Volume 50 — Kansas Reports

<p>Indian Teebitoby—Cherokee Nation—Will, not Probated in Wyandotte County. Where the only proof of the execution, existence or probate of a supposed last will and testament of a deceased person, who resided in the Cherokee nation, Indian country, and died there, is a portion of the records of the probate court of Wyandotte oounty, Kansas, founded solely upon a certified transcript of a portion of the records of the district court of Coo-wee-scoo-wee district, Cherokee nation, Indian Territory; and the only proof furnished by suoh transcript is proof that a copy of such supposed last will and testament is found recorded in such last-mentioned records; but no certificate is attached to the record, as is required by the laws of the Cherokee nation, showing whether suoh supposed last will and testament was ever “proven, or not, as the case may be;” and it does not otherwise appear that the will was ever probated or proven in the Cherokee nation; and it appears that the widow of the deceased person appeared in the probate court of Wyandotte oounty, but only for the purpose of electing not to take under the will but to take under the statutes of descents and distributions; and it does not appear that any other person was cite^d, summoned or subpcenaed or appeared in suoh probate court, or that the original will was ever in Kansas, or that any evidence was introduced in the probate court ex-eept the aforesaid certified transcript; and the probate court upon such appearance and transcript made the following order, to wit: “Whereupon, it is ordered and adjudged by the court that said Jane Johnnyoake, widow of the said Isaao Johnnycake, deceased, be and she is entitled to one-half of the property of the testator in the state of Kansas, after the payment of all just debts of said testator and the expenses incident to the administration of said estate. Ordered that said will be and the same is approved, except as to the interest of said Jane Johnnyoake as herein stated:” Held, That it does not appear that the will was sufficiently probated or proved to make it effectual to pass the title to property situated in Wyandotte county.</p>

Error from Sedgwiclc Common Pleas Court. On the 2d day of August, 1887, James Priest, in crossing the tracks of a railroad operated by the Atchison, Topeka & Santa Fé Railroad Company, in Wichita, was run over by the cars of the company.

Error from Leavenworth District CowL The opinion states the nature of the action and the material facts. A reasonable construction of the report of the condemnation commissioners showed that their proceedings were valid, and that the land was duly and legally condemned. The court erred in excluding their report. Lewis, Em. Dom., §418; Gen. Stat. of 1889, ¶ 1391.

Error from Sedgwiclc Common Pleas Court. The opinion herein, filed December 10, 1892, contains a sufficient statement of the facts. The court erred in the admission of the testimony of certain witnesses concerning the difference in the value of the land by reason of the construction and operation of the railroad.

Error from, Lyon District Court. Action by Hogue against the Railroad Company, to recover damages for expulsion from defendant’s train. Judgment for plaintiff. The defendant company comes to' this court. The opinion states the facts. 1.

Error from Saline District Court. The opinion, filed December 10,1892, contains a sufficient statement of the facts. Can an action, with leave of the court, after the sustaining of a demurrer to the evidence and the making and overruling of a motion for new trial, be dismissed by the plaintiff, over the objections of the defendant, without prejudice to a future action?

Error from Pratt District Court. Action brought upon a redelivery bond in replevin. Judgment for defendants, Breidenstein and two others, at the May term, 1889. The plaintiff company brings the case to this court. The opinion states the facts.

Error from, Montgomery District Court. The opinion states the case.

Error from Republic District Court. Action by Caldwell & Peterson, to declare their lien on certain personal property of defendant Miller prior to that of defendant Neerman. Judgment for plaintiffs, at the January term, 1889. The defendant Neerman comes to this court.

Error from, Nemaha District Court. The opinion states the material facts. “All contracts are to be construed to accomplish the intention of the parties, and in determining their provisions, a liberal and fair construction will be given to the words, either singly or in connection with the subject-matter.” Binghamton Bridge Case, 3 Wall. 51; Grant v. Leaah, 20 La.

Prosecution for murder in the first degree. From a conviction for murder in the second degree, defendant, Smith, appeals. The facts are stated in the opinion. The court erred in overruling the defendant’s plea in abatement. There was no waiver of a preliminary examination. It, therefore, became necessary for the state to prove its case.

Error from Kingman District Court. Action to foreclose a mortgage. The facts are fully stated in the opinion, filed December 10, 1892.

Error from Labette District Court. At its February term, 1889, the district court reversed an order of the probate court directing the sale of certain real estate for the payment of debts of the decedent and the costs of administration. Plaintiff, Barbe, brings the case to this court. The facts appear in the opinion. 1. The widow and children of A. B. Hyatt could hold the homestead free from the payment of debts only so long as they occupied it as a homestead.

Error from Ottawa District Court. The Bank of Tescott, a banking corporation, located in Ottawa county, in this state, brought its action against the Kanopolis Creamery Company and others, upon a promissory note, of which the following is a copy: “$950.

Error from Harper District Court. The facts appear in the opinion. Judgment for plaintiff, Morse, at the October term, 1889. The defendant Railway Company brings the case to this court. The district court did not have jurisdiction by way of appeal from the condemnation proceedings, because no valid and binding bond was filed within the time required by law.

Error from Nemaha District Court. This was an action brought by George W. Pitkin & Co. to recover from the firm of John Y. Benfer the sum of $347.07, for paints and painters’ materials which plaintiffs had sold and delivered to defendants.

Error from McPherson District Court. Action to foreclose a mortgage. Judgment for the defendant Railway Company, at the January term, 1889. Plaintiff, Rand, comes to this court. The opinion states the facts. The railroad company abandoned its proceedings for the condemnation of the right-of-way across the Sterling property. By this abandonment and the acceptance of this deed of general warranty, it took its title subject to the plaintiff’s lien under her mortgage.

Error from Kingman District Court. Action by Barton Bros, against Bobbins, to recover damages for fraudulent representations. Judgment for plaintiffs for $624.84. Defendant comes to this court. The opinion states the facts. The objection to the introduction of been sustained, for the reason that the evidence should have amended petition did not state a cause of action, in this, that it did not allege an intent on the part of Robbins to cheat,, injure or defraud the plaintiff.

Original Proceeding in Mandamus. Action by Joseph Rosenthal against the State Board of Canvassers of the State of Kansas and others, to compel defendants to determine that he has received the highest number of votes cast in the 121st representative district for member of the house of representatives, and to issue a certificate therefor. Writ refused. All of the material facts appear in the opinion, filed January 7, 1893.

Original Proceeding in Mandamus. Action by Ed. Shellabarger against the Board of Commissioners of Jackson County, and another, to compel defendants to recanvass the votes cast for representative of the 38th representative district in the general election in 1892. Writ refused. The material facts are stated in the opinion herein, handed down January 7, 1893.

Original Proceeding in Mandamus. Action by J. W. Wilds, to compel The State Board of Canvassers to recanvass the returns from Republic county, and declare plaintiff elected representative of said county, instead of J. M. Foster. The material facts appear in the opinion, filed January 7, 1893.

Original Proceeding in Mandamus. Action by O. M. Rice against the Board of Canvassers of Coffey County and others, to compel defendants to recanvass the returns for member of the legislature, and send a corrected. abstract of the votes cast for representative in Coffey county. Writ refused. The facts are stated in the opinion, filed January 7, 1893.

Original Proceeding in Plabects Corpus. Action by L. C. Gunn to obtain his discharge from an arrest made by C. C.’Clevenger, acting sergeant-at-arms of the house of representatives of the state, on the ground that such house was an illegal body, and such officer had no authority to make the arrest. 'Writ denied.

Original Proceeding in Quo Warranto. At the general election held on the 8th day of November, 1892, T. E. Demaree was a candidate for the office of county commissioner of Seward county, from the third commissioner district. At the election, he received the highest number of votes for the office, and was by the board of canvassers declared to be elected.

Original Proceeding; in Quo Warranto. All the material facts are stated in the opinion, filed May 6, 1893. In the case at bar, the act establishing the board of commissioners, and the entire law upon the subject of railroads, consisting of 28 sections, approved March 6,1883, is one entire act. This act was a substitute for house bills 269, 240, 190, 200, 201, 32, 33, 98, 26, and 47.

<p>Cbimustal Case — Conviction of Several Offenses — Collateral Attack. The defendant, who was prosecuted in three separate criminal oases in the district court of Leavenworth county, all for grand larceny, and numbered respectively 2184, 2185, and 2193, was sentenced to imprisonment in the penitentiary as follows: In the case numbered 2185, he was sentenced for the period of seven years from the time of the sentence. In the case numbered 2184, he was sentenced “for a period of seven years from and after the expiration of the sentenoe in case number 2185.” In the case numbered 2193, he was sentenced “for the period of seven years from and after the expiration of the sentence in case numbered 2184.” Held, That the sentences in the oases numbered 2184 and 2193 cannot be considered as void when attacked collaterally in a habeas corpus proceeding, but must in such a proceeding be held to be valid, and that the defendant may be rightly imprisoned under them.</p>

' Appeal from Comanche District Court. Prosecution for grand larceny; verdict of guilty, and judgment rendered thereon. Defendant, Hunter, appeals. The facts appear in the opinion. There is no scintilla of evidence of the guilt of this defendant; not only do the circumstances not all concur to show that the prisoner committed the crime, but they are all consistent with some other rational conclusion.

Error from, Butler District Court. Action by El Dorado Township, in Butler county, against Gordon and others, on a township treasurer’s bond. At the March term, 1892, separate demurrers to the evidence were sustained, and plaintiff brings error. Gordon executed a bond, and the amount and sufficiency thereof was approved by the board of county commissioners on the 17th day of April, 1885.

Error from Stafford District Court. The opinion states the case. The court should have considered the motion for a new trial, and approved the verdict, or set it aside if erroneous, and its refusing to do so was error. M. A. & B. Rid. Co. v. Keeler, 32 Kas. 163.

<p>Agbeement to Loan on Mortgage—Action to Recover Amount. Evidence, findings of fact and conclusions of law examined, and found to authorize the judgment rendered by the trial oourt.</p>

Error from Elk District Court. Action by Oberlender against Upcher and two others, to recover for certain damages caused by defendants’ bull. On February 14, 1890, judgment was rendered for plaintiff for $200. The defendants bring the case to this court. The material facts are stated in the opinion.

Prosecution for obtaining money uuder false pretenses. Verdict of guilty, and judgment thereon, January 27, 1892. Defendant, Margaret J. Palmer, appeals. The opinion states the facts. There is absolutely no proof that the complaining witness, McClelland, was defrauded or harmed, but there is proof that he has not been harmed, not defrauded. This case comes precisely within the reason of the rule in The State v. Clark, 46 Kas. 65; The Slate v. Matthews, 44 id. 596.

The facts sufficiently appear in the opinion, filed January 7, 1893. . The court should have permitted defendant, when testifying as a witness in his own behalf, to testify that in a difficulty between these same parties, on the 26th day of November, Henry Scheurman, the injured party in this trouble, had used a weapon on defendant.

Error from Shawnee District Court. Action by Botsford and another against the Barber Asphalt Paving Company and C. E. Squires. Judgment for plaintiffs. Defendants brought the case to this court. Defendants in error moved to dismiss the proceedings in error. The facts sufficiently appear in the opinion, filed January 7, 1893.

<p>Review—Record. Before the supreme court can determine the sufficiency of the evidence introduced by the plaintiff in the trial court to sustain his cause of aotion, the record must contain either the pleadings of the parties or a short statement of the issues in controversy between them.</p>

Error from Wabaunsee District Court. Action by Weeks and another against Sanford, to remove a cloud from their title to certain lands. Judgment for plaintiffs, at the May term, 1889. The defendant comes here. The opinion states the facts of this case—No. 6590.

M'ror from Wabaunsee District Court. Action by Weeks and another against Sanford, to declare plaintiffs to be the owners of a certain tract of land, and to quiet their title thereto. Judgment for the plaintiffs, at the May term, 1891. The defendant comes to this court. The opinion states the facts of this case—No. 8218.

Error from Wabaunsee District Court. Action by Oberlm College and others against E. II. Sanford and others to foreclose a mortgage. There was a judgment of foreclosure, at the May term, 1890, and Sanford comes here. The opinion states the facts. The errors are too numerous to be specially enumerated. The counterclaim should have been allowed as against all the defendants in court, and the motion for a new trial should have been sustained. 4 Am. & Eng.

Fh'ror from Frcmklin District Court. Action by Ward against the Continental Insurance Company, of the city of New York, on a fire-insurance policy. Judgment for plaintiff, at the October term, 1889. Defendant Company brings error. The facts appear in the opinion. The court, in its charge to the jury, made a new contract for Ward, better than he made for himself.

Error from Coffey District Court. On, and for more than five years prior to, the 18th day of January, 1892, and at this time, C. O. Smith was, and is, the publisher of the Burlington Republican, a weekly newspaper, printed and published in the city of Burlington, in the county of Coffey, in this state, and having a general circulation therein.

Error from Hashell District Court. Action to restrain the collection of a certain tax. A decree granting a temporary injunction in behalf of the plaintiff Bank was reversed by the district court, and it brings error. The facts are stated in the opinion.

Error from Ford District Court. Action by Averill against McGarry to foreclose a mechanic’s lien. Judgment for the plaintiff, sustaining the lien, at the September term, 1889. The defendant comes to this court. The opinion states the facts. The court erred in permitting the plaintiff below to testify that the account which he had filed for a mechanic’s lien was correct.

The facts appear in the opinion. Upon the close of the state’s evidence, the defendant moved the court, as to each count, to require the prosecution to elect on which sale, or proof of sale, it would stand in support of said count, each of which motions was at the time overruled. That the overruling of this request was prejudicial error, under the repeated decisions of this court, can, it seems to us, be no longer questioned.

Error from Sedgwick Common Pleas Court. Action by the Judson University, a corporation, against Kinkaid, on a certain written instrument. October 22, 1889, there was a judgment dismissing the case and overruling a motion for a new trial. Plaintiff comes to this court. The opinion states the facts. The execution of the instrument imports a consideration, and none need be proved by the plaintiff.

Error from Wyandotte District Court. Action by Manning against The City for personal injuries caused by a defective sidewalk. Judgment for plaintiff, on October 5, 1891. A motion for a new trial was overruled, and defendant brings the case to this court. The opinion states the facts.

<p>Tax for County Purposes —Valid Statute. Chapter 134 of the Laws of 1887, authorizing the board of county commissioners of Wyandotte county to levy and collect a tax not exceeding 10 mills on the dollar of the taxable property of the county for general county purposes, is not unconstitutional or void, but is valid, although the general law in force when said chapter 134 was enaoted permitted counties such as Wyandotte to levy only 5 mills on the dollar for such purposes.</p>

Brrov from JBowbon District Gow't. Elizabeth Jenkins brought this action to recover the possession of a stock of merchandise, together with some fixtures and tools, against Wm. F. Dinklage, and A. D. Jones, the assignee of Dinklage. She claimed the right of possession under a chattel mortgage executed by Dinklage on March 2, 1889, but which was not recorded until August 5, 1889, the day on which Dinklage made an assignment.

Error from Barber District Court. Action to set aside a conveyance of land. A conditional judgment for the plaintiff, Dunbar, as guardian, was rendered at the February term, 1889. The plaintiff brings the case here. The opinion states the facts. The only theory upon which the plaintiff would be liable for costs in this action is the failure to make a tender of the amount received by the plaintiff’s ward for the land before bringing suit.

Error from Bourbon District Court. Action to recover for personal injuries. Judgment for plaintiff, at the October term, 1889. The defendant Company comes to this court. The opinion states the facts. The court erred in giving the jury the special instructions asked by the defendant in error. A. T. & S. F. Rid. Co. v. Ledbetter, 34 Kas. 332; Hickey v. Taaffe, 12 N. E. Eep. 290; Warren v. S. K. Rly. Co., 37 Kas. 412; Sanborn v. A. T. & S. F. Rid. Co., 35 id. 298; U. P. Rly.

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

Error from FranJclin District Court. All the material facts are stated in the opinion, filed January 7, 1893. Whetstone is unquestionably liable as a stockholder of the Pomona Creamery Company. It is well settled that one who assists in organizing a corporation, and signs such an agreement, is held to all the liabilities and has all the privileges of a stockholder. Thomp. Liab.

Error from Cloud District Court. The opinion states the facts. Within Farmers’ Bank v. Bank of Glen Elder, 46 Kas. 376, and Howard v. National Bank, 44 id. 549, the defendant in error could have no right as against plaintiff in error, under the facts, by virtue of his chattel mortgages of April 17, 1886. The names “Samuel M. Johnston” and “S. M. Johnson” are not the same; the names “Johnston” and “Johnson” are not even idem sonans.

Error from Lyon District Court. The opinion states the case. Held: it may be stated: (a) In none of the session laws and in none of the statutory revisions has this matter ever been indexed under the head of “ Exemptions.” (6) As the landlord-and-tenant act was a general law, the legislature intended a man could waive his general exemptions as to property or the consideration for which was in esse…

<p>1. Review—Harmless Errors. Immaterial errors, which do not and cannot prejudice the rights of a party complaining, are not sufficient grounds for the reversal of the judgment of a trial court.</p> <p>2. Insubanoe — Title to Property — Insufficient Defense. An insurance oompany cannot insist, as a defense of an action on a policy issued upon a small frame store building insured for $50, and the contents thereof insured for $800, after it has accepted the risk and the premium therefor, that the interest of the insured in the land upon which the store building was located was other than the title in fee, if, at the time of the issuance of the policy by its general agent, he “supposed” or knew that the insured was not the owner of the land upon which the store building was located, if the insured made no misrepresentations, false statements or concealments concerning the land or the title thereof.</p> <p>3. Deposition—Exception, When Required, When not. No exception, other than for incompetency or irrelevancy, shall be regarded to a deposition read upon the trial, unless made in writing, and filed with the papers in the cause before the commencement of the trial. (Civil Code, §§ 363, 361.)</p>

The opinion states the case. The motion in arrest of judgment ought to have been sustained. The first count, the only one on which the defendant was found guilty, does not state facts constituting a public offense.

Error from Gray District Court. Action by Roberts against Dixon, to recover a sum of money alleged to have been lent to defendant. Judgment f®r defendant, at the November term, 1889. The plaintiff brings the case here. The opinion states the facts.

Error from Butler District Court. The opinion states the case. The court erred in instructing the jury as to the damages the plaintiff was entitled to recover. Railroad Co. v. Gardiner, 32 Am. & Eng. Rid. Cases, 250, 251; Powers v. Railway Co., 33 Ohio St. 435; Bohm v. Elevated Rid. Co., 29 N. E. Rep. 802. The verdict of the jury is excessive, and contrary to the special findings, and the special findings of the jury are evasive.

<p> Error from Russell District Court. </p> <p>The facts appear in the opinion.</p> <p>The cross-petition of defendant, Frank Hulett, does not state facts sufficient to constitute a cause of action against the plaintiffs in error. Drake v. National Bank, 33 Kas. 634-639; Smythe v. Parsons, 87 id. 79-81.</p> <p>“ The right of action must be complete before the action is brought.” 1 Wait’s Ac. and Def. 41, and cases cited. See, also, Brown v. Mining Co., 32 Kas. 532; Reynolds v. Thomas, 28 id. 814; Hutchinson v. Benedict, 49 id. 545.</p> <p>By the terms of this mortgage, under which the note is claimed to have matured, the note did not mature, and no action could be maintained upon it, and no judgment could be rendered thereon, before the end of the three -years specified therein. O. C. Rid. Co. v. Cent. Tr. Co., 133 U. S. 83; Noble v. Greer, 48 Kas. 41; Brown v. Mining Co., 32 id. 532; Reynolds v. Thomas, 23 id. 814.</p> <p>“Where a judgment is not supported by the pleadings, the error is manifest in the record, and can be reversed without any motion for a new trial, and without exceptions being taken to the erroneous judgment.” Land and Cattle Co. v. Daly, 46 Kas. 504; Comm’rs of Wyandotte Co. v. Arnold, 49 Kas. 279; Lender v. Caldwell, 4 id. 339; Zane v. Zane, 5 id. 134; Woolley v. VanVolkenburgh, 16 id. 20; McKinstry v. Carter, 48 Kas. 428; Brown v. Tuppeny, 24 id. 29; Koehler v. Ball, 2 id. 160; Windmill Co. v. Buchanan, 46 id. 314-316; Crawford v. Shaft, 46 id. 704.</p> <p>“Whether the petition stated sufficient facts is not a question the supreme court can look into until it first be presented to the district court.” McBride v. Hartwell, 2 Kas. 411. See, also, Green v. Dunn, 5 Kas. 254; Wilson v. Fuller, 9 id. 189; Moore v, Wade, 8 id. 381.</p> <p>As authority for this court to review the alleged errors, see Lender v. Caldwell, 4 Kas. 339; Woolley v. Van Volkenburgh, 16 id. 20; Land and Cattle Co. v. Daly, 46 id. 504; Windmill Co. v. Buchanan, 46 id. 314; Greer v. Adams, 6 id. 206.</p> <p>The service of summons by plaintiff, American State Bank, was sufficient to authorize the judgment. It brought plaintiffs in error into court for all purposes, and they were bound to take notice of the cross-petition of Hulett. Kimball v. Connor, 3 Kas. 414. “The acceptance of a deed which in terms provides that the grantee is to assume a certain incumbrance on the granted premises makes a contract in writing by such grantee to pay that incumbrance, upon which contract the holder of the incumbrance may proceed directly against the grantee and recover.” Schmucker v. Sibert, 18 Kas. 104. See, also, Scott v. Morning, 23 Kas. 253; Fair-child v. Lynch, 42 N. Y..Superior Ct. 265; 1 Jones, Mortg., §'748.</p> <p>The interest was payable annually by the terms of the note, and default in its payment made the whole amount due. Winchell v. Coney, 5 Atl. Rep. (Conn.) 354.</p>

Error from Stevens District Court. Action by the Wilson & Toms Investment Company against Hillyer and wife, to recover for money expended for the use of defendants. The defendants’ motion to set aside a judgment against them, and grant a new trial, was granted July 2, 1889. The plaintiff comes to this court. As bearing generally on this case we cite: Hill v. Williams, 6 ICas. 17; Laithev.

<p> Motion for Rehearing. </p> <p>The facts are stated in Insurance Co. v. Bank of Pleasanton, 48 Kas. 397, et seq., and in the opinion herein, filed January 7, 1893.</p>

<p>1. Insueanoe—Stipulation to Arbitrate—Right of Action. Where a stipulation is contained in an insurance policy, that “in case differences shall arise as to the amount of any loss or damage, . . . the matter shall at the written request of either party be submitted to two impartial appraisers,” etc., and it does not appear that any differences of opinion ever arose with regard to the amount of the loss or damage, and neither party ever presented to the other party any written request or any request asking or suggesting that appraisers or arbitrators or referees should be selected or appointed, held, that it was not necessary in such a case, under such stipulation, that there should be any appraisement or arbitration or reference before the assured would have the right to commence an action against the insurance company for the reoovery of his loss.</p> <p>2. Notice—Proof of Loss. The insurance policy also contained a stipulation that “persons sustaining loss or damage by fire shall forthwith give notice in writing of said loss to this company.” The formal notice was not given until 12 days had elapsed after the fire had occurred. Held, Under the facts of this case, that the assured did not forfeit his rights under the policy because of the delay in giving the notice.</p> <p>3. Finding—Waiver of Objections. A retention by an insurance company of proofs of loss for 48 days without objection warrants a finding that all objections were waived.</p>

Error from Leavenworth District Court. On the 13th day of November, 1887, Wm. Telle was a fireman on one of the engines of the Leavenworth Rapid Transit Railway Company. He was injured about 11:30 A. m. on that day, by the engine on the main track colliding with a coal car which was close to the main track on the west side thereof. This engine was the ordinary street motor, commonly known as the “dummy,” and to this engine were attached two passenger cars.

<p>Supbeme Ooubt—Jurisdictional Amount—Case Dismissed. A judgment was rendered in the district court on January 30, 1889, for $62.38, in an action in which the amount in controversy did not exceed that amount. Subsequently, and on March 20, 1889, an aot of the legislature took effect limiting the appellate jurisdiction of the supreme court to such sums only as exceed $100, except in certain cases, not including the present case. On January 13, 1890, the defendant, feeling aggrieved, filed a petition in error and case-made in the supreme court to reverse the aforesaid judgment. Held, That the supreme oourt has no jurisdiction to hear and determine the ease, and that the case must be dismissed from the supreme court, although no question of jurisdiction was raised in the supreme court by either party.</p>

Error from Morris District Court. Action by Guthrie against the George B. Barse Dive block and Commission Company and others, to recover for the wrongful conversion of live stock. Judgment for plaintiff. Defendants bring error. The material facts are set forth in the opinion. 1. There was not the slightest justification in the pleadings or in the evidence for the rendition of a judgment in favor of plaintiff for more than 50 head of cattle. 2.

<p>Conversion—Judgment—Bemittitur. In an action for the wrongful conversion of two lots of live stook, one of hogs and another of cattle, where a general finding is made in favor of the plaintiff for both lots, and upon a review of the judgment based thereon it appears that the evidence was insufficient to sustain a reoovery for the cattle, but was sufficient to show the right of the plaintiff to recover for the hogs, and where it also appears that there is practioally no dispute as to the identity or value of the hogs, the plaintiff may be permitted to take judgment for the value of the hogs and remit so much of the judgment as is in excess of that amount. In such a case, if the remission is made, the judgment of the district court will be affirmed; otherwise, it will be reversed.</p>

Error from Geary District Court. Action by Fogarty against the Junction City Pressed Brick Company, to enjoin defendant from using coal and other material injurious to plaintiff’s crops, and for damages. At the November term, 1889, a demurrer to the petition was sustained, and plaintiff prosecutes a writ of error. Other material facts appear in the opinion.

E/rror from Brown Distriot Court. Action by Duff&Ellson against MoNeely, on written agreements. Judgment for plaintiffs, at the February term, 1889. Defendant brings error. The opinion states the facts. There is little or no dispute in the evidence as to the $400 being paid and indorsed on the contract of April 25, 1887, under a mutual mistake, and on the belief of McNeely that there was as much as $1,400 due William Plank from the railway company on the April board bills.

Error from Butler District Court. This action was commenced on October 17, 1888, by Leo N. Leslie against Benjamin R. Bacon, for the specific performance of a written contract, which plaintiff claimed had been entered into at Kansas City, Mo., on October 1, 1888, by himself and defendant, under which Leslie was to convey to the defendant the following-described property: “ Lots 33 and 54, Bernard Place, Kansas City, Mo., with the buildings and other improvements thereon,…

<p> Error from Barber District Court. </p> <p>Judgment for plaintiffs, Neff and wife, at the November term, 1889. The defendant Bank comes to this court. The opinion states the case.</p>

Original Proceeding in Quo Warranto. Action to dissolve the consolidation of the cities of Wyandotte, Kansas City, and Armourdale; heard on answer and demurrer to the answer. Demurrer overruled, and judgment for the defendants. All the material facts are stated in the opinion herein, handed down January 7, 1893.

Error from Marion District Court. All of the material facts are stated in the opinion, filed January 7, 1893. The court below erred in overruling the objection made by plaintiff in error to the swearing of the jury, for the reason that the court below had no jurisdiction to try the ease.

Error from Douglas District Court. Action by Susa/n A. Monden, administratrix of the estate of John R. Monden, against the Union Pacific Railway Company, for causing the death of plaintiff’s intestate. Verdict and judgment for plaintiff, June 20, 1889. The defendant Company comes to this court. The opinion states the material facts.

Error from Wyandotte District Court. Action by the Kansas Town Company and others against M. W. Stewart, as county treasurer of Wyandotte county, and others, to enjoin the collection of taxes levied on the property of plaintiffs. Judgment for plaintiffs Pebruary 24, 1892. The defendants bring the case here. The opinion states the facts.

Error from Wyandotte District Court. This action was brought in the court below by David J. Adams, Julius King and F! B. Mitchener against M. W. Btewart, as county treasurer of Wyandotte county, et al., to enjoin the collection of taxes levied upon their property by the city of Argentine. The case was tried upon an agreed statements of facts, and the court rendered judgment in favor of the defendants, perpetually enjoining all the taxes complained of.

<p>Cities—Extension of Boundaries—Void Ordinance. Paragraph 1018, General Statutes of 1889, provides for extending the limits of cities of the third class by proceedings before the board of county commissioners when the territory sought to be added is not subdivided into parcels of five acres or less, but where so subdivided the territory may be added by ordinance only. Paragraph 881 provides for extending the limits of cities of the seoond class by proceedings before the judge of the district court when the territory sought to be added is subdivided into lots and blocks; otherwise, territory may be . added by ordinance only. Held, That an ordinance of a city of either seoond or third class, purporting to extend its limits by adding lands not properly subdivided, is void; and such ordinance cannot be construed to be valid so as to include lands properly subdivided, and exclude all other lands.</p>

B/rror from Reno District Court. Action by Hoyt against Bunker and others, to enjoin defendants from obtaining executions against the stockholders of the Hutchinson Union Stock-Yards Company, and restraining the stockholders from paying the executions till plaintiff’s and defendants’ rights and priorities are finally determined. A demurrer to the petition was sustained, and plaintiff brings error. The opinion, filed Jauuary 7, 1893, states the material facts.

<p> Error from Kingman District Court. </p> <p>Action by the Bank against Gerson and another to recover on a promissory note. Judgment for defendant. Plaintiff comes to this court. At the session in February, 1893, it was decided, and there was filed herein an opinion, (syllabus and opinion by Strang, C.,) recommending an affirmance of the judgment of the court below. By the court, it was so ordered—all the justices concurring. The syllabus therein formulated and declared to be the law is as follows:</p> <p>“Where property has been attached, and subsequently taken from the officer on an order of replevin, it is in custodia legis, pending the result of the replevin suit, and not subject to levy under further orders of attachment against the original attachment debtor.”</p> <p>In due time the plaintiff in error filed a motion for a rehearing. On April 8, 1893, the court sustained the motion, and filed herein a new syllabus, supra, and the opinion, infra.</p>

Error from Kingman District Court. Action of attachment by the Bank against Gerson and others. A motion to dissolve the attachment was sustained, and the plaintiff comes to this court. The opinion states the facts.

Error from Shawnee Bistriet Court. Action by Elsie R. Riley and others against Anna Stein and another, to enjoin defendants from obstructing a private alley. There was a judgment for defendants, and plaintiffs bring error. The other facts are stated in the opinion. The easement in an alley 12 feet wide was an appurtenant of some considerable value to purchasers of these parcels of lots, located as they were.

Error from Barber District Court. Action by Holcomb against Thompson and wife, to recover the amount of a certain mortgage note which plaintiff alleged that… Held: that the case is properly here for review. “ 2. Record further examined, and also held, that the petition states a cause of action.” The defendants in error in due time filed a motion for a rehearing. On May 6,1893, the court sustained the motion, and filed herein a new syllabus, supra, and the opinion, infra.

Error from Roohs District Court. Actions in attachment by Albert E. McKinley and others against E. S. Beavers. Marion E. Beavers replevied the goods, and moved to dissolve the attachments. Held: That the conveyance from the father to the son was not in trust for the benefit of the former, and that the re-conveyance from the son to the father was not made in pursuance of any trust.

<p>1. Anti-Tbust Law—The Word “ Trade.” The word “trade,” as defined by this court in the oase of In re Pinkney, 47 Kas. 89, does not mean interstate oommerce, nor was such a meaning within the contemplation of the court at the time the decision was rendered.</p> <p>2. Insubanoe Business, Not Interstate Commerce. The business of insurance, as ordinarily conducted in this state by insurance companies organized under the legislation of other states, is not interstate oommerce.</p> <p>3. Fobeign Insubanoe Company—Violation of Anti-Trust Law — Prosecution of Agent. Foreign insurance companies doing business in this state, that combine to control and increase the rates of insurance on property within a city in this state, violate the provision of chapter 257 of the Laws of 1889, being “An act to declare unlawful trusts and combinations in restraint of trade and products, and to provide penalties therefor;” and their local agents who attempt to and do enforoe such combined rates are subject to prosecution under the provisions of said act.</p> <p>4. Legislative Poweb—-Valid Statute. The legislature of this state has the power to prescribe the conditions upon which an insurance company organized under and by virtue of the laws of another state can do business within the limits of the state of Kansas.</p>

Error from, Osage District Cowrt. The opinion states the facts. Judgment for plaintiff, Cannon, February 18, 1889. The defendant Franhhouser, as sheriff, and another, bring the case to this court.

Error from Cowley District Court. Action by Corson against Green to foreclose a mortgage of real estate. On May 1, 1889, defendant’s motion to set aside the sale was overruled, and he comes to this court. The facts appear in the opinion.

Error from Wilson District Court. Action on a promissory note. At the February term, 1889, judgment for plaintiffs, Thompson, Blackstock & Co., against defendant, Cross, who comes to this court. The opinion, filed February 11, 1893, states the material facts.

Error from Geary District Court. At the March term, 1889, there was a judgment for defendant, Mackey; and the plaintiff, Yadon, brings the case here.

Error from Johnson District Court. Action by Platt against Tennison, as administrator, to recover her share of an estate administered by the defendant. At the May term, 1889, there was a judgment for plaintiff, and defendant brings the case to this court.

Error from Neosho District Court. Mills appealed from the action of the Board of Commissioners of Neosho County in disallowing his claim for damages in establishing a highway over his land. After such appeal the board filed a disclaimer to said road, and at the April term, 1889, the court dismissed the appeal, from which dismissal appellant brings error.

Error from Atchison District Court. Action by Neenan and others against White; same plaintiff against Black. Both actions, which were brought to recover land, were tried together, at the June term, 1889, and defendants having judgment, the plaintiffs bring the cases here. The opinion states the facts.

Error from Edwards District Court. Achon to recover upon a promissory note. Judgment for the defendants, Falk and another, at the May term, 1889. The plaintiff Company comes here. The opinion states the facts. The warranty is as follows: “That it is manufactured of good material, and good workmanship, and by proper management it will perform well.” The conditions were, that if there was any defect notice was to be given within 10 days. The notice was not given.

Error from Kingman District Court. Action by the Farmers’ & Drovers’ Bank against the Babcock Hardware Company on promissory notes. At the April term, 1889, there was judgment for plaintiff, and defendant’s motion to set aside the judgment was overruled, and it brings error. The facts are substantially stated in the opinion herein, filed February 11, 1893. 1. The three-days limit does not apply to the notice, but to the motion only. The clause says motion, and not notice.

Error from Bourbon District Court. Action by Crimes against the Railroad Company to recover damages for killing two colts belonging to plaintiff. Judgment for plaintiff on December 14, 1889 — Hon. E. F. Ware, judge pro tern., presiding. The defendant company brings the case here. The opinion states the facts.

Error from Neosho District Court. Action by Orvilla Miller and others against Theron S. Mill, to cancel a certain deed. Judgment for plaintiffs, at the December term, 1889. The defendant brings the case to this court. The opinion states the facts.

At the September term, 1891, Aldrich was convicted of murder in the second degree. He appeals. The opinion states the facts.

Error from, Sedgwiclc Court of Common Pleas. This action was brought on the 29th day of May, 1888, by the Wiehita University of the Reformed church in the United States against Henry Sohweiter, M. C. Hutchings, W. S. Dixon, John F. Stites and Wilbur Stites, under the name of Stites Bros., and C. S. Eichholtz, to recover $8,405.15, claimed to be due on the following written instrument: “Wichita, Kas., November 22, 1886. “Whereas, Divers persons have undertaken and promised to…

Error from Cowley District Court. Action by Cooper against Dodson, as sheriff of Butler county, to recover damages for the alleged wrongful conversion of a stock of goods.

Error from Miami District Court. Action by Fannie E. Mallory against D. M. Ferguson, to recover damages sustained by reason of defendant’s certificate to an abstract of title to land. At the October term, 1889, there was judgment for defendant, and plaintiff brings error. All of the material facts appear in the opinion, filed February 11, 1893.

ffiror from Saline District Court. Action by Hoffman against the Railroad Company to recover damages for land taken for defendant for a right-of-. way. April 14, 1889, there was a judgment for plaintiff, and defendant comes to this court. The opinion states the facts.

<p>Injunction — Restraining Collection of Special Tax. A proceeding by-injunction to restrain the collection of special assessments to pay the costs of creating a system of sewerage in a city of the seoond class is not prematurely brought, when it appears that the amount of such assessments has been ascertained, and notice thereof given to the property owners.</p>

Error from Johnson District Court. Action by Watson against Knauber and another to correct a deed. Plaintiff had judgment at the September term, 1888, and defendants bring error. The material facts appear in the opinion herein, filed at the session of the court in February, 1893.

Error from Dichinson District Court. Action by Snyder and another against Fellows and another on a contract. Plaintiffs had judgment in a justice’s court. On a trial on appeal in the district court, plaintiffs had judgment, and defendants, being denied a new trial, bring the case here. The material facts appear in the opinion, filed March 11, 1893.

<p> Error from Barber District Court. </p> <p>Action by Guest against Ramsey and two others to recover a part of the purchase price of a piano. The plaintiff brings here for review an order dissolving an attachment. The facts are stated in the opinion, filed March 11, 1893.</p>

Error from Douglas District (hurt. At the February term, 1889, Thaddeus Stevens was convicted of bastardy, and, on the judgment entered, he brings error. The material facts are stated in the opinion. Plaintiff’s first assignment of error is as follows: That said district court erred in ruling out and excluding evidence offered by said Thaddeus Stevens on the trial of said action in said district court, to which said Stevens excepted.

Error from, Pratt District Court. Action to cancel a certain mortgage. Judgment for plaintiff, Everhart, on February 15, 1889. The defendants, Donaldson and others, bring the case to this court. The opinion states the facts.

Error from, Elk District Court. Action by the Insurance Company against Dolan to foreclose a mortgage. At the May term, 1889, there was a judgment for plaintiff for an amount less than it claimed, and it brings the case here. The opinion states the facts.

Error from Elh District Court. Action by the Union School Furniture Company against School District No. 60, Elk county, to recover the value of school furniture sold to defendant. There was judgment for defendant, and plaintiff brings error. The opinion states the facts. The school district and the school board both had the power and authority to purchase said school furniture. Gen. Stat. of 1889, ch. 92, §§ 28, 57; Conklin v. School District, 22 Kas. 521.

Error from Brown District Court. Action by Patton against Wells and another. Plaintiff had judgment against defendant, who comes here. The opinion states the facts.

Error from JacJcson District Court. Action by the Railroad Company against Walker and another for the specific performance of a land contract. On the judgment and orders entered at the November term, 1889, the plaintiff brings error. The facts appear in the opinion. The duty of the court, upon plaintiff’s failure to appear, is plainly fixed by statute. Civil Code, §397; also, §§396,398. See, also, Moore v. Toennisson, 28 Kas. 608, 610.

Error from, Lyon District Court. This was an action of ejectment, brought by Annie P. Calloway and the other surviving heirs of James Calloway, deceased, to recover 80 acres of land situated in Lyon county. At the September term, 1889, the cause was tried by the court without a jury, and the following fiudings of fact and conclusion of law were made: “1. On the 25th day of December, 1878, James Calloway died, seized of the property in controversy.

Error from, Atchison District Court. The opinion herein, filed February 11, 1893, contains a sufficient statement of the nature of the action and the facts. June 22, 1889, judgment for plaintiff, Lemuel Ingels, against Milliard F. Ingels and another. The defendants bring the case to this court.

Error from Sedgwick District Court. Action by Neiderlander against Starr, to recover his commission for the sale of certain real estate. Defendant had judgment, and plaintiff comes here. Held: that if insolvency be relied upon, it must be pleaded and proven as a defense. The same rule is laid down in Cook v. Kroeneke, 4 Daly, 268.

The facts sufficiently appear in Neiderlander v. Starr, supra, and in the opinion herein, filed at the session of the court in July, 1893.

Error from Meade District Court. Replevin by Vaughn against Hixon, as sheriff, and others. At the September term, 1889, defendants had judgment, and plaintiff brings error. The opinion states the facts.

M’ror from, Sumner District Court. Fjrick & Company brought au action against C. G. Darned & Co. to recover the sum of $1,741.59.

Error from Pratt District Court. Proceedings by the Union Stove & Machine Worhs against James Ryan, as sheriff of Harvey county, and John D. Caswell, to amerce defendant Ryan for failure of official duty. On the judgment entered the Union Stove & Machine Works brings error.