Volume 84 — Kansas Reports

<p>Appeal from Miami district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Quieting Title — Answer—Admission of Plaintiffs Title. In an action to quiet title, held, that the averments of the special answer so far modified the general denial as to admit without further proof that the plaintiff held the legal title .at the time the action was commenced.</p> <p>2. -Petition — Sufficient Statement - of Defendant’s Adverse Claim. In an action to quiet title, independent of the statute, a petition which states that the defendant claimed - an interest in the land by virtue of two tax deeds of a certain date, and that the deeds were wholly null and void and conveyed no title to the grantee therein, states generally the nature of the defendant’s .adverse claim.</p> <p>3. Petition — Testing Sufficiency by Demurrer to the Evidence. Where a petition in general terms states a cause of action, and the defendant answers and goes to trial, he can not by demurrer to the evidence question the sufficiency of the petition.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Judgments — Publication Service — Amendment of Proof of Publication on Motion to Vacate the Judgment. Pending the hearing of a motion to vacate a judgment rendered by default upon constructive service, the plaintiff by leave of the court filed amended proof of publication, showing that notice of the pendency of the action had been duly published for the required time, as provided by the civil code, although the proof' of publication originally filed and upon which the judgment, was entered showed that publication had not been made for the requisite time. It is held, that such amended proof was properly allowed, and due publication having been shown thereby the motion to vacate the judgment ought to have been denied.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Action to Set Aside a Will— Advisory Findings by a Jury — Findings by the Court — Instructions. In a suit to set aside a will questions were submitted to a jury and answers returned which were approved in part and changed and revised in part by the trial court, the findings as finally determined being sustained by portions of voluminous and conflicting evidence. Held, that such findings must be upheld, and that complaints concerning instructions are without avail unless leveled at those which show-that the court misapprehended the law applicable to the case- and which induced the findings.</p> <p>2. --- Consistency of Findings. Such findings, while seemingly inconsistent, being susceptible of reconciliation with one another and with the decree, are controlling.</p> <p>3. Wills — Mental Capacity — Insane Delusion. Mental capacity to understand and direct the terms of a will, made by a man eighty-six years of age to change a former will, is not inconsistent with an insane delusion causing such change.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Scope of Servant’s Employment — Liability of Master to Third Parties — Assault by Agent. A local manager of a telephone company demanded of an operator of the- company, who was about to quit the service, that she sign a voucher for the compensation due her, and when she refused to sign the voucher he violently assaulted and beat her. Held, in an action brought by her against the .telephone company to recover damages for the assault and resulting injuries, that the assault and use of force by the local manager to procure the signing of the voucher were not within the scope of his employment, and the telephone company was-therefore not liable for his wrongful acts.</p>

<p>Appeal from Finney district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Tax Deeds — Conveyance of Separate Tracts — Description of the Land. The case of Spicer v. Howe, 38 Kan. 465, holding that the expression “the real property last hereinbefore described” (p. 468), used in the granting part of a tax deed, included only one tract of several described in the deed, furnishes a rule of interpretation under the following conditions only: The last description must be that of a single tract which is segregated from the others and described wholly apart from them for some independent purpose, and no language must intervene between this description and the operative words of the grant which will extend the application of those words beyond that tract.</p> <p>2. - Same. In the- case of Cartwright v. Korman, 45 Kan. 515, three features of the deed considered were noted as indicating that all the lots described were conveyed. The lots were all sold to one person, they were all described together, and afterward they were spoken of together as “said property.”. But it is not necessary that all these features should be present in a tax deed to warrant the conclusion that all the land sold is conveyed by a grant of “the real property last .hereinbefore described.”-</p> <p>3. WORDS AND Phrases — “The Real Property Last Hereinbefore Described.” The expression “the real property last herein-before described” was inserted in the statutory form of tax deed to designate the property sold as distinguished from the property exposed to sale, when the successful bid is for a less quantity than the whole tract, and to avoid repeating the description of the property sold. Such expression will be deemed to refer to the property sold, unless language be used which diverts it beyond doubt from the whole to some specific portion of such property; and any doubt that the whole is conveyed is removed by collective references to all the property immediately preceding the grant. -</p>

STATEMENT. The plaintiffs alleged that Nils Nyberg in his lifetime was the husband of plaintiff Marie S. Walline and the father of plaintiff Axel Nyberg, and that he died in December, 1881, intestate, leaving his widow and child his only heirs at law; that before his death, in May, 1881, he purchased and became the owner in. fee simple of a quarter section of land in McPherson county, for which he agreed to pay $2700, and in payment of which he and his wife executed a first…

<p>Appeal from Neosho district court.</p>

<p>Appeal from Atchison district court.</p>

<p>SYLLABUS BY THE COURT,</p> <p>1. Trustee — Volunteer Agent — Grantee of Conveyance Procured by Misrepresentations — Beneficiary. One who procures an assignment of a school-land certificate and a quitclaim deed to be executed and delivered to himself, by inducing the grantor to believe that the instruments will be used to perfect the title of a third person claiming to be the owner of the land affected, becomes a trustee of whatever he acquired for the benefit of such third person. ■</p> <p>. 2. - Same. In such case it is not material that the fraudulent grantee acted voluntarily and used his own money; that he bore no previous fiduciary relation to, and practiced no deceit upon, the claimant of the land; that the grantor Was the only person deceived; that the grantor was not actively concerned in perfecting the claimant’s title and had no specific design to accomplish that end; that the fraudulent grantee made no promise to use the instruments in perfecting the claimant’s title; and that the claimant’s title was in fact voidable.</p> <p>•3. - Same. It would be unconscionable to allow an evildoer of this kind to reap any advantage from his machinations, and to prevent such a result equity gives the transaction the beneficial effect which the party who acted in good faith understood it would have.</p> <p>4. Petition — Issue Tendered Not Enlarged by Answer — After-acquired Title — --Supplemental Petition. A petition pleading a specific title as the foundation for relief is not enlarged by an amended answer which, besides pleading specific defenses, states in general terms that the plaintiff has no title; and in order to secure the benefit of a new title acquired subsequent to the institution of the suit the plaintiff should obtain leave to file a supplemental petition setting up such title.</p>

<p>Appeal from Wyandotte district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Deeds — Breach of Warranty — Encumbrances—Public Levee —Notice to Grantee. Where a portion of a tract of land is appropriated under the authority of chapter 69 of the General Statutes of 1909, and a levee is erected thereon to a sufficient height to dam up the surface water naturally flowing therefrom, which levee covers about fifteen acres of the land, and thereafter the land is sold to a purchaser who actually sees or has an opportunity to see the levee, and the owner of the land executes to him a deed with the usual covenants of warranty, with no exception referring to the levee, the purchaser has no cause of action against the seller for a breach of warranty by reason of such encumbrance.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Res Judicata — Action against Guardian of Insane Person. A judgment in an action against the guardian of an insane person quieting the title of the grantee in a guardian’s deed to lands described therein, which judgment remains in full force and effect, is a bar to an action by the guardian to set aside the deed on the ground that it was procured by fraud.</p> <p>'2. - Vacation — Fraud—Collateral Attack. The only fraud that can be relied upon to avoid a judgment in a collateral attack is fraud which inheres in the judgment and which affects the jurisdiction. (Bleakley v. Barclay, 76 Kan. 462.)</p>

<p>Appeal from Clay district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>JL. Master and Servant — Injury to Employee — Joint Undertaking. A contracted „ with B, a salt company, to erect an evaporator system, twenty-five per cent to be paid down, the remainder after its installation and meeting a required test; if not successful, to be removed at'A’s expense and the twenty-five per cent refunded; the apparatus to be placed on foundations furnished by B, all other labor.to be furnished by B. A was to put an expert in charge of the operation of the evaporator system until the test was successfully made. B employed appellee to take instructions from the expert so that he could learn how to operate the plant if accepted, •and he was introduced for that purpose to the expert, who for six days directed appellee what to do respecting the operation of the system, when, by the bursting of a boiler therein, appellee was injured. Held, that appellee was a servant of A, to whom A owed ordinary care.</p> <p>2. - Continuing Duty of the. Master — Inspection of Machinery. An instruction that it was the continuing duty of A to use ordinary care to provide appellee with a safe place in which to work and with safe machinery and appliances, and to make such inspection as a person of ordinary care would under like circumstances, .upheld, although it was testified on behalf of A that it was not customary to inspect boilers after they had been shipped by reputable manufacturers, except by pressure, as was done in this case.</p> <p>•'3. Evidence — Expert Testimony — Province of the Jury. A witness experienced in handling boilers was asked whether “after having examined the door of this boiler A, and the door after this accident, you can say from your knowledge and experience in the handling and using of. boilers if a man in the exércise of reasonable and ordinary precaution could have told this boiler was defective in any way?” to which an objection was sustained. Held, that the question did not call for expert evidence save in the slight degree furnished by the experience of witness in handling boilers, and the ruling was proper.</p> <p>4. Verdict and Findings — Consistency—Permanency of Injuries. The appellee, previously a workman in a mill, was by the injury in question thrown violently to the ground by the explosion and force of escaping steam, pieces of the exploded boiler-head breaking the water pipes above him, thereby releasing the water upon him with great force, so that he was unable to rise; was bruised upon the head, severely scalded, and was in the hospital four weeks and one day, was rendered more nervous than formerly, and has burning and itching from the scald. Held, that although he testified that he was earning the same wages as before in his former employment, a finding by the juj;y that his injury was such as to prevent him from performing regular labor such as he performed before the injury, taken together with the general verdict in his favor, may and should be harmonized therewith.</p> <p>5. -Notice by Master of Defective Condition of Appliances. The court charged that if the unsafe and defective condition of the casting could have been discovered by reasonably careful inspection and vigilance the law would charge ap- ' pellant with knowledge of such condition. The testimony showed that actual knowledge did not exist, but it was sufficient to support a finding that it could have existed by the exercise of reasonable care. The jury found actual knowledge. The general verdict was for appellee. Held, that such finding may and should be construed as equivalent to a finding that appellant should have had such knowledge, the legal and logical difference between such actual and constructive findings being more technical than substantial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Habeas Corpus — Petitioner Released upon Security — Personal Presence' at Hearing. A court which issues a writ of habeas corpus and releases the petitioner from custody upon his giving security that he will comply with the orders thereafter made may hear and determine the validity of the officer’s return when the petitioner appears by attorney only, or it may, in its discretion, refuse a hearing until the petitioner is personally present in court.</p> <p>2. - Reasonable Time to Comply with Judgment — Forfeiture of Security. Where the petitioner is released from custody upon the making of a cash deposit conditioned that he will comply with the subsequent orders of the court and abide its judgment, and where at the time set for a hearing the court requires the petitioner to be personally present in court before a hearing upon a demurrer to the return of the officer will be had, the petitioner is entitled to a reasonable time thereafter in which to comply with the orders or requirements of the court before a forfeiture of the cash deposit is adjudged.</p>

<p>Appeal from Franklin district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contracts — Accrual of Action — Complete Performance Delayed by Defendant’s Negligence. C contracted in writing with M to drill an oil well for M, and fully performed the contract so far as appeared by the express terms thereof, and, after the failure of M on demand to pay the contract price, brought suit to recover the same. M, to show that the action was prematurely brought, pleaded and proved a local custom which required C, upon M’s furnishing the material therefor, to case the well. It appeared by the evidence that M had neglected and refused for an unreasonable length of time to furnish the material. Held, that such neglect and refusal did not postpone C’s right of recovery under the contract.</p>

STATEMENT. The plaintiff, a young man nineteen years of age, while in the employ of the defendant received injuries which he claimed were caused by the defendant’s negligence. He recovered a judgment of $3800, from which the defendant appeals. At the time the plaintiff was injured he was at work in what is called the “dry room,” and was sweeping the floor.

<p>Appeal from Leavenworth district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Notice — Grantee in Conveyance of Beal Estate — Unrecorded Deed. Under the statute providing that no conveyance of real estate shall be valid, except as between the parties and as to those who have actual notice, until it is deposited for record (Gen. Stat. 1909, § 1672), actual notice may be. express when it consists of knowledge actually brought personally home, or it may be implied when it consists of knowledge of facts so informing that a reasonably cautious person would be led by them to the ultimate fact. In the latter case the known facts must be sufficiently specific to impose the duty to investigate further, and they must furnish a natural clue to the ultimate fact.</p> <p>2. - Duty of Grantee to Give Notice of His Bights — Bight of Purchaser Taking Warranty Deed. The statute referred to casts upon the grantee in a deed the duty of giving notice of his rights to subsequent purchasers. Such a purchaser may assume the nonexistence of any instrument which has not been made valid against him by filing it for record, and before a purchaser taking a warranty deed can be deprived of the benefit of this assumption information that a prior deed is in fact outstanding and unrecorded must be quite definite and specific.</p> <p>'3. -Same. Under the evidence in this case it is held that a purchaser taking title by warranty deed did not have actual notice of a prior unrecorded deed.</p>

<p>Appeal from Greenwood district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. School Land — Authority to Lease — Validity of Statute— Title. The provisions of chapter 241 of the Laws of 1899, giving authority to certain officers to lease school lands, are not obnoxious to section 16 of article 2 of the constitution, which provides that “no bill shall contain more than one subject, which shall be clearly expressed in its title.”</p> <p>•2. -Appraisement — Authority to Lease. An appraisement of school lands within five years next preceding the execution of a lease thereon is not a condition precedent to the exercise of the power to lease.</p> <p>3. -Appraisement — Change of Rentals. A lease of school lands for a term exceeding five years is, under the restriction imposed by section 5 of article 6 of the constitution, subject to revaluation every five years; that is, a lease is burdened with the condition that the rentals may be changed at each valuation.</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Clark district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. District Court — Term—Duration. A term of the district court, having been regularly convened, continues until there is a final adjournment of the court sine-die or the term ends by the expiration of the period fixed by the statute.</p> <p>2. - Adjournment by 'Judge Pro Tem. — Death of Regular Judge — -Term. Where at the time appointed for a term of court to begin the regular district judge is absent, and a judge pro tem. is duly elected and qualifies and adjourns court to,a future day of the term, and before that day arrives the regular judge dies and his successor is not appointed until after the day to which the court was adjourned by such pro tem. judge, the term will not lapse by the death of the regular judge, and his successor may convene court at any time before the term expires by law.</p>

STATEMENT. The defendant was convicted of obtaining money from the Kansas State Bank of Overbrook by false pretenses. The information charged that the defendant falsely pretended: “That he was one A. C. Cotes, and that he was the payee named in a certain bank check which he then and there had in his possession, and which check said Clyde Hetrick then and there falsely pretended was genuine.” A copy of the check was set out, with the. usual averments charging the oifense.

<p>Appeal from Sedgwick district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mandamus — Public Officer Whose Term Has Expired. One whose term as a public officer has expired may be required by mandamus to perform an act which he should have done while in office, wherever it is in its nature capable of such subsequent performance, and a public purpose is to be served thereby.</p> <p>2. Statutes — Special Law Repealing General Law — Limitation. Where an act establishing a special law for a particular county contains a clause in terms repealing the general law on the subject such clause will ordinarily be regarded as limited in its operation to that county.</p> <p>8. -Repeal of Repealing Load. — Revivor of Original Act. In such a case the repeal of the special act brings the county again within the operation of the general law, the statutory rule that the repeal of a statute does not revive a statute previously repealed having no application to such a situation.</p> <p>4. Constitutional Law — Title of an Act. Chapter 142 of the Laws of 1909 does 'not violate the constitutional provision that “no bill shall contain more than one subject, which shall be clearly expressed in its title.” (Const, art. 2, § 16.)</p> <p>5. -Special Law Repealing a Special Law. The adoption of a constitutional provision against special legislation does not prevent the repeal by special act of a special law previously enacted, or its partial repeal, where the effect is merely to withdraw a county from the operation of the special law and make it subject to the general law.</p> <p>6. Statutes — Construction—Special Salary Law Repealed — New Law Enacted but Operation Postponed — General Law Operative in the Interim. Where at the same session the legislature repeals a special act fixing the compensation of the ifficers of a particular county, and by a separate act provides a new schedule applicable to such county, the presumption that might otherwise exist of an intention that the old basis should govern until the new one took effect fails where the operation of the new schedule is postponed for a considerable period; in such a situation the old general law governs between the repeal of the special act and the time when the new. schedule becomes operative.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Injunction — Liquor Nuisance — Attorney’s Fee — Punishment. The fact that in an action to enjoin a liquor nuisance an unsuccessful defendant is required to pay the plaintiff’s attorney’s fee held not to characterize the proceeding as one brought to enforce a punishment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Deeds — Time of Taking Effect — Delivery in Escrow or Second Delivery. Under the circumstances of this, case, the question whether a deed should take effect from the time it is placed in escrow or from its actual delivery to the grantee depends upon which view will best promote the ends ‘of justice.</p> <p>2. -Burden of Proof — Intervening Bights. A purchaser contending that a deed should relate back to the time it was placed in escrow has the burden of proving, as against inters vening rights, that he is otherwise unable to protect himself from loss.</p>

<p>Appeal from Republic district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court- — Assignments of Error. An assignment of error that the court erred in the judgment which it rendered merely says the judgment is wrong, and does not specify any error within the meaning of rule 9 of this court.</p> <p>2. Mechanic’s Lien —- Subcontractor — Notice • — - Description of Property. The statute providing that any person who under a subcontract with the contractor furnishes material for an improvement on real estate may obtain a mechanic’s lien (Civ. Code, § 651) does not require that the subcontractor should know the exact description of the property to be improved. It is sufficient if his contract relate to the betterment of a particular estate or the estate of a particular person.</p> <p>3. - Same. A contractor went to the office of a lumber company and stated to the company’s agent that he had “Jesse Smith’s contract” and wanted material. The two went out into the company’s yard and looked over its stock, and thereafter the company furnished the contractor material as needed, which was used in the improvement of Smith’s lots. Held, the . destination of the material was sufficiently indicated to entitle the company to a lien.</p> <p>4. - Subcontractor — Notice—■Number or Kinds of Structures. In the- case stated it was not necessary that the subcontractor should know either the number or the kinds of structures contemplated in order that his contract might furnish the basis for a lien.</p> <p>5. -Single Lien — Different Forms of Improvements. A subcontractor furnishing material under a single and entire contract with the contractor is entitled to a single lien for all the material furnished, irrespective of the number of forms the improvement takes or the number of contiguous lots into which the improved tract is divided.</p> <p>6. - Same. In the case stated in paragraph 3 the contractor’s original contract with the owner provided for the erection of a house only. Afterward a contract was made for the construction of walks around the house and a sidewalk in front of the lots on which the house was situated. Held, the subcontractor had the right to continue to furnish material under his own single and entire contract until the contractor’s requirements were satisfied and then file a single lien for the whole account.</p>

<p>Appeal from Haskell district court.</p>

<p>Appeal from Ottawa district court.</p>

<p>Appeal from Wyandotte district court.</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Clark district court.</p>

STATEMENT. This is an appeal by the defendant from an order granting a new trial after a demurrer to the plaintiff’s evidence had been sustained. . The plaintiff was a brakeman on a freight train running between Chanute, Kan., and Tulsa, Okla., and was injured while performing his duties at Tulsa. Three parallel tracks of the defendant extend north and south through that place, crossing Second, Third, Fourth and Fifth streets. These streets are 300 feet apart.

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads- — Duty to Give Warning to Shippers Walking in the Yards. Evidence that at a railroad station where cattle in shipment were frequently detained at night it was customary for persons accompanying live stock in transit to walk back and forth over the yards, between their cars and the depot, is sufficient to justify a finding that the company owed a duty to such persons so engaged to give a warning of the approach of a train.</p> <p>2. Contributory Negligence — Shipper Injured, While Walking in Railroad Yards. One who is accompanying live stock in shipment, and has occasion to walk at night between his train and a depot, can not be said as a matter of law to be guilty of negligence if in attempting to walk in the safe space between two tracks he inadvertently gets close enough to one of them so that he is struck by an approaching train.</p> <p>3. - Failure of Shipper to Carry a Lantern, as Required by His Contract. Where under such circumstances a shipper is killed by being struck while walking near a track, by a . freight train running backward without a sufficient watch being maintained at the rear, and without a whistle or bell being sounded, the fact that he was not carrying a lantern, although his shipping contract required him to do so, does not as a matter of law bar a recovery of damages on account of his death, since it does not conclusively prove that if he had carried a lantern he would have escaped injury.</p> <p>4. Evidence — Testimonial Knowledge of Witness — “I Think.” The ordinary presumption is that a witness who uses the expression “I think” means that his observation was indistinct or his recollection uncertain regarding the matter testified to, rather than that he is without personal information on the subject.</p>

<p>SYLLABUS BY THE COURT.</p> <p>^Negotiable Instruments — Sale and Transfer — Bona Fides— Evidence — Circumstantial—Direct. Where the circumstances surrounding the transfer’ of a note, both before and after the transfer, indicate that the transfer was only made for the purpose of enabling the plaintiff, the indorsee, to defeat defenses which might be set up against the note in an action thereon by the payee, ‘a jury and the court in trying the case are justified in finding that there was, in fact, no' bona fide sale and transfer of the note, although there is evidence of actual payment by the transferee to the holder and that the transferee had no notice of any infirmity or defense against the note. The jury and the court have the right to believe the circumstantial evidence and to disbelieve the direct evidence.</p>

<p>SYLLABUS. BY THE COURT.</p> <p>I. 'Gifts — Validity—Presumption—Burden of Proof. The rule with respect to the presumption of validity and the burden of proof in cases of wills and testaments (Ginter v. Ginter, 79 Kan. 721) does not apply to cases of gifts or contracts inter vivos.</p> <p>2. - Undue Influence — Presumption—Burden of Proof. In the case of a gift or voluntary conveyance inter vivos, where the donor is a widow enfeebled in mind by disease or old age, and the person benefited is her son, with whom she makes her home, equity raises the presumption that the gift or voluntary conveyance was brought about by undue influence, and the burden is upon the party benefited to show affirmatively that the transaction was fairly conducted as if between strangers.</p>

STATEMENT. This action was commenced to enjoin the' collection of a tax levied in the year 1909 for the maintenance and support of three high schools in Saline county. These schools were in existence before the passage of the Barnes high-school law (Laws 1905, ch. 397), but their courses of study were afterward revised and the schools were made to conform to the requirements of that law.

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Payment of Note to Agent — Finding of Agency Supported by Evidence. A customer of a local bank renewed fertile seventh time a note for a certain indebtedness, leaving-the former notes and other papers at the bank. Sometime after executing the last renewal and several weeks before it. was due the maker, having a good balance on deposit, was requested by the cashier, who met him on the street, to pay the note by having it charged to his account, the cashier telling him the note could be had by calling for it at the bank, to-which the maker consented. Soon thereafter the cashier sent the maker one of the former renewals, with a statement showing an item of interest improperly charged. The maker supposed the nóte was the last renewal, but made no investigation concerning it or the interest charge, and believed and continued to believe he had paid the debt. The note in question, the last renewal, was soon after its execution indorsed by the-bank to the appellant, with other notes, to secure a loan made by the appellant to the bank. The note in question matured' September 9, 1907. The bank failed and went into the hands: of a receiver in January, 1908. The appellant did not present the note, which was made payable at the bank, and' did not notify the maker of its dishonor or that it had been transferred by the bank until after the failure. The jury found that the bank was authorized by the appellant to collect the note before it was due, and that the bank intended to-collect it when the amount thereof was charged to the maker’s, account. Held, that the appellant is not entitled to recover.</p>

<p>Appeal from Lyon district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Constitutional Law — Equal Protection of the Law — -Transportation of Militia at Reduced Rates. Chapter 198 of the Laws of 1895, providing that the officers and men of the Kansas national guard shall, when in the performance of military-duty, be transported on all railroads of the state at the rate of one cent per mile, denies to the railroad companies the equal protection of the laws guaranteed by the fourteenth amendment to the constitution of the United States.</p>

<p>Appeal from Morris district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Prosecution, of Action in Another State. Equity, has power to restrain a party within its jurisdiction from prosecuting a suit in the courts of another state, and in a proper case will not hesitate to exercise the power.</p> <p>2. - Grotmds — Action Brought Maliciously. Courts will not enjoin a suit in another state merely on the ground of convenience of parties, but will do so when such restraint is necessary to prevent one citizen from doing an inequitable thing, as where the action has been brought maliciously, in order to vex and harass another citizen or to interfere with or prevent the free administration of justice in a suit pending-in this state.</p> <p>3. -Petition — Demurrer. The petition in this case examined, and held, that it states a cause of action, and that it was error to sustain a demurrer to the petition and to refuse a restraining order.</p>

Appeql from Scott district court. STATEMENT. Two causes of action are stated in the petition: One for foreclosure of a mortgage, and one for possession of the land, based upon the alleged rights of the plaintiff as a mortgagee, and also as grantee in a tax deed, claiming that he had previously taken and held possession and been wrongfully dispossessed by defendants John F. Masch and wife.

<p>SYLLABUS BY THE COURT.</p> <p>1. Personal Injuries — Damages—Amount of Award — Quotient Verdict. In an action by a woman twenty-three years of age for damages caused by being violently thrown from a street car, the testimony showing that as a result of the injury she was taken to a hospital, where she remained three weeks and where an operation was performed removing one ovary and resecting the other, and that she was rendered weak and nervous and unable to follow her former occupation and earn her former wages, a verdict for $10,933, while large, is not so excessive as to show passion and prejudice, nor does it show upon its face that it was the result of addition and division.</p> <p>2. - Contributory Negligence — Instructions—Applicability to the Issues. Where the plaintiff sues upon the allegation and theory that she was violently thrown from a street car by a sudden jerk before it had come to a full stop, the street-railway company not having pleaded contributory negligence, and asserting and trying the case upon the theory that the plaintiff’s injury occurred by a fall after she had safely left the car, held, that the failure of the court in its instructions to direct the attention of the jury to the plaintiff’s contributory negligence in attempting to alight while the car was in motion does not constitute reversible error.</p> <p>3. . — - Instructions — Enlargement of the Issues• — Immaterial Error. The day following the injury, while the plaintiff was suffering therefrom, an agent of the railway company procured from her a statement which she could not sign by reason of her injury, but which she directed a friend to sign, such statement being to the effect that the car suddenly started after it had come to a stop. After leaving the hospital she filed her original petition, containing a similar allegation. Some weeks thereafter, a deposition of the motorman having been taken, she filed an amended petition alleging that the injury occurred by reason of a sudden jerk while the car was being brought to a stop. In one of the instructions the attention of the jury was called to the duty of the railway company in respect to a sudden start after a full stop, and also to its duty in respect to bringing the car to a stop and keeping its gates open in the meantime. Held, that in view of the answer, and the theory on which the case was tried by the street-railway company, such reference to the sudden starting of the car does not constitute reversible error.</p> <p>4. -Injury to Passenger Alighting from a Street Car— Negligence — Evidence and Verdict. Where the plaintiff and two witnesses testify substantially that the injury was caused by a sudden jerk before the car had been brought to a full stop, and former motormen experienced in the operation of the same kind of a car testify that such jerk might occur, and would occur unless the car was properly equipped and operated, held, that the liability of the street-car company is sufficiently shown to uphold the verdict.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Forcible Entry and Detainer — Possession—Title—Lease— Corporations — Authority of Directors. The directors of a. corporation organized to maintain an auditorium to be used principally for public entertainments undertook, without special authority, to execute a ten-year lease of the property to an individual, to discharge -the manager employed by the association, and to put the lessee in possession by breaking a lock and replacing it with a new one. The manager attempted to hold possession for the corporation, and his acts were adopted by the stockholders at a subsequent meeting- and by persons then selected as new directors. The lessee . brought an action of forcible entry and detainer against the manager, who defended as a representative of the corporation. Held, that whether or not the lease was void the plaintiff could not recover in that proceeding.</p>

<p>Appeal from Wyandotte court of common pleas.</p>

The court made findings of fact of which the following is a brief summary: (1) C. C. Stouffer was the owner of the land, subject to a mortgage belonging to the estate of Phineas Prouty, deceased. In 1894 Richard D. Harlan and Walter Chrystie, as executors of the Prouty estate, brought foreclosure proceedings, resulting in a sheriff’s deed to James S. Harlan, who took the title for the estate and entered into the possession of the land.

<p>■SYLLABUS BY THE COURT.</p> <p>^Promissory Note — Negotiability—Time of Payment. A promissory note, otherwise in negotiable form, contained the following provision: “The makers and indorsers of this note hereby severally waive presentment for payment, notice of payment, protest and notice of protest, and all exemption that may be allowed by law, and valuation and appraisement laws waived, and each signer and indorser makes the other an agent to extend the time of this note.” It is held, that- the note is not a negotiable instrument.</p>

<p>Appeal from Finney district court.</p>

<p>Appeal from Crawford district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Injury to Employee — Assumption of Risk — Contributory Negligence. In an action for personal injuries the plaintiff’s evidence showed these facts: He was an employee of a gypsum mining company, whose experience enabled him to tell when the roof of an excavation was unsafe, but whose general employment at the time did not contemplate work inside the mine; on the request of another employee he tested the roof of the room in which the latter was working, and found a part of it loose and a part of it sound; he reported this condition to the superintendent, at whose direction he undertook, about an hour later, to remove the loose portion; in the meantime, in the course of the usual mining operation in an adjoining .room, a shot had been fired which had loosened that part of the roof which had previously been sound; without making any further test he began the removal of the part he had already found to be loose, when the entire roof fell in, causing the injury on account of which the action was brought. Held: (1) The plaintiff must be regarded as having voluntarily assumed for the time being the duties of an inspector. (2) The ordinary rule regarding the duty of an employer with respect to providing a safe place in which to work does not apply because the plaintiff was engaged in attempting to make a dangerous place safe. (S) The plaintiff’s omission to test anew the soundness of the roof before beginning work upon it constituted such negligence on his own part as to bar a recovery.</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Wilson district court.</p>

<p>Appeal from Sedgwick district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Grounds for Action — Unavoidable Accident. A cause of action based upon negligence can exist only where the defendant wrongfully fails to perform some duty owed to the plaintiff.</p> <p>2. - Verdict Inconsistent with the Special Findings. In an action founded upon negligence, where the jury find that the defendant was not guilty of any of the acts of negligence charged, a yerdiet in favor of the plaintiff can not be permitted to stand.</p>

<p>Appeal from Cloud district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Quitclaim Deed — Estate Conveyed — Expectancy. A quitclaim deed to real estate owned by the maternal grandmother of the grantor (the mother of the latter being deceased), who expects to inherit from her a share thereof, conveys nothing and does not preclude the grantor from subsequently claiming-the share devised by the grandmother to the deceased mother of the grantor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Corporations — Insolvency—Receiver—Jurisdiction. When a district court in a suit brought by the state for that purpose appoints a receiver to wind up the affairs of a banking corporation it thereby secures to itself full jurisdiction to adjust all rights, interests, claims and demands, legal or equitable, relating to the bank’s estate or growing out of its administration, and to control, at its discretion, all controversies affecting the subject matter of the receivership.</p> <p>2. - Litigation of Claims against Assets — Independent Action. In the exercise of the jurisdiction stated the court may refuse to allow a claim upon the assets in its custody to be litigated in an independent action, and may itself adjust the matter in a proceeding in the receivership suit.</p> <p>3. -Bight to Jury Trial. In such a case the court may, if it see fit, award a trial by jury as to matters of fact or damages,’ but it is not obliged to do so.</p> <p>4. - Limitation of Actions — -Laches. When a court undertakes to wind up the affairs of a bank through a receiver the right to secure the satisfaction of demands by the usual processes of the law is suspended. The statute of limitations against ordinary actions does not apply, and lapse of time before proceeding against funds in the receiver’s hands is important only as it indicates laches or unreasonable delay.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Damages — Injury by Fire — Market Value of Growing Crops. In an action for damages from fire it is not error to admit evidence of the value per ton of a crop of timothy and clover destroyed, or of the cost of restoring a hedge to its former condition.</p> <p>2. Evidence — Error in Striking Out Cured by Subsequent Testimony. Error in striking out the testimony of an inspector that he found a spark arrester to be in first-class condition held to have been cured by his subsequent testimony that no repairs were made at the time because none was needed.</p> <p>3. Railroads — Injury by Fire — Proof of Negligence — Presumption — Special Findings. In an action against a railway company for a fire caused by the operation of its railroad, in view of the statute creating a presumption that a fire so caused is the result of negligence it is not necessary, in order to sustain a verdict for the plaintiff, that the jury shall be able to specify in what respect the defendant was negligent; and where in reply to special questions whether the defendant was negligent in several distinct particulars the jury state that they do not know, it is not error to refuse to require more definite answers.</p> <p>4. Instructions — Error Cured by Special Findings. In such an action an erroneous instruction as to the degree of care required of the company in the construction of its engines is nonprejudicial where the jury find that it has failed, to disprove negligence in the inspection and operation of the engine which caused the fire.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Damages — Injury by Fire — Growing Crops — Double Damages. In an action for an injury by fire an instruction that the plaintiff may recover the value of the unsevered timothy and clover, in addition to the reasonable cost of restoring the field to its original condition, is not necessarily erroneous.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Actions and Remedies — Limitation of Actions — Counter Claim for Expenses of Litigation. The appellants sued on the covenants of warranty of title in a bill of sale. In a former suit' on the same cause of action it was adjudged that they could not maintain an action at that time because of an oral agreement not to sue until other litigation terminated. Held: (1) That while they were prevented from maintaining the action the statute of limitations was tolled; (2) that an objection to any testimony under a counter claim for damages, expenses and attorney fees in defending the former action was properly sustained, there being no claim that the former action was not prosecuted in good faith, and any claim arising out of the breach of the agreement to forbear being barred by the statute of limitations.</p>

<p>Appeal from Brown district court.</p>

<p>Appeal from Shawnee district court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Contracts — Substantial Performance — Full Performance Prevented by Plaintiff■ — Payment—Issues Determinable. An interurban railway company, in consideration of a franchise to use the streets of the city, agreed to pay a fixed sum upon the completion of the work to be done thereunder. In an action by the city to recover the amount the company contended that the payment was not due because the city had, by a temporary injunction, prevented the construction of a sidetrack included in specifications which had been submitted and approved in accordance with a provision of the ordinance granting the franchise. Held, that the rightfulness of the injunction need not be determined in this action; and that, notwithstanding the construction of the sidetrack has so far been prevented by the city, there has been such a substantial completion of the work to be done under the franchise as to render the consideration payable.</p>

<p>Appeal from Stafford district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Elections. It is a principle of general application that courts will not enjoin the calling and holding of an election.</p> <p>'2. - Grounds for Injunction. Injunction, being an extraordinary remedy, will not be granted unless it be made to appear to the satisfaction of a court of equity that some substantial and positive injury will occur; acts which, though irregular and unauthorized, can have no injurious result, constitute no ground for the relief.</p> <p>■3. - Elections — Irregularities. Courts of equity will not enjoin the calling and holding of an election in a city of the second class under the initiative and referendum statute on the ground of alleged irregularities in the petition or because the proposed ordinance to be submitted to the electors purports to authorize the city to perform an act which it is claimed is ultra vires.</p> <p>4. - Grounds — Moot Questions. In a suit by an individual taxpayer of a city of the second class to enjoin the city from submitting to the qualified electors under the initiative and referendum statute a proposed ordinance authorizing the city to lease or sell its electric-light plant, the court will not anticipate conditions which may never arise, and since the people may not by their votes adopt the ordinance the court will not inquire into the validity of the proposed transaction.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Injunction — Election Contest — Bight to Public Office. It was held that injunction would not lie to contest an election and determine the right to hold a public office.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Tax Deeds — Consideration—Cost of Redemption. A tax deed which recited that the interest of the county was assigned for less than the cost of redemption was void on its face.</p>

<p>Appeal from Franklin district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Limitation op Actions — Amendment of Petition. Where a petition did not even inferentially charge a specific act of negligence the pleading could not be amended to charge such negligence after the statute of limitations barred a recovery thereon.</p>

<p>Appeal from Allen district court.</p>

<p>Appeal from Greenwood district court.</p>

<p>Appeal from Labette district court.</p>

<p>Appeal from Reno district court.</p>

<p>Appeal from Haskell district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Interest — Advances to a Partnership by a Member of the Firm. Interest is not chargeable on advances made to a partnership by one of its members until a balance has been struck, unless there is an actual but not necessarily express understanding to that effect, or some special reason therefor founded upon equitable considerations.</p>

<p>Appeal from Douglas district court.</p>

<p>Appeal from Kearny district court.</p>

<p>Appeal from Jefferson district court.</p>

<p>Appeal from Labette district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Record — Duty of Appellant to Have Stenographer’s Notes Transcribed, Certified, and Filed. While section 574 of the code does not expressly require that the party appealing to the supreme court, in a case tried in a court of record, shall direct the stenographer to transcribe and certify to the correctness of all of the' stenographer’s notes of the testimony and proceedings in the case and thus make such transcript, when filed in the court, a .part of the record, it is the only provision made for a record of the evidence in the case on appeal. Other provisions of the code assume the existence of such a record. It is, therefore, held to be the duty of the appellant to procure such transcript, or so much thereof as may be pertinent to his appeal, and have it made a part of the record before filing his abstract in this court.</p> <p>2. Contracts — Acceptance of Offer to Lease — Retention of Paper Tendered. Where two parties are negotiating for a lease of land by one to the other, and the lessee prepares a lease which the lessor declines, but the lessor prepares and signs another lease with some different provisions and stipulations and sends it by a third person to the lessee, who immediately refuses to execute it, but retains the paper and insists that the lease shall be as he prepared it, if at all, held, that the retention of such paper does not constitute a completion of the contract of lease on the tex’ms therein specified.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Reversal in Accordance with Opinion — New Trial — Judgment on Mandate — Waiver. At a former hearing of this case in this court a judgment was reversed and the cause remanded for further proceedings in accordance with the opinion. The district court then allowed amended pleadings to be filed and proceeded without objection to a new trial of the action. It is held: (1) That this was proper; (2) that as the defendant did .not move for judgment on the mandate, or otherwise present the question, it is now too late to do so.</p> <p>2. Contracts — Construction — Conveyance and Simultaneous Agreement to Reconvey — Intention. The effect of a deed of conveyance of land and a simultaneous agreement to reconvey must be determined by the intent of the parties, as shown by their situation, the circumstances surrounding the transaction, the terms of the instrument, and independent parol agreements not conflicting with such terms.</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Seward district court.</p>

<p>Appeal from Osage district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Judgments — Liens—Priority—Time of Levy of Execution. Where two judgments were rendered against the same person, and no execution was levied within one year upon the land of the judgment debtor under either judgment, the judgment creditor who first caused an execution to be thereafter issued and levied obtained thereby a priority of liens upon the land levied upon, although the judgment of the other creditor was first docketed.</p> <p>2. -Execution — Joint Judgment Debtor — Judgment Dormant as to One Debtor. An execution may be issued and levied under a judgment against the property of one or more joint judgment debtors, although the judgment is dormant as to another one of the judgment debtors.</p> <p>3. - Res Judicata — Title and Ownership — Conveyance Pending Partition — Estate Conveyed. An owner of land died intestate, leaving a widow and four children. Pending an action for partition, D, one of the children, a defendant in that action, made a conveyance to W, describing the property conveyed as “my . . . one-eighth interest in” the land of the deceased. A judgment was afterward rendered in the partition suit giving to the widow a life estate in the land, and to the four children the remainder in fee. Soon after this judgment had been rendered, a judgment in another action for the recovery of money was rendered against D and became a lien upon his land. It is held: (1) That the judgment in the partition suit finally determined that D’s interest in the land was one-fourth of the remainder; (2) that D’s deed to W conveyed one-half of that interest, being one-eighth of the land, subject to the life estate, leaving D the owner of the other one-eighth, which is subject to the lien of the judgment for money so rendered against him.</p>

<p>Appeal from Wyandotte district court.</p>

STATEMENT. This suit was brought to enjoin the use of a strip of-land as a highway. The defendant officers claimed that the highway had been legally laid out, that it existed by user and limitation, and also by dedication and acceptance.

STATEMENT. On June 24,1908, the parties to this litigation agreed in writing to exchange real estate at stipulated prices. That of the plaintiff is situated in the state of Oklahoma and was valued at $4250. That of the defendant is situated in the city of Holton and was valued at $4000. The defendant agreed to pay the difference in cash. Each party agreed to furnish an. abstract showing perfect title to his land, free and clear of all encumbrances.

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Injury to Child — Attractive Nuisance. Evidence that a boy thirteen years of age was fatally injured by putting his hand in contact with a power fan maintained in an unguarded condition in connection with a factory, at a place accessible from the outside, where children were permitted to play, justifies a finding of actionable negligence on the part of the owner.</p> <p>2. - Contributory — Proximate Cause. In an action by a father for the negligent death of his son while employed' in a factory, the fact that he consented to such employment is not a bar to a recovery, notwithstanding it was his duty under the statute to have had his son at school.</p>

STATEMENT. This is an appeal from a judgment decreeing the specific performance of a written contract for the exchange of property. The court made very full and ■complete findings of fact, from which it appears that the appellee was, on the 9th day of June, 1908, the equitable owner and in the peaceable possession of a tract of land in Vernon county, Missouri, the legal title of which stood in the name of Florence N. Briggs, his bookkeeper.

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence — Admissions—Pleadings in Another Action. Where a petition is filed in an action by a party who becomes a defendant in another action, it may be used in evidence on the trial of such other action against the party who filed it, if it contains statements material to the issue on trial, in the nature of admissions or allegations tending to contradict his testimony.</p> <p>:2.: Instructions — Applicability to Issue — Reading Petition Charging Other Acts of Negligence to Jury. Where evidence was offered tending to support hut one of three charges of negligence contained in a petition, and the court in giving instructions read the petition to the jury, but in a separate instruction stated clearly the matters which the plaintiff was required to prove to make out a cause of action, and specified therein only the particular charge of negligence which was supported by evidence, and no request was made otherwise to eliminate or withdraw from the jury the other charges, it is held, that there is no prejudicial error in the instructions of which the defendant can properly complain.</p> <p>:3. Master and Servant — Notice to Master of Defect in Roof of a Mine — Liability to Injured Employee. It is not necessary that the master should have actual knowledge of the defective condition of a roof in a mine in order to be liable for a personal injury to an employee by the falling of a fragment therefrom, if in the exercise of reasonable care the defect would have been known and the resulting injury avoided.</p> <p>4. - Negligence in Testing Condition of Roof — Question of Fact. To ascertain the condition of the roof in a drift of a lead-and-zinc mine the operators of the mine adopted the use of a prod, consisting of a piece of gas pipe, to test the roof and dislodge loose pieces therefrom. Whether the instrument made use of and the method and frequency of its use satisfied the requirement of reasonable care on the part of the master to make the place safe for the servants was, under the evidence, a question of fact for a jury.</p> <p>5. -Assumption of Risk — ■Evidence and Findings. The contention of the defendants that the evidence and findings of the jury require the court to hold, as matter of law, that the injured'employee assumed the risk of the danger by which he lost his life is not sustained.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Highways — Location — Opening —■ Injunction — Remedy. A road was petitioned for, viewed, located and ordered to be opened, the order reciting that it be established as a public highway, “beginning at the southwest corner of section 21, . . . thence running north regardless of disputed corners to the state line.” The true location of the northwest corner of section 21 was disputed, the surveyor’s report showing that he had located it about six rods east of where the appellant, claims it is. The appellant was awarded damages but took no appeal from the order or allowance of the board. Held, that he can not maintain injunction to prevent the opening of the road.</p> <p>2. - Appeal from Surveyor’s Report. An attempted appeal from the surveyor’s report under section 2275 of the General Statutes of 1909 was without avail, such section having reference to land surveys and not to the kind of survey involved here.</p>

<p>Appeal from Crawford district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. City Officers — Delegation of Discretionary Power — Construction of a Sidewalk. It is not an improper delegation of municipal power for the mayor and council of a city to commit the construction of a sidewalk to the street commissioner, when the work has been ordered and the details of its execution have been prescribed by ordinance.</p> <p>2. - Kind of Material to be Used in Constructing Sidewalk. The judgment and discretion of the mayor and council respecting the kind of material to be Used in the construction of a sidewalk are sufficiently exercised by the designation of several kinds, any one of which may be used.</p> <p>3. -- Levying Special Assessment. When a sidewalk has-been duly constructed by the street commissioner, under a proper ordinance which required him to do so and which provides that he shall report the cost to the city clerk, who shall certify the amount to the county clerk to be extended on the tax rolls against the lots adjacent to the walk, the ordinance constitutes the legislative act levying the special assessment; and the report of the cost and its certification to the county clerk are ministerial matters.</p>

<p>Appeal from Wyandotte court of common pleas.</p>

<p>Appeal from Wyandotte district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Parties — Real Party in Interest. The action was brought to recover upon a bond given under the provisions of the mechanic’s lien law for material furnished to a contractor for the erection of a school building. It is held that the evidence was sufficient to show that the plaintiff was the real party in interest.</p> <p>2. Instructions — Clause Similar to One Requested in Another Instruction — Immaterial Error. An instruction containing a clause objected to by the defendant, which is in substance the same as one contained in a request made by the defendant for another instruction, is examined and held to be not prejudicial ; but if it were, the defendant ought not to complain.</p> <p>3. New Trial — Newly Discovered Evidence. Newly discovered evidence, to afford a ground for a new trial, must, among other requirements, be of such'character and strength as would with reasonable probability have compelled a different decision if it had been introduced. (Sexton v. Lamb, 27 Kan. 432.)</p>

<p>Appeal from Shawnee district court.</p>

<p>Appeal from McPherson district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Jury Trial — Justice of the Peace — Appearance of Defendant— Right to Appeal. The statute giving a right to trial by jury-in justices courts reads: “In all civil actions, after an appearance of the defendant and before the justice shall proceed to inquire into the merits of the cause, either party may demand a jury.” (Jus. Civ. Code, § 95.) The justices act also provides that no appeal shall be allowed from the judgment of a justice of the peace in jury trials where neither party claims more than $20. (Jus. Civ. Code, § 132.) Held,, that where-the defendant makes no appearance the plaintiff has no right, to a jury trial, and can not, by demanding and obtaining one,, deprive the defendant of his right to appeal.</p>

<p>Appeal from Dickinson district court.</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Meade district court.</p>

<p>Appeal from Shawnee district court..</p>

<p>Appeal from Republic district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Supreme Court — Original Jurisdiction — Supervisory Control Over Inferior Courts. The grant of original jurisdiction to the supreme court in quo warranto, mandamus and habeas corpus comprehends and carries with it authority to exercise superintending control over inferior courts to the extent that it may be exerted by those writs and proceedings.'</p> <p>■2. District Court — Appellate Jurisdiction■ — Supervisory Control Over Inferior Courts. In addition to its appellate jurisdiction the district court is vested with authority to supervise and control inferior courts and tribunals in order to prevent and correct errors and abuses.</p> <p>3. Habeas Corpus — Appeal from Probate Court to District Court. An appeal may be taken to the district court from a decision of the probate court in a habeas corpus proceeding.</p> <p>4. Judgments — Custody of Children — Modification of Decree— Notice — Interference by Habeas Corpus. A district court which renders a judgment divorcing parties and providing for the custody, education and maintenance of minor children holds a continuing jurisdiction in respect to the children, and may at any time, upon proper application and notice, modify its decree whenever the altered conditions or circumstances of the ease or the parties require it, and when due notice of an application to modify the judgment has been made the probate court can not, by a writ of habeas corpus or otherwise, deprive the district court of power to modify the judgment nor interfere with its authority to change the custody and control of the children.</p>

<p>Appeal from Linn district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Referendum — City Ordinance' Changing Rates — Public Utility Franchise. When a grant is made, by a city of the second or third class, of a franchise to supply gas to the city and its inhabitants for a term of years, which prescribes the plan on which gas is to be distributed and the rates which consumers will pay therefor, it is competent for the mayor and council of such city thereafter to make reasonable changes in the rates from time to time, and section 749 of the General Statutes of 1909 does not require that an ordinance making such changes shall be- submitted to the electors for their approval or rejection.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Habeas Corpus — Discharge of Party to Pending Criminal Action. A party to a criminal action pending in a court of competent jurisdiction is not entitled to a discharge on habeas corpus before final trial and judgment on the ground that the complaint is based upon an unconstitutional statute, although a motion to quash the complaint on the ground stated has been denied.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Forcible Entry and Detainer — Title and Ownership. The holder of a tax deed who never had possession could not maintain forcible entry and detainer against one in peaceable possession under an oral contract to purchase from the holder of a prior tax title.</p>

<p>Appeal from Sedgwick district court.</p>

<p>Appeal from Cheyenne district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Pleadings — Demurrer—Action on a Contract for Damages. In an action on a contract for damages a petition stated a cause of action.</p>

<p>Appeal from Marion district court.</p>

<p>Appeal from Jackson district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Tax Deeds — Excessive Consideration. A tax deed held void on its face because it recited a consideration in excess of the amount legally chargeable against the property.</p> <p>2. --- Case Criticized. Certain dictum in Dye v. Railroad Co., 77 Kan. 488, disapproved.</p>

<p>Appeal from Morris district court.</p>

<p>Appeal from Jackson district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — “Principal” Beneficiary — Interpretation of Statute. Section 9787 of the General Statutes of 1909, requiring certain affirmative proof to establish the validity of a will written or prepared by a person occupying a confidential relation to the testator and who is the sole or principal beneficiary in the will, applies to the single case of a will written or prepared by a person in a confidential relation to the testator who receives the whole or the most considerable portion of the estate devised. The statute can not be interpreted as if it read “the sole or one of the principal beneficiaries in the will.”</p> <p>2. - Relative Importance of Beneficiaries’ Shares. In determining whether or not a person is the principal beneficiary in a will the relative importance of his share to the individual shares of other beneficiaries and to the whole estate should be considered.</p> <p>•3. - Chief Devisee — “Principal Beneficiary.” In this case it is held that a person who received more than five-sevenths of the estate devised is the principal beneficiary of a will, and that a person occupying a confidential relation to the testator who assisted in preparing the will and who received less than one-seventh of the estate devised is not such beneficiary.</p>

<p>Appeal from Sedgwick district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Instructions — Failure to Instruct Not Prejudicial Error. A tract of land was appropriated by a drainage district and a dike constructed across the same sixty feet wide at the base and eight feet above, the ground. Witnesses testified as to the usable value of the land not occupied by the dike. The court instructed in general terms that the fee title of the land remained in the owner, and that the drainage district simply acquired the right to build and maintain the dike. Held, that the failure to instruct specifically that the owner has the right to such use of the land as will not interfere with the maintenance of the dike was not prejudicial error.</p> <p>2. Damages — Interest. The allowance of interest on the damages from the time of the construction of the dike was proper.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Former Construction Approved. The construction-given to a clause of a will in Benton v. Benton, 78 Kan. 366,. 373, is adhered to.</p> <p>2. Parties — Additional Necessary Parties Ordered Brought In. On consideration of the evidence it is held that important questions involved in this action and arising upon the will above referred to can not be finally determined without bringr ing in additional parties and taking further proceedings. It is directed that this shall be done. ■</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Extreme Cruelty — What Constitutes. Extreme cruelty exists when the conduct of the husband or wife is such that the life or health of the other may be endangered, or when such conduct unjustifiably wounds the mental feelings or so destroys the peace of mind as seriously to impair the health or endanger the life of the other, or is such as utterly destroys the legitimate objects and aims of matrimony; and when words alone are relied on it must appear that they were uttered not merely as complaints against the real'or apparent misconduct of the other, but that they were uttered without justifiable cause and for the purpose of inflicting pain.</p> <p>2. -. Extreme Cruelty — -What Does Not Constitute. Occasional-irritability, faultfinding and outbursts of temper on the part of one, followed by demonstrative affection and by forbearance, with a sincere desire for the love and companionship of the other, do not constitute extreme cruelty.</p>

<p>Appeal from Montgomery district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Evidence — Agent’s Admissions Competent against Himself. It is as competent to prove the admission by one that he is the agent of another, where that is the fact sought to be established against him, as it is to prove any other admission .■against his interest.</p>

STATEMENT. Gotlieb Zeitlow was the father of Henry Zeitlow, the plaintiff, August Zeitlow, a defendant, and Albert Zeitlow and Lasetta Nelson. Sometime before the year 1902 he had conveyed to each of his sons eighty acres. of land.. He still owned the home place of eighty-acres in McPherson county, and another quarter section near by.

<p>Appeal from Atchison district court.</p>

<p>Appeal from Jackson district court.</p>

<p>Appeal from Ellsworth district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Unguarded Cellarway in Public Street. A city which knowingly permits a deep cellarway to remain open and unguarded in a public alley, a few feet from a principal street, is responsible in damages to one who in the darkness of night and without negligence falls therein.</p> <p>2. -Instructions Not Erroneous. Where certain facts, if established, necessarily show negligence on the part of the defendant, it is not error for the court to instruct the jury that if they find such facts as alleged to be true that they , should find for the plaintiff, unless the plaintiff is shown to have been guilty of contributory negligence, in which case the plaintiff can not recover.</p>

<p>SYLLABUS BY THE COURT.</p> <p>New Trial — Verdict Contrary to Weight of Evidence — New Code. One of the grounds for granting a new trial under the old code (former Code, § 306, Gen. Stat. 1901, § 4754) was that the verdict is not sustained by sufficient evidence. The new code (Code 1909, § 305) reads: “Fourth, that the verdict, report or decision is in whole or in part contrary to the evidence.” Held, that both forms of expression mean the same thing, that is, when the weight of the evidence as a whole is not sufficient to justify the verdict.</p>

<p>Appeal from Jackson district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Officers — Delegation of Official Duties. Ordinarily, official duties of a ministerial character may be delegated to another, but those involving the exercise of judgment and discretion may not be entrusted to a deputy, or other person, unless legislative authority to do so is given.</p> <p>2. - State Live Stock Commissioner — Deputy. No statutory authority is given the live-stock sanitary commissioner to appoint a deputy, and the duties imposed on him to inquire and determine whether live stock are afflicted with contagious and infectious diseases of a malignant character, and if found to be so afflicted, to establish a quarantine and make such sanitary and police regulations as are necessary to circumscribe and exterminate the disease, involve judgment and discretion and can not be entrusted to a deputy or delegated to another.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien — Inclusion of Nonlienable Items in Good Faith Does Not Defeat. The inclusion of nonlienable items in a statement for a mechanic’s lien does not defeat the lien when there is no falsification of the statement, when such items are not confused with those which are proper so that they can not be easily separated, and when they were included in good faith under a mistaken belief respecting the extent of the claimant’s right.</p> <p>2. --Lien Statement Sufficiently Itemized. A subcontrae- . t-r’s lien statement for material furnished and labor performed under a completed contract for a stipulated gross price is sufficiently itemized which gives the contract price, and extra items stated separately.</p> <p>8. - Notice of Filing — Diligence in Serving — Question of Fact. Notice of the filing of a mechanic’s lien must be given the owner within a reasonable time. The question whether or not diligence has been exercised in serving the notice is one of fact to be determined according to the circumstances of each case.</p> <p>4. - Notice of Filing of Lien Statements. Under the facts stated in the opinion it is held that notices of the filing of lien statements were given in time although in one instance the delay extended over a period of 137 days.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Garnishment — Foreign Corporation — Debt Contracted Outside of State — Jurisdiction—Publication Service. A foreign corporation doing business in this state, and subject to process here, may be garnished for a debt owing to a nonresident defendant, which was incurred outside the state; and'jurisdiction over the fund, as against the defendant, and as against a nonresident claimant of it disclosed by the garnishee’s answer, may be obtained by publication service upon them.</p> <p>2. - Foreign Judgment. .Where a judgment rendered in another state is satisfied without the indebtedness having been fully paid, under an agreement that the defendant is to pay the balance, the remaining obligation is a contract debt and is subject to garnishment in this state.</p> <p>3. Minors —■ Necessaries — Attorney’s Fee-. Beneficial services rendered to a minor by an attorney under an express or implied contract are classed as necessaries, and payment therefor can not be avoided on the ground of the client’s minority.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negotiable Instruments — Material Alteration — Ratification. A material alteration in a promissory note may be ratified by any person affected by it so as to bind him as fully as though he had authorized it in the first instance.</p> <p>2. -Material Alteration — Ratification—New Consideration Not Required — Statute Construed. A new consideration is not necessary to support the contract of ratification. Section 5377 of the General Statutes of 1909 which provides that “where a negotiable instrument is materially altered without the assent of all parties liable thereon it is avoided, except as against a party who has himself made, authorized or assented to the alteration and subsequent indorsers” is construed to mean that any one of the parties to such an instrument may assent to a material alteration so as to make himself liable thereon without any new consideration, upon the principle that he who may authorize in the beginning may ratify in the end.</p> <p>3. - Material Alteration — Ratification Renews Liability. At the request of the payee the maker of a promissory note after it had been executed and delivered altered the time of payment from three years to one year. Two of the sureties on the note afterward indorsed in writing upon the back of the instrument their agreement to the change of time. Held, that they ratified the change and made themselves liable upon the note without any new consideration.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Deeds — Warranty—Resulting Trust — Quieting Title. The owner of a farm was pressed by litigation upon a liability requiring immediate attention. His children, in whose care he had left the farm, negotiated a settlement of this claim and by letter advised their father, who was then in Germany, to convey the farm to them in order that they might, as stated in their letter, borrow the money necessary to make- the settlement upon a mortgage to be given by them upon the land. He approved the settlement, executed the deed they had sent to him, and returned it to the grantees, who thereupon borrowed the necessary money, gave their note therefor with a mortgage upon the land to secure its payment, and used the money as they had proposed in payment of the claim referred to, and necessary expenses. The father .then returned to his home, resumed possession of the farm, and paid all expenses and indebtedness incurred by his children in the matter in full. About fifteen years after resuming possession of the land, he commenced this action against his sons and daughter, grantees in the deed, to quiet his title to the farm; they pleaded ownership of the land in fee simple under the deed referred to, subject only to the use thereof by their father during his lifetime. It is held, that the action to quiet title may be maintained; that the grantees in the deed took the legal title in trust, arising by- implication of law from the facts stated, to raise the money required, for their father’s use, and that the purposes of the trust having been accomplished, the mortgage satisfied, and all expenses paid, the father is entitled to a decree quieting his title.</p>

<p>Appeal from Lyon district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Counterclaim —■ Gratuitous Service — No Recovery. When a service is performed or use given by one party to another with the intention that no charge shall be made or compensation paid therefor and it is accepted on that theory, the party can not subsequently, upon changing his mind, recover for such service or use, and it is further held that the facts and circumstances of the present case warranted the court in instructing the jury upon this rule of law.</p>

STATEMENT. The plaintiff brought suit to set aside her consent to her husband’s will given in writing at the time the will was executed. The petition alleged that the testator left personal property worth $20,000, a quarter section of land occupied as .a homestead and worth $10,000, and a section of land worth $15,000.

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Repugnant Calls — Interpretation. Where a will contains repugnant calls in the description of land devised, that call may be rejected which was likely to have least engaged the attention of the testator, and in which there was the greatest likelihood of error.</p> <p>2. - Description of Land. Although ordinarily the statement of acreage is the least important part of a description of land, it may he controlling when it obviously was the intention of the testator that a specified quantity of land should be devised.</p> <p>3. - Ownership of Land Devised — Presumption. In the absence of anything to suggest the contrary, a testator must be understood as asserting that he is the owner of a tract of land which he undertakes to devise, although he does not in terms refer to it as his land or employ any equivalent expression.</p> <p>4. -Land Devised — Parol Evidence. Parol evidence is admissible to identify the land devjsed by ascertaining to what tract the description will apply.</p> <p>5. -Error in Description of Land Devised — Interpretation. Where a testator purports to devise to each of two sons forty acres of land in a particular county, and then describes the tract devised to each as the half of a designated quarter of a quarter section, and it is shown that he owned a half of the quarter section named, and no other land in that county, it is clear that he intended that each son should receive a half of the eighty acres, and the will should be so construed.</p>

<p>Appeal from Marshall district court.</p>

<p>Appeal from Decatur district Gourt.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Sale of Land by One Who Has No Title. One may bind himself personally by an agreement to furnish a • deed to land owned by another, even when -he has no present interest therein and no means of compelling a conveyance.</p> <p>2. - Sale of Land by One Who Has No Title — Statute of Frauds. Such a contract, being in effect one for the sale of land, is not enforceable unless in writing.</p> <p>3. - Void Instrument — Return of Consideration. Where one agrees orally that for a certain sum to be paid him he will procure a deed to another from the owner of a tract of land, and under color of such agreement delivers a paper purporting to be such a deed and receives the stipulated amount, he is liable for a returp of the money upon the instrument turning out to be a forgery, regardless of what he may have paid to the person of whom he obtained it, and notwithstanding his own good faith in the transaction.</p> <p>4. - Void Instrument — Expenses of Grantee in Suit to. Quiet Title Not Recoverable. Under such circumstances the grantee in the forged deed can not recover from the person from whom he obtained it the expenses of defending an action brought by the owner of the land to remove the cloud cast on the title by the recording of the spurious conveyance.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeal — Probate Court — Bond Sufficient to Give Jurisdiction Although Not in Statutory Form. In an appeal from the decision of a probate court as to the right of contesting claimants to purchase a tract of school land, if an appeal bond be given which is not in the prescribed statutory form but is sufficient to give the district court jurisdiction the appeal should not be dismissed on motion therefor.</p> <p>2. -Proper Bond — Failure to Comply tuith Order Ground for Dismissal. In such case, the proper remedy is to require the appellant to give a proper bond, and upon his failure to comply with such order his appeal may be dismissed. -</p>

<p>Appeal from Shawnee district court.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Pleadings — Answer — Immaterial Allegations — Prejudicial Error. In an action by the appellant to recover premiums upon an insurance policy written for one year the appellee pleaded a preliminary verbal agreement for such insurance for six months only, for which it had paid the premiums in full. The ' answer contained allegations that the appellee, believing that the policy had expired, took out other insurance upon which it had received indemnity for losses occurring during the last six months of the year, for which the appellant would have been liable if its policy had been in force during that period. It is held that these allegations should have been stricken out on motion and that evidence admitted to prove them was prejudicial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Temporary—Notice. A temporary injunction,, which affects large pecuniary interests, should not be granted, nor should a receiver be appointed to take the possession and control of business and property from its owners, without notice to the parties to be affected and before they have had' an opportunity to be heard in relation to their rights, except, in cases of the greatest emergency.</p> <p>2. CORPORATIONS —■ Minority Stockholders — Dissolution. In the-absence of express statutory authority the court has no authority, at the suit of an individual or minority stockholder, to-dissolve a corporation, wind up its affairs and distribute its assets, and no such authority has been conferred in this state..</p> <p>3. - Appointment of Temporary Receiver Not Justifiable. Neither should a receiver be appointed to take temporary control of a bank and its business unless it is absolutely neeessary- and no other adequate remedy is afforded, and it should never be done where it is likely to do irreparable injury to others,, or where greater injury will probably result from the appointment than if none was made.</p> <p>4. --- Solvent Bank Not Subject to Receivership on Account-of Mismanagement. While a court may appoint a receiver on the application of minority stockholders, where the business of" the banking corporation has been so mismanaged as to render-it insolvent or where it is absolutely necessary to preserve the* property and business of the bank or the interests of the-> stockholders, a receiver should not be appointed to take the-control of a solvent bank because of irregularities or misconduct of officers, where such irregularities or misconduct may be corrected and cured by the board of directors or the bank commissioner, or are capable of adequate remedy by an injunction proceeding in a court of equity.</p> <p>5. - Misconduct of Officers No Warrant for Appointing a Receiver. The irregularities and misconduct of officers complained of herein are considered and are held not to have warranted the court in appointing a receiver to take the possession and control of the bank from its owners.</p> <p>6. -Payment of Attorneys’ Fees Not Warranted. Nor was there authority in the court to order the payment of the plaintiff’s attorneys out of the assets of the bank.</p> <p>7. -Power of Majority Acting in Good Faith. Under the law a majority of the stockholders have the control of a corporation and the majority of its directors have power to determine the policy to be pursued and to manage and direct its affairs, and the minority must submit to their judgment so long as the majority act in good faith and within the limitation of the law.</p>

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

<p>Appeal from Montgomery district court.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Constitution — Rules for Interpreting. A constitution must be interpreted liberally to carry into effect the principles of government which it embodies. It deals broadly with general subjects, and its language should not be interpreted in any narrow,. refined or subtle sense, but should be held to m.ean what the words imply to the common understanding of men.</p> <p>2. - Veto — Time within which It May Be Exercised. The words “if any bill shall not be returned within three days (Sundays excepted) after it shall have been presented to the governor” contained in section 14 of article 2 of the constitution, relating to thé veto power, would indicate to persons of common understanding that the governor should have three full working days to consider and act upon a bill.</p> <p>3. Time — Computation. The general rule (where the rule of the code does not apply) to include the day on which an act is done in computing time from or after an act or event, is not inflexible. When not expressly declared to be inclusive or exclusive the words “after,” “from,” “subsequent,” and the ■like, are susceptible of different significations, and are used in different senses, having an inclusive or exclusive meaning according to the subject matter, context, and the purpose to be accomplished.</p> <p>4. Governor — Time for Action on Bills — Three Bays Excluding-Bay of Presentation. Considering the policy of the constitution with respect to the enactment of laws and the probable understanding of the language in question by the people in adopting it, it is held that the three days limited for the action of the governor upon bills should be computed by excluding the day on which they are presented to him.</p> <p>5. Laws — When Complete. A law is not complete until it has been finally acted upon by the two houses of the legislature and by the governor, although the action of the latter may be only negative, as when he permits a bill to become a law by failing to return it within the prescribed time.</p> <p>6. Legislature — Recall of Bills — Governor Has Full Period on Second Presentation. Where the governor, at the request of the legislature or of either house thereof, has returned a bill before acting upon it, and the bill is again presented to him for his approval or rejection, he has the full period of three days thereafter to consider and act upon it.</p>

<p>Application for bail.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Insane Persons —■ State Hospital — Communicating with “Friends" — Bight of Attorney ,Acting Professionally. Section 8481 of the General Statutes of 1909, which provides that every patient admitted to a public hospital for the insane shall have all reasonable opportunities for communicating with his or her friends, does not confer upon an attorney the right to invade the hospital in a merely professional capacity for the purpose of seeing and talking with patients who have sent him word that they are of sound mind and desire him to secure their discharge.</p>

<p>Appeal from Greenwood district court.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Highways — Injury to Traveler — Amount of Award. In an action for injuries from a defective highway the plaintiff recovered, but appealed upon the ground that the amount awarded was inadequate; the verdict held not to be inconsistent with the facts found, and not to show passion or prejudice.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Specific Performance — Discretion of Trial Court. In an action for specific performance, held that the right to special find- ' ings was waived because they were not requested in time, that in the absence of such findings no distinct question of law is presented, and that it can not be said that the trial court abused its discretion in refusing a decree.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>Judgments — Consent—Appeal. The judgment appealed from held to be in effect one rendered by consent and therefore not subject to review.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Practice, Probate Court — Discretionary Matters. The probate court did not abuse its discretion in refusing to approve an appeal bond in a lunacy proceeding.</p> <p>'2. Mandamus — Judicial Acts. The writ of mandamus may be granted to require a court to exercise its jurisdiction and proceed to a hearing but it can not be used to control the decision a court shall make ñor require, it to exercise judicial discretion in a particular way.</p>

<p>Appeal from Jewell district court.</p>

<p>Appeal from Finney district court.</p>

<p>Appeal from Marion district court.</p>

<p>Appeal from Johnson district court.</p>

<p>Appeal from Wilson district court.</p>

<p>Appeal from McPherson district court.</p>

<p>Appeal from McPherson district court.</p>

<p>Appeal from Greenwood district court.</p>