davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
est: D. A. VALENTINE,
all Clerk Supreme Court.
No. 1851.
Orpha Brown, Appellee,

Orpla Brown, Appellee,
VS..
The Home Insurance Company of New
York, Appellant.
Appeal from Franklin County.
AFFIRMED.
Syllabus. BY the Court. Johnston. c. }.
l. parol contract to renew an exist
ing contract of insurance between those
having authority to contract by which
the same property was to be insured
again upon the same terms and condi-
lions as in the original policy is binding
the new insurance was not issued nor the
premiums paid when the loss occurred.
providing a credit is given and the pay
ment of the premium is not a condition
precedent to the validity of the con-
tract.
2. A stipulation in a renewal con-
tract that the property shall be insured
on the same terms and conditions as in
the former contract is interpreted to in
tract of indemnity and does not refer
to the steps or methods by which the
original contract was reached or exc
cuted.
8. The fact that the representative of
the insurance company had no author
ity to consummate the original contract
of insurance and that the approval OF
the home office was necessary to its va
lidity is no reason why the renewal con-
be likewise approved where it appears
that such agent had in the meantime
been clothed with authority to consum-
mate contracts and to issue policies.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10

No. 1922
Lee A. Howerton and Amelia Howerton,
Appellees,
VS..
Kansas Natural Gas Company, Appellant.
Appeal from Allen County.
On Re-hearing.
REVERSED
Syllabus. By the Court. Benson. ]
the lessee should pay $50 per year for
each gas well upon the leased premises
during the time gas should be marketed
a former hearing (Howerton VS.. Gas
templated that other wells should be
ize this lease and payments made as
burden of proof is upon the plaintiff to
an adequate remedy for the failure of
the lessee to proceed to drill other wells
to protect the land from drainage and
to obtain gas therefrom
2. Having failed to make this showing
the decree for cancellation can not be
sustained.
8. The measure of damages is the sum
of $50 per year for each well from the
time it ought to have been drilled.
Johnston, c. J., Burch, J., Mason, J.,
Smith, J., concurring.
Porter, J., concurring specially.
Benson, J., and Graves, J., dissenting.
A true copy.
Attest: D. a. VALENTINE,
ISeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10

No. 1851
Jason Yurann and Jason Yurann, as
Trustee, Appellants,
John L. Hamilton and Alice Hamilton.
his wife. Appellees.
Appeal from Marshal County.
AFFIRMED.
Syllabus By the Court. Smith, j.
l. Where petition is filed in the dis
trict court and an answer is filed thereto
purporting to be the answer of the de-
PENDANTS but entirely unsigned. and the
spects as if the answer had been signed,
and the attention of the court is not call
ed to the failure of the defendants to
sign their answer until after judgment,
1T is not error to permit the answer to be
amended by signing the same.
on ALLEGED accident and surnrise growing
out of an alleged agreement as to
waiver of evidence between the attorneys
the finding of the court as to the exist
ence of such agreement made upon con-
flicting .affidavits and the overruling of
the motion in accordance with such find
ing cannot be reviewed here.
9. Land in. the hands of the receiver
of cooperation was sold for delinquent
1902, F. sold the tax certificates to H. March
l. 1903, H. rented the land of the receiver
and took possession of 1t as tenant. In Sep
TENDER. 1903 H. received tax deed to the
land, and thereafter claimed possession and
right to the land under the tax deed, but
paid his rent according to contract
HELD, That as such tenant he was un,
der no obligation to pay the taxes and
deed and holding hereunder.
f. By buying the tax certificate. H. did
not become creditor of the corporation.
and was not barred by an order of the
court appointing the receiver which re-
strained creditors of the corporation from
interfering with the property of the cor
poration.
All the Justices concurring.
true copy.
Attest: D. A VALENTINE.
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
No. 16, SIS.
D. NJ. Watt, Appellee,


Missouri Kansas & Texas Railway
Company. Appellant.
Appeal from Bourbon County.
REVERSED.
Syllabus. By the Court. Porter, ].
l. In an action by a shipper against a
railroad company to recover damages for
caused by delay in transportation, where
the principal question in dispute was
whether the shipment was made under
written contract as the defendant claimed
or under the common law as the plaintiff
claimed and the evidence was conflicting,
it was error for the court to hold a
matter of law that the contract was not
binding on the plaintiff.
2. Upon the evidence in this case it was
error to deny a request for an instruction
to the effect that If the plaintiff used the
contract upon which the defendant claim
ed the stock was shipped in order to Sc
cure a return pass from the point of
destination and thereby obtained from
the defendant something of value which
he would not otherwise have obtained, he
must be held to have ratified the execu-
ton and signing of the contract although
he may not have expressly authorized any
one to sign it for him.
8. While an abandoned pleading no
longer serves to define the issues, it has
some evidentiary force in the nature of
an admission on the part of the pleader
and should be received in evidence for
what it is worth.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[Seal] Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
No. 1851.
William S.. Read, Appellee.


Mary R. Lotus and Thomas J. Lotus,
Appeal from Eeavenworth County.
AFFIRMED.
Syllabus BY the Court. Benson, j.
1. " -ether a stipulation in a contract
for the sale and conveyance of real estate,
to deliver at future date an abstract
showing good title, satisfactory to the
attorney for the vendee, is merged in
warranty deed. and mortgage given for
the purchase money, executed co-tempor-
aneously with the contract, is a question
to be determined by an examination OF
the instruments and the situation, con-
duct and intention of the parties.
2 If the deed is accepted as perform
ance of the conditions Of the contract it
parties agree and intend that the stipula
ton is to remain in full force and effect,
it will not be considered as merged in the
deed.
g. Taking possession and improving the
property is not conclusive evidence of a
waiver of the stipulation of the contract
as to title, especially where the improve
ments are made in pursuance to an ex-
press provision of the agreement
by the abstract delivered in accordance
with the contract, are made by the ven
dees attorney IN go4d rain endo ana nro TO ee
to prosecute an action to quiet the title.
the continuance of possession by the
vendor for a reasonable time In reliance
upon such promises, without demanding
resciSSion, is not such proof OF lacheS as.
will necessarily defeat a rescission which
was demanded after a refusal to take any
step to remove the objection.
g. The possession so taken and held;
the making of improvements; and the de-
lay in asking for rescission. so induced by
the conduct and promises of the vendor.
do not as matter of law, amount to
waiver of the stipulation relating to the
title but are proper matters to be con-
sidered in determining whether a resciS
sion should be adjudged.
All the Justices concurrIng.
A true copy.
Attest: d. A. VALENTINE.
(SeaD Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
No. 1851.
E. d. Mikesell, Appellee,

The Board of County Commissioners of
Wilson County. Kansas, Appellant.
Appeal from Wilson County.
Syllabus. BY the Court Smith, ].
l. The Parole law Cart 5, Chap. %,
General Statutes 1919). as applied to this
case is not retroactive. nor is it in viola
ton of Article one of sthe Fourteenth
Amendment to the Constitution of the
United States. but is valid.
2 Where a person convicted of viola
tlons OF the prohiplsoTy liquor law Is sen
county jail and also a fine is imposed as
the penalty, and is adjudged to pay the
costs and to stand committed till the fine
and costs are paid. and where after the
commitment to jail the governor of the
state issues to the prisoner q full pardon
so far as he has the power but the pris-
oner is held in jail for non-payment of
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
No. 16, 53S.
L. H. Sheppard, Appellee,

No. 1888.
L. H. Sheppard, Appellee,
VS..
The Wichita Ice and Cold Storage Com
pany, Appellant
Appeal from Sedgwick County.
AFFIRMED.
Syllabus. BY the Court. Porter, j.
l. Where there is some evidence tend
ing to support verdict to justify an
appellate court in overturning it on the
ground that it is contradicted by the
settled and unquestioned laws of nature
or by some established principle of math-
ematics, mechanics, physics or the like.
the undisputed physical facts must
demonstrate beyond any reasonable doubz
that the evidence is fa'se and that the
verdict is without support in fact or
law.
=. Tire evidence in tins case examined.
ard held that the physical facts are nut
shown to be such to authorize the
court to say that the story told by the
plaintiffs witnesses is false or improb-
abe.
All the Justices concurring.
A true copy
Attest: D. A. VALENTINE,
LSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
No. 1857.
The State of Kansas, Appellant,

No. 1851
The State of Kansas, Appellant,
VS..
H. B. Johnson and o. E. Dick, Appellees.
Appeal from Franklin County
REVERSED.
Syllabus. BY the Court Smith, J.
In a criminal case pending before a
justice of the peace on a charge of mis-
demeanor where a continuance has been
granted and the defendant has been re-
leased upon a bond given to secure his
attendance at a certain day and hotr,
at which time the case is set for trial,
it is within the discretion of the court,
if the defendant appear only by attorney
at the time and place specified for trial,
to proceed with the trial or to refusa 10
proceed and to forfeit the bond.
All the Justices concurrlng.
A true copy.
Attest: D. A. VALENTINE,
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10


No. 1854.
Harry Brice ct al, Appellees,
VS..
E. 7. Sayler and Mrs E. T. Sayler, APP
pellants.
Appeal from Gray County.
AFFIRMED.
Syllabus. BY the Court. Burch. z.
The state issued to a purchaser or
tificate of purchase of school land A
forfeiture was attempted and a certificate
was issued to a second purchaser. for the
forfeiture proceedings were void. The
land was sold for taxes, a tax deed wAs
issued and the tax purchaser paid out the
first school land certificate and obtained
a patent. The tax proceedings were de-
fective. In an action by the patentee to
quiet his title the two holders of school
land certificates set up their titles and
asked for affirmative relief. Judgment
was rendered for the .patentee and the
second certificate holder only appealed.
Held. it is no longer material whether the
plaintiff proceeded under the statute or in
equity and appellant cannot complain of
defects in the tax proceedings.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
D. A. VALENTINE,
Clerk Supreme Court.
NO. 16, SIC.
Edward Morrison, Appellant,
VS..
Thomas H. Pence, Appellee.


Thomas H. Pence, Appellee.
Appeal from Gray County.
AFFIRMED
Syllabus. BY tho Court. Johnston, C. J.
l. The failure of an officer in his an
swer, justifying an ALLEGED illegal ar
rest and detention, to state particularly
the offense with which the PLAINTIFF was
charged and the grounds for which the
arrest was made is not material error
where it appears that the plaintiff W as
fully informed as % the nature of the
charge and the cause of his arrest and
was not derived OF any right hccause
of a lack of su"h reformation.
2 A city marshal was regularly ap-
pointed and confirmed by the mayor and
council and was sworn into office by a
competent officer but 40 commission was
given to him nor did he subscribe to an
oath. He entered upon the discharge of
his duties and later arrested without a
warrant one who was committing pub
lie offense' in his presence. Held: That
the failure of the officer to receive a
commission and to subscribe to an oath
did not diminish his authority nor pre-
vent him when sued for false impriS-
onment to justify the Tarrest on the
ground that he was an OFFICER.
All the Justices concaFFing.
Attest: ID. A VALENTINE,
LSeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
D. A. VALENTINE,
Clerk Supreme Court.
No. 1888
NJ E. McNutt and C. w. McNutt, APP
pellees,
VS..

VS..
John L: Nellans, Appellant.
Appeal from Decatur County.
AFFIRMED.
Syllabus. BY the Court Porter J.
1. Equity will not compel Il purchaser
under an exec ~ contract for The sale
of land to accept the title if doubtful or
unmarketa
2 A title is doubtful if it exposes the
party holding it to the hazard of litiga-
ton.
8. In an action to recover money paid
on the purchase price Of land OH account
an abstract showing clear title. it ap-
peared that the vendors title rested
upon a deed executed by foreign as
signee solely by virtue of an order of
court in the state of Iowa Before the
action was tried the vendor obtained a
judgment quieting his title upon service
by publication against the foreign as
signor, the assignee and the party to
whom the assignee had conveyed, and
asked for specific performance against
dered is SO doubtful that the plaintiff
should not be compelled in equity to ac-
cept the same.
4 In such an acton, where the defend
with the terms of tee contract and asks
fer specific. performance and Judgment
for the balance of the purchase money,
and offers proof showing the execution
by himself and wife of deed conveying
the land to the plaintiff he is estopped
to claim in the same action that the
contract for the sale of the land is void
on the ground that the land comprises a
homestead occupied by himself and wife
and that the wife failed to join in the con-
tract.
All the Justices concurring.
Attest: D. A VALENTINE,
TSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
D. A. VALENTINE,
Clerk Supreme Court.

No. 16. 4O7.
Robert L. Bailey, Appellant
Riverside Township, Appellee
Appeal from Trego County
AFFIRMED.
Syllabus BY the Court. Graves T
1. Where a pleading consists of more
than one count. each count must as
against general demurrer. be considered
as if standing alone and constituting. ,he
entire pleading.
3 In such case neither facts involved
in the action nor the averments oe an
other count, unless incorporated by refer
ence into the pleading demurred to- can
properly be considered upon such hear
ing.
9. Where upon the hearing Of a motion
for new trial the court requests the
applicant to point out specifically the de-
fects complained of and such applicant
declines and neglects to do So such fail
ure will be regarded as a waiver of any
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
No. 1873.
Dennis D. Doty, Appellant,


J. W. Maddux and A. R. Jessup, APP
pelleeS
Appeal from Finney County.
AFFIRMED.
Syllabus BY the Court. Benson, j.
After the tax roll of 1883 had been de-
Iivered to a county treasurer an assess
ment on two lots for building a sidewalk
in city of the second class was eert-
fled to the county clerk VINO certified
it to the treasurer who entered it upon
the tax roll against each lot thus:
IS Walk 6O25". Other taxes upon the
property for nat year were paid i'll due
time. but each lot was soll ut the tax
sales of 1889, to- Il delinquent sidewalk
tax of S6O25. and in 1898 tax deed was
issued thereon to an assignee of the GER
tificate who was in possession under it
when this suit was brought by the owner
of the lots for possession. The tax deed
was void upon its. face. Judgment was
rendered for the plaintiff for possession
but a lien was given 20 the defendants
for all taxes paid with interest and costs.
Held, That the plaintiff VINO appealed
from the judgmen. allo wing the lien for
taxes should not be relieved therefrCm.
All the Justices cOncurring.
A true copy.
Attest: D. A. VALENTINE,
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
No 1850.

No. $500.
John Aherne, Appellee,
VS..
The Wa-Keeney Land & Investment Conn
pany,, Appellant, and w. II. Cramer'
Appeal from Kearny County.
AFFIRMED.
Syllabus. By the Court. Graves. J.
/. An affidavit, such as is prescribed by
scented to the district court for the pur-
pose of obtaining an order to serve de-
PENDANTS by publication. The court. after
examination of the affidavit, found 1t in
all respects in compliance with the law
and thereupon made the order Notice
by publicatio was given in accordance
with such order and at the proper time a
decree to quiet title was entered against
all the defendants upon default. Thirty
seven days interviewed between the date
when the affidavit was sworn to and
when the order was made. Held that this
lapse of time alone does not make the de-
cree void.
2 Where a judgment has been entered
in an action against defendants over
whom the court did not have Jurisdiction,
and such defendants voluntarily request
the court to open such judgment under
section n of the code and permit them to
plead in the action, which request is
granted and the pleadings are filed, and
the issues made thereby are. litfgated by
such parties,-aH questions of jurisdiction
are thereby waived and the parties are In
court for all the purposes of the action.
All the Justices concurrlng.
A true copy.
Attest: D. A. VALENTINE,
CSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
No. 16, 344.
w 4 nAI- A.


The State Bank of Commerce, Appellee,
Appeal from Marion County
AFFIRMED.
syllabus. By the Court. Johnston, C. ].
- In an action to recover damages for
the wrongful attachment of money and
notes by way OF garnishment where there
Is no malice nor grounds for the recoV-
cry OF exemplary damages the measure
OF damage is interest on the money and
notes during the time they were held
under the garnishment process and the
necessary expenses incurred in regain
ing possession of the property Neither
the loss of prospective profits in the gen
eral business of the owner because A part
of his property was garnished nor injury
TO his credit are elements Of damage.
- All the Justices concurring except
Graves, j.. who did not sit.
A true copy.
Attest: d VALENTINE
lSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10

U. S. Wolfe, Appellee.
The Board of County Commissioners of
Lyon County, Appellant, and j. c. Stew
art ct al, appellees.
Appeal from Lyon County.
REVERSED.
Syllabus BY the Court. Graves, j:
l. Under the provision of section 5000 OF
the General Statutes of 1901, a clerk Of
the district court in a county having
population of more than 10000 and not
more than 900 is entitled to receive all
the fees of his office charged and collect
ed for services rendered by him If such
fees do not exceed the amount of 81, 400
per annum: if they do exceed that
amount, then he is entitled to receive one
half of the additional fees charged fer
services rendered by him.
g In such a county the clerk retired
from office at the expiration of his term
He had received the sum of 81 400 per an
mum during the time he was in office. He
left a large amount of fees charged upon
the books of his office for services rem
dered by him. These fees were collected
by his successor from time to time, and
paid to the county treasurer. Held that
one-half of such fees belong to the retir-
ing clerk, one-half thereof to the county
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
[SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
LEGAL.

costs; the district court may parole the
prisoner and six months thereafter may
finally discharge such prisoner.
8. If the prisoner be found insolvent
and unable to pay or give security for the
same, such costs must be paid by the
county, and the county shall become liza
BILE thereafter at the expiration of one
month from such release if such costs
are not paid by the defendant. Sections
1873 and 246S, General Statutes 1909.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeaIl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
LEGAL.
No. 1851
Charles B. Hulsman, Appellant,
Jennie Deal. Appellee

Jennie Deal. Appellee
Appeal from Ffnney County
REVERSED.
Syllabus. By the Court Benson. J
The right of person, given by stat
ute, to redeem his land from a sale for
taxes during the period of his minority
and for one year thereafter, is not Inn
tied by the provisions of another statute
which requires that a suit to avoid a
sale or conveyance for taxes except in
cases where the taxes have been paid
or the land redeemed, shall be COM
menced within five years from the time
of recording the tax deed.
All the Justices concurrlng.
true copy.
Attest: L. A. VALENTINE
LSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
No. 1926
The State of Kansas, ex rel,

Inc state or Kansas, SX EEL,
VS..
]. N. Dolley, ct al
Original proceedings in Mandamus
Order Concerning Pleadings.
syllabus By the Court. Mason, ].
l. In mandamus it is proper to make
persons defendants from whom the per-
Torrance of no duty is sought, but who
might be affected by the judgment.
?. The character of notice to be served
upon such defendants is immaterial, so
that they are informed of the tendency
of the proceeding.
9. When the individual TO be bene-
fitted requests a public officer to per-
form a statutory duty and is met with
refusal, the state is a proper plaintiff
in mandamus proceedings to compel its
performance
4. court will undertake to pass upon
the validity and effect of statute only
when necessary to the determination of
an actual and concrete controversy
5. Where a request is made of a pub
lie officer to perform an act under a stat
ute, and he, although believing that the
law requires its performance, refuses be-
cause of a doubt upon the subject and
because he wishes the question to be
quickly and finally settled by the de-
cision of a court a proceeding brought
by the state to compel such action on
his part is not fictitious.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
CSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-05-10
D. A. VALENTINE,
Clerk Supreme Court.
No. 1858.
Miley Hawkins, Appellant,

No. 16,545.
Miley Hawkins Appellant,
VS..
E. C. Windhorst, Appellee.
Appeal from Edwards County.
REVERSED.
Syllabus By the Court. Johnston, G. J.
The mutual and concurrent promises
of parties in the sale and purchase of
cattle wherein a check is given by the
purchaser as a partial payment for Tie
cattle sold constitute sufficient consid-
Grafton for the check. and when an ac-
ton is brought by the payee against the
drawer on the protested check the draw
er can not defend on the ground that no
cattle were received by the purchaser
rendered to him and that the non-deliv-
cry of them was due to the failure of
the purchaser to perform his part CT the
agreement.
All the Justices concurring.
A true copy. -
Attest: D. A. VALENTINE,
ISeal.1 Clerk Supreme Court