Volume 43 — Kansas Reports

Error from Harvey District Court. On March 3, 1886, John W. Morgan brought his action, against the Atchison, Topeka & Santa Fé Railroad Company to recover $8,000 for damages, alleged to have been received on the 7th day of December, 1885, by him, on account of the negligence of the company. On March 26,1886, the railroad company filed its answer, which was a general denial of the allegations of the petition.

Error from, Miami District Court. Action to recover on a fire insurance policy. Judgment for the plaintiff Gibbons, on December 13, 1887. The defendant Company brings the case here. The material facts are stated in the opinion.

Error from Cloud District Court. The opinion states the facts. Judgment for the plaintiff Company for $708.21, together with costs, on March 14, 1887. The defendant Simpson brings the case here.

<p>Yebdiot, Good against John Doe and Others. A verdict of a jury entitled in the name of the plaintiff against one of the defendants by name, and designating numerous other defendants as “ et at.,” is good against all those shown by the record to be the co-defendants of the one specifically named in the verdict.</p>

Error from Shawnee District Court. Action brought by the plaintiff in error to recover damages for the failure of the defendant to fill a prescription, and permit plaintiff to purchase intoxicating liquor for medicinal purposes at defendant’s drug store.

<p> Error from Cloud District Court. </p> <p>The opinion, filed at the session of the court in January, 1890, contains a sufficient statement of the case.</p>

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

<p> Error from Cloud District Court. </p> <p>The case is stated in the opinion.</p>

<p>Newuy-Obganized County — First Election— Officers — Length of Term. At the first election held in a newly-organized county, the county officers elected at such election will hold their offices only until the next general election to be held thereafter, and until their successors shall be elected and qualified, although suoh first election may be held on the same day on which the general election in the state is held.</p>

<p>Heed Law— Order of County Board — Insufficient Proof of Publication. An order of the board of county commissioners directing what animals shall not be allowed to run at large within the bounds of their county, as authorized by chapter 193, Laws of 1872, does not go into effect until it is published for four successive weeks; and an affidavit attached to an order, stating that the order had been published in a weekly newspaper for four weeks, and giving the date of the first publication, but which does not state when the other publications were made, nor that it was published for four consecutive weeks, is insufficient to show that the order had been published as the statute requires.</p>

<p> Error from Shawnee District Coitrt. </p> <p>The facts are set forth in the opinion.</p>

Error from Norton District Court. Action brought by Frederich W. Warner, as administrator of the estate of John S. Willard, deceased, against Mary Blue, Philip Blue, Mary Broquet, Ernest Broquet, Sarah L. Croco, William H. Croco, and George W. Burton, upon a promissory note, and to foreclose a mortgage to secure the same, executed by James and Mary Blue to George W. Burton, and assigned by Burton to John S. Willard.

Error’ from Lincoln District Court. On the 11th day of August, 1887, J. B. Watlcins commenced his action against the Chicago, Kansas & Western Railroad Company, and alleged in his petition: “That the said defendant is now and at the times hereinafter mentioned was a corporation duly organized and existing under and by virtue of the laws of the state of Kansas; that said plaintiff is now and for more than one year last past has been the owner in fee and in the possession of…

<p> Error from Stafford District Court. </p> <p>Action to recover on certain promissory notes. The material facts appear in the opinion.</p>

<p> Frror from Finney District Court. </p> <p>The case is fully stated in the opinion.</p>

Error from Ford District Court. Action brought by plaintiff in error in justice’s court, in Ford county, to recover possession of a certain tract of land. The defendant raised the question of the jurisdiction of the court, and finally the justice certified the cause to the district court upon the ground that the title was in dispute.

Error from Sumner Distrid Court. Judgment for costs against plaintiff Foss, on January 2, 1888. He brings the case here. The opinion states the nature of the action, and the material facts.

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

Error from, Clarh District Court. Burnham, Hanna, Munger & Company brought an action against Henry J. Dillon to recover the sum of $414.74 for merchandise purchased from them by Dillon.

Error from, Doniphan District Court. The facts are stated in the opinion. Judgment for plaintiff Cook, at the April term, 1887. The defendant Railway Company brings the case to this court.

Error from Atchison District Court. Action by Campbell W. Barker against Sarah J. Barker for a divorce, and a division of property. At the November term, 1886, the court made special findings of fact and conclusions of law, and rendered judgment for defendant, denying plaintiff any right in the property of defendant held by her in her own name. Plaintiff brings the case here.

Error from Shawnee District Court. On April 11, 1885, the Commonwealth Company brought its action against the 'State Journal Company and others, in the superior court of Shawnee county, to recover $5,960.34 and interest upon three promissory notes, and also to foreclose two chattel mortgages covering the newspaper office, printing material, etc., of the Journal Company, given to secure the payment of the notes.

Error from Labette District Court. Ejectment, by Roberts against the Railway Companies, to recover possession of certain lands occupied by defendants as a right-of-way through section 16, township 34, range 21, in Labette county. Trial by the court, and judgment, on November 2, 1887, for defendants. Plaintiff brings the case here.

On May 8,' 1889, there was filed in the district court of Barber county the following information, omitting caption and indorsement: “Now comes R. A. Cameron, the county attorney of the said county, and in the name and on behalf of the state of Kansas gives the court to understand and be informed that on or about the 15th day of April, 1889, in the county of Barber and state of Kansas, one L. M. Spencer, whose more full Christian name is to the said county attorney unknown,…

<p>Inbobmation, to be Verified. An information charging a defendant with a criminal offense must be verified by the oath of the prosecuting attorney, complainant, or some other person.</p>

<p> Appeal from Morris District Court. </p> <p>Prosecution for murder in the first degree. Trial at the adjourned April term, 1889, and conviction for murder in the second degree. The material facts are stated in the opinion.</p>

Appeal by The State from the rulings of the district court quashing an information.

Frrror from MaFherson District Court. Action to recover damages for bodily injuries. Judgment for plaintiff Manning for $1,000, at the April term, 1887. The defendant City brings the case here.

Error from Johnson District Court. Beplevin. Judgment for defendants, at the May term, 1887. The plaintiff brings the case to this court. The opinion states the facts.

Error from Wyandotte District Court. Injunction, which had been granted on behalf of the Railway Company, dissolved at the March term, 1888. This ruling the plaintiff brings here for review. The facts sufficiently appear in the opinion.

Error from. Shawnee Superior Court. The opinion states the nature of the action, and the facts. Judgment for the defendant Board of Education, at the January term, 1887. The plaintiffs Curtis and two others bring the case to this court.

Error from Franklin District Court. Action brought against the Railway Company by Robbins, as administrator of the estate of John F. Patterson, deceased, to recover damages for the benefit of his widow and child. Judgment for the plaintiff, at the October term, 1887, for $5,500. The defendant company brings the case here. The facts are stated in the opinion.

M'ror from Lincoln District Court. On the 8th day of April, 1887, David Hardesty commenced his action against Volney Ball, and in his… Held: that a right of action in favor of plaintiff and against the owner of the mill-dam accrued on October 10,1883, and under the limitation of said § 14 the suit for damages occasioned by the erection of the dam should have been brought within two years.” On January 25, 1890, the plaintiff in error filed a motion for a rehearing, which…

<p>Case-Made — Extension of Time without Authority. Where a motion to extend the time granted for making and serving a case for the supreme court is duly filed, but is not submitted to the court until the time already granted has elapsed, the court has no authority to make any further extension.</p>

<p> Original Proceeding in Habeas Cotpus. </p> <p>Petition, filed January 6, 1890. The opinion, filed on February 8, following, states the material facts.</p>

<p>1. Taxes — Undivided Half of Certain Lands. The owner of three quarter-sections of land that have been assessed and taxed as entire and complete quarter-sections cannot pay taxes on an undivided half of each of such quarter-sections.</p> <p>2. Tax Sale, Without Authority. The county treasurer has no authority to sell an undivided interest in real estate for delinquent taxes and oharges. (Corbin v. Inslee, 24 Kas. 154, followed.)</p> <p>3. Ejectment, Defeated — Recovery of Taxes Paid — Lien. A tax-title holder who seeks to recover the possession of an undivided half of three quarter-seotions of land by an action of ejectment against the original owner, and is defeated in such action, is entitled" to be paid by the successful claimant the amount of the taxes,' together with the proper charges, interest and costs paid by him to procure his invalid tax deeds. And such taxes, interest, costs and charges are a lien upon the land until they are paid by the owner or some person liable therefor.</p>

Error from Norton District Court. Replevin, by Friend against Gh'een, to recover certain specific personal property. Trial at the April terra, 1887, and judgment for plaintiff for the possession of part of the property, and judgment for defendant for the remainder. Plaintiff brings the case here.

Error from Lane District Court. The plaintiffs in error, as plaintiffs, filed their petition in the Lane district court, asking for a j udgment against defendant Orr for $4,544.10, and that certain lots held by the other defendant, Julia E. Lewis, be adjudged to be the property of plaintiffs, and that her deed therefor from Orr be set aside, and a commissioner be appointed to execute a deed to the same to plaintiffs.

Error from Atchison District Court. The opinion states the case. Judgment for defendant Bru/ne, at the February term, 1887. The plaintiff Purslow brings the case here.

Ekror from Butler District Court. The opinion states the case. Judgment for the defendants, at the December term, 1887. The plaintiff Mead brings the case to this court.

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

Error from Shawnee District Court. Action brought before a justice of the peace by Collins against Martin and another, to recover $100 for work done for defendants, and for hay and other feed furnished their stock.

Error from Harvey District Court. On the 22d day of March, 1886, the district judge of Harvey county appointed three commissioners to condemn a right-of-way through that county for the St. Louis, Fort Scott & Wichita Railroad Company.

Original Proceeding in Habeas Corpus. Petition of John T. Tillery and others, filed in this court on January 2, 1890. The opinion herein, filed on February 8 following, contains a substantial statement of the facts.

Hrror from Harper District Court. Application for a temporary injunction, denied on October 24, 1887. This order The State brings here for review. The opinion states the material facts.

Error from Ellis Bistriet Court. Action to recover on a promissory note. Trial at the September term, 1887, and verdict for the plaintiff, Bank, for $363.17. New trial denied, and judgment given for plaintiff. The defendants bring the case here.

Error from Lyon District Court. M. D. Wells & Company commenced an action against C. M. Robb et al, before a justice of the peace of Lyon county, on the 5th day of May, 1887.

Error from Sumner District Court. Ejectment. Trial at the February term, 1887, and judgment for defendants. The plaintiff Richards brings the case here.

Error from Atchison District Court. The opinion states the case. Judgment for defendant Krall, at the February term, 1887. The plaintiff McClellan brings the case here.

Error from. Brown District Court. Action brought by Peter C. McGillvray against Elias Moser. In his petition he alleges that a partnership was entered into between them in 1881, at Hiawatha, for the sale of farm machinery, agricultural implements, buggies, etc., and that by mutual agreement the firm was dissolved January 1,1883.

Error from Johnson District Court. On the 31st day of May, 1887, Joel Cochran, administrator of the estate of John M. Gibson, deceased, filed his petition in the district court of Johnson county, against the Atchison, Topeka & Santa Fé Railroad Company, alleging that — “The plaintiff herein complains of the defendant herein, for that on the 30th day of May, 1887, he was duly appointed and qualified, and letters of administration of the estate of John M. Gibson, deceased,…

Prosecution for a violation of the prohibitory liquor law. Conviction and sentence at the May term, 1889. The defendant Kulkei' appeals. The material facts are stated in the opinion, filed on January 11,1890.

<p>1. Ineokmation — Counts Properly Joined. Counts for grand larceny, and for unlawfully and feloniously receiving the stolen property described' in the count for larceny, may be properly joined in the same information or indictment.</p> <p>2. Witness — Cross-Examination — No Contradiction. Where a witness for the prosecution in a criminal cause, upon reexamination, in explaining collateral matters drawn out upon his cross-examination, implicates the defendant in another offense than the one charged against him, and no objection is taken at the time to his statements, such answers, affecting collateral matters only, cannot afterward be contradicted by the witnesses for the defendant.</p> <p>3. --Conflicting Evidence; Verdict. An examination of the record in this case shows that the evidence is greatly conflicting, but it cannot be said that the verdict is not supported by sufficient evidence.</p>

<p>X. Contbaot — Benefit for Third Person. Whenever two persons make a contract for the benefit of a third, the third may maintain an action thereon for any breach thereof to his injury.</p> <p>2. Desceiption, Partly True, Partly False — Enforcement of Contract. Where a description in an instrument in writing is partially true and partially false, but where it can be clearly made to appear, either from the face of the instrument itself or from extrinsic facts, which portion of the description is true and which portion is false, the false portion of the description will not necessarily render the instrument void, nor will it necessarily require that the instrument should be reformed before it can be enforced. Generally such an instrument will be held to be valid, and will be enforced without any reformation.</p> <p>3. Oontbaot — Reformation — Enforcement—Parties Defendant. Where a petition sets forth and shows that the defendant and another person not a party to the action executed a written contract for the benefit of the plaintiff, and it also appears from the petition that there was a partially true and partially false description in the contract, but the portion of the description that is true is sufficient if taken alone to uphold the contract, and the petition states, and it can also easily be shown by extrinsic facts, which is the true and which is the false portion of the description, held, that the petition does not because of its allegations concerning the partially false description disclose a contract that is void, or that needs reformation before it can be enforced, nor does it disclose a defect of parties defendant in the action.</p>

<p>1. Continuance • — Insufficient Showing. A sufficient showing of diligence to compel the continuance of a cause in order to obtain additional testimony is not made out where the defendant applying for the continuance has failed to subpena the absent witness for the alleged reason that he was informed the witness would be present at the trial.</p> <p>2. Testimony, Not in Record. Error cannot be predicated upon a ruling excluding testimony, where the testimony desired is not shown in the record, nor any statement made as to what the proposed testimony would be.</p> <p>3. Continuance, Denied■ — Judgment, not Reversed. Before closing his evidence, the defendant asked for a postponement of the trial to the following day in order to obtain the testimony of a person for whose attendance a subpena had only been issued a few hours before, and was not yet served. No adequate reason was given for the delay in causing the subpena to issue, nor any satisfactory showing made that it would be served, or the presence of the witness obtained. Held, That the denial of the application is not a ground for reversal.</p> <p>4. New Tbiae — No Ground for Granting. While the jury were in the jury-room deliberating on their verdict they desired the testimony of a witness that was given orally in court, and the sheriff, who was on the outside of the room, the door being locked, responded: “ Gentlemen, you cannot have any testimony admitted after you have gone into your jury-room.” Held, That the defendant suffered no prejudice by reason of this communication, and that it afforded no ground for a new trial.</p> <p>5. Evidence, Sustains Verdict. The evidence examined, and held sufficient to sustain the verdict finding the defendant guilty of larceny.</p>

Error from Shawnee District Court. The facts are fully stated in the opinion. Judgment for plaintiff Hadley for $343.09 damages, at the September term, 1887. The defendant, Brown, brings the case to this court.

Error from Shawnee District Goitrt. Action originally brought by Andrew J\ Huntoon against the Capital Bank of Topeka and others, to set aside a certain sheriff’s sale of a large number of lots in the city of Topeka, levied upon as the property of Joel Huntoon, and for other .relief. Trial at the January term, 1884; judgment for the plaintiff.

<p>Vkbdiot, Not Sustained by Sufficient Evidence. Where there is no evidence introduced at the trial of a criminal offense that establishes with any degree of certainty that the offense charged was committed before the date of the filing of the information, a verdict of guilty is not sustained by sufficient evidence, and should be set aside.</p>

JEh'ror from Sherman District Court. The opinion states the case. Judgment for plaintiff Morris, on May 18, 1887. The defendant Company brings the case here.

Error from Harvey District Court. The facts are stated in the opinion. Judgment for plaintiffs, Scott & Hively, at the May term, 1887. The defendant Stephens brings the case to this court.

<p>1. Cobpobation — Contract Executed by Officers • — Denial of Authority— Burden of Proof. Where the president and secretary of a corporation execute a contract in behalf of the company, which is regular on its face and not shown to be outside of the regular business of the corporation, it is prima facie evidence that it was executed with authority, and those who deny the authority take upon themselves the burden of establishing their claim.</p> <p>2. Contbaot — Authority to Make — Presumption. Where the president and secretary of a corporation act openly and publicly as its agents in making contracts and generally in managing its business, with the understanding and acquiescence of the directors that they shall so act, the corporation will not be relieved from liability upon contracts so made, upon the mere ground that the directors failed to formally confer authority on these officers by vote or resolution entered on the records of the corporation.</p>

<p>1. National Bank — Paving Contract — Security for Debt. A banking corporation organized under the laws of the United States can take an assignment of the money due and to become due, from a city of the second class, on a contract for paving a street, from the contractor, to secure an existing bona fide indebtedness by the contractor to the bank.</p> <p>2. City, Not Garnished. Considerations of public policy will not allow a city of the second class to be liable under a process of garnishment. (,Switzer v. Gity of Wellington, á0 Kas. 250, cited, and followed.)</p>

<p> Appeal from Ellis District Court. </p> <p>Trie opinion contains a sufficient statement of the case.</p>

Hrror from Sedgwick District Court. On the 1st day of September, 1886, Ida A. Wright brought her action against Herman Steinbuchel, to recover $10,000 for slander.

Error from Harvey District Court. This was an ordinary condemnation proceeding, instituted by the St. Louis, Fort Scott & Wichita Railroad Company to procure a right-of-way through certain lands in Harvey county, including a tract of land consisting of 200 acres, belonging to Lewis Noble. Eight and twenty-four hundredths acres of the land were taken for the right-of-way, and the remainder thereof was thereby injured.

<p>Pbomissoby Note — Extinguishment of Debt — Burden of Proof. The giving of a promissory note for an antecedent debt is prima facie not a payment or extinguishment of the debt, and will not be so regarded unless that is the express agreement of the parties; and where a party alleges as a defense that the note was accepted as payment, the burden of proof rests upon him to show that such was the purpose and agreement of the parties.</p>

<p>Instbuotions — Defective Record — No Review. Where the instructions given to the jury are complained of, but none of the evidence is brought here, nor any statement as to its purport, but simply that the parties offered evidence and rested, it cannot be held that the court instructed the jury erroneously.</p>

Error from McPherson District Court. The case is stated in the opinion. Judgment for costs against plaintiffs, Limerick & Co., at the January term, 1888. They bring the case to this court.

<p> Error from Wyandotte District Court. </p> <p>The case is stated in the opinion.</p>

<p>1. Jubisdiotion of Justice — IAmit. The amount claimed in a plaintiffs’ bill of particulars fixes the jurisdiction of the justice of the peace, and if it be in excess of three hundred dollars, the justice has no jurisdiction of the action.</p> <p>2. --Appellate Jurisdiction. On appeal from a judgment of a justice of the peace, the jurisdiction of the district court is wholly and exclusively appellate.</p> <p>3. Appeal — Objection to Evidence — Practice. Where the defendant takes an appeal from a judgment of a justice of the peace, and files no answer, set-off, or counterclaim, it is sufficient to raise the question whether the court has jurisdiction if he objects at the trial to the introduction of any evidence on behalf of plaintiffs, for the reason the court has no jurisdiction of the subject-matter of the action.</p>

Original Proceeding in Quo Warranto. This is an original proceeding in quo warranto, brought February 15,1888, by The State of Kansas, upon the relation of the attorney general, against T. A. Sccdes, to remove him from the office of county commissioner of Seward county. His term of office commenced in January, 1887, and will expire in January, 1890.

<p> Error from Shawnee District Court. </p> <p>Judgment for plaintiff Knoyle, at the January term, 1888. The facts are substantially stated in the opinion.</p>

Error from Bourbon District Court. On November 14,1887, Waller Chenault brought an action against A. W. Walburn and C. F. Drake, to recover upon a supersedeas bond.

<p> Error from, Brown District Court. </p> <p>The case is fully stated in the opinion.</p>

Error from Dickinson District Court. The material facts are stated in the opinion. Judgment for plaintiff Brunson, for $441, at the October term, 1887. The defendant Company brings the case here.

Error from EranJclin District Court. J. W. Sharitt brought this action on the 27th day of July, 1887, against the Missouri Pacific Railway Company, to recover wages due him. The action was brought before a justice of the peace in Franklin county, and judgment was rendered against the defendant. An appeal was taken to the district court, which made findings of fact and conclusions of law as follows: “1.

The plaintiff in error filed a motion for a rehearing, which the court denied at its session in March, 1890, and made the order infra.

<p>1. Juby — Questions of Fact — Practice. Where questions of fact submitted to a jury are not fully and substantially answered, the court, on application of either party, should instruct the jury to fully and explicitly answer them.</p> <p>2.---Special Question — Refusal—Error. Where an interrogatory is requested to be submitted to the jury, within the issues joined by the pleadings and the evidence introduced, asking for a more explicit answer to another interrogatory submitted, it is error for the court to refuse to submit it to the jury.</p> <p>3. Insubanoe— Loss — Notice. In an action against a fire insurance company, where it is provided in the policy that in case'Of loss the insured must notify the company of the fire, and also forward to the home office of the company proofs of any loss sustained, upon a trial to recover for such loss the jury should find, under proper questions of fact, not only that notice of the fire had been given the company, but also that proof of loss had been either made or waived.</p>

Error from Shawnee District Court. Ti-ie Topeka Water Supply Company commenced its action in the court below against the city of Potwin, its officers and employés, to- perpetually enjoin the construction of a system of sewers for carrying off filth, excrement and refuse matter of the city into the Kansas river above the wells of the company, and also to prevent the officers, agents and employés of that city from using the river for any like purpose.

<p>1. Peeísmption — Contested Case — Appeal. The officers of the land department are especially designated by law to receive, consider and pass upon proofs presented with respect to settlements upon the public lands, with a view to secure rights of preemption; and, for mere errors of judgment upon the weight of evidence in a contested case before them, the only remedy is by appeal from one officer to another of the department, and perhaps, under special circumstances, to the president.</p> <p>2. Pacts Stated — Duty of Pre-emplor. Where a person comes to a United States local land office, intending to homestead one hundred and sixty acres of land, and makes his application and tenders the fees therefor, but is informed by the register that his land is situated within the granted limits of a railroad company, and that he can homestead only eighty acres, and, acting upon this advice, utterly abandons the intention of taking a homestead and makes a preemption filing upon eighty acres of the land, he must subsequently show a compliance with the requirements of the preemption law to prove up and make payment on the eighty acres.</p> <p>3. Pkeemption — Filing, Canceled — Adverse Claimant. Where a person having the qualifications of a preemptor attempts to secure title to a tract of land under the preemption law by filing thereon, and his preemption filing is subsequently canceled on account of his noncompliance with the provisions of the statute and the regulations of the United States land department concerning residence and improvements, he cannot afterward claim the land as a settler under the homestead law, if an adverse claimant has in the mean time intervened and obtained a legal right thereto.</p>

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

<p> Error from Allen District Court. </p> <p>The opinion contains a sufficient statement of the facts.</p>

Prosecution for a violation of the prohibitory liquor law. From a conviction at the January term, 1889, the defendant Donaldson appeals.

Error from Harper District Court. Action to recover on a promissory note. Trial at the January term, 1888, and judgment for plaintiff Gray. The defendant Kirkpatrick brings the case here.

Error from Stafford District Court. The material facts are stated in the opinion. Judgment for Burnham, Hanna, Mwnger & Co., at the March term, 1887. Larabee brings the case here.

Prosecution for a violation of the prohibitory liquor law. The material facts are stated in the opinion. From a conviction on September 21,1889, the defendant McLain appeals.

Error from Geary District Court. The material facts are stated iu the opinion. Judgment for defendant Blue, at the March term, 1887. Plaintiff Miller brings the case. here.

Errror from, Saline District Court. The opinion states the case. Judgment for defendant Donmyer, at the December term, 1887. The plaintiffs bring the case to this court.

Krror from Atchison District Court. This was au action brought by George H. Miller against Keturah V. Morrison, and Frank E. Shaw as sheriff of Atchison county, to restrain the defendants from enforcing and collecting a certain judgment and an execution issued thereon.

JEt'ror from Bourbon District Court. Action by Phinney against Bronson and Ayers for $567.97, and interest, alleged to be due “ for work and labor as a civil engineer, and for money paid out and expended by plaintiff for the benefit of Bronson and Ayers.” Answer, general denial. Plaintiff’s bill of particulars shows a claim for $1,264.-12, of which $117 are stated to have accrued in September, 1882. The remaining account runs from June, 1883, to February, 1884.

Error from Osborne District Court. . The case is stated in the opinion. Judgment for defendant Linville, at the February term, 1888. The plaintiff Company brings the case here.

<p>New Tbiae; Case, Followed. When a motion is made for a new trial, and continued until the judge who tried the case has gone out of office, and his successor hears such motion, it is his duty to grant a new trial. (Bass v. Swingley, 42 Kas. 729, followed.)</p>

E'ror from Sedgwick District Court. The case is stated in the opinion. Judgment for plaintiff Bias, at the February term, 1887. The defendants bring the case here.

Error from, Wabaunsee District Court. Action'to quiet title. Judgment for plaintiff Nieolson, at tbe October term, 1887. The defendant Wood brings the case to this court. The opinion states the material facts.

Error from Butler District Court. Action in ejectment, by Knote against Caldioell and another. Trial on December 27, 1887, before E.D.S., judge pro tern., without a jury, and judgment for defendants. The plaintiff brings the case here. The material facts appear in the opinion.

Error from Saline District Court. Action brought by Bridged Deverell against Sarah M. and Jasper Taylor, to reform and correct the description in a certain conveyance of real estate theretofore made by the Taylors to the plaintiff. The cause was tried at the May term, 1887, and the court, upon request, and after hearing the testimony, made the following findings of fact and of law : “1.

Error from Jefferson District Court. Action to recover possession of certain land. Judgment for Filley and another, on October 18, 1887. Webster brings the case here. The opinion contains a sufficient statement of the facts.

<p>1. Note — Statutory Bar — Material Allegation to be Proved. When it appears upon the face of a note that it is barred by the statute, and the only evidence that it is not barred is a payment alleged to have been made, and that payment is denied under oath, the allegation of payment is material, and it is necessary for the plaintiff to prove the payment in order to recover.</p> <p>2. Findings — Verdict—No Conflict — Judgment. When there is nothing in the special findings of a jury in conflict with the general verdict, it not error for the court to enter judgment in accordance with the general verdict.</p> <p>3.--Amendment of Answer. An amendment of an answer may be allowed, after verdict, in furtherance of justice.</p>

Error from Dickinson District Court. The ease is stated in the opinion. Judgment for plaintiff Palmer, at the October term, 1887. The defendant Shane brings the case here.

Error from Bourbon District Court. On August 20, 1886, C. F. Drake commenced his action against J. D. Havens, and in his petition alleged as follows: “That he is the owner of and in the possession of the following-described real estate, sithated'in Bourbon county, Kansas, to wit: Lot No. 9, in block No. 103, in the city of Eort Scott.

Error from Wyandotte District Court. Action on a promissory note, brought on December 12, 1885, before a justice of the peace of Wyandotte county by William H. Raynor and John L. Severance, assignees of the Leader Sewing Machine Company, against J. B. Bryant. The note was for $142.08, with a payment thereon of $6.50. It was executed by Bryant to the Leader Sewing Machine Company, was dated February 18, 1885, and was due in six months after date.

Error from Sumner District Court. This was an action for loss by fire upon a policy of insurance executed December 4,1885, insuring, among other property, the following, for the amounts named: Barn and shed, $200; hay, in barn, $200; grain, in barn and in stack on cultivated premises, $1,500.; farming implements, $300. The fire occurred on May 28, 1886, and the property mentioned, which is alleged to be of the total value of $2,200, was wholly destroyed by the fire.

<p>Dam — Backwater on Highway — Defective Crossing — Mules Drowned— Liability. A party who built a dam, causing the back-water to fill a ravine across which ran a public highway, made a causeway composed of logs, brush, stone and earth at the place where the public highway ran across the ravine, and made a better way than existed before the construction of the dam. The public used it, and it was for a time maintained and repaired by the overseer of highways of the road district. Held, That the owner of the dam was not chargeable with the maintenance and repair of the highway, and was not liable for the value of mules whose death was occasioned by the causeway being out of repair.</p>

Error from Franklin District Court. The material facts are stated in the opinion. Judgment at the October term, 1887. The plaintiff P. P. Elder brings the case here.

Error from, Miami District Court. Action to quiet title. Judgment for the defendant Wea Gas, Coal and Oil Company, on December 13, 1887. The Franklin Land Company brings the case here. The facts are stated in the opinion.

Error from, Greenwood District Court. The facts are stated iu the opinion. Judgment for plaintiff Martin, at the September term, 1887. The defendant Company brings the case here.

Error from Leavenworth District Court. The case is stated in the opinion. Judgment for the plaintiff Atchison, at the December term, 1887. The defendant Railway Company comes to this court.

<p> Original Proceeding in Habeas Corpus. </p> <p>The case is stated in the opinion, filed on April 4, 1890.</p>

Error from, Wabaunsee District Court. Partition. Judgment for plaintiff Hawks, at the March term, 1887. The defendants Stratton and two others bring the case here. The facts appear in the opinion.

<p> Error from Nemaha District Court. </p> <p>The case is stated in the opinion.</p>

Error from Pratt District Court. The material facts appear in the opinion. Judgment for plaintiff Doioell, at the January term, 1888. The defendants, Streeter & Bradbury, bring the case to this court.

<p>1. Contbaot, Not Written — Action. An action upon a contract not in writing, express or implied, must be brought within three years.</p> <p>2. Note — Joint Maher — Surety Pays — Action Within Three Tears. Where a joint maker of a promissory note, or his representative, pays the note, and then brings an action against the other maker, upon the ground that he is in fact only a surety, his action, although brought upon the note, must be mainly proved by parol evidence, because he must show by such evidence the amount he paid upon the note, the date of payment, that his joint maker is the principal, and that he is a surety only; therefore the action is founded on an unwritten and implied agreement of his principal, and must be brought within three years.</p>

<p> Error from Shawnee District Court. </p> <p>The case is stated ia the opinion.</p>

Error from Pratt District Court. The facts are stated in the opinion. Judgment for plaintiff Williams, at the January term, 1888. Defendant Lamont brings the case here.

<p>1. Continuance, Denied — Immaterial Error. Where a motion is made for a continuance in a criminal case on account of the absence of one of the defendant’s counsel, and it appears that he is represented by two attorneys at the time, it is not material error for the court to overrule the motion.</p> <p>2. Embezzlement of Deed — Information — Arrest of Judgment. An information, under § 84 of the crimes act, which charges that one G. S. then and there unlawfully, feloniously, and with the intent to defraud, did embezzle and convert to his own use a certain warranty deed, the property of M. 3. G., which said deed was in writing, being the act of M. 3. G. as grantor and made to G. S. as grantee, and duly acknowledged, purporting to convey and did convey the southeast quarter of section 29, township 23 south, of range 25 west, in the county of Hodgeman, is sufficient to support a sentence against a motion in arrest of judgment.</p>

Error from Wyandotte District Court. Action to recover on an insurance policy. Judgment for the plaintiff Thompson, at the December term, 1887. The facts appear in the opinion.

Error from Harper District Court. This action was brought- to enforce mechanics’ liens upon certain property in the city of Anthony, Harper county. The facts are as follows: J. T. Harris entered iuto a contract with E. J. Stewart on the 9th day of November, 1885, to erect for Stewart a two-story frame building upon lots 1 and 2 in block 46 of the city of Anthony, for the sum of $1,500.

<p>1. Tax Deed, When Liberally Construed and Upheld. Ordinarily, a tax deed should be strictly construed; but where a tax deed has been of record for more than five years, and the claimant under it has been in the actual possession of the property conveyed by it during all that time, making improvements thereon, and no person claiming to have any interest in the property at any time during the period that elapsed from the time when the taxes were first levied upon the property till after more than five years had elapsed from the time of the recording of the tax deed, has ever made any claim to the property as against the claimant under the tax deed, but only a person claiming under a quitclaim deed, executed after more than five years had elapsed from the date of the recording of the tax deed, and for the expressed consideration of only $1, has ever attempted to disturb the rights of the party claiming under the tax deed, and where such tax deed, if it were so construed as to make the facts therein stated correspond precisely with the actual facts, would necessarily be held' to be valid, such tax deed should be liberally construed for the purpose of upholding and enforcing it.</p> <p>2. Oeetieioate — Assignment—Part of Taxes. And further held, that the tax deed in question does not show affirmatively and upon its face that the tax-sale certificate was assigned for only a portion of the taxes remaining due and unpaid at the date of the assignment.</p> <p>3. --Sufficient Assignment. Where a tax deed executed in 1881, upon a tax sale made in 1871, for taxes levied in 1873, recites that the assignment of the tax-sale certificate was made by the county, and does not specifically say that it was made by the county clerk, held, sufficient.</p> <p>1. Macadam Tax — Sale—-Tax Deed. Although a “macadam tax” levied and assessed by a city of the second class is only a “special assessment for improvements,” yet it is such a tax that when certified by the city clerk to the county clerk, and placed on the county tax-roll, the property against which it is assessed may be sold for such tax, and a tax deed may be executed upon such sale.</p> <p>5.--And such a tax deed, if sufficient in form, will be prima facie valid.</p>

E'ror from Sedgwick District Court. Action to cancel a certain deed, and to quiet title. Judgment for defendants Elliott and another, at the May term, 1887. The plaintiff Wilkinson brings the case here. The facts appear in the opinion.

Error from Johnson District Court. Ejectment. The material facts are stated in the opinion. Judgment for plaintiff Warner, at the September term, 1887. The defendants, Tweedell and two others, bring the case here.

<p>1. City — Action for Damages — Competent Evidence. In an action against a oity for damages, for falling into an opening in the sidewalk, it is competent to show by parol evidence the length of time the street upon which this sidewalk in question was situated, had been open.</p> <p>2. Question — Answer, Not Responsive. When a proper question is propounded to a witness, but the answer thereto is objectionable, the remedy is by a motion to strike it out. (Hynes v. Jungren, 8 Kas. 391; Stone v. Bird, 16 id. 488; City of Wyandotte v. Gibson, 25 id. 236.)</p> <p>3. --Cross-Examination — Limits. The cross-examination of a witness should generally be confined to matters brought out in the examination in chief.</p> <p>4. --Claim, Disallowed. Held, That the record shows that the claim of plaintiff had been presented to the city council and disallowed, before this action was commenced.</p> <p>5. Physician — Worth of Services, May be Shown. It is competent for the plaintiff, in a suit for damages, to show by physicians living in the vicinity of his residence, what the services of an attending physician were worth, during his sickness which was the result of the injury, as a part of the element of his damages.</p> <p>6. Vebdiot, Sustained. The instructions of the court and the special instructions asked by the defendant below considered, and held, that no error was committed by the trial court, and that the verdict was sustained by sufficient evidence.</p>

Error from Wyandotte District Court. Ejectment. The facts are stated in the opinion. Judgment for plaintiff Geissler, on November 26, 1887. The defendants Stockton and Little bring the case here.

<p>1. Claim — No Assignment — No Privity — No Recovery. Where A is indebted to B, and B is indebted to 0 and promises to pay 0 when he obtains his money from A, and 0 has no legal or equitable assignment of B’s claim against A and no judgment against B, and there is no privity between O and A, 0 cannot recover from A the debt due from A to B.</p> <p>2. Railboad Company — Claim against County for Bonds — Action by Third Party, not Maintained. Where a railroad company has a claim against a county for the recovery of bonds upon a subscription to its capital stock, a creditor of the company, who is a stranger to the county and has no legal or equitable assignment of the claim of the railroad company, cannot maintain an action against the county to recover the bonds in payment of its claim against the railroad company prior to the rendition of a judgment against the company, and such a creditor is not entitled to maintain such an action against the county, although he joins as a defendant in the action the railroad company, which is indebted to him.</p> <p>3. County Bonds, Action for, Barred — Third Party — No Cause of Action. On the 13th of October, 1870, the board of county commissioners of Bourbon county subscribed for $150,000 of the capital stock of the Fort Scott & Allen County Railroad Company, of which the Fort Scott, Humboldt & Western Railroad Company is the successor. Upon the completion of the road-bed of the railroad company from Fort Scott to the western line of Bourbon county on or before the 1st day of July, 1872, the bonds of the county were to be issued to the railroad company in payment of the subscription. On the 6th day of June, 1871, S. entered into a written contract with the railroad company to grade and complete the road-bed in Bourbon county, and in payment thereof was to receive from the railroad company $125,000 of the bonds of that county. S. had no contract with the county; his contract being a personal one with the railroad company. S. performed his contract with the railroad company prior to June 30, 1872, and was entitled to payment from the railroad company under the terms of the contract. After the road-bed was completed, in June, 1872, the railroad company demanded of Bourbon county the bonds in payment of its subscription. The county refused to issue or deliver the bonds, and soon after burned them. Held, As the railroad company completed its contract with Bourbon county on or before June 30, 1872, and had demanded the bonds on that daté, its cause of action then accrued, and under the statute of limitations its action for the bonds or the recovery of the same was barred in five years. Held further, That so long as S. had no legal or equitable assignment of the bonds of the county from the railroad company, and so long as there was no privity between him and the county, he had no right or cause of action against the county for the bonds. Held also, That until S. had obtained a judgment against the railroad company, or a legal or equitable assignment of its claim for the bonds, he could not maintain any action against the county for the bonds, and joining the railroad company as defendant in such an action gave him no additional right or cause of action against the county.</p> <p>4. Action — Interest in Subject-Matter, Obtained Too Late to Prevent Bar. Where a plain tiff has no right or cause of action against a defendant, and no claim, title or interest in the subject-matter stated in his petition, and brings his action in a court that has no jurisdiction of the defendant, and when he is in all respects a stranger to the defendant, the pendency of such an action will not entitle him to the saving provisions of $ 23 of the civil code, although after the dismissal of his action he obtains such an interest in the subject-matter of the prior action as would entitle him to maintain an action thereon but for the statute of limitations.</p>

Error from, Geary District Court. Injunction denied, on August 29,1889; and order brought here for review. The facts are set forth in the opinion.

<p>1. Cboss-Examination — Practice. The general rule is, that when a witness makes statements on cross-examination, collateral to the examination or issue, they are to be taken as conclusive, and it is not admissible to contradict him by showing the statements to be false.</p> <p>2. Intoxicating Liquob — Nuisance—Evidence—Conviction, Not Reversed. A defendant was charged with keeping and maintaining a common nuisance, where intoxicating liquors were unlawfully sold by him. Upon cross-examination he admitted that he gave intoxicating liquors to a witness to drink, who testified against him, but stated that he treated the witness at a drug store, where he obtained the liquor, without making or giving any statement prescribed by the statute. Upon rebuttal, the prosecution proved that his evidence in regard to the statement was false. Held, That the admission of this evidence was not sufficient, under the facts disclosed, to reverse the conviction.</p>

<p> Appeal from Sedgwick Court of Common Pleas. </p> <p>The case is stated in the opinion. From a conviction at the November term, 1889, the defendant Bain appeals.</p>

<p> Appeal from Butler District Court. </p> <p>The case is stated in the opinion. From a conviction at the October term, 1889, the defendant Beardsley appeals.</p>

<p> Original Proceeding in Mandamus. </p> <p>Petition filed in this court on February 15, 1890. The facts are sufficiently set forth in the opinion, filed on May 10, 1890.</p>

<p>Public Moneys— Change of Depository, not Enjoined. A board of county commissioners cannot be prevented by an action of injunction from changing the depository of the public moneys of a county when in the discretion and judgment of the board it is deemed best that a change should be made. (National Bank v. Peck, ante, p. 643.)</p>

<p> Error from Miami District Court. </p> <p>The case is stated in the opinion.</p>

Error'from, Brown District Court. Action to quiet title. Judgment for the defendants, at the May term, 1888. The plaintiffs, Briggs and two others, bring the case to this court. The material facts are stated in the opinion.

Error from Jackson District Court. The material facts are stated in the opinion. Judgment for the defendant County Board, at the June term, 1887. The plaintiff Flint brings the case here.

Error from, Kingman District Court. On the 26th of November, 1889, and long prior to that time, George Gerson and Isaac Levy, partners under the firm-name of George Gerson On December 17, 1889, Joseph Gerson and George W. Eogers took the early morning train at Newton for Kingman, Gerson carrying with him his chattel mortgage, and also the deed to A. Cole, and Eogers carrying with him the two notes, one for $200 and the other for $500, against George Gerson & Co.; the train…

<p>Instbuoiions, Not Sufficient. The district court must give its instructions to the jury in writing, when requested so to do by either party; and the giving of them orally and having them taken down by a stenographer, and after the jury has retired having them written out by the stenographer, is not sufficient.</p>

<p> Error from Cowley District Court. </p> <p>The case is stated in the opinion.</p>

<p>1. Bicycle — Kansas Biver Bridge — City Ordinance, Not Violated. A person who rides on his bicycle across that part of the Kansas river bridge which is used for the passage of street cars, carriages, and other vehicles, does not violate $17 of city ordinance No. 861, of the city of Topeka, that reads as follows:</p> <p>“It shall be unlawful for any person to ride on any bicycle or velocipede upon any sidewalk in the city of Topeka, or across the Kansas river bridge. Any person violating this section shall, upon conviction thereof, be fined in a sum not less than one dollar nor more than ten dollars for each offense.”</p> <p>2. --Construction of Ordinance. Whenever a city ordinance can be so construed and applied as to give it force and validity, this will be done by the courts, although the construction so put upon it may not be the most obvious and natural one, or the literal one.</p>

Error from Lyon District Court. The ease is stated in the opinion. Judgment for the plaintiffs, Coman and another, at the May term, 1887. The defendant County Board, brings the case here.

<p> M'ror from Johnson District Court. </p> <p>Action to recover certain lots in the city of Olathe. Judgment for plaintiffs, Johnson and another, at the January term, 1888. The defendant Giffen brings the case here.</p>

Mrror from Wabaunsee District Court. On the 26th day of August, 1885, Charles P. Deatherage and William I. Ewart, under the firm-name of Deatherage & Ewart, commenced their action against Eli Henderson et al., upon an account for lumber and building materials, and also to enforce their alleged lien. On December 16, 1885, a trial was had by the court, and judgment given in favor of Henderson, denying plaintiffs’ lien.

<p> Error from Wabaunsee District Court. </p>

<p> Error from Atchison District Court. </p> <p>The case is stated in the opinion.</p>

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

<p> Error from, Sumner District Court. </p> <p>The case is sufficiently stated in the opinion.</p>

Error from Atchison District Court. Judgment for defendant Railroad Company, at the September term, 1887. The plaintiff Dickerson brings the case here. The material facts appear in the opinion.

Error from Lyon District Court. The opinion states the case. Judgment for the defendants, at the September term, 1887. The plaintiff Gray brings the case to this court.

Error from Butler District Court. Ejectment. Judgment for plaintiffs, at the October term, 1887. The defendant, Bergman, brings the case to this court. The material facts appear in the opinion.

<p>1. Medical Services — Sufficient Bill of Particulars. A bill of particulars for medical services, which sets out the items of each visit and a general allegation that the plaintiff is a practicing physician, engaged in the practice of medicine, and has been so engaged for ten years last past, is sufficient.</p> <p>2. Empiricism, Act to Prevent — Quack — No Recovery for Medicines. Under chapter 68 of the Laws of 1870, “An act to protect the people of Kansas from empiricism and to elevate the standing of the medical profession,” it is unlawful for a person to furnish medicine, as a practicing physician, unless authorized to practice medicine, in accordance with the provisions of the statute; and a person so furnishing medicine cannot recover in a civil action for medicine so prescribed, as a physician.</p>

Error from Cloud District Court.' On the lltk day of February, 1886, Park B. Pulsifer, as administrator with the will annexed of David Robertson, deceased, John Robertson, Isabel Temple and Mattie Ellis filed their petition against Mary J. Paddock, and Alice Bourgeois, Anna Mealy, Margaret Reid, David Robertson and Jessie Snowey, which, omitting caption, is as follows: “Plaintiffs say: That on the 11th day of February, 1886, the plaintiff, Park B. Pulsifer, was duly…

Error from, Woodson District Court. The opinion contains a sufficient statement of the case. The rulings brought here by the plaintiff Water Works Company for review, were made at the October term, 1889, of the district court.

<p>1. Supebintendent oe Insueanoe — Action May be Controlled by Court. The determination of the superintendent of insurance in granting, refusing, or revoking authority to a mutual fire insurance company to do business, on account of insolvency or non-compliance with the laws of the state, is not final, but his action in that regard is subject to inquiry and control by the court.</p> <p>2. Company, When Not to Insure Property Outside of State. A mutual fire insurance company organized under chapter 132 of the Laws of 1885, and which has no guaranty fund for the protection of its policyholders, cannot legally issue policies of insurance on property situate outside of the state.</p>

<p> Error from Marshall District Court. </p> <p>The case is stated in the opinion.</p>

Error from Morris District Court. The case is sufficiently stated in the opinion. Judgment for the defendant Company, at the April term, 1887. The plaintiff Earlywine brings the case to this court.

Error from Wyandotte District Court. On the 2d day of February, 1883, William Fray brought his action against the Union Pacific Railway Company, for damages for personal injuries. It has been twice brought to this court, and twice remanded for a new trial. (31 Kas. 739; 35 id. 700.) The third trial was begun on the 14th day of December, 1887, before the court with a jury. The jury returned a verdict for Fray, and assessed his damages at $2,000.

Original Proceeding in Mandamus. This is an action of mandamus, commenced originally in this court by the Chicago, Kansas & Western Railroad Company against the board of county commissioners and the… Held: and all acts of said board based thereon, were and are, by reason thereof, illegal and void. “4.