Volume 51 — Kansas Reports

Lund was convicted of unlawfully selling intoxicating liquor. He appeals. 1. Held: irrelevant and immaterial. 3. Counsel for appellant cite the case of The State v. Brooks, 33 Kas. 708, which is .itself a refutation of counsel's argument in support of the proposition that “the state should have been required to have in some manner shown that the defendant was not being convicted for an offense of which the…

Error from Sedgwick District Court. Action by Brown against the Railroad Company and another, to recover damages for malicious prosecution. Verdict for plaintiff. Defendants’ motion to withdraw their motion for a new trial was denied, and the company brings the case to this court.

Error from Marion District Cowrt. Action by Moulton against Carter on a promissory note. Plaintiff’s demurrer to defendant’s answer was sustained, and defendant comes to this court. The opinion states the facts. 1.

Error from Jewell District Court. Proceeding by the Railroad Company against Emery to condemn land for its right-of-way. Defendant appealed from the award of the commissioners, and in the district court a verdict was rendered in his favor. Plaintiff brings the case to this court. The opinion states the facts. The court erred in permitting plaintiff to introduce, in rebuttal, evidence concerning collateral matters tending to impeach witnesses testifying thereon. See A. T. & 8.

Error from Sumner District Court. The opinion states the case. 1. Sparks gave Stuller no notice to quit before bringing this action. This is necessary under the statute, (Gen. Stat., ch. 81, § 161,) and Sparks cannot maintain this action without it. See also Nason v. Best, 17 Kas. 408; Douglass v. Whitaker, 32 id. 381, where the notice was held mandatory. 2. Each party had color of title, and the right of possession depended on who) held the actual title.

Erroi■ from Edwards District Court. Action by Klime against the Cattle Company to recover damages for property destroyed by a fire started by defendant. Judgment for plaintiff. The defendant comes here. The opinion states the facts. 1. The fire set out by the cattle company to burn trash, weeds and grass was in its inclosed field, and was for a lawful purpose.

<p>1. Moetgagoe, Death of — Foreclosure of Mortgage. The failure of a mortgagee to exhibit his mortgage debt as a demand against the estate of a deceased mortgagor within three years after letters of administration have been granted will not preclude him from fore closing his mortgage lien, and subjecting the mortgaged property to the payment of the debt.</p> <p>2. Olaim — Presentation. If he relies on the general assets in the hands of the administrator for payment of his debt, or any part of it, he must present the same in the manner required by § 80 of the act relating to executors and administrators; and failing to do this, he is limited to the proceeds arising from the sale of the mortgaged property.</p>

Error from, Brown District Court. Action by the Smith-Frazier Boot and Shoe Company against White and another, to recover for goods sold and delivered. A judgment for plaintiff, rendered by a justice of the peace, was affirmed in the district court, and defendants bring the case to this court. The opinion states the facts.

Error from Haskell District Court. Action by the Bank of Santa Fé against the Haskell County Bank and seven other defendants, to cancel a certificate of deposit held by defendant bank, and for damages for a conspiracy against remaining defendants. There was a judgment against defendant bank, and against defendants Rosenthal, Kern, and Wadsworth, and all the defendants have joined in a petition in error in this court.

Error from Haskell District Court. Action by the Haskell County Bank against the Bank of Santa Fé to recover the amount of a certificate of deposit. Judgment for plaintiff, and defendant comes to this court. The opinion states the facts.

Error from Atchison District Court. Proceedings in attachment by the Boot and Shoe Company and others against August and another. There was an order discharging an attachment, and plaintiffs bring error. 1. No affidavit denying the grounds of attachment was made or filed by Jacob August, or by the defendant, or by anyone for the defendant. Until an affidavit denying the grounds of the plaintiff’s affidavit for attachment was made or filed, there was no issue to try.

Error from Atchison District Court. Garnishment proceedings by the P. Cox Manufacturing Company against E. J. August; Owen J. Lewis against same; and Kimber L. Barton and others against same. The three cases were heard together, and defendant’s motion to dissolve the garnishment in each action was sustained, and plaintiffs bring error. The opinion states the facts.

Error from Jewell District Court. On August 31, 1888, Simon C. Peters commenced two actions against John H. Schaeffer in the district court of Jewell county to recover, in one action $1,675 and interest, and in the other action $1,650 and interest, upon two promissory notes executed by Schaeffer on July 19, 1887.

M'ror from Cowley District Court. Action by the City of Winfield against the Winfield Water Company, to cancel a contract for supplying the city with water. A demurrer to the petition was sustained, and the plaintiff comes to this court. The opinion states the material facts.

Error from Clay District Court. Action brought by the Board of Education of the City of Clay Center against D. H. Myers, as the assignee of the estate of Johu Higinbotham, to recover $3,265.71, alleged to be a trust fund in the hands of the assignee, to which it was entitled. Upon the evidence submitted, the district court made the following findings of fact and conclusions of law: “findings of fact. “1.

Error from Cowley District Court. Action by the Winfield Water Company against the City of Winfield to recover water rents. The plaintiff company recovered a judgment for $1 only, and brings the case to this court. The material facts are stated in the opinion.

On the 14th day of September, 1892, an information was filed against A. B. Smith, charging him with a violation of the prohibitory liquor law in selling certain liquors without a permit. Trial had on the 25th of November, 1892.' The jury returned a verdict of guilty, and the district court sentenced the defendant to pay a fine of $100, and to be imprisoned in the jail of Pratt county for the period of 90 days.

<p> Appeal from Harper District Court. </p> <p>Prosecution against Lumd for keeping a place as a common nuisance where liquors were kept for sale, and for selling liquors in violation of law. Defendant was found guilty of keeping a nuisance, and judgment was rendered thereon. He appeals. The material facts are stated in The State v. Luncl, 49 Kas. 209, and in the opinion herein, filed at the April, 1893, session of the court.</p>

Error from Harper District Court. Proceedings by tbe Railway Company against Hammers, to condemn a portion of his land for a right-of-way. On appeal to the district court, defendant had a judgment for $625, and plaintiff comes to this court. The general verdict is made up from the $25 for the land actually taken and $600 based upon the conjectural damages which might occur from the frightening of stock.

Error from Pratt District Cov/rt. Action by Mackey against Beard, to recover the possession of certain personal property. There was a judgment for plaintiff before a justice of the peace; on appeal to the district court, judgment for plaintiff, at the May term, 1889, and defendant brings error.

Error from Harvey District Court. Action by the Chicago Lumber Company against Fretz and others to enforce a mechanic’s lien. Judgment for the defendants at the January term, 1889. The plaintiff brings the case to this court. The facts are stated in the opinion. The court erred in giving judgment against plaintiff in error and in favor of defendants in error on the findings of the jury.

<p>Review — Certificate to Transcript. To secure a review of the rulings and judgment of the district court upon a transcript,-it is essential that the certificate of the clerk attached should show that it is full and complete.</p>

Error from Shawnee District Court. Action by Reed against Morse and others. Judgment for defendants at the January term, 1889. The plaintiff brings the case here. The facts appear in the opinion. “A tax deed must conform substantially to the requirements of the statute under which it is executed. If ‘the seal of the county’ be omitted in its authentication the deed is void.

Error from Cowley District Court. The facts in this case are substantially as follows: Wealthy J. Allen was the owner of a patent combined ironing board, stepladder and bosom and sleeve board for 16 states and territories, in which the patent was of the estimated value of $1,000. In the year 1888, J. L. Stevens claimed to own certain real estate and farm property in Riley county, in this state, containing about 80 acres of unimproved land.

Error from, Osage District Court. Action of ejectment by Albaoh against Peterson and others. Judgment for the plaintiff, at the April term, 1890. The defendant Peterson brings the case here. The opinion states the facts.

Error from Sedgwick District Court. The facts on which are based the claims of Lewis Simons, the plaintiff, and Hester McLain, the defendant, are as follows: On the 17th day of May, 1872, and for… Held: that a deed executed to husband and wife created an estate in joint tenancy, and that the estates by entireties and joint tenancy are identical. See, also, Ram. Ten. 170-174.

Error from FranJclin District Court. Action by Henry Martin, as administrator of the estate of Lindley M. Carleton, deceased, against the Southern Kansas Railway Company and the Atchison, Topeka & Santa Eé Railroad Company, to recover damages sustained by the death of the intestate, caused by a runaway team frightened by defendants’ trains. There was judgment for defendants, and plaintiff brings error.

Error from Thomas Distriet Court. Proceedings in attachment by Steele & Walker against J. E. Baum. A motion by Enoch Baum to discharge the attachment was sustained, and the plaintiffs come to this court. The opinion states the facts. The motion of defendant in error should be sustained.

Error from Johnson District Court. Action by Brassfield against the Atohison, Topeka & Santa Eé Railroad Company to recover for personal injuries sustained while in the employment of defendant. November 12, 1889, there was a judgment for plaintiff, and defendant brings error. 1. The evidence is insufficient to show negligence in a fellow-servant, and the verdict cannot therefore stand. Negligence, in a suit_ brought by the servant against the master, will not be presumed.

Kingman District Court. Prosecution for a violation of the prohibitory liquor law. From a verdict of guilty and a judgment thereon, at the September term, 1892, the defendant, Bwrkett, appeals. The opinion states the facts. The motion to quash the first three counts of the information should have been sustained. The information was indefinite and uncertain, and the counts referred to did not negative the presumption of sales according to law.

Error from Johnson Eistriot Court. This action was commenced in the court below by James M. Gille against E. R. Enmons et al., to recover on two promissory notes made by D. R. Emmons, one payable to… Held: where insolvency has been alleged, or where there has been fraudulent or deceitful conduct on the part of a vendor, that a court of equity would interfere.

Error from, Wyandotte Eistrict Court. Action by McGrew against Stewart, as county treasurer, to enjoin the collection of an assessment made on plaintiff’s land. January 30, 1890, there was a judgment sustaining the assessment, and plaintiff comes to this court. The opinion states the facts. 1.

<p>New Tkiai, — Motion, When to he Made. A motion for a new trial, upon the grounds that the judgment is not sustained by the evidence and is contrary to law, and for errors of law occurring at the trial and excepted to by the party complaining at the time, must be made at the term the judgment is rendered. If the motion for a new trial, for such reasons, is not presented or filed until after the term has ended and the court has finally adjourned, the supreme court cannot consider or review the errors alleged in the motion.</p>

Error from Barber District Oowrt. Action by William H. Sparks against Thomas L. Sparks, to recover money alleged to be due under certain contracts entered into by defendant with plaintiff’s assignor. Judgment for defendant. The plaintiff comes here. The opinion states the facts. The court erred in overruling the motion to quash the deposition of Daniel E. Wray. The notice to take said deposition did not specify the action or proceeding in which the deposition was to be used.

JEh'ror from Butler District Court. On the 25th day of June, 1888, Henry Moyle brought his action before a justice of the peace against the Western Union Telegraph Company and the St. Louis & San Francisco Railway Company, alleging therein that he was the owner of lot No. 27, in block No. 25, at Augusta, in this state; that the defendants, in the construction and operation of their telegraph lines, in 1882 fastened wires to the building on the lot described, without the…

Error from Sumner District Court. Action by Shaffer and wife against Matlaeh, to set aside a conveyance obtained from plaintiffs by fraudulent representations. June 18, 1889, judgment for plaintiffs. Defendant comes to this court. The opinion states the facts. It seems to us that this case hinges upon the matter of Matlack’s tax title, because that is the only representation which the Shaffers prove. And that representation was true.

<p> Error from Butler District Court. </p> <p>Action between Westbrook and Schmaus to quiet title. From the judgment, on October 5, 1889, Westbrook comes to this court.</p>

Error from Bice District Court. On the 15th of March, 1889, the First National Bank of Emporia brought an action, in the district court of Lyon county, in this state, against the Geneseo Town Company and IT.

Error from Atchison District Court. Action by plaintiffs to cancel and set aside certain conveyances the execution of which was alleged to have been obtained through fraud and deceit practiced upon plaintiffs. At a trial without a jury, the following conclusions of fact and of law were made and returned. “CONCLUSIONS OP PACT. “1.

Error from Eineoln Distriot Court. Ejectment. Judgment for plaintiffs, Lyden and another, at the October term, 1889. The defendant, Hazel, brings the case here. The facts are stated in the opinion.

Action by The State, on the relation of the county attorney of Barber county, against the board of commissioners, to enjoin defendant from issuing county scrip in payment of certain bridges. D. L. Pierce, chairman of the board, was found guilty of contempt of court in issuing the scrip in violation of the injunction proceedings, and appeals.

The facts sufficiently appear in The State, ex rel., v. Pierce, ante, p. 241, and in the opinion herein, filed at the session of the court in June, 1893.

<p>Common Cabbiebs — Recovery of Overcharges — Damages. The act concerning railroads and other common carriers, of 1883, giving a full and ample remedy to the shipper for the recovery back for any excess of overcharges received by the common carrier beyond reasonable compensation, is a substitute for the remedy provided in such case at common law. The statute not only permits the shipper to recover the excess of overcharges exacted by the common carrier, but allows three times the excess, or treble damages, with attorney’s fee and costs. (Laws of 1883, ch. 124; Gen. Stat. of 1889, ¶¶1333,1334, 1342.)</p>

Error from, Douglas District Court. Proceedings by Watkins against The National Bank of Lawrence and others, to appoint a receiver and close up its-affairs. At the February term, 1890, the district court refused to appoint a receiver, and plaintiff comes to this court. The opinion states the facts.

Error from Shawnee District Court Action brought by Charles P. Kellogg & Co. against W. C. Jones and T. W. Thompson, to recover damages for… Held: that under our Kansas statute different instruments made by the debtor to his several creditors, though made at the same time and covering all his property, do not together constitute a general assignment for the benefit of creditors, and do not come within the statute governing voluntary assignments for the benefit of creditors.

Error from Bourbon District Court. The opinion states the nature of the action and the material facts. Judgment for the plaintiffs, Fortney and another, at the October term, 1889. The defendant Company comes to this court. 1. Under the pleadings in this case, the operating company only is liable.

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

<p>Intoxicating Liquob — Illegal Sales by Agent. Where the bartenders in the employ of the owner or proprietor of a place of business, containing a cigar store in front and a “joint” in the back part, make sales of intoxicating liquors in violation of law, and the evidence proves that such sales were made with the knowledge or assent of the owner or proprietor, or by his direction and authority, such owner or proprietor is liable on account of the sales so made, the same as if made by him in person.</p>

<p> Original Proceeding in Quo Warranto. </p> <p>The facts are stated in the opinion herein, filed at the session of the court in May, 1893.</p>

Error from Swinner District Cow't. Action by Simmons against the County Board to recover compensation as county surveyor. Plaintiff had judgment, and defendant comes here. The facts appear in the opinion. The contention of the defendant in error is that he can keep his office open six days in each week, and charge the county therefor at the rate of $4 per day, being $24 per week.

Error from, Douglas District Court. On the 28th of March, 1888, Simpson Hollister, claiming to be the actual owner of the south half of the northwest quarter of section 19, township 12, range 20, in Douglas county, commenced his action against Valentine Jones and J. P. Usher, to recover the possession of the same. The defendants filed an answer, denying that Hollister was the owner of the premises.

Fh'ror from Ness District Court. Attachment by Dolan & Co. against Peters and others. On the order overruling their motion to discharge a prior attachment levied on the same property at the suit of Topping, plaintiffs bring error. 1. The pretended order of attachment issued in the action was never served by the sheriff, nor by a deputy sheriff, nor by any undersheriff of said county, nor by any other person legally authorized to serve said pretended order of attachment.

Prosecution for. rape. The opinion states the case. The verdict in this case is contrary to the evidence, and wholly unsupported by any evidence, either direct or circumstantial. The court erred in not sustaining the demurrer to the evidence, and in refusing to instruct the jury to find a verdict in favor of the defendant.

Error from Pottawatomie Eistrict Court. Action by Bradley and others against Craven and another to recover land. Judgment for plaintiffs, and defendants bring the case here. Held: that a mortgage given to secure payment of money borrowed to purchase land from the government is a mortgage for purchase money.

Error from Bourbon District Court. Action by Daniel Kulp and others against Myron Kulp and others to foreclose a mortgage. Defendants had judgment, on demurrer to the petition, and plaintiffs bring the case to this court. All the material facts are stated in the opinion. 1. A demurrer admits all the proper averments of the pleading attacked. 2. Absence of a debtor from the state stops the running of the statute of limitations.

Error from Saline District Court. Action on a promissory note by McDaniel against Mark-land and others. Plaintiff had judgment on demurrer to the petition, and defendants bring the case to this court. The opinion states the facts. If the petition is construed as an attempt to hold the defendants as guarantors, it is contradicted by the copy of the indorsement, and therefore bad pleading. Banking Co. v. Riley Co. Bank, 30 Kas. 163.

Error from Barton District Court. Action by Nairn against Ewalt and another, to cancel a conveyance of real estate, on the ground of fraud. Judgment for defendants, and plaintiff comes to this court. The opinion states the facts. The defendant in error objected to the introduction of evidence under the amended petition, which the court sustained, and of this ruling plaintiff in error complains.

E'ror from Edwards District Court. Action on a certificate of deposit by Brown against the Bank. The defendant bad judgment, and the plaintiff comes here. The opinion states the facts.

Error from Butler District Court. Action by the Harrison National Bank, of Cadiz, Ohio, against the Douglass Sugar Company. Plaintiff had judgment, and, from an order denying its motion for execution against J. M. Votaw and others as stockholders of defendant corporation, plaintiff brings error. The material facts are stated in the opinion.

Error from, Saline District Court. This was an action brought by the Erich Company against the Western Star Milling Company for the conversion, in September and October, 1888, of 570 bushels of wheat, valued at $500, which the Frick Company claimed under a chattel mortgage dated the 9th of November, 1887, and executed to the Frick Company by Andrew Bachofer.

Error from, Wabaunsee District Oowrt. Action by Betty Lewis against the City, to recover damages for personal injuries. Judgment for plaintiff. The defendant comes here. The opinion states the facts.

Error from Osage District Court,. Action on a judgment by C. 8. Jones & Bro. against the Osage City Bank., Plaintiffs had judgment, and defendant brings the case here. The opinion states the facts.

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

Error from Graham District Court. Replevin by Coder against Stotts, as sheriff. Defendant had judgment, and plaintiff comes to this court. The facts appear in the opinion.

Error from Reno District Court. Thomas J. Anderson and W. L. Woodnutt brought their action against Mary E. and C. C. Chambers, to recover $388.50, with interest, from Mrs. Chambers, as a balance due upon the following written contract: “This agreement, made this 23d day of August, in the year 1887, between Thomas J. Anderson and W. L. Woodnutt, of the first part, and Mrs. M. E. Chambers, of Hutchinson, county of Reno, state of Kansas, of the second part, witnessed : That in…

Error from Sedgwich District Court. Action by the Fairmount Town Company against the Roch Island Lumber & Manufactu/ring Company for a specific performance of a contract for the sale of lots. Judgment for plaintiff. The defendant brings the case to this court. The material facts are stated in the opinion.

Error from, Jefferson District Court. Ejectment by Willard R. Douglas against John M. White and another. Plaintiff recovered a judgment, and defendant White comes here. The opinion states the facts.

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

Error from Osage District Court. Replevin by Worrall against Frankhouser, as receiver. Trial at the April term, 1889, a jury being waived, before Hon. Ellis Lewis, judge pro tern. Plaintiff had judgment. Defendant comes to this court. The facts sufficiently appear in the opinion.

Error from Soott District Court. Condemnation Proceedings by the Railroad Company against Mary 8. Parsons. Defendant appealed to the district court, where she had judgment for $3,585.71. The company brings the case here. The opinion states the facts. 1. The court erred in not confining the jury to a consideration of the real, actual cash market value of the property. Brown v. C. R. Rly. Co., 18 N. E. Rep. 284 — 286; J. &. 8. E. Rid.

Error from Sedgwick District Court. Action to enforce a mechanic’s lien. On the judgment entered determining the priority of the liens, the owner and the mortgagees bring the case- to this court. The petition of Bissantz & Matthews was an ordinary petition on an account, and a statement of a mechanic’s lien, aud prayed for a personal judgment against Mrs. Kellogg, and foreclosure of the lien.

Error from Sedgwick District Court. The opinion states the nature of the action and the material facts. Plaintiff Bartholomew had judgment, and defendant Rouse comes to this court.

Error from Leavenworth District Court. Action by Curtan and wife against the Railway Company, to recover damages for the permanent obstruction of certain alleys. Judgment for plaintiffs for $1,000. The defendant brings the case here. The opinion states the material facts. 1.

Error from Wilson District Court The nature of the action and the facts are fully stated in the opinion. Plaintiff Bailey had judgment, and defendant Mannen comes to this court. 1. An insolvent partnership cannot legally appropriate the firm property by mortgage to the payment of the antecedent debt of one of the members.

Error from Sedgwick District Court. On the 8th day of April, 1887, Joseph Corwin and W. B. Throckmorton commenced their action against the St. Louis & San Francisco Railway Company, alleging that they were the owners and in the quiet and peaceable possession of three certain lots in Hilton’s second addition to Wichita; that the railway company, without any right, threatened and was about to enter and take possession of the premises and dispossess the plaintiffs therefrom,…

Original Proceeding in Quo Warranto. This is an original proceeding in the nature of quo warranto, brought in the name of the state by the attorney general, questioning the… Held: that where the use is public, the legislature is the sole, judge of the necessity or expediency of exercising the power of eminent domain in the particular case; but it cannot evade the constitutional limitation of its power, or make a private use a public oue simply by enacting that it is such.

Error from Rice District Court. Action by Ostrander against Willard for conversion. Judgment for plaintiff. Defendant comes to this court. The facts fully appear in the opinion. The fifth count of the plaintiff’s petition fails to state a cause of action against Willard for breach of warranty, because it nowhere alleges that Weeks was agent with power to sell, or that, having power to sell, he was authorized to give a warranty.

Original Proceeding in Mandamus. An election was held in the city of Atchison for city officers on Tuesday, the 4th day of April, 1893. W. T. Bland and Marshall J. Cloyes were the candidates for the office of mayor.

<p> Original Proceeding in Habeas Corpus. </p> <p>The opinion herein, filed June 10, 1893, contains a sufficient statement of the facts.</p>

Error from Atchison District Court. Action by Hyatt against King to recover possession of certain land. Plaintiff had judgment, and defendant comes to this court. The material facts are stated in the opinion. It was error in the court below to allow the filing by plaintiff, under the circumstances of this case, of the instrument termed by him a “supplemental petition.” See Porter v. Wells, 6 Kas. 453; Smith v. Smith, 22 id. 699; Dan.

Error from Finney District Court. Action by Tallant against Carter and others to recover on two promissory notes, and to foreclose a mortgage. Plaintiff had judgment, and defendant Carter comes to this court. The facts are stated in the opinion.

Error from Lincoln District Court. Action on a contract by the Bridge Company against the Toionship of Salt Creek. Plaintiff had judgment, and the defendant comes to this court. The opinion states the facts. At the time that the contract was made for the issuance of the bonds and the purchase of the bridge for which this suit was brought, there was outstanding and unpaid $18,000 of the bonds of Salt Creek township.

<p>Cbiminal Case — Appeal—Defective Transcript. Upon an appeal to the supreme court, taken by the state or city from a judgment of the district court quashing an indiotment, information, or complaint, a full and complete transcript of all the proceedings in the district court is essential.</p>

Error from Barber District Qou/rt. ■ This was a replevin action, brought on the 17th day of April, 1889, by The Standard Implement Company against GeorgeW. Stevens, as sheriff, for the recovery of $1,800 worth of personal property, consisting of agricultural implements, buggies, etc., obtained by L. M. Spencer from the Standard Implement Company.

Error from Sedgwick Court of Common Pleas. Replevin by W. W. Hays, as sheriff, and Sullivan & Steinmetz, against The Citizens’ Bank, of Wichita, Kas., and another. At the January term, 1889, the defendants had judgment, and plaintiffs come to this court. The facts appear in the opinion.

Appeal from Chautauqua District Court. Information charging Huffman with unlawfully selling intoxicating liquors. From a judgment, June 16, 1892, quashing the information, The State appeals.

Error from Barber District Court. On the 15th day of April, 1889, the Parlin & Orendorff Company brought an action in replevin against the Standard Implement Company, L. M. Spencer, A. N. Spencer, and J. N. Eastwood, to recover possession of certain personal property, valued at $2,205.05. The property was recovered under the writ and delivered to that company. Issue was joined between the plaintiff and the defendant the Standard Implement Company.

Error from Butler District Court. Replevin by Taylor against Schram, as sheriff. At the October term, 1889, the plaintiff had judgment. The defendant comes to this court. The opinion states the facts.

Error from Gray District Court. On the 6th day of August, 1888, Mrs. Belle Barton commenced her action against the Cimarron Land Company to recover the sum of $5,000 upon the following written bond: “ Know all men by these presents, that the Cimarron Land Company, a corporation duly organized under the laws of the state of Kansas, acknowledges that the said Cimarron Land Company is indebted to Mrs. Belle Barton, of the town of Cimarron, Kas., in the sum of $5,000, the…

<p>1. Action to Quiet Title. In an action by an owner of land to quiet his title and for equitable relief other than that provided in $ 594 of the civil code, it is not necessary to allege or prove actual possession of the land by the plaintiff.</p> <p>2. Case for Equitable Relief. The averments of the petition herein examined, and it is held, that the plaintiff presents a case for equitable relief independent of that provided in civil code, $ 594.</p>

Original Proceeding in Mandamus. Application by The State, by its relator, John T. Little, attorney general, for a writ of mandate to compel L. L>. Lewelling, as governor, to appoint two persons as justices of the peace of that portion of the territory which was included in Hodgeman county prior to the passage of the act of 1887, by which the creation of Garfield county was attempted.

Error from Barber District Court. On April 15,1889, The Parlin & Orendorff Company commenced its action against one L. M. Spencer for a debt of $935.22, and caused an attachment to issue against his property.

<p>1. Juby Tbiab, Refused — IAens—Priority. Where the issues joined by the pleadings Would require the granting of a jury trial upon demand, but the parties state to the court at the time of demand that the only matters in issue in the case are the priorities of certain alleged liens, the refusal of a jury trial is not error.</p> <p>2. Mobtgages — ■Assignment — Unauthorized Release — Priority of IAen. Where an unsatisfied mortgage on real estate, which was duly recorded, had passed through the hands of several parties, and one of them, to whom a written assignment of the mortgage had been made, which was placed on record without acknowledgment, undertook to release the mortgage long after he had assigned it to another, and when the record did not affirmatively show that he had authority to release the same, and subsequently another mortgage was executed by the owners upon the same real estate and accepted by the mortgagee in the belief that the first mortgage had been released of record by the action stated, held, that the subsequent mortgage was second and inferior to the first unsatisfied mortgage attempted to be released in the manner heretofore stated.</p>

Error from Osborne District Court. This was an action brought by H. Hausner & Co. and A. McKeever against F. E. Leebrich. Hausner & Co. and Mc-Keever were creditors of Leebrick, doing business at Atchison. Leebrick did business at Alton, in Osborne county.

<p>Mandamus- — Dismissal of Action. While the relator in mandamus oannot, as a strict matter of right, dismiss the action after final submission, still the court will dismiss the proceeding when it is of importance and it is desirable that plaintiff’s case be fully presented.</p>

Error from Dickinson District Court. Action by the Union Investment Company against the Chicago, Kansas & Western Railroad Company, to enjoin defendant from constructing its road along a certain street, and for damages to plaintiff’s land fronting said street. On March 11, 1889, plaintiff had judgment for damages, and defendant comes to this court. The opinion states the material facts.

<p>Case, Followed. The case of C. K. <& W. Rid. Co. v. Investment Coante, p. 600, followed.</p>

Original Proceeding in Mandamus. The City of Potwin Place, a city of the third class, brings this action against the Topeka Railway Company to compel it to operate its line of street railway in the city of Potwin Place, which it acquired by purchase from the Topeka Rapid Transit Railway Company by deed dated April 5, 1892.

Error from Sumner District Court. Action by the County Board of Sumner county and another against the Atchison, Topeka & Santa Fé Railroad Company and others. Judgment for the plaintiff, at the September term, 1891. The defendants come to this court. The opinion states the nature of the action and the material facts. 1. The demurrer should have been sustained, upon the ground of a misjoinder of causes of action in plaintiff’s petition.

Error from Barber District Oowrt. On the 15th of April, 1889, The Parlin & Orendorff Company commenced its action against L. M. Spencer to recover $2,255.08 upon an account for goods, wares and merchandise sold and delivered. An order of attachment was issued and levied on April 15, 1889, at 9:25 o’clock A. M. Prior to the levy, L. M. Spencer had executed two mortgages to the Standard Implement Company upon the stock of goods upon which the levy was made.

<p> Error from Brown District Court. </p> <p>This action was brought by The Kansas Mutual Life Association against O. C. Hill, as treasurer of Brown county, and another, to enjoin the collection of certain taxes. Special findings of fact and conclusions of law were made by the court, as follows:</p> <p>“findings of fact.</p> <p>“ 1. The plaintiff is a corporation organized and doing business under the laws of the state of Kansas.</p> <p>“2. It filed its charter in the office of the secretary of state of the state of Kansas on January 16, 1882, and organized as a mutual life association on the assessment plan.</p> <p>“3. It so continued to do business until January 1, 1886, when its plan of assessments was changed to quarterly payment in advance of premiums, based upon the American experience tables of mortality, without filing a new charter or otherwise changing its plan of organization.</p> <p>“4. O. C. Hill, at the time of the commencement of this suit, was the duly-elected, qualified and acting treasurer, and John F. Cashman was at said time, and now is, the duly-elected, qualified and acting sheriff of Brown county, Kansas.</p> <p>“5. J. K. Klinefelter was the duly-appointed and acting assessor of the city of Hiawatha, Brown county, Kansas, for the year 1889.</p> <p>“6. On the 11th day of March, 1889, John E. Moon, secretary of said corporation, made out, verified, and delivered to said assessor, a statement of personal property belonging to said corporation March 1, 1889, and subject to taxation for said year, of the aggregate value of $1,000, and returned the same to the county clerk, and said secretary refused to list any other property.</p> <p>“7. On the 30th day of April, 1889, the said J. K. Klinefelter, assessor for the city of Hiawatha, without notice to any of the officers or agents of said corporation, made another and different statement and returned the same to the county clerk, containing, in addition to the $1,000, the following:</p> <p>Assets.........................................$84,750 00</p> <p>Less reserve fund.........$29,590 00</p> <p>Less other personal property........................ 2,000 00— 31,590 00</p> <p>One-half................................... 53,160 00 —$26,580 00</p> <p>$27,580 00</p> <p>and that the county clerk extended the taxes on this statement.</p> <p>“8. Said corporation owned and possessed the following personal property, on the 1st day of March, 1889, and subject to taxation for the year, to wit: . ,</p> <p>Real-estate securities.........................................$17,267 00</p> <p>Cash in hand and deposited in bank...................... 25,294 21</p> <p>Furniture, blank books, etc................................ 2,000 00</p> <p>Total.........................................................$44,561 21</p> <p>which said cash and securities were derived by setting aside 20 .per cent, from each assessment as a guaranty fund, in accordance with § 10 of the law governing mutual life insurance companies, and did not exceed 1 per cent, of the insurance in force.</p> <p>“9. Said property was assessed at one-half of its cash value, to wit, $22,280.60.</p> <p>“10. The rate of taxation for all purposes in the city of Hiawatha for the year 1889 was 45-J mills.</p> <p>“11. The plaintiff tendered to the defendant O. C. Hill, county treasurer, on December 20, 1889, $50, in full of all faxes due from said corporation for all purposes for the year 1889, which tender has been kept good by the deposit of said amount with the clerk of this court.</p> <p>“12. There was due, December 20, 1890, from the plaintiff, as taxes for the year 1889, the sum of $1,008.19-320-.”</p> <p>“conclusions of law.</p> <p>“1. The property added by the assessor to the statement being subject to taxation, injunction will not lie to restrain the collection of the taxes on account of the irregularity of the assessor in making the assessment.</p> <p>“2. The injunction should be modified and discharged as to the $1,008.19-3^- taxes actually due, and made perpetual as to all over that amount.”</p> <p>To these findings and conclusions plaintiff excepted, and also requested the court to 'further find as to the amount of outstanding policies of insurance, the amount of reserve, and present value of each policy, and whether it would exceed in amount a sum that might be purchased at the age of 30 years on the continuous-payment life-rate, American mortality, 4-|-per cent., net premium $500. This request was refused by the court, and judgment entered in accordance with the special findings.</p> <p>The testimony of John E. Moon, secretary of the company, shows the assets of the company on the 1st of March, the date as of which the assessment was made, to have been as follows:</p> <p>Cash in office and treasury. ....'.. $25,291 31</p> <p>Mortgage loans................. ...... 47,697 00</p> <p>Premium notes................ ....... 2,694 03</p> <p>Furniture........................ ...... 1,190 19</p> <p>Due from agents and others. ...... 438 69</p> <p>Books, blanks, etc., about... $800 or 900 00</p> <p>Of the securities held by the company, there were deposited in the state treasury $30,430, of which $28,735.18 belonged to what is termed the natural-premium fund, and the balance, of $1,694.87, belonged to the assessment policies. There were outstanding 239 assessment policies, amounting to $633,000, and 2,795 natural-premium policies, amounting to $5,767,000. It appears, also, that the company owed $10,-000 on unpaid death losses. The corporation had no capital stock, and all its assets were derived from setting apart a portion of the premiums and assessments collected, and interest on investments.</p> <p>Judgment according to the foregoing findings. The plaintiff brings the case to this court.</p> <p>Shortly after March 1, 1889, plaintiff in error, by its secretary, made out, verified and delivered to the proper assessor a statement of all its property subject to taxation, which property was then assessed at the value of $1,000, and which was all of the property of which said company was the owner, and all that was subject to taxation for the year 1889. Plaintiff did not refuse to make out and deliver to the assessor a statement of its property; but said assessor, not regarding his duties, without notice to the plaintiff, made out another statement, assessing other and different property to the plaintiff, amounting to the sum of $26,580, in addition to the sum of $1,000 above mentioned, which amount of $27,580 was by the county clerk extended upon the tax rolls of said county. The tax levy for all purposes upon said valuation of $1,000 was $45.25, full tender of which was duly made to the treasurer. The tax levy extended upon said assessment of $27,-580, as extended upon the tax roll of 1889, was $1,247.99.</p> <p>The assessor has the power to increase or diminish the value of property listed; to make out a list of property if the owner refuses to make a statement or to be sworn thereto; and to return the statements received from persons to the county clerk; but in case of differences as to what property should be returned, or the correction of false statements, the assessor has no authority. It is left to the county clerk or commissioners to correct such returns, upon due notice. Goal Co. v. Bmlen, 44 Kas. 117, 120.</p> <p>The question presented is whether the funds found and proved to have been held by the company were exempt from taxation. The plaintiff company, though incorporated on the “assessment plan” under the statute, issued policies of that form until January, 1886, when it began to issue policies on the natural-premium plan, for cash payments. Its liability for taxation was determined by the business in which engaged. Mu. Benev. Life Co. v. Marye, 8 S. E, Rep. (Va.) 481. And as to assessment-plan policies and assets, the exemption from taxation was fixed by the law applying to such companies; and as to natural-premium policies, and assets to meet the same, by the law applying to such policies.</p> <p>The item, $1,694.87, securities in the hands of the state treasurer, was a guaranty or reserve fund, and was the sole property of the policy holders, and could only be paid out for payment of claims under certificates or policies. Insurance Law, §§132, 133; Gen. Stat. of 1889, ¶¶ 3459, 3461. It was, therefore, the property of the policy holders or beneficiaries only, and not the property of the company; but if the property of the company, it was a fixed indebtedness, to be deducted from assets, under §6, tax law. The item, $1,-674.39, cash in hands of company treasurer, was held for the same purpose. The small number of such policies made it necessary to increase the amount of guaranty or reserve fund. It was collected for that purpose, and, under the condition of the policy, held for that purpose under the law cited, and could be used for no other purpose. All of such fund, securities and cash, was properly held for a reserve fund for the purpose stated. It was the fund of the policy holders, due to them, and not the fund or property of the corporation. It could make no claim to it until the policies were first discharged. It was a debt which the policy holders could have recovered. Life (fee. 8oo. v. Welch, 26 Kas. 632.</p> <p>It further appears from the testimony that the present worth of such policies, on the computation stated in the insurance law, (§77, ¶ 3401, Gen. Stat. of 1889,) was over $85,000, and the whole thereof was, under such section, exémpt from taxation. The spirit of such law is to make such funds the property of the policy holders and beneficiaries, and not the fund of the company, and. also to exempt the same from taxation.</p> <p>“ The premium reserve fund of an insurance company is the amount set apart by the company for the payment of losses occurring from the deaths of its policy holders. . . .</p> <p>Under a statute which declares that ‘the indebtedness of the taxpayer shall be deducted, and the excess only taxed/ the premium reserve fund of an insurance company is exempt from taxation.” Insurance Co. v. Lott, 54 Ala. 499; same case, 5 Ins. L. J. 897. See, also, Equitable Life Ins. Co. v. Board of Equalization, 37 N. W. Rep. (Iowa) 141; Ilawkeye Ins. Co. v. Board of Equalization, 37 id. 966; People v. Ferguson, 38 N. Y. 89.</p> <p>1. It is claimed that the assessment was irregular and void. The county clerk used the statement signed by the assessor in making up the tax roll. The assessor followed the substantial requirements of ¶¶6907 and 6911, Gen. Stat. of 1889. Ryan v. Comm’rs of Leavenworth Co., 30 Kas. 185. No notice of the listing the additional property was necessary, under the authority of the case just cited.</p> <p>Paragraph 6918, and 44 Kas. 117, cited by plaintiff in error, refer to the proceedings of the county commissioners or county clerk after the assessor has made his returns to the county clerk, and cannot have any application to the facts in this case, for the reason that no change was ever made or attempted to be made by the clerk or board of county commissioners of the amount of property assessed against the insurance company.</p> <p>This court has uniformly held, that where the property assessed is subject to taxation, and the taxes are not illegal, an injunction will not be granted to restrain the collection of the taxes, upon the ground that the assessment was irregularly made. Ryan v. Comm’rs of Leavenworth Co., 30 Kas. 185; K. P. Rly. Co. v. Russell, 8 id. 558; Adams v. Beman, 10 id. 37; Parker v. Challiss, 9 id. 155; Smith'v. Comm’rs of Leavenworth Co., 9 id. 296.</p> <p>2. Plaintiff in error claims it is exempt from taxation under ¶ 3401, Gen. Stat. of 1889. This position certainly cannot be maintained.</p> <p>Plaintiff in error was a life insurance company organized on the cooperative plan, and was specifically excluded from the operation of the act under which it claims exemption. Gen. Stat. of 1889, ¶ 3402; The State, ex rel., v. Bankers’ &o. Ass’n, 23 Kas. 499.</p> <p>There is not a single word in the testimony in this case showing that any of the policies of the company were issued for the benefit of women, minor children, or for aged and infirm persons, as would be necessary in order to bring it within ¶ 3401, Gen.‘Stat. of 1889. The exemption of property from taxation is not favored by law, and all property should bear its just burden. Every presumption is against the intent to exempt, and such intent must clearly and specifically appear. 1 Desty, Tax. p. 132.</p> <p>The property of this company could not be assessed against the policy holders, for the reason that the interest of the policy holder to the same was wholly contingent. If he ceased to pay, it became worthless. He could not surrender it and receive anything from the company. The policy had no present value. Brown v. Thomas, 37 Kas. 282.</p> <p>3. Under the definitions given by our statutes, (Gen. Stat. of 1889, ¶ 6847,) there is a clear distinction between money and credits. The sum of $25,294.31 cash in the hands of the treasurer of the company was not a “credit” as defined by the statute. It did not- lose its character as money by being deposited in the bank. It would have been improper to have deducted from this sum of $25,294.31, or from the sum $17,267 secured by lien on real estate, any of the debts of the company.® Lappm v. Comm’rs of Nemaha Co., 6 Kas. 403; Brown v. Thomas, 37 id. 282.</p> <p>Outside of the sum of $10,000, which plaintiff owed for accrued death losses, the company had no obligations which could be classed as debts owing in good faith, and which it would be proper to deduct from its credits in order to determine the amount of its taxable property.</p> <p>The courts have held that a “contingent liability to pay” is not a debt owing in good faith, and that the clause, “debts owing in good faith,” means a fixed liability to pay a sum certain due, or to become due at all events, and not a loss that has not happened and may never happen. Insurance Co. v. Capettar, 38 Ohio St. 560; Kenton Ins. Co. v. City of Covington, 5 S. W. Rep. 461; 37 Kas. 286; People v. Davenport, 91 N. Y. 574.</p> <p>A contingent liability of an insurance company to pay losses is not such an indebtedness as can be deducted from its credits or assets in listing its property for taxation. Insurance Co. v. City of Covington, 5 S. W. Rep. 461; People v. Davenport, 91 N. Y. 574.</p> <p>Plaintiff in error cites the case of Equitable Life Ins. Co. v. Board of Equalization, 37 N. W. Rep. 141, as authoritative. There is a distinction between that case and the one at bar. In the case cited, the policy holders had the right to surrender their policies and receive a part of the sum for which the life was insured, thereby giving the policy a fixed and definite value. In the present case, the policy holders, on March 1, 1889, had no such right.</p> <p>The accumulating reserve fund of a mutual life insurance company, to continue liable for its losses during its existence, is subject to taxation. 1 Desty, Tax., p. 373; Sun Mutual Life Ins. Co. v. New York, 8 N. Y. 241.</p>

On the 4th day of December, 1891, an information was filed in the district court of Marion county against Hugh O’Neil, charging him with the murder of Mary O’Neil, his wife.

<p>Oase-Made, Power to Settle and Sign. Where plaintiff in error fails to serve a case-made within the time allowed by the trial judge, such judge has no power thereafter to allow and settle it.</p>

Error from Graham District Court. Action between Lewis A. Dell and Malinda Bell and IL. A. Coffin. From the judgment entered the plaintiffs brought error. Defendant in error now moves to dismiss the cause.

<p>Motion for rehearing, allowed July 8, 1893.</p>

Original Proceeding in Quo Warranto. Petition filed in this court June 30, 1892. On July 6, 1892, the defendants, J. F. Shearman and G. A. Van Ness, each for himself, filed a demurrer to the petition herein, for . the causes following, to wit: “1. The court has no jurisdiction of the person of the defendant. “2. The court has no jurisdiction of the subject-matter of the action. “ 3. The plaintiff has not the legal capacity to sue. “4.

<p> Original Proceeding in Quo Warranto. </p> <p>The opinion herein, filed July 8, 1893, contains a sufficient statement of the facts.</p>

Error from Chautauqua District Court. On the 11th day of August, 1888, Joseph Lorie commenced his action in replevin against J. J. Adams, sheriff of Chautauqua county, to recover a stock of merchandise of the alleged value of $2,000. The case was tried on the 23d day of November, 1889, before the court, with a jury. The jury returned a verdict for Adams, the sheriff, and assessed the value of his interest at $741.55.

<p> Original Proceeding ini Habeas Corpus. </p> <p>The material facts are. stated iu the opinion herein, filed July 8, 1893.</p>

<p> Error from, Meade District Court. </p> <p>This case is stated in the opinion.</p>

Error from Norton District Court. Action by A. M. McKee against the Wm. B. Crimes Dry Goods Company and Barton Bros. Judgment, from which defendants bring error. The opinion states the facts. McKee’s mortgages are made void by § 9 of the mortgage act.

Error from Elk District Court. Action by Permelia Johnson against Elizabeth Eaton and others to recover on a promissory note. Judgment for the defendants at the February term, 1890. Plaintiff comes here. The opinion states the facts. A gift, to become effective, must be accompanied by either an actual or a constructive delivery. This the evidence wholly fails to establish.

Error from Cloud District Court. On the 3d day of December, 1887, J. I. Wyer commenced his action against Philomena LaRoeque and Frederick LaRoeque to recover the possession of lots 1 to 18 inclusive, in block 72, in the city of Concordia, Cloud county. The defendants answered, admitting possession, but denying Wyer’s title. Trial was had, and, in accordance with the statute, set aside, and then retried before Hon. L. J. Cbans, as judge pro tem.

Error from Osage District Court. Action by the Threshing Machine Company against Peterson and another, to recover on a promissory note. At the June term, 1889, there was rendered herein a judgment, on account of which plaintiff comes to this court. The facts appear in the opinion. 1. The court erred in permitting the defendants to prove an alteration of the note, under the verified general denial filed as their answer. See 1 Greenl.

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

Error from, Wyandotte District Court. The opinion states the facts. Judgment for the defendant Company at the June term, 1889. The plaintiffs, Aigler & Co.,, bring the case to this court. It was usual and customary at Kansas City and vicinity for real-estate agents to get their commissions out of the first money received on land sales made by them.- Defendant recognized that at least $300 was due plaintiffs as earned commissions when it was agreed to pay that sum.

Error from Elk Distriet Court. Action by Myers against Knabe, by his guardian and others, to foreclose a mortgage. At the October term, 1889, the defendants had judgment, and plaintiff comes to this court. The opinion states the facts. The bad faith or fraud of the plaintiff is shown alone by the unproved allegations of false representation of value by the vendor. This is not enough. 1 Wait, Act. & Def., p. 139. See, alse, Graffenstein v. Epstein, 23 Kas. 443.

Error from Elk District Court. This was an action on a policy of insurance issued by the defendant company on the 3d day of August, 1888, insuring plaintiff against loss by fire on a hotel building in Moline, for the sum of $1,200. The building was burned about the 29th of the following July.

Error from, Lyon District Court. On July 26, 1888, School District No. J¡,6, Lyon county, having previously prepared specifications for a schoolhouse it desired to have built, and having… Held: in Smith v. Beeler, 48 Kas. 672: “When there is no conflict between a special finding of the jury and the general verdict, it is not error for the court to enter judgment on the general verdict.” St. L. & S. F. Rly. Co. v. Ritz, 33 Kas. 404, 408; Simpson v. Gh'eeley, 8 id. 586.

Error from Wabaunsee Eistriot Court. Action by Steak against the Railway Company to rec iver damages. Judgment for plaintiff, October 10, 1889, for $288.50. The defendant comes here. The opinion states the facts. 1. The court erred in finding for the plaintiff below.

Original Proceeding in Mandamus. The nature of this action and the material facts are stated in the opinion herein, filed July 8, 1893.

Error from Ciarle District Court. Prior to March 1,1887, the lands involved in this controversy, which are all situated in Clark county, were a part of the Osage Indian diminished reserve lands, and are a part of the lands mentioned in the acts of congress of August 11,1876, and May 28, 1880, found in the first volume of the supplement to the United States Revised Statutes, pages 236 and 528 (1874-1881).

Error from Shawnee District Court. Action by Crawford against the City of Topeka and the street commissioner thereof. Held: that where the authorities of the city knew that a billboard was negligently and imperfectly constructed, insecure, and liable to be blown down, and was adjoining the sidewalk of a much-traveled street of a city, and was therefore in a dangerous and insecure condition, the city would be liable for injury to a passer-by.

Error from Norton District Court. On November 29, 1887, Bullene, Moore, Emery & Co. commenced this action against the German Fire Insurance Company and A. C. Lappin, as defendants, to recover $910, with interest, which they claimed as assignees of a policy of insurance issued by the insurance company to the defendant A. C. Lappin.

Error from Edwards District Court. On the 18th day of November, 1887, B. M. Winters executed and delivered to Eby, Dowdeu & Co. the following written instrument: “ Know all men by these presents, that, in consideration of $600, the receipt of which is hereby acknowledged, I do grant, sell, transfer and deliver unto Eby, Dowden & Co., their heirs and assigns, the following goods and chattels, viz.: All my right, title and interest in and to a certain one-story frame store…

At the October term, 1892, Neis Ellvin was convicted of selling intoxicating liquors unlawfully; and the court adjudged that he should be imprisoned 45 days in the county jail, and pay a fine of $250 and the costs of the case. He appealed. On March 26, 1893, the appellant died.

Original Proceeding m Mandamus. Action brought in this court for a peremptory writ oí mandamus to compel the defendant, as president of the board of education of the city of Topeka, to sign $85,000 of 4-per-cent. 20-year bonds about to be issued. They have been sold to the commissioners of the state school fund, on condition that the commissioners shall be satisfied of their legality.