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THE ADVOCATE AND NEWS.
14 NOVEMSEU Published November Z4, ato Court Syllabi. Kansas Court of Appeals, Northern De partment, Eastern Division. No. M. . . Filed November 5, 1897. W. B. Oleason. t al., plaintiffs In error, VH. William H. KeHog, et al., defendants In ' error. Ertor from" the District Court of Jackson county. Per Curiam. This action was submitted to this court and an opinion filed January 8th, 1897, af firming the Judgment of the court below, tor the reason ''that the record does not affirmatively show that it contains a full and complete statement of all the proceed ings that have a bearing upon the correct ness of the rulings complained of." A re Hearing was ordered and the case sub mitted In June, 1897. We have examined the record and arc satisfied that the former judgment of this court is correct Tho judgment of the court below will be affirmed. Alf tho Judges concurring. A true copy. Attest: W. II. THOMPSON. Seal.) Clerk. f 11 purtment, Eastern Division. Kansas Court of Appeals, Northern De No. 2W. Barber Asphalt Paving Company, plain tiff In error, vs. City of Topeka, defendant in error. Error from Shawnee County District Court. REVERSED. Syllabus. By tho Court. Mahan, I J. In an action on a paving contract, In writing, against a city to recover a balance alleged to be duo thereon, an answer that alleges that "the balance so sued for is for paving an eight-foot strip on Qulncy street extending through two blocks on said street, which two blocks constituted two separate special taxing districts In tho city of Topeka, and said paving being a Special improvement, for which under the law the said taxing districts were alone liable; that tho cost of such Improve ment Is therefore chargeable against the real property In said taxing districts, and not In any manner chargeable against the city at large," does not state a defense and it was error for the court to overrule a demurrer thereto. A'true copy. Attest: W. II. THOMPSON. Clerk. Kansas Court of Appeals, Northern De partment, Eastern Division. ' No. 247. Filed November 5, 1897. V. J. Lane, plaintiff In error, vs. The State of Kansas, defendant In error. Krrof from the Court of Common Plena, ' Wyandotte County. REVERSED. Syllabus. By the Court. McElroy, J. 1.. "Tho conditions of this recognizance Is such that if the above bonden, Isaac II. LaVeen, shall personally be and appear before the District court In and for said county of Wyandotte, on the first day of the next term thereof, it being the second day of June, 1890, then and there to answer the charge of having at the county of Wyandotte and State of Kansas, on or ttbout the 13th day of April, A. D, 1890, committed the crime of ..and abide the order of such court, and do not depart without leave, then this recognizance shall be void, otherwise it shall he and remain in full force and effect in law:" Held, that a criminal recognizance "conditioned as above is not a continuing bond and that the surety Is entitled to be discharged at the end of the term designated therein. A. true copy. Attest: I8eal.l W. II. THOMPSON. Clerk. Kansas Court of Appeals, Northern De j partment, Eastern Division. No. 200. .Filed November 11, 1897. Oliver-N. Sehee, plaintiff In error, vs. E. II. Shore, by J. M. Shore, his next friend, defendant In error. Error from Court of Common Tleas. Wy andotte County. Syllabus. AFFIRMED. i By the Court. Wells, J. 1. Where an action upon a contract for the sale and warranty of a horse was brought against two persons jointly, and the verdict upon the evidence was against only one, there Is not such a- variance be tween the pleading and the verdict as to require the setting aside of the verdict. 2. Where a person sells another a horse and assures the purchaser that It Is ns sound as a dollar, and the purchaser re lies upon such representation ana makes (he purchase, and it develops that at' the time of the Bale the horse was diseased with the glanders and arterwards had to bo killed, the seller is responsible to the buyer for the damage the buyer actually and necessarily sustained by reason of said horse having been so diseased. 3 The objection made to the evidence received and rejected and the Instructions to the Jury given and refused, were ex amined and found to contain no reversible error. A true copy. Attest: I Seal. J W. H.. THOMPSON. Clerk. Kansas Court of Appeals, Northern De parfment, Eastern Division. No. 529. Filed November 5, 1M7. The 8tate of Kansus, appellee, vs. Martin E. liwe, appellant. Appeal from Wabaunsee County. AFFIRMED. Syllabus. My tho Court. McElroy, J. 1. It Is not error for the trial court lo overrule a motion to quash an indictment for irregularity In selecting tho grand Jury where such irregularity, In tho opin ion of the court, d-ea not amount to cor ruption. 2. It is within tho discretion of the trial court to permit tho names of additional witnesses to be Indorsed on an Indictment at the commencement of the trial, and a Judgment should not be revet n.'l on ac count of such pernilcjlon, unless it appears that such indorsement was an abus. of such discretion. 3. Evidence lending to prova the Accused guilty of an offeuso not charged in the indictment, is not, on that account, Incom petent, If It tends to prove any tact con stituting an element in the offenso that Is charged In the Indictment. If Intent Is material, any fact is lncompcto.it against the accused which tends to show too mo tive of the criminal act charged. In ruclt case tho evidence is not Incompetent be cause It may tend to show the accused guilty of another offense thin me one charged. A true copy. Attest: I Seal. J W. H. THOMPSON. Clerk. Kansas Court of Appeals, Northern De partment, Eastern Division. No. 530. Filed November 5, 1897. The Statu of Kansas, appellee, vs. Samuel A. Johnson, appellant. Error from Wabaunsee County District Court. Syllabus. REVERSED. ' Uy the Court. Wells, J. 1. A motion to quash an Indictment for Irregularities In the selection and proceed ings of the grand Jury that returned it, can only be sustained under Par. 6141, G. 8. 1889, when such irregularities, in the opinion of the court, amounts to corruption, and where the evidence upon that question is conflicting, tho Judgment of the court be low will not be disturbed. 2. The unexplained istssesslon of the fruits of crime, recently after its com mission, Is prima faclo evidence, of guilty possession, and applies equally to a person charged with receiving and to ono charged with taking it, and such possession need not be exclusive, but a joint possession may, In connection with other circum stances, justify a conviction. 3. Besides the formal matter of venue, etc., to lawfully convict the defendant In this case, It was necessary for the Jury to have found from the evidence, beyond a reasonable doubt, the following facts, only: First, that the body of Amelia Van Fleet was unlawfully removed from its grave for the purpose of dissection, and Second, that the defendant received said body, knowing that it had been so unlaw fully removed for such purpose, or know ingly aided, counseled, abetted, or assisted Borne other person or persons in so doing. 4. It was not error for the court to re fuse to give tho Jury an Instruction, In sub stance, that the proof of the good char acter of the defendant completely removed the presumption of guilt arising from tho possession of tho stolen body, but it was the duty of the Jury to consider tho evi dence upon each of these subjects and give it such weight as they thought it entitled to under all the circumstances of the case. B. It Is reversible error for a court to assume a material controverted question, as a fact proven, and Instruct tho Jury as to their duty under such assumption. A true copy. Attest: ISenl. II. THOMPSON. Clerk. Kansas Court of Appeals, Southern De partment. EHStern Division. No. 159. George W. Murkley, plaintiff In error, vs. Mary IT. Klrby, administratrix, defendant in error. Error from Osage District Court. REVERSED. Syllabus. Ry the Court. Dennison, P. J. The Courts of Appeals derive their Juris diction from chapter 9(5 of the Session Laws of 1895, and when the record of case within their jurisdiction which was originally brought in the Supreme court, Is received by the Court of Appeals, It Immediately has as full and complete jurisdiction of such case as though it had been originally commenced in such Court of Appeals. 2. A case which remains undecided In a court is pending therein. 3. Upon the passage of"the act creating the Kansas Court of Appeals, tne Supreme court was divested of an jurisdiction of the cases "pending therein, which they were directed to transfer to the courts of Appeals, except such reviewing supervise Ion as Is provided for in satd act, and could make no valid order In such cases exeept tho order transferring them as di rected. 4. Where the record shows that a party objects at the time and saves an exception to tho Instructions given by the court us a whole, and to each and every Instruction separately, and to each and every part thereof, such exceptions are sufficient to obtain a review of any part of such Instruc tions. G. In an action for malicious prosecution, the question of probable cause is one of law for the court to determine. If the un disputed facts show that there either was, or was not probable cause, the court should so find, and should Instruct the jury that there was or was not probable cause shown. Jf, however, there Is a substantial dispute about the facts which constitute the prob able causo or the want thereof, it is for the Jury to determine what facts are proved, and for the court to say whether they amount to probable cause. All the Judges concurring. A true copy. Attest: W. O. CHAMPE. t Seal. J Clerk. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 170. E. McGrath, plaintiff In error, vs. Frank Cronso, administrator, defendant In error. Error from Franklin District Court. AFFIRMED. Syllabus. liy the Court. Dennison, P. J. 1. Where a written contract contains a stipulation that "all disputes or questions that may arise In regard to prices of stock, shall be settled by a reliable and compe tent person agreed upon by the parties to this contract:" Held, that such a stipu lation is not a condition precedent to the maintenance of a suit and Is a matter of defense. 2. Where a written contract provides that the goods shall bo listed at "cost In mar ket" with 5 per cent, added, parol testimony Is admissible to show the meaning given to the terms, by the parties to the contract. 3. Whore a written contract falls to pro vide a means by which the price of fixtures and tools are to be determined, proof of an oral contract as to their price Is admissible. 4. Whore the trial court erroneously per mits the Introduction of testimony which contradicts or varies the terms of a writ ten contract as to the price of certain goods, and where the jury in their answers to special questions state that they allow the plaintiff nothing on account of such goods: Held, that the substantial rights of the defendant are not prejudiced thereby, and the error is immaterial. 5. The instructions refused and given and the special questions refused and given, examined, and no error found In the rirl Intfs of tho trial court theron. All the Judges concurring. A true copy. Attest: W. O, CHAMPE. I Sea 1.1 Clerk. Kansas Court of Appeals, Southern De partment, Eastern Division. No. i:!6. The Kansas Texas Coal Company, plain tiff in error, vs. J. J. Judd and Mary Judd, defendants in error. Error from Cherokee District Court. AFFIRMED. Syllabus. Ry the Court. Dennison, P. J. t. Where the owner of a farm has es tablished her homestead thereon, she may leave the same for a temporary purpose, with the. intention of returning, and if during all the time of such absence she retains that intention and refrains from establishing a homestead elsewhere,, she has not abandoned the farm as her home stead. All tho Judges concurring. A true copy. Attest: W. O. CHAMPE. rSeal.l Clerk. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 186. Atchison. Topeka & Santa Fe Railroad Company, plaintiff in error, vs. E. L. Owens, defendant In error. Error from Montgomery' District Court. REVERSED. I Svllabus. Ry the Court. Schoonover, J. I . ', 1. The case of Railway Company vs. Ly ; can, 57 Kas. 635, followed as to proof of YHiuo 01 lieu no leui'a mm mover ileitis de stroyed by tire resulting from negligence of a railroad company. 2. The proof and findings of the Jury as a basis for their general verdict should cor respond with the averments In the plead ings. 3. "The allegations of negligence in one particular does not warrant a recovery on proof of negligence in another and differ ent matter.'1 (54 Kas. 482.) All the Judges concurring. A true copy. Attest: W. O. CHAMPE. Seal.1 Clerk. Kansas Court of Appeals, Southern D partment, Eastern Division. No. 103. The Phelps Blgelow Windmill Company, a corporation doing business under and by virtue of the laws of the State of Michi gan, plaintiff in error, vs. C. G. Demmlng, O. S. Mclntlre and Mar garet Mclntlre, defendants in error. Error from Linn District Court DISMISSED. Syllabus. By the Court. Dennison, P. . 1. The first and- second paragraphs o the syllabus In Farree vs. Walker, 54 a: 49, are adopted as the syllabus In this case. All the Judges concurring. A true copy. Attest: W. O. CHAMPE, Seal. J clerk. The Kansas Court of Appeals. Southern De partment, Eastern Division. No. 135. The St. I,ouls & San Francisco Railway Company, plaintiff In error, vs. Mary E. Beadle, defendant in error. Error from Crawford District Court. AFFIRMED. Syllabus. By the Court. Schoonover, J. 1. The Instructions of tho trial court which are not set forth In the opinion are approved and adopted, and held to contain the propositions of law applicable to the facts In this case. 2. The record examined: Held, that no error prejudicial to tho defendant below was committed In tho admission or re jection of testimony. 3. The special Instructions submitted by the defendant below considered: Held, that so far as they are applicable to the Issue and evidence In this case, they are cov ered by the Instructions given. All the Judges concurring. A true copy. Attest: W. O. CHAMPE, ISeal. Clerk. Kansas Court of Appeals, Southorn De partment, Eastern Division. No. 193. The Missouri Pacific Railway Company, plaintiff In error, vs. W. H. Clark, defendant In error. Error from Allen District Court. AFFIRMED. Syllabus. By the Court. Schoonover, J. Where the question of negligence la sub mitted to a jury, under proper Instructions as to the law, and the findings and verdict are sustained by competent evidence, and Is approved by the trial court, the verdict will not be disturbed by this court. (Mis souri Pacific Railway Company v. Clark, 49 Pac. 799.) All the Judges concurring. A true copy. Attest: W. O. CHAMPE. Seal. Clerk. Kansas Court of Appeals, Southern De partment, Eastern Division. No. 222. J. N. Winkler, plaintiff In error, vs. The Board of County Commissioners of Miami County, Kansas, defendant in error. Error from Miami District Court. DISMISSED. Syllabus. By the Court. Schoonover, J. "The pleadings and agreed statement of facts show that the amount In controversy, and for which judgment could have been legally rendered, exclusive of costs, In the court below does not exceed $100: Held, that this court has no jurisdiction to hear and determine the case, and that the case must be dismissed from this court, al though no question of jurisdiction was raised by either party." (Thrall vs. Falr- Drotner, l Ks. crt. App. 482.) AH the Judges concurring. A true copy. Attest: W. O. CHAMPE, Seal. Clerk. The Kansas Court of Appeals, Southern De partment, Eastern Division. - No. 15fi. James A. Hutchlngs, plaintiff in error, vs. Geo. A. Eddy and H. C. Cross, as Receiv ers of the Missouri, Kansas & Texas Rail way Company, defendants in error. Error from Neosho District Court. DISMISSED. Syllabus. By the Court. Schoonover, J. Where a case Is commenced against the receivers of a railroad company and after wards the receivers die, and a receiver do bonis non Is appointed as their succesor, and no attempt is made to substitute or revive the action In the name of the re ceiver de bonis non, for more than one year after his appointment:" Held, that a motion to abate the action for the reason that it has not been revived, will b sus tained. All the Judges concurring. A true copy. Attest: W. O. CHAMPE. Seal. . Clerk.