davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
No. 1875.
S. 2. Hughes, Appellant,

No. 1875.
S. 2. Hughes, Appellant,
John Veal. Trustee. ct al, Appellees.
Appeal from Ottawa County.
AFFIRMED.
Syllabus. By the Court Johnston, c. ].
1. The congressional grant of right
of way for the construction of highways
over public lands may be accepted by the
acts of the public authorities, or by the
public itself, or by the concurrent action
of both.
2 Where the officers of the county I'M
dertake to establish highway, and the
proceedings taken are insufficient to meet
all the requirements prescribed by the
statutes of the state for establishing
highways, and where such officers cause
the highway to be surveyed and located
over public lands, and the public itself
adopts the action of the officers and
travels over and uses the road as a high
way, the combined acts of the officers
and the public are sufficient to constitute
an acceptance of the congressional grant.
g. The evidence in the case examined
and held to be sufficient to support the
decision that a highway exists over ap-
All the Justices concurring.
Attest: D. A. VALENTINE,
(Seau Clerk Supreme Court.
No. 17447.
The State of Kansas ex rel, F. S. Jack
son, Attorney General, Plaintiff.
F. 5. Reddlng, mayor, ChdS- e. Brown,
ct al, Councilmen, City of Fredonia,
Kansas, Defendants.
- Original Proceedings in Mandamus.
Peremptory Writ Denied.
Syllabus. Blythe Court. Johnston. G. J.
When grant is made by city of the
second or third class, of franchise to
supply gas to the city and it's inhabitants
for a term of years, which prescribes the
plan on which gas is to be distributed
and the rates which consumers will pay
therefor, it is competent for the mayor
and council of such city thereafter tc
make reasonable changes in the rates
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
LEGAL.

right of the plaintiff to maintain the ac-
ton. Held, that the application was adj
dressed to the sound discretion of the
court, that the court could not try the
merits of the cause upon affidavits and
that its action in setting aside the dis
n1issal and in reinstating the cause was
in the furtherance of justice.
All the Justices concurrIng.
true copy.
Attest: D. A VALENTINE,
GSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
LEGAL.

from time to time, and Sec. 749, of the
Gen. Stat. 1909, does not require that an
ordinance making such changes shall be
submitted to the electors for their ap-
proyal or rejection.
Burch, j., Mason, J., Porter, j., and
West, j., concurring.
J., dissenting.
A true copy.
Attest: D. A. VALENTINE.
lSeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
No. 1878
J. w. Smith, Appellee,

No 1878
J. w. Smith, Appellee,
Vs.
The Marion Fruit Jar and Bottle Com
t pany, Appellant
Appeal from Montgomery County.
AFFIRMED.
Syllabus. BY the Court. Mason, J.
l. Evidence that a boy thirteen years of
age was fatally injured by putting his
hand in contact with a power fan, mail
tanned, in an unguarded condition, in con-
nection with factory, at a place Access
sible from the outside where children
were permitted to play justifies finding
of actionable negligence on the part of the
owner.
q In an action by a father for the neg
ligent death of his son while employed in
a factory, the fact that he consented to
such employment is not bar to a recov-
cry, Notwithstanding it was his duty I'M
der the statute to have had his son at
school.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE
ISeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
No. 16, 1895.
]. c. Ferguson, Appellee,

A. L. Cable, Treasurer, Appellant.
Appeal from Greenwood County.
REVERSED.
Syllabus. By the Court. Burch. D.
1. 1t is not an improper delegation or
municipal power for the mayor and coun-
Gil of city to commit the construction OF
a sidewalk to the street commissioner
when the work has been ordered and the
details of its execution have been pre-
scribed by ordinance.
2. The judgment and discretion OF the
mayor and council respecting the kind of
material to be used in the construction of
a sidewalk are sufficiently exercised by
the designation of several kinds, any one
of which may be used
8. When a sidewalk has been duly con-
structed by the street commissioner
under a proper ordinance which requires
him to do so and which provides that he
shall report the cost to the city clerk,
who shall certify the amount to the coun-
ty clerk to be extended on the tax rolls
against the lots adjacent to the walk,
the ordinance constitutes the legislative
act levying the special assessment; and
the report of the cost and its certlf1ca-
ton to the county clerk are ministerial
matters.
All the Justices concurring.
A true cvpy.
Attest: D. A VALENTINE,
ISeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12

oouho to act conscientiously upon it, is
primarily a sufficient admonition as to
the separate individual duty of each
Johnston, c. j., Burch, J., Mason, J.,
Smith, J., Benson, J., concurring
Porter, J., dissenting
true copy.
Attest; d. A. VALENTINE.
lSeaI1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
No. 1928.
The State of Kansas, Appellant,

NO 11243.
The State of Kansas, Appellant,
VS..
w: A Morgan, ct al, Appellees.
Appeal from Shawnee Colnty.
AFFIRMED.
syllabus. By the Court. West, J.
The appelleeS were informed against for
libel May, 1908. Trial was had at the next
term resulting in a failure of the jury to
agree. On the last day of each of the
two succeeding terms an order of forfeit
ture was taken. No delay was occasioned
by the defendants below. After the con-
clusion of the third term application was
made for dismissal apparently under Sec
$500 Gen. Stat. 1902 The showing made by
the state was that the county attorney
and. two assistants had been ready and
anxious for trial, that a setting of the
case for trial had been requested but they
had not been able to bring it to trial :;
that the state and the county attorney
were ready at each term, and that two
of the affiants believed one reason why
the case had not been set for trial was
the great volume of business coming be-
fore the court.
The court dismissed the case and order
ed that the defendants be released from
further prosecution therein. Held that
the dismissal itself was proper
All the Justices concurring.
A true copy.
Z Attest: d. A. VALENTINE,
lSealJ Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12

No. 1700S.
c. Dyson, Appellant,
vs.
B. F. Bux, S. ]. Stadel and Andy Bauer
lein, Appellee.
Appeal from Shawnee County.
REVERSED.
Syllabus BY the Court West, ].
I. d. owned lot 81 upon which UP to
the north line was the wall of a building.
The petition alleged that he contracted
orally to sell one-half of this wall to
D. sold the lot to Bux and Stadel, telling
them that it carried but one-half the
north wall as he had agreed to sell the
other half to Bauerlein. That d. made a
written contract to sell lot 81 to BuX and
Stadel to include one-half of the wall.
That subsequently he executed deed to
them conveying lot 81 land the improve
ments thereon, which consists OF one
half 90 each of the north and south
walls of building designated as street
number two hundred and twenty-five
(225)."
The petition further alleged that Bauer
Iein and Bux and Stadel conspired and
colluded together for the purpose of
cheating and defrauding D. out of the
one-half of the wall, Bauerlein refusing
to carry out his agreement to purchase of
d. and with the consent OF BuX and
Stadel appropriating the half of the wall
to his own use. Held that cause of
action was stated and that demurrer
to the petition was enormously sus-
tanned.
2. The ancient rule that the habendum
clause in deed controls later excep-
ton therein has lost much of its former
force and inflexibility. A deed like any
considering all it's language with a view
to ascertaining the intention of the
grantor.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
ISeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
D. A. VALENTINE,
Clerk Supreme Court.
No. 17,o12
Union Pacific Railroad Company, A
pellee.

No. 17,012.
Union Pacific Railroad Company, Ap-
pellee,
Ellsworth Mill and Elevator Company, ct
al, Appellants.
Appeal from Ellsworth County.
AFFIRMED.
Syllabus. BY the Court Mason ]
The statute giving a right to trial by
jury in Justices courts reads: I'm all civil
actions, after an appearance of the de-
PENDANT and before the justice shall pro-
coed to inquire into. the merits of the
cause, either party may demand a jury
Gen. Stat. 1909 sec. 6460) The Justices
act also provides that no appeal shall be
allowed from the Judgment of justice OF
the peace in jury trials where neither
party claims more than $40. Gen Stat
1909, sec. 6496) Held, that where the de-
PENDANT makes no appearance the plain
tiff has no right to jury trial, and can
not, by demanding and obtaining one,
deprive the defendant of his right to ap-
peal.
All the justices concurring
A true copy.
Attest: D. A. VALENTINE
ISeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
d. A. VALENTINE.
Clerk Supreme Court.


No. 1892.
John W. Butts and Rose A. Butts, APP
~ pellants,
Halleck d. Butts ct al Appellees
Appeal from Jefferson County.
AFFIRMED.
Syllabus. BY the Court Porter, J.
1. In an action where plaintiff seeks
to establish a parol gift of lands from his.
father in whom the legal title stood at the
time of the latter's death, declarations
and statements of the father made while
in possession and control of the lands are
admissible in evidence not as mere asser-
tons of title but as explanatory of his
possession and the nature and character
of his claim of ownership.
2. In an action to quiet title, where the
plaintiff is in possession claiming to own
the land by a parol gift, possession and
entitled to jury trial.
g. Section $500, General Statutes of 1909,
(sec. sos, Code of Civil Procedure), requir-
ing new trial to be granted when a
verdict of jury has been vacated, has
no application to a special verdict in an
swer to questions of fact submitted to
jury in aid of the court and which the
court sets aside contrary to the evil
dence.
All the Justices concurrlng.
A true copy.
Attest: D. A. VALENTINE.
ISeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
No. 1908.
Carl W. Miller, Appellee
NJ. r. Jenness, Appellant.
Appeal from Dickinson County,

NJ. r. Jenness, Appellant.
Appeal from Dickinson county
AFFIRMED. 60,
svl1ahus Nv the Court. Smitn' j.
l. The rate of speed Of an ao Ut W6icb the
,oeorie Generally in this country have some
knowledge 1t is not matter ex6igSiv tbe
of expert knowledge or skin; w ne edt 1917 LII
rate Of speed of such vehicle is nlate[i E
in ina an ~ action. any person of ordinary abii,
ity and means of observation VINO may
have observed the vehicle may give ms ms
estimate as to the rate of speed at whch
it was moving. ....-- r.. ..,.a-,-
+ia1 s,,nnorted bV an affidavit that an at
torney In his argument to the jury made af1e
certain assertions as to the facts OF tIl9
law of the case the judge, having hearu
the argument, is not concluded by the
STATEMENTS in the affidavit but may also
Consider his own recollection Of the utter
ances of the counsel
All the Justices concurring.
IA+faSf. NOP'' d A. VALENTINE,
TSesn CLERK Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
LEGAL.

and independent parol agreements not
conflicting with such terms.
All the Justices concurrInS-
A true copy rNyrrNfr
TSesI1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
D. A. VALENTINE,
Clerk Supreme Court
No. 16, $50.
A. C. Willis, Appellant,

A. C. Willis, Appellant,
Nathan Stafford as Township Trustee of
Washington Township in Republic
County, Kansas, and A. A. Price as
Road Overseer of District No. 3, of
Washington Township in Republic
County, Kansas, Appellees.
Appeal from Republic County.
AFFIRMED.
Syllabus. BY the Court. West, j.
/. road was petitioned for, viewed,
located and ordered to be opened, the
order reciting that it be established as a
public highway beginning at the south
west corner of Section 81. thence run
ming north regardless of disputed cor
ners to the state line" The true location
of the northwest corner of Section Il
was disputed, the surveyors report show
ing that he had located it about six rods
east of where the appellant claims 1T is.
The appellant was awarded damages but
took no appeal from the order or allow
ance of the board. Held that he cannot
maintain injunction to prevent the open
ing of the road.
2 An attempted appeal from the sur
veyors report under Sec. 2275 Gen., Stat.
1909 was without avail, such section hav-
ing reference to land surveys and not to
the kind of survey involved here.
All the Justices concurring.
A true copy. D. q 80
Attest: D. A. VALENTINE,
lSeall Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
d. A. VALENTINE.
Clerk Supreme Court
No. 1850.

No. 1850.
In re Elva Petit, Petitioner.
Original Proceedings in Habeas corpus.
Petitioner Remanded.
No. f7422
ElVa Petit, Appellant,
John A. Lewis, Appellee.
Appeal from Harper County.
AFFIRMED.
SYLLABUS BY the Court Johnston, c. j.
l. The grant of original jurisdiction 10
the supreme court in quo warranto, man
damus and habeas corpus comprehends
and carries with it authority to exercise
superint ending control over inferior courts
to the extent that it may be exercised by
those writs and proceedings.
2 In addition to it's appellate Jurtsdtc-
ton the district court is vested with au-
thority to supervise and control inferior
courts and tribunals in order to prevent
and correct errors and abuses.
8. An appeal may be taken to the dis
trict court from a decision of the probate
court in a habeas corpus proceeding.
4. A district court, which renders
Judgment divorcing parties and providing
for the custody. education and mainten-
ance of minor children holds a conttnu-
ing jurisdiction in respect to the children
and may, at any time, upon proper appl1-
cation and notice, modify its decree when
ever the altered conditions or circum-
stances of the case or the parties require
to modify the judgment has been made
the probate court can not, by a writ of
habeas corpus or otherwise, deprive the
district court of power to modify the judg-
ment, nor interfere with its authority to
change the custody and control of the
children.
All the Justices concurring.
A true copy
Attest: D. A. VALENTINE,
ISeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
D. A. VALENTINE,
Clerk Supreme Court.
No. 1924.
Daniel B. Hunnicut, Appellee, =

VS..
Elihu ]. Oren and Mary Oren, his wife,
Appellants
Appeal from Douglas County.
AFFIRMED.
Syllabus. By the Court. Smith, J.
i Where a grantee accepts title to
land, without any consideration therefor
under an agreement with the grantor to
hold it for her, and without any fraud
ulent intent, a trust results.
2. Where a trust results by implication
of law, recognition by the trustee of
the rights of the equitable owner tolls
the running of the statute of limitations
until the holder Of the legal title dis
avows the trust.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
LSeal1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
No. 1908.
Edward Austin, Appellee,

Edward Austin, Appellee,
Louise Ballard. D. E. Ballard and Alice A.
Ballard, Appellants.
Appeal from Meade County.
REVERSED.
Syllabus BY the Court. Benson. j.
/ A purchaser of land at a sherins sale
under a Judgment in foreclosure proceed
ings, may transfer his bid, and the shef-
ifs deed may be made to the transferee.
Q Where the interest of a purchaser at
a sheriff's sale is transferred to another to
whom the deed is made, and the deed,
otherwise in proper form, does not contain
a recital of such transfer, the fact may be
shown by extrinsic evidence.
g. A party holding title under a sheriffs
deed made to him upon transfer of the
interest of the purchaser at the sheriff's
sale, who fails to produce evidence of such
transfer although within his power to do
so: and who, because of such failure, is
in an action of eJectment brought
against a party in possession of the land,
is estopped by the judgment from main
tanning a new action against the same
party, upon a new deed based upon the
same sheriff's sale and order of confirna-
ton.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
[SealI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
No. 1886.
Thomas Williams, Appellee.

VS.. r
The Board of County Commissioners OF
Usage County, Kansas, ct al,
Appellants.
Appeal from Usage County.
REVERSED.
GvlIabus BY the Court. Smith, J.
Where two parties enter into a writ
ten contract for the sale of real estate ana
the purchaser makes a partial payment
thereon and a definite promise to pay the
remainder of the price at a certain um ie
or times to pay the taxes thereon ana -
to receive possession thereon at a certa d
date and the seller undertakes to convey
the legal title to the land upon the pay
ment in full of the amount of the purchase
nrice such transaction creates DEBT
from the purchaser to the seller, whicn is
secured by the retention of the legal ttie
to the land by the seller until the DEBT Is
paid The debt is personal property ana Is
taxable under the laws of this state, and
this Notwithstanding a provision IN the the
contract that upon the failure OF the
purchaser to meet the conditions OF the
contract within a reasonable time the con-
tract shall terminate and become void
All the Justices concurring.
A true copy. ->-,,rD,r,
TSeaI1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
D. A. VALENTINE,
Clerk Supreme Court.
No. 170O6.

No. 170O6.
Charles H. Barney and G. w. Roden
partners doing business as Barney q
Roden, Assignee of Jack Carruth, APP
pellees,
L. G. Ferguson and The United Surety
Company, a corporation, Appellants.
Appeal from Wyandotte County District
Court.
AFFIRMED,
Syllabus. BY the Court. Porter. j..
An action to foreclose q mechanics lien
was dismissed without prejudice At the
same term the attorney for the plaintiff
filed a motion to set aside the order of
dismissal and to reinstate the cause on
the ground that it had been dismissed
under mistake of fact The defendant
had notice and resisted, affidavits being
filed for and against the motion. The
principal grounds urged against the re-
instatement went to the merits and the
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
No. 1890.
Charles E. Gibson, Appellant,

No. 1880.
Charles E. Gibson, Appellant,
VS..
Thomas F. Ledwitch,
Games K. Hitch, ct ux, Appe1lees)
Appeal from Seward County.
REVERSED.
Syllabus BY the Court. Johnston. =. J.
When mortgage is executed to party
named as trustee, who has no beneficial
interest in the mortgage, and is given no
powers or duties over the subjects of the
mortgage relation, nor any authority 10
represent the creditor, a judgment quiet
ing the title of the mortgaged land as
against such nominal trustee, in an action
to which the creditor is not party, will
not bind the creditor, nor operate as bar
to the maintenance of an action to fore
close his mortgage.
An the Justices concurr1ng-
A true copy.
Attest: D. A. VALENTINE,
GSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12
D. A. VALENTINE,
Clerk Supreme Court.
No. 1907.
John W. Shores, Appellee,


John W. Shores, Appellee,
VS..
Inc United Surety Company, Appellant.
Appeal from Wyandotte County.
AFFIRMED.
Syllabus. BY the Court Benson ]
i The action was brought to recover
upon a bond given under the provisions of
the mechanics lien law for material fur
nlshed to contractor for the erection of
q school building. 1t is held that the evil
dence was sufficient to show that the
plaintiff was the real party in interest
z An instruction containing a clause OBJ
jected to by the defendant which is in
substance the same as one contained in a
request made by the defendant for an
other instruction, is examined and held to
be not prejudicial. but if it were, the de-
PENDANT ought not to complain.
s. Newly discovered evidence to afford a
ground for a new trial must, among other
requirements, be of such character and
strength as would with reasonable prob
ability have compelled different decision
II 1t had been introduced. (Sexton "
Lamb, q Kan. 1879.
All the Justices concurring
true copy.
ATTEST: D. A. VALENTINE,
'lSeaL1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-04-12

No. 1922.
The Wyandotte State Bank, Appellee.
A. J. Murray ct al, AppelIees, Ct. H.
Cohen, Appellant.)
Appeal from Wyandotte County.
MODIFIED
Syllabus. By the Court. West, j.
1. Art. of Chap. % Gen. Stat. 1909. sec.
2445-245S, provides that in case of sickness
judge of any division of the district court
the judge of either of the other divisions
may hold court in place of such absent or
disqualified judge, and do and perform
any act or duty pertaining to such divi-
sion. A foreclosure was had in Division
No. 1 and motions to confirm and set
aside the sale were filed in the I'd Divi-
sion, the judge of Division No. / being
absent from the state. The judge of the
I'd Division, granted the motion to con-
firm and denied the motion to set aside
judge of Division No. 1 upon his return
to the state to set these orders aside
which he did before the expiration of the
term during which they had been made.
At the succeeding term the judge of
Division No. set the sale aside. All the
parties were present in person or Dy
counsel or both in Division No. when
the orders were there made, ana THESE
orders were set aside in Division NO.
upon the same evidence
Held that as to the sole question OF
jurisdiction. the judge Of each division
had authority to rule as he did.
2. 1t is essential to the harmonious and
orderly administration of justice in courts
consisting of two or more divisions under
the act referred to- that care be used to
preserve proper respect and Difference
between the judges, and that they re-
frain from reviewing or reversing one
anotherS orders or proceeolnSS unIesS
for some good reason.
g. Under Sec 6095 Gen. Stat. 1909 requir-
ing the court to confirm sale If it finds
the proceedings regular and in conformity
with law and equity, the trial court has
substantially the discretion of chancel-
Ior in a suit in equity. and may, although
the proceedings be regular; set ASIDE
sale when to confirm would permit in
equitable and unfair practices or conduct
to be rewarded at the expense of one who
has been fair and honest.
johnson, c. j.. Mason, J., Smith, J.,
Benson, J., cOncurr1ng-
Porter j., Burch, J., and West J., dis
sentihg.
A true copy
Attest: D. A. VALENTINE,
TSeaI1 Clerk Supreme Court.