Volume 53 — Kansas Reports

Error from Franklin District Court. Aaron S. Drake was employed by the railroad company as a laborer, working about the shops, grounds and yards of the railroad company. On April 28, 1888, he and four other men were directed to unload rails from a push car, some of which were 30 feet long and some only 27 feet long.

On the 5th day of October, 1892, there was filed in- the di&trict court of Stafford county the following information, omitting caption, jurat, and the names of witnesses: “I, the undersigned county attorney of Stafford county, Kansas, in the name and by the authority and on behalf of the state of Kansas, give information, that on the 22d day September, 1892, in said county of Stafford and state of Kansas, one Joseph Clyne did then and there unlawfully, willfully and…

Error from Shawnee District Court. D. W. Boutwell brought suit in the district court of Shawnee county against the City of Topeka, D. C. Metsker, its mayor, John F. Carter, Joseph Reed, Pat. Wilson, J. W. Gardiner, Henry Bernard, John Ewing, and Ben Williams, charging them with assault and battery, false imprisonment, and other wroDgs and indignities connected with such imprisonment, for which he demanded damages.

Error from Phillips District Cowrt. . ON the 3d day of May, 1889, The Equitable Mortgage Company commenced its action against John W. Lowe, Josiah Mitchell, the Mortgage Trust Company of Pennsylvania, the Kansas Trust and Banking Company, of Atchison, and others, to be subrogated to four mortgages, aggregating $934.13, which it had paid off upon certain premises in Phillips county. Trial had at the January term of the court for 1890, before the court without a jury.

Error from, Lyon District Court. Action by Lafeyth against the Emporia National Bank for the alleged conversion of certain cattle. Judgment for defendant, March 29, 1890. The plaintiff comes here. The opinion states the facts. We think that Bacheller was the agent of the bank in selling these cattle.

Error from Allen District Court. This action was brought by George A. Bowlus, to foreclose a mortgage executed by the plaintiff in error and his mother, Celinda Thomas, to the Iola Building and Loan Association, and to recover the amount of a bond executed by the same parties, which said mortgage was given to secure. Bowlus claimed by assignment from the building and loan association. Defendant in error, R. M. Purdom, and one W. H. McDowell, were also joined as defendants.

Error from Cowley District Court. IN January, 1889, Stow & Hite, a partnership composed of E. B. Stow and Rudolph Hite, were indebted to W. P. Hardwick, assignee of the estate of C. W. Ridgeway, for goods sold by Hardwick to Stow & Hite as such assignee, being goods belonging to his estate. Stow & Hite were at that time engaged in a general merchandising business, at Dexter, Cowley county, in this state, and the goods sold them by Hardwick were a general stock of merchandise.

Error from, Miami Eistriet Court. ACTION in replevin by the Banh against Barhalow, as sheriff. At the February term, 1890, there was a judgment for defendant, and plaintiff comes to this court. The opinion states the material facts.

Error from Cowley District Court. Action on two promissory notes by the Wichita Overall and Shirt- Manufacturing Company against Miller. There was a judgment for plaintiff at the April term, 1890, and defendant brings error.

Error from, Sedgwiek Court of Common Pleas. This was an action commenced by John V. Farwell & Co. and L. E). Skinner against W. W Hays, as sheriff, to recover $10,000 damages for an alleged taking and conversion of goods and merchandise.

Error from Dickinson District Court. ACTION by Tuston and another against Poor to enjoin the enforcement of a certain judgment. There was a judgment for plaintiffs. Defendant comes to this court.

The material facts appear in the opinion herein, filed on March 10, 1894. The question is, does the first count include within it the offense of attempting to commit an offense? Held: that a verdict of “guilty of an attempt to commit a rape, as charged,” is sufficiently responsive to the information, and is valid. See, also, The State v. Fisher, 8 Kas. 208; The State v. White, 44 id. 514. ,

Error from Wyandotte Court of Common Pleas. Action by Catherine Stewart and others against Jolm Stef-fins and others to restrain the collection of a special road tax. Judgment for plaintiffs, and defendants bring error.

ON the 12th day of July, 1892, an information was filed in the district court of Marion county against A. D. Cullins, charging him with selling intoxicating liquor without first taking out and having a permit'as required by law. The information contained five counts. Upon the trial, William Dannenfelser testified as follows: “Ques. How much [whisky] did you get? Ans. Well, I got a fourth of a pint; four of us got a pint. “Q. Who were the four of you?

<p>1. County Tbeasubeb — Fees. Eees received by county treasurers for issuing school-land receipts must be accounted for by such treasurers and deducted from the quarterly installments of their salaries the same as other fees. (Comm’rs of Graham Go. v. Van Slych, 52 Kas. 622.)</p> <p>2. - Compensation — Accounting. Where a treasurer receives compensation for making and certifying abstracts of title and for writing letters and giving information concerning taxes, etc., he is not required to report or account for the same as fees arising in the performance of official duties.</p> <p>3. County, Judgment Against — Payment in Good Faith. Where judgment is properly rendered against a county, and the board of county commissioners orders the payment thereof from the funds of the county in the hands of the county treasurer, and such county treasurer, in pursuance of the order of the county commissioners, makes such payment in good faith, he cannot be compelled to return to or replace the same in the county treasury.</p>

Error from Greenwood District Court. Action on a policy of insurance by Sarah Gillett against the Burlington Insurance Company. There was judgment for defendant, on demurrer to the evidence, and plaintiff brings error. The proof was ample that the notice required by the terms of the policy was given. I insist that a waiver by the company of proof of loss was as clearly proven.

Error from Crawford District Court. ActioN by Berry against the Railroad Company to recover damages for personal injuries. Judgment for plaintiff' for $500. The defendant company comes here. The opinion states the facts. There was no sufficient evidence to sustain a verdict. Whilst perhaps it may not be said that there is absolutely no evidence to sustain the verdict and judgment, it can be very confidently and very truthfully stated that there is no sufficient evidence.

Error from Clay District Court. This was an action in the nature of ejectment, commenced on December 26, 1887, by Patrick McDonough against H. H. Merten, to recover the southwest quarter of section… Held: that where a tax deed fails to recite a compliance with the law upon which it is based, it is void.

Error from Linn Eistriot Court. The opinion states the case. 1. There is no evidence showing that James D. Snoddy, defendant in error, was ever employed by any competent authority to bring said action of replevin for and on behalf of the city. The mayor alone cannot enter into a contract or employment that will bind the city. Gen. Stat. of 1889, ¶¶ 935, 936. 2.

Error from Sumner District Court. ACTION by W. H. GHllam against Thomas M. Adams, as sheriff, for wrongful attachment. There was judgment for plaintiff, and defendant brings error.

Error from Cloud District Court. This was an action in the court below brought by George L. Darhhurst against The First National Banlc of Clyde to recover the statutory penalty for neglecting and refusing to enter satisfaction of certain chattel mortgages. Trial before the court with a jury. Judgment for the defendant. The plaintiff brings the case here.

<p> Error from Kingman District Court. </p> <p>The opinion herein, filed on March 10, 1894, contains a sufficient statement of the case.</p>

<p>1. Divoeoe — Abandonment—Evidence. To reverse the judgment of a district court refusing a divorce on the ground of abandonment, the evidence showing an intentional desertion for at least one year must be clear, convincing, and uncontradicted, and it must also appear that such abandonment was not the result of the plaintiff’s own wrongdoing.</p> <p>2. Tempobaey Insanity, Sow to be Viewed. The case of a wife who has been afflicted with temporary insanity will be viewed with especial care and consideration, and all her actions will be weighed in the light of her physical and mental infirmities.</p>

Error from Phillips Eistrict Court. This action was commenced by Dalton against MoCormioJc, on the 22d day of November, 1887, for the recovery of $1,-008.11 damages, which Dalton claimed to have sustained by reason of McCormick’s refusal to allow him to perform and complete certain railroad grading, according to the terms of an alleged verbal contract.

Error from Brown District Court. ACTION by Joseph Trompeter, administrator of the estate of Frona Trompeter, deceased, against the City of Horton, to recover for the death of decedent. There was judgment for plaintiff, and defendant brings error. We think the court erred in not giving instruction No. 1, asked for by plaintiff in error. The evidence clearly shows that the deceased had no estate to be administered upon at the time of her death.

Error from, Sedgwick Court of Common Pleas. Richardson, Simon & Co. brought this action in the district court of Sedgwick county, (which action was transferred to the court of common pleas of said county,) against the Atchison, Topeka & Santa Fé Railroad Company, alleging that on the 31st day of March, 1886, at Leavenworth, they delivered to the Leavenworth, Topeka & Southwestern Railway Company 135 barrels of apples, consigned to themselves at San Francisco, Cal.; that in…

Error from Miami District Court. ON June 2, 1887, Frank 8. Carroll and . wife exécuted a note and mortgage for $1,500 to Daniel L. Chipman, and on the same day executed a second note and mortgage for $500 to Ephraim Mower. The land described in the mortgages then constituted the homestead of Frank S. Carroll, and the title to the same was in him.

Error from Saline District Court. Action by Benjamin JR. Sheldon against The Chicago, Kansas & Western Railroad Company and others to foreclose a mortgage. From the judgment rendered, defendant railroad company brings error. Plaintiff is entitled to judgment upon the agreed statement of facts, because its right-of-way was duly and legally condemned. It is undisputed that at the time of the condemnation proceedings Allison was the owner of the land.

Error from Atchison District Court. The plaintiff in error brought this action, alleging that he was the owner of the undivided half of a 69-acre tract of land in Atchison county, which had been in possession of the defendant, and of which he had received the rents and profits from November 15, 1859, asking for a partition, and an accounting for profits.

Error from Rooks District Court. REPLEVIN by Cray against Delay, as sheriff. Judgment for defendant. The plaintiff comes to this court. The opinion states the facts.

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

Error from, Barton District Court. ACTION on a contract by Diffenbacher against Hulme and another. Judgment for plaintiff. Defendants bring the case here. The opinion herein, filed March 10, 1894, states the material facts.

Oiiginal Proceeding in Habeas Corpus. On November 29, 1893, the following complaint, duly verified, was filed with the probate judge of McPherson county: “State op Kansas, 1 r ,, , , , McPherson County, )ss‘ In the Probate oourt “E. F. Haberlein, being duly sworn, on oath says, that Robert Hunt and Edward Sanders are boys under the age of 16 years; that said Robert Hunt and Edward Sanders are liable to punishment by imprisonment, under the laws of this state, for the offense…

Error from, Marion District Court. The plaintiffs filed their petition on July 15, 1893, against L. D. Lewelling, as commander in chief of the Kansas national guard, H. H. Artz, as adjutant general of the state, and S. A. Maginnis, as acting colonel of the second regiment of the Kansas national guard, alleging that they, the plaintiffs, were the officers and privates of company G of the second regiment, duly commissioned and enlisted as such; that their term of service, as…

Rtrror from, Atchison District Court. This was an action of injunction to prevent the promulgation and enforcement of a revision of the freight rates made by the board of railroad commissioners, by which the rates on car-load lots of sugar, coifee, beans and canned goods were reduced.

<p>Conyebsion — Sale of Hogs by Agent. Where the petition of the plaintiff alleges that the defendants wrongfully obtained the possession of certain hogs belonging to him, and converted them to their own use, and the proof shows that the hogs were shipped to the defendants by the plaintiff’s agent, who had authority so to do, for sale, and they were sold by the defendants under such authority, and where no amendment to the plaintiff’s petition is made, held, that a demurrer to the plaintiff’s evidence was properly sustained, even though it appears that the defendants have not paid to plaintiff, or his agent, the proceeds of the property sold.</p>

Error from Wyandotte District Court. This action is submitted with No. 7054, between the same parties, just decided.

Error from Norton District Court. This was an action brought by A. J. Briggs to foreclose a mortgage of $1,300, given by Henry F. Brown and wife to Alexander M. Freelove, on the northwest quarter of section 30, in township 1, range 21, in Norton county in this state, and which had been transferred by Freelove to Briggs. All the defendants, except Geo. I. Thompson and wife, and the-Nebraska and Kansas Farm Loan Company, made default.

Error from Ellsworth District Court. ACTION by Moore Brothers to recover from Latshaw Brothers $500 as commission for the sale of a gristmill owned by the latter, and situated at Wilson.

Error from Finney District Court. Action by The Banh against Kitchen. Judgment for the plaintiff. The defendant comes to this court. The opinion herein, filed April 7, 1894, states the material facts.

<p>Appellate Jueisdiotion — Case, Dismissed. The amount in controversy in the district court being less than $ 100, and the case not falling within any exception contained in ¶ 4612 of the General Statutes of 1889, the case is dismissed, on the authority of Richmond v. Brum-mie, 52 Kas. 247.</p>

Error from, Graham, District Court. On the 26th day of November, 1888, James and Tempty Downing filed their bill of particulars against The W. J. Gow & Bros. Investment Company before a justice of the peace of Graham county, alleging that the sum of $300 was due them from the defendant on August 24,1888, and praying for judgment for this sum, with interest at the rate of 7 per cent, from that date, with costs.

Error from Phillips District Court. The opinion states the ease. The cause of action accrues at the time the mortgage is actually paid, and the statute commences to run from that time.

<p> Error from Riley District Court. </p> <p>The opinion herein, filed April 7, 1894, states the material facts.</p>

<p> Error from Trego District Court. </p> <p>Action by Rohlfing & Co. against Carper and others. Judgment for defendant Carper. The plaintiffs come to this court.</p>

Error from Norton District Court. During the year 1889, Tilden & Baum were doing a general merchandise business at Norton, in this state. On May 10, 1889, they received a consignment of flour from The Western Star Milling Company, doing business at Salina, in this state. On June 17, 1889, Tilden & Baum received another consignment of flour from the same company.

Error from Marion District Court. Actions by E. S. Walton, as assignee of E. N. Eby, against Mary E. Eby and against Edward E. Eby, to set aside conveyances made by E. N. Eby as fraudulent. From judgments sustaining demurrers to the petitions, plaintiff brings error. These cases were argued and decided before the opinion was rendered in Chapin v. Jenkins, 50 Kas. 385, or we think the decisions would have been different in the cases at bar.

Error from Norton District Court. Action by Case & McNeny against Amon Butler, sheriff, to recover certain goods. Judgment for plaintiffs. Defendant brings the case here. The opinion states the facts.

Error from Butler District Court. On the 11th day of January, 1889, Emily C. Harrison commenced her action against A. L. Redden by filing the following petition: “The plaintiff, for her cause of action against said defendant, says that she is 60 years of age, is now and for 20 years last past has been a resident of Butler county, Kansas; that on the 11th day of October, 1887, the defendant was a duly-qualified and acting judge of the twenty-sixth judicial district of the…

<p>Cake-Made — Settling — Expiration of Term of Judge. A judgment was rendered by a judge of the district court near the end of his term, on November 1, 1889, when 60 days were given to make a case for the supreme court; 10 days thereafter were allowed to suggest amendments thereto, and it was ordered that the case should be settled at some future time, on 5 days’ notice. The case was served December 28, 1889, but no amendments thereto were ever suggested or made. The term of the district judge who tried the cause expired on January 13, 1890, three days after the time for suggesting amendments had passed. No notice of the presentation of the case for settlement and signing was given until the following June, and the case was settled, over objections, on July 10, 1890. Held, That, as the term of the judge expired when no time was fixed for settling and signing the case, he had no authority to settle and sign the same.</p>

Error from Norton District Court. Action by The Kilpatrick-Koch Dry-Goods Company against Kahn Bros, and another. Judgment for defendants. The plaintiff brings the case here. The opinion states the facts.

<p>1. Dangebous Pbemises — Injury to Child — Liability. Where a railroad company had recently built stock yards on the outskirts of a little town containing a population of about 100 people, which were not located upon any traveled wagon road, but 200 yards from the main street of the town, and with only two or three houses in the neighborhood, the nearest being distant between 100 and 150 yards, which stock yards were fully inclosed and had safe and secure gates through which to enter, but upon the inside there was a defective gate in a dangerous condition, if any weight was brought to bear upon it, such company would not be liable for the death of a child, (whose parent lived in plain view of the yards, and as close to them as the depot of the company,) caused by the falling of such defective inside gate, while the child was playing or swinging upon it, although the company knew that children played in the vicinity or on the outside of the yards, if the child injured, in order to play or swing upon the inside gate, entered the stock yards without the consent or knowledge of the railroad company by climbing over an outside gate for the purpose of playing or swinging on the inside gate.</p> <p>2. Raibboad Company — Negligence—When Liable. Under certain, circumstances, the railroad company might be liable on the ground of negligence for the death or personal injury of a child of tender years from the falling of a defective inside gate of the stock yards. If the company consented to or had knowledge that children frequently climbed over the outside gate or inclosure of the yards to play or swing upon a defective and dangerous inside gate, and took no means to keep children away, and no means to prevent accidents; or if, with the knowledge that children of tender years were in the habit or practice of resorting to the vicinity of the stock yards for play, the outside gate of the yards was left open by the railroad company at the time of the injury; or, if opened without its authority, it was negligently permitted to remain open, so that children might enter and play.</p>

Error from Norton District Cowrt. ACTION by Mahilda A. Duvall against William Simpson and Emma Simpson, his wife, to correct a mutual mistake in a deed. From a judgment sustaining a demurrer to the petition, plaintiff brings error. This is clearly an equitable action, under the allegations of •the petition.

Error from, Anderson District Court. This action was brought to enjoin the defendant from occupying and using the southeast quarter of block 49, in the city of Greeley. The plaintiff claims that the whole east half of said block is a public square. The defendant claims that the southeast quarter of said block is divided into four lots, and is his private property. It is conceded on all hands that the northeast quarter of said block is public ground.

Original Proceeding in Quo Warranto. At a regular meeting on the 5th day of February, 1894, the mayor and council of the city of Topeka appointed Geo. I). Hale city assessor. He thereafter qualified. On February 6, 1893, the mayor and council had appointed Oscar Bisehoff city assessor, who qualified, and entered at once upon the discharge of the duties of his office.

Error from Nemaha District Court. From a conviction for burglary, the defendant Stickney appeals. The opinion states the material facts.

The material facts are stated in the original opinion, reported in 52 Kas. 297, et seq., and in the opinion herein, filed May 5, 1894.

INFORMATION charging that, on the 22d day of May, 1893, in the county of Reno and state of Kansas, one John Sutton, then and there, unlawfully and knowingly, did receive 500 feet of dressed and matched pine lumber, of the value of $10, of the personal property of the Atchison, Topeka & Santa Fé Railroad Company, a corporation duly organized under the laws of the state of Kansas, then lately before stolen, taken and carried away in and from a freight car, and standing upon…

M'ror from, Barton District Court. Action by the Brewing Association against Wolff and another. Judgment for plaintiff for part of its claim, and it brings error. The opinion states the facts.

<p>1. Robbery of Money from, Person, What is. To constitute the crime of robbery by forcibly taking money from the person of its owner, it is not necessary that violence to the person of the owner should precede the taking of the money; it is sufficient if it be contemporaneous with the taking.</p> <p>2. Instruction, Construed — “Taken?' Where the court charged in substance that the violence to the person of the owner of the money must have been with intent to rob, and that the money must have •been “obtained from the money drawer” in the presence of the •owner, by means of force and violence to his person and against his will, held, that, under the facts of this case, the word “obtained” fairly expressed the same idea as the word “taken,” and that no error was committed by the use of the word.</p>

Original Proceeding in Mandamus. This action was commenced in this court on January 4, 1894, to compel The Dodge Oity, Montezuma & Trinidad Railway Company and the other defendants to repair and… Held: from that time until the present, by other individuals. The total receipts from sale of stock by the Montezuma company, from its organization to the present time, are $63,900.

Error from, Ford District Court. Action by E. S. Ralston, trustee, Ed. F. Burrell, clerk, and H. J. Gyles, treasurer, and others, officers of Eairview township, in Ford county, against The Dodge City, Montezuma & Trinidad Railway Company, E. F. Kellogg, Harry Benjamin, and others. A temporary injunction granted plaintiffs was dissolved, and they bring error.

Error from, Johnson Eistriot Court. Action by the Gregory Grocer Company against Young & Conhoy. An attachment obtained by the plaintiff company was dissolved, and it brings the case to this court. The opinion states the facts. I. 0.

Whitmore was convicted of libel. He appeals. The opinion states the facts. The court erred; (1) In taking from the jury the question of malice, and in instructing them that if defendant published the matter set out it was libelous per se. In this there was material error.

Error from Kiowa District Court. ON March 10, 1885, Edward Scouten made an entry in the local United States land office at Larned of the northeast quarter of section 24, township 28 south, of range 20, in Kiowa county, containing 160 acres of land. On March 17, 1886, he executed and delivered two mortgages upon the same land to the Showalter Mortgage Company, one to secure $400 with interest, and the other to secure $60 with interest.

Error from Wyandotte District Court. ACTION by Henry Gay against Clara N. Sellers, Willard P. Holmes, and others. Judgment for plaintiff, and defendants other than said Holmes bring error. The facts appear in the opinion.

M'ror from Linn District Court. This action was brought on behalf of Morgan county, Missouri, against the defendants on the following bond: “Know all men by these presents, that we, D. Heidelburg, as principal, and John D. McRae, P. H. Ayres, and W. H. Ayres, as securities, acknowledge ourselves to owe and stand indebted to Morgan county, in the state of Missouri, in the penal sum of $2,000, well and truly to be paid, and to the payment whereof we bind ourselves, our heirs,…

C. 0. Beardsley was prosecuted under an ordinance of the city of El Dorado upon 44 counts, for the illegal sales of intoxicating liquors in June, July, and August, 1893, and was convicted in the police court. He appealed to the district court, where he was tried again. He was convicted in that court on 35 counts, and sentenced to pay a fine of $100 and to be imprisoned in the city prison of El Dorado for a period of 30 days on each count.

Error from Republic District Court. The opinion herein, filed May 5, 1894, states the nature of the action and the material facts.

<p>Justice oe the Peace, Appeal From — Defective Record. In this case a petition in error was filed in the district court to reverse a judgment of a justice of the peace for error in excluding testimony, but, as neither the motion for a new trial, notice of the time of hearing the same nor the action of the justice of the peace thereon was incorporated in the bill of exceptions, such errors could not be considered, and the district court rightly affirmed the judgment.</p>

Error from Republic District Court. The nature of the action and the material facts are set forth in the opinion herein, filed May 5, 1894.

Error from Gray District Court. Action by The State, on the relation of J. B. Naylor, county attorney, against The Dodge City, Montezuma & Trinidad Railway Company, and others, to obtain an injunction. A temporary injunction was refused, and plaintiff brings error. From St. J. & D. C. Rid.

jError from Finney District Court. ON the 2d of October, 1888, Benjamin F. Martin commenced his action against A. P. Kelly and W. E. Kelly, partners as the Prairie Lumber Company, before a justice of the peace of Garden City, in Finney county, to recover $45.60, for the monthly rent of $11.65 for lots 11 and 12, in block 38, in Garden City, under a lease alleged to have been executed on July 1,1887, for the period of five years, for the lumber company by one D. B. Ellis.

Error from Lyon District Court. ON May 20,1889, the The Boston Loan & Trust Company brought an action -against W. M. Organ and O. A. Wharton to recover $890.37, alleged to be due upon a promissory note which they had executed. Upon the same day an affidavit was filed to obtain service by publication, and also an affidavit to obtain an attachment; but no publication was then made, nor was any order of attachment issued.

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

Error from Wabaunsee District Court. AcriON by The Chicago Lumber Company against Limerick- and another. Judgment for defendant Limerick. The plaintiff comes here. The facts sufficiently appear in the opinion^

Error from Cowley District Court. On or about the 1st day of September, 1887, Joel Stewart,, deceased, leased of and from W. H. Osborn 105 acres of land, to be sown in wheat. The land is situate in the counties of Butler and Cowley, in this state. As rental, Stewart was to deliver to Osborn one-half aud one-third of wheat,, thrashed, and properly in bin. On or about the 28th of February, 1888, Stewart sold his interest in the growing wheat to C. H. Mabry for $185.

Error from Franklin Eistriet Court. ON May 1, 1886, E. S. Robinson sold a tract of land to John W. McConnell for $3,850, in consideration of the payment of $1,350 in cash and five promissory notes, each for $490, bearing date May 1, 1886, with interest at the rate of 8 per cent, per annum, maturing in one, two, three, four and five years, respectively.

Error from Linn District Court. ACTION by Gaunt against Harkness to recover on a promissory note. Judgment for defendant. The plaintiff brings the case here. The opinion states the facts. This court has gone only to the extent of saying that papers signed by the party, and already in evidence for other purposes, and signatures admitted to be genuine, may be used by the jury and by experts for the purpose of comparison to determine handwriting. (Macomber v. Scott, 10.

Error from Sumner District Court. Action by Painter against the Railway Company, to recover damages for bodily injuries. Judgment for plaintiff. The defendant brings the ease to this court. The opinion states the facts. ' -

Error from Wyandotte District Court. ACTION begun by Eugenia A. Brady on the 8th day of July, 1889, against the city of Kansas City, The Orchard Place Land Company, and the Husted Investment Company, to recover $4,000 damages from the overflow of her premises by the waters of Splitlog creek.

Error from, Greenwood District Court. ACTION by Bpioer against Wheeler to recover certain land. Judgment for defendant. The plaintiff brings the case to this court. The facts are stated in the opinion. We think this case stands practically on all fours with the case of Doty v. Bassett, 44 Kas. 754.

Error from Wyandotte District Court. This action was brought by Emma C. Slangstrom against The City of Kansas City and the Orchard Piace Land Company to recover damages for injury to her property resulting from an overflow of the same, and which was caused by the wrong of the defendant.

Error from Cloud District Court. The amended petition in this case alleges that the plaintiff is a corporation formed under the laws of the United States, engaged in the business of banking, at Concordia; that the authorized capital stock is $100,000, divided into 1,000 shares of $100 each, 96 of which are paid in full; that the defendant is county clerk of Cloud county; that on the first Monday of March, 1893, the assessors of the various townships and cities of Cloud…

Original Proceeding in Mandamus. This is an application for a peremptory writ of mandamus against the district court of Atchison county, to compel the entry of judgment of $21,593.50 upon a general verdict returned on the 29th of April, 1893, in favor of A. J. Harwi and against the Atchison Savings Bank, after the motion for a new trial had been overruled. The application is based upon the record in the action, and was made by the plaintiff on January 22, 1894.

Error from Cowley District Court. On the 16th day of March, 1887, Mary R. Weitzel and E. B. Weitzel, of Winfield, in this state, made and delivered to George P. Cole a lease of the St. James hotel, at Winfield, and stipulated in the lease that the furniture in the hotel “shall be holden for any arrears of rents due at any time thereof.” The lease was to expire on the 1st day of April, 1890.

<p>1. Austbalian Ballot Law — Wiling Nomination Certificate. Where a political party assembled in convention places in nomination a candidate íor a county office, and the president and secretary of such convention execute and verify a .proper nomination certificate, which is presented to the county clerk in due time to be filed, and is left with him for that purpose, it will be deemed to be filed, within the meaning of the Australian ballot law, although no indorsement of filing is written thereon, and although it is afterward mislaid or lost through the inadvertence or negligence of such officer.</p> <p>2. Ceetieioate, Defective —Remedy. Where a nomination certificate is found to be insufficient or inoperative, the defect may be corrected by the political party or persons making the original nomination, or by the executive or central committee of such party or persons, in the manner pointed out by § 9 of that law, at any time before election day.</p>

Frror from Brown District Court. Action by The State, on the relation of W. F. Means, county attorney, against the City of Hiawatha and the General Electric Company. Judgment for defendants on demurrer, and plaintiff brings error. The material facts appear in the opinion herein, filed at the June session of the court, 1894.

Error from Pawnee District Court. Apbil 14, 1890, the First National Bank of Larned, in this state, commenced an action before a justice of the peace in Pawnee county, against Harry Talcott, on a check, of which the following is a copy: “The First National Bank, Larned, Kas., 3-17, 1890.

Error from, Labette District Court. Action by Eichholtz and others against D. H. Martin, as county clerk of Labette county, and others, to restrain the collection of certain taxes. Judgment for defendants. Plaintiffs bring the case here. The facts appear in the opinion herein, filed June 9, 1894.

Error from Wyandotte District Court. Both of the above-entitled cases grow out of the grading of Second street, in Argentine, a city of the second class, and they are argued, briefed and submitted together. The defendants in error, who were plaintiffs below, are all owners of property abutting on Second street, against which special assessments were levied by an ordinance passed by the council on the 1st of February, 1892.

Error from Oherohee District Court. On June 14, 1889, J. B. Smith brought his action against W. M. Benham and A. T. Lea.upon the following promissory note: “$179.74.

Error from IAnn District Court. Attachments by Alfred Blaker and others against Hood & Kincaids, and O. E. Morse, as receiver of the firm of Hood & Kincaids. From an order discharging the attachments, made at the October term, 1893, plaintiffs bring error. The material facts appear in the opinion herein, filed June 9, 1894. 1. The act (chapter 43, Laws of 1891) is broader than the title and contains more than one subject.

<p>1. Condemnation Pboceeding — Notice, not Given. An attempted condemnation of land for the right-of-way of a railroad, without giving the notice provided by ¶ 1395 of the General Statutes of 1889, is void.</p> <p>2. Fobeign Eaidboad Comb ant — Right-of-Way—Liability to Landowner. A railroad company organized under the laws of a neighboring state, which is*in possession j ointly with a railroad company organized under the laws of Kansas of a railroad constructed across plaintiff’s land, over which a right-of-way has never been purchased nor condemned, claiming ownership thereof, is liable to the owner of the land for the value of the land taken and the damages to the balance of the traot; and the plaintiff may recover against both railroad companies as for a permanent taking and appropriation of such right-of-way.</p>

Error from Dickinson District Court. REPLEVIN by Thisler against Miller, as sheriff. Judgment for defendant. The plaintiff comes here. The opinion states the facts. 1. The court erred in holding that the matters in issue in this case were res adjudicata by reason of the judgment in the former case before the justice.

Error from Reno District Court. D. H. Baldridge brought this action in the district court of Reno county against The Hutchinson Salt & Stock Yards Company, the Omaha Packing Company, G. A. Walkup, W. Curtis, and Wm.

Error from Norton District Court. Ok the 8tb day of December, 1888, .The Farmers’ Slock-Breeding Assooiation brought its action against Adam Scott, E. W. Norlin, and John McManis, to recover upon the following promissory note: “$395. Lenora, Kas., February 22, 1887. “On or before the 1st day of April, 1888, we, or either of us, promise to pay the Farmers’ Stock-Breeding Association, or order, $395, with interest from date at 10 per cent, per annum. Adam Scott. E. W. NorliN.

Error from, Shawnee District Court. ACTION to recover a commission for the sale of a certain farm. Judgment for plaintiffs, M. E. Fowler & Co. Defendant, Stewart, brings the case to this .court. The facts appear in the opinion.

Error from, Hamilton. District Court. This action was brought on a check, of which the following is a copy: “Richfield, Kas., December 9, 1889. “Bank of Richfield: Pay to S. H. Rodgers, or order, two hundred and fifty dollars, to apply on lumber bill, Morton county courthouse.

Error from Jackson District Court. ON the 24th day of September, 1881, William James and Eudora K. James, his wife, executed a mortgage to Susan A. Green upon a quarter section of land in Jackson county in this state, to secure $2,400 and interest. This was recorded October 31, 1881. On April 17, 1888, James and wife deeded the said land to L. D. Stephenson to secure $1,650, with interest from September 1, 1888. This was recorded the 18th day of May, 1888.

Error from Atchison District Court. Application by The Burlington & Missouri Hirer Railroad Company in Nebrasha for the revocation of letters of administration issued to Fannie Mallory, on the estate of E. B. Mallory, deceased. From an order revoking such letters, said Fannie Mallory, administratrix, brings error.

Error from, Shawnee District Court. Action by Claflin against Case, on a covenant of warranty in a certain deed. Judgment for defendant. Plaintiff brings the case to this court. The opinion herein, filed at the session of the court in June, 1894, contains a sufficient statement of the case.

Error from, Labette District Court. ACTION by Crosby against Wilson, as sheriff of Labette-county. Judgment for defendant. The plaintiff comes to this court. The opinion herein, filed June 9,1894, states the facts.

Error from, Sedgwick District Court. ActioN to recover bank deposit.

Error from Ellsworth District Court. The opinion herein, filed June 9, 1894, states the nature of the action and the material facts.

Error from Barton District, Court. This suit was brought in the Barton county district court by Gerhart Becker against G. H. Hulme, R. C. Bailey, and C. F. Diffenbacker.

Error from, Pratt District Court. Tootle, Hosea & Co., wholesale dealers, on April 29, and 30, 1890, sold and shipped to C. R. Rice & Co., a partnership composed of C. R. Rice and George Schowe, retail dealers, at Preston, Pratt county, goods amounting to nearly $1,200. On July 19, 1890, there was past due on the account $599.26; balance- of account not then due.

Error from Clay District Court. On August 21,1889, Lilla L. Taylor commenced an action against Daniel Ladd and Mary Ladd, his wife, together with Agnes M.… Held: that the plaintiff Lilla L. Taylor has no interest in or title to the land in controversy, and no right to have the same partitioned, and that the action ought to be dismissed as to the defendants Agnes M. and Vinnie G. Ladd without prejudice. Judgment was accordingly entered. Upon these rulings errors are assigned.

Original Proceeding in Quo Warranto. All the material facts of this case are stated in the opinion herein, filed June 9, 1894. Martin & MeNeal, and Frank Foster, for defendant (on motion to strike out two portions of the petition as irrelevant) : 1. If a man has voluntarily borne arms against the government of the United States, or voluntarily aided or abetted in the attempted overthrow of said government, has he not been guilty of the offense of treason?

<p> Error from Wyandotte District Court. </p> <p>Prior to June 12, 1887, John G. Goodwin was .the owner of the site of Malvern Hill, Wyandotte county, in this state, subject to a mortgage in favor of John W. Green, from whom he had purchased the property. Goodwin and his associates laid out the tract of laud into lots, streets, and alleys, and called the same “Malvern Hill.” Lee Settle, on the 12th of June, 1887, entered into an agreement with John G. Goodwin to purchase lots 43, 44, and 45, in Malvern Hill, for $3,275. Settle was to pay for the lots $2,175 in 60 days, and within the same time to construct on the lots five frame dwelling houses, of six rooms, two stories high, with the necessary outbuildings, costing $1,000 each, all to be. completed within 60 days. Settle agreed to furnish Goodwin receipted vouchers for all bills for material and labor incurred in building the houses, and also agreed to protect the property from all liens which might arise by his making the improvements. Settle expected to obtain a loan upon the lots with which to aid him in paying for the same and the improvements. Goodwin was to make a warranty deed to Settle as soon as $2,175 were paid, and he was to take a second mortgage on the lots for the balance of the purchase money.</p> <p>Soon after the execution of this contract, Settle contracted with Thomas A. Kirk and others for building material and labor for the erection of the houses. Settle failed to obtain any loan with which to pay the $2,175 on the lots, and for the material and work for his improvements. The plaintiff and others thereupon filed mechanics’ liens upon the premises, alleging that on the last day of August, 1887, they entered into contracts with Lee Settle to furnish material and perform the labor therein described. The statements in the liens, as filed and sworn to, also show that Lee Settle was the owner of the lots described. Afterward, the Missouri "Valley Lumber Company brought its action in the district court of Wyan-dotte county against Lee Settle, John W. Green, John G. Goodwin, Thomas A. Kirk, and others, to recover for material furnished Lee Settle in improving the lots referred to, and to foreclose its mechanic’s lien thereon.</p> <p>Thomas A. Kirk and others, who had furnished material and labor to improve the lots, filed their answers and cross petitions, alleging their several claims, and praying for personal judgments against Lee Settle, and a foreclosure of the liens which they had filed upon the lots. In that action, on the 5th day of October, 1888, Kirk and the other parties, who had assigned their claims to him, and which were sued on in this action, obtained personal judgments for the full amount of their claims against Settle, and also a decree of the court foreclosing their mechanics’ liens upon the lots, and in the decree both Lee Settle and John G. Goodwin were forever barred and foreclosed from any right, title or interest in the lots, or any part thereof, from and after the sale.</p> <p>On account of the prior liens, which, after paying the costs, nearly exhausted the proceeds derived from the sale of the premises, Kirk and the parties who had assigned their claims to him failed to realize sufficient moneys to pay themselves in full. Kirk collected on his judgment against Settle and the foreclosure of his lien, before he commenced this action, $199.21; A. P. Wasson collected, after his judgment against Settle and the foreclosure of his lien, $5.03; Cole & Scholl collected upon their judgment $57.87; and R. Davis collected on his judgment $20.18. Thereafter, and on the 23d of February, 1889, Thomas A. Kirk commenced his action against John G. Goodwin and others, to recover for the balances due upon the identical claims for material and labor held by him and others against Lee Settle, and upon which judgments were rendered in their favor against Settle on the 5th day of October, 1888. Kirk claimed upon the trial that, while he was making the improvements upon the lots purchased by Settle from Goodwin, Goodwin told him, and sent word to all the other men then engaged on the improvement of the lots, to go ahead and finish the work on the two houses of the five, and the foundation of a third, then begun, and when they were completed he would pay all the bills.</p> <p>After all the evidence, including the former judgments rendered against Lee Settle upon the same claims, was introduced, the trial court instructed the jury to render a verdict for the defendants. Such a verdict was returned, and subsequently judgment was rendered thereon. Kirk excepted, and brings the case here.</p>

Error from Russell Eistriet Court. Action by the Bank against Shafer and another to recover ou a promissory note. Judgment for the plaintiff. The defendants bring the ease to this court. The opinion states the facts.

<p> Error from, Ford District Court. </p> <p>The opinion states the case.</p> <p>Whether this was an arbitration under the common law or tinder our statutes is immaterial in the trial of this cause. It must be readily conceded that Adams had a right to compel Ly brand to pay this indebtedness. Did he have a right by suing Cox upon the bond ? That he did, is well established by the courts. Jesse v. Carter, 28 Ala. 475; Pomeroy y. Gold,. 2 Mete. 500; Huy v. Brown, 12 Wend. 591; Shearer v. Hardy, 22 Pick. 417; Hugg v. Collins, 18 N. J. Law, 294; Mathews v. Mathews, 2 Curtis, 105; Litoh v. Beatty, 23 Ill. 642;' Nothe v. Lowe, 18 id. 437; Shooky v. Glassford, 6 Dana, 9; Thompson v. Childs, 7 Ired. 435; Scearce v. Scearce, 7 Ind. 286. The question then arises, whether Hardesty was by law subrogated to the right of Adams upon the bond? That. he was, is supported by the decisions of this court. Anthony v. Herman, 14 Kas. 495; Floyd v. Ort, 20 id. 162, and cases there cited; Arnold v. Lyman, 17 Mass. 400. These cases are particularly applicable, because Cox, in his statement, over his signature, acknowledged a consideration passed to him.</p>

Error from Sumner District Court. Action by Laura C. Church against the Atchison, Topeka & Santa Fé Railroad Company and the Southern Kansas Railway Company, to recover damages for the obstruction of certain streets. Judgment for plaintiff, and defendants bring error.

<p>1. Insueance Policy — Future Incumbrances — Renewal of Prior Mortgage. Where an insurance policy provides against future incum-brances, the policy may be avoided if a subsequent incumbrance is created, or if the incumbrances existing at the time of the application for the insurance are materially increased by a new or additional debt, but a mere subsequent renewal of a prior lien or mortgage, with accrued interest, is not an increase of such preex- ■ isting indebtedness or the creation of a new or an additional incum- . brance.</p> <p>2. Mobtgage on Realty and Personalty — Severable Contract. Where an insurance policy covers a dwelling house and various classes of personal property, including household furniture, beds, books, etc., describing them separately, and specifies different and separate amounts on the dwelling and on the personal property, as, $1,900 on dwelling, and $600 on furniture, beds, books, etc., such contract is severable, and the execution of a mortgage on the real estate, in violation of a condition of the policy' — against subsequent incum-brances on the property insured, in whole or in part — is no defensa to an action for the loss of the personal property not incumbered,</p>

Error from Rooks District Court. ON December 21, 1887, Frank Borin filed his petition in ■.the district court of Rooks county to recover of Bradley, Wheeler & Co. and the First National Bank of Stockton, in this state, $1,800, for the alleged wrongful and malicious levy of an attachment writ upon property of Borin, to secure and satisfy a debt from Borin to' Bradley, Wheeler & Co. One defense pleaded by Bradley, Wheeler & Co. in that action was a set-off in the sum of…

Error from Allen District Court. Ejectment. Judgment for plaintiff, Pratt. The defendant, Ard, brings the case here. The opinion herein, filed June 9, 1894, states the material facts.

Error from Johnson District Court. This action was instituted by the Alamo Irrigating & Manufacturing Company against David Subbard, as administrator of the estate of George B. Lord,… Held: over and ¡over again, that great latitude should be allowed in cross-examination. See Field v. Davis, 27 Kas. 404; C. B. U. P. Rid. Co. v. Andrews, 30 id. 590; Deford v. Orvis, 42 id. 306, 308, 310; Hamilton v. Miller, 46 id. 489. The court erred in refusing to find the facts as proved.

<p> Original Proceeding in Mandamus. </p> <p>The opinion herein, filed July 6, 1894, states the material facts of the case.</p>

The information in this case charged the defendant, under §38 of the act in relation to crimes and punishments, with a felonious assault with a deadly weapon on George Sims, with intent to maim, and kill said Sims. At the trial the defendant refused to plead, and thereupon a plea of not guilty was entered. A jury was called, and those called as jurors were examined as to their qualifications.

<p>1. Cities — Liquor Traffic, Ordinance to Control. The passage of the prohibitory liquor law by the state legislature does not prevent cities from enacting ordinances providing for the control of the liquor traffic within the limits of such cities.</p> <p>2. Obdinanoe — Surplusage in Title. Where there is only one subject contained in the body of an ordinance, which is clearly expressed in its title, the fact that such title may contain surplusage will not render the ordinance obnoxious to the limitation providing that it shall not oontain more than one subject, which shall be clearly expressed in its title.</p> <p>3. -Valid Ordinance. An ordinance of the oity of Lawrence prohibiting and restricting the liquor traffic examined, and held to be valid.</p>

<p> Appeal from Decatur District Cowt. </p> <p>The opinion states the facts.</p>

Error from Marshall District Court. Action by Thompson and another against Niggley and wife to recover on a note and mortgage. Judgment for the defendants at the February term, 1890. The plaintiffs bring the case here. The opinion states the facts.

Ben. Douglas was convicted of an assault with intent to kill. He appeals. The opinion herein, filed July 6, 1894, states the material facts.

Prosecution for a violation of the prohibitory liquor law. From a conviction and sentence, the defendant, Keys, appeals. The facts appear in the opinion.

Error from Kingman District Court. The opinion herein, filed at the session of the court in July, 1894, states the material facts.

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

Error from Sumner District Court. These were actions brought by Thomas B. Clement, as plaintiff, against W. A. Black, The Wichita & Southwestern Railway, and others, to foreclose mortgages on two tracts of land in Sumner county. The mortgage in the first case was executed by Black on the 24th of February, 1887, to secure a note for $4,000, and that in the other case was executed by the same party on the same day to secure a note for $5,000.

On November 11, 1893, F. D. Waugh, of Arkansas City, Cowley county, filed in the district court of that county his petition, praying judgment against the Stauber &Uhl Building Company, a corporation, for the sum of $1,255.28 upon account. On November 13, 1893, service of summons was made upon the corporation. On the date of the filing of the petition, F. D. Waugh filed in the court his affidavit in garnishment against F. M. Strong and the Home National Bank.

Error from Phillips Eistriet Oowrt. The opinion herein, filed July 6, 1894, states the nature of the action and the material facts.

<p>Banking Cobpobation — Power of President. The president of a banking corporation has the power to employ counsel and manage the litigation of the bank, in the absence of any order of the board of directors depriving him of such power.</p>

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

Chase District Court. Prosecution for grand larceny. Prom a conviction and sentence, the defendant, Hoffman, appeals. The opinion herein, filed July 6, 1894, states the material facts.

Error from Pawnee District Court. This action was instituted by James W. Tufts, who claimed to be the owner of a soda-water fountain and apparatus, against The First National ■ Panic of Larned, to recover damages for an alleged conversion of the property. The answer of the bank was a general denial.

Error from, Cowley Eistrict Court. All the material facts are stated in the opinion. 1. The court erred in instructing that the burden of proving bona fides rested on the plaintiff, and in refusing to instruct that the burden of proving fraud devolved upon-the defendant. See Wait, Fraud. Con., §242; Martin v. Fox, 40 Mo.

Error from Eiokinson District Court. The plaintiff1 in error, who was plaintiff below, brought suit against the defendants to recover the sum of $442.50, as money had and received by the defendants to the plaintiff’s use.

<p>Oase-MAde — Settlement—Notice. By order of the district court, an extension of time to make and serve a case was granted. The order fixed the time for suggesting amendments, and provided for settlement of the case on five days’ notice. The record fails to show any amendments suggested. No notice of the time of settlement was given, and there was no appearance on the part of the defendant. Held, That the petition in error must be dismissed.</p>

<p> Motion for Rehearing. </p> <p>These cases are sufficiently stated in the original opinion, filed at the session of the court in July, 1894, and in the opinion herein, filed October 6, 1894.</p>

Error from Leavenworth District Court. ON the 20th day of August, 1889, John Morbach commenced his action against The Home Mining Company, and in his petition, as his first cause of action, alleged: “That at the time of the happening of the wrong and grievances hereinafter complained of the defendant was, and now is, a corporation duly organized under the laws of the state of Kansas, and that, as such corporation, it was engaged in the work of sinking a coal-mining shaft, in…

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

Error from Ness District Court. The plaintiff brought, this action to recover from the defendants, who are the sheriff and undersheriff of Ness county, certain agricultural implements, which had been attached under process issued against one L. H. Underwood.

Error from Wyandotte Eistriot Court. ActioN by S. M. Lewis against the Orchard Place Land Company and another. July 7, 1890, a verdict in favor of said company was set aside, and a new trial granted, and said company brings error.

Error from Ellsworth District Court. On the 7th day of June, 1889, Kate Fletcher brought her-action against the City of Ellsworth to recover $10,000 damages for injuries by her sustained from falling, in the night of the 9th of November, 1888, into a cellar way or opening, which was located in an alley in Ellsworth, on the west side-of a building known as the “ Masonic temple.” On November 9, 1888, there was a ball or party at the Masonic temple,, and a Mrs. Lincoln was…

Isaac G. Reed was convicted of murder in the second degree. He appeals. The material facts are stated in the opinion herein, filed July 6, 1894.

Error from Shawnee District Court. Iir 1868, one J. A. Schafer became the owner of lots 127, 129, and 131 Van Burén street, in the city of Topeka, Shawnee county, and occupied and used the same with his family as a homestead from the time he purchased said lots until the time of his death, which took place in 1872.

<p> Motion for Rehearing. </p> <p>The facts sufficiently appear in the opinion herein, filed October 6, 1894, and in Hofman v. Demple, 52 Kas. 756, et seq.</p>

Error from Greenwood District Court. James A. Merrifield, an infant of the age of about two years, the son of L. A. and Mary E. Merrifield, on the 8th of December, 1888, fell into a privy vault in the city of Eureka, in Greenwood county, which was situate upon lot 6, in block 25, in the possession of the Eureka Hotel Company. The Merrifields lived on a lot adjoining the one containing the vault.

Error from Atohison District Court. ON the 17th day of May, 1890, Lanphear & Co. commenced their action against William Ketcham, to recover $1,800, on a note of that amount, dated August 14, 1889, payable six months after date. The firm of A. M. Lanphear & Co. consisted of A. M. Lanphear and H. N. Jewett.