davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10

No. II, 201.
Timothy Collins, ct TX, AppeIlees.

~
The Mount Pleasant Oil and Gas Com
pany, a corporation, Appellant.
Appeal from Woodson County.
MODIFIED.
syllabus By the Court Johnston. c. J.
l. In an oil lease the lessons granted to
the iesseeS the exclusive right, for five
years, to enter upon tract of land and
drill for oil, for which a small cash con-
slderation was paid, and the lessees were
TO deliver in tanks, to the lessons, one
eighth or the oil produced and it was pro-
Vlded that IL oil In paying quantities was
discovered the right of the lessees to oper-
ate should continue as long as it was
abandoned for such purpose, the grant
should cease and be no longer binding on
either party. The lessees drilled five
wells, in which oil was found and cased
them but the lesSees claimed that the
prevailing prices of oil of the kind and
quality found did not warrant operation
and, so, the wells were capped and no
oil was ever pumped from them. In this
action, begun more than five years after
the execution of the lease, it is held that
the lessons were entitled to a cancella-
ton of the lease.
2. In the lease was provision giving
the lessees the right to remove any ma
chinery and fixtures which it might place
on the premises. Under this provision it
is held that the 1essees are entitled to
move the casing which it placed in the
wells drilled and which Il found could not
be operated with profit.
All of the Justices concurring.
A true copy.
Attest D. A. VALENTINE,
lSeaLI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10

under oath it devolves on the Opposing
party to prove that the agent had such
authority and neither evidence OF the
statements of the agent nor the fact that
he made that particular contract are SUI
ficent to establish his authority.
8. Proof that he was a claim agent with
authority to settle claims against the
company is not sufficient 10 establish that
he had the implied authority to contract
that the claimant should be employed IN
the service of the company for life or as
long as he might desire to work. Nor Is
the mere fact that the claimant was given
work for a brief time after the settlement
was effected sufficient to prove that the
agent was vested with authority to prom
Use him permanent employment by the
company.
All the Justices concurring.
a true copy.
Attest: D. A VALENTINE,
(SeaD Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10

NO. II, 10.
Eliza Behan, Appellee,

Eliza Behan, Appellee,
Metropolitan Street Railway Company,
Appellant
Appeal from Wyandotte County Dis
trict Court.
AFFIRMED.
Syllabus. BY the Court. Porter. ).
]. The removal of a cause from state
court to federal court does not so invest
the federal court with Jurisdiction of the
subject-matter as to preclude the plain
tiff from again suing upon the same cause
ions Of section % of the Code apply to an
action which has been commenced in a
state court been removed to a federal
court and has there failed otherwise than
upon the merits.
2. Where a written instrument has been
offered in evidence which the court should
have interpreted by proper instruction but
enormously submits it's Interpretation to
the jury and it clearly appears that the
jury has given to such instrument cor
rect Interpretation the error in submit
ting the question to the jury is not ground
for reversal.
8. Where a passenger of a street rail-
way sues to recover for personal injuries
alleged to have been caused by the negh-
gence of the railway company an an
swer which alleges as a separate defense
that the plaintiffs injuries were caused by
her own act in stepping from the car upon
which she was a passenger while II was
in motion sets up plea of contributory
negligence and invites an instruction upon
unless there is an absence of any PROOF IN
support of such defense.
Ali the Justices concurring.
A true copy.
Attest. d. A. VALENTINE.
ISeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
LEGAL.
No. II, Al.
The State of Kansas, Appellee,
George Lewis. AppelIa1


George Lewis Appellant.
Appeal from Cloud County.
AFFIRMED.
syllabus BY the Court. Burch, J.
1 Under Sec. $500, General Statutes OF
1909, providing that If a person under in
dictment or information be not brought
to trial before the end of the third term
OF the court in which the cause is pending
he shall be entitled to be discharged I'M
less the delay happened on his apphca-
ton or be occasioned by want of time to
try the cause at such third term, 1t is
not essential that application be speci-
flcally for delay in order to forfeit the
right to a discharge. 1t is sufficient If an
application on the part of the defendant
necessarily and directly cause the delay to
happen.
?. The word application as used in the
statute referred to signifies means to &C
complish end and denotes affirmative
action, not passive submission
3. In this case the defendant interposed
an objection to the authority of a quail
fled judge pro tenn to try him, under cir
cumstanceS rendering a postponement or
the trial beyond the term inevitable Held,
the delay happened on the defendants
application.
All the Justices concurr1ng.
a true copy.
Attest: D. A. VALENTINE.
[Seall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
No. II, 227.
The State of Kansas, Appellee.

w R. Nye, Appellant.
Appeal from Sumner County.
AFFIRMED.
Syllabus. BY the Court. West, J.
1. A suit to enjoin a land owner from
interfering with tie highway officers in
relieving a regull>- y laid out and open
highway from an accumulation of surface
water by cutting ditch through dixie
placed on adjoining land by such owner
may be broughL>by the county attorney in
the name of the state.
2. The power conferred by Gen. Stat
1909, Sec. 1885:
ITO enter upon any land adjoining or
lying near to said road, to make such
drains or bitches through the same he
may deem necessary for the benefit of
roads doing as little damage to said lands
the nature of the case and the public
good will permit
does not require that a ditch be extended
from boundary to boundary through the
land of given owner but authorizes it's
extension over such portion of land only
as may by the proper authorities be in
good faith deemed necessary.
All the Justices concurrlng.
true CODY.
Attest: D. A. VALENTINE.
ISeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
D. A. VALENTINE.
Clerk Supreme Court.
No. 1926.
J. Gilmore, Appellee,

w. K. Tanning, Appellant.
Appeal from Rush County.
REVERSED.
Syllabus. BY the Court. Benson.
1. Where the last day in the period pre-
scribed by statute for commencing an ac-
ton is Sunday, an action commenced on
the following day is not too late
2. Where one of two joint makers of a
promissory note makes payment thereon
shortly after the note becomes due merely
as the agent of the other, and with his
money, and at the same time states to the
holder that the money so paid belongs to
his co-obligor, for whom and at whose re-
quest he is paying it, such payment does
not affect the operation of the statute of
limitations as to himself-it being that of
the one for whom he is acting as agent
s. A joint maker of a promissory note
who delivered the money to the holder In
the circumstances stated in the above
paragraph, was not bound to declare that
the payment was not made for himself,
that being the natural implication from
his declaration that he made it for the
other and with his money; nor was he re-
CURED to warn the holder that the time in
which an action might be brought against
him would not be enlarged by such pay
ment.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
[SeaIJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
No. 1921.
Andy Hornick, Appellee,


Union Pacific Railroad Company, APP
pellant.
Appeal from Wyandotte County
REV ERSED.
SYLLABUS. By the Court Johnston. c. }.
l. In his petition plaintiff set forth a
written contract as he claimed it was
made and alleged that it was not in his
possession and he was unable to give a
copy of it. In it's answer defendant set
out a copy of the written contract which
differed materially from the one set out
by the plaintiff. In reply plaintih alleged
that the writing copied in the answer was
frauduIently procured and did not contain
all the agreements of the parties and he
then stated the terms of the contract as
actually made and asked a recovery under
it. Held that the fact that formal refor-
nation was not asked did not prevent the
court from determining whether the con-
tract signed contained all the agreements
of the parties nor from enforcing the con-
tract which was actually made
q Under section 112 of the civil code a
notification of pleading may be made by
an officer, agent or attorney OF corpora
lion without setting forth why it was not
made by the corporation itself or other
wise complying with the requirements Of
section 116 of the code.
8 a party who challenges the form or
sufficiency of a verified pleading should
attack it by motion before the introduce
ffou of the evidence is begun and an OBJ
lection made after the Introduction of the
evidence is ordinarily too late to be avail
able.
4. Where the authority of claim agent
of a railroad company to make a contract
embracing unusual stipulatons is denied
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10

n o. 4, U43-
5 F. Freemon, as guardian of the Estate |
of Hiram Moger. insane. Appellee.

20. ,O45-
5. F. FTeemon, as guardian of the Estate
OF Hiram Moger, insane. Appellee.
Hhoda Funk, Appellant
Appeal from Mitchell County.
AFFIRMED.
Syllabus. BY the Court. West. J..
l. In 1888 the PLAINTIFFS ward, In order
TO avoid the payment of note for $175.0O
given for patent fence machine and to
prevent his liability thereon from becom-
ing lien on his homestead, conveyed the
latter to his wife In a short time she re-
conveyed and soon thereafter departed
this life. In the same year he decided his
homestead to a daughter with the under
standing that she should deed it back to
him when the note should be out of the
way. He continued for more than fifteen
years to occupy the land, asserting and
exercising dominion over 1t. When re-
quested to reconvey, the daughter, fearing
that he contemplated remarriage, deliver
ed to him a life lease made out on a war
ranty deed blank which he supposed for
some time to be good deed of convey
ance In 1895 he was adjudged insane and
placed IN an asylum, symptoms or mental
unsoundness having been manifeeted as
Tar back as 1888. The daughter was shown
to have made numerous statements that
she did not pretend to own the land but
intended to deed it back. During the
fathers occupancy he placed valuable i'm
prOyementS upon the land, rented portions
of it at times and collected the rent, and
repeatedly offered it for sale. Held, that
the facts warranted a finding of adverse
possession.
grantor, his creditors could not have been
defrauded by his conveyance thereof.
3. Under the conditions and circum-
stances indicated such occupancy was not
in subserV1ence to the title of the grantee
4 The title fully vested by such adj
verse possession for the statutory period
can be quieted as against the daughter in
a suit by the fathers guardian
s. Such adverse possession and the OPP
Grafton of the statute of limitations Great
ed a title which can be used extensively
or defensiyely.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
fSeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
LEGAL.
Published in The Topeka State Journal
October 10. 19u-l
SUPREME COURT SYLLABI.
No II, 70S.
H. W. Schaake, ct al, Plaintiffs,

H w. Schaake, ct al, PialnunS,
VS.,
Joseph n. DoIley, ct al, as the State
Board, Defendants.
Original Proceeding in Mandamus.
WRIT DENIED.
Syllabus BY the Court Burch. J.
l. The business of banking is SO init
mately related to the public welfare that
it properly falls within the scope of the
police power of the state exercisable by
the legislature
2 Section 2, chapter Us. Laws 1911, re-
lating to the formation of private corpor-
ations and providing that the charter
board shall refuse bank charter If upon
examination it shall make a determination
against the public necessity of the bust
ness in the community in which it is
sought to establish the bank, is a valid
enactment under the police power of the
state.
3. Where equally meritorious applica-
tons for charters for several banks In
the same community are pending before
the charter board at the same time, and
the charter board determines against the
necessity for more than one bank, the APP
pIication first presented should be grant
ed.
All the Justices concurrlng.
A true copy.
Attest: D. A. VALENTINE,
ISeaU Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10

quotient is thereafter unanimously agreed
upon and returned, held that while such
procedure is not to be commended the
verdict finally agreed upon is not shown
to be a quotient verdict requiring its set
ting aside.
Johnston, c. J., Mason, J., Smith, ]. and
Benson, J., concurring.
Burch, J., Porter. ]. and West, J., dis
sentsng.
A true copy
Attest: D. A VALENTINE.
tSeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
No. II, 219.
John Ekblad, Adnr. ETC., Appellee,


John F. Hanson, Appellant
Appeal from Mcpherson County.
AFFIRMED.
Syllabus. By the Court. Burch, j.
/. In an action by an administrator to
recover upon a note and to forecloSe a
mortgage forming a part of the assets or
the estate in his hands for administration
the maker of the note and mortgage can
not defeat recovery on any of the Hollow
ing grounds: Car That the person appoint
ed administrator was not related to or a
creditor of the decedent and was appoint
ed in less than thirty days after the death
without citing eligible next of kin, VINO
took no part in the probate proceeding, TO
appear and take or renounce adm1n1stra-
ton; OBJ That the action was begun with
out an order from the probate court; (cl
That the money due on the note and
mortgage was not needed for the payment
of debts and one of the heirs desired them
to be set off to him by an order or DIS
tribution
2 A court rule requiring the note and
mortgage sued on in a foreclosure case 10
be filed before judgment is entered IS
waived by the confirmation of a sale
made under a judgment entered. before
the instruments were filed.
g. 1t is the duty of the court to require
taxes due on land sold at foreclosure
sale to be paid out of the proceeds OF the
sale although no provision to that erect
was inserted in the judgment
An the justices concurring.
A true copy. .-r.,
Attest: d. A. NALEN n f.,
ISeal1 Clerk supreme SOur|
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
No. 1925.
James O'Malley, Appellant,

Frank Townsley and J. S. McNIurtry,
Appellees-
Appeal from Hamilton County.
AFFIRMED.
SYLLABUS BY the Court. Mason, j.
Where no evidence is offered to the con-
trary the trial court is justified in sus-
flaming motion to discharge land from
an attachment, made by a stranger to the
action. on the ground that he is the real
owner although the record title is in the
defendant where the nsotion is supported
bv the affidavfts Of the claimant and the
defendant that prior to the levy the de-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
No. II, go.
Joseph S. Bunger, Appellee,


Lena Bunger. Appellant.
Appeal from Johnson County.
REVERSED.
Syllabus BY the Court Smith.
l. Inpotency, as a cause for divorce,
means an incurable defect, and not every
temporary or occasional incapacity, but
permanent and lasting inability for copu-
lation.
2. The existence of such a ground for a
divorce against an accused wife, suscep-
tibIe as it is, of certain determination by
expert examination, to which she offers
to submit should not be decided against
her unless such decision is supported by
the evidence of a physician who has made
such examination; the best evidence OBJ
tainable should, as in other cases, be re-
quired.
All the Justices concurring-
true copy
Attest: D. A. VALENTINE.
TSeaII Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
No. II, 21O.
George J. Downer, Plaintiff,


John M. Schmidt, Defendant.
con appeal of Florence d. Whitney v w.
H. fuller and Mary L. beaverton on
cross petition, Appellant)
Appeal from Hamilton County.
AFFIRMED.
Syllabus. By the Court. Johnston. r. ].
l. In constituting a tax deed the in
tention and effect are to be collected from
the whole of it and, if term used is re-
pugnant to the other parts Of the deed,
and it is clear from a reading of the entire
instrument that the term was mad
vertently used, 1t may be rejected and
effect given to the manifest intention OF
those who executed the tax deed.
. A tax deed, which had been OF record
more than five years, contained one re-
cital that the land was sold in September
of a certain year for the taxes of that
year but other recitals satisfactorily
showed that the first date was cleri-
cal error and that the sale was made for
the taxes of the preceding year, Held,
that the tax deed is not void on its face
by reason of the error
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE.
(SeaI Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
No. II, 301.
The State of Kansas, Appellee,


Freeman H. Tfllotson, Appellant
Appeal from jackson County
AFFIRMED.
Syllabus BY the Court Mason. }.
/ Where the right to the custody OF a
child is tried by a court of this state, ana
a judgment is rendered for one OF the par
ties upon the ground that judgment pre-
viously rendered in another state IS con-
trolling the fact that such foreign 1udg-
ment is subsequently reversed does not OF
itself affect the binding force OF the han -
sas Judgment, which is conclusive upon
the parties until it is set aside or super
seeded by a later Judgment
?. Where in an action Tor the c9stouy
of a child decision is made that the de-
PENDANT is entitled to retain the custody.
a Judgment rendered upon such decision
for the defendant for costs is to De inter- .II-
preted as a final judgment IN 1aNor OIL IAs=
defendant upon the merits
3 In a prosecution under the statute
making it an offense to carry away cnllo
with intent to detain 1t from its parent OF
other person having the lawful charge OF
it. where the information alleges tnat the
defendant took the child with the intent
TO conceal it from person who was IT'S
mother and also had lawful charge Of H.
and the evidence conclusively estaDhshes
that the person named was laWLuy En- En-
titled to the costody OF the chlld' the
question whether she is also its mother
becomes immaterial
son TO whom its custody has been award
ed bv the Judgment of a court, ana an
armed man, employed for the purpose IN
the interest of the opposing Grazing :
antare the home and carries the child
awav by force and violence. sn prose-
cution Of one who under a similar employ
Toent aided in the abduction, 1T is not
error To refuse to instruct that proof that
the child was taken under a claim
of right resting upon reasonable
grounds would constitute deIense, NOT
9111ithstanding the judgment referred to
was based upon an earlier Judgment
which had since been set aside
iieI T., % persecution for kidnapping, evil
100 raj the person in charge of the
ot7iiS nos charlotte BIeakley is sufficient
~ r.,s+ai, an allegation that the name of
such person was Lottie Bieakley'
All the Justices concurr1ng, except Ben
son. J., who did not sit.
true copy. ---D-
TSeaI1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
No. 1859.
William P. Campbell, Plaintiff,

vs.
Thornton W. Sargent, Defendant.
Original Action in the Nature Of Quo
Warranto.
JUDGMENT FOR DEFENDANT.
Syllabus By the Court Smith. J.
l. In an action by a private individual
to Gust one holding public office from
such office. it is essential to the state
ment of cause of action, that it be al
legged in the petition that the occupant,
defendant, has either usurped, intruded
into or unlawfully holds or exercises the
office; also that the plaintiff, himself, is
entitled to hold and exercise the office.
2. If no individual, as against the occu-
pant, has a better right to the office than
other individuals of the community, then
the interest therein is public and such ac-
ton can only be brought by the state
through its appointed agencies.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
LSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
LEGAL.

PENDANT sold the land to the claimant and
executed a deed which by mistake de-
scribed another tract instead of that in
tended to be conveyed.
"A true copy.
Attest: D. A. VALENTINE,
lSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
rPublished in The Topeka State Journal
October 10, 1911l
OFFICIAL CITY COMMISSION PRO
- C~ErErT1TNC.C

OFFICIAL CHI OO-sL144E7s74J-F IA&D-
CEEDINGS.
Commission Chamber, Topeka, Kansas,
Monday, october 9. 1911 The city commits
sior, met in regular session at o'clock
m with the following commissioners
present Commissioners Bone, Miller,
Stofts and Tandy1. Mayor Billiard in
the chair.
Communication from Stephenson & Co,
asking permission to erect an electric
sign in front of their offices at COG Kansas
avenue was presented, read and, on mo-
ton of Commissioner Miller, the request
granted. the work to be done under the
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
NO. IT,
Ed Meegan, Appellant,


The Pettibone-Gentry Company, ct al,
Appellees.
Appeal from Usage County
AFFIRMED
Syllabus BY the Court Johnston. C. J.
l. Where the property seized in an at
tachment action is claimed by one holding
a mortgage on it, and who Is not party
10 the attachment action, such mortgage
has the option to recover the property IN
an action of replevin OF to protect ana
enforce his mortgage lien by interplead-
ing in the attachment action
2. The fact that a forthcoming bond
was given by a defendant in the attach
ment action, to whom the property was
delivered, which bond was not signed nor
procured to be given by the mortgage, will
not refeat the right OF the mortgage to
intervene in the attachment proceeding in
order to have his interest in the property
determined.
3. Nor will the fact that he obtained
peaceabIe possession of the property from
one of the defendants, after the forth
coming bond was given, prevent a hearing
upon his interplea which was filed about
the same time that possession was OBJ
tanned.
All the Justices concurrlng.
A true copy.
Attest: d A VALENTINE.
LSeal.1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-10-10
No. 1924.
J. L. Hillyard, Appellee,


J. L. Hillyard, Appellee,
Franklin Banchor, Appellant
Appeal from Kearny County
MODIFIED
Syllabus BY the Court. Benson.
1. a judgment regularly rendered IN an
action against a mortgage and others to
quiet title that the defendants therein
have no estate or interest in and to said
premises, and that they be perpetuaily
barred and enjoined from asserting any
claim to said premises, or any
part thereof, adverse to that OF plalntlI
bars the lien of the mortgage
? Where an action has been prosecuted
to Judgment in a court of competent juris-
diction by procedure regular upon the
face of the record, it viii be presumed
that the parties thereto were living when
the action was commenced and when the
Judgment was rendered In the absence
Of proof to the contrary this presumption
will prevail.
8. Objections of the purchaser to the
title to land as shown upon an abstract OF
title presented by the vendor are examln-
ed and the title is held to be marketable
l. 1t is a general rule that purchaser
of land who has made an advance pay
nent and then failed to fulfill his con-
tract without default on the part OF the
vendor can not recover the amount SO
paid.
All the Justices concurring.
A true copy ..,v~~-
TSeall Clerk Supreme Court