questions, the court erred in considering only the validity of the mortgage, executed to Horsfall, upon its face, and apart from the fact of possession, which was produced in evidence. Inasmuch as the motion for a new trial declared (1) that "the finding and decision of the court in the cause is not sustained by sufflcient evidence," and (3) that "the finding and decision of the court is contrary to the evidence and law," and (4) that the court erred "in sustaining the plaintiff's objection to the introduction of the mortgage given by the Will T. Little Company to Horsfall, offered in evidence by the defendant, and for excluding the same," and inasmuch as it is assigned för error here that (3) "the court erred in ruling out evidence and testimony offered by these plaintiffs in error on the trial of this cause, to which plaintiffs in error at the time duly excepted," and (4) the court erred in overruling the motion of this plaintiff in error W. J. Horsfall, cashier of the Guthrie National Bank, for a new trial, this point is properly raised for the consideration of this court. Little, the plaintiff in error, testified that he was the "president of the company that signed a mortgage to W. J. Horsfall, and also to the plaintiffs in this action, and that he had turned over the stock of goods to McNeal, president of the Guthrie National Bank, and that he afterwards gave a mortgage to Burnham, Hanna, Munger & Co." McNeal testified that he "was president of the Guthrie National Bank, and that, about the 20th day of April, Little, being sick at home, sent for him; that he went down to see him; and that Little then stated to him that he had concluded that he was unable to pay his debts, and wanted him to take possession of the goods, and, if anything else was left, to turn it over to Burnham, Hanna, Munger & Co." Miller, the agent of the defendants in error, also testified that Little told him that "he could not turn the stock over to me, because the Guthrie National Bank had demanded the stock." There was no evidence contradicting this testimony. At the time the cause was taken from the jury, it therefore stood as an undisputed fact in the record that, prior to the execution of the mortgage to Burnham, Hanna, Munger & Co., the plaintiff in error was in possession of the stock of goods by the agreement of the mortgagor. While the mortgage to Horsfall was, taken alone and "upon its face," void, yet the law is that, notwithstanding its invalidity, it was yet good as between the mortgagor and the mortgagee, and valid as to all creditors obtaining liens upon it subsequently to the time at which the mortgagees took actual possession under their mortgage. While the mortgage would have been void as to creditors attaching, or in execution prior to the time at which the bank took possession, yet the mortgage was good as between the parties to it; and when the plaintiff in error had obtained possession by the consent of the mortgagor, and had proceeded to the appropriation of the goods to the payment of the debt due to the

In

Guthrie National Bank, according to the terms of the mortgage, it was completely good as against creditors asserting their rights under liens acquired subsequent to such possession. Brown v. Webb, 20 Ohio, 390, where it is said that "a mortgage of personal property, where the mortgagor retains possession by virtue of the mortgage, with a power of sale, is void, as against subsequent purchasers, and execution creditors; but, when possession is taken by the mortgagee, the mortgage becomes valid, so as to protect the mortgaged property from execution creditors not having made a levy, and against subsequent purchasers from the mortgagor." Nash v. Norment, 5 Mo. App. 545; Eastman v. Water-Power Co., 24 Minn. 437; Chapman v. Weimer, 4 Ohio St. 481; McTaggart v. Rose, 14 Ind. 230; Dayton v. Bank, 23 Kan. 299; Bank v. Sargent, 20 Kan. 576; Cameron v. Marvin, 26 Kan. 626. the latter case, the supreme court of Kansas, all the justices concurring, adopts the statement of the law upon the point as contained in Jones, Chat. Mortg. § 178, as follows: "If a mortgagee takes possession of the mortgaged chattels before any other right or lien attaches, his title under the mortgage is good against everybody, although it be not acknowledged and recorded, or the record be ineffectual by reason of any irregularity. The subsequent delivery cures all such defects. *** Delivery of possession under a mortgage before rights have been acquired by others will cure any invalidity there may be in the instrument, * or from its containing a provision which makes it void except as between the parties." And the supreme court of Kansas, in the last-named case, declare that "this statement of the law is undoubtedly in accordance with the great weight of authority."

* 串

This is an action in replevin, in which the gist of the action is the wrongful detention of the goods. The case could not have been passed upon by the district court but by taking into consideration all the evidence offered tending to show who was in possession, and how that possession had been obtained. The judgment signed by the district judge, undertaking to set forth a finding of fact, stated that "the defendant Horsfall, cashier of the Guthrie National Bank, took possession of the stock of goods in controversy, under and by virtue of the chattel mortgage," etc., and that the court could not as a matter of law and right, and did not as a matter of fact, undertake to ignore the evidence produced before it to the jury, and in the case for consideration at the time the case was taken from the jury to be determined upon "legal questions." We think, then, that the trial court, in considering this case, and rendering its decision, should not have confined its attention to the mortgage "upon its face," and apart from the evidence, if it had in fact done so, "both parties having elected to submit the cause upon the validity of the chattel mortgage in question." Accompanied by possession, the legal rights of the plaintiff in error the Guthrie Na

tional Bank were entirely different from what they would have been had it, as mortgagee under the mortgage in question, remained out of possession. We think that the submission of | the cause upon the validity of the mortgage should be interpreted to mean the submission of the cause as the facts had at the time of that submission been shown to be. The judgment of the court below is therefore reversed, and the case remanded to the district court, with direction to enter judgment for the plaintiffs in error. All the justices concur, except DALE, C. J., who was of counsel.

(58 Kan. 317)

ATCHISON, T. & S. F. R. CO. v. HOLLAND. (Supreme Court of Kansas. June 5, 1897.) NEW TRIAL-WAIVER-SPECIAL FINDINGS-INCON

SISTENCY.

1. A motion for judgment on special findings, notwithstanding the general verdict, and one for a new trial, may be filed by the defendant at the same time; and the submission and decision of the former motion will not operate as a waiver of the latter.

2. Where special findings upon a material issue are contrary to the evidence and inconsistent with each other, indicating that the jury did not fairly and intelligently consider the case, the general verdict should be set aside, and a new trial granted.

(Syllabus by the Court.)

Error from district court, Cowley county; A. M. Jackson, Judge.

Action by Lou Holland against the Atchison, Topeka & Santa Fé Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

A. A. Hurd and M. G. Troup, for plaintiff in error. Madden & Buckman, for defendant in error.

JOHNSTON, J. Lou Holland was struck and seriously injured by a passenger train of the Atchison, Topeka & Santa Fé Railroad Company, at a crossing near the station of Hackney, and she seeks to recover damages for the injuries sustained. Hackney is a hamlet consisting of a church, store, station house, and a few residences. At that point the railroad runs in a southwesterly direction, while the wagon track runs north and south, and crosses the railroad track about 250 yards south of the station house. The country in the vicinity of Hackney is nearly level, but the grade of the railroad slightly descends to the south. There is a curve in the railroad about 275 yards north of the station house, leaving an unobstructed view of the track for about 525 yards north of the crossing. The station house is west of the railroad track, and between it and the wagon road. Above the crossing, and where the highway nears the station house, the wagon track angles over to the railroad, and they come together at a point about 40 rods north of the crossing. From that point the wagon track parallels the railroad to the crossing, the two tracks being only

from five to eight feet apart. At the crossing the highway turns somewhat abruptly to the east over the railroad track. For many years Lou Holland had lived near the railroad track, and about half a mile south of the crossing. On the day of the injury, she went to Winfield in a buggy to which was hitched a single horse, and on the evening of that day started south, on her way home. As she approached Hackney, she was aware that a train was past due, and she states that she kept a lookout for the same. She says that she looked several times before angling over to the railroad, and also while driving close to and parallel with the railroad track for a distance of about 40 yards to the crossing, but did not see or hear a coming train. While paralleling the track, her back was towards the coming train, and when she turned upon the track, and had passed nearly over the same, the locomotive struck the hind wheel of her buggy, throwing her out, and causing the injuries complained of. In her petition she charges that the railroad company was negligent in failing to sound the whistle 80 rods from the crossing, and she alleges that the employés of the company operating the train "failed and neglected to sound the whistle or ring the bell or otherwise warn this plaintiff of the approach of said train, and, without slacking the speed thereof, carelessly, negligently, and wantonly ran into and against the plaintiff and her buggy, causing the injuries above set forth." The speed of the train is alleged to have been at a rate of from 35 to 50 miles an hour. A general verdict awarding plaintiff below $6,200 as damages was returned by the jury, and with it a number of special findings. The company at once filed a motion asking judgment on the special findings, notwithstanding the general verdict, and upon the same day filed a motion for a new trial. Six days afterwards the motion for judgment on the special findings was considered and overruled, and immediately afterwards the motion for the new trial was refused.

It is contended that the two motions are inconsistent, and that the filing of the first operated as a waiver of the motion for a new trial. We think no such consequence follows the filing of the two motions. Each is an attack on the general verdict, and if it is not set aside upon the first motion, and judgment given on the special findings, the court is asked upon the second motion to set it aside, and grant a new trial. Probably a written motion for judgment on the findings is not essential. When inconsistent with the general verdict, they control, and it is the duty of the court, with or without formal application, to give judgment accordingly. Civ. Code, § 288. If such a motion is filed, and the decision thereon is not promptly given, a party cannot safely defer his motion for a new trial. If the findings settle the case a new trial should not be asked for or allowed, and if the court fails to reach a conclusion upon the first motion, or for any reason postpones its decision be

yond three days after the verdict is returned, no opportunity is given to obtain a new trial. The pendency of a motion for judgment on the findings affords no excuse for a delay in filing the motion for a new trial more than three days after the rendition of the verdict. A motion filed after that time is a nullity. City of Osborne v. Hamilton, 29 Kan. 1. We think the two motions may be pending at the same time, and that the motion for the new trial is not waived by a motion for judgment on the special findings, notwithstanding the general verdict. Luse v. Railway Co., 57 Kan. 361, 46 Pac. 768; 16 Am. & Eng. Enc. Law, 636; Elliott, Gen. Prac. § 995.

It is contended that the jury did not give the case a fair and intelligent consideration, and that this appears from the inconsistency of the special findings with each other and with the general verdict; and there is a further contention that the verdict is without support, and that several important findings are contrary to the testimony. The failure to give the statutory signals as the train approached the crossing where the injury occurred is chiefly relied on as a ground of negligence. The locomotive whistle was sounded for the station a short distance north of the post designating where the whistle should be sounded for the crossing; and, while those in charge of the train testified that they also sounded the whistle for the crossing, there is testimony tending to show that they did not, and therefore there was evidence from which an inference of negligence might be drawn by the jury. The company claims that the injury resulted from the contributory negligence of the plaintiff below, and there is considerable in the evidence tending to sustain the claim. The care exercised by her before and at the time of the injury was therefore an important consideration for the jury, and upon this question their findings cannot be reconciled with the testimony or with each other. She testified that she repeatedly looked and listened for the train as she approached the crossing, but did not see or hear it until she was upon the crossing. She states that she was aware that a train was due, and had looked for it several times before she reached that portion of the highway which runs parallel with the railroad. In going across to that part of the highway, the depot obstructed her view for a moment; but when she reached that point, and started southwest along and within from five to eight feet of the railroad track, she states that her view was obstructed. Although she testified that she could then see past the depot, and up the track, the jury answered that her view was obstructed by the depot. In answer to the eighth question, as to whether she could see an approaching train as she was about to cross the railroad, they responded: "No; the depot obstructed the view." In answer to the thirteenth, they say that she could have seen an approaching train Just prior to the time she attempted to cross the track if there had been no obstruction. In

answer to the fifteenth, they stated that the depot prevented the plaintiff from seeing an approaching train if she had looked for it just prior to driving on the crossing. Although the jury found that her view was obstructed, so that she could not see the approaching train, there is a finding that those in charge of the train could see her for a considerable distance before reaching the crossing. In answer to the twenty-fourth question, it is stated that the plaintiff could not obtain a fair view of the train as she was approaching the crossing without stopping her vehicle for that purpose, while she states that she did look, and did obtain a view, and saw no train approaching. How she could be in view of the men on the train and the train not within her view at the same time is not explained; and it was absurd to say that she could not get a fair view of the track without stopping her vehicle. The motion and noise of the same might have interfered with her hearing the train, but certainly could not have prevented her from obtaining a view along the track. Whether she exercised due care for her own safety just before attempting to cross the track was an issue in the case, and a matter of consequence. The plainest dictates of prudence and a sensible regard for her own safety required that, before attempting to cross, she should look and listen for the approach of the train, and take all reasonable precautions to avoid danger. As the trial court instructed the jury, "if the view of the track was partially obstructed, whereby she was unable to see an approaching train, then greater care was required on her part than would be if she had an open and extended view of the track." She was bound to know that a railroad crossing is a dangerous place, and is guilty of negligence unless she approaches it as if it were dangerous. If she went upon the track without exercising ordinary care and taking reasonable precautions for her own safety, she is guilty of contributory negligence, and cannot recover. The findings of the jury are to the effect that she could have seen the approaching train if there had been no obstruction, and yet the plaintiff berself says that, for a distance of from 100 to 150 feet before reaching the crossing, her view was not obstructed. It is obvious that the jury disregarded the testimony, and the findings indicate that the questions submitted were not fairly considered and determined. In other respects the findings show that the jury were heedless and inconsiderate. In her testimony, the plaintiff states that she was driving at the rate of from six to seven miles an hour when she approached the crossing, but the jury answer that she was only going about four miles an hour. In answer to the question if the employés of the company intentionally and wantonly drove the train upon and against the buggy in which she was riding, they say: "Yes, through neglect of duty." The petition alleged that the train was traveling at from 35 to 50 miles an hour. One wit

ness stated that it was running more rapidly than usual, and another that it was "running like the devil." The only witness who attempted to give the speed with any definiteness testified that it was running 35 or 40 miles an hour. Notwithstanding this testimony, and although the plaintiff below did not claim that the speed was greater than 50 miles an hour, the jury found that the train was traveling at the rate of 60 miles an hour. Objections are made to rulings upon the testimony, but we find nothing substantial in them; nor do we see any reason for criticising the instructions, unless it is the one charging the jury upon the subject of gross and wanton negligence. It is doubtful if there is anything in the testimony warranting the giving of such an instruction.

It is insisted that the testimony of the plaintiff below clearly demonstrated that she was guilty of contributory negligence, and therefore the demurrer to her evidence should have been sustained, or a verdict directed in favor of the company. There is sufficient proof of the negligence of the company, and, in view of the great speed at which the train was running and the testimony of the plaintiff herself as to the care she exercised, it cannot be said as a matter of law that she is guilty of such contributory negligence as will bar a recovery. As some of the findings, however, are coutrary to the evidence upon a material issue in the case, and are inconsistent with each other, we think that a fair trial of the case has not been had, and therefore the judgment will be reversed, and the cause remanded for a new trial. All the justices concurring.

new trial was heard and overruled. The record does not fairly present the question whether the case must be made, or time for making it extended by order of the court, within three days after the announcement of the ruling of the court, or whether it may be delayed until three days after the order is actually entered on the journal by the clerk. The language of the statute is that the case "shall be served within three days after the judgment or order is entered." In the judgment entry it is recited that on the 13th day of June, 1894, and before the aforesaid judg ment was entered of record, the defendants filed their additional motion for judgment on the verdict; and in the same entry it appears that, on the 15th day of June, 90 days were allowed for making and serving a case. Again, on page 293 of the record it is recited that "before a judgment was entered in this case, to wit, on June 13, 1894, said defendants filed their motion, of which the following is a copy." These recitals show, in the words of the statute, that judgment was not entered before the 13th of June, and time to make a case was given on the 15th of the same month. The trial judge having signed and settled the case, we cannot indulge presumptions in opposition to its recitals for the purpose of invalidating it.

This was an action of ejectment to recover a lot in the city of Emporia, with damages for its detention. It appears from the special findings in the case that on the 12th of June, 1874, David Owen borrowed from the Northwestern Mutual Life Insurance Company $2,700, for which he gave a mortgage on the lot in controversy. He having made default in the payment of interest, the company, on the 22d of May, 1878, commenced a suit in the circuit court of the United States for the district of Kansas to foreclose the mortgage. A chancery subpoena was duly issued, on which the deputy marshal made return of

(Syllabus by the Court.)

Error from district court, Lyon county; W. A. Randolph, Judge.

Action by David Owen against David Thomas and others. Judgment for plaintiff, and defendants bring error. Reversed.

Buck & Spencer and Charles E. Dyer, for plaintiffs in error. L. B. & J. M. Kellogg, Graves, Lambert & Dickson, and W. C. Simpson, for defendant in error.

ALLEN, J. The proceedings of the trial court are presented here by case-made, and objection is made to the consideration of the alleged errors, on the ground that the time to make a case was not extended by order of the court until four days after the motion for a

a judgment of foreclosure was entered, and on the 1st of September, 1879, the lot was sold by a master in chancery to the insurance company for $3,850. Owen, the defendant in that case, and plaintiff in this, was present at the sale, as was also Howard Dunlap. The sale was afterwards confirmed, and on November 28th the special master executed to the insurance company a deed, which was duly recorded on the 16th of December following. On the 4th of December, 1879, the insurance company conveyed the lot to Dunlap; and, on the 17th of December, Dunlap conveyed to the defendant David Thomas, by warranty deed, for the sum of $5,500; and Thomas thereafter collected the rent of the building, and has had possession of the property ever since. Other facts bearing on the question whether Owen was equitably estopped from asserting title to the lot were found by the jury, but it is unnecessary to state them in order to dispose of the case. Owen claimed, and the jury found, that the return

of the deputy marshal on the subpoena was false; that, in fact, no service of process from the United States circuit court was made on him before the judgment of foreclosure was entered. The district court held that the marshal's return might be contradicted, and the trial resulted in a judgment in favor of the plaintiff for the lot, and $3,600 damages for its detention. In the case of Goddard v. Harbour, 56 Kan. 744, 44 Pac. 1055, we had occasion to consider the question as to the conclusiveness on the rights of the parties of a sheriff's return of service of a summons. After a full consideration of the question, the conclusion was reached that "the return of a sheriff that he has served a summons on the defendant personally, being a matter as to the truth or falsity of which he has personal knowledge, is conclusive between the parties."

The question is now raised whether a judgment of the circuit court of the United States, sitting in Kansas, is to be treated as a domestic judgment, and the return of service of process by the marshal therefore conclusive, or whether it is to be regarded as merely on the same footing with foreign judgments, and open to attack for want of jurisdiction. In the case of Bridge Co. v. Fowler, 55 Kan. 17, 39 Pac. 727, it was held that "a judgment of the United States circuit court for the district of Kansas occupies the same footing as a judgment of the state court, and may be made the basis of a creditors' bill or other like equitable action in the state court brought to protect the rights of creditors in a trust fund which has been wrongfully appropriated or misapplied." This decision, though in a case involving different questions from those presented here, is directly in point on this proposition. To the same effect, see Walker v. Cronkite, 40 Fed. 133; Turnbull v. Payson, 95 U. S. 418; Bates v. Days, 17 Fed. 167; Adams v. Lisher, 3 Blackf. 241; Womack v. Dearman, 7 Port. (Ala.) 513; Adams v. Way, 33 Conn. 419; Williams v. Wilkes, 14 Pa. St. 228. The special findings in this case show the execution of the mortgage, a foreclosure thereof in the circuit court of the United States, the record of which shows jurisdiction In the court, and all proceedings regular and in due form, the execution of the master's deed under a sale duly made and confirmed, and possession taken and maintained by the defendant from December, 1879, till December, 1893, when this action was commenced. No attack is made on the record for fraud or irregularity, other than the claim of want of actual service of the subpœna. The marshal's return of service being conclusive be tween the parties, the master's deed conveyed a good title to the insurance company, which has passed by the mean conveyances before mentioned to the defendant Thomas, and, on the facts found, he was entitled to judgment against the plaintiff. The questions whether the five-years statute of limitations was a bar to the plaintiff's action, and whether the facts developed on the trial, and found by the jury,

estopped the plaintiff from asserting title against the defendants, so fully discussed by counsel, are rendered unimportant by the conclusion reached. The judgment must be reversed, with direction to the court below to enter a judgment on the special findings of the jury in favor of the defendants for costs. All the justices concurring.

(58 Kan. 283)

SUPREME LODGE OF ORDER OF SELECT FRIENDS v. DEY. (Supreme Court of Kansas. June 5, 1897.) BENEVOLENT ASSOCIATIONS-ACTIONS BY MEMBERS.

The general laws of a mutual benefit society, which, by the use of permissive words, only allow an appeal from the decision of an officer of the order, before whom the claimant of a death or disability benefit is required in the first instance to prosecute his claim, but which do not obligate him to appeal from an adverse decision as a conditon precedent to an action upon his certificate or policy of insurance, may, in the event of such decision, maintain an action in the courts for the recovery of his loss. (Syllabus by the Court.)

Error from district court, Crawford county; J. S. West, Judge.

Action by Daniel T. Dey against the Supreme Lodge of the Order of Select Friends. Judgment for plaintiff. Defendant brings error. Modified.

J. L. Denison, for plaintiff in error. Fuller & Randolph, for defendant in error.

DOSTER, C. J. In the case of Supreme Lodge v. Raymond, 57 Kan. 647, 47 Pac. 533, we had under consideration the question of the right of a holder of a benefit certificate in the plaintiff organization to resort to the courts to compel satisfaction of his claim. It was there held that "it is competent for a fraternal organization, which provides for the payment of benefits, to make reasonable rules or laws requiring those claiming benefits to submit their claims to designated officers or tribunals of the organization for investigation and allowance before the claims are made the subject of litigation in the courts; but a requirement of this kind does not abridge the right of members to resort to the courts when their claims have been submitted to, and finally rejected by, such officers and tribunals." "The right of resort to the courts will not be deemed to have been taken away by mere inference, and, if it can be done at all, it will only be where the restriction is stated in the clearest and most explicit terms." We are now called upon to determine whether the claimant under a benefit certificate, issued by the society in question, is compelled to exhaust all the remedies provided by it, by way of appeal from one tribunal to another, before resorting to the courts for the collection of his claim. The general laws of the order, after declaring the circumstances under which a member may become entitled to apply for the fulfillment of its contract or policy of in