Volume 64 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>1. Trial by Jury — Police Court. The constitutional guaranties of the right of a trial by jury apply only to the classes of cases in which the right existed when the constitution was adopted; and juries were not then allowed in local police courts in prosecutions for the infraction of ordinances and local regulations passed under the police power to preserve the health, peace and good order of the people of towns and cities.</p> <p>2. -Appeal from Police Court — Insufficient Bond. The petitioner was tried in police court, without a jury, and convicted of keeping a bawdy-house, in violation of a city ordinance, and when she attempted to appeal from the conviction a bond, with approved surety, in the sum of eighty dollars, to secure her appearance in the district court, was required. She declined to give such bond, and tendered one signed by herself alone, which was refused. Held, that the constitutional guaranty of the right to a jury trial was not denied to her.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Schools and School Districts — Attached Territory — Liability on Bonds. In 1886 a school district which adjoined a city of the first class issued bonds, a part of which were used for the purchase of a site for a schoolhouse, and the remainder, together with the proceeds of another issue in 1888, were expended in the erection and furnishing of a school building. In 1889 the city extended its boundaries, and annexed a large part of the territory of - the school district, including the land on which the schoolhouse was situated. By chapter 128 of the Laws of 1893 (Gen. Stat. 1901, §§ 6428-6430), there was provided a method for a settlement between a school district and a city when a district, or part of it, is annexed by an extension of the city limits. Held, that the law, although retroactive in its effect in this case, is valid, and that a moral obligation rested on the city, after the annexation, to assume payment of the bonds outstanding, issued by the school district to pay for the school building and site, which this law changed into a legal obligation.</p> <p>2. - Statute Construed — “Sehoolhouse” Includes Site. Section 2 of chapter 128, Laws of 1893 (Gen. Stat. 1901, §64291 provides that the board of education, or the district board retaining the sehoolhouse, shall assume the bonded indebtedness incurred in building and furnishing such sehoolhouse. Held, that, under the facts stated in the first paragraph of this syllabus, the city is not only liable to pay the bonds issued by the school district and used for building and furnishing the sehoolhouse, but also the amount of said bonds used for the purchase of a site. The word “sehoolhouse” includes the site.</p> <p>3. - Title of Act Sufficient. The title of chapter 128, Laws of 1893, in its application to section 2 of the act, is sufficiently broad to satisfy the requirements of. section 16, article 2, of the constitution.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Implied License to Gross Bight of Way. Before the public can be said to have acquired an implied license to cross the right of way and tracks of a railroad company, at a place other than a public crossing, so that the company, in the operation of its trains, is bound to anticipate foot-passengers at such place, the path leading to and from such right of way and tracks must be so well defined as to attract public attention and of itself be an invitation to the public to cross. The use must have been continuous and for such length of time that it may be said that the company knew, or in the exercise of ordinary care should have known, that the public was thus using its right of way.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trusts and Trustees — Implication of Law — Ex Maleficio. A woman was in disagreement with her brother over a tract of land. Her brother-in-law advised her to give him a power of attorney to manage the land for her, because, as he said, he could contend better with her brother. He gave her a paper which he represented to be such instrument. Having confidence in him on account of their relationship, she signed the paper without reading it. It was in reality a deed to him of the land. Held, that he became a constructive trustee and was bound to reconvey the land and account for its rents and profits.</p> <p>2. -Limitation of Action. In the case above stated, the action to declare the trust and for the recovery of the rents and profits of the land was an action for relief on the ground of fraud, and could not have been barred until the lapse of two years after the discovery of the deception practiced in procuring the deed.</p> <p>3. - Case Followed. The case of Courtney v. Staudemayer, 56 Kan. 392,- 43 Pac. 758, 54 Am. St. Rep. 592, reaffirmed and followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurisdiction- — Appearance—Divorce and Alimony. An appearance in an action for any purpose other than to challenge the jurisdiction of the court is a general appearance for all purposes of the action. A defendant in an action for divorce, alimony, and custody of children, entering an appearance for the purpose of contesting the right of plaintiff to the custody of the children, enters a general appearance.</p> <p>2. -Fraudulent Inducement. The defendant in an action brought in this state on a judgment rendered in a sister state may defend on the ground that he was induced to submit himself to the jurisdiction of the court of the sister state by fraud on the part of the plaintiff.</p>

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

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

<p>SYLLABUS BY THE COUBT.</p> <p>1. Mortgages — Recording Assignment — Review of Foreclosure Proceeding — Effect of Repeal of Statute. At the time of the trial and judgment in a foreclosure suit in the district court a statute was in force providing that an unrecorded assignment of a mortgage, or an assignment recorded after a certain date, could not be received in evidence against the mortgagor. Pending proceedings in error in the supreme court to reverse said judgment, the law was repealed without a saving clause. The judgment of the court below was reversed with directions to enter judgment for the defendants (the mortgagors)in accordance with the views expressed in the opinion. Feld, that this court in deciding the case reviewed only such assigned errors as were alleged to have been committed by the court below, and that it did not and could not consider the effect of the repealing act on the rights of the parties. The judgment of the lower court must be tested by the law existing at the time of the trial.</p> <p>2. -Erroneous Judgment on Mandate after Repeal of Statute. A judgment rendered for the plaintiff on an agreed statement of facts was reversed by this court with directions to the trial court to enter judgment in accordance with the views expressed in the opinion in favor of defendants. The reversal was had because the court below had not given effect to a statute which made an unrecorded assignment of a mortgage inadmissible as evidence against certain mortgagors (the defendants).' Pending the proceedings in error the statute was repealed. Feld, that the court below erred in entering judgment in favor of the defendants on the mandate of this court after the repeal of the statute.</p> <p>3. Evidence — Statutory Rule Repealed — Saving Clause Construed. The general saving clause, found in section 7342, General Statutes of 1901, providing that the repeal of a statute does not affect a right accrued, duty imposed, penalty incurred or proceeding commenced under the statute repealed, does not save to a party the right to try a pending cause under a rule of evidence established by a repealed statute.</p> <p>4. Evidence — Vested Right — Case Followed. A party can have no vested right in a rule of evidence. The case of Sanders v. Greenstreet, 23 Kan. 425, followed.</p>

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

<p>Error from Wyandotte district court; E. L. Fischer, judge.</p>

<p>SYLLABUS BY THE COUBT.</p> <p>1. Office and Officebs — Rights of Officer de Jure to Salary. F., the incumbent of a city office, held over and refused to give possession after B., his successor, had been duly elected. Pending proceedings in the nature of quo warranto, begun in this court by B. to oust F., the latter surrendered the office. B. then brought an action in the district court against F. to recover the salary of the office during the time he had been deprived of it, and thereafter the proceedings in this court were dismissed. Held, that B. was entitled to judgment for such salary, and that section 5154, General Statutes of 1901, had no application to the case.</p> <p>2. - Other Earnings of Officer de Jure Immaterial. A public officer is entitled to his salary as an incident to the office, and not by force of any contract. It is no defense to an action for salary that the person suing earned more than the amount of the same in another employment during the time the possession of the office was withheld from him.</p>

<p>SYLLABUS BY THE COURT,</p> <p>Personal Injuries — Evidence of Negligence Insufficient. Id rd action to recover damages for personal injuries sustained by the falling of a bar of lead, where the only negligence relied on is that the stack but of which the bar fell was carelessly or negligently built, a demurrer to the evidence should be sustained, where there is no testimony tending to show that the stack was carelessly or negligently built, or that it fell because it was improperly built,</p>

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

<p>Error from Dickinson district court; O. L. Moore, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Mortgage — Tax Lien — Merger. A mortgagee of land cannot defend against the lien of a tax-certificate holder on the ground that a gift to the latter of a quitclaim deed from the owner of the land merged the tax lien in the land title, without evidence showing an intent to produce the merger.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Injury at Crossing — Contributory Negligence— Question for Jury, When there is evidence tending to show that a traveler injured by a train at a railroad crossing might have assured his safety by stoping to look and listen better for the approaching train, it is error to refuse an instruction submitting to the jury the question of his obligation to stop.</p>

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

<p>, Error from Orawford district court; Walter L. Simons, judge.</p> <p>STATEMENT.</p> <p>This action was begun by defendant in error, plaintiff below, in the district court of Crawford county, to recover damages for personal injuries alleged to have been caused by the negligence of plaintiff in error, defendant below. A jury trial was had and a verdict returned in favor of plaintiff below for $1000, upon which verdict judgment was entered, and from which judgment these proceedings in error are prosecuted.</p> <p>; Plaintiff below in her petition alleged that defendant below owned and operated a railroad extending eastward through the city of Pittsburg, Crawford county, Kansas ; that Elm street, in said city, extended north and south, and was crossed by defendant’s road at right angles ; that at seven o’clock a. m. on the 21st day of December, 1892, plaintiff was traveling south on the sidewalk on the west side of Elm street; that when she reached defendant’s track there was a locomotive standing still, west of the sidewalk, and with the end of its pilot within two or three feet of the west edge of the sidewalk; that plaintiff'stopped for two or three minutes to see if the engine was about to move, and then attempted to cross the track; that when she was about midway between the rails of the track the person in charge of the engine, without notice or warning of any kind, suddenly started the engine forward toward the east and violently struck plaintiff with the pilot of the engine, throwing her forcibly to the ground, injuring and bruising her and breaking her left arm, whereby she was permanently and seriously injured and suffered severe physical and mental pain and anguish, •to her damage in the sum of $1200 ; that said injuries were caused by the “gross and wanton negligence of defendant ... in running said engine on and upon said plaintiff while on said street and sidewalk, and in violently starting said engine forward from a standing position without any notice or warning to plaintiff” ; that plaintiff had been unable to work, whereby she was damaged in the sum of $500, was compelled to employ medical attendance, to her damage in the sum of $74, and to employ a nurse, to her damage in the sum of $25. Plaintiff asked damages in the sum of $1800. Defendant answered : (1) A general denial; (2) contributory negligence. Special questions of fact were submitted to the jury and answered as follows :</p> <p>“1. How old was plaintiff at the time of the accident complained of? Ans. Forty years.</p> <p>“2. Was the plaintiff a person of sound mind and judgment at the time of the accident? Ans. Yes.</p> <p>“3. Was plaintiff walking on the west side of Elm street in the city of Pittsburg on the morning of December 21, 1892? Ans. Yes.</p> <p>“4. Was plaintiff going south on Elm street before she crossed the railroad-tracks of the defendant on the morning of December 21, 1892? Ans. Yes.</p> <p>“5. What time in the morning of December 21, 1892, did plaintiff reach the crossing of Elm street? Ans. Twenty minutes to seven, a. m.</p> <p>“6. Did plaintiff cross one or more tracks of defendant before reaching the one on which she claimed she was injured ? Ans. Yes.</p> <p>“7. Did plaintiff see an engine standing on the track when she approached the same? Ans. Yes.</p> <p>“8. Did plaintiff cross the track on which the engine stood immediately upon reaching it, or did she stop and wait before crossing? Ans. Waited.</p> <p>“9. If plaintiff stopped and waited, how long did she wait before crossing? Ans. Three or four minutes.</p> <p>“10. How wide was Elm street at the crossing? Ans. About sixty or seventy feet.</p> <p>“ 11. Was plaintiff compelled to cross the railroad-track on which the engine was standing immediately in front of the engine, and did she do so voluntarily? Ans. She did it voluntarily.</p> <p>“12. When plaintiff started to cross, did she hurry across or walk slowly? Ans. Fast walk.</p> <p>“13. How far was the nose of the pilot of the engine west of the west edge of the sidewalk when plaintiff started across. Ans. Three or four feet.</p> <p>“14. Was the engine standing still when plaintiff started to cross the track, or was it moving slowly forward? Ans. Standing still.</p> <p>“15. Was the engine in plain view of the plaintiff when she stood and waited before going across defendant’s track? Ans. Yes.</p> <p>“ 16. Was the engine steamed up and ready to move at the time plaintiff arrived at said crossing? Ans. Yes.</p> <p>“17. Was steam escaping from the cylinder-cocks on the engine while plaintiff stood and. waited before going across defendant’s track? Ans. Yes.</p> <p>“18. Was there anything to obstruct plaintiff’s view of the engine while she stood and waited on the sidewalk? If so, what? Ans. No.</p> <p>“19. Was there anything to prevent plaintiff from crossing said track at a safe distance east from where the engine stood? If so, what? Ans. Nothing.</p> <p>“20. When did plaintiff first discover that she was injured? Ans. After walking south about 100 yards and returning.</p> <p>“21. Why did plaintiff stop and wait before crossing defendant’s track? Ans. To see if engine was going to move.</p> <p>“22. If plaintiff had not stopped and waited when she arrived at defendant’s tracks would the injury complained of have occurred? Ans. No.</p> <p>“23. Did plaintiff have ample opportunity to cross defendant’s tracks with safety from the time she arrived at the same until the time the engine started up? Ans. Yes.</p> <p>“24. Did plaintiff have reason to believe said engine might start up at any minute at the time she started to cross defendant’s tracks ? Ans. No.</p> <p>“25. Before plaintiff started across defendant’s track, after stopping and waiting, did she say anyr thing to the men on the engine? If so, what? Ans. No.</p> <p>“26. Did the men. on the engine see plaintiff as she approached the track or while she stood and waited before crossing? Ans. No evidence to that effect.”</p> <p>“35. If you find for plaintiff, how much do you allow her for physical suffering? Ans. $700.”</p> <p>“41. If you find for the plaintiff how much do you allow her for loss of time? Ans. $300.”</p> <p>“44. Was plaintiff familiar with the crossing where the accident complained of occurred? Ans. Yes.</p> <p>“45. Was the street, at the point where the accident complained of occurred, dry or muddy? Ans. Dry.</p> <p>“46. What was the condition of the weather on the morning of the 21st of December, 1892? Ans. Cloudy.”</p> <p>There was evidence in the case tending to show that the only sidewalk upon Elm street at the place where the accident occurred was the one on the west side thereof, which was followed by the plaintiff: that locomotive No. 160 of the railway company was brought from the roundhouse on to- the tracks between six and seven o’clock on the morning of the accident, and the men in charge thereof testified that from their places in the cab they could have seen Mrs. Dawson if she had gone in front of the engine, as she claims she did. They denied any knowledge of her presence or injury, but, from all of the facts and circumstances in the case, the jury undoubtedly believed that she was injured by that engine, substantially in accordance with her testimony.</p> <p>The errors assigned are as follows :</p> <p>1. - The court below erred in overruling the objection of plaintiff in error, defendant below, to the introduction of any evidence under the petition, for the reason that the petition did not state facts sufficient to constitute a cause of action.</p> <p>2. The court below erred in overruling the demurrer of plaintiff in error, defendant below, to the evidence of defendant in error, plaintiff below.</p> <p>3. The court below erred in refusing to instruct the jury to return a verdict in favor of defendant, as requested by plaintiff in error, defendant below.</p> <p>4. The court below erred in refusing to give to the jury the following instruction, requested by plaintiff in error, defendant below :</p> <p>“11. You are further instructed that under all the circumstances of this case it was plaintiff’s duty to watch defendant’s engine carefully during all the time she was crossing defendant’s track; and if you find from the evidence in this case that plaintiff was not so watching defendant’s engine, then she was guilty of negligence and cannot recover.”</p> <p>5. The co urt erred in instructing the j ury as follows :</p> <p>“It was the duty of the plaintiff in crossing the said track to use and exercise ordinary care to avoid injury ; and if she failed to exercise ordinary care, or in other words, if she was guilty of ordinary negligence which contributed directly or proximateiy to the alleged injury, then the defendant is not liable for the alleged injuries, even if they were received by her. By ordinary care is meant that degree of care which men in general exercise in respect to their own concerns ; and by ordinary negligence is meant the omission or want of that degree of care which men in general exercise in respect to their own concerns. The burden of proof is upon the defendant to show by a preponderance of the evidence that the plaintiff was guilty of contributory negligence. With that exception, the burden of proof is upon the plaintiff to prove her case by a preponderance of the evidence.”</p> <p>6. The court below erred in overruling the motion of plaintiff in error, defendant below, for judgment on the special findings of the jury.</p> <p>7. The court below erred in overruling the motion of plaintiff in. error, defendant below, for a new trial.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Special Findings — Conflict with Evidence — Duty of Trial Court. When a special finding upon a material matter in issue is submitted to a jury for determination, the party submitting such special question is entitled to an answer in harmony with the evidence in the case, and where the answer of the jury thereto is in direct opposition to the evidence, or is unsupported by any evidence, it is the duty of the court to set aside the verdict and award a new trial to another jury.</p> <p>2. Practice, Supreme Court— Sufficient Record. Record examined, and held, the challenge made to its sufficiency to authorize a review of errors assigned not sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Stockholder’s Liability — Bankas Stockholder — Ultra Vires— Evidence. In an action against a national bank upon its double liability as a stockholder in another corporation, it was alleged in the petition that it acquired such stock in a particular manner. The evidence showed that it acquired it in a different manner, neither of which was ultra vires. Held, that there was not a fatal variance between allegation and proof; the vital fact being, was the bank a stockholder, not how did it become such.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation or Actions — Application of Statute — Pleading. A statute of limitations can be plead only as a defense. It cannot be made the basis of a claim for affirmative relief. (Corlett v. Insurance Co., 60 Kan. 134, 55 Pac. 844; Burditt v. Burditt, 62 id. 576, 64 Pac. 77.)</p> <p>2. Pleading — Effect of Demurrer. Where a demurrer is lodged against an answer because of failure to state facts sufficient to constitute a defense, the demurrer searches the record and should be carried back and sustained as to the petition, in case the allegations of the petition are insufficient to constitute a cause of action or uphold a judgment for the relief sought. {The State, ex rel., v. Comm’rs of Pawnee Co., 12 Kan. 426.)</p>

<p>Error from Barton district court; Ansel R. Clark, judge.</p> <p>STATEMENT.</p> <p>One John M. Becker, for several years before the 1st day of August, 1897, had been an actual resident of Rawlins county, Kansas. He was a bachelor, and lived upon and farmed a half-section of land which he owned in that county. He was erratic in his habits and was thought by some to be of unsound mind. On the 1st day of August, 1897, he left his home in Rawlins county with his wagon, team, and a few neccessary cooking utensils and other conveniences for camping out, and came to the home of William Hoff-master, in Barton county, where he stayed and worked for Mr. Hoffmaster for about six weeks. He, then, with his team and wagon and other belongings, journeyed through the Indian territory into Texas, where he passed the time until about the 1st of March, 1898, when he again returned to Mr. Hoff-master’s place, where he worked until the 8th day of April, 1898. On that day he shot and killed the daughter of Mr. Hoffmaster and set fire to his barn, which was consumed, to the great damage of the owner. He made his escape and concealed himself, but in the course of a day or two was taken into custody by the sheriff of Barton county by virtue of a warrant issued by a justice of the peace, charging him with the murder of the young lady. He was removed to the jail of Reno county, where he remained until the 25th of April. On the 11th of April, Mr. Hoffmaster commenced a civil action in the district court of Barton county to recover from Becker damages caused by the burning of the barn, and caused writs of attachment to be issued to the sheriffs of Barton and Rawlins counties, which attachments were levied upon the property of Becker in both counties. These writs were duly returned to the district court of Barton county with the doings of the sheriffs thereunder indorsed, thereon. At the same time summons was issued to the sheriff of Barton county for Bécker, which was returned not served on the 20th day of April. On the 25th day of April Becker was brought from Hutchinson before a justice of the peace of Barton county for his preliminary examination, and on this date an alias summons was issued and served upon Becker while in custody. Becker was returned to the jail of Reno county and remained there until June 13, when he was brought by the sheriff back to Barton county that his motion for a change of venue in the criminal case might be heard before the district court of that county. At this time a third summons was served upon him in the Hoffmaster case. On the evening of that day Becker was taken from the custody of the sheriff by a mob and hanged.</p> <p>Becker had filed on June 4, in the Hoffmaster case, a motion to quash the summons which had been served upon him on April 25, for the reason .that he was exempt from service while in custody and that he could not be legally served with summons in' Barton county, because brought there by the officers against his will. This motion had not been disposed of at the time of his death. Shortly after the death of Becker, plaintiff in error was duly appointed administrator of his estate, and on June 21 there was filed in the district court a motion by Hoffmaster setting up the facts of the commencement of his said case against Becker, the issuance of the summons and orders of attachment and the levy of the same; that the second summons was issued on the 25th day of April, and that the same was duly served on the same day by the sheriff of Barton county ; that Becker had died intestate on the 13th day of June, and that plaintiff in error, Moses, had been duly appointed his administrator, and asked that the- action might be revived against Moses as such administrator. Upon this motion said administrator made the following indorsement:</p> <p>“State Of Kansas, Barton county, ss.: I, G. N. Moses, administrator of the estate of John M. Becker, deceased, hereby waive notice of the above application and motion to revive the foregoing action against me as administrator of the estate of John M. Becker, deceased, and consent that said order of revival may be made by the district court of Barton county, Kansas, on the 22d day of June, 1898, or as soon thereafter as may suit the convenience of the said court.</p> <p>“Given under my hand, this the 21st day of June, 1898. G. N, Moses,</p> <p>Administrator of the estate of John M. Becker, deceased</p> <p>The action was thereupon revived in the name of the administrator. No further appearance was made by the administrator until the 9th day of November, 1898. Prior to that date a default judgment had been taken in the case, and on that date there was filed in the court an application to set aside this default judgment, which application contained reasons therefor. It concluded as follows :</p> <p>“Affiant says that he believes that said administrator has a good and meritorious defense to. the maintenance of said action by the plaintiff, and asks therefore that the default taken therein be set aside ; that sai'd administrator, through this affiant and the said Martin (another attorney), be permitted to amend the original motion filed by him in said action so as to make it represent the said administrator, and for such other steps as deemed by the administrator proper for the protection of the interests of the said estate and the said administrator, and for such other and further relief as seems to the court proper and right."</p> <p>On November 14, 1898, the administrator filed a motion to quash the summons served upon Becker, for the reason that the same was served while he was “in the custody of the officers and exempt from such service.”</p> <p>On November 22, 1898, this motion was by the court overruled, and thereafter upon due hearing the court rendered judgment for the plaintiff as prayed for in his petition and sustained the orders of attachment, and directed that the funds derived from the sale of the attached property should be applied to the payment of plaintiff’s judgment. From this judgment the administrator, as plaintiff in error, comes to this court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Special Findings — General Ver diet — Inconsistent Findings on Collateral Facts. When all the special findings of a jury-vital to the issue presented are in harmony with a general verdict for the plaintiff, it is error for the trial court to award judgment for the defendant upon findings collateral to the issue, such findings upon collateral facts not being destructive of the general verdict or plaintiff’s right of recovery.</p> <p>2. Replevin — Custody of Property — Description. When at the trial of an action in replevin it develops that by the levy of the writ of replevin property has been brought into and remains in the custody of the court to be disposed of upon its order, of which property the plaintiff is and the defendant is not entitled to possession, it is the duty of the court in disposing of the same to award possession to the plaintiff, where it belongs, and not to the defendant, although from a comparison of a description of the property with the description given in the pleadings and writ of replevin it may not appear that such descriptions are identical.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Ultra Vires — Municipal Corporations — Manner and Time of Exercise of Power. An act by the officers or agents of a municipal corporation, such as is a township in this state, which is in excess of the express or implied powers of such corporation, is absolutely void, and imposes no obligation upon it; but an act which in itself is well within such powers is binding upon it, if executed, where the only objection thereto is that it was not performed in the manner or at the time designated in the statute.</p> <p>2. -Highway Commissioners — Construction of Hoads — Liability. It is made the duty of the board of commissioners of highways of any township in this state to construct permanent roads in their townships “whenever available means at their disposal will permit.” This does not constitute a limitation upon their general power to build bridges, nor render their acts in building a needed bridge, when the available means at their disposal are not sufficient to pay for the same, ultra vires, so as to prevent one who has furnished material therefor from recovering the price thereof from such township.</p> <p>(Overruling Walnut Twp. v. Heth, 9 Kan. App. 498, 59 Pac. 289).</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Levy of Taxes — Authority of County Glerk. The law delegates authority to the boards of county commissioners in the different counties in Kansas, and to no other person, to levy county taxes. A county clerk has no authority to levy a tax on the property of an individual, and such levy when made is void.</p> <p>2. - Involuntary Payment — Recovery. A tax levied without authority of law and involuntarily paid may be recovered back in an action for that purpose.</p>

<p>Error from the court of appeals, southern department; A. W. Dennison, B. F. Milton, M. Schoonover, judges.</p>

<p>Appeal from Wyandotte district court; E. L. Fischer,, judge.</p> <p> In banc. </p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Homesteads and Exemptions — Oeaupationby Widower Alone. The constitution exempts homesteads only when occupied as a residence by the family of the owner”; therefore, a homestead claimant, whose wife is dead, and whose children have grown to maturity and moved away and ceased their dependence on him and no longer constitute part of his family, no one else being associated with him in the family relation, cannot continue to retain the homestead exemption.</p> <p>2. -Judgment Lien. A homestead cannot be acquired on land to the prejudice of an existing judgment lien.</p>

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

<p>• SYLLABUS BY THE COURT.</p> <p>Parties to Actions — Assignment of Account — Seal Party in Interest. One holding by written assignment a verified itemized account is not the real party in interest, and cannnot maintain an action thereon in his own name where it is shown that, by a contemporaneous oral agreement, he has agreed to pay the full amount thereof, when collected, to his assignor; and this is true notwithstanding the assignor testifies that the defendant in the action does not owe her anything, that the whole amount is due her from the plaintiff, and that he is to pay her provided he recovers in the action.</p> <p>(Overruling Krapp v. Kldridge, 33 Kan. 106, 5 Pac. 372.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>Title and Ownership — Consignment of Grain — Liability for Damages. A consignor of grain which was delivered to a railway company for shipment drew a draft on consignees, and attached thereto bills of lading issued to him by the carrier. The draft was indorsed and delivered by the payees, together with the bills of lading, to a bank which paid to them, the amount of it. The drawees accepted and paid the draft. Held, that neither the bank nor the payees were liable to the consignees of the grain (the drawees) for a failure of title in the drawer of the draft to the property shipped.</p>

<p>Original proceeding, in quo warranto.</p> <p> In banc. </p>

<p>Error from Ford district court; Wm. Easton Hutchison, judge.</p>

<p>Error from Nemaha district court; ¥m. I. Stuart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — School Lands — Voidable Sale — Effect of Patent from State. The statute provides, relative to school lands:</p> <p>“. . . Lands purchased under this act shall be subject to taxation as other lands; in case of non-payment of any taxes charged thereon the said lands may be sold as mother cases, but the purchaser at such sale shall be subject to all the conditions of the bond of the original maker and of the certificate of purchase.”</p> <p>Under this provision, where the land has been sold at such tax sale for an amount substantially greater than the taxes and costs legally chargeable thereon, such sale, being voidable, is not sufficient to cut off the rights of the holder of the school-land certificate and authorize the issuance of a patent to such land by the state to the holder of the tax-sale certificate. And where a patent has been issued to the purchaser at such tax sale, the grantee therein will be decreed to hold the legal title of the land for the benefit of the owner of the school-land certificate and required to convey the same to such owner upon proper payment made on equitable principles.</p>

<p>Error from court of appeals, northern department; John H. Mahan, Abijah Wells, and Sam’l W. Me-' Elroy, judges.</p>

<p>Error from court of appeals, southern department; A. W. Dennison, B. F. Milton, and M. Schoonover, judges.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Parol Evidence — Assignment of Judgment — Security for Debt. Parol evidence is admissible to show that the assignment of a Judgment, although absolute, was only intended as a security, and it may also show the amount of indebtedness it was intended to secure.</p> <p>2. Fraudulent Conveyance — Assignment of Judgment — Fraud on Creditors. Where B., having Just recovered a Judgment for $912.24, secured by a lien on real estate, unsolicited, called upon his attorney and stated to him that he was indebted to R. in the sum of $200 or $250, and he wished to make R. safe if anything ever came out of it (referring to the Judgment), and also stated that-there was an old Judgment against him which he wished to avoid, and instructed such attorney to assign the entire Judgment to R., and that he would speak to R. about it, such assignment is void, part of the consideration being to hinder, delay and defraud B.’s creditors.</p> <p>3. -No Recovery by Grantor or Heirs. Where property is assigned with a fraudulent intent and for a fraudulent purpose) neither the party so assigning nor his heirs can recover it or its. value.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Sureties — Terms of Bond — Prospective and Retrospective Liability. Where the terms of a bond clearly show that it was intended to be retrospective as well as prospective, sureties may he held liable for defaults occurring before the execution of such bond.</p> <p>2. - Officer’s Bond — Term of Office• — Date of Bond.- A bond of an officer recited that he had been elected for the year beginning January 1, 1885, and ending December 31, 1885, and had accepted the office, and it was conditioned that if he should faithfully perform the duties of his office “during said year” the bond should be void and of no effect, but otherwise should remain in full force and effect. The officer was not elected until some time after the first of the year, but had held successive terms and been continually in office for several years before and after 1885. Held, that the surety made himself responsible for the defaults of the entire year of 1885.</p> <p>3. -Evidence of Time of Misappropriation — Burden of Proof. Presumably, money which came into the officer’s hands and should have been there was still in his possession, and the burden was on the surety to prove that the funds presumably in the hands of his principal had been misappropriated before he became liable on the bond.</p> <p>1. -Limit of Liability — Allowance of Lnterest. While the penalty of the bond fixes the limit of liability of the surety at the time the liability arises, yet if the principal or surety fail to discharge that liability when it matures, interest may be allowed on the amount from the time the liability arises, even if the amount of recovery shall exceed the penalty.</p> <p>5. -Limitation of Action — Fraudulent Concealment of Defalcation. Where an officer and agent misappropriates money entrusted to him, and fraudulently conceals his defalcations, the statute will not begin to run until the discovery of the fraud and of the breach of the condition of the bond.</p> <p>6. -Identity of Liability of Principal and Surety — Concealed Fraud of Principal. The liability of the principal is that of the surety, and where the statute of limitations does not begin to run because of the concealed fraud of the principal, the surety cannot invoke the aid of the statute on the ground that he was innocent of the fraud.</p> <p>7. -Failure of Obligee to Detect Defalcation — Pecovery. Where the officer bore a good reputation and was generally believed to be honest by the obligees in the bond, and they had no knowledge or notice of unfaithfulness, the fact that the books were open to their inspection and that they failed to detect the defaults which a close examination might have disclosed will not defeat a recovery on the bond, if they acted in good faith toward the surety.</p>

<p>Error from the court of appeals, southern department ; A.W. Dennison, B. F. Milton, and M. Schoonover., judges.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Construction of Bequest — Bife-interest in Personal , Property. The following are the material provisions of the will in controversy:</p> <p>“I give to my wife, Lois Walker, all my real and personal property, for her use and benefit so long as she lives, then to be divided as follows: First, Virgil Anson Walker to have the interest of $2500, for his benefit and use as long as he lives, then to be divided among the other heirs.</p> <p>“ Second. The balance to be divided equally among the other heirs, which is Elizabeth Luther, Amelia P. Ogden, Olive Walker, Francis M. Walker, Minervia Ureta Moyer, Lois Alice White, and Mary Jane Mott.”</p> <p>Such a will is to be construed as a bequest of a life-interest in the personal property of which the testator was the owner when he died to said Lois Walker, and said Virgil Anson Walker having deceased before said will became operative, the remainder over must be regarded as having been bequeathed to the “other heirs” therein named.</p> <p>2. -Income from Personal Estate — Rights of Remain- ' der-man. In the absence of a direction to the contrary, one who, i under a will, takes a life-interest'in personal property is allowed to receive and use only the income or profits thereof, and the ' rights of the owner of the life-estate and those of the person en-1 titled to the remainder must be treated as entitled to equal pro-i tection.'</p>

<p>Error from Nemaha district court; Wm. I. Stuart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Conveyances — Writing both Contractual and A writing properly drawn, signed, witnessed and acknowledged may be contract in part and testamentary in part.</p> <p>2. -Life-estate in Grantor — Other Reservations. Aeonveyance of real estate otherwise legal is neither void nor revocable because it is subject to a life-estate in the grantor, the payment of his debts, expenses of his last- illness and funeral, certain bequests.</p> <p>3. -Description of Property — Extrinsic Evidence. A deed is not void for want of description when by extrinsic evidence it may be made certain.</p>

<p>Error from Cloud district court; F. W. Sturges, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Payment to Payee — Knowledge and Conduct of Indorsee. Where the holder of a promissory note has for years authorized and ratified the reception of interest payments thereon by the payee named in the note, without having the coupons representing such interest in his possession at the time of receiving the money; and where such holder is chargeable with knowledge that during the period covered by such interest payments such payee had held himself out as the owner of said note to those obligated to pay the same, and is still so holding himself out to such interested parties, who are deceived thereby; and where such holder has notice that at the maturity of the note such payee will, pursuant to his usual course of business, without revealing the facts as to ownership, receive the amount of principal due on such note, it is the duty of such holder, if he desires a change in the methods which have been theretofore and are thereafter likely to be pursued, to notify those who are bound to pay it that he is the owner of the note and that future payments may not be made to such payee, and if such holder fails so to do he will be held bound by a payment made in good faith of such note at the place of payment designated therein and to such payee.</p> <p>2. - General Buie as to Payment — Exceptions. Ordinarily one bound to pay a negotiable promissory note is not protected if he pay it to the payee thereof and at the place of payment named in the note without the production of the paper by the person receiving the money, but to this rule there are exceptions, and under the facts in this case the decision of the trial court that the rights of the owner of the note in controversy in this action are concluded by such a payment will not be disturbed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Limitation oe Action — Foreclosure of Mortgage — Payments of Interest — Homestead. A mortgage on land occupied as a homestead was given by a husband and wife to secure the payment of a .note executed by the husband alone. Payments of interest were made on the note from time to time by the husband without the knowledge of the wife. More than five years after the maturity of the debt, but within five years after the last payment of interest, an action was brought to recover on the note, and to foreclose the mortgage. Held, that the mortgaged land was subject to sale under a decree of foreclosure for the payment of the note.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Larceny■—Evidence—Unexplained Possession of Stolen Goods. While the personal and unexplained possession of recently stolen property is not to be treated as a conclusive presumption of guilt, it is prima facie evidence of the larceny of the property, and may be submitted to the jury as a question of fact from which guilt may be inferred.</p> <p>2, -Instructions — Presumption of Guilt. An instruction herein examined, and it is held, that the court did not treat such possession as conclusive presumption of guilt, but fairly left the question of guilt to be determined by the jury from such possession and the other facts in the case. .</p> <p>3. - Sale of Stolen Property — Inadequate Price. The sale of stolen property by the accused at a grossly inadequate price is a fact which the jury may consider in determining his innocence or guilt.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Illegitimate Child — Presumption of Law. A child born in wedlock is presumed to be legitimate, and this presumption cannot be overthrown by the general and notorious recognition of it by a putative father, or by his assertions, however solemnly expressed, that the child was begotten by him.</p> <p>2. -Evidence Necessary to Overcome Presumption. Testimony was introduced which tended to show that a woman who claimed to be the illegitimate daughter and sole heir of an unmarried man was born in wedlock. Held, that the presumption of legitimacy could only be overcome by the clearest and most conclusive evidence of non-access by the husband.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Demurrer—• Time of Trial. Section 315 of tbe code (Gen. Stat. 1901, §4763) provides when actions are triable. Under its provisions, when a demurrer to a petition is overruled but is not adjudged frivolous, and leave to answer is given, the case is not triable upon issues of fact joined at the term of court such ruling is made; and it is error to compel a trial of the case over the objection of a party to the action, made upon the ground that the action is not triable upon issues of fact at such term.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Injury by Fire — Judgment on Findings. In an action against a railroad company for damages caused by fire set out by one of its locomotives in the operation of the road, judgment will not be directed on the special findings of the jury in favor of the company, in the absence of a finding of contributory negligence of the plaintiff, unless the answers to the particular questions of fact negative every affirmative charge of negligence averred in the petition.</p>

Error from Reno district court; M. P. Simpson, judge. STATEMENT. In the year 1884, Dr. John Gilmore, a wealthy widower, father of plaintiff in error, father-in-law of defendant in error, and grandfather of George Asbury, ¡son of defendant in error, a resident of Indiana, owned ‘a section of raw prairie land in Reno county, unimproved except some fencing thereon. At this time the first wife of defendant in error was deceased.

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleading and Practice — Invited Ruling. The general rule that a party can secure no advantage from an invited ruling applies where the court proceeds with the trial upon the erroneous theory adopted by the parties in their pleadings, when the party complaining, by his pleading, first induced the form of pleading adopted.</p> <p>2. Insurance — “Total Loss” Defined. The phrase “total loss,” or its equivalent, “wholly destroyed,” when applied to insurance, does not mean the complete annihilation or extinction of the property insured. Nor does the term require that the portion of the property remaining after loss shall have no value for any purpose whatever. It means only such destruction or loss of the property as deprives it of the character in which it was insured. ;</p> <p>3. - Question for Jury. Whether a loss by fire of property, covered by a policy of insurance is total or only partial is, or-| dinarily, a question of fact for the jury. '</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Bight of Way — Ejectment—Estoppel. Where a landowner has stood by and permitted a railroad company possessing the right of eminent domain to build and put in operation a line of road across his land, and thereby create large interests useful to the company and the public, without first having obtained the authority so to do by the exercise of the right of eminent domain or otherwise, he cannot maintain an action of ejectment against such company to recover the right of way occupied by it and necessary for the operation of its road.</p>

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

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

<p>Error from Miami district court; John T. Bueeis, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Estoppel by Pleadings in Trial Court — Inconsistent Claims. A party litigant must not assume inconsistent positions in the litigation. Hence, when the owner of property, by its pleadings in the trial court, affirms the existence of certain mechanics’ liens thereon, alleging the existence of the same as a breach of the obligation of a contractor’s bond conditioned to construct and turn over to the owner a building on such property, free from liens, and demands judgment for damages for such breach against the contractor and his bondsmen; and when the contractor, by his answer to such pleading, specifically and positively challenges the validity of such liens, and the owner by reply takes issue thereon, and after judgment is entered upholding such liens, the latter alone prosecutes error to this court, it will not be heard to dispute with the claimants the validity of their liens. Its position assumed in this court is entirely inconsistent with that taken in the trial court.</p>

<p>Error from Phillips district court; A. C. T. Geiger, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Homesteads and Exemptions— Note and Mortgage — Limitation of Action. A husband and wife joined in the execution of a note and of a mortgage on their homestead to secure it. The husband made two acknowledgments in writing to the holder of the note, admitting an existing liability thereon and promising to pay the debt. The note never was barred by limitation as against the husband, but it would have been except for these written acknowledgments. The wife made no payments or promises to pay. Held, that the mortgaged property was subject to sale for the payment of the note.</p> <p>2. - (Jase Followed — Case Distinguished. The case of Jackson v. Longwell, 63 Kan. 93, 64 Pac. 991, followed, and Bank v. Hardman, 62 id. 242, 61 Pac. 1131, distinguished.</p>

<p>Error from Decatur district court; A. C. T. Geiger, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquors — Defective Information. An information for the offense of maintaining the nuisance of a place where intoxieating liquors are illegally sold must allege concurrence of time in the keeping of the place and the sale of the liquors; hence, an information which charges that, at a time in the past, the de-. fendant kept a place where liquors “are sold,” is bad.</p>

<p>syllabus by the court.</p> <p>1. Jury and Jurors — Talesmen—Code Construed. Section 273 of the code (Gen. Stat. 1901, § 4720), which provides that “ when the requisite number of jurors cannot otherwise be obtained, the sheriff shall select talesmen to supply the deficiency from the bystanders or the body of the county, as the court may direct,” by section 208 of the criminal code (Gen. Stat. 1901, § 5650) made applicable to the impaneling of jurors in criminal cases, is a special provision, to be applied only when it is found by the court that additional jurors necessary to constitute a panel cannot otherwise be obtained.</p> <p>2. -Empty Jury-box — Insufficient Reason for Talesmen. Additional jurors were necessary to constitute a panel. The defendant requested the names of additional jurors to be drawn from the jury-box, as provided by section 1 of chapter 121, Laws of 1899. The fact, alone, that the jury-box was found empty did not authorize the trial court to proceed under the provisions of section 273 of the code (Gen. Stat. 1901, § 4720) by ordering the sheriff to summon talesmen from the bystanders or body of the county to complete the panel, in the absence of a further showing that the jury-box could not at the time be legally filled or that a jury could not be legally obtained.</p>

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

<p>Error from Logan district court; A. O. T. Geiger, judge.</p> <p> In banc. </p>

<p>Original proceeding in quo warranto.</p> <p> In bane. </p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Trusts and Trustees — Constructive Service. In an action against a non-resident, in which, it is sought to trace a trust fund into specific property held by him with notice of the trust, service by publication only is sufficient to give the court jurisdiction.</p> <p>2. Amended Petition — Presumption of Law. Where an amended petition was filed, which was received and acted upon by the trial court, it will be presumed, in the absence of a showing to the contrary, that it was filed with the permission of the court.</p> <p>3. Trusts and Trustees — Guardian and Ward — Insolvent Bank —Purchaser Held Trustee. Where the money of a ward is placed in a bank without right, and mingled with the funds of the bank so that its assets are augmented and bettered in a tangible way, a trust is impressed upon the assets, and where the bank subsequently becomes insolvent and a receiver is appointed who sells a portion of the assets, and it appears that not only the bank and the receiver had knowledge of the trust, but also the purchaser himself, it will be held that such purchaser is himself a trustee of the fund and liable in equity to the ward for the same.</p> <p>4. - Sale by Receiver — Purchaser with Notice. The receiver took the assets of the insolvent bank subject to all equities which existed against such assets when the appointment was made, and, as the ward was the true owner of the trust fund in the assets, neither the bank nor the receiver acquired any right to the same, nor had the receiver power to transfer a title to the property into which the trust fund had gone to a purchaser who had notice of the trust.</p>

<p>Error from court of appeals, southern department; A. W. Dennison, B. F. Milton, and M. Schoonover, judges.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Exchange of Beal Estate —Fraudulent Bepresentations. When, in a contract for the exchange of real estate, it is expressly stipulated that it is made subject to an investigation of the property of one party by the other, and that its force and effect shall depend on the result of such investigation, the party ■ so agreeing to make investigation assumes the responsibility of making such full and complete examination of the property as he may desire to satisfy himself as to the truth or falsity of the rep- ■ reséntations made by the other party and the advisability of making the exchange; and if, after examination, he signifies his' satisfaction therewith by closing the trade and exchanging title papers, he cannot rescind the contract on the ground that he was induced to make it by false representations by the other party, unless some fraud be practiced upon him by the other party which prevents his making a full, fair and complete examination of the property. =</p> <p>2. Evidence— Certified Copy of Plat. A certified copy of a plat on file or of record in a public office in a foreign state is not admissible in evidence in the courts of this state. Such plat must be produced and identified by the custodian thereof, and a copy therefrom must be proved by the oath of such custodian to be a true and correct copy of the original plat on file or of record in his office, before it will be received in evidence.</p>

<p>SYLLABUS BY THE COUKT.</p> <p>'Trover and Conversion— Limitation of Action. An order made by a judge at chambers, on the motion of a mortgagee, discharging an attachment obtained by a creditor of a mortgagor, to reverse which a proceeding in error is brought that operates as a ■stay of the order, does not prevent the mortgagee from beginning an action against the creditor to recover damages for conversion of the attached property, nor do the proceeding in error and stay suspend the running of the statute of limitations as against the action for conversion.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Homesteads and Exemptions — Alienation—Joint Consent. The joint consent of husband and wife to the alienation of their homestead, required by the constitution, need not be in writing, but may be evidenced by acts in pais showing a concurrence between them in point of time and intent to the alienation.</p> <p>2. -Water Easement — Sufficient Evidence of Joint Consent to Alienation. An arbitration agreement, signed by a husband and wife on the one side and other persons on the other side, which describes the sub j ect of the arbitration as the damages accruing and about to accrue to the homestead of the former on account of the erection of a water dam and the excavation of an aqueduct thereon by virtue of a “grant” made by the husband and wife, which agreement is followed by an award of damages and its payment, the building of the dam and the digging of the aqueduct at much labor and expense, all with the knowledge and consent of the husband and wife, and the use of the water easement for many years without objection by them, together constitute sufficient and satisfactory evidence of joint consent by the husband and wife to the alienation of an irrevocable grant of easement on and over their homestead.</p>

<p>SYLLABUS BY THE COUBT.</p> <p>Railways — Injury to Ineant — Instructions Sustained. Where the jury are instructed that a railway company is guilty of negligence when it runs a train within the limits of a city of the first class faster than is permitted by ordinance, but that such violation of law does not of itself render the railway company liable to one who has sustained injuries unless it is shown by a preponderance of the evidence that such injuries “were the direct and proximate result of the rate of speed at which the train was traveling,” the instructions, construed together, are not erroneous.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Requirements of Circumstantial Evidence. So to establish, a theory by circumstantial evidence that it may be accepted as a fact proved, the known facts relied on as a basis for the theory must be of such nature and so related to one another that the only reasonable conclusion that 'may be drawn therefrom is the theory sought to be established.</p> <p>2. -Presumption of Fact Defined — Erroneous Instruction. The term, “ a presumption of fact,” has reference to a fact whose existence is established by that just land reasonable inference which common sense and experience naturally draw from another fact known to exist. It must have a fixed fact for its foundation. It cannot be based upon a presumption. Hence, an instruction in the following language: “You are further instructed that it is a presumption of fact that when a mechanical appliance fails to do the work that it is intended to do it is defective or out of repair and that when a mechanical appliance is once shown to be defective or out of repair, it is presumed to remain so, unless it is affirmatively shown that it was repaired,” is erroneous, because it bases a presumption of fact upon a presumption, and not upon an established fact.</p>

<p>Error from Wyandotte district court; E. L. Fischer, judge.</p>

<p>SYLLABUS BY THE COUBT.</p> <p>Injunction — Review. Where a decree of the district court awarding a mandatory injunction has been complied with and the writ obeyed, this court will not consider a proceeding in error brought to reverse such decree when it appears that the subject of the order is no longer in existence.</p>

<p>Error from Wyandotte district court: E. L. Fischer, judge.</p>

<p>Error from Jefferson district court; Marshall Gephart, judge.</p>

<p>Error from Atchison district court; W. T. Bland, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Cities ahd City Oettcers — License Tux — Ordinance Construed. A city ordinance imposed a license tax upon “various callings, trades, occupations, and professions.” In the list is found the item “ all other retailers.” Nowhere else in the ordinance is there any specific mention of retailers of any kind, to which .this item “all other retailers” could refer. Held, that by this item a license tax is not imposed upon one who retails harvesting machines, because, as to him, it is too vague and uncertain to be administered. Held, f urther, that under the above circumstances the item “all other retailers” does not indicate a calling, trade, occupation, or profession, and hence they are not within the-scope of the ordinance.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. City ahd City Oeeicers— Contract tvith Light Company. An ordinance of a city, duly passed and published, conferring certain privileges and imposing certain duties upon an electric light company which under the charter of the city it had power to confer, the terms of which ordinance were accepted by the company as therein provided, constitutes a contract between the city and such company, binding upon both.</p> <p>2. -Proof of Acceptance by Light Company. To show its acceptance of the terms of such ordinance, the company may introduce a written receipt, signed by the city clerk, that a written acceptance of the terms thereof had been left with him, the ordinance itself providing that the company should file with the clerk of the city a written acceptance of the terms thereof within a given time.</p> <p>3. -Designation, of Number and Location of Lights not a Contract. Such ordinance provided that the company should furnish at a price therein named as many lights as the city might order, to be located where it should order, within certain limits. Ilelcl, that such order need not be expressed in the form of an ordinance, although the charter of the city provides that it can only contract by ordinance, the mere designation of number and location of lamps not being a contract.</p> <p>4. -Estoppel Applies to Municipalities. An infirmity in an executory contract which might be taken advantage of by its repudiation before execution will not avail to excuse from payment for benefits received thereunder after execution. This rule applies to a municipality as well as to an individual.</p> <p>5. - Contract — Oral Evidence. It is competent to show the acts of the parties to a. contract ambiguous in its terms, as tending to explain their understanding thereof.</p>

<p>Error from Kearny district court; A. J. Abbott, judge.</p>

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

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

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

<p>Error from Rice district court; Ansel R. Cla.kk, judge.</p> <p> In banc. </p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquors — Non-resident Salesman — Interstate Oommeree. A state law which places substantial restrictions upon the taking or soliciting of orders by a non-resident salesman for intoxicating liquors, to be purchased in and imported from another state, where such orders are subject to approval or rejection at the election of the non-resident merchant, is a burden upon interstate commerce, and, so far as the act applies to such cases, it is repugnant to the provisions of the federal constitution giving congress the power to regulate interstate commerce.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Murder — Evidence of Character of Deceased. Under a plea of self-defense to a charge of murder, when there is evidence tending to prove the truth of the defense, it is admissible to show the general character of the deceased for vindictiveness and hostility toward the class of persons of which the defendant is a member, in connection with the defendant’s knowledge of such character.</p>

<p>Appeal from Russell district court; Lee Monroe, judge.</p> <p> In bane. </p>

<p>Appeal from Butler district court; G-. P. Aikman, judge.</p> <p> In banc. </p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Evidence — Certificate of Probate Judge — Death of Railway Employee. Where a widow, as next of kin of a deceased employee of a railway company, sues such company for negligently causing the death of her late husband, and alleges that no administrator upon his estate has been appointed, which averment is denied by the answer of the defendant, a certificate of the probate judge of the county wherein deceased in his lifetime was a resident is not admissible to prove that “no administrator has ever been appointed by said court” or that “there is no record in said ' court of any administration for or in behalf of deceased.”</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Husband and Wipe — Death of Husband — Partition. Where a husband, acting under a power of attorney, collects money due his wife, and with such money pays the purchase-price of a tract of land, taking the legal title in his own name, but thereafter disclaims his ownership of the land and refers to it as the property of his wife, after his death partition of the land will not be awarded at the suit of the children of the husband and wife claiming an interest in the property as his heirs-at-law as against the widow claiming to own the property.</p> <p>2. Fraud — Limitation of Action — Constructive Notice Sufficient. The phrase, “until discovery of the fraud,” in subdivision 3 of section 18 of the code (Gen. Stat. 1901, § 4446), which provides the limitation of two years.m case of “ action for relief on the ground of fraud,” and which also provides that “ the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud,” does not necessarily mean until the party complaining had actual notice of the fraud alleged to have been committed, for constructive notice of the fraud is sufficient to set the statute in motion even though there may be no actual notice. Where the means of discovery lie in public records required by law to be kept, which involve the very transaction in hand, and the interests of the parties to the litigation, the public records themselves are sufficient constructive notice of the fraud to set the statute in motion.</p> <p>3. -Accounting to Heirs by Administrator Guardian— Limitation of Action. When an action for relief on the ground of fraud is brought by children against their mother, who acted as administratrix of their father’s estate, and also as their guardian, but is not brought until eighteen years after the estate was settled, and eight years after the guardian’s account was closed and the youngest child had arrived at- majority, a finding from the evidence that the fraud was discovered by an actual examination of the accounts of their mother with the probate court, made within two years of the date of the commencement of the action, is not a sufficient finding that the fraud was not discovered prior to that time, to remove the case from the operation of the statute of limitations.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquors — Sale in Kentucky — Unmarked Packages. A firm of liquor dealers in Kentucky, through their agent in this state, sold to the defendant several cases of whisky in quart and pint bottles. The agent knew when he took the order that the buyer intended to resell the liquor in violation of the laws of this state. The whisky was delivered to a carrier in Kentucky, packed in plain boxes, consigned to the buyer, with nothing to indicate the contents of the packages. Held, that the sellers did not so conceal the nature of the goods as to prevent a recovery for the value of the whisky in the courts of this state, within the rule of Feineman v. Saehs, 33 Kan. 621, 7 Pac. 222,52 Am. Rep. 517.</p>

<p>Error from Allen district court; L. Stillwell, judge.</p> <p>statement.</p> <p>This was an action brought by defendant in error as administrator of the estate of Noah Pettit, deceased, against S. M. Knox for an accounting. Knox and Pettit were partners in the farming and stock-raising business. Knox furnished 480 acres of land, and Pettit contracted with him to cultivate it, furnishing one-half of the stock and farming implements, for the term of five years, and the parties were to share equally the profits and losses of the business. The agreement was made in writing November 10, 1890. In February, 1896, the contract was extended for a further term of five years. The petition alleges :</p> <p>“Noah Pettit died at his residence in Allen county, Kansas, on or about the 8th day of February, 1898; that up to that time there had been raised, fed, fattened and sold crops, cattle and hogs to the amount of about $20,000, as near as can be ascertained, in said business ; that of said $20,000 so sold and disposed of the defendants received the sum of $14,000 and said Noah Pettit $6000, as near as can be ascertained ; that there is now on hands of the said company’s property, stock and farming implements and feed to the value of about $7500, as near as can be ascertained ; that during the lifetime of said Noah Pettit he kept and performed all the covenants and agreements in relation to said business as by the said contract he had agreed ; and that in addition thereto did work for the defendants in a large amount at breaking prairie, building fences, and other work done and performed by him in the improvement of farm at the request and for the defendants to the value of $500 ; that during the lifetime of said Noah Pettit he was unable to make any settlement with the defendants ; that this plaintiff is unable to make any settlement with defendants.”</p> <p>The second count of the answer of the defendant below avers that on the 21st day of February, 1896, Knox and Pettit made settlement of their partnership business, when it was mutually ascertained and determined that the former had advanced for and on account of said partnership business the sum of $8588.76 over and above the amount of money and property advanced by Pettit, and under said agreement the latter was indebted to Knox in the sum of $4294.38, together with $343.55 interest, on account of money and property advanced for use in the partnership business; that it was mutually agreed that the partnership business should continue for the further period of five years from February 25, 1896, under the terms and stipulations of the original agreement. The answer further avers :</p> <p>“That afterward, on the 8th day of February, 1897, the said S. M. Knox and the said Noah Pettit made a settlement of their mutual accounts growing out of said partnership business, and it was mutually determined and agreed between the said parties thereto that the said Noah Pettit was indebted to the said S. M. Knox on account of property and money advanced for said, partnership business the sum of $4218.13, and afterwards, on the 21st day of December, 1897, and supplemented by a further settlement, January 21, 1898, the said S. M. Knox and the said Noah Pettit made settlement of their partnership transactions and dealings, when it was ascertained and mutually agreed that the said Noah Pettit was indebted to the said S. M. Knox, on account of said partnership, $4250.96, which amount is and was in excess of the interest of the said Noah Pettit or of the said plaintiff in said partnership property.”</p> <p>There is attached to the answer an agreement of settlement in writing, dated February 21, 1896, signed by both parties, in which the indebtedness from Pet-tit to.Knox is stated as alleged above. In reply to this answer the plaintiff below interposed first a general denial, and for a second defense alleged as follows :</p> <p>“For the further reply to the second paragraph of defendant’s answer, plaintiff denies that there was ever a true, just or equitable accounting or settlement made between the plaintiff herein and the defendant, or between the deceased Noah Pettit and this defendant, but alleges that the purported settlement, a copy of which is set out in defendant’s answer, is not a true, just or correct statement of the accounts between the parties thereto ; that said Noah Pettit was induced to and did sign said purported settlement through a mistake and misapprehension of the facts as to the true condition of the accounts ; that said Noah Pettit was deceived and misled as to the truth and correctness of said accounts; that the entries made in the book of accounts from which said purported settlement was taken, were made under and by direction of the defendant Knox; that the deceased Noah Pettit relied on the statement of defendant Knox that the same was true and correct, when in fact said book of original entries fails to show the true condition of said account, and were not true or correct.” *</p> <p>The cause was sent to a referee for trial. The defendant below, when the first witness was sworn in the cause, objected to the introduction of any evidence under the petition for the reason that the same did not state a cause of action, and for the further reason that the answer filed by Knox set up settlements between the deceased and the surviving partner which had not been sufficiently answered; that the reply set forth no facts sufficient to entitle the plaintiffs to introduce evidence for the purpose of annulling or overcoming said settlements. This objection was overruled and the cause proceeded to trial. The report of the referee was confirmed by the district court and it was adjudged that the several settlements made be1 tween the parties be set aside and annulled, and that the defendant below, Knox, recover of Pearson, administrator of the estate of Noah Pettit, the sum of 13842.67, as found and reported by the referee.</p> <p>The defendant below, Knox, has prosecuted error to this court to reverse the judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Pleading and Proof. Where there is no evidence in the record fairly proving a material and essential fact alleged in the petition, the judgment of the court below will be reversed.</p>

<p>SYLLABUS BY THE COUBT.</p> <p>Street-bailway — Accident at Crossing— Contributory Negligence — Question for Jury. Where the driver of a heavy wagon attempts to cross the tracks of a street-car company at night, and before doing so looks both ways upon the track and is unable to discover any car approaching, but does see the headlight of one which he believes to be moving toward him at a distance of 300 or 400 yards ; and where the evidence justifies the jury in determining that such car was traveling at an unusual, reckless and dangerous rate of speed, which fact such driver did not and could not know before starting to drive across such track; and when, by reason of such high rate of speed and the failure of those in charge of the car to make any effort to stop it, such wagon is struck and the driver is injured, the question as to whether the latter was so far guilty of contributory negligence that he may not recover is one of fact for the jury, under proper instructions of the court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injury — Light and Telephone Wires — Proximate Cause. The proximate cause of an injury is that which naturally leads to, and which might have been expected to be directly instrumental in, producing the result. Held, that permission by the plaintiff in error to R. to attach his private telephone wire to its electric-light poles was not the proximate cause of the injury sustained by defendant in error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal In jury — Falling Zinc Spelter — Proof of Negligence Where a laborer is injured by the falling of a stack of zinc spelter he is not entitled to recover damages in the absence of evidence that the stack was carelessly or negligently built, or that his employer knew that it was dangerous, or where the danger was open and obvious and observed by his colaborers, and could have been observed by him, and the injury averted by the exercise of ordinary care.</p>

<p>Appeal from Pottawatomie district court; William Thomson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Office and Officers — Terms of Appointed Judicial Officers. The phrase “until the next regular election,” as used in section 11 of article 3 of the constitution, providing for appointments to fill vacancies in judicial offices, means until the next regular election held at the time fixed by law for the filling of the particular class of judicial offices to which the appointment was made.</p> <p>2. - Term of Appointed Probate Judge. The time of the regular election to fill the office of probate judge has always been, as fixed by statute, in the even-numbered years; held, therefore, that upon the death of an incumbent of such office, occurring more than thirty days before the regular biennial election, and an appointment to fill the vacancy, the appointee holds until such election.</p>

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

<p>Error from Brown district court; Wm. I. Stuart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1 Jurisdiction — Supreme Court — Forcible Detainer. If the ' rental value of land for a term in controversy in a forcible detainer suit exceeds $100, that amount may be regarded as the value in controversy, and error will lie to the supreme court from the judgment of the district court.</p> <p>2. -Amount Shown, Aliunde the Record. It is competent to show, aliunde the record, the amount or value in controversy, and from such evidence the court may determine whether there is jurisdiction to review the rulings of the district court.</p> <p>3. -1 Justice's Court — Bill of Exceptions. In preparing a bill of exceptions from the rulings of a justice of the peace, it is competent for a party to set out the pleadings, motions, evidence, decisions, and exceptions, and all of the proceedings, and a certified copy of such a bill of exceptions, which has been duly settled and signed, constitutes a reviewable record.</p> <p>4. Landlord and Tenant — Contract of Renewal Construed. A contract renewing a lease of land, which specifically provides that the tenant is to hold the same under the old lease and subject to its conditions and with the same rights and privileges prescribed therein, is deemed to be a continuation of the original lease, and the rights and liabilities of the parties are to be determined in accordance with its terms.</p>

<p>Error from Geary district court; O. L. Moore, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Review of Order Granting New Trial. Where a motion for a new trial based upon several grounds is allowed, and it does not appear upon what ground the new trial was awarded, and a single erroneous ruling is found among those assigned in the motion, the supreme court, in order ¡ to sustain the ruling, will presume that the motion was allowed upon that ground.</p> <p>2. -Errors Waived. Errors occurring during the trial, not brought to the attention of the trial court by a motion for a new trial, are deemed to be waived, and cannot be used in the supreme court as a ground for reversal.</p> <p>3. Insurance — Policy Covering Intoxicating Liquors. A contract of insurance covering a stock of drugs, including some intoxicating liquors, which did not relate to the conduct of the business or the consequences of the use of the property, and was not entered into with a purpose to encourage acts in violation of law, is not rendered invalid by the fact that some illegal sales of intoxicating liquors were subsequently made.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Conveyance — Constructive Delivery of Deed. It is not necessary that there should be a manual delivery of a deed to make it effectual. A constructive delivery or any words or acts showing an intention on the part of the grantor that the deed shall be considered as completely executed and the title transferred are sufficient.</p> <p>2. -Recording of Deed Held a Delivery. The recording of the deed in question, as well as other acts of the parties showing an intention of the parties to treat the instrument as a conveyance and as a passing of the title, are held to be sufficient proof of the delivery by the grantor and acceptance by the grantee.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Procedure — Imprisonment for Costs. Only in cases where a fine is imposed has a court the power to commit a defendant to jail for the non-payment of costs.</p>

<p>Appeal from Osage district court; William Thomson, judge,</p>

<p>SYLLABUS BY THE COURT.</p> <p>Physicians and Surgeons — Act of 1901 Upheld. Chapter 254 of the Laws of 1901 (Gen. Stat. 1901, §§6669-6677), “An act to create a state board of medical registration and examination, and to -sgulate the practice of medicine, surgery and osteopathy in the state of Kansas, prescribing penalties for the violation thereof, and repealing chapter 68 of the Session Laws of 1870,” is a constitutional enactment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Time for Filing Transcript on Appeal. Section 2 of chapter 127, Laws of 1889 (Gen. Stat. 1901, §5725), relates solely to the matter of obtaining a stay of execution of judgments in criminal cases, and does not serve to extend the time within which a transcript on appeal to this court must be filed; hence, where such transcript was not filed within thirty days after the appeal had been taken, as provided in section 284 of the criminal code (Gen. Stat. 1901, §5722), it was not in time, and the appeal must be dismissed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Procedure — Assault to Commit Rape — Information. Under the peculiar statutory provisions oí this state defining the crime of rape, when the prosecutor intends to charge the offense of assault with intent to commit rape on a female under the age of consent, eighteen years, the specific act or acts done toward the commission of the offense must be alleged, that the court may be informed, and therefrom declare, whether the law has been violated, and that the defendant may be advised of the nature and character of the acts which are alleged to constitute the offense charged against him.</p>

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

<p>Error from Kearny district court;'Wm. Easton Hutchison, judge.</p> <p> In banc. </p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgment — Jurisdiction Obtained by Fraud — Case Distinguished. The non-resident payee and owner of a promissory note, to which its maker had a good defense, entered into a collusive agreement to confer apparent jurisdiction to enter judgment on the note upon a court in this state, located at a great distance from the residence of the maker, for the purpose of depriving the latter of the opportunity to defend. In pursuance of such agreement the payee made a colorable indorsement of the note, procured a non-resident of the state to make a colorable guaranty thereon, and caused suit to be brought thereon in said court in the name of the indorsee against the maker and such guarantor. Upon the request of the payee, a domestic summons issued to the guarantor, which the payee carried into a foreign state and there procured the guarantor to accept service thereon in such manner that the court would presume, from an inspection, that it was done in the county where suit was brought. Thereafter the payee procured a summons to be served on the maker in the county of his residence, and upon such service judgment was rendered by default against the maker, who, at the time, was ignorant of the fraud practiced upon him, and the action as to the guarantor was dismissed. Held, that such judgment is collusive, fraudulent, and void for want of jurisdiction, and the enforcement of it by execution in the hands of the payee of the note will be enjoined. The case of Hendrix v. Fuller, 7 Kan. 331, distinguished.</p>

Error from Wyandotte district court; E. L. Fischer, judge. In banc. STATEMENT.

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

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

<p>Original proceeding in quo warranto.</p> <p>In banc.</p>

<p>Contract — Pasturing Cattle — “Act of God." Where a party takes cattle for pasture, and by a written contract agrees to be responsible for the loss of any that may get out of the pasture, he is not responsible for cattle which, being pelted by hail and rain and driven by the wind, in an attempt to find shelter break through an otherwise sufficient fence, follow the creek into the timber, and by the severity of the storm are swept into the'current and drowned.</p>

<p>Note and Mortgage — Insurance Clause — Limitation of Action. Where the provision for insurance in a mortgage is not filled out by inserting the amount, there is no agreement to insure in any amount, and a failure so to do does not cause the note secured by the mortgage, to mature immediately upon its delivery, so as to start the statute of limitations running thereon.</p>

<p>Error from Harper district court; P. B. Gillett, judge.</p>

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