Volume 30 — Kansas Reports

Error from Montgomery District Court. Action brought by Turner and wife against Otis, to. set aside a certain settlement and dissolution of the copartnership between the parties. The opinion contains a sufficient statement of the facts. The plaintiffs allege that the court, at the March Term, 1881, erred in not opening up the whole settlement and ordering a general accounting, and bring the case to this court.

Error from Cloud District Court. Action brought by Reid against Carney and wife, upon a certain note and a mortgage executed by the defendants. .Jackson was made a party defendant in the action. Trial at the August Term, 1882, of the district court, and judgment for plaintiff. Jackson brings the case here.

Error from Johnson District Court. The opinion herein sufficiently states the nature of the action, and the facts. At the November Term, 1882, of the district court, defendant Ewing recovered a judgment against plaintiff Fullenwider, who brings it to this court for review. <?

Plaintiffs in error filed a motion for a rehearing of the above case, which motion the court heard at its session in March, 1883, and at its session in May, 1883, filed the opinion, infra.

Error from Diehinson District Court. The .nature of the action, and the facts, appear in the opinion. At the October Term, 1882, of the district court, plaintiffs Rice & Floyd had judgment against defendant Simpson for $310 and costs; but judgment for costs was entered for defendants Finley, Otley, and Henry, and against plaintiffs, who bring the case here.

Error from Greenwood District Court. Action by A. J. Ritz and M. C. Putnam, partners as Ritz & Putnam, against the Railway Company, to recover for goods and supplies furnished. The opinion states the character of the action, and the facts. At the May Term, 1881, of the district court, plaintiffs had judgment against the defendant company, which brings the case to this court.

Error from Anderson District Court. Action brought by Cornell against The Missouri Pacific Railway Company, to recover damages by reason of fire alleged to have been communicated by the engine of the defendant to the property of the plaintiff.

Error from Miami District Court. At the February Term, 1883, of the district court, plaintiff Abney recovered a judgment against the Railway Company, which brings the case to this court. The opinion states the facts.

Error from Reno District Court. At the March Term, 1882, of the district court, defendants J. 8. George & Company recovered a certain judgment against plaintiff Carter, who brings the case here. The opinion states the nature of the action, and the facts.

Error from Shawnee District Court. The facts fully appear in the opinion. July 20, 1882, defendants Lantry & Burr had judgment' in the district court against plaintiffs Muzzy & Tuttle, who bring the case here.

<p>Habeas Corpus — Nature of Proceeding. A proceeding in habeas corpus, brought by one who upon an examination before a magistrate on a criminal charge has been committed for trial, is in effect an appeal from such examination, and like it is to be considered a criminal case, within the scope of $ 1, ch. 108, Laws 1881.</p>

Error from Butler District Court. At the February Term, 1882, of the district court, defendants William H. Baxter and wife recovered a judgment against plaintiff Overstreet, who brings the case here. The opinion states the facts.

Error from. Wyandotte District Court. Action by Margaret Hachett against Louis Hammerslough, begun on the 13th day of February, 1882.

Error from Chase District Court. The nature of the action, and the facts, appear in the opinion. At the May Term, 1882, of the district court, defendant Pracht recovered a judgment against the plaintiff Railroad Company, which brings it to this court for review.

Error from, Crawford District Court. Action brought by B. W. Woodward, F. A. Faxon and J. C. Horton, partners as Woodward, Faxon & Company, against George W. Ciarlo and another, alleged to be partners under the firm-name of C. B. Hoover, to recover $231.83 for goods sold and delivered to the defendants. Trial at the September Term, 1882, of the'district court, H. G. W., judge pro tern., presiding, and judgment for defendant Clark. The plaintiffs bring the case here.

At the July Term, 1882, of the district court, Cook was sentenced to pay a fine of $100 and costs, for violating chapter 128, Laws of 1881. From this judgment he appeals. The opinion contains a sufficient statement of the facts.

Error from Greenwood District Court. Action brought by The State against Jackson as surety on a recognizance for $300, given iu a bastardy case. Trial at the August Terra, 1882, of the district court, and judgment for the plaintiff. The defendant brings the case here. The facts appear in the opinion.

Error from Wilson District Court. The nature of this action, and the facts, fully appear in the opinion. At the February Term, 1883, of the district court, plaintiff, Mary A. Reynolds, a minor, by her guardian, Elias McCowen, recovered a judgment against defendants, Mary A. Reynolds and another, who bring the case to this court.

Plaintiee in error filed a motion for a rehearing of the foregoing case, which motion the court heard at its session in May, 1883, and at its session in June following filed the opinion, infra.

Action brought in the district court of Barton county, by B. D. Buford & Go., a corporation organized under the laws of Illinois, against Moses Baum and another, partners as Baum & Baum, to recover the possession of a certain stock of hardware and agricultural implements, or in default of such recovery, to obtain a judgment against defendants for $1,913.20, with interest and costs.

Error from Jachson District Court. On the 20th day of September, 1880, W. J. Fleming commenced an action against W. M. C. Reynolds and Robert M. Reynolds, upon two promissory notes, one dated July 1,1879, executed by ~W. M. C. Reynolds for $86.20, due three months after date, for work done on a dwelling house situated upon certain real estate in Jackson county, belonging to Robert M. Reynolds; the other dated July 9, 1879, executed by W. M. C. Reynolds for $359.80, due six…

Error from Smith District Court. The nature of the action, and the facts, appear in the opinion. At the May Term, 1882, of the district court, defendant Williams recovered a judgment against plaintiff Thompson, who brings the case here.

jError from Shawnee District Court. At the April Term, 1882, of the district court, plaintiff Jennie M. Swayze, as administratrix of the estate of J. Clarke Swayze, deceased, had judgment against the defendant ¿Etna Life Insurance Company, which brings the case here. The opinion states the nature of the action, and the facts.

Error from McPherson District Court. Four actions, severally, by Tootle, Hosea & Co., Phillips, Grant & Co., Reed & Closson, and The Geisecke Boot and Shoe Manufacturing Company, against Coldwell. January 27, 1883, the district court, in each ease, dissolved the attachment which had been issued therein, which rulings the plaintiffs have brought here.

Error from Wyandotte District Court. Action brought March 3, 1882, by B. Gray against Elizabeth 1. Crockett, H. C. Long and Martha M. Long, to compel them to convey certain real estate. The terms of the alleged contract set forth in the petition are as follows: “April 22, 1881.

Original Proceedings in Mandamus. Action brought in this court, November 10,1882, by William H. Duffitt and Peter B. Ramsey, partners as Duffitt & Ramsey, against Robert Crozier, as judge of the district court of Leavenworth county, to require the defendant to obey the mandate of this court in the case of Duffitt v. Tuhan, 28 Kas. 292, or to show cause, etc. An alternative writ was accordingly issued, and made returnable on the 29th of November, 1882.

Error from Riley District Court. Action begun February 17, 1882, by Matthias Peale against Joseph T. Ellicott, as assignee of the Riley County Bank of Manhattan.

Error from Riley District Court. Action brought by the Armour Brothers Banking Company against the Riley County Bank of Manhattan, and S. A. Sawyer and W. A. Scott, partners as Sawyer & Scott, on a certain draft.

Error from Lyon District Court. Action brought by Gillett and others against the treasurer and the sheriff of Lyon county, to perpetually enjoin the collection of a tax on certain cattle. At the March Term,* 1883, the district court overruled plaintiffs’ demurrer to defendants’' answer, which ruling plaintiffs bring here. The opinion contains a sufficient statement of the facts.

Error from Clay District Court. Action by R. L. McDonald & Co. against C. M. Kellogg, as trustee, &c., and numerous other defendants, to foreclose a deed of trust. January 12,1883, the district court sustained Kellogg’s demurrer to the petition, and gave him judgment for costs against plaintiffs. They bring the case here.

Error from Doniphan District Court. April 7, 1882, defendant Dieter had judgment in the district court against Babcoch, who brings it here for review.The opinion states the facts.

Error from Lincoln District Court. Action by Campbell & Gilbert against Ball, to recover $225.17, with interest. Trial at the April Term of the court for 1882. A jury was waived, and the cause was submitted to the court with a request to find the facts specifically and state its conclusions of law thereon. This was done. The facts found are as follows: “1.

Error from McPherson District Court. Action brought by Aultman, Miller & Co. against Frey, -upon a promissory note. January 11, 1883, the plaintiffs had judgment for $160.25 and costs, against defendant, who ■brings the case to this court. The facts appear in the opinion.

Error from, Leavenworth District Court. Action by Matthew Ryan against The Board of Commissioners of Leavenworth County, and the sheriff of that county, to enjoin the collection of a tax of 1881, on his stock in the Leavenworth coal company. Trial at the April Term, 1882, of the court, before the court, a jury being waived. The court found the facts specifically, and stated its conclusion of law thereon. The facts found are these: “1.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in this court, March 22, 1883, by Neil Donnelly and Morris Cotter.

Error from Shawnee District Court. Action in the nature of ejectment, brought by Jesse C Chesney against Joab Mulvane and the City Railway Company, to recover the possession of lots 82, 84 and 86, on Tenth avenue east, in the city of Topeka. Afterward, the ■death of the plaintiff was suggested, and the action was revived in the names of Mary E. Chesney, widow, and of the children of the deceased.

Error from, Montgomery District Court. September 27,1882, in the district court, L.U.H., jiidge pro tern., presiding, the defendant Cox was adjudged to be the father of the child of the unmarried relatrix, one Maria Wyatt, and ordered to pay her within ten days the sum of $150, and $100 annually thereafter until the child in question should reach the age of seven years, and also all the costs of the prosecution.

Error from Riley District Court. Action by H. A. Young & Co. against Lynch, to recover upon an account. December 20, 1882, the district court made an order discharging an attachment obtained by the plaintiffs in the foregoing action, which order they bring here to be reviewed. The opinion states the facts.

<p> Appeal from Cloud District Court. </p> <p>At the October Term, 1881, of the district court, Teissedre was found guilty of maintaining a common nuisance, in violation of eh. 128, Laws of 1881. His motion for a new trial was overruled, and also his motion in arrest of judgment. Thereupon the court adjudged that—</p> <p>“The place known and described as the west room of Bartlett & Crump’s brick block, situate on lot one of block five, in the city of Clyde, in said Cloud county, is a common nuisance, and that an order issue out of the court, directed to the sheriff of Cloud county, commanding the said sheriff to shut up and abate such place. And it is further considered and adjudged, that the defendant Camille Teissedre,' the keeper thereof, pay a fine of one hundred and fifty dollars and the costs of prosecution herein, taxed at - dollars; and that he be committed to the jail of Cloud county until the same are paid.”</p> <p>From the foregoing judgment defendant appeals.</p> <p>The judgment in this case should be reversed, for the following reasons:</p> <p>1. The offense with which the defendant was charged and prosecuted is not embraced within the title of the act under which the prosecution was brought.</p> <p>2. The information is fatally defective in this, that it does not set forth facts constituting a public offense, because it does not charge that the defendant had no permit or license to sell. (24 Kas. 724.)</p> <p>3. The court permitted, over the objection of defendant, the probate judge to testify that the defendant had no druggists’ permit or license — there being no allegation in the information justifying the admission of such testimony.</p> <p>4. Witnesses whose names were not indorsed on the information were allowed to testify over the objection of defendant, to wit, George Bartlett, among others.</p> <p>5. When the argument for the defense was about concluded, the court, over the objection of the defendant, allowed the state to call the witness MeFarlan to prove in what county and state the alleged offense had been committed, which had not before been proven.</p> <p>6. The jury were misinstructed in the five instructions given at the request of the state, and especially in the first instruction, where they are instructed that beer is presumed to be intoxicating until the contrary is proven. This instruction is too broad. If it had been limited to the kind of beer that is intoxicating, as for instance, lager beer, then under the former decision of this court, (The State v. Volmer, 6 Kas. 371,) the instruction might not be bad; but as it is, it is. When there are several, or rather many kinds of beer, some of which are intoxicating and some are not, an instruction that beer, without any modification or limit, is presumed to be intoxicating, is certainly too broad, and therefore erroneous.</p> <p>7. The court refused to give instructions Nos. 1, 2, 3 and 4, asked by defendant.</p> <p>8. The court refused to sustain the motions of defendant for a new trial, and in arrest of judgment. There was no evidence to justify the verdict. If the testimony of the pro- • bate judge had been competent, this was the only evidence offered which tended to show that the defendant had no permit or license; but it did not show that he had no license-or permit, only that he had no druggists’ permit. In the prohibition act two permits are provided for — one for druggists, in §2, and the other for manufacturers, in §5. Before the state can convict, it is necessary for it to show that the defendant had neither. Showing that he did not have one, does not show that he did not have the other. The question, if competent under the information, should have been as to whether defendant had any permit or license; then if the answer had been no, this would be sufficient; but the question was as to whether he had any druggists’ permit. This should have been followed by the question as to whether he had any manufacturers’ or other permit. As it was not, and there was no evidence only that he had no druggists’ permit, there was no evidence to justify the verdict or judgment. (The State v. Pittman, 10 Kas. 593.) The general instructions given by the court were erroneous, and excepted to by the defendant. When, however, the case came to be made and the record certified to the supreme court, the instructions of the court could not then (and though diligent search was then and ever since has been made, they cannot yet) be found; and so the record was sent up without them. The defendant suggests a diminution of the record, and that this court direct the court below to certify up said instructions, or if they cannot be found, to substitute new ones.</p> <p>This court has held that the service of the notices of appeal on the clerk and the prosecuting attorney constitute the appeal, and that upon such service its jurisdiction, to review the judgments and decisions of the court below, rests. (Carr v. The State, 1 Kas. 334; The Slate v. King, 1 id. 466.) This jurisdiction resting upon the appeal and the filing of the transcript here within thirty days after such appeal is taken, this court has held that the notices of appeal and proof of services thereof are important parts of the record, and that they should appear in the transcript filed, that it may see and the record show that it has jurisdiction of the cause. (Cases cited, supra.) The record in this case clearly shows, both in the bill of exceptions and in the copies of the papers filed in the case certified as such by the clerk, that a perfect appeal was taken in this case on October 26, 1881 — over nine months prior to the filing of the transcript in this court. The transcript is certified to contain full, true and complete copies of all papers filed in the cause below, and to be a full, true and complete copy of the record in the cause. The date of the certificate of the clerk attached to the transcript is July 26, 1882, five days before the transcript was filed in this court. The record shows that at that time the only appeal taken in the cause was the appeal taken October 26, 1881. This court tries cases brought before it on the record and transcript from the court below, and cannot assume the existence of a portion of the record not before it, nor render a judgment which, upon the face of such record, would appear to be without jurisdiction. The record before this court showing, therefore, that the appeal taken from the judgment of the district court was perfected October 26,1881, and that the transcript of the record of the proceedings of the court below was not filed in the supreme court until July 31,1882, the appeal must be dismissed for want of jurisdiction. (The State v. McEwen, 12 Kas. 38.) No authority is given to file the transcript after thirty days from the time of taking the appeal have elapsed. No notice of the filing of the transcript is ever given after it is filed. The defendant is bound,. after an appeal is taken, to watch the files of this court for thirty days, to see for himself whether a transcript is filed or not. If the transcript is filed within the thirty days, he must take notice of it; but if it is not filed within that time, he may then rest easy.</p> <p>Two years is the extreme limit for taking the appeal, and thirty days thereafter is the extreme limit for filing the transcript in the supreme court. The thirty days cannot be extended a day, because if they may, then they may be extended indefinitely. If the appellee is bound to watch the files of the supreme court for thirty-one days after an appeal is taken, to see whether a transcript is filed or not, he would be bound to watch its files for that purpose forever. And further, the taking of the appeal stays the judgment when for a fine and costs, as in this case, (The State v. Volmer, 6 Kas. 384,) and it was evidently not intended that the taking of an appeal should stay the judgment indefinitely. The failure to file the transcript within thirty days after the appeal terminates the stay, and thereafter the judgment of the court can be enforced. The decisions of this court have been consistent with this argument.</p> <p>In The Stale v. Boyle, 10 Kas. 115, the record did not show that any attempt had been made to take an appeal under the criminal code, as it did not show that any notice of the appeal was served or attempted to be served on either the clerk of the district court or the county attorney. But after the case was brought to this court, both the district clerk and. the county attorney expressly waived the notice of appeal; and the court, notwithstanding this waiver, says “with some hesitancy we have concluded to consider the case as now in this court substantially on appeal.”</p> <p>In The State v. McEwen, 12 Kas. 37, the record showed an appeal taken by the service of notices on December 11, 1872. The transcript of the record of the proceedings of the court below was not filed until January 22, 1873, and the court held that a motion for dismissal for want of jurisdiction must be sustained, and the appeal dismissed.</p> <p>In The State v. Ashmore, 19 Kas. 545, the court again squarely met these questions and disposed of them in an unequivocal manner, in harmony with its previous policy.</p> <p>In McLean v. The State, 28 Kas. 372, the court quoted approvingly and followed the earlier decisions, and dismissed the case because the record did not show a perfect appeal taken within thirty days next preceding the filing of the transcript.</p> <p>The question arises, can a defendant who has taken an appeal in such a case, and who has failed to file the transcript as prescribed by law, and the appeal has thereby become a nullity, serve new notices and take a second appeal in the same case? The statute says “an appeal may be taken by the defendant,” and “the appeal must be taken within two years after the judgment is rendered,” and “the transcript must be filed within thirty days after the appeal is taken.” The language of the statute is singular, not plural, and it is asserted that only one appeal is authorized to be taken. If a second appeal may be taken after a failure to file the transcript within thirty days after the first appeal was taken, then a third, a fourth and a fifth appeal may be taken, and this novel method of operations continued monthly for two years, each appeal staying the execution of the judgment thirty days. A defendant may thereby have taken twenty-three perfect appeals, each of which becomes a nullity by reason of his failure to file a transcript within thirty days. On the last appeal he takes his transcript to the supreme court within the time, and the stay which he has successively renewed twenty-four times is continued until the determination of the last and only bona fide appeal to this court. Is it a'reasonable construction, which will lead to results so manifestly absurd? We think not. There was only one appeal authorized, and that appeal was taken October 26, 1881. The transcript was not filed in this court within thirty days thereafter, and therefore the present proceeding is without jurisdiction, and should be dismissed.</p> <p>But should the court hold otherwise, (as it has intimated it would in other cases decided by it,) has there been any second appeal taken in the case? The transcript fails to show it, although certified to contain all the record and copies of all papers filed in the case up to July 26, 1882 — five days before the transcript was filed in this court. In the foregoing eases cited, this court has said that the appeal must appear from the record, unless there is an express waiver thereof by the district clerk and the county attorney.</p> <p>On the 2d day of September, 1882, the defendant filed with the clerk of this court two papers, not entitled in this case in the supreme court, but entitled in the case in the district court of Cloud county. They were never filed in the district court, and have not been certified by the clerk of that court to be a part of the record of that court relating to this case. They purport to be papers intended to be filed in the district court of Cloud county. They do not purport to be intended to be filed originally in this court. The action is instituted in the district court, judgment is rendered there, and there the case remains until the appeal is taken to this court. The appeal is taken in. the court where the case is. It operates as a stay of execution of that court until that appeal is determined or abandoned. When an appeal is properly taken, this court has jurisdiction to review the judgment and decisions of the lower court.. What that judgment is, and whether the appeal is properly taken, can only be known by an examination of the record of the lower court. The only way the supreme court can examine the record of a lower court is by the production before it of the record itself, or a duly certified copy or transcript of that record. The statute has provided, in cases of appeal, that it shall be by a duly certified transcript of the' record and proceedings in the lower court. This court cannot assume any paper to be a part of the record of the case below, unless it is duly and properly certified to be such by the custodian of the record, the clerk of the district court. These notices, filed September 2,1882, cannot be assumed, therefore, to be any part of the record from the district court of Cloud county. What then is the effect of these notices? Can a transcript be filed in the supreme court, and the case on appeal commenced, before the appeal is taken? What jurisdiction had this court on July 31, 1882? And if it had no jurisdiction of the cause when it was instituted, what act has conferred a jurisdiction it never had? The notices purport to have been served on the clerk and county attorney, but they do not waive notice of appeal. This court may say that the appeal may be taken at any time —any moment prior to the submission of the proceedings; at any moment prior to the rendition of the judgment in this court; but we do not believe it will say any such thing. We believe it will sustain its prior rulings. It will say we must have had jurisdiction when the cause was instituted before us. It will say that an appeal must be taken before we can have jurisdiction; and that that jurisdiction, and therefore the appeal, must appear in the transcript of the record filed at the commencement of the case in this court. This argument is not made in a technical spirit, but because we believe that a contrary ruling will lead this court to absurd results. A construction of the statute which will enable a convicted criminal to nullify the judgment of the court by which .he was tried, for two years, without an appeal to this court in good faith, or which will create and confer on this court, retroactively, a jurisdiction that it did not possess at the time the transcript was filed here and the suit'eommenced, is not a reasonable construction, and will lead to absurd results when tried by the tests of logical reasoning.</p> <p>This is not a case that comes within § 294 of the criminal code, which provides for the correction of defective appeals. In this case a perfect appeal was taken in the first instance, which afterward became a nullity by the failure to file the transcript in this court within the succeeding thirty days.</p> <p>To summarize our argument on this branch of the case, we contend that a perfect appeal was taken on October 26, 1881, and on the failure of the defendant to file the transcript in the supreme court within thirty days thereafter, it became a nullity; that no second appeal is authorized by the statute, and no attempted second appeal is shown by the record upon which this proceeding is based; that if a second appeal may be taken, it must be taken in the lower court before the ease is brought to the supreme court, and appear in the transcript; and that an appeal, first or second, can no be taken subsequently to the institution of the suit on appeal in this court.</p>

Information for murder, charging John Yordi with the felonious killing of John Byland, in the county of Brown, April 5, 1882. Trial at the January Term, 1883, of the district court. The jury returned a verdict of guilty of murder in the first degrée. Judgment accordingly, from which Yordi appeals.

Error from, Riley District Court. Action brought by Stewart against the Railway Company, to recover the value of a mare alleged to have been killed by the defendant. This case has been here before. ( 27 Kas. 631.) After it was remanded for a new trial, another trial was had, at the December Term for 1882, of the district court. The court charged the jury as follows: “ 1.

Error from Greenwood District Court. April 7, 1882, Sullivan obtained from the judge of the district court, at chambers, a temporary injunction restraining Mitchell from proceeding further with the construction of a certain school house in District No. 85, in Greenwood county. On the 4th of May following, Sullivan, at his costs and before answer, dismissed the action in which the foregoing injunction was granted, and without prejudice to a future action.

Error from, Wilson District Court. Action brought by the Board of Commissioners of Wilson County against Thomas McIntosh, as sheriff of said county, and three others, as sureties on his bond as such officer, to recover $2,000, with interest thereon at seven per cent, per annum from January 1, 1878. At the February Term, 1882, judgment was given for defendants and against the plaintiff Board, which brings the case here. The facts appear in the opinion.

Error front Jachson District Court. Action in the nature of ejectment, brought December 2, 1881, in the district court of Jackson county, by /3. Held: in the tenth conclusion of law, that the alleged sale of the land in controversy by the sheriff of Brown county could not be considered in the case. The judgment in that case was obtained on service made by publication only, the defendant not appearing.

Error from, Bourbon District Court. Action brought by McCoy against School District No. 83, in Bourbon county, to recover for wages claimed by him as a teacher in said district. Trial at the December Term, 1881, of the district court, before W. C. W., judge pro tem. presiding, and a jury. Judgment for plaintiff against the defendant School District, which brings the case to this court. The opinion states the facts.

Error from Miami District Court. Action begun March 25,1881, by Jones against the Board of Commissioners of Miami County, to recover the sum of $391 paid on an alleged tax sale of lot 8, block 31, in Paola. Trial by the court at the May Term, 1882. The court was requested to find the facts specifically, and state its conclusions of law thereon. This was done. The findings are as follows: “ 1.

Prosecution under §15 of the act regulating crimes and punishments. Upon the verdict against the defendant Watson, the court, December 22, 1882, sentenced him to pay a fine of $50 and the costs of the prosecution, and to stand committed to the county jail until the same were paid. From this judgment he appeals. The opinion states the case.

Error from Johnson District Court. At the November Term, 1882, of the district court, plaintiff Hicks recovered a judgment against the Railroad Com-pany, which brings the case here. The opinion states the nature of the action, and the facts.

jError from Shawnee District Court. Action brought by Dunn against Carter to recover $674.93, for goods sold and delivered. Trial at the January Term, 1881, ■of the district court, before N.C.McE., judge pro tern, presiding, and a jury. Verdict and judgment for defendant. Dimn brings the case here.

Error from Miami District Court. Action brought by Beeson against the Missouri Pacific Railway Company, to recover from the defendant the value of two sacks of wool.

<p>1. Lost Deed; Secondary Evidence of Contents. Where an instrument,, shown to have been deposited in a public office, is claimed to have been lost or destroyed, the testimony of the custodian of such office, or some person who has himself searched in such office, must be produced, showing that after search he was unable to find the instrument, before secondary evidence of its contents is admissible.</p> <p>2. Title, Protected Against Unrecorded Deeds. One who, being no party to the judgment, purchases at sheriff’s sale real estate, which by the record apparently belongs to the defendant, is protected against unrecorded deeds and mortgages and outstanding equities as fully as one who takes a voluntary conveyance from such defendant.</p> <p>3. Deed, Filed, but not Recorded. A purchaser of real estate who takes his-deed to the office of the register of deeds and deposits it with him for record, discharges thereby his duty of notice to the public; and if' through the fault alone of the register the deed is lost and not entered of record, such failure will not work to the prejudice of the title of such purchaser, even in favor of a subsequent purchaser without notice, unless the first purchaser, after knowledge of the defect in the record, is guilty of laches in failing to give notice of his title, either by occupation of the premises, record of a new deed, or proceedings in court.</p>

Error from, Leavenworth, District Court. The opinion states the nature of this action, and the facts. Trial by the court and a jury at the September Term, 1882, when the court decided in favor of the plaintiff Whitaker and against the defendants Hawley and others with reference to the first cause of action stated in the plaintiff’s petition, and against the plaintiff and in favor of the defendants as to' the second and third causes of action set forth in the petition.

<p> Error from Wyandotte District Court. </p> <p>The nature of this action, and the facts, sufficiently appear in the opinion.</p>

The facts of this case appear in 26 Kas. 299, et seq.; 29 id., 75, et seq.; and in the opinion, infra. February 12,1883, in the district court of Shawnee county, it was ordered and adjudged that the Western News Co. and James Douglas have the sum of $160, then in the hands of the clerk of said court, which judgment the plaintiff company and Reynolds & Reynolds have brought here for review.

<p>Herd Law; Names on Petition; Presumption. Where a party on a trial attempts to prove that the county herd law (ch. 128, Laws of 1874) is in force in the county, and shows by the records and files of the board of county commissioners, and also .by evidence aliunde, that the board of county commissioners made an order putting or attempting to put such herd law in force — the order reciting among other things that “a petition, signed by more than two-thirds of the legal voters” of the county, was presented to the board, asking for such order, and the petition was in fact presented to the board, with a number of names upon it equal to more than two-thirds of the legal voters of the county, and sufficient notice that such petition would be presented had previously been given, and the order of the board was duly and properly published, but no evidence was introduced on the trial, except the recital in such order, showing that the names on said petition were in fact the names and the genuine signatures of legal voters of the county, held, that in the absence of anything showing the contrary, it will be presumed that the names on said petition were in fact the names and the genuine signatures of legal voters of the county.</p>

Error from Shawnee District Court. Action brought by Frazier and another against Case, to recover the possession of the southwest quarter of section 18, township 10, range 16, east, situate in Shawnee county. Trial by the court at the adjourned September Term, 1882, and judgment for plaintiffs. Defendant brings the case here. The opinion contains a sufficient statement of the facts.

Error from, Barton District Court. At the July Term, 1882, of the district court, Kincaid and another, partners as Kincaid Brothers, as plaintiffs, recovered a judgment against defendant Dodge, who brings the case here. The opinion states the facts.

Error from, Johnson District Court. The opinion states the case. At the November Term, 1882, of the district court, the defendant City of Olathe recovered a judgment for costs against plaintiff Hedrick, who brings the case to this court.

<p>1. Declaration or Vendor,, in Derogation of Title. A declaration of one from whom a party obtains title to property, made after the transfer of title and in derogation of that title, is inadmissible in evidence against the latter.</p> <p>2. Purchase or Personal Property; Intent of Vendor and Vendee. A bona fide purchaser of personal property obtains a good title to it, although his vendor may have held it under only a voluntary transfer from a former owner, and in fraud of the latter’s creditors.</p> <p>3. Title — Partly Absolute, Partly in Trust. Where a bill of sale conveys two distinct pieces' of property, and it appears by parol testimony that one piece was conveyed absolutely and the other only upon trust, the stipulations respecting the latter do not by reason of there being but one bill of sale affect the title conveyed of the former.</p> <p>4. Practice in Supreme Court. After a case has been submitted to this court upon its merits, a defendant in error has no legal right to interpose a motion to dismiss on the ground of defects therein, and it is discretionary with the court to entertain and examine such a motion.</p>

Error from Sumner District Court. Action by the Baker Manufacturing Co. against Knotts and another, partners as Knotts & Wallace, to recover $2,009.60, for goods sold and delivered to defendants. At the beginning of the action, the plaintiff company filed an affidavit and bond for a civil order of arrest against both Knotts and Wallace, which was duly issued and served upon the defendant Q. W. Knotts. Thereupon Knotts gave bail, and was released from custody.

Error from Greenwood District Court. At the December Term, 1882, of the district court, the defendant Railway Company had judgment against plaintiff Shoemaker, who brings the case to this court. The opinion states the facts.

Error from Atchison District Court. Action by Dobson and another, partners as John and James ' Dobson, against Noyes and another, late partners, upon an account for goods sold and delivered. Judgment for plaintiffs at the February Term, 1883, of the district court, for $2,708.05 and costs, against defendant Noyes. This judgment he brings here for review. The opinion states the facts.

At the April Term, 1883, of the court, Foster was found guilty of violating § 134 of the crimes act, and sentenced to the penitentiary for the term of four years. He appeals. The opinion states the facts.

Error from Rice District Court. At the January Term, 1882, of the district court, plaintiff English had judgment against defendant McVay, who brings it here for review. The opinion states the case.

Error from Clay District Court. Action by Lockwood, Englehart & Co. against Adams and another, to recover on three notes.' At the January Term, 1883, of the district court, plaintiffs had judgment for $258.65 and costs against defendants. They bring this judgment, and also the overruling of their motion to discharge the attachment in the action, to this court for review. The opinion states the facts.

Error from Decatur District Court. Action by Wilkes against Wolback and another, on a promissory note for $100, with interest. Judgment for the defendants at the September Term, 1882, of the district court. The plaintiff brings the case here. The opinion states the facts.

Error from Osage District Court. Action by Hemme against School District No. Osage county, on an order of that district for $55.62. Trial at the April Term, 1881, of the district court, and judgment for defendant. Plaintiff brings the case here. The facts appear in the opinion.

Error from Saline District Court. Action by Allen against Mellison and two others, to compel the specific performance of a contract to convey an undivided one-half interest in the northeast quarter of section 8, township 11, range 17, west of the sixth principal meridian. At the November Term, 1882, of the district court, the defendants’ demurrer to plaintiff’s petition was overruled, and judgment was rendered for plaintiff.

Error from Neosho District Court. Action brought by the Semple & Birge Manufacturing Company against Detwiler, on three promissory notes by him executed to the plaintiff. At the July Term, 1882, the company recovered against defendant a judgment, which it avers to be erroneous, and brings here for review. The defendant also files a cross-petition herein. All necessary facts, pleadings and proceedings are stated in the opinion.

Error from, Chase District Court. Ejectment, brought by Farlin against Sook. Verdict and judgment for the defendant, at the November Term, 1882. Plaintiff alleges error, and brings the case here. The facts are stated in the opinion.

<p> Error from Doniphan District Court. </p> <p>Action by the Second National Bank of Springfield, Ohio, against Mann and another, on a negotiable promissory note. Trial at the September Term, 1882, of the district court, and verdict for plaintiff for $153. New trial denied, and judgment accordingly. The defendants, alleging error, have brought this judgment here. The opinion states the ease.</p> <p>The payee of the note was president of the machine company, a director in the bank, and a member of its “discounting committee.” As such payee he was bound to know that the consideration had failed. It was for the jury to say what effect should be given to the evidence. (19 Kas. 60.) As a general rule, what the directors of a corporation know regarding matters affecting its interests, the corporation will be held to know, and knowledge on the part of directors may be inferred from circumstances, and it is not always necessary to show it by direct evidence. (30 Conn. 380.) As Whitely was a member of the “discounting committee,” this case comes within the opinion of the court in Farmers’ and Citizens’ Banh v. Payne, 45 Conn. 451. He was appointed to act especially in the capacity of discounting notes for the bank, and when he procured one to be discounted, the knowledge that he possessed in regard to it was the knowledge of the bank. If it be said that he did not act with the majority, and consequently without authority, we reply that the banls; has approved of his act, and is now availing itself of it. Besides, the cashier knew this note had not taken the usual course of other discounts; it had not passed the committee, but had taken an unusual course. The president had no authority to direct the cashier to discount a given note. ThereHvas a committee for that purpose. (3 Hill. 262; 1 id. 578; 1 Pars, on Contr. 66; 26 Conn. 382; 37 id. 257.)</p> <p>Although there has been a great conflict of opinion in the courts, as to whether a party who receives an indorsed negotiable note before maturity, in payment of an antecedent debt, or as security for an antecedent debt, is a bona fide holder, and takes it discharged of equities in favor of the maker, (29 Conn. 475, and cases cited,) yet we understand that the case of Draper v. Cowles, 27 Has. 484, has settled the law on that subject in this state.</p> <p>If the company has not yet received the money, it should not take it. To permit it to do so, after the consideration of the note has failed, would be the greatest injustice. (Dougherty Bros. & Co. v. Cent. National Bank, 93 Pa, St. 227, 233.)</p> <p>If it be said that the bank gave credit on its books, then we say the credit was given to the indorser by the indorsee. If the bank assumed responsibilities when it received the note, it assumed them to the transferer, and they are not negotiable. The new responsibility must be negotiable, or to some other person than the indorser of the note. The indorsement must be to pay a new debt, or to pay an old debt, or for a new purchase, or to secure a new purchase, or to secure an old debt. In this case it was to increase the indebtedness of the indorsee to the indorser.</p> <p>The conflict on the question as to whether or not a negotiable promissory note, indorsed before due, without notice, in payment of a preexisting debt, or as security for a preexisting debt, or as security for future advances, passes discharged of equities, has been long and severe. There are a great many cases on both sides of the question. The majority, however, are on the side of the affirmative. (40 Md. 540; Rid. Co. v. Bank, 102 U. S. 14; 55 N. Y. 236; 58 id. 77; 65 id. 438; 73 id. 269; 29 Wis. 209.)</p> <p>When this note was transferred, and also on the day this case was tried, the bank owed the company “ several thousand dollars.” We agree that if the machine company had owed the bank, and the bank had placed the amount of the note to its credit, or had applied it to the discharge pro tanto of such indebtedness, the consideration would be sufficient.</p> <p>also cited and commented upon the following eases: Omaha Nat. Bankv. Walker, 5 Fed. Rep. 399, and cases cited; 21 Kas. 545; First Nat. Bank of Nashville v. MeClurg, (7 Lea, 492,) 40 Am. Rep. 66; Corn-stock v. Filer, 73 N. Y. 269; Jordan v. Shoe and Leather Bank, 74 N. Y. 467; Dresser v. Mo. & Iowa Rid. Co., 93 U. S. 92; Maitland v. Citizens’ Bank of Baltimore, 40 Md. 571; Rid. Co. v. Nat. Bank, 102 U. S-14; Nat. Bank v. Bank of Albion, 52 Barb. 592; Platt v. Chapin, 49 How. Pr. 318; Fulton Bank v. Phoenix Bank, 1 Hall, 619; Bank v. Duneome, 48 Iowa, 488; Bank v. Hughes, 17 Wend. 100; JEtna Nat. Bank v. Fourth Nat. Bank, 46 N.Y. 82; Bank of Mobile v. Hall, 6 Ala. 639, (41 Am. Dec. 72.)</p> <p>There is no claim that Whitely had any notice, or that he ever knew anything of the notice to Quigley. The notice to Quigley, as general agent, was constructive notice to the Champion machine company, which would be charged with such notice; but it was not actual notice to Whitely, its president. To charge the bank with notice, would be to say, that the constructive notice to the company was notice to the bank of which Whitely was a director, although he had no actual notice, or any knowledge whatever of the matter. This would be carrying constructive notice very far indeed. This is mere suspicion of notice. While it is held that the fact of notice may be inferred from circumstances, as well as proved by direct evidence, the proof must be such as to affect the conscience of the purchaser, and must be so strong and clear as to fix upon him the'imputation of mala fides. “Notice is therefore never to be presumed, but must be proved, and proved clearly. A mere suspicion of notice, even though it be a strong suspicion of notice, will not suffice.” (Vest v. Miehie, 31 Gratt. 149, and cases cited.)</p> <p>But we contend that even if Whitely had actual notice of the failure of the warranty, while acting as president of the machine company, the bank would not be charged with such notice by reason of his being a director thereof. A notice to a bank director or trustee, or knowledge obtained by him while not engaged, either officially or as an agent or an attorney, in the business of the bank, is inoperative as a notice to the bank. If the notice was actual, the bank would not be charged with his knowledge, unless the fact was in his mind at the time, nor unless he was acting for the bank in that particular transaction. (Fairfield Savings Bank v. Chase, 72 Me. 226, and cases cited; Lake v. Reed, 29 Iowa, 258; Louisiana State Banh v. Seneeal, 13 La. 525 ; Story on Agency, p. 175, §140; Loomis, Campbell & Co. v. Eagle Banh of Rochester, 1 Disney, 285, and cases cited.)</p> <p>Was the credit of the proceeds of said note, $142.14, on the books of the bank in favor of the Champion machine company, such a payment as to pass the title of the note to the bank? We claim that the moment the credit was made, the amount so credited was subject to the check or order of the company, just as much as if it had been paid across the counter to Christee, the cashier of the company, and by him returned to the bank as a regular deposit, and credited. The purpose of a discount is, that the customer may draw out at his pleasure the avails of his discount. A bank is a debtor for the discount which is placed to its depositor’s credit. If it could retain the money against the note, the discount would be useless to the customer. The bank had no lien on the money on deposit for the payment of this note. There was no' contract for a lien in this case, nor did the law operate to give one. (Jordan v. National Shoe and Leather Banh, 74 N. Y. 472, 473.) The bank could not legally refuse to pay out the amount of the discount on the presentation of the check of the machine company. (Fourth Nat. Banh v. Oily Nat. Banh, 68 111. 400.)</p> <p>When the note was discounted, the machine company evidently directed the amount placed to its credit; and under such direction, the entry of the credit was as effectual as if the depositor had brought in on that day the check of another customer, and had it entered to its credit. It was a payment. (First National Banh of Nashville v. McClurg, 40 Am. Rep. 68.) In the case of the First National Banh of Parkersburg v. Crawford, 2 Cincinnati Superior Court' Reports, 125, the syllabus is as follows:</p> <p>“ When a draft is discounted by a bank, and passed to the credit of the drawer, and he is allowed to check against it, the bank is a holder for a valuable consideration'. In such case, though the drawer’s account is overdrawn at the time of the discount, and at the time of the maturity of the draft, the court will not inquire into the amount checked out, but the consideration once existing will be held good as to the whole note.”</p> <p>That the machine company, as a regular customer of the bank, carried an average balance of several thousand dollars on deposit at the commencement of this action, and had at no time since December 14, 1881, been below $143, cuts no figure. It is customary for every business house to each day deposit the cash receipts in some bank for safe-keeping and convenience, and to pay all or most bills by drawing cheeks on the banks where such deposits are made. In this way, the account of the depositor is constantly varying in amount: the money deposited one day may be cheeked out the same or the' next day, and the account again replenished by other deposits. It cannot be claimed that the money on credit of the Champion machine company December 14, 1881, when the discount was made, remained on hand for any length of time, as thousands of dollars are daily required to run its mammoth business. Yet it is said that the machine company did not need money at the time this discount was made, simply because it carried “an average balance of several thousand dollars.” But there is no evidence to sustain this view.</p>

The respondents filed a motion for a rehearing of the above case, which motion the court overruled at its session in September, 1883, and then filed the opinion, infra. The facts appear in In re Donnelly, ante, p. 191, et seq.

Error from Jefferson District Court. Action brought by Cassandra Whitehouse against Alexander McCoy, to set aside a certain deed executed by plaintiff to defendant. Afterward plaintiff died, and the action was revived in the names of her children and heirs, Nancy E. Whitehouse and three others.

Error from, Lyon District Court. Action brought by the Bank of Kansas City against Fox and the First National Bank of Emporia, upon a promissory note. Trial at the September Term, 1882, of the district court, and judgment for the plaintiff bank, against defendant Fox, who brings the case here. The opinion States the facts.

<p> Original Proceedings in Habeas Corpus. </p> <p>Petition for a writ of habeas corpus, filed in this court August 31, 1883, by Chambers against the sheriff of Reno' county. The application was heard by Valentine, J., and the writ issued and made returnable September 4, 1883, before the supreme court. The case was heard upon an agreed statement of facts, contained in the opinion herein, filed at the October Term following.</p>

Error from Nemaha District Court. Action upon a promissory note,'brought by George Herkel, as administrator of the estate of Catharine Herkel, deceased, against Robert E. Nelson, as administrator of the estate of Sarah J. Northrup, deceased. Trial by the court at the October Term, 1882, and judgment for plaintiff for $1,365.76, with 12 per cent, interest thereon from January 10, 1882. This judgment defendant brings here for review. The opinion states the facts.

Error from Butler District Court. At the May Term, 1883, of the district court, the defendant Board of Commissioners recovered a judgment against plaintiff Moon, who brings the case here. The facts appear in the opinion.

Kuhtjke, at the May Term, 1882, was convicted of an unlawful sale of intoxicating liquors, and fined $100 and costs. He appeals. The opinion states the case.

Error from Atchison District Court. Action by Holley against the Railway Company, to recover damages for bodily injuries. Trial at the November Term, 1882. The jury rendered a verdict for the plaintiff for $2,750. The jury also returned answers to particular questions of fact submitted by each party.

After thfe filing of the opinion herein, at the September, 1883, session of the court, counsel for plaintiff in error filed & motion for a rehearing, which motion the court decided at its session in January, 1884, and then filed the opinion, infra.

Pkosecution under §13 of eh. 128, Laws of 1881. October 25, 1881, the defendant Teissedre was found guilty and adjudged to pay a fine of $150 and costs, and ordered to be committed to the county jail until the fine arid costs were paid. It was further ordered that the sheriff of Cloud county be directed to shut up and abate the nuisance complained of. The defendant appeals.

Error from, Marion District Court. At the May Term, 1882, of the district court, defendant Boyd recovered a judgment against plaintiff Bahtbone, who brings it here for review. The opinion states the nature of the action, and the facts.

Error from McPherson District Court. Action by Gleason against The Board of Commissioners, to recover certain fees amounting to $87.80, in a bastardy case. Judgment for the defendant board, at the April Term, 1883, of the district court. Plaintiff complains of this judgment, and brings it here for review. The opinion states the case.

Error from Douglas District Court. Action by Miller against the City of Eudora, to recover damages for injuries to his team of mules, wagon, etc. Trial by the court at the April Term, 1882, and judgment for plaintiff for $160, and costs. The defendant brings the case here. Other facts appear in the opinion.

Information for murder in the first degree, charging Louis A. Rose with the felonious killing of Andrew. Ware, in Ellsworth county, on the 18th'day of September, 1881. Trial at the February Term, 1882, of the district court, when the defendant was found guilty as charged, and sentenced accordingly. He appeals. The opinion states the facts.

Error from Clay District Court. Action brought by Ellis against Weekly, to recover the sum of $800, with interest at seven per cent, per annum from March 26, 1883, and to establish a trust in the s.J of then.e.J of sec. 29, in township 9, south, of range 1, east, situate in Clay county. Trial at the May Term, 1883, and verdict for plaintiff for $345. New trial denied, and judgment accordingly for plaintiff. Defendant brings the case here. The opinion states the facts.

<p>1. Homestead Law ; Void Contract. S. being in possession of eighty acres of land under the provisions of the United States homestead law, and before he had perfected his title thereto, made a parol contract for its sale. Held, That such contract was in contravention of the homestead law, and void. (Mdlison v. Allen, ante, p. 382.)</p> <p>2. Deed, Presumed to be Based on New Contract. But where, after making such a contract, and after perfecting his title, he executed a deed to the purchaser without any further stipulation as to time and terms of payment, held, that such conveyance passed a good title, and would be presumed in law to be founded upon a new contract entered into at the time of the conveyance, and conditioned as to time and terms of payment in accordance with the provisions of the contract originally entered into between the parties.</p> <p>3. Parol Agreement, Not Adjudged Void. A parol agreement which fairly and reasonably interpreted admits of full performance within the year, although not likely to be so performed, will not be adjudged void by reason of the last prohibition in § 6 of the statute of frauds and perjuries.</p> <p>4. Agreement, Deemed Capable of Execution Within a Year. An agreement to pay $650 as soon as it can be earned off from a tract of eighty acres over and above the amount necessary to support the family of the promissor, cannot be pronounced as matter of law reasonably incapable of full performance within a year, when the number in the promissor’s family is not shown, nor the amount of improvements and conveniences for farming on the premises, nor the quality of the soil, nor the condition of the farm other than that at the time about forty acres were brokeD, nor the distance from market, nor any other fact from which the probable earnings from such a farm can be determined.</p>

Error from Harvey District Court. At the September Term, 1879, of the district court, plaintiff Lehman recovered a judgment against Muse, Spivey & Co., who bring it here for review. The facts appear in Muse v. Wafer, 29 Kas. 279, et seq., and in the opinion herein.

Error from, Neosho District Court. March 5, 1883, Barnhart & Brother brought an action-against Davis and another, alleging in their petition — “That they are now, and were at the times hereinafter stated, partners doing business under the firm-name and style of Barnhart & Brother; that they are now, and were at-all the times hereinafter stated, the owners of and in the actual and exclusive possession of a certain steam flouring mill situated in the city of Thayer, Neosho…

Error from, McPherson District Court. At the April Term, 1883, Forgler moved the court to strike from the files thereof the bill of exceptions and petition in error theretofore filed therein by Whitzell, for the reason that “ the so-called bill of ■ exceptions was not signed by C. F. Nichols, justice of the peace, nor was it done by his advice or consent.” The court heard the testimony of witnesses both for and against the foregoing motion, the arguments of counsel thereon,…

Error from, Shawnee District Court. Action brought by Blackman and another against Crawford and others, to recover for stone and sand used in the construction of Crawford’s opera house, and to foreclose a mechanics’ lien thereon. June 15, 1882, judgment for the plaintiffs for $290.25, and interest, and for the foreclosure of the lien. Defendants L. M. Crawford and Mary E. Crawford bring this judgment here for review. Other facts appear in the opinion.

Error from Kingman District Court. At the April Term, 1883, of the district court, defendants Stout & Wingert had judgment against plaintiffs Schuster, Tootle & Co., who bring the case here. The opinion states the facts.

Error from Cloud District Court. The nature of the action, and the facts, appear in the opinion. The plaintiff Harrison brings to this court certain rulings and orders made at the August Term, 1883, of the district court.

Et'ror from Marshall District Court. Action brought by Reed against Parli, to recover damages for malicious prosecution. Verdict and judgment for plaintiff for $475 damages, at the December Term, 1882, of the district court. The defendant brings the judgment here for review. The opinion states the facts.

Error from Jefferson District Court. Action by Critchfield against Kline, to recover a part of lot 10, in block 7, in Oskaloosa, Jefferson county. Trial by •the court at the February Term, 1883, when the court concluded and adjudged that a certain deed to defendant should be reformed, and that he have judgment for costs. Plaintiff brings the case here. The facts are sufficiently stated in the opinion.

Error from Pawnee District Court. Action brought by H. A. Pitts’ Sons Mfg. Go. against Perns and wife, upon two promissory notes, and to foreclose a real-estate mortgage given by the defendants to secure the payment thereof. Trial at the September Term, 1882, of the district court, before A. B. J., judge pro tem., and a jury. Verdict for defendants, and judgment for $103.66 costs against the plaintiff, and for the cancellation of the notes and mortgage.

At the May Term, 1883, Nickerson was convicted of a. violation of the prohibitory law, and adjudged to pay a fine of $125, together with the costs of the prosecution, taxed at $419.40, and to be committed to the jail of Dickinson county until the fine and costs were paid. He appeals. The opinion-states the case.

Error from Shawnee District Court. Action brought by B. D. Russam against the City of Topeka, for the recovery of certain real estate and for damages.. On the final trial, which was by the court without a jury, the court made the following findings and conclusions, to wit: “1.

Error from McPherson District Court. Action brought by Berg and another, as partners, against The Railroad Company, to recover $179.50, damages for alleged shortages and loss of wheat. At the April Term, 1883, the court overruled plaintiffs’ demurrer to defendant’s answer, which ruling they bring here. The opinion states the case.

Error from Shawnee District Court. June 1, 1883, the district court refused the application of Jane Davis for an injunction to prevent Stark from interfering with the removal of a certain dwelling house. This ruling she brings here for review. The facts appear in the opinion.

Error from Marion District Court. Action by Pracht against Pister, for the possession of certain wheat. Trial at the November Term, 1882, and verdict and judgment for defendant. Plaintiff brings the judgment here for review. The opinion states the case. It is apparent from an inspection of the paper claimed by plaintiff in error to be in substance and effect an execution, that it contains every element that is necessary or essential to that writ.

Error from DicMnson District Court. At the October Term, 1883, of the district court, plaintiff Cooper, as administrator of the estate of Enoch Vandenburg, deceased, recovered against defendant Reed a judgment for $54.75, which he brings here. The opinion states the case.

' JError from, Labette District Court. Action by Keirsey against The Board of Commissioners of Labette County, to recover certain fees. Trial by the court, at the February Term, 1883, when the court made findings of fact as follows, to wit: “1.

Error from Chase District Court. At the May Term, 1882, the district court vacated an order made by the Board of Commissioners, establishing a public road upon and across certain lands situate in Chase county, and owned by D. K. Cartter. This order the Board brings here. The facts appear in Commissioners of Chase Co. v. Cartter, 24 Kas. 511-515, and in the opinion, infra.

Original Proceeding in Quo Warranto. Action brought in this court, in the name of The State, charging that the defendants, J. A. Woody, with seven others, and The Vigilant Insurance Company, are unlawfully carrying on the business of insurance in this state. A sufficient statement of the facts appears in the opinion, filed at the October, 1883, session of the court.

Action brought in the district court of Ottawa county by Tucker against the Union Pacific Railway Company, to recover damages because of the failure of her title to certain land by the Kansas Pacific railway company conveyed to her late husband. Judgment for plaintiff, September 2, 1882, for $176.30. Defendant brings the case to this court.

At the October Term, 1882, of the district court of Sumner county, Collins had judgment against Hastie, who brings the case here. The opinion states the facts.

Error from, Atchison District Court. At the November Term, 1882, plaintiff Andrews recovered a judgment for $2,000 damages, and costs, against the defendant Railroad Company, which brings this judgment here for review. The opinion states the case.

Error from Mitchell District Court. Action brought by Jones against The Railroad Company, to recover damages for bodily injuries, alleged to have been received by plaintiff while in the employment of the defendant company. January 6, 1882, verdict and judgment for plaintiff for $4,250. The defendant brings this judgment here for review. The opinion states the facts.

From a conviction for an assault and battery, at the May Term, 1883, of the district court, defendant Beverlin appeals. The opinion sufficiently states the facts.

Error from Shawnee District Court. August 12,1882, House had judgment against Decker, who alleges error, and brings it here for review. The facts appear in the opinion.

Error from Harper District Court. At the March Term, 1883, defendant Royston had judgment against plaintiff Tull, who brings it here for review. The nature of the action, and the facts, appear in the opinion.

Error from, Wyandotte District Court. Action brought by the First Presbyterian Church of Wyandotte against the Board of Commissioners of Wyandotte County and others, to obtain the title to and the sole possession and control-of a certain lot situate in the northeast corner of Huron place, in the city of Wyandotte, and designated on the plat thereof as a “church lot.” The petition alleged among other averments, in substance, that the lot in controversy was by the Wyandotte…

Error from Atchison District Court. Action by Richard D. Simpson against The Kansas City, St. Joseph & Council Bluffs Railroad Company to recover $300 for damages alleged to have been sustained on account of injuries to a horse shipped from East Atchison to St. Joseph, Missouri.

Original Proceedings in Quo Warranto. The petition in this case, filed June 26, 1883, is as follows: “A. H. 'Vance, county attorney of the county of Shawnee, in the state of Kansas, who prosecutes for said state, comes now here unto the supreme court of the state of Kansas, and in behalf of said state gives the said court here to understand and be informed that: “ 1.

Original Proceedings in Quo Warranto. Action brought in this court, June 1, 1883, by The State of Kansas, on the relation of A. H. Vance, county attorney of the county of Shawnee, against Joseph O. Wilson, to oust the defendant from the office of mayor of the city of Topeka, a city of the first class. June 20, 1883, the defendant demurred to the petition and to every allegation and charge therein contained, and for causes of demurrer stated the following : “1.

Error from Kingman District Court. Action by Chamberlain against Roberts and others, to reform a sheriff’s deed. At the April Term, 1883, the court overruled the demurrer of the defendant Roberts to plaintiff’s petition. This ruling he brings here for review. The facts are stated in the opinion.

Error from Wyandotte District Court. The Kansas rolling mill company was incorporated under the laws of Kansas in 1875, and owned and operated a rolling mill at Rosedale, in Wyandotte county, in this state.

Error from, Atchison District Court. Action by McQueen against The Railroad Company, to re-cover damages for bodily injuries.' Trial at the June Term, 1881, and judgment for defendant. The plaintiff brings the ease here. The facts are stated in the opinion.

Error from Rawlins District Court. Action by Gaunt against certain officers to recover the possession of a certain stock of goods. Trial at the April Term, 1883, and judgment for the plaintiff. The defendants bring the case to this court. The opinion states the facts.

Error from Franhlin District Court. Action brought by Becker against Mason, to recover damages for the failure on the part of Mason to perform an alleged contract for the exchange of certain bank stock on the part of Mason for certain real estate and money on the part of Beeleer. The case was tried by the court without a jury, and the court made the following conclusions of fact and of law: “1.

Error from Johnson District Court. At the November Term, 1882, plaintiff Hines recovered a judgment for $250 against Ensey, as executor, etc., who brings it here for reversal. The facts appear in the opinion.

Error from Miami District Court. Action by Olivia A. Martin against Leroy W. and Rebecca A. Martin, to recover damages alleged to have been sustained by reason of being prevented from pasturing cattle upon the south half of the southeast quarter of section 18, township 16, range 25, in Miami county, in this state.

Error from Neosho District Court. Action by John C. Carpenter against Eliza D. Carpenter, for a divorce. The opinion states the facts. Judgment for plaintiff at the April Term, 1883. The defendant brings the case to this court.

Error from Shawnee District Court. Action for divorce, brought by Elijah Osterhout against Sarah Osterhout. June 2, 1883, the court overruled defendant’s demurrer to the petition. This ruling she brings to this court. The opinion states the facts.

Error from Miami District Court. Action by Reed and two others, partners as Reed, Staley & Co., against O’Leary, to recover on a promissory note. Trial at the October Term, 1882, and judgment for plaintiffs for $1,092.99. Defendant brings the case here. The facts are stated in the opinion.