davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
LEGAL.
Published in The Topeka State Journal
January II, 1901
SUPREME COURT SYLLABI.
No. 1928.
Jennie S. Gordon, Appellee,

-
Lille Gordon Mum and Lewis H. Mum,
Appellants.
Appeal from Shawnee County.
AFFIRMED.
syllabus. BY the Court. Benson. j.
In an action by one claiming to be
WIDOW, for the partition of lands owned
Dy her husband at the time of his death,
the defendant, a daughter of the deceas-
ed, alleged that she was his sole heir;
land; that at the time of the pretended
marriage of the plaintiff with the de-
ceased she had a husband living from
whom she had not been divorced; and
mat an ante-nuptial agreement mad been
mace excluding her from any interest," IN
the lands of the deceased; and she pray
ed for Judgment quieting title. Issues
We're duly made upon these allegations,
upon which considerable evidence was
taken Afterwards the defendant COM
plaintiff here to quiet title to lands in
mat state also owned by the deceased
at the time of his death. In her pc
luton the paintiff in that action, Defend
ant here. made the same allegations and
rendered the same issues that were made
parties are residents of the county where
the action in this state is pending ana
are properly implicated therein 1t is
held: % That the district court had jur-
further orders from prosecuting the suit
IN colorado and from bringing actions IN
Other states where other lands OF the
deceased are situated to try the same
questions so in controversy here; and %
that upon the facts presented in the rec
ord an injunction was properly allowed.
All the Justices concurring.
A true copy.
Attest: D. A, VALENTINE,
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
First published in The Topeka State
Journal January s, 1901

Office of City Clerk, Topeka, Kansas
January z, 1910.
Sealed proposals will be received at the
Office of the City Clerk, Topeka. Kansas.
up to five o'clock p m. February z, 1910.
for the construction of a bridge across
the Shunganunga Creek on Fillmore street
In said city as per plans and specifica-
tons on file in the office of the City Engi-
neer.
A certified check in the sum of $500
must accompany each proposal.
The Mayor and Council reserve the right
to reject any or all bids.
fSeaL] C. B. BURGE,
City Clerk.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
D. A. VALENTINE.
Clerk Supreme Court.
Se 1sM..

NJ IL 90.
Carl T. Suffer, Appellee,
vs.
The International Harvester Company of
America, Appellant.
Appeal from Graham County
AFFIRMED
Syllabus. BY the Court. Mason. J.
L On an appeal from an order grant
ing a motion for a new trial where the
sole ground upon which the trial court
based its ruling is held to be untenable.
less the record affirnatively. shows that
the motion ought to have been sustained
upon some other ground
2. Where an instruction is given that
the plaintiff cannot recover unless he has
proved a certain fact and verdict is
returned in his favor he cannot COM
plain of the giving of the instruction for
the result shows that he suffered no
plain of the failure of the jury to be
governed by it, for the error in that re-
spect, if any, is in his favor.
3. Although ordinarily pleading can
form to proof that was admitted over
objection, such an amendment may be
allowed for the purpose of preventing the
rendition of a final judgment against a
which has been supplied by his evidence.
4. In an action against the seller of
harvesting machinery for failure to de-
liver it with promptness. grounds for the
recovery of special damages are suffi-
GENTLY shown, as against a demurrer, by
allegations in the petition that at the
time the order for the machinery was
tween the parties that it was intended
for use in cutting particular field of
wheat; that both knew that delay in de-
livery would result IN loss to the buyer
the wheat: and that such result actual
" followed.
Johnston. c. J.. Burch. J., Smith. J..
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
First published in The Topeka sta.e
Journal January s, 1901

Office of City Clerk. Topeka. Kansas
January T. 1910.
Sealed proposals will be received at the
onice Of the City Clerk. Topeka. Kansas.
up to five. O'Clock p. m, January II, 1870
for the installing of a pumping station on
East Fairchild street in Sewer District
No. ID as per plans and specifications now
on file in the office of the City Engineer.
The Mayor and Council reserve the riglpt
to reject any or all bids.
A certified check in the sum of 500 must
accompany each proposal.
[SeaLl c. B. BURGE,
CITY Clerk
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
NOTICE

NOTICE.
3 Notice is hereby given that the stock
ISOLATION of Topeka, Kansas, will hold
their annual meeting in the Office of the
said association. in the city of Topeka,
the 18th day of January 1910. for the
purpose of electing board of directors
other business that may properly come be-
fore said meeting.
JOHN Q. ROYCE, Secretary.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
D. A. VALENTINE,
Clerk Supreme Court.

No. 1924.
Fannie Lee McInturff, Appellee,
The Western Union Telegraph Company,
a Corporation, Appellant.
Appeal from Scott County.
AFFIRMED.
Syllabus. BY the Court. Mason, J.
1. Where telegram to a married wom-
an living with her husband, announcing
the death of a relative, is negligently de-
livered two days late and with the date
changed SO thatit seems. to have been just
sent, thereby causing her to make fruit
less journey in an effort to attend the
funeral she is entitled to compensation
for her trouble and inconvenience al
though she loses no time excepting such as
the service of her husband, and he pays
all the expenses incurred.
2. In such a case where the compen-
satory damages are necessarily small but
the circumstances justify a considerable
award of smart money, and the jury make
dict will not be disturbed on account of
the inclusion of a small sum for loss of
time which was inadmissible on that ac-
count but might properly have been al
lowed for trouble and Inconvenience.
B. Where a telegram is sent to married
woman, and by reason of delay in its
delivery and change in its date she
makes an unnecessary journey, she is
entitled to recover the charges made for
sending it, for which the sender has been
reimbursed, and for delivering it, al
though these amounts were paid for her
by her husband at her request.
l. The facts in the case held to authorize
the award of punitive damages.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
No. 16, 2SS.
C. B. Daughters, Appellant,

No. 16, 2Ss
C. B. Daughters, Appellant,
The Board of County Commissioners of
Riley County ct al. Appellees
Appeal from Riley County.
AFFIRMED.
Where the proprfetors of a town site
in the recorded plat thereof designate a
Resignation dteie ' IS Sufficient to indicate an
Intention to dedicate the block to a pub
lie use. but is insnffcient to To- aesS as1ae
ture So far represents the public that 1t
may by a proper act designate and De
block shall be- devoted. If no private
rights have intervened.
All the Justices concurring.
Atfest: se1'' D. A. VALENTINE, .
fSeall Clerk Supreme Court.
No. 1872
Lee A. Howerton and Amelia Howerton,
Appellees.
Kansas Natural Gas Company, Appellant.
Appeal from Allen County.
AFFIRMED.
Syllabus BY the Court Benson.
An OiI-and-gas lease reciting a consid-
Grafton of 81 10 gave to the lessee the ex-
elusive right ito enter upon, operate for,
and procure oil and gas from 17S acres Of
provided that II a wei was not drilled on
the premises within one year the lesseess
right SQOulQ Ces1sc~ 1NO <1iIcI41ctiNC II
payment of rent was given. The plaintiffs
were to have gas for domestic use, II
found in quantity sufficient to justify the
expense Of marketing and were to be
paid 5000 per year during the time gas
should be marketed from each producing
ons we vas agf egetfsa Msna the
as provided: the plaintiffs drew a supply
therefrom for domestic use, and the de
fendant. also used 1t for fuel to furnish
power in drilling two wells on other
leases. No other use was made of the
we'll; gas was not sold or marketed from
it: no other wells were drilled; and the
lessees never received anything except the
100 and gas for their home Several
other gas wells were drilled on adjacent
lands by the defendant and by other par
ties, from some of which gas has beer
and is being marketed. More than foui
years after this well was completed the
lessees served notice of forfeiture and
commenced an action to cancel the lease
1t is held, % That the contract contem.
plated that the well should be operated
and kgas marketed therefrom In a reason
able time, and that other wells should b
drilled and operated with reasonable dill
gence to utilize the lease: 90 That fou
years delay in the circumstances shown
was unreasonable; 90 That the lessor!
have no adequate remedy in damages and
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
LEGAL

viewed and are held sufficient to sup-
port the judgment.
All the justices concurring.
Attest: D. A. VALENTINE.
lSea4 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
d. A. VALENTINE,
Clerk Supreme Court
No. 16, 238.
S. F. Broadie, Appellee,

No. L. 2SS
s. F. Broadie, Appellee,
c. w. Carson, Appellant.
Appeal from Clark County.
AFFIRMED.
Syllabus. By the Court. Johnston. G. J.
1. The return made by the sheriff up
on notice of a proposed forfeiture of
a school land contract was incomplete and
of chapter s7s of the Laws
the words WI cancelled, December
%, 1885 were written across the
record of the school land sale and pa
rol proof was admitted showing that le-
gal service of the notice had been actu-
ally made. Held that the proof was prop
erly received and that it was sufficient
to show valid forfeiture.
2. One who purchases forfeited school
land and brings his action to quiet his
title as against those holding under the
original purchase is not required by any
rule of equity to pay to the original pur-
chaser or his assignee the amount paid
to the state by him upon the original
purchase.
8. In a case tried before the court
where incompetent testimony is tenta-
lively received subject to reconsideration
when the case is finally decided the pre-
sumption must be that the court ignored
all evidence to the Introduction OF which
objection should have been sustained.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
LEGAL.

Graves, J., and Benson, j.. concurring,
Porter, J., dissenting.
A true copy.
Attest: D. A. VALENTINE,
ISeaD Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
LEGAL.

the lease should be terminated.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
tSeaLI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
wANTED-ro RENT.

WANTED-By man and daughter about
February 1, three unfinished rooms in
well located modern house with board pre-
ferred. Address T. L., care Journal.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11

No. 1922.
Sylvan NewhaIl, Appellee,
vs.
Elbridge Chase, Appellant
Appeal from Brown County.
AFFIRMED.
Syllabus. BY the Court. Mason, j.
A judgment viii not be set aside on
account of the rejection of evidence
which has only an indirect bearing upon
the issue decided by the jury, where 9TH
er evidence of the same general effect.
although less convincing. was admitted
and was not contradicted.
All the Justices c0ncurrtng.
A true copy.
Attest: d. A. VALENTINE,
ISeaI1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
No. 1924.
Lizzie Anderson, Appellant

No. 1924
Lizzie Anderson, Appellant.
Charles Has1ett, j. NJ. Amis and Perry
Davis Appellees.
Appeal from Shawnee County.
REVERSED.
Syllabus. By the Court. Porter, j.
l. Where party desires to appeal from
a Judgment of a city court and within
ten days from the rendition of the judg-
ment files with the clerk of such court
a bond conditioned required by law,
with sufficient surety. he has done all
that is required Of him to perfect his
rights by the failure or neglect Of the
Judge of such court to approve the bond
until after the time for appeal has ex-
pired.
2 Where the judgment appealed from is
rendered in a justice court the filing of
a sufficient bond with the justice is all
that is required to perfect the appeal.
An the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
[SeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
No. Is. 236.
Dennis D. Doty. Appellee,
Horace ]. Evans. Appellant.

No. 16, 236.
Dennis d. Doty, Appellee,
VS..
Horace J. Evans, Appellant
Appeal from Finney County
REVERSED.
Syllabus. BY the Court. Benson, ].
A tax deed issued on a compromise of
delinquent taxes contained among 9TH
er recitals statements showing that the
land was bid in by the treasurer at the
tax sales of 1893 for the taxes of 1892.
amounting to $7.7s that the certificate
was assigned in January, 1898. upon the
authorization of the board of county
commissioners for $1,000 and that the
taxes Of 1897 amounting to $5.S3, were
paid by the purchaser. The conveyance
was made in due time reciting a consid-
Grafton of $3543, but without specifying
further the years for which taxes were
included. The deed had been of record
for more than five years 1t is held:
That the deed does not show that the
assignment of the. certificate was made
for more thanNthe legal taxes and inter-
est thereon, for it may be presumed that
the intervening taxes of 1893, 1894, 1895.
and 1896, remained due and unpaid at
the date of the compromise, and were
included in the amount stipulated for the
assignment of the certificate.
All the Justices concurring.
A true copy.
Attest: - D. A VALENTINE.
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
No. 16, 256.
J. w. Snyder, Appellee,

A C. Wheeler, Appellant.
Appeal from Butler County.
AFFIRMED.
Syllabus. BY the Court. Benson, J..
1. The pleadings are examined and it is
held that the new matter in the reply
was not demurrable on the ground that
it did not state a cause of action, and
that it should not be considered de-
parture in pleading; but if IT were so
considered, the substantial rights of the
defendant were not affected thereby.
2. The findings and evidence are re-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
No. 16, 293.
v. Jaggar, Appellee,

No. 1928.
V. Jaggar, Appellee,
VS..
Mary c. Plunkett ct al, Appellants.
Appeal from Logan County.
AFFIRMED.
Syllabus. By the Court. Johnston. e. J.
l. 1t is not necessary to the status of
a mortgage in possession that possession
of the land shall have been taken under
the mortgage nor with the consent of the
mortgagor.
2 1t is enough that possession be
peaceably and legally taken and one who
first takes possession under an invalid
tax deed and afterwards purchases a
subsisting mortgage is not precluded from
thereafter continuing the possession first
taken and claiming the rights of mort
gagee in possession.
g. A mortgage in possession may bring
an action against the mortgagor, or one
holding under him, to compel him to
redeem within a reasonable time to be
fixed by the court and the court may
provide in its decree that if he fails to
do so his right of redemption shall be
barred. Henthorn VS.. Security Co., 20
4 4 fact may be established by in
competent evidence. if material where
it is received without objection.
All the Justices concurring.
A. true COPY. .-r..s.ss .ss.
Attest: D. A. VALENTINE,
ISeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11

No. 16, 264
Nellie Rullman. as Guardian, etc, APP
pellee,
VS..
Louis Rullman, Appellant
appeal from Doniphan County.
AFFIRMED.
Syllabus. By the Court. Johnston. G. }.
l. The arrival of a ward at majority
terminates the guardianship except for
the purposes of accounting and settle
ment with the ward.
?. One to whom contract right has
been transferred may bring and MAIN
tain an action thereon although he may
have no beneficial interest in the same.
g. Defendant has right to insist that
an action against him shall be brought
by the real party In interest as the stat
ute provides but the purpose of the stat
ute has been attained if defendant Is not
shut out from denfenses and counter claims
and will be fully protected by the judg-
ment from any further liability on the
same cause. So.
I. Under the testimony in this case it
cial interest in the claim sued on had
vested the plaintiff with the right to
bring the action and that the beneficiary
was as fully estopped by the judgment as
If she had been party to the action.
8. Harmless error does not justify the
reversal of a Judgment.
6. The testimony in the case examined
and held to be sufficient to sustain the
findings and judgment.
All the Justices concurring.
Attest; Is. A. VALENTINE.
ISeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
LEGAL.


this state without the Intervention of the
probate court, except to record the will.
when administration upon the estate
of the testator has been granted in this
I. A foreign executor acting under tes-
tamentary power has standing in
fair and just contract to convey merely
because the land has risen in value since
the contract was made; and a decree will
CURED while the vendor was wrongfully
in default although he takes portion OF
the proceeds of the sale in trust for minor
All the Justices concurring.
Attest: D. A. VALENTINE.
lSeaD Clerk Supreme Court.
No. 1921
Western Grocer Company. Appellant.
P. B. Aneman and v. May Alleman,
Appellees.
Appeal from Miami County.
Syllabus BY the Court Mason. ].
l. The grantee Of a deed from one who
who appears by the record to be its owner
because a. deed previously executed has
not been recorded, is not entitled to the
purchaser, where the only consideration
for the conveyance to him is the discharges
of an antecedent Indebtedness.
2. The application of this rule is not
prevented by the fact that the grantee
surrenders past due unsecured note to
it's maker, where such maker is a party
pass no title.
8. The evidence. being wholly in writ
ing, examined and held to require the
everything of two motions, one to dissolve
an attachment, and the other to release
property from its operation.
All the Justices coneurrIng-
Attest: d. A VALENTINE.
ISeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
SHOPS.
uNnERTaKrNo.

L. NJ PENWELL. funeral director ana
embalmer. First class service. reason
able prices. 81 Quincy D. Both phones ~
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
PICTURE FRAMING.

FRAMING, regiIding, mat making, mounl.
ing done by J. D. Sullivan "a w. Elghlh
street Packing. shippinK etc.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11

No. lie, 263.
. James. A. Drake, Appellant.
vs..
I. NJ vickery, Appellee.
Appeal from Cowley County. '
Syllabus. BY the Court. Benson, ].
In an action for malicious prosecution
where the defense is mainly based upon
the advise of counsel, it is error to direct
a verdict for the defendant if the evil
dence shows that a substantial question
of fact was presented whether he had
stated to counsel. whose advice Is re-
lied upon, all the material facts known
to him. -t.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeaLJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
BUSINESS CHANCES.
FOR SALE OR WILL TRADE. FOR
LAND

FOR SALE-$15.O 900 grist mill to sell or
trade for land, mill in eastern Kansas.
harness. shop. to sell cheap. for cash; gro
Gerry stores In Topeka, $1,000 to 5000 cash;
drug stores in different towns, 5000 to
$l9, 900; general stores in different towns
TO sell and trade; acre tract in Topeka,
5000 part town; farms to sell and trade,
houses and lots
A. L. Furman, 81 Kan. ave, Topeka, Kan
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11
No. 1924.
Lilly Campbell. Appellee,


No. 1924.
Lilly Campbell. Appellee,
't2 Chase Brown, Appellant.
Appeal from Neosho County.
REVERSED.
Syllabus. BY the Court. Benson,
/. A person having in his possession
at his home a bottle of wood alcohol OBJ
tanned the previous day invited neighbor
to drink with him from Its contents. sup
posing It to be fit to drink, and to induce
compliance with his invitation, said: 1t
is good, got it of Chase Brown. Two
days afterward, having taken several
drinks of the alcohol meantime, the per-
son died. and the evidence tends to show
that death resulted from wood alcohol
poisoning. In an action by his admins
tratrix for damages based upon the al
legged negligence of Brown in selling
the wood alcohol without a proper label,
it is held that the admission in evidence
of this statement of the deceased was err
TOR, and that under the issues and evil
dence 1t was prejudicial.
9 The words quoted were not Spon-
taneous exclamation; they were not con-
comitant with the principal act (of OBJ
tanning the alcohol; nor part OF 1t,
and thew did not illustrate. explain nor
characterize the act. but simply related
the n1,rchase as a past event-a narra-
tive of a completed transaction.
All the Justices concurring.
A true copy. 1-,r,~,,, e..
Attest: u. A. NALENI1Nf,
TSeaI1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-01-11

1-,,a ~. ~ No,l6, 20. c.aa,x
pellant,
VS..
The City of Concordia. Appellee.
Appeal from Cloud County
REVERSED
Syllabus. BY the Court. Johnston, c. J.
build telephone line in and over streets
and highways is directly granted by the
are poweri les to to- prevent such use. The
council has the authority to provide by
ordinance reasonable rules. regulating the
purpose by defining where and in what
manner a telephone company shall erect
and maintain its fixtures.
: 2. 1t is the duty of a telephone COM
pany contemplating the exercise OF the
right granted by the state to ask the
able regulations of the exercise of the
right before placing any of their poles
public grounds of the city but if the
mayor and council refuse to prescribe
such regulations upon on application alton the the
streets and alleys in such. manner as
shall not incommode the public in the
use Of the streets ae aeys 5o So
to treat the structures SO erected as a
All the Justices concurring.
Attest: d. A. VALENTINE,
ISeal1 Clerk Supreme Court,
No. 1926. So
Charles NJ. Brown ct al, -Appellees,
Joseph schenider Appellant
Appeal from Saline County.
AFFIRMED.
Syllabus. BY the Court. Johnston, c. J:
!. 1t is not essential to the existence OF
a natural water course that the source OF
supply should be living water. 1t may be
surface water collected on large water
shed from rains and melted SHOWS which
concentrates and cuts for itself a well de-
fined channel and regularly discharges
through such outlet. Nor is it essential
that there should be a constant and con-
tinuous flow of water. The supply is suf-
ficiently permanent where, as in this case
the water is concentrated and flows with
some regularity during the heavy rains
which ordinarily occur in the region.
All the Justices conCurring.
A true copy.
Attest: d. A. VALENTINE,
ISeal.1 Clerk Supreme Court.