Volume 9 — Kansas Court of Appeals Reports

<p>Gabnishmext — Mortgagee in Possession. Garnishment, under chapter 151, Laws of 1889 (Gen. Stat. 1897, ch. 95, §§227, 228; Gen. Stat. 1899, §§4450, 4451), is a separate, independent provisional remedy, governed entirely by the provisions of the act, and a garnishee is liable to the amount of the property, moneys, credits and effects in his possession or under his control belonging to the debtor, or in which he is interested, to the extent of the debtor’s right or interest therein at the time of the service of the summons. The garnishment cannot be defeated merely because the garnishee is a mortgagee in possession, and the amount of the mortgagor’s interest undetermined.</p>

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

Error from Wyandotte district court; Henry L. Alden, judge. STATEMENT. The defendant in error had a personal judgment against Ray, and a decree for the foreclosure of a mortgage, with a stay of six months under the statute.

<p>1. Stockholder’s Liability.—Proceeding by Motion—Necessary Parties. The proceeding under the statute against a stockholder to enforce his individual liability by motion for an execution is to all intents and purposes an independent proceeding, and the debtor corporation is not a necessary party to the action.</p> <p>2. -Limitation of Action or Proceeding. A cause of action in favor of a creditor of an insolvent corporation against the stockholder upon his individual statutory liability accrues when the creditor first has the right of action therefor, and he must in- ■ stitute the necessary action by suit or motion for execution within the period of the statute of limitations from the time he first could have enforced his demand.</p>

<p>Sheriff’s Sale — Separate Lots — Sale in Gross. The object to be accomplished in offering for sale distinct legal subdivisions of real estate, whether adjacent or separate, is that the same may be sold so as to invite .the fullest and freest competition. A sale in gross by a sheriff of two business lots, on a business street in a populous city, on one of which is a business house ready for occupancy, the other vacant and unimproved, is irregular, and may be set aside on motion of the judgment debtor, where it is made to appear reasonable that they would have brought more money if sold in separate lots.</p>

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

<p>1. Error — Incompetent Testimony — Admission Immaterial. The admission of incompetent testimony will not necessitate a reversal of a judgment where it is apparent that the party was not prejudiced thereby.</p> <p>2. -Defection of Testimony — Subsequent Proceedings. Reversible error cannot be predicated upon the rejection of competent testimony, where the party afterward examined the witness fully upon the matters rejected, or had an opportunity before the case was finally submitted to examine such witness fully concerning the same.</p> <p>3. -Instructions Examined. Instructions requested by the defendant and refused by the court examined, and held, that such instructions were given, so'far as applicable, in the court’s general charge to the jury, and the other portions of such instructions were properly refused.</p> <p>4. —-- Incomplete Instruction — Deficiency Supplied. Reversible error cannot be predicated upon an instruction given, which, standing alone, is incomplete, but when read in connection with the other instructions given covers all the grounds of complaint urged against it.</p> <p>5. - Overruling of Demurrer. This court cannot say that the trial court erred in overruling the defendant’s demurrer to the evidence, where the evidence tends to support every material allegation of the petition, and he .fails to point out any particular in which it fails to establish a prima facie cause of action.</p>

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

<p>False Representations — Damages—Instructions. In an action founded upon the alleged false and fraudulent representations of the defendant, it is not reversible error for the court to fail to instruct the jury that plaintiff cannot recover for incidental remote damage claimed, where the court properly instructs the jury as to the recoverable damages, and the verdict shows the award to . be within the pleadings, evidence, and instructions.</p>

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

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

<p>1. Criminal Law — Trial for Misdemeanor — Wilful Absence of Defendant. During the progress of a trial upon a complaint charging a misdemeanor, the defendant cannot by wilfully absenting himself oust the justice of jurisdiction to render a judgment upon the verdict; and an appeal from such judgment to the district court by the defendant confers jurisdiction upon that court of the case and the person of the defendant.</p> <p>2. - Dismissal of Count — Dieetion. The state, upon dismissing one count of a complaint charging several misdemeanors under the prohibitory laws, is not required to designate upon what specific sale it expected to rely for conviction upon the count it dismissed.</p>

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

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

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

<p>1. Oral Chattel Mortgage — Essential Elements. An agreement, to constitute a oral chattel mortgage, must contain all the essential elements and features ’of a written mortgage.</p> <p>2. -Passing of Title to Creditor — Possession of Property. In the agreement proved there is no contract that the property should be held or retained by the creditor until the amount of his claim should be paid. The contract does not amount to a mortgage; it is wanting in the essential agreement that the title to the property or specific interest should pass to the creditor subject to a defeasance.</p>

<p>1. Tíiumissory Notes—Fraud and Misrepresentation—Innocent Purchaser. Where notes are procured from the payors without consideration, through fraud and misrepresentation by the payee, and these facts were known to the holder of the notes prior to the time he came into possession thereof, he is not a bona fide purchaser for value. •</p> <p>2. -Demurrer—Evidence. Where there is testimony tending to prove every material allegation- of the defense that the notes in question were without consideration, and procured through fraud and misrepresentation by the payee, all of which was known to the holder of the notes, a demurrer to the testimony is properly overruled.</p> <p>3. Practice, District Court —Dismissal of Action. While the plaintiff has a right to dismiss without prejudice—-to withdraw from the jurisdiction he has invoked—the defendant, brought into court by summons, has no right to demand that the action be dismissed as to any proper party plaintiff.</p>

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

Error from Brown district court; R. M. Emery, judge. STATEMENT. Plaintiff in error sought to recover from defendants in error the possession of personal property sold and delivered by it to the defendant Swartz, and by Swartz mortgaged to the bank, on the ground that Swartz obtained the property by false and fraudulent representations.

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

<p>Negotiable Paper — Protest and Demand — Due Diligence. S., residing in Topeka, held a check on the Argentine bank. On Au-. gust 18 he transferred it by indorsement and delivery to M., who on the same day transferred it by delivery to T., and he indorsed and delivered it to a bank in Topeka; said bank indorsed and transmitted it for collection to a bank at Kansas City, Mo., by which it was received on August 19 and presented for payment. Payment was refused and protest had on August 20. On August 25 M. notified S. of the dishonor of the check and demanded repayment thereof. Held, that this notice was in proper time and showed due diligence.</p>

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

<p>Error from Douglas, district court; S. A. Riggs, judge.</p>

Error from Atchison district court; W. T. Bland, judge. STATEMENT. James Conlon sought to recover from the railway company the value of certain cows killed by a train upon the railway-track. He alleged that the railway company was negligent in the management of its train, and that the injury was the result of such negligence.

<p>Practice, Courts oe Appeals—Insufficient Certificate. Where a case is prosecuted in this court by petition in error upon a case-made, to which is attached a certificate reading: “The above and foregoing is all the testimony offered and rejected upon the trial of the said motion,” and the record does not purport to contain all the pleadings, motions, evidence, orders and proceedings in the trial court, nor sufficient thereof to present any question to this court, the record is wholly insufficient and the petition in error should be dismissed.</p>

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

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

<p>Rescission on Sale—Duty of Vendor. A vendor of land seeking a rescission of his contract of sale must refund the purchase-money received by him thereunder.</p>

<p>1. Forcible Entry and Detainer — Proof of Service of Notice. Upon a demurrer to the evidence, proof that'a notice was served upon the defendant will be taken as evidence that it was legally served.</p> <p>2. Statute or Frauds. Receipt for rent, with indorsement thereon, set forth, and held not to be such .an instrument as would be valid under the statute of frauds.</p> <p>S. Practice, District Court — Appeal—Submission of Special Questions. When a case is taken on appeal from a justice of the peace-to the district court, it is to be tried in the latter court according to the rules of practice therein, and not as if it were being tried before a justice of the peace.</p>

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

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

<p>1. Attachment — Action against Sheriff — Void Writ. In an action by a stranger to the writ, an attempted seizure of property under a void writ of attachment does not give the sheriff such a special interest therein as will enable him to attack the bona fides of a sale and delivery of such property.</p> <p>2. Practice, District Court — Security for Costs — Poverty Affidavit. A plaintiff may by showing his inability, through poverty, to comply with the rule requiring him to give additional security for costs excuse himself therefrom, and it is not error for the court in such case to relieve him from a compliance with the rule and permit him to proceed in the cause.</p>

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

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

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

<p>1. Personal Injury — Defective Area Way — Evidence. Alleged errors in the admission and exclusion of evidence examined. Held, (1) that the evidence admitted was competent; and (2) that the evidence excluded was either incompetent and properly excluded, or that the error in rejecting the offered evidence was cured by the findings of fact in favor of the defendant upon the contention in support of which the evidence was offered.</p> <p>2. -Instructions. Instructions given and refused examined. - Held, that upon the whole the court properly instructed the jury as to the law applicable to the case on trial.</p> <p>3. - Special Findings of Jury. Where the jury answer special questions submitted, “Don’t know,” “We do not know,” “Board defective, but time not known,” such answers are in legal effect findings in the negative upon such questions, and a motion that the same be made more specific, definite and certain was properly overruled.</p> <p>4. -Inconsistency — Material Issue. A special finding, in order to overcome a general verdict, must be upon a substantial material issue, and inconsistent with the general verdict.</p> <p>5. -Defective Area Way — Incomplete Finding. In an action for personal injury alleged to have been sustained by reason of a defective area way, or a defective door in such area way, a special finding by the jury that there was no patent defect in the particular board which caused the injury, in the absence of any finding as to whether the door or area way was defective, dangerous, or unsafe, will not necessitate a reversal of the judgment.</p>

<p>Error from Jackson district court * Louis A. Myers, judge.</p>

<p>1. Stockholder’s Liability—Dissolution of Corporation—Limitation of Action. A right of action in favor of a creditor of a corporation against a stockholder thereof, to enforce the constitutional liability of such stockholder, accrues only upon the dissolution of the corporation, as provided by section 49 of chapter 66, General Statutes of 1897 (Gen. Stat. 1899, § 1272). Suspension of business for more than one year, is equivalent to dissolution for such purposes under the provisions of section 45 of said chapter. The statute of limitations does not begin to run against such action until such dissolution, or the occurring of such facts as are equivalent thereto.</p> <p>2. -Evidence — Conflicting Special Findings. Where the findings of a jury upon an issue material to the decision of a case are wholly irreconcilable, a general verdict should be set aside and a new trial awarded. It is not necessary to maintain an action . under the provisions of section 49 that a creditor’s claim should be reduced to judgment. Proof that the corporation is indebted to the plaintiff is all that is required.</p>

<p>Fees and Salaries— Clerks of the Courts of Appeals. .The clerk of the suijreme court is authorized by law to. tax costs oil the'same basis that costs are taxed in the district courts by the clerks thereof, and the act creating the courts of appeals confers on their clerks the same power and authority.</p>

<p>1. Evidence—Direct and Cross-examination. It is not reversible error to allow a witness for the plaintiff who had in his direct examination testified that he had collected certain freight bills of the defendant to tell the amount he had so collected, on cross-examination.</p> <p>2. -Action for Fraud—Opinions of Third Parties. In an action to recover goods claimed to have been procured by the fraud of the purchaser, it was not error to exclude from evidence letters written by the vendor to parties in the vicinity of the vendee inquiring about his financial standing and their letters in answer thereto giving their opinions thereon.</p> <p>3. -Demurrer. The evidence in this case examined, and held, that the demurrer thereto was properly sustained.</p>

<p>Practice—Courts of Appeals—Former Decision in Same Case. When a case has been decided by this court and afterward comes here again by appeal or petition in error, the points of law already adjudicated become the law of the case.</p>

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

<p>Damages—Future Suffering —Hrroneows Instruction. In an action for personal injury it is reversible error to instruct the jury that if they find for the plaintiff they will allow her such an amount as will compensate her for her physical pain and mental anguish which she has suffered or may suffer in consequence of her injury.</p>

<p>1. Pleading—Action against Officer—Damages. In an action against a clerk of a district court for damages by reason of his negligently failing to enter a transcript of judgment upon the judgment docket or upon the index to the appearance docket, the plaintiff must allege and prove that he sustained damages by reason of such negligence.</p> <p>2. Abstracter—Liability for Errors. The liability of an abstracter for errors in his abstract and damages, resulting therefrom in this state extends only to the person for whom the abstract is made.</p>

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

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

<p>Error from Atchison district court; J. F. Tuets, judge pro tern.</p>

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

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

<p>Error from Atchison district court; H. M. Jackson, judge pro tem.</p>

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

Error from Douglas district court; S. A. Riggs, judge. STATEMENT. This case was tried by the court, a jury having been waived, at the May term, 1897, of the district court of Douglas county. The court made special findings of fact and conclusions of law, as follows: “1.

<p>Error from Atchison district court; Seneca Heath, judge pro tern.</p>

<p>Taxation — Special Assessments — Constitutional Provision. The special assessment authorized by law to be made upon the property benefited in cities of the first class for guttering and paving streets is a tax under the provisions of section 9 of article 15 of the constitution.</p>

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

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

<p>Practice, District Court — Contempt Proceedings — Insufficient Record. The designation of a motion filed by an attorney as “insulting and scandalous” is not sufficient, under section 12, chapter 85, General Statutes of 1897 (Gen. Sfcat. 1899, § 1935), requiring the court, on adjudging- one guilty of contempt without written accusation, to enter a judgment specifying the conduct constituting the contempt, but the language claimed to be insulting and scandalous should be set out.</p>

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

<p>Error from Atchison district court; W. T. Bland, judge.</p>

<p>Fraud—Equitable Proceedings for Relief—Jurisdiction. In a proceeding in equity for relief from fraudulent judicial proceedings, and for a recovery by the beneficiary for the wrongful death of a husband, where the court acquires jurisdiction of the parties and the subject-matter, it becomes the privilege and duty of the court to proceed with the case to final judgment and render such complete justice between the parties as may be warranted by the facts.</p>

<p>1. Railroads — Creation of Pasement. It is not necessary in this state to create a valid easement upon land that the writing be sealed or acknowledged.</p> <p>2. - Condemnation — Prior Occupation. A railroad company cannot by condemnation proceedings acquire for its right of way lands already occupied by another railroad company for the same purpose, notwithstanding the fact that such occupant has not acquired from the owner of the fee the right so to use the land either by condemnation proceeding or by conveyance of the title.</p> <p>3. - Condemnation Proceedings — Compensation ■— Injunction. Where one railroad company attempts by condemnation proceedings to obtain for its right of way the property of another railroad company, and in so doing conceals its real purpose and object by failing to describe in its petition or notice the particular tract of land it intends thereby to condemn, and its entire proceedings in condemnation show that its purpose is to obtain possession of the occupant’s right of way without making to it any compensation therefor, it is not error to hold such condemnation proceedings void and restrain the company from taking possession thereof or interfering with the possession of the occupant.</p>

Error from Atchison district court; J. P. Adams, judge pro tern. STATEMENT. This action was brought in the district court by Walters against Kaffer for the recovery of $300, with interest, on a non-negotiable promissory note, and for the recovery of $225, with interest, on an account.

<p>Landlord’s Lien — Removal and Sale of Crops. A removal of crops from the leased premises by the tenant and sale thereafter to a purchaser with notice of the landlord’s lien does not defeat the lien.</p>

<p>Implied Contract—Safe Appliances—Liability for Breach. Where one electric-light company purchases the plant of another company and continues its business, it impliedly contracts with its customers and the public that it will use such appliances and care as are known to the business to protect them from harm, and it is liable to any one who suffers damage from its failure so to do, and under the pleadings in this case this question was sufficiently raised.</p>

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

<p>1. Taxation — Floating-Hen Law—Assignment of Certificate. Chapter.114 of the Laws of 1881 (Gen. Stat. 1897, oh. 158, §§217-220; Gen. Stat. 1899, §§7372-7375), known as the “floating-lien law,” does not apply to a tax certificate assigned by a county to an individual, where the assignment is made less than one year prior to the expiration of three years from the date of sale.</p> <p>2. - Tax Lien—Strict Foreclosure. There is no authority, under our statute, for a strict foreclosure of a lien for taxes or betterments.</p>

<p>1. Evidence. — Incompetent Testimony — Prejudice to Substantial Rights. In order for the admission of incompetent testimony to constitute reversible error, it must appear that such testimony could in some manner prejudicially affect the substantial rights of the aggrieved party.</p> <p>2. - Verdict on Conflicting Testimony — Review. If a jury return a verdict against the clear weight of the testimony it is the duty of the trial court to set it aside and allow a new trial, but a reviewing court has no such prerogative. The findings of the jury upon oral conflicting testimony are conclusive upon a reviewing court if supported by competent evidence.</p>

<p>Practice, District Court — Supplemental Pleadings — Discretion of Court. The filing of an amendatory or supplemental pleading rests largely within the discretion of the trial court;’ it must be upon notice and by permission of the court.</p>

<p>1. Promissory Note — Extension of Time — Consideration. A proposition for an extension of the time for the payment of a note by the payee, to be valid, must be for a valuable consideration, accepted by the payor and relied upon by the payee.</p> <p>2. Pleading — Clerical Error — Waiver. Where a defendant in his verified answer inadvertently uses the word “mortgage” for “note,” and the case is tried without the attention of the pleader or the court having been called to the error, it will be presumed that the inadvertence was waived by the plaintiff.</p> <p>3. New Trial — Newly Discovered Evidence — Diligence. Before a motion for a new trial on the ground of newly discovered evidence will be sustained, it must appear that such evidence could not have been discovered before the trial by the use of reasonable diligence.</p>

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

<p>1. Limitation op Action — Petition—Demurrer. A demurrer to a petition is properly sustained where the petition shows upon its face that all of the alleged causes of action were barred by the statute of limitations at the time the action was instituted.</p> <p>2. -Action in Tort — Two-year Limitation. A cause of action for an injury to the rights of another, not arising upon contract, is barred in two years. (Gen. Stat. 1897, ch. 95, § 12, subd. 3; Gen. Stat. 1899, § 4262, subd. 2.)</p>

<p>Railroads — Private Crossings—Duty of Company. A landowner, through whose farm a railroad runs which practically divides the farm, has a reasonable right to maintain farm-crossings' at such places as the necessities of his farm demand, so that the same will not interfere with the paramount use of the right of way by the railroad, and the railroad company must keep and maintain gates, when necessary, in its right-of-way fence for such use.</p>

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

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

<p>1. Taxation—Railroad Property—State Board of Equalization. The provisions of paragraph 6928, General Statutes of 1889 (Gen. Stat. 1897, ch. 158, § 128; Gen. Stat. 1899', § 7269), requiring the state board of equalization to meet on the second Wednesday in July of each year, and, when organized, to proceed to examine the abstracts of property assessed for taxation in the several counties of the state, including railroad property, which shall be laid before said board by the auditor of state, and equalize the same by directing to be added to the amount of property so assessed in each county, or to be deducted therefrom, such rate per cent, as said board may deem equitable, is in compliance with the requirement of section 1 of article 11 of the constitution of the state that ‘ ‘ the legislature shall provide for a uniform and equal rate of assessment and taxation,” and is not limited to the purpose of raising state revenue only, but said assessment as so equalized is the basis upon which all taxes, local as well as state, should be levied.</p> <p>2. - Uniform and Equal Rate—Injunction. Where, by a violation of the provisions of law, one class of taxable property is charged with more than its proper proportion of taxes, an action of injunction is the proper remedy.</p>

<p>1. Trial by Court — Admission of Evidence — Immaterial Error. The admission of immaterial evidence by the court trying a cause without a jury will not be held reversible error unless it appears that the findings and judgment rest to some extent upon such evidence.</p> <p>2. Highways — Permanent Obstruction — Injunction—Pleading. An owner of land abutting upon a highway can maintain an action to enjoin a permanent obstruction thereof, although it is not alleged to be his sole means of ingress and egress.</p>

<p>Error from Cloud district court; F. W. St urges, judge.</p>

<p>Tax Title—Holder in Possession—Bents and Profits. One in possession oí land under a voidable tax deed need not account for rents thereof until he has been paid or tendered the taxes, interest and charges required for redemption.</p>

<p>1. Attachment—Wrongful Seizure—Liability of Plaintiff. The plaintiff in an action of attachment is not liable for the wrongful conduct of the officer in executing the writ, unless he directs or in some manner is responsible for the same. But where the plaintiff has notice of the claim of a third party to the property, causes the same to be sold, receives the proceeds of the sale and converts the same to his own use he adopts the action of the officer as his own, and is responsible to the party'injured for the value of the property or the value of his interest therein.</p> <p>2. -:— Evidence Examined. The evidence examined, and held, that the verdict and judgment are supported by the evidence.</p>

Error from Geary district court; O. L. Moore, judge. STATEMENT. Plaintiee in error sought to recover from the defendant in error the value of lumber taken by the- defendant in error and used, being the property of the plaintiff company. The petition alleges that the defendant wrongfully took possession of the lumber, and wrongfully converted the same to his own use.

<p>Practice, District Court —Appeal from Probate Court — Jurisdiction. In the trial of an action appealed by an administrator from the decision of the probate court in allowing a claim against an estate, the district court sits as a court of probate; it has no greater power or jurisdiction than had the probate court in the first instance. In such case it is incumbent upon the claimant to establish bis demand by competent testimony, the same as would be required of him in the probate court under section 88 of chapter 107, General Statutes of 1897 (Gen. Stat. 1899, § 2772).</p>

<p>Usury — Building and Loan Association Contract — Mortgage. Where a building and loan association, by correspondence, enters into a contract with one for the sale of some shares of its capital stock and for a loan of money, the purchase-price of the stock and principal and interest on the loan to be paid at the association’s office in New York, the loan to be secured by a mortgage upon real estate in Kansas and by an assignment of the association’s stock, and it is contracted that the stock at maturity of the loan shall be applied toward the payment of the mortgage debt then due, the borrower to pay “contribution of interest, premium, loan fund, expense fund, bonus, interest accrued, fines imposed,” which amounts altogether are in excess of the legal rate of interest, such contract is one contract, is- a Kansas contract, and is usurious.</p>

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

<p>1. Offices and Officers—Removal—Jurisdiction of Investid gating Committee. A legislative committee organized under the provisions of chapter 239 of the Laws of 1889 has no jurisdiction to investigate charges against an officer other than those submitted to it by the governor.</p> <p>2. -Method of Determining Quilt— Majority Vote. The committee is required by said act to determine the guilt or innocence of the officer against whom such charges are preferred by a majority vote of the committee, and cannot lawfully determine the same in any other manner.</p> <p>3. - Sufficiency of Charges — Power of Courts. It is within the province of the courts, at the instance of an officer whose removal from office is attempted under the provisions of said statute, to determine whether the charges upon which such removal is based are within the provisions of the statute and are sufficient to justify such removal.</p>

<p>Error from Clay district court; R. B. Spilman, judge.</p>

<p>Appeal from Smith district court; R. M. Pickler, judge.</p>

<p>Error from Osborne district court; R. M. Pickler, judge.</p>

<p>Error from Lincoln district court; R. P. Thompson, judge.</p>

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

<p>Error from Mitchell district court; N. M. Pickler, judge.</p>

<p>1. Criminal Law — Election—Subsequent Trial. The election by the prosecutor as to which transaction he will rely upon for conviction upon a criminal charge is made for that trial only, and does not limit the state to that particular transaction at a subse- , quent trial.</p> <p>2. -Evidence — Date of Offense. Where the state elected to stand for conviction “upon a sale of two glasses of beer, on July 4, 1898, to J. M. Kessler, as. testified to by him,” the exact time named is not a necessary ingredient of the crime and need not be proved.</p>

<p>Error from Clay district court; W. S. Glass, judge.</p>

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

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

<p>Justice’s Court — Appeal Bond — Obligee. An appeal bond, otherwise regular in form, is not void for the reason that the obligee is not named therein. '</p>

<p>1. Intoxicating Liquors—Sufficient Information. An information charging a misdemeanor in language as follows: “That on or about the 27th day of May, 1899, in the county of Cloud and state of Kansas, one F. T., whose true and correct name is to this informant unknown, if above is not correct, then and there being, without having first duly procured according to law, from the probate judge of Cloud county, Kansas, a permit to sell intoxicating liquors for medical; scientific and mechanical purposes, did then and there unlawfully sell and barter to one M. D. spirituous, malt, vinous and fermented and other intoxicating liquors, contrary to the law in such cases made and provided,” is sufficiently formal to support a verdict of guilty.</p> <p>2. Jurors—Exemption■—Personal Privilege. Reversible error cannot be predicated upon the action of the trial court in overruling a challenge for cause to jurors who are either ministers of the gospel, over sixty years of age, or school-district officers. The exemption of such persons from jury .service is a personal privilege only.</p> <p>3. -Lecturing by Gourt — Improper Language. It is reversible error for a trial court, in lecturing a jury upon the necessity of agreeing upon a verdict, to use language reflecting upon the want of intelligence upon the part of jurors.</p> <p>t. - Evidence of Guilt — Instruction. It is error for a trial court in a criminal case to instruct the jury: “If there is no evidence to support any of the counts, then you should acquit.” The instruction is not a correct statement of law upon which a jury may act.</p> <p>5, -Instructions. Alleged error in refusing to give instructions examined, and held, that the instructions, so far as applicable, were given in the court’s general charge to the jury.</p>

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

<p>Estoppel — Lessor and Lessee — Admissions by Lessor. A landowner who obtains possession of certain premises by reason of a notice containing certain admissions as to the rights of the occupant to crops growing thereon is estopped from denying the correctness of the admissions so made to the prejudice of said occupant who relied thereon.</p>

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

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

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

<p>Real Estate — Resulting Trust — Action for Conveyance. K. bought a quarter-section of land and went into the possession thereof, and has ever since continued in the sole and undisturbed possession of the same. At the time of said purchase the land was deeded to Z. who was to hold the legal title thereto until K. paid a certain mortgage thereon, which he had assumed as a part of the purchase-price, and afterward paid. Held, that, under the facts of this case, an enforceable trust resulted in favor of K., and a decree directing Z. to convey to him will not be disturbed.</p>

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

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

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

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

Error from Norton district court; A. C. T. Geiger, judge. STATEMENT. Simpson, in Ms lifetime, instituted this suit to recover the possession of personal property mortgaged to him by the defendants in error to secure the payment of an indebtedness evidenced by a promissory note. He obtained a judgment, which was reversed by this court on December 4, 1896. The case is reported in 5 Kan. App. 465, 46 Pac. 994.

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

<p>Reformation of Mortgage — Incorrect Description — Subsequent Purchaser — Notice. Where a mortgage upon real estate does not contain a correct description of any land, but the description therein contained is sufficient to indicate to any person familiar with such matters what was intended thereby, and the correct description is further indicated by a plat contained in the application for the loan secured by such mortgage, it is not error to decree a reformation of said mortgage and the foreclosure thereof, although the land was then owned by a subsequent purchaser.</p>

<p>1. Chattel Mortgage—Assignment. B. borrowed $2000 of S. and gave S. his promissory note secured by a mortgage on a quantity of wheat. B. afterward delivered part of the wheat to the mortgagee at an agreed price per bushel. A short time after such delivery the mortgagee executed the following assignment upon the back of the mortgage: “I hereby assign to J. D. L., or his assigns, the note by the within mortgage secured, and do hereby assign all my right, title and interest in the goods and chattels described herein.” Held, that S. owned the wheat at the time such assignment was executed and that the assignment was sufficient to transfer his title to L.</p> <p>2. - Title to Property—Finding of Jury. The question as to whether the defendant had acquired title to the wheat in controversy prior to the execution of the assignment to L, was fairly submitted to the jury under proper instructions and the jury found against the defendant. There was some evidence to support the finding, and the verdict, having been approved by the trial court, will not now be disturbed.</p> <p>3. - Instruction. The instruction complained of examined, and held, that, viewed in the light of the entire charge, the instruction was not misleading.</p>

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

<p>Reformation of Deed — Oral Agreement. The evidence fails to show an oral agreement for the conveyance of the land in controversy to the defendants in error, who seek a reformation of their deed, alleging a mutual mistake in the descriptive portion thereof; hence, as against the plaintiff, the owner of the legal title to the land, such deed cannot be reformed.</p>

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

<p>1. Breach of Warranty — Instructions. The instructions examined, and held, that in a clear and comprehensive manner they fully state the law applicable to the facts and the theory upon which the case was tried.</p> <p>2. Practice, Courts op Appeals —Review. Errors occurring during the trial and not called to the attention of the trial court will not be reviewed.</p>

<p>Trust Fund — Case Followed. The general finding in favor of the defendant in error brings the facts in this case within the rule laid down in Insurance Go. v. Caldwell, 59 Kan. 156, 52 Pac. HO, which case is cited and followed.</p>

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

<p>Fees and Sadabibs — Legislative Control — The state constitution does not by implication forbid legislative control over the salaries of county officers.</p>

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

<p>1. Action bob Assault—Admission of Evidence—Findings of Jury. Even if the court erred in the admission of expert testimony respecting the possible consequences of the blow received by the plaintiff, the error was without prejudice to the rights of the defendant, since it appears that the jury allowed nothing for permanent injuries.</p> <p>2. - Special Questions. The court did not err in refusing to submit certain special questions to the jury, or in refusing to allow certain questions asked on cross-examination of a witness for the plaintiff to be answered.</p> <p>3. -Findings Construed. Certain special questions were answered “We do not know,” and others, “We cannot answer.” Such answers are equivalent to findings against the party whose case needs the support of the alleged facts. (Morrow v. Comm’rs of Saline Co., 21 Kan. 352.)</p> <p>4. - Injury to Married Woman—Damages. Under the facts stated in the opinion, it was not error for the court to instruct that the jury might allow the plaintiff, who was a married woman, for the expenses of medical attendance necessitated by the injuries received.</p> <p>5. -Instructions Defused. From the special findings, it is clear that the error, if any, in refusing to give instructions asked for by the defendant did not influence the verdict.</p>

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

<p>Error from Sumner district court; James A. Ray, judge.</p>

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

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

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

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

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

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

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

<p>1. Practice, District Court — Garnishment—Case-made. In a garnishment proceeding under the statute both the plaintiffs and the garnishee excepted to the judgment of the court, and the court entered an order giving “both the plaintiffs and garnishee defendant . . . each ninety days from date within which to serve case-made upon the other defendants. Held, that the words “upon the other defendants” are mere surplusage and not words of limitation, and that under the order the garnishee was entitled to serve a case-made upon the plaintiffs.</p> <p>2. -- Certificate to Case-made — Parties. The certificate of the trial judge stated that the case-made was presented as a case-made in the original action and that the plaintiffs appeared by their attorneys and the defendants by their attorneys, while it was silent as to the garnishee, now plaintiff in error. Section 238 of the civil code (Gen. Stat. 1897, ch. 95, § 238; Gen. Stat. 1899, § 4460) provides that the.proceedings against the garnishee shall be deemed an action by plaintiff against the garnishee and defendant, as parties defendant. Held, that under said provision the certificate is sufficient.</p> <p>3. Chattel Mortgage— Sale of Mortgaged Property— Garnishment. A chattel-mortgage sale of a stock of merchandise was fair in all respects except that the stock was sold in bulk for less than its real value and was bought by the mortgagee. On the day of the said sale the plaintiff in error in good faith purchased the stock of merchandise from the said mortgagee, paying therefor the price it had brought at the mortgage sale. Held, that the plaintiff in error was not liable as garnishee in an action brought by the creditors of the mortgagors against the latter.</p>

<p>1. Indemnity Bond—Pleading—Repugnancy. The allegation in the petition and recital in the bond sued upon considered, and held, that the allegations in the petition are not so repugnant to the recital in the bond as to require the trial court to strike from the petition the allegations concerning the condition of the bond.</p> <p>2. -Payment by Obligee—Promissory Note. The obligee in an indemnity bond conditioned to save him harmless from any damages, cannot maintain an action thereon until he has, by the payment of the judgment against him, been damaged; payment may be made by the note of the obligee, if accepted as actual payment and satisfaction of the judgment.</p> <p>3. -Descriptive Addition to Signature — Evidence. Where a bond is signed" H. H. G., cashier,” the word " cashier ” is prima facie descriptive only, and extrinsic evidence is admissible to show how the word was understood as determining the character in which he contracted.</p> <p>4 -Agency — Power of Principal — Evidence. Where a defendant attempts to overcome his prima facie personal liability, on a bond signed “H. H. G., cashier,” he must show that the bond was signed for and on behalf of the bank, that the bank had the power to execute the bond, that he was authorized by the bank to sign it, and that these facts were well known and understood by the obligee.</p>

<p>Appeal from Reno district court; M. P. Simpson, judge.</p>

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

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

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

<p>Error from Sumner district court; J. A. Burnette, judge.</p> <p>STATEMENT.</p> <p>In this action the plaintiff in error, as plaintiff, sought to recover from the defendants in error four lots in the city of Conway Springs. The plaintiff claimed under a tax deed issued by the county clerk of Sumner county, and based upon a tax sale made for the taxes of the year'1888. The defendants, answered, admitting their possession of the premises and denying all other allegations of the petition. The final trial resulted in a judgment in favor of the defendants, the court holding the tax deed void. Findings of fact and conclusions of law as made by the court are as follows:</p> <p>“findings of fact.</p> <p>‘ 1. That the tax deed introduced in evidence by the plaintiff and under which the plaintiff claims title to the real estate in controversy in this action is regular upon its face, and, so far as anything contained in said tax deed is concerned, appears to be valid.</p> <p>“2. That the total amount of taxable property in Sumner county, Kansas, in the year 1888, as equalized by the state board of equalization, was $7,871,241.04.</p> <p>“3. That the amount of state taxes apportioned to Sumner county by the state board of equalization for the year 1888 was $32,272.09.</p> <p>“ 4. That the rate per cent, levied for state purposes in Sumner county, Kansas, on the taxable property in said county for the year 1888 was four and one-half mills.”-</p> <p>“conclusions of law.</p> <p>“1. That the rate per cent, levied for state purposes on the taxable property of Sumner county for the year 1888 was excessive and illegal.</p> <p>“2. That the. tax deed under which the plaintiff claims title to the property in controversy is void.”</p> <p>The evidence introduced by the defendants consisted of a certificate from the auditor of state dated August 1,1888, showing the apportionment of the state taxes for Sumner county for that year, and a certain paper prepared by the county clerk as a memorandum sheet, whereon the tax levies for various purposes in that year were set forth, and which showed the state levy to be four and one-half mills. The plaintiff objected to the introduction of the foregoing evidence, but the objection was overruled. In rebuttal, the plaintiff offered to prove from the public records that the lots in question were valued at the sum of fifteen dollars each in 1888 for the purpose of taxation ; and that in the calculation of the taxes to be levied against such lots each lot was taxed for the state, county, and all other purposes except for school purposes, eighty-six cents when the property tax against each lot under the levy should have been eighty-six and one-fourth cents. The court refused to receive the offered evidence.</p>

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

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

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

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

<p>Error from Sumner district court; James A. Ray, judge.</p>

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

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

<p>1. Counts' Treasurer— Vacancy — Successor. When a person has been duly appointed to fill a vacancy in the office of county treasurer and has duly qualified and demanded possession of the office he is entitled to the office and to receive the salary as such treasurer thereafter.</p> <p>2. - Temporary Appointment. A person temporarily acting as county treasurer who refuses to turn the office over to the person entitled thereto until the accounts are checked up and settlement made with him and the representative of the former treasurer is not thereafter entitled to act as county treasurer or receive the salary provided therefor.</p> <p>3. - Compensation of Acting Officer. Whether such person is entitled to compensation for the services actually rendered is not raised or decided.</p>

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

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

<p>1. Fire Insurance — Parol Contract — Statute of Frauds. A parol agreement, terminable at any time upon notice by either party, that a fire-insurance policy shall be renewed from year to year, is not void under the provisions of the statute of frauds.</p> <p>2. -Valid Contract — Statutory Provisions. In the absence of any statutory provision to the contrary, a parol contract to insure is valid.</p>

<p>Practice, District Court—Proceedings after Reversal. Permission to file amended pleadings in the district court, after a case has been reversed and remanded by the supreme court, ia largely within the discretion of the trial court, and the exercise of such discretion will not be reviewed unless it clearly appears to have been abused.</p>

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

<p>Practice, District Court — Admissions in Pleadings — Withdrawal— Estoppel. “A party having- once solemnly admitted a fact, and made it a part of the record by his pleadings, cannot, after such admission, by merely withdrawing the paper containing the admission from the files of the court, deny such admission, but is estopped thereby.” {Oarr v. Huffman, 1 Kan. App. 719,41 Pac. 984.)</p>

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

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

<p>Practice, Courts oe Appeals — Absence of Evidence from Record. Where the evidence upon which error is based is not incorporated in the record the assignment of error cannot be considered.</p>

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

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

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

<p>Contract or Sale — Pleading. Where, in an action brought to recover the purchase-price of goods, it clearly appears from the petition that the contract sued upon was an executory contract, such petition does not state facts sufficient to constitute a cause of action.</p>

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

<p>Carriers oe Goods — Bills of Lading — Subrogation. A common carrier negligently issued bills of lading to B., thereby clothing him with evidence of the ownership of certain personal property, of which it knew that B. was wrongfully in possession. Afterward B. transferred the bills to C., the only consideration for the transfer being the surrender and cancelation by C. of a past-due note, of which B. was the maker and C. the payee. The carrier brought suit against C. to recover the proceeds of the goods obtained by C. upon the bills, claiming that it had been subrogated to the rights of the original owner of the goods. Held, that before the carrier could recover it must place C. in statu quo.</p>

<p>.. Practice, District Court—Demurrer after Answer. After answer filed, it is within the discretion of the court to entertain a demurrer to the petition, upon the ground of a misjoinder of causes of action.</p> <p>!. -Amended Answei—Waiver of Error. Error, if any, in sustaining a demurrer to an amended answer is waived by filing a second amended answer.</p> <p>5. Fraud—Acts and Declarations—Intent. The intent to defraud is shown by acts and declarations, and if a party is guilty of an act which defrauds another, his declarations that his intentions were honest cannot be taken as sufficient to overthrow the act.</p> <p>1. -Evidence Sufficient. The evidence of plaintiff examined, and held, that the court did not err in overruling defendant’s demurrer thereto.</p>

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

<p>| National Banks—Reception of Deposits — Insolvency—State ! Laws. The provisions of chapter 47, Laws of 1879 (Gen. Stat. 1897, ch. 18, §74; Gen. Stat. 1899, §471), entitled “An act making officers of banking institutions responsible for the reception of deposits or the creation of debts, when such, bank is insolvent or in a failing condition,” are not applicable to national banks and their officers.</p>

<p>Appeal from Butler district court; C. W. Shinn, judge.</p>

<p>1. Townships—Judgment—Execution. An execution can be issued upon a judgment against a township, and, at least, property not used for public purposes can be levied upon and sold thereunder.</p> <p>2. - Supersedeas Bond—Statute of Limitations. A supersedeas bond executed on behalf of a township will stay the issuance of an execution upon a judgment against a township, and suspend the running of the statute of limitations while it is operative.</p>

<p>1. Conveyances — Insane Person — Cases Followed. The cases of Gh'ibben, Guardian, v. Maxwell, 34 Kan. 8, 7 Pac. 584, and Leavitt, Guardian, v. Files, 38 id. 26, 15 Pac. 891, cited and followed as to a mortgage or conveyance signed by an insane person.</p> <p>2. Practice, District Court — Questions of Law — Decision by Court. Where no question of fact arises in a case, and the only question to be decided is one of law alone, it is not error for the trial judge to discharge the jury and decide the case. '</p> <p>3. Interest — Rate after Default. Prior to May 25,1889, a note providing for the payment of interest, or a higher rate of interest, as a penalty for default, was valid as to twelve per cent, interest per annum.</p>

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

<p>1. Statutes—Effect of Repeal. The repeal of a statute does not affect any, right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced under or by virtue of the statute repealed.</p> <p>2. Ordinances—Rule of Construction. The rule for the construction of ordinances is the same as for the construction of statutes.</p>

<p>Chattel Mortgage — Correction of Mistake — Delivery of Possession. Where the parties to .a chattel mortgage, by mistake, execute the same upon wheat and straw grown and being upon a certain tract of land, when in fact it was grown and situated upon another tract of land, the mistake may be corrected by the voluntary delivery of the property by the mortgagor to the possession of the mortgagee before any specific rights or liens of other persons have been acquired.</p>

<p>Homestead—Oeeupaney—Seasonable Time. “A purchase of a homestead with a view to occupancy, followed by .occupancy within a reasonable time, receives from the time of purchase a homestead exemption from seizure upon execution or attachment.” (Monroe v. May, 9 Kan. 466.)</p>

<p>Mortgage Foreclosure — Deficiency Judgment — Case Followed. The decision of the supreme court of this state in Whitmore v. Stewart, 61 Kan. 251, 59 Pac. 261, holding invalid an order of the district court directing the cancelation of a deficiency judgment in a foreclosure action, where such judgment was not attacked or questioned by any party to the suit, followed.</p>

<p>Railroads—Unlimited Ticket—Sights of Passenger.. A railroad ticket, containing provisions respecting time limitation, non-transferability, etc., and an unsigned space for the signature of the purchaser, is prima facie unlimited, notwithstanding the presence of punch-marks in the margin indicating a time limitation; and such punch-marks in the margin should be disregarded by the conductor of a train operated by the selling company where such ticket is presented, after the time limit so indicated has expired, by a passenger who claims, in apparent good faith, to have purchased it as an unlimited ticket" and to have had no previous knowledge of a purported limitation.</p>

<p>1. Damages — Leakage of Gas —Injury to Vegetation —Evidence. Plaintiff below offered testimony to prove that gas permeating the soil would destroy vegetation; to the introduction of such testimony defendant objected, upon the ground that it was not based on facts proved, or facts which the evidence tended to prove. Evidence was introduced by plaintiff which tended to show that the surface of the soil claimed to have been permeated by gas was packed hard by travel over it, and was also frozen during part of the time during which it was alleged that the gas escaped from, defendant’s pipes; that the soil at a depth of three or four feet was sandy and loose, and that there actually was a leak in the gas-pipe near the soil in which the vegetation destroyed was growing. Held, that there was sufficient evidence upon which to base the testimony objected to.</p> <p>2. --— Meal Estate — Measure of Damages. Plaintiff below sought to recover damages for injuries to his real property caused by the destruction of certain shade-trees, shrubbery and grass growing thereon. Held, that, under the facts of the case, the proper measure of damages was the fair market value of the property immediately before and immediately after the injury complained of.</p> <p>3. -- Instructions. The instructions complained of examined, and held, that they fairly state the law applicable to the facts of the case.</p>

<p>Jurisdiction — Courts of Appeals — Amountin Controversy. When a common carrier holds possession of goods to enforce its lien for freight, and the owner tenders a portion of the amount demanded, and brings replevin to recover the goods, the amount or value in controversy is the difference between the amount demanded and the amount tendered.</p>

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

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

<p>Practice, District Court — Injunction—Another Remedy. A petition for a temporary injunction, restraining the sale of real estate upon execution until the judgment supporting the execution could be opened, under section 78 of the code (Gen. Stat. 1897, ch. 95, § 78; Gen. Stat. 1899, § 1327), providing for the opening of a judgment where service of summons is obtained by publication only, held demurrable, since the relief sought by injunction is obtainable by opening the judgment.</p>

<p>1. County Warrants—Payment in Order. It is the duty of the county treasurer to pay warrants in the order of their registration, as required by section 108, chapter 27, General Statutes of 1897 (Gen. Stat. 1899, § 1623).</p> <p>2. - Case Followed. Section 1 of the syllabus in Bank v. Morton County, 7 Kan. App. 739, 52 Pac. 580, cited and followed.</p>

Error from Finney district court; ¥m. Easton Hutchison, judge. STATEMENT.

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

<p>1. Fraud — Case Followed. The case of National Bank v. Beard, 55 Kan. 773, 42 Pac. 320, followed.</p> <p>2. Practice, District Court— Giving of Instructions. If the instructions given were wanting in fulness of statement of some proposition of law, or in completeness of definition, it was the duty of the party desiring more complete instructions to have requested the same; and, in the absence of such request, the instructions'given stand as the law of the case for that trial.</p>

<p>Practice, Courts ob Appeals — Service of. Summons in Error. In proceedings in error, service of summons in error may be made upon the defendant in error or upon his attorney of record in the original case, but such service must be made as in the commencement of an action, by delivering a copy of the summons in error to the defendant in error or his attorney of record personally or by leaving one at the usual place of residence of the party served.</p>

<p>Action nob Rent — Instructions. The instructions complained of set forth, and held, under the facts, that they are not misleading, and fairly present the law applicable to the facts and the issue submitted.</p>

<p>1. Replevin—Pleading. In a replevin action, under a general denial, the defendant may prove any defense that he may have.</p> <p>2. Practice, Courts oe Appeals—Theory in Trial Court—Review. Cases are reviewed in this court upon the theory upon which they were tried in the district court, and a theory of defense that was not presented at the trial will not be reviewed by the court of appeals. .</p> <p>3. Findins oe Jury—Question of Fact—Review. Where a question of fact is presented to a jury upon proper instructions, and the evidence is conflicting, the finding will not’be disturbed.</p> <p>4. Replevin—Evidence. The evidence examined, and held incompetent but not prejudicial.</p>

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

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

<p>Practice, Courts or Appeals — Review of Verdict — Disregard oj Instructions. A verdict found in manifest disregard of the instructions will not be approved by this court, notwithstanding the • trial court has entered judgment thereon, where the question is duly presented for our decision.</p>

<p>1. Contract or Sale — Construction. The contract set out herein construed to be a contract of sale and not a contract of partnership.</p> <p>2. -Action Premature. The action upon the contract was prematurely brought.</p>

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

<p>Principal and Surety — Bank Deposits — Release of Surety. Where a bank is the owner and holder of a promissory note signed by D. as principal and E. and E. as sureties, its failure to apply the moneys which D. had on deposit in said bank subsequently to the maturity of the note to its payment will not release the sureties.</p>

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

<p>1. Contracts — Agency—Ratification—Failure to Repudiate. A person may become bound by a contract which another, without authority, has assumed to make in his name, by knowingly accepting its benefits or by failing to repudiate it after he has full knowledge of all the facts.</p> <p>2. Fire Insurance — Additional Insurance — Acceptance of Benefits. In the absence and without the knowledge of H., the plaintiff’s assignor, his wife procured additional insurance on the property covered by the policy sued upon herein, 'which contained á provision rendering it void if additional insurance should be procured without the insurer’s consent indorsed thereon, and after loss of the insured property by fire H. received the benefits of the additional insurance. Held, that acceptance of the benefits of the unauthorized act was a ratification thereof, relating back to its date and binding H. and assignee to the same extent as if he had himself procured the additional insurance.</p> <p>3. -Forfeiture — Collection of Premium. Where a policy of fire insurance is forfeited by the acts of the insured after part of the premium has been earned the entire premium is treated as earned, and its subsequent collection by the insurer is not a waiver of such forfeiture.</p>

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

<p>Sales — Contract of Warranty — Waiver of Claims for Damage. When a vendee, for a valuable consideration, and with full knowledge of all the facts, executes, in writing, a waiver of all damages, supposed or real, that he may have against his vendor upon a contract of warranty, he is bound by its terms.</p>

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

<p>Practice, Courts or Appeals—Pleadings and Evidence—Statements of Counsel. Under the instructions, which are not complained of, the issues for determination by the jury were those arising only upon the pleadings and the evidence introduced, and therefore certain statements of the plaintiff’s counsel as to the contents of the petition cannot be regarded by this court in determining whether the verdict is supported by the evidence.</p>

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

<p>Fire Insurance — Encumbrances—Forfeiture. A policy of insurance provided that“. . . upon the commencement of foreclosure proceedings against; ... or the existence of a mechanic’s or judgment lien upon; . . . without written notice to and the consent of the company indorsed hereon, this policy shall in each and every instance be void.” The policy also contained a provision to the effect that “should the property be sold or encumbered or otherwise disposed of, written notice should be given to the company of such sale, encumbrance, or disposal, and its assent thereto indorsed thereon,” otherwise the insurance on such property should immediately terminate. Held, that the policy was not forfeited by the recovery of a judgment in invitum against the insured during the life of the policy and prior to the destruction of the property insured, and that the provision against encumbrances is construed to mean voluntary encumbrances only.</p>

<p>Replevin—rosa: Peed—Title to Meal Property. It is not proper to make a replevin action the means of litigating and determining the title to real property as between the original owner and the tax-title claimant in adverse possession of the premises under a tax deed valid on its face.</p>

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

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

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

<p>Fraudulent Conveyance — Pleading — Finding of Court — Judgment. When the petition alleges fraud in the execution of a note and mortgage, and asks to have them set aside and the real estate so mortgaged subjected to the judgment of the plaintiff, and the answer is a general denial and an avoidance, to which the reply is a general denial, a finding by the court that the note and mortgage were given for a bona fide debt due from the mortgagor to the mortgagee entitles the defendant to a judgment for costs.</p>

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

<p>1. Summons— Writ of Replevin — Service. The errors relating to the service of summons and service of writ of replevin set forth, and held not sufficient to require a reversal of the case.</p> <p>2. Instructions— General Charge — Special Request. A general charge given by the court to the jury having fairly presented the proposition involved, the failure of the court to instruct as to a phase of the case upon which an instruction might have been given, but which was not requested, is not ground for reversal. {Phinney v. Bronson, 43 Kan. 451, 23 Pac. 624.)</p>

<p>Payment—Remittance by Mail—Insufficient Address. A. enclosed a draft in an envelope which, was properly stamped and addressed to B. at Chicago, 111. A. knew the street and number of B. but did not, so far as the evidence shows, place any address upon the envelope but B.’s name and the words “Chicago, 111.” Meld, that the latter was not so addressed that a jury would be warranted in drawing an inference that it was actually received by B.</p>

<p>1. Evidence—Bes Gestee—Statement of Agent. In an action to recover damages resulting from failure to deliver promptly a telegram addressed to the plaintiff’s attorneys and concerning the bringing of an attachment action, held, that a statement respecting such failure made by the agent of the telegraph company at the receiving office to the said attorneys when handing them the telegram three days after its date, w.as a part of the res gesta}, and was properly admitted in evidence.</p> <p>2. Attachment—Statutes of Arkansas—Construction. Section 3 of chapter 17, Gould’s Digest of the Statutes of Arkansas (1858), enlarged the apparent scope of section 1 thereof so that an attachment might be obtained not only against one who was a non-resident, but also against one who was about to remove out of the state, or about to remove his goods and effects out of the state, or who was secreting himself so that the ordinary process of law could not be served upon him.</p> <p>3. Instructions—Befusal. An instruction must be good as asked, or it is not error to refuse it. (Dickson v. Randal, 19 Kan. 215.)</p>

<p>Practice, Courts oe Appeals — Transcript—Insufficient Certificate. Where a case is brought to this court upon a transcript, the clerk’s certificate thereto must show, in substance at least, that it is a true and complete transcript of the record of the proceedings had in such case in the district court. A certificate which merely states that the transcript contains true and correct copies of certain papers, naming them, is insufficient.</p>

<p>1. Townships — Public Highway — Evidence. Evidence that a road has been used and traveled by the public and kept in repair by the road overseer of the district in which it is located is sufficient, prima facie, to establish the existence of such road as a public highway.</p> <p>2. -Defects in Highway — Knowledge of Trustee. Actual knowledge on the part of a township trustee of a patent defect in a public highway located in his township is sufficient to satisfy the requirement of section 48, chapter 42, General Statutes of 1897 (Gen. Stat. 1899, § 579), relating to notice.</p> <p>3. -Action for Damages — Evidence of Other Accidents. In an action against a township to recover damages for the death of plaintiff’s husband, alleged to have been caused by the defective and dangerous condition of a public highway in said township, it is competent for plaintiff to show that, while the highway was in the same condition, accidents similar to that which caused the death of her husband occurred at the same place.</p>

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