McClure v. Mo. River, Fort Scott & Gulf Railroad

9 Kan. 373

• Court: Supreme Court of Kansas
• Decided: January 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

1. Bills of exception may be settled without notice party. 2. Where original bill is erroneous it cannot be sent Back for correction. The defendant in error, the Railroad 'Company, makes a motion in this court that the transcript of the record be referred back to the judge of the district «court before whom the action was tried, in order that' said judge may review the bill of exceptions therein contained, and amend the same according to the facts. The bill of exceptions is perfectly regular upon its face. It was properly reduced to writing, signed, and allowed by the judge, and ordered to be made a part of. the record, and all within the proper time/ and all in due form. But two*objections arc urged to said bill of exceptions: First, it was signed and allowed by the judge in the absence of, and without-any notice to, the defendant, or to its attorneys. Second, it is not ;a true bill of exceptions. The first objection is not tenable. A judge of a court may sign and allow a bill of exceptions ^01’ onc Pai’ty in the absence of and without any uotice to the other party, or the other party’s counsel, though it must be admitted such a thing ishould seldom be done. The judge in such cases should exeiv •cise a very careful and prudent discretion. If, in a case of -emergency, it becomes necessary for a judge to sign and allow ¡a bill of exceptions without the other party having an opportunity of seeing it, he should read it very carefully, and know that it contains nothing but the truth. Neither is the' second objection sufficient. But before proceeding further we-would state that the motion of the defendant is founded upon two affidavits—one being the affidavit of the judge of the court before whom the action was tried, and the other being the affidavit of one of the counsel who assisted in trying the cause in the court below. Each affiant states upon oath .that the bill of exceptions was signed and allowed in the absence of and without notice (so far as each knows,) to the defendant, or defendant’s counsel; that the bill purports to contain all the evidence, when in fact it does not contain all the evidence; that it répresents that certain matters were introduced in evidence which in fact were not introduced in evidence ; and that it represents the evidence concerning certain matters' to have been a certain way, when in truth and in fact the evidence was directly the reverse of what it represents it tn have been. These things are stated in full, and in detail, in the affidavits. We have only attempted to state the substance of the affidavits. It would seem that there ought to-be a remedy for such a case as this. And we think there is ; but it is not the remedy the defendant wants. It is admitted-by counsel for defendant that the time has passed in which-the court below could, unless assisted by the supreme court,. allow a new bill of exceptions, or amend the one already allowed. But it is claimed that' this e0urt could by an order enable the court below to so amend the bill of exceptions as to make it correspond with the facts, as they transpired at the trial. We know of no law authorizing the supreme court to make any such order. It is true, that we can send back a transcript with the order that it be so amended as to correspond with the original record. It is true, that we can order that the transcript of the bill of exceptions be so amended as to correspond with the original bill of exceptions. But we have no -power, so-far as we are now advised, to order that the original bill of exceptions shall be so amended as to correspond with the facts of the case. This is entirely unlike the case where a bill of ■exceptions is presented to the court within the proper time, • and the court refuses to allow it, or to act upon it. In that .case the laAV gives a remedy Avhich may be enforced in .this court. (Article 33 of the code.) As soon as the judge refuses ■■ to act upon the bill of exceptions an action accrues against: him—an action of mandamus; and the mere adjournment of • court in such a case cannot defeat or bar the action. The notion continues until the judge performs his duty, or until the -statute of limitations bars it. But no action accrues against a judge Avhen he acts upon a bill of exceptions, and ■ •acts judicially, although he may act erroneously. Where a party obtains a bill of exceptions through fraud, the other party Avould undoubtedly haAre a remedy by an original action in the district court (but not in this court) if he Avere likely to suffer injury from the fraud. And, generally, AArhere a bill of exceptions is so erroneous or untrue as to require a reversal of the judgment, the party aggrieArcd has a neAV trial in the court beloAV, AAdiich ordinarily Avould be a sufficient remedju And here Ave Avould Avish to say that we confine this decision to cases Avherc a neAV trial may be granted, Avithout expressing any opinion concerning a case Avhere a neAV trial could not be granted. The motion is overruled.

3. Voluntary voadcompavai!twhen 4. Donations to over a particular route not void. II. It is claimed that the court erred in OArerruling the plaintiff’s demurrer to the defendant’s ansAver. The answer ¡states among other things that the defendant contemplated building its road on one of two different routes—the Tar Creek route, and the Baxter Springs route; that it would cost about. ¡$100,000 more to build, and about $20,000 more, annually, to operate, the Baxter Springs route than it Avould the Tar Creek route; that in consideration thereof the plaintiff •entered into a contract with the defendant (many other persons making similar contracts Avith the defendant,) to conArey the land in controversy to the defendant, if the defendant would build its road on the Baxter Springs route and locate its depot- in Baxter Springs; that the defendant had'performed'1 all its part of the contract; and then- the answer prays that the plaintiff maybe compelled tó spe-' citically perform his part of ’ the ' contract by conveying said land to the defendant. Upon this answer tlic following questions are raised: First: Can a railway company' receive, or purchase, and hold real estate for the purpose of aiding it “in the construction, maintenance and accommodation of its railway?” Wc think it can. (Gen. Stat., 202, § 4, subdiv. 2.) Of course, railway companies cannot become the owners of lands for mere purposes of speculation. Of course they cannot own lands for the purpose of operating farms on them, or own houses and lots for the purpose of renting them; nor can they engage in any kind of business not connected with legitimate railroad business. But they may receive lands by voluntary grant, or purchase, and then sell them “for the purpose of aiding in the construction, maintenance, and accommodation of their railways.” The statute above referred to provides that every railway corporation, in addition to its other powers shall have power “To take and hold such voluntary grants of real estate, and other property, as shall be made to it to aid in the construction, maintenance and accommodation of its railway; but the real estate received by voluntary grant, shall be held and used for the purpose of such grant only; and to purchase and hold, with power to convey, real estate for the purpose of aiding in the construction, maintenance, and accommodation of its railway.” Secondly: Does it appear from this answer that the object of the railway company in making said contract was to obtain the land for the purpose of aiding it in the construction, maintenance or accommodation of its railway ? We think it does, though it is not so expressly stated. It would have been better if the answer had so stated the same M express terms. Third: Was this contract in contravention oi public policy, ancl void, because . . # , it. wag made m consideration that the railway ■company would build its road by Avay of Baxter Springs instead of by way of Tar Creek at such a vastly increased expense? We think not. There is no kind of public policy that requires that .railroads shall be built on the route that costs the least. . The public interests often require that a railroad shall be built on the route that costs the most. The cost of constructing or maintaining a road is only one of the many elements that must be taken into consideration in determining on what route a road shall be built. The prospective business of a road proposed to be built upon any particular route has vastly more to do with the question of where it shall be located, than the cost of its construction or operation. It is not claimed in this case that the interests of the public were not best subserved by constructing the road by way of Baxter Springs instead of by any other route. The running of the road by way of Baxter Springs was not a deviation of the road from any route mentioned in the charter, nor was it even a deviation from any route between two points mentioned in the charter. It is said “that the objective point of the road was and is Preston, in the state of Texas.” The running of the road to Baxter Springs was simply a choice of routes-to-Preston, Texas. But as Preston is beyond the boundaries of Kansas, and as no railroad company can be chartered in Kansas with power to build a railroad beyond its boundaries,, the location of Preston, or the choice of routes to it, can have no bearing in this case. The question, then, was simply this: whether the railroad company would build a road to Baxter Springs or to Tar Creek; simply, -whether they would build one road or some other road, or perhaps more properly-speaking, whether they would build a road to Baxter Springs, or not, With this view of the case, the decision of the first question raised on the demurrer to the answer, and one which we have already considered, decides this question. And this, we think, is all there is of the question. Hence our answer, that a railway company can become the owner of real estate, and hold it for the purpose of aiding it in the construction, maintenance, or accommodation of its railway, is an answer to this question. For the exercise of this power the railway company has a positive statute in its favor, and we need not look any further for authority. The decisions of other states, whether they agree with these views or not, have no application to this case, unless such states have statutes like ours.

5.Evidence; competent; exclude. III. There are many questions raised upon the introduction of the evidence, or rather upon the exclusion of eyidence. From the bill of exceptions it would seem that much of the evidence of the plaintiff that was excluded should have been admitted. The following evidence that was excluded seems to have been competent, and should have been admitted, to wit: Evidence, tending to show the circumstances under which the bond from the plaintiff to the defendant was signed; whether at the time it was signed it formed a part of a completed contract, or whether it only served as the basis of a proposition to the railroad company; whether the bond was ever delivered by the plaintiff to the railroad company, or not; whether, if the bond served only as the' basis of a proposition, the proposition was ever accepted, or not, by the railroad company, or whether it was rejected by the railroad company; and the length of time, if any, that was given to the railroad company in which to determine whether it would accept or reject the proposition, etc. And the'objection to the introduction of Mr. Joy’s letter in evidence, to wit, “that it had not been received in the ordinary way,” was entirely insufficient. If the letter was an answer to the proposition of the jdaintiff and others, as it seems from the bill of exceptions to be, and if it was promulgated as such by a duly authorized agent of the railroad company, it made no difference how it was received, whether by mail or otherwise. For the errors of the court, in excluding said evidence, the judgment below must be reversed. Rut as the bill of exceptions is probably not true in many of its statements we shall not comment upon the evidence in detail, for by so doing Ave would probably be commenting upon a very different case from the one that was actually tried in the court below. Judgment reversed and cause remanded for a new trial.

All the Justices concur, except as to the second point decided; and concerning that point Kingman, C. J., concurs with Valentine, J., and Brewer, J., dissents.