The opinion of the court was delivered by
Kingman, C. J.:
This was an action against plaintiff in error for damages accruing to the defendant in error from the Bail-road Company’s not fencing the land of McCarty, in accordance with a decree of the Leavenworth district court made on the 24th of December, 1863.
The central questions in the case, and the ones decisive of the merits, are, whether the record and decree in the case decided in 1863 was admissible in evidence; and if so, what effect was to be given to the decree. That proceeding was one commenced by the plaintiffs in error to have the right of way condemned through the land of the defendant in error, and many, others, for the use of the railroad of plaintiffs in error. The proceeding was initiated and conducted under the provisions of sections eight and nine, ch. 86, (pp. 916, 917,) of the Ter. Laws of 1855. A petition was presented by the plaintiff in error to the district court alleging that McCarty and some fifty or more other named persons owned mahy tracts and lots of land, which were described, and that they refused to relin[130]*130quish the right of way. Upon that petition the court appointed certain persons to view the premises, assess the damages, etc., and report. The report was made, and among many others, assessed the damages to McCarty for the land of his proposed to be taken by the said road at $125. McCarty objected to the report on legal grounds stated. Finally a decree was rendered which was for $125 in money to be paid to McCarty, and that the Railway Co. should fence his land, on each side of the track, prior to the time when they commenced running their cars on the road. The decree recites that the case came up regularly for healing on the objections to the report of the viewers by McCarty, and by consent of parties it was rendered as above described. The plaintiff in error insists that the record and decree ought not to have been received in evidence on four different grounds, namely:
1. That the proceeding was against several persons, while the law only authorized it against each person separately.
2. The land was not sufficiently described in the petition. McCarty’s land was described as a certain quarter-section, while the land reported by the viewers was only fifty acres of that quarter-section.
3. An interested man (Yorke,) was appointed one of the viewers.
4c. That there could be no appearance of a corporation in the court but by an attorney, and that an attorney cannot bind his principal by any such consent as the decree recites. .
For these reasons it is urged that the decree is void, the court having no jurisdiction of the corporation, and no power to render such a decree.
i. issue; proof. The first three grounds above specified may be disposed of by a single remark. There was no issue made up that would authorize a consideration of them. The petition alleged the judgment; the answer was a general denial, and several clauses of the statute of limitations. So far as the statute of limitations is concerned, it disappears from the case. Now if it is conceded that the general denial was sufficient to put the existence of the judgment in question, it did not raise any question. as to the regularity of the [131]*131proceedings on which it was founded. The only question that could by any possibility be raised on that issue would be whether there was such a judgment. This reason alone disposes of these three objections. Quite as valid a one might be given that none of the three questions could be raised except on direct proceedings in error. A judgment is conclusive and final until reversed. The peace of society requires that there should be some end to litigation. It is possible that a third reason might be given, quite as satisfactory, but two surely are enough.
3. corporation; attorney. The fourth objection requires a separate examination, because it not only goes to the admission of the judgment, but also to what effect shall be given to it. It is pretended that the district court had not jurisdiction of the proceedings to condemn the land; that the attorney for the corporation had no authority to consent to a decree for any other compensation than of money; that he could not stipulate that the corporation should, as a condition to getting the right of way through McCarty’s land, build a fence along their track through his land. The record of the proceedings does not show that the corporation consented by its attorney, or that the stipulation as to the fence was made by an attorney; it recites that the decree was so rendered by the consent of the corporation itself, and of McCarty. To avoid this, the counsel for the plaintiff in error say that tne corporation could appear only by attorneys. Suppose this is conceded, and also that the attorney had no power to make a stipulation of the character represented in the decree in this case for the condemnation of the land, and it does not by any means follow that the corporation did not consent to the decree as it was made. This judgment or decree was between the same parties; and upon another proceeding every presumption is to be indulged that would support it. In this case there is not even a presumption necessary. The corporation consented to the decree. That consent was matter of evidence on the trial of the case. It must have appeared by legal and competent evidence. That evidence did not become a part of the record. If the attorney had no right to make such a stipulation, or to give such a consent, the fact must have [132]*132appeared in some other way that was legal and satisfactory. We by no means intend to decide that even if the consent was made by an attorney, it would invalidate the judgment in this case. When that question arises it will be time enough to consider it. The corporation was in court on its own motion, and on proceedings instituted by itself. By tho decree in the case it obtained all the right it has and which it is using over the land of McCarty. If the decree is illegal, the plaintiff in error is a mere trespasser.
3. judgment; conclusive; wiien entire, But it is insisted that the decree as to the fence is erroneous. That may be so. It may be that the plaintiff in error has got its right of way over McCarty’s land, and can avoid the compensation decreed for that right of way so far as x ° d that compensation consists of anything other than money; that it is not estopped by its solemn consent made of record from performing a part of a decree, and claiming the benefit of another part of the same deci’ee, a part which would probably have never been made but for the part which it attempts to repudiate. All these questions would arise on review on error. If it was then determined that the decree was erroneous the case could be sent bach; and if McCarty was entitled to more than the amount awarded him in money he could get, on a retrial, that for which the court, instead of money, gave him compensation in protecting his land. The court that rendered the judgment had jurisdiction of the parties, and the subject-matter; and until reversed the judgment is final and conclusive.
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The opinion of the court was delivered by
Kingman, C. J.:
This was an action against plaintiff in error for damages accruing to the defendant in error from the Bail-road Company’s not fencing the land of McCarty, in accordance with a decree of the Leavenworth district court made on the 24th of December, 1863.
The central questions in the case, and the ones decisive of the merits, are, whether the record and decree in the case decided in 1863 was admissible in evidence; and if so, what effect was to be given to the decree. That proceeding was one commenced by the plaintiffs in error to have the right of way condemned through the land of the defendant in error, and many, others, for the use of the railroad of plaintiffs in error. The proceeding was initiated and conducted under the provisions of sections eight and nine, ch. 86, (pp. 916, 917,) of the Ter. Laws of 1855. A petition was presented by the plaintiff in error to the district court alleging that McCarty and some fifty or more other named persons owned mahy tracts and lots of land, which were described, and that they refused to relin[130]*130quish the right of way. Upon that petition the court appointed certain persons to view the premises, assess the damages, etc., and report. The report was made, and among many others, assessed the damages to McCarty for the land of his proposed to be taken by the said road at $125. McCarty objected to the report on legal grounds stated. Finally a decree was rendered which was for $125 in money to be paid to McCarty, and that the Railway Co. should fence his land, on each side of the track, prior to the time when they commenced running their cars on the road. The decree recites that the case came up regularly for healing on the objections to the report of the viewers by McCarty, and by consent of parties it was rendered as above described. The plaintiff in error insists that the record and decree ought not to have been received in evidence on four different grounds, namely:
1. That the proceeding was against several persons, while the law only authorized it against each person separately.
2. The land was not sufficiently described in the petition. McCarty’s land was described as a certain quarter-section, while the land reported by the viewers was only fifty acres of that quarter-section.
3. An interested man (Yorke,) was appointed one of the viewers.
4c. That there could be no appearance of a corporation in the court but by an attorney, and that an attorney cannot bind his principal by any such consent as the decree recites. .
For these reasons it is urged that the decree is void, the court having no jurisdiction of the corporation, and no power to render such a decree.
i. issue; proof. The first three grounds above specified may be disposed of by a single remark. There was no issue made up that would authorize a consideration of them. The petition alleged the judgment; the answer was a general denial, and several clauses of the statute of limitations. So far as the statute of limitations is concerned, it disappears from the case. Now if it is conceded that the general denial was sufficient to put the existence of the judgment in question, it did not raise any question. as to the regularity of the [131]*131proceedings on which it was founded. The only question that could by any possibility be raised on that issue would be whether there was such a judgment. This reason alone disposes of these three objections. Quite as valid a one might be given that none of the three questions could be raised except on direct proceedings in error. A judgment is conclusive and final until reversed. The peace of society requires that there should be some end to litigation. It is possible that a third reason might be given, quite as satisfactory, but two surely are enough.
3. corporation; attorney. The fourth objection requires a separate examination, because it not only goes to the admission of the judgment, but also to what effect shall be given to it. It is pretended that the district court had not jurisdiction of the proceedings to condemn the land; that the attorney for the corporation had no authority to consent to a decree for any other compensation than of money; that he could not stipulate that the corporation should, as a condition to getting the right of way through McCarty’s land, build a fence along their track through his land. The record of the proceedings does not show that the corporation consented by its attorney, or that the stipulation as to the fence was made by an attorney; it recites that the decree was so rendered by the consent of the corporation itself, and of McCarty. To avoid this, the counsel for the plaintiff in error say that tne corporation could appear only by attorneys. Suppose this is conceded, and also that the attorney had no power to make a stipulation of the character represented in the decree in this case for the condemnation of the land, and it does not by any means follow that the corporation did not consent to the decree as it was made. This judgment or decree was between the same parties; and upon another proceeding every presumption is to be indulged that would support it. In this case there is not even a presumption necessary. The corporation consented to the decree. That consent was matter of evidence on the trial of the case. It must have appeared by legal and competent evidence. That evidence did not become a part of the record. If the attorney had no right to make such a stipulation, or to give such a consent, the fact must have [132]*132appeared in some other way that was legal and satisfactory. We by no means intend to decide that even if the consent was made by an attorney, it would invalidate the judgment in this case. When that question arises it will be time enough to consider it. The corporation was in court on its own motion, and on proceedings instituted by itself. By tho decree in the case it obtained all the right it has and which it is using over the land of McCarty. If the decree is illegal, the plaintiff in error is a mere trespasser.
3. judgment; conclusive; wiien entire, But it is insisted that the decree as to the fence is erroneous. That may be so. It may be that the plaintiff in error has got its right of way over McCarty’s land, and can avoid the compensation decreed for that right of way so far as x ° d that compensation consists of anything other than money; that it is not estopped by its solemn consent made of record from performing a part of a decree, and claiming the benefit of another part of the same deci’ee, a part which would probably have never been made but for the part which it attempts to repudiate. All these questions would arise on review on error. If it was then determined that the decree was erroneous the case could be sent bach; and if McCarty was entitled to more than the amount awarded him in money he could get, on a retrial, that for which the court, instead of money, gave him compensation in protecting his land. The court that rendered the judgment had jurisdiction of the parties, and the subject-matter; and until reversed the judgment is final and conclusive. The judgment is not evidence of a contract; it is the recorded decision of a court having jurisdiction, in the course of regular proceedings, under a law which authorized the court “ to make such orders, and take such other steps as will promote the ends of justice between the owners of such lands, and said company.” If the court erred in the manner of settling the question of damages and giving relief, (which is not admitted,) it is an error that cannot be examined under the issues presented in this case.
Having thus disposed of the main point in the case we [133]*133proceed to notice those that are alleged to have occurred on the trial. It is suggested that the petition does not make an exhibit of the record of the judgment sued on, as required by the code, and that there is no allegation that the judgment was “ duly given or made.” The attention of the court below was not called to these matters, and they cannot be successfully raised here for the first time.
The plaintiff in error asked a series of instructions most of which were based upon the supposed invalidity of the decree of December, 1863, which the court correctly refused to give. The court then substantially charged on the same points, that if the defendant in error had proved that he had sustained damages at the hands of the road, and that such loss had occurred by reason of the neglect of the Eailroad Company to build the fence along both sides of its track as far as it run through the plaintiff’s land, then for such loss to the extent to which it was proved he was entitled to recover, but in no event could he recover for any loss an amount greater than he had alleged in his petition. This we think was correct ruling. If the loss was the direct result of the neglect of the plaintiff in error, it is but right and law that he who did the wrong should make it good.
The judgment is affirmed.
Yalentine, J., concurring.
Brewer, J., not sitting.