Volume 7 — Kansas Reports

Error from, Leavenworth District Court. Ejectment for two certain lots in the city of Leavenworth, brought by Edmonia T. Boyd, as plaintiff, against John Burton and John Shoemaker. The petition alleged that the plaintiff was the owner of the lots, and that the defendants kept her out of possession of the same. The defendants answered separately. Burton filed a general denial only.

Error from Jefferson District Court. Simon Gerhart brought his action, against Patrick Fitzpatrick to recover damages for injuries to the lands, buildings and fences of the plaintiff.

Petition for a Writ of Habeas Corpus. Charles Phillips filed his petition in this court for a writ of habeas corpus to be discharged from an alleged illegal imprisonment. The facts as set forth in the petition and record are as follows: An information was filed in the district court of Dickinson county, charging •the petitioner with grand larceny. The petitioner plead not guilty. A jury was impanneled and sworn.

Mrror from Leavenworth District Court. Proceedings in the nature of quo warranto. Held: and has no application to elections held under the authority of any State for State, county, or city officers. It follows that said petition does not state facts sufficient to constitute a cause of action, and that the court decided correctly without reference to other questions. 3.

The defendant was charged by information with having committed the crimes of assault and rape.

Error from Linn District Court. David Linton was Probate Judge of Linu county; bis fees, allowed and collected under §4, cb. 39, Gen. Stat. 1868, p. 477, were less than $450 per year. He applied to tbe board of county commissioners, to make an allowance, in addition to fees, under tbe authority given by §85, cb. 25, Gen. Stat., p. 273; tbe commissioners declined to make any allowance.

Error from, Leavenworth District Court. This ease involves only the validity ■ and proper construction of Bule 15 of the Supreme Court, adopted at the January Term, 1865, to he found in 2 Kas., page xii. Said rule is as follows: “Buie 15.

Original Proceedings in Mandamus. On the 21st of May, 1870, an election was held in Ottawa county for the relocation of the county-seat. The places voted for were Lindsey and Minneapolis; and on a canvass of the votes by tbe board of county commissioners, such board declared that Minneapolis bad received a majority of all, the votes cast, and made an order requiring tbe county officers to move tbeir offices from Lindsey to Minneapolis.

Original Proceedings in Mandamus. An election was beld on the 21st of May, 1870, for the removal and relocation of the county-seat of Ottawa county. The vote was canvassed and result declared May 28th. After said canvass, and on said 28th of Mayr Thomas Dalrymple, the relator, filed in the office of the-clerk of the district of Ottawa county, a notice, as provided by § 2, ch. 27, laws of 1869, that he should as an elector of said county, contest the said election.

Brandon was tried upon an information charging him, in the same count, with the two offenses of burglary and grand larceny. The jury returned a verdict of guilty of grand larceny. On his motion the judgment was arrested, and he was discharged. The State appeals, pursuant to the authority contained in the following section of the code of criminal procedure, (Q-en. Stat., 865:) “ Sec. 283.

jError from Johnson District Court. Ejectment, brought in the district court of Johnson county, to recover the possession of lots six and nine, in block fifty-one in the town of Olathe. The plaintiff in error, Samuel Carithers, who was plaintiff below, claimed title by virtue of a deed from his father, Noble Carithers, of date Sept. 29th, 1862.

Error from Jefferson District Court. Ejectment for 160 acres of land in Jefferson county. The action was commenced in the name of “ Levi McLain, Jr., by Thomas McLain, his guardian,” as plaintiff.

Error from, Saline District Court. Garvin brought suit before a justice of the peace to recover for the use and occupation of a dwelling-house. Defendant, Jennerson, answered, making a general denial, and procured several continuances, covering in the aggregate some seventy-nine days from the return of the summons. He then consented to a further continuance for twenty-seven days, at which time he procured the action to be dismissed for want of jurisdiction.

Error from Douglas District Court. Cole filed a petition to vacate and set aside an order made by the district court dismissing an action for want of prosecution. Walker, defendant, demurred. The only question here is, whether said petition is sufficient. The facts set forth in said petition are stated in the opinion of the court. The demurrer was sustained by the district court, and plaintiff brings the case here on error. 1.

The defendant Reddick was charged by information with the crime of murder in' the first degree. There was only one count in the information, and in that he was charged with having “ u>_ .awfully, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought,” killed and murdered one John T. Lykens. He was tried before a jury at the December Term, 1870, of the Criminal Court of Leavenworth county.

Error from Leavenworth District Court. Corum brought his action against Gillett and in his petition alleged that the defendant was “ indebted to him in the sum of $100 for the work and labor, care and diligence, by the said Corum performed and bestowed as the agent of and for Gillett, and on his retainer and for a certain commission and reward in and about the selling and -disposing of a certain quarter section of land.” The case was in this court once before; (5 Kas.,608.)…

Error from Shawnee District Court. Hope brought his action to recover $72 and interest for certain wines sold by him to Dolson. The case was tried upon an agreed statement of facts set forth in full in the opinion. The defendant claimed that, as Hope was not a licensed liquor-seller, the contract of sale was void under the statute, and no recovery could be had. The district court gave judgment for the plaintiff, and the defendant brings the case here on error. 1.

Original Proceedings in Quo Warranto. On the 20th of July, 1870, Norton filed in this court his petition against the defendant, setting forth in substance that the plaintiff was, at the general election in November,. 1869, duly elected to the office of Treasurer of Coffey county, by the qualified electors of said county; and that the defendant, Graham, had gained possession of the said office, by usurping the same, and without any legal right or title thereto, and still…

<p>Error — must be shoion, not presumed. In the absence of any showing to the contrary, it will be presumed that the instructions of the court to the jury were proper. Where no error is shown to have been committed by the court below, the judgment of that court must be affirmed.</p>

Error from Jefferson District Court. Mitchell brought his action to foreclose a certain mortgage executed by Laomi McArthur to and in favor of one Demi H. Lecompt, and assigned to plaintiff. The case was tried at the May Term, 1870, and judgment given in favor of the. plaintiff. No bill of exceptions was settled, but the defendant caused the instructions, given by the court to the jury, with the exceptions taken thereto, to be spread upon the journal.

JError from Saline District Court. The Kansas Pacific Railway Company commenced an action to enjoin S. Amrine, as Treasurer, and James W. Russell, as Sheriff of Saline county from proceeding to collect certain taxes levied upon the property of the plaintiff in said county.

Frror from Shawnee District Court. Wolee sued Cleveland to recover $200 previously deposited by him with said Cleveland as stakeholder as and for a wager or bet made by Wolff on a horse-race. The wager was made with one Joseph Kellam, who bet and deposited a like sum with the defendant.

Error from Wyandotte District Court. The question here is one of jurisdiction. An action was commenced in the territorial court sitting in Wyanr dotte county, in 1860, and was pending and undetermined when the State of Kansas was admitted into the Union, January 29, 1861. In 1869 the plaintiff caused a. • transcript of the record to be filed in the Wyandotte district court, amended his petition, and sued out process of summons.

Error from, Miami District Court. On the 26th of April, 1870, Hobson filed his petition and precipe in the office of the clerk of the district court, for the commencement of an action against Hutton to recover possession of a certain tract of land. A summons was issued and made returnable on the 5th day of May.

Error from Marshall District Court. In 1860 the plaintiff in error was the owner of real estate in Marshall county, Kansas. In that year a judgment was rendered against him in the district court of that county, in favor of Humphreys, Terry & Co., which in May, 1868, was assigned to defendants T. W. Water-son and Nannie Edwards.

Error from Shawnee District Court. Ryan and another sued The Topeka Bridge Company to recover damages for injuries to a lot of cattle alleged to have been occasioned by reason of the neglect of the defendants to keep their bridge in proper and safe condition and repair. The plaintiffs had judgment, and defendants moved for a new trial, which was granted.

Frror from Bourbon District Court. Petition for an injunction against Morris, as county treasurer, and Wheaton, as sheriff. Prior to the first day of March, 1870, the plaintiff, the Missouri River, Fort Scott $ Gulf Railroad Company, had completed its track and roadway from Kansas City, Missouri, through the counties of Wyandotte, Johnson, Miami, Linn, and Bourbon, and to Girard, in the county of Crawford, in the State of Kansas, and was operating the same.

Mrror from Bourbon District Court. The Missouri Biver, Fort Scott ¿f Gulf Bailroad Company as plaintiffs commenced an action in the district court of Bourbon county to restrain the defendant, G. S. Wheaton, who is sheriff of said county, from collecting certain taxes claimed to be illegal.

Error from Riley District Court. Crowther sued Elliott, and alleged in his petition that on the 27th of June, 1868, the parties entered into a written contract, in and by which plaintiff agreed to sell to defendant all plaintiff’s interest in the “ Kansas Radical,r newspaper establishment, for $100, payment to be made and possession given on the 8th of August following y. also, a stock of paper and ink, for $64.71, to be paid' at same time; that until said August 8th,…

Error from Labette District Court. Pratt brought suit upon a promissory note, of which ithe following is a copy: •“ $250. “ Chetopa, Kansas, Oct. 14,1869. “ Sixty days after date I promise to pay to the order of Mathew G. Pratt two hundred and fifty dollars, for value received, negotiable and payable without defalcation or •discount, and with interest at the rate of twelve per cent, per annum from maturity.

Error from Crawford District Court. Taylor brought replevin against Culbert before a justice of the peace to recover two head of swine. The plaintiff had judgment. Culbert appealed to the district court, and there, on leave, filed an answer to the plaintiff’s petition, or bill of particulars.

Error from Shawnee District Court. Huntingdon sued Ritchie before a justice of the peace to recover the value of certain work done and performed under a special contract to be paid for in specific articles. The case was appealed to the district court, where the plaintiff recovered a judgment for the amount of his claim.

Error from, Johnson District Court. Proceeding to vacate and set aside a judgment, and grant a new trial. At the October Term, 1868, of the district court, Cromwell Laithe recovered a judgment against A. McDonald, B. P. McDonald, John E. Dillon, and John McDonald, partners as A. McDonald Co., for $5,686. McDonald & Oo. did not appear at said trial in person nor by attorney, although they had filed an answer denying all the matters alleged in the petition.

Error from Leavenworth District Court. Carson sued Kerr to recover $3,760.80, of which the sum of $2,316 were alleged to be due plaintiff on a certain check drawn by one T. J. Weed on the banking house of Scott, Kerr & Co., of which firm defendant was a member; and the sum of $1,444.80 was alleged to be for money had and received by defendant for plaintiff’s use. The case was tried by the court, without a jury, and the findings and judgment were in favor of the defendant.

JSrror from, Leavenworth District Court. The action below was commenced by Walsmith, and others, as plaintiffs, upon a draft or bill of exchange drawn by defendant Weed on defendants Scott, Kerr f Co., Sept. 3, 3864, for $3,936, payable to S. Saunders. Saunders assigned said draft to the plaintiffs, each of whom claimed a separate and distinct interest therein.

Error from Leavenworth District Court. Nash sued the Pacific Railroad Company before a justice of the peace to recover $130, the alleged value of a horse killed by the engine of the defendant. After trial the case was appealed to the district court, where there were two additional trials, each resulting in a verdict for the plaintiff.

Error from Leavenworth District Court. Silas Armstrong was sheriff of Wyandotte county for •the term ending January 10th, 1870, on which day his successor qualified, and he ceased to be sheriff. On the 4th of December, 1869, judgment was rendered in the district court of Leavenworth county in favor of Grant ‡ Prest, against one John Hammill, for $765.14 and $13.00 costs.

<p>1. Statute op Limitations — Death of Creditor. The death of a creditor does not suspend the running of the statute of limitations against his claim when the statute has once begun to run.</p> <p>2. ---Acknowledgment, to be in writing, and signed by party. The acknowledgment of a debt required to take a claim out of the statute of limitations must be in writing, and signed by the party to be charged thereby.</p> <p>3.--Writing not delivered, no acknowledgment. A new note and mortgage prepared in pursuance of a previous arrangement, the note bearing a less rate of interest, and the mortgage on a different piece of land, and not received or accepted, cannot be used as evidence of ■ the original debt.</p>

Error from Bourbon District Court. Replevin for 155 shocks of oats, commenced by Caldwell as plaintiff, before a justice of the peace. The action was taken by appeal to the district court, where it was tried at the December Term, 1870. In order to establish his title to the oats, the plaintiff offered evidence of title to the lands on which the oats were grown, the facts respecting which are fully stated in the opinion. The evidence was rejected by the district court.

Error from Davis District Court. Butts sued the Kansas Pacific Railway Company to recover damages alleged to have been sustained by the… Held: in accord with the authorities, and with principle, that in regard to negligence, if the proof is all one way, or if, as in this cáse, there is no controversy about the facts, then it becomes a question of law; and that it is also a question of law what degree of care and diligence on the one side, and of negligence on the other,…

JError from Shawnee District Court. Keplevin for a buggy, harness and buffalo robe, brought by Cordon as plaintiff, against Shields as defendant. Shields had seized the property, as constable, upon an execution issued upon a judgment in favor of the Kansas Yalley National Bank and against said Gordon. Gordon claimed the property as exempt from seizure and sale on execution.

Original Proceedings in Quo Warranto. Matheny was elected county clerk of Wabaunsee county at the general election in 1869, for the term commencing on the second Monday of January, 1870, at which time he entered upon his duties as such officer. He executed an official bond, and took the usual oath of office, in proper time, but did not file the same with the county treasurer as required by §173, ch. 25, Gen. Stat., p. 293.

Error from Douglas District Court. Hendrix, McKnabb & Co., as plaintiffs, brought suit in the district court of Douglas county against Fuller and Thompson upon a note, and indorsement thereon,, stated in the petition as follows : “ $2,150. “ New Orleans, 10th January, 1869. “ Thirty days after date I promise to pay to the order of Waddy Thompson, twenty-one hundred and fifty dollars, value received.

Error from Doniphan District Court. Williams sued Barnett and recovered a judgment for $1,500 for the alleged unlawful conversion of 4,000 bushels of corn, which plaintiff claimed to have purchased of Bailey, Weightman & Butts, the contract of purchase being made with Butts. Defendant answered, denying the conversion, and alleging that the corn was the property of Harris, Hutchinson & Co., for whom it had been purchased, and to whom he had delivered it.

Mror from Douglas District Court. On the 17th of August-, 1864, the parties to this suit entered into a written contract, whereby Miller… Held: and correctly, we think, that such an answer or reply is frivolous, and should be stricken from the files: 1 Yan Sandt. PL, pp. 425, 430, 599. Woods v. Morrell, 1 Johns. Ch. R., 107 5 How. Pr. R., 14; 14 Barb., 533. 3. It is claimed by plaintiff' that there was an - arbitration, and that the court erred in excluding their award..

Error from Wyandotte District Oourt. This action was commenced by Mary A. E. Eagan, George T. Eagan, and Mary G. Eagan, as plaintiffs, against* David E. James and Peter W. Deitsch, as defendants, to quiet their title to a certain tract of land in Wyandotte county. The plaintiffs claimed the land as the heirs at law of Coleman Ragan, deceased.

Error from Labette District Court. Laughlin sued Johnson to recover the amount of a certificate of deposit issued by Johnson, as a banker, October 9th, 1869. The action was commenced May 23, 1870; the answer-day was June 30th, and the case was tried July 13th, 1870. There are five assignments of error, arising as follows: 1.

JError from Labette District Court. Ingersoll, a judgment-creditor, obtained an order of attachment against W. M. Johnson, a judgment-debtor, and caused Nelson Case to be summoned as garnishee. Written interrogatories were filed as required by § 503 of the civil code.

Error from Dyon District Court. Action to recover damages for the breach of a contract of marriage.

Error from Douglas District Court. On the 10th of April, 1867, Edwin W. Hand paid, his fare and took passage in the cars of the Union Pacific Roilway Company, at Junction… Held: the judge being absent. In People v. Bradwell, 4 Co wen, 445, it was held that where a court of oyer and terminer was to be held on Monday, but did not convene until Wednesday, all proceedings had on and after Wednesday were coram non judiee. The court held there is no implied power of adjournment.

Drror from Shawnee District Court. The county attorney of Shawnee county brought suit upon a forfeited recognizance to recover the penalty therein mentioned. Held: parol testimony not allowed to prove what was intended: 4 Cranch, 224. The court must construe the contract: 2 Pars, on Cont., 4, and note. And the meaning must be ascertained from the terms or words of the recognizance, and without reference to external circumstances, or any inference whatever.

Error from Leavenworth District Court. On the 28th of January, 1869, Duffy loaned Tholen ,$1,000 in money, upon a contract between them that Tholen should pay interest thereon for one year in advance at the rr+o of twelve per cent.

Error from Coffey District Court. Hats and Fitzpatrick sued. Parker. Their petition set forth two causes of action — the first, for labor and material, furnished at defendant’s request, on which there was .claimed to be due $1,275 ; the second, “ on an account,” an which plaintiffs claimed $185: total claim, $1,460. 'The answer was a general denial.

Error from Doniphan District Court. Ejectment for a tract of land in Doniphan county, claimed by Morse, who proved title in himself by patent and deed. Hargis claimed title as purchaser under a sheriff’s deed executed on a sale of the lands under a judgment and execution against Morse. In support of her defense, Hargis made proof of the loss or destruction of a part of the record upon which she relied, and then offered the other portion in evidence.

Error from Atchison District Court. Gillespie, Byram & Co., partners, commenced an action against .Julius Lovell and Abram Boehm to recover $812 due upon an account “for labor performed and materials furnished by plaintiffs to defendants,” and by defendants used in the erection of a certain building, etc. The petition set forth all necessary facts respecting contract, ownership and description of land, filing statement, etc., and demanded judgment for the said sum of $812,…

Error from Bourbon District Court. Action for false imprisonment, brought by Prell against' John McDonald and Benjamin Fies. The petition was in the ordinary form, alleging an illegal arrest, and a false imprisonment, in May, 1867.

Error from Bourbon District Court. Action brought by Amanda A. Bodenhamer, Henry H. Hart, Mary J. Hart, John F. Hart, and Elizabeth Hart, against M. B. Lyons and John Clifton, to compel the performance of a trust. ' The petition alleged that the plaintiffs were the children and heirs-at-law of William S. Hart deceased; that the said William, at the time of his decease, in November, 1861, was the equitable owner and was in possession of a certain quarter section of land in…

Error from Leavenworth District Court. Chapter 12 of the Laws of 1865, entitled “An act to “ authorize counties and cities to issue .'bonds to railroad “ companies, was approved February 10th, and took effect February 14,1865.

Original Proceedings in Mandamus. The principal question in this case was the same as ■that decided in the case of Comm’rs of Leavenworth… Held: and orders of the board of commissioners of Nemaha county made, in 1866, did not, either themselves, or with any other matter alleged, (other than the pretended subscription relied on,) constitute a contract, or render the county liable in any manner to any railroad company, or make it the duty of said county to subscribe to the…

Error from Morris District Court. Injunction, brought by George Morris, and 109 other citizens and tax-payers of Morris county, against The Board of County Commissioners, and Jonathan Hammond, as county clerk, and William F. Shamlejfer, as county treasurer, of Morris county, to restrain and enjoin the collection of a tax of ten mills on the dollar, fo.r “ railroad purposes,” levied upon the taxable real and personal property of plaintiffs and other tax-payers of said county…

Error from Saline District Court. Chapter 115 of the Laws of 1870, was approved February 25th, and was published March 3d, 1870. Its title designates it as an act to provide a “ herd law ” for six counties, Saline, Ottawa, Washington, Cloud, Cherokee, and McPherson.

Error from Broxon District Court. Replevin, commenced by Kimberlin, in March, 1867, against David Auld and George W. Taylor, to recover possession of twenty yoke of oxen, twenty ox-yokes, and thirteen iron chains, which Kimberlin claimed as owner. The property was of the value of $1,472.