davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
Error from Cloud County.
REVERSED.
s. BY THE COURT.
SYLLABUS
ALLEN..J

L The word credit s defined in paragraph
6S47, the gen stat of 1889. and used In the
chapter providing for the assessment and col
lection of taxes, does not include shares of
stock in n national bank, and the owners of
such shares have right to deduct from their
assessed value the amount OF 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 corporation, In listing
their property for taxation, when the owners
of shares of stock in national bank are not
allowed to deduct their indebted ness 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 sueh
shares at a greater rate than other moneyed
capital in the hands of individual citizens
and is valid the law providing that all cor
porate stocks, all moneys secured by iudg-
ment, or lien on real estate. all moneys on de-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
An honest
Confession.

If we were asked the reason
why V1AvI" performs such
wonderful cures, we would be
honest, and say, ave don't
know Ask a scientist why
an apple invariably falls down
ward, and he would say it was
due to the law of
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
George d. Hale VS.. Oscar Bischoff.
Proceedings in Quo Warranto.
JUDGMENT FOR PLAINTIFF.

SYLLABUS BY THE COURT. HORTON. c.
1. Where statute authorizes the appoint
ment of official and declares the tenure of
the Office and is silent the point the
beginning of the first appOin tees term. the
commencement of the Official term begins to
from the date of the appoin tnent
2 The Office of city assessor of the city of
Topeka, under the statute and the first ap-
pointment made by the mayor anu city cOun-
Gil February 6, 1882, menced TO run
from that date Each succeeding term Of two
years followed ench other in regular order, the
one commencing where the other ended
B. Where the term of city official Is fixed
at two years and person Is appointed to the
office for one year only, the appointment Is
valid for the full statutory period
T. Where appointments to al Office is
made during Il vacancy 70 q full rm, this is
in legal effect appointment TO I'LL the
ancy only
s. An officer whose official term has expired
but who remains in possession of the rfice-
having full control thereof and exercising the
functions of the same il officer de tactO-
and all of his acts, within the limits OF his
official power are valid as respects the public
and third persons
All the justices cOncurrfng-
true copy
AttesL: G. J. BROWN,
IsEALl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
Error from Ford County.
AFFIRMED.
SYLLABUS.
The City of EIDorado VS.. c. o. Beardsley.
Appeal from Butler County.

The City of EIDorado vs. c. o. Beardsley.
Appeal from Butler County.
AFFIRMED
SYLLABUS. BIZ THE COURT. HORTON, c.
l. An ordinance of city prohibiting the
sale of Intoxicating liquors within the limits
OF such city, except by persons having per-
sell, as provided for by the laws of
laws of the state, Is not ordinance to regu-
late the sale of Intoxicating liquors, but 10
prohibit the sale thereof
p Where police court OF city has jurisdic-
ton 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
compliant In such case. punishment for
the different violations CT the
ordinance is be aggregated
so as to make single or entire punt hment
for all the violations, but the sentence for each
violation is to be imposed separately and
for a separate offense-
All the justices concurring-
a true copy.
Attest: G. ]. BROWN.
lsEALI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
7U6L
Boston Loan and Trust Company VS.. w. NJ
Organ A. o. Wharton and John S. Kenyon.
Error from Lyon County.
AFFIRMED.
SYLLABUS.

SYLLABUS. BY THE COURT JOHNSTON. J
1. Mere Irregularities in the method of OBJ
tanning the vacation of judgment wrong
fully obtained and to which objections
were made VIII not defeat the order Vacating
such Judgment; nor can the omission of a
verifcation TO pleading be regarded a
fatal defect, where the parties proceeded to
trial the merits. without objection, as
though the pleading was verified and the
issues properly joined.
. Pleadings examined and held. to be suffi-
cient TO a1thoriza the trial of the o11estions
submitted to the court, and the evidence
found to be sufficient TO sustain the decision
vacating 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 the property of the defendant had
been conveyed 10 the garnishee in payment of
and that the land when fairly valued was
wholly inadequate to discharge the indebted
ness. There unders landing 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 shown that the debt of
the garnishee was bona fide and that the trans
fer of the real estate in satisfaction of the debt
was made in good faith. and the undisputed
the property beyond what necessary to
satisfy the demand of the garnishee. Held,
That as a sale Of the property under plain
tiff's attachment would yield nothing and
court 6iScharging the garniShee and diSSOlv-
ing the attachment was not error
Ali the justices concurrng
A true copy.
Attest: G. ]. BROWN,
lSEAL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
7112

John r Freese vs. Edward Scouten, ct al
Error from Kiowa County.
REVERSED
SYLLABUs- BY THE COURT HORTON. O.
i. All that is required of an applicant To
make an entry and a purchase of a tract of the
Usage Indian trust and diminished reserved
lands IS that he shall have all the qualffica-
lions OF a pre-emptor; that he shall be an
actual settler on the land at the date of his
therefor. -
A mortgage from an entry man of
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08

951O.
State of Kansas VS.. w. H. Whitmore.
Appeal from Osb orne County.
REVERSED.
SYLLABUS. BY THE COURT. ALLEN. J
On the trial of criminal prosecution for
libel the jury after having received the direc
ton of the court have the right to determine
their discretion, the law and the fact, par.
2fi9. gen stat. 1889. and counsel has the right
10 fairly argue his theory of the law of the
tase the jury. State VS.. Very. 80 Kas. 416,
and in the of his argument may read
from law books recognized authorities
bearing upon the case, and it is error for the
court deny this right.
All the justices cOncurring.
true copy
Attest: e. J. BROWN,
IsEAL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08

1857
E, S. Robinson VS.. r. J. wadden & Company
Error from Franklin County.
AFFIRMED.
SYLLABUS. Blythe COURT. JOHNSTON. J.
In the absence of agreement Or counter
vailing equity the proceeds of a mortgage
given to secure several notes maturing at diff
ferent 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 mortgage. sells the notes to
another and Endorses the two notes first
turing an additional security and to induce
the assignee of the notes and mortgage to
purchase them. 1t 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 the
fund derived from the foreclosure and sale OF
the mortgaged property.
All the justices concurring
true copy.
Attest: G. J. BROWN,
lsEALl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
Error from Finney County.
REVERSED.
es1a.

The Orchard Place Land Company vs. Eugenfa
A Brady and the City of Kansas City.
Error from Wyandotte County.
AFFIRMED.
SYLLABUs- Blythe COURT HORTON C. ]
Where a city, in grading one OF its streets
filled up a natural water course, and as a sub
st1tute for the water course or channel
constructed small sewer or culvert
under the grading embankment on
the street, and with the consent of
land company extended the same sew
eral feet upon Its private property, and the
land company graded up its lots and contin-
ued the city sewer or culvert through its own
property by joining its sewer culvert with
the city sewer. and subsequently the sewer or
culyert OF the land company, on account of its
Negligent construction and maintenance. fell
IN and INSTRUCTED the sewer or culvert built
by the city, and thereby caused the overflow
or the waters formerly carried of by the
natural. water course, Held. That the land
company is liable for the damages caused by
such obstruction of the sewer and the Overflow
OF the waters resulting therefrom-
All the justices concurrlng-
true copy.
Attest c. J. BROWN.
lsEALI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
1858.
The City of Kansas City vs. Emma c. Slang
Error from Wyando tie County.
AFFIRMED.
SYLLABUS BY THE COURT. JOHNSTON.
77O5s.


SYLLABUS. BY THE COURT. JOHNSTON.
1. While q city has power where it is
deemed necessary to divert a stream passing
through its limits from its natural course and
10 confne it to narrower channel, in doing
it must reasonable care to prevent IN
jury 10 others. and if damage results the
owners of private property from its negligence
wrong-dotng in this res pect it will be liable
for the loss
?. Where two more parties by their con
current wrong doing cause injury to third
person, they are Jointly and severally liable
and the injured party may at his option inSti-
5ute an action and recover against one or ali
of those contributing to the injury
3. Special findings returned by the lTy are
to be considered together and if possible are
to be construed as to harmonic them and
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, Nand that the findings sufficient
to sustain the general verdict and the judg
ment.
All the justices concurring.
A true copy.
Attest: &. j. BROWN,
IsEALl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
Joseph T. Patterson vs. Benjamin c. Galusha
Error from Republic County
REVERSED.
SYLLABUS.
JOHNSTON. ].
By THE COURT.

c. who owned a quarter section ofland. con
veyed 40 acres of the same to P. in cOnsfdera
ton that p would assume and pay mortgage
indebtedness which exiS ted against the land
Afterward, G. brought an action to recover
from p ten acres of the land the value Ct
the same, alleging that z. had misrepresented
the nature and amount of the indebtedness.
and that $50 acres was sufic ient consideration
for +he debt assumed Upon the testimony in
the record it is Held, That the parties stood
upon an equal footing; that the nature and
amount OF the debt assumed and the material
facts In the transaction were equally within
the knowledge of both: and that there was no
such deception and fraud on the part Of p as
viii defeat the conveyance of the land or
justify q recovery in favor Of G.
All the justices concurring-
true copy
Attest: G. J. BROWN.
IsEALl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08

Noyes Spicer Martin L. Wheeler.
Error from Greenwood County.
REVERSED.
SYLLABUS. By THE COURT. ALLEN
A petition filed under chapter 80, of the laws
of 1877, to obtain sale of lands for delin-
quenE taxes which does not mention all the
lands sought to be Sold either in the title
body of the petition, but refers to exhibit
as attached thereto, and made a part thereof.
as containing description of the lands but
where no exhibit is In fact attached to the pc
titfon. but a loose paper Endorsed with the
title of the case is fled with the clerk, which
in fact contains description of the land. and
q statement of the taxes, etc, claimed to be
lien on it, is not sufficient basis of juris-
diction for the court to render any jud gnent
for the sale of the lands not described in the
petition, and where a judgment is rendered
under such petition. and lands not men
toned in any manner except in the exhibit
are sold hereunder, such sale is void, and
confers no title on the purchaser
All the justices concurring.
true copy.
Attest: G. J. BROWN,
(sEALI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
1854

A P. Kelly, and W, E. Kelly, Copartners as
The Prairie Lumber Company VS.. Benjamin
+. Martin.
Error from Finney County.
REVERSED.
SYLLABUS. BY THE COURT. HORTON. C.
Where the notice to tax a deposition Spec
lies shat the taking will be adjourned from
day to day." it is not error for the notary, be-
fore whom the deposition is taken. to adjourn
the taking of the deposttiyn from day to day,
at the instance of the attorney for the party
giving the notice, where neither the opposing
party, his attorney appears at any time
before such notary public, and there is no con-
tention that the adjOurnments were taken for
the purpose of annoying the opposing party.
or preventing cross-examination, or causing
any unnecessary expense delay
All the Justices concurung.
A true copy.
Attest. c. J. BROWN
IsEALI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
Error from Waubaunsee County.
AFFIRMED.
ALIEN
SYLLABUS.

In action to foreclose 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 that the
count has not been paid, and the defendant
without objection offers proof that it has been
paid, and after such proof objection because
check. by which the payment is claimed to
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 plain tiff, such finding will not
be disturbed because the pleadings strictly
construed do not present issue of pay
ment.
All the justices concurr1ng
true copy
Attest: c. J. BROWN,
[sEALJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08

1. On the trial of an action on a promissory
note, where the principle issue is to the
commences of the defendants signature
thereto. it is error to permit the defendant 10
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 a forgery, and to
cross examine such witnesses as to such false
signatures, and thereafter introduce such
signatures in evidence. and prove by another
witness the fact that he wrote them himself
2. The rule that writings to be used a
basis for the com parisOn Of hand writings
must be admitted to be genuine by the party
against whom they sought TO be used.
at least clearly proven to be applies as well
to writings used on the cross examination of
witnesses on the direct.
All the justices cOncurrlng-
A true copy
Attest: &. j. BROWN.
LsEAL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08

1894.
The State OF Kansas VS.. John Sutton.
Appeal from Reno County,
REVERSED.
SYLLABUS BIZ THE COURT HORTON. c.
Under section 8. chapter 12I, sess laws of
1871. (parg. 22l2, gen stat 1887 and section %
of the act relating to crimes and punishments
(parg 2226, gen. stat 1897 a person who Il nlaw-
fully 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 feloniously stolen from
such place, is guilty of felony without re-
gard to the value of the goods or properly SO
stolen.
Johnston, J., concurring.
Allen, J., dissenting.
A true copy
Attest: G. J. BROWN,
lsEAL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
SYLLABUS By THE COURT
Where a railway company oN
e5os.

E. s. Ralston. Trustee, Ed F. Burrel. Clerk,
and II. J. Gyles. Treasurer, ct al. The
Dodge City, Montezuma, IL Trinidad Rail
way Company. E. E. Kellogg. Harry Benja-
min, ct al,
Error from Ford County.
AFFIRMED.
SYLLABUS. BY THE COURT. HORTON, G.
l. Each organized township in this state
is q body polite and corporate, and its proper
name may sue and be sued
2 township may bring an action in its
own proper name, but the trustee or other
officers of the township not the proper
plaintiffs in action intended to be brough
by the township. for the benefit of the
township, in the interest of the people
of the township
All the justices concurrIng
a true copy
Attest: G. J. BROWN,
SEALl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08

posit in any bank, subject to withdrawal on
demand. and substantially all moneyed capi-
tai of every descriptio invested for profit shall
be subject to taxation without deduction OF
indie btedness-
prevent the. collection of q tax which the
plaintiff justly ought to pay. for mere irregu-
1aritfes in the proceeding of the assessor, or
other taxing officer,
All the justices concurring.
A true copy.
Attest: G. J. BROWN,
IsEALl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08

l. Hearsay testimony alone is not sufficient
to uphold judgment
2 A mortgage of personal property who
=urrenders the note secured, and cancels the
mortgage in consideration of the note of a
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
Published May 9, 1884,
Supreme Court SynaDi

7117.
c. H Afabry VS., Thos. Harp, Administrator of
the Estate OF Joel Stewart. Deceased
Error from Cowley County.
REVERSED
SYLLABUS. BY THE COURT. HORTON. g.
/. 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 immature6, are personal property.
p Where person In good faith purchases
of q 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 il valid If
he refuses to assent. the sub-tenant cannot, as
against his objection. take possession OF the
premises, any of the growing crop under
the lease
All the justices concurr1ng-
A true copy.
Attest: c. ]. BROWN,
LsEAL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08

71Of.
Laura L. Ferree VS.. c. E. Walker, ct al
Error from Wyandotte County.
DISMISSED.
SYLLABUS. BY THE COURT. JOHNSTON j..
I. When the time for making and serving a
case-made has elapsed, the judge is without
power TO extend the time for that purpose or
70 settle aud sign case which may thereafter
be presented.
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 ihed 10 be correct by the
clerk OF the district court and which Is ! OF
record of the court is not competent proof of
the alleged facts therein contained
All the Justices cOncurring.
A true copy.
Attest: G. ]. BROWN
[sEALl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
95s2.

Charles W. Dutton, County Clerk of Cloud
County vs. The Citizens National Bank of
COncOrdia.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
$500

The State of Kansas on the Relation of John
T. Little, Attorney General The Dodge
City, Montezum & Trinidad Railway Com
pany, ct al
Original Proceeding in Mandamus-
PEREMPTORYewRIT DENIED.
SYLLABUS By THE COURT HORTON. c.
Where a railway company owning a short
line of railroad of twenty-six miles only, is
wholly insOlvent, and such company has no
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 saking into ac-
count the repairs of the road and the taxes
thereon. the supreme court, having some dis
erection in the granting of a writ of mandamus
will not compel, by a peremptory writ, the
railway company to replace put into repair
its track, part Of which has been torn up,
such order would be useless or futile and
of no public benefit
All the justices cOncurring-
A true copy.
Attest: C. J. BROWN,
lsEAL Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08

lib
The Gregory Grocery Company VS.. Young &
Conboy.
Error from Johnson County.
AFFIRMED
SYLLABUS. BY THE COURT. JOHNSTON. J
Failing debtors gave preference to several
of their creditors over others by. executing
mortgages upon their property to satisfy what
were shown to be bona fide debts. An unse-
cured creditor caused attachment to be
levied upon some of the property upon 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 q
hearing dissolved the attachment, and it is
held npon a review of the testiDony that the
ruling of the court not erroneous.
All the judges concurring.
A copy
Attest: c. J. BROWN.
[sEALl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08
7O5S

7058
The Southern Kansas Railway Company vs.
w. w. Painter
Error from Sumner County.
REVERSED.
SYLLABUS By THE COURT. ALLEN. ]
l. Where the plaintiff in action to re-
cover damages for personal injuries makes
statements on the witness stand concerning
matters vital to the case substantially differ
ent from those contained in a deposition
which he admits having signed. but denies
the entire correctness of, it is for the
court to refuse to permit the defendant
read in evidence those parts of the deposition
tending to con tradfct his testimony. and it is
wholly unimportant whether such deposition
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1894-05-08

7133
Julius Winkelmeyer Brewing Association vs.
NJ K. Wolff and John Wolf.
Error from Barton County.
AFFIRMED.
SYLLABUS By THE COURT. JOHNSTON. J
Error cannot be predicated upon the over
ruling of motion for new rial where the
within three days after the judgment was
rendered.
All the justices concurring-
A true copy.
Attest: G. ]. BROWN,
IsEALl Clerk Supreme Court.
711a
Clara N. Sellers, ct al VS.. Henry Gay, ct al
Error from wyandotte County
AFFIRMED
SYLLABUS. BY THE COURT. JOHNSTON, J
The facts in the present case are found to
fall within the decision fSellerS Crossan,
recently decided. and following that case it is
planning parties estop them from disputing
the validity of the mortgages foreclosed in
favor of the defendants in error. Sellers VS..
GrOSsan. So Kas,- IS Pac. Rep 205.
All the justices concurrlng-
true copy.
Attest: C. ]. BROWN,
lsEALl Clerk Supreme Court