The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-09-07

It May be Persuaded Into asOInE on
With the Case and Thus IncurrinE
Thousands 1IOre or Expense.
At the next meeting Of the city coun-
Gil next Monday evening, formal action
will be taken on the question Of the ap-
peal Of the Decker. Mullins & Berry
sewer case.
Nearly every taxpayer in Topeka
would feel relieved if the matter could
be settled and the judgment satisfied.
Even City Attorney Tillotson comedies
the fact that a judgment against the city
will finally be secured, and he only hopes
to be- able to reduce the amount OF the
judgment if another trial iB had
An appeal to the supreme court will
be costly experiment for the city If the
verdict Of the district court Of Douglas
county is not reversed. The verdict was
for 73,513.91. This sum bears the legal
rate OF interest, 6 per cent from the date
1t was given The supreme court ls
nearly four years behind in its work, and
if the case is not advanced, il would be
at least four years until it is reached.
The interest on the judgment would then
amount to $17.643.34, which is a sum
which should interest those who pay the
expenses of the city's law suits.
Then there is another item worth con-
sidering, the cost of appealing the case.
City Attorney Tillotson thinks the cost
of preparing the case made viii not ex-
coed 5000, but other lawyers who know
something of the evidence say that it
will cost four times that sum. This does
not include the other fees incident to
hearing of the case in the supreme court
If the case Is reversed and sent back
for trial there Will be another expensive
trial in the district court, which will
bring the costs up 20 nearly or more than
$4,000. The costs were assessed against
49, . frsr. Il q
is taken against the city the costs will
probably be charged TO the city.
So it seems that even if the city Sc
cured q new trial and a material reduc-
ton in the verdict, the other expenses
would nearly if not entirely bring the
amount beyond the present judgment.
Do the taxpayers want any more legal
quibbling at their expenseg
In 1887 the contract for building the
sewers in districts II and ~ were
awarded to Decker, Mullins 4 Berry.
The sewers were completed in about
two years and a controversy arose about
the balance due the company The con-
tractor claimed pay for extra work which
was not included in the contract but
which was ordered by the city engineer,
and the council refused to allow the
claim.
The plaintiffs claim that the contract
required an average depth Of seventeen
feet, while they were required by the
city engineer, George +. Neatly, to put
il down twenty-One feet It is claimed
that the council refused to take action
on the matter aud thus ratified the order
Of the city engineer. Then to make the
matter more confusing, all the records OF
the council for the time have mysterious
ly disappeared.
The suit was brought in January, 1890.
in the Shawnee county district court,
but was not reached until Judge Hazen
came on the bench, but he refused to
try 1t because his partner, s 3. Isenharts
had been city attorney. It was then
taken to the district court Of Douglass
county and was tried before Judge Ben
son at Lawrence, in 1898.
Tie jury had no general verdict sub
mitted, but was required to answer sev-
eral special questions Of fact upon which
the court would have rendered a judg-
ment The jury reported that they
were unable to agree upon answers to
ever. that the city was liable for 10000,
besides interest, which would make the
total amount over $10O,0OO0. As they
failed to agree upon answers to all the
questions new trial was ordered.
The next trial took place in February
and March of this year This time the
jury agreed upon a verdict Of $4,000
against the city, but again special ques-
tious of fact were left unanswered Ac-
cording to Mayor Theodore POehler,
who was on the jury, eight members
were in favor of a verdict Of from $4,000
to 100000. But three mem bers Of the
jury were in favor of = small verdict
The last trial was had in June and July
reached and a verdict against the city of
last and for the first time an agreementwas
$73,5139t, which includes interest, was
given. Only $4,79I61 Of this amount
was found in favor Of the contractors.
The court held that the claims Of the
material men amounting to $1S,5S207
mnst be first paid from the judgment.
This was to be taken from the amount
awarded the contractors as far as the sum
awarded them would 60, and the bal
ance from the amount awarded the bank
which furnished the contractors the
money to carry on the work
II ia evident that the citv received the
benefit of the work and that the only
question ia a technical one az to whether
the contracts authorized the extra work
The city can not hope to be released
entirely, and every day adds to the enor-
nous expense already incurred
THE CRIMINAL DOCKET.
Judge Hazen Makes the Criminal Assign