davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
No. 1878.
w. H. Jones, Appellee,

w. H. Jones, Appellee,
Williamsburg City Fire Insurance Com
pany, Appellant.
Appeal from Franklin County.
AFFIRMED.
Syllabus BY the Court. Buich. ].
1. When an application for change
cation of the district judge has been
formally presented and fully considered
applicant does not waive the error by
neglecting to interpose an objection to
going to trial when. the case is reached
2 A stipulation that a cause shall be
submitted to the court and the same jury
that tried a companion case, upon the
same evidence and instructions, verdict
to be returned and Judgment rendered
the same as if all the steps of a trial
had been taken, does not waive the error
of the court previously committed in de-
nying an application to change the venue
because of the disqualification of the
5. If upon appeal to this court the
record of the proceedings shows with
reasonable clearness that the Judgment
rendered expresses the only result which
could be rightfully reached, the defeated
party has not been prejudiced in his sub
stantial rights because his motion to
change the venue was denied and he was
obliged to go to trial before a disqualified
4. Generally. prejudice will be presun-
ed from the erroneous denial of an applf-
f faeio NATURALIZATION Of the district Judge
but the PRESUMPTION is subject to the linn
itation that it must appear from the
record that there is a substantial contro-
yersv to be determined, the result OF
which may be determetally affected By
fhe officiating of the objectionable Judge
s. Under the facts stated in the opin-
| ions it is held that the error of the tria
court in refusing to change the venue OF
| this case is not sufficient to warrant q
| Judgment of reversal
Johnston. c. J., Mason, J., and Graves
J.. concurring.
Smith, j.. and Porter, J., dissenting
Benson, J., not sitting
Attest: D A VALENTINE.
ISeaIl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
No. 1s. @4.


George w. Seaman, Appellant
Appeal from Brown County.
REVERSED.
Syllabus. BY the Court. Benson,
l. Where a stock of merchandise is
sold and transferred in bulk by the owner
to another person, after it has been as
seSsed for taxation, and before the taxes
thereon are paid, without retaining suf-
ficient to pay the taxes thereon the
statute fixes a lien upon the stock there
for. tGen. Stat 1903. Sec 9236.)
2 The failure of the county treasurer
in such a case to issue tax warrant at
lien.
3. The fact that taxes upon other prop
erty of the former owner Of the stock so
transferred are included in the gross sum
for which the warrant was issued against
him, does not make void a levy upon a
part of the stock for the collection of
taxes due thereon.
4. The purchaser of a stock of goods
subject to a lien for taxes, under the stat
ute referred to, must pay or tender the
taxes due thereon before he can main
tain replevin for part of the same stock
levied upon under a warrant for the col
lection of such taxes.
ALI the Justices concurrlng.
A true copy.
Attest: D. A. VALENTINE,
ISeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10

No. 1896.
NJ. F. Sickley, Appellant,
The Board of County Commissioners OF
the County of Allen, Appellee.
Appeal from Allen County.
AFFIRMED.
Syllabus. By the Court. Mason. j.
A statute requiring assessors to make
an annual report Of the number of in
habitants in their, respective districts is
not superseded by q later act requiring
them once in ten years to make returns
showing among other things the age, sex
color and nativity of each inhabitant.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[Seall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10

No. 16,S1S
The Board of County Commissioners of
Cheyenne County. Kansas, Appellee,
Solomon, Walker ct al, Appellants
Appeal from Cheyenne County.
REVERSED.
Syllabus. Ry the Court. Johnston, e. ].
l.. An affidavit of a party who applies
to have a Judgment opened up and that
he be let in to defend verified before his
attorney is irregular and voidable but is
not void and hence it may be amended
by a proper verified ton and when the
amended affidavit is sled it will relate
back to the original affidavit
2. Any. one whose rights are affected
by Judgment rendered without other
service than by publication is entitled
to have the. Judgment opened up when he
complies with the provisions of section
SO of the code whether or not he was
named as defendant in the action.
8. The fact that he may have chal-
lenged the validity of the service and the
jurisdiction of the court to render any
Judgment will not justify the denial OF
his application to have the judgment
opened up and for an opportunity to set
up his rights and defenses.
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, 1911-01-10
No. 18Th.
William ]. Wildin, Appellant,


G. NJ Duckworth, Appellee.
Appeal from Reno County.
AFFIRMED.
Syllabus BY the Court Smith,
1. An action was brought on promis-
sorry notes and to foreclose a chattel mort
gage given to secure the payment there
of, Judgment was rendered for the amount
of the notes and interest and for the
sale of the personal property and the APP
plieatiop of the proceeds to the payment
of the costs and judgment. Thereafter
a general execution was obtained by the
judgment creditor and delivered to the
sheriff to collect the amount of the judg-
ment. The sheriff levied upon certain
real estate of the judgment debtor for
that purpose. An action was brought by
the Judgment debtor to enjoin the sale
of the real estate on the ground that
the personal property mortgaged as Sc
curity should be first sold and applied
upon the debt. A temporary injunction
ment creditor the temporary injunction
was set aside and a permanent injunction
denied Held, not error.
, In such case the judgment debtor is
entitled to a general execution upon the
money Judgment and is also entitled &c
an order of sale, or special execution, for
the sale of the mortgaged property, and
, he may, at his option. first proceed to
the sale of the personal property and
the application of the proceeds to the
payment of the Judgment and have a
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
No. 1881.
Ella McMahan, Appellee,

S. S. Noble ct al, Appellants.
Appeal from Sedgwick County
At'FIRMEn
Syllabus. BY the Court. Mason j
1. An action to quiet title to real estate
may be maintained In the name of one
who holds merely a naked legal title,
without beneficial interest
2. A judgment based upon service by
publication can not be held to be abso-
lutely void upon a showing that the af-
fidaVit for publication. although good
upon its face, and bearing the signature
of the purported affiant and the turat
of notary public, was not in fact sworn
to.
3. Where the buyer of real estate
causes the deed to be made to a person
having no beneficial interest who con-
veys to him after. procuring a decree
quieting title he is bound by an order
vacating the decree although made with
out notice to him, and can claim no
rights as an Intervening innocent pur-
chaser.
All the Justices concurrlng.
A true copy
Attest: D. A. VALENTINE,
tSeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
LEGAL.
No. 1853.
H. c. Mayse, Appellant,


Jerome Belt. Lawrence E. Belt ana Will
liam Belt, Appellees.
Appeal from Clark County.
REV ERSED.
Syllabus By the Court Burch. j.
Section 1, chapter 373, Laws 1907, linn
iting the time within which purchaser
of school land, or the assignee of such
purchaser, may bring an action to
recover school land or to enforce his
right to or interest in the same when a
forfeiture thereof has occurred, was in
tended to apply only in cases where there
has been an attempt to forfeit the right
of an original purchaser and the land
has been sold to a new purchaser.
All the justices concurrlng.
A true copy.
Attest: D. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
D. A. VALENTINE.
Clerk Supreme Court
No. 16,761.
B. c. Potter ct al, Appellants,


P. ]. Con1ey ct al, Appellees.
Appeal from Allen County.
REVERSED.
Syllabus. By the Court. Johnston, G. }.
l. A mechanics lien is purely a crea-
ton of statute and those claiming such
a lien must bring themselves clearly
within the provisions of the statute au-
thorizing it.
2. The statute gives a lien to anyone
contracting with the owner of land or
his agent for materials furnished or work
done in repairing or improving build
ing thereon and where the owner rents
his property to another and StipulateS in
the lease that improvements may be made
on the property by the lessee and the ex-
pense thereof deducted from the rentals
to be paid by him the lessee may be
regarded as the agent of the owner
and those idoing the work and furnishing
the material for improving the property
will be entitled to lien on the interest
and estate of the lessee and the owner.
3. Under the circumstances of the case
the term repairs as used by. the parties
In the lease is held to be intended to
cover and does cover improvements made
by the contractors.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
No. 17,4o7.
J. H. Wendorff, Plaintiff,

William Dill, Defendant.
Original Proceedings in Quo Warranto.
JUDGMENT FOR PLAINTIFF.
Syllabus. BY the Court Mason, j.
trict court are to be chosen for a full
term in any of the judicial districts of
the state is as to that office in every dis
trict a regular election within the mean
ing of the constitutional provision that
'n case of vacancy in any judicial Of
flee, it shall be filled by appointment of
ton that shall occur more than thirty
days after such vacancy shall have hap
pened."
All the Justices concurring.
A true copy.
Attest: .. A. VALENTINE,
[Seal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
NOTICE.
~~~~~~~oNNNNSC@o

NOTICE.
Notice is given that the stockholders of
the Aetna Building & Loan Association
of Topeka, Kansas, will hold their annual
meeting in the office of the said Associa-
ton in the City of Topeka, Kansas, on
Tuesday, the oath day of January, A. D.
1911 at 10 o'clock A. M of said day, for
the purpose of electing a Board of Direc-
tors for the ensuing year. and to trans
act any other business that may properly
come before said meeting. All proxies to
with the secretary of said Association on
or before noon of January II, 1911.
By order of board of directors.
JNO. Q. ROYCE. Secretary.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
D. A. VALENTINE,
Clerk Supreme Court.

No. 16 $50.
Charles A. d. Jacobus, as Superintendent
of Public instruction of Franklin
County, Kansas, Appellant,
The Board of Education of the City o.
OtcIWa, Appellee.
Appeal from Franklin County.
AFFIRMED.
Syllabus. BY the Court. Johnston. c. J.
]. Under General Statutes 1909, section
1894, authorizing boards of education of
cities of the second class to attach al
5acent territory to the city for school
purposes, the word adjacent means lying
near, and territory which does not touch
the city limits but which does adjoin the
city school district and is so close to the
city that pupils residing thereon can
conveniently attend the city schools may
be attached if the boards deem the an
nexation to be for the best interests of the
schools of the city and of the residents
of the territory seeking to be attached.
2. Only such questions as have been
presented in the trial court are open for
review in the supreme court.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
[Seall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
No. 1884
Maggie A. Hank, Appellant,

Maggie A. Hank, Appellant,
Skip D Harlow ct al Appellees.
Appeal from Wyandotte County.
AFFIRMED.
Syllabus. By the Court. Burch, ].
Under the circumstances stated in the
opinion it is held that the district court
did not abuse its discretion in restrain
ing the plaintiff from taking the deposit
lions of the defendants before the trial
and that, aside from the justifiableness of
the order, the plaintiff suffered no. in
jury to her substantial rights in conse-
Quence of it
All the justices concurring
A true copy.
Attest: D. A. VALENTINE,
ISeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
LEGAL.

general execution for any deficieny. or
he may elect to take execution upon the
general judgment in the first instance.
All the justices concurrlng
A true copy.
Attest: d. A. VALENTINE,
lSeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
No. 1875
Charlie Hunt and Mabel Hunt ct al, APP
pellees,
No. 16,725.

No. 16T25.
Charlie Hunt and Mabel Hunt ct al, APP
pellees,
John d. Remsberg. S. ]. Christian and
T. J. Anderson, Appellants.
Appeal from Allen County
REVERSED.
Syllabus. BY the Court. Graves, )
A fraternal insurance associa ton is
sued a certificate of membership to a
man who named his wife as beneficiary.
1t was provided that in case the wife
died before he did, he might name an
other beneficiary, but If he failed to do
so, or if for any reason there was none
when the insurance should be payable.
the money should be paid to his legal
representative. The wife died; he died
some years after; an administrator of
his estate was appointed to whom the
association paid the money The insured
left three minor children who commenced
an action against the administrator and
his sureties to recover the money Held,
that they ought not to recover. The
administrator was the legal representa-
tive of the deceased within the meaning
of that term and was entitled to the
money as a part of the estate of the
insured.
Burch J., Mason, j., concurring.
Benson, J., concurring specially.
Johnston, G. j., Smith, j., and Porter,
J., dissenting.
A true copy.
Attest: D A VALENTINE
CSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
LEGAL.

pay the interest maturing on the mort.
gage and taxes. accruing on the land.
All the Justices concufiIng.
A true copy.
Attest: D. A. VALENTINE,
LSeal] Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
No. 1918
John E. Edwards, Appellee,
VS..
William H. Fleming and Alice Fleming,
Appellants.


John E. Edwards Appellee,
William H. Fleming and Alice Fleming,
Appellants.
Appeal from Lyon County.
AFFIRMED.
Syllabus. By the Court. Porter j.
/. The real test as to whether or not
possession of real estate beyond the true
boundary line will be held adverse is the
i lLCLllio ~ VIII Wulcn Inc party lakes anu
hoIds the possession 1t is not merely
the existence of a mistake but the pres
ence or absence of the requisite inten-
ton to claim title that fixes the character
of the entry and determines whether the
possession is adverse.
2. Among the prescriptions which usu-
ally obtain with respect to the possess
sion of real estate are these: % It is
presumed that the possession is in sub
one enters into possession under a deed
he is presumed to claim only the title
given him by his deed and that his pos
session is restricted to the premises
granted.
8. Where a fence is believed to be
the true boundary. and the claim of own
the intent to claim title exists only on the
condition that the fence is on the true
line the intention is not absolute but con-
ditional and the possession is not adverse.
(Scott VS.. Williams, IA Kan 44S9 If.
Intention to claim the land up to the
fence whether it be the correct boundary
or not the possession will be held adverse.
4: In an action to quiet title, the plain
tiff claimed under deeds to himself and
his immediate grantor. executed by the
defendants, which described the land con-
veyed as bounded on the south by a
hedgefence. The plaintiff and his grantor
had been in the actual possession of the
land claiming title up to the fence for
more than fifteen years during which
time the defendants continued to own
the land adjoining on the south, but
made no claim to land north of the hedge
fence. Held, that the evidence warrant
ed a finding of adverse possession by the
plaintiff, intention on the part of the
defendants to fix the fence as the bound
airy, and acquieScence on their part suf-
ficient to bar them from claiming that
the fence was not the true boundary.
5. Where it appears that the plaintiff
has acquired title by deed, adverse pos
session and acquieScence in the boundary
by the defendants. survey afterwards
made at the request of the defendants,
under the provisions of section 2275 Gen
eral Statutes of 1909, fixing a different
boundary to the tract claimed by the
plaintiff, furnishes no defense to an ac-
ton to quiet plaintiffs title.
s. A statutory survey may establish
the permanent boundaries between two
tracts of land but can not change the
title to the land.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
lSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
No. 1874.
F. Flagel, Appellant,

F. Flagel, Appellant,
VS..
The Board of County Commissioners of
Jackson County. ct al, Appellees.
Appeal from Jackson County.
AFFIRMED.
Syllabus. BY the Court Benson, ]
Where a land owner presented a claim
for damages for laying out a road
through his land and appealed from an
assessment and allowance thereof made
by the board of county commissioners,
and at the same time appealed under Sec
ton 2094 of the General Statutes of 1909
from the order establishing the road, an
order of the district court dismissing the
latter appeal is not erroneous.
All the Justices concurring.
A true copy.
Attest: D A VALENTINE.
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10

No. 1892
John Stinson, Appellant,
ALT Q. wooster and Lester A. Wooster.
Appelees.
Appeal f Fn1E hssfa5 County
Syllabus BY the Court. Smith. ].
cases, allegations of fact in a petition
should, as against general demurrer,
be taken as true.
All the. Justices concurring.
Attest: D. A. VALENTINE.
[Seal] Clerk Supreme Court
No. 1889.
Robert H. Harper, ct al Appellants.
James NJ. Harper, ct al, Appellees.
Appeal from Sumner County.
AFFIRMED.
Syllabus. BY the Court Graves J.
1. Where a court is requested at the
commencement of a trial to prepare find
lngs of fact and conclusions of law, it is
the duty of the court to comply with the
request, and if such findings state in
separate paragraphs the racts present
that they may be readily understood and
SO 1t will be apparent what conclusions
the court reached, and the facts upon
Will be deemed a sufficient compliance
with the request even though some of
of both fact and law, and do not in every
instance separate with technical accur-
acy the findings of fact from the conclu-
2. Where the testimony of a witness is
objected to upon the grounds that the
witness is competent and the evidence of
such witness is immaterial, it will not be
deemed material error to admit such evil
dence over such objection.
3. It is not error under section 5915 OF
the General Statutes of 1909 to permit a
party to testify in an action against an
administrator or executor, where the tes-
t1mOny contains no communication or
transaction with the deceased.
4. Where a witness is excluded from
giving testimony and none is given and
no offer of proof is made and the ques-
ton does not clearly indicate the nature
of the evidence which the witness is ex-
pected to give, such exclusion will not be
deemed erroneous.
s. In an action to set aside will, the
principal legatee died pending the ac-
| ton and a revivor was had in the name Of
| his widow who was the executor of her
deceased husband and his sole heir at
| law. She was called as a witness in the
action to set aside the will. Specific OBJ
| lection was made that the witness was
Incompetent because the widow of one
| of the original parties to the suit. Held
/ that she was not Incompetent as she did
not testify to any communication be-
| tween herself and husband during their
marriage.
| 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, 1911-01-10
GOOD EIGHTY

One of the best farms in Jackson Co.
All No. alfalfa land, % in alfalfa. s., 900
or more cash; long time on balance. Close
to town and school. G. w. Cox, Hoyt
ran. - =
FOR SALES room modern house and
~ lots on Monroe St, between 5th and
9Th. Price S. 700. 2149 White.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
POOL AND BILLIARD TABLES.

FOR SALE-New and secondhand bill
lard and pool tables and bowling alleys.
We lead the world in cheap bar fix
lures; easy payments. Send for catalogue.
Brunswick-Balke-Co llender Co.. 132Q-31
Main street. Kansas City. Mo
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
No. 16,775.
M. W. Potter, Appellant,


The Rorabaugh-Wileye Dry Goods Com
pany, Appellee.
Appeal from Reno County.
REVERSED.
Syllabus BY the Court. Johnston. c. J.
1t is the duty of one who projects or
maintains an awning over a street to
keep it from becoming dangerous to pc
destrians lawfully upon the street and
where it appears that an awning or a
part of it fell and injured the plaintiff
while passing along the street the burden
is cast upon the defendant to whose
building the awning is attached to prove
that all proper and reasonable care had
been employed in the construction and
maintenance of the awning.
All the Justices concurrlng.
true copy.
Attest: D. A. VALENTINE.
TSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-01-10
No. 1878.
Gustav Guldner, Appellant,

Gustav Guldner, Appellant.
A F. wl f GTamR Rice A eDHnfs.
AFFIRMED.
Syllabus. BY the Court. Graves. j.
A man and his wife were travelling upon
the public highway in a top buggy and
We're negligently struck by passing au-
tomobile. The wife injured. She at
the time was and had been suffering with
abdominal fibroid tumors. She was in
about ten days after the collision with
the automobile operated upon for the re-.
movaI of said tumors and died from the
effect of the shock produced by such OPP
Grafton. The husband commenced this ac-
ton to recover damages from the owner
of the automobile for the loss of the serv-
on account of the injuries received by her
from the automobile. Held that no dam
ages could be recovered in such action
on account of the operation.
All the Justices concurring-
Attest: d. A. VALENTINE,
TSeaI.1 Clerk Supreme Court.
No. 1878.
j. j. Robertson, Appellee,
Mary A Tarry, AAdministratrix Of the
estate of Ann Wiseman, deceased, APP
Appeal from Leavenworth County.
AFFIRMED.
Syllabus. By the Court. Smith. j.
1. Ann Wiseman executed three notes
on the The following dates: One ne. September
May l. 1906, each payable to the appellee.
and due one day after date. The maker
died Decem Der 81, 1905, and an admins
tratrix of the estate of the deceased was
appointed May IS, 1903. This action was
brought against the administrative July
l. 1909, in the district court of the coQn-
ty. Held, that the action was not barred
by section log of the executors ana al
illustrators act or by section IT of the
code.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
TSeal1 Clerk Supreme Court