Volume 75 — Kansas Reports

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Collection of Delinquent Taxes — Commissioners Not Limited to One Proceeding. Chapter 392 of the Laws of 1901 does not necessarily limit the proceedings to have liens adjudged for delinquent taxes and to obtain decrees for the sale of the real estate involved to one action in any county for delinquencies occurring the requisite length of time before the board of county commissioners makes the order provided for therein.</p> <p>2. -■ Court May Consolidate Actions. After the board of county commissioners has made the order directing the county attorney to institute proceedings for such a purpose against all persons owning real estate so delinquent the county attorney may proceed to comply with such order in one or more actions, subject to the power of the trial court to consolidate such actions as may seem proper and to apportion costs unnecessarily made.</p> <p>3. -Description of the Land. In such action any irregularity or informality in the description upon the tax-rolls of the lands taxed or upon the record of tax sales of the land sold will not invalidate the tax lien, provided the description is true, and no other property in the county answers the description, and the property may easily be found by any one acquainted with the description and the facts which exist and which may be easily ascertained on inquiry.</p> <p>3. Constitutional Law — Title of an Act. Chapter 392 of the . Laws of 1901 is not unconstitutional by reason of defective title.</p>

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

Error from Wilson district court; Leander Still-well, judge. STATEMENT. Prior to and since February 1, 1902, the defendants in error were the owners of about 200 acres of land lying in one body near the town of Buffalo, in Wilson county. This property was within the oil-and-gas belt of that county, which was then being actively developed.

<p>SYLLABUS BY THE COURT.</p> <p>1. Limitation op Actions — Proceeding in Error — Time of Filing Cgse-made. Where a statute which gives a party one year after final judgment to perfect his appeal to the supreme court-is repealed and amended by limiting the time within which such proceeding must be commenced, which amendment is enacted after the defeated party has had his case-made settled, the case-made must be filed before the expiration of the time limit in the amendment or this court cannot assume jurisdiction.</p> <p>2. - Prerequisites to the Beginning of a Proceeding in Error. A proceeding to reverse a judgment of the trial court is not commenced in this court within the provisions of section 7342 of the General Statutes of 1901 until the petition in error, with the case-made or transcript attached, is filed with the clerk, together with a precipe for summons.</p>

Error from Douglas district court; Charles A. Smart, judge. STATEMENT. 'On May 2, 1904, the city council of Lawrence passed a resolution that it was necessary for the public good and convenience that Rhode Island street in such city he paved and curbed between two designated points, specifying the material to be used, also that walks from the lot-lines to the curb-lines at the corners of streets be properly constructed, and all parkings be properly graded.

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Notes — Signed by Agents — Parol Evidence. In an action by the payee of a promissory note against the makers, signed “The Kansas City & Olathe Electric Ry. Co., Wm. Lackman, President, D. B. Johnson, Secretary,” evidence is admissible to show that the note was the obligation of the company and not of Lackman and Johnson.</p> <p>2. -Instruction as to Intention of Agents in Signing. In an action on such a note, in the absence of any evidence of representations on the part of the individuals signing the note, it is not error for the court to confine its instructions to the intentions of the individuals in signing the note. What the payee understood from the face of the note when it was accepted is not material.</p> <p>3. - Corporation Authorized to Execute Notes — Personal . Liability of Agents. In such an action, when the corporation is authorized by law to execute notes and bonds, it is not incumbent upon the officers whose duty it is to' sign the corporation’s notes, in order to escape personal liability, to show that the corporation had authority to execute notes or that the directors had in fact authorized them to execute the note for the corporation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Suretyship — Release of Surety■ — Discharge of Securities. If, as surety for her husband, a wife sign his note and secure it by a mortgage of her real estate, an agreement extending the time for the payment of the note which discharges her personal liability will discharge the mortgage security also.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Partition — Bight of Adult Owner. As a general rule every adult owner of an undivided fee simple estate in real property is entitled to partition, as a matter of right.</p> <p>2. -Life-estate of Cotenant Not a Bar. In such a case the fact that the cotenant holds an estate for life only in the property will not defeat the action.</p> <p>3. Wills — Estate Demised. The will involved in this case examined and held to devise an estate in fee and not for life only.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Trespass — Bill of Particulars. The most liberal interpretation should be given a bill of particulars in a trespass case before a justice of the peace.</p> <p>2. Practice, Supreme Court — Immaterial Errors in Procedure. This court is required by statute to look beyond defects and errors in pleadings and proceedings to ascertain if they in-fact affected the substantial rights of the party complaining of them.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition — Demurrer—Defeat of Parties. A demurrer to a petition for a defect of parties defendant should point out the parties improperly omitted, and where this is not done the overruling of the demurrer cannot be regarded as erroneous.</p> <p>2. Oil-and-gas Lease — Abandonment■ — Lessor’s Rights Not Waived. An oil lease provided that if a well was not completed on the leased premises within six months it could be kept in force by a quarterly payment of ten dollars until one was completed; that if at any time after a well was drilled six months should elapse without any revenue being, received therefrom and without any further drilling being done the lease should be deemed abandoned. An attempt was made to drill a well which proceeded until a depth of about 1000 feet was reached; then the casing was pulled out and the hole was plugged; no further drilling was done. More than six months thereafter the lessors brought a suit to declare the lessee’s rights lost by abandonment. Held: (a) There being evidence from which it might be inferred that the drilling done showed the existence of oil in sufficient quantity to warrant shooting, which was not attempted, the court was justified in finding that the operations described amounted to the drilling of a well within the meaning of the contract, and that the cessation of operations for six months thereafter constituted an abandonment of the lease, (b) The receipt of a quarterly payment after the operations described took place, but less than six months thereafter, did not commit the lessors to the position that a well had not been drilled, since it was'the completion of a well that was to end such payments, and the court was justified in further finding that a well had not been completed within the meaning of the lease.</p>

Error from Rice district court; Jermain W. Brinckerhopp, judge. ■ STATEMENT. On June 13, 1889, Mary A. Smith owned eighty acres of land in Rice county, and had two children, Mrs. Ellen Pentico, who is one of the plaintiffs in error, and Pearly M. Smith, then a child between nine and ten years of age. Mrs. Smith made and acknowledged a deed on that day, purporting to convey to Pearly one forty-acre tract of the land.

<p>SYLLABUS BY THE COURT.</p> <p>Malicious Prosecution — Findings and General Verdict — New Trial Ordered. In an action for damages for the malicious prosecution of a civil action the jury returned a general verdict for plaintiff, and answered in the affirmative that before instituting the action defendant had stated the facts fully to an attorney who, knowing all the facts, advised him to bring the action, and. that it was. brought upon such advice. Upon being polled one of the jurors stated that such was not his answer to the question and refused to stand by it. Thereupon the jury were discharged. Held, upon examination of all the evidence and circumstances of the case, and in view of the importance of the question and the character of the action, the judgment should be set aside and a new trial granted. •</p>

Error from Geary district court; OSCAR L. Moore, judge. STATEMENT. On February 14, 1905, this suit was commenced in the district court of Geary county to obtain judgment upon a note and to foreclose a mortgage given to secure the same. The note reads: “$2100. Junction City,.

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

<p>SYLLABUS BY THE COURT.</p> <p>Judgments — -Lien upon Inherited Indian Land. A judgment of the district court against an adult Kickapoo Indian is not a lien upon his inherited lands situated in the county where such judgment is rendered.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Injury to Employee — Negligence a Question for the Jury. In an action for damages against a railway company for the killing of one of its employees inferences of fact respecting the prudence of the conduct of the defendant and of the deceased, drawn by the jury from a mass of equivocal circumstantial evidence summarized in special findings, and expressed in a general verdict, will not be disturbed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sales — Order Given Traveling Salesman Subject to Approval —Withdrawal before Acceptance. Since in the absence of ■ evidence to the contrary the presumption is that an order for goods taken by a commercial traveler is subject to approval by the house which he represents, and no contract results until such order is accepted, the proposed buyer has an unqualified right to withdraw such an order at any time before it is accepted.</p> <p>2. -=— Acceptance. Where an order for goods is taken by a traveling salesman and transmitted to his employer, who thereupon writes to the proposed buyer acknowledging the receipt .of the order, thanking him for it, and saying that it will receive prompt and careful attention, such communication either is in itself an absolute acceptance of the order or is such an expression as may, in connection with an otherwise unexplained omission for a long time to make any further response, be deemed some evidence from which an acceptance may be inferred; if not conclusively an acceptance, it may be given that effect if the subsequent conduct of the parties indicates that they have each so treated it.</p> <p>3. - Conduct of the Parties — Evidence of Acceptance. Such a communication may be regarded as having been interpreted as an acceptance by both parties where it is followed by correspondence between them in which the buyer claims a right to change or cancel the order at any time in virtue of an asserted special agreement made with him by the agent' who took it, and the seller denies the existence of such right and the making of such agreement.</p> <p>4. - Withdrawal of Order before Acceptance — Question for the Jury. The evidence examined and held not to show conclusively that an attempt was made to withdraw the order here involved before it had been unequivocally accepted.</p>

Error from Shawnee district court; Alston W. Dana, judge. STATEMENT. Hilda Anderson brought suit for the specific performance of an alleged written contract between Neis Palmlund and Cecelia Palmlund, his wife, both deceased, and plaintiff’s parents, Pehr Anderson and Nella Anderson, by the terms of which the Palmlunds were to receive her into their home in all respects as their own child, and she was to be left all the property of which they died possessed.

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law — Evidence of the Legal Enactment of a Statute. While courts may look to the journals of a legislature as well as to the evidence furnished by an enrolled bill to determine whether a challenged act received the required number of affirmative votes, such acts, when approved, certified and authenticated as the constitution requires, cannot be overthrown by reason of entries in a journal which are themselves contradictory and of doubtful import.</p> <p>2. -An Act Held to Have Received the Required Number of Votes. The validity of chapter 199 of the Laws of 1905, creating a judicial district, was challenged because of an entry in the journal of the house of representatives tending to show that a constitutional majority of the members of that house did not vote for the act. A later entry was to the effect that a constitutional majority did vote for the act and that it passed. Held, not to be invalid.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negotiable Instruments — Parol Proof Inadmissible to Charge Undisclosed Principal as Indorser. A person whose name does not appear upon a promissory note cannot be charged as an indorser thereof by parol proof that the nominal payee in accepting and indorsing it was acting as his authorized agent, where nothing upon the face of the note suggests the existence of an agency.</p> <p>2. -Alteration as to Interest — Instruction as to Legal Rate of Interest after Maturity Erroneously Refused. Where liability on a promissory note is denied by the maker, upon the ground that it has been altered by the addition of a clause making it- bear interest at the rate of five per cent, per annum after maturity, whereas at the time of its execution it made no mention of interest, the refusal to instruct the jury that the note in the form in which the defendant claimed it stood when he signed it would in virtue of the statute draw interest after it was due at the rate of six per cent, per annum is material error.</p> <p>3. -Note Vitiated by Unauthorized Alteration. A promissory note may be vitiated by an unauthorized alteration made by inserting a lower rate of interest than that carried by the instrument as originally executed.</p>

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

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

Error from Sumner district court; Carroll L'. Swarts, judge. STATEMENT. This action was commenced in the district court of Sumner county, November 21, 1901, by the defendant in error to recover damages sustained on account of the violation of a contract. Many assignments of error have been made, but the real controversy relates to the proper measure of damages applicable under the pleadings and evidence in this case.

<p>syllabus BY THE COURT.</p> <p>1. Forcible Entry and Detainer — Amendment of Complaint. A complaint in an action of forcible entry and detainer which alleges an “unlawful entry” may be properly amended so as to aver an “unlawful and forcible entry.”</p> <p>2. --- Dispossession Must Be by Due Course of Law. One in the peaceable possession of real property may not be turned out unlawfully or by force, even by an owner entitled to possession; it can only be done by due course of law.</p> <p>3. -Acts Sufficient to Constitute a Forcible Entry. A person was in the peaceable possession of a building which contained furniture and other goods. He locked the doors and temporarily left the premises for a few hours, and during his absence, and against his will, a number of men acting for the owner of the building invaded the premises, unlocked the doors, detached and removed the articles with which the building was furnished, carried them to and stored them in another building, and then forcibly maintained the possession so gained. Held, to be sufficient to constitute a forcible entry.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. LARCENY — Degree of Offense — Value of Property Taken. On an information charging a defendant in the same count with burglary and larceny, if the charge of burglary be dismissed and he be convicted of the larceny, the degree of larceny must be determined by the value of the property taken, unless such taking be grand larceny or subject to punishment as such without regard to value.</p> <p>2. • — - Fads Constituting Petit Larceny. In such a case, where the property taken is articles of wearing apparel of the value of three dollars, and the articles are taken from a “box car” placed at the side of a railroad'track and “used as a tool and supply house,” the offense is petit larceny.</p> <p>,3. Habeas Cobpus — Unauthorized, Judgment and Sentence. Under the facts of this ease the judgment and sentence of the court are unauthorized by law and are void, and section 5167 of the General Statutes of 1901 does not forbid inquiry into the same in a habeas corpus proceeding.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Infant—Special Findings Contrary to General Verdict; The special findings in this case show that the defendant was not guilty of negligence in leaving a large stone leaning against the side of his building over ■ an opening in the sidewalk, which stone a' boy thirteen years old, ánd not of sufficient capacity to understand his danger, pulled over upon himself, to his injury.</p>

<p>syllabus BY THE COURT.</p> <p>1. Brokers — Commercial Broker Defined. An agent employed to sell machinery by procuring orders or purchasers therefor is a commercial broker, when the contract of agency neither gives nor contemplates any possession or right of possession in the agent to the machinery to be sold.</p> <p>2. -- Sales — Authority of Broker. Such a broker, without power to make an actual sale and delivery, can only procure or find purchasers willing to buy, and the consummation of a sale depends upon the principal.</p> <p>3. - Commission for Sales Procured. Where under his contract of agency with the principal such broker is entitled to a commission upon any sales of such machinery made by him, and he notifies the principal that he has prospective purchasers for a machine, and informs the general agent of the principal (who is sent by the principal in response to such notice to assist in making the sale) of the names of purchasers and where they live, and such general agent thereupon proceeds to negotiate and consummates such, sale, then such broker is entitled to his commission; provided, that it appears from the circumstances that the action of the agent so far effectuated the sale that but for such action the particular sale could or .would not have been consummated.</p> <p>4. -Revocation of Agency Pending Negotiations — Right to Commission. In such a case, the agent having acted in good faith, the revocation of the contract of agency by the principal during the pendency of the negotiations and before the consummation of the sale does not deprive the agent of his right to the commission.</p>

<p>Error from Harper district court; Preston B. Gil-LETT, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Transportation of Live Stock — Facilities to Feed and Water. It is incumbent upon a railway company carrying live stock to provide necessary and suitable yards and facilities for the care of stock shipped over its line, in which stock in transit may be unloaded for rest; feed and water.</p> <p>2. -Duty to Keep Stock-yards in Reasonably Safe Condition. It is the duty of the railway company to keep such yards, with their approaches and walks, in a reasonably safe condition, not only for the stock placed in the yard?, but also for persons who accompany the stock as caretakers and who in the performance of their duties may find it necessary to go into or through the yards.</p> <p>3. - Duty to Caretakers Inspecting Stock in the Yards. While the duty of feeding and watering the stock devolves upon the company, the caretakers accompanying the stock have a right to follow and inspect them and ascertain whether they are being given proper care, and the railway company is bound to exercise reasonable care for the safety of the caretakers while engaged in such business.</p> <p>4. - Notice of a Defect — Presumption. The company is not only liable for injuries sustained by such caretaker by reason of defects in the walks in.the yards of which it had actual knowledge, but also by reason of a patent defect which had existed so long that notice of it may be reasonably inferred.</p> <p>5. - Notice Inferred — Special Finding Not Contrary to General Verdict. A general verdict for plaintiff, based on testimony that defendants in the exercise of reasonable diligence should have known of a defect which caused the injury, is not overthrown by a special finding to the effect that defendants had no actual knowledge of the defect.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Special Findings Unsupported by any Evidence — New Trial. Where in a trial by a jury special findings of fact are returned with the general verdict, and it appears from the answers to the special questions submitted that the undisputed evidence in the case was disregarded to such an extent as 'clearly to indicate that the case was not fairly considered,, the verdict and special findings should be set aside and a new trial granted.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Carriers — Negligent Delay in Moving Goods — Destruction by Act of God. The negligent delay of a carrier in moving goods entrusted to it for transportation, not so unreasonable as to amount to a conversion, will not render it liable for the loss' of such goods after they have been carried to their destination if they are there destroyed by an act of God before delivery.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. PRACTICE, District Court — Petition for Partition Amended to Include Ejectment after Change of Venue. Where the petition in a suit for partition shows the defendant to be in the exclusive occupancy of the premises involved the court of the county to which the case is transferred on change of venue may permit it to be amended so as to state also a cause of action in ejectment.</p> <p>2. Conveyances — Deed in Escrow — Delivery after Death — Intention of Grantor. Evidence that the owner of land executed a deed to his daughter, reserving a life-interest in himself, and stated his purpose to be to deposit it with a third person to be turned over to the beneficiary upon his death, and that he did deposit it with such person, who handed it to the grantee after the grantor’s death, may be held sufficient to establish an effective delivery, notwithstanding no further showing is made as to what instructions were given to the depositary.</p> <p>3. - Control of Deed by Grantor. The testimony of such a depositary examined and held not to require the conclusion that the grantor retained any control over the deed.</p>

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

Wilson, judge. STATEMENT. H. Calhoun was prosecuted on a charge of forgery. The National Bank of Commerce of Wichita loaned to H. Calhoun forty dollars, for which he gave his individual note, and as collateral security he delivered to the bank three small notes, among them one note for forty dollars, payable to his own order four months after date, and purporting to have been executed by F. L. McAlister, W. A. McAlister, and Isaac Fink.

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. MUNICIPAL Corporations — License Tax upon Transient Merchants. An ordinance of a city of the third class levying a per diem license tax upon transient merchants cannot be held to be violative of the statutory restriction that such ordinances must be “just and reasonable” unless the amount required to be paid is so excessive that it can be said that it is restrictive or oppressive.</p> <p>2. -Reasonableness of the Tax a Question of Law. Whether or not an ordinance is void is a question of law.</p> <p>3. - Punishment for Failure to Procure a License. Cities have the power to punish the violation of such ordinances by fine and imprisonment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1." Negligence — Setting Out Fires on Farms. Farmers have the right to set out fire on their premises for proper agricultural purposes, and will not he liable for damages resulting therefrom if the fire is set out and managed with ordinary-care and prudence.</p> <p>2. - Question of Fact. What degree of caution and diligence constitutes ordinary care and prudence in setting out and controlling such a fire depends upon the circumstances and conditions in each particular case, to which no universal rule, can apply.</p> <p>3. - Conelusiveness of Jury’s Finding.. A jury composed ■ of citizens from the vicinity or county where a fire set out by a farmer escapes and destroys the property of another is peculiarly fit and competent to determine whether the fire was set out and managed with proper care and diligence or not, and when such a question has been fairly submitted to, and determined by, such a tribunal its verdict ordinarily will not be disturbed.</p>

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

Error from Elk district court; Granville P. Airman, judge. STATEMENT. ■This action was brought to-recover damages for personal injuries alleged to have been received by plaintiff at Emporia while crossing the defendant’s railroad tracks, between the station and defendant’s train, which plaintiff was about to enter to take passage to Kansas City. The plaintiff and another were shipping cattle from Howard, on defendant’s railroad, to Kansas City.

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

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

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

Error from Miami district court; Winfield H. Sheldon, judge. STATEMENT. This suit was brought in the district court of Miami county by Mrs. L. B. Trickett against J. 0. Rankin for the partition of personal property, consisting principally of an iron safe and books constituting an abstract outfit, in which Mrs. Trickett claimed she. owned an undivided one-half interest and Rankin the other half.

<p>SYLLABUS BY THE COURT.</p> <p>1. Conveyances — Deed Delivered to a Custodian — Enjoyment Postponed until after Grantor’s Death. Where an instrument, executed and placed in the hands of a third person to be delivered to the grantee on the death of the grantor, being otherwise in the form of an ordinary warranty deed, provides that it shall not take effect until the death of the grantor, such provision will, in the absence of some controlling reason to the contrary, be construed to mean that the title is to vest at once, only the enjoyment being postponed until the death of the grantor.</p> <p>2. ■-— Grantee to. Care for Grantor During Latter’s Lifetime. The recital in such a deed that it is understood that the grantee is to care for the grantor during the remainder of his life is not inconsistent with such an interpretation.</p> <p>3. - Control Relinquished by Grantor — Custodian Directed to Hold Instrument until Grantee Performs Conditions. Where the owner of land executes an instrument in the form of a deed, and places it beyond recall in the hands of a third person to be delivered at his death, the delivery thereof, if otherwise sufficient, will -not be held ineffectual at the instance of the heirs of the grantor merely because the instructions given to the custodian included a direction to hold the instrument until the grantee, had performed certain conditions, all of which werev capable* of performance within the lifetime of the grantor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highways — Appeal from, Award — Parties. A landowner may appeal from an award of damages allowed by the board of county commissioners on account of a road laid out across his land notwithstanding the award has been made in the name of one who is not the owner.</p> <p>2. -Misdescription of Land in Notice of Appeal and Appeal Bond. The fact that in the notice of appeal and the appeal bond the land through which such road is established is misdescribed cannot defeat the appeal, where they refer to the proceedings of the board for the establishing of the- road in question and the award of damages appealed from.</p>

Error from Johnson district court; Winfield H. ShEldon, judge. STATEMENT. This was a suit commenced December 26, 1904, for the partition of the northeast quarter of section 8, township 14, range 24 east, in Johnson county, for rents and profits, and to set aside and hold for naught certain execution proceedings under which the defendant claimed title to the land in controversy.

<p>SYLLABUS BY THE COURT.</p> <p>1. Mines and Minerals — Oil-and-gas Lease — Rights of Lessee. An oil-and-gas lease conferring upon the lessee the right to “enter upon, operate for and procure oil and gas” upon land described, and containing no provisions indicating otherwise, grants a license to enter and explore, and, if oil or gas is found, the right to produce and sever it.</p> <p>2. - Title to the Minerals. Until mineral of the kind described is actually produced and severed so that it becomes personalty the lessee has no title to any specific portion of it, but the legal title to, and the. possession of, the entire mass and volume remain in the owner of the strata in which it is confined.</p> <p>3. Taxation — Minerals in. Place. Chapter 244 of the Laws of 1897, relating to the taxation of separately owned mineral rights, has no application except when the right or title to minerals in place has been severed from the right or title to the remainder of the land and has become vested in a person other than the one having the right or title to the remainder of the land.</p> <p>4. - Same. When the statute applies the right or title to minerals is taxed as realty.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Negligence in Operating Street-cars — Inference by the Jury. It is not error to submit to the jury in a collision case the question whether it was negligence for an electric car to he run upon a designated street of the city in which the trial is had at the rate of twelve to fifteen miles an hour, although no showing is made of any ordinance affecting the matter, or of what speed was usual, or of the extent of business ordinarily carried on at the place of injury. In considering such question the jury may without evidence take notice in a general way of the amount and character of the traffic carried on upon such street.</p>

<p>SYLLABUS BY- THE COURT.</p> <p>1. Trespass — Treble Damages. Treble damages- are allowed under section 7862 of the General Statutes of 1901 for injury in value to the things therein mentioned by doing the acts thereto which are specified.</p> <p>2. -Statutory Damages Not Recoverable for Loss Resulting from Use of Thing Taken. Treble the depreciation in the value of a farm cannot be recovered when the loss in value results not directly from the taking of gravel and soil therefrom but from the using and flooding of a portion of the land by reason of a dike, built in part on the farm and in . part on adjoining land, with gravel and mold taken from the farm by a trespasser.</p> <p>8. - When Treble Damages May be Awarded. If the thing injured be an appurtenant to the land its value as such may be considered as the basis of recovery, but indirect injuries, caused by a trespass specified in the statute and by other causes not therein specified, cannot be trebled and recovered.</p>

Error from Cowley district court; Carroll L. Swarts, judge. STATEMENT. Plaintiff is the owner of a hotel at Geuda Springs, in Cowley county., He brought this suit to enjoin the proprietor of the Geuda mineral springs from denying to him and to the guests and servants of the hotel free access to, and use of, the mineral waters of the springs.

<p>SYLLABUS BY THE COURT.</p> <p>T. Practice, District Court — Amendment of Answer —■ De- , murrer — Ruling Deferred — Withdrawal of Defense. When several defenses are stated in an answer, and the court permits one of them to be amended, over the objection of the plaintiff, after the trial has commenced, and the plaintiff immediately demurs to the answer as amended,, and requests a ruling thereon before the trial proceeds, which is denied, and the court while holding its decision in abeyance compels the parties to proceed with the trial, this court will not consider whether the court committed error or not in these rulings and orders, when it appears that the defense objected to was withdrawn from the consideration of the jury before the conclusion of the trial.</p> <p>2. --- Amendment of Answer to Conform to Proof. Plaintiff commenced an action to recover judgment on three promissory notes. The defendants pleaded, in substance, a failure of consideration, and asked that the notes be canceled. After the evidence was closed defendants were permitted to amend their answer by an averment that six other promissory notes were given with those mentioned in the petition, for the same purpose and as a part of the same transaction, and praying that they be canceled also. Held, it was not error to permit such amendment, it clearly appearing from the undisputed evidence given in the case that such averments were true.</p> <p>3. -Decree Canceling Notes in Plaintiff’s Possession — ■ Judgment for Tlieir Amount — •Satisfaction on Delivery. Where a-decree is entered in favor of a defendant for the cancelation of promissory nptes in the possession of the plaintiff the court, as a means to secure compliance with the decree, may properly render a judgment against the plaintiff for the amount of the notes canceled, providing therein that the judgment shall be satisfied upon delivery of the notes to the clerk of the court for cancelation within a time specified.</p> <p>4. - Joinder of Defenses. Sections 94 and 95 of the code of civil procedure (Gen. Stat. 1901, §§ 4528, 4529) permit a defendant to join in his answer as many grounds of defense, counter-claim, set-off and for relief as he may have, whether they be such as have been heretofore denominated legal or equitable, or both, when they arise out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim or are connected with the subject of the action, and the relief asked for is necessary for the complete determination of the question involved in the action.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — Benefit Certificate Providing for Forfeiture for Intemperance Held Self-executing. A condition in a fraternal benefit certificate that “if the member . . . shall . '. . become so far intemperate in the use of alcoholic drinks, or the use of drugs, to such an extent as to permanently impair his health, or to produce delirium tremens, . . . then this certificate shall be null and void and of no effect, and all moneys which shall have been paid, and all rights and benefits which may have accrued on account of this certificate shall be absolutely forfeited,” is self-executing.</p> <p>2. - Knowledge that Insured Has Violated By-laws— Waiver of Forfeiture Clause. A subordinate lodge of a mutual benefit association which has the power to discipline and expel a member for violating the by-laws of the association, possessing knojvledge that a member has forfeited his benefit certificate by violating the by-laws of the association, waives the right of the association to insist upon the forfeiture by continuing to receive his dues and in all other respects treating him as a member until his death.</p>

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

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

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

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

Error from Reno district court; Peter J. Galle, judge. STATEMENT. Two actions in replevin were commenced by the Frick Company against Joseph D. Fry — one as owner, to recover the possession of one J. I. Case traction-engine, the other as mortgagee, to recover the possession of a thrashing outfit, consisting of a traction-engine and separator, with attachments, and also two horses and nine head of cattle.

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

<p>Appeal from Meade district court; Edward H. Madison, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Information — Verification—Personal. Knowledge of Prosecutor. In prosecutions under the prohibitory liquor law, when the complaint is verified positively by the prosecuting attorney, no inquiry can be made touching the, source or extent of his knowledge or the information upon which such verification is based; nor can he be required to 'file in court or exhibit to the defendant affidavits or other testimony taken by him previous to filing the complaint.</p>

<p>Appeals from Miami district court; WINFIELD H. Sheldon, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Common Nuisance — Review by Supreme Court. The right to a review by the supreme court of a judgment, appealable order or ruling of a district court in a suit to enjoin the maintenance of a common nuisance is not taken away by section 5019 of the General Statutes of 1901. Appeals are thereby denied only in actions where there is nothing in controversy but money or property, or rights susceptible of a valuation in money, and the amount in controversy does not exceed one hundred dollars, exclusive of costs.</p> <p>2. - Bawdyhouse. A bawdyhouse, especially when conducted according to the allegations of the 'petition in this case, is a common nuisance and may be enjoined in a suit broiight by the County attorney in the name of the state. (Gen. Stat. 1901, § 4700.)</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurisdiction — Question of Fact — Judgment Conclusive Evidence. Where the jurisdiction of the court depends upon a fact which the court is required to ascertain and decide its judgment determining that the fact does exist is conclusive evidence of jurisdiction until set aside or reversed by a direct proceeding.</p> <p>2. Habeas Corpus — Erroneous Judgment. No offender under sixteen years of age may be imprisoned in the state industrial reformatory, but where a judgment in the district court recites that the age of the defendant sentenced to that institution was found and decided to be more than sixteen years the adjudication of that fact, although erroneous, is not open to attack in a habeas corpus proceeding.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition — Action by Assignee of a Contract — Description of Assignor. Where a company doing business under the name of the Mount Arbor Nursery Company makes a contract for the sale of nursery stock, and afterward assigns and delivers the contract to a third person, who commences an action to recover the amount due thereon, the petition in such an action will not be fatally defective, as against an objection to the introduction of evidence thereunder, merely because it omits to describe the assignor by stating whether it is a corporation, partnership, an unincorporated association, an individual transacting business under that name, or otherwise.</p> <p>2. Practice, District Court — 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 noj; with reasonable diligence have been obtained at the time of the trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>RAILROADS — Injury to Live Stock During Transportation — Notice of Claim for Damages. A contract for the transportation of live stock that makes it a condition precedent to a recovery of damages for loss or injury to such stock resulting from the carrier’s negligence that the shipper shall give written notice of his claim before the live stock are mingled with other live stock or removed from the pens at destination does not apply to animals which are dead when they reach their destination and which were killed through the carrier’s negligence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Joinder of Actions. A cause of action against one party on a lease and one on a separate and distinct writing wherein another party guarantees that a certain part of the rent under the lease will be paid cannot be joined in a single action.</p> <p>2. Jurisdiction — Service of Summons — Joinder of Parties. In such a case the service of summons upon one defendant- in the county where the action is brought' does not authorize the service of a summons upon the other defendant in another county.</p> <p>3. -Issuance of Process to a Foreign County. To justify the issuance of a summons to a foreign county and the service of the same upon a defendant residing or found there the action must be rightly brought and the persons sued must be rightly joined as defendants.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Letters between a Party and a Stranger — Relevancy — Secondary Evidence. Where the contents of a letter written by a party to the action to a third party and of a letter of the third party to him are each entirely irrelevant to any issue in the case on trial, except that they tend to prove that the party to the suit was negotiating a trade which was afterward consummated, the letters are both competent evidence for that purpose, and may be introduced in evidence by reading the same; or if one be lost it is no abuse of discretion if the court allows a witness to testify to the receipt of the letter and to its purport or contents.</p> <p>2. - Wife of a Party as a Witness — Agency Not Shown. Where in a civil action the wife of one of the parties is produced as a witness on behalf of her husband to prove an admission by the adverse party that money paid by the husband to him was all that was due, it is not a sufficient showing to render the wife competent as such witness that she wrote the receipt for the money paid and usually did her husband’s writing and sometimes did other business for him. In such a case, to render her competent by reason of acting as the agent of her husband, it must appear that she was in fact engaged in the settlement of the accounts between her husband and the adverse party and that she had general or special authority from her husband, either express or implied, so to do.</p> <p>3. Practice, District Court — Impeaching Testimony Withdrawn before Rebuttal — Instructions. Where on the trial of a civil action one party introduces evidence tending to impeach the character for veracity of the other party, and the party sought to be impeached thereupon requests and the court allows a delay in the trial to enable the impeached party to obtain witnesses in rebuttal of such impeachment, and thereupon the other party, to save time, withdraws the impeaching evidence and the court orally instructs the jury to disregard such evidence, it is not error for the court to revoke the order for delay and at once to proceed with the trial. Nor is it reversible error for the court thereafter to’ omit, in its written instructions to the jury, to repeat the instruction to disregard the impeaching evidence, no request therefor being made.</p>

Error from Cherokee district court; William B. Glasse, judge. STATEMENT. The New York Zinc Company owns a tract of mineral lands in Cherokee county. George L. McCullagh was mining lots 18 and 14 of this tract under a written lease from the company, and, on March 15, 1902, claims to have procured from the manager of the company a verbal lease to mine on an adjoining lot, known as the “Ben Q” lot.

Error from Douglas district court; Charles A. Smart, judge. STATEMENT. This appeal from a judgment of the district court in habeas corpus for the possession of a child involves the merits of the “incubator baby case.” A part of the controversy was before the court in Blealdey v. Smart, 74 Kan. 476, 87 Pac.-76. That was an action of mandamus to compel the trial judge to rule upon a motion for a new trial.

Error from Clark district court; Edward H. Madison, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition — Landlord’s Lien on a Crop — Action Against Purchaser from the Renter. In an action against the purchaser of a crop grown on rented land and upon which there was a lien for unpaid rent it is not necessary for the plaintiff, who seeks to enforce the lien, to set forth a copy of the written lease executed by the landlord and tenant.</p> <p>2. Parties — Defect Waived. The defendant not having made any objection as to a defect of parties, either by demurrer or answer, is deemed to have waived the same.</p> <p>3. Notice — Landlord’s Lien — Purchaser of a Renter’s Crop. The landlord’s lien is only enforced against purchasers who have notice of such lien, but a constructive notice is sufficient; and where the purchaser of a crop grown on rented land has notice of facts and circumstances which would put a prudent man on inquiry it is a good notice of all an inquiry would have disclosed.</p> <p>4. - Constructive Notice. The circumstances brought to the attention of the purchaser herein, indicating that the crop was grown on rented land, made it necessary for him to inquire further, and the testimony is deemed to be sufficient to sustain the finding that a reasonable inquiry would have led to the discovery that the crop purchased was subject to a lien.</p>

<p>SYLLABUS BY THE £OURT.</p> <p>1. Homestead — Lease—Change in Manner of Paying Rentals— Oral Agreement — Consent of Wife. An agreement changing the terms and manner of paying rentals of a gas-and-oil lease on a homestead from cash to a royalty of one-tenth of the product does not enlarge or diminish the leasehold estate and need not be in writing or consented to by the wife of the lessor.</p> <p>2. Landlord and Tenant — Modification of Lease — Parol Evidence. A written lease may be subsequently modified or-changed with respect to the manner and terms of paying rent by an oral agreement, and such agreement may be admitted in evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Allegations and Proof of Negligence of a Mastei — Variance—Failure of Proof. A petition in a personal-injury case charged negligence in the selection of an insufficient wooden block and a negligent adjustment of such block to render effective the work of a hydraulic ram in lifting a railway engine which was being repaired by a group of four or five skilled mechanics under the direction of a foreman. It was alleged that the foreman selected the block and handed it to the man who adjusted it. There was some evidence on the trial that another than the foreman selected’ the block and handed it to the man who adjusted it. From all the evidence the jury found that the man who adjusted the block selected it. Held, there was no material variance between the • pleading and the proof, and no failure of proof because the foreman did not select the block.</p> <p>2. Variance — When and How the Question Must be Raised. The question of a variance between a pleading and the proof offered to sustain it must be raised at a time and in a manner which will permit an amendment of the pleading upon such terms as may be just; and the adverse' party must not only be misled to his prejudice, but that fact must be proved to the satisfaction of the trial court, and it must be shown in what respect he' has been misled.</p> <p>3. Railroads — Injury to Employee — Negligence of Fellow-servant — -Statutory Liability of the Master. The plaintiff, a skilled employee of the defendant railway company, was engaged in the repair of an engine in active use in the operation of the road, under the circumstances related in paragraph 1 of this syllabus, and was familiar with all the details of such work. The defendant provided a safe place to work, competent and habitually careful workmen, safe machinery and appliances to work with and sound and sufficient wooden blocks to choose from. The plaintiff had nothing to do with the selection or adjustment of the block used in connection with the hydraulic ram, and no opportunity to observe how the engine was supported after it had been raised. While he was engaged in the performance of duties of his own, according to orders from the foreman, the engine fell and he was injured because another employee had negligently selected an insufficient block and had negligently failed to adjust it properly. Held: (a) The defendant is liable under the railway employer’s liability act notwithstanding it had discharged its common-law duties and had no notice of the use of the defective block; (6) the plaintiff did not assume the risk of injury from the negligence of his coemployee; (c) the plaintiff was not guilty of contributory negligence.</p>

Error from Wilson district court; Leander Still-well, judge. STATEMENT. The Eastern Ohio Oil Company held a lease granting it the right under conditions expressed therein to drill for oil and gas upon certain lands belonging to another.

Error from Sumner district court; Carroll L. Swarts, judge. STATEMENT. ON and prior to the 21st of January, 1900, the Minnesota Thrasher Manufacturing Company was a corporation located and doing business at Stillwater, Minn. On the date aforesaid it sold a thrashing-machine to the defendants in error at Hunnewell, Kan., and received two promissory notes therefor.

<p>SYLLABUS BY THE COURT.</p> <p>Jurisdiction — Service by Publication. In a suit to quiet title to real estate, where the only attempt to obtain jurisdiction of Florence D. Whitney, an unmarried woman, one of the defendants, was by publication, in which she was referred to as “-Whitney, and-Whitney, his wife, whose first names are unknown,” without any other description or identification, and where there was no appearance or waiver of the issuance and service of summons, the court did not acquire jurisdiction of her, and a judgment against her upon such notice is void.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negotiable Instruments — Obligation to Accept a Draft — Limitation. No obligation to honor any draft excepting one for the price of stock shipped to the drawee is assumed by a live-stock commission firm in writing thus to a bank: “We will honor Mr. Payne’s draft for one thousand dollars on hogs or cattle. Should he want more'at any time, have him call us by phone and we will make arrangements to handle his stock. We limit our customers as we have to keep our bank account up here.”</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Fraud—Pleading and Proof — Variance. Under the facts of this case it is held that a discrepancy between a pleading and the proof offered to sustain it did not amount to a material variance, and that the adverse party was not misled to his prejudice.</p> <p>2. Evidence — Corroborative Testimony to Fortify an Impeached Witness. After the introduction against the plaintiff in an action of impeaching evidence tending to show that he had been silent concerning his claims when most likely he would have asserted them had grounds existed, and leading to the inference that they were of recent fabrication, he may be corroborated by proof of previous consistent claims and statements made and consistent' conduct exhibited at a time when their ultimate effect could not in the nature of things have been foreseen.</p>

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

Error from Labette district court; Thomas J. Flannelly, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>1. Highways — Maintenance—Powers of a Road-overseer. A road-overseer is vested with a broad discretion as to the plan and methods of maintaining highways, and it is competent for him to grade a highway and place a culvert across it so that surface-water which comes upon the highway will pass off the same by the usual and natural course.</p> <p>2. -Improvements — Injunction. . An error in judgment by the road-overseer with respect to the plan of improving a highway, adopted in good faith, will not of itself give a ground for enjoining the improvements.</p> <p>3. -- Reasonableness of Official Conduct — Rights of Private Owner. The officers must act with reason and prudence in making such improvements, and cannot collect a considerable quantity of water and unnecessarily and unreasonably throw it in a body upon the land of a private owner to his injury. But held, that the testimony in this case does not show that the proposed improvement will cast the water upon plaintiff’s land in such a manner as to give him a right, to maintain injunction.</p>

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

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

Error from Montgomery district court; Thomas J. FlanNélly, judge'. STATEMENT. O. W. Compton brought this suit to enjoin the People’s Gas Company from operating on certain lands under an oil-and-gas lease, and to have the lease de-dared void. He daims under a subsequent lease. The land consists of a farm of 201 acres in Montgomery county, an undivided one-half of which belongs to Elizabeth Phillips, the other half to her children.

<p>Error from Smith district court; Richard M. Pick-ler, judge.</p> <p>STATEMENT.</p> <p>William Bunt at the time of his death was the owner of the real estate in controversy. He left a widow, Eliza Bunt, and a daughter, Mary Greenwalt, and other heirs. His last will and testament reads:</p> <p>“Be it known that I, William Bunt, have this 4th day of June, 1895, made this, my last will, as follows:</p> <p>“First. I wish my wife, Eliza Bunt, to have all my property of every kind that I may own at my death, to have for her own use and benefit while she may live. And at her death all 'property that may be left by her, first I want Mary Greenwalt or her heirs to have what I owe her.</p> <p>“Second. To John Bunt’s heirs by his first wife and Susan Sleeper and Joseph Bunt, and Henry Bunt and Mary Stinson and Mandy Hays, my children, to be divided to each one as to their amount that they may due for my wife while she lives.</p> <p>• “Given under my hand, this 4th day of June, 1895.”</p> <p>After the death of her husband the widow lived with, and was supported by, her daughter, Mary Greenwalt.</p> <p>•Immediately after the testator’s death Eliza Bunt took possession of the property in controversy, and about three years afterward she conveyed it by warranty deed to Mary Greenwalt. The debt due from the estate of William Bunt to Mary Greenwalt, mentioned in'the will, was $300. After Eliza Bunt made the conveyance referred to Mary Greenwalt went into, and has ever since held, possession of the property. N. E. Keller and wife claim to own an interest in the premises, and have removed improvements therefrom. Eliza Bunt died about three years after she made the conveyance to Mary Greenwalt.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Commission for the Sale of Real Estate. A real-estate broker employed to find a purchaser of land at a fixed price is not entitled to a commission unless he procures a purchaser ready, willing and able to buy the land at the stipulated price, or one who at the end of negotiations with the owner does buy it at a lower price.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Res Judicata — Evidence of the Scope of the Judgment. A question as to what rights have been acquired by condemnation proceedings which include the trial of an appeal from the award made by commissioners depends upon what was in fact adjudicated in such trial, and this may be determined by the rules governing such an inquiry with respect to an ordinary judgment. The record may not be contradicted, but so far as is consistent with it— with respect to matters concerning which it is silent — other evidence, including parol testimony, may be received to show what was involved, considered and established.</p> <p>2. Injunction — Closing Undergrade Farm Crossing — Elements of Damage Considered in Condemnation Award. Although • the report of the condemnation commissioners, the pleadings on appeal, the verdict and judgment may all be silent upon the subject, the owner of land across which a railroad right of way has been condemned may show by' other evidence that with the approval of both parties the question submitted to and determined by the jury was the amount of his ’ damages upon the supposition that an undergrade farm crossing then constructed was to be kept permanently open for his benefit, and upon such showing he is entitled to an injunction restraining the railroad company from obstructing such crossing.</p> <p>3. - Prima Facie Proof that Crossing Was to be Maintained Permanently. Evidence that during the pendency of such an appeal the railroad company asked a continuance, and in support of such application presented an affidavit alleging among other things the existence of an agreement for the maintenance of such undergrade crossing, and that at the trial all of the testimony offered in behalf of the company as to the amount of damages was expressly based upon the supposition that such crossing was to be maintained permanently, coupled with the fact that the jury in answer to a special question stated that they allowed nothing for inconvenience of use resulting from the land’s being cut in two by the railroad, is sufficient to make a prima facie case in support of a right to enjoin the railroad company from obstructing such crossing.</p> <p>4. Evidence — Affidavit Presumed ' to ■ Have Been Rightfully Filed. An affidavit purporting to be made in support of a motion for a continuance, which was filed a few days before a continuance was granted on the application of the party in whose behalf it professes to be made, in the absence of some reason to the contrary will be presumed to have been filed by authority of such party.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Specific Performance — Jurisdiction of Defendant. Prior to the enactment of chapter 384 of the Laws of 1903 a suit for the specific performance of a contract to convey real estate was an action in personam and could be brought only in the county where the defendants or any of them resided, but no jurisdiction of a defendant could be obtained by publication service.</p> <p>2. Ejectment — Issue to be Tried. The issue in an action of ejectment is, Who has the better title? And the title of a tenant in common owning a moiety of the fee is superior to that of one in possession of the land under a voidable tax deed.</p> <p>3.- Tenant in Common of the Fee — Holder of Voidable Tax Deed. A tenant in common owning a moiety of the fee may in an action of ejectment recover the entire possession of a tract of land from one who holds the same only by virtue of a voidable tax deed, on payment of the lien for taxes.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition — Amendment ■ — -Relation— Statute of Limitations. When a petition fails to state a cause of action an amendment which asserts a cause of action barred by the statute of limitations does not relate back to the first petition so as to deprive defendant of the defense of the statute.</p> <p>2. Subcontractor’s Lien — Foreclosure—-Notice to Landowner. A petition to foreclose a subcontractor’s lien under the mechanics’ lien law failed to allege that notice of the filing of the lien had been served upon the owner. More than a year after the lien was filed the petition was amended so as to allege service of the notice. A motion for judgment on the pleadings was denied, and an objection to evidence under the amended petition overruled. Held, error.</p>

<p>SYLLABUS BY THE COUET.</p> <p>1. RAILROADS — Injury by Fire — Sufficiency of Evidence. Evidence examined and found to be sufficient to require the submission thereof to the jury.</p> <p>2. - Origin of Fire — Circumstantial Evidence. Where a fire starts upon a right of way belonging to a railway company soon after a train has passed' the point where the fire started, whether the fire originated from the locomotive en7 gine of such train or not is a question of fact, which may be determined from circumstantial evidence.</p> <p>3. Judgments — Joint Tort-feasors. Where two railway companies are jointly charged with negligently setting out a fire, judgment may properly be entered against either, or both, as may be proper under the evidence.</p> <p>4. Damages — Injury by Fire. Where a railway company negligently sets out a fire which destroys an orchard of fruit-trees it is proper in estimating the damages sustained thereby to show the value of the trees destroyed independently of their relation to the freehold, and also the value of the farm before and after the fire; and the evidence so given should all be submitted to, and considered by, the jury.</p> <p>5. Practice, District Court — Instructions—Request. When it is desired to have particular questions of law presented to the jury a written request should be made to the court so to instruct.</p> <p>6. Evidence — Expert—Equipment and Operation of Engines— Fire. In an action to recover damages from a railway company on account of a fire which has been negligently set out by one of its locomotive engines it will not be deemed erroneous for the court to permit the plaintiff to show by hypothetical questions propounded to experts that a locomotive, engine will not set out a fire when properly equipped and', carefully operated.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Intoxicating Liquors — Information—Duplicity. Where an information contains eleven counts, ten of which charge the defendants with the unlawful sale of intoxicating liquors upon three different dates,' and the other count alleges that they are the keepers of a nuisance, which last-named count in part reads: “That on the 6th day of May, 1905, and at divers and other times from that day up to and including the date of the filing of this information, and at the dates of the several offenses hereinbefore charged, a certain place in said county, ... is a place where intoxicating liquors were and are unlawfully sold, bartered and given away, and where persons were and are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, and where intoxicating liquors were and are kept for sale, barter and delivery in violation of law, and where intoxicating liquors, bottles, glasses, kegs, pumps, and bars and other property were and are kept in maintaining said place, . . . and that the said’ Joseph Giroux and Joseph Benoit did, on said May 6, 1905, and at the dates of the offenses herein-before charged and at the date of the filing hereof, unlawfully keep and maintain said place . . . and have kept and maintained the same to the date hereof, and are‘now keeping and maintaining the same;” held, that a motion to quash such count on the ground that. it contained several separate offenses should be denied.</p> <p>2. -Evidence — Nuisance—Articles Seized in the Building. In such a case the exhibition to the jury of articles taken from the place charged to be a nuisance during the time it is alleged to have been such and at the time the defendants were arrested is not erroneous, even though the contents of a part of the bottles and other vessels are not shown to be intoxicating liquor.</p> <p>3. - Prima Facie Proof — Instruction. Where in such' a case intoxicating liquors are taken at the place alleged to be a nuisance, as stated in syllabus numbered two, it is proper for the court to instruct the jury that the presence of such liquor at such place is prima facie evidence that it was kept there for unlawful sale or use, as provided by section 2500 of the General Statutes of 1901.</p> <p>4. - Druggist’s Permit. Where intoxicating liquors are sold as a beverage or kept under circumstances which make the place where they are kept a public nuisance the question whether the defendant has a druggist’s permit is immaterial.</p>

Error from Reno district court; Peter J. Galle, judge. STATEMENT. On June 5, 1898, Samuel Dilley died in Reno county, Kansas, leaving a will which, after making various bequests to children and grandchildren, provides as follows : “After paying the above legacies, I give and bequeath to the trustees of Washburn College, located at Topeka, Kan., the balance of my estate, be it more or less, to be held by them as a permanent fund and invested and secured as such.

<p>syllabus BY THE COURT.</p> <p>1. CONDEMNATION Proceedings — Railroad Right of Way — Purchaser Pendente Lite. Where a railroad company institutes a proceeding to condemn land for a right of way and the commissioners appointed to assess, the damages make an award for the land proposed to be so taken, from which the owner appeals, and the railroad company thereupon takes possession of the land and proceeds to construct its railroad, and while the appeal is pending sells its property, rights and franchises to another railroad company, which at once enters upon and uses the land condemned with the intention of permanently using and occupying the same as a right of way, and afterward judgment is entered upon the appeal increasing the award, the judgment so rendered is binding upon the purchasing company, although it was not a party to the appeal; and the landowner may maintain a personal action against it to recover the award so made, and in the action such award is conclusive as to the amount of damages.</p> <p>2. Practice, Supreme Court — Review of Ruling on a Demurrer —Limitation. A ruling upon a demurrer made more than a year before the proceeding in error is instituted is not open to review in that proceeding.</p> <p>3. Petition — Construction—Objection to Evidence. An objection to the admission of any testimony is not the best method of testing the sufficiency of a petition, and upon such objection the court should interpret its allegations very liberally, and sustain the pleading if it can reasonably be done.</p> <p>4. -Prayer for Relief — Judgment. In the prayer of a petition there were demands for both specific and general relief, and the fact that a mistake was made in the prayer for specific relief did not prevent the granting of such relief as the allegations of the petition and the circumstances of the case justified under the prayer for general relief.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Injury to Employee — -Notice before Beginning Action. The notice required to be given by chapter 393 of the Laws of 1903 by an employee of a railroad company before commencing an action to recover damages for personal injuries applies only to actions brought under the statute. The present action was upon a common-law liability, and the • statutory notice was not required.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Hypothetical Questions. Hypothetical questions put to expert witnesses should he based upon such facts only as the evidence tends to prove, and if, as to any material hypothesis, such question is without the support of evidence, it should be excluded. It may not be required that the question be based upon conceded facts nor that h/ embrace all the facts of which there is evidence; neither is technical accuracy required in the framing of the question, but no material exaggeration or perversion of facts assumed is permissible.</p> <p>2. -Same. Each party has a right to assume, so far as there is any justification in the evidence, that the facts will be found in accordance with his theory and against the theory of the opposite party, and is entitled to frame hypothetical questions in accordance with such assumption.</p> <p>3. - Same. The evidence and circumstances in different cases are so variant and the danger of confusing rather than assisting a jury in arriving at the truth is so great in this class of evidence that only general rules as to permissible questions should be prescribed. That justice may be subserved, a wide discretion rests in the trial judge.</p> <p>4. - Opinion of Non-expert Witness as to Mental Condition of Another. Non-expert witnesses shown to have had especial opportunities of observation are allowed to give opinion evidence of the mental condition of one under investigation in this respect, having first stated the facts upon which such opinions are based, or without stating such facts when opportunity is given to cross-examine in reference thereto.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Highways — County-line Bridge — Maintenance. A bridge built on a road located on the line dividing two counties, from funds supplied in part by private subscriptions and the remainder by a township of one of the counties, which, .being of public utility, is accepted, adopted and used by the public as a part of the highway over the stream it spans, is a part of the highway, and expenses incurred in its repair are, by the provisions of chapter 109 of the Laws of 1874 (Gen. Stat. 1901, §§ 6050-6052), to be borne jointly by the two counties.</p>

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

<p>Error from Kearny district court; William Eas-ton Hutchison, judge.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Impeachment of a Witness — Cross-examination as to Collateral Matters. On cross-examination a witness may be interrogated, for the purpose of impairing his credibility, concerning his past conduct and character, and as to specific acts which tend to discredit him, although such acts may be irrelevant and collateral to the principal controversy in the case.</p> <p>2. Practice, District Court — Procedure at the Trial — Discretion — Review. Trial courts are charged with the duty of enforcing proper rules for the transaction of business and the conduct of trials, before them, and reviewing courts will not interfere therewith except in cases where the rights of the party complaining have been prejudiced.</p> <p>3. Instructions — Interpretation. Each instruction given by the court must be interpreted with reference to the other instructions given and the pleadings and evidence in the case; if, when so considered, its language is not misleading, it will be upheld.</p> <p>4. Verdict — Form. A verdict will be sustained as to form, if the meaning and intention of the j’ury can be clearly ascertained therefrom.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Defendant under Sixteen Years of Age— Jurisdiction. The provisions of the act creating the juvenile court deprive the district court of all jurisdiction over a child under the age of sixteen years who is charged with a criminal offense, except to transfer the case to the juvenile court.</p> <p>2. -Plea in Abatement — Age of Defendant — Question for the Jury. A plea in abatement in a criminal action in the district court which alleges that the defendant is under the age of sixteen years raises an issue of fact upon which defendant is entitled to have a jury trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. School-lands — Duty of County Treasurer to Accept Money Tendered by Delinquents. When an assignee of an original or prior certificate of sale of school-lands tenders to the county treasurer of the county in which the land is located payment of delinquent interest on such certificate or delinquent taxes on the land it is the duty of the treasurer to receive and receipt for the money, even though such treasurer may know that forfeiture proceedings have beeff had to bar the rights of the certificate holder and that the lands have been resold, and may believe the second purchaser has the better right thereto.</p> <p>2. -Powers of County Treasurer. In such case the treasurer has no power or right to decide between rival claimants: to the land as to which has the better title. The treasurer is-, an executive and not a judicial officer, and has no judicial powers.</p> <p>3. Mandamus — Acceptance of Tender — Rights of Second Purchaser. In a mandamus proceeding brought by the person who made the tender to compel such treasurer to accept such tender the treasurer will not be regarded as the representative of the second purchaser, and any showing he may make of the rights of the second purchaser as against the plaintiff will not be considered as a defense to the proceeding.</p>

<p>Appeal from Dickinson district court; ' OSCAR L. Moore, judge.</p>

<p>1. SüRFACE-water — Obstruction of Flow Over a Highway. The rule that an owner may obstruct the flow of ■ surface-water upon his land applied.</p> <p>2. Judgments — Default. In a suit to enjoin the county commissioners from building a road which operated to hold surface-water upon plaintiff’s land the contractors were joined as defendants, but did not appear. It was said a judgment by default could not be taken against them, the evidence not establishing a prima facie case for plaintiff.</p>

<p>Railroads — Injury at a Crossing — Contributory Negligence. The undisputed evidence conclusively established that one who was injured at a railroad crossing was guilty of contributory negligence which precluded a recovery.</p>

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

<p>Error from Meade district court; Edward W. Madison, judge.</p>

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

<p>Sales — Authority of Agent — Replevin by Principal — Estoppel. The plaintiff owned a horse, which was in the possession of an agent, who was to sell it. Plaintiff agreed that the agent might deliver the horse to defendant, who was to use it and who was a prospective purchaser. Without plaintiff’s knowledge the agent sold the horse to defendant, who paid no cash but merely surrendered to the agent the latter’s note, which defendant held. Plaintiff brought replevin, and it was said that under the facts he was not estopped to assert ownership of the animal.</p>

<p>Misdemeanor — Sufficiency of Complaint. It was said that a complaint charging a misdemeanor in the language of the statute was sufficient.</p>

<p>1. Practice, District Court — Recalling Jury for Further Instructions. It was said the court had the right, upon its own initiative, to give the jury further instructions.</p> <p>2. -Answer to Inquiry of a Juror — Instruction. An answer of the court to the inquiry of a juror did not contain any independent statement of a rule of law, but referred the jury to the instructions already given, and was not improper.</p>

<p>Municipal Corporations — Special Tax for Improvements— Injunction. It was said that one whose property has been benefited by the construction of a sewer ought in fairness to bear some part of the cost, and in this case no reason appeared why plaintiff should not be denied relief in a suit to enjoin the collection of the special tax.</p>

<p>Railroads — Injury to Traveler — Instructions. In an action, to recover for injuries to a traveler, whose horse was frightened by steam emitted from defendant’s’engine, there was no error in refusing to give instructions in effect already given.</p>

<p>Parties — Action on a Note — Title. In an action on a note the rule applied that the defendant has no right to contest the title to the note further than is necessary to preclude his future liability thereon.</p>

<p>1. Tax Deeds — Consideration—Interest—Retroactive Lato. It was said that where a tax sale was made under a statute allowing interest at the rate of twenty-four per cent, the rate was not affected by a subsequent statute providing for a lower rate.</p> <p>2. - Computation of Consideration — Cost of Making Deed. It was said that the interest chargeable may be added to the cost of making the deed in determining whether the consideration is excessive.</p>

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

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

<p>Contempt — Violation of Injunction — Intoxicating Liquors. Appellant was convicted of violating an order enjoining him from keeping a place where intoxicating liquors were unlawfully sold, and the judgment was affirmed.</p>

<p>Contracts — Signature Induced by Fraud — Failure to Read. .Where a party was induced by fraud to sign a contract it was said he was not bound, even though he failed to read the agreement he signed.</p>

<p>Estoppel — Conduct. Where two tenants leased the same land from different landlords, and one took possession and raised a crop, the other tenant, who had full knowledge of the facts, was estopped to claim the crop, irrespective of which landlord had the superior title.</p>

<p>Evidence — Admission. Where one claimed salary as a bank officer, it was said a demurrer to his evidence because there was no allegation or proof that he owned the required amount of stock was properly overruled, the petition not having been demurred to and the answer having admitted that plaintiff was elected and had held the office, as alleged.</p>

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

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

<p>Chattel Mortgages — Sale by Mortgagee — Fraud Not Shown. Where it was claimed that a sale of personal property by a mortgagee was fraudulent, the evidence and special findings did not harmonize with the general verdict for the mort- , gagor, and the judgment was reversed.</p>

<p>1. Judgments — Petition to Modify — Waiver of Defects. Where a petition to have a judgment modified did not offer to place defendant in statu quo, it was said the defendant waived his rights in this respect by answerihg to the merits and going to trial upon all the issues tendered.</p> <p>2. - Statutory Order of Procedure — Waiver. The objection that the statutory order of procedure was not observed having been delayed until the motion for a new trial, it was said to have been raised too late.</p>

<p>PRACTICE, District Court — Cause Remanded — Motion for Judgment. It was said the district court had jurisdiction, after the mandate of this court reversing the judgment of the trial court was brought to its attention by a motion for judgment, to allow or deny the motion.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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