davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
No. 6.201.
Alfred Seifert, Appellee,


H. F. Schaible Appellant.
Appeal from the Court of Common Pleas
of Wyandotte County.
AFFIRMED.
Syllabus. BY the Court. Johnston, G. ].
L Pedestrians may rightfully cross
streets at places other than the cross
walks at the intersection of streets and it
is the duty of a driver of a team to keep
a lookout for pedestrians well for
vehicles passing along and over the street
and exercise reasonable care to avoid a
collision with them and if he fails to do
so and by reason thereof a pedestrian
is injured the driver, or his employer, is
responsible for the injury.
2. The injured person herein was a boy
twelve years of age and under the testi-
mony it is Held that it was competent for
the court to call the attention of the jury
to the rule that children of tender age are
not held to the same strict accountability
in the care of themselves as persons of
full age but are required to exercise such
care as persons of their age, experience,
knowledge and intelligence are ordinarily
expected to exercise under like circum-
stances.
g. The scope of the crosS-examination
of a witness is ordinarily limited to the
subject matter of his examination in chief
and a party who desires his testimony as
to other facts should make him his own
witness.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
CSeal] Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
No. 16, EOS.
H. e. Cockereil, Appellant,

H. e. CockereiI. Appellant,
T. S. Henderson, ct al. Appe1lees.
Appeal from Sedgwick County.
REVERSED.
Syllabus. BY the Court Smith. ].
Under our code (Sec. 100 all distinctive
forms of civil actions are abolished, and
In civil action which may be founded
upon either contract or tort, the plaintiff
is not required to state upon which he
relies as the basis of the action, and gen.
orally If he should make such statement
and be mistaken, the statement would be
required to do is to state the facts con-
shutting his cause of action, In ordinary
ton: Akin ". Davis. IL Kan. $50; Code,
section 90.
All the Justices concurring.
A true copy.
Attest: d. A VALENTINE
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
LEGAL.
COURT SYLLABL.
No. 1872.
G. "A. King, Appellee.

No. IS, 912.
G. A. King, Appellee.
The Western Union Telegraph Company
Appellant.
Appeal from Ffnney County.
REVERSED.
Syllabus. BY the Court. Graves. d
Where "A general verdict and special
findings of fact are unsupported by any
evidence they should be vacated ana SCI
aside, and a judgment entered tnereon IL
erroneous and will be reversed.
All the Justices concurring.
true copy. ~
Attest: D. A. VALENTINE,
ISeaIJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
LEGAL.

objection of the party who made the offer,
although such offer had been filed with
the clerk and remained on file when it
was accepted
2. In such case If the notice of accept
ance be not given within the period limit
ed therefor, the offer is deemed Withdrawn
without any action of the party who
made it.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE
lSeai.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
No. 1921.
]. F. Miller, Appellant.

No. l6, ~.
J. F. Miller, Appellant,
VS..
George F.. Miller, Appellee.
Appeal from Wyandotte County; Court OF
Common Pleas.
REVERSED. M
Syllabus. By the Court. Benson, J
In an action to recover the value of per-
sonal service, 1t was not disputed that
services of substantial value were rem
dered, but it was claimed by the defend
ant that they were to be gratuitous: On
this issue the evidence was conflicting and
the jury returned verdict for the plain
tiff assessing his damages at S1.00. Held
that the verdict is inconsistent and that
it should have been set aside on the
plaintiffs motion, based upon the ground
that the recovery was too small.
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE.
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
d. A. VALENTINE,
Clerk Supreme Court.
No. Is, e5S.
William H. Johnson, Appellar

William H. johnson, Appellant,
VS.
Wamego Township, Pottawatomie County,
Kansas, Appellee
Appeal from Pottawatonnie County.
REVERSED.
Syllabus BY the Court. Benson. ]
1. An offer to allow Judgment to be Ia
ken, which is served in the vacation of the
court but is not accepted within five days
after service upon the adverse party, as
provided by section 523 of the civil code,
Gen. Stat 1901. sec. 5000 vii not sustain
a Judgment rendered thereon over the
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
No. 16, 225.
Simon Good, Appellant,

OlInOn 1000, Appellant,
VS..
Eugene Williams, Appellee.
Appeal from Clark County.
REVERSED.
Syllabus. BY the Court. Porter, j.
L. Where the vendor of land executes
and delivers a deed to his vendee. who
thereupon executes a mortgage back to
the vendor for part of the purchase price
and returns the deed to the vendor to be
recorded, the delivery is sufficient to vest
the title in the vendee.
2. The delivery of deed is not essen
estate in tbe arantee' qu1 Were the narties
have agreed to sale and conveyance, the
deed has been executed, the purchase
price paid, and nothing remains for either
party to do to complete the transaction
except for the grantee to record his deed,
he becomes the equitable owner of the
land and it is not subject to attachment
for the debts of the grantor.
- All the Justices coneurring.
A true copy.
Attest: D. A. VALENTINE,
CSeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
No. 1921.
Lindsay L. Hill, Appellant.

VS..
The AtchiSon, Topeka and Santa Fe Rail-
way Company, Appellee.
Appeal from Sumner County.
AFFIRMED.
Syllabus. By the Court. Benson, }.
1. In the absence of wanton or inten-
tiona1 wrong doing an employer who fur
nishes defective instrumentalities is liable
to employe only when danger would
reasonably be apprehended from their use.
2. If persons of ordinary caution and
prudence would not in the light of the at
tendant circumstances anticipate danger
in using a defective appliance and danger
was not natural and probable conse-
quence of such use liability to an employee
for negligence in furnishing it does not
arise against the employer.
Benson, J., dissenting.
A true copy.
Attest: d. A. VALENTINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
No. 1920.
Charles D. Evans, Appellee,

Charles D. Evans. Appellee,
VS.
Seheol District No 46, ct ALL. Appellants.
Appeal from Reno County.
AFFIRMED.
Syllabus. BY the Court: Mason. :.
a resident of a school district in which
M, school is held is entitled to the school
privileges Of an adjoining district In which en-
1917 oh s21 sec u providing that one who
owns land in a school district. adjoining
that of his residence may send his emil
is more convenient by reason of distance
from the school of the district in which ~ ne
lives For the purposes or the staluIe
district is equivalent to the existence or
one at an inconvenient distance
All the Justices concurring.
A true copy. -
Attest: u. A. xALENl1NE r..
ISeal1 clerk supreme court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
No. 1920.
B. F. Dodson, Appellant.

w. NJ. Convey, Appellee.
Appeal from Pratt County.
AFFIRMED.
Syllabus. By the Court Benson, J.
A person having the right to cultivate
land under an agreement with the owner
that he should have a share Of the crop
Tor planting and harvesting 1T, agreed
with another person that If the latter
would furnish the seed wheat he Should
have one-fourth of the crop when har-
vested: The seed was furnished and the
crop raised and harvested in accordance
with the agreement. Held, that the party
furnishing the seed was the owner of one
fourth of the wheat so harvested and that
his right thereto was not affected by a
mortgage given by the other party on the
entire crop.
Ali the justices concurrfng
A true copy.
Attest: d. A. VALENTINE
ISeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
LEGAL.

peilee must bear the burden occasiones
by the mistake.
All the Justices concurring.
Attest: D. A VALENTINE,
tSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
No. 1926.
w. s. Kerr, Appellant,

w. .. Kerr, Appellant,
VS..
Horace Coberly, Appellee.
Appeal from Reno County.
AFFIRMED.
Syllabus. BY the Court. Graves J.
/. An action was commenced before a
justice of the peace in which the plaintiff
claimed judgment upon each of two sepa-
rate and distinct causes of action growing
out of two separate and distinct transac-
tons, one for $50 and the other for $195.
The action was commenced August 2, 1907;
the claims were each due August l. 1907.
When the case was set for trial, August
9, 1907, the defendant by answer admitted
liability for the $50 and paid the money
into court. which the plaintiff did not ac-
eept: The defendant pleaded payment as
70 the other item, and a trial was had
thereon in which the defendant was de-
trict court where a trial was mad upon
the same item only, and the plaintiff was
defeated. By direction of the court, the
plaintiff for the uncentested item of $50
with interest from August 1, 1907 The in
6erest on the $50 from August to August
ment; Plaintiff insisted that thai pI By
cause eau eaut of this this difference between
costs should be taxed to the defendant.
me court rendered judgment on this item
Ior the plaintiff including interest from
and taxed the costs which accrued prior
to August 9, when the $50 was paid into
court to the defendants and the remainder
TO the plaintiff. Held not error
2. Where the evidence upon a material
lact rs clrcumstantial and conflicting it is
not error for the court to refuse an in
structfon which selects part of such evil
dence and gives it undue prominence and
Importance to the exclusion of other evf-
dence. equally material.
All the Justices concurring.
A true copy.
Attest: D. A.4yALENTINE
tSeaLI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
No. Is, 2N.
William Martin, Appellee,

William Martin. Appellee,
The Chicago Rock Island and Pacific
Railway Company, Appellant
Appeal from Harper County.
AFFIRMED
Syllabus BY the Court Graves. J.
l. Where a railroad company operates
a railroad under a lease which requires
it to maintain a road-bed. track. fences,
and right Of way in good repair and prior
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
No 1879.
John w. Kibby, Appellant,

No 1879.
John w. I<ibby, Appellant,
VS..
John w. Kibby, Appellant.
Appeal from Seward County.
AFFIRMED.
Syllabus By the Court. Benson,
K. sued H. and several others to quiet
title to several tracts of land including
the northeast quarter and the northwest
quarter of certain section: A Judgment
was rendered for the plaintiff on. service
by publication: On motion of H: alone
the judgment was opened as to him, his
answer claiming title only to this north
east quarter: After the expiration of the
three-years' period for opening such judg-
ments II. was allowed to amend his an
sswer. by substituting. northwest for
northeast" to correct a misdescription
of the land claimed. AS H. had been
sued in respect to his claim to the north
west quarter, and he had no title to the
northeast quarter. the amendment pre-
served the identity of HIS defense and
counter claim to the subject of the action
between the parties affected, and was
properly allowed.
All the Justices concurring.
Attest: d. A VALENTINE,
(SealJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
No. 1928.
Grace Michael, Appellee,
o. E. Matson, Appellant.
Appeal from Harvey County.
REVERSED.

REVERSED
Syllabus. By the Court Mason, J.
l. In an action for malicious prosecu-
ton the question of what information is
sufficient to warrant a reasonably pru-
dent man in believing another guilty of a
crime is one of law, and it is substantial
error to submit it to the jury. An instruc-
ton that in order for probable cause for an
arrest to exist the facts must be such as
would justify an ordinarily. prudent per-
son in entertaining a belief in another's
guilt, and that whether such facts had
come to the knowledge of the defendant
at the time he caused the arrest of the
plaintiff is a question for the Jury to de-
termine is likely to be understood by the
jury to mean that they are to decide not
but whether 1t was enough to justify a
reasonable belief in the eplaintiff's guilt
Such an instruction. unless accompanied
what specific facts under the circum-
stances of the particular case would if
found to exist, be sufficient under the law
for that purpose. is materially erroneous
2. What constitutes probable cause for
an arrest is a question of law and if a
conp },i ero,,ns that the acc upoa [e as
guilty, it is not material in an action
against him for malicious prosecution
whether he believed that probable cause
existed in a legal sense, unless as bearing
upon the question of malice.
g. 1t is not necessary in order for prob
able cause for an arrest to exist that the
accuser shall believe that he has suffi-
Client evidence to procure conviction of
the accused
ing witness to the prosecuting attorney
concerning his knowledge of matters re-
lating to the probable g guilt or innocence
not be given. in evidence over his objec-
ton in an action against him for maIic-
ious ;. p .Ss I,,ssInes concurrine
Attest: D. A. VALENTINE.
ISeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
No. 1912.
Anna Ashelford, Appellant,

No. 1912.
Anna Ashelford, Appellant,
VS..
Elizabeth Chapman. ct al, AppeIlees.
Appeal from Dosage County.
AFFIRMED.
Syllabus. BY the Court. Burch. J.
L. A widow provided for by her hus-
bands will has the choice of two rights
one under the statute of descents and dis
tributions and one under the will; but she
cannot have both except in gases where
such is the purpose Of the will. She may
take either, but the election of one is a
REIMBURSEMENT of the other. -,
2. The Widows election is between will
there is no will as to her and none of
her rights can be abridged by any of its
the estate according to law precisely as
if no will had been made. Then the will
operates upon the residue.
8. If the widow take under the statute
the principle that there is no will as to her
forbids that she should enlarge any OF
her rights under the statute by an appeal
to the will. She is a stranger to 1t and
has no standing to compel others who
take under the will to comply with pro
visions which might increase her distrib-
utive share of the estate.
T. When a widow elects to take in op-
position to her husbands will she receives
the share of his estate that she would
have taken had he died intestate, which
is one-half in value after the payment
Of debts
5. A husband made provision for his wife
and children in his will. The children
were given certain real estate, the pur-
chase price of which had not been fully
paid The will required the children to
contribute equally from their shares OF
the estate sufficient sums to satisfy this
Indebtedness The widow elected to take
under the statute of descents and distribu,
tons and in an action to partition the real
estate demanded that the purchase money
liens be charged entirely upon the chill
dren's portion Held, she is bound by her
election to disregard the will, cannot IN
woke to her advantage the provision relat-
ing to the payment of the liens and the
will cannot be considered in determining
the share of the estate which the statute
awards her
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[Seall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
d. A. VALENTINE.
Clerk Supreme Court
No. 16,042.
w. c. Gum, Appellant,

No. 16,O42
w. c. Gum, Appellant,
D. Nj. Brewer, Appellee.
Appeal from Kiowa County.
AFFIRMED.
Syllabus. By the Court Mason j.
Where by reason of the deficient acre
age of a congressional township a quar-
ter section thereof is divided by the gov
eminent survey in accordance with the
usual practice into an eighty acre tract
and two numbered lots, each containing
somewhat less than forty acres, one OF
such lots is sufficiently described in a
tax deed as quarter of the quarter sec
ton.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE
[Seal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
No. Is, 9S9.
c. w. Herod, Appellee,

No. Is 9S9.
C. w. Herod, Appellee,
VS..
W. O. Carter. Appellant
Appeal from Finney County
REVERSED.
syllabus By the Court. Johnston C. }.
l.. me statutory rule for Interpreting
ana applying descriptions of property
conveyed in tax deeds is that, ANY
description of land which shall Indicate
the iand intended with ordinary and rea-
sonable certainty, and which would be
sufficient between grantor and grantee,
Gent s7.f9
2. The law does not require that a
description of land in tax deed shall be
SO complete that a resort to extrinsie evil
dence to determine the identity or location
OF the land intended shall be unnecessary.
3. To apply defective or doubtfu l
description and identify the property con-
veyed the court may look to facts and cir
cumstances suggested by the defective
description, such as the record of the tax
proceedings under which the property was
sold and conveyed and in aid of the defec-
tive description may also look to the acts
and conduct of parties concerned showing
Identification or a practical location OF
the property intended.
All the Justices concurring.
A true copy.
Attest: D. A.2VALENTINE
tSeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
d. A. VALENTINE.
Clerk Supreme Court.
No. 1928.
The State of Kansas, Appellee,

NO. Io,oZo-
The State of Kansas, Appellee.
Frank Winters, Appellant.
Appeal from Pawnee County.
AFFIRMED.
SYLLABUS BY the Court. Buich. j;
/. The statute providing that the trial
Judge in a criminal case must state to the
jury all matters of law necessary to en-.
able them to give verdlSr q zoe ,,, HI.
fication of all proceedings in which It Is
not strictly observed. 1t merely prescribes
Of which a defendant may waive.
2 Generally defendant In criminal
case may waive instructions upon lesser i1
the principal crime charged In the 1nfor-
nation by failing to make a timely re-
quest for them; and a fortiorf he does SO
by Directing to the giving of such instruc-
e Generally verdict of guilty of a
higher offense or degree. based upon sat
isfactory evidence and correct instructions
relating to it, renders error in giving or
refusing instructions upon INFERIOR de-
grees or offenses immaterial
T. Limitations upon the rules stated in
paragraphs and discussed
All the Justices concurr1ng.
Attest: D. A. VALENTINE.
LSeal.1 clerk supreme court
No. 1889
| Sarah E. Plowman, ct al, Appellees.
Laura v. Nicholson, Appellee, and George
T. Hughes, ct al, Appellants.
|
On Rehearing.
AFFIRMED.
Syllabus. By the Court; Mason: J;
| 1. The presumption that voluntary
! conveyance of property from father to q
child is intended as an advancement IS
based upon the supposition that he intends
the distribution of his property. and what
ever shows purpose. to discriminate
| against one of them in that regard tends
| to overthrow the presumption that he in
| tends a deed to another as an advance
| ment.
& Where a parent executes a series of
1 deeds to several of his children, seemingly
| in pursuance of a general plan, evidence
i of what he said at the time of the deliv-
cry of one of them, tending to show 2
| purpose to discriminate against a part of
| his children in the distribution of his prop
/ erty, is competent evidence that all the
/ deeds of the series Including even those
/ of earlier date) were intended as prefer
| entail gifts.
| All the Justices concurring.
i Attest: ?; 4: VALENTINE.
i TSeal1 Clerk Supreme Court.
/ No. 16,045.
/ John NJ. Grant, ct al, Appellees.
Ellen c. Isett. Appellant.
/ Appeal from NeoshO County.
AFFIRMED.
i Syllabus BY the Court. Smith, j.
/ /. If the answer of appellant is to bt
| construed strictly and dramatically, -as
probably it should be against the pleader
Il it sets forth no defense to the petition
but alleges only an error of law on tbs
part of the appellant, for which the ap
i pellee is not alleged to have been in an,
i way responsible.
strued favorably to her. and in the ligh
Signed 81 med only through inadvertance ane
Evidence shows the appellee Ape I was prae
tica1ly an innocent holder of the paper
and that the appellant and not the ap
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-14
D. A. VALENTINE.
Clerk Supreme Court.

No Il, 49,
e. s. Dent, Appellant,
Appeal from Harper County.
.4a REVERSED.
No. 15,S74.
NJ. E. Sweetland, Appellant
J. HIS. H; Simpson f, ct al. Appellees
REVERSED.
Syllabus By the Court. Porter J.
1. Parties have the absolute right to
have their cause argued by counsel before
the decision is rendered, whether it is
tried to the court or jury. But, in order
court to allow argument, it must appear
that counsel have not waived. the right
by by ISL, silence Go; or aceuiesence The record
to argue was refused.
2. The certified record of a county sur
office of the register of deeds under the
provisions of the General Statutes of 1901.
chapter chapter g, article T. section "a, is ad-
as the original.
g. On appeal from a county surveyor
record Of a former survey is admissible
in evidence for the purpose of explaining
the, survey in contraversy and is -prima
facie evidence although the record may
not show that such former survey was
made with notice to all parties in interest.
| ty surveyor establishing boundary lines,
the surveyor testified that he was unable
to find the government corner between
the sections and that he established the
corner about fifty feet distant from the
point which the plaintiffs claimed was
the true corner. The whole controversy
turned upon the location of the govern
| ment corner which plaintiffs sought to
prove by circumstantial evidence, no wit
ness testifying where the stone marking
/ the corner actually is or was located. The
| Court rendered judgment approving the
surveyors report In support Of a motion
for a new trial, plaintiffs produced the
| affidavit of a witness who testified that
he knew the true location of the corner;
| that he was road overseer twenty years
| before and graded the road; that the cor
ner in dispute was then marked by q
stone in the middle of the road and was
visible; that in grading the road he plow-
| ed over and covered up the stone; that
after the trial he went to the place and
stepped the distance from the edge of the
road to the point he calculated the stone
would be and there dug down and found
| the original stone; that it was the same
stone in the same location that it was
| when he graded the road and that it was
loriginally placed there to mark the corne,
and the boundary line between the sec
| fions Held, the newly discovered evidence
was not cumulative and it was error tt
refuse ? new trial.
| All the Justices concurring.
1 Attest: d. A. VALENTINE.
! TSeal1 Clerk Supreme Court