Volume 10 — Kansas Court of Appeals Reports

<p>1. Pleading—Action on Contract—Common Carrier. A peti- ' tion which avers that the defendant is a railway corporation and common carrier, with power to make contracts for the transportation of freight; that a car-load of bananas was forwarded to plaintiff from New Orleans, La., to Leavenworth, Kan., over a line of common carriers, among which was the defendant company ; that the defendant in its turn received the car at Kansas City, Mo., on a certain day, but, disregarding its contract and duties as a common carrier, neglected and refused to transport and deliver the same with care and prudence; and that it was bound and obligated to carry said car of bananas and exercise due diligence in the same, but in violation of its said contract and of its duties as a common carrier it failed to do and perform its contract, and suffered and permitted the car to remain standing on its tracks in Kansas City, Mo., until the fruit became damaged, etc., states a cause of action arising upon contract.</p> <p>2. Evidence— Conversation with Deceased Agent. A conversation had with a« agent of a railway or other corporation, otherwise competent, may be proven, notwithstanding the decease of such agent. .</p>

<p>Sales—Negotiations—Conditional Acceptance. Where negotiations are entered into for the sale of. goods, there must be an unconditional acceptance of the offer or no contract is consummated.</p>

<p>Error from Jackson district court; Louis A. Myers, judge.</p>

<p>Error from Wyandotte court of common pleas ; W. <3.Holt, judge.</p>

<p>Contracts— Consideration— Compromise of Disputed Claim,. T. held a conveyance of land from the Union Pacific Railway Company, the same being a part of its grant, but for which no patent had been issued. L. and P. made entry of the land in separate tracts, under the act of congress of 1862-’64, providing for homesteads on the public domain, and certificates for the entries were given them therefor. They then entered upon the land and began making improvements. After negotiations and an examination of the records of the land-office, T. gave his note to them for $600 and paid them $400, in consideration of their relinquishing possession of the land and surrendering and having canceled their entries, and thereupon T. and his son made like entries, the entire transaction being in good faith. Held, that the settlement of the disputed claim and the relinquishment of the entries and possession thereunder constituted a sufficient consideration for the promise to pay money, notwithstanding the fact that the entries and possession thereunder were invalid for the reason that the land passed by the grant and was not subject to entry.</p>

<p>Mortgages oe Real Estate — Subrogation—Estoppel—Merger. H. held a first mortgage on the land of H. H. M. held a second mortgage, to secure to S. the payment of the note made by H. H. as principal and M. as surety. This second mortgage is expressly subject to H.’s. P. H. held a third mortgage. He took title to the land from H. H., and was, thereafter, compelled to pay the H. mortgage to protect his title, taking an assignment thereof. Subsequently he conveyed the land to L. M. assigned his mortgage to S., who seeks to foreclose. P. H. was entitled to subrogation to the lien of the H. mortgage. As against S., he was not estopped to claim the lien by his deed with covenants against liens to L., nor did his subsequent conveyances to L. have the effect to extinguish this lien by a merger as between S. and F. H. and L.</p>

<p>1. Practice, Courts of Appeals — Findings of Jury — Motion to Set Aside. In order to challenge, in this court, the insufficiency of the evidence to support the findings of fact by a jury, the party aggrieved should file his motion in the trial court to set such findings aside, and obtain a ruling thereon.</p> <p>2. - Questions for Jury — Review. The question as to whether or not a grain deal is a gambling contract is one to Be determined by the jury, under proper instructions; and where it is submitted to and determined by a jury, and their finding is supported by some evidence, and it is approved by the trial court, it will not be disturbed.</p>

<p>Error from Johnson district court; John T. Burris, judge.</p>

<p>Practice, District Court — Attachment — Motion after Judgment — Release of Levy. In an action to recover money, wherein attachment is levied on land, and after judgment and sale of the land, the district court has jurisdiction, under section 532 of the code (Gen. Stat. 1897, ch. 95, §554; Gen. Stat. 1899, §4823), to entertain a motion by a stranger to the suit holding title to such land to release the land from the levy and set aside the sale.</p>

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p> <p>STATEMENT.</p> <p>This proceeding in error is prosecuted to reverse a judgment of the district court of Shawnee county. The material facts necessary to a proper understanding of the case are stated in the pleadings. The petition, in substance, was as follows:</p> <p>‘ ‘ That at the time hereinafter mentioned the defendant, the Topeka Capital Company, was a corporation duly organized and existing under and by virtue of the laws of the state of Kansas, and that defendant Dell Keizer was, on the 1st day of February, 1896, for a long time prior thereto, and for a long time thereafter, business manager and agent of defendant, The Topeka Capital Company, in the operation and conducting of its business.</p> <p>“That on the 1st day of February, A. D. 1896, at Shawnee county, Kansas, the said defendant Topeka Capital Company made, executed and delivered to plaintiff its certain promissory note in writing of that date, agreeing by the terms thereof to pay to the order of plaintiff, March 1, 1896, the sum of five hundred dollars, with interest after due at the rate of ten per cent, per annum until paid.”</p> <p>The note reads:</p> <p>“$500. Topeka, Kan., February 1, 1896.</p> <p>“March 1 after date, for value received, we jointly and severally, as principals, promise to pay to the oi’der of H. T. March five hundred dollars, with interest after due at ten per cent, per annum until paid. Interest payable annually ; defaulting interest to draw the same rate of interest as principal. The makers, sureties, indorsers and guarantors of this note agree to pay reasonable attorney’s fees if suit is brought hereon, and severally waive presentment for payment, notice of non-payment, protest, notice of protest and diligence in bringing suit against any party thereto, and consent that time of payment may be extended without notice.</p> <p>Payable at office of March & Co.</p> <p>Due--The Topeka Capital Co.</p> <p>No. 289. Delii Kbizeb, B. Mas.”</p> <p>Indorsed on back : “Demand and protest waived.— Dell Keizer. Interest paid to Feby. 1, 1897.”</p> <p>The defendant interposed a general demurrer, upon the ground that the petition did not state a cause of action against the defendant. The demurrer was overruled. The defendant answered, in substance, as follows:</p> <p>“First. That said defendant denies each and every allegation in said petition contained.</p> <p>“Second. For a second and further defense herein, said defendant states that said Topeka Capital Company was organized as a corporation under the laws of Kansas on the 6th day of June, 1890, and ceased to do business as such corporation on or about the 1st of November, 1895.</p> <p>‘‘ Third. For a third and further defense herein, said defendant states that said Topeka Capital Company was organized as a corporation under the laws of the state of Kansas on June 6, and had at all times a board of six directors, and that the alleged note which purports to be set out in plaintiff’s petition herein never was executed by said company, and was never authorized by the board of directors of said company nor by a majority of said directors, nor by a quorum nor by a majority of a quorum of said directors, and this defendant is not indebted to said plaintiff on account thereof in any sum whatever.</p> <p>“Fourth. For; a fourth and further defense herein, said defendant .states that the alleged note which purports to be set out in the petition herein was made for a loan by private persons, and that no loan was ever made or authorized by said Topeka Capital Company.</p> <p>“Wherefore, this defendant asks to be dismissed hence with all costs.”</p> <p>The answer was verified by the oath of Harrison, as attorney, as follows:</p> <p>“I, T. W. Harrison, being duly sworn, say that I am the attorney for the Topeka Capital Company herein; that I have been one of the directors of said Topeka Capital Company ever since it was organized as a corporation under the laws of Kansas, in June, 1890, and am familiar with the records of said company ; that I have read the third division of the above and foregoing answer and know the contents thereof, and that the facts stated therein are true, as I believe.”</p> <p>The plaintiff, for his reply, set out: (1) A general denial; (2) for</p> <p>“further reply, plaintiff alleges that the note set out in plaintiff’s petition was executed and delivered to plaintiff February 6, 1896, as alleged in plaintiff’s petition, and was so executed and delivered in renewal of a certain note made, executed and delivered by the Topeka Capital Company long prior to November 1, 1895, for a loan of' $500, lawful money of the United States of America, which said money was borrowed and received for the purpose and used by the Topeka Capital Company, in conducting its business at Topeka, Kan., and that said money was borrowed, received and used and notes made, executed and delivered therefor, by the Topeka Capital Company ; that said sum of money or no part thereof has ever been paid to plaintiff.”</p> <p>A trial was had before the court and a jury. When plaintiff rested, the defendant interposed its demurrer to plaintiff’s evidence, and also a motion for judgment thereon, which were overruled. The jury found the issues in favor of the plaintiff and returned a verdict against the defendant for $585.41. The defendant’s motion for a new trial was overruled. The defendant, as plaintiff in error, presents the record to this court for review and alleges error in the proceedings of the trial court.</p>

<p>Error from Wyandotte common pleas court; W. G. Holt, judge.</p>

Error from Wyandotte district court; Henry L. Alijen, judge. STATEMENT. This action was brought in the trial court by George Patry as plaintiff against the North American Railway Construction Company, a corporation, and the Metropolitan Street Railway Company, a corporation, for damages sustained on account of personal injuries. The defendants filed separate answers.

<p>1. Evidence — Contributory Negligence — Pleading. It is not error for the trial court to exclude evidence of contributory negligence where such defense is not pleaded. Contributory negligence is an affirmative defense and must be pleaded to be available.</p> <p>2. Negligence — Action by Husband — Measure of Damages. A husband may, in an action for damages resulting from injuries sustained by his wife by reason of the negligence and carelessness of another, in some cases, recover for the loss of his own time in at tendance and nursing his wife; the value of the husband’s time, however, while so engaged is determinable with reference to its value as a nurse; but he cannot recover, in addition, for the loss of his time, as such, its value in his ordinary occupation, nor for the reasonable value of his time which he may have lost from his business.</p>

<p>Appeal from Doniphan district court; ¥m. I. Stuart, judge.</p>

I. Stuart, judge. STATEMENT. This is an appeal from a judgment of conviction upon an information charging libel in four different counts, based upon four different publications in a newspaper called the Wathena Star, of which the defendant was editor and publisher.

<p>1. Res Judicata—Judgment of Dismissal—Subsequent Action. A judgment dismissing a case because the petition does not state facts sufficient to constitute a cause of action against the defendants, either on demurrer or motion thereto, is not a bar to a subsequent suit on the same cause of action wherein the omitted allegations are supplied.</p> <p>2. -Inconsistency—Estoppel. A party to a suit who obtains the dismissal thereof upon demurrer or motion, on the ground that material allegations are not in the petition, will not be heard to say in a subsequent suit on the same cause of action that the petition did contain them, for the purpose of claiming a bar by the judgment of dismissal.</p> <p>3. -Application of Buie—Parties and Privies. This rule applies to a purchaser of the subject-matter of the suit after the judgment of dismissal and who claims to have relied thereon as a bar to any other action.</p> <p>4. Lis Pendens—Pendency in Appellate Court—Supersedeas Bond. The provisions of section 81 of the code (Gen. Stat. 1897, ch. 95, § 81; Gen. Stat. 1899, § 4331) apply to cases pending in this court upon petition in error, so that, while the case is pending in this court, no third person can acquire an interest in the subject-matter of the suit as against the rights of the plaintiff thereto; nor is it requisite that a supersedeas bond be given by the plaintiff in the case in order to give force to the provisions of said section.</p>

<p>L Implied Promise — Maintenance of Insane Person. To charge the estate of an insane person with the expense of maintenance and for necessaries furnished, it is not requisite that there be an express promise to pay therefor, either by. the insane person or guardian.</p> <p>2. Depositions — Disqualification of Notary. A notary public is not disqualified to take depositions under the provisions of section 350 of the code (Gen. Stat. 1897, eh. 95, § 361; Gen. Stat. 1899, §1613) by reason of the fact alone that he is the bookkeeper of the plaintiff.</p> <p>3. Evidence — Laws of Another State. It is competent to prove ' the' laws of another state by the testimony of a person learned therein.</p>

<p>Executors and Administrators—Suit by Foreign Executor— Judgment. B., a resident of Pennsylvania, died at her home testate; her will was duly probated and the executor mentioned therein qualified. Said executor instituted an action in the district court of Brown county, Kansas, against a resident of said county, upon a promissory note given by him for borrowed money to the testate in her lifetime. Afterward an ancillary administrator with the will annexed was appointed by the probate court of Brown county, but said estate owed no debts and had no' property in said county except the claim sued on. The ancillary administrator claimed to be entitled to the proceeds of the note and prayed judgment therefor. Held, that judgment was properly rendered on the note in favor of the executor.</p>

Error from Pottawatomie district court; Wm. Thomson, judge. STATEMENT. The plaintiff in error, Rose L. Anthony, as plaintiff, brought her action against Peter Stauffer, David Starkweather, David Harsh, trustee, W. P. Ingram, and Charles R. Mott and Howard P. Anthony, as administrators of the estate of Cynthia Anthony, deceased, to quiet her title to certain real estate in Pottawatomie county. Service by publication only was had upon all of the defendants.

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p>

<p>1. Practice, District Court — Amended Petition— Continuance for Service. Where an amended petition was filed by leave of court, setting up additional claims for relief against defendants who had not answered the original petition, it was error to refuse to continue as to said defendants for additional service and to dismiss said action as to them.</p> <p>2. Limitation or Action — Assumption of Mortgage — Payment of Interest. Where a person purchases land and assumes the payment of a mortgage thereon, and pays interest on said mortgage debt for several years after the same becomes due, -said payments of interest prevent the running of the statute of limitations thereon.</p>

<p>Error from Wyandotte court of common pleas ; W. G. Holt, judge.</p>

<p>1, Cities — Street Improvements — Negligence — Continuing Damage. Where a city so,grades, paves, curbs and gutters its streets as to collect the surface-water from a large area and discharge it upon the property of one of its property holders, through a failure to provide suitable outlets for said water, the city has a legal right and it is its legal duty to terminate the cause of injury, and the damage thereby caused is a continuing damage.</p> <p>2. -Evidence—Proof of Damages. It is error to allow a plaintiff in such cases to prove his damages by evidence as to what the property cost him and as to its value some time before the injury, the rent he received before and after, and its value after the injury happened.</p>

<p>1. Damages — Tori—Allowance of Interest. In an action of tort, interest, as such, cannot be allowed by the jury upon the amount of damages awarded by them.</p> <p>2. -Gities — Change of Grade — Abutting Owner. The owner of land abutting upon a street in'a city of the first class is entitled to compensation for any injury to his property which he sustains over and above that sustained in common with other abutting owners or the public in general, resulting from a change in the established grade of the street.</p>

<p>Error from Wyandotte court of common pleas ; W. G. Holt, judge.</p>

<p>Error from Jefferson district court; Louis A. Myers, judge.</p>

<p>Error from Leavenworth district court; Louis A. Myers, judge.</p>

<p>Taxation — Invalid Tax Deed — Recovery of Illegal Taxes. Where a tax title is set aside, the holder of the tax deed is entitled to recover all the taxes paid by him, whether the same were legally assessed or not, since, if the owner desires to test the illegality of the taxes assessed against him, he must do so before a tax deed is issued on a sale therefor.</p>

<p>Error from Wyandotte court of common pleas; W. G. Holt, judge.</p>

<p>1. Action on Forthcoming Bond — Consideration—Pleading. In a suit upon a forthcoming bond, the law imports a consideration therefor and the validity of the execution under which the levy was made need not be pleaded or proven in the first instance.</p> <p>2. -Defense — Conduct of Sheriff. It is no defense in such. an action to prove that the sherifE agreed with the signers of such bond that it could be considered that he still had the constructive possession of the property levied on.</p>

<p>Taxation—Ejectment—Lien for Taxes. Where parties who already hold a tax-sale certificate upon certain real property purchase at sheriff’s sale upon foreclosure an undivided one-fourth interest therein, with the duty imposed of paying the delinquent taxes thereon, but, instead of redeeming the property from said tax sale, transfer the sale certificate to a third party, and in his name take out a tax deed and pay subsequent taxes thereon, and the title under said sheriff’s sale afterward fails by reason of prior liens, held, that, upon the failure to recover said property in a suit of ejectment by said tax-deed holder, he is entitled to the same liens for taxes paid as the original tax-certificate holders would have had if they had redeemed the property from the tax sale.</p>

<p>Error from Leavenworth district court; Louis A. Myers, judge.</p>

<p>Original proceeding in habeas corpus.</p>

<p>Error from Doniphan district court; R. M. Emery, judge.</p>

<p>Employer and Employee—Railroads—Negligence—Scope of Employment. Where a section foreman and his subordinate, in the employ of a railway company, are in the habit of carrying a gun upon a hand-car, without the knowledge, direction or consent of their superiors in the employ of such corporation, for the purpose of their own amusement in shooting rabbits, birds, and game, and through an accident or carelessness of the section foreman his assistant is injured by the discharge of such gun, in some manner unknown to the injured party, there can be no recovery against the railway company for such injury. An employer is not liable for the acts of his employee if such acts are not authorized by the former or done by the latter in the discharge of some duty or obligation to his superior.</p>

<p>1. Ejectment — Headings—Evidence — Settlement of Dispute. In an action to recover the possession of land, where the defendant’s answer is a general denial, it is not error to permit him to prove by parol evidence that, prior to the beginning of the suit, in order to settle the controversy between the parties respecting the land, they agreed upon a division thereof; that they made conveyances to each other by which they intended to convey the respective tracts according to the settlement; that they moved the division fence accordingly, and that each went into possession of the tract intended to be conveyed; notwithstanding the deeds do not convey the land by reason of an insufficient description.</p> <p>2. -Limitation of Action — Negotiations for Compromise. Where the statute of limitations governing actions to recover the possession of lands, being the fourth paragraph of section 10 of the code (Gen. Stat. 1897, ch. 95, § 10; Gen. Stat. 1899, § 4260), begins to run, it will not be suspended by the parties in interest entering into negotiations for a compromise.</p> <p>3.-Instructions — Imperfect Description in Deeds. In such action, it is not error for the court to refuse to instruct the jury that the imperfect deeds do not convey the legal title.</p> <p>•1. -Limitation of Action — Payment of Taxes. It was not error to refuse to instruct the jury that the defendant could not avail himself of the statute of limitations unless he had paid the taxes on the land during the running thereof.</p> <p>5. -Agreement for Settlement of Boundaries — Equitable Title. The court told the jury that if the parties had made a contract of settlement concerning their dispute about the land and its possession and had executed the same, and to carry the same into effect had made and delivered their respective deeds for portions of the land, they were bound by such agreement of settlement, notwithstanding the deeds did not sufficiently describe the land to convey the legal title; and that if they so found, their verdict should be for the defendant. Meld, not to be error. A defendant may, in such case, rely upon an equitable title to sustain his possession.</p>

<p>1. Landlord and Tenant — Fenees — Damages — Liability of Landlord. Where a landlord whose fenees are down refuses to rebuild the same or to permit his tenant to do so, he cannot insist, in an action for damages by the tenant, that his liability is to be limited to the amount required to rebuild the fence.</p> <p>2. Evidence — Transactions with Deceased — Executor. Section 322 of the code of civil procedure (Gen. Stat. 1897, ch. 95, §333-, Gen. Stat. 1899, §4585) does not prohibit a party to an action pending between himself and the executor of an estate of a deceased person from testifying as to any matter relevant to the issues therein except as to transactions or communications had personally with the deceased.</p> <p>3. -Joint Inability — Communications with Deceased. A person who is jointly liable upon the obligation sued on and has a separate suit pending to determine the extent thereof cannot testify in relation to conversations had by him with the deceased in relation to the matter in controversy.</p>

<p>Error from Wyandotte court of common pleas; W. G. Holt, judge.</p>

<p>1. Action on Bond — Appeal from Probate Court — Jurisdiction —Estoppel. Defendants in error appealed from an order of the probate court appointing plaintiff in error administrator of the estate of G. The case was heard upon the appeal in the district court and the judgment of the probate court sustained, against the contention of the plaintiff in error that the district court had no jurisdiction of the cause because no appeal was allowed in such cases. Held, that there was sufficient consideration for the appeal bond and that the defendants were estopped from denying its validity.</p> <p>2.-Measure of Damages — Costs. In an action upon such bond, the administrator cannot recover the value of his time and expense in attending to such cause upon appeal, nor for his counsel fees therein, nor for damages to the assets of the estate, but such recovery is limited to costs occasioned by the appeal and taxed therein.</p>

<p>Account Stated—Erroneous Admission of Evidence— Question for Court. A settlement of an account is conclusive between the parties until impeached for fraud, mistake, the omission of something, accident, or undue advantage taken; and where such settlement is evidenced wholly by correspondence, and there is no evidence to impeach it; its legal effect is a matter of law for the court and it is error to submit the same to the jury, for which error a new trial was properly granted in this case.</p>

<p>Error from Jackson district court; Marshall Gephart, judge.</p>

<p>1. Practice, District Court—Mandamus—Approval of Appeal Bond. An action of mandamus will not lie to compel an inferior court to approve an appeal bond that materially misdescribes a judgment from which the appeal is sought to be taken.</p> <p>2. -Defective Appeal Bond—Misdescription of Judgment. Where an appeal bond reciting a judgment materially different from the judgment actually rendered was presented to the trial court, and the party presenting the same was given a reasonable opportunity to file a bond properly describing the judgment therein, but refused to do so, mandamus will not lie to compel the granting of an appeal upon such defective bond.</p> <p>3. -Amendment of Bond—Jurisdiction of Appellate Court. The district court, upon the trial of the issues in the proceeding in mandamus, was without authority to permit the filing of a good and sufficient bond in that court as a basis for an order of mandamus in an action pending. It is only where an appeal has been perfected upon an imperfect or informal bond, and after the appellate court acquires jurisdiction, that an amended or sufficient bond may be substituted.</p>

<p>Line Insurance — Paid-up Policy— Surrender of Policy. Where a life-policy provided for a paid-up policy on surrender of the original policy, where the assured lived in Colorado and the insurance company was in New York, and he offered to surrender the policy by delivering the same to a bank in Colorado, but the company also required assured to execute assignments of the original policy on forms sent by them, his offer to surrender to the bank, which was not objected to by the company, was a substantial compliance with the policy, though he did not make the assignments as demanded.</p>

<p>1. Contracts—Assumption of Indebtedness—Sights of Parties. Where a mercantile company, in consideration of the surrender to it of large valuable property rights, upon a part of which it has a mortgage, assumes and agrees to pay the mercantile indebtedness of the mortgagor, the mercantile company cannot have and hold all of the benefits and property accruing to it in consequence of the transaction and repudiate its agreement to pay mercantile creditors on account of the alleged fraud of the assignor in Concealing the true amount of his indebtedness.</p> <p>2. - Fraud—Semedies. The mercantile company, upon discovering the fraud, had two remedies: it could have repudiated the whole transaction, restored the status quo, and been relieved of all of the obligations of the contract; or it could have affirmed the contract and borne the obligations imposed, and had recourse upon the mortgagor for damages sustained on account of his fraud and deceit.</p>

<p>Cities — Negligence—Defective FootwalJc. The city of Rosedale opened to travel twenty-nine feet in width of one of its streets, and in the remaining portion of the width of the street dug an open drain fifteen feet wide at the top, five feet deep, with sloping banks. Across this drain to an alley was placed a footwalk used by the inhabitants of the city. Held, that it was a question of fact for the jury to say whether it was negligence not to provide railings or barriers to said crossing.</p>

<p>1. Practice, District Court—Ejectment—Cotenancy—Receivership. In an action by a tenant in common to recover from a cotenant an undivided interest in land, the court has no power to appoint a receiver for other lands of the defendant not involved in the suit.</p> <p>2. -Judgment for Rents and Profits—Receivership after Judgment. Such other lands do not become involved in the suit so as to empower the court to appoint a receiver therefor after judgment by reason of an execution being issued on the judgment for rents and being levied on the other lands and such other lands being sold thereunder to the plaintiff.</p> <p>3. -Levy of Execution—Discharge of Receiver. After the plaintiff has recovered judgment in such action for her interest in the land and for her share of the rents, and after her interest in the land has been discharged from the custody of the receiver and she put in possession thereof, and after levy of execution upon other property of the defendant sufficient to satisfy the judgment, it is error for the court to refuse to discharge the defendant’s share of the property, upon his motion.</p>

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p>

<p>Error from Jewell district court; B. M. Pickler, judge.</p>

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. Plaintiff in error sued defendant in error to recover $210 for pasturing seventy head of steers.

<p>1. Real Estate—Void Deed—Insufficient Description. A deed which attempts to describe land by metes and bounds, without designating the section, township and range in which the real estate is situate, is void for uncertainty.</p> <p>2. -Parol Gift—Possession. A parol gift of land, unaccompanied by possession or improvements during the life of the donor, conveys no title.</p>

<p>Contracts — Illegal or Immoral Subject-matter■ — Intoxicating ■ Liquors. If a contract grows immediately out of or is connected with an illegal or immoral act, a court of justice will not enforce it.</p>

<p>Error from Wyandotte district court; H. L. Alden, judge.</p>

<p>Error from Wyandotte district court; H. L. Arden, judge.</p>

<p>Fraud — Action to Set Aside Deed — Evidence. Where a deed is made by one who is weak in body and mind, for a grossly inadequate consideration, to a person who sustains a parental relation to the grantor, proof of intimidation, misrepresentation and fraud leading toward the execution thereof is sufficient to justify a district court in setting said deed aside.</p>

Error from Wyandotte district court; H. L. Auden, judge. STATEMENT. Bbown, as receiver of the Citizens’ Bank of Kansas City, sued Sims for an injunction to restrain him from prosecuting certain suits as a creditor of the bank against certain stockholders of the bank.

<p>Error from Republic district court; F. W. Sturges, judge.</p>

Error from Lincoln district court; R. F. Thompson, judge. STATEMENT. • Carl Zigler, a minor, by his next friend, sued Bruce Middlekauff, to recover commissions upon a sale of cattle.

<p>Appeal from Lincoln district court; R. F. Thompson, judge.</p>

<p>Original proceeding in habeas corpus.</p>

Original proceeding in habeas corpus. STATEMENT. The administrator of the estate of one .Hiatt, deceased, filed a complaint in the probate court of Cloud county charging that the petitioner herein had concealed, embezzled and conveyed away $1800 of the money and divers articles of personal property of the estate of said decedent. A citation was issued and the petitioner brought before the court and examined.

<p>1. Criminal Law—Defects in Information—Waiver. Where a defendant in a misdemeanor case voluntarily enters into a recognizance for his appearance at a subsequent term, without making any objection to the sufficiency of the warrant, the sufficiency of the information, or the verification thereof, he waives any supposed defects in the verification, or irregularity, if any, in the issuance of the warrant.</p> <p>2, -Refusal of Defendant to Testify—Instructions. Where the defendant neglects or refuses to testify, it is not error for the court to refuse to instruct the jury: “The fact that the defendant did not testify in this cause should not be considered by the jury to affect his innocence or guilt.”</p> <p>3. - Inapplicable Instructions. It is not error for the court to refuse to give an instruction, at the request of the defendant, which correctly states the law, where such instruction is not applicable to the testimony offered upon the trial.</p> <p>4. - Intoxicating Liquors — Proof of Permit. In a prosecution under the prohibitory liquor law, it is not necessary that the prosecution in the first instance prove that defendant did not have a permit to sell intoxicating liquors for the excepted purposes.</p> <p>5. -Nuisance — Instructions. It is error for a court to give an instruction which correctly states the law applicable to a nuisance, where such instruction permits the jury to find the defendant guilty of maintaining a nuisance by means other than those embodied in the complaint.</p>

<p>1. School Lands — Petition to Purchase — Appeal Bond. In a proceeding instituted in the probate court, upon petition by a settler to purchase school lands, where the county superintendent appeals to the district court, no appeal or cost bond is required to' perfect such appeal.</p> <p>2. -Dismissal of Appeal by County Attorney. Nor can the county attorney arbitrarily dismiss such appeal over the objection of the county superintendent.</p>

<p>Error from Rawlins district court; A. C. T. Geiger, judge.</p>

<p>Practice, District Court—Dormant Judgment—Revivor. An order of sale issued after the death of the plaintiff in a foreclosure proceeding where no revivor is had is void, and a purchaser thereunder takes no title to the land sold.</p>

<p>Error iron Norton district court; A. C. T. Geiger, judge.</p>

<p>Error from Shawnee district court; A. H. Vance, judge pro tem.</p>

<p>Void Tax Deed— Separate Sales. A tax deed for several separate tracts of land, bid off by the county treasurer for the county at. a tax sale, to be valid upon its face must show that the sale of each tract failed for want of a bidder who would pay the amount due thereon.</p>

<p>Error from Decatur district court; A. C. T. Geiger, judge.</p>

<p>Limitation op Action — Infancy — Removal of Disability. Where an infant becomes possessed of a promissory note before maturity, such infant may prosecute an action for the recovery of the amount due thereon at any time prior to the expiration of one year from the date of the removal of the disability of infancy.</p>

<p>Error from Ellis district court; Lee Monroe, judge.</p>

<p>Homestead—Mortgage—Extension—Wife’s Consent. The husband, without the consent of the wife, cannot, by contract with the mortgagee, extend the duration of a mortgage lien upon their homestead beyond its original term.</p>

<p>Error from Russell district court; Lee Monroe, judge.</p>

<p>Error from Allen district court; L. Stillwell, judge.</p>

<p>Error from Montgomery district court; A. H. Skidmore, judge.</p>

<p>Appeal from Allen district court; L. Stillwell, judge.</p>

<p>Original proceeding in habeas corpus.</p>

<p>1. Intoxicating Liquors—Instructions. The instructions complained of set forth. Held, that they fully state the law.</p> <p>2. -Information—Evidence—Nuisance. Where a defendant is charged in three counts, the first and second for the unlawful selling of intoxicating liquor, and the third for maintaining a nuisance, held, that the evidence introduced under the first and second counts was proper for the consideration of the jury on the third (or nuisance) count.</p>

<p>Negligence — Liability of Carrier — Evidence. The evidence in this case does not show that the loss occurred by reason of the negligence of the plaintiff in error.</p>

<p>1. Practice, Justice Court — Appeal—Judgment. When a defendant before a justice of the peace files a general denial, and no judgment is rendered against him, he has nothing to appeal from.</p> <p>2. Practice, District Court — Referee—Findings. Where a litigant fails to ask the court to refer the report of a referee back for additional findings, we cannot review the ruling of the referee in refusing to make additional findings.'</p> <p>3. -Report of Referee — Motion for New Trial. Where the district court overrules a motion to set aside the report of a referee “after argument, and being fully advised in the premises,” and afterward overrules a motion to set aside the report of the referee and the confirmation thereof and to grant a new trial, “without argument or consideration,” held, not error.</p>

<p>Error from Bourbon district court; J. S. West, judge.</p>

<p>Error from Linn district court; J. S. West, judge.</p>

<p>Appeal from Labette district court; A. H. Skid-more, judge.</p>

<p>Error from Crawford district court; Walter L. Simons, judge.</p>

<p>Error from Franklin district court; A. W. Benson, judge.</p>

<p>Equity — Reformation of Contract — Specific Performance. Where, in an action for the specific performance of a contract relating to land, it clearly appears that the plaintiff has performed all the conditions to be performed by him under such agreement, and the defendant, although gaining possession and control of the land involved by virtue of such agreement, violates it and seeks to set up a title adverse to plaintiff’s rights by abuse of his power under the agreement and of the trust created thereby, and to defeat the plaintiff’s rights in the premises, held, that a proper case is thus presented for relief in equity and for the specific performance of the agreement.</p>

<p>1. Instructions — Special Findings — Duty of Jury. Where special questions are submitted to the jury, it is error for the court to charge the jury that their answers to such questions must be consistent with each other, otherwise their general verdict will not stand. The sole duty of the jury is to find the facts accord ing to the evidence, and to answer the special questions truthfully, without reference to the effect on the general verdict. (Dry-goods Co. v. Kahn, 53 Kan. 274, 36-Pac. 327.)</p> <p>2. -Prejudicial Effect — Review. “It is the right of a party to have his ease submitted to the consideration of the jury under proper instructions, and when incorrect instructions are shown to have been given, a reviewing court will not undertake to say that they did not operate to the injury of the party against whom they were so given, unless such fact is made clearly to appear.” (Hall v. Jenness, 6 Kan. 361; Sheppard v. Pratt, 16 id. 212.)</p>

<p>Error from Miami district court; John T. Burris, judge.</p>

<p>Error from Woodson district court; L. Stillwell, judge.</p>

<p>Error from Cherokee district court; W. L. Simons, judge.</p>

<p>Practice, District Court — Allegations of Petition — Statement of Counsel. The court having correctly decided that the petition, as modified by the oral statements and admissions of the plaintiff’s counsel, did not state a cause of action, held, that no question concerning the sufficiency of the petition as it originally stood can properly be considered in proceedings to review such decision.</p>

<p>1. Jurisdiction — Amount Claimed — Interest. The amount claimed by plaintiff determines the question of jurisdiction, and interest, if demanded, is part of plaintiff’s claim.</p> <p>2. - Time of Objection — Waiver. Want of jurisdiction of the subject-matter cannot be waived by any act of the parties, and the question will be considered by an appellate court, though not raised in the court below.</p>

<p>Error from Labette district court; A. H. Skidmore, judge.</p>

<p>Error from Elk district court; C. W. Shinn, judge.</p>

<p>Inconsistent Findings—Natural Watercourse. The special findings set forth, and field to be inconsistent with the general verdict, because they show that a natural watercourse did not in fact exist.</p>

<p>Error from Osage district court; Wm. Thomson, judge.</p>

<p>1. Practice, District Court — Refusal to Give Instructions — Exceptions, An exception to the court’s refusal to give seven instructions asked for by the defendants, reading, “The foregoing instructions refused, and excepted to by the defendant,” is held to be insufficient.</p> <p>2. -Exclusion of Evidence — Immaterial Error. An alleged error in sustaining an objection to a question asked by the defendant held not material, since it appears that the witness had already testified favorably to the defendant’s theory of the case' respecting the matter inquired about in the question to which the objection was sustained.</p>

<p>Practice, Courts of Appeals — Proceedings to Reverse — Necessary Parties. “The rule is well settled that all persons against whom a joint judgment has been rendered must be made parties to a proceeding to reverse such judgment, and that a failure to join any of them either as plaintiffs or defendants is ground for dismissal of the case.” (Manufacturing Co. v. Richardson, 57 Kan. 662, 47 Pac. 537.)</p>

<p>Evidence — Res Judicata. The evidence complained of was properly admitted and the evidence sustains the judgment rendered.</p>

<p>Error from Crawford district court; W. L. Simons, judge.</p>

<p>Error from Elk district court; A. H. Skidmore, judge.</p>

<p>Error from Chautauqua district court; C.W. Shinn, judge.</p>

<p>Error from Franklin district court; S. A. Riggs, judge.</p>

<p>1. Cities-—Defective Sidewalks—Petition. The petition examined; held, that the facts stated are sufficient to constitute a cause of action.</p> <p>2. - Evidence—Case Followed. The conclusions of this court in the case of Ottawa v. Black, ante, p. 439, 61 Pac. 985, relating to admissibility of evidence to show presentation of claim to city council, are adopted in this case.</p> <p>3. -Repairs on Sidewalk—Exclusion of Evidence. Defendant offered testimony to show that W., who was employed by the city to repair sidewalks, was a competent workman. W. had testified that he had made certain repairs on the sidewalk upon which plaintiff claimed to have been injured. He did not testify ■ as an expert and his reputation as a workman had not been attacked. Held, that the court did not err in excluding each testimony.</p> <p>4. -Instructions Examined. The instructions complained of examined; held, that, construed in connection with the rest of the court’s charge, they fairly state the law.</p>

<p>Action on Notes — Question of Fact. The evidence examined, and held sufficient to uphold the'judgment of the trial court.</p>

<p>Criminal Law — Amendment of Judgment — Additional Penalty. A journal entry of judgment in a criminal case cannot be amended" after the sentence as stated in such journal entry has been fully served and the fine and costs paid, by adding thereto a penalty for failure to give the good-behavior bond provided for in the stat- - utes.</p>

<p>Appeal from Cherokee district court; A. H. Skid-more, judge.</p>

<p>Error from Bourbon district court; Walter L. Simons, judge.</p>

<p>Error from Bourbon district court; Walter L. Simons, judge.</p>

<p>Distribution or Funds — Attorneys’ Fees — Priorities. The order of the trial court, giving priority in payment to attorneys’ fees over the claim of a pledgee of corporate stock out of funds arising from the sale of all of the property of a corporation, in an action for dissolution thereof, held to be sustained by the pleadings and the evidence.</p>

<p>1. Negligence — Allegations of Petition — Instructions. An instruction which authorized the jury to find for the plaintiff upon a ground of negligence not alleged in the petition held erroneous.</p> <p>2. - Value of Life — Evidence—Nominal Damages. In the absence of evidence tending to show the pecuniary value of a life terminated by the negligent act of another, and in the absence of proven facts which might furnish the elements entering into a just estimate of the pecuniary value of the life so lost, a verdict in favor of the administrator of the estate of the deceased person for more than nominal damages cannot be sustained.</p>

<p>Error from Franklin district court; C. A. Smart, judge.</p>

<p>Error from Wilson district court; L. Stillwell, judge.</p>

<p>1. Practice, District Court— Variance—Amendment. “Where there is a variance between the allegations of a bill of particulars and the facts proved and specifically found by the jury on the trial, yet if it be a case where an amendment to a bill of particulars ought to be allowed, to conform it to the facts proved and found, the judgment in favor of the plaintiff will not be reversed on account of the variance, if no substantial rights of the defendant have been prejudiced.” (Jung v. Liebert, 44 Kan. 304, 24 Pac. 474.)</p> <p>2. Real Estate—Contract of Sale—Default. Where, by the terms of a contract for the sale and conveyance of land, the purchase-price is made payable in instalments, and the conveyance is to be made upon the payment of the last instalment, and where default is made by the purchaser in the payment of instalments and no action is taken by the vendor, either to enforce or rescind the contract, until after the maturity of the last instalment, the obligations of the parties to the contract are mutual and dependent, and the vendor cannot put the purchaser in default save by an offer to convey the land.</p>

<p>1. Practice, District Court — Demurrer— Character of Evidence. Where the evidence demurred to is such that the jury might reasonably have drawn therefrom a conclusion favorable to the party introducing such evidence, it is error to sustain the demurrer.</p> <p>2. -Ruling on Demurrer — Presentment for Review. A ruling of the trial court sustaining a demurrer to the evidence is presented for review by a motion for a new trial, duly filed, which alleges “that the decision of the court is not sustained by sufficient evidence and is contrary to law,” although no other exception to the ruling appears in the record.</p>

<p>Error from Labette district court; A. H. Skid-more, judge.</p>

<p>1. Defective Highway—Liability of Township—Question for Jury. Whether a highway twelve feet in width, and lying on a hill slope, in a deep cut, and between ditches from three to four feet in width and from one and a half to two and a half feet in depth, is a defective highway within the meaning of the statute making counties and townships liable in damages to persons injured by reason of defective highways and bridges, held to be a question for the jury.</p> <p>2. -Injury to Traveler—Proximate Cause. When two-causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate, the one being a culpable defect in the highway and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect.</p>

<p>Railroad-crossings — Duty of Traveler — Negligence. “Where a traveler on a country highway comes to a railway-crossing with which he is familiar, and knows that a train is about due at that point and is liable to pass at any time, it becomes his duty, as an act of ordinary prudence, to look and listen for its approach; and if the sense of sight be unavailing because of obstructions to the view, and the sense of hearing be unavailing because of preventing noises, it becomes his duty, as a further act of ordinary prudence, to'stop in order to better enable him to look and listen before entering upon the crossing; and in such a case, if by stopping he can see or hear the approaching train, but fails to do so, his negligence in such respect should be declared as a matter of law, and not left to the determination of the jury as a question of fact.” (Railroad Go. v. Willey, 60 Kan. 819, 58 Pac. 472.)</p>

<p>Pleading — Replevin—Chattel Mortgage — Description of Property. Where the petition in a replevin action brought by the mortgagee of chattels alleged that the mortgagors resided in Cowley county, Kansas, that the mortgaged property was kept in that county, and that the mortgage was duly filed with the register of deeds of that county, and the mortgage, which was made a part of the petition, contained a statement that the same was all of the property of that kind owned by the mortgagors, and a provision that the mortgagee might take possession thereof upon an attempt by the mortgagors to remove the same from Cowley county, held, that the petition stated a cause of action and that the description of the mortgaged property was sufficient. (Crisfteld v. Neal, 36 Kan. 278, 13 Pac. 272.)</p>

<p>1. Corporations — Knowledge of Officers — Effect on Corporation. The knowledge acquired by an officer of a corporation while acting for himself in the interest of his own separate undertaking is not imputable to the corporation, and it will not be bound by the knowledge or the acts of its officer under such circumstances.</p> <p>2. Instructions — Pleadings and Evidence. An instruction not warranted by either the pleadings or the evidence held erroneous.</p>

<p>Error from Greenwood district court; C. W. Shinn, judge.</p>

<p>Error from Sedgwick district court; D. M. Dale, judge.</p>

<p>Error from Barber district court; G-. W. McKay, judge.</p>

<p>Libel — List of Debtors — Publication. Where defendant was a member of an organization known as the “Merchants’ Protective Association,” which published and distributed lists to members of names of persons unworthy of credit, and among them that of plaintiff, who was not indebted at the time to said defendant, as alleged on the list, the defendant will be held liable in damages.</p>

<p>Error from Lyon district court; W. A. Randolph, judge.</p>

<p>Error from Reno district court; M. P. Simpson, judge.</p>

<p>Error from Reno district court; M. P. Simpson, judge.</p>

<p>Justices oe the Peace — Jurisdiction—Action by Surety. A justice of the peace has jurisdiction of an action brought under the provisions of section 529 of the civil code (Gen. Stat. 1897, ch. 95, § 549; Gen. Stat. 1899, § 4820) by the surety, on a matured and unpaid note against the principal, to compel payment of the obligation, where the amount involved is less than $300.</p>

<p>Error from Butler district court; O. W. Shinn, judge.</p>

<p>Taxation — Situs of Personal Property — Assessment. Under the provisions of section 1 of chapter 248, Laws of 1899, which provides that ‘“When any personal property shall be located in any county in this state after the 1st day of March of any year which shall acquire an actual situs therein before the 1st day of September, such property is taxable therein for that year and shall be assessed and placed on the tax-roll, and the tax collected as provided by this act,” it is held, that cattle brought into this state from the state of Texas in May, 1899, by the plaintiff, a resi. dent of Greenwood county, and which were thereafter assessed by the assessor of the township in which they were located, were taxable for the year 1899.</p>

<p>Sai.es — Consideration — Insolvency of Vendor — Garnishment. Where the greater part of the consideration paid for the transfer of a stock of goods by an insolvent firm was thó satisfaction of indebtedness due from the deceased father of a member of the firm, and where the firm itself had not become as a matter of law liable for the payment of such indebtedness, held, that the purchaser of the goods was liable in garnishment proceedings to general creditors of such firm to the extent of the amount of such indebtedness.</p>