davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
LEGAL.
SUPREME COURT SYLLAB|.
No. IS, 064.
The City of Atchison
L. Friend.
Error from Atchison County.

L. Friend.
Error from Atchison County.
MODIFIED.
Syllabus. By the Court. Johnston. =. >.
i. Where special assessments were lev
led in 1886 upon abutting property, TO pay
OF the first class for which special assess,
: ment bonds were issued by the Guy anu
which were not paid when due put re
n<ained delinquent for a number OF YEAS
and where an action for the foreclosure y.
the tax liens against the property was
brought under Chapter 1872 of the Laws o.
1901, under which the liens were forecioseo,
the property sold and the .proportion OF !
the proceeds of the sale paid over to tne
city treasurer and where the city, upon
demand refused to pay such proceeds to
the contractor an action therefor against
the city may be maintained
2. After the special assessments, regu-
larly made upon several lots to pay Tor
the street Improvement and the special as,
easement bonds issued by the city, M n u q
been in default for period OF years 5he
mayor and council of the city passed d
resolution requesting the board OF county
commissioners to authorize the reoenip,
ton Of the lots upon the payment OF d
small sum and when a certain pulloIns
was erected thereon. The board acted
ton of the lots substantially on the condl-
tons named in the resolution. In an &C
ton against the city to recover the
amount of the assessments 1t is held tnat,
as the board of county commissioners was
vested with the power to order a compro-
mise and redemption, for such an amount
DIS IL ueeIleQ DeSt anu as the OoHio ="
not bound to heed the advice or request
of the city officers, the action of the CITY
officers in passing the resolution request
ing the redemption did not affect the pow
er or action of the board nor make the
city liable to the contractor for the special
assessments.
3. Where the city purchased several of
the lots which had been assessed for the
Improvement to be used in connection
with its fire department and thereafter
appropriated them to that public use, thus
making 1t impossible to enforce the tax
liens arising upon the special assessments
and the special assessment bonds issued
by the city, it became absolutely liable to
the contractor for the amount of the as
sessment bonds.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
lSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
No. .l5.741.
The State OF Kansas

~~--~~'s&N'
- James Smith.
Appeal from Wyandotte County
Court OF; Common Pleas
REVERSED.
syllabus. BY the Court. Graves
e, Z. nance is material and important
clement IN the crime of murder. and every
4teIendant charged with, that offense has
On one n l1gnt 70 have the question of whether
OF not the act was actuated by malice.
suDmltted to the jury whenever there is
Ss .f from which its absence can be
~, =; Where defendant is being tried for
lrruruer IN the first degree, and the cir
S shnas. ices surrounding the homicide are
SHOWN snow from which it appears that the ac-
~, tlreo the fatal shot Immediately at
.er oe1ng violently assaulted by the de-
ceased, who was. when the shot was fired,
ap ds approaching the accused with
q oeaoIy weapon. it is error for the court
10 cnarge the jury that proof of an I'M
JusIidlaDle killing is sufficient evidence of
A true copy.
Hf..esI: D. A. VALENTINE.
tSe"AJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
No. 1881.
John Davis and Mary Davis

--t No. 1881.
John Davis and Mary Davis
VS..
The Chautauqua Oil and Gas Company.
Error from Chautauqua County.
AFFIRMED.
Syllabus. By the Court. Burch J.
An oil and gas lease interpreted and
held not to provide for a forfeiture on ac-
count of the non-payment Of stipulated
royalties.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
ISeaL] Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
No. Is. 500.
]. c. Hopper

r. M. Nation as auditor of the State Of
Original Proceeding in Mandamus.
WRIT DENIED.
Syllabus BY the Court. Mason, J..
/. In the provisions of its statute 1sec;
ed Separately prior to its being exposed
to sale, the phrase quoted refers to the
smallest subdivision under the congress
cept where for special reasons lots are
plated in more or less irregular shape, as
in the case Of fractional secsions) t guarter-
the sale Of school land (sec. 6s46. Gen.
Stat SOD that ~ iaa ae NAY os
intendent of public instruction ana ap.
praisers may deem best, implies tnae
subdiyision, and the context fixes the lin
it at forty acre tracts.
g. One who claims to have purenasea
acres, must show, in order to enforce a
right as such purchaser, tnat IL was SO
egD dbie ny and the
4. The decision of the prooate 1uaIss
that one who has petitioned as settler r
Is eon ehi'e only upon those matters as to
which the court il required to nndDInat
is as to the facts stated In the petltlon,
go as the petition is not required to show
ana sGu hd of the land by the statutory
tribunal having Jurisdiction thereof sucn
decision OF the court, WnSn iuauc VII -
snect to tracts Of less than forty acres;
woes not determine that sucn SUBDIVISION
has been duly authorized.
5. A preference right to the purchase OF
school land cannot be acquired by setting
The lessee of school land cannot ter
inmate his lease and thereby throw the
land open to settlement oy any aca OF a ma
Of county commissioners:
I. The acceptance by the county h, tr ,anS
, III color Of a void sale does not i'm
nose the obligation upon the state TO Is
sue a patent therefor.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
LEGAL

the representatives of the railway COM
pany, In charge of the live stock business
at the place of delivery, were present and
rived and then directed what disposition
should be made Of them the purpose of
plished and no further notice was essen
tial to a recovery.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
LSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
LEGAL.

il Z Nnder the ex-soldiers preferences law.
e eonr and when the appointing power
ff urnios such proof of Competency as is
s urhisneo oy the applicant together with
s t;o ana such other pertinent informa-
d d,ui as may be acquired and in good faith
c ce ,,t as to the competency Of the appli-
cant, such decision is final
All the justices eoncurring.
TS.eS1' D A. VALENTINE.
l0eaLI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
No. Is, 535.
George J. Christisen


Edwin Bartlett and Mike Nall.
Error from Hodgeman County.
AFFIRMED.
Syllabus. BY the Court. Benson. ]
1. A settlement upon school land to give
a right of purchase, under the provisions
of section 6341 of the General Statutes of
1901, involves not only the outward, ply
steal and visible acts necessary to fits ac-
complishment, but also an intention to
permanently establish the dwelling and
residence of the settler thereon, and to
do all the things in good faith required by
the statute.
q Where the findings of fact do not
specifically state which one of several
claimants first settled upon the tract of
school land in controversy, the general
finding included in the judgment against
one of them, necessarily determines the
fact against him where 1t is essential to
support the Judgment and it is not in con-
f1ict with the special findings.
All the Justices concurring.
A true copy. g
Attest: D. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
D. A. VALENTINE,
Clerk Supreme Court.
No. Is, 548.
r. L. Henderson, ct al.

No. 1554S.
r. L. Henderson, ct al.
VS..
J. S. Belden.
Error from Wyandotte County.
Court of Common Pleas.
AFFIRMED.
Syllabus. BY the Court. Mason, ].
In view of sections "a and 20 of the act
relating to wills (sections 1861 and 1856
Gen. Stat 1sol), the former providing that
authenticated copies of Wills executed and
proved according to the laws of another
state may be admitted to record in the
probate court of any county of this state
where any property to which it relates is
situated, and shall thereupon have the
same validity as domestic wills: and the
latter that no will shall be effectual to
pass real or personal estate unless it shall
have been duly admitted to probate or
recorded as provided in said act a petition
in ejectment is .demurrable which bases
the plaintiffs right to recover upon an
allegation that real property in Kansas
was devised to him by will which had
been duly admitted to probate in another
state, but is silent as to any record
thereof having been made here.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[Seal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
No. Is, sol.
W. r. Hogstett ct al

VS..
The Aetna Building & Loan Association,
a corporation, and T. r. Cave, Jr.
Error from Shawnee County.
AFFIRMED.
Syllabus. By the Court Benson, j.
1. Where preferential stock is issued in
a building and loan association organized
under the General Statutes of 1889, au-
thorized by the agreement of the mem
bers expressed in the bylaws, and recited
in the certificates issued therefor, the
preference so agreed upon will be observed
in the distribution of funds among the
different classes of stockholders when not
immoral or contrary to public policy.
2. In the absence of statutory inhibi-
ton, no fraud or mistake being claimed,
the agreement Of one class Of stockhold-
ers in such an association that the
amounts contributed by them monthly.
in payment for stock shall be held in a
guaranty fund pledged for the redemption
and payment at a certain time. Of the
stock of another class, at a fixed amount,
will be enforced, and such guaranty fund
will be so applied, when 1t becomes neces-
sary to do so in order to effect the re-
demption of the shares SO guaranteed.
Justices Smith and Graves not sitting.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[Seal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
LEGAL.

ages for an assault and battery, the
amount Of recovery has been determined
by the verdict of a jury and the verdict
has been approved by the overriding of
a motion for new trial; Held, this court
will not reverse the judgment for the rea-
son only that the evidence may seem to
justify the recovery of larger sum.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
[Seall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
No. 1851.
Ann Washington

Ann Washington
VS..
W. l. Richards ct al.
Error from Pottawatomie County.
REVERSED.
Syllabus By the Court. Porter, J.
Injunction will lie to enjoin proposed
survey Of lands and a change of bound
aries where the boundaries have been per-
manently established by former, lawful
survey from which no appeal has been
taken.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
LEGAL.
No. 10. SIS.
John r. Harmon
Fred Bower.
Error from Cowley County.
AFEIRMEn

Fred Bower.
+ Error from Cow1ey County
AFFIRMED.
Syllabus BY the Court. Benson J.
l. The suspension of the civil rights of a
person sentenced to the penitentiary for a
term less than life, begins at the date of
his Imprisonment under the sentence.
2. sentence to the penitentiary for a
veyance duly executed by the convict be-
fore he is imprisoned under the sentence
and while execution OF the judgment of
conviction is stayed by proceedings upon
appeal to the supreme court.
8. The manual deposit of a deed with a
third party to receive and hold for the
grantee with intent thereby to give it eff
feet as a conveyance and to place it be-
yond the custody and control of the grant
ors, with a declared or manifest purpose
of making a present transfer of title is a
sufficient delivery.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
lSeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
No. IS. $50.
Ella n. Haskell

No 1850.
Ella N. Haskell
VS..
E. ]. Beeghley ct al
Error from Dickinson County.
REVERSED.
Syllabus BY the Court. Graves, J.
purchaser for farm, entered into a writ
ten contract for sale with a prospective
buyer, which was materially different
from. and less advantageous to the seller
than the terms upon which she had au-
thorized a sale to be made. This contract
was sent to the owner for her assent and
ratification. In her letter acknowledging
receipt thereof, she used the words, "I
congratulate you upon making SALE" 9th
er parts of the letter. however, indicate
that she was not satisfied, and had refer
red the matter to her agent for examina-
ton and consideration.
1t further appeared that she, at the
same time, sent the contract to her agent
calling his attention to parts thereof to
which she Objected, and instructed him
not to close the trade until these matters
were satisfactorily adjusted. The parties
failed to agree, and no sale was made
Held that in an action by the agents to
recover commission upon the ground that
the unauthorized contract had been as
sented to and ratified by the owner of the
land. the language above quoted, standing
alone. is insufficient to sustain a verdict
for the plaintiffs.
All the Justices concurring
A true copy.
Attest: d. A. VALENTINE,
lseaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12

NOTICE.
NOTICE OF STOCKHOLDERS MEET
ING. sss.
Notice is hereby given that a special
meeting of the stockholders of The Tope-
ka and Northwestern Railroad company
will be held at the office Of the company
in the Onice block. in the city OF Topeka,
May 2Srd. 1905 beginning at 10, o'clock
a. m.
considering and acting upon the following
proposition, viz:
To approve and ratify the sale to the
Union Pacific Railroad company of the
railroad and branches, constructed or to
be constructed, of The Topeka and North
all the property, rights. privileges and
franchises thereto pertaining, and all
other property of the company last named.
H A. SCANDRETT.
Secretary.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
No. Is, 1884.
John B. Ennis

No. 1884
John B. Ennis
VS..
Frank Tucker.
Error from Logan County.
AFFIRMED.
Syllabus. BY the Court. Graves, J.
An unrecorded quit claim deed will be
held to be inferior and subordinate to a
subsequent quit claim deed from the
same grantor, where the holder of the
later deed is a purchaser in good faith,
for value; is ignorant of the former con-
veyance; and when the existence of the
prior deed was SO concealed that 1t could
not be discovered by the exercise Of rea-
sonable diligence on the part of the sub
seQuent grantee.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
CSeaL1 Clerk supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
No. 5,121.
issouri Pacific Railway

No. 1871.
The Missouri Pacific Railway Company
VS..
S. F. Walters.
Error from Marshall County
REVERSED.
Syllabus. BY the Court Burch. 7
l. The doctrine of comparative neglic-
ence is not recognized in this state
q The classification of negligence into
three degrees is no longer recognized in
this state.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE
lSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
D. A. VALENTINE,
Clerk Supreme Court.
No. Is, 511.
Arch Piper, Guardian.

NO. I0,0I1.
Arch Piper, Guardian.
VS..
John F. Piper, ct al.
Error from Labette County.
REVERSED.
Syllabus. BY the Court. Johnston, c. j.
Facts from which a trust by implication
of law arises may be established by parol
evidence or by proof partly in parol and
partly in writing and where the claim is
that the purchase of the land was made
by and for the benefit of several and the
conveyance taken in the name of only one
any writing prepared at the time, as we'll
as the negotiations of the parties, their
stances in connection with the transac-
ton tending to prove a trust may be
shown in evidence.
All the justices concurring
A true copy.
Attest: D. A. VALENTINE
lSeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
No. 49, SGT.
Metropolitan Life. Insurance Company.


Alice T. Quinn Brubaker
Error from Shawnee County
REVERSED
Syllabus. By the Court. Burch J.
l. If an applicant for life Insurance
warrant the truthflilness of his answer to
the question, Have you consulted any
other physician?' and agree that the pol
Icy issued in consideration of the warran-
ty shall be void If the answer be false,
the liability of the insurer depends upon
2 An applicant for life insurance who
from motives of his own has sought and
obtained professional interview with
physician regarding the state Of his health
can not truthfully answer the question
referred to in the negative merely be-
cause the interview concerned some tenn
porary ailment or indisposition slight in
character and not seriously affecting
health. The fact of a consultation with
a physician does not depend upon the
gravity of the subject of the interview.
8. The beneficiary of a life insurance
policy based upon a warranty of the
character described cannot disaffirm the
warranty. on the ground the applicant
4. Applicant for life insurance may
make a valid contract with the insurer
waving the privilege afforded him by
section 1913 Of the code of civil procedure
which renders a physician incompetent
to testify to professional communications
from his patient and knowledge of his
patient obtained in a professional way.
All the Justices concurring.
A true copy.
Attest: d. A.sVALENTINE,
lSeaIl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
No. 15,513.
Wyatt Stanley

No. 15,5l3.
Wyatt Stanley
VS..
The Atchison, Topeka and Santa Fe
Railway Company
Error from Harper County.
REVERSED.
Syllabus. By the Court Smith. /.
!. When jury. in addition to a general
veroict, makes special findings Of fact
winch are inconsistent with the general
verdict, the special findings control and
the general verdict should, on proper mo-
ton therefor, be set aside
uIled to jury trial as of right.
g. The special findings herein are in
consistent with themselves and inconsist-
emit with a general verdict or Judgment in
ravor of either party and, after setting
a aslde the general verdict, It was error to
ren1er Judgment for the defendant
AL the Justices concurrlng.
A true copy.
Attest: d. A. VALENTINE
lSeaLl Clerk Sunreme Co,r+
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
No. 1871.
The State of Kansas


]. William Hoskinson
Appeal from Mcpherson County.
REVERSED
syllabus. By the Court Benson ].
dsferdAn information charging that the
commlt rape upon female person under
the age OF sixteen years, by carnally
showing her, giving her name and age,
Is SUFFICIENT, although the word "unlaw-
IuHy does not appear in immediate con-
appears in the statute.
The rule admitting in evidence in
Trials for rape, the complaints of the in
1ured person, concerning the alleged Of
the fact that such complaints were made;
the details being excluded. Such testi-
mony is admitted upon the theory that if
she made no complaint of such an out
evidence that it had not occurred.
a. In the case of an adult person who
had consented to the act, such complaint
would not be expected, and the reason
failing, the rule also fails; but where the
person is a child Of tender age, testimony
that she made such complaints to persons
In whom she would naturally confide,
may properly be admitted in the discretion
of the court, having regard to the age
and intelligence Of the child, the time and
made. and the reasons upon which the
rule rests.
4. The statement of the child, made sew
eral days afterwards, giving details of the
made by an officer. for the purpose Of
formulating a complaint for the defend
ants arrest, and which are not the spon-
taneous or natural expressions of injured
sensibilities, should not be admitted.
All the Justices concurr1ng.
Attest: d. A. VALENTINE,
ISeaL] Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
No. Is. 15S.
The State of Kansas


The State of Kansas
T. T. Kelly, ct al
Error from Shawnee County
AFFIRMED.
syllabus. By the Court Mason T
l. Where the custodian of a nunicipal
warrant sells 1t without authority before
funds have been raised by the munich
pality for its redemption and thereby be-
comes liable for its conversion, the
measure of damages to the payee doe. NOT
necessarily include interest up to the time
of its payment.
q A petition which alleges that the
state treasurer, having custody Of a
municipal warrant issued for an indebted
ness due to the state, sold it without an
thority, before it was reached for nav
ment, for its face and interest to the
time of such sale, turning the money into
the treasury, does not show grounds for
the recovery by the state of more than
nominal damages against the treasurer
where there, is no allegation that the
, warrant at the time of the sale was worth
y more than the amount then paid for II:
>he lack of such allegation is not Supplied
by an averment that some time after
such sale the warrant was paid in full nv
the municipality issuing it with interest
to the date of payment.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE
lSeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12
LEGAL.

-
ger q void sale seeks writ of mandamus
70 compel public officer to take some
step as preliminary to the issuance OF
parent and the state interveneS to sup
port the officer in his refusal to do so, It
Is not necessary to a denial of such relief
t tpt the state shall restore to the plaintiH
the amount he has paid to the county
treasurer as the purchase price.
Al the Justices conCurring.
A true copy. =
Attest: D. A. VALENTINE,
lSeaLl Clerk Supreme Court.
In the matter of the application of Frank
Schneck for writ of habeas corpus.
WRIT DENIED.
syllabus. BY the Court. Smith, J.
where, upon the repeal and amend
ment Of section of the statute which
preseribes penalty for crime. no saw
ing clause is embodied in the amendment,
the general saving clause in Section 7342,
General Statutes of 1901, applies.
3 The words penalty incurred in said
Section 1912 are used in their primary and
brought upon ones self and therein are
especially. If not solely, applicable to
criminal cases.
g. A person charged with the crime Of
murder in the first degree at time when
the statute prescribed the penalty OF
great. entitled to bail although. the prose-
cution for the offense may have been
commenced after the repeal OF that PEN
atty and the enactment Of an amendment
imposing the penalty of Imprisonment for
life.
All the, Justices concurrins
Z Attest: d. A. VALENTINE,
ISeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-12

No. 1882
M. NJ. Beck and w. T. Beck partners as
M. M. Beck & Son.
James H. Lowell.
Error from Jackson County.
AFFIRMED.
Syllabus. BY the Court. Mason j.
One who, having previously claimed to
have mortgage on personal property,
notifies the buyer of it at a public sale
that he claims a right to it, is not estop-
ped to assert full title thereto by the
fact that in giving such notice he does
not specify whether he claims as mort
gage or owner.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
CSeal1 Clerk Supreme Court.