Volume 73 — Kansas Reports

Error from Phillips . district court; Abel C. T. Geiger, judge. STATEMENT.

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

<p>Error from Haskell district court; WILLIAM Easton Hutchison, judge.</p>

Original proceeding in mandamus. STATEMENT. This is an original proceeding in which the plaintiff seeks a peremptory writ of mandamus to compel the defendant, the board of education of the city of Coffeyville, to admit his daughter, Eva Cartwright, to the sixth grade of the public schools of that city and to the room and class taught by the white teacher, E. E. Werner.

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Testing Sufficiency of a Pleading. A motion to strike a pleading from the files is not an appropriate method of testing its sufficiency.</p> <p>2. -Petition — Amendment — Motion to Strike from the Files. Such a motion may be used to eliminate an amended pleading which is a mere repetition of one held defective on demurrer, but where leave has been granted to amend a petition, and an amendment is made which sets forth additional facts, as well as a fuller and more explicit statement of the facts alleged in the original petition, and the amendment is apparently made in a bona fide' effort to state a cause of action and meet the objections made to the original petition, a motion to strike the amended petition from the files because of sameness to the original petition will not lie.</p>

Error from Clay district court; Sam Kimble, judge. STATEMENT. This is a proceeding in error to reverse a judgment rendered against the plaintiff in error as defendant in an action for damages for the breach of a parol agreement to convey certain land, consisting of a farm in Clay county.

<p>Error from Shawnee district court; Alston W. Dana, judge.</p>

<p>Error from Barton district court; Jermain W. Brinckerhoff, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Guardian and Ward — Notice of Application to Sell Real Estate. The notice required by the statute to be given to a ward of the hearing of his guardian’s application for leave to sell his real estate is jurisdictional, and a deed made without such notice’s having been given is void, and subject to collateral attack.</p> <p>2. Practice, Supreme Court — Confirmation of Guardian’s Sale ( —Presumption as to Notice. Where the record shows the giving of a notice to a ward of the hearing of his guardian’s application for leave to sell his real estate, and such notice is for any reason unavailing, it cannot be presumed from the fact that the sale was confirmed by the probate court that any other notice was given.</p> <p>3. Guardian and Ward — Petition—Statutory Conditions — Validity of Deed,. A guardian’s deed will not be held void upon a collateral attack merely because the petition of the guardian for leave to sell his ward’s real estate does not affirmatively show the existence of the conditions which under the statute authorize such sale.</p> <p>4. -Report of Appraisers — Construction. An ambiguous report of appraisers, made in the course of proceedings upon which a guardian’s deed is based, will if possible be given, a construction that will uphold the deed.</p>

Error from Allen district court; OSCAR FOUST, judge. STATEMENT. Plaintiffs in error brought suit in the district court of Allen county to restrain the defendant from erecting a powder-house for the purpose of storing a large amount of explosives on land of its own adjoining plaintiffs’ premises, not far removed from plaintiffs’ buildings, and close to a public highway alleged to be frequently traveled by plaintiffs and their family and the public generally.

Error from Barton district court; Jermain- W. Brinckerhoff, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>1. Agency — Sale of Real Estate — Commission. An owner of real estate who desires to sell the same and who employs an agent to procure- a purchaser therefor, at a price stated and upon terms to be thereafter mutually agreed to by such owner and purchaser, is liable to such agent for a commission when the latter produces a buyer who agrees with the owner to-take the land at the price and upon the terms fixed by such owner, and is ready, willing and able to carry out the contract, whether a sal¿ is actually made or not.</p> <p>2. --- Petition Held Sufficient. The amended petition in this case examined and found sufficient.</p>

<p>SYLLABUS BY THE COURT:</p> <p>Foreign Corporation — Not Authorized to do Business — Pleading. The defense that a foreign corporation has not been granted authority to- carry on business within the state is not raised by a general denial, but must be specially pleaded.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Briefs. A compliance with rule 10 of this court is necessary to the proper consideration of many questions presented for decision, and cases may be affirmed where this rule is not followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurisdiction — District Judge — Dissolution of a, Restraining Order. A district judge at chambers has power to dissolve a restraining order granted by a probate judge under the provisions of section 239 of the civil code. (Gen. Stat. 1901, § 4686.)</p> <p>2. Railroads — Appropriation of Land — Temporary Injunction. A showing- by the plaintiff that a railway company, which was taking steps toward the building of a switch for a public use in a city, had made a survey across plaintiff’s ground, and that if the switch were built it would greatly injure plaintiff, did not require the allowance of á temporary injunction by the district judge, since it did not appear that the railway company intended to take possession of or to appropriate the ground illegally, or otherwise than by purchase or condemnation.</p> <p>3. Injunction — Apprehension or Possibility of Injury Will Not Warrant It. Mere apprehension or a possibility of wrong and injury by a defendant is ordinarily not enough to warrant the granting of an injunction, but there should be at least a probability of wrongful action and irreparable injury before a court is required to enjoin the action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Ejectment and Partition — Statement by Counsel — Withdrawal of Defense of Ownership from the Jury. It is only where a statement or admission made to a jury will, as a matter of law, preclude a party from recovering upon his cause or defense that a court has authority to withdraw such cause or defense from the jury. Held, in this case, that the statement and admissions of the plaintiffs in error did not as a matter of law preclude them from recovering upon their defense of ownership.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgment — On the Sustaining of a Demurrer — Final Determination. A judgment for the defendant upon the sustaining of a demurrer, to a petition is a final determination of the action, and until such judgment is set aside no further proceedings can be had therein looking to a trial of the issues between the parties.</p> <p>2. -Power to Set Aside. After, the expiration of the term at which a judgment is rendered the court has no power to set it aside because of its being based on an erroneous ruling.</p> <p>3. Practice, District Court — Amendment of the Record. Where a demurrer which attacks a petition up on several grounds is sustained upon one of them, and a judgment for defendant is thereupon rendered, but the record then made shows only that the demurrer was sustained, without indicating upon what ground, the court may at a subsequent term cause the record to be amended so as to state upon what ground the demurrer was sustained, provided the fact be established by clear and satisfactory proof, which need not, however, be founded upon any record, memorandum or other writing.</p> <p>4. - Separate Petitions Not to be Filed after Final Judgment on Sustaining Demurrer for Misjoinder. A demurrer was filed to a petition on several grounds, including misjoinder and want of facts, and a record was made showing that the demurrer was sustained but not indicating upon what ground; a judgment for defendant was rendered which was affirmed by this court for the reason that the petition . contained two causes of action which were improperly joined; at a subsequent term of the district court the plaintiff asked that the record be amended to show that the demurrer was in fact sustained upon the sole ground that the petition failed to state facts sufficient to constitute a cause of action, and also that he be permitted to file separate petitions and proceed with the prosecution of the two causes. Held, that while the plaintiff was entitled to have the record amended so as to show the fact in regard to the ruling actually made, the court had no power to permit the filing of separate petitions.</p>

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

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

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

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

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

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

Error from Lyon district court; Frederick A. Meckel, judge. STATEMENT. The official returns disclosed that G. F. Arnold was elected to the office of county commissioner from the second commissioner district of Lyon county over his opponent, E. Moorhead. .

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment — Partial Recovery — Costs—Denial of. Plaintiff’s Right Need Not be Alleged. Where a petition in ejectment alleges a full title,' and the answer includes a general denial, coupled with the statement that the defendant owns only a fractional interest in the property and has no information regarding the ownership of the remainder, the plaintiff, upon proof of partial title, is entitled to a proportionate recovery and to a judgment for his costs, such a case not being within the contemplation of the code provision requiring a tenant in common in suing a cotenant for the possession of real estate to allege that the defendant has denied his right.</p> <p>2. - Sufficiency of the Evidence. The evidence examined and held not to support the judgment.</p> <p>3. Tenancy in Common — Payment of Taxes by a Cotenant — Lien. The owner of an undivided interest in real estate who is not in receipt of any income from it, and who has not ousted his cotenant, is entitled upon paying taxes on the entire property to a lien for the amount paid in excess of his proper proportion, which may be enforced against his cotenant’s grantee who takes title by a quitclaim deed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Privileged Communication — Requisite. In order for a communication from a .client to his attorney to be confidential and to impose upon the attorney the duty of not disclosing the same it must be of a confidential character, and so regarded, at least by the client, at the time, and must relate to a matter which is in its nature private and properly the subject of confidential disclosure.</p> <p>2. -Attorney and Client — Publication of ■ Communication by Client. An answer which has been prepared for the purpose of being filed by or on behalf of the client, and which has been read by the notary, with the consent of the client, and the substance of which has been given by the client to a newspaper reporter and published, and which answer has been shown by the client to, and — with client’s consent— read by, an attorney appearing against said client in the proceeding in which it was to be filed, and the substance of which answer has been incorporated into a petition by the client against his attorney and filed in another action, is not such a confidential communication.</p> <p>3. Attorneys — Disbarment Proceeding — Limitation of Action. While there is no statute of limitations which is technically applicable to a disbarment proceeding, yet where the alleged misconduct set forth in a charge is shown .to have occurred more than thirteen years before the charge is filed in this court, and it appears that proceedings to investigate the occurrence were 'instituted soon thereafter and proceeded so far that an accusation was prepared and the accused made known his defense thereto, and that thereupon the district court having jurisdiction, and the members of the bar thereof, dropped further proceedings, and thereafter the judge of that court and the members of the bar recognized the accused professionally and socially, this court will not consider such charge. It is at least stale.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroad Commissioners — Jurisdiction Does Not Extend to Electric Railroads. In giving the board of railroad commissioners supervision over railroads operated by steam the statute by implication denies them power over railroads operated only by electricity.</p> <p>2. -Statutory Definition of “Railroad Company” — Road Operated by Steam. In defining the term “railroad company” as used in the railroad commissioners law (Gen. Stat. 1901, § 5997) to mean a company whose road is operated by steam, the statute forbids such term’s being construed to include a company owning a road operated only by electricity, except where such intention may be expressly manifested.</p> <p>3. -Determination of Applications for Permission to Cross Tracks of Other Roads. The section of the statute which gives the board of railroad commissioners authority to hear and determine the application of a railroad company for permission to cross its track “with any other railroad upon the grounds of such other railway corporation” (Gen. Stat. 1901, § 5974) does not apply to a case where a railroad company seeks to cross the track of a railway company whose line is operated entirely by electricity.</p> <p>4. -Electric Railroad — Permission ' to Use Steam — Jurisdiction of Commissioners. A line of railway which is so constructed as to be operated only by electricity, and which is in fact so operated, is not a railroad operated by steám within the meaning of the railroad commissioners law, even although it is owned and managed by a corporation whose charter permits the use of steam as a motive power.</p> <p>5. -Application by Steam Railroad to Cross Electric Railroad. The board of railroad commissioners has no jurisdiction to entertain an application by a railroad company for leave to cross its track with that of a railway company using only electricity as a motive power.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Action on a Lost Note — Deceased Maker — Proof of Plaintiff’s Financial Condition. In an action upon a note for a large amount purporting to have been given by one since deceased, where the plaintiff claimed that the note was accidentally destroyed or lost but that it represented a bona fide loan of money by her to the deceased, and the claim for the defendant was that no note was in fact ever given ánd that the plaintiff’s claim was fictitious.and fraudulent, testimony that plaintiff was financially embarrassed about the time the note was claimed to have been given and was without the means to make tke loan was properly received; and held, further, that the testimony was sufficient to uphold the verdict in favor of defendant.</p> <p>2. - Opinion Testimony — Basis of a Judicial Finding. A witness who admits that he does not know the amount of certain checks should not be allowed to give his estimate, as a judicial finding cannot be based upon mere conjecture.</p> <p>3. - Complicated Accounts — Summary by a Competent Witness. Where book entries, vouchers or accounts are voluminous or complicated, the testimony of a competent witness who has made an examination and summary of them may ordinarily be received; but in the present case it does not ap-r pear that either the original or the summary offered was competent evidence.</p> <p>4. - Self-serving Declarations. To meef the testimony that the plaintiff was not financially able to make the loan in question she offered to show that at one time she had proposed to pay a large indebtedness to one of her creditors, but that payment was declined. Held, that this was a self-serving declaration, and it was properly excluded.</p> <p>5. Instructions — Comment upon the Evidence. While the trial court may not comment upon the weight of the evidence submitted to the jury; nor assume the existence or non-existence of controverted facts, it is not precluded from referring to parts or lines of evidence offered by the respective parties and making concrete applications of the law to them.</p> <p>6. - Formulating Instructions — Lirhitations of the Court. The court should be careful not to mislead the jury by singling out and giving undue prominence to a particular fact in the case, nor by unduly emphasizing the contentions of either party,' but it is often necessary and proper for the court to speak of important features in the evidence, and advise the jury as to the rules of law applicable to such facts.</p>

Error from Sedgwick district court; Thomas C. Wilson, judge. STATEMENT. The plaintiff in error commenced this suit in the district court of Sedgwick county to recover upon a promissory note and coupons, and to foreclose a real-estate mortgage given to secure the same, the note having become due by reason of a default in the payment of an interest coupon.

Error from Wyandotte court of common pleas; William G.' Holt, judge. STATEMENT. This action was begun to recover for brick furnished to W. W. Atkin, a contractor, who paved certain streets of Kansas City, Kan. The action was brought against W. W. Atkin, as principal, and the National Surety Company, as surety upon his statutory bond.

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Estoppel — Action Brought in the Name of Another — Settlement by Nominal Plaintiff. One who as attorney brings a proceeding for the unlawful detainer of real estate in the name of another may thereby estop himself to deny that the nominal plaintiff is the real party in interest and therefore entitled to settle the litigation and compromise the subject-matter thereqf, although the defendant may have notice that such attorney claims to be himself entitled to the possession of the property; and held, that under the facts of this case such an estoppel arises.</p> <p>2. - Failure 'to Plead — Consideration on Review. Where a case is tried as though a question of estoppel were in issue, the fact that .it was not formally presented by the pleadings does not prevent its consideration, on review.</p>

Error from Cherokee district court; William B. Glasse, judge. STATEMENT. In 1893 defendant in error W. L. Harper, who is also a cross-petitioner in error, became the agent of the ¿Etna Powder Company at Galena, Kan., probably to sell the goods of the company on commission. At any rate Harper gave a bond, with Page, Leeman and Prehm as his sureties, conditioned that he would pay the company all the moneys which might become due to it from him as agent.

Error from Dickinson district court; Oscar L. Moore, judge. STATEMENT. This action was brought by the defendant in error against the plaintiff in error to recover damages for the negligence of the railroad company and its employees, resulting in the death of her husband, J. W. Brown. A trial was had to a jury, and they returned a verdict in favor of the plaintiff for $1000.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgages — Foreclosure—Effect on Junior Lien. Real estate ’which has been once sold on an order of sale issued pursuant to a judgment of foreclosure, in a suit upon a note and a mortgage securing the same, cannot again be sold upon a judgment lien inferior thereto, under which the holder of the judgment had a right to redeem within fifteen months after the foreclosure sale.</p> <p>2. Judicial Sales — Title of Purchaser at Second Sale, under an Inferior Lien. Where, under the conditions set forth in the foregoing paragraph, an inferior judgment creditor causes execution to be issued and levied on the real estate so previously sold, and procures a sheriff’s deed to be issued to himself thereon, he acquires no title thereto and has no standing to complain of any judgment which may be rendered in a suit brought by one in possession, after his right of redemption has expired, to quiet the title to the real estate.</p>

Error from Labette district court; Thomas J. Flannelly, judge. STATEMENT. On the 22d day of October, 1903, J. G. McLaughlin received injuries by a fall from a depot platform of the Missouri, Kansas & Texas Railway Company at Chetopa, in Labette county, from the effects of which he died within a few days thereafter. At the time of his death he was sixty-six years old, and unmarried.

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Beneficiary Associations — Proceeding in Error —Limitation. Section 13 of chapter 23 of the Laws of 1893 (Gen. Stat. 1901, § 3580) limits the time within which fraternal beneficiary associations may appeal from a judgment to sixty days after its rendition. The case of Modern Woodmen v. Heath, 71 Kan. 148, 79 Pac. 1091, approved and followed.</p> <p>2. Constitutional Law — “Equal Protection of the Laws.” This construction of the statute does not deprive such associations of the “equal protection of the laws,” notwithstanding other litigants have one year within which to perfect an appeal.</p>

<p>Syllabus by the court.</p> <p>Title — Suit to Quiet — Mortgage Barred by Statute of Limiter tions. The law does not permit a mortgagor to quiet title against the holder of his mortgage on the naked ground that the right to foreclose the mortgage has become barred by the statute of limitations.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Demurrer — Evidence—Contributory Negligence. Where, in an action for damages on account of personal injuries, the defendant demurs to the evidence of. the plaintiff on the ground that it appears therefrom that the party injured was guilty of contributory negligence, it will not be deemed erroneous for the court to overrule such demurrer, if the facts justify a contrary conclusion.</p> <p>2. Evidence — Admissibility under a General Denial. Any evi- ' dence is admissible under a general denial which controverts the facts denied.</p> <p>3. Railroads — Injury to Person on the Track1 — Evidence. Where a person while sitting on a railroad-track is run over and killed, under circumstances which seem to justify the inference of contributory negligence, and the plaintiff, to rebut such inference, offers evidence to establish that the deceased had been subject to attacks of pleurisy which rendered her temporarily helpless, for the purpose of enabling the jury to infer therefrom that she was helpless when run over, such evidence is not subject to the objection that it bases one presumption upon another.</p> <p>4. Practice, District Court — Special Findings by a Jury. It is not error for a court to refuse to require a jury to make its answers to certain special'findings of fact more specific, when such answers, if made as requested, would not differ in legal effect from those already made.</p> <p>5. -Instructions. It is not error to refuse to give an instruction to the jury when the instructions given embrace in legal effect all that is in the one refused.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Divorce — Limitation'of Action. The general statutes of limitation of this state have no application to suits for divorce.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Fraud—Parol Testimony. Parol testimony is competent for the purpose of proving fraud and misrepresentation in procuring the execution of a promissory note, where fraud is pleaded as a defense.</p> <p>2. -Negotiable Instruments-. — Consideration. Between the original parties to a bill or note the consideration may always be inquired into.</p>

Error from Reno district court; Peter J. Galle, judge: STATEMENT. The Port Huron Engine and Thrasher Company, of Port Huron, Mich., manufactures thrashing-machines and sells them throughout the country through local agents. Its agent at Hutchinson, Kan., is the Peru-Van Zandt Implement Company (defendant in error).

<p>SYLLABUS BY THE COURT.</p> <p>Tax Deed — -Description of the Property — Deed Held Void. In the sale and conveyance of real property for taxes a description is sufficient if it indicates such property with ordinary and reasonable certainty, and would be sufficient between grantor and grantee in an ordinary conveyance; but if it is so inapt and uncertain as to mislead the owner, or if it will not afford fair notice of the tax levied against his property, or how much of it was sold for taxes, the conveyance will be invalid. And it is further held, that the tax deed in question is void.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>' Trespass — Real Estate — Bill of Particulars. The bill of particulars involved in this controversy examined and held not to state a cause of action for trespass on real estate within the meaning of section 6 of the code of civil procedure before justices.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Petition — Alteration of a Public Road. A defective statement of the change prayed for will not render void a petition for the alteration of a public road, where notwithstanding such defect the purpose of the petition can be gathered from the language used.</p>

Error from Logan district court; James H. Reeder, judge. STATEMENT. This action was commenced on the 25th day of February, 1905, by the plaintiff in error, in the district court of Logan county, upon a promissory note secured by a real-estate mortgage given by defendants Thomas J. Healey and wife, which note by its terms matured December 1, 1895.

Brinckerhoff, judge. STATEMENT. On the 20th day of April, 1905, the county attorney of Stafford county, Kansas, filed an information in the district court against William Learned and Bertha M. Austin, charging, or attempting to charge, both of the defendants jointly with incest with each other. There were six counts in the information.

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutory Construction — Statute Prohibiting Combinations Not Repealed by Subsequent Enactment. Chapter 158 of the Laws of 1891 (Gen. Stat. 1901, §§2439-2441.), prohibiting combinations to prevent competition among persons engaged in buying or selling live stock, is not superseded by the general antitrust law of 1897 (Laws 1897, ch. 265; Gen. Stat. 1901, §§ 7864-7874), but is still in force. (See post, p. 343.)</p> <p>2. Contracts — Commissions for Buying and Selling Live Stock —Legislative Restrictions. The intention of the legislature as to restrictions to be placed upon agreements .among persons engaged in buying and selling live stock for others for the control of the commissions to be charged must be determined from the act of 1891, above cited, having specific relation thereto, and not from the general antitrust act of 1897 or from that of 1889 (Laws 1889, ch. 257; Gen. Stat. 1901, §§ 2430-2438).</p> <p>3. Monopolies — Dealing in Live Stock — Statute Construed. The act of 1891 above cited forbids agreements to maintain minimum rates of commission for services in the sale of live stock for others, but contains no such prohibition as to agreements concerning charges to be made for services in purchasing live stock.</p> <p>4..- Mortgage Given to Secure Purchase-money and Commissions — Validity. Where a member of an association having for one of its purposes the maintenance of a minimum rate of charges for services in buying or selling live stock for others purchases cattle for another, and in pursuance of a bylaw of such association charges .a commission for such services at the rate of fifty cents per head, which is included in the amount of a note and mortgage given to such member of such association by the purchaser in payment for such cattle, such mortgage is not on account thereof rendered void by the provisions of any of the statutes above cited.</p> <p>5. Criminal Law — Obtaining Money'by False Pretenses — Information. In a prosecution for obtaining money by false pretenses by selling property encumbered by a mortgage under the representation that it is clear, it is not' essential that tlm information should show whether the mortgagee, described as “the A. J. Gillespie Commission Company,” is a corporation or a partnership.</p> <p>6. - Same. In such prosecution an allegation of the information that at the time of the sale the property was encumbered by a mortgage sufficiently charges that the mortgage was unpaid.</p> <p>7. - Allegations and Proof — Variance. In such .a prosecution the proof of a mortgage given for $13,366.80, the amount stated in the information being $13,356.80, is not a fatal variance.</p> <p>8. - Same. In such a prosecution the allegation of the information that the mortgage had been by the mortgagee assigned to, and was owned by, a bank and one Louis Hax is sufficiently sustained by proof that the mortgagee had sold the two notes secured by the mortgage, under a blank indorsement, to a buyer who in turn without further writing sold and delivered them to the bank, and that the bank then sold one of them' to Hax.</p> <p>9. -Draft — Defendant’s Title as Trustee Not Conclusively Shown. In such a prosecution the fact that the draft charged to have been fraudulently obtained by the defendant was made payable to him “for the use of” the person alleged to have been defrauded does not conclusively show that the defendant acquired title to it only as a trustee, but is open to the explanation that the words quoted were intended as a mere memorandum to indicate upon whose account the payment was made.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Statutory Construction — Statute Prohibiting Combinations — Repeal by Implication. Chapter 158 of the Laws of 1891 (Gen. Stat. 1901, §§2439-2441), prohibiting combinations to prevent competition among persons engaged in buying and selling live stock, is superseded by the general antitrust law of 1897 (Laws 1897, eh. 265; Gen. Stat. 1901, §§ 7864-7874), and is no longer in force.</p> <p>2. Monopolies- — Dealing in Live Stock — Violation of Antitrust Law. An association of persons and corporations engaged in • the business of buying and selling live stock, and practically controlling that business at the place of operation, which has a by-law forbidding its members to buy or sell live stock for others without charging a commission therefor of at least fifty cents a head, is a combination to carry out restrictions in the full and free pursuit of a lawful business, and in virtue of that fact is ’a trust within the terms of chapter 265 of the Laws of 1897.</p> <p>3. Contracts — Commission—Void Because Made in Violation of Law. The charging of a commission for services in the purchase of live stock for another, by a member of such a trust, in pursuance of the by-law referred to, is an act made a misdemeanor by that statute, arid a contract to pay a commission exacted under such circumstances is void because made in violation of law.</p> <p>4. -Illegal Consideration — Case Disapproved. A note and mortgage given for a consideration, a part of which is unlawful because based .upon a transaction made criminal by the statute, are wholly void. The language of the second paragraph of the syllabus in Rathbone v. Boyd, 30 Kan. 485, 2 Pac. 664, and of the corresponding portion of the opinion, is disapproved.</p> <p>5. - Consideration iñ Part Unlawful. Where two notes secured by a mortgage are given for a consideration in part unlawful, although the unlawful portion of the consideration is less than either of the notes, both of the notes and the mortgage are wholly void.</p> <p>6. Criminal Law — Obtaining Money by False Pretenses — Defense. In a prosecution under an information charging the obtaining of money by false pretenses through selling as clear cattle that were in fact mortgaged, it is competent for the defendant to show in defense that the mortgage relied upon by the state, although fair on its face, was void by reason of being-based in part upon a consideration made illegal by the antitrust statute.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Jury and Jurors — Special Finding Construed. Whether the answer “do not know” to a special question submitted to a jury is equivalent to “yes,” or “no,” depends upon the-form of the question answered. Generally such an answer shows that the party whose duty it was to establish the fact involved in the question has failed in his proof. In a case where it was the duty of the defendant to prove that Emma M. Carey did not sign a certain promissory note, and the jury, in answer to the question. “Did Emma M. Carey sign the note in question?” returned the answer “do not know,” such answer was equivalent to “yes.”</p> <p>2. Limitation op Actions — Statute as a Defense — Waiver. The statute of limitations, to be available as a defense, must be affirmatively pleaded or otherwise asserted, and a failure to do so constitutes a waiver of such defense.</p> <p>3. - Conflict of Laws — When Foreign Law May Apply. The laws of the state of Kansas relating to the limitation of actions apply exclusively in this state, except when the requirements of the statute permitting the law of another state or territory to be applied have been complied with.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Proceeding in Aid op Execution — Action of Probate Court —Review by District Court. In a proceeding in aid of execution the probate judge acts as a subordinate officer of the district court from which the execution is issued, and in the supervision of the probate judge’s action the court exercises original, rather than appellate, jurisdiction.</p> <p>2. -Method of Invoking Jurisdiction of District Court. Where such supervision was invoked by what was termed a “petition in error,” and the court gave such consideration to the proceedings of the probate judge as would have been given on a formal application, it cannot be held that its action was void or that any one was prejudiced by the informality.</p> <p>3. --- Basis for the Proceeding. An abstract of a judgment of a justice of the peace duly filed in the district court is a sufficient basis for a proceeding in aid of execution.</p> <p>4. Judgments — Payment by a Surety — Subrogation—Contribution. Under section 480 of the civil code (Gen. Stat. 1901, § 4926) a surety who has paid a judgment may have the benefit of such judgment, not only to compel repayment from the principal, but also to enforce contribution against other sureties jointly liable with him on the judgment.</p> <p>5. -Assignment to a Surety — Satisfaction. The payment of such judgment by one of the sureties against whom it was rendered, and the taking of an assignment of the judgment to himself, did not operate as a satisfaction of the judgment against the other judgment debtors.</p> <p>6. Proceeding in Aid op Execution — Rights of Third Parties to Ownership of Assets. While the rights of third parties as to the ownership of assets sought to be subjected to the payment of a judgment cannot be finally determined in this summary proceeding, the mere fact that property is in the hands of others than the judgment debtor, or that a colorable dispute as to the ownership arises, does not deprive the judge of power to proceed.</p> <p>7. -Res Judicata — One Not a Party. A third person who is subpoenaed as a witness and gives testimony in such a proceeding, but who is not made a. party to it, and who does not intervene to claim the property, is not'bound by the order of the judge, and may afterward in an appropriate action litigate his rights to such property.</p> <p>8. -Absence of the Judgment Debtor. The failure of the judgment debtor to appear and give testimony in the proceeding does not preclude the examination of other witnesses, nor prevent the judge from making such order as the testimony produced will warrant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Order Granting a New Trial. This court will not reverse an order of the trial court granting a new trial unless the record shows the order was clearly and manifestly in violation of some principle of law.</p>

Error from Saline district court; Rollin R. Rees, judge. STATEMENT. This is an action of forcible detainer. It was commenced before a justice of the peace, and the plaintiff recovered judgment. The defendant appealed to the district court, where the plaintiff again recovered judgment, and the defendant brings the case here for review.

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. Several creditors of Benjamin Heilbrun caused levies of executions to be made upon real estate in which it was claimed Heilbrun had an interest, acquired by inheritance from his wife. These suits were brought to enjoin the sale of the land upon the executions, claiming that the property had passed by will of Carrie Heilbrun, in whom the title had rested, to her children.

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deed — Recorded Five Years — Presumption as to Validity. Where a tax deed has been filed for record more than five years before it is attacked, all presumptions are in favor of the regularity of the prior tax proceedings.</p> <p>2. - Omission of Statutory Recital — Supplied by Inference. Where the only objection made to such a deed is that a statutory recital is omitted, or insufficiently stated, the deed will not be declared void if, by giving other recitals contained therein fair and liberal constructions, it can be said that such omitted recital is fairly supplied.</p> <p>3. •-- Delinquent Taxes Not Chargeable When■ Certificate is Assigned Not a Lien. Where lands have been bid off by the county treasurer for the county for delinquent taxes, the assignee of the tax-sale certificate therefor is required to pay only the amount of taxes, costs and charges which the county treasurer should have charged on the book of tax sales for unpaid taxes under the provisions of section 7654 of the General Statutes of 1901. Subsequent delinquent taxes not so chargeable at the time of the assignment are not liens upon the land within the meaning of the section.</p>

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

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

Error from Sedgwick district court; Thomas C. Wilson, judge. STATEMENT. This suit was brought by the plaintiff in error to enjoin the defendant in error, as sheriff of Sedgwick county, from selling land, which she alleged .was her property, under an execution issued against another person. At the commencement of the suit a temporary injunction was allowed by the judge of the district court.

<p>SYLLABUS BY THE COURT.</p> <p>Office and Officers — De Facto Judge Pro Tem. — Validity of Acts. One who claims to act as judge pro tem. of a city court by virtue of an appointment filed in a public office, and is recognized by the clerk and marshal of the court, and by litigants, attorneys, and others, as judge pro tem., is a de facto officer, and his acts, and judgments rendered by him while so acting, cannot be attacked in a collateral proceeding.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Sale—Delivery “f. o. b.” — Duty to Furnish Cars. When a seller of merchandise agrees to sell twenty car-loads thereof, to be delivered to the buyer “f. o. b. cars” at the seller’s place of business, it is not the duty of the buyer to furnish the cars to receive the goods; and, in an action by</p> <p>. the buyer against the seller to recover damages for nondelivery of the merchandise under such a contract, the petition need not allege that the plaintiff furnished cars ready to receive the goods.</p> <p>2. Words and Phrases — “f. o. b. Cars" Defined. The phrase “f. o. b. cars,” when used in a contract between a buyer and seller of commercial commodities, where the use of a common carrier is necessary, means that the seller will secure the cars, load them, and do whatever may be required to accomplish the consignment and shipment of the goods to the buyer, free of expense to him.</p>

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

Error from Ottawa district court; Rollin R. Rees, judge. STATEMENT. The plaintiff manufactures and erects mill machinery, and the defendant owns a flour-mill. The petition contains three counts. The first one pleads a contract whereby the plaintiff undertook to furnish and set up certain machinery for defendant’s mill for a price which the defendant agreed to pay.

Error from Marion district court ;'R. L. King, judge. STATEMENT. This action was brought by the defendant in error in the district court of Reno county to recover damages from the plaintiff in error for an alleged breach of a contract to marry. After a'motion of the defendant to strike out portions of the petition as redundant had been denied, the defendant joined issue by a general denial.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Authority of Secretary to Make Contracts. A secretary of a corporation cannot ordinarily, without special authority, make contracts which will bind the company.</p> <p>2. Judgments — Presumption on Review. Where a district court, in a trial without a jury, enters a general judgment, and the record in the case presents two theories upon which the court might have based its conclusions, one proper and the other erroneous, but does not show which theory was followed, this court will presume that the judgment was entered upon the theory which makes it valid.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation op Actions — Administrator’s Sale Void for Want of Notice — Action by Heirs. Section 16 of the code of civil procedure (Gen. Stat. 1901, § 4444), requiring actions brought by the heirs of a deceased person for the recovery of real property descending to them but sold by an administrator of the estate of the decedent upon an order of court directing such sale to be commenced within five years after the date of the recording of the deed made in pursuance of the sale, applies to sales which are void for want of notice to the heirs of the proceedings upon which the deed is based.</p> <p>2. Descents and Distributions — Rights of Heirs to Possession and Partition. Heirs suing for the possession and partition of real estate to which they have acquired title by descent are not required to show, as a condition precedent to recovery, that the land is not subject to appropriation for the payment of the decedent’s debts.</p> <p>3. Pleading — Written Instrument — Denial wider Oath. An allegation that a party is the owner of real property “under a valid and legal deed of ’conveyance duly executed” describes no written instrument whose execution is admitted unless denied under oath.</p> <p>4. - Administrator’s Deed — Effect of Failure to Deny Execution. Failure to deny 'the execution of an administrator’s deed under oath does not admit the validity of the proceedings upon which it is based.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury to Licensee. A person while upon premises occupied and controlled by an elevator company, with its consent and for the purposé of transacting business with it, is not a trespasser as to a railway company that owns the land upon which the elevator building stands.</p> <p>2. - Contributory Negligence., When a railway company negligently inflicts injuries upon a person situated as above stated, while such person is exercising ordinary care, it cannot avoid liability therefor on the plea of contributory negligence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury to Employee — Defective Appliance — Notice. Before an employee of a railroad company can recover from the company for injuries resulting from a defective appliance on a locomotive, of which defect the railroad company had no actual knowledge, he must show that it had existed for such a length of time that the company should have discovered and remedied it.</p> <p>2. Jury and Jurors — Special Finding Too Indefinite. There was a finding by .the jury that the injury in question would not have occurred but for the defect, and that the company had no actual knowledge of its existence. They also found, in response to a question as to the duration of the defect, that it had existed “for some time previous to the accident.” Held, that the latter finding is too indefinite to support a recovery.</p> <p>3. -Second Finding Also Indefinite — Presumption on Review — Waiver. At the instance of the defendant the jury were required to make a more definite answer to the question, but the second answer was no more specific than the first, and, as the second effort to obtain a specific answer had failed, it is not to be presumed that a better result would have been obtained by still other efforts; nor did the defendant waive its right to object to the finding by failing to request the court to have the effort repeated.</p> <p>4. - Finding and Evidence. A finding of a jury upon a specific and controlling question must be deemed to be as full and definite an answer as the testimony in the case will warrant.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Constitutional Law — Statute Relating to Injunctions Held Valid. Chapter 334 of the Laws of 1905, amending section 4700 of the General Statutes of 1901 (one of the sections of article 12 of the code relating to injunctions), is not multifarious because it deals with injunctions in respect to such diverse matters as taxation, improvident public contracts, and nuisances.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Information—Election of Counts. Where an information contains several counts, intended to charge the same substantial offense in different ways, and their allegations are not inconsistent, it is ordinarily not error for the trial court to refuse to require the state to elect upon which one it will rely for a conviction.</p> <p>2. - Verdict — Sufficiency. In such a case a verdict of guilty which fails to refer to any specific count is sufficient, and will be regarded as a finding of guilty upon all of them.</p> <p>3. -Evidence Admissible under One Count — Defective Counts. In such a case, if all the evidence introduced would have been admissible under one count, which states a public offense, the fact that one or more of the other counts may fail to do so, or may fail to bring the case within the operation of the particular statute under which they are drawn, is not fatal to the conviction.</p> <p>4. - One Good Count — Instructions. Where an information contains one good count, and several others which repeat its allegations, with others which are unnecessary and do not change the character of the offense, a conviction will not be disturbed on account of any failure to instruct upon such additional matters, where no prejudice results to the defendant with respect to his trial upon such good count.</p> <p>5. Evidence — Judicial Notice. The courts will take notice without proof that a municipality is a city of the second class, where it has been made such under the statute by a public proclamation issued by the governor.</p>

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

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

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Failure to Complete a Track — Forfeiture of Bight of Way. A court cannot say as a matter of law that the mere failure of a railroad company for any fixed period to complete a track upon a right of way which it has acquired by condemnation works a forfeiture of its rights, where there has been no adverse possession.</p>

Error from Jefferson district court; Cyrus F. Hurrel, judge. STATEMENT. Defendant in error sued the plaintiff in error in the district court of Jefferson county to recover $132.12 paid by him to it on a contract of insurance, which he claimed was procured through fraudulent representations. Judgment was rendered for the full amount claimed by the plaintiff, and the insurance company brings the case here for review.

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

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. IN 1901 the Bankers’ Union of the World was a fraternal beneficiary association, organized under the laws of the state of Nebraska. Its principal officers were E. C. Spinney, president, and C. M. Chittenden, secretary.

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Closing of a Railway-crossing — Jurisdiction. A suit of injunction to prevent the closing of an under-grade crossing of a railroad operates in personam, and is not one of those provided for in section 46 of the civil code (Gen. Stat. 1901, §4476) .which must be brought in the county in which the subject of the action is situated.</p> <p>2. Railroads — Contract with Landowner for Right of Way— Reservation. A contract between the owner of land and a railroad company, in connection with a proceeding to condemn a right of way for a railroad, which reserved to the landowner an undergrade crossing as a means of access from one part of the farm to the other, and which was taken into account by the condemnation commissioners in the award of damages for the appropriation of the right of way, is binding upon both of the parties.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — Use of Party Wall — Right to Sue — Title. Where •there is a dispute whether the wall of a building stands wholly upon the land of its owner or rests in part- upon that of another, the owner of the building, being in the peaceable possession thereof, may maintain injunction to prevent, the adjoining proprietor from using such wall as a party wall until he has established his right thereto in a proceeding brought by him for that purpose.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment — Action by a Tax-deed Holder Wrongfully Dispossessed.' Where a tax deed, valid on its face, has been of record for five years, with the tax-title holder in actual possession, and one claiming adversely wrongfully dispossesses him by force, fraud, or stealth, the holder of the tax deed may maintain ejectment to regain what was wrongfully taken from him.</p> <p>2. -■-Limitation of Action. The two-year statute of limitations has no application to such a case.</p>

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

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

<p>Appeal from- Sumner district court; Preston B. Gillett, judge pro tern.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Insane Persons — Appointment of a Guardian — Jurisdiction. Jurisdiction to appoint a guardian over the person and estate of a lunatic belongs exclusively to the probate court of the county where such lunatic has a permanent residence.</p> <p>2. --■. Inquiry as to Mental Condition — Limitation of Jurisdiction. The jurisdiction conferred upon other probate courts by section 3941 of the General Statutes of 1901 to inquire into and adjudicate upon the sanity of persons in the county is intended as a police regulation, and jurisdiction ends with the adjudication and commitment or discharge of such person.</p> <p>3. - Conclusiveness of Adjudication of Mental Incapacity. An adjudication of lunacy under section 3941 of the General Statutes of 1901, legally had, is conclusive upon the lunatic and all other persons; and the probate court of the county where such lunatic has a permanent residence may accept and act thereon the same as if such adjudication had occurred in that court.</p> <p>4. - Foreclosure of a Mortgage on Lunatic’s Property— Service"upon the Guardian. Where a guardian has been appointed by the probate court of the proper county, as above stated, and a suit to foreclose a mortgage upon the real estate owned by the lunatic for whose estate such guardian was appointed is commenced in the district court of such county, service of summons upon such guardian will confer jurisdiction upon the district court to adjudicate the rights of such lunatic in the real estate.</p> <p>5. -Redemption of Property after Restoration to Sanity. A lunatic whose property has been sold under foreclosure proceedings wherein his guardian was served with summons, as above stated, has no right to redeem the property from such sale after his restoration to sanity merely for the reason that the court did not acquire jurisdiction by service of summons on such guardian.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Insane Persons — Jurisdiction of Probate Court. Except as limited by the statutes, probate courts in this state have the same power over the person and estate of lunatics that was formerly possessed by courts of chancery under the common law.</p> <p>2. -Appointment of a Guardian — Notice. In the absence of a statutory requirement no notice is necessary to confer authority upon a probate court to appoint a guardian for a lunatic who has been duly ,adjudged to be a person of unsound mind.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Action for Wages — -Forfeiture—Pleading and Proof.' In an action for the recovery of wages and expenses under a contract of hiring, an answer which merely disputes the length of time the plaintiff was in the defendant’s service and pleads payment is insufficient to authorize a forfeiture of all compensation on the ground of dishonesty and other flagrant misconduct.</p>

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

Error from Shawnee district court; Robert C. Heizer, judge pro tern. STATEMENT. This action was brought by Johanna Henrietta Zimmerman, since deceased, against the defendant, William Zimmerman, in the district court of Shawnee county, to recover damages for the breach of a warranty in a deed executed by the defendant to the plaintiff in 1883, purporting to convey certain real estate in that county, with the usual covenants of warranty and for the consideration of $1500.

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

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

Error from Doniphan district court; William I. Stuart, judge. STATEMENT. Action by the firm of Faxon, Horton & Gallagher to recover for drugs purchased for the “Elk Pharmacy,” in Kansas City. C. F. McCormick owned a drug-store and employed R. E. Ela, jr., as his agent and manager of the store. A few months afterward McCormick died; and J. A. Campbell was appointed administrator of the estate.

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

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Commission for Sale of a Homestead — Refusal of Wife to Convey. Where one employs a real-estate broker to find a buyer for land which he occupies with his wife as a homestead, and the broker produces a purchaser ready and willing to take the property upon the prescribed terms, the agent’s claim for compensation is not defeated by the fact that a sale is prevented through the refusal of the wife to execute a conveyance.</p>

McCabe Moore, judge. STATEMENT. At the June term of the district court of Wyandotte county appellant was convicted of the crime of accepting a bribe to influence his official action as a member of the board of education of Kansas City. He was sentenced to confinement in the state penitentiary for a period of not less than one or more than seven years. From the judgment he appeals.

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law — Amendment or Repeal of a Statute by Implication. Statutes which effect the amendment of existing laws by implication are not within the purview of the constitutional provision that “no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.” (Const, art. 2, §16; Gen. Stat. 1901, § 134.)</p> <p>2. - Classification of Cities — Laws Applicable to a Class. It is competent for the legislature to classify cities according to population for various purposes, and laws applicable to all of the members of any class so created may be general laws and have a uniform operation throughout the state.</p> <p>3. - Reasonable Classification. The matter of the method of providing for the cost of street improvements is one with relation to which cities may -reasonably be divided into classes upon the basis of population.</p> <p>4. - One City in a Class — Lato Not Special. A law for the government of cities of a certain population is not rendered special in its operation by the fact that there is at the time only one city in the state of the size designated.</p> <p>5. - Cities Having Over 50,000 Population — Payment for Street Improvements. Chapter 112 of the Laws of 1905, providing that in cities of the first class having over 50,000 population payment for street improvements shall be made by the issue of tax bills chargeable against the property specially benefited instead of by the issue of negotiable bonds of the corporation, is not obnoxious to that provision of the constitution relating to the amendment of laws, or to that forbidding the conferring of corporate powers by special act, or to that requiring general laws to have a uniform operation throughout the state.</p> <p>6. Bonds — Contractors—Character of Surety — Legislative Control. It is competent for the legislature to require that persons contracting with cities for the improvement of streets shall give bonds for the faithful carrying out of their contracts, executed by some surety company authorized to do business in the state.</p>

Hudson, judge. STATEMENT. The defendant was tried, convicted and sentenced in the district court of Atchison county for the crime of burglary in the second degree, and appeals to this court.

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

<p>Appeals from Norton district court; Abel C. T. Geiger, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Change of Venue — Prejudice of the Judge. An apprehension of a party that a judge is prejudiced against him is not enough to require a change of venue, but it must satisfactorily appear that prejudice in fact exists.</p> <p>2. Attorneys — Disbarment—Statutory Grounds Not Exclusive. The enumeration in the statute of certain acts which will be deemed sufficient for the revocation or suspension of an attorney’s license to practice law does not limit the common-law power of the court in that respect, and attorneys may be disbarred for other than the statutory grounds.</p> <p>3. - Gross Misconduct a Ground for Disbarment. An attorney may be disbarred not only for malpractice and dishonesty in his profession, but also for gross misconduct showing him to be unworthy of the privileges which the law confers on him and unfit to be entrusted with the duties and powers of an attorney.</p> <p>4. -Proof of Conviction of Crime Not Essential. Where the charges made against an attorney involve moral turpitude, proof of a conviction is not essential to a disbarment.</p> <p>5. - Statute of Limitations Not a Defense. In a proceeding for the disbarment of an attorney the statute of limitations is no defense.</p> <p>6. -Procedure — Court itself Must Try Facts. In such a case the court itself is the trier of both facts and law, and these functions cannot be delegated to a committee, commissioner, or referee.</p> <p>7. -Accusation — Form and Requisite. The formal and technical requirements of criminal pleading are not required in an accusation, but it is necessary that the charge against an attorney shall be so specific as fairly to inform him of the precise nature of the misconduct of which he is accused. If the facts of the charged misconduct are clearly brought to his attention, the form in which they are stated or whether some of them are repeated in several paragraphs is not vital.</p> <p>8. -Sufficiency of Evidence. The testimony of moral and professional delinquency of the accused is held to meet the requirement that more than a mere preponderance of the evidence is necessary in such cases, and is sufficient to support the judgment of disbarment.</p>

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

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

<p>1. Damages — Death by Wrongful Act — Evidence. Where an ordinance required railroad-tracks to be constructed level with established street grades, but there was no proof of the violation of the ordinance, it was held not error, in a personal-injury case, to exclude testimony that defendant’s track was above the surface of the street.</p> <p>2. - Violation of Speed Ordinance. The provisions of an ordinance regulating the speed at which cars should be operated were said to refer to ordinary operation, and not to exceptional acts in clearing the tracks of snow.</p>

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

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

<p>Railroads — Injury by Fire. In an action for damages resulting from a fire started by defendant’s engine, judgment for defendant affirmed.</p>

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

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

<p>Banks and Banking — Fraudulently Induced Sale of Stock — Punitive Damages. In an action for damages for fraud in inducing a sale of bank stock, where the court erred in including certain items in its computation of the value of the-stock, the amount allowed in excess of the actual value of the-stock was not permitted to stand as punitive damages.</p>

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

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

<p>Appearance Bond — Forfeiture. After a plea of not guilty had been entered by counsel for defendant to an information charging the unlawful sale of intoxicating liquor the information was amended. Counsel for defendant declined to plead or answer to the amended information, and ..the court ordered defendant’s non-appearance to be entered, and adjudged his recognizance forfeited. In an action on the bond the defendants demurred to the petition, and the demurrer was overruled. A judgment against the defendants was affirmed.</p>

<p>Error from Reno district court; William H. Lewis, judge.</p>

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

<p>Promissory Note — Set-off. In an action on a note, to which defendants pleaded a set-off, judgment for plaintiff affirmed.</p>

<p>Ejectment-^ — Pleadings. In an action of ejectment it was held that the pleadings put in issue the ownership of the property, and that therefore it was error for the court to render judgment on the pleadings, the issue being undetermined.</p>

<p>Error from Jewell district court; Richard M. Pick-XER, judge.</p>

<p>1. Partnership — Dissolution—Suit upon the Settlement — Petitioni A petition to recover an amount agreed upon alleged that upon the dissolution of a partnership there had been a full and final settlement of the “business.” An objection to evidence because the petition did not allege a settlement of the partnership affairs was held to be trivial.</p> <p>2. -Firm Obligations. Upon the final settlement of partnership affairs a sum was found to be due to plaintiff, which defendant, agreed to pay. In a suit for the amount 'it was held that plaintiff need not prove that the firm debts had been paid, although the petition so alleged.</p>

<p>Practice, Supreme Court — Second Appeal — Law of the Case. The rule applied that where a case is brought a second time on error to this court the first decision will be deemed the settled law of the case, not merely as to all questions actually presented by counsel, but as to all questions existing in the record and necessarily involved in the decision.</p>

<p>Railroads — Injury by Fire. A railway company held liable for the burning of a building through the negligence of its employees in setting out a fire to clear the company’s right of way.</p>

<p>Fees and Salaries — Deputy Sheriffs. A sheriff held not entitled to recover compensation for the service of deputies in excess of that authorized by the statute.</p>

<p>1. Damages — Death of a Child — Defective Highway. A judgment awarding damages to parents for the death of a child caused by a defective highway affirmed.</p> <p>2. Costs — Claim Not Presented to Township Board. It was said that the plaintiffs were entitled to their costs although they had not presented their claim to the township board before beginning the action.</p>

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

<p>Appeal from Butl'er district court; Granville P. Aikman, judge.</p>

<p>Practice, Supreme Court — Proceeding to Forfeit Office of Sheriff. An original proceeding to remove a sheriff from office dismissed because the controversy could better be heard in the district court.</p>

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

<p>Error from Harvey district court; Peter J. Galle, judge.</p>

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

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

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