davidaulloa/AmericanStories huggingface dataset:
The advocate., 1897-05-05
Kansas Court Of Appeals, Northern Depart
ment, Eastern Division.

Kansas Court Of Appeals, Northern Depart.
mens, Eastern Division
No. 2O2.
The Dwelling House Insurance Company,
plaintiff in error,
vs..
The Kansas Loan q Trust Company, trustee,
defendant in error.
Error from Shawnee County District Court.
AFFIRMED.
SYLLABUS. BY THE COURT. McELRoY, J
l. Policy OF nsurance-Limitations OF Suit
0n.-WheFe an insurance policy contains the
provision "ehat when a policy is issued upon
the interest OF a mortgage the assured must
irst exhaust the primary security before he
can recover the amount of insurance." and
another clause providing "no suit or action
agatnat this company upon this policy shall
be sustainSble in any court OF law or equity,
unlees commenced within six months after
the loss or damage shall occur" such provf-
slons being inconsistent, the ordinary statute
oE limitations would be applicable TO such
cases.
q Mortgage Clause -LimilasiOn OK Acti0n--
Proof OK LOGS, The mortgage clAuse sngd on
The advocate., 1897-05-05

tiong, should not be regarded as reversible
error nor should new trial be granted In
such case, unless the facts touching such sep
arations are such as TO raise reasonable sus-
picion of abuse.
g. Misconduct Not Presumed.-A juror asked
the court question In the absence Of some OF
the attorneys in the case the court declined
10 answer the question except In the presence
Of counsel. When the question was again
mentioned by the court the juror said, ave
have settled the question among ourselves"
During the interval, however, the Jury had
been In session In the jury room and had been
permitted to separate for the night. In the
absence OF any showing TO the contrary, the
court will presume that the question was set.
tied during the session OF the jury In the jury
room. Misconduct on the part OF the jury will
not be presumed in the absence Of any eVi.
dence OF such misconduct.
All the Judges concurring.
A true copy.
Attest. w. II. THOMPSON,
[sEAL] Clerk
The advocate., 1897-05-05
Kansas Court OF Appeals, Northern Depart
ment Eastern Division.

Kansas Court OF Appeals, Northern Depart.
ment, Eastern Division.
No. 44O.
The Leayenworth Coal Company, plaintiff In
error,
John RGtchford, defendant In error.
Error from LeAvenworth County District
Court.
AFFIRMED.
SYLLABUS. BY THE COURT. MAHAN, p. ].
/. Proof that live electric wire belonging
90 an electric light plant, Is broken and lying
upon the premises OF the plaintiff In she city,
In such condition as to endanger the prop.
erty OF said plaintiff, and that In attempting
20 remove the same injury resulted to the
plaintiff therefrom, makes prind tdct6 case
Of negligence against the defendant company,
emitting the plaintiff 70 recover for such
damages.
3. In such case the plaintiff has right to a.
tempt 20 remove such live wire from his
premises, using ordinary care therein, and
such an attempt TO remove live wire Is not
SpS0 fGct0 contrihutory negligence
8. lt was the duty OF tho defendant COM
pGny, using the streets and alleys OK ghe city
o1 LeavenwOyth with Its poles and overhead
wires In lighting the city and She houses
ther8in % employ Sufficient number OF men
ana t0 use she best OF the devices known s0r
one purpose ot preventing injury 70 taa IN
ha5lkNptS OK the eity nv the displacement
The advocate., 1897-05-05
Appellate Court SyIIabl.


BILE to the evidence, and the other 10 given o.
the instance OF the plaintiff In error and Is
erroneous and was an Improper instruction TO
be given 10 the jury, the plaintiff In error has
no right 10 complain thereof and such orrone.
GUS instruction Is no ground for reversal OF
the Judgment 90 his request
8. The following instruction, to-Wit: "The
Jury are instructed that while an employe as
sumes the ordinary risks and hazards incl
dent 20 the employment In which he is en-
gagged, vet the risk OF the safety OF machinery
or premises about which said employe works
are not assumed by him unless he knows the
danger or unless Ii is so obvious that he Will be
presumed TO know II. He takes the risk Of
known or Obvious dangers and not Others" Is
o correct statement OF the law as applicable TO
the facts In the case.
9. The courts instructions as to the measure
OF damages 10 correct statement OF the law,
and the court will not presume that the jury
awarded any damages upon account or any
matter therein referred 90 In the absence OF
ell evidence TO support such allowance.
All the Judges concurring.
true copy. ,,o,,,oo,,
Attest w. n. THOMP5ON,
TsEAL1 Clerk.
The advocate., 1897-05-05

or breaking. OF fee wires, and especially 30
Immediately afb0F q storm likely 20 produce
such displacement or breakAge.
T. The fact that live wire 10 emitting sparks
and o blaze OF electric light, apparently teOp.
aFdizing the buildings OF the plsintih, viii
not OF itself preclude the plaintih from at
tempting, uging ordinary prudence, 20 remove
such wire for the purpose OF relieving his
property from apparent danger OF con-
flagrAtion, and such On attempt made by the
plaintiff will not be held ag a matter OF law TO
be contFibutory negligence.
B. The plaintiff, having discovered that a
broken wire OF the defendant, emitting blaze
Of electric hro apparently endangering his
property, and I'm attempting TO remove the
wire from his buildings apparently jeopar-
died thereby, using for that purpose base
ball bat, and being injured by coming In
contact with the wire by an unexpected move
ment Of the wire caused by It's being thrown
from the buildings by the use OF such bat,
such injury Is the proximste result OF the neg
ligance Of the defendant company In permit.
ting IT'S wire to be broken and displaced and
TO fall upon the plaintiffs buildings.
All the Judges cOncurring.
true copy. -
Attest: VIII. THOMPSON,
IsEAL1 Clerk.
The advocate., 1897-05-05
Kansas Court Of Appeals, Northern Depart
ment, Eastern Division.

Kansas Court Of Appeals, Northern Depart
ment, Eastern Division.
No. 1893.
The Board OF County Commissioners Of Doni-
phan County, Kansas, plaintiff in error,
VS..
David Allen, defendant in error.
Error from Doniphan County District Court.
AFFIRMED.
SYLLABUS. BY THE COURT. MCBLRoY, ].
1. Demurrer to Petition Properly Sustained.
lin an action against an executor sin per =
sORGm" for the recovery Of taxes assessed
against IAN executor as executor OF the estate.
OF deceased" the petition does not state q
cause Of action, and o demurrer thereto wss
properly sustained. Defects In the petition
discussed and pointed out.
2. Presumpti0ns as to the Collection OF
Taxos.--In the absence OF showing to che
contrary, 1t will be presumed that taxes can
be collectedin the ordinary method prescribed
for the collection of taxes and petition in
an action Tor the recovery Of Judgment on
account of the BOn-payment OF taxes, does not
state q cause OF action unless the petition
shows afirmatively that such taxes could not
be collected In the ordinary method provided
by law for the collection of taxes.
All the Judges Concurring.
Attest: W.H. THOMPSON,
[sEALl Clerk.
The advocate., 1897-05-05

use Is one Of the concurring conditions Of a
homestead; unless che premises are used as o
homestead, no right or benefit OF homestead
exists therein. A judgment Is lien upon
real estate formerly occupied As homestead
from and after such real estate is abandoned
as such homestead.
All the Judges concurring.
true copy.
Attest: w. H. THOMPSON,
LsEAL Clerk.
The advocate., 1897-05-05
Kansas Court OF Appeals, Northern Depart
ment, Eastern Division.

No. 15O.
The Lawrence Canning Company q corpora
tlon, plaintiR In error,
VS..
The II. D. Lee Mercantile Company, corpora.
tion, defendant In error.
Error from Shawnee County District Court.
AFFIRMED.
SYLLABUS. BY THE COURT. McELRoY, ].
4. Failure TO Accept Goods Measure OF
Damage-Sale Without Notice.-A contract
for the sale OF a car OF canned tomatoes on
track at SAlinA for future delivery, the pur.
chaser declined to receive and pay for the
goods on delivery, Held, that the measure OF
damage was the difference between the con-
tract price and the market value of.such goods
90 the time and place agreed upon for de-
livery. And held, that sale OF such goods
month later In g distant market, without no.
tice, was not evidence OF such market value.
All the Judges Concurring.
A true copy. -
Attest: w. ii. THOMPSON,
[sEALl Clerk.
The advocate., 1897-05-05
SYLLABUS.

bYLbABUBs DIX THE OOUhIs MOhLhOH1 D.
l. Ambiguous Written Agreement.--Wher
two parties have made settlement, and such
settlement Is evidenced by written agree
ment, and such writing rs indefinite as to
whether all or only o portion Of the differ
ences existing between the parties were set
tied, and such issue Is made and fairly pre-
sented TO che jury, their findings OF fact when
approved by the trial court, IL such findings Is
fair and reasonable deduction from the
written agreement, the Judgment should be
affirmed.
O. Rule Six OF Practice Court Of Appeals
Where case Is submitted 10 the Court Of Ap.
peals on written briefs without oral argument,
aud no specification of.erFors are pointed out
by the plaintiff In error, this court will not
make an exhaustive examination OF the record
for the purpose OF finding errors in the pro-
ceedings OF the trial court,
B. Rules Of Practice-Preparat OF Briefs
Attorneys In the preparation Of briefs must
substantially comply with rules OF practice in
fairness to litig@nts and 10 this court. This
court does not look with favor upon technl-
calities, but..it Is not technical to Insist upon
substantial compliance with the rules Of
practice The rules Of this court are nsces.
sary for the dispatch Of business In this court.
All the Judges c0ncurring,
A true copy.
Attest: w. Il. THOMPSON,
lsEALl Clerk.
The advocate., 1897-05-05
Kansas Court Of Appeals, Northern Depart
ment, Eastern Division.

Kansas Court Of Appeals, Northern Depart
ment, Eastern Division.
No. 1856.
Lille Morris, plaintiff in error,
VS..
S. E. Brown and Charles Baker, defendants In
error.
Error from Brown County District Court
AFFIRMED.
SYLLABUS. BY THE COURT. McELRox, J.
/. Judgments - Lien OF. - Judgments Of
courts OF record OF this State are lien on the
reaR estate Of the debGor within the county In
which the Judgment is rendered, from and
after the first day OF the term at which the
Judgment is rendered. (Babccck v. Jones, 10
KAns. S02,)
2. Abandoned Homestead-Judgment Lien.
"A homestead necessarily includes the idea
OF D residence. Tho use is q test by which 90
determine WheEhar particular premises Mgas
Or arc not, the homestead Ok th9 owner, IAs
The advocate., 1897-05-05
Kansas Court Of Appeals, Northern Depart
ment Eastern Division.

No. .17S.
Adaline Crane, plaintiff in error,
va.
Charles R. Hughes, defendant in error.
Error from Common Pleas Court Wyandotte
County.
RFVEPQVn
The advocate., 1897-05-05
Kansas Court OF Appeals, Northern Depart
ment, Eastern Division.
No2l0.

ment, Eastern Division.
No. 2l8.
Charles T. Daily, plaintiff In error,
vs..
]. b. Bartholomew, defendant In error
Error from Shawnee County District Court.
REVERSED.
SYLLABUS. By THE COURT. MAHAN, P. j..
/. The contract OF assignment OF negotia'
BILE promissoTy note and the contract OK In
dOrsement may both be made at or near the
same time, by the same person, In connection
with the sale and transfer OF the note and the
mortgage securing the same.
2. In this case the defendant Bartholomew
made an assignment OF the note In writing,
upon the back of the note, and also iDdorsed
bhe note by a separate contract, In writing,
by blank Endorsement, waving protest. Ape
tltion, which alleges these facts, in connec'
tion with an allegation OF the making and de-
livery of the note by the makers, although
both contracts are set out In the petition,
states q ,gOOd cause Of action against Bar.
tholOmew, and the sustaining OF a demurrer
thereto was error.
All the Judges concurrng.
true copy. -
Attest: w. II. THOMPSON,
fsFALl Clerk.
The advocate., 1897-05-05
Kansas Court OF Appeals, Northern Depart.
ment, Eastern Division.

Kansas Court OF Appeals. Northern Depart.
ment, Eastern Division.
No. $780,
W. w. Manspeaker and F. G. Hentig, plaintiffs
in error,
vs.,
Caroline H. Plpher, ct al, defendants In error
Error from Shawnee County District Court.
AFFIRMED.
SYLLABUS. Blythe COURT. McELRoY, J.
1. Additional Security for CONSTRUCTION
FOr.--Where the record shows that q deposit
OF money was made In lieu OF o bond for costs;
and whore there IS no showing In the record
that this amount was not entirely sufficient
for all costs in the case, and none OF the par
Ties In interest, In such costs, make any COM
platnt in regard to the security therefor, this
court will presume that such deposit was suf-
hcient, and that the trial court In the exer-
else OF It's discretion properly oveFruled such
motion. A Judgment ought not to be set aside
on account of an erroneous ruling upon such
motion in any event for that reason alone.
(WilcoX " ByingtOn, SO Kan. 212)
q Incompetent Testtmony-Mott0n to Strike
Out.-The question asked was objected 70, but
the question was proper one" Have you any
property interests In Topeka, Kansas, so far 90
you known Answer, 81 claim to have, as one
OF the heirs at law OF william Mentz, de-
ceased, an interest in lots a." The first
clause OF this answer was proper; there was
no motion to strike out any part OF the an
sWer. Held, that the improper portion OF the
answer was admitted without objection.
3. Conditions Precedent-Deed Conclusive.
The testimony Of the defendants in error
shows perfect chain of title from the gov
eminent to William Mentz. The bond for the
deed issued by Cyrus X. Holiday Ia conclu-
sive upon the question a3 20 whether Sll the
conditions relative to the drawing Of lots had
been complied with. The defendants in error
are not required to prove shat all the cOndl.
tlons precedent 60 the issuance OF the deed
had been complied with; the deed being is
sued, Is conclusive upon that subject.
T. Immaterial Errors.-Thts court will not
reverse judgment Of the District Court on
errors which are wholly immaterial; the spe-
Clal findings of fact by the jury would require
q judgment such as the one entered. In the
motion for a new trial the plaintiff In error
does not ask that the special findings Of the
jury be set aside. The findings OF fact by the
jury upon the facts in controversy should,
therefore, be conclusive.
All the Judges cOncurrtng.
A true copy.
Attest W. II. THOMPSON,
IsEAL1 Clerk.
The advocate., 1897-05-05
Kansas Court OF Appeals, Northern Depart.
ment, Eastern Division.
No. ia.

n6nb, h&AboEu D4VASAOu'
No. ia.
w. B. Gleason, OF al, plaintiffs In error,
w.
Abram Strauss, OF a., defendants in error,
Error from Jackson County District Court.
AFFIRMED.
SYLLABUS. BY THE COURT. MCELRoY, J.
1. Trial-Civil Case--SepRratIon Of Jury
Admonition.--It is che duty OF the court TO
admonlsh the jury IL the jury are permitted
TO separate either during the trial, or after the
case Is submitted to them, as required by Sec
tion &9 OF the code OF civil procedure. But
where the court has prior to any separation OF
the jury and ct each adjournment Of court,
admonished the jury as TO their conduct dur.
ing such separation, this ia substantial com.
pliance with the statute. The mere acCi-
dental separation Of the jury during the trial
Of the case, when the courts attention Is oc-
cupied with the pleadings or instructions,
should not be regarded as cause for new
trial, unless tho losing party shows that he
has been injured by such separation.
2. Accidental Separation Of Jnry.--In civil
cases the mere fact that the jury has been per-
mittad 70 separate during q few minutes r0-
cess, without baing then admoniahed, whore
She cOurt had pFoyiounly n6monished She
joTy Bs 90 thelr coNdnet during snch sepagA-
The advocate., 1897-05-05
DISMISSED.
SYLLABUS.

/. AS repeatedly held by this court and the
Supreme Court, jurisdiction to review the
case must aflrm0tively appear by the record.
T. An action, the object OF which is TO re.
strain the commission OF an act which the
plAintlR alleges to be nuisance, Is not within
any OF the exceptions Of the statute fixing the
jurisdiction Of the Supreme Court and this
court, as courts OF error, and the amount OF
damages oocSsioned by the act sought to be
eniolned not appearing In the record, nor any
value or amount in controversy, this coure
has no jurisdiction 20 review the judgment OF
the District Court.
All the Judges concurring.
A true copy. -
Attest: w. II. THOMPSON,
[sEALl Clerk.
The advocate., 1897-05-05
Kansas Court OF Appeals, Northern Depart
ment, Eastern Division
No. l58.

George W. Garretson, plaintiff In error,
vs..
The Chicago, Kansas Il Nebraska Railway
Company and The Chicago, Rock Island &
Pacific Railway Company, defendants In
error.
Error from Brown County District Court.
The advocate., 1897-05-05

Kansas Court Of Appeals, NOrthern Depart
ment, Eastern Division.
No. 100.
James Jensen, plaintiff in error,
V9.
Obidiah JordOR, defendant In error.
Error from Brown County District Court
AFFIRMED.
Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1897-02-18


The line Of survey between the Musu-
piabe rancho and the forest reservation,
which has been SO often disputed and so
many times surveyed, has at last been
settled, and In a novel manner. A
huge sycamore tree has given witness.
and that In the form Of record that ia
beyond dispute. The originnl survey
OF the line in question was made al
most 30 yenrs ngo. On the location Of
station 90 there has never been any dis
pute. but many claims were pu,
forth for the location OF sectien 30
Later and private surveys claim that the
line must have gone almost straight
east from section 20, which Is In Devil
canyon. Again, the claim has been
made by surveyors that the line OF the
survey from station 20 to station 30
runs in general southeasterly dircc-
ton. As station 30 Is over a mile east
OF station 20, this made n discrepancy
Of over 500 feet at station 80.
Many private surveys have been made,
md the exact location of the line has
been the subject of many thousands OF
dollars worth OF litigation. In the
Muscuplabe land cases this has been
one of the subjects Of dispute. short
time ago United States Surveyor G. A.
Perrine appeared In this city with q
force of men. and has been steadily
working on this survey ever since. The
original survey. made 30 yenrs ago, was
the work Of Surveyor John Hancock
ard the field notes made by him were
brought with Mr.. Perrine. When the
dispted territory was passed there was
a memorandum stating that q tree had
been blazed near station 30. Arriving
at n point where he thought the sta.
tion should be located, MIR. Perrine
sighted over the surrounding country
for tree which he thought might have
been growing at the time of the first
survey.
A tree was found that bore on its
trunk a rough aud gnorlcd spot. The
surveyor decided that IL this was the
tiee inside Of the trunk should be indi'
cations Of the original marks. lie took
an AK, cut above and below the rough
spot, remove a huge chip and there in
tue heart of the tree were the original
marks made long ago. The characters
appeared inverted on the chip, and as
pain as the dny when first made-"M-
Bob. t." signifying Muscupiablc sta
ton 30, blazed tree.
The chip was brought TO the city and
forwarded TO the federal courts at Los
Angeles, where II will in the future bt
used as evidence, clearly proving the
original line Of survey. The marks or
the trunk OF the tree had been over
grown with almost 80 years Of growth
30 that IL was due TO Mr.. Perrine's per
severance and knowledge Of botany
that the line was definitely settled be-
yonda all dlspuie.-San Bernardino (Cal..
sun.
Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1897-02-18
CAGES VIEWS.


The Next Secretary 81 the Treasury speaks
~ Farewell Dinner.
CncAoo. Feb. I3.-The Commercial
club last night gave a farewell dinner
20 Lyman J. Gage, the next secretary
OF the treasury, about 100 men prom
inent in business circles being present.
In the course of his speech Mr..
Gage said. "Wisely or unwiscly,
i have pleaded for toleration,
for patience with misunderstand-
ing, for broad citizenship, not
limited 10 local surroundings;a a citizen
ship which welcomes business success,
because Il lends power and influence
in the larger social life, TO which duty
and true happiness stand in close rela-
tions." Mr.. Gage said that the most
advanced scientists now recognized
that very large number of So
called diseases found their existing
cause in that part of the physical
organization known as the emotional
center. These diseases could not be
reached by ordinary means. but should
be addressed through mental impress
sions and suggestions. This, he inti-
mated, was the source of trouble with
the social state, and continued: "Gt is
unwise TO be blind to the dangers in
such situation. Hysteria, though
functional in its operation, may induce
organic disease. Men of steady minds
and strong hearts must with temper
ance and charity and the exercise of
right reason find the true path which
leads to peace and safety. There are
real mistakes TO be corrected. We
have violated the natural laws which
govern in the realm OF economies with
the same force and power that they do
in the physical realm.n
Indian chieftain. [volume] (Vinita, Indian Territory [Okla.]) 1882-1902, 1897-02-18
BELIEVED IN FATE.
Weird Discussion In snowbound Frontier
Army Post.

Weird Discussion In n Snowbound Frontier
Army Post.
In the days of the cold army" on the
frontier, when military posts were
sometimes hundreds of miles from any
civilized place, there was little 10 do in
the way of amusement in the winter
time when the post was snowbound,
and IL was then that the reputation
the army has for card playing and
drinking was gained. And IL is trae
that a great deal of both was done at
that time.
IL was in these days that an eve mt
transpircd that showed that the prln-
cipal actor had the courage Of his con-
victions. and that he was most GER
tainly born under lucky star. IL was
after a very wet" stag dinner party,
and all had partaken most freely of
the wine, and, strange as IL may seem,
the subject that came up for discussion
was the Mohammedan religion. The
Mussulmans believe in fate. To them
a mans fate is written above, and the
time of his death is set, and nothing
can advance IL. Well, this belief had
been discussed long and earnestly.
The pros and cons had been gone over
at length, till one officer wanted 10
know of Whit use was reason IL every
one was born with tag of destiny at
tached. One officer finally arose and
said there was no use of discussing the
matter any further, the only way was
TO make a practical test of the cues
tion, that he would give himself as a
subject. Could a man willfully dis
pose of his life when the fatal moment
had been chosen nj his birth from
above?
He could get no one TO try the ex-
pertinent ON him. Finally a wgger
was made.
"Who will pay you II lose?' said
the subject as he drew his pistol and
showed that Il was loaded. He placed
the pistol against his temple and pul led
the trigger The pistol missed fire.
"A joker yelled the crowd.
The fatalist smiled, and, recocd ng
the pistol, aimed IL with a steady hand
at the clock on the wall. lie fired and
the bullet crashed through the center
of the dial.
apologize 10 me now he said. II
have won the bet. i always believed
In fate. e.n-Cincinnat Enquirer.