Volume 19 — Kansas Reports

Error from, Wilson District Court. Action of trespass, brought by Baker against Francis Hefley and Thomas Cain. Trial at the May Term 1875, of the district court. Verdict and judgment in favor of Baker, and defendants bring the case here on error. The opinion contains a sufficient statement of the facts.

<p>1. Weight of Evidence; Province of Jury, to Determine. A reviewing court will rarely if ever weigh the testimony upon a question of fact properly submitted to a jury, and which it was the province of the jury to determine, and disturb a judgment and verdict because not sustained by sufficient evidence, even when the preponderance would seem to be against the finding of the jury.</p> <p>2. Burden of Proof; Conflicting Testimony; Verdiet, Where the issue is one of fact, and each party introduces evidence competent to be considered by a jury, and the court submits it for their decision, and the jury find against the party on whom is the burden of proof, and the trial court approves the verdict by refusing to grant a new trial, this court cannot reverse the judgment upon the ground merely that the verdict of the jury is against the evidence.</p>

Error from, Douglas District Court. At the October Term 1875, upon a verdict in favor of Bransfield, plaintiff, the district court gave judgment, and defendant Abeles appeals, and brings the case here on. error.

Error from Douglas District Court. Injunction, brought by Griffith, against Watson as county treasurer, and several others, to restrain the collection of alleged illegal taxes. The district court, at the October Term 1875, gave judgment for costs in favor of the defendants, and Griffith appeals.

Information for murder, charging Bohan with the felonious killing of Thomas Anderson, at the county of Saline, in November 1874. Bohan was tried at the March Term 1875 of the district court, found guilty of murder in the second degree, and sentenced to confinement in the penitentiary for twenty years. On his appeal to this court, such sentence was set aside, and a new trial granted. (15 Kas. 407 to 419.) A second trial was had at the February Term 1876 of the district court.

<p>1. Notes and Mortgage; Stipulation as to Payment; Effect of Default. D. and wife executed three notes, and a mortgage to secure their payment. The notes upon their face were due in one, two and three years respectively, but the mortgage contained a stipulation, that on default in payment of either, all should immediately become due and payable. On default in the payment of the first note, suit was brought upon all three) and to foreclose the mortgage. A decree was entered, which, after finding that the mortgage was given to secure the three notes, but that only the first was due, rendered a personal judgment for the amount of that note, directed a sale of the mortgaged premises and the application of the proceeds to the payment of the judgment and then to the satisfaction of the two remaining notes in the order of their maturity, and awarded execution for any deficiency. Held, That personal judgment should have been entered for the amount of all the notes, but that this was not an error of which the mortgagors could complain.</p> <p>2. Execution, 'Issues only upon Judgment. In a case like the above, it is error to award execution for any deficiency in the amount of the last two notes, as no judgment has been entered therefor, and execution issues only upon a judgment!</p>

Error from Leavenworth District Court. Action by the German Savings Panic, as plaintiff. Trial, and judgment in favor of defendant Wulfelcuhler, at the November Term 1874. The plaintiff brings the case here. The facts ai’e stated in the subjoined opinion.

Error from Douglas District Court. Action commenced by original petition filed in the district court by John H. Collamore as plaintiff, against John II. Wilder, as administrator of the estate of George W. Collamore, deceased, and the widow and children of said decedent, as defendants, to establish a demand against said estate, and subject certain lands in the hands of said widow and children to the payment of such demand.

Mror from Riley District Court. Action by Lydia II. Held: that an administrator appointed in another state or territory could maintain an action in this state under said § 422.] A trial upon the merits was had in the district court, at the March Term thereof 1876.

<p>1. Bailment; Loeatio Operis Faciendi ; Right of Property in the Thing Bailed. A railway company, having a quantity of old and worn-out railroad iron, which it wished to utilize, entered into contract with a rolling-mill company, by which the latter company was to re-roll into new bars or rails the old iron when delivered to it, and the rolling-mill company was to add to the old iron a certain amount of new iron to form the head or top of the new rails; and thereafter, under said agreement, old iron was delivered to the rolling-mill company by the railway company, and new rails were manufactured therefrom, with occasional additions furnished by the rolling-mill company, the railway company supplying the chief or principal part of the materials for the new rails: held, that the right ' of property to the iron, while the work was going on and to the rails, when completed, remains in the railway company; and held also, that the transaction between the two companies is of the nature of the bailment denominated by law-writers of the class loeatio operis faciendi.</p> <p>2. Accession ; The Party Furnishing the Principal Part of the Material, Mas the Title. In such a transaction, as above stated, the material inquiry is, which company furnishes the chief or principal portion of the material for the manufacture of the new rails; and where the old and new rails are levied upon in the possession of the rolling-mill company, as the property of the latter company, and are afterward replevied by the railway company as its property from the officers making such levy, and on the trial of said replevin action the president of the rolling-mill company, introduced by the plaintiff to prove the process of the manufacture of the new rails, testifies in full as to such process, and states he is familiar with the details of the manufacture of the rails, it is material error for the district court to refuse to defendants the right to show by' such witness the amount of new iron intermingled with the old iron in the process of manufacturing the old rails of the railway company into * new ones.</p>

Error from Jackson District Court. Action on an official bond, brought by Keller, as assignee of James Goodwin, to recover $117.16 and interest, alleged to have been received by Neal as justice of the peace of Netawaka township. The action was against Neal, principal, and J. F. Wyatt and Charles Sprague, sureties on the official bond. Trial dt the October Term 1875 of the district court, C. B., judge pro tern., presiding.

Error from Harvey District Court. At the March Term 1876 of the district court, Finan had judgment, and Shuster brings the case here. All necessary facts are stated in the opinion.

Error from Woodson District Court. At the October Term 1875 of the district court, Miller, on appeal-from a justice’s judgment against him, recovered judgment against Bogart. Afterward, and in vacation, Bogart filed a motion to set aside the last-mentioned judgment. At the March Term 1876 the district court sustained this motion, and dismissed Miller’s appeal. Miller now brings the case here. The facts are stated in the opinion.

<p> Error from Howard District Court. </p> <p>The only question here is as to the right of a mortgagee to recover an attorney-fee. The facts are in the opinion. The district court, at the October Term 1873, refused to allow the claim made by Jennings, and he brings the case here— (his petition in error being filed 11th October 1876—only three days less than three years from the date of the order appealed from.)</p>

Error from Johnson District Court. In June 1875, one Alfred Rebersman recovered a judgment in the district court for $712.80, and costs, against Harry McBride, and Mary his wife. The whole consideration for the claim upon which said judgment was based was the wages of said Rebersman as a laborer for said McBride and wife.

An information was filed against Saunders, charging among other things, that, on the 8th of November 1876, Saunders was the agent at Columbus, in Cherokee county, of the Adams Express Company, a common carrier, and as such agent was then and there acting for said company, and then and there as such agent “knowingly and unlawfully did receive and ship prairie chickens which had been recently killed as game,” to be transported by said express company from said Columbus,…

Error from Cloud District Court. A mechanic’s lien was filed by B. W. Porter and Holden Beard, and an action commenced thereon by them. They had entered into a contract with Netcott to construct for him a house and cistern. On this contract, and for extra work on the house and cistern, plaintiffs claimed $1,155, less payments made by defendant amounting to about $500.

Error from Chautauqua District Court. Trespass, brought by Carter, to recover damages for injuries to his hay, growing crops and hedges, committed by Berry’s cattle.

Error from Pottawatomie District Court. Morrall recovered a judgment against the Board of County Commissioners, at the February Term 1876 of the district court for one hundred dollars, and costs of suit, and the county board brings the case here on error.

Ei'ror from Atchison District Court. The district- court, at the March Term 1876, ou petition in error wherein Rice was plaintiff in error, and Harvey was defendant in error, affirmed the judgment of a justice of the peace. Rice now brings the record to this court for review. All necessary facts are stated in the opinion.

Error from Cloud IMtrict Court. Action by Mrs. Young, as plaintiff, commenced originally against D. J. Fowler, as administrator, etc., and Anna E. Sage, as defendants.

Error from, Linn District Court. At the May Term 1875 of the district court, a decree was entered in favor of J. W. B., the husband, and against N. B., the wife, and awarding to the wife certain alimony, etc. The terms of the decree are stated in the opinion, infra.

Error from Cloud District Court. Burgett, as plaintiff, sued Burns and one Richard Coughlin. At the April Term 1875, he recovered judgment against Burns alone. Burns brings the case here, joining Burgett and Coughlin as co-defendants in this court.

Error from Douglas District Court. Action to foreclose mortgage. At the April Term 1876, the district court sustained a demurrer to plaintiff’s petition. Meyer, plaintiff below, brings the case here. All necessary facts are stated in the opinion.

Error from Saline District Court. Boyle filed in the district court his petition against John Doyle and L. J. Grant, which, after the proper caption and title, is as follows: “ The plaintiff shows to the court, and alleges, that on the 2d day of June 1874, he obtained a judgment by the consideration of the district court of Saline county, duly rendered against one James Quinn, in the sum of $770, and the further sum of $56.60 costs of said suit, and interest on said judgment…

<p>Residence; Domicile; Intention to Change. In order to effect a change of residence, there must exist both the intention to change, and the fact of removal. Neither is sufficient alone.</p>

Original Proceedings in Quo Warranto. Action in the nature of quo warranto, brought originally in this court by Hudson, as plaintiff, to try the title to the office of city attorney of the city of… Held: used and exercised the said office, and the franchises and privileges thereto belonging. Plaintiff demanded that judgment of ouster from said office be pronounced against the defendant, and that plaintiff be adjudged to be entitled thereto, and put into possession thereof.

Error from Chautauqua District Court. All the facts of this case are stated in the subjoined opinion. Section 453 of the civil code, Gen. Stat. 716, provides for the appraisement of lands and tenements taken in execution ; and § 455 provides that no such property shall be sold for less than two-thirds of the appraised value. But these provisions are now subject to the provisions of ch. 66, laws of 1872, page 105.

Information filed in the district court in April 1877, charging Grewell with cutting timber on school lands in violation of sec. 26 of art. 14, ch. 122, Laws of 1876, (p. 287.) Trial at April Term 1877. The jury found the defendant guilty of cutting and taking away one load of wood.

Error from Barton District Court. Ejectment, brought by Everett. The facts sufficiently appear in the opinion. Second trial at September Term 1876. Judgment in favor of defendant Lush, and plaintiff brings the case here.

Error from Cloud District Court. Action by Lawson, to recover damages for an alleged breach of contract. Hanson, defendant, removed the case from a justice’s court to the district court, where, at the October Term 1876, the justice’s judgment was affirmed. Hanson now brings the case here.

Error from Crawford District Court. Action by the School District as plaintiff, against Wands- and his sureties, to recover money alleged to have been received by Wands as treasurer of said school district, and unlawfully retained by him. All the facts, and the character of the pleadings, are set forth in the opinion. The district court, at September Term 1876, gave judgment in favor of the School District, and defendants bring the case here on error.

Error from Wyandotte District Court. In January 1874, Wolcott commenced an action in the district court against two parties, each named Hans Hanson.

<p>Practice, Supreme Court ; To Review Alleged Errors, Record Must be Full and Complete. H. was declared elected to the office of county commissioner for one of the districts of Cherokee county. C. contested his election before a court of contest of that county, and on the trial thereof, the court of contest decided in favor of C. the contestant, and against H. the contestee. Afterward H. attempted to have the proceedings of the court reviewed by proceedings in error in the district court of said county. The district court affirmed the judgment of the court of contest. H. brings the case to the supreme court on error, to reverse the action of the district court, but fails to show by the record that any petition in error was filed in the district court, and there is nothing in the record to inform this court upon what assignments of error, if any, the district court acted. Held, that the supreme court cannot adjudge that the district court committed error in the case.</p>

Error from Nemaha District Court. TVo actions of replevin were brought against Dickson, a ’ constable—one by Anna Randal, and the other by M. B. Casey. Both cases were tried together, at the May Term 1876 of the district court. Verdicts and judgments for plaintiffs, and Dickson brings the'cases here. The facts and proceedings are stated in the opinion.

Error from Osborne District Court. Haas & Co. sued Fessler, and obtained an order of attachment which was levied on certain property. Fessler moved to dissolve the attachment. The district court, at April Term 1876, overruled said motion, and Fessler brings the case here on error. The facts and proceedings are stated in the opinion.

Error from, Cowley Eistrict Court. ■ The only question here is as to the construction of section 115 of the justices act. The facts are fully stated in the opinion. Stewart brings the case here on error.

Error from Cloud District Court. Foreclosure of mortgage,- brought by Hunter against F. W. Neitzel and Maria his wife, as mortgagors, and Orans and Dinwoodie as incumbrancers. Judgment in favor of plaintiff, and against all the defendants, at April Term 1875, and defendants bring the case here on error. The proceedings, and errors complained of, are fully stated in the opinion.

Error from Marshall District Court. Action by the county treasurer, against the Railroad Company, and William Bond as receiver of said company, to recover certain unpaid taxes levied on certain real property belonging to said Railroad Company in Marshall county.

Error from Ottawa District Court. Injunction, brought by Nelson and fourteen others, “citizens and taxpayers in and of Bennington township, in Ottawa county,” plaintiffs, against the. Board of County Commissioners, T. E.-Bcott as county treasurer, and the Township of Concord, as defendants.

Error from Pottawatomie Distriot Court. Injunction brought by Reynolds against Chandler as county treasurer. All the facts appear - in the opinion. A perpetual injunction was decreed by the district court, and the county treasurer brings the case here on error.

Error from Doniphan District Cowrt. A-eull statement of th'e proceedings in this case will be found in the subjoined opinion. The district court, at September Term 1876, gave judgment against Manville, and he brings the case here for review.

Error from Leavenworth District Court. Action by Thomas and another, to recover for certain professional services as physicians and surgeons. All necessary facts are set forth in the subjoined opinion. Trial at May Term 1873 of the district court. Verdict and judgment in favor of plaintiffs for $235, and the Railroad Company brings the case here.

Information against Lewis, charging that said Lewis, on the 23d of February 1877, while imprisoned in the common jail of Atchison county, in the custody of the sheriff of said county, duly charged with having committed the crime of burglary, before conviction upon such charge, and awaiting his trial therefor, unlawfully and feloniously broke such jail and escaped therefrom and from the custody of said sheriff, etc. Trial at the March Term 1877.

Error from Wyandotte District Court. All necessary facts are stated in the subjoined opinion. At the April Term 1876 of the district court, Little recovered judgment for $1,050, and costs of suit, and the Railway Company brings the case here.

Error from Franldin District Court. Action by Hanson, against Towle as administrator, upon two promissory notes, commenced originally… Held: in Brown v. Evans, 15 Kas. 88, that an “estate may be held liable for promises made by the administrator where in law he has a right to make such promises, or where in law it is his duty without a promise to do just what he has promised to do.” But our statute confers no power on an administrator to take a claim out of the statute of…

Error from Cloud District Court. Action by Mrs. Nutt to recover damages for an assault and battery alleged to have been committed on her by Townsdin. Trial at April Term 1876 of the district court. Verdict and judgment in favor of plaintiff for $500, and defendant Townsdin brings the case here.

Error from Montgomery District Court. Foreclosure of mortgage, brought by Taylor against S. F. Griswold and School District No. 88. In April 1873, Griswold executed his note, and a mortgage to secure the same, to and in favor of one Lewis Taylor, for $335.50, payable one year after the date thereof. The mortgage covered a full quarter-section of land. In May next following the plaintiff, Charles Taylor, became the owner and holder of said note and mortgage.

Original Proceedings in Mandamus. A petition was filed in this court on 30th June 1877, by Wm. Baughn and three others, partners under the name and style of “Oxford Ferry Company,” as plaintiffs, against the Board of County Commissioners of Sumner Co., as defendant, praying for a peremptory mandamus, etc. An alternative writ was issued, to which defendant made due return, showing cause.

Error from Osborne District Court. Injunction brought by Blake, against JR. JR. JHJays as county treasurer, L. D. JHonn as sheriff, the Board of County Commissioners of Osborne County, and James A. Wilson, to restrain the collection of certain county taxes assessed and levied upon Blake’s personal property in the year 1876. The facts, pleading, and proceedings, are sufficiently stated in the subjoined opinion.

Error from Shawnee District Court. Injunction, brought by the A. T. & S. F. Railroad Company, plaintiff, against John Francis, as treasurer of state, defendant.

Error from, Allen District Court. All necessary facts and proceedings are stated in the subjoined opinion. The district court at July Term 1876, gave judgment in favor of Van Riper, plaintiff, and the Railroad Company brings the case here.

Error from Marshall District Court. Action by Thompson and wife to compel the Loan-and-Building Association to surrender and deliver up a certain note and mortgage given by plaintiffs to defendant. All the facts are set forth in the opinion, infra. The district court, at December Term 1875, gave judgment in favor of plaintiffs, as prayed for, and the Loan-and -Building Association brings the case here.

Error from Leavenworth District Court. Action by McNair against Sidney Smith and Walter S. Smith, partners as Smith & Son, to recover the amount paid defendants by plaintiff’s assignor for three certain false and forged school-district bonds. All the facts are stated in the subjoined opinion. The district court, at the December Term 1875, gave judgment in favor of McNair for $929.79 and costs, and defendants bring the case here.

Error from Atohison District Court. Wagner sued the Railroad Company for alleged personal injuries as having occurred in March 1875, in the city of Atchison. Wagner was a day carpenter working in the employ of the American Bridge Company then constructing a bridge across the Missouri river, and was at work in a small board shop put up by said bridge company within four or five feet of the Railroad Company’s railroad track, near the depot and immediately upon the river bank.

Error from Douglas District Court. The necessary facts, pleadings, and proceedings are fully stated in the subjoined opinion. The district court, at July Term 1875, gave judgment for plaintiffs for $4,833.10, besides interest and costs, and the Insurance Company brings the case here on error for review.

Error from Wyandotte District Court. ■ Action by Bequillard to recover from Bartlett $458.50, the value of certain personal property alleged to have been unlawfully taken by Bartlett and converted to his own use. Bartlett claimed the property as assignee in virtue of an.assignment made to him for the benefit of Bequillard’s creditors, while Bequillard claimed that said property was exempt to him under the exemption laws of Kansas.

Error from Ellis District Court. At the April Term 1876 of the district court, Dabney recovered judgment against Grant for $200 and costs. Grant brings the case here. The opinion contains a sufficient statement of the facts.

Error from Ellis District Court. This case grows out of tbe judgment and proceedings mentioned in the case of between the same parties, ante, p. 388. The judgment in favor of Dabney was rendered on the 22d of April 1876. Grant brought the case on error to this court, and filed the necessary undertaking to stay proceedings, on the 6th of May following.

Error from Cloud District Court. Injunction, brought by Hagaman. The opinion states all necessary facts. The district court, at the October Term 1875, gave judgment in favor of the defendants, the Board of County Commissioners, and W. J. Campbell, county treasurer; and Hagaman, plaintiff, brings the case here.

M'ror from Cloud District Court. Action by Houston, against the commissioners and treasurer of Cloud county, to restrain the assignment and transfer of certain tax-sale certificates and to set aside the treasurer’s sale for taxes upon which such certificates were based. The district court gave judgment in favor of defendants, at October Term 1875, and plaintiff brings the case here.

Error from Cowley District Court. Action by Ballou, brought for the purpose of having the entry made by Brake of a certain quarter-section of land of the Osage Diminished Reserve Lands, in Cowley county, declared to have been made by him in trust for the use and benefit of Ballou, and to obtain a conveyance of the north half of it from Brahe, on the grounds that the parties had, prior to ’ the entry, made an agreement attempting to create such a trust, and that in…

Error from Nemaha District Court.' All necessary facts appear in the subjoined opinion. Hastings, plaintiff, recovered judgment against Clippenger and wife, at May Terpi 1876 of the district court, and defendants bring the case here.

Error from Lyon District Court. At the March Term 1876 of the district court, Ireland recovered judgment against the Railroad Company, and such company brings the case here on error. The facts are stated in the opinion.

Error from Cloud District Court. Hiliare Lanoue was the owner of several pateéis of real property in Cloud county. Held: and a decree of foreclosure and for the sale of the mortgaged premises was duly made and entered. The priority and amounts of the respective liens found by the court were as follows: first, in favor of the Mo. Valley Life Ins.

Error from Mush District Court. All necessary facts are stated in the opinion. Fisher applied to the Board of County Commissioners and asked such board to remit certain personal-property taxes assessed against him. The county board refused to remit the taxes. The question of the legality of the taxes was by agreement submitted to the district court, and such court, at the May Term 1876, held and decreed that such taxes were legal and valid.

Error from Leavenworth District Gourt. Civil action, brought by Castle, to recover damages sustained by him by reason of a certain alleged libel published by Houston. The defendant, Houston, was the editor and publisher of the Daily Commercial, a newspaper printed at Leavenworth, where Castle resided.

Error from Davis District Court. Action by Frank O’Riley and John K. Wright, as partners, against John Anderson and Moses Waters, claiming $500 damages for injuries to plaintiff’s horse and buggy. The facts fully appear in the opinion. Waters demurred to the petition, claiming that it did not state facts sufficient to constitute a cause of action as to him. The district court, at the April Term 1876, sustained the demurrer.

Error from Leavenworth District Court. Action by Kuhn, to recover rent alleged to be due from Keeling for the use and occupation of a certain dwelling-house for the period of fifteen months, from 1st October 1873 to 31st December 1874. The rent claimed to be due had accrued in favor of one Henry Kuhn, and he had assigned his claim to P. H. Kuhn, the plaintiff. Trial at March Term 1875. Verdict and judgment for plaintiff for $285.59, and defendant Keeling brings the case here.

Information for bigamy. The information charged that White, being a married man, and having actual knowledge that he had a wife, to-wit, one Ella White, then being and living in the state of New York, from which said wife he had never been divorced, did, at the county of Wilson, in the state of Kansas, in the month of February 1877, unlawfully marry and take to wife another person, to-wit, one Miss M. F. McG-., etc. White was found guilty, at the May Term 1877, and sentenced…

M'ror from Saline District Court. In an action against her husband, B. A. Litowich, and two others, as defendants, Mrs. Blanche Litowich, as plaintiff, obtained an order directing her said, husband to pay a certain sum for her support pending the action, and for the expenses of the suit, and an order restraining her husband and Ed. Wittman, one of said defendants, from conveying or disposing of certain property. These orders were granted 31st August 1877, at chambers.

Error from Wyandotte District Court. Ejectment brought by Mastín, as plaintiff, against Gh'ay and two others as defendants. Cray’s co-defendants were tenants, holding under him. Mastín claimed title in fee to the land sued for, and claimed the right of possession. Gray admitted possession in himself, and claimed as purchaser from the original owner. All the facts are stated in the opinion. Trial at the April Term 1876.

Error from Cherokee District Court. Replevin, brought by the Missouri & Kansas Transportation Co., against Palmer, as sheriff, to recover possession of a steam engine which had been taken by such sheriff upon an order of attachment against the property of one Thompson. Trial at October Term 1876. Judgment for defendant, and plaintiff brings the case here.

Krror from Labette District Court. Assault and battery. Hudson had judgment against Karr, at the February Term 1877 of the district court, for $136 as and for his damages sustained 'by reason of certain injuries to his person inflicted by Karr. New trial refused. Karr brings the ease here.

Error from, Nemaha District Court. Action by Shumaker and two others to recover back the purchase-money paid by them to O’Brien for a certain bull. The action was grounded upon alleged fraud and deception on the part of O’Brien at the time of the sale regarding the property sold. Trial at April Term 1876. A demurrer to the evidence was sustained, and judgment given against plaintiffs for costs. They now bring the case here.

Two cases, brought here by petition in error—one from the district court of Atchison county—the other from the district court of Brown county. The actions were criminal, not civil; and questions of practice only, as to the proper mode of bringing such cases here, are decided. The Beisner case was tried at the March Term 1877 of Atchison district court; that of McQilvray at the April Term 1877 of Brown district court. All necessary facts are stated in the opinion.

The only questions here relate to costs and fees of officers and witnesses in criminal actions for disturbing the peace; and all necessary facts and proceedings are stated in the opinion. The county attorney of Allen county, upon the request of the county board of said county, brings the case here by appeal taken in the name of The State.

Error from Johnson District Court. At the March Term 1876 of the district court, Wilson recovered a judgment against the Board of County Commissioners for $28.05 — of which $26.55 was for fees earned in a certain criminal case tried before him as a justice of the peace, and $1.50 was for fees as a witness on the part of the state in the same ease upon the trial thereof in the district court. The Board of County Comm’rs brings the case here.

Error from Leavenworth District Court. At the March Term 1876 of the district court, Young recovered judgment against the Railroad Company for $10,000, for the loss of his right hand, which was injured and crushed while he was trying to couple cars on defendant’s railroad, at Lawrence, in September 1867.

Error from, Labette District Court. Judgment was given by a justice of the peace in favor of Wright, defendant, for $3.55, from which he appealed to the district court, claiming that such judgment was too small. Brooks, plaintiff, filed a motion in the district court to dismiss the appeal.

A criminal complaint was made by one James Ham before a justice of the peace, charging Archie O’Laughlin and Wm. Ferguson with willfully and maliciously obstructing a highway, commonly called the “Santa Fé Road,” at the points where said road crosses the south and east lines of the southwest quarter of section 3, township 14, range 24, in Johnson county. The action was brought under sec. 17, ch. 108, laws of 1874.

From a judgment and conviction rendered at the May Term 1877 of the district court, Howard appeals. The subjoined opinion states all necessary facts.

Error from Linn District Court. Two ACTIONS for the partition of real property were brought by Davis against Kelley and several other parties. Partition was duly made, and the district court in confirming the same allowed an attorney-fee to the plaintiff, taxed the same as part of the costs, and adjudged it to be a lien upon the lands set off to the parties respectively. Kelley complains of such action, and brings the cases here on error for review.

<p> Error from Franlclin District Court. </p> <p>Injunction, brought by Haxton to restrain Harris as county treasurer from selling six certain city lots for unpaid taxes. The Board of County Commissioners of Franklin county was joined as a co-defendant. Haxton purchased the lands from one Daniel Baldwin, the former owner, in March 1875. The taxes for the alleged non-payment of which the county treasurer had advertised the lands for sale were those assessed in and for the years 1872 and 1873. A former county treasurer in 1873 had illegally withheld the lands from tax sale, and had illegally issued a pretended tax-sale certificate to one Eisk for the taxes of 1872, which sale-certificate in 1874, in an action wherein said Baldwin was plaintiff and said Eisk and others were defendants, was by the district court adjudged void, and its surrender and cancellation ordered. Other facts appear in the opinion, infra. The district court, at the March Term 1876, refused the injunction prayed for, and Haxton, plaintiff, brings the case here on error.</p>

Error from Lyon Listriot Court. Trespass, brought by Rich. Trial at the September Term 1875 of the district court. Verdict and judgment for plaintiff, and the Telegraph Company, defendant,, brings the case here. All necessary facts appear in the subjoined opinion.

Error from Wilson District Court. recovered judgment against Thomas J. Clark, defendant, for $1,000, and costs, at the May Term 1876 of the district court, and defendant brings the case here on error. The facts are fully stated in the opinion. for plaintiff in error, contended, that a plaintiff should know his own, and for all purposes of pleading must be presumed to know it—and cited 4 Bac. Abr. 10, 20; Taylor, (N. C.) 148; 4 South Car. 32; 1 Bosanquet & Puller.

M'ror from Washington District Court. The district court, at the August Term 1876, affirmed a judgment previously rendered in favor of Vedder by a justice of the peace. School District No. 67, of Washington county, defendant before the justice, brings the case here on error. All necessary facts are stated in the subjoined opinion.

Error from Cowley District Court. Questions of practice only are decided in this case, and all necessary facts and proceedings are fully stated in the opinion. The order complained^ of was made at the May Term 1877 of the district court, and Hochett, plaintiff, brings the case here.

Error from Doniphan District Court. This action was commenced by Harper in a justice’s court, alleging in a bill of particulars, “that the Railroad Company was owner of a line of railroad over S. J of S.W. -j- of section 31, T. 3, R. 21,” onto which the plaintiff’s colt wandered for want of a fence, without the owner’s fault, and was there killed; that demand for payment had been made, and asking judgment for $40, the value of the colt, and $25 fee for the plaintiff’s…

Error from Shawnee District Gowrt. Ball had judgment for $135 and costs, at the May Term 1875 of the distinct court, T). B., judge pro tern., presiding, and the Pailway Company brings the case here. All necessary facts appear in the opinion.

The district court, at the December Term 1877, adjudged and required Michael Coughlin, James Coughlin, and Bridget Coughlin, to enter in a recognizance in the sum of $250, to appear before that court within one year from the date of the order, to keep the peace, and to pay the costs. From such .decision and order said parties appeal to this court. All necessary facts are stated in the opinion.

Error from Saline District Court. Action by Dunmeyer, for breach of covenant of possession. Trial at the May Term 1876, and judgment for plaintiff. The Bailway Company, defendant, brings the case here.

Ashmore was charged by information, in the district court of Shawnee county, with having feloniously shot and killed his wife. The alleged offense was committed in November 1872, and the information charged murder in the first degree. Upon Ashmore’s application the case was sent to Osage county for trial, and was there tried at the November Term 1874.

Error from Allen District Court. Action on school-land contract executed by Wm. H. Emmert, and R. A. McCulloch, on the purchase by them of certain school lands in Allen county. The contract was executed on the 14th of August 1871, and was for the purchase of forty acres, at the price of $4.50 per acre.

Error from Lyon District Court. The district court, at the March Term 1876, gave judgment in favor M. Birdsall and J. W. Frank, plaintiffs, and defendant Beck brings the ease here. The facts fully appear in the opinion.

Error from Leavenworth District Gourt. Action by Sass to recover ¿lie amount of certain money alleged to have been stolen by Winter, and interest thereon. Trial at the September Term 1876. Verdict and judgment for plaintiff. New trial refused, and Winter brings the case here. The principal facts are stated in the opinion, infra.

Error from Lyon District Court. All necessary facts and proceedings appear in the subjoined opinion. Judgment was given in favor of Holmes, and Brown, defendant, brings the case here.

Error from Harvey District Court. All necessary facts appear in the subjoined opinion. Crawford had judgment at the September Term 1876 of the district court, and Hubbard brings the case here.

Error from Doniphan District Court. Ejectment, brought by O’Driscoll against Soper, to recover possession of lots 7 and' 8, in block 23, in the original town of Troy. Plaintiff formerly owned the property, and claimed to be the owner in fee simple, and entitled to the possession.

jError from Chase District Court. Mickel, a minor, by Thomas Gordon, his guardian, brought ejectment against Hicks and wife, to recover possession of the N. J of the N.E. J of section 12, township 17, range 12 east, being eighty acres of land in Lyon county, and also to recover for the rents and profits of said lands for three years next before the commencement of the suit. Plaintiff claimed as owner in fee simple, as heir-at-law of Zilpha A. Mickel.

Error from Ellis District Court. On the 1st of May 1875, the K. P. Railway Company made out and returned to the county clerk a sworn statement of its property subject to taxation for the year 1875, in Ellis county, stating the kind and value of each class of property, as required by law. The aggregate value of all its property, as returned by the plaintiff, was $163,510.37.

Error from Wyandotte District Court. Foreclosure of mortgage, brought by Kirlcbride, as plaintiff, against Brown and six others, as defendants. The note was for $200, and interest at twelve per cent, per annum. Said note and the mortgage were dated 20th December 1864, were made in favor of one Cassandra F. Clark, and were executed by all the defendants except Bartlett and Sawyer. Plaintiff was the assignee of said Clark. Trial at the April Term 1876.

Error from Barton District Court. Action by Mary A. Typer as plaintiff, to establish a trust, and compel a conveyance.

Error from Cowley District Court. Injunction, brought by Ballou, as plaintiff. The district judge, on the 6th of July 1876, at chambers, granted a temporary injunction, restraining defendant Waite from proceeding to enforce certain mortgages. From such order Waite appeals, and brings the case here on error.

Error from Bourbon District Court. Foreclosure of mortgage, brought by Opdylce. The defendants were George A. Crawford, St. Louis Mutual Life Insurance Company, Risden Owen, Ira D. Bronson, Hap-good & Co., James Hart, and R. & J. S. McCord. The mortgage was given in July 1871, and the mortgaged property consisted of four unimproved lots in the city of Fort Scott. Crawford was the mortgagor.