Volume 27 — Kansas Reports

Error from Alien District Court. Ejectment, brought by Neer against Williams, to recover possession of a certain tract of land in Allen county. Trial by the court at the adjourned March Term, 1881, when the court found for the defendant, and rendered judgment accordingly. Neer brings the case here. The opinion contains a. full statement of the facts. 1. The plaintiff is the owner of the land in controversy,, by virtue of the act of July 26, 1866.

At the October Term, 1880, of the district court of Harvey county, plaintiff Leeper recovered a judgment against Spore for $9.25 damages and costs, taxed at $100. Thereafter, at an adjourned term, the court granted defendant a new trial, and ordered that defendant pay all costs up to the time of granting the same. Spore brings the case here.

<p>Loftus filed, in the probate court of Morris county, his-demand against the estate of Manus MoDermott, deceased, for boarding, lodging and caring for decedent’s mother for nineteen years in Indiana. The probate • court refused to allow this demand, and the plaintiff appealed to the district court of that county, and at the April Term, 1880, recovered a judgment for $1,900 and costs. The defendant brings the case here.</p>

At the October Term, 1880, of the district court of Cloud county, Abram and.six others, as defendants, had judgment against Dodd, as plaintiff, who brings the case here.

Error from Clay District Court. At the January Term, 1881, of the district court, the defendant Thompson recovered a judgment against plaintiff Tomlinson, who brings the case here. The opinion states the facts.

Error from Osage District Court. Action brought by Brown against the city of Osage City, to recover damages for personal injuries. Trial at the April Term, 1881, of the district court, and judgment for plaintiff. The defendant brings the case here. The opinion states the facts.

Error from Norton District Court. Action brought by the Board of. Commissioners of Norton county against Shoemaker, the county clerk of that county, to recover, $375, alleged to have .been drawn by defendant, in excess of the salary allowed by ch. 113, Laws of 1877. Trial by the court, upon an agreed statement of facts, at the September Term, 1881, and judgment for the defendant. The plaintiff brings the case here.

Error from Butler District Court. ' Action brought by Uhl against the Township of Douglass, in Butler county, to recover $100, with interest. The nature of the action, and the facts, appear in the opinion. Trial at the September Term, 1880, of the district court, and judgment for defendant. The plaintiff brings the case here.

Error from Wyandotte District Court. Action brought by Mason against the Missouri Pacific Railway Company, for damages sustained by him in the loss of the services of his wife, Emma Mason, and expenses attending her attempted cure, on account of personal injuries received by the wife about the 5th of November, 1879, from the railway company while the latter was walking across the railway bridge over Jersey creek, in the city of Wyandotte.

<p>1. Tax Deed, Invalid; Duty of County Board. Where a conveyance of lands for taxes and the tax sale upon which it is based, made before the adoption of ch. 40 of Laws of 1879, has been adjudged invalid by a court of competent jurisdiction, it is the duty of the board of county commissioners, upon due proceedings had before it by the claimant, to cause the money paid on the tax sale, with the subsequent taxes and charges paid thereon by the purchaser or his assigns, to be refunded with interest.</p> <p>2. Taxes, to be Refunded. Notwithstanding the adoption of sec. 3, ch. 40, Laws of 1879, parties who have purchased at tax sales and obtained-conveyances of land for taxes thereunder prior to the enactment of such statute, will not be deprived thereby of the repayment of the money paid by them on such tax sales, with the subsequent taxes and charges, when such tax sales and the conveyances thereon have been adjudged invalid, as all rights vested under the former statute are saved to the purchasers at tax sales, which materially affect the contract, although such former statute is afterward materially amended or repealed, as it is not within the scope of the legislative power to divest rights by an amendment or repeal of the statute under which they were acquired.</p> <p>3. Tax Deed, Adjudged Invalid; Competent Evidence. Where the holder of a tax deed of the date of December 26, 1876, based upon a tax sale made in 1873 for the taxes of 1872, which has been adjudged invalid in an action brought by him to quiet title, presents his claim to the board of county commissioners for the refunding of the taxes, charges and interest, and such claim is rejected, and thereafter an appeal is taken by him to the district court, and, with the consent of the court, pleadings are filed, and the claimant alleges in his petition the judgment of the district court adjudging the tax sale invalid, such judgment is competent evidence on the part of the claimant as proving that the tax sale has been adjudged invalid, notwithstanding the county was not a party to • the action in which the judgment was rendered.</p> <p>4. Claim for Taxes, Not Barred,. Where the tax sale upon which a tax deed was based was adjudged invalid on October 15, 1880, and the holder of the tax deed presents to the board of county commissioners his claim for the refunding of the taxes, charges and interest, on December thereafter, the claim of plaintiff is not barred by g 47, ch. 25, Comp. Laws of 1879, or by anjr other statute of limitation, notwithstanding the tax deed was executed December 26, 1876.</p>

Error from Atohison District Court. Action brought August 13, 1880, in the district court of Atchison county, by Charles N. Regnier against John Deitz and F. W. Regnier, late partners under the firm-name of Deitz & Regnier, to recover $1,731.55. The petition (omitting court and title) is as follows: “1.

Error from Dickinson District Court. Replevin, brought by Ostrom and two others against Hoisington, as sheriff of Dickinson county, to recover the possession of a stock of drugs. Trial at the May Term, 1881, of the district court, and judgment for the plaintiffs. The defendant brings the case here. The opinion states the facts.

Error from Reno Eistriot Court. At the November Term, 1880, of the district court, defendant Van Zandt recovered a judgment against plaintiff McClurg, who brings the-case here. The opinion states the facts.

Error from Lyon District Court. Action brought by 8. A. Brown and G. B. Shaw, partners as S. A. Brown & Co., against Newman and another, to recover $222.18 with interest, and to foreclose an alleged mechanics’ lien upon certain lots in the city of Emporia. Trial at the March Term, 1881, when the court sustained the lien for a part of the amount claimed, and entered a decree of foreclosure. Defendant Newman brings the case here. The opinion states the facts.

Error from Rice District Court. Action of forcible entry and detainer, brought by Conaway and wife against Gore and another. Trial at the June Term, 1881, of the district court, when the jury rendered a general verdict for the defendants and answered certain questions. New trial denied, and judgment for defendants. The plaintiffs bring the case here. The opinion states the facts.

Error from Butler District Court. Action brought by Aikman against School District No. 16., Butler county, upon a certain written contract. Trial at the March Term, 1881, of the district court, and judgment for the defendant. The'plaintiff brings the case here. The opinion states the facts.

Error from Douglas District Court. Eeplevin, brought by Tenney against Hover, to recover a quantity of wheat in the stack, grown upon the north sixty acres of the S.E.-|- of see. 12, tp. 15, range 18, in Douglas county. Trial November 25,1880, and judgment for plaintiff. The defendant brings the case here.

Error from Greenwood District Court. The nature of the action, and the facts, appear in the opinion. Trial at the August Term, 1881, of the district court, and judgment for plaintiff Sharp. The defendant brings the case here.

At the August Term, 1881, of the district court of Greenwood county, Edwards, plaintiff, had judgment for $39 and costs against the defendant Railway Company, which brings the case to this court.

Error from Anderson District Court. Ejectment, brought by Poplin against Mundell, to recover the possession of certain real estate in Anderson county. The petition was filed May 14,1880, and alleged that Poplin had a legal and equitable estate, and was entitled to the immediate possession of the premises described.

Error from Labette Probate Court. The purpose of the petition in error, filed in this court September 26, 1881, appears in the opinion, infra.

Action brought by McKinstry in the district court of Allen county, against Scott and three others, to foreclose a certain mortgage. Trial at the March Term, 1881, and judgment for plaintiff. The defendants bring the case here.

Error from Lincoln District Court. At the April Term, 1881, of the district court, Faulkner, as assignee of John Geis & Company, recovered a judgment against The Board of Commissioners of Lincoln County, which brings the case here. The facts are stated in the opinion.

Error from Shawnee District Court. The nature of the action, and the facts, appear in Sweet v. Hentig, 24 Kas. 497, et seq., and in the opinion, infra. At the April Term, 1881, Sweet had judgment against the defendants, who bring the case here.

Error from Dickinson District Court. Action brought by the Bird & MicJde Map Company against Jones, to recover $10 upon a certain written contract. Trial at the March Term, 1881, of the district court, and judgment for defendant. The plaintiff brings the case here.' The opinion states the facts.

JErrtír from Morris District Court. Ejectment, brought by Woolston against Baker and another, to recover certain real estate situate in Morris county. Judgment for the plaintiff, at the April Term, 1881. The defendants bring the case here. The facts are stated in the opinion.

Error from, Miami District Court. Ejectment, brought by Jordan against Kyle and another, to recover a certain quarter-section of land in Miami county. Trial, and judgment for defendants, at the May Term, 1880. Jordan brings the case here. The facts are stated in the opinion..

At the February Term, 1880, of the district court of Miami county, plaintiff Dunn recovered a certain judgment against defendants Bennett and another, who have brought the case here.

Action brought by Riggs against The City of Florence and another, to recover damages sustained by certain live stock belonging to plaintiff, by reason of an unsafe and defective public bridge within the limits of that city. Trial and judgmenfc for the defendant, at the April Term, 1879, of the district court of Marion county. The plaintiff brings the case here. The facts appear in Comm’rs of Marion Co. v. Riggs, 24 Kas. 255, et seq. .

Error from Wyandotte District Court. On July 13, 1857, the United States conveyed by patent to Silas Armstrong all of the land in Wyandotte county, Kansas, known as “ Wyandotte Reserve No. 1,” lying north of the Shawnee reserve, and between the Kaw and Missouri rivers and the line between the states of Missouri and Kansas.

Prosecution under § 19, chapter 128, Laws of 1881. At the September Term, 1881, the district court quashed the complaint against the defendant Barrett. The Slate appeals. The opinion states the facts.

Error from Smith Distriot Court. Action by The State against Kurtz and three others, upon a certain recognizance. Judgment for the defendants, at the October Term, 1881, of the district court. The State brings the case here.

Error from Clay District Court. Action brought by Renner, & physician and surgeon, against the Board of Commissioners of Clay County, to recover $620, for professional services.

Error from Clay District Court. Action brought by Morgan against the Board of Commissioners of Clay County, to recover certain taxes! Trial by the court, at the May Term, 1880, and findings of fact and conclusions of law for the defendant. New trial denied, and judgment for the defendant, at the October Term, 1880. The plaintiff brings the case here. The opinion states the facts.

Error from, Elk District Court. Ejectment, brought by McBee against Eckert. Judgment for the plaintiff, at the October Term, 1880, of the district court. The defendant brings the case here. The opinion contains a statement of the facts.

Error from Republic District Court. Action brought by Creen and two others, partners as the Chicago Lumber Company, against the firm of Short & Coats and another, to recover for building materials and also to foreclose a mechanics’ lien. Trial at the October Term,-1880, of the district court, and judgment for the plaintiffs. The defendant Sturges brings the case here. The opinion states the facts.

Error from Ford District Court. Action brought by McConnell against the Adams Express Qompany, to recover the value of a certain suit of clothes. Trial at the January Term, 1881, of the district court, and judgment for the plaintiff, and against the Express Company, which brings the case here. The opinion states the facts.

Error from Marion District Court. February 5, 1881, Law recovered a judgment against English, who brings the case here. The nature of the action,, and the facts, appear in the opinion.

Error from Sedgwick District Court. . Action brought by Austin agaiust Eggleston, to recover compensation as a real-estate broker for selling certain land belonging to defendant. Trial at the December Term, 1880, of the district court, and judgment for plaintiff. Defendant brings the case here. The opinion states the facts.

Error from Reno District Court. . Action brought by Latham and another against Hartford, on a promissory note for $110, dated April 12, 1879, due in seven months after date, with interest from date until paid, at the rate of ten per cent, per annum. Trial at the November Term, 1880, of the district court, and judgment for the defendant. The plaintiffs bring the case here. The opinion states the facts.

Error from Eeno District Court. At the April Term, 1881, of the district court, the defendant, School District No. 81, Reno county, recovered a judgment against plaintiff, Mincer, who brings the case here. The nature of the action, and the facts, appear in the opinion.

Error from Wyandotte District Court. Action in the nature of ejectment, brought by Beicheneker against McAlpine and two others. Trial and judgment for the plaintiff, at the April Term, 1881. The defendants bring the case here. The opinion states the facts. In a controversy involving the location of a boundary line, fixed by commissioners to partition, monuments fixed at the time and mentioned in their written report will control distances. (Hedge v. Sims, 29 Ind. 574.

Error from, Shawnee District Court. Action brought by J. Thomas & Co. against J. K. Flynn, Jerome Mowers and three others, to foreclose a mechanics’ lien on certain premises belonging to Flynn. At the June Term, 1881, of the district court, Mowers recovered a judgment against Flynn, on a note secured by a mortgage ou said premises, which judgment was declared a second lien thereon.

Error from Brown District Court. Action brought by Street against Fish and another, to recover the value of certain personal property. Trial at the February Term, 1881, of the district court, and judgment for the plaintiff for $354.60, and costs. The defendants bring the case to this court. The opinion states the facts.

Error from Allen District Court. Action of forcible entry and detainer, brought by Burdette against Corgan. Trial at the June Term, 1881, of the district court, and judgment for the defendant. The plaintiff brings the case here. The opinion states the facts. 1. The simple question in this case is: Who is the proper party plaintiff in an action of forcible entry and detainer when the lands at the time of the entry are in the hands of an agent?

Error from Atchison District Court. At the March Term, 1881, of the district court, Holton and three others, partners as the Croton Glass Works, recovered a judgment against McPike and another, partners as McPike & Fox, defendants. The plaintiffs bring the case here. The facts are stated in the opinion.

Error from Lyon District Court. Action brought by McCandless against Stratton as principal, and two others as sureties, on an administrator’s bond. Trial at the March Term, 1881, of the district court, and judgment for the plaintiff. The defendants bring the case to-this court. The facts are stated in the opinion.

At the September Term, 1881, of the district court, George Hinkle was convicted of the offense of selling and disposing of mortgaged personal property, for the purpose of defrauding the mortgagee thereof. October 7, 1881, the defendant was sentenced to pay a fine of $ 100, to be confined in the county jail for a period of thirty days, to pay the costs of the prosecution, and to stand committed until such fine and costs were paid. From such sentence, Hinkle appeals. .

Error from, Woodson District Court. Action brought by Turner, a resident citizen and tax-payer of the township of Center, in the county of Woodson, against the Board of Commissioners of that county, and the county clerk thereof, to restrain the issuance of certain bonds of that township to the St. Louis, Fort Scott & Wichita railroad company. This company was afterward made a party defendant. Trial December 15,1881, and judgment for defendants. Turner brings the case here.

Error from Montgomery District Court. The nature of the action, and the facts, appear in the opinion. At the September Term, 1881, of the district court, defendant, White, recovered a judgment against C. Cranz and A. C. Voris, as assignees of J. F. Lieberling & Co., plaintiffs, who bring the case here.

Error from, Miami District Court. At the October Term, 1881, of the district court, plaintiff' ■ Leggett had judgment against the Bailway Company, which brings the case here. The nature of the action, and the facts, appear in the opinion.

Error from Graham District Court. Action brought by Terrell against Morrison and wife, upon a promissory note and a bond for a deed, and to foreclose a vendor’s lien. Trial at the October Term, 1881, of the district court, and judgment for plaintiff and against defendants, who bring the case here. The opinion states the facts.

Error from Crawford District Court. Replevin, brought by Cushenberry against McMurray. Trial at the April Term, 1881, of the district court, and judgment for defendant. The plaintiff brings the case here. The opinion states the facts.

Error from Anderson District Court. Action brought under §422 of the civil code, by Christopher P. Sherman, as administrator of the estate of William C. Sherman, deceased, against Cornelius R. Anderson, to recover the sum of $10,000. Trial at the March Term, 1880, when the court sustained a general demurrer to plaintiff’s evidence, and gave judgment for the defendant. The plaintiff brings the case here. The opinion states thé facts.

Error from Oreenioood District Court. Action brought by Reece against Kerr, to reeoyer $1,500' for the services of plaintiff’s thorough-bred sorrel stallion named “Alhambra” during the seasons of 1879 and 1880. Trial at the May Term, 1881, of the district court, and verdict and judgment for the plaintiff for $870 and’costs. The-defendant brings the case here.

Error from Dickinson District Court. The nature of the action, and the facts, appear in the opinion. At the November Term, 1881, of the district court, Callen and six others, as plaintiffs, had judgment against defendant, Rizer, who brings the case here.

Error from Edwards District Court. Action brought by W. C. Edwards and another, partners as Edwards Brothers, against Ellis and three others, sureties upon a certain appeal bond. Judgment for the defendants, at the November Term, 1881, of the district court. Plaintiffs bring the case here. The facts appear in the opinion.

Error from Saline District Court. At the November Term, 1881, of the district court, Yordy, as plaintiff, had judgment against Duncan, who brings the case here. The opinion states the facts.

Error from Jackson District Court. Action brought by Flint against Noyes, to quiet title to certain roal estate. At the April Term, 1881, the court set aside the judgment herein, and granted the defendant a new trial. The plaintiff brings these orders here for review. The opinion states the facts.

Error from Cowley District Court. Action brought by Tucker against Green, to recover damages for an assault and battery. At the November Term, 1881, the court made an order discharging an attachment as to a part of certain property attached therein, which order the plaintiff brings here for review. The opinion states the facts.

Error from Pottawatomie District Court. This case was before this court at the January Term, 1880, (23 Kas. 474,) and then remanded for a new trial. June 20, 1881, the plaintiff filed in the district court her amended petition, as follows: (Court and title omitted.) “1.

Error from Chautauqua District Court. Action brought by Adam Long and- John Long, partners as Long Brothers, against Murphy, to recover upon a certain promissory note. The nature of the action, and the facts, appear in the opinion. Of certain orders made by the district judge November 26, 1881, the plaintiffs complain, and have brought the case here.

Error from Atchison District Court. The nature of the action, and the facts, appear in the opinion. At the March Term, 1881, of the district court, the defendant Company recovered a judgment against Reisner, who brings the case here. The refusal of the court to allow plaintiff in error to file her petition, and the exclusion of evidence of damages to lot 14 and the hotel thereon, involve the same question of law, and may be discussed together.

Error from Saline District Court.- Action brought by Trosper against The Board of Commissioners of Saline County, to recover damages on account of the establishment of a county road across his land. Trial at the May Term, 1881, of the district court, and judgment for defendant. The plaintiff brings the ease here. The opinion states the facts.

Error from, Bourbon District Court. Action brought by Susan Walrath against W. H. Walrath, for divorce and alimony. At the May Term, 1881, the court overruled defendant’s motion asking that an execution issued upon a certain judgment against him be returned into court, and that no more executions be issued thereon. This ruling the defendant brings here for review. The facts appear in the opinion.

Frror from, Bourbon District Court. Action brought by Field against Davis, to recover damages for personal injuries. Trial at the May Term, 1881, of the district court, and judgment for defendant, and against plaintiff, who brings the case here. The opinion states the facts.

Error from Saline District Court. Action brought by Vancil against- Hagler, on a promissory note. Trial at the May Term, 1881, of the district court, and judgment rendered for the defendant. Plaintiff' brings the case here. The opinion states the facts.

Error from Brown District Court. At the May Term, 1881, of the district court, the defendant Harrington obtained a certain order and judgment against plaintiff Stager, who brings the case here. The facts are stated in the opinion.

Error from Leavenworth District Court. At the December Term, 1880, of the district court, Lamb, as plaintiff, had judgment against defendant Sexton, who brings the case here. The facts appear in the opinion.

Error from Leavenworth District Court. At the December Term, 1881, of the district court, Lamb, as plaintiff, recovered a judgment against defendant, Sexton, who brings the case here. The opinion states the facts.

Error from Brown District Gourt. The nature iff the action, and the facts, appear in Denny v. Faulkner, 22 Xas. 90, et seq., and in. the opinion, infra. Trial at the February Term, l&81, of the district court, and judgment for Lawrence Van Dusen, as administrator de bonis non of the estate of O. P. Faulkner, deceased, for $4,180.53, and against Denny and Redman, who bring the case here.

Original Proceedings in Quo Warranto. Action brought in this court, December 16,1881, by The State of Kansas, on the relation of Gustav Toeplce, to test the title of the defendant, James Clayton, to the office of probate judge of Barton county. The facts appear in the opinion.

Error from, Johnson District Court. Three actions, brought respectively by Newton.Ainsworth, William E. Kelley, and John Hindman, against William Julien, as sheriff, and A. C. Carpenter, as treasurer, of Johnson county, to enjoin the collection of a certain'tax. Trial at the June Term, 1881, of the district court, and judgment in each action for the plaintiff. The defendants bring the cases here. The opinion states the facts.

Error from Saline District Court. Action brought by Wagstaff against Schippel, to recover damages for an imprisonment alleged to be wrongful. December 13,1880, the court overruled plaintiff’s motion fora new trial, and rendered judgment against him for costs. Wagstaff brings the case here. The facts are sufficiently stated in the opinion. The petition in this case in the court below states a cause of action both for false imprisonment and malicious prosecution.

Error from Jefferson District Court. Action brought by Hettie B. Frazier against the Railroad •Company, to recover damages^for personal injuries. Trial at the June Term, 1881, of the district court, and judgment for the plaintiff for $1,000 and costs. The defendant brings the •case here. The facts appear in the opinion.

.Error from Greenwood District Court. Action brought by Reece against Kerr, as surety on an attachment bond. Trial at the May Term, 1881, of the district-court, and judgment for the plaintiff. The defendant brings the case here. The opinion states the facts.

Error from Leavenworth District Court. The nature of the action, and the facts, appear in the opinion. September 14,1880, the court overruled a motion made by Halsey to set aside a certain sheriff’s sale, and sustained the motion of Van Viiet and others to confirm the same. These rulings Halsey brings here.

Error from Wilson District Court. February 17, 1881, the court sustained the demurrer of defendants, Cowles and Eldridge, to the petition of plaintiff, Draper, who brings this ruling here. The opinion states the facts.

Action brought by Hoerseman against Arn, and the sheriff of Wyandotte county, to restrain the sale of land claimed by plaintiff as a part of his homestead. Trial at the December Term, 1880, of the district court of Wyandotte county,, and judgment for plaintiff. The defendants bring the case here.

Error from Leavenworth District Court. On the 11th day of February, 1867, the plaintiff) John 'Thornburgh, the owner of the S.W.J of sec. 30, T. 7, range 21, situate in Leaveuworth county, agreed to sell to one Melinda D. Ballinger, his sister, the W.-J of said quarter, less six acres thereof; and with his wife executed the following bond: “Know all men by these presents, that we, John Thorn-burgh and Rachel his wife, both of the county of Leavenworth and state of Kansas,…

On the 24th day of September, 1881, D. M. Dale, county attorney of Sedgwick county, filed in the office of the clerk of the district court of that county an information in the following words- (omitting caption): “In the name and by the authority of the state of Kansas, I, D. M. Dale, county attorney in and for the county of Sedgwick, in the state of Kansas, who prosecute for and on behalf of said state in the district court of said district, sitting in and for the county of…

Error from Neosho Distrid Court. The nature of the action, and the facts, sufficiently appear in the opinion. The defendants, Johnson and wife, have brought the case here for a review of an order made at the April Term, 1881, of the district court, confirming a sheriff’s sale.

Original Proceedings in Mandamus. Action brought in this court, December 29, 1881, by Wilkie against Howe, as treasurer of Marion county, to compel defendant to receive the sum of $45 from plaintiff as the first installment of the purchase-money for certain school land, or to show cause, etc. . The defendant answered, showing cause. The opinion states the facts.

At the September Term, 1881, of the district court, Smith was sentenced to pay a fine of $10 and costs, for the violation of a certain ordinance of the city of Emporia, from which judgment he appeals. The opinion states the facts.

Error from Smith District Court. Replevin for one Gordon job-printing press, brought by Jenkins against McNall. Trial, and judgment for the defendant, at the May Term, 1881, of the district court. The plaintiff brings the ease here. The opinion states the facts.

Error from, Wyandotte District Court. Action in the nature of ejectment, brought by Wood and •another against Gruble and another. Trial at the December Term, 1881, of the district court, and judgment for plaintiffs. The defendants bring the case here. The opinion states the facts.

<p>.'EbACTice; Judgment in Vacation, Void. Where an action for divorce is tried during the term of the court, but before any judgment is rendered therein the term is adjourned sine die, and afterward the judge of the court renders a judgment in vacation, and the plaintiff moves for a new trial, and gives notice of her intention to prosecute proceedings in error to the supreme court,, which notice is entered on the journal of the trial court, and afterward the plaintiff does prosecute a petition in error in the supreme court, for the purpose of reversing the judgment rendered by the judge of the trial court, held, that the motion of the plaintiff for a new trial, and the notice given by her of her intention to prosecute proceedings in error in the supreme court, and also the judgment of the judge of the trial court, are all void and of no effect; and further, held, that the plaintiff may maintain her petition in error in the supreme court. and have the judgment of the judge of the trial court reversed, and the cause remanded for a new trial.</p>

Error from Saline District Court. Action brought by Trosper against the City of Salina, to recover damages for personal injuries. Judgment for the plaintiff, for $4,030. The City brings the case here. The facts are fully stated in the opinion.

Error from Shawnee District Court. At the April Term, 1881, of the district court, Smith & Names,'plaintiffs, had judgment against Simpson and another, •who bring the case here. The facts appear in the opinion.

Information for murder in' the first degree, charging Willis Jachson with feloniously killing -William McDowell, in the county of Sumner, July 20, 1873. Trial at the April Term, 1876, of the district court, when the jury returned a verdict of guilty of murder in the first degree. Motions in arrest of judgment, and for a new trial, were overruled, and the defendant was sentenced in accordance with the verdict. JaeJcson appeals. The opinion states the facts.

Error from Atohison District Court. Action brought by Cash,against the Railroad Company, for the value of a certain mare belonging to the plaintiff, alleged to have been killed by the defendant in operating its road. Trial by the court at the March Term, 1881, and finding and judgment for the plaintiff for $140 damages and costs. The defendant brings the case here. The facts appear in the opinion.

Error from Cowley District Court. Action brought by Bedilion against the Board of Commissioners of Cowley county, to recover certain fees. Trial at the November Term, 1881, of the district court, and judgment for the defendant. The plaintiff brings the case here. The facts appear in the opinion.

Error from Cowley District Court. At the November Term, 1881, of the district court, defendant Ballou had judgment against Stephens and two others, plaintiffs, who bring the case here. The nature of the action, and the facts, appear in the opinion.

Mr or from Labette JDistriet Court. Action by the Board of Commissioners of Labette County againt Elliott and another, to recover for moneys alleged to have been illegally paid by the county to the defendants. Trial at the May Term, 1881, of the district court, and judgment for defendants. The Board brings the case here. The facts appear in the opinion.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in this court by Willis Jackson, February 24th, 1882. The facts are sufficiently stated in the opinion herein.

Error from Johnson District Court. Action for partition of certain lots in the city of Olathe, brought by Sprague against Ott. Trial at the November Term, 1881, of the district court, and judgment for plaintiff. Ótt brings the case here. The facts appear in the opinion.

Error from Barton District Court. At the November Term, 1881, of the district court, Clayton & Clayton, as plaintiffs, had judgment against defendant Ashton, who brings the case here. The facts appear in the opinion.

Error from Riley District Court. Action brought by Stewart against the Railroad Company, to recover the value of a mare alleged to have been killed by the defendant. Trial at the September Term, 1881, of the ■district court, and judgment for defendant. The plaintiff brings the case here. The facts are stated in the opinion.

Error from Dickinson District Court. Action brought by Barton against the National Land •Company, to recover the value of permanent improvements made by him upon certain land. Trial at the October Term, 1881, of the district court, and judgment for defendant. Barton brings the case here. The facts appear in the opinion.

Error from Neosho District Court. At the July Term, 1881, of the district court, the Board of Commissioners of Neosho county, defendant, had judgment against the plaintiff, Tamer, who brings the case to this court. The opinion states the facts.

Error from Wyandotte District Court. Action brought by Thompson and another, partners, against Irwin and two others, partners, upon an implied warranty of title in the sale of certain cattle. Trial at the April Term, 1881, of the district court, and judgment for plaintiffs for $683.56, and costs. The defendants bring the case here. The facts appear in the opinion.

Error from Shawnee District Court. Replevin, brought by West and another against Weir, to recover possession of certain personal property which they claimed by virtue of a chattel mortgage. At the April Term, 1881, the court sustained plaintiffs’ demurrer to the second ground of defense set up in defendant’s answer, which ruling Weir brings to this court. The facts appear in the opinion.

Error from Crawford District Court. At the January Term, 1881, of the district court, plaintiff Beals had judgment against defendant Edmondson, who brings the case here. The opinion states the facts.

Error from Chase District Court. . The nature of the action, and the facts, appear in the opinion. At the December Term, 1881, the district court adjudged that the road prayed for by Lockerman should be opened upon his payment of all the costs and damages thereof. Plaintiff brings this ruling here.

Error from Aiohison District Court. Action originally brought before a justice of the peace by Ereiund against Lukens and two others, partners as Lukens & North, to recover $35 damages. The nature of the action, and the facts, appear in the opinion. On the trial before the justice, judgment was rendered for the defendants. The plaintiff appealed.

On April 30th, 1880, A. Macdonald and G. C. Hixon & Co. each filed sub-contractors’ liens under a contract with Sanderson & Tracy, contractors, for the erection of a dwelling-house for John Seaton, and on May 8th commenced their actions in the district court of Atchison county, to foreclose their liens. Some months later, Doane, Mai'shall & Park and F. C. Gehrett commenced like actions.

Error from Leavenworth District Court. Action by Corlett against The City of Leavenworth, to recover damages for personal injuries. Trial at the March Term, 1878, of the district court, and judgment for the defendant. The plaintiff brings the case here. The opinion states the facts.

M'ror from Greenwood District Court. Action brought by C. TI. Shoemaker against the St. Louis & San Francisco Railway Company. The following is the petition (omitting court and title): “The plaintiff, C. H. Shoemaker, complains of the defendant, the St. Louis & San Francisco railway cpmpany, and alleges that the defendant is a corporation duly incorporated under and by virtue of the laws of the state of Kansas, and doing business in the state of Kansas.

<p> Error from Coffey District Court. </p> <p>May 17,1881, Marianna Long brought her action against the Missouri, Kansas & Texas Railway Company,• to recover for personal injuries. The petition (omitting court and title) is as follows :</p> <p>“The plaintiff states that at the times hereinafter mentioned the defendant was a corporation, duly incorporated under and by virtue of the laws of the state of Kansas, and owned and operated a certain railroad known as the Missouri, Kansas & Texas railway, together with the tracks, cars, locomotives and •other appurtenances thereto belonging; that said railroad was ■and is constructed and operated through the city of Burlington, in Coffey county, Kansas; that at the time of the injuries hereinafter complained of, and for a long time prior thereto, and long before said railroad was constructed and operated through the said city of Burlington, there was and still is a public traveled highway leading from said city west to North Big creek, or Verdigris Falls, and was and is commonly known and designated as the ‘Eureka road;’ that said public road was and is a road of common and general travel by the public, and had existed and had been so used and traveled continuously by the public as a highway for more than twenty-one years prior to the happening of the injuries hereinafter stated; that the said defendant constructed and operated its said railroad over and across said public road in the city of Burlington aforesaid; that said defendant wholly failed, neglected and refused to construct a good, sufficient and safe crossing at the point where said railroad crosses said public highway, and for more than ten years last past said defendant has wholly neglected and refused to construct any good, sufficient and safe crossing whatever at the point where said railroad crosses said public road as aforesaid, although ofcen requested so to do; that on the 17th day of July, 1880, said plaintiff was-traveling upon said public highway in a wagon drawn by two horses; that it became necessary for her to cross said railroad track where it crossed said public road aforesaid; that while in the act of crossing said railroad track, and without any fault or negligence on the part of this plaintiff, said wagon-was, by reason of the negligent, insufficient and unsafe condition of said crossing, over-set, and this plaintiff was thereby' thrown a great distance and with great force to the ground, thereby dislocating the womb of said plaintiff, and otherwise greatly bruised and injured her; that by reason thereof, plaintiff became and was for a long time sick, and was obliged to- and actually expended about the sum of one hundred and fifty dollars for surgical and other treatment and attendance in attempting to cure herself, and was and is compelled to wear a womb-supporter, has become incapacitated and prevented for life from actively pursuing her business and otherwise injured, to her damage in all in the sum of $10,000.</p> <p>“Wherefore,, plaintiff prays judgment against the defendant for the sum of ten thousand dollars, and for costs.”</p> <p>On the 31st day of May following, the defendant filed its-answer to the petition, which was in words and figures following:</p> <p>“And now comes the said Missouri, Kansas & Texas railway company, defendant, by W. A. Johnson, its attorney, and for its answer to the petition of said Marianna Long, plaintiff, and says that the said plaintiff ought not to have or maintain her said action herein against this defendant, because it denies each and every allegation therein set forth.</p> <p>“And for a further and second answer to the petition of the said plaintiff, the defendant says she ought not to have or maintain her said action therein, because the place where the alleged injuries are said to have occurred is not a public crossing of said railway; that no public highway crosses said railway at the place "where plaintiff alleges that her wagon was upset; that it was at a point on said railway that was never laid out as a public highway, and at a point where said railway company was not required to put in a safe and convenient crossing, nor any crossing whatever; that said railway has been built for more than twelve years, and has never been required to put in any crossing whatever at said place, where the pretended injuries are said to have been inflicted.</p> <p>“And for a third and further answer to the petition of the said plaintiff, the defendant says, she ought not to have nor maintain her said action herein, because the said Marianna Long, plaintiff, was herself guilty of carelessness and negligence directly contributing to her own injuries. And having fully answered, the defendant asks to be hence discharged with its costs.”</p> <p>Afterward, on the 4th day of June following, the plaintiff’ filed her reply as follows:</p> <p>“Comes now the above-named plaintiff by her attorneys, Álmerin Gillett and Peyton' & Peyton, and for a reply to the second and third defenses in defendant’s answer, denies each and every allegation therein contained.”</p> <p>The case was tried at the July Term, 1881, of the district court, by the court with a jury. . The jury returned a verdict for the plaintiff, and assessed her damages at the sum of $3,000. Defendant filed a motion for a new triál, which upon hearing was overruled, and judgment was entered upon the verdict for plaintiff. The defendant brings the case here.</p> <p>Sec. 2, ch. 81, Laws of 1869, is invalid, being in violation of §16, art. 2 of the constitution. (17 Kas. 625; 13 id. 600.)</p> <p>The defendant’s demurrer should have been sustained: First, because the evidence on behalf of the plaintiff failed to prove that the place where she received her injuries was a public highway, such as the railway company was required, under the law, to put in and maintain a road-crossing thereat; and second, the evidence proves clearly that the plaintiff was guilty of carelessness and negligence, contributing directly to the injuries of which she complains.</p> <p>The evidence fails to prove any of the necessary facts to create a highway. (48 111. 388; 80 id. 127; 41 Iowa, 693; 30 id. 258; 40 id. 372; 24 id. 25; 61N.Y.448; 16 id. 203; 1 Bond, 81; 6 Daly, 356;-51 Ind. 309; 49 Ala. 353; 6 ■Coldw. 532; 24 Conn. 236.)</p> <p>A dedication of land to the public use, for a,high way, cannot be established by mere occupancy alone. It must be ■shown that the occupancy or use was with the knowledge and acquiescence of the land-owner, for the full period fixed by the statute of limitation of real actions. (22 Iowa, 457; 29 id. 73; 35 id. 129; 10 Neb. 520.)</p> <p>To establish a highway by dedication, the general rule is, that there must have been a general, uninterrupted use of the same as such by the public, under a claim of right, for a period equal to that for the limitation of real actions. (Washburn on Easements, 2d ed., 177, and cases cited; 36 Iowa, 483; 41 id. 693.)</p> <p>The idea of a dedication to the public use of land for a public road must rest oh the clear assent of the owner, in some way, to the dedication. (9 How. [U. S.] 10.)</p> <p>User alone of uninclosed and wild prairie land will not support a prescription for a highway. (45 Iowa, 143, and ■cases cited.)</p> <p>The plaintiff was guilty of carelessness and negligence, contributing directly to the injuries of which she complains, and cannot recover. (22^.213; 22 Kas. 296.) The plaintiff must not only show negligence on the part of the defendant, but she must show that she was in the exercise of due care, in respect to the accident from which the injury arose. (24 Iowa, 25; 38 id. 539, 564; 45 id. 66; 50 Me. 222.)</p> <p>Both ■ the city and the railroad company recognized this road as a public highway, and have knowingly permitted the public to use it as such for a period sufficient to constitute a highway by dedication. The company placed its road-crossing upon a thoroughly traveled road which had been accustomed for a period of fully thirteen years prior to the building of this, railroad to be used and traveled by the public as a highway, and thereby in effect said to the public: “Come and cross our railroad track here. This is the public highway.” It failed to put any crossing in on the regularly laid •out Neosho street, and there was no other crossing put in near this one for more than ten years. Under such circumstances it does not make any difference whether the crossing was either, first, a regularly laid out highway; second, a highway by dedication and user; third, or whether it was anything more than a traveled way. (Bigelow on Torts, pp. 292 to 294; 2 Hill on Toris, ch. 37, § 19.)</p> <p>Sec. 47, subdiv. 4, ch. 23, Gen. Stat. 1868, devolves upon railroad companies the duty, whenever they cross a highway, “ to restore it to its former state, or to such a state- as to have not necessarily impaired its usefulness.” ' The statute of 1876 •does not attempt to impose any new or additional duties upon railroad companies, but requires certain of these duties devolved upon them by the laws of 1868 to be performed within .a very short time, under a penalty in case of a failure. If the railroad company is liable for injuries occurring by reason of the defective road-crossings over public highways in general, it remains to inquire whether a railroad company escapes this liability by reason of the fact that the injury occurs in passing over a crossing placed by the company at the intersection of a generally traveled and well-worn wagon-road, though it be not a legal highway, by reason of a defect in such crossing. If the company, whose duty it is to place ■crossings at the intersection of all legal highways, escape liability on the ground claimed, then we have this anomaly: If it performed the duty enjoined by the statute and placed its road-crossings upon the legal highways, it would be liable to parties injured by these defective crossings; but by violating its duty under the statute and placing these crossings, not on the legal highways, but off from them, it escapes such liability, it is receiving a very high premium for wrong. It ■does wrong and avoids liability, when to do right would in•cur one. Complying with the statute imposes upon it a liability; violating the statute releases it from the liability. A correct interpretation of the law will hardly hold out such inducements for its violation.</p> <p>As to the rule regarding contributory negligence, we adopt the argument of the supreme court of Minnesota in Kelly v. Southern Minnesota Railroad Company, filed July 22d, 1881, and published in The Northwestern Reporter of July 23d,. 1881, p. 588. We adopt that opinion as to points also. That company repaired the crossing after the accident, and it is-liable if it puts its crossing there and continues it there, although the road was not a legally laid out highway.</p> <p>The defense that plaintiff was guilty of negligence directly contributing to the injury was a question of fact for the jury. It was fully submitted to them upon voluminous testimony, and they found against the railroad company on that question;. the trial court having refused a new trial, that’question is not open in this court.</p>

Error from Elk District Court. At the October Term, 1880, of the district court, plaintiff Burchfield had judgment against defendants Kelly, Willis & Co., who bring the case here. The opinion states the facts.

Error from Johnson Eisiriet Court. The plaintiff in error brought an action in the nature of trover, in the court below, against the defendants in error, and declared for conversion of one-half of eight acres of wheat in the stack, of the value of $80; one-third of twenty-two acres of corn in the field, of the value of $50; and one-third of twenty-eight acres of flax in the stack, of the value-of $100, to which the defendants pleaded a general denial;, and also that on the…

Error from Sedgwich District Court. Before the 18th day of September, 1876, one J. C. Fraker was tfye owner of the undivided one-third of the south half of the northwest quarter of section twenty-two, township twenty-seven, south, of range one, east, in Sedgwick county, together with the flouring mill, machinery and fixtures thereon, and the water-rights and easements thereunto belonging.

Error from Atchison District Court. On February 1, 1881, Hurd commenced this action, to obtain an injunction restraining the defendants from selling the-following-described premises in Atchison county, to wit: The east twenty acres of the north seventy-two acres of the northwest quarter of section twenty-one, township six, range twenty.

Error from Johnson District Court. Action by Atchison against Cochran, to recover $151.30 paid to a false and spurious payee of a draft. The essential facts are: On the 17th day of November, 1880, the assistant cashier of the First National bank of Pueblo, Colorado, mailed a draft, of which the following is a copy: “ Colorado —No. 49,009 —Duplipate —Unpaid.

Error from, Saline District Court. Action brought by the Pleasant Hill Cemetery Association against Hunt, to recover $18. Trial at the May Term, 1881, of the district court, and judgment for plaintiff. Hunt brings the case here. The opinion states the facts.

Error from Clay District Court. May 12, 1878, a judgment was rendered in the district court in favor of Silver, and against the Railway Company, which brings the case here. The facts are stated in the opinion.

Error from, Douglas District Court. Action brought by Persing against Tarpy, to recover rent for certain farming land. Trial by the court, at the October Term, 1880, and judgment for plaintiff. The defendant, brings the case here. The opinion states the facts.

Error from Leavemoorth District Court. Action brought by the Railroad Company against Lowe, as sheriff of Leavenworth county, to recover certain taxes, amounting to $420.80, paid under protest August 24, 1881. At the December Term, 1881, the court sustained a general demurrer to plaintiff’s petition, and gave defendant judgment for costs. The plaintiff brings the case here. ' The facts appear in the opinion.

Error from Smith District Court. At the October Term, 1881, of the district court, defendant Oatis had judgment against plaintiff Dodge, who brings the case here. The facts, appear in thejopinion.

September 29, 1881, Newland was found guilty of an assault and battery, and sentenced to pay a fine of $100 and costs. From this sentence he • appeals. The facts appear in the opinion. • • ■

Error from Montgomery District Court. Action brought by John Jasper & Co. against Cottleib Brothers, to recover the sum of $2,881.59. Trial at the December Term, 1879, of the district court, and verdict for the defendants for $3,500, with interest at seven per cent, from the beginning of the action. New trial denied, and judgment accordingly for the defendants. March 18, 1880, the plaintiffs filed a petition for a new trial of the action.

Error from, Ellsworth Distriot Court. At the September Term, 1881, of the district court, Hann, as plaintiff,'had judgment againt defendant Theilen, who brings the cáse here. The opinion states the,facts.

Action brought in the district court of Smith county, by Macfarland against Buck and two others, to recover $1,500, with interest at ten per cent, from November 4, 1880, and $1,750, with interest at eight per cent, from the date aforesaid. January 7, 1882, the district judge, Hon. Joel Holt, upon a hearing at chambers, made an order discharging the attachment therein, at the cost of the plaintiff, who brings this case here for review.

At the September Term, 1881, of the district court of Ellsworth county, Duncan, plaintiff, recovered a judgment for $291 and costs against defendant Freeman, who brings the case here.