Volume 77 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Trespass—Mental Suffering — Immaterial Error. In an action for damages for unlawfully removing plaintiff’s household goods from a dwelling-house into the street, where it is admitted on the trial that under the pleadings plaintiff is not entitled to recover any damages for injury to her property, and it appears that she suffered no physical injury of any kind, and the only claim for damages is based upon mental suffering, fright, humiliation and disgrace occasioned by the acts of defendant in removing the goods, the judgment will not be reversed for alleged error in sustaining a demurrer to the evidence, since it appears that plaintiff was only entitled to nominal damages.</p>

Error from Riley district court; Sam Kimble, judge. STATEMENT. This is an action on a promissory note. It was commenced April 3, 1905, in the district court of Riley county, by the plaintiff in error against the defendant in error. The petition was. the ordinary form used in such actions. The note reads: “the largest in the world. “The Mutual Life Insurance Co. of New York, Organized Feb. 1, 1843. $138.83. March 1, 1904.

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

Error from Atchison district court; Benjamin F. Hudson, judge. STATEMENT. The plaintiff sued to recover judgment upon three promissory notes of $1000 each and to foreclose a mortgage securing them. The notes were executed by defendant Tremain R. Van Valkenburgh to J. K. Carolus, and were indorsed without recourse to the plaintiff. The mortgage covered certain real estate in White Cloud, Kan., upon which were situated a mill and a grain elevator.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Demurrer — Irrelevant Matter. A demurrer may not be employed to rid a single cause of action or defense of irrelevant, redundant or improper matter.</p> <p>2. Practice, Supreme Court — Intermediate Order — Review. Where a paper, designated as a demurrer, is treated as the equivalent of a motion to strike out, a decision of the same is no more than an intermediate order, which cannot be reviewed until final judgment is rendered.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Taxation — Redemption from Tax Sale — Limitation. A landowner has three years from the day of sale, and any additional time which may elapse until the tax deed is executed, in which to redeem from a sale for taxes.</p> <p>2. - Same. If the tax deed be executed on the last day of the three-year period for redemption the landowner has no additional time after that day in which to redeem.</p> <p>3. - Deed Void on its Face• — ■Lien for Taxes. Such a tax deed, although void on its face as a conveyance, vests in the grantee the lien for taxes.</p> <p>4. - Tender of Redemption Money — Second Deed to Correct Defects. After three years from the day of sale have elapsed and the tax deed has been executed a tender to the county treasurer of the amount necessary to redeem the land is unavailing to prevent the grantee from taking out a second deed to correct defects in the first one. •</p> <p>5. - Statutory Recitals in Deed — Payment of Subsequent' Taxes. The clause in the statutory form for a tax deed relating to the payment of subsequent taxes by the purchaser should be inserted in a deed based upon a sale to the county and an assignment of the certificate only when the purchaser has paid taxes subsequent to the assignment of the certificate.</p> <p>6. - Statement of Consideration for Assignment in Deed. A tax deed which recites a sale to the county and an assignment of the tax-sale certificate need not give a separate statement of the amount of taxes for each year, if there be more than one, which make up the consideration for the assignment. The statutory form merely requires that a gross sum, which equals the amount necessary to redeem, be stated.</p> <p>7. -Impeachment of Deed — ■Evidence. If the recitals of ■a tax deed which has been of record less than five years do not themselves impeach its validity evidence is necessary to overthrow it. An assumption of something which may or may not be true will not be indulged to defeat it.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Costs — Change of Venue — Criminal Action. In a criminal case tried in a county to which a change of venue has been granted, where the court in its discretion sequesters the jury from the time they are impaneled until their duties are completed, and where no other jury case is tried at that term, the fees of jurors and of officers summoning the jury and all the necessary expenses incident to the sequestration must be borne by the county where the action was instituted.</p> <p>2. -Action to Recover.' Where in such a case the board of county commissioners of the county in which the trial was had has audited, allowed and paid such fees and expenses it may maintain an action against the other county to recover such proper expenditures.</p> <p>3. Fees and Salaries — Summoning Jury. Although in such a case an officer is entitled to no fees for summoning jurors unless he return on the venire the amount of his fees and the items thereof, still, if it be admitted, as between the counties, that no such return was made but that the services were in fact rendered and the fees allowed, were correct in amount, and were paid to the officer, recovery thereof may be had.</p>

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Independent Contractor — Liability of Employer. It is a general rule that one who employs another to do a' piece of work is not liable for the other’s collateral negligence unless the relation of master and servant exists between them. The following exceptions to the general rule apply to and govern this case: (a) Whenever an injury to á third party results from the failure of the employer to perform a duty which he owes to such party he will not be permitted to avoid his liability by letting the performance of the work to another. (6) One who has a piece of work to perform which in its nature is dangerous to others is under obligation to see that it is carefully performed so as to avoid injury, and he cannot delegate the obligation to an independent contractor and thus avoid his liability in case the work is negligently done to the injury of another.</p> <p>2. Railroads — Injury by Eire Set Out by Independent Contractor. A railroad company let a contract to another to burn a fire-guard along its right of way. Through the negligence of the contractor the fire escaped his control and damaged the propérty of the plaintiff. Held: (a) That the work was performed as a part of the operation of the railroad, and that the railroad company could not, by delegating the work to an inr dependent contractor, avoid the liability placed upon it by statute (Gen. Stat. 1901, § 5923). (&) That, the work being of a character from which in the natural course of things injurious consequences to others might be expected to result unless means were adopted to prevent such consequences, the railroad company was bound to see that measures were taken to prevent such injury, and could not avoid the obligation by letting the work to an independent contractor.</p>

<p>Error from Miami district court; Alpheus Lane, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Descents and Distributions — Personal Property. The equitable title to the personal estate of an intestate descends at once to his heirs at law, subject only to the debts of the decedent. The legal title to the estate passes to the administrator, when appointed, for the purpose of enabling him to pay the debts due from the estate.</p> <p>2. Administrators — Appointment Unnecessary — Agreement. by Heirs. No administration of the personal estate of an intestate is necessary when there are no creditors. The heirs in such case may divide the assets of the estate among them- • selves, in hind or otherwise, by mutual agreement. When so divided each will become the owner in severalty of the portion so received.</p> <p>3. Limitation op Actions — Creditor of an Estate. Where no administrator has been appointed the claim of a creditor will become barred by the statute of limitations at the end of three years after the last date on which an administrator might have been appointed.</p> <p>4. Evidence — Foreign Statutes. The statutes of another state cannot be considered in this court upon a.review of a case unless they have been established as facts in the trial court and preserved in the record.</p> <p>5. Foreign Records — Authentication. Certificates of authentication examined and found to be sufficient under the statutes of the United States.</p>

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

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

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

Error from Mitchell district court; Richard M. Pickler, judge. STATEMENT. An information was filed by the county attorney in the district court of Mitchell county, charging one Cleevelin and his wife with the crime of maintaining a common nuisance in violation of the prohibitory liquor law, particularly describing the place.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deeds — Assignment of Certificate — Evidence. A tax deed which has been recorded more than five years and the other recitals of which are proper in form is not void on its face because of a recital which reads: “Now, therefore, I, E. F. Rieman, county clerk of the county aforesaid, for and in consideration of the sum of one hundred dollars and twenty-four cents, taxes, cost and interest due on said land for the years 1892, 1898, 1894 and 1895, to the treasurer paid as aforesaid, and on presentation to me of the .certificate of sale and by virtue of the statute in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said the heirs of Dewitt C. Rynearson, deceased, their heirs and assigns, the real property last hereinbefore described, to have and to hold unto him the said the heirs of Dewitt C. Rynearson, deceased, their heirs and assigns, forever; subject, however, to all rights of redemption provided by law.”</p> <p>2. -■ Construction. Por the purpose of upholding a tax deed which has been recorded more than five years its recitals will be liberally construed.</p>

Error from Greenwood district court; Granville P. Aikman, judge. STATEMENT. This was an action in the nature of ejectment, by the Belknap Hardware Manufacturing Company, to recover 320 acres of land from Henry E. Sleeth and Jessie Sleeth, his wife, who claim to be the owners, and W. L. Jost and wife, tenants upon the land.

<p>SYLLABUS BY THE COURT.</p> <p>Municipal Corporations — Annexation of Territory — Right to Question Validity of Proceedings. The validity of proceedings taken by city officers under statutory authority extending the corporate boundaries of a city so as to annex a tract of land can only be questioned in a direct proceeding prosecuted at the instance of the state by proper public officers. The case of Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417, followed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highways — Enjoining Obstruction — Authority of County. Attorney. The county attorney has power to bring a suit in the name of the state to enjoin obstructions to travel upon a public highway without authority from the board of county commissioners and notwithstanding the disinclination or refusal of the local highway officers to move in the matter.</p> <p>2. -Proceedings to Open — Validity of Bond. A bond given at the institution of proceedings to open a road under the law of 1868 is not void because signed by one petitioner, as principal, and by a single surety, who is also a petitioner.</p> <p>3. - Discontinuance of Use of Opened Road — Limitation of Time to Open. The statute vacating roads and barring authority for opening róads which have remained unopened for seven years after orders have been made or authority has been granted for opening them does not apply to a discontinuance of use after a road has been opened.</p> <p>4. - Adverse Possession — Continuing Nuisance — Acquiescence — Abatement. A private individual cannot obtain title to a public highway by adverse possession. Lapse of time will not bar the remedies of the state against encroachments upon a highway. An obstruction to the public use of a highway is a continuing nuisance, and no equities in favor of a person committing such a nuisance can be founded upon the acquiescence of the highway or other officials or upon their laches in taking steps to punish or abate it.</p> <p>5. Practice, Supreme Court — Immaterial Error — Findings of Fact and Conclusions of Law. It must appear that the denial of a request upon the trial court to state findings of fact and conclusions of law separately has prejudiced the substantial rights of the party making the request before a judgment will be reversed because of such denial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Verdíct — Scope. A general finding in favor of either party is a finding in his favor of all facts necessary to constitute his claim.</p> <p>2. Evidence — Review. Oral evidence upon which a finding is made cannot be reviewed in this court, except so far as may be necessary to determine whether there was competent evidence sufficient to support the finding.</p> <p>3. ■-■ Letter Introduced and Identifiedr^-Secondary Evidence of Contents. It is a general rule that where a witness has identified a letter introduced on the trial as his writing it is not proper to ask whether statements such as counsel may suggest are contained in it, the letter being the best evidence of the fact.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Exemplary—Failure to Deliver a Telegram. The case of Telegraph Co. v. Lawson, 66 Kan. 660, 72 Pac. 283, followed, and held, that the evidence in respect of the failure of defendant to deliver a death message showed such wanton and reckless disregard of the rights of the plaintiff as to warrant exemplary damages, and that the amount allowed by the jury, though somewhat excessive, will not be disturbed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury to Passenger on a Freight-train — Erroneous Instruction. In an action to recover damages for injuries sustained while riding as a passenger in a caboose attached to a local freight-train an instruction that “it is the ■duty of a railway company . . . transporting passengers . . . on a freight-train to exercise the highest degree of care and diligence to which such trains are susceptible, and a failure to use such degree of care is negligence on the part of the railway company,” is erroneous, where no modification or explanation thereof is elsewhere given.</p> <p>2. - Duty of Carrier. It is the' duty of a railroad company, when it carries passengers in a caboose or other car attached to a local freight-train, to use the highest possible degree of care and diligence in the protection of the safety of such passengers to which such train is susceptible, considering its construction, equipment and use as a carrier of freight.</p>

<p>Appeal from Russell district court; Jacob C. Ruppenthal, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Elections — County Office — Pleading Cause of Contest — Demurrer. A general charge in the statement of the contestor of a county election of error and mistake by the boards of judges in designated precincts in counting the ballots and by the board of canvassers in declaring the result is sufficient as against an attack by demurrer, and is not void for indefiniteness.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mines and Minerals — Lease—Forfeiture—Abandonment—Cancelation of Contract. Under a lease of land for gas, oil or coal purposes the lessee was given the exclusive right to dig and bore for gas, oil or coal for a term of twenty years, and as much longer as any of these could be found in paying quantities; also the right of way on and over the land to explore and operate, including the right to erect buildings and appliances for procuring gas, oil or coal on the land and the right to remove all improvements and machinery when the land was abandoned or the lease had expired. The only consideration for the lease, aside from the technical one of one dollar, was a royalty of eight cents a ton on coal mined and fifty dollars per annum for the gas procured from each well, and sufficient gas to supply two stoves in the lessor’s farmhouse. No grounds of forfeiture were specified. Held, in a suit to cancel the lease, that it contemplated early exploration and operation, and a failure on the part of the lessee to begin operations for a period of about seven years is equivalent to a surrender by the lessee and gave the lessor the right to treat the contract as abandoned.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Eminent Domain — Measure of Damages. A railroad company condemned for its corporate use portions 'of two blocks divided into lots, comprising part of an addition to a city. The two blocks were fenced with two others, making a tract of about eight acres nearly in the form of a square, which was' cross-fenced. The alleys were- not opened through the tract, and streets and alleys were not followed in that part of the' city. The owner sued for damages on account of the land taken and the injury to the remainder of the two blocks from which land was taken. Held: (1) The plaintiff was entitled' to compensation according to the most advantageous and profitable use he could make of his land. (2) The defendant could not insist that the plaintiff treat his entire holding as a farm in order to minimize his damages.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Sale op Land — Action for Purchase-price — Breach of Contract ■ for a Deed — Defendant in Possession — Equitable Relief. In an action by a vendor to recover the purchase-price of land sold under a contract which provided that the vendor should make a sufficient deed and furnish an abstract showing perfect title the answer and cross-petition admitted that defendant secured possession under the contract, but alleged that plaintiff had failed to tender a sufficient conveyance; that the abstract tendered disclosed an outstanding claim against, the land, the holder of which had threatened to eject defendant, and had commenced an action against him in -ejectment and for rents and profits. It also alleged a refusal on the part of plaintiff to correct the defects in the title, and averred a willingness to pay the balance when the title should be perfected. It asked that plaintiff be required to perfect the title, and for other affirmative relief. Held, that it was the duty of the court to overrule the demurrer to the answer and cross-petition and retain the cause until the equitable rights of the parties could be determined.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Judicial Notice — Location of a Railroad. The courts will take judicial notice of the route of a railroad which has been built and operated for a number of years from one station to another within the state of Kansas, and that, for a great portion of the distance between such stations, such route is beyond the boundaries of this state and within another state.</p> <p>2. Railroads — Interstate Commerce. A railroad 'company in conveying freight over such route between such stations is engaged in interstate commerce.</p> <p>3. Constitutional Law — Police Regulations — Interstate Commerce. While the state has the power to make reasonable police regulations affecting the operation of railroads operating within the state and also engaged in interstate commerce, the regulations should be such only as tend to the efficient and orderly discharge of the duties of the railroads to their patrons within the state, and to the safe-guarding of persons and property therein, and impose no considerable burden upon the interstate commerce.</p> <p>4. Railroads — Penalty for Failure to Furnish Freight-cars■— Valid Statute. The provision of chapter 345 of the Laws of 1905 which imposes a penalty of one dollar per day upon each car for delay in furnishing freight-cars ordered, and permits no excuse therefor except “strikes, unavoidable accidents, or other public calamity,” is not invalid, but is a reasonable police regulation and imposes no considerable burden upon interstate commerce.</p>

Error from Stafford district court; Jermain W.. Brinckerhoff, judge. STATEMENT. Gibson brought a foreclosure suit in the district court of Stafford county against the makers of a mortgage on the east .half of the northeast quarter of section 26, township 25, range 12, in Stafford county, and made Larabee a defendant, he having a tax deed of record on the land.

<p>SYLLABUS BY THE COURT.</p> <p>1. Execution — Levy upon Personal Property — Seizure. In making a levy of execution upon a field of standing corn the officer need take only such possession as the nature of the property will permit. He need not do that which, but for the writ, would make him a trespasser. It is sufficient if he go to the premises, there do some open and unequivocal act which as nearly as practicable amounts to a seizure, and indorse the levy on the writ.</p> <p>2. - Sufficient Levy on Growing Crops. In this case a writ of execution was issued against the property of a man and his wife. The man owned a field of standing corn. The officer went to the neighborhood of the corn, found the wife, her husband being away, read the execution to her, and told . her he intended to take the corn. The officer then went to the corn-field with a witness and posted at a public corner of the field a notice that the corn was taken on execution and was in his possession. The levy was duly indorsed on the writ. Held, a sufficient levy.</p> <p>3. -Retaining Possession. It was not essential to the validity of the levy that the officer should station and keep a guard over the field.</p>

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

Error from Chautauqua district court; Granville P. Aikman, judge. STATEMENT. W. L. Christie sold to Roy Scott at different dates a wagon, a buggy and a cultivator, and, to secure the payment of the purchase-price, took separate promissory notes for the amount of each purchase.

Error from Allen district court; Oscar Foust, judge. STATEMENT. This is an action in quo warranto to cancel the charter of the city of Gas, in Allen county, and to enjoin the collection of taxes levied upon real estate situated within the limits of that city. A demurrer was sustained to the petition, and, the plaintiff electing to stand upon its pleading, the case was dismissed at the cost of the plaintiff, and it brings the' case here.

Error from Leavenworth district court; James EL Gillpatrick, judge. STATEMENT. This action was commenced in the district court of Leavenworth county September 5, 1905, by the defendant in error against the plaintiff in error, upon a promissory note.. The petition was in ordinary form, the note being attached as an exhibit, which reads: “$500.

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Dismissal of Actions. Where hoth parties claim to own and to be in possession of real estate, the subject of the action, and each prays for judgment quieting title and produces evidence tending to support such claim, presenting substantial questions of law and fact under the issues duly submitted for decision and ’judgment, it is error for the court to render a general judgment of dismissal over the objection of a party to the action.</p>

Error from Bourbon district court; Walter L. Simons, judge. STATEMENT.

Error from Reno district court; Peter J. Galle, judge. STATEMENT. The question for determination in this case is, Who is entitled to the proceeds of a benefit certificate issued by the Modern Woodmen of America on the life of William Pilcher. The principal controversy arises between his heirs by blood, who will be referred to hereinafter as the Pilcher heirs, and his stepchildren, who are the children and heirs of his deceased wife.

<p>SYLLABUS BY THE COURT.</p> <p>Cities and City Officers — Defective Sidewalk — Notice—Verdict and Special Findings Inconsistent. Where, in an action against a city for damages received on account of a defective sidewalk, the jury return a general verdict for the plaintiff, . and with it present special findings of fact which show that the officers of the city did not have either actual or constructive notice of the defect prior to the injury, it is not error for the court to set aside the verdict and enter judgment in favor of the defendant for costs.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Breach of Contract — Anticipated Profits. ' Anticipated profits may be allowed as damages upon the breach of a contract, where the business undertaken is not new or untried, and has been established to such an extent that a safe basis can be found upon which to estimate such profits with reasonable certainty.</p> <p>2. - Expert Testimony — Cost of Drilling Wells. In an action by the contractor for damages for breach of a contract to drill gas-wells the testimony of witnesses who have had experience in drilling gas-wells upon the same farm, and other wells in the vicinity, where the strata appear to be the same and the conditions similar, is competent to show the cost of doing the work contracted for and prevented by the owner.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Fire-insurance — • Oral Contract ■ — Definiteness. In order to recover damages for the loss of property destroyed by fire, on the ground of the failure to carry out the terms of an oral contract for insurance, the evidence should show with reasonable definiteness that the minds of the parties met upon the subject-matter of the contract and agreed upon its terms.</p> <p>2. -Breach of Contract — Action against Agents — Demurrer to Evidence. In an action like the one referred to in the preceding paragraph, where the evidence leaves it uncertain as to whether the oral contract for insurance was one which required defendants to write the insurance in a certain company of which they were agents, or, on the other hand, left it to the agents to determine in what company it should be placed, and is likewise indefinite and uncertain with respect to the subject-matter of the contract, the risk insured against, the duration of the risk, the amount of the insurance and the premium to be paid, no recovery can be had, and a demurrer to the evidence should be sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Cities and City Officers — Paving Streets — Special Tax— Injunction. The power given to cities of the second class to grade streets, avenues and alleys and pay therefor by a general tax on all taxable property within the city, and the power to construct paving, curbing and guttering by resolution, as provided in section 1016 of the General Statutes of 1901, are separate and independent of each other, and a special assessment levied against abutting property owners to pay for paving, curbing and guttering constructed in pursuance of such a resolution will not be enjoined on account of any irregularity in the action of the city council in making the grade upon which such paving, curbing and guttering rests, such irregularity ■ not affecting the amount of such special assessment.</p> <p>2. -Power to Modify Prior Action. Where a city council acquires jurisdiction to pave, curb and gutter a street by resolution passed and published, as provided by section 1016 of the General Statutes of 1901, it has the power to take all-the necessary steps to construct such pavement properly, and may amend or modify its action therein without losing the jurisdiction so acquired.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contracts — Attorney and Client-*-Compromise of Suit — Public Policy. An agreement between a client and his attorneys for ' the services of the latter in conducting a proposed lawsuit, wherein it is .agreed that the client shall not settle, compromise or otherwise dispose of the cause of action without the written consent of the attorneys, is contrary to public policy and void.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleading — Title and Ownership — Adverse Possession — Tax Title — Election. One holding adverse possession of land may protect his possession and right to the land by the purchase of an outstanding tax title against it, and when his ownership is attacked may set up a claim o‘f title both by adverse possession and under his tax deed. He cannot be required to</p> <p>• elect upon which right he will rely, as they are not necessarily inconsistent.</p> <p>2. Evidence' — Adverse Possession — Declarations of Occupant. In an action where there is an issue of adverse possession of land the declarations of the occupant which' import title in himself and give color to his possession are admissible in evidence as verbal parts of his act of occupation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Abstract of the Record — Counter-abstract. Under rule 10a of this court the plaintiff in error may make the claim in his brief that a finding of fact returned by the jury is not supported by any evidence without being obliged to abstract the evidence to support the claim. In such case it devolves upon the defendant in error to abstract such portions of the evidence as he contends support the finding, and if he fail to do this the claim of the plaintiff in error will be taken as confessed.</p> <p>2. —■- Causes Determined upon Abstracts.' Causes are no longer to be determined in this court upon the records, but upon abstracts prepared in accordance with the provisions of rule 10a.</p> <p>3. -Preparation of Abstracts. The subject of the preparation of abstracts discussed..</p>

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

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

Error from Finney district court; William Easton Hutchison, judge. STATEMENT. This is a suit by S. A. Bullard against the board of county commissioners of Finney county and William Ford, as treasurer of that county, to enjoin the collection of taxes assessed against a body of land owned by plaintiff in Finney county.

<p>SYLLABUS BY THE COURT.</p> <p>I. Constitutional Law — Taxation — Legislative Powers — Municipal Corporations. Chapter 115 of the Laws of 1907, authorizing and requiring cities having a population of more than 50,000 to have and maintain a system of public parks, parkways and boulevards, and' providing for the appointment by the mayor of a board of park commissioners to devise, improve and superintend the same, with authority to issue city bonds and levy taxes therefor, subject to the restrictions contained in the act, is a valid and constitutional enactment, so fai; as its operation and effect is challenged in this action.</p> <p>• 2. - Valid Tax Levy. The levy of a tax by such board of park commissioners of one-half of a mill on the dollar for general park purposes is a valid exercise of power under such act.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Cities and City Officers — License Ordinance — Penalty — Statutory Authority. Under a statute authorizing a city to pass ordinances for the levy and collection of license taxes, and to prescribe penalties for the enforcement of such ordinances by inflicting a fine not exceeding one hundred dollars or imprisonment not exceeding three months, or both such fine and imprisonment, for each offense, an ordinance imposing a fine of not less than five dollars nor more than one hundred dollars or imprisonment not exceeding thirty days, or both such fine and imprisonment, for each violation, is within the limits of the statutory grant of power.</p>

Original proceeding in mandamus. STATEMENT. There is practically no issue of fact under the pleadings.

<p>SYLLABUS BY THE COURT.</p> <p>Banks and Banking — Transfer of Stock on Books — Lien—Indebtedness of Registered Holder. Section 52 of chapter 47 of the Laws of 1897 (Gen. Stat. 1901, § 458) forbids a transfer of shares of bank stock on the books of the bank without the consent of the board of directors when the registered holder is indebted to the bank upon obligations matured and unpaid; and a transfer under such circumstances may be refused by the bank notwithstanding the fact that the party demanding the transfer acquired the shares from the registered holder at a time when the registered holder was not indebted to the bank.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations — Special Tax for Paving — Fraud —Injunction. In a suit to enjoin a special assessment for street paving, on the ground that the proceedings of the city council were void under the statute of frauds (Gen. Stat. 1901, §§ 3175, 3176) because a member of the city council was a stockholder in the brick company which furnished material for the paving and another member, of the council accepted employment as a laborer under the contractors, an injunction is properly denied where it appears from the findings of the court that the proceedings of the mayor and council were in all respects regular, that no fraud was shown on the part of any member of the council, and that no member of the council was interested directly or indirectly in the contract for the improvement.</p> <p>2. -Performance of the Work — Acceptance—Conclusiveness. Where the mayor and council have passed upon the question and accepted the work of a street improvement as satisfactory their action is conclusive and binding upon the property owners, in the absence of any showing of fraud in such acceptance.</p>

Error from Atchison district court; Benjamin F. Hudson, judge. STATEMENT. This is an action of ejectment. It was commenced in the district court of Atchison county April 29, 1905, to recover the possession of a small tract of land in that county. The plaintiff recovered judgment, and defendant Georgia Ann St. Clair brings the case here, defendant George Grimes being made a defendant in error.

<p>SYLLABUS BY THE COURT.</p> <p>1. Death- — -Seven Years’ Unexplained Absence — Presumption. The rules of law stated on the former hearing of this case are reaffirmed.</p> <p>2. -Evidence. The evidence of additional inquiries for the missing man, the widely extended publication of an offer of reward for information concerning him, the notoriety of this prolonged litigation, and the further lapse of time, were proper matters for consideration in determining whether death should be presumed.</p> <p>3. - Conclusive Proof Not Required. While the parents were bound to exercise reasonable diligence in their search, they were not required to prove conclusively that he was dead; they were only bound to produce such evidence as would fairly lead to this presumption.</p>

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

Error front Shawnee district court; Alston W. Dana, judge. STATEMENT. E. F. Madden sued the defendants in error to recover damages in the sum of $1400 ‘for refusing to convey certain real estate, which he claimed the defendants had agreed to sell him under a written contract. On the trial the court .sustained a demurrer to the evidence, and plaintiff brings error. The material facts are as follow: The real estate is located at Hays and is known as the Brunswick hotel.

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

<p>SYLLABUS BY THE COURT.</p> <p>Tax Sale — Purchase of Certificate by Guarantor of Mortgagee— Statute of Limitations — Lien for Taxes. The owner of a note secured by a real-estate mortgage assigned both instruments, and by contract written on the back of the note guaranteed the payment of interest when due and payment of the principal twelve months after maturity. Before the statute of limitations had run against the guaranty the guarantor purchased the land at tax sale. An assignee of the tax-sale certificate took a tax deed of the land, which, however, was void on its face. A suit was brought to foreclose the mortgage after the statute had barred the remedy upon the guaranty. Held: (1) The purchase of the land at tax sale by the guarantor did not effect a payment of the taxes as such a purchase by. the mortgagor would have done. The guarantor and his assignee were under no obligation to the state, to the mortgagor or to the holder of the mortgage to pay the taxes on the land, and consequently had the right to take a tax title thereto, at least as against all the world except -the holder of the mortgage; and the holder of the mortgage could object no further than might be necessary to protect, his lien. (2) The tax-deed holder, being an assignee of the guarantor and in privity with him, could plead the statute of limitations against the guaranty. (3) The remedy on the guaranty being barred by the statute of limitations, the guaranty was no longer a factor in the relations of the parties and the tax-deed holder was entitled to a first lien on the land.</p>

Error from Lane district court; Charles E. Lob-dell, judge. STATEMENT. The numerous defendants in error brought this suit to recover the possession of their interests in the northeast quarter of section 22, township 17, range 28, in Lane county, and the southeast quarter of section 14, of the same township, and to partition the same.

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

<p>SYLLABUS BY THE COURT.</p> <p>Tax Deed — Residence of Assignee of Certificate of Sale. A tax deed .which has been recorded more than five years will not be deemed void on its face merely for the reason that it does not recite the county and state where the assignee of the certificate of sale resides.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Quieting Title — Suit against Tax-deed, Holder — Statute of Limitations. Where a suit to quiet title to land is begun against several defendants less than five years after a certain tax deed thereto has been recorded, and the holder of such tax deed is not made a defendant in the suit or brought into court until more than five years after the recording of his deed, the suit will be deemed to be commenced as to him when he was brought into court, and he will then be entitled to avail himself of the protection and presumptions which the lapse of the statutory limitation gives to a tax deed.</p> <p>2. Tax Deed — Compromise Act — Granting Clause — Consideration. A tax deed executed under the compromise provision (Laws 1893, eh. 110, § 4; Gen. Stat. 1901, § 7672), in substantial compliance with the requirements of that provision, and attacked more than five years after it was recorded, is not void on its face because the granting clause of the deed does not specify the particular years for the taxes of which the land was conveyed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Intervention—Cases Not Provided for in the Code. A district court, acting upon principles of manifest justice, may, in cases not provided for by the code of civil procedure, permit one not a party to the suit to intervene, either before or after judgment, for the protection or advancement of some right with reference to the subject-matter of the litigation which he holds.</p> <p>2. - Diligence Must be Shown. In such a case the application for leave to intervene must show that the applicant has . been diligent in seeking the aid of .the court.</p> <p>3. -Discretion of the Court. Such an application is addressed to the sound discretion of the court, and an order denying leave to intervene will not be set aside unless it clearly appears that the discretion permitted in the matter has been abused.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Statute op Limitations — Foreclosure of Mortgage — Tax-deed Holder. One who has procured a tax deed to a tract of land is not a privy in title to the former owner of the land, and where the former owner has executed a promissory note, secured by a mortgage on the land, the holder of the tax deed cannot plead the statute of limitations as a defense in an action brought by the holder of such note and mortgage to foreclose the mortgage on the land.</p> <p>2. Tax Deed — Recital of Amount for Which Land Was Bid Off for County. A tax deed which has been issued and recorded for more than five years is not void upon its face for the reason that it does not recite the amount for which .the county treasurer bid in the land for the county at the tax sale, when the deed does recite that the treasurer did, nearly three years thereafter, assign a tax certificate thereon “for the sum of sixty-one dollars and seventy-eight cents, being equal to the cost of redemption at that time,” and the deed further recites the amount of the delinquent taxes for each year; the amount for which the -treasurer bid off the land is then a matter of simple computation.</p>

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

<p>Error from Cowley district court; David M. Dale, judge pro tem.</p>

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

Error from Smith district court; Richard M. Pickler, judge. STATEMENT. This case was once before in this court, and in the opinion then rendered (72 Kan. 559) a general statement of the facts will be found. The findings of fact made by the. jury and approved by the court on the second trial indicate, it will be observed, a considerable departure from the case as before submitted. The special findings of the jury are as follow: “(1) Ques.

Error from Cowley district court; Carroll L. Swarts, judge. STATEMENT. . This is an action involving proceedings to condemn land for a right of way for a railroad company, which land the plaintiff in error claims to own, and in which the Hill Investment Company and George S. Howard each claim to have an interest.

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Quitclaim Deed — Purchaser in Good Faith. In order that a purchaser taking title by quitclaim deed may be a purchaser in good faith it is not necessary that he should catechise the vendor respecting the latter’s estate in the land when the vendor on the face of the record appears to have an interest or estate to convey.</p> <p>2. -Prior Unrecorded Deed Held Inferior to a Quitclaim Deed. The rule that if a purchaser by quitclaim deed act in good faith, pay a valuable consideration, and have no actual notice of outstanding equities or unrecorded instruments, he will take title subject only to .those rights which are discoverable through an investigation of the various public records and by the exercise of reasonable diligence in making proper examinations and inquiries applied, and the rights of a quitclaim deed holder held to be superior to those of a grantee under prior unrecorded conveyances.</p>

Error from Reno district court; Peter J. Galle, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>■ 1. Information — Arson—Allegation of Ownership of Property. An information which, in addition to the formal parts, charges “that on or about the 26th day of November, 1906, in the night-time, in said county of Ellis and state of Kansas, Leonard Stanton, Philip Thurston, Chet Thurston, Frank Thurs-ton, and Clarence Clarkson, did then and there unlawfully, feloniously, wilfully and maliciously set fire to and bum a certain frame building, to wit, a chicken-house, situated on the southwest quarter of section 11, township 11, range 17, in Ellis county, Kansas, the property of R. G. Pinch,” is sufficient as against a motion to quash the same on the ground that it does not sufficiently state the ownership of the property.</p> <p>2. Criminal Procedure — Presence of Defendant — Right Waived. While a person indicted or informed against for a felony has the -right to be personally present at every step of the trial on such charge, he may waive that right; and if while at liberty on bond he is voluntarily absent, without having been excused by the court, when the jury are brought into court at their request, after they have retired to consider their verdict, and the court then permits a portion of the evidence, which had been delivered in the presence of the defendant, to be read from the stenographer’s notes, he will be deemed to have waived such right, and a new trial will not be granted by reason of the absence of the defendant during such reading.</p>

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

Error from Dickinson district court; Oscar L. MOORE, judge. STATEMENT.

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

<p>SYLLABUS BY THE COURT.</p> <p>Street-railways — Personal Injuries — Sufficiency of Evidence of Negligence. Evidence tending to establish the following facts held sufficient for presentation to a jury to determine whether the injury referred to was occasioned by the negligence of the defendant, an electric railway company: The plaintiff was waiting for a car in a place commonly used for that purpose; as the car approached the trolley left the wire and flew up, striking and breaking the globe of an electric light, pieces of which fell upon plaintiff’s wrist, causing the injury, complained of; the rope by which the trolley-pole was controlled was not fastened to the car, as the rules of the company required, but was hanging loose; the trolley had previously left the wire at the same place, and the globe of the same lamp had at least twice before been broken by a trolley, but perhaps not in the same manner.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Highways — Defective Culvert — Notice to Township Trustee— Proof Insufficient. In an action against a township to recover for injuries caused by a defective culvert, where the- only proof of notice to the township trustee of the defect is the statement of the plaintiff in his direct examination that he had a conversation with the trustee and gave him the information, but upon cross-examination plaintiff admits that in the conversation he failed to inform the trustee which one of several culverts was defective, the proof is insufficient to establish actual notice of the particular defect.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Tenants in Common — Simultaneous Settlements on the Same Tract of School-land. Where two persons settled upon a tract of school-land at the same time, and each made the required improvements and continued his residence thereon and acquired the right to purchase the same, and it was upon notice and hearing in the probate court determined that each had such right, and each of such settlers has made payment for the land and obtained a certificate thereof accordingly, the rights of such settlers appearing to be equal, they are tenants in common of such land.</p> <p>2. - Recovery of Undivided Interest. A, tenant in common may recover his undivided interest in lands against his co-tenant who denies his right thereto.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Private Parties and Municipal Officers — Bond Issue — Public Policy. An agreement between the owners of mills operated by water-power and the officers of a township providing that, if township bonds should be voted by the electors and the proceeds thereof used in rebuilding an important highway which was essential to the convenience of the public, and which when built would operate to close up a new channel of a stream that had been cut around the mills and mill-dam during a flood and turn the water back into the old channel of the stream and over the mill-dam, thus restoring the water-power lost by the cutting of the new channel, the mill-dam owners would pay an amount equal to the interest on the bonds for a period, of ten years, is not contrary to good morals or public policy.</p> <p>2. - Ultra Vires — Mutuality—Estoppel. After the township has substantially performed its part of such agreement the mill owners cannot successfully defend against an action to enforce their liability upon- the agreement on the ground that there was a want of power in the township board to make the agreement or that it was lacking in mutuality.</p> <p>3. -Duress. The agreement cannot be regarded as having been made under duress because the officers bf the township declined to call a bond election for procuring the means to rebuild the highway and close the new channel unless the mill owners would agree to share in the expense of the improvement and a refusal by the mill owners to accept the terms and sign the agreement would have placed them in an unenviable light with their patrons.</p> <p>4. Evidence •— Opinion Testimony. Non-expert witnesses may give opinions of conditions and situations with which they are familiar but which it is difficult to embody in words or reproduce before the jury.</p>

<p>Error from Hodgeman district court; Winfield H. Sheldon, judge pro teto.</p>

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

Error from Sedgwick district court; Thomas C. Wilson, judge. STATEMENT. ON April 3, 1906, the Howard Mills Company began proceedings to condemn certain real estate for its use which belonged to the Schwartz Lumber and Coal Company. During such procedure, and on May 17, 1906, the Schwartz Lumber and Coal Company filed its petition in the district court of Sedgwick county to enjoin this appropriation of its property.

<p>SYLLABUS BY THE COURT.</p> <p>Contracts — Sale of Personalty — Offer and Acceptance. The defendant sent a letter to the plaintiff which reads: “Gentlemen — Kindly quote me your lowest price on a car of bright Early Ohio seed potatoes. I am not particular about the shipment being made for several weeks, but if the mild weather continues it will not be long before we will need them.” Plaintiff answered by a letter which reads: “Referring to yours of 13, beg to advise that we would quote you on a car or two of our Wisconsin Ohio potatoes at 88c per bushel sacked, delivered Abilene. Quote this price to you subject to your acceptance by Wednesday. If you wished us to hold the stock for you beyond the first of February we would sell you under contract and ask you to carry $100 per car of the cost.” The defendant replied by the following telegram: “Letter received, accept for two cars, send along your contracts.” Held, that this correspondence does not constitute a contract for the sale of two car-loads of potatoes at 88 cents per bushel, delivered at Abilene, but the defendant by his telegram intended to accept the offer contained in the last clause of the plaintiff’s letter.</p>

Error from Jewell district court; Richard M. Pickler, judge. STATEMENT. This was an action brought by J. M. Brandon against the railway company to recover damages for injuries received by him while a passenger on one of the railway company’s cars and caused by a derailment of a portion of the train. The car in which Brandon was riding left the rails and ran for about 700 feet upon the ties.

<p>Error from Cherokee district court; Corb A. Mc-Neill, judge.</p>

Error from Atchison district court; Benjamin F. Hudson, judge. STATEMENT. Plaintiff in error is a fraternal-insurance association. In 1892 Andrew Nelson, the deceased husband of the defendant in error, was admitted to membership in the association and received a certificate or policy of insurance, by the terms .of which the association agreed to pay, upon certain conditions, the amount of one assessment, not exceeding $2000, to his beneficiary at his death.

<p>SYLLABUS BY THE COURT.</p> <p>1. Stockholders — Insolvent Corporation — Contribution for Defending Litigation. Before a stockholder of an insolvent corporation is entitled to contribution from the other stockholders for costs and expenses incurred in defending litigation it must appear that the defense inured to their benefit, and that the costs and expenses were paid to relieve his co-stockholders of a common burden.</p> <p>2. -Same. A stockholder of an insolvent corporation is not entitled to contribution from his eo-sto'ckholders for costs and expenses incurred in defending an action brought against _ him to recover upon his double liability, where it appears that the only defense urged was personal to himself and in no way benefited his co-stockholders.</p> <p>3. Statute op Limitations — Suspension — Pendency of Other Proceedings. In order that the pendency of other proceedings will have the effect to toll the statute of limitations upon a cause of action the proceedings must be such as prevent the enforcement of the remedy by action.</p> <p>4. - Contribution — Stockholders of Insolvent Corporation. The statute of limitations will run upon a cause of action in' favor of a stockholder of an insolvent corporation for contribution from his co-stockholders, based upon a claim in his favor against the corporation, notwithstanding the pendency of an action against him upon his double liability in which he seeks to offset the same cause of action.</p>

Error from Ford district court; Edward H. Madison, judge. STATEMENT. Charles E. Stone, an unmarried man about twenty-one years of age, was employed by the. Atchison, Topeka & Santa Fe Railway Company at Dodge City as a water-changer. He had been employed at that business about fourteen days, but was familiar with its. duties. Before being employed as water-changer he had been a “roustabout” in the roundhouse at that place about three years.

Error from Wilson district court; Leander Still-well, judge. STATEMENT. This was an action brought by Eli Stark and Mary M. Stark, husband and wife, against the Kansas Buff Brick and Manufacturing Company, to recover damages for the death of their son, Arthur, who was killed while in the employ of the company. Plaintiffs recovered a judgment, and the company brings the case here for review.

Error from Wyandotte court of common pleas; William G. Holt, judge. STATEMENT. This is an action on an accident-insurance policy issued December 20, 1904, to William Despain by the Pacific Mutual Life Insurance Company, of California, to recover $2000 as indemnity for the loss of the sight of both eyes, resulting, it was alleged, from an accidental injury sustained on January 1, 1905.

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

Error from Sedgwick district court; Thomas C. Wilson, judge. STATEMENT.

<p>SYLLABUS BY THE COURT.</p> <p>Evidence — Agency—Husband and Wife. Where the issue is whether a husband was the agent of his wife with authority to sign her name to a check upon her bank account, evidence that he frequently signed checks on her account with her knowledge and consent is competent.</p>

Error from Shawnee district court; Alston W. DANA, judge. STATEMENT. This action was commenced in the district court of Shawnee county by Laura J. Bledsoe to recover damages suffered on account of the alienation of the affection of her husband, A. Scott Bledsoe, by the defendant, Etta L. Seaman. The defendant moved for judgment in her favor on the pleadings, which motion was allowed and judgment entered accordingly. The plaintiff seeks to reverse that judgment.

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

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Chattel Mortgages — Lien on Accession — Potential Existence ■ — Duration of Lien. A chattel mortgage on domestic animals which in terms covers the increase thereof, and which is executed during the period of gestation and duly filed for record, creates a lien upon the increase when the same are born, which will continue so long as the mortgage lasts, not only as between the mortgagor and mortgagee but as against creditors and bona fide purchasers of thfe mortgagor.</p> <p>2. -Priority of Liens — Burden of Proof. In an action between the holder of such a chattel mortgage and a creditor of the mortgagor involving the right to the possession of the increase the burden is upon the mortgagee to establish that such increase was conceived before the mortgage was given, and was therefore in actual or potential existence.</p> <p>3. —.-Rights of Attaching Creditor. An attaching creditor may acquire greater and better rights to mortgaged personal property belonging to his debtor than the debtor himself could claim at the time the attachment is levied.</p>

<p>.1. Taxation — Failure to List Personal Property — Correction of Assessor’s Returns — Involuntary Payment — Recovery of Illegal Tax. It was said the failure of a taxpayer to list all his property will not prevent him from recovering taxes on personal property wrongfully charged against him under color of section 7.599 of the General Statutes of 1901 and paid under the compulsion of a tax warrant.</p> <p>.2. - Case Followed. The rule announced in the case of Douglas County v. Lane, 76 Kan. 12, 90 Pac. 1092, followed.</p> <p>3. -Levy and Assessment — Authority—Validity. It was, said that where taxes have been brought upon the tax-roll by a specific kind of authority they stand or fall by virtue of that authority.</p> <p>SYLLABUS BY THE' COURT.</p> <p>‘Taxation — Payment under Protest and Compulsion — Action to Recover — Interest—Liability of a County. The general interest statute allowing creditors to receive, in the absence of contract, interest upon money after it becomes due cannot be interpreted to impose a liability upon a county, which is a political subdivision of the state, organized for purely governmental purposes and endowed with gztasi-corporate powers only; and, in an action against county officers to recover taxes wrongfully exacted over the protest of the taxpayer and through the compulsion of a tax warrant, interest on the money from the time it was paid (it then being due) cannot ■be recovered.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Drainage Districts — Lands that■ May he Included. The drainage act (Laws 1905, ch. 215) authorizes the formation of districts to include lands subject to injury and damage from overflow as well as lands subject to actual overflow.</p> <p>2. -Same. The legislature has power to provide for the organization of such districts, which may embrace parts of incorporated cities with other territory for the purposes specified in the act.</p> <p>3. - Taxation — Lands that May he Assessed. Lands included within such drainage districts which are not, never have been and can never be subject to overflow may neverthe- ■ less be lawfully assessed in proportion to benefits derived to pay for improvements authorized by the.act, if they are subject to injury and damage from the overflow of other lands.</p> <p>4. -Injunction — Collection of Assessment. The collection of such special assessments, levied after notice and an opportunity to be heard thereon have been given to the landowner, as provided in the act, should not be enjoined where the property so assessed may possibly be benefited by the proposed improvement and there is no claim that the board acted fraudulently or oppressively in determining the facts and making the assessment.</p>

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

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

<p>Petition — Amendment—Limitation of Action. An action begun in time was not barred because the petition was amended after the statutory period had run.</p>

<p>1. Elections — Incumbent Ineligible — Rights of Minority Candidate. It was said the fact that an incumbent of an office to which he had been elected was ineligible conferred no claim to the office on a minority candidate.</p> <p>2. Quo Warranto — Parties. Such minority candidate, having- . no title to the office, could not maintain an action in quo warranto to challenge the incumbent’s right to hold the office.</p>

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

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

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

<p>Practice, Supreme Court — Review of Matters Not Determinable. The rule applied that this court will not consider and decide questions when it appears that any judgment it might render would be unavailing.</p>

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

<p>1. Tax Deeds — Seal of County. A tax deed held not void because the seal affixed was not the official seal of the county.</p> <p>2. -Defective Recital — Deed Invalid. A tax deed recorded less than five years held invalid because it did not recite for whom the county treasurer bid off the land.</p>

<p>1. Tax Deeds — Excessive Consideration. Where the consideration for a tax deed recorded less than five years included the printer’s fee for printing the tax-sale notices, proof of publication not having been filed within the required time, the deed was void.</p> <p>2. -Defective Recitals — Invalid Deed. Such deed was also void because it failed to recite for whom or for how much the land was bid off.</p>

<p>Error from Norton district court; William H. 'Pratt, judge.</p>

<p>Master and Servant — Injury to Employee — Assumption of Risk: —Contributory Negligence. An employee in a quarry who-was injured by dynamite that had not exploded when the-charges were set off held not to have assumed the risk or been guilty of contributory negligence.</p>

<p>Case-made — Amendment. It was said that when the trial judge has certified a case-made to this court no amendment thereto can be allowed.</p>

<p>1. Practice, Supreme Court — Misconduct—Waiver. Objection to the opening statement of counsel having been first made in the motion for a new trial, it was said the complaint came too late.</p> <p>2. Practice, District Court — Motion to Suppress Depositions. A motion to suppress depositions, made after the jury were sworn to try the case, was denied, the court reserving its ruling on the evidence until it was offered on the trial. It was said this was not error.</p> <p>3. Foreclosure Proceedings — Parol Evidence — Estoppel — Venue. In a suit to foreclose a mortgage on separate tracts of land lying in different counties it was said that, under the circumstances: (1) Evidence was admissible to show that a deed was intended as security; (2) evidence concerning the conveyance was admissible against the mortgagor’s wife although she was not a party thereto, she having filed a joint answer with her husband and claimed the benefits of the transaction; (3) the suit might have been brought in either county in which the land was situated.</p>

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

<p>Occupation Tax — Failure to Pay — Defense to Action for Goods Sold. In an action for the price of goods sold to defendant it was said an answer setting up,that plaintiff had not paid an occupation tax required by an ordinance of the city in which plaintiff was doing business stated a good defense.</p>

<p>Fire-insurance — Spontaneous Combustion — Verdict and Evidence. In an action on a fire-insurance policy held that the evidence was sufficient to support a judgment for the plaintiff.</p>

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

<p>Railroads — Injury by Fire — Evidence. In an action for the negligent firing and burning of buildings adjacent to defendant’s railroad a judgment for plaintiff was affirmed.</p>

<p>Contracts — Illegality—Gift-enterprise. Where a petition did not show that a contract involved the element of chance a demurrer on the ground that the contract was prohibited by chapter 152 of the Laws of 1895 was properly overruled.</p>

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

<p>Criminal Law; — Requisites of a Plea in Abatement. The rule that it is essential that a plea in abatement shall be certain to every intent, and leave nothing to inference, applied.</p>

<p>Railroads — Injury at a Crossing — Contributory Negligence. Plaintiff’s contributory negligence barred a recovery by her for injuries received while attempting to cross defendant’s tracks in front'of a moving train.</p>

<p>Compromise and Settlement — Consideration — Estoppel. It was said that a compromise and settlement of a bona fide dispute, although the amount agreed to be paid may be much less than is actually due, is supported by a consideration, and if fairly made bars a recovery on the claim included in the settlement.</p>

<p>1. Surveys and Boundaries — Government Corners — Evidence.. It was said the rule that where known government corners are shown, or, in eases where they have disappeared, if their-location can be ascertained, the monuments must govern, and the field-notes of the government survey must be disregarded, is well settled.</p> <p>2. -Finding Held Conclusive. A finding upon conflicting-evidence that one of two boundary-lines was correct held conclusive on review.</p> <p>3. -Acquiescence — Evidence. It was said that a boundary-line long recognized and acquiesced in is generally better-evidence of where the real line should be than any survey made after the original monuments have disappeared.</p>

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

<p>Statute op Frauds — Possession—Improvements—Oral Agreement. Where one was in possession' of land ánd made lasting and valuable improvements on the strength of an oral agreement by the owners to convey, it was said the statute of frauds did not apply. *</p>

<p>Agency — Husband, and Wife — Statute of Frauds. Where defendant, a married woman, told plaintiff he might treat as signed by her any notes to which her name was signed by her husband, it was said to have been a declaration that defendant’s husband was authorized to execute notes in her name, and not a promise to answer for the debt of another.</p>

<p>Railroads — Injury by Fire — Pleading—Description of Defendant’s Engine. In an action to recover damages caused by a fire alleged to have been set out by one of defendant’s engines a motion to require plaintiff to make his bill of particulars more definite by setting forth the number of the engine that started the fire was properly denied.</p>

<p>Stipulation as to Facts — Estoppel—Case Tried on a Different Theory. It was said that a stipulation as to facts binds the parties, unless it appears from the manner in which the case was tried that the stipulation was ignored; and the stipulation should not necessarily bind the parties as to conclusions of law embraced therein.</p>

<p>1. Practice, Supreme Court — Second Proceeding in Error— Record of First Trial. Where a cause was remanded and, after a second trial, proceedings in error were instituted, it. was said the record, of the first trial had no place in the pro- . ceedings and could not be considered.</p> <p>2. Account — Liability of an Assignee — Evidence. In an action on an account for goods sold, where some of the supplies were sold direct to defendant and others were sold to a partnership that assigned to defendant, the evidence was sufficient to support a verdict for plaintiff.</p>

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

<p>Oil-and-gas Lease — Abandonment—Evidence. In a suit to cancel an oil-and-gas lease because there had been an abandonment and forfeiture the evidence was sufficient to support a judgment for plaintiffs.</p>

<p>Counter-claim — Verdict—Special Findings. Where defendant’s counter-claim exceeded plaintiff’s demand, and the verdict was for defendant but no balance was found due him, and there were no separate findings, but there was evidence to support the verdict, the judgment was affirmed.</p>

<p>Notice — Defective Bridge — Injury to a Traveler. In an action for injury caused by a defective bridge, where it did not appear that the chairman of the board of county commissioners had notice of the defect which caused the injury, it was said a demurrer to, plaintiff’s evidence was properly sustained.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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