Volume 40 — Kansas Reports

Error from Chase District Court. ACTION by McNee against Pracht, to recover upon two promissory notes. Trial at the April term, 1886, and verdict for plaintiff for $378.50. New trial denied. Judgment in accordance with the verdict; and that $200 of the judgment draw interest from date at the rate of 12 per cent, per annum; that $178.50 thereof draw interest at the rate of 7 per cent, per year from date; and that plaintiff recover the costs of suit.

Error from Washington District Court. The opinion states the nature of the action, and the material facts. At the June term, 1886, the court sustained defendant’s demurrer to plaintiff’s evidence. This ruling plaintiff Cooper brings here for review.

Error from Sedgwick District Court. EepleviN, by The Bank against Latham, to recover the possession of certain cattle on which plaintiff had certain chattel mortgages. 'Trial by the court, at the June term, 1885; findings of fact and conclusions of law in favor of the plaintiff; new trial denied, and judgment that the plaintiff recover of defendant the possession of said last-named cattle, described in “Exhibit A” attached to plaintiff’s petition, or the value thereof, to…

<p> Appeal from, Finney District Court. </p> <p>ProseoutioN for gaming. The opinion states the case.</p>

<p>Criminal Cause — Appeal—Full Transcript. Where an appeal is taken in a criminal canse to the snpreme court from a judgment rendered against a defendant in a district court, the certificate to the transcript filed must show that the record is a true and complete transcript of all the proceedings had in the cause; otherwise, the decision of that court cannot be reviewed by the supreme court.</p>

<p> Appeal from Morris District Court. </p> <p>PROSECUTION for murder. The opinion states the case.</p>

Error from Jefferson District Court. REPLEVIN. Judgment for plaintiff McCarthy on October 22, 1886. The defendant Davis, as sheriff, brings the case here. The opinion states the facts.

Error from Stafford District Court. Action brought in the Stafford district court, to enjoin .the defendant board of county commissioners from considering a certain petition filed with the county clerk praying for an election for the removal and relocation of the county seat of Stafford county. A temporary injunction was granted by the district judge.

Original Proceedings in Habeas Corpus. PETITION, filed in this court on August 9, 1888; the opinion, filed at the session of the court in October, states the material facts.

Error from Greenwood District Court. Actiok by Applegate against Hill, to recover damages for the death of a certain mule colt. Judgment for the plaintiff, at the lytay term, 1886. The defendant brings the case here. The opinion states the facts.

Error from Allen District Court. MotioN to discharge from arrest and imprisonment, overruled on May 5, 1888. The defendant Heath brings this ruling here for review. The opinion contains a sufficient statement of the facts.

<p>1. Attachment — Mortgagee May Interplead. Where real estate is attached, the holder of a mortgage thereon may interplead in the action under sec. 45a, ch. 80, Comp. Laws 1879.</p> <p>2.-Mutual Mistake; Reformation of Mortgage. Where a defendant is served by publication only and makes default, such inter-pleader may ask in his interplea that a mortgage which purports to be a lien upon a different piece of land, may be reformed on the ground of mutual mistake of the defendant and himself in the description, so that it may be a lien upon the property attached, as was intended by both parties to the mortgage.</p> <p>3.-Evidence. In such an action it is not indispensable that the testimony of the defendant be offered at the trial; it may be shown by other evidence that he seemed to believe, and acted as if, the description given in the mortgage was that of the land attached.</p> <p>4. Equity — Reformation of Mortgage — Degree of Proof . Before a mortgage can be reformed on parol testimony alone, the court must be satisfied beyond a reasonable doubt of a mutual mistake of both parties to the mortgage, and that they both intended to and believed they had correctly described, in the mortgage, the land in controversy.</p> <p>5.-Reformation — Sufficient Evidence. The evidence in this action is sufficient to compel a reformation of the mortgage.</p>

Error from, Barber District Cou/rt. Proceeding commenced by Frank Beynolds to amerce Charles D. Nelson, as sheriff of Barber county. Hearing by the court, at the October term, 1886, and judgment for the defendant. Plaintiff brings the case here for review.

Fhror from, Barber District Court. PeosecutioN for perjury. At the June term, 1888, the defendant, George W. Ayer, was tried, convicted, and sentenced to imprisonment in the state penitentiary for one year. He appeals. The opinion states the material facts.

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

PkosecutioN for the violation of ordinances Nos. 459 and 494 of the city of Topeka, prohibiting the sale of intoxicating liquors within said city. The defendant Zufall was tried and convicted in the police court. He appealed to the district court, and was there tried and found guilty, and on January 5, 1888, was sentenced to pay a fine of $100, and the costs. He appeals. The material facts appear in the opinion.

Motions for Rehearing. The defendants in error, plaintiffs below, filed motions for a hearing, which the court overruled at its session in October, 1888. The facts are stated in TJ. P. Ely. Co. v. Hutchinson, 39 Kas. 485, et seq., and in the opinion herein.

Erroi' from Marshall District Court. The opinion contains a sufficient statement of the case. Judgment for the plaintiff McLeod, at the December term, 1886. The defendant Company brings the case to this court.

Error from Lyon District Court. ACTION brought by Moon against March, to recover the possession of a certain lot in the city of Emporia. Trial by the court, at the February term, 18.87; special findings of fact and conclusions of law, and judgment thereon for the defendant. Plaintiff brings the case here.

<p>1. New Tkiaií — Motion, Overruled — No Copy in Record. Where tl.e record recites that a motion was made for a new trial and overruled, but does not contain a copy, nor show upon what ground it was based, this court cannot say whether the district court erred in overruling the motion; and therefore all questions occurring at the trial are excluded from consideration in this court.</p> <p>2. ---- The petition filed in this case was sufficient to sustain the judgment.</p>

Error from Rooks District Court. The opinion states tbe case. Judgment for the plaintiffs Hopkins & Nicodemus, at the September term, 1885. The defendant Martin brings the case here.

Origmal Proceeding in Mandamus. The petition was filed in this court on April 12, 1888. The opinion, filed at the session of the court in October, states the material facts.

Error from Shawnee District Court. Order granting a temporary injunction, brought here for review. The material facts appear in. the opinion.

Error from, Shawnee Superior Court. Ejectment. Judgment for plaintiffs Sehnur and another, at the January term, 1886. The defendant Ciarle brings the case here.

Error from Butler District Court. ActioN brought by the plaintiff in error, to recover damages which he alleged he had sustained from the uttering and publishing of a letter concerning him by the defendant. Plaintiff’s petition was filed November 11,1885, and defendant filed his answer on the 8th day of December following, and plaintiff filed a reply thereto.

Error from Bourbon District Court. ON June 1, 1886, Elizabeth McElroy, Lizzie McElroy, Emma Land, and Mary McElroy; also Henry McElroy, Hilda McElroy, Moses McElroy, 'William McElroy and Ethal McElroy, infants and minors, by their next friend Elizabeth McElroy filed their petition against Charles H. Morley and the Crain & Nelson Hardware Company, alleging— “That they are the owners in common of the north half of lot two, block sixty-nine, excepting a triangle of twenty feet…

Error from Haney District Court. Action by Washer & White against V E. Bond and another, to recover upon a promissory note for $1,000, made by defendants on April 4, 1884, due in four months after date, with interest, payable to the order of J. Gr. French, and by him indorsed and delivered to plaintiffs — said note having a credit thereon of $87.77; and also to foreclose a real-estate mortgage given by the defendants to secure the payment of said note.

PROSECUTION for the unlawful sal.e of intoxicating liquor. At the March term, 1888, the defendant Coulter was tried, found guilty, and sentenced. He appeals. The opinion states the material facts.

Error from Harvey District Court. The County Board of Harvey County brought an action in ejectment against plaintiffs in error for a tract of land described as “ Block A ” in Sedgwick City, Kansas. It is claimed by the plaintiff Board that this tract was dedicated for a public park; the defendant Hurd claims title to a part of it by deed from the town company of Sedgwick City, and defendant Massey claims part of it by conveyance from Hurd to himself.

Original Proceedings in Quo Warranto. On May 16, 1887, The State of Kansas, upon the relation of Hon..

Error from Wabaunsee District Comity. Action to recover damages for malicious prosecution. Trial at the June term, 1886, and judgment for the defeud-ant Perney. The plaintiff Sweeney brings the case to this court. The opinion states the facts.

PeoseoutioN for robbery. Trial, conviction and sentence at the February term, 1888. The defendant Segermond appeals. The opinion states the material facts.

This case is an appeal by John J. Stevens from an order of the judge of the district couri; of Kingman county, made at chambers, on March 24, 1888, adjudging the appellant to be guilty of a contempt in violating a peremptory writ of mandamus, and that he pay a fine of $10 and the costs of suit, and be committed to the county jail until such fine and costs be paid. The material facts are stated in the opinion.

Error from Barber District Court. ON April 8, 1887, H. D. Records, as assignee for the benefit of the creditors of D. F. Swank, on tbe hearing of his motion before the Hon. C. W. Ellis, judge of the district court of Barber county, at chambers, in the city of Medicine Lodge, obtained an order for the dissolution of plaintiff's attachment theretofore issued out of the district court of said county, and levied upon certain goods, chattels and real estate of said D. F. Swank in…

<p> Error from Osage District Court. </p> <p>ACTION to recover damages for personal injuries. Judgment for plaintiff Whittaker for $5,000. The defendant Company brings the case here. The opinion states the material facts.</p>

Err07' from Bourbon District Court. This was a condemnation proceeding, begun on March 7, 1885, by Eveline Wier, to appraise the value of certain lands appropriated in 1881 by the St. Louis, Fort Scott & Wichita Railroad Company, for a right-of-way, depot grounds and stock yards, and to assess the damages to her adjacent land, resulting from the construction of the railroad at that time.

Error from Leavenworth Eistrict Court. ACTION brought by Lemhe to recover judgment against the plaintiffs in error for $5,262, and costs, which the plaintiff claimed was due her from the defendants, plaintiffs in error, upon a policy of insurance issued by the Kaw Life Association, to Augustus Lemke, in Leavenworth county, and also upon the bond executed by the defendants other than the Kaw Life Association, in the sum of $50,000, to the state of Kansas, for the faithful…

<p> Appeal from Barton District Court. </p> <p>The opinion states the case.</p>

<p>Error from Chautauqua District Court,</p> <p>ACTION to compel the specific performance of a written contract for the conveyance of certain real eastate. Judgment for the plaintiff Morrison, at the June term, 1886. The defendants Avery and three others, bring the case here. The opinion states the material facts.</p>

Error from Nemaha District Court. The opinion states the nature of the action, and the material facts. Judgment for the defendants Williams and another, at the September term, 1886. The plaintiff Martin brings the case to this court.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in this court by W. J. Price and H. A. W. Corfield, county commissioners of Kearney county, and J. H. Waterman, county clerk of said county. The facts sufficiently appear in the opinion herein, filed at the session of the court in November, 1888.

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

Error from Shawnee Eistriot Court. ACTION upon certain promissory notes, and to foreclose a mortgage given to secure their payment. Judgment for plaintiff Edson, at the January term, 1887. The defendants, Case and wife, bring the case here. The material facts, are stated in the opinion.

Error from Phillips District Court. This was an action brought in the district court of Phillips county by J. D. Matteson, under §8 of the act relating to mortgages, against F. M. Perldns, to recover $100 for the alleged failure on the part of Perkins, on demand, to enter or cause to be entered of record the satisfaction of a certain mortgage, previously executed by Matteson and wife to Perkins, and recorded in the office of the register of deeds of Phillips county, and paid.

Error from Wabaunsee District Court. This was an action to foreclose a mechanics’ lien on real estate in Alma, Wabaunsee county. The petition alleged substantially that Robert Pierce, Frank Colpetzer and M. T. Green were partners doing business under the firm-name of The Chicago Lumber Company, and that between the 25th day of May, 1885, and the 3d day of June, 1885, they furnished lumber and building material, under a contract with Ij.

Error from Sumner District Court. PROSECUTION for a violation of a certain ordinance of the city of Wellington. At the September term, 1887, of the district court, Isaac Anderson was found guilty, and fined $10 and the costs of the prosecution, and was ordered to be committed to jail until the fine and costs were paid. He appeals. The material facts are set forth in the opinion.

<p> Error from Wabaunsee District Court. </p> <p>The opinion states the nature of the action, and the material facts. Trial at the June term, 1886, and judgment for plaintiff, Fair, for $80 damages, and costs. The defendant, Cavender, brings the case here.</p>

Error from Cloud District Court. ACTION by Moyer against The Railway Company, to recover for freight burned in the depot of the defendant company. Trial at the November term, 1885, and judgment for plaintiff for $313.80. The Company brings the case here.

Error from Saline District Court. The opinion states the nature of the action, and the facts. At the May term, 1886, the court sustained defendant’s demurrer to plaintiff’s petition, and rendered judgment against plaintiff for costs. To reverse this ruling and judgment, Davis brings the case here.

<p>1. New Tkial — Motion, Not Filed in Time. If a party, desiring a new trial, sends his written motion therefor, properly drawn up, signed and inclosed in a letter to the post-office where the clerk of the district court receives his mail, and such letter is not received at the post-office until 7 o’clock p.m. of the last day upon which the motion can be filed in time, and the clerk does not call for it or receive it until the next day, and then files it the next day, suoh motion is not filed in time; and in the absence of any other showing it does not appear that the party sending the motion by mail was unavoidably prevented from filing it within time.</p> <p>2. Ageni — Verification. The agent of a plaintiff, having authority from his .principal, may verify, under oath, the complaint filed in an action of forcible detainer.</p>

<p>BaiiiKOAD Company, Consolidated with Other Companies, Ceases to JSxist. Where a railroad company is consolidated with other railroad companies nnder a new name, it ceases to exist as a corporation, and an action brought by or against such railroad company before its consolidation cannot afterward be prosecuted by or against it or in its original name.</p>

Error from Franklin District Court. ActioN by F. A. Waddle to enforce the individual liability of the defendants as stockholders of the Pomona Creamery Company. At the April term, 1887, the trial was had without a jury, and the court at the request of the parties made the following findings of fact and conclusions of law: “1.

Error from Shawnee District Court. The agreed statement of facts and the findings of the court show conclusively the following: In 1877 W. C. Mead purchased several tracts of land, all joining, and afterward, in 1877, be conveyed thirty acres out of the southeast corner and ten acres on the north side to his son, William Mead, who afterward resided on the ten-acre tract until 1881, when he reconveyed to his father the ten-acre tract, and moved upon the thirty-acre tract,…

Error from Osage District Court. ActioN by Margaret LarJdn, a minor, by ber next friend, Peter Larkin, against The City of Osage Oity and Asher Adams, to recover damages for personal injuries. On the 24th day of August, 1883, plaintiff received the injury for which this action was brought.

<p>SohooIj Land — Purchase-Money—Default—Notice. In order to forfeit the rights and interest of the purchaser of school lands, on account of his default to pay annual interest, or the balance of the purchase-money when the same becomes due, the notice must be given and served in accordance with the provisions of § 2, ch. 161, Laws of 1879, (Comp. Laws of 1885, ch. 92, §219.)</p>

Motion for Rehearing, The defendant in error filed a motion for a rehearing, which the court allowed at its session in December, 1888, and then filed the opinion, infra. The facts are sufficiently stated in Grocery Co. v. Records, ante, pp. 119, et seq.

Error from Miami District Court. ON March 7, 1885, Daniel Hines executed and delivered to William and Joseph Hines, defendants in error, a chattel mortgage upon property described as follows: “ Forty acres of growing flax, and forty-five acres of growing corn, on the southwest quarter of section 7, township 19, range 22, in Miami county.” The consideration therein being to secure said William and Joseph Hines from loss by reason of their in-dorsement of two notes aggregating…

The facts are stated in Long v. Hines, ante, p. 216; which case was decided at the session of the court in January, 1888. The defendants in error filed a motion for a rehearing, which the court overruled at its session in December, 1888, and then filed the opinion, infra.

Error from Greenwood District Court. This was an action brought in the district court of Greenwood county, by James DeJarnette against M. J. Verner, as principal, and 0. E. Ladd, W. F. Osborn, W. W. Morris, and T. Holverson, as sureties on a sheriff’s bond.

Error from Sedgwick District Court. Action brought by Thistlewood against Hughes and two others, to compel the delivery of a certain deed. Trial by the court at the March term, 1887, and judgment for the plaintiff. The defendants bring the case to this court.. The'opinion states the facts.

Error from Chase Distriet Court. EJECTMENT. Judgment for defendant Sims, at the December term, 1886. The plaintiff Edwards brings the case to this court. The opinion states the facts.

Error from Rooks District Court. ON December 7, 1885, I. Weil & Co. obtained a judgment in their favor against Charles Peterson for $249.80, and costs. Afterward, an abstract of the judgment was duly filed in the office of the clerk of the district court in Rooks county.

<p> Error from Shawnee District Court. </p> <p>Action brought by Anna C. Barney against Guilford Dudley and William C. Eioing, to recover the value of an insurance policy on the life of her husband, John W. Barney, and payable to her at his death, which policy she alleged that the defendants had unlawfully and wrongfully converted to their own use. Trial at the April term, 1885. The jury returned a verdict for the plaintiff for $1,500, and made special findings of fact. Thereupon the defendants filed their motion for a new trial, for the following reasons:</p> <p>“1. Irregularity in the proceedings of the court, the jury and the plaintiff, by which defendants were prevented from having a fair trial.</p> <p>“2. Misconduct of the jury, and of the plaintiff and her attorney.</p> <p>“3. Accideut and surprise which ordinary prudence could not have guarded against.</p> <p>“ 4. Excessive damages, appearing to have been given under the influence of passion and prejudice.</p> <p>“ 5. Error in the amount of recovery, it being too large.</p> <p>“ 6. The verdict is not sustained by sufficient evidence, aud is contrary to law.</p> <p>“ 7. Newly-discovered evidence material for the defendants, which they could not with ordinary and reasonable diligence have discovered and produced on the trial.</p> <p>“ 8. Error of law occurring at the trial, and excepted to by the defendants.”</p> <p>On March 31, 1886, the court sustained the motion. To obtain a reversal of the order granting the defendants a new trial, the plaintiff brings the case to this court.</p>

Error from, Sumner District Court. ON April 3, 1886, judgment was rendered for the defendant City. The plaintiff Switzer brings the case here. The material facts are stated in the opinion.

Error from Miami District Court. Action to recover upon a fire-insurance policy. Trial at the February term, 1887, and verdict for the defendant Company. The court set aside the verdict and granted a new trial. This order the defendant brings here for review.

PROSECUTION for murder in the first degree. At the August term, 1887, the defendant, Frank P. Gould, was tried, found guilty of murder in the second degree, denied a new trial, and sentenced to imprisonment in. the state penitentiary for twenty years. He appeals. The material facts are stated in the opinion.

INFORMATION for burglary aud grand larceny. From a conviction and sentence at the May term, 1888, the defendants Hiram M. Johnson, Isaiah Johnson, Martin Thomas, and Henry Kreinhop, appeal. The facts sufficiently appear in the opinion.

Frror from, Pottawatomie Pistrict Coilrt. Action brought by Constantine Umseheid and others, who sued for themselves and the persons composing the Catholic church and congregation at Rock Creek, in Pottawatomie county, against Louis M. Fink and two others, to cancel a certain deed executed by Louis M. Fink to Frank Winter, and to declare the land to be held by said Fink in trust for the use and benefit of the Catholic church of Rock Creek, in said county.

Davis District Court. PROSECUTION upon the charge of being the keeper of a place where intoxicating liquors are unlawfully kept and stored in violation of an ordinance of Junction City. Judgment for defendant Keeffe, at the March term, 1888. The City appeals. The opinion states the facts.

Error from Glay District Court. ActioN brought by John Getty and Arthur Lakin, partners as John Getty da Co., against the C. JR. Barnes Milling Company, a corporation, to recover the purchase-price of two car-loads of flour. At the May term, 1886, the court sustained a demurrer to plaintiffs’ evidence; new trial denied; judgment against plaintiffs for costs. They bring the case here. The material facts appear in the opinion.

PROSECUTION for murder. From a judgment against him at the February term, 1888, the defendant, Patrick Cleary, appeals. The opinion states the material facts.

Error from Osage District Court. On the 28th day of May, 1886, Andrew Larson filed his petition against the Ottawa, Osage City & Council Grove Railroad Company, in the district court of Osage county.

The opinion states the nature of the prosecution, and the material facts. On April 20, 1888, the defendant, Hugh H. Fry, was sentenced to imprisonment in the state penitentiary for one year. He appeals.

At the November term, 1886, of the district court of Allen county, in an action in the nature of ejectment, plaintiff Cox recovered a judgment against defendant Lamblin, who brings the case here.

Original Proceedings in Quo Warranto. Two actions brought in this court on January 17,1888, by The State, on the relation of the attorney general, to determine whether the county of Wallace is organized, or not. The facts are sufficiently stated in the opinion.

Original Proceeding in Habeas Corpus. PETITION for a writ of habeas corpus, filed in this court on October 13, 1888, by J. A. Heath, who alleged that be was unlawfully imprisoned by D. D. Britton, sheriff of Allen county. The facts are stated in the opinion herein, filed at the session of the court in December, 1888.

Error from Saline District Court. At the-Hecember term, 1887, of the district court of Saline county, the grand jury found and returned an indictment, consisting of two counts, against J. S. Hall. In the first count he was charged, in' connection with one Hannah E. Weller, with forging and counterfeiting a warranty deed, on or about September 1, 1886, at Saline county, under §114, subdivision 1 of the crimes act. The second count charged Hall alone with the offense.

<p> Error from Franklin District Court. </p> <p>Ejectment, by Sheldon against Donohoe. Judgment for defendant, at the January term, 1887. The plaintiff brings the case here. The material facts appear in the opinion.</p>

Error from Lyon District Court. EjectmeNT, by Blcmchard and others against Hatcher. Judgment for defendant, at the May term, 1887. The plaintiffs bring the case here. The opinion states the facts.

Error from Atchison District Court. APPLICATION for an injunction to restrain the defendants from placing a certain paving and curbing tax which had been assessed against the property of the plaintiff in error, upon the tax-rolls of the county, and from collecting the same, and from issuing bonds therefor.

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

<p> Appeal from Scoit District Court. </p> <p>Assault with intent to kill. The opinion states the case.</p>

Error from Leavenworth District Court. The opinion states the nature of the action, and the material facts. Judgment for the defendant Burrows, at the April term, 1887. The plaintiff company brings the case here.

Error from Barton District Court. A. O. Lee brought this action against John Wonsettler to recover the sum of $3,490. In his petition he stated, in substance, that he made a parol agreement with Wonsettler by which they were to jointly engage in raising stock and grain. Wonsettler was tofurnish the land necessary for carrying on the business of farming and raising feed, and also teams, stock, farming implements and necessary machinery to do the work.

<p>New Tbxax., Refused — Discretion of Court — Ruling, Not Reversed. The application for a continuance of the hearing on a motion for a new trial is addressed to the discretion of the trial court, and unless it plainly appears that there has been an abuse of such discretion by a refusal to grant it, this court will not reverse the ruling.</p>

JEkror from Douglas District Court. The opinion states the case. Judgment for defendant West, at the February term, 1887. The plaintiff Jennings brings the case to this court.

Error from Harvey District Court. - ActioN brought by Hall against Hurd, to recover $100 as penalty for refusing, on demand, to discharge of record a chattel mortgage given by the plaintiff on or about April 1,1882.

PPror from Washington District ■ Court. The opinion states the nature of the action, and the material facts. The defendant Bank demurred to plaintiff’s petition upon the ground that it did not state facts sufficient to constitute a cause of action in favor of plaintiff, and against it. This demurrer the court sustained at the June term, 1887. Brockmeyer brings this ruling here for review.

Error from Anderson District Court. ACTION to quiet title. Judgment for plaintiffs, on March 30,1887. The defendant Hoffman brings the case here. The opinion states the facts.

Error from Rioe District Court. IN May, 1886, James H. Adams brought this proceeding in the district court of Eice county against W. H. Wolfe, who was then probate judge of Eice county, to compel him to approve an appeal bond tendered by Adams for the purpose of obtaining an appeal from an order made by the probate judge, and to transmit to the clerk of the district court a transcript of all the records, papers and proceedings pertaining to the matter in which the appeal was…

Error from, Rice District Court. ActioN brought by Daniel McLaughlin and two others, partners as McLaughlin Bros., against George B. Doane, and Freeman Dennis, upon a promissory note executed in 1881, in Nova Scotia, for $4,000. The plaintiffs and defendant Freeman Dennis were residents of Nova Scotia, and they continue to reside there as subjects of Great Britain.

M'ror from Marion District Court. ACTION to recover rent. Judgment for the defendant, at the March term, 1887. The plaintiff Scully brings the case here. The material facts are stated in the opinion.

Error from Atchison District Court. This was an action brought in the district court of Atchi-son county, by John Campbell, Gilbert Campbell, Wesley Cummings, L. A. King, and E. A. Taggart,• partners as Cummings Hardware Company, against Solomon R. Washer and Churchill J. White, partners as Washer & White, and S. R. Washer, to recover on a certain bond.

Error from Anderson District Court. The opinion contains a statement of the facts. Judgment for the plaintiff Merrill, at the September term, 1886. The defendant Railway Company brings the case to this court.

Original Proceeding in Mandamus. PETITION filed in this court on June 15,1887. The opinion herein, filed at the session of the court in December, 1888, states'the material facts.

Error from Sedgwick District Court ActioN brought by Woodman against English and another, to recover the possession of lot 59, on Court street, in the city of Wichita. Trial at the May term, 1887, and judgment for the plaintiff. The defendants bring the case here. •

Error from Atchison District Court. The opinion states the case. Judgment for the defendants, on June 3, 1887. The plaintiff Greenawalt brings the case to this court.

Error from Johnson District Court. On the 20th day of September, 1886, J. D. Randall filed his petition against The Atchison, Topeha & Santa Fé Railroad Company, in the district court of Johnson county, in the words and figures following, to wit (omitting caption): “ 1.

Error from, Shawnee District Court. ACTION brought by the defendants in error to recover on a promissory note of $200 against the plaintiff in error. At the commencement of the action, an affidavit for attachment was filed, and an order of attachment issued, which was levied upon lots numbers 465 and 467, on Kansas avenue, South Topeka, as the property of the plaintiff in error.

Error from Atchison District Court. George Walz brought this action against The Atchison, Topeha & Santa Fé Railroad Company, and stated in his petition that on August 2,1886, he was passing along a highway near the city of Atchison with a threshing outfit, composed of a traction engine, tank, separator, and stacker, all- attached together, and that he approached a crossing of the defendant’s road, when he stopped to ascertain whether he could safely cross the railroad, and…

Error from Franklin District Court. This was an action brought by Mary E. Stewart in the district court of Franklin county, against Frank A. Baker, to recover damages for an alleged breach of certain covenants contained in a general warranty deed executed by Baker and wife to the plaintiff for certain lands situated in that county. Trial at the October term, 1886. A jury was waived, and the case was submitted to the court upon the following agreed statement of facts : “1.

ACTION brought before a justice of the peace of Butler county by Sanders against The Pailway Company, to recover $207.50 damages on account of property destroyed by fire occasioned by the alleged negligence of the defendant. Judgment by default for the plaintiff • defendant appealed to the district court of said county. At the June term, 1887, the court sustained the motion filed by plaintiff to dismiss the appeal. The defendant company brings the case here.

Original Proceeding in Mandamus. PETITION filed in this court on July 18, 1888; amended and supplemental petition filed in September following. The material facts appear in the opinion herein, filed at the session of the court in December, 1888.

Original Proceedings in Quo Warranto. Petition filed in this court, on April 28, 1888. The facts are stated in the opinion herein, filed at the session of the court in January, 1889.

PROSECUTION for obtaining money under false pretenses. At the May tei'm, 1888, the defendant Palmer was found guilty, and sentenced to two years in the penitentiary. He appeals. The opinion states the facts.

<p> Original Proceedings in Quo Warranto. </p> <p>The opinion, filed on January 5, 1889, states the case.</p>

At the June term, 1888, the defendants, Child and Bowman, were convicted and sentenced to the penitentiary — the former for three years, and the latter for five years. They appeal. The opinion contains a sufficient statement of the case.

Error from Franklin District Court. PROCEEDING to reverse the action of the district court of Franklin county in setting aside the confirmation and sale of certain lands sold by the sheriff of that county, and in allowing him to amend his return. J. A. Devalley obtained a judgment against Joseph Adams before a justice of the peace of Franklin county, and on the 24th day of June, 1887, filed an abstract of such judgment in the district court of Franklin county.

<p> Error from Neosho District Oourt. </p> <p>The case is sufficiently stated in the opinion.</p>

<p> Error from Shawnee District Court. </p> <p>BepleviN, by Lane against Meyer Bros, and others. Judgment for the plaintiff, at the January term, 1887. The defendants bring the case to this court. The facts sufficiently appear in the opinion.</p>

Error from Shawnee District Court. This was an action commenced in the district court of Shawnee county on February 10, 1887, by John G. Snodgrass, against Jemiette A. Snodgrass, who were husband and wife, for a divorce, on the ground of extreme cruelty and gross neglect of duty, and for an equitable division of the property.

M'ror from, Harper District Court. RepleyiN, by Duncan against The Raihoay Company. Judgment for plaintiff, at the January term, 1887. The defendant company brings the case here. The opinion states the facts.

Eri'or from Brown District Court. The opinion states the case. Judgment for the plaintiff for $461.31, including interest, and costs. The defendant Guttermann brings the case to this court.

<p>Evidence Sustains Judgment. The evidence in this case examined, and held to be sufficient to sustain the verdict and judgment rendered in the court below.</p>

<p>1. Paetneeship — Authority of Partner — Assignment. One partner has no authority to make a general assignment of the firm property for the benefit of the creditors of the partnership without the assent of his copartners.</p> <p>2.-Assignment by Surviving Partner. A surviving partner may make a general assignment of the partnership property for the benefit of the creditors of the firm, in the absence of any statute prescribing the manner of closing up the partnership estate.</p> <p>3.-Settlement of Partnership Estates'. Article 2, chapter 37, of the Compiled Laws of 1885, provides for the winding-up and settlement of partnership estates, and such provision precludes the settlement of partnership estates in any other manner.</p>

Error from, Rice District Court. ACTION by The Wilcox & White Organ Company against Lasley, to recover the possession of an organ. Trial by the court at the May term, 1887, and judgment for the defendant. The plaintiff company brings the case here. The facts appear in the opinion.

Error from Republic District Court. At the October term, 1886, this case was tried before the court and a jury, and the jury made the following findings of fact, to wit: “1. Did Isaac MeClun have any notes turned over to him, or left with him, on or after the first day of April, 1881, in which the above-named plaintiff owned an interest? Ans.: Yes. “2. If you answer the above in the affirmative, what interest did the above-named plaintiff have in said notes? A. One-half. “3.

Original Proceeding in Habeas Coipus. ON December 5, 1887, August Schurman and William F. Ringle were arrested upon a warrant issued by a justice of the peace of Kearney township, then an unorganized county, attached to Hamilton county for judicial purposes, and it was based on a complaint made by the county attorney of Hamilton county, which set out the same charge as is contained in the information hereinafter quoted.

Error from Washington District Court. Action by The State against Snyder and five others, to enforce a judgment lien against certain premises. Judgment for the plaintiff, at the June terra, 1886. The defendants bring the case here.

Error from, Greenwood District Court. Leidigh, RichardsoN & Co. filed their bill of particulars in a justice’s court, claiming a judgment against A. Bassett, plaintiff in error, for $91.73, with interest.

Eri'or from Shawnee Superior Court. This was au action brought in the superior court of Shawnee county, by John W. Hartley against Viator Costa, to recover $433.75, with interest alleged to be due on a certain contract, and also to foreclose a mortgage executed to secure the fulfillment of such contract.

Original Proceedings in Mandamus. On April 6, 1888, two actions were commenced in this court against the superintendent of insurance, one by The Dxoeding-House Insurance Company, and the other by The Western Home Insurance Company, to compel the superintendent to issue certificates of authority to the companies ^to do a general insurance business in the state of Kansas for the year commencing March 1, 1888.

Error from Lyon District court. ACTION brought by E. Nellie Titsworth, to recover $2,000, the amount of a benefit certificate issued by the Ancient Order of United Workmen of Kansas on the life of Wilbur H. Titsworth, deceased. The material facts are stated in the opinion. Trial at the February term, 1887, and judgment for the plaintiff. The defendant brings the case to this court.

Error from Edwards District Court. Mouse brought this action against The City to recover the sum of $5,000 for personal injuries received by him on the night of the 25th of November, 1885, caused by falling into a cellar-way that protruded into a street of said city.

<p>Judgment — Setting Aside — Misconduct of Jury. Where a jury are deliberating upon what their verdict shall be, and during such deliberation a ballot is taken by which it is ascertained that all of the jurors are in favor of the plaintiff, and thereupon each juror marks on a slip of paper the amount he believes the verdict should be, and such marking shows the lowest sum to be $3,000 and the highest $5,000, and it is then proposed by a part of the jury to aggregate such sums and divide by twelve, which is done, and the quotient is found to be $4,400, but no agreement is made that such marking, aggregation and division shall determine their verdict, but afterward such sum is agreed to, and returned as their verdict: Held, Where such verdict has been approved by the trial court, this court will not disturb the judgment.</p>

<p> Original Proceeding in Habeas Corpus. </p> <p>PetitioN filed in this court on November 26, 1888. The facts sufficiently appear in the1 opinion herein, filed on January 5, 1889.</p>

Error from Sedgwick District Court. Ross & Packer appealed from the award of commissioners appointed to condemn a right-of-way for the Leroy & Western Railroad Company through Sedgwick county. The commissioners had awarded them $178.50. Trial at the February term, 1887, and verdict for plaintiffs for $812. New trial denied, and judgment for the plaintiffs. The defendant company brings the case here. The facts are stated in the opinion.

Error from Ottawa District Court. Action to quiet titlé. Judgment for the plain tiff Willis, at the May term, 1887. The defendants, Vining and others, bring the case to this court. The material facts are stated in the opinion.

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

PROSECUTION for the violation of a city ordinance. From, a judgment against him at the May term, 1888, the defendant Berry appeals. The facts appear in the opinion.

Error from Allen, District Court. The opinion states the case. The defendant City asks for the reversal of a judgment against it at the November term, 1886.

<p>1. Pebjubx — Materiality of Oath. In order to constitute perjury, the false oath must be in some material matter.</p> <p>2.-Indictment — Insufficiency. Where the false testimony alleged to have been given is inserted in detail in the indictment charging the defendant with perjury, and it clearly appears from the indictment that the testimony alleged to be false was not material to the issues of the case.in which it was given, and had no tendency whatever to affect or influence the judgment of the court or jury, the indictment is fatally defective.</p>

The facts are stated in Boyd v. Hvffalcer, 39 Kas. 525, and in the opinion herein, filed at the session of the court in February, 1889.

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

<p>Descents and Distribution — Real Estate. D. and wife had a family of six children, three of whom died early, unmarried and without issue. Subsequently the mother, who was the owner of a tract of laud, died intestate, and left surviving her the father and three children. Held, In an action to determine the respective interests of the parties in the estate of the mother, that the surviving father is the sole heir of the children who died prior to the death of the mother, and that the shares which they would have taken had ■ they outlived the mother descended to him, and therefore the three living children are each only entitled to a one-twelfth portion of the estate.</p>

<p>Insanity — Holding Insane Person to Bail. A person found to be insane by the verdict of a jury impaneled in a proceeding had under the act relating to lunatics and habitual drunkards is exempt, under $ 35 of the act, from being held to bail, and from imprisonment on a criminal charge, so long as such verdict is in force and operative.</p>

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

M'ror from Jachson District Court. Charles L. WilsoN, plaintiff in error, was a constable of Holton township, Jackson county, and as such, on an execution issued upon a valid judgment against Charles Sheppard, levied upon one gray horse as his property.

PkosecutioN for the violation of a city ordinance. The defendant Campbell appeals from a judgment against him at the January term,-1887.

Prror from McPherson District Court. The opinion states the case. Judgment for the defendant City and the marshal thereof, at the November term, 1885. The plaintiff Peters brings the case here.

Error from Crawford District Court. ACTION by George W Mosteller and three others, against .Mary A. Mosteller, to determine the rights of the several parties to certain land situate in Crawford county, and for a division thereof. Trial at the April term, 1885, and judgment for the defendant. The plaintiffs bring the case to this court. The facts are stated in the opinion.

The facts are stated in IAfe Association v. Lemke, ante, pp. 142, et seq. The plaintiffs in error filed a motion for a re-bearing, which the court decided at its session in February, 1889, and then filed the opinion, infra.

Error from, Greenwood District Court. Replevin. Judgment for plaintiff at the May term, 1885. The defendant brings the case to this court. The opinion states the facts.

Error from, Reno District Court. The opinion states the case. Judgment for The State, at the January term, 1886. The defendants, Norton and three others, bring the case to this court.

The facts are stated in The State v. Coulter, ante, pp. 87, et seq., wherein the opinion was filed during the session of the court in October, 1888. The appellant filed a motion for a rehearing which the court overruled at its session in February, 1889, and then filed the opinion infra.

The facts are stated in White v. Smith, 39 Kas. 752, et seq. The motion for a rehearing was allowed and the judgment modified at the session of the court in February, 1889.

Error from Barber Distriot Court. The plaintiffs in error bring here for review a certain order made at the November term, 1884, in an action wherein W. W. Cook was plaintiff, and Jesse Boyd and two others were defendants. The material facts are stated in the opinion.

JBJrror from Shawnee District Cowrt. Action brought August 24, 1885, by Fra/nk Mawhinney, who sued in his own right, and Nettie M. Bragunier and Nina F. Bragunier, minors, who sued by their guardian Frank Mawhinney, against Abner Jrl. Doane and another, to recover the amount due on a certain judgment.

The facts sufficiently appear in Mawhinney v. Doane, supra» and in the opinion on the motion for a rehearing, filed at the session of the court in February, 1889.

ActioN by Markin against Priddy, to recover $200 damages alleged to have been caused by defendant’s cattle to plaintiff’s growing corn and grass. On January 14, 1886, the court sustained defendant’s demurrer to plaintiff’s evidence; and on April 27, 1886, overruled plaintiff’s motion for a new trial, and rendered judgment against him for costs. Marldn brought the case to this court, where the judgment of the court below was affirmed, at the June session, 1888.

<p>1. Mobtgage — Payment—Release. Where an abstract of title shows that a mortgage on the land has been recorded, it is then necessary, in order that the abstract shall show a good and complete title, that it shall also show that the mortgage was not only released and discharged of record, but also that the person releasing or discharging the same had full and complete authority of record to do so.</p> <p>2.-Release by Attorney in Fact — Authority. Where a release of a mortgage is signed by the person releasing the same as “ attorney in fact,” and there is nothing of record showing that he had any authority to release the same, such a release is insufficient.</p> <p>S. Case, Modified. The decision in the case of O’Neill v. Douthitt, 39 Kas. 316, and 18 Pac. Rep. 199, reconsidered, and modified.</p>

Error from Cloud District Court. ACTION to quiet title. Judgment for plaintiff Barons, at the August term, 1885. The .defendant Hitt brings the case to this court. The material facts are stated in the opinion.

Error from Harper District Gowt. At the general election held in Harper county on November 8,1887, the plaintiff in error, B. F. Blue, and the defendant in error, Henry Peter, were the opposing and only candidates for the office of register of deeds.

Error from Harper District Court. CONTEST for the office of county clerk of Harper county. Judgment for Patterson, at the June term, 1888. Moss brings the case here. The material facts appear in the opinion.

<p> Original Proceeding in Quo Warranto. </p> <p>The facts sufficiently appear in Moss v. Patterson, supra.</p>

The facts are stated in Lyman v. Stanton, 39 Kas. 443, and in the opinion herein, filed at the session of the court in February, 1889.

Original Action in Quo Warranto. Petition filed January 26,1888; answer filed on February 25, following; amended answers filed on March 19 and May 23, thereafter; reply to amended answers filed on June 7,1888. The opinion herein was filed on March 9, 1889.

Error from Wyandotte District Court. ACTION to quiet title. Judgment for defendants, at the May term, 1887. The plaintiff, McGregor, brings the case here. The opinion states the facts.

<p> Error from Bourbon District Court. </p> <p>At the December term, 1886, the plaintiff Burge recovered a judgment for $150 damages, $35 attorney’s fee, and costs. The defendant Railroad Company brings the case to this court. The opinion (filed December 8,1888) states the material facts.</p>

Ti-ie facts are stated in K. C. Ft. S. & G. Rid. Co. v. Bwge, decided at the session of the court in December, 1888, and in the opinion herein, filed at the session iu May, 1889.

The facts are stated in Hall v. Hurd, ante, pp. 374, et seq., and in the opinion herein. The court sustained the motion for judgment for plaintiff, at its session in May, 1889.

The material facts are stated in Brockmeyer v. National Bank, ante, pp. 376, et seq., and in the opinion herein, filed at the session of the court in April, 1889.

<p> Motion for Rehearing. </p> <p>The material facts are stated in Washer v. Campbell, ante, pp. 398, et seq., and in the opinion herein, filed at the session of the court in April, 1889.</p>

The facts are substantially stated in English v. Woodman, ante, pp. 412, et seq. The plaintiffs in error filed a motion for a rehearing, which the court overruled at its session in April, 1889.

Error from Brown District Court. The material facts are stated in Dowell v. Williams, 33 Kas. 319, and in the opinion, infra. Judgment for Williams, at the January term, 1886. Dowell brings the case to this court.

Error from Sumner District Court. ActioN by Juneau against Stunkle, to recover $192.27 alleged to be due on a bill of lumber and building material sold and delivered by the plaintiff to the defendant. The defendant in his answer pleaded payment, and also a counterclaim for $100, alleged to be an overpayment. Trial at the November term, 1885, and verdict for the defendant for $90.16. New trial denied, and judgment on the verdict for the defendant.

<p>Administbatoe — Sale of Decedent's Land — Delivery of Deed. An administrator haYing sold real estate belonging to the estate, said sale having been confirmed and a deed ordered and executed, and left in the hands of an ex-probate judge, the purchaser at said sale, or his assignee, was entitled to the deed on the payment of the purchase-money, without reference to the intention of the administrator. The administrator could not impose any other condition to the delivery of the deed except the payment of the purchase-money.</p>

Error from Chase District Cowrt. EjectmeNT, brought by Gemmell against Wilson, for the northeast quarter of section 20, township 20, range 9 east, Chase county.

Error from Marion District Court. ACTION to quiet title. Judgment for plaintiffs Weloh and another for $232.43 and costs, at the June term, 1885. The defendant County Board brings the ease to this court. The facts appear in the opinion.