Volume 70 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors — Information—Unnecessary Allegations. An information charging a defendant with selling intoxicating liquors without first obtaining from the probate judge of the proper county a permit for that purpose need not allege that he was not a registered pharmacist or assistant pharmacist in the employ of a druggist having a permit, in order to state a public offense.</p> <p>2. —-Election—When Not Defective. In a prosecution for selling intoxicating liquors contrary to law an election to rely on a transaction occurring on a stated day is not defective because the witnesses who testified to such transaction are not named, when there is no evidence of any,other transaction on the same day; nor is it defective because it does not designate a sale to a particular individual, or group of individuals, out of a dozen men who were drinking, the witnesses to the transaction being unable to identify the precise person or persons who furnished the money observed to pass.</p> <p>3. -Sufficiency of Evidence. In a prosecution of the character noted the evidence of a sale is not insufficient merely because the witnesses to the transaction were unable to identify, out of a dozen men who were drinking, the particular individual or individuals who furnished the money observed to pass.</p> <p>4. Practice, Supreme Court — Interpretation of Record. In a criminal appeal the record of the proceedings in the trial court will not be interpreted to show error, if it be susceptible of a reasonable interpretation to the contrary.</p> <p>5. -Retrospective Inferences. The law relating to retrospective inferences discussed, and applied to the evidence and instructions to the jury in this case.</p> <p>6. Statutory Construction — Not Invalid Because of Discretion over Permits Vested in Probate Judge. The statutes of this state regulating the sale of intoxicating liquors are not violative of the fourteenth amendment to the constitution of the United States because of the discretion vested in the probate judges of the respective counties over the subject of granting permits to sell such liquors for medical, mechanical and scientific purposes.</p> <p>7. Practice, District Court — New Trial. It is not an abuse of discretion for the district court to refuse a new trial, in a misdemeanor case, on account of the defendant's former conviction of the same offense, when such conviction was first brought to its attention by the motion for a new trial.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors — Legislature May Absolutely Prohibit Manufacture or Sale. Whenever, in its judgment, it is necessary for the protection of the health, morals, peace and safety of the people the legislature may prohibit the manufacture and sale of intoxicating liquors in this state for medical, scientific and mechanical purposes; and in the interest of the public welfare it may impose any conditions upon the conduct of those industries short of prohibition which it may deem proper.</p> <p>2. -Right to Sell Not a Privilege or Immunity of Citizenship. The right to sell intoxicating liquors is not one of the privileges or immunities attaching to citizenship in the United States.</p> <p>3. - State Constitution Affects Power of Legislature to Tolerate, Not to Restrain, Liquor Traffic. The amendment to the state constitution prohibiting the manufacture and sale of intoxicating liquors except for medical, scientific and mechanical purposes affected the power of the legislature to tolerate only, and did not abridge its power further to restrain or prohibit, the liquor traffic.</p> <p>4. Probate Judge — Discretion over. Permits to Sell Liquors is Judicial. The discretion vested by the statutes of this state in the probate judge over the subject of granting and refusing permits to sell intoxicating liquors is not an option to act according to prejudice or caprice, but it is a judicial discretion, to be exercised only with reference to the facts and circumstances of each case, after a full hearing.</p> <p>5. -Statute Authorizing Appeal and a Proceeding in Error, if Permit be Refused, is Valid. The provisions of the statute of this state authorizing an appeal and a proceeding in error from the action of the probate judge in refusing to grant permits to sell intoxicating liquors are valid, and afford ample remedies to those who wrongfully may be denied such permits.</p>

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

<p>Error from Saline district court; R. F. Thompson, judge.</p>

<p>Error from Miami district court; Winfield H.. Sheldon, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgments — Dormancy. A judgment or decree for the sale of • specific real property to pay a debt becomes dormant by the lapse of five years without process being issued thereon. The case of’ The State v. McArthur, 5 Kan. 280, approved and followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleading and Practice— Ultra Vires Not a Defense under a General Denial. Under an answer consisting solely of a general denial a corporation cannot avail itself of the defense of want of power to make a contract upon which it is sued, where such incapacity does not appear from the petition.</p> <p>2. -Justice’s Court — Answer Limits the Issues. Although in justice-court practice the defendant is not required to file an answer, if he does so it will limit the issues as under the ordinary rules of pleading.</p>

<p>Error from Elk district court; Granville P. Airman, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>County Commissioners — Not Authorized to Offer Reward for Fugitives from Justice. A board of county commissioners has no authority to offer a reward for the arrest and conviction of persons charged with the commission of offenses against the laws of the state.</p>

<p>Appeal from Franklin district court; Charles A. Smart, judge.</p>

<p>Error from Franklin district court; Charles A. Smart, judge.</p>

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

<p>Error from Sumner district court; Ivan D. Rogers, judge pro tern.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Replevin — Chattel Mortgage — Affidavit Held Sufficient. In an action of replevin by a mortgagee to recover the possession of the mortgaged chattels an affidavit alleging ownership thereof in the plaintiff is sufficient where the chattel mortgage contains no stipulation retaining title in the mortgagor; especially so where the verified petition in the action sets out the exact nature of the claim.</p> <p>2. -Answer States No Defense — Demand Not a Condition Precedent. In an action in replevin by the mortgagee to recover the mortgaged property the petition averred that the debt secured by the mortgage was past due and remained unpaid, and that the provision of the mortgage was that the mortgagee was entitled to the possession of the property upon default in payment. The answer, besides a general denial, substantially admitted the indebtedness, the giving of the mortgage, and the default, but charged that after the plaintiff had obtained possession of the property under the order of delivery issued in the action it was improperly and improvidently disposed of by him at a price much below its value, and prayed for a return of the property, or, if a return could not be had, a judgment for its value. Held, that the entire pleading, taken together, stated no defense to plaintiff’s recovery; that having asked the return of the property the defendant occupied the position of one asserting his right of possession at the time of the commencement of the action, and, hence, no demand need be shown; that the sole issue in a replevin action, in the first instance, is the right of possession of the replevied property at the beginning of the action, and, hence, the plaintiff’s wrong-doing in relation to the property after the commencement of the action could not be litigated therein.</p>

<p>Error from Atchison district court; Benjamin F. Hudson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Parties — Allegation of Authority. An averment in a petition that a guardian was appointed is put in issue by a verified answer denying generally the averments of the petition, where the affiant states that the denials, or contents of the answer, are true.</p> <p>2. - Case Distinguished. The case of Kimble v. Bunny, 61 Kan. 665, 60 Pac. 746, distinguished.</p> <p>3. Practice, Probate Court —Insane Person — Appointment of Guardian Unauthorized. A finding of a jury in an inquest that the subject of the inquiry is feeble in mind, incapable of managing business affairs, and a typical imbecile, is not a finding of insanity within the statutory meaning of the term and furnishes the probate court no authority to appoint a guardian for such feeble-minded person, and consequently gives the guardian no right to maintain an action in his behalf.</p>

<p>Error from Leavenworth district court; Jambs H. Gillpatrick, judge.</p> <p>STATEMENT.</p> <p>Plaintiff below, defendant in error here, is the owner of six lots in the city of Leavenworth, each fifty feet in width, facing on Front street and extending back and abutting on an alley in the rear. Plaintiff in error laid a railway-track in the alley. Preparatory thereto it dug a ditch more than twenty feet in width and from eighteen to twenty feet deep. It is alleged in the petition that the railroad company “appropriated the said alley for the whole width thereof, and a< part and portion of the west end of the said lots of the said plaintiff as aforesaid, permanently, to its own exclusive use, and obstructing the same, and ruining the said alley for public use, and destroying all ingress and egress thereto and therefrom, and leaving, such ditch or canal in such shape that the lateral support to the plaintiff’s lots has been wholly removed and destroyed, and because thereof much of the plaintiff’s lots along such canal from time to time has. slipped and fallen into the said canal, thereby greatly and permanently injuring his said property.” .</p> <p>It must be assumed that plaintiff below failed to-prove that the railroad company extended the excavation outside the alley and upon the west end of his lots, for the reason that the damages allowed by the jury, indicated by their answers to special questions, were for loss of use of the alley and for the impairment-of lateral support of the lots. In answer to particular-questions of fact the jury found that they allowed $25 as damages for the destruction or impairment of the lateral support of lot No. 1; $75 for lot 2; $125 for lot 3 ; $150 for lot 4 ; $175 for lot 5 ; and $200 for' lot 6. The jury itemized the damages allowed as follows :</p> <p>“For destruction of lateral support of lots Nos. 1, 2, 3, 4, 5, and 6, $750, and for the permanent loss of use of alley appurtenant to lots 2, 3, 4, 5, and 6, $200.”</p> <p>The following question and answer appear in the record :</p> <p>“72. Q,ues. If you find a general verdict for the plaintiff, state how much, if anything, you allow as damages because of any portion of lot 1 having slipped or fallen into the excavation made for such railroad, prior to the commencement of this action. Ans. Nothing.”</p> <p>The same response was made to like questions respecting each of the other lots.</p> <p>The jury found specially that the construction of the railroad interfered with Schwake’s usual manner of ingress to, and egress from, his lots, and that the use of the alley which he rightfully enjoyed was destroyed.</p> <p>The general market value of the six lots immediately prior to the construction of the railroad was found to be $9000 ; immediately after, $8050. The total difference in value was $950, for which amount the jury returned a verdict against the railroad company.</p> <p>The following questions were asked, and answers returned by the jury :</p> <p>“140. Ques. If you find a general verdict for the plaintiff, state how much, if anything, you allow as damages for the future cost or expense of constructing a stone wall along 'the lots in controversy. Ans. No ; we made allowance for that in damage in lateral support.”</p> <p>“160. Q,. If you find a general verdict for the plaintiff, then state whether, in arriving at the amount of such verdict, you have considered any loss or damage which plaintiff has sustained or may in the future sustain after the time of the construction of the track in said alley. 'A. Yes.</p> <p>“161. Q,. If the last above question is answered ‘Yes,’ then state what such items consist of. A. Taking away the lateral support of the lots and the destruction of the alley and its use.”</p> <p>Defendant below filed a motion asking the court to set aside so much of the amount of the general verdict as was rendered for deprivation of lateral support of the lots, to wit, $750. It also filed a motion for anew trial. Both motions were overruled and judgment for $950 entered on the verdict.</p> <p>The instructions to the jury were to the effect that a railroad could not destroy the alley for public use, and that if it was so destroyed the plaintiff might treat the act of the company as a permanent appropriation of the alley, and of his interest therein, and recover as damages the consequent depreciation in the value of the lots ; that, in such case, plaintiff would be entitled to the difference between the market value of his property immediately before the alley was appropriated for railroad purposes and the market value immediately after such appropriation; that an abutter on an alley in a city has the right of ingress to, and egress from, his property, of which he cannot be deprived by any person or corporation appropriating the alley to his or its own private use. There were no instructions which authorized the jury to consider damages arising from an impairment of lateral support of the lots.</p> <p>None of the evidence is preserved in the record. The railroad company assigns error in the action of the court for entering judgment on the findings for the amount of $750 for destruction of lateral support of the lots. It contends that judgment could go against it for $200 only, the amount allowed by the jury for the permanent loss of the use of the alley.</p>

<p>Error from Cloud district court; Hugh Alexander judge.</p>

<p>Error from Mitchell district court; Richard M. Pickler, judge..</p>

<p>Error from Pottawatomie district court; Robert C. Heizer, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Mortgage Foreclosure — Separate Tracts — Marshaling Assets. Where, in an action to foreclose a mortgage on three separate tracts of real estate, one of which is claimed by certain parties defendant other than the mortgagor, it is conceded by all parties that the mortgagor did have some interest in the land at the time he executed the mortgage, and it appears that subsequently to the execution of the mortgage, in an action in ejectment, a judgment was rendered in favor of such claimants, canceling all pretended title of the mortgagor in such tract, and quieting the title thereto in such claimants, and that the two remaining tracts are still the property of the mortgagor, it is held, that it is not error for the court to order the tracts of land included in the mortgage and not subject to the claim of such defendants to be sold first, and the proceeds applied to the satisfaction of the mortgage lien before a sale of the tract claimed by them.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Survey of Boundaries — Petitioner Who Was Present at Survey is Concluded by the Report if he Omitted to Appeal. One who joined in an application for survey for the establishment of the corners or boundaries of his land, under sections 1836, 1837 and 1838, General Statutes of 1889 (replaced by sections 1818 to 1822, inclusive, -General Statutes of 1901), who was present when his land was surveyed, and who omitted to appeal from the report of the survey, is concluded by it, notwithstanding that notice of the survey was not served upon him.</p> <p>2. -Presumption that Surveying Operations Were Continuous. Where the report of the survey of a congressional township shows that it was begun May 13 and completed July 30, one who wishes to challenge the result is not relieved from the necessity of appealing from the report within thirty days of the time it is filed by the fact that no- adjournments are shown by the report, when there is nothing to indicate that the surveying operations were not continuous between the dates named. In such case it will be presumed that no adjournments were had except those from one day to the next, and these need not be noted in the report.</p> <p>3. -Road Established and Used by Residents as Following Section-line, Contrary to Fact, Not a Dedication and Acceptance for Highway Purposes.' Where residents along a section-line mark out a road following such line as then understood to be located, and such road is generally traveled and is improved and put in repair by the township officers, such acts will not be interpreted as a dedication and acceptance for highway purposes of the strip of land actually marked out, used, and worked, where it is found that it in fact departs from the true position of the • section-line.</p> <p>4. - To Create a Public Road by Prescription, or Limitation, the Use Must be Adverse. Where a legal highway is duly established by order of the county board along a section-line, but the road actually traveled, through misapprehension, departs somewhat from the true line at one place, such conditions, for however long continued, will not operate to effect an abandonment of the public easement over the true course, or to create by prescription or limitation a right of way over the tract actually used for travel.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Fire Insurance— Vacancy Clause Held Waived by Agent. Where a policy of insurance contained the condition that it should be void if the building insured thereby be or become vacant or unoccupied and so remain for a period of ten days, unless otherwise provided by agreement indorsed thereon, and such policy was issued by an agent having authority to issue policies of insurance and consummate the contract, and the agent at the time the policy was issued had knowledge that the building was then vacant and unoccupied, and- thereafter and within ten days, upon request of the assured, agreed to indorse a vacancy permit on the policy, but failed to do so, and the assured relied upon the acts and agreement of the agent,- held, that the insurance company waived the condition of the policy, and was liable for a loss by fire occurring while the building continued vacant and unoccupied.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — New Trial — Erroneous'Instruction. Waived. An erroneous instruction is “an error of law occurring at the trial,” and, under the code, such an instruction, without objection or exception, is not a ground for a new trial.</p>

<p>Error from Sumner district court; James Lawrence, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Bill op Exceptions — Extension of Time for Settling — “Until” Not a Word of Inclusion. An order was made extending the time to settle a bill of exceptions until December 4. In support of a contention that the word “until ” was intended to be used as one of inclusion, affidavits are offered to the effect that when the order was made court had been adjourned to December 3, but it was not certain that the judge would arrive at the county-seat before-the close of business hours on that day, and that it was understood that court would be in session on the 4th. Held, that this showing affords no ground for interpreting the order as including the 4th as a part of the time within which the bill of exceptions might be settled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law-Indeterminate-sentence Law Held Ex Post Facto. T. was convicted of a felony committed before the passage of chapter 375, Laws of 1903, commonly called the "indeterminate-sentence” law, but was sentenced to the penitentiary under that act. The law prescribing the punishment for the offense when it was committed provided for a scale of credits to be given for good behavior. The act of 1903 contains no such provisions. Held, that the latter act, as to T., is ex post facto.</p> <p>2. Practice, Supreme Court — Order to Resentence upon Re- • versal. Upon the reversal of a judgment of sentence in a criminal case this court is authorized by section 5729, General Statutes of 1901, to remand the cause with instructions to the court below to set aside the erroneous sentence and resentence the appellant.</p>

<p>Appeal from Rush district court; Charles E. Lob-dell, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Habeas Corpus —Authority of Judge at Chambers. A judge at chambers has no authority to change a judgment of the court.</p> <p>2. - Commitment — Judgment. Where an order was made at. the solicitation of a convicted defendant by a judge at chambers directing the issuance of a commitment of such defendant to the jail of a county other than the one designated in the judgment of the court, such order is without authority, and does not serve to change the judgment in any respect, and the defendant may thereafter he committed in accordance with its terms.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors —Instructions Concerniny an Election of Offenses. In a prosecution for the unlawful sale of intoxicating liquors an election by the state of the transaction on which it relies for conviction is not an essential ingredient of the instructions to the jury. If it be in writing it need not be copied in the instructions, and it may be read to the jury at the time the charge is delivered without violating the statute requiring instructions to be in writing and filed with the papers in the case.</p> <p>2. -Instructions Concerning Defendant’s Failure to Testify. An omission to instruct the jury in a criminal case that the neglect or refusal of the defendant to testify shall not be considered by the jury, and shall not raise any presumption of guilt or be construed to affect his innocence or guilt, is not error, in the absence of a request for such an instruction.</p>

<p>Appeal from Sumner district court; Carroll L. Swarts, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Assault with Intent to Kill — Instructions Concerning Inferior Offenses. Where a defendant, prosecuted upon a charge of shooting complainant with intent to kill him, testifies that he fired the shot by which the latter was wounded, but did so in self-defense when assailed by him, for the sole purpose of frightening him, without intending to kill, or even to hit him, it is error to omit to instruct upon assault and battery as well as upon the felony charged, when instructions relating to such misdemeanor are asked by defendant.</p>

<p>Appeal from Shawnee district court; Z. T. Hazbn, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Perjury — Allegation of Materiality of False Testimony. In a prosecution for perjury the materiality of the false testimony to the cause in which it was given may be pleaded in either of two ways : (1) Pacts may be averred from the relation of which materiality is made to appear; (2) or a direct allegation may be made that the testimony was material.</p> <p>2. Criminal Procedure — Arraignment after Jury have been Sworn. If in a felony case the defendant and his attorneys appear when the case is called for trial and participate in the selection of a jury, and after the jury have been sworn it be discovered that the defendant has not been arraigned, and that no plea has been entered, the court may then cause the defendant to be arraigned, require him to plead, and, upon his refusal to do so, enter a plea of not guilty for him, reswear the jury already chosen, and proceed with the trial of the case.</p> <p>3. Perjury — Proof of Official Character by Secondary Evidence. In a prosecution for perjury committed before a justice of the peace the justice may, for the purpose of proving his official character, give oral testimony as to the contents of lost documents relating to his title to office, and as to his public discharge of the duties of the office under a claim of official right.</p> <p>4. -Proof of the Pendency of a Proceeding. In a prosecution for perjury the complaint filed and warrant served in the action in which the false testimony was given are competent and relevant to prove the institution and pendency of the proceeding to which they related.</p> <p>5. Bill op Exceptions — Word “Until” Construed. If by an order in a criminal case a defendant be required to enter into a recognizance for his appearance in court on June 25, 1904, and he be given until that time in which to present á bill of exceptions, the strict legal and lexigraphie meaning of the word “until” is controlled by the context, and the bill may be presented on the day named.</p>

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

Error from Lyon district court; Dennis Madden, judge. STATEMENT. This was an action sounding in tort, brought in May, 1901, by Elizabeth Holderman, plaintiff below, against Calvin Hood, George W. Newman, Isaac E. Lambert, R. T. Battey, W. Martindale, and the Excelsior Mill Company, defendants below.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Bill of Exceptions Not Reviewable unless Signed within Specified Time. Where a defendant, upon conviction of a misdemeanor, is given sixty days in which to prepare a bill of exceptions, and within that time the same is presented to the judge for allowance, but is not allowed and signed until after the expiration of the time given, it is held, that it is not allowed and signed in time and cannot be reviewed by the supreme court.</p> <p>2. Intoxicating Liquors — Information. Where an information charges the keeping and maintaining of a common nuisance, and the day the information was verified and filed is included within the time of charging the offense, it is not error to overrule a motion to quash.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — Criminal Appeal —Writ to Compel Trial Judge to Stay Execution Denied. Where a defendant convicted of a misdemeanor appeals to the supreme court under section 1 of chapter 389, Laws of 1903, the transcript must be, filed in the supreme court within ninety days after the rendition of the judgment to entitle defendant to a stay of execution pending the appeal; and where it is not so filed, and execution has issued to satisfy the judgment, mandamus will not lie to compel the trial judge to make an order staying execution.</p> <p>2. Criminal Appeal — Act of1903 Construed. The pronouncement of a judgment of conviction constitutes the rendition of the judgment, within the meaning of chapter 389, Laws of 1903, which allows ninety days after the rendition of a judgment for filing a transcript- on appeal from the conviction of a misdemeanor, and grants the defendant a stay of execution.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Chattel Mortgage — Constructive Notice — Commission Merchant Held Liable on an Implied Contract. A commission merchant who receives mortgaged cattle sent to him for sale without the consent of the mortgagee, and in violation of the terms of the mortgage, and who sells them and pays the proceeds to the consignor without actual notice of the mortgage, but with constructive notice imparted through its record, is liable to the mortgagee in an action upon an implied contract to pay him the proceeds of the sale.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Chattel Mortgage — Commission Merchants, without Notice, Held Not Liable on Implied Contract. A commission merchant who receives mortgaged cattle sent to him for sale without the knowledge or consent of the mortgagee, and in violation of the terms of the mortgage, and who sells them and pays the proceeds, less his commission, to the consignor, without notice of the mortgage, does not derive such a benefit from the transaction as to authorize the mortgagee to waive the tort and recover in an action upon an implied contract.</p> <p>2. -- Record Held Not to Impart Constructive Notice. The filing of a chattel mortgage for record does not impart constructive notice to a commission merchant to whom the mortgaged property is sent for sale and who sells it and pays the proceeds, less his commission, to his consignor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Corporations —Liability of Stockholders for Unpaid Subscriptions —Method of Enforcement. In an action by the stockholders against an insolvent corporation and its creditors to have-a receiver appointed, the assets marshaled, its liabilities determined, the assets applied to the payment of such liabilities, and the corporation dissolved, where unsatisfied judgments still remain after all its tangible property has been applied to the satisfaction of its debts, it is held, that it is not error for the court, in the same action, to order the receiver to take such steps as may be necessary to determine the amount due from the plaintiffs, as stockholders, for unpaid subscriptions to the capital stock; and it is further- held, that upon application the court may render judgment in favor' of the receiver against the several plaintiffs, as stockholders, for such sums as it may find due the corporation.</p>

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

Error from Sedgwick district court; D. M. Dale, judge. STATEMENT. This was an action brought by C. H. Pry, plaintiff below and plaintiff in error here, in the city court of Wichita, to recover the sum of $300 from defendants in error. Fry had judgment in the city court, from which defendants below appealed.

<p>SYLLABUS BY THE COURT.</p> <p>Evidence — Hearsay Testimony. Where the testimony of a witness regarding a conversation had with a party is otherwise competent as tending to show material admissions, it is not rendered incompetent by the fact that in reproducing his own language he is incidentally required to repeat statements which he then made as to what other persons had told him.</p>

<p>Error from Montgomery district court; Thomas J. Flannelly, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgage Foreclosure — Rights of Contract Creditor. A simple contract creditor who claims no interest in, or lien upon, his debtor’s land cannot, in a foreclosure action, attack the validity of a real-estate mortgage given by the debtor to another creditor.</p> <p>2. Practice, District Court — Evidence and Instructions in Foreclosure Case. Alleged errors relating to the admission of evidence and the giving of instructions reviewed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contracts — Arbitration by Agreement — Award Binding. Where an agreement is made to submit a controversy to two arbitrators, they to select a third to act with them in case they cannot agree, an award made by the third, or special arbitrator, so selected, and one of the others, is binding on the parties.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Proof. Agency cannot be proved by the mere acts of the one who assumes to act in that capacity.</p>

<p>Error from Clay district court; Sam Kimble, judge.</p>

Error from Lyon district court; Dennis Madden judge. STATEMENT. The ¿daintiff by this proceeding seeks to reverse the orders, rulings and judgment made and rendered by the court below against him in an action brought to recover damages alleged to have been the result of a fire set by defendant’s employees while operating its engines and conducting its business.

<p>Error from Cowley district court; Carroll L. Swarts, judge.</p>

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

T. Hazen, judge. STATEMENT George Klauer was tried in the district court on a complaint originally filed before a justice of the peace in which he was charged in separate counts with fifteen distinct violations of the prohibitory liquor law. The question of his guilt under nine counts was submitted to the jury. After hearing the evidence and instructions from the court the jury retired on Saturday, February 22, to consider their verdict.

<p>Appeal from Wallace district court; James H. Reeder, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Fraudulent Conveyance — Foreign and Domestic Judgments— Pleading. Plaintiff recovered a judgment in Kansas, and subsequently recovered a judgment thereon in Illinois. In an action in Kansas by plaintiff, based on the Kansas judgment, to set aside alleged fraudulent conveyances by the judgment debtor, the answer of the defendants claiming under the conveyances by the judgment debtor alleged the recovery of the Illinois judgment upon the Kansas judgment, averred the Kansas judgment to be merged thereby, and that it could constitute no basis for plaintiff’s action. Plaintiff replied, admitting the recovery of the Illinois judgment upon the Kansas judgment, and averred the Illinois judgment to have been duly vacated.’ Held, that it was error to sustain a demurrer to plaintiff’s reply.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court— Time for Filing Petition in Errm— Laches. The statute provides that no proceeding to reverse an order or judgment of an inferior court shall be commenced unless within one year after the rendition thereof. A petition in error was brought to the office of the clerk of this court between four and five o’clock in the afternoon of the last day of the year allowed. The office was closed, it being a rule to close it at four o’clock on Saturdays. No further effort was made to lodge the petition with the clerk and procure the issuance of summons that day, but this was done the following Monday. Held, that the action was not begun in time.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutory Construction — Natural Rights of Persons. A statute in derogation of the natural right of a person to hold and manage his own property must be strictly construed.</p> <p>2. -Status of One Convicted of Murder and Imprisoned Pending Action by the Governor. One convicted of murder in the first degree, and sentenced under the statute as it now exists to suffer death, the same to be inflicted at a time to be appointed by the governor after the expiration of a year from the time of conviction, is not thereby, during the time of his detention in the penitentiary, rendered incapable of managing his own estate. Such a sentence is not one of imprisonment for life, or for a term less than his natural life.</p> <p>3. -Judgment in Foreclosure against One Subsequently Convicted of Murder in the First Degree Held Not Dormant— Case Overruled. During imprisonment in the penitentiary of one convicted of murder in the first degree an order of sale was issued upon a judgment of foreclosure rendered against him before such imprisonment, the land was sold, the sale confirmed, and a sheriff’s deed issued. Held, that the judgment did not become dormant by reason of such imprisonment, and that such proceedings and deed were not void; and held, further, that neither section 337 nor 338 of the criminal code (Gen. Stat. 1901, §§5775, 5776) applies to such a sentence. The case of Ashmore v. McDonnell, 16 Pac. [Kan.] 687, overruled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Schools — High School. A high-school grade of a city system of schools is a part of the common-school system.</p> <p>2. -:- “Common Schools” Defined. The term “common schools,” as used is section 2 of article 6 of the constitution, means free common schools.</p> <p>3. -High Schools in Cities of the Second Class — Tuition Unlawful. That part of section 1 of chapter 224, Laws of 1889 (Gen. Stat. 1901, § 6305), which authorizes cities of the second class to maintain high schools in whole or in part by collecting a tuition fee for each pupil, violates section 2 of article 6 of the constitution, and is therefore void.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law— Telephone Companies — Title of Act Sufficient. The title of chapter 104 of the Laws of 1885 (Gen. Stat. 1901, §§1251,1252), entitled “An act providing for the formation of telephone companies,” is within the requirement of section 16 of article 2 of the constitution, that “no bill shall contain more than one subject, which shall be clearly expressed in its title.”</p> <p>2. -Amendments — Telegraph and Telephone Companies— Valid Act. Chapter 104 of the Laws of 1885 (Gen. Stat. 1901, §§ 1251,1252), conferring upon telephone companies all the rights given to telegraph companies by article 8 of chapter 23, General Statutes of 1868 (Gen. Stat. 1901, §§ 1342-1348), is not in contravention of the requirements of section 16 of article 2 of the constitution, that “no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended.”</p> <p>3. Telegraph and Telephone Companies — General Telegraph Act Not Repealed by Charter Act. No part of the general telegraph act (Gen. Stat. 1868, ch. 23, art. 8; Gen. Stat. 1901, §§ 1342-1348) was repealed by the charter act of cities of the first class (Laws 1881, ch. 37).</p> <p>4. Statutory Construction — Effect of General Repealing Clause. A general repealing clause in an act is a legislative expression which carries with it a repealing effect only where by law the effect would be the same without such repealing clause.</p> <p>5. Cities op the First Class — Telegraph and Telephone Companies — Use of Streets and Alleys. Thephrase, “to grant the right of way,” in subdivision 22 of section 11 of the charter act of cities of the first class (Laws 1881, ch. 37; Laws 1903, ch. 122, §53), construed with section 74 of the general telegraph act (Gen. Stat. 1868, ch. 23, art. 8; Gen. Stat. 1901, §§1342-1348), gives to cities of the first class the right to determine and designate the streets and alleys of the city which may be occupied and used by the posts and wires of telegraph and telephone companies.</p> <p>6. -Police Powers over Telegraph and Telephone Companies. The general police powers of cities of the first class may be exercised over telegraph and telephone companies within their corporate limits, together with such regulations as are by statute conferred upon cities of the first class.</p>

<p>Error from Leavenworth district court; James H. Gillpatrick, judge.</p>

<p>Error from Washington district court; Hugh Alexander, judge.</p>

<p>Error from Morris district court; Oscar L. Moore, judge.</p>

<p>Error from Leavenworth district court; James H. Gtllpatrick, judge.</p>

<p>Appeal from Cowley district court; Carroll L. Swarts, judge.</p>

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

<p>Error from Rice district court; Jermain W. Brinckerhoee, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Revivor of Action — Statute Construed. The statute fixing one year as the time within which an action may be revived against the representatives or successor of a deceased defendant (Gen. Stat. 1901, §4888) is not a mere limitation upon a remedy, but it conditions the very right to revive; and a party seeking to avail himself of its benefits must strictly comply with its terms.</p> <p>2. -Limitation — Inexcusable Delay. The fact that a district court, eight months after the time when an order reviving an action against the representatives or successor of a deceased defendant first could have been made, erroneously decided that it had no jurisdiction of the cause will not excuse a failure to revive within one year, when no attempt was made to procure an order of revivor before the jurisdiction question was determined.</p>

<p>SYLLABUS, BY THE COURT.</p> <p>1. Railroad — Incorrect Ticket — Expulsion of Passenger. ( Where a railroad ticket correctly recites the date of its issuance, but is marked with a punch in a manner that, according to its printed statements, indicates that it had expired prior to that date, it cannot be said, as a matter of law, that it is for this reason void, and that its holder may not recover damages for being expelled from a train when he presents it for passaged</p> <p>2. Practice, District Court — Peremptory Direction of Verdict. Oral evidence in support of an affirmative defense, even if not contradicted, will not authorize a trial court peremptorily to direct a verdict for the defendant.</p> <p>3. Railroads — Transfer of Ticket Upheld. A round-trip railroad ticket containing provisions that it shall be used only by the original holder whose signature it bears, but not, in fact, signed by any one, which is sold with the express understanding that it shall be used by A. in going to, and by B. in returning from, the place of destination, is not void when presented by B. upon such return passage, after having been used by A. for the first part of the journey.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Promissory Note — Pleading and Practice. In the absence of a verified denial of an allegation of the indorsement of negotiable paper, or of testimony to the contrary, the indorsee is presumed to be a bona fide holder for value and to have acquired the paper before maturity, discharged of all equities as between the original parties.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Warranty — Limitation. Ordinarily a general warranty of condition does not cover defects which are plain and obvious to the purchaser, or are at the time known to him.</p> <p>2. - Obvious Defects Not Included. Representations as to the condition of a second-hand thrashing-machine known to he defective, made to a purchaser who is experienced in handling such machines and competent to repair them, and who actually did repair the machine sold for the seller and thus learned its condition before accepting it, impose no liability on the seller for breach of warranty, since an obvious defect known to the parties when the general warranty was given is not deemed to be included in it.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury at Crossing. A railway-track crossing a public street is not a warning to a traveler going over it of danger resulting from the negligence of a gatekeeper in allowing an arm of the gate to descend and injure the person crossing the track.</p> <p>2. - Open Gates — Assurance of Safety. Open gates tended by a gatekeeper of a railway company where a public street crosses its tracks are an affirmative assurance to a traveler on the street that his safety in crossing will not be imperiled by the descent of a gate-arm.</p> <p>3. -Injury at Crossing — Contributory Negligence. After a traveler in a buggy, driving two horses, on a public street at a railway-crossing had passed over the railway-tracks, one arm of a gate in front of him was allowed by the gatekeeper to descend across the buggy in which he was riding. In an action for personal injuries against the railway company the question of contributory negligence should have been confined to the care exercised by the traveler to avoid injury at, and after, the time when the gate-arm began to descend.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Procedure —Information—Instructions. Under an. information which charges the crime of robbery in the first degree, and which includes the crime of robbery in the second degree as well as the crimes of grand largency and petit larceny, it is not error for the trial court to omit instructing the jury as to any one, or all, of such lower degrees of crime included in the charge, when the evidence tends to establish the highest degree of crime charged and does not tend to establish guilt of any lower degree of crime included therein.</p> <p>2. - Omission of Instruction — Arrest of Judgment. Error cannot be predicated on the omission of the trial court to give fuller instructions when the omission is first called to the attention of the trial court after verdict by a motion for a new trial; and such omission is not a proper ground for-a motion in arrest of judgment.</p> <p>3. -Burglary — Forms of Verdict Submitted. When, under the evidence and the instructions, the jury can properly return only a verdict of burglary in the first degree, or a general verdict of “not guilty,” it is not error for the court to omit, or to refuse, to give any other form of verdict than the two appropriate to these findings.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Change of Venue. The fact that a large number of the inhabitants of the county may be prejudiced against the defendant will not justify a change of venue on the ground of local prejudice if the remainder of the people of the county are free from prejudice and the defendant may still have a fair trial within the county.</p> <p>2. - Prejudice of Trial Judge. The prejudice of the judge, which is made a statutory ground for change of venue in a criminal case, refers to his prejudice against a party, and not to an opinion that the judge has formed, or is believed to entertain, upon a legal question arising in the case.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities and City Officers— Personal Injuries — Instructions. In an action against a city for an injury caused by a defect in a sidewalk, where there is no evidence that would justify a finding that the plaintiff knew of the existence of the defect, or by the exercise of ordinary diligence might have known of it, it is error to instruct the jury as to the degree of care required of one using a walk knowing it to be defective.</p> <p>2, - Unsupported Finding of Notice of Defect. In such a case, where the defect complained of was a small hole in the walk and a slight irregularity in the blocks of stone of which it was composed, and the plaintiff had no opportunity to learn of the existence of such defect except by seeing the condition of the walk at the time of, or a few moments before, the accident, which occurred on a dark night, there being no evidence of any artificial illumination except that afforded by a dim light at the head of an adjacent stairway, a finding that defendant knew of the defect, or in the exercise of' ordinary care might have known of it, would not be justified.</p>

Error from Sedgwick district court; Preston B. Gillett, .judge pro tern. STATEMENT. This was an action of ejectment brought by Osie A. Raymond to recover from the city of Wichita a strip of land 54 feet wide by 431 feet long, being the north 54 feet of what is known as Douglas avenue, in the city of Wichita, between Wichita street and Waco avenue.

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Pleading and Proof. Under an allegation in a petition that the injury complained of had resulted in bruising, maiming and injuring the plaintiff, and had caused him to become sick and sore, and had fractured his left leg, thereby causing hita great bodily pain and mental anguish, proof maybe' received that eight days after the happening of the accident, and after the leg was first set, it became necessary to rebreak the uniting bones and reset the same, thereby causing the plaintiff pain.</p> <p>2.-Pleading and Proof. In pleading the character of an injury it is not necessary to give a specific catalogue of every incident or subordinate result flowing therefrom in order to introduce proof of such results; but the pleading of such injury will permit proof of all results which naturally and proximately ensue therefrom.</p> <p>3. -Pleadings and Declarations of Attorney — Defective Road. It was claimed in the petition that the accident which resulted in the injury complained of was caused by the negligence of the defendant in making a road along which plaintiff was driving, in that the road was built of loose and incompact material, such as sawdust, pieces of boards-, sticks, and shavings. A declaration of the plaintiff’s attorney during the progress of the trial that he did not claim that the road itself was so made, but the ground upon which the road was built, did not amount to an abandonment of the negligence as claimed in the petition.</p> <p>4. -Proof of Expense for Services of Surgeons and Nurses. Evidence showing in a general way that surgeons and nurses had bestowed considerable time and attention upon plaintiff without in any manner showing the value of such services does not alone afford sufficient basis for a verdict for such expenses. A verdict rendered on such evidence should be set aside.</p>

Error from Jefferson district court; Marshall Gephart, judge. STATEMENT. This was an action brought by plaintiff in error, who was plaintiff below, against the Atchison, Topeka & Santa Fe Railway Company to recover damages for ejection from one of its trains while she was on her way from Pittsburg, Kan., to Chicago.

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Right of Way — Proof of Consequential Damage. Upon an appeal from an award of commissioners giving L. damages for the taking of a right of way for a railroad, he sought to prove consequential damage to his land as an entire tract. It had, however, before this been divided by the right of way of another railroad. To establish his ownership, he introduced a deed under which he claimed title, which excepted from its operation the right of way of the other railroad. Held, that under this state of the proof he was not entitled to introduce evidence of the consequential damage occasioned to the entire tract.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Setting Fire to a Field. Setting fire to a field of high wheat stubble in which are standing stacks of wheat belonging to another, when there is nothing which is reasonably calculated to prevent the fire from being communicated to, and destroying, such stacks, is, in case they are destroyed by the fire, actionable negligence, even though the person who sets the fire has the right to burn off the stubble and has no intention of burning the stacks.</p> <p>2. -Reasonable Precaution Necessary. Fire is a dangerous agent to use in the removal of rubbish, and where the property of others is exposed to its destruction it can only be rightfully set out after every reasonable precaution has been taken to prevent damage to such property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. “Verbal Will ’’ — Statute Construed. The statute of Kansas provides that a verbal will may be made in the last sickness of the testator. (Gen. Stat. 1901, §8007.) By this term it is not meant that he must be in extremis or in articulo mortis; nor is it necessary that he be prevented from making a written will by surprise of sudden' death.</p> <p>2. -Expectancy and Liability of Death from the Fatal Disease. The requirement that a verbal will, to be valid, must be made in the last sickness is satisfied if the fatal disease has progressed to such a point that the testator expects, and is liable, to die therefrom at any time, and, in view of such expected death, and as preparatory thereto, such will is made, and if death ensues from such illness.</p> <p>3. -Prior Preparations and Subsequent Opportunity Immaterial. A verbal will made under such circumstances is not rendered invalid by the fact that there had been prior preparation to make it, nor by the further fact that there were sufficient time and opportunity thereafter to make a written one.</p> <p>4. - Testator’s Words to Witness Held Sufficient. The requirement of the statute, that one making a verbal will shall have “called upon some person present at the time the testamentary words were spoken to bear testimony to said deposition as his will,” is satisfied where the testator at the time said to those standing near: “I want you to see that it is carried out the way I want it to be.”</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury to Employee — Pleading. Where a petition, in a personal-injury ease alleges a specific act of negligence by one of three designated agents of the defendant, it is not subject to a motion to make the allegation more definite and certain by pointing out which of such agents is claimed to have committed the act when it is also averred that plaintiff has no further information, and such averment is not shown to have been made in bad faith.</p> <p>2. Practice, District Court — Motion for New Trial Not Premature. Where a jury, after reporting their verdict and special findings, are sent back to make one of the latter more definite, a motion for a new trial filed while they are still out for that purpose will not be treated as prematurely filed, where there is some evidence that the attorney who presented the motion to the clerk requested that it be held until the return of the jury, and the clerk’s indorsements upon the motion and the special findings show a simultaneous filing, the trial court having heard and decided the motion upon its merits.</p> <p>3. Practice, Supreme Court — Review of Grounds for New Trial. A recital in a case-made that upon the hearing of a motion for a new trial that included several grounds the attorney for the defeated party argued only a part of such grounds does not of itself show a waiver of those not argued.</p> <p>4. Railroads — Evidence Sufficient. The evidence examined and held sufficient to support the verdict and special findings.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Foreign Corporations — Right to Sue — Practice. Where, in a suit by several foreign corporations to set aside an alleged fraudulent conveyance of lands, the defendants, before trial, file a motion to dismiss for the reason that the plaintiffs are doing business in this state without having complied with the provisions of chapter 10 of the Laws of 1893 and chapter 125 of the Laws of 1901 (Gen. Stat. 1901, §1248 et s.eg.), and said defendants offer evidence in support of their motion, it is error for the court to refuse to hear the evidence, and, thereupon, to deny the motion.</p> <p>2. Practice, District Court — Findings by Court. Where a case [is tried to a court without a jury and one of the parties requests the court to state its findings of fact separately from its conclusions of law, it is error for the court to refuse the request, or to refuse to make such separate findings so definite that the party may have a fair opportunity to except to ■ the decision of the court upon the conclusions of law involved in the trial.</p>

<p>Error from Cowley district court; Carroll L. Swarts, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Homestead and Exemptions — Bowling-alley. A bowling-alley is not exempt from seizure and sale on execution as the tools or implements of the keeper’s trade or business.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Real Party in Interest. Where a promissory note is sued upon by the holder, to whom it has been unconditionally assigned by the payee, a complete defense on the sole ground that the plaintiff is not the real party in interest can only be established by proof of facts showing that a payment to him would not be a protection to the defendant against further liability on the note.</p> <p>2. -Holder Held to Have the Right to Sue. T., being the owner of a tract of land, permitted G. to control it and rent it in his own name to secure him against loss through having signed a bond as surety for T. G. accordingly leased the land to S., who agreed to pay him rent. After the release of G. from liability on the bond he agreed with T. to procure from S., in satisfaction of the rent due, two notes then owned by S., and to turn them over to T. G. obtained the notes from S. in satisfaction of the claim.for rent, taking an assignment to himself, and without the consent and against the objection of T. brought action upon them against their maker, M. Held, That M. would have been protected by a payment to G., and cannot defeat a recovery on the ground that the plaintiff is not the real party in interest.</p> <p>3. -Agreement of Payor and Payee Immaterial. Under the circumstances stated in the preceding paragraph the conclusion announced would not be affected by the further assumption that T. had agreed with M., without any consideration sufficient to support a contract, to accept a less sum than their face in full satisfaction of the notes.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Chattel Mortgage — Renewal Affidavit — Competency of Notary Public. A chattel mortgage, regular upon its face, duly filed for record, and accompanied by an affidavit of renewal, filed in proper time and regular upon its face, and regular in fact except for the latent defect that the notary public who administered the oath was a stockholder in the mortgagee corporation, imparts notice as fully as if such defect did not exist.</p> <p>2. -Act of Notary Ministerial, Not Judicial. The act of a notary public in administering the oath, in such case, is ministerial and not judicial; it is, at most, voidable — not void.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Estopped from Complaint. A party that procures a court to proceed in an irregular way and invites a particular ruling is precluded from assailing such proceeding and ruling on review.</p> <p>2. Mortgage Foreclosure — Right to Redeem. An owner of a substantial interest in land, acquired from a mortgagor, is entitled to redeem from a foreclosure sale as against one to whom the mortgagor subsequently gave a deed to the land, where the latter took the deed with knowledge of the interest and rights of the former.</p>

<p>Error from Leavenworth district court; Jambs H. Gillpatrick, judge.</p>

<p>Error from Morris district court; Oscar L. Moore, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railways — Right of Way — Right of Possession. One not the owner of the fee, and not claiming under such owner, who without right enters upon a railroad right of way, or depot grounds, or lands held by a railroad company for terminal facilities, cannot justify such possession by showing that his occupancy does not interfere with the actual operation of the road by the company.</p>

<p>Error from Clay district court; Sam Kimble, judge.</p>

<p>Error from Franklin district court; Charles A. Smart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Time for Suggesting Amendments to Case-made. Although chapter 380 of the Laws of 1903 gives the party opposed to the one serving a case-made ten days thereafter for the suggestion of amendments, still the trial court may, with the consent of the parties to the action, by order limit the time of suggesting amendments to five days.</p> <p>2. -Settlement of Case-made — Jurisdiction of Former Judge. The trial "court, on the motion of an unsuccessful party to an action, extended the time within which he might serve a ease-made on the opposite party to fifteen days from the date judgment was entered, and, by consent of the parties, allowed the opposing party five days thereafter for the suggestion of amendments. It made no order fixing the time within which such case-made should be settled and signed. The term of office of the judge expired eleven days after the entry of the judgment and order. Held, that he had jurisdiction to settle and sign the ease-made for twenty days after the entry of the judgment and order, and no longer.</p> <p>3. -Invalid Settlement — Proceeding Dismissed. The act of a former judge in settling and signing a case-made on the twenty-fifth day after the entry of a judgment and order is without jurisdiction and void, and a proceeding in error based thereon will be dismissed on the motion of the defendant in error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Title and Ownership — Exception in Deed — Minerals. A deed to real estate contained the following provision: “This deed is made subject to the following exceptions, reservations, and conditions, to wit: . . . The said party of the first part hereby reserves the coal and all other mineral underlying said land.” Held, that this constituted an exception, not a reservation. The title to the coal remained in the grantor; not a mere easement to go upon the land to mine it.</p> <p>2. -Parol Testimony. There is not such ambiguity in the language quoted from the deed as to permit the introduction of parol testimony to change or vary the terms of the deed.</p> <p>3. -Abandonment. In this state the fee-simple title to real estate cannot be lost by mere abandonment.</p> <p>4. Practice, District Court — Election of Defenses. Ordinarily a party, after having deliberately selected his ground of defense and finding himself defeated thereon, should not be permitted so to shift it as to court the hazard of another battle.</p>

<p>Error from Comanche district court; Edward H. Madison, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale op Personal Property — Warranty. Where goods are sold by sample and the seller is also the manufacturer, there is an implied warranty on his part that they are free from any latent defects that could not be discovered upon ordinary examination.</p> <p>2. -Manufacturer. One engaged in putting up apples in cans for sale is a manufacturer, within the meaning of the rule stated.</p> <p>3. - Worthless Canned■ Fruit — Liable on Implied Warranty. Where one sells to a merchant canned apples of his own packing, the sale being made by sample, and by reason of a defect due to the method employed in their preparation, which could not be discovered upon an inspection of the opened sample cans, the goods sold become worthless before they can be resold in the ordinary course of trade, the seller is liable to the buyer for a breach of an implied warranty against such defect.</p>

<p>Error from Lyon district court; Dennis Madden, judge.</p>

<p>Appeal from Elk district court; G. P. Aikman, judge.</p>

<p>Appeal from Rice district court; Jermain W. Brinckerhoff, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Appeal Dismissed. If, after an appeal to this court, a defendant convicted of felony becomes a fugitive from justice, the appeal will be dismissed.</p>

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

Error from Jackson district court; Marshall Gephart, judge. STATEMENT. This was a suit by the National Bank of Holton, a creditor of Henry Breitkreutz, sr., to set aside amortgage for $2600 executed by the latter to his son, Herman Breitkreutz, and also a deed to his daughter-in-law, Rachel N. Breitkreutz. The bank held a note ■of Henry Breitkreutz, sr., and Fred Breitkreutz for $2840.52, which became due on February 17, 1899.

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Exemplary. In an action where no actual damage is alleged or proved, no exemplary, or punitive, damages are recoverable.</p> <p>2. -Mental Suffering. In an action where no physical injury is alleged or proved, no damages for mental suffering or anguish are recoverable.</p> <p>3. Practice, District Court — Condition Precedent to Reopening a Case. Where the plaintiff has introduced all the evidence he chooses to offer and has rested his case, and a demurrer to such evidence is interposed and properly sustained, it is not error for the court to condition the allowance of a motion of the plaintiff to reopen the case for the purpose of offering certain other specific evidence upon an undertaking of plaintiff’s counsel to offer still further evidence shown to be immediately accessible, which is regarded by the court as essential. Upon the refusal of the plaintiff’s attorney to comply with such condition, the court may deny the application to reopen, and render judgment for the defendant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Removal of Cause — Instant Operation of Petition and Bond. The filing of the requisite petition for removal, accompanied by a legal and sufficient bond, instantly operates to transfer a removable case from the state to the federal court.</p> <p>2. - Amendment of Amount Claimed Ineffectual. A plaintiff who has demanded a recovery from defendant of more than $2000 cannot defeat a removal by an amendment of his petition reducing the amount of his demand, after a proper and sufficient petition and bond for a removal have been filed.</p> <p>3. -Amount in Controversy Defined. In actions for unliquidated damages the amount in controversy is ordinarily the amount which the plaintiff in' good faith demands, and where the law prescribes no limitation on the extent of the recovery the determination of the amount of recovery rests with the court and jury trying the case.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Landlord and Tenant — Gas and Oil Lease Construed. In an action for the recovery of real property the title was admitted to be in plaintiffs and the defendant had possession, and claimed a right of possession, under a gas and oil lease, which provided that it should become null and void at the expiration of two years from its date if a well had not have been sunk on the premises, unless the lessee should elect from year to year to continue such lease by paying, or depositing to the credit of the lessor at a designated bank, each year in advance, twenty-five cents for each acre covered by the lease. Held, that the placing of the lessee’s check in the designated bank for the amount of money necessary to continue the lease was not a compliance with the condition requiring a deposit of money.</p>

<p>Error from Franklin district court; Charles A. Smart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Title and Ownership— Unrecorded Deed — Grantee Not Estopped.. A grantee of real estate that neglects for a period of twelve-years to put his deed on record, during which time the title of' record remains in the grantor and the latter continues in possession, paying taxes in his own name and erecting lasting and. valuable improvements at his own expense, is not estopped to-assert his ownership as against creditors of the grantor subsequent to the execution of the deed, where it is not shown that, such credits were induced or extended on the basis that the: grantor was the owner of the land.</p>

<p>Appeal from Doniphan district court; William I. Stuart, judge.</p>

<p>Error from Marion district court; Oscar L. Moore, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads —Injury at Crossing — Pleading and Proof. A petition containing general averments of negligence “as hereinafter more specifically mentioned and described” presents only such issues as are found in the specific allegations.</p> <p>2. - Speed Held Not Negligence. The averment that a passenger-train was running at a rate of speed of about sixty miles an hour is not per se an allegation of negligence.</p> <p>3. Practice, District Court — Special Findings. It is error to direct the jury to find upon issues not raised by the pleadings or upon the trial.</p> <p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Finding—Defendant Not Estopped. Under the facts of this case, it is held, that the defendant did not acquiesce in an enlargement of the issues by plaintiff’s evidence, and had the right to require that no issue except that presented by the pleadings be submitted to the jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Omission of Code of Rules — Erroneous Instruction. Where, in an action to recover damages for personal injuries sustained by an employee, there is no evidence tending to show that the proximate cause of the injury was the omission on the part of the employer to adopt and promulgate a code of rules governing its employees in their conduct toward one another, or that the adoption of such rules would probably have prevented the injury, it is error to instruct the jury that it was the duty of the company to adopt and promulgate such rules.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Action for Shortage on Grain — Aet of 1893 Construed.. Section 7 of chapter 100, Laws of 1893 (Gen. Stat. 1901, §5944), providing that no defense to an action against a railway company for the recovery of loss or shortage on grain received by it for transportation by reason of the same’s having occurred on. the line of some other company to which it may have been transferred, or which may have received it for shipment, shall be admitted to be made unless all the facts and circumstances of such loss or shortage so occurring on such other line shall be fully set forth in written pleadings filed by the shipping company, and affirmatively and fully proved by it, has no application to cases against the initial carrier growing out of shipments, of grain made under contracts with it signed by the shipper, in which the carrier’s liability is limited to transportation to the-end of its own line, and delivery there to connecting carriers.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Election of Remedies. Where a partially performed contract between a company and its agent for the sale of machinery is arbitrarily and wrongfully terminated by the company, the agent has the option to sue for the breach and recover damages, or upon a quantum meruit for the worth of his services already rendered.</p> <p>2. - Company Estopped from Setting up the Contract. The' company which annulled the contract, and in effect relieved the-agent from its obligations, will not be permitted to set up the contract to defeat him in an action brought for the value of the work done.</p>

Error from Allen district court; Oscab, Foust, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>. Descents and Distributions — Will Construed. A testator whose family consisted of a wife and six minor children, two sons and four daughters, devised a farm which comprised substantially all his estate to his widow for her life, and added: “I desire that the farm at her death should go to my two sons, Louis and George; providing . . . that they pay over whatever difference there may be in the appraisement or allotment made by their mother for the benefit of my other children, said allotment to be made at the discretion of my wife. ” Held, that under the circumstances of this case the requirement of this proviso formed a condition precedent, and no title could pass to the sons under the clause quoted without an appraisement or allotment’s having been made by the mother.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads —Injury to Live Stock —Company Held Liable. In an enclosed field through which there was located and operated an unfenced railroad, a cow, rightfully in the field, passed directly upon the railroad, and was struck and killed by a car, without any fault of the employees of the railroad company in charge of the ear. At the time the general herd law was in force in the county wherein the cow was killed. Held, that the cow was not trespassing or running at large when she went upon the right of way of the railroad company; and, as she was killed because of the failure to fence the railroad as the law requires, the company is liable for the loss.</p> <p>2. -End Fences and Cattle-guards. Where a railroad passes through an enclosure it is the duty of the company not only to build fences on each side of the track, but also to complete the enclosure by building end fences and cattle-guards across the right of way where the railroad enters and leaves the enclosure.</p> <p>3. -Platting Held Not to Believe from Fencing. A portion of the enclosure on one side of the railroad was platted and lots, blocks, streets and alleys were staked out, but as no lots or blocks were sold, nor streets and alleys used as such, and as the platted portion was still used for agricultural purposes only, the platting did not relieve the company from the duty of fencing its road, nor absolve it from liability for the loss.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court —Contents of Case-made. Before-an assignment of error resting upon an examination of the evidence can be considered the record must show that all the evidence has been preserved, and while the better practice requires this to be done by a specific recital to that effect such an allegation is not essential. Other recitals embracing a continuous narrative from which it fairly appears that all the evidence has-been preserved will be held sufficient.</p> <p>2. Practice, District Court — Province of Jury. It is the province of a jury to reconcile conflicting evidence, and in so doing they may call into exercise their own experience and general knowledge.</p> <p>3. - Conflicting Testimony Reconciled by Jury. In a case where the weight of a lot of hogs was in controversy two witnesses testified differently about it, and the verdict conformed, to the estimate of neither. Held, that the fact does not present a case of a verdict not sustained by the evidence, but one where conflicting testimony has been reconciled.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court— Verdict Properly Directed by Court■ It is not error for a trial court to instruct the jury to return a verdict for the defendant where the action is founded upon a specific agreement, and the evidence of plaintiff conclusively shows that the performance of the conditions of the agreement pleaded had, by consent of both parties, been waived, and, in lieu thereof, another and different agreement had been made.</p>

<p>Error from Pratt district court; Preston B. G-illett, judge.</p>

<p>Error from Allen district court; A. H. Campbell, judge pro tern.</p>

<p>Error from Cowley district court; Carroll A. Swarts, judge.</p>

<p>Error from Cloud district court; Hugh Alexander, judge.</p>

<p>Error from Lyon district court; Dennis Madden,. judge.</p>

<p>Appeal from Wyandotte district court; J. McCabe Moore, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Procedure — Jurisdiction wpon Appeal from Police Court. A prosecution for violating a city ordinance was had in the police court of a city of the first class before an acting police judge on a verbal charge preferred by a policeman for an offense committed in his presence. The charge was entered in the docket of the police judge, with the names of the witnesses for the city, together with the judgment of the court. Held, that a transcript of the docket, certified to by the regular police judge, was sufficient to give the district court jurisdiction of the case on appeal.</p> <p>2. -Intoxicating Liquors — No Accessories in Misdemeanors. A verbal complaint in the police court of a city of the first class charged defendant with assisting in keeping a common nuisance under the prohibitory liquor law. There being no accessories in misdemeanors, proof that the accused committed the offense unaided by any other person justified a conviction.</p> <p>3. -- Reference to Place Justifiable — Verdict Held Responsive. A complaint of the kind referred to above charged that defendant assisted in committing a common nuisance in a back room on the first floor of a two-story building at No. 708 Kansas avenue. The verdict found defendant guilty of maintaining a nuisance at 708 Kansas avenue, “as claimed in this prosecution.” The particular room was described by witnesses for the city, and the court referred to it in the instructions as “the place described in the evidence.” Held, that in the absence of a written complaint the court was justified in the reference it made to the place where the offense was committed, and that the verdict was responsive to the charge.</p> <p>4. - Objection Waived — Cases Followed. A defendant arrested on view, without warrant, for a misdemeanor committed in the presence of a police officer attacked the constitutionality of section 813 of the General Statutes of 1901, authorizing such arrest, after conviction in the police court and after appeal to the district court and trial there on the merits. Held, that any objection to the legality of the arrest was waived. The eases of The State v. Blackman, 32 Kan. 615, 5 Pac. 173, and The State v. Bjorkland, 34 id. 377, 8 Pac. 391, followed.</p>

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

<p>Appeal from Elk district court; Granville P. Aikman, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Assault — Information Properly Amended. An information charging that an assault was made with “knives and clubs” was amended, by permission of the court, before the defendant pleaded, by adding “and an umbrella. ” Held, that such amendment is authorized by section 72 of the code of criminal procedure. (Gen. Stat. 1901, §5513.)</p> <p>2. Practice, District Court — Affidavit for Continuance. A statement in an affidavit for continuance that due diligence has been used to obtain the evidence is not such a showing as is required by the statute; facts must be shown, and not conclusions stated.</p> <p>3. Assault — Owe Offense Charged. An information charged that the defendant made an assault upon two named persons “with certain deadly weapons, to wit, large-bladed knives and clubs and an umbrella,” with an attempt to kill them. Held, that but one offense was thereby charged.</p> <p>4. -Motions Properly Denied. An assault committed upon two or more persons at the same time by the same act, with the same intent, constitutes but one crime, and an indictment charging such assault is not subject to a motion to quash because of duplicity, or to a motion separately to state the offenses.</p> <p>5. '-Plea in Abatement Properly Overruled. A preliminary examination was had upon a warrant charging a felonious assault upon-Bert. The information thereafter filed in the district court charged that the assault was made upon Joseph Burt. Held, that a plea in abatement because the defendant had had no preliminary examination was properly overruled.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Constitutional Law —Dependent Children — Act of 1901 Valid. Section 8 of chapter 106, Laws of 1901 (Gen. Stat. 1901, § 4205), relating to the protection of dependent children, is not in conflict with the provision of the constitution that "no bill shall contain more than one subject, which shall be clearly expressed in its title.”</p>

<p>Error from Cloud district court; Hugh Alexander, judge.</p>

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

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

<p>Error from Pottawatomie district court; Robert 0. Heizer, judge.</p>

<p>Error from Kiowa district court; Edward H. Madison, judge.</p>

<p>Error from Cowley district court; Carroll L. Swarts, judge.</p>

<p>Appeal from Cherokee district court; William B. G-lasse, judge.</p>

<p>Error from Leavenworth district court; James H. Gtllpatrick, judge.</p>

<p>Error from Douglas district court; Charles A. Smart, judge.</p>

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

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

<p>Error from Jewell district court; Richard M. Pickler, judge.</p>

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

<p>Error from Montgomery district court; Thomas J. Flannelly, judge.</p>

<p>Error from Cowley district court; James Lawrence, judge.</p>

<p>Error from Franklin district court; Charles A. Smart, judge.</p>

<p>Error from Greenwood district court; G-ranville P. Aikman, judge.</p>

<p>Appeal from Franklin district court; Charles A, Smart, judge.</p>

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

<p>Error from Marion district court; Oscar L. Moore, judge.</p>

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

<p>Error from Saline district court; Rollin R. Rees, judge.</p>

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

<p>Appeal from Wyandotte district court; J. McCabe Moore, judge.</p>

<p>Appeal from Wyandotte district court; J. MoOabe Moore, judge.</p>

<p>Appeal from Cherokee district court; William B. Glasse, judge.</p>