Volume 46 — Kansas Reports

<p>1. Ejectment-^- Title of Claimant. In an action in the nature of ejectment, the plaintiff must recover upon the strength of his own title^ and not upon the weakness of the title of the defendant who has the actual possession of the real estate.</p> <p>2'. Indian Title — Descent of Beal Estate. In 1860, under the tribal organization of the Shawnee Indians, the descent of real estate was cast in accordance with the custom and decision of that tribe.</p> <p>3. Evidence — Custom of Tribe. Where a plaintiff relies upon title to real estate alleged to be cast by descent upon his grantor in accordance with the custom and decision of an Indian tribe, he must establish the custom or decision of the tribe as to descent or distribution at the time of the death of the former owner or possessor from whom he claims his grantor inherited the property.</p> <p>4. - Possession of Indian Land — Ejectment, Not Maintained. Where a plaintiff brings his action in the nature of ejectment against a defendant in the actual possession of Indian land, properly patented to a member of the Shawnee tribe (now deceased), under the provisions of a treaty between the United States and the Shawnee Indians, concluded on the 10th day of May, 1854, and the act of Congress of March 3, 1859, and such defendant claims color of title and possession under a deed from the chiefs of the tribe, approved by the secretary of the interior, the prior possession of such Indian land by the plaintiff is not sufficient for him to recover upon as against such a defendant, if such plaintiff fails to show any title or other right of possession on his part.</p>

Error from Atchison District Court. The facts are set forth in the opinion. Judgment for the defendant City, at the June term, 1888. The plaintiff Parker brings the case to this court.

Error from Finney District Court. Enoch E. • Jenkins recovered a judgment against Franh Davis of $900, in the district court of Finney county.

Error from Sedgwick Court of Common Pleas. Action to foreclose mechanics’ liens. The material facts are stated in the opinion. Judgment in the court below, at the May term, 1889.

Error from Cowley District Court. The facts are sufficiently stated in the opinion. Judgment for the defendant Elliott, at the December term, 1887. The plaintiff Bank brings the case to this court.

Error from Wyandotte District Court. Action brought by Hammerslough and about 40 others, to restrain the collection of certain taxes. Judgment for the defendant City, on November 17,1890. The plaintiffs bring the case to this court. The opinion states the facts.

<p>1. Action on Account — Verification—Answer. Where a civil action is commenced before a justice of the peaoe upon an account for work and labor performed, which account is duly verified by affidavit, such account will be taken as true under \ 84 of the justices’ act, unless the denial of the same be verified by affidavit. (Railway Co. v. Gould, 44 Kas. 68; Baughman v. Hale, 45 id. 453, 25 Pac. Rep. 856.)</p> <p>2. -Set-off — Practice. In such a case, a defendant who has no set-off or counterclaim to file or prove cannot, in the absence of a verified denial, show that the account sued on is incorrect or has been extinguished by payment.</p>

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

Error from Allen District Court. The opinion states the material facts. Judgment for plaintiff Merriman, at the June term, 1890. The City brings the case here.

<p>1. Action on Contbaot — Amendment of Petition — Quantum Meruit. The plaintiff, who alleges the construction of a building under a written contract with the defendant, and who asks a recovery of the contract price, may subsequently amend the petition so as to claim the actual value of the materials furnished and the work performed' upon such terms as the court may deem just.</p> <p>2. ----Measure of Recovery. Where the building is erected upon and becomes a part of the realty of the defendant, and although defective in same respects is of real and substantial value to the defendant for the purposes intended, the plaintiff may recover from the defendant what the building is reasonably worth to him.</p> <p>3. - Evidence — Demurrer. The testimony in the case found to be sufficient to sustain the overruling of a demurrer to plaintiff’s evidence.</p>

Error from Butler District Court. Action by Griggs against Hoy, to recover the possession of certain hay. Trial before Hon. T. A. Kramer, judge pro tem., and a jury, at the October term, 1888. Verdict for the plaintiff; new trial denied, and judgment rendered for the plaintiff. The defendant brings the case here. The facts appear in the opinion.

Prosecution for obtaining money under false pretenses. Erom a conviction at the March term, ,1890, the defendant Clark appeals. The opinion states the facts.

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

<p>1. Pbobate Couiit — Claim, Good Against a Demurrer. Where a claim, presented to a probate court for allowance, alleges that the debtor therein named owes the party presenting the claim the sum of $377.62 for commissions paid on the sale of machines, for which notes were taken that are uncollectible, and copies of salid notes are attached, showing the amount of the same, and the amount of the commissions paid thereon is also shown, and said claim js verified, and has attached thereto contracts which provide that when commissions have been paid on notes that are uncollectible they shall be refunded, held, that such claim is good against a demurrer, and that the action of the court in sustaining a demurrer thereto was erroneous.</p> <p>2. PiGEADiNa — Improper Praotiee. Under our statute, which provides that claims presented to the probate court for allowance shall be heard summarily and without the form of pleading, it is not a proper practice to interpose a demurrer to a claim therein.</p>

EiTor from Ottawa District Court. The opinion states the material facts.' Judgment for the defendants, on August 30, 1888. The plaintiffs, Hazleton and others, bring the case to this court.

Error from Elh District Court. Ti-ie opinion states the material facts. Judgment for defendants, Willard and another, at the October term, 1888. The plaintiff, Pettigrew, brings the case here.

<p> Error from Finney District Court. </p> <p>The opinion states the material facts.</p>

Error from Harvey District Court. The opinion states the facts. Judgment for the defendant Bank, at the September term, 1888. The plaintiffs, Hardy and others, bring the case to this court.

<p> Error from Decatur District Court. </p> <p>Injunction. Judgment for the plaintiff City, at the April term, 1888. The defendant, Hitchcock, comes to this court. The opinion states the facts.</p>

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

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

Error from Pottawatomie District Court. A sufficient statement is contained in the opinion. Judgment for the defendants, Crowl and three others, at the February term, 1888. The plaintiffs, Ellis and another, bring the case here.

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

<p>Injunction — Petition—Verification. In an action for an injunction, it is not necessary that the petition should be sworn to, if the application upon which the injunction is asked is properly verified.</p>

Error from Barton District Court. Action to recover damages for bodily injuries. Judgment for plaintiff, McGinnis, at the October term, 1888. The defendant Company brings the case here. The opinion states the facts.

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

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

<p>1. Eminent Domain — Damages—Reduction of Verdict — New Trial. When a trial court, in an action to recover damages for the condemnation of a right-of-way taken for public use, arbitrarily reduces the amount of the verdict rendered by a jury, from $3,327.08 to $2,589, and the record assigns no reason for such a reduction, and the record shows the jury adapted the highest and most extreme estimate of value, depreciation and damage in the verdict returned, such judgment will be reversed, and a new trial granted.</p> <p>2-, Excessive Damages —• General Rule. While there may be cases where the trial court may properly reduce the amount of a verdict on account of some particular fact, or on some element of damage, or for some error in the computation, or when the reduction is occasioned by some other sufficient reason, the judgment may be upheld; yet, the general rule is, when the damages returned by a jury are so excessive as to show the verdict was rendered under the influence of passion or prejudice, it will be set aside, and the questions in issue submitted to the judgment of another jury.</p>

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

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

<p> Error from Atchison District Court. </p> <p>The opinion states the case. Judgment for plaintiff, Wallace, at the January term, 1888. The defendant Company brings the case to this court.</p>

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

Error from Atchison District Court. Oisr the 16th day of January, 1885, the firm of Buzan, Hough & Co., of Wetmore, Nemaha county, was indebted to Howell, Jewett & Co., of Atchison, to the amount of $5,300 and interest, for five accepted drafts, dated in January, 1885.

Error from Shawnee District Court-. J. M. Adams brought an action against The Atchison, Topeka & Santa Fé Railroad Company for the value of a mule, which, it is alleged, was killed by the engine and cars of the railroad company, at a point on the road which was not inclosed by a good and lawful fence. The case was tried with a jury, which rendered a verdict in favor of the plaintiff and assessed his damages at $125, and awarded $25 as attorney’s fees.

<p>1. Mechanics’ Lien — Foreclosure—Pleading. Where, in a ease for the foreclosure of a lien for material furnished, there is no allegation in the body of the petition that the contract to furnish materials was with the owner, but the petition refers to the lien statement as attached thereto, and as a part thereof, and said lien statement clearly shows the contract to furnish material was with the owner, held, that the petition sufficiently shows that the contract was with the owner.</p> <p>2. Petition — Value of Materials. A petition, in such a case, which states that the plaintiff furnished lumber and materials to the amount of 1537.93, sufficiently states the value of such lumber and materials, without any further allegation of value.</p> <p>3. Evidence, Sustains Finding. The evidence examined, and held sufficient to sustain the finding of the court, that the contract for furnishing material was with the owners of the land upon which the building was erected.</p> <p>4. - Sufficient Title. To obtain a lien for material furnished, under ¶ 4733, General Statutes of 1889, it is not necessary to show that the party to whom the material was furnished had a complete title when the contract for the material was made. It is sufficient if, at that time, he has equitable title.</p>

Error from Chase District Court. The material facts are stated in the opinion. Judgment for plaintiff, Sauble, at the June term, 1888. The defendants, Drinkwater and another, bring the case here.

Error from Douglas District Court. On October 6,1879, William, E. Rork filed with the Board of County Commissioners of Douglas County his bill for the refunding of certain tax-sale certificates. On July 1, 1880, he filed an amended bill of particulars, covering 30 items of claim.' On November 3, 1880, the matter came up for hearing before the board of county commissioners, and the same was denied and rejected.

Ftrror from Shawnee District Court. Judgment for the defendant Company, at the January term, 1888. The plaintiff, Root, brings the case here. The opinion states the facts.

<p> Motion for Rehearing. ■ </p> <p>The opinion, filed on April 11, 1891, states the case.</p>

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

Error from Wyandotte District Court. On the 25th day of January, 1887, L. J. Early commenced his action against the Inter-State Consolidated Rapid Transit Railway Company to recover $3,000, because of the construction of a double-track railway on Sixth street, in Kansas City, Kansas, whereby it was alleged that the ingress to and egress from plaintiff’s premises on Sixth street were destroyed. Trial had before the court with a jury.

<p>1. Execution — Leroy, Not Invalidated■ — Priority of Lien. In a proceeding to determine and adjust the priorities of certain liens existing against the real property of a debtor, it was found that an execution had been taken out on the judgment first rendered, within one year after its rendition, and levied upon land subject to a mortgage; but it was erroneously appraised by excluding the amount of the mortgage debt, and the execution creditor directed the sheriff not to advertise and sell under the illegal appraisement. The levy was made upon the whole estate, and not upon a mere equitable interest. Within the succeeding year other judgments were obtained, and the proceeding to subject the mortgaged land of the debtor to the payment of the liens, and to determine the respective priorities of the same, was begun and tried. Held, That the existence of a mortgage upon the land, or the illegal appraisement of the same, or the direction of the execution creditor to the sheriff not to advertise and sell under such appraisement, did not invalidate the levy, but the levy as made preserved the preference and priority of the lien of the judgment first rendered.</p> <p>2. - Return of Execution. During the trial it was ascertained ■ that the sheriff had neglected to sign his return made upon the execution, and the court allowed him to amend by signing his name thereto. Held, Not error.</p> <p>3. Pleadings — No Error in Amending. In the answer of the judgment creditor who obtained the judgment first rendered, the f$ct that a levy had been made was not stated, and during the trial the court permitted him to amend, and plead and prove the levy that was made. Held, That the court did not abuse its discretion in allowing the amendment, and the fact that the amendment was not formally written out after it was allowed is not sufficient ground for a reversal.</p>

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

Error from Sumner District Court. Action brought by the City of Wellington to quiet its title to certain real estate. Each of the defendants demurred to the plaintiff’s petition, on the ground that it did not state facts sufficient to constitute a cause of action. Trial at the November term, 1887, Hon. R. B. Shepard, judge pro tern., presiding. The court sustained the several demurrers, and the City brings the case to this court. The material facts are stated in the opinion.

Error from Jackson District Court. The opinion states the facts. Judgment for the defendant, Redden, on December 24,1888. The plaintiff, Hentig, brings the case here.

<p>1. City — Liability—Civil Engineer — Compensation for Services. Where R., a civil engineer, and two others, are appointed by a city as a committee to superintend the construction of water-worlrs in and for the city, and R. is appointed because of his knowledge and experience as a civil engineer, and any two of the committee have the authority to act, and they all enter upon the discharge of their duties under the appointment, but they do not all do the same amount of work, and afterward the work for which they were appointed is all performed and completed, and the city accepts and receives the same, held, that R. may then maintain an action against the city for compensation for his own individual services, without joining with him the other two members of the committee as plaintiffs.</p> <p>2. -Misjoinder of Causes — Demurrer. Further held, That several causes of action were not improperly joined in the action, and that the question whether several causes of action were stated in the petition, and not separately stated and numbered, cannot be raised or presented by a demurrer.</p> <p>3. - Employes of City — Recovery for Services. In a case, such as is mentioned in No. 1 of this syllabus, the members of the committee are not such public officers as are required to perform their services without compensation, where no compensation had previously been provided for; but they are agents and employes of the city, who may recover reasonable compensation for their services after the services have all been performed and accepted by the city.</p> <p>4-. - Services Performed — Payment. Where services have been fully and completely performed for and at the request of a city, and have been accepted and received by the city, the city is then under legal and moral obligation to pay for the same whatever they are reasonably worth, and whatever irregularities may have intervened in the original employment.</p>

Error from Comanche District Court. The opinion states the case. Judgment for the defendant City, at the July term, 1888. The plaintiffs, Ryan and another, bring the case to this court.

Error from Chase District Court. Ejectment. Judgment for the defendants, Madden and another, at the June term, 1888. The plaintiff, Ryan, brings the case to this court. The facts appear in the opinion.

Error from Wyandotte District Court. The opinion states the material facts. Judgment for plain- * tiff, Vichroy, at the September term, 1888. The defendant Railway Company brings the case to this court.

<p> Original Proceeding in Habeas Corpus. </p> <p>The opinion, filed May 9, 1891, contains a sufficient statement of the case.</p>

A COPY of the information referred to in the opinion, (caption omitted,) is as follows: “In the name and by the authority and in behalf of the state of Kansas, I, J. V. Beekman, county attorney in and for the said county of Chautauqua, come now here and give the court to understand and to be informed, that on the 23d day of August, 1889, at and within the said county of Chautauqua and state of Kansas, the above-named defendant, F. Keifer, then and there unlawfully, willfully…

<p>Findings, Unsupported — New Trial. When a jury return answers to special questions, which are essential to a recovery, but in fact unsupported by any evidence, the trial court should sustain a motion for a new trial.</p>

Error from, Cowley District Court. The material facts are stated in the opinion.' The temporary injunction complained of was granted September 1,1890.

Error from Osage District Court. The opinion contains a sufficient statement of the case. The order discharging the attachment was made at the November term, 1888.

Error from Chautauqua District Court. Action to recover damages for killing a cow. Judgment at the June term, 1888, for the plaintiff, Kocher, for $25 damages, and $31.25 attorney’s fee. The defendant Company brings the case to this court.

<p> Error from Norton District Court. </p> <p>Action to recover on certain promissory notes. Judgment for defendant, Ryan, at the September term, 1888. The plaintiff Welch brings the case here. The opinion states the facts.</p>

<p>Review —Failure to Move for New Trial. Errors occurring during the trial cannot be considered by the supreme court unless a motion for a new trial, founded upon and including such errors* has been made by the complaining party, and acted upon by the trial court, and its ruling excepted to, and afterwards assigned for error in the supreme court.</p>

M'ror from Harvey District Court. The opinion states the facts. Judgment for defendants Hodgson and three others, January 23, 1889. The plaintiff, Rogers, brings the case here.

<p>1. Bubden on? Pbooe — No Cause for Reversal, When at the trial a party voluntarily assumes the burden of proof, it is not cause for the reversal by this court of a judgment rendered against him, that the burden of proof was cast by the pleadings on the other party.</p> <p>2. --Harmless Error. The admission of immaterial evidence is not cause for reversal.</p>

Hrror from Shawnee District Court. The opinion states the nature of the action and the facts. Judgment for defendants, Metzger and six others, on April 17, 1888. The plaintiff, Redden, brings the case here.

Prosecution for perjury. At the May term, 1889, the court sustained a motion to quash the indictment. The State appeals. The opinion states the facts.

Original Proceeding in Quo Warranto. On the 29th day of April, 1890, the following petition, omitting caption, was filed in this court:… Held: at the time said canvass was made, and at the time the defendant entered upon the discharge of the duties of said office, the defendant was ineligible to be elected to said office, and is ineligible to hold the same, for the reason that at the time said election was held, and at the time the defendant pretended to qualify as such…

Error from Wilson District Court. The opinion states the material facts. Judgment for the plaintiff, Small, at the September term, 1888. The defendant Companies bring the case here.

<p>1. Mechanics’ Lien — Enforcement—Parties. In an action to foreclose a mechanics’ lien, all lienholders and encumbrancers should be made parties; and a lienholder who is not made a party in the first instance is entitled, upon application, to come in at any time before final judgment, and, by an answer in the nature of a cross-petition, set forth tils claim of lien, and ask to have the same foreclosed.</p> <p>2. -Withdrawal of Suit. In such a case, his right to proceed to a final determination of his lien will not be defeated where the plaintiff’s petition is held upon demuyrer to be insufficient, or where there is a compromise or withdrawal of any claim for a lien by the plaintiff or other lienholder who is a party in the action.</p>

<p>Exemption — Tools and Stock in Trade. Tinners’ tools and stock in trade necessary to carry on the trade of a tinner, and used for that ■purpose, and being the only means of support for the owner and his family, are exempt from seizure and forced sale under the eighth subdivision of § 3 of the exemption law.</p>

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

<p>Insveanoe] — Application, Parol Evidence to Vary. Where an application for insurance has been reduced to writing, and the applicant has had an opportunity to read the same, but signs it without reading it, and there is no fraud practiced, and the applicant afterward receives the policy of insurance based upon such application, and retains it for several months without objection, he cannot, in an action brought upon a note given for the premium on such policy, vary or contradict the statements in the written application by parol evidence.</p>

Error from Crawford District Court. The case is stated in the opinion. Judgment for the plaintiff Company, on September 15, 1888, for $98.44. It brings the case to this court.

Error from McPherson District Court. The opinion states the facts. Judgment for plaintiff, Tyler, at the January term, 1889. The defendants, Engstrom and another, bring the case to this court.

<p>1. Assault with Intent to Kill — Erroneous Instruction. Where a defendant is charged with an assault with a deadly weapon with intent to kill, under the provisions of ¶ 2159, Gen. Stat. of 1889, and the evidence of the prosecution tends to establish that offense, and the evidence of the defendant tends to show that he shot off the deadly weapon (a pistol) into the ground with no intention to harm, hurt or kill any one, and that no one was shot, struck or hurt thereby, it is error for the district court to instruct the jury that they might convict the defendant of an assault with intent to commit manslaughter.</p> <p>2. Defendant — Personal Presence. It is a violation of §207 of the criminal code to try any person accused of felony, unless he is personally present throughout the trial. {The State v. Myrick, 38 Kas. 238.)</p>

<p>Alleged Ebbobs — No Material Error. Certain alleged errors with regard to offers to introduce evidence, and the court’s refusal to permit such evidence to be introduced, examined, and held, that no material error was committed.</p>

Error from Harper District Court. Action upon a promissory note. Trial at the October term, 1888, and verdict for defendant, Moore. The plaintiff Company brings the case here. The facts appear in the opinion.

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

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

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

Error from Barber Bistriot Court. Proceeding to recover damages for a railroad right-of-way. Trial at the February term, 1888, before Hon. Loren Edwards, judge pro tern., and a jury. Verdict for plaintiff, Easley, for $427.33 damages; new trial denied, and judgment rendered for the plaintiff. The defendant Company brings the case here.

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

<p>Ceeek — Apprehended Pollution■ — No Injunction. The apprehended fouling or pollution of a stream of water in the future by the sewage of a part of a city from sewers, which have been legally, scientifically and properly constructed, but which has not yet taken place, and of which there is no immediate or imminent danger, and which depends upon a contingency that may not happen, does not present a case for an injunction.</p>

Error from, Allen District Court. Beplevin. J udgment for defendant, Martin, at the March term, 1888. The plaintiff, Cunningham, comes to this court. The facts are stated in the opinion.

Error from Sherman District Court. The opinion states the nature of the action and the material facts. Judgment for plaintiff, Leonard, on May 21,' 1888, for $600 damages. The defendant Company brings-the ease here.

<p>1. Election — Not a Legal Voter. A man who filed a homestead claim on land in Oklahoma territory, and made a settlement and improvements thereon, in and after the month of June, 1889, and inténded to make said claim his home, and who returned to his former residence in Comanche county, in this state, for a temporary purpose, intending to go back to his claim in Oklahoma, was not a legal voter at an election held in Comanche county on the 5th day of November, 1889.</p> <p>2. - Not Legal Voters. Persons who filed homestead claims on land in Oklahoma territory, and made settlement and improvements thereon, during and after the month of June, 1889, and who intended to make said homestead claims their homes, and who returned to their former residences in Comanche county, in this state, for a temporary purpose, and agreed to stay and vote at an approaching election if paid for their time, and who voted at said election, and left Comanche county the next day, and have ever since resided in Oklahoma, were not legal voters at an election held in Comanche county on the 5th day of November, 1889.</p> <p>3. Cattle Men — When Not Legal Voters. Cattle men employed on a ranch situated in the Indian Territory, south of the state, working by the month, and who had resided out of the state for more than 35 days prior to the election, and who intended to work on such ranch as long as they were employed, and who had no families residing in Kansas, were not legal voters at an election held in Comanche county, in this state, on the 5th day of November, 1889.</p> <p>i. Bbibeby — Illegal Ballot. When a voter testifies that he was induced to vote for a candidate for office because he was paid a sum of money to so cast his vote, the ballot is an illegal one, and cannot be counted in favor of the candidate in whose interest the money was paid.</p>

<p>1. Ceoud on Titee, Removing — ■Practice. In an action to remove a cloud upon a title, under a petition setting out all of the facts, similar to a bill in equity, and independent of statutory regulations, it is not necessary to allege that the plaintiff was in possession of the premises.</p> <p>2. Deed in Bsobow — Redelioery, Unauthorized. Where a deed has been duly executed and placed in escrow by the grantor, to be delivered to the grantee upon the payment of the purchase-price, and there is a redelivery of the deed by the depositary to the grantor; and there is no evidence to establish the fact that such redelivery was authorized, or that the grantee had failed to comply with the conditions: Held, That the same was unauthorized, and that the findings and judgment in this case are not supported by the evidence.</p>

Error from Wilson District Court. Action to recover damages for bodily injuries. On May 12, 1888, judgment for plaintiff, Blevins, for $5,000 damages. The defendant Company brings the ease to this court. The opinion states the facts.

Error from, Mitchell District Court. Replevin. The opinion states the facts. Judgment for the plaintiff, Bank of Glen Elder, at the September term, 1888. The defendant, Farmers’ &c. Bank, brings the case to this court.

Error from Sherman District Court. The opinion states the nature of the action and the material facts. Judgment for plaintiff, Russell, on May 21,1888, for $1,000, with interest at 7 per cent., from November 23, 1886. The defendant Company brings the case here.

Error from Boohs District Court. Action upon a promissory note. Judgment for plaintiff, Stephens, on December 3,1888. The defendants, Sollenberger and another, bring the case to this court. The facts are stated in the opinion.

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

<p>Justice’s Coubt — Summons — Service of Defective Copy — Validity of Judgment. Where a summons is issued by a justice of the peace and served by a constable by leaving it at the usual place of residence of the defendant, a paper which is a, copy of the original summons, with the exception that the name of the constable is signed to the copy in the place of the name of the justice of the peace, but the indorsement upon the copy contains the name of the justice issuing the. same, held, that such mistake in the copy of the summons does not render a judgment entered upon such service void, but only voidable.</p>

Error from Harper District Court. Replevin. The opinion states the facts. Trial by the court, at the October term, 1888, and judgment for the defendant, Couch. The plaintiffs, Bliss & Wood, bring the case to this court.

Error from Bernard District Court. Ejectment. Judgment for defendant, Fulton, at the September term, 1888. The plaintiff, Greiner, comes here. The facts appear in the opinion.

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

Error from Anderson District Court. This was an action brought in the district court of Anderson county by the Township of Omrh against the Colony, Neosho Falls & Western Railroad Company, the Southern Kansas Railway Company, H. K. Winants, H. A. Bearly, and S. A. Herriman, the county commissioners, and A. I). McFadden, the county clerk of said county, to enjoin the defendants from issuing or accepting certain township bonds.

Error from Wyandotte District Court. Action of injunction, brought in the name of The State by the county attorney of Wyandotte county, to enjoin the city of Argentine, and the mayor and council thereof, from appropriating or expending any portion of the proceeds of the sales of city bonds issued for the purpose of building a city hall in the city of Argentine in the purchase of lots upon which to erect such ball.

Ei'ror from Wyandotte District Court. Action by Simpson against the City of Kansas City, the mayor and clerk thereof, and others, for a temporary injunction to restrain the collection of a certain tax for grading Reynolds avenue between Fifth street and Tenth street in said city. On November 16,1889, the injunction was refused, and judgment for costs rendered for defendants. The plaintiff, Simpson, brings the case to this court. The material facts are stated in the opinion.

Error from Ellsworth District Court. Action on a promissory note. Judgment for plaintiff, Larkin, at the February term, 1888. The defendants, Perry Hodgden and wife, bring the case here. The material facts appear in the opinion.

Error from, Douglas District Court. On the 4th day of November, 1887, Peter T. Foley brought his action against the Pacific Express Company before a justice of the peace of Douglas county to recover $175, for damages alleged to have been sustained by him in the transportation of a box containing type and electrotype plates from Kansas City, Mo., to Lawrence, in this state, on October 15,1887, from the A. N. Kellogg Newspaper Company, at Kansas City, Mo., by the Pacific…

Error from Leavenworth District Court. The opinion contains a sufficient statement of the facts. Judgment for plaintiff, Charlott, at the December term, 1889 The defendant, Bauserman, as administrator of the estate of James G. Blunt, deceased, brings the case to this court.

Error from Sumner District Court. Replevin. The facts are stated in the opinion. Judgment for plaintiff, Miller, at the November term, 1887. The defendant Hamilton and two others bring the case to this court.

<p>Judgment et Default — Setting Aside — Terms. Where a defendant applies to have a judgment which was rendered without other service than by publication opened up, and that he be permitted to make a defense, he may in the discretion of the court be required to pay all costs before his application will be granted; but a formal offer by answer or otherwise to pay costs is not a prerequisite to the hearing or granting of the application.</p>

Error from Brown District Court. Action to restrain the collection of a certain judgment. Judgment for defendants, Hill and two others, at the February term, 1889. The plaintiff, Snively, brings the case to this court. The facts are stated in the opinion.

Prosecution for a violation of the prohibitory liquor law. On November 29, 1890, on the 14 counts on which the defendant, Falh, was found guilty, he was sentenced to pay a fine of $100 and costs, and to imprisonment in the county jail for 30 days, on each count. He appeals.

<p> Appeal from Finney District Court. </p> <p>Action for bastardy. The material facts appear in the opinion.</p>

Error from Ellis District Court. The opinion states the case. Judgments against the Company, on January 8, 1889. It brings the two cases to this court.

Error from ECarvey District Court. Motion to discharge certain land from attachment, sustained at the January term, 1889. The plaintiff, Dearborn, brings this ruling here for review. The opinion states the facts.

<p>Lease — Improvement by Tenant — Valuation. Where a landlord agrees with his tenant to purchase from him at the expiration of his lease, which is to run about two years, at its value or worth at that time, an addition or fixture to the leased house, to be attached by the tenant, the value or worth of the addition or fixture is not to be estimated from the cost thereof and its depreciation from use or lapse of time after its erection.</p>

Error from Greenwood District Court. This was an action brought in the district court of Greenwood county by C. Karracker against the Fort Scott, Wic¡dta & Western Railroad Company, to recover damages for the destruction by fire of a certain amount of prairie hay, flax straw, fence wire and fence posts belonging to the plaintiff, of the alleged value, in the aggregate, of $404.

Error from, Hamilton District Court. The opinion states the facts. Judgment for defendants, Reed & Co., at the January term, 1889. The plaintiff City brings the case to this court.

<p>Case, Followed. The facts and the law being the same as in the Furniture Go. V, Armstrong, ante, p. 270, that case is followed.</p>

<p>Cobbob&tion— Contract — Estoppel. A corporation which has enjoyed the benefits of a contract cannot claim that it was ultra vires and void.</p>

Error from, Lyon District Court. The opinion states the nature of the action and the material facts. Judgment at the December term, 1890, against the plaintiff, Jay. He brings certain rulings here for review.

Prosecution for subornation of perjury. Trial at the November term, 1890; conviction and sentence to the penitentiary for three years. The defendant, John Geer, appeals. The opinion states the material facts.

Error from Finney District Court. The opinion contains a sufficient statement of the case. Writ of mandamus allowed April 15, 1890. The defendant Board of Canvassers brings the case here.

Peosecution for unlawful sales of intoxicating liquor. Conviction at the September term, 1890. The defendant, Heseher, appeals. The opinion states the facts.

Error from Dickinson District Court. Action to recover on certain promissory notes pledged as collateral security. Judgment for the plaintiff Bank, at the May term, 1888. The plaintiff, not satisfied with the amount of the judgment, brings the case here. The facts appear in the opinion.

<p> Error from Shawnee District Court. </p> <p>Action to set aside a certain deed. Judgment for defendants, Anderson and wife, on April 2, 1888. The plaintiffs, Stumbaugh and two others, bring the case to this court. The facts appear in the opinion.</p>

<p>1. Pbopebxi Subject to Material-Men’s IAen. A person in possession of real estate under a verbal agreement to convey the fee-simple title to him is an owner thereof within the meaning of our statute relating to material-men’s liens, and may subject his interest therein to such a lien.</p> <p>2. ---Priority of IAen, When a person in possession contracts for material for the erection of a building upon the premises, and a portion of the material has been furnished and the construction of the building begun, and afterward, pursuant to said agreement, the full title is conveyed to him, held, that the lien for the material so contracted, if filed in time, is prior to mortgage liens obtained subsequent thereto.</p>

<p>Pleading — No Reply — Verdiot and, Judgment, Erroneous. Where a plaintiff declares upon a note which is set out in the petition, and the defendants answer that it was given for usurious interest and was void for want of consideration, and no reply was filed by the plaintiff to the answer; and the court overruled the motion of the defendants to require the plaintiff to file a reply to such answer, and proceeded to trial over the objection of the defendants, and instructed the jury to return a verdict for the plaintiff: Held, That such verdict, and the judgment based thereon, are erroneous.</p>

Brrror from Bourbon District Court. Action to recover damages for malicious prosecution. Judgment for defendant, Hixon, at the May term, 1888. The plaintiff, Ross, brings the case here. The facts appear in the opinion.

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

Error from Linn District Court. The case is stated in the opinion. Judgment for the defendant Railway Company, at the November term, 1888. The plaintiff, Herndon, brings the case here.

Error from Kearny District Court. Action to foreclose a chattel mortgage. All the material facts are set forth in the opinion.

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

Error from Shawnee District Court. Carey and Bray commenced, on October 26, 1883, this action to quiet title to a quarter-section of land in Shawnee county. They alleged ownership and actual possession. The claim of title of each side is set out in the special findings, as follows: “conclusions oe eact. “1.

<p> Error from Chase Distriot Court. </p> <p>The facts are stated iu the opinion.</p>

Error from Trego District Court. The opinion states the nature of the action and the material facts. Judgment for defendant, Ostrander, at the September term, 1888. The plaintiff, Willard, brings the case to this court.

<p>1. Fbaud— Chattel Mortgage, When no Lien. An antecedent creditor, who knows that his debtor procured goods and merchandise by fraudulent means, cannot by a chattel mortgage secure a lien on such fraudulently-procured goods, adverse to the innocent vendors of such goods.</p> <p>2. Antecedent Ceeditoe, Who Has no TAen on Goods Procured by Fraud. An antecedent creditor, who knows that his debtor has procured goods by fraudulent means, when the sale of such goods is partially induced by the representations of such antecedent creditor as to the credit of his debtor, cannot by a chattel mortgage secure a lien on such fraudulently-procured goods, adverse to the innocent vendors of such goods.</p> <p>3. Evidence to Show Fraudulent Intent. The failure of a chattel mortgagee to have his mortgage reoorded for 43 days, or to disclose its existence to other creditors, when the financial condition of the debtor is being discussed, and who promiseá the debtor that he would not disclose its existence to other creditors who were demand" ing payment or security for their claims, is strong evidence tending to show a fraudulent intent to hinder and delay creditors.</p>

<p>Constructive Contempt — Order of Arrest — Error. It is error to issue an attachment, warrant or order of arrest for an alleged constructive contempt, without an affidavit or information containing a statement of the facts constituting the alleged contempt having first been filed with the court.</p>

<p>1. Constructive Contempt — Order of Arrest — Error. It is error to issue an attachment, warrant or order of arrest for a constructive contempt, without an affidavit or information containing a statement of the facts constituting the alleged contempt having first been filed in the court whence the process issues.</p> <p>2. --Sufficient Answer. The answer in this case examined, and held, that under the circumstances of this case the defendant should have been discharged on his answer.</p>

Error from Cowley District Court. Action to set aside a certain mortgage. Judgment for plaintiffs, Barbara Croco and husband, on January 3, 1890. The defendant Bank brings the case to this court. The ma-' terial facts are stated in the opinion.

Error from Cowley District Court. The facts appear in the opinion. The plaintiff Bank brings to this court for reversal two orders dissolving certain attachments, made by the district judge at chambers, on March 2, 1889.

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

Error from Atchison District Court. Action by Manley and others against Emlen, as treasurer of Atchison county, and others, to restrain the collection of certain taxes. Judgment for defendauts, on June 15, 1889. The plaintiff brings the case to this court. All the material facts appear in the opinion, filed on June 6, 1891.

<p> Original Proceeding in Mandamus. </p> <p>The material facts are stated in the opinion, filed at the session of the court in June, 1891.</p>

Information for resisting tbe sheriff in selling personal property on execution. From a conviction at the November term, 1890, the defendants, Morrison and Cooney, appeal. The facts appear in the opinion.

<p>1. State Tbeasubt — Drawing Money Prom. No money can be drawn from the treasury of the state, except in pursuance of a specific appropriation made by law.</p> <p>2. Appbopeiation, Payment in Excess of. Where the legislature has made a specific appropriation of $2,000 for the compensation of the secretary, stenographer and other officers of the state senate during the sitting of the senate for an impeachment trial, neither the auditor nor treasurer of state has the authority to allow or pay , any compensation for such officers in excess of said specific amount so appropriated.</p>

The opinion states the nature of the action, and the material facts. Judgment against the defendant, Durein, at the April term, 1891. He appeals.

Error from Butler District Court. The material facts appear in the opinion. Judgment for plaintiff, Long, on August 14, 1888. The defendant Railroad Companies bring the case to this court.

<p>1. New Tbiae — Review. An error, apparent of record, in a final judgment in the district court, may be reviewed in the supreme court without a motion for a new trial.</p> <p>2. - Judgment in Ejectment. Where, in an action of ejectment, judgment is rendered in favor of the plaintiff, and proceedings are had under the occupying claimants’ act, and the sheriff’s jury return an assessment and valuation of the land and improvements, as well as the rents and waste accrued since the commencement of the action, and the net value of the rents and the waste exceed the value of the improvements, it is the duty of the court, under $ 607 of the code of civil procedure, to render a judgment for the difference, in favor of the plaintiff.</p>

Error from Barber District Court. The opinion, filed March 7,1891, contains a sufficient statement of the material facts, pleadings and proceedings in the ease.

<p>1. Chattel Mobtoage — Assent of Creditoi — Presumption. The assent of a creditor to a chattel mortgage executed in good faith, of which he is the beneficiary, will be presumed, although it was executed and filed without notice to him and without knowledge, and such acceptance will relate back to the day of filing.</p> <p>2. Pbeeebenoe oe Cbeditobs — Chattel Mortgage, Not Void. If a chattel mortgage is given by an insolvent debtor to a creditor in good faith to pay a bona fide debt, although the giving of such a mortgage will have the effect to hinder and delay the other creditors in the collection of their claims, and may, by the exhaustion of all the property of the debtor to pay the honest debt of the preferred creditor, absolutely prevent the other creditors from collecting any part of their claims, such mortgage is not fraudulent or void merely because of such unfortunate results to the creditor not preferred.</p>

<p>1. Divoeoe— Gross Neglect of Duty. Where a wife has refused for more than five years to cohabit with her husband as a wife, and has neglected and refused for the same period of time to perform many of her household duties, held, that such conduct is sufficient to authorize the granting of a divorce to the husband upon the ground of “gross neglect of duty,” within the meaning of the statutes. (Civil Code, l 639.)</p> <p>2. Depositions, Not Suppressed — No Error. Where a notice to take depositions was that they would be taken at Detroit, Mich., on February 21,1890, and from day to day until the taking of the same should be completed, and two were taken on that day and one remained to be taken, and the officer before whom the depositions were being taken adjourned the taking of the same to Monday, February 24, for the reason that the next day, Saturday, was Washington’s birthday, and a legal holiday in Michigan, and that the next day thereafter was Sunday, and on account of the illness of the witness whose deposition was to be taken; and where a motion was afterward made in the court to suppress these depositions because of such adjournment, and the court overruled the motion: Held, Not error.</p> <p>3. Evidence, No Error in Admitting. Certain evidence commented on, and held, that no material error was committed in admitting it.</p> <p>4. Alimony — Query as to Amount. The marriage took place on March 14, 1872. The husband at the time had money and property worth about $15,000. The'wife had nothing. On March 22, 1890, a divorce was granted to the husband for the fault of the wife, and at that time the husband’s property was worth from $10,000 to $14,000. He was owing debts to the amount of $500 or more; was made liable for and required to pay the whole amount of all the costs of the divorce action, which amount was very large, and was required to support all the children, five in number and all minors, and required to pay his wife, as alimony, the sum of $2,500 and to surrender to her a large number of articles of personal property, the value of which is not shown. Held, Under all the circumstances of the case, that the supreme court cannot say that the trial court erred in not granting a larger amount of alimony.</p> <p>5. Custody oe Childeen, Awarded to Plaintiff— Query. In a case of divorce, where the trial court finds upon sufficient evidence “that the defendant is not a proper person to be entrusted with the custody and management of the said minor children, [and] the court further finds that the plaintiff is a proper person to be entrusted with the custody, management and maintenance of said children,” held, that the supreme court cannot say that the trial court erred in. awarding the custody, management and maintenance of such children to the plaintiff.</p>

Error from Kingman District Court. The facts are substantially stated in the opinion. At the December term, 1890, judgments in two cases against the plaintiff, Buffington, who comes to this court.

Error from Wyandotte District Court. The material facts appear in the opinion. Judgment for the defendant City and the county treasurer, at the December term, 1890. The plaintiff Hurla and another bring the case to this court.

Error from Pratt District Court. The facts are stated iu the opinion. Judgment for plaintiff, Hawley, at the April term, 1888. The defendant Company brings the case to this court.

<p> Appeal from Wyandotte District Court. </p> <p>The material facts are set forth in the opinion.</p>

Prosecution for grand larceny. From a conviction at the February term, 1891, the defendant, Jarrett, appeals. The opinion states the facts.

Error from Finney Distriot Court. Action upon a promissory note. Judgment for plaintiff, Bagby, April 1, 1888. The defendants, Hoshinson and 15 others, bring the case to this court. The opinion states the facts.

Error from Montgomery District Court. The facts are substantially stated in the opinion. On December 29, 1888, judgment against plaintiff, Ford, who brings the case here.

Error from Cowley District Court. The opinion states the material facts. Judgment for plaintiff Hodges, at the December term, 1888. One of the defendants, Isabelle Musgrove, comes to this court.

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

<p>1. Bull, When not Running at Large. When the owner of a farm, by an arrangement with the occupant of an adjoining farm, allows his stock, with which is a bull more than a year old, to run across the line on the latter farm, to graze, and both farms are' otherwise inclosed, such bull is not running at large within the meaning of ¶ 6725, Gen. Stat. of 1889.</p> <p>2. Witness — Answer, not Responsive. Where the answer of a witness is not responsive to the question put to him, an objection to the question is not available on error. There must be a motion to strike out the answer.</p> <p>3. - Qualified as an Expert. The record examined, and held, that the witness Magruder had shown himself qualified as an expert to testify to the value, of the bull in suit.</p>

Error from Douglas District Court. Action to recover on an account. Judgment for the defendant Barb-Wire Company, at the November term, 1888. The plaintiff Wire-Mill Company brings the case to this court. The facts are substantially stated in the opinion.