davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
D. A. VALENTINE,
Clerk Supreme Court
No. 1885,
Atchison, Topeka and Santa Fe Rail
way Company

No. 1886.
The Atchison, Topeka and Santa Fe Rail-
way Company
Ira Schroll.
Error from Harvey County.
REVERSED.
Syllabus. BY the Court. Graves J.
1. An employee, while employed for a
railway company, was injured Soon there
after he made and delivered to his en-
ployer a sworn statement detailing the
circumstances under which the injuries
were received. Afterwards he commenced
an action against the railway company to
recover damages caused by such injury
In such action he attached to his petition
as an exhibit, the sworn statement before
mentioned, and made it part of the
pleading. It then clearly appeared from
the face of the petition that the plaintiff
was guilty of contributory negligence at
the time he received the injury Of which
he complained. Held that the pleading
was insufficient and would not sustain a
recovery.
2. Where, in such an action, the court,
without objection, instructed the jury to
accept the statements of the exhibit at
tached to the petition as true, such in
struction became the, law of the case, and
1T was the duty of the fury to follow and
obey the direction given verdict re-
turned in violation OF such instruction
does not furnish legal basis for judg-
ment. - So E6s
{ All the Justices conrurring.
Attest: d. A. VALENTINE, 1,i
3 GSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
LEGAL.

a carriage against a street ear company
for personal injuries resulting from col
lision between the carriage and car, ev.
idence is pertinent of the management OF
the car and of the conduct of the driver
from the time the horse manifested sucn
fear of the approaching car as should
have attracted the attention of the motor
man to the time Of the collision.
In such case, whether the proximate
cause of the collision was the negligence
of the motorman or whether the driver
was guilty of eontributory negligence
were. the evidence as to the circumstances
being conflicting. questions for the deter
mination of the jury under proper in
structions: and the jury in solving such
questions should take into considera ton
the circumstances shown by the evidence
paragraph.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
[SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
No. 1904.
Dan Deter and w. M. Jaillite, Partners as
Deter & Jaillite,

No. 150S4.
Dan Deter and w. M. Jaiilite, Partners as
Deter & Jaillite,
G. H. jackson and Belle Jackson.
Error from Morris County.
AFFIRMED.
Syllabus. By the Court. Johnston, C. ].
1. In their original petition plaintiffs al
legged that defendants engaged to sell
plaintiffs land at a price of $4,000 for a
commission of SIPS, but that if only So, 800
could be obtained for the land the COM
mission would be 500; that the land was
in fact sold for $4,000, but that defendants
fraudulently represented that only So 800
was obtained for it; that under this de-
ception plaintiffs accepted the So, 800 and
paid the defendants a commission of 500;
that defendants fraudalently collected and
price paid for the land. They then asked
for judgment of SIS. Later, upon appli-
cation. plaintiffs were permitted to amend
their petition by alleging that defendants,
through their fraudulent conduct, had
forfeited all right to any commission for
the sale of the land and asked for a re-
covery of $500, which included the remain
mission, which they were fraudulently
induced to pay. Held that no error was
committed in allowing the amendment.
2. Where real estate broker falsely
states the facts and deceiyes the owner
as to the price paid for his land and fraud
the broker is liable not only for so much
of the consideration as he retained, but
he will also forfeit all claim to any COM
pensatfon for procuring a buyer.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
lSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
No. 1872
C. L. Davidson and A. NJ Allbe

c. L. Davidson and A. NJ Allbe
VS..
J. p Cattle Company.
Error from Stanton County.
AFFIRMED
Syllabus. By the Court: Burch, J.
The holder of an Invalid tax deed in
possession of real estate brought an ac-
lion to quiet his title. The tax deed was
held void as a imminent of title but the
lien of the taxes was preserved and the
land was ordered sold and sold to
satisfy it. Held, the redemption act (ch.
109, Laws 1888 has no application to such
a sale and neither the defendant owner
nor the holder of mortgage lien has any
right to redeem therefrom.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
TSeaIJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
No. 1910.
The State of Kansas

No. 1910.
The State of Kansas
VS..
Charles z. Taylor ct al.
Appeal from Miami County
MOTION DENIED.
SylIab bus By the Court. Porter, j.
Section 1, Chapter S3s, Laws of 1893,
fGen. Stat 1905. sec 37s3l does not au-
fhorize the allowance of an attorneys fee
for services in the supreme court on an
appeal from a judgment of conviction for
contempt in violating an injunction grant
ed under the Drohibitory law
All the Justices concurrlng.
A true copy.
Attest: d. A. NAIEN line
fseaI1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
FuRNTruRE REPAIREp

! 3. J. Tricilsr does expert furniture re-
4 pairing. Carpenter and Job work also
] neatly done. "a w. 18th st. Bell. 1851
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
No. 1908.
w. A. Roberts

Lille A. Pagan.
Error from Shawnee County.
Syllabus. BY the Court Graves, j.
AFFIRMED.
l. An affidavit for service by publication
as required by section 70 of the Civil Code,
which reads:
Hattie Roberts, of lawful age, being
first duly sworn, on her oath says: That
she is the plaintiff in the above entitled
action; that on the Both day of April, 1902,
said plaintiff filed a petition in the dis
state. against said defendant, w. a. Rob-
erts; that said action is an action to OBJ
tain a divorce; that said defendant is a
non-resident of the state of Kansas, and
that personal service of summons cannot
be had upon said defendant within the
state of Kansas; and that plaintiff wishes
to obtain service upon said defendant by
publication is sufficient, and due publ
cation of notice in pursuance to such af-
fidavit will confer jurisdiction on the dis
trict court to grant divorce.
2 When parties have been divorced by a
court having jurisdiction thereof, and no
proceedings have been taken to vacate or
modify the decree by appeal until the stat
utory time therefor, has expired, all the
rights which either had to the property of
the other by reason of the marriage rela-
ton will be extinguished by such decree.
8. The statute does not require the resi-
dence of the planting to be stated in the
affidavit for service by publication, and
therefore, such a statement therein is un-
necessary.
All the Justices concurring.
true copy
Attest: D. A. VALENTINE,
GSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
No. 1861.
The State of Kansas


Charles s. Altcmus.
Appeal from Chase County.
REVERSED.
Syllabus. BY the Court. Smith. ].
i In a criminal prosecution for kidnap-
ing in weighing or decoying a person with
intent to cause such person to be taken OF
sent out of the state against his will. the
evidence as to the conduct of the defend
ant toward such person prior to the TAX
Ing from the state should be confined to
such acts as evince an intention to take
or send the person out of the state against
his will.
q An instruction ought not to begiven.
although 1t is a correct statement Of the
law in the abstract, which Is not applica-
BILE to the facts that are in evidence. (The
State VS.. Whitaker, IS Kan. 731,)
All the Justices concurring.
A true copy. -
Attest: d. A. VALENTINE,
rSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
No. 1878.
George Harper

No. 1878.
George Harper
The lola Portland Cement Company and
Dan Lang.
Erfof from Allen County.
REVERSED.
Syllabus. By the Court Burch. j.
Inc DECISION in the case of Brick COM
pany " Shanks, SO Kan. 306, to the effect
tnat masters duty requires him to
make and carry out regulation to render
me WORK YORK OF his employees reasonably
assume the risk of injury from dangers
against which the master has expressly
fellow servant rule has no application
when the negligent employee Is charged
With duty which the master is bound to
IulIlli, applied to a personal injury case
growing out of the operation of a stone
All the Justices concurring.
Attest: D. A VALENTINE
tSeai-i Clerk Supreme Court.
No. 1876.
The Atchison. Topeka & Santa Fe Rail-
I way Company
VS..
The Board of County Com missioners OF
Sumner County. ct al.
Error from Sumner County
REVERSED.
syllabus. By the Court. Graves j.
l. Where the state board of equalization
duly apportions the tax for state pur-
state, and determines that the assessed
value of all taxable property other than
railroad property. in any county shall be
increased given per cent in order to
produce the amount of state taxes so ap-
portioned to such county, and this action
of the board is duly certified to the coun-
ty clerk of said county, then it becomes
the duty of such county clerk either to
increase the assessed value of the prop
erty as directed, or to increase the exist
ing rate thereon so that the tax for state
purposes produced from the taxable prop
erty Of such county other than railroad
property at the Increased value or rate
as the case may be- will together with
that produced from the railroad property
the amount of state tax as apportioned to
such county.
2. Where a county clerk, in such a case,
instead of doing as above stated, increased
the existing rate sufficiently to carry out
the intent of the board of equalization, as
above indicated, but such Increased rate
was applied to all the taxable property
in the county, Including railroad property
then the tax produced from railroad prop
erty by reason of the increase of the rate
thereon, is excessive and illegal
8. Where a railroad company is required
under the facts herein above stated to
pay such excessive and Illegal taxes, the
same may be recovered back.
4. The petition in this case examined
and found to state cause of action, and
the demurrer thereto should have been
overruled
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13

No. 1902.
T. c. Mcconnell, Administrator, ct al.
Frank o. Keir.
Error from Jackson. County.
REVERSED.
Syllabus. BY the Court. Porter, J..
l. In a proceeding for the probate of a
will the burden rests upon the proponents
to establish its valid execution. Bpt this
rule is qualified by another which re-
quires only prima facie showing of the
validity of the will and its due execution
Where will is executed in proper form
by one who the subscribing witnesses teS-
tify was of sound mind and free from re
straint, prima facie showing is made suf-
ficient to admit the will to probate. In
such a case where the claim that the tes-
tator lacked testamentary capacity is
duct from which it is sought to raise a
presumption that he was of unsound mind
and involves as inquiry into his past life
it is the duty. of the court to admit the
will to probate, and leave these questions
to the more formal procedure of con-
test.
g. In proceedings for probating a will
there is no evidence of extreme weakness
of the testator arising from the near APP
proach of death, nor of lack of capacity
to understand what he was doing, the US
ual presumption of his knowledge of the
contents of a will formally signed by him
in the presence of witnesses is not over
come by the fact that one who assisted In
its preparation is beneficiary under its
terms.
4. Evidence examined and held suffi
cient prima facie showing that the tesla
tor knew the contents of the paper pur-
porting to be his will
5. The written statements of the sub
scribing witnesses made under oath at the
preliminary offer of probate are admissa-
BILE in evidence on the trial in the district
court upon appeal from proceedings to
probate a will
All the Justices concurring.
Attest: D. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
No. 1882.
Helen NJ. Brakefield

Helen NJ Brakefield
S. G. Shelton, ct al
Error from Kiowa County.
REVERSED.
Syllabus BY the Court. smith, j,
l. In the absence of a bill of exceptions
Section 27S of the Code prescribes the on
iy manner in which exceptions taken TO
the giving of instructions and to the re-
fusal to give requested instructions by a
district court to the jury can be made a
part of the record of such court and
brought to the attention of this court by
q transcript of such record.
g. A motion to amend the record in an
error case brought to this court on a
Transcript will not be sustained where no
bill of exceptions was allowed and signed
by the judge and no exceptions were not
ed on the instructions given or on the re-
quested instructions refused by the court,
No evidence can here be received of the
taking of such exceptions in lieu of the
signature of the judge.
g. On the trial of a civil action in which
the claim for relief is based upon allega-
lions of fraud, great latitude should be
given in the Introduction of evidence
tending to disclose the alleged fraud.
All the justices concurring.
true copy.
Attest: D. A. VALENTINE,
TSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
No. 15142.
David L. Gemmel

q No. 15142.
GSt David L. Gemmel
Edmond C.. Fletcher. -
Error from johnson County. -gz
AFFIRMED. 1900
Syllabus. By the Court. Graves j.
1. Where a husband holds the legal title
to real estate which belongs to his wife,
and to prevent the wife, when near the
end of her last Illness, from making a
will for the purpose of devising the real
estate to another, promises her to convey
the real estate to such other, and the
wife, relying upon such promises, does not
make the will, and dies on the next day,
the refusal of the husband to make the
conveyance constitutes such fraud as will
create a constructive trust which may be
enforced in an equitable action for that
purpose.
2. In such an action the trust will attach
to whatever property, the wife refrained
from devising on account of the promise
of the husband.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
ISeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
No. 1889.
Richard E. Nickel and Anna C. Nickel.


Nicholas Voge1.
Error from Atchison County.
81 ttf,a ~ AFFIRMED.
Syllabus. p BY the Court Graves J.
/. The jurisdiction of probate court in
this state, to appoint an administrator,
does not depend upon the existence of
debts due from the estate, nor upon the
applied to the payment of such debts.
2 The statute of limitations of this
state applies exclusively in all actions
pending in the courts of this state, except
as otherwise provided by the laws of this
state.
g.. In an action on a promissory note, the
bill of particulars alleged in the substance
that the note was made, executed and
delivered 81 Atchison, Kansas. The note
Acton, Cal, Dec. 1s, 1885
Six months after date we proimse to
pay to the order of Minnie Duehren, one
hundred eighty-nine dollars at her order,
value received, with interest at per cent
per annum from maturity until paid.
ANNA c. NICKEL
1t was further alleged that the payee re-
sided in Kansas at all times prior to her
death, which occurred July g. 1898. After
receiving the note she married Nicholas
was appointed administrator of her estate.
The makers of the note were absent from
the state of Kansas all the time after it's
delivery to payee except for the period
of about two weeks prior to the COM
mencement of the action which was begun
June %. 1904, by Nicholas Vogel as admin
istrator.
Held that demurrer to the pleading
was properly oVerruled.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13

No. 1916.
The Chicago Rock Island and Pacific
Railway Company
]. A. F Mosher
Error from Republic County.
AFFIRMED
The Chicago, Rock Island and Pacific
Railway Company
]. A. Mosher
Error from Republic County.
AFFIRMED,
Syllabus By the Court Johnston. G. j:
the injury and destruction of trees and
hedges By fire. alleged to have been neg
road a witness who has had experience
with trees and hedges and had observed
to be Guai1fied may testify as an expert
and give his opinion as to the effect of
fire upon trees and hedges,
2 In showing the extent of the loss
caused by the burning of growing trees
and hedges testimony of the value of such
trees and hedges as part of the land is
8. Where an application is. made for a
new trial after the term at which the YER
Section $40 of the Civil Code the court in
deciding upon the application. may con-
slider not only the newly. discovered evil
on the original trial before the jury.
T. To secure reyiew In the supreme ,n1 ne
-
there. should be Incorporated in the record
all of the evidence upon which the trial
court acted including that given upon the
question in the original trial.
8. In proceeding in error to review
such ruling the supreme court cannot ex-
anime or consider the evidence or other
matters in an earlier proceeding in error
although such prior proceeding had been
brought to review the Judgment rendered
in the original case.
All the Justices concurrfng.
A true copy.
Attest: d. A., VALENTINE
[SeaL1 Clerk Supreme Court
No 1916.
Nichols & Shepard Company, a corpora
ton,
VS..
W. P. Maxon and p. B. Maxon.
Error from Morris County.
AFFIRMED.
Syllabus. BY the Court. Porter, J..
l. A written contract for the sale of a
threshing machine contained general
warranty in the following words:
THAT said machinery Is well made, of
good materials, and with proper manage
ment. capable of doing well the work for
which the machines respectively are made
and solo,
Nothing in the contract showed the ma
ture of the machine or the purpose for
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
No. 1894.
c. W. Carson

No. 1874.
c. w. Carson
VS..
Mortimer r. Plat.
Error from Commanche County.
AFFIRMED.
Syllabus. BY the Court. Benson, ].
l. Where a tax deed has been recorded
more than five years, it will be presumed
that several subdivisions of land described
therein appearing to be contiguous, COM
prise one entire tract. This presumption
will prevail although the boundaries of
such lands are irregular or unusual.
q AS against the grantee of such tax
deed, in poss ession, it Is not error to re-
ject testimony offered to show that such
a body of land was patented, owned, and
conveyed in three distinct tracts.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
TSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
LEGAL.
SUPREME COURT SYLLABI.
No. 145S4.
c. s. Fossett

VS..
The. Rock Island Lumber & Manufactur-
ing Company and w. L Murray
Error from Sumner County
REVERSED.
i When a person has complied SO Tar a
ne can with the provisions of ap orol-
nance requiring him to pay an occupation
tax, and has rendered the Zee ana oe
manded of the proper officer a Incense, all1 =
the license is refused through no fault OF
his. 1t is not unlawful for him, without a
license, to engage in an occupation other-
wise lawful and which requires no super
vision or regulation. ia
2 In a suit against the owner OF a puiidt
ing to enforce a subcontractor' lien, EVIL
dence of payments made by the owner 10
other subcontractors during the 90 days
within which they were entitled TO OUT ulo
not file liens is admissible. and Where lne
cost exceeds the contract price the owner
the extent of the pro rata amounts Wnlcn
the other subcontractors would have peeh
entitled to If their liens had been fiied
8. In q suit by a subcontractor 10 en-
force a lien against the owner OF a pulIo,,
ing, the owner may offset any actuai
by the contractors failure to compIete
the building in time, provided the GAM
ages are such as may be said 10 nave
been in the contemplation OF the parlies
when the contract was made.
Mason, J., Smith, j., Graves, d. ana
Benson J., concurring.
Johnston, c. j, dissenting from second
and third paragraphs of SYLLABUS ana cur
responding portions of opinion
Burch, J., dissenting from second para
graph and corresponding portion OF opin-
lon
Attest: D. A VALENTINE,
TSeaI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13
No. 15443.
Samuel Baughman
Warranto.

| SdHlu6l Iodu5ihldh
C. S. Nation.
Original Action IN Quo Warranto.
DISMISSED.
| Syllabus. BY the Court. Benson, j.
l. A person in the undisturbed posses
e efH Of che cannof an
| ton in the nature of quo warranto to Dust
the judge of the, city court of Chanute.
of the act esta blishing that court (Chap.
17s, Laws of 1900 merely because such per
son suffers loss Of fees, incident to the
ordinances in the new court
q For the reasons stated above the con-
stitutionality of the act referred to. is not
All the Justices concurring.
A true copy.
Attest. d. A VALENTINE,
TSeal1 Clerk Supreme Court.
No. 154e7.
Bernard Hickert
]. A. Van Doren as County Treasurer OF
Cheyenne County, Kansas. and w. 8.
Booth, as County Clerk of Cheyenne
Original Proceedings in Mandamus.
Peremptory Writ Allowed.
i. An attempted resale of school lands
have not been legally forfeited is without
authority of law and is void
2 One who purchased =. a certificate arIs OF
ty OFFICER in good faith supposing such
lands were legally offered for sale, but
which he afterwards learned had prev
iously been sold and to which the rights
of the former purchaser or his assignee
chase an Assignment of the former certif-
cate and. ignoring the void sale, may pro-
coed to perfect his rights to the land un-
der such certificate.
s. In such case 1t is the duty Of the coun-
ty treasurer and county clerk to receive
all moneys rendered as payment under
the assigned certificate by the assignee
thereof which might properly have been
paid by the assignor and also to accord to
such assignee all rights which have there.
tofore might have been properly accorded
to the assignor.
| All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
ISeaI.1 Clerk Supreme Court,
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-11-13

No. I4736.
The State of Kansas
VS..
Chod Thomas.
Appeal from Cowley County
MOTION DENIED.
No. 1882
The State of Kansas
VS..
Arthur Schmidt.
Appeal from Cowley County.
MOTION DENIED.
No. 1861.
The State of Kansas
Frank p. Plamondon.
Appeal from Shawnee County
MOTION DENIED.
No. 1904.
The State of Kansas
vs..
Oscar Schmidt.
Appeal from Cowiey County.
MOTION DENIED.
No. 1888
The State of Kansas
VS..
Frank Former ct al.
Appeal from Miami County,
MOTION DENIED.
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