Volume 56 — Kansas Reports

Error from Jackson District Coitrt. On January 27, 1859, at Findlay, Ohio, Daniel Small married Rebecca Cone, the present defendant in error, as Rebecca Small. He was the father of five children by a former marriage, namely, Eli D., Daniel J., John D., William B., and Susan, now Susan Mc-Kenney; the oldest, Eli D., being about 17, and the youngest, the daughter, about 31 years of age ; and his home was at Wilmington, Will county, Illinois.

Error from Miami District Court. Action to foreclose mortgages and to determine' the priority of liens on a tract of land situate in the counties of Anderson, Franklin, and Miami. The cause was tried by the court without a jury, and the following findings of fact and conclusions of law were made and returned : “findings of fact. “1. On and prior to March 19, 1889, the plaintiff, Wm.

Frank J. Earnest, convicted of murder in the first degree, appeals. All the material facts are stated in the opinion herein, filed November 9, 1895.

Error from Bourbon District Court. On October 10, 1880, William Judd married Mary Toler. On October 7, 1881, Jennie L. Judd was born, being the only issue of the marriage. The husband and wife separated in March, 1882, she returning to her father’s house, with the child, and not long afterward she obtained a decree of divorce from him by reason of his fault, and she was allowed alimony in the sum of $1,200, which was paii.

Error from, Atchison District Court. Action by The First National Bank of Atchison against The Hyde Park Investment Company and others. Trial before Hon. B. P. Waggener, judge pro tern. Judgment was rendered against the defendant company. It brings error against the bank, which has also filed a cross-petition against defendant King. The facts appear in the opinion, filed November 9, 1895.

Thomas Davis was convicted of obtaining money by false pretenses. He appeals. The opinion herein, filed November 9, 1895, states the material facts.

At May term, 1895, of the district court of Ness county the defendant was convicted of the crime of rape upon the person of Matilda Hirschler, a female under the age of 18 years, and he was sentenced to the penitentiary for a term of five years.

An information was filed in the district court of Shawnee county, in which it was charged that “ George Gordon, at the county of Shawnee, in the state of Kansas aforesaid, and within the jurisdiction of this court, on the 30th day of August, 1894, unlawfully, fraudulently, falsely, knowingly, designedly and feloniously devising and intending to cheat and defraud one Henry Trenier, did then and there unlawfully, falsely, fraudulently, knowingly, designedly and feloniously…

Information filed against William J. Newbold, register of deeds of Sumner county, charging him with having neglected and refused duly to file a statement of the fees collected by him as such officer. The information was quashed and the defendant discharged. The State appeals. The opinion states the facts.

<p>New Trial — Defective Verdict. It is not error to overrule a motion for a new trial based upon the single ground that the verdict does not contain the verb “find,” but reads, “We, the jury-the defendant guilty as charged in the information.”</p>

<p>1. Bank — Receiving Deposits When Insolvent. Section 16 of chapter 43 of the Laws of 1891, which provides that no bank shall receive deposits when it is insolvent, and prescribes a punishment for a violation of that provision by any officer or managing agent of such bank, is a substitute for and operates as a repeal of chapter 48 of the Laws of 1879.</p> <p>2. Statute, not Operative against National Banks, The provisions of chapter 43 of the Laws of 1891 have no application to national banks, and the penalties therein prescribed are not operative as against officers of national banks.</p>

<p>1. Taxation — Bower of Legislature. The legislature has no power to provide for raising revenue to defray expenses of the state for more than two years at one time; and so much of paragraph 6383 of the General Statutes of 1889 as attempted to provide for raising a fund after the expiration of the two succeeding fiscal years is void.</p> <p>2. Taxes, Mode of Levying. The legislature may levy taxes by requiring a gross sum to be collected from the taxable property of the state, as well as by fixing a rate per cent.</p> <p>3. State University, Tax for. Section 2 of chapter 226 of the Laws of 1895 is valid as a provision for raising the sum of 8100,000 per year for the support of the state university for the years ending June 30, 1896, and 1897.</p>

On May 1, 1895, a complaint under oath, in positive form, was filed before George M. Hughes, a justice of the peace of Wyandotte county, charging the defendant with, murder in the first degree by shooting with a pistol and killing James Clune, on April 30, 1895, at and within said county. A warrant was issued upon said complaint, and the defendant was arrested, and brought before said justice of the peace.

<p> Appeal from Shawnee District Court. . </p> <p>Amos Brubaker was convicted of grand larceny. 'He appeals. The opinion states the case.</p>

Error from Jefferson District Court. Action of ejectment by Willard R. Douglass against George M. Noble and others. Plaintiff recovered judgment, and defendants bring the case to this court. All the material facts are stated in the opinion herein, filed November 9, 1895.

Error from Jefferson District Court. Action of ejectment by Willard R. Douglass and others against M. P. Hillyer, as administrator, and others. Plaintiffs had judgment, and defendants bring error. The opinion, filed November 9, 1895, states the facts.

Error from Wyandotte District Court. Action by Nicholas McAlpine against Helen C. Reicheneker, personally and as administratrix of the estate of Nelson A. Reicheneker, deceased, to recover $4,000, -which he paid to her upon a real-estate transaction during the year 1887.

Error from Johnson District Court. Action by Patrick B. Lannigan against The Atchison, Topeka.& Santa Fe Railroad Company to recover damages for personal injuries. Plaintiff recovered judgment and defendant brings the case to this court. All the material facts are stated in the opinion herein, filed November 9, 1895.

Original Proceeding in Mandamus. Action by the City of Emporia against W. A. Randolph, judge of the fifth judicial district, for mandamus. The opinion, filed November 9, 1895, states the case.

<p>Replevin against Oeeicbb — Refusal to Deliver Property. Where a warrant is issued against A., on a charge against him of maintaining a nuisance at a place therein described, in violation of the prohibitory liquor law, and the officer having such warrant arrests A., and seizes the property at the place named, as being used for the purpose of maintaining a nuisance, B. may maintain an action of replevin before another court of competent jurisdiction against the officer for the purpose of determining his right to the property, and the officer, having possession of the property, is liable to commitment as for a contempt, if he refuses to deliver the property in obedience to the order of the court before which the action of replevin is pending.</p>

<p> Original Proceeding in Habeas Corpus. </p> <p>■ Application by Charles Paschal for a writ of habeas corpus. The case is stated in the opinion.</p>

Osso Terreso, convicted of an assault with a dangerous weapon, appeals. The facts are stated in the opinion, filed November 9, 1895.

Error from Sedgwick Court of Common Pleas. Action to set aside conveyances of certain real estate. The plaintiff bank had judgment, and defendant Roser brings the case here. The opinion, filed November 9, 1895, states the facts.

Error from Dickinson District Court. Action by-Alice B. Packard against Augustus Packard for divorce. From an order overruling a motion to correct a journal entry plaintiff brings error. The opinion states the case.

Error from Crawford District Court. Action by 0. J. Phelps, as administrator of the estate of David Wilson, deceased, against the city of Erie, to recover damages for personal injuries. Judgment for plaintiff for $5,000. Defendant brings the case to this court. The opinion', filed November 9, 1895, states the facts.

Error from Sheridan District Court. Two cases — one an action by the state, on the relation of Selden G. Hopkins, county attorney of Sheridan county, against J. B. McPherson; the' other action brought in Riley county by Laura L. Dunn against Frank W. Dunn. In both cases judgments were rendered for plaintiffs, and the defendants brought error to the court of appeals, which certified them to the supreme court.

Error from Chase District Court. The plaintiff in error (defendant below) was chartered as a corporation June 29,1885, its purposes being the purchase and sale of real estate for the benefit of its members, the purchase, location and laying out of town sites, and the sale and conveyance of the same in lots and subdivisions or otherwise, and the erection of buildings and other improvements thereon, and such acts as might be deemed necessary and desirable to the proper and…

<p> Error from Atchison District Court. </p> <p>Action brought by Anna Hughan, Katie Grimes, and Nellie Grimes, on May 3, 1890, against B. F. Hudson, as executor of the last will and testament of Susan Grimes, deceased, Mary Ellen Bryning, Eliza Jane Graham, Howard Grimes, Robert Bruce Grimes, Malcolm Grimes, and Alice Grimes Smith, to set aside the last will and testament of said Susan Grimes, deceased. Susan Grimes died February 6, 1890, and the will, which was executed by her on September 16, 1887, is as follows :</p> <p> “State of Kansas, Atchison county, ss.: </p> <p>“I, Susan Grimes, of the city of Atchison, county of Atchison, and state of Kansas, of full age, and, through the blessing of God, of sound mind and memory and good bodily health, being mindful of the uncertainty of life and the certainty of death, do make and publish this my last will and testament, hereby revoking all other wills or codicils whatsoever heretofore made by me.</p> <p>“With respect to my worldly estate, both real and personal, after the payment of my just debts, I give, devise, bequeath and dispose of it in the manner and proportions following, to wit:</p> <p>“First. I give and devise unto my daughters, Eliza Jane Graham, and Alice Grimes Smith, in fee simple absolute, my homestead, where I now reside, comprising all of lots numbered one (1), two (2), three (3), and four (4), in block numbered eight (8), in that part of the city of Atchison, county of Atchison, and state of Kansas, commonly known and described as ‘South Atchison,’ together with the. improvements thereon and appurtenances thereunto belonging. I also give and bequeath to,them, my said daughters, Eliza and Alice, all of my household goods and furniture, of’which I may die possessed, for their sole use and benefit as long as they or either of them shall occupy said homestead.</p> <p>“Second. I direct that the residue and remainder of my estate, both real and personal, wherever situ- - ated, shall be sold, either at private or public sale, to the, best advantage by my executor, who, out of the proceeds of such sale, shall first pay to each of my daughters, Eliza Jane Graham and Alice Grimes Smith, the sum of four thousand dollars ($4,000) in addition to the property hereinbefore devised to them ; and to each of my sons, Howard Grimes, Robert Bruce Grimes, and Malcolm Grimes, the sum of four thousand dollars ($4,000) in lawful money of the United States, which several sums of money I give and bequeath to them, respectively, forever.</p> <p>“Third. I give and bequeath to Katie Grimes and Nellie Grimes, daughters of my son John T. Grimes, now deceased, each the sum of two hundred and fifty dollars-($250) in lawful money of the United States, which shall be in full of their share in my estate.</p> <p>Fourth. The balance of the proceeds of such sale as shall be left after paying the legacies and bequests above provided for, and all other of my property whatsoever, I give, devise and bequeath forever to my six (6) children now living, whose names' are as follows : Mary Ellen Bryning, Eliza Jane, Graham, and Alice Grimes Smith, daughters, and Howard Grimes, Robert Bruce Grimes, and Malcolm Grimes, . sons, to be divided equally among them, share and share alike.</p> <p>“Fifth. I further direct that the amount mentioned, together with the interest provided for, in any promissory note I may hold at my death against any of my children, and which shall then be owing to me or my estate, shall be deducted from his or her share, respectively, and the note canceled.</p> <p>“Sixth. I hereby appoint B. F. Hudson, of the city of Atchison, county of Atchison, and state aforesaid, the sole executor of this my last will and testament.</p> <p>“ In witness whereof, I, Susan (Rimes,- have to this, .my last will and testament, subscribed my name, this 1(5tli day of September, A. 11. 1887.</p> <p>Susan Grimes.”</p> <p>“ Subscribed by the testator in the presence of each of us, and at the same time declared by her to us to be her last will and testament.</p> <p>Helen L. Hudson, of Atchison city,-Kan.</p> <p>John N. Shoemaker, of Atchison city, Kan.</p> <p>Belle Shoemaker, of Atchison city, Kan.”</p> <p>The codefendants of the executor were the only living children of Susan Grimes, at the time of her death. John T. Grimes was a son of-the testatrix, ■who died October 30, 1870, and left surviving him his wife, Anna, who subsequently intermarried with one Hugh an, and two children, Katie and Nellie Grimes. The plaintiffs below alleged that Eliza Jane Graham and Alice Grimes Smith had lived with their mother for many years, and until the time of her death, when she was of the age of 79 years; that since about October, 1883, Susan Grimes had been debilitated and infirm in body and mind, had had frequent attacks of apoplexy, and had suffered paralysis, which injured her mind, and by reason of such injury and impairment she was unable to make a valid disposition of her property on and long prior to September 16,1887 ; that she was under the control and influence of the two daughters who lived with her, to such extent that she neither had nor exercised any will, judgment or control of her own affairs, and was incapable of exercising any will or judgment when she signed the will in controversy ; that the will was procured to be made and signed in order to defeat the plaintiffs out of their proper share of the estate of Susan Grimes, which was then of the full value of $70,000.</p> <p>The averments of incapacity and undue influence were denied. At the trial a jury was called, and two special questions were submitted to them, as follows :</p> <p>"1. Was the deceased, Susan Grimes, on the 16th day of September, 1887, at the time the instrument propounded as the last will and testament purports to have been made, of sound mind and memory?</p> <p>'“2. Was the said instrument made and signed by reason of the undue influence on the part of the defendants Eliza Jane Graham and Alice Grimes Smith, or either of them ? ’ ’</p> <p>The answer to the first question was "No,” and to the second "Yes.” Motions were made to set aside the answers to the special questions and for a new trial, which were overruled, and the court thereupon rendered judgment setting aside the will. The defendants below, except Mary Ellen Bryning, allege error. .</p>

<p>1. Contract — Construction—Ambiguities. Where a contract is concluded between the parties by letters, if, in a letter written by one of them, there be any ambiguity or contradiction in terms, doubts as to its meaning will be resolved against the writer.</p> <p>2. Sale oe Goods — Inferior Quality — Remedies of Buyer. Where merchandise is sold under an executory written contract, and the goods delivered are inferior in quality to those contracted to be sold, the buyer is not restricted in his remedy to a return of the goods and rescission of the contract, but may retain the inferior articles delivered, and, in an action for the purchase-price, may recoup the damages he has sustained by reason of the breach of the seller’s contract.</p>

Error from Marion District Court. Action by M. A. Carter, as administratrix of the estate of S. F. Carter, against John S. Christie. Judgment for -plaintiff; defendant brings the case here. All the material facts appear in the opinion, filed December 7, 1895.

Error from Cherokee District Court. Action by J. H. Boice and others against Alice H. Aldrich and others. Judgment for plaintiffs, and defendants bring the case here. The facts sufficiently appear in the opinion.

Error from Kingman .District Court. •The plaintiff in error brought suit in the district court of Kingman county against the defendant in error to recover damages for an alleged- trespass on the southwest quarter of section 27, township 30, range 7, by entering thereon and constructing a railroad across it.

Error from Marion District Court. Action by George W. Ayers against The Atchison, Topeka & Santa Fe Railroad Company. Plaintiff had judgment, and defendant comes to this court. The opinion, filed December 7, 1895, states the nature of the action and the material facts.

Error from Johnson District Court. Action by M. G. Miller against Mary E. Gorsuch and others to recover on a promissory note and-to foreclose a mortgage given to secure its payment. Judgment was rendered for plaintiff. Defendants Mary J. Hughes and Benjamin Reeder bring the case to this court. All the material facts are stated in the opinion herein, filed December 7, 1895.

Error from Shawnee District Court. This action was brought by H. C. Root, as plaintiff, to compel The Topeka Water-Supply Company to convey to him the undivided one-half of lot 5, of section 30, township 11, range 16, in Shawnee county. This lot was purchased by Hugo Felitz in 1877, and was occupied by himself and family as a residence from that time until the trial of this action.

John Stockwell was convicted of violating an ordinance of the city of Burlington, and appealed to this court. The opinion herein, filed December 7, 1895, contains a sufficient statement of the case.

Error from Doniphan District Court. Action by M. M. Muncie against The Chicago, Kansas & Nebraska Railway Company to recover damages for personal injuries. Judgment was rendered for plaintiff. The defendant brings the case here. The opinion states the facts.

Error from Jefferson District Court. This was an action prosecuted in the district court of Jefferson county on a bond and mortgage purporting to have been executed by J. N. Insley, as guardian of Violet, Ford and Delbert Metzger, and as administrator of the estate of Eli W. Metzger, deceased, to George W. Hunt, the plaintiff in error.

<p> Appeal from Reno District Court. </p> <p>W. A. Woodrow, convicted of forgery, appeals. The opinion, filed December 7, 1895, contains a sufficient statement of the case.</p>

Error from Butler District Court. Action by Lucinda Wells against The Atcliison, Topeka. & Santa Fe Railroad Company. Judgment for plaintiff, and defendant brings the case to this court. The opinion herein, filed December 7,1895, states the-material facts.

<p>1. Injury to Employee — Evidence. In an action against a railway company to recover damages for injuries sustained by a person while employed as a section-hand, at work on the track, by a passing train, it is proper to show what the duties of the foremen are with x’efei'ence to keeping the time and waxming the workmen . of the approach of trains.</p> <p>2. Error in Sustaining Demurrer to Evidence. Where, in such an action, there is evidence tending to show negligence on the part of the company, and where it does not clearly appear that the plaintiff was guilty of contributory negligence, it is error to sustain a demurrer to the testimony.</p>

Original Proceeding in Quo Warranto. On March 3,1893, the defendant was duly appointed by the governor to the office of commissioner of elections of the city of Topeka, in accordance with that clause of section 2, chapter 206, Laws of 1889, (¶715, Gen. Stat. 1889,) which reads as follows : “The governor of the state shall appoint for each city of the first class to which the provisions of this act apply, immediately upon the going into effect of this act, a commissioner of…

<p>1. Criminal Trial — Absence of Defendant. In an information it was charged that the defendant did “unlawfully, feloniously, and carnally know and forcibly ravish” a female under the age of 18 years. The defendant, assuming that two offenses were charged in the information, moved the court to require the state to elect upon which offense it would stand for trial. At the time of the filing of the motion to elect and of the argument thereon the defendant was not actually present in court. The motion was overruled and a conviction followed. Held, That the absence of the defendant during the filing and argument of the motion is not fatal to the judgment of conviction.</p> <p>2. Evidence, not in Record — Presumption, In the absence of the evidence from the record, it must be assumed that it was sufficient to sustain the verdict of the jury, and that it warranted the giving of an instruction upon an offense included within that charge in the information.</p> <p>3. Rape — Assault with Intent to Commit — Definition. In in-, strueting the jury as to an assault upon the prosecutrix with an intent to commit a rape, the court stated that if the defendant “ caught hold of her, and used force or violence and threats, with intent to carnally know her, then, in that case, you should find him guilty of an assault with intent to commit a rape, and in that case it would make no difference that he might have failed to accomplish his purpose. ’ ’ Under the circumstances of the case, held, not to be erroneous.</p>

<p>1. Liberty oe the Press — Valid Statute. Chapter 161 of the Laws of 1891, entitled “An act to prohibit the editing, publishing, circulating, disseminating and selling of certain classes of' newspapers and other publications,” is constitutional and valid.</p> <p>2. -Immoral Publications. ■ In order that a publication may fall within the terms of said act as being “devoted largely to the publication of scandals, lechery, assignation, intrigues between men and women, and immoral conduct of persons,” it is not necessary that more than half the columns, or any other definite number, be filled with such items. It is sufficient if such items are a prominent feature, and especially characteristic of the publication.</p>

<p> Original Proceeding in Mandamtos. </p> <p>The opinion states the case.</p>

Error from Thomas District Court. Action on a promissory note by The First National Bank of Steyens Point, Wisconsin, against C. H. Martin. There was a judgment for defendant, and plaintiff brings the case here. The material facts appear in the opinion, filed December 7, 1895.

Error from Pottaivatomie District Court. Ejectment by J. B. Pierce against Thomas Downey and others. A. H. Clark and A. B. Pomeroy were made defendants. Judgment for plaintiff. Prom an order granting defendants a new trial plaintiff brings error. The opinion states the case.

<p>Contract eor Purchase oe City Lots — Authority of Purchaser —Mechanics’ Liens — Validity as against Vendor. The owner of city lots, desiring to secure the erection of houses on a part of the same, agreed with another for the erection of two houses according to certain plans and specifications at a limited cost, and that, upon the completion of the houses and after they had been freed from all liens, the owner would convey 'the lots to the purchaser and take back a mortgage upon the lots so improved for the price of the lots, and also for money furnished by the owner toward the cost of building the houses. The purchaser procured materials and labor, and the houses were built according to the plans and specifications prescribed by the owner, but the purchaser never paid the parties who furnished, the materials and labor, and the owner of the lots has never paid anyone for the buildings placed.on his lots. The lots were never conveyed to the purchaser, and whatever rights he had under his purchase were relinquished to the owner about the time of the completion of the houses. PLeld, In an action to foreclose the liens claimed against the property, that under the contract of purchase the purchaser was authorized to contract for materials and labor with which to build the houses, and that the laborers and material-men were entitled to a lien against the property and all of the legal and equitable interest of the owner therein.</p>

Error from, Butler District Court. Action by Cora E. Johnston, by her next friend, Calvin R. Johnston, against The Atchison, Topeka & Santa Fe Railroad Company to recover damages for bodily injuries. All the essential facts are stated in the opinion herein, filed January 11, 1896.

Error from Rice District Court. Action by Tbe Guaranty Savings Bank against Thomas A. Butler and. others to recover on notes and to foreclose a mortgage. There was a decree of foreclosure, and to that part thereof disaffirming the personal liability of the mortgagors for a deficiency plaintiff brings error. The case is stated in the opinion, filed January 11, 1896.

Action in the district court of Franklin county by Martha M. Perkins and others against Elizabeth Bunn and another to recover on a certain promissory note and coupons. Plaintiffs complain of the judgment rendered, and bring the case here.

Error from Leavenworth District Court. Action brought by the Board of County Commissioners of Leavenworth county against John W. Spratley, formerly treasurer of that county, to recover interest collected by him upon funds which he had theretofore placed in the public depositories, and which it was alleged he illegally retains and refuses to deliver to his successor.

Error from Nemaha District Court. Proceedings by G. F. Cawood and Charles Cawood, partners as Cawood Bros., against Theodore Wolfley, as administrator of the estate of N. Morris, deceased, to enforce a claim against said estate. Plaintiffs had been clerks in the store of the deceased. On September 22, 1891, judgment was rendered for plaintiffs for $2,745.04, and graded as fifth class. They complain of the judgment rendered, and bring it here for review.

<p> Appeal from Saline District Court. </p> <p>Tins opinion states the case.</p>

Appeal from Rice District Court. A. E. Wellman was discharged on a complaint for drunkenness, and the city appeals. The opinion states the facts.

Error from Wyandotte Court of Common Pleas. The plaintiff in error brought suit in the court of common pleas of Wyandotte county against John Parker, John C. Snyder, L. D. Robertson, the Commercial Bank of Kansas City, Mo., and a number of other persons, and in his petition alleged that the defendants Snyder and Robertson were partners in the real-estate business in Kansas City, Mo., and were indebted to defendants F. M. Darnall and the Commercial Bank, and that to secure…

‘ Error from Sedgwich District Court. Action by Daniel A. Fry, by his guardian, and others, against Samuel Fry and others, to recover certain land. Judgment for plaintiffs. Defendants bring the case here. The opinion, filed January 11, 1896, states the facts.

Error from Wyandotte District Court. Action by David E. Gurney against John Steffens. From an order postponing the hearing of a motion the plaintiff brings error. The opinion, filed January 11, 1896, states'the case.

Error from Saline District Court. Action by William G. Nixon against Cydon Lodge No. 5, Knights- of Pythias, of Salina, and others, to foreclose a mortgage. There was a judgment of foreclosure, and from that part thereof declaring the mortH gage subject to mechanics’ liens plaintiff brings error. The material facts are fully stated in the opinion herein, filed January 11, 1896.

<p>Judgment bob Costs ■ — no 'Appeal, When. No appeal lies from an order of the district court made in a proceeding to prevent the commission of an offense, under article 2 of the code of criminal procedure, adjudging the costs of the proceeding against the defendant.</p>

Error from Johnson District Court. On October 28, 1890, the defendant in error was in the service of the plaintiff in error as head brakeman on a freight-train on its line of railroad between Kansas City, Mo., and Fort Madison, Iowa.

Error from Douglas District Court. Action by M. R. Mudge against S. E. Hull, as sheriff of Wabaunsee county, and others. Judgment was rendered for the defendants, and plaintiff brings the case here. The opinion, filed January 11, 1896, states the facts.

Error from Lyon District Court. The plaintiff in error brought this action as the widow of Charles McDermott, deceased, alleging that lie was employed as a brakeman by the defendant company, and that he was killed on the 22d of July, 1890, through the negligence of the defendant’s servants.

Error from Douglas District Court. Action by Eddie Mitchell by John C. Mitchell, as his next friend, against The Union Pacific Railway Company, to recover damages for ejection from a train. There was a judgment for plaintiff, and defendant brings error. The following facts are either undisputed or found by the jury: The plaintiff below was a boy 14 years old. He had started from Olathe to go to Colorado Springs, where his father was.

Error from Doniphan District Court. Action by Hester A. Williams, administratrix of John S. Williams, deceased, against The Chicago, Rock Island & Pacific Railway Company to recover damages alleged to have resulted from his death by the wrongful act of said company. Defendant brings here for review the judgment rendered for plaintiff. The opinion herein, filed January 11, 1896, contains a sufficient statement of the case.

Error from Franklin District Court. The plaintiff in error brought this action to recover the value of a stock of merchandise, which he alleges belonged to him, and was taken by the defendant from his possession.

Error from Rice District Court. Action by Fayette Vincent against The Atchison, Topeka & Santa Fe Railroad Company to recover damages for bodily injuries. Plaintiff had judgment, ■which the defendant brings here for reversal. The opinion, filed January 11, 1896, states the material facts.

Error from Labette District Court. At May term, 1891, the defendant in error recovered a judgment against the receivers of The Missouri, Kansas & Texas Railway Company for $4,500 on account of personal injuries sustained in the yards at Parsons on January 8, 1891, resulting in the loss of his left hand, which was amputated above the wrist joint. Pie was on that day engaged as a helper, following a switch-engine at woi’k at and near Johnson avenue.

Error from Lyon District Court. Action by The Kansas National Bank of Topeka and others against M. R. Mudge. Judgment for plaintiffs. Defendant brings the case here. The opinion, filed January 11, 1896, contains a sufficient statement of the facts.

Error from Decatur District Court. Action by The Schuyler County Bank, of Lancaster, Mo., against Moses T. Bradbury. Judgment for defendant. Plaintiff comes to this court. The opinion, filed January 11, 1896, states the case.

<p>1. Habeas Corpus — Sufficiency of Peturn. It is not necessary that the return to the writ of habeas corpus shall contain a denial of the averments of the application for the writ, nor anything more than is prescribed by section 668 of the civil codé; and where a return is made in compliance with the code, and the petitioner desires to controvert the return or allege any new matter showing the restraint to be illegal, he may do so by an appropriate pleading, and thereby an issue as to the facts may be raised.</p> <p>2. Telephone Company — City License Tax. Without proof of the privileges enjoyed and the burdens borne by a telephone company in a city of the first class, or of the expenditures, indebtedness and necessities of the city, it cannot be said, as a matter of law, that a license tax against a company of $12 per annum for each business ’phone, and of 810 per annum for each residence ’phone used by the company within the city, is excessive, prohibitive, or oppressive.</p>

•- The defendant was convicted in tlie district court of Harvey county of burglary in the second degree, the crime being committed on the night of March 23, 1893, by breaking into a building occupied as the court-house of said county with intent to set fire to, burn and destroy the books and records of said county. After sentence he appealed to this court, where the judgment was reversed because of the admission of incompetent testimony.

Original Proceeding in Quo Warranto. These two cases were tried and submitted together. The first is an action in the nature of quo warranto, brought by E. IT. Held: at which there were present 39 senators and 125 members of the house. The plaintiff, E. H. Snow, received the vote of one senator and of 100 representatives. He was declared elected for the tenn beginning July 1, 1891.

Error from Atchison District Court. On July 17,1858, L. R. Staudenmayer, sr., a single man and a resident of Atchison, Kan., executed and delivered to William C. Courtney a mortgage on the southeast i of section 26, township 5, range 20, in Atchison county, to secure four promissory notes for $500 each, payable to the order of said William C. Courtney at the Bank of Charleston, in Charleston, S. C., the last of the same being due October 1, 1859.

<p> Error from Atchison District Court. </p> <p>This is a part of the litigation, which was before ■ the court in Courtney v. Staudenmayer, and the facts out of which it arose are largely set forth in that case, to which reference is made (ante, p. 392). It was originally an action of partition between R. B. Drury, Charles J. Drury, and Robert McCrie, as plaintiffs, and L. R. Staudenmayer, sr., L. R. Staudenmayer, jr., and three tenants,'as defendants, and was instituted on July 8, 1887.</p> <p>The plaintiffs claimed to be the owners of an undivided one-half of the land, and that the Staudenmayers owned the other undivided one-half of the same. Maria L. Courtney became a party to the action, and set up a mortgage executed by L. R. Staudenmayer, sr., to William C. Courtney on July 17, 1858, and asked for a foreclosure of the same. The plaintiffs, as well as L. R. Staudenmayer, sr., averred in appropriate pleadings that the mortgage debt had been paid, and that the mortgage was not a lien upon the land. On March 27, 1890, a trial of the cause was begun before Hon. Robert M. Eaton, district judge; but it had not proceeded far before the plaintiffs asked and obtained leave to file an amended and supplemental petition, which caused a continuance of that branch of the case until the following term. A trial of the issue with respect to the validity and payment of the mortgage was allowed to proceed as between Maria L. Courtney, executrix, and her codefendants, the Staudenmayers, and the court found and adjudged that the mortgage, debt had been fully paid and discharged, and that the mortgage constituted no lien upon the land. Upon a review, that judgment has been affirmed. (Courtney v. Staudenmayer, supra.)</p> <p>The amended and supplemental petition filed by the plaintiffs alleged the purchase of the land from L. R. Staudenmayer, sr., the existence of the mortgage thereon executed by L. R. Staudenmayer, sr., to William C. Courtney, on July 17, 1858, and that L. R. Staudenmayer, sr., at the time of the sale of the land to Drury, represented that the Courtney mortgage had been fully paid and satisfied, and should have been so entered of record, but from oversight it had not been done. It was further averred that R. B. Drury, believing the representations to be true, purchased the interest of L. R. Staudenmayer, sr., in the property for $15,300 and made a payment of $2,500 upon the same. For the unpaid purchase-money R. B. Drury and his wife executed promissory notes, secured by a mortgage upon the same property, and subsequently R. B. Drury conveyed to C. J. Drury and Robert McCrie each an undivided one-third interest in the real estate purchased from L. R. Staudenmayer, sr., and each in turn assumed one-third of the mortgage indebtedness due from R. B. Drury and wife to L. R. Staudenmayer, sr. It was alleged that C. J. Drury and Robert McCrie purchased the land relying upon the representation that the Courtney mortgage debt had been paid and discharged, and the plaintiffs alleged that they had purchased an interest in the property with a view of subdividing it into small parcels and selling the same for a profit. They further averred, that they had promptly instituted the proceeding in partition, but that it had been delayed by the claim upon the Courtney mortgage, which appeared to be in full force and effect as a lien upon the land. They alleged that they had made a demand upon L. R. Staudenmayer, sr., that he should satisfy the claim or cancel the contract of sale and the accompanying papers, but that he still persisted in claiming that the mortgage had not been for many years a lien or incumbrance upon his interest in the land conveyed by him to R. B. Drury, and he promised speedily to have the controversy relating thereto settled and determined. They averred that he had failed to take any steps to settle the controversy, that it had become further involved by a claim of an attorney’s lien thereon, and the property had been greatly depreciated in value during the delay, so that the land was not available for the purpose for which it was purchased, and, therefore, that they were entitled to rescind the contract. To that end they tendered deeds duly executed releasing their interest in the real estate, and asked the court to decree the contract of purchase canceled and annulled, and the notes and mortgage executed by R. B. Drury and wife to be adjudged null and void, and surrendered into court; and further, they asked to' recover a judgment against L. R. Staudenmayer, sr., for the sum of $2,500, with interest thereon.</p> <p>L. R. Staudenmayer, sr., answered, setting forth the notes and mortgage executed by R. B. Drury and wife, asking for a personal judgment against them in the sum of $12,800, and for a judgment against Charles J. Drury and Robert McCrie, each for one-third of the mortgage debt, it being alleged that each had assumed the payment of one-third of the same, and for a decree of foreclosure. He also asked that Anna M. Drury should be made a party to the action, in order that his rights might be made complete. In a supplemental answer filed by L. R. Staudenmayer, sr., on June 24, 1891, he alleged that on November 29, 1890, it had been duly determined in that court that the Courtney mortgage had been fully paid, satisfied, and discharged, and that the judgment was then in full force and effect.</p> <p>Replies were filed and the issues closed. A trial was had before the court,without a jury. Conclusions of fact and of law were filed on July 11, 1891, in which the court found that the Courtney mortgage was duly executed and recorded, and was still unsatisfied on the record; that no payment upon the notes secured thereby had ever been made, except three small interest payments made in 1860, which were indorsed on the notes. It was also found that, at the time of the purchase, L. R. Staudenmayer, sr., represented to R. B. Drury that the Courtney mortgage had been paid; that he had paid it, and that he had a receipt or something to show payment among his papers. It was further found, that by reason of the misrepresentations and misconduct of L. R. Staudenmayer, sr., the contract of purchase should be rescinded, and it was so adjudged. The plaintiffs were required to convey the property to L. R. Staudenmayer, sr., and the notes and mortgage executed by R. B. Drury and Anna M. Drury were annulled and canceled; and the court further gave judgment to the plaintiffs against both of the Staudenmayers for the sum of $2,965.79, that being the amount of the payment made by R. B. Drury to L. R. Staudenmayer, sr.,'together with the interest thereon. Staudenmayer complained of these rulings, and, after having brought the case to this court for review, he died, and since that time the proceedings have been revived in the name of B. C. Wood, administrator of the estate of the deceased. The opinion herein was filed February 8, 1896.</p>

Error from Atchison District Court. On the application of R. B. Drury and two others, executions were issued against L. R. Staudenmayer, sr., and another. To a judgment confirming a sale thereunder, B. 0. Wood, as administrator of defendant Staudenmayer, since deceased, brings error. The opinion was filed February 8, 1896.

Error from Atchison District Court. This action was commenced by Jonathan Pel ton to recover damages for injuries received while employed by the railroad company as a section man in unloading ties from a box car, and piling them a little way from the track. It appears that four or five men were in the car, taking the ties out, and six men were on the ground, picking them up, and placing them on the piles.

<p>Writ — Service by Publication — Misjoinder of Claims. It is irregular and erroneous to join claims only personal in their nature with others wherein constructive service is allowable, and then proceed to obtain such service as to the several incongruous claims, and where a motion to set aside such service is seasonably made it should be sustained.</p>

Error from Crawford District Court. Action by Samuel K. Stoop, as administrator of the estate of George W. Croxton, deceased, against The Cherokee and Pittsburg Coal and Mining Company. Judgment was rendered for defendant, and, from an order granting a new trial, it brings error. The material facts are stated in the opinion, filed February 8, 1896.

Error from Rice District Court. In an action to foreclose a mortgage, after sale and motion for confirmation, The Iona Savings Bank made an increased bid for the property. From an order confirming the sale the savings bank brings error, making J. A. Blair and others, purchasers, defendants. The facts are sufficiently stated in the opinion herein, filed February 8, 1896.

Error from Ford District Court. On November 28, 1890, Alice E. Butler commenced the original action to recover damages for the death of her husband, Elmer E. Butler, a switchman in the defendant’s yards at Dodge City, on August 5, 1890.

<p>Insolvent Debtor — Assignment — Preference of Creditors. Where an insolvent debtor executes to two of his creditors chattel mortgages substantially at the same time that he executes a general assignment for the benefit of creditors, so that the execution of all constitutes a single transaction, no preference can be rightfully claimed under the mortgages.</p>

Error from Cloud District Court. Ti-iis action was brought by The First National Bank of Concordia against Edward Marshall, sheriff of Cloud county, to recover a stock of merchandise consisting of farm implements, plumbing goods, harnesses, buggies, wagons, barbed wire, windmills, etc., which had been seized by the sheriff under divers writs of attachment issued against L. A. Bartlett.

Error from Brown District Court. On June 15,1888, E. S. Malone contracted with the Main Street Hotel Company, a corporation, to furnish all material for and construct and complete a three-story brick hotel building, with stone basement, on lots 39, 40, and 41, in block 10, in the original town of Horton, according to certain plans and specifications prepared by Eckel & Mann, architects, for the sum of $17,585.80, one-fourth of said amount to be paid when the basement walls…

Error from Osage District Court. Action by Lucius Winston, as administrator of the estate of Sivvie Ayres, widow of Albert Alvin Ayres, deceased, against The Atchison, Topeka & Santa Fe Railroad Company, to recover damages for death by wrongful act. Judgment was rendered for plaintiff, and defendant brings the case to this court. The opinion was filed February 8, 1896.

Error from Atchison District Coitrt. The plaintiff in error, as- plaintiff below, filed an amended petition, which reads as follows : “That for a number of years prior to November 19, 1884, the plaintiff and defendant were husband and wife ; that on said date this plaintiff was divorced from said defendant, and the custody, control, and management of plaintiff and defendant’s minor children, Hattie May Allee, then about eight years of age, and William F. Allee, then aged…

Error from Elk District Court. C. W. Canoose, being the owner of a stock of goods at Longton, Kan., on April 2, 1889, made a bill of sale thereof to L. A. Freeman, the defendant in error. Canoose was indebted in a considerable sum on said goods, and on April 4, 1889, several suits were commenced against Mm on the claims, and orders of attachment were levied on the stock by Oley Richolson, as sheriff of Elk county.

Error from Wabaunsee District Court. Action by C. M. Hosack against 0. E. Walker. Judgment for plaintiff, and defendant brings the case here. The facts are stated in the opinion, filed February 8, 1896.

Appeal from Republic District Court. Jim Cowbn and Elmer Barnes were convicted of burglary. They appeal. The facts are stated in the opinion, filed February 8, 1896.

<p>Railway Company — Trespasser on Track — Negligence of Engineer. In a suit for an injury resulting in the death of a child two years old, the jury found that the engineer saw the child in dangerous proximity to the track in time to have stopped the train and prevented the injury, if he had immediately used all the appliances provided on his engine for that purpose, but that he did not exercise proper care, and failed to do so. Held, That said facts are sufficient to uphold a verdict against the railway company, and it is immaterial whether the court erred or not in its instruction making a distinction as to the point of time when duty of the company arises toward a conscious and an unconscious trespasser upon its track.</p>

Appeal from Phillips District Court. I. A. Kness ivas convicted of horse-stealing, and appeals. The facts are stated in the opinion, filed February 8, 1896.

Patrick J. Purtell and W. H. Johnson were convicted of prize-fighting. They appeal. The material facts are stated in the opinion, filed February 8, 1896.

Error from Cloud District Court. ■ On January 9, 1878, at Manhattan, Kan., Alvin S. Rodgers was married to Rebecca B. Rodgers. They lived together as husband and wife until 1883, their home being in Cloud county, and three children were born of the marriage. On or about April 16, 1883, Alvin S. Rodgers was adjudged insane, and was committed to the asylum at Topeka, where he remained until June 28,1883, when he was discharged as cured.

<p> Original Proceeding in Habeas Corpus. </p> <p>Application of A. C. Dyer, comity attorney of Edwards county, for a writ of habeas corpus. The opinion, filed February 8, 1896, states the case.</p>

Error from Harvey District Court. The action in the court below was brought by The First National Bank of Newton, Kansas, against George W. Hardy, James McKinstry, A. B. Gilbert, Pliram Constant, F. E. Carr, W. T. Atkinson, and J. L..

Error from Cowley District Court. Action by George S. Howard and others against E. D. Eddy and another to enjoin the enforcement of a certain judgment. Plaintiffs bring here for review an order dissolving a temporary injunction. The facts are stated in the opinion herein, filed March 7, 1896.

Error from Shaivnee District Court. This action was brought by J. J. Richardson, as plaintiff, on the bond of William C. Jones, as marshal of the United States for the district of Kansas, to recover the value of three stallions alleged to have been taken by him on or about the 14th day of January, 1889, and converted to his own use.

Error from Shawnee District Court. On May 4, 1888, the plaintiff filed his petition against the defendant for a divorce. Held: owned and acquired by deed, will, or otherwise, as to him or her may seem best.” The answer and cross-petition of the defendant contained allegations of ill treatment and abandonment for more than one year, upon which the defendant prayed for a divorce and for alimony. Some other facts appear in the opinion, filed March 7, 1896.

Error from Neosho District Court. Action by John Beaver against The Atchison, Topeka & Santa Fe Railroad Company to recover damages for bodily injuries. Judgment for defendant. The plaintiff brings the case here. The opinion, filed March 7, 1896, states the facts.

Error from Sedgwick District Gout. This action was brought by Alice Shaw to recover damages for injuries received while crossing a railroad track in the city of Wichita. The plaintiff and Mrs. Frazer, with her baby, were in a spring wagon passing along First street. Near the intersection of First street and Fifth Avenue, First street crosses a number of railroad tracks.

Error from Woodson District Court. On March 29, 1886, Loretta A. Ault and John A. Ault, husband and wife, being the owners of lot 3, plat of out-lots to the city of Yates Center, executed their promissory note for $500 to Scott & Brier, and secured the same by mortgage on said premises, and the mortgage was duly recorded on the same day. On April 7, 1886, the note and mortgage were assigned to Mrs. R. B. Fitch.

Error from, Shmvnee District Court. Action brought by Charles L. Botsford and Samuel D. D. Smith against The Barber Asphalt Paving Company and Charles E. Squires, its general managing agent, to recover the sum of $4,574.72, as compensation for services alleged to have been rendered by them as attorneys and agents of the company.

Error from, Trego District Court. Action by The Union Pacific Railway Company against David Gochenour and others. The plaintiff company brings here for review a judgment for defendants. The opinion, filed March 7, 1896, states the material facts.

Error from Wyandotte District Court. Separate actions between The Kansas Triphammer ' Brick Works and others and H. E. Van Laer and others to foreclose mechanics’ liens and mortgages. The actions were consolidated, and from the judgment' rendered H. E. Van Laer and others bring error. The opinion was filed March 7, 1896.

Error from Johnson District Court. Action by W. J. Ward and another, as executors of William Holmes, deceased, against Henry S. In-graham and another, to foreclose a mortgage. The defendants complain of the judgment for plaintiffs, and bring the case to this court. All the material facts are stated in the opinion herein, filed March 7, 1896.

<p> Error from Osage District Court. </p> <p>This action was brought by William M. Ransom against The Chicago, Kansas & Western Railroad Company and The Missouri Pacific Railway Company to recover damages for injuries received by him while a passenger on the Chicago, Kansas & Western, at the intersection of the roads at Osage City. The negligence charged is that the employees of the defendants</p> <p>“carelessly, negligently and unskilfully managed and controlled said engines and cars so owned and operated by said defendants as aforesaid, by failing, neglecting and refusing to bring the said engines and cars of which they had such control, as aforesaid, to a stop, before attempting to go with their said engines and cars over and across the said track of the other said defendant, but the said agents, servants and employees of each of said defendants so in charge of said engines and cars as aforesaid carelessly, negligently and improperly kept the engines and cars of which they had control as aforesaid in motion, and attempted to pass or make the crossing each ahead of or before the other; that, as a result of the careless, negligent and unskilful management of the defendant's trains of engine and cars by their said agents, servants and employees as aforesaid, the train upon which the plaintiff was riding as aforesaid, which said train was going south, and the train of cars and engine of the defendant The Missouri Pacific Railway Company, which said train was going east, ran with great force and violence into and against each other, causing the car on which plaintiff was riding to be thrown from the track. . . .”</p> <p>The train on which the plaintiff was riding consisted of an engine, tender, one or two freight-cars, and a combination baggage- and passenger-car. It came from Quenemo, and was going south on the main line of the Santa Fe. The train on the Missouri Pacific consisted of about 15 freight-cars loaded with cattle. The testimony as to the management of the trains on the two roads is quite conflicting. In answer to special questions, the jury found that the train of the plaintiff in error came to a full stop about 200 feet from the crossing, and gave the signal with the whistle, indicating the intention of the engineer to cross ; that this train was in plain view of a person on the engine of the Missouri Pacific train; that the engineer on the Missouri Pacific train gave the signal for the crossing, and that his train was in motion after having made its stop for the crossing, but no person on the train heard any signal from the Chicago, Kansas & Western train; that his engine was about 120 feet from the crossing before he discovered the approach of the train on the other road; that he then reversed his engine and tried to stop the train ; that the persons in the management of the Chicago, Kansas & Western train did not hear the signal from the Missouri Pacific engine; that the engineer increased the .speed of his train on seeing the approach of the Missouri Pacific train. The concluding findings are as follows :</p> <p>“30. Did the engineer and fireman in charge of the engine on the Chicago, Kansas & Western Railroad Company’s train see the train on the Missouri Pacific railroad approaching the crossing at the time it came to a stop 200 feet north of the crossing, and was the train of the Missouri Pacific Railway Company then in motion toward and approaching the crossing? A. Yes.</p> <p>“31. Did the engineer in charge of the engine on the Chicago, Kansas & Western railroad see the Missouri Pacific train approaching the crossing, and start his engine forward, pulling his train upon the crossing, and. did he pull his train upon the crossing seeing the Missouri Pacific train moving toward the crossing, and only a short distance away, and could he have stopped his train with safety to the passengers after seeing the Missouri Pacific train was coming for the crossing, and thus have avoided the collision between'the trains? A. Yes.</p> <p>“32. Did the engineer in charge of the engine on the Chicago, Kansas & Western railroad, seeing the Missouri Pacific train approaching the crossing with the evident intention of crossing, attempt to stop his train to avoid collision at said crossing? A. No.</p> <p>“33. Could the engineer in charge of the engine pulling the train on the Chicago, Kansas & Western railroad, after seeing the Missouri Pacific train was approaching the crossing with the intention of crossing, have stopped his engine and train with safety to the passengers, and thereby avoided the collision with the Missouri Pacific train at said crossing? A. No.</p> <p>“34. Could the engineer in charge of the engine on the Chicago, Kansas & Western railroad have stopped his train at the speed it was going just before arriving at the crossing within the distance of 30 feet? A. Yes.”</p> <p>A general verdict was rendered against both companies for $2,500, on which judgment was entered. The Chicago, Kansas & Western Railroad Company brings the case here, alleging error. The opinion herein was filed March 7, 1896.</p>

Error from Reno District Court. In 1885, John Caldwell, the plaintiff in error, brought his action against D. B. Miller and others to recover a quarter-section of land now within the corporate limits of the city of Hutchinson. The case was decided adversely to him in April, 1887. White-side & Hutchinson were his attorneys. He discharged them, and employed Brown & Kline to prepare the record and bring the case to this court for review.

Error from Shawnee District Court. The First National Bank of Carroll, Iowa, brought an action against the auditor of state, the treasurer of state, and 34 others, alleging that the Medicine Lodge Sugar Company, Limited, a foreign corporation, for more than two years past has been engaged in the manufacture of sugar at Medicine Lodge, for which it was entitled to a bounty under the laws of the state ; and that, on August 24, 1894, the sugar company borrowed from the First…

Error from Wyandotte District Court. This action was brought in the district court of Wyandotte county by A. B. Hovey, receiver of the Northrup Banking Company, against the board of county commissioners of Wyandotte county, to recover $81,480 and interest, claimed to be due the banking company on certain written instruments, purporting to be obligations of the county, issued by certain road commissioners, in payment for paving Quindaro boulevard.

<p> Error from Crawford District Court. </p> <p>Frank French, a brakeman on the line of railway of the plaintiff in error, was killed at Severy,. in Greenwood county, December 21, 1888, while engaged in putting two empty cars into a freight train on which he was running from Wichita to Neodesha. The road of the plaintiff in error runs east and west through Severy, and the Atchison, Topeka & Santa Fe railroad crosses it, running north and south. Two Y's, one east and one west of the crossing, extend northerly from the road of the plaintiff in error, connecting it with the Atchison, Topeka & Santa Fe railroad. At the west side of the street next west of the crossing there is a three-throw switch, whereby cars may be thrown upon the main line, or upon the west Y, or upon a switch known as the “ house track,” on the south side of the main line, extending eastwardly 300 or 400 feet to the depot contiguous to the crossing. This house track is connected with the main line only at the three-throw switch. About 100 feet, perhaps less, west of the three-throw switch there is another side-track on the south side of the main line, which extends 400 or 500 feet west. This is known as the “stock track,” and connects with the main line at both ends. The crew consisted of Ralston, conductor, Mulvelhill, engineer, Beezley, fireman, Simons, head brakeman, and French, rear brakeman. When the train arrived at Severy shortly after noon, it was directed that the two empty cars standing on the house track be put into the train, which had stopped on the main line west of the easterly connection of the stock track. This could have been done without making a flying switch, but it would have required more time and work. The flying switch was the quicker and easier method, though more dangerous than the other, and this was adopted, and thereby it became necessary in doing the work to run the engine in on the stock track, and throw' the two empties onto the main line, ready to couple to the front of the train. Ralston took a position at the east switch-stand of the stock track to turn the switch. Simons was left with the train, while French went ahead to make the necessary head-end coupling of the engine to the empties. After this was done, French stood on the iron plate extending out a little beyond each side of the nose of the pilot. The cars were pushed eastwardly a short distance, in order to make the run sufficiently long to obtain the necessary speed, and th.en the engine, with the two cars attached, proceeded west, the engine running backward. At some point, perhaps in or near the street, the engine slacked a little so that French might pull the pin to uncouple the cars from the engine, which he did; and, immediately after the cars were uncoupled, the speed of the engine was suddenly increased, and French, who still had hold of the coupling-bar, lost his balance and fell off at or near the three-throw switch, the two empties running over and killing him instantly.</p> <p>It was the theory of the plaintiff that it was the plan of the conductor and the engineer to make this flying switch; that, after the coupling was made, French stood on the south side of the coupling-bar and the nose of the pilot, thus bringing him on the engineer’s side ; that, after drawing the pin, the engineer suddenly increased the speed of his engine without any signal from French for that purpose, before he had time to brace himself; and that thereby he lost his balance and fell off. On the other hand, the defendant contends that French was ordered only to get out the empties and place them in the train, thus giving him a choice of methods, and that he pursued the more dangerous but quicker one ; that he stood on the north side of the coupling-bar and the nose of the pilot, and gave signals to the fireman, who repeated them to the engineer; and that the checking of the engine in order to loosen the pin and the speeding on after the uncoupling were in response to signals from French.</p> <p>The charge made against the railroad company in the petition is as follows :</p> <p>“On the 21st day of December, 1888, through the negligence, carelessness and mismanagement of the engineer and other employees then employed in and about the running, handling and managing the said train of cars on which the said Frank French was then so employed and engaged as such brakeman, and which said employees were also in the employ of said defendant, he, the said Frank French, was then and there thrown from said cars and run over by said cars, and so bruised, wounded and injured that he then and there died.”</p> <p>The railway company filed a motion to require the plaintiff below to make her petition more definite' and certain by stating in what the alleged negligence, carelessness and mismanagement consisted, and what employees, if any, were guilty of such negligence, carelessness, and mismanagement, giving the names and position of such employee or employees, and the acts of negligence, carelessness or mismanagement of ■which they may have been guilty. This motion was overruled by the court. Other facts appear in the opinion, filed March 7, 1896.</p>

John Radford was prosecuted upon a charge of manslaughter in the fourth degree.

William B. Lowe, convicted of killing cattle with the intent to steal their carcasses, appeals. The material facts are stated in the opinion herein, filed March 7, 1896.

Error from Wyandotte Court of Common.Pleas. Edward Jackson, a passenger on an east-bound train -of the Union Pacific Railway Company,'was killed at a point a little west of Rock Island Junction, about 7 o’clock in the morning of October .22, 1890, by reason of a rear-end collision between said train and a train of the defendant company, which was following it.

Error from Miami District Court. The Paola Glass Company brought an action against The Páola Gas Company to recover damages for breach of a contract made May 21, 1887, in which the gas company agreed to deliver at the -works of the glass company, for 10 months from September 1,1887, all the natural gas necessary to run a 12-pot glass factory for the manufacture of glass bottles ; and it was further agreed that the contract included the use of gas for accessory purposes,…

Error from Miami District Court. Action by J. A. Hirst and J. W. Sponable against E. E. Gilmore and L. C. Gilmore on a promissory note. Judgment for plaintiffs. Defendants bring the case here. The case is stated in the opinion herein, filed April 11, 1896.

Error from Kearny District Court. The nature of the action and the material facts are stated in the opinion, .filed April 11, 1896.

Error from Cowley District Court. ■ On the 16th day of July, 1891, the plaintiff in error recovered a judgment against The Hackney Land and Building Company, A. Gertrude RobinSo'n, as executrix of the last will and testament of M. L. Robinson,' deceased, and 12 others, for the sum of $16,303.

Error from Atchison District Court. Prior to May 4, 1882, Ida E. Howe, the wife of George W. Howe, was engaged in the boot and shoe business at Atchison, Kan., as I. E. Howe & Co., the husband being the manager thereof.

Error from Labette District Court. Action by Monroe D. Herrington to recover from Lee Clark on the covenants contained in a conveyance of a quarter-section of land in Morris county.

Error from Wabaunsee District Court. This action was brought by Albert Parkinson, a boy about 15 years old, against the Chicago, Kansas & Nebraska Railway Company and the St. Joseph & Iowa Railroad Company to recover damages for injuries received by him at the Sugar Works station, in Shawnee county, on the 22d of April, 1889.

Error from Butler District Court. J. R. Chambers, a brakeman upon a train of the plaintiff in error, was killed at Lyons, in Rice county, on February 29, 1888, at about 4 o’clock in the morning. The train was on its way from Geneseo to Hutchinson, going south, through Lyons, where it became necessary to take out two cars which were standing on the siding on the west side of the main track.

Error from Wyandotte District Court. Action by Eliza M. Moffatt and others against The Missouri Pacific Railway Company. Judgment for plaintiffs. Defendant brings the case to this court. The opinion herein, filed April 11, 1896, states the nature of the action and the material facts.

Error from Shawnee Circuit Court. On April 18, 1887, Eugenia D. Campbell and husband executed to Elizabeth W. McCracken a bond for a deed of a tract of ground 75 by 145 feet in size, and as corresponding to lots 312, 314 and 316 on Tenth avenue west, city of Topeka, as it would appear on the plat of West Park addition thereafter to be recorded.

Error from Finney District Court. The nature of the action and the material facts are stated in the opinion, filed April 11, 1896.

Jambs Conway was convicted of burglary and larceny, and appeals. The facts are stated in the opinion herein, filed April 11, 1896.

<p> Appeal from Osage District Oourt. </p> <p>The opinion herein, filed April 11, 1896, states the facts.</p>

Richard C. Meade was convicted of' obtaining money by false pretenses. He appeals. The facts are stated in the opinion, filed April 11, 1896.

Error from Lyon District Court. Charles Haber, as plaintiff, brought suit in the district court of Chase county against E. A. Hosier and George D. Hosier, partners as Hosier Bros., The Missouri, Kansas & Texas Railway Company, Francis Brogan, W. J. Brogan, and Joseph N. Brogan, partners as Brogan & Sons, and numerous other parties defendant, alleging that the plaintiff resided in Lyon county, and there kept and owned 49 head of healthy native cattle; that Hosier Bros, owned…

Error from Lyon District Court. The nature of the action and the material facts are stated in the opinion herein, filed April 11, 1896.

<p>1. Distinct Felonies — Information—Evidence—General Rule. While two or more distinct felonies of like nature may be united in one information or indictment, the charges should be made under separate and distinct counts; and the general rule that the evidence must correspond with the allegations and be confined to the point in issue is applicable alike in civil and criminal cases.</p> <p>2. Prior Proceedings — Judicial Notice. In a criminal/prosecution the court should take judicial notice of the prior pi/oceedings in the case, including those which occurred before the'examining magistrate.</p>

<p>1. Divorce — Power of District Court — Constructive Service. The district court has power to award land as alimony in a divorce proceeding based only on constructive notice to the defendant, where the plaintiff alleges sufficient grounds for divorce and alimony in the petition, and asks to have such land appropriated as alimony, and where the publication notice contains a particular description of the land sought to be appropriated plnd the nature of the relief demanded. /</p> <p>2. -Action, Where — Land as Alimony. An action for divorce must be brought in the county where the plaintiff resides, and when rightfully brought, and alimony is asked as an incident of the divorce, any lands of the defendant brought within the control of the court by proper averments in the petition and notice may be awarded as alimony, although they may lie in a county of the state other than where the action was brought.</p>

Error from Butler District Court. The defendant in error commenced Ms action February 24, 1887, to recover damages for personal injuries sustained by Mm while engaged at work as a section-foreman on the railroad of the plaintiff in error. A demurrer to his petition was sustained, and by leave of court he filed an amended petition October 5, 1887. A demurrer to the amended petition was sustained at December term, 1887, and on March 7, 1888, a second amended petition was filed.

<p>1. Telegraph Company — Negligence—Liability. The failure of a telegraph company to exercise due diligence in the transmission and delivery of a telegram presented and paid for by commission merchants notifying the owner of cattle that recent heavy receipts had made the market bad, and advising him not to ship his cattle ■ that week, renders the confpany liable for the direct damages resulting from its negligence.</p> <p>2. -Message — Delivery—Duty of Company. The person to whom the message was addressed had a place of business and a residence at the place to which it was sent, but was absent from the town, preparing to ship his cattle, when it was received, so that personal delivery could not be made by the company. Held, That it was the duty of the company to deliver the message either to those in charge of his business house, or to members of his family at his residence.</p> <p>3. -Action for Damages — Competent Evidence. In an action for damages, it is competent to show the proximity of the place of business and residence of plaintiff, that the location of each was well known to the agent of the company, and that if the message had been delivered at either of these places with reasonable diligence it could have been placed in the hands of the plaintiff before the cattle were shipped.</p> <p>4. -Measure of Damages. Where by reason of the failure to deliver the message the cattle were shipped upon a glutted and demoralized market, resulting in loss to the owner, the measure of damages is the difference between the value of the cattle at the place of shipment, and what they were sold for on the open market at the place of destination, together with the necessary cost of shipment, maintenance, and sale.</p> <p>5. -Market — Reduction of Loss. Where the owner was unable to sell the cattle or obtain an offer for them at the first market to which they were shipped, it was proper for him, acting in good faith and in the exercise of reasonably good judgment, to send the cattle to the next best market, and thus to reduce the injury and loss as far as possible.</p>

<p>Summons — Sheriff's Return, Conclusive between Parties. The return of a sheriff that he has served a summons on the defendants personally, being a matter as to the truth or falsity of which he has personal knowledge, is conclusive between the parties, and cannot be questioned in an action afterward brought to enjoin the enforcement of a judgment based on such service on the ground that the court was without jurisdiction of the person of the defendants.</p>

Error from Finney District Court. The opinion herein, filed May 9, 1896, states the nature of the action and the material facts.

Error from Chase District Court. Action by The Erie Cattle Company against W. W. Guthrie and another to recover damages for an alleged breach of contract. Judgment for defendants. The plaintiff company brings the case to this court. The facts are stated in the opinion, filed May 9, 1896.

Error from Clay District Court. Joel Hinds was killed at a crossing of the public road over the Chicago, Rock Island & Pacific railway at Broughton, Kan., on July 11, 1891. This action was brought by the defendants in error, as administrators of his estate, against the railway company to recover damages, on the ground that his death was caused by the negligence of the railway company.

Error from Cherokee District Court. John N. Ritter, as administrator • of the estate of S. Fred Harker, deceased, filed his petition November 28, 1890, declaring on a policy of insurance issued by the Mutual Life Insurance Company of New York October 22, 1889, to and upon the life of said S. Fred Ilarker for the sum of $2,000.

<p>1. Mortgage — Release by Agent — Denial of Authority — Estoppel. G. held a mortgage on city lots owned by R., and which, were numbered 8 and 9. Lot 8 was improved, and worth nearly as much as the mortgage debt. R. began the construction of a house on lot 9, but had not paid for the lumber and material used therein, and, desiring to use that lot as security to obtain a further loan, he applied to G. to release the mortgage on lot 8 for that purpose, and she directed her agent to examine lot 9, and, if he found it to be good security for the mortgage debt, to discharge the mortgage on lot 8. Upon examination, the agent deemed lot 9 to be sufficient security, and executed a release of the mortgage upon lot 8 upon the margin of the record, to which he signed his principal’s name. B., who had agreed with R. to loan him money on the security of lot 8 if the mortgage was released, upon being informed that the release had been executed, made the loan, taking a mortgage upon the lot. Some months afterward, and in a foreclosure proceeding, G. denied that her agent was duly authorized to execute the release. Held, Under the circumstances, that G. is estopped from questioning the authority of her agent, or from denying that the release is effectual. f •</p> <p>2. Mechanics’ Liens — Mortgage Released — Marshaling ¡Securities. Those who furnished lumber and material for the improvements on lot 9 had a lien claim upon the lot when the mortgage was released which was subsequently perfected. G. had knowledge of the improvements and that there were unsatisfied claims for the material used in making them. Under the doctrine of marshaling securities, she must be held to have made the release at a sacrifice of her own security, and not of the existing equities of those who had furnished the material and made the improvements. The lien claimants are entitled to occupy the position they would have held if no release had been made.</p>

Error from Morris District Court. This action was instituted in tlie district court of Morris county by L. L. Turner, as plaintiff, against The George R. Barse Live-Stock Commission Company and The Missouri Pacific Railway Company to recover 140 head of four-year-old steers, branded “ C ” on the right hip, of which the plaintiff claimed the right of possession under a chattel mortgage executed by W. H. Conklin on the first day of May, 1889.

Error from Wyandotte Common Pleas Court. Ti-ie original suit was instituted April 9, 1891, by the defendant in error against the plaintiff in error to recover $10,000 as damages for personal injuries sustained February 27, 1891, by the alleged negligence of the servants of the railway company in the packinghouse yards of Swift & Co., where the defendant in error was working as a carpenter in constructing a viaduct extending from one building to another and spanning two…

Error from Butler District Goxort. On July 12, 1890, Monk commenced his action against the Vints to recover judgment and to foreclose a mortgage on 200 acres of land ; and on October 23, 1890, after due personal service upon and default of the Vints, judgment was rendered against them for $2,844, bearing interest at 10 per cent, per annum, and $36.05 costs, and a decree of foreclosure was entered, and the land was ordered to be sold after six months without appraisement.

<p>Malicious Prosecution —Damages — Verdict not Disturbed. In an action for malicious prosecution, damages may be recovered for injuries to reputation and business, and an award of $2,500, under the facts of this case, does not warrant this court in interfering on the ground that the verdict is excessive. /</p>