Volume 16 — Kansas Reports

Information for forgery. The questions raised in this case are fully stated in the subjoined opinion. The rulings appealed from were made by the district court at the December Term 1875.

Error from Eiddnson District Court. Action by Mear to recover from Hoover damages for injuries done on the premises of Mear by the stock of Hoover, between the 9th of December 1872 and 2d of January 1873. It was brought before a justice of the peace in January 1873, and appealed to the district court, and there tried at the May Term 1873, on an agreed statement of facts.

Indictment for grand larceny, found at the August Term 1875, charging that the defendant, at the county of Washington, “on the 8th of June, 1871, one bay gelding, four years old, about fourteen and one-half hands high, of the goods and chattels of one M. S., unlawfully and feloniously did steal, take and carry away,” etc. The indictment also alleged that the defendant was ábsent from the state, and so concealed himself that he could not be found, from September 15th 1871, to…

Error from Saline District Court. Action by Van Volkenburgh, and four others, as partners, against the maker and guarantors of the following promissory note: $425.88. Salina, Kansas, Nov. 8, 1872. Six months after date, we promise to pay to the order of P. Van Volkenburgh & Co., four hundred and twenty-five 88-100 dollars, at the Bank of D. W. Powers & Co., Salina, Kansas, valué received.

Error from Ottawa District Oowrt. At the April Term 1874 of the district court, in an action to foreclose a mechanic’s Hen, Davis recovered judgment against Thom for $149.23, and obtained a decree for the sale of certain real property. •Thom moved for a new trial on the ground of newly-discovered evidence, but the transcript does not contain any evidence offered to support said motion. The motion was overruled, and Thom brings the case here.

Error from, Washington District Court. Ejectment, brought by Williams, as plaintiff, to recover possession of a certain lot in the town of Washington. Answer, denial of plaintiff’s title. Trial at the August Term 1874.

An indictment was found by the grand jury, in the following words: State.op Kansas, Greenwood County: In the district court of Greenwood county, for the April Term in the year 1875.

Error from Franklin District Court. The facts in this case sufficiently appear in the opinion. The district court, at the November Term 1871, upon defendants’ default, gave judgment in favor of Miner, as plaintiff,' against Walter G. Pearson only, one of the two defendants sued, and duly served. Because such judgment was not given against both defendants, the plaintiff brings the case here on error.

Error from Miami District Cowri. The opinion contains a full statement of all facts necessary to an understanding of this case. The district court, at the September Term 1873, W. F., judge pro tern., presiding, gave judgment in favor of Ewrthmier, and Patton brings the case here on error.

<p>Courts op Other States ; Powers and Jurisdiction; Presumption. It will be presumed, in tbe absence of evidence to the contrary, in favor of courts of general jurisdiction of sister states, that they have the authority they assume to exercise, and that the modes of procedure pursued by them, though different from those established by the laws of this state, are authorized by the laws of the states in which they act.</p>

Error from Fra/nklin District Court. Esterly brought suit against Niccolls on a note given for $240, dated October 15th 1870, signed by Geo. H. Stewart, A. L. Niccolls, and S. B. McCord. Plaintiff claimed a balance of $161.07. Answer, that Stewart was the principal debtor, and that he (Stewart) had paid said note in full. Trial at the November Term 1874. Finding and judgment in favor of the plaintiff for $117.75, and Niccolls brings the case here.

■ Error from Leavenworth District Court. Action by Gordon on an account for the sale of six barrels of whisky, amounting to $547.48, on which payments had been made and credited to amount of $229.50, leaving a balance of $317.98, for which plaintiff demanded judgment. Answer, first, a general denial; second, that said sales of liquor were made in Leavenworth, and plaintiff had no license from the city of Leavenworth- authorizing the selling of liquors.

Error from Cherohee District Court. Action by Livingston on an agreement set out in hcsc verba in the opinion. Answer, general denial, verified by affidavit. Trial at the August Term 1873. Judgment in favor of Livingston for $377.40, and costs, and defendants bring the case here on error.

<p> Error from Douglas District Cov/rt. </p> <p>Replevin for 26 bars of railroad iron, brought by Shoemaker, Miller & Co. as plaintiffs, against Wm. A. Simpson, and two others. The opinion, infra, contains a full statement of the facts and proceedings. Trial by the court, without a jury, at the June Term 1871. Findings and judgment in favor of the defendants, and plaintiffs bring the case here for review.</p> <p>submitted, that as the iron was not so affixed to defendants’ freehold that it could not be removed without injuring the freehold, and as it was not placed upon the premises by plaintiffs, or with their knowledge or consent, and as it had been removed by the defendants before the action was brought, the plaintiffs had not lost their right of property, nor their right to the possession. The whole law upon this subject is laid down in the American notes to the case of Elwes v. Mawes, 2 Smith’s Leading Cases, 248, which establish the following propositions: lst.-If a chattel is annexed to the freehold so as to become a part of the realty, it may be severed from the freehold and reinvested with the character of personal property by the act of the owner of the land. 2d.-The intention of the person by whom the annexation is effected is the paramount consideration; and if .the intention was not to incorporate the article or structure permanently with the inheritance, but only for a temporary use, without regard to increasing the value of the land upon which the chattel is placed, and it can be removed without injury to the land, it is not a fixture, and may be removed by the owner; and if the removal is resisted he may bring trover or replevin for the article. 3d.-Although a chattel may have become a fixture, nevertheless, if it be afterward severed from the freehold it again becomes a chattel, and may be recovered in replevin by the rightful owner. 4th.-There must not only be an annexation to the freehold, but the thing annexed must be adapted to the purposes of the freehold; and unless both conditions unite, such chattel does not become incident and appurtenant to the real estate. If -it is attached merely for a temporary purpose or the more complete enjoyment and use of it as a chattel, then it remains a chattel. Hellaway v. Eastwood, 6 Excheq. 295; Voorhies v. Magennis, 48 N. Y. 278; Potter v. Cromwell, 40 N. Y. 288; Teaff v. Hewitt, 1 Ohio St. 511; Fryatt v. Sullivan, 5 Hill, 116; 17 Vt. 533; 33 N. H. 66.</p> <p>2. No demand was necessary, because, first, defendants’ possession never was lawful, as they took by the act of a wrongdoer; and secondly, even had they been entitled to a previous demand, they have waived it by setting up title in themselves. 10 Mich. 357; 3 Hill, 360; 20 Mich. 104; 35 111. 417; 21 Ark. 422; 34 Miss. 385; 24 Iowa, 322.</p> <p>Chattels annexed to real estate become a part thereof, and the owner of the soil, by virtue of the annexation, becomes the owner of the fixture. “It is a maxim of great antiquity, that whatsoever is fixed to the realty is thereby made a part of the realty to which it adheres, and partakes of all its incidents and properties. By the mere act of annexation, a personal chattel immediately becomes part and parcel of the freehold itself.” “Every case in which there is a right of severing a thing from the freehold by virtue of the law of fixtures, is considered as an exception to this general rule.” Amos &, Eerrard on Fixtures, 9,10; 6 Pacific Law Reporter, 62; 1 Central Law Journal, No. 11, page 124; 15 Ind. 142; 2 Kent’s Com. 362, 363.</p> <p>2. A railroad is real estate, and rails of iron laid down in the construction of the road are thereby changed to real estate. Galveston Rid. Co. v. Cowdry, 11 Wallace, 464, 482; Hunt v. Ray State Iron Co,, 97 Mass. 279; Strickland v. Parker, 54 Me. 263.</p> <p>In Amos & Ferrard on Fixtures, page 13, it is said: “In Brooke’s Abr., Tresp., it is laid down, that if a piece of timber that had been illegally taken from J. S. has been hewed, trespass does not lie against J. S. for retaking it; but if a piece of timber, which was illegally taken, have been used in building or repairing, this, although it is known to be the piece which was taken, cannot be retaken, the nature of the timber being changed, for by annexing it to the freehold it became real property.” Here there is no intimation that the timber might be removed if it could be done without injury to other parts of the realty. But the doctrine is put squarely on the ground that it is realty. The same authority, on the same page, says: “Other and more recent authorities afford some singular illustrations of the principle under consideration. In Lord Raymond, p. 738, is the following case: “Sparks v. Spicer, (Mich., 10 Will. Ill;) Per Holt, C. J. If a man be hung in chains upon my land; after the body is consumed, I shall have gibbet and chain. Said upon a motion for a new trial.” These ancient authorities, we believe, have not been judicially controverted. And it is hardly credible that the gibbet and chain above mentioned, was intended as a permanent improvement to the realty on which it was erected. Nor is it credible in any case that a trespasser makes annexations with a view to improve the realty.</p> <p>3. Nor did the disannexing of the iron by Simpson divest him of title thereto. There is no doctrine known to the law by which the owner loses title to real estate by converting it into personalty. If Simpson owned the iron as a part of the realty, he might use it as he chose without losing his title. Owning of .the realty, which he owned in fee, he owned the iron by the same title; and such title implies an absolute right to use and dispose of it at will. 6 Gray, 536.</p> <p>4. The possession by Simpson of the iron, even if he were not the owner, was in every view innocent, it having been placed upon his land in his possession without his agency. And where the possession of the defendant is innocent, a demand must always precede an action of replevin. Where one has acquired such possession without any unlawful act on his part, and holds it, honestly believing he has a right to hold it, it should be demanded of him before putting him to the cost of an action. And such we think is the great preponderance of authority. Newman v. Jenne, 47 Maine, 520; Barrett v. Warren, 3 Hill, 348; White v. Brown, 5 Lansing, 78.</p>

Error from, Montgomery District Court. Foreclosure of mortgage,, brought by Nichols against Wm. Ii. Overacker and Sarah E. Overacker. The facts and proceedings in the district court are fully stated in the opinion. Trial and judgment at the August Term 1873. The plaintiff, Nichols, brings the case here for review.

Error from Miami District Cowrt. Action by Ward, in her own name as plaintiff, against Crowell and two others, on a bond given by Shiveley as guardian, and executed by the other defendants as sureties. The defendants demurred to the petition, alleging that plaintiff had no legal capacity to. sue on said bond in her own name, and that the action should have been in the name of the state.

Error from Mitchell District Court. Action by Cawlcer against Eshinlca and two others. The petition alleged that plaintiff and defendants had executed their certain joint note for $300, and interest, which plaintiff had paid; that the amount so paid by him, including interest, was $387.84; that said sum was the joint debt of plaintiff and defendants, and he claimed to recover from defendants three-fourths of said sum, $290.88.

<p> Error from Washington District Court. </p> <p>Replevin, brought by Milne, as plaintiff, and as owner of the property, to recover the possession of a span of mules and a double-wagon. Hallowell, defendant, claimed title in himself. Trial at the December Term 1874. The facts, and the instructions complained of, appear in the opinion. Verdict for plaintiff, and defendant brings the case here on error.</p>

Error from Douglas District Cowrt. Action by Haley, to recover for work and labor. Trial and judgment for plaintiff at the October Term 1874. Mugan brings the case here on error.

Original Proceedings in Mandamus. On the verified petition of George, showing that he was the owner and holder of two bonds (Nos. 11 and 12,) and the coupons thereof, of a series of twenty bonds of $500 each, issued by The Township of Oxford, in Sumner county, April 15th 1872 — that the coupons on said bonds which became due and payable October 15th 1874 remained unpaid, and the proper officers of said Oxford township neglected and refused to levy a tax on the taxable…

Information for murder in the second degree, filed originally in the district court of Atchison county, where a trial and conviction were had. The defendant appealed to this court, when such conviction was reversed and a new trial ordered. (The State v. Isaac Potter, 13 Kas. 414.) After such reversal a change of venue was taken from Atchison county to Leavenworth county.

Original Proceedings in Mandamus. Lewis filed in this court his verified petition for a mandamus against the Board of Comm’rs of Marshall Co., and J. G. Molntire, the County Cleric of said county.

Original Proceedings in Mandamus. Wood, as plaintiff, filed in this court his verified petition for a mandamus to compel the Mayor and Oity Cowncilmen of the Oity of Topeka, to enter of record the fact that plaintiff had been duly elected to the office of justice of the peace of said city at the city election held on the 6th of April 1875, and to cause such election of plaintiff to be duly certified by the city clerk to the county clerk of Shawnee county.

Error from Cherokee District Court. Action by Pucker & Bro. plaintiffs, as assignees of Charles Beuro, to recover $114.53, and interest. In 1871 Jolm Polster caused Beuro to be arrested on a charge of grand larceny. When arrested Beuro had in his possession said sum of $114.53, which was, by order of a justice of the peace, taken and delivered to Polster, the prosecuting witness.

Error from Atchison District Court. Prior to and during the year 1864 one M. Yocum owned and occupied a certain quarter-section of land in Atchison county, one J. S. Yocum a certain eighty-acre tract, and one J. W. Baldwin a certain twenty-two acre tract. Through these tracts the right of way, one hundred feet wide, was laid off and condemned for the Atchison & Pike’s Peak Railroad, was paid for, and the railroad constructed, as stated in the opinion, infra.

Error from Labette Eistriet Court. Action by the' Burlington National Bank, as plaintiff, against Bedell as defendant, upon the following promissory note: $170.00. Chetopa, Kansas, Sept. 18th, 1872.

<p> Error from Saline District Court. </p> <p>The Railway Company brought its action in June 1868, to foreclose a mortgage-. -- It made Mary A. Bickerdyke, H. D. Rush, Alonzo B. Chapman, Lorenzo D. Bower, Benj. Howard, Osear Seitz, Miller & Stevens, Jaeob De Witt, Hamlin & Woolley, and Palmer, Fuller & Co., defendants. Mrs. Bickerdyke was the mortgagor. The other defendants were joined as having some claim or lien on the mortgaged premises subsequently to the claim of the plaintiff. Trial at the October Term 1870 of the district court, J. H., judge pro tern., presiding. An agreed statement of facts was filed, among which are the following:</p> <p>“In 1867 the defendant Mary A. Bickerdyke commenced erecting a building for a hotel, and other buildings appurtenant thereto, for herself, on the lots of the plaintiff company, described in the petition in this case, their title thereto then being of record. Said hotel building was finished in March 1868. The money furnished by the plaintiff for materials for said building, and for' the furniture purchased and owned by said Mary A. Bickerdyke, was furnished and paid at various times during the summer of 1867, and previous to November 4th 1867. Said building was erected with the knowledge of the plaintiff, and on the understanding that on the erection of said building, and on the payment of all her indebtedness to the plaintiff, said Mary A. Bickerdyke should have a title to said lots, but without any definite contract, until the giving of the mortgage specified in the petition. Said mortgage was given by said Mary A. Bickerdyke on the 4th of November 1867, to said plaintiff, on said lots and hotel-building and furniture, for the sum of $7,512.85, the amount of money previously advanced as aforesaid by the plaintiff, and payable as stated in said petition and mortgage.</p> <p>“The defendants hereinafter named have each recovered a judgment in this court against said Mary A. Bickerdyke for the several amounts hereinafter named, and each on a contract -with said Mary A. Bickerdyke, and for labor done and materials furnished on and for said buildings on said lots. Each of said defendants did within six months after the completion of said buildings, file a mechanic’s lien on said buildings for said labor and materials, and each commenced his action within twelve months after the completion of said buildings.</p> <p>“The following is a statement of the judgments obtained by said defendants: H. D. Rush, March term 1868, for $1289.93; Palmer, Fuller & Co., September term 1868, for $2510.15; A. B. Chapman, March term 1869, for $626.69; L. D. Bower, March term 1869, for $354.30; Benj. Howard, September term 1868, for $213.87; Oscar Seitz, September term 1868, for $165.89; Miller & Stevens, September term 1868, for $400; and Jacob DeWitt, September term 1868, for $227.57. Said judgments of H. D. Rush, and Palmer, Fuller & Co., have been sold and assigned to the plaintiff.</p> <p>“It is agreed that the following claims and parts of claims, included in the foregoing judgments, namely, B. Howard, $213.87; Palmer, Fuller & Co., $359.43; A. B.' Chapman, $68; L. D. Bower, $198; Oscar Seitz, $28.50; Miller & Stevens, $400, and Jacob DeWitt, $169.87, originated since the date of the plaintiff’s mortgage; and that all the claims of said defendants, as first above stated, exclusive of the several claims and amounts last above stated, originated before the date of the said mortgage.”</p> <p>The district court held that the lien of the Railway Company was the first and paramount lien on the mortgaged premises, and a decree was entered that said premises be sold, “and the proceeds of said sale be first applied to the payment of the costs of suit; second, to the payment of the plaintiff’s judgment and claim in full; and that the residue be applied to the payment of the claims and judgments of other lien-holders and judgment creditors pro rata,” specifying such other liens in order and amount as first stated in the agreed facts. From this decree defendants Seitz, Chapman, Howard, Miller & Stevens, and De Witt, appeal, and bring the case here on error. The Railway Company only is made defendant in error.</p> <p>The mechanics’ liens were prior to the defendant’s mortgage. Defendant in error is estopped from denying the plaintiffs’ claims. The liens of plaintiffs in error, prior and subsequent to defendant’s mortgage, should be distinguished. The personalty should be deducted from the mortgage of defendant in error.</p> <p>The mechanics’ liens are prior to the mortgage-deed. The mechanics’ liens were based on the law approved March 4th 1862, Comp. Laws, 680, ch. 137. Section 17 of this lien law says that the lien shall be a preferred claim on the building, and previous inoumbranoers and creditors must look to the land. Defendant in error never took any steps under the lien law; hence it is a previous incumbrancer or creditor.</p> <p>The general practice is, to give a liberal construction to the lien laws in favor of the mechanic or material-man. 10 Wend. 375; 2 Miss. 874; Houck on Liens, 85; 46 Mo. 595. The court below erred in applying the 14th section of the law to the case, and ignoring the 17th section. The case of Smith v. Moore, 26 111. 392, is precisely in point. And the building and lots should be divided, and sold only when it can be done without injury; otherwise the value of each should be found, and proceeds of the sale divided proportionably. Defendant Bickerdyke was the owner of the premises when the liens attached. 4 Scam. 531; 17 111. 301.</p> <p>Defendant in error, by accepting a mortgage from Mrs. Bickerdyke is estopped from denying her title as against her and the lien-men claiming through her; and is further estopped by permitting the erection of this building, having knowledge thereof. A mortgage or other incumbrance may give rise to an estoppel; 14 Cal. 612. Now, defendant in error by accepting and placing on record its mortgage from defendant Bickerdyke, acknowledged her title to all the world, and cannot now contest it. But the case is still stronger against the railway company, if it is the owner, and permitted work to go on from which it alone obtains the benefits, and afterward sets up its title to defeat the mechanics’ liens. The maxim, Qui tacet consentiré videtur, applies here. Passive knowledge is sufficient in such cases. 14 111. 269; 1 Johns. Ch. 344; 23 111. 88; 14 Wis. 281; 3 Ohio St. 344; 14 Cal. 247.</p> <p>If our rule of distribution be true, the claims admitted prior to the mortgage by the agreed statement, must be first satisfied: 2 Ohio St. 114. The other lien-men look to the building, and the mortgagee must look to the land for its claims. Yet no distinction between the lien-holders was made by the court below.</p> <p>1. The petition in error is brought by part only of the defendants below, and hence is defective. Bickerdyke, Rush, and others of the defendants, are not parties to the petition in error, either as plaintiff or defendant. It is well settled, that all parties interested in the judgment which it is sought to reverse, must be brought before the court, and if they are not, a motion to dismiss the petition will be sustained. Nash’s Practice, 4th ed., 1258; 13 Ohio St. 568; 14 Ohio St. 287; 22 Ohio St. 131; 10 Kas. 204, 394.</p> <p>2. It is evident that the plaintiffs in error can only sustain the substantial proposition of their case, which is thus stated in the fifth assignment in their petition, “That the court erred in its decision that the claims and interests of the defendants in error were prior and superior liens to the claims of the plaintiffs in error upon the buildings and additions upon said lands erected and constructed,” by demonstrating that their liens gave them a better title against defendant in error than Bickerdyke herself possessed.' Bickerdyke could only acquire title to the premises by performing her agreement or understanding with defendants, set forth in the findings of the court, to-wit, “On the understanding that on the erection of said building, and on payment of all her indebtedness to the plaintiff,” (now defendant in error,) “ said Mrs. M. A. Bickerdyke should have a title to said lots.”</p> <p>There is not in the case before us any question of priority between mortgagees and mechanie’s-lien holders. The 17th section of the law of 1862 has no bearing on the questions involved in it. The debt of Bickerdyke to defendants in error was the very root of her title, and it is absurd that any one should claim under her and yet attempt to repudiate that debt. The lienholders’ position, as against an owner having other than a fee-simple title, is definéd by §14 of that act; and all they can claim is, to have sold “whatever right or estate such owner had in the land at the time of making the contract,” and no more. The exact question we now discuss came before this court in Harsh v. Morgan, 1 Kas. 293, under the act of 1859, the 17th section of which is identical with § 14 of the act of 1862.</p>

The facts of this case aré sufficiently stated in the opinion, infra. The provisions of the city ordinance under which Seitz was convicted, are sufficiently stated in the appellant’s brief. Seitz was convicted at the June Term 1874, and he brings the case here on appeal. This prosecution was for an alleged violation of city ordinance No. 48, regulating the sale of intoxicating liquors, passed by the city counsel of the city of Salina, and approved July 21st 1871.

PJrror from Wyandotte District Qowrt. Action on promissory note, against two parties, as defendants. An order of attachment was obtained, and levied on property of defendants. The summons was returned “Not found,” as to both defendants. Defendant Bowen made no appearance. Defendant Payne appeared and moved to dissolve the attachment, and he also filed a separate answer to the petition. Other facts and proceedings are stated in the opinion.

Original Motion for a Mandamus. The Atchison & Nebrasha Bid. Co., as relator, applied to this court, by original motion and verified petition, for a writ of mandamus against Mon. P. L. Hubbard, Judge of the Second Judicial District, to compel said judge to sign a bill of exceptions in an action tried and determined in the district court of Atchison county at the November Term 1875, wherein Peter Wagner was plaintiff, and the “Atchison & Nebraska Rid. Co.” was defendant.

Error from, Republic District Court. The board of commissioners disallowed a claim presented by Kindt, the sheriff, and thereupon Kindt brought suit to recover the amount claimed. The nature of the plaintiff’s claim, and the facts in the case, are stated in the opinion. Trial at the April Term 1874, and judgment in favor of plaintiff for $57 and costs. The Board of County Commissioners appeal, and bring the case here on error.

Error from Leavenworth District Court. Action by Isabel W. Dundee on a policy of insurance issued by plaintiff in error on the life of her deceased husband. Defense, that the quarterly-premiums due in January and April 1872 were not paid when due, and never had been paid. The assured died in May 1872. Trial at the March Term 1874. A special verdict was returned, and is copied in full in the opinion, infra.

Error from, Eranlclin District Court. Ejectment, brought by Clarh, as plaintiff, against Benj. F. AJcers, Benj. Esterly, Jennie Nugent, and E. J. Nugent, to recover the possession of 120 acres of land. Trial, and judgment for defendants, at the March Term 1874. The facts and proceedings are fully stated in the opinion. The plaintiff brings the case here on error.

Error from Douglas District Court. In December 1873 Sibert brought his action against Wilder '& Palm, on a promissory note given by defendants to one W. H. R. Lykins, in August 1867. Defendants paid Lykins $250 on said note, and afterward and in October 1867, after said note was due and payable, Lykins assigned the note to Sibert.

Error from Osage Bistriot Court. Allen & Son, as plaintiffs, recovered judgment against Shepard & Playford, at the April Term 1874, for $952.25, and costs. The defendants bring the case here on error. The facts and proceedings are sufficiently stated in the opinion.

Error from Frcmldin District Court. Action by Anderson against Lord and another, to recover an alleged balance of $1,500. . Plaintiff brought his action, against two defendants, and prosecuted it to judgment against Lord alone. Trial at the September Term 1874. Findings and judgment in favor of Anderson for $826.50, and interest, and costs. Lord appeals, and brings the case here on error. The principal facts are stated in the opinion.

Error from Butler District Cowri. Action by Bent as plaintiff, against Philbrick and wife, to foreclose a mortgage. Trial at the August Term 1874. Verdict and judgment in favor of the plaintiff for $596. The amount claimed by plaintiff was $650, with interest, protest damages, and protest fees. And because the verdict and j udgment were too small, plaintiff brings the case here on error. The facts and proceedings are stated in the opinion.

<p> Error from Wyandotte District Court. </p> <p>Foreclosure of mortgage, brought by “John Sarahass, William Johnson, and George Peacock, Trustees of the Methodist Episcopal Church, Wyandotte and Quindaro Mission, Kansas Conference, plaintiffs,” against Lucy B. Armstrong, defendant. Defendant gave to John Sarahass, Jacob Whitecrow, William Johnson, and John Brown, as trustees, etc., her note for $1100 and interest, on which she had paid $62 as interest. The defense was, that “said plaintiffs are not the trustees of the M. E. Church, Wyandotte and Quindaro Mission, Kansas Conference, nor have they any power or authority to collect any money or transact any business for said church.” Trial at the March Term 1874. The court found, as a conclusion of fact, “ that the plaintiffs Sarahass, Johnson and Peacock are not the lawful trustees of the Methodist Episcopal church for the Wyandottes, to sue for and collect the note set out in their petition against defendant, for the reason that they had all emigrated beyond the bounds of the Kansas Conference, and away from the locality where they resided in Wyandotte county, Kansas, at the time said note and mortgage were executed by defendant” —and thereupon gave judgment in favor of the defendant for costs. The plaintiffs appeal, and bring the case here on • error.</p>

Error from Butler District Cowrt. Injunction, brought by the Railroad Company, to restrain the collection of a tax. The district court, at the August Term 1874, overruled a demurrer to the answer of the defendant, and gave judgment against the plaintiff for costs. The plaintiff brings the case here for review. The material facts are stated in the opinion.

Error from Lyon District Court. Campbell sued the Railroad Company, claiming in his petition that, on the 12th of October 1874, the defendant while running a train of cars through the county of Lyon on its line of railroad, propelled by a steam locomotive, by reason of the negligent and careless management of said locomotive, and by reason of said locomotive being out of repair, and in an unsafe condition, fire was set to the grass on plaintiff’s land in said county…

Error from Morris District Court. Trover, brought by C. H. Pratt and D. A. Painter, to recover for the taking and conversion of cattle. All'the necessary facts are stated in the opinion. The plaintiffs had judgment, at the October Term 1874, for $3,998.81, and costs, and Shepard brings the case here on error.

Error from, Davis District Court. Wingfield brought his suit against the Railway Company to recover the value of a lot of ties which he alleged he furnished at the request of said company. The amount claimed was $207.99. Answer, payment. . Trial at the March Term 1874. Verdict and judgment for plaintiff. The Railway Company undertook to obtain a “case made,” and afterward brought the case here by petition in error. The proceedings are fully stated in the opinion.

Error from Neosho District Court. Foreclosure of mortgage executed by one Fletcher and wife, to secure a note executed by Fletcher alone. The petition was filed in April 1873. E. J. Nooner was joined with the Fletchers as a defendant. The only allegation in the petition relating to Nooner is copied in full in the opinion, infra.

Error from Woodson District Court. Action by McConnell against Hamm, to recover $140 alleged to be in his hands as treasurer of the city of Neosho Falls, legally and properly payable to plaintiff as owner and holder of certain bonds and coupons. All the necessary facts appear in the opinion. The district court, at the June Term 1874, gave judgment in favor of defendant, and plaintiff brings the case here on error. The answer of Hamm presents no defense to the petition.

Error from Crawford District Court. Action by Crenshaw as plaintiff against Vanausdeln and A. Cambien to recover balance due on sale of reaper. The facts are fully stated in the opinion. The district court, at the September Term 1874j gave judgment for plaintiff, and defendants bring the case here on error.

The action of Norton .and others was for an injunction against the treasurer of Lyon county, the Oity of Emporia, and others, to restrain the collection of certain “ assessments ” levied by the city of Emporia in 1871 on the lots of the plaintiffs to pay contractors for macadamizing, curbing and guttering Commercial street in said city. The case was in this court first at the July Term 1872, and is reported in 10 Kas., 491, as Qilmore v. Norton.

Error from Miami District Court. Action by Anderson as plaintiff to recover a balance alleged to be due him from Polk and another on contract. His apcount as stated in the petition amounted to $2,605, and he admitted payments in the sum of $515; balance claimed, $2,090.' Answer, a general denial, and a counterclaim for damages. The material facts, are stated in the opinion. Trial at the June Term 1874 of the district court.

jError from Bourbon District Court. Ejectment, brought by Boring, to recover possession of eighty acres of laud. Plaintiff claimed to be the legal and equitable owner, and to be entitled to the immediate possession.

Error from Chase District Cowrt. Bales sued the Railroad Company for damages resulting from a fire alleged to have been negligently set out by the company.

<p>1. Amendments to Pleadings; Error to Refuse. Courts may sometimes commit substantial error by refusing to pérmit amendments to bp made to pleadings during the progress of the trial; and held, under the circumstances of this case, that the court below did commit substantial error, by refusing, during the trial, to _ permit the plaintiff below to so amend his reply as to put in issue the truth of certain portions of the defendant’s answer.</p> <p>2. Defenses — Inconsistent. Inconsistent pleas should not be encouraged.</p> <p>3. Cross-Petition — To be Full and Complete. Where defendant sets forth in his answer a cause af action of his own, by way of counterclaim, and asks affirmative relief thereon, he must set forth such cause of action with the same particularity, completeness and exactness that he would if he were the plaintiff, and were setting it forth in his petition. Hence, it is not sufficient for a defendant, when sued on a mortgage, to allege, for the purpose of obtaining affirmative relief thereon, that he never executed any mortgage, but if he did it was done under duress.</p>

Error from Shaumee District Court. Injunction, to restrain the collection of a judgment, brought by The King Wrought-Iron Bridge Manufactory & Iron Worhs of Topelca, against Chester Thomas, jr., as sheriff, and Wm. Chambers and four others as “Chambers Bros. & Co.” Trial at the June Term 1874. The district court found, as conclusion of law, that the judgment complained of was void, and made a decree perpetually enjoining its collection.

Error from Shawnee District Court. Action by Rahm as plaintiff on two promissory notes, one for $4,915.57, the other for $5,561.57. The notes were dated “Nov. 9th 1872,” payable at four and five months respectively. The petition alleged that they were indorsed to plaintiff before maturity.

Error from, Allen District Court. Action brought by Tye as plaintiff on the following promissory note:- $600.00. Iola, Kansas, Dec. 6th, 1870. On or before the 1st day of July 1871,1 promise to pay James Faulkner, or order, the sum of $600, for value received, bearing interest at the rate of ten per cent, per annum from date until paid. Charles E. Briggs.

Error from Osage District Court. Eeplevin for “one steer, two years old next spring,” brought by Mallory as plaintiff, before a justice of the peace. The justice gave judgment in favor of the defendant. Mallory took the case to the district court by appeal, and a trial was there had at the March Term 1872. The steer in controversy had been seized and taken by the sheriff at the suit of Berry against Mallory. Mallory claimed the steer as exempt.

Drror from Osage District Court. At an election held in Osage county May 25th 1875 for a relocation of the county-seat, three places were voted for, but no place received a majority. A second election was held on the 8 th of June, to decide between Lyndon and Osage City, they being the two highest at the first election. At this second election Lyndon received 1131 votes, Osage City 1049, and Shireton 298 — total, 2478.

Error from Anderson District Court. The Board of Cownty Commissioners of the county of Anderson brought its aotion to cancel a subscription of $160,000 purporting to have been made by said county to the stock of the Paola & Fall River Railway Company, and for the return and cancellation of $160,000 of county bonds issued and deposited with the state treasurer to pay such subscription.

Error from Linn District Court. Ejectment, brought by Allen as plaintiff, to recover possession of Lot 5 in Block 129, city of Pleasanton. Both parties claimed title in fee. The facts are fully set out in the opinion. The district court, at the May Term 1874, found in favor of Allen, and gave judgment in his favor, and Tucker, defendant, appeals, and brings the case here on error.

Error from Sedgwick District Court. Action by Walker to recover for moneys alleged to have been paid as usurious interest. The averments of the petition and answer are sufficiently stated in the opinion. The district court, at the May Term 1874, overruled a demurrer to the petition, and then, after answer filed, sustained a demurrer to the answer, and gave judgment in favor of Walker and against Day for $430.30, and costs. Day brings the case here on error.

Error from Montgomery District Court. The opinion contains a full statement of the facts and questions in this case. Maris, as plaintiff, recovered judgment at the April Term 1874 of the district court against the Railroad Company, for $208.25, and costs, and the Railroad Company brings the case here on error.

Error from Crawford District Court. Foreclosure of mortgage, brought by the Merchants National Banh of Fort Scott, as plaintiff, against Lends Ornn and his wife. The mortgage was executed,by said defendants to secure a note given by said Lewis Ornn alone. The note and mortgage were executed and dated July 19th 1873. The Mo. River, Fort Scott & Gulf Railroad Co. was joined as a codefendant, as having some interest in or claim to the mortgaged premises.

Error from Linn District Court. Action by Holden as plaintiff, to forclose a mortgage given by Clark and wife to Dean S. Kelley, to secure a note executed by Clark alone. The note was for $600, due in five years, with interest-notes payable every six months. The action was commenced February 14th 1874. The defense was, an alleged partial failure of consideration, and usury.

Error from Atchison District Court. Action by Jansen, to recover damages for personal injuries.

Error from Dioldnson District Court. In August 1860, W. J. Hobson gave to R. W. Ogden his due-bill for $559.12, with A. G. Hobson as surety. In 1867 Ogden recovered judgments against said Hobsons on said due-bill, and executions thereon were returned “no property found.” All the parties resided in Kentucky, and said judgments were recovered in the circuit court of Warren county in that state.

Error from Johnson District Court. Replevin, brought by Perry Phillips, for the undivided one-half interest in nine head of horses, one phaeton, two buggies, harnesses, etc. Phillips claimed to be the owner, and entitled to the possession of the property, and alleged that it had been wrongfully taken and was wrongfully detained by Vich Reitz.

Error from Atchison District Court. Action by Scoville, and two others, partners as Scoville & Smith, on a due-bill for $200 executed to them by Lane April 3d 1873, on which a payment of $100 was indorsed as having been made on the 16th of said April. Lane answered, and alleged that the due-bill was procured by fraud, and was without consideration. Trial at the November Term 1874, C.W.J., judge pro tern., presiding. Verdict in favor of defendant.

Error from Washington District Court. Action by Collins, as assignee of one C. W. Walker, to recover-the amount of a school-district order issued to the latter in payment of teacher’s wages by School District No. 10 of Washington County.

Error from Crawford District Court. Proceedings to discover taxable property which the owner refused to list. The record of such proceedings is as follows: County Clerk’s Oeeice, Girard, July 18th, 1874.

Error from Johnson District Court. Action brought by Moody to quiet his title to the W.-| of N.W.J of section 31, township 12, range 24 east, in Johnson county. He, claimed said land by virtue of a patent issued August 1st 1860, to one Daniel Wisely, and through mesne conveyances from the heirs of said Wisely and others to himself.

Error from Wilson District Court. This action was commenced in the district court January 2d 1875. Held: the votes canvassed, showing 108 votes “for the donation and bonds,” and “SO votes against the donation and bonds.” After which the .petition proceeds:] “Afterward, to-wit, on the 8th of April 1873, the trustee, clerk and treasurer of the said township of Center, on behalf of said township, in pursuance of the election aforesaid,…

Original Proceedings in Quo Warranto. Petition in the nature of quo warranto, filed in this court April 8th 1875, by the county-attorney of Crawford county, as relator, to oust Majors from the office of county treasurer of said county. The grounds upon which the removal was claimed are stated in the opinion.

Original Proceedings in Quo Warranto. Odell, as plaintiff, brought his action of quo warranto against Dodge, to determine his right to the office of justice of the peace of Great Bend township, Barton county. His petition was filed December 1st, 1875. All the necessary facts are stated in the opinion.

Error from Labette District Court. In February 1874 the county treasurer of Labette county issued to Franklin, as sheriff, a large number of tax warrants for the collection of personal-property taxes levied in and for the year 1873.

Appeal Jrom Cowley District Court. Indictment, charging that Horneman, at the county of Cowley, on the 13th of September 1875, with malice aforethought, unlawfully and feloniously assaulted one Enoch Willett, and with a certain loaded pistol or revolver shot him the said Willett with intent then and there him the said Willett to kill and murder. This indictment was found at the September Term 1875 of the district court.

Error from Neosho District Court. Action by Weaver, brought in October 1871, to recover damages sustained by reason of his being put off the cars of the Railway Company, near New Chicago, on the 15th of July 1871. The action was tried at the December Term 1873 of the district court. Verdict and judgment for plaintiff for $5,000, and costs — and the Railway Company brings the case here on error.

Error from, Linn District Court. Replevin, brought by Madden, against McGlothlin, to recover the possession of one horse and one colt which McGlothlin had seized and held upon an execution as constable. The material facts are stated in the opinion. The district' court, at the October Term 1874, gave judgment upon demurrer for the plaintiff, and McGlothlin brings the case here on error.

Error from Labette District Court. Action by Hudson to recover from the Railway Company damages for personal injuries inflicted by one Trotter who was at the time a servant in the employ of the defendant company. The facts as stated in the petition will be found in the opinion. The Railway Company demurred. The district court at the November Term 1874 sustained the demurrer, and gave judgment in favor of the defendant for costs.

Information for murder — the information charging that Bowen, “at the county of Wilson, on the 10th of October 1874, with a double-edged dagger or stiletto, purposely and maliciously did inflict two mortal wounds in and upon the side and abdomen of one John Hoppeler, then and there being, of which said two mortal wounds the said John Hoppeler afterward, and on the 13th of October 1874, died.” Plea, not guilty.

<p>Criminal Trial; Verdict, or Finding, of “Not Guilty,” Conclusive. In a criminal prosecution, where the defendant has pleaded not guilty to the charge, and where the case is submitted to the court without a jury for decision, either upon testimony or an agreed statement of facts, and the court finds the defendant not guilty, such finding is conclusive, and cannot be set aside and a new trial granted either upon appeal or by petition in error.</p>

Error from Labette District Court. The facts fully appear in the opinion. Trial at the May Term 1874. Findings and judgment in favor of Kelso for $614, and the Insurance Company brings the case here on error.

Error from Shawnee District Court. Action by Ehrgott & Krebs as plaintiffs against The King Wrought-Iron Bridge Manufactory and Iron Works of Topeka, as defendant, upon a promissory note in words as follows: “Topeka, Kas., January 13th, 1873. “Sixty days after date we, The King Wrought-Iron Bridge Manufactory and Iron Works of Topeka, Kansas, promise to pay to the order of Ehrgott & Krebs nine hundred and eighty 65-100 dollars, payable at the Kansas Valley National Bank of…

Error from Montgomery District Qowrt. One Seth B. Doane commenced an action in the district court of Montgomery county against one Richard Bird, and obtained therein an order of attachment, which Stone,, as sheriff, levied upon a stallion and a filly, as the property of said R. B., and took them into his possession.

<p>Cities; Reassessment oe Special Taxes; Power to Beassess, after Injunction Decreed; Legislative Authority. Where in consequence of the omission of some statutory prerequisite which the legislature might in the first instance have dispensed with, the assessment proceedings taken hy a city to collect from certain lots the cost of improvements on the street in front of said lots are defective, and the city is in consequence thereof enjoined from collecting the special taxes thereon, and where it appears, that the improvements were among the ordinary objects of municipal government, and it is not inequitable that the adjoining lots bear the burden thereof, that there was no fraud in the contracts for the work, no excessive expenditures, and no inequality or injustice in the apportionment, held, that the city might, notwithstanding said injunction, and after the passage of an act of the legislature curing such defects and granting new authority, proceed by a reassessment and relevy to collect from said lots the cost of said improvements.</p>

Original Proceedings in Mandamus. Petition for a mandamus filed in this court in December 1875 by the Board of County Comm’rs of Sedgwick Co., as plaintiff, to compel Bunker, as county clerk of Harvey county, to enter upon the tax-roll of his county, and against the taxable real estate therein which was detached from Sedgwick county and included within the new county of Harvey created by §5 of ch. 97, Laws of 1872, (p.184,) certain taxes certified to him.

The facts and proceedings in this case fully appear in the opinion. Trial at the November Term 1875. The State brings the case here on appeal.

Error from Neosho District Court. This action was .commenced in April 1872, in the district court of Neosho county, by the Leavenworth, Lawrence & Galveston Rid.

Error from, Jefferson District Court. Action by Nuzum against Douglass and two others, to quiet his title to the S.E.J of sec. 28, township 7, range 18, in Jefferson county. The answers of the defendants, and the proceedings in the district court, sufficiently appear in the opinion.

Error from Shawnee District Court. Cuendet brought suit against Lahmer on five promissory notes given by L. to plaintiff, on the 18th November 1873. Aggregate amount of notes, $749.

This case was decided at the January Term 1876 of this court, ante, p. 277, where a full statement of the facts will be found. A judgment of affirmance having been entered, Eahm, plaintiff below and plaintiff in error, filed a motion for a rehearing. Said motion was heard, and is now decided.

Error from Cowley District Court. Action by Jeffries to recover a balance of $59.37 and interest, alleged to be due for work and labor. On appeal to the district court the case was referred to T. H. S. for trial. The referee found the plaintiff’s claim was just, and that Read had a legal set-off amounting to $22.60.

Error from Lyon District Court. Some time prior to 1872, School District No. 57, of Lyon cov/nty, was duly organized, comprising 21 eighty-acre tracts of contiguous territory, adjoining the city of Emporia, on the east. In 1872 said district voted and issued bonds to the amount of $1,500, and erected a substantial school-house.

Error from Miami District Court. Action by the Board of Education of the City of Paola against Snyder as principal, and nine others as sureties, to recover moneys alleged to belong to said Board of Education, and which came to Snyder’s hands as treasurer of said board, and which he neglected and refused to pay over to his successor in office. The defense interposed, and the proceedings at the trial, are sufficiently stated in the opinion.

Error from, Miami District Court. . Action brought by George & Co. against Gregg, on a bank check which reads as follows: Paola, Kansas, Nov. 1st, 1869.

Error from Miami District Court. In July 1868, one Joel Abbott commenced an action against Horace B. Smith, to quiet his title to the S.E.J of section 9, township 17, range 24 east, 160 acres of land in Miami county. The action was brought under § 569 of the code of 1859, (same as § 594, code of 1868.) Smith resided in Indiana. An affidavit for publication was made by S. S. C., before the clerk of the district court.

<p>1. Findings — Limited to Issues. While when a case is tried by the court without a jury, and special findings are demanded, it is generally the duty of the court to find upon all the issuahle facts, yet this rule does not require it to make a finding, upon any matter, though alleged in the petition and denied in the answer, which is foreign to the controversy between the parties, anything which upon motion would have been stricken out as irrelevant and redundant.</p> <p>2. Error, Without Prejudice. An omission to find upon all the issuable facts, will not always be an error compelling a reversal. If the facts found, and by the evidence rightfully found, compel the judgment that is rendered, whatever may be the truth concerning the matters not passed upon by the court in its findings, and whichever way they might be found, then the omission, if error, is without prejudice.</p>

Error from Davis District Court. All the necessary facts in this case are stated in the opinion. Gillpatrick, plaintiff, had judgment at the May Term 1875, and Rizer brings the case here on error.

Error from Riley District Court. Action by Ml’S. Cutter as administratrix, to recover damages sustained by the next of kin of one Joseph Stewart, deceased. The petition alleged the death of said Stewart by the wrongful'pets, negligence and mismanagement of the Railway Company while he was a passenger in the cars of said company between Manhattan and Ogden, in Riley county, in this state, in August 1872.

Frror from Cherokee District Court. Action on a note given by Gill to Kaufman & Co.' Answer, “that said note was given for intoxicating liquors sold within the state of Kansas, in violation of the dramshop act, (ch. 35 of Gen. Stat. of 1868,) and hence said note is void.” Trial at the January Term 1875, and judgment in favor of plaintiffs for $133.50, and Gill brings the case here on error. contended that the contract of sale was a Kansas contract.

Error from Shawnee District Court. Action by Mower, to recover from the K. P. Railway Company the value of a steer and a heifer killed by defendant’s cars. The action was tried by the court, without a jury, at the December Term 1874.

Error from Pottawatomie District Court. The pleadings and proceedings in the court below are fully-stated in the opinion. Yanz recovered judgment, at the February Term 1875, for $30 for a cow killed by defendant’s cars, and $35 attorney-fees, and costs of suit; and the Railway Company brings the case here on error.

Error from Wyandotte District Court. Injunction, brought by the K. P. Railway Company, against the Board of County Commissioners, and E. W. 8. Drought as sheriff, of Wyandotte county, to restrain the collection of alleged illegal taxes.

Error from Coffey 'District Court. ■ At the general election held in Coffey county on the 3d of November 1874, Miss Mary P. Wright received the highest number of legal votes cast for any person for the office of county superintendent of public instruction, and Julius PC. Noell received the next highest number of legal votes cast for any person for the same office.

<p> Appeal from McPherson District Court. </p> <p>Information, charging Jones with “willfully, unlawfully, and feloniously” defiling a female under eighteen years of age, she “being then and there confided to the care and protection” of said Jones by her parents. A plea in- abatement was filed, in support of which defendant gave in evidence the record of an examination had and held on the 27th of January 1876, by and before J. "W. H. and W. L. E., two justices of the peace, on a complaint made by R. B. Holbrook charging Jones with said offense, on which examination said jústices found “that no offense was committed,” and Jones' was thereupon discharged by them. The record also shows that on the 29th of January said Holbrook made and filed a new complaint before G. M. S., another justice of the peace of said county, making the same charge against Jones, on which said justice held an examination, and for which offense he required Jones to enter into a recognizance to appear and answer before the district court. The information was filed April 27th 1876. The plea in abatement was overruled. Trial at the May Term 1876. Verdict, guilty — and Jones was sentenced to imprisonment in the county jail for the term of nine months, and to pay a fine of five hundred dollars, and cost of suit. From this judgment and sentence, Jones appeals.</p>