Where a judgment against several parties is brought into the court of appeals for review, and it is apparent that a reversal thereof will prejudicially affect other parties not made parties to the proceedings for review, the court cannot entertain the case, and it will be dismissed. Bain v. Insurance Co., 40 Pac. 817, 3 Kan. App. 346.

(Syllabus by the Court.)

Error from district court, Stafford county; J. H. Bailey, Judge.

Action by George H. Burr and A. M. Gloyd against D. C. Breneman and others. Judgment for plaintiffs, and defendant Breneman brings error. Dismissed.

O. C. Jennings, Hardy Sayre, and Lucius M. Fall, for plaintiff in error. J. W. Rose, for defendants in error.

JOHNSON, P. J. This suit was commenced in the district court of Stafford county on the 31st day of December, 1890, by George S. Burr and A. M. Gloyd against C. S. Mace, Edward Weilep, and Madeline Weilep, to recover judgment on two certain promissory notes, and to foreclose a mortgage on real estate situated in Stafford county, Kan., executed by Edward Weilep to secure two notes given by C. S. Mace and Edward Weilep. The defendants were duly served with summons, and appeared to said action, and filed their demurrers to the first count in the petition and their answers to the second count. On the 12th day of February, 1891, plaintiffs confessed the demurrers to the first count of the petition, and asked leave to amend their petition generally, and to make additional parties defendants. Leave was granted plaintiffs to make additional par ties defendants, and file their petition in 30 days.

D.

On the 14th day of March, 1891, plaintiffs filed an amended petition, and made the following persons defendants therein: C. S. Mace, Jennie L. Mace, Edward Weilep, Madeline Weilep, John Beethan, Abner Pyle, Thomas B. Brown, Margaret Wendel, and D. C. Breneman, and additional parties were duly served with summons and by publication notice in a newspaper. Edward Weilep filed his separate answer to the amended petition. C. Breneman appeared, and filed his separate answer and cross petition to the amended petition, and denied all the allegations of the amended petition, so far as it charges any indebtedness against Mace and Weilep, and set up a lien on the mortgaged premises by way of a judgment against C. S. Mace and Jennie L. Mace, rendered on the 13th day of Novem1 Rehearing pending.

ber, 1888, in the district court of Stafford county, and that it was a first lien on the land described in the mortgage. On the 4th day of December, 1891, the plaintiffs below filed a reply to the answer and cross petition of Breneman, and denied the allegations of the cross petition. On the 18th day of February, 1892, this case came on regularly before the court for a trial on the issues joined, and plaintiffs, with the consent of the court, thereupon dismissed their action as against the defendants Edward Weilep and Madeline Weilep, and the defendants C. S. Mace and Jennie L. Mace withdrew their answers, and the court rendered a personal judgment against C. S. Mace for the sum of $3,609.89, and entered up a decree of foreclosure of the mortgage, and ordered the mortgaged premises sold in satisfaction of said judgment, and decreed that the mortgage was a first lien on the premises, and that the judgment of D. C. Breneman was a second lien on the mortgaged premises. Breneman excepted to the judgment finding his judgment a second lien, and filed motion for a new trial, which was overruled, and he duly excepted, made case, and brings the matter to this court for review.

The petition in error filed in this court makes only George S. Burr and A. M. Gloyd defendants in error. The case-made was not served on any of the parties except the plaintiffs below, and none of the other parties are brought into this court. George S. Burr and A. M. Gloyd, defendants in error, appear in this court, file their motion, and ask the court to dismiss the case for the reason that some of the persons who are necessary parties to any proceedings to reverse the judgment are not made parties by bringing them into court either by service of summons or by their volun. tary appearance herein; that more than one year has elapsed since the rendition of the judgment, and the parties cannot now be brought into this court. The plaintiff in error seeks to have the decree of the court foreclosing the mortgage and determining the priority of liens reversed, leaving the judgment stand against C. S. Mace and Jennie L. Mace without the benefit of the mortgaged property to satisfy the judgment. Mace and Mace were willing that judgment be rendered against them if they could have the mortgaged property sold to satisfy such judgment. A reversal of the decree of the court would materially affect the rights of Mace and Mace, and, they not being parties to the proceeding for a reversal of the judgment, this court cannot entertain jurisdiction of this proceeding. The supreme court of this state has held in a number of cases that the absence of a party to a judgment, who will necessarily be prejudicially affected by the reversal or modification of a judgment, defeats the jurisdiction of the court, and there can be no review of the judg ment, or any part thereof, unless the parties to be prejudicially affected thereby are brought before the court. Loan Co. v. Chicago Lumber Co., 53 Kan. 677, 37 Pac. 132; McPherson

v. Storch, 49 Kan. 313, 30 Pac. 480; Paper Co. v. Hentig, 31 Kan. 322, 1 Pac. 529; Paving Co. v. Botsford, 50 Kan. 331, 31 Pac. 1106; Bain v. Insurance Co., 3 Kan. App. 346, 40 Pac. 817. The failure to bring into this court all parties affected by this judgment compels is to allow the motion to dismiss. The case is dismissed, and the plaintiff adjudged to pay the costs in this court. All the judges concurring.

(57 Kan. 521)

SOUTHERN KANSAS RY. CO. v. PAVEY. (Supreme Court of Kansas. Dec. 5, 1896.) STIPULATIONS-AVOIDANCE-DAMAGES - EVIDENCE -HUSBAND AND WIFE-LOSS OF SERVICES.

1. R. C. P., a married woman, obtained judg ment against A., a corporation, in the district court of Franklin county, for damages for personal injuries, and A. sought a reversal of the judgment in this court. J. A. P., her husband, commenced another action against A. in the district court of Douglas county to recover damages for loss of the services of his wife, for medical attendance, etc. At November term, 1889, said case was continued by stipulation of the attorneys in open court, A's attorney acting without the express authority of A. or its general solicitor. The terms of the stipulation were that the case was not to be tried until the case of R. C. P. should be disposed of, and a final judgment in that case should be conclusive in this on the question of negligence, and, if final judgment should be obtained establishing the liability of A. in that case, then the question to try in this should thereafter be the amount of recovery: The judgment in favor of R. C. P. was affirmed by this court at January term, 1892, and A. paid and satisfied it. Afterwards A. filed a motion to set aside the stipulation, the case having been continued in the meantime, and on the hearing it was shown that on the next day after the stipulation was filed the attorney of A. who entered into it notified the general solicitor, who at once disapproved it, and the attorney of J. A. P. was so notified, but nothing was done by either party towards setting aside the stipulation, except as aforesaid. Held, that there was no error in overruling said motion and holding that A. was bound by it.

2. While it was competent, under the stipulation, to show that the judgment in favor of R. C. P. was affirmed, yet the court erred in admitting in evidence the syllabus and the opinion in that case, and this error was material, and perhaps prejudicial to A.

3. The petition of R. C. P., offered by A. for the purpose of showing that she claimed damages which were also included in the petition of J. A. P., was incompetent, and the court did not err in excluding it.

4. There being no intimation, either by pleading or proof, that R. C. P. pursued any vocation on her own account after her marriage, and it appearing from both that she was engaged in household work for her husband and family, J. A. P. may recover damages for the loss of her services.

(Syllabus by the Court.)

Error from district court, Douglas county; A. W. Benson, Judge.

Action by John A. Pavey against the Southern Kansas Railway Company for loss of services of his wife. From a judgment for plaintiff, defendant brings error. Reversed.

Rilla C. Pavey commenced an action against the Southern Kansas Railway Company in the district court of Franklin coun

ty to recover a judgment for damages for personal injuries alleged to have been sustained by reason of the negligence of the railway company on October 8, 1887. She recovered a judgment in that court for $6,000 and costs, and the judgment was brought to this court for review.

John A. Pavey, the husband of Rilla C. Pavey, commenced the original action in this case against the same company on March 8, 1889, in the district court of Douglas county, to recover damages for the loss of the services of his wife, for expenses, etc., on account of the injuries alleged to have been sustained by her as aforesaid. On April 2, 1889, the railway company filed a motion to strike out certain designated words from the petition. This motion was signed by George R. Peck, A. A. Hurd, and George J. Barker, as attorneys for the defendant. On June 20, 1889, the motion was sustained, and the plaintiff was given 10 days in which to amend his petition. The record recites that on November 26, 1889, a stipulation was made and entered into by and between the attorneys for the parties, the same being dictated to the stenographer by George J. Barker, Esq., attorney for the said defendant, in open court, and then transcribed by the stenographer, and filed with the clerk of said court, the body of the same being as follows: "It is stipulated by and between the parties hereto that this case shall be continued pending the litigation in the case of Rilla C. Pavey, now pending in the supreme court of the state of Kansas, and that a final judgment in that case shall be conclusive on the question of negligence in that case as well as in this. And if a final judgment in that case be obtained, establishing the liability of the defendant, then the question to try in this case shall thereafter be the amount of recovery. But it is distinctly understood that this case is not to be tried until that case is finally disposed of." At January term, 1892, the said judgment in favor of Rilla C. Pavey was affirmed by this court. 48 Kan. 452, 29 Pac. 593. Thereafter, on May 5, 1892, the railway company filed a motion to dismiss the action by reason of the failure of the plaintiff to obey the order of the court requiring the amendment of the petition by striking out certain words within 10 days. This motion was overruled, and at some time, the date not appearing, a substituted petition was filed, omitting the objectionable words. Leave was given to the defendant to plead within 20 days, and, the validity of said stipulation having been questioned, the court notified the defendant that if it desired to vacate the same, application therefor must be made at the then present May term, and on May 21, 1892, at said term, a motion was filed by the defendant to set aside said stipula tion on the ground that George J. Barker was a local attorney only for the defendant, and had no authority to make such stipula

tion, or to waive any question of fact in the case, or to compromise or settle the same or waive any defenses therein; and said stipulation was never approved by the defendant, nor any of its duly-authorized agents or attorneys; and that it had a valid and com plete defense against the plaintiff's alleged cause of action. The affidavits of W. Littlefield, A. A. Hurd, and George J. Barker were filed in support of this motion, and they tended further to show that Barker told J. G. Waters, attorney for the plaintiff, before entering into the stipulation, that he thought he had no authority to do so, but that he would notify A. A. Hurd, the general solicitor of the defendant for Kansas, and see if it would be approved by him; that on the next day he wrote to Hurd, informing him of the stipulation, and saying that, if it was not satisfactory, to let him know as soon as possible, and he would notify Waters that it was repudiated, and would have the case set down for trial at the next term, that in a day or two thereafter he received a letter from Hurd, stating that the stipulation was disapproved, and he so notified Waters; but neither party took any action for the vacation of the stipulation, nor for having the case set down for trial, until after the Rilla C. Pavey case had been decided by this court. On June 4, 1889, said motion to set aside the stipulation was overruled. The defendant filed answer in due time, being a general denial. The case was called for trial, and a jury impaneled, on December 8, 1892. On the trial said stipulation was offered and received in evidence over the objection of the defendant, the court holding that it was conclusive upon all questions of negligence, and that the only matter remaining for trial was as to the amount of damages recoverable by the plaintiff. Evidence was given tending to show the nature of the injury to Rilla C. Pavey, the expenses of medical attention, care, and nursing, and the extent of loss by reason of her disability. The plaintiff then offered in evidence the syllabus and the opinion of this court in said Rilla C. Pavey case, over the objection of counsel for defendant, who admitted that said judgment had been affirmed by this court, and paid by the company, together with interest and costs, amounting in all to $7,334; but, notwithstanding said admission, the court permitted the syllabus and opinion to be read in evidence. A demurrer to the plaintiff's evidence being overruled, the defendant offered testimony tending to impeach the validity of said stipulation, but this was excluded. Other evidence was admitted, relating to the injury to Mrs. Pavey, and the extent thereof, but the court excluded the amended petition of Rilla C. Pavey, which was offered for the purpose of showing that she had sued for damages which were also covered by the plaintiff's petition. The defendant requested certain instructions directed to the point that under

the petition and the evidence the plaintiff was not entitled to recover for the loss of his wife's services, but these were refused. The jury returned a general verdict in favor of the plaintiff for $4,000, and the answers to particular questions of fact show that this was made up of the following items, to wit: Loss of services of the wife, $3,640; medical attention, $250; nursing and care, $60; and medicines, $50. The motions of the defendant for judgment in its favor and for new trial being overruled, judgment was entered upon the verdict for the amount thereof and costs, and the railway company now seeks a reversal of said judgment.

A. A. Hurd, O. J. Wood, and W. Littlefield, for plaintiff in error. J. G. Waters and A. H. Case, for defendant in error.

MARTIN, C. J. (after stating the facts). 1. The question most argued in this case respects the validity of the stipulation, and the authority of Mr. Barker to enter into it. A litigant corporation must necessarily be represented in court by some officer, agent, attorney, or solicitor, and it is conceded that Mr. Hurd, the general solicitor of the company for Kansas, might have bound his client by a like stipulation. So far as it appeared from the record, Mr. Barker was equal in authority with Mr. Hurd. He was an attorney of record, and perhaps the only one representing the company present at the time the agreement for continuance was made. The court had a right to presume that he had authority, either express or implied, to stipulate in open court for a continuance upon certain conditions, and his act remained unchallenged in court about two years and a half, and until after the decision of this court in Mrs. Pavey's case. It was then shown, however, that the general solicitor did not approve the stipulation, and Mr. Waters, one of the attorneys for the plaintiff, was so notified; but, as the representatives of the company knew that this stipulation was of record, and was being acted upon by the continuance of the case in the meantime, it was incumbent upon them to signify to the court that it was unauthorized, and that the company would not be bound by it. There is no claim that Mr. Barker was expressly directed by the company or its general solicitor to make this stipulation, and, if he had no implied authority as an attorney to do so, then it should be disregarded, unless the company ought to be held to it by reason of the acceptance of the benefit thereof, and the long delay in moving for its vacation. The authorities are not harmonious as to the extent of the implied authority of an attorney in the management of the litigation of his client. In Marbourg v. Smith, 11 Kan. 554, 562, where it was claimed that counsel for the defendant in a slander suit agreed without the consent of his client that a dismissal of that case should bar an action for the malicious prosecution thereof, it was held that, if counsel made such an agreement, they had exceeded their au

thority. In Herriman v. Shomon, 24 Kan. 387, it was decided that an attorney employed to collect a note in the absence of special directions is authorized to receive money only in payment thereof. In Jones v. Inness, 32 Kan. 177, 4 Pac. 95, it was held that an attorney at law has no power, without express authority, to compromise or settle his client's claim. See, also, Rounsaville v. Hazen, 33 Kan. 71, 5 Pac. 422, and Mayer v. Sparks (Kan. App.) 45 Pac. 249. These cases, however, do not reach the point at issue here. In Howe v. Lawrence, 22 N. J.-Law, 99, 104, 106, it was held that an agreement wanting in mutuality, and by which, without the consent of his client, an attorney has waived his client's substantial legal rights, will not be enforced; and this case has been cited as authority for the position that an attorney cannot waive any substantial legal right of his client, but the case does not warrant any such assumption, the main ground of the decision being that the stipulation was altogether one-sided and entirely wanting in mutuality; the court saying, "Either the agreement must have been entered into by the counsel of the defendant under some misapprehension of its character, in which event it is not his agreement, or it must have been founded upon some corrupt consideration, in which event it is utterly void." It was an agreement (to use the words of Chief Justice Marshall, in Holker v. Parker, 7 Cranch, 436, 452) "so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on, or not fairly exercised, in the case." An agreement of such a character should, of course, be set aside by the court in the interest of justice. The agreement made by Mr. Barker does not belong in this class. It does not impress us as unreasonable or unusual. A case had been tried in the district court of Franklin county involving the negligence of the railway company and the contributory negligence of Mrs. Pavey in relation to the casualty whereby she received the personal injuries the subject of that action and of this. John A. Pavey was present with his wife at the time she was hurt. His contributory negligence perhaps would not defeat her right of action, while it might have that effect as to his own; but undoubtedly, on the trial, the attorney representing the railway company might have waived the defense of contributory negligence, even though raised by the pleadings. The stipulation was mutually advantageous. It saved each party the trouble and expense of taking the testimony as to the casualty without the risk of its loss by the death, removal, or absence of the witnesses. A final judgment in favor of the defendant in Mrs. Pavey's case would have ended this one, while an affirmance of the judgment already obtained was to be conclusive in this on the question of negligence, leaving for trial only the amount of the recovery. We regard the stipulation in the light of a waiver of proof on the question of negligence upon a certain condition not unreasonable in itself. Such waivers by attorneys are common, either before

or during the trial, without the express authority of the client, and they should usually be upheld unless in case of fraud, imposition, collusion, or mistake, when the court has ample authority to set them aside; but there is no suggestion of any of these in this case. This conclusion, in our opinion, finds support in the following authorities: Halliday v. Stuart, 151 U. S. 229, 235, 14 Sup. Ct. 302; Cox v. Railroad Co., 63 N. Y. 414, 418; Saleski v. Boyd, 32 Ark. 74, 83; Rogers v. Greenwood, 14 Minn. 333 (Gil. 256); Eidam v. Finnegan, 48 Minn. 53, 50 N. W. 933; Foster v. Wiley, 27 Mich. 244, 248, 249; Cheever v. Mirrick, 2 N. H. 376, 379; Moulton v. Bowker, 115 Mass. 36, 40; 2 Whart. Ev. § 1184.

2. The court erred in admitting in evidence the syllabus and the opinion of this court in the Rilla C. Pavey case. Under the stipulation it was competent to prove that the judgment in that case had been affirmed, and this might have been done by the introduction in evidence of a certified copy of the judgment of affirmance, but neither the syllabus nor the opinion forms part of the judgment in a civil case. In State v. Wait, 44 Kan. 310, 24 Pac. 354, and in Railroad Co. v. Dwelle, 44 Kan. 394, 408, 24 Pac. 500, it was held error to allow counsel to read to the jury the opinion of this court in another case; and it could not be less prejudicial to introduce the same in evidence, for this would authorize any proper comment upon it in argument. We have had some doubt whether the error was sufficiently material and prejudicial to require a reversal of the judgment, but have resolved it in the affirmative. In order to establish liability in this case, it was only necessary to prove that the judgment in Mrs. Pavey's case had been affirmed; but to disclose the extent of Mrs. Pavey's disability, and the plaintiff's loss resulting therefrom, evidence was necessary, and even the record in another case between other parties would be incompetent. Some of the comments of the court, however appropriate in that case, were not applicable in this; and, as the verdict was, to say the least, very liberal for the loss of services, it may have been influenced to some extent by this incompetent evidence. Besides, counsel for defendant admitted in open court that the judgment in favor of Mrs. Pavey had been affirmed, and this was all the legitimate matter furnishing an excuse for the reading of the syllabus and the opinion. Perhaps the admission may be good upon a subsequent trial (Railway Co. v. Shoup, 28 Kan. 394); but, at all events, it was sufficient to obviate the necessity for the introduction of any further evidence in relation to Mrs. Pavey's

case.

3. The court was right in excluding the amended petition in Mrs. Pavey's case even upon the assumption that she may have sought damages therein which were also claimed by the plaintiff in his petition. We must presume that she recovered in that action only the damages to which she was entitled, whatever her claim may have been; but, if her judgment

had been for more, this would be no sufficient reason for depriving the plaintiff of damages which he had sustained. There was no relation between the two cases as to the amount of damages which the respective plaintiffs were entitled to recover.

4. The instructions directed to the point that under the petition and the evidence the plaintiff was not entitled to recover for the loss of his wife's services were properly refused. There was no intimation, either by pleading or proof, that Mrs. Pavey pursued any vocation on her own account after her marriage, and it sufficiently appeared from both that she was engaged only in household work for her husband and family. The cases of City of Wyandotte v. Agan, 37 Kan. 528, 530, 15 Pac. 529, and railroad Co. v. Dickey, 1 Kan. App. 770, 41 Pac. 1070, are not inconsistent with a recovery in this case. The court carefully and correctly instructed the jury touching the kinds of damages recoverable by the plaintiff, and the findings show that the jury fully comprehended the instructions, and were governed thereby.

For the error in admitting in evidence the syllabus and the opinion in Mrs. Pavey's case the judgment must be reversed, and the case remanded for a new trial. All the justices concurring.

(57 Kan. 548)

CROLL V. ATCHISON, T. & S. F. R. CO. (Supreme Court of Kansas. Dec. 5, 1896.)

INJURY TO EMPLOYE-EVIDENCE.

An employé engaged in ditching the track of a railroad, who was at work about 10 feet from the track, was struck on the head by a chunk of coal, which fell from the tender of a passing engine, and severely injured. He alleged that it was the result of the negligence of the company, and in an action recovered damages. Held, that the testimony tends to show that the tender was overloaded, and that the injury was due to the negligence of the railroad company.

(Syllabus by the Court.)

Error from court of appeals, Southern department, Eastern division.

Action by Henry J. Croll against the Atchison, Topeka & Santa Fé Railroad Company. Judgment for plaintiff. On appeal to the court of appeals the judgment was reversed (45 Pac. 112), and plaintiff brings error. Reversed.

Robert C. Heizer, for plaintiff in error. A. A. Hurd, W. Littlefield, and O. J. Wood, for defendant in error.

JOHNSTON, J. On April 5, 1890, Henry J. Croll, an employé of the Atchison, Topeka & Santa Fé Railroad Company, was engaged in ditching along the railroad, and about 10 or 12 feet distant from the track. The track was well ballasted, and generally in good condition, but on account of recent rains, and the frost coming out of the ground, it had become somewhat soft and uneven. While a passenger train was passing the place where

Croll was at work, a lump of coal, weighing 12 or 15 pounds, rolled from the top of the tender to the ground, and, bounding from there, struck Croll on the head, seriously injuring his eye and face. He brought this action, charging that the company was negli. gent in overloading the tender, and in failing to keep its track in proper condition. At the trial there was testimony that the tender was very heavily loaded, that in the center of the tender the coal was heaped up two or three feet above the level of the top, and one witness states that it was piled above the flange which is on the outer edge of the tender. It appears not to be unusual to take a rounding load of coal, but it was shown-and, indeed, proof was hardly necessary-that it was not practicable or safe to heap it above the flange or edge of the tender. A demurrer to the evidence was interposed and overruled, but upon review the court of appeals held that there was no evidence tending to prove that the coal was negligently loaded, and ordered a reversal, with instructions to sustain the demurrer to the evidence. 3 Kan. App. 242, 45 Pac. 112. We are unable to concur in this view. There is little, if any, testimony of negligence as to the maintenance of the track, but we think there was evidence tending to show negligence in overloading the tender, and at least sufficient to take the case to the jury. It may be proper to carry a rounding load of coal, but certainly it is neither necessary nor safe to have it piled upon the flange or above the edge of the tender. It was contended that the testimony did not show that the coal was above the edge of the tender, but that given by Mayer will hardly bear that interpretation: "Question. State about what height the coal was piled up at the edge of the tender, if at all Answer. I should judge between two and three feet. Q. You mean in the center? A. Yes, sir. Q. About how high was it at the outer edge of the tender where it came to the edge of the flange? A. It was above the edge of the flange. I cannot say how far." On this testimony the jury found that the coal was loaded over the flange of the tender. If it was loaded on the flange or above the edge of the tender, the top coal would not have sufficient support, and a slight jar would be likely to loosen and dislodge some of it. Some of the witnesses stated that the tender was loaded in the usual way, but there is testimony tending to show that it was an unusual load. The fireman stated that it was usually rounded up about a foot or a foot and a half in the middle of the tender, while the testimony in this case shows that it was heaped up from two to three feet high above the tender. In this respect it differs from the case of Schultz v. Railway Co., 67 Wis. 616, 31 N. W. 321, and therefore cannot be regarded as a mere accident, for which there is no responsibility. In considering the demurrer, the evidence must be viewed in the light most favorable to the