Volume 3 — Kansas Reports

Error from Leavenworth County. This case arose in Leavenworth county.

Error from Leavenworth County. This action was commenced on the 81st day of July, A. D. 1863, by Bonifant, plaintiff in error, to recover $1,819.65, the amount of a promissory note executed at Weston in the state of Missouri, on the 30th day of May, 1860, by James E. Walker and John Doniphan, payable to plaintiff one year after thatgdate.

Error from Leavenworth County. Tbe facts of the case appear in the opinion of the court. 1. The new trial was erroneously granted. If this be true, it settles the controversy here. This court ought to order the first verdict to stand and judgment to be entered upon it. 1 Gr. & Wat. New Tr., 2.

Error from Jefferson County. This action was commenced in April 1862, by defendant in error, against the plaintiffs in error, to recover section or reserve No. 9 of Kansas half-breed Indian lands in Jefferson county, containing six hundred and forty acres. The cause was tried Oct. 27, 1863, by the court, (parties waiving a jury,) and judgment given for defendants. A new trial was granted under section 574 of the Civil Code.

<p>Polilion in error from a final order of Probate Court. The Supreme Court declined to entertain jurisdiction whereupon it was held,</p> <p>Section 525 Civil Code, under article 3 section 10 Constitution, gives the jurisdiction of hearing appeals from final orders of Probate Courts to the District Court of the county.</p> <p>“ Appeal” as used in article'3 section 10 of the Constitution, is a general term denoting any proceeding by which a cause is sought to be removed from probate and justices courts to superior tribunals for the purpose of ro-examination, and thereby precludes jurisdiction by Supremo Court in this case.</p>

Error from Shawnee County.. The petition in this case set forth; The Topeka Bridge Company, a corporation duly incorporated under an act passed by the Governor and Legislative Assembly of the territory of Kansas, entitled “An act to incorporate the Topeka Bridge Company,” approved Eeb. 14th, 1857, plaintiff, says that the defendant J. F. Cummings, on the 21st Nov. 1857, made his subscription of that date to the capital stock of The Topeka Bridge Company, a corporation…

<p>On an appeal from an order of the Probate Court for the sale of lands inventoried as the property of decedent to pay debts, the. District Court rendered judgment that the judgment of the Probate Court “ be reversed.”</p> <p>Semite, on an appeal, the case is to be tried de novo ; Held that the District Court should have tried the case and rendered its own judgment on the merits, and the record should show what its conclusion was.</p> <p>The District Court could try nothing but what the Probate Court could. It could not try title to land. All it could do, was to see if the personal assets were insufficient to pay the debts, and if so, order the real estate inventoried to be sold.</p> <p>District Court ordered to try the case de novo.</p>

Error from, Leavenworth County. The facts of the case sufficient to present the points decided, appear in the opinion of the court. 1. After a term of court has expired during which a judgment was rendered, the court has no discretion or authority at a subsequent term to set aside said judgment.

Error from Shawnee County. The affidavit on -which the proceeding in the justice court was founded, showed “ that the said Mary A. Clinton on the 8th day of May A. D. 1863, was in the lawful and rightful possession of, as her own property, the following described premises, to-wit: her hotel commonly called the Clinton House in Indianola, Shawnee county, together with all the rooms, houses, garden, lots, &c., used in connection with the same, and afterwards to-wit: on the…

The facts of the case, sufficient for the presentation of the points decided, appear in the subjoined opinion of the court.

The following, taken from the opinion of the court, is a full statement of the facts of the case: On the 9th day of January, A. D. 1865, this court granted an alternative writ of mandamus against the respondent herein, upon the application of the relator, Nathaniel Price.

Criminal Appeal from Atchison County. The record shows that on the trial the State offered in evidence “ a certain judgment of record of (that court) to which evidence the defendant by counsel objected, and objection sustained by the court, to which ruling of the court the district attorney excepted.” Other facts of the case appear in the opinion of the court,

Error from Atchison County. Tlie subjoined opinion of tlie court contains tlie substance of tlie agreed statement of facts, and also of tlie ordinances of tlie city bearing upon the questions decided. Held: new city authorities elected, and yet four months intervened and no action to prevent the issuing of the bonds, and the new dynasty go to work and issue them. City Charter, sec. 32. It is too late now to say that the ordinance did not give time enough.

Error from Leavenworth County. The facts of the case appear in the opinion of the court. The debt was contracted prior to the admission of Kansas, and judgment in justice court against plaintiff in error was recovered by defendant in error, Douglas, prior to said admission, but the transcript of the judgment was filed in the District Court after the admission of the state.

Error from Franklin County. This action was brought September 11th, 1863, in Franklin County District Court, on a note, as follows: “$237.37. Ottawa Creek, April 20th, 1860. For value received (in cutting stone) by Gouliep Anders, I promise to pay when I receive it from government for losses sustained in August 1856, or as soon as otherwise convenient, the sum of two hundred and thirty-seven dollars and thirty-seven cents.

Criminal Appeal from, Leavenworth County. The facts of the case sufficient to present the points decided, appear in the opinion of the court. 1. Thg plea to the jurisdiction of the court should have been sustained. The Criminal Court of Leavenworth county has no jurisdiction of offenses arising within the corporate limits of Leavenworth city. The recorder is vested with the exclusive original jurisdiction of the same.

Error from Leavenworth County. The facts of the case sufficiently appear in the opinion of the court. I. After the absolute conveyance of the lots by Brown to Mundee, Brown retained no lien. The court below failed to see the distinction between a vendor’s lien after an absolute conveyance, and a lien where the contract of sale is unexecuted.

Error from Leavenworth County. Tbe facts of the case are as follows: The plaintiffs in error (plaintiffs below,) were the owners of a number of lots situated on Shawnee and Main Streets, Leavenworth. June 24-th, 1863, an ordinance* was passed providing regulations for improving streets and the levying and collection of special taxes for the same.

Error from Leavenworth County. This action arose in Leavenworth county District Court, was brought by the plaintiffs in error against the defendants in error, to recover the value ($592.53) of certain goods purchased by plaintiffs in error in Detroit, Mich., and shipped thence to Leavenworth with defendants in error.

Error from Bourbon County. The case fully appears in the opinion of the court. 1st. As to want of precipe, Civil Code, secs. 64 and 595. 2d. As to want of seal, Constitution, sec. 1, article 3 ; Civil Code, sec. 68; Comp. L., p. 454, sec. 4; 6 Ohio Rep., 11. 3d. As to the rendition of judgment by the court without the intervention of a jury, Constitution, “ Bill of Eights,” sec. 5; Civil Code, sec. 290. 4th. That the errors complained of were available, Civil Code, sec. 526.

Error from Wyandotte County. The execution under which the sheriff levied upon, appraised and advertised the lands for sale, showed upon its face that the return day thereof was the 19th day of June, and the sale was advertised for the 20th of June, and the execution was on the 19th of June returned, endorsed that the lands were not sold for want, of time, and an alias issued upon the 20th, and on that day the land sold.

Error from Atchison County. This action arose in Atchison county — was brought by the defendants in error against the plaintiffs in error, November 14th, 1860, claiming a copartnership with them in the business of contractors in building of railroads, alleging the existence of long copartnership accounts, a want of assets on the closing up of the affairs of the copartnership in March, A. D. 1856, that the plaintiffs below had drawn from the proceeds of the firm $2,378.69,…

Error from Atchison County. This case arose in Atchison county and was submitted to the court on the agreed statement that the plaintiff below leased the premises, a lot in Atchison, to Charlotte A. Crowell, by a written lease dated April 1st, 1862, in consideration of $180 per year for the term of four years, on conditions of payment of certain taxes and assessments, special and general, said lessee agreeing to refund any portion of the aforesaid taxes, that tbe lessors may…

Error from Brown County. The facts sufficiently appear in the opinion of the court. 1st. Attachment is a provisional remedy merely. Wright could not come in to defend in the case stated in the petition. Note 3, Seney's Code, p. 66, 2d. The answer of Wright below, is no answer in the cause. The proceeding was not the legal mode of dissolving the attachment. 3d. There was no foundation for the verdict; the motion for a new trial should have been therefore granted.

Error from Leavenworth County. The facts in the case fully appear in the subjoined opinion. 1st. Jurisdiction depends upon value proved on the trial, not on the appraisement. Clark v, Whiibeck, 14 III., 393; Bullen' v. Ives, 30 Mo., 478. 2d. The record shows that the amount in controversy was more than $100, for which judgment was rendered. This is error. Justioes Act, sec. 131; Oomp.

Error from Leavenworth County. Bauer sued McCarty in District Court for damages alleged to have been caused in wrongly locating the lines of lot 29, block é9 Leavenworth. The work was alleged to have been done in a careless and unskillful manner. McCarty was a practical surveyor, and made the survey at the request of Bauer, in April 1862, and received $2.50 therefor.

Error from Miami County. Sears sued Shaw before a justice of the peace on an account amounting in all to $45.45, giving credit for cash $25.00, and claiming a balance due of $20.45. On the trial before the justice, Shaw demanded a jury, who returned a verdict that the plaintiff had no cause of action, whereupon the. plaintiff appealed to the District Court, when the case was again submitted to a jury, who returned a verdict for ten dollars balance in favor of the plaintiff.

Error from Wyandotte County. The facts in the case, sufficient to present the points decided, appear in the subjoined opinion of the court. 1st. The words per se-are not actionable; they import no crime known to the law of Kansas. 2d. The act of February 1859, adopting the common law of England, (Comp. L., 678,) require that special damages in such case be alleged and proved, Swift’s Dig., 182; Corslake v. Mapledoran, 2 T. R., 173, reported, 5 English Com.

<p>Article 5 of the amendments to the constitution of the United States held not to be applicable to any other than the proceedings in the United States courts, [1 Pet. R., 2<L3,] and that there is no repugnancy between it and the act of the legislature of 1864, providing for the trial, of offenses upon information filed.</p> <p>A. defendant not coming within the exeexrtions named in that act is entitled under it to a preliminary examination, and may plead its omission, but held that it is not necessary that the information should allege such examination or a waiver of it, that being a matter which goes, not to the merits of the trial, but to the regularity of the previous proceedings. 10 Michigan B., 383.</p> <p>The sufficiency of an information must be determined by the rules governing indictments, and neither can be quashed for such an omission. Criminal Code, sec. 96.</p> <p>It is not requisite that the precise time of the commission of an offense should be pleaded if it is shown to have been within the limitation prescribed by statute.</p> <p>Under sec. 94 Grim. Code, other words conveying the same moaning as those used in the statute are sufficient in defining a public offense.</p> <p>A charge in an information, that defendant, the property of another, naming ' him, from the person, in the presence of and against his will, feloniously did take with intent in so doing to rob, &c., held to bo substantially the offense defined in section 61 of the act concerning crimes and punishments, and, under the liberal rule of construction laid down in the Criminal Code, held to bo sufficient. Motion to quash ordered to be overruled.</p>

Error from Douglas County. 'Tlie following statement of tlio facts of the caso aro taken from the opinion of tlie court. This action was brought in the court below by Reynolds against Johnson, to recover the sum of $338, being the amount of a package of gold coin left in charge of defeudant by plaintiff, and subsequently stolen.

Criminal Appeal from Douglas County. The record of tlie court below shows the following orders (referred to in the opinion,) relative to the organization of the grand jury: “The panel of the grand jurors being called the following named persons answered to their names, to-wit: William Draper, R. F. Barber, John E. Campbell, John Morehead, Ira Jennings, Levi Woodward, R. S. Johnson. “ Tho panel of the grand jury being incomplete, it is ordered by'the court that the following…

Error from Wyandotte County. The body of the bill of exceptions appears in full in the opinion of the court. The court has no power to set aside a sale, especially on a motion to confirm, and in absence of a motion to set the sale aside, the record showing that the proceedings of' the officer were regular. Comp. L., p. 198, sec. 449, Code; Challis v. Wise db Cróoleham, 2 Kans. R., 193 ; Koehler v. Ball, Id., 160; Livingston v. Lamb, 1 Id., 221.

<p>Where on March 19th, 1851, C. &F., the owners,, conveyed respectively, parts of the land in question to Clarkson, as trustee for Mrs. Tabitha C. Hughes, she being at the time a married woman, the wife of Thomas C. Hughes, held that under the law of 1855, then in force, it was not necessary that the deed should contain the words “trustee for the use and benefit of' ’ her, in order that her husband might be excluded from any interest in the property. Whatever, would evidence the intent of the grantor to have been that the conveyance should be for her sole use and benefit, would be sufficient.</p> <p>The deed, designating Clarkson as the trustee of Mrs. H., and the covenants being with him in that capacity, as to the trustee, the title vests in Mi's. H.</p> <p>Where the evidence in such case does not show the source of the consideration, nor that tho husband of the beneficiary was ever in possession of the consideration, and where the recitals in the deed show that the consideration was paid by the trustee, it cannot he presumed that there was sueh possession of the consideration on the part of the husband, as would by the common law, make the conveyance inure to his benefit, and held that the deed to Clarkson as trustee in this case, vested the title solely and absolutely in Mrs. Hughes.</p> <p>Semble, had it been shown that the consideration was money or other personal property, and in the wife’s possession, her possession might have been regarded as his; or had it been shown to be a chose m action and he shown to have exercised acts of ownership over them, such a reducing to possession as the law makes necessary to vest the title in him, might have been inferred, and thus operated to vest the ownership in him.</p> <p>In such case, the record showing that the trustee Clarkson, conveyed to Todd, the body of the deed purporting to be by him, as trustee for Mrs. Hughes, but it being signed by him individually, held that whatever title, interest or claim, legal or equitable, Clarkson (the trustee) had, passed to his grantee, Todd.</p> <p>In such ease, the record showing that Hughes, as agent of his wife, by verbal appointment, sold the property in question to Clarkson, who paid the purchase money, which inured to the benefit of Mrs. Hughes, and was put in and took possession, and while so in possession made valuable improvements thereon, in all of which Mrs. H. acquiesced, held that Clark-son having thus acquired the equitable title, was entitled to the legal title, so far as he and Mrs. Hughes are concerned, and this, notwithstanding the statute of 1851, [Laws ’51, p. 1.]</p> <p>Semble, although this court might have come to a different conclusion on the evidence as to the facts, yet tho finding for that reason alone ought not to be disturbed, there having been evidence tending to show the state of facts necessary to support the deeision.</p> <p>Where the record in such case shows that Mrs. Hughes conveyed to plaintiff in error, June 2d, 1863, by quitclaim deed, 1 ‘ remising, releasing and quit-claiming” the property without other covenants, held that she thereby conveyed the title she held, viz: the legal title, subject to the equitable title which had passed to Todd and mortgaged by Mm to defendant in error; Held that the court below was warranted, under the evidence, in finding that plaintiff in error, took with notice of the equitable claims of defendant in error, and did so find, in finding that the lien of the defendant in error under his mortgage, was prior to all other claims; the service of summons by publication having been completed April 6th, 1863, no person, under section 81 of the Civil Code, could acquire an interest in the real estate against defendant in error, after that.</p>

Error from Leavenworth County. This was an action, tried before a jury, brought on a promissory note alleged to have been transferred to plaintiff as security for a debt, with power to sue in his own name, alleging that the plaintiff was at tbe time of tbe suit tbe legal owner and holder thereof.

Error from Johnson County. The suit in the court below was instituted for the purpose of obtaining an order restraining the defendants from selling certain lands of the plaintiff’s for taxes, and to… Held: p. 436, that while the operation of the United States Rank could not be interfered with by taxation yet that its real estate was liable to taxation.

Error from Miami County. The facts in this case were similar to the facts in the preceding case of Blue jacket v. The Com’rs of Johnson County, the only difference in the two cases being the different wording of the treaties in the respect indicated in the subjoined opinion of the court. The two cases wore submitted at the same time and considered together. The briefs and arguments in the preceding case were used in this with some additions indicated below.

<p> Error from Leavenworth County. </p> <p>The pleading of the counter claim was as follows:</p> <p>“ Third. And for a further and third defense, the said ■defendant alleges that at the time of the commencement of this action the said plaintiff was indebted to this defendant in (a certain sum named) for the work and services of defendant before then done, and performed for said plaintiff at his request; also for the further sum of (giving it,) paid, laid out and expended by defendant for said plaintiff at his request; also in the further sum of (giving •it) for so much money before that time had and received ■by said, plaintiff to and for his use; and the defendant ■alleges that the said plaintiff although often requested has not paid the said several sums of money or either of them or any part thereof, but the same is and now remains wholly unpaid. ’Wherefore,” &c.</p> <p>To maintain this defense the defendant was sworn and asked “to state to the jury what he knew about the indebtedness of the plaintiff to the defendant at the time of the commencement of the suit for any work or labor,” &c. The plaintiff objected to the question, which objection was sustained, and the ruling excepted to. The defendant then offered to prove that at the time of the commencement of the action the plaintiff was indebted to defendant therefor in the sum of, &c. Same objection, ruling and exceptions; verdict for the plaintiff below and motion for new trial overruled. Other facts appear in the opinion of the court.</p> <p>The counter claim set up in the answer of which evidence was attempted to be given, was cm account, no copy of which had been set forth in the pleading as required by the Code, (section 132, Comp. L., 100.) The answer on its face does not contain a statement of facts constituting a defense (as required by section 91, Civil Code,) but is a succession of allegations of conclusions of law.</p>

Error from Wyandotte County. This was a petition to the District Court of Wyandotte county, for a partition of real estate situate in the “ Shawnee Reservation55 by treaties of 1851, in that county. The record shows that it was agreed that the lands described in the petition, of which partition was asked, “ were duly patented to Capt. Joseph Parks, who was a Shawnee Indian, and that the parties to the action claiming through Parks, are all Shawnees.

<p>The word “costs” includes those charges fixed bylaw or rule of court which the record shows have been necessarily incurred in the prosecution of an action or proceeding.</p> <p>The word 1 ‘ expenses ’ ’ used in section 16 of the act of Feb. 3, .1860, ‘1 to provide for the partition of real estate,” (Comp. L., WO,) includes those charges incurred in the proceeding to obtain partition, which are not included in the word “costs,” (also therein used,) and includes charges of officers and persons, whose services are required, but whose fees therefor are not fixed by law — as in this state, of the sheriff — the “freeholders ” appointed to aid in making the partition, and the surveyor, for whose respective services therein no fees have been by law specifically established. Semble, it is not in the spirit of our laws in taxing costs to include attorneys’ fees, and held that they are not included in the term ‘1 costs and expenses,” used in said section.</p> <p>Judgment below, including attorneys’ fees in taxation of costs, reversed.</p>

Criminal Appeal from Riley County. Tbe facts sufficiently appear in tbe opinion of the court. The court sustained the first and third grounds of the motion to quash; the latter ground for. the somewhat novel reason that the indictment did not aver that there was but the one Riley county in Kansas, and that the court could not take judicial notice of that fact.

<p>The decision in The State of Kansas, Appellant v. Adelbert Muntz, Appellee, |jante p. 383,] confirmed.</p>

Error from Leavenworth County. The facts in this case were substantially similar to those in Meagher v. Morgan, but the decision was the reverse on the motion for a new trial.

Error from Leavenworth County. The facts of the case sufficiently appear in the opinion of the court. Among other points counsel for plaintiff submitted: I. The invalidity of the sheriff’s sale maybe established by evidence in the trial of a real action under the Code, where plaintiff in such action relies upon a sheriff’s deed, notwithstanding confirmation, the deed being only prima facie evidence of the legality of sale. Cvoil Code, sec. 450. (a) .

Error from Douglas County. Erom the record it appears that the Hartford Eire Insurance Company on the 12th of March 1861, commenced an action against the defendant in error as administrator of Norman Allen, deceased, on a note and to foreclose a mortgage, both dated September 12th, 1860, payable six months from date, and tor the sale of the mortgaged property, viz : the undivided half of lot No. 20, Massachusetts street, Lawrence, and the plaintiff in error was made a party…

Error from Douglas County. The facts of the case are substantially as follows: The defendant in error, Jesse C. Connor, commenced an action April 10th, A. I). 1860, in the District Court of Douglas county against the plaintiffs in error and the defendant in error, Nathan Starks, to obtain judgment on a note made by said plaintiffs in error and one Frederick Kimball, now deceased, to said Connor for four hundred dollars, dated October 5th, 1859, payable six months after date…

Error from, Atchison County. Brily sued Tarleston before a justice and recovered. Tarleston filed a bond for appeal and filed a transcript for that purpose in tbe District Court. Tbe transcript contained the “ bills of particulars ” of both plaintiff and defendant filed before the justice, but no further petition was filed by the plaintiff in tbe Appellate Court.

Error from Leavenworth, County. This action was brought by the defendants in error against the plaintiff in error to recover a balance of, and the attachment was issued for $6,889.28, alleged in the affidavit to be “ a balance found due and owing from said defendant to said plaintiffs on a settlement and statement of the accounts between said plaintiffs and said defendant on the 29th day of December 1865, and that said balance is due from said defendant to said plaintiffs…

Criminal Appeal from Shawnee County. The indictment in this case, found by the grand jury of Shawnee county, May 24th, 1865, charged that the defendants, in said county on May 1st, 1865, in a tippling house, alias dram shop, called “ Young’s Saloon,” in the City of Topeka in said county, sold and retailed a gill of whisky to one Theodore Mills, without license as a grocer, dram shop keeper, beer house keeper or tavern keeper.

Criminal Appeal from Leavenworth County. This case arose on an indictment found December 5th, 1865, against this appellant, Craft, and'one Henry H. Campbell, jointly, for murder in the first degree, committed in Leavenworth County, Sept. 29th, 1865, in killing Dennis Gallagher. The indictment was signed H. W. Ide, District Attorney, 1st Judicial District. The defendants in the action below on motion obtained an order for separate trials.

Error from Leavenworth County. The record in this case involved the same questions involved in the next preceding case of Craft v. The State, and in addition, other questions arising from the charge of the court to the jury.

Error from Shawnee County. TMs was an action brought by Kullok against R. A. Ermul and W. G. Ermul, to recover tbe value of materials furnished by Mm, and labor performed in the erection of a bouse for these defendants on lots 1Y0, 1¶2 and 17é, on Quincy street in Topeka, and to enforce a méchanic’s lien upon these lots for the payment of tMs debt.

Error from. Leavenworth County. The plaintiff in error filed her petition in the Probate Oourt of Leavenworth county on Dec. 2d, 1865, asking a revocation of letters testamentary issued under her deceased husband’s will to defendant in error, which petition was by the Probate Oourt found true, and on the 9th day of Dec. 1865, the prayer granted. The defendant in error appealed from that decision to the District Oourt of that county, following therein sections 232 to 235 Comp.

<p>The limitation prescribed in the Code of 1858 in actions for trespass to person was one year.</p> <p>The decision in Elliott v, hoohnane, [1 Kans. R., 126,] that the limitation of that Code applied’to causes of action which had accrued prior to April 1st, the time the act went into operation, where no suit thereon had previously been commenced, — confirmed.</p> <p>JSeld that such a cause of aotion accruing March 29th, 1851, was barred before Eeb. 8th, 1859.</p>

Error from, Leavenworth County. The questions in tbis case arose in an action brought in - 1865, the petition in which, alleged that the defendant in the state of Ohio, executed his promise in writing to pay money on the 1st day of October 1851, and before the maturity of his paper the said defendant absconded from the state of Ohio leaving the d'ebt unpaid.

Error from Douglas County. The record shows that the defendant in error commenced an action March 23d, 1861, in the District Court of Douglas county against the plaintiffs in error, on a promissory note dated April 5th, 1858, payable “ on or before ninety days from the date, with interest from date at the rate of five per cent per month.” Service of summons was had on all the makers of said note except Searle, who was not served, and the suit continued, pending until Aug.…

Error from Nemaha County. The return of the officer endorsed on the process was in substance as follows: “Served this writ on the within named defendant by leaving a copy thereof, together with the endorsements thereon, at his usual place of residence in said county.” On motion to set aside the service, affidavits made after the return of the officer, were read.

<p>If action is brought by an assignee of a demand, tbe defendant under section 108 of the Civil Code, is not deprived of his right to offset or counterclaim against the assignor though he may not. be entitled to judgment against the assignee for any balance, but that section does not apply after judgment.</p> <p>An attorney has a lien on a judgment in favor of his client for compensation, from the time of giving notice thereof.</p>