davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
D. A. VALENTINE,
Clerk Supreme Court.
No. 17515.

No. 17515.
The State Of Kansas, ex rel John S.
Dawson, as Attorney General of the
State of Kansas, Plaintiff,
VS..
Earle. g. Eberhardt, as County Treasurer
Of Saline County, Kansas, Defendant.
original Proceedings in Mandamus.
JUDGMENT FOR THE PLAINTIFF.
syllabus. By the Court. Smith. J.
l. Where Illegal taxes are levied and
collected and the money is in the hands
or the county treasurer and thereafter d
valid curative act is enacted, which act
would legalize the relevy and collection
OF the same taxes even after the judg-
ment Of court of competent jurisdiction
IN an original proceeding in mandamus
will adjudge the distribution of such
money in the hands of the county treas
urer according to the provisions of the
original act as cured
All the Justices concurr1ng.
true copy.
Attest: D. A VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
LEGAL.
] = matter resting within the dIaeretion q

q. matter resting within the discretion o.
the court.
2 Where leave to sue a receiver is
granted ex parte, without specifving the
character of the action and repievin IS
brought for the property in his OFFICIAL
custody, the court may ordinarily in us
discretion, withdraw such leave and dis
miss such action
3 Where such a replevin action is dis
missed upon motion of the receiver fled
therein asking a withdrawal of the leave
to sue, and a dismissal of the replevin
action, the dismissal will not be reversed
because no evidence was introduced. or
because no formal order was made with
drawing the leave to sue.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE.
lSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 1886.
H J. Wilson, Appellee.

vs.
The Board of County Commissioners of
Edwards County, Kansas, Appellant.
Appeal from Edwards County
REVERSED.
Syllabus. BY the Court Mason !
/. A general statute authorized clerks
of the district court to retain all fees col
lected up to a certain amount fixed ac-
cording to population. This amount in
counties ranging in population from 5000
to 10,0o0 was fixed at $500. Later a special
act was passed allowing such officer in
Edwards county, which was within that
class, to retain fees to the extent of $500
and providing that If his collections fell
short of that amount the county should
make up the difference. Still later the
general act was amended. and as an
incident to the amendment. re-enacted,
the only change being the addition of
provision that where the fees fell below
the amount the clerk was allowed to re-
tain, as therein regulated, the deficiency
should be made up by the county. Held.
that the special act was not superseded
by the subsequent general act, but re-
manned in force and limited the compen-
sation of the clerk to $500.
Johnston, c. J., Burch, J.. Smith, J., Por-
ter, J., Benson J., concurring.
West, J., dissenting.
A true copy.
Attest: D. A. VALENTINE,
lSeal-l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 1879.
Alex Williams, Appellee,

Stephen c. Chase ct ux., Appellants.
Appeal from Anderson County.
AFFIRMED.
Syllabus. BY the Court. Mason. J.
1. Plaintiff conveyed city property to
defendant in exchange for warranty
deed to land and cash payment me
title to the land failed The plaintiff
sued for 81, 500, claiming that the land had
been taken at that agreed price. The de-
PENDANTS asserted that no price had been
agreed upon, and the jury in effect found
in his favor on that issue, but returned d
verdict against him. Held, that as throw
ing some light upon the reasonableness
of the plaintiffs contention that he had
taken the land at an agreed price II was
competent for him to give evidence OF
the value Of the city property he had ex-
changed for it, and that the evidence Is
not shown to have been prejudiclal to
the defendant upon the issue as to the
value Of the land.
All the Justices concurring.
Attest: d A. VALENTINE,
LSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 17017.
Joe L. Parker, Appellee,

JOG d dIhcIt App6IIee,
VS.
George Vaughn ct TX, and Dennis d.
Doty, Appellants.
Appeal from Finney County.
REVERSED.
Syllabus. BY the Court. Mason. J.
1. The rule that one must show an in
terest in the property in order to attack
a tax deed applies only to a party who
is seeking affirmative relief. One who
stand wholly upon the defensive may,
without proving his own interest. show
that a tax deed less than five years old,
upon which decree quieting title against
him is sought, is invalid as a conveyance
of title because of the irregularities not
showing on its face
3 Where an action to quiet title upon
a tax deed Is brought in the alternative,
against one who If alive owns the patent
title, and against his unknown heirs II he
is dead, the grantee in a conveyance ex-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
LEGAL.

west gate was seen or heard Nv ~. 80,
just as he saw the car. when some ~ ~ -.
exclaimed Look out!'' He testified thai
ne was going to cross the switch track
ana then ne could go north or south
before reaching the main track to an an.
other street. That he could either have
done that or stayed in there until thew
passed. That he made up his mind to
take that chance at his own hazard NJ
risk before he received any injury at am
Held, that the trial court properly sus-
tanned demurrer to plaintiffs evidence.
All the Justices concurring
A true copy.
Attest: D. A. VALENTINE.
lSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 1902.
J. L. Jones, Appellant,

The A. T. & S. F. Ry. Co.. Appellee.
Appeal from Usage County
AFFIRMED.
Syllabus BY the Court West, J.
A railroad crossing in a city was re-
ouired by ordinance to be guarded by
gates let down when cars were passing.
One of the gates was out of repair, but
plaintiff. who drove up from the east in
buggy with back and side curtains
down, saw that the other gate was down
at the farther side of the crossing, and
1t indicated to him that train was
likely to be passing at any time. He was
familiar with the crossing and knew that
he could not see a train approaching
from the south until his horse reached
the east switch track, but after hating
or stopping, and looking twelve feet
trot' until his horse reached the track
when It was frightened by a freight car
backed from the south, and plaintiff was
injured. No signal or warning save the
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
First published in The Topeka State
Journal July 4. 1911.l

NOTICE CONCERNING THE DEPOSIT
OF STATE FUNDS.
To Whom 1t May Concern:
The undersigned, the Board Of Treasury
examiners of the State of Kansas, hereby
gives notice that on the End day of Sep
TENDER, 1911. at o'clock D. M, sealed
proposals from the Incorporated banks do
ing business in Kansas, both national and
state, for the deposit of public funds of
this state will be received in accordance
Session Laws Of 1905. Said proposals shall
state the amount OF funds any bank de-
slres and the rate of interest it will pay
on daily balances and that said bank
viii qualify and faithfully perform the
duties required of it, provided the award
is made to such bank said Board of
Treasury Examiners reserving the right
to limit the amount of funds deposited
and to reject any and all proposals for
such funds.
a certified check in the sum of two hum
dred and fifty dollars, payable to the
State Treasurer, to be forfeited for thu
use of the state if any said bank falls to
comply with the terms of its proposal if
the same shall be accepted by the Board
of Treasury Examiners; otherwise to Be
returned to the bank.
All proposals shall be sealed and de-
posted with the State Treasurer on or be-
fore the End day of September, 1911 shall
have written thereon Proposal for De-
post of State Funds and shall not be
opened until the meeting Of the Board
on the date above stated.
Banks desiring to make bids may write
the State Treasurer for blanks.
Done at the Capitol in Topeka, this srd
day of July, 1911 (Signed@
w. r. STUBS, Governor.
Chas. H. SESSIONS, Secretary OF State.
w. z. DAVIS, Auditor of State
state Board Of Treasury Examiners
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 1858.
The State of Kansas, Appellee

The state Of Kansas, Appellee,
W. E. Jacket, Appellant.
Appeal from Kingman County
AFFIRMED.
Syllabus BY the Court. Benson.
1. Permission to edorse upon an IN
formation. when a case is called for trial,
the name of the court reporter VINO mere
" testified to the correctness of his re-
port of the testimony of witnesses given
at a former trial, and the name OF an
other witness whose testimony was given
in rebuttal, was within the proper dis
erection of the district court
2. The endorsement upon an 1n1orIla-
ton of the names of witnesses referred TO
in the above paragraph, afforded no
ground for a continuance.
3. Upon the trial OF a charge OF ih "
der By shooting, the clothing worn by the
deceased when killed, may, when ident1-
fled, be received as evidence tending TO
show the character and nature of the
wound, the manner and means of death,
and The proximity of the person using
the weapon to the one who is slain But
the spectacular parade of bloody gar
ments should not be permitted.
l. The voluntary statements of an &C
cused person whether made before or
after an alleged crime, which statements
in connection with other evidence tend to
prove guilt, should not be excluded be-
cause they are not part OF the res
gestae nor upon the ground that the &C
cused is hereby, in effect, compelled to
testify against himself.
s. An olfer of proof which includes
hearsay testimony of the witness, with
out which the proposed evidence appears
to be irrelevant to the issue, is properly
excluded.
6. Instructions concerning the right of
self-defense. given and refused. and re-
marks made by prosecuting attorney
in argument to the jury are considered
and held to be free from any error pre-
judicial to the rights of the appellant
All the Justices concuuing.
A true copy.
Attest: D. A VALENTINE,
lSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 1913.
f. G. Jones, Appellant.

r. IL Jones, Appellant
VS..
William Lampe, Appellee.
Appeal from Seward County
AFFIRMED
Syllabus. By the Court Johnston. G.. T.
l. The ruling in Neiswanger v. Ord,
81 Kan. 63, that "a tax deed over five
years old which recites that property was
originally bid in by the county treasurer,
that thereafter an individual paid him an
amount equal to the cost of redemption,
and that the purchaser afterwards paid
the subsequent taxes. is not rendered
void because it contains no recital that
the county clerk assigned the tax-saIe
certificate" is followed.
2. An appellee may secure a review of
an adverse ruling by serving a notice
upon appellant before the case is as
signed for final hearing stating that he
intends to present a particular ruling for
review. The notice should be served early
enough to afford appellant time to an
sWer appellee's contentious but, as the
notice Is not jurisdictional, delay in serv-
Ing it might justify an application for a
postponement of the hearing but would
not deprive the court of the power to re-
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE
loeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
D. A VALENTINE,
Clerk Supreme Court.

No. 1871.
Margaret Dixon and Anna Dixon, Az
pellees,
Mary Dixon, ct al, and Edward Flaherty.
ct al, heirs of w. F.. Flaherty,
Deceased, Appellants.
Appeal from Geary County.
AFFIRMED.
Syllabus. BY the Court West, ].
l. In constituting a deed of trust requir-
ing the disposition of property among
various persons, the rule favoring vested
rather than contingent Temainders does
not operate to change or subvert IAN
Suage and intention clearly expressed IN
such deed. In constituting such instruments
manifest intention is of first Importance.
2. In such deed of trust executed by
apart to the wife for her sole and sepa-
rate use and management certain land,
she to have and enjoy the entire rents
and profits derived therefrom unless she
in agreed to pay the taxes during the life
OF the wife and to pay off any incum-
Drance thereon; 1t further provided that
the husband, In consideration of one dol
lar, and the covenants and agreements
contained in such deed, granted, bar
gained, sold and conveyed unto the wife
this land, to have and to hold during her
life, II she should die intestate then II
should descend In equal shares to the
cflIdren OF the husband and wife. but
she should have the right to will the land
TO any one or more of such children
Held, that the wife, by virtue of these
provisions, had the irrevocable right to
say to which OF such children the land
should go at her DEATH and her testa-
mentary disposition thereof as provided
after the decease of her husband, was
valid.
All the Justices cencurrinE.
Attest. D. A VALENTINE.
lSeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 17035.
Ella Edison, Appellant.

No. 17035.
Ella Edison, Appellant
vs..
The Chicago, Rock Island & Pacific Rail-
way Company, a corporation, and Ed
Johnson, Appellees.
Appeal from Seward County
REVERSED.
Syllabus. BY the Court Smith I
1. Contributory negligence is usually a
question of fact for the determination of
a jury
2 Contributory negligence is a matter
of defense, and the burden of establish
ing it rests upon the party who asserts 1t
and not upon the opposite party. in the
first instance, to disprove it.
g. Unless it can be said that the evil
dence of a plaintiff seeking redress for in
juries to himself or another affirmatively
shows that the injured party was guilty
of contributory negligence, a demurrer
to the evidence of the plaintiff on this
ground should not be sustained
Johnston, C. J., Mason, J., Porter, J.,
Benson, j., and West, J., concurring
Burch, J., dissenting.
true copy.
Attest: D. A VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 1888.
Annie NJ. Greenwood, Appellee,

VS..
Ashford w. Greenwood, Appellant
Appeal from Riley County.
MODIFIED.
Syllabus. BY the Court Porter ]
Twelve years after the rendition of the
original decree in an action for divorce
the minor children of the plaintiff and the
defendant filed motion seeking a modi-
ncatlon OF the decree SO to provide for
their custody and education. Held, fol-
lowing Miles v. Miles, IS Kan. 676, that
the court had jurisdiction to entertain the
motion and to make such orders as were
necessary to protect the interests of the
children. But this was the extent of its
jurisdiction over the parties and the sub
ject matter of the original action. ana it
had no power to cancel or set aside a
contract between the parties respecting
lands set apart to one of them SO far as
such contract in no respect interfered
with the rights of the children.
All the Justices concurr1ng.
A true copy.
Attest: D. A. VALENTINE.
iSeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 1886
Agnes M. Fish and Anna NJ Phalen,
Appellants,


Agnes M. Fish and Anna NJ. Pha1en,
Appellants,
B. A. Poorman and Jacob Heer. Appellees.
Appeal from Riley County.
On Rehearing.
REVERSED.
Syllabus. BY the Court Porter J.
l. Where the issue to be determined by
the jury is the mental condition of a per-
son at a certain time, it is always com
petent to show previous acts of insanity.
delusion or mental arrangement unless
the previous conditions are excluded be-
cause they appear to be disconnected and
remote. Where the mental arrangement
or its cause is continuing or permanent
in character the objection of remoteness
viii not apply.
2. a non-expert witness may be per-
mitted to give his judgment as to the
sane or insane state of another's mind,
after having detailed to the jury the ex-
tent Of his opportunities to deduce cor
rect opinion and judgment thereon.
(HOward V. Carter II Kan. So.
3. Proof of a faint of insanity in the
family of a person is competent when
there is other proof of the fnsanitv of the
person in question.
l. The plaintiffs sought to show that
conveyance was procured by the undue
influence of the grantee. There was evil
dence which tended to show that the
grantor, a woman 81 years of age who
was IN i'll health, conveyed to her family
physician a farm worth $500 in consider
alton Of an Indebtedness she owed him of
less than $1,000. The court excluded evil
dence that the grdntOr ana grantee were
believers in spiritualism and frequently
met and talked over their religious be-
lief. Held that the evidence was compe-
tent for the purpose Of showing the rela-
tons which the parties to the conveyance
sustained to each other.
5. Where a deed to real estate duly
executed Is found among the papers Of a
deceased person who Is named as grantee
the presumption is that it was duly de-
livered and the burden of proving the
contrary rests upon the grantor or person
fWho claims that 1t was not delivered
Held, further, that an instruction is erro-
neous which charges that mere pre-
ponderance of evidence on the part OF the
grantor is sufficient to show that it was
not his intention to convey the land de-
scribed in such deed.
6. The heirs at law Of one who has
been treated by a physician may waive
the provisions OF the statute making q
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 1723S.
State of Kansas, Appellee,
Mollie Stewart. Appellant.
4 meal from IRA n Z lin County


AIollie Stewart. Appellant
Appeal from Franklin County.
AFFIRMED
Syllabus. BY the Court Johnston. c. }.
1. A ruling refusing to grant an app1ica-
ton for a change of venue because OF
the prejudice OF the citizens Of the coun-
ty VIII not be reversed where the de-
ctsion is based on conflicting evidence
as to the existence Of such prejudice.
2. The constitutional guaranty of an
impartial jury and the statutory pro-
vision that a juror may be challenged
who has formed or expressed an opinion
on an issue or material fact to be tried
are intended to secure for a defendant
a jury free from bias. prejudice or in
terest and the fact that a juror, who has
read a newspaper report Of an offense,
may, In answer to questions, state that
ne mas or has not an opinion, is not
necessarily conclusive as to his qualifi-
cation.
3 Whether what juror calls an opin-
ION dlsqualifies him IS a question Of fact.
70 be determined from his appearance,
manner. character of his answers, the
form of questions to which his answers
are given, and the source of his Informal
tt3n, ana from these, and perhaps other
Snlnss, the court is to determine whether
MS opinion is fixed and positive or only
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
D. A. VALENTINE,
Clerk Supreme Court.
No. 17057.
William B. Sutton, Appellee.

NO. IIUOI.
William B. Sutton, Appellee.
Martin Heinzle ct al, Appellees and
Richard J. Smith. Appellant.
Opinion in Petition for Rehearing.
REHEARING DENIED.
Syllabus BY the Court Mason. J
l. The rule that courts in constituting
a statute adopted from another state are
bound by previous decisions as to its ef-
feet rendered by the court of last resort
of that state, is subject to this exception
among others: The decision of the court
of the other state will not prevail over
contrary decision previously rendered by
the supreme court of the adopting state.
arising upon a statute substantially sim
liar so far as relates to the question in
volved and resulting from a different
view of some general principle Of law or
public policy.
All the Justices concurr1ng.
: true copy.
Attest: D. A. VALENTINE.
ISeaL] Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
10. 1eg07.

No 1897
The McNeal Machinery Co.. Appellant,
The Empire Brick & Gas Co. ct al. APP
pellees-
Appeal from Wilson County.
AFFIRMED
Syllabus b. the Court. Mason, J.
l. Whether claimant shall be per-
mitted to bring replevin for property in
the han1s of a receiver, or required to
seek a remedy IN the proceeding in which
the receiver was appointed Is ordinarily
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11

ecuted after the commencement Of the
action, by those who are the heirs If such
death has taken place, is in substantially
the same position as an original defend
ant.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE.
ISeall Clerk Supreme Courv.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 1883.
The State of Kansas, Appellee,
VS.
Jefferson D. Brown, Appellant.
Appeal from Ellis County.
A EtE1sT MINI
D. A. VALENTINE,
Clerk Supreme Court.

Jefferson D. Brown. Appellant.
Appeal from Ellis County.
AFFIRMED.
syllabus By the Court. Johnston, C.. ].
I. In prosecution for carnal knowl-
edge of a female under the age of eigh-
teen years evidence of anterior and sub
sequent acts Of sexual intercourse be-
tween the prOsecutrix and the defen-
dant may be received in evidence to show
the relations existing between the parties
as well as their disposition towards each
other
2 Evidence of such other acts are not ad-
m1tted to show other offenses but as
tending to show the offense on which a
conviction is sought and the testimony is
not rendered inadmissible because It may
tend TO prove the commission of other
Offenses
B. In a prosecution of this kind there
may be conviction on the uncorroborated
lieved by the jury
All the Justices concurring.
A true copy
Attest: D. A VALENTINE
ISealJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 17155.
State of Kansas, Appellee,

No. 17155.
State of Kansas, Appellee,
vs..
Frank Schneck, Appellant.
Appeal from Franklin County
AFFIRMED.
Syllabus. BY the Court Smith J.
/. Continuances are largely within the
discretion of the trial court and only
who IL apears that this discretion has
been abused in disallowing the applica-
for.
2. Alleged trial errors considered and
held not sufficient to require a reversal
of the Judgment.
Johnston, c. J., Burch, j., Mason, j.,
and Benson, J., concurrIng.
seuting.
true copy.
Attest: D A VALENTINE
lSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-07-11
No. 1000.
Obediah Banister, Appellant,
VS.
W. o. Falls and Blanche D. Falls,
Appeuees-


W. o. Falls and Blanche D. Falls,
Appellees.
Appeal from Cheyenne County.
AFFIRMED.
Syllabus BY the Court. Burch. J.
]. The record Of an unacknowledged
contract on the part of a stranger to the
record title to procure a reconveyance Of
tract OF land to one who has parted
with his title does not constitute notice
of the contract to a subsequent grantee
of the land does not constitute cloud on
the title Of such grantee and is not ad-
missible in evidence against such grantee
on the question Of the validity of his title.
2. An oral agreement between vendor
and a Vendee Of land which arrests con-
summation of the written contract be-
tween them until the vendor prOcures
deed to cure a supposed defect in his
title, which deed the vendor promised
TO obtain, is unenforceable under the
statute OF frauds.
All the Justices concurring.
A true copy. -
Attest: d. A. VALENTINE.
fSeaLl Clerk Supreme Count.