The Advocate and news., 1898-01-19
Published January 10, 1881
Court SyIIabi.

Kansas Court Of Appeals, Northern De-
partment, Eastern Division.
No. 81
William L. Challlss, plaintifr In error
John A. Woodburn, ct al, defendants In
error.
Error from Nemaha County District Court
MOTIONS DENIED.
Per Curlam.
The judgment of the trial court rendered
In this action was reversed and the case
| remanded for further proceedings In an
opinion OF this court, delivered January o,
1896, Kan. App. 652. John Worthy, since
deceased was party to the action IN the
| District court Martha u. Worthy, Pres
colt @. Hale and William w. Gurley were
| appointed executors Of the estate of John
Worthy, deceased on January 4, 1895. No
proceeding for the revivor of the action
in the name Of such executors has been
taken in the District court, nor in the
Court of Appeals. The case Is now pre-
sented to the court: ~ BY the motion Of
Charles d. Bdwell and Sarah l.. Bidwell,
defendants in error, to recall the mandate
and set aside the judgment and dismiss
the action. (2) The motion Of William L.
Challss, that the judgment rendered by
|
the lien Of the estate Of John Worthy, de-
ceased Is first and prior lien upon the
realty In controversy.
An examination of the record in this
case shows that William L. Challiss does
| not question the validity, nor priority, OF
! the Worthy mortgage; that defendants in
error are not In position to question NE either
mortgage In this action. John Worthy and
! his executors were not in court at the
! time judgment was rendered by the Court
Of Appeals Neither John Worthy nor his
| executors, were necessary parties to the
| determination of the controversy in this
case. They were not parties to the action
at the time the opinion of this court was
| delivered All of the necessary parties to
| the termination Of the real controversy in
| this action were in court.
The motion to recall the mandate to set
aside the judgment and dismiss the action,
will be denied; and the motion to modify
! the judgment will be denied Each party
will be taxed with the costs Of his motion.
All the Judges concurring.
Filed January 8, 1898.
Attest; W. H. THOMPSON
[seal.1 Clerk.
Kansas Court of Appeals, Northern De-
partment, Eastern Division
No. 27O.
The Missouri Pacific Railway Company,
plaintiff in error,
| vs..
w. s. Bontrager defendant in error.
Error from the District Court of Nemaha
County.
AFFIRMED.
Per Curiam.
This case and that of the Missouri Pa
| cific Railway Company VS.. Nicholas
| Pfrang, just decided, both grew out Of the
same accident, Pfrang and Bontrager each
! owned horses which were killed by the
railway company's train on its right Of
way, the same questions of fact and law
are involved In both cases, and the same
judgment will necessarily follow.
The judgment of the District Court will
! be affirmed,
Mahan, p. j., concurring Wells, j.. hav-
ing been of counsel, not sitting
Filed January 6, 1888.
Attest W. H. THOMPSON,
| lSeaLl Clerk.
Kansas Court of Appeals, Northern De-
partment, Eastern Division.
No 269
The Missouri Pacific Railway Company
plaintiff in error,
| vs.
Nicholas Pfrang, defendant In error.
Error from Nemaha County District Court
| AFFIRMED
! Syllabus. Mahan, p. ].
/. The plaintiff sought to recover of the
railway company damages for horses killed
| by 1t in the operation of it's road under the
act OF the Legislature of 1874 He alleged
! that the company was liable in not having
| It's right Of way enclosed with a good and
lawful fence at the time of the injuries
complained of in this, that it negligently