Volume 15 — Kansas Reports

Error from Leavenworth, District Court. Action by Mrs. Rafferty as plaintiff, to recover possession of a certain lot in tbe city of Leavenworth. '■ The facts are fully stated in the opinion. The plaintiff had judgment for the recovery of said lot, at the November Term 1872, and the defendants bring the case here on error. contended that the facts found by the court were not sustained by the evidence. That the deed from Russell and wife to Wm.

Error from Cowley District Court. The district judge, at chambers, in July 1873, granted a preliminary injunction in favor of Wood, as plaintiff, and afterward on motion vacated such order; and from this last ruling Wood appeals, and brings the record here on error, for review.

Error from Davis District Court. Action by the K. P. Ply. Co. as plaintiff against the M. K. & T. Ply. Co. as defendant, to compel the defendant to execute to the plaintiff a release and conveyance of certain lands to which plaintiff claimed the paramount title, but which had been patented to the defendant by the governor of Kansas on the 15th of January 1873.

Error from Nemaha District (hurt. Quo warranto, brought by Wheeler, to test the right to the office of school-district treasurer of District No. 51, Nemaha county. At the ,annual district meeting held in March 1872, Brady, the defendant, was elected such treasurer, and thereafter qualified and entered upon the duties of his office. At the annual district meeting held in March 1873, 140 votes were cast, of which Wheeler, the plaintiff, received 70, and one Geo.

Error from Miami District Court. Action by the Board of Education of the City of Paola, as plaintiff, against L. E. Post, F. M. Shaw, A. A. Smith, J. B. Hobson, W. G. Painey, H. Pardee, and C. A..Leighton, as defendants, to recover the sum of $70,000 as liquidated damages, and being the penal sum named in a certain bond executed and delivered by the defendants to the plaintiff to secure the faithful performance of a contract made and entered into between the plaintiffs and…

Error from Pottawatomie District Cowrt. Mandamus, brought in the name of The State by School District No. 63, to compel the school-district board of School District No. 13 to levy a tax on the… Held: that to make the apportionment by the county superintendent valid it must be done at the time of the formation or alteration of the district, then the superintendent could easily defeat the new district from its share of the school property retained by the old district.

Error from Atchison District Court. Injunction, brought by Challiss to restrain the Board of County Commissioners, the county treasurer and county clerk from transferring certain tax-sale certificates held by Atchison county on his property, and to enjoin the county clerk from issuing tax-deeds thereon. The district judge granted a temporary injunction. The defendants thereafter filed a demurrer. In this condition the case passed two regular terms of .the district court.

<p> Error from Atohison District Court. </p> <p>Injunction, brought by Challiss, as plaintiff, against Benj. B. Cale, county clerk, and Stebbins, as defendants. The petition alleged that Challiss was the owner of 21 certain lots in “Challiss’ Addition” to the city of Atchison, describing them; and also the owner of certain real estate in “Spring Garden Addition,” which he alleges Ayas formerly divided into lots and blocks, describing them, but that these last-mentioned lots and blocks, prior to 1869, had been vacated by the county board; that the county treasurer had advertised that the time for redemption of lands and lots sold would expire between May 3d and June 27th 1873, three years from the several sales, etc.; that Stebbins claimed to hold tax certificates for said lots in “ Challiss’ Addition ” and “Spring Garden Addition,” and was about to apply to the county clerk for a tax-deed thereon, which would vest the-title thereto in Stebbins, or cast a cloud over the title, etc. The petition then says, “That each and all,of such certificates of sale are irregular, null, and void, and do not authorize the execution of any tax-deed or deeds thereon, for among others the following reasons, to-wit,” (setting up the six grounds mentioned in the opinion of th.e court in the preceding case of Ohattiss v. Comm’rs of Atchison Co., ante, p. 53.) Upon this petition, properly verified, Challiss applied for and obtained a preliminary injunction, restraining the county clerk from issuing tax-deeds to Stebbins on any of the tax certificates held by him on sales of lots in the two additions above mentioned. The defendants appeared, and demurred. Afterward, and in January 1874, the defendants, on motion and notice, applied to the district judge, at chambers, for an order vacating the injunction.as to all the property, in both additions, which motion was by said judge- overruled and denied. From this decision and refusal to vacate and dissolve said injunction the defendants appeal, and bring the case here on error.</p> <p>It is not claimed by Challiss that his lots and land are not subject to assessment and taxation, but his Achole case is based upon “irregularities” on the part of the several officers in the proceedings to enforce the collection of taxes. Challiss has not offered to pay any part of these taxes, but permitted the real estate to be sold in 1870, and the purchaser to pay the taxes'for 1870, 1871 and 1872, without objection; and not until a few days before the deed is to be issued does he object, and then he comes into court and invokes the interposition of equity in his behalf. By remaining quiet, Challiss was getting his taxes paid; but he must no.t permit a deed to be issued, for then, if the deed was set aside, he would have to pay the purchaser the taxes, costs, and interest provided by the statute; (§ 117, tax law.) When a person seeks equity, he must do equity. He must come into court with clean hands, and without laches or delay.</p> <p>The decisions of this and other courts have settled all there is in this case. This action cannot be maintained unless the tax is illegal, and the execution of -a tax-deed is a proceeding to enforce the collection of the same. (Civil Code, § 253.) On what ground can it be claimed that the tax is illegal? It is not claimed that the property is exempt from taxation. It is not claimed that the state, county or city had no power to levy taxes. It is not even claimed that the assessment or taxation is greater by reason of the real estate in Spring Garden Addition being described in lots and blocks, and not as a whole. The only objection made to the city tax is, that it was not properly certified to the county clerk. The petition alleges that the tax was made on the “real and personal property in such city.” There is nothing alleged in this petition that renders the tax illegal and void. Dillon on Munic. Corp. §737; 7 Kas. 210, 228.</p> <p>Mere irregularities do not render a tax illegal or void: Gen. Stat. 1057, §113; 7 Kas. 225; 8 Kas. 558, 561; 9 Kas. 296, 300, 489; 3 Ohio St. 1; 11 Wis. 470. Courts of equity will hot interfere unless the collection of the tax would be inequitable and unjust: 7 Kas. 210, 228; 8 Kas. 558; 9 Kas. 155, 296, 489; 14 Wis. 618; High on Inj. § 355. Plaintiff must tender what is right and equitable before he is entitled to an injunction: 7 Kas. 210; 11 Am. Law Reg. 208; 17 Wis. 284; 34 Ind. 36, 141; 1 Cal. 455; 15 Ohio St. 64; 2 Story’s Eq. Jur. § 959a. The plaintiff must not have been guilty of laches oi’ delay. He should have enjoined the levy of the tax, or at the latest the sale. He cannot wait until the relief" asked would work an injury to the other party: High on'Inj. §§7, 397; Hilliard on Inj. §43; 10 Cush. 252.</p> <p>It is difficult to understand the position taken by defendant in error as to the status of “Spring Garden” addition. He refers to a pretended vacation; yet he alleges that the property is situate in the First, Third and Fourth wards of the city. If this addition was legally vacated, then the N.-J of N.W.jr sec. 7, T. 6, R. 21, was no part of the city, but an outside tract of 80 acres of land; and a tax-deed on “ Lot 10, block 3, Spring Garden Addition,” would be no cloud upon the title of the 80-acre tract. If it was outside of the city, it was not injuriously affected by city taxes, for they were levied only on the property in the city. Even if the property should have been assessed in acres, it does not appear from the petition that the taxes would have been less if they had been so levied. And if the tract of land was in the city, a tax-deed on lots and blocks that had no existence would cast no cloud upon the title of the tract of land. Under the decisions of this court, the granting of an injunction to restrain the collection of a tax for the irregularities complained of here, would be held inequitable, and against public policy.</p> <p>submitted the same views presented in his brief in the preceding case of Challiss v. Covvm’rs of Atchison Co., (ante, p. 50;) and he added the following:</p> <p>One other question is here presented, as to the Spring Garden Addition lots: Before the assessment for the tax for which the sale was made, this property had ceased to be lots, and was only taxable as acres: §2, ch. 128, Laws of 1864, p. 241. There was then no assessment; the attempt made was a nullity: 32 Mo. 512; 42 Mo. 162; Gen. Stat. 1032, §§ 32, 36, 37, 39, 40. Challiss was only required to inquire for and to pay taxes on N. J of N.W.-j- seo. 7, T. 6, E. 21; yet here are patches of clouds to be scattered over his land, absolutely without any warning which he had any right to expect. Neither, after vacation, would such property be within the city, and subject to city taxation. It never was in the city except as an addition. Sec. 1, act of Feb. 12, 1858, defined the boundaries of the city; and §1 of act Feb. 11, 1859, makes additions, after plat filed, a part of the city, and as such subject to taxation. This tract went into the city by virtue of said act of 1859, when it ceased to be acres and became lots; and went out of the city by virtue of said ch. 128, laws of 1864, when it ceased to be lots and became acres. It was an addition only by virtue of the filing a plat, and of course, as it rested on this fact, it existed within the city no longer than the fact existed.</p>

Error from Neosho District Court. Action by Butler as plaintiff, against the county clerk, register of deeds, and county commissioners, as defendants. The district court, at the December Term 1873, overruled a demurrer to plaintiff’s petition, and from such decision the defendants appeal, and bring the case here for review. The facts are- fully stated in the opinion.

JfUrror from, Shawnee District Court. Swallow as plaintiff filed his petition against Thomas, as sheriff of Shawnee county, as defendant.

Error from -Montgomery District Court. At the December Term 1873 of the district court, Trouvalle, as plaintiff, recovered a judgment against the City of Independence for $168, and costs, and execution was awarded on the judgment. The city appeals, and brings the case here. The facts are fully stated in the opinion. 1. That portion of the ordinance which gives the city marshal one dollar for each dog killed and buried is void.

<p>Action ; Equity ; When Party must resort to Legal, not Equity Proceedings. A township issued to a firm certain bonds for the purpose of aiding said firm in erecting a certain mill and mill-dam; and in considferation for said bonds, C., a member of said firm, gave to said township his certain promissory notes and a mortgage. These notes and this mortgage were to be paid in money, or in said bonds, at the option of the payor of said notes and mortgage. No such payment, however, nor offer to pay, has ever been made. None of the bonds have ever been returned to the township, and no offer to return any of them has ever been made; and what has become of the bonds, since their delivery to said firm, has not been shown. Held, that an action in the nature of a bill in chancery, brought by C. against said township to have said notes and mortgage set aside and canceled, on the ground that said township had no power to issue said bonds, cannot under the circumstances of this case, even admitting that said township had no power to issue said bonds, be maintained; but the plaintiff must rely upon his ordinary legal remedy.</p>

Error from Leavenworth, District Court. Action by Smith to recover damages for injuries sustained by him by reason of his falling into an open cellar-way on one of the streets of the City of Leavenworth. Trial at the February Term 1874 of the district court. The facts were found and stated in a special verdict, which is quoted in full in the opinion, infra.

Error from Franhlin District Court. Foreclosure, brought by Evans, as administrator of the estate of L. F. Staples, deceased, upon a mortgage given him by Brown and two others to secure a part of the purchase-money for certain lands belonging to the Staples estate, sold them by Evans. The defendants claimed a set-off to amount of $197.28 paid by them, after their purchase, for taxes, interest, etc., due on the lands at the date of their purchase.

Error from Montgomery District Court. Action by C. D. Crane, LI. D. Crane, and A. J. Wightman, as partners, against Stone, for permitting a person in his custody as sheriff, on civil process, to escape. The petition is as follows: {Titled) “The plaintiffs, partners as ‘Crane & Wightman,’ complain of J. É.

Error from Bourbon District Court. Action brought by the county attorney, in the name of The State, as plaintiff, against G. W. Barkley and George Patterson, upon a forfeited recognizance.

Error from Doniphan District Court. Action by Amanda Corby, as executrix, etc., plaintiff, against McCrum and three others, defendants. This action was once before in this court, and is reported in 11 Kas. 464, where a full statement of the facts will be found. A new trial of the case was had in the district court, at the March Term 1874. On the trial, findings of fact were submitted to the jury, and a general verdict for the defendants returned.

Error from Harvey District Gowrt. Action commenced by Winsor as plaintiff, against Geo. W. Goddard and Byron 8. Goddard, as defendants, in the district court of Sumner county, to set aside a certain judgment. The venue was changed to Harvey county, where the action was tried at the April Term 1874. The facts are sufficiently stated in the opinion. The plaintiff brings the case here on error.

Error from Washington District Court. Scrafford obtained a judgment against Jardiche, at the August Term 1874, of the district court, for $200 damages, for breach of contract for the sale and delivery of corn. The material facts, and proceedings on trial, are stated in the opinion. Jardicke brings the case here on error.

Original Motion for Mandamus. The county attorney of Chase county, as relator, filed in this court a petition and motion for a mandamus,… Held: and that there was an entire absence of probable cause that he committed such offense; that the writ of habeas corpus was granted; that on the 5th of March, the county attorney filed an information in the office of the clerk of said district court against said Ferry, charging him with the same offense for which he was bound over by…

Error from Douglas District Court. Injunction, brought by Yarnold and fifty-eight other lot-owners of the city of Lawrence, as plaintiffs, against said city, and the treasurer of Douglas county, as defendants, to enjoin the collection of certain special taxes. The facts and proceedings sufficiently appear in the opinion, infra.

Error from Douglas District Court. Action by Harttmann as plaintiff, to quiet title to a lot occupied and claimed by him. Both parties claimed title in fee, and from the same common grantor. The district court, at the November Term 1872, gave judgment in favor of the plaintiff, and the Hutchinsons, defendants, bring the case here for review.

Error from, Morris District Court. Eeplevin, brought by Keyes, to recover possession of two head of neat cattle.

Error from Cowley District Court. Tarrant owned the undivided one-half of certain real property, which he occupied with his family, and which he claimed as his homestead. Swain owned a judgment against Tarrant, and caused Tart'ant’s interest in said land to be sold by the sheriff under an execution issued on such judgment. Tarrant moved to set aside said sheriff sale, on the ground that his homestead interest was exempt.

Error from Brown District Court. . Action by Reaves, and Jane his wife, to quiet their title to certain lands occupied and claimed by them as their homestead. Moore, defendant, claimed to be the owner in fee of said lands. The facts are sufficiently stated in the opinion, infra.

Error from Washington District Court. Upon his duly verified petition, Oswalt, in April 1874, •applied to the judge of the district court for a temporary injunction. The district judge refused to grant the injunction, and from this decision and refusal Oswalt appeals, and brings the case here on error.

Error from Anderson District Cowrt. Ejectment, brought by Alvey as plaintiff, against Setter as defendant. The facts, and nature of title claimed by each party, are fully stated in the opinion, infra.

Error from Wilson District Cou/rt. In May 1871 the county-seat of Wilson county was at Fredonia, having previously been duly located there. On the 23d of said May an election was held to relocate the county-seat of said county. Judicial proceedings growing out of this election, (11 Kas. 308 to 323,) resulted in the decision that by such election the county-seat was relocated and established at Neodesha.

Error from, Cherokee .District Court. Action by School District No. 72, Cherokee county, as plaintiff, against Hiram JRiddel and George W. JRiddel as defendants, on a school-district treasurer’s bond which the defendants executed as sureties for their principal, who was appointed to fill an unexpired term.

Error from Cherohee District ■ Court. Ejectment, brought by the Granby Mining and jSmelting Co., against Jay, and two others, to recover possession of a certain quarter-section of land'. Held: upon the showing made by Jay, that he had no rights under that act, and refused his application. Jay appeals, and brings the case here on error.

Error from Saline District Court. At the March Term 1874, Donegan, in an action in which he was plaintiff, and wherein Carlin was defendant, recovered a judgment against Carlin for $1,077.23, and costs.

<p>Liability or County, on Implied Contract. Where the admitted facts are, that the. county treasurer occupied for his office a room belonging to plaintiff; that the defendant made no other provision for such office than by suffering him to occupy said room, and that the plaintiff gave notice pending the occupation to at least two of the members of the county board that- he should expect- and demand compensation for its use, and that said occupation was with the knowledge and consent of the defendant, held, that the defendant was liable for the value of the use of said room, although there was no express contract between the plaintiff and defendant that he should receive compensation therefor.</p>

Error from Wabaunsee District Court. Lewis filed his petition for a divorce, alleging his intermarriage with defendant at Edinburgh, Scotland, in May 1859; that he had resided in Kansas more than a year, and was now a resident of Wabaunsee county; that he had at all times been a faithful and obedient husband; that defendant, disregarding her duties as a wife, had been willfully absent from plaintiff for more than one year last past, without any cause or justification…

Original Proceedings in Mandamus. The passage and approval of the act dividing Howard county, and creating the counties of Chautauqua and… Held: 1 Kas. 90, 94, that the legislature which passed that act was a valid legislature, legally in session, and, under § 3 of the schedule to the constitution, became and was invested with the lawful powers of a legislature under the constitution, (which had then just gone into effect by the admission of the state into the Union,) and…

Error from Linn District Court. Ejectment, brought by Cynthia Jackson, and her three sons, James, John W., and Thomas, the widow and children of Thomas Jackson deceased.

<p>Awiuming Judgments, Where Error not Affirmatively Shorn. In an action of replevin, tried by a justice of the peace, where it is difficult to determine from the record in whose favor the justice found, or intended to find, and where the justice rendered judgment in favor of the defendant for three dollars damages, and rendered judgment in favor of the plaintiff for costs, and did not render any judgment concerning the property in controversy, whereupon the defendant took the case to the district court on petition in error, and the district court reversed the judgment of the justice of the peace, and then rendered judgment in favor of said defendant for his costs both in the district court and the justice’s court, held, that the judgment of the district court will not be disturbed on the application of said plaintiff.</p>

Error from Cloud District Court. Action by Nash against Campbell, as county treasurer, for an injunction. In the absence from the county of the district judge, Nash, in January 1874, applied to the probate judge, pursuant to the provisions of § 239 of the civil code for a temporary injunction; and from the refusal of said judge to grant said order, Nash appeals to this court.' filed an elaborate brief, arguing that plaintiff was, under the law, entitled to an injunction.

Error from Brown District Court. Injunction, brought in the name of The State, upon the relation of A. L. Williams, attorney-general, to restrain the collection of certain taxes.

Error from Leavenworth District Court. The pleadings, proceedings, and facts, are sufficiently stated in the opinion, infra. Pendery recovered judgment at the November Term 1873, and Grant brings the case here. Under § 128 of the code, the new matter in the answer stood for true, until leave was given to reply, and we claim that could not lawfully be done after the jury was impanneled. The case should be considered as though no reply had been filed.

Errm' from Bourbon District Court. Sweeney recovered judgment, at the December Term 1873 of the district court, C. O. F., judge pro tern., presiding. The defendant, the Coal and Mining Company, brings the case here for review. The opinion contains a full statement of the pleadings and facts..

Error from Cherokee District Court. Foreclosure, brought by Brewster against the widow and children of Leonard C. Madden, deceased. The mortgage was given by said Leonard C., and Catharine C. his wife, February 17th 1871, and was upon four lots in the city of Baxter Springs, and eighty acres of land then held by said Madden under the preemption act. The district court, at the June Term 1873, held said mortgage invalid as to the eighty acres, and gave judgment accordingly.

Error from Brown District Court. Ejectment, brought by Johnson, to recover the possession of a quarter-section of land. The facts are stated in the briefs and opinion. Trial at the August Term 1873. Verdict and judgment for plaintiff, and defendant Babbitt brings the case here. Babbitt, defendant below, claimed title to the land under a tax-deed executed and recorded in June 1864, and claimed that the plaintiff’s right of action was barred by the statute.

Error from Doniphan District Court. All the facts in this case are stated in the opinion of the court. Moore as plaintiff, had judgment at the March Term 1873, and Churchill brings the case here.

Error from, Nemaha District Court. Injunction, brought by Spencer, as plaintiff, against Joint School District No. 6, of Nemaha and Brown Counties, as defendant, to restrain the use of the district school-house for other than school purposes.

jError from, Doniphan District Court. Action by Poynter to quiet his title to the N.J of N.W.jr of Sec. 8, Township 3 south, Range 20 east, in Doniphan county.

Error from Brown District Court, In an action in a justice’s court, wherein Cowley was plaintiff and one George Parker was defendant, a… Held: “that the 1,000 bushels of corn in controversy belonged to said Charles Cowley, Jr., and gave judgment accordingly.” Dicleenson & Bro. appeal, and bring the case here on error. If Cowley acquired any right by virtue of said proceedings, by our laches we have lost our right to the property in controversy. Did they acquire any right?

Error from Clay Eistriot Court. Appeal, by Starkweather and wife, from an order of the district court, at the May Term 1874, overruling a motion to set aside the sheriff’s return of service of a summons. The facts are set forth in the opinion.

Error from, Riley District Cowrt. Action by Coffin, as plaintiff, whose petition alleged, “that the said plaintiff, on the 29th of April 1872, by the consideration and judgment of the circuit court of the state of Illinois, begun and held at the court-house in Geneva, in the county of Kane, on said 29th of April, recovered against the said Orlando Dodge, the sum of $511.90 his debt, and his costs in and about his suit expended, taxed at $280, which said judgment, a copy of…

Error from Washington District Court. The district court, at the September Term 1874, refused an injunction, restraining Patrie, as sheriff, from selling property under an execution held by him. The facts and proceedings are fully stated in the opinion. Jaedicke, plaintiff, brings the case here.

Error from, Atohison District Court. Ejectment, brought by Albert G. Smith and two others as plaintiffs, against John T. Smith and another, as defendants, for a lot in the city of Atchison. Plaintiffs’ petition alleged title in fee and right of possession in plaintiffs, and wrongful withholding by defendants.

Error from Cowley District Cowrt. On the 14th of February 1872, and for six months next preceding, and until the 20th of April next following, one B. K. Davidson claimed eighty acres of land situate… Held: (15 Johns. 464,) that judgments did not bind after-purchased lands, where seisin was instantaneous. In the present case, seisin was instantaneous, having been conveyed to plaintiff even before title acquired by the vendor.

Information for murder in the second degree, filed in June 1874, against defendant George Potter, and two others.

Complaint before a justice of the peace, of Doniphan county, on oath of one A. C. J., charging defendant with having, in a certain building in the city of White Cloud, on the 1st day of June 1875, sold “spirituous, vinous, fermented and other intoxicating liquors to one G. S., one O. O., and one T. B. without having at the time a license as grocer, dramshopkeeper, or tavern-keeper, obtained in accordance with the provisions” of the dramshop act.

Error from Douglas District Court. . At the August Term. 1873, Fults as plaintiff recovered judgment against Bainter and Barnett, defendants.

Error from Osage District Court. Two actions were brought by Davis against Fillmore. 'Both were tried at the November Term 1873, and in each action judgment was given for the defendant. Plaintiff brings both here — the petitions in error being filed March 7th, 1874.

<p> Error from Jaekson District Cou/rt. </p> <p>The district court, at the December Term 1873, affirmed the judgment of a justice of the peace, in favor of McFadin, and against Douglas. Douglas brings the case here on error for review. The facts, and proceedings, are fully stated in the opinion.</p>

Error from Saline Eistriet Cowrt. Godfrey recovered judgment against Eastman, at the March Term 1874, and Eastman brings the case here for review. The alleged error, and all necessary facts, are stated in the opinion.

Error from Jefferson District Court. Two mortgages on the same tract of land lying in Jefferson county were executed by John Branscom and wife, the owners — one to John W. Wood, for $2,750, dated October 11th 1867; the other, to Warner, Mowry & Hawkins, copartners, for $4,348, dated October 31st 1871.

Error from Johnson District Court. Davenport filed a claim in the probate court of Johnson county against the estate of one M. D., deceased. The claim was resisted by Ogg, the executor, and a trial was had before the probate judge and a finding for the claimant. The case was appealed to the district court, where a trial was had at November Term 1873. Judgment was given for the executor, and Davenport appeals, and brings the case here on error.

<p> Error from Bourbon District Court. </p> <p>At the December Term 1873, C. O. F., judge pro tern. presiding, Theresa Thieme, as administratrix, recovered judgment against Mehnert and wife. A new trial was refused, and defendants bring the case here. The facts are stated in the opinion.</p>

Error from Bourbon Bistrict Court. Armstrong had judgment upon default at the March Term 1874 of the district court, J. M. G., judge pro tern., presiding. Knowles, defendant, brings the case here on error. The errors alleged, and the facts, are sufficiently stated in the opinion.

Error from, Greenwood District Court. Replevin, brought by the Town Company against Humphrey, before a justice of the peace, to recover possession of an office desk, of the value of thirteen dollars. The defendant justified, and claimed possession, as a constable, under a writ of execution, which is copied in full in the opinion, infra.

Error from Labette District Court. A referee’s report in favor of Boulter was confirmed, and judgment thereon given at the May Term 1874 of the district court. Hamlyn brings the case here. All necessary facts are stated in the opinion.

Error from, -Brown District Court. Ejectment, brought by Holcomb. Trial, and judgment for the defendant, at the February Term 1874. All necessary facts are given in the opinion. The plaintiff brings the case here.

Drror from Cloud District Cowrt. Neitzel commenced his action in a justice’s court, and filed his bill of particulars as follows: {Title.) “F. W. Neitzel, the plaintiff, claims and demands of J. M. Hagaman the defendant the sum of $179.35, for— 146 feet of fence, of the value of.....................................$73.00 22 loads of stone, of the value of.................................. 44.00 75 bushels of lime, of the value of................................ 20.50…

Error from. Cloud District Court. Action by Joy, against Wheeler, Tisdale, Parher, JEJawIcs and Terry, partners as the “Southwestern Stage Company,” to recover damages for injuries sustained by him by the uncoupling and overturning of defendants’ stage-coach, while plaintiff was being carried therein as a passenger. Trial at the November Term 1874. Verdict and judgment- for plaintiff, for $1,800. New trial refused, and defendants bring the case here on error.

Adams and another were charged before the police judge of the city of Olathe, on the oath of E. M. F., with having “kept open” their dramshop or saloon, in said city, “on the 4th day of July 1874,”… Held: and adjudged by the court to be in conflict with the laws of the state, and said ordinance was ruled out.” Other findings are copied into the opinion, infra. The defendants were dispharged, and the city brings the case here by appeal.

<p>Cbiminai, Law; Official Oppression; Ignorance of Officer; Oi'imincd Intent. In a trial upon an information, under $ 207 of the crimes act, against a justice of the peace, charging willful and malicious oppression, partiality, misconduct, and abuse of authority, “in requiring an excessive bond on an appeal from a judgment rendered by him, and in refusing to approve a surety on said bond who was in fact sufficient,” it is error to instruct the jury that “gross ignorance of law in a case like this amounts to criminal intent.”</p>

Brown was convicted of murder in the second degree, at the June Term 1874 of the district court, and sentenced to imprisonment in the penitentiary for the term of fifteen years, and he brings the case here on appeal, for review. The error complained of, and the facts in relation thereto, are stated in the opinion.

At the January Term 1875 of the district court, Whitby was arraigned for plea upon an information filed against him, by which information it was intended to charge defendant with the crime of burglary in the first degree. Defendant pleaded- “ guilty” to the facts charged, and then moved in arrest of judgment, for that said “information did not state facts sufficient to constitute a public offense.” This plea was overruled, and defendant was sentenced to imprisonment.

At the May Term 1875 of the district court, Nulf was found guilty of the offense of grand larceny, and was sentenced to the penitentiary for three years. From this conviction and sentence he appeals to this court. The information was prepared and signed by the proper officer: Gen. Stat. 284, § 136. This section makes the county-attorney the prosecuting officer for all criminal actions in which the state is' a party.

Information for murder. Trial, and verdict of guilty, at the November Term 1874. A motion for a new trial was made, and continued until the March Term 1875, when a new trial was refused, and defendant was sentenced to imprisonment in the penitentiary for twenty years. From this sentence Bohan appeals.

Taylor, alias “ Peter Bergman,” was charged by informaation with the larceny of fifteen head of neat cattle, “ belonging to one Michael Wandler.” Trial and conviction at the April Term 1875 of the district court. From the judgment and sentence against him, Taylor appeals, and brings the case here for review. The only question decided here, and the facts in relation thereto, are stated in the opinion.

Error from Marshall District Court. Judgment in favor of the defendants, upon sustaining demurrers to the plaintiff’s petition, was given at the November Term 1873 of the district court, and Kuhn, plaintiff, brings the ease here on error. All the material facts are stated in the opinion. The .petition is sufficient to compel specific performance, and to procure a sale of the land for the satisfaction of the unpaid purchase-money.

Error from Bourbon District Court. Action by the First National Bank, to recover from Samuel Kohn and Jacob Weil, as partners, certain moneys paid to one Ruhman as their agent. The facts are fully stated in the opinion. The Bank, at the September Term 1873, (C. W. B., judge pro tem., presiding,) recovered judgment for $1,108.89, and costs, and Kohn & Wdl bring the case here for review.

Error from Bourbon District Court. The City of Fort Scott brought its action to recover from the Missouri, Kansas &, Texas Bailway Company, the sum of one hundred thousand dollars, for alleged breach of contract, upon the statement of facts set forth in plaintiff’s petition, in substance as follows: “ The City of Fort Scott is, and was at the time mentioned therein, a city of the second class, organized under the laws of Kansas.

Error from Johnson District Court. Eeplevin. The property in controversy was taken on the order of delivery, and delivered to the plaintiff. Trial at the November Term 1873. Verdict and judgment for defendant, for a return of the property, or for its value if return could not be had, (the value being assessed at $105,) and for $33.33 damages for its caption and detention. The plaintiff brings the case here.

Error from. Saline District Court. The material facts, and the proceedings in the district court, are sufficiently stated in the opinion, infra. Donegan, plaintiff, had judgment, at the March Term 1874, for $1,077.23, and costs, and Carlin, defendant, brings the case here on error.

Original Proceedings in Mandamus. On the 7th of September 1875, Fred. Held: until about the 13th of March 1875, when you, the said M. E. Woodford, Wm. Worden, and W. FI.

Error from Neosho District Court. Cain, as plaintiff, obtained a decree against Mrs. Isabel Johnson and another, at the December Term 1873 of the district court,'that certain lands be sold to satisfy plaintiff’s claim against the estate of defendants’ ancestor. All the necessary facts are stated in the opinion. Mrs. Johnson brings the case here on error for review. . 1. Cain’s action cannot be maintained.

Error from Allen District Court. Eokeclosuke of mortgage, brought by Lapham against , Etta Jones and Maggie Murray. The mortgage was executed by W. H. Hull, who never had the legal title to the mortgaged premises, but only an equitable title under a bond for a deed. .A decree of foreclosure, and for the sale of the mortgaged premises, was entered at the March Term 1874. The defendants bring the case here on error. 1.

Error from Neosho District Court. Eepleyin for 2120 feet of lumber, brought before a justice of the peace, by Mary:A. Shellabarger, a married woman. Nafus, defendant, as constable, had taken the property upon process against plaintiff’s husband. The case was appealed to the district court, and was there tried at the December Term 1871. The material questions, and the instructions in relation thereto, are fully stated in the opinion, infra.

Error from Smith District Court. Replevin, brought by Kennedy against A. W. Green, Nicholas Clemens, Judson McNall, Charles McNall, Samuel Beck, C. P. Newell, and Webster McNall, to recover possession of a portable steam saw-mill, valued at $2,000.

jError from Allen District Court. Townsend brought his action to recover damages sustained by him by reason of an alleged trespass to his person. The injury was actually committed by one of three, all of whom were sued jointly. A separate trial was had as to two — Williams and Parsons, plaintiffs in error. The transcript contains the following as the “special verdict” returned by the jury: “1.

Error from Labette District Court. The district court, at the March Term 1874, rendered judgment in favor of Condon and others, defendants in error, in certain foreclosure proceedings involving the rights of plaintiffs in error and defendants in error, where the principal questions between the parties was as to the priority of their respective liens on the same real property.

Error from Nemaha District Court. ■ Judgment was given in favor of tbe defendant, at the April Term 1874 of the district court, upon his demurrer to the plaintiff’s petition. The plaintiff brings the case here on error. All the necessary facts are stated in the opinion.

Error from Jachson District Court. Action by Able to recover a balance of $100 due him upon the sale of certain cattle.

Error from Davis District Court. Action by plaintiff for partition of certain real property. All the estate for which partition was .asked was the property of one Abraham Barry at the time of his marriage with the defendant. Said Abraham died without issue, in October 1873.

Error from Sedgwick District Court. A single question is presented and decided in this case, as to which the facts and proceedings fully appear in the opinion. The district court, at the June Term 1874, gave judgment in favor of Lindsay, against Royal and wife, and another, defendants. The defendants bring the ease here for review. The answer clearly sets up a valid agreement for an extension for one year of the time for the payment of the note in suit.

Error from Bourbon District Court. At the June Term 1874 of the district court, W. C. S., judge pro tem., presiding, defendants Frank J. and Win. R. Robinson applied for an order that a certain judgment theretofore recovered in said court against them in favor of Wilson, be discharged, and satisfied of record. This application was refused, and the Robinsons bring the case here for review. •

Error from Cloud District Cowrt. Replevin, for an “American organ,” brought by Sumner. Trial, and verdict and judgment for defendant, McFarlan, at the April Term 1874. Sumner brings the case here. The sale by Sumner to McNulty was a conditional sale only, or a contract of lease. The notes were given for use of the organ, and their payment was a condition precedent to the transfer of the title.

Error from Atehison District Court. This case was here before, and is reported in 9 Kas. 684, where a full statement of the facts will be found. It was brought here then by Challiss, who complained of the order of- the district court overruling his motion for leave to correct a record by supplying a certain “proof of publication,” which should have been filed in 1862.

Error from Greenwood District Court. Lantier recovered a judgment against Ballinger, at the April Term 1874 of the district court, for $837, and costs, and Ballinger brings the record here for review. The pleadings, proceedings, and facts, are fully stated in the opinion. 1. The court erred in overruling the motion of the plaintiff in error to dissolve the attachment.

Error from Sedgwioh District Court. An action to foreclose a mortgage was brought by Charles McDougall as plaintiff, against Egbert J. Blood and wife, as mortgagees. Held: that an inchoate lien — a lien not yet in existence, a lien which may never exist, and which in truth does not become a lien until January 29th 1872 — can relate back and take precedence of a mortgage duly recorded before the commencement of the work upon which the lien is founded ?

Error from Sedgwick District Court. Shellabarger & Leidigh, plaintiffs, claimed a sub-contractors’ lien upon Lot No. 68 on Main street, in the city of Wichita, owned by Isaac Thayer and George Shipton, two of the defendants, for lumber sold to one H. H. Lindsay, to be used in the construction of a building which Lindsay had contracted with said Thayer &'Shipton to erect on said lot.

<p>Will ; Refusal of Widow to Accept under Will; Effect as to Others. Where a widow fails and refuses to accept under the will of the deceased husband, but elects to take under the law of descents and distributions, such failure and refusal does not render the will inoperative further than as between herself and others claiming portions of the estate. As between other persons, the will will be enforced, as near in accordance with the intention of the testator, as it can be so enforced.</p>

Booth, ail agent of a foreign life-insurance company, was prosecuted before the police court for a violation of an ordinance of The City of Leavenworth requiring foreign insurance companies to pay certain license-taxes for the privilege of doing business in said city. The action was removed by appeal to the criminal court,* where a trial was had at the December Term 1874. It was a test case, for the purpose of determining the validity of said city ordinance.

Error from Riley District Comí. Cowen brought suit upon a foreign judgment, and recovered judgment thereon, at the September Term 1873, for $161.07, and costs. Haynes, defendant, brings the case here on error.