The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-10-13

lSeal] Clerk Supreme Court.
No. 1527
w. M. Glenn and H. G. Madara
Jesse B. Stewart
Error from Greeley County.
On petition for rehearing. Judgment re-
versed.
syllabus. BY the Court Mason. ].
Even in the case of tax deed less
than five years old. in the absence of any
showing as to the facts, the payments Of
subsequent taxes made by the holder of
the certificate must be presumed to have
been made at any date consistent with the
recitals of the deed that would support
its validity. and If necessary for that pur
pose it must also be presumed that the
publications of the notice of sale and re-
demption notice were made for less than
the rates named in the statute.
All the Justices concurr1ng.
Attest: D. A. VALENTINE,
lSeal1 Clerk Supreme Court.
w. L Wood. A M0- ,Ss10; and carr,.
NJ. Fischer
VS..
Sarah M. Sheidley.
Error from Wyandotte County District
AFFIRMED.
Syllabus. By the Court Mason, J.
Where plaintiff sues upon a note. hav-
ing the legal title thereto but no beneficial
interest therein. and upon the death of the
real owner executes an assignment of the
cause of action to his Iegatee. and there
after such plaintiff dies and the action is
revived and prosecuted to judgment in
the name of his administrator. no revivor
being had in the name of his assignee, the
proceeds of such judgment when collected
by the administrator do not become a
held by him in trust for such assignee.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
tSeaL1 Clerk Supreme Court.
No. 1885.
Perry T. Kirk. ct al
]. H. Andrews
Error from Logan County.
AFFIRMED
Syllabus. BY the Court. Smith, ].
l. In an action to recover upon a prom
cure the payment thereof. the limitation
OF time for bringing the action is pre-,
Statutes of 1901. and section 4444 is not
applicable thereto.
p In such action the same limitation
applies to each branch of the case and if
the action is maiutainable upon the note
it is maintainable upon the mortgage.
All the Justices concurring.
Attest: D. A. VALENTINE,
tSeal1 Clerk Supreme Court.
No. 1886.
James o. Benton
May Benton.
Error from Shawnee County.
On petition for rehearing. Petition denied.
syllabus. BY the, Court. Mason. j.
tation of part of a will reading, IT make
the following disposition of my property.
l.. Eight thousand dollars to wife, all
of which is to be held in trust by J. o.
and H. H. Benton without bohd-they to
pay heirs such rate of interest shall be
agreed upon. until children become of
age-and she remains unmarried-in such
case money shall fall to my legal heirs .
aTrIiUqlpnt fO-Sin she a-D .,
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
tSeall Clerk Supreme Court.
The State of Kansas ex rel M. A Bender.
J. H. Johnston.
Appeal from Jackson County.
AFFIRMED.
Syllabus. BY the Court. Smith, j.
I. While often used anonymously, the
straininr order are nToperiv disti au
as follows: A restraining order is effec-
tive only until an application for an in
junction shall be heard; a temporary in
until the trial of the action in which it is
issued. The effect, and not the name by
which an order may be called determines
to which of the classes it properly belongs.
2. An order by probate judge made in
the absence of the district judge from the
county and in an action pending or being
commenced in the district court, which
order is by its terms operative until the
district court or the Judge thereof shall
act in the matter. is a restraining order
and not a temporary Injunction
8. Chapter 123 of the Laws of 1901 is
indirect contempt is not of right entitled
All the Justices concurring.
| Attest: d. A. VALENTINE.
| (SeaE1 Clerk Supreme Court.
No 1852
The State of Kansas
Robert Pigg, ct al.
Appeal from Shawnee County.
AFFIRMED.
| Syllabus. By the Court Porter, j.
A Manhattan cocktail is generally and
| popularity known as an intoxicating liquor
| and no proof of its intoxicating character
is necessary in prosecutions under the
AL the Justices concurring.
| A true copy.
Attest: D. A. VALENTINE,
| ISeaL] Clerk Supreme Court
The Chicago. Rock Island & Pacific Rail-
way Company
2. G. Lacy.
Error from Shawnee County.
REVERSED.
! Syllabus. BY the Court. Porter, j.
caboose of a freight train with the per-
| mission of the conductor. but without
| having paid or offered to pay any fare,
and under such circumstances that the
| railway company owed him no duty ex-
| cept not to injure him wilfully or wanton-
| ly. While the train to which the caboose
| was attached was standing at station in
| the daytime a freight train following ran
| into the caboose demolishing it, and the
| deceased received injuries from which he
died. In an action against the railway
| company to recover for his wrongful
death on the ground that the injury was
caused by the reckless and wanton negli-
gence of the company's employees, held:
% That the fact that a collision occur
red is not prima facie evidence that II
| was caused by reckless or wanton negli-
gence In such a case before the railway
| company can be held liable there must be
-fr 1zf1 in ovid