Volume 45 — Kansas Reports

Hh'ror from Lyon District Court. Garnishment proceeding. The matter was submitted to the court upon the following agreed statement of facts: “ In an action pending in the district court of Lyon county, Kansas, wherein H. J. McFarland, assignee, was plaintiff, and Anna Bate and M. K. Moulton, partners doing business as Bate & Moulton, were defendants, after judgment in favor of the plaintiff and the return of an execution wholly unsatisfied issued on such judgment, an order…

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

ProsecutioN for selling intoxicating liquors contrary to the ordinances of the City of Salina. The defendant Cooper appeals from a judgment against him at the June term, 1890. The opinion states the facts.

<p> Error from Pratt District Court. </p> <p>The opinion states the nature of the action, and the facts.</p>

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

Error from Atchison District Court. This was an action in tbe court below brought by Luther C. Challiss against the City of Atchison, its mayor and councilmen, to enjoin them from exercising any corporate jurisdiction or authority over the north half of the northwest quarter of section 7, township 6, range 21, in Atchison county. After the defendant had filed its answer, the case was tried before the court without a jury.

<p> JEh'ror from Harvey District Court. </p> <p>The opinion contains a sufficient statement of the case.</p>

M'ror from Atchison District Court. AgtioN for rent. Judgment for defendants at the April term, 1888'. The plaintiff Storch comes here. The facts are stated in the opinion.

<p>Verdict, Received in Absence of Counsel. Where during the progress of a trial, and after the jury had retired, counsel for defendant asks permission of the judge to leave the court-room and go to his law office, with the understanding that the judge is to send a bailiff for him when the jury returns into court, and the judge fails to send word to counsel, and receives the verdict of the jury in his absence and that of the defendant, and the verdict is read aloud to the jury, and no dissent made to the question as to whether it is its verdict, and the jury is not polled, held, that such omission upon the part of the trial judge is not such an error as will cause a reversal of the judgment.</p>

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

<p>1. Taxes — Redemption. Where land is sold for taxes September 5,1882, the period of redemption expires with September 5,1885.</p> <p>2. Notice, Not Bad on Face. Where a county treasurer by mistake in computation of time gives in a redemption notice one day more than three years for redemption, the notice will not be held to be bad on its face.</p> <p>3. Deed — Setting Aside, When. Where the redemption notice gives the full statutory time of three years for redemption, and one day more, and the last day named in the notice is Sunday, the owner will not be permitted to set aside a deed for the land following such notice, without showing that he was misled by the notice, and that he offered to redeem on the last day named in the notice, or if the last day was Sunday, on the next day.</p>

<p> Motion for Rehearing. </p> <p>The opinion, filed January 10, 1891, sufficiently states the case.</p>

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

<p> Error from Reno District Court. </p> <p>EjectmeNT. Judgment for defendant Hutchinson, at the March term, 1888. The plaintiff Merrill brings the ease to this court.</p>

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

<p>Cities — License Tax on Doctors. Section 3 of chapter 40 of the Laws of 1881 confers express authority upon cities of the second class to pass an ordinance providing for the levy and collection of a license tax upon doctors practicing medicine in such cities. (City of Newton v. Atchison, 31 Kas. 151, followed.)</p>

<p>1. Value oe Land — Incompetent Evidence. In an action to recover the value of a tract of land, appropriated by a railway company for a right-of-way, which, at the time of its condemnation, was not platted as a part of a city, but was in use as farming land, it is erroneous to permit witnesses to testify to the value of lots on the principal business street of a city near by. The value of such lots furnishes no proper measure by which to ascertain the value of the land taken.</p> <p>2. -Evidence — Error. In such a case, it is also error to permit a witness to testify to the size of lots upon said business street, the number of such lots contained in an acre, and the value of such lots.</p> <p>3. Junx, to Value Land, and How. The jury are to value the land appropriated as a whole in the condition it was immediately before it was condemned, and are not to consider what it would bring if divided into lots and blooks, and made a part of the city.</p>

<p>1. Judgment against Insurance Company — Enforcement. Where a general judgment is rendered against a mutual fire insurance company and its property generally, but the insurance company was doing two kinds of business, a first class and a second class, and the policy upon which the judgment was rendered belonged to the second-class business only, and the company at the time had no second-class assets, the judgment and a general execution issued thereon and following the judgment are valid, and may be enforced as to any property belonging to the insurance company.</p> <p>2. Judgment — Questioning Execution. While a void execution or an execution issued upon a void judgment may be questioned in any court or anywhere, yet a valid execution follpwing a valid judgment, though irregular or issued upon an irregular judgment, cannot be questioned except in the court from which it was issued.</p>

<p>1. MiiíItaby Resebvation — Building Not a Part of Realty. Buildings erected on a military reservation by a post-trader, under authority from, the war department, for the purposes of trade, do not 'become a part of .the realty, and the owner, when he ceases to be post-trader, may remove and dispose of the same as his own property.</p> <p>2. Buii/ding, Erected by Post-Tradm — Regulations. The military authorities are invested with power to prescribe rules and regulations for the erection, maintenance and removal of buildings erected by a post-trader on a reservation ; but such rules and regulations when made are subject to waiver and modification.</p> <p>3. Tbadeb — Liable for Rent. A formal regulation was made that an owner could not sub-let such buildings to another without permission of the military authorities, and one who was an owner of buildings that had been erected by a post-trader on a military reservation leased the same to a trader for a stipulated rental, without express permission but with the knowledge and acquiescence of the military authorities, and the trader occupied the same and paid rent to the owner for about four years, when an order was made by the commanding officer that the owner should remove the buildings within a reasonable time. The order was not enforced, but the trader, with the knowledge of the officers, was permitted to use the building as before. On account of this order, the trader declined to pay rent to the owner, although he continued in the uninterrupted possession of the buildings, with full knowledge that the owner demanded the payment of rent. Held, That the action of the officers did not relieve the trader from liability to the owner for the use and occupation of the buildings.</p>

<p>1. Condemnation Proceeding — Opinion—Error. In the trial of a ease, upon appeal from an award of damages in condemnation prooeed- . ings, the court permitted the plaintiff, as a witness, to answer the question: “How much less was the farm worth immediately after the railroad went through, per acre, than it was before?” Held, That it was error, as it involved substantially the subject-matter the jury were called upon to determine.</p> <p>2. Cross-Examination — Values—Error in Admitting Statement. Where a witness is asked, upon cross-examination, a question as to his knowledge of values, and volunteers the following statement: “A neighbor of mine right north of me has one hundred and twenty acres, and was offered six thousand dollars;” and the court refused the request of the defendant to withdraw such statement from the jury, held, error.</p>

<p> Error from Atchison District Cov/rt. </p> <p>The facts are fully stated in the opinion.</p>

<p>Quo Wabbanto — Name of Candidate — Evidence. If, for a certain office, there is but one person running of a given name, say the name of G. L. Calvert, he should be permitted to show, in a proper action brought therefor, that ballots cast, bearing respectively the names “ Calvert,” “A. L. Calvert,” and “ 3. C. Calvert,” were meant and intended by the voters so casting them to have been cast for G. L. Calvert.</p>

<p> Appeal from Riley District Court. </p> <p>The opinion, filed on December 6, 1890, contains a sufficient statement of the case.</p>

Error from Sedgwick District Court. The opinion states the case. February 7, 1890, judgment for plaintiff Champion, who brings the case to this court.

Error from Wilson District Court. The opinion states the facts. Judgment for plain tiff Willits, on November 4, 1887. The defendant Company brings the case to this court.

Error from Washington District Court. James G. Woodbum brought this action in the district court of Washington county against Clay, Robinson & Co., George S. Elwood, and the Washington National Bank.

Error from Coffey District Court. The opinion states the case. Judgment for plaintiff Love, on July 29, 1887, for $325. The defendant Company alleges error, and comes to this court.

<p> M'rorfrom Republie District Court. </p> <p>The opinion states the case.</p>

Error from Lyon District Court. ACTION to foreclose a mortgage. Judgment for the plaintiff Loan Association, at the September term, 1888, for the amount of its mortgage; but judgment for the defendant Watson, quieting his title to the land mortgaged. The plaintiff brings the case here. The material facts are stated in the opinion.

ProseoutioN for a violation of the prohibitory liquor law. The facts are stated in the opinion. Judgment for The State at the May term, 1890. The defendant Wright appeals.

<p>1. Beqistbation oe Votebs — Valid Statute. That portion of §15 of chapter 80 of the Laws of 1879, which prescribes a criminal punishment for improperly registering the names of voters, is not unconstitutional or void.</p> <p>2. Cbiminai. Intent — Sufficient Information. A criminal information setting forth that B., the city clerk of a city of the second class, registered the name of a person as a voter who did not appear in person, and was not present and did not give his name, age, occupation, or place of residence, may be sufficient, without expressly alleging any criminal intent.</p> <p>3. Intent, When Presumed. When the commission of an act is made a crime by statute, -without any express reference to any intent, then the only criminal intent necessarily involved in the commission of the offense is the intent to commit the interdicted act; and in suoh a case it is not necessary to formally or expressly allege such intent, or any intent, but simply to allege the commission of the act, and the intent will be presumed.</p>

Embezzlement. From a conviction and sentence, September 24, 1889, the defendant Griffith appeals. The facts are set forth in the opinion.

<p>Ceiminai, Peoseoution —Acquittal —No Appeal by The State. In a criminal prosecution, -where a jury has been impaneled and some evidence has been introduced upon the part of the state, and the state rests, and afterward asks leave of the court to introduce further evidence, and the court, without passing upon the application, concludes that the statute under which the defendant is prosecuted is unconstitutional, and orders a judgment of acquittal and discharges the jury, such judgment is conclusive, and this court cannot, on appeal by the state, set aside or reverse the judgment of acquittal.</p>

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

Original Proceeding in Mandamus. This is an action of mandamus commenced in this court on October 8, 1890, by Bertha Knox and Lilly Knox, both colored, by their next friend, Jordan Knox, to compel The Board of Education of the Qity of Independence and S. M. Nees, superintendent of the public schools of that city, to permit the plaintiffs to attend the school-rooms of the public schools of that city to which they allege they are entitled, according to their grade, regardless…

Error from, Finney District Court. ActioN to recover money and to foreclose a sub-contractor’s lien. Judgment for defendant Barr, at the May term, 1888. The plaintiffs, Cunningham and others, bring the case to this court.

<p>Conveyances of Land —Mciio?i to Set Aside — Defect of Parties Defendant. In an action to set aside certain conveyances of real estate, it was alleged that the plaintiffs, L. and husband, owned and resided on a tract of land as their homestead, and that while so occupying it the husband executed a conveyance of the same to H., without the consent of his wife ; that subsequently H. and his wife, Lydia H., executed a deed with the usual covenants of warranty to P. The action to set aside both of these conveyances was brought against H. and P., without joining as a defendant Lydia H., one of the grantors of P. Held, That she is a necessary party in the action to cancel the deed in which she joined as grantor, and that the petition disclosed upon its face a defect of parties defendant.</p>

Error from Sedgwick District Court. INJUNCTION. The opinion states the facts. Judgment for plaintiff Eichholtz, on December 22, 1887. The Society and others bring the case to this court.

Error from Bourbon District Court. The opinion states the case. Judgment for plaintiff Holman, at the May term, 1888. The defendant Company brings the case here.

Error from Chautauqua District Court. The opinion states the case. Judgment for the plaintiff Mouriquand, on November 26, 1887. The defendant Company comes to this court.

Error from Harper District Court. . The opinion states the facts. Judgment for the plaintiffs, Thrailkill and wife, at the October term, 1887. The defendants, Gee and wife, bring the case to this court.

Hrror from Bussell District Court. REPLEVIN. Judgment for plaintiffs Bankin and three others at the April term, 1888. The defendant Smith brings the case here. The facts sufficiently appear in the opinion.

<p> Error from, Qeary District Court. </p> <p>The opinion states the facts.</p>

<p>1. Conteaot — Breach — Measure of Damages. In an action by the buyer against the seller for breach of contract for the delivery of corn, the measure of damages is, as a general rule, the market value of the corn at the time and place of delivery, less the contract price.</p> <p>2. Bunn — Measure of Damages. In such case, when the seller, after his contract of sale is made, notifies the buyer that he will not fill the contract, held, that in the absence of any evidence on the part of the defaulting seller, that the buyer, after notice that the seller would not fill the contract, and before date of delivery, conld have purchased corn in the market of the place of delivery upon such terms hs to have mitigated his loss, the measure of damages remains the same.</p>

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

<p>Petition in Ekbob, Too Late — Case, Dismissed. Under the statutes of this state, no proceeding to reverse, vacate or modify any judgment or final order can legally be commenced in the supreme court except within one year after the making or the rendering of such judgment or final order, unless the party instituting the same has in the meantime been under some legal disability.</p>

Ei'ror from Chautauqua District Court. The opinion states the case. Judgment for plaintiff Don-elson, on December 10,1887. The Railroad Company brings the case here.

<p>Action to Quiet Title— Cross-Bill — Decree for Defendants. In an action by the plaintiffs to quiet title, where it appeared that they purchased the land of the agents of the owner on the 6th day of June, and the defendants bought the same land, and the landlord’s interest In the lease, of the owner, without previous knowledge of the sale, on the 8th, taking a bond for a deed, which was properly acknowledged, and duly recorded on the 18th of the same month; and the defendants entered upon the land about the same time, with the consent of the tenant, who had a lease of the premises for one year, to dig coal; and afterward, on hearing of the sale by the agents, the owner made a deed for the same land to the plaintiffs, which recited the fact that it was given subject to a certain mortgage and the bond for a deed given to the defendants ; and the plaintiffs purchased the interest of the tenant in the premises, but permitted him to remain in possession, and there is no other evidence of possession upon the part of plaintiffs, held, that as against the plaintiffs, the defendants were entitled to a decree quieting the title to the land.</p>

Error from, Wilson District Court. INJUNCTION. Judgment for plaintiff Johnson, at the September term, 1887. The defendant Holmberg brings the case here. The opinion states the facts.

Error from Jackson District Court. ACTION to quiet title. Judgment for plaintiff Bishop at the November term, 1887. The defendant Douglass brings . the case here. The facts appear in the opinion.

<p>Tendee, Not Kept Good- — No Offer to Confess Judgment — Judgment for Costs, Not Error. The plaintiff commenced an action before a justice of the peace for $160. The defendant immediately tendered to the plaintiff $35, and afterward filed a bill of particulars, neither admitting nor denying the plaintiff’s claim nor asking judgment for any amount, but showing a claim in his own favor and against the plaintiff for $65. The case was afterward taken to the district court on appeal and was there tried before the court and a j ary, and a verdict was rendered in favor of the plaintiff and against the defendant f.or §26.25. The defendant then filed a motion asking that because of the aforesaid tender all the costs made in the case after the return of the summons in the justice’s court should be taxed against the plaintiff, which motion was overruled by the court, and judgment was then rendered in favor of the plaintiff and against the defendant for the amount of the verdict and for costs of suit. Held, That as it was not shown that the tender was kept good or that any offer was ever made by the defendant to confess judgment for any amount, no error was committed by the' trial court in overruling the defendant’s motion and in rendering the aforesaid judgment for costs.</p>

Error from Sedgwiclc District Court. ACTION to foreclose a mechanic's lien. Judgment on July 11, 1888. The plaintiff Dumber Company brings the case to this court to determine the priority of liens. The material facts 4are stated in the opinion.

<p> Error from Wyandotte District Court. </p> <p>The material facts are stated in the opinion.</p>

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

Error from Shawnee District Court. ACTION to recover damages for breach of contract to convey land. Judgment for the plaintiff Blaisdell, at the April term, 1888. The defendants, Gammon and another, come to this court. The opinion contains a sufficient statement of the case.

<p>The Sueeeme Covet, Not a Moot Court■ — Case Dismissed. Where, after a case has been brought on petition in error to the supreme court, it has been settled and all the costs in the case provided for, so that no decision which the supreme court could render upon the merits would be of any benefit or could answer any beneficial purpose so far as any of the parties are concerned, the case will be dismissed from the supreme court, although in the settlement of the case it was agreed between the parties that the ease should remain in the supreme court and be decided by the court upon its merits.</p>

Error from Anderson District Court. The opinion contains a sufficient statement of the facts. To reverse an order granting a temporary injunction, made on July 9, 1888, the defendants, Harvey and two others, bring the case here.

■ Jjh'ror from Leavenworth District Court. ActioN to specifically enforce the performance of a contract alleged to have been entered into between the parties on or about the 19th day of March, 1887, by which Charles J. Boss purchased lots 23 and 24, in block 74, in Leavenworth, Kansas, for the sum of $8,000.

<p>Pleading — Res Judicata — Demurret — Error. Where, in an action brought to have certain shares in the capital stock of a corporation assigned to the plaintiff, upon the ground that the same had antece-dently been purchased of the defendant, but never properly assigned to him ; and the defendant answered that all the issues involved in the case had been previously settled by the special findings, verdict and judgment, in another action, between the same parties and in the same court; and a demurrer was interposed to such answer and sustained by the court below : Held, Error.</p>

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

<p> Error from Russell JDistriet Gourt. </p> <p>The opinion, filed January 10, 1891, states the case.</p>

Error from Bourbon District Court. ON the 6th day of September, 1887, James S. Condiff, as administrator of the estate of C. W. Condiff, deceased, brought his action against The Kansas City, Fort Scott & Gulf Railroad Company to recover $10,000 damages for injuries received by Charles W. Condiff on the 3d day of November, 1885, from which injuries he died soon after.

<p>1. Stbeet — Obstruction—Damages—Recovery. An abutting lot-owner cannot recover damages by reason of the location of a railroad, duly authorized by the city council, along one of the regularly laid out streets of a city, unless there has been a practical obstruction of the street in front of his premises and he is virtually deprived of access to his property. (K. N. & D. Rly. Go. v. Guyhendall, 42 Kas. 234, followed.)</p> <p>2. Damages — No Recovery, When. The failure alone of a railroad company to properly ballast its road-bed, where sufficient space is left in the street for ordinary vehicles and teams to pass in front of abutting property, will not authorize a recovery for damages alleged to have been sustained for the destruction of one’s right of ingress and egress, where there is no evidence to show the terms and conditions upon which the privilege to build such railroad was conferred by the city authorizing the same.</p>

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

Error from Anderson District Court. On the 2d day of May, 1888, Rich Township, in Anderson county, brought its action against The Kansas City & Pacific Railroad Company, to enjoin the board… Held: the vote canvassed, an order made that the county clerk subscribe for $25,000 of the capital stock of the railroad company, for and on behalf of the township, and the subscription was made as ordered on the regular stock-book of the railroad company furnished him for that purpose.

Error from Atchison District Court. Theee actions were brought in the district court of Atchison county, to enjoin the issuance of improvement bonds and the levy and collection of special taxes to pay for the construction of a sewer which had been built and completed in the city of Atchison by contractors Shaw & Downing.

<p>Replevin' — Pleading—General Denial — Sale—Evidence ■ — ■ Judgment. In an action of replevin by a mortgagee for the possession of mortgaged property, the defendant in possession thereof may, for the purpose of defeating the plaintiff’s right of recovery, prove, under the general denial, a sale of the property by her to the plaintiff subsequent to the execution and delivery of the mortgage, and his refusal to take the goods and pay her the contract price. Further held, That in such an action, where the plaintiff is permitted to retain the goods, the defendant may plead such sale, and if maintained on the trial, may recover judgment against the plaintiff in the alternative for a return of the property, or the value of her interest therein.</p>

At the session of the court in January, 1891, the judgment of the court below herein was' affirmed. The plaintiffs in error filed a motion for a rehearing, which the court denied at its session in March following, and then filed the opinion, infra.

Error from Norton District Court. The opinion states the case. Judgment for defendant Snow, at the February term, 1890. The plaintiff County Board brings the case here.

Error from Cowley District Court. The opinion states the facts. Judgment for defendants Smith and another, at the December term, 1887. The plaintiffs G. B. Shaw & Co. bring the case here.

<p> Appeal from Wyandotte District Court. </p> <p>The opinion states the case. From a conviction and sentence on May 20,1890, the defendant Lawson appeals.</p>

<p> Originál Proceeding in Mandamus. </p> <p>The material facts are stated in the opinion, filed on February 7, 1891.</p>

<p>Chattel Mobtoage, Not Rendered Void — Good Faith. Where a chattel mortgage is given npon a stock of groceries, safe, fixtures, pony and delivery wagon, which contains a stipulation that the property mortgaged shall remain in the possession of the mortgagor until default in the payment of the debt thereby secured; and by agreement outside of the mortgage, the mortgagor is permitted to dispose of the stock in the usual course of business, and pay out of the proceeds of the sales, monthly, or oftener, if the business would permit, certain sums upon the debt secured, such mortgage is not thereby rendered void as against creditors, but should be upheld, if entered into in good faith.</p>

<p>Judgment, Petition to Vacate— Order, Not Final. Where, under ¶¶ 4669 and 4671 of the General Statutes of 1889, a petition is filed to vacate a judgment, and the court makes an order vacating the judgment temporarily, such order is not final, and error will not lie therefrom.</p>

<p>1. Lottebx — Scheme. A scheme for the distribution of prizes by chance is a “lottery.”</p> <p>2. Scheme — Playing Policy — Lottery. A scheme, generally known as “playing policy,” whereby an association sells for five cents, or any other specific sum of money, certificates or tickets, which entitle the purchaser to a lead pencil of trifling value, and also permits such purchaser to select certain numbers, say 3-9-13, which, if all drawn by a blindfolded boy from a revolving wheel, in which several numbers are placed, entitle the person purchasing the certificate or ticket to a prize of money, much larger in amount than he has paid for his certificate or ticket, is a “lottery.”</p>

<p>Election — Returns and Ballots as Evidence. The returns of the election officers are prima Jade evidence of what they purport to show with regard to the number of votes cast and for whom cast, although the ballots themselves, when properly identified, are still better evidence. But whenever it is shown that the ballots have been wrongfully tampered with, they lose their controlling character as evidence; and when there is nothing but discredited ballots to contradict the election returns, the returns themselves will be held to be conclusive.</p>

Error from Shawnee District Court. ACTION to restrain the collection of certain taxes. Judgment for the defendants on January 5, 1888. The plaintiff Railway Company brings the case to this court. The material facts are stated in the opinion.

<p>X. Taxes — Valuation Increased without Notice, Unauthorized. An arbitrary increase of the valuation of property and the extension of an additional tax thereon by the county clerk, after the assessment had been returned, the taxes levied and paid, without notice to the owner of such action, is unauthorized, and the taxes charged illegal.</p> <p>2. Injunction, Maintained. The owner is entitled to maintain injunction to restrain the illegal tax, and the fact that the owner first applied to the county officers to cancel and set aside the illegal tax, and failed to appeal from their refusal, will not defeat the remedy. (pity Ely. Co. v. Roberts, just decided.)</p>

<p>Judgment — Record Destroyed — Proceeding to Establish — Practice. In a proceeding under chapter 92, Laws of 1883, to establish the record of a judgment destroyed by fire, a defendant in the original action, and a party to the proceeding to establish the judgment, has the right to establish the record of any judgment that he may have obtained, by parol evidence, and to plead and prove any new matter that may have ocourred since the rendition of the judgment sought to be established, which operates in whole or in part to extinguish such judgment. .</p>

<p>Res Judicata — Setting Aside Deed — Fraud. Where, in an action brought to set aside a quitclaim deed to certain real estate claimed to have been obtained by fraud, it appeared upon the trial that the title to the property had been quieted in another, in an action previously commenced and terminated in the same court, against the plaintiff in this action, who was a non-resident and upon whom service had been duly made by publication, held, that the findings and judgment in the former case are conclusive and binding upon the plaintiff below in this case, on the question of title to the real estate in question; and the plaintiff below having had no interest in the property in controversy at the commencement of this action, no fraud could be committed in obtaining a deed to property to which he had no title at the time.</p>

<p>1. Caebieb — Ejection of Trespasser. Removing a trespasser from a train of oars while the train is in motion, when the train is moving very slowly, is not negligence or wantonness per se.</p> <p>2. Ne0liqenoe — Question for Jury. In oases of ejection of trespassers from trains in motion, the question of negligence or wantonness is usually a question of fact for the jury.</p>

<p> Error from Bourbon District Court. </p> <p>The case is stated iu the opinion.</p>

Error from Wyandotte District Court. On the 27th day of January, 1887, Mary J. Bradbury commenced her action against The City of Kansas City to recover $10,000 for personal injuries alleged to have been received by her on the 29th day of August, 1886, on Seventh street in that city, by reason of a loose board or plank in the sidewalk upon that street flying up, tripping and throwing her down. Trial had at the September term, 1887, before the court with a jury.

Appeal from Marshall Distriot Court ■ Prosecution for embezzlement. Judgment for The State, at the May term, 1890. The defendant Hodges appeals. The facts are stated in the opinion.

Error from Atohison District Court. Action of injunction brought by The AtchisonUnion Depot and Railroad Company against Luther C. Challiss in the district court of Atchison county. After hearing the testimony, the court made the following findings of fact and conclusions of law: “findings of fact. “1.

<p>Instbuotions — Verbiage and Repetitions. When the instructions of the trial court embody the law applicable to the facts, although stated with much verbiage and with frequent repetitions, there is no cause for reversal.</p>

<p>Ooubts — Jurisdiction—Torts Committed Outside of State. An action for the conversion of certain corn and corn stalks, grown and standing upon land in the Indian Territory, leased in violation of law and 'the treaty between the United States and the Cherokee nation, brought by a citizen of this state against a person residing in such territory, but personally served with summons, cannot be maintained in this state.</p>

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

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

<p>1. Stbeet Impbovement, Not Enjoined. A city of the second class, having authority to improve a street, cannot be enjoined from making such improvement by the abutting property owner upon the ground that the work is being defectively performed.</p> <p>2. Injunction — No Cause of Action Stated. Where a petition for an injunction to enjoin a city of the second class from improving a certain street therein alleges as a ground for the order, that the character of the work is such that it will necessitate a special tax against the abutting property owners to pay therefor, and the ordinance under which the improvement is being made is attached to the petition as a part thereof, and said ordinance does not provide for any special tax to pay for such improvements, and the petition does not allege that any such tax has been levied nor any act done indicating that such a tax is about to be levied, held, that the petition, in this respect, does not state a cause of action.</p>

<p>City Bonds to Aid Railroad Companies — Statutes Construed. Section 5 chapter 99, Laws of 1885, (Gen. Stat. of 1889, ¶ 797,) does not control or limit the amoont of bonds to be issued under the provisions of chapter 67, Laws of 1886, (Gen. Stat. of 1889, ¶ 1305,) authorizing cities of the first and second class to issue bonds for the purpose of aiding railroad companies in securing depot grounds and terminal facilities.</p>

Error from Brown District Court. The opinion states tbe facts. Judgment for the defendant Davenport, at the January term, 1886. The plaintiff Smith and husband bring the case here.

M'ror from Wabaunsee District Court: INJUNCTION to restrain the collection of certain taxes. Judgment for the defendant sheriff and others, at the June term, 1888. The plaintiff Fowler and another bring the case to this court.

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

<p>Conteaot, Not Completed — Specific Performance. To establish a contract for the leasing of real estate, where the negotiations are con-dncted entirely by letters through the mails, and the plaintiff proposes to lease certain land for five years, and give security for the payment of the taxes, and the defendant replies that he can have the same for three, and there is no unqualified acceptance of such proposition and no security furnished for the payment of such taxes, held, that it is not a completed contract and the plaintiff is not entitled to a specific execution of the lease.</p>

<p>Demuebeb to Evidencie, Error in Sustaining. It is error for a trial court to sustain a demurrer to the plaintiff’s evidence, when such evidence establishes a clear prima facie case in her favor. {Mo. Pac. Bly. Go. v. Goodrich, 38 Kas. 224; Gardner v. King, 37 id. 671.)</p>

<p>1. Judgment Set Aside' — Discretion of Court. Where an application is made to set aside a judgment rendered upon default at the same term at which the judgment is rendered, and the trial court vacates the judgment and permits the defendant to file an answer asserting a meritorious and valid defense, its ruling in that regard is clearly within its sound judicial discretion.</p> <p>2. Statutes ov Limitation — • Presumption — Repose. In this state statutes of limitation are regarded not as statutes of presumption, but as statutes of repose, and a trial court may, in its sound judicial discretion, permit a defendant to file an answer out of time, pleading the statute of limitations.</p> <p>3. Appeal — No Undertaking, When. Executors, administrators and guardians who have given bond in this state, with sureties, according to law, are not required to give an undertaking on appeal or proceedings in error. (Civil Code, $ 577.)</p>

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

<p>County-Line Road — Damages — Appeal. In awarding damages for the location of a county-line road, each board of county commissioners of the respective counties between which the road is to belaid out acts separately, and an appeal from the award made by either board must be taken within thirty days after the order appealed from is made, regardless of the time when final action is taken by the other board.</p>

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

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

<p>Shbbiiíi?, When Not Liable to Amercement. An execution reciting a judgment rendered October 14, 1886, is not supported by proof of a judgment entered October 14, 1885, and a sheriff is not liable to amercement for failure to serve and return such execution in sixty days.</p>

<p>1. Account — Verified by Affidavit — Taken as True. The correctness of an account filed before a justice of the peace, duly verified by the affidavit or affirmation of the party, his agent or attorney, shall be taken as true, unless the denial of the same be verified by the affidavit of the opposite party, his agent or attorney. (Justices’ Act, $84.)</p> <p>2. Justice’s Coubt — Appeal—Right to Prove Set-Off. A defendant, in an action brought against him upon an account, duly verified before a justice of the peace, has the right in the justice’s court, and also upon appeal in the district court, to introduce evidenoe to prove any set-off or counterclaim which he may have against the plaintiff, although he has not denied the correctness of the account sued on by affidavit.</p> <p>3. Appeal — Amendment of Pleadings — Discretion of Court. Where, in an aotion before a justice of the peace, both the plaintiff and the defendant file their bills of particulars or accounts, and the case is subsequently appealed to the district court, and a trial is commenced in that court before a jury, upon the original papers on which the case was tried-before the justice of the peace, amendments to the pleadings at that time by either party is largely in t'he discretion of the trial court. This court will not interfere, unless that discretion has been abused.</p>

Error from Chase District Court. T. B. Nesbit brought an action against George W. Cos-per before a justice of the peace, on July 1, 1886, to recover $49.25, alleged to be due on a written contract, of which the following is a copy: “Article of agreement entered into on this 2d day of November, 1882, between T. B. Nesbit, of the town of Bazaar, Chase county, Kansas, of the first part, and Geo.

Error from Shawnee District Court. The opinion states the nature of the action, and the material facts.' Judgment for the defendant Association and others, at the April term, 1888. The plaintiff Hentig comes to this court.

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

<p>1. Supbeme Coubt- — Jurisdiction. Section 1, chapter 215, Laws of 1889, (Gen. Stat. of 1889, ¶ 4612,) does not oust the supreme court of jurisdiction of proceedings in error pending in that court prior to the passage of that statute.</p> <p>2. Oases, Followed. The cases of Muscott v. Hanna, 26 Kas. 770, and Simpson v. Smith, 27 id. 565, followed.</p>

<p>Petition in Ebeob — Amendment Not Permissible — Order Not Reviewable. A judgment was rendered in the district court, and afterward a motion for a new trial was made and overruled. Within a year thereafter, the oase was brought to the supreme court, but the petition in error did not assign the overruling of the motion for a new trial as a ground of reversal. More than four years after the order overruling the motion for a new trial had been made, an application was made to amend the petition in error by assigning the making of this order as an additional ground of error. Held, Under § 556 of the civil code, that the amendment was not permissible,- and that the order was not reviewable.</p>

Error from Pratt Distriot Court. The case is sufficiently stated in the opinion, infra, filed at the session of the court in February, 1891.

<p>Townships — Taxation for Road Purposes. Under ¶7084, Gen. Stat. of 1889, township trustees are authorized, with the advice and consent of the board of county commissioners of their respective counties, to levy a tax for township, road and other purposes; and the fact that such taxes are set out and extended upon the tax-roll in detail, as so many mills for road purposes, and so many mills for township bridge purposes, instead of grouping the tax together under the single head “For road purposes,” is not such an irregularity as will invalidate the tax, so long as the amount levied is not ip excess of that authorized by law. ^</p>

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

PkosecutioN for murder in the first degree. From a conviction at the March term, 1890, the defendant Beatty appeals. The material facts fully appear in the opinion, filed on February 7, 1891.

<p>1. Decedent Killed by Engine on Railway Track — Demurrer to Evidence. Where, in an action by an administrator against a railway company for negligently killing his decedent, it appeared that the decedent was passing along the double track of the defendant’s road in a westerly direction within the limits of a city, and discovered a train coming toward him, and, to avoid said train, stepped from the track upon which he was walking to the one immediately north, and, before he had taken more than two or three steps, was struck and killed by the engine of a train going west, and the accident did not occur in a public street of the city, and the train was not running at an unusual rate of speed or in violation of any ordinance of the city, and a demurrer was sustained to the evidence by the trial court, held, that it was not error.</p> <p>2. Res Gestíe — Declarations. Declarations, to be admissible as part of the res gestee, must be contemporaneous with the principal facts which they serve to qualify or explain. {The State v. Montgomery, 8 Kas. 351, followed.)</p>

<p> Error from Haney District Court. </p> <p>The opinion states the nature of the action and the material facts.</p>

Error from Shawnee District .Court. EjectmeNT. Judgment for the plaintiff Korman at the September term, 1888. The defendant Cartwright brings the ■case to this court. The opinion states the material facts.

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

<p>Criminal Case —Appeal from, a Justice. To effect an appeal in a criminal trial before a justice of the peace, upon a judgment of conviction, the appellant must, within twenty-four hours after the rendition of the judgment, enter into a reoognizanoe to the state, in the sum and with sureties to be fixed and approved by the justice before whom the trial was had. Simply going to the office of the justice.of the peace at the dinner hour, with a recognizance, during the statutory time allowed, is not sufficient.</p>

At the May term, 1890, the defendant Elliott was found guilty of a violation of the prohibitory liquor law, and sentenced to pay a fine of f 100, the costs of the prosecution, and to be imprisoned thirty days in the county jail. He appeals. The facts appear in the opinion.

Error from Brown District Court. ON the 7th day of September, 1889, Grace G. Kemper commenced her action against A. X. Campbell, mayor of the city of Horton, and Joseph Madeau, street commissioner of that city.

Error from Harvey District Court. The opinion states the case. Judgment for plaintiff Nei-man, at the January term, 1888. The defendant Railway Company comes here.

Error from Leavenworth District Court. The case is sufficiently stated in the opinion. Judgment for plaintiffs Herley and others, on November 10, 1888. The Railway Company comes to this court.

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

Error from Cheyenne District Court. The opinion states the facts. Judgment for defendant School District No. 1, at the May term, 1888. The plaintiff School District No. £ brings the case here.

<p> Fh'ror from Atchison District Court. </p> <p>The opinion states the facts.</p>

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

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

<p>1. Demubbeb, Overruled — No Exception — No Review. Where the defendant demurs to the plaintiff’s petition, and such demurrer is overruled and no exception taken, and afterward a trial is had and j udgment rendered against the defendant, and the defendant brings the case to the supreme court, held, that the ruling of the district court on the demurrer will not be considered by the supreme court.</p> <p>2. Case, Followed. The case of Hoopes v. Implement Co., just decided, with respect to alleged errors of the trial court in its findings upon the evidence, referred to and followed.</p>

<p>Account Book — Entry of Credit after Statutory Bai — Evidence. An entry of credit, made in a book of accounts by a creditor upon an account with his debtor after a cause of action thereon is barred by the statute of limitations, is of itself insufficient to establish such a partial payment on the account as will take it out of the statutory bar.</p>

<p>Supreme Coubt — Record—Evidence. Where the record brought to the supreme court does not show that it oontains all.the evidence upon which the findings and judgment are based, it cannot be said that they are without sufficient support.</p>

<p>School Distkiot, Divided — Control of School Property — Injunction. A school district was divided by an extension of city limits, and the school-house being in that part of the district taken into the city by the extension, the board of education attempted'to take possession of and exercise control over it; the officers of the school district refused to allow this to be done, and a temporary injunction was allowed, restraining them from any interference with the action of the board of education; but on motion of the school-district officers, the order of injunction was vacated: Held, that the trial court did not commit error in vacating such order, as it was not equitable.</p>

<p> Error from, Shawnee District Court. </p> <p>The opinion contains a sufficient statement of the case.</p>

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

<p>1. Evidence Supports Findings. The evidence in this case examined, and held sufficient to support the findings of fact made by the trial court.</p> <p>2. Mobtgaoe — Foreclosure—Appearance by Attorney — Effect. Inafore-closure proceeding against a non-resident defendant, who employs an attorney authorized to practice in the court in which the case is pending to take charge of his case, without limiting his authority, and such attorney makes a general appearance, held, that such appearance binds the defendant, and gives the court jurisdiction over his person.</p>

Error from Allen District Court. This was an action brought by D. E. Pettigrew against C. Iv. Mills, James Mills, and others, to obtain possession of certain real estate situate in Allen county. All of the defendants answered and disclaimed any interest in the premises, except' James Mills. Judgment was rendered in favor of the plaintiff for the possession of the premises, and for $120 for rents and profits. James Mills excepted, and brings the case here.

Error from Clay District Court. The facts are fully stated in the opinion. Judgment for the plaintiff Company at the September term, 1888. Defendant Pierce brings the case here.

Error from, Finney District Court. JudgMENT for plaintiff Moon, on January 21, 1888. The defendant Myer brings the case here. The facts are stated in the opinion.

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

Error from Wyandotte Eistriet Court. The opinion states the case. Judgment for the plaintiff Samuelson at the June term, 1888. The defendants, Richardson and others, bring the case here.

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

<p>X. Contbaot — Action—Answer—Amendment—Fraudulent Representations. In an action to recover a balance due on a contract for land, the defendant, in his answer, alleged that he was induced to enter into the contract by false representations respecting the land, made by the plaintiff and his agent, and pleaded a rescission of the contract. Afterward he asked leave to amend his answer so as to allege that the false representations were made with intent to deceive him; that he relied on them, and aver that he was damaged by reason of the land not being as represented in the sum of $1,850, which amendment, over the objection of the plaintiff, was allowed by the court upon condition that the defendant pay the cost in the case, taxed at $75.60, and the cause was then continued until the next term of the court. Held, That such amendment did not prejudice the substantial rights of the plaintiff, and therefore its allowance was not error. (Civil Code, $ 140.)</p> <p>2. Evidence Sustains Verdict. The evidenoe examined, and held sufficient to sustain both the general and the special verdicts.</p>

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

Error from Greenwood District, Court. This was an action brought before a justice of the peace of Greenwood county, on March 18, 1887, by The Gale Sulky Harrow Manufacturing Company against Isaac Stark, for the recovery of $65 and interest, on the following' promissory note, to wit: “$65. Greenwood Co., State op Kansas, ) August 7, 1885.

<p>Error from. Johnson District Court.</p> <p>The opiuion states the case.</p>

Error from, Scott District Court. The opinion states the facts. Judgment for plaintiff Service, at the May term, 1888. The defendants, Hardesty and others, bring the case to this court.

<p>1. Cattle Guabds — Duty of Railroad Company. It is the duty of a railroad company operating a railroad to see that the proper cattle-guards exist wherever the track of the operated railroad enters or leaves inclosed or fenced land, whether such railroad company owns or is operating the railroad under a lease.</p> <p>2. Damages — Claim for Driving Out and Herding Stock. In an action for damages caused by the neglect of a railroad company operating a railroad which it owns or leases to keep the cattle-guards in repair at the place the track enters and leaves the inclosed or fenced land of the complaining party, that party has the right to include in his claim for damages the value of his services and that of his children in driving out and herding stock to prevent further and additional damages.</p>

<p> Terror from Butler District Court. </p> <p>The material facts are fully stated in the opinion.</p>

<p>1. RaiIíBoad — Right-Of-Way-—Speculative Damages. “ In assessing damages done to laud by reason of the appropriation of a right-of-way through it for a railroad, the liability of teams being frightened, or that additional oare by the land-owner may be necessary in the future as to such teams, by reason of the proximity of the railroad, does not of itself constitute any basis for special compensation. Such damages are speculative, and not the proper subject of inquiry and damage.” (A. & D. Rly. Co. v. I/yon, 24 Kas. 745.)</p> <p>2. Opinion Evidence — Proper Question. In an action for damages in a railroad right-of-way case, it is not error to permit the following question: “State what this land was worth just after the line was taken by the railroad as a whole tract, taking into consideration the damages the railroad did the land ?</p> <p>3. Instbuotions, to be Followed. The instructions of the trial court are the law of the case, for the jury to obey and follow. A finding against the instructions of the court cannot constitute any portion of a judgment. (U. P. Rly. Go. v. Hutchinson, 40 Kas. 61.)</p>

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

Error from, Shawnee District Court. PARTITION. Judgment for plaintiff Davies, at the September term, 1887. The defendants, Joakheok and another, bring the case to this court. The opinion states the material facts.

Error from Linn District Court. Action brought by Snyder to restrain the collection of a certain tax. Trial by the court July 24, 1888, on an agreed statement of facts, and judgment for the plaintiff. The defendant county board and county clerk bring the case to this court. The opinion states the facts.

<p> Error from Ellis District Court. </p> <p>The facts sufficiently appear in the opinion.</p>

Error from Coffey District Court. ON the 11th day of October, 1884, Mehitable 8. Webster commenced her action against Charles McLean, the minor child of Wm. McLean, deceased, to recover the sum of $1,050, and interest, and also to subject the southwest quarter of sec1 tiou 34, township 21, in range 15, to the payment of said claim. Upon the same day she obtained an order of attachment, which was levied upon the' real estate above described. Service was made by publication.

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

Error from Montgomery District Court The opinion states the material facts. Judgment for plaintiff Walsh, on January 21, 1888. The defendant Railway Company brings the case to this court.

<p>1. Deed — Estate upon Condition. A deed will not be construed to create an estate upon condition, unless the language to that eSect is so clear that no room is left for any other construction.</p> <p>2.-An Absolute Conveyance. A warranty deed that does “hereby sell and convey unto R., to have and to hold to the said R. and to his heirs forever,” an undivided half of a tract of land “in consideration of clearing the whole of all taxes now due, and tax claims of all kinds for which the land has been sold, or is now subject to sale,” is an absolute conveyance, and on its delivery vests title in the grantee, and is not a deed upon condition precedent or subsequent.</p>

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

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

Error from Wyandotte District Court. ACTION by Barker to restrain the collection'of certain taxes. The facts are substantially stated in the opinion.

Error from Wyandotte District Court. Action to restrain the collection of a certain tax. Judgment for plaintiff Barker, at the September term, 1889. The defendant County Board and others bring the case here. The opinion states the material facts.

Error from, Wyandotte District Court. Action brought by Stewart, on November 10,1888, against the County Board and others, to restrain the collection of a certain tax. Judgment for the defendants for costs, on September 22, 1889. The plaintiff brings the case to this court. The material facts are stated in the opinion.

<p>1. Eminent Domain — Compensation—Benefits. Where a right-of-way for a railroad is condemned through a tract of land, the owners’ damages cannot be diminished by any benefits likely to accrue from the construction of the railroad to that portion of the tract not taken. (Bid. Co. v.Boss, 40 Kas.'598.)</p> <p>2. Vebdiot, Not Disturbed. Errors that are not prejudicial will not warrant the court in disturbing the verdict.</p>

Error from, Jachson District Court. The opinion contains a sufficient statement of the facts.. Judgment for the defendant County Board, at the June term, 1888. The plaintiff Railroad Company brings the case here.

Error from Wiohita District Court. Injunction to restrain the collection of a certain tax. Judgment for the defendants, at the June term, 1890. The plaintiff Banh brings the case to this court. The opinion states the material facts.

<p> Original Proceeding in Mamdamus. </p> <p>Petition filed in this court August 18, 1890. The opinion herein, filed April 11, 1891, contains a sufficient statement of the case.</p>

Error from Leavenworth District Court. Ejectment. Judgment for defendants Hannon and others, at the April term, 1887. The plaintiff Douglass brings the case here.

Error from Cloud District Court. The opinion contains a sufficient statement of the case. Judgment for plaintiff Case for $300, on November 20,1888. The defendant Cady comes to this court.

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

The facts are sufficiently stated in Insurance Go. v. Amide, ante, pp. 74, et seq., and in the opinion, infra, filed at the session of the court in June, 1891.

The facts are sufficiently stated in Axman v. Dueker, ante, pp. 179, et seq., and in the opinion, infra, filed at the session of the court in June, 1891.

<p>V¿gating Judgment — Civil Code— Provisions, Construed. Subdivision 2 of § 542 of the civil code, giving the supreme court authority to reverse, vacate or modify an order that grants or refuses a new trial, has no application to an order vacating or suspending a judgment temporarily only, under the provisions of \\ 568, 570, 572 and 573 of the civil code.</p>

Error from Edwards District Court. This was an action brought in the district court of Edwards county on February 5,1887, by James P. Weelts against The Phenix Insurance Company of Brooklyn, New York, upon a fire-insurance policy issued by the defendant to the plaintiff on December 24, ,1885, to recover for an alleged loss by fire of the insured property.

<p>1. Questions, Not Considered by the Supreme Court. Motions and questions not ruled upon by the trial court, or not otherwise disposed of, will not be noticed by this court.</p> <p>2. Conflicting Eyidenoe — Practice. When a cause is submitted to the court for trial and a jury waived, and there is a conflict of evidence on every material fact, and there is some evidence to sustain the general findings of the trial court necessarily included in the judgment, such findings and judgment will not be disturbed.</p>

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

Error from Cloud District Court. The Chicago, Iowa & KaNsas Railroad Company instituted condemnation proceedings for a right-of-way over William 8. Townsdin’s premises. The commissioners assessed his damages at $149.75. He appealed to the district court. The jury assessed his damages at $194.90, and judgment was entered thereon, with the costs. The railroad company contends that Townsdin should be taxed with the costs, under § 528 of the civil code.