Volume 97 — Kansas Reports

<p>SYLLABUS BY THE COURT.</p> <p>1. Attachment — Replevin—Tender of Property to Owner. Findings of fact relating to a tender of property examined and found to justify the refusal of a peremptory instruction that no tender had been made.</p> <p>2. Same — Verdict Sustained by Evidence. Evidence examined and found sufficient to sustain the verdict.</p> <p>S. SAME — Tender—Instructions. Instructions pertaining to the sufficiency of a tender of property used in well drilling examined and held to be a fair statement of the law so far as concerns the appellant.</p> <p>4. Same — Sufficient Evidence of Tender: Some well-drilling property on part of which the plaintiff held a mortgage and on part of which it held a bill of sale was attached by the sheriff at the instance of a lumber company to satisfy a debt of the operators of the drilling machinery. The plaintiff brought replevin, and a redelivery bond was given. The well-drilling property, being large and unwieldy, was being kept out-of-doors at the time these proceedings began, and it was not physically disturbed by the sheriff in the service of the attachment process. A few days after the redelivery bond was given, the plaintiff’s agent was tendered a return of the property by the manager of the lumber company, who was also the sheriff’s representative, who said: “If they are your machines, take them.” Held, a sufficient tender of the return of the property.</p> <p>5. Same. The foregoing was a sufficient tender although the sheriff’s representative and attaching creditor also declared that he would only pay such damages as a judge and jury might determine.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Geary district court; Roswell L. King, judge.</p>

<p>OPINION DENYING A REHEARING.</p> <p>SYLLABUS BY THE COURT.</p> <p>Loan to Bank — Individual Note of Cashier — Liability of Bank. A bank loaned another bank the sum of $3500. The cashier of the borrower gave'his individual note to the lender, not as consideration for the loan, but for stated reasons making that course advantageous to the borrower. Held, the borrower was under legal obligation to repay the money although its name did not appear on the note and nothing on the note indicated the borrower’s relation to the transaction.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Brokers — Oral Contract for Commission — Evidence Sustains Verdict. A written contract between brokers and the owner of lands to procure a purchaser for them was superseded by an oral contract, and a dispute between the parties as to the conditions contained in the oral contract was determined by the jury in favor of the brokers. Held, that the evidence in the case supports the verdict and judgment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Contract — Action for Commissions — Bills of Particulars — ■Evidence•—• Trial. The bills of particulars of plaintiff and defendant, their written contracts and the evidence examined, and no error is perceived in overruling plaintiff’s demurrer to defendant’s evidence nor in the judgment in defendant’s favor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Education and Maintenance of Minor Children — Duty of Parents. The duty and responsibility of parents for the maintenance and education of minor children are not altered by the rendition of a decree of divorce in which no provision is made for the children, and the obligation of the father therefor is not canceled by the fact that the divorce was granted to him because of the fault of the mother.</p> <p>2. Same — Children Maintained by Mother — May Recover Her Expenditures from the Father. In such case and where the father neglects to provide for the maintenance and care of the minor children and leaves that burden entirely to the mother she is entitled to recover from him a reasonable amount for the expenditures she has made in providing for their care and support.</p> <p>3. Same — Proper Action by Mother for Relief. While an independent action may be maintained by the mother for such relief, the more appropriate and complete remedy is by opening the decree of divorce wherein an allowance may be made for past as well as future support of the children.</p>

<p>Appeal from Crawford district court; Andrew J. Curran, judge.</p>

<p>Appeal from Reno district court; Frank F. Prigg, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Deed — Valid Delivery before Death of Grantor. A father executed and acknowledged a warranty deed conveying a farm to a minor son aged nineteen years, and told the notary to keep the deed until he called for it, that he was not going to record it. Less than four weeks later, during his last illness, he directed his brother and the grantee to get the deed and record it, which they did a few days afterward and following his death. During his illness he stated that he intended the grantee to have the farm because he believed his son, who was the eldest of the children, would keep the family together and pay off an existing incumbrance. Held, sufficient to sustain a finding of the trial court that the deed was delivered.</p>

<p>Appeal from Sedgwick district court, division No. 1; Thomas C. Wilson, judge.</p>

<p>Appeal from Scott district court; Albert S. Foulks, judge.</p>

<p>Appeal from Sedgwick district court, division No. 1; Thomas C. Wilson, judge.</p>

<p>Appeal from Franklin district court; Charles A. Sm:art, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraudulent Conveyance — Creditor’s Bill — No Laches in Commencing Action. A petition asking that lands fraudulently conveyed be subjected to the payment of a judgment against the grantor is not rendered demurrable by the fact that it shows two years and eight months to have elapsed between the execution of the deed and the filing of the petition, where it contains allegations that during all that time the action on the plaintiff’s original claim was pending, although no reason is given for its not having been brought to an earlier conclusion.</p> <p>2. Same. Where the original demand is sued upon in due time, and an action in the nature of a creditor’s bill is brought promptly upon the obtaining of judgment, the plaintiff is not to be denied relief on the ground that he failed to prosecute his case with due diligence, merely because several continuances were brought about by his consent, or by the mistake, or even misconduct, of his attorney.</p>

<p>Appeal from Montgomery district court; Thomas J. Flan-NELLY, judge.</p>

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

<p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Shipping Live Stock- — Privilege of Unloading En Route “To Test the Market” — Contract Preferential and Discriminatory. Where cattle were billed and shipped from Belvidere to Peabody at che regular rates' which had been published and filed with the public utilities commission, a special contract granting to the shipper the privilege of stopping the cattle at Wichita to test the market and to terminate the journey at that point if the market was satisfactory and to continue the transportation to original destination if the market was unsatisfactory was preferential and discriminatory and violated the railroad and utilities acts.</p> <p>2. Same — Tariffs Filed with Public Utilities Commission Control. Where the tariffs of the carriers filed with the public utilities commission specify the points at which live stock may be stopped-in transit to test the market, any special contract enlarging that privilege which is not specified in such tariffs is void.</p> <p>3. Same. Before a special privilege to stop cattle in transit to test a market en route can be granted by a railroad company it is necessary that the tariffs and schedules pertaining thereto must be filed with the public utilities commission, and be open to all shippers on equal terms.</p>

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

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

<p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Will — Not Filed for Probate — Certain Heirs Estopped from Claiming by Inheritance. The heirs of a deceased person are estopped from claiming any part of the estate by inheritance where by their conduct they have induced the widow, to whom all the property was devised, not to probate the will, and the will is not probated for more than three years after the death of the testator, although in the power and control of the devisee during all that time.</p>

<p>Appeal from Cloud district court; John C. Hogin, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Money Deposit — In Lieu of Bail — Surrender of Defendant — Ownership of Money Deposited. The money deposited in lieu of bail by a third person to secure the release of one arrested and required to appear to answer a criminal charge is not conclusively regarded as the defendant’s money, and when the purpose for which the deposit has been made is accomplished and the obligation discharged, or there has been a surrender of the defendant, the money is to be returned to the owner.</p> <p>2. Same — To Whom Defendant May be Surrendered. A surrender of the defendant may be made to a general deputy of the sheriff, and the mere fact that a defendant has been placed under arrest ,by another officer because of the commission of another offense, shortly before an attempt to surrender was made, did not of itself render the attempted surrender invalid.</p> <p>3. Same — Effective Surrender of Defendant by Bondsman. Shortly after the defendant had been released from custody by the giving of a deposit he was arrested for another offense, and the officer who made the arrest, at the request of the surety who made the deposit, went with the defendant to the courthouse and in the presence of a deputy sheriff and the clerk of the district court made a formal offer of surrender which was accepted by the deputy sheriff who then took the defendant into his custody, and thereupon the clerk of the district court issued a check to the surety for the amount of the deposit, and the surety in turn signed and delivered a receipt- to the clerk for the money so returned. Shortly afterward payment on the check was stopped. Held, in an action brought by the surety to recover the money he had deposited instead of bail, that the deputy sheriff had authority to accept the surrender of the defendant and that the surrender was effective although neither the sheriff nor his deputy acknowledged the surrender in writing.</p> <p>4. Same — Nonappearanee of Defendant — Declaration of Forfeiture— Ownership of Deposit Money Not Affected. A subsequent declaration of forfeiture because of the nonappearance of the defendant, made by the district court, to which proceeding the owner of the deposit was not a party and of which he had no notice, did not affect such owner or estop him from maintaining an action to recover the deposit.</p>

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

<p>Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgage — Satisfaction—Special Contract — Expense of Recording Release Payable by Mortgagor — Contract Valid. Notwithstanding the provisions of section 5202 of the General Statutes of 1909, which requires that when a mortgage on real estate has been paid the mortgagee or his assignee shall cause satisfaction thereof to be entered of record “without charge,” the parties may bind themselves by an agreement that the mortgagee shall execute and deliver a release when the mortgage is paid, which shall be recorded at the expense of the mortgagor.</p> <p>2. Same — Expense of Recording Release — Special Contract — Question for Jury. In an action by the grantee of the mortgagor to recover the statutory penalty, the mortgagee interposed as a defense an agreement between the parties to the mortgage that the cost of recording the release should be paid by the mortgagor and that a release had been executed and delivered to him when the mortgage was paid. Evidence was offered in support of the further defense that the correspondence between the plaintiff and the defendant misled the latter as to the particular mortgage the plaintiff desired released. Held, it was error to take the ease from the jury and to render judgment for the plaintiff.</p> <p>3. Same — Amount of Attorney’s Fee■ — Question for Jury. It was error for the court to refuse to submit to a jury the question of the amount of attorney’s fees in such an action.</p>

<p>Appeal from Finney district court; George J. Downer, judge.</p>

<p>Appeal from Finney district court; George J. Downer, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Will — Bequest—Identification of Beneficiary. Findings of fact examined and held to sustain the judgment rendered.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Statute — In Aid of High Schools in Certain Counties — Constitutional. Whether the provisions of sections 5 and 12 of chapter 263 of the Laws of 1911, attempting to limit the operation of the act by excluding therefrom certain counties having a population of 3000 or less and counties where high schools were already in operation under .previous statutes, are unconstitutional is not decided, but it is held, independent of these sections, the act as a whole is not unconstitutional.</p> <p>2. Same — Aid to High Schools — ■Levy of Taxes — Respective Duties of County Superintendents and County Commissioners. The language of section 11 of chapter 263 of the Laws of 1911, declaring it to be the duty of the county superintendent in counties governed by the act to certify to the county commissioners and the county treasurer on or before the first day of July in each year the amount of money necessary to aid 'a district to maintain a high school “for the year ending on the 30th day of June preceding,” and making it the duty of the county board to make, such levy, is construed to mean that the amount certified and levied shall be the amount necessary to aid the district to maintain the school for the succeeding year.</p>

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

<p>Appeal from Wyandotte district court, division No. 3; Hugh J. Smith, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Assignment — Proceeds of Contract — Valid as Against Garnishment. Where a defendant corporation assigned to a bank the proceeds of a contract due and to become due for furnishing materials and labor to a building contractor, such assignment is valid as against a garnishment of the funds in the hands of the building contractor.</p> <p>2. Same — Assignment Did Not Create Chattel Mortgage. Such an assignment is not a chattel mortgage requiring registration to be valid against the claim of another creditor proceeding by writ of garnishment.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Street Cars — Moving in Opposite Directions on Parallel Tracks — Personal Injuries — Contributory Negligence as a Matter of Law. Under the facts stated in the opinion it is held that a passenger on a northbound street car who alighted while the car was in motion and before it reached the place for the discharge of passengers, passed around the rear end of the car and was struck by a southbound car moving on a parallel track, was guilty of contributory negligence as a matter • of law.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Punitive Damages as Basis of Appeal — Herd Law. A contention that punitive damages should be allowed in an action under the herd law of 1874 denied, but held not to be too frivolous to be made the basis of an appeal.</p> <p>2. Trial — Justice of Peace — Offer to Confess Judgment — Costs. Where in an action before a justice of the peace the defendant, who at the time has not filed a bill of particulars or otherwise indicated an intention to rely upon a set-off, offers to confess judgment for a stated amount, such offer is to be interpreted, in the absence of some special reason to the contrary, as one to accept a liability for the amount indicated with respect to the claim sued upon. And if, after other costs have accrued, the defendant asserts a cross-demand not connected in any way with the original cause of action, and makes no offer to confess judgment for the amount named, over and above his set-off, he is chargeable with the costs of the trial if the plaintiff is awarded a larger sum on his original claim than that for which the defendant offered to confess-judgment, although the set-off allowed the defendant may reduce the judgment below that amount.</p>

<p>Appeal from Edwards district court; Albert S. Foulks, judge.</p>

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Fire Insurance — Misdescription of Premises — Mistake—Reformation of Policy. Recovery can be had on a fire insurance policy covering merchandise contained in different buildings situated on two adjoining lots, although the property insured is described as being situated on one of the lots, where the evidence shows that the insurance agent and the owner intended to insure the property while in the buildings on either or both of the lots.</p>

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

<p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Opening Public Street — Condemnation Proceedings — Appraisement— Benefits — Injunction. In a proceeding under section 1024 of the General Statutes of 1909 to extend a street the report of the appraisers stated that they appraised and assessed the actual value of the land taken without reference to the projected improvement and the actual damages to all other property thereby. In the column of benefits opposite the tract of land owned by the plaintiffs were the figures “300,” indicating $300, while in the column of damages opposite the tract actually taken was the word “none.” Held, that in view of the presumption and statement that the appraisers acted in accordance with the law it can fairly be deduced from the entire report that they subtracted the value of the land taken from the benefits to the entire' tract, giving a surplus of $300, amounting at most to an irregularity which could be remedied by an appeal taken at a proper time, and hence -injunction will not lie.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Liquor Law — “Persistent Violator”- — Former Conviction under City Ordinance. The former conviction for a violation of the prohibitory law which must be pleaded in an information charging a felony for the persistent violation of the prohibitory law relates to a conviction under the state law and not to a conviction under a city ordinance.</p>

<p>Appeal from Cherokee district court; James N. Dunbar, judge.</p>

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

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

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

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Trial — Absence of Judge During Arguments — Prejudicial Error. It is the duty of the judge of the district court to preside during the trial of ■ cases; and where, over the objections of one of the parties, he calls the' clerk to preside at the argument of a case and leaves the court room, a very slight showing of prejudice is sufficient to authorize a reversal of the judgment with direction to grant a new trial.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Parent and Child — Contract—Future Support — Partial Performance —Breach—Ouster—Equities. Plaintiff, among other things, alleged that about 1888 his parents agreed with him and his brother that in return for their support the parents would give their land to the sons, by will or otherwise; that afterwards it was agreed that each of the sons was to have one-half the land; that the plaintiff took possession of his half and lived thereon as his homestead for seventeen years, supporting the parents until the surviving father left the place; that such support was worth much more than the use of the land; that the father and brother had conspired to oust him therefrom and to sell the land, had converted personal property belonging to him, and were threatening to sell other property in which the plaintiff had a joint ownership. Held, error to compel him to elect to try only one of such matters, as all should have been settled in the one action.</p> <p>2. Same — Specific Performance Refused. Having found that the plaintiff had breached the contract by failure to 'support his father and by putting him in fear of bodily harm by threats of violence and personal injury, thereby causing him to leave, the trial court rightfully held him not entitled to specific performance.</p> <p>3. Same — Value of Father’s Support — Use of Land. But in view of the long-continued support furnished by the son and the allegations as to its value, it is held that he has a right to enjoin ouster and the sale of the land to another until reimbursed or secured for the value of such support over the use he has had of the land.</p>

<p>opinion denying a rehearing.</p> <p>Appeal from Smith district court; Richard M. Pickler, judge.</p>

<p>Appeal from Greeley district court; Albert S. Foulks, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Opening Judgment — When New Summons Unnecessary. On the filing of a petition to open a judgment it is not necessary to issue a new summons to a defendant who had permitted the judgment to be taken against him by default.</p> <p>2. Same — General Appearance Waives Summons. Rule followed that summons is not necessary when a voluntary general appearance is entered.</p> <p>3. Appearance — What Constitutes a General Appearance. A general appearance is entered by a defendant, (a) when he files a motion to make plaintiff’s petition more definite and certain; (6) when he joins in a stipulation that plaintiff may have further time to amend his petition; (c) when files a general denial; (d) when he files an answer to the cross-petition of his codefendant.</p> <p>4. Amendment to Pleadings — Judicial Discretion. Rule followed that the allowance or refusal to allow amendments to pleadings is within the sound discretion of the trial court.</p> <p>5. Mortgage Foreclosure — Venue Where Land is Situated. A foreclosure action is properly brought in the county where the land is situated, and the grantee of the mortgaged land who had assumed and agreed to pay the mortgage is a proper party defendant in such action.</p> <p>6. Sam:e — Evidence—Contents of Deed — When Record May be Impeached. When upon due demand a defendant, grantee of a tract of land, is unable or unwilling to produce the deed conveying the title to him, secondary evidence of its contents is admissible although the record of the register of deeds shows a purported copy of the deed, it being the contention of the demandant that the register’s record is an inaccurate copy of the original deed.</p> <p>7. Verdict — May be Received by Attorney by Agreement. Rule announced in The State v. Keehn, 85 Kan. 765, 118 Pac. 851, that by agreement of the litigants and with the approval of the trial judge in open court, the verdict of the jury may be received by a designated attorney in the absence of the trial judge, followed and applied.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Injunction — Drainage Diteh — Highway—Surface Water — Insufficient Evidence. A ditch was dug in a highway by a landowner and the public officers to' drain water from the highway as well as from the adjoining land, and an embankment or dike was made on the side of the ditch which served to prevent the water from passing upon the land on that side of the highway. After the enactment of chapter 175 of the Laws of 1911, which related to drainage, the ditch was deepened and the dike enlarged by the owners of the adjoining lands, the better to serve the -purpose for which they were originally made. Another landowner brought an action to prevent the maintenance of the dike, alleging that it interfered with the flow of surface water from his land. It appeared that the maintenance of the ditch had not resulted in injury to his land since the dike was rebuilt and that there was no reasonable probability that it would do so. Held, that the mere apprehension or possibility of injury did not warrant the granting of an injunction, nor is a party entitled to that remedy unless he satisfactorily shows that the injury is likely to occur and that his remedy at law is inadequate.</p> <p>2. SAME-^Equitable Considerations. One who seeks equity must do equity, and if an applicant for an injunction has encouraged, invited or contributed to the injury and loss sought to be enjoined, or acted wrongfully and illegally in respect to it, he is not entitled to the relief.</p>

<p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.</p>

<p>opinion denying rehearing.</p> <p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

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

<p>Appeal from Barton district court; Daniel A. Banta, j udge.</p>

<p>Case No. 19,872. Appeal from Wyandotte district court, division No. 3; Hugh J. Smith, judge. Consolidated with—</p> <p>Case No. 20,162. Appeal from Wyandotte district court, division No. 1; Edward L. Fischer, judge.</p>

<p>Appeal from Montgomery district court; Thomas J. Flan-, nelly, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Church Member — Eos communication — Appeal to Church Conference — - Decision of Conference Final — Not Entitled to New Trial. The plaintiff was excommunicated by the church council of Bethany Lutheran church at Lindsborg, an unincorporated religious society of which he was a member. The by-laws of the church provided for an appeal to the conference, a voluntary association of Lutheran ‘churches. The by-laws also contained the following provision: “The decision of the conference in the matter shall in all events be final.” The plaintiff appealed to the conference, which ratified the action of the council.</p> <p>The plaintiff filed a motion for a new trial. The conference decided that the document could lead to no further consideration of the cause. The plaintiff sued the conference for damages for not hearing the motion for a new trial. A demurrer was sustained to his evidence. Held, the demurrer was properly sustained, because the plaintiff failed to show any church rule, custom or usage requiring the conference to consider a motion for a new trial; the conference was not bound by the common-law rulés of civil procedure, and the by-law quoted forbids further action by the conference after it has decided an appeal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Motion for Continuance — Absent Evidence — No Diligence Shown. Where a plaintiff moves for a continuance on the ground that on account of his poverty he has not been able to look up the evidence and find witnesses to prove his ease, a denial of the motion is justified by evidence that he had brought a previous action on the same cause, which he had dismissed when it whs brought to trial, suing again just before the expiration of a year.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Jurisdiction — Justice of the Peace — Amount in Controversy. In an action before a justice the bill of particulars stated a cause of action for the recovery of $300; the prayer asked judgment for that sum with interest from the day the action was begun; judgment was rendered for $300. Held, that the prayer was no part of the statement of the cause of action, that the amount sued for was $300, and that the justice court and the district court on appeal had jurisdiction.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Vacation op Street — Land Reverts to Abutting Lot Owners. The statutory rule followed, that on the vacation of a street the land so vacated reverts to the “owners of lots adjacent or abutting thereto, according to the frontage of said lots or land.”</p> <p>2. Ejectment — Basis of Recovery — Plaintiff’s Own Title. The rule followed that a plaintiff in an action in ejectment must rely on the strength of his own title, and not on the weakness of his adversary’s title.</p>

<p>Appeal from Washington district court; John C. Hogin, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Question of Practice — Not Decided. A question of practice held not necessary to be decided.</p> <p>2. Shipping Contract — Interstate Commerce. A shipment of goods consigned to a point in another state constitutes interstate commerce, notwithstanding an actual delivery is made before a state line is crossed.</p> <p>3. Shipping Grain — Expense in Furnishing Grain Doors — Reimbursement. In an action against a carrier for the expense incurred by a shipper in furnishing grain doors to box cars, the plaintiff can not prevail by showing merely the total cost of all the doors he had furnished, including an unascertained number of items for which no charge could be made because they accrued in interstate shipments, after the interstate commerce commission had forbidden the reimbursement of such expenses unless provided in the tariff, and before any tariff provision had been made in that regard.</p>

<p>HEADNOTE BY THE REPORTER.</p> <p>1. Jurisdiction — Justice of Peace — Amount Involved — Appeal. Where in an action before a justice of the peace the defendant sets up a counterclaim and set-off exceeding $300, and does not withhold setting off any portion of the same, the justice has no jurisdiction to hear and determine such counterclaim and set-off or any portion thereof.</p> <p>2. Same. Where an action is appealed from a justice of the peace to the district court, the district court has only such jurisdiction in the case as the justice of the peace had.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. City Pesthouse — Maintenance a Governmental Duty. Where a municipal corporation maintains a pesthouse for the treatment and isolation of persons who have been exposed to or affected with smallpox, it performs a governmental duty.</p> <p>2. City Pesthouse — Negligence in Keeping — City Not Liable for Damages. The rule that the governmental agencies of the state are not liable in an action of tort for either misfeasance or nonfeasance is applied to an action against a city to recover damages for personal injuries resulting from the defective condition of the floor of a pest-house where plaintiff, who was affected with smallpox, was confined by the city authorities.</p>

<p>Appeal from Allen district court; 0SCAR Foust, judge.</p>

<p>■ Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Automobile — Crossing Railroad. Tracks — Failure to “Look and Listen” —Contributory Negligence. It is such negligence as will prevent a recovery for injuries sustained for a driver of an automobile to attempt to cross a railroad track at a grade crossing without looking or listening for the approach of a train, although an electric warning bell is maintained at the crossing and the bell is not ringing.</p> <p>2. Same — Enginemen Not Guilty of Wantonness. Enginemen in charge of a locomotive attached to a passenger train, who cut off the steam and apply the air one quarter of a mile before reaching a street crossing in a small city, and who suppose that an electric warning bell stationed at the crossing is ringing, are not guilty of wantonness, although they fail to ring the engine bell or sound the whistle for the crossing, and although they go through the city at the rate of forty-five miles per hour.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Change op Watercourse — Damages—Proper Party Plaintiff. Where a plaintiff has acquired a town lot and has entered into possession under a contract of purchase, he is the owner of it so far as concerns his right to maintain an action for damages to the property.</p> <p>2. Extraordinary Floods — Damages—“Act of God.” An “act of God” as known in the law is an irresistible superhuman cause, such as no reasonable human foresight, prudence, diligence and care can anticipate and prevent.</p> <p>3. Same — Heavy and Protracted Rains — Not within Definition of “Act of God.” A flood caused by a heavy and protracted rain no greater than had fallen “many a time before1’ within the duration of a man’s experience is not such “an act of God” as will excuse one who changes the natural course of a stream into a new channel which is inadequate to carry off its waters without damage to neighboring property.</p> <p>4. Title — In Name of Wife — Husband Liable for Changing Watercourse. Although the title to property may be vested in a wife, her husband may subject himself to liability as its owner by acts of dominion and control over it.</p> <p>5. Same — Acts Rendering Husband Liable for Changing Watercourse. Where a husband’s business firm contributed a large sum of money towards the purchase of a tract of land and the husband joined in platting it as a city addition, paid the taxes from year to year, changed the course of a stream which flowed through it, advertised lots in the addition, sold such lots and received payments therefor and gave receipts in his own name, he may be liable as owner for the negligent manner of changing the stream and its consequences although the title to the property was taken and held in the name of his wife.</p> <p>6. Changing Watercourse — Liability for Damages. Where for his own purposes the owner of land changes the course of a stream, he must use due care to provide the stream with a new channel of sufficient capacity to carry off not only the ordinary flow of water but also such high waters as may reasonably be anticipated from heavy and protracted rains and which the old channel was capable of carrying away without damage to neighboring property.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Negligence — Fire—Sparks from Locomotive — Evidence. In an action to recover damages from a railway company for negligently causing the burning of a barn in the operation'of its railroad, the testimony tended to show that it was not an impossibility for igniting sparks and cinders to be carried by a high wind a distance of 800 feet from a locomotive and there set fire to dry and inflammable material, and it is held that the evidence submitted herein was sufficient to support the verdict of the jury that the property was set on fire and .destroyed through the negligence of the defendant.</p> <p>2. Same — Trial—No Error in Admission of Evidence. The admission of testimony which is not competent for one purpose but is admissible on another phase of the case is not ground for reversal where the court expressly limits the application of the testimony to the issue upon which it is competent.</p> <p>3. Same — Findings Supported by Evidence. Special findings of the jury which are challenged are held to be supported by the evidence in the case.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Motion for New Trial — Its Purpose. The purpose of a motion for a new trial is to inform the trial court what errors are relied upon in order that the court may, by granting a new trial, correct any error shown to exist.</p> <p>2. Appeal — Matters for Review. “Only such matters as were considered by the trial court are open to review in the supreme court.” (Brook v. Corbin, 94 Kan. 542, syl. ¶ 4, 146 Pac. 1150.) •</p> <p>3. Appeal — Matters Not Raised in Motion for New Trial — Not Reviewable. Following Washburn v. Bank, 86 Kan. 468, 121 Pac. 515, it is held where no complaint of the admission of evidence over plaintiff’s objection was made in the motion for a new trial, the question can not be raised in this court.</p> <p>4. Trees — Owner May Use His Land for Any Purpose Desired. “It is not for the wrongdoer who causes an injury to decide whether an owner should have used his land for a particular purpose nor the use to which it can most profitably be employed.” (Barker v. Railway Co., 94 Kan. 61, 66, 145 Pac. 829.)</p> <p>5. Trespass — Destruction of Trees — Measure of Damages — Evidence. In an action under section 9692 of the General Statutes of 1909 by a landowner to recover treble damages for the destruction of trees where plaintiff has elected to recover the distinct value of the trees, which the evidence shows can be determined independent of the land, and has offered no evidence of the value of the land before and after the trees were destroyed, it is error to admit over plaintiff’s objections proof that the land would sell for as much or more for farming purposes without the trees as with them.</p> <p>6. Trespass — Destruction of Trees — Evidence Does Not Sustain Verdict. While it is not the province of this court to weigh the evidence, it may determine that there is or is not. sufficient evidence to support the verdict; and in this case the court determines the verdict is contrary to the evidence and therefore the judgment is reversed.</p> <p>7. Obiter Dictum — Certain expressions in the opinion in the case of Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526, are held to be obiter and are disapproved.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Indemnity Bond — Alleged Untruth in Application Therefor — Question for Jury. In an application to a surety company for a bond insuring' the good conduct of an employee a negative answer was returned to the question whether he was indebted to his employer. The sum of fifty dollars had been advanced to him to .enable him to meet the expenses of his employment, to be returned out of his earnings. Held, that it was not error to submit to the jury whether this transaction should have been mentioned in answer to the question, and whether the failure to mention it proceeded from bad faith.</p> <p>2. Pleadings — Inconsistent Defenses — No Prejudicial Error. Where a defendant, instead of pleading, as he might have done, that one or the other of two conditions existed, either of which served his purpose, pleads one of them in one count of his answer and the other in another, the plaintiff is not ordinarily prejudiced by the denial of a motion to require him to elect between them, although both allegations could not be true.</p> <p>■3. Indemnity Bond — Issue to be Tried, — Instruction. In an action upon a bond undertaking to indemnify an employer against losses through the embezzlement of an employee, it is not error to instruct that one of the issues is whether he was guilty of that offense.</p> <p>4. Same — Burden of Proof — Instruction. A general instruction that the plaintiff has the burden of proving a right to recover is not objectionable, although some issues are involved as to which the burden is on the defendant.</p> <p>5. Insurance Agent — Failure to Remit Premiums — No cause of Action Proven. Where an insurance agent, who is authorized to retain twenty per cent of all premiums collected, remits eighty per cent of each collection made, without specific direction as to the application thereof, the fact that the company applies a part of the amount remitted to an indebtedness of the agent for money advanced, can not result in fixing liability upon a bonding company which has undertaken to indemnify the insurance company against loss occasioned by the embezzlement of its agent.</p>

<p>Appeal from Cherokee district court; Edward E. Sapp, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. PERSONAL Injuries — Clerical Employees — Workmen’s Compensation Act. Clerical employees in the office of the city clerk are not employees of the city in conducting a light and water plant, as contemplated by section 6 of the workmen’s compensation act. • (Laws 1911, ch. 218.)</p> <p>2. Same — Assumption of Risk — No Recovery. The evidence of the plaintiff showed that the character of the work of removing the pipe which fell on the deceased and the dangers incident thereto were apparent to him, and in attempting to perform such work in the way he did 1m was sufficiently at fault to bar a recovery. Held, the demurrer to such evidence was rightfully sustained.</p>

<p>Appeal from Sedgwick district court, division No. 1; Thomas C. Wilson, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Appeal — Record—Transcript of Evidence — Duty to Furnish — Review. To obtain a review of rulings upon the admission of evidence, or' of questions which depend upon the evidence, a transcript of the stenographer’s notes of the testimony and the proceedings at the trial should be procured and filed in the way prescribed in section 574 of the civil code; and where a complete transcript has not been made and filed, and there is no agreement of counsel that the record presented contains all the evidence on any particular issue or matter, no questions arising on the evidence can be considered, and as the only questions assigned for error in this appeal require the consideration of the evidence which has not been transcribed, the appeal must be dismissed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Interpretation—Power Vested in Executors — Equitable Conversion of Beal Estate into Personalty. The provisions of a will interpreted, and held that it did not confer on the executors naked power to sell real estate and distribute the proceeds to heirs who took title by descent,' but that on the death of the testatrix an equitable conversion of the real estate into personalty took place and title passed to the executors to enable them to carry out certain trusts created by the will.</p> <p>2. Same — Partition Agreement — Executor’s Deed to Wife of Executor Valid — Creditor’s Bill. In order to carry out a partition agreement among heirs the executors of the will referred to executed to the wife of one of them an executor’s deed purporting to convey a tract of land apportioned to the grantee’s husband by the partition agreement. It was believed a deed from the two executors would not be valid if one of them were named as grantee. The husband delivered the deed to his wife with the firm belief that it placed title to the land in her. The deed was duly recorded, and neither the husband nor wife was then indebted to any one. Some years later the husband became financially involved and one of his creditors now seeks to appropriate the land to the payment of a debt. Held, the husband is estopped to deny that the executor’s deed had the effect which it was designed to produce, and is estopped to claim the land under any title which he possessed at the time the deed was delivered, and that the creditor’s right to the land is no better than that of the debtor.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Drainage District — Public Corporation — Ditches Crossing Highway— Expense of Bridges — District Not Liable. A drainage district organized under chapter 215 of the Laws of 1905 is a public corporation created by the legislature to perform public functions. Neither by common law nor by statute is any duty imposed upon the drainage district to build or maintain bridges where its ditches cross a public highway, and therefore the board of county commissioners can not maintain an action against the district to recover the expense of constructing such bridges.</p>

<p>SYLLABUS BY THE COURT.</p> <p>TAXATION' — Special Assessments — Sewers—Limitation of .Actions. A special assessment to construct a sewer was levied on land which it is claimed could not he drained or benefited by such sewer. Held, that having let the thirty-day period elapse for instituting an action to set aside or in any way contest or enjoin the levy, such defense is now barred.</p>

<p>Appeal from Wyandotte district court, division No. 3; Hugh ■J. Smith, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Legislature — Acts Unassailable When Within Limits of the Constitution. Rule followed that within the limits of the constitution the legislature is supreme in its own sphere, and its discretion can not he challenged or reviewed by the executive or judicial departments of the state government.</p> <p>2. Same — Grain Inspector — Appropriation for Expenses — Valid. When the legislature by a regular statutory enactment makes an appropriation to pay a person a sum of money under a claim for traveling expenses while in the state’s service, the legal, equitable and moral aspects of the claim concern the legislature alone, and can not be reviewed by the auditor of state.</p> <p>3. Same • — ■ Appropriations — Grain Inspection — Power of Legislature. The petitioner worked in the state grain department, at Kansas City, for three years and four months, at a salary of $60 per month. During the period of his employment there was no statutory .provision for his traveling expenses. The legislature of 1913 appropriated a sum of money to be paid out of the “grain inspection fee fund” to reimburse the petitioner for traveling expenses while he was employed</p> <p>X by the state. Held, that the legislature had full and exclusive control ; of the subject, and the law pertaining thereto leaves no duty imposed S on the auditor of state except the ministerial one of executing the expressed will of the legislature.</p> <p>4. Same — Duty of Auditor 'upon Presentation of Voucher. When a lawful appropriation has been made by the legislature and the person entitled thereto presents a voucher therefor in due form, and when upon the auditor’s refusal to honor the voucher the claimant seeks redress in court, he can not be deprived of relief because of the termination of the fiscal year and the closing of the year’s accounts before his action is finally adjudicated.</p> <p>5. Statute — Amendment—How Made. An act of the legislature which attempts expressly to amend or repeal a prior act must conform to the procedure prescribed by the constitution. (Const., art. 2, § 16.)</p> <p>6. Same — Attempted Amendment to Statute Invalid. In the body of a section of a statute enacted by the legislature of 1913 was an item appropriating a sum of money to the petitioner. The legislature of 1915 sought to abrogate that item by an act purporting to repeal the act of 1913 “in so far as it relates to item 106 of section 1 of said chapter.” Held, that the later act wholly disregarded section 16 of article 2 of the constitution and is consequently void.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Railroads — Personal Injuries — Cause of Accident Unknown — No Damages Without Proof of Negligence. The plaintiff alleged that her husband was a passenger on one of defendant’s trains and that upon arrival at' his destination he undertook to walk alongside the train, and while walking past a water tank he slipped upon ice which had been negligently allowed to accumulate there, fell under the wheels of the train and was killed. His lifeless body was found on one side of the track and his severed legs between the rails of the track. He had expressed a purpose to come- to the place where he was killed, on one of defendant’s trains. No one saw him upon the train, nor leaving it; nor was there any evidence that he had purchased a ticket for passage upon the train. No proof was produced as to how he happened to be killed, outside of the circumstances of the location of his body and the conditions existing there. Held, that the evidence in the case, only a part of which has been stated, was not sufficient to show that the defendant failed to perform any duty which it owed to him and that his death was the proximate result of defendant’s negligence.</p>

<p>Appeal from Shawnee district court, division No. 1; Alston W. Dana, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Legality of Consideration — Put in Issue by Answer. The legality oí the consideration íor a note sued on is put in issue by ■ an answer which alleges that there was no legal consideration for the note, and sets out the illegal transaction out of which the indebtedness arose for which the note was given.</p> <p>2. Same — Illegal Consider atiorir — “Dealing in Futures” — Fact for Jury. In an- action on a promissory note, where the defense is that the consideration for the note was an indebtedness incurred in transactions prohibited by law, and there is evidence tending to support that defense, it is error to refuse to give an instruction submitting- that question'to the jury.</p> <p>S. Same. In such an action, Where the evidence is conflicting, it is not error to refuse to .render judgment for the defendant on the pleadings and the evidence.</p>

<p>Appeal from McPherson district court; Frank F. Prigg, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Murder in First Degree — Sufficiently Charged in Information. A charge that the defendant unlawfully, willfully, feloniously, purposely and of deliberate and premeditated malice killed the person named by shooting him with a gun, commonly called a revolver, which was then and there loaded with powder and leaden bullets, construed to mean that the killing was done with deliberation and premeditation.</p> <p>2. Same — Evidence Warranted Verdict. The claim that the evidence did not warrant a verdict of guilty of murder in the first degree considered and held to be without substantial foundation.</p> <p>3. Same — Instruction—Reasonable Doubt. A charge that the jury could not acquit unless each one of them entertained a reasonable doubt of the defendant’s guilt, while unnecessary and not to be commended, was not materially prejudicial.</p> <p>4. Same — Evidence—Not Prejudicial. The testimony showed that two young men associated together and visited at the homes of each frequently. The error in permitting a witness over objection to testify to the conclusion that they were good friends was harmless.</p> <p>■5. Same. In describing a place with reference to an obstruction of the defendant’s view it was not material error to permit a witness to answer in part that a person naturally could see as big an object as the one described.</p> <p>45. Same — Rejected Evidence — Not Prejudicial. Rejected evidence of a witness that defendant had attempted to sell his farm prior to the shooting was not of sufficient importance to require reversal, the defendant being permitted to go into the matter fully when upon the stand.</p> <p>1. Same — Evidence—Former Conduct of Deceased Rejected — No Error. An offer to prove that the deceased assaulted and beat a certain boy and was discharged from his employment on account of his quarrelsome nature and disposition five years before the killing and four years before any trouble was shown to have existed between him and the defendant was properly refused, the admission of testimony thus remote in addition to recent evidence of numerous witnesses being within the discretion of the trial court.</p> <p>8. Same — Continuance—Evidence■—Refusal Not Material Error. Numerous witnesses testified as to the character and reputation of the defendant and the deceased for peaceableness or quarrelsomeness so that the jury had fair and ample information as to these matters. Held, that a refusal to grant a contihuance on account of the sickness of another witness who had been subpoenaed to testify mainly in relation to these questions was not material error.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Rape — Instruction Refused — Not Error. In a prosecution for rape, before it becomes necessary for the court to instruct the jury that if the woman charged to have been ravished is the wife of the defendant he can not be convicted, there must be evidence tending to prove that the parties were husband and wife.</p> <p>2. Same — Evidence—Prima Facie Case. In a prosecution for rape, to make out a prima facie case, it is not necessary for the state to prove that the accused and the woman were not husband and wife.</p>

<p>Appeal from Cherokee district court; James N. Dunbar, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Liquor Nuisance — Injunction—Contempt—Evidence. In a proceeding for contempt for violating an injunction against maintaining an intoxicating liquor nuisance, evidence that a liquor sold looked like beer, tasted like beer, and that the witness believed it was beer, and that there was malt in the liquor sold to another witness, is sufficient to justify a finding of the sale of intoxicating liquor.</p> <p>2. Same — Witness Tasting Contents of Bottle. It is not error to refuse to permit a witness to taste the contents of a bottle to see if they are the same as the contents of another bottle purchased from the accused by the witness.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Liquor Nuisance — Information — Misdescription of Premises — Not Prejudicial. An information charged the maintenance of a nuisance in a frame building on a location sufficiently described. The amended information recited that the nuisance was maintained in a concrete building, the location being exactly the same. Held, that the misdescription of the materials out of which the building was constructed did not prejudice the defendant’s rights and the quashing of the amended information under such circumstances was forbidden by subdivision 7 of section 110 of the criminal code.</p> <p>2. Plea in Abatement — Demurrer Properly Sustained. A demurrer to a plea in abatement is properly sustained when the facts alleged in the plea contradict the record.</p> <p>3. LIQUOR Nuisance — Competent and Sufficient Evidence. Where the defense was' that the place where the alleged nuisance was being maintained was only a lodge room where the members occasionally had a keg of beer on tap, the evidence of the officer serving the warrant, which showed the situation of the premises, the crowd, the liquors and paraphernalia of the place, and the presence of the defendant and his acts, was competent although the information may have been filed the day before the officer served the warrant.</p> <p>4. Same — Former Decision Distinguished. The case of Topeka v. Chesney, 66 Kan. 480, 71 Pac. 843, distinguished.</p>

<p>SYLLABUS BY THE COURT.</p> <p>City Bonds — Defective Notice of City Election — Not Fatal to Validity of Bonds. Under a statute requiring a notice of an election, to vote on a proposal to issue city bonds, to be signed by the mayor and city clerk, and published, the mere fact that the publication through inadvertence omits the signature of the mayor is not sufficient to invalidate the election or bonds issued thereunder, where an ordinance calling the election covered all the details required to be stated in the notice, and those who voted for the bonds constituted a majority of - all the qualified electors of the city.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Municipal Bonds — Improvement of Water Plant — Notice of Election— Irregular but Not Void — Mandamus. Under a statute authorizing the issue of bonds for the extension and improvement of a municipal water plant, which provided that the notice of the election and the election ballot shall state the amount of bonds proposed to be issued, a city ordinance calling the election, the election notice and the election ballot stated the proposition thus:</p> <p>“Shall the mayor and councilmen of the city of Oswego, Kansas, issue the bonds of said city in a sum not’ exceeding Thirty thousand dollars, bearing 5% per annum interest, payable semi-annually; payable within Twenty years from their date, in such manner as the mayor and councilmen may determine, for the purpose of improving the water supply plant and system of said city.”</p> <p>Held, that this slight departure from the precision of statement required by the statute touching the amount of bonds to be issued does not render the proposed issue illegal nor preclude their registration.</p>

<p>OPINION ON APPLICATION FOR MODIFICATION OF JUDGMENT.</p> <p>Appeal from Jackson district court; Oscar Raines, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Liens — Foreclosure — Sale — Assignment of Right of Redemption— Amount Required to Redeem. Shortly after the holders of certain mechanic’s liens had begun suit to foreclose, a quitclaim deed amounting to a mortgage on the land involved in the suit was executed to a trustee for the benefit of such lien holders. The foreclosure suit went to judgment, the land was sold and the sale confirmed, one of the lien holders being the purchaser at about one-fourth the amount of the judgments. Later the fee owner conveyed by warranty deed and 'at the same time assigned his right of redemption to the plaintiff, who sought to redeem on the basis of the sum for which the land sold at foreclosure. His payment being refused, he sued for an accounting of rents and profits and to redeem. Held, that the sum the land sold for is the proper basis for redemption.</p> <p>2. Deed and Assignment — Construed Together — Right to Redeem. Such deed and assignment having been executed at the same time must be construed together, and for the purposes of this case amount merely to a transfer to the plaintiff of the fee owner’s right to redeem.</p> <p>8. Execution Sale — Mortgage Paid by Purchaser — Redemption from Sale — Amount Required. The fee owner having requested the purchaser at the foreclosure sale to take up a mortgage on the land which he had executed to another- — which was done and satisfaction entered of record — in order to redeem and oust, the purchaser must account for such mortgage, and the plaintiff, standing in his shoes, is under like obligation.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from Shawnee district court, division No. 2; George H. Whitcomb, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgage — Oral Agreement to Execute — Equitable Lien. One who had given a chattel mortgage on certain property to secure a note, and had agreed to replace this with one executed by himself and wife, used the same property to secure a loan to complete payment for a farm and then promised his debtor to give him a mortgage on the farm executed by himself and wife — but gave.him only a mortgage signed by himself and not acknowledged, the wife refusing to join, but she, with her husband enjoying the fruits of such exchange of security. The only defense pleaded to plaintiff’s action to subject the land to the lien of his debt was a general denial. Held, that as between these parties the land is subject to such lien.</p> <p>2. Same — Foreclosure—Unrecorded Deed — Innocent Purchaser — Question for Jury. The husband and wife conveyed the land two days before this suit was begun but the grantees did not record their deed until some time after service had been made. The evidence as to such grantees being innocent purchasers examined and held to have been such as to entitle plaintiff to its submission to the jury under proper instructions.</p>

<p>Appeal from Wyandotte district court, division No. 2: Frank D. Hutchings, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Construction—Intent of Testator. There is no occasion for employing rules for judicial construction of a will in search of the testator’s intention where such intention is expressed clearly and unequivocally in the instrument.</p> <p>2. Same. The intention of the testator so expressed is not controlled nor defeated by the fact that the scrivener divided the words used to express the making' of a gift by the testator to a beneficiary into three paragraphs instead of including all in a single paragraph.</p> <p>3. Same — Will Created Life Estate in Wife of Testator. Provisions of the will under consideration are held to clearly show that the intention of the testator was to give his wife a life estate instead of an absolute title in fee simple to certain real estate.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Banking — Right to Apply General Deposit on Depositor’s Matured Note. The right of a bank to enforce its lien or off-set against a general deposit and to apply the deposit to the matured indebtedness of-the depositor does not depend upon an express direction or authority of the depositor, where there is no understanding or agreement to the contrary between the depositor and the bank.</p> <p>2. Same. There is ordinarily no distinction between the right of a bank to apply a general deposit to a debt due the bank on an overdue note of the depositor and its right to apply such deposit to his overdraft.</p> <p>3. Same — No Notice of Interest of Third Person in Deposits. On the facts stated in the opinion, it can not be said as a matter of law that a bank which applied a depositor’s account upon an overdue note he owed the bank was charged with notice of an interest of a third person in the fund.</p>

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

<p>Appeal from Gray district court; Gordon L. Finley, judge; Littleton M. Day, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — Amendments' to Laws — Must be Fair and Reasonable. Where a member of a fraternal beneficiary society agrees to be bound by future amendments to its laws a reservation is implied that the changes are to be fair and reasonable.</p> <p>2. Same. In order to be deemed necessary to the purposes of a fraternal beneficiary society a change in its by-laws need not be indispensable to that end. If it is reasonably adapted thereto the requirement is met.</p> <p>3. Same — Changes in By-laws — Reasonableness for Court. Whether changes made in the by-laws which affect the rights of a member in such an association are fair and reasonable is ordinarily a question of law, where the detailed facts are not in controversy.</p> <p>4. Same. The rates of a fraternal beneficiary society as fixed by a change in the by-laws held not to be unreasonably high.</p> <p>5. Same — Change in By-laws — Beneficiary Entitled to Paid-up Certificate. Where the certificate held by a member of a fraternal beneficiary society provides that after a certain time it shall be nonforfeitable, and that he shall be entitled to a paid-up certificate in proportion to the number of payments he has made, a change is unreasonable which denies him, unless he shall make further payments, any benefit whatever from his admitted present share of a reserve fund which has already accumulated.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Mortgage — Stipulation to Pay Taxes — Nonpayment—Right of Foreclosure. A stipulation in a mortgage provided that if payments of principal and interest of the mortgage debt were not paid when due, or if the taxes assessed against the mortgaged property were not paid when payable, the whole debt should become due and the mortgage become subject to foreclosure át the option of the mortgagee, and that in case • a default was made in the payment of taxes the mortgagee might pay the same and the mortgage should stand as security for the taxes so paid. Held, that a default in the payment of the taxes operated to accelerate the maturity of the mortgage debt and gave the mortgagee the right to maintain foreclosure at once; and held further, that the right to foreclose was not waived by the payment of the defaulted ■ taxes by the mortgagee.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Deed — Covenant against Taxes —• Mutual Mistake — Reformation of Deed. The action was one for damages for breach of a covenant against taxes contained in a warranty deed. The defense was that the deed should be reformed, on the ground of mutual mistake, so that the covenant would speak from the date of the contract of sale and not from the date of the deed. The defense was fully established by parol evidence, which was not disputed, the contention of the plaintiff being that the evidence was not admissible and that as a matter of law the covenant spoke from the date of the deed. Held, that the deed should be reformed.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Exemptions — Proceeds of Homestead. Questions concerning the exemption of funds claimed to he the proceeds of a homestead held not to require decision.</p> <p>2. Same. The evidence held not sufficient to show that a purpose had been formed and adhered to to devote to the purchase of a home funds claimed to be the proceeds of a homestead.</p> <p>3. Same — Division of Property by Husband and Wife — Property Not Exempt from Attachment for Wife’s Debts. Money received, by a wife from her husband as her share in the division of their property held not to he exempt from seizure under attachment, notwithstanding an agreement that it was to be in full settlement of all her rights, including alimony, where a divorce was subsequently granted for her fault and without any allowance to her.</p>

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

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

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

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

<p>Appeal from Seward district court; George J. Downer, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Personal Injuries — Pleadings—Evidence—Findings. In this case the evidence and special findings are examined and it is held that findings of negligence are within the issues raised by the pleadings; that the findings are consistent with each other and with the general verdict.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien — Machinery Unattached to Building — Not Part of Realty. Machinery purchased for use in a mill, intended to be permanently fastened in place by bolts, does not ordinarily become a part of the realty until the physical attachment is accomplished. And where such machinery is sold under a contract reserving title in the vendor until payment is made, it does not become subject to a mechanic’s lien, notwithstanding the contract is not filed for record until after the lien has accrued and the machinery has been deposited in the building, provided such record is made before it is set up and. fastened in place.</p> <p>2. Sale — Machinery—Contract Reserving Title — Purchaser with Notice. Under the circumstances stated, one who, with notice of the existence of the contract, purchases the real estate at a sheriff’s sale based on the judgment in an action foreclosing the mechanic’s lien, acquires thereby no title to the machinery.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Deed — No Valid Delivery — Intention of Parties — Trial. A finding of the trial court that a certain deed purporting to have been executed by a grantor to his wife and which was placed on record by her was not intended to be delivered and become effective as an absolute conveyance of title to the land, is held to be sufficiently sustained by the testimony; and further held, that no material error was committed in the trial of the case.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Automobile — Injuries—No Joint Liability of Dealer Who Sold the Car and Purchaser Who Was the Driver. An automobile dealer ordered a Ford taxicab for a customer. The car arrived at the dealer’s garage, was supplied with gasoline, oil, water and air, was inspected, and was tested by running it, all before noon of a certain day. In the afternoon the purchaser came for the car, paid for it, declined assistance in operating it because he had had experience, and drove it away. After driving the car for probably an hour the purchaser returned to the garage and asked for some one to accompany him to observe the mechanical operation of the car and make any adjustments that might be necessary. The dealer considered it a part of his business to see that the car was in proper working order and sent an employee, who was a machinist, with the purchaser to observe the mechanical workings of the car and correct the same if found defective, and for no other purpose. The purchaser started for a school to get his daughter. On the way he collided with a pedestrian, who was injured. The machinist did not interfere with the operation of the car. Held, the owner and driver of the car was not the agent or servant of the dealer, the dealer had no authority to control the driver in the operation of the car, and consequently the dealer was not responsible for the owner’s negligent handling of the car.</p> <p>2. Same — Negligence Found — Not Charged in Petition — No Recovery. In an actiqn for damages by the injured' pedestrian the petition charged that the driver of the car was negligent in 'enumerated particulars. The jury were asked to state in what his negligence consisted if they found he was negligent. The answer was that he was negligent in a particular not complained of in the petition. Held, the driver was entitled to judgment on the special finding.</p>

<p>Appeal from Ottawa district court; Dallas Grover, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Charitable Associations — Negligence of Physicians and Attendants■ — Liability of Association. Charitable associations conducting hospitals are not liable for the negligence of their physicians and attendants resulting in injury to patients unless it is shown that the association maintaining the hospital has not exercised reasonable care in the employment of its physicians and attendants.</p> <p>2. Same — Railroad Employee — Neglect of Physicians — Liability. The foregoing rule is applied in an action by the father of a deceased employee of a railroad company against a hospital association for the neglect of its physicians and attendants in failing to give the son suitable care and attention, where it appears that the defendant is an association maintained by the railroad company for the treatment of its employees while sick, and is supported by the monthly contributions of all its employees who, so long as they remain in the service of the railroad company and contribute to the fund, are entitled to the benefits of the.hospital free of charge.</p> <p>3. Same — Petition—Subject to Demurrer. In such an action a petition which fails to allege that ,the defendant did not exercise reasonable care in the selection of its physicians and attendants is subject to demurrer.</p>

<p>SYLLABUS BY THE COURT.</p> <p>i. Workmen’s Compensation Act — Claim for Compensation before Commencing Action Rendered Unnecessary. Plaintiff was injured in defendant’s mill, and a doctor attended him before he was removed therefrom. A few days thereafter he called up the mill and told the timekeeper he wanted a settlement and wanted a doctor sent out, and was referred to the defendant’s main office. On calling there he was referred to the defendant’s attorneys and in a day or two a doctor was sent out. A little later he went with counsel to see the defendant’s attorneys about a settlement, which was discussed, but none was made. Shortly thereafter the action was brought which resulted in a lump-sum judgment. The answer admitted an injury and liability for compensation beginning at the end of the second week of the disability, and averred readiness to pay compensation and that the plaintiff had been notified thereof and refused to accept. Held, that the claim required by section 6 of chapter 216 of the Laws of 1913 to be made within three months after the accident was rendered unnecessary.</p> <p>2. Same — Judgment in Lump Sum. Rule followed that a lump-sum judgment was properly rendered.</p> <p>3. Same — Attempt to Settle by Agreement or Arbitration. Rule followed • that an attempt and failure by the plaintiff to settle by agreement or arbitration is not a condition precedent to maintaining an action.</p>

<p>SYLLABUS BY THE COURT.</p> <p>I. Tenants in Common — Voluntary Division — Deed to Tenant’s Wife — ■ No Trust Created. Where parties own land in common and divide it by making deeds to each other, and one of the parties has the deed for his share made to his wife, that deed is not governed by sections 9699 and 9700 of the General Statutes of 1909, relating to trusts.</p> <p>2. Fraudulent Conveyance — Remedies—Action to Set Aside — Attachment. Lands conveyed in fraud of the rights of creditors can not be subjected to the payment of their claims until the claims have been reduced to judgment, or, if the debtor is a nonresident of this state, until the lands have been attached and held subject to the payment of such judgment as may be rendered in the action.</p>

<p>Appeal from Washington district court; JOHN C. HOGIN, judge.</p>

<p>Appeal from Pratt district court; PRESTON B. GlLLETT, judge.</p>

<p>Appeal from Labette district court; Elmer C. Clark, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Sale — Land—Default of Purchaser — Ejectment—Tender of Deed. Where a contract for the sale of land gave the vendor a right to declare a forfeiture for the nonpayment of the purchase price, a statement by the buyer, made after default but before the expiration of additional time that had been given him, that he could not complete the purchase, is sufficient to excuse a formal tender of a deed, no offer to complete the payment ever having been made.</p> <p>2. Same — Declaration of Forfeiture at Fixed Time — Ejectment. Under such a contract, where the whole purchase price is due and unpaid, the vendor, after giving notice that he will declare a forfeiture unless payment is made by a day named, may maintain ejectment if the default continues beyond that time.</p> <p>3. Same — Ejectment■ — Improvements by Defaulting Purchaser — No Allowance Therefor. In the circumstances of the present case it is held that the improvements made by the purchaser do not prevent the maintenance of such an action, nor require any allowance to be made to him on that account.</p> <p>4. Same — Assumption of Mortgage by Purchaser — No Obstacle to Rescission of Contract. The fact that by the terms of such a contract the purchaser assumes the payment of an existing mortgage interposes no obstacle to a rescission by the vendor, where-the mortgagee has done no act in recognition of the purchaser’s obligation beyond accepting interest paid by him at a bank.</p> <p>5. Same — Acceptance of Interest by Vendor — No Obstacle to Forfeiture for Purchaser’s Default. Under such a contract the acceptance by the vendor, on the day the payment of the purchase price is due, of the interest maturing at the same time, does not preclude his declaring a forfeiture for the failure of the purchaser to pay the principal at a subsequent'time fixed in a notice that such action would be taken.</p>

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

<p>Appeal from Reno district court; Frank F. Prigg, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Foreign Judgment Admitting Will to.Probate — WJien Conclusive against Collateral Attack. In a proceeding to establish and probate a will in another state the judgment recited that jurisdiction had been obtained by the service of a citation and notice upon the parties therein “in the manner and for the length of time required by law.” Held, that the finding and adjudication is-conclusive evidence that notice was duly given and jurisdiction acquired in the case as against a collateral attack.</p> <p>2. Will — Destroyed by Fire — Execution and Contents Proven■ — Admitted to Probate in Foreign Court — Entitled to Full Faith and Credit. In the proceeding to establish and probate the will which had been destroyed by a fire that had caused the death of the testatrix, it was found that the will so accidentally destroyed had been duly executed and had never been revoked. The conditions of the will were found and declared; the names and residences of the heirs were stated; the reason why the original will could not be produced was recited; and the will proven was admitted to probate. Held, that the adjudication so made stands as evidence of the will of the testatrix and the disposition that she made of her property, and that an authenticated copy of the judgment establishing and declaring the provisions of the will is entitled to be admitted to record in the probate court of any county of this state in which property of the estate may be situated.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Real-estate Agent — Acting in Dual Capacity — Findings—Commissions. Finding's of fact examined and held to be consistent with each other and with the general verdict. Held further, that the rule that a real-estate agent acting for both vendor and purchaser must do so with the full knowledge and consent of both in order to recover a commission from both was complied with.</p> <p>2. Same — Contract Between Agents to Divide Commission — Maturity. A real-estate agent employed another to assist him in negotiating a trade, agreeing in writing to divide a commission of $5000, to be paid by the principal, upon payment by the principal. The agent settled with the principal for a sum less than $5000, which the principal paid. Held, the contract impliedly warranted that the principal would pay the sum of $5000 as a commission and that the contract matured when the principal settled with his agent.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Rulings — Made After Appeal — Not Subject to Review. Rulings of the trial court can not be reviewed in an appeal which was perfected before they were made.</p> <p>2. Homestead — Improvements—Exemptions—Journal Entry. Language of a journal entry, to the effect that the obligation sued on was found to have been contracted for the erection of improvements on a home, held to show a j'udgment that the homestead was not exempt from sale for its payment.</p> <p>3. Same — Obligations Incurred for Improvements — Never Attached to Homestead — No Lien on Homestead. The provision of the constitution, that no property shall he exempt from sale for the payment of obligations contracted for the erection of improvements thereon, does not apply to a claim for material furnished for the improvement of a homestead, but not actually used for-that purpose.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. General Sales Agent — Authority to Make Settlement by Accepting Return of Goods. On the facts stated in the opinion it is held there was sufficient evidence from which the jury might infer that a general sales agent had authority to make an agreement to accept a return of the goods and merchandise sold to a creditor of the principal in payment of the purchase price.</p> <p>2. Same- — Settlement Made — Constructive Delivery of Goods. The facts stated in the opinion are held sufficient to sustain a finding of a settlement between the plaintiff and the defendants, by the terms of which the plaintiff agreed to accept a return of the specific goods sold and give credit to the defendants’ account for the amount thereof, and that the settlement was executed by the constructive delivery of the goods to the plaintiff’s agent.</p>

<p>Appeal from Cloud district court; John C. Hogin, judge.</p>

<p>Appeal from Sedgwick district court, division No. 1 ; Thomas C. Wilson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. School-district Board — May Provide Instruction in Music. Under the provisions of section 7478 of the General Statutes of 1909 it is competent for a school-district board to provide that other branches shall be taught than those specifically enumerated in the section, and in the discretion of the board they may provide for instruction in music by a qualified teacher.</p> <p>2. Same — Teaching of Mtisie — Authorized by Statute. The uniform course of study prepared by the state board of education for the common schools of the state for the year 1914, under the authority of chapter 272 of the Laws of 1913, authorizes the teaching of music in such schools.</p> <p>3. Same — Board May Employ Separate Music Teacher. It is within the discretion of the school-district boards to determine whether all subjects, including music, shall be taught by a single teacher or to provide that music shall be taught by another teacher, provided such other possesses the qualifications and authority required by the school laws.</p>

<p>Appeal from Edwards district court; Albert S. Foulks, judge.</p>

<p>Appeal from Decatur district court; William S. Langmade, judge.</p>

<p>HEADNOTE OF THE REPORTER.</p> <p>Order op Attachment — Return of Sheriff — Description of Property — ■ Appraisement. Where the return on an order of attachment did not describe the property attached, but it referred to the inventory and appraisement in which was the necessary description, and which was a necessary part of the return, the attachment was valid.</p>

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

<p>Appeal from Geary district court; Roswell L. King, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Vendor and Purchaser.— Default of Purchaser — Abandonment of Contract — No Recovery of Payments Made. A purchaser of real property who fails to make the payments provided for in his contract, and who, being requested by his vendor to either make the payments or move off the property, fails to make the payments, abandons his contract, and moves off the property, can not recover from his vendor any part of the purchase money he has paid.</p> <p>2. Same. Such a purchaser of real property is not entitled to the crops growing thereon at the time he leaves the premises.</p>

<p>Appeal from Decatur district court; William S. Lang-made, judge.</p>

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

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment — Mortgages Paid by Tenant — Offset by Rents and Profits —Statute of Limitations. When a defendant has wrongfully withheld possession of plaintiff’s farm for many years, but who on the broadest principles of equity is allowed a claim for mortgages paid by him, the plaintiff may set up a claim for the reasonable rental value of the farm to meet defendant’s claim, and the statute of limitations is no bar to such claim for rents and profits, following section 102 of the civil code.</p> <p>2. Same — Protracted Litigation — Duty of Court of Equity. When a lawsuit has been in court for fourteen years, during which time it has been appealed to the supreme court five times, it is imperative that some broad general principles of law and equity be rigorously applied, and the litigation brought to a close and final judgment ordered. This rule applied here.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Ouster — County Officer — Findings Sustained by Evidence. The material portions of findings of fact returned in an action to remove a county officer from office held to be sustained by sufficient evidence.</p>

<p>SYLLABUS BY THE COURT.</p> <p>City Ordinance — Regulating Sale of Nonintoxicating Beverages — Limits of Title. The title of a city ordinance which reads, “An ordinance regulating the sale, barter and gift of Malt, Hop Tea, Hop Tea Tonic, Two Percent, Tin Hop, Health Tone, Rosenbrew, and all other nonin.toxicating malt or other beverages containing any per cent of alcohol whatever,” is not broad enough to include a provision in the body of the ordinance attempting to regulate the sale of nonintoxicating beverages that contain no per cent of alcohol, and that part of the ordinance is void because in conflict with section 1060 of the General Statutes of 1909.</p>

<p>Appeal from Johnson district court; Jabez 0. Rankin,, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Sewer Bonds — Assessments—Interest Thereon — Injunction—Limitation of Actions. Certain sewer bonds bearing interest at five per cent were not irregularly or illegally issued because the ordinance levying special assessments for such improvement provides for interest on such assessments at seven per cent. The thirty-day limitation for attacking such assessments (Laws 1911, ch. 124, § 1) having expired before such bonds were presented to the respondent for registration, their registration is required.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Habeas Corpus — City Ordinance — Case Pending — Jurisdiction in Habeas Corpus. Rule.followed that the supreme court will not interfere with the orderly jurisdiction of an inferior court hy summary discharge of a petitioner on habeas corpus, when the petitioner’s cause is still pending and undetermined in such lower court, and where all the objections to the validity of the proceedings being taken against the petitioner can still be urged before the court whose process has deprived her of her liberty. (Civ. Code, § 699; In re Gray, 64 Kan. 850, 68 Pac. 658.)</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Lawyer Who Drew the Will — Competent Witness. The rule applied that in an action to set aside a will the lawyer who drew it may testify to the conversation had at the time between himself and the testator.</p> <p>2. Same — Mental Condition of Testator — Competent Witnesses. The ■ scrivener and subscribing witnesses of a will held to be competent witnesses as to the mental condition of the testator.</p> <p>3. Same — Evidence Sustains the Validity of Will. The evidence held sufficient to sustain a judgment upholding a will against an attack on the ground of want of capacity and fraud.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Taxation — Residence of Episcopal Bishop — Not Exempt from Taxation. Under section 9216 of the General Statutes of 1909 a church is entitled to have the residence owned by it and occupied by its pastor exempt from taxation, and the trial court having found that the dean of the Episcopal church at Salina is its pastor, and- that his residence is and always has been treated by the taxing officers as exempt, it is held, that the residence of the bishop of the diocese of Salina is not exempt from taxation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Divorce — Sufficient Affidavit for Publication Service. An affidavit for service by publication in a divorce case ■which states that the whereabouts of the defendant is unknown to the affiant, and that her post-office address can not be ascertained by any means within his control, carries a sufficient inference of diligent inquiry as to the defendant’s residence to save such affidavit from total insufficiency under section 79 of the civil code.</p> <p>2. Divorce — Service Procured by Perjury — Setting Aside Decree — Limitation of Actions. A decree of divorce rendered on service by publication only, and procured by the perjury of the plaintiff in the affidavit for publication, may on proper showing any time within two years from its rendition be opened up and vacated for fraud in its procurement.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Telegram — From Vermpnt to Kansas — Delay—Action for Damages —By What Law Governed. Where a telegraph message is sent from Vermont to Topeka and the receiver pays the charges, his right to recover damages for’ delay in the delivery of the message is governed by the laws of this state, except as modified by acts of congress.</p> <p>2. Same — Interstate Commerce — Damages Governed by U. S. Statutes. Under the act of congress of June 18, 1910 (Part 1, 36 U. S. Stat. at Large, ch. 309, pp. 539, 544), a rule of an interstate telegraph company limiting its liability on account of its negligence in the delivery of an interstate message to certain sums governed by the classification of the message is valid and binding, and damages can not be recovered beyond the amount named.</p>

<p>Appeal from Labette district court; Elmer C. Clark, judge.</p>

<p>Appeal from Wyandotte district court, division No. 2; Frank D. Hutchings, judge.</p>

<p>Appeal from Decatur district court; William S. Langmade, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Incorporation of City — Number of Petitioners — Finding of County Commissioners Upheld. Under a statute authorizing the county commissioners to incorporate a city upon a petition signed by a majority of the electors of the territory, but making no requirement that the fact of the signers constituting such majority shall be recited in the petition or in the record, an order of incorporation will be upheld which contains no reference to the matter except a statement that the petition showed that it was signed by the requisite number, while the petition itself in fact contained no recital on the subject.</p> <p>2. Incorporation of City — Number of Inhabitants — Territory to be Included in Corporation — Petition. The statement in a petition for the incorporation of a city, following the language of the statute, as to the number of inhabitants of the .“town or village” which it is desired to have incorporated, refers to the inhabitants of the territory proposed to be included within the corporate limits, platted or unplatted, notwithstanding a subsequent statement in the petition that the town and its additions have been platted.</p> <p>3. Same — “Metes and Bounds” of Proposed City — Description Sufficient. A requirement that the boundaries of a proposed city shall be set forth in the petition by metes and bounds is sufficiently complied with by. any description that indicates clearly the territory intended to be included.</p> <p>4. Same. Various irregularities of description held not to be fatal.</p> <p>5. Incorporation of City. — County Commissioners Acted on Petition at “Regular Session” — Completed at Adjourned Session — Proceedings Valid. The requirement that the board of county commissioners shall act on a petition for the incorporation of a city at a regular session is met where such action is taken at an adjourned session of a regular meeting, notwithstanding the matter had already been partly considered and that no order had been made continuing the hearing to any particular time.</p> <p>■6. Incorporation op City- — Journal Entry of Proceedings of County Commissioners Sufficient. A requirement that an order incorporating a city shall recite the substance of the petition therefor is complied with where the journal of the county commissioners’ proceedings contains a recital that on a certain day the petition was filed, stating its substance, and that on a later day it was granted, the details of the order being set out in the record of the proceedings of that day.</p> <p>7. Same — Order of County Commissioners Included a Description of the Territory Covered by the Proposed City. Under a statute providing that upon the presentation of a petition asking that a city be incorporated, with boundaries therein stated, the county commissioners may make an order of incorporation which shall include a description of the territory covered, changes in the boundary being neither expressly forbidden nor expressly permitted, the proceedings are not invalidated by excluding from the order tracts included in the petition,, nor by including in the order tracts not referred to in the petition, where the tracts so included are parts of streets, or strips corresponding to streets, or form minor portions of tracts, the greater part of which were included in the petition, and such changes do not bring into the city any inhabitants who were not residents of the territory described in the petition.</p> <p>.8. Same — Petition for Incorporation — Description of Territory. In the part of a petition for the incorporation of a city describing the territory sought to be incorporated, a reference to a tract as an original town as platted and on file in the office of the register of deeds is to be interpreted as intended to designate all the territory covered by the original plat, notwithstanding an order had been made vacating two of the blocks and a part of the adjoining streets.</p> <p>'.9. Same. Various apparent inconsistencies and obscurities in describing the boundary of the territory incorporated held to be cured by applying the usual rules of interpretation.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Nonresident Defendant — No Fraud Shown in Procuring !Service. The record held not to show fraud in procuring service upon a nonresident defendant.</p> <p>2. Pleading — Amendment—Continuance Refused. The allowance of an amendment to the reply without granting a continuance held not to have been prejudicial.</p> <p>3. Trial — Case Taken from Jury — Not Material Error. The taking of a case from the jury held not to constitute material error, because, although a formal issue of fact was presented, the real matters in controversy turned wholly upon questions of law.</p> <p>4. Insurance — Solicitor’s Contract — Overdue Premium Notes — Commissions. Under a contract that where an insurance solicitor should accept a premium note he should be paid by his employer a cash commission, to be charged back to him if the note should remain unpaid for six months after maturity, no provision being made for his subsequently receiving credit for it under any circumstances, the right of the agent to the commission ceases when a note, without the fault of the employer, has remained unpaid and overdue for six months, and is not restored by a subsequent extension or collection.</p> <p>5. Same — Unpaid Premium Notes — Action to Recover Commissions Paid Thereon. In an action upon such a contract to recover from the agent commissions paid him on notes that remained unpaid for six months after maturity, it is not incumbent on the plaintiff to show that it had taken affirmative steps to enforce their collection.</p> <p>6. Trial — Evidence. Rulings concerning the admission and rejection of evidence held not to constitute prejudicial error.</p>

<p>OPINION DENYING A REHEARING.</p> <p>Appeal from McPherson district court; Frank F. Prigg, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Wrongful Death — Injuries to Licensees While Inspecting Cars— Negligence of Switching Crew. At a junction of two railroads a certain track owned by one of the railroad companies was designated as a transfer track and was used by both companies for the purpose of the transferring of cars from one line to the other. Before a transfer was made, an inspection by the receiving company was required, and it was the custom for the delivering company to place cars intended for transfer upon the transfer track. When they were so placed they were supposed to be ready for inspection by the inspectors of the receiving company. The delivering company had notified the receiving company that an incoming train had a car of live stock intended for shipment over the line of the receiving company, which had a train going out shortly after the arrival of the train of the other company. When the train of the delivering company pulled into the yard it ■placed three of the cars of the train apart from the others upon the transfer track. One of the three was not intended for transfer, and an effort was made to take it out at the north end of the transfer track, but that was found to be impracticable, and the three cars were then left together on the transfer track where cars were customarily placed for inspection and transfer. Inspectors of the receiving company then proceeded to make an inspection of the stock car, one of the three so set apart. T;he engine of the delivering company was taken around on another track to the south end of the yard and there attached to the remaining cars of its train, and without any signal or warning the train was pushed up with considerable violence against the three cars set apart, one of which was being inspected, and the collision resulted in killing two inspectors. In an action to recover for their death it is held that they are to be regarded as invitees, and that under the circumstances the delivering company was bound to anticipate that inspectors might be about the cars, and that reasonable care should have been exercised and reasonable warning given to-them of the approach of the train before colliding with the cars so set apart; and whether the delivering company, was guilty of negligence or whether the inspectors were guilty of contributory negligence were questions for the determination of the jury.</p> <p>2. Same — Evidence Supports the Findings. The evidence examined and held to be sufficient to support the special findings made by the jury, which in effect held that the defendant was negligent and that the deceased inspectors were not guilty of contributory negligence.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — Contract of Member to Change Beneficia/ry— Change Not Complete — Rival Claimants — Equities. Generally the rights of holders and beneficiaries under fraternal benefit certificates rest solely upon the contract between the member and the association as found in its constitution and by-laws. But when potent and manifest equities appear in favor of some of the rival claimants by reason of contracts made and carried out with the deceased member, the association raising no objection, the contest may become one purely for equitable cognizance and determination.</p> <p>2. Same — Right of Member to Change Beneficiary. While ordinarily the member has no vested right in the fund, still by an agreement to change beneficiaries in consideration of funds advanced he may so bind himself as to preclude his beneficiary or heirs from asserting their claim to the proceeds against a party who advanced large sums on the strength of such agreement, although a completed change of beneficiary was not made in accordance with the constitution and bylaws of the association.</p> <p>3. Same — Contract to Change Beneficiary — Money Loaned — Premiums Advanced — Rights of Claimants Determined Upon Equitable Considerations. The holder of a fraternal benefit certificate in consideration of loans advanced and to be advanced and premiums paid and to be paid by his brother made him beneficiary. Later a son of the brother repaid his father and made further advancements to the member upon consideration of being substituted as beneficiary. The request for cancellation of the certificate and issuance of a new one with the nephew as beneficiary was duly executed by the member and turned over to the brother, who delivered it to his son, but it was never transmitted to the association. After the member’s death, the nephew who had advanced considerably more than his promised portion of the proceeds of the certificate, and two sons of the former member who died leaving no beneficiary, became rival claimants for such portion of the fund, the association paying the money into court and raising no question as to change of beneficiary. Upon the amended petition and opening statement for plaintiff, disclosing substantially the foregoing, judgment was rendered for the defendants. Held, error, and that all the evidence should be received and the cause determined upon equitable considerations.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Pleadings — Petition—Motion. A motion to require a plaintiff to make his petition more definite and certain by setting out facts which are evidentiary in their nature is properly denied, where the ultimate facts to be proved are alleged.</p> <p>2. Same — Petition—Demurrer. The petition and demurrer thereto have been examined, and it is held that the demurrer was properly overruled.</p> <p>S. Trial — Court Excluded Incompetent Evidence. A trial court does not commit error in excluding incompetent and irrelevent evidence, although no objection is made by the party against whom the evidence it attempted to'be introduced.</p> <p>4. Trial — Error in Admission and Rejection of Evidence. Certain contentions of error in the admission and exclusion of evidence have been examined and found not sufficiently prejudicial to warrant a reversal of the judgment, under section 581 of the code of civil procedure.</p> <p>5. Trial — Demurrer to Plaintiffs Evidence. Where a petition states a cause of action and the evidence tends to prove that cause of action, it is not error for the court to refuse to withdraw all evidence of damage from the jury or to refuse to sustain a demurrer to the plaintiff’s evidence.</p> <p>6. Trial — Exemplary Damages — Instructions. Instructions concerning exemplary damages, although correct, but erroneously given, will not cause a reversal of a judgment where the verdict of the jury shows that no exemplary damages were allowed.</p> <p>7. Trial — Damages—Motion to Set Aside Verdict Denied. In an action for damages, it is not error to refuse to set aside a verdict, where the several items of damage allowed by the jury are proved and the findings of the jury are consistent with each other and with the general verdict.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Gifts — Inter Vivos — Undue Influence — Burden of Proof. Rule followed that persons enjoying a confidential relationship with the grantor of gifts inter vivos have the burden of showing that such gifts were made without undue influence.</p> <p>2. Same — Undue Influence — Question for Jury. Rule followed that the fact of undue influence is ordinarily a proper question for the jury.</p> <p>3. Same. The facts surrounding gifts of land and personalty by a mother to her three sons about three days before her death and during her last illness, and other attendant and related circumstances, examined and held sufficient to present a fair question of undue influence .in an action by a daughter who was deprived of a share of her mother’s estate by the gifts in controversy.</p>

<p>Appeal from Crawford district court; Andrew J. Curran, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Payment Indorsed thereon — Limitation of Action. A receipt of money indorsed on the back of a promissory note after the . statute of limitations has barred action does not indicate part payment by the maker which would revive liability.</p> <p>2. Same. In an action on a note bearing such an indorsement the petition must allege payment by the debtor in order to remove the apparent bar of the statute.</p> <p>3. Same — Petition—Amendment—New Cause of Action — Limitation of Action. In an action on a note bearing such an indorsement, commenced within five years (the statutory period) after the date of the indorsement, the petition did not contain an allegation of the kind mentioned. More than five years after the date of the indorsement the petition was amended to include such an allegation. Held, a cause of action was then stated for the first time, and too late.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Indemnity Bond — Failure to Give Notice of Default — Surety Suffered No Damage Thereby — No Defense to Action on Bond. Failure to comply with a provision in an indemnity bond issued by a surety company which required the obligee to give written notice of the default within ten days after learning of the fact is no defense to an action on the bond where it is neither claimed nor proved that the company suffered any loss or damage from the failure to give notice. (Republic County v. Guaranty Co., 96 Kan. 255, 150 Pae. 590.)</p>

<p>Appeal from Wyandotte district court, division No. 2; Frank D. Hutchings, judge.</p>

<p>Appeal from Crawford district court; Andrew J. Curran, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurisdiction — To Declare Trust in Land in Another State. Where a court of general jurisdiction has secured jurisdiction of the parties who hold the legal title to land in another state, it may render a judgment to impress a trust as to such land and order the trustees to execute a conveyance thereof; and the possible difficulties which may attend the enforcement of its judgment do not in any wise abridge its jurisdiction.</p> <p>2. Nonresident Dependants — Voluntary General Appearance. Where defendants who have been summoned personally and defendants who have been summoned, by publication service join in a pleading or motion raising questions of law and questions of fact involved in the general issue of a cause, a general appearance is thereby entered by all the defendants.</p> <p>3. Oral Agreement to Will Property — “Heirs” to be Benefited. Where a husband and wife agree to make wills of all their respective properties in each other’s favor upon condition that the survivor of the two shall make a new will after the death of the first bequeathing the property received by such a will to the heirs of the deceased spouse, the heirs intended to be benefited thereby are the next of kin who would take under the statute of descents and distributions.</p> <p>4. Same — Statute of Frauds — Statute of Trusts and Powers. Neither the statute of frauds nor the statute of trusts and powers is a bar to the enforcement of an oral agreement to make a will when it has been fully performed by one of the parties, following the rule announced in Gemmel v. Fletcher, 76 Kan. 577, 92 Pac. 713, and Smith v. Cameron, 92 Kan. 652, 141 Pac. 596.</p> <p>5. Evidence — Interest of Witness — No Disqualification. There is no disqualification of witnesses in this state merely because such witnesses are directly or indirectly interested in the outcome of a lawsuit, but their interest may be shown as affecting their credibility. (Civ. Code, § 317.)</p> <p>6. Practice — Findings—Conflicting Evidence. Rule followed that the trial court’s findings of fact, when based upon sufficient though disputed or conflicting testimony, will not be disturbed on appeal.</p> <p>7. Variance — Pleading and Proof. Where a judgment is not traceable to a variance between the pleading and the proof, and that variance is not brought to the attention of the trial court, the variance can not be made the basis of reversible error on appeal.</p> <p>8. Oral Agreement for Mutual Wills — Performance by Wife — Breach by Husband — Land Held in Trust for Benefit of Wife’s Heirs. A husband and wife without children made an oral agreement to make wills of all their property in each other’s favor upon condition that when one of them died the surviving spouse would make a new will bequeathing the property received by such a will to the heirs of the deceased spouse. In accordance with this agreement both made such wills. The wife died first. Thereafter the husband, in violation of' the agreement, made a will bequeathing all his property to his own kindred, including what he had received by his wife’s will, and cutting off entirely the heirs of the wife, her parents. Held, that those who took title to the husband’s property under the will made in breach of the agreement did so as trustees for the benefit of the wife’s parents, and where the parents died during the progress of the litigation pertaining to the enforcement of such trust, the trustees will be decreed to hold the title of the property as a constructive trust for the benefit of the heirs and legal representatives of the wife’s parents.</p>

<p>SYLLABUS BY THE COURT. '</p> <p>1. Negligence' — Coemployee— Personal Injuries — Evidence. The evidence examined and held to warrant a finding of negligence on the part of the engineer of a switch engine which struck a brakeman who, in the course of duty, alighted from the tender of a road engine as it was in the act of stopping on a track next to the one which the switch engine was using.</p> <p>2. Same — No Assumption of Risk — Statutes. The brakeman did not assume the risk of injury occasioned by the negligence of the engineer, because of the provisions of section 1 of chapter 239 of the Laws of 1911, making a railway company liable in damages to an employee for injuries resulting in whole or in part from the negligence of a coemployee.</p> <p>3. Same — Contributory Negligence — DimimMon of Damages. Contributory negligence of the brakeman did not bar. recovery of damages from the railway company and could be considered only in diminution of damages. (Laws 1911, ch. 239, § 2.)</p> <p>4. Same — Contributory Negligence — Findings—Verdict Not Excessive. The evidence examined and held the jury were justified in acquitting the brakeman of great fault. Presumably the amount of negligence attributed to him was small, and in the absence of special findings it can not be said that the jury did not deal justly in the matter of damages, the verdict being for a reasonable sum.</p> <p>5. Same — Negligence of Coemployee — Proximate Cause of Injuries¡ When the brakeman alighted he slipped on icy ground, was overbalanced by the weight of an appliance which he held in one hand, and in order to regain his balance took a step.or two toward the track on which the switch engine was negligently operated. He was struck by the pilot bar of the switch engine and injured. Held, the negligence of the engineer of the switch engine was the proximate cause of the injury.</p> <p>6. Same — Injuries—Findings—Damages. The evidence examined and held that the jury were authorized to conclude that certain physical disabilities of which the brakeman complained were the result of his injury.</p>

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

<p>Appeal from Jackson district court; Oscar Raines, judge.</p>

<p>Appeal from Republic district court; John C. Hogin, judge.</p>

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

<p>Appeal from Sedgwick district court, division No. 2; Thornton W. Sargent, judge.</p>

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

<p>Appeal from Sedgwick district court, division No. i; Thomas C. Wilson, judge.</p>

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

<p>SYLLABUS BY THE COURT.</p> <p>Real-estate Agent — Fraud—Instructions—Commissions. In an action by Corwin and Wolf to recover commission for effecting the exchange of real property for the defendant, Spencer, where the evidence tended to show that Tate, acting for Corwin and Wolf, secretly agreed to pool commissions with Moseley, the agent of Noah Mortimer, the other party to the exchange, and that Spencer was thereby defrauded of a part of the real property owned by her, it was error to instruct the jury that any secret arrangement between Tate and Moseley with reference to pooling commissions would not be binding on Corwin and Wolf nor defeat their right to recover commission for making the exchange.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Deceased Administrator — Right of Successor to Sue Deceased Administrator’s Estate. An administrator appointed to succeed a deceased administrator can maintain an action against the estate of his predecessor to recover the unadministered assets of an estate and for an accounting.</p> <p>2. Same. Rule followed that an administrator’s action against the es- ' tate of a deceased administrator is not limited to the one on the administrator’s bond, following Hudson v. Barratt, 62 Kan. 137, 147, 61 Pac. 737.</p> <p>3. Same — ‘‘Unadministered Assets” of an Estate. Where a personal estate consists of money and mortgages which have been reduced to money,' the money, when not disbursed as directed by the will or by the probate court, is “unadministered assets” to which an administrator is entitled on the death of a preceding administrator.</p> <p>4. Will — Construction—Life Estate Created. The text of a will examined and, aside from specific bequests therein made, held to create only a life estate in personalty, in money and mortgages, following Chase v. Howie, 64 Kan. 320, 67 Pac. 822.</p> <p>5. Action — Against Deceased Administrator’s Estate — Petition States Cause of Action. A petition in an action brought by an administrator in succession against the estate of a preceding deceased administrator who was also the life tenant of an estate in personalty examined and held sufficient against a demurrer based on the statute of limitations.</p>

<p>Appeal from Sedgwick district court, division No. 1; Thomas C. Wilson, judge.</p>

<p>Appeal from Montgomery district court; Thomas J. Flan-NELLY, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Interstate Shipping Contract — Delay—Damages—Time of Commencing Action — Divisible Contract. A contract for the transportation of an interstate shipment of live stock on the customary printed form used by carriers, and signed by the carrier and the shipper, contained a provision that no action should be maintained to recover any dam- ■ ages for loss or injuries arising out of the transportation unless commenced within six months from the time the loss or injuries occurred. It contained also a number of provisions by which the carrier sought to limit its liability for loss occasioned by its own negligence which are against public policy and unenforceable. Held, that the contract is not void in toto on the ground that it violates section 20 of the commerce act, approved June 29, 1906, known as the Carmack amendment; that the contract should be regarded as divisible, in view of its general use by interstate carriers with the approval of the interstate commerce commission, and therefore plaintiff’s failure to commence his action within six months after the loss and injury occurred bars his right to recover.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Mechanic’s Lien — Foreclosure—Petition—Misnomer—Amendment— Limitation of Action. A petition to foreclose a lien for material alleged that over three hundred dollars had been paid on the account. In the exhibits the subcontractor’s statement named the owner as S. D. C., the notice of its filing giving her name as Mrs. S. D. C., and the petition averring that the property belonged to Amanda E. C., and that she is the same person as the one named in such notice. After a demurrer had been overruled the petition was permitted to be amended by inserting “Mrs.” before the name in the subcontractor’s statement. Held, that such amendment was proper although made more than one year after the filing of the lien. (Civ. Code, § 653.)</p> <p>2. Same — Judgment on Pleadings — Erroneously Given. In passing on the motion for leave so to amend the court found that the person named in the lien statement is the defendant Amanda E. C. and that she “has been commonly known and designated in her business transactions in the community in which she lives as Mrs. S. D. C.” Thereafter defendant’s motion for judgment on the pleadings was sustained. Held, ‘ error.</p> <p>3. Same. One may, without abandoning his real name and without fraudulent intent, adopt any name different from his and by which he may transact business, execute contracts, sue and be sued.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Automobile — Crossing Railroad Track — Duty of Driver. The driver of an automobile can not recover damages for injury to himself and his machine, where he approaches a railway track at a place at which he can not see along the track until his automobile is in a place where it will be struck by a passing engine or cars, and does not stop his car to ascertain whether or not there is danger, although he listens before going into the place of danger and does not hear any engine or cars coming.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. PLEADINGS' — Pleading a Conclusion of Law — Motion to Strike Out. Pleadings being for the information of the court and the litigants and not for submission to the jury, it is not ordinarily reversible error to overrule a motion to strike out a defense which pleads a conclusion of law even though such pleading be an erroneous statement of law.</p> <p>2. Partnership Note- — Liability of Partners — Competent Evidence. Where, in a defense to a partnership note, the testimony of a witness was offered which tended to show that the note in question was a mere renewal of the individual obligation of one of the partners, it was proper to cross-examine the witness with a view to developing these facts completely and precisely, and sustaining an objection to such cross-examination was erroneous and prejudicial.</p> <p>3. Same. In an action to recover on a note alleged to have been executed on behalf of a partnership, where evidence of a defendant partner was given to the effect that owing to the confused state of the partnership accounts the defendant and his partner “could not complete the partnership,” when the partnership had in fact been formed and had been in effect for three months at the time to which the evidence referred, such evidence was incompetent and its admission tended to, confuse and mislead the jury as to the legal responsibility of the defendant as a partner.</p> <p>4. Partnership — Implied Liability of Each Partner- — -Partnership Notes. Proof of a trading partnership having been established, the authority of each partner to execute promissory notes in furtherance of the partnership business is implied by law, and it was incompetent and prejudicial to permit a defendant partner to testify before the jury that he had not in fact authorized his partner to sign any notes for the partnership firm.</p> <p>¡5. Same — Partnership Note — Trial — Evidence — Demurrer. Although the lawful defenses of a partner sued on a partnership note are narrow and limited, yet a demurrer to the evidence in support qf such a defense is properly overruled if the evidence contains but a modicum of probative value tending to show the nonliability of the defendant partner.</p> <p>•6. Partnership Note — Instructions as to Liability of Each Partner. Where a trading partnership has been established by the facts and no notice of its discontinuance or dissolution has been given, a plaintiff is entitled to have a plain and simple instruction given to the jury declaring the liability of each partner on a partnership note issued in furtherance of the partnership business, notwithstanding that other instructions may properly have been given covering the lawful defenses pleaded by the defendant partner.</p> <p>7. Same — Debt for Which Note Wets Given. In an action on a partnership note the right of the plaintiff holder to recover thereon is not affected by a question whether the proceeds of the note were in fact . used' for the benefit of the firm or its business.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Rural High School — Legality of Organization — Can be Raised Only by the State. The principle that the state alone can question the legality of the organization of a municipal corporation applied in an action brought by a taxpayer, suing under section 265 of the civil code, to enjoin a rural high-school district from securing a site for a school building and from issuing bonds for the construction of a school building.</p> <p>2. Same — Locating Schoolhouse Site — Petition for Election — Location Sufficiently Definite. Chapter 311 of the Laws of 1915, relating to the establishment of rural high-school districts, provides that the petition to the board of county commissioners to call an election to vote on establishing and locating a rural high school shall state the proposed location of the school. A petition gave the proposed location as “within Ozawkie, Kansas,” Ozawkie being an unincorporated village within the boundaries of the proposed district. Held; the location was sufficiently definite, and that the district board, which is given power to secure a building site located as indicated, has authority to secure a site within the village of Ozawkie.</p> <p>3. Same — Election—Bonds for High-school Building — Ballots Not Defective. The statute referred to provides for voting on the subject of issuing bonds to construct a high-school building, the amount being stated in the petition, at the same time the organization of the district is voted on. It is held that ballots prepared according to the statute and used at an election were not defective because electors were given no opportunity to vote for constructing a 'building without issuing bonds.</p> <p>4. Same — Territory Lying in Two Townships — Election — Location of Voting Places. A proposed rural high-school district comprised territory lying in two municipal townships. The statute provides that the election shall be conducted according to the general election law when not contrary to the statute. It is held that the provision of the general election law requiring a separate polling place for each township is not applicable. Held, further, that if the general law were applicable, and but one polling place in the proposed district were designated!, the election would not be illegal or void unless electors were in fact misled or disfranchised.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Habeas Corpus — Arrest Under City Ordinance — Case Pending — Habeas Corpus Not the Proper Remedy. The purposes for which the writ of habeas corpus may be issued and the methods of obtaining the remedy may be regulated to some extent by statute, and under our statutory provision regulating the use of the writ it will be denied to one who has been arrested and is held for trial upon a complaint in a court of competent jurisdiction where the ordinary remedies are available to him and where the questions as to the validity of an ordinance and the legality of his arrest may be promptly determined.</p> <p>2. Same — Arrested on View — Written Complaint Filed. The statutory restriction to the effect that the writ shall not be issued when the person has been arrested and is held upon a warrant or commitment issued from a court of competent jurisdiction uppn an indictment or information applies to a case where the person was arrested while engaged in the commission of an alleged offense and where a written complaint is promptly filed in the court as the statute authorizing such an arrest provides.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Workmen’s Compensation Act — Personal Injuries — Contributory Negligence of Plaintiff — No Bar to Recovery. In an action under the workmen’s compensation act (Laws 1911, ch. 218) the admitted facts showed that plaintiff was injured by being caught in the revolving cylinders of a machine while standing in or upon it and applying compressed air for the purpose of cleaning the cylinders. Covers or hoods were provided for use when the machine was in operation, but in order to clean the machine the covers had to be removed. The plaintiff could have stood on the ground and applied the air without danger of coming in contact with the revolving cylinders. On these facts and others stated in the opinion it is held that plaintiff is not barred from the right to recover compensation by the provision of section 1 of the compensation act on the ground that his injury resulted from his deliberate intent to cause the injury or from his willful failure to use a guard provided for him as protection against accident.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. “Fiscal Year”- — -What it Emfiraees. The term “fiscal year” is the year embraced in the annual term for the opening and closing of financial accounts.</p> <p>2. Same — When “Fiscal Year” in Leavenworth County Begins. The “fiscal year” in Leavenworth county, for the regulation of its county finances and for the opening and closing of its financial accounts, begins on the second Tuesday in October of each year.</p> <p>S. County Warrants — Limitation of Issue. The issue of warrants in any one fiscal year to defray the general expenses of Leavenworth county is limited to the maximum revenues which the levy for that fiscal year will produce, and is determinable by a calculation applying the levy to the assessed valuation of the county.</p> <p>4. Same. The board of county commissioners of Leavenworth county has no power to issue county warrants for the payment of current expenses in excess of the revenues to be derived from the general tax levy made to meet such expenses.</p> <p>5. Same. The board of county commissioners of Leavenworth county has no power to issue county warrants in any one year to be redeemed by anticipating and impairing the revenue of succeeding years.</p> <p>•6. “Fiscal Year” — County Commissioners No Power to Change. The board of county commissioners of Leavenworth county has no power to change the beginning of the fiscal year from the second Tuesday of October, 1914, to January 1, 1915, to serve the temporary financial convenience of the county.</p> <p>7. Same — Certain Former Opinions Disapproved. The cases of Garfield Township v. Dodsworth, 9 Kan. App. 752, 58 Pac. 565, and Garfield Township v. Hubbell, 9 Kan. App. 785, 59 Pac. 600, disapproved as precedents governing the case at bar.</p> <p>8. Void County Warrants — Issued for Valid Indebtedness — May be Paid How. When county warrants have been issued in excess of the general maximum revenue fund for the current fiscal year, but for which the county got value received, they can be paid in two ways; (1) by the slow collection of delinquent taxes and miscellaneous items which may inure to the general revenue fund; or (2) by application to the legislature and obtaining its sanction authorizing their payment out of later general revenues of the county.</p> <p>9. Void County Warrants — Purchasers Subrogated to Rights of Original Creditors — Payment by Future Levies. Where county warrants are void only because issued in excess of the maximum revenues derivable from the general levy for the current fiscal year, the holders of such warrants are subrogated to the rights of the original creditors whose claims against the county were the basis of such void warrants; and if the claims were lawful, the county is liable to the subrogated holders of such claims and provision may be made to meet their payment in .future annual levies, but no such future annual levy can exceed the maximum fixed by statute.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Statute op 1862 — Restraining Issue of County Warrants — Still in Force and Effect. The act of March 5, 1862, entitled, “An act to restrain the issuing of county warrants,” is still in full force and effect, except as modified by later enactments fixing maximum tax levies for current county expenses.</p> <p>2. Same — Former Decision Distinguished.. The case of Bartlett, Treas., v. A. T. & S. F. Rid. Co., 32 Kan. 134, 4 Pac. 178, examined and held to have had no concern with the inhibitions in the act of March 5, 1862, forbidding boards of county commissioners and county clerks from issuing county warrants in any one year in excess of the revenues to be derived from the tax levy for such year.</p> <p>8. Statutes — Conflicting Provisions — Later Act Supersedes. Where a conflict exists between a later and an earlier act of the legislature, and where the later act does not attempt to cover all the provisions of the earlier act, both acts ordinarily remain in force except on the point where the acts are in conflict, in which respect the later act supersedes, repeals or modifies the inconsistent terms of the earlier enactment.</p>