ous facts and circumstances tended to prove that defendant compelled the boy to assist him in driving the father's cows to the defendant's corral. Such an invasion of the boy's freedom was itself an assault. 3 Cooley's Blackstone, 1200.

sentation and fraud of the plaintiff as plead- [a gun and a whip was admitted; and varied, and these warranted the ruling that was made. On the merits of the controversy, the plaintiff had no greater rights against the garnishee than the defendant had. He was not entitled to any more than the garnishee owed to the defendant when process was served upon him. D. P. Johnson v. J. A. Brant et al., 38 Kan. 754, 17 Pac. 794; Rock Island Lumber & Manufacturing Co. v. Equitable Trust & Investment Co., as Garnishee, et al., 54 Kan. 124, 37 Pac. 983; Rich v. Roberts, 103 Kan. 116, 172 Pac. 996.

The evidence examined, and held sufficient to support a conviction for assault.

Appeal from District Court, Scott County. Julian Coyle was convicted of an assault, and he appeals. Affirmed.

A. C. Banta, of Great Bend, and Leo T. Gibbens, of Scott City, for appellant.

S. M. Brewster, Atty. Gen., and H. A. Russell, of Scott City, for the State.

DAWSON, J. The defendant was convicted of making an assault on a boy. On the assumption that the boy's father was permitting his cattle to eat defendant's feed, de fendant went out one morning, armed with a shotgun and a whip, and compelled the boy, a lad of 11 years, to assist him in driving the cattle to his (defendant's) corral.

Defendant was charged, not only with an assault upon the boy, but with having made a "gun play" the same morning upon the boy's father and sister. The jury ignored the charge based upon the assault on the father, and likewise the charge of assault upon the sister. As to those charges, no verdict was rendered, and neither party objected to this omission.

The case is too clear for discussion, the record discloses no error, and the judgment is affirmed. All the Justices concurring.

(103 Kan. 659)

HERMAN v. GARDNER et al. (No. 21533.)
(Supreme Court of Kansas. Nov. 9, 1918.)
(Syllabus by the Court.)
JUDGMENT 119 TRIAL 5-Default-
TIME OF TRIAL.

When a party to an action deliberately puts himself in default, so far as he is concerned, the action may be tried and judgment may be rendered at any time thereafter.

Appeal from District Court, Finney County.

Action by John W. Herman against Samuel S. Gardner and others. Judgment for certain defendants, and plaintiff appeals. Af

firmed.

W. C. Pearce, of Garden City, and C. M. Williams, of Hutchinson, for appellant.

Fred J. Evans, of Garden City, and Roscoe Wilson, of Hutchinson, for appellees.

MARSHALL, J. The plaintiff, John W. Herman, appeals from an order refusing to set aside a judgment rendered against him. In March, 1912, judgment was rendered in favor of the plaintiff and against the defendants, including J. F. Anderson (now deceased) and Mary V. Anderson, quieting title in the plaintiff to certain real property in Finney county. Service was by publication, and judgment was rendered by default. In August, 1914, J. F. Anderson filed his motion to open the judgment and be permitted to defend. That motion was allowed on March 15, 1915, and J. F. Anderson then filed his answer and cross-petition. Anderson asked for judgment against the plaintiff in the sum of $10,000. The plaintiff asked, and was given, 30 days in which to plead to the answer and cross-petition. On May 10, 1915, the court, on the motion of the plaintiff, set Defendant contends that the evidence to aside the order giving him 30 days to plead. support his conviction of assault upon the The plaintiff then announced in open court boy was insufficient. The boy testified plain- that he intended to appeal to the Supreme ly, simply, and positively that defendant Court from the order opening the judgment pointed the shotgun at him and ordered him quieting title in his favor. That appeal was to help turn the cows towards defendant's afterward taken. On July 28, 1915, judgcorral. That alone would be sufficient, if the ment was rendered against the plaintiff and jury saw fit to believe it, and if their ver- in favor of J. F. Anderson for $4,000. The dict had the approval of the trial judge. 3 judgment recites that the plaintiff failed to Cyc. 1022, 1025; 40 Cyc. 871. Here, however, answer, reply, or otherwise plead to the anthere were some corroborative circumstances. swer and cross-petition of defendant J. F. The father testified that he heard his son Anderson; that the plaintiff did not appear crying. The fact that the defendant carried on the trial, either in person or by attorney;

and that J. F. Anderson introduced his evi-I dence and rested. On September 15, 1915, the plaintiff filed his motion to vacate the latter judgment on the ground of irregularity in obtaining the same, and on the further ground that the judgment was rendered before the action regularly stood for trial. When the plaintiff procured the order setting aside the order granting 30 days to plead to the answer and cross-petition, the trial of the cause was, on Anderson's application, continued until the next adjourned term of the court. The plaintiff's motion to set aside the judgment against him alleged:

"That trial of the issues in this case on the 10th day of May, 1915, was continued until the next ensuing adjourned session of said court. That an adjourned session of said court after May 10, 1915, was held on June 30, 1915, but this cause was not called for trial, nor in any manner presented to the court, nor was it continued for trial to any other adjourned session of the court. That at said adjourned session, on said June 30, 1915, local counsel for said Anderson, Mr. Fred J. Evans, was present in court, as was also W. C. Pearce, local counsel for said plaintiff, but the said defendant Anderson took no steps toward bringing said cause to trial at that time, there being nothing done in said cause on June 30th. Counsel for defendant Herman was of the impression and believed that said case would not be called for trial until the next regular term of said court. That afterwards, and on July 28, 1915, another brief adjourned session of said court took place. That said plaintiff and said Anderson were both nonresidents of this county, and were neither one present at said session. That said W. C. Pearce was present at said session of the court during a good part of the time the court was in session, and during that time said cause was not referred to nor called for trial. That said Pearce was physically unable to attend the entire session of said court, and when he left the court room he went home and there remained the balance of the day. That he knew nothing of the matter of said cause being called for hear ing on said day, and was not advised nor in formed that it was the intention of counsel for Anderson to present said case at said time. "Plaintiff further represents and shows unto the court that at the time of presentation of said case on July 28, 1915, the record showed that plaintiff intended to appeal from the order of this court heretofore obtained, and had actually appealed said cause to the Supreme Court of Kansas."

These cases do not support the position taken by the plaintiff, but no good purpose will be served by showing wherein they differ from the one now under consideration. The judgment is affirmed. All the Justices concurring.

(103 Kan. 672)

LINN COUNTY BANK v. DAVIS et al.
(No. 21570.)
(Supreme Court of Kansas. Nov. 9, 1918.)
(Syllabus by the Court.)

1. FRAUDULENT CONVEYANCES

47-BULK

SALES LAW-CREDITORS-TITLE. Where, upon the sale of a stock of merchandise, the vendor furnishes a list of creditors, from which one is omitted, and the list is not verified by his oath, as required by the bulk sales law, the title does not pass as against the omitted creditor, and he may follow the goods into the hands of the buyer. 2. FRAUDULENT CONVEYANCES 47-BULK SALES LAW-"SALE OR DISPOSAL."

A chattel mortgage of a stock of merchandise, at least when accompanied by the taking of possession by the mortgagee, is a "sale or disposal" within the meaning of that phrase as used in the provision of the bulk sales law requiring a list of creditors to be furnished in order to render such a transaction valid. 3. CHATTEL MORTGAGES 190(1)-SALES ACCOUNTING BY MORTGAGOR-INVALIDITY. A chattel mortgage on a stock of merchandise, from which sales were permitted to be made by the mortgagor without any accounting, is held to have been invalid. 4. FRAUDULENT CONVEYANCES

-

322-SUB

un

ROGATION 14(1) BULK SALES ACTRIGHTS OF PURCHASER-RECOVERY. dise, who has been furnished with an Where a purchaser of a stock of merchanverified list from which one creditor is omitted, is innocent of intentional wrong, he is entitled, when sued by the omitted creditor, to be subrogated to the rights of the listed creditors, whose claims he has paid, and the plaintiff's recovery should be limited to that proportion of the value of the goods which his own claim bears to the total indebtedness of the vendor at the time of the sale, including a debt owing to the purchaser which formed the consideration for the transfer. 5. FRAUDULENT CONVEYANCES (1)-BULK SALES LAW-RIGHTS OF CRED

ITORS.

237(1), 263

Although a creditor may invoke the benefit of the bulk sales law by a direct action against one who has purchased goods without the requirements of that statute having been complied in an action on his claim against the seller, alwith, yet if he elects to proceed by garnishment, legations regarding the sale have no office to perform in the petition.

Appeal from District Court, Reno County.
Action by the Linn County Bank against

There was evidence to support these allegations of the plaintiff's motion. From the order denying that motion the plaintiff appeals. J. W. Herman deliberately put himself in default, and thereafter, so far as the record shows, failed to indicate to the court that he intended to further contest with Anderson, except through an appeal to this court. O. L. Davis, with garnishment against R. Under these circumstances, it cannot be said L. Glascock. Judgment for the garnishee, that there was any irregularity in obtaining and plaintiff appeals. Reversed, and cause the judgment; neither can it be said that remanded. judgment was rendered before the action regularly stood for trial. Leonard v. Hargis, 58 Kan. 40, 48 Pac. 586. To support his contention the plaintiff cites Sawyer v. Bryson, 10 Kan. 199; Johnson v. Ware, 67 Kan. 840, 73 Pac. 99; Patterson v. Oil Co., 101 Kan. 40, 165 Pac. 661.

Carr W. Taylor, of Hutchinson, for appellant.

C. M. Williams, of Hutchinson, for appellee.

MASON, J. On March 20, 1917, O. L Davis, a merchant, executed a bill of sale on

his stock to R. L. Glascock, who took pos-liams v. J. W. Crowdus Drug Co. (Tex. Civ. session thereof. On March 24, 1917, the App.) 167 S. W. 187. Linn County Bank, a creditor of Davis, [2] 2. So far, it has been assumed that the brought an action against him upon its Bulk Sales Law applies to the transaction claims, and caused a garnishee summons to involved. A doubt on this question arises be served upon Glascock, who filed an an- from evidence that the bill of sale referred swer denying any liability to Davis. The to was given as security, and from the cirplaintiff took issue on this answer on the cumstance that at the time of its execution ground that the transaction between Davis and Glascock involved a violation of the Bulk Sales Law, inasmuch as it had been given no notice thereof. A trial resulted in a judgment in favor of the garnishee, and the plaintiff appeals.

[1] 1. At the time of the execution of the bill of sale, the seller gave to the buyer a list of his creditors, complete except for the omission of the plaintiff. The buyer (the garnishee), having no knowledge of the existence of the plaintiff's claim, paid off all the other creditors. He contends that these facts protect him from liability, assuming that the Bulk Sales Law is applicable to the transaction.

the buyer agreed in writing to reconvey the property upon the repayment of the purchase price within a fixed time. If, however, the bill of sale is deemed to have been in legal contemplation a chattel mortgage, we still regard it as constituting a "sale or disposal" of the stock within the meaning of the statute. If the owner of a stock of merchandise, while allowed to sell it only upon notice to his creditors, could mortgage it effectively without such notice, the evasion of the statute would be so easy as to deprive it of all practical force. In this state the title to chattels passes by the execution of a mortgage (Gen. Stat. 1915, § 6501), which therefore amounts to a sale, or at least to a disposal. This view finds support in decisions elsewhere. Baker v. Nipper (Tex. Civ. App.) 198 S. W. 596; Semmes v. Stecher Brewing Co., 195 Mo. App. 621, 187 S. W. 604. In some jurisdictions what might seem to be a contrary conclusion is reached, but this is by reason of local statutes under which the mortgagor of chattels continues to be their owner. Des Moines Packing Co. v. Uncaphor, 174 Iowa, 39, 156 N. W. 171; Hannah & Hogg v. Richter Brewing Co., 149 Mich. 220, 112 N. W. 713, 12 L. R. A. (N. S.) 178, 119 Am. St. Rep. 674, 12 Ann. Cas. 344; Dill et al. v. Ebey, 27 Okl. 584, 112 Pac. 973, 46 L. R. A. (N. S.) 440.

There is some conflict of judicial opinion as to the effect of the omission of one or more creditors from a list otherwise properly furnished in accordance with the Bulk Sales Law, at the time of a sale of a stock of goods. In some jurisdictions it is held that in such a case the omitted creditors have no remedy against the buyer (Coach v. Gage, 70 Or. 182, 138 Pac. 847; International Silver Co. v. Hull, 140 Ga. 10, 78 S. E. 609, 45 L. R. A. [N. S.] 492), even if he learns of their claims before making payment (Glantz v. Gardiner [R. I.] 100 Atl. 913, L. R. A. 1917F, 226). A view more in keeping with the spirit and purpose of the statute is that the buyer is bound to hold any part of the price [3] 3. It appears that in May, 1916, Davis still under his control when he is advised of had executed a chattel mortgage on the stock the existence of a creditor not mentioned in to Glascock to secure the same debt, and it the list. In re Thompson (D. C.) 242 Fed. is suggested that this gave a valid lien 602. See, also, Rabalsky v. Levenson, 221 which is a protection to the garnishee. AsMass. 289, 108 N. E. 1050. Here the transfer suming that this mortgage, if otherwise of stock was made in consideration of a pre- valid, would not itself have been void under existing debt, and it seems that (inasmuch the Bulk Sales Law, it cannot be regarded as a release procured by the debtor's, fur- as affecting the present situation, for it pernishing an incomplete list of creditors, in mitted sales by the mortgagor without an acviolation of the law, would be ineffective) counting, thus rendering it ineffectual (Bank the buyer would have parted with nothing in v. Hardman, 89 Kan. 212, 131 Pac. 602), and the transaction, and would therefore be an- the mortgagee said of it on the stand that swerable to the omitted creditor. That, how- "this merchandise stuff was changing hands ever, need not be determined, for the same all the time and it wasn't security." result follows from another circumstance. [4] 4. It results from these considerations The statute requires the list of creditors that error was committed in denying the given to the buyer to be certified by the plaintiff all relief. The extent of his reseller under oath to be complete. Gen. Stat. covery, however remains to be determined. 1915, § 4894. No such verification was made The goods in a sense constituted a trust in this case. If the buyer had insisted upon fund for the benefit of all creditors alike, and the law being followed in this regard, it is as the purchaser was free from intentional conceivable that the seller would have used wrong, he may justly be subrogated to the more diligence in assuring himself of the rights of the creditors whose claims he has completeness of the list. At all events, the paid off. Note 51 L. R. A. (N. S.) 343; L. buyer, having closed the deal without requir- R. A. 1917D, 1067. Nor is any reason aping a compliance with the statute, acted at parent why his own claim should not be as his peril, and the title he received is subject favorably treated as those of others. We to the claims of the omitted creditor. Wil- conclude therefore that the plaintiff should

Appeal from District Court, Sedgwick assuming entire control of it. 2 Dillon on County.

Judgment was rendered in his favor, and the respondents appeal.

ticle may be found in it which is fit for hu- ter.
man food-has no greater effect. Where ar-
ticles of that character are cast aside by
their owner and mingled with ordinary ref-
use, the municipal authorities, for the pur-
pose of guarding against offensive and pos-
sibly unwholesome odors, which would nat-
urally arise unless such material is handled
with proper care, may control the disposition
of the whole mass in such way as they deem
expedient-either by allowing the owner to
remove it himself under certain regulations,
or by taking over its removal as a public
function, or by letting an exclusive contract
for its handling, as was done here.

It does not follow that a dealer in perishable goods, who finds himself with a quantity of them on hand which are so defective or damaged as to be unsalable in the ordinary course of business, may not sell them for some other use. But if he places them with ordinary waste matter he elects to treat them as garbage and justifies their being so treated by others.

The child's mother died when it was about six weeks old. Just before her death the mother expressed a desire that her parents, the respondents, take the child, and they did so. They have cared for it in a manner entirely compatible with its welfare, and doubtless the child would be well nurtured if left with them. The child's father, however, has established his residence in another city, and desires his daughter to be with him. He has provided a home, which is shared by his mother and two young sisters. He is of high character, is able to provide for the child fully as well as the respondents, and has done nothing to forfeit the claims with which nature and the law endow him. The respondents hope for an early improvement in their financial affairs; but the father is competent to support this child, 21⁄2 years old when the trial occurred, is a young man, and has prospects of advancement before him. The dying mother's request was

The judgment is affirmed. All the Justices doubtless wise and proper at the time, but concurring.

(103 Kan. 763)

BLAKEMAN v. CITY OF WICHITA. (No. 22093.)

(Supreme Court of Kansas. Nov. 9, 1918.) Appeal from District Court, Sedgwick County. Action by George Blakeman against the City of Wichita. Judgment for defendant, and plaintiff appeals. Affirmed.

John W. Adams, of Wichita, for appellant. Robert C. Foulston, Haymaker, Roberts & Jochems, and A. M. Ebright, all of Wichita, for appellee.

PER CURIAM. This case involves the same questions as No. 22092, Kirksey v. Wichita, 175 Pac. 974, and is affirmed for the same reasons.

she had no authority to dispose of the baby permanently. Probably she had no thought of doing so, and concurrence of the father in the request did not preclude him forever. In making its finding of fact regarding the welfare of the child, the court appears to have been guided by the principles announced in Swarens v. Swarens, 78 Kan. 682, 97 Pac. 968, Hollinger v. Eldredge, 90 Kan. 77, 132 Pac. 1181, and other decisions of this court of like tenor.

The finding is approved, and the judgment awarding custody of the child to its father is affirmed.

All the Justices concurring.

(103 Kan. 671)

Ex parte MEYER.

MEYER v. CHRISTLER et ux.
(No. 21552.)

(Supreme Court of Kansas. Nov. 9, 1918.)

(Syllabus by the Court.) HABEAS CORPUS 85(1)—AWARD OF CUSTODY TO FATHER-EVIDENCE.

The evidence examined, and held to sustain the judgment of the district court awarding the custody of an infant to its father.

Appeal from District Court, Barton County. Habeas corpus by Oscar Meyer against Henry E. Christler and wife to obtain the custody of plaintiff's infant daughter. Judgment for plaintiff, and defendants appeal. Affirmed.

A. C. Banta, of Great Bend, for appellants. Charles L. Carroll and Russell & Russell, all of Great Bend, for appellee.

BURCH, J. The action was one by the petitioner to obtain custody of his infant daugh

(Syllabus by the Court.)

DIVORCE 236-DECREE-ARRANGEMENT BE-
TWEEN PARTIES.

Parties to an action in which a divorce is

granted and the care, custody, control, and education of a minor child is given the plaintiff and alimony is given her out of which she shall pay for the education of the child, may, after the decree has been entered, make other arrangements for the support and education of the child, for the amount of alimony to be paid, and for the times of payment.

Appeal from District Court, Shawnee County.

Action by May Dutcher against Arthur B. C. Dutcher to recover amount due under decree of divorce. Demurrer to answer over

ruled, and plaintiff appeals. Affirmed.

Newell & Wallace, of Topeka, for appellant.

Stone, McDermott & Caster, of Topeka, for appellee.