Volume 81 — Kansas Reports

<p>Appeal from Jackson, district court; Marshall Gephart, judge.</p>

<p>Appeal from Jackson district court; Marshall Gephart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Res Judicata — Ejectment of Tenant — Landlord Not Bound. A landowner who is not a party to, has no notice of, and does not defend, an action of ejectment prosecuted against his tenant is not bound by a judgment in the action adverse to the tenant.</p> <p>2. -Res Judicata. Purchasers from a landowner in the situation described, acquiring his title subsequent to the judgment in ejectment, take such title unprejudiced by the judgment, although they were defeated parties to the ejectment suit.</p> <p>3. Equitable Relief — Lien for Taxes. A tenant in possession took out a tax deed of the land and conveyed to another, maintaining, however, his proper relation to the landlord-owner. In an action of ejectment to which the landlord was not a party the tax deed was set aside and the tax-title purchaser was given a lien for taxes, which the claimant was required to satisfy before being let into possession. The claimant paid the amount of the lien, but did not gain possession of the land, and deeded it to another. The tax-title purchaser then procured a conveyance from the owner and brought an action to quiet title against the grantee of the ejectment claimant. Held, that the defendant should be regarded as the equitable assignee of the lien for taxes, and that equitable relief to the plaintiff should be conditioned upon its satisfaction.</p>

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

<p>Appeal from Marion district court; Oscar L. Moore, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Stenographic Notes. The provisions of section 1 of chapter 494 of the Laws of 1905 do not constitute a restriction of the use to be made of stenographic notes in a nisi prius trial, but are an extension of such use.</p> <p>2. - Testimony Given at a Former Trial — Stenographic Notes. To reproduce the testimony of a witness who has died or is absent from the jurisdiction of the court and who has testified to the fact in issue on a former trial it is not error to permit the court stenographer to translate and read his stenographic notes of such evidence in the hearing of the jury, instead of requiring that the notes be transcribed and certified.</p>

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

Heizer, judge. STATEMENT. In July, 1900, Edmond Vander Meerchen executed and delivered to Stella C. Beakey a warranty deed for 1630 acres of land in Pottawatomie county, Kansas, and to secure the payment of the purchase price, or the principal part thereof, took a note for $17,500, due March 1, 1901, and a mortgage on the land to secure the note.

<p>Appeal from Wichita district court; Charles E. Lobdell, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Office and Officers — Witness Fees — Equal Protection of the Laws — Uniform Operation. Chapter 183 of the Laws of 1907, providing that certain public officers shall not be entitled to witness fees in certain cases, does not deprive the officers named of the equal protection of the laws and operates uniformly throughout the state.</p>

<p>Appeal from Finney district court; Charles E. Lobdell, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Publication Service — Partnership—Firm Name. Service by publication upon a partnership by its firm name, without specifying the individuals composing it, is not necessarily void.</p> <p>2. --Description of the Parties — Default Judgment — Collateral Attack. Where a mortgage was executed to a partnership composed of John D. and Mary Knox, the grantees being therein described only by their firm style of “John D. Knox & Co.,” and a tax-deed holder thereafter obtained a default decree quieting title to the mortgaged property, based upon service by publication, in an action in which the mortgagees were referred to throughout merely as “John D. Knox & Co.,” the judgment is not open to a collateral attack on account of the failure of the publication notice and other portions of the record to name the mortgagees individually or to describe them more definitely.</p> <p>3. Tax Deeds — Amount Bid by County Treasurer. A recital in a tax deed over five years old that the land conveyed when offered at the tax sale could not be sold for a stated sum, being the whole amount against it, and was bid off by the treasurer for the county, sufficiently shows the amount for which it was so bid off.</p> <p>4. -Assignment of Tax-sale Certificate by County Clerk. A tax deed over five years old which recites that property was originally bid in by the county treasurer, that thereafter an individual paid him an amount equal to the cost of redemption, and that the “purchaser” afterward paid the subsequent taxes, is not rendered void because it contains no recital that the county clerk assigned the tax-sale certificate. That the assignment was made may be inferred from the fact that the person paying the money is referred to as the purchaser.</p>

<p>Appeal from Trego district court; Jacob C. Ruppenthal, judge.</p> <p>(First opinion not reported.)</p>

Flannelly, judge. STATEMENT. The plaintiffs sought to enjoin Fletcher and wife and Yoke from operating for oil or gas or removing the same from land belonging to the Fletchers.

Aikman, judge. STATEMENT. The gas company commenced this action in-the district court of Butler county perpetually to enjoin the defendants from disturbing or interfering in any manner with the pipe line which the gas company had con-' structed upon the defendant’s land.

<p>SYLLABUS BY THE COURT.</p> <p>1. Fees and Salaries — Officers of Atchison County — Statute Not Superseded. Chapter 250 of the Laws of 1903, regulating the compensation of the sheriff and other officers of Atchison county, is not superseded or annulled by chapter 227 of the Laws of 1905, and the compensation of the sheriff of that county must be measured by the provisions of the earlier act.</p> <p>2. Constitutional Law — Delegation of Power — Statute Made Operative by Action of County Commissioners. The provision of the act of 1905 that the extra allowance for boarding and lodging prisoners shall not be operative until the board of county commissioners of the county shall make an order in writing to that effect and shall enter the same on their journal is not an invalid delegation of legislative power.</p>

<p>Appeal from Wyandotte court of common pleas; Lewis C. True, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Stipulation as to Facts — Issues Made by Pleadings Not Enlarged — Omissions in Pleadings Not Waived. A'written stipulation as to the existence of certain facts, entered into by the parties to an action for the express purpose of avoiding the necessity of taking depositions, the agreement being that the statements contained may be read in lieu thereof, subject to objections as to competency and relevancy, does not enlarge the issues made by the pleadings or operate as a waiver of any omission therein.</p> <p>2. Railroads — Federal Safety-appliance Act — Absolute Duty to Keep Equipment in Repair. The several sections of the act of congress of 1893 (ch. 196; 27 U. S. Stat. at L. p. 531) making it unlawful for railroad companies'engaged in interstate commerce to use cars not equipped with certain specified appliances are framed upon the same general plan, and notwithstanding any minor differences in their language a declaration by the supreme court of the United States that one of them is intended to impose upon the carrier the absolute duty of keeping in good repair the equipment therein required, irrespective of any question of negligence, determines that a like interpretation is to be given to the others. The first paragraph of the syllabus in Railway Co. v. Brinkmeier, 77 Kan. 14, overruled.</p>

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

Peters, judge pro tem. STATEMENT. Herbert Marriage, a resident of Moulsham Lodge, Chelmsford, in the county of Essex, England, departed this life at his residence on the 12th day of September, 1904, leaving two separate and distinct'wills, one of which is known as the English will and the other as the .American will. The American will contained a declaration that it related solely and exclusively to the testator’s property in the United States of America, and not elsewhere.

<p>SYLLABUS BY THE COURT.</p> <p>1. Judicial Sales — Attachment—Time of Confirmation and Issuance of Sheriff’s Deed. Where real estate has been attached in an action for money, and after judgment has been entered for the plaintiff the land is sold upon an order of sale to the plaintiff and due return thereof has been made by the sheriff, such sale may upon application of the plaintiff be confirmed and a sheriff’s deed issued to the purchaser at^any time thereafter, even after the lapse of twelve years, where no objection by the defendant in the action is or has been made to the sale or confirmation.</p> <p>2. - Sheriff’s Deed — Conveyance of Defendant’s Title. Where, under the circumstances above stated, a sheriff’s deed has been executed and delivered to the purchaser, it conveys all the title possessed by the defendant when the order of sale was issued.</p> <p>3. - Purchase of Quitclaim Deed from Defendant, before Confirmation — Notice. Where in such a case a third party, after the sale and before the confirmation, takes a quitclaim deed to the land from the defendant in the action, he will be charged with notice of the record in such action and will acquire no interest in the land by such deed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Warehousemen — Breach of Contract to Store Goods in a Certain Building — Injury by Fire. A warehouseman who contracts to store the goods of another in a brick building, but in violation of his agreement stores them in an adjoining wooden building, sheeted with iron, which is less secure, and the goods are burned in a fire which did not destroy the brick building or its contents, is liable for the loss of the goods.</p> <p>2. -Implied Duty of Warehousemen. In the absence of an express agreement the law implies that a warehouseman for compensation will exercise reasonable care to protect and preserve property entrusted to him for safe-keeping, and imposes a liability for a loss resulting from his failure in that respect.</p> <p>3. - Warehousemen Not Insurers — Extent of Duty. He is not an insurer of goods received for storage, nor is he required to provide a building which is secure from danger from within or without that could not be foreseen or provided against. He is required not only to place such goods in a building reasonably adequate and safe against danger from within, but should exercise due care to store them in a place where they will not be exposed to unusual hazards from without.</p> <p>4. - Injury by Fire — Election of Remedies. In an action to recover for the loss of goods entrusted to a warehouseman it is competent for the owner to set up his cause of action in two counts: one upon an express agreement as to the character of the building in which the goods are to be stored and the care to be exercised, and another based on the implied undertaking of the warehouseman to exercise reasonable care in providing an adequate and safe place for the goods delivered to him for safe-keeping.</p>

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

STATEMENT. This is a suit to enjoin the city of Manhattan from using one of its buildings as a pesthouse. It is a city of the second class. The State Agricultural College is located in that city. About 2000 students attend this college. These students room and board at clubs and boarding houses in the city. In the early spring of 1909 the smallpox appeared among the students in some of these clubs and boarding houses.

<p>SYLLABUS BY THE COURT.</p> <p>1. Habeas Corpus — Appeal from Examining Magistrate to District Court. The civil code (old Civ. Code, §672; Civ. Code 1909, § 700) gives a party committed for a crime by an examining magistrate an appeal to the district court by the writ of habeas corpus.</p> <p>2. - Discharge by District Court — Appeal to the Supreme Court. Where an appeal is so taken to the district court from the order of an examining magistrate committing a person upon a criminal charge, and he is upon such proceedings dis- ■ charged by the district court for want of probable cause to hold him for trial, there is no authority for an appeal to this court from the order discharging the prisoner.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Change of Venue — Prejudice of the Judge. A court is not compelled to grant a change of venue upon the affidavit of the defendant alleging prejudice of the judge, although no counter affidavit or proof is filed, where the judge is satisfied that his mind is free from prejudice and that the statements in the defendant’s affidavit are without foundation.</p> <p>2. -— Same. The fact that the court in approving a verdict and pronouncing sentence at a former trial of the defendant upon the same charge expressed an opinion of the defendant’s guilt does not of itself indicate prejudice.</p> <p>3. Practice, District Court — Expression of Opinion — Influencing the Jury. Ordinarily an expression of opinion by the court upon an issue of fact has great weight with jurors, and he should therefore carefully abstain from indicating his opinion upon a material question of fact which it is the province of the jury to determine.</p> <p>4. Criminal Law — Cross-examination of Witnesses by the Defendant: It is competent for a defendant to bring out on-cross-examination of a witness against him any fact or circumstance tending to show that his testimony may have been influenced or colored by intimidation or by some selfish or personal motive, and thus aid the jury in measuring the value of the testimony.</p> <p>5. - Same. It was competent for the defendant to bring out, or show, that the principal witness for the prosecution, who it was claimed was also involved in the offense charged, when called upon to testify at the preliminary examination of the defendant, refused to give his testimony; that he was then committed to the county jail .for several hours until he became willing to testify; and that then he was brought in and gave testimony exculpating himself and supporting the charge against the defendant. And the defendant is also entitled to bring out any circumstances which tend to show that the testimony of the witness was obtained by coercion or interest in the result of the trial, or which might affect his credibility.</p> <p>6. Instructions — Emphasizing Isolated Facts. It is not proper for a court in instructing a jury to call special attention to an isolated fact, and by making it prominent suggest to the jury that it is of greater significance and weight than other unmentioned facts in the case which are of no less importance.</p>

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

<p>Appeal from Cherokee district court; Corb A. McNeill, judge.</p>

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

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

<p>Tax Deeds — Second Deed — Recorded Five Years — Time of Issuance — Reference to First Deed. A tax deed which was issued more than four years after the date of the tax sale, and which does not recite the issuance of an invalid deed within that time, held, after having been recorded for five years, to be good upon its face and not open to attack by extraneous evidence.</p>

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

<p>1. Railroads — Injury to Team of a Licensee. While the plaintiff was unloading lumber from a car on a sidetrack to his wagon a train on thé main line struck his team, killing one animal and injuring the other. The circumstances held to have been such as to warant a recovery.</p> <p>2. Instructions — Negligence of the Plaintiff that Does Not “Materially” Contribute to the Injury, An instruction that negligence of the plaintiff did not bar a recovery unless it . “materially” contributed to the injury held not to be prejudicial.</p> <p>3. Damages — Evidence—Value of Animal Killed,. A finding of the amount of damage to the injured animal held to be supported by evidence of its original value and the nature and extent of its injuries.</p>

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

<p>Deeds — Husband, and Wife — Construction—Remainder—Provision Not Repugnant. A deed to a husband and wife contained a stipulation that after their death the land should inure to the heirs of the latter. The husband survived the wife. It was held that upon his death the title passed to the heirs of the wife, to the exclusion of all other persons, including the heirs of the husband. -</p>

<p>Appeal from Geary district court; Oscar L. Moore, judge.</p>

<p>Contracts — Sale—Specific Performance. A decree of specific performance of a contract for the sale of real estate held to be supported by the evidence.</p>

<p>Motion to retax costs.</p>

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

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

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

<p>Appeal from Decatur district court; William H. Pratt, judge.</p>

<p>Appeal from Wyandotte court of common pleas; Lewis C. True, judge.</p>

<p>Parole — Conviction of Manslaughter — County Jail Sentence. The statute held to authorize the district court to parole a person sentenced to the county jail upon a conviction of manslaughter in the third degree.</p>

<p>Appeal from Neosho district court; James W. Finley, judge.</p>

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

<p>Correction — Statement in Original Opinion. The statement of facts in the case of Insurance Co. v. Corbett, 69 Kan. 564, supplemented.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>Practice, District Court — Verdict and Findings Unsupported' by Evidence. Where a general verdict and the special findings, of fact are unsupported by any evidence they should be vacated and set aside, and a judgment entered thereon is er-. roneous and will be reversed.</p>

<p>Appeal from Seward district court; William H. Thompson, judge.</p>

<p>Appeal from Sedgwick district court; David M. Dale, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deeds — Description of the Land. The statutory rule for interpreting and applying descriptions of property conveyed in tax deeds is that “any description of land which shall indicate the land intended with ordinary and reasonable certainty, and which would be sufficient between grantor and grantee, in an ordinary conveyance, shall be sufficient.”</p> <p>2. -- Description of the Land — Extrinsic Evidence. The law does not require that a description of land in a tax deed shall be so complete that a resort to extrinsic evidence to determine the identity or location of the land intended shall be unnecessary.</p> <p>3. - Same. To apply a defective or doubtful description and identify the property conveyed the court may look to facts and circumstances suggested by the defective description, such as the record of the tax proceedings under which the property was sold and conveyed, and in aid of the defective description may also look to the acts and conduct of the parties concerned showing identification or a practical location of the property intended.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Tax Deeds — Description of Land. Where, by reason of the deficient acreage of a congressional township, a quarter section thereof is divided by the government survey, in accordance with the usual practice, into an eighty-acre tract and two numbered lots, each containing somewhat less than forty acres, one of such lots is sufficiently described in a tax deed as a quarter of the quarter section.</p>

<p>Appeal from Neosho district court; A. S. Lapham, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Agent’s Commission — Procuring a Customer. Where the owner of land lists it with a Broker under an agreement to pay a commission provided the latter finds a buyer at a given price, the broker is entitled to his commission when he has produced a purchaser able and willing to take the property at the terms named, and is not required to procure from the purchaser a binding contract.</p> <p>2. - Independent Brokers — Procuring Cause of Sale. Where property-is placed in the hands of several brokers for sale, the owner is bound to pay the broker who is the primary, proximate and procuring cause of the sale, although the sale is consummated by another broker on different terms. (Votaw v. McKeever, 76 Kan. 870.)</p> <p>3. -Negotiations Opened by One Broker — Sale Closed by Another. In such a case, where a prospective purchaser has been introduced to the owner by one broker and the negotiations are pending and have not fallen through, the owner can not, with knowledge of the facts, complete the purchase with another agent and avoid his liability'for the commission due to the first broker.</p>

<p>Appeal from Kiowa district court; Gordon L. Finley, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Master and Servant — Evidence of the Existence of the Relation. In an action against a gas company for damages for personal injuries resulting from an explosion of gas negligently allowed to escape from open gas jets it was shown that the company had municipal authority to supply gas to consumers in the city, and that it was its duty to place meters in buildings and apartments to be supplied with gas, free of charge; that application was made to the company to place a meter in an apartment, and within a day or two two men appeared with a meter to be placed in the apartment for which application had been made, and, after obtaining a key, entered the basement of the building and installed a meter. Held, that these facts justified an inference that the men who placed the meter were the employees of the gas company.</p> <p>2. Personal Injuries- — -Negligence of Defendant — Failure of Proof. There was an explosion of gas which escaped from jets left open in an apartment. The evidence relating to the opening of the jets and allowing them to remain open is held to be insufficient to warrant an inference that the jets were negligently opened and left open by the employees of the gas company.</p> <p>3. Instructed Verdict — Review "of Ruling — Motion for a New Trial. A motion for a new trial is necessary to a reexamination of the facts in a case where a verdict for the defendant is rendered on the plaintiff’s testimony by direction of the court. (Darling v. Railway Co., 76 Kan. 893.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Slander — Charge of Unchastity — “Dirty Slut.” According to their usual, popular and natural signification the words “dirty slut,” spoken of a woman, do .not of themselves impute unchastity.</p> <p>:2. -Pleading — Innuendo. In an action for slander based on the words referred to their meaning can not be expanded to include unchastity merely by the innuendo of the petition. If in the light of the occasion and circumstances of their utterance they conveyed such a meaning the extrinsic facts showing they were defamatory should be pleaded in the prefatory part of the petition.</p> <p>:S. -Sufficient Charge of Unchastity. The following words spoken of a married woman — “I suppose that you have heard the slander that’s going about the Coopers; that little girl was born within four or five months after they were married; now what do you think of them?” — fairly mean the woman’s child was begotten out of lawful wedlock and that she had been guilty of a breach of chastity.</p> <p>■4. -f- Allegation and Proof of Special Damages — Common-law Rule. The rule of the common law that spoken words imputing unchastity to a female are not actionable without allegation and proof of special damages took its rise in England from conditions peculiar to that country and is based upon reasons which are not apposite under the legal institutions of this state. It is out of sympathy with the true spirit ■of the bill of rights, lacks the sanction of justice and right, and does not. apply to the conditions or meet the needs of the people of this state.</p> <p>5. Common Law — Statute Continuing it in Force — Limitation. Under the statute of 1868 (Gen. Stat. 1901, §8014), which governs the matter, the common law of England remains in force in this state in aid of the general statutes only so far as it is not modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people.</p> <p>6. -Modification of Common Law a Judicial Question. It is a judicial question whether the common law invoked in a judicial proceeding has been modified by any of the means pointed out in the statute, and consequently to what extent it remains in force in this state.</p> <p>7. Slander — Charge of Unchastity Actionable without Alleging Special Damages. The rule of the common law referred to in paragraph 4 is not a part of the law of .this state, and spoken words imputing unchastity to a female are actionable without allegation or proof of speéial damages.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Compromise Tax Deed — Consideration—Payment of Subsequent Taxes. A compromise tax deed over five years old is not rendered void by a recital that the taxes subsequent to the assignment of the certificate were paid by the purchaser, no amount being named, when no taxes due at the time of the compromise are shown to have been excepted from its operation and no new taxes accrued between such assignment and the execution of the deed, and the consideratibn recited in the granting clause is the amount for which the certificate was issued.</p> <p>2. -Recital that Land Sold at Tax Sale Has Not Been Redeemed. The statutory requirement that a tax deed shall recite that the land sold at tax sale has not been redeemed therefrom is sufficiently fulfilled by a recital that the owner has not offered to redeem it, the word “owner” in this connection, as in the statute relating to redemption, including any one who has a substantial interest in the property.</p> <p>3. -Interest — Competitive Bidding by County — Consideration. Other objections to a tax deed examined and held not to be fatal.</p> <p>4. Words and Phrases — “Prevails”—Agreed Statement of Facts —Dismissal without Prejudice — Judgment by Consent. A stipulation that an action shall be submitted upon an agreed statement of facts and that if the defendant “prevails” a certain judgment shall be rendered does not prevent the plaintiff from causing a dismissal without prejudice, in which case the defendant will not have “prevailed” within the meaning of the stipulation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Compromise Tax Deed — Recital of Consideration for Assignment — Departure from Statutory Form — Prima Faeie Evidence. A tax deed issued upon assignment of a tax-sale certificate, which assignment is made by the county clerk, pursuant to an order of the board of county commissioners, for a sum less than the legal taxes, interest and penalties upon the land, has “the same force and effect as if the full amount of all taxes, interest and penalties had been paid therefor.” (Gen. Stat. 1901, § 7672.) And the recital in the tax deed of facts which justify such assignment, in lieu of the recitals indicated in the form prescribed by section 7676 of the General Statutes of 1901 in case of full payment, is not a substantial departure from such form, but is substantially in the prescribed form, and the deed is prima facie evidence, as provided in section 7676.</p> <p>2. - Limitation of Actions. Such tax deed can not, in an action commenced more than five years after the recording thereof, and to which action the statute of limitations is pleaded as a defense, be avoided by proof of facts not appearing upon the face of the deed, except in cases where the taxes have been paid or the land redeemed as provided by section 7680 of the General Statutes of 1901.</p>

Moore, judge. STATEMENT. C. W. Parker is a manufacturer of tents, platforms, show fronts and other paraphernalia used in street fairs and carnivals. His place of business is at Abilene. He manufactured and leased to Raver & Darnaby a moving picture show for exhibition in a tent, entrance to which was by ascending steps to a platform, thence through a passage, and by descending steps about four feet to the ground inside the tent.

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Testimony Indicating Defendant’s Guilt and Implicating Him in Another Crime. It is not error to permit the county attorney in a criminal prosecution to state to the jury facts which tend to establish the guilt of the defendant of the crime charged because such facts tend to show that he is also guilty of another and different offense.</p> <p>2. - Same. It is not error to permit the state in a criminal prosecution to produce testimony which is relevant and material in establishing the defendant’s guilt of the crime charged because it also tends to establish his guilt of another and different offense.</p> <p>3. - Statutory Rape Defined. Sexual intercourse with a female less than eighteen years of age constitutes rape as defined by section 2016 of the General Statutes of 1901, whether it is accomplished by force or with consent.</p> <p>4. - Statutory Rape — Information — Immaterial Allegations — Variance. In a prosecution for such a crime, where the offense has been committed with the consent of the female and under a promise of marriage, and the information charges that the defendant “did then and there unlawfully, willfully and feloniously make an assault in and upon one Minnie Warrell . . . and in the manner and form aforesaid commit, the crime of rape,” the language of such information importing the use of force and violence is immaterial and surplusage; and the omission to prove such alleged force and violence upon the trial will not constitute a fatal variance between the allegations of the information and the proof.</p> <p>5. -Instructions. It is not error for the court to refuse to^ give an instruction requested when the charge given covers, the point mentioned in the instruction requested.</p>

Stuart, judge. STATEMENT. Noah Hanson died in the year 1899, leaving a will by which he devised his real estate to his son Oscar, and bequeathed money to his other children, but gave nothing to his wife, who, however, consented to the will in writing, executed in the presence of two witnesses. The will was admitted to probate, but the widow was not required to, and did not, elect whether to take under the law or under the will. She died intestate in the year 1907'.

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

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

<p>Appeal from Pratt district court; Preston B. Gillett, judge.</p>

<p>Appeal from Wyandotte court of common pleas; Lewis C. True, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages&emdash;Liability of a City&emdash;Repeal of Franchise Ordinance. A city is not liable in damages for the repeal of a street-railway-franchise ordinance which does not engage the city in any private proprietary capacity, nor for the conduct of its officers in publishing and subsequently enforcing the repealing ordinance.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Pleadings — Action ex Contractu or ex Delicto — Election of Remedies. Under our code (§ 10) all distinctive forms of civil actions are abolished, and in a civil action which may be. founded upon either contract or tort the plaintiff is not required to state upon which he relies as the basis of the action; and, generally, if he should make such a statement and be mistaken the statement would be immaterial. All that a plaintiff is now required to do is to state the facts constituting his cause of action, in ordinary and concise language, and without repetition. (Akin v. Davis, 11 Kan. 580; Code 1909, § 92.)</p>

Clark, judge. STATEMENT. ON the 9th day of October, 189,7, James Needham recovered a judgment against Angelí Matthewson for $1402. After its rendition Matthewson filed in the United States district court for the district of Kansas his petition in voluntary bankruptcy, and on the 30th day of August, 1899, was discharged from all debts and claims provable against him. No execution was ever issued on the judgment, and it became dormant in 1903.

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Deeds — Description of Boundaries — Parol Evidence. Where one of the boundaries in the description contained in a deed of conveyance is doubtful and ambiguous, parol evidence of the actual physical location of the boundary by the parties while the negotiations for the conveyance were in progress is competent to aid in the interpretation of the instrument.</p> <p>2. Statute op Frauds — Oral Agreement Establishing Boundary. The rule giving effect to a parol agreement establishing the boundary-line between adjoining tracts of land stated in Steinhilber v. Holmes, 68 Kan. 607, is followed.</p>

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

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Costs. An action was commenced before a justice of the peace in which the plaintiff claimed judgment upon each of two separate and distinct causes of action, growing out of two separate and distinct transactions, one for $30 and the other for $195. The action was commenced August 2, 1907; the claims were each due August 1, -1907. ' When the case was set for trial, August 9, 1907, the defendant by answer admitted liability for the $30 and paid 'the money into court, which the plaintiff did not accept. The defendant pleaded payment as to the other item, and a trial was had thereon, in which the defendant was defeated. An appeal was taken to the district court, where a trial was had upon the same item only, and the plaintiff was defeated. By direction of the court the jury returned a verdict in favor of the plaintiff for the uncontested item of $30, with interest from August 1, 1907. The interest on the $30 from August 1 to August 9 amounted to less than 5 cents, and it was not included in the payment. The plaintiff insisted that because of this difference between the payment and the recovery all the costs should be taxed to the defendant. The court rendered judgment on this item for the plaintiff, including interest from August 1, 1907, according to the verdict, and taxed the costs which accrued prior to August 9, when the $30 was paid into court, to' the defendant and the remainder to the plaintiff. Held, not error.</p> <p>2. -Instructions. Where the evidence upon a material fact is circumstantial and conflicting it is not error for the court to refuse an instruction which selects part of such evidence and gives it undue prominence and importance, to the exclusion of other evidence equally material.</p>

Swarts, judge. STATEMENT. The plaintiff, a fireman, slipped from the steps of his engine as he was going down to turn a switch. His left leg was caught under the wheels of the engine and crushed so as to require amputation. He alleged that the cause of his injury was a coating of ice upon the step, caused by a leak in the tank hose. On the evening of December 12 the plaintiff and the engineer of this locomotive had taken it to the roundhouse at La Junta.

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

<p>Appeal from Clark district court; Gordon L. Finley, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Inadequate Award — Inconsistent With Ver diet for Plaintiff — Action for Labor. In an action to recover the value of personal services it was not disputed that services of substantial value were rendered, but it was claimed by the defendant that they were to be gratuitous. On this issue the evidence was conflicting, and the jury returned a verdict for the plaintiff, assessing his damages at $1. Held, that the verdict is inconsistent, and that it should have been set aside on the plaintiff’s motion, based upon the ground that the recovery was too small.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Mistake in Ticket Sold — Refusal of Passenger to Pay Another Fare-^-Ejection — Damages. A passenger was sold a ticket by a railway company for which he paid full fare and on which was printed, “One continuous passage commencing within one day from date on back hereof. Madison to Kansas City. Void unless officially dated,” but the agent of the company by mistake perforated the ticket with a date prior to the purchase. The ticket was accepted by the first conductor to whom it was presented, but the second conductor, observing the expired date, rejected the ticket, and the passenger, declining to pay another fare, was compelled to leave the train some distance from the station, when he walked back, boarded another train, paid an additional fare and completed his journey. The passenger brought an action to recover damages for the loss and injury sustained, and produced testimony tending to prove the recited facts. Held, that the ruling of the court sustaining a demurrer to his evidence was erroneous; that the error in perforating the ticket was the fault of the railway company; that the passenger, having paid his fare, was entitled to a ride to his destination; that he was entitled to damages for the extra fare he was required to pay and any actual loss arising from the refusal of the ride for which he had paid and from being compelled to leave the train. Held, further, that he could not enhance his damages by resisting the order of the conductor to leave the train, nor because of the force used in ejecting him by reason of his refusal to obey the order.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Foreign Corporations — Permission to do Business — Subse- . quent Legislation Not Applicable. Where a foreign corporation complies with the terms of a statute providing that upon performing certain conditions it shall possess in this state all the rights, privileges and franchises conferred by law upon a domestic corporation, it will not be deemed to be within the purview of a subsequent enactment requiring foreign corporations seeking to do business in the state to make application to a charter board for permission to do so, this requirement not being exacted of domestic corporations already formed.</p> <p>2. - Fees — Increase of Capital .Stock — “Authorized” Capital. The statutes (Gen. Stat. 1901, §1265; Laws 1907, ch. 140, §23) requiring the payment of certain fees upon the increase of the capital stock of a corporation doing business in this state refer to an increase in the authorized capital, and such fees are payable whenever there is an increase in the power of the corporation to issue stock in addition to the amount of its original capitalization, regardless of whether any part of the new stock is actually issued or subscribed for.</p> <p>3. - Increase of Stock a Question of Fact under the Pleadings. A pleading which denies that a corporation organized under the laws of another state has increased, its capital stock unless that result follows from certain facts stated, which do not include the filing of any certificate of increase with the secretary of state of such other state, in effect denies the filing of such certificate and thereby puts the question of such increase in issue.</p> <p>4. —;- Liability for Fees Not Affected by Failure to File Certificate in this State. The fact that the statute provides .that the fee exacted when the capital stock of a corporation doing business in this state is increased shall be paid at the time the certificate of such increase is filed with the secretary of state of Kansas does not enable a foreign corporation, which has effected a valid increase in its capital, to defeat or postpone the right of the state to exact such payment by omitting to file such certificate.</p>

<p>Appeal from Pawnee district court; Charles E. Lobdell, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Guaranteeing Payment of Bank Deposits. The provisions of section 1 of chapter 159 of the Laws of 1905, relating to the incorporation of surety, fidelity and guaranty companies, is by necessary inference applicable to the incorporation of companies organized in this state for the purpose of guaranteeing the payment of deposits in state and national banks.</p> <p>2. - Certificate of Authority to do Business from the Superintendent of Insurance. All of the steps to be taken and all the requirements to be met to entitle a company which has been granted a charter by the charter board of the state for such purpose to obtain a certificate of authority to do business in this state are prescribed in section 3 of the above act, and in sections 3419, 3420, 3421 and 3422 of the General Statutes of 1901, which by reference in the act of 1905 are applicable in connection therewith.</p> <p>3. -Discretion of Superintendent to Impose other than Statutory Requirements. When the corporation organized for such purpose has complied with all the prerequisite statutory requirements it is the duty of the superintendent of insurance to furnish the company with a certificate of authority for it to commence the business proposed in the charter (Gen. Stat. 1901, § 3422), and such superintendent has no discretion to impose any other requirement as a condition precedent to the issuance of such certificate.</p>

<p>.SYLLABUS BY THE COURT.</p> <p>1. Remedy — Owner of Property Injured by Authorized Subway for a Car Line in Public Street. If the public officers who are charged with the control of such matters authorize a subway for a car line in a public street, an owner of abutting property, the value of which is thereby diminished, can not interfere to prevent its construction, however seriously he may be inconvenienced by it. In such case his only remedy, if any, is by an action for the consequential damages.</p> <p>2. Public Streets — Legislative Power Delegated to Railroad Commissioners — Street Railway — Subway Beneath Tracks of a Railroad. 'The legislature, having paramount authority over public streets, may authorize a street-car company which has by ordinance been granted a right to operate only a surface road to construct a subway beneath the tracks of a railroad. And it may devolve the power to permit and to require this upon the board of railroad commissioners.</p> <p>3. Board of Railroad Commissioners — Crossing of Railroad Track by Street-car Line. Under the statute (Laws 1907, ch. 267, §1; Gen. Stat. 1901, § 5974) „ giving the board of railroad commissioners power to determine whether there is a necessity for the crossing of a railroad track by a street-ear line, “and, if so, the place thereof, whether it shall be over or under the existing railroad, or at grade, and in other respects the manner of such crossing” (Gen. Stat. 1901, § 5974), the board can authorize the street-railway company to construct a subway in the street of a city beneath the tracks of a railroad company, in accordance with whatever regulations it may see fit to impose, so that they have relation to the safe operation of both roads and are not unreasonable.</p> <p>4. - Discretion — Conelusiveness of Board’s Determination. Unless the board acts arbitrarily or capriciously in such matters its determinations are conclusive.</p> <p>5. Parties — Mandamus. In a mandamus brought by the state to require a street-railway company to construct a subway beneath the tracks of a railroad the city is not a necessary party.</p> <p>6. Street Railways — Undergrade Crossing — Railroad Tracks— Mandamus — Railroad Commissioners. Where a street-railway company is operating a continuous line across a city, except for a break caused by a number of railroad tracks, over which its passengers are transferred, the board of railroad commissioners may require it to construct a crossing below grade.</p>

<p>Corporations — Liability of Stockholders. Holders of fully paid' up stock held not to be individually liable to the creditors of a corporation, in the absence of a statute creating such liability.</p>

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

<p>1. Election of Defenses — Pleading — Estoppel. One who pleaded certain alleged fraudulent acts as a defense was bound by his pleading and could not upon the trial avail himself of other facts not pleaded.</p> <p>2. Contracts — Fraud—Submission to the Jury. Where there was no proof that any of the.alleged fraudulent representations by the plaintiff was untrue, there was nothing to submit to the jury on that issue.</p> <p>S. .- Construction. Where the execution of a written contract was admitted it was not proper to submit to the jury the question what the contract was.</p>

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

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

<p>Cities — Annexation of Territory — Validity of Act — Right to Question. The validity of the act of a city in annexing territory was not open to collateral attack, and conld only be questioned by the state.</p>

<p>Appeal from Jefferson district court; Marshall Gephart, judge.</p>

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

<p>•SYLLABUS BY THE COURT.</p> <p>1. Constitutional Law — Conferral of Legislative and Judicial Powers on County Boards — Extension of Corporate' Boundaries. Section 1172 of the General Statutes of 1901, empowering county boards to hear and determine the application of a city of the third class for permission to extend its city limits, is not open to the objection that it violates the constitution of the state by conferring upon county boards legislative and judicial powers.</p> <p>2. - Separation of the Powers of Government■ — Intrinsic or Incidental Powers. The case of Nash v. Glen Elder, 74 Kan. 756, followed, and held, notwithstanding the power exercised by the county board in determining whether the proposed extension will cause manifest injury to individuals is so far judicial as to permit an appeal therefrom to the courts, it is not judicial power within the contemplation of the constitutional provisions for the separation of the powers of government.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. New Trial — Grounds—Review of Order — Record. On an appeal from an order granting a motion for a new trial, where the sole ground upon which the trial court based its ruling is held to be untenable, the appellant is entitled to a reversal unless the record affirmatively shows that the motion ought to have been sustained upon some other ground.</p> <p>2. Instructions — Party for Whom Verdict Was Rendered Not Prejudiced. Where an instruction is given that the plaintiff can not recover unless he has proved a certain fact, and a verdict is returned in his favor, he can not complain of the giving of the instruction, for the result shows that he suffered no prejudice from it; and he can not complain of the failure of the jury to be governed by it, for the error in that respect, if any, is in his favor.</p> <p>3. Pleadings — Amendment to Conform to Proof. Although ordinarily a pleading can not be amended after verdict to conform to proof that was admitted over objection, such an amendment may be allowed for the purpose of preventing the rendition of a final judgment against a party because of a defect in his pleading which has been supplied by his evidence.</p> <p>4. Sales — Delay in Delivery — Damages—Demurrer to Petition. In an action against the seller of harvesting machinery for failure to deliver it with promptness, grounds for the recovery of special damages are sufficiently shown, as against a demurrer, by allegations in the petition that at the time the order for the machinery was given and accepted it was understood between the parties that it was intended for use in-cutting a particular field of wheat; that both knew that delay in delivery would result in loss to the buyer because of the ripening and shelling of the wheat; and that such result actually followed.</p>

<p>Appeal from Wilson district court; James W. Finley, judge.</p>

<p>Appeal from Finney district court; William H. Thompson, judge.</p>

<p>Appeal from Clark district court; Gordon L. Finley, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Trouble and Inconvenience — Married Woman — ■ . Delay in Delivering a Telegram. Where a telegram to a married woman living with her, husband, announcing the death of a relative, is negligently delivered two days late and with the date changed so that it seems to have been just sent, thereby causing her to make a fruitless journey in an effort to attend the funeral, she is entitled to compensation for her trouble and inconvenience, although she loses no time excepting such as would otherwise have been devoted to the service of her husband, and he pays all the expenses incurred.</p> <p>2. —-- Amount of Award — Element Improperly Included— Proper Element Omitted. In such a case, where the compensatory damages are necessarily small but the circumstances justify a considerable award of smart money, and the jury make a total award in round numbers, the verdict will not be disturbed on account of the inclusion of a small sum for loss of time which was inadmissible on that account but might. properly have been allowed for trouble and inconvenience.</p> <p>S. -Parties Entitled to Recover — Agency—Husband and Wife. Where a telegram is sent to a married woman, and by . reason of a delay in its delivery and a change in its date she makes an unnecessary journey, she is entitled to recover the charges made for sending it, for which the sender has been reimbursed, and for delivering it, although these amounts were paid for her by her husband at her request.</p> <p>4. -Exemplary. The facts of the case held to authorize the award of punitive damages. ’</p>

<p>Appeal from Neosho district court; James W. Finley, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Watercourses — Source of Supply — Continuity of the Flow of' Water. It is not essential to the existence of a natural watercourse that the source of supply should be living water. It may be surface water collected on a large watershed from, rains and melted snows which concentrates and cuts for itself a well-defined channel and regularly discharges through, such outlet. Nor is it essential that there should be a con-. , stant and continuous flow of water. The supply is sufficiently-permanent where, as in this case, the water is concentrated and flows with some regularity during the heavy rains which, ordinarily occur in the region.</p>

<p>Appeal from Barber district court; Preston B. Gillett, judge.</p>

<p>Appeal from Pawnee district court; Charles E. Lobdell, judge.</p>

<p>Appeal from Wilson district court; James W. Finley, judge.</p>

Aikman, judge. STATEMENT. This action was to quiet title and to cancel á contract purporting to have been made by the plaintiff’s agent with the defendant for the exchange of the plaintiff’s land in Butler county for land in Gray county, on the ground that the execution thereof was not authorized; also, to cancel a deed purporting to convey the land, on the grounds that it had not been delivered and was without consideration.

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

<p>SYLLABUS BY THE COURT.</p> <p>Malicious Prosecution — Advice of Counsel — Direction of Verdict. In an action for malicious prosecution, where the defense is mainly based upon the advice of counsel, it is error to direct a verdict for the defendant if the evidence shows that a substantial question of fact was presented whether he had stated to counsel, whose advice he relied upon, all the material facts known to him.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Guardian and Ward — Termination of the Relation. The arrival of a ward at majority terminates the guardianship, except for the purposes of accounting and settlement with the ward.</p> <p>2. Parties — Action on a Contract — Trustee. One to whom a contract right has been transferred may bring and maintain an action thereon, although he may have no beneficial interest in the same.</p> <p>3. -Real Party in Interest. The defendant has a right to insist that an action against him shall be brought by the real party in interest, as the statute provides, but the purpose of the statute has been attained if the defendant is not shut out from defenses and counterclaims and will be fully protected by the judgment from any further liability on the same cause.</p> <p>4. -- Transfer by Beneficiary of Right to Maintain Action. Under the testimony in this case it is held that the one holding the beneficial interest in the claim sued on had vested the plaintiff with the right to bring the action, and that the beneficiary was as fully estopped by the judgment as if she had been a party to the action.</p> <p>5. Practice, Supreme Court — Technical Errors. Harmless error does not justify the reversal of a judgment.</p> <p>6. -Findings and Judgment — Evidence. The testimony in the case examined and held to be sufficient to sustain the findings and judgment.</p>

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

<p>Appeal from Clark district court; Gordon L. Finley, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Injunction — Prosecution of Action in Another State to Try Issues in Pending Suit — Jurisdiction. In an action by one claiming to be a widow, for the partition of land owned by her husband at the time of his death, the defendant, a daughter of the deceased, alleged that she was his sole heir; that the plaintiff had no interest in the land; that at the time of the pretended marriage of the plaintiff with the deceased she had a husband living, from whom she had not been divorced; and that an antenuptial agreement had been made excluding her from any interest in thp lands of the deceased. The defendant prayed for judgment quieting title. Issues were duly made upon these allegations, upon which considerable evidence was taken. Afterward the defendant commenced an action in Colorado against the plaintiff here to quiet title to land in that. state also owned by the deceased at the time of his death. In her petition the plaintiff in that action (defendant here) made the same allegations and tendered the same issues that were made and tendered in the action here. All the parties are residents of the county where the action in this state is pending, and are properly impleaded therein. It is held: (1) That the district court had jurisdiction to restrain the defendant, until further orders from prosecuting the suit in Colorado and from bringing actions in other states where other land of the deceased is situated to try the same questions so in controversy here; and (2) that upon the facts presented in the record an injunction was properly allowed.</p>

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

statement. In July, 1857, the Manhattan Town Site Association located and platted the site of the city of Manhattan, embracing about 1280 acres. At several places on the town site blocks were left not divided into lots, one of which was marked “Market Square,” one “Schoolhouse Square,” and one simply “Square.” The latter is in the first ward and is the one concerning which this action is brought.

<p>SYLLABUS BY THE COURT.</p> <p>Contracts — Mineral Lease — Construction — Forfeiture — Insufficient Development — Remedy in Damages Inadequate. An oil-and-gas lease reciting a consideration of $1 gave to the lessee the exclusive right to enter upon, operate for and procure oil and gas from 179 acres of land situated in the gas belt. The lease provided that if a well was not drilled on the premises within one year the lessee’s right should cease. No alternative in payment of rent was given. The plaintiffs were to have gas for domestic use, if found in quantity sufficient to justify the expense of marketing, and were to be paid $50 per year during the time gas should be marketed from each producing well. One well was completed within the year, yielding gas sufficient for marketing as provided; the plaintiffs drew a supply therefrom for domestic use, and the defendant also used it for fuel to furnish power in drilling two wells on other leases. No other use was made of the well; gas was not sold or marketed from it; no other wells were drilled; and the lessors never received anything except the $1 and gas for their home. Several other gas wells were drilled on adjacent lands by the defendant and by other parties, from some of which gas has been and is being marketed. More than four years after this well was completed the lessors served notice of forfeiture and commenced an action to cancel the lease. It is held: (1) That the contract contemplated that the well should be operated and gas marketed therefrom in a reasonable time, and that other wells should be drilled and operated with reasonable diligence to utilize the lease. (2) That four years’ delay, in the circumstances shown, was unreasonable. (3) That the lessors have no adequate remedy in damages, and the lease should be terminated.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgages — Possession by Mortgagee. It is not necessary to the status of a mortgagee in possession that possession of the land shall have been taken under the mortgage, nor with the consent of the mortgagor.</p> <p>2. - Same. It is enough that possession be peaceably and legally taken, and one who first takes possession under an invalid tax deed and afterward purchases a subsisting mortgage is not precluded from thereafter continuing the possession first taken and claiming the rights of a mortgagee in possession.</p> <p>3. - Action, by Mortgagee in Possession to Compel Redemption. A mortgagee in possession may bring an action against the mortgagor or one holding under him to compel him to redeem within a reasonable time, to be fixed by the court, and the court may provide in its decree that if he fails to do so his right of redemption shall be barred. (Henthorn v. 'Security Co., 70 Kan. 808.)</p> <p>4. Evidence — Sufficiency. A fact may be established by incompetent evidence, if material, where it is received without objection.</p>

<p>Appeal from Finney district court; William H. Thompson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Injury to a Minor Who Procured Employment by Misrepresentation. The fact that a brakeman obtained his position by falsely stating that he was of full age when he was in fact but eighteen years old (a rule of the company forbidding the employment of minors in that capacity) does not relieve the company from its obligation to exercise the same care for his protection that is due to any other employee, or disentitle him to recover for an injury due to the want of such care and not occasioned by his minority or immaturity. '</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Suretyship — Contribution—Bond in a Judicial Proceeding. A mere surety on a bond in a judicial proceeding is not liable for contribution to reimburse a party to the action for whose benefit the bond was given in whole or in part, the latter having paid the full amount of a judgment rendered on such bond.</p> <p>2. Judgments — Failure of Prevailing Party to Sustain Burden of Proof. On the trial of a case it is error for the court to render judgment in favor of the plaintiff upon any issue as to which the burden of proof rests upon him and as to which he has offered no evidence.</p>

<p>Schools — Distribution of Pupils — Discretion of Board. Mandamus to allow colored school children to attend a public school other than one designated for their use refused upon the ground that the allegations that such school is unsuitable are not sustained by the findings of the commissioner appointed to take evidence on the subject.</p>

<p>Payments on a Note — Indorsements. The evidence held to support a finding that payments had been made upon a promissory note other than those shown by the indorsements.</p>

<p>1. Damages — Injunction—Bond Issue — Interest. Under the circumstances it was proper to allow the plaintiff, interest on money borrowed during the time it was deprived of municipal bonds the issuance of which was enjoined.</p> <p>2. -Depreciation in Value of Bonds. A claim that damages for the depreciation in value of bonds pending a suit to enjoin their sale were remote and speculative not sustained.</p>

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

<p>Railroads — Injury to Stock at a Crossing — Negligence of Engineer. A judgment against a railroad company for stock killed at a highway crossing sustained on the ground that the engineer, in the exercise of reasonable diligence, ought to have seen the animals before they reached the track and brought his train under control' in anticipation of their attempting to cross the track.</p>

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

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

<p>Habeas Corpus — Commitment for Contempt. The petitioner haying been committed to jail for his refusal to answer certain questions when called as a witness, it was held that his application for release on the ground that his testimony has become immaterial' should he addressed to the court committing him, and that the supreme court would not inquire into that matter on habeas corpus.</p>

<p>Original proceeding in quo warranto.</p> <p>Judgment restraining the defendant from doing certain acts.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deed — Finding that Purchaser Paid Taxes as Agent Supported by Evidence. In this case it is held the evidence justifies a finding that a man who took a tax-sale certificate and tax deed of a tract of land and afterward continued to pay-taxes did so as the agent and for the benefit and protection of the owner, who was insane; and that he took that method of paying the owner’s taxes on the one hand and of protecting his advancement on the other.</p> <p>2. --Proof of Agency — Admissibility against Grantee’s Heirs — Authority of Agent — Ratification by Heirs of Landowner. In such a case the agency of the grantee in the tax deed may be proved against his heirs claiming title by his conduct and by circumstances.' It is not necessary that he should’ have been formally appointed as agent; he may have intervened! voluntarily and may have used his own funds; and the heir® of the landowner, who because of her insanity- was incapable of expressing recognition of the agency'while she was alive,, may accept and adopt the services rendered.</p> <p>3. Evidence — Book Required by Law to be Kept — County Treasurer’s Tax-receipt Book. The statutes require the county treasurer to keep a just and true account of all moneys received by him, and whenever he receives any tax to give a receipt therefor. They do not prescribe the kinds of account books he shall keep. Held, that any book essential or convenient for the purpose will suffice, and any such book officially adopted and used falls within the requirement of the law. Held, further, 'that a tax-receipt stub book which is a part of the records in the treasurer’s office and which shows payments of taxes, the amounts of such payments, the years for which they were made and the persons for whom and by whom they were made is admissible in evidence as a book required by law to be kept.</p> <p>4. Title — Resulting Trust — Heirs of Agent — Lien for Taxes. The heirs of the agent referred to in paragraph 1 inherit no better title than he possessed, which is a naked legal title with a lien for taxes; and such title will be held in trust for the successors in interest of the principal, subject only to the lien.</p> <p>5. Purchaser Pendente Lite — Agreement to Defend Pending Suit — Innocent Purchaser — Recording Act. The heirs of the principal referred to brought suit against the heirs of the tax-deed holder for possession and partition, claiming the tax deed was void. A vendee then acquired the tax title by a quitclaim deed and a guardian’s deed, subject to the pending suit, which he agreed to defend. Held, he took no better title than his vendors enjoyed and was not an innocent purchaser under the recording act.</p> <p>6. Estoppel — Amendment of Petition after Substitution of Purchaser as Defendant. After the vendee purchased he was substituted for his vendors in the pending suit. The plaintiffs then enlarged the issues by alleging the grantee in the tax deed acted as the agent of the insane landowner. Held, the plaintiffs were not estopped in equity from introducing the new issue.</p> <p>T. Actions and Remedies — Laches. Laches is an equitable bar to relief depending on all the circumstances of the case, and except in instances of clear error the judgment of the trial court denying its effectiveness will not be disturbed.</p> <p>8. - Same. Under the circumstances of this case it is held that neither equity nor public policy absolutely forbade the court to investigate the plaintiffs’ cause of action, and the substituted defendant, who purchased after the suit was commenced, with full knowledge of its pendency and purpose, and under an agreement to defend it, has no special standing in equity to complain that the plaintiffs were dilatory in starting proceedings or that the cause was heard and decided on its merits.</p>

<p>Appeal from Jackson district court; Marshall Gephart, judge.</p>

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

Lobdell, judge. STATEMENT. This action was commenced in the district court of Rush county by Albert Irvin to recover from the Missouri Pacific Railway Company damages for a personal injury received by the plaintiff at the station of Mc-Cracken, on the defendant’s railway in Rush county, on account of the negligence of the defendant. The plaintiff lived at McCracken, and went to the station about the time the train arrived.

<p>SYLLABUS BY THE COURT.</p> <p>1. Jury Trial — Equitable Proceeding — Title to Beal Estate. In an action to foreclose a real-estate mortgage one of the defendants filed a cross-petition, in which it claimed to have a paramount lien upon the mortgaged premises. Another defendant filed an answer to the cross-petition, in which he denied the validity of the cross-petitioner’s lien and claimed to toe the owner of the land. The plaintiff thereupon dismissed his petition, and upon the request of the cross-petitioner the trial proceeded upon the issues made between the cross-petition and the answer thereto. The answering defendant demanded a jury, which was denied; but a jury was called, to which was submitted the controlling question in the controversy. A special verdict was received and a judgment entered thereon in favor of the cross-petitioner. Held, not error.</p> <p>2. -Liens — Judgment—Petition—Demurrer. . The cross-petition in this case examined and held to state a cause of action as against a demurrer.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Homesteads — Statute of Descents and Distributions Not in Conflict with Constitutional Provision. Sections 5 and 6 of the statute of descents and distributions (Gen. Stat. 1901, §§2507, 2508), providing for the distribution of the homestead of an intestate, are not in conflict with the provision- of section 9 of article 15 of the constitution exempting the homestead from forced sale under any process of law. -</p> <p>2. - Construction of Homestead Laws. The homestead laws embrace not only the constitutional provision (art. 15, § 9) but also the provisions with reference to the homestead in the statute of descents and distributions (Gen. Stat. 1901, ch. 33) and the statute of exemption's (Gen. Stat. 1901, ch. 38).</p> <p>3. -- Partition — “Forced Sale.” The sale of a homestead in partition under-the provisions of section 6 of the statute, of descents and distributions (Gen, Stat. 1901, § 2508) is not a “forced sale” within the meaning of that term as used in section 9 of article 15 of the constitution.</p> <p>4. --- Legislative Powers Respecting Homestead Right. While the legislature is without power to enact a- law limiting or restricting the homestead right guaranteed by section 9 of article 15 of the constitution, it has the power to enact laws which in effect add to or increase the exemptions provided by the constitution.</p>

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

<p>Appeal from Morton district court; William H. Thompson, judge.</p>

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

<p>Appeal from Kearny district court; William H. Thompson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>I. Counties — Liability for Costs — Judgment—Fees. In actions or proceedings prosecuted by the state, to which the county is not a party, the taxation of costs and the formal entry of judgment therefor against the county does not establish the liability of the county for the fees of an officer alleged to have been included in the aggregate sum stated in the entry as the amount of the recovery.</p> <p>2. -Judgment for Costs — Submission of Claim to County Auditor. A judgment against a county having* county auditor is a claim to be examined and passed upon by that officer. A suit can not be maintained against the board of county commissioners on such a claim until the decision of the auditor thereon.</p> <p>3. - Costs. Questions involving the recovery of costs against a county are considered.</p>

<p>Appeal from Neosho district court; James W. Finley, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Corporations — Transfer of Assets to Another Corporation— Rights of Creditors. Where one corporation becomes practically extinct, transferring- all its assets to another and receiving- in return stock in the other corporation, which succeeds to its business, the new corporation is liable, to the extent of the value of the property acquired, for the debts of the old one.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Insurance — Representations by the Applicant — Waiver—Authority of Agent. An agent for an accident-insurance corporation who has authority to solicit insurance, take applications, and countersign and issue policies therefor, binds the company by any waiver of any representation in the application which is within the ordinary scope of insurance business and not known by the assured to be outside of the authority granted to the agent.</p> <p>2. -Presumptions — Waiver—Notice to Principal. When an applicant for insurance tells such an agent facts which are contradictory to statements contained in the application, which application the agent procured the applicant to sign knowing that he had not read the same and that his attention had not been called to such statements, the agent may and will be presumed to have waived the statements in the printed application on behalf of the company, and the company will be presumed to have known all the facts communicated to such agent during the transaction and relating thereto; and this notwithstanding the application contains a restriction upon the authority of the agent to make such waiver, the applicant being ignorant of such restriction, at least until after the policy was issued and securities were taken for the payment of the premium.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Vacation op Judgment — Perjury. False swearing or perjury alone is not ground for vacating a judgment under the provisions of section 570 of the code of civil procedure. (Gen. Stat. 1901, § 5056.)</p> <p>2. - Fraud Must be Extrinsic or Collateral to the Issue Involved. The fraud which will authorize a court to vacate a judgment in an action brought for that purpose under section 570 of the code of civil procedure must be extrinsic or collateral to the matter involved in the former action, and sufficient to justify the conclusion that but for such fraud the result would have been different.</p> <p>3. - Fraud — Petition Demurrable. In an action to vacate a judgment for fraud of the successful party a petition fails to state a cause of action where it relies solely upon the ground that the judgment was obtained upon false or perjured testimony and shows that the issue to which the alleged false testimony relates was raised by the pleadings and was tried out upon a conflict of testimony, the truth or falsity of which was necessarily determined in the former action.</p> <p>4. -Audita Querela — Code Remedy. While the common-law writ of audita querela has become obsolete, the remedy still exists in a proper case, either by motion or petition, under sections 568 and 570 of the code of civil procedure. (Gen. Stat. 1901, §§ 5054, 5056.)</p>

<p>Appeal from Comanche district court; Gordon L. Finley, judge.</p>

<p>Appeal from Cowley district court; Oliver P. Fuller, judge pro tem.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deeds —■ Outstanding Titles, Liens or Interests Extinguished. A tax deed good on its face, which has been of record more than five years, during which time the purchaser has had actual possession of the land conveyed, vests in him an absolute title, which extinguishes and destroys all titles, liens or interests existing when the tax proceedings were had upon which the tax deed is founded.</p> <p>2. -Defense to Mortgage Foreclosure — Prayer to Have Title Quieted — Validity of Tax Proceedings Not Beviewable. Where a proceeding is brought to foreclose an extinguished mortgage lien and the holder of the tax deed mentioned is made a defendant and answers setting up his title under the tax deed, the fact that he asks to have his title quieted as against the plaintiff will not justify the court in setting aside his tax deed for irregularities in the tax proceedings nor in adjudging that the land shall be sold to satisfy such mortgage lien.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Estoppel — Election of Remedies — Res Judicata. A party claiming title brought ejectment to recover a tract of land from the grantee of a purchaser at a sheriff’s sale. A mortgagee of the claimant was made a party. In a cross-petition he pleaded that he purchased the j'udgment under which the sheriff’s sale was made to protect his mortgage, attacked the sheriff’s sale and deed as utterly void, and prayed that he be given a mortgage lien on the land as the property of the ■claimant. After a trial the claimant and the mortgagee were defeated, the sheriff’s sale and deed were sustained, and on appeal to this court the judgment was affirmed. The mortgagee and owner of the judgment then sued the successful defendant in the first action for the land, asking that the title conveyed by the sheriff’s deed be decreed to be held in trust for him. The cause was submitted on the pleadings, evidence, judgment and other proceedings in the first case. Held, the relief prayed for is doubly barred, because incompatible with the course elected in the former suit, and because the matter is res judicata.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Instructions — Exceptions Not Sufficiently Specific. Where instructions are given to a jury in numerous paragraphs involving several propositions, and the only exception to any or the whole of such instructions is the following: “To each and every instruction given by the court to the jury adverse to the defendant, and to each and every part thereof, and to the instructions as a whole, the defendant at the time duly excepted and excepts”; held, that this exception amounts only to a general exception, and is insufficient to challenge the attention to any specific paragraph, and insufficient to bring to the consideration of this court any separate paragraph, and will not avail as an exception unless the whole charge is erroneous or unless the charge in its general scope or meaning is erroneous.</p> <p>2. Negligence — Failure to Furnish Safe Place to Work — Personal Injury — Employee—Independent Contractor. Where the owner of a building contracts with another to make therein condensers and tiling, at a stipulated price per hundred for the condensers made and a stipulated price per hundred pounds for tiling made, the owner to furnish the building, machinery, tools, molds and all material for the making of such articles, which are to be made according to the specifications of the owner, the other party to the contract to do the work and employ such assistants as he may need, to be paid by him out of such gross price, but to have no control over the building or place where the work is to be done, held, that the owner is responsible to the next of kin if the building is blown up and the life of the contractor is lost through the negligence of the owner, and this whether the deceased be regarded as having been an independent contractor or an employee of the owner.</p>

<p>Appeal from Stanton district court; William H. Thompson, judge.</p>

STATEMENT. This action was commenced by the appellee in the district court of Allen county on the 19th day of August, 1907, to recover money for the value of services rendered by him for the cement company. The petition contains three causes of action.

Fischer, judge. STATEMENT. This action was brought by M. J. Cunningham to recover from the executors of L. D. Stoekon, deceased, money advanced by Cunningham on a lease dated July 1, 1905, under which Stoekon agreed to erect a theater of a size and quality described and let it to Cunningham for a term of five years, beginning at the completion of the building.

<p>SYLLABUS BY THE COURT.</p> <p>Deeds — Quitclaim—Consideration—Prior Unrecorded Deed by Same Grantor. In order for the grantee in a quitclaim deed to take advantage of the statute requiring conveyances of real ■estate to be recorded, and thereby to defeat the title held under an earlier unrecorded deed executed by the same grantor, he must have paid a valuable consideration therefor, and the payment of a merely nominal amount will not meet this requirement.</p>

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

Dana, judge. STATEMENT. On June 27, 1908, the appellees commenced this action in the district court of Shawnee county, Kansas, against the appellants, taxing officers, to enjoin and restrain the appellants from levying and collecting taxes on lots 2.6, 28 and the west 21% feet of lot 30, on West Eighth avenue, in the city of Topeka, alleging that the plaintiffs are the council of administration of the Most Worshipful Grand Lodge of Ancient, Free and Accepted Masons of…

Thompson, judge. STATEMENT. The action is upon a written agreement whereby King Brothers ordered from the Perfection Block Machine Company a machine and attachments to be manufactured, delivered, set up, and put in operation at Garden City for making concrete building blocks, as described in the catalogue of that company.

<p>SYLLABUS BY THE COURT.</p> <p>1. Adverse Possession — Grantor — Presumption. The possession of a grantor of land after conveyance is not considered to be adverse to his grantee in whom he has vested entire title to the premises, and can not be so regarded until the grantor explicitly renounces the title of the grantee or positively asserts a claim of title in himself which is brought to the attention of the grantee.</p> <p>2. Ejectment — Remedy — Land Used for Railroad Right of Way without Objection. Where a railroad company builds a spur track on land owned by it and afterward sells the land on which the track is built, without reserving the right of way, and then continues to use and operate the track for a great many years for its own convenience, as well as for the benefit of the public, with the knowledge and acquiescence of the owner, such owner can not maintain an action of ejectment to evict the railroad company from the premises.</p> <p>3. Words and Phrases — “Public Use’’ — Spur Track of a Railroad. Whether the use of a spur of a railroad is public is not determined by its length nor the number of industries it may serve. If it is a part of a railroad system which the public may use on equal terms as of right, and is subject to government regulation, it is a public use, whether few or many are accommodated by its operation.</p>

<p>Appeal from Finney district court; William H. Thompson, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Words and Phrases —■ “Building” — Criminal Prosecution for Injuring. A dugout, or cave, thirteen feet long, ten feet wide and seven feet deep, mostly below the surface of the ground, covered with a roof and entered through a door made of lumber securely fastened to the structure, and used for the storage and preservation of victuals, vegetables and the like, is a building within the meaning of section 107 of the crimes act (Gen. Stat. 1901, §2100), which prohibits and punishes “every person who shall willfully, unlawfully and maliciously break, destroy or injure the door or window of any dwelling house, shop, store or other, house or building, . . . being the property of another.”</p>

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

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

Wilson, judge. STATEMENT. The appellant filed its petition in the district court of Sedgwick county against the board of county commissioners, county clerk and county treasurer of that county.

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

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

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

<p>Original proceeding for contempt.</p>

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

<p>Tax Deeds — Time of Issuance — Presumption. A tax deed more than five years old held good upon its face although it showed that it was executed more than four years after the sale on which it was based.</p>

<p>Judicial Sales — Purchase Price Not Unconscionably Inadequate. The evidence on which a sheriff’s sale was set aside held to show no ground therefor other than inadequacy of price, and that the price paid was not shown to have been uneonscionably inadequate.</p>

Fischer, judge. STATEMENT. This action was commenced in the district court of Wyandotte county by the Odd Fellows’ lodge to enjoin the county officers from collecting the taxes assessed against the property described in the petition, on the ground that the property was exempt from taxation by the provisions of section 2 of chapter 408 of the Laws of 1907.

<p>Appeal from Miami district court; Winfield H. Sheldon, judge.</p> <p>Statement of facts in first opinion (ante, p. 543) corrected.</p>

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

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

<p>Appeal from Finney district court; William H. Thompson, judge.</p>

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

<p>Appeal from Washington district court; William T. Dillon, judge.</p> <p>First opinion (ante, p. 442) modified.</p>

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

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

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