Volume 74 — Kansas Reports

Error from Sedgwick district court; THOMAS C. Wilson, judge. STATEMENT. This is an action by J. M. Ratcliff to recoyer for overcharges on live stock placed in, and marketed at, the Wichita Union Stock-yards.

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

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

Error from Stafford district court; Jermain W. Brinckerhoff, judge. STATEMENT. The plaintiff in error brought this suit in the district court of Stafford county against the defendant in error, claiming to be the owner of a two-thirds interest in a-one-half section of land in that county, that the defendant was in possession of the same and owned an undivided one-third interest therein, and that he entirely excluded the plaintiff from the possession thereof.

Error from Marshall district court; Sam Kimble, judge. STATEMENT. In an action for the benefit of herself and minor child defendant in error recovered a judgment of $5000 for the death of her husband, William R. Reedy, who was injured March 24, 1904, by the explosion of a blast in plaintiff in error’s mine. His death occurred two days after the accident. The plaster company brings error.

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

<p>SYLLABUS BY THE COURT.</p> <p>Municipal Corporations — Defective Sidewalk — lee Formed from Natural Causes. In an action against a city for injuries from a fall upon a sidewalk covered with ice and snow, where it appears from plaintiff’s opening statement that the ice, which accumulated from natural causes, was less than an inch in thickness, and that plaintiff knew when he went upon it that the ice was smooth and slippery, and that he fell by reason of its smooth and slippery condition, and no other defect is claimed, a judgment for costs in favor of the city will be upheld.</p>

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

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

Error from Johnson district court; Winfield H. Sheldon, judge. STATEMENT. Sarah E. Johnson brought an action against the plaintiff in error to recover for the death of her son, William A. Johnson, a brakeman, who was killed while in the employ of the railroad company near Scullin, in the Indian Territory. She recovered a verdict and judgment for $2000, and the company prosecutes this proceeding in error.

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

Error from Geary district court; Oscar L. Moore, judge.. STATEMENT. This was a suit by J. G. Furrow to enjoin A. C. Rait from maintaining an embankment and thereby obstructing what is called a natural watercourse flowing through his land and upon that of Rait. The trial court made findings of fact from which it appears that Furrow owns a farm in Geary county, and adjoining it on. the‘east is a farm owned by Rait.

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Ejectment — Evidence of Title — Deed—Stranger in Possession. Where the title to real property is shown to. have vested in seven trustees for the benefit of a church, a deed subsequently executed by two’ of these trustees and two other persons,, the four assuming to act in behalf of the church, in the absence of any showing that these two other persons were in fact trustees, or that the four had authority to bind the church, is no evidence of title when offered against a stranger to the deed, who is in possession, by one who fails to show that either he or any one through whom he claims ever had possession.</p>

Error from Reno district court; 'Peter J. Galle, judge. STATEMENT. Plaintiff in error was engaged in the contracting business and had a number of men at work repairing a large coal-shed belonging to the Hutchinson Water, Light & Gas Company. The coal-shed having been overloaded with coal, the walls had spread and left the foundation at the sides, and the roof sagged down.

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Injury to Employee — Notice of Defective Appliance. In an action to recover for injuries sustained by an employee of a corporation because of a defective appliance, the knowledge of a representative of the corporation (a foreman in charge of the department where the defective appliance was used) of the defect is the knowledge of the corporation, and testimony of an admission made by such foreman, in connection with the management of such business, that he knew of the defect, is admissible to show the knowledge of the corporation.</p> <p>2. Evidence — Irrelevant Answer by a Witness — Motion to Strike Out — Waiver. Where the answer of a witness to a proper question is in part irrelevant and improper, a motion to strike out the objectionable part should be made; and if it is not brought to the attention of the trial court its reception is not available error on review.</p> <p>3. New Trial — Newly Discovered Evidence — Showing of Diligence. Before a new trial will be awarded on the ground of newly discovered evidence there must be, among other things, a clear showing that by the exercise of reasonable diligence on the part of the applicant it could not have been procured • for the trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Accident Insurance — Sunstroke. The word “sunstroke,” when used in an insurance policy in describing one of the risks covered, should not be interpreted as applying only to an effect produced by the heat of the sun, unless the context or other special considerations require it; the term unexplained denotes a condition produced by any heat, solar or artificial.</p> <p>2. - Disability Due to Artificial Heat. In an action upon an accident-insurance policy containing a provision that loss of time due to sunstroke should be deemed to be due to external, violent and purely accidental causes and should entitle the insured to full benefits according to the terms of the policy, where the plaintiff’s claim is based upon a loss which he alleges was due to sunstroke, he is not precluded from recovery by the fact that his disability was occasioned by exposure to the heat of a furnace, not to that of the sun.</p>

Error from Cowley district court; Carroll L. Swarts, judge. STATEMENT. Douglas Bourdett brought this action against the railway company to recover damages on account of the wilful and unlawful withholding of a freight shipment. He was employed in the business of drilling wells for gas and oil, and operated a well-drilling outfit in Cowley county.

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. General Statutes — Authentication — Adoption — Evidence. The compilation known as the General Statutes of 1897 not having been authenticated according to law, and not having been adopted by the legislature in a constitutional manner as ■a revision of the statutes, the matters embodied in it are not to be deemed the general statutes of Kansas; nor does such compilation afford prima facie evidence of the due passage and publication of the provisions, sections and chapters which it contains.</p> <p>2. Constitutional Law — -Amendment of a Law — Intoxicating Liquors. In the compilation referred to section 8 of chapter 149, Laws of 1885, relating to the procuring of evidence concerning violations of the liquor laws and providing for proceedings against persons'and property based upon such evidence, is arbitrarily divided into two parts, which are separately printed as section 49 and section 50 of chapter 101 of that work. Chapter 233 of the Laws of 1901 purports to amend section 49 of chapter 101, General Statutes of 1897, without intending or attempting to repeal that part of section 8 of chapter 149, Laws of 1885, embraced in section 50, and without embodying such part in the new section. Held, the amendatory act violates section 16 of article 2 of the constitution and is void.</p>

<p>SYLLABUS BY THE COURT!</p> <p>1. Express Companies — License Tax — City Ordinance Valid. Under the provisions of section 134 of chapter 122, Laws of 1903, section 54 of ordinance No. 2384 of the city of Topeka is valid,'and the license tax imposed by such ordinance upon express companies and agencies conducted, carried on or operated within the limits of the city may be collected from the owner or managing agent of such express company who conducts such business within the limits of the city.</p> <p>2. --■ Consignment to be Delivered within the City Not Essential. The fact that an express company or agency does not receive packages from consignors within the city to be delivered for hire to consignees within the city does not relieve it from the -payment of such license tax.</p> <p>3. - What Constitutes Business Conducted within the City. The receiving of packages within the limits of the city from consignors, to be delivered by express to consignees without the city but within the state of Kansas, and collecting the charges therefor, or the receiving and delivering of packages sent by express through other express agencies in the state but out of the city, and delivering the same to consignees within the city and collecting the charges therefor, is conducting and carrying on an express agency within the limits of the city.</p> <p>4. Criminal Law — Failure to Pay License Tax — Penalty. The owner or managing agent of such express agency who shall fail or refuse to pay such license tax on demand when due may be arrested ánd fined as provided by the ordinance of the city.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutory Construction — Title of an Act — Comprehensiveness. The title “An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes,” is broad enough to cover a provision for the appointment of assistants to the attorney-general to prosecute offenses against the statute in case of the failure of the county attorney to do so.</p> <p>2. New Trial — Failure of Defendant to Testify — Consideration by the Jury. To justify a reviewing court in ordering a new trial in a criminal case because of- the infraction of the statutory rule that the omission of the defendant to testify shall not be considered by the jury, it must conclusively appear that the jury or some one of them in arriving at a verdict gave weight to the fact that the defendant did not take the stand in his own behalf, as a circumstance tending to establish his guilt.</p> <p>3. Intoxicating Liquors — Nuisance—Knoivledge of Owner of Building — Evidence. In a prosecution against the owner of a building for knowingly permitting its use in maintaining a nuisance, the state, after introducing sufficient evidence to justify a finding that the building was so used, may then, as tending to bring knowledge of that fact home to the defendant, show that it had the general reputation in the community of being used for that purpose.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — New Trial — Misconduct of Jury. It is not error to deny a motion for a new trial in a criminal case for-misconduct of the jury, unless the facts are such that the court may presume that prejudice resulted therefrom to the defendant.</p> <p>2. -Instruction — Statutory Definition of Manslaughter. In a trial upon a charge of murder it is not error for the court to define the crime of manslaughter in the second degree in the language of the statute;</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Setting out Fire — Statutory Remedy — Proof. Disregarding the element of negligence, no recovery can be had under the statute providing that “if any person shall set on fire any woods, marshes or prairies so as thereby to occasion damage to any other person, he shall be liable to the party injured for the full amount of such damage, to be recovered by civil action” (Gen; Stat. 1901, §8010), except upon proof that a fire has been directly and intentionally set to woods, marsh or prairie.</p> <p>2. -r — • Petition — Opening Statement — Instructions. Where a petition states a cause of action independent of such statute for damage occasioned by the negligent setting out of a fire, and instructions are given covering that aspect of the case, but the allegations of the petition are broad enough to support a recovery under the statute, independent of negligence, and the plaintiff in his opening statement and in his request for instructions describes the action as based upon the statute and asks that the. jury be' instructed that a recovery may be had irrespective of negligence, he cannot complain because the court also instructs that a recovery would be justified if the jury should find there had been a direct and intentional setting fire to the prairie, ■ regardless of .any question of negligence.</p> <p>3. Evidence — Impeaching a Witness. The rule that a litigant ordinarily is not permitted to introduce evidence for the purpose of impeaching his own witness forbids his attempt to impeach a witness whom he himself first uses, notwithstanding the same witness is afterward called upon to testify on behalf of the adverse party.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Insolvency—Assets—Stockholders’ Liability. In this’ state the statutory liability of a stockholder to pay upon the debts of the corporation an amount in addition to his subscription equal to the par value of his stock becomes an asset of the corporation in the event of its insolvency; the liability is one arising upon contract; the right of action to enforce it is one arising upon contract; and by virtue of subdivision 6 of section 70a of the bankruptcy act (30 U. S. Stat. at L. p. -565) such right of action passes to the trustee in bankruptcy of the corporation upon his due appointment and qualification.</p> <p>2. - Suit by a Trustee in Bankruptcy. Such liability may be enforced by the trustee in bankruptcy of the corporation without judgment against it having first been obtained by its creditors and execution returned unsatisfied, and without the appointment of a receiver for the corporation by a state court.</p>

<p>SYLLABUS BY THE ' COURT.</p> <p>Practice, Supreme Court — Motion for a New Trial a Condition Precedent — Time of Filing. Where a case is tried without the intervention of a jury, and the court files findings of fact and conclusions of law which include a determination of the general issue, either party aggrieved by rulings made during the trial, in order to procure their review here, must file a motion for a new trial within three days from the time such findings and conclusions are made, irrespective of the time judgment is rendered.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deed — Void on Its Face — Separate Tracts Sold in Bulk. A tax deed which shows a sale of several separate and distinct tracts of land in bulk for a gross sum is void on its face.</p> <p>2. - Defective Description Not Cured by Act to Legalize Compromise of Delinquent Taxes. Chapter 242 of the Laws of 1901, purporting to legalize the acts of the county officers of Hamilton county in the compromise of delinquent taxes for the years 1892 to 1900, inclusive, cannot cure a defective description in a tax deed issued by such officers during the year 1894 for the delinquent taxes of 1886, 1887 and 1888.</p> <p>3. Evidence — Judicial Notice. This court will take judicial notice of the permanent location of an important line of railroad which traverses the state upon a firmly established route, and that certain lands conveyed to the railway company by patent from the state by authority of an act of congress are within the limits of such permanent location and a part of I the lands granted to the railway company.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Excessive Levy — Tender of Valid Portion — Lien Not Discharged. Where an excessive tax is levied against real estate, a mere tender of the valid portion of such tax to the county treasurer by the landowner and a refusal on the part of the treasurer to accept the tender will not relieve the land of the tax lien for the valid part of such tax.</p> <p>2. Conveyances — Tax Deed Executed on Sunday — Tax Lien Not Destroyed. The holder of a tax-sale certificate requested the county clerk to issue a tax deed thereon. A deed was executed and delivered within the time prescribed by section 7715 of the General Statutes of 1901, relating to floating liens. From the date of the deed it appeared to have been executed on Sunday. This fact was discovered more than four years after the sale of the land. Held, that the execution of the deed on Sunday was not such a violation of sec-' tion 7715 as to destroy the tax lien under the certificate.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Forcible Detainer — Notice to Leave, and Complaint — Inaccurate Description of Land — Partial Recovery. The notice to leave, preliminary to an action of unlawful detainer, and the complaint subsequently filed, did not correctly describe all the tracts of plaintiff’s land leased to the defendants. Held, that this did not bar a recovery of the tracts which were correctly described in the notice and complaint.</p> <p>2. -L Service of Notice to Leave. Such notice may be served by leaving a copy of it with some person ovér twelve years of age on the premises described in the notice, .and, on a demurrer to the evidence, where there is testimony that a copy was left with a person on the premises it will be deemed to be a legal service.</p> <p>3. Agency — Authority—General or Special. Authority to an agent to rent land does not authorize him to contract for the erection of buildings or the making of improvements.</p>

Error from Wyandotte court of comihon pleas; William G. Holt, judge. STATEMENT. J. A. Essex, who was in possession of certain lots in Kansas City, Kan., brought his suit against the plaintiff in error and others to quiet his title thereto.

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

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

Error from Smith district court; RICHARD M. PlCKler, judge. STATEMENT. The plaintiff entered a passenger-train of the defendant at Esbon, Jewell county, to ride as a passenger, having procured a ticket for his passage to Lebanon, the next station, about six miles west. The stations at both Esbon and Lebanon are on the north side of the main track. At Mankato, several miles to the east of Esbon, is the nearest station which is upon the south side of the main track.

Error from Reno district court; Peter J. Galle, judge. STATEMENT. J. W. Bressler jumped from a buggy in which he was riding and alighted upon the track of the defendant’s railroad and was killed by a freight-train. The administratrix of his estate brought this action against the railroad company to recover damages for the negligence of the railroad company and its, employees, which, it is alleged, caused the death of Bressler.

<p>1. Contempt — Inherent Power of Supreme Court. Held tha1 the supreme court has inherent power to punish for contempt and to determine whether a contempt has been committed.</p> <p>2. - Jurisdiction of Defendant — Process. It was said tha jurisdiction of the defendant could be obtained by citation and need not be by arrest under a writ of attachment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Office and Officers — Misconduct—Ouster—Eligibility for Remainder of Term. Where a mayor -of a city of the first class by official misconduct forfeits his office, and the forfeiture is judicially declared in a quo warranto proceeding, the judgment of ouster will operate to deprive him of the right to take or hold the office during the remainder of the term to which he had been elected.</p> <p>2. -Reeleetion of Ousted Officer — Contempt. The electors of such city cannot in a special election restore that which was forfeited nor limit the effect or the enforcement of the judgment of ouster by electing the unfaithful officer for the remainder of the term forfeited.</p>

Error from Bourbon district court; Walter L. Simons, judge. STATEMENT. On September 15, 1896, H. G. Gates owned a house and lot in the city of Fort Scott, Kan. At that time he borrowed $1500 from the plaintiff in error, a building and loan association in that city, executing his note therefor.

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

Error from Shawnee district court; Alston W. Dana, judge. STATEMENT. On May 1, 1889, the firm of Emrich, Newhouse & Co. recovered, in the district court of Osage county, a judgment against the firm of Heilbrun & Lauer for the sum of $357.05 and costs. On April 14, 1894, an execution was issued and returned unsatisfied. On March 13, 1900, the judgment was revived against the defendants. On August 6, 1902, Felix Emrich, one of the plaintiffs, died intestate.

Original proceeding in mandamus. STATEMENT. This is an original proceeding in mandamus to compel the defendants, who are the county commissioners of Thomas county, to consent to an appointment of appraisers of school-land made by the superintendent pf public instruction of -that county, as provided by section 6339 of the General Statutes' of 1901.

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

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

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

<p>Error from McPherson district court; W. H. Lewis, judge.</p>

Error from Ottawa district court; Rollin R. Rees, judge. STATEMENT. IN 1901 the Avery Manufacturing Company, through N. Lambertson, its agent, sold a thrashing outfit to one Cunningham for $2295, and in settlement took a number of promissory notes executed by the purchaser and payable to it at different times. The payment of the notes was secured by a chattel mortgage on the outfit, some growing wheat, and a number of horses and cattle.

Error from Kingman district court; Preston B. Gillett, judge. STATEMENT. This was a suit to redeem certain lands from the lien of a mortgage. In 1892 James E. Coffman, who was the owner of a farm in Kingman county, was indebted to A. S. Hunter in the sum of $260.

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

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

<p>Error from Shawnee district court; Alston W. Dana, judge.</p> <p>STATEMENT.</p> <p>This action was commenced by the plaintiff in error to recover on an indemnity bond executed to it by the defendants in error. It appears that there was a litigation pending in the district court of Grayson county, Texas, involving the settlement of a large estate, and that there were persons living in Kansas who claimed to be interested and who wished to intervene in that action to protect their interests. These persons were required to give a bond for costs before they were permitted to intervene. The American Surety Company of New York made this cost bond for them, but before^ it would make the bond it required the contemplated litigants to give an indemnity bond to protect it from loss. In compliance with this requirement the defendants executed to it the bond sued on in this action.</p> <p>The intervenors were adjudged to pay certain costs. The clerk of the Grayson county court sent to the surety company a cost bill for $194.29, which was paid by the defendants and was supposed by them and by Mr. H. E. Valentine, the local agent of the surety company in Topeka, to include all the costs that the intervenors would be required to pay. Subsequently, however, another bill for costs, amounting to $200, was presented to the surety company, which it was compelled to pay, and which, upon demand, the defendants refused to pay to the company, and this action was brought upon the indemnity bond to recover this item.</p> <p>The nature of the action in Texas was such that the trial court was required to appoint a lawyer to. represent what are there called “unknown heirs.” That was done, and it was the fee of $200 of such appointee, taxed as costs in the case, which the surety company paid and which it now seeks to recover from defendants.</p> <p>The pleadings of the defendants, in addition to a general denial, alleged that when they paid to Mr. H. E. Valentine the item of $194.29 costs he represented that this would release them from all liability on the bond; that the bond should be canceled; that this was everything in the nature of costs chargeable to them, and that there could be no further liability on the bond; that relying upon these representations they took no steps to protect themselves against the judgment for further costs, and were not present in court when the judgment for the $200 was rendered against them; and that had they not been relying upon the representations, statements and promises of Mr. Valentine they would have appeared in the Texas court and defeated the recovery of the judgment. Some other matters were alleged in the answer, which are unimportant.</p> <p>The jury returned a verdict for defendants Wellcome and Dunn. The plaintiff moved for a new. trial, which was denied. It is to reverse this order denying its motion for a new trial that it prosecutes error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Issue Not Pleaded but Acquiesced In. Where with the acquiescence of the litigants a case is tried upon the assumption that a certain question of fact is involved, an inquiry in a reviewing court into errors assigned with regard to such question cannot be avoided by the prevailing party merely.by a showing that it was not within the issues raised by the pleadings.</p> <p>2. Guaranty — Delay in Giving Notice of Intention to Repudiate the Contract — Estoppel. Where a packing company purchases and uses a part of a herd of mortgaged cattle without payment therefor reaching the mortgagee, and upon a demand for an accounting, being given the privilege of handling and marketing the remainder of the cattle, guarantees the payment of any deficiency in the mortgage debt, and the company upon being sued on the guaranty defends upon the ground that it had been induced to make it by a false representation of the number of cattle on hand and had rightfully repudiated it, a showing that for thirty-nine days after discovering the real facts the company failed to notify the mortgagee of its purpose to deny liability is fatal to such defense, where no excuse is shown for such delay and where during that period the cattle are disposed of by a trustee in bankruptcy of the mortgagor.</p> <p>3. -Defense of Fraud — Duty of Guarantor. In such a case, in order for the packing company to avail itself of such defense, it must either offer to pay the mortgagee for the cattle it had used prior to the execution of the contract of guaranty or show grounds relieving it from liability on that account.</p>

Error from Russell district court; James H. Reeder, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>1. Partition — Petition—Description of Respective Interests of Owners — Demurrer. A petition for partition, the allegations of which bring the case within the reason of the statute by setting forth the conveyances from which the several interests of the parties appear, is not demurrable because it fails to allege in terms the respective interests of the owners.</p> <p>2. - Cotenants — Right to Partition. One who owns in fee simple the undivided one-half interest in real estate can maintain a suit to compel partition as against his cotenants who have only a life-interest in the other undivided half.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Record — Correction—Clerical Mistakes. Mere clerical omissions and mistakes in the orders and judgments of a court of record may be corrected by the court at any time, when it is clearly apparent from the whole record in the case what the true entry should have been.</p> <p>2. Parent and Child — Adoption — Immaterial Error in the Order. Where proceedings are had in the probate court for the adoption of an infant, and it clearly appears from the record of such proceedings that all interested parties were present in court, and that the court made an order that such infant be adopted, the mere fact that the name of the mother of the infant appears in the order of adoption where the name of the adopting'parent should have been written is immaterial and will be disregarded, when it is clearly apparent from such record that the name was written there by an oversight and mistake and that the name of the adopting parent was intended.</p> <p>3. ■ — - Avoidance of the Order by Heirs of the Adopting Parent. Where an order of adoption is made by a probate court at the request of the adopting parent, and such order is acted upon by all parties as valid, and the adopting parent takes and keeps the custody and control of the adopted infant and treats him as his own child for several years, and' then dies, the surviving heirs and legal representatives of such deceased adopting parent cannot avoid the legal effect of the adoption proceedings for any mere irregularities or clerical mistakes.</p>

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

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

<p>Appeal from Crawford district court; Arthur Fuller, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Opinion of a Juror — Challenge for Cause. Where in a criminal trial the examination of a juror upon his voir dire discloses that he has formed an opinion as to the existence of a fact material to be proven on the trial, and upon his belief of such fact has formed an opinion as to the defendant’s guilt, such juror should be excused from service upon a challenge for cause.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Jury and Jurors — Challenge for Cause — Question of Fact.— The trial provided for by statute (Gen. Stat. 1901, §§ 5647, 5648) of a challenge to a juror for cause is a summary hearing upon a question of fact, and the decision thereof is analogous to a finding of fact upon the decision of a motion.</p> <p>2. .- Finding Supported by Evidence — Supreme Court Not Bound Thereby. In such a case the ordinary rule of this court applicable to the determination of facts by a jury or court in the trial of the contested issues of an action — that it will not disturb such finding if supported by some evidence— does not obtain.</p> <p>8. - Opinion — Disqualification. In such summary hearing of a challenge to a juror on the ground of predetermined opinion, formed or expressed, the real question is whether the juror knows facts or has received information of facts which he believes to be true and from such facts has a settled conviction or opinion as to the issue or as to any material fact to be tried by the jury.</p> <p>4. - Review of Finding by Trial Court on a Challenge for Cause. On an appeal this court will review the evidence on such summary hearing, giving such weight to the finding of the trial court thereon as it appears entitled to, but will not disturb such finding unless satisfied that prejudicial error has occurred therein.</p>

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

<p>•SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations — Prohibition of Operation of Pool-tables. The legislature may authorize cities of the third class to prohibit the maintenance and operation of pool-tables for hire within the city limits.</p> <p>2. - Police Power — Valid Ordinance. A prohibitive ordinance enacted pursuant to legislative authority is not invalid because it suppresses pool-tables lawfully maintained at the time the ordinance goes into effect or because it suppresses pool-tables theretofore conducted in a quiet and orderly manner.</p> <p>3. •-• Motive in Enacting an Ordinance — Review. The motives of city officials in enacting such an ordinance and in prosecuting an offender against it cannot be investigated by this court in an appeal from a conviction under it.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Violation of Live-stock Inspection Statute— Information. An information drawn under section 27 of chapter 495, Laws of 1905, relating to the inspection by the live-stock sanitary commissioner of cattle imported from places beyond the south line of the state, which charges a</p> <p>‘ want of inspection by the live-stock sanitary “commission,” and charges generally the want of any inspection, is not invalidated by the omission of the terminal syllable “er” from the word used to describe'the official having power to make the inspection.</p> <p>2. Constitutional Law — Inspection of Live Stock — Regulation of Interstate Commerce. The statute referred to is a reasonable inspection law necessary for the protection of the cattle of the state against the ravages of contagious and infectious diseases, and is not invalid as a regulation of interstate commerce.</p>

Original proceeding in habeas corpus. STATEMENT. This is an original proceeding in habeas corpus.

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Plea in Abatement — Insanity—Void Commitment. Where a person charged with a felony is arraigned before an examining magistrate, and files a plea in abatement, founded upon an adjudication regularly and duly had before a probate court of that county that the defendant is insane, the examining magistrate, in the absence of any other showing or adjudication upon the question of the defendant’s mental condition, cannot proceed with such examination or hold the defendant to bail to answer for such crime, and a commitment in default of bail under such circumstances is void.</p> <p>1. Criminal Law — Mental Disability of Defendant at the Time of Trial. No person can be compelled to answer for a crime who at the time is incapable of doing so in a rational manner on account of mental disability occurring after the alleged commission of the offense charged against him.</p> <p>2. —;— Jurisdiction to Determine Defendant’s Mental Fitness for Trial. The court having jurisdiction of a person charged with the commission of a crime has the exclusive right and power to determine the mental fitness of the defendant to make proper answer and defense to .such charge, unless otherwise provided by statute.</p> <p>3. ■-• Duty to Make Inquiry — Forcing Insane Person to Trial — Void Proceedings. Where upon the trial of a person charged with a crime it is claimed that he is then unable to make answer and defense thereto in a rational manner, because of mental incapacity which has arisen since the alleged commission of the offense, it is the duty of the court where such trial is pending to make inquiry concerning such disability, and, if found to exist, to stop further proceedings in the trial until such disability has been removed. Failure in this respect, whereby an insane person is forced into trial, will render all subsequent proceedings void.</p> <p>4. - Verdict of Insanity Not Conclusive Proof of Defendant’s Incapacity for Trial. A verdict of insanity found under chapter 99 of the General Statutes of 1901 does not conclusively show that the person therein named is a lunatic or mentally unfit to answer or make defense to a criminal charge against him.</p> <p>5. Habeas Corpus — Burden of Proving Void Proceedings. A ■writ of habeas corpus can only be issued in behalf of a person who is confined in prison when it is shown that the legal proceedings under which he was committed are void, and the burden is upon the petitioner affirmatively to make such showing.</p> <p>6. Practice, Supreme Court — Presumption as to Regularity of Proceedings. Where the record fails to show what action was taken by the court with reference to some particular matter in a- proceeding it will be presumed, in the absence of any showing to the 'contrary, that the action of the court was regular and in accordance with the law.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Ouster Proceeding — Parties. “For the purpose of procuring a decree enjoining a corporation from acting as such on the ground of the nullity of its organization it is not necessary that the individual corporators or officers of the company be made defendants and process be served upon them as such; but the state by which the corporate authority was granted is the proper party to bring such an action, through its proper officer, and it is well brought when brought against the corporation alone.” (New Orleans Debenture &c. Co. v. Louisiana, 180 U. S. 320, 21 Sup. Ct. 378, 45 L. Ed. 550.)</p> <p>2. Supreme Court — Jurisdiction in Ouster Proceeding — Restraining Order. In such an action by the state the supreme court, upon decreeing the incorporation null and void and ousting the corporation from the exercise of corporate power, may make such order restraining the officers, directors, stockholders and others assuming to act by virtue of their official relation to the corporation or by the authority or power thereof as may be necessary to make the decree of ouster effective.</p> <p>3. —-- Injunction — Original Jurisdiction. In such a case the supreme court has no jurisdiction to grant an injunction against another corporation or individual to protect the rights of a third person or corporation.</p>

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

Error from Allen district court; Travis Morris, judge pro tem. STATEMENT. This was an action for the possession of the north half of the northeast quarter of section 11, township 2.6, range 20, in Allen county, brought by Alexander Brandon- against Newton Ard. Since the action was commenced Alexander Brandon died, and it has been revived in the name of his executors and heirs. The defendant recovered judgment and the plaintiffs bring the case here for review.

<p>SYLLABUS BY THE COURT.</p> <p>1. Administrators — Compromise of a Claim — Condition Precedent. An administrator has no authority to accept less than its full amount in satisfaction of a demand that accrued in the lifetime of his decedent, except by consent of the probate court. The case of JEtna Life Ins. Co. v. Swayze, Adm’x, 30 Kan. 118, 1 Pac. 36, followed.</p> <p>2. ■-- Set-off — Claim Purchased at a Discount. In a suit by an administrator to collect a debt due to an insolvent estate a claim which accrued in the lifetime of the decedent, and which the defendant has purchased at a discount since his death, cannot be used as an offset.</p> <p>3. Judgments — Collateral Attack — Limitation of Actions. An order of the probate court allowing a claim against the estate of a decedent is not open to a collateral attack upon the ground that the statute of limitations had run against such claim before its allowance.</p>

Error from Osage district court; Robert C. Heizer, judge. STATEMENT. July 16, 1887, H. E. Norton, who resided in Lyon county, owned land in Chase county. At that date he was indebted to M. B. Kelso in the sum of $2100, to secure which he and his wife, Helen R. Norton, executed a mortgage on the Chase county land. No payments having been made on the debt, Kelso commenced a suit in the Chase county district court, September 13, 1889, to foreclose his mortgage.

<p>SYLLABUS BY THE COURT.</p> <p>1. Title and Ownership — Adverse Possession — Mistake as to Boundary. One who has title to a certain quarter-section of land, and by mistake as to the boundary-line occupies a strip of land in an adjoining section owned by another, without any intention to take and hold land beyond the section-line or to claim land which does not belong to him, will not acquire title to such strip by adverse possession.</p> <p>2. Evidence — Record Containing an Original Payer. A volume of .the records of permanent surveys of the county surveyor, forming a part of the public records of the county, is not discredited as evidence because it may contain an original paper of a survey instead of a copy of such paper.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Divorce and Alimony — Judgment—Impeachment—Fraud. If in a suit for divorce and alimony the plaintiff be granted a divorce, but through the fraud of the defendant the judgment makes no provision for alimony, the judgment may be impeached for fraud as in other cases, and proper alimony may be awarded without disturbing the decree for divorce.</p>

Error from Jackson district court; C. F. Hurrell, judge. STATEMENT. The plaintiff in error, having at the time no interest whatever in or lien upon the land, purchased a tract of land which was encumbered by three mortgages.

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

MOORE, judge. STATEMENT. The defendant is a druggist and pharmacist. He held a permit to sell intoxicating liquor under the prohibitory law in Morris county. On the 18th day of April, 1906, he was convicted in the district court of selling liquor for medical purposes without requiring the applicant to make the affidavit provided by law and without the name of the applicant being subscribed thereto in ink.

<p>Appeal from Morris district court; OSCAR L. MOORE, judge.</p>

Original proceeding in mandamus. STATEMENT. This is an original action in mandamus, brought against the judge of the district court of Douglas county to obtain from him a ruling upon a motion for a new trial.

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Public Lands — Railroad Grant — Vesting of Title — Notice to Purchasers. The act of congress of July 26, 1866, granting to the Union Pacific Railroad Company, Southern Branch (now the Missouri, Kansas & Texas Railway Company), a right of way 200 feet wide through what came to be known as Osage Ceded Lands in this state, was an absolute grant in prsesenti, vesting title from the date of the passage of the act, and all persons subsequently purchasing any of such lands did so subject to, and with notice of, the railroad company’s rights.</p> <p>2. Evidence — Location of Road — Approval by the President Presumed. Under the facts of this case the approval by the president of the United States of the definite location of the Missouri, Kansas & Texas railroad through the lands mentioned will be presumed.</p> <p>3. Title — Adverse Possession. Private individuals cannot acquire title by adverse possession to any portion. of the right of way named.</p>

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

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

Error from Cloud district court; William T. Dillon, judge. STATEMENT. The plaintiffs brought suit before a justice of the peace on a written and printed order for $196 worth of jewelry, and alleged that they shipped the goods as directed; that the defendant received the same; and that the price thereof was due and unpaid.

Error from Woodson district court; Oscar Foust, judge. STATEMENT. In an action against the Missouri, Kansas & Texas Railway Company J. H. Fry sought to recover damages for an alleged delay in the shipment of 107 head of cattle from Neosho Falls to Kansas City, Mo. The cattle were loaded in five cars, two of which contained forty-four head consigned to a commission company at Chicago, with the privilege of the Kansas City market.

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

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

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

Gillett, judge. STATEMENT. The appellants were tried jointly in the district court of Barber county, were both convicted of murder in the first degree, and jointly appeal to this court. The uncontroverted facts are as follow: The appellants are brothers, Edward Clark Newton being at the time of the occurrence about twenty-one years of age and a large man, and Mark Morris Newton being about seventeen years of age and considerably smaller than his brother.

Error from Cloud district court; Hugh Alexander, judge. STATEMENT. Ralph Laughlin, an infant, was injured December 6, 1902, by being run over by a freight-car, part of a train consisting of an engine and two box cars backing east on the tracks of defendant company in its railway yards near the station at Concordia. His left leg was \/ cut off between the knee and ankle.

<p>Error from Lyon district court; Frederick A. Meckel, judge.</p>

Error from Montgomery district court; THOMAS J. Flannelly, judgé. STATEMENT. • On the 19th day of December, 1900, the plaintiffs in error (plaintiffs below) were the owners of the lands in controversy and occupied the same as a residence and homestead.

<p>Error from Clark district court; Edwabd H. Madison, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Consolidation of Actions. A judgment will not be reversed on account of the refusal of the trial court to consolidate the action in which it was rendered with another merely because such a consolidation might have been proper. To procure a reversal on account of such ruling the party aggrieved must show that his rights have been substantially prejudiced thereby.</p> <p>2. -;— Prejudice Not Shown, nor Presumed. A husband and wife severally owned tracts of land which adjoined and which were used as one property, but not as á homestead. A railway company condemned a right of way across both tracts. Each separately appealed from the award of damages made by the commissioners on account of the land taken from the corresponding tract. A motion made by the landowners in the district court to consolidate the cases was denied. Reid, that there is no presumption that such ruling was prejudicial to the substantial rights of the parties, and that in this case no such prejudice is shown.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Intoxicating Liquors — Information Charging Gift to Minor— Proof of a Sale — Variance. In view of the other provisions of the prohibitory law the section thereof which forbids the giving of intoxicating liquor to minors must be construed to have reference only to gifts properly so called, and not to sales, and therefore a conviction upon an information drawn under, that section cannot be sustained by proof that the defendant sold intoxicating liquor to a minor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Former Jeopardy — Amendment of Record of Former Trial. A'plea of former jeopardy was based upon the failure of the record of a former trial to show affirmatively that the jury were discharged for the reason that the court found they were unable to agree. Before the plea was heard the court made an order correcting the record so as to speak the truth, and as corrected it showed that on the former trial the court inquired of the jury and upon their answers found they could not agree. Held, first, that the court possessed ample power to correct its record in accordance with the fact; second, that upon the amended record the plea was properly overruled.</p>

<p>Appeals from Cowley district court; Carroll L. SWARTS, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Murder — Conspiracy—Requisite Proof. To render one who is not present and does not aid or assist in a murder guilty thereof by reason of a former conspiracy with the slayer, it must appear that the murder was within the contemplation of the conspiracy or was the natural and probable outcome thereof.</p> <p>2. -Probable Result — Conspiracy Not Proved. A conspiracy to steal money from a barn, where it was supposed to be hidden, is not such a conspiracy as would naturally and probably result in the murder of the owner of the money at a place entirely - remote from the barn and under circumstances in no way connected with obtaining the money from-the barn.</p> <p>3. -Erroneous Instruction — Absent Conspirator. In such a case, and in the absence of evidence showing.any connection between the conspiracy and the murder, except that the murder was for the purpose on the part of the slayer of obtaining the money, it is error to instruct the jury that they may find the absent conspirator guilty of the murder if they find the murder was the natural and probable outcome of the conspiracy.</p> <p>4. Criminal Law — New Trial — Newly Discovered Evidence. Section 5652 of the General Statutes of 1901 extends the provision of the civil code (Gen. Stat. 1901, § 4754) relating to new trials on the ground of newly discovered evidence to criminal procedure, although a new trial on this ground is not authorized by the express provisions of section 5713, providing the grounds upon which a new trial in criminal cases . may be granted.</p> <p>5. —:- Sufficient Showing for a New Trial. When an application for a new trial in a criminal case is made on this ground, and it conclusively appears that the new evidence is in fact newly discovered, that it is material for the party applying, and could not with reasonable diligence have been discovered and produced on the trial, and that the effect of the evidence is doubtful or impossible to determine, a new trial should be granted.</p>

Error from Cherokee district court;- William B. Glasse, judge. STATEMENT. On April 6, 1889, the city of Galena, by ordinance No. 61, granted to what is now known as the Galena Water Company the right to construct and operate a system of water-works in that city.

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Parties—Taxpayer—Time of Beginning Suit. An owner of property may, under chapter 334 of the Laws of 1905, maintain a suit against the mayor and council to enjoin them from entering into any contract for the paying of a street of the city, or the doing of any illegal act which may result in the creation of a public burden or the levy of any illegal tax, charge or assessment, although the amount to be charged against his property has not been ascertained.</p> <p>2. Municipal Corporations — Manner of Awarding Paving Contracts. The statute governing cities of the second class does not require that contracts for the paving of streets shall be let to the lowest bidder, but the manner of awarding such contracts is left to the sound discretion of the mayor and council.</p> <p>3. - Ordinance Requiring Competitive Bidding Not Binding. In such a case the mayor and council cannot tie their own hands nor limit the discretion vested in them by the passage of an ordinance requiring competitive bidding, and such ordinance will not prevent ■ them from contracting in good faith for a pavement in which patented articles or processes are used.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — ■New Trial — Newly Discovered Evidence. A new trial will not be granted on the ground of newly discovered evidence unless it clearly appears that the testimony is new, material, not 'cumulative, and that it could not with reasonable diligence have been obtained at the time of the trial. ’</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Sale of Mortgaged Personalty — Proof of Intent to Defraud Essential. Proof of a purpose to defraud is essential to a conviction under section 4259 of the General Statutes of 1901, forbidding the sale of mortgaged personal property without the written consent of the mortgagee, and in a prosecution under such section an instruction is erroneous which undertakes to enumerate all the elements of the offense and makes no mention of the wrongful intent of the defendant.</p> <p>2. -Fraudulent Concealment — Allegation and Proof — Variance. Where an information charging the fraudulent concealment of mortgaged personal property describes the mortgage as one executed by the defendant and his wife to secure a note signed by them, and the evidence shows that while the mortgage was signed by both, and included an assumption of liability for any deficiency, the note secured was signed by the defendant alone, the variance is not material, no prejudice being shown.</p> <p>3. - Complaint — Warrant—Separate Counts. It is not required that different felonies prosecuted upon the same complaint and warrant shall be therein stated in separate counts.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Information — Bobbery — Duplicity. Where an information charges, in one count, robbery in the first degree, and, in describing the' assault, charges facts which constitute the crime of an assault with a deadly weapon with intent to rob, such information is not by reason thereof bad for duplicity.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Rerly — -New Matter — Departure. New matter in the reply which the plaintiff is forced to plead in order to meet the alie- • gations of the answer will not constitute departure if it does ■ not contradict the facts stated in the petition, and if it is not adopted as a new basis for relief in place of the cause of action presented by the petition.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Publication Service — Application to Open — Requisites of Answer. An answer filed in connection with an application to open a judgment rendered without other service than by publication must be full and complete as a pleading , by the defendant in the cause. It need not present a defense coextensive with the entire demand, or with every demand, of the petition, but whatever defense it proposes must be complete and perfect in the sense of fully overcoming the portions of the plaintiff’s claim against which it is directed; and it must subvert sufficient of the cause of action set fbrth in the petition to make it worthy of consideration in the doing of substantial justice.between the parties.</p> <p>2. -Foreclosure of Tax Lien — Opening Judgment — “Full Answer.” An answer filed in connection with an application to open a judgment rendered upon publication service under the act of 1901 relating to the collection of delinquent taxes on real estate, which is otherwise sufficient, is a full answer if it shows that one per cent, of the judgment consists of taxes intentionally levied for specific purposes not sanctioned by any provision of law, and interest on such taxes.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deed — Date of Sale., The provision of the statute' that a tax deed shall be substantially in a prescribed form, which-provides for a recital of the date of sale, implies a requirement that in order to be good on its face it shall show on what day the sale was made, and such requirement is not met by a showing that it was made on one or the other of two designated days, without indicating which.</p> <p>2. - Void on Its Face — Recorded Five Years. A recital in a tax deed covering several disconnected tracts that they were sold on the 2d and 4th days of September will be interpreted as meaning that some of them were sold on i¿Jie second and some on the fourth, and where there is nothing in the deed to indicate upon which of the two days a particular tract was sold the deed will be held invalid as a conveyance of that tract, even when attacked after having been of record for five years.</p>

Error from Wyandotte district court; J. McCabe Moore, judge. STATEMENT. The plaintiff in error, by his next friend, brought this action in the district court of Wyandotte county against the defendants, as copartners, to recover damages for injuries which he received in operating a ripsaw in the defendants’ factory.

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Incompetent—Trial to Court — Reversal of Judgment. A judgment rendered in a case heard without the intervention, of a jury will not be reversed on account of the admission' of incompetent evidence, unless the record discloses that there was no competent evidence to support it or in some other way shows affirmatively that the improper evidence affected the result.</p> <p>2. Pleading — Negative Pregnant — Construction — Immaterial Error. Where a pleading by reason of being in the form of a negative pregnant is technically to be construed as an admission of certain material facts, the refusal of the trial court to giv.e it that construction in a case decided after a full trial upon the merits is not a ground for reversing a judgment where the losing party suffers no injury thereby further than in being deprived of the benefit of such admission.</p>

Errors from Rush district court; Charles E. Lob-dell, judge. STATEMENT. Each of the above cases was commenced in the district court of Rush county on petitions substantially the same, except as to the name of the plaintiff, the description and value of the property alleged to have been destroyed by the fire, and the amount of judgment prayed for.

<p>SYLLABUS BY THE COURT.</p> <p>1. Sales — Acceptance—Waiver of Defects in Quality. The acceptance of merchandise without objection, where an inspection could be made, is a waiver of defects in quality, in the absence of a warranty surviving acceptance.</p> <p>2. - Failure of Buyer to Inspect. Where merchandise is sold subject to inspection after delivery and before acceptance, if the purchaser accept the property without making any objection and sell it upon the market he must pay the contract price, whether he actually inspected it or not.</p>

<p>Error from Cloud district court; William T. Dillon, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deed — Description—Several Tracts. Where a tax deed covering several tracts first describes, them in full and assigns to each a number, and thereafter intelligibly refers to them respectively by number only, the omission of any further description does not render the deed voidable.</p> <p>2. - Tracts Widely Separated, or Lying in Different Districts. The rule announced in Cartwright v. Korman, 45 Kan. 515, 26 Pac. 48, that where several disconnected tracts are included in the same tax deed the expression in the granting clause “the real property last hereinbefore described” . will be interpreted as including all of them, where it follows recitals in which they áre collectively referred to as “said property,” is not affected by the circumstance that the several tracts included in the deed are widely separated and lie in different taxing districts.</p>

Error from Wyandotte court of common pleas; William G. Holt, judge. STATEMENT. David J. Read, since deceased, purchased a stove of plaintiff in error, made partial payment at the time of purchase, and gave his promissory note, payable in instalments, for the balance of the purchase-price. He also gave a mortgage on the stove to secure the payment of the note.

Error from Edwards district court; Charles E. Lob-dell, judge. STATEMENT. The First National Bank of Hutchinson brought this action against George W. Lightner. Two causes of action are declared upon in the petition: The first, upon a check for $1000, drawn in favor of the bank by defendant; the second, upon an order for $1500, drawn by the Snyder Planing-mill Company upon the bank, and accepted by defendant.

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

<p>SYLLABUS BY THE COURT.'</p> <p>Contracts — Exchange of Real Estate — Construction. A contract for the exchange of real estate provided: “Both parties to give warranty deeds and abstracts showing titles. ■ It is agreed that $1500 shall be liquidated damages in case either party fails or refuses to carry his part of this contract.” Held, that before either party can recover the stipulated amount of damages he must tender an abstract showing a perfect record title in himself, free from doubt or outstanding color of title.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Wills —: Construction — Conditional Gift — Remainder. A will contained the following provision: “I give and devise to my daughter, Elizabeth Yambert, eleven hundred dollars aside of what she has already received, and I appoint my sons, Jacob Yentzer and Benjamin Yentzer, after my death to purchase with the above eleven hundred dollars a home for the above-named Elizabeth Yambert, to be for her use during her life and after her death the property to fall to her children.” Held, that this provision does not express an absolute and unconditional gift of the sum of money named to Elizabeth Yambert, but requires its investment in real estate for her use during her life, with remainder in fee to her children.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statutory Construction — Enlarging the Boundaries of a City — Powers of County Commissioners. Section 1172 oF the General Statutes of 1901, authorizing the county commissioners to make an order enlarging the boundaries of a city of the third class'at the request of the city council, if satisfied that it is to the city’s interest and will not cause manifest injury to individuals, is to be interpreted, in view of the difference between its phraseology and that of related legislation enacted at the same session, as intended to confer upon the commissioners the legislative power to determine whether such change shall be made.</p> <p>2. Words and Phrases — “Appeal.” The word “appeal,” when used in a statute, does not necessarily imply the removal of a controversy from one tribunal to another to be there tried as a new proceeding, nor has it any absolutely fixed and definite meaning. It is to be interpreted like other expressions, according to the context and by the aid of the ordinary rules of construction. ,</p> <p>3. Constitutional Law — Statute Held Not to Confer Legislative Power upon a Judicial Tribunal. The section (Gen. Stat. 1901, § 1175) which grants an appeal from an order of the board of commissioners enlarging corporate boundaries, made under the provisions of the section referred to in paragraph 1, is to be construed as authorizing a review only of so much of the action of the board as is judicial in its nature. It is effective at least to the extent of enabling persons aggrieved to carry to the district court the question whether manifest injury would be done to their property by the proposed change, and if an affirmative answer is given to have the order set aside as having been made without authority.</p>

Error from Cowley district court; Carroll L. Swarts, judge. STATEMENT. This was an action to recover damages for an alleged breach of contract. The plaintiffs in error were plaintiffs below and will be referred to as plaintiffs here. They are engaged in the manufacture of soda-water at Winfield, Kan. The defendant is a corporation engaged in the manufacture of glass bottles at Terre Haute, Ind.

<p>SYLLABUS BY THE COURT.</p> <p>1. Judicial Sale — Interest of an Infant-r-Void for Want of Notice, An infant two months old cannot be devested of real estate to which he owns the fee-simple title by a judicial proceeding to which he was not a party, of which he had no notice, and in which he was not represented by guardian ot otherwise.</p> <p>2. - Recovery of Land, by Infant — Limitation of Action. Lands sold under such a proceeding may be recovered in a suit brought for that purpose, if the suit be commenced within two years after the infant owner reaches the age of majority.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Demurrer — Evidence—Appealable Order. A ruling sustaining a demurrer to evidence is an appealable order; that is, one which may be reviewed by independent proceedings in error begun immediately, without waiting for a final judgment to be rendered.</p> <p>2. - Case-made — Extension of Time — Motion for a New Trial. Where a demurrer to evidence is sustained a motion for a new trial is neither necessary nor proper, and the fact that such a motion is filed will not’ enlarge the time within which a case may be made upon which to review the ruling on the demurrer.</p> <p>3. Practice, Supreme Court — Review of Final Judgment — Prior Appealable Order — Limitation. In a proceeding in error brought to' procure the reversal of a final judgment the supreme court may examine and pass upon the correctness of a prior ruling which is itself an appealable order, provided it was made within a year preceding the filing of the petition in error, and such ruling may be preserved for review in this manner by a case-made served within ten days after the rendition of such final judgment, or within an extension of time granted during that period.</p> <p>4. Pinal Judgment — Entry. Where a demurrer to a plaintiff's . evidence is sustained, and thereafter a judgment is rendered in favor of the defendant for the costs of the action, in the absence of some special reason to the contrary this will be deemed a final judgment, although the entry neither refers to the defendant’s going hence without day or to the plaintiff’s taking nothing by his action nor contains any equivalent expression.</p> <p>5. Railroads — Obstruction of Watercourse by a Bridge. The evidence examined and held to require the overruling of a demurrer.</p>

Error from Butler district court; Granville P. Airman, judge. STATEMENT. The Missouri. Pacific Railway Company owns and operates a line of railway into and through Butler county, with a side-track leading to a stone-quarry and crusher which are owned and operated by Frazier and Vanderhoof. Plaintiff in error, Peter C. McCallion, was in the employ of Frazier and Vanderhoof, working-in and about the quarry and crusher.

Error from Sedgwick district court; Thomas C. Wilson, judge. STATEMENT. C. H. Sumption contracted with the city of Wichita to furnish the necessary labor and material and construct a sewer in that city. The contractor was required to give a bond to secure laborers and material-men, as prescribed by sections 5130 and 5131 of the General Statutes of 1901. The plaintiff in error became such security.

Mqore, judge. STATEMENT. The defendant was arrested and tried on a charge of murder in the first degree, and was convicted of, and sentenced for, murder in the second degree. There appears to have been but one eye-witness to the tragedy, and his evidence was not produced at the trial. The homicide occurred in November, 1903, and the trial in March, 1906. The defendant admitted the killing and pleaded self-defense.

<p>SYLLABUS BY THE ,COURT. ■</p> <p>Criminal Law — Arrest Without a Warrant — Writ of Habeas Corpus Denied. Evidence taken on a preliminary examination of petitioner on the charge of assaulting an officer who attempted to arrest him without a warrant examined, and held sufficient to justify holding the petitioner to the .district court.</p>

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

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

<p>1. Damages — Breach of Contract to Marry — Evidence and Verdict. Evidence examined in an action for damages for breach of a promise to marry and held to support a verdict for plaintiff,</p> <p>2. - Verdict — Approval — Comment by Trial Court. It was said that the trial court’s comment upon the verdict was not equivalent to a disapproval thereof.,</p>

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

<p>Damages — Injury to Traveler — Demurrer to Evidence. In an ' action to recover for injuries alleged to have been sustained by reason of the negligent operation of defendant’s streetcars it was held that a demurrer to plaintiff’s evidence was properly overruled.</p>

<p>Damages — Deceit—Financial Condition of a Third Party — Evidence and Verdict. In an action of deceit for misrepresenting 'the financial condition of another the evidence was held sufficient to support a verdict for plaintiff.</p>

<p>Tax Deed — Description of Land — Surplusage. It was said that a tax deed conveying a single tract of land was not void on - its face because in the deed expressions were used that would be proper if several tracts were actually conveyed, such expressions being treated as surplusage.</p>

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

<p>Novation — Pleading—Demurrer. A demurrer to a plea of payment by way of novation was said to have been properly sus- ' tained.</p>

<p>Jury and Jurors — Indefinite Finding — Burden of Proof. Where, in answer to certain special questions by which defendant sought to establish the contributory negligence ofi plaintiff, the jury answered “We do n’t know,” it was said the answer was equivalent to a finding that the evidence did not prove such contributory negligence.</p>

<p>Damages — Injury to Employee — Contributory Negligence — Special Findings and General Verdict Irreconcilable. In an action by a servant to recover for personal injuries the special findings were said to show contributory negligence by the plaintiff, and as those findings and the general verdict were irreconcilable judgment for the plaintiff was reversed.</p>

<p>1. Damages — Injury by Fire — Instructions—Immaterial Error. In an action to recover for injury by a fire it was said that under the circumstances and the instructions given material error was not shown by the refusal to give an instruction that if plaintiff allowed dry grass to remain on its premises, so that fire could readily start therein, it should be considered as a circumstance tending to prove contributory negligence.</p> <p>2. Practice, District Court — Special Questions — Form, it was said that propounding special questions in a negative and leading form justified their rejection.</p> <p>3. Practice, Supreme Court — Instruction Broadening Issues— Special Finding. It was held immaterial whether an instruction broadened the issues with regard to the character of defendant’s negligence,- the jury having specially found the existence of a form of negligence alleged in the petition.</p>

<p>Damages — Injury by Fire — Instructions—Verdict and Evidence. In an action for damages for the setting out of a fire by defendant’s engine it'was said that the instructions were proper, and the verdict for plaintiff was not without support in the evidence.</p>

<p>Municipal Corporations — Public Improvements — Void Proceedings — Curative Act. The act of 1903 providing that where special assessments by a city for public improvements are irregular or void for any cause whatsoever the mayor and council may relevy such special assessments in the manner provided was said to cover proceedings that were void because the petition for the improvements lacked the required number of signatures.</p>

<p>1. Damages — Injury to Child — Demurrer to Evidence. In an action by a parent to recover for injuries to a child a demurrer to plaintiff’s evidence was held to have been properly sustained.</p> <p>2. - Contributory Negligence — Age of Child. Evidence of. the child, who was twelve years old, reviewed, and held to forbid the relaxing of the rule that it is negligence, as a matter of law, for one to walk or stand upon a railroad-track when there is no necessity or occasion for so doing.</p>

<p>Mistake — Deed and Collateral Agreement — Reformation of the Latter. The heirs of an estate deeded to the administrator certain land in consideration of the estate’s indebtedness to him, and a collateral agreement was made stipulating that the administrator should divide between the heirs anything derived from the land in excess of the debt owing to him. The consideration recited in the deed was more than double the sum stated in the collateral agreement as the amount of such indebtedness. In a suit by an heir for a share of the land, the court found that a mistake was made in inserting the consideration in the collateral agreement, ordered the agreement reformed, and gave judgment for defendant, which was affirmed.</p>

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

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

<p>Damages — Injury to Passenger — Examination by Physician. It was said that the trial court had the power, in a personal-injury case, to require a physical examination of the plaintiff’s injuries by physicians appointed by the court.</p>

<p>Error from Lyon district court; Frederick A. Meckel, judge.</p>

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

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

<p>Guardian’s Sale — Collateral Attack — Limitation of Actions. In a suit to recover land from the grantee of a purchaser at a guardian’s' sale the defendant pleaded the five-year statute of limitation, and a judgment in his favor was affirmed.</p>

<p>Practice, Supreme Court — Review of Evidence — Bill of Exceptions. It was said that an agreed statement of facts could not be examined by this court where it was not made a part of the record by a bill of exceptions.</p>

<p>Practice, Supreme Court — Review of Evidence — Depositions. The court refused to determine the disputed questions of fact, uninfluenced by the .conclusions of the trial judge, though most of the evidence was in the form of depositions.</p>

<p>Appeal from Linn district court ;■ Walter L. Simons, judge.</p>

<p>1. Indirect Contempt — Jurisdiction of Defendant in Injunction Suit. The fact that no summons was issued in a suit to enjoin the maintenance of a liquor nuisance, where defendant’s counsel appeared and was present when the injunction order was entered, was said to afford no ground for the dismissal of a proceeding for indirect contempt.</p> <p>2. - Affidavit and Attachment — Proof—Variance—Notice of Offense Charged. An attachment was issued against defendant for violating an injunction. The court found defendant guilty of contempt upon evidence other than that . upon which the attachment was issued. The accusation charged a different offense from the one mentioned in the first affidavit, but the hearing was continued for several weeks. Judgment affirmed.</p>

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

<p>Information — Verification—Authority. Affidavits charging the unlawful sale of liquor were acknowledged before a notary. Afterward the notary was appointed assistant attorney-general, and signed a verified information, to which the affidavits were attached. A motion to quash was said to have been properly denied.'</p>

<p>Railroads — Live Stock Carried Beyond Destination. A railway company held liable for damages resulting from its negligently carrying cattle to a different destination than that specified by the shipper.</p>

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

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

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

<p>Case-made — Settlement—Jurisdiction. Chapter 320 of the Laws of 1905 was said not to confer power upon a judge to settle a case-made who had, prior to the passage of the act, lost jurisdiction.</p>

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

<p>1. Service by Publication — Voidable Affidavit. An affidavit for publication service upon which a judgment was based did not follow the precise language of the statute in stating that personal service could not be made within the state. It was said the required fact appeared inferentially from the statement that the parties to be served'were absent from the state, and the affidavit was voidable only.</p> <p>2. Judgment — Fraud—Collateral Attack. It was said that the judgment of a court having jurisdiction of the parties and the subject-matter of an action could not be attacked collaterally for fraud in obtaining it.</p>

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

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

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

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

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

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

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

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

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

<p>Error from Johnson district court; Charles A. Smart, judge pro tem.</p>