
    Z. B. Reed and Richard Reed v. Sexton’s Administrators.
    1. Bevivor of Actions; Waiver of Formal Bevivor. Where an action is commenced in a justice’s court, and afterward appealed to the district court, and while there pending the plaintiff dies, and an administrator is,then appointed, who files a petition in the district court, setting forth the foregoing facts, and also the original cause of action set forth in the original bill of particulars, and the defendant answers to this petition, and then goes to trial upon these pleadings without at any time raising the question that the action has not been revived in the name of the plaintiff, or any representative of the deceased, held, that the defendant, by his acts, has waived the formal revivor of the action, and therefore, cannot now in the supreme court, and for the first time, raise any such question.
    2. Pleading; Allegations of Authority; Unverified Answer. Allegations in a petition, stating the appointment and authority of an administrator, are not put in issue by an answer not verified by affidavit.
    3. Herd Law; Order of County Board; Publication; Computation of Time. The herd law of 1872 can go into operation in any particular county, only after an order of the board of county commissioners to that effect has been published for four consecutive weeks; but when the order is published in a weekly newspaper it is not necessary that the order should be inserted in such paper five times. Four insertions are all that are necessary; and the law will then go'into operation in such county on the beginning of the twenty-ninth day after the first publication.
    
      Error from Dickinson District Court.
    
    Trespass, brought by Sexton, in his lifetime. Action continued in names of his administrators. Trial, and judgment in favor of plaintiffs, at September Term 1875. Reed 
      and Reed, defendants, bring the case here. The subjoined opinion contains a sufficient statement of the facts and proceedings.
    
      Hoffmire & Pierce, and Johnson & Davis, for plaintiffs in error:
    On the trial the defendants in error introduced a certified copy of an order of the board of county commissioners prohibiting the running at large of certain animals, and evidence tending to prove its publication, etc. The introduction of the above was objected to, and exception taken. They further proved that deceased “had sustained damages as stated in the said petition.” This was all the evidence. Plaintiffs in error filed a demurrer to the evidence, which was overruled^ and exception saved.
    1. While the administrators might have amended their pleadings, or filed new pleadings by allowance of the court in furtherance of justice, they did neither. The petition on which the case went to trial was nothing but a motion for an order reviving the action in the names of the representatives. It merely asked that said action (meaning the action then pending) might be so continued by them, (the representatives,) that they might have judgment. Treating it as a petition upon which to try a case, the demurrer should have been sustained.
    2. But whatever view may be taken of such petition, the record shows no order of the court, as required by statute, (Code, § 426,) reviving the action in the names of the representatives. Neither was there any evidence introduced showing that defendants in error were administrators of such estate. This was put in issue; and in the absence of such evidence, the demurrer to the evidence should have been sustained. 2 Green!. Ev., §338.
    3. It has been held that this herd law went into effect in Dickinson county on the completion of the publication of the order, which the evidence shows, was on the 19th of April 1872, if such publication ever was completed. (Hoover v. Mear, 16 Kas. 11.) In the petition it is averred that the trespass was committed since the first day of May 1870; and there is no evidence in the record (and all the evidence adduced at the trial is in the record,) to show that these alleged trespasses were committed after the -law went into effect. While the court properly instructed the jury to inquire in regard to such trespasses only as were committed after the 19th of April 1872, there is no legal presumption that such instruction was understood and obeyed; and in the absence of testimony showing that a trespass was committed after that date, the demurrer to the evidence should have been sustained.
    4. The law could go into effect only after the publication of the order for four consecutive weeks, (Laws 1872, ch. 193, § 2,) a compliance with which would require five insertions in the paper, whereas the evideuce shows that there could have been but four, commencing March 21st, and ending April l'lth, 1872. It has been decided by this court that this law could not have been put in force under this identical order as early as April 12th, for want of time to make the publication; and yet the testimony clearly shows that the last publication was made on April 11th. (Hoover v. Mear, 16 Has. 11.) The publication was therefore entirely insufficient, and the law never went into effect. 16 How. U. S. 510; 47 Penn. St, 791; 37 Miss. 567.
    5. The proof of publication was insufficient for the further reason, that where a statute requires a notice once a week for four weeks, an interval of seven days must be shown to have elapsed between each publication. It has been held that a publication on the 11th, 21st and 27th of January and the 1st and 10th of February does not comply with such statute. 5 Ben. 553.
   The opinion of the court was delivered by

Valentine, J.:

This was an action brought by James Sexton against Z. B. Reed and Richard Reed, for trespasses alleged to have been committed by the defendant’s cattle upon the plaintiff’s crops. The action was commenced before a justice of the peace, and after judgment in that court was taken on appeal to the district court. Afterward Sexton died, and George W. Sexton and Milberry Sexton were appointed administrator and administratrix of his estate. Afterward the administrator and administratrix filed a petition in the case in the district court, reciting all the foregoing facts (and more too) in detail, giving the plaintiff’s original bill of particulars in full, and asking, that the action may be continued by them, and “that they may have their judgment against the said defendants for-the sum of $100, and costs of suit.” The defendants demurred to this petition on the ground that it did not state facts sufficient to constitute a cause of action. But the court below, rightfully as we think, overruled the demurrer. The defendants then answered, by filing a general denial. This answer was not verified by affidavit, and of course did not put in issue the allegations of the petition, that the plaintiffs were appointed and had authority to act as administrator and administratrix. (Gen. Stat. 650, civil code, § 108.) A trial was had upon this petition and answer before the court and a jury. No objection was at any time made that the original action had not been revived in the name of said administrator and administratrix. Evidence was introduced' by the plaintiffs; and when the plaintiffs rested, the defendants demurred to the evidence, on the ground that' no cause of action was proved. This demurrer was rightfully overruled, as we think. The court then instructed the jury, that;—

“If the jury believe from the evidence that the stock of the said defendants trespassed upon the premises of the said plaintiffs, as alleged in their petition, they will find for the plaintiffs, and assess whatever damages the plaintiffs have proven to have sustained 'by reason of such trespasses, if any, after the 19th of April 1872, and before the comme7icement of this suit.”

A verdict was returned in favor of the plaintiffs and against the defendants for $45. The defendants moved for a new trial, on the grounds that the verdict was “contrary to law,” and “not sustained by sufficient evidence,” and “error of law occurring at the trial and excepted to by the defendants.” This motion was overruled, as we think it should have been, and judgment was rendered in accordance with the verdict. The defendants below, as plaintiffs in error, now bring the case to this court, and ask that said judgment be reversed, on the grounds that the court below erred in overruling said demurrers, and said motion for a new trial, in giving said instruction, and in giving judgment for the plaintiffs below when as they claim it ought to have been given for the defendants below.

1. Revivor of actions; waiver. 2. Pleading; allegations not denied on oath. We do not think that any substantial error was committed. In response to the various points made by counsel for plaintiffs in error in their brief, we would answer as follows: The petition below evidently stated a good cause of action in favor of the plaintiffs and against the defendants. The << case _ macje ” brought to this court does not show that the action was not revived in the name of the plaintiffs below, or that it was not revived in the most formal and ceremonious manner. But even if it was not formally revived, still the defendants waived the same by answering to said petition, and by going to trial thereon without ever raising any question concerning the revivor of the action. And they cannot now for the first time raise any such question. That the plaintiffs were administrator and administratrix, was admitted by the pleadings, and was probably also proved. The “case-made” shows that the plaintiff, after introducing certain evidence, “then proved” “that the plaintiffs” [not “the deceased,” as stated in the brief of counsel for plaintiffs in error,] “had sustained damages as stated in the said petition of the said plaintiffs,” [not, as stated in the bill of particulars of the deceased.] The plaintiffs could not have sustained damages as stated in their petition in any other manner than as administrator and administratrix; and hence, as they proved that they sustained damages in that manner, they must necessarily have proved that they were administrator and administratrix. This is- meeting a very technical point made by counsel with an answer equally objectionable. The cjuestion as to whether the plaintiffs were administrator and administratrix was really not in issue, (civil code, § 108,) and therefore there was no necessity for making any proof concerning the the same. The petition alleged that said trespasses and damages were committed after the 1st of May 1870 and before the commencement of this suit, which was on 22d May 1873. And, according to the "case-made," the damages were proved just as they were alleged. That is, damages were proved, as well as alleged, to have been committed both before and after April 19th 1872. The court however instructed the jury to find for such of said damages only as were sustained after 19th April 1872, and we must presume that the jury obeyed the instructions of the court.

- Counsel for plaintiff in error also make the following point:

"The [herd] law could go into effect only after the pub-. lication of the order [of the board of county commissioners] for fQur consecutive weeks, (Laws 1872, page 384, oh. i 93, § 2,) a compliance with which would require five insertions in the paper, whereas the evidence shows that there could have been but four, commencing March 21st, and ending April 11th 1872. It has been decided by this court that this law could not have been put in force under this identical order, as early as April 12th, for want of time to make the publication.; and yet the testimony clearly shows that the last publication was made on April 11th. (Hoover v. Mear, 16 Kas. 11.) The publication was therefore entirely insufficient, and the law never went into effect."

Of course, the herd law can go into practical operation in any particular county only after an order of the board of county commissioners to that effect has been published for four consecutive weeks. But when this order is published in a weekly newspaper, it is not necessary that the order should be inserted in such paper five tithes. Four insertions are all that are necessary. If it should be inserted in such paper on March 21st, and 28th, and on April 4th, and 11th, it would be sufficient, and the law would then go into operation in such county on the beginning of the 18th day of said April. That is, the order must be published in every issue of the paper from the first insertion to the last, and need be published only four times. Of course, the four weeks would not end on the day of the last publication. They would end only on the day next preceding the fifth issue of the paper. They would end on the 28th day after the first publication. If the first publication were on Thursday, they would end on the fourth Wednesday following. The law would take effect on the beginning of the 28th day after the day on which the first publication was made; or, on the beginning of the fifth Thursday, if the first publication were on Thursday. In the computation of the time, one day, either the first or the last, is included, and the other is excluded. Four weeks cannot have five Thursdays, or five of any of the other days of the week. As to the proper manner for the computation of time, see Dougherty v. Porter, 18 Kas. 206; Mound City Mutual Life Ins. Co. v. Twining, 19 Kas. 376, 377. We think the publication of said order in the present case was sufficient.

The judgment of the court below will be affirmed.

All the Justices concurring.  