The Topeka state journal. [volume], May 08, 1894, Page 6, Image 6

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STATE J OFRNAL, TUESDAY EVEXINa. MAY 8. 1894.
Published May 9, 189J.
Snpreme Court Syllabi
7117.
C. H. Mabry vs, Ttaos. Harp. Administrator of
the Estate of Joel Stewart. Deceased.
Error from Cowley County.
REVERSED.
Bl THt CODET.
Syllabus.
HORTON, C. 3
L, Annual crops, like wheat, which are the
product of industry and care, sown by the
owner of the soil, or his tenant, while growing
and immatured. are personal property.
2. Where a person in good faith purchases
of a tenant, having a term less than two years,
an interest in his lease without the assent of
the landlord. such contract is voidable only.
not absolutely void, fc-ach contract with the
subsequent assent of ttie landlord is valid. If
he refuses to assent, the sub-tenant cannot, as
against his objection, take possession of the
premises, or any of the growing crop under
the lease.
All the justices concurring.
A true copy.
Attest: C. J. BROWN,
seal Clerk Supreme Court.
5oa
The State of Kansas on the Relation of John
T. Little, Attorney General vs. The Dodge
City, Montezuma & Trinidad Railway Com
pany, et al.
Original Proceeding In Mandamus.
f
PEREMPTORY WRIT DENIED.
Stllabus.
Bt thi Coubt. Hobios, C. J
Where a railway company owning a short
line of railroad of twenty-six miles only, is
wholly insolvent, and such company has no
cars or entities with which to operate it,
and no funds or property to be applied for the
payment of the expenses of the company or
the road, and the use of the road has been
abandoned for several months, and the road
cannot be operated, except at a great loss, by
any corporation or person, not taking into ac
count the repairs of the road and the taxes
thereon, the supreme court, having some dis
cretion in the granting of a writ of mandamus
will not compel, by a peremptory writ, the
railway company to replace or put into repair
Its track, a part of which ha been torn up, a
such an order would be useless or futile and
of no public benefit.
All the justices concurring.
A true copy.
Attest : C. J. BROWN,
(seal Clerk Supreme Court.
6500.
E. S. Ralston. Trustee, Ed. F. Burrell, Clerk,
and H. J. Uyles. Treasurer, et al. vs. The
Vod.nu City, Montezuma, & Trinidad Kail
way Company. E. t. Kellogg. Harry Benja
min, et al.
Error from Ford County.
AFFIRMED.
6TI.LABU9.
Btthi Codst. Horton.C. J
1. Each organized township in this state
Is a body politic and corporate, and its proper
name may sue and be sued.
vL A township may bring an action in it3
own proper name, but the trustee or other
otlicers of the township are not the proper
plaintiffs in an action intended to be brought
by the township, or for the benetit of the
township, or in the interest of the people
of the township.
Ail the justices concurring.
A true copy.
Attest: C. J. BROWN,
eal.J Clerk Supreme Court.
9123.
The City of El Dorado vs. C. O. Beardsley.
Appeal from Butler County. -AFFIRMED.
STLLABUS.
Bt the Codki.
HOETON, C. J
1. An ordinance of a city prohibiting the
sale of intoxicating liquors within the limns
of such city, except by persons having a per
aell, as provided for by the laws of
laws of the state, is not an ordinance to regu
late the sale of intoxicating liquors, but to
prohibit the sale thereof.
2, Where a police court of a city has jurisdic
tion to try and punish a party for the
violation of a city ordinance, when the
prosecution is for that violation alone, the
court ha also the power to try and punish a
party for the commission of several violations
of the same ordinance if united in the same
complaint. In such case, punishment for
the different violations cf the same
ordinance is not to be aggregated
ho as to make a single or entire punishment
for all the violations, but the sentence for each
violation is to be Imposed separately and as
for a separate offense.
AH the justices concurring.
A true copy.
Attest: C.J.BROWN,
seal Clerk Supreme Court.
7031.
A. P. Kelly, and W E. Kelly, Copartners as
The Prairie .Lumber Company vs. Benjamin
F. Martin.
Error from Flaney County.
REVERSED.
Syllabus. By the Coubt. Hobtoit. C. J
Where the notice to tak a deposition Spec
ifies "that the taking will be adjourned from
day to day," it is not error for the notary, be
fore whom the deposition is taken, to adjourn
the taking of the deposltiyn from iay to day,
at the instancu of the attorney for the party
giving the notice, where neither the opposing
party, nor his attorney appears at anytime
before such notary public, andthere Is no con
tention that the adjournments were taken for
the purpose of annoying the opposing party,
or preventing cross-examination, or causing
any unnecessary expense or delay.
All the justices concurring.
A true copy.
Attest. C. J.BROWNT
seal Clerk Supreme Court.
6S1&
The Orchard Place Land Company vs. Eugenia
A. Brady and the City of Kansas City.
Error from Wyandotte County.
AFFIRMED.
Syllabus.
Btthi Coubt.
Hobton.C. J
-,Tter a city. In grading one of Its streets,
filled up a natural water course, and as a sub
stitute for the water course or channel
constructed a small sewer or culvert
under the grading or embankment on
the street, and with the consent of
a land company extended the same sev
eral feet upon its private property, and the
land company graded up its lots and contin
ued the city sewer or culvert through its own
property by joining its sewer or cuivert with
the city sewer, and subsequently the sewer or
cuivert of the land company, on account of its
negligent construction and maintenance, fell
In and obstructed the sewer or" culvert built
by the city, and thereby caused the overflow
of the waters formerly carried off by the
natural water course, HrUl. That the land
company is liable for the damages caused by
such obstruction of the fewer and the overflow
of the waters resulting therefrom.
All the justices concurring.
A true copy.
Attest: C. J. BROWN,
seal Clerk Supreme Court.
?11Z
John P. Freese vs. Edward Scouten, et aL
Error from Kiowa County.
REVERSED.
Syllabus.
Btthi Coubt.
Hostos, C. J
V that Is required of an applicant to
make an entry and a purchase of a tract of the
Osage Indian trust and diminished reserved
lands Is that he shall have all the qualifica
tions of a pre-emptor; that he shall be an
actual settler on the land at the date of his
entry, and that he shad make full payment
therefor.
a. A mortgagee from an entry man of a
tract of Osage Indian trust and diminished
reserved lands after final receipt is given, and
before the Issuance of the patent, takes his
mortgags subject to the supervisory power of
the commissioner of the general land office of
the United States.
8. If the applicant or entryman having all
the qualification of a pre-emptor and being
an actual settler on the land at the date of his
entry, purchases and pays for a tract of the
Osage Indian trust and diminished reserved
lands, and after obtaining his final receipt,
executes a mortgage to another party upon
the land, and then for the express purpose of
defrauding the mortgagee, enters into a col
lusive and fraudulent agreement with a third
fterson to have his lawful entry cancelled and
n pursuance thereof a collusive contest Is
commenced by such other person against the
entryman, and by the collusion and fraud of
the parties, the United States land officers are
Imposed upon and a cancellation of the entry
Is obtained so as to apparently transfer the
title and interest of the entryman to such
other person ; Held, That as to the mortgagee,
having no notice of the contest or of any of
the proceedings, such cancellation, having
been obtained by collusion and fraud of the
Earties thereto, does not bind or conclude
im.
All the justices concurring.
A true copy.
Attest: C.J.BROWN,
seal Clerk Supreme Court.
950.
The State of Kansas vs. John Sutton.
Appeal from Reno County,
REVERSED.
Syllabus. ' By the Coubt. Hoeton, C. J
Under section 3. chapter 121, sess. laws of
1871, (parg. 2212, gen. stat. ltWU) and section 92
of the act relating to crimes and punishments
(parg. 2-22G, gen. stat. 189) a person who unlaw
fully and feloniously receives any poods or
property stolen, taken and carried away from
a railroad depot, station house, passenger
coach, express or freight car, knowing the
same to have been s feloniously stolen from
such a place, is guilty of a felony without re
gard to the value of the goods or property so
stolen.
Johnston, J., concurring.
Allen, J., dissenting.
A true copy.
Attest: C.J.BROWN,
seal Clerk Supreme Court.
9631.
George D. Hale vs. Oscar Bischoff.
Proceedings In Quo Warranto.
JUDGMENT FOR PLAINTIFF.
Syllabus. BytheCoukt. Horton, C. J
1. Where a statute authorizes the appoint
ment of an official and declares the tenure of
the office, and is silent on the point as to the
beginning of the first appointees term, the
commencement of the official terra begins to
run from the date of the appointment.
2. Tho oHice of city assessor of the city of
Toneka, under the statute and the first ap
pointment made by the mayor ana city coun
cil on February f, 1S.-2, commenced to run
from that date. Each succeeding term of twi
years followed each other in regular order, the
one commencing where theotber ended.
3. Where the term of a city otlicial is fixed
at two years and a person is appointed to the
office for one year only, the appointment is
valid for the full statutory period.
4. Where an appointment to an office Is
made during a vacancy fo a full term, this is
in legal effect an appointment to fill the vac
ancy only.
5. An officer whose offinlal term has expired
but who remains in possession of the iffice.
having full control thereof and exercising the
functions of the tame, it an officer ie facto.
and all bf his acts, within the limits of his
official power, are valid as respects the public
and third persons.
All the justices concurring.
A true copy.
Attest:- C. J. BROWN,
seal Clerk Supreme Court.
70CL
Boston Loan and Trust Company vs. W. M
Organ, A. O. Wharton and John S. Keuyon.
Error from Lyon County.
AFFIRMED.
Syllabus.
By the Court. Johnston, J
1. Mere Irregularities in the method of ob
taining the vacation of a judgment wrong
fully obtained and to which no objections
were made will not defeat the order vacating
such judgment; nor can the omission of a
verification to a pleading be regarded as a
fatal defect, where thy parties proceeded to
trial on the merits, without objection, as
though tho pleading was verified and the
issues properly joined.
2. Pleadings examined, and held, to be suffi
cient to autnorize the trial of the questions
submitted to the court, and the t-videiice
found to be sufficient to sustain the decision
vacating the judgment and permitting the
garnishee to come in and defend against the
claim of the plaintiff.
3. The garnishee in the action answered
and showed that the land which had been at
tached as the property of the defendant had
been conveyed to the garnishee in payment of
a just debt owing to him by the defendant,
and that the land when fairly valued ws
wholly inadequate to discharge the indebted
ness. There was an understanding betvveeu
the garnishee and defendant that if at any
time the former could obtain moe for the
property than the amount of the indebtedness
the surplus should be paid to the defendant.
Upon the trial it was t-hown that the d -bt of
the garnishee was bona fide and that the trans
fer of the real estate in satisfaction of the debt
was made in good faith, and the undisputed
testimony was that no interest remained in
the property beyond what was necessary to
satisfy the demand of the garnishee. Held,
That as a sale of the property under plain
tiff's attachment would yield nothing and
serve no beneficial purpose, the ruling of the
court discharging the garnishee and dissolv
lng the attachment was not error.
All the justices concurring.
A true copy.
Attest: C.J.BROWN,
seal Clerk Supreme Court.
7057.
E, S. Robinson vs. R. J. Waddell & Company.
Error from Franklin County.
AFFIRMED.
Syllabus.
By the Coubt.
Johnston. J.
In the absence of an agreement or counter
vailing equity the proceeds of a mortgage
given to secure several notes maturing at dif
ferent times should be applied to the pay
ment of the notes In the order of their
maturity; but where the payee of the notes,
who was the mortgagee, sells the notes to
another and indorses the two notes first ma
turing as an additional security and to induce
the assignee of the notes and mortgage to
purchase them, it was proper for the court, in
order to give effect to the purpose of the par
ties, to decree that the unindorsed notes
should have precedence in payment out of the
fund derived from the foreclosure and sale of
the mortgaged property.
All the justices concurring.
A true copy.
Attest: C. J. BROWN,
seal Clerk Supreme Court
7007.
Joseph T. Patterson vs. Benjamin C. Galusha.
. Error from Republic County.
REVERSED.
Syllabus.
Bt the Couet. Johnston, J.
G.. who owned a quarter section of land, con
veyed 140 acres of the same to P. in considera
tion that P. would assume and pay a mortgage
Indebtedness which existed against the land.
Afterward, G. brought an action to recover
from P. ten acres 6f the land or tho value cf
the same, alleging that P. had misrepresented
the nature and amount of the indebtedness,
and that 130 acres was sufficient consideration
for the debt assumed. Upon the testimony in
the. record It is Held, That the parties stood
upon an equal footing; that the nature and
amount of the debt assumed and the material
facts in the transaction were equally within
the knowledge of both: and that there was no
such deception and fraud on the part of P. as
will defeat the conveyance of the land or
justify a recovery in favor 6f G.
All the justices concurring.
A true copy.
Attest: C.J.BROWN,
seal Clerk Supreme Court.
7133. , .
Julius Wlnkelmeyer Brewing Association ys
M. K. Wolff and John Wolff
Error from Barton County.
AFFIRMED. "
Syllabus.
Bt thk Court.
Johnston, J
Error cannot be predicated upon the over
ruling .of a motion for a new trial where the
record fails to show that such motitn was filed
within three days after the judgment was
rendered.
All the justices concurring.
A true copy.
Attest: C. J. BROWN,
seal Clerk Supreme Court.
7118.
Clara N. Sellers, et al. vs. Henry Gay, et aL
Error from Wyandotte County.
AFFIRMED.
Syllabus. By the Court. Johnston. 3
The facts in the present case are found to
fall within the decision of Sellers vs. Crossan,
recently decided, and following that case it Is
held that the acts and conduct of the com
plaining parties estop them from disputing
the validity of the mortgages foreclosed In
favor of the defendants in error. Sellers vs.
Grossan. 52 Kas., ; 35 Pac. Rep. 205.
Ail the justices concurring.
A true copy.
Attest: C. J. BROWN,
seal Clerk Supreme Court.
9510.
The State of Kansas vs. Morgan A. Stickney.
Error from Nemaha County.
AFFIRMED.
Syllabus. By the Coubt. Johnston, J
lr Where a person breaks into a bulldins
Intending to commit larceny and does every
act essential to a burglarious breaking, the
mere fact that there was a detective with and
apparently assisting him in the commission
of the crime will not constitute a defense.
State vs. Jansen, 22 Kas., 4US.
2. If the entrance to the building was made
by the procurement and with the consent of
the owner, or by a person acting in his em
ployment, the breaking could not be regarded
as burglarious, but the fact that the owner
was willing to assist in and facilitate the de
tection ana arrest of the criminal is itself no
consent to the commission of thecTime.
3. The appellant was arrested and his pre
liminary examination was held eight days
before the trial. Two days before the trial
counsel was assigned to him, and on the day
preceding the trial he filed an affidavit for a
continuance, stating that he had not had suffi
cient time in which to prepare for trial and
set ting forth the testimony of an absent wit
ness whose testimony he desired. The state
consented that the affidavit for continuance
should be read as the do- osition of the absent
witness, and the court denied the continu
ance. JIcUI. That the denial of the motion was
not error.
4. Newly discovered evidwnce that dis
credits a witness or which is merely cumula
tive is not suiiicient cause fora new trial.
All the justices concurring.
A trite copy.
Attest: C. J. BROWN,
seal Clerk Supreme Court
7053.
The City of Kansas City vs. Emma C. Slang
strom. Error from Wyandotte County.
AFFIRMED.
Syllabus. By the Court. Johnston, J
1. While a city has power where It is
deemed necessary to divert a stream passing
through, its limits from its natural rourse and
to confine it to a narrower channel, in doing
so it must use reasonable care to prevent in
juiy to others, and if damage results to the
owners of private property from its negligence
or wrong-doing in this respect it will be liable
for the loss.
2. Where two or more parties by their con
current wrong-doing cause Injury toa third
person, they are jointly and severally liable,
and the injured party may at his option insti
tute an action and recover against one or all
of those contributing to the injury.
3. Special findings returned by the jiry are
to be considered together and if possible are
to be so construed as to harmonize them and
to uphold the general verdict.
i. The findings examined and held to show
that the damages recovered were the result of
the concurrent wrong doing of the city, and
another party, for the whole of which either
was liable, and that the findings are sufficient
to sustain the general verdict and the judg
ment. All the justices concurring.
A true copy.
Attest: C.J.BROWN,
seal Clerk Supreme Court
7101.
Laura L. Ferree va. C. E. Walker, et al.
Error from Wyandotte County.
DISMISSED.
Syllabus. By the Coubt. Johnston J.
1. When the time for making and serving a
case-made has elapsed, the judge is without
power to extend the time for that purpose or
to settle aud sign a case which may thereafter
be presented.
2. The jurisdiction of the judge to settle and
sign a case having been lost by lapse of time,
it can not be restored by the agreement of the
parties nor by any action which the judge
with their consent may take.
3. A statement cer iiied to be correct by the
clerk of the district court and which is ,ou
record of the court is not competent proof of
the alleged facts therein contained.
All the justices concurring.
A true copy.
Attest: C. J. BROWN,
seal Clerk Supreme -Court.
7113.
The Gregory Grocery Company vs. Young &
Conboy.
Error from Johnson County.
AFFIRMED.
Syllabus. By the Court. Johnston. J
Failing debtors gave preference to several
of their creditors over others by. executing
mortgages upon their property to satisfy what
were shown to be bona fide debts. An unse
cured creditor caused an attachment to be
levied upon some of the property upon the
alleged grounds that the debtors had and were
about to dispose of their property for the pur
pose of defrauding, hindering and delaying
their creditors. The district court upon a
hearing dissolved the attachment, and it is
held npon a review of the testiutony that the
ruling of the court was not erroneous.
All the judges concurring.
A true copy. .
Attest: C.J.BROWN,
seal Clerk Supreme Court.
95S2.
Charles W. Button. County Clerk of Cloud
County vs. The Citizens' .National BaoK of
Concordia.
Error from Cloud County. -
REVERSED.
Syllabus. By the Coubt. Allen, J
L The word credit as defined in paragraph
6S47, of the gen. stat. of lttsH. and used in the
chapter providing for the assessment and col
lection of taxes, does not include shares of
stock in a national bank, and the owners of
such shares have no right to deduct from their
assessed value the amount of their debts.
2. The statute of this state which permits
debts owing in good faith by any person, com
pany or corporation to be deducted from the
gross amount of credits belonging to such
person, company or corporation, in listing
their property for taxation, when the owners
of shares of stock In a national bank are not
allowed to deduct their indebtedness from
the value of such shares, is not in coniiict with
section 5219 of the general statutes of the
United States, does not operate to tax such
shares at a greater rate than other moneved
capital in the hands of individual citizens
and is valid ; the law providing that ail cor
porate stocks, all moneys secured by judg
ment, or lieu on real estate, all moneys on de-
nruft in unr bank, subiect to withdrawal on
demand, and substantially all moneyed capi
tl nlcvurrdescriDtioii invested for Drofit shall
be subject to taxation, without deduction of
indebtedness.
8. Injunction can not be maintained to
prevent the. collection of a tax which the
Fdaintiff justly ought to pay, for mere irregu
arities in the proceeding of the assessor, or
other taxi ng officer.
All the justices concurring. - .
A true copy. .
Attest: C.J.BROWN,
seal Clerk Supreme Court.
711 S.
Mary Buchtella vs. Frank Stepaneka.
Error from Republic County.
MODIFIED.
Syllabus. By the Court.
Allen, J
L A fraudulent transaction In which both
parties have knowingly participated - will
neither support a cause of action in favor of
the plaintiff, nor a counterclaim or judgment
for affirmative relief in favor of the defendant.
2.- Where parties purposely engage with
equal guilt in Illegal, immoral or fraudulent
dealings, the court leaves them where It finds
them, and will not lend its aid to either party.
All the justices concurring.
A true copy.
Attest: C. J. BROWN,
seal Clerk Supreme Court.
7120.
Daniel Hennigh and Mary Hennigh vs. Com
. mercial National Bank.
Error from Labette County.
- AFFIRMED.
Syllabus.
By the Court.
Allen, J
In this case a petition In error was filed in
the district court to reverse a judgment of a
justice of the peace for error in excluding tes
timony, but as neither the motion for a new
trial, notice of the time of hearing the same.
no" the action of the justice of the peaces
tnereon is incorporated in ttie Dill or excep
tions, such errors could not be considered, and
the district court rightly affirmed the judg
ment. All the justices concurring
A true copy.
Attest: C J. BROWN,
seal Clerk Supreme Court
'. i 8.
State of Kansas, ex. rel. J. D. Naylor, County
Atorney, vs. The Dodge City. Montezuma
and Trinidad Railway Company, et al.
Error from Gray County.
REVERSED.
Syllabus.. By the Court.
Allen. J
The road bed and superstructure of a rail
road built under a charter, obtained in ac
cordance with the laws of the state, is charged,
not only in the hands of the original corpo
ration, but of purchasers as well, with the bur
den of the company's charter obligations and
cannot be diverted from the purpose to which
it was devoted, nor relieved from this burden
without the consent of the state duly ex
pressed by the legislature, or other competent
autbeiity.
All the justices concurring.
A true copy. .
Attest: C.J.BROWN,
seal Cieik Supreme Court.
7127.
Morgan County in the State of Missouri vs
John D. McRae.
Error from Linn County.
AFFIRMED.
Syllabus.
By the Court.
Allen, J
Sureties on a bond conditioned for the erec
tion in accordance with certain plans and
specifications and keeping in repair of bridge
abutments, are released from liability by a
substantial chaDge in the plans of tho work
made by the pi incipal, and accepted by the
obligee of the bond, without their knowledge
or oonsent
All the justices concurring.
A true copy.
Attest: C. J. BROWN,
seal Clerk Supreme Court.
9328.
The State of Kansas vs, Fred Miller.
Appeal from Douglas County.
AFFIRMED.
Syllabus. By the Court. Allen, J
1. To constitute the crime of robbery by
forcibly taking monny from the person of its
owuer. it is not necessary that violence to the
person of the owner should precede the tak
ing of the money, it is sutlicient if it be con
temporaneous with the taking.
2. Where the court charged in substance
that the violence to the per--oii of the owner of
the money must have been with intent to rob,
and that the money must have been "obtained
from the money drawer" in the presence of the
owner, by means of force 'and violence to his
person and against his will, He Id. That under
the facts of this case, the word obtained'
fairly expressed the same idea as the word
taken, and that no error was committed by
the use of the word.
All the justices concurring.
A truo copy.
Attest: C.J.BROWN,
sjeal Clerk Supreme Court.
7073.
Noyes Splcer vs. Martin L. AVhecler.
Error from Greenwood County.
REVERSED.
SYLLABUS. BY THE COURT.
Allen. J
A petition filed under chapter 39, of the laws
of 177. to obtain a sale of lands for delin
quent taxes, whijh does not mention all the
lands sought to be sold, either in the title or
body of the petition, but refers to an exhibit
as attached thereto, and made a part thereof,
as containing a description of the lands, but
where no exhibit is In fact attached to the pe
tition, but a loose paper indorsed with the
title of the case is filed with the clerk, which
in fact contains a description of the land, and
a statement of the taxes, etc., claimed to be a
lien on it, is not sufficient as a basis of juris
diction for the court to render any judgment
for the sale of the lands not described in the
petition, and where a judgment Is rendered
under such a petition, and lands not men
tioned in any manner except in the exhibit
are sold thereunder, such sale is void, and
confers no title on the purchaser.
All the justices concurring.
A true copy.
Attest: C.J.BROWN,
seal Clerk Supreme Court.
677G.
City of Kansae City vs. Eugenia A. Brady et al.
Motion for a re-hearing.
ORDER FOR JUDGMENT SET ASIDE AND
NEW TRIAL DIRECTED.
SYLLASUS.
By the Court.
Allen. J
1. The former opinion In this case npon the
questions of law involved is adhered to. Hor
ton, C. J., dissejiting.
2. Where the answers of the jury to special
questions submitted to them are not only in
consistent with the general verdict. but with
each other as to material matters no judgmen i
can be entered, but a new trial should be
ordered.
Johnston, J. concurring.
A true copy.
Attest: C. J BROWN,
seal Clerk Supreme Court
rioa.
James Woodman vs. Richard Hunter.
k
Error from Republic County.
REVERSED.
SYLLABUS.
By the Court.
-Allen. J
1. Hearsay testimony alone is not sufficient
to uphold a judgment.
2. A mortgagee of personal property who
surrenders the note secured, and cancels the
mortgage in consideration of tie note of a
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WESTERN
FOUNDRY
and
ESTABLISHED 1875.
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Topefea Foundry 0 Machine Works, 1
ESTABLISHED 1S68. M
R. Ij. COFRAiSr, Proprietor.
manufacturer op steam engines, mill machinery,
shafting, pulleys, gearings, fittings, etc.
rirrnrrtniimnrimniiii
APJD
.813 KANSAS AVENUE.
IT yon wish to buy or rent a first class new .or second-hand Piaho or Oboah,
npon the most favorable terms, call upon us.
We have secured the services of a first class piano musheb asd bpahm
and are prepared to repclieh all kinds of musical instruments, furniture, etc
REPAIRING SOLICITED.
E, 15. INGSSSOLL"
Has removed his business to 107 East Sixth avenue, where he will do a General Undertakinj
aud Embalming business.
I HAVE FIRST CLASS LADY AND GENTLEMEN EMBALMERS.
I have the Finest and Largest Chapsl and Best Morgue in the city, and belong to no coinoluo ot
anti-combine. Olllce is open day and night.
Rev. R. D. Iiigersoll, Embalmer. 107 East lAl. -
third party, secured by a new mortgaee In
cluding new and different security, without
the knowledge or consent of the original mort
gagor, is bound by his own bargain, and can
not thereafter resort to the first mortgage as
security for the debt.
All the justices concurring.
A true copy.
Attest: C. J. BROWN,
seal Clerk Supreme Court.
7111.
Thomas W. Gaunt vs. K. W. Harkness.
Error from Linn County.
keversed!
SYLLABUS.
Bt the Court.
Allen. J
1. On the trial of an action on a promissory
note, where the principle issue is as to the
genuiueness of the defendant's signature
thereto, it is error to permit the defendant to
present to plaintiff's witnesses, who are called
to testify as experts, false signatures to notes
prepared for the purpose of testing the ability
of the w itnes-es to detect a f jrgery, and to
cross examine such witnesses as to such fal.se
signatures, and thereafter to introduce such
signatures in evidence, and prove by another
witness the fact that be wrote them himself.
2. i'ne rule that writings to be used as a
basis for the comparison r.f hand writings
must be admitted to be genuine by the party
against whom they are sought to be used, or
at least clearly proven to be so, applies as well
to writings Used on the cross examination of
witnesses as on the direct. '
All the justices concurring.
A true copy.
Attest: C.J.BROWN.
seal Clerk Supreme Court.
9510.
State of Kansas vs. W. H. Whitmore.
Appeal from Osborne County.
REVERSED.
Syllabus.
By the court.
Allen, J
On the trial of a criminal prosecution for
llb-1 the jury after having received the direct-on
of the court, have the right to determine
at their discretion, the law and the fact, par.
jli.t. g-jn. stat. ISfetf. and counsel has the right
10 fairl, ar-ue his theory oS the law of the
ase to tin- jury. State vs. Verrv. 36 Kas. 41(,
tml iii the cou'se of his argument may read
1 n i law books recognized as authorities
bearing up n the case, und it is error for the
court to deny this right.
All the justices concurring.
A true copy.
Attest : C. J. BROWN,
seal Clerk Supreme Court.
7098.
The Chicago Lumber Company vs. Ella Lime
rick. Error from Waubaunsee County.
AFFIRMED.
Syllabus.
By the Court.
Allen. J
In an action to foreclose a lien claimed for
materials furnished to a contractor, under a
sub contract, where the plaintiff's account,
duly verified, is set up in the petition, and the
answer of the owner of the property contains
a general denial, and also denies specially any
indebtedness from the contractor on account
of the materials furnished, and the plaintiff
offer evidence in chief to prove that the ac
count has not been paid, and the defendant
without objection offers proof that it has been
paid, and after such proof objection because
payment is not pleaded is first made when a
check, by which the payment is claimed to
have been made, is offered in evidence, and
where the whole case is tried through from
first to last as though the principle issue was
the question of payment, and the court finds
adversely to the plain tiff, such finding will not
be disturbed because the pleadings strictly
construed do not present an issue of pay
ment. All the justices concurring.
A true copy.
Attest: C.J.BROWN,
seal Clerk Supreme Court.
7058.
The Southern Kansas Railway Company vs.
W. W. Painter.
Error from Sumner County.
REVERSED.
Stllabus. Bt the Court. Allen, J
1. Where the plaintiff In action to re- I
statements on the. witness stand concerning
matters vital to the case, substantially differ
ent from those contained in a deposition
which he admits having signed, but denies
the entire correctness of, it is error for the
court to refuse to permit the defendant to
read in evidence those parts of the deposition
tending to contradict his testimony, and it is
wholly unimportant whether such deposition
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E WORKS,
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has ben filed with the clerk, or is admissible
us a deposition.
2. Declarations of a conductor of another
train, made at the time of a similar accident
at the same place, and proof of the facta con
nected with such other accident, are held to
have been improperly admitted in this caso.
All the justices concurring.
A true copy.
Attest: C. J. BROWN,
seal Clerk Supreme Court.
6779.
Helen A. Berry vs. The Kansas City. Fort Scott
& Memphis Railroad Company.
Error from Bourbon County.
Motion for a Re-hearing.
DENIED.
Syllabus.
Per Curiam.
Where one or more corporations are consoli
dated into a new corporation with a new
name, and the old corporations go entirely
out of existence, If no arrangements are made
respecting the property and liabilities of the
corporations that cease to exist concerning
the debts and obligations of such corpora
tions, the consolidated or new corporation will
be answerable for the liabilities of its constit
uent companies. In such a case, the new cor
poration succeeds to all the property of the
old corporations, and the debts of the old cor
porations become by implication th obliga
tions of the new corporation.
All the justices concurring.
A true copy.
Attest: C.J.BROWN,
seal Clerk Supreme Court.
In the Supreme Court )
of the State of Kansas. J
I, C. J. Brown, clerk of the supreme court of
the state of Kansas, do hereby certify that the
foregoing are true and correct copies of the
iyllabi of the decisions In the above entitled
cases as the same appear on file in my ollice.
Witness in v. tiand and the seal of the supreme
court, this 9th day of May, JM.
SEAL O. J. BROWN,
Clerk Supreme Court.
St. Denis Hotel,
BROADWAY AND ELEVENTH ST.,
(Opposite Grace Church.)
NEW YORK.
EOOHS $1.0!) PER DAY AND DPWAS0.
The most centrally located hotel in tho city,
conducted on the European plan, at m'i'inra e
prices. Recently enlarged by a new ami hand
some additio that doubles its former capacity.
The new IMntnx Koom is ono of tholinost
specimens of Colonial Decoration in this coua-
Uy" WM. TAYLOR.
An honest
Confession.
If we were asked the reason
why "Viavi" performs such
wonderful cures, we would bo
honest, and sa3rr "We don't
know.'-' Ask a scientist why
an apple invariably falls down
ward, and he would 6ay it was
due to the law of
Gravitation.
That is about all he could tell
you. It is no more natural
for bodies fb gravitate toward
the center of the earth thn it
is for "Viavi" to cure the dis
eases peculiar to women. It ia
not a drug, but a .food, which
nourishes and strengthens the
affected parts, thereby enabling
nature to throw off the disease.
Our Health Book 6ent free.
KANSAS VIAYI CO., Topeka, Kas.
MACK N
ORGANS
BROS.
J-