be presumed that the motion was not filed in time. Errors occurring during the trial must be brought to the attention of the trial court by a motion for a new trial before they can be considered here, and where a motion for a new trial is not preserved in the record, nor the grounds therefor therein stated, this court cannot hold that the district erred in overruling the motion. Typer v. Sooy, 19 Kan. 593; Douglass v. Insley, 34 Kan. 604, 9 Pac. 475; Deford v. Orvis, 52 Kan, 432, 34 Pac. 1044; Gossett v. Railroad Co. (Kan. Sup.) 56 Pac. 78.

None of the errors assigned being available for review, the judgment of the district court will be affirmed.

PER CURIAM. This was an action by defendant in error against plaintiff in error to recover damages for personal injuries inflicted by the plaintiff in error upon him by the use of a knife while the parties were engaged in a personal conflict. The jury awarded defendant in error $250 as his damages, and the case is here upon several alleged errors.

The court permitted this question to be asked of the plaintiff: "What means of supporting your family have you?" The answer was: "By the sweat of my brow. I mean, by hard work." It was sought thereby to show that plaintiff was a laborer. While a more pertinent question might have been asked, we see no prejudicial error in the form of the question or answer.

The court refused to permit an inquiry to be made of the plaintiff upon cross-examination as to the size of a man whom he said was assisting the defendant in the assault. We do not think the question very material, but it appears that subsequently the age and size of this man were testified to by another witness.

Complaint is made that the court erred in instructing the jury, and a portion of one instruction is quoted and complained of. From the entire instruction from which the part Is taken, as well as from other instructions,

we conclude that there was no error com Imitted in this.

It is also urged that the verdict is not sustained by sufficient evidence, and is contrary to the law and evidence, and this especially as to the amount of the damages awarded; and in this connection it is urged that the court misdirected the jury as to the measure of damages, because plaintiff had not by his evidence fixed the necessary data from which to compute the amount of such damages. In cases of this sort, the questions both of actual and punitive damages must be left very largely to the jury. It does appear that the defendant in error was quite seriously injured by several stabs with the knife in his side, some of which penetrated to the lung cavity; that he was detained several days from his work, and suffered some pain. The amount of the verdict is not such as indicates to our minds anything but a fair desire on the part of the jury to award defendant in error his reasonable damages. And the evidence is of such a character as that the court might properly leave the question of punitive damages to the jury.

On a careful review of the entire case, we think there is no ground for reversal. The case will be affirmed.

ATCHISON, T. & S. F. RY. CO. v. IRETON. (Supreme Court of Kansas, Division No. 1. Dec. 7, 1901.)

RAILROADS-FIRES.

Whether there was negligence on the part of the landowner in permitting high grass and weeds to grow on the land adjacent to the right of way is a question for the jury in an action for damages by fire.

Error from district court, Cowley county; W. T. McBride, Judge.

Action by Bridget Ireton against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Argued before DOSTER, C. J., and JOHNSTON, SMITH, and ELLIS, JJ.

A. A. Hurd and O. J. Wood, for plaintiff in error. Hackney & Lafferty, for defendant in

error.

PER CURIAM. There was testimony showing that the fire was started immediately after the passing of one of the plaintiff in error's trains at the railroad. Whether there was negligence upon the part of the land owner in permitting high grass and weeds to grow upon her land adjacent to the right of way was a question of fact for the jury. Railway Co. v. Richardson, 47 Kan. 517, 28 Pac. 183; Railway Co. v. Tubbs, 47 Kan. 630, 28 Pac. 612; Kellogg v. Railway Co., 26 Wis. 223, 7 Am. Rep. 69; Railroad Co. v. Hendrickson, 80 Pa. 182, 21 Am. Rep. 97.

See, also, Buck v. Railway Co., 59 Kan. 328, 52 Pac. 866.

The judgment of the court below will be affirmed.

(63 Kan. 686)

HARGIS et al. v. ROBINSON et al. (Supreme Court of Kansas, Division No. 1. Dec. 7, 1901.)

SUBROGATION-NEGLIGENCE.

1. Equity does not encourage or reward negligence, and subrogation, which is founded on principles of equity and benevolence, is never enforced in favor of one who has been negligent in asserting an equity and to the prejudice of innocent parties who have acquired intervening rights.

2. Parties purchased real estate subject to a mortgage and to a judgment lien, and afterwards paid off and procured a cancellation of the mortgage. Some time later the land was sold to a third person at an execution sale to satisfy the judgment lien, when the original parties who paid off the mortgage, and who, with knowledge or the means of knowledge of the judgment lien, had never asserted any rights under the canceled mortgage, or claim that it had been kept alive for their protection, asked to be subrogated to the rights of the mortgagee. Held, that they were not entitled to subrogation as against the purchaser at the execution sale.

(Syllabus by the Court.)

Error from district court, Cowley county; W. T. McBride, Judge.

Action by W. C. Robinson and S. H. Myton against Gladys M. Hargis and others. Judgment for plaintiffs, and defendants bring error. Reversed.

Argued before DOSTER, C. J., and JOHNSTON, SMITH, and ELLIS, JJ.

H. C. Hargis and James McDermott, for plaintiffs in error. Geo. H. Buckman, for defendants in error.

JOHNSTON, J. This was an action by the executors and legatees of the estates of M. L. Robinson, deceased, and of M. L. Read, deceased, to quiet title to a tract of land in Cowley county as against Gladys M. Hargis, H. C. Hargis, and James McDermott, or to be subrogated to the rights and interests of the Mutual Benefit Life Insurance Company, the original holder of an $800 mortgage against the land. On January 1, 1884, Sabrina Merydith was the owner of the land, and with her husband executed a mortgage thereon to the insurance company for $800, payable five years after date. On February 2, 1887, the land was conveyed by the Merydiths to M. L. Robinson and M. L. Read. Robinson died in 1887 and Read died in 1891. Before the death of Read, and in 1889, George W. Robinson, acting as the agent of the executors and legatees of M. L. Robinson, deceased, and of M. L. Read, paid off the $800 mortgage of the insurance company, and obtained a cancellation of the same, and a discharge of the mortgage lien. Before that time, and in 1886, O. M. Stewart obtained a judgment for $720 against the Merydiths,

who were then the owners of the land, and also against F. H. Servis and Peter Thomp son, who were sureties for the debt for which judgment was rendered. Afterwards, Servis, the surety, paid to Stewart the amount of the judgment, and obtained an assignment of the same to his attorney, James McDermott. M. L. Robinson, who was then living, acted as the agent of Stewart in receiving payment from Servis and in delivering to him the assignment of the judgment. When George L. Robinson paid off the mortgage of the insurance company, he had no actual knowledge of the Stewart judgment. It was kept alive by the issuance of executions from time to time; and upon one issued in 1893 at the instance of H. C. Hargis, who was acting as attorney for James McDermott, the assignee of the judgment, the land was sold to Gladys M. Hargis for $1,200. The judgment, with interest, then amounted to more than the purchase price of the land, and only the costs of the execution sale, to wit, $56.40, was paid into court. The sale was confirmed by the court, and a deed issued to the purchaser in November, 1893, and she has been in possession of the land since that time. Upon the facts of the case the court held that the plaintiffs were not entitled to have their title quieted as against Gladys M. Hargis, but also held that they were entitled to be subrogated to the rights of the mortgagee under the mortgage made by the Merydiths to the insurance company. The defendants in the court below contended that the right of subrogation did not exist, and bring the case here for review.

Under the findings of the court Gladys M. Hargis acquired a good title to the land in controversy through the execution sale and the sheriff's deed, and the only question remaining is whether the plaintiffs below were entitled to be subrogated to the rights of the mortgagee. The Stewart judgment was a valid lien upon the Merydith land when Robinson and Read purchased it, and also when the mortgage debt was paid. It cannot be said that the purchasers were without knowledge of the judgment, as the uncontradicted testimony is that M. L. Robinson not only had personal knowledge of its existence, but that he also knew of the assignment of the same to McDermott. Besides, the judgment was a matter of record, and all subsequent purchasers are deemed to have notice of it, and to have taken the land subject to the lien of the judgment. If it were granted that the actual knowledge of Robinson was chargeable to his heirs, successors, and as| sociates, the fact remains that, if the other parties to the transaction of purchasing the land and paying the mortgage debt of the insurance company had examined the records, they would have learned of the existence of a valid judgment lien, and they couid have retained out of the purchase of the land a sum sufficient to have paid off the judgment lien. There was no direct assump

Or

tion of liens by Robinson and Read, but they are deemed to have taken it subject to valid liens that are of record, and they cannot plead ignorance of liens which an examination of the records would have revealed. dinary care required an examination of the records; and where persons neglect to avail themselves of the appointed means of information they are not in a good position to appeal for equitable relief, as equity does not encourage or reward negligence. If we should ignore the actual notice which was had of the judgment, and should assume that the payment and cancellation of the mortgage was to prevent a sale of the land, and protect the title which the parties acquired from Merydiths, we would still be unable to apply the doctrine of subrogation. It is a doctrine which is founded in pure equity and benevolence, only to be applied where it will promote justice, and is never enforced at the expense of innocent parties who have acquired intervening rights. When Gladys M. Hargis purchased the land at the execution sale, the records showed that the mortgage had been paid and canceled, and the lien of the same discharged. She appears to have been a bona fide purchaser, and, while the sum of money paid by her was not large, there was so much of an investment and such a change of position that it would have been inequitable to enforce subrogation in favor of parties so negligent in the protection of their own rights. This court has made a liberal application of the doctrine of subrogation, but it has never enforced it as against those holding intervening rights and liens, nor where it would prejudicially affect the rights of innocent parties. Richards v. Griffith, 92 Cal. 493, 28 Pac. 484, 27 Am. St. Rep. 156; Persons v. Shaeffer, 65 Cal. 79, 3 Pac. 94; Gerdine v. Menage, 41 Minn. 417, 43 N. W. 91; Ahern v. Freeman, 46 Minn. 156, 48 N. W. 677, 24 Am. St. Rep. 206; Bunn v. Lindsay, 95 Mo. 250, 7 S. W. 473, 6 Am. St. Rep. 48.

We think the court ruled incorrectly in holding that the defendants in error were entitled to be subrogated to the rights of the Mutual Benefit Insurance Company, and therefore the judgment will be reversed, and the cause remanded, with instructions to enter judgment in favor of the plaintiffs in error. All the justices concurring.

(63 Kan. 704)

resume the possession of it if for any reason the defendant's conduct is unsatisfactory, and may maintain an action of replevin to recover the machine if a demand for possession is refused.

(Syllabus by the Court.)

Error from district court, Franklin county; S. A. Riggs, Judge.

Action by the Hydraulic Press Manufactur-· ing Company against J. H. Whetstone. Judgment for defendant, and plaintiff brings error. Reversed.

Argued before DOSTER, C. J., and JOHNSTON, SMITH, and ELLIS, JJ.

W. S. Jenks, for plaintiff in error. Benson & Harris, for defendant in error.

JOHNSTON, J. This was an action of replevin, brought to recover the possession of a cider press, of which a conditional sale had been made by the Hydraulic Press Manufacturing Company to J. H. Whetstone in July, 1895. Among other things, the contract provided that the cider press should remain the property of the company, and subject to its order, until payment in full was made, and that the company was entitled to receive one-half of the earnings of the machine until it was paid for in full. The answer of Whetstone admitted the execution of the contract, and the evidence of the plaintiff tended to show that, although more than three years had elapsed since the sale, only a small part of the purchase price had been paid when this action was begun. His letters and statements, of which testimony was given in behalf of the plaintiff, showed that he was in default; that only about $150 of the debt had been paid; and that the machine is so much worn that there is little hope that payment can ever be made from its earnings. The trial court overruled plaintiff's demurrer to the answer of the defendant, which admitted that the plaintiff held the title to the press, and that the defendant held the pos session of the same subject to the plaintiff's order. The court also sustained a demurrer to the plaintiff's evidence, which, without question, made a prima facie case in favor of the plaintiff. In these rulings there was error. The contract expressly provides that the ownership of the machine was to remain in the seller until fully paid for, and, while possession was to be given to the buyer, it was plainly stipulated that until payment was made, and title acquired by the buyer, possession was to be held subject to the sell

STONE.

(Supreme Court of Kansas, Division No. 1. Dec. 7, 1901.)

CONDITIONAL SALE-DEFAULT. Where a machine is sold upon the condition that title shall remain in the seller until full payment is made, and possession is to be held by the buyer subject to the seller's order, and also that the seller shall be entitled to receive one-half of the earnings of the machine until it is fully paid for, the seller has an option to

the company, and all rights and control incident to title, except as expressly restricted by the contract itself, and, as we have seen, the only restriction as to possession was that it was to be held by the buyer at the option of the seller.

It is urged that the provision of the contract to the effect that the company should receive one-half of the earnings of the machine implies a right in the defendant to

retain and use it, and that such right is inconsistent with the claim that possession is to be held subject to the will and order of the company. That provision, however, does not, either in its terms or implications, negative the specific agreement of the parties that, while the title remained in the company, possession should be held by Whetstone subject to its order. Instead of providing that possession might be resumed if payment were not promptly made, or when the seller deemed itself insecure, as is frequently stipulated in such contracts, the parties here practically agreed that possession might be retained at the option of the company until full payment of the debt was made. The contract was conditional. It gave an option to the plaintiff, and, having the option by express terms, it was entitled to retake the possession, if, for any reason, the defendant's conduct was unsatisfactory. But, if the contract admitted of the interpretation that possession could not be retaken unless the defendant was in default, we would have no hesitation in saying that the plaintiff established the prima facie right of action by the proof to which the demurrer was sustained. Under the facts pleaded and proved, the plaintiff had a right to the possession of the machine, but how much should be credited on the debt due to the plaintiff by reason of the return of the machine cannot be determined at this time.

The judgment will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. All the justices concurring.

(63 Kan. 758)

J. V. BRINKMAN CO. BANK v. GUSTIN et al.

(Supreme Court of Kansas, Division No. 2. Dec. 7, 1901.)

ATTACHMENT-DISSOLUTION-RES JUDICATA.

An order made by a judge at chambers discharging an attachment levied by one assuming to act as an officer, but not qualified to make such levy, which order is made after the plaintiff has filed a release of the attachment, and is made in the absence of counsel for plaintiff, and without contest, is not an adjudication against the right of the plaintiff to cause the property to be seized under a subsequent order of attachment based upon the original affidavit in attachment filed at the commencement of the action.

(Syllabus by the Court.)

Error from district court, Barton county; Ansel R. Clark, Judge.

Action by the J. V. Brinkman Company Bank against J. J. Gustin and others. From judgment on motion to dissolve the attachment, plaintiff brings error. Reversed.

Argued before CUNNINGHAM, GREENE, and POLLOCK, JJ.

Wm. Osmond and Elric C. Cole, for plaintiff in error. J. W. Clark, for defendants in

error.

POLLOCK, J. controversy are:

The facts involved in this
On the 4th day of October,

1899, plaintiff in error brought its action against defendants in error Gustin and wife upon a promissory note of $1,500; procured a writ of attachment to issue, and a levy thereof, to be made upon personal property, as the property of defendant in error Gustin. The writ was levied by one Zutavern, who had no authority to execute its commands. By virtue of the levy of this writ there came into the hands of Zutavern a large amount of personal property. On the 14th day of October, upon the return of the writ, defendant Gustin filed his motion to discharge the attachment; and on the same day defendant in error Clark, claiming to be the owner of a portion of the property seized, filed his motion for an order discharging the property by him claimed from the levy of the writ. Each of said motions, among other grounds, alleged Zutavern, who levied the writ, to be without lawful authority to so do, which motions were supported by affidavits,-among others, the affidavit of the county clerk showing the want of authority in Zutavern to execute the writ. These motions were noticed for hearing before the judge of the district court at chambers on the 23d day of October. On the 21st day of October the plaintiff filed in the office of the clerk of the district court the following release: "Comes now the plaintiff, and releases the property attached in the aboveentitled action, under the order of attachment dated October 4, 1899, from the levy under said order made." On the same day plaintiff filed a new bond in attachment, and caused another writ of attachment to issue, and levy to be made upon a portion of the property theretofore seized under the writ of October 4th. On October 23d defendants in error, by their counsel, appeared before the judge of the district court, at chambers, and procured an order discharging the property from levy under the writ of October 4th. This order recites the failure of the plaintiff to appear and present any proofs in support of the attachment; the release of the property by the plaintiff from attachment; ordered the attachment dissolved, and the property discharged from the levy thereof; and, further, ordered the property to be returned to the defendants in error, "unless now held by a subsequent order of attachment." On November 1st defendants in error filed motions to discharge the property from the levy of the writ of attachment issued October 21st,-among other grounds, alleging the order of the judge, at chambers, of October 23d, sustaining the motions filed to dissolve the attachment and discharge the property from the levy of the writ of attachment of October 4th as final and conclusive between the parties, and an adjudication against the right of the plaintiff to seize and hold the property under the attachment upon any ground specified in the affidavit in at

tachment filed at the commencement of the action. These motions were heard by the court in open court, and the plea of former adjudication was overruled as to Gustin and sustained as to Clark. Plaintiff brings error.

The sole question presented for determination is, was the order of the district judge, at chambers, discharging the property claimed by Clark from the levy of the writ of attachment issued October 4th, conclusive, and a final adjudication against the right of plaintiff to seize and hold the property under the writ of attachment issued October 21st, based upon the original affidavit in attachment? We are of the opinion that this question must be answered in the negative.

Many sound reasons for this ruling might be given under the facts in the case at bar. As a general rule,-subject, however, to exceptions,-the doctrine of res adjudicata is not applicable to orders made on motion. Stapleton v. Orr, 43 Kan. 170, 23 Pac. 109; Bank v. Barkalow, 53 Kan. 68, 35 Pac. 796; Blair v. Anderson, 58 Kan. 97, 48 Pac. 562, 62 Am. St. Rep. 606; Bank of Sante Fé v. Haskell Co. Bank, 59 Kan. 354, 53 Pac. 132. This rule should apply with special force in cases where the order relied upon as an adjudication is made by a judge at chambers upon an ex parte hearing, as in the case at bar. Again, it has been many times determined by this court that the rule to be applied in the determination of the question as to whether a decision made upon motion shall or shall not be held an adjudication of the question passed upon depends more upon the substance and condition of the decision than upon the form of the proceeding. Hoge v. Norton, 22 Kan. 375; Wilson Co. Com'rs v. McIntosh, 30 Kan. 238, 1 Pac. 572; Axman v. Dueker, 45 Kan. 179, 25 Pac. 582. Applying this rule to the present case, it will be seen that the decision upon the motions leveled at the seizure of the property under the writ of October 4th was not only ex parte and without contest before the judge at chambers, but also was made after the release of the property by plaintiff from the levy made under that writ, and as a consequence of such release the judge was called upon to determine no ground of the motions presented. It was only necessary to give effect to the release filed. Also, it will be seen, defendants in error may have had, and in this case undoubtedly did have, ample reason for quashing the levy of the writ of October 4th, in that Zutavern had no lawful authority to levy the writ, which would not apply to the levy made under the writ of October 21st. It is further apparent that the judge, in vacating the levy made under the writ of October 4th, and directing the return of the property to defendants in error, expressly made the order of return conditioned upon the property not being held under a levy made upon a subsequent writ of attachment.

It follows, the order discharging the prop

(Supreme Court of Kansas, Division No. 2. Dec. 7, 1901.)

EQUITABLE ACTIONS-RIGHT TO JURY TRIALVERDICT.

While in cases purely equitable in character a jury trial is not demandable of right, and the better practice is not to award a jury, yet the court may, in its discretion, upon demand, or upon its own motion, call a jury to pass upon any or all disputed questions of fact. The findings of the jury in such a case are advisory only, and may be set aside or adopted, in whole or in part, by the court, as the evidence may warrant, and error will not lie unless for abuse of discretion. (Syllabus by the Court.)

Error from district court, Reno county; M.. P. Simpson, Judge.

Action by George Turbush against John W. Wood. Judgment for plaintiff. Defendant brings error. Affirmed. Argued before CUNNINGHAM, GREENE, and POLLOCK, JJ.

H. Whiteside, for plaintiff in error. Vandeveer & Martin, for defendant in error.

POLLOCK, J. Defendant in error, as plaintiff below, commenced this action to recover from defendant the sum of $500, alleged to be due by the terms of a written contract, copy of which is attached to the petition. Defendant answered this petition, setting up various matters of account growing out of transactions between himself and plaintiff, out of which the written contract arose, and demanded a reformation of the contract, an accounting, and judgment against plaintiff. Plaintiff replied at length, alleging the contract to be so vague, uncertain, misleading, and mistaken in terms that the same should be set aside and canceled, and demanded in the alternative that the contract be set aside and canceled, and a general accounting had between the parties, or, if this relief was not granted, for judgment as prayed in the petition. Upon the trial the plaintiff demanded and was awarded a jury trial. Plaintiff had verdict and judgment thereon. Defendant brings error.

The principal ground of error relied upon by counsel for plaintiff in error to work a reversal of the judgment is that, as the issues raised by the answer and reply filed thereto are issues of equitable cognizance, the trial court committed error in awarding the plaintiff upon demand a jury trial, and in not dismissing the action upon plaintiff making demand for a jury. With this contention we do not agree. In cases of equitable cogniance a jury trial is not a matter of right, and the better practice is not to award a