Volume 36 — Kansas Reports

Prosecution for murder. Trial at the November Term, 1885. The jury found the defendant, William Baldwin, guilty of murder in the first degree as charged in the first count of the information. The court overruled the defendant’s motions for a new trial and in arrest of judgment, and on January 11, 1886, sentenced the defendant in accordance with the verdict. He appeals. The opinion contains a sufficient statement of the case.

On June 22, 1886, the following petition (omitting court, title, and verification) was filed in the district court of Atchison county: “I, J. T. Allensworth, assistant attorney general of the state of Kansas for Atchison county, for and on behalf of the state of Kansas, come now and give to the court the information, that it may be informed and understand that on the first floor of the building commonly known as 105 and 107, North Fifth street, and located on the south…

Err oí' from Sedgwick Disti'ict Court. Action brought by H. O. Bui'leigh and M. L. Bui'leigh, his wife, against the city of Wichita and others, for a perpetual injunction to restrain The City of Wichita, its officers and agents, from opening certain streets through the plaintiffs’ pi’emises.

Prosecution for a violation of the prohibitory liquor law. From a conviction and sentence at the September Term, 1885, .the defendant Shenkle appeals. The opinion states the case.

Error from, Sedgwick District Court. Gette Fechheimer brought an action against the Wichita & Western Railroad Company, alleging that it was a corporation organized and existing under the laws of the state of Kansas, and that on the first day of August, 1883, she was the owner of a tract of real estate situated in Sedgwick county, the boundaries of which were described.

Error from, Bourbon District Court. Action by The Railroad Company against Chenault and another, to recover $11,928.39. Trial by the court at the December Term, 1884, and judgment for defendants. The plaintiff brings the case to this court. The material facts are stated in the opinion.

Ph'ror from Wyandotte District Court. On June 30,1883, John T. Dwyer filed the following petition in the district court of Wyandotte county against The Missouri Pacific Railway Company: “Plaintiff for his cause of action states that the defendant is, and was at the date hereinafter mentioned, a railroad corporation operating, running and maintaining a railroad, and doing business in the state of Kansas from the state line between Missouri and Kansas, at the Missouri river,…

Original Proceedings in Quo Warranto. Action in the nature of quo warranto, brought in this court November 13, 1885, in the name of the state of Kansas, to oust the city of Topeka from the exercise of certain powers. The provisions of the constitutions of the United States and of the state of Kansas, and of the statutes and city ordinances applicable to the case, read as follows : “ Section 1.

Prosecution for a violation of the prohibitory liquor law. The defendant, Pfefferle, and another, jointly charged in an information containing five counts, were jointly tried at the June Term, 1886, and were found guilty on all the counts. Pfefferle was sentenced on each count to pay a fine of $100, to be imprisoned for thirty days in the county jail, and to pay the costs of the prosecution, taxed at $213.25. He appeals. The material facts are stated in the opinion.

Motion to Dismiss Cause. April 29, 1886, the defendant in error filed a motion to dismiss the petition in error, which motion the court overruled at its session in December, 1886.

Original Proceedings in Mandamus. On October 11, 1886, there was filed in this court the following petition, (omitting court and title:) “… Held: and appointing three qualified electors of said city to act as judges of said election, and two other electors of said city to act as clerks, and three other electors of said city to act as a board of canvassers of said election returns; and to forthwith enter said order at length on the journal of the proceedings of said board of…

<p>X. Case-Made; Amendment. A case-made for the supreme court cannot be amended or supplemented in the supreme court by inserting anything therein or attaching anything thereto which did not belong to the “ case-made ” and constitute a part thereof when it was originally settled and. signed by the judge, and attested by the clerk of the court below.</p> <p>2. ---- Order, not Reviewable. An order of the district court overruling a motion to discharge an attachment is not reviewable in the supreme court until a final judgment has been rendered in the ease.</p>

Error from Atehison District Court. Proceeding brought in this court by The Chicago & Atchison Bridge Company to reverse the ruling of the district court at the June Term, 1886, dissolving a temporary injunction which had been granted against The Pacific Mutual Telegraph Company, and others. The opinion states the facts.

Error from Atchison District Court. Injunction, brought by The Chicago & Atchison Bridge Company against The Pacific Mxitual Telegraph Company., and others. Judgment for plaintiff at the February Term, 1886. The defendants bring the case here. The opinion states the facts.

Original Proceedings in Mandamus. Mandamus, brought in this court July 14, 1886, by The Railroad Company against the County Board of Stafford County. The opinion herein, filed January 7, 1887, contains a sufficient statement of the case.

Error from Bourbon District Court. Action brought uuder § 422 of the civil code, by Mary A. Rush, as administratrix of the estate of Michael O’Connor, deceased, against The Railway Company, to recover $10,000' damages for wrongfully and negligently causing the death of said decedent. Trial at the December Term, 1884, and judgment for the defendant. The plaintiff brings the case here. The material facts are stated in the opinion.

Error from Marshall District Court. Action brought by W. L. Souders before a justice of the peace, to recover the possession of a quantity of corn which he claimed by virtue of a chattel-mortgage lien, and which had been levied on and taken possession of by Jacob R. Voorhees, as sheriff, under an execution and attachment. The trial resulted in favor of the plaintiff.

M'ror from Marshall District Court. ■ Replevin, brought by Clarh against Voorhees. Judgment for defendant, at the August Term, 1884. The plaintiff brings the case here. The opinion states the material facts.

Error from Doniphan District Court. Action by McOrum agaiust The Missouri Valley Life Insurance Company, to recover upon a certain policy issued by said company. April 3, 1885, the plaintiff recovered a judgment against the defendant for $525.05, and costs. The Company brings the case to this court. The opinion states the material facts.

Fh'ror from Anderson District Court. Action by The Northwestern Forwarding Company against Mahaffey, Slutz & Go. and Joseph Slutz, to recover $1,707.30. Trial by the court at the January Term, 1885, and judgment for defendants. The plaintiffs bring the case here. The opinion states the material facts.

Error from Osborne District Court. Robinson, Watson & Co. brought this action against Samuel T. Kindley to recover a commission for the sale of several tracts of land, alleging that they procured a purchaser in compliance with the terms of a contract made with the defendant. At the February Term, 1885, the parties waived a jury, and submitted the cause to the court for trial.- Findings of fact and of law were made, which are as follows: “ 1.

Error from Marshall District Court. On November 16, 1884, W. H. Sabins commenced his action in the district court of Marshall county, to enforce a mechanics’ lien, amounting to nineteen dollars and fifty cents, with interest, upon the premises described as lots forty-nine and fifty, in block twenty-five, in the town of Irving in that county. James S. Warden, B. Smith, William Murphy jr., and J. Armstrong were named defendants.

Error from Riley District Court. On April 8, 1885, L. Newell and twelve other householders of Riley county presented to the board of county commissioners of that county a petition for the laying out of a public road. Subsequently other proceedings were had, -which resulted in the board ordering the road opened as located and surveyed. On June 5, 1886,/.

Error from Jackson District Court. Replevin, brought by Schooley against Nuzman and another. Trial at the June Term, 1885, and judgment for plaintiff. The defendants bring the case here. The opinion states the facts.

Error from Wabaunsee District Court. The opinion states the nature of the action, and the material facts. The relator, Pierce, brings the case here.

Error from Dickinson District Court. Action brought by Carpenter against Fisher, to restrain the defendant from obstructing a certain so-called public street. Trial at the October Term, 1885, and judgment for plaintiff. The defendant brings the case here.

Prosecution for an assault and battery. The defendant Mize was tried at the August Term, 1886, found guilty of an assault, and sentenced to pay a fine of $10 and costs. He appeals.

Fh'ror from Marion District Court. Action for the recovery of land, and for rents and profits. Judgment for plaintiff, Baxter, at the June Term, 1885. The defendant, Seibert, brings the case here. The opinion states the facts.

<p> Error from Wyandotte District Court. </p> <p>On January 29, 1884, Kersey Coates, as assignee of the Mastín Bank, brought his action against Rufus E. Cable to recover the immediate possession of a parcel of land situate in Wyandotte city, and containing one-sixth of an acre. The defendant filed an answer, setting up, among other things, a tax deed issued to him on September 5,1881. Trial was had December 27, 1884, before the court, a jury being waived. The court took the case under advisement, and on January 29,1885, made the following findings of fact:</p> <p>“1st. The plaintiff is the owner, has a legal estate in, of and to the premises described and demanded in his petition, by and through divers conveyances from the government of the United States of America down to himself as the assignee of the Mastín Bank, a banking corporation duly organized under the laws of the state of Missouri, and such assignment was made to plaintiff pursuant to the laws of said state.</p> <p>“2d. No tender was made by plaintiff to defendant before the commencement of this action for taxes paid by defendant on the premises in controversy.</p> <p>“3d. The defendant’s sole claim of title to and right to possession of the demanded premises is predicated upon a tax deed issued to him for said premises by the county clerk of Wyandotte county, state of Kansas, bearing date September 5,1881, which was recorded in the office of the register of deeds on the same day; and said deed is based upon a sale of said premises made on the 4th day of September, 1878, for the delinquent taxes for the year 1877, and the sale certificate upon which said tax deed is based is No. 627, and recites a sale of said premises as herein stated on the 4th day of September, 1878, and recites that a tax deed will be due thereon on the 4th day of September, 1881. Said deed is in the words and figures following, to. wit:</p> <p>“ ‘ Know all men by these presents, that whereas, the following described real property, viz.: Beginning fifty-three poles east and thirty-eight poles south of northwest corner of the southwest quarter of the northeast quarter of section ten, town eleven, range twenty-five; thence south sixty feet; thence east to west line of Ferry street extended in the city of Wyandotte, fifty-nine feet; thence in a northeasterly direction to a point due east of beginning; thence west to beginning, and containing 21-100 acres, situated in the county of Wyandotte and state of Kansas, was subject to taxation for the year 1877; and whereas, the taxes assessed upon said real property for the year 1877 aforesaid remained due and unpaid at the date of the sale hereinafter mentioned; and whereas, the treasurer of said county did, on the 1th day of September, 1878, by virtue of authority in him vested by law, at an adjourned sale of the sale begun and publicly held on the first Tuesday of September, 1878, expose to public sale at the county seat of said county, in substantial conformity with all the requirements of the statute in such cases made and provided, the real property above described, for the payment of taxes, interest and costs then due and unpaid upon said property; and whereas, at the time and place aforesaid the real property above described could not be sold for the amount of said taxes, penalty and charges thereon, to any person or persons in any parcel or parcels, at said public sale or any adjournment sale thereof, the said lands above described were bid off by E. S. W. Drought, county treasurer of said Wyandotte county, state of Kansas, for the sum of twelve dollars and thirty-six cents, being the whole amount of taxes, interest and costs then due and remaining unpaid on said, real property, for said county of,Wyandotte, in said state of Kansas; and whereas, the subsequent taxes of the year 1878-1879 amounting to the sum of twenty-four dollars and forty-six cents, were duly charged up to said sale as provided by law; and whereas, D. R. Emmons, county clerk of Wyandotte county, state of Kansas, did, on the 22d day of February, 1881, in consideration of the sum of fifty-one dollars and twenty-five cents, taxes, interest and costs due on said land for the years 1877, 1878, 1879, to William Albright, treasurer of said Wyandotte county, paid by Rufus 33. Cable, of the county of Wyandotte and state of Kansas, duly assign the certificate of the sale of the property as aforesaid, and all the right, title and interest of said Wyandotte county to said property to said Rufus E. Cable; and whereas, the subsequent taxes of the year 1880, amounting to the sum of nine dollars and six cents, have been paid by the purchaser as provided by law; and whereas, three years have elapsed since the date of said sale, and the said property has not been redeemed therefrom as provided by law: now, therefore, I, D. R. Emmons, county clerk of the county' aforesaid, for and in consideration of the sum of sixty dollars and thirty-one cents, taxes, costs and interest due on said lands for the years 1877, 1878,1879, 1880, to the treasurer paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said Rufus E. Cable, his heirs and assigns, the real property last hereinbefore described, to have and to hold unto him, the said Rufus E. Cable, his heirs and assigns forever, subject, however, to all rights of redemption provided by law.</p> <p>“ ‘ In witness whereof, I, D. R. Emmons, county clerk as aforesaid, by virtue of the authority aforesaid, have hereunto subscribed my name and affixed the official seal of said county, on this 5th day of September, 1881.</p> <p>(Seal.) D. R. Emmons, Gouniy Clerk.</p> <p>___| Witnesses.</p> <p>“1 State oe Kansas, County oe Wyandotte, ss. : I hereby certify that before me, E.'B. Anderson, a notary public in and for said county, personally appeared the above-named D. R. Emmons, clerk of said county, personally known to me to be the clerk of said county at the date of the execution of the above conveyance, and to be the identical person whose name is affixed to, and who executed the above conveyance as clerk of said county, and who acknowledged the execution of the same to be his voluntary act and deed as clerk of said county, for the purposes therein expressed.</p> <p>‘“Witness my hand and notarial seal, this 5th day of September, 1881. My commission expires February 9, 1884.</p> <p>(Seal.) F. B. Andebson, Notary Public.</p> <p>Tax deed from Wyandotte county to Rufus E. Cable.</p> <p>“‘State oe Kansas,Wyandotte County, ss.: This instrument was filed for record on the 5th day of September, 1881, at 2 o’clock p. m., and duly recorded in book 15, on pages 93, 94. Fee $1.25; paid.</p> <p>J. S. Clabk, Register of Deeds.</p> <p>“‘I hereby certify that the within deed was entered for transfer on my transfer record this 5th day of September, 1881.</p> <p>D. R. Emmons, County Clerk.’</p> <p>“4th. Defendant has paid all taxes assessed against said premises since the date of said tax deed, amounting in the aggregate to the sum of $157.57, including interest and penalty.</p> <p>“5th. The notice and list of delinquent lands and town lots, including the premises in controversy, for sale in September, 1878, for the taxes of the year 1877, the said notice and list of delinquent lands and town lots, bear date July 25, 1878; and said list and notice were published the requisite length of time before the day of sale in a newspaper printed and of general circulation in Wyandotte county, Kansas, and the sole proof of such publication is the affidavit of the publisher of such newspaper attached to a copy of said newspaper containing said notice of sale and list now on file in the office of the county clerk of said county, and no affidavit or other proof of the publication of said notice of sale and list by the county treasurer of said county or any other person was made, nor were any such ever filed either in the county clerk’s or treasurer’s office, except that of the printer’s, so attached, and referred to herein.</p> <p>“ 6th. The redemption notice (and list) from such sale was published the requisite length of time in a newspaper printed, published and generally circulated in said county, which notice declares the last day of redemption to be September 5, 1881, from said sale for delinquent taxes so made on September 4,1878.</p> <p>“ 7th. Plaintiff, nor his grantors, nor any person in his or their behalf, ever made any effort to redeem said premises from such sale prior or subsequent to the execution and delivery of said tax deed to the defendant.”</p> <p>And thereon, the court made the following conclusions of law:</p> <p>“•The plaintiff is the owner and entitled to the immediate possession of the demanded premises against the defendant, and the defendant’s said tax deed was and is void, and no title was communicated by said tax deed to the defendant to or for any portion of the premises in controversy, and defendant is entitled to recover of and from plaintiff all taxes paid on said premises as prescribed by law in such cases, aggregating the sum of $157.57, which is a lien on and against said premises until paid; and defendant is also entitled to recover of and from plaintiff the value of any and all lasting and valuable improvements made by him on said premises prior to the commencement of this action; and upon payment of said taxes, and upon payment of said improvements by the plaintiff to the defendant, the defendant shall forthwith surrender actual possession of the demanded premises unto the plaintiff, and the plaintiff shall recover his costs, in this behalf expended, of and from the defendant.”</p> <p>The defendant filed a motion for a new trial, which was overruled, aud judgment rendered in favor of the plaintiff that he have and recover of and from the defendant the possession of the real estate described in the petition; the defendant to recover the taxes, interest and penalties paid by him on the premises; and also the value of all lasting and valuable improvements made by him upon the land prior to the bringing of the action. The defendant excepted, and brings the case here.</p>

M'ror from Dickinson District Court. Action to recover damages for bodily injuries. At the February Term, 1885, judgment for plaintiif ■Hendricks, for $1,900. . The City brings the case here. The opinion states the facts.

Error from, Washington District Qourt. Action brought before a justice of the peace by Rohlfs against Struber, to recover money. Judgment for plaiutiff. The defendant appealed. At the April Term, 1885, the district court dismissed the appeal. Struber brings the case here. The opinion states the material facts.

Error from Bourbon District Court. Action by Briggs against Latham, to recover on an alleged guaranty of a mortgage. Trial at the December Term, 1884, and judgment for defendant for costs. The plaintiff brings the case here. The opinion states the facts.

<p>1. Seoubity eob Costs ; Abuse of Discretion. If the court abuses its discretion in not requiring a non-resident plaintiff, upon the motion of the defendant, to give additional security for costs, a judgment rendered in his favor will not be reversed solely for such error, because, after judgment, the defendant has no ground of complaint, as he is liable for all the costs embraced in the judgment rendered against him.</p> <p>2. --; Immaterial Errors. The supreme court will not reverse a judgment of the district court for errors which are wholly immaterial.</p> <p>3. Findings ; Bequest, Too Late. Where, in an action tried by the court without a jury, the judgment is rendered on March 30, 1885, and the motion for a new trial is not argued and decided until April 25, 1885, and no request or intimation is given to the court by either party that it is desirable that the court should state its conclusions of fact and law separately in writing before it announces its findings, and not until the motion for a new trial is overruled and final judgment entered, held, that the request is made too late, and the court commits no error in refusing, upon a request made at such time, to state in writing its findings.</p>

Error from, Shawnee District Court. The opinion states the nature of the action,-and the material facts. Trial at the January Term, 1885, and judgment for defendants. The plaintiff, Losch, brings the case to this . court.

Original Proceedings in Quo Warranto. Action brought in this court January 20, 1886, by B. W. Tarbox against P. F. Sughrue, to determine the title of the parties to the office of sheriff of Eord county: also, certain other proceedings in the nature of quo warranto, to wit, Cherrington v. Jerningan; Gaede v. Gallagher; Beard v. Van Tromp. The opinion, filed at the February, 1877, session of the court, states the material facts.

Original Proceedings in Mandamus. Action brought in this court August 20, 1886, by The State of Kansas, on the relation of the attorney general, against Walter I. Harwood and E. M. Campbell, as members of the board of commissioners of Seward county, and J. M. Wilson, county clerk of said county, to compel the defendants to duly canvass the returns of the election held in that county on August 5, 1886, for the permanent location of the county seat thereof.

M'ror from Fllsworth District Court. Action by Larldn against Clark and another, to recover for goods alleged to have been sold and delivered by plaintiff to defendants. Trial at the April Term, 1885, and judgment for plaintiff for $469.46. The defendant Burton brings the •case here. The opinion states the facts.

Error from Sedgwick District Court. Action by Hill against Timmermeyer, to recover certain lots in the city of Wichita. Trial at the February Term, 1885, and judgment for defendant. The plaintiff brings the case here. The opinion states the facts.

Error from Bourbon District Court. Action brought by Ellis Briggs, as the holder of certain promissory notes against Dellen N. Latham, as the indorser of the same. Dellen N. Latham owned a tract of land in Minnesota, which she sold in July, 1876, to Cornelius Quirk. Only a part of the purchase-price was then paid, and for the residue Quirk executed four promissory notes, secured by a mortgage 011 the laud.

Error from Clay District Court. Action by Martha Hoeburg against John Cole, to recover $5,000 damages for an alleged breach of a promise of marriage, and for seduction under the promise aforesaid. January 22, 1885, judgment for plaintiff and against defendant for $5,000, as upon a default and without the introduction of any evidence. To reverse this judgment, the defendant brings the case to this court. The opinion contains a sufficient statement of the facts.

Error from Shawnee District Court. Action by Harriet Moore, as administratrix of the estate of Horace Moore, deceased, against John S. Jordan and three others, to recover upon five promissory notes, and to foreclose a certain real-estate mortgage which had been given by defendants Jordan and wife to secure the payment thereof. Trial at the April Term, 1884, and judgment for defendants. The plaintiff brings the case here. The material facts appear in the opinion.

Error from Marion District Court. Action by Neal and another against Crisfield, to recover $525 with interest. Judgment for plaintiffs at the June Term, 1884. The defendant brings the case here. The opinion states the material facts.

Drror from Wyandotte Distriol Court. Bohart, Dillingham & Company brought an action in the district court of Wyandotte county against Oberne, Hosioh & Company, alleging that on July 5, 1883, the defendants sold to the plaintiffs certain property which was evidenced by a writing executed by the defendants and delivered to the plaintiffs, which is as follows: “Kansas City, Mo., July 5,1883. — This is to certify, that we, the undersigned, have this day sold to Bohart,…

Error from Harvey District Court. Replevin, brought by The Harvey County Bank and another, against John F. Wafer, as sheriff of Harvey county. Judgment was rendered for plaintiffs March 31, 1885. The defendant brings the case here. The opinion states the material facts.

E. C. Walker and Lillian Harman were prosecuted iu the district court of Jefferson couuty for a violation of §12 of the marriage act, which reads as follows: “That any persons living together as man and ivife within this state, ivithout being married, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in a sum not less than five hundred nor more than one thousand dollars, or be imprisoned in the county jail not less than thirty days nor more…

lal Proceedings in Quo Warranto. Actioi ht in this court September 22, 1886, by The State, ou tuv. >on of the attorney general, against The Oity of Leavenworth, to forever oust said city from exercising or attempting to exercise the power to authorize or license the sale of intoxicating liquors therein. For answer to plaintiff’s petition, the defendant filed a general denial. The opinion herein was filed at the March, 1887, session of the court.

Prosecution brought against Thomas Mg Gafin for the murder of Harrison Sherman.

On April 26, 1886, there was filed in the district court of Cherokee county the following information, omitting caption, verification, and indorsements: “ In the name and by the authority of the state of Kansas, I, C. O. Stockslager, county attorney in and for the county of Cherokee, in the state of Kansas, who prosecute for and on behalf of said state, in the district court of said district, sitting in and for the county of Cherokee, and duly empowered to inform of offenses…

Prosecution for murder in the first degree. From a conviction at the March Term, 1886, the defendant Taylor appeals. The opinion states the case.

Error from, CheroJcee District Court. Injunction, brought by The State, on the relation of the county attorney of Cherokee county, against the Board of Commissioners of said county, and the county clerk thereof. On September 7, 1886, the judge of the district court refused to dissolve the temporary injunction theretofore granted in the action. The defendants bring the case here. The material facts are stated in the opinion.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in this court February 19, 1887. The opinion, filed at the April, 1887, session of the court, states the case.

Error from Ellis Eistriet Court. Beplevin, brought by Martha Krueger against Charles Miller. Judgment for the plaintiff at the November Term, 1884. The defendant brings the case here. The opinion states the facts.

<p>1. Corporations; Torts; Liability; Exemplary Damages. Corporations may be held liable for torts involving a wrongful intention, such as false imprisonment; and exemplary damages may be recovered against them for the wrongful acts of their servants and agents done in the course of their employment, in all cases and to the same extent that natural persons committing like wrongs would be held liable.</p> <p>2. Instruction — Withdrawal, Beneficial to Defendant. Where the court, in an action for false imprisonment, gave the jury an instruction permitting them to award exemplary or punitive damages to the plaintiff upon testimony justifying such damages; and subsequently recalled the jury and withdrew from them that instruction, making no other modification in the charge; and denied the application of the defendants to further address the jury after the instruction had been withdrawn: Held, That the ruling of the court in withdrawing the instruction, although erroneous, was beneficial to the interests of the defendants; and there can be no reversal unless the erroneous ruling is injurious to the party complaining.</p> <p>3. Corporation, Liable for Torts of Agent. A corporation is responsible for the tortious acts of its agent done in the line of his employment and in the execution of the authority conferred, although such corporation did not directly authorize the wrong action or subsequently ratify it.</p> <p>4. Contempt — Notice; Opportunity to Defend; Void Judgment. The proceeding authorized by § 69 of the justices code is incidental to the action of replevin, and virtually provides for the punishment of a contempt, but the punishment therein provided cannot be inflicted without giving the party accused notice of the proceeding and an opportunity to defend; and a final judgment under that section committing a party for contempt without giving him notice or allowing him a hearing and an adjudication upon the merits of the charge, is illegal and void.</p> <p>5. Damages, Not Excessive. The facts and circumstances of the case reviewed, and the award by the jury of one thousand dollars as damages for the wrong and injury inflicted by the false imprisonment is held to be fully justified, if not too small.</p>

Error from Ellis District Court. On September 5, 1882, Henry W. Wulfekuhler and Frederick Wulfekuhler, partners as Rohlfing & Go., commenced their action to recover the value of a certain stock of goods alleged to be worth $1,222.28, with interest from January 30, 1882, which the petition stated belonged to John G-.

Error from Cherokee District Court. The opinion contains a sufficient statement of the facts. July 14,1884, judgment for defendant Chidester. The plaintiffs, Hartley and another, bring the case here.

Error from Washington District Court. Action by The Railroad Company against Knuffke, to recover the possession of certain buildings and material. Judgment for the defendant, at the April Term, 1885. The plaiutiff brings the case here. The material facts appear in the opinion.

Error from Atchison District Court. On June 11, 1884, William Herndon filed his bill of particulars before a justice of the peace of Atchison county, claiming from Jacob M. Smith, A. J. Morris, and O. W. Butt, late partners as Smith, Morris & Butt, $60 for work and labor. The summons in the case was served upon Jacob M. Smith, June 11, 1884, the officer returning that he could not find A. J. Morris and O. W. Butt in his county.

Error from Cowley District Court. Action to set aside certain partition proceedings. Judgment for plaintiff Geiser, as guardian, etc., at the January Term, 1885. The defendant Daleschal and two others bring the case to this court. The opinion contains a sufficient statement of the facts.

Error from Wabaunsee District Court. Action commenced May 12,1884, by the plaintiff in error, to recover the possession of a tract of land in Wabaunsee county, Kansas. July 18, 1885, trial and judgment for the defendant for costs, and judgment for plaintiff for the amount of taxes, and that the same be decreed a lien on the land. Case brought to this court by plaintiff, and cross-petition filed by defendant in error.

Error from Johnson District Court. Trial at the March Term, 1885, and judgment for costs against the plaintiff company, which brings the case here. The opinion states the material facts.

<p> Error from Reno District Court. </p> <p>Action brought by Horrigan against The Kansas Lumber Company, to compel the specific performance of a contract alleged to have been made between the defendant and the plaintiff for the conveyance of 160 acres of land in Reno county. The defendant demurred to the plaintiff’s petition upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled by the court at the May Term, 1885. The defendant brings the case to this court.</p>

Error from Lyon District Court. Action by Culver & Co. against Warren, to recover $350.75. Trial June 16, 1885, and verdict for plaintiffs for full amount claimed; verdict set aside, new trial granted, and cause continued. The plaintiffs bring the case here. The opinion states the facts.

Error from Lyon District Court. Trial at the March Term, 1885; judgment for plaintiff for $300 and costs. Defendant brings the case here. The opinion states the material facts.

Error from, Morris District Court.. At the April Term, 1885, the plaintiff McConnell recovered a judgment for $14.41 against defendant Stillman, who brings the case here. The facts are stated in the opinion. E. S. Bertram, for plaintiff in error.

<p>Fire-Abms — Power to Prohibit Discharge. A city of the third class, organized under chapter 60, Laws of 1871, has power to pass an ordinance prohibiting the discharge of fire-arms within its limits.</p>

Error from Smith District Court. At the April Term, 1885, Fansler recovered a judgment against Isenberg, who brings the case here. The facts appear in the opinion.

Error from McPherson District Court. Action brought before a justice of the peace by Scruggs against The Hart Pioneer Nursery Company, a corporation organized and doing business under the laws of the state of Kansas, to recover for services claimed to have been rendered by plaintiff for defendant. Judgment for plaintiff; the defendant took the cause by petition in error to the district court, wherein, at the April Term, 1885, the judgment of the justice was affirmed.

Error from, Shawnee District Court. Action by Jaffray against Dunn, to recover $268.35 and interest, for the use of a certain store-room in the city of Topeka. Judgment for the plaintiff for $318.25, at the April •Term, 1884. The defendant brings the case here. The opinion states the material facts.

Ph'ror from Cloud District Court. Action by Clark against Houston to quiet the title to certain lots in the city of Concordia. Trial by the court at the April Term, 1885, and judgment for plaintiff. The defendant brings the case to this court. The facts appear in the opinion.

Prosecution for criminal libel. The information was filed on the 3d day of May, 1886, and it contained the following charge: “That one William E. Yerry, at the county of Brown and state of Kansas, on the 12th day of March, 1886, did, unlawfully and willfully, maliciously make, write, print, compose, dictate, publish and circulate, and procure to be made written, printed, composed, published and circulated, among other things, certain false, scandalous, malicious and…

<p>Juby — View of Premises. This is one of the oases contemplated by 1277 of the code, in which the court could make an order to allow the jury to view the premises, and such an order is left by the statute to the discretion of the trial court.</p>

Error from Labette District Court. Action begun October 4, 1883, by Elizabeth Peregoy, as administratrix of, the estate of James W. Peregoy, deceased, against The Missouri Pacific Railway Company, to recover damages for the killing of her son, the said James W. Peregoy, who had been an apprentice employed in the defendant’s railway machine shops at Parsons, Kansas, and had been so employed for about two months.

<p> Error from Shawnee District Court. </p> <p>Action brought by Armstrong against The City of Topeka, to restrain the defendant from opening a street through the land of the plaintiff. A temporary restraining order was granted by the probate judge of Shawnee county. Trial at the September Term, 1886.</p> <p>The court found substantially that plaintiff was the owner in fee simple of the property in question, being a tract of land 224 feet by 315 feet, bounded on all sides by streets, alleys, blocks and lots, regularly platted and laid out aá a part of the city of Topeka; and also found that in 1869, Zenos King, the owner and proprietor of seventy-two acres surrounding the land in controversy, except upon the east, where it joined the then western boundary of the city of Topeka, caused his said seventy-two acres, and also eight acres besides, including this land of Armstrong, to be duly laid out in lots, blocks, streets and alleys, in substantial conformity to law, so far as mere form is concerned, and made an acknowledgment, signed by himself and his wife, in which appeared the following as' a part thereof:</p> <p>“It is our purpose to have said plat duly recorded, with a view to the sale of said lots; but this representation and plat are not to be construed as warranting against the rights of any person or persons concerning the whole or any part of such portion of said addition as is contained within the bounds of the red dotted lines exhibited thereon.”</p> <p>The said dotted lines bounded the eight acres to which Zenos King had no title.</p> <p>On the 21st day of February, 1871, an ordinance was duly passed by the mayor and council of the city of Topeka, annexing King’s addition to the city of Topeka. On the 15th day of April, 1875, an ordinance was duly passed, reestablishing the boundaries of said city, which ordinance included within the city limits the land in controversy in’ this action. On the 21st day of February, 1882, another ordinance was passed, also defining the boundaries of said city, which included within the city limits this land in question. On the 16th day of March, 1883, a large number of persons, citizens of said city, resided south and west of the land in controvei’sy in this action, and the extension and opening of a street through the land in question was a public necessity, and proper and regular steps were taken to open said street across the land of plaintiff, provided the land was a part of the city; that since February, 1871, the plaintiff and his grantor regularly paid taxes on said property, the same having beeu assessed for taxes in the city of Topeka; that there is no evidence tending to show in this action that the plaintiff or his grantor at any time ever consented in writing that the land in controversy might be annexed to the city of Topeka, but at the date of the publication of said ordinance, and ever since, plaintiff and his grantor have been citizens of the state of Kansas.</p> <p>Finding eighteen is as follows:</p> <p>“The only question in controversy in this action is, whether the city of Topeka, defendant, at the time of the condemnation proceedings had jurisdiction to take and appropriate the land belonging to the plaintiff for a street, inasmuch as the land appropriated by said city had not at any time been surveyed and platted into lots, blocks, streets and alleys, by the proprietor thereof, nor annexed to the city of Topeka with the written consent of the plaintiff as grantor.”</p> <p>The court found as conclusions of law, that the city of Topeka, by its several ordinances referred to, intended to and did annex all of said King’s addition to the city of Topeka, and the proprietors of said tracts have acquiesced in said annexation of their land ever since the passage of the ordinance of February, 1871, and by the acts of the plaintiff he had ratified in law the several acts of the defendant annexing and including the land in controversy, within the jurisdiction of the city of Topeka; that the proceedings of the city, in condemning and appropriating the plaintiff’s land in controversy for a street, were regular in all respects, and the said city has jurisdiction to condemn and appropriate the land in question for the purpose of said street and the use of the public. New trial denied, and judgment for The City and against Armstrong. He brings the case here.</p>

<p>Shebiee’s Sale, Not Set Aside for Inadequacy of Price. A mortgagee, who had obtained a decree of foreclosure, caused an order to be issued for a sale of the land, and two days prior to the day of sale addressed a letter to one of his attorneys, who resided about three hundred miles distant, at the place where the sale was to occur, asking him to attend the sale and bid in the property at $200; and in case there was competition, to bid up to the amount of the judgment, interest and costs, which was about $450. When the letter was received the attorney could not arrange his business to be present at the sale, and he requested another to attend and bid according to directions. This the other promised to do, but failed to appear and bid upon the property. The sale was fairly and regularly conducted, and the land was sold to a bona fide purchaser, who was a stranger to the proceedings, for $180. The property was worth about $550, but had been sold by the sheriff a few months prior to that time for $200. It did not appear that the agent requested to represent the mortgagee at the sale was capable and reliable, nor was any reason shown for his non-observance of the request. Held, Upon an application by the mortgagee to set aside the sale in which the mortgagors did not join, that the inadequacy of price, with the unexplained failure of the agent to bid at the sale, is insufficient to overthrow the sale and to defeat the purchaser from obtaining what he had in good faith purchased.</p>

Eh'ror from Shaionee District Court. May 4, 1885, Eliza Moeser, as administratrix of the estate of Henry Moeser, recovered a judgment for $758.30 and costs against defendants, Durein and Kreipe. They bring the case here. The material facts are stated in the opinion.

JEh'ror from, Atchison District Court. All material facts are embraced in the findings of fact, which are as follows: “1. On November 19, 1880, the defendants executed their promissory note and delivered the same to the plaintiff, a copy of which is as follows: “ ‘ $62.40.

Error from Washington District Court. Action brought August 1, 1884, by Mary Ellen Crimmins against Ellen Morrisey and Michael Morrisey, to set aside a deed of conveyance for certain real estate situated in Washington county, executed by the plaintiff to the defendant, Ellen Morrisey. The defendants filed separate answers and separate amended answers, and the plaintiff replied.

<p> JSrror from Shawnee Superior Court. </p> <p>The opinion states the case.</p>

Error from Shawnee District Court. On August 6, 1884, the district court, over the objection of H. K. Tefft, made an order reviving a certain judgment. To reverse that order, Tefft brings the case here. The opinion states the material facts.

Error from Cloud District Court. The opinion states the nature of the action, and the facts. Trial by the court, June 6, 1885, and judgment for the defendants. The plaintiff Weir brings the case here.

<p> Error from Ellsworth District Court. </p> <p>Proceeding brought in this court to reverse an order of the district court of Ellswoi’th county, refusing to grant a writ of assistance to J. E. Watkins, the purchaser of certain real estate sold by the sheriff of said county, in an action foreclosing a real-estate mortgage. The decree of foreclosure provides, among other things, that “ each and all of such defendants, and all persons claiming or to claim under or through them, or either of them, be barred and foreclosed of all right, title, intei’est, claim and equity of redemption in and to the above-described premises, and each and every part and parcel thereof, from and after said sale.” Upon the hearing of the motion, the district court found the facts and the law to be as follows:</p> <p>“findings of fact.</p> <p>“1. On the 1st day of November, 1880, Leroy W. Smith and Eva Smith were the owners of and in possession of the south half of the southwest quarter, and the south half of the southeast quarter of section 14, township 17, range 6, west of the 6th P. M., and situate in the county of Ellsworth and state of Kansas. On said 1st day of November, Leroy W. Smith and Eva Smith, as husband and wife, duly executed their certain two real-estate coupon-mortgage bonds for $500 and $400, respectively, and to secure the payment of the same duly executed and delivered unto O. L. Bacon, the payee in said coupon real-estate bonds, their certain mortgage to and upon the real estate above described, and the mortgage was on the first day of November, 1880, duly filed for record and recorded in the office of the register of deeds of Ellsworth county, Kansas, in book C of mortgages, on page 360. On the 29th day of January, 1883, there was a default on the part of Leroy W. Smith and wife in complying with the terms of the said mortgage, whereby a cause of action accrued in favor of C. L. Bacon against them upon the mortgage above mentioned, and the whole of the indebtedness secured by said mortgage became due and payable.</p> <p>“2. On the 1st day of March, 1881, William Jerman, under some contract or arrangement made with Leroy W. Smith and Eva Smith, entered upon the possession of the real estate above mentioned, and has from that time continuously on to the present time remained in the possession of said real estate. On the 11th day of December, 1883, William Jerman in writing leased from Tootle, Shireman & Co., defendants above named, the real estate above described, for the term of to the first day of March, 1885, and William Jerman held and occupied the said real estate solely under the terms of his said lease with Tootle, Shireman & Co., from the 11th day of December, 1883, until the 15th day of February, 1885, at which time William Jerman made a verbal contract with Tootle, Shireman & Co. to pay to them $100 cash rent for the use of said premises for and during the year 1885, and William Jerman holds the premises under the last-mentioned verbal agreement.</p> <p>“3. Tootle, Shireman & Co. were, on the 11th day of December, 1883, the owners of the real estate above described, subject to the rights of C. L. Bacon, upon and under his mortgage. _ ■</p> <p>_ “4. On the 29th day of January, 1883, an action was duly brought against the defendants above named to foreclose the said mortgage, said action having been brought by C. L. Bacon against the defendants. William Jerman was not a party to said action, nor was he notified of the pendency thereof.</p> <p>“5. Each of the defendants named in the above-entitled action was duly summoned and notified, as required by law, Leroy W. Smith and Eva Smith having been personally summoned on the 7th of February, 1883, and Tootle, Shireman & Co. having been notified by publication, the last notice being dated June 11, 1884.</p> <p>“6. On July 25, 1883, Tootle, Shireman & Co. received from Leroy W. Smith and wife a deed to the above-described land, and said deed conveyed to Tootle, Shireman & Co. whatever interest they had or have in said land, which deed was duly recorded in the office of the register of deeds of Ells-worth county, Kansas.</p> <p>“7. At the September term, 1883, of the district court of Ellsworth county, Kansas, a decree of foreclosure was duly rendered against Leroy W. Smith and Eva Smith, in said suit brought by C. L. Bacon, and judgment was rendered for the sale of said land, to satisfy the amount then due upon said mortgage, to wit, the sum of $1,144.34. On the 13th day of September, 1884, a decree was duly entered in said suit, barring Tootle, Shireman & Co. of all right and claim in and to the real estate above described.</p> <p>“8. On the 22d day of September, 1884, an order of sale in said cause was duly issued out of the district court of Ells-worth county, and the real estate above described was duly advertised for sale, and was sold as required by law, the said J. B. Watkins being the purchaser thereof, and the sale having been made on the 1st day of November, 1884.</p> <p>“9. On the 16th day of April, 1885, the said sale was duly confirmed by the district court of Ellsworth county, and the sheriff of said county was ordered to make a deed to the purchaser, J. B. Watkins.</p> <p>“10. On the 22d day of April, 1885, J. B. Watkins went upon the real estate above described, and read the said sheriff's deed to William Jerman, and demanded possession of the said real estate. William Jerman refused to deliver the possession of the same. Said sheriff's deed was duly filed for record and was duly recorded in the office of the register of deeds on the 16th day of April, 1885.</p> <p>“11. William Jerman is now in the possession of the real estate above mentioned and described, and J. B. Watkins has not the possession thereof or any part thereof, and Jerman refuses and prevents J. B. Watkins from entering into and upon the possession of the said real estate.”</p> <p>“conclusions op law.</p> <p>“1. That the said J. B. Watkins is not entitled to a writ of assistance, for that the said William Jerman was not made a party to the above-entitled action.</p> <p>“2. That the said J. B. Watkins pay the costs of this proceeding, the same being taxed at $6.55.”</p> <p>At the April Term, 1885, the district court overruled the motion for a writ of assistance, to which ruling J. B. Watkins excepted, and brings the case to this court.</p>

Error from Elk District Court. Judgment at the May Term, 1885, for plaintiff Reid against defendant Rucker, who brings the case here. The opinion states the material facts.

Error from Nooks District Court. The opinion states the material facts. Judgment for plaintiff MeNeal at the September Term, 1884. The defendants Na/ymond and Longley bring the case here.

Error from Lyon District Court. Action brought by Kimball against Smith, to recover possession of certain land in Lyon county, of which the plaintiff alleged that he was both the legal and equitable owner, and entitled to the immediate possession thereof. . The answer contained a general denial of all the allegations of the petition, except that the defendant kept the plaintiff out of possession of the land in controversy.

<p> Error from Coffey District Court. </p> <p>The opinion states the case. At the July Term, 1885, plaintiff Morrow recovered judgment for $25 damages, $25 attorney’s fee, and costs, against the defendant Railway Company. It brings this judgment here for reversal.</p>

Information, ■ chargiug that James M. Evans did, on or about the 4th day of August, 1886, in the county of Neosho, in the state of Kansas, on purpose and with malice aforethought, shoot at Scott Y. Irwin with a loaded pistol, with intent to maim, kill and murder said Irwin. Prom a conviction and sentence, the defendant appeals. The opinion states the facts.

Error from Barton District Court. ■ At the June Term, 1885, plaintiff Lightbody had judgment for $29.53 against defendant Rohlfing, who brings the case here. The facts appear in the opinion.

Original Proceedings in Quo Warranto. Action brought iu this court, November 29, 1886, to determine the title to the office of county treasurer of Meade county. The opinion herein, filed at the May, 1887, session of the court, contains a sufficient statement of the case.

<p> Error from Shawnee District Court. </p> <p>M. E. Fowler & Co., plaintiffs in error, were real-estate agents in the city of Topeka during the year 1884, and as such had on their books for sale as agents for the owner, Squire Burns, lots 425 and 427, (with small house on each lot,) Clay street, North Topeka. On the 20th of March, 1884, the defendants in error purchased the lots from the plaintiffs in error, who signed and delivered to the defendants in error the following written instrument:</p> <p>“Received, Topeka, Kansas, March 20, 1884, from Barrett Quall and William Garrett, one hundred and forty dollars, as part payment on houses and lots numbered 427 and 425, Clay street, North Topeka; deferred payments to be as follows: $10 within thirty days; to assume mortgage of $100 due in October, 1884; balance, $300, to be paid on or before two years from date — the whole contract price $550. It is understood that the owner of the property (Burns) is to furnish abstract of title, give warranty deed, furnish sufficient warranty of clear title, etc. And if this offer in the aforesaid manner is not accepted, then the $140 is to be returned to the said Barrett Quail and William Garrett.</p> <p>M. E. Fowler & Co.”</p> <p>On the 21st day of March, 1884, Squire Burns, the vendor, and the defendants in error, made, executed and delivered to an attorney to hold for the benefit of all, the following agreement :</p> <p>“ This agreement, made this 21st day of March, 1884, by and between Squire Burns and Eliza A. Burns his wife, parties of the first part, of Topeka, Shawnee county, in the state of Kansas, and William Garrett and Barrett Quail, parties of the second part, of Christian county, in the state of Kentucky,</p> <p>“Witnesseth: That said parties of the first part, for the consideration hereinafter mentioned, covenant and agree to sell and convey unto said parties of the second part, their heirs and assigns, all the following-described real estate, situated in the county of Shawnee and state of Kansas, to wit: To said Barrett Quail lot numbered 425, and to said William Garrett lot numbered 427, both of said lots being and situate on Clay street, in Middaugh’s subdivision and addition to the city of Topeka, Shawnee county, Kansas. In consideration of which, said parties of the second part covenant and agree to pay unto the said parties of the first part, for the same, the sum of seven hundred dollars, as follows: Two hundred and fifty dollars paid cash in hand, the receipt whereof is hereby acknowledged; forty dollars deposited with M. E. Fowler & Co., to be paid by him when deeds are made as herein specified; one hundred and ten dollars to be paid within thirty days from this date— upon payment of which the deeds hereinafter specified shall be made, when the parties of the second part agree to give their separate promissory notes for the sum of $150 each, due in one and two years, secured by mortgage on said property.</p> <p>“And said parties of the first part, on receiving said sum and sums of money at the time and in the manner aforementioned, shall at their own expense execute and deliver to said parties of the second part an indefeasible estate of inheritance, in fee simple, of, and in all and singular the above-described premises, with the appurtenances, and warrant that the same are free, clear, discharged and unincumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and incumbrances, of whatever nature or kind soever.</p> <p>“ It is further agreed between the parties to these presents, that the parties of the first part are to retain possession of said premises until the 21st day of April, 1884, when the same shall be delivered up to said parties of the second part, upon their compliance with the agreements hereinbefore contained ; that said parties of the second part shall pay all taxes or assessments becoming chargeable to or upon said premises after delivery of possession thereof as aforesaid; and that if default be made in fulfilling this agreement, or any part thereof, by or on behalf of said parties of the second part, this agreement shall, at the option of said parties of the first part, be forfeited and determined, and said parties of the second part shall forfeit all payments made by them, on the same, and such payments shall be retained by said parties of the first part in full satisfaction and in liquidation of all damages by them sustained, and they shall have the right to reenter and take possession of said premises.</p> <p>“And it is further mutually agreed, that all covenants and agreements herein contained shall extend to and bind the respective heirs, executors, administrators and assigns of said parties.</p> <p>“In witness whereof, the said parties have hereunto set their hands, the day and year first above written.</p> <p>Squire Burns,</p> <p>¥m. Garrett,</p> <p>His</p> <p>Barrett X Quall.</p> <p>Executed in presence of mark'</p> <p>M. E. Fowler.</p> <p>G. A. Huron.”</p> <p>Action brought before a justice of the peace, by Quail and Garrett against Fowler & Co., to recover the $140 paid as aforesaid. Judgment for plaintiffs. The defendants appealed to the district court. Trial at the April Term, 1885, when the court instructed the jury to bring in a verdict for the plaintiffs for the full amount claimed; verdict and judgment accordingly; new trial denied. The defendants bring the case here.</p>

Error from Allen District Court. Bogle brings here for review certain orders made by the district court at the January Term, 1885, in a replevin action wherein Bogle was plaintiff and Bloom was defendant. The opinion states the material facts.

Error from, Linn District Court. Action by Shinlde against Richey, to recover damages for the breach of a certain contract. Judgment for plaintiff, at the April Term, 1885. The defendant brings the case here The opinion states the material facts.

Original Proceedings in Mandamus. On March 11, 1887, Mr. Justice Valentine allowed and indorsed the following alternative writ of mandamus: “To the said Mayor and Council of the City of Hiawatha, m the State of Kansas, and the said Frank J. Thomas, Clerk: Whereas, it has been suggested to us that the city of Hiawatha, being a city of the second class, did duly submit to the electors of said city of Hiawatha a proposition to vote fifty thousand dollars of thirty-year bonds,…

Error from Jackson District Court. This is the second hearing of this case in this court. (Hafer v. Hafer, 33 Kas. 449.) This action is for the partition of the homestead of the late Godfrey Hafer, who died intestate, on the 24th day of June, 1882, and left surviving him Virginia Hafer, his widow, and seven children. There was an ante-nuptial agreement between Godfrey Hafer and Virginia Bowser, now Virginia Hafer, made on the day of their marriage.

<p> Original Proceedings in Quo Warranto. </p> <p>The opinion states the case.</p>

Error from Montgomery District Court. Action brought by Bolson before a justice of the peace, against The Railway Company, to recover damages of the defendant for killing a cow belonging to plaintiff. The defendant made no appearance before the justice; judgment for plaintiff; defendant appealed; plaintiff filed an amended bill of particulars; defendant filed no answer. Trial by jury, at the December Term, 1884, and judgment for plaintiff for $35 damages and $225 costs.

Error from Brown District Court. At the September Term, 1884, plaintiffs George Esterly & Son recovered a judgment for $122.50 and costs against defendant Ewrneaux. He brings this judgment here for review-The opinion states the case.

<p> Error from Shawnee Superior Court. </p> <p>On November 15,1884, T.A. Harris commenced an action in the district court of Shawnee county in the nature of ejectment, against ¥m. Claflin, for the possession of the east half of the southeast quarter, section 28, township 12, range 14, in Shawnee county, excepting therefrom one acre occupied by School District No. 31. On March 18,1885, the case was transferred by the district court of Shawnee county to the superior court of that county. Trial had May 18, 1885. Judgment rendered September 5, 1885, for defendant. The court made and filed the following conclusions of fact:</p> <p>“1. On the 25th day of July, 1859, Lee M. Clark was the owner in fee of the land in controversy in this suit, viz.: The east half of the southeast quarter of section twenty-eight, town twelve, range fourteen east, in the county of Shawnee; and on said day said Clark made, executed and delivered to John W. Brown a mortgage on said premises, to secure the payment of twenty-five dollars in six months from the date of said mortgage, with interest at the rate of five per cent, per month until paid; and said mortgage was, on the 31st day of August, 1859, duly recorded in the register’s office of Shawnee county, in volume 3, on page 47 of the records of deeds.</p> <p>“ 2. On the 20th day of May, 1861, John W. Brown assigned and transferred said mortgage to Nathan P. Case, and on the 5th day of June, 1861, Case, as the owner and holder of the mortgage, commenced a suit against Clark iu the district court of Shawnee county, to foreclose said mortgage.</p> <p>“3. At .the time of the commencement of said foreclosure suit, Lee M. Clark was, and for several years thereafter he continued to be, a non-resident of the state of Kansas.</p> <p>“4. Process of summons was duly issued from said court against Lee M. Clark on the 5th day of June, 1861, directed to the sheriff of Shawnee county to execute, returnable according to law, and it appears by the return of the sheriff on said summons that Lee M. Clark could not be found in said county.</p> <p>“5. On the 5th day of June, 1861, an affidavit was made and filed in said suit, in the words and figures following:</p> <p>“ ‘ The State oe Kansas, County oe Shawnee, ss. — In the Third Judicial District, Shawnee County, Kas., October Term, 1861. — Nathan P. Case, Plaintiff, v. Lee M. Clark, Defendant. — Affidavit for Publication. — A. H. Case, being first duly sworn, doth depose and say that he is the attorney for the plaintiff in this suit, and that Lee M. Clark, defendant in the above-entitled cause, is a non-resident of this state, and when last heard from by this defendant, resided in the state of Illinois, and that to the best of his knowledge and belief, personal service of a summons cannot be made upon defendant in this state. And further saith not.</p> <p>A. H. Case.</p> <p>“‘Sworn to and subscribed before me, this 5th day of June, 1861.</p> <p>James Pletoheb, Clerk.</p> <p>By H. MoAethuk, D. G.’</p> <p>“No other affidavit for publication of notice to defendant in said cause was produced in the trial.</p> <p>“6. On the 14th day of October, 1861, there was filed in said cause an affidavit of publication, with a printed notice attached thereto; which affidavit and printed notice are in the words and figures following:</p> <p>“‘The State oe Kansas, Shawnee County, ss. — N. P. Casev. Lee M. Clark. — IS. G. Ross, being first duly sworn, doth depose and say : That the annexed notice was published in the State Record, in the city of Topeka, Shawnee county, Kansas, a newspaper of general circulation in said county, for seven weeks, as follows, to wit, the first insertion being made on the 7th day of June, 1861; the second, on the láth day of June, 1861; the third, on the 21st day of June, 1861; the fourth, on</p> <p>the 28th day of June, 1861; the fifth, on the --day of July, 1861; the</p> <p>sixth, on the.-day of J uly, 1861; the seventh, on the--- day of</p> <p>J uly, 1861. And further saith not. E. G. Ross.</p> <p>“ ‘ Sworn and subscribed before me, this 8th day of October, 1861, as witness my hand and seal of office. A. H. Case,</p> <p>“ ‘ [Seal.] Notary Public.</p> <p>a ( Notice. — Lee M. Clark, of the state of Illinois, will take notice, that Nathan P. Case, of the state of Kansas, did, on the 5th day of June, 1861, file his petition in the district court, sitting in and for the county of Shawnee, in the third judicial district in the state of Kansas, against the said Lee M. Clark, defendant, setting forth that the said Lee M. Clark gave a mortgage to one John W. Brown on the east half of the southeast quarter of section twenty-eight, township twelve, and range fourteen east, to secure the payment of twenty-five dollars, according to the tenor and effect of said mortgage, and praying that said Lee M. Clark may pay said sum of money now claimed to he due, with interest thereon from the 25th day of July, 1859, at the rate of five per cent, per month, or that the said premises may be sold to pay the same; which said mortgage was duly assigned and delivered to the said plaintiff by the said Brown, on the 20th day of May, 1861; and the said Lee M. Clark is notified that he is required to Appear and answer said petition within twenty days after the 22d day of July, 1861, or judgment will be entered against him by default.</p> <p>“ ‘ Topeka, June 5,1861. Nathan P. Case.</p> <p>By his attorney, A. II. Case.</p> <p>‘“Attest: James Fletcher, Clerk.</p> <p>By II. McArthur, Z>. C.* *</p> <p>“7. No other service of process than as above set forth was had. upon defendant Lee M. Clark, in said foreclosure suit, and he did not enter his appearance in said suit, nor anyone for him.</p> <p>“8. On the 5th day of June, 1861, a petition was filed in said cause by plaintiff, Nathan P. Case, showing on its face a ■cause of action in favor of him, the said Nathan P. Case, against Lee M. Clark, for the foreclosure of said mortgage.</p> <p>“9. On the 14th day of October, 1861, a judgment or decree was entered by the court in said cause, in the words and figures following;</p> <p>“‘Nathan P. Oabe v. LeeM. Ghaek. — And now comes the said Nathan P. Case, by A. H. Case his attorney; and the said Lee 3M. Clark still failing to demur or answer to the said petition, it is considered that the plaintiff ought to recover the amount due him by reason of the premises, and the court with the consent of the plaintiff finds that there is ■due from the defendant to the plaintiff on the mortgage set forth in said petition the sum of §63.84. It is therefore considered by the court here that the plaintiff recover of the defendant the sum of $63.84, the</p> <p>sum so found due as aforesaid, as also his costs, taxed at $-. And</p> <p>it is considered and adjudged that in case the defendant fails for ninety days from the closing of this term of court to pay the plaintiff the sum of §63.84, so as aforesaid found due, with costs of suit, that an order issue to the sheriff of said county, commanding him to cause the said lands and tenements in the petition described, to wit, the east half of the southeast quarter of section twenty-eight, township twelve, range fourteen east, in the state of Kansas, to be appraised, advertised and sold according to law, and apply the proceeds of said sale in satisfaction of said judgment as aforesaid rendered. And it is further ordered and adjudged, that the defendant be and he is hereby forever barred of all rights of equity of redemption in and to said mortgaged premises.’</p> <p>“10. In pursuance of said decree, an order of sale was issued for the sale of said land, and the same was appraised and advertised, and on the 22d day of May, 1862, sold at public sale by the sheriff of said county, to Nathan P. Case and A. H. Case, for the sum of $84, and on the 29th day of May, 1862, said sale was confirmed by the order and judgment of said court, and the sheriff was ordered to make and execute a deed of said land to purchasers, Nathan P. Case and A. H. Case.</p> <p>“11. In pursuance of the order and judgment of said court, the sheriff did, on the 18th day of June, 1862, make, execute and deliver a sheriff's deed of said land to Nathan P. Case and A. H. Case, which deed was afterward, on the 20th day of June, 1862, recorded in the office of the register of deeds of said county, in vol. 6, on page 483 of the records of deeds, and said deed was in due form of law.</p> <p>“12. At the time of said sheriff's sale, in 1862, said land was vacant and unimproved, and not in fact worth any more in cash than the amount at which it was appraised prior to said sale, to wit, $125.</p> <p>“13. At the time of the commencement of this present suit in 1884, said land was worth $10 per acre.</p> <p>“14. On the 26th day of February, 1863, Nathan P. Case and his wife executed and delivered to the defendant William Claflin a warranty deed of the undivided one-half of said land, which deed was on the day it bears date filed for record and recorded in vol. 7, on page 171, in the register’s office of Shawnee county.</p> <p>“15. On the 26th day of February, 1863, A. H. Case and wife made, execnted and delivered to the defendant William Claflin a warranty deed of the undivided one-half of said land, which deed was filed for record on the day it bears date, and recorded in vol. 7, on page 168, in the register’s office of said county.</p> <p>“16. The defendant, William Claflin, under claim of ownership by purchase as aforesaid, in good faith paid all the taxes on said land each year from 1866 to 1883, both inclusive. Lee M. Clark paid all the taxes assessed on said land prior to and including those assessed for the year 1865.</p> <p>“17. D. S. Skinner, a resident of Topeka, Kansas, acted as the agent of William Claflin in the payment of said taxes, and on one occasion negotiated, as such agent, a sale of one acre of said land for a school-house site, and in pursuance of such negotiation and sale, Claflin and wife, on the 1st day of July, 1882, executed and delivered to School District No. 31, a warranty deed of one square acre of said land, properly described in said deed, which deed was filed and recorded in the register’s office of Shawnee county, in vol. 86, on page 143, on the 14th day of October, 1882.</p> <p>“ 18. Claflin was never in the state of Kansas, and he resides in Boston, Massachusetts.</p> <p>“19. Lee M. Clark returned to this state in the year 1873, and located in Atchison county, and has continued to reside there ever since.</p> <p>“20. Lee M. Clark never took actual possession of said land, and did not look after it or pay any attention to it in any way, except to remit money to pay taxes, to and including the year 1865, from the time of said foreclosure suit up to August, 1884, when he was called upon by H. H. Harris, the husband and agent of the plaintiff, and then for the first time learned of said foreclosure proceedings. Previous to August, 1884, Clark had no actual knowledge of the foreclosure of said mortgage, except so far as said public records impart knowledge.</p> <p>“21. H. H. Harris, attorney for plaintiff in this suit, is the husband of plaintiff, and the owner of a tract of land adjoining the land in controversy on the west. In April or May, 1884, plaintiff went with her husband to see his land, and passed over the land in controversy in this suit; and she then expressed a desire to become the owner in her own name of the land in controversy, and authorized her husband to ascertain who owned the land and to buy it for her. Prior to that time H. H. Harris, the husband of the plaintiffj had made an examination of the public records of Shawnee county to find who was the owner of the land in controversy, and in his search saw and examined all the deeds and foreclosure proceedings and tax records showing the payments of taxes by defendant, as recited in the above proceedings; and thereafter, that is, after plaintiff’s request as above stated, by correspondence and inquiries learned the place of residence of Lee M. Clark, and went to see him in August, 1884, and purchased said land of him for the sum of $50, which sum he then paid to Clark out of his own money, and took a quitclaim deed for said land from Lee M. Clark and Nancy B. Clark, his wife, to T. A. Harris, plaintiff herein, bearing date August 28,1884, and which was, on the 30th of said August, duly recorded in vol. 94 of deeds, on page 378, in the register’s office of Shawnee county.</p> <p>“22. On the 30th day of August, 1884, H. H. Harris, as agent of the plaintiff, went upon said land and put two signs on posts, one near the south end near a road and one near the east side near a road, each of said signs reading as follows : ‘Keep off this land. — T. A. Harris, owner.’</p> <p>“23. H. H. Harris also on 30th of August, 1884, as agent of plaintiff, employed one Noah Hackley to plow a hedgerow of from four to six furrows ou the east, north and south sides of said land, leaving a space of about two rods on the edge of said three sides for public roads, and Haekley, in pursuance of such employment, did, on the first day of September, 1884, plow some four or five furrows on the three sides of said land, about two rods in from the out edge of said three sides, except at the southeast corner of said land, where there is a draw or sag in said land, there were no furrows plowed for about twenty rods, both on east and south sides. There was a public traveled road on three sides of said land, and in some places on the north and east sides said road turned for several rods onto said land, and then back to the edge, or near the edge, and in plowing furrows around said laud, as aforesaid, said road was crossed several times on the north and east sides of said land, and no plowing was done over or across said road, and said road continued to be traveled without interruption by reason of such plowing. H. H. .Harris owned the adjoining tract of land on the west, and there was no fence between said two tracts, except the one built by defendant, in■closing said land as aforesaid.</p> <p>“24. In September, 1884, and before said land was fenced by defendant, H. H. Harris told D. S. Skinner, of Topeka, as the agent of defendant, that he (Harris) was in possession of .said land, having had some plowing done on it.</p> <p>“25. In the latter part of October, 1884, a post and barbed-wire fence was built by defendant around said land, which fence was set in about two rods from the north, east and south sides of said land, and was set some of the way in the furrows that had been plowed by Haekley, as aforesaid, and it was built across the traveled road on three sides wherever said road bent in on said land beyond said strips of two rods on the out edge, and said fence was built by defendant on three sides as aforesaid, and on the line, on the west side, and was sufficient to turn stock and prevent public travel over said land, except oh the roadway or strips left on said three sides thereof. Said fence was built by defendant so as to not include said school acre. Haekley informed the agent of defendant who built said fence, that lawyer Harris, of Topeka, had had said furrows plowed around said land on three sides n3 aforesaid; at same time said Welch offered to pay Haekley for doing said plowing, and Haekley refused to accept.</p> <p>“26. At the time H. H. Harris purchased said land from <Ciark, as aforesaid, he knew that D. S. Skinner, of Topeka, was the agent of the defendant, and knew that Skinner had been acting for several years as the agent of defendant, and frequently met Skinner in Topeka, but made no inquiries of him as to the extent of his agency, or of the claims of defendant to said land.'</p> <p>“27. Lee M. Clark testified in his deposition, filed in this cause, that he had always claimed an interest in the land up to the time he executed the deed to plaintiff.</p> <p>“28. The defendant did not have the consent of the plaintiff to take possession of said land, or to build said fence thereon.</p> <p>“29. Plaintiff offered on the trial that the court might find the amount of taxes paid on land in controversy by defendant, with interest thereon at seven per cent, until the time of judgment herein, and if the amount should not be paid in sixty days from the date of judgment, said land should be sold therefor.”</p> <p>And thereon the court made and filed the following conclusions of law:</p> <p>“1. Lee M. Clark did not by any act or deed claim or show any interest in the land in controversy after he paid the taxes assessed thereon for the year 1865, until he executed to the plaintiff in August, 1884, the deed under which .plaintiff claims title in this suit.</p> <p>“ 2. The acts and proceedings on the part of plaintiff respecting said land did not constitute possession thereof.</p> <p>“ 3. Said land, except the one-acre tract sold and conveyed to the school district by the defendant, was vacant and unoccupied, and wholly unimproved until defendant Claflin took actual possession thereof by inclosing it with the fence described in the twenty-fifth finding of fact.</p> <p>“4. The plaintiff is not entitled to recover in this action.”</p> <p>Upon the foregoing findings of fact and conclusions of law, the court adjudged that the plaintiff take nothing by her petition herein, and that the defendant -recover of and from the plaintiff his costs herein. New trial denied. The plaintiff brings the case here.</p>

M'ror from McPherson District Court. The opinion states the case. Judgment for defendant Roberts, at the May Term, 1885. The plaintiff brings the case here.

Error from Shawnee District Court. Ejectment brought by Beal and Douthitt against Sarver and three others. Trial by the court, August 5, 1884, and judgment for plaintiffs. The defendants bring the case to this court. The facts are fully stated in the opinion.

Error from Clay District Court. Action brought by Henry against The Union Pacific Railway Company, to recover damages sustained by the backing-up of a train of cars over his omnibus and team at Clay Center.

<p>I. Tbiai. by Reeeeee; Report, Affirmed; Question in Supreme Court. Where the issues of an action were referred, and a trial had, and report made by a referee to whose rulings and report no exceptions were taken; and where the court refuses to set aside the report, but affirms the same over the objection of the failing party; and a proceeding in error is brought in the supreme court, the record of which embraces none of the testimony or proceedings taken before the referee, but only the pleadings, findings and judgment — -the only question concerning the action and report of the referee that can be considered and decided is, whether the findings are within the issues, and will support the judgment that was rendered.</p> <p>II. ----- Defective Findings; Practice. Where the findings of the referee are defective in not stating the facts fully and explicitly, the party complaining thereof should apply for further and more specific findings.</p> <p>3.--Findings, Talcen as True. In the absence of the testimony’ a reviewing court must take the findings of a referee as true, and can. not say that other findings would'have been justifiable.</p> <p>A--No Finding; Presumption. Findings of fact can only be made on proof; and where a referee fails to find that a partnership had any property, debts, or credits, we must presume, in the absence ■ of the testimony or any admissions in the pleadings, that it had none,</p> <p>B. --- Findings Support Judgment. The findings examined, and held to be sufficient to support the judgment that was rendered thereon.</p>

Error from Cherokee District Court. Action by Lisle against Cheney and others, to restrain defendants from proceeding under the execution issued out of the district court of Cherokee county, in the action wherein Tristam Dunham was plaintiff and Noah W. Weaver and Alice M. Weaver were defendants.

Original Proceedings in Mandamus. Action brought in this court, September 16, 1885, by The . State, against H. J. Harwi, as county clerk of Graham county. The opinion herein, filed at the June, 1887, session of the court, states the object of the action, and the material facts.

Error from Shawnee Superior Court. Action brought by Riee against The Railroad Company, to recover damages alleged to have resulted from an unwarranted criminal prosecution and imprisonment begun and carried on by the defendant against the plaintiff. Trial at the April Term, 1885, and verdict and judgment for plaintiff for $3,000 damages, and for costs. The defendant brings the case here. The material facts appear in the opinion.

Error from, Cowley District Court. Action by Teeters and another against Waite, to recover damages for the conversion of a one-half interest in certain corn. Trial at the April Term, 1885, and judgment for plaintiffs for $179.59 damages, and $215.35 costs. The defendant brings the case here. The opinion states the facts.

Ejectment by Stetson against Freeman. The plaintiff brings here for review the judgment in said action rendered at the August Term, 1885, of the district court of Marshall county.

Error from Leavenworth District Court. Edward Chapman and Sarah W. Chapman were married in September, 1870, at which time the wife owned in her own right the following property: Eighty acres of land adjoining the city of Emporia, which had been laid out as an addition thereto; two lots on the corner of Vermont and Berkeley streets in the city of Lawrence, and lot No. 122 with a house thereon, on Kentucky street in said city; household goods and jewelry, of the value of…

<p> JSrrror from Barber District Court. </p> <p>The case is stated in the opinion.</p>

<p> Error from Wyandotte District Court. </p> <p>The opinion states the case.</p>

Error from Clay District Court. Injunction brought by The School District against Neil. Judgment for the defendant at the May Term, 1885. The opinion states the material facts.

Error from Bourbon District Court. The opinion states the case. Judgment for plaintiff Deeds, at the September Term, 1885. The defendant city brings the case here.

<p>Aeeeal; Alleged Errors, When not Examined. Where a defendant in a criminal action upon an appeal to the supreme court files a record certified by the clerk of the district court to be a record of the evidence only, the supreme court cannot examine and determine the alleged errors occurring upon the trial, presented in the brief filed for the defendant.</p>

Peosecution for a violation of the prohibitory liquor law. From a judgment against him on January 21, 1886, the defendant McNaught appeals. The opinion states the case. John T. Toss, and C. Dana Sayrs, for appellant. 8. B. Bradford, attorney general, and E. A. Austin, for The State.

Error from Osage District Court. The opinion states the nature of the action, and the facts. Judgment for the plaintiff township, at the August Term, 1885. The defendant railroad company brings the case to this court.

Error from Atohison District Court. Action .brought on October 24, 1884, by Robert McCrie against Samuel A. Stoner and Nannie E. Stoner, his wife, to foreclose a mortgage and enforce a first lien on the premises described in the petition, the same being the homestead of the defendants. G. C. Hixon & Co. and Howell, Jewett & Co, were made defendants, they being judgment creditors of the mortgagors, and claiming liens on the premises for improvements thereon.

Error from Johnson District Court. Action brought by Kelly against The Kansas City, Fort Seott & Gulf Railroad Company, to recover damages for personal injuries. Trial by jury; verdict for plaintiff for $4,000; new trial refused. June 16,1885, judgment upon the verdict for plaintiff. The defendant brings the case here. The facts are sufficiently stated in the opinion.

<p> Error from Woodson District Court. </p> <p>Action brought in the district court of Coffey county, by Lathrop & Smith against Thomas Hackett and Margaret A. Hackett, upon a note and mortgage executed by the defendants. All the parties to this action were non-residents of this state. Service was made by publication, and was sufficient in form and substance, but the proof of publication showed that the notice was first published on the 14th day of October, 1880. Judgment was rendered on the 10th day of December, 1880, being twenty-seven days from the date of first publication, as appeared from the proof on file. An order of sale was issued, and the property upon which the mortgage was given was sold at sheriff’s sale on the 23d day of July, 1881, to the plaintiffs. The first notice of sale was published June 23d, 1881. Afterward the plaintiffs asked leave to amend their proof of service by publication, showing that the first publication of the notice was upon the 7th day of October, instead of the 14th, which amendment was allowed by the court. Afterward the cause was duly transferred from Coffey to Woodson county. At the October Term, 1884, the defendants made a motion to vacate the judgment aforesaid, and to set aside the order allowing the proof of the notice of the service by publication to be amended. They introduced in evidence the affidavit of Geo. H. English, who stated that he was an attorney of Margaret A. Hackett, one of the defendants, and who was also plaintiff in an action between her and one Lewis Hammerslough, and that he had a conversation with Gardner Lathrop, one of the plaintiffs, and requested him not to bring action against Hackett until the action of Hackett against Hammerslough should be decided, and although. Lathrop did not at any time refuse to so inform affiant, yet affiant was under the impression that Lathrop would notify him before bringing his action against the defendants. Lathrop stated in his affidavit, introduced in evidence, that he did not remember to have ever given personal notice to defendants or their attorneys of the pendency of the foreclosure suit.</p> <p>The court overruled the motion aforesaid, and adjudged against defendants the costs of this proceeding. They bring the case here.</p>

Error from, Leavenworth District, Court. To -reverse a judgment against them at the April Term, 1885, the plaintiffs, Elizabeth L. Stephens and four others, bring the case here. The opinion contains a sufficient statement of the facts.

Fh'ror from'Marion District Court. Ejectment, brought by Dostei' against Beebe and another. Trial by the court at the June Term, 1885, and judgment for plaintiff. The defendants bring the case to this court. The opinion states the material facts.

<p>Case-Made — Invalid Certificate. A court or a judge has no authority to settle and sign a case for the supreme court, unless it has been made and served within the time fixed by law or legally granted by the court or judge; and a certificate by the judge that the case was “ duly served ” will not overcome a specific recital in the record showing that the case was not served in due time.</p>

M'ror from Atchison District Court. On November 8, 1884, Myron L. Stephens commenced his action against J. C. Dowd, Hiram Yaple and W. M. Stephens, for an accounting and winding-up of the business of J. C. Dowd & Co. Subsequently, Seaton & Lea, W. P. Rounds & Co. and Hill, Clark & Co. filed their interpleas, and there was also pending in the court the case of Hill* Clark & Co. against J. C. Dowd & Co. On June 26, 1885, by consent of all parties the matters pending in all…

M'ror from Marshall District Court. Action brought on May 17, 1884, by Jay Gano against John D. Wells, James 8. Warden, and Thomas Johnson, to dissolve a copartnership existing between Gano and Wells, and for an accounting between them. At the March Term, 1885, the case was tried before the court and a jury. In answer to the following questions, the jury made the following findings, to wit: “1. What was the value of the horse in controversy on the 16th day of May, 1884?

Error from Ellsworth District Court. James Bider and another brought an action against J. O. Briscoe, and on the 29th day of January, 1885, about 10 o’clock in the morning of said day, caused an attachment in said action to be levied upon the following-described property, as the property of the said defendant, to wit: Lots 1 to 14inclusive, • lots 28 to 30 inclusive, lots 58 to 75 inclusive, in Briscoe’s first addition to the town of Ellsworth, Kansas; and lots 76 to 88,…

Error from Shawnee District Court. Judgment for plaintiff Hall at the September Term, 1884, to reverse which the defendant Brooks brings the case here. The material facts are stated in the opinion.

Error from Mitchell District Court. Action brought by Tripp against Broquet, to recover damages arising from the sale of certain sheep.

Error from Smith DistHet Court. Keplevin by Golden against Carson, as sheriff. J udgnient for plaintiff, at the April Term, 1885. The defendant brings the case here. The facts are stated in the opinion.

Ei'ror from, McPherson District Court. Action by Thompson against Post, to recover upon a promissory note. Judgment for defendant, at the May Term, 1885. The plaintiff brings the case here. The opinion states the facts.

Error from Harper District Court. On November 29, 1883, Butts began his action against Privett to obtain the immediate possession of one span of mules, twenty-four head of stock cattle, one standard mower, one horse rake, certain farming implements, consisting of wagons, plows, harrows, etc., and also a quantity of hay in stack, the property being valued at six hundred dollars.

The defendant, Orr Decker, was found guilty by the jury, and sentenced by the court to one year’s imprisonment in the penitentiary, upon a criminal information which reads as follows, (omitting court and title:) “ In the name and by the authority of the state of Kansas, I, George W. Hurd, county attorney within and for said county of Dickinson and state of Kansas, do now here give the said court to understand and be informed that the above-named defendants, James Bottomly…

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in this court, .April 5, 1887. Held: is filed herewith as a part hereof, marked ‘Exhibit A.1” ' Also, on April 5, 1887, other like petitions for writs of habeas corpus were filed in this court, by O. A. Hare, A. H. Wheat, and W. A. Frush, who were then in the custody of the sheriff of Finney county; and also, like petitions- were filed by John W. Knapp, Frank 8.

Error from Elk District Court. Action brought by John Hughes and C. B. Zeek, partners as Hughes & Zeek, against L. C. Wiley, to recover $970 as damages for an alleged breach of a contract for the sale of certain corn and millet by defendant to plaintiffs.

Error from Saline District Court. Charles Holmquist brought an action to recover from Charles A. Kingman and Freeman Kingman the sum of $50, as damages for the conversion of twenty-five thousand hedge plants.

Prosecution for a violation of an ordinance of the City of Miltonvale, by disturbing the peace and quiet of certain persons in said city. Trial before the police judge, conviction, and appeal to the district court. Trial at the October Term, 1886; conviction, and sentence to pay a fine of $10 and costs. The defendant Downing appeals.

Error from Wabaunsee District Court. Action by Higginbotham against Fair, to recover upon two promissory notes. July 13,1885, judgment was rendered for defendant. The plaintiff brings the case here. The opinion states the material facts.

Error from Allen District Court. Action brought by Pettigreio against C. K. Mills, to recover $50 rent of eighty acres of land for the year 1884, and $100 damages for waste committed thereon by defendant while a tenant of plaintiff during that year. The land is the west half of the northeast quarter of section seventeen, township twenty-four, range twenty, situated in Allen county, and it originally belonged to the Leavenworth, Lawrence & Galveston Railroad Company.

Error from Broion District Court. The plaintiffs’ petition reads as follows: “The plaintiffs, complaining of the defendant, allege that they are and for the last five years and more have been husband and wife; that about five years ago the plaintiff, John H. Robertson, became the owner of the west half of the southeast quarter of section 8, town 4, range 17, in Brown county, Kansas, and has ever since been such owner, except that on or about the 22d day of December, 1882, he…

Error from, Wabaunsee District Court„ Action by Lawder against Henderson, to recover damages for his two shepherd dogs, which he alleged to have been killed by the defendant, and to have been worth $300.

<p>1. Appeal — Technical Defect — Valid Undertaking. In an appeal from a judgment rendered by a justice of the peace of Comanche county, which was then unorganized and attached to Barber county for judicial purposes, the justice was referred to in the appeal bond as an officer of Comanche county, instead of being designated as an officer of Comanche township in Barber county. Held, That the technical defect did not prejudice anyone, nor invalidate the undertaking.</p> <p>2. Appeal — No Ground for Dismissal. The mere failure of the sureties upon an appeal bond to make affidavit of their qualifications, where it does not appear that the sureties are insufficient, is not an adequate ground for a dismissal of the appeal.</p>

Error from Rice District Court. Action brought by Ellen Whitt, widow of Andrew Whitt, deceased, and the seven minor children of said decedent., against The Kansas Protective Union, to recover $2,000 and interest upon a certain policy issued by the defendant. Trial by jury at the May Term, 1885, aud verdict for the plaintiffs for $2,000, principal, and $43.32, interest. New trial denied, and j udgment accordingly for the plaintiffs. The defendant brings the case here.

Error from Dickinson District Court. At the October Term, 1884, judgment for plaintiff Higginbotham for $367.29 and costs, against defendant Lowe. He brings the case here. The opinion states the material facts.

Error from Greenwood District Court. Action brought by Mary Johns against The Atchison, Topeka & Santa Fé Railroad, Company, to recover damages for injuries received by her while standing on the railroad company’s station platform at Severy, in Greenwood county, by reason of being struck and thrown down by the company’s agents and servants in removing a trunk from the platform to the baggage-car of a train then standing at the station.