Volume 6 — Kansas Reports

'Mrror from, Leavenworth District Court. Action on covenant of title. In September, 1865, Abel Ii.

<p> Appeal from Shaionee District Court. </p> <p>The defendant Young was prosecuted before a justice of the peace of Shawnee county, for alleged violations of the dramshop act. Being convicted, he appealed to the district court. His appeal was taken and perfected in the manner prescribed by sections four and five of chapter 49 of the laws of 1867.</p> <p>The cause came on to be tried in the district court, whore it was heard upon the record and papers, as in cases removed by “ petition in error,” and the district court affirmed the judgment of the justice. From this judgment the defendant appeals to this court, alleging that he was entitled to a trial de novo.</p>

Error from Bourbon District' Court. Action on a promissory note given by Moore to McIntosh and one Davenport. Suit was commenced before a justice of the peace, and removed to the district court by appeal.

Error from Shawnee District Court. Action by defendant in error to recover damages for injuries alleged to have been occasioned by plaintiff’s failure' to “ use due and proper care, skill, and diligence,” as a physician and surgeon.

Error from Lyon District Court. Ejectment, brought by defendant in error to recover the possession of one hundred and twenty acres of land.

Error from Douglas District Court. Action against the plaintiff in error, as administratrix 'of the estate of James H. Lane. The petition stated that the said J. IT.

Drror from Leavenworth District Court. Action against defendants, a banking firm of the city of Leavenworth, for money bad and received. James Maloney, the plaintiff, was, during the year 1866, a resident of the city of Cincinnati, Ohio; he bad a brother by tbe name of Daniel Maloney, residing in the city of Leavenworth, in this State.

Error from Leavenworth District Court Replevin, brought by plaintiff in error to recover possession of five certain bonds issued by the city of Leavenworth and made payable to “Joseph A. Bullen, or bearer.” Such bonds were issued in payment for work done by said Bullen, under a contract with the city. They were issued Sept. 15th, 1868. The plaintiff Douglas bought the bonds in August, taking Bullen’s order on the city clerk for their delivery to him.

Error from Douglas District Court. Action for assault and battery, and false imprisonment, brought by Keokuk, chief of the Sac aud Fox Indians, as plaintiff. The action was instituted against Albert Wiley, Charles E. Mix, Thomas Murphy, Thomas Dorwin, and William P. Montgomery, and subsequently dismissed as to all except Wiley.

Error from Douglas District Court. Action against the plaintiff in error for assault and buttery, and false imprisonment. The plaintiff below, lian-a-to-wah, a Sac and Fox Indian, was arrested and imprisoned at the same time, and for the same cause as Ilookuk. Wiley v. Keolcuk, ante, p. 94. The pleadings were the same as in the ease cited; and except the question relating to the challenge of a juror, the proceedings, evidence, and instructions were the same as in that case.

Error from Linn District Court. Action by plaintiff in error against Geo. A. Crawford, John J. Swifle, Amelia A. Swifle, and Anna R Massey, as defendants, to vacate and annul certain deeds of conveyance, and compel defendants to convey to plaintiff Wm. JR. MeKean, as trustee for himself and others, certain lands in Linn county.

Error from Linn District Court. Action to vacate and annul certain deeds of conveyance, and to compel defendants AquillaB. Massey, Anna R. Massey and Geo. A. Crawford, to convey certain lands to the plaintiff, Wm. R. McKean, as trustee for himself and others.

Error from Miami District Court. Ejectment, brought by Dunn to recover the possession of one hundred and sixty acres of land. Held: Bunn not only tendered but actually paid all the money due on said land to Miami county. If this case could be brought within § 11, ch. 198, Comp.

Error from Davis District Court. The defendants in error sued Hale f Me Clure for the value of certain work, labor and materials done and furnished in the construction of a stone building on Lots 19 and 20, Block 28, in Junction City.

Mrror from Coffey District Court. Action commenced before a justice of tbe peace, to recover tbe value of timber taken and converted by Holland. Tbe plaintiff bad judgment, and defendant ap-' pealed. In tbe district court tbe defendant bad judgment. Tbe record shows tbat Swauk procured a bill of exceptions to be settled; but sueb bill does not, nor do any exceptions, appear in tbe transcript.

Error from Shawnee District Court. B. S. Craft was elected treasurer of Jackson county for the term of two years, commencing on the second Monday of January, 1864, and for which he qualified and served. The other defendants, Wayant, Franklin, Smith, Cruzan, and Wheeler, were sureties in Craft’s official bond.

Error from Leavenworth District Court Ejectment, brought by Alice. A. Thomas, as plaintiff, against John Maduska and Joseph Bazel, to recover the possession of lots 11 and 12, in block 24, in Leavenworth. The case was tried before a court and a jury.

<p>1. Order — Practice—No error presumed. An order made by the "judge of the court, and which upon sufficient evidence he is authorized to make, will, on review thereof, be presumed to have been regularly made, and upon competent and sufficient testimony, unless the contrary be shown.</p> <p>2. Garnishee — Proceedings in aid of Execution. An order of the district judge, made in. proceedings in aid of execution, requiring, a garnishee of the execution-debtor to pay the money in his hands as such garnishee iny> the hands of the clerk of the district court, is a proper order under §§476 to 486 of ch. 26, Comp. L. 1862; (Gen. St. 1868, p. 725, §§4S7to 504.)</p> <p>8.-- But in such case it is error to direct an execution to. issue against the garnishee to collect the money, in case of default in the making of such payment.</p>

Error from Wyandotte District Court. Stuckslager sued Hefferlin and bis sureties before a justice of the peace, counting on an executor’s bond, and a breach thereof by Hefferlin. On the trial, plaintiff offered in evidence the record of a judgment rendered by the probate court of Wyandotte county in a proceeding in his favor against Hefferlin as executor ; the justice admitted- the judgment in evidence, and defendant excepted.

Error from Douglas District Court. Nicholas Hoysradt filed iu a justice’s court his bill of particulars, entitled “ N. Hoysradt v. The City of North Dawrence,” claiming a balance of $125.40 for services as city clerk, city attorney, office rent, and stationery.

Mrror from Douglas District Court. Ejectment for six hundred and forty acres of land, brought by John McAlpin, Mary Walker, and Isaiah Walker, as plaintiffs, against Iram Henshaw, Christian Knohler, Frederick Whyble, Edward Hale, William Bryman, Daniel Kraus, Barkley Thomas, Mahlon Stubbs, J. Weaver, and Otis Richards, as defendants. The plaintiffs claimed title in fee, under a patent from the government to Irwin P. Long, a Wyandotte Indian, dated May 30th, 1861.

Error from Leavenworth District Court. Justus and William Schuck sued James Ryburn and William II. Haight, alleging an indebtedness from the defendants to them in the sum of $495.75, for work as carpenters, performed on and before the 27th. of October, 1867, upon three buildings, the property of said Ryburn and Haight, situated on part of lot 16, in block 25, Clark & Rees’ addition to Leavenworth.

Error from Shaionee District Court. The defendant in error brought his action in a justice’s court, counting on a promissory note. The note and indorsements are as follows: “ Topeka, Oct. 10, 1862.' “ Sixty days after date, for value received, we jointly and severally promise to pay to Daniel M. Adams, or order, $104.50, in State Warrants of the State of Kansas, with interest at the rate of twenty per cent, until paid. $104.50.

William Dickson was charged by information filed in the criminal court of Leavenworth county, with the Mlling of one Jacob Barnett on the 10th of March, 1870, under such circumstances as to constitute murder in the first degree. At the June Term, 1870, of said court, he was arraigned for trial, and pleaded not guilty.

Error from Miami Eisirict Court. Ratcliff .Morrow was charged by information with grand larceny; and being arrested and in custody he gave his personal recognizance as follows: “Be it remembered, that on the 18th day of April, 1869, Ratcliff Morrow personally appeared before me, a clerk of the district court in and for Miami county, State of Kansas, and acknowledged himself to owe the State of Kansas the sum of $800, to be levied of his goods and chattels, lands and…

Error from Atchison District Court. Action brought by Trimmer to recover a balance of $1006.75 due on a contract for work and labor and materials in the construction of a certain brick building, and to foreclose a mechanic’s lien therefor.

Error from Coffey District Court. William Romary brought his action against Northrup Chick, and others, alleging that in March, 1866, he purchased of Perry Fuller and Alexander McDonald a certain tract of land, taking a bond for a deed, which bond was duly recorded on the 8th of June, 1867; that he paid said F. & McD. in full, on the 10th of July, 1867, acccording to the condition of said bond; that Nortkrwp Chick had acquired the legal title to said land from said F. & McD.…

The defendant Brandon was charged by information with the crimes of burglary and grand larceny. The case was tried, and a verdict returned as follows: “We, the jury sworn and empanneled in this action, do on our oaths find Charles D. Brandon guilty of grand larceny to the amount of $50.00.” The defendant filed a motion in arrest of judgment, which was sustained by the court, and the defendant was discharged.

t Original Proceedings in Mandamus. This action is on an application for a writ of mandamus, brought originally in this court.* The said Land Grant Railway and Trust Company bring the action to compel the said Board of County Commissioners of Coffey county to subscribe -to the capital stock of the Missouri, Kansas & Texas Railway Company, (formerly called the Union Pacific Railway Company, Southern Branch,) to the amount of two hundred thousand dollars, and to issue -in…

<p>1. Contract — Railroads, Bonds. A county, by voting to subscribe for stock in a railway company and to issue bonds in payment therefor, does not thereby create a contract between the county and the railway company for that purpose.</p> <p>2. -And it makes no difference that the vote of the county is to subscribe for the stock and issue the bonds upon certain conditions, which conditions the railway company afterwards performs.</p> <p>8. Tender of Stock, Effect of. Where stock has not been subscribed for, and no express contract is made by the county to subscribe therefor, the county is not bound to issue the bonds upon tender of the stock by the railway company to the county.</p>

Error from Leavenworth District Court. Action to vacate and set aside a sale of certain land's for unpaid special taxes assessed thereon, and to declare said sale, and the tax-certificate thereon issued, to be null and void. The action was commenced by the defendants in error, James B. Laing and R. F. Haines, against tbe City of Leavenworth, and tbe administrator and heirs of John Dugan, deceased.

Error from Leavenworth District Court. Injunction to restrain the collection of special taxes levied for grading a street. Action commenced July 5, 1869, by Lafayette Mills, H. G-. Fauts, Hugh Ewing, and fourteen other persons, as plaintiffs, against The City of Leavenworth, John Hosick, as city Treasurer of said city, and John Dugan, as defendants.

Drror from Leavenworth, District Court. Action to restrain the collection of a special tax assessed to pay for making certain local improvements on Fifth Avenue in the city of Leavenworth. It was commenced by Hiram S. Sleeper and others, as plaintiffs, against the City of Leavenworth, and John Hosick, as City Treasurer. Subsequently to the filing of plaintiffs’ petition, Gr.

Error from Leavenworth District Court. Ejectment, brought by defendant Cockrill, plaintiff below, against S. P. Bowman, Martin Nieman, and Elizabeth Nieman, plaintiffs in error, for the recovery of Lots No. 9 and 10, in Block No. 28, in Clark & Bees’ Addition to the city of Leavenworth. The action was commenced June 2, 1869. There was no controversy in this court about Lot No. 9, the disputed title relating to Lot No. 10 alone.

JError from Shawnee District Court. Injunction, brought by the defendant in error to restrain George Graham, as State Treasurer, from making an “ illegal use ” of .certain public funds in his possession as such Treasurer.

Error from Franklin District Court. Replevin, commenced by John L. Hall as plaintiff, to recover from defendant B. E. Jenness, sheriff of Franklin county, a stock o'f goods. Hall claimed ownership and right of possession, alleged a wrongful detention by Jenness, and that the goods were of the value of $988.10. An order of delivery was obtained, and the goods were delivered to the plaintiff Hall.

William Finley was charged with having committed an “ assault with intent to kill;” was arrested, examined before M. S. M., a justice of the peace, and bound over for his appearance to the district court.

Error from Lyon Lisivict Court. Complaint was ''made before a justice of tbe peace, alleging that the defendant F. W. 'Volmer, “ did, on the 24th of May, 1870, in á certain one and one-half story frame-building, situate on Lot No. 6, on Commercial street, in Randolph’s addition to the city of Emporia, sell spirituous, vinous, fermented, and other intoxicating liquors, to one John Wood, without having at the time a license as grocer, di’amshop-keeper, or tavern-keeper.”…

Error from Lyon District Court. Information filed in the district court on the 29th of June, 1870, charging defendant Volmer with a “second offense ” in selling intoxicating liquors without license, as that offense is defined in § 3 of the Dramshop Act.

Lrror from Leavenworth District Court The plaintiff Cohen recovered judgment against i?. L. Burris and C. B. Trowbridge, jointly. Lands of Trow-bridge were sold to .satisfy the judgment; subsequently the judgment and sale were sot aside, and a new judgment entered.

JError from Riley District Court. Action brought by Sponable, Stoddart f Dm,pie, to foreclose a mortgage given by Lewis Kurtz and Mary A., his wife, in July, 1868, to secure a promissory note given said Leiois Kurtz to Stoddart. The petition alleged the assignment of the note to the plaintiffs, and stated that the mortgage was given to secure the payment of said note.

<p>1. Error must be shoion affirmatively. Where the record does not show all the evidence in a cause, this court will not indulge in far-fetched inferences in order to reverse a ■decision of the district court.</p> <p>2. Proceeds of Sale — Surplus on Sale of Homestead — Who entitled to receive. If a homestead is sold under forced sale, to pay the debt of A., and B. has a mortgage foreclosed upon the same premises, B, is entitled to the surplus arising from the sale after A.’« claim is satisfied, he having a better lien than other judgment creditors.</p>

Error from Nemaha District Court. This was a proceeding instituted under section 65 of the tax Jaw of 1868, (Gen. Stat., p, 1041,) to discover property of the plaintiffs in error subject to taxation, and to place the same on the duplicate assessment'roll for the year 1869. In 1869 Samuel Lappin and Charles G. Scrofford resided in Richmond township, Nemaha county; th.ey were partners, and their personal property was subject to assessment and taxation in said township.

Error from Leavenworth District Court. Action brought by John McKee, defendant in error, a8 ¿receiver of the late firm of Carney & Stevens, to recover money had and received by Me Whirt to the use of said C. S. On the 11th of January, 1864, one Nathan Bray .gave his note to Carney ¡fe Stevens for $1,927.92, due in sixty days. On the 1st of October, 1864, this note was Assigned to plaintiff in error. He brought suit on it in •his own name in Bourbon county.

Error from Jackson District Court. Batson filed his petition in the court below on the fifth day of March, 1869, alleging that Distar, on the first day of said month, made an agreement with said plaintiff to sell him a certain tract of land for the sum of $1,400, and to execute to said plaintiff a good and sufficient deed therefor on the third day of March. The petition alleged a breach of said agreement, and demanded judgment for one thousand dollars damages.

Error from Wyandotte District Court. Edmund Terry recovered a judgment in the district court in October, 1865, against W. T. Wheatley and Thomas F. Thatcher for $2,317 debt, and for the sale of the “ undivided-half of lot five, in block six, in the city of Wyandotte,” to satisfy such debt, which was decreedto bé a lien on said premises.

from Labette District Court. At the general election held on the 2d day of November 1869, Steele and Martin were opposing candidates for the office of county commissioner for the First Commissioner District of Labette county.

Mror from. Lyon District Court. Trespass, brought by Henry Clark against Noyes Spicer, to recover damages for certain supposed illegal acts committed by said Spicer while acting as a justice of the peace. In July 1868 Clark was prosecuted criminally before said Spicer for “ misconduct in office” as school director.

Error from Johnson District Court. Ejectment, brought by the defendants in error, as the widow and children, and heirs at law, of George W. Wells, deceased, to recover 160 acres of land in Johnson county.

Error from Leavenworth Listrict Court. John E. Tappan brought his action against The First National Bank'of Leavenworth, to recover a balance of money alleged in the petition to be due him upon deposits in the Bank made in his name.

Error from Leavenworth District Court Action brought by The Hazard Powder Company, a corporation created under the laws of Connecticut, to recover of the defendants Otto H. Viergutz, David Prager Julius Haug, partners, etc., divers sums of money, amounting in the aggregate to $8,707.69.

JError from Injon District Court. ■ Noah Wilson brought suit against the makers upon the following non-negotiable note, to-wit: “Leroy,… Held: that, under said section the defendant may avail himself of any defense he might have interposed had the action been by the assignor, and which existed in favor of the defendant against such assignor at the time of the assignment: Western Bank v. Sherwood, 29 Barb., 383; Beckwith v. Union Bank, 4 Sand., 610; and affirmed, 5 Seld.,…

Board of Railroad Assessors. Chapter 124 of the laws of 1869, (p. 249,) prescribed the manner in which the property of railroad and other corporations should be assessed for the purposes of taxation.

Error from Leavenworth District Court On the 7th of November, 1867, tbe county board of commissioners of Leavenworth county adopted tbe following resolution, to-wit: “ Resolved, That H. O. Keeler be, and he is hereby authorized to make a correct copy of the indices from January 1, 1860, to December 31, 1866, inclusive; and that in the indices so made, all the tax deeds on record that have not been indexed, be included in and made a part of said index.” On the 9th of January,…

Original Proceedings in Mandamus. Proceedings to determine tbe validity of a county-seat -election, and to compel the defendants, Solon E. Marston, George W- Gabriel, and Israel Stoddard, as commissioners of the county of Neosho, to move their records and keep -their office at the town of Erie, the alleged county-seat •of said county.

Error from Marshall District Court. On the 22d of June, 1866, Francis Kirkwood brought his action in the Marshall County District Court to restrain ■John McCoy, as sheriff, from selling certain lands in Marshall county for taxes assessed on the personal property of plaintiff in error for the year 1865, and to restrain James S. Magill, as treasurer of said county, from issuing an alias tax warrant or execution. A temporary injunction was granted.