Volume 71 — Kansas Reports

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

<p>SYLLABUS BY THE COURT.</p> <p>Highways — Injunction—Right to Sue. A private citizen may maintain injunction to prevent the obstruction of a public highway if by reason thereof he sustains a special injury not suffered by the public. The petition in this case examined, and held, that it states a cause of action.</p>

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

Error from Lea vén worth district court; James H. Gillpatrick, judge. STATEMENT. This was a suit to foreclose a' mechanic’s lien, brought by the Western Sash and Door Company against J. C. Heiman and others, trustees of the John Saylor Memorial Methodist Episcopal Church of Linwood, and J. L. Buckner. The petition contained the following allegations: “. . .

<p>Error from Allen district court; Oscar Foust, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Executors and Administrators — Contract between Creditors of the Estate — Right of Administrator to Sue upon it. Where two creditors of an estate enter into an oral contract to pay the debts of the estate and expenses of administration, in consideration of the conveyance of certain real estate to them by the heirs, which is done, such contract becomes an asset of the estate and may be sued upon by the administrator, although neither he nor the heirs had any knowledge of it at the time it was made.</p> <p>2. Practice, District Court — Statement of Case to Jury— Variance. The statute authorizing a party upon whom rests the burden of the issues briefly to state his ease and the evidence by which he expects to support it is permissive only. He may or may not make such statement, at his own election. The issues are made not by such statements but by the pleadings. If a party elect to make such statement, and there be a substantial variance between it and his pleading, it is not a sufficient ground upon which to base a motion for judgment in favor of the opposite party, unless such statement in effect admits facts which preclude the party’s right of action or defense as stated in his pleading.</p>

<p>SYLLABUS BY THE COUET.</p> <p>Limitation op Actions — County Warrants. Where county warrants have been presented for payment, refused for want of funds, registered, numbered, and indorsed, as required by statute, and thereafter the treasurer publishes a call for such warrants, and the county pleads the call and the statute of limitation t5 an action commenced by the holder of such warrants more than six years after the publication of such call, it is held, that the answer pleads a complete defense.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutory Construction — Effect of Repeal on Pending Litigation. The repeal of a statute pending an action or legal proceeding commenced under it does not abate either. The rights of the parties thereto are preserved by subdivision 1 of section 7342, General Statutes of 1901.</p> <p>2. Receivers — Statute Construed. Under section 1302, General Statutes of 1901, before its repeal, a judgment creditor of an insolvent corporation, after the return of an execution unsatisfied, was entitled to the appointment of a receiver by application in the original action.</p>

<p>SYLLABUS BY. THE -COURT.</p> <p>1. Railroads — Non-delivery of Freight. In an action against a railroad company for the non-delivery of goods shipped over its line the burden is on the defendant to plead and prove any special agreement it may have limiting its liability as a common carrier.</p> <p>2. -Burden of Proof. Before a common carrier can claim immunity from the loss of goods delivered to it for carriage by reason of a special agreement it must show that the agreement relieved it from the wrongful acts charged in the petition.</p>

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

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

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

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

<p>Error from Sedgwick district court; Thomas C. Wilson, judge.</p>

<p>Error from Marion district court; Charles B. Graves, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highways — Injury to Traveler — Degree of Care Required, One who, knowing of a defect in a street or highway, is injured in its use is not necessarily guilty of contributory negligence precluding recovery. He may use such street or highway if in its use that degree of care and caution be exercised which an ordinarily prudent person would use in view of its defective condition.</p> <p>Traveler Not Required to Take Another Route. One 2. knowing of a defect in a street or highway over and along which he may most conveniently reach a desired destination is not required to take another and less-convenient route, at the risk of being chargeable with contributory negligence if injured in the careful use of the defective one.</p> <p>3. Damages — Interest. A judgment for damages suffered by the simple negligence of a party should not include interest as such.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Sale of Grass — Statute of Frauds. A contract for the sale of grass growing upon the land of the seller, to be cut and removed by the buyer, he to pay a stated price per acre, is one for the sale of an interest in real estate within the meaning of the statute of frauds, and cannot be enforced unless evidenced by a memorandum in writing.</p> <p>2. -Part Performance. The cutting of a portion of the grass by the purchaser at a stated expense is not a sufficient part performance to take such a contract out of the statute.</p> <p>3. -Revocation of License. So far as relates to any part of the grass not already cut the landowner may revoke the license granted by such a contract to the purchaser to enter upon the land and cut and remove the grass without incurring any liability to him for damages.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Petition—First Cause of Action Construed. A petition which in one paragraph alleges as grounds for damages the premature bringing of a former action by the defendant against the plaintiff, and that such action has been determined by the court as prematurely brought and judgment therein rendered against the plaintiff in such action for costs, and, although the time for so doing has expired, has never been appealed from or reversed, while not stating all the facts necessary to constitute a cause of action, is an evident attempt to do so. Upon the consideration of a motion to require plaintiff separately to state and number his causes of action, such paragraph should be regarded as one cause of action.</p> <p>2. - Second Cause of Action Construed. In another paragraph of such petition it is alleged that the defendant instituted a suit to enjoin the plaintiff from doing certain acts, and that said injunction suit was heard by the court and dismissed and judgment was rendered in such suit against the plaintiff for costs. This paragraph states another cause of action for damages, in which the bondsmen of the plaintiff in the injunction suit might have been joined as defendants.</p> <p>3. - Third Cause of Action Construed. A third paragraph of the petition alleges the refusal of the defendant to do certain things which, it is alleged, the defendant in a written contract agreed for a consideration to do, and that such refusal was to the injury of the plaintiff. This paragraph states a third cause of action.</p> <p>4. - Motion Properly Sustained. The court sustained a motion to require these three causes of action to be separately stated and numbered, and upon the refusal of the plaintiff to comply with this order dismissed the action. Held, not error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Agency — Real-estate Broker — Scope of his Authority. A real-estate broker or agent is one who negotiates sales of real estate. His business generally is to find a purchaser who is willing to buy on the terms fixed by the owner; that is, to bring the owner and a purchaser together. He has no implied authority to bind the principal by signing a contract of sale. Nor has he such authority to fix terms of sale, time of possession, or the covenants to be contained in the deed. Nor can he materially change the terms of sale fixed by the principal, without the latter’s consent. He is a special agent, and must pursue his instructions and act within the scope of his limited powers; and those who deal with him, if he exceed his authority, do so at their peril.</p> <p>2. -Agent’s Authority Held, a Question of Law. The authority given by the owner of the land to his agent in this case was all embodied in letters and a telegram. Not being ambiguous, what they mean is a question of law and not of fact, and this court is not hampered by the findings of fact made by the trial court as to the meaning of these writings.</p>

Error from Reno district court; Matthew P. Simpson, judge. STATEMENT. The alleged non-compliance with a contract made between N. B. Brown & Co. and the St. John Trust Company for the pasturage of cattle was the basis of an action brought by the former against the latter.

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Fraternal Insurance — Limitation of Proceeding in Error. Under section 3580 of the General Statutes of 1901 a proceeding in error to reverse a judgment against a fraternal benefit association must be commenced within sixty days after the rendition of the judgment, and if not then begun the right to review is lost and the judgment must be paid.</p>

<p>Error from Trego district court; James H. Reeder, judge.</p>

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

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

Error from Marshall district court; Sam Kimble, judge. STATEMENT. The original petition in the court below was divided into two counts, called by plaintiffs “causes of action. The first, stated briefly and in substance, is: Plaintiffs wrote to one Nova Douthitt, general live-stock agent of the Missouri Pacific Railway Company, requesting him to quote rates on a shipment of live stock from Deane Spur, Ark., to Irving, Kan.

<p>SYLLABUS BY THE COURT.</p> <p>1. Judicial Sales — Inadequate Price of Non-exempt Property —Effect on Homestead. Land occupied as a homestead by a debtor, together with two other tracts, was encumbered by a mortgage which was foreclosed, and the non-exempt property ordered to be sold first, which was done. The non-exempt land brought a price much less than its true value. A motion of the judgment debtor to set aside the sale was based on the claim that the low price at which the non-exempt land sold cast on the homestead property an unjust proportion of the judgment. Held, that, under the redemption law of 1893 (Gen. Stat. 1901, sec. 4927 et seq.), by redeeming the non-exempt property for the amount at which it sold, and converting it into money at its actual value, the difference would be available to apply to the redemption of the homestead, and that the debtor, was not prejudiced.</p> <p>2. - Value of Redemption .Right Increased. The value of a debtor’s right to redeem from a sale of his lands upon execution is increased in inverse proportion to the low price at which the property is bid in by the purchaser.</p> <p>3. -Notice of Sale Sufficient. A sheriff’s notice of sale which did not recite that lands would be sold in separate parcels held to be sufficient although the decree ordering the sale provided that the several tracts should be sold separately. (Gen. Stat. 1901, sec. 4905.)</p> <p>4. -False Return of Sheriff — Creditor Estopped and Debtor Not Prejudiced. A judgment creditor was represented at the sheriff’s sale by her attorney. The debtor’s land was bid in by a second mortgagee. The sheriff returned that the property was sold “for cash in hand.” The judgment creditor moved to confirm the sale, and on the hearing it appeared that the purchaser paid nothing but the costs. The sale was confirmed. Held, that the plaintiff, the judgment creditor, was estopped from claiming that the judgment debt was not satisfied to the extent of the bid returned by the sheriff, and that the debtor was not prejudiced.</p> <p>5. - “Public Auction" Means “Highest Bidder." A sheriff’s return that property was sold by him at public auction implies that it was disposed of to the highest bidder.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Bill of Exceptions from Justice’s Court. To enable the district court to review upon error the proceedings before a justice of the peace relating to a motion-to quash the service of a summons made by a person specially deputed for the purpose at plaintiff’s request, the summons, the motion, the affidavits used in support of the motion, an agreement of counsel respecting the facts and the justice’s ruling must all be preserved in a bill of exceptions.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mutual Hail Insurance — By-law Limiting Liability Upheld. A corporation organized under article 5 of chapter 50, General Statutes of 1901 (sec. 3546 et seq.), for the insurance of its members against injury to growing crops by hail, may make a valid by-law limiting its liability on policies thereafter written to losses occurring prior to noon of July 25, notwithstanding the provision of section 3560 that all policies issued by such corporations shall expire on the succeeding 1st of April.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highways — Notice to Trustee of the Defective Condition. To recover against a township for injuries caused by a defect in a highway the trustee must have had actual notice of the defect more than five days before the injury, but it is not necessary that such notice should have been in writing, nor that any particular formality should have attended the giving of it. Actual knowledge of the defect is the equivalent of actual notice.</p> <p>2. -Knowledge of Defect by Injured Party — Obligation Imposed Thereby. Of itself, knowledge of a defect which causes an injury will not, as a matter of law, bar a recovery by the injured person on the ground of contributory negligence. Such knowledge imposes upon him the obligation of greater care to avoid dangers — such care as an ordinarily prudent person would exercise under like circumstances.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Bond and Mortgage — “Proper Law of the Contract” May be Stipulated. The parties to a lawful bond for the payment of money may stipulate that it shall be payable in, and be governed by the laws of, a state of their choice; and if such a stipulation be made fairly, and in good faith, it is a duty of the courts of another state in which suit may be brought to recover on the bond to give effect to it.</p> <p>2. -Location of the Mortgaged Property Immaterial. The fact that, as an incident to such bond, the obligor has secured it by a mortgage upon real estate located in the foreign state, where suit is brought to enforce it, does not abrogate the stipulation, and the bond must nevertheless be interpreted by the law of the state where it is payable.</p> <p>3. -Duty of Courts of This State, Regardless of the Usury Law. The courts of this state should not refuse, on the ground of a supposed public policy, to enforce collection of sums due on a lawful bond solvable by the laws of a foreign state, and not given in evasion of the usury laws of this state, merely because, if construed by the laws of this state, the rate of interest would be higher than that allowed by the laws here.</p>

<p>SYLLABUS BY THE COUET.</p> <p>1. Practice, Supreme Court — Review of Conflicting Evidence in Certain Cases. In a suit brought in the district court by a railway company against the board of railroad commissioners to vacate an order of the board establishing a railway station, a judgment in the case will not be reversed on the ground that the court below erred in deciding disputed questions of fact.</p> <p>2. --- The Statute Held Not to Change the Practice. The direction found in section 5999 of the General Statutes of 1901 that the supreme court, in cases of the kind mentioned in the above paragraph, “shall examine the record, including the evidence, and render such judgment as shall be just and proper in the premises,” does not change the established practice which has prevailed from the beginning in this court, to the effect that a judgment of the trial court will not be reversed on a question of fact if the evidence be conflicting.</p> <p>3. -Legislative Intent Deduced from Preceding Section of Statute. A legislative intent not to change the practice by requiring this court on proceedings in error to review disputed points of fact in cases brought under section 5999, supra, may be deduced from the provisions of section 5998 of the General Statutes of 1901, which authorize any person aggrieved by the disobedience of an order of the board of railroad commissioners or the attorney-general to institute a proceeding in mandamus in this court to enforce the order, in which case conflicting evidence may be considered to the same extent as if the matters involved were submitted to a jury.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Rape — Testimony of Prosecutrix. In a prosecution for statutory rape, where the prosecutrix testified to intercourse with defendant, it was competent for her to testify that conception followed, that in due time a child was born, and that defendant was the father of the child.</p> <p>2. Practice, Supreme Court — Abuse of Discretion. How far leading- questions are essential to the ends of justice must be left largely to the sound discretion of the trial court, and, unless there has been a clear abuse of such discretion, a reviewing court may not interfere. -</p> <p>3. Rape — Proof of Age of Prosecutrix. It was competent for the prosecuting witness to testify as to her age, although her parents were present and gave testimony with respect to that fact.</p> <p>4. -Entry in Family Record Improperly Admitted. An entry in a family record of the age of a child, made by, or at the instance of, her father, is not admissible in evidence where he is alive and is a witness in the case.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Common Law — Its Prevalence in Kansas Prior to 1868. From the time of their acquisition by the United States until 1868 the common law was prevalent over the separate portions of the region from which the state of Kansas was erected, under all civilized forms of governmental organization established for them; and from 1855 until 1868 the common law, not inconsistent with the constitution of the United States, the Kansas-Nebraska act, or statute law, was the rule of action and decision, any law, custom or usage to the contrary notwithstanding.</p> <p>2. -Rights of Riparian Owners. The rules of the common law relating to the rights of riparian owners to use the water of running streams were adapted to the conditions and wants of the early settlers of the territory and state of Kansas, and no usages or customs to the contrary were recognized or established by them.</p> <p>3. - Statute of 1868 Continued Existing Law. At the time of the enactment of the statute of 1868 continuing in force the common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, the rules of the common law relating to the rights of riparian owners to use the water of running streams had become incorporated into, and were a part of, the settled jurisprudence of the state.</p> <p>4. -Not Repeatable by Local Customs. By the enactment of'the statute of 1868 the settled law of the state relating to the rights of riparian owners to use the water of running streams did not become exposed to repeal by local customs to the contrary, nor by judicial recognition of such customs.</p> <p>5. Irrigation — Statute Required to Change Established Principles. Without statutory authority this court has no power to recognize or enforce in a limited section of the state new rules of law relating to the use of the water of running streams antagonistic to established principles of law already in force throughout the entire state.</p> <p>6. - Local Ctistoms. Evidence cannot be received of local customs contrary to established principles of law.</p> <p>7. -No Right of Prior Appropriation before 1886. Prior to the statute of 1886 authorizing the acquisition of the right to use the water of running streams for irrigation purposes by appropriation, and providing that, as between appropriators, the first in time is the first in right, there had been no recognition of such a legal doctrine in this state, either by statute or by decision of this court; local customs based upon such principles were invalid, and no water-rights of the character mentioned in the Revised Statutes of the United States, sections 2339 and 2340, had either vested or accrued.</p> <p>8. -Property in Flow of Running Water — Constitutional Guaranty. By various statutes enacted since 1886 the legislature has recognized the diversion and appropriation of water for irrigation purposes to be a public use, and has allowed the right of eminent domain to be exercised in its aid; but property in the flow of running water acquired under the previously existing common-law system is protected by the fourteenth amendment to the constitution of the United States.</p> <p>9. -Dual Doctrines. The doctrine of prior appropriation may exist in the same state with the common-law doctrine of riparian rights.</p> <p>10. --Right to Use Water for Irrigation. The use of the water of a running stream for irrigation, aftpr its primary uses for quenching thirst and other domestic requirements have been subserved, is one of the common-law rights of a riparian proprietor.</p> <p>11. - Use Must be Reasonable. The use of water by a riparian proprietor for irrigation purposes must be reasonable under all the circumstances, and the right must be exercised with due regard to the equal right of every other riparian owner along the course of the stream.</p> <p>12. - Diminution of Flow■ — Damages. A diminution of the flow of water over riparian land caused by its use for irrigation purposes by upper riparian proprietors occasions no injury for which damages may be allowed unless it results in subtracting from the value of the land by interfering with the reasonable uses of the water which the landowner is able to enjoy.</p> <p>13. ■- Equality of Right. In determining the quantity of land tributary to and lying along a stream which a single . proprietor may irrigate the principle of equality of right with others should control, irrespective of the accidental matter of governmental. subdivisions of the land.</p> <p>14. -- Diversion of Water — Prescription. A lower riparian owner acquires no prescriptive right against upper proprietors to receive a given quantity of the flow of a stream by diverting and using it after it has left their land; and an upper proprietor can acquire no prescriptive right to divert water, as against owners down the stream, so long as the flow is sufficient for the needs of all.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Contributory Negligence — Judgment on Findings. Where, in an action for damages by an employee against his employer for personal injuries received in the course of the employment, the jury make special findings of fact, which, considered with the general verdict, affirmatively show that the injuries complained of would not have occurred but for the negligent act of the plaintiff, the latter cannot recover. A motion of defendant for judgment on the findings should be allowed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Judicial Sale — Liability of Purchasing Company. The purchaser of a railroad, its franchises, and property, at a judicial sale, is not liable for damages resulting from violations of the personal contracts of the judgment defendant, which was the preceding company, unless such liability has been assumed by the vendee, or provided in the decree, or created by statute.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Right of Way — Items of Damages — Special Findings. In an action for damages where, in addition to the general verdict, special questions of fact are submitted to, and are answered by, the jury relative to the amount of the several items of damages allowed, and it is apparent that the jury in answering as to one item of the damages erroneously included another item of damages of a specific, definite amount, and such error was carried into the general verdict to the same amount, it is not error for the -court to refuse to set aside such findings and to grant a new trial, but it may exclude such specific, certain item, so erroneously included in the general verdict, and award damages for the reduced amount so found; that is, it may deduct from the general verdict the amount of the evident error, if such error be specific and certain as to the amount, and be shown by other findings in the case.</p>

Error from Montgomery district court; Thomas J. Flannelly, judge. STATEMENT. The plaintiff in error brought this suit against L. H. Bowers and wife on several promissory notes and mortgages for the purpose of obtaining personal judgment on the notes and to foreclose the mortgages. In its petition the plaintiff alleged that the notes and mortgages were executed and delivered by Bowers and wife to it for a valuable consideration.

<p>SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquors — Physicians and Surgeons. Under the law of 1881 (Laws 1881, ch. 128, sec. 3) as amended by the act of 1885 (Laws 1885, ch. 149, sec. 2; Gen. Stat. 1901, sec. 2453), a physician lawfully engaged in the practice of ■ his profession may administer intoxicating liquors to a patient, if he deem it necessary to the health of such patient, and charge and receive pay therefor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Charities and Corrections — Act of 1901 Held Valid. Chapter 353, Laws of 1901 (Gen. Stat. 1901, sec. 6521 et seq.), entitled “An act relating to charities and charitable and reformatory institutions, and providing penalties for violations of the provisions of this act, and repealing all acts and parts of acts in conflict herewith,” the body of which act provides for inquests in lunacy, does not thereby contravene section 16 of article 2 of the constitution, which provides that “no bill shall contain more than one subject, which shall be clearly expressed in its title.” The procedure in inquests in lunacy provided for in the act is germane to the subject and has a natural connection therewith.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Highways — Reno County Act of 1901. Section 2 of chapter 297, Laws of 1901, which authorizes the county commissioners of Reno county to build and construct such gradings, bridges and culverts as may be necessary to make a certain county road suitable for a highway, and authorizes and empowers them to appropriate therefor a sum not exceeding $1000 in addition to the amount now authorized by law, must be construed in connection with the general law relative to the building of bridges (Gen. Stat. 1901, ch. 16), and when so construed its provisions are found to be directory, and not mandatory.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Parent and Child — Action for Death. In an action by a parent to recover for the death of his son an allegation» that the son was a strong, healthy boy, and capable of earning three dollars per week, and that by reason of his death the plaintiff had been damaged in the sum of $10,000, is sufficient to sustain a verdict.</p> <p>2. - Case Followed. The facts of the case stated, and the case of Price v. Water Co., 58 Kan. 551, 50 Pac. 450, 62 Am. St. Rep. 625, followed as to the right of recovery thereunder.</p>

<p>Appeal from Eeno district court; W. H. Lewis, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Corporations — Garnishment of Holder of Stock Pledged as Collateral. A garnishee held stock in, a corporation pledged to him by the principal defendant as security for a debt. After service of the garnishment summons the corporation sold all its property and distributed the proceeds ratably among its stockholders, the garnishee receiving eighty per cent, of the face value of the stock in his possession. Held, that the garnishee should account to the judgment creditor for the money so received by' him, less any just claim he . had against the defendant for the payment of which the stock was pledged.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Res Judicata — Judgment on One of Several Findings of Fact. Where the entry of judgment in an action involving several issues of fact recites a finding upon one of such issues that compels a judgment for the defendant, and is silent as to the rest, there is no presumption that they have been passed on, and in the absence of some further showing they will be held open to inquiry in future litigation between the same parties, based upon a different cause of action.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien — Foreclosure—Owner a Necessary Party. The owner of property against which a mechanic’s lien is sought to be enforced is an essential party to an effective foreclosure.</p> <p>2. --- Hen Based on Contract with the Owner. The basis of a mechanic’s lien is the contract with the owner of the property to be improved, who must be named in the statement of work or labor furnished upon which a lien is claimed, and a valid lien cannot be created and established unless the contract is so made and the owner so named.</p> <p>3. - Notice — Inquiry. In ascertaining who is owner, and in naming him in the statement for a lien, the claimant cannot rest alone upon the public records of title and ignore all other sources of information.</p> <p>4. - Record not Conclusive. Where property has been actually conveyed, and the grantee, who is in possession of the same, contracts for improvements, a lien cannot be established as against the grantor merely because the deed of conveyance was not recorded.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Cumulative. In a -trial before the court the ruling out of a question which has in effect already been answered cannot constitute prejudicial error.</p> <p>2. -Relevancy Must be Shown — Assignment of Error. Where the question asked of a witness, considered in connection with the other proceedings, fails to show that its answer would be relevant and material to the issues on trial, its rejection can be effectively assigned as error only where the trial court has been informed as to the nature of the testimony sought to be elicited.</p> <p>3. - Husband, and Wife — Joint Interest — Privileged Communications. The statutory prohibition against the husband or wife’s testifying concerning communications made by one to the other during the marriage is not affected by their being joint parties and jointly interested in the action, or by one’s having acted as the agent of the other.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Mortgages — Foreclosure of Second Mortgage — Tax Deed. A landowner gave two mortgages on his property, one subject to the other. The second mortgage was foreclosed and the land sold, subject to the first. The purchaser at the sheriff’s sale defaulted in the payment of taxes, and the land was sold therefor to a person who afterward took out and recorded a tax deed. After several conveyances the title of the purchaser at the sheriff’s sale vested in a corporation, which also bought in the title of the tax-deed holder. The corporation then conveyed to another corporation, which conveyed to the defendant. Held, that the latter could not set up the tax title to defeat the lien of the first mortgagee, for the reason that it was the duty of the purchaser at the sheriff’s sale to pay the taxes, and that grantees holding under his title could not derive a benefit from his default.</p>

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

<p>Error from Sedgwick district court; Thomas C. Wilson, judge.</p>

Error from Sedgwick district court; Thomas C. Wilson, judge. STATEMENT. Highbarger and wife brought this suit permanently to enjoin Milford and others from closing, or in any manner obstructing, an alleged street, called Orange avenue, in Spring Grove addition to the city of Wichita. This addition lies north of Thirteenth street, which is an open and generally traveled highway and leads west into the main part of the city of Wichita.

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

<p>Appeal from Barber district court; Preston B. Gillett, judge.</p>

<p>Appeal from Johnson district court; Winfield H. Sheldon, judge.</p>

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

Error from Johnson district court; Winfield H. Sheldon, judge. STATEMENT. The plaintiff sued to recover damages • on two causes of action, the second being based on injuries sustained by the defendant’s having deprived him of access to his property by closing an alley, and the first on injury resulting from his residence’s being permeated with cinders, smoke and gas from defendant’s locomotive-engines.

<p>SYLLABUS BY THE COURT.</p> <p>1, Railroads — Contract of Passenger Ticket. A certain railroad ticket issued by a railway company and accepted by a purchaser for transportation held not to import a contract to carry the purchaser to Lineolnville on the first train leaving Lost Springs after the purchase, but merely to indicate an undertaking to carry the purchaser to Lineolnville on a train that, according to the company’s time-card, stops at Lineolnville.</p> <p>2. -- Cases Followed. The cases of A. T. & S. F. Rid. Co. v. Gants, 38 Kan. 608, 17 Pac. 54, 5 Am. St. Rep. 780, and Lee v. Railway Co., 67 id. 402, 73 Pac. 110, approved and followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Patent-right — Vendor Must Register Letters Patent — Case Followed. The act of 1889 (Gen. Stat. 1901, secs. 4356-4358) requiring copies of letters patent and affidavits of their genuineness to be filed with the clerk of the district court is not invalid as an attempt to restrict the rights of holders of patents acquired under the federal statutes. The case of Mason v. McLeod, 57 Kan. 105, 45 Pac. 76, 41 L. R. A. 548, 57 Am. St. Rep. 327, followed.</p> <p>2. Contracts — Rescission—Offer of Restoration — Costs. Where the purchaser of a patent-right sold without a compliance with such act brings a suit to rescind the contract of sale and to recover the consideration paid, and in the petition offers to return all benefits received, and the defendant contests the rescission upon the ground that the statute is invalid, the plaintiff’s right to the relief asked and to a judgment for costs is not affected by an omission to offer to restore the patent-right before the commencement of the suit.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Expenses of Wife. When a petition is filed for a divorce and alimony, or for alimony alone, the court may make such order relative to the expenses of the suit as will insure to the wife, an efficient preparation of her case, whether she is plaintiff or defendant in the suit.</p> <p>2. - Cohabitation after Adultery — Estoppel. When plaintiff alleges and offers testimony tending to show that his wife has been guilty of adultery, and it is disclosed that after learning of her misconduct he lived and cohabited with her for more than a year, he will be deemed to have condoned the offense, and it will not constitute a ground for divorce.</p> <p>3. --- One Offense as a Bar to Another. The right to set up one matrimonial offense in bar of another is an application of the equitable rule that one who invokes the aid of a court must come into it with a clear conscience and clean hands.</p> <p>4. -Plaintiff Must be Guiltless. Divorce is a remedy for the innocent and injured, and the plaintiff who has himself broken the marriage contract cannot ask to be relieved from its obligations because his spouse may also have broken it.</p> <p>, 5. - “Equal Wrong” Means Statutory, Not Moral, Wrong. When it is shown that each party to a suit has been guilty of a matrimonial offense which the statute has made a ground for divorce they will be deemed to be in “equal wrong,” and the court may in its discretion refuse to grant a divorce, although the offenses may not be of the same character.</p>

<p>Error from Cloud district court; Sam Kimble, judge pro tern.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1 Corporations — Ancillary Receiver. A circuit court of the United States has power to appoint an ancillary receiver of assets of an insolvent corporation within its jurisdiction in aid of a primary appointment by a state court of another state. An exhibition to the federal court of the proceedings of the state court in the suit wherein the receiver was originally appointed is sufficient to authorize its action in the respect stated.</p> <p>2. Mortgages — Assignment by Operation of Law. A provision in a mortgage that it shall be non-negotiable and uneolleetable in the hands of any other person than the original mortgagee is not operative against an assignment effected by law or through an order of court.</p> <p>3. Corporations — Borrowing Stockholder’s Liability. A borrowing stockholder in a building and loan association that has become insolvent is not entitled to receive credit on his indebtedness to the association for the amounts paid in the purchase of stock, called dues.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgages — Default—Limitation—Suspension—Estoppel. A mortgage securing a series of notes due at intervals of one year provided that non-payment of any one of them together with non-payment of taxes due on the mortgaged premises should mature the entire debt. None of the notes was paid at maturity. At the date of the maturity of the first note taxes on the land were due and unpaid, and such default continued until after all the notes were due. A purchaser of the land from the mortgagor, who did not assume payment of the mortgage, then paid the taxes. Subsequently to the payment of the taxes, and more than five years from the date of the default upon the first note and taxes, the mortgagee brought suit to foreclose the mortgage. Held: (a) The statute of limitations commenced to run at the date of the default upon the first note, and taxes; (b) the running of the statute of limitations was not suspended by the payment of taxes; (c) by paying the taxes the landowner did not waive the right to plead the statute of limitations, or estop himself from so doing.</p> <p>2. - Cases Followed, and Criticized. The case of National Bank v. Peck, 8 Kan. 660, approved and followed, and the case of Douthitt v. Farrell, 60 Kan. 195, 56 Pae. 9, criticized.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Excessive Amount in Verdict — Remittitur. In an action against a city for damages for permanent injuries resulting from a defective sidewalk a verdict was rendered for the plaintiff for $7500. The trial court found that the verdict was excessive by $5000 but that the excess was not due to passion or prejudice, permitted a remittitur of that amount, and rendered judgment for $2500. The jury were not advised either by the evidence or in the instructions of any basis by which they might estimate the probable duration of plaintiff’s life. Held, that under these circumstances the error of the jury may be attributed to a mistake of judgment, free from unfair intent, and the refusal of a new trial may be sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Argument to Jury. Where, on the trial of a case in a district court, the arguments to the jury are limited to one hour on each side, and the attorney for the party on whom rests the burden of the issue announces that he desires to occupy only thirty minutes and requests the court to inform him when the time has expired, which the court does, and he ceases without request for further time, and thereupon the attorney for the opposing party asks that the ease be submitted without further argument, it is prejudicial error to permit another attorney to address the jury in behalf of the first party.</p>

Error from Franklin district court; W. B. Pleasant, judge pro tem. STATEMENT. Action of ejectment by H. O. Bird and R. E. Bird to recover from J. H. Whetstone five acres of land in Franklin county.

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

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Correction of Verdict. In an action on an appeal bond given in a forcible-detention ease the court instructed the jury that the only issue was the rental value of the property detained between two certain dates, the amount thereof to be doubled by the jury, and interest thereon to be added for a time specified, with the costs of the forcible-detention action, shown by the evidence to be a sum certain. It was apparent from the verdict that the jury erred in calculating interest, allowing nine dollars too much. Held, that the court did not err in entering judgment for an amount less the excess.</p>

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Statement to the Jury. It is not indispensable that the preliminary statement of the plaintiff’s case to the jury shall include all the facts essential to recovery. The facts referred to in the statement need not be stated with exactness, and the court is not authorized to take the case from the jury or to render judgment upon the statement unless some fact be clearly stated or some admission be clearly made which evidence relevant under the pleadings cannot cure, and which, therefore, necessarily and absolutely precludes recovery.</p> <p>2. Contracts — Implied. A party not at fault himself may recover in quantum meruit for advancements that he has made upon the faith of a contract which is unenforceable under the statute of frauds, and which the other party refuses to perform.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mortgages — Foreclosure—Effect on Easement. The owner of a tract of mortgaged land granted to the owner of a system of water-works, by a written contract in which no reference was made to the mortgage, the right to maintain a dam thereon for twenty-one years in consideration of an agreement to furnish water for use upon other premises during the time the contract should continue in force. Afterward the mortgage was foreclosed, and by order of the court the land was first sold subject to the easement so granted, and this sale not realizing the amount of the mortgage debt the easement itself was then sold to the purchaser of the land. Held, that the rights of the owner of the water-works to maintain the dam in virtue of the contract were cut off by such sale, and that the obligation thereunder to furnish water ceased at the same time.</p>

<p>Error from Wilson district court; Leander Still-well, judge.</p>

Error from Sumner district court; Carroll L. Swarts, judge. STATEMENT. Action brought by the Hunter Brothers Milling Company to recover from Kramer Brothers $900 as damages for failure to deliver bran purchased from the defendants and paid for by the plaintiff.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Review of Order Overruling a Demurrer. The defendant in a civil aetion has a right to a review of an order overruling his demurrer to the plaintiff’s reply on a transcript of the record, without bringing up the evidence produced at the trial, if the record do not show affirmatively that the error was cured.</p> <p>2. -Record not Overcome by Presumptions. This court will not presume, in such a case, that the district court admitted evidence outside of the issues made by the pleadings in-order to avoid the effect of prejudicial error shown to have been committed in ruling on the sufficiency of the pleadings.</p> <p>3. Conveyances — Suit for purchase-money, and Foreclosure■— Counter-claim. A purchaser of land conveyed to him by a deed containing full covenants of warranty who retains a portion of the purchase-money as security against a lien upon the land claimed by a third party in a pending suit against the vendor has the right to protect his interests by purchasing the land at a sheriff’s sale made pursuant to a judgment in such suit enforcing the lien, which the vendor neglects to supersede; and in a subsequent suit by the vendor against the purchaser for the balance of the purchase-money the latter may counter-claim for the damages occasioned by the breach of the covenants in his deed notwithstanding the judgment enforcing the lien has, in the meantime, been reversed and the lien held to be unenforceable.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Justice of the Peace — Judicial Acts — Collateral Attack. The judicial acts of one duly elected and acting as a justice of the peace are not open to collateral attack because he had prior to that time accepted the office of city attorney, and was also acting in that capacity.</p> <p>2. Criminal Law — Robbery—Conviction of a Lower Offense. Upon an information charging robbery the accused may be convicted of the offense of pocket-picking, or stealing from the person.</p> <p>3. •-Information Sufficient. Where an information sufficiently alleged the offense of which the defendant was convicted he has no reason to complain that it did' not fully charge a higher offense of which he was not convicted.</p>

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

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

Original proceeding in mandamus. STATEMENT. This is an original proceeding in mandamus, brought by the state of Kansas upon the relation of Mayo Thomas, as county attorney of Montgomery county, to compel the Honorable George R. Snelling, as judge of the court of Coffeyville, in Montgomery county, to issue warrants for the arrest of John Doe and sixteen other men whose names were unknown, charged with the misdemeanor of wilfully and criminally obstructing a public highway of…

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

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. The plaintiff brought replevin to recover certain intoxicating liquors alleged to have been wrongfully taken from his possession and detained by the defendant. There was no redelivery bond given and the property remained in the possession of the plaintiff.

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Improperly Kept Road-bed — Injury to Employee. Evidence that the road-bed of a railway company at a point within its station grounds was made up in part of rubbish and sweepings from the depot, and that the rainfall from the roof of the depot was permitted to flow and remain upon the track at this place, and that in consequence of such character of the soil and of such discharge of water thereon it afforded a brakeman so insecure a foothold while he was engaged in making a coupling that he slipped and was injured, tends to sustain a charge that his injury was due to the negligence of the company in failing to keep its road-bed in a reasonably safe condition for the performance of his duties.</p> <p>2. - Question for a Jury. It cannot be said as a matter of law that a brakeman, under the circumstances stated, knew or ought to have known of the dangerous condition of the road-bed.</p>

<p>SYLLABUS BY THE COUKT.</p> <p>1. Damages — I-Iusband May Recover for Wife’s Death. The surviving husband is, within the meaning of section 422 of the code, next of kin of his wife, and entitled to recover damages for her wrongful death.</p> <p>2. Railroads — Duty to Restore Highway. It is the duty of a railroad company in constructing its road across a highway to restore the same to its former state, or to such a state as not necessarily to impair its usefulness. It may not be possible to restore the highway to. its exact original condition, but it should be restored to its former state as far as it is practicable to do so, and so as not substantially to endanger or impair its usefulness as a highway.</p> <p>3. -Instruction Not Misleading. An instruction to the effect that it is the duty of the company to restore a highway, “as near as it was possible to do so, to its original condition” is not misleading when considered with other portions of the same instruction defining the duty of the company.</p> <p>4. -Exemplary Damages Not Allowable. The right of action for wrongfully causing death, given by section 422 of the code, is for the pecuniary loss sustained by the relatives of the deceased, and exemplary damages may not be allowed.</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 Decatur district court; Abel C. T. Geiger, judge.</p>

Error from Crawford district court; Walter L. Simons, judge. STATEMENT. This was a proceeding begun originally in the probate court to establish a claim in favor of plaintiff in error against the estate of her son, Harry H. Lusk.

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Insolvency — Preferred Creditor. The mere fact that an insolvent debtor pays one creditor in full is not of itself evidence of an intention on his part to hinder, delay or defraud other creditors, within the meaning of clause e of section 67 of the national bankruptcy act of 1898, providing for the avoidance of transfers made with such purpose.</p>

<p>Error from Graham district court; Charles W. Smith, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Sale of Land. A written instrument certifying that the owner of a tract of land has agreed to convey it to' a person named for a stipulated price, and containing a statement that “it is further noted” that such person is to pay such price, the time of conveyance and payment being fixed, when properly executed constitutes a mutually binding contract for the sale and purchase of such land.</p> <p>2. - Acceptance by Purchaser — Omission to Sign. Where the person named in such a contract as the purchaser accepts and acts upon it this is equivalent to its execution by him, and his omission to sign it is immaterial.</p> <p>3. - Demurrer Improperly Sustained. The record examined and held not to justify the sustaining of a demurrer to the evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Joinder of Actions. Under section 83 of the code of civil procedure (Gen. Stat. 1901, sec. 4517), where several causes of action are joined they must all belong to one class and must affect all the parties, except in suits of foreclosure.</p> <p>2. -Petition and Demurrer. Where a trial court, in sustaining a demurrer to a petition on the ground that it fails to state facts sufficient to constitute a cause of action, specifically bases the order upon the ruling that the causes of action are barred by the statute of limitations, and the petition does not show that fact, the judgment will be reversed.</p>

Error from Cowley district court; Carroll L. Swarts, judge. STATEMENT. Elsie D. Bontz, doing business as the Hutchinson Feed and Grain Company, was erecting an elevator in the city of Hutchinson. The contract for its construction had been let to one W. W. Lockwood, who was proceeding with the work.

<p>SYLLABUS BY THE COURT.</p> <p>Wills- — Contest of Probate — Limitation of Action. The time limited by the statute of wills for bringing a suit in the district court to contest a will is not extended by section 23 of the code of civil procedure (Gen. Stat. 1901, sec. 4451), providing that if any action be commenced within due time and judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.</p>

<p>Error from Allen district court; Oscar Foust, judge.</p>

Error from Nemaha district court; William I. Stuart, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>1. Conveyances — Description in Deed — Construction. A description in a deed of an acre or other definite quantity of land in the corner of a particular tract will ordinarily be held to mean a square acre in such corner, but if other parts of the description show that a particular parcel less in quantity and different in form was intended to be described the quantity mentioned will not control.</p> <p>2. -Exception in a Deed. Where a deed conveying land contained an exception of an acre- previously conveyed to another out of the northwest corner of the tract mentioned, and it appeared that the part conveyed to such other was fenced, and although usually referred to as an acre was only three-fifths of an acre, the exception will be deemed to cover the part actually conveyed to such other rather than a full, square acre out of the corner of the tract.</p> <p>3. - Latent Ambiguity — Parol Evidence. Where there is a latent ambiguity in the description of the land conveyed by deed parol evidence may be received, not to contradict the instrument but to explain the ambiguity, and to that end testimony as to the situation and condition of the land conveyed, the circumsances under which the conveyance was made and the practical construction put upon the conveyance by the parties may be admitted. . ■</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Infected Cattle — Importation—Prescribed Rules Exclusive. Cattle driven into Kansas for immediate slaughter from any point south of its south line, and carrying Southern ticks, are deemed by statute to be infected with, and capable of communicating, Texas, splenic or Spanish fever, and such animals cannot be so transported into the state in the absence of rules regulating their admission, to be prescribed by the live-stock sanitary commission.</p> <p>2. Railroads — Nuisance—Injunction by State. A railway company that maintains a lane or passageway for the driving of infected cattle from the Indian Territory into this state, under circumstances mentioned in the first paragraph of this syllabus, may be enjoined in a suit brought by the state to abate a public nuisance.</p> <p>3. - Statute Construed. Sections 7451 and 7452 of the General Statutes of 1901 construed and applied.</p>

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

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

<p>Error from Smith district court; Richard M. PickLER, judge.</p>

<p>Error from Stafford district court; Jermain W. BRINCKERHOFF, judge.</p>

<p>Error from Edwards district court; Charles E. Lobdell, judge.</p>

<p>Error from Wichita district court; Charles E. Lobdell, judge.</p>

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

Error from Lyon district court; Charles A. Smart, judge, pro tern. STATEMENT. The defendant in error, J. F. Kenney, was the owner of a second mortgage on an undivided half-interest in real estate the title to which is the cause of the present controversy. On November 18, 1899, he brought suit to foreclose his lien and made parties defendant the holder of the first mortgage, which covered all the property, and the holders of all other interests as shown by the record.

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Held not Merely Cumulative. The testimony of a surgeon that in the progress of an operation involving the opening of the abdomen of a patient he found an intestine ruptured is not merely cumulative to that of a physician that upon an external examination he concluded that such a rupture probably existed.</p> <p>2. -New Trial — Newly Discovered Evidence. Upon the hearing of a motion for a new trial upon the ground of newly discovered evidence the inquiry is not limited to matters known to the applicant or within his contemplation when the motion was filed, but may include as well any that have been developed since that time.</p>

Error from Reno district court; H. Fierce, judge pro tem. STATEMENT. This was a suit to determine the interests and rights of the parties herein to a tract of land in Reno county.

<p>SYLLABUS BY THE COURT.</p> <p>Evidence — Constitutional Guaranty — Transcript Incompetent. The constitution guarantees to every accused person the right of meeting face to face the witnesses of the state, and, hence, to read to the jury, over the objection of the defendant, a transcript of the testimony of a witness given in a civil proceeding is error.</p>

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

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. This action was commenced in the district court of Shawnee county by the Parlin & Orendorff Company, a corporation organized under the laws of the state of Illinois, on notes executed and delivered to it at Rocky Ford, Colo., by Dye & Elliott, of which firm the defendant Elliott was a member.

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Petition in Error. In a proceeding in error in this court to vacate a judgment of the district court the petition in error must set forth the errors complained of, as directed by section 544 of the civil code (Gen. Stat. 1901, sec. 5028), and none other will be considered.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Misconduct of Jury — Presumption. Where articles discussing the merits of a case are shown to have been published during the trial in newspapers of general circulation in the community it cannot be presumed upon review, against the finding of the trial court, that they were read by the jury, there being no direct evidence to that effect.</p> <p>2. Jury and Jurors — New Trial — Reading Newspaper Comment. To support an application for a new trial upon the ground of the misconduct of jurors it is not sufficient to show that during the trial they read newspaper comments relating to the case, without showing also that the comments were of such a character that they might have resulted in prejudice to the losing party.</p> <p>3. - Separation of Jury in Civil Case — Admonition. Where the jury upon the submission of a civil case are told that if they have not reached an agreement within half an hour they may then separate for a definite period, and at the same time are given the statutory admonition with regard to their conduct during such separation, it is not necessary that the admonition be repeated before the separation actually takes place.</p> <p>4. - Consent of Counsel to Separation — Estoppel. Where upon the submission of a civil case the jury are instructed regarding their duties during any separation that may take place before their deliberations are concluded, and the attorneys for both parties afterward assent to a proposal made by the court that the jury be permitted to separate for a definite time, the proposal being made under such circumstances and stated in such terms that the court is justified in understanding that the attorneys consent to the jury’s being dismissed by the bailiff, in the absence of the judge, the objection that the jury were not given an additional admonition before such separation is not available on review.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Contracts — Optional and Unilateral — Validity. A written contract, by the terms of which M. undertakes to pay Q. a sum of money at a stated time in consideration of the conveyance by Q. and her husband of certain real estate to the Amusement Syndicate Company, subject to a lease and to a note and mortgage, “the same being a first lien upon the property conveyed, the Amusement Syndicate Company assuming and agreeing to pay the same,” is not, on its face, an unenforceable contract.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Death by Wrongful Act — Damages—Distribution. Damages recovered on' account of a wrongful act committed in the state of Iowa, resulting in the death of a resident of Kansas, are to be disposed of according to the statute of the state of Iowa relating to that subject.</p> <p>2. - Law of the Domicil. The statute of the state of Iowa which provides that when a wrongful act produces death damages recovered therefor shall be disposed of as personal property belonging to the estate of the deceased leaves damages of the character referred to in paragraph 1 of this syllabus to be disposed of according to the law of the domicil of the deceased.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Shipment of Cattle — -Implied Authority of Agent. The fact that a person is in the immediate charge of cattle at the time they are delivered to a carrier, and while they are in transit, is not conclusive evidence that he is authorized to sign the owner’s name to a contract of shipment, nor is the carrier justified in assuming that he has such authority, where an oral contract for the shipment has already been made with the owner.</p> <p>2. -Negligent Delay — Damages—Evidence. Where damages are claimed from a carrier on account of weight unnecessarily lost by cattle in transit, occasioned by a negligent delay, and the exact weight at the beginning and at the end of the journey cannot be shown, it is not error to permit persons experienced in such matters to give their opinion of the loss ordinarily resulting under such circumstances, as well as of the loss in similar cases where no delay occurs.</p>

Error from Wyandotte court of common pleas; William G. Holt, judge. STATEMENT. The plaintiff in error owned a smelting plant at Argentine, and maintained in connection with the plant a structure about 250 feet in length, east and west, consisting of one brick and one stone wall, extending the'length of the structure, about twelve feet apart and about fourteen feet high. The south wall rested against a bank of earth for all, or nearly all, its height.

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>1. Highways — Prosecution for Obstructing — Evidence. Where the state, in a criminal prosecution for the wilful obstruction of a public highway, relies upon a claim that the road was established by proceedings under the statute, it has the burden of showing either thát the owner of the land affected was given personal notice of the meeting of the viewers or that conditions existed rendering such notice unnecessary.</p> <p>2. -Acts Sufficient to Prevent Prescriptive Right’s Attaching. The maintenance of a fence across a traveled road by the owner of the land is a sufficient assertion of his rights to prevent its becoming a public highway by prescription or limitation, notwithstanding the existence of a gate at the point of crossing.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Evidence — Ejectment—Transactions with Deceased Persons.Where the defendant in an action in ejectment claims title through an executor’s sale of a deceased’s real estate he is not the assignee of such deceased person within the meaning of section 4770 of the General Statutes of 1901, and the plaintiffs, although they claim title immediately from such deceased person, are not incompetent under the provisions of that section of the statute to testify to transactions or conversations had with the deceased concerning the subject-matter of the action.</p>

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

Error from Kingman district court; Preston B. Gillett, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Forged Entry of Appearance — Jurisdiction. A decree of divorce granted upon a forged entry of appearance, and without jurisdiction of the defendant, is a nullity and binds no one.</p> <p>2, - Void Judgment — Not Validated. Where the defendant afterward appears and moves the court to set aside the void judgment, but subsequently consents that her motion may be dismissed, which is done, the dismissal will not operate to validate the judgment of divorce nor to sever the marriage relation.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Sounding of Whistles■ — Frightening Horses. A railroad company is not liable for injuries occasioned to a traveler by reason of his team becoming frightened on a highway running parallel with and close to a railroad from the sounding of a whistle on a passing train, where it appears that it occurred at a place remote from a crossing, that the signal was given in the usual way, for a lawful purpose incidental to the operation of the railroad, and also that the engineer had no knowledge of the presence of the traveler and his team at or before the time the signal was given.</p>

Error from Sumner district court; Carroll L. Swarts, judge. STATEMENT. On the 5th of September, 1898, Kettering & Sons were indebted to the Parkhurst-Davis Mercantile Company in the sum of $249.71 and had on deposit in the plaintiff bank sufficient funds to pay this sum. On that day they drew their cheek on plaintiff for that amount and delivered it to one F. H. Teale, a salesman of the mercantile company.

<p>SYLLABUS BY THE COURT.</p> <p>Title and Ownership — Suit to Quiet Title — Pleading in Equity. Equity permits a suit for discovery and relief; therefore, where the petition in a suit in equity to remove a cloud and quiet title to real estate is sufficient, except that it does not plead the title under which defendants claim, but states that the nature, character or extent of it is unknown, and prays that defendants be required to disclose such title in their answer, the petition states a good cause of action for discovery and relief.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Party Wall — Covenant Running with the Land. A contract made between the respective owners of adjoining lots, expressed to be binding upon their heirs and assigns, providing that the wall of a building one of them is about to erect shall be placed upon the dividing line, and that when the other builds he shall use it as a party wall and pay him half its value, in effect creates covenants running with the land of each party; and where after such first building is erected conveyances are made of each lot, the subsequent owner of the vacant lot who builds thereon and makes use of the party wall is required to make payment therefor to the owner of the lot first built upon.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Replevin — Proper Parties Defendant. If an action in replevin is properly brought in a county where the property is wrongfully held by an agent, who is made a party defendant and is properly summoned, a summons may issue and service be had in another county upon the agent’s principal, who claims the right to the possession of the property as against the plaintiff.</p>

<p>Error from Woodson district court; Oscar Foust, judge.</p>

Error from Lyon district court; Dennis Madden, judge. STATEMENT. On the 1st day of April, 1891, one Vansickle, with his wife, owned the northwest quarter of the southeast quarter of section 32, township 20, range 12, in Lyon county, Kansas, and on that day they executed a mortgage thereon to secure a promissory note for $400, due five years after date, with interest at ten per cent, per annum.

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Misjoinder — Objection Waived. The plaintiffs brought an action on a policy of insurance covering personal and real property. It was disclosed on .the trial that one of them had no interest in the personal property, and the other no interest in the real estate. It also appeared that the insurance company was informed of these facts before the action was begun. After the evidence had all been introduced the defendant requested permission to amend its answer and plead the misjoinder of the parties plaintiff, which was refused. Held, that under the circumstances the court did not abuse its discretion.</p>

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

Original proceeding in quo tuarranto. STATEMENT. This is an original proceeding in quo warranto, instituted in this court by the state on relation of the attorney-general, to oust the Kansas Natural-gas Company, a corporation organized under the laws of the state of Delaware, from the exercise of corporate franchises in this state.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Homicide — Jurors—Order of Challenges — Correction of Errors. If in a criminal case, for the purpose of correcting errors in overruling challenges to jurors for cause, the district court, after the jurors have been challenged peremptorily, allows the peremptory challenges to stand as challenges for cause, and allows the defendant other peremptory challenges in their stead, which he duly exercises, the departure from the prescribed order does not constitute misconduct in law, and substantial prejudice in fact to the defendant’s rights must appear to warrant the granting of a new trial.</p> <p>2. -Dying Declaration Properly Admitted. Under the facts of this ease, the ante-mortem statement of the victim of the homicide was properly admitted as a dying declaration.</p>

<p>Appeal from Ellsworth district court; Rollin R. Rees, judge.</p>

Original proceeding in mandamus. STATEMENT. This proceeding was instituted in this court by the state, on the relation of the attorney-general, for a peremptory writ of mandamus to compel Thomas T. Kelly, as state treasurer, and E. B. Jewett, as warden of the state penitentiary, to execute, negotiate and sell certain bonds on behalf of the state of Kansas and apply the proceeds as directed by senate bill No. 30 (Laws 1905, ch. 478).

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

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

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

<p>Error from Marion district court; J. T. Dickerson, judge.</p>

<p>Error from Allen district court; Travis Morse, judge pro tern.</p>

<p>Error from Russell district court; James H. Reeder, judge.</p>

<p>Error from Greenwood district court; Granville P. Aikman, judge.</p>

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

<p>Error from Woodson district court; Oscar Foust, judge.</p>

<p>Error from Russell district court; James H. Reeder, judge.</p>

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

<p>Error from Lane district court; CHARLES E. LOB-dell, judge.</p>

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

<p>Error from Jackson district court; Cyrus F. HurREL, judge.</p>

<p>Error from Sherman district court; Charles W. Smith, judge.</p>

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

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

<p>Appeal from Wilson district court; Leander Still-well, judge.</p>

<p>Appeal from Phillips district court; Abel C. T. Geiger, judge.</p>

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

<p>Appeal from Johnson district court; Winfield H. Sheldon, judge.</p>

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

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

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

<p>Appeal from Shawnee district court; Z. T. Hazen, 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 Greeley district court; Charles E. Lob-dell, judge.</p>

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

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

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

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

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

<p>Error from Thomas district court; Charles W. Smith, judge.</p>

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

<p>Error from Linn district court; WALTER L. SIMONS, judge.</p>

<p>Error from Sumner district court; CARROLL L. Swarts, judge.</p>

<p>Error from Wyandotte district court; J. McCabe Moore, judge.</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>Error from Cloud district court; Hugh Alexander, judge.</p>

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

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

<p>Error from Chautauqua district court; Granville P. Aikman, judge.</p>

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

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

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

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

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

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

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

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

<p>Error from Meáde district court; EDWARD H. MADISON, judge.</p>

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

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

<p>Error from Woodson district court; Oscar Foust, judge.</p>

<p>Appeal from Allen district court; OSCAR FOUST, judge.</p>