Volume 52 — Kansas Reports

Original Proceeding in Quo Warranto. The petition of plaintiff alleges that the city of Arkansas City is a city of the second class, and as such is entitled to two… Held: in Ward v. Clark, 35 Kas. 315, that §48, chapter 110, of the General Statutes of 1868, providing for the election of justices of the peace at city elections, is constitutional. See Wright v. Noell, 16 Kas. 601. The fact that a contest is pending between Bonsall and Cline is no defense to this action.

Original Proceeding in Mandamus. ORIGINAL proceeding in mandamus, on application of Robert B. Kepley, as treasurer of tbe board of public works of the state of Kansas, to compel Van B. Prather, as auditor of the state of Kansas, to draw his warrant. The facts are sufficiently stated in the opinion herein, filed September 9, 1893.

Original Proceeding in Habeas Corpus. The material facts are stated in the opinion herein, filed September 9, 1893. In this case the court will not only inquire into the general jurisdiction of the condemning court as to person and subject-matter, but will determine whether that court has jurisdiction to render the particular judgment which it did render; in other words, whether there was a matter before the court upon which it could lawfully render judgment of contempt.

<p> Original Proceeding m Habeas Corpus. </p> <p>The opinion herein, filed October 7, 1893, contains a sufficient statement of the case.</p>

At the March term, 1893, Catherine Gibson was convicted of selling intoxicating liquors unlawfully. She appeals. The opinion states the case.

At the November term, 1892, Bill Dugan was convicted of maintaining a common nuisance. He appeals. The opinion states the facts. . The information is not duly verified. Paragraph 3936, General Statutes of 1889, defines an oath, and the information was attacked at the first opportunity. The State v. Blachnan, 32 Kas. 615; The State v. Gleason, 32 id. 245; The State v. Clark, 34 id. 289. See, also, The State v. Brooks, 33 Kas. 708; Jackson v. The State, 4 id. 150.

<p> Original Proceeding in Habeas Corpus. </p> <p>PETITION by Terrill for release from custody. The facts appear in the opinion, filed October 7, 1893.</p>

<p>Cokxrt — Adjournment by Cleric. The presence of the judge of the district court in and for Payne county, Oklahoma territory, on the first day of the November term, 1892, of that court was indispensable to the validity of the subsequent proceedings purporting to have been held in the November term of that court, and the clerk of the court had no authority, in the absence of the judge, to adourn the court to a future day, nor had the judge power, while in another county, to authorize the clerk of the court to exercise any judicial powers in opening and adjourning court.</p>

At the March term, 1893, Barbra Haist was indicted for violations of the prohibitory liquor law. On March 31, 1893, the defendant filed her plea in abatement, in which she claimed that her name is “Barbara” Haist, and not “Barbra” Haist, as spelled in the indictment. To this plea the plaintiff filed a demurrer, claiming that the indictment should not be quashed for the reason that the name “Barbara” is spelled “Barbra” in said indictment.

Error from Harper District Court. Action in replevin, by Sherburne against Strawn and others. At the January term, 1890, defendants had judgment, and plaintiff eomes to this court. The opinion states the facts.

<p>Error from Thomas District Court.</p> <p>On the 8th day of May, 1888, the board of county commissioners of Thomas county, state of Kansas, on the application of the Chicago, Kansas & Nebraska Railway Company, laid off and condemned a route and line for the railway company through the southeast quarter of section No. 33, in township No. 7, of range 34 west, in that county. The commissioners awarded the sum of $230 as the value of the land taken and the damage to the property not taken, from which John Ellis appealed. In the district court, the plaintiff filed a petition • consisting of two counts, in the first of which, among other things, it was alleged :</p> <p>“That the legal title to said tract of land was at the date of said appropriation and still is owned by Susan A. Ellis, the wife of this plaintiff; that her title was originally acquired by and through the plaintiff, who paid the consideration therefor, and was and is held in trust for the use and benefit of plaintiff, and under a valid agreement made at the time of such conveyance to her, that he should have the use and benefit of said land, and might occupy the same so long as he should live or should desire the same; that plaintiff’s interest in the land taken and the improvements thereon was at the date thereof $100, and that, by reason of the appropriation of his interest in the land, the remaining portion thereof was damaged and lessened in value in the sum of $300.”</p> <p>In the second count of said petition, it was alleged, among other things:</p> <p>“ That since the date of the appropriation of said land, as hereinbefore stated by the defendant, Susan A. Ellis, owner of the legal title to the land, has, for a valuable consideration, by an instrument in writing, duly executed, and a copy of which is annexed hereto, marked ‘ Exhibit A,’ sold, signed and transferred to this plaintiff all her claim and right to any and all damages against the defendant by reason of such appropriation and to the compensation due therefor, and all her right, title and interest in and to the award heretofore made as aforesaid by such county commissioners for the land so condemned'and appropriated by said defendant, and in and to all damage caused by such appropriation to-the remaining portion of said land, assessed as aforesaid, and in and to any award or damages that may be awarded or assessed therefor in this court or on any appeal that might be taken from the determination of said board of county commissioners,*- that the actual value of the land so taken, with the improvements thereon, was at the date thereof $200, and, by reason of such appropriation, the remaining portion of the land was damaged and lessened in value in the sum of $400.”</p> <p>The railway company, in its answer, denied all the allegations in each and every count of the petition, except the condemnation and appropriation of the right-of-way over the land and the award of the commissioners. Upon the trial, at the November term, 1889, before the court and a jury, judgment was rendered in favor of the plaintiff against the railway company for $452.21 and costs. The Railway Company brings the case here.</p> <p>The court erred in overruling the motion of defendant be • low to dismiss the appeal. The award of the board of county commissioners as to the value of the land appropriated and the damages to the property not appropriated was joint, and not several. The condemnation proceedings were in rem, and all persons who owned any interest in the land in question were affected thereby; and such persons were interested in the award to the extent of their interest in the land. The petition shows that the legal title to the land was in Susan A. Ellis, and that the defendant in error owned a life interest therein. Before the award could be vacated or set. aside, all persons who would be affected thereby should be made parties to the proceedings seeking the vacation. G. K. & W. Bid. Co. v. Grovier, 41 Kas. 685.</p> <p>It is well settled that before a judgment or award can be vacated all persons who would be affected thereby must be made parties to the proceedings seeking the vacation. Powell, App. Proc., p. 374; Hilliard, New Tr., p. 601, § 106; Ex parte Polster, 10 Kas. 204; Armstrong v. Durland, 11 id. 15; Hodgson v. Billson, 11 id. 357; Bassett v. Woodward, 13 id. 341; Biohardson v. MoKim, 20 id. 346; Thompson v. Manufacturing Go., 29 id. 480; Browne’s Appeal, 30 id. 331; Paper Go. v. Hentig, 31 id. 322; McPherson v. Storoh, 49 id. 313,</p> <p>See, also, G. B. I. & P. Bid. Go. v. Hurst, 30 Iowa, 74, 75; Bailroad Go. v. Anderson, 42 Kas. 297; Civil Code, §§ 26, 28; Scantlin v. Allison, 12 Kas. 85; Cassidy v. Woodward, 77 Iowa, 354.</p> <p>The authorities are all to the effect that the trustee is the proper party to maintain all actions affecting or relating to the trust property. Davis v. G. B. B. Bid. Co., 11 Cush. 506; The State v. Orange, 32 N. J. L. 49; The State v. E. & A. Bid. Go., 36 id. 181; People v. Bobinson, 29 Barb. 77; Small v. Bailway Go., 13 S. E. Rep. 694.</p> <p>The court erred in admitting certain evidence which was offered in support of the first count of the petition. Ordinarily, where one purchases land and pays for it and takes the title in the name of another, there arises by operation of law a resulting trust in favor of him whose money paid for it. Hill, Trustees, p. 146. See, also, 2 Pom. Eq. Jur., § 1039; Beavers v. McKinley, 50 Kas. 602; Maxwell v. Maxwell, 109 111. 588; Smith v. Smith, 33 N. E. Rep. 35.</p> <p>The alleged agreement and understanding as to plaintiff’s interest in the land was made by oral communications between the husband and wife. This evidence relates to a communication made during the marriage between the husband and' wife, neither of whom could testify concerning the same. Civil Code, § 323, subdiv. 3; L. N. & 8. Rly. Co. v. Usher, 42' Kas. 637; Chandler v. Dye, 37 id. 765; French v. Wade, 35-id. 391; Anderson v. Anderson, 9 id. 112.</p> <p>The motion of the railway company to dismiss the appeal was properly denied. A mere statement of the facts is a sufficient answer to the claim made by the counsel for the railway company, that John Ellis could not appeal from the award made by the commissioners. He had a right of appeal apart from any question as to the assignment to him of his wife’s interest in the damages caused by the appropriation. The petition alleged and the evidence proved sufficient facts-to show that he had a material interest in the award appealed from, prior to and apart from such assignment. Counsel for the plaintiff in error assume in their argument that the right to appeal in such cases is limited to the owner of the legal title. We do not understand this to be the law. The word “owner,” as used in the statutes relating to condemnation proceedings, is properly construed to include every person having any interest in the land condemned. Tenants or occupants of land condemned may have an award of the damages-sustained by them. See Comm’rs of Smith Co. v. Lahore, 37 Kas. 486, and other cases there cited. Possession alone is sufficient to maintain the proceeding. Mills, Em. Dom., § 440.</p> <p>The trust, as alleged and proven, was not an express trust,, but an implied or resulting trust. An express trust is only created and evidenced by some written instrument which sets forth the trust. See Ingham v. Burnell, 31 Kas. 336. There-was no attempt to allege or prove an express trust. There are no facts in this case to make it an exception to the general rule in this state, that the action must be prosecuted in the name of the real party in interest.</p> <p>The plaintiff did not allege or attempt to prove an express trust in the land, but only a resulting trust — one which arises by implication of law, where the conveyance is made to one person and the consideration is paid by another. Parol evidence is admissible to prove a resulting trust or one which may arise by implication of law. See Marsh v. Davis, 33 Kas. 326; Story, Eq. Jur., §§ 1206, 1207.</p> <p>The cases cited by counsel for the railway company as holding that a trust in lands cannot be proved by parol evidence are cases where the question arose between the grantor and grantee, the court holding that in such cases no implied or resulting trust could arise.</p> <p>Counsel for the railway company also now claim that this evidence should have been rejected by reason of § 323 of the code, which provides that a husband or wife is incompetent to testify as to communications made by one to the other during marriage. But counsel did not make any such objections upon the trial in the court below. The objection there made was that the evidence itself was incompetent.</p> <p>An objection to the introduction of testimony, to be available in this court for purposes of error, must distinctly and clearly state the point of objection, so that the court may see from the record that the very objection presented here was presented to the mind of the trial judge. See K. P. Ply. Co. v. Cutter, 19 Kas. 89; Joseph v. National Bank, 17 id. 260.</p> <p>• An objection to a question for incompetency does not raise any question as to the qualification of the witness, even where he is expressly disqualified by statute. Abbott v. Coleman, 22 Kas. 250;. AT. P. Ply. v. Pointer, 9 id. 627; Cornell v. Barnes, 26 Wis. 473, 480. Even if it was error to admit the evidence in question, it was immaterial, and in no way prejudicial to the railway company.</p>

INFORMATION against Kirkpatrick for selling intoxicating liquors unlawfully. From a judgment quashing the information The State appeals. The material facts appear in the opinion.

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

Appeal from Reno District Court. February 6, 1893, May was convicted of unlawfully selling intoxicating liquors. He appeals. The opinion states the facts.

Original Proceeding in Habeas Corpus. William C. STEVENS and Morris Stevens, while confined in the county jail, before conviction, charged with a criminal offense, broke jail and escaped therefrom. Milton Stevens, the defendant in this proceeding, is charged with having concealed them after their escape, knowing that they had broken jail.

Error from Rush District Court. Action by C. Aultman & Co. against Miller to recover on three promissory notes. At the January term, 1890, defendant had judgment, and the plaintiff company, a corporation, comes to this court. ' The opinion states the facts.

<p> Original Proceeding in Habeas Corpus. </p> <p>. The material facts are stated in the opinion herein, filed October 7, 1893.</p>

<p> Appeal from, Norton District Court. </p> <p>April 20, 1893, Moulton was convicted on several counts for selling intoxicating liquors unlawfully. He appeals. The opinion states the facts.</p>

Error from Clark District Court. Action by Tootle, Hosea & Co., against E. S. Miner. Plaintiff had judgment, and an order continuing the lien of an attachment previously issued. Joseph Cahn & Co., intervening, moved to set aside the attachment so far as the same appeared to be superior to an attachment in their favor against the same defendant. From a judgment sustaining the motion, at the January term, 1889, plaintiffs bring error.

The defendant and one Nathaniel Kidd were jointly charged by information in 16 counts with the crime of manslaughter in the first degree. A separate trial was demanded. The defendant was convicted on the thirteenth count, and sentenced to 15 years in the penitentiary. Afterward, and at the same term of court, Kidd was tried and acquitted.

<p> Original Proceeding in Mandamus. </p> <p>The opinion herein, filed October 7, 1893, contains a sufficient statement of the case.</p>

Error from Barber District Court. ACTION by Miller against McElwain. Judgment for defendant at the September term, 1889. The plaintiff comes here. The opinion states the facts. Instruction No. 4 is manifestly erroneous, because, if the note had been paid, and by reason of that the mortgage satisfied, that was a matter of defense, and must be proven, and the burden of proving it was upon the defendant.

Error from Wyandotte Court of Common Pleas. Action by the Board of Trade of Kansas City against Samuel P. Jones, the Argentine Board of Trade Association, and others, for an injunction. Trial before Hon. James M. Rees, judge pro tern. The court found for the plaintiff, and that the Argentine board of trade was not entitled to the relief asked for in its answer, and denied the injunction prayed for by the defendants. They come to this court. The opinion states the facts.

Error from Harper District Court. ACTION by Kirhpatriek against the Railroad Company to recover for his services as attorney. Judgment for plaintiff, at tbe January term, 1890. The defendant comes to this court. The facts appear in the opinion.

Error from Ellis District Court. ACTION by Woodward, Faxon & Co. against Howard and another. At the September term, 1889, the plaintiffs had judgment, and the defendant Howard comes to this court. The opinion states the facts. There was no competent evidence whatever introduced or heard that established a partnership between Dixon and Howard, and the court bases its judgment on the theory that they were partners, and in fact so finds.

<p>1. Cases, Followed. The oases of Asher v. Sutton, 31 Kas. 286, and National Bank v. Drake, 29 id. 311, followed.</p> <p>2. Reklevin — Demand—Refusal. Where a defense in a replevin action is founded upon title in a defendant, and the right of possession incident thereto, the failure of proof of the demand and refusal is not sufficient to justify a reversal of the judgment in favor of the plaintiff. (Raper v. Harrison, 37 Kas. 213; Schmidt v. Bender, 39 id. 437.)</p> <p>3. Receives — Collateral Attack. The appointment and the retention of a receiver oannot be collaterally attacked.</p> <p>4. Agistment — Enforcement of Dien — Conversion. A person claiming a lien for feeding horses or other live stock has the right of possession until the debt is paid, but he can do nothing else to enforce payment except in pursuance of the statute providing for the enforcement of such a lien. If such person makes a sale of the stock in his possession, without complying with the provisions of the statute for the enforcement of his lien, the owner of the stock may resume possession thereof, or bring an action for the conversion of the same. —</p>

Error from Jefferson District Court. REPLEVIN by McCarthy against Davis, as sheriff, May 21, 1889. The plaintiff had judgment and defendant comes here. The opinion states the facts.

Error from Bourbon District Cowrt. Action on a promissory note by Brook against Teague and another. Trial at the December term, 1889, before Hon. W. J. Bawden, judge pro tern., and a jury. Defendants had judgment, from which, and an order denying a new trial, plaintiff brings error. The material facts are set forth in the opinion.

Error from Ellis District Court. ACTION by Willis A. Myers against Anna Dreese for the foreclosure of a mortgage. Held: whether as a homestead or not, and, if it was, it is equally his duty to obtain the joint consent to the mortgagor. Thimes v. Stumpff, 33 Kas. 53.

<p>Review — Finding, When Conclusive. Where there is a fair conflict in the evidence, the finding of the trial court on a disputed question of fact is oouclusive.</p>

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

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

Error from, Johnson District Gourt. Action by the Southern Kansas Railway Company against the Board of County Commissioners of Johnson county to recover damages arising from the establishment and construction of a highway over its right-of-way and railroad track. Defendant had judgment, and plaintiff brings error.

Error from SedgwicJc Court of Common Pleas. Action to recover upon a promissory note for $1,700, executed by H. F. and J. A. Friend in favor of C. R. Miller, payment of which was guaranteed by W. R. Tucker and William Mathewson.

Error from Wyandotte Gourt of Common Pleas. This action was originally brought by Daniel Abbott, under § 253 of the code, against the Board of County Commissioners and others, to enjoin the collection of certain taxes levied by special assessments upon Abbott’s farm, under the provisions of chapter 214 of the Laws of 1887, entitled “An act providing for the improvement of county roads.” On March 16, 1891, this case was transferred from the district court of Wyandotte county…

JUNE 27, 1893, John Snodgrass was convicted of rape. He appeals. The opinion states the material facts. There was not a substantial compliance with the statutes in the selection of this jury, and the defendant in a criminal action has “the right to insist that there shall be a substantial compliance with the law.” And where there is a departure from the statutes in the selection of a jury, it is sufficient ground to quash the panel. The State v. Jenkins, 32 Kas. 479.

At the May term, 1892, George Garrison was convicted of burglary in the second degree and larceny. He appeals.

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

M'ror from Thomas District Court. ACTION by tbe Moline Plow Company against M. W. Witham, sheriff, and Eamsey & Eamsey, for the possession of goods sold by plaintiff to Ramsey & Ramsey under an agreement that the ownership should remain in the seller until paid for, and levied on by Witham at the instance of attaching creditors of Ramsey & Ramsey. At the March term, 1890, there was judgment for defendants, and plaintiff brings error.

At the May term, 1893, E. 8. Decker was convicted of unlawfully removing buildings from mortgaged property. He appeals. The opinion states the facts. The information is not sufficient under ¶ 3900, Gen. Stat. of 1889. Said paragraph provides for the punishment of an act of waste committed on the premises against which a valid and subsisting mortgage exists, unless the party removing any building, etc., shall have the written consent of the mortgagee, his agent or assign.

Error from, Wilson District Court. The opinion states the nature of the action and the material facts. Held: that the rule requiring the pawnee of commercial paper to sue is always subject to the special agreement of the parties. Hamilton, with the consent of the owner of the note, was authorized to sell the same, notwithstanding the existence of the general rule.

<p> Error from Morris District Court. </p> <p>Action by Moriarty & Waller against the Board of County Commissioners of Morris county to recover for printing done for defendant. At the April term, 1890, there was judgment for defendant, and plaintiffs bring error.</p>

Error from Harper District Court. Action by W. R. Kirkpatrick against the St. Louis & San Francisco Railway Company. At the January term, 1890, plaintiff had judgment, and from an order granting him leave to enforce the same, notwithstanding the filing of a bond to stay execution, defendant brings error.

Error from Saline Distriet Court. This action was brought in the Saline county district court, by H. F. Crippen against F. M. Sohnee and Sadie Schnee, his wife, and John Horton, to enforce specific performance of a certain agreement in writing, in words and figures as follows: “ Memoranda of agreement made this 26th day of October, A. D. 1885, by and between F. M. Schnee and H. F. Crip-pen, witnesseth: Whereas, certain differences, litigations and complications exist between…

Error from Ness District Court. ACTION of replevin by Bice against Rogers, as sheriff. Judgment for defendant at the September term, 1889. Plaintiff comes to this court. The opinion states the facts. In cases of fraud, the burden of proof is always on the party alleging fraud; so in this case the burden of proof was on the defendant, to show that the chattel mortgage in question was executed for the purposes alleged in his answer. Angelí v. Pickard, 28 N. W. Rep.

<p>1. Chattel Mobtgage, When not Fraudulent. It is not a fraud on other creditors fox one haying a valid claim to obtain security for the amount actually due by chattel mortgage, where no more property is covered than is necessary to secure the debt.</p> <p>2. Bank, Protecting its Own Interest. A bank having a claim against an insolvent firm, which is consulted by a firm of other creditors with reference to collecting and securing their claim, is not legally bound to disclose the existence of its claim to such firm, but may keep silent and proteot its own interest, provided it is guilty of no fraudulent conduct, and does nothing more than is necessary to its own protection.</p>

Error from Saline District Court. ON the 12th of March, 1889, by a nunc pro tunc order, J. M. Itten recovered a judgment upon a verdict rendered in his favor in the court below on the 11th day of December, 1886, against Charles Hegelund, Magnus Buck, August Palmlief, W. E. King, and Walter Younger, defendants. The amount was for $760 debt, and $217.25 costs. No rate of interest was specified.

Error from Sedgwick Common Pleas Court. Action by Mary M. Wright against the Wichita & Valley Center Motor Bailroad and Land Company and others. At the May term, 1889, there was judgment for plaintiff, and defendants bring error. The opinion states the facts.

Error from Harvey District Court. This action was brought by plaintiff’s intestate, Hiram Constant, who died after the trial of the case in the district court, and the cause was thereafter revived and prosecuted in the name of tbe administratrix. The petition charges the defendants with having induced him and other persons, who resided at Hutchinson, to enter into a joint purchase of two 40-acre tracts of land in the vicinity of Newton by fraud.

Error from Wilson District Court. ACTION by Renfro against the Railway Company to recover damages to his premises caused by surface water. Judgment for the plaintiff at the September term, 1889. The defendant Company brings the case to this court. The material facts are stated in the opinion.

Error from, Eickinson District Court. Action by John Ii. Mahan and another against J. B. Ehv-sam for services as attorneys. At the February term, 1890, plaintiffs had judgment and defendant brings error. The opinion states the facts.

<p>1. Supreme Couet — Appeal—Limit. No appeal or proceeding in error can be bad or taken to the supreme court, in any civil action, unless the amount or value in controversy, exclusive of costs, exceeds $100, except in certain cases specified in the statute. (Civil Code, § 542a; Laws of 1889, ch. 245, \ 1.)</p> <p>2. Amount of Judgment — No Jurisdiction. Where the damages claimed in a civil action by the plaintiff exceed $100, but the judgment is for the plaintiff for $100 only, exclusive of costs, and the defendant prosecutes a proceeding in error, the supreme court has not jurisdiction, for the amount or value in controversy, as to such defendant, is fixed by the judgment.</p>

Error from Coffey District Court. This action was brought on a recognizance given in the case of The State of Kansas v. Thomas Jackson, which reads as follows: “Whekeas, Upon good cause shown, the above-entitled action was, on the 19th day of April, 1888, continued for judgment and sentence of the court against said defendant, unto the next term of the above-named court: Now, we, the undersigned residents of said county and state, bind ourselves to the state of Kansas, in…

Error from Jewell Eistriet Court. The Snodgrass & Young Manufacturing Company commenced its action on January 4; 1889, against the board of county commissioners of the county of Jewell, J. J. Sheehan and E. E. Jacobs, partners as Sheehan & Jacobs, and Joseph Bromieh, alleging that Sheehan & Jacobs, under a contract with the board of county commissioners of Jewell county, made the 1st day of December, 1887, agreed to construct and place in the courthouse, at Mankato, Jewell…

Error from Butler District Court. EepleviN by Maiden against Schram, as sheriff, and Throop, as deputy sheriff. At the March term, 1890, the plaintiff had judgment, and defendants come to this court. The facts appear in the opinion. Whether the plaintiff was entitled to a recovery under the landlord’s lien, or under the chattel mortgage, or not at all, was a question of fact, and, being such, it should have been submitted to the jury.

Error from Dickinson District Court. Clifford E. Pontius was employed by the defendant company as a bridge carpenter, and worked in that capacity at various points on the line of defendant’s road. A bridge was constructed across the Verdigris river, in Greenwood county.

Error from Atohison Eistriet Court. ON the 11th day of May, 1887, Kate Kohn brought her action against Kate K. Barr, E. W. Sargent and Samuel E. Bal-lenger to recover possession of 80 acres of land… Held: that he acquired no title to such entry which rendered the land subject to taxation. Reynolds v. Plymouth Co., 55 Iowa, 90; Bronson v. Keokuk, 3 Dill. 490; Calder v. Keegan, 30 Wis. 126; Donovan v. Kloke, 6 Neb. 124.

ffl'ror from Wabaunsee District Court. ACTION by Moses Lewis against the City of Eskridge for injuries from a defective sidewalk. Judgment for plaintiff, on February 14,1890, Hon. George G. Cornell, judge pro ■tem., presiding. Defendant brings error.

<p>Appeaií — Service of Case — Dismissal. Where the only thing in the record to show service of the “case” on defendant in error is an indorsement thereon that “the foregoing is O. K.,” signed by his attorney, and dated after the expiration of the time given by the court in which to make the case, the oase will be dismissed.</p>

Error from Coffey District Court. Frederick Hildebrand, who was plaintiff below, while crossing the tracks of the Missouri 'Pacific Railway Company on F street, in Le Boy, received injuries, for which he brings this suit. F street runs north and south; the railroad tracks nearly east and west. The south track is called the “ house track,” and runs on the south side of the depot, which is located two blocks west of the crossing and of the water tank and coal chutes.

Error from, Lyon District Court. Action on a promissory note, and to foreclose a mortgage given to secure its payment. Judgment for plaintiff, Myers, at the December term, 1889. Hutchison, one of the defendants, brings the case here. The opinion states the material facts. .

Error from, Wyandotte District Court. This action was brought by the defendant in error, as plaintiff below, against the city of Kansas City and the Orchard Place Land Company, to recover for damages to plaintiff’s buildings, occasioned by an overflow of the waters of Splitlog creek. Splitlog creek is crossed by Tenney avenue. The grade line of said avenue, as established by the city authorities, ran about 35 feet above the channel of Splitlog creek.

Error from Ellsworth District Court. August 11, 1888, Jeremiah Geary, who was and had been in the employ for many years as a track repairer or section hand, was killed by being run over by a train of cars of the Union Pacific Eailway Company. He left a widow and five children. Geary, at the time of his death, was 39 years old, a healthy man, sober and industrious, and, as such track repairer, was earning $1.25 per day, with which he supported his family.

Error from Dickinson District Court. ACTION by Cowperthwait against the City of Abilene, to recover damages for bodily injuries. Judgment for the plaintiff, at the May term, 1889. The defendant City brings the case to this court. All the material facts are stated in the opinion, filed November 11, 1893. The undisputed facts to which the court’s attention is called are: First, that the officers of the city had no actual notice of any defect in the sidewalk at this place.

Original Proceeding in Mandamus. ON the 5th day of October, 1893, there was filed in the office of the secretary of state a petition, signed by the plaintiff and 24 other qualified voters of the thirty-fifth judicial district of this state, nominating William Thomson as the candidate of the “miners and laboring men’s party” for judge of said district, to be voted for at the ensuing election.

ON the 18th day of March, 1893, George W. Scott, county attorney of Cowley county, filed an information in the clerk’s office of the… Held: and then and there did fe-loniously, willfully, deliberately, premeditatedly, and of their malice aforethought, discharge and shoot off) to, against and upon him, the said Peter Hinton; and that he, the said A. W. Patterson and William T. Standeford, with a certain leaden bullet aforesaid, out of the pistol aforesaid, by force of the…

Error from, Russell District Court. ■ The opinion states the case. Plaintiff in error contends that the legal effect of giving the chattel mortgage on the machine purchased and other personal property to secure the payment of the note was to change the title in the machine from the plaintiff in error to Lewis. The mortgage was accepted by the company and duly recorded. See MoRea v. Merrifield, 48 Ark. 160.

Ervor from Norton District Court. Action by Curran against Doom and others. September 14,1889, the plaintiffs had judgment. Defendants Doom and Bertram bring the case here. The opinion states the facts.

Error from Olay District Court. ACTION by the City of Clay Center against D. H. Myers, as assignee of John Higinbotham, insolvent, to recover the amount deposited with said insolvent in trust. At the June term, 1892, judgment was rendered for defendant, and plaintiff comes to this court.

<p>1. Oieouit Ootjbt — Contempt—Power to Punish. The judge of the circuit court of Shawnee county has power to punish by imprisonment a person guilty of contempt in disobeying a lawful order duly made by such court.</p> <p>2. JrmisDicTiON, Not Lost. Where, on trial of an action pending in such circuit court, it was found and adjudged that the defendant had in his possession property of the plaintiff, which he had obtained by</p> <p>^ fraud, and he was thereupon adjudged to restore such property to the plaintiff, and to pay the full value thereof .if not restored, and the defendant was ordered to appear at a subsequent day in said term, and produce suoh property and deliver it to the plaintiff, and was required to account at suoh time with reference to such property, and where the defendant refused to comply with the order of the court by producing the property, and, after a further continuance, was found guilty of willful contempt of the order of the court, such circuit court still had jurisdiction over the case, for the purpose of punishing the defendant for his contempt.</p>

Error from Dickinson District Court. Action by Stevens against Clemmons, to recover on three promissory notes. Judgment for defendant at the May term, 1889. The plaintiff comes here. The opinion states the facts.

Error from Finney Distriet Court. This was an action, on the 20th day of December, 1888, by the Norwegian Plow Company, upon a promissory note, for $325, due 30 days after date, executed by John J. Munger and Charles S. Desky to one J. J. Johnson, and by him indorsed to the Norwegian Plow Company.

Error from Butler District Court. ACTION by Webb against the Coumty Board of Butler county and others, for an injunction. At the June term, 1890, the defendants had judgment, on demurrer to plaintiff’s evidence. Plaintiff comes here. The opinion states the facts.

<p> Error from Pottawatomie District Court. </p> <p>Action by L. L. Van Brunt for a divorce. At the September term, 1889, there was a judgment for defendant, and plaintiff comes to this court. The opinion states the facts.</p>

Error from Shawnee District Cov/rt. Action by L. W. Lawrence & Go. against D. W. Davis, to recover commission for the sale of certain real estate. Judgment for plaintiffs, May 15, 1889. Defendant comes to this court. The facts appear in the opinion. In a contract between a real-estate agent and his 'principal, there must be mutuality.

Error from Wilson District Gourt. ACTION by Bartlett, as administrator of the estate of John Brown, deceased, against Allen, as administrator of the estate of Henry Brown, deceased. Plaintiff had judgment at the February term, 1890, and defendant brings error. The facts appear in the opinion.

Error from Sedgwick District Court. Action for partition between Helen H. Carlton, Lillie P. Burleigh, and others. Helen H. Carlton complains of the judgment rendered at the May term, 1890, and comes to this court.

Error from Cloud Distriet Court. ACTION to recover double the amount of the illegal interest paid upon a loan made by the Bank. The cause was submitted to the court without a jury, and upon the evidence adduced the following findings of fact were made: “1. That the defendant is a corporation organized as a national bank under the laws of the United States. “2.

Error from Butler District Cowrt. ACTION by Claris and others against the Railway Company to recover for loss of merchandise. Judgment for plaintiffs, July 16, 1889. The defendant brings the case to this court. The facts are stated in the opinion.

Error from Wyandotte District Court. AotioN by Teedriok against the City of Kansas City and others for an injunction. Judgment for defendants. The plaintiff comes to this court. The opinion states the facts.

Error from Barton District Court. Action by Frances M. Winterburg against Edward F. Winterburg for a divorce. March 26, 1890, plaintiff had judgment, and defendant brings error. The opinion states the facts. The court erred in admitting evidence tending to prove acts of cruelty not set out in the petition. The plaintiff, in her petition, set out certain acts of cruelty, but on the trial attempted to prove others.

<p>1. Mechanic's Lien — Time of Filing Statement. Parties furnishing materials for the erection of a building, in order to maintain a lien therefor, must file the statement required by the statute within four months after the completion of the building.'</p> <p>2. - Computation of Time. Where work on the building is abandoned by the owners, the statement must be filed within four months after the abandonment. The -time when such abandonment occurs • is to be determined from the aotual cessation of the work, and not from the seoret purposes or mental conclusions of the owners.</p> <p>3. Pbaotioe — -Demurrer to Evidence. The practice of entertaining demurrers to the evidence in oases tried by the court without a jury is authorized by the spirit, if not by the letter, of the oode, and it is not error for the court to entertain such a demurrer.</p>

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

Error from Pawnee District Court. ActioN by Jacob Leu & Boris against Daniel Mayer and others. At the April term, 1890, the defendants had judgment. The plaintiffs come here. The facts are set forth in the opinion.

Error from, Rice District Court. Action for mortgage foreclosure by Greenwood against Butler and others. Plaintiff had judgment, and the land was sold. From a portion of the order made on confirmation, plaintiff and the purchaser of the land bring error. All the material facts are stated in the opinion.

Error from Rice District Court. AcriON by Moore against Barstow to foreclose a mortgage. Plaintiff had judgment by default, directing sale of the land. Plaintiff brings here for review a portion of the order made on confirmation of the sale.

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

Error from Saline District Court. ACTION by Wmterbotham against the Union Pacific Railway Company, to recover for services performed. At the March term, 1890, plaintiff had judgment, and defendant brings error. The material facts appear in the opinion. The court below committed error in overruling the demurrer of defendant.

Original Proceeding in Habeas Corpus. A SUFFICIENT statement of the ease is contained in the opinion herein, filed December 9, 1893. Held: “ The doctrine of res adjudioata does not apply in cases of habeas corpus to judgments remanding a prisoner.

<p>1. CteFioiAi. Bond — Presumption as to Execution and Delivery. If a person signs his name as surety to an official bond, which is blank as to the amount of the penalty, and then intrusts such bond to another, and such bond afterward is filled up, and then presented by the principal, or anyone for him, to the proper officers for approval, and is accepted as an official bond of the principal, held, that such bond, so accepted, is prima facie evidence that it was filled up or completed with the authority of all the parties thereto. Held, further, That if such bond was afterward filled up by inserting the amount of penalty therein, without the authority, consent or knowledge of the surety, such surety cannot complain, because by his own act or negligence he enabled the principal, or some one for him, to have such bond approved, acoepted, and filed as an official bond.</p> <p>2. Township Tbeasdree, Inabilities of — Sureties Estopped, k township treasurer, by aeoepting the office, assumes upon himself the duty of receiving and safely keeping the township money, and of paying it out according to law; and it is no defense for such treasurer or his sureties, when sued upon the official bond for a balance unpaid, that he kept the township money on deposit in a bank with the knowledge and consent of the township board; that the bank suspended; that the clerk of the township filed a claim with the as-signee of the bank for the township money, and received a certificate therefor; that subsequently a dividend was paid and accepted by the township, which, however, left the balance due from the treasurer sued for.</p>

JError from Allen District Court. ACTION by Burnham against Anderson, to recover land. Judgment for plaintiff at the adjourned June term, 1890. The defendant comes to this court. The facts appear in the opinion.

Error from Reno District Cowrt. ACTION by the Hutchinson Hardware Company against the First Presbyterian Church of Hutchinson and others to enforce a mechanic’s lien. From the judgment rendered at the March term, 1889, the defendant church brings the case to this court.

Error from Kingman District Court. ACTION by the Nashua Savings Bank against Joseph Thomas, the Chicago, Kansas “It is hereby stipulated and agreed by and between the plaintiff and the defendant the Chicago, Kansas & Western Eailroad Company that the only question in dispute, and the only question to be settled by the court, in this case, is as to whether the plaintiff herein is entitled to a judgment herein barring the rights of the defendant the Chicago, Kansas & Western…

<p>1. Undbb Kansas Statutes, a Trust Resulted. The defendant had considerable property in the state of Illinois, which she intrusted to her hnsband for management. The greater part of it was real estate, which was conveyed to him to be held in trust for her. The real estate was subsequently sold, converted into money, and turned over to the defendant as her own. Afterward, they came to Kansas, where the money was invested in real estate by the husband as the agent of the defendant. Although the understanding was that the oonvey-anoe was to be made to the defendant, who paid the consideration» the title was taken in the name of the husband, without her consent. Held, That under the Kansas statutes a trust resulted in her favor; held, further, That as the Illinois lands were sold and the possession of the proceeds was obtained by the defendant, the question of whether the trust in those lands was duly created and was enforceable under the statutes of Illinois has become immaterial.</p> <p>2. Paboii Evidence — Contradicting Conveyance. The facts and circumstances from which the trust resulted were properly shown by parol proof, notwithstanding it tended to contradict the conveyance wrongfully made to the husband.</p> <p>3. Findings Formulated by Counsel. Findings of fact and conclusions of law were prepared and presented to the court, and after an examination of the same were adopted by the court as its own. Held, That the fact that they were formulated by counsel at the request of the court is no ground for criticism or objection.</p> <p>4. Review — Practice. The objections to testimony offered should be distinctly pointed out in order that the court may rule intelligently upon them, and unless this is done they are not entitled to consideration upon a review.</p>

Error from Lincoln District Court. ActiON by Johnson and others against Polley for an injunction. Judgment for plaintiffs, at the February term, 1890. The defendant brings the case here. The opinion states the facts. “A debtor cannot commit a fraud upon his creditor by disposing of property toward which the eye of the creditor need never turn.

Error from Cloud District Court. This action was commenced by Ben. Saindon against the Kansas Farmers’ Fire Insurance Company, upon an insurance policy dated the 1st day of April, 1887, for damage sustained by reason of a fire which occurred November 6, 1888, and during the term of the policy.

Error from Ohase District Court. ACTION by Spillman and others against Quinn, to recover possession of a certain tract of land in Butler county. Tbe venue of the action was changed to Chase county. Judgment for plaintiffs at the February term, 1890. The defendant brings the case to this court. The facts are sufficiently stated in the opinion herein, filed December 9, 1893.

Error from Thomas District Court. The facts in this case fully appear from the findings of the-trial court, which are as follows: “1. Held: that no one but the legal owner can dedicate streets to the public use. Brooks v. City of Topeka, 34 Kas, 277; Smith v. Smith, 34 id. 301; Sullivan v. Davis, 29 id. 33; Armstrong v. City of Topeka, 36 id. 432; The State v. O’Laughlin, 19 id. 505.

IN 1891, the legislature passed the following act: “SECTION 1. That the county commissioners of Barber county, Kansas, are hereby authorized to purchase at their true value any and all bridges built upon the public highways of said county by any township or private person or persons, and pay for the same in county bonds.

f Appeal from Wyandotte District Court. Prosecution for murder; trial at the December term, 1890; verdict, guilty of murder in the second degree; new trial denied; the defendant, Fred. Sorter, sentenced to confinement in the penitentiary for 10 years. He appeals. All the material facts are stated in the opinion.

Error from Sedgwioh Court of Common Pleas. Suit was brought in the court of common pleas of Sedg-wick county by A. B. Calvert, as plaintiff, to recover for loss of services and expenses incurred on account of an injury received by his little daughter. The accident happened on the railroad track, in Orme street, Wichita. Plaintiff resided with his family in a house about 40 feet distant from the track.

Original Proceeding in Mandamus. Action by Pounds against Rodgers, as county treasurer, and others. The opinion herein, filed January 6,1894, state» the material facts.

Error from Rooks District Cout. From the order of final settlement of the accounts of Silas-N. Brooks, as administrator of the estate of Calvin K, Brooks, deceased, Martin Brooks and James Brooks, heirs of decedent,, appealed to the district court. The order of settlement was-there affirmed, and appellants bring error.

Error from Jefferson District Court. ACTION by School District No. 8, of Jefferson County, against J. M. Gibbs, as county clerk, and others, for an injunction. Plaintiff complains of an order denying the relief sought, and brings the matter to this court for review. The • facts sufficiently appear in the opinion.

ON the 13th day of February, 1893, there was filed an information against L. B. Yates, charging him in several different counts with having violated the prohibitory liquor law in his drug store in the city of Hiawatha. After Yates was arrested, he moved to quash the warrant. This motion was overruled at the February term, 1893, and the cause continued to the'May term, Yate3 being required to give a recognizance in the sum of $1,000.

<p> Appeal from, Brown District Court. </p> <p>The foregoing cases are sufficiently stated in the opinion herein.</p>

Error from Miami District Court. ACTION by A. K. Sellers and another against Rebecca Crossan, to set aside a judgment. There was judgment for defendant, and plaintiffs bring error. The opinion states the material facts.

Original Proceeding in Mandamus. It is alleged in the alternative writ that Ezra Spencer is the county treasurer of Sumner county; that the defendant William H. Carnes is the county clerk, and the other defendants are county commissioners of said county; that the county was organized by proclamation of the governor on February 7, 1871.

Error from Shawnee Circuit Court. This action was brought in the circuit court of Shawnee county by Simon Pruessner against Joseph L. Sheldon and others, May 5, 1891, to foreclose a mortgage given by Joseph L. Sheldon and wife to Henry S. Pruessner, to secure the sum of $1,700, and interest.

Error from Shawnee District Court. Action by Simon Pruessner and others against Joseph L. Sheldon and another to foreclose a mortgage. Judgment of foreclosure and a sale and order of confirmation. Defendants, Sheldon and wife, come to this court. The opinion states the facts.

Appeal from, Meno District Court. Pat. HOLLAND, convicted of selling intoxicating liquors unlawfully, appeals. The opinion states the material facts.

Error from, Jewell District Court. ActioN by Sarah Kreamer against Newton Kreamer and another on a bond. Plaintiff had judgment, and defendants come to this court. The opinion states the case.

Error from Jackson District Court. The First National Bank of Holton, before a justice of the peace, sought to recover against Abram Coffelt, primarily upon a promissory note dated August 26, 1889, for $192. The defendant pleaded non est factum, and verified his plea. Thereupon plaintiff, by amendment, declared, first upon the note, and upon a series of 12 notes, all being renewals but the first note, the note sued on being the last of the series of renewals.

Error from Saline District Court. Replevin by the First National Bank of Cobleskill, N. Y., against Emmitt. Judgment for defendant. Plaintiff comes to this court. The opinion states the facts.

Error from Graham District Court. Action to cancel a certain deed. Judgment for defendant,. Henry. The plaintiff, Jenkins, brings the case to this court.

Error from Cowley Eistriot Cowrt. ON July 30,1888, Alfred and Elizabeth Hurst commenced their action against the St. Louis & San Francisco Railway Company, before W. D. Kreamer, a justice of the peace of Arkansas City, in Cowley county, to recover damages on account of the killing of stock by the railway company, claiming $100, the value of the animals, and $100 as attorney’s fees. Summons was issued and served upon the agent of the railway company.

Error from, Ford District Court. Action by F. R. Newberry and another against the Arkansas, Nansas & Colorado Railway Company. The service of summons having been set aside, plaintiffs come here. The opinion states the facts.

Error from Reno District Court. Action by Horne against The Company for breach of contract. Judgment for defendant company. Plaintiff comes here. The opinion states the facts.

Error from Miami District Court. ACTION to foreclose a mortgage. Judgment for defendants) Wygal and others. Plaintiff, Bigelow, brings the case here. The opinion states the case.

Error from Graham District Court. ActioN on an official bond by the Board of Commissioners of Graham county against Van Slyclc and others. There was judgment for defendants on demurrer to the petition, and plaintiff comes to this court. The opinion states the facts.

Error from, Cowley District Court. The opinion states the nature of the action and the material facts. Judgment for plaintiffs, Denning and another. The defendant, Yount, brings the case to this court. The sale for which a commission is claimed, and for which judgment was rendered in this case, if made by plaintiffs below, was made in violation of law, and plaintiffs should not have been permitted to recover.

JError from Miami District Court. This was an action for damages for personal injuries received by William Ryan while working for the Kansas City & Pacific Railroad Company as a section hand 5 J miles south of Paola, Miami county.

Original Proceeding in Habeas Corpus. PETITION by H. W Lewis, for release from custody on a commitment for contempt. The opinion herein, filed January 6, 1894, states the material facts.

Error from Thomas District Court. The plaintiff made a timber-culture entry on the northwest quarter, section 31, township 7, range 33, in Thomas county, on the 11th day of May, 1886, and entered into possession of said land and continued to hold it up to the time of the trial of this action. The land adjoins the town site of Colby, being immediately north of said town site.

Original Proceeding im, Habeas Corpus. Petition filed in this court on December 16, 1893.

<p> Appeal from, Finney District Court. </p> <p>The opinion herein, filed February 9, 1894, contains a sufficient statement of the facts.</p>

Error from Shawnee District Court. ACTION by the Railroad Compcmy against the Board of Railroad Commissioners of Kansas for an injunction. The plaintiff brings here for review an order denying a temporary writ. The opinion states the material facts. It is clear that the act of 1887 with reference to crossings is an exercise of the power of eminent domain. N. P. Rid. Co. v. St. P. &c. Rid. Co., 1 McCr. 502; U. P. Rid. Co. v. Burlington &c. Rid. Co., 1 id. 452.

<p> Appeal from, Norton District Court. </p> <p>Burwell, convicted of unlawfully receiving stolen property, appeals. The opinion states the case.</p>

<p>CoAii Mine — Location and Survey. Chapter 127 of the Laws of 1877 does not authorize a survey by order of a district court of that part of a mine which is located beyond the state line, in the state of Missouri, even though the only means of access thereto is by a deep shaft located in Kansas.</p>

<p> Error from Rush District Court. </p> <p>Action by the Railway Company against Yawger. The plaintiff company brings here for review a judgment on a motion to retax costs.</p>

Error from, Cowley District Court. This action was commenced by Davis & Bankin against the Dexter Butter and Cheese Company, on the 19 th of October, 1889, to recover $1,553.09, being the balance due for constructing and completing a cheese factory at Dexter, in Cowley county.

Error from Riley District Cowrt. ACTION brought by IAmboeher against Higinbotham, to recover $1,078.20, which had been deposited with Higinbotham as a private banker. There was a trial without a jury, and the following findings of fact and of law were made by the court: “findings of fact. “1. Prior to the 31st day of December, 1888, defendant, William P. Higinbotham, had been engaged in business as a private banker at Manhattan, Riley county, Kansas. “2.

Error from Pratt Pistriot Court. ACTION by Calhoun against Hopper and others to foreclose-a mortgage. Judgment for the plaintiff at the January term,. 1890. The defendant Hopper brings the ease to this court. The opinion herein, filed February 9, 1894, states the material facts.

Error from Shawnee District Court. Action for conversion. December 12. 1889, plaintiff, Lowenthall, had judgment, and defendant, Ament, comes here. The opinion states the facts.

Error from, Clay District Court Action by Beegle against the Bank for conversion. Plaintiff had judgment at the March term, 1890. The defendant brings the case here.

Error from Stafford District Court. This action was brought by the plaintiff in error to recover the sum of $115.66, which it claimed was due it as a balance on account for lumber and building materials sold to the defendant.

Error from Shawnee District Cowrt. On the 1st day of March, 1892, in the district court of Shawnee county, a judgment of foreclosure of a mortgage upon land was rendered in favor of the Belknap Savings-Bank against Wyatt R. Johnson, for $1,676. In April, 1893, the land was sold upon an order of sale to satisfy the judgment, by the sheriff of Shawnee county, who in his return charged the usual fees and commission provided by law in such cases.

Frror from Norton District Court. ActioN by Frey against Butler and another. Judgment for defendants September 29,1889. The plaintiff comes here. The opinion states the nature of the action and the material facts.

Error from Montgomery District Court. ACTION by Adelia Roe against O. F. Roe for divorce. From the decree rendered May 3, 1890, defendant brings error. The opinion states the facts.

Error from Simmer District, Court. Action by W. M. Arnold and S. M. Arnold against tbe Atchison, Topelca & Santa Fé Railroad Company and the Southern Kansas Railway Company, to recover damages resulting from obstructing a street. At the January term, 1890, there was a judgment for plaintiffs, and defendants bring error. The opinion states the facts.

Error from Sumner District Court. Action by Luening and another against the Railroad Company and another to recover damages for obstructing a street. Judgment for the plaintiffs, at the January term, 1890. The defendants bring the case here. The opinion states the facts.

Error from Shawnee District Court. Arbitration proceedings between John W. Russell and Mary E. Seery, as administratrix of the estate of James Seery, deceased. From a judgment setting aside the award filed, Russell brings error. Further facts are stated in the opinion.

Error from Sumner District.Court. Action by Davidson against the Railroad Company and another for obstructing a street. Judgment for the plaintiff at the January term, 1890. The defendant companies bring the case here. The opinion states the facts.

Error from Osage District Court. Mes. JaNE JoNES commenced her action against D. W. Holderman, Charles Milliken, Charles Douglass, Henry Ja-coby, and Waldo Wooster, before a justice of the peace in Osage county, on December 21, 1889, for wrongful conversion of certain cattle and horses. The defendant Jacoby was served with summons in Osage county; the other defendants were served with summons in Lyon county.

Error from Wyandotte District Court. Action by the Coal Co. against the Brick Co. to recover on an account of goods sold and delivered. Judgment for defendant. Plaintiff comes to this court. The facts appear in the opinion herein, filed February 9, 1894.

Original Proceeding in Quo Warranto. ActioN by Mary E. Lease against J. W. Freeborn, to try defendant’s title to membership of the state board of charities. Heard on demurrer to petition. Held: wherever that question has reached the court of last resort in many of the states, that the authority to appoint has only an implied power to remove where the term of the office is not fixed by law, and where it is so fixed or declared, the power to remove does not exist.

Error from Shawnee District Court. This action was brought by plaintiff in error to set aside a conveyance from herself and husband to the defendant’of a five-acre tract of land constituting their homestead. It is alleged in the petition that the signature of the plaintiff to the deed was obtained by fraud and duress.

Error from Bourbon District Court. ON December 24, 1887, Wm. Y. Berry was an engineer of the Missouri Pacific Railway Company, which company at that time was operating the Missouri, Kansas & Texas railway.

Motion for Rehearing. The opinion in Berry v. K. C. Ft. 8. & M. Rid. Co., supra, contains a sufficient statement of the facts. The opinion herein was filed May 5, 1894.

Error from Cloud Distriot Court. ON the 28th day of September, 1885, before A. B. Chaf-fee, a justice of the peace of Cloud county, in this state, F. E. Barons recovered a judgment of $185.08, and $32.03 costs, against the Clyde Milling Company, of Cloud county, for rent of a certain strip of land, upon a written lease, executed the 1st of August, 1884. The rent sued for was for the months of May and June, 1885, at $75 per month.

M'ror from Coffey District Court. ACTION by the Burlington Insurance Company against Mortimer for an injunction. At the April term, 1890, judgment for the defendant. Plaintiff comes here. The opinion states the facts.

Error from Kiowa District Cov/rt. Action by the Phelps & Bigelow Windmill Company against II. F. Megenity and others to foreclose a mechanic’s lien. After a judgment was entered for plaintiff, W. A. Er-ving, the mortgagee of the property, moved the court to open the judgment and to give him leave to answer in the case, which motion the court denied. Erving comes to this court. The opinion states the facts.

M'ror from Barton District Court. ON the 28th of September, 1889, T. C. Cole commenced bis action against the Great Bend Land and Lot Company to recover $2,625, with interest thereon at 8 per cent, per annum from the 15th day of July, 1887, upon certain promissory notes executed by the company, and also to foreclose a mortgage upon certain real estate. The notes secured by the mortgage were given in part payment of the purchase money of the premises described in the mortgage.

Error from Norton District Court. ActioN by the Chicago Lamber Company against Allen and others for the price of goods sold and to enforce a mechanic’s lien. Judgment for defendants February 22, 1890. The plaintiff brings the case here. The facts are stated in the opinion.