Volume 63 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>Schools and School Districts — Power of County Superintendent. A county superintendent of public instruction, in determining the proportion of the present value of a schoolhouse or other property justly due a new school district formed out of territory taken from another district, acts in a judicial, or quasi-judicial, capacity. After an award has been made by him and the amount thereof paid by the old district, his power is exhausted, and an allowance increasing the original award, made fifteen months after the first determination, is void.</p>

<p>SYLLABUS BY THE COUBT.</p> <p>Bond — Deposit of Money — Disposition after Forfeiture. Where, after conviction in the district court of Dickinson county, for a felony alleged to have been committed in that county, a defendant appeals to this court, and a bond is here given to stay execution pending appeal, and afterward, the judgment of the court below being affirmed, the appellant is ordered to surrender himself to the sheriff of Dickinson county, but fails so to do, and the bond is subsequently declared forfeited by this court, such forfeiture inures to the benefit of the school fund of Dickinson county, where the forfeiture was incurred, and not to the school fund of Shawnee county, within which this court was sitting at the time such forfeiture was adjudged.</p>

<p>Error from Reno district court; F. L. Martin. judge.</p>

<p>Error from Cowley district court; A. M. Jackson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Replevin — Justification by an Officer. A sheriff who seeks to justify a seizure of property under process in an action brought against him by a stranger to the writ, who claims title anterior to the levy, must show, if he acted under an execution, that it was issued on a valid judgment, and, if under a writ of attachment, that the party at whose suit it issued was a creditor of the defendant named therein.</p>

Error from Lyon district court; W. A. Randolph, judge. STATEMENT.

<p>Error from Greenwood district court; O. W. Shinn, judge.</p>

<p>Error from Cowley district court; A. M. Jackson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Note and Mortgage — Interest Coupons — Subrogation. A second mortgagee who voluntarily pays and consents to the cancelation of interest coupons secured by a first mortgage cannot, in an action subsequently brought to foreclose the same, be subrogated to the rights of the first mortgagee as to such coupons, and a decree allowing him to participate pro rata with the holder of the first-mortgage bond in the proceeds of the sale is erroneous.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Laws or Other States — Presumption. The laws of a sister state, in the absence of proof, will be presumed to be the same as our own, and this presumption extends to the statutory as well as the common law of such state.</p> <p>2. Intoxicating Liquors — Aetion on Notes. As intoxicating liquors may be lawfully sold for certain purposes, in an action on notes alleged to have been given as evidencing the purchase-price of “pure California wines,” it is not incumbent on plaintiff to allege a compliance with the restrictions of the law in making a sale; a compliance will be presumed.</p>

<p>Error from Harper district court; G. W. McKay, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Homestead and Exemptions — Mortgage. A husband, with his. wife and minor children, resided on a tract of forty acres of farming land, occupying the same as a homestead. He died, leaving a will in which he devised the property to his wife. She elected to-take under the will, and thereafter mortgaged the land, while occupying the same with her children, to secure a personal debt. Held, that the mortgage was a valid encumbrance on the land.</p>

Error from Lyon district court; W. A. Randolph, judge. STATEMENT.

<p>Error from Reno district court; F. L. Maktin, judge.</p>

<p>Error from Reno district court; F. L. Martin, judge.</p>

<p>Error from Johnson district court; J. T. Burris, judge.</p>

<p>Original proceeding in habeas corpus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Continuance — Absent Witness A party who seeks a continuance on account of an absent witness must show that he has used the ordinary means provided by statute to obtain the testimony of such witness; and the failure to employ such means, when they are practicable and would be effectual, will, as a general rule, be fatal to an application for a continuance.</p> <p>2. Intoxicating Liquors — Nuisance—Testimony. A complaint contained two counts charging unlawful sales of intoxicating liquors on a certain day, and also one charging that defendant maintained a place where such liquors were unlawfully sold. On the first trial there was, in effect, an acquittal on the second count, and afterward, upon appeal, there was another trial on the third count. Held, that the acquittal on the second count did not preclude the use of the evidence of unlawful sales on the day named in that count to sustain the third count, which charged defendant with maintaining a nuisance.</p> <p>3. -Paraphernalia in Evidence. The fact that bottles, glasses, liquors and other articles may have been taken by an officer from the possession of the defendant in an unauthorized search of his premises does not constitue a valid objection to the admissibility of such articles in evidence against him, if they are otherwise pertinent and competent.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Jury and Jurors — Challenge to the Array. A challenge to the array, if not made before the parties have exhausted their peremptory challenges and challenges for cause, is not made in time.</p> <p>2. Intoxicating Liquors — Paraphernalia in Evidence. The fact that bottles, glasses, liquors and other articles may have been taken by an officer from the possession of the defendant in an unauthorized search of his premises does not constitute a valid objection to the admissibility of such articles in evidence against him, if they are otherwise competent. (The State v. Miller, ante, p. 62, 64 Pac. 1033.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Replevin — Parties—Bights of Part Owner. A tenant who owned an undivided two-thirds of a crop, which had been placed in stacks, transferred the same to another, after which it was seized at the instance of a creditor of the tenant, and the vendee of the tenant then brought an action to recover possession of the same. Held, that the vendee, although only a part owner of the orop, was entitled to maintain replevin as against the creditor of the tenant. (Piazzeh v. White, 23 Kan. 621, 33 Am. Rep. 211.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Schools and School Districts — Taxation. The right of a school district to levy a tax, if it exists at all, must be clearly-found in the statute. If there is a fair doubt as to its existence, it must be denied.</p> <p>2. - Union School — Limit of Levy. The aggregate tax levy which may be made in any one year by a school district, and a “graded-school district” identical in boundaries, organized under sections 6212-6251, General Statutes of 1901, cannot exceed two per cent, on the taxable property in such district for the various school purposes.</p>

<p>Error from Chase district court; W. A. Randolph, judge.</p>

Error from Cowley district court; J. A. Burnette, judge. STATEMENT. The firm of Henderson Brothers was engaged in the harness and saddlery business in Arkansas City, Kan., and was indebted to the Atchison Saddlery Company. On February 27, 1896, they gave to the company three notes, each for the sum of $65.45, due in four, six and seven months.

<p>Error from Sedgwick district court; D. M. Dale, judge.</p>

<p>SYLLABUS BY THE COUBT.</p> <p>Note and Mortgage.' — Homestead—Limitation of Action. A mortgage upon a homestead was executed by the father and mother of minor children to socure a note whioh they had given. Before the note matured the father died intestate, and the mother and children continued to occupy the homestead. With the products of the homestead the mother made payments on the note and kept it alive. No guardian was appointed for the children and no payments on the note were expressly made for them. An action of foreclosure was brought more than five years after the maturity of the note, and the minor children claimed that the mortgage was barred as to them and not enforceable as against the undivided one-half of the mortgaged land which they had inherited. Held, that, the debt having been kept alive, the mortgage executed to secure its payment may be foreclosed against the whole of the land.</p>

Error from Greenwood district court; C. W. Shinn, judge. STATEMENT. The defendant in error, H. A. Longwell, as administrator of the estate of B. J. Newman, deceased, brought this action in the district court of Greenwood county, on the 6th day of February, 1897, against C. M. Jackson and Charlotte Jackson, husband and wife, for the purpose of obtaining a judgment against defendants on their two promissory notes and to foreclose two mortgages securing the same.

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgment — Vacation—Condition Precedent. The court should ' not vacate a judgment on an application made under subdivision 3 of section 568 of the code (Gen. Stat. 1901, §5054), until the party applying therefor, if he be the defendant, shall have set up a defense to the action, as provided in section 572 (Gen. Stat. 1901, §5058). These two sections are to be construed together, and it is error to vacate a judgment on such grounds until the defendant has presented to the court a complete defense to the action on which the judgment was rendered.</p> <p>2. -Execution on Deficiency Judgment. In an action to recover a personal judgment on a promissory note and to foreclose a real-estate mortgage, the plaintiff is entitled to an execution as a matter of right against the judgment debtor for any deficiency after selling the mortgaged property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Liability of Stockholder. The statutory liability of a stockholder in a corporation is contractual; but it is separate and collateral to the liability of the corporation, and in the nature of security for the debts of the latter.</p> <p>2. -Liability of Stockholder — Limitation of Action. A cause of action against a corporation which accrues on the suspension of business by the ' corporation, against which the statute of limitations will run within three years thereafter, will become barred at the same time as to a stockholder on his individual liability, notwithstanding the creditor cannot commence an action against the stockholder until after the expiration of one yeas from the time the corporation suspended business.</p>

<p>Error from court of appeals, northern department; John H. Mahan, Abijah Wells, and Samuel W. McElroy, judges.</p>

<p>SYLLABUS BY THE COURT.</p> <p>3. Cities and City Oeeicers — In,ability for Attorney's Fees. The fact that individual members of a city council may have suggested to or encouraged an attorney in the bringing of an action to which the city was not a party and in which it had no direct concern gives such attorney no authority to act for the city, and does not make it liable for the services performed by him in such action.</p> <p>2.- Unofficial Acts of Gouneilmen. Nor does the fact that the city council thereafter instructed the city attorney to assist the attorney bringing the action and contributed money toward the expense of obtaining testimony in such case operate as a ratification of the unofficial action of the individual members of the council, nor render the city liable for the legal services of the attorney bringing the action.</p>

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. James and Hayes owned and occupied as residences adjoining premises in Topeka. A controversy had existed for a considerable time as to the correct location of the boundary line between them.

Error from Butler district court; O. W. Shinn, judge. STATEMENT. The plaintiff bank brought suit in attachment against Samuel G. Fleming, who in 1894 was its teller and in 1896 its cashier, alleging that while acting in each capacity he embezzled funds. Judgment was rendered in the sum of $10,000. The land in controversy in this action, a half-section in Butler county, was seized under the writ of attachment issued at the commencement of the action.

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Larceny—Form of Complaint. Where the statute specifically describes an offense or uses language descriptive of it, a complaint drawn thereunder should substantially follow the descriptive language. A complaint which charges “that the defendant did steal, take and carry away certain personal property, to wit, forty pounds of barb-wire, of the value of two dollars,” etc. is not sufficient to admit testimony or support a conviction of severing from a fence certain portions thereof and converting it, with intent to steal.</p>

STATEMENT. The defendants were the keepers of a lunch-counter and restaurant.

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Summons in Error. A summons in error, in which, no persons are named as defendants in error in either the head or body of the writ, but which names certain persons as attorneys for defendants in error not designated, is fatally defective, and gives the court no jurisdiction.</p> <p>2. - Jurisdiction by Stipulation. Where the time has elapsed within which a proceeding in error may be brought, and no such proceeding has been instituted, the parties'cannot thereafter, by stipulation, entry of appearance, or otherwise, vest the court with jurisdiction of a belated proceeding.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Corporations — Liability of Stockholders — Lis Pendens. Notwithstanding a petition has been filed and summons issued, but not served, in an action to charge a stockholder of a suspended corporation, yet the stockholder, with full knowledge of the proceeding, may discharge his statutory liability by payment to another creditor, or by giving his note, in good faith, in lieu of such payment. The question whether service would bind the stockholder to the suing creditor is reserved.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Jury and Jurors — Erroneous Practice. Where a jury agree that each member shall submit a sum which he thinks one of the parties ought to receive, that the sum of these shall be divided by the number of jurors, the quotient to be their verdict, and this is done and a nominal sum added for the purpose of making the amount an even number, without further deliberation or consideration, the verdict should be set aside.</p> <p>2. Personal Injuries — Physical Examination. In an action to recover damages for personal injuries, the trial court may require the injured party to submit the unexposed portion of his person to a private examination by physicians or surgeons appointed by the court, when, in the exercise of a sound judgment, it appears to the court that the necessity of the case demands such an examination.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Public Policy Contravened. An agreement that, for a pecuniary consideration, a person will withdraw opposition to the granting of a pardon, and will, by solicitation and the exercise of personal influence, endeavor to induce the pardoning authority to grant a pardon to one who has been convicted of a crime, contravenes public policy and is void.</p> <p>2. Practice — Impeaching Testimony, A party is not concluded by the statements of any witness, but has the right to introduce other competent testimony to show the real facts, although such testimony may incidentally contradict or tend to impeach the testimony of a previous witness.</p>

Error from Allen district court; L. Stillwell, judge. STATEMENT. This is an action in ejectment, brought on November 27, 1894, by the plaintiff in error, to recover from the defendant in error the east half of the southeast quarter of section 2, in township 26, range 20, in Allen county, Kansas. Plaintiff claimed under a patent issued to the Missouri, Kansas & Texas Railway Company, dated November 3, 1873. The defendant claimed under the fifteen-year statute of limitation.

Error from Crawford district court; W. L. Simons, judge. STATEMENT. Wesley E. Best, the defendant in error, commenced an action in the district court of Crawford county, Kansas, against the Litchfield Car and Machine Company, to recover a judgment of $1423.47 on a promissory note, and garnished the Wear Coal Company, which answered that it was indebted to the Litchfield Car and Machine Company in the sum of $1098.36 for a certain boiler and other machinery purchased from it.

Error from Cherokee district court; A. H. Skid-more, judge. STATEMENT, Plaintive in error commenced this action in the district court of Cherokee county to recover a judgment and foreclose a mortgage against William Logan and Matilda Logan, the makers thereof. Oliver P. Hill and F. S. Hill, the grantees of the Logans, and W. J. Neill, the payee therein, were made defendants.

Error from Osage district court; William Thomson, judge. STATEMENT. This case is a continuation of Frankhouser v. Fisher, 54 Kan. 738, 39 Pac. 705, with some changes as to parties and issues. The McCormick Company had a judgment against the Neallys. W. L. Neally had made an agreement which this court, in the case just cited, held to be a chattel motgage, by which he agreed to crib for Fisher & Enderton 2000 bushels of corn on Neally’s place.

Error from Montgomery district court; A. H. Skidmoke, judge. STATEMENT. The First National Bank of Cherry vale brought an action against Clotfelter and wife and Chas. W. Booth and wife to recover a judgment of $793.12. An order of attachment was duly issued on October 28, 1895. The sheriff levied on a two-seated carriage.

<p>SYLLABUS BY THE COURT.</p> <p>Chattel Mortgage — Stock of Merchandise — Invalid. A chattel mortgage on a stock oí merchandise, containing stipulations that the mortgagor shall continue in possession and may sell all of the stock, without limitation as to whether it shall be for cash or on credit, and which gives him the option to buy other goods to keep up the stock, without fixing any standard of value or amount to which the stock shall be kept, and which provides that the moneys derived from sales, over and above what is necessary for expenses and to keep up the stock, shall be turned over to the mortgagee, is inoperative and void.</p>

Error from Miami district court; John T. Burris, judge. STATEMENT. One G. E. DeForrest died the owner of 200 acres of land in Miami county, Kansas, leaving a widow and five children. Subsequently the widow died and her interest in the land passed to the children. At the time of his death G. E. DeForrest was indebted to the plaintiff in error on a note for money borrowed. from her.

Error from Linn district court.; Walter L. Simons, judge. STATEMENT. O: E.-Morse, one of the defendants in error, as receiver for Hood & Kincaid, commenced this action in the court below to foreclose a certain deed as a mortgage, and made Aaron B. Rhodes, the plaintiff in error, and Daniel Spears, one of the defendants in error, defendants therein, alleging that each claimed some interest in the real estate in question adverse to plaintiff.

<p>Error from Cherokee district court; A. H. Skidmoke, judge.</p>

<p>Appeal from Montgomery district court; A. H. Skid-more, judge.</p>

<p>Error from Lyon district court; W. A. Randolph, judge.</p>

<p>Error from Neosho district court; L. Stillwell, judge.</p>

<p>Error from Neosho district court; L. Stillwell, judge.</p>

Error from Labette district court; A. H. Skidmore, judge. STATEMENT. • One D. O. Marvin, being indebted to plaintiff in error in the sum of $600, executed his promissory note, secured by chattel mortgage upon property probably owned by the deceased, H. C. Marvin, his father. This note matured March 1, 1893.

<p>Error from Coffey district court; W. A. Randolph, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highways. — Railway Company a Resident of the County. In the application of the statutes relating to the establishment and laying out of public highways, a railway company is to be regarded as a resident of any county in which it operates its road or exercises corporate franchises.</p> <p>2. -Notice is Jurisdictional. The notice required to be given to a landowner of the meeting of road-viewers, under section 6019 of the General Statutes of 1901, is jurisdictional. (The State v. Farry, 23 Kan. 731.)</p>

<p>Appeal from Cherokee district court; A. H. Skid-more, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors — Proof of Nuisance. Under section 2463 of the General Statutes of 1901, being the nuisance sectioq of the prohibitory liquor law, a conviction may be had. of a person who keeps, owns or maintains a place where intoxicating liquors are kept for sale, barter or delivery in violation of the act, without proof of actual sales made by him.'</p> <p>2. - Complaint and Conviction Upheld. A county attorney filed a complaint, verified by him on information and belief, charging the defendant with keeping and maintaining a common nuisance, under section 2463 of the General Statutes of 1901. At the same time an affidavit of the prosecuting witness was filed describing a place where intoxicating liquors were sold and kept for sale, and stating that it contained a. bar, counter, bottles, glasses, beer, and whisky. The keeper of the place was not named. Held, that a conviction of the owner or keeper, under the statute mentioned, must be upheld.</p> <p>3. - Cases Distinguished. The cases of The State v. Moseli, 49 Kan. 142, 30 Pac. 189, The State v. Nulty, 47 id. 259, 27 Pac. 995, and The State v. Hescher, 46 id. 534, 26 Pac. 1022, distinguished.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Practice— iS'ewfenee on Several Counts Held not Uncertain. A judgment of conviction imposing successive terms of imprisonment on a defendant, under several counts of an information for illegal sales of intoxicating liquor, and containing a condition that the period of imprisonment under each cumulative sentence should begin at the expiration of the period of sentence under the preceding count, which judgment does not specify the date of commencement of imprisonment under any of the counts, is not, for either of such reasons, uncertain or indefinite as to the time of commencement of either the separate or aggregated terms of imprisonment.</p> <p>2. -Judgment of Conviction, Sentencing for Different Offenses, Construed. A judgment of conviction sentencing a defendant to imprisonment in jail for a misdemeanor recited that he had been sentenced to imprisonment at a preceding term of the same court for a like offense, and that he had prosecuted an appeal from such former sentence, which appeal remained undecided. The judgment in which these recitals were made ordered that, in the event that the defendant’s appeal in the former casé should be affirmed and he be committed to jail to serve the sentence imposed in that case, the two periods of imprisonment should be considered separate from, and independent of, each other, “it being,” in the language of the judgment, “the object of the court and of this order that you [the defendant] should serve the entire time imposed by both sentences.” Held, that such judgment of conviction is not indefinite and uncertain as to the-commencement of the term of imprisonment. It was only made so by the defendant’s act of appeal in both cases, and the uncertainty as to whether one or both such appeals would be affirmed, and, if both, which term of imprisonment the jail authorities would require him to enter upon first.</p>

<p>Error from Finney district court; Vm. Easton Hutchison, judge.</p>

Error from Pratt district court; G. W. McKay, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>Cities and City Officers — Notice of Dangerous Condition of Street— Question for Jury. Whether a public street in a city, rendered unsafe for travel by the falling of an electric wire, had remained in such condition a period of time sufficient to charge the city with constructive notice of its unsafe condition, or whether the city had actual notice of the unsafe condition of the same, and might, with reasonable diligence, after the receipt of such notice, have repaired the same and averted an alleged injury occasioned thereby, is a question of fact for the jury and not a question of law for the court.</p>

<p>Error from Sedgwick district court; D. M. Dale, judge.</p>

<p>Error from Lyon district court; W. A. Randolph, judge.</p>

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Water Company — Failure to Make Report — Penalty Inflicted. The penalty of forfeiture of corporate franchises is not inflicted upon water companies for failure or neglect to make and file with the city clerk a verified statement, as required by section 5, chapter 82, Laws of 1897 (Gen. Stat. 1901, §657).</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Practice — Bill of Exceptions — Evidence in Habeas Corpus. A supplemental bill of exceptions in a criminal case, settled and allowed after the term at which a judgment of conviction of the defendant was rendered, which bill of exceptions recites that the conviction was had on the verdict of eleven jurors only,constitutes a part of the record of the case„although the court refused to correct the journal entry of conviction so as to show the actual fact. Such bill of exceptions, being part of the record of the case, is admissible evidence upon an application for habeas corpus to release a prisoner from confinement in the state penitentiary.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Coram Nobis— When the Writ Cannot be Used. The writ of coram nobis cannot be made the foundation for the examination of an alleged error of fact when, by the exercise of all reasonable ' diligence, such fact might have been presented to the court at /the trial, or upon a motion for a new trial.</p> <p>2. -Newly-discovered Material Evidence. Insufficient. Newly-discovered material evidence cannot be made the basis for a writ of coram nobis.</p> <p>3. - What Application Must Show. The application for a writ of error coram nobis must show that, if the facts upon which the error is predicated had been presented to the trial court, the judgment complained of could not have been entered.</p> <p>4. - Court Will not Weigh Conflicting Testimony. Upon an application for a writ of coram nobis, the court will not weigh conflicting testimony.</p>

<p>Error from Sedgwick district court; D. M. Dale, judge.</p>

<p>Error from Butler district court; C. W. Shinn, judge.</p>

<p>Error from Sumner district court; J. A. Burnette, judge.</p>

<p>Error from Sedgwick district court; D. M. Dale, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Redemption— Act Construed — Mortgagor Entitled to, and May Assign, Bents Collected by Beceiver. Under the provisions of section 24, chapter 109, Laws of 1893 (Gen. Stat. 1901, § 4950), an insolvent mortgagor, if the holder of the legal title, is entitled to receive, and may assign, the income arising from rentals of the mortgaged premises remaining in the hands of a receiver appointed to control and rent the mortgaged property during the statutory period of redemption, as against the claim of the prior mortgagee upon the deficiency judgment, who, before the assignment of the income by the mortgagor, and after the issuance and return nulla bona of an execution upon the deficiency judgment, has applied to the court for an order applying the fund in the hands of the receiver upon his deficiency judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Eight-hour Law — Estopped from Claiming Extra Pay. A laborer who contracts to work for a county at a stipulated sum per month, and does work for it during his employment in excess of eight hours per day, but renders accounts for the agreed compensation as a monthly salary, and receives payment as such, without any claim that it is other than full compensation, or other than a monthly salary, cannot thereafter claim an extra allowance for overtime, under chapter 114, Laws of 1891 (Gen. Stat. 1901, §§3827-3830), being an act constituting eight hours a day’s work for the state, the counties, and other political and municipal divisions.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Action against County for Refunding. A petition which alleges the sale and conveyance of land for taxes which was not subject to. taxation; that it was subsequently adjudged in a court of competent jurisdiction that the land was not taxable, and that the sale and conveyance were invalid; that a quitclaim deed by the holder of .the tax title was tendered to the board of county commissioners and application made, in due time, for the refunding of the taxes and charges paid on the land, states a cause of action against the board.</p> <p>2. - Sufficient Averment of Fact. An averment that the title to the land was in the United States, and that it was not subject to taxation, is more than a conclusion; it is a statement of fact sufficient to withstand a demurrer.</p>

Error from Harper district court; G. W. McKay, judge. ¡STATEMENT. This was an action by T. A. Noftzger to enforce an attorney’s lien against a fund which was in the hands of Moffet Brothers. The cause was determined upon the following agreed statement of facts : “1.

<p>Error from Sedgwick district court; D. M. Dale,. judge.</p>

<p>Error from Cowley district court; W. T. McBride, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities and City Okbtcers — Extension of Corporate Boundaries. Section 1, chapter 69, Laws of 1886 (Gen. Stat. 1901, § 1052), which provides that a city desiring to extend its corporate limits may make its application by petition to the district judge, asking such judge to hear the evidence and make a finding as to the advisability of taking into the city- certain territory therein described, has been held by this court not to be an attempt to impose legislative power upon the judicial department of the state government, and is not for such reason unconstitutional and void. (Callen v. Junction City, 43 Kan. 627, 23 Pac. 652, 7 L. R. A. 736; City of Emporia v. Randolph, 56 Kan. 117, 42 Pac. 376.)</p> <p>2. -Reduction of BTomestead. In an action to enjoin a city of the second class from extending its corporate limits over a rural homestead of more than one acre of land, the question whether the incorporating of such homestead in the city will reduce such homestead to one acre cannot be litigated.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Bight of Set-off. The mere existence of mutual judgments, though rendered in the same court and about the same time, does not entitle a party to an order or judgment setting one of them off against the other upon demand.</p> <p>2. -A Matter for Equitable Consideration. Whether the power to set off judgments shall be exercised is to be determined in every case upon equitable considerations, and it will never be done where it will operate as an injustice or infringe upon the substantial rights of others.</p> <p>3. -- Laches of Applicant for Set-off. Where the right of set-off was not asserted for more than three years after the judgments were rendered, nor until other rights had intervened, and where the party had neglected to avail himself of the special security decreed to him with which to satisfy his judgment, the ruling of the court refusing to adjudge a set-off will not be reversed.</p> <p>4. Practice, District Court — Seasonable Bule. The district courts have authority to make necessary and reasonable rules governing the transaction of business therein, and a rule requiring that parties who desire the court to state in writing its findings of fact separately from its conclusions of law shall request the same at the commencement of the trial is not unreasonable or illegal.</p>

<p>Error from Labette district court; A. H. Skidmore, judge.</p>

<p>Appeal from Allen district court; L. Stillwell, judge.</p>

Original proceeding in mandamus. STATEMENT. This is a proceeding in mandamus to compel the respondent, as auditor of state, to register 200 refunding bonds, of the denomination of $500 each, executed by the county of Chase, in pursuance of an agreement with relators to compromise and refund $80,000 of railroad bonds issued by that county November 1, 1892, in aid of the Chicago, Kansas & Western Railroad Company.

<p>Error from Barton district court; Ansel R. Clark, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Fraternal Insurance — Action for Disability — Petition Held Sufficient. The cause of action against a fraternal mutual benefit association was based upon the following paragraph in its bylaws: “In case any member of the Grand Legion beneficiary department, while in good standing in such beneficiary department, shall become totally and permanently disabled for life, so as to be unable to follow his own or any other avocation, and provided such disability did not arise from any immoral conduct on his part, and provided further that such .disability shall only consist of the loss of one hand and one foot, or both hands, or both feet, or of both eyes, either from accident or disease, or from some disease or injury producing some local lesion, or deformity apparent to any one, the same amounting to total disability.” The petition alleged that plaintiff had received “ a great personal injury, whereby his left hand and forearm were lacerated and crushed so that the same had to be and were amputated below the elbow, resulting in a partial paralysis of his upper left arm and left shoulder and left side, of a progressive character, such that it has since become and is continually growing worse, and, as he is advised by expert physicians, will end in the total paralysis thereof; that because and by reason of said injury, he forthwith became and has ever since remained and still is totally and permanently disabled for life, so as to be unable to follow his own or any other avocation; and such disability did not arise from any immoral conduct on his part, and said disability arose from and, consists of said injury and paralysis, producing a local lesion, and deformity apparent to any one, the same amounting to total disability.” Held, that the petition stated a cause of action. '</p>

Error from Neosho district court; Ij. Stillwell, judge. STATEMENT. The defendant in error brought this action to recover damages for the loss of property destroyed by fire through the negligence of the railway company and its employees in operating one of its freight-trains, on the 17th day of November, 1897, on a division of its road which runs through the farm of plaintiff below, near Chanute.

<p>Error from Montgomery district court; A. H. Skid-more, judge.</p>

Error from Cherokee district court; A. H. Skid-more, judge. STATEMENT. On and prior to December 5, 1896, the Baxter Bank was a banking corporation. On that date the bank commissioner took charge, and on December 23, R. H. Sands was appointed receiver.

<p>Error from Osage district court; Willtam Thomson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Title and Ownership — Tax Title — Priority of Mortgages. Where one holding a voidable tax deed executes a quitclaim to the owner of the premises and takes a note secured by a mortgage thereon in payment of the sum agreed on for such quitclaim deed, the holder of the tax deed thereby waives his tax lien, and his mortgage is inferior to another mortgage previously given.</p>

Error from Pawnee district court; J. E. Andrews, judge. STATEMENT.

Error from Harvey district court; M. P. Simpson, judge. STATEMENT. This was an action in foreclosure by the BelknapSavings Bank against Elliott E. Pollard, Sarah E. Pollard, Sarah G. Shattuek, and others.

Error from Reno district court; M. P. Simpson, judge. STATEMENT. , William F. Dolan & Co. brought an action on an account for merchandise against George W. Stone, Susan Stone, and several others, averring that all of the defendants were copartners, doing business under the firm name and style of George W. Stone & Co., at the time the goods were sold and delivered to that firm.

<p>Error from Cowley district court; W. T. McBride, judge.</p>

Error from Cowley district court; W. T. McBride, judge.' STATEMENT. This action ,was brought by plaintiffs in error to foreclose a lien for lumber and material furnished in building a barn and chicken-house on the premises of the defendant Absalom Bever. Briefly stated, the essential facts are that Bever, an aged and indigent ox-union soldier, and his wife, resided at the little town of Floral, in Cowley county, and kept a small boarding-house.

Error from Greenwood district court; O. W. Shinn, judge. STATEMENT. This was an action brought by the Western National Bank against J. K. P. Pine to recover from the. latter the sum of $2000, with interest, on account of his statutory liability as a stockholder in the Western Farm Mortgage Trust Company, an insolvent corporation.

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — Enforcement of Contract between Barbers. Defendant, who was a barber and owner of a shop, sold his furniture, tools and fixtures to the plaintiffs, and agreed that he would not engage in the barber business in any manner in the town of Russell. Held, that a decree enjoining defendant from working as an employee of the owner of another barber shop in that town will' be sustained.</p>

H. Madison, judge. STATEMENT. Appellant, a man about forty years old, was upon his trial in the district court of Comanche county upon a complaint charging statutory rape committed upon the person of his foster-daughter, a child between •twelve and thirteen years of age. The child had been living with appellant and wife since she was four or five years old.

Error from Barton district court; Ansel R. Clark, judge. STATEMENT. The Lake Koen Navigation, Reservoir and Irrigation Company is a corporation organized under the general laws of the state of Kansas.

Error from Clay district court; W. S. Glass, judge. STATEMENT.

<p>Original proceeding in mandamus.</p>

<p>Appeal from Douglas district court; Samuel A. Riggs, judge.</p>

<p>Error from Greenwood district court; A. M. Jackson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Continuance — Buie of Court. Where, by a rule of court, a party desiring the continuance of a cause is required to make his application therefor on the first day of the term or show cause why he did not do so, it is not error for the court to overrule such application made during the term, no such showing being made.</p> <p>2. Assignment oe Account — Admission by Pleadings. Where-an action is brought on an account assigned to plaintiff in writing, and th.e execution of the assignment is admitted by the pleadings, it is not error for the court to refuse to permit the defendant to introduce evidence tending to show that such assignment is only colorable and that the plaintiff is not the real party in interest, no such defense being pleaded.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors — Common Nuisance — Abatement. All places where intoxicating liquors are sold or kept for sale, or places where persons are permitted to resort for the purpose of drinking the same, are declared by statute to be common nuisances. This fact, however, does not justify their abatement by any person or persons without process of law. They can be abated only by a prosecution instituted in behalf of the public by the proper officer. The destruction or injury of property used in aid of the maintenance of such nuisances, except in the manner provided by the statute, is a trespass.</p> <p>2. Criminal Practice — Change of Venue. A change of venue in a criminal prosecution is a wrong to the public unless the necessities of justice to the accused require it. Prejudice on the part of a judge must clearly appear. A prima facie showing of prejudice is insufficient. The case of City of Emporia v. Volmer, 12 Kan. 622, followed,</p> <p>3. Misdemeanors — Accessaries. In the commission of a misdemeanor there are no accessaries. All persons aiding or counseling are principals.</p>

<p>Error from Cherokee district court; A. H. Skid-more, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Evidence— County Attorney as Witness. A county attorney trying a criminal case is not incompetently statute, or legal policy, to testify in behalf of the defendant as to contradictory statements made by one of the state’s witnesses on a former trial of the case.</p>

<p>Appeal from Kush district court; J. E. Andrews, judge.</p>

<p>Error from Sumner district court; W. T. McBride, judge.</p>

<p>Error from Butler district court; C. W. Shinn, judge.</p>

<p>Error from Cowley district court; W. T. McBride, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Objectionto Jurisdiction. Where several actions of the same character are consolidated in the district court by consent of all the parties, and are tried through to final judgment without objection, it is too late to object upon review, and the jurisdiction of the supreme court will be determined by the whole amount involved in the new consolidated action.</p> <p>2. Actions against Counties — Presentation of Claims. While the statute provides for the presentation of claims against the county to the board of county commissioners for allowance, it does not require that such claims be presented before an action thereon can be maintained; and, not being a part of plaintiff’s cause of action, it is not necessary for him to plead presentation, nor to prove it in the first instance.</p> <p>3. Practice, Probate Court — Rights and Duties of Sheriff. All writs, orders and other process of the probate court are required to be issued and directed to the sheriff, except that, in the absence or non-attendance of the sheriff, special sheriffs may be appointed by the probate judge to serve such process; but where the sheriff is in his office, ready upon call to serve process when it is issued by the probate judge, and the offices of the sheriff and probate judge are in the same group of buildings, and only about 150 feet apart, there is neither absence nor non-attendance of the sheriff, and the probate judge is without authority to appoint a special sheriff.</p> <p>4. - Special Sheriffs — Fees and Salaries. An unauthorized appointment of a special sheriff and the execution of process wrongfully issued to him will not deprive the sheriff of the emoluments attached by law to his office, and he will be entitled to recover from the county the compensation fixed by law for the service of such process, if the same has not already been paid by the county to the special officer.</p>

Error from Lyon district court; W. A. Randolph, judge. STATEMENT. This was an action brought to recover from the Atchison, Topeka & Santa Fe Railway Company the sum of $800, interest on a certain judgment rendered in the district court of Lyon county, Kansas, against the Atchison, Topeka & Santa Fe Railroad Company.

<p>SYLLABUS BY THE COURT.</p> <p>Cities and City Oeeicers — Contractors’ Bond — Liability oj City. The obligation placed on public officers by sections 5130, 5131, General Statutes of 1901, to require all persons who contract to make public improvements to give a bond, is a duty for the benefit of the public, and not for the benefit of the corporation for which such improvements are made; and a city is not liable to one who has sustained loss resulting from having furnished material to a contractor, by reason of the neglect of its officers to require a bond.</p>

<p>Error from Anderson district court; Samuel A. Riggs, judge.</p>

<p>Error from Coffey district court; W.'A. Randolph, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Subrogation — Payment of Prior Mortgages — Fraud. Where money is loaned to a husband and wife on the faith of a mortgage on land, for the purpose of paying off prior valid mortgages on the same land, and is so used, and it turns out that the husband signed his wife’s name to the mortgage without authority, of which execution she was immediately informed, but, instead of disclosclosing the fraud, she allows the mortgagee to pay off the prior mortgages and to believe that he has a valid security, the holder of such mortgage is entitled to be subrogated to all the rights and interests of the prior mortgagees.</p> <p>2. -Presumption of Law — Limitation of Action. Where money is so fraudulently obtained and used at the instance of the mortgagors to pay off prior valid liens, such liens will be considered to be alive so long as equity and the rights of the parties require; and the holder of the defective mortgage, who had no notice of the fraud or defect until the answers of the mortgagors were filed in a foreclosure action, is not barred by the statute of limitations from asking subrogation to the prior liens, although more than five years have elapsed since they were paid off and discharged.</p>

<p>Error from Franklin district- court; Samuel . A. Riggs, judge.</p>

<p>Appeal from Kingman district court; P. B. Gillett, judge.</p>

L. Moore, judge. STATEMENT. Appellant was convicted of murder in tbe first degree. At tbe trial he justified on the ground of self-defense. The appellant, Burton, went to Marion county in the spring of 1900, to work at his trade as a painter. He was an unmarried man, and boarded at Drake’s restaurant, in the city of Marion. He secured work in the country, about ten miles east of that town, at house-painting for farmers in the vicinity.

<p>SYLLABUS BY THE COURT.</p> <p>1. Texas Fever — Seizure of Cattle by Sheriff. A sheriff acting under section 7091, General Statutes of 1899 (Gen. Stat. 1901, §7439), being a portion of the act for the protection of cattle against Texas fever, can seize and quarantine cattle only on a “complaint” made to him that such cattle are capable of communicating, or liable to impart, fever, and a communication addressed to him which merely informs him that the live-stock sanitary commission requests him to quarantine certain cattle is not a complaint, and does not constitute a justification to him, when sued in replevin for the cattle.</p> <p>2. - Jurisdiction of Live-stoch Sanitary Commission. The live-stock sanita’ry commission is a body of special and limited iurisdiction, and in the quarantining of cattle to prevent the spread of disease is authorized to proceed in a summary manner, and not according to the ordinary course of judicial procedure. Its acts, therefore, are to be confined strictly within the limits of the jurisdiction conferred; and when the record of its proceedings ordering the quarantining of cattle fails to show the existence of the facts which alone will authorize the making of the order, such order does not constitute "a justification for any action taken under it.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court— Objection to Depositions. It is not error to overrule a motion to suppress a deposition when the motion does not clearly point out the objection thereto. An objection to a deposition, based upon the fact that the name of the officer taking it is not indorsed upon the envelope containing it, is not pointed out by an objection that the deposition was not sealed up by the officer taking it.</p> <p>2. Corporations — Ratification of Contract. The showing that a corporation carries out the provisions of a contract made on its behalf and receives benefits therefrom is sufficient proof that the execution of such contract was duly authorized by such corporation.</p> <p>3. Evidence — Records of Register's Office. The presumption that the original of a written instrument is not in the possession of one a stranger to it is sufficient, in the absence of other showing, to admit the record of such instrument, found in the books of the register of deeds’ office, to be read in evidence. (McLean v. Webster, 45 Kan. 644, 26 Pac. 10.)</p> <p>4. -Proof of Immaterial Fact. It is not error for a trial court to refuse to admit proof of a fact which does not tend to prove or disprove any matter in controversy.</p>

<p>Error from Allen district court; L. Stillwell, judge.</p>

<p>Error from Franklin district court; Samuel A. Riggs, judge.</p>

<p>SYLLABUS BY THE COURT.’</p> <p>1. Intoxicating Liquors — Information against Druggist. It is sufficient in an information against a druggist, pharmacist, or assistant pharmacist, for selling intoxicating liquors unlawfully, to charge that he held a permit; and it is not necessary to allege, in addition thereto, that he was at the time a druggist, pharmacist, or assistant pharmacist, as the allegation that he held such permit necessarily carries with it the legal presumption that he was entitled to hold it.</p> <p>2. -Offense Defined■ — Act Construed. To charge in an information that one holding a permit as druggist, pharmacist or assistant pharmacist sold intoxicating liquors to one whom he “ had good reason to believe desired the same to use as a beverage.’-’ charges no offense unless there is added thereto the further charge that the person purchasing did not, as a matter of fact, desire the' liquors to use in one of the lawful methods, and did not so use them. The offense consists not in what the seller may or may not believe about the transaction, if, as a matter of fact, the sale .and -purchase were for a legal purpose.</p> <p>3. -Habitual Drunkard Defined. An habitual drunkard, within the meaning of the statute making it an offense to sell liquor to such, is one who becomes commonly or frequently intoxicated, and not necessarily one who has so surrendered himself to the habit that he must drink to excess and become intoxicated whenever the temptation is presented and an opportunity afforded him to do so.</p>

<p>Error from Chase district court; W. A. Randolph, judge.</p>

<p>Error from Wyandotte court of common pleas; Wm. G. Holt, judge.</p>

<p>Error from Cowley district court; J. A. Burnette, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. School-district Warrants — Limitation of Actions. Orders were drawn by the proper officers of a school district on the treasurer for the payment of money out of a designated fund. In an action against the district on the warrants, it appeared that at no-time since the debt was created had there been any money in the treasurer’s hands applicable to the payment of the orders. Held, that the school district was estopped from interposing the defense that the action was Barred by the statute of limitations.</p> <p>2. -Statute Considered. The effect of sections 6011 and 6012 of the General Statutes of 1901, requiring the registration of warrants, considered.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract or Sale— Time the Essence — Ejectment. A provision in a contract for the sale of real estate making ,the time of payment of the purchase-price of the essence of the contract is to be respected and enforced by the courts like any other stipulation between the parties.</p>

<p>Error from Cowley district court; W. T. McBride, judge.</p>

<p>syllabus by the court.</p> <p>1. Foreclosure Sale — Erroneous Statement by Sheriff — Action for Amount of Bid — Sheriff not Estopped. In a foreclosure proceeding two judgments were rendered, which were decreed to be first and second liens on the mortgaged premises. Just prior to the mortgage sale an attorney of the holder of the first lien, who was not familiar with the record, inquired of the sheriff the amount of the first lien, stating that he desired to bid for the land the amount of the lien and costs, and the officer by mistake gave the amount of both liens, a sum $654.30 in excess of the first lien. The property was then offered for sale, and the attorney bid the amount given him by the sheriff, which was the best bid and was accepted. The sale was confirmed, and a sheriff’s deed executed and delivered to the purchaser, after which the excess of the bid over the first lien and costs was demanded by the sheriff, and, being refused, suit was brought to recover it. The purchaser invoked the doctrine of estoppel, claiming that it was misled by the erroneous statement of the sheriff as to the amount of its judgment and that he was estopped to claim such excess. Held, that the sheriff was under no legal duty to inform the judgment creditor of the amount of his judgment, and, as the creditor had the same means of ascertaining the facts as the sheriff had, the doctrine of estoppel is not applicable.</p> <p>2. Equitable Estoppel — Buie Stated. As a general rule, it is essential to the application of the principle of equitable estoppel that the party claiming to have been influenced by the conduct or declarations of another to his injury was himself not only destitute of knowledge of the state of facts, but was also destitute of any convenient or available means of acquiring such knowledge, and that where the facts are known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel.</p>

<p>Error from Cowley district court; W. T. McBride, judge.</p>

<p>Error from Cowley district court; W. T. McBride, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Principal and Surety. A surety will not be-released from liability because of an extension of time given by the creditor to the principal without the consent of the surety,, when, at the time of the extension, the creditor expressly reserves-his remedies against the surety, so that he may sue the surety and the surety in turn may have immediate recourse against the principal.</p>

<p>Error from Coffey district court; W. A. Randolph, judge.</p>

<p>Error from Cherokee district court; A. H. Skid-more, judge.</p>

<p>SYLLABUS By THE COURT.</p> <p>Judgment — Bevivor. A judgment can only be revived without the consent of the judgment debtor when the order of revivor is made within a year after the judgment becomes dormant, and when it has been dormant for more than a year there is no power in the judge or court to revive it, although a proceeding to revive was begun before the year of dormancy had expired.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Conditional Sale — Right of Possession — Replevin. Where a machine is sold upon the condition that title shall remain in the seller until full payment is made, and possession is to be held by the buyer subject to the seller’s order, and, also, that the seller shall be entitled to receive one-half of the earnings of the machine until it is fully paid for, the seller has an option to resume the possession of it if, for any reason, the defendant’s conduct is unsatisfactory, and may maintain an action of replevin to recover the machine, if a demand for possession is refused.</p>

<p>Appeal from Ottawa district court; R. F. Thompson, judge.</p>

<p>Appeal from Reno district court; M. P. Simpson, judge.</p>

<p>Error from Douglas district court; Samuel A. ; Riggs, judge.</p>

<p>Error from Sedgwick district court; D. M. Dale, judge.</p>

<p>Error from Labette district court; A. H. Skidmore, judge.</p>

<p>Error from Bourbon district court; Walter L. Simons, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Partnership — Contract Construed — Estoppel. Whether a written agreement between two or more persons, which is plain and unambiguous, creates a partnership inter se, is a question of law. The agreement in this case creates no such relation. One may estop himself from denying his liability as a partner, where such relationship does not exist in fact, by holding himself out as such, or by negligently permitting one with whom he is engaged in business to do so.</p>

<p>SYLLABUS BY THE COUBT.</p> <p>1. Replevin — Tenants in Common. One tenant in common cannot maintain replevin for the possession of any of the common property against his cotenant, nor against one in possession of the property as the joint agent of the tenants in common.</p> <p>2. -Mortgagees — Fraud. In the absence of fraud, a subsequent mortgagee cannot maintain replevin for the possession of the mortgaged property in the possession of the prior mortgagee or his agent until after such prior mortgage has been satisfied.</p>

Error' from Elk district court,; O. W. Shinn, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>Juror and Jurors — Inconsistent Findings. Where the special findings of the jury and the general verdict cannot be reconciled, the special findings should be treated as the verdict, and the court should render judgment thereon.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Attachment — Bight to Subsequent Order. An order made by a judge at chambers discharging an attachment levied by one asssuming to act as an officer, but not qualified to make such levy, which order is made after the plaintiff has filed a release of the attachment, and in the absence of counsel for plaintiff, without contest, is not an adjudication against the right of the plaintiff to cause the property to be seized under a subsequent order of attachment, based upon the original affidavit filed at the commencement of the action.</p>

<p>Error from Pawnee district court; J. E. Andrews, judge.</p>

<p>Error from Harvey district court; M. P. Simpson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>■Fraud — Petition and Proof — Fatal Variance. An allegation in a petition that certain representations, which defendant is charged with having made, were false, and known by him tobe false, is not sustained by proof that, while he had no knowledge or belief on the subject, he made such representations supposing them to be true, without reason therefor, but nevertheless made them as positively known facts.</p>

<p>Error from Reno district court; M. P. Simpson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury to Employee — Settlement and Satisfaction — Fraud. More than four months after the plaintiff below had suffered an actionable injury to his person by the negligence of the defendant company, he made full settlement therefor with the latter. He was at the time in full possession of his faculties, and thought, from the favorable progress of his injuries in the past, that he would get well within a limited time. Desiring the ■opinion of a physician on the matter before the settlement was made, he called on a doctor in the employ of the defendant company and asked him what he thought about his final recovery, and was told that he did not think his injury was permanent. He knew of the relation between the doctor and the defendant. It turned out that his injury was permanent, and he afterward sought to set aside the settlement and satisfaction, for fraud. Held, that the evidence of fraud in the case was not sufficient, as matter ■of law, to accomplish this, and that an instruction to the jury to return a verdict for the defendant ought to have been given.</p> <p>2. - Opinion not a Basis for Fraud. The expression of an opinion, honestly entertained, as to a matter wherein opinions may differ, does not afford ground to set aside a settlement and satisfaction on the ground that the same was obtained by fraud p and in this case, held, that the evidence shows that only an opinion was given. <</p>

<p>Error from Harper district court; P. B. Gillett, judge.</p> <p>STATEMENT.</p> <p>The facts in this case, summarized from the findings of the court and the undisputed evidence, are briefly as follows : Reeves & Go. had sold to one Willis a thrashing outfit. A firm composed of W. S. Goodley and Joel Goodley, known as Goodley Bros., represented to Willis, that they had 1000 acres of wheat to thrash, and engaged him to thrash it for a stated consideration; they really had but about 500 acres, and in their estimate of 1000 acres they included some 350 acres which another brother, Joseph Goodley, owned. Joseph Goodley, however, was not connected with, or in any way interested in, the affairs of Goodley Bros. The better to secure Reeves & Go. on the amount due to them, Willis procured Goodley. Bros, to enter into an agreement with Reeves & Co. that when Willis should satisfactorily complete their job of thrashing they would pay to Reeves & Go., out of the amount due to Willis, the sum of $500. Willis also procured a like agreement from Joseph Goodley, that he would pay to Reeves & Co. the sum of $550. Willis, at the proper time, proceeded to do the thrashing of Goodley Bros, and finished it with entire satisfaction to them. Goodley Bros, and Willis went to the bank of Bluff City and had a full and satisfactory settlement of. all their matters, and the $500 which Goodley Bros, had promised to pay to Reeves & Co. was left in the Bank of Bluff City, and, at the request of Willis, the bank was to send to Reeves & Co. and obtain Willis’s note, so that 'the payment of $500 might be indorsed thereon, and then transmit this amount to Reeves & Co. After the completion of Goodley Bros.-’ thrashing, Willis moved his machinery to the fields of Joseph Goodley and began on his job. His employees learning that he was to pay out of this job to Reeves & Co. the sum of $550, and fearing that they would not get their wages because of this fact, refused further to proceed with the thrashing of Joseph Goodley’s wheat, and Willis was compelled to move his machinery to another place. Thereupon, Goodley Bros, notified the bank not to pay to Reeves & Co. the $500 which had been left there by Willis for them. Reeves & Co. then procured from Willis an assignment of his claim against the bank for this $500, which had been left there for them, and brought this action against the bank to recover that amount. The bank, setting up these facts, requested the court to bring in Goodley Bros., which was done, and the bank, upon the order of the court, paid the money in dispute into court. Joseph Goodley was never made a party in the case, and never set up any claim to this money, or for any damage arising from the failure of Willis to do his thrashing. The court specifically found as follows :</p> <p>“That Goodley Bros, did not sustain any loss of any kind or nature whatsoever by reason of the said Willis’s quitting work at the time he quit, as all of Goodley Bros.’ wheat had been thrashed in a satisfactory manner, but, by reason of the said Willis’s having failed to comply with his contract with the Goodley Bros., great loss occurred to Joe Goodley, whose wheat was to have been thrashed as a part of the 1000 acres.</p> <p>“That the amount of damage sustained by Joe Goodley, by reason of the failure of the said Willis to comply with his contract and thrash the said 100 acres of wheat contracted by him to be thrashed, was about $600.”</p> <p>The court rendered its judgment that the $500 in controversy in the action and in the hands of the clerk belonged to the defendants, Goodley Bros., and that the same be paid and delivered by the clerk to the defendants, and taxed the costs against the plaintiffs, Reeves & Co. From this judgment plaintiffs in error come here.</p>

<p>Error from Leavenworth district court; Louis A; Myers, judge.</p>

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p>

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p>

<p>Appeal from Finney district court; ¥m. Easton Hutchison, judge.</p>

<p>Error from Marshall district court; F. W. Sturgjss, judge pro tem.</p>

Error from Cowley district court; J. A. Burnette, judge. STATEMENT. On the 1st day of August, 1893, Justin Hollister, a married man and the head of a family residing in Cowley county, executed a mortgage to the First National Bank of Winfield, which, by its.terms, covered .all of the horses then owned by him.

<p>1. Judicial Sale— Collateral Attack. Objections to methods of appraisement and other steps preliminary to a j'udicial sale may not be made in a collateral proceeding.</p> <p>2. Descents and Distributions — Creditors of Heirs. The surviving wife inherits one-half of the real estate of her husband and her undivided share may be levied on and sold for the payment of her debts.</p>

<p>Building and Loan Association— Demurrer to Answer. In an action against a building and loan association by one of its members, the answer of the association- averred that the contract period for payment had not yet matured, and the court sustained a demurrer to it. Me Id, error. '</p>

<p>1. Practice, Supreme Court — Questions for Beview. Where a proceeding for review is begun more than a year after judgment but within a year after a motion for a new. trial was overruled, the only questions for consideration by this court are such as are available under a motion for a new trial. In this ca^e the question whether the special findings were sufficient to sustain the’ judgment was not involved in the motion for a new trial.</p> <p>2. Action to Quiet Title — Parties. The fact that the plaintiffs in an action to quiet title, which in this case were a county and a city, have not the same kind of title to the land is not material. to a defendant who claims under a tax title, and does not render the petition bad.</p>

<p>Taxation — Purchase by Owner. Where the owner of real estate purchases the same at a tax sale, it constitutes a payment of the taxes, though the certificate be issued in the name of another.</p>

<p>Appeal from McPherson district court; M. P. Simpson, judge.</p>

<p>1. Wills— Oral Consent of Wife. While consent to a will, orally made at the time of its execution, is not binding, yet the fact of such consent is admissible in evidence as tending to show the wife’s subsequent attitude of. mind toward the will.</p> <p>2. -Knowledge of Legal Sights. Expressproof of a widow’s knowledge of her rights under the statute is not always necessary, as knowledge on her part may be inferred from her acts and declarations, and from the long failure to dissent from the provisions of the will.</p>

<p>Practice, District Court— Change of Venue— Costs. Where a-change of venue is had in a civil case from one county to another, the former county is not liable to the latter for per diem fees of jurors trying the case, nor for fees of the sheriff or bailiff for attendance at court.</p>

<p>Error from Montgomery district court; A. H. Skid-more, judge.</p>

<p>Error from Franklin district court; Samuel A. Riggs, judge.</p>

<p>Ejectment — Limitation of Action. Agreed statement of facts examined, and held, that the action was not barred.</p>

<p>Taxation — Special Assessment The assessment and levy of a paving tax upon the abutting real property, regardless of improvements, sustained.</p>

<p>1. Practice, Supreme Court — Assignment of Errors. Where the overruling of the motion for a new trial is not assigned as error, all errors of law occurring at the trial are waived.</p> <p>• 2. Foreclosure oe Mortgage — Party Plaintiff. A holder of a note secured by a mortgage is not precluded from recovering thereon by the fact that title was derived as an heir of a decedent by delivery from the executrix of the estate, and not by indorsement or assignment.</p>

<p>Error from Reno district court; M. P. Simpson, judge.</p>

<p>1. Limitation on Action. — Statute Construed. Section 20 of the-code of civil procedure, relating to attempts to commence actions, applies only to the statute of limitations.</p> <p>2. Landlord and Tenant — Lien for Rent — Pleading. Where crops grown and remaining on leased land are attached for unpaid rent, and replevied by one claiming by purchase from the tenant, the unpaid rent is a prior lien, and proof that the attachment is based on an action for such unpaid rent may be made-under a general denial.</p>