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The advocate. (Topeka, Kan.) 1894-1897, May 09, 1894, Image 13

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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. BROWN,
Clerk Supreme Court'
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