The Wichita daily eagle., 1895-07-09
LEFT OUT In COLD
APPELLATE COURT MAKES IMPORT
ANT DECISION.
Frazier of Kingman Owned . Lot that
Caused a Loan Company Much Worry
The Railroad Ran Through it and Mr.
Frazier Got the Damages while the
Loan Company Got Left-Frzzier was
Sued but He Beat the Case in the Lower
Court and the Appellate Court Sustains
the Declsion-Other Court News.
the Decrsion-O.her Court News.

Yesterday the judges Of the court OF
| appeals met and assigned fifty cases
for the October term in this city.
The opinion Of the court in the case of
Philando Armstrong against A. B.
| Moore, appealed from Kingman county
which opinion has just been handed
down is interesting.
One Frazier owned a town lot In
Kingman. He gave a mortgage TO the
Kansas Loan and Investment company
on this lot. This happened to be right
in the right-of-way condemned for the
Hutchinson Southern railroad. The
publication of condemnation was made
the clerk received from the county COM
missioners the report of the land con-
demned and the names of the several
owners. The clerk on the same day
transferred this report TO the county
treasurer. A. 3. Moore. The same day
Frazier, who owned the lot but had Civ
en- the mortgage on il for $500. called
on the treasurer and received $3.50
damages.
OF course this left the Kansas Loan
and Investment company out in the
cold with the front door locked. Now
Philando Armstrong, for the Loan COM
pany sued Moore. the county treasurer
for the recovery of the loan of 500.
claiming that the county treasurer
knew there was a debt on the land and
should have turned the money or part
of il, to them. The court below refus-
ed relief to the loan company.
The loan company appealed the case
and the appellate court here affirlns
the judgment. The opinion is by Judge
Johnson. He holds that there was a
remedy for the loan company al the
time Of the condemnation publication
when it could have gone before the
county commissioners and given them
notice Of the fact that they had an in
terest in the land by reason Of their
claim. This they failed to do and now
there is no recourse for the loan COM
pany except an action on their note
against the owner of the land who
made the mortgage. Or in other words
the loan company slept on its rights too
long.
For the appellate court says in its
opinion: where party stands by and
sees the right-of-way of railway
through the county condemned. when
he ought 10 know that IL will affect
lands that he has some interest in either
legal or equitable. until the commits
sioners have completed their work and
filed their report and the company made
its deposit, in accordance with such re-
port and the treasurer has paid out the
money deposited to the parties whom
the commissioners have found 10 be
owners, and awarded the compensation
TO them, he will not be heard to COM
plain of the payment by the treasurer
of the money to the wrong party. Equi-
~ requires party when proceedings
are being had by those authorized 10
act. whose acts may affect his rights
to make his claim known il he has
any, and if he does not speak when he
Vt ,-f.-
he will not be heard when he does
speak"
An appeal from the decision OF Judge
Shinn of Ell Dorado was filed yesterday