Volume 6 — Kansas Court of Appeals Reports

Error from Atchison District Court. Hon. Robert M. Eaton, Judge. This case was originally before the Court of Appeals in December, 1896, and the opinion then rendered will be found in 5 Kansas Appeals, page 17. October 4, 1894, after the commencement of this proceeding in error, Peter Busenbark, a defendant below and also upon error, died.

<p>Error from Atchison District Court. Hon. Robert M. Eaton, Judge.</p>

<p>Error from Atchison District Court. Hon. Robert M. Eaton, Judge.</p>

Error from Atchison District Court. Hon. Robert M. Eaton, Judge. This action was brought by Briggs and Letson against the plaintiff in error, Baldwin, to quiet the title to a certain tract of land in Atchison County, Kansas. Both chains of title began with Peter Cadue, a Kiekapoo Indian, to whom the land was allotted under the treaty with the Kiekapoo Tribe, proclaimed May 28, 1863.

<p>1. Warranty — answer denying that unsigned written, attached to contract of sale is part thereof, and alleging parol, and breach, states defense. In an action upon a written order for the purchase of machinery, signed by the defendants, to which is attached a printed form of warranty without signature, an answer denying that the writing set out constitutes the entire contract, denying that the printed form of warranty attached to the order was any part of the contract, and alleging a verbal warranty and a breach thereof, states a defense good against an attack by demurrer for want of facts.</p> <p>2. - and evidence showing printed, not part of contract, evidence of verbal, admissible. It is not error to permit the defendant, under such an issue, to offer evidence of the verbal warranty, evidence having first been given tending to show that the printed warranty was not a part of the original contract.</p> <p>3. - defendants jointly claiming damages for breach of, damages accruing to one separately not recoverable. Under an answer by three defendants jointly claiming damages by reason of breach of warranty, damages accruing to a defendant individually and in which the other defendants have no joint interest, cannot be recovered.</p> <p>4. Aeeidavit eor Continuance — inadmissible except as agreed deposition of absent witness. An affidavit for a continuance cannot be read as evidence in a case, unless under a condition to admit it as the deposition of the absent witness, upon the refusal of such application.</p> <p>5. Warranty- — breach of, alleged, evidence that other machines like one warranted, made by same company, failed to work well, admissible. It is competent for the defendants in such case to show that other machines of the same kind, made by the plaintiff and handled by competent parties in the same vicinity and under similar circumstances, failed to do the work for which said machines were designed and for which the defendants purchased this machine.</p>

<p>1. Evidence — question stated, and held within the issues. Where one of the principal issues in the case is whether the plaintiff made the sale in question upon the representations of the purchaser, certified by the agent, or upon the result of a personal investigation made by the traveling agent who closed up the sale, the traveling agent, when upon the witness stand for the plaintiff, should have been allowed to answer the following question : “ In making that settlement with Mr. McCarthy [the purchaser] will you please state whether or not you relied on the property statement contained in the order and sent in by the Murphys ? ”</p> <p>2. - of market value, at a time before liability could attach, incompetent and irrelevant. Where an engine was delivered to the purchaser, July 1,1890, and retaken by the vendor upon a chattel mortgage for a part of the purchase price, November 1, 1890, a question as to its market value on September 20,1890, was incompetent and irrelevant and an objection thereto should have been sustained.</p> <p>3. Contract — to examine records stated, and duty determined. Where the defendants agreed to verify from the record, and guarantee to be correct, the property statement of the purchaser, and certified on the statement as follows: “We learn from personal examination of the record the statements made herein are reliable,” and signed the same as agents, said agents were bound to make a personal examination of the record, and if they failed to do so, they cannot plead ignorance of what the record contains.</p>

<p>Error from Shawnee District Court. Hon. Z. T. Hazen, Judge.</p>

Error from Morris District Court. Hon. James Humphrey, Judge. This was an action to foreclose a mortgage-made by McCleery and wife, defendants in the court below, to the Kansas Central Loan and Investment Company, by that company assigned to one Blodgett, and by Blodgett to the plaintiff in error, which was also plaintiff below.

Error from Wyandotte Court of Common Pleas. Hon. T. P. Anderson, Judge. About noon on the twenty-ninth day of June, 1891, R. J. Dunning, the. owner of a chattel mortgage given by Alexander Collins, took possession of the stock of goods pledged in the mortgage. On the same day various other creditors of Collins, among whom were C. W. Bangs & Son, the plaintiffs below, brought their actions and caused garnishee processes to issue against Dunning.

<p>Error from Shawnee District Court. Hon. Z. T. Hazen, Judge.</p>

<p>Error from Atchison District Court. Hon. W. D. Webb, Judge.</p>

Error from Jackson District Court. Hon. Louis A. Myers, Judge. This action was begun in the District Court of Jackson County, to foreclose a real-estate mortgage made by Annie E. Wiggins, a widow, to the defendant in error, Friend. The land mortgaged was twenty-seven acres, the separate property of Mrs. Wiggins, inherited by her from the estate of her father.

<p>Error from Wyandotte District Court. Hon. Henry L. Alden, Judge.</p>

Error from Shawnee District Court. Hon. John Guthrie, Judge. On the twenty-first day of February, 1891, Cornelius Morrison recovered a judgment against Michael Ward, before a justice of the peace in the city of Topeka. An appeal was taken to the District Court and a transcript filed therein on the fourth day of March, 1891.

<p>Error from Johnson District Court. Hon. John T. Burris, Judge.</p>

Error from Leavenworth District|Court. Hon. Robert Crosier, Judge. This was an action to foreclose a real-estate mortgage. Plaintiff in error, Cade, held 'a second mortgage on the land.

Error from Jefferson District Court. Hon. Louis A. Myers, Judge. This was an action commenced by Lottie C. Kemper against C. C. Lord and others, in the District Court of Jefferson County.

<p>Parties on Error' — mortgagor is necessary, to review of decree iawarding and denying liens. In an action to foreclose a mortgage, in which there is a personal judgment against the mortgagors in favor of several different claimants for liens, and the lien of plaintiff in error in this court is denied and the liens of other parties awarded to them, and the plaintiff in error seeks in this court to enlarge his judgment against the mortgagors and to establish his lien against the property in controversy, the mortgagors are necessary parties to the petition in error, and without the presence of such mortgagors this court has no jurisdiction of the case to determine such contention, and in their absence the petition in error will be dismissed.</p>

<p>Error from Shawnee Circuit Court. Hon. J. B. Johnson, Judge.</p>

<p>Error from Nemaha District Court. Hon. J. F. Thompson, Judge.</p>

Error from Nemaha District Court. Hon. J. F. Thompson, Judge. On July 15, 1890, Margaret Redmond was adjudged insane, and her husband, James Redmond, was appointed her guardian. About August, 1890, Redmond, as guardian, procured an order of the probate court permitting him to mortgage the family homestead. He executed this mortgage to the plaintiff in error both in his individual capacity and as guardian for his insane wife.

<p>Pleading — party is not required to give common-law name of cause of action. A petitiou that alleged that the plaintiff was induced by the fraudulent and untruthful misrepresentations of the defendants to buy from them and pay for the capital stock of a corporation, the same being utterly valueless, and that the defendants knew at the time they made the representations of the untruthfulness thereof, and that the plaintiff, relying upon such statements, parted with his money and bought stock, states but one cause of action sounding in tort; and it was error for the court, upon demurrer being presented by the defendants to the evidence of the plaintiff in support thereof, to require the plaintiff to state or say by what common-law name he denominated his cause of action.</p>

<p>Error from Wyandotte District Court. Hon. Henry L. Alden, Judge.</p>

Error from Wyandotte Court of Common Pleas. Hon. T. P. Anderson, Judge. The plaintiff in error, the Kansas Elevator Company, was engaged in the business of operating an elevator. It received from the defendants in error certain corn to be by it unloaded, stored and reloaded.

<p>1. Appellate Practice — motion to correct the record not considered after cause submitted. A motion to correct the record in a case brought to this court on appeal will not be considered, after the case has been submitted on the record to this court and the judgment of the court below affirmed, unless a motion for a rehearing is allowed, upon proper application and grounds therefor.</p> <p>2. -rehearing not granted unless application is within the court’s rule. An application for a rehearing of a cause will not be granted unless it clearly appears that some question decisive of the case and duly submitted by counsel has been overlooked by the court, or that the decision is in conflict with an express statute or controlling decision, to which the attention of the court was not called or which has been overlooked by the court.</p>

<p>1. Public Nuisance — private party may bring action to abate. A private party whose property is specially, peculiarly and injuriously affected by the erection and maintenance of a public nuisance, may maintain an action to abate the same and restrain the maintenance .thereof.</p> <p>2. - city has no authority to authorize the construction and maintenance of. The erection and maintenance of a depot building upon a public street in a city of the first class constitutes a public nuisance, and a city council of such city cannot by ordinance lawfully authorize the construction and maintenance of such nuisance.</p>

<p>Error from Atchison District Court. Hon. W. D. Webb, Judge.</p>

<p>Jurisdiction — appeal perfected, police judge has lost. After an appeal has been perfected by the defendant from a judgment of conviction by a police judge in a city of the second class, for a misdemeanor under an ordinance of the city, the police court has no longer any jurisdiction of the case, and an order made by it thereafter, dismissing such appeal, is without jurisdiction and is void.</p>

<p>Appeal from Jackson District Court. Hon. Louis A. Myers, Judge.</p>

Error from Wyandotte Court of Common Pleas. Hon. T. P. Anderson, Judge. I. H. LaVeen was arrested, charged with criminal libel. April 29, 1890, he made application to the District Court of Wyandotte County to be released from ■custody upon giving bond for his appearance to answer the pending charge.

<p>1. Indictment — irregularity in selecting grand jury not amo unting to corruption, overruling motion to quash, not error. It is not error for the trial court to overrule a motion to quash an indictment for irregularity in selecting the grand jury, where such irregularity, in the opinion of the court, does not amount to corruption.</p> <p>2. -indorsement of witness on, at commencement of trial, discretionary, and not reviewable except discretion abused. It is within the discretion of the trial court to permit the names of additional witnesses to be indorsed' on an indictment at the commencement of the trial, and a judgment should not be reversed on account of such permission, unless it appears that such indorsement was an abuse of such discretion.</p> <p>3. -evidence showing accused guilty of offense other than charged in, competent if also showing element in offense charged. Evidence tending to prove the accused guilty of an offense not charged in the indictment, is not on that account incompetent, if it tends to prove any fact constituting an element in the offense that is charged in the indictment. If intent is material, any fact is competent against the accused which tends to show the motive of the criminal act charged. In such case the evidence is not incompetent because it may tend to show the accused guilty of another offense than the one charged.</p>

<p>1. Grand Jury — irregularity in selecting, not amounting to corruption, not ground for quashing indictment. A motion to quash an indictment for irregularities in the selection and proceedings of the grand jury which returned it, can only be sustained, under paragraph 5144, General Statutes of 1889, when such irregularities, in the opinion of the court, amount to corruption ; and where the evidence upon that question is conflicting, the judgment of the court below will not be disturbed.</p> <p>2. Receiving Dead Body — elements of crime of, what are. Besides the formal matter of venue, etc., to lawfully convict the defendant in this case, it was necessary for the jury to have found from the evidence, beyond a reasonable doubt, only the following facts: First, that the described body was unlawfully removed from'its grave for the purpose of dissection, and second, that the defendant received the body knowing that it had been so unlawfully removed for such purpose, or knowingly aided, counseled, abetted, or assisted some other person or persons in so doing.</p> <p>3. Possession oe Fruit oe Crime — unexplained, evidence of guilt; applies to person receiving as well as taking; need not he exclusive. The unexplained possession of the fruit of' crime, recently after its commission, is prima facie evidence of guilty possession, and this rule-applies equally to a person charged with receiving and to one charged with taking it; and such possession need not be exclusive, but may be a joint possession, and may, in connection with other circumstances, justify a conviction.</p> <p>4. Good Character — proof of defendant's, does not in laiv remove presumption from possession of fruit of crime; weight of, for jury. It was not error for the court to refuse to give to the jury an instruction which was, in substance, that the proof of the good character of the defendant completely removed the presumption of guilt arising from the possession of the stolen body. It was the duty of the jury to consider the evidence upon each of these subjects, and give it such weight as they thought it entitled to under all the circumstances of the case.</p> <p>5. Instruction — assuming as fact, material, controverted question, error. It is reversible error for a court to assume as a proven fact a material, controverted question, and, under such assumption, to instruct the jury as to their duty.</p>

<p>Paving Contract — city and not taxing district immediately liable on, though tax assessable only by taxing districts. In an action on a paving contract in writing, against a city, to recover a balance alleged to be due thereon, an answer that alleges that “the balance so sued for is for paving an eight-foot strip on Quincy Street, extending through two blocks on said street, which two blocks constitute two separate special taxing districts in the City of Topeka, and said paving being a special improvement, for which under the law the said taxing districts are alone liable, the cost of such improvement is therefore chargeable against the real property in said taxing districts, and not in any manner chargeable against the City at large,” does not state a defense, and it was error for the court to overrule a demurrer thereto.</p>

<p>Error from Wyandotte Court of Common Pleas. Hon. T. P..Anderson, Judge.</p>

<p>Amendment — of petition by changing prayer, will not justify exclusion of all evidence under amended petition. Where plaintiffs in their first petition set up that, through a conspiracy formed for that purpose by the defendants, a part of the defendants fraudulently procured certain goods of the plaintiffs and then attempted to defeat a recovery therefor by pretending to transfer their property to the other defendants, and the relief prayed for was a judgment against the parties who purchased the goods, and that said judgment be satisfied by a sale of the property so fraudulently in the hands of the other conspirators, and the plaintiffs afterwards amended their petition by setting up substantially the same state of facts but praying judgment against all of the conspirators for damages caused by the fraudulent acts, held, that it was error for the court to refuse to permit the plaintiffs to introduce any evidence under their amended petition.</p>

<p>Error from Shawnee Circuit Court. Hon. J. B. Johnson, Judge.</p>

<p>Error from Doniphan- District Court. Hon. J. F. Thompson, Judge.</p>

<p>Promissory Note — stipulation in, for appearance in court in behalf of 'payor by attorney appointed by payee, void. The plaintiff filed his petition in the Shawnee County Circuit Court against the defendant, asking judgment upon a promissory note containing the following agreements : “To secure the payment of this note, I hereby stipulate that, if suit be brought upon it in any court of record in the city of Topeka, Kansas, I hereby authorize, irrevocably, any attorney of such court to appear for me therein at any time hereafter, within the year 1892, and enter an appearance therein for me and file a written waiver of the issuance and service of a summons in such suit.” The plaintiff selected an attorney of the court, who entered an appearance for the defendant, in writing, expressly disclaiming any authority therefor except such as was contained in the note. At a subsequent term, without further appearance, the court rendered judgment as upon default therein. Held, that such entry of appearance was without authority in law and conferred no jurisdiction upon the court.</p>

<p>1. Action to Quiet Title — to alluvial accretions, not error to permit evidence of plaintiff’s title to land along shore. In an action to quiet title to accretions formed by a change of thp channel of the Missouri River, it is not error for the court to allow the plaintiff to show by evidence the chain or claim of title upon which his possession is founded.</p> <p>2. -refusal to admit void tax deed in evidence in defense to, not error. It is not reversible error for the trial court to refuse to admit in evidence, as a defense to an action to quiet title, a tax deed which is void upon its face.</p> <p>3. -evidence as to plaintiff’s possession at beginning of suit conflicting, judgment not reversed. Where there is some legal evidence that the plaintiff was in possession of the land in controversy at the beginning of the suit, a judgment for the plaintiff will not be reversed because the evidence upon that question is conflicting.</p>

<p>1. Defective Sidewalk — action for injury from, evidence as to what injured party said, at time of accident, admissible. In an action against a city for the recovery of damages sustained by reason of an injury caused by a defective sidewalk, it is not error to allow a witness to testify as to what the injured party said immediately after the accident, as to where she was hurt; neither was it error to allow the injured party to testify that she was unable to sleep while suffering from such injury.</p> <p>2. -condition of, four years prior to accident, inadmissible. While it was not competent to show the condition, four years prior to the accident, of the board sidewalk where the accident occurred, the admission of such evidence was not reversible error in this case.</p> <p>3. -instruction that if plaintiff had opportunity to know of, and unnecessarily used, city not liable, properly refused. The court did not err in refusing to give the following instruction: “If you find from the evidence that the sidewalk complained of was in said defective and dangerous condition, that the same was open and notorious and had been in such condition for a long time prior thereto, and that plaintiff had had opportunity-prior to the date of such injury to know the condition thereof, and if you further find that on the opposite side of the street and in plaintiff’s usual line of travel there was a safe sidewalk, then I charge you that plaintiff used such defective sidewalk at her peril and that you should find for the defendant.”</p>

<p>1. Evidence — rule that repairing bridge be left to commissioner in ivhose district located, not, that chairman of board had no notice of defect. The mere fact that a board of county commissioners established a rule that'the matter of repairing bridges ■ should be left to the commissioner in whose district the bridge was located, does hot tend to show whether or not the chairman had actual notice of the defective and dangerous condition of the bridge; and evidence of such fact is properly refused.</p> <p>2. Contributory Negligence — question of fact for jury. The court did not err in refusing instructions. The question of contributory negligence was a question of fact for the jury.</p> <p>3. Instruction — evidence all showing county rebuilt and repaired bridge, that it was “built and paid for” by county, proper. Where all the evidence shows that a county rebuilt, maintained, and undertook to repair a bridge at the expense of the county, which cost more than two hundred dollars, the court properly instructed the jury: “There is no dispute of the fact that the bridge and approaches in question were built and paid for by the county.”</p> <p>4. Demurrer to Evidence — evidence fairly sustaining all facts necessary to recovery, properly overruled. The demurrer to the evidence was properly overruled. There was evidence fairly sustaining all the facts necessary to a recovery.</p> <p>5. Practice — plaintiff arguing case and defendant waiving argument, permitting plaintiff to re-argue and refusing defendant permission to ansiver, error. Where a plaintiff makes an opening address to the jury, and the opposite party waives argument, and the plaintiff is then permitted to re-argue the case over objection, and the court refuses to allow the defendant to answer, held, that the court erred in permitting plaintiff to re-argue the case after defendant waived argument, and also erred in refusing the defendant’s request to answer.</p>

<p>Error from Jefferson District Court. Hon. Louis A. Myers, Judge.</p>

<p>1. Attorney or Record — acts of, within apparent authority, are acts of client unless parties have notice to contrary. The acts of a regularly employed attorney of record for the plaintiff, in an action pending in the courts of this State, within the apparent scope of his authority, are in law the acts of the plaintiff, unless the parties with whom he deals have notice, or the files of the case show, that his authority has been revoked.</p> <p>2. Appellate Procedure — party accepting benefits of judgment cannot prosecute error to reverse it. A litigant who accepts any substantial part of the benefits of a judgment cannot after-wards prosecute a proceeding in error to reverse the same.</p>

<p>Husband and Wire — property interests kept separate by, husband paying wife’s note indorsed to him has valid claim against wife’s estate. Where a husband and wife had'separate property and kept their business matters distinct, and the husband, at the request of the wife and upon her promise to settle with him therefor, paid off a note given by the wife, and the note was indored in blank and delivered to the husband, held, that the note in the hands of the husband was a proper charge against the estate of the wife after her death.</p>

<p>Error from Wyandotte Court of Common Pleas. Hon. T. P. Anderson, Judge.</p>

<p>Error from Wyandotte District Court. Hon. Henry L. Alden, Judge.</p>

<p>Error from Shawnee District Court. Hon. Z. T. Hazen, Judge.</p>

<p>Civil Procedure — where summons quashed on last day of term without plaintiff objecting, court cannot afterwards acquire jurisdiction of ■defendant by sustaining motion to rehear, filed seven days later. Where,' upon a motion to set aside summons and service, evidence is offered and judgment rendered that “such summons be and the same is hereby quashed and set aside and declared null and void, at the costs of the plaintiff,” and no objection or exception is made to the judgment, held, that a motion for a rehearing, filed seven days after the adjournment of the term of the court, does not give the court jurisdiction to review such order and judgment.</p>

<p>Appeal Bond — surety on, not discharged because suit dismissed as to only defendant signing, though he intended to appeal only for himself. Where a judgment was rendered by a justice of the peace against several defendants, and an appeal bond, purporting to be in favor of all the defendants but signed by but one of them, was filed and approved, and thereupon the action was transferred to the district court, where it was dismissed as to the defendant signing the bond, but judgment was rendered against other of the defendants, the surety on such bond cannot avoid his liability thereon by showing that the defendant who signed the bond and caused it to be filed intended to appeal only for himself.</p>

Error from Brown District Court. Hon. J. E. Thompson, Judge. This action was brought by plaintiffs in error against tlje defendant in error, to recover damages for the defendant’s negligence in presenting a draft, drawn by plaintiffs on a firm known as Craig Brothers, and sent to the defendant with instructions to promptly procure acceptance and to return if not paid.

Error from Wyandotte District Court. Hon. Henry L, Alden, Judge. Three mortgages were outstanding, held by different persons, on certain lots in Kansas City, Kan. Henton Gordon was the holder of the third mortgage. The second mortgagee brought suit to foreclose his mortgage, and, under an order of sale issued in that action, the lots were sold to Gordon, the third mortgagee, subject to the lien of the first mortgage.

<p>1. Chattel Mortgage — in fraud of creditors, evidence of mortgagor’s fraudulent intent competent against mortgagee with knowledge. In an action of replevin by a mortgagee to recover possession of personal property, in which the validity of the mortgage is assailed as having been made to hinder, delay, and defraud creditors, with knowledge thereof upon the part of the mortgagee, it is competent to introduce evidence in the first instance to show the fraudulent intent of the mortgagor.</p> <p>2. -so evidence showing business relations between parties to, before, made. In such case it is competent, for the purpose of showing knowledge upon the part of the mortgagee, to introduce evidence to show the business relations existing between the mortgagor and mortgagee prior to and at the time the mortgage was made.</p> <p>3. Records oe Register or Deeds — competent on showing party offering, has not possession or control of originals. In order to make the records of the register of deeds’ office competent evidence, it is only necessary to show that the party offering such records has not the possession or control of the originals.</p>

<p>1. Prohibitory Liquor Law — non-resident property owner's agent’s knowledge of unlawful use of property, is knowledge of principal. In an action to establish a lien upon real property, under paragraph 2538 of the General Statutes of 1889, knowledge of the unlawful use of the property may be shown by showing that the agent of a non-resident owner had knowledge of such unlawful use, where such agent is in charge of the property, renting and collecting the rents thereof, notwithstanding the direction of the principal to such agent not to rent the property for such unlawful purpose.</p> <p>2. -not necessary that, tenant be kept in confinement to enforce lien under. In order to authorize the enforcement of such lien in behalf of the State for fine and costs for the violation of the Prohibitory Liquor Law, it is not necessary that the tenant convicted of such offense shall be kept in confinement under sentence of the court until after the establishment of such lien ;* it is sufficient that he be adjudged to be committed to the jail until fine and costs are paid, and that he be actually and in good faith committed thereto; and a release from such commitment by order of the board of county commissioners, after such action to enforce the lien is begun, will not defeat the State’s right to such lien.</p>

<p>1. Appellate Practice — evidence aliunde the record received' to show jurisdiction. Where the amount in controversy is not disclosed by the record of the proceedings of the lower court in the cause, this court will hear affidavits or other competent evidence, upon application of the plaintiff in error, for the purpose of showing that the amount in controversy is sufficient to give the court jurisdiction to hear and determine the cause upon the merits.</p> <p>. 2. -certificate of trial judge may be attached after case-made filed. Where the certificate of the trial judge is necessary, in cases involving less than one hundred dollars, to show that such case is within the exception of the statute, this court will permit an amendment to the record by the filing and attaching of such certificate, upon application of the plaintiff in error, if the record discloses that such cause is within the exception provided in the statute.</p> <p>3. Mortgagor Purchasing Tax Title — pays the taxes. A mortgagor and owner of real estate in possession thereof, whose duty it is at the time to pay the taxes upon such property or to see that they are paid, cannot become a purchaser at a tax sale of such property, as against his mortgagee. An attempted purchase by the mortgagor under such circumstances is, in substance and in law, ' a payment of the tax, and discharges the property from the lien for such tax.</p> <p>4. - assignee of, not a bona fide purchaser. Nor can such mortgagor assign a tax-sale certificate on his property to another, so as to make such other a 'bona fide purchaser entitled to claim the benefit of such sale thereunder as against such mortgagee.</p>

<p>1. Evidence — in this case warrants instruction to return verdict for defendant. In an action upon a fire insurance policy, where it appears that the insured has by his own act forfeited his right to recover under the policy according to its very terms, and no waiver is plead or shown, it is not error for the court to instruct the jury to return a verdict for the defendant.</p> <p>2. Insurance Policy — payable to mortgagee as his interest may appear is for benefit of mortgagor. Additional insurance taken out in the name of the owner of the property insured, with an indorsement that the loss, if any, shall be payable to a mortgagee named therein as his interest may appear, is not an insurance of the mortgagee’s interest, but is an insurance of the property for the benefit of the owner; and, if taken out without notice or consent, is a violation of the condition in a prior policy avoiding it in case the owner shall take out additional insurance without the knowledge or consent of the company.</p>

Error from Smith District Court. Hon. Cyrus Heren, Judge. Eaton, the plaintiff in error, recovered judgment in the Smith County District Court. Execution was issued to the defendant McElhone, as Sheriff of Smith County, on this judgment. The Sheriff collected the judgment.

Error from Marshall District Court. Hon. B. B. Spilman, Judge. This action was commenced by M. J. Duigenan against Henry Brenneke and Theo. H. Polack, in a justice’s court. The case was afterwards appealed, and tried in the District Court of Marshall County. In the District Court, Duigenan recovered judgment against defendants for $131.60 and costs. Defendants bring the case here for review.

<p>1. Life Insurance — suit on policy, loitness testifying as to deceased's last illness, cross-examination as to when he was previously ill proper. In an action upon a certificate of membership in a fraternal order, to recover benefits' payable thereunder to the wife upon her husband’s decease, where the defense is that the answers of the deceased to the questions contained in the application for membership were false, and that the applicant had at the time of the making of the same a disease called tuberculosis of the lungs, or consumption, of which disease he died within six months after making such application, and where the plaintiff testifies in her own behalf that her husband was taken sick with his last illness some time in April and died in June, it is proper on cross-examination for the defendant to inquire of her when, immediately prior to April, was he ill, before this last illness, which she alleges bsgan in April.</p> <p>2. - defense may show deceased used medicine for consumption within sixty days after making application for. In such case it is competent for the defendant to show that the deceased was, within sixty days after his application, using medicine or treatment for such disease.</p> <p>3. -proofs of death furnished by plaintiff competent evidence in behalf of defendant. Where proofs of death are required by such fraternal order to be made to it before any right to recover for such benefits should accrue to the claimant, proofs of death furnished by the plaintiff are competent evidence in behalf of the defendant, and it is error for the court to reject them.</p> <p>4. - truth of answers in application for, made part of contract, materiality conclusively presumed. Where the applicant in such case expressly, in the body of the application as well as in the certificate, warrants the literal and exact truthfulness of all his answers contained in such application, and the application is made a part of the contract, and it is expressly declared therein that the application is the basis of the contract, and that the certificate is issued upon the express condition of the literal and exact truthfulness of the answers therein contained, such questions and answers become material; and where there is a condition in the certificate that it shall be void in case of the untruthfulness of any of these answers, neither the court nor the jury is at liberty to inquire into the materiality of the questions and answers, and unless they are true the beneficiary cannot recover.</p>

Error from Jewell District Court. Hon. Cyrus Heren, Judge. This was an action brought by J. H. Synder, as plaintiff, in the District Court of Jewell county, against A. H. Hamm, and W. S. Canan as receiver of Hulbert Brothers, on a promissory note bearing date of May 12, 1891, executed and delivered by A. H. Hamm to Hulbert Brothers, for the sum of $1180, due six months after date, payable to Hulbert Brothers, or order.

<p>County Surveyor — final order of, reviewable by district court. Under the provisions of section 540 of the Code of Civil Procedure, the district court has jurisdiction to review the proceedings, final order and report of a county surveyor, determining the disputed corners and boundaries of lands, and made under statutory authority.</p>

<p>1. Incorporation or a City — all jurisdictional facts must appear in order incorporating. All facts necessary to give a board of county commissioners jurisdiction under paragraph 923, General Statutes of 1889, to authorize the incorporation of a town or village as a city of the third class, must appear by its records of such proceeding. It must appear that a petition, signed by a majority of the electors of an unincorporated town or village and accompanied by proof that it had been published as required by law, was presented to the board, to give it jurisdiction to act; and a city government based upon an order of the board without such jurisdictional facts so appearing, may be a corporation de facto, but not de jure. Such de facto corporation cannot refer to such order as authority, or base its corporate acts upon such unauthorized order. That provision of the section requiring the board to designate the metes and bounds of such city in its order, is not complied with by the fact that in reciting the substance of the petition, as required by another provision of that section, the metes and bounds as prayed for appear, unless the order in terms adopts them by specific reference thereto.</p> <p>2. City Limits — cannot be determined by unauthorized order of incorporation. In an action by a property owner to enjoin the collection of a tax levied upon his property by a city of the third class having a de facto corporate existence only, whether the property is within the corporate limits and subject to the levy is a question of fact to be determined from all the evidence adduced at the trial, and an unauthorized order attempting to incorporate the city is not competent evidence.</p>

<p>Error from Smith District Court. Hon. Cyrus Heren, Judge.</p>

<p>Error from Smith District Court. Hon. Cyrus Heren, Judge.</p>

Error from Smith District Court. Hon. Cyrus Heren, Judge. Held: a motion was filed by the defendants asking that that portion of the order of confirmation ordering a deed to be made to the purchaser be so altered as to afford to the defendants the benefit of the eighteen months’ redemption provided for in section 1, chapter 109, Laws of 1893.

Error from Clay District Court. Hon. R. B. Spilman, Judge. This action was begun to recover damages arising from trespassing live stock in Clay County, Kansas. The defendant was in default for answer. The court permitted him to file one instan ter. Upon the trial a demurrer to the evidence was sustained and judgment for costs rendered.

<p>Stay Bond — is void if judgment stayed is void. An undertaking for the stay of execution on a void judgment is also void for want of authority in the justice to take it, and such an undertaking cannot be enforced as an obligation at common law to pay the debt, being without lawful foundation and without consideration.</p>

<p>1. Pleading — petition io reform writing and to enforce it as reformed states one cause of action. A petition to reform a written contract so as to conform to the contract actually made, and to enforce said contract as reformed, states but one cause of action.</p> <p>2. Fire Insurance — under circumstances, insured may recover thoujh title in wife's name. Where a general agent of an insurance company applies to a property owner to insure him against loss by fire, and agrees to give him a certain amount of insurance for a premium agreed upon and paid, and the agent makes no inquiry as to the title of the lot upon which the property is located, and no misrepresentation or concealment is made by the insured, the company cannot, after a loss has occurred, avoid its liability therefor because the legal title to the lot was in the wife of the assured, while he had an insurable interest in the property burned in excess of the insurance thereon.</p>

.Error from Ottawa District Court. Hon. R. F. Thompson, Judge. The facts of this case, so for as they are necessary to understand the questions in this court, show that this was an action begun by Smith against Kreager to recover for money which Smith claimed that Kreager owed him. Kreager met this charge with allegations that he had a judgment against Smith which left a balance due him.

<p>1. Special Questions — evidence not justifying such answers as would authorize verdict, refusal of, not error. Where the evidence in a case would not justify such answers to special questions asked as would authorize a judgment for the party asking the question, it is not error for the court to refuse to submit such questions to the jury.</p> <p>2. Mortgage — principal and part interest secured by first, and balance of interest by second, held separate liens. Where a loan of money is evidenced by a first mortgage to secure the principal sum and a part of the interest, and a second mortgage to secure the balance of the interest agreed on, said mortgages constitute separate and distinct liens; and where the second mortgage is foreclosed and the mortgaged property sold subject to the first mortgage, the purchaser thereof does not take such title as will defeat the lien of the first mortgage.</p> <p>3. -and second foreclosed subject to first, purchaser for apportioned price estopped from asserting title against mortgagee. Where a person buys a piece of land with the distinct understanding that it is subject to a prior mortgage, for a price that would be unsconsoionable if for the full title, and the deed taken under said sale expresses on its face that it is subject to the first mortgage, such purchaser is estopped from asserting his title as against said first mortgage.</p>

<p>Error from Clay District; Court. Pión. R. B. Spilman, Judge.</p>

<p>Error from Cloud District' Court. Hon. F. W. Stui’ges, Judge.</p>

Error from Republic District Court. Hon. F. W. Sturges, Judge. On the first day of February, 1887, M. W. Ward and Thomas Ward, who were partners in business, were indebted to the plaintiff in error. On that date they made their three promissory notes, payable in one, two and three years after date to the order of the plaintiff.

Error from Saline District Court. Hon. N. P. Thompson, Judge. This was ejectment, brought by defendant in error in the District Court of Saline County. The defendant below claimed under a tax deed. It was conceded that, unless he had been deprived of title by the tax deed, plaintiff below should have recovered. The judgment of the lower court was against the tax-deed holder.

<p>Error from Marshall District Court. Hon. R. B. Spilman, Judge.</p>

<p>1. Practice — unverified answer to suit on note that plaintiff not real parly in interest, challenges title, and general demurrer properly overruled. An answer admitting the execution of, and the indorsements upon, a promissory note, but denying all other allegations of the petition, and alleging “that the action is not brought in the name of the real party in interest,” puts in issue the ownership of such note, and challenges the right of the plaintiff to recover thereon. A general demurrer to such answer as a whole was properly overruled. A demurrer which reaches the whole pleading cannot be sustained if the pleading is good in part.</p> <p>2. -permitting filing of pleading out of time wholly in discretion of trial court. The right of the trial court to grant leave to file pleadings is found in section 108, Code of Civil Procedure. This section .leaves the matter of allowing pleadings to be filed after answer wholly in the discretion of the trial court.</p> <p>3. -exception to remarks of counsel must be taken at trial. No objection to the remarks of counsel at the trial can be considered by this court unless exceptions are taken at the time of the trial.</p>

<p>Error from Saline District Court. Hon. R. F. Thompson, Judge.</p>

<p>Error from Cloud District Court. Hon. F. W. Sturges, Judge.</p>

<p>1. Laws 1895, Ch. 140 — held constitutional. Chapter 140, Laws of 1895, entitled, “An act regulating the fees and salaries of the county treasurer, county clerk, county attorney, county superintendent, clerk of the district court, sheriff, probate judge, register of deeds, county surveyor and coroner of Mitchell County and prescribing penalties for the violation thereof,” is constitutional.</p> <p>2. -under, county treasurer of Mitchell County entitled, to salary of eighteen hundred dollars. Under the provision of section 1 of chapter 140, Laws of 1895, the county treasurer of Mitchell County is entitled to receive an annual salary of eighteen hundred dollars and no more, as full compensation for his services.</p>

<p>Error from Saline District Court. Hon. R. F. Thompson, Judge.</p>

<p>Contract or Sale — reservation of crops in letters constituting, of land enforced as contemporaneous with deed. Where the entire agreement for the sale and purchase of a farm consisted of letters, and the deed was executed, delivered, and accepted as the result of such correspondence and without any other or different agreement or contract, held, that such correspondence constituted a contract, and that such contract was contemporaneous with the deed, and that by such contract the grantor might reserve the immature crops.</p>

<p>Error from Cloud District Court. Hon. F. W. Sturges, Judge.</p>

<p>1. Order oe Attachment — may be amended. Tfie clerk of the court issued an order of attachment and inserted therein one hundred dollars as the probable costs instead of fifty dollars, as provided by the statute. This was an irregularity, but it did not avoid the writ. The court properly allowed the order to be corrected by amendment.</p> <p>2. Appraisement oe Attached Property — under-sheriff failing to participate in, does not invalidate. The failure of the under-sheriff to participate with the appraisers in the appraisement of the property, is not such an omission in the service of the writ as required the court to quash the writ or set aside the levy as to all the property.</p> <p>3. Certificate of Deposit — “payable when properly indorsed ” may be sued on without indorsement. In an action by the executor of one named in a certificate of deposit, which reads, “payable to the order of himself upon the return of this certificate properly indorsed”, it is not necessary to allege that the certificate was properly indorsed at or before a demand for payment was made.</p> <p>4. Verdict — properly ordered by the court, when. In a trial by jury, when the undisputed evidence in the case entitles the plaintiff to a verdict, it is not error for the court to give a binding charge for the jury to return such verdict, notwithstanding there was some evidence upon behalf of the defense.</p>

<p>Error from Cloud District Court. Hon. F. W. Sturges, Judge.</p>

<p>1. Criminal Pleading — information examined and held defective. An information charging ‘1 that on or about the fourth day of November, a. d. 1896, in the county of Lincoln and State of Kansas, one Luther Knoby did then and there unlawfully sell, barter and give away spirituous, malt, vinous and fermented intoxicating liquors, without taking out and having a permit therefor as provided by law, and then and there not being lawfully and in good faith engaged in the business of a druggist,” is not direct and certain as to the offense charged. It leaves the defendant uncertain as to which of the two offenses he will be required to meet — 11 without taking out a permit therefor,” or whether he is to meet the charge that the sale was made by him having a permit and “ not then and there being lawfully and in good faith engaged in the business of a druggist.”</p> <p>2. -information examined, and held sufficient. An information charging “that, on or about the twenty-fifth day of November, a. d. 1896, in the county of Lincoln and State of Kansas, one Luther Knoby did then and there unlawfully own and keep a place where intoxicating liquors were sold, bartered and given away in violation of law, and did then and there permit persons to resort for the purpose of drinking intoxicating liquors as a beverage, and intoxicating liquors then and there being kept for sale, barter and delivery in violation of law, such place being in a building located on lot 12, block 28, in the town of Sylvan Grove, in Lincoln County, Kansas, to the common nuisance of the people of said county and State, contrary to the statute in such cases made and provided,” sufficiently describes the location to sustain a judgment of conviction thereunder.</p>

<p>Error from. Geary District Court. Hon. O. L. Moore, Judge.</p>

Error from Lincoln District Court. Hon. W. G. Eastland, Judge. This is an action to foreclose a real-estate mortgage given by W. I. Graham. Graham had sued his wife, defendant in error, for a divorce. She, in her answer, asked a divorce and that the land in question, describing it, be given her. After her pleading making this demand was filed, the mortgage in question was given by her husband, in whose name the land stood. In the divorce proceedings she was awarded the land.

<p>Error from Republic District Court. Hon. F. W. Sturges, Judge.</p>

<p>1. Appellate Practice — ease-made may be ivithdrawn for authentication. A case-made may be withdrawn from the files for authentication, more than one year after the rendition of the judgment appealed from. McLaughlin v. Darlington, ante, p. 212, 50 Pac. Rep. 505.</p> <p>2. Judgment — transcript shoiuing proof submitted, not impeached for want of names of witnesses. A judgment entered by a justice of the peace which states : “The plaintiff submitted his proofs and demanded judgment. ... I do find that the defendants are indebted to the plaintiff in the sum of three hundred dollars as debt,” is not impeached by a failure of the justice of the peace to enter upon his docket the names of witnesses sworn, and at whose request.</p> <p>3. Summons — before justice of the peace must show nature oj claim. The bill of particulars set out a cause of action for damage for the wrongful taking and conversion of personal property, but the summons stated, “to answer to the action of Peter Forslund upon an account;” held, that the summons does not describe the cause of action in such general terms as to apprise the defendants of the nature of the claim sued on.</p>

<p>Error from Republic District Court. Hon. F. W. Sturges, Judge.</p>

<p>Error from Osborne District Court. Hon. Cyrus Hieren, Judge.</p>

<p>Appeal from Lincoln District Court. Hon. R. F. Thompson, Judge.</p>

<p>1. Promissory Note — release of one joint maker, not release of others except to extent of amount actually paid by him. The fact that one or more joint makers of a promissory note are released from liability thereon, does not release any of the other makers, except to the extent of the amount actually paid thereon by the party so released.</p> <p>2. -each joint maker primarily liable for whole amount due on. Each of the makers of a promissory note is primarily liable to the payee or holder for the whole amount due thereon.</p>

<p>Practice Before Referee — exceptions must be saved or Appellate Court will not review. In,order to have the Court of Appeals examine the evidence offered before a referee, the aggrieved party must save his exceptions to the findings of fact and file his motion for a new trial.</p>

<p>Pleading — petition showing upon face aetionbarred by Statute of Limitations, demurrable. Where the petition shows upon its face that the plaintiff’s cause of action was barred by the Statute of Limitations at the time said action was begun, a demurrer thereto upon the ground that said petition does not state facts sufficient to constitute a cause of action should have been sustained.</p>

<p>1. Change or Venue — properly granted where district judge is material witness. It is not error for the district court to grant a change of venue upon proof by affidavit, undisputed, that the judge of. the court is a material witness on behalf of the party moving for such change, and which proof discloses the facts which the party proposes to prove by such witness, and it appears therefrom that the evidence is material upon the trial of the issues in said case.</p> <p>2. Burden or Proop — when, as to delivery of note and mortgage is on plaintiff. In an action upon a note and mortgage for personal judgment and foreclosure, wherein the answer admits the signing but denies the delivery of the note and mortgage, under oath, the burden of proof is upon the plaintiff, and it is error for the court to place such burden upon the defendant.</p> <p>3. Payment by Garnishee — not justified unless record shows jurisdiction of all parties, and compelled to pay. In order to justify the payment of money under a proceeding in garnishment in the justice’s court, it must appear by the record of shch proceeding upon the face thereof that the justice obtained jurisdiction both of the defendant and garnishee, and that the garnishee was compelled by due process of law to pay the same.</p> <p>4. Special Findings — in this case improperly refused. The special findings of fact requested by the defendants to be submitted to the jury and refused by the court were addressed to material issues in the case, and it was error for the court to refuse to submit them.</p> <p>5. Homestead — proceeds of mortgage on, exempt. Money borrowed by a husband and wife on a mortgage upon their homestead, which the wife is induced to sign by representations on the part of the mortgagee and her husband that she shall have the same for the purpose of making improvements upon her home and buying cows to stock the same, cannot, without her consent, be appropriated by the mortgagee to the discharge of the antecedent debts of the husband.</p>

<p>Laws 1895, Ch. 271 — held to be constitutional. The plaintiffs, publishers of the county paper in Graham County, failed to file the proof of publication of notice of tax sale for the year 1893 within fourteen days after the last issue of the paper containing the notice, as required by paragraph 6957 of the General Statutes of 1889. The Legislature of 1895 passed a special Act (ch. 271, Laws 1895) curative of this irregularity, and requiring the county of Graham to pay the plaintiffs their fees for such publication. This special Act does not violate the provisions of section 17 of article 2 of the State Constitution. The title of the special Act, which is as follows, “An act to legalize the printer’s affidavit of the publication of notice to sell real estate for delinquent taxes and the filing of the same, and the collection of taxes and charges thereunder by the county treasurer in the county of Graham, State of Kansas, in the year 1893,” clearly expresses the subject-matter of the bill, and the Act does not violate the provisions of section 16 of article 2 of the Constitution. The fourteen days within which the proof of publication is to be filed begins to run from the date of the last issue of the paper containing the notice of sale.</p>

<p>Error from Rawlins District Court. Hon. A. C. T. Geiger, Judge.</p>

<p>Question oe Fact — whether store furnishings 'part of realty is. The question as to whether or not the counters, shelving, drawers, and a prescription case in a drug store, are a part of the real estate or remain personal property, is largely a question of fact'; and having been determined by the trial court upon the evidence, its findings thereon will not be disturbed by this court.</p>

Error from Graham District Court. Hon. Chas. W. Smith, Judge. The plaintiff in error held a deed to three tracts of land in Graham County, his supposed title coming through one who had entered the land and to whom final certificates, but no patent, had been issued. Afterwards, these final certificates were canceled by the Federal Government and the title in that manner failed.

<p>Error from Franklin District Court. Hon. A. W. Benson, Judge.</p> <p>This is a suit on a “lightning-rod” note. One Webb, by representing that a large part of the rod •would be furnished free, induced C. S. Cox and his wife to sign a contract for the rodding of Cox’s barn. Afterwards plaintiff in error superintended the putting up of the rod, and demanded in payment one hundred and seventy-four dollars. Cox protested, but finally yielded to pressure and threats on the part of Crane, and gave him twenty-five dollars in cash and two notes payable to F. J. Webb or bearer, one for forty-nine dollars, and one for one hundred dollars. The forty-nine dollar note was sold by Crane to Goodin. Crane guaranteed the payment of this note. Goodin sued Cox and Crane on this note. Cox set up that it was obtained by fraud and was without consideration, and also that he had been obliged to pay to an innocent holder of the other note one hundred dollars and interest thereon. He asked that the forty-nine dollar note be canceled, and that he have judgment against Crane for one hundred dollars and interest. The answer also alleged, that Cox’s mind was weak and his understanding not strong, and that Webb and Crane knew his condition ; that Webb overreached him by getting him to sign a contract purporting to be in duplicate but not really so, one of which was read by Webb to him, and left with him, and the other taken by Webb and turned over to Crane ; that according to the counterpart kept by him and the figures made at the time the pretended duplicates were signed, the lightning rod would have cost only $22.50 ; that when Crane came to put up the rod he induced Mrs. Cox, in the absence of her husband, to give him their counterpart of the contract, and that Crane, after he had put up the rods, refused to show it to Cox but figured from the one which Webb had taken with him ; and that Cox never knew until that time that there was any difference in the pretended duplicates, having relied on Webb’s representations regarding them.</p> <p>The answer also averred that Crane threatened that if Cox did not sign the notes he would send the sheriff after him ; that he would not allow part of the rod free, as Webb had promised and as was stated in the counterpart of the contract Cox had held; that if he did not sign them he would make him pay $243 and costs ; that Cox believed he could do as he threatened, and that Crane otherwise intimidated him. The evidence was conflicting on some points, but it appears that Cox was a deaf-mute until he was about twelve years old, and that he was taught in an institute for the deaf and dumb in the State Illinois, and also in a similar institute in the State of Kansas, to speak, . and to understand what was said by others; but such understanding came more from close observation of the lips of the one speaking than from any improve-' ment in his hearing. He could read and write and was fairly well versed in arithmetic. He was honest and of a trusting disposition, believing every man honest until convinced to the contrary by evidence of dishonesty. He was also timid and excitable. His brother advised him generally in important transactions. There was evidence tending to sustain the averments of his answer.</p> <p>The contract was not introduced in evidence, but a blank exactly like that on which it was written was introduced. It contains an agreement to pay seventy-five cents per foot for-number of feet of rod, and the following consecutive sentences, the first of which runs to the end of the line :</p> <p>‘ ‘ Points and braces to be counted as twenty feet of rod Each, said building to be ornamented free of cost.”</p> <p>There was no period after the word “rod,” and it seems that Crane’s plan was to read these two sentences together to the end of the word “each,” and to figure accordingly. In this way the amount to be paid was greatly increased.</p> <p>The verdict of the .juiy was for Cox as against Goodin and as against Crane, but the court entered judgment for Gooodin as against Cox, upon the special findings of the jury, on the ground that Goodin was an innocent purchaser. Judgment was also rendered for Cox against Crane for $108.50, upon the verdict of the jury.</p>

<p>Error from Crawford District Court. Hon. J. S. West, Judge.</p> <p>Miles Toomey, plaintiff below, filed Ms petition in the District Court of Crawford County, alleging in substance that he was employed by defendant — plaintiff in error — as a switchman, to work at night; that on November 19, 1890, in the nighttime, at a point on the main line of defendant’s road, about one mile east of the city of Litchfield, and while riding on what is commonly known as the foot-board of a switch engine and tender, he was injured.</p> <p>“Plaintiff further avers that the foot-board of said engine was defective in this : that the end thereof at the right-hand side of the engine — as it was going east — was much lower than at the other side of said engine ; that said foot-board slanted downward from said engine and tender, when it should have been level in all directions ; that one end of said foot-board — the end on the right hand of said engine and tender as it was going east — had theretofore been shoved partly under the end of said tender, and was then in said condition.</p> <p>“ That the track of said defendant’s road was defective in this : that a short distance east of the place where the Atchison, Topeka & Santa Fe railroad crosses defendant’s road, in the eastern portion of said city, the ends of some of the rails were mashed down so that it became and was unsafe for engines and cars to pass thereover; that said defendant in the exercise of reasonable care could have known, and in fact did know, the defective condition of said engine, and of said railway track, as above stated ; that the condition thereof was wholly unknown to this plaintiff. While plaintiff was so standing on the south end of said defective foot-board of said tender, the wheels of said engine and tender struck a place where the ends of said defendant’s railway tracks were mashed down, causing said engine to bounce upward and come violently down upon said track; that by reason of said defects in said track and said defective condition of said foot-board, as hereinbefore set forth, plaintiff’s feet were thrown from said foot-board, his right foot caught on a tie, and by reason of the forward motion of said engine, both bones of his right leg were broken about three inches above his ankle joint; that said injuries so sustained by plaintiff were the direct result of the negligence of the defendant, as hereinbefore set forth ; that plaintiff was free from fault or negligence on his part; . . . that said injuries so sustained by him are permanent.”</p> <p>The defendant below filed its answer containing a general denial and settingup contributory negligence. The case was tried to a jury. A verdict was returned in favor of the plaintiff for $650. The court rendered judgment upon the verdict. A motion for a new trial was overruled and the defendant below brings the case here for review.</p>

Error from Crawford District Court. Hon. J. S. West, Judge. The petition alleged that plaintiff’s intestate was killed while on a local freight Jrain of the defendant Company, by the gross and wanton negligence of the Company, its agents, servants, and employees. The answer, besides a general denial, averred that the alleged injury was caused by the negligence of the deceased.

<p>Error from Chautauqua District Court. Hon. M. G. Troup, Judge.</p>

<p>Commission' — agreement for real-estate agent's, waived by after-wards negotiating netv sale under different agreement for. Where an agent to sell land negotiated a sale which his .principal refused to complete, and such agent probably became entitled to a certain commission, but made no demand for the same, and confined to act as agent for the sale of the land, and afterwards the land was sold through his agency and conveyed by his principal, under a new contract for commission, held, that the agent waived any right he may have had under the first sale, and is bound by his last agreement as to the amount of his commission.</p>

<p>Error from Franklin District Court. Hon. A. W. Benson, Judge.</p>

<p>Efror from Miami District Court. lion. John T. Burris, Judge.</p>

Error from Labette District Court. Hon. J. D. McCue, Judge. This was an action asking a permanent injunction to restrain the County Clerk of Labette County from issuing a tax deed on certain lots in the city of Oswego in that county. Rivers had sold the lots to Bayless. Taxes on them were due, but Bayless took the property subject to the tax lien without assuming and agreeing to pay it.

<p>1. Proceedings in Error — final judgment on demurrer necessary to. Proceedings in error may be taken from a ruling of the trial court sustaining a demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action, notwithstanding the fact that the record fails to show that a final judgment for costs was entered.</p> <p>2. Exemption — Res Adjtjdicata — resident of Kansas temporarily in Arkansas cannot claim property seized in Arkansas to be exempt except in action in which it is seized. A petition in an action for damages for the unlawful taking by attachment of certain chattels of plaintiff, alleged that plaintiff was a resident of the State of Kansas, and defendant a corporation organized under the laws of the State of Missouri; that the property was taken in an action brought in the State of Arkansas, whei e plaintiff was temporarily staying, for a debt contracted wholly in Kansas, where the defendant was conducting a mercantile business; that said property was exempt in Kansas, but not exempt where seized; that plaintiff notified defendant at the time of the levy, and also the sheriff who made the levy, that he claimed the property as his exempt property; and that he did not interpose any defense whatever in the attachment action, allowing it to proceed to a judgment, and the attached property to be sold without any further protest or effort on his part. Held, that a demurrer to the petition was properly sustained.</p>

<p>Error from Anderson District Court. Hon. A. W. Benson, Judge.</p>

<p>1. Appellate Procedure — instructions all considered together, and incompleteness or inaccuracy of one not ground for reversal, if as a whole correct. In determining the correctness of instructions, all must be considered together; and, if they state the law correctly, the fact that some particular instruction or part of an instruction is incomplete or inaccurate is not ground for a reversal.</p> <p>2. -■ if fair trial, no reversal for instructions refused or given not affecting preponderance of evidence. Where it appears from the record that a case has been fairly tried, and the verdict is sustained by the greater weight of evidence, it will not be set aside because of the improper giving or refusing of instructions not affecting the preponderance of the evidence.</p>

<p>Estoppel — dismissal of appeal and payment of part of judgment work an. estoppel. Where, in a suit to recover damages for breach of a redelivery bond given in a replevin action, it appeared that one of the plaintiffs in error, the principal of the bond, had appealed from - a judgment of the justice of the peace which awarded to defendant in error a return of the property and damages for its detention, and that, at the request of the appellant, the appeal was dismissed at his cost, and that he afterwards paid the damages thus awarded but wrongfully kept the property, held, that such acts work an estoppel to contest anything done in the replevin action.</p>

<p>Appeal' from Miami District Court. Hou. John T. Burris, Judge.</p> <p>Appellant was convicted in the police court of the City of Fontana, and on appeal in the District Court, of selling two glasses <Jf hop tea contrary to the provisions of the following ordinance of the City of Fontana :</p> <p>“Ordinance No. 33. — An ordinance prohibiting the .sale of hop tea and other liquors containing alcohol in insufficient quantities to intoxicate and commonly used as a beverage.</p> <p>“ Be it ordained by the mayor and councilmen of the City of Fontana :</p> <p>“ Section 1. It shall be unlawful for any person, within the corporate limits of the city of Fontana, Kan., to sell or barter hop tea, hop tonic, hop tea tonic, or any other liquors • containing alcohol in, insufficient quantities to intoxicate and commonly used as a beverage.</p> <p>“Sec. 2. Any person violating any of the provisions of this ordinance shall, upon conviction thereof, be fined in any sum not less than twenty-five dollars nor more than a hundred dollars, and costs of suit.</p> <p>“Sec. 3. This ordinance shall take effect and be in force on and after its publication in the Miami Republican.”</p> <p>In the District Court the case was tried before the court, a jury having been waived, and its judgment was based upon the following agreed statement of facts, which constituted all the evidence in the case :</p> <p>“1. That the City of Fontana is now, and has been for many years, a city of the third class, existing under and by virtue of the laws of the State of Kansas.</p> <p>“ 2. That on or before the sixth day of May, 1895, said City of Fontana, by its mayor and councilmen, passed ordinance number 33 of said City, which said ordinance was signed by the mayor of said City, legally published in the Miami Republican, a weekly newspaper, on the tenth day of May, 1895, and recorded by the city clerk in the book of ordinances of said City at page 44, and is now in full force and effect— a true copy of said ordinance being hereto attached, marked ‘ exhibit A’ and made a part hereof. Provided, however, that nothing herein shall be construed as admitting the validity of said ordinance.</p> <p>“3. That in said City of Fontana, Kan., on or about the fifth day of May, 1896, defendant, Ed. Grant, for a valuable consideration in money, sold and delivered to one Jack Henness two glasses of hop tea.</p> <p>“ 4. That the complaint filed herein is based solely on said sale and said ordinance number 33.</p> <p>“5. Said sale above referred to was known to the person filing said complaint at the time the same was filed.</p> <p>“6. It is agreed by the parties hereto that the hop tea sold as herein stated is a malt liquor containing about two per cent, of alcohol, and is not an intoxicating liquor.”</p>

<p>1. Live-Stock Contract — rules at top of contract form no part of contract. Where a railroad company prints rules and regulations for the transportation of live stock, at the top of a sheet of paper on which is printed the live-stock contract, and in the contract refers to the rules and regulations as follows: “ That whereas ♦the said St. Louis & San Francisco Railway Company as aforesaid transports live stock only as per above rules and regulations,” held, that the rules and regulations form no part of the contract.</p> <p>2. Carrier’s Common-Law Liability — cannot be changed by contract, except in accordance with regulations of Board of Railroad Commissioners. A provision of a contract made by a railroad company with a shipper to transport stock or other property from one point to another in this State, that changes or limits the common-law liability of the company as a common carrier, except when made as provided by regulation or order of the Board of Railroad Commissioners, is void.</p> <p>3. -for gross and culpable negligence not limited by contract. A common carrier cannot by contract limit its liability resulting from the gross and culpable negligence of its servants and employees.</p>

<p>Error from Franklin District Court. Hon. A. W. Benson, Judge.</p>

<p>Homestead — absence from, with intention of returning to, is not abandonment of. Where the owner of a farm, has established her homestead thereon, she may leave the same for a temporary purpose with the intention of returning, and if during all the time of such absence she retains that intention and refrains from establishing a homestead elsewhere, she has not abandoned the farm as her homestead.</p>

<p>Error from Neosho District Court, Hon. L. Still-well, Judge.</p>

<p>Error from Osage District Court. Hon. William Thomson, Judge.</p>

<p>Error from Linn District Court. Hon. J. S. West, Judge.</p>

<p>Appeal Bond — sureties on, liable only for amount named in. The sureties upon an undertaking in appeal from a justice of the peace are liable for the whole amount of the debt, costs and damages, provided the same does not exceed the sum nominated • in the undertaking.</p>

<p>Error from Eranklin District Court. Hon. A. W. Benson, Judge.</p>

<p>Error from Crawford County District Court. Hon. J. S. West, Judge.</p>

<p>Error from Woodson District Court. Hon. L.-Still-well, Judge.</p>

<p>Error from Montgomery District Court. Hon. J. D. McCue, Judge.</p>

<p>Appellate Jurisdiction— Thrall v. Fairbrother, 1 Kan. App. 482, followed. ‘1 The pleadings and the agreed statement of facts show that the amount in controversy, and for which judgment could have been legally rendered, exclusive of costs, in the court below does not exceed one hundred dollars. Held, that this court has no jurisdiction to hear and determine the case, and that the case must be dismissed from this court, although no question of jurisdiction was raised by either party.” Thrall v. Fairbrother, 1 Kan. App. 482.</p>

<p>Error from Franklin District Court. Hon. A. W. Benson, Judge.</p>

<p>Quitclaim Deed — purchaser by, is not purchaser in good faith. A purchaser of real estate, conveyed to him by quitclaim deed, is not a “purchaser in good faith ” so that his title will be protected by the provisions of section 77 of the Civil Code.</p>

<p>Error from Neosho District Court. lion. L. Still-well, Judge.</p>

<p>Error from Allen District Court. Hon. L. Stillwell, Judge.</p> <p>'■ This action was commenced in the District Court of Allen County, Kansas, by Crowell, as plaintiff, against the Chanute National Bank, E. J. Nooner and A. P. Gibson, to recover judgment upon certain bank checks drawn by Nooner upon the Bank and held by Crowell.</p> <p>Crowell and several others living at Humboldt, Kan.-, sold stock to Nooner — a partner of Gibson in buying stock — and received inpayment the individual check of Nooner drawn upon the plaintiff in error. The oheclcs were cashed at the Humboldt First National Bank, and were forwarded to the Chanute National Bank for payment. Payment was refused and the checks protested. The check holders paid the Humboldt Bank, and the other check holders assigned their checks to Crowell.</p> <p>Nooner and Gibson, during this transaction, were partners in buying and shipping stock, but kept their bank accounts in their individual names ; and when either of them bought stock he gave his individual check upon the Chanute National Bank in payment thereof. They would then ship the stock to market and have the proceeds arising from the sale deposited with the National Bank of Kansas City, Mo., to the credit of the Chanute National Bank. After .the partnership between Nooner and Gibson was formed,, it was understood between them and the Chanute National Bank that the Bank would pay the checks drawn by either member of the firm in their business, and that the proceeds arising from the sale of stock should be remitted to the Bank to reimburse it for paying such checks ; and this was repeatedly done.</p> <p>At the time the checks sued on were presented for payment and protested, the Chanute National Bank was owing to the partnership of Nooner and Gibson, on account of money received by them from the sale of the stock bought at Humboldt by Nooner, the sum of $700.22, and the Bank knew that the money belonged to Nooner and Gibson as proceeds arising from their partnership business. These facts were found by the jury upon the questions submitted to them.</p> <p>The Chanute National- Bank refused to pay these checks, and applied the money to the payment of an individual indebtedness owing to it by Nooner, which had been contracted prior to the partnership transactions referred to. Judgment was for Crowell. The Bank brings these proceedings.</p>

<p>Error from Bourbon District Court. Hon. J. S. West, Judge.</p>

<p>1. False Imprisonment — a void warrant confers no authority to arrest. A warrant void upon its face confers no authority upon which an officer is justified in making an arrest; and an officer cannot apprehend a person under such a warrant, it having been read to the prisoner as the authority under which the arrest is made, and then, in an action for false imprisonment, be heard to say that he made the arrest upon the information and belief that a felony had been committed and that the person arrested was guilty of its commission.</p> <p>2. -sheriff is liable for acts of deputy. A sheriff is liable for the acts of his deputy; and if such deputy assists in the arrest of a person under a void warrant, and confines such person in the county jail, the sheriff is liable in an action for false imprisonment.</p>

<p>1. Corporation — directors cannot change par value of shares. Directors of a Kansas corporation have no authority to change the number or par value of the shares of its capital stock as set forth in its charter.</p> <p>2. -may, by vote and certificate, increase the capital stock. The only provision in respect to any change in the capital stock of a corporation after it is organized, is found in paragraph 1171, General Statutes of 1889, which empowers the stockholders to vote an increase of the amount of its authorized capital, and said section requires a formal, certificate of such increase to be made by the directors and to be filed and recorded in the same manner as the charter.</p> <p>3. - shares increased by vote of directors only, void. Where the directors of a corporation, who had voted to increase the par value of its stock from one dollar each, as the charter provided, to five dollars each, thereafter and without any other authority than such vote, issued shares purporting to be of the par value of five dollars each, held, that such shares were void.</p> <p>4. -persons taking increased shares as evidence of loans merely, not liable. Where persons, who had taken such invalid shares of stock and afterwards returned the same and received from the corporation the money they had paid for it, under a parol agreement made at the dates of the transactions that such shares were to be held as collateral security for such loans, were sued by the receiver of such corporation, after its insolvency, to recover the money so repaid, and it appeared that certain debts which were contracted by the corporation while such stock was outstanding remained unpaid, held, that such parties were not liable as stockholders of said corporation to the creditors represented by the receiver, and that it was error "to render judgments against them in favor of the receiver for the amounts returned to them as aforesaid.</p>

<p>1. Appellate Practice — errors not excepted, to, and bill of exceptions not allowed, not considered. The Appellate Court cannot consider alleged errors which have not been properly excepted to, nor a bill of exceptions not properly allowed by the court, and where the alleged errors are insufficient to cause a reversal of the judgment of the district court, such judgment will be affirmed; but none of these questions are grounds for dismissing the petition in error.</p> <p>2. -no motion for new trial, only question whether conclusions of law and judgment are sustained by findings. In an action for an injunction in which affidavits are introduced in evidence, and in which no motion for a new trial has been filed, we can only determine whether the conclusions of law and judgment are supported by the findings of fact made by'the courtl</p> <p>3. Homestead — abandonment of, determined by intention. A homestead having been once established, it is a question of intention as to whether it has been abandoned. The intention may be shown by the acts and declarations of the person claiming the homestead, but if he leaves it temporarily, intending to return and occupy it as a homestead, the homestead continues as long as the intention remains.</p>

<p>Contract — for an annual pass is a divisible eontraet. A contract to issue or procure the issuance of an annual pass to be renewed from year to year during the pleasure of the promisee, is a divisible contract, and the measure of damages for the breach thereof is the value of the transportation to such promisee during the years the breach has occurred ; and an action may be maintained by the promisee for only such breaches as have occurred at the time of the commencement of the action.</p>

Error from Bourbon District Court. Hon. W. C. Perry, Judge pro tern.

<p>Corporation' — written instrument valid subscription to stock of; date of payment fixed in, no demand necessary. A valid subscription for shares in a corporation is a written instrument within ¡ the meaning of our statutes and may be made the basis of an action. Where the dates of payment for such stock are fixed by the written instrument, no demand is necessary.</p>

<p>1. Parties — sheriff attempting to levy tax warrant is proper, to injunction. In a proceeding to enjoin a sheriff from selling property by virtue of a tax warrant, w(here the only question is the character or ownership of the specific property, the sheriff is the actual and real party defendant, and not the municipalities to which the tax is due, the latter not having applied to the trial court to be made parties defendant.</p> <p>2. - defect of, must be taken advantage of in pleadings. A defect of parties must be raised by pleading; and, when not so taken advantage of, will not be considered by this court on error.</p> <p>3. Fixtures — articles of machinery in flouring mill are. The terms “mills” and “flouring mill” include the machinery necessary for the operation of the same as well as the buildings; and where such is a mortgagee’s security for a large indebtedness, it will be presumed, the contrary not appearing, that the removal of the machinery, thereby rendering the property valueless for its purpose, will impair the security. All things used in a mill, which are a part of a complete system and of the machinery necessary to its operation and which have been placed therein by the owner of the realty with intent to make the same permanent, are fixtures and covered by a mortgage upon such mill.</p> <p>4. Principles oe Review — questions for review must he presented to trial court. Questions not presented to the trial court cannot, for the first time, be considered by this court.</p>

<p>Error from Neosho District Court. Hon. L. Still-well, Judge.</p>

<p>Error' from Cherokee District Court. Hon. J. D. McCue, Judge.</p>

<p>Error from Crawford District Court. Hon. J. S. West, Judge.</p>

<p>1. Laws 1895, Oh. 126 — held to be constitutional. Chapter 126, Laws of 1895, is not in conflict with sections 16 and 17 of article 2 of the Constitution of the State of Kansas. It contains but one subject which is clearly expressed in its title.- It contains the new law as amended, and all other acts relating to the subject are repealed by said section 16 without legislative declaration to that effect.</p>

<p>Chattel Mortgage — given in good faith to secure contingent liability, but purporting to be for absolute debt, not void, as to creditors. A mortgage which, upon its face purports to secure an absolute indebtedness, when in fact it is given in good faith to secure the mortgagee against a contingent liability as surety, is not void as to creditors of the mortgagor.</p>

<p>1. Executor — is proper person to bring action on insurance policy when loss occurs after decease of testator. When a petition alleges that the plaintiff is the duly qualified and acting executrix of the last will of a person who procured a policy of insurance upon a dwelling house, but who died before the loss occurred, held, that such executrix is the proper person to maintain an action to recover upon a loss occurring under the policy, and that the allegations of the petition are sufficient to show her right to maintain the action.</p> <p>2. Civil Procedure — Rice v. Hodge, 86 Kan. 164, followed as to time of making up issues. The case of Rice v. Hodge (26 Kan. 164), and others, cited and followed as to the time the issues ara made up and the case is triable.</p> <p>3. Insurance — risk increased by another than the policy holder? policy not void. When a fire insurance policy contains a clause-which provides that the policy shall be null and void if the risk be-increased in any manner except by the erection and use of ordinary outbuildings, such clause applies to anything done either directly or indirectly by the insured, and not to those things which are done by another, over which the insured has no control, and! of which possibly he may not even have had notice.</p> <p>4. Action Commenced — attempt in good faith is sufficient, Where an attempt is made to commence an action on January 29, 1891, by filing a petition in the district court and causing the issuance of a summons thereon, the service of which is afterwards set aside, and where an alias summons is issued on February 12 and properly served on February 14, 1891, held, that under paragraph 4097 of the General Statutes of 1889 the action will be deemed to have been commenced on said January 29.</p>

<p>Summons — returned after return-day neither void nor voidable. Where a summons is made returnable in nine days from the day of its issuance, and is served one day before the day upon which it is made returnable and twenty-one days before the defendants are required to answer, the summons and the service thereof, and a judgment rendered thereon upon default by the defendants, are neither void nor voidable because of the failure of the sheriff to return such summons and file the same with the clerk of the district court until the day after the return-day.</p>

<p>Error from Sedgwick Court of Common Pleas. Hon. Jacob M. Balderston, Judge.</p>

<p>Error from Sedgwick Court of Common Pleas. Hon. Jacob M. Balderston, Judge.</p>

<p>Error from Harvey District Court. Hon. F. L. Martin, Judge.</p>

<p>1. Revivor in Appellate Court — what service for, is sufficient. A notice for an order of revivor in an action in the Court of Appeals may be served upon the adverse party or his attorney of record by delivering a copy of the notice to either of them personally, or by leaving such copy at the usual place of residence of either of them, or by securing an acknowledgment of service from either of them; or such party or his attorney may waive, in writing, the issuing or service of the notice. Ten days is all the notice required to be given of an application for an order of revivor in the Court of Appeals.</p> <p>2. - authority of person in whose name revivor is asked determined on hearing application for. There is no necessity of, or provision for, an amended petition to show the authority of the parties brought into this court by reyivor. The way to raise this question in this court is upon the hearing of the application for the order of revivor, or upon a motion to dismiss.</p> <p>3. Administrator or Executor — proper person to sue for dam" ages accruing to land of deceased in his lifetime. The administrator or executor of a deceased person is the proper party to maintain an action for damages which accrue to the real estate of the deceased during his lifetime.</p> <p>4. Evidence Conflicting — improper for court to direct verdict. Where the evidence of the plaintiff tends to show his right to recover and is sufficient to sustain a judgment except for the conflicting evidence of the defendant, it is error for the court to direct the jury to return a verdict for the defendant.</p>

<p>Error from Lyon District Court. Hon. Charles B. Graves, Judge.</p>

<p>Error from Cowley District Court. Hon. M. G. Troup, Judge.</p>

<p>Prohibitory Liquor Law — on information for keeping a nuisance, sales other than those of which prosecuting witness has knowledge may he proven. Where the testimony filed with the information fully discloses the fact that the offense of keeping a common nuisance has been committed, it is not error for the court to submit to the jury evidence showing sales of intoxicating liquor other than the ones of which the prosecuting witness had knowledge.</p>

<p>1. Demurrer to Evidence — erroneously sustained, error not cured by defendant’s evidence. Where a demurrer to the evidence of the plaintiff is improperly sustained, the error cannot be cured by the evidence which may be given by the defendant under paragraph 4267 of the General Statutes of 1889. The plaintiff is entitled to have conflicting evidence submitted to the jury.</p> <p>2. Sheriee’s Deed — conveys only property described. Where the pleadings, judgment, order of confirmation and sheriff’s deed limit the description of the property conveyed by said deed to a tract of land and the buildings, machinery, appurtenances and fixtures situated thereon, the purchaser cannot claim under such sheriff’s deed the boilers, pumps, pipes and other machinery located upon the land of strangers and used in supplying water for the use of the mill on the land described, as well as for the use of a city.</p>

<p>Appeal from Lyon District Court. Hon. W. A. Randolph, Judge.</p>

<p>1. Address to Jury — in judging of improper statements in, strength of evidence considered. In determining the effect of improper statements made by a county attorney in his closing argument to the jury, the strength of the testimony offered against the defendant will be considered.</p> <p>2. -in particular case, conviction reversed, on account of county attorney's. In this case — the strength of the testimony considered' — held, that the improper statements made by the county attorney in his closing argument to the jury may have determined the verdict.</p>

<p>1. Rescission or Contract — on account of fraud must be acted upon promptly. Where a threshing machine sold and bought as new was in fact an old one repaired and repainted, and where the purchasers knew this to be true within three days after they obtained the machine, but thereafter paid, without objection on this ground, one of the notes given for its purchase, held, that they waived the fraud in the sale, and the same did not furnish ground for the recovery of damages.</p> <p>2. -right to rescind waived. Where the purchasers of a machine, having been sued upon the last two of three notes they had given in purchase of the machine, set up as a ground for recovery of damages against the plaintiff the failure of the machine to work properly, resulting in loss to such purchasers, and where it appeared that they had retained and used the machine for 120 days, held, that the only remedy the purchasers had was to recover damages of the vendors by reason of the breach of the warranty. Weybrich & Co. v. Harris, 31 Kan. 91.</p> <p>3. Instruction — examined. An instruction to the effect that the jury might credit the vendors with the actual value of the machine, “ whether it was as a machine, or as old iron, or anything else of value,” with no reference to the contract price, held, erroneous, under the authority of Weybrich & Co. v. Harris, supra.</p>

<p>Error from- Barber District Court. Hon. G-. W. McKay, Judge.</p>

<p>Mechanic’s Lien — building “ commenced” when foundation begun, though not made under contract. In this case the “commencement of the building,” within the meaning of the Mechanics’ Lien Law, held to be the time work was begun on the foundation thereof, notwithstanding the foundation was made by the owner himself, or under his direction, and not under a contract.</p>

Hon. A. M. Jackson, Judge. This was a criminal appeal from a justice of the peace.

<p>1. Promissory Note — holder of, as collateral, same as owner. A person who holds a promissory note as collateral security is the owner and holder thereof, as'between such person and the payors of the note, the same as if such person were the purchaser of said note.</p> <p>2. -payment of, must he to holder or his agent. The payment of a note must be made to the owner and holder thereof or to his agent authorized to receive such payment.</p>

<p>1. Appearance — general, cures defects in service. The general appearance of the plaintiff to contest a motion to vacate an order of arrest, cures any defect in the notice by which the court obtains jurisdiction to hear and determine such motion.</p> <p>2. Arrest and Bail — upon hearing of application for arrest court should follow Code. A court or judge, in allowing an execution against the person of a judgment debtor, can only consider such grounds therefor as are included in the affidavit required by section 507 of the Code.</p> <p>3. - order for a,rrest may be vacated. A court or judge who allows an execution against the person of a judgment debtor, has the power to hear and decide a motion to vacate the order of arrest.</p> <p>4. Order — reason given for, no pg,rt of. A statement made by a judge purporting to be a reason for his ruling, is no part of his order.</p>

<p>Setting Aside Judgments — discretion of court in, at term at which rendered is great, but conformity to statute is required after term has expired. A trial court has a very wide and extended discretion in setting aside and modifying proceedings had in its own court if it does so at the same term at which the proceedings are had. Hemme v. School District, 30 Kan. 377. But after final judgment has been rendered and the term expires, there must be a substantial compliance with the statute to give the court further jurisdiction, which was not done in this case.</p>

<p>New Trial — should be granted when jury ignores the instructions. Where the jury plainly disregards an instruction of the trial court, it is the duty of the court to set aside the verdict; and where a record is presented to the Appellate Court which shows that a verdict is contrary to the law of the case as presented'to the jury under proper instructions, a new trial will be ordered notwithstanding the court rendered judgment in accordance with such verdict.</p>

<p>1. Execution against Stockholders — return, “no goods,” is condition precedent to. The issuing of an execution and the return of the same nulla bona is a condition precedent which must be fulfilled before the court can obtain jurisdiction under paragraph 1192, General Statutes of 1889. Lumber Co. v. Neal, 3 Kan. App. 399.</p> <p>2. -return examined. The following return, “Finding no property whereon to levy to make the amount of this execution, I now return this writ,” held, not to be a return nulla bona.</p>

<p>Error from Sedgwick Court of Common Pleas. Plon. Jacob M. Balderston, Judge.</p>

<p>Error from Sumner District Court. Hon. James A.' Bay, Judge.</p>

<p>1. Osage Indian Trust Lands — notice of contest to mortgagee ' not necessary. In a contest case involving the validity of an entry upon a tract of the Osage Indian Trust Lands, it was not necessary to notify the mortgagee of the tract, when it did not appear that he had filed a statement of his interest in the local land office.</p> <p>2. Condition Precedent — return of money not a, in this case. The return of purchase money is not a condition precedent to the cancellation of the entry in question.</p> <p>3. Decision of Land Officers — final between the parties and not subject to collateral attach. The decision of the land officers upon questions of fact in a contest case is conclusive upon the parties and is not subject to collateral attack.</p>

<p>Error from Cowley District Court. Hon. M. G. Troup, Judge.</p>

<p>Error from Reno District Court. Hon. L. Houk, Judge.</p>

<p>1. Pleading in Justice’s Court — no written answer required. The case of Map Go. v. Jones (27 Kan. 180) cited and followed as to the duty of the district court to require the defendant to file an answer in a case appealed to it from a justice of the peace.</p> <p>2. Verdict — supported, by some evidence, not disturbed. A verdict of the jury which has been approved by the trial court will not be disturbed where there is some evidence tending to support each fact necessary to sustain such verdict.</p> <p>3. Appellate Practice — error not specified, not considered. An assignment of error not specified and argued in the brief of plaintiff in error is considered waived.</p>

<p>Error from Sumner District Court. Hon. James A. Bay, Judge.</p>

<p>Error from Cowley District Court. Hon. M. G. Troup, Judge.</p>

<p>Appellate Jurisdiction — case-made settled after time expired and also without notice, does not confer. The case-made was settled by the trial judge eighty-one days after his term had expired and eighty-nine days after final judgment, without notice' to defendant in error or waiver of notice' — the record being silent as to notice or waiver thereof and as to the suggestion or waiver of suggestion of amendment — under an order made at the time of entering final judgment, as follows : “ And seventy days are given the defendant in' which to make and serve a case for the Supreme Court on the attorneys for plaintiff, and fifteen days thereafter are given plaintiff in which to suggest amendments, and the case to be settled on three days’ notice in writing to be given by either side.” Held, that such case-made was settled too late, under said order, and that the ex-judge had no authority to settle the same without the notice provided for in such order, or a waiver thereof.</p>

<p>Error from Sumner District Court. Hon. James A. Ray, Judge.</p>

<p>Case-Made — settled by judge pro tem. too late, invalid. Where in a case tried by a judge pro tem. the order of the court states that “the defendant was granted 225 days in which to make and serve a case-made for the Supreme Court,” and the case-made was settled by the judge pro tem. under such order 291 days after the date thereof, held, that the case-made is invalid.</p>

<p>1. Criminal Practice — judgment or verdict may be pronounced at term succeeding conviction. Where, after a verdict of guilty in an action against appellant for selling liquor in violation of a city ordinance, the court adjourned sine die and sentence was pronounced on the verdict at the next regular term of the court; and where, at said subsequent term of court, appellant filed a motion in arrest of judgment, with a purported bill of exceptions annexed thereto, setting forth that the court had adjourned at the former term a day earlier than counsel for plaintiff and for defendant had expected, that in consequence no bill of exceptions was prepared, and that the court had, by such adjournment before pronouncing sentence, lost jurisdiction to do so, held, that the motion states no statutory grounds for arrest of judgment, and that the same was properly overruled.</p> <p>2. Bill op Exceptions — allowed and signed at term succeeding one at which verdict was rendered, not considered. Where the trial court allowed and signed the purported bill of exceptions _ at such succeeding term, held, that the same cannot be considered by the Appellate Court. 'The State v. Smith, 38 Kan. 194.</p>

<p>1. Appellate Jurisdiction — reeorcl not showing amount in controversy, and certificate not showing case belongs to excepted classes, Appellate Court has no jurisdiction. Where neither evidence nor allegation is found in the record to show that the amount or value in controversy is over one hundred dollars, and there is no certificate in the record showing the case to belong to one of the excepted classes mentioned in section 542a of the Civil Code, it must be dismissed.- Packard v. Packard, 56 Kan. 132.</p> <p>2. - certificate must be part of, and filed with, record. The certificate referred to in the foregoing paragraph cannot be considered unless it was filed with, and as a part of, the record in the case sought to be reviewed.</p>

<p>Error from Cowley District Court. Hon. J. A. Burnette, Judge.</p>

<p>Error from Reno District Court. Hon. L. Houk, Judge.</p>

<p>Appeal from Sumner District Court. Hon. J. A. Burnette, Judge.</p>

<p>1. Information — held sufficient,. The information examined, and held to be sufficient.</p> <p>2. Jurisdiction — courts having concurrent, one first obtaining jurisdiction of person retains it. “Where two courts have concurrent jurisdiction of a criminal cause, the court first acquiring jurisdiction of the offense and of the person of the defendant re- • tains jurisdiction until the final determination of the case, to the exclusion of the other.” The State v. Chinault, 55 Kan. 326.</p> <p>3. Juror — knowledge of facts not sufficient to sustain challenge. “ Some of the jurors had impressions or beliefs as to the commission of the offense charged which were not of a positive and fixed character, but were derived solely from rumor and newspaper" statements, and they appeared to have been free from any bias or prejudice and to be able to fairly consider the testimony and render an impartial verdict in the case. Held, that the overruling of the challenge to the retention of such jurors is not sufficient ground for reversal.” The State v. Treadwell, 54 Kan. 513.</p>

<p>Appeal from Sumner District Court. Hon. J. A. Burnette, Judge.</p>

<p>Chattel Mortgage — funds arising from sale of mortgaged property distributed among claimants. Where, in a contest between a Guthrie bank, the holder of a second mortgage against a stock of goods in Oklahoma, and a Kansas corporation, the holder of a second mortgage against a stock in Kansas, which had both belonged to and been mortgaged by the same firm, and which were sold by the owner of first mortgages on each for the satisfaction of a single debt secured by such mortgages, the proceeds of neither sale being sufficient to discharge the entire first-mortgage debt but the total being more than sufficient; and where the first mortgagee retained and specifically set apart of the proceeds derived from the sale of the Oklahoma stock, which was the first one sold, an amount equal to the claim of the Guthrie bank, to be paid to the party entitled thereto, and such fund, prior to the suit by the said bank, had been deposited in a bank at Winfield, Kan., where the action was brought and the litigation had relating to the ownership of such fund, held, that the sale of the goods in Oklahoma did not have the effect to discharge ipso facto, to the extent of the proceeds thereof, the mortgage debt; and, held further, that, under the evidence, the creditors holding the paramount lien were under no legal obligation to apply in payment of their claim the entire proceeds of the sale first made.</p>

<p>. Error from Harper District Court. Hon. G. W. McKay, Judge.</p>

<p>1. Demurrer to Evidence — unless plaintiff has failed to prove his case, should be overruled. “ Where the defendant in a case which is being tried by a jury, files a demurrer to the plaintiff’s evidence, on the ground that the evidence does not prove any cause of action, held, that unless the plaintiff has utterly failed by all his evidence to prove his case, or some material fact in issue in the case, the demurrer should be overruled.” Brown, Adm'r, v. A. T. & S. F. Ely. Co., 31 Kan. 1.</p> <p>2. Evidence — incompetent and immaterial but not prejudicial, judgment affirmed. “A judgment will not be reversed on account of the admission of incompetent or immaterial evidence, not prejudicial to the party complaining.” ■ Moon v. Heifer, 25 Kan. 139.</p> <p>3. Contributory Negligence — degree of care by one approaching railroad crossing depends upon surrounding circumstances. The degree of care to be exercised by one approaching a railroad crossing must depend upon the obstructions, locations, surroundings and existing circumstances of each particular case, and, under proper instructions, is ordinarily a question of fact for the determination of the jury; and “in order that we may declare . that it was negligence, as a matter of law, for him to fail to stop, there must be an evident necessity under the circumstances that he should stop, and this must be made so certain that the minds ■ of reasonable men would not differ in regard to it.” C. E. I. & P. Ely. Co. v. Hinds, 56 Kan. 762.</p>

<p>Pleading and Practice — answer and evidence failing to make a defense, judgment reversed. Where an answer and the evidence in support thereof failed to make out any defense, the judgment of the trial court, which was manifestly controlled thereby, will be reversed, notwithstanding no objection to such answer and evidence was made by plaintiffs in the trial of the action.</p>

<p>1.. Mechanic’s Lien — to prevent, bond must be approved. To prevent liens from attaching under chapter 168, Laws of 1889, the bond provided for by section 13 of the Act must be approved and filed by the clerk of the district court in the county in which the property is situated.</p> <p>2. •-not defeated ivhen bond applies to one lot only, and building is on two contiguous lots. Where a single contract for an entire sum for the erection of one building on two lots is made, and the building is constructed, the foreclosure of a mechanic’s lien on the two lots cannot be defeated or discharged by the giving of a bond as to one lot only, as provided by the Laws of 1889, chapter 168, section 13.</p>

<p>Appeal from Lyon District Court. Hon. W. A. Randolph, Judge.</p>

<p>Error from Rice District Court. Hon. J. H. Bailey, Judge.</p>

<p>1. Order on Garnishee' — not subjet to judgment debtor’s collateral attack though property exempt. Where a justice of the peace renders a judgment against the defendant and makes an order requiring the garnishee to pay certain money into court, such judgment and order cannot be attacked by the judgment debtor in a collateral proceeding although the property in controversy may be exempt.</p> <p>2. Appellate Procedure — order of justice of the peace overruling motion to discharge garnishment after judgment, a final order. “Where a motion is made before a justice of the peace to vacate and discharge proceedings in garnishment after final judgment, and said motion is overruled, said ruling by the justice is a final order, and may be taken to the district court on error.” Carlyle v. Smith, 36 Kan. 614.</p>

<p>Error from Stafford District Court. Hon. J. H. Bailey, Judge.</p>

<p>1. Depositions — notice to take, not naming county, sufficient. In the absence of any showing of prejudice, a notice to take depositions that designates the place as, “at the office of R. L. McDougal, in the city of Marysville, in the county of-, in the State of Missouri,” will be held sufficient.</p> <p>2. - certificate defective. “ Our statute requires the certifi cate of an officer before whom a deposition has been taken to show that the deponent was first sworn ‘to testify the truth, the whole truth, and nothing but the truth.’ A certificate by such officer which shows that the deponents were sworn ‘ to testify the whole truth of their knowledge touching the matter in controversy,’ is defective, and it is error to overrule a motion to suppress such deposition, alleging such defect as ground therefor.” Telegraph Co. v. Collins, 45 Kan. 88.</p> <p>3. -certificate defective. A certificate of a notary annexed to a deposition, stating that the witness “was examined and his examination reduced to writing and subscribed by him in my presence,” is not substantial compliance with the statute requiring that the certificate must show “that the deposition was reduced to writing by some proper person, naming him.”</p> <p>4. - absent parly may presume, taken in conformity to-statute. Where a deposition is taken in the absence of the opposing party nothing is waived, and the absent party has the right to presume that the deposition will be taken in strict conformity with the statute.</p> <p>5. Evidence — held prejudicial. The evidence contained in the deposition examined; held, that the admission of the same was prejudicial to the substantial rights of the defendant.</p>

<p>Default — where plaintiff fails to appear defendant may demand trial. Where au action is commenced upon a promissory note, and an answer is filed stating a good defense, to which the plaintiff files a reply and thereafter fails to appear on the trial, it is not error for the trial court to permit the defendant to proceed to trial upon the issues joined.</p>

<p>New Trial — not granted unless newly discovered evidence comes to party's knowledge after trial, and is material, and party is diligent. A new trial will not be granted where the alleged newly discovered evidence was in the possession of the party applying, at the time the issues were made up and at the time of trial. It must be shown that the existence of such evidence came to the knowledge' of the party applying, after the trial, that it is material, and that the party applying has been diligent. It must further appear to the court that, if a new trial should be granted, a different judgment would probably be rendered.</p>

<p>1. Attachment — possession which divests the defendant's possession is a sufficient levy. Under section 197 of the Code, an attachment levy on personal property is sufficient and valid if the officer with the order of attachment in hand goes to the pla'ce where the goods and chattels of the defendant are found, and there declares, by virtue of said order, that he attaches such property at the suit of the plaintiff, and thereupon takes such possession as divests the defendant’3 possession and gives to the officer a claim of dominion, coupled with the power to exercise it, over the attached property.</p> <p>2. - appraisement need not be made immediately upon the. It is not essential to the validity of an attachment levy so executed, that an appraisement of the attached property should be immediately made.</p> <p>, 3. Bank Commissioner — must talcs actual possession of banlc before action for a receiver tvill li.e. Under chapter 43, Laws of 1891, it was necessary for the Bank Commissioner to take am tual personal possession of the property and assets of an insolvent bank as a condition precedent to the institution of an action by the Attorney General for the appointment of a receiver for such bank; and the property of an insolvent bank, prior to the taking of such actual possession by the Commissioner, was subject to seizure by attachment or other legal process at the suit of its creditors.</p> <p>4. Attachment — not void because appraisement cannot be made. An attachment levy should not be held wholly invalid because of the fact that the appraisement includes certain chattels which the officer and the appraisers have not seen and cannot see because the same are locked in a bank safe of which they do not have the, combination.</p>

Error from Rice District Court. Hon. J. H. Bailey, Judge. This action was begun in the District Court of Rice County, on August 31, 1891, by Ellen Deardorff, as plaintiff, to recover from James W. Dary, as defendant, the sum of four hundred dollars, with interest from May 19, 1890, at six per cent, per annum.

<p>1. Landlord and Tenant^- tenant eannot assign lease without assent of the landlord. A tenant for the term of one year cannot assign or transfer to another any interest under his lease without the assent of his landlord.</p> <p>2. Verdict — not sustained by sufficient evidence, should be set aside. In the absence of any evidence to sustain a verdict, it is: the duty of the court to set it aside and grant a new trial.</p>

<p>Error from Edwards District Court.' Hon. S.W. Vandivert, Judge.</p>

<p>Error from Hamilton District Court. Hon. A. J. Abbott, Judge.</p>

<p>• Error from Pawnee District Court. Hon. S. W. Vandivert, Judge.</p>

<p>Error from Rush. District Court. Hou. V. H. Grin-stead, Judge.</p>

<p>Appellate Practice — no special findings on material point, presumption is that evidence sustains general verdict. Where the record contains none of the evidence offered on the trial and no special finding was made upon a material issue in the case, an appellate court will presume that the evidence before the trial court was such as to support the general finding and judgment of the court. Pennell v. Fetch, 55 Kan. 78.</p>

<p>Error from Ford District Court. Hon. A. J. Abbott, Judge.</p>

<p>1. Errors Waived — by filing amended petition. When the plaintiff files an amended petition, all alleged errors committed prior thereto are waived by him.</p> <p>2. Amended Petition — supersedes original petition. An amended petition becomes and must be treated as the original petition. A summons, order of arrest, and subsequent judgment, must be considered the same as if the amended petition had been filed at the time the original petition was filed.</p> <p>3. Affidavit or Bond for Order of Arrest — insufficient, order should be set aside. If either the affidavit or the bond given to procure the issuance of an order of arrest by the clerk of the district court is insufficient, the clerk has not power to issue such an order, and it should be set aside.</p> <p>4. Section 114 oe Code — does not apply. The provisions of section 114 of the Code do not apply to affidavits for an order of arrest.</p> <p>5. Soeety — banh cannot become. Becoming surety upon undertakings is no part of the business of a bank, and the unauthorized act of its president in signing an undertaking for a bank does not bind the bank in case of liability.</p> <p>6. Decision oe Codet — correct, not set aside because wrong . reason given. If the ruling of the trial court is correct, such ruling will not be set aside because the court gives an incorrect reason therefor.</p>

<p>1. New Trial — record must show motion filed in time. “Where the record fails to show that the motion for a new trial was filed during the term at which the verdict was rendered, it will be presumed, for the purpose of upholding the judgment of the court below and the ruling upon the motion, that it was not made in time, and was for that reason overruled.” Dudley v. Barney, 4 Kan. App. 122.</p> <p>2. Petition — examined and held sufficient. The petition examined, and held, sufficient as against an objection to the introduction of evidence upon the ground that the petition fails to state facts sufficient to constitute a cause of action.</p> <p>3. -when not attacked by motion or demurrer, liberally construed. Where the defendant does not attack the petition by motion or demurrer, but answers, and at the trial objects to the introduction of evidence upon the ground that the petition fails to state facts sufficient to constitute a cause of action, the petition will be liberally construed, so as to uphold it if possible.</p>

<p>Error from Bice District Court. Hon. J. H. Bailey, Judge.</p>

<p>Error from Stafford District Court. Hon. J. H. Bailey, Judge.</p>

<p>1. Appellate Jurisdiction — certificate must state that transcript comprises all the records and proceedings in the case. “A case on appeal under the Civil Code (§516a) providing that in all actions by petition in error the plaintiff in error shall file ■with the petition in error a certified transcript of the record in the court below, wherein the clerk’s certificate recited ‘that the transcript contained a true, full and complete copies ’ of certain • pleadings, motions, entries, etc., will be dismissed because it does not state that such comprised all the records and proceedings in the case.” Byers v. Leavenworth Lodge, 54 Kan. 321.</p> <p>2. - cleric of district court not authorized to determine what are “material acts and proceedings." “When a review is sought on a transcript of the record, the clerk of a district court is not authorized to determine what are or what are not ‘material acts and proceedings of the court,’ but should make a full and correct transcript of the record and proceedings in the cause, and certify the same as such, and where he has not substantially done so the petition in error will be dismissed.” Cook v. Ohalliss, 55 Kan. 363.</p>

<p>Appeal from Hamilton District Court. Hon. Wm. Easton Hutchison, Judge.</p>

<p>Error from Barton District Court. Hon. J. H. Bailey, Judge.</p>

<p>1. Mutilated Case-made — court declines to consider alleged error in. Where certain pages of the case-made do not speak the truth, and we are unable to determine from the evidence introduced before us whether those pages were in the case-made at the time the case-made was settled by the trial judge, we will decline to consider the errors alleged to be shown by such pages.</p> <p>2. Treble Damages — proper under petition in this case. The petition in this case fairly states a case for treble damages under section 1, chapter 113 (¶7157), General Statutes of 1889, and the court did not err in overruling a motion to make the allegations of the petition more definite and certain.</p> <p>3. Land Title — not involved in dispute as to location merely. A dispute as to the location of a tract of land is not a dispute as to the title to said tract; and in an action for treble damages for trespass in carrying away grain, it is competent to show where the lines of plaintiff’s farm are situated, for the purpose of showing that he is not the party injured.</p>

<p>1. County Clerk — drawing county warrants is performance of official duty of. Where a county clerk draws warrants upon the county treasurer for a sum in excess of the amount allowed by the-board of county commissioners, such act is a breach of official duty for which his bondsmen are liable, and the cause of action accrues when the breach occurs, except for undiscovered fraud.</p> <p>2. Statute oe Limitations — action against official barred, is also barred against bondsmen. Where a cause of action is: barred against an official it is barred against the sureties upon his official bond. Ryus v. Qruble, 31 Kan. 767.</p> <p>3. County Clerk — action for fraudulently drawing warrants accrues upon discovery of the fraud. Where a county clerk fraudulently draws county warrants for a sum in excess of the amount allowed by the board of county commissioners', the cause of action against him and his bondsmen does not accrue until discovery of the fraud.</p>