Volume 8 — Kansas Court of Appeals Reports

<p>Error from Cowley district court; A. M. Jackson, judge.</p>

<p>1. Practice, District Court — Motion to Set Aside Sale. On a motion to set aside a sheriff’s sale a trial court may allow or refuse to allow evidence to be introduced.</p> <p>2. - Effect on Rights of Parties. A decision of the court on such motion is not conclusive as to the ultimate rights of either of the parties.</p>

<p>1. Railroads—Injury to Passenget—Obligation of Company. Where a train stops at a station for dinner, and a passenger goes from the coach to the eating-house, after luncheon returns to the coach in safety, and thereafter leaves the coach and goes out upon the platform maintained by the company for the use of passengers, and is injured by reason of the defective platform, held, that this court cannot declare as matter of law that the passenger was negligent, or that the obligation of the company to provide safe passage had been fulfilled, or that the relationship of passenger to the company had, for the time, ceased.</p> <p>2. -Evidence and Findings Considered. The evidence considered, and held, that the facts are not so undisputed or so definitely found by the jury as would justify the trial court in instructing the jury to return a verdict for defendant or to render judgment on the special findings.</p> <p>3. - Question of Negligence for Jury. Unless the facts are undisputed, or are definitely found by the jury, and only one conclusion can reasonably be drawn therefrom, negligence is a question for the jury; and where the Question is submitted under proper instructions as to the law, and the findings and verdict are sustained by competent evidence, the judgment will not be disturbed by this court.</p>

<p>1. Practice, District Court — Amendatory and Supplemental Pleadings. “The filing of amendatory and supplemental pleadings rests largely within the discretion of the trial court, and, unless there is a clear abuse of that discretion, its ruling will not be reversed.” (Rogers v. Hodgson, 16 Kan. 276, 26 Pac. 732.)</p> <p>2. -Notice — Abuse of Discretion. To permit a supplemental pleading to be filed without notice, to the prejudice of other parties to the action, would be such an abuse of discretion as would require a reversal, unless cured by the subsequent acts of the party aggrieved.</p> <p>3. - Jurisdiction — Waiver. The motion challenging the jurisdiction of the court and the answer thereafter filed set forth. Held, that, by filing the answer and going to trial, the plaintiff in error waived the jurisdictional questions attempted to be raised by his motion.</p>

<p>Error from Sedgwick district court; 0. Reed, judge.</p>

<p>1. Practice, District Court — Right to Dismiss One Cause of Action. Where two causes of action are indefinitely stated in a petition, and the petition is not attacked by motion separately to state and number the causes of action or to make more definite and certain, it is not error to permit the plaintiff during the trial to abandon one of the causes and proceed with the other.</p> <p>2. Promise for Benefit of Third Person — Case Cited and Followed. The case of Mfg. Co. v. Burrows, 40 Kan. 361, 19 Pac. 809, cited and followed.</p> <p>3. Record Examined — Wo Evidence. The record examined, and held, that there is no evidence to support the verdict.</p>

<p>Error from Sumner district court; J. A. Burnette, judge.</p>

<p>Error from Chase district court; Lucibn Earle, judge.'</p>

<p>1. Contracts or Corporations—Evidence. Certain contracts set forth, and held, that it was not error to admit them in evidence.</p> <p>2. -Authority of Officers—Burden of Proof. “ Where the president and secretary of a corporation execute a contract in behalf of the company, which is regular on its face and not shown to be outside of the regular business of the corporation, it is prima facie evidence that it was executed with authority, and those who deny the authority take upon themselves the burden of establishing their claim.” (Town Oo. v. Swigart, 43 Kan. 292, 23 Pac. 569.)</p>

<p>Error from Harvey district court; F. L. Martin, judge.</p>

<p>Practice, District Court—Limitation of Action—Insurance Policy. Where an, insurance policy provided that no action thereunder should be sustainable in any court unless begun within a term of one year after the date of the fire, and where, in an action brought under such policy by the general assignee of the assured parties, an interplea was filed more than two years after the loss by fire by a judgment creditor of the plaintiff’s assignor, the inter-pleader seeking the benefit of any recovery obtained by the plaintiff, and where before trial the plaintiff dismissed his action, and the trial proceeded between the defendant company and the inter-pleader, held, that the filing of the interplea marked the commencement of the interpleader’s action, and that its right of action was barred; and held further, that a general demurrer to the interplea raised this question.</p>

<p>Attachment Liens — Subsequent Attaching Creditors. Creditors of a defendant who have, subsequent to attachment, acquired liens on the attached property cannot be let in to defend the suit and dispute the grounds of the attachment in lieu of the defendant. They can only defend against such imperfections as are unamendable and render the proceedings void.</p>

<p>Limitation or Action — Breach of Covenant — Action Against Heirs. The right of action against heirs, to whom the ancestor’s estate has been distributed under administration proceedings, to compel a refunding to <pne claiming damages for breach of a covenant of warranty occurring after such distribution, is not barred until five years after such breach.</p>

<p>^rror from Marion district court; O. L. Moore, judge.</p>

<p>Error from Greenwood district court; G. W. Shinn, judge.</p>

<p>1. Judicial Sale — Confirmation not Ties Judicata. An order confirming a sheriff's sale is not conclusive on the question of homestead rights in the realty, where that question, although raised, was ignored.</p> <p>2. Practice, Courts oe Appeals — Assignment of Error. A party cannot assign as error the admission of evidence called out by his own questions.</p> <p>3. Homestead and Exemptions — Temporary Absence. A widow who, after her husband’s death, temporarily removed from her farm, and endeavored to support herself and children, but returned, her farming utensils having remained there meanwhile, did not thereby abandon her homestead.</p>

<p>1. Mortgage — Foreclosure—Pleading. A petition against the grantees of mortgaged premises to foreclose the mortgage, alleging a subsisting cause of action on a note against the mortgagor, the execution of the mortgage when the mortgagor was the owner in fee of the property, and that defendants claim an interest as remote grantees of the mortgagor, states a cause of action, notwithstanding it is not specifically alleged that defendants’ claim junior and inferior to plaintiff’s claim under the mortgage.</p> <p>2. -Limitation of Action. The case of Pears v. Wilson, 23 Kan. 343, followed.</p>

<p>Error from Wyandotte district court; Henby L. Alden, judge.</p>

<p>County Commissioners — Employment of Counsel to Defend Township. S. brought an action of ejectment against a township and the officers thereof for the recovery of a park. The use of the park was dedicated to the public; the fee was by dedication vested in the county. The board of county commissioners employed an attorney to defend the action brought by S. Held, that the contract of employment by the board of county commissioners and the performance of the services by the attorney created a legal liability against the county for the payment of a reasonable fee for the services performed.</p>

<p>Intoxicating Liquors—Interstate Commerce — Valid Act. Paragraph 2550 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 101, §32) is a valid police regulation. The act is not a regulation of commei'ce among the states simply because it may incidentally affect commerce.</p>

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

<p>Error from Wyandotte court of common pleas; T. P. Anderson, judge.</p>

<p>Error from Doniphan district court; R. M. Emeky, judge.</p>

<p>Appeal from Leavenworth district court; Louis A. Myers, judge.</p>

<p>1. Promissory Note — Indorsement by Third Party. Where a negotiable promissory note is indorsed by the payee and by K., a third person, by writing their names on the back of the note only, and the note is sold by the payee to another person before maturity, both indorsers will be held to be ordinary indorsers.</p> <p>2. -- Demand, Protest and Notice Necessary. To fix the liability of K. as an indorser thereon, it is necessary to allege and prove demand, protest, and notice, or a waiver thereof by the indorsers.</p>

<p>Error from Atchison district court; W. D. Webb, judge.</p>

<p>Mechanic’s Lien — Leasehold Estate. A mechanic’s lien affects whatever estate or interest in the iand, upon which the building is erected, is owned and possessed by the person -who causes the erection of the building at the time when the contract is made for the material. If the person contracting has any estate or interest in the land, the lien of the material-man extends to the whole of that estate. The word “owner” is not limited in its meaning to an “owner in fee,” but includes also an owner of a leasehold or other estate.</p>

<p>Error from Johnson district court; John T. Burris, judge.</p>

<p>Error from Douglas district court; A. W. Benson, judge.</p>

<p>Error from Atchison district court; W. D. Webb, judge.</p>

<p>1. Summons — Return-day • — Clerical Error. Summons was issued November 9,1887. It designated the answer-day to be December 9,1887. It directed the sheriff to return it December 19, 1887, instead of November 19, 1887. Held, that the summons was not void, but that the error, which was apparent by the record, could be corrected at any time.</p> <p>2. - Error in Defendant’s Name — Amendment after Expiration of Sheriff’s Term. The summons directed the sheriff to summon James M. Hendry. The return showed that he had duly served “James M. Dendry, the within-named defendant.” Held, that the return could be amended 'after the expiration of the sheriff’s term of office to show that he had in fact served the defendant James M. Hendry.</p> <p>3. Revivob— Return, of Execution■ — Evidence. Judgment was entered December 13, 1887. Executions were issued thereon June 5,1889, August 5,1889, and September 9,1892. The defendant Hendry died February 5, 1895. The execution of September 9, 1892, was not returned to the clerk’s office until November 26, 1892. Held, that on the motion to revive against the administratrix the execution of September 9, 1892, was competent evidence; and that the evidence was sufficient to sustain the order of revivor, no reason to the contrary being shown by the administratrix.</p>

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

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

<p>Error from Wyandotte district court; Henry L. Alden, judge.</p>

<p>Executions—Shawnee Circuit Court. The clerk of the district court of Shawnee county has lawful authority to issue executions on a judgment rendered by the circuit court of that county, transcribed and certified to the district court prior to the 12th day of April, 1895; and the judgment creditor possesses a right accrued for the enforcement of his judgment by execution from the district court.</p>

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

Error from Johnson district court; John T. Burris> judge. STATEMENT. John Bayha, Daniel C. List, Warren B. Sexton, and M. P. Sexton, as copartners under the firm name of Merriam Park Lodge Company, sued, the Shawnee Fire Insurance Company o.n a policy issued to them on their sanitarium building at Merriam park, making the Missouri Sayings Association a codefendant- with the insurance company.

<p>Error from Atchison district court; W. D. Webb, judge.</p>

<p>Error from Atchison district court; W. D. Webb, judge.</p>

Error from Morris district court; James Humphrey, judge. statement. This petition in error ’was originally filed by the plaintiff in error against Nancy Amsbaugh, as defendant in error, who has since died, and the case was revived by consent of the parties in the name of S. L. Sargent, administrator of her estate.' Nancy Amsbaugh sued the plaintiff in error on a fire-insurance' policy in the sum of $500.

<p>Replevin — Practice — Submission to Jury. In an action of replevin by a married woman, where, from all the testimony offered, there is some evidence tending to support the contention of the defendants, who are execution creditors of the husband, that the property, or some part thereof, is that of the husband,'it is error to instruct the jury to return a verdict for the plaintiff. The jury are the judges of all questions of fact in such case, and it is for them to say what is proved. The case should be submitted to the jury with proper instructions.</p>

<p>1. Practice—Poverty Affidavit—Notary Public. A poverty affidavit in the form prescribed by statute, sworn to before a notary public, filed with the petition in the office of the clerk of the district court, is a substantial compliance with the statute.</p> <p>2. Personal Injuries—Loss of Time—Instructions. In.an action for personal injuries, where the petition alleges that the plaintiff became sick and unable to perform her duties from the time of the accident for a long period of time, such allegation is sufficiently broad to justify the court in instructing the jury that, “ in addition to her right to recover for physical and mental suffering consequent upon the injuries sustained, she may recover as well for the loss of time resulting from the injuries.”</p>

<p>Error from Brown district court; R. M. Emery, judge.</p>

Error from Morris district court; James Humphrey, judge. statement. This was an action by Matkins against Piper on an account. The defense was, first, a general denial, and second, a set-off comprising one item of account. At the conclusion of the evidence, the court gave, among others, these instructions : “16.

<p>Landlord and Tenant—Measure of Damages—Erroneous Instructions. By the terms of a lease, B. agreed to put a fence on the premises in good condition, to provide two water-tanks, connect the same with the spring, and construct a pond for watering . purposes; and if the water from the spring and pond should be insufficient for 200 head of cattle, that he would put in a well and windmill. At the trial it was insisted that B. failed to construct the pond in a seasonable time, that the spring practically failed, and that the well was not dug to a proper depth nor at the proper time to furnish water; that by reason thereof there was an insufficient supply of water in the pasture, in consequence of which the cattle owned by the tenants were injured, and removed from the pasture long before the expiration of the lease. The court erroneously instructed the jury as to the measure of damages, by which instruction defendants were permitted to recover damages to which they were not entitled. Held, that such error was not prejudicial, for the reason that there was no evidence offered at the trial tending to show the measure of damages recoverable in such case.</p>

<p>1. Forcible Entry and Detainer— Ownership and Possession —Description of Premises. In an action of forcible entry and detainer, a complaint is fatally defective which alleges that the complainant is the owner and in. possession of the premises, and in which the only description of the property is “a portion of said premises, being about thirty acres of and in the southwestern portion of said quarter-section.”</p> <p>2. -Defective Complaint — Amendment. In such action it is reversible error for the trial court to refuse to permit the plaintiff, upon proper and timely motion, to amend his complaint on such terms as the court may deem proper.</p>

<p>1. Practice — Refusal to Submit Special Questions. The refusal of the court to submit to the jury questions of fact whose answers could in no wise affect the general verdict, the rights of the parties or the result of the suit, is not error.</p> <p>2. Cities — Personal Injuries — Defective Sidewalk. Holes .in a board sidewalk occasioned by pieces broken or decayed and removed therefrom, although but a few inches in depth, may be, in legal contemplation, such defects as to render the city liable for injuries resulting therefrom.</p>

<p>Error from Atchison district court; W. D. Webb, judge.</p>

<p>Error from Atchison district court; W. D. Webb, judge.</p>

<p>Creditor's Bill — Insufficient Petition. In an action by a judgment creditor in the nature of a creditor’s bill, under the provisions of section 501 of the code (Gen. Stat. 1897, ch. 95, § 501, Gen. Stat. 1889, ¶ 4579), it is necessary that the petition contain an allegation that the judgment debtor has not personal or real property subject to levy on execution, or an allegation equivalent thereto.</p>

<p>1. Private Road — Award of Damages — Liability of County. Under the provisions of chapter 112, Laws of 1874, the county is not liable for the award of damages found by the viewers, or by the district court on appeal,vfor the location of a private road.</p> <p>2. Practice, Courts oe Appeals— Res Judicata — Presumption of Regularity. Where a judgment of the district court is relied on as res judicata, and a copy of said judgment is not embodied in the record, this court will assume that said judgment was such arr one as the facts in the case under the law required.</p>

<p>Error from Wyandotte district court; Henry L. Alden, judge.</p>

<p>Damages—Misrepresentation—Notice of Defeat—Instructions. In an action to recover damages for the sale of a vicious mare alleged to have been sold as a gentle, reliable and safe family animal, it is reversible error for the court to refuse to instruct the jury, in substance, that if they find that before the sale was consummated the plaintiff told the defendant that the animal had previously run away and was not entirely trustworthy, or words to that effect, their verdict must be for the defendant, the evidence in the case being sufficient to warrant the instruction asked.</p>

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

<p>Error from Brown district court; R. M. Emery, judge.</p>

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

<p>1. Intoxicating Liquors — Complaint—Verification. The complaint in this case was sworn to positively and gave the court jurisdiction, and it was not error to refuse to hear evidence to impeach such complaint by showing that the prosecuting witness had no knowledge of the facts, except such as were based on rumor, hearsay information, and belief.</p> <p>2. - City Ordinance. The ordinance under which this prosecution was maintained examined, and held valid.</p> <p>3. -Evidence — Permit to Sell Liquor. The testimony of the probate judge, that he had examined the records of his office and that no permit had been issued to the defendant, was competent to make prima facie proof that the defendant had none.</p> <p>4. —- Omission of Defendant to Testify — Duty of Court. It is not the duty of the trial court to call the attention of the jury to the fact that the defendant had not testified in his own behalf, by instructing them as to the presumptions arising from such neglect or omission to testify.</p>

<p>1. Crimina!; Procedure — Issuance of Warrant by Clerk. The statute authorizing clerks of the district court to issue warrants on informations filed charging defendants with a misdemeanor does not confer on such clerk judicial powers, and is constitutional and valid law. {The State v. Brooks, 33 Kan. 708, 7 Pac. 591.)</p> <p>2. - Witness — Indorsement on Information. Permitting the state to use the testimony of a witness whose name is not indorsed on the information, the facts being such that the court could have rightfully permitted the name to be indorsed, is not error requiring the reversal of a j udgment of conviction. (The Slate v. Medlieott, 9 Kan. 257.)</p>

<p>Error from Wyandotte district court; Henry L. Alden, judge.</p>

<p>Error from Wyandotte court of common pleas ; T. P. Anderson, judge.</p>

<p>1. Intoxicating Liquors — Valid City Ordinance. Section 1 of ordinance No. 1909 of the city of Topeka is constitutional and valid.^</p> <p>2. - Powers of City — Common Nuisance. A city of the first class is acting within the constitution and laws in declaring by ordinance that a place where intoxicating liquors are sold, bartered or given away, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter, or delivery, is a common nuisance.</p> <p>3. - Complaint — Sufficient Description of Liquor. In the absence of a motion by the defendant that the city be required to make its complaint more definite and certain, a complaint which states that the defendant “did then and there unlawfully and wrongfully keep and maintain a place where whisky, lager beer and other intoxicating liquors were kept for sale,” is sufficiently definite and certain in describing the kind of liquor.</p> <p>4. -Proceedings on Appeal — Original Complaint and Warrant. In a case instituted originally in a police court and appealed to the district court, it is not necessary that any formal certificate be attached to the complaint showing it to be the original, if it is apparent from an examination of the record that it is the original complaint.</p> <p>5. -Instructions Examined. The alleged erroneous instructions examined, and held, that the trial court committed no reversible error in instructing the jury.</p>

<p>1. Practice, Courts oe Appeals — Transcript—Certificate of Clerk. Where the clerk of the district court certifies that “the foregoing is a full, true and complete transcript of the record,” this courtis not authorized to presume that something else should have been included therein.</p> <p>2. Criminal Law — Appeal from Police Court- — Original Complaint. Where it appears from the record that the complaint filed in the district court is the identical complaint on which the appellant was tried in the police court, a motion to quash said complaint, for the reason that it has not on it, or attached to it, a formal certificate of the police judge to such fact, was properly overruled.</p> <p>3. Intoxicating Liquors — Sufficient Complaint — Correct Description of Place. When the place where the offense was committed is correctly described in the complaint, it is not error to refuse to quash the complaint for the reason that the place could have been properly designated by another description.</p> <p>4. -Valid City Ordinance. The ordinance under which the conviction was had in this case is held constitutional.</p>

<p>1. Cities—Injunction — Unnecessary Party. In an action to enjoin the collection of an illegal assessment for the improvement of a street, the city clerk is not a necessary party; and if made a party in the trial court, his absence from the proceeding in error is no ground for dismissal.</p> <p>2. - Contract for Paving — Void Conditions—Illegal Assessment. A provision in a contract for paving a street requiring the contractor to keep the pavement in repair for a term of five years after its completion, and requiring him to give a bond to secure the performance thereof, renders the assessment against the abutting lotowners to pay for the cost of such improvement and repair illegal and void.</p> <p>3. -Repair of Pavements—Power of Council. A city council cannot make provision for repairs in advance of a necessity therefor, but must wait until such necessity arises.</p> <p>4. - Contracts for Improvements-—Duty of Council. It is the duty of the council of a city to see that all contracts made by them for the-city are properly and honestly performed, and they cannot lawfully shift this official duty to the contractor, and thereby impose an additional burden of taxation upon the property holders.</p>

<p>• Covenant oe Warranty — Action for Breach — Measure of Damages. In an action to recover damages for a breach, of a covenant of warranty, where the warrantee has been adjudged to be evicted and then purchased the paramount outstanding title, the plaintiff has made a case entitling him to judgment when he has shown said judgment of eviction and purchase, the amount of the original purchase-price, and the sum paid for the paramount title, unless the defendant shows matters in defense sufficient to offset the plaintiff’s claim.</p>

<p>^Replevin — Limitation of Action. Where personal property is sold to an innocent purchaser by one who has no rightful ownership or possession thereof, and said purchaser takes and retains open, notorious and exclusive possession thereof for more than two years before the owner learns of its whereabouts, held, that the owner is not barred by the statute of limitations from recovering said property.</p>

<p>Chattel Mortgage — Subsequent Purchaser — Notice and Knowledge. A subsequent purchaser in good faith of mortgaged chattels must acquire the property for a valuable consideration, without actual knowledge of the existence of the mortgage. Actual notice as applied to conveyances does not necessarily mean actual knowledge; it may be implied, if the party has knowledge of such facts as would lead a fair and prudent man using ordinary caution to make further inquiry; and if he evade inquiry, he is chargeable with notice of the facts which by ordinary diligence he would have ascertained.</p>

<p>1. Account Stated — Limitation of Action — Variance in Proof. The petition alleged a payment on an account stated, so as to take it out of the bar of the statute of limitations, and the evidence, which was not objected to, showed the indorsement of plaintiff’s note by defendant, and the»payment thereof by him to the bank. Held, not to be such a variance as to entitle the defendant to a new trial thereon.</p> <p>2. - Payment of Creditor’s Note. Where the plaintiff, for the purpose of raising money at the bank, executed his note to the defendant, which was indorsed by the defendant and by the plaintiff discounted at the bank, and said note was, after it became due, paid to the bank by the defendant'under an agreement that he would do so, and that the amount should be credited on his account to plaintiff, held, that said sum was a proper credit on said account, of the date it was so paid to to the bank.</p>

<p>Error from Leavenworth district court.; Louis A. Myers, judge.</p>

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

<p>1. Practice—Service of Case—Meaning of “Until.” - The trial court extended the time to make and serve a case-made “until” the 20th day of February, 1895. Held, that the last day named in the order is to be included as part of the time allowed, and service of the case on the 20th was made in time.</p> <p>2. Negligence—Assumption of Risk—Question for Jury. The claim of negligence on the part of the plaintiff was that the defendant, by causing a switch to be thrown, changed the direction of the car which plaintiff was ordered to assist in pushing along the track to another track, so that it ran so close to the defendant’s platform as to put him in imminent peril, with the result that he was crushed and injured, without notice to him that the peril would be the inevitable consequence thereof. He testified that he had on one occasion, and possibly two, assisted in pushing a car along the track fartherest from the platform; and it appeared from undisputed evidence that he was passing along the. track past the switch with other employees about the time the switch was thrown. Held, that, as matter of law, notice of the danger could not be imputed to him therefrom, nor that he assumed the hazard of such peril, but that it was properly submitted to the jury on all the evidence, to say whether by the exercise of reasonable diligence he would have known of the peril, and so knowing it, assumed the risk.</p> <p>3. -Fellow-Servant — Vice-principal. The evidence is that the defendant’s foreman, who was directing the moving of the car, had authority to employ the men on the defendant’s work; that he had absolute control of all of them, not only in that, but in all of the work about which they were employed, without any immediate directions or supervision of any officer of the defendant corporation; that he had full authority to and did direct them from one kind of employment to another in the defendant’s service. Held, that the foreman -was not a fellow-servant of the plaintiff, but stood in the relation of principal to him, and that this relation was not changed by the fact that, at the immediate time the plaintiff was caught between the car and platform and injured, the foreman was walking on the platform above the men, with one hand on the car assisting to push it.</p>

Error from Jackson district court; Louis A. Myers, judge. STATEMENT. Taylor Bros. & Co. began this action in the nature of a creditor’s bill to marshal the assets of the co-partnership, of Riggs Brothers. They claim a specific lien on the property mortgaged, under a mortgage given them by Riggs Brothers, which was made expressly subject to the mortgages of M. C. Stewart, the First National Bank of Holton, C. J. Hamble, and J. B. Riggs.

<p>Error from Brown district court; R. M. Emery, judge.</p>

<p>1. Landlord and Tenant — Tenancy from Year to Year. Where a tenant goes into possession of real estate under a written lease for one year with the privilege of two years, executed by the landlord and accepted and complied with by the tenant, and remains in possession thereof four years, without any new agreement except as to the amount of rent payable, held, that this constitutes a tenancy from year to year.</p> <p>2. -Monthly Instalments. The nature of such tenancy is not changed by the fact that the annual rental was payable in equal monthly instalments.</p>

<p>Burden or Prooe — Opening and Closing of Argument. Where the burden of proof is imposed on the defendant in all the material issues in a case, it is reversible error not to permit him to open and close the argument to the jury.</p>

<p>School Districts — Taxation—Requirements of District. A court cannot decide from the expenditures of the past alone that a tax voted by the electors of a school district is arbitrary, oppressive, and illegal, or that it will produce a sum which, added to the amount then on hand, will be in excess of the reasonable requirements of the district.</p>

<p>Criminal Law — Venue — Judicial Noti.ee. Courts will take judicial notice that the city of Topeka, Kansas, is in Shawnee county, and proof that an offense was committed in the city of Topeka, Kansas, is proof that it was committed in Shawnee county.</p>

<p>Error from Geary district court; O. L. Moore, judge.</p> <p>STATEMENT.</p> <p>On January 24, 1876, Charles Neuber, the husband of the defendant in error, executed his will, by which he devised the land in controversy to the plaintiff in error, reserving to his wife during her lifetime the use and occupation of the dwelling-house on said land and one-sixth of the crop raised thereon. Indorsed on the will was the written consent of his wife, and her signature to said consent was attested by one witness only. Charles Neuber died in July, 1894, owning at the time 160 acres of land in Riley county and 40 acres in Geary county, besides that described in the will, and also $500 worth of personal property. The will was probated in Riley county on September 1, 1894, and on the same day the widow was cited to and did appear before the probate court and made her election to take under the law and not under the will, and the probate judge made an order that the widow be vested with her full rights as the widow of the said Charles Neuber, as if no will had been made.</p> <p>Afterward the widow, Mary, Neuber, instituted in the district court of Geary county, in which said land lies, an action of ejectment against F. C. Neuber and L. H. Neuber, in which the court made certain findings of fact and conclusions of law; in substance, that the plaintiff in error and the defendant in error are tenants in common of the lands in controversy herein, each owning the undivided one-half thereof. Afterward this action was instituted for the partition of said land between the parties according to their interests therein as found in said ejectment proceedings. A trial was had and judgment of partition rendered, which judgment is sought to be reversed in these proceedings.</p>

<p>Error from Republic district court; F. W. Sturges, judge.</p>

<p>Revivor — Dormant Judgment. Where a judgment creditor files a motion to revive a dormant judgment and serves notice as required by law, fixing a time for the hearing, but fails to secure an order of revivor until more than one year has elapsed since the judgment became dormant, it is not error to refuse said motion.</p>

<p>Error from Mitchell district court; Cyrus Heren, judge.</p>

<p>Error from Geary district court; O. L. Moore, judge.</p>

<p>Error from Washington district court; F. W. Sturges, judge.</p>

<p>1. Shebiee— Attendance on Probate Court—Construction of Statute. Section 7, chapter 88, General Statutes of 1897 (Gen. Stat. 1889, ¶ 1766), does not require the sheriff to be continually present in the probate court whenever the,same is in session, but only to attend at such times as his presence may be required or when it may be necessary for him to perform some service.</p> <p>2. - Fees. The sheriff is not entitled to pay for every day the probate court is in session, regardless of whether his presence is required by the probate judge or whether there is any service for him to perform.</p>

<p>Limitation or Action— Contract in Writing. An action for the recovery of damages for a failure to comply with the terms of a written agreement to erect a house, and furnish all labor and material therefor, is an action on an agreement, contract, or promise in writing, and is not barred by the three-year statute of limitations.</p>

<p>1. Common Carrier — Connecting Lines — Construction of Contract. A railroad receiving freight destined to a point beyond its line is only bound, in the absence of a special contract, to carry it safely over its own route aDd deliver it to the next connecting carrier, but it may agree that it will assume the responsibility of its transportation the entire distance, in which case its liability will be correspondingly extended. Such will not be inferred from doubtful expressions or loose language, but only from clear and satisfactory evidence.</p> <p>2. -Bill of Lading and Stipulation Examined. The bill of lading and stipulation in this case examined, and held not to extend the liability of the defendant in error beyond the delivery of the freight to the connecting line.</p>

<p>Error from Saline district court; R-. F. Thompson, judge.</p>

<p>Error from Geary district court; O. L. Moore, judge.</p>

<p>1. Intoxicating Liquors — Information—Verification by County , Attorney. Where an information charging the unlawful sale of intoxicating liquors is positively verified under the forms of law by the public prosecutor, and the defendant is arrested on a warrant issued thereon and enters into a recognizance for his appearance at a subsequent term of court, held, that a motion to quash the warrant and information on the grounds “that the information is not properly verified, and that the county attorney has no personal knowledge of the facts alleged therein” is properly overruled, without hearing evidence tending to show that the only knowledge possessed by the county attorney was based on information and belief.</p> <p>2. - Evidence— Sales by Another Person. Upon the trial of C. for the unlawful selling of intoxicating liquors, it is error for the trial court to refuse to strike out testimony that one K. had sold to the witness intoxicating liquors, where there is no showing' as to what relation, if any, existed between O. and K., or that O. was in any way responsible for the unlawful acts of K.</p> <p>3. -Election of Offenses — Certainty Required. Where the county attorney is required to elect on what particular sale of intoxicating liquors he will rely for a conviction, testimony of more than one unlawful sale having been given under a single count, it is necessary for the prosecutor to designate in some proper way with reasonable certainty that particular transaction on which he relies for conviction.</p>

<p>Error from Russell district court; W. G. Eastland, judge.</p>

<p>1. Pleading— Petition Examined. The petition in this case examined, and held to state a valid cause of action against all the defendants.</p> <p>2. Practice, District Court—Law andEquity. In this state the distinction between actions at law and suits in equity is by statute expressly abolished, and it is error for a court to compel a plaintiff to .elect whether he will proceed in equity or at law.</p>

<p>Error from Trego district court; Lee Monroe, judge.</p>

<p>Error from Ellis district court; Lee Monroe, judge.</p>

<p>1. Landlord and Tenant — Forfeiture of Lease for Non-payment of Rent. A provision of forfeiture in a contract of lease, upon non-payment of rent, cannot be enforced without demand of payment being duly made.</p> <p>2. - Privilege of Extension — Notice of Election to Extend. If a lease provides for an extension, the lessee need not give notice of his election to avail himself thereof unless the contract provides for such notice.</p> <p>3. -Election by Lessee — Notice to Lessor — Estoppel. If such election is made by the lessee before the termination of the specific term, at the request of the lessor, and the lessor, with the knowledge of the lessee, acts thereon respecting the premises, the election is binding on the lessee.</p>

<p>1. Parties to Actions—Assignor not Necessary Party. In an action founded upon an equitable assignment of a claim for money due on a policy of insurance, the assignor is not a necessary party.</p> <p>2. Practice, Courts or Appeals—Evidence in Case-made. A motion to dismiss a case brought to this court by petition in error, for the reason that the case-made does not contain all the evidence, should be overruled. It is not essential to the validity of a case-made that it contain all of the evidence, nor any part of the evidence.</p> <p>3. --Error— Grounds of Objection to Testimony. An assignment of error cannot be predicated on the admission of incompetent testimony without objection, nor on a general objection, unless the grounds of the objection are apparent.</p> <p>i. Pleading — Allegation Admitted by Pleadings. An allegation in a petition of the execution of a written order, which is set out, is admitted by the pleadings, unless the allegation be denied by a verified answer.</p>

<p>Error from- Russell district court; Lee Monroe, judge.</p>

<p>Error from Logan district court; Lee Monroe, judge.</p>

<p>Error from Decatur district court; A. C. T. Geiger, judge.</p>

<p>1. Pleading — Execution of Note — Agreement Concerning Pro~ ceeds — Breach not a Defense. A. advanced to B. $100 to be loaned to O. on a note signed by A. and O. and payable to B., and it was agreed between A. and B. that B. should hold said money in trust for the sole use of B. ’s two minor children, and that before B. should ask to handle the same she should become the legally appointed and qualified guardian of said minors, which she neglected and refused to do, and sought to recover said sum for her sole use and benefit. Held, that this does not constitute a defense to an action brought by B. against A. and O. on said note.</p> <p>2. - Counter-claim Examined. The counter-claim in this case examined, and held, that the demurrer thereto was erroneously sustained.</p>

<p>Error from Decatur district court; A. C. T. Geiger, judge.</p>

<p>Cities — Injuries from Defective Sidewalk. To make a city liable for injuries resulting from a defective sidewalk, it must appear that the city had notice of the defect, or that it was a patent defect and had continued so long that notice might reasonably be inferred, or that the defect was one which, with reasonable and proper care, should have been ascertained and remedied. (Jansen v. Gity of Atchison, 16 Kan. 358..</p>

<p>Error from Crawford district court: J. S. West, judge.</p>

<p>Error from Crawford district court; J. S. West,. judge.</p>

<p>Practice, Courts or Appeals — Special Findings Inconsistent and Unsupported by Evidence. Special findings of fact by a jury, unsupported by the evidence, and inconsistent findings, • where all such findings relate to matters material to the issues in the case, require a reversal of a judgment of the trial court approving the general verdict of the jury. (A. T. & S. F. Bid. Co. v. Brown, Adm’r, 33 Kan. 757, 7 Pac. 571.)</p>

<p>Banks and Banking — Payment of Dividends — Secured and Unsecured Creditors. The rule declared in National Bank v. Branch, 57 Kan. 27, 45 Pac. 88, governing proof of claims by, and dividends to, creditors of an assigned corporate estate, where such creditors held notes negotiated and guaranteed by the corporation and secured by mortgages on real estate, that dividends should be paid on the amount remaining unpaid on such claims after such creditors have exhausted their special liens, is held controlling in respect to the distribution of the estate of an insolvent banking corporation in the hands of a receiver appointed under the provisions of the state banking law.</p>

<p>Error from Allen district court; L. Stillwell, judge.</p>

<p>Error from Crawford district court; J. S. West, judge.</p>

<p>Error from Allen district court; L. Stillwell, judge.</p>

<p>Error from Linn district court; J. S. West, judge.-</p>

<p>1. Breach oe Covenant against Ineumbranees — Measure of Damages. The rule for estimating damages arising from a breach of a covenant against incumbrances in a deed conveying real estate, by reason of the existence of a tenancy of the premises, as announced by the supreme court in Clark v. Fisher, 54 Kan. 403, 38 Pac. 493, in reviewing the record of the first trial of this case, is held to have been followed by the district court in the second trial herein.</p> <p>2. -Husband and Wife — Joint Liability. Where husband and wife execute a joint deed containing a covenant against incumbrances, both are liable for a breach of the covenant. (Bolinger v. Brake, 4 Kan. App. 180, 45 Pac. 950.)</p>

<p>Limitation or Action — Implied Contract for Services — Accrual of Cause of Action. A cause of action accrues on an implied promise to pay the reasonable value of services rendered, without agreement as to time of payment or the length of time such service shall continue, when the service ends.</p>

<p>Error from Labette district court; A. H. Skidmore, judge.</p>

<p>Practice, District Court — Verdict and Special Findings — Authority of Court. Where a verdict and special findings are returned into court, and the trial judge states to the jury “that they should make their general verdict and their answers to special questions harmonize,” and causes them to retire again to the jury-room for that purpose, held, to be error for which a new trial should be granted.</p>

<p>1. Practice, Courts oe Appeals — Waiver of Errors. Errors occurring on the trial are waived by failure to assign for error the overruling of the motion for a new trial. (National Bank v. Jaffray, 41 Kan. 691, 19 Pac. 626.)</p> <p>2. Promissory Note — Performance of Conditions — Waiver of Right to Renew. The judgment is supported by the pleadings, and it is held, that if the right existed to renew the note sued on, so that the principal thereof should not become due and payable during the lifetime of the plaintiff in error, who gave the original note in renewal of which the present note was executed, such right of renewal was waived by the failure of the plaintiff in error to perform the conditions of the original agreement under which the indebtedness was contracted.</p>

<p>Error from Bourbon district court; J. S. West, judge.</p>

<p>Fees ahd Salaries — Action for Repayment of Fees — Mistake, of Law. In an action by a county officer to recover fees paid over by him to the county commissioners under the provisions of a law requiring such payment (and which law had been declared unconstitutional by the supreme court), the petition alleged that the fees were so paid over under a mistake of fact, but it also alleged that such payments were made to avoid forfeiture of office and the penalties provided for in the said law and to prevent litigation, “ all of which were threatened by said act for non-com- . pliance therewith.” Ifelcl, that the latter allegation so far modified the former that the petition as a whole alleged payment under a mistake of law and was demurrable.</p>

<p>Criminal Law — Misdemeanor — Plea in Abatement. Plea in abatement to an information charging misdemeanors, which alleged pendency of another action in a court of concurrent jurisdiction for the same offenses, held insufficient, for the reason that it did not show pendency of first action at the time the plea was filed. (The State v. Curtis, 29 Kan. 384.)</p>

<p>Breach oe Contract — Measure of Recovery —Terms of Agreement. In an action to recover one year’s rental, under a coal-mining lease which contained an agreement by the lessees to operate the mine continuously and to pay as royalty a fixed price per bushel for all “lump” and “mine-run” coal taken from the mine, and that the annual output of the mine should be 500 cars of 500 bushels each of royalty coal, the defendants, who had mined only a small part of the amount so undertaken to be mined, offered no evidence in mitigation of damages laid by the plaintiff as the total royalty which would have been due on the minimum amount agreed to be mined. Held, that the lease furnished the agreed minimum measure of plaintiff’s right of recovery for one year’s use and control of the mine by the defendant.</p>

<p>1. Board or Equalization — County Commissioners — Minutes of Proceedings. Where from the record of a board of county commissioners it appears that such board was in regular session on the 5th, 6th, 7th, 8th and 9th of June, 1893, and that on the latter day it adjourned to the 19th of the same month; and where such record further shows that such county commissioners met on the first-named date as a board of equalization, and that certain acts which would properly have been done by'the last-named board were done on each of the first four of said days; and where such record does not show that the board of equalization, as such adjourned on June 5, or that it was reconvened on any subsel quent day; held,, that it must be presumed that the board of county commissioners, in addition to their usual functions, attended to such equalization work as came before them, and that the board of equalization was not in session on any of the said days, except possibly on June 5.</p> <p>2. - Evidenceof Proceedings — Entry on Journal. Where, under the foregoing facts, the defendant, offered to prove that the minutes of the board of equalization were kept on slips of paper which had been lost, and .where such offer was rejected for the reason that the minutes of the board of county commissioners contained the entry under the authority of which the increased assessment of the plaintiff’s property was made, held, not error.</p>

<p>Agency — Unauthorized Contract of Agent — Presumption of Knowledge by Principal. Knowledge by the .principal of the terms and conditions of an unauthorized contract entered into by an agent is not to be presumed from the fact that the principal had a reasonable opportunity to acquire such knowledge. (National Bank v. Drake, 29 Kan. 325; St. John v. Cornwell, 52 id. 717, 35 Pac. 785.)</p>

<p>Error from Linn district court; J. S. West, judge.</p>

<p>1. Evidence Examined. The evidence complained of examined, and held, that the refusal of the trial court to strike it out was not error.</p> <p>2. Stockholder’s Liability— Defense—Payment in Real Estate. In an action to recover on the statutory, liability of a stockholder of an insolvent bank, the stockholder may set up as a defense the payment of corporate debts to the full extent of his liability, and allege and prove that such payment was made in real estate.</p> <p>3. -Good Faith in Payment — Equal Values Exchanged. Where the corporate debt is paid by the stockholder in real estate, it should be equal in value to the debt paid, the transaction should be free from fraud, the debt paid in good faith, and the property accepted by the creditor in full payment.</p> <p>.4. - Set-off — Debt Due to Stockholder — Case Followed. “A stockholder in a corporation who has paid the full face value of his stock,- when proceeded against by a'creditor of the corporation to enforce the statutory liability for the debts of the corporation, may show by way of set-off that the corporation is indebted to him upon bona fide claims and demands which accrued before he became liable as such stockholder.” (Pierce v. Security Co., 60 Kan. 164, 55 Pac. 853.)</p>

<p>Error from Miami district court; J. T. Burris, judge.</p>

<p>Appeal from Allen district court; L. Stillwell, judge.</p>

<p>1. Pleading and Proof — Replevin—Ownership. When the plaintiff in a replevin action claims the personal property in controversy as sole owner, he must stand or fall on that claim, and cannot recover by showing his right to a lien.</p> <p>2. Conditional Sale — Purchase-price Unpaid — Lien of Vendor. When goods are sold and delivered to the purchaser under the terms of a contract which provides that the title of the goods, or the proceeds of sale, shall remain in the vendor until the purchase-price is fully paid, the vendor, as between the original parties, has a lien on the goods for the unpaid portion of the purchase-price, which lien would be removed by payment.</p>

<p>Error from Cowley district court; A. M. Jackson, judge.</p>

<p>1. Practice, District Court — Instructions—Law of the Case. Where an instruction to the jury was in conformity with the plaintiff’s theory of the cause of his personal injury by the alleged negligence of the defendant railroad.company, as such theory was indicated by the petition, by the plaintiff’s statement of his case to the jury, and by the testimony offered in support of his cause of action, and the instruction so given was not objected or excepted to by the plaintiff, the same became the law of the case, binding on the plaintiff in the trial court and in this court.</p> <p>2. -• Special Findings — Jury Disregarding Instructions. Where, under the circumstances stated in the foregoing paragraph, the special findings of fact show that the jury rejected plaintiff’s trial theory and disregarded said instruction, the trial court ought to have set aside the verdict in favor of the plaintiff.</p>

<p>1. Evidence — Inspection of Memoranda. Any writing used by a witness to refresh his memory must be produced and shown to the adverse party, if he requires it, who may cross-examine the witness thereon.</p> <p>2. Railroads — Fire Damage — Special Findings. Where the jury find that the railroad company is negligent only in allowing the accumulation of combustible material on its right of way, the company is not prejudiced by the refusal of the court to compel the jury to answer special questions relating to other items of negligence.</p> <p>3. - Statutory Provisions — Inapplicable Decisions. Distinctions are to be made between the decisions of the supreme court on questions of negligence arising prior to the passage of the law of 1885 (Laws 1885, ch. 155; Gen. Stat. 1889, ¶1321; Gen. Stat. 1897, ch. 70, §32) on that subject, and acts of negligence arising subsequent to its passage.</p> <p>4. —-Measure of Damages — Testimony. The plaintiff’s recovery for damages to real estate by fire caused in the operation of a railroad is limited to the actual diminution in the value of the realty; but while this may be shown either on cross-examination of the plaintiff’s witness or as a matter of defense, it does not prevent proof by the plaintiff of the value of the thing destroyed as a part of the realty.</p> <p>5. Evidence — Objection. No objection to testimony will be considered unless the grounds thereof are stated.</p>

<p>Exemptions — Personal Property — Head of a Family. Where the plaintiff, after the death of his wife, placed his two children with relatives, disposed of nearly all of his household goods, and lived at different places as a boarder but did not reside with either of his children, held, that he was not the head of a family within the provisions of paragraph 2998 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 118, § 3), as construed in Zimmerman v. Franjee, 34 Kan. 650, 9 Pac. 747.</p>

<p>1. Practice, District Co drt— Case-made — A uthority of Judge. Following the doctrine announced by the supreme court in the ■ case of Éddy v. Weaver, 37 Kan. 540, 15 Pac. 492, it is held, that the trial judge was without authority to permit the case-made to . be amended by the plaintiff in error, over the objection of the defendant in error, on the day such case-made was settled and ■ signed, and long after the time granted for making and serving tke same had expired, by inserting therein the following statement: “ The foregoing is all the evidence introduced and offered upon the trial of"this case and all objections thereto and the exceptions”; and further held, that the statement so inserted must be disregarded by the appellate court.</p> <p>2. - Contents of Case-made —- Verity. A case-made duly settled and signed imports verity in all its parts, including the indorsements on an appeal bond whereby the defendant in error carried the case to the district court on appeal from a justice of the peace.</p>

<p>Error from.Reno district court; H. Fierce, judge ■pro tem.</p>

<p>Error from Harper district court; G. W. McKay, judge.</p>

<p>Practice, Courts or Appeals— Vacation of Order of Arrest. An order of the trial court vacating an order of arrest in a civil action, supported by competent evidence, will be regarded by an appellate court as a conclusive general finding in favor of the defendant as to the matter set forth in the affidavit for the order under which he was arrested.</p>

<p>Limitation or Action—Effect of Written Acknowledgment of Debt. A real-estate mortgage was given to secure the payment of an. account for merchandise, and afterward the debtor executed a written instrument in which he acknowledged a certain balance to be due on such account. More than three years thereafter an action in foreclosure was commenced by the mortgagee. Held., that the plaintiff’s cause of action was not brought on the written acknowledgment of the debt but on the original account; that the effect of the written acknowledgment was merely to extend, for three years after the date of such acknowledgment, the-time within which the action might be brought.</p>

<p>1. Practice, Courts oe Appeals — Notice of Settlement of Case-made— Record Sufficient. Failure of the record to show service of notice -of time and place of settlement of a case-made, in . conformity with the order of the court, is not fatal to the validity of the case-made, where such case-made was duly served and' where the certificate of the trial judge shows that all parties were represented at such settlement, and that no amendments were suggested.</p> <p>2. Corporations — Disposition of Assets — Case Follovied. Eureka Light Co. v. City of Eureka, 5 Kan. App. 669, 48 Pac. 935, followed as to the status of a corporation which has disposed of its entire assets.</p> <p>3. Practice, District Court — Res Judicata — Motion to Dismiss. Where a plea of a former adjudication of the issue arising on plaintiff’s cause of action was made by defendants’ motion to dismiss after all the regular pleadings had been filed therein, and where the court, over the objection of the plaintiff, heard such motion to dismiss on evidence and entered an order dismissing the action, and where, thereafter, the plaintiff filed a motion for a rehearing on the said motion to dismiss, held, that the motion for a rehearing was proper under the circumstances of the case and was equivalent to a motion for a new trial.</p> <p>4. -Res Judicata — Improper Procedure. A motion to dismiss is not the proper mode of raising the question of a former adjudication.</p> <p>5. -Evidence in Support of Plea— Case Followed. Auld v. Smith, 23 Kan. 65, followed as to proper evidence in support of the plea of a former adjudication.</p>

<p>Error from Cowley district court; A. M. Jackson, judge.</p>

<p>Error from Marion district court; Lucien. Earle, judge.</p>

<p>1. Evidence — Husband and Wife — Agency. Husband and wife may testify for or against each other concerning transactions in which one acted as the agent of the other.</p> <p>2.-Declarations in Disparagement of Title. Declarations of a person made while in possession of personal property in disparagement of his title or explanatory of the character of his possession are admissible as part of the res gestee.</p>

<p>Error from Cowley district court; A. M. Jackson, judge.'</p>

<p>Error from Chase district court; Lucien Earle, judge.</p>

<p>Error from Cowley district court; A. M. Jackson, judge.</p> <p>STATEMENT.</p> <p>This was an action in replevin, brought in the district court of Cowley county by plaintiff in error Calvin Hood to obtain possession of a quantity of wheat of which he claimed to be owner. One of the •defendants in error, Gibson, who was sheriff of Cowley county, had Seized the wheat under a writ of attachment, and had left it in the care of the other •defendant in error, Hanlen. Hood claimed title to ■the wheat by virtue of an alleged sale to him by one T. S. Green, who was the defendant in the attachment proceedings. The attaching creditors attacked the validity of the alleged sale from Green to Hood on the ground that it was made with the intent on the part of Green to hinder, delay and defraud such creditors. Trial was had before a jury, a verdict returned in favor of the defendants in error, and judgment Tendered thereon, and plaintiff in error brings the case to this court and asks for a reversal of such judgment.</p>

<p>Error from Greenwood district court; O. W. Shinn, judge.</p>

<p>Railroads — Sighiuay Crossing — Cost of Cattle-guards. Where, at the time a public highway was petitioned for, and at the time it was ordered by the county commissioners to be located across the right of way and track of a railroad company, such right of way was fenced on both sides, and where neither a public nor a private necessity existed for the making of a cattle-guard at the point of intersection, except by reason of the location of the highway, held, that the cost of making cattle-guards at such point must be borne by the county and not by the railroad company.</p>

<p>Error from Reno district court; F. L. Martin, judge.</p>

<p>1. Railroads— Fire Damage—Evidence. “ In an action against a railroad company to recover damages for the destruction of an elevator by fire alleged to have been negligently caused by the company in the operation of its railroad, it is not indispensable to prove by direct evidence that the fire escaped from an engine on the defendant’s road; but if the circumstances shown are adequate to convince reasonable men that the fire was so caused, the jury may properly base a verdict thereon.” [Railroad Go. v. Matthews, 58 Kan. 447, 49 Pac. 602.)</p> <p>2. -■ Evidence Examined. The evidence set forth, and held insufficient to .uphold the verdict.</p>

<p>Real Estate — Fixtures—Tax Deed. A lathe so heavy as to require no fastening to hold it in place, and which was readily connected, when its use was desired, by a belt with an overhead shaft, and which was an essential part of the machinery of a manufacturing plant as originally planned and operated, is a part of the fealty, and passes under a tax deed conveying such realty.</p>

<p>Error from Lyon district court; W. A. Randolph, judge.</p>

<p>Chattel Mortgages — Delivery of Possession of Property — Defects Cured. Delivery of possession under a mortgage, before rights have been acquired by others, will cure any invalidity there may be in the instrument arising from an insufficient execution of it, omission to record it, or from its containing a provision which makes it void except between the parties.</p>

<p>Error from Cowley district court; A. M. Jackson, judge.</p>

<p>1. Intoxicating Liquors — Search and Seizure — Motion to Quash Warrant. The warrant under which defendant was arrested, and which charged violations of the prohibitory law by sales of intoxicants and by keeping a nuisance, commanded the seizure of articles other than those named in the statute. The defendant gave bond and afterward moved to quash the warrant. Held, that the warrant was not void.</p> <p>2. - Inspection of Liquors by Jury — Waiver of Error. While it is altogether improper for the state to transform jurors into witnesses by having them smell and taste'alleged intoxicants which were seized by the sheriff at the time of defendant’s arrest, yet as the defendant did not object to such conduct on the part of the prosecuting attorney and of the jury, held, that the error was waived.</p> <p>3. -Election as to Sales — Instructions, Where the court in its charge, in referring to the election made by the county attorney as to particular sales, substantially repeated the language of the county attorney in making the elections, but the instructions as a whole are fair, held, that reversible error .was not committed by the use of said language.</p> <p>4.- Common Nuisance — Statutory Definitions. One count of the information charged that the place kept by the defendant was a common nuisance within each of the three statutory designations of such a nuisance, and the testimony tended to sustain the charge along each of the three particular lines. Held, that the count was not b^d as charging several offenses. ( The State v. Schweiter, 27 Kan. 499.)</p> <p>5. - Evasive Witness — Discretion of Court. A reviewing court is averse to laying down rules restricting the exercise, by a trial court, of its discretion in respect to a persistently-dodging witness, who, in the opinion of the court, is purposely trying to avoid disclosing facts within his knowledge, and a clear abuse of discretion mustappear, to justify unfavorable criticism on the part of a reviewing court in such a case.</p> <p>6. - Oath of Bailiff — Immaterial Error. Omission of the words “without food” from the oath as administered by the clerk of the court to the bailiff who was placed in charge of the jury after the cause was submitted, where there was no misconduct on the part of the bailiff or of the jury in respect to any matter which was, or should have been, stated in the oath, and where no exception was taken to the form of the oath until the filing of the motion for a new trial, held, not to be material error.</p>

<p>1. Intoxicating Liquors — Knowledge of Prosecuting Witness — Case Followed. “ It is not necessary, in a prosecution under the prohibitory law, that the prosecuting witness should have actual personal knowledge of the transactions charged in the information. It is sufficient if he had notice or knowledge thereof, and had the offenses in contemplation when he verified the information which the witness testified to, and for which the defendant was convicted.” (The State v. Ftzel, 2 Kan. App. 673, 43 J?ac. 798.)</p> <p>2. - Unwilling Witness — Examination. Where it is apparent to the trial court that a witness is unwilling, that he is hostile , to the party calling him or to the subject-matter, and that his answers are evasive, an examination may be permitted partaking of the character of cross-examination.</p> <p>3. -- Former Statements of Witness — Refreshing Recollection. Where a prosecuting attorney is surprised by the unexpected and unfavorable testimony of a witness called on behalf of the state, he may, for the purpose of refreshing the memory and awakening the conscience of the witness, read from an affidavit made by the witness relating to the same subject-matter, and inquire of the witness if he made such statements.</p>

<p>1. Ejectment — Evidence Examined. The objectionable evidence set forth, and its admission by the trial court held not to be error.</p> <p>2. - Record Examined — Instructions. The record examined, and sufficient evidence found on which to base the instruction complained of.</p> <p>3. Limitation oe Action — Possession of Real Estate — Adverse Claim. Where a strip of land is owned by one party, and inadvertently or by mistake it is in the possession of another, “the statute of limitations will not begin to run to bar a recovery of the strip until the occupant makes some claim of ownership thereto beyond the naked possession, and notice of said claim is brought to the knowledge of the owner of the legal title thereto.” (Rasdell v. iShumway, 6 Kan. App. 45, 49 Pac. 631.)</p>

<p>Pleading — Misjoinder of Causes of Action. Where a cause of action arising out of a partnership transaction is joined with one arising out of an individual transaction there is a misjoinder.</p>

<p>Error from Reno district court’; F-. L. Martin, judge.</p>

<p>Railroads — Contract of Shipment — Notice of Claim for Dáma.ges. A railway company unloaded a car-load of fat hogs which it had received for shipment from Cheney, Kan., to Kansas City, Mo., and placed them in the stock-yards at Wichita after the animals had been exposed to a very severe storm for several hours while the railway company was endeavoring to return them from Wichita to the shipper. Eighteen hogs were dead at the time the car was reloaded at Wichita by the railway company to be forwarded to Kansas City, Mo., where they were delivered to the shipper’s agent. Held, that the written notice provided for by the contract of shipment was not a prerequisite to the right to recover the value of the hogs which died before such reshipment.</p>

<p>Error from Greenwood district court; C. W. Shinn, judge.</p>

<p>1. Practice, District Court — Demurrer to Evidence — Duty of Court. “ On a demurrer to evidence the court cannot weigh conflicting evidence, but can consider only that portion of the evidence which tends to prove the case of the party resisting the demurrer.” (Christie v. Barnes, 33 Kan. 317, 6 Pac. 599.)</p> <p>2. - Replevin — Demand and Refusal. “Where the defendant in a replevin action asserts title to the property in himself in opposition to that claimed by the plaintiff, or where he alleges such title in his answer, no proof of demand and refusal is neces sary.” (Chapin v. Jenkins, 50 Kan. 335, 31 Pac. 1081.</p>

<p>Limitation or Action—Case Followed. The case of Frame v. Ashley, 59 Kan. 477, 53 Pac. 474, cited and followed.</p>

<p>Error from Marion district court; Frank Doster, judge.</p>

<p>Railroads—Transportation of Shipper. Chapter 167 of the Session Laws of 1897 (Gen. Stat. 1897, ch. 70, §§67-69) is constitutional and valid.</p>

<p>1. Officers — Process Regular — Protection Against Liability. “A sheriff cannot be wiser than his process, and if the officer or tribunal by which it is issued has jurisdiction - over the subject- , matter, and the process is regular on its face, showing no departure from the law or defect of jurisdiction, it will afford a complete protection' to the officers executing it against’ any prosecution therefor.” {Barr v. Combs, 29 Ore. 399, 45 Pac. 776.)</p> <p>2. -Action on Official Bond — Negligence of Constable. In an action on a constable’s bond against the officer and his sureties, for damages occasioned by the alleged wrongful seizure and sale of the plaintiff’s property under attachment process, the petition alleged that part of the property levied on was wasted through the officer’s negligence, and that the attached property was sold at private sale. Held, that a demurrer to the petition, on the ground of failure to state facts sufficient to constitute a cause of action against the defendants, was properly overruled.</p>

<p>Error from Harper district court; G. W. McKay, judge.</p>

<p>Error from Greenwood district court; C. W. Shinn , judge.</p>

<p>Error from Cowley district court; J. A. Burnette, ' judge.</p>

<p>Error from Lyon district court; W. A. Randolph, judge.</p>

<p>1. Intoxicating Liquors — Evidence—Memoranda. Where material testimony of a witness for the state was declared by the witness to rest on a memorandum made by him in a book not produced in court, held, error to limit narrowly the cross-examination in respect to the alleged memorandum book.</p> <p>2. - Detectives — Evidence of Employment. Where the testimony for the state in a misdemeanor case was entirely that of .two paid detectives, held, error to sustain an objection made by the state to a question asked one of the detectives on cross-examination concerning the amount paid him by the county attorney for his services.</p> <p>3. -Motives of Witness — Instructions. It is the duty of the trial court to instruct the jury to scrutinize closely the testimony of any one who acted as a detective for the state in the transaction wherein the defendant is alleged to have committed a misdemeanor, and who may have had a motive for testifying that an illegal sale of intoxicating liquor was made, even though no such sale was actually made.</p> <p>4. - Erroneous Assumption in Instruction. Instructions which assumed the existence of a state of facts not shown by the evidence held erroneous.</p>

<p>Appeal from Harvey district court; Matthew P. Simpson, judge.</p>

<p>1. Practice, District Court—Settlement of Case-made—Former Decisions Modified. The construction of the statutes relative to the powers of a j udge to settle a case after his term of office expires contained in Water field v. Bank, 6 Kan; App. 743, 50 Pac. 971, and Insurance Co. v. Nichols, 6 id. 923, 50 Pac. 940, modified.</p> <p>2. -Expiration of Term of Trial Judge—Time. When the term of the trial judge expires before the time fixed for making and serving a case, he should settle the case the same as if his term had not expired; and if his term expires after the time fixed for making and serving a case, yet if the time for settling a case had been fixed before the expiration of his term, which time did not expire until after the expiration of his term, he should also settle the case. (Debenture Go. v. St. John, ante, p. 554, 54 Pac. 798.)</p>

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

<p>1. Practice, District Court — Plea to Jurisdiction —Waiver. “Illegality in the service of process by which jurisdiction is to be obtained is not waived by the special appearance of the defendant to move that the service be set aside; nor, after such motion is denied, by his answering to the merits. Such illegality is considered as waived only-when he, without having insisted upon it, pleads in the first instance to the merits.” (Harkness v. Hyde, 98 U. S. 176.)</p> <p>2. - Garnishment — Action for Statutory Penalty. Garnishment does not lie in an action to recover the statutory penalty for neglect and failure to discharge a real-estate mortgage which has been fully paid.</p> <p>3. -- Service by Publication — Affidavit. In order to support service by publication against a non-resident defendant in attachment proceedings, the affidavit for such service should show that the defendant has property within this state subject to attachment.</p>

<p>1. Probate Court^—Jurisdiction. The facts stated, and held, that the probate court did not have jurisdiction to render judgment in this case.</p> <p>2. Jurisdiction— Power to Render Particular Judgment. Juris- " diction is not only the power to hear and determine, but also the power to render the particular judgment entered in the particular case.</p> <p>3. Evidence Examined. The evidence examined, and held, that the judgment of the trial court is fully sustained.</p>

<p>Error from Pratt district court; G. W. McKay, judge.</p>

<p>1. Agency — Substantial Issue — General Finding. Whether an agency existed on the part of the plaintiff in the transaction which the defendants set up as releasing them from liability to the plaintiff on his purported cause of action being the substantial issue in the case, the general finding of the trial court in favor of the defendants was equivalent to a finding that the alleged agency did not exist.</p> <p>2. Conveyance — Blank Deed. Under the peculiar facts of this case, it is held that a warranty deed from which the name of the grantee was omitted at his own request operated as a conveyance of the land therein described.</p>

<p>Error from Greeley district court; J. E. Andrews, judge.</p>

<p>1. Practice, District Court — Demurrer to Petition — Contributory Negligence. Before a demurrer can be sustained to a petition on the ground that the petition shows on its face that the plaintiff is guilty of contributory negligence, the facts stated must raise such a presumption of negligence that the court would be bound, as a matter of law, to declare that no recovery can be had.</p> <p>2. -Demurrer to Evidence — Failure of Proof. “Where the defendant in a case which is being tried by a jury files a demurrer to the plaintiff’s evidence on the ground that the evidence does not prove any cause of action, held, that, unless the plaintiff has utterly failed by all his evidence to prove his case, or some material fact in issue in the case, the demurrer should-be overruled.” [Brown, Adm’r, v. A. T. & S. F. Bid. Co., 31 Kan. 1, 1 Pac. 605.)</p> <p>3. -Instructions Examined. The special instructions asked for examined, and held, that they are, so far as applicable to the facts in this case, covered by the general charge; and further held, that the general charge fully states the law of the case.</p>

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

<p>Error from Edwards district court; S. W. Yandivert, judge.</p>

<p>Criminal Law — Assault—Pointing Unloaded Revolver. The pointing of a revolver which is not loaded in a threatening manner at another is an assault when the party at whom it is pointed does not know that it is not loaded, or has no reason to believe that it is not, and is by the act of the menacing party put in fear of bodily harm.</p>

<p>School Districts — Removal of Sehoolhouse — Report of Appraisers. Where a school-district meeting, by a vote of less than two-thirds of the legal voters of the district, decided to change the site of the district sehoolhouse, and appointed appraisers, under the provisions of section 69, chapter 63, General Statutes of 1897 (Gen. Stat. 1889, ¶5590), to determine whether the value of the sehoolhouse exceeded or fell below $400, and where the report of the appraisers, the good faith of which was not impeached, fixed the value of the sehoolhouse at less than $400, held, that the report of the appraisers was conclusive evidence as to the value of the sehoolhouse, and that, upon the filing of such report, it became the duty of the district board to change the sehoolhouse site, as directed by the district meeting. •</p>

<p>Error from Gray district court; Francis C. Price, judge.</p>

<p>Error from Pratt district court; W. O. Bashore, judge.</p>

<p>Practice, District Court—Legalizing Act—Supplemental Petition. Where an action is commenced on school-district warrants, and before trial the legislature passes an act legalizing the issue of the warrants sued on, held, that the passage of the act is a fact material to the proper determination of the case, and may be set up in a supplemental petition.</p>

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

<p>Construction or Contract—Sale of Goods. Where a contract provides for payment at a stipulated price for clean and satisfactory seed, to be made immediately upon the receipt of such seed and the ascertaining that it is vital and fit for seed purposes, the payee cannot arbitrarily reject such seed if it is clean and vital and fit for seed purposes.</p>

<p>Fees and Salaries— County Attorney — Power of County Board. Under the provisions of paragraph 1799, General Statutes of 1889, a board of county commissioners of a county the population of which was between 1000 and 5000 was given the authority and discretion to fix the salary of the county attorney of such county at a less sum than $100.</p>

<p>Error from Edwards district court; S. W. Vandivert, judge.</p>

<p>Error from Finney district court; A. J. Abbott,, judge.</p>

<p>Error from Stafford district court; Ansel R. Clark, judge.</p>

<p>1. Irrigation. — Duty of Company — Rights of Consumer. Under the provisions of section 1, article 2, chapter 133, Laws of 1891 (Gen. Stat. 1897, ch. 79, § 10), the owner of an irrigating canal is bound, provided he has water sufficient for the purpose, to admit a prior purchaser to its use and enjoyment on his payment or tender of the proper price therefor, provided the right thereto has not been forfeited, and mere change of ownership of the irrigating canal does not divest such right.</p> <p>2. -■ Failure to Supply Water — Action for Damages. In an action against an irrigation company to recover damages for failure to supply the plaintiff with water for irrigation purposes, it was admitted that demand was not made on the company for water until July 29, but in its instructions the court proceeded on the theory that the company was liable for whatever loss to crops the plaintiff had suffered during the year in which the demand was made. If eld, error.</p>

<p>Bastardy — Evidence—Examination by Physician. In bastardy-proceedings, where the relatrix and the defendant agree that a physician shall make an examination for the purpose of determining the duration of pregnancy, held, that certain statements made by the relatrix to the physician during the examination were competent.</p>

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

<p>Error from Finney district court; ¥m. Easton Hutchison, judge.</p> <p>STATEMENT.</p> <p>One Christ. Fritz brought an action of replevin in the district court of Finney county to' recover certain livestock of John Kauter, the plaintiff in error herein, which had been taken possession of by Kauter under and by virtue of a certain chattel mortgage executed by Fritz to Kauter, Fritz executed a replevin undertaking, signed by himself as principal, and by John O’Loughlin and Charles Shultz, two of the defendants in error herein, as sureties. Judgment was rendered in favor of Kauter and against Fritz, and Fritz then applied for a stay of execution, which was granted, and a supersedeas bond signed by Fritz as principal, and by Henry Entz, another defendant in error herein, and John O’Loughlin, was filed. Fritz failed to prosecute a petition in error to reverse said judgment, and more than one year elapsed from the date thereof and the judgment became final. Plaintiff in error, Kauter, then brought this action in the district court of Finney county against Entz and O’Loughlin on the replevin and supersedeas bonds. Copies of the bonds were not set out in the petition.</p> <p>A summons was issued to the sheriff of Finney, county and served on Henry Entz, and returned “not found” as to O’Loughlin. Entz filed a motion to require the plaintiff to make his petition more “definite and certain by alleging facts showing whether he sought to recover on the replevin undertaking or supersedeas bond and to allege facts showing why he did not attach such exhibits.” On the same day O’Loughlin filed a motion to require the plaintiff “to elect upon which cause of action set out in his petition ^the replevin undertaking or supersedeas bond) he would prosecute his action.”</p> <p>Both of the motions were sustained by the court, and plaintiff amended his petition by setting up facts showing why he was unable to file a copy of the replevin bond, nothing being said in the amendment about the supersedeas bond. Defendants demurred to the petition as amended, and plaintiff asked leave to amend, which was granted, and the demurrer was then withdrawn.</p> <p>The amended petition set out the execution of the replevin undertaking, signed by Charles Shultz and John O’Loughlin. Afterward the plaintiff further amended his petition by making Charles Shultz a party defendant and attaching a copy of the replevin undertaking, and further amended it so as to make it conform to the ruling of the court requiring him to elect, and elected to stand on the replevin undertaking signed by O’Loughlin and Shultz but not by Entz. To the petition thus amended O’Loughlin filed a demurrer, which was overruled. Entz then demurred to the petition as thus amended, on the ground and for the reason that it did not state facts sufficient to constitute a cause of action against him. The demurrer was sustained and final judgment rendered in favor of Entz for costs.</p> <p>Before final judgment was rendered in favor of Entz, summons was issued to Kearny county, and was by the sheriff of said county served on Shultz and O’Loughlin. Shultz appeared and filed his motion to quash said summons and set aside such service, which motion was sustained. Another summons was then issued to Kearny county and served on O’Loughlin, Shultz, and Entz. Entz appeared specially and moved to set aside the service of such summons, and this motion was heard with a plea in abatement filed by said O’Loughlin, and the court sustained both the motion and plea.</p>

<p>Error from Ness district court; J. E. Andrews, judge.</p>

<p>Practice, District Court — Bight to Dismiss. After a final submission of a case to a court or jury, the plaintiff has no legal right to dismiss his case without prejudice. It is a matter resting in the sound discretion of the court, and its ruling will not be reversed unless it appears that such discretion has been abused.</p>

<p>Error from Anderson district court; A. W. Benson,. judge.</p>

<p>Injury to Realty — Measure of Damages. In an action to recover damages for injuries to real property, the petition specified the number and value of certain fruit and ornamental trees claimed to have been destroyed by gases generated by and permitted to escape from defendant’s zinc-smelting plant, and also alleged other damages to the amount of $3600 to the property. No testimony as to the alleged value of the trees was introduced, and the court, over the objections of the defendant, admitted testimony as to the value of the premises before and after the injury complained of, and instructed the jury that the measure of the plaintiff’s damage was the difference between the value of the plaintiff’s property before and after the alleged injury thereto. Held, not error.</p>

<p>Error from Miami district court; John T. Burris, judge.</p>

<p>Corporations — Execution against Stockholders. Where, after an execution on a judgment against a corporation was returned nulla bona, the court, on motion of the judgment creditors, ordered an execution to issue against the stockholders of the corporation, and where the execution so ordered was not issued until nearly two years after the judgment against the corporation had become dormant, held, that such execution was invalid.</p>

<p>Error from Allen district court; L. Stillwell, judge.</p>

<p>Practice, District Court—Jury—Compromise Verdict. An unsworn statement by one of the jurors in open court that the verdict in the hands of the trial judge and not yet filed was a compromise verdict does not vitiate the same, where the jury thereafter retire to the jury-room and subsequently return into court with the verdict corrected in certain particulars, and no-further complaint or criticism respecting the action of the jury is-made by any member thereof, and the nature of the alleged compromise is not stated.</p>

<p>Error from Bourbon district court; J. S. West, judge.</p>

<p>Error from Miami district court; J. T. Burris, judge.</p>

<p>Error' from Osage district court; William Thomson, judge.</p>

<p>Homestead and Exemption — Occupancy by Tenant. In March, 1890, the defendants in error, intending to acquire a homestead, purchased a tract of land occupied by a tenant of their grantor under a lease expiring March 1, 1891, and before the end of the tenant’s term voluntarily extended the same until after the wheat harvest of 1891, and also procured an extension of the term of the lease under which they were occupying another tract until the fall of 1891, where they remained until October 20 of that year, when they moved on the land claimed as a homestead, but not until six days after it had been levied on under an execution. The removal was hastily made, without preparation of the premises for occupancy, and on the next day after a consultation with an attorney concerning their homestead rights. Held, that the land was not invested with the homestead character and was subject to levy under the execution.</p>

<p>1. Case-made — Certificate. Under the decision in Donnell v. Reese, 6 Kan. App. 563, 51 Pac. 584, the case-made herein is held sufficient.</p> <p>% Fraudulent Conveyance — Instructions. Under the facts stated in the opinion, the instructions given to the jury did not cover the issues presented by the pleadings and the evidence.</p>

Error from Harper district court, G. W. McKay, judge ; STATEMENT. The probate court of Harper county discharged appellant as administrator of the estate of Catherine Butler, deceased, to compromise certain actions brought by decedent to recover the value of certain property seized under writ of attachment. Under the order to compromise, one T. A. Noftzger, attorney for the administrator and also attorney for the decedent in the suit compromised, collected the sum of $663.40.

<p>Railroads — Duty as Bailee. A railway company which, as bailee, accepts goods for storage in its depot after such goods have reached their destination is bound in law to deliver the same to the consignee or to his authorized agent,</p>

Error from Rice district court; Ansel R. Clark, judge. statement. In November, 1887, George W. Barber and his wife executed and delivered to the plaintiff their promissory note for the principal sum of $550 and a real-estate mortgage to secure the payment of the note. The mortgage purported to convey land in Rice county, Kansas, but described it as being the west one-half of the southeast quarter of section 6, township 18, range 17, west of the sixth principal meridian.

Error from Finney district court; Wm. Easton Hutchison, judge. STATEMENT. On the 15th day of January, 1890, the defendant in error entered into a written contract with the board of county commissioners of Kearny county, Kansas, whereby he leased and rented certain real estate in the city of Hartland, Kearny county, for á courthouse.