Volume 47 — Kansas Reports

Error from Shawnee District Court. Action to recover on a fire insurance policy. Judgment for plaintiffs, Johnson & Williams, at the April term, 1888. The defendant Company brings the case here. The opinion states the facts.

<p>Defective Reoobd — Case, Dismissed. Where the record on appeal shows that the findings and judgment are entitled in another case, without any explanation other than by counsel for plaintiff in error in their brief, to the effect that the same were adopted by the trial court from the other ease, without changing the title, the petition in error will be dismissed.</p>

Error from, Finney District Court. The facts appear in the opinion. Judgment for the plaintiff, Temple, at the August term, 1888. The defendant Railroad Company brings the case to this court.

Error from Finney District Court. Judgment for plaintiff, Collins, at the August term, 1888. The defendant Railroad Company brings the case to this court. The facts sufficiently appear in the opinion.

Error from Lyon District Court. The opinion states the nature of the action and the material facts. Judgment for the defendant, Glover, at the September term, 1888, for $248 damages. The plaintiff Company brings the case to this court.

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

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

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

Error from Sedgwick District Court. The opinion states the facts. Judgment for defendants, Ross and others, April 7, 1888. The plaintiffs, Woodman and others, bring the case to this court.

<p>1. Reactions oe a Dax — Judicial Notice. Where it is necessary to justice, and it can be done, the courts may take notice of the fractions of a day; and the precise time when an act is done may be shown.</p> <p>2. Statute — Taking Effect. Where a statute provides that it shall take effect “from and after its publication,” in computing the time when it takes effect, the day of its publication is to be included; but the precise time of its publication, or taking effect, may be shown, where an act is done on the same day of its publication, if the hour of publication affects such act in any way.</p> <p>3. Appeal, When not Taken• — Statute. No appeal or proceeding in error can be had or taken from and after the publication of chapter 245, Laws of 1889, made on the 20th of March, 1889, to the supreme court in any civil action, unless the amount or value in controversy, exclusive of costs, exceeds $100, except in cases involving the tax or revenue laws, or the title to real estate, or damages for slander, libel, malicious prosecution, or false imprisonment, or the constitution of this state, or the constitution, laws or treaties of the United Statesj and when in such a case the judge of the district or superior court trying the case involving less than $100 shall certify to the supreme court that the case is one belonging to the excepted classes. (Civil Code, §542a, Gen. Stat. of 1889, ¶4642.)</p> <p>4. Vested Rights — Valid Statute. A party who has been defeated in a civil aotion in the district court has no vested right to an appeal or to the prosecution of proceedings in error in the supreme court to review the rulings or judgment of the district court before he has filed his appeal or proceedings in the supreme court; and an act of the legislature taking away the privilege of appeal or the permission to prosecute proceedings in error before the appeal or petition in error is filed, is valid and constitutional.</p>

Error from Barton District Court. The opinion contains a sufficient statement of the nature-of the action, and the material facts.

Error from Marion District Court. Action by Levagood against Mastín and another, to recover damages for the loss of his hand. At the November term; 1888, judgment for the plaintiff for $1,331. The defendants bring the case to this court. The opinion states the facts.

<p> Original Proceeding in Mandamus. </p>

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

Frror from Marshall District Court. On the 23d day of July, 1883, D. W. Acker and J. F. Watson brought their action against James S. Warden, to recover as damages $3,000.

Error from Shawnee District Court. Ejectment. The material facts are stated in the opinion. Judgment for defendant, Heyle, on March 22, 1888. The plaintiffs, Howbert and another, bring the case to this court.

<p> Eh'ror from Butler District Court. </p> <p>Ejectment. Judgment for defendant, Anderson, at the December term, 1888. The plaintiff, Riggs, brings the case to this court. The facts are stated in the opinion.</p>

Error from Wilson District Court. Cook and others bring here for review the refusal of the court below to grant them a continuance. The facts appear in the opinion.

Error from Johnson District Court. On the 14th day of February, 1888, T. J. Hadley and C. M. McEntire brought their action against Thomas L. Hogue, S. R. Burch and H. S. Miller, to recover $500 alleged to have been received by Hogue, Burch ’ & Miller as the agents of Mrs. Bowen for certain real estate sold by them for her benefit. At the instance of Hogue, Burch & Miller, Thomas Durham was also made a defendant.

Error from Cloud District Court. Eeplevin. Judgment for plaintiffs, N. B. Brown & Co., at the October term, 1888. The defendant, Gagnon, brings the case here. The facts are sufficiently set forth in the opinion.

<p>Trespass on Lands — Injunction, Refused. When a petition states a cause of action in damages to real estate, and also asks for an injunction to restrain the defendant from trespassing thereon, and the jury find that the defendant had trespassed on plaintiff’s land as alleged in the petition, but that he had abandoned his trespasses before suit was begun, and the court refuses to perpetuate the injunction, but renders judgment for the plaintiff for nominal damages and costs, held, not error.</p>

Error from Wabaunsee District Court. This was an action commenced by Emma C. Nogle against Mrs. Elmira A. Aiken, formerly Mrs. Elmira A. Giles, to recover $658.35, and interest thereon, for wages as a servant.

M-ror from Rooks District Court. Replevin. Judgment for plaintiff, Humes, at the November term, 1888. The defendants bring the case to this court. The opinion states the facts.

Error from Crawford District Court. Injunction. Judgment for plaintiffs, Goff and another, at the September term, 1887. The defendant School District brings the case here.

<p>1. Review- — Evidence not Duly in Record. Evidence purporting to • have been given on the trial of a case, and certified to by the official stenographer and by the clerk of the district court to be true and correct, and attached to a transcript brought to the supreme court, forms no part of the record, and oannot be considered unless it is preserved either by a bill of exceptions or case-made.</p> <p>2. -Setting Aside Default. The setting aside of defaults and permitting pleadings to be filed out of time is largely discretionary with the trial oourt, and its rulings thereon will not be "disturbed unless there is a clear abuse of discretion.</p>

<p>County Bo and — Void Contract. Where a contract is entered into between two members of the board of county commissioners on the one side and an individual on the other side, outside of their county and without any previous authority having been given by the board, and such contract has never been ratified by the board, held, that it is void.</p>

Error from MePherson District Court. Action to recover damages for bodily injuries. Judgment for plaintiff, Plaskett, at the October term, 1888, for $6,000 damages. The defendant Company brings the case to this court. The facts appear in the opinion.

<p> Motion for Rehearing. </p>

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

Original Proceeding in Mandamus. Action of mandamus by The State, on the relation of the board of regents of the state normal school, at Emporia, to compel S. G. Stover, as state treasurer, to pay certain moneys to the treasurer of said board.

Error from, Labette District Court. This was an action brought in the district court of Labette county by L. H. Kemper against C. M. Condon, to recover $500 as liquidated damages for the alleged breach of the following written contract, to wit: • “This agreement, between L. H. Kemper and C. M. Con-don, witnesseth: That whereas, t.he said Kemper has sold to said Condon lot 7, block 38, in Oswego, Kas., said Condon, as a part of the consideration therefor, agrees to erect…

Prosecution for embezzlement. From a conviction at the May term, 1891, the defendant, Combs, appeals. The facts sufficiently appear in the opinion.

■ Prosecution for the unlawful sale of intoxicating liquor. From a conviction at the April term, 1891, the defendant, McLafferty, appeals.

<p>1. Ineobmation — Joinder of Counts. A count for maintaining a nuisance, under $13 of the prohibitory law, may be joined in an information with one or more counts charging illegal sales of intoxicating liquors, under $ 7 of the same law.</p> <p>2. - The record examined, and held, that no substantial error exists therein.</p>

Original Proceeding in Mandamus. Application for a writ of mandamus to compel the directors and warden of the state penitentiary to comply with the eight-hour law.

Appeal from Johnson District Court. Prosecution for grand larceny. From a conviction, on May 15,1891, the defendant, Woodruff, appeals. The opinion states the facts.

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

<p> Original Proceeding in Habeas Corpus. </p>

Prosecution for murder in the first degree. From a conviction for manslaughter in the first degree, at the January-term, 1891, the defendant, Spendlove, appeals.

Error from Lyon District Court. The facts are substantially stated in the opinion. Judgment for Kimball, at the September term, 1888. Shippen brings the case to this court.

<p> Original Proceeding in Mandamus. </p>

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

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

<p>County Boabd — Void Contract with Attorneys, A contract made by the board of county commissioners, for the county, with attorneys at law, for their services as such, which services are such as the law requires the county attorney to perform, is ultra vires and void.</p>

Prosecution for improperly registering the name of a voter. The court below sustained the motion to quash the information, and discharged the defendant, Bush. The State appealed.

<p>Deed —Ratification of Invalid Delivery. Where the grantee has surreptitiously obtained possession of a deed duly acknowledged, but never lawfully delivered, such possession and invalid delivery may be rati- ' fied by the subsequent acts of the grantor, which show a clear recognition and acquiesence in the grantee’s title to the land conveyed by such deed. Held, That the evidenoe and special findings of fact in this cpse show that the grantor ratified the act of the grantee in taking into his possession the deed of June 30, 1876; and that the conclusion of law, as found by the district court, that the grantor did not ratify such possession, is not warranted by the evidence and the special findings of fact.</p>

<p> Error from Labette District Court. </p> <p>Ejectment. The ease is stated in the opinion.</p>

The material facts are stated in Insurance Co. v. Amick, 45 Kas. 74, 738, and in the opinion, infra, filed at the session of the court in October, 1891.

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

<p> Appeal from Barber District Court. </p> <p>Prosecution for forgery. From a conviction at the May term, 1891, the defendant, Zimmerman, appeals.</p>

<p>1. Defect oe Pasties — Waiver. A defect of parties should be raised either by answer or demurrer, and, when not so taken advantage of, is usually waived.</p> <p>2. Evidence — Findings. The evidence examined, and found sufficient to support the special findings and judgment of the trial court.</p>

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

<p> Original Proceedings in Habeas Corpus. </p> <p>The case is sufficiently stated in the opinion, filed at the session of the court in November, 1891.</p>

Error from Lane District Court. The facts appear in the opinion. Judgment for the defendants, Kurtz and two others, at the October term, 1888, The plaintiffs, Schuster, Hingston & Co., bring the case here.

<p>Intoxicating Liquoe — lllegalSales—Information—Evidence. Where a county attorney files an information charging the defendant with illegal sales of intoxicating liquor, and positively verifies the same, but files therewith, and by special averment makes a part thereof, a sworn statement of a private person who testified to illegal sales made to him by the defendant, and such person is not used as a witness at the trial, but the county attorney elects to rely on another sale made to a different person, and it sufficiently appears that at the time of the filing of the information neither the county attorney nor the person who made the sworn statement had notice or knowledge of the particular offense relied upon for conviction, the defendant should not be found guilty of such particular offense. The case of The State v. Brooks, 33 Kas. 708, cited, and followed.</p>

<p>1. Intoxicating Liqitobs — Abatement of Nuisance. The judge of the district court has no authority to make an order at chambers abating a place as a nuisance where intoxicating liquors are alleged to have been sold in violation of law, and forever enjoining the owner, lessee or keeper from maintaining such place.</p> <p>2. Constbuotive Contempt — Error. It is error for a court or judge in any case to proceed against a person for a constructive contempt, without an affidavit or information in writing, containing a statement of facts constituting the contempt charged, being first filed in court or submitted to the judge.</p>

<p>1. Infant — Adoption—Res Judicata. An order of the probate court permitting the adoption of an infant child is conclusive so far as that court is concerned. Such court has no further jurisdiction in the matter.</p> <p>2. - Evidence — Custody of Child. T.he evidence in this case examined, and held not to justify this court in depriving the respondents of the custody of the child sought to be taken from them.</p>

<p>1. Case, Followed. Mo. Pao. Bly. Co. v. Merrill, 40 Kas. 404, followed.</p> <p>2. Judgment — Amendment in Supreme Court. Where a trial court renders a judgment for a less amount than the verdict returned by the jury, such judgment cannot be corrected in the supreme court to conform to the verdict of the jury, in proceedings in error brought by the party against whom the judgment is rendered, when no cross-petition is filed by the party in whose favor the verdict is returned, asking for a correction or modification of the judgment,</p> <p>3. Appeal from a Justice — New Petition — Practice. Where an action is appealed from a justice of the peace to the district court, and the plaintiff, with the consent of the defendant, files in the district court a new petition, setting up a claim exceeding $300, and the defendant voluntarily appears and files his answer thereto, the district court has jurisdiction to hear and determine the action upon the pleadings filed in that court, the same as if there had been no appeal.</p>

<p> Original Proceeding in Mandamus. </p> <p>This case is sufficiently stated in the opinion, filed at the session of the court in November, 1891.</p>

Error from Reno District Court. The opinion states the facts. Judgment for plaintiff, Gibbs, at the July term, 1888. The defendant Company brings the case here.

<p> Original Proceeding in Habeas Corpus. </p>

<p>County Boabd — Control of County Printing — Injunction. Under ¶ 1655 of the General Statutes of 1889, the boards of county commissioners of the several counties of the state have exclusive control over the county printing-; and, in the absence of fraud'or collusion, injunction will not lie to restrain the board from paying for such county printing at legal rates, although other parties may have been willing and did offer to do the county printing for a less sum than the amount fixed by law for doing such work.</p>

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

Error from Shawnee District Court. On the 25th day of April, 1887, S. N. Burgen and wife and A. J. Arnold and wife, for the consideration of $7,000, executed a deed to J. L. Beverly for lots 381, 391, and 393, on Kansas avenue, in Holzle’s addition to the city of Topeka, and also for a certain tract of land adjoining said lots.

<p> Appeal from Oeary District Court. </p> <p>The opinion states the facts.</p>

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

Error from Chautauqua District Court. Proceeding by Mary Laing, as administratrix, against J. G. Teney and H. W. Laing. Judgment for the plaintiff, on March 6, 1889. The defendants bring the case to this court. The opinion states the facts.

<p>County Boabd — Recognition of Membet — Mandamus. Mandamus will not lie to compel one of the members of a board of county commissioners and the county clerk to recognize a person as county commissioner who has had a judgment rendered against him in a contest proceeding, instituted to determine who was elected to such office, and who has also been ousted from the office by a judgment of the district court in proceedings in quo warranto. The peremptory writ of mandamus should not issue unless there is a clear and specific legal right to be enforced, and there is no other particular and adequate legal remedy.</p>

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

Error from Miami District Court. The opinion states the facts. Judgment for the defendant Company, at the June term, 1888. The plaintiffs, Manlove and another, bring the case here.

<p> Error from Sedgwick Court of Common Pleas. </p> <p>The opinion states the case.</p>

<p>New Tbial — Application. Where an application by petition is filed for a new trial, under the provisions of § 310 of the civil code, no verification thereof is required.</p>

Error from Butler District Court. This was an action brought in the district court of Butler county, on February 24,1887, by Jacob Schroeder against the Atchison, Topeka & Santa Fé Railroad Company, to recover damages to the amount of $5,000, for alleged personal injuries.

Error from Sedgwieh District Court. The opinion states the facts. Judgment for defendant, Center, on March 21, 1889. The plaintiff Myers and seven others bring the case here.

<p> Error from Bourbon District Court. </p> <p>Action for the partition of certain land. The case is fully stated in the opinion.</p>

<p> Error from Pottawatomie District Court. </p> <p>Eeplevin. Judgment for plaintiff, Gardner, at the May term, 1888. The defendants, Allen and another, bring the case here. The opinion states the facts.</p>

Error from Shawnee District Court. All the material facts are stated in the opinion. Judgment for plaintiff, Wand, at the September term, 1888. The defendants, Hill Bros., bring the case to this court.

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

<p>1. New Tbiad— Time of Filing Motion — Presumption. Where an entry of the proceedings taken in a case shows when the trial was begun, but does not affirmatively show when the final decision was made, and it is shown that a motion for a new trial was filed five days after the trial was commenced, which motion was entered and allowed, it will be presumed by the supreme court, for the purpose of upholding-the judgment of the court below in granting a new trial, that the motion was filed within three days after the final decision was made.</p> <p>2. Evidence — Demurrer — Jury. The evidence offered by the plaintiff below is found to be sufficient to take the case to the jury, over a demurrer interposed against it.</p>

Error from Atchison District Court. All the material facts are stated in the opinion herein, filed at the session of the court in November, 1891.

<p> Motion for Rehearing. </p>

<p>Husband and Wife — Action■—Misjoinder — Joint Judgment. Where ap husband and wife sell and convey jointly and by a joint deed certain real estate to H. for the joint consideration of $5,650, and afterward the grantors commence a joint action against H. for the purchase-price of the land, and the petition states and shows a joint cause of action for the purchase-price of the land, and no question is raised as to a misjoinder of causes of action or of parties by either a demurrer or an answer, but on the trial it appears that each of the plaintiffs owned a separate portion of such real estate, and the trial court rendered a joint judgment in favor of the plaintiffs and against the defendant for the amount of the purchase-price still remaining due and unpaid, held, not error.</p>

<p>Case, Followed. The principles enunciated and decided in In re Short, Petitioner, ante, p. 250, control the decision in this case.</p>

Error from Atchison District Court. On tjie 10th day of July, 1888, Nicholas Anderson brought his action against W. W. Guthrie, to recover $1,800, with interest thereon from the 3d day of June, 1888, for a balance of purchase-money upon the following written memorandum: “The undersigned, husband and wife, owners in fee-simple, with title perfect and all taxes paid up to and including 1887, of lot 8, in block 39, old Atchison, city of Atchison, Kas., hereby bargain to sell…

<p>1. Judgment — No Legal Existence. Under the allegations of the pleadings, it is assumed by the supreme court that a certain judgment of a justice of the peaoe was rendered on April 30, 1887, and set aside and a new trial granted on May 4, 1887, and the new trial was set for May 16, 1887; and upon these facts, held, that after May 4, 1887, the judgment of the justice of the peace had no legal existence.</p> <p>2. Justice oe the Peace — Jurisdiction. On May 16,1887, the parties appeared, but the justice of the peace was absent from his office and from the township, and nothing was then done in the case. Meld, That the justice of the peace thereby lost all jurisdiction of the case.</p> <p>3. Deeunot Judgment, Not Revived. .Afterward, and on November 3, 1887, the justice of the peace attempted by an order to set aside and vacate his previous order setting aside and vacating the judgment and granting a new trial; but held, that the order of November 3, 1887, could not have the effect to revive or resuscitate the former defunct judgment.</p> <p>i. Void Execution — Collateral Attack. Afterward an execution was issued upon the judgment and levied upon the defendant’s property; but held, that as the j udgment had no legal existence the execution was "itself void, and could be attacked collaterally as well as directly, and its enforcement be restrained by injunction.</p> <p>5. -- No Estoppel. The defendant in the execution gave a redelivery bond and was thereby permitted to retain the possession of the property; but held, that by giving such redelivery bond he did not estop himself from afterward asserting, either directly or collaterally, that the judgment and all things depending upon it were absolutely void.</p>

Error from Brown District Court. Action for malicious prosecution, by T. B. Jackson against Cornelius G. Linnington, wherein he complained that he was arrested upon the complaint of Linnington, charged with the offense of malicious trespass, without reasonable or probable cause. He alleged that upon a trial he was acquitted of the crime, and claimed damages in the sum of $1,000. The answer of the defendant was a general denial.

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

Error from Harvey District Court. Action by the First National Bank of Newton, Kas., against Pollard, to enjoin the collection of certain taxes levied against the plaintiff. At the February term, 1891, the injunction was granted. The facts appear in the opinion.

Error from Harvey District Court. Action by Johnson against Tyler and others, to enjoin the sale of certain property under execution. Judgment for the plaintiff, at the May term, 1888. The defendants bring the case to this court.

<p> Error from Smith District Court. </p> <p>The ease is stated in the opinion.</p>

<p>Pbobate Judge — Salary. A probate judge is entitled to be paid the salary provided for by ¶ 2524, General Statutes of 1889, without proof that he had actually performed the services contemplated by the “ act relating to intoxicating liquors.”</p>

<p>Mobtgage — Foreclosure — Personal Judgment against Intermediate Grantees. Where lands previously mortgaged were conveyed to R., who assumed and agreed to pay such mortgages, and R. conveyed the land to N. by warranty deed, and N. subsequently mortgaged to the same parties that held the first mortgages, and these parties commenced their action to foreclose, a personal judgment should be rendered against R. for the amount of the mortgages he assumed to pay, both for the protection of the original mortgagor, who conveyed to R., and for the protection of N., to whom R. conveyed by warranty deed, and the amount collected on said judgment should be applied to the satisfaction of the mortgages that R. agreed to pay.</p>

Error from Saline Eistriet Court. On September 1,1887, the Standard Implement Company began a suit in attachment in the district court of Saline county against T. C. Ritter & Co. A stock of hardware was attached, a receiver appointed, and the property sold.

Error from Trego District Court. Action to recover upon two promissory notes. Judgment for the defendant, Morse, at the May term, 1888. The plaintiff Company brings the case to this court. The facts appear in the opinion.

<p>1. Tbiab — Admissions—Direction of Judgment. The court is warranted in acting upon the admissions made by parties during the trial of a cause; and where the plaintiff, in making the opening statement of his case to the court and jury, admits or states facts the existence of which absolutely precludes a recovery by him, the court may close the trial at once and give judgment against him.</p> <p>2. - Opening Statement — Record. Where such opening statement is not preserved in a bill of exceptions, it forms no part of the record of the district court.</p>

Error from Bourbon District Court. The material facts appear in the opinion. Judgment for plaintiff, Grubb, at the December term, 1888. The defendant, Cox, brings the case to this court.

Error from, Sherman District Court. The opinion states the facts. Judgment for plaintiffs, Bradley, Wheeler & Co., at the October term, 1888. The defendants, Russell and another, bring the case to this court.

Error from Cloud District Court. Injunction. Judgment for plaintiff, Bacheldor, at the October term, 1888. The defendants, Marshall, as sheriff of Cloud county, and Hollis, bring the case to this court. The material facts appear in the opinion.

<p>New Tbiaij — Motions Overruled — No Review, When. 'When errors complained of relate to matters occurring on the trial, for which a new trial is asked, but the action of the court in overruling the motion for a new trial is not assigned as error, they cannot be considered in this court. (Struthers v. Fuller, 45 Kas. 735, cited and followed.)</p>

<p>1. Petition in Ebbob — Amendment, When. A petition in error in the supreme court may be amended more than one year after the ruling of the district court complained of has taken place, if the amendment is only to make good a defective, informal or incomplete allegation of error already contained in the petition in error; but when the proposed amendment sets forth an absolutely new and distinct allegation of error or cause for reversal, it cannot be made after that time.</p> <p>2. Tbiai, — Errors, When Considered. 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 afterward assigned for error in the supreme court.</p>

Error from Cloud District Court. Attachment suits against Mottin and another, by the following plaintiffs, to wit: J. L. Shellabarger, et al., Wm, Broadhead et al., Tootle, Hosea & Co., (two cases,) J. H. Lee & Co., Wm. E. Schmertz & Co., and Phelps, Dodge & Palmer Company. At the April term, 1889, all the attachments were dismissed on defendants’ motion, and plaintiffs in each case come to this court. The facts are stated in the opinion.

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

Error from Miami District Court. Ejectment. Judgment for plaintiff, Gano, at the October term, 1888. The defendant Company comes to this court. The facts appear in the opinion.

<p>1. Coal Dust — Explosive Element — Judicial Notice. In an action to recover for injuries resulting from a colliery explosion, the court will not take judicial notice that dry, fine coal dust is a dangerous and explosive element in a coal mine.</p> <p>2. Negligence — Incompetent Evidence. Where the negligence alleged was that the defendant company permitted the accumulation of inflammable, combustible and explosive coal dust in the mine, and failed to remove or sprinkle the same, proof that the mine was improperly laid out and constructed, or that proper doors or brattices were not supplied, is incompetent and inadmissible.</p> <p>3. Continuance — Refusal, Error. There was an agreement between counsel for plaintiff and defendant that the testimony given by certain witnesses in a former oase should be transcribed and used as a deposition in the present case, and the party in whose favor the testimony was given relied on the agreement, and did not procure the attendance of the witnesses, but at the trial the testimony of such witnesses, which is material and important, and which, if treated as a deposition taken in this case, would have been competent and admissible, was excluded from consideration upon the objection of the opposing party. The other party then applied for a continuance of the cause on account of the exclusion of the testimony and the inability to otherwise obtain the same, which application was denied. Held, Error. Either the testimony should have been received or the continuance granted.</p> <p>4. - Evidence. The testimony in the case tending to sustain the charge of negligence as made examined, and held to be sufficient to take the case to the jury.</p>

Error from, Crawford District Court. The material facts are stated in the opinion. Judgment for plaintiff, Limb, at the July term, 1890. The defendant Company brings the case to this court.

<p>Attachment — Waiver of Irregularities. In an action on an account not due, the defendants made a general appearance, and filed a motion to dissolve the attachment, for the reason that the grounds set forth in the affidavit for the attachment were false. This motion was overruled, and the facts necessary to give jurisdiction in such actions thereby established. In the motion to dissolve the attachment, no irregularity in the issue and service of the order of attachment was stated or insisted upon. Held, That all questions of irregularity were waived.</p>

Error from Comanche District Court. . Eeplevin. Judgment for plaintiff, Annis, at the November term, 1888. The defendant, Jones, comes to this court. The facts appear in the opinion.

<p>1. Tboveb and Gonyebsion— Ghattel Mortgage — Recovery—Evidence. In an action against a sheriff by a chattel mortgagee, the lien of whose mortgage is subordinate to a first mortgage and the levy of three several orders of attachment, to reoover the amount of his mortgage because of the conversion of the property, it is necessary that a wrongful taking, or a taking made wrongful by subsequent conduct, or a conversion, be established by the evidence.</p> <p>2. Liens — Priority. Three several orders of attachment levied on a stock of merchandise on the 30th day of October create a lien prior to and superior to that of a chattel mortgage filed in the office of the register of deeds on the 1st day of November of the same year.</p> <p>3. Sheeiee — Conversion—Responsibility. A sheriff being in the actual possession of a stock of goods by virtue of a levy made in pursuance to three several writs of attachment in his hands, is not responsible to a subsequent chattel mortgagee for conversion, when a receiver duly appointed by the court from which the orders of attachment issued takes exclusive control and possession of the same, and sells and receives the proceeds.</p>

Original Proceeding in Mandamus. On the 20th of October, 1891, the State of Kansas, upon the relation of the attorney general, filed its written application in this court, supported by certain affidavits, praying for a peremptory writ of mandamus to compel the Kansas Central Railroad Company and the Union Pacific Railway Company to repair, at once, the Kansas Central railroad from Leavenworth to Milton vale, by relaying the same with 56-pound steel rails, in accordance with…

From a conviction and sentence for murder in the second degree, at the April term, 1889, the defendant, Riggs, appeals. The material facts are stated in the opinion.

Error from Morris District Court. This action was brought by the defendants in error for the purpose of vacating a judgment alleged to have been obtained by fraud on April 22, 1886.

Error from Labette District Court. Action by Richardson against the Railway Company, for loss by fire, alleged to have been caused by defendant’s negligence. Judgment for plaintiff, at the October term, 1888. The defendant Company brings the case to this court.

Error from Bice District Cowrt. The facts are stated in the opinion. Judgment for plaintiff, Wood, at the July term, 1889. The defendant Insurance Company comes to this court.

Error from Allen District Court. Action by E. A. Barber and George C. Barber, partners as E. A. Barber & Co., against S. A. Brown and F. E. Parish, partners as S. A. Brown & Co., to foreclose chattel mortgages executed by one Robbins, and recover property embraced therein from defendants. Judgment for plaintiffs. Defendants bring error. The facts appear at large in the opinion.

<p> Original Proceeding in Mandamus. </p>

Error from Shawnee District Court. Ejectment. A sufficient statement of the facts appears in the opinion. November 19, 1888, judgment for defendants, Jones and two others. The plaintiff, Austin, comes here.

<p>1. Eminent Domain — Appeal—Evidence. Upon an appeal from a proceeding to condemn a right-of-way for 'a railroad, testimony of the amount awarded by the commissioners is not admissible in evidence, and a statement made by the court in its charge to the jury, informing them of the amount so awarded by the commissioners, is unwarranted and erroneous.</p> <p>2. - Measure of Damages. The measure of damages in such a case is the difference between the market value of the tract from which the right-of-way is taken immediately before and after the time when the land was actually condemned and appropriated.</p> <p>3. Statement oe Coubt- — Prejudicial Error. One of the controverted questions on the trial of the appeal was the owenership of the land taken. Before the trial the railway company made a written offer to allow judgment to be taken against it in favor of B. for $1,000 and costs. The offer was not aocepted, and the parties proceeded to trial. After the evidence had been offered and the charge of the court had been given, the court stated in the presence and hearing of the jury that “the Chicago, Kansas & Nebraska Railway Company has filed a paper in this case in which it recognizes Ernest Broquet as defendant or party in interest herein, and in which it made a certain offer to settle with said Broquet for damages to the land in question.” Held, That, under the issues and circumstances of this case, the making of the statement was prejudicial error.</p>

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

Error from Linn District Court. Action by the Linn County Bank against Hopkins, to recover upon three promissory notes. March 22,1889, a motion to discharge plaintiff's attachment was granted, and it brings error. The opinion states the material facts.

M'ror from Coffey District Court. Action to recover damages for personal injuries. Judgment, for plaintiff, Gorsuch, at the January term, 1889. The defendant Railway Company brings the case here. The opinion states the facts.

<p>1. Death oe Pasts —Revivor of Action. The statute provides that an order to revive an action upon the death of either the plaintiff or defendant cannot be made after the expiration of one year without the consent of the opposite party.</p> <p>2. Homestead — Abandonment—Finding Sustained. The evidence in the case examined, and held to be sufficient to sustain the finding of the trial court, that the land in controversy had been abandoned by both the husband and the wife as a homestead prior to the giving of the mortgage thereon executed by the husband alone.</p>

Error from Douglas District Court. Action by the Bank against Sands and another, on a promissory note. From an order, at the May term, 1889, discharging plaintiff’s attachment, it brings error. The-opinion states the facts.

Error from Douglas District Court. Three cases brought to this court to review in each the order and judgment of the district court discharging the attachment therein, at the May term, 1889. The facts appear in the opinion.

Error from Osage District Court. Ejectment. Judgment for plaintiffs, Jenkins and another, at the July term, 1888. The defendants, Pray and wife, bring error. The opinion states the facts.

<p>Pbomissoby Note — Rights of Surety — Chattel Mortgage — IAen. The surety on a promissory note given for the purchase of personal property, to whom the property was delivered by the maker, has a right to retain the possession of said property against a chattel mortgagee, to whom the maker of said note executed a chattel mortgage while in temporary possession of the property by permission of the pledgee.</p>

Error from Anderson District Court. Suit by Warner against Tipton, to recover,land. Judgment for plaintiff, at the adjourned March term, 1888. The defendant brings error. The opinion states the facts.

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

Error from Morris District Court. Proceeding by the Railway Company against Marshall, a justice of the peace, to compel him to approve two appeal bonds. Judgment for defendant, at the November term, 1888. The plaintiff comes here. The facts are stated in the opinion.

Error from Atchison District Court. Suit on a promissory note. Judgment for defendants, C. P. Wood and another, at the January term, 1889. The plaintiff, P. M. Wood, brings error.

Error from Rice District Court. The material facts are stated in the opinion. Judgment for the plaintiff Company, at the September term, 1888. The defendant, Fulton, comes here.

Error from Meade District Court. The facts appear in the opinion. - Judgment for plaintiff, Hotz, on April 11, 1889. The defendant Railway Company brings the case to this court.

<p> Error from Greenwood District Court. </p> <p>Action by Tubbs against the Railway Company, to reoover damages by fire claimed to have been caused by defendant’s negligence. Yerdict and judgment for plaintiff. The defendant comes to this court.</p>

<p>1. Fibe Caused by Locomotive■ — Pleading. In an action against a railroad company for damages caused by fire, where the plaintiff alleges in his pleading facts sufficient, which would, if proved, make out a prima facie case against the railroad company under chapter 155 of the Laws of 1885, (Gen. Stat. of 1889, ¶ 1321,) sufficient facts are alleged to constitute a cause of action against the railroad company.</p> <p>2. - Motion to Make Definite. A motion made by the defendant to require the plaintiff to so amend his pleading as to make it more definite and certain is generally made too late when it is not made until after the case is called for trial.</p>

Error from Rice District Court. Suit by Smith against Cackley on a promissory note. Judgment for plaintiff, at the April term, 1889. The defendant comes here. The opinion states the facts.

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

Error from, Atchison District Court. Action to recover upon a promissory note. Judgment for defendant, Hollister, at the April term, 1888. The plaintiff, Cross, comes here. The opinion states the facts.

Error from Chase District Court. The material facts are stated in the opinion. Judgment for plaintiff, Kerr, at the February term, 1889. The defendant, Tracy, comes here.

Error from Sedgwich Court of Common Pleas. The opinion states the facts. Judgment for plaintiff, Laggart, at the May term, 1889. The defendant Company brings error.

Error from Crawford District Court. Proceeding by D. M. Osborne & Co. against Schoonmaker, to enforce an execution sale of land. From an order, at the January term, 1889, setting aside the sale, the plaintiffs bring error.

<p>1. Ceoss-Petition — Answer-—Amendment of Cross-Petition — Practice. Where a cross-petition sets up a mechanic’s lien, and prays for a foreclosure of the same and a sale of the premises therein described, and an answer is filed containing, among other things, a general denial, and upon the trial the court permits the answer to be amended so as to allege the abandonment of work upon the building in the place of its completion, the answer on file will be regarded as putting in issue the amendment to the cross-petition; and therefore when the court and parties proceed with the trial as if the alleged abandonment was one of the issues of the case, the failure of the court to permit the filing of a new denial is not erroneous or prejudicial.</p> <p>2. Mechanic's Lien — Timely Filing — Enforcement. Where the foreclosure of a mechanic’s lien is tried before the court without a jury, and the court finds as a fact that certain work was done upon the building upon a specific date, it will be assumed, in the absence of any showing to the contrary, that the work was done under the contract, or with the consent of the owner. In either case, the owner would be liable for the work done and material furnished, and the mechanic’s lien, if filed within the statutory time after such work was done and material furnished, would be in time. (The case of Shaw v. Stewart, iS Kas. 572, followed.)</p>

<p>Resulting Tbusts — Homestead Purchased with Wife’s Funds. Where a husband and wife reside in another state, and she has a considerable amount of property and he has none, and he is nearly blind) and they agree to come to Kansas and procure land which shall belong to her, and they come and settle upon a quarter-section of government land, intending to procure the title under the United States homestead laws, and the entry thereof is made in his name, but she furnishes all the money to pay the costs and expenses thereof, and to make all the improvements thereon, and valuable improvements are made thereon, and, when final proof is made it is made in his name, but still it is the intention and agreement of the parties that the property shall be hers, and he agrees to convey the title to her as soon as the patent shall be issued, she agreeing to furnish him a home thereon as long as he shall live, and they continue to reside upon the property, and she continues to make improvements thereon, and in a little more than one month after the final proof is made the husband dies intestate, and without executing to his wife any deed for the land, held, that under the facts of the case the wife is .entitled to the property.</p>

Error from Wyandotte District Court. Action by W. J. Huffaker against Wm. Griswold and Thomas Bowling, as sheriff of Wyandotte county, to enjoin the sale of certain land. Judgment for plaintiff. Defendants bring error. The facts are fully stated in the opinion.

<p>1. Condemnation Peooeeding — Value of Land Taken — Expert Evidence. Where farmers or others give their opinions, as experts, as to the market value of land with which they are acquainted, it is not improper, upon cross-examination, for the purpose of testing their knowledge and competency, to inquire of them concerning the sales of adjoining land.</p> <p>2. Instbuotions, When to be- Given. Instructions are not to be given unless applicable to the facts disclosed upon the trial.</p>

<p>Justice of the Peace — Practice. The plaintiff commenced an action before a justice of the peace upon an account duly verified under l 84 of the justices’ act, and no denial of the account, verified by affidavit or otherwise, was ever interposed. The justice, in the absence of the plaintiff, sustained a motion of the defendants to dismiss the action for want of prosecution, but within five minutes thereafter and before he entered the order of dismissal upon his docket, set aside the order of dismissal and overruled the defendants’ motion, and set the case down for trial at a later hour of the same day, and the defendants’ attorney had full notice thereof, and the justice afterward rendered judgment in favor of the plaintiff and against the defendant for the amount of the plaintiff’s aooount. Held, No material error was committed as against the defendants.</p>

Error from Atchison District Court. Action by the Atchison, Topeka & Santa Fé Railroad Company against the City of Atchison, T. J. Emlen, as treasurer of Atchison county, and T. J. Fmlen, to recover certain taxes paid. Judgment for defendants on demurrer to the petition. Plaintiff brings error.

Error from, Atohison District Court. Action by the Atchison, Topeka & Santa Fé Railroad Company against the Board of Commissioners of Atchison County, the county treasurer, and T. J. Emlen, to recover money illegally exacted as taxes. Judgment for defendants on demurrer to the petition. Plaintiff brings error.

Prosecution for the illegal sale of intoxicating liquor. From a judgment of conviction the defendant, Tuchman, appeals. The opinion states the facts.

<p>1. Contempt of Cotjbt — Procedure—Privilege of Accused. Where proceedings for contempt of court are instituted against a party, whereby he is charged with inducing witnesses to absent themselves from-court and otherwise avoid the process of the court, it is error for the-state to place the accused upon the witness stand to prove the contempt charged.' The offense being made a crime by statute, the accused cannot be compelled to give evidence which might criminate himself.</p> <p>2. Case, Followed. The rule to show cause why a party should not be punished for a constructive oontempt of court should be based upon a verified complaint or information. (The State v. Senthorn, 46 Kas.. 613, followed.)</p>

Prosecution by the City of Topeka against Heitman for disturbing the peace. From a judgment of conviction, at the September term, 1889, the defendant appeals.

<p>1. Replevin — Pleading—General Denial. In an action of replevin, any defense to the action may be proved under an answer containing a general denial only; and the plaintiff may, without a reply, rebut any defense proved thereunder.</p> <p>2. Hotel-Keepeb— Omnibus, Exempt. The ’bus of a hotel-keeper, a resident of Kansas, used in connection with his business in Kansas, and necessary to the successful prosecution of such business, is exempt under subdivision 3 of § 4 of the act relating to exemptions.</p>

M'ror from Cowley District Court.. Action by the Winfield Banh against Nipp, as treasurer, and Mclntire, as sheriff of Cowley county, to enjoin the collection of certain taxes. Judgment for defendants, July 8, 1889. The plaintiff Banh brings error. The opinion states the facts.

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

Error from Sedgwick District Court. Action by Koch against the Railway Company, to recover for the injury to and loss of certain hogs. Judgment for plaintiff, June 8, 1889. The defendant brings error. The opinion states the facts.

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

Error from Harvey District Court. Action by the Meyer Bros. Drug Company against Charles A. Malm on promissory notes. Pending a motion by defendant to dissolve an attachment therein, plaintiff applied for a removal of the cause to the United States circuit court. Motion to dissolve the attachment sustained, and the application for removal denied. Plaintiff brings error.

<p>Masteb and Sebvant — Dangerous Machinery — Diability for Damages. When the owners of a horse-power threshing machine are guilty of gross negligence by leaving the bevel wheel and cogs uncovered» knowing them to be imminently dangerous to human life and limb in this uncovered condition, and a workman engaged in threshing with the machine in this condition attempts to oil the cylinder without the knowledge of the uncovered condition of the bevel wheel and cogs, and in this attempt loses his hand, the owners of the machine are liable for damages occasioned by such injury.</p>

<p>Res Judicata — Rule. The rule of res judicata applies as well to facts settled and adjudicated as to causes of action.</p>

<p>Costs in Gbiminai. Oases- — Inability of Complaining Witness — Consti tutional Law. Section 326 of the criminal code, which provides that a prosecuting witness may be committed for his failure to pay costs when the jury find the defendant not guilty, and also find that the prosecution was instituted from malicious motives and without probable cause, is not unconstitutional. (In re Ebenhack, 17 Kas. 618, followed.)</p>

<p> Original Proceeding in Habeas Corpus. </p>

Error from Wyandotte District Court. Proceeding under the bastai’dy act. Prom a judgment against the defendant, Moore, he appeals. The opinion states the facts.