Volume 41 — Kansas Reports

<p>1. Elections and Yotebs — Establishment of High School. Where an election is legally called and held, under chapter 147 of the Laws of 1886, to determine whether a county high school shall be established, and at which a majority of the votes cast upon the proposition are in favor of the same, the proposition will be adopted, although it may not have received a majority of all the votes cast upon other questions submitted at the same election. (Gomm’rs of Marion Go. v. Winkley, 29 Kas. 36.)</p> <p>2. --Failure to Publish Notice. The time when such an election shall be held is not designated in the statute, but is to be fixed by the county commissioners, and public notice of the time and purpose of the eleotion is required to be given by publication in a newspaper of the county, and by posting copies of the notice at each of the polling-places in the county at least ten days before the election. Heidi That the giving of notice substantially in the manner directed by law is a prerequisite of the validity of such an election, and where there is a failure to post notices at any of the polling-places, and a large number of the electors of the county fail to vote upon the proposition, the election will be void.</p>

<p>Cohtbaot — Joint and Several — Action—Judgment against One Defendant. An action was commenced against three persons as a partnership, under the name and style of R. & Co., to recover the price of a barrel of whisky; an answer under oath was filed, denying the partnership, and no reply was filed, or any evidence offered to prove the partnership; the case properly proceeded against the parties as individuals; the facts fixed the liability of one of the persons, and a judgment was rendered against that one individually. Held, Not error; as all contracts and promises are joint and several.</p>

Error from Cloud District Court. Action upon a note, and a mortgage given to secure its payment. The facts are substantially stated in the opinion; The defendant Sanders brings the case here.

Error from Shaionee District Court. The opinion states the case. Judgment for plaintiff Marsh, on June 25, 1888. The defendant McCarthy brings the case here.

<p>Mandamus against State Auditoi — Issue of Certificate of Indebtedness. A peremptory writ of mandamus will not issue against the auditor of state to compel him to issue a certificate of indebtedness, under the provisions of chapter 180, Laws of 1887, where it is shown that one M. claims an interest in said certificate adverse to that of the plaintiff, and that in an action brought by him against the defendant and plaintiff herein the issuance and delivery of said certificate to plaintiff has been enjoined, where it also appears that M. is not made a party or had an opportunity to be heard.</p>

Error from Cowley District Court. The opinion states the case. Judgment for plaintiff Ehret, at the September term, 1886. The defendant Company brings the case to this court.

Error from, Jackson District Court. On the 7th day of October, 1882, G. T. Eubanks filed his petition against A.W. Bentz, claiming judgment for $1,000 on breach of an alleged contract for the sale of a quarter-section of land situate in Jackson county; the same day summons was issued and returned “not found”; on the same day an affidavit for constructive service was filed; thereon foreign personal service was made upon A. W. Bentz; on the 5th day of January, 1883, Eubanks…

<p>Assignment for Benefit of Creditors — Sale of Beal Estate — Conflict of Laws. An insolvent debtor, resident of the state of Illinois, made a general assignment for the benefit of his creditors ; the assignment included real estate owned by the insolvent in this state. The assignor, with the approval of the county court of the county in the state of Illinois in which the assignment was made, sold the land in Kansas. Held, The purchaser at such a sale got no title, the land not having been sold in accordance with the provisions of an act to regulate voluntary assignments for the benefit of creditors, in force in this state, nor by the order or judgment of any court of the state.</p>

M°ror from McPherson District Court. Fitzhugh brought this action against Heitheoker to recover $292.40 with interest, which he alleged was money received by the defendant on certain notes left with him for collection by one Thornton. Plaintiff claimed to be the assignee of Thornton.

<p> Motion for Rehearing. </p> <p>The facts are stated in Heithecker v. Fitzhugh, supra, and in the opinion herein, filed on June 7, 1889.</p>

Error from Wilson District Court. During the winter of 1884 and 1885, James C. Williams, defendant in error, was teaching school in district number 64, Wilson county. Among his pupils were Dayton Sharpe, Philip Starr, J. E. Anderson, E. S. Carter, and John Beaumont jr. On the U7th of January, 1885, they asked the teacher to promise to treat; -he declined to make them any promise, and stepping out of the school-room to get a bucket of coal, they locked him out.

Error from Cowley District Court. Action to recover damages for a railroad right-of-way. Judgment for the plaintiff Baird for $1,150, at the October term, 1886. The defendant Railroad Company brings the case here.

Action to recover damages for a railroad right-of-way. Judgment for $1,600 for the plaintiff Orr, at the October term, 1886, of the district court of Cowley county. The defendant Railroad Company brings the case here.

Action to recover damages for a railroad right-of-way. Judgment for the plaintiff Headrick, at the October term, 1886, of the district court of Cowley county, for $620.66. The defendant Bailroad Company brings the case here.

Original Proceeding in Mandamus. An alternative writ was allowed in this ease on the 25th day of February, 1888, commanding the defendants to issue in payment for a like amount of the capital stock of the Southern Kansas & Panhandle Railroad Company, one hundred and twenty-one bonds of $1,000 each, and one bond of the amount of $300, of the county of Clark, payable to bearer thirty years after date, and bearing interest at the rate of six per cent, per annum, with proper…

Prosecution for the unlawful sale of intoxicating liquors. Trial upon an agreed statement of facts, at the April term, 1888. The defendant William Horacek was found guilty on three counts of the indictment, and adjudged to pay fines amounting to $300,-together with the costs, taxed at $250.85. The defendant William Weidler was found guilty on three counts, and adjudged to pay fines amounting to $300, and costs taxed at $250.85.

Frror from Chase District Cou/rt. The opinion states the nature of the action, and the material facts. Trial at the June term, 1888, and judgment for plaintiff Phans. The defendant Railroad Company brings the case to this court.

<p> Appeal from Kingman District Court. </p> <p>Prosecution under § 155 of the crimes act. The opinion contains a sufficient statement of the facts. Trial at the September term, 1888; conviction, and sentence to imprisonment in the county jail for thirty days, and to pay a fine of $150, and the costs. The defendant Crowder appeals.</p>

Prosecution for murder. The appellants William Furney, Martin Biglin and James Furney were charged with stabbing and killing Calvin Cooper on November 24, 1886, in Morris county. Trial was had in the district court of that county, at the November term, 1887, and the defendants were each convicted of murder in the second degree, and each was sentenced to imprisonment for ten years in the penitentiary of the state. They appeal. The opinion states the material facts.

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

Original Proceeding in Habeas Corpus. Petition filed November 3,1887. The facts are sufficiently stated in the opinion, filed during the session of the court in March, 1889.

Error from McPherson District Court. The opinion states the case. Judgment for costs against plaintiff Elwell, at the February term, 1887. He brings the case here.

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

Original Proceeding in Habeas Corpus. Petition filed in this court on October 8,1888. The facts are sufficiently stated in the opinion, filed at the session of the court in March, 1889.

1Drrorfrom Cheyenne District Court. The opinion states the case. The plaintiffs in error bring here for review the refusal of the court, at the May term, 1887, to dissolve an order of attachment.

Error from, Meade District Court. On the 13th day of May, 1886, plaintiffs in error commenced this action against the defendants in error, alleging that they were in the occupancy of the premises described in their petition, to wit, eighty acres of land adjoining the town-site of Meade Center; that the said land was entered by the town-site company of Meade Center, under and by virtue of the laws of the United States, and that they then were and still remain the sole…

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

Error from Linn District Court. On the 12th of March, 1886, Effie Danforth commenced her action against T. E. Smith and Rebecca S. Smith in the district court of Linn county to recover $600, with interest from the 1st day of November, 1869, and costs, upon a breach of warranty of real estate; trial had on the 17th of December, 1887, before the court without a jury. The court made and filed the following special findings of fact: “1.

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

<p>Costs — Who lAable. Where a proceeding in error from a jnstice of the peace is pending in the district court, and the district court in the particular case has no jurisdiction to review the rulings of the justice of the peace, held, that the district court should dismiss the proceeding in error at the cost of the plaintiff in error.</p>

Error from Osborne District Court. Action by Mary A. Wilhite against E. K. Wilhite, to recover $3,000 as alimony for her support, and the further sum of $200 as suit-money.

Error from Ottawa District Court. Action to recover upon an insurance policy. Judgment for Barnes & Bush, for $945.35, at the May term, 1887. The defendant company brings the case here. The opinion states the facts.

Error from Harper District Court. Action brought by Milton W. Halsey against R. H. Look-wood, to recover $960 and interest, paid by Halsey to Lockwood as commission on an exchange of lands.

Error from Republic District Court. Action to recover rent. Judgment for the defendant Sell, at the January term, 1886. The plaintiff brings the case to this court. The facts are stated in the opinion.

Error from Norton District Court. Replevin by Steele & Walker against Beaker, constable. Judgment for plaintiffs, at the September term, 1887. The defendant brings the case here. The opinion states the facts.

<p>Attobneyand Client — Authority of Attorney — Evidence. Where areal-estate mortgage is foreclosed against the husband and others, and the land is sold to the judgment creditor for more than enough to satisfy the judgment and costs, and the sale is confirmed and a sheriff’s deed' executed to the purchaser, and he sells and conveys the property by warranty deed to^ another, and afterward it is ascertained that the title to the property is in the wife and not in the husband, and an additional judgment is rendered by the court that the surplus money shall be paid to the wife, and that she shall be barred and estopped from ever claiming any right, title or interest in or to the property, and this additional judgment is rendered upon what purports to be an appearance of the wife by an attorney and her consent by such attorney, and the surplus money is paid to such attorney, and over nine years afterward the wife moves the court to vacate this additional judgment upon the ground that such attorney had no authority to appear for her or to represent her in the matter, and she testifies upon the hearing that he had no such authority, and the attorney testifies that he had, and the court overrules the motion, held, not error.</p>

Error from Butler Bistriet Court. Replevin, by Osborne against Kimball. Judgment for defendant, at the May term, 1887. The plaintiff brings the case to this court. The opinion states the case.

Error from Republic District Court. Injunction. Judgment for the plaintiffs Hallowell and Phillips, on January 28,1887. The defendant City brings the case to this court. The opinion states the material facts.

<p>1. Counties — •Boundaries — Valid Statute. Chapter 37, Laws of 1886, entitled “An act to restore or re-create and define the boundaries of the counties of Seward, Stevens and Morton, in the state of Kansas, and repealing all former laws relating to boundaries thereof,” held, to have been legally passed and approved, and therefore valid. (Comm’rs of Leavenworth Go. v. Higginbotham, 17 Kas. 62; The Slate v. Francis, 26 id. 731; Weyand v. Stover, 35 id. 545.)</p> <p>2. New Counties — Organization — Duty of Census-Taker. The object of appointing a census-taker, in the organization of new counties, is to ascertain the truth of the statements contained in the memorial presented to the governor; and in ascertaining the names and ages of the bona fide inhabitants of an unorganized county, the census-taker should confine himself to those who were 6o?ki fide inhabitants in the county at the time of the presentation of the memorial.</p> <p>3. --Defective County Organization, Cured. The defective organization of Stevens county, of August, 1886, was cured by the recognition of the legislature of the organization of that'county, by chapters 133 and 147, Laws of 1887. (The State v. Comm’rs of Pawnee Co., 12 Kas. 426.)</p> <p>Note 1. In the action of The Slate of Kansas, exrel., v.S. S. Prouty, census-taker of Kearney county, at the July session of this court for 1887, it was decided that those persons who were entitled to express their preferences, on the census return, for the temporary county seat of the county, were those only who are legal electors of the county at the time the memorial to the governor was filed. (Journal “M” of the Supreme Court, page 146, July term, 1887.)</p>

Error from Atchison District Court. The opinion states the nature of the action, and the material facts. Trial at the January term, 1885, and judgment for defendant Bull, for costs taxed at $187.10. The plaintiff Wyley brings the case here.

Error from Cloud District Court. Replevin. Judgment for plaintiff Fickel, at the October term, 1885. The defendant Kennett brings the case here. The opinion states the facts.

<p>1. Negotiable Note — Indorsement and Transfei — Error. A negotiable promissory note payable to “order” must be transferred by indorsement of the payee thereof to an innocent holder for value, before maturity, in order to invest the holder with the legal title thereto, and deprive the maker from pleading his equities and defenses; and in an action on. a promissory note, wherein a verified defense is pleaded, alleging that the payee never indorsed the note, and there is some evidence tending to show that it was without consideration, it is error for the trial court to direct the jury to return a verdict for the full amount of the note, with interest, without leaving their seats.</p> <p>2. Juey — Question of Fact. The questions as to whether or not the payee made an indorsement, and whether or not there was no consideration for the note, being controverted questions of fact, should have been left to the jury to determine.</p>

Error from Atchison District Court. On the 28th day of April, 1885, Helen A. Franz, Hannah Lee Barron, Margaret L. Bird, Lorenzo F. Bird, and Anna S. Smith, guardian of Nathaniel S. Bird, an insane person, filed their petition against Charles H. Krebs, as county clerk of Atchison county, state of Kansas, John P. Brown and Frank Bier, partners as Brown & Bier, the city of Atchison, Kansas, and James A. Loper, as county treasurer of Atchison county, state of Kansas, to enjoin…

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

Error from Doniphan District Court. The opinion states the case. Judgment for defendant Means, at the December term, 1883. The plaintiffs bring the case here.

Error from Sedgwieh District Court. This is an action of ejectment, brought by Julia P. Munger against David EE. Baldridge and eleven other defendants, to recover a tract of land described in the petition by metes and bounds and commonly known as “City Park,” situate in the county of Sedgwick.

Error from Atchison District Court. Ejectment. The opinion states the material facts. Judgment for the plaintiff Challiss, at the February term, 1885. The defendants, Jackson and another, bring the case here.

Error from Sumner District Court. Action by the Company against McWhorter, to recover money; attachment on behalf of plaintiff levied on personal property of defendant; dissolved at the February term, 1886. This ruling plaintiff brings here for review. The opinitm states the facts.

Error from Lyon District Court. The opinion states the facts. Judgment for plaintiff Holmes, on January 22, 1887. The defendant brings the case here.

<p> Error from Wabaunsee District Court. </p> <p>On July 2, 1886, William Berroth commenced an action before a justice of tbe peace of Wabaunsee county against Joseph McElvain, in which action the plaintiff filed the following bill of particulars, (omitting title,) to wit:</p> <p>“ Said plaintiff states that the said defendant and the said plaintiff were, during the period of time from April 29, 1885, to August 13, 1885, partners as butchers, and doing as butchers a general partnership business under the firm-name and style of McElvain & Berroth. That the capital, interest and shares of the said parties, plaintiff and defendant, as said partners in said businesss, were equal, and that the debts and liabilities as well as the profits of the said partnership were, by the terms of the contract and articles of partnership made and entered into by said parties, to be equally divided between them. That said partnership commenced on April 29, 1885, and was dissolved by the wish and agreement of said partners on August 13,1885. That at the dissolution of said partnership the capital invested by the said William Berroth in said partnership business, to wit, to the amount of $75, was not by said 'William Berroth withdrawn, but was, at the solicitation and request of the said Joseph B. McElvain, permitted to remain in the business until the ensuing autumn of said year 1885, and that the said defendant Joseph B. McElvain, at the said ensuing autumn of said year 1885, then and ever since refused and ever has refused to return the said amount of $75, so to said defendant intrusted as aforesaid. That said plaintiff has frequently since the said time (to wit, the autumn of 1885) demanded of said defendant said sum, and did demand the same at said time; and in consideration of the use of said capital in the said business by the said Joseph B. McElvain, he, the said Joseph B. McElvain, agreed to continue said business at the former stand of said partnership, to wit, at the city of Alma, county of Wabaunsee, Kansas, and to collect the outstanding credits of the said partnership in company with said Berroth upon a date by the said McElvain and Berroth to be agreed upon, which date was to be before said ensuing autumn. That in conformity with said agreement said parties, in September, 1885, collected on one day the sum of $ —, and applied said sum to the payment of the partnership debts. That a large amount of credits of said partnership at that time and thereafter remained uncollected. That at the date of the dissolution of the partnership the books and memoranda of the concern were left in charge of the said Joseph B. McElvain, he at the time agreeing, in consideration of the use of said Berroth’s capital, as aforesaid, to turn said books over to said Berroth and to hold them open to inspection by said Berroth upon said Berroth’s demand. . That said Berroth has frequently since said dissolution requested and demanded an opportunity to inspect said books, and further, has demanded the said books, which requests and demands the said Joseph B. McElvain has ever refused and denied. That plaintiff cannot proceed to ascertain the amounts of said credits or to collect the same without the privilege of inspecting said books. That plaintiff hath no adequate remedy at law.</p> <p>“ Wherefore, said plaintiff prays that an account be taken of the affairs and of the credits, assets, debts and liabilities of said partnership, and that a settlement of the claims of said partnership between themselves be decreed by this court. That the writ of subpena in this court issue, commanding the said Joseph B. McElvain to appear and answer before this court, and to produce then and there all the books and memoranda in his possession or under his control of the business aforesaid. And plaintiff prays further all proper relief.”</p> <p>Upon this bill of particulars the justice of the peace rendered judgment in favor of the plaintiff and against the defendant for $75 and costs, and the defendant appealed to the district court. No other pleading was ever filed in either the justice’s court or in the district court. On October 19, 1886, the defendant filed the following motion, (omitting title,) to wit:</p> <p>“ Comes now the defendant, and moves the court to dismiss this action on the ground that neither the justice before whom the case was commenced nor this court on appeal has jurisdiction of the subject-matter of this action.”</p> <p>The court below sustained this motion, and dismissed the plaintiff’s action at his cost; and to reverse this ruling of the district court, the plaintiff, as plaintiff in error, brings the case to this court.</p>

Original Proceeding in Habeas Corpus. Petition filed in this court on January 5,1889; the opinion, filed at the session of the court in April, states the case.

Original Proceeding in Habeas Corpus. On November 7,1888, N. R. Waterman and E. D. Waterman, partners as Waterman Bros., commenced their action against Frank Farr in the district court of Lincoln county, to recover the possession of two mares, one black and the other of light-roan color; and also of certain other personal property.

Error from Saline District Court. Replevin, to recover a two-year-old bull and a cow. Judgment for the plaintiff Head, at the May term, 1886. The defendants bring the case to this court. The material facts appear in the opinion.

Error from Lyon District Court. Replevin for a horse, harness, and phaeton. The following is the petition that was filed : “State op Kansas, Lyon County, in the District Court.— Thomas H. Williams vs. J. H. Wilhite, Sheriff of Lyon County, Kansas.— Plaintiff for his cause of action shows to the court that he is the owner of the following-described personal property, to wit: One chestnut-colored gelding about seven years old, one low-top buggy or phaeton, one single harness.

Appeal from Franklin District Court. The opinion states the case. From a conviction at the April term, 1887, the defendant Peterson, a barber, appeals.

<p>Summons, Defeetive — Not Set Aside — Laches. Wherein a summons issued on a case settled for the supreme court, the names of the parties, “Patmor” and “Rombauer,” were spelled “Palmer” and “ Rambauer,” respectively, but the summons was correct in every other respect, and the errors were caused by no fault of plaintiff in error or his attorney, the service will not be set aside on a motion filed more than four months afterward, and more than one year after the rendering of the judgment complained of, and after the time for bringing a case to the supreme court has elapsed.</p>

Error from, Greenwood District Court. The opinion states the case. Judgment for the plaintiffs Winter & Bro., at the May term, 1887. The defendants bring the case here.

Error from FranUin District Court. Ejectment, brought by Houseman against the Missouri Pacific Railway Company and the St. Louis, Kansas & Arizona Railway Company, to recover the possession of a strip of land one hundred feet wide through a quarter-section of land in Franklin county, and also to recover damages thereto by reason of the construction of a railroad across said' land. Judgment for the plaintiff, at the October term, 1886. The defendants bring the case here.

<p> Motion for Rehearing. </p> <p>The opinion, filed at the session of the court in April, 1889, states the facts.</p>

Information filed against the defendants, charging them with an assault with a deadly weapon with intent to kill one Manville Crouse. Trial at the April term, 1888; verdict for assault and battery found against the defendants, who were sentenced to imprisonment in the county jail for the period of five months, and to pay the costs of the prosecution. They appeal.

Prosecution for murder in the first degree. From a conviction at the November term, 1885, the defendant Jones appeals. The facts are sufficiently stated in the opinion.

Error from Leavenworth District Court. The opinion states the case. Judgment for plaintiffs Whitaker and another, at the March term, 1887. They bring the case to this court.

<p>Bastabdy— Prosecution — Venue. A prosecution under the act providing for the maintenance and support of illegitimate children is not local, but may be brought in any county or before any justice of the peace of the state; and the warrant issued by a justice of the peace may go to and be served,in any part of the state where the defendant may be found.</p>

Error from Cloud District Court. Action brought by the plaintiff to recover $5,000 damages, which he alleges he sustained by reason of being committed to the city prison of the city of Concordia, by the defendant.

Error from, Jewell District Court. Action brought by the plaintiffs in error against the defendants in error. Trial by the court at the June term, 1887.

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

Frror from Labette District Court. Action to recover upon a forfeited recognizance. Judgment for The State for $500 and costs, at the February term, 1887. The defendants, Glasgow and two others, bring the case here. The opinion states the material facts.

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

Error from Atchison District Court. Action by Barron and four others, to restrain the issuance of certain tax deeds. Judgment for defendants, on January 15, 1886. The plaintiffs bring the case to this court. The facts appear in the opinion.

Error from Bourbon District Court. Replevin. Judgment for plaintiff Ford, on January 7, 1886. The defendant Barnhart brings the case here. The opinion states the facts.

Error from Miami District Court. Bell brought this action to recover damages for injuries which he received by being bitten by a dog belonging to defendant Morgan. Trial by jury at the June term, 1887, and judgment for the plaintiff for $100. Defendant brings the case here for review.

JEn'ror from Rooks District Court. Action brought by Aultman, Miller & Co., against L. W. Mickey, on a promissory note for $75. In 1884 the defendant purchased of the plaintiffs a Buckeye low-down self-binder, agreeing to pay therefor $225, and executed three notes of $75 each, payable in January, 1885, 1886, and 1887, respectively. The first note was paid when due. This suit was brought on the second note after refusal of payment.

Error from Saline District Court. Eeplevin, by Thomas against Baker, as sheriff 'of Trego county. Judgment for defendant for $1,637.33, at the February term, 1887. The plaintiff brings the case to this court. The material facts are stated in the opinion.

Error from Bourbon District Court. Cornelius Elston brought this actiou against Martha J. Chamberlain, Harriet W. Chamberlain, and Ira D. Bronson, asking that Harriet W. Chamberlain, claiming to be the owner of the northeast quarter of section 32, in township 26, in range 25, Bourbon county, be declared a mortgagee only; that the defendants be charged with the rents and profits of the premises, and he be permitted to redeem.

Error from Harvey District Court. The opinion states the facts. Trial by the court at the May term, 1885, and judgment for the defendants. The plaintiffs, Boioman and two others, bring the case to this court.

Error from Atchison District Court. This action was instituted on September 13, 1878, by R. 8. Andrews, to recover from the Central Branch Union Pacific Railroad Company damages to certain lots in the city of Atchison, owned by Andrews. After several trials of the cause, Andrews died, and the action was revived in the name of L. A. Andrews and B: E. Hudson, as administrators of the estate of R. S. Andrews, deceased.

Error from Mitchell District Court. Action brought by Rodgers against Perrault, to recover of the defendant $1,700 damages for an alleged breach of warranty in the sale of a stallion. Trial at the April term, 1887, and verdict and judgment for the defendant. Plaintiff brings the case here.

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

Error from Crawford District Court. Partition. The opinion states the facts. Judgment for the defendants, at the August term, 1885. The plaintiff, Mary A. Mosteller, brings the case to this court.

Error from, Rice District Court. Action to recover upon a life insurance policy. Trial at the September term, 1885, and judgment for plaintiff Gardner for $2,000. The defendant Union brings the case here. The opinion states the material facts.

Watts, as an elector, brought suit in the district court of Wichita county against the board of commissioners of said county, to restrain the issue of railway-aid bonds voted to the defendant railroad company. The court required the plaintiff to make the company a party defendant, and the record shows an amended petition filed by the plaintiff, in which the company was made a defendant.

Error from Linn District Court. Action by Harriet A. Howard against the Kansas City, Fort Bcott & Gulf Hailroad Company to recover damages for personal injury sustained by her, as she alleges, in consequence of the negligence of the railroad company.

Error from, Republic District Cow-t. Action, brought by Orooker against the heirs at law of Benjamin F. Pearson and others, upon three promissory notes, executed May 6, 1878, by Benjamin F. Pearson, payable in two, four and six months after date, and to foreclose a mortgage given to secure their payment. Pearson at the time of the execution of said notes was a resident of the state of Iowa, and continued to reside there up to the time of his death.

Error from Ellis District Court. Plaintiffs in error brought suit in justice’s court against the defendants to recover $200 on a promissory note.

Error from, Wilson District Court. Action brought by Cowles against Fisher and others, upon a promissory note, and to foreclose a mortgage given to secure its payment. The defendants, Fisher and two others, filed a general demurrer to plaintiff’s reply, which the court overruled. This ruling they have brought here for review. Trial by the court at the May term, 1886, and judgment for defendants. The plaintiff brought the case here. The material facts appear in the opinion.

Error from Doniphan District Court. Ejectment, by Bunting against Speek and wife. Judgment for defendants, at the October term, 1886. The plaintiff brings the case to this court. The opinion states the material facts.

On February 22, 1888, there was returned aud filed in the district court of Sumner county the following indictment, omitting caption and indorsements: “At the February term of said court, 1888, the jurors of the grand jury of the state of Kansas, sitting within aud for said county, duly impaneled, sworn and charged to inquire and true presentment make of all public offenses against the laws of the state of Kansas, cognizable by said court, committed or triable within said…

<p> Original Proceeding in Habeas Corpus. </p> <p>The opinion, filed at the session of the court in May, 1889, states the material facts.</p>

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

<p> M'ror from Geary District Court. </p> <p>The opinion states the case.</p>

Error from Dickinson District Court. This was an action brought by Packard against Herrington and Williams, to recover on a promissory note executed by them to the Bank of Enterprise. The record shows substantially the following facts: Packard, Herrington and Williams were all stockholders in the Bank of Enterprise. Williams was indebted to the bank $1,500, and held stock in the bank to the amount of $1,200. The stock was worth its face value.

Error from Shawnee District Court. Action by Oliver Green against Harriet F. Green and others, to set aside certain deeds which plaintiff alleged to be fraudulent as to him. Trial on February 7, 1887, and verdict and judgment for defendant James H. Easter day. The plaintiff brings the case to this court. The facts are stated in Green v. Green, 34 Kas. 740, et seq., and in the opinion, infra.

<p>1. Receives — Action—Presumption. Where the record of a case shows that a receiver was appointed on the same day on which the action was commenced, it will be presumed that each was done in its proper order.</p> <p>2. --Notice. A receiver may be appointed without notice to the adverse party, though generally such a thing should not be done.</p> <p>3. --- Provisional Receiver— Grounds. Eor the purpose of appointing a provisional receiver it is not necesssry that all the grounds therefor should be set forth in detail in the plaintiff's petition. It is necessary, however, that the action should be one in which a provisional receiver may be appointed.</p> <p>4. Pbobable Cause oe Action, Plaintiff to Have. Before a receiver can properly be appointed it is necessary that the plaintiff should have a probable cause of action against the defendant, and that the benefit to be derived from such cause of action might be lost or substantially impaired if the receiver were not appointed; but all this was shown in the present case.</p> <p>5. Insolvent National Bank — Receiver. Where a national bank is insolvent and in process of voluntary liquidation, and its affairs are being greatly mismanaged by its managing agents to the injury of its creditors and stockholders, and some of the creditors and stockholders are being favored to the injury of others, a receiver may be appointed at the instance of one of the stockholders not favored; and a provisional receiver may be appointed in such a case even where the bank only has been made a defendant.</p>

<p>County Tbe asubeb — Two Consecutive Terms — Ineligibility. Kiowa county was re-created in February, 1886, and temporarily organized in.March following. The first election in the county was held May 11, 1886, when all the county officers were chosen, including P., who was elected as county treasurer, and who immediately qualified and entered upon the discharge of the duties of the office. He was reelected in November 1886, for the term ending October, 1888, and was in possession of the office continuously from his first election until the expiration of that term. Held, That he was ineligible to be chosen or to hold the office for the succeeding term ending in October, 1890.</p>

K'ror from Phillips District Court. Action to recover upon a promissory note. Judgment for plaintiff McCormick, on December 28, 1886, for $23.75 debt, and for costs, $12.95. The defendant Beachley brings the case here.

Error from Wabaunsee District Court. Ejectment, brought by the plaintiff in error in the district court of Wabaunsee county, against the defendant in error, to recover the possession of the north half of the southwest quarter of section 4, township 12, range 11, in said county. The cause was tried at the October term, 1887, by the court, jury being waived. The court found the following facts, and thereon made its conclusions of law: “1.

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

<p>Petition in Error — Review. A general jury finding, based on disputed facts and conflicting testimony, and being approved by the district court, will not be disturbed.</p>

<p>1. Replevin — Duty of Clerk of District Court — Intoxicating Liquor. Under the civil code, $$ 177, 178, providing that 'in an action of replevin upon the filing of a bond and affidavit by the plaintiff as therein specified it shall be the duty of the clerk to issue an order for the delivery of the property to plaintiff, the duty of the clerk is purely ministerial, and he is not excused from issuing such order upon compliance with the requirements of said sections by the fact that the property is intoxicating liquor, and that the action is against the sheriff, who has seized it under criminal process.</p> <p>2.--No Excuse for Refusing to Issue Writ. Nor is the fact that the clerk has been enjoined from issuing such order in any action that might be brought for the recovery of the liquors, in proceedings on behalf of the state to which the plaintiff in replevin was not a party, any excuse for refusing to issue it.</p>

M'ror from Bourbon District Court. This acticm is the same as Gunn v. Durhee, (ante, p. 144,) but this record contains the entire proceedings of the trial. The findings of fact explain in substance the cause of action and the drift of the testimony introduced; they are as follows: “1.

The plaintiffs in error filed a motion for a rehearing, which the court denied at its session in July, 1889, aud then filed the opinion, infra.

<p>City — Enlarging Boundaries — No Appeal. Under chapter 97 of the Laws of 1885,'•relating to the enlargement of the boundaries of cities of the second class, as amended by chapter 69 of the Laws of 1886, no appeal can be taken from the district judge to the district court, and no appeal or petition in error can be taken from either such judge or such court to the supreme court.</p>

'Appeal from, Meade District Court. The defendant Baxter was charged with a felonious assault, tried at the December term, 1888, found guilty of assault and battery, and sentenced to pay a fine of $1 and the costs of the prosecution. He appeals. The facts are stated in the opinion.

<p>New Tbial, Denied- — Practice. Wheie, in an assignment of errors, the only errors complained of relate to mattefs occurring on the trial, for which a new trial was prayed, but the action of the court in overruling the motion is not assigned for error, no question is properly raised in this court. (Garson v. Dunk, 27 Kas. 524, cited, and followed.)</p>

<p>Stock-Killing Law — Two Causes of Action — Judgment, not a Bar. A mare and colt, belonging to the same person, entered upon a railroad track at the same time and place, and, both running before a train, the colt was first struck and killed, and then the mare was struck and injured, at a point thirty rods from where the colt was struck. An action was brought by the owner against the railroad company for the value of the colt, and a judgment was recovered for its value, reasonable attorney’s fees, and costs; and this judgment was paid by the railroad company. The mare subsequently died from the injuries received, and an action was brought for the value of the mare, and the satisfaction of the judgment fo.r the value of the colt was pleaded in bar of the second action. Held, That they were separate and independent causes of action, and that the first judgment and satisfaction did not bar a recovery in the second action.</p>

Erren' from Johnson District Court. Action brought by the plaintiff in error in the district court of Johnson county to recover upon a policy of fire insurance. Trial by the court, at the May term, 1887, which made special findings of fact and conclusions of law, and upon such facts and conclusions, rendered judgment for the plaintiff. The findings of fact and conclusions of law are as follows: “1.

Error from Sumner District Court. Appeal by Anderson from an award of damages by commissioners appointed to condemn a right-of-way over his land for the Leroy & Western Railway Company.

<p>School Disteiot, Created; Acts of Superintendent, Not Void. The county seat was located upon a certain piece of land which afterward, with other territory, became an incorporated city. The county-superintendent of public instruction held his office within such city, but not within that part where the county seat had been originally located; and while holding his office at that place he changed the boundary-lines of a certain school district and created a new school district. Held, That the fact that the county superintendent of public instruction did not hold his office at the place where the county seat was originally located, did not render his acts void.</p>

<p>Divokob — Refusal, Not Error. The plaintiff sued her husband for a divorce, on the ground of willful abandonment for more than one year. The court refused the divorce. Held, Under the evidence, not error.</p>

Error from Norton District Court. Action to recover money and to enforce a mechanics’ lien. The opinion states the material facts.

<p>1. Meastjbe oe Damages — Immaterial Instructions. On the trial of an action to recover damages for a breach of a special warranty on the sale of millet seed, the evidence was conflicting, as to whether there was a warranty, and as to whether the seed was good or not, and the jury returned a general verdict for the defendant: Held, That all instructions as to the measure of damages are immaterial.</p> <p>2. Instructions — Burden of Proof — Preponderance of Evidence. In such a case, it is the duty of the court to instruct the jury as to the burden of proof, the preponderance of evidence, and the inevitable result to the plaintiff if the evidence is equally balanced; and the statement of these rules is not such a repetition, or effort to make them prominent, as to prejudice the minds of the jurors against the plaintiff.</p>

Error from Lyon District Court. This was an action brought by the defendant in error against the plaintiffs in error, to recover $113.80, and costs.

<p>Chattel Mobtgages ■ — • Replevin — No Averment of Fraud — Inadmissible Evidence. In an action in replevin between two mortgagees of a stock of goods, the plaintiff alleges in his petition that his interest is derived from a chattel mortgage given by the owner of the goods, a written agreement with him, and a parol agreement with the defendants. The mortgage and written agreement are attached to the petition as exhibits. In both of them the chattel mortgage of defendants is recognized as the prior lien upon the goods replevied. It was also established by evidence offered by plaintiffs at the trial, that the parol agreement provided that defendants’ mortgage indebtedness should continue as a first lien until paid in full. There were no averments of fraud in the petition against the owner of the goods and defendants. Plaintiffs introduced evidence for the purpose of showing fraud and collusion between the owner and defendants, and that the notes and mortgages given by the owner to defendants were without consideration. Held, That such evidence, under the petition and exhibits, was inadmissible.</p>

Original Proceeding in Mandamus. The opinion, filed at the session of the court in May, 1889, contains a sufficient statement of the case. Rossington, Smith & Dallas, for plaintiff. R. F. Buoldes, and Johnson, Martin & Keeler, for defendants.

Error from Douglas District Court. Action for the partition of certain real estate. Trial by the court, at the February term, 1887, and judgment against plaintiff George W. White for costs. He brings the case here. The opinion states the facts.

Error from Wyandotte District Court. Action for an accounting and an adjustment of rights growing out of a joint transaction in real estate. Trial by the court, and judgment for defendants on April 16, 1887. The plaintiffs, Simpson and another, bring the case to this court.

Error from Rooks District Court. Ejectment, by White against Weeks and two others. Judgment for plaintiff, on July 19, 1887. The defendants bring the case here. The opinion states the facts.

<p>1. Homestead — Railroad Right-of-Way — Damages, Measure of. A settler upon public lands who has made a valid homestead entry, and is in possession perfecting his title, is entitled to full value for all injury done to his possession, where a part of such homestead has been condemned for a right-of-way for a railroad;' and the measure of his damage differs only in degree from that sustained by one for the same cause who has a perfect title.</p> <p>2. ----Erroneous Instruction. On a trial upon an appeal from an award of damages by a homesteader, it is error for the court to give the jury the same rule of measure of damages as would be proper to give, provided the homesteader had a perfect title to the land.</p>

Error from Johnson District Court. This was an action brought by William M. Evans against John T. JAttle, C. Dwyer, John Jackson and W. P. K. Hedrick, to perpetually enjoin the defendants from collecting and enforcing a certain judgment previously'rendered by a justice of the peace of Johnson county against the plaintiff, Evans.

Error from, Lyon District Court. Action to restrain the collection of a certain tax. Trial at the May term, 1887, and judgment for defendants. The plaintiff brings the case to this court. The facts are stated in Newman v. City of Emporia, 32 Kas. 456, et seq., and in the opinion herein, filed at the session of the court in May, 1889.

M'ror from Miami District Court. Action to recover damages for personal injuries. The opinion states the material facts.

The defendants in error filed a motion for a rehearing, which the court decided at its session in July, 1889, and then filed the opinion, infra. The material facts are stated in Beamer v. Winter, ante, p.297, and in the opinion herein.

Error from Osage District Court. Action to recover damages for a railroad right-of-way. Judgment for plaintiffs Adolph and wife, at the December term, 1886, for $1,550. The defendant Company brings the case to this court. The opinion states the facts.

Error from Allen District Court. This was an action of ejectment, brought on the 30th day of September, 1881, by Nelson Burnham against C. 8. Starkey, to recover possession of the west half of the southeast quarter of section 26, township 25, range 20 east, in Allen county. The case was tried by the court without a jury. Upon the trial, the following agreed statement of facts was read and filed: “1.

<p>1. Iebegudae Judgment, When Enforced. A judgment, which is irregular but not void, will not be set aside 'merely on a motion filed four years after the judgment was rendered ; but such judgment will be enforced.</p> <p>2. Judgment, Whether Void or Valid, When Immaterial. Where a separate judgment is rendered against each of two separate defendants, it is immaterial, for the purpose of enforcing the judgment against one of the defendants, whether the judgment against the other defendant is void or valid.</p>

Error from Osborne District Court. Action to recover damages for personal injuries. Judgment for plaintiff Neiswanger for $5,200, at the February term, 1887. The defendant Company brings the ease to this court. The material facts appear in the opinion.

<p>1. Kiowa County, Destroyed— Valid Aet. The act which destroyed the existence of Kiowa county and divided its territory between Edwards and Comanche counties, (Laws of 1875, ch. 60,) is not repugnant to 116 of article 2 of the constitution.</p> <p>2. Detached Teebitoby, Subjeet to Bond Tax. The territory detached from Edwards county in 1886, when the county of Kiowa was recreated, is liable, under chapter 142 of the Laws of 1873, and subject to taxation for the payment of the bridge bonds and the court-house and jail bonds which were issued in pursuance of a vote of the electors of Edwards county before that county was divided.</p> <p>3. Aot — Provisions Embraced in Title. The provisions of the last-mentioned act are fairly embraced in its title, and are valid, and they apply where the detached territory is erected into a new county the same as where it is attached to one already organized.</p> <p>4. Land, Subject to Taxation. The fact that some of the territory may have been government land and not taxable when it was detached, will not relieve it from taxation in accordance with the rule of that act when it is no longer exempt.</p> <p>5. Bond Debt, Attaches, When. The liability for the debt attaches to the real estate of the county as soon as the bonds are legally authorized and issued, and the fact that the proceeds of the bonds have not been expended when the change of boundary-lines is made, will not exempt the detached territory from bearing its proportionate share of the debt.</p>

Error from Franhlin District Court. Action under § 422 of the civil code, to recover damages for wrongfully causing the death of Dexter F. McCally. Trial at the October term, 1886, and judgment for the plaintiff for $3,000. The defendant Railway Company brings the case to this court. The material facts are stated in the opinion.

<p> Motion for Rehearing. </p> <p>The facts are stated in Mo. Pac. Rly. Co. ®. McCally, just decided, and in the opinion herein, filed on May 10, 1889.</p>

Error from Montgomery District Court. Action to recover damages for personal injuries. Judgment for plaintiff Kier on April 2,1887, for $7,000 damages) and $350.85 costs. The Railroad Company brings the case to this court. The opinion, filed February 9, 1889, contains a statement of the material facts.

<p> Motion for Rehearing. </p> <p>The facts are stated in K. C. Ft. 8. & G. Rid. Co. v. Kier, supra, and in the opinion herein, filed on June 7, 1889.</p>

On September 13, 1887, the county attorney of Finney county filed in the district court of that county a criminal information, which, omitting title and signature, reads as follows: “I, W. R. Hopkins, county attorney of said Finney county, in the name, by the authority, and in behalf of the state of Kansas, come here now and give the court to understand and be informed: “That on the 1st day of August, 1887, and at divers other times and days, and from the said 1st day of…

Error from Dickinson District Court. Action to recover damages for a railroad right-of-way. Judgment for plaintiff Grovier, at the May term, 1887, for $5,490 as damages. The defendant company brings the case to this court. The material facts are stated in the opinion.

<p>New Teiax. — Overruling Motion — Question, Not Considered. Wherein an assignment of errors the only errors complained of relate to matters occurring on the trial, for which a new trial was prayed, but the action of the court below in overruling the motion is not assigned for error, no question is properly raised in this court. (Carson v. Funic, 27 Kas. 524, and Clark v. Sehnur, 40 id. 72, cited, and followed.)</p>

<p>1. Debtob —-Insolvency — Conveyance as Security. Absolute conveyances of real estate made by debtors to creditors, intended as a security for a bona fide existing indebtedness, are not void as to the other creditors, even if the debtors are insolvent, and the creditors have knowledge of the insolvency.</p> <p>2. Insolvent DebtoE' — Conveyance, Not Fraudulent- — Record. When insolvent debtors made conveyances of real estate to creditors, for the purpose of securing a bona fide indebtedness, and the creditors withheld the conveyances from record, with an honest belief that their indebtedness would be paid; and without any agreement or understanding with the debtors that the conveyances should be withheld from record, for the purpose of benefiting their debtors in someway, such conveyances are not fraudulent as to the other creditors because they were not recorded.</p> <p>3. --Unrecorded Deed — Fraudulent Intent. The fact that creditors to whom debtors have made absolute conveyances of real estate that are intended as security, do not cause such conveyances to be recorded, is not, as an independent and isolated fact standing alone and disconnected from other suspicious circumstances, sufficient evidence of a fraudulent intent.</p> <p>4. Deed by Debtoe, When Good against Subsequent Creditor. Voluntary conveyances of real estate made by debtors to creditors that were intended as security for existing indebtedness, are good as against subsequent creditors, unless it is shown that they were made by the debtors and accepted by the creditors, with the intent on the part of the debtors to contract debts with the subsequent creditors, and to defeat the payment of the debts so contracted.</p>

Drror from Wyandotte District Court. Action brought by Wilson H. Fox, as administrator of the estate of J. M. Hite, deceased, against the Inter-State Consolidated Rapid Transit Railway Company, to recover damages for wrongfully causing the death of Hite.

<p>1. Raileoad — Defective Grossing ■ — Complaint. Complaint of a defective railroad crossing made to one who has no charge or control of the same, though he be a servant of the railway company, is no notice of the defect to the company.</p> <p>2. --No Contributory Negligence. A railway company by a rule prohibited conductors and engineers from making flying switches; the deceased, a brakeman, working under the direction of an engineer, was not guilty of contributory negligence when the manner of switching by which he was killed had been the usual and customary way of doing the same, though he knew of the rule.</p> <p>3. New TeiXl, When to be Granted. A new trial should be granted when it appears that the only theory upon which a judgment could be sustained is upon a phase of the action not tried, but practically ignored, and another phase thereof appeared to have been thoroughly tried, and regarded by all as the important and pivotal part of the case.</p>

Error from, Pawnee District Court. On July 22,1882, James Sly commenced his action against the Atchison, Topeka & Santa Fé Railroad Company, in the district court of Reno county, to recover $10,000 for alleged personal injuries. The railroad company filed its answer containing a general denial, and also alleging that the plaintiff was guilty of gross negligence, and that he directly contributed to his injuries. Sly filed a general reply.

Error from Dickinson District Court. The case is stated in the opinion. Judgment for plaintiff Dill, at the May term, 1887, for $1,066. The defendant com.pany brings the case here.

Error from Ottawa District Court. Ti-ie opinion states the case. Judgment for Hurst, at the August term, 1887. The Railroad Company brings the case to this court.

<p> Original Proceeding in Quo Warranto. </p> <p>The facts are stated in the opinion, filed on June 7, 1889’..</p>

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

Error from Harvey Eistriet Court. Action brought by Ireland against George and two others, to recover a quarter-section of land in Harvey county. Trial at the February term, 1887, and judgment for the defendants. Plaintiff brings the case here. The opinion states the facts.

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

Error from Shawnee District Court. Searing complains of an order of the court below overruling his motion to set aside a certain judgment rendered in favor of the defendant in error, Benton. The material facts are stated in the opinion.

Error from Johnson District Court. On June 5, 1885, the Phelps & Bigelow Windmill Co. and Fred Piercy entered into an agreement about the erection of a windmill with various attachments, on Piercy’s land. The company insists that the entire contract between the parties is in two written instruments — one a statement made by Kelsey, the duly-authorized agent of the company; the other an order for the windmill, attachments, etc., signed by Piercy.