Volume 20 — Kansas Reports

jError from Jackson District Court. In June 1876, Phillipi recovered a judgment before a justice of the peace for $35 damages for killing a cow and injuring another, and for $15 for attorney-fees, and costs of suit, against the Central Branch U. P. Railroad Co. No testimony was offered by the Railroad Company. The evidence presented in behalf of Phillipi was all preserved in a bill of exceptions.

Error from Brown District Court. At the August Term 1875 of the district court, Tobie recovered judgment for $129.33 as and for the damages sustainecl to the lands belonging to the estate of her testator by reason of the laying out and opening'of a highway through such lands.

Error from Lyon District Court. The only question here is as to the legality of an order made by the district court, at'November Term 1876, taxing certain costs in an equity action to The City of Emporia. The city brings the case here. The opinion contains a sufficient statement of the facts.

Error from Miami District Court. Foreclosure of mortgage, brought by the Life Association of America, a foreign life insurance company, against Abraham Cook and wife, and H. E. Westerman. All necessary facts and proceedings are set forth in the opinion, infra.

Error from Wilson District Court. Replevin, brought by Hannah A. Callison, a married woman, to recover the possession of two horses and two mules, of the aggregate value of $500. The plaintiff claimed to be the owner of the property in controversy, and that the same was wrongfully detained from her possession by the defendant.

Error from, Cherohee District Court. On the 16th of November 1876, Souder brought suit against Steele and Brigham, on a promissory note of which the following is a copy: $440. Columbus, Kansas, July 8th, 1870. Four months after date, T promise to pay to the order of George F. Souder, the sum of four hundred and forty dollars, value received. Wm. M. Brigham.

Error from Saline District Court. Action commenced before a justice of the peace by Nichols, as plaintiff, to recover for work and labor done and performed by him for Sutton. The return-day of the summons was 15th November 1876. The entry made that day by the justice is copied into the opinion, infra.

Error from Doniphan District Court. Injunction, brought by Fetter, against Poirier, trustee of Washington township.

Error from Lyon District Qourt. McMillan, at the March Term 1877, recovered a judgment against Baker, on an undertaking given by Baker and another in a replevin suit. Afterward, but at the same term, the district court set aside and annulled said judgment; and of this latter proceeding McMillan complains, and brings the case here for review. All necessary facts are stated in the subjoined opinion.

Ph'ror from Osage District Court. Fleak was a deputy-sheriff, and as such officer, levied a writ of execution held by him on certain property which Cassidy claimed was exempt from seizure and sale. Cassidy,. to recover such property, brought replevin against Fleak, (and not against the sheriff.) The process was directed to the coroner, and for certain supposed defects in the proceedings the district court, at April .Term 1877, dismissed the action.

Error from Neosho Distriét Court. Medler, in November 1874, commenced suit in a justice’s court against Weeks upon the following promissory note: “$45.00.

Error from, Atohison District Court. On 15th November 1876, Ingram commenced an action against the Railroad Company, before a justice of the peace, to recover damages for the killing of a certain mare, on the line of the railroad, and also for an attorney-fee for the prosecution of the action. Ingram in his bill of particulars alleged that the Railroad Company neglected to inclose its road with a good and lawful fence, and that by reason thereof the animal was killed.

Error from Jefferson District Court. Hudson had judgment at the November Term 1875- of the district court, and- the Board of County Commissioners brings-the case here for review. The subjoined opinion contains a full statement of all necessary facts.. that upon the agreed statement of facts Hudson was-not entitled to- recover, cited, I Pars. Oontr. 6; 4 Wheaton, 197; 2 Bl. Com. 446;. 2 Leon, 224;. Cooley Const. Lira. 275;. 9 Kas. 171.

Error from Greenwood District Court. Action by School District No. 70, plaintiff, against School District No. Jj.9, defendant, to recover a sum of money awarded by the county superintendent to the former district on its formation from the territory formerly'belonging to the latter district. Trial at the April Term 1876 of the district court. Finding and judgment in favor of plaintiff, and defendant brings the case here.

Error from Wilson District Court. Action by Smith, as .administrator. Trial at May Term 1876 of the district court. Findings and judgment for plaintiff, and against Clary and Ferguson, defendants. Defendants bring the case here on error. All necessary facts and proceedings are stated in the opinion.

Error from Franklin District Court. Mongold recovered judgment against Tightmeyer, at the November Term 1875 of the district court, and Tightmeyer brings the case here on error. The opinion contains a statement of all necessary facts and proceedings. The district court erred in admitting over defendant’s objection the proof of trespass. The court held the tort waived, and that assumpsit would lie for such demand with other claims on contract.

Error from Leavenworth District Court. The defendant was tried at the September Term 1877 in the district court, and found guilty of burglary in the first degree, and grand larceny, and sentenced to the penitentiary for eleven years; and he now appeals to this court, and prays that the judgment be reversed and set aside. 1.

Error from, Nemaha District Court. A question of practice only, is here decided, and the opinion contains a sufficient statement of the proceedings.

Error from Bourbon District Court. Action brought by Mrs. Wright for the partition of certain lands, to an equal moiety of which with plaintiff in error, Mrs. Couch, she claimed title as heir-at-law of Henrietta Andrick, deceased. The answer denied that plaintiff had any title to or interest in the lands; and the only question at issue was, whether under the statute of descents Mrs. Wright was an heir-at-law of said Henrietta Andrick.

Error from Saline District Court. The district court, at the May Term 1876, sustained a motion to make plaintiff’s petition more definite and certain; and from such ruling, and the judgment thereon, plaintiff appeals, and brings the case here on error.

Error from Montgomery District Court. Action, brought in the name of School District No. 101, as plaintiff, against Cary Oaks, county treasurer, and School District No. £. Trial at March Term 1877, of the district court. A temporary injunction which had been previously granted, was dissolved, and judgment was given in favor of defendants for costs. The plaintiff brings the case here.

Error from Harvey Distriot Court. The action below was against Trembly, brought in the name of “ The State of Kansas, upon the relation of N. E. C.” The relator was an unmarried woman, and the proceeding was to compel Trembly, as the putative father of an illegitimate child, to support such child. The justice before whom the proceeding was instituted required Trembly to recognize for his appearance to the district court, as provided b)r § 5 of ch. 47, Gen. Stat.

Error from Osborne District Court. Action by Closon, against Hays and two others, on an undertaking given to stay waste, etc. Plaintiff had judgment, at April Term 1877 of the district court, and Hays brings the case here.

Error from Franklin District Court. Action by Dysert and Combs to recover a reward offered for tbe arrest of an escaped prisoner. All the facts appear in the opinion. Trial at March Term 1877. Verdict and judgment for plaintiffs, and Stone, defendant, brings the case here.

Error from Cherokee District Court. On the 2d of December 1874, Hunt conveyed by general warranty deed certain property situated in the city of Columbus, to Martha Hunt, his daughter. On the 5th of said December Spencer commenced an action against Hunt, and thereafter recovered a judgment against him for $950, and costs.

Error from Cowley District Court. Action originally commenced in the name of John B. Baxter against Hanlin before a justice of the peace for the recovery of damages alleged to have been done by Hanlin’s cattle on certain described real estate. The bill of particulars did not allege to whom said real estate belonged, or who had been injured thereby. Summons was issued and served on Hanlin, who appeared before said justice at the hour set for the trial.

Error from McPherson District Court. Replevin, brought by Hall and two others, partners as Hall, Waite & Co., against Draper and wife, to recover a Smith American organ, originally delivered by plaintiffs to one Leveridge upon a conditional sale to him. Defendants claimed title in themselves, under a pretended sale made by Leveridge. Trial at May Term 1877, of the district court.

Et'ror from Riley District Court. Injunction brought by the Railway Company to restrain the collection of an alleged illegal levy of taxes upon the property of such company in the county of Riley for the year 1875. The district court ’granted a temporary injunction, but on the trial, at the September Term 1876, dissolved that injunction, and rendered judgment for the county. The Railway Company brings the case here.

Error from Dyon District Court. Questions of practice only, are decided in this case. The orders complained of were made at the September Term 1875 of the district court. The plaintiff brings the case here.

Error from Cowley District Court. Foreclosure of mortgage, brought by Black against Jackson as administrator de bonis non of the estate of Lewis Dressell, deceased. Ida, Elizabeth, Charles, Eunice, August, and Lewis, minor heirs of said Lewis Dressell, deceased, were joined as co-defendants. Defense was made for the heirs. Trial at October Term 1876 of the district court.

Error from Wyandotte District Court. Judgment was given in favor of the City of Wyandotte, defendant, at the March Term 1874 of the district court. A new trial was refused, and Gibson, plaintiff, brings the case here.

Error from Reno District Court. Action to compel an accounting, brought by one partner against his copartners. The cause was tried before S. B. Z., sole referee; and upon the findings and report of the referee the district court gave judgment, at November Term 1876, in favor of Conn, plaintiff, and against Norman and Ingham, defendants. New trial refused, and defendants bring the case here on error.

Error from Harvey District Court. At the September Term 1876, of the district court, Ort, as plaintiff, recovered judgment against Floyd & Vanosdell, defendants. New trial refused, and defendants bring the case here on error.

Error from Linn District Court. On the 10th of July 1876, Keevil & Turner brought their action against McComb & Duncan, before a justice of the peace, and subsequently recovered a judgment therein for $279.10, and costs. Upon proper proceedings and process duly had and obtained in such action, J. V. Donaldson was duly summoned on the 11th of said July, as garnishee of said. McComb & Duncan.

Fh'ror from Lyon District Court. Fobeclosube of mortgage, brought by Wm. Jamison, as * trustee, against Bancroft and wife. All the facts and proceedings are sufficiently set forth in the opinion, infra. The district court, at September Term 1876, gave judgment in favor of defendants, and Jamison brings the case here on error. 1. The court clearly erred in not making the additional finding requested by plaintiff.

Error from Leavenworth Distriet Court. All necessary facts and proceedings are stated in the subjoined opinion. The order of the district court appealed from, was made on the 6th of July 1875. Green brings the case here on error.

Error from Dickinson District Court. Trespass, brought by Sexton, in his lifetime. Action continued in names of his administrators. Trial, and judgment in favor of plaintiffs, at September Term 1875. Reed and Reed, defendants, bring the case here. The subjoined opinion contains a sufficient statement of the facts and proceedings.

Error from Chase District Court. Brockett had judgment against Pratt, at May Term 1876-of the district court, and Pratt appeals, and brings the case-here on error.

Error from Wyandotte District Court. Action on promissory note, brought by Bigger. Bovard set up a failure of consideration. Trial at April Term 1876. Verdict, and judgment for defendant. Plaintiff brings the case here. The facts are stated in the opinion.

Error from Barton District Court. Replevin, to recover possession of a frame building, brought by Morris, against Moses and one Diffenbacker.One Thos. L. Morris erected the building on leased land situated in the city of Great Bend. Plaintiff claimed title to the building as purchaser from said Thos. L. Morris. The date of such purchase was 14th August 1874. Subsequently to such purchase, creditors of said Thos.

Original Proceedings in Quo Warranto. Action in the name of The State, upon the relation of Charles Tholen, to try the title to the office of justice of the peace. The petition was filed on the 19th of April 1878, and was signed by Joseph W. Taylor, as county attorney of Leavenwqrth county, and was verified by Tholen, relator.

Error from Marion District Court. Action by Miller and wife to set aside and cancel certain conveyances. The necessary facts are set forth in the opinion. The district court, at April Term 1876, gave judgment in favor of Miller and wife, plaintiffs; and Ainsworth and Stone, two of the defendants, now bring the case here on error.

Error from Osage District Court. Complaint for violation of § 3 of the dramshop act. Plea, former conviction. Trial by the court, without a jury, at the October Term 1877. Finding, guilty. The defendant was sentenced to pay a fine of $100, and the costs of prosecution, and to stand committed until the same were paid — and he now brings the case here by appeal.

Error from Chase District Court. Action by Doolittle as plaintiff, against J. W. Ferry and C. C. Watson, partners, defendants, as indorsers upon the following promissory note: $700. Cottonwood Falls, Kas., Dec’r 9, 1873. Five months after date I promise to pay to James W. Ferry and C. C. Watson, or order, seven hundred dollars, for value received, at eight per cent, per annum until paid. Samuel D. Hudson. The indorsement on the note was as follows: “Pay to J. 8.

Error from Clay District Court. All necessary facts, pleadings, and proceedings are set forth in the opinion. Linsley, as plaintiff, had judgment at tbe November Term 1876 of the district court, and defendant Fanson brings the case here on error.

Error from Crawford District Court. Questions of practice only, are decided' in this case. The-district court, at the January Term 1876, gave judgment in favor of Bean, defendant, and plaintiff, Greenwood, brings the case here.

Error from Brown District Court. The subjoined opinion contains a full statement of all necessary facts. The district court, at April Term 1875, gave judgment in favor of the Board of County Commissioners, defendant, and plaintiff Sapp brings the case here for review.

Error from Wilson District Court. Injunction, brought by Fox against Hudson and A. E. Smith, sheriff, etc. At the February Term 1877, the district court sustained a demurrer to the petition, and thereupon made an order dissolving a temporary injunction theretofore granted. From such order, and decision, Fox appeals, and brings the case here.

M'ror from Osage District Court. Foreclosure of mortgage, brought by Wade, as plaintiff, against D. F. Blandin, Bailie F. Blandin, and the Carbon Coal and Mining Company. The mortgage was executed by D. F. Blandin alone; was dated 19th of March 1874; was upon a quarter-section of land lying in Osage county; and was made to and in favor of Wade, to secure three promissory notes of $400 each, executed on said 19th of March, by said D. F. Blandin.

Error from, Barton District Court. Ejectment, brought by Clayton, against School District No. 1 of Barton County. Second trial at March Term 1877 of the district court. Findings and judgment for defendant. New trial refused, and Clayton brings the record here for review.

Error from Labette District Court. Action, brought by the First National Bank of Parsons, as plaintiff, against Geo. W. Franklin, J. E. Waskey, J. M. Davidson, H. P. Newlon, and U. B. Bridgman, defendants.

M'ror from Wyandotte District Court. Action brought by Tutt and two others, as plaintiffs, upon the official bond of Margaret E. Scroggs, as administratrix -of the estate of James A. Cruise, deceased, against said administratrix and Jesse J. Keplinger and Nicholas McAlpine, .sureties on said bond, as defendants.

Error from Leavenworth District Court. The district court, at March Term 1877, gave judgment in favor of Stillings & Fenlon, against Mitchell, defendant. New trial refused, and defendant brings the case here.

Error from Franklin District Court. All necessary facts and proceedings are set forth in the subjoined opinion. The district court, at the May Term 1874, gave judgment in favor of Squires, plaintiff. Baldwin, defendant, brings the case here.

Error from Franklin District Court. Foreclosure of mortgage, brought by Davenport against Asa L. Lathrop and Carrie R., his wife. The mortgage was on defendants’ homestead, and was given to secure a note for $3,000, signed by both defendants, dated 5th October 1871, payable one year after date, with interest at the rate of 12 per cent, per annum.

Error from Shawnee District Court. On the 5th of January 1874, Chouteau, Harrison & Valle, as plaintiffs, recovered a judgment in the district court of Shawnee county, against Franklin L. Crane, C. K. Holliday,, and two others, for $12,902.15, and costs. On the 29th of April 1875, Chouteau, Harrison & Valle assigned and transferred such judgment to Henry Levis.

<p> Error from Elk Distriot Court. </p> <p>The district court, at the April Term 1877, sustained a demurrer to plaintiffs’ evidence, and then on motion of plaintiffs dismissed their action, at their costs, without prejudice to a future action. Schafer, defendant, complains of this order of dismissal, and brings the case here.</p>

Error from Saline District Court. The district court, at April Term 1877, gave judgment in favor of Anderson, plaintiff, and the Board of County Commissioners, defendant, brings the case here. The subjoined opinion contains a statement of the facts.

<p>Practice; Saving and Preserving Alleged Errors; Incomplete Record. Where proceedings are prosecuted in a civil action in the supreme court to reverse a judgment of. the district court for alleged error in the admission of incompetent evidence, and because that the findings of fact are against the testimony, and the judgment is unwarranted, and there is presented in the record only the testimony, the findings of fact and law, the judgment, and motion for a new trial, held, that as the pleadings are neither copied in full, nor referred to, nor their substance given, nor any statement of the issues raised by them, or the admissions made in them, the-judgment of the court below must necessarily be affirmed.</p>

Information, charging that Snyder, on the 28 th of November 1876, at Linn county, designedly, feloniously, and with intent to cheat and defraud the firm of Hood & Kincaids, by means of certain false pretenses and representations, obtained the signature of said firm to a certain check or draft for $850, which he took into his possession and negotiated, obtaining thereon the sum of $850 in money. Plea, not guilty. Trial at the August Term 1877.

Information filed in September 1877, charging appellant Adams, and three others (French, Kester, and Swope,) jointly, with the crimes of burglary in the second degree, and grand larceny. Swope was discharged by the prosecution to become a witness for the state. A trial was had at September Term 1877, as to French and Kester, and they were acquitted. A trial was also had as to Adams, at September Term 1877, and the jury disagreed.

Error from Chase District Court. Action by the Railroad Company, against J. S. Doolittler A. J. Crocker, and C. A. Britton,' who were the sureties on the official bond of U. B. Warren, as county treasurer of Chase county. Warren, as such treasurer, on the 5th of December-1870,received from theRailroad Company the sum of $577.52, as condemnation money duly paid to him upon the award of commissioners for the right-of-way through land belonging to one J. R. Blackshire.

Error from Leavenworth District Court. Action by Clawson against Dean as administratrix of the estate of Adam I). McCune, deceased, and another. All necessary facts are stated in the subjoined opinion. Trial at March Term 1876 of the district court. Judgment for defendants, and plaintiff brings the case here.

Error from Douglas District Court. Foreclosure of mortgage, brought by one James W. Oulton as plaintiff, against Richard Rue and wife, Green Lewis, Joseph Hammond, William Edgerton, Thomas Cash, John Herman, Asa Richardson, Robert McKim, and W. W. Cockins, defendants. The defendants, other than Edgerton and Cash, severally answered, setting up their respective claims.

<p>1. Railroad Stock Law of 1874; Night Herd-Law; Duty and Liability of Owner of Stock. L., the owner of a cow, in a township and county in which by the orders of the board of county commissioners, duly made and published, the night herd-law of 1868, and the general herd-law of 1872, were in force, permitted said cow to run at large in the nighttime, and while so running at large the cow strayed upon the track of a railroad, and was run over and killed by a passing train, without any negligence on the part of those in charge of the train. The railroad track at the place where the cow got onto the track and was killed, was unfenced, though it ought to have been fenced under chapter 94 of the laws of 1874. Held, That L. was equally at fault with the railroad company, and acting equally in disregard of statute, and could not therefore recover of it any damages for the killing of the cow.</p> <p>2. ----The case of Hopkins v. K. P. Railway Co., 18 Kas. 464, commented on, and the opinion therein limited.</p>

Error from Miami District Court. The only questions here, are as to the sufficiency of certain proceedings taken at the instance of defendant Bryan, subsequently to a verdict in favor of the plaintiffs, in an action of ejectment. The plaintiffs, Margaret Irvin, and Addison Bauder, are the heirs-at-law of Simeon Bauder, deceased; and as such heirs they claimed the land in controversy, as owners in fee.

Error from, Saline District Court. Action by Garvin, to recover for the use and occupation of certain premises.

Error from Shawnee District Court. Ejectment, brought by Susan Maynes, a Pottawatomie Indian woman, to recover eighty acres of land allotted to her under the Pottawatomie Treaty of 15th November 1861.* The land was subsequently patented to one Anthony F. Navarre, under the supposed authority of the Treaty of 27th February 1867.† Navarre and wife, 25th June 1870, conveyed the land, by deed, to George W. Yeale.

<p>1. Ottawa Indian Lands ; Death of Allottee, Before Patent Issued; Descent of Land. Where a member of the Ottawa tribe of Indians, who, if she had lived until after the issuance of the patents of the lands reserved for the members of that tribe, would have been entitled to receive eighty acres of land, under article 3d of the Ottawa treaty of 1862, died in the fall of 1862, a few months after the ratification and promulgation of said treaty, held, that at the time of her death she had an inheritable estate in such lands, reserved to the members of the tribe, which descended under the laws of the state to the heirs.</p> <p>2. Ottawa Indian Treaty oe 1862; Restriction on Alienation; Heirs of Allottee. The restriction upon the alienation of lands reserved and granted to members of the Ottawa tribe of Indians, contained in the 7th article of the Ottawa treaty of 1862, do not apply to the heirs of deceased allottees.</p> <p>3. Evidence ; Copy of Recorded Deed. Under section 28, chapter 22, general statutes of 1868, a duly-authenticated copy of a deed, or conveyance in writing, copied into the proper books of the office of register of deeds prior to the 31st of October 1868, is competent evidence so far as, and to the extent that, the same may be found recorded and copied in said books of record, when it is admitted by the opposing interest that the original deed is not within the control of the party producing the copy as evidence, notwithstanding any defects existing in the execution, ■ acknowledgment, recording, or certificate of recording the same.</p>

Error from Miami District Court. All necessary facts and proceedings are stated in the subjoined opinion. The district court, at January Term 1875, gave judgment in favor of the Paola Town Company, plaintiff. Krutz, defendant, brings the case here on error.

Original Proceedings in Mandamus. Mandamus, to compel the Republican River Bridge Company to rebuild and maintain a certain bridge across the Republican river. Said Bridge Company was organized in 1864.

Error from Labette District Court. Injunction, brought by-Edwards, to enjoin the collection of a judgment rendered against him in favor of Cary. All necessary facts and proceedings are stated in the subjoined opinion. The judge of the district court, at chambers, on the 1st of September 1877, dissolved a temporary injunction theretofore granted; and from this order Edwards appeals, and brings the case here for review.

Error from Shawnee District Court. Ejectment, brought by Greer and Moore, against Higgins. All necessary facts and proceedings are stated in the subjoined opinion. Plaintiffs bring the case here. 1. Higgins lived on the land with his son, and Stafford, for more than a year before the date of his deed, and there was no change in the character or mode of his possession and occupancy after the making of the alleged deed to him, until after plaintiffs’ deed was recorded.

Original Proceedings in Mandamus. An alternative writ of mandamus was issued upon a petition therefor filed by Bryson, to compel Spaulding, as county clerk of Osage county, to issue a tax deed on a certain tax-sale certificate. Spaulding appeared, and answered the alternative writ, showing cause for his refusal to issue the deed demanded by plaintiff. The facts are fully stated in the opinion of the court.

Error from Jackson District Court. Replevin for a certain dwelling-house, brought by the Railroad Company, against Fritz. All necessary facts are stated in the subjoined opinion. The district court, at October Term 1876, gave judgment in favor of defendant, and the Railroad Company brings the case here on error.

Error from, Shawnee Eisirict Court. Foreclosure of mortgage, brought in the name of The Capitol Bank of Topeka, against Pape and wife, mortgagors. The defenses interposed are fully stated in the subjoined opinion. The district court, at December Term 1875, gave judgment in favor of plaintiff, and defendants bring the case here on error.

<p> Error from Crawford District Court. </p> <p>Action, by Eaton, upon a promissory note, and to foreclose a mortgage. Plaintiff claimed $2,570, with interest. Trial at September Term 1876 of the district court, A. A. H., judge pro tern., presiding. The defense interposed, and the proceedings, sufficiently appear from the subjoined opinion. The jury returned a verdict for plaintiff for $250 — whereupon plaintiff moved to set such verdict aside, and for a new trial, “for error in the assessment of the amount of the recovery, which amount was entirely too small,” and “for error of law occurring at the trial, and excepted to by the plaintiff at the time.” Motion overruled, and judgment on the verdict. The plaintiff brings the case hete.</p>

Error from Bourbon District Court. Brothers brought suit against the city to recover $2,000 damages alleged to have been sustained by reason of personal injuries caused by his stepping into a hole in the sidewalk on Scott avenue, in said city, on the night of 30th December 1876, which caused him to fall, whereby his legs and ankles were injured. Trial at June Term 1877.

Error from Atohison District Court. The district court, at June Term 1877, gave judgment in favor of Robinson, defendant. The plaintiff, Cain, brings the case here. The subjoined opinion contains a sufficient statement of the facts, and of the proceedings.

Error from Montgomery District Court. Parkhurst, as plaintiff, brought this action to foreclose a mortgage on Block 85 and the W. \ of Block 84 in the city of Independence, executed to him on the 17th of February 1873 by W. O. Sylvester and wife. The city of Independence was laid out on section 36, township 32 south, range 15 east. D. T. Camenga, J. M. Anderson, Enoch Sylvester, and Bridget Bradley, were joined as co-defendants.

Error from, Leavenworth District Court. Stjettauer Bros, brought their action against Carney & Stevens, claiming $8,893.23, and interest. Mathew Ryan, and Wm. H. Baird, were joined as co-defendants, but as the case comes here the questions in controversy in nowise affect them. Carney & Stevens answered, setting up several defenses, set-offs, and counterclaims, and demanded judgment in their favor against Stettauer Bros, for $6,000, and interest.

Error from Jackson District Court. The district court, at October Term 1876, gave judgment in favor of Jones for $207.30, and costs, and Sarbaeh, defendant, brings' the case here. All necessary facts and proceedings are set forth in the subjoined opinion.

Error from, Coffey District Court. Charles T. Vandiver, John Vandiver, and Rachel I. Burr, children and heirs-at-law of Noah Vandiver deceased, as plaintiffs, brought their action against Rowena Vandiver, widow of William Vandiver, a deceased son of said .Noah, and Arthur, son of said William, and Cornelia JET. and Wm.

Original Proceedings in Mandamus. Petition for mandamus, filed by S. M. Allen, county attorney of Douglas county, as relator, to compel Norton, probate judge of said county, to entertain an application to inquire into the alleged insanity of one J. McC. An alternative writ was allowed, commanding Norton to entertain the application, or show cause, etc. On the return of the writ, N0>’t°n appeared and moved that such writ be quashed.

<p> Error from Crawford District Court. </p> <p>All necessary facts are set forth in the subjoined opinion. The district court, at April Term 1877, gave judgment in favor of the defendants, and the plaintiff, Loomis, administrator, etc., brings the case here on error.</p>

Error from Neosho District Court. All necessary facts and questions are fully presented in the subjoined opinion. The district court gave judgment in favor of Kendall, at the July Term 1877, and the Trust Company, defendant, brings the case here on error.

Error from Sedgwick District Court. Action by Wichita Savings Bank, to recover of the Railroad Company $758.38, and interest thereon from 6th September 1876.

Error from Atchison District Court. Jones and A. Cushman brought their action to recover the value of a mare owned by them, alleging that such animal had been killed by the moving train of cars of the defendant company. All necessary facts appear in-the subjoined opinion. Jones and Cushman had judgment, at June Term 1877, for $110 and costs, and the Railroad Company brings the case here.

Error from, Atchison District Court. Edwards, at the June Term 1877 of the district court, recovered a judgment against the Railroad Company, for $200 damages, $30 as attorney-fees, and costs of suit. The Railroad Company brings the case here.

Error from, Allen District Court. The Board of County Commissioners of Anderson county brought its action to compel a cancellation of 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 Anderson District Court. Foreclosure, brought by Moore, against B. S. Wilkins, Samantha J. Wilkins, and John Poplin. Decree of foreclosure,, and for the sale of the mortgaged premises, at September Term 1877 of the district court, and Mrs. Wilkins and Poplin bring the case here on error.

Original Proceedings in Mandamus. On the 10th of May 1878, an alternative writ of man- ' damus Was issued, directed to Charles F. Faulkner, Christopher Eberhardt, M. M. Briggs, and Theodore F. Carver, four of the councilmen of the city of Salina, commanding and requiring them, in conjunction with C. S. Radcliff, mayor of said city, and A. W. Wickham, a councilman thereof, and on or before the 20th of said May, to perform certain alleged official duties, or to show cause,…

The decision and judgment appealed from were given by the district court, at the March Term 1877. Reisner brings the case here on appeal.

JEhror from Wilson District Court. Ch. 122, Laws of 1875, page 183, contains the following provision: “Sec. 1.

Error from Marshall District Court. In an action before a justice of the peace, C. H. & L. J. McCormick recovered a judgment against Patterson for $231, and costs. Such judgment was rendered upon a promissory note given by Patterson to the McCormicks for a “McCormick Reaper and Mower,” purchased by him of them in ■February 1876. An execution was issued upon such judgment, and placed in the hands of Voorhees, as sheriff of Marshall county, for collection.

Error from Wyandotte Eistriet Court. This case grew out of the case of Bullene v. Hiatt, reported in 12 Kas. 98. After the decision of this court in the former case, the plaintiff therein, Bullene, caused the property previously attached in that action, (and in which he had recovered judgment,) to be sold under such judgment at the sheriff’s sale, and the property was bid in by Bullene.

Ei'ror from Linn District Court. Action by Agnes H. Taylor, James W. Kennedy, and six others, as plaintiffs, against John T. Kennedy, as defendant. The action was to enforce a trust. All the parties, plaintiffs and defendant, are children and heirs-at-law of Alice Kennedy, deceased, relict of John Kennedy, who died in 1863. Said John and said Alice both died intestate.

Error from Leavenworth District Court. All necessary facts and proceedings are sufficiently stated in the subjoined opinion. Held: because the petition was not drawn .upon the contract mentioned in the answer, that although the city in its answer set up the contract in hcec verba between itself and Bullen, and the assignment of said contract by Bullen to plaintiff of the masonry portion of said contract, and the city engineer’s assent to such assignment, none of…

Error from Atchison District Court. In February 1875, the Atchison Savings Bank recovered a judgment in the Atchison district court against John Costello and M. M. Herrington for $277, and costs. On this judgment a writ of execution was issued to Smith, sheriff of Jewell county. For the alleged failure of such sheriff to properly execute such writ, Martin, an assignee of said Atchison Savings Bank, moved to amerce such officer.

Error from Rice District Court. Action by the Board of County Commissioners, upon the official bond of Blackman E. Lawrence, late county treasurer, to recover twenty thousand dollars of the moneys of Rice county, alleged to have been taken and embezzled by Lawrence. Conner and six others, sureties on the official bond, were joined as co-defendants. An order of attachment was sued out, and levied upon the property of Conner.

Error from Bourbon District■ Court. Beplevin, for a printing-press, claimed by the Parsons Savings Bank, plaintiff.

Error from Osborne District Court. Action, by John Yoxall and three others, partners as Yoxall, Sons & Co., for the purpose of having “ the equitable interest of the Osborne Town Company to block 13 (generally known and called ‘the court-house block’) in Osborne City, established, and that the same be decreed to be applied to the satisfaction” of a judgment previously recovered by plaintiffs against said Town Company.

Error from Sumner District Court. Quo warranto, brought by Cridley, to determine the right to the office of justice of the peace, which was claimed by both Jones and Cridley. Jones was in possession. The district court, at April Term 1877, decided in favor of Cridley, and rendered judgment of ouster against Jones, and the latter now brings the case here on error.

Error from Shawnee District Court. In obedience to the requirements of a subpena duly issued and served, Ballinger attended the Shawnee district court at the April term thereof 1876, as a witness on the part of the state in a criminal action, and necessarily traveled for such purpose the distance of 482 miles, going and returning. The cause was continued until the September term 1876, when Ballinger again attended as such witness, and necessarily traveled the same distance.

Error from Shawnee District Court. Injunction, brought by Knox & Co., to restrain the collection of certain taxes. The plaintiffs were private bankers, doing business at the city of Topeka.

Information, charging that defendant Buffington, at the county of Neosho, on the first day of November 1877, “willfully, unlawfully, and feloniously defiled one Emily B., a female person under the age of eighteen years, by carnally knowing her the- said Emily, she the said Emily being then and there under the care and control of said defendant, she having been confided to his care and protection by her parents.” Plea, not guilty. Trial at April Term 1878.

Original Proceedings in Quo Warranto. On the 23d of January 1878, M. B. Nicholson, county attorney of Morris county, as relator, brought an action in this court in the name of The State of Kansas, plaintiff, against John Maloy, acting mayor, R. M. Wright, acting police judge, D. J. Keizer, acting marshal, O. IT. Shaffer, acting city clerk, R. M. Armstrong, acting treasurer, Ellis Smalley, A. J. Maries W. H. White, IT.

This case is here on error from Miami district court, where Duckett, at October Terra 1877, had judgment. The Railroad Company brings the case here.

This case is here for the second time, on error from Neosho district court. The facts and original pleadings are fully stated in 16 Kas. 220.

Error from Doniphan District Court. In January 1874, Abijah Wheeler died intestate, at the city of Doniphan, in Doniphan county, leaving a widow and children. He owned a farm in Atchison county, and several lots in the city of Doniphan. I. N. Smallwood was appointed administrator of Wheeler’s estate, by the probate court of Doniphan county, and served as such until October 1875, when he was removed, and John F. Wilson was appointed in his place.

Error from Cherolcee District Court. At the October Term 1876 of the district court, West was convicted of the offense of having sold intoxicating liquors, at the city of Columbus, in violation of the ordinance of said city, on the 5th of August 1876. West was a druggist, and kept a drug-store in Columbus.

• Error from Brown District Court. One Brierly had a preliminary examination before a justice of the peace, upon a criminal charge, and was held to bail for ,his appearance at the next term of the district court. A recognizance was given, with ^Samuel Morehead and A. JET. Anderson as sureties. Brierly failed to appear, and his recognizance was forfeited at the April Term 1876 of the district court.

Error from Lyon District Court. In September 1873, Jaques purchased from the Railroad Company two quarter-sections of land, on credit, taking contracts from the vendor reciting the terms of sale and purchase. The taxes for that year on said land amounted to $65.15.

Taylor was convicted of an assault, at the March Term 1878, and sentenced to pay a fine of five dollars, and costs, and he brings the record here for review.

M'ror from Doniphan District Court. All necessary facts are presented in the subjoined opinion. The district court gave judgment in favor of defendants, at September Term 1875, and plaintiff brings the case here.

At the March Term 1878, the defendant was convicted,, and sentenced to imprisonment in the penitentiary, and he-now appeals to this court.

This action is here on error from Cowley district court. 'The action was brought by Gross, as plaintiff, on a promissory note and mortgage made by one Leanah Funk, in her lifetime, to Isaac Parker, Jr. Gross was an innocent purchaser for value of said note and mortgage, before the maturity thereof. W. J. Funk was sued as administrator of the estate of said Leanah Funk, deceased, and John W. Funk was joined as co-defendant, being the devisee of said Leanah.

Error from Doniphan District Court. Replevin, brought by Bayne, as plaintiff. The district court, at December Term 1876, gave judgment in favor of plaintiff, and Bailey, defendant, brings the case here.

Error from Linn District Court. Three separate suits were brought against the Railroad Company, before a justice of the peace, to recover for stock killed by defendant’s train of cars. The respective plaintiffs in such suits were Thomas Shirley, James Fitzmorris, and Celicia M. Pulver. The justice gave judgment in each case against the plaintiff. The cases were appealed to the district court, where a trial was had in each, at the November Term 1877.

Error from Leavenworth District Court. All necessary facts and proceedings appear in the subjoined opinion. The judgment complained of was given by the district court, at November Term 1877.

<p>Lost Baggage; Liability of Railroad Qmwpany. B. bought a railroad passenger ticket at Bloomington, Illinois, for Wichita, Kansas, via Kansas City, Missouri, and the A. T. & S. F. Eailroad. At Kansas City his trunk was checked by the said railroad company over its road to Wichita, and he received a check therefor. -He was carried over the road as a passenger, Snd after arriving at Wichita, presented the check to the proper officers of the company, and inquired for his trunk. It could not be found. Held, the said railroad company was liable to B. for the baggage.</p>

Error from Leavenworth District Court. The district court, at March Term 1878, decided against the homestead claim of Ashton, and gave judgment in favor of Mrs. Ingle, judgment-creditor, and Lowe, sheriff, dissolving a preliminary injunction granted in favor of Ashton by the probate judge, dismissed Ashton’s action, and adjudged that defendants Ingle and Lowe go hence without day, and recover of Ashton, plaintiff, their costs.

Error from Lyon District Court. The district court, at September Term 1877, dismissed an appeal taken by Spangler, as administrator, etc., and Spangler brings the case here.

Error from Jackson District Court. Dewey, as plaintiff in a foreclosure action, recovered a judgment against Sarah M. Orcutt, and Thomas M. Orcutt, defendants. The mortgaged premises were sold under the decree of foreclosure, and were struck off to Linsaott, as purchaser.

Original Proceedings in Quo Warranto. The constitution, as amended in 1873, (laws of 1873, p.249; laws of 1874, p. 217,) contains the following provision : Ant. 2, § 2: “The number of representatives and senators shall be regulated by law, but shall never exceed one hundred and twenty-five representatives, and forty senators.

Error from- Doniphan District Court. Trover, brought by Alexander, to recover from Shonyo the value of a steam engine and boiler alleged to have been taken and converted by Shonyo. In January 1870, one Moyer and his wife executed a .mortgage of three certain lots in the city of White Cloud, to and in favor of Alexander, to secure an indebtedness of $1,500. One Andrew Parker was the owner of said three lots in 1869.

Error from Pawnee District Court. The district court, at the October Term 1877, gave judgment in favor of defendant Curlett, and the plaintiff brings the case here.

Information for murder. All necessary facts and proceedings, and questions presented, fully appear in the subjoined opinion. The defendantwas convicted at the September Term 1877, and he now appeals to this court.