial whether such result is accomplished by
acting on the remedy, or directly on the contract Itself.

CONSTITUTIONAL LAW.-AN ACT WILL NOT BB PRO-
NOUNCED UNCONSTITUTIONAL, unless it Is clearly so. A doubt
of the constltutlonaUty of an act is not sufficient to warrant its Judicial
condemnation.

BSTATB&-THB EQUITY OF REDEMPTION Is a creature
of the courts of chancery, and is Impliedly reserved by the mortgagor.
This reserved estate belongs to the mortgagor, Is regarded as an estate
distinct from the right vested in the mortgagee, and Is indefinite in
its duration.

STATUTES-CHANGE OF REMEDY.— BQUITY OF RB-
DBMPTION.— As the reserved estate of an equity of redemption Is
Indefinite in its duration, the legislature has power to refnlate it,
within reasonable bounds, so as to protect the Inteiesta and equl*
ties of both debtor and creditor.

CONSTITUTIONALITY OF •'REDEMPTION LAW.*'-€hapter
100 of the Laws of Elansas, of ISeS, concerning the sale and redemp-
tion of real estate, commonly known as the '"redemption law,** whethor
applied to existing or future contracts, is not in conflict with sectloa
, 10, article 1, of the constitution of the United States^ piovidiiif tliat m
A& Sb Rar.. Vol ZLUL->17

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268 B£V£KLY V. Babnitz. [Kansas,

state shall pass any law Impairing the obligation of contracts, as such
statute merely regulates the procedore upon the foreclosure of mort-
gages so as to define and make more certain the equity of redemption,
that indefinite estate Impliedly reserved by every mortgagor of real
property, and called into active existence only by the foreclosure.

Action by Martha Barnitz against John L. Beverly to obtain
judgment upon a note, and to foreclose a mortgage made in 1885.
The case first came up in Beverly v. Barnitz, 55 Kan. 451, in which
an appeal was taken from a judgment and an order directing the
sheriff to execute a deed to the plaintiff. The judgment of the
lower court holding that chapter 109 of the Laws of Kansas of
1893, commonly known as the "redemption law** did not apply
to mortgages given prior to the passage of that act, that this statute
relating to the sale and redemption of real estate was unconstitu-
tional, so far as it was intended to apply to mortgages previously
executed and delivered, and that the defendant was not entitled
to any right of redemption under the statute, for the reason that
the mortgage foreclosed was executed and delivered prior to the
enactment of said law, was there affirmed. The present case was
a motion for a rehearing, the question to be determined being
whether the court below should have ordered the sheriff to execute
to the purchaser a deed or a certificate of purchase.

E. A. McMath and William J. Scott, for the motion.

Ferry & Doran, against the motion.

*«« MARTIN, C. J. On November 1, 1885, George A. Kirk-,
land executed a negotiable promissory note to Martha Barnitz for
fifteen hundred dollars, payable in five years, with interest at
eight per cent per annum, and after maturity at the rate of twelve
per cent per annum, which note was secured by a mortgage on a
quarter section of land in Shawnee county, Kansas, appraisement
being waived. ^"^ The land was afterward sold to John L. Bev-
erly, subject to the mortgage. On January 21, 1893, an action
was commenced in the district court of Shawnee county to obtain
judgment upon said note and to foreclose said mortgage. On
July 7, 1893, a personal judgment was rendered for two thousand
one hundred and thirteen dollars and forty-six cents, bearing in-
terest from that date at the rate of twelve per cent per annum,
and forty-four dollars and ninety-five cents costs, and the land was
ordered to be sold for the payment of said judgment. On Janu-
ary 9, 1894, an order of sale was issued, and the property was sold
to Martha Barnitz by the sheriff on February 12, 1894, for two
thousand dollars. On February 19, 1894, John L. Beverly filed
a motion asking that, upon confirmation of the sale, the court



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Dee. 1895.] Beverly v. Barnitx. 268

otdfir, adjudge, and determine that said real estate is subject to
redemption, as provided by chapter 109 of the laws of 1893 (which
took effect March 17, 1893), and that the sheriff be ordered and
directed to maketothepurchaserthecertificate of sale mentioned in
said chapter, he being in actual possession of said real estate by his
tenant, the same never having been abandoned, but being occupied
in good faith. This relief was refused by the court, and it was or-
dered that the sale be confirmed and a deed executed by the
sheriff to the purchaser for said premises, holding that said chap-
ter 109 is unconstitutional, so far as intended to apply to mort-
gages previously executed and delivered. On a proceeding in
error in this court, said judgment was affirmed. The companion
case of Watkina v. Olenn, 55 Kan. 417, was decided at the same
time. The plaintiff in error asks a rehearing.

Does this statute impair the obligation of this prior contract?
If it does so in the slightest degree, it must be held unconstitu-
tional as to such contract. If, on ^^ the other hand, the act
affects only the remedy, or some provision of the contract which i8>
inoperative and void under the laws of Kansas where the contract
was made, then it must be held valid; and all legal presumptions,.
so far as this court is concerned, favor the validity of the acti*
Cooley's Constitutional Limitations, 216, 217. When Chief Jus^
tice Marshall delivered the opinion of the supreme court of the
United StatesinSturges v. Crowninshield, 4 Wheat. 122, the learn-
ing upon the inhibition, '"No state shall .... pass any .... law
impairing the obligation of contracts,'^ was well nigh exhausted,
lattie was left for other or subsequent judges of that tribunal but
to apply the law as there clearly laid down. The legislature of
New York had in 1811 enacted an insolvent law, which not
only purported to liberate the person of the debtor, but to dis-
cluurge him from all liability for any debt contracted previous to
his discharge, on surrendering his property in the manner pre-
scribed by the act; and it was held that, in so far as it pur-
ported to discharge a debtor from his obligation without per-
formance, it was invalid, but not so as to releasing the debtor
from imprisonment^ then a common and very persuasive remedy.
The court says (page 197): "A contract is an agreement in
which a party undertakes to do, or not to do, a particular thing.
The law binds him to perform his undertaking, and this is, of
course, the obligation of his contract In the case at bar, the
defendant has given his promissory note to pay the plaintiff a sum
of money on or before a certain day. The contract binds him
to pay that sum on that day; and this is its obligation. Any law



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260 Bevbblt v. Barnits. [Eaneas,

which releases a part of this obligation must^ in the literal seoae
of the word, impair it. Much more must a law impair it which
makes it totally invalid and entirely discharges it/'

^^ And again (pages 200, 201): ^The distinction between
the obligation of a contract and the remedy given by the legisla-
ture to enforce that obligation has been taken at the bar, and exists
in the nature of things. Without impairing the obligation of the
contract, the remedy may certainly be modified as the wisdom of
the nation shall direct. Confinement of the debtor may be a
punishment for not performing his contract, or may be allowed
as a means of inducing him to perform it; but the state may re-
fuse to inflict this punishment, or may withhold this means, and
leave the contract in full force. Imprisonment is no part of the
contract, and simply to release the prisoner does not impair its
obligation": See, also, Mason v. Haile, 12 Wheat 370; Beers v.
Haughton, 9 Pet. 329, 359; Penniman's case, 103 U. S. 714, 717.

In Bronson v. Kinzie, 1 How. 311, 315, 316, the court, speak-
ing through Chief Justice Taney, in respect to an lUinois mort-
gage, said: ^*Ii the laws of the state passed afterwards had done
nothing more than change the remedy upon contracts of this
description, they would be liable to no constitutional objection,
for, undoubtedly, a state may regulate at pleasure the modes of
proceeding in its courts in relation to past contracts as well as
future. It may, for example, shorten the period of time within
which claims shall be barred by the statute of limitations. It
may, if it thinks proper, direct that the necessary implements of
agriculture, or the tools of the mechanic, or articles of necessity
in household furniture, shall, like wearing apparel, not be liable
to execution on judgments. Begulations of this description
have always been considered in every civili2ed com-
munity as properly belonging to the remedy, to be exercised
or not by every sovereignty according to its own views of policy
and humanity. It must reside in every state to enable it to ^'^^
secure its citizens from unjust and harassing litigation, and to
protect them in those pursuits which are necessary to the exist-
ence and well-being of every community. And although a new
remedy may be deemed less convenient than the old one, and may
ill some degree render the recovery of debts more tardy and
difficult, yet it will not follow that the law is unconstitutional
Whatever belongs merely to the remedy may be altered according
to the will of the state, provided the alteration does not impair
the obligation of the contract. But if that effect is produced, it
it immaterial whether it is done by acting on the remedy of



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Dec. 1895.] Bbverly v. Babnits. 261

directly on the contract iteelf. In either case it is prohibited bj
the conatitation.''

In Terry y. Anderson, 96 U. S. 628, it was held that an enact-
ment reducing the time prescribed by the statute of limitations
in force when the right of action accrued is not unconstitutional,
provided a reasonable time be given for the commencement of a
suit before the bar takes effect The court says (page 633): ^'The
parties to a contract have no more a vested interest in a particular
limitation which has been fixed than they have in an unrestricted
right to sue.''

In Antoni y. Qreenhow, 107 U. 8. 769, 774, 776, although the
Virginia funding act of 1871 required the state to receive certain
coupons for all taxes and demands due her, and authorized the
writ of mandamus to compel the proper tax-collector to receive the
same, yet the act of 1882, which required the coupon holder to
first pay his taxes in cash and file his coupons in the court of
appeals, and, after a circuitous proceeding, receive back his cash in
Ueu of the coupons, was held to affect only the remedy, and not to
constitute an impairment of the contract.

In life Ins. Co. v. Cushman, 108 XT. S. 51, it was decided that
the Illinois statute of 1879, entitling the purchaser, in case of
redemption, to receive interest ^^^ upon his bid at the rate of
eight per cent per annum (the previous law prescribing ten per
cent), was applicable to all decretal sales of mortgaged premises
thereafter made, although the mortgage was given before the
passage of that statute; that such reduction in the rate of inter*
est did not impair the obligation of the contract between mort-
gagor and mortgagee, because the amendatory statute did not
diminish the duty of the mortgagor to pay what he agreed to pay
or shorten the period of payment, or affect any remedy which the
mortgagee had by existing law for the enforcement of his con-
tract; and that existing laws with reference to which the mort-
gagor and mortgagee must be assumed to have contracted are only
those which, in their direct or necessary legal operation, controlled
or affected the obligation of their contract And in the opinion
the court says (pages 64, 65): 'The rights of the purchaser at the
decretal sale, if one was had, were not of the essence of the mort-
gage contract, but depended wholly upon the law in force when
the sale occurred. The company ceased to be a mortgagee when
its debt was merged in the decree, or at least when the sale oc-
curred. Thenceforward its interest in the property was as pur-
chaser, not as mortgagee. And to require it, as purchaser, to con-
form to the terms for the redemption of the property as pre-



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262 Bevbbly V, Babnits. [Kansas^

•eribed by the statute at the time of purchaBe does not, in any
legal sense^ impair the obligation of its contract as mortgagee. It
assumed the position of a purchaser^ subject necessarily to the
law then in force defining the rights of purchasers/^

And again the court says (page 6Q): ^That the reduction of
interest to be paid to the purchaser would lessen the probable num-
ber of bidders at the decretal sale, and thereby diminish the
chances of the property bringing the mortgage debt, are plainly
contingencies that might never have *''* arisen- They could not
occur imless there was a decretal sale, nor unless the mortgagee
became the purchaser, and are too remote to justify the conclu-
sion, as matter of law, that such legislation affected the value of
the mortgage contract.'*

In Morley v. L. S. Ey. Co., 146 IT. S. 162, it was held that a
state was not forbidden, by the clause of the federal constitution
under consideration, from legislating, within its discretion, to
reduce the rate of interest upon judgments previously obtained
in the courts, the judgment creditor having no contract what-
ever in that respect with the judgment debtor. The court held
that the state law regulating the rate of interest on judgments
formed no part of the contract, and quoted approvingly (page 171)
from the opinion of Chief Justice Marshall in Ogden v. Saunders,
12 Wheat. 213, 343, as follows: "If the law becomes a part of the
contract, change of place would not expunge the condition. A
contract made in New York would be the same in any other state
as in New York, and would still retain the stipulation originally
introduced into it."

In Curtis v. Whitney, 13 Wall. 68, the court held that a stat-
ute which required the holder of a tax-sale certificate, made be-
fore its passage, to give three months' notice, with a copy of the
certificate, the name of the holder, and the time the deed will be
applied for, to an occupant of the land, if there be one, before he
takes his tax deed, does not impair the obligation of the contract
evidenced by the certificate, and accordingly a tax deed was ad-
judged void for want of the notice. Mr. Justice Miller, in de-
livering the unanimous opinion of the court, said (pages 70, 71):
"That a statute is not void because it is retrospective has been
repeatedly held by this court, and the '*'''* feature of the act of
1867 which makes it applicable to certificates already issued for
tax sales does not of itself conflict with the constitution of the
United States, nor does every statute which affects the value of a
contract impair its obligation. It is one of the contingencies to
which parties look now in making a large class of contracts that



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Dec. 1895.] Bbvbblt v. Barnitc. 88S

they may be affected in many ways by state and national legisla-
tion. For snch legislation dcipianded by the public good, how-
ever it may retroact on contracts previously made^ and enhance
the cost and difficulty of performance, or diminish the value of
such performance to the other party, there is no restraint in the
federal constitution, so long as the obligation of performance re-
mains in full force.''

In each of the foregoing cases, except Bronson v. Kinzie, 1 How.



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 30 of 121)