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THE! .AJDVO O-&.T 33.
13 7104. Laura L. Ferree vs. C. E. Walker, et aL Error from Wyandotte County. DISMISSED. 8TLLABUSL BT THI COURT. JOHNSTON J. L When the time for makingand serving a cue-made has elapsed, the judge Is without power to extend the time for that purpose or to settle and sign a cage 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 certified to be correct bv the clerk of the district court and which is not a record of the court Is not competent proof of me auegea iacts tnerein contained. All the justices concurring. A true copy. Attest: C. J. BROWN. sial) Clerk Supreme Court 7133. Julius Winkelmeyer Brewing Association vs ai. jl. worn ana jonn worn. Error from Barton County. AFFIRMED. Syllabus. Bt thx Coubt. Johnston, Error cannot be predicated upon the over- ruling oi a motion for a new trial where the record falls to show that such mot I'm was filed within three days after the judgment was renaerea. All the justices concurring. A true copy. Attest: C. J. BROWN, sial Clerk Supreme Court 9582. Charles W. Dutton. County Clerk of Cloud County vs. The Citizens' National Bank of Concordia. Error from Cloud County. REVERSED. Syllabus. Bt thx Coubt. Allxn, . L The word credit as defined in paragraph 687, oi tne gen. siau or loew. ana usea mum chapter orovidins 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 oi 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 ror taxation, wnen tne 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 conflict with section 5219 of the general statutes of the United States, does not operate to tax such shares at a greater rate tnan otner moneyed capital In the hands of Individual citizens and is valid ; the law providing that all cor porate stocks, all moneys secured by judg ment, or lien on real estate, an moneys on oe- Sosltlnany bank, subject to withdrawal on emand. and substantially all moneyed capi tal of everv descrintion Invested for profit shall be subject to taxation without deduction of indebtedness. & Injunction can not be maintained to prevent the collection of a tax which the laintlff justly ought to pay, for mereirregu arltiesln the proceeding of the assessor, or other taxing oflicer. All the justices concurring. A true copy. Attest: C J. BROWN, sial Clerk Supreme Court 7116. Mary Buchtella vs. Frank Stepaneka. Error from Republic County. MODIFIED. Stllabus. Bt thx Coubt. Allxn, J L A fraudulent transaction in which both nirtlAR hv knnwlntrlv participated will neither support a cause of action In favor of the plaintiff, nor a counter claim or judgment for affirmative relief in favor of the defendant 2. Where parties purposely engage with equal guilt in illegal, immoral or fraudulent dealings, tne court leaves mem wnere it nam them, and will not lend its aid to either party. All the justices concurring. A true copy. Attest: C. J. BROWN, sial Clerk Supreme Court 7130. Daniel Hennigh and Mary Hennigh va. Com mercial National Bank. Error from Labette County. Stllabus. AFFIRMED. Bt thx Coubt. Allxn, J In this case petition In error was filed In the district conrt to reverse a judgment of a Ststlee of the peace for error in excluding tes mony, 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 peace thereon Is Incorporated in the bill of 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, sxal Clerk Supreme Court 94SS. State of Kansas, ex. reL J.D. Naylor, County Atorney, vs. The Dodge City. Montezuma uu irisiaaa iuuiway company, et at Error from Gray County. REVERSED. stllabus. Bt thi Coubt. allxn. J The road bed and superstructure of a rail road bllllt nndar a chartnr nhtinn1 . vuruauce wita tae imws oi tne state, is onarged, not onlv in the hands of the original corpo- latiuu, uut ui purcntsers ma wen, witn tne bur- uou ux lae company-s cnarter ODUgatlons and Cannot tut dlvartiut fmm tVia nnrrvnan vi..v. It was devoted, nor relieved from this burden without the consent of the state duly ex pressed by the legislature, or other competent ufcuuriigr. All the justices concurring. A true copy. Attest: C. J. BROWN, sxal Cierk Supreme Court 7127. Morgan County in the State of Missouri vs jonn v. Mcitae. Error from. linn County. AFFIRMED. Stllabus. Bt thx Coubt. Allxn, 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 change In the plans of the work made by the principal, and accepted by the obligee of the bond, without their knowledge or consent. All the justices concurring. A true copy. Attest: C. J. BROWN, sxal Clerk Supreme Court 9528. The State of Kansas vs, Fred Miller. Appeal from Douglas County. AFFIRMED. Stllabus. Bt thx Coubt. Allxn. J L To constitute the crime of robbery by forcibly taking money from the person of its owner. It is not necessary that violence to the person of the owner should precede the tak ing of the money, It Is sufficient if It be con temporaneous with the taking. 2. Where the court chanted In substance that the violence to the person of the owner of t Vt a mnitAt Tni.t tiSBWaf. Kaon -nrl Vt IntAvtft ts a 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. Held, That under tne iacu oi mis case, tne word -oDtained" iairiy expressed the same Idea as the word taken, and that no error was committed by tne use oi tne word. All the justices concurring. A true copy. Attest: C. J. BROWN, sxal Clerk Supreme Court 7108. James Woodman vs. Richard Hunter. Error from Republic County. REVERSED. Stllabus. BtthxCouxt. -Allxn. J L Hearsay testimony alone Is not sufficient av uyuuiu m juuguieuk. 2. A mortgagee of personal property who surrenders the note secured, and cancels the mortgage in consideration of the no te of a uuu iBitjr,BQcurou vj ft now mortgage in cluding new and different security, without the knowledge or conseut of the original mort gagor, is bound by hla own bargain, and can- uu uiginuw rosurt w tan ant morigftge as security for the dobt All the justices concurring. A true copy. Attest: C. J. BROWN, sial Clerk Supreme Court 6776. City of Kansae City vs. Eugenia A. Brady staL Motion for a re-hearing. ORDER FOR JUDGMENT 8ET ASIDE AND NEW TRIAL DIRECTED. Stllabus. Bt thx Coubt. Allxn, J 1. The former opinion in this case noon the questions of law involved is adhered to. Nor ton, V. J., dissenting. 2. Where the answers of the lurv to special questions submitted to them are not only in consistent with the general verdict, but with each other as to material matters no judgment can be entered, but a new trial should be ordered. Johnston, J. concurring. A true copy. Attest: C. J BROWN, sial Clerk Supreme Court 707i Noyes Splcer vs. Martin L. Wheeler. Error from Greenwood County. REVERSED. Stllabus. Bt thi Coubt. Allxn, J A petition filAd under chapter 89. of the laws of 1877. to obtain a&la of lands for delin quent taxes, whl3h 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 wnere no exhibit is in iact attacnea to tne pe tition, but a loose paper Indorsed with the title of the cn la filed with the clerk, which In iact contains a description of the land, and a statement of tha tuaa. etc- claimed to be a lien on it, la not sufficient as a basis of juris diction lor the court to render any lud-nnent 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. aii tne justices concurring. A true copy. Attest: C J. BROWN, sxal Clerk Supreme Court 7111. Thomas W. Gaunt vs. K. W. Harkness. Error from Linn County. REVERSED. Stllabus. Bt thi Couxt. Allxn, J L On the trial of an action on a promissory note, where the principle issue is as to the genuineness of the defendant's signature thereto, it Is error to permit the defendant to present to plaintiffs witnesses, who are called to testify as experts, false signatures to notes prepared for the purpose of testing the ability of the witnesses to detect forgery, and to cross examine such witnesses as to such false signatures, and thereafter to Introduce such signatures In evidence, and prove by another itness the fact that he wrote them himself. 2. The rule that writings to be used as a basis for the comparison of hand writings must be admitted to be genuine by the party funst wnom wej are aougnt to oe usea, or 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. sial Clerk Supreme Court 9510. State of Kansas vs. W. H. Whitmore. Appeal from Osborne County. REVERSED. Stllabus. Bt thi Coubt. Allxn, J On the trial of a criminal prosecution for libel the jury after having received the direc tion or tne court, have tne right to determine at their discretion, the law and the fact. par. 2449, gen. stat 18H0, and counsel has the right to fairly argue his theory of the law of the case to the jury. State vs. Verrv, 8tt Kas. 416, and in tne course oi his argument may read from law books recognized as authorities bearing upon the case, and it Is error for the court to deny this right All the Justices concurring. A true copy. Attest: C. J. BROWN, sxal Clerk Supreme Court 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 plaintiff, 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, sxal Clerk Supreme Court 7068. The Southern Kansas Railway Company vs. w. w , rainier. Error from Sumner County. REVERSED. Stllabus. Bt thi Coubt. Allxn, J 1. Whura thn nlaintlff In ftnvar Himtirnii far narannal inlnrfaa n.v.. statements on the witness stand concerning matters vital to tha ran nhata.ntfa.lt ai eut from those contained In a deposition wnicn ne admits naving signed, but denies tha anttn iVtrrnMnaa tt ilia arm. n-- eourt to refuse to permit the defendant to read in evidence those parts of the deposition tending to contradict his testimony, and it la wholly nnlmnortant whathar annh Aannaiunn has Men filed with the clerk, or Is admissible as a aeposition. 1. DattlaxAtinna nf a. MnArtntnr tt mnllii. train, made at the time of a similar accident at the same place, and proof of the facts con nected with such other accident are held to nave Deen improperly admitted in this case. aii ug justice concurring. A true copy. Attest: C. J. BROWN, sial Clerk Supreme Court 6T7SL Helen A. Berry vs. The Kansas City, Fort Scott s wempma itauroad company. Error from Bourbon County. Motion for a Re:hearing. DENIED. Syllabus. I'KR CUBIAM. 7098. The Chicago Lumber Company vs. Ella Lime rick. Error from Waubaunsee County. AFFIRMED. Stllabus. Bt thx Coubt. Allin.J In an action to foreclose a lien claimed for materials furnished to a contractor, under a sub-contract, where the plaintiffs 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 offers evidence In chief to prove thai 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 Wharfl nna OP MAM Mrnnntlnni a ntfi.nll. (1 infcn a n Anmni-aHnn urlah . ... name, and the old corporations go entirely out of existence, If no arrangements are made respecting tne property and liabilities of the corporations that cease to exist concerning the debts and obligations of such corpora- uuua, win vunauuuaieaornew corporation will be answerable for the liabilities of its constit uent companies. In such a case, the new cor poratlon succeeds to all the property of the uiu vui(iutiiuuu, aim me uhoib oi tne oia cor porations become by Implication the obliga tions of the new corporation. All the justices concurring. A true copy. Attest: c. J. BROWN, sxal Clerk Supreme Court In thx SuPBKjfx Coubt ) . . o? thi Stati or Kansas. the state of Kansas, do hereby certify that the syllabi of the decisions in the above entitled cases as the same appear on file In my office. n iuuBs ui uuu tuu tne seai oi tne supreme court, this 9th day of May, 1894. l"AL C. J. 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