Volume 18 — Kansas Reports

Error from, Neosho District Court. Action to quiet title to certain lands, brought by Giltenan, the testator of Barnes, defendant in error. The case was here in July 1874; (13 Kas. 476.) On being remanded to the district court, it was again tried, at the December Term 1874, the trial resulting in a finding and judgment in favor of Lemert, defendant.

Mulkins was charged, by information, with having defiled one Helen Kinning, a female child under ten years of age, while having the care and protection of said Helen. Plea, not guilty. Trial.at the September Term 1876. Verdict, guilty, and judgment on the verdict. Mulkins appeals to this court. The alleged errors are stated in the opinion.

Error from Sedgwick District Court. Injunction, brought by the Railroad Company, to restrain certain alleged illegal taxes. The district judge granted a temporary injunction, 30th January 1875. Afterward, and after the passage and approval of ch. 8, laws of 1875, said temporary injunction was dissolved, on motion of Woodcock, county treasurer. Plaintiff appeals from the order dissolving the injunction, and brings the case here on error.

Error from, Morris District Court. A perpetual injunction was decreed in favor of the Peerless Mill Company, at the October Term 1875 of the district court. Shamleffer brings the case here on error. The opinion, contains a full statement of the facts and proceedings.

Error from Leavenworth District Court. Action by Fitzsimmons, by his father as his next friend, to recover damages for personal injuries sustained. The plaintiff had judgment- at the November Term 1874 of the district court for three thousand dollars. The Railway Company brings the ease here on error. The facts, and the instructions complained of, are set forth in the opinion.

Error from, Riley Eistrict Court. Judgment was rendered against Thompson, in favor of Higginbotham, in September 1874. An execution was issued in March 1875, and on the first of May thereafter lands of Thompson were sold under said execution, by the sheriff of Riley county. Counter motions were made, to confirm, and to set aside this sale. Such motions were heard at the June Terml875.

Error from Leavenworth,- District Court. Michael McCarthy, a resident of this state, was injured while repairing the track of defendant’s railroad in Platte county, Missouri, and died from the effects of such injury. His administrator brought suit against the Railroad Company, under §422 of the civil code, to recover damages, alleging that Michael’s death was caused by the wrongful acts of the defendant company.

Error from CheroJcee District Court. Action by Burgess to foreclose a mechanic’s lien on the road-bed of the Memphis, Carthage & Northwestern Railroad Company. The pleadings, and proceedings, are sufficiently stated in the opinion. A money-judgment was entered by consent; but the distriot court, at the October Term 1874, refused to decree a lien on the road-bed for the amount due, and Burgess brings the case here on error.

Drror from Leavenwo7%th District Court. Action by Doyle, who alleged that by reason of the negligence of the Railroad Company he was 'thrown from a hand-car “against and upon the ground, and was thereby greatly bruised, lacerated and wounded, and that by said fall his right leg was broken at the thigh, his right hip was dislocated, his right side paralyzed, his right shoulder-blade broken, and that he was by said fall injured internally, severely, and dangerously, and was…

M'ror from Cherolcee District Court. Injunction, brought by Moore, against Curtis, plaintiff in a former action, and Palmer, as sheriff, to restrain them from executing a certain decree made in favor of Curtis against Moore’s grantor. All the necessary facts appear in the opinion. The district court, at the April Term 1875, gave judgment in favor of Moore, and Curtis and Palmer bring the case here on error.

Error from Cowley District Court. All the facts in this case, and all the proceedings of the district court from whose order Pryor appeals, are sufficiently-stated in the opinion.

Rogers was charged by information with murder for killing one Leggett. He was tried at the September Term 1876> of the district court, and convicted, and seiitenced to imprisonment in the penitentiary for ten years. He now brings the case here by appeal, alleging error in refusing instructions asked by his counsel. The instructions refused, and the facts, are stated in the opinion.

Error from Atchison District Court. In April 1873 a petition was-filed by Alexander EE. Deed, Peter Muller, John Ketch, Charles Miller, William S. Knight and Wm. Betchel, as plaintiffs, against Wm.

Error from Labette District Court. Action by Sturges to recover $2,000, the amount of a policy of insurance issued by the Missouri Valley Life Ins. Go. to one Enoch Haynes, and on the life of Haynes. The material facts are stated in the opinion, infra. Trial at the June Term 1874 of the district court. Yerdict and judgment for plaintiff, and the Insurance Company bring the case here on error.

Error from, Osage District Court. Action by Williams against Drake and Ramskill, to recover a debt alleged to be due to plaintiff from a partnership consisting of plaintiff, defendants, and others, and which plaintiff claims was assumed by defendants. The pleadings, and the facts, fully appear in the opinion, infra. Williams had judgment for $133, at the January Term 1875 of the district court, and defendants bring the case here on error for review.

Error from Douglas District Court. Action by George W. Sibert, as assignee of Wm. H. R. Lykins, against Thomas Guest, J. G. Schmucker, J. N. McConnell, and F. W. McConnell, upon a note and mortgage given by said Thomas Guest, September 29th 1865, to R. A. and E. B. Hayes, which note and mortgage were assigned in October 1867 to said Lykins. The defendants Schmucker and McConnells, were joined as grantees of Guest.

Error from Leavenworth District Court. Action by McDonald, a sub-contractor, against Samuel McFarland, as contractor, and W. McN. Clough as owner, to recover the amount due him for work and labor on a house built for Clough by McFarland, and to enforce a mechanic’s lien for such amount. Mary, the wife of said Clough, was joined as a co-defendant. The facts, and proceedings, and alleged error, are sufficiently set forth in the opinion, infra.

Error from Iryon District Court. Baird brought suit against Truitt and wife, on a note for $500 given by Truitt alone, and a mortgage given by both defendants to secure the debt evidenced by the note. Truitt answered, admitting the making of the note and mortgage, but set up a counterclaim exceeding the amount of said note and interest, and claiming a balance as due him from Baird.

Error from Neosho District Court. Rosa was in the possession and occupancy of certain lands taken and appropriated through statutory condemnation proceedings by the Bailway Company, and he claimed damages for injuries alleged to be sustained to the lands so occupied. The Bailway Company demurred. All necessary facts appear in the opinion. The district court sustained the demurrer, at the December Term 1872, and Rosa brings the case here on error.

<p>1. Locating Highways; Proceedings Void, Unless Jurisdiction be First Obtained. Where a board of county commissioners attempts to locate and open a road, as a public highway, and appropriate private property therefor, without complying with the requisite conditions precedent giving jurisdiction, such proceedings are absolutely void; and on petition in error of a person whose land is thus attempted to be taken without his consent, the district court of the proper county can vacate and set aside such final orders of the board, without any exception being taken thereto by the party complaining, where no appearance was made by the party before the county board in any of the proceedings had therein.</p> <p>2.--Qualifications of Householders. Under section one of the act of 1874, page 164, relating to roads and highways, an application by petition to the board of county commissioners, signed by at least twelve householders, is a condition precedent to confer authority upon the board, under such law, to lay out, locate and open a Toad as a public highway; and while it is not absolutely necessary, in order to make the road valid^ that the petition itself should show upon its face that all or any of the signers are householders of the county where the road is to be located, yet the record of the proceedings should affirmatively show this fact when directly attacked. In such a case a board of county commissioners is acting in a special and limited capacity, and its jurisdiction should affirmatively appear upon the record.</p>

Error from Lyon District Court. Replevin, brought by Higbee, to recover possession of thirteen yearling mules, which he claimed to own,i and which he alleged were wrongfully detained by- McMillan. Plaintiff dismissed his action without prejudice to a future action, and judgment in favor of McMillan was thereupon rendered, at the September Term 1875. Higbee brings the. case here on error for review. The opinion contains a sufficient statement of the facts and proceedings.

Error from Montgomery District Court. Action by Stephenson, to recover for sundry claims of indebtedness amounting in the aggregate to $7,500: An order of attachment was obtained at the commencement of the action. Gapen moved to dissolve and discharge the attachment. The proceedings taken upon this motion, and the proceedings generally until final. judgment in favor of Stephenson, at the September Term 1874, are fully stated in the opinion.

Error from, Neosho District Court. John Shoenmaker, Trustee for the Society sustaining the Catholic Mission, as plaintiff, prosecuted to final judgment an action against Beach, as treasurer of Neosho county. The character of the judgment or decree entered in such action, and the subsequent proceedings regarding the same, will fully appear from the opinion, infra. The motion to vacate such decree was overruled at the April Term 1875 of the district court.

<p> Error from Franklin District Court. </p> <p>Dependants Elder and Walruff had judgment against Kronberg for costs, at the August Term 1874, and Kronberg brings the case here on error for review.</p>

Error from Osage District Court. At the November Term 1875 of the district court, Paries recovered judgment against Bell and another, on a promissory note dated 26th September, 1872. .Bell appeals, and brings the case here on error.

Error from Pottawatomie District Court. Moll recovered a judgment against Cockerell, at the August Term 1875, for five cents, and for costs amounting to $220. Cockerell, after verdict, and before judgment, moved that all of said costs except $20.75 be taxed against Moll, which motion was denied, and Cockerell now brings the record here, alleging error in the overruling of such motion.

Error from Brown District Court. Ejectment, brought by Johnson, to recover possession of a quarter-section of land in Brown county. Johnson claimed to be the owner of the legal and equitable estate. Clark admitted possession, and set up title, both legal and equitable, in himself. All necessary facts, respecting the respective claims and titles of the parties, are stated in the opinion, infra.

Error from Douglas District Court. Action by the Board of Commissioners of Douglas County, to recover from the Railroad Company, the par value of certain bonds issued by said county to said company in payment of subscription to the stock of the company, to recover back certain interest-money paid on said bonds, and to compel the surrender for cancellation of certain bonds not negotiated. Trial at the May Term 1875.

Error from Leavenworth District Court. Mitchell claimed two hundred and fifty dollars for five months’ services as guard at the county jail. The Board of County Commissioners disallowed his claim, and Mitchell appealed to the district court, where, at the September Term 1875, the action of the commissioners was sustained, and judgment rendered against Mitchell for costs. MitoheU now brings the case here on error.

Error from, Republic District Court. Injunction, brought by Tootle agáinst Savage, as county treasurer.

M'ror from Leavenworth District Court. Action by Hiatt and Maris, counting on a contract set out in full in the opinion, infra. The district court, at the January Term 1875, gave judgment in favor of plaintiffs for $584.55, and Usher, defendant, brings the case here for review.

Error from Leavenworth District Court. The only question here is one of practice. Porter and two others, as plaintiffs, commenced an action against Dough-, erty and another, as defendants. Their petition was filed 27th July 1875. The answer-day fixed in the summons, yras 26th August, and on that day the defendants filed their answer. The reply of plaintiffs was filed the next day, 27th August.

Error from, Mitchell District Court. Action in the name of The State, brought by the county-attorney on a forfeited recognizance, against Crissy, as principal, and another as surety. A demurrer by defendants was sustained at the August Term 1875, and The State now appeals, and brings the case here on error.

Error from, Johnson District Court. Miller had judgment at the November Term 1875, of the district court, and the Railroad Company brings the case here on error. All the facts appear in the opinion.

Error from Leavenworth District Court. Action by Kermeyer as plaintiff, against the Railway Company as defendant. The only question here is one of practice, and all the proceedings taken in the court below are stated in the opinion. The plaintiff brings the case here.

Error from Shawnee District Court. Action by Bradford as plaintiff, commenced originally against Nelson, Johnson, and Pauly, and charging all as makers of a promissory note. No service on Nelson, and the action was dismissed as to him. Trial at the August Term 1875 of the district court, and findings and judgment in favor of Pauly and Johnson.

Error from, Coffey District Court. Previous to April 1873, Allen Crocker was indebted to LaRue, and an action was pending in favor of LaRue upon bis claims, and judgment was given therein against Crocker, 17th May 1873, for $1,752.88. ' April 17th 1873, Crocker and wife executed their mortgage on 300 acres of land to and in favor of Henry Gay, to secure the sum of $2,500 then due and owing by Crocker to the firm of Gilbert & Gay.

Error from Marshall District Court. Ejectment, for the E. J of N.E.J, the N.W.J of N.E. J, and N.E. J of S.E. J of section 30, township 2, range 7 — 160 acres of land lying in Marshall county. Devoe, plaintiff claimed as patentee. Defendant Waterson claimed under a tax deed issued to him and duly recorded in 1865, for taxes assessed in 1862. Action commenced in the spring of 1874. Second trial at November Term 1874, and judgment in favor of plaintiff.

Error from Leavenworth District Court. Action brought by Endress on an undertaking given by Ent as principal, and Douglass as surety, in July 1875, to release certain property of Ent’s which had been seized and was held under an order of attachment. At the trial in the district court, at the December Term 1875, when Endress rested, the defendants demurred to the evidence. The court sustained the demurrer, and gave judgment in favor of defendants for costs.

Error from Morris District Court. Ti-ie board of county commissioners recovered a judgment against Munson and five others, at th’e November Term 1875, of the district court. The defendants bring the case here.

Error from Sedgwick District Court. Action by Harrington, on a promissory note, and judgment at the May Term 1874. The facts, and proceedings, are fully stated in the opinion. Abeel brings the case here.

Error from Lyon District Court. Retford sued the Railroad Company, and recovered judgment at the March Term 1875, of the district court. The Railroad Company brings the case here on error. The facts, and the proceedings in the court below, sufficiently appear in the subjoined opinion.

Error from Atchison District Court. Action by Hixon and two others as partners, against George and wife, to subject certain property claimed' by defendants as a homestead, to sale upon an execution. The opinion, infra, contains a full statement of the facts and proceedings. The district court, at the' June Term 1875, gave judgment in favor of the defendants, and the plaintiffs bring the case here on error.

Error from Allen District Cou/rt. Action by Cook, to recover damages alleged to have been caused by the carelessness and negligence of the Railroad Company. Judgment for plaintiff at the November Term 1874, and the Railroad Company brings the case here on error.

Error' from, Johnson District Court. Action by the Board of County Commissioners against Blake and others. The opinion, infra, states the facts and proceedings. Judgment for plaintiff at the August Term 1873, of the district court, and the defendants bring the case here for review.

Error from Doniphan District Court. Fretwell was an auctioneer, carrying on his avocation as such in the City of Troy, Doniphan county. He paid the regular license-tax, and procured an “auctioneer’s license,” • 21st January 1875, for one year from that date. On the 3d of February following, the city council duly passed an ordinance, which was duly published on the 5th, as follows: Ordinance No. 47 — In Sedation to Auctions, and Auctioneers.

Error from Morris District Court. Ejectment for the N.W.J of section 7, and the S. J of N.W.J of section 6, in township 20, of range 12, in Lyon county, brought by the widow and children of ¥m, Hall, deceased. The two tracts were conveyed to said ¥m. Hall, by separate patents, in 1860, Hall died intestate,.in January 1872, leaving a widow and six children, the plaintiffs in this action, and -they claimed the land in fee as the heirs of Hall. Action commenced in July 1872.

<p> Error from, Marshall District Court. </p> <p>Craft, as assignee of Cummings, brought suit to recover the amount due upon a policy of insurance issued by the Kansas Fire Insurance Co. to Cummings upon a certain hotel building situated in Blue Rapids. This action was commenced in February 1875. Another action was then pending in the same court, commenced in July 1874, wherein the Kansas Fire Insurance Co. was plaintiff, and said Cummings, Oraft, and others were defendants, wherein said Insurance Company sought to enforce and foreclose a certain mortgage given by one Hiscox to C. E. Olmstead, the payment of which had been assumed by Cummings before he assigned his insurance policy to Oraft. These two actions were afterward consolidated, and tried together as one action, at the August Term 1875. The material facts, and the questions involved, are sufficiently stated in the opinion, infra. The district court gave judgment in favor of Oraft for the full amount of the policy, and determined that the Insurance Company had no such interest in the mortgage as would enable it to set off the same against its indebtedness on its policy-contract. The Insurance Company brings the record here for review.</p>

Error from Labette District Court. Replevin, for a yoke of oxen, brought by Gross, as plaintiff, against Levi Greenfield and J. C. Bogard, as defendants. Gross claimed-the oxen as owner.

Error from Bourbon District Court. All the facts will appear in the opinion, infra. Judgment was given for Sivey, at the December Term 1875, and May-berry, defendant, brings the case here. that there was no want of care or diligence, cited Wharton on Neg., §82; and that witness Hayes was improperly permitted to testify, 1 Greenl. Ev. §329; 1 Phil.

Error from Brown District Court. Action by Elledge, who had judgment against Iles for $5,348.80, and costs, at the October Term 1875. Iles brings the case here.

Error from, Leavenworth District Court. Mrs. Margaret McGowan brought-suit against The N. Y. Life Insurance Company, and Reuben Partridge and George H. English, to recover an alleged balance due her on a policy issued by said insurance company on the life of her former husband. Partridge was the general agent for said insurance company, having his office in Leavenworth.

Error from Leavenworth District Court. An attachment against property was sued out by Green, and the district court, at the March Term 1876, on motion of Embry dissolved and set aside the attachment. Green brings the case here. that the testimony upon the whole case sustained the attachment, cited 2 U. S. Dig. p.225, §2476; 4 Abb. 349; 24 La. An. 128. contended that plaintiff’s own testimony disproved the allegation of fraud.

Error from Marion District Court. Action by Tennent, Walker & Co., against Battey, and one fueas and wife, to set aside an alleged fraudulent conveyance of property made by Lucas and wife to Battey. The material facts are stated in the opinion, infra. The district court, at the April Term 1875, held that this action could not be maintained, and gave judgment in favor of the defendants for costs. The plaintiffs bring the case here for review.

Error from Wyandotte District Court. Injunction, brought by the Railway Company, to restrain the City of Kansas (“which is in the state of Kansas,”) from taking and appropriating certain lands for a public street, pending an appeal taken from the proceedings on the part of the city to appropriate such lands.

Error from Washington District Court. The district court, at the December Term 1874, sustained a demurrer to the plaintiff’s petition, and gave judgment in favor of defendants Oswald and wife, for costs. The plaintiff, the Northern Kansas Land and Town Company, appeals, and brings the case here on error. submitted, that all contracts in writing, in this state, signed by the party, import a consideration.

Error from Harvey Eistrict Court. Rasure appeals from an order of the district judge, at chambers, made 29th July 1875, refusing to discharge certain personal property seized in attachment at the suit of Hart. The facts are fully stated in the opinion. claimed that the statute exempts $500 worth of “household furniture,” without regard to the kind, or the purpose for which it is used. Gen. Stat. 473, §3, subdiv. 4; 11 Allen, 582.

Error from, Shawnee District Court. Action by Shellabarger & Leidigh, to foreclose a mechanic’s lien claimed by them on lots 98 and 100, on Spruce street, in the town of Rossville, and the building thereon, for an alleged indebtedness for building materials furnished by them for use in the construction of said building. The indebtedness was not disputed, but the defendant denied that plaintiffs had a valid lien therefor on said lots or building.

Error from Nemaha District Court. The subjoined opinion of the court states all necessary facts, and proceedings.

Error from Coffey District Court. Action by School District No. 38, Coffey county, upon an official bond given by Walker, as treasurer. Service was made upon Jenks and Fleming, two of the defendants. Fleming made default, and judgment was taken against him for the full amount claimed. Jenks answered, and as to him,' trial was had, and judgment rendered for plaintiff. Jenks brings the ease here.

Error from Labette District Court. The subjoined opinion cpntains a sufficient statement of all necessary facts and proceedings. Reynolds and Reynolds, defendants, bring the case here on error.

Error from, Bourbon District Court. The only question in this case is, whether Fields, or Sherrill, holds the prior lien on certain real property. The district court, at the September Term 1875, found and determined this question in favor of Sherrill, and Fields brings the record here.

Error from Wyandotte District. Court. The Chouteau Insurance Company is a corporation organized under the laws of the state of Missouri, aud has .its principal office at the city of St. Louis, in said state.

Error from Neosho District Court. Action for divorce, commenced in October 1874. Defendant was then in the asylum for the insane. Service, copy of summons left with one T. F. T., guardian of defendant. Trial, as upon defendant’s default, at January Term 1875, T. ~W. C., judge pro tern., presiding, and decree of divorce entered. At the December Term 1875, the district court, P. B. presiding, the decree was vacated and set aside.

Error from Harvey District Court. Action by Patrióle. Trial, and judgment against Ort, at the April Term 1874, of the district court. Ort brings the case here.

<p> Error from Q'awford District Court. </p> <p>Harkreader had judgment at the April Term 1877, and Mohon brings the case here.</p>

Error from Atohison District Cóurt. Injunction, brought by Oliphant against the Board of County Commissioners of the county of Atchison, and John Moore, as trustee of Walnut township, Atchison county, and Henry Socks, as overseer of road district No. 2 in said Walnut township, to restrain and enjoin them from exercising any further jurisdiction or control over plaintiff’s land for the purpose of a public road, highway, or other public road use.

Error from Atchison District Court. Smith, defendant in error, filed his petition to effect a partition of certain real estate situated in the city of Atchison, alleging that the same was improved property, with storehouse thereon, and buildings of a permanent character.

Error from Lyon District Court. Action by Gillett. Trial, and judgment for costs in favor of the Board of County Commissioners, at September Term 1875 of the district court. Gillett brings the case here. The facts, pleadings and proceedings are fully stated in the opinion.

JEkror from Lyon District Court. Action by Plumb, against Bay, as sheriff, and Strong and Burt, to restrain a sale by the sheriff of certain real property. A temporary injunction was granted, and such order was afterward, on 30th December 1875, dissolved by the district judge. From the order dissolving the temporary injunction, plaintiff appeals.

Error from Wyandotte District Court. Action for divorce, brought by Annie L. Gibbs. Trial, and judgment, at September Term 1874 of the district court.

<p>1. Case-Made; Notice Required; Time for Settling; Duty of Judge. Where the court below, after a case is disposed of in that court, gives three days to make a case for the supreme court, and the case is served on the opposite party on the day such order is allowed, and on the same day the case is presented to the judge for settlement, and is on that day (and on the very day on which it is served,) settled, certified, signed, attested, sealed, and -filed with the papers in the case, without notice to or suggestion of amendments, or appearance by the opposite party, the pretended case-made is erroneously settled and signed, and the petition in error founded thereon presents no case for any review of the proceedings of the court below by the supreme court.</p> <p>2.--The making and serving of a case, are the acts of the plaintiff in error; the suggestion of amendments, the act of the defendant in error; and the settling and signing of the case, the duty of the judge.</p> <p>3.--The jurisdiction of the judge to settle the case, is a special and limited jurisdiction, which only arises at the times, and under the circumstances, specified by law; and in the absence of any appearance of the opposite party, or a waiver of amendments, it should appear upon the face of the record, first, that the case had been duly served, and second, that amendments had been suggested, or waived, or, that the opposing party had notice of the time and place of the settling of the case.</p>

Error from Ellsworth District Court. Action by John J. Myers, and Wm. Green, as partners, against George & Bros. Trial at the May Term 1874. Verdict for plaintiffs, and judgment on the verdict for $9,758, and costs. The defendants bring the case here on error.

Error from Atchison District Court. Action by G. A. Scovill and T. H. Annáble as assignees of the Fort Scott Coal and Mining Company, against the Topeka Boiling-Mill Company and John Seaton. The action was upon a promissory note, a copy of which is given in the opinion, infra. The Boiling-Mill Company was sued as maker, and Seaton as indorser.4 Trial at the December Term 1874 of the district court.

Error from Saline District Court. Action by Young to recover from tbe county the amount paid by him for certain illegal tax certificates, and subsequent taxes on the lands illegally assessed and sold. The facts fully appear in the opinion, infra. The district court, at the November Term 1875, gave judgment in favor of Young, and-the Board of County Commissioners brings the case here.

Error from Doniphan District Court. Replevin for 428 railroad ties, brought by H. D. Hastings and Alba M. Saxton, as partners, against Isaac Owens. Trial at September Term 1875 of the district court, and judgment in favor of plaintiffs. Owens brings the case here.

Error from Marshall District Court. Action by Lees, as plaintiff, against M. B. Haas and H. B. Haas, partners as “Haas & Co.” There is nothing in the record which shows the nature of the action, nor the amount of the judgment. The proceedings in the justices court, and in the district court, upon which the questions-here are raised, are stated in the opinion, infra.

Error from Franklin District Cowrt. Mary E. Horn, by her next friend, brought replevin against Whitford, and had judgment, at the March Term 1876 of the district court, for a return of the property replevied, and for costs. Whitford brings the case here. The opinion contains a statement of the facts.

Error from Atohison District Court. Reisner had judgment against the Railroad. Company, and one Hyde, at the November Term 1875, and the Railroad Company brings the case here on error.

Error from Leavenworth District Court. Action by Henry Hopkins as warden of tbe Kansas State Penitentiary, to recover from the Railway Company the value of two mules. The facts are stated in the opinion, infra. The district court, at December Term 1875, gave judgment for defendant. New trial refused, and plaintiff brings the case here.

Error from Riley District Court. The only question decided in this court is one of practice, as to which all material facts are stated in the opinion. The district court decided that the property in question was not exempt, and Patee appeals, and brings the case here on error.

Error from Crawford District Court. Injunction, brought by Louie J. Voss, James A. Hales, C. W. Whitson, W. H. McGuire, J. W. Woodcock,… Held: and officers for such school-district elected and qualified, and the machinery of the district put into operation; that from such time to the present, such district No. 11 has done that which it was competent for school districts to do,'voting bonds, and building a valuable school building, employing teachers, maintaining school,…

<p> Error from Marshall District Court. </p> <p>Action by Alex. ELughan and John McDowall, as partners, who had judgment at the August Term 1875. The City of Waterville, ~ defendant, brings the case here. All the facts and proceedings are stated in the opinion.</p>

Error from Franklin District Court. Aw action was brought by Wm. Williams against B. C. MoQuesten, to. recover $506, alleged to belong to Williams. Center and two others were afterward joined as co-defendants. The district court, at the March Term 1874, gave judgment in favor of Williams and against MoQuesten for the amount claimed, and adjudged that Center and the other defendants had no interest in said moneys.

Error from Cherokee District Court. Action by J. R. Wickersham and R. H. Keith, against the Chicago Zinc & Mining Company, J. A. C. Thompson, and W. A. Wilkinson. Trial at the October Term 1875 of the district court, and judgment against plaintiffs and in .favor of defendants for costs. Plaintiffs bring the case here for review.

Error from Cherokee District Court. Foreclosure, commenced by Morning against Charles Harmon, Almira Harmon and T. M. Harmon, as makers of a promissory note, and said T. M. H. and Margaret his wife as mortgagors, and against Soott as' a subsequent incumbrancer.

Error from Davis District Court. Action brought by Hopkins. Trial at the November Term 1875 of the district court. A demurrer to the evidence was sustained as to the Junction City & Fort Kearney Railway Co., one of the defendants, and overruled as to the Kansas Pacific Railway Co., the other defendant. Judgment against the latter company for $100, and costs, and said K. P. Railway Co. brings the case here.

Error from Mitchell District Court. Action by C. W. Gauss & 8ons, merchants, of St. Louis, Mo., against James A. Pope and Bainbridge F. Hobbs. Trial at December Term 1875 of the district court, and judgment in favor of plaintiffs and against defendant Pope for $387.02, and costs, as upon default; and judgment in favor of defendant Hobbs, and against the plaintiffs, for costs. Gauss & Sons appeal from this last judgment, and bring the case here on error.

Error from, Bourbon District Court. Trespass, brought by Eastes, against Avery, a constable, and Gottlieb, an execution-creditor of one Harris. Trial at the September Term 1875 of the district court. Judgment in favor of Eastes for $259.75, and costs. Avery and Gottlieb bring the case here. The facts are stated in the opinion. contended, that the verdict is not sustained by sufficient evidence.

Error from Woodson District Court. . Ejectment, for the N.E.J of the S.E. J of section 18, and a fifteen-acre tract of timber land lying in section 8, in township 19, range 12, in Lyon county, brought by Solomon Smith and Julia Smith as plaintiffs, against W. M. Wicks and Harrison Mays. The action was commenced in Lyon district court, and afterward the place of trial was duly changed to Woodson county, where the case was tried at the June Term 1875.

<p>1. Judgment on Promissory Note, for Purchase-Money, Not Lien on Land. A judgment on an ordinary promissory note given for the purchase-money of real estate, declaring that the debt is a lien on such real estate, and ordering that the same he sold to satisfy such debt, is erroneous; and it makes no difference whether such real estate is occupied as a homestead, or not.</p> <p>2.--The judgment in such a case should be an ordinary personal judgment against the defendant for the amount of the note, and costs, authorizing an ordinary execution to be issued against the property in general of the judgment-debtor subject to execution; and on such an execution the officer, after exhausting the personal property of the judgment-debtor subject to execution, might levy on such real estate (or on any other real estate of the judgment-debtor subject to execution) whether the real estate first mentioned were occupied as a homestead or not.</p> <p>3. Vendor’s Liens, Liscussed — -cases cited, and case of Pratt v. Topeka, 12 Has. 570, explained, and distinguished.</p>

<p> Error from Saline District Court. </p> <p>Kessler had judgment at November Term 1875, and the Railway Company brings the case here. No briefs on file.</p>

Error from Neosho District Court. Foreclosure of mortgage, brought by Karr against Boaeh and wife. Trial, and judgment in favor of Karr, at December Term 1875, and the defendants bring the case here. The subjoined opinion contains a sufficient statement of the facts, pleadings and proceedings.

Error from Montgomery District Court. The district court, at'the December Term 1875, on the motion of Andrews set aside a sheriff’s sale of real estate. Harrison & Willis, the plaintiffs in the execution, and the purchasers at such sale, appeal, and bring the case here on error.

<p> Error from Atehison District Court. </p> <p>Todd sued Allen, to recover certain moneys alleged to have been collected and received by Allen for the use of Todd. The district court gave judgment in favor of Allen, at the November Term 1875, and Todd brings the case here.</p>

Error from Sedgwick District Court. Maddox sued the Railway Company, and recovered judgment at the September Term 1875, of the district court. The Railway Company brings the case here. All necessary facts are stated in the opinion.

Error from Doniphan District Court. Action by Perry, as plaintiff. Trial, and judgment in favor of Jones, at September Term 1875 of the district court. The plaintiff brings the case here. The opinion will show all necessary facts.

Error from, Bourbon District Court. Action brought by the Grover & Baker Sewing Machine Co. against Redfield, on a bond given by one O’Conner as principal, and Redfield as surety, for the faithful performance by O’Conner of his duties and obligations as agent of said Sewing Machine Co. The proceedings in- the court below, and the error complained of, fully appear in the opinion.

Error from Atchison District Court. The only question here, is whether an appeal will lie from an order by a justice of the peace dissolving an attachment. Such appeal was dismissed by the district court, at the November Term 1875. Butcher, plaintiff, and appellant, brings the case here on error.

Error from, Leavenworth District Court. Action by Henry H. Houston, against John Hannon, and the Board of County Commissioners of Leavenworth county, to recover the moneys due on four certain bonds issued by said county of Leavenworth on the 1st of August 1865. Plaintiff alleged that the bonds belonged to him, and that they had been unlawfully converted by the defendants. The facts are fully stated in the opinion, infra.

Error from Cowley Eistriot Court. The Board of County Commissioners of Cowley county, on the 4th day of October 1875, confirmed the report of road-viewers declaring a road through Wilson’s land a public highway, and awarding Wilson $20 for his damages by reason thereof. Wilson duly appealed from such decision to the district court on the 26 th of said October, under and in accordance with § 30 of chapter 25, Gen. Stat., relating to counties and county officers.

Error from Franklin District Court. Injunction, brought by Mrs. Pennock, against the Board of County Commissioners, and the county clerk of Franklin county, and the holders of certain tax-certificates, to restrain the issuing of tax-deeds for certain lands assessed and sold for taxes, and to have said assessment and sales declared illegal and void.

Error from Neosho District Court. Trespass, brought by Roach and wife, to recover damages from the Railway Company. The defendant company constructed its railroad through the lands of Roach, and it was claimed that defendant unlawfully entered upon plaintiffs’ premises,, threw down the fences, cut down trees, dug and plowed up the soil, etc., whereby plaintiffs’ crops and lands were injured. Trial at the December Term 1874.

Error from Lyon District Court. Foreclosure of mortgage, brought by Shedd against McConnell and wife. An order of attachment sued out by the plaintiff against the property of both defendants, was afterward, and on the 21st of December 1875, on defendants’ motion, dissolved by the district judge, at chambers. From this order dissolving the attachment, the plaintiff appeals, and brings the case here on error.

Error from Chautauqua District Court. A single question of practice is decided in this case, respecting which the opinion states all necessary facts. The district court, at the November Term 1875, found and adjudged that Moore was indebted to Cutler in the sum of $175.50, and decreed the sale of certain attached property. Moore brings the case here.