davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 1851.
Robert S. Hendricks,

James u. BROOKS.
Error from RawlinS County.
AFFIRMED.
Syllabus. BY the Court. Smith, j.
1. The identity of a mortgage, dated
November l, and acknowledged November
20, with a mortgage described in the deed
as for the same aAount and as dated on
the 1st day of the same month, is a ques
ton of fact which may be proven by evil
dence aliunde.
2 The acceptance of a deed by the
terms of which the grantor warrants the
land to be free and clear of all incum-
brances except mortgage of $500. dat
ed Nov. 20, 1883, which grantee assumes
and agrees to pay, makes it contract
in writing binding upon the grantee. to
pay the mortgage and suit can be institu-
ted upon it ard the same rights main
tanned as though the deed were also sign
ed by the grantee; and a subsequent con-
veyance of the land by the grantee is
conclusive evidence of his acceptance of
the deed and of the contract therein con-
tanned.
3. Upon the acceptance of such deed.
the debt becomes the Independent debt of
the grantee to the holder of the mort
gage and the lin1ita ton of the time for
bringing an action therefor begins to run
upon such acceptance and the running or
the statute may be suspended by the alb
sence of the obligor from the state as in
other cases.
4. One to whom the grantee. in such
deed, conveys the land takes the title
subject to the mortgage lien, If such mort
gage be of record, and the lien of the
mortgage subsists against the land so
long an action may be maintained on
the Indebtedness against his grantor; in
other words, an action to enforce the
mortgage lien is not barred by limitation
until an action against the debtor for a
personal judgment is also barred.
All the Justices concurring.
Attest: D. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
First published in The Topeka State
Journal April Is, 1907
PROPOSALS.

PROPOSALS.
Office of the City Clerk
Topeka, Kansas, April IL. 1909.
Sealed proposals will be received at this
office up to five o'clock p. m. Monday
April 10, 1909, for compiling and publishing
in pamphlet form all new ordinances and
all amendments to old ordinances passed
since the 1905 revision.
certified check for 5000 must accom-
pany each proposal.
The Mayor and Council reserve the right
to reject any and all bids or parts of
bids.
lSeal1 c. B. BJ1RGE,
City Clerk.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

Co,
VS..
Charles r. Justice.
Error from Johnson County,
REVERSED.
Syllabus. BY the Court. Graves. ,
/. Negligence or other unintentional
wrong does not furnish foundation for
a cause of action for damages unless it
was the proximate cause of the injury
sustained.
2. THE proximate cause Of an injury
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
LEGAL.

IS that cause which, in natural and con-
tinuous sequence, unbroken by any e1Il-
clent intervening cause, produces the N,
jury. and without which the result would
not have occurred
g. If two distinct causes are success
slve and unrelated in their operation. one
OF them must be the proximate and the
other the remote cause. In such case,
the law regards the proximate as the
efficient and consequent cause, and dis
regards the remote
All the Justices concurring
A true copy.
Attest: D. A VALENTINE,
ISeaLJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

No. 1925
Cockerill Zinc Company,
VS..
Calvin Streets.
Error from Wilson County.
REVERSED.
AFFIRMED.
The errors assigned are that the court
gave improper Instructions, and refused
ito give proper INSTRUCTIONS that were re-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

No. 15.9 45.
Edward McKenna and Mrs. Edward
Mckenna,
s. w. Cooper.
Error from Kingman County
AFFIRMED.
Syllabus BY the Court. Burch, j.
The notice employed in obtaining service
meaning Of article 3. section Il. Of the Con-
stitution, or of section 100 of the Code.
t need l., not bear the style The State Of
court in which the action is pending, and
need not be signed or issued by the clerk
All the justices concurring.
Attest: D. A. VALENTINE,
ISeal1 Clerk Supreme Court.
No. 1888
Jacob L. Crfgler ct al,
G. v. shepler.
Error from Barton County.
REVERSED.
Syllabus BY the Court. Benson. J.
l. Section 2479 of the General Statutes of
1901 is not repugnant to the provisions of
the federal constitution giving congress
the power to regulate interstate COM
2. The owner of intoxicating liquors in
another state cannot by virtue of this pro-
vision. of the federal constitution, come
in defiance of the laws of this state carry
on the business of soliciting orders. or
icating liquors to be shipped from such
other state without mourning the penal
ties of such laws.
8. The courts will not enforce payments
promised in consideration of services rem
dered in criminal transactions.
4. The fact that under former deci-
sion. in an action to which the plaintiff
was not party. this court held that the
statute above cited was. in its applica-
ton to the particular facts. repugnant to
the federal constitution. and that the SER
vices were rendered after such decision
was announced. does not affect the re-
suit.
5. A person who is not party or privy
in an action cannot have a vested right
in an erroneous decision made therein.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
CSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. Is, 1874.
State of Kansas,


David E. Bowden.
JUDGMENT FOR DEFENDANT.
1. To comply with section 1862. General
Statutes 1901, requiring the marshal and
tice or knowledge of any violation of the
prohibitory liquor law to notify the county
attorney of the fact of such violation and
es by whom such fact can be proven, 1t
is not sufficient that the officer should
merely talk occasionally with the county
ton should be given in such a manner
communication is official and in such
terms that he will be put in possession
of the specific information it is designed
q The fact that violarrons of which po-
lice officers have knowledge are commit
ed, in their homes and at temporary
places where there are no bars and
a business. 50 they merit the epithet of
migratory does not excuse failure to no.
tify the county attorney.
may be of the. opinion that such cases
are not OF sufficient importance to war
failure to notfy him Of d them not
lations of the law is just like any other
the efficient suppression and certain pun
ishment of crime and to accomplish this
purpose the county attorney, must be no
charge of police duty will permit.
5. The court has some discretion in
quo warranto which it may exercise &C
cording to the peculiar facts of individual
cases.
Mason, J., Smith, j., Porter, J., Graves,
Johnston c. J. dissenting.
A true copy.
Attest: D. A. VALENTINE,
tSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 1882.
j. N. Mcdonald,

81 j. N. Mcdonald,
Grace Yoder.
Error from Neosho County.
.-.--a AFFIRMED.
Syllabus BY the Court. Smith, j.
1. Any person having control or charge
of an automobile has the right to drive it
upon any public street or highway but
in so doing he must exercise every rea-
sonable precaution commensurate with
the apparent danger, to prevent the
frightening of horses and to insure the
safety of any person riding or driving
the same.
2. 1t is the duty of one in charge of an
automobile driving upon public street
or highway to look ahead and see all per-
sons and horses in his line of vision and
in case of accident he will be conclusive
ly presumed to have seen what he should
and could have seen in the proper per-
Torrance of such duty.
All the Justices concurrfng.
A true copy.
Attest: D. A. VALENTINE,
(SeaD Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
FREE DIsPENsARY.

QUINCY STREET FREE DISPENSARY.
521 Quincy st. Conducted by regular
practicing physicians and surgeons. Med
ical service free. Medicine free in some
cases. Office hours to S d. m. Calls
answered night or day. Ind. phone 17sz.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

No. 1875.
F. NJ. Spain,
vs.
R. S. Rakestraw.
Error from Graham County.
AFFIRMED.
Syllabus. By the Court. Benson.
This being a case where 1t was proper
to show the character of a party, it was
not error, in the circumstances shown, to
permit witnesses to answer questions re-
ferring in direct terms to his character
as a fighting, quarrelsome, and vindic-
tive man, as well as questions inquiring
what his general reputation was In re-
spect to the qualities named, although the
generally approved rule is to restrict such
Questions to general reputation.
All the Justices concurrfng
A true copy.
Attest: d. A VALENTINE,
lSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 1858.
Henry Cordeds.
S. H. Cushman.

S. H Cushman.
Error from Crawford County.
AFFIRMED
Syllabus. BY the Court. Graves, J.
Pending negotiations between parties for
the exchange of real estate, the deeds
were placed in the possession of an agent
to hold until satisfactory abstracts of title
were furnished. Abstracts were produced
which the holder of the deeds deemed suf-
ficient and he delivered one of the deeds
and had it placed upon record. The
grantor in that deed was not satisfied
with the abstract furnished him. The
grantee. however, upon assurances that
a perfect abstract would be procured, OBJ
tained the consent of the grantor to re-
pair the property which he expected to
receive, so to have it suitable for Occu-
pancy when the exchange was consum-
mated. The abstract could not be pro-
cured, and the grantor brought an action
to cancel the deed. The court decreed
that the deed be cancelled but ordered
that the grantor pay the reasonable value
of the repairs made by the grantee. Held
not error.
Ali the justices concurring.
true copy.
Attest: D. A. VALENTINE,
[SeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 16,2
The State of Kansas,

No 1922.
The State of Kansas,
VS..
A. Chilberg.
Appeal from Saline County
DISMISSED.
Syllabus. BY the Court. Mason, J.
Section 2S7 of the criminal code even as
now amended Gen. Stat 1901, sec, 5725,
amended by Laws 1903. CHI. 3S9, sec. u re-
lates solely to the manner of procuring a
stay of execution. and does not change
the rule that in order to procure a re-
view of a Judgment IN a criminal case
transcript of the record within thirty days
after giving notice of an appeal
All the Justices concurrfng.
A true copy.
Attest: D. A. VALENTINE,
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

No. 10, 969.
Stephen S. Brown and John E. Dolman,
doing business under the firm name of
Brown & Dolman,
VS..
Mary K. Quinton, Administrative of the
estate of l. B. Kendall deceased.
Error from Shawnee County.
REVERSED.
Syllabus. BY the Court. Johnston, C. ].
l. Attorneys employed by an admins
traitor to assist him In administering his
trust or to prosecute or defend an action
for or against him in his official capacity
have no claim they can enforce directly
Individuality liable for such services and
upon settlement of his accounts he may
be reimbursed out of the estate for at
torney's fees necessarily paid out as ex-
penses of administration.
3 In an action to recover compensa-
ton for the services of attorneys employ
ed by an administratrix In a former pro-
ceeding in behalf OF the estate of the de-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 1881.
j. P. Bauman & Sons.

McManus Bros.
AFFIRMED
Error from Harvey County.
Syllabus. BY the Court Graves ]
l.. Where merchant orders goods to be
shipped at a stipulated future date and
reserves the right in such order to
change or cancel it, and the time within
which such right shall be exercised is
not fixed, it must be done within a rea-
:. What constitutes a reasonable time
IN such case is a question Of law if
the facts and circumstances surrounding
the transaction are undisputed. If not
uhdlsputed, 1t is a question of fact proper
to be submitted to jury. They can not
be said to be undisputed when of such a
character that different minds might
reach different conclusions therefrom.
Johnston, c. J., Burch, j., Mason, j.,
Smith. j., and Benson, j., concurring
Porter. J., dissenting
A true copy.
Attest: D. A VALENTINE,
lSeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

VS..
II. 3. Stone.
Error from Coffey County.
AFFIRMED.
Syllabus. By the Court. Porter, j.
On the law of this case as declared in
former opinion, Stone V. Railway Co.,
IS Kan. 600, and the findings of fact the
judgment is affirmed
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE,
lSeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
No. 1594S.
Z. Baxter,

Z. Baxter,
Jacob KrauSe.
Error from Marion County.
AFFIRMED.
Syllabus. BY the Court. Mason, J.
In order that after a debtor has moved
from the state the statute of limitations
may run in his behalf during temporary
return 1t is not necessary that such Wis
II shall be made under such circumstances
the exercise of reasonable diligence to
make service of summons upon him. He
is entitled to credit for all the time spent
In the state unless he conceals himself.
All the Justices concurring.
true copy.
Attest: D. A VALENTINE
lSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

No. 1852
Missouri Kansas & Texas Railway COM
pany,
vs.
F. F. Jenkins.
Motion to Relax Costs.
MOTION DENIED.
No. 1913.
pany,
H Mcdowell.
MOTION TO RETAX COSTS.
MOTION DENIED.
No. Is, 431.
Missouri Kansas & Texas Railway Com
pany,
John Sealy. ct al
MOTION TO RETAx COSTS.
MOTION DENIED.
Syllabus. By the Court. Mason, j.
In the absence of any statute or rule
of court on the subject the right of
party to have expenses he has incurred
taxed as costs will be deemed to have
been waived If not asserted until after
Judgment has been rendered and satisfied,
when no excuse is shown for the delay.
All the Justices concurring.
Benson, J., not sitting. having been Of
counsel
A true copy.
Attest: d. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

No. 1882
The Missouri Pacific Railway Company,
a corporation, and The Kansas & Colo
RADIO Pacific Railway Company, a cor
poration,
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

No. 1850.
The Kansas City Live Stock Commission
Company,
VS..
The Bank of Hamlin.
Error from Brown County.
REVERSED.
Syllabus. By the Court. Graves, j.
!. The holder of a promissory note
which is secured by a chattel mortgage,
does not waive or lose his mortgage Sc
curity by attempting to collect the note
by proceedings in attachment or other
recognized process provided by law for
the collection of debts.
? The holder of a promisSory note
which was secured by a chattel mort
gage, commenced an action on the note
before it was due and took steps to OBJ
tain an attachment therein but did not do
so. A motion was made by another at
taching creditor of the maker of the note,
to dissolve the proceedings taken to OBJ
tain an attachment. While this motion
was pending. the plaintiff dismissed the
action without prejudice, and filed an in
ter-plea in the pending attachment suit
In this interplea he claimed lien upon
the attached property by virtue of his
mortgage, the note having matured and
being then past due. A motion to dis
miss the interplea upon the ground that
the remedy under the mortgage was in
consistent with that sought to be obtained
in the former action of attachment. was
sustained. Held error.
AL the Justices concurrlng.
A true copy.
Attest: D. A. VALENTINE,
tSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

BUCK Stove &c range Company, ct al,
CIV. vicIers. ct al.
Consolidated Steel & Wire Company, ct al.
80 c. c. viekers, ct al. e..
AFFIRMED. X r
Error from Saline County.
Syllabus. BY the Court. Benson. ].
/. The decision upon the last review
$50 tina that the plaintiff corporations should
be allowed a reasonable time in which
to comply with the statute relating to
state is the law of the case.
2. A corporation which had been dis
solved and was non-existent for several
years before the trial could could not
maintain the action; it had no successor,
and its action was properly abated-
in the action had assigned it's entire
cause of action to another corporation
before the suit was commenced. The
assignee made its first appearance in the
action ten years after the assignment had
been made and moved for substitution
without any claim of mistake in COM
the meantime the corporation in whose
name the suit was instituted had been
there was no error in DENYING the motion
and abating the action.
4. Another one of the plaintiffs was a
foreign corporation doing business in this
state without having compiled with our
statutes and having no right to MAIN
tain suit in the courts Of this state.
poration was adtudicated a bankrupt and
IT'S cause of action was assigned by the
trustee to another foreign corportion
which appeared in the action more than
a year afterwards and asked to be sub
stituted in place of the bankrupt plaintiff,
Held, that the assignee could acquire no
better rights than the plaintiff had, and as
the plaintiff had no right to maintain the
action, it should be dismissed.
All the justices concurring, except
Graves, J., who did not Sit
A true copy.
Attest: d. A. VALENTINE,
lSeaI1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

judgment is affirmed.
All the Justices concurring.
Attest: d. A. VALENTINE.
lSeall Clerk Supreme Court
No. 1878.
A. J. Basye, ct al,
The Paola Refining Company, a cor
poration.
Error from Miami County
AFFIRMED.
Syllabus. By the Court. Mason, ].
An action for the rescission of the pur--
chase of an oil lease on the ground of
fact that the plaintiff has used up
quantity of the oil which he has received
act he has rendered Impossible the restor-
alton in specie of all that he has received
lief of may ya Pe wen
stantial justice will be thereby promoted.
All the Justices conCurring.
Benson, j., not sitting having been Of
A true copy.
Attest: D. A. VALENTINE.
ISeal.1 Clerk Supreme Court.
No. 1855.
w. B. Killer,
Frank Wohletz
Error from Atchison County.
REVERSED.
Syllabus. By the Court. Johnston. q. ].
l. Where two parties in settlement of
controversy wherein one contended that
he owed the other one a small sum while
the other contended that there was due
to. him a much larger amount compro-
mise and fairly agree upon the amount
due and the debtor then executes a prom
issory note therefor the promise will be
binding upon the parties and the note
valid.
,. Where there has been a valid agree
ment to compromise it is not admissible
to go back of the settlement to deter
mine who was in the right in the orig
inaI contention.
3. The fact that the creditor insisted
" dine
he threatened to enforce his claim by a
civil action constitutes neither fraud nor
legal duress.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISea11 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
D. A. VALENTINE,
Clerk Supreme Court.

No. 16 3O7.
In the matter of the Applicant ton of Floyd
Manning for the Writ of Habeas Cor
pus
Original Proceeding in the Supreme Court.
PETITIONER DEMANDED
Syllabus. By the Court Mason J.
The club-room section of the prohibit
tory law (Gen. Stat 1901, sec 1865, for
bidding the keeping of a place for the sale
of intoxicating liquors to the members of
club, was not repealed by implication
by the act Of 1901 relating to the main
tenance of a place where intoxicating
liquors are sold in violation of law, which
was held to cover the whole of the sub
tect matter of the original nuisance sec
tom and therefore to have superseded
It.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
lSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

CAPITAL CITY VITRIFIED BRICK g
PAVING CO., PA E. 9Th st. Mfgs. OF
building paving and sidewalk brick
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13
D. A. VALENTINE,
Clerk Supreme Court.


J. B. Bodkin.
Error from Labette County.
Syllabus. By the Court. Benson, }.
ed a message to the defendants operator
for transmission and paid the charge
ment of the remains of a deceased broth
er; the message was not transmitted, and
the only explanation offered by the COM
pany was the testimony of the operators
that they did not receive it; the jury
having found that the message was in
eged Could in their d H RiG allow
reasonable exemplary damages in addition
to actual damages for the amount of the
charges paid, no other actual loss being
2. Upon consideration of the findings,
award Of exemplary damages is held to
to remit one-half thereof: upon his fail
ure to do so, new trial is ordered.
All the Justices concurring.
A true cUpy.
Attest: D. A. VALENTINE,
tSeal.1 Clerk Supreme Court
No. II, 399.
T. L. Martin. g. w. Winans. c. w. Os-
MILAN. = - =.
J. F. Harsha, as Mayor of the City of
Hutchinson. Kansas, and VIM. Snyder,
as acting City Clerk of Hutchinson,
Original Proceeding in Mandamus.
WRIT ALLOWED.
Syllabus. By the Court. Smith. j.
l. When an Act of the Legislature con-
tains a section which prescribes the quail
ifications required persons to hold GER
tain offices and an-Act amendatory and
supplemental thereto is subsequently
adopted which re-enacts the same sec
ton except that one OF the formerly pre-
scribed qualifications is omitted there
FROM it will not be presumed that such
omission occurred by mistake but the sec
ton of the later act is held to repeal the
former in so far as the sections differ.
2. The provisions of Senate Bill No. So
(Chapter-, Laws of 1909 being impossi-
BILE of application as to the nominat ton of
candidates for the elective offices for the
ensuing election, the provisions of pre-
existing statutes relating to the prepara-
ton of ballots for such election must be
followed.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

d. A. VALENTINE,
Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

No. Is, $50.
T. o. Tanton and T. o. Tanton as Trus-
tee, Etc.
L. r. Martin and E. L. Martin.
Error from Sedgwick County.
AFFIRMED.
Syllabus. BY the Court. Johnston, G. j.
L. A recognized exception to the rule
that party is held to know and be
bound by the provisions of writing
which he signs is where one party pro-
cures another to execute the writing by
falsely and fraudulently representing that
it contains the stipulat1ons previously
agreed upon when in fact it does not
and where the party signing the writing
relies upon the faith of these representa-
lions and is thereby induced to omit the
reading of the writing which he signs.
2. A charge of fraud may be estab-
lished by preponderance of the evidence.
The preponderance which overcomes the
presumption of honesty and innocence and
all opposing evidence and is such as Will
lead a reasonable man to the conclusion
that fraud exists meets the requirements
of the law.
g. A party has no right to complain of
an instruction which he requests the trial
court to give. az
All the Justices concurring.
true copy. -
Attest: d. A. VALENTINE.
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-04-13

No. 1854
The St Louis & San Francisco Railroad