class was expressly repealed. After the repeal that court had no jurisdiction of the case then pending before it. When the jurisdiction of a cause depends upon the statute, the repeal of the statute takes away the jurisdiction. Insurance Co. v. Richie, 5 Wall. 541. That case is unlike this. The motion to dismiss will be overruled.

Upon the trial Joseph Stimmell was asked on cross-examination, after testifying that he had taken several parties to the herd to see the cattle in dispute, this question: "Question. Why did you take those parties there to identify the cattle? Answer. Simply because I wanted to be perfectly sure that they were mine, and to substantiate the evidence if I had to go into controversy with Jim Hite, because -well, I say that I took those witnesses there to identify those cattle in case he and I should ever have to have trouble with those cattle." This was an answer to the question, and all the witness was asked for; but, taking advantage of the situation, he testified further before the jury as follows: "I was told that Jim Hite was a man that had trouble with everybody that he had anything to do with: that he had taken cattle that belonged to other parties; and one man in particular told me that he knew that Jim Hite had at one time a steer that belonged to him, but he had no evidence to prove it, and he had just simply let him go. The plaintiff moved to have that part of the answer of defendant which was merely hearsay evidence stricken out. This motion the court overruled. The plaintiff excepted.

The evidence which was asked to be withdrawn from the consideration of the jury was incompetent, irrelevant, and hearsay; therefore the trial court com. mitted error in overruling the motion of plaintiff. Muscott v. Hanna, 26 Kan. 770; 1 Greenl. Ev. (15th Ed.) § 99. The evidence was prejudicial, and may have influenced the jury in its verdict. The court's attention was expressly called to the matter, and there seems to be no excuse for its refusal to rule out such hearsay statements. Again, W. E. Lewis, a witness called for the defendant, was permitted to testify as follows: "Question. I will ask you, were you present at the trial before the justice? Answer. I was. Q. Did you see either of the cattle there, produced before the jury? A. Yes; saw the two. But the one that I noticed mostly was that with the white stripe on his side. Q. You may state who you say they belonged to. A. I say they belonged to Mr. Stimmell. Q. Whose cattle are they? A. I think they are Mr. Stimmell's." This evidence was objected to by plaintiff. Other witnesses were permitted to testify in a like manner over the objections of the plaintiff. This evidence was incompetent. Simpson v. Smith, 27 Kan. 565. It was said in that case that "it is seldom competent to prove a fact by a simple asser. tion of the fact itself; and this is especially true where the fact is of a complex character, and is the principal, if not the only, ground of contention in the case.

As a general rule, only such facts can be

testified to directly by the witness as are comparatively simple, primary, and elementary, and such only as come within the direct and immediate cognition of his senses. The witness should generally be directed to state what he has seen, heard, etc., and then he should state the same in detail, and not attempt to give it in the aggregate. Now, ownership of property is not one of such simple, primary, and elementary facts as come within the direct and immediate cognition of the witness' senses. On the contrary, it is one of that class of complex facts which can only be conceived in thought or realized in consciousness as a combination of a variety of constituent facts, or as an intangible inference or mere conclusion drawn from a variety of other facts more simple and less complicated in their nature." In the present case the principal fact to be proved was whether the plaintiff owned the steers in controversy. If he owned them he was entitled to recover. If he did not own them he was not entitled to recover. It was simply this question of ownership and nothing else which the jury were impaneled to try. It was therefore incompetent to permit witnesses to testify simply as to ownership. Other alleged errors are discussed in the briefs, but as they are not very material one way or the other we shall not comment thereon. It is perhaps unfortunate that we are compelled to grant another trial in this case, but as the plain and ordinary rules of evidence were flagrantly violated upon the trial, and as exceptions were properly taken by the plaintiff, we cannot avoid the duty imposed upon us. The judgment of the district court will be reversed and cause remanded. All the justices concurring.

1. Where a motion for a new trial is filed in the district court four days after the verdict of the jury was rendered, without any showing being made that the party filing the same was unavoidably prevented from filing it sooner, no ground for the new trial except that of newlydiscovered evidence can be considered; and this, although the action is one of forcible entry and detainer, commenced in a justice's court, and certified by the justice to the district court.

2. On a motion for a new trial on the ground of newly-discovered evidence, where the newlydiscovered evidence is merely cumulative, and the trial court overrules the motion, and there is sufficient evidence to sustain the verdict, held, that the supreme court cannot say that there was any material error in the ruling.

(Syllabus by the Court.)

Error from district court, Leavenworth county; ROBERT CROZIER, Judge.

John C. Douglass, for plaintiff in error. Lucien Baker, for defendant in error.

VALENTINE, J. This was an action of forcible entry and detainer, commenced by John C. Douglass on July 16, 1884, before a justice of the peace of Leavenworth county, against D. R. Anthony, to recover the possession of lots Nos. 9, 10, and 11, in block 17, in Leavenworth city proper. The de

fendant filed an affidavit with the justice of the peace showing that the title to the property in controversy was in dispute, and the justice certified the case to the district court, where two trials were had before the court and a jury, each resulting in a verdict. The first verdict was rendered in September, 1885, and gave one lot to the plaintiff, and two lots to the defendant; but, both parties being dissatisfied, the verdict was set aside, and a new trial granted. The second verdict was rendered April 27, 1886, and gave all the property to the defendant, and judgment was rendered accordingly; and the plaintiff, as plaintiff in error, brings the case to this court for review.

One of the questions litigated in the court below was whether the plaintiff's cause of action, if he ever had any, was not barred by the two-years statute of limitations, (Civil Code, § 16, subd. 5.) On the last trial, and probably on the first, evidence was introduced showing that the defendant had taken the possession of the property more than two years before the commencement of the action; and the jury on the last trial not only found generally in favor of the defendant, and against the plaintiff, but also found specifically that the defendant had taken the possession of the property more than two years before the commencement of the action. The verdict was rendered and the findings made on April 27, 1886, and four days thereafter the defendant filed a motion for a new trial, including various grounds; but, as no showing was made that he was unavoidably prevented from filing it sooner, (Civil Code, § 308,) the only ground for the new trial considered by the court was the one of newly-discovered evidence. Upon the hearing of this motion, a vast amount of evidence was introduced on both sides; but it was all, so far as it was material, merely cumulative, tending to show, on theone side, that the defendant had taken the possession of the property prior to July 16, 1882, and, on the other side, that he had not taken the possession of the property until after that time. The court overruled the motion, and we cannot now say that such ruling was erroneous. Even if all the evidence that the plaintiff introduced on the hearing of the motion had been introduced on the trial, the verdict of the jury might have been, and perhaps would have been, precisely the same as it was, and for the defendant; and then, if it had been sustained by the trial court, as the verdict as rendered was actually sustained by the trial court, after the trial court had heard all the evidence that was introduced on both the trial and the motion, we could not grant a new trial.

The plaintiff claims that he was misled and deceived by the manner in which the case was conducted and tried on the part of the defendant; but we do not think that the record discloses anything from which he should have been misled or deceived, and certainly not to an extent that would authorize him to obtain a new trial. What the pleadings were, except the plaintiff's complaint, is not shown. It would seem, however, from the trial of the case, that the principal question in

volved in the case was this: When did the defendant first take the possession of the property in controversy? Was it more or less than two years before the commencement of this action? Was it b fore July 16, 1882, or not? On the trial, the court stated the question thus: “I suppose the crucial question is when he [the defendant] took possession; and that depends upon what he did." What the evidence was on the first trial is not shown, and why the plaintiff did not file his motion for a new trial within three days after the rendering of the verdict is not shown; and certainly, upon the record as brought to this court, we cannot say that any material error was committed by the trial court. The judgment of the court below will be affirmed. All the justices concurring.

(45 Kan, 360)

TOPEKA CITY RY. Co. v. ROBERTS, County Treasurer.

(Supreme Court of Kansas. Feb. 7, 1891.)

ASSESSMENT OF TAXES-INJUNCTION.

After the property of a tax-payer had been listed, valued, and assessed, and the taxes levied thereon had been paid, the county commissioners determined that there had been an undervaluation of the property, and directed the county clerk to enter an additional valuation on the property, and to charge additional taxes thereon, which was done without notice. When the tax-payer learned what had been done, he ap peared before the board, and asked to have the assessment and taxes canceled and set aside. Held, that the taxes so charged were void, and that the owner of the property can maintain injunction to restrain the collection of the illegal taxes, although he first applied to the county board to cancel and set aside the same, and although he did not appeal from the adverse decis

ion of the board.

(Syllabus by the Court.)

Error from district court, Shawnee county; JOHN GUTHRIE, Judge.

Gleed & Gleed, for plaintiff in error. Bergen, Welch & Welch, for defendant in

error.

JOHNSTON, J. This was an action to enjoin the collection of certain taxes alleged to have been illegally charged against the property of the plaintiff by the county clerk of Shawnee county. It appears that the Topeka City Railway Company was engaged in business in the city of Topeka in 1885, and had property subject to taxation for that year. On the 1st day of June, 1885, Joab Mulvane, the president of the company, made a statement to the assessor of the company's personal property subject to taxation for that year, which statement the assessor accepted, and returned the valuation of the company's property to the county clerk as the same had been returned by the company in the statement aforesaid, which return the assessor duly certified under oath. Subsequently the county board of equalization met and equalized the property of the county, but they did not change the valuation of the property listed and returned as aforesaid. The county clerk placed upon the tax-roll of the county for that year the valuation so returned, and charged against the company a due proportion of

all the taxes for that year, and afterwards the company in due time paid to the county treasurer the full amount of all the taxes charged against it. Subsequently, a special agent of the county, who had been appointed to search for property subject to and which had escaped taxation, or which had been taxed at less than its true value, made a report that the company had omitted in its statement made to the assessor $25.395 of its personal property subject to taxation for 1885, by making an undervaluation thereof. On February 6, 1886, the board of county commissioners made an order directing the county clerk to place upon the tax-toll of the county a valuation of $25,395 opposite the name of the company as an additional assessment on the plaintiff's property, and to charge taxes thereon for that year to the amount of $1,086.86, which was done. No notice in writing of the proceedings by the special agent or the board of county commissioners or county clerk, in correcting the assessor's return, and in entering an increased valuation of the company's property on the tax-roll, was given to plaintiff until the proceedings had been taken, nor until February 27, 1886, when the president of the company received, through the post-office, a postal-card from the county treasurer, stating that additional taxes had been charged against the company. On March 13, 1886, the president of the company attended a meeting of the board of county commissioners, and made a statement under oath, and advanced arguments to the board, to obtain an order for the cancellation and setting aside of the additional assessments and charges, and for an order to the county clerk to strike the same from the tax-roll. Subse. quently the board reduced the charge of taxes against the plaintiff from $1,086.86 to the amount of $272.20. The county treasurer was about to collect the taxes charged, when this proceeding was brought to restrain him.

The only authority for the increase of the valuation, and for the additional taxes charged against the company, was under section 70 of chapter 34 of the Laws of 1876. This statute, however, provides that no change or correction shall be made until notice has been given. No notice or opportunity to be heard was given to the company before the increased valuation and additional tax were entered and charged against the company on the taxroll, and the action of the board and the clerk in entering and charging the same was clearly invalid, and the tax sought to be collected by the treasurer is wholly void. The invalidity of their action is conceded, but it is claimed that the appearance and action of the company before the board on March 13, 1886, waived the notice and cured the invalidity of the levy. We do not agree with this contention. The appearance at that time was for the sole purpose of inducing the board to order the clerk to strike from the taxroll and to cancel and set aside the illegal | assessment and charges that had been made and entered against the company. The right of the county clerk or commissioners to proceed at that time under scc

tion 70 of the tax-law to correct the assessment of the company was not conceded, nor did the findings show that the company waived the want of notice. The facts and proceedings in this case are very similar to those in Commissioners v. Lang, 8 Kan. 284. There, the board attempted to increase the valuation of Lang's property without giving the notice required by law. After Lang learned of the increase, he went before the board, and moved to have the error corrected, as was done by the city railway company in the present case; but, failing in this, he sued out an injunction to stop the collection of the additional tax sought to be charged against him. Chief Justice KINGMAN, who delivered the opinion of the court, held that the board was not authorized to proceed without notice, and that "their action in the premises was clearly invalid. Defendant, when he learned of the action of the board in December, moved the board to correct their error. Failing there, he paid the taxes he was justly chargeable with, and obtained an injunction to stop the collection of the illegal portion of the tax. This he was entitled to. See, also, Griffith v. Watson, 19 Kan. 27; Commissioners v. Sergeant, 24 Kan. 572. These authorities settle the question that the tax-payer is entitled to the remedy of injunction, although he may have first asked the board to cancel and set aside the illegal assessment and levy made against him, and although he may not have appealed from the decision of the commissioners refusing to cancel and set aside such illegal assessment and charge. The judgment of the district court will be reversed, and the cause remanded, with directions to enter judgment upon the findings in favor of the plaintiff in error. All the justices concurring.

(45 Kan. 363)

TOPEKA WATER-SUPPLY CO. v. ROBERTS, County Treasurer.

(Supreme Court of Kansas. Feb. 7, 1891.) ASSESSMENT OF TAXES-INJUNCTION.

1. An arbitrary increase of the valuation of property, and the extension of an additional tax thereon by the county clerk after the assessment had been returned, without notice to the owner of such action, is unauthorized, and the taxes charged illegal.

2. The owner is entitled to maintain injunction to restrain the illegal tax, and the fact that the owner first applied to the county officers to cancel and set aside the illegal tax, and failed to appeal from their refusal, will not defeat the remedy. Railway Co. v. Roberts, 45 Kan. ——, ante, 854.

(Syllabus by the Court.)

Error from district court, Shawnee county; JOHN GUTHRIE, Judge.

J. D. McFarland, for plaintiff in error. Bergen, Welch & Welch, for defendant in

error.

JOHNSTON, J. Action of injunction. After the property of the Topeka WaterSupply Company had been assessed for the year 1885, and the taxes thereon had been levied and paid, the county clerk of the county in which the property was situated, and in February, 1886, entered on

court, and also upon appeal in the district court, to introduce evidence to prove any set-off or counter-claim which he may have against the plaintiff, although he has not denied the correctness of the account sued on by affidavit.

3. Where, in an action before a justice of the peace, both the plaintiff and defendant file their bills of particulars or accounts, and the case is subsequently appealed to the district court and a trial is commenced in that court before a jury, upon the original papers on which the case was tried before the justice of the peace, amendments to the pleadings at that time by either party is largely in the discretion of the trial court. This court will not interfere, unless that discretion has been abused.

(Syllabus by the Court.)

HORTON, J. This was an action commenced on December 13, 1886, before a justice of the peace of Topeka, by Lydia Nichols, then in life, against Joel Baughman, on an account for rent, etc., the correctness of which was verified by her affidavit. At her request the justice of the peace ordered the defendant to file his bill of particulars, which was done. Mrs. Nichols, on leave of court, filed an amended bill of particulars on an account, the correctness of which she also verified by affidavit, wherein she claimed $204.70. These were the pleadings. The case was tried before the justice of the peace on January 4, 1887, and resulted in a judgment in favor of Mrs. Nichols. Baughman appealed to the district court. The case was tried in the district court, with a jury, on October 5, 1887, on the pleadings filed with the justice. When the case was called for trial in the district court Mrs. Nichols offered her bill of particulars in evidence, rested her case, and asked for judgment. Baughman then asked permission to file his affidavit, denying the correctness of the plaintiff's bill of particulars. The court refused, to which ruling he excepted. Baughman then asked permission to file an amended or additional bill of particulars. This was refused, and thereupon he withdrew his bill of particulars or set-off. This proceeding was filed in this court on March 1, 1888, and since that time Mrs. Nichols has died. The action has been revived in the name of George D. Hale, the administrator of her estate. Counsel for Baughman says "that the rulings of the district court deprived him of all hearing; that, even admitting the truth of the account of Mrs. Nichols, would that prevent the account of the plaintiff in error also from being correct? They can both be true, which in part is true in this case. A portion of the accounts of each party is correct, due, and owing by one party to the other, and it only awaits an adjudication and settlement of the disputed items of each side to settle the whole matter in dispute. But the action of the trial court in refusing the filing of the affidavit, denying the validity of plaintiff's claim, and in refusing the introduction of any evidence in the case, was a denial of that justice courts are established to maintain, and was an error that this court ought to cor

99

rect." The petition in error contains the following specific allegations of error only: "(1) The court erred in refusing to permit plaintiff in error to file his affidavit denying the correctness of the claim of the defendant in error. (2) The court erred in refusing to permit the plaintiff in error to file his amended and additional set-off when requested. (3) The court erred in the exercise of his judicial discretion in the trial of said cause, whereby plaintiff in error was prevented from having a fair and impartial trial. (4) The court erred in overruling the motion for a new trial." In Railway Co. v. Gould, 44 Kan. --, 24 Pac. Rep. 352, this court decided that, "where a claim or demand for money arises out of contract, either express or implied, and is for something furnished or performed by one party for another, but is not founded upon a promissory note or other instrument in writing, and a statement of such claim or demand is made out in detail and in writing by the claimant or demandant, and presented to the other party, such statement constitutes an account, within the meaning of section 84 of the justices' act, and section 108 of the Civil Code. Under the provisions of said section 84 of the justices' act, the correctness of an account, duly verified by the affidavit of a party, his agent or attorney, is taken as true, unless the denial of the same be verified by the affidavit of the opposite party, his agent or attorney. The opinion in Railway Co. v. Gould, supra, further stated that a defendant had the right, under said section 84, in both the justice's court and the district court, to introduce evidence to prove any set-off or counter-claim which he had, without any affidavit denying the correctness of a plaintiff's account. Therefore, if Baughman simply desired to prove his bill of particulars or set-off, which he had filed, it was not necessary for him to file any affidavit denying the correctness of Mrs. Nichols' account. In this view, the court committed no error in refusing to permit him to file the affidavit which he requested. If Baughman desired to dispute the items in the bill of particulars of Mrs. Nichols, he ought not to have delayed his motion nntil after the jury had been impaneled and the plaintiff had submitted her case. The statute provides that the case shall be tried de novo in the district court, upon the original papers on which the cause was brought before the justice, unless the appellate court, in furtherance of justice, allow amended pleadings to be made, or new pleadings to be filed. Section 122, Justices' Act. The matter of amending the pleadings after a trial is commenced is largely within the discretion of the trial court, with which we cannot interfere, unless that discretion has been abused. Taylor v. Clendining, 4 Kan. 525; Robbins v. Sackett, 23 Kan. 301; Map Co. v. Jones, 27 Kan. 177-180. If the bill of particulars of plaintiff below was not correct, Baughman must have known it before the trial. The trial before the justice of the peace was several months prior to the trial in the district court, and nothing is shown by the record of any surprise. The pleadings in the district court were the same as