Volume 54 — Kansas Reports

Original Proceeding in Habeas Corpus. All the material facts of this case are stated in the opinion herein, filed July 6, 1894. Our contention is that the power sought to be conferred by chapter 149, Laws of 1885, is violative of both the constitu- tion of the state of Kansas and the constitution of the United States, and hence is void.

Error from Ellsworth District Court. On April 2, 1888, Jerome B. Handy commenced his action against The Burrton Land & Town Company and the Ells-worth Loan & Investment Company to recover $1,662.50 upon a promissory note executed to Ruth A. Tarr on the 21st of May, 1887, with interest at 8 per cent, from that date, by the Burrton Land “ Q,ues.

Error from Johnson District Court. Action by Seeley against The Railroad Company to recover damages for bodily injuries. Judgment for the plaintiff. The defendant brings the case to this court. The facts appear in the opinion herein, filed July 6, 1894.

Error from Atchison District Court. The case is sufficiently stated in the opinion herein, filed at the session of the court in July, 1894.

Error fram Allen District Court. On the 31st of December, 1888, C. Van Horn commenced his action against E. A. Barber, as a member of the late firm of Dayton, Barber & Co., to recover $7,300, and interest. Trial at the March term, 1889, before the court without a jury. The court made the following special findings of fact: “1.

Error from Wyandotte District Court. Action by Ferree against Walker and others. Judgment for defendants. The plaintiff brings the case to this court. The opinion contains a sufficient statement of the facts.

At the March term, 1893, of the district court of Marion county, the appellant, John E. McCarty was tried, and convicted of murder in the second degree. He was charged with the murder of A. E. Gross. He admitted the killing, but claimed that the act was justifiable, and done in self-defense. The affair was witnessed by a considerable number of persons who testified in the case.

Original Proceeding in Mandamus. On the 16th day of August, 1894, there was .issued out of this court an alternative writ of mandamus, at the instance of the plaintiff and against the defendants, which stated, among other things, that B. D. Eastman is a citizen of the United States and of the state of Kansas, and a resident of said state of Kansas; that defendants M. A. Householder, W. S. Wait, N. M. Hinshaw, Mary E. Lease and Walter N. Allen are the duly appointed,…

<p> Appeal from, Osborne District Court. </p> <p>Prosecution for robbery. The opinion herein, filed October 6, 1894, states the material facts.</p>

<p>1. Rape, Attempt to Commit — Resistance—Outcry. In a prosecution for an attempt to commit rape, where there is testimony that force was used in the attempt by the defendant, and a determined resistance made by the woman, the fact that no outcry was made will not necessarily defeat the conviction, especially in a caBe where the resistance made was effective in frustrating the attempt.</p> <p>2. Want oe Consent, Must be Real. There must be a real want of consent, and the fact that no outcry was made by the woman, or that she did not mention the matter to others until a long time afterward, are proper considerations for the jury in determining whether her resistance was honest or only a mere pretense.</p> <p>3. Evidence Sustains Conviction. The testimony examined, and held to be sufficient to sustain the conviction.</p>

Error from Shawnee District Court. This action was instituted in the district court of Shawnee county, in the name of Reno lodge No. 99, I. O. O. F., of Hutchinson, and 91 other lodges of Odd Fellows, against the grand lodge of the Independent Order of Odd Fellows of the state of Kansas, J. A. Campbell, grand master, John A. Bright, grand secretary, and Louis C. Stine, grand treasurer.

Error from Cowley District Court. On the 19th of April, 1890, the plaintiff, Mrs. Hilie Stone, filed her petition against the city of Winfield and the Union Street Railway Company, as defendants, to recover $5,000 damages for personal injuries.

Original Proceeding in Mandamus. Action by J. T. Shull against the Board of Commissioners of Gray county and others, for a writ of mandamus to compel defendants to reconvene as a board of canvassers and canvass the full returns as made of the votes east for plaintiff as a .candidate for treasurer of such county at the general election in 1893. The opinion herein was filed October 6, 1894.

<p>Contempt — Fine—Payment under Protest — Appeal, Dismissed. Upon attachment issued by the district court, C. was found to be guilty of contempt of court, and adjudged to pay a fine and costs. Under-protest, he paid the fine and discharged the judgment, stating that he reserved the right to appeal from the judgment, which he subsequently attempted to take. Held, That his protest and reservation are unavailing, and that an appeal from a judgment that has been executed and discharged is not permissible.</p>

Error from Harvey District Court. Action by Congdon against Bryan to recover the value of certain wheat delivered by plaintiff to defendant to be stored in the latter’s public warehouse, and which plaintiff alleged defendant converted. On affidavit by plaintiff that the debt for which the action was brought was fraudulently contracted, the court entered an order for the arrest of defendant.

Petition by S. J. Bryan for a writ of habeas corpus to obtain his release from the custody of the sheriff of Harvey county.

Error from, Clay District Court. On the 22d day of September, 1888, Homer Kennett commenced his action against Peters & Co., Elisha Parker, William Parker, and Charles W. Lord, and in his petition alleged: “ Plaintiff says that he is and was the owner and entitled to the possession of 36 head of steers, one and two years old, of the value of $850; 29 head of hogs, of the value of $260;. 10 cows, of the value of $200; 6 calves, of the value of $70;. and 2 bulls, of the value…

Error from Sedgwiok Court of Common Pleas. Action by the Eumber & Manufacturing Company against D.W. Aaron on a promissory note, in which there was a judgment for plaintiff, and the Trust & Investment Company and James H. Lynch were summoned as garnishees. There were judgments against the garnishees for part only of the amounts claimed by plaintiff to be due defendant, and plaintiff brings error.

Appeal from Doniphan District Court. Prosecution for murder. All the material facts are stated in the opinion herein, filed October 6, 1894.

Error from Atchison District Court. This action was brought on the 23d day of January, 1889,. by Joseph Donohue ¿gainst Louise Donohue, as administratrix with the will annexed of Thomas Donohue, deceased, LouiseDonohue, Catherine McFadden, Jennie Ashe, John J. Donohue, Bridget Donohue, and George Saxton, Salina Ruth Saxton, Alice Saxton, and Thomas Clayton Saxton, minors,, defendants, for a judicial construction of the last will and testament of Thomas Donohue, deceased.

<p>1. Chattel Moetgage — Sufficient Description. A description in a chattel mortgage which gives the age, sex, ownership and location oí a number of cattle is held to be suffic'ent, under the circumstances, to enable third parties to identify those intended to be mortgaged with reasonable certainty, and to charge them with notice of the lien.</p> <p>2. Moetgage, Not Rendered Ineffectual. The fact that they were held in a pasture with similar cattle belonging to others will not render the mortgage ineffectual, where, by inquiries suggested by the instrument itself, the mortgaged cattle can be distinguished from those with which they are held.</p> <p>3. Descbiption, Partly Erroneous. The fact that a part of the property intended to be mortgaged was incorrectly described will not invalidate the mortgage as to that portion which is correctly described and which may be identified with reasonable certainty.</p> <p>4. Special Questions, Court May Submit to Jury. The district court, in the exercise of its inherent power, and without the request of either party, may submit to a jury appropriate special questions that will aid the court in reaching a correct result.</p>

Error from Rooks District Court. Two actions tried together — one by the Phelps & Bigelow Windmill Company against W. H. Barnes and wife, the United States Investment Company, and others, and the -other by the same plaintiff against William Bunn and wife, the United States Investment Company, and others, to foreclose mechanic’s liens. There was a judgment for plaintiff in ■each case, and defendants bring error. The facts appear in the opinion herein, filed October 6, 1894.

<p>Ebavdulent Sale — Knowledge of Purchaser. Where a purchaser obtains a stock of goods of a debtor who is making the sale with the fraudulent intent of delaying and defrauding his creditors, and is a party to the fraud, or has knowledge of facts sufficient to excite the suspicions of a prudent man and put him upon inquiry, he cannot be said to act in good faith.</p>

Error from, Brown District Court. This was an action of ejectment brought by the plaintiff in •error to recover 80 acres of land in Brown county.

<p> Error from Cloud District Court. </p> <p>This was an action of replevin, brought on the 15th of March, 1889, by Frank C. and C. T. Parkhurst against The First National Bank of Clyde, to recover certain personal property, consisting of cattle, horses, and agricultural implements, of the alleged value of $1,476. The petition alleged, inter alia, that plaintiffs were the owners, etc., of the property. Trial had before the court, with a jury, at the April term for 1889. The jury returned a verdict in favor of the plaintiffs and against the defendant, and fixed the value of the property unlawfully taken by defendant at $965. Judgment was rendered in favor of the plaintiffs for the recovery of the property, and, in case return could not be had, that plaintiffs recover from defendant $1,032.50 for the value of the property and interest. The bank filed its motion for a new trial, alleging the various statutory grounds, which was overruled and exceptions taken. The Bank brings the case here.</p>

<p>The opinion herein, on the rehearing, was filed December 8, 1894. The facts are stated in National Bank v. Parkhurst, ante, p.,155.</p>

Man Ray, convicted of selling intoxicating liquors in violation of the prohibitory liquor law, appeals. The material facts appear in the opinion herein, filed October 6, 1894.

The defendant was charged with having murdered Loren E. Warren and was convicted of murder in the second degree. It was shown on the trial that the defendant was a keeper of a gambling room in Dodge City. The deceased, Warren, was a bartender. The two parties had passed the night preceding the tragedy in the defendant’s gambling room. The defendant commenced drinking about four o’clock in the morning, and drank until he became intoxicated.

Error from Kiowa District Court. On the 16th of September, 1890, Leila V. McBride commenced her action against The Chicago, Rock Island & Pacific Railway Company to recover $1,180 and $100 attorney’s fee for damages alleged to have been caused by a fire set out on the 4th day of February of the same year.

Error from, Greenwood District Court. The nature of the action and the material facts appear in the opinion herein, filed November 11, 1893.

John Keefe was convicted of murder in the second degree. He appeals. The opinion herein, filed November 10, 1894, states the material facts.

On the 24th of' April, 1894, there was filed in the office of E. A. Dowell, justice of the peace in and for Kiowa county, a warrant for the arrest of O. W. Myers, the defendant.

Original Proceeding in Habeas Corpus. Petition of Nettie Snook to obtain the custody of her infant daughter from Isaac V. Tissue and his wife. The facts appear in the opinion herein, filed November 10, 1894.

Error from Pottawatomie District Court. Action by John Clark, as administrator of the estate of Elizabeth King, deceased, against M. S. H. King, on two promissory notes. Judgment for defendant on the second note. Plaintiff comes to this court. The opinion states the facts.

<p>1. Intoxicating Liquob — Illegal Sale — Evidence—Verdial. The record examined, and the evidence held sufficient to sustain the verdict of the jury, that the defendant made an unlawful sale of intoxicating liquor, as charged in the first count of the information filed against him.</p> <p>2. Costs —Case, Followed. The case of In re Gilson, 34 Kas. 641, followed.</p>

Dink Looker, whose real name is unknown, was convicted of selling intoxicating liquor contrary to law. He appeals. The material facts appear in the opinion herein, filed November 10, 1894.

Appeal from Dickinson District Court. Samuel Barr was convicted of selling intoxicating liquor contrary to law, and of maintaining a nuisance. He appeals.

Error from, Jewell District Court. The defendant in error, John W. Hubbell, who was plaintiff below, is a dealer in soft coal at Richmond, Mo. About the 1st of August,'1889, he applied to the agent of the St. Joseph, St. Louis & Santa Fé Railroad Company at Richmond for special rates, on coal to Mankato, Kas. Being inormed by the agent that he had no special rate, Hubbell wrote to the general agent, asking for a rate.

Error from, Sedgwick District Court. Wichita, being a city of the first class under the laws of the state in force in the year 1893, paved a portion of Douglas avenue, one of the principal streets in that city, at the cost of $78,000, by making a special assessment against the premises within the paving district. Oscar D. Barnes was a lot owner on the avenue.

Action by Sehweiter against Doran, as- county treasurer, and others, for an injunction to restrain the collection of a tax for street improvements. On a judgment granting the writ, defendants bring error.

Otto Miller was convicted of contempt. He appeals. The facts are stated in the opinion. The appellant contends that the order appointing him receiver is a full protection to him against the proceedings for contempt. The suit in the federal court was commenced in 18.90, or at least it was pending in 1890.

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

On the 7th day of April, 1894, an information was filed in the district court of Rush county, which, omitting caption, verification, and indorsements, was as follows: “I, H. L. Anderson, the undersigned county attorney of said county, in the name and by the authority and on behalf of the state of Kansas, come now here and give the court to understand and be informed, that on the 20th day of February, 1893, in the county of Rush and state of Kansas, one Stub Crane and one J.…

Error from Kingman District Court. Action by Thayer and others to foreclose a mortgage upon certain lands, in which the Wichita & Western Railroad Company and another company were made defendants because of their having previously obtained rights-of-way over the lands by condemnation proceedings. On judgment for plaintiffs, the defendant railroad companies bring error.

Error from Marion District Court. Action by Carter and another against Beebe and another to foreclose a mechanic’s lien. Judgment was rendered for plaintiffs, and defendant Beebe brings error. 1.

Error from Harvey District Court. The opinion states the nature of the action and the material facts. A personal judgment was rendered against the defendant S. W. Shattuck, who brings the case here.

Error from Wyandotte District Court. Action by Patrick Moran against Charles Moran for the possession of a certain dwelling house. Trial before Hon. John B. Scroggs, judge pro tempore. Judgment for plaintiff. The defendant brings the ease here. The opinion states the facts.

Error from Kingman District Court. Action by the Babcock Hardware Company against the Farmers’ & Drovers’ Bank to vacate a judgment. Judgment for defendant, and plaintiff brings error.

Error from Kingman District Court. Action by Freese against Rusk and two others to foreclose a mortgage. Judgment was rendered for the defendants, and plaintiff comes to this court. The opinion states the facts.

On November 28, 1893, there was filed in the district court of Gray county the following amended information, omitting caption, verification, and indorsements: “I, James B. Naylor, the undersigned, county attorney of said Gray county, in the name, by the authority and in behalf of the state of Kansas, come now here and give the court to understand and be informed, that on or about the 2d day of June, 1893, in said county of Gray and state of Kansas one John D. Yeiter was…

Error from Johnson Eistriot Court. Action by Hague against the Railroad Company to recover damages for bodily injuries. Judgment for plaintiff for $300. The defendant comes to this court. The opinion herein, filed November 10, 1894, states the material facts. 1. The court erred in permitting testimony to the effect that on the special train no whistle was sounded at another crossing than the one at which the injury occurred.

Error from Kingman District Court. This was an action brought by the defendants in error, as plaintiffs below, to disSolve a partnership and for an accounting. A referee was appointed, who took the testimony and made the following findings: “ 1.

Error from Clark District Court. This action was tried by the court, without a jury, on October 8, 1890, upon the following agreed statement of facts, the exhibits being omitted : “ That the American Sugar Company is now and for a long time has been a duly organized and existing corporation under and by virtue of the laws of the state of Kansas; that said corporation was organized for the purpose of erecting sugar mills in the state of Kansas, and for the purpose of…

Error from Chase District Court. The opinion states the case. The third subdivision of § 87 of the code provides that if a recovery of money be demanded, the amount thereof shall be stated. Under this, it has been held by this court that to render a judgment for money not demanded in the prayer was error. Green v. Dunn, 5 Kas. 254; Shepard v. Pratt, 16 id. 209.

Error from Brown District Court. Austin W. Hoyt brough suit in the district court of Brown county against G. S. Dengler to recover the amount of a promissory note for $225, which it was alleged was due for the rent of farming lands, and obtained an attachment at the commencement of the action.

Action by The State, on the relation of R. T. Herrick, county attorney, against L. B. Pottenger, to enjoin the maintenance of a nuisance. Judgment was rendered for plaintiff, and defendant brings error.

Error from Pawnee District Cov/rt. On May 3, 1886, A. H. Holden & Co. obtained a judgment for $245, “on an open account for goods sold and delivered,” against S. D. Fitzgerald, before a justice of the peace in Pawnee county. On May 14, 1886, Fitzgerald executed and filed with the justice a bond signed by himself, J. P. Worrell and T. McCarthy attempting to appeal the case thereby. This was approved by the justice on the same day.

Error from Franklin District Court. William Hackett brought suit against the Missouri Pacific Railway Company, before a justice of the peace of Franklin county to recover damages for injuries sustained by a team of horses and a wagon while running away on Main street, in Ottawa. The justice rendered judgment for the plaintiff.

<p> Error from Leavenworth District Court. </p> <p>.Action by James L. Byers and others against Leavenworth Lodge No. 2, I. 0. O. F., and others. Plaintiffs bring error.</p>

<p>1. Mobtgage — What Included in Foreclosure — Bight to Use Party Wall, Where the owner of a lot, desiring to erect a building of certain dimensions thereon, enters into a written agreement with the owner of the adjoining lot, who has a three-story brick building already erected upon his lot, to use the east wall of such building for the joists of his proposed building, and as a party wall, and, in accordance with such agreement, constructs a two-story brick building upon his own lot, extending the joists thereof into the east wall of the three-story brick building adjoining, and at the time of such written agreement between the adjoining lot owners, the three-story brick building and the lot upon which-it stands are heavily mortgaged, and subsequently the mortgage is foreclosed, the adjoining lot owners being parties defendant in the action, and being duly served with summons, and by the foreclosure being barred of all the title, right and interest in and to the mortgaged property from and after the sale thereof, the decree of foreclosure and the issuance of a sheriff’s deed thereon gives the purchaser all the title and interest of the defendants to the property; and such purchaser at the sheriff’s sale becomes the sole owner of the lot upon which the three-story briok building stands, including the party wall and so much of the joists as were put into the east wall by the adjoining lot owner.</p> <p>2. Adjoining Ownebs — Mutual Bights and Duties. The general principle is, that every owner of a lot, building or other real estate has absolute dominion over his own property, but the right of an owner of a lot or building to take down or change any foundation, wall, or other part thereof, without being answerable for the consequent injury to his neighbor’s house or building, is subject to the qualification that he must exercise due care and skill, and that he will be liable in damages, if the injury to his neighbor is occasioned by the negligent and unskillful manner in which the work is performed.</p> <p>3. Cboss-Petition in Eebob — Time of Filing. The filing of a cross-petition attached to a transcript or case-made previously filed in the supreme court to reverse or modify the judgment or final order of the trial court is the commencement of a proceeding in the court at the instance of the party filing the same; and such oross-petition must be filed in the supreme court within one year after the rendition of the judgment or the making of the order complained of, unless the party is under disability.</p>

Error from Miami District Court. Action by J. P. Hiner, county treasurer, against the County Board, for salary. Judgment for plaintiff. The defendant brings the case here. The opinion states the facts.

Error from Barber District Court. The amended petition in this case shows, in substance, that the plaintiff is the widow of Jeremiah H. Zeiler, deceased, who was employed as a brakeman by the Atchison, Topeka & Santa Fé Railroad Company ; that on the 7th day of April, 1889, he was injured at Woodward, in the Indian Territory, by having his right leg and foot run over and crushed; that the defendant, in connection with its railroad, maintained a hospital system, and had in…

<p>1. Raieboad, Crossing Another--Final Decision. In a proceeding to condemn a crossing for one railroad over another, under ohapter 184 of the Laws of 1887, the decision and award of the commissioners are final, unless an appeal is taken within the prescribed time.</p> <p>2. Commissioners — Authority, When Ended. When a proper application is made in writing, and a hearing is had thereon after due notice to the interested parties, and the commissioners determine that there is a necessity for a crossing, the place where it shall be made, and the manner of such crossing, as well as the compensation to be awarded, and the terms upon which it shall be made, their authority in the matter is at an end.</p> <p>8. Case, Attempt to Reopen — Injunction. Where an attempt is made to reopen such a decision after the expiration of more than four months, and after one of the parties, relying upon the conclusive character of the decision, has expended a large sum of money, and where it appears that the attempt to reopen and rehear will injuriously affect the crossing company, it is entitled to the remedy of injunction to prevent such reopening of the case, or any interference with the rights which it acquired under the decision.</p> <p>4. Res Judicata — Full Hearing. Where a ruling is made refusing a temporary injunction in a case where some of the necessary parties are absent, the principle of res adjudicata will not apply to prevent a full hearing upon the merits, either before the same or some other competent tribunal.</p> <p>5. Disobetion oe Couet, No Abuse of. Where a defendant, in its cross-petition, asks for a temporary order to enjoin'the performance of an act that has aleady been restrained by an order of the same court in another action between the same parties, and which is still in force, the refusal of the additional order under the cross-petition cannot be regarded as an abuse of discretion.</p>

Error from Shawnee District Court. On May 25,1890, Page & Greenfield recovered a judgment against the Union Pacific Town-Site Company for $1,922.31, on an account for lumber and supplies alleged to have been furnished by them to the Union Pacific Town-Site Company. The account, commencing May 15, 1887, and ending August 26, 1887, was for $1,614.17, with interest.

<p>Cause — Rehearing. It is ordered that the motion for a rehearing be allowed, and that the judgment of reversal heretofore entered be vacated and set aside.</p>

Original Proceeding in Quo Warranto. Petition, filed in this court January 21, 1892, wherein the plaintiff prayed judgment declaring the attempted organization of Garfield county illegal and void, and ousting each and all of the several defendants herein from further exercising or attempting to exercise the functions of the various offices which they were then attempting and assuming to hold, and for the dissolution of said county as a body corporate, etc. The said…

Error from Hashell District Court. On the 2d of March, 1894, in the district court of Finney county, a verdict was rendered in favor of the Bank of Santa Fé against the Haskell County Bank et al. for $7,000; but the proceedings were delayed by a motion for a new. trial until the 12th day of March, 1894, when the court rendered judgment on the verdict in favor of the Bank of Santa Fé, and on that day a transcript of the judgment was sent and filed in the office of the clerk…

<p> Error from Wyandotte District Court. </p> <p>Beplevin by Varner against Boioling. The opinion herein, filed December 8, 1894, contains a sufficient statement of the case.</p>

<p> Error from Sedgwick District Court. </p> <p>The facts sufficiently appear in the opinion herein, filed December 8, 1894.</p>

Error from Oshorne District Court. Action by the Farmers’ State Bank of Alton against the Pennsylvania Investment Company. There was a judgment for defendant, and plaintiff brings error. The opinion states the facts.

Error from Cowley District Covert. The plaintiffs, who are the next of kin to Myrtle G. Weber, deceased, brought this action to recover the damages suffered by them in the death of Myrtle G. Weber, caused, as they allege, by the wrongful act and neglect of the railroad company.

Error from, Franklin District Court. On the 28th of February, 1889, Amos B. Clark brought his action against R. E. Fisher and Jennie Fisher to recover $350, with interest from the 2d of May, 1887, on the covenant against incumbrances set out in a deed executed the 1st of April, 1887, by the defendants to him.

Error from Douglas District Court. Action to recover for the death of Charles W. Brown, who was killed in a wreck on the Union Pacific railway, near the junction, at Lawrence, of the Leavenworth branch with the main line. The action is brought by Thomas J. Sternbergh, as administrator, for the benefit of Charles F. Brown, who was the son and only heir of Charles W. Brown.

<p> Original Proceeding in Mandamus. </p> <p>The opinion herein, filed December 8, 1894, states the material facts.</p>

Error from Cloud District Court. On March 14, 1889, the First National Bank of Clyde recovered, before a justice of the peace of Cloud county, a judgment against George L. Parkhurst, for $240.66 debt, and $13.45 costs, the judgment bearing interest. An execution was issued thereon and returned unsatisfied. Affidavit for garnishment, under § 155 of the justices’ act, was filed, and garnishee summons was issued to Howard Hillis, which was duly served on him.

Error from Nemaha District Court. Action by Settle & Keith against The Nemaha Coal and Mining Company and others. There was a judgment for plaintiffs, and defendants come to this court. The opinion herein, filed December 8, 1894, states the facts.

Error from Douglas District Court. The plaintiff was employed as a switchman in the yard of the defendant company at Cherry Vale. While so employed, he was injured by having his arm run over and crushed. This action was brought to recover damages therefor.

Error from Cowley District Court. Prior to and on the 9th of August, 1888, James Hollingsworth, residing in Chicago, 111., was the owner of a farm, in Cowley county, in this state, consisting of 716 acres. On that date, Horace Speed, a lawyer, of Oklahoma, purchased the farm for $13,000, paying a part in cash, and giving his notes to James Hollingsworth for $5,000, the balance of the purchase money, secured by a mortgage on the farm.

Error from Crawford District Court. ■ Action by The Travelers’ Insurance Company and others against Georgia P. Wallace, on promissory notes and to foreclose mortgages. Judgment for plaintiffs, and defendant brings error. The facts sufficiently appear in the opinion herein, filed December 8, 1894.

Error from Cowley District Court. This action was brought by the Western Lumber Company against the Douglass Sugar Company and various lien holders, to foreclose a lien on the sugar factory built by the sugar company. The case was brought in Butler county, and afterward removed to Cowley county, because the district judge had been employed as counsel in matters connected with the case.

Original Proceeding in Mandamus. On the 20fch of August, 1894, Lewis A. Riley filed his application in this court, duly supported by affidavit, for a writ of mandamus to compel a levy on the taxable property of the township of Garfield, of Finney county, sufficient in amount to pay the matured and maturing interest coupons of certain refunding bonds of Garfield county owned by him, and also a levy to create a sinking fund for the payment of the principal of the bonds.

An information was filed in the district court of Shawnee county charging R. S. Osborn with libel, of which the following is a copy: “In the name and by the authority of the state of Kansas, I, H. C. Safford, county attorney in and for the county of Shawnee, in the state of Kansas, who prosecute for and on behalf of said state, in the district court of said county, sitting in and for the county of Shawnee, come now here and give the court to understand and be informed, that…

Original Proceeding in Habeas Corpus. Petition filed in this court November 19,1894, by Nancy E. Freeman (formerly Nancy E. Bennett), praying that a writ of habeas corpus issue to Harry V. S. Bennett and J. H. Harris, etc.; and thereupon said writ was duly issued.

Original Proceeding in Habeas Corpus. Petition filed in this court August 17, 1894. The petitioner alleged that he was unlawfully restrained of his liberty, by being confined in the jail of Shawnee county by one D. N. Burdge, sheriff of said county, etc.

<p>Inbobmaxion — Warrant—Trial, When. Where an information is filed while a term of the district court is in session, a warrant issued thereon during the term is returnable forthwith; and if the defendant is in custody at the term at which the information is filed, such information shall be tried at that term, unless continued for cause.</p>

Original Proceeding in Mandamus. Petition filed in this court February 7, 1893, wherein the relator, J. D. Sherriok, states, among other things, that he is, and has been for more than a year last past, regularly engaged in business as a druggist at Lincoln Centre, in the county of Lincoln and state of Kansas; that he now has, and has had during all the time aforesaid, a permit to sell intoxicating liquors for all lawful purposes; and that, on the 1st day of February, 1893,…

Error from Pawnee District Court. The petition in this case was filed February 23, 1894.

Error from, E Ik District Court. The petition in this case was filed in this court on July 20, 1893. Therein the plaintiff in error, among other things, says: “Upon May 3, 1893, in the district court of Elk county, Kansas, J. H. Cox recovered a judgment against this plaintiff in error in the sum of $623, and costs. The title of the case and all of the facts and proceedings connected therewith are shown by ‘Exhibit A,’ hereto attached, and made a part hereof.

<p>Pees and Sadaeies, Regulation of — Void Statute. Chapter 95, Laws of 1893, entitled “An act regulating the fees and salaries and prescribing certain duties of the county officers of Cherokee and Crawford counties, Kansas, and providing penalties for violation of the provisions of this act,” is unconstitutional and void.</p>

The facts appear in the opinion herein, filed January 5, 1895. 1. The legislature in 1868 enacted what we call § 205 of the criminal code: “It shall be a good cause of challenge to a juror, that he has formed or expressed an opinion on the issue or any material fact to be tried.” Our constitution and code, § 205, extend privileges to the the defendant. The code could not abridge them.

Appeal from, Lyon District Court. A. B. Treadwell, convicted of burglary and larceny, appeals. The facts appear in the opinion herein, filed January 5. 1895.

George A. Mitchell, convicted of an assault with intent to commit a rape, appeals. The material facts appear in the opinion.

Original Proceeding in Habeas Corpus. On the 7th day of July, 1892, the county attorney of Barber county commenced an action against the board of county commissioners of that county, of which Daniel L. Pierce was chairman, to enjoin the board from purchasing certain bridges in the county, and from issuing bonds or scrip in payment therefor. On the same day a temporary injunction was granted by the district court, which was personally served by the sheriff upon Pierce.

Error from Bourbon District Court. Action by Arma E. Wyatt and Augustus Wyatt against John Olendening, and several other heirs of Joanna Clendening, deceased, to determine the interests of the several parties in a tract of land, and for a partition of the same.

Error from Nemaha District Court. Action by Benfer against Dennis, as sheriff of Nemaba county. The defendant brings here for review a judgment for plaintiff. The opinion states the facts.

Error from Sedgvñch Eistriot Court. This action was brought by Jewett & Langworthy against Rosa Werner, before a justice of the peace in and for the city of Wichita, on the 15th day of July, 1889. The plaintiffs claimed in their bill of particulars the sum of $271.15, for services rendered as attorneys for the defendant, attaching to their bill of particulars an itemized statement of their account for such services.

Error from Miami District Court. This is a continuation of the litigation between these parties which was before this court in 1890, and which is reported in 43 Kas. 518.

Error from, Phillips District Court. Action by Aultman, Miller & Co. against George W. Stinson, on an agreement to pay the promissory note of another. From a judgment in favor of plaintiffs defendant brings error. The facts appear in the opinion.

Error from Lyon District Court, This was an action brought by The Ka/nsas Educational Association of the Methodist Episcopal Church against D. A. Stahl,, as county treasurer, and others, to restrain the collection of certain taxes on certain premises in Lyon county, on the ground that the lands were exempt from taxation, under the charter of the Kansas Educational Association, § 6 of which reads as follows: “That all the property or funds, real, personal, or mixed, that may…

Error from Sedgwick District Court. Action by Henry A. Todd, as administrator of the estate of William H. Todd, deceased, against The Atchison, Topeka & Santa Fé Railroad Company and the Wichita & Western Railway Company, to recover damages for negligently killing William H. Todd, while he was sitting under a freight car in the yards of the railroad company in Wichita.

Error from Miami Eistriot Court. On the 8th of February, 1890, Sarah J. Spitler, as guardian of Benjamin Spitler, her husband (a lunatic), and for herself, brought this action in the district court ot Miami county against the New England Loan and Trust Company and numerous other defendants, to cancel various deeds, mortgages, leases and contracts affecting the title to certain lands in Miami county, and to quiet the title to said lands in the plaintiff.

Error froftb Finney District Court. Prior to the 27th of December, 1889, R. A. Hopper was engaged in the retail grocery business at Garden City, in this state. He had a stock of goods worth about $1,000. He owed over $1,300, partly due and partly not due, his purchases have been made upon 30, 60 and 90 days’ time. His stock included some goods bought from Long Bros., and more from other firms to which he was indebted. He owned no other personal property.

Error from Rice District Court. Action by J. 0. Stow & Co. against R. J. Shay and Joe H. Borders, to recover upon an undertaking in an attachment proceeding. From a judgment in favor of plaintiffs, defendants bring error. The facts appear in the opinion herein, filed January 5, 1895. This case and the bond sued on, is very similar to the one sued on in the case of Washer v. Campbell, 40 Kas. 398.

Error from Crawford District Court. Action by Reid against Elerick to recover $3,000, which plaintiff alleged that defendant obtained from him by fraud. Judgment for plaintiff. The defendant comes here. The material' facts are stated in the opinion herein, filed January 5, 1895.

Error from Kingman District Court. This action was brought on January 4, 1890, by JR. Ii. Lockwood and J. W. Glendenin against Jesse W. Bowdle, Margaret Bowdle, the Denver, Memphis & Atlantia Railway Company, H. H. Woolsey, Addie S. Thornburg, on a promissory note, and to foreclose a mortgage securing the note, both note and mortgage having been executed and delivered to plaintiffs by Jesse Bowdle and Margaret Bowdle, his wife.

Error from Russell District Court. Action by Fred. Wolf against the Railway Company to recover damages for expulsion from a railroad train.

Error from Reno District Court. Action by Cragun against McClelland, as sheriff of King-man county, to enjoin him from levying an execution. The defendant brings here for review a judgment in favor of the plaintiff. The opinion herein, filed January 5, 1895, states the material facts.

<p> Error from Miami District Court. </p> <p>All the material facts of this ease appear in the opinion herein, filed January 5, 1895.</p>

Error from Dickinson District Court. Action by Decker against Burton and another. From an order dismissing the action as to Brady, defendant Burton brings error. The facts are stated in the opinion herein, filed January 5, 1895. The judgment in favor of Brady against the Deckers should have been allowed as an offset or courterclaim against any amount that Mrs. Decker might have been entitled to recover in this case.

Error from, Phillips District Court. Action by Sallie L. Yerlces against C. M. McGuire and J. V. Farwell & Co. Judgment for plaintiff. Garnishment proceedings under the judgment were instituted by plaintiff. From an order discharging the garnishees, upon their answers showing an indebtedness to J. V. Farwell & Co., plaintiff brings error.

Error from Chautauqua District Court. Action by Binns against Adams and another. Plaintiff brings here for review a judgment in favor of defendants. A sufficient statement of the case is contained in the opinion herein, filed January 5, 1895.

<p> Error from Shawnee District Court. </p> <p>Action by Augusta C. Austin against F. W. Giles. From a judgment in favor of plaintiff, defendant brings error.</p>

Error from Cowley District Court. On and prior to November 6, 1888, Mrs. Alice Agner was the owner of lot 6, block 2, Gilstrap’s addition to Arkansas City, in this state. It was worth about $900, and her husband was authorized to sell it at that price. The husband, R. H. Agner, on November 6, 1888, made a wager or bet with Wm. J. Pollock on the result of the presidential election. On that day he had his wife execute a deed to Wm.

Error from Cloud District Court. Action to foreclose a mortgage. Of an order setting aside the foreclosure sale, Edwin Fowler, the purchaser, complains, and brings the case here. The facts appear in the opinion.

<p> Appeal from, Wabaunsee District C'owrt. </p> <p>The opinion herein, filed February 9, 1895, states the material facts.</p>

Error from Phillips District Court. The plaintiff in error brought this case against the defendant, as county treasurer of Phillips county, to restrain the collection of the taxes for the year 1892, on certain lands owned by the plaintiff in said county, alleging that the taxes had been paid and a receipt therefor duly issued, but that the defendant had advertised the lands for sale for such taxes, and intended to sell them on the first Tuesday of September, 1893.

Error from Wallace District Court. On the 11th day of December, 1893, S. H. H. Clark, Oliver W. Mink, E. Ellery Anderson, J. W. Doane and F. R. Coudert brought this action, as receivers of the Union Pacific Railway Company, to restrain the board of county commissioners and the treasurer of Wallace county from collecting a special or extra levy of 10 mills on the dollar’s valuation of the Union Pacific property in that county, and to prevent the board from issuing warrants…

Error from JRice District Court. The nature of the action and the material facts appear in the opinion herein, filed February 9,1895. Trial by the court below, at the January term, 1890, Hon. Ansel R. Clark, judge pro tern., presiding — a jury being waived. Judgment for plaintiffs, M. Burns & Co., and against the cross-petitioners, A. B. Martin & Co., who bring the case here.

PJrror from Doniphan District Court. The nature of the action and the material facts appear in the opinion herein, filed at the session of the court in February, 1895. Trial by the court below, at the January term, 1890, Hon. James Falloon, judge pro tern., presiding — a jury being waived. Judgment for plaintiff, Barr, and against defendant, Pullman, who brings the case to this court.

<p> Error from Reno District Court. </p> <p>I. P. Weyerhaeuser and others, under the firm name of F. McCullam & Co., brought suit in the district court of Reno county against Archie Fraim, George A. Woodard, et al., alleging in their petition that the defendant Archie Fraim entered into contract with defendant George A. Woodard to furnish certain materials and perform certain labor in the erection of a three-story building on certain lots in Hutchinson belonging to said Woodard, and that the plaintiffs, under a subcontract with said Fraim, furnished lumber and other materials for said building, and claiming a lien for the balance due. The Halstead Lumber Company, which was made a party defendant, answered also, claiming a lien on the same property for building material furnished by it for the same building under a subcontract with said Fraim. The case was tried by the court, and the following special findings of fact were made:</p> <p>“1. That on the-day of August, 1887, the defendant George A. Woodard, who was then, and still is, the owner of lots Nos. 1, 3 and 5 on First Avenue east, in the city of Hutchinson, in the county of Reno, in the state of Kansas, entered into a written contract with the defendant Archie Fraim, whereby it was agreed that said Fraim should do all the carpenter work, and furnish all the lumber and materials for the same, for the erection of a three-story brick building on the above-described premises, and said Woodard was to pay said Fraim for said work and materials the sum of $8,211.30.</p> <p>“2. That on the 10th day of September, 1887, the plaintiffs made a verbal contract to furnish the lumber and materials required by said Fraim to comply with his said contract with said Woodard, as aforesaid, and under said contract did furnish the materials set forth in plaintiffs’ petition, and said materials were incorporated into said building on said premises, and that there remains due and unpaid to plaintiffs a balance for said materials the sum of $2,174.89 debt, and interest, $271.86, in the total sum of $2,446.75, from the said Archie Fraim to plaintiffs herein.</p> <p>“ 3. That the said Archie Fraim completed his said contract on the 20th day of April, 1888.</p> <p>“4. That the last work was done on said building on the 25th day of June, 1888, which was a job of painting, and that said building was not entirely completed until said 25th day of June, 1888.</p> <p>“5. That on the 23d day of August, 1888, the plaintiffs filed their lien statement, duly verified, in the office of the clerk of the district court of said county of Reno, and on said day delivered a copy thereof to the defendant George A. Woodard.</p> <p>“ 6. That on the 8th day of February, 1888, the defendant Halstead Lumber Company, a corporation, entered into a contract with said Archie Fraim, whereby it was contracted and agreed that said Halstead Lumber Company should furnish certain material to be used in the construction of said building; that said materials set forth in said defendants’ cross-petition were used and incorporated into said building, and that there is due and owing from the said Archie Fraim to said Halstead Lumber Company for said materials the sum of $169 debt, and $20.25 interest, making the total sum of $189.25.</p> <p>“7. That on the 5th day of July, 1888, the defendant Hal-stead Lumber Company filed its lien statement, in due form, duly verified, in the office of the district court of said county of Reno, and on said day delivered a copy thereof to the defendant George A. Woodard.”</p> <p>As conclusions of law the court found, that the plaintiffs were entitled to a judgment against Fraim for $2,446.75 and costs, and that the Halstead Lumber Company should recover judgment against Fraim for $189.25 and costs, but denied them a lien on the property. Plaintiffs bring the case to this court.</p>

Error from Norton District Court. Action by Frederick W. Warner, as administrator, against Ernest Broquet and others, upon a promissory note, and to foreclose a mortgage securing the same. From a judgment for defendants, plaintiff brings error. The material facts appear in Broquet v. Warner, 43 Kas. 48. This case was before this court on a demurrer to plaintiff’s petition, and the judgment of the lower court was reversed. Broquet v. Warner, 43 Kas. 48.

Error from Wilson District Court. Action by Uhl against Small and others to recover possession of property. From a judgment for possession by plaintiff, upon payment to defendants of the amount paid by them as taxes on the property, plaintiff brings error. The facts appear in the opinion herein, filed February 9, 1895.

Error from Douglas District Court. The city of Eudora was incorporated by an act of the territorial legislature of the territory of Kansas on the 28th day of February, 1859, and in the corporate limits were embraced all of section 8, except 40 acres taken off the west side, and 200 acres off the south and east side of section 5, township 13, and range 21. This territory was laid off in blocks and lots, with public streets and alleys.

Error from Phillips District Court. Action by Judith DaJdn against D. D. Bemis and others for foreclosure of a mortgage. The National Bank of St. Joseph, Mo., intervened. From a judgment against the bank, at the May term, 1890, and in favor of defendant Bemis, the bank brings error.

Error from Pawnee District Court. This action was brought by Mary M. Woods on á policy of insurance issued by the defendant on the life of Charles H. Woods, her husband, who died at Hutchinson, on March 15, 1888.

Error from McPherson District Court. On April 13, 1887, Stephen Gilpen filed his amended petition, complaining of E. Leksell, substantially as follows: That on November 11, 1885, he (Gilpen) entered into a written agreement with one P. J. Johnson, agreeing to sell certain lands described therein, Johnson agreeing to reserve or pledge to Gilpen as collateral security one-half of the crops raised on said land, or the proceeds of the sale of one-half of the crops, for the…

Error from Rooks District Court. Action by Thomas Frahm to obtain a personal judgment against Jasper Parks and Mary Parks upon a debt of $1,000, and to foreclose a mortgage given to secure that debt. At the trial, special findings of fact and conclusions of law were made by the court, as follows: 4‘ 1.

Appeal from Harvey District Court. George W. Rogers, convicted of burglary, appeals. The opinion herein, filed February 9, 1895, contains a sufficient statement of the facts.

Error from, Wyandotte Court of Common Pleas. Action by Simmons and others against The City of Argentine and others, to enjoin the levy and collection of a certain tax. Judgment for plaintiffs. The defendants bring the case here. The opinion states the material facts.

Original Proceeding in Habeas Corpus. On the 15th day of December, 1894, the county attorney of Wyandotte county filed an information in the court of common pleas of that county charging “that said Joseph Perry Smith did, in the county of Wyandotte, state of Kansas, and on or about the 21st day of June, 1894, engage in an unlawful calling, to wit, the calling of managing and operating a lottery, and the selling of lottery tickets, and did then and there establish a lottery…

Error from Pottawatomie District Court. Action by Smith against Benton. The plaintiff brings here for review an order overruling a motion for a new trial.

Error from Jefferson District Court. Action by Goodman against Wilson and others to recover certain land. Judgment for defendants. Plaintiff brings the case here. The material facts appear in the opinion herein, filed March 9, 1895.

The defendant, William Davenport, was arrested and brought before the police court of the city of Ottawa, charged with having permitted gambling to be carried on in a store kept by him in Ottawa, and with having offered for sale and sold lottery tickets. He was found guilty by the police judge,■ and fined $5 on each of the two counts in the information.

Appeal from Saline District Court. Prosecution for rape. The material facts appear in The State v. Frazier, 53 Kas. 87, et seq., and in the opinion herein, filed March 9, 1895.

On the 15th of March, 1894, Eva L. Johnston commenced her action against the defendant, William L. Johnston, and alleged, among other things, that “The parties to this action are husband and wife; that they were married at Diamondville, in the state of Pennsylvania, on July 2, 1890; that the plaintiff at the present time is a resident of Shawnee county, Kansas; that she has resided in said county and state for more than one year last past; and plaintiff further says, that…

Error from Shawnee District Court. Two cases were brought by the board of county commissioners of Shawnee county, Kansas, one against the German Fire Insurance Company, and the other against the Oakland Home Insurance Company, to recover upon two policies insuring a building situate upon the fair ground in Shawnee county, and known as a “grand stand.” It was alleged that the building was wholly destroyed by fire on September 28, 1888, and that, although proofs of loss had…

Error from Osage District Court. Action by Fisher and another against Frankhouser, as sheriff, to recover certain corn. Judgment for plaintiffs. Defendant comes to this court. The opinion states the facts.

Error from Crawford District Court. Action by Shawgo against Pleasant View Township to recover a balance which he claimed to be due him for work on a certain bridge. Judgment for plaintiff. The defendant comes here. The opinion states the facts.

Error from Osage District Court. This was an action commenced before a justice of the peace of Osage county on February 15, 1890, by J. J. Neally, against N. Frankhouser, who was then sheriff of Osage county, by filing a bill of particulars (omitting title and caption) as follows: “The plaintiff alleges that the defendant is indebted to the plaintiff in the sum of $200 upon account, to wit: That on about the 1st day of January, 1890, N. Frankhouser, by his deputy, C.…

Error from Washington District Court. Replevin by Emanuel Rothschild & Bros, against Evans, as sheriff, and others. Judgment for plaintiffs. The defendants bring the case here. The opinion states the facts.

Error from Rawlins District Court. Action by the Oberlm Loan, Trust and Banking Co. against W. H. Spears, in which a judgment was rendered for plaintiff. There was a decree giving such company a lien on land for the amount of its judgment prior to a judgment held by H. H. Obert and others against said Spears. Obert and others bring error.

Error from Meno District Court. Action by Brehm against the Kansas Midland Mailway' Company to recover certain damages. Judgment for plaintiff. The defendant brings the case here. The opinion herein, filed March 9, 1895, states the material facts. 1. An action cannot be maintained by Brehm upon any of these claims, for the reason that the same are not assignable. Such a claim was not assignable at common law, and is not assignable under §26 of the civil code.

Original Proceeding in Habeas Corpus. On the 12th day of September, 1894, there was filed in the police court in the city of Topeka a duly verified complaint against M. E. Lowe, charging that, on the 11th day of September, 1894, and prior thereto, he did then and there unlawfully engage in the business of a city scavenger, contrary to the ordinances of the city of Topeka, and especially in violation of ordinance No. 1718, being an ordinance entitled “An ordinance providing…

Error from Doniphcm District Court. Action of ejectment, brought on January 24, 1889, by Alberta E. Abbey and others against the German Reformed Church and others, to recover certain real estate. Second trial at the July term, 1890, and judgment for plaintiffs. The defendants bring the case to this court.

Error from Jefferson District Court. On the 13th day of October, 1889, Willard R. Douglass commenced his action against Archibald McKeever, under § 595 of the civil code, to recover the possession of the northeast quarter of section 14, township 9, range 17, in Jefferson county, and for the rents and profits thereof since March 1, 1880.

Error from Finney District Court. The Chicago Lumber Company oe Kansas, a corporation, brought suit against William M. Tomlinson, Harry C. Lucas, executor of the will of Thomas Lucas, deceased, Silas T. Lucas, and others, heirs of said Thomas Lucas, and divers other parties having claims against the property, to recover a judgment against said Tomlinson and the heirs of said Lucas, and foreclose a mechanic’s lien on certain lots in Garden City.

Error from, Lyon District Court. This action was brought November 14, 1889, by W. A. Randolph against 0. R. Oakley to recover $500 ■ damages for the wrongful conversion of a mare called the “ Quaker Girl.” On June 3, 1889, the case was tried by the court with a jury, and a verdict for $400 returned in favor of Randolph. Subsequently, judgment was rendered upon the verdict, with costs against Oakley and in favor of Randolph. Oakley brings the case here.

Error from Atchison District Court. This action was brought on the 5th day of January, 1894, by The. Chicago, Burlington & Quincy Railroad Company against The Board of County Commissioners of the Coimty of Atchison, and J. C. MeCully, as treasurer of Atchison county, to enjoin 75 per cent, of its taxes, other than state taxes, as levied in Atchison county for the year 1893. The defendants filed an answer containing a general denial.

Error from Leavenworth District Court. The nature of the action and the material facts are stated in the opinion herein, filed March 9, 1895.