The advocate. [volume], May 09, 1894, Page 12, Image 12

About The advocate. [volume] (Topeka, Kan.) 1894-1897

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12
Published May 9, 1894.
Sup! Will
7117.
"c H.Mabry vs, Thos. Harp, Administrator o!
the Estate of Joel Stewart, Deceased.
Error from Cowley County.
REVERSED.
Syllabus. Bt the Coubt. Hobton. C. J
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,
a. 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. Such contract with the
subsequent assent of the landlord is valid. II
he refuses to assent, the sub-tenant cannot, as
against his objection, take possession of the
premises, or any of the growing crop under
All thejustices concurring.
Attest: ' C. J. BROWN,
seal Clerk Supreme Court
9503.
The State of Kansas on the Relation of John
T. Little, Attorney General vs. The Dodge
City.MontezumaA Trinidad Railway Com
pany, et aL
Original Proceeding In Mandamus.
PEREMPTORY WRIT DENIED.
Syllabus. By the Court. Hobton, C. J
Where a. railway company owning a short
line of railroad of twenty-alz miles only, is
whnllv insolvent, and such company has no
cars or engines 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 iaklng 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 comnel. bv a peremptory writ, the
railway company to replace or put into repair
its track, a part of which has been torn up, as
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
812a
The City of ElDorado vs. C. 0. Beardaley.
Appeal from Butler County.
AFFIRMED.
Syllabus. By the Couet. Hobtok, C. J
L An ordinance of a city prohibiting the
saleof lntoxicatlngliquors within the limits
of such city, except by persons having a per
sell, 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.
3, Where a police court of acity 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 has 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
so 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.
All the justices concurring.
A true copy.
Attest: C J. BROWN,
seal Clerk Suprome Court
7111
John P. Freese vs. Edward Scouten, et aL
Error from Kiowa County.
REVERSED.
Syllabus. By the Coubt. Hobton, C. J
L All 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 shall make full payment
therefor.
2. 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
mortgage subject to the supervisory power of
the coTrimlaaionnr of the irnnorsvl lanil nffi.A n
the United States.
8. If the applicant or entryman having all
the qualifications 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-
lll.lv inrf Innitllllnt lamnnant Bilfl. m I mA
person to have his Uwlul entry cancelled and
In pursuance thereof a collusive contest Is
commenced bv BUCh Other nerann acralnat tVia
entryman, ana by the collusion and fraud of
the parties, the United State land officers are
imposed npon and a cancellation of the entry
title and Interest of the entryman to such
other person; Meld, 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
Sartlea thereto, does not bind or conclude
im.
All the Justices concurring.
A true copy. .
Attest: C. J. BROWN,
seal Clerk Supreme Court
9506.
E.S. Ralston, Trustee, Ed. F. Barrell, Clerk,
and 11. J. uyies, .treasurer, at at. vo. iuo
Dodge City, Montezuma, & Trinidad Rail
way Company, B. F. Kellogg. Harry Benja
min, et al,
Error from Ford County.
AFFIRMED.
Syllabus. BytheCoubt. Hobton.CJ
!? nV nmmyyirart ffturnafilrk In thla a tut a
Is a body politic and corporate, and Its proper
name may sue and be sued.
a. A township may bring an action In its
own proper name, but the trustee or other
officers of the township are not the proper
piainucs in an kuuu uniiuju w uo ihju
by the township, or for the benefit of the
township, or in the interest of the people
of the township.
All tne justices concurring.
A true copy. n ,
Attest: M C. J. BROWN,
seal. Clerk Supreme Court
7034.
i t lfolltr and W. V, TTaIItt. Copartners aa
rne rrairie Liumoer vwyauj vs. ueujaiuau
v. martin.
Error from Finney County.
REVERSED.
Syllabus.
By the Coubt. Hobton, C. J
wIiam HittinM-a tn IaV a dennnltlon aneft.
ifloa th.t. the taVlnir will he Adjourned from
day to day," It is not error for the notary, be
fore whom the deposition Is taken, to adjourn
ine taxing OI vne UBpoainj u irum uay v ujr,
at th na.anio of the attorney for the TartV
giving the notice, where neither the opposing
tarty, nor ma attorney appear aujr uuo
.ofnra nnh nnttra nnhlin. and therein no P.nn-
tantlnn that tha .HlmirnTnanti were taken for
the purpose ox annoying tne opposing party,
or preventing croBa-exainiuauon, ur causiug
any unneceBHary expeiise ur ueiajr.
All the justices concurring.
A true copy.
Attest C. J.BROWN,
seal Clerk Supreme Court
6816.
The Orchard Place Land Company vs. Eugenia
A. Brady and the uny oi Kansas uuy.
Error from Wyandotte County.
AFFIRMED.
Syllabus. BytheCoubt. Hobton.CJ
Where a city, In grading one of its streets,
filled nn a natural water course, ana as a bud-
atltuta 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
. land romnanv extended the same sev
eral feet upon its private property, and the
land nnmnanf .rradad ud its lots and contin
ued the city sewer or culvert through its own
rtronertv bv loinlnir its sewer or culvert with
the city sewer, and subsequently the sewer or
culvert 01 tne lana company, on account vi ua
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, Held, That the land
company Is liable for the damages caused by
sucn ODSirucilon Oi vne sewer anu tne overuow
of the waters resulting thereirom.
All the justices concurring.
A true copy. , ,
Attest: C. J. BROWN,
seal Clerk Supreme Court
963L
George D. Hale vs. Oscar Bisohoff.
Proceedings In Quo Warranto.
JUDGMENT FOR PLAINTIFF.
Syllabus. Bt the Coubt. Hobton. C. J
L 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 appointee's term, the
commencement of the official term begins to
ran from the data of the appointment
i, The office of city assessor of the city of
Topeka, under the statute ana tne nrst ap
pointment made by the mayor and city coun
cil on February 6, 1882, commeuced to run
from that date. Each succeeding term of two
years followed each otherin regular order, the
one commencing where the other ended.
3. Where the term of a city official Is fixed
at two years and a person is appointed to the
office for one year only, the appointment Is
valid lor tne lull statutory perioa.
4. Where an appointment to an office Is
made during a vacancy for a full term, this Is
m legal effect an appointment to nu tne vac
ancv onlr.
5. An officer whose official term has expired
but who remains In possession of the office,
having full control thereof and exercising the
functions of the same, Is an officer de Jocto,
ana au oi ms acts, within the limits or nis
official power, are valid as respects the public J
ana tnira persons.
Ail tne justices concurring.
A true copy.
Attest: C. J. BROWN,
seal Clerk Supreme Court
9564.
The State of Kansas vs. John Sutton.
Appeal from Reno County,
REVERSED.
Syllabus. BytheCoubt. Hobton.CJ
Under section 3, chapter 121, sees, laws of
1871, (parg. 2213, gen. stat 188B) and section 92
of the act relating to crimes and punishments
parg. rats, gen. stat lasy) a person wno unlaw
ully and feloniously receives any goods 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 leiony 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,
beal Clerk Supreme Court
706L
Boston Loan and Trust Company vs. W. M
Organ, A. u. Wharton ana John . Kenyon.
Error from Lyon County.
AFFIRMED.
Syllabus. By the Coubt. Johnston, J
L Mere Irregularities In the method of ob
talnlng 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
verincation to a pleading do regaraea as a
ratal aerect, wnere tne parties proceeaeato
trial on the merits, without objection, as
though the pleading was verified and the
issues properly loineo.
2. Pleadlnirs examined, and held, to be suffi
cient to authorize the trial of the questions
submitted to the court and the evidence
found to be sufficient to sustain the decision
vaoatlng 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
ana mat tne iana wnen iairiy vaiuea was
wholly inadequate to discharge the indebted
ness. There was an understanding between
the garnishee and defendant that if at any
time the former could obtain more for the
property than the amount of the Indebtedness
the surplus should be paid to the defendant
Upon the trial It was shown that the debt of
tne garnishee was oona nae ana mat tne trans
fer of the real estate In satisfaction of the debt
was made In good faith, and the undisputed
testimony was mat no interest remainea in
the property beyond what was necessary to
satisfy the demand of the garnishee. Held,
mat as a sale oi me property unaer plain
tiffs attachment would yield nothing and
serve no beneficial purpose, the ruling of the
court discharging the garnishee and dissolv
ing tne 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. BytheCoubt. Johnston, J.
In the absence of an agreement or counter
vailing equity the proceeds of a mortgage
Sven to secure several notes maturing at dif
rent 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 tha
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
7097.
Joseph T. Patterson vs. Benjamin C. Galusha.
Error from Republic County.
REVERSED.
Syllabus. By the Coubt. 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 nay a mortgage
Indebtedness which existed against the land.
Afterward, G. brought an action to recover
from P. ten acres of the land or the value of
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. Toon tha testimony in
the record it is Held, That the parties stood
upon an equal looting; mat tne nature ana
amount of the debt assumed and the material
facts In the transaction were equally within
the knowledge ox both; ana mat mere was no
such deception and fraud on the part 9? V- M
will defeat the conveyance of the land or
justify a recovery in favor of G.
au tne justices concurring.
A true copy.
Attest: C. J. BROWN,
seal Clerk Supreme Court
7iia
Clara N. Sellers, et al vs. Henry Gay, et aL
Error from Wyandotte County.
AFFIRMED.
Syllabus. By the Coubt. Johnston, J
The facts in the present case are found to
fall within the decision of Sellers vs. Crossan,
recently aeciaea, ana following that case It is
held that the acts and conduct of the com
plaining parties estop them from disputing
the validity of tha mortgages foreclosed In
favor of the defendants in error. Sellers vs.
Grossan, 52 Kas., ; 35 Pac Rep. 205.
All the Justices concurring.
A true copy.
Attest: C.J.BROWN,
seal Clerk Supreme Court
9516.
The State of Kansas vs. Morgan A.Stlckney.
Error from Nemaha County.
AFFIRMED.
Syllabus. By the Coubt. Johnston, J
L Where a person breaks into a building
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., 498.
J. ii tne entrance to tne bunding 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 and arrest of the criminal is itself no
consent to the commission of the crime.
3. The appellant was arrested and his pre
liminary examination was held eight days
Deiore tne trial, two days neiore tne tnai
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
setting 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 deposition of the absent
witness, and the court denied the continu
ance. Held. That the denial of the motion was
not error.
4. Newly discovered evidence that dis
credits a witness or which is merely cumula
tive is not sufficient cause for a new triaL
All the justices concurring.
A true 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 Coubt. Johnston, J
1. While a city has power where it is
deemed necessary to divert a stream passing
through its limits from Its natural course ana
to confine it to a narrower channel, In doing
so it must use reasonable care to prevent in
jury to others, and If damage results to the
owners of private property from its negligence
or wrong-doing In this respect It will be Cable
for the loss.
2. Where two or more parties by their con
current wrong-doing cause Injury to a 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.
8. Special findings returned by the jury are
to be considered together and If possible are
to be so construed as to harmonize them and
to uphold the general verdict
4. 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. n ,
Attest: C J. BROWN,
beal Clerk Supreme Court
7111
The Gregory Grocery Company vs. Young A
Conboy.
Error from Johnson County.
AFFIRMED.
Syllabus. Bt the Coubt. Johnston, J
Failing debtors gave preference to several
of their creditors over others by executing
mortgages upon thsir 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 npon 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 testimony that the
ruling of the court was not erroneous.
All the judges concurring.
A true copy.
Attest: C J. BROWN,
seal Clerk Supreme Court