
    S. W. Shattuck v. The Board of County Commissioners of the County of Harvey et al.
    
    No. 12,264.
    (66 Pac. 1057.)
    1. Practice, Supreme Court — Questions for Beview. Where a proceeding for review is begun more than a year after judgment but within a year after a motion for a new. trial was overruled, the only questions for consideration by this court are such as are available under a motion for a new trial. In this ca^e the question whether the special findings were sufficient to sustain the’ judgment was not involved in the motion for a new trial.
    
      2. Action to Quiet Title — Parties. The fact that the plaintiffs in an action to quiet title, which in this case were a county and a city, have not the same kind of title to the land is not material. to a defendant who claims under a tax title, and does not render the petition bad.
    Error from Harvey district court; M. P. Simpson,. judge.
    Opinion filed December 7, 1901.
    Division one.
    Affirmed.
    
      S. W. Shattuck, jr., for plaintiff in error.
    
      Brcmine & Bromine, for defendants in error.
   Per Curiam:

This was an action to quiet title-to a tract of land in Sedgwick City, Harvey county, which was held to have been dedicated for a public-park in Hurd v. Commissioners of Harvey County, 40 Kan. 92, 19 Pac. 325.

In a demurrer, Shattuck alleged that plaintiffs had no legal capacity to sue, and that facts sufficient to' constitute a cause of action were not stated. The demurrer being overruled, an answer was filed alleging that defendant had a legal and 'equitable estate in the land and was entitled to recover the possession of the same. On the trial the plaintiffs prevailed, the court finding that the land had been dedicated as a public park, and that the tax deed under which Shattuck claimed was void. Judgment quieting title as against him was decided on April 5, 1898, when a motion for a new trial was heard, and which was overruled on February 14, 1899. The case was brought up for review on February 14, 1900, more than a year after the judgment was rendered, but just a year after the motion for a new trial was overruled. This leaves no questions for consideration except such as are available under the motion for a new trial. The testimony was not preserved, and, therefore, not many of the points made in the case are open for review. The petition stated a cause of action sufficient to sustain the judgment. The fact that' the plaintiffs, the county and the city, did not have the same kind of title to the land, and that only the city, had the possession and control of it., is not material to Shattuck and does not render the petition bad.

The claim that the special findings do not sustain • the judgment is not good. The general finding supplements the special findings, and, in the absence of evidence and of findings to the contrary, it -will be presumed that the facts disclosed in evidence were such as supported the general finding and judgment. (Briggs v. Eggan, 17 Kan. 591; Wilson v. Janes, 29 id. 246; Kellogg v. Bissantz, 51 id. 418, 32 Pac. 1090; Pennell v. Felch, 55 id. 78, 39 Pac. 1023.) Apart from this consideration, the question whether the special findings were sufficient to sustain the judgment was not involved in the motion for a new trial, and the action of the court on the motion did not extend the time in which such a question could be brought up for review. (Osborne, Ex’r, v. Young, 28 Kan. 769.)

The judgment of the district court will be affirmed.

Doster, C.J., Johnston, Smith, Ellis, ,JJ.  