The Advocate and news., 1898-03-16
published March l6, 1881
Appellate Court SyIIabi.

Syllabus. Wells, j.
/. Where an action is founded upon a
written instrument, a copy OF which Is
set up in q petition, and the answer thereto
Is not verified, the execution OF said In
strument Is admitted.
q When the execution OF q written in
strument is admitted by the pleadlngs, It's
legal effect must OF necessity follow; ana
what It's legal effect is is purely ques-
ton OF law for the court to determine.
But this does not prevent the defendants
from impeaching said contract for fraud,
accident, or mistake in the execution
thereof.
3. This action was brought upon a writ
ten instrument, and as defense thereto
the defendant plead the tendency of
another suit between the same parties
upon the same cause OF action and for the
same relief; and 1t appeared from the EVIL
dence that the action pleaded In bar was
upon q Judgment rendered by court In
Illinois upon the same written instrument
sued on herein and the recovery sought
In that case was primarily the same as In
this: Held, that the tendency Of the first
case was bar to the prosecution or the
second
Before the trial in the second case
the court had sustained demurrer to
the petition in the first, and the plaintifr
had elected to stand upon his petition as
fled and Immediately began proceedings
ment sustaining said demurrer: Held,
that the action was still pending and bar
to the prosecution OF the second suit.
Filed March 2, 1898.
A true copy
Attest: w. H. THOMPSON,
(Seall Clerk.
Kansas Court Of Appeals, Northern De-
Oartmpnt. Central Division.
No 2SO
P. Darby, plaintiff in error,
VS.
The Board of County Commissioners Of
Washington County defendants in err
ror.
AFFIRMED.
Syllabus BY the Court. McElroy, ].
l. Chapter 90, of the Laws OF 1893, ent-
tied "An act regulating the salaries OF the
County Treasurer, County Clerk, Register
Of Deeds, County Attorney, Probate Judge,
Superintendent of Public Instruction, and
Clerk of the District court Of Washington
county" is constitutional
All the Judges concurring.
A true copy.
Attest: w. II. GATES,
LSeall Clerk.
Kansas Court of Appeals Northern De-
partment, Central Division.
No. 27S.
The City of sallna, plaintiff In error,
VS.
Edith b. Kerr, defendant in error
Error from Saline County District Court
MODIFIED AND AFFIRMED.
Syllabus
l. A demurrer to the evidence should
never be sustained where there Is sub
Stantal evidence to sustain every ma
terial allegation Of the plaintiffs claim.
2. Evidence that q visible defect has ex-
listed I'm u sidewalk of q principal street
OF n city for several months IS sufficient
to warrant n jury in finding the city neg
ligent in relation thereto
3. In presenting bill to City Council
for damages OccasiOned by injuries re-
celved on account OF q defect In n side
walk IT is not necessary, to enable the
claimant to recover costs in a subsequent
action therefor, that such claim should
specify the various elements of damage;
nor is such claimant limited In subse-
quent action therefor against the city to
the amount OF such damage so presented
I'm his claim to the City Council.
All the Judges concurrlng.
A true copy.
Attest: w. H. GATES,
lSeaGl Clerk.
Kansas Court OF Appeals, Northern De-
partment, Central Division.
No. 2S6.
The Home Insurance Company of New
York, plaintiff In error