davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal., 1908-11-11
No. 1858.
School District No. 116. ETC., ct al.

No. 1858,
School District No. 116. etc, ct al
VS..
William Wolf ct al.
Error from Sedgwick County.
AFFIRMED.
Syllabus. BY the Court. Smith, ].
1. Although the statute contemplates
the filing of a petition with a county
superintendent for the change of bound
aries of a school district as a basis for
the. issuance by him of a notice setting
a time for hearing upon the requested
change, vet where verbal request is
made for the change and proper notice is
given. the interested parties appear, the
order is made, appeal is taken to the
board of county commissioners and the
order is affirmed. the proceeding is only
irregular but is not void.
2. Such an order so made and affirmed
is final and is not subject to collateral
attack in an action for Injunction.
g. Upon the detachment of the territory,
within which a school district officer re-
sides from the school district of which
he fs an officer. his office Immediately be-
comes vacant ipso facto and may be filled
A. Quo warranto and not Injunction is
the proper remedy for an illegal holding
of a public office.
All the Justices concurring.
A true copy.
Attest; D. A. VALENTINE,
FSeal,1 Clerk Supreme Court
The Topeka state journal., 1908-11-11
No. 1903.
The City of Kinsley

J. N. Dyerly.
Appeal from Edwards County.
REVERSED.
SYLLABUS. By the Court. Porter. j.
l. In prosecution for the violation of
a city ordinance imposing a license tax
upon persons soliciting orders for the sale
or goods where it is shown that the de-
fendant is the agent of a merchant of an
other state and carries samples of goods
and soHcitS orders which he sends to his
PRINCIPAL for approval, the mere fact that
the principal after accepting the order
ships the goods to the same agent with
authority to deliver them to the purchaser
and collect the price will not prevent the
transaction from being interstate COM
meree.
The right of a merchant of another
state to sell his goods in this state carries
with re right to deliver them and to
employ for that purpose any agency. he
may deem proper. provided that at no time
before the delivery the goods become so
minEled with the common mass of prop
erty mere as to deprive the transaction
of its interstate features.
g. In a case like that referred to in the
first paragraph if there be a doubt as to
whether the sale was completed by the
acceptance of the orders by the principal
ana his shipping the goods, the contrary
cannot be assumed in order to sustain a
conviction. The prosecution must estab-
uSh it's case.
All the justices concurring.
"A true copy.
Attest: D. A VALENTINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal., 1908-11-11
No. 15.517.
J. ShonOn

Spring River Power Company
Error from Cherokee County t-
REVERSED.
Syllabus BY the Court Graves, J
S. commenced an action to recover dam,
ages against a water power company
charging it with having damned up
river. thereby flooding and destroying val.
liable mines located on lands of which
S. claimed to be the owner Upon the trfa
it appeared that S. was the lessee only OF
said lands. The court thereupon for thai
reason. dismissed the action, holding thai
a lessee of land could not maintain such
an action. Held error.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE
TSeal1 Clerk Supreme Court
The Topeka state journal., 1908-11-11
No. 1864
The Nelson Vitrified Brick Compan!

No. 16.694.
The Nelson Vitrified Brick Company
VS..
Mrs. Isaac w. Mussulman.
Error from Labette County.
AFFIRMED.
Syllabus BY the Court. Benson, j..
An employee of a brick manufacturer
was killed by a wall in course of con-
struction falling upon him; his widow
sued to recover damages, alleging neglig-
ence of the defendant in the Construction
of the wall whereby the. place in which
he worked became unsafe. The defense
was based mainly UPON an alleged as
sumption of risk by the deceased @ ,o.,1Il EN- n
ence. The jury found for the ,plaintiff
upon both Of these ma matters. -, Held; ID, n
proved by the district court If SUSTAINED I
by competent evidence must stand; -.
2 That the findings were sustained by
g. That a demurrer to the evidence was
properly overruled.
Al the Justices Goncurring.
A true copy. .-.
Attest: D. A. VALENTINE,
ISeaL1 Clerk Supreme Court
The Topeka state journal., 1908-11-11

U. S. court house and postoffice, Topeka,
Kansas. Office of custodian, November z,
this office until o'clock p. m. on the
24th day of November 1903, and then
opened, for new floors, new mailing plat
accordance with drawing and specifica-
tion. copies of which may be obtained
tOdian.
The Topeka state journal., 1908-11-11
No. 1851.
A. D. Michner ct ux

James Ford.
Error from Hamilton County.
AFFIRMED
Syllabus BY the Court. Graves, J.
1. Where a delinquent tax sale is held
on September f. 1900. and the final redemp-
ton notice states that lands sold at that
sale must be redeemed on or before Sep
tember 4. 1908. or they will be decided to
the asers-such notice gives full
three years after the sale for redemption
and is not void.
2. Where a tax deed recites the amount
which the grantee in the deed paid for the
certificate. giving the date; and also
states the amount of subsequent taxes
paid, without giving the date Of payment; /;
and the final redemption notice gives as
the amount necessary to redeem. sum
claimed to be in excess of the proper
amount-the deed will not be deemed in
valid for that reason If the amount of
these payments, with interest computed
on each sum from the earliest date at
which it could have been legally paid,
equals or exceeds the sum stated in such
notice.
8. Where the district court, after the
trial of a case without a jury, takes 1t
under advisement. and one of the parties
on the next day when court is in session,
makes application to introduce further
testimony which is refused for the reason
that the evidence should have been pre-
sented at the proper time. this court can
not say that such action of the court is
an abuse of discretion. and erroneous.
All the Justices concuFring.
Attest: D. A. VALENTINE,
CSeall Clerk Supreme Court.
The Topeka state journal., 1908-11-11
No. 15.442.
NJ. L. George and I. H. McQuilkin


NJ. L. George and I. H. McQuilkin
Joe Lane and F. H. Leonard.
Error from Shawnee County.
REVERSED.
Syllabus. BY the Court. Benson, j
/. A party entitled to recover on the
breach of a contract should be allowed
and proximate result of the breach.
3 Where G. and NJ. agree to transfer
a stock of goods to L. and L. in consider
alton of the conveyance to them of a
farm. and to furnish a buyer for one
half interest in the goods for certain
conveyance of the farm have been duly
made. but G.. and NJ. have failed to furnish
such buyer. the measure of damages for
such default is the difference between the
market value of such one-half interest
and the sum for which it was to have
agreed. together with interest on the
amount of such difference .s..-
3. The amount received upon the sale
of such one-half interest at an auction
fairly advertised and conducted, of which
the defendants had notice. is some evil
dence of such value. but is not conclusive,
and the defendants had the right to offer
was greater than the amount so received.
f. A statement or promise made by Il.
and L. after the conveyance and transfer
had been completed without any new con-
sideration. purporting to waive the obli-
CATION of NJ and G. to find such pItr-
chaser and which was not acted upon to
their loss or injury. is inefectual to re-
lieVe them from liability.
All the Justices concurring
A true copy.
Attest: D. A. VALENTINE,
[SeaL1 Clerk Supreme Court.
The Topeka state journal., 1908-11-11
No. 1888.
The Farmers Alliance Insurance Com
pany


Samuel Ferguson.
Error from Woodson County.
AFFIRMED.
Syllabus. BY the Court. Benson, J.
!. Where an insurer bases its refusal
to pay a loss entirely upon a forfeiture
caused by the failure of the insured to
comply with a particular condition OF the
policy. it cannot. when sued for the loss
maintain "a defense founded upon another
alleged forfeiture for violation OF other
conditions. not referred to in such refuSal,
and of which it had knowledge when the
refusal was made.
2 A waiver Of the forfeitures alleged
from the breach of conditions not referred
to In such refusal. may in the cireum-
stances stated be properly found by
Jury. when such waiver is an issue upon
the trial j.
g. Making and collecting an assessment
upon The premium note given for fnsur-
ance after the eKaninati ton and report OF
an adiuster showing a forfeiture for yio-
lation of a condition in the policy had
been made. and endorsing the payment or
such assessment as credit upon the note,
after consideration of the report or the
adiuster by the executive board OF the
company and after knowledge of the cir
cumstances upon which such forfeiture
is claimed. were facts from which the
Jury could properly find that such forfei-
ture was waived.
All the justices concurrfng.
A true copy. ---...
TSeaLl Clerk Supreme Court.
The Topeka state journal., 1908-11-11
No. is. 62S.
The Triple Tie Benefit Association
VS..

NO. 1858.
The Triple Tie Benefit Association
VS..
A J. Wood
Error from Bourbon County.
AFFIRMED.
Syllabus. BY the Court. Benson, J.
1. A fraternal benefit association will
not be permitted to assert a forfeiture be
cause assessments were not paid at the
time stated in the bylaws, where by the
adoption Of a custom or the course Of its
honestly 10 believe that the assessments
may be paid and will be received at times
other than those specified in the rules.
CForesters VS.. Hollis. 70 Kan. ~
2. The defendant Joined in an issue of
fact upon an imperfect allegation of the
existence of such custom without NOV
ing for a more definite statement, and
the question thus presented was fully tried
upon the merits: Held. that the defendant
cannot Justly complain of the fnsufficiency
of the petition to present an issue in which
it thus voluntarily Joined
All the Justices concurring.
A true copy. ...z-
Attest: D. A. VALENTINE,
LSeal1 Clerk Supreme Court.
The Topeka state journal., 1908-11-11
No. 1883.
The Madison Bank.

VS..
w. NJ. Price and W. s. PaIlis.
Error from Greenwood County
LEAVE TO FILE COUNTERPART
STRACT GRANTED.
Syllabus BY the Court. Burch. j.
/. The duty of preparing a sufficient
ABSTRACT devolVeS upon the plaintiff in err
ror. The provision of rule 10a exempting
him from the necessity of abstracting ali
evidence to support claim on his part
that 1t does not show or tend to show q
certain fact is an exception in his favor
and he should take care not to abuse the
privilege which it accords him.
z The provision of rule 10a referred to
does not restrict the claim of a plaintiff
In error to one fact finding, and he
may, in good faith and in a proper case
make the claim that several of a large
number of essential facts or findings OF
fact are. unsupported by the evidence
without being obliged to abstract all the
evidence to support It.
g. In all except extreme cases of nall
pable bad faith the defendant in error
Should meet a claim of the character de-
scribed by promptly furnishing a counter
abstract. If it should finally appear that
the claim or a substantial portion of IL
was not reasonably well founded, the cost
of the counter abstract, or so much of AZ
as was unnecessarily required NAV be
taxed to the plaintiff in error.
All the Justices concurring
a true copy.
Attest: D. A. VALENTINE,
lSeaLI clerk supreme Court
The Topeka state journal., 1908-11-11
TEG.ATE


onfcials prescribed by statute and have
been so kept as to render it improbable
that they could have been tanpered with
but it is not essential that it should be
Sible.
All the justices concurring.
A true copy.
Attest: d. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal., 1908-11-11
70 WHOM IT MAY CONCERN:

TO WHOM IT MAY CONCERN:
You viii take notice that my petition
for permit to sell Intoxicating liquors.
according to law. at my drug store at No
800 West 18th St.. in the Third ward of
the city of Topeka. Shawnee county, Kan
sas. is now on file in the office of the pro-
bate nudge of said. county, and that said
petition will be heard before the probate
judge of said county at his office in the
court house in the city of Topeka on
Thursday. the 26th day of November. A
ID. 1908. at 10 O'Clock a. m.
CHAS. E. JOSLINs Applicant
The Topeka state journal., 1908-11-11
NOTICE.

TO WHOM IT MAY CONCERN:
You will take notice that my petition
for a permit to sell intoxicating liquors
at my drug store at No. S03 Kansas ave-
nue.. in the Third ward of the city of To-
peka, Shawnee county, Kansas is now
on file in the office OF the probate judge
will be heard before the probate Judge Of
said county at his office in the court house
in the city Of Topeka on Thursday, the
18th day of November. 1908 at 10 O'clock
a m. A. p. ROSSER-
The Topeka state journal., 1908-11-11
LF'irst published in The Topeka State
journal October 81. 1901
SHERIFFS SALE.
Case No. "a, ,991.

Case No. 1881. .'s -
Brown. John sherman Grice,-. Elmer A.
Grice. Mary E, Fouts. Effie E. Hanway
and Eileen Grice. born Eileen Sweeney.
defendants. f.f q
BY virtue Of an order OF sale issued to
me. out of said district court. in the above
entitled action. / will on Tuesday, the ist
day of December, 1908, at II 100 o'clock a. m.
of said day. at the east front door OF the
court house in the city of Topeka, in the
countv of Shawnee. in the state of Kan
sas. offer at public sale, and sell to the
highest bidder. for cash in hand, all the
following described real estate. to-wit (;
The undivided one-half Of lots 81 and 80
on Sixth avenue west: lots SO and IS on
half of No. 225 on Western avenue, said
last described tract subject to mort
gage of $500. and all of said real estate
situated in the city of Topeka, Shawnee
county. Kansas.
The above described real estate is taken
as the property of said plaintiff and de-
PENDANTS. and is directed by said order of
sale to be sold and will be sold subject
to appraisement, and is ordered not to be
sold for less than two-thirds of said ap-
praised value.
J. NJ. WILKERSON,
Sheriff of Shawnee County, Kan.
By JONATHAN d. NORTON,
Under Sheriff.
EDWIN b. McKEEVER,
Attorney for Plaintiff.
The Topeka state journal., 1908-11-11
No. 16,026.
The State of. Kansas.


Appeal from Sedgwick County.
REVERSED.
Syllabus By the Court. Graves, J.
l. Before the testimony of a witness
given at a former trial can be read in evil
dence by the state against a defendant in
criminal prosecution over his objection,
1t must be made to appear that the wit
ness who gave such testimony can not by
the exercise of reasonable diligence. be
produced.
2. In such a case, the mere production
of subpoena which has been issued for
the absent witness, with a return of non
est thereon, without any further showing
as to the residence or whereabouts of
such witness, or of the extent of the
search made for him, is insufficient, and
the introduction of such evidence under
such circumstances is error.
8. In a criminal case, the defendant
produced a witness to establish his good
character, who, in chief testified that he
was acquainted with the defendants gem
eral reputation for honesty and integrity
in the community where he resided and
that such reputation was good; that he
had been acquainted with the defendant
six or seven years during which time he
had worked for the witness; and on
cross-examination, the witness further
stated that the only persons he had heard
speak about the character of the defend
ants were members of his own family; he
further said, 81 don't know as l ever
heard it questioned that it ever came up
any more than any other gentleman s."
The court struck out the evidence of the
witness on the ground that 1t did not tend
to establish a general reputation. HELD
error.
All the justices concurring.
Attest: D. A. VALENTINE,
ISeaL1 Clerk Supreme Court
The Topeka state journal., 1908-11-11
No. Is. 307.
Mary Roberts

The City of St Marys
Error from Pottawatomie County
REVERSED.
Syllabus By the Court Renso1 7
It is general rule that persons dealing
with the officers of a municipal corpora
tlon must ascertain the nature and extent
of their authority, but in matters which
are the proper subjects of municipal ac-
tion. where there is no provision of law
recurring that such authority shall he
given by formal action of the governing
6odY- It NAV be shown by course of con-
duct which induces others honestly TO as
sumo and rely upon its existence = I
All the justices concurring
A true copy.
Attest: d A VALENTINE
ISeal1 Clerk Supreme Court
The Topeka state journal., 1908-11-11
No. Is, 1886.
C. c. Coleman.
vs.
F. P MacLennan.
Error from Sha wT1eo Co,,0tr-


AFFIRMED.
syllabus. BY the Court Burch 7
l. II the publisher of a newspaper cir
cuiated throughout the state publish an
article reciting facts and making com
ment relating to the official conduct and
character of a state officer, who is a can
didate for reelection, for the sole mir
pose of giving to the people of the state
what he honestly believes to be true in
formation, and for the sole purpose of en-
abl1ng the voters to cast their ballots
more tntelligently, and the whole thing is
done in good faith, the publication is priv
Heged although the matters contained in
the article may be untrue in fact and de
rogatory to the character of the candi
date.
2 Generally, publication should he no
wider than the moral or social duty to
publish. If it be designed1y or llnneces-
sarily or negligently excessive privileges
Is lost. But If a state newspaper pub
lished primarily for a state constituency
have small circulation elsewhere, IT is
not deprived of its privilege in the dis
because of that fact. -
g. If on the trial of a suit for libel the
Jury should find specially from the evi-
dence that the plaintiff suffered no dam
ages from the publication complained OF
1t will not be presumed that the finding
was induced by Instructions regarding
particular questions in the case not re-
lated to that of damages: and the ques-
tion whether such instructions nisstate
the law becomes immaterial because thew
could not affect the plaintiffs substantial
rights
All the Justices concurring.
A true copy.
Attest; D. A. VALENTINE,
ISeaLI Clerk Supreme Court
The Topeka state journal., 1908-11-11
No. Is, 52S.
Ed Anderson.
L. f. Walter, Administrator.
Error from Kinpr1ap CoI1u+r

VS..
L. E. Walter, Administrator
Error from Kingman County
JUDGMENT MODIFIED
syllabus BY the Court. Mason, ].
The appointment by the probate
court of county of this state of an ad-
ministrator of the estate of one who at
me time OF his death was an inhabitant
and resident of another county thereof
is wholly void. and a release Of a mort.
gage belonging to the estate executed by
one so appointed as administrator under
color of an order of such court is without
legal effect
Where upon the death fntestate of
the owner of real estate mortgage. an
order is made by the probate court ap-
pointing his widow as administrators and
with her consent further order is made
that she release such mortgage on the
ground that at the time of It's execution
the parties agreed that it was not to be
enforced after his death, although suoh
proceedings prove utterly void because
taken in the wrong county, she cannot
after undertaking to release such mort
gage on the record as administrative, as
sert right in her own behalf thereunder
against one who purchases the land COW
The Topeka state journal., 1908-11-11
LEGAL

@<s~--~~~~SrS~.--~~~--@~
cred thereby in reliance upon such trans
action.
All the Justices concurring.
Attest: d. A. VALENTINE,
tSeaL1 Clerk Supreme Court.
The Topeka state journal., 1908-11-11

u
portnnity to contest them must be al
lowed
5. 1t is not necessarily fatal to a spectal
assessment statute that it does not con-
tain an express provision relating to
notice and a hearing. When the terms of
the statute permit, such provision may
be implied.
g.. The legislature may lawfully pre-
scribe the front-foot rule as a reasonable
method of apportioning the benefits ac-
cruing to real estate from IocaEinprove-
ment. If palpable injustice result from
the application of that rule equity may
interfere, but unless it be patent and OBJ
yious that the burden imposed Is entirely
disproportionate to benefits received the
claimed excess will not be -enjoined.
z. Chapter 1872 of the laws of 1903 pro-
viding for the sprinkling of streets in
cities of the first and second classes and
authorizing such cities to levy a tax
therefor, delegates certain essential feat
ures of the proceeding to class of prop
erty owners in manner excluding
notice and a hearing to others interested.
Therefore it is unconstitutional and void.
8. The question whether street sprink-
ling benefits abutting real estate in the
sense that it may be specially assessed
to defray the cost is not decided.
All the justices concurring.
A true copy.
Attest: d A. VALENTINE
[SeaL1 Clerk Supreme Court
The Topeka state journal., 1908-11-11
LEGAL
NOO
No. Is. .S46.
Robert P. Ray
Charles n. Miller ct al.

vs.
Charles NJ Miller ct al.
original Proceedings in Quo Warranto.
Writ Denied.
syllabus. BY the Court. Burch, J.
charges of fraud. bad faith and disre-
gard OF law in denying an application for
appointment to an office under the Vet
eFans< preference Law must be proved by
evidence of facts which are inconsistent
with official pFobity. The inquiry starts
with the presumption that public officers
do their duty. that they act fairly, from
good motives. and with the purpose and
intention of obeying the law. Suspicion.
surmise. insinuation and innuendo are not
enough to overthrow this presumption.
All the Justices eoncurring.
A true copy.
Attest: D. A VALENTINE
lSeal1 Clerk Supreme Court.
The Topeka state journal., 1908-11-11
IFirst published in The Topeka State
Journal October q. 1901
CITATION.


The United States VS.. Forty-one Boxes OF
''Muco-Solvent.
Under and in pursuance OF an order and
due and regular process in the above en-
titled cause, did on the 9th day of Oc-
tober. 1905. Eeize the following described
property. to-wit: Forty-one boxes of
''Muco-Solvent' each labeled as follows:
"Muco-So1vent Cures Group, Whooping
Cough. Diphtheria; all throat troubles
and catarrhal disorders" the same being
in the possession of f. A. Gatlin, doing
business as the Gatlln Drug company, To-
peka, Kansas, which has heretofore been
shipped by the HesSig- Ellis Drug company
from the city of Memphis in the state of
Tennessee, to said Gatlin Drug company,
1t being claimed that said boxes are mis-
branded within the meaning of the Food
and Drugs Act. approved June 30, 1906, and
the same are now in my possession, and
I do hereby give notice generally unto all
persons having or pretending to have any
right. title or interest in said property to
appear before said court in the city of To-
peka, Kansas, in said district and division,
on the sd day of November 1908, at ten
O'Clock a. M. then and there to make
known their claims and allegations in
said matters.
Dated at Topeka Kansas, this 9th day
of October. 1905
WILLIAM H MACKEY, JR.,
United States Marshal for the District OF
BY B. F. FLENNIKEN,
Chief Office Deputy.
The Topeka state journal., 1908-11-11
. No. Is. S96.
The State of Kansas.

No. Is, 896.
The State Of Kansas.
Bert Tawney.
Appeal from Franklin County.
REVERSED.
Syllabus. BY the Court. Porter J..
The defendant in a criminal action was
charged with larceny and was a material
witness in his own behalf. At the trial
the state attacked his reputation for
truth and veracity. The defendant then
called witnesses and offered to prove by
them that they knew his character for
truth and veracity and that 1t was good.
An objection was sustained to the testi-
nony on. the. ground that his .''reputa-
tion'' and not his character" for truth
and veracity was involved. Held. that
inasmuch as the distinction between
reputation and. character. is not COM
monty understood by witnesses, and the
terms are frequently used without dis
elimination both by the, courts and law
makers, it was error to exclude the testi-
money. Under the circumstances of this
case held pFejudicial error.
Ali the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
(Seal.1 Clerk Supreme Court.