Paige, 98; Young v. Hill, 67 N. Y. 162, and cases there cited. Our statute is but the recognition and embodiment of that principle, and for the courts to attempt to abnegate or abrogate it by construction would be an assumption as wicked as unwarrantable. Counsel's contention that the several sections of a statute relating to one subject should be construed separately, and not in pari materia, not only is not supported by any authority, but is in conflict with the elementary rules of statutory construction. Section 1265, Rev. St., declares in words, "Compound interest is not allowed, but a debtor may agree in writing to pay interest upon interest overdue at the date of such agreement." By section 1266, Rev. St., whenever it appears that unlawful interest has been contracted for, "whether the unlawful interest is contested or not," it is provided that "in no case where unlawful interest is contracted for must the plaintiff have judgment for more than the principal sum less the payments already made, whether the unlawful interest be incorporated with the principal sum or not." The contention of counsel that we should ignore the universally recognized rules of construction for the purpose of evading the plain, unambiguous provisions of the statute has all the persistency of Bassanio's plea with- | out the merit arising from the circumstances. Since the filing of petition for a rehearing, appellant has applied for a restitution of premises under the provisions of section 4825, Rev. St. The appellant is entitled to restitution, and the district court is directed to issue an order to that effect, it appearing from the record that the premises have been sold under the decree of the district court, and have been purchased by plaintiff. Rehearing denied. SULLIVAN, C. J., and QUARLES, J., con eur. (5 Kan. A. 451) SELDERS v. BOYLE. 'Court of Appeals of Kansas, Northern Department, C. D. June 16, 1897.) HOLIDAYS-JUDGMENTS - ENTRY-NOTICE - DORMANCY-REVIVAL-PRACTICE. 4. In an action upon a promissory note, tried to a jury, and in which the jury returns a verdict for the plaintiff for a certain amount, it is the duty of the clerk, under the provisions of section 409 of the Civil Code, to immediately enter judgment upon the journal of the court for the amount of the verdict, unless otherwise directed by the court; and if he fails so to do he may thereafter enter the same, the form thereof being approved by the court, without notice to the defendants, at any time before the rights or interests of third parties intervene which may be affected by such entry without notice. (Syllabus by the Court.) Error from district court, Cloud county; F. W. Sturges, Judge. Application by Ellen Boyle, executrix of the last will of John Boyle, deceased, against George V. Selders, to revive a dormant judgment. The judgment was revived, and defendant brings error. Affirmed. Kennett & Peck, for plaintiff in error. Pulsifer & Alexander, for defendant in error. MAHAN, P. J. The testator of the defendant in error recovered a judgment in the district court of Cloud county for $450 on the 11th of September, 1890, but no entry thereof was made on the journal of the court. December 1, 1891, execution was issued, and returned nulla bona. January 9, 1893, an alias execution was issued. On the 30th of September, 1893, John Boyle died, and the defendant in error was duly appointed as executrix under his will, and qualified as such on the 12th of December, 1893. On the 10th of March, 1894, the clerk entered the judg ment of the court that should have been entered on the verdict of the jury on September 11, 1890. Upon the 29th of November, 1894, which was Thanksgiving Day, the application of the defendant in error, as executrix of John Boyle, to revive the judgment in her name, came on to be heard before the judge of the district court of Cloud county, at chambers, who made an order reviving said judgment on that day. The plaintiff in error presented a bill of exceptions which was duly allowed by the court, and filed with the cause, and the case is here for review upon the proceedings in revivor only. There are six assignments of error: First. That the judge erred in proceeding to hear the motion to revive upon Thanksgiving Day, claim 1. There is no statute in this state precluding The courts or judges of this state from discharging the duties of their offices upon Thanksgiving that it was not a day upon which judicial ing Day. 2. In a proceeding to revive a dormant judgment in the name of the executor of the deceased judgment creditor, a notice properly entitled in the case, containing the matters required to be contained in a notice of an application of revivor, signed by the clerk of the court, and attested by the seal of the court, and containing a command to the sheriff to serve the same upon the defendants therein named, is a sufficient notice, and is sufficiently signed. 3. In a proceeding to revive a dormant judg ment in the name of the executor of a deceased judgment creditor, the defendants cannot attack the validity of the judgment for the reason of any irregularity in the proceedings of the court rendering the same, it appearing that the court had jurisdiction of the parties defendant and the subject-matter. proceedings could be had under the statutes of Kansas. Second. That the judge committed error in proceeding to hear the application on the notice served, contending that the notice was not sufficient under the statute. The third is that the judge erred in admitting in evidence the record of the judgment on the journal of the court. The fourth is that the judge erred in his findings of fact, assignment is to the same effect. The fifth and the sixth is that the judge erred in reviving the judgment at all. There is no statutory prohibition against judicial proceedings on Thanksgiving Day. By the common law, a holiday was a day upon which Judicial proceedings could be had. In the absence of statutory provisions forbidding the judges of courts to hear and determine matters upon a holiday, a judicial proceeding upon that day is not void, and the judge committed no error in this case in proceeding to hear the motion to revive. Under the second assignment the contention is that the notice is not signed by any one having authority to sign the same. The notice is entitled in the case properly. In the body of the notice there is sufficient, in substance, to conform to the statute. About this there is no contention. At the conclusion of the notice, on the opposite side of the paper on which it is written, the clerk of the court adds a command to the sheriff to serve the foregoing notice upon the defendant in error, and make due return thereof; and this is attested by the signature of the clerk of the court, with the seal of the court attached. This notice was served by the sheriff in the ordinary manner of serving summons, which is sufficient under the statute. The notice, in substance and form, is sufficient; and, even if it were not, the plaintiff in error made a general appearance, and contested the notice upon the merits; and, having done so, cannot now question the sufficiency thereof or the jurisdiction of the court to hear the same. which last Code ours was copied. The supreme court of Ohio, in Young v. Shallenberger, 41 N. E. 518, construes this provision the same as our own supreme court in the cases cited, supra. In addition to the authorities above cited, that the judge and the clerk of the court had a right to complete the record without notice to the defendant, see Freem. Judgm. (3d Ed.) 64. The court had acquired jurisdiction in the first instance, and, having acquired jurisdiction of the person of the defendant, and having jurisdiction of the subject-matter, it had jurisdiction to direct the journal entry to be recorded without notice. Walden v. Craig's Heirs, 14 Pet. 147. But, even if this were not so, if the judge or clerk, or both together, had not the authority to make this record speak the truth without committing error, as the judge and clerk did in this case, without notice to the defendant, there being no intervening rights of other parties, yet the result must be the same, because the attempted attack upon the regularity of this judgment is a collateral attack, and the record in this case was not open to the attempted attack made upon it by the defendant, plaintiff in error. Upon the suggestion that this judgment was not open to collateral attack in this proceeding, see Freem. Judgm. §§ 135, 455; Terry v. Sharon, 131 U. S. 40, 9 Sup. Ct. 705; In re Watson, 30 Kan. 753, 1 Pac. 775; Waggoner v. Dubois, 19 Ohio, 67; Vredenburgh v. Snyder, 6 Iowa, 39; Cooper v. Reynolds, 10 Wall. 318. It The contention under the fourth and fifth assignments of error are covered by this conclusion. The fourth is based upon the admission in the record of the judgment. importing absolute verity, and not being open to impeachment or attack in this proceeding, was competent evidence, and the admission thereof by the court was not error, and the finding of the court based thereon was not error. The sixth assignment is based upon these contentions, and falls with them. The third assignment of error is based upon the fact that the journal entry was not absolutely spread upon the records of the court, that is, the judgment of the court was not recorded until after the death of the plaintiff, the judgment creditor,-and that the entry upon the journal was made without notice to the defendant, and is not, in effect, a nunc pro tunc entry. It was assumed by the counsel for the plaintiff that the judgment of the court had been recorded, and execution had been issued thereon, but, discovering that there was upon the journal of the court no record of the judgment, one was prepared, and sent to the judge who tried the case, during his term; and by his direction, the form having been approved by him, the clerk recorded the same. The action was upon a promissory note for the recovery of money. There was a verdict for the plaintiff for the amount of the judgment disclosed by the record. There was a motion for a new trial, which was overruled. A memorandum of the judgment was entered upon the appearance docket at the time by CHICAGO, R. I. & P. RY. CO. v. CAMPthe clerk, giving its date. The judgment was also entered upon the judgment docket as prescribed by the statute. The only omission was the clerk's failure to record it upon the journal, as the statute required him to do upon the incoming of the verdict. Civ. Code, § 409; Pleasant View Tp. v. Shawgo, 54 Kan. 742, 39 Pac. 704; Church v. Goodin, 22 Kan. 527; Franklin v. Merida, 50 Cal. 293. The provision of the Code of California in this regard is the same as that of Kansas, and the same as the Ohio Code, from 49 P.-21 There was no injustice done in this case. The court did that which ought to have been done. The contentions of plaintiff in error have no merit, being purely technical. The judgment is affirmed. All the judges concurring. BELL. (5 Kan. A. 423) (Court of Appeals of Kansas, Northern Depart- 2. In determining the faith and credit to be given to proceedings of a sister state under the federal constitution and acts of congress, the question of jurisdiction of the court of the sister state is always open to inquiry. 3. In attachment proceedings, in order to give a court jurisdiction to condemn the property attached or garnished, and appropriate the same to the payment of the claimant's debt, it is necessary that the court acquire jurisdiction of the principal defendant, either by actual service or constructive service, conformable to the rules prescribed by the statute of the sister state. 4. Under the provisions of the Iowa Code introduced in evidence in this case, in order to give the Iowa court jurisdiction to condemn the fund garnished, the publication notice must be preceded by an affidavit filed in the case by the plaintiff, that service of summons cannot be made in the state. 5. Giving to the proceedings of a sister state the same faith and credit that are given to like proceedings by the courts of such sister state is a compliance with the provisions of the federal constitution and the act of congress requiring each state to give full faith and credit to the judgments and judicial proceedings of the sister state. (Syllabus by the Court.) Error from district court, Republic county; F. W. Sturges, Judge. Action by David Campbell against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed. M. A. Law and W. F. Evans, for plaintiff in error. V. D. Bullen and Thos. Dever, for defendant in error. MAHAN, P. J. In this case there was a judgment below for less than $100, and the case comes here upon appeal, upon the certificate of the district judge that the case involves the construction of the constitution of the United States and the acts of congress. Under the decision of the supreme court in the case of Railway Co. v. Kimball, 48 Kan. 384, 29 Pac. 604, we are limited in our investigation of the case to this one question. The contention is that the court below did not give that faith and credit to the proceedings of the courts of Iowa which is guarantied to the plaintiff by the provisions of the constitution of the United States and the acts of congress in pursuance thereof. Where a party relies upon the proceedings or judgment of the courts of one state as a cause of action or ground of defense, the question of jurisdiction is always open. The supreme court of the United States tras so decided in Pennoyer v. Neff, 95 U. S. 714; St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354; Thompson v. Whitman, 18 Wall. 457; Board of Public Works v. Columbia College, 17 Wall. 521. The jurisdiction of the Iowa court, the proceedings of which are pleaded as a defense in this case, is attacked upon two grounds. The first is that the Iowa court never obtained jurisdiction of the subject-matter or res; that is, the indebtedness of the plaintiff railway company to the defendant in error. And, second, that the proceedings disclose a fatal defect in the jurisdiction of the court, in that the statute of Iowa was not complied with in such a manner as to give the Iowa court jurisdiction to conclude the defendant in error by any judgment rendered in the case. The first question has been settled by our supreme court in the case of Railway Co. v. Sharitt, 43 Kan. 375, 23 Pac. 430. The facts in this case are the same as in the Sharitt Case, with this exception: In the Sharitt Case the claim attempted to be subjected to garnishment proceedings was exempt under the laws of Missouri, while in the case before us, under the laws of Iowa, the claim was not exempt to the defendant in error. However, I cannot see that this makes any difference in the applicability of the principle decided by the court in the Sharitt Case to this case. However, it is not necessary or proper that we should express any opinion upon the correctness of that decision, or determine the question in this case, and indeed we do not, because, in our view of the case, the proceedings offered in evidence and pleaded by the plaintiff in error (defendant below) disclose such a defect therein as to leave the court of Iowa without any jurisdiction to condemn the claim of the defendant in error. The plaintiffs in error offered in evidence several sections of the Iowa law in support of their contention that the Iowa court had jurisdiction, and had the right to adjudicate the question conclusively as against the defendant in error. Among other portions of the Iowa law offered is section 2618 of the Code of Iowa of 1873, as follows: "Sec. 2618. In What Actions and When Made. Service may be made by publication when an affidavit is filed that personal service cannot be made upon the defendant within this state in either of the following cases." The fifth provision of the section is as to attachment and garnishment proceedings. Upon a careful investigation of the transcript of proceedings offered in evidence, it appears that no affidavit was in fact ever filed. The case in Iowa was first begun before a justice of the peace by one Willard against the defendant in error, in which the Rock Island Company was garnished. Judgment of condemnation was made without any affidavit for publication, and then the case was appealed by the plaintiff in error to the district court, and was pending in the district court at the time of the trial of this case in the court below. The district court obtained no jurisdiction by the appeal, the justice of the peace having none. The supreme court of Iowa, in the case of Fuller v. Riggs, 66 Iowa, 328, 23 N. W. 730, consider this matter, and hold that without the proper affidavit the court was without any jurisdiction, and any judg ment against the defendant was void for want thereof. In this case there was an affidavit filed, but it did not conform to the requirements of section 2618 of the Code, to which the court makes special reference. The court held the same way in the case of Taylor v. Ormsby, 66 Iowa, 109, 23 N. W. 288. Our own supreme court passed upon this same question in the case of Adams v. Baldwin, 49 Kan. 781, 31 Pac. 681, and held that no judgment can be rendered without this affidavit being first made, in the absence of personal service, and that a publication notice without the affidavit does not give the court jurisdiction. If we give the same effect to this proceeding that the supreme court of Iowa would give to it, we have conformed fully to the acts of congress and to the constitution of the United States. The evidence discloses an absence of jurisdiction of the Iowa court where the case was said to be pending, and consequently is no defense to the plaintiff in error against the claim of the defendant in error for his wages. The judgment is affirmed. All the judges concurring. (5 Kan. App. 880) NAILL v. LEBOLD. (Court of Appeals of Kansas, Northern Department, C. D. March 22, 1897.) DIRECTING VERDICT. Lebold commenced her action in replevin against David W. Naill for possession of personal property. Defendant answered that he held the property by reason of an execution levied in an action against Conrad H. Lebold; that the property was the property of Conrad H. Lebold, and subject to levy. Evidence examined, and held, that there is no evidence in the case tending to show that the property was the property of Conrad H. Lebold, or that the property was subject to said execution, and that the evidence does not prove, or tend to prove, any fact or state of facts upon which the jury could have found for the defendant. Therefore the court properly instructed the jury to return a verdict for the plaintiff. (Syllabus by the Court.) Error from district court, Dickinson county; James Humphrey, Judge. Action by Fonnie H. Lebold against David W. Naill. Judgment for plaintiff. Defendant brings error. Affirmed. J. H. Mahan, for plaintiff in error. C. F. Mead, for defendant in error. MCELROY, J. On the 20th day of November, 1891, Fonnie H. Lebold commenced her action in replevin against David W. Naill, and alleges in her petition that she is the owner and entitled to the possession of the property therein described, consisting of 256 yards of carpet and one mirror, all of the value of $220.75. The petition contains all the necessary allegations of a replevin petition. The defendant answered that he held the property by reason of an execution levied thereon in an action against Conrad H. Lebold, and that the property was the property of said Conrad H. Lebold, and subject to levy under execution. The plaintiff introduced her evidence, and rested. The defendant introduced his evidence, and rested. The court instructed the jury "to return a verdict for the plaintiff," to which the defendant excepted. The defendant filed a motion for a new trial, which was overruled and excepted to; and he brings the case here for review, and assigns as error the action of the court in directing the jury to return a verdict for the plaintiff, and in overruling his motion for a new trial. We have examined the evidence in this case, and it fully sustains the allegations in plain tiff's petition. There is no evidence in this case tending to show that said property was the property of Conrad H. Lebold, or that the property was subject to said execution. The evidence does not prove, or tend to prove, any fact, or state of facts, upon which the jury could find for the defendant. The trial court committed no error in instructing the jury to return a verdict for the plaintiff. The judgment of the lower court is affirmed. MAHAN, P. J., having been of counsel, not sitting. WELLS, J., concurs, (5 Kan. App. 429) HILTON v. BOARD OF COM'RS OF SALINE COUNTY. (Court of Appeals of Kansas, Northern Department, C. D. May 13, 1897.) CITY ASSESSOR-COMPENSATION OF ASSISTANTS. A city assessor is not prima facie entitled to collect in his own name three dollars per day for all the assistants he may employ in making and returning the assessment of a city of the second class. (Syllabus by the Court.) Error from district court, Saline county; R. F. Thompson, Judge. Action by C. T. Hilton against the board of county commissioners of Saline county. Judgment for defendant. Plaintiff brings error. Affirmed. David Ritchie, for plaintiff in error. R. A. Lovitt, for defendant in error. WELLS, J. The facts of this case, as the same appear from the record, are substantially as follows: In February, 1893, C. T. Hilton was appointed as city assessor for the city of Salina, Kan., and was engaged personally in the duties of said office 65 days. His daughter, Daisy M. Hilton, helped her father in making said assessment 70 days, and his wife, J. H. or H. J. Hilton, 38 days. He was paid $300 for his services, and presented a bill for $219, claimed as a balance due him, which claim was disallowed by the county commissioners of Saline county; whereupon suit was brought for said sum before a justice of the peace of said county, and from there was appealed to the district court. Upon the trial in the district court the plaintiff presented his evidence, and rested; whereupon the defendant demurred thereto, which demurrer was sustained by the court, a motion for a new trial duly made, overruled, and excepted to, and the matter brought to this court on petition in error for review. There are two errors complained of: First, that the court erred in sustaining the demurrer to the evidence; second, that the court erred in overruling the plaintiff's motion for a new trial. These together constitute in fact but one ground of error, and the sole question is, did the plaintiff make a prima facie case establishing his right to recover? There are two questions discussed in the briefs herein: First. Were D. M. Hilton and J. H. Hilton lawful deputies of C. T. Hilton, city assessor? Second. Can C. T. Hilton recover, under the evidence in this case, for services performed by D. M. Hilton and J. H. Hilton? Under our view of the proper answer to be given to the second question, we do not consider it necessary to discuss or decide the first. Paragraph 6920, Gen. St. 1889, says: "Township or city assessors shall receive $3.00 per day for each day actually and necessarily employed in assessing the property of their township or city, and in making the return thereof, to be paid by the respective county. The account for such services shall be verified by the affidavit of the assessor; but the board of county commissioners may have the power to make the aggregate amount less than charged: provided, it shall appear to them that full time was not made by the assessor for which he has charged; and any such assessor shall have authority to appoint a deputy, whose compensation shall be the same as the principal." This does not provide that the assessor shall receive pay for the services of his deputy, but it says "whose [the deputy's] compensation shall be the same as the principal," clearly indicating that the deputy is the real party in interest in a proceeding to recover pay for services as such. Neither is it necessary to decide whether an assessor may not employ a clerk to do the clerical work of copying, and recover for the reasonable value of said services paid, or perhaps assumed to be paid, by him therefor, as there is no evidence in this case upon which to base any such claim. We only decide in this case that a city assessor is not prima facie entitled to collect in his own name three dollars per day for all the assistants he may employ in making and returning the assessment of the city. The judgment of the court below will be affirmed. All the judges concurring. (5 Kan. App. 437) NATIONAL BANK OF LANCASTER v. MACKEY et al. (Court of Appeals of Kansas, Northern Department, C. D. June 16, 1897.) ACTION ON NOTE-FRAUD-KNOWLEDGE of INDORSEE. 1. In an action upon a negotiable promissory note in the hands of an indorsee, an answer that avers that the note was procured by false and fraudulent promises upon the part of the payees ¦ therein named, in that they falsely and fraudulently promised the makers, to induce them to buy a stallion and pay $400 in cash and give their three several notes for $1,200, payable in one, two, and three years, that they would at the end of the first year receive the stallion back, refund the $400, return the notes, and pay to the makers $100 in money for the keeping of the horse, when in truth they did not intend so to do, but made the promise solely for the purpose of obtaining the money and the notes, and that the plaintiff took the note with the knowledge of these facts, states a good defense to such action. 2. The record in this case examined, and found to contain suflicient evidence to sustain the verdict of the jury upon said defense. (Syllabus by the Court.) Error from district court, Geary county; James Humphrey, Judge. Action by the National Bank of Lancaster against W. H. Mackey, Jr., and Henry Staats. Judgment for defendants. Plaintiff brings error. Affirmed. Stambaugh & Hurd, for plaintiff in error. J. R. McClure, for defendants in error. MAHAN, P. J. The plaintiff in error brought this action against the defendants in error to recover $400 on a promissory note made on the 23d of February, 1891, and due three years after date, payable to the order of O. L Thisler and James Spillman, and by them indorsed to the plaintiff bank. The defendants. answered that the note was procured from them by Thisler and Spillman fraudulently, through false representations, in this: that for the purpose of inducing the defendants to purchase a stallion at a price of $1,600, and pay thereof $400 in cash, and give their three several promissory notes for the remaining $1,200, the said Thisler and Spillman would at the end of one year take the horse back, and refund the money paid, and surrender the notes, allowing the defendants the use of the stallion for the year, and pay them an additional $100; that said promise was false and fraudulent, in that it was made simply for the purpose of inducing the defendants to part with their $400 and make the notes, without any intention on the part of Thisler and Spillman of keeping said promise. The answer further denied that the plaintiff was an indorsee for value without notice of this defense. The case was tried to a jury in the Geary county district court at the October, 1894, term of said court. At the conclusion of the defendants' evidence the plaintiff demurred thereto, which demurrer was by the court overruled. The plaintiff offered no evidence. The trial resulted in a verdict for the defendants. A motion for a new trial was overruled, and the case is here for review. The assignments of error are that the court erred in overruling the demurrer of the plaintiff to the defendants' evidence; that the verdict and judgment are not sustained by the evidence, and are contrary to law; that the judgment and verdict should have been for the plaintiff instead of the defendants; that the court erred in denying a motion for a new trial; and that the court erred in entering judgment for the defendants upon the verdict. There are in fact but two questions presented: The first is, does the answer allege facts sufficient to constitute a defense to the note in the hands of an indorsee? And the second is, was there sufficient evidence to support the averment that the note was obtained through false and fraudulent representations, to such an extent as to throw the burden upon the plaintiff of proving that in fact it was an indorsee for value? The note became due and payable on the 23d of February, 1894, and it was stipulated on the trial that |