Volume 110 — Kansas Reports

<p>Appeal frofti Rooks district court; Charles I. Sparks, judge.</p>

<p>Appeal from Douglas district' court; Charles A. Smart, judge.</p>

<p>Appeal from Douglas district court; Charles A. Smart, judge.</p>

<p>Appeal from Comanche district court; Littleton M. Day, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgment of this Court Procured by Fraud — May be Set Aside. The supreme court has both inherent and statutory power to prescribe a rule of procedure whereby an order of the supreme court reversing a judgment which was procured b3' the fraud of a litigant may be set aside and corrected.</p> <p>2. Judgment of Reversal — Procured by Fraud oj Appellant — Motion to Set Aside — Procedure to Bring Appellant into Court. The filing of a motion to set aside an order of the supreme court reversing a judgment procured by the fraud of an appellant, a copy of which motion was personally served upon him, and due notice given him of the time set for the hearing of such motion, is a proper and sufficient procedure to bring the appellant into court and to challenge the attention of the court thereto.</p> <p>3. Same — Motion to Set Aside Judgment — A Direct Attack Upon Such Judgment. A motion, to Bet aside an order of the supreme court reversing a judgment, on a sufficient showing that the order was procured by the fraud of the .appellant, is a direct attack upon the order of reversal.</p> <p>4. Same — Devisees Named in Will of Deceased Appellee — Proper Parties to Attack an Order of Reversal Procured by Appellant’s Fraud. Devisees under an appellee’s will, and the successors to her estate, and her executor, may properly present a motion -in the supreme court calling its attention to alleged fraudulent conduct of the appellant, whereby the court was induced to order a reversal of the judgment of the trial court.</p> <p>5. Divorce; — Decree—Appeal—Death of Appellee — Action for Divorce Abated —Rights of Property Not Determined. The death of 'a party to an action for a divorce, pending its appeal, abates the action or appeal so far as it affects the marital status, but it does not necessarily abate the action or appeal so far as property rights are concerned.</p> <p>6. Divorce — Appeal — Death of Appellee — Order of Reversal Procured by Fraud of Appellant — Parties to Motion to Set Aside Order of Reversal. Where a motion to set aside an order reversing a judgment alleged the following facts: That appellee obtained a judgment for divorce and-for all the property she owned at the time of her marriage; that appellant brought the cause to the supreme court for review; that abstracts and briefs for both parties were filed and a date set for the hearing of the appeal; that meantime appellee became insane and was residing in a private hospital; that appellant lured her from the hospital and induced her to sign a stipulation that the supreme court should reverse the judgment, and induced her to destroy her will; that appellant filed the stipulation in the supreme court, and an order of reversal was entered pursuant thereto; that shortly thereafter the appellee died, — it is held, that the devisees of the destroyed but reestablished will and the lawful successors to the appellee’s property, and her executor, may properly present such motion to set aside the order reversing the judgment; and the facts alleged require that their truth be ascertained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale of Threshing Outfit — Written Contract — Cannot Be Varied by Parol Evidence. The familiar rule, that a written contract is supposed to embody all prior negotiations and agreements and cannot be enlarged, varied or contradicted by parol testimony, is applied to a contract for the purchase of farm machinery.</p> <p>2. Same — Unambiguous Contract — Construction for the Court and Not for the Jury. In an action to recover damages for the failure of the defendant to accept a threshing outfit purchased under a written contract, defense was made on the ground that the contract provided that the machinery was to be shipped from the factory with the feeder attached to ' the separator and with the tender attached to the engine and that these conditions were not complied with. The court, without holding the contract ambiguous and without any evidence of extrinsic facts tending to explain the meaning of any of the terms, submitted the contract to the jury for their construction. Held, that the question was one of law for the court to determine, and under the -facts of the' case it was error to submit the question to the jury.</p> <p>3. Same — Substantial Compliance with Contract by Vendor. It being undisputed that the stacker and self-feeder were in the shipment when it arrived, and could easily have been attached after being removed from the car; that the plaintiff offered to do this provided defendant would pay the freight, as the contract required of him, held, under any construction of the contract, there was a substantial compliance by plaintiff.</p> <p>4. Same — No Meritorious Defense Shown. No meritorious defense was stated in the answer or established by the testimony.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Gift of Land for Schoolhouse Site — Land Accepted — Nature oj Title oj School District to the Land. Findings of fact that an owner of land offered a schoolhouse site to a school district and that the offer was accepted by the district were supported by the evidence, and a further finding limiting the right of the district to that of occupancy of the land for school purposes was not inconsistent with the former findings.</p> <p>2. Quieting Title — Admission of Certain Evidence Not Prejudicial. The admission of parol evidence concerning the terms of an offer of land to a school district for a schoolhouse site was not prejudicial even if the evidence was inadmissible.</p> <p>3. Same — Rulings Relating to Findings Not Erroneous. No error was committed in refusing to set aside findings of fact and conclusions of law or in refusing-to make other findings of fact and conclusions of law.</p> <p>4. Same — School District Not Authorized to Lease Any Portion'of the Site for Commercial Purposes. An offer to give to a school district land for a schoolhouse site and an acceptance thereof by the school district followed by undisputed occupancy for school purposes for more than thirty years does not convey to the school district the right to give an oil and gas lease to a third person so as to permit him to take from the land oil or gas for commercial purposes.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Homestead — Occupied by Widow — Not Subject to Partition — Rents and Profits Belong to Widow. Devisees of a part of a testator’s homestead who are not members of the testator’s family cannot demand partition nor are they entitled to any share of the rents and profits of the homestead so long as the testator’s widow who claimed her rights under the law rather than under the will chooses to occupy the premises as a homestead and does nothing to terminate her right to such occupancy — following Breen v. Breen, 102 Kan. 766, 173 Pac. 2.</p> <p>2. Will — Devise Upon Conditions — Conditions Must Be Performed. A devise of land upon condition that the devisee shall erect a tombstone at the grave of the testator passes title to the devisee subject to defeasance for nonperformance of the condition subsequent; and such condition must be performed within a reasonable time.</p> <p>3. Pleadings — Petition by Devisees Claiming Share of Personalty Not Demurrable. A petition by plaintiff devisees claiming seven-sixteenths of a testator's personal estate against the testator’s widow who withheld it from them is not demurrable because another devisee to whom one-sixteenth of the personalty was devised was not made a party to the action.</p> <p>4. Wills — Personal Property. Not Needed to Pay Debts Subject to Division as Per Devises. Where undivided personal property is devised to plaintiffs and the same is withheld by the testator’s widow, together with her own share thereof, and the property is not required to satisfy charges upon the testator’s estate, the plaintiffs may maintain an action against the widow for their share of the property and for division or distribution thereof, and it is immaterial whether the administrator is made a party to such action or not.</p> <p>5. Pleading and Practice — Demurrers—-Misjoinder. Where certain causes of action are ruled out on demurrer thereto, and only one cause of action remains, the latter is not necessarily defective for misjoinder with the causes which had already succumbed to the demurrer.</p> <p>6. Action to Recover Personal Property — Delay Caused by Defendant— Defendant May Not Invoke Statute of Limitations. Where a defendant provoked successive actions to resist the probate of her husband’s will, and to contest its validity, in which actions she was defeated, she cannot invoke the statute of limitations against the beneficiaries under the will in an action by them promptly begun against her after the conclusion of such litigation for their share of the property of the testator withheld by her during the pendency of the earlier litigation.</p>

<p>Appeal from Edwards district court; Albert S. Fotjlks, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Information Filed by ‘‘Acting County Attorney” — When Sufficient to Sustain a Conviction. The proceedings examined, and held, an information for felony which was filed by a person other than the county attorney, and which was not challenged in the district court, was sufficient to sustain a conviction, either as the act of a de facto prosecuting attorney, or as the act of a deputy county attorney.</p> <p>2. Same — Information—Larceny of Money — Description of Stolen Property — ■ Evidence. The information charged larceny of three fifty-dollar bills, lawful money of the United States, a more particular description of which was . unknown and could not be given. There was evidence that the bills had been paid and received as cash compensation for services rendered in a real-estate transaction. They were frequently referred to as money by persons who saw them, and they were sufficiently proved to be paper currency, circulating from hand to hand as measure of value and medium of exchange. Held, the evidence was sufficient to sustain the charge.</p> <p>3. Larceny — Value of “Three Fifty-dollar Bills.” It was not necessary to call witnesses to prove the value of the bills.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Agency — Evidence of Employment — Services Accepted. The evidence is held sufficient to support a finding that a firm of broom corn buyers invited and accepted the services of a scout, agent or broker, and thereby became his employers and were liable to him for a commission.</p> <p>2. Same — Competent Evidence to Show Employment. Evidence that an agent of the defendants asked the plaintiff to accept less than the usual commission is held to have been admissible as tending to show it was understood that the plaintiff had been employed by the defendants.</p> <p>3. Same — Action for Commissions — Theory on Which Case Was Tried. It is held that the case was tried throughout on the theory that in order for the plaintiff to recover it was necessary for him to prove that he had been employed by the defendants, and that references to á trade custom related to the amount of commission to be paid in the absence of an agreement on that point, and the services required to earn such commission.</p> <p>4. Same — Plaintiff Not a Commission Merchant. It is held that the plaintiff in the transaction upon which he sued was not acting as a commission merchant, and therefore the want of a license as such was not a bar to his recovery.</p> <p>5. Same — Federal Tax on Commercial Brokers — Effect of Nonpayment of Federal Tax. Under a Federal statute imposing a tax on commercial brokers and penalizing but not otherwise forbidding the engaging in the business without paying it, the nonpayment of such tax is not a bar to the recovery of compensation for services rendered in the course of that calling while such delinquency existed, and this regardless of whether or not a decision to the contrary would result from following the rule of an earlier case based on a Kansas statute, which has been adhered to on the principle of stare decisis.</p>

<p>Appeal from Cheyenne district court; W. E. Mahin, judge pro tem.</p>

<p>Appeal from Leavenworth district court; James H. Wenborff, judge.</p>

<p>Appeal from Harper district court; George L. Hay, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Rights of Former Stockholders to Sue Officers of Corporation for Illegal Appropriation of Corporate Funds. Where stockholders of a corporation have parted with their stock, they cannot thereafter maintain an action against the officers of the company as individuals, for an alleged illegal appropriation of corporate funds to pay the individual obligation of the officers of the company, where it appears that such stockholders had knowledge of the alleged illegal appropriation before they sold their stock.</p> <p>2. Same — Corporation a Necessary Party to Action. In an action by stockholders to compel officers of a corporation to make restitution of corporate funds unlawfully appropriated to the private use of the officers of the corporation, the corporation itself is a necessary party.</p> <p>3. Same — Nonstockholders May Not Question Validity of Corporate Acts. A private individual who is not a stockholder of a corporation or whb has ceased to be such stockholder cannot question the validity of the acts of the corporation.</p>

<p>Appeals from Clay district court; Fred R. Smith, judge.</p>

<p>Appeal from Finney district court; Charles E. Vance, judge..</p>

<p>SYLLABUS BY THE COURT.</p> <p>Collision op Motor Vehicles — Injuries—Trial—New Trial Properly Granted. ‘ The proceedings examined, and held, findings of fact were set aside by an order granting a new trial, made in proper exercise of the district court’s authority.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Trial — Demurrer to Evidence• — Court Cannot Weigh Conflicting Evidence. The rule that on a demurrer to the evidence the- court cari take into consideration only those facts and inferences of fact which are favorable to the other party and cann'ot consider thé evidence of the demurring party which tends to-break .down the case of the party resisting the demurrer, is applied to the evidence offered in support of a cross-petition, and held,' that it was error to sustain the plaintiff’s demurrer. (Can Co. v. Boss, 72 Kan. 669, 83 Pac. 616; Kerr v. Kerr, 85 Kan. 460, 116 Pac. 880.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Thrashing Outfit — Evidence of Ownership — Finding. The testimony justified the finding that the plaintiff was the owner of the thrashing outfit involved herein.</p> <p>2. Chattel Mortgage — Refusal of Tender of Payment — Liability for Damages. The holder of a chattel mortgage having refused the tender of the plaintiff to pay its note and mortgage in full, and having sold the mortgaged property, thereby became liable to her for at least the difference between the value of the mortgaged property and its debt.</p> <p>3. Same — Instructions Not Misleading. The instructions taken together, held not to have misled or misdirected the jury.</p>

<p>Appeal from Montgomery district court; Joseph W. Holdren, judge.</p>

<p>Appeal from Sherman district court; Charles I. Sparks, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract to Operate a Ranch — Action for Settlement — Error in Conclusion of Law-Judgment Directed on Findings of Fact. Confession of error in a conclusion of law stated by the district court approved, and the cause remanded with direction to enter a 'correct judgment on findings of fact to which no substantial objection is interposed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Collision Between Motor Vehicles — Negligence Sufficiently Charged in Petition. Where a petition has not been attacked by motion its allegation that the defendant’s automobile was driven in a reckless and careless and negligent manner in violation of an ordinance designated by number and date of publication is sufficient to sustain proof of any manner of driv- . ing forbidden by such ordinance, at least where no prejudice to the defendant is shown to have been occasioned by such generality of statement.</p> <p>2. Same — Ordinance Relating to Right of Way of Vehicles at Street Intersections. An ordinance giving'the right of way at a street intersection to the driver of the vehicle approaching from the right supersedes the old rule favoring whichever reaches the intersection in advance of the other.</p> <p>3. Same — Automobile Collision at Street Intersection — Requested Instruction Properly Refused. In a case growing out of an automobile collision at a street intersection where the defendant’s progress on the right side of the street was stopped by a standing street car, an instruction to the effect that he had an absolute right to proceed on the left side, using due caution, is held to have been properly refused where the jury were told that no recovery could be had on account of any violation of .the law of the road which was not the proximate cause of the plaintiff’s injury.</p> <p>4. Same — No “Quotient Verdict.” The rule applied that a verdict is not' vitiated by the fact that it is the same in amount as the average of the estimates of the individual jurors, where no agreement on the subject had been made in advance of the markings.</p>

<p>Appeal from Wyandotte district court, division No. 3; William H. Mc-Camish, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action — To Cancel and Set Aside Contract on Ground of Fraud — Demurrer to Evidence Properly Overruled. In an action to cancel and set aside, on the ground of fraud, a contract made for the distribution of the estate of a deceased person and to cancel deeds made in pursuance of that contract, it is held that the plaintiff’s evidence was sufficient to establish fraud and undue influence and to prove a cause of action in favor of the plaintiff and that the demurrer to the .plaintiff’s evidence was properly overruled.</p> <p>2. Same — Petition States Cause of Action. In such an action, the defendant should not be permitted to reap the benefits of his fraud or undue influence where acts which would otherwise amount to a ratification of the contract were performed by the plaintiff under the undue influence of the defendant; and, where the plaintiff conveyed land given to her under the contract but in her petition offers to convey all the property she had received as the court might direct, she is not precluded from maintaining her action to cancel the contract although she might be compelled to account for the proceeds arising from the land sold.</p> <p>3. Same — Evidence Proved Cause of Action in Plaintiff’s Favor — No Error in Refusing Further Findings. This cause was submitted on the plaintiff’s evidence which proved a cause of action in her favor; there was no conflicting evidence; a demurrer to the evidence was overruled; and findings of fact were made which did not defeat the plaintiff’s right to recover. Held, that no error was committed by refusing to make other findings requested by the defendant.</p> <p>4. Same — Petition Stated Cause of Action in Plaintiff’s Favor as Administratrix. The petition stated a cause of action in favor of- the plaintiff as administratrix, and there was evidence sufficient to prove that cause of action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Real-estate Agent — Commissions—Express Contract Proven. Where the petition in an action for a real-estate agent’s commission declared upon an implied contract that the defendant vendor should pay the usual and customary commission for services in effecting a sale of real property, and the answer denied liability on an implied contract but pleaded that the agent’s services were to be compensated under a special contract for the amount of which defendant offered to confess judgment, and the plaintiff’s reply, while denying the matters set out in the answer, alleged that even if such matters were trae the plaintiff was entitled to interest on the sum confessed to be due, it is held that the pleadings construed together properly raised an issue on the question whether defendant should be bound upon the implied contract set up by plaintiff or the express contract alleged by defendant; and held, that under the pleadings and the evidence a recovery against defendant on an express contract was correct.</p> <p>2. Same — New Trial Properly Denied. Errors in instructions, denying a new trial, and in rendering judgment for plaintiff, examined and not sustained.</p>

<p>Appeal from Graham district court; Charles I. Sparks, judge.</p>

<p>Appeal from Republic district court; Fred R. Smith, judge pro tern.</p>

<p>Appeal from Butler district court; Allison T. Ayres, judge.</p>

<p>syllabus by the court.</p> <p>1. Will — Bequest to the Kansas Soldiers’ Home — Home a Charitable Institution — Valid Bequest. In the residuary clause of his will, a testator directed that the residue of his property, real and personal, should go to the Kansas State Soldiers’ Home at Fort Dodge, Kansas. Held:</p> <p>(a) That the institution is a charitable one within the meaning of the term as applied to the construction of conveyances by deed, or gifts and devises by will.</p> <p>(b) Notwithstanding the home is subject to be changed and its scope and purpose enlarged as the legislature in its wisdom may deem advisable, it is none the less a permanent institution and capable of taking property by gift or devise.</p> <p>(c) Although the bequest defines no specific purpose for which the property devised shall be devoted, the designation and limitation of the uses to which the property may be applied is found in the name and nature of the devisee.</p>

<p>OPINION ON REHEARING.</p> <p>Appeal from Saline district court; Dallas Grover, judge.</p>

<p>Appeal from Sedgwick district court, division No. 3; Jesse D. Wall, judge.</p>

<p>Appeal from Ford district court; Littleton M. Day, judge.</p>

<p>Appeal from Trego district court; Isaac T. Purcell, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. State Board of Embalming — Authority to Promulgate and Enforce Rules Regulating the Embalming of Human Bodies — Power to Revoke Embalmer’s License. The statute (Gen. Stat. 1915, §§ 10293-10309), which authorizes the state board of embalming to make rules,'not inconsistent with the laws of this state or of the United States, regulating the embalming of dead human, bodies, and to conduct examinations to issue licenses to qualified persons for the practice of embalming, etc., is sufficient authority for the state board of embalming to promulgate and enforce a rule for the revocation of a license issued and accepted pursuant' thereto, for the infraction of a valid rule of such board. -</p> <p>2. Same. Under the powers conferred by law upon the state board of embalming to make rules touching the practice of embalming and to issue licenses to persons found to be duly qualified, such board has power, for good cause shown, and upon due notice and a fair hearing, to revoke an embalmer’s license when he confesses to have violated a valid rule of the board, notwithstanding such violation is also a misdemeanor punishable by a fine.</p> <p>3. Same — Statute Authorizing Board of Embalming to Promulgate and Enforce Its Rules Constitutional. There is no constitutional objection to the embalmer’s statute which declares it to be a misdemeanor to violate a reasonable rule of the state board of embalming, although the rule is only promulgated by virtue of that statute and the rule itself is not prescribed until after the statute declaring its infraction to be such misdemeanor is enacted.</p> <p>4. Same — Under Facts Shovm No Breach of Statute Appears. The facts confessed by plaintiff in a hearing before the state board of embalming, on a complaint that he had violated the law and a certain rule of the board made' pursuant thereto, examined, and held to be no breach of the statute itself.</p> <p>5. Same — Rules of Embalming Board Must Be Reasonable. Where an official board like the.state board of embalming is authorized to make and enforce rules concerning the embalming of dead human bodies, and for the examining and licensing of embalmers, such rules must be reasonable, and any rule clearly unreasonable or one given an unreasonable interpretation or application is void.</p> <p>6. Same — Rule -as Applied to Facts Shown Unreasonable. The summarized facts of this case disclose: A citizen of Geneseo died in a hospital at Little River. His death was not the result of a communicable disease. His relatives requested the plaintiff, an undertaker at Geneseo, to bring home the dead man’s body. He complied, bringing home the body in an automobile hearse, over the highways of a rural community, a journey of fifteen miles. He disregarded a rule of the state board of embalming which would have required that before bringing home the dead body, he should have embalmed it and waited thereafter for twelve hours, and he should have procured a removal permit from the local registrar of embalmers at Little River, and should have tagged the dead body with a yellow paster furnished by the state board. In consequence of the breach of this rule, the plaintiff’s license as an embalmer was revoked. Held, that this rule, as interpreted by the state board and as applied to the facts outlined above, is unreasonable and void, and held, also, that the plaintiff is entitled to reinstatement as a licensed embalmer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — Personal Injuries — Award of Damages —Judgment — Periodical Payments. Under the workman’s compensation act the plaintiff recovered a judgment for $520 for broken ankles, the journal entry reciting that “the future damages of plaintiff is left open for the further consideration of the court.” More than a year thereafter, on notice and hearing, the court gave the plaintiff judgment for six dollars a week until July 6, 1925. Held, that the court had jurisdiction so to adjudge, and held, further, it was not error to award weekly payments instead of a lump-sum judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Action to Quiet Title — By Assignee of Oil and Oas Lease. -The facts and findings show that the provision in the contract involved herein that a defect in the title of the gas and oil lease assigned should render such contract void does not preclude the plaintiff from maintaining this action to-quiet his title.</p> <p>2. Same — Title Not Defective. Held, that the title transferred was not defective.</p> <p>3. Same — Power of Attorney Withheld from Record. The power of attorney held by the defendant Liggett authorized him to pass the title of certain other defendants, although withheld from record.</p> <p>4. Same — Assignments of Lease Delivered. The facts and findings show that the assignments of the lease were delivered.</p> <p>5. Same — Consideration for Assignments of Lease — Delay. The delay of the plaintiff in turning over certain shares of stock in consideration for the assignments of the lease was the fault of the defendant Liggett in not recording the power of attorney.</p> <p>6. Same — Tender of Shares of Stock in Consideration for Assignment. The facts and findings show a sufficient tender of the shares of stock, the agreed consideration for the assignment of the lease.</p> <p>7. Same — Possession by Plaintiff. The facts and findings show a sufficient possession to enable the plaintiff to maintain the action.</p> <p>8. Same — Effect of Not Recording Power of Attorney. Section 2073, General Statutes of 1915, requiring a power of attorney to be recorded before action thereunder does, not avoid a conveyance made pursuant to such power without recording the latter.</p> <p>9. Same — Pleadings—Record—Judgment. The pleadings and record held to justify the inclusion of all the defendants in the judgment rendered.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Inheritance Tax — Charge Upon Right to Inherit Property. The so-called inheritance tax (Gen. Stat. 1915, ch. 115, art. 7), is a charge upon the right to receive property passing by descent or will.</p> <p>2. Same — How Laid on Personal Property Belonging to Estate of d Nonresident Testator. A New York testator provided in his will that all the personal property with certain exceptions should be sold by the executors and out of the proceeds they should pay certain cash legacies. The total value of the estate was over twenty-five million dollars. The total indebtedness was over three million dollars. No administration was taken out in Kansas. The New York surrogate court allowed debts aggregating over three million dollars. There were no debts or creditors in Kansas. The special bequests amounted to about six million dollars, leaving about fifteen million dollars in the residuary estate. The testator left $351,000 of stock in the Santa Fe Railway Company — specific bequests thereof having been made. Held, that, the inheritance tax should be laid on such Kansas property after deducting a proportionate amount of the debts of the estate.</p>

<p>syllabus by the court.</p> <p>Road Improvements — Order of County Commissioners Conditional — Order Not Effective — Cannot be Enforced by Mandamus. Under the statute which' requires that as a preliminary to the construction of proposed road improvements the county board must find them to be of public utility, where an entry is made upon the commissioners’ journal reciting that it was found that the improvements asked are of public utility and are ordered made upon condition that the road connects with others outside of the county and that federal aid should be received, this language is tó be construed as attaching the conditions to the finding as well as to the order, and such a conditional finding is not sufficient to authorize an order for the construction of the proposed improvements.</p>

<p>Appeal from Reno district court; William G. Fairchild, judge.</p>

<p>Appeal from Douglas district court; Charles A. Smart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Compensation Act — Agreement to Arbitrate — Action to Set Aside Award of Arbitrator. In an action, by an employer to set aside an award of an arbitrator under the workmen’s compensation act, the court'found that the cause of claimant’s disability' did not arise out of or in the course of her employment, but held that because the employer had agreed to arbitrate and appeared before the arbitrator it was not within the power of the court to cancel the award. The court further found that at the time of the review the claimant was capable of earning at least twelve dollars per week in some suitable employment, and awarded her the minimum amount of six dollars per week for 416 weeks, payable as her wages were payable. Held (following Goodwin v. Packing Co., 104 Kan. 747, 750, 180 Pac. 809; Boyd v. Mining Co., 105 Kan. 551, 185 Pac. 9; Royer v. Hammer, 106 Kan. 374, 187 Pac. 858), that while the employer was not estopped by consent to the arbitration, the provisions of the statute limiting the scope of an arbitrator’s decision prevents the employer from obtaining any other relief than that granted by the court.</p> <p>2. Same — Arbitration—Consent—Scope of Arbitration. Under the provisions of section 11, chapter 226, Laws of 1917, “unless such consent or order of appointment expressly refers other questions, only 'the question of the amount of compensation shall be deemed to be in issue.” Whatever issues are referred, the decision of the arbitrator upon them is final, except for the limited review provided in the statute.</p> <p>3. Same — Scope of Court’s Power Over Arbitration. The statute does not attempt to limit the scope of the inquiry which the court may make in determining whether there has been fraud, undue influence, or misconduct upon the part of the arbitrator, or whether the award be grossly excessive, or grossly inadequate, or whether there has been an increase or decrease of disability.</p> <p>4. Same — Excessive Award of Arbitrators — Power of Court. Upon the court’s findings of fact it possessed authority to declare the award excessive and to reduce the amount.</p>

<p>Appeal from Atchison district court; William A. Jackson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin— Pleading and Admission of Defendant’s Counsel — Warranted Judgment for Plaintiff. Under the pleadings, and statement of the defendant’s counsel as set forth in the abstract, it was not error to render judgment for the plaintiffs.</p> <p>2. Same. Had the defendant claimed, at the time of trial, the right to retain possession of the personal property involved until the partnership affairs between himself and tire junior plaintiff should be adjusted it would have been error to render judgment for the plaintiffs; but no such claim being made, the plaintiffs, in view of the defendant’s admissions, were entitled to recover.</p>

<p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.</p>

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

<p>Appeal-from Sedgwick district court, division No. 3; Jesse I). Wall, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Oil and Gas Lease — Provision for Advance Payment of Bents and for Termination of Lease Interpreted. In an oil and gas lease which contained the common provision that all rights under it should cease if a well were not begun within a certain time, unless the lessee should pay a quarterly rental of $140 in advance, a clause was added to the effect that the lessee agreed to pay $140 each three months until the royalties should exceed that amount. It is held that the additional clause did not impose upon the lessee an absolute obligation to pay rent, but is to be interpreted as meaning that if he elected to continue the lease in force by paying rent such payments should cease whenever the royalties should exceed the amount named.</p> <p>2. Same — Provision of Lease Relating to Its Surrender Not Complied With. Under an oil and gas lease providing that it shall cease to be effective if no well is begun within a certain time, unless a specified periodical rent is paid in advance, and that the lessee may at any time bring the lease to an end by surrendering it and paying one dollar, where the lessee commences the payment of rent he is liable therefor until he avails himself of the surrender privilege.</p> <p>3. Same. The privilege of the lessee to end his liability under an oil and gas lease by surrendering it is not exercised by filing a release with the register of deeds, when the lessor has no notice or knowledge thereof.</p>

<p>SYLLABUS BY THE COURT:</p> <p>Specific Performance — Sale of Homestead — Insanity of Husband at Time of Conveyance — No Joint Consent to Convey Homestead. A contract for the sale of a homestead upon compliance with certain conditions was executed by both husband and wife, but before compliance with the conditions or the execution of a conveyance of a homestead, the husband was adjudged insane. The wife was appointed as guardian of the person and estate of her husband, and after obtaining authority from the probate court executed a deed for the conveyance of the homestead for herself, and also one as guardian for her husband, and tendered these to the purchaser as a compliance with the contract. The purchaser deemed the conveyances insufficient, and refused to accept the deeds and pay for the land. Held, that there was not the necessary joint consent to make an effective conveyance of the homestead and that specific performance of the contract was rightly refused.</p>

<p>Appeal from Bourbon district court; Edward C. Gates, judge.</p>

<p>Appeal from Sedgwick district court, division No. 1; Richard E. Bird, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Partition — Homestead Rights Involved and Determined. Record examined, and held to sustain tile findings and judgment that the plaintiff is entitled to her homestead interest in the property involved, and that her stepson is not owner thereof or her landlord in respect thereto.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Homestead — Occupied, by Widow of Intestate Husband — Subject to Partition at Suit of a Direct Heir. When the owner of a homestead dies intestate, leaving as his only heirs his widow and an adult son by a former marriage, the widow cannot successfully resist partition of the homestead in an action by the son; and the fact that she continues to reside on the homestead and the son resides elsewhere is immaterial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Tax Deed — Based Partly Upon Taxes Paid by One in Possession and' Part Owner of the Land — Invalid Tax Deed. One who purchased land at a tax sale, when he had no interest in the land, subsequently obtained an interest in it through the will of an ancestor who died, after which he paid subse- • quently accruing taxes which payments were endorsed upon his tax certificate, and still later obtained a táx deed for the land by paying all accruing interest, costs and charges, which altogether constituted the consideration for his tax deed, was disqualified to take a tax title to the land, and the tax deed issued to him was without validity.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Agreement to Execute an Oil and Gas Lease — No Mutuality of Obligation — Not Enforceable. An instrument in form a contract, provided that the first party should execute an oil and gas lease and deposit it. in a bank, for delivery to the second party when the second party should begin drilling a well in a specified.locality. The second party agreed to begin drilling the well; but the instrument provided that if he did not begin drilling within a stated time the contract and lease should be of no effect. Held, the instrument when signed did not create an enforceable obligation,, and the first party could withdraw at any time before the second party commenced to drill.</p> <p>2. Same — Withdrawal from Contract. The petition filed by the second party to enforce specific performance of the contract considered, and held to disclose that the first party did withdraw from the contract before the second party commenced to drill.</p> <p>3. Same — Contract to Make a Contract — Incomplete—Not Enforceable. The contract provided that the lease to be executed should be Producer’s form 88. A material subject of Producer’s form 88 was not covered by the contract, and the lease could not be written without further negotiation. Held, the contract was not specifically enforceable.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Will — Bequest in Trust — Interpretation of Will — Beneficiary Entitled to Net Income of Property. Under a will giving the testatrix’s property to a trustee for the use and benefit of her mother during her life and directing the trustee to sell so much of it as he might deem necessary for her care and maintenance, the mother is to receive the whole of the net income of the property, although it is more than sufficient for her support.</p>

<p>Appeal from Reno district court; Frank F. Prigg, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cancellation op Oil and Gas Lease — Lease Terminated — Rejusal to Re- . lease of Record — Damages—Attorney Fee. Plaintiffs leased two tracts of land for gas and oil production for a term of one year and as much longer as gas or oil should be found in paying quantities. A “dry well” was drilled in one tract and that tract was re-ceded to plaintiffs. On the other tract a gas well was drilled and it produced profitably for some years. After it ceased to produce, plaintiffs made written demand upon the leaseholder to release it of record. The leaseholder refused. Held, that judgment of cancellation, and for statutory damages and attorney’s fees, was properly decreed in plaintiffs’ favor.</p> <p>2. Same — Lease Terminated — Duty of Assignee to Clear the Record. Where an oil and gas lease was for a term dependent upon future contingencies and not for a definite term ascertainable from a mere inspection of the record, and such lease was recorded, the admitted assignee of such lease has the duty of clearing the record when the contingencies transpire which operate to terminate or forfeit the lease; and this duty may not be avoided because the assignment was not likewise recorded.</p>

<p>Appeal from Franklin district court; Charles A. Smart, judge.</p>

<p>Appeal from Cheyenne district court; Willard Simmons, judge.</p>

<p>Appeal from Leavenworth district court; James H. Wendorpp, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judicial Sale — Redemption—Rights of Leinholders. A creditor who attaches the real property of his debtor becomes a lienholder within the meaning of section 478 of the code of civil procedure and cannot, under an order of sale issued in obedience to a judgment rendered in his favor, sell the real property to satisfy the attachment lien after a sheriff’s sale of the property- under a judgment in favor of a superior lienholder and a redemption from the sheriff’s sale by the attachment debtor. (Civ. Code, § 497.) The redemptioner takes the title that would have been conveyed to the purchaser at the sheriff’s sale.</p> <p>2. Res Judicata — Matters Arising on Motion After Judgment. Matters determined on a formal motion after judgment may be res adjudicata, but matters which are not necessarily connected with and do not become a part of the judgment on the motion are not conclusive in other actions.</p> <p>3. Priority op Liens — Title Acquired Through Foreclosure and Redemption — Lien Acquired by Attachment Proceedings. A grantee from one who obtains the title to real property in fraud of the rights of a creditor gets such a title to the property as will permit the grantee to redeem the property from a sheriff’s sale made under a judgment foreclosing a mortgage superior to the rights of the defrauded creditor who attaches the real property as the property of the defrauding debtor about the time the foreclosure action is commenced.</p> <p>4. Appeal — •Findings on Conflicting Evidence Conclusive. On appeal, a general finding of the trial court resolves in favor of the successful party all facts on which there was conflicting evidence.</p> <p>5. Judicial Sale — Redemption—Disposition of Money Paid for Redemption. Neither the purchaser of real property at a sheriff’s sale nor any of those in privity or in association with him can, by any arrangement between themselves, retain the title to the property and at the same time obtain the money paid to the clerk of the district court by the owner of the property to redeem it from the sale or keep the money paid by the owner direct to the purchaser for the purpose of obtaining a deed from him conveying the land to the owner.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Bulk Sale op Merchandise — Bulk-sales Lkw Not Complied, With — Rights of Creditors of Vendor. A dealer in motorcycles, bicycles and accessories, who also sold small quantities of oil supplied him by plaintiff under annual contracts for 100 barrels of oil in deliveries of a few barrels at a time, changed his mode of receiving his annual supply, and received an entire carload of ninety barrels at one delivery. He stored the usual amount which he had been accustomed to receive in his place of business, and stored the remainder, about eighty-five barrels, in a public warehouse. Having this large supply on hand, he determined to alter his former usual ■course of business, which was selling oil in gallon quantities, and to that end he employed a salesman to solicit orders for barrel lots. Some such orders were secured but not filled. The dealer sold and delivered the entire stock of oil stored in! the warehouse to defendants and they paid him the agreed price therefor, knowing at the same time that plaintiff had not been paid for the oil thus delivered to them. There was no compliance with the provisions of the bulk-sales law. Held, that the sale to defendants was not made in the ordinary course of business, and that the defendant purchasers were liable to plaintiff for the amount due on the eighty-five barrels of oil.</p>

<p>SYLLABUS BY THE COURT..</p> <p>Replevin — Wheat Crop Wrongfully Levied Upon by Sheriff — Plaintiff Not Estopped From Asserting Ownership by Her Conduct at Sheriff’s Sale. A crop of wheat owned by the plaintiff was levied upon and offered for sale as the property of an execution debtor. She gave notice to the sheriff and those attending the sale'that the-property belonged to her and that she would resist the taking of the property by the sheriff or any purchaser. The sale proceeded and finding that her notices and warnings were ineffectual, she undertook to save her property by making a bid for it and the sheriff struck off the property to her. She declined to complete the bid by payment on the ground that the property was her own, and not that of the execution debtor. As the sheriff was proceeding to advertise and resell the property to pay the judgment against another, her action of replevin was brought. Held, that the attempt to sell plaintiff's property to satisfy a judgment against another was a nullity;‘that the bid made did not change the ownership of the property; and that she was not estopped td assert ownership of the property in the action of replevin.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Carriers — Delay in Transportation — “Unavoidable Accidents” — Inexcusable Delays. The statute requiring carriers to transport live stock without delay and at'a rate of speed averaging fifteen miles per hour, unless prevented by unavoidable accident, and subject to certain exceptions, interpreted, and held, delays from the following causes are .not excusable: Allowing trains to pass; track blocked by trains; waiting for block; taking water and coal; inspecting train; lunch for train crew; waiting for engine; cutting out helper; hot box; sparks from brake shoe; loading stock for other shippers.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Forcible Detainer — Agency—“Real Party in Interest” — Estoppel. A tenant who rents'real property from another as agent and manager of the estate of a deceased person cannot question the right of the plaintiff to recover in an action of forcible detainer because she brings the action as agent and manager of the estate of the deceased person.</p>

<p>SYLLABUS BY TI-IE COURT.</p> <p>1. Ruling on Demurrer to Petition — Time in Which to Appeal. Rule followed that a trial court’s ruling on a demurrer to a petition cannot be reviewed unless an appeal is taken within six months from the time such ruling is made.</p> <p>2. Negligence — Use of Defective Auto — Allegations of Petition. Where an action charges negligence on the part of an employer, and is not founded upon the negligence of his employees for which the employer is liable, the want of allegations of negligence on the part of the employees gives no ground for an objection to the introduction of evidence.</p> <p>3. Same — Rulings on Evidence — No Error. Objections to the competency of evidence disclosed by the record examined, and not sustained.</p> <p>4. Same — Personal Injuries — Demurrer to Evidence Properly Overruled. The evidence to support a cause of action for damages occasioned by the operation of an automobile which was defective and dangerous to use examined, and held that the demurrer thereto was properly overruled.</p> <p>5. Same — Defective Automobile Being Used in Owner’s Business. The evidence examined and held to show that at the time plaintiff was injured by the defective automobile it was being used by the owners’ employees in pursuit of the owners’ business.</p> <p>6. Same — Instruction Properly Refused. Instructions requested which would • completely bar the plaintiff’s right to recover unless the jury should find negligence on the part of the employees operating the car and unless they were using it in the discharge of some duty for their employers, were properly refused.</p> <p>7. Same — Instructions. Instructions given examined, and held to contain nothing prejudicial to defendants. . 4</p> <p>8. Same — Owner of Defective Automobile — Liability for Damages for Permitting Its Use. The owners of an automobile who knowingly permit it to be used on a public street by their employees when it is so greatly out of repair and in such a defective condition that it cannot be readily and effectively controlled and when it is prone to swerve and lurch from one side of the street to the other, are liable in damages to a person standing in -the street and free from negligence himself, when such person is struck, knocked down, and injured by such defective automobile.</p> <p>9. Same. A Ford car having a bent front axle and bent radius rods and which swerves and lurches from one side of a street to the other when it is being propelled is a nuisance, and the law pertaining .thereto is the ordinary rule governing the care and keeping of dangerous instrumentalities, and the owners of it are bound to take exceptional precautions to prevent its doing mischief to persons or property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Oil and Gas Lease — Modified by Subsequent Agreements. An oil and gas lease is held to have been modified by subsequent agreements and all are to be considered together in determining the rights of the parties.</p> <p>2. Same — Subsequent Agreements — Consideration Therefor — Forfeiture of Lease. The subsequent agreements are held to have been based on adequate consideration, and the failuz'e of the lessee to comply with the agreements is held to be sufficient ground for adjudging a forfeiture of the lease.</p> <p>3. Same — Notice of Termination of Lease. Sufficient notice of the termination of the lease is held to have been given by the lessor.</p>

<p>Appeal from Anderson district court; Charles A. Smart, judge.</p>

<p>Appeal from Butler district court; Allison T. Ayres, judge.</p>

<p>Appeal from Mitchell district court; William R. Mitchell, judge.</p>

<p>Appeal from McPherson district court; Frank F. Prigg, judge.</p>

<p>syllabus by the court.</p> <p>1. Abstract op Record — Transcript of Evidence. A printed transcript of all the evidence for plaintiff and defendant is not an abstract conforming to the code of civil procedure pertaining to appeals, nor as explained and interpreted in Railway v. Conlon, 77 Kan. 324, 94 Pac. 148; Hills v. Allison, 79 Kan. 617, 100 Pac. 651.</p> <p>2. New Trial — No Statutory Grounds Therefor Stated by Court. Rule followed that where a new tidal is granted on a motion setting up all the statutory grounds therefor, and the trial court does not indicate the specific ground upon which such new trial is granted, the granting of such new trial cannot furnish a basis for reversible error.</p> <p>3. Same — Preponderance of Evidence — How Determined. The matter of preponderance of evidence is not necessarily dependent upon the greater number of witnesses, since the testimony of the smaller number may be truthful and credible, and the testimony of the greater number may, be discredited or untruthful.</p> <p>4. Same — Trial Court Should Specify Grounds for Granting New trial. When the trial court grants a new trial on a motion therefor based on several grounds, it is good practice, and tends to expedite the business of both trial and appellate courts, for the trial court to specify the particular grounds on which the new trial is granted.</p> <p>5. Same — Request that Trial Court Indicate Grounds for Granting New Trial Made Too Late. Where the trial court makes an order granting a new trial pursuant to a motion therefor based on all the statutory grounds but does not indicate the particular grounds upon which the motion for a new trial was sustained, and the plaintiff appeals therefrom, and thereafter the plaintiff appellant returns to the trial court and presents a motion that the trial court indicate the particular grounds upon which the new trial was granted, and the trial court refuses such belated request, it is held, that such request was not in fact a motion to amend and correct the judgment, and that it was within the trial court’s discretion to refuse it.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Street-railway Crossing — Stalled Automobile — Special Findings Interpreted. A fair interpretation of special findings of the jury is that while plaintiff was guilty of negligence in stalling his automobile on the street-car track at a crossing, the motorman operating a street car which collided with the automobile was negligent in failing to stop his car after the negligence of the plaintiff had ceased, in that he had time and opportunity to have stopped his car and prevented the collision after the peril was discovered.</p> <p>2.' Same. A special finding that an injury was caused by one kind of negligence does not preclude reliance on another ground which, according to other findings, the jury has found was established.</p> <p>3. Same — Interpretation of Special Findings. Obscurity or slight inconsistency in special findings does not necessarily require the overthrow of a verdict. All findings are to be considered together, and if one interpretation points to inconsistency with the verdict and they are fairly susceptible of another which harmonizes with the verdict, the latter should be adopted.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Carriers — Wheat Lost in Transportation — Liability of Carrier — Evidence. The evidence considered, and held sufficient to sustain a judgment holding a carrier liable for failure to deliver at destination wheat which it received for transportation.</p> <p>2. Same — No Error in Reception and Consideration of Evidence. _ Assignments of error relating to reception and consideration of evidence examined, and held not to be of such gravity as to compel a reversal of the judgment.</p> <p>3. Negligence — Plaintiff “Real Party in Interest.” The case of Bennett v. Railway Co., 106 Kan. 95, 186 Pac. 1005, distinguished.</p> <p>4. Same — ■Railroad Company Under Control of Director-general — Railroad Company Not Liable. The railroad company relieved from liability for loss occasioned by operation of its road while under control of the director-general.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Adoption of Child — Probate Court — A Court of General Jurisdiction — Presumptions as to Jurisdictional Facts. The probate court in making an order of adoption is to be regarded as a court of general jurisdiction, and the existence of facts essential to jurisdiction is to be presumed where the contrary does not appear, although not affirmatively shown by the record.</p> <p>2. Same — Adopted Child — Bight of Inheritance. An adopted child may inherit as such from a collateral relative of the adopting parent.</p>

<p>Appeal from Franklin district court; Charles A. Smart, judge:</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Nuisance — Operating Bock Crusher Near Private Residence. The setting up and operating of a rock crusher in the street within forty-three feet of plaintiff’s residence and the consequent throwing of large quantities of dust upon and into the residence, injuring and destroying furniture, clothing and food, was a nuisance.</p> <p>2. Same — Case Tried Solely on Theory That Rock'Crusher Was a Nuisance. The case having been tried and determined on the theory that it was a nuisance and not that the machine was defective or unskillfully operated, there was no necessity to offer evidence or submit the case on the theory that negligence was essential to a recovery other than in the location and operation of the crusher in such close proximity to plaintiff’s home.</p> <p>3. Same — No Prejudicial Error in Instructions. Instructions relating to the duties and liabilities of the parties in the matter are held to be without prejudicial error, and the evidence is deemed to be sufficient to sustain the recovery.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract For Sale of Land — ■Not Signed by Party Sought to Be Charged— Contract Void Under Statute of Frauds. *The petition alleged in substance that after a trade was agreed on between a landowner and a copartnership of a farm'for a stock of automobiles, a contract setting forth the terms was reduced to writing and signed by the landowner; whereupon a member of the partnership orally agreed to insert the engine numbers of the automobiles and cause the firm to execute the contract. Held, that the contract being one for the sale of real estate and not being signed by the party sought to be charged, he is relieved from liability under the statute of frauds.</p>

<p>Appeal from Montgomery district court; Joseph W. Holdren, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Road Improvements — Illegal Notice — Injunction—Limitation of Actions. An order of a board of county commissioners approving a petition of resident taxpayers for the construction of an improved highway, made without giving a ten days’ published notice to the petitioners and others interested of the time and place when such petition will be considered, is illegal; but its illegality must be challenged within thirty days after such order is made, otherwise an action is barred under the limitation prescribed in section 1 of chapter 246 of the Laws of 1919.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Habeas Corpus — Custody of Minor Child. An order by a juvenile court placing the custody óf a child in another than its father is interpreted to be temporary and to be limited by its terms to the result of the prosecution of the father.</p> <p>2. Same — Father Entitled to Custody of His Child. When the prosecution was dismissed the temporary custody ended and the father, in the absence of evidence of his unfitness to care for and control his child, was entitled to its custody.</p> <p>3. Same — Jurisdiction of District Court. The district court had jurisdiction in a habeas corpus proceeding to determine the effect of the order of the juvenile court and the right of the father to the custody of his child.</p> <p>4. Same — Immaterial Claims of Error. Other claims of error are held to be immaterial.</p>

<p>Appeal from Chautauqua district court; Allison T. Ayres, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. School Districts — No tice of Special Meeting — Purchase of Additional Schoolhouse Site. A notice of a special meeting of the voters of a school district stating that it is called for the purpose of selecting a particular site, describing it, is not invalid because the call was limited to the proposed purchase of a designated site.</p> <p>2. Same — Vote to Purchase Additional Site for Schoolhouse — Not to Change Schoolhouse Site. The school district proposing to purchase the site included within its boundaries a city of the third class and already had two school buildings, one of which was used in part for high-school purposes, and the people of the district desiring to acquire another site upon which to erect another building to be used mainly for high-school purposes, voted to make the purchase of a designated site. No action had been taken by the district as to the future use or disposition of the old high-school building. Held, that the proposed action is to be regarded as the purchase of an additional site rather than a change of site.</p> <p>3. Same — School Districts May Acquire More Than One Schoolhouse Site. It is competent for a school district to acquire more than one site and erect additional school buildings thereon where more schools are necessary in the district, and the purchase of such additional site may be authorized by a majority of those voting at a legally called meeting.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Benefit Insurance — Common-law Wife of Assured — Separation—Subsequent Formal Marriage to Another Husband — Common-law Wife Not Entitled to Proceeds of Benefit Certificate of Her Common-law Husband. Previous to 1890, the plaintiff was the common-law wife of Thomas Kinney. In that year she separated from her husband, and in 1892 she was formally married to her present husband, with whom she has ever since lived, 'and by whom she has borne children. In 1904, Kinney obtained from a beneficiary society a certificate payable at his death to his wife. Kinney died in 1918, and the plaintiff sued for the proceeds of the certificate. Held, it will be presumed the plaintiff’s marriage to her present husband was legal; the presumption includes, if necessary, the fact of dissolution of the common-law marriage, by divorce granted to Kinney; and the presumption cannot be overcome, except by proof so cogent as to compel conviction.</p>

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

<p>Original proceeding in quo warranto.</p>

<p>Appeal from Gove district court; Isaac T. Purcell, judge.</p>

<p>syllabus by the court.</p> <p>Action to Recover Money — Money Paid upon Fraudulent Inducements of Appellant — Evidence Sustains Findings. The evidence considered, and held sufficient to sustain a finding in plaintiff’s favor upon the issue of fraud.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Devise With Power to Dispose of at Her Death as Devisee May Deem Best May Be Exercised by Will or Deed — When Deed Takes Effect. By his last will, probated in 1896, the testator devised all his property to his wife “to have and to hold the same during her natural life, and at her death to dispose of all the remainder of the property among the children and their heirs as she may deem best.” In 1918 the widow executed deeds conveying some of the real estate to certain of the children in consideration of “one dollar and love and affection,” and reserving to herself the use of the property during her life. In an action to set aside the conveyances, held, that the power to dispose of the estate is not limited to a will, either by implication or express terms, and therefore may be executed either by will or by deed, and that in this case the deeds, so far as they may operate simply in execution of the power, take effect only from the death of the widow, the words “and at her death” merely denoting the period when the disposition should take effect.</p> <p>2. Same. To the extent that a deed would be inoperative except as an execution of a power of appointment, it will execute the power though no reference is made thereto.</p>

<p>Appeal from Crawford district court; Andrew J. Curran, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judge Pro Tem — Failure to Take Official Oath — De Facto Judge. One who exercises the powers and duties of judge pro tem under an election by the bar of the district court and with the recognition and acquiescence of the other officials of the court, is a de jacto judge and his official acts are valid and binding notwithstanding his failure to take the oath of office as provided by statute.</p> <p>2. Same — New Trial Erroneously Granted. In a case tried before a judge pro tem defendant failed to appear and judgment went against him. Four days thereafter he filed a motion to set aside the judgment and grant a new trial. The judge pro tem sustained the motion on the sole ground that the judgment was void because of his failure to take and subscribe to his oath of office. Held, error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Construction op Sewer — Neither Condemnation Proceedings Nor Provision for Compensation for Land Taken is a Condition Precedent. A city may appropriate land for the purpose of constructing a sewer, without condemnation proceedings and without first making compensation or providing for an assessment of damages. (Railway Co. v. City of Hiawatha, 95 Kan. 471, 148 Pac. 744.)</p> <p>2. Same — Injunction Will Not Lie. Plaintiff,' claiming to be the owner of a strip of ground over which the city was proceeding to construct a storm sewer, brought an action to enjoin the city from proceeding with the work on the ground that it had no right to enter upon the land without condemnation proceedings or without first making provision for compensation. The court set aside a temporary injunction on the ground that plaintiff had no title to the land. Held, regardless of plaintiff’s title the actio’' .annot be maintained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — From Probate Court to District Court — Plaintiff’s Right to Dismiss His Action. On an appeal from the probate court the district court tries the case de novo, and the plaintiff may dismiss his action without prejudice at any time before the final submission thereof to the court. (Civ. Code, § 395.)</p> <p>2. Same — Action Dismissed — Improperly Reinstated. Appellant’s claim against an estate was disallowed in the probate court and he appealed to the district court where he filed a motion to dismiss the claim without prejudice, which the court sustained, and he paid the costs. Subsequently, on the motion of the administrator, the court set aside the order of dismissal and reinstated the cause. Held, error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sale — Threshing Machine — Written Contract — Warranty—No Written Notice of Defects as Required by Warranty — No Waiver. A threshing machine was sold under the terms of a written warranty, the material parts of which are set out in the opinion. The warranty required written notice of the defects within six days from the first day of the use of the threshing machine. Verbal notice given to the manager of a branch house of the machine company’s business did not comply with the terms of the warranty, and the warranty was not waived by the company sending workmen to repair the machine, nor by the promises of such manager to make the machine satisfactory.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Public Lands — Homestead Settlements — Railroad Grant ¡or Right of Way —U. S. Statutes — Change of Route — Width of Right of Way. Under the act of congress of July 2, 1864, amending that of .July 1, 1862, and permitting a change of route so that a road at first authorized to be built through Kansas into Nebraska might at the election of the railroad company be built into Colorado, the 400-foot right of way provided for in the first act attached to the road when constructed along the new route, even as against claimants whose title originated in settlements under the homestead and preemption laws after the passage of the second act, although before the construction of the road and before the filing of any map showing the new route; and this rule is not affected by the fact that after the passage of the second act and before the settlements in question the railroad company had filed a map showing its general route along the line first authorized.</p> <p>2. Same — Public Highway on Railroad Right of Way — Width of Railroad Right of Way Not Affected Thereby. Where a railway company has by act of congress a 400-foot right of Way, the laying out of a parallel highway inside of its boundaries does not extinguish the company’s right to the strip lying across the highway from the track.</p> <p>3. Same — Judicial Sale of Railroad Property — Rights of Purchaser. A railway company which purchases at judicial sale the property of another, including a 400-foot right of way granted by congress, takes such right of way subject to the same disability as its predecessor to alienate any part of it, notwithstanding the United States was a party, and the decree contained a clause cutting off its interests in the property conveyed.</p> <p>4. Same — Adverse Possession — Statute oj Limitations. Although the federal statute of April 28, 1904, validating conveyances of portions of a railroad right of way granted by congress has been held to cover the parting with title through adverse possession, that enlargement of the term “conveyances and agreements” in the act of June 24, 1912, of a similar nature, is not permissible, for that contains an additional paragraph treating of the effect of adverse occupancy, which controls that feature of the subject, and has been held not to allow the loss of title through the operation of the statute of limitation except by the running of the full period subsequent to the passage of the act of congress.</p>

<p>SYLLABUS by the court.</p> <p>1. Public Lands — Railroad Land Grants — Width of Right of Way — Construction of Land Grants. Upon the one question in which these cases differ from the six preceding ones, it is held, following Stuart v. Union Pacific R. R. Co., 227 U. S. 342, that under the act of congress of July 1, 1862 (12 U. S. Stat., ch. 120, p. 489), the Union Pacific Railroad Company and its successors in interest acquired a present grant of the right of way through public lands, and that within the meaning of the right of way section of the act all land was public where the title remained in the government and it had the ultimate right to dispose of it.</p> <p>2. Same. The defendants’ titles rest upon patents resulting from entries on the lands subsequent to July 2, 1864. Entries had been made upon the lands prior to July 2, 1864, but nothing resulted therefrom and the entries were canceled. Held, that the defendants cannot tack to their claims any rights by virtue of the canceled entries and that the prior entries did not remove the lands from the grant of the right of way by the act of July 1, 1862.</p>

<p>Appeal from Miami district court; Jabez 0. Rankin, judge.</p>

<p>Original proceedings in mandamus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Pasturing of Cattle — Evidence of Partnership — Special Findings— Verdict. The record examined, and held sufficient to establish a partnership liability on a contract to lease pasture land for cattle; that the partnership existed; that the contract was made; that the pasture land was provided by the plaintiff; that the failure of one of the defendant partners to reduce the oral contract to writing as he had agreed to do did not defeat the contract; that the objections to evidence concerning one partner’s statements to bind the other were properly overruled; that the special findings were consistent with the general verdict; and that the verdict and judgment (for a less amount than was proved to be due) contained no error, of which defendants have a right to complain.</p>

<p>Appeal from Haskell district court; Charles E. Vance, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Partnership — Action for Accounting — Petition Stated Cause of Action. The fact that a plaintiff who instituted an action for an accounting of the business of a partnership which had been dissolved is unable to state or fails to state the amount that will be found to be due to plaintiff on such accounting does not prevent an accounting, and especially where it is alleged by plaintiff that the defendant partner had appropriated and converted to his own use the profits of the firm business whereby he became indebted to the plaintiff in a considerable sum.</p> <p>2. Bankruptcy — Property of Bankrupt of Unprofitable Character Undisposed of by Trustee in Bankruptcy When Trust is Closed Reverts to Bankrupt. While all the property and rights of action of a bankrupt, except that which is exempt, pass to the trustee in bankruptcy, he is not required to accept assets or rights which are of an onerous or unprofitable character, and where rights of action are not accepted and asserted during his trusteeship and the trust is closed, the trustee discharged, and the assets of the trust distributed, the title to such rights reverts to the bankrupt.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Public Utility — Purchase of Waterworks System — Methods of Ascertaining Value Thereof. Methods adopted by engineers in ascertaining the value of a public utility plant are matters of evidence, when presented to a court, and not rules of law.</p> <p>2. Same — Purchase of Waterworks System — Properties Appurtenant to the System. On the purchase of a waterworks system by a city from the owners of the system, as between the city and the owners, the service lines between the mains of the system and the property line of its consumers belong to the owners of the system, whether put in by such owners or by its consumers, where the franchise does not specify who shall pay the expense of putting in such service lines.</p> <p>3. Same — Purchase of Waterworks System — Deductions from Engineer’s Report in Determining Value. In an action to determine the value of a waterworks system, deductions from the'amount ascertained by engineers to be the value may be made by the court where it, after a consideration of all the evidence, finds that such deductions should be made.</p> <p>4. Same. In an action to ascertain the value of a waterworks system, the court may deduct from the total valuation placed thereon by engineers the value of any part of the plant as fixed by the engineers where the court finds from the evidence that that part has no value whatever.</p> <p>5. Same — Deductions for “Functional Depreciation." In such an action, the amount that shall be deducted for what is named “functional depreciation” is a matter that must be determined by the court from the evidence.</p> <p>6. Same — Judgment—Costs—Compensation to Appraisers. The judgment taxing costs and awarding compensation to appraisers is not disturbed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Collision — Motor Truck and Street Car — No Recovery Under Doctrine of ‘‘Last Clear Chance.’’ The proceedings'in an action for damages resulting from collision of a motor truck with a street car, examined, and held, the truck driver was not entitled to recover under the doctrine of last clear chance.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Evidence—Declarations of Coconspirators — When Inadmissible. On the separate trial of one charged jointly with others with the crime of grand larceny, the rule approved in The State v. Johnson, 40 Kan. 266, 19 Pac. 749, and other cases cited in the opinion, is followed, and held, error to admit evidence of declarations of one of the alleged conspirators in the absence of defendant for the reason that the declarations were not made in the furtherance of the common, criminal design and were made after the conspiracy had been consummated.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Homicide—Excluded Evidence Not Produced on Motion for New Trial — No Error Predicated Thereon. The rule that proffered testimony excluded at the trial must be brought on the record in support of the motion for a new trial by affidavit, deposition or oral testimony, before it can be made the basis of reversible error, is the same in criminal as in civil cases, and unless the excluded evidence is thus submitted, no error can be predicated thereon — following The State v. Wellman, 102 Kan. 503, 512, 170 Pac. 1052.</p> <p>2. Same — Homicide—When Self-defense is Available to a Defendant. In a prosecution for homicide the trial court’s instructions correctly declared that the law does not permit an aggressor who provokes a difficulty with his adversary, and slays him in the course of it, to invoke the right of self-defense unless the aggressor, after provoking the difficulty, withdraws from the combat in such a way as to show his adversary his intention to desist.</p> <p>3. Sam:e — Homicfde—No Prejudicial Error Discerned in Record. The record, including the instructions given and refused in a prosecution for murder, where the defendant was adjudged guilty of manslaughter in the third degree, examined, and no error prejudicial to defendant discerned therein.</p>

<p>Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.</p>

<p>Appeal from Greeley district court; Albert S. Foulks, judge.</p>

<p>Appeals from Brown district court; William I. Stuart, judge.</p>

<p>Appeal from Republic district court; John C. Hogin, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Life Insurance — Liability Limited in Case of Death in Military Service. A policy of life insurance is not forfeited and is not forfeitable on account of the insured engaging in military service of the United States where the policy provides that, if the insured does engage in military service in time of war and death shall occur during such engagement or as a result thereof, the liability under the policy shall be limited to its cash surrender value at the time of the death of the insured unless he, with the insurer’s copsent, had paid the established extra premiums therefor.</p> <p>2. Same — Demurrer to Reply Erroneously Sustained. A demurrer to a reply should not be sustained where the reply denies facts alleged in the answer which, if true, would constitute a partial defense to the cause of action stated in the petition, and when the reply contains no admission of the facts thus pleaded in the answer.</p>

<p>Appeal from Cherokee district court; Frank W. Boss, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Commissions—Findings Sustained by Sufficient Evidence. Record examined and held to show that the special findings of the jury in favor of plaintiffs and against the defendant are sustained by sufficient evidence and compel an affirmance of the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Oral Agreement as to Manner of Payment Inadmissible. The rule followed that a promissory note in the usual, form cannot be contradicted by evidence of an oral agreement that it was to be paid only out of the profits of a certain business carried on by the payee.</p> <p>2. Same — No Available Defense Stated. Under-the allegations of the answer and the opening statement of the defendant’s counsel it is held that the defense indicated by the preceding paragraph could not be successfully urged as against the payee, and hence could not avail the defendant as against the indorsee of the note sued on.</p>

<p>SYLLABUS BY. THE COURT.</p> <p>1. Action on Express Contract — Recovery on Implied, Contract. A judgment based on an allegation of an express contract will not be reversed where the evidence shows that the contract was implied and the party liable has not been misled.</p> <p>2. Mechanics' Lien — Allegations of Petition — No Substantial Variance Between Pleading and Proof. A petition for the foreclosure of a mechanics’ lien alleged that the lien had been filed^ in the office of the clerk of the county. The evidence showed that the lien had been filed in the office of the clerk of the district court of that county. Held, that there was no substantial variance between the pleading and the evidence.</p> <p>3. Same — Lien Statement Properly Amended. A mechanics’ lien statement which recites that the plaintiff claims a lien in accordance with the laws of Oklahoma may be amended by changing the word Oklahoma to Kansas.</p> <p>4. Same — Material Sold for Use on Property Described in Lien Statement. There was evidence which tended to prove that the material'for which the lien statement was filed had been sold by the plaintiff to the defendant for use on the property described.</p> <p>5. Same — Lien Statement Filed in Time. The evidence tended to show that the mechanics’ lien statement was filed on June 8, 1920, and that the last item of material was sold on February 11, 1920. Held, that the lien statement was filed in time.</p> <p>6. Same — Materials Received and Used on the Lease — Lien Valid. Materials that were used on a gas and oil lease described in a lien statement were ordered by the president of the corporation owning the lease, or by the wife of the president, or by his son. The materials were received and were used on the lease. Held, that the defendant cannot escape liability therefor, although it was not shown that the president of the corporation, or his wife, or son, had authority from the corporation to purchase the materials.</p>

<p>Appeal from Sedgwick district court, division No. 1; Thomas E. Elcock, judge.</p>

<p>Appeal from Sedgwick district court, division No. 1; Thomas E. Elcock, judge.</p>

<p>Appeal from Douglas district court; Hugh Means, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Sale of Land — Agreement by Buyer to Pay Commissions Enforceable. Where at the time a written agreement is made for the sale of land it is orally agreed between the parties and an agent originally employed by the seller that the buyer is to pay his commission, the enforcement of the seller’s promise in an action against him by the agent is not prevented by the fact that nothing was said about the matter in the writing, to which the agent was not a party.</p>

<p>Appeal from Wyandotte district court, division No. 3;' William H. MoCamish, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Material Evidence — Witness Withheld — Presumptions—Inferences. Where a party has it within'his power to produce witnesses, presumably favorably disposed toward him, to explain a transaction or answer a controverted question, his failure so to do, unless satisfactorily explained, justifies an inference that the testimony if produced would be unfavorable to his side of the controversy.</p> <p>2. Jurisdiction — Appointment of Guardian — At Permanent Residence of Ward. The jurisdiction’to appoint a guardian over the person and estate of a lunatic or person incompetent to manage his affairs, belongs exclusively to the state where such person has a permanent residence.</p>

<p>Appeal from Wilson district court; Shelby C. Brown, judge.</p>

<p>Appeal from Wyandotte district court, division No. 3; William H. Mc-Camish, judge.</p>

<p>Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.</p>

<p>Appeal from Ness district court; Roscoe Wilson, judge.</p>

<p>Appeal from Elk district court; Allison T. Ayres, judge.</p>

Day, judge. Albert Watkins, and Arthur C. Scates, both of Dodge City, for the appellant; J. W. Davis, of Greensburg, of counsel. F. Dumont Smith, of Hutchinson, L. A. Madison, and Carl Van Riper, both of Dodge City, for the appellees.

<p>Appeal from Geary district court; Boswell L. King, judge.</p>

<p>Appeal from Shawnee district court, division No. 1; James A. McClure, .'judge.</p>

<p>Appeal from Barber district court; George L. Hay, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Banks and Banking- — Deposits Protected by State Guaranty Fund. A deposit which will be protected by the state guaranty fund may be accomplished by giving the bank credit in another bank in exchange for a certificate of deposit.</p> <p>2, Same — Certain Certificates of Deposit Not Claims Against the State Guaranty Fund. ■ It is held that in the present case certificates of deposit issued by a bank which has since been closed are not claims against the guaranty fund because of other circumstances tending to show that the transaction which they evidenced was not a deposit within the meaning of the statute' and because the bank paid a bonus of ten per cent for the money it received.</p> <p>3. Same — Certificate of Deposit Bearing Higher Bate of Interest than the Maximum Allowed Not Protected by the Guaranty Fund. A certificate of deposit bearing a higher rate of interest- than the maximum allowed by the bank commissioner is not within the protection of the guaranty fund. And the payment by the bank of a bonus to obtain a deposit bearing such maximum is equivalent to contracting for a higher rate.</p> <p>4. Same — Certificate of Deposit with Personal Indorsement Not Protected by State Guaranty Fund. Where the payee of a certificate of deposit requires the president of the bank to endorse it personally before agreeing to take it, such certificate is “otherwise secured” within the meaning of that term as used in the statute, and is not entitled to the protection of the guaranty fund, notwithstanding such security proves fruitless.</p> <p>5. Same — Certificate of Deposit — Right of An Innocent Purchaser Thereof to Participate in the Guaranty Fund. The evidence is held to show an issuance of a series of certificates of deposit to the payee and their sale by him to a bank, rather than an issuance of the certificates to the bank through negotiations carried on by him as an agent or broker. Where a certificate of deposit is issued under such circumstances that it is not within the protection of the guaranty fund, there being nothing on its face, however, to show that fact, its transfer to an innocent purchaser will not alter its character in that regard.</p> <p>6. Same. Where a person obtains from a bank a certificate of deposit under such circumstances that it is not protected by the guaranty fund, being led to do so by the bank commissioner telling him that it was entitled to that protection, the statement being due to a mistaken view of the law or ignorance of a fact known to the prospective investor, such conduct of the bank commissioner does not preclude him from challenging-the validity of the certificate as a claim against the fund when called upon to take official action in the matter.</p> <p>7. Same. Where money paid to the bank for a certificate of deposit issued under the circumstances stated in the preceding paragraph is used to pay claims against the bank which otherwise would have been chargeable against the guaranty fund, that fact does not entitle the holder to be reimbursed out of that fund.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — A “Massachusetts Trust” Is a Corporation. A “Massachusetts trust” is a corporation within the meaning of that word as defined in section 6 of article 12 of the Kansas constitution as including “all associations and joint-stock companies having powers and privileges not possessed by individuals or partnerships,” and as used in statutes the subject matter of which makes the definition pertinent and within the reason of the legislation. The decision to that effect in Lumber Co. v. State Charter Board, 107 Kan. 153, 190 Pac. 601, 10 A, L. R. 879, is adhered to.</p> <p>2. Same — Service on a “Massachusetts Trust” by Publication. In a proper case service by publication may be had upon a “Massachusetts trust” which is not a resident of this state, as a foreign corporation.</p> <p>3. Same — Defect in Publication Service — Cured by Voluntary Appearance. Any defect in the service by publication in this case is held to have been cured by the insertion in a motion to set aside the judgment against the defendant, on account thereof, allegations denying the merits of the plaintiff’s claim upon the facts.</p>

<p>Appeal from Rawlins district court; Willard Simmons, judge.</p>

<p>Appeal_ from Wyandotte district court, division No. 3; William H. Mc-Camish, judge.</p>

<p>Appeal from Pottawatomie district court; Robert C. Heizer, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Obtaining Property by False Pretenses. While the statute providing for punishment of false pretenses (Gen. Stat. 1915, § 3467) does not cover that form of dissembling known as “puffing,” .a false representation, designedly made to cheat and defraud and having that effect, is a false pretense. »</p> <p>2. Same — Investigation of Truth of False Representations. One to whom false representations are made is under no obligatipn to institute an independent investigation of the truth of the representations.</p> <p>3. Same — False Pretenses — Expression of Opinion — Assertion of Values — Questions for Jury. Generally, an expression of opinion, understood to be such, is not a false pretense. Whether or not an assertion of value is to be regarded as an expression of opinion, depends on circumstances. If made with the design that it shall be accepted and acted on as a statement of existing fact, it may be so regarded. Whether or not it should be so regarded, is a question for the jury.</p> <p>4. Same — False Pretense — Reliance Upon the False Representations. In a prosecution for false pretense, absurdity of the representations charged may be relevant to the question- whether the complainant relied on them and was</p> <p>- deceived, but absurdity is no defense if, other elements of the offense being present, the complainant was deceived.</p> <p>5. Same — Evidence of Similar False Representations Made to Others. The . rule permitting evidence of similar false representations to be introduced in a prosecution for false pretense, does not require the evidential representations to be precisely the same as the pretense charged.</p> <p>6. Same — Certain Assignments of Error Without Substantial Merit. Assignments of error relating to refusal to quash the information, admission in evidence of similar false pretenses, instructions refused, instructions given', sufficiency of the evidence to sustain the verdict', and other subjects, considered, and held to be without substantial merit.</p>

<p>Appeal from Saline district court; Dallas Grover, judge.</p>

<p>SYLLABUS BY THE .COURT.</p> <p>1. Criminal Law — New Trial — Newly Discovered Evidence. The rule is followed that new trials will not be granted for newly discovered evidence merely of an impeaching character.</p> <p>2. Same — New Trial — Excluded Evidence — Evidence Not in Record. Objections to certain questions were sustained. No offer or showing as to what the witness would have said was made. Held, no error.</p>

<p>Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Compensation Act — •Award of Arbitrator — No Lawful Grounds for Setting Aside Findings. Where a claim under the workmen’s compensation act is heard before an arbitrator appointed by the court, the vital question in controversy being whether the claimant is still under disability, and the arbitrator upon sufficient evidence decides that he has fully recovered and is merely simulating incapacity for work, such finding of fact cannot be set aside by the district court without a showing of unfairness or misconduct on the part of the arbitrator.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Ouster — County Commissioner — Proceedings on Appeal. An appeal from a judgment in proceedings to oust an officer under the provisions of chapter 237, Laws of 1911 (Gen. Stat. 1915, §§ 7603-7618), is tried in this court like any other appeal. A different procedure obtains where original proceedings are brought in this court. In that situation, a commissioner is usually ajjpointed by the supreme court to make findings of fact and of law, but the court must determine the facts and the law, aided by the findings of the commissioner.</p> <p>2. Same — Appeal ¡rom District Court — Evidence—Findings—Judgment. On . appeal from a judgment of ouster under chapter 237, Laws of 1911 (Gen. Stat. 1915, §§ 7603-7618), to remove a county commissioner from office it is held that certain findings of the district court are sustained by sufficient evidence, and compel an affirmance of the judgment.</p>

<p>Appeal from Mitchell district court; William R. Mitchell, judge.</p>

<p>Original proceeding in mandamus.</p>

<p>Appeal from Shawnee district court, division No. 1; Jambs A. McClure, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Public Road Improvements — Petition Granted — Subsequent Petition for Change in Material and Partial Change of Location Granted — Power of County Commissioners. A board of county commissioners, after it has legally ordered an improvement of a road under chapter 265 of the Laws of 1917, as amended by subsequent acts of the legislature, but before a contract for the construction of the road has been made, may order, under a subsequent proper petition therefor, a road built of different material on a location largely identical with that ordered in the first petition, but changing the location for a portion of the distance.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mandamus — Calling Election — Disorganization of Rural High-school District —Parties. Persons who are residents, citizens, electors and taxpayers 'of a rural high-school district and have children of high-school age do not have such a special interest peculiar to themselves in the calling of an election to vote upon the disorganization of the district as will entitle them to maintain an action of mandamus in their own names to compel the school board to call such election.</p>

<p>Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Nemaha district court; William I. Stuaht, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cancellation op Assignment op Lease — Procured by Fraud — Sufficient Petition — Demurrer to Evidence. In this action, one to cancel, on the ground of fraud, the assignment of a one-tenth interest in an oil and gas lease, the petition stated a cause of action, objection to the introduction of evidence under the petition was properly overruled, and' the evidence proved facts sufficient to constitute a cause of action.</p> <p>2. Same. The findings of fact were supported by evidence.</p> <p>3. Same — Request for Additional Findings Denied. It is not error to overrule a request for additional findings of fact where the request comes in the form of questions practically constituting a cross-examination of the court on findings that have been made.</p> <p>4. Same — Motion for Additional Findings — Motion for New Trial — -Procedure by Court Not Error. It is not error for a trial court to take a motion for new trial and a motion for additional findings of fact, to examine them in connection with the pleadings and the evidence, to come to a tentative conclusion concerning them, and to reduce that conclusion to writing, where he afterward gives all parties an opportunity to be heard and his mind remains open for conviction by reason and argument.</p> <p>5. Same — Findings—No Ratification of Fraud. The general finding of the court, which included a finding that the assignment that had been procured by fraud had not been ratified, was supported by evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. House Bill No. 48 — Laws of 1921 Providing for Disorganization of Certain School Districts — Legally Enacted. The legislative journals show affirmatively that house bill No. 48 was passed by the house and messaged to the senate where five or six amendments were adopted in committee of the whole, the bill was reengrossed, duly passed, messaged back to the house, which refused to concur in the amendments and a conference .committee was appointed, which reported to the senate recommending that the senate recede from certain of its amendments and that the house accept the other amendments.' The senate adopted the conference report on roll call duly taken and entered on the journal. The bill with conference report was messaged to the house which on the same day adopted the conference report on a roll call which was duly entered in the journal. The enrolled bill, signed by the president and secretary of the senate, the speaker and chief clerk of the house, approved by the governor and published, is worded the same as the reéngrossed bill in the senate with all the senate amendments to the original bill. The house journal of the proceedings of the day following the adoption by the house of the bill and conference report, contains a report from the chief clerk stating that he had compared six house bills, including house bill No. 48, with the enrolled bills; 'that the same were correctly enrolled as passed, had been properly signed by the officers of the house and senate, and had been that day presented to the governor for his approval. Held, the recital in the house journal of the report of the chief clerk is entitled to as much consideration as another coming from the same source, and the effect of the consideration of all the recitals of the journals of both houses is merely to cast a doubt upon the validity of the act, and therefore, following Belleville v. Wells, 74 Kan. 823, 88 Pac. 47, and cases cited in the opinion; The State, ex rel, v. City of Salina, 108 Kan. 271, 194 Pac. 931, and Patrick v. Haskell County, 108 Kan. 141,193 Pac. 1061, the doubt must be resolved in favor of the validity of the enrolled bill.</p> <p>2. Same — Statute—Has Both Retroactive and Prospective Operation. By the enactment of chapter 228, Laws of 1921, amending section 1 of chapter 275 of the Laws of 1917 the legislature unequivocally expressed the intention to give to the amendment a retroactive as well as a prospective operation.</p> <p>3. School Districts — Possess No Vested Rights as Against the State. There is no vested right in the existence of a qwcsi-municipal corporation such as a school district. Its rights and franchises, having been granted for the purposes of government, can never become such vested rights as against the state that they cannot be taken away. The legislature has authority to amend their charters, enlarge or diminish 'their powers, extend or limit their boundaries, consolidate two or more under one, overrule their legislative action whenever it is deemed unwise, impolitic, or unjust, and may abolish them altogether.</p> <p>4. Statute — Chapter 228, Laws of 1921, General in Its Application. Chapter 228 of the Laws of 1921 applies to all school districts where the conditions are those mentioned in the act, and is general, and not special legislation.</p>

<p>Appeal from Reno district court; Frank F. Prigg, judge.</p>

<p>Appeal from Shawnee district court, division'No. 1; James A. McClure, judge.</p>

<p>Appeal from Shawnee district court, division No. 2; George EL Whitcomb, judge.</p>

<p>Appeal from Russell district court; Jacob C. Ruppenthal, judge.</p>

<p>syllabus by the court.</p> <p>Liquor Law — Sales—Rulings of Court — No Prejudicial Error Appears in the Record of Conviction. The proceedings considered, and held: A motion for continuance was properly denied; prejudicial error was not committed through rulings relating to evidence and the cross-examination of witnesses; the evidence sufficiently established the sale relied on for conviction; assignments of error relating to instructions given are frivolous; misconduct of the jury was not established; and evidence offered to impeach the verdict was properly excluded.</p>

<p>Appeal from Brown district court; William I. Stuart, judge.</p>

<p>Appeal from Cowley district court; Oliver P. Fuller, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale of Land — False Representations — Instructions. The instructions in an action involving a claim of false representation are held to have been either correct or nonprejudicial.</p> <p>2. Note and Mortgage — ■Made to Stranger to Avoid Taxation. The rule followed that payment of a mortgage cannot be • defeated by showing that the person making the loan, for the purpose of evading taxation, caused the mortgage to be made to another who assigned it to him.</p> <p>3. Foreclosure of Mortgage — Rulings .on Evidence. Rulings admitting and rejecting evidence are held to have been either correct or nonprejudicial.</p> <p>4. Same — Motion for Change of Venue Without Merit. A motion for a change of venue is held to have been without merit.</p> <p>5. Process — Nonresident Attending Court in this State — Exempt from Service of Summons. A resident of another state who comes here to attend a trial as a witness is during such attendance exempt frorfi the service of summons.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Only Costs Involved — No Appeal. No appeal lies from a decision where the only matter involved is the costs adjudged against the appellant.</p> <p>2. Same — Duty of Trial Court to Raise Question of Jurisdiction. Although the appellee does not raise the' question of jurisdiction, it is the duty of the court, where the record discloses the lack of jurisdiction, to raise the question itself and dismiss the appeal.</p>

<p>Appeal from Marion district court; Roswell L. King, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Robbery — No Prejudicial Error in Record oj Conviction. The proceedings considered, and held: Misconduct on the part of the court in the cross-examination of witnesses does not appear; an instruction on the subject of attempt was waived, and the evidence indicates commission of a completed crime if any was attempted; and the evidence for the state covered all the elements of the crime of which the defendant was convicted.</p>

<p>SYLLABUS BY THE COUItT.</p> <p>1. Mechanic’s Lien — License to Use Land Creates No Estate Therein to Which a Lien Can Attach. One having a mere license with respect to realty has no estate or interest therein, and under our statute a mechanic’s lien cannot attach to a building which he erects upon it.</p> <p>2. Same — Contract Involved Not a Lease of Land. The contract involved in the present case is held not to be a lease, but an agreement by the owner of land that another person might erect a sorghum mill thereon and maintain it long enough to enable him to extract the syrup from his cane then on hand, the right thereby acquired being merely a license, incapable of supporting a mechanic’s lien.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Specific Performance — Sale of Land — Time Essence of Contract — Acceptance of Payments After Due — Forfeiture Inequitable. Although the acceptance of a single installment on the purchase price after due does not necessarily effect a waiver by the vendor of the provision of a contract for the sale of land making time essential, yet if enough instances of the kind occur to establish a course of dealing inconsistent with insistence on a strict adherence to the letter of the agreement in that regard, he cannot thereafter declare a forfeiture for a failure to make a payment promptly without first giving notice of an intention to insist thereon; and in a particular case two such instances may be sufficient for the purpose where but two deferred payments have become due and where a forfeiture would be inequitable.</p> <p>SYLLABUS BY THE COURT.</p> <p>Contract — Sale of Land — Default in Payments — Petition for Specific Performance by Vendee Not Demurrable. Where the vendor declares a land contract (in which time is made essential) forfeited for failure to meet a deferred payment promptly, a petition in an action by the purchaser for specific performance brought eighteen months later is not demurrable because not filed sooner, where it contains allegations inconsistent with the theory that the delay indicated acquiescence or abandonment. And it is held that allegations of that character were made in the petition in this case.</p>

<p>SYLLABUS BY TIIE COURT.</p> <p>1. Accident and Health Insurance — Liability of Reinsurance Company — Rulings on Motions and Denyurrers — No Error. The record in the action— involving the liability of a casualty insurance company on one of its policies — examined, and no error found therein respecting certain criticized rulings on motions and demurrers.</p> <p>2. Same — Refusal of Certain Instructions and Special Findings Not Error. Under all the evidence it was not error to refuse the requested instructions and special questions concerning which complaint is made, touching the time the plaintiff’s disability began.</p> <p>•3. Same — Motion to Strike Cross-petition from Files Denied. Held, that the trial court properly denied the motion to strike the cross-petition of the Kansas company from the files.</p>

<p>Appeal from Sumner district court; Oliver P. Fuller, judge.</p>

<p>SYLLABUS BY THE COUET.</p> <p>1. Specific Performance — Sale of Land — Evidence Proved Soundness of Mind of Vendor. There was evidence which tended to prove that the appellant was of sound mind at the time she contracted for the sale of real property.</p> <p>2. Same. There was evidence to support the jury’s answers to the special questions.</p> <p>3. Same — Sale of Land — Instructions as to Soundness of Mind of Vendor. An instruction which stated “insanity can only be proved by clear and reasonable evidence” but which also stated that “before you find the defendant of unsound mind you should believe such fact established by a preponderance of the evidence,” was not so misleading as to compel a reversal of the judgment based thereon.</p> <p>4. Same — Evidence That Contract Was Signed During a Luoid Interval of Vendor. There was evidence which tended to prove that the contract for the sale of real property was signed during a lucid interval of the one resisting’ the specific performance of the contract on the ground of unsoundness of mind at the time the contract was made.</p> <p>5. Same — Contract Not Inequitable. There was nothing inequitable in compelling the specific performance of the contract in question.</p>

<p>App'eal from Reno district court; William G. Fairchild, judge.</p>

<p>Appeal from Saline district court; Dallas Grover, judge.</p>

<p>Appeal from Marion district court; Roswell L. King, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Landlord and Tenant — Lease—Possession to Be Surrendered in Case of Sale— Action in Ejectment — Damages for Detention. The plaintiff claimed to have rented a farm to the defendant, the contract being that in case of sale during the term or ninety days before the end of any current year he was to notify the defendant who was to surrender possession the next March and be paid for any seeding or plowing he had done before receiving such notice. He alleged such sale and notice, demand for statement of any claim for seeding or plowing and the defendant’s failure to make claim and refusal to surrender possession. In a second cause of action he alleged a rental value of sixty dollars a month and asked judgment therefor “by reason of said defendant having retained possession of said land.” He added a third cause and alleged damages by reason of the detention and asked judgment for 31,000 in addition to the monthly rental of sixty dollars. The answer was a general denial. Before trial was had the proceeds of the wheat crop raised during the current year were ordered paid into court. Judgment was after-wards recovered for possession, and 3500 for damages. Instead of appealing •from the judgment the plaintiff moved that the proceeds of the wheat crop be paid to him. Held, the trial court properly denied such motion.</p>

<p>SYLLABUS BY THE COUET.</p> <p>1. Mortgage Satisfied — Refusal to Release — Evidence of Agency. There was evidence sufficient to uphold a finding of agency to receive payment.</p> <p>2. Same — Question of Fact for Jury. It is not error to submit to a jury a question of fact, where evidence, which may be disbelieved, has been introduced to establish that fact, although there is no evidence to the contrary.</p> <p>3. Same — Special Contract — Expense of Recording Release of Mortgage. Under a contract between a mortgagor and a mortgagee that the mortgagor shall pay for releasing the mortgage if it is paid before maturity, it is the duty of the mortgagee to pay the fee for the release of the mortgage if that amount is paid or tendered to him by the mortgagor.</p> <p>4. Same — Legal Fee for Recording Release of Mortgage. Twenty-five cents is the legal fee to a register of deeds for recording a release of a real-estate mortgage where the release consists of only one folio and is indorsed on the original mortgage.</p>

<p>Appeal from Linn district court; Edward C. Gates, judge.</p>

<p>Appeal from Osborne district court; William R. Mitchell, judge.</p>

<p>Appeal from Ellsworth district court; Dallas Grover, judge.</p>

<p>Appeal from Barton district court; Daniel A. Banta, judge.</p>

<p>Appeal from Reno district court; Frank F. Prigg, judge.</p>

<p>Appeal from Cherokee district court; Frank W. Boss, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Attempt to Commit Rape — Sufficient Information. An. information, drawn under sections 3392 and 3328 of the General Statutes of 1915, charged that the defendant attempted “to forcibly ravish and carnally know” a woman of the age of eighteen years, and set out the acts done in the attempt. Held, that the information charged an offense.</p> <p>2. Attempt to Commit Rape — 'Evidence of Force. Evidence of any force used by a man in an attempt to have carnal knowledge of a woman against her will is sufficient to uphold a verdict of guilty under a charge of an attempt to commit rape.</p> <p>3. Same — Requested Instruction Refused. It is not reversible error to refuse to give an instruction as requested, where it is otherwise given in substance.</p> <p>4. Same — Instruction N-ot Erroneous. Under a charge of an attempt to commit rape, an instruction which states that the attempt must be made with the intention to ravish and carnally know the woman against her will correctly states the law concerning one of the elements of the offense.</p> <p>5. Same — Voluntarily Abandoning Effort to Commit Rape. A man may be guilty of an attempt to ravish and carnally know a woman against her will, although he voluntarily ceases his efforts before he succeeds-in accomplishing his purpose.</p> <p>6. Same — Force Used Intended to Overcome Resistance. To commit the offense of an attempt to ravish and carnally know a woman against her will, it is not necessary that the force used be reasonably calculated to overcome resistance, nor that it be intended to use force sufficient to overcome all resistance.</p> <p>7. Same — Instruction—Failure of Complainant to Make Outcry. On account of an incorrect assumption of facts shown by the evidence, it was not reversible error for the court to refuse to give a requested instruction concerning the failure of the woman to make prompt outcry or complaint within a short time after the attempt.</p> <p>■8. Same — Correct Statement Concerning Alibi. The instructions correctly stated the law concerning alibi, and the statement contained in the instruction naming the essential elements of the offense, that if may have been committed at any time within two years prior to the time when the action was commenced, was not misleading.</p> <p>'9. Same — Evidence of Previous Solicitations 'by Defendant. Under a charge of an attempt to commit rape, it is proper to show previous unsuccessful solicitations to have carnal knowledge of the woman where in such solicitations he threatened to use force.</p> <p>10. Same — Cross-examination of Prosecuting Witness. It is not error to refuse to permit cross-examination of the prosecuting witness concerning a conversation had by her with one who is not a witness, where the fact that such a conversation had occurred was developed on cross-examination, and where none of the conversation had been testified to in chief,- and no foundation had been laid for the introduction of contradictory statements.</p>

<p>SYLLABUS BY THE COtTKT.</p> <p>1. School-bond Election — Bonds Declared Invalid — Appeal—Second Election Called Pending Appeal — No Estoppel to Prosecute Appeal. When the proceedings leading up to a proposed issue of school bonds to erect a high-school building are held invalid by a district court, and the judgment is brought to this court for review, and pending the appeal another bond election is duly called and held on the proposition to vote another and different amount of bonds and such proposition is defeated at the election, neither the discharge of the district officers’ duty in calling the second election, nor the election itself, nor the levying of a tax to provide a fund to erect a school building, is sufficient to justify a dismissal of the appeal, nor did the discharge of their official duties operate as an estoppel of their right to prosecute their appeal.</p> <p>2. Same — Notices of Election Sufficient in Form. Notices of a school-bond election on printed forms prepared by the state school-fund commission for general use throughout the state, but necessarily containing blank spaces in which time,- place and similar details were inserted with pen and ink, were in due form and sufficiently complied with the statutory provision that such notices be printed or typewritten.</p> <p>3. Same — Location of High-school Building Sufficiently Designated. A proposition to vote bonds for the erection of a high-school building “upon a suitable site to be selected in Reece, Greenwood county, Kansas,” is a sufficiently precise location of the site to answer the purposes of. the election, following Miely v. Metzger, 97 Kan. 804, 156 Pac. 753, and School District v. Davis, 99 Kan. 185, 160 Pac. 1008.</p> <p>4. Same — District Officer’s Name Signed to Election Notice at His Direction by Another. Where a person’s name is signed-for him at his direction and in his presence by another, the signature becomes his own, and has the . same validity as if written by himself.</p> <p>5. Same — Election Notices Valid. On a printed form of notice calling a rural high-school bond election, the words “Board of County Commissioners” followed the blank lines for the signatures of the officers calling the election. The notice contained the signatures and official titles of the officers calling the election, but the words “Board of County Commissioners” were not stricken out. Held, that these words were mere surplusage and did not affect the validity of the notices.</p> <p>6. Same — Manner of Conducting a High-school Bond Election. Under the rural high-school law (Laws 1917, ch. 284) a bond election may lawfully be conducted in the same manner as an ordinary school-district election, and in such case the Australian ballot law, which is designed for use in subdivisions of the state larger than a school district, has no application, following Abrahams v. School District, 97 Kan. 325, 155 Pac. 16.</p> <p>7. Same — Ballots Used Sufficient. The ballot used in this bond election, when read in the accompanying light of the official notices calling the election, was sufficient for the purpose of securing an intelligent expression of the will of the electors thereon, and was valid.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporation — Failure to Comply with Statutory Requirements — Forfeiture of Charter. It is within the power of the legislature to provide that the failure of a corporation to comply with certain prescribed requirements and duties, shall work a forfeiture of its charter and end its corporate existence without the judgment of a court.</p> <p>2. Same — Forfeiture of Charter — Power of Legislature. The enactment that the failure of a corporation to make annual statements and pay a prescribed fee within a fixed time shall work a forfeiture of its charter and that -the-state charter board may then declare the charter to be forfeited, is within the constitutional power of the legislature, and when the declaration is made it ceases to be a corporation.</p> <p>3. Sam:e — Presumption of Official Regularity. In the absence of evidence to the contrary it will be presumed that the action of the state charter board was regularly and legally taken.</p>

<p>Appeal from Johnson district court; Jabez 0. Rankin, judge.</p>

<p>Original proceeding in mandamus.</p>

<p>Appeal from Harper district court; George L. Hay, judge.</p>

<p>SYLLABUS BY THB COURT.</p> <p>1. Quieting Title — Oil and Gas Lease — Mutual Mistake in Description of Land — Injunction. In an action to quiet title to an oil and. gas lease and to enjoin the owner of the land from interfering with plaintiff’s operations under the lease, the defense was that the lease had been fraudulently altered by the lessee. It was shown that in the description of the land there was an omission in the numbers of the section, township and range. Held, the evidence was sufficient to sustain a general finding to the effect that the omission was by the mutual mistake of the parties who understood at all times just what land was embraced in the lease.</p> <p>2. Same — Alteration of Lease Without Fraudulent Intent — Equitable Jurisdiction. The alteration being without fraudulent intent and merely expressing what otherwise would be supplied by intendment, a court of equity has jurisdiction to restore the instrument and enforce its original terms.</p> <p>3. Same. There was evidence sufficient to sustain a judgment in favor of plaintiff on the question of mistake, the intent with which the alteration was made, and to establish grounds for an injunction because of unjustifiable interference by defendant with plaintiff’s operations under the lease.</p>

<p>Appeal from Jackson district court; Jambs H. Wendoeff, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Federal Employers’ Liability Act — •Injury to Workman^ — Demurrer to Plaintiffs Evidence Wrongfully Sustained. Ia an action founded on the federal employers’ liability act to recover for injuries to plaintiff while assisting in replacing upon the trades a switch engine that had been derailed, held, as against a demurrer there was evidence sufficient to take the case to the jury on the issue of whether at the time of the derailment the track was being used in interstate commerce, the question of defendant’s negligence, and the issue of assumed risk.</p>

<p>Appeal from Pratt district court; George L. Hay, judge.</p>

<p>Appeal from Finney district court; Charles E. Vance, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Machinery ¡or Grain Elevator — Contract Not Made or Authorised by Defendant. A building contractor entered into a written contract with the defendant to build a grain elevator and equip it with certain machinery for a stated price. The contractor gave an order to the plaintiff for the machinery, signing the defendant’s name thereto, by himself. The plaintiff endeavored unsuccessfully to get defendant to assume liability for the payment for the machinery. Defendant wrote plaintiff stating that'it had agreed to pay the contractor for the building and equipment and would be ready to take up the bills as they came. Notwithstanding this, plaintiff afterwards shipped the machinery consigned to defendant, who paid the freight and turned the machinery over to the contractor. Defendant paid out on claims against the building the full contract price. In an action to recover the price of the machinery, held, under the circumstances and the facts about which there is no dispute, defendant was not liable to plaintiff.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — Wrai Asked Against Officers of a Disorganised Rural High-school District. Under the pleadings, it is held for present purposes that the rural high-school district whose officers are sued herein has been legally-disorganized.</p> <p>2. Same — Action to Enforce Payment of Debt — Plaintiff Has “Adequate Remedy at Law.” Even if such disorganization had not taken place the plaintiff school district would not be entitled to mandamus to enforce the payment of its alleged debt — there being an adequate remedy at law.</p> <p>3. Rural High-school District — Indebtedness Does Not Prevent Disorganisation. Mere indebtedness for use of a building and for the sale of equipment is not such as to prevent disorganization under chapter 250 of the Laws of 1921.</p>

<p>Appeals from Shawnee district court, division No. 1; James A. McClure, judge.</p>

<p>Original proceeding in mandamus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation of Actions — Summons Issued — -Not Served on Defendant — Action Barred by Statute of Limitations. The filing of a petition and the issuance of a summons which was not served upon the defendant, cannot be regarded as the commencement of an action within the meaning of the statute of limitations, and where a judgment was given for plaintiff in such a proceeding on the service made which was reversed on appeal and a dismissal ordered on the ground that the service made was void, a new action brought by plaintiff within one year after the reversal is not within the saving provision of section 22 of the civil code.</p> <p>2. Same. The filing of a petition and the issuance of a summons which was served upon another than the defendant or upon one not authorized to receive service, does not interrupt the running of the statute of limitations.</p>

<p>Appeal from Leavenworth district court; James H. Wendorff, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Injured Workman Not Within Provisions of Workmen’s Compensation Act. The proceedings in an action for compensation considered, and held, the workmen’s compensation act did not apply to the injured workmen’s employers, whose business was drilling oil wells, because they had not employed five or more workmen continuously for more than one month at the time of the accident. (Gen. Stat. 1915, § 5902.)</p>

<p>Appeal from Ford district court; Littleton M. Day, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Syndicalism and Sabotage — Insufficient Information. An information undertaking to charge the defendant with violation of the statute -relating to criminal syndicalism and sabotage, and with counseling, aiding and abetting violations of the statute, considered, and held insufficient to authorize the district court to place the defendant on trial.</p>