davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal., 1913-10-15
LEGAL

not the record; and there is no provision
of law authorizing it to be filed among
the papers. 1t becomes mere form for
the convenience of the clerk in making
the record.
8. In this case it is held that since it
was not necessary that such a paper be
either filed with the clerk approved
by any person, appellant lost nothing by
having no opportunity to be heard when
1t was approved.
4. In the trial of an appeal from the
probate court in a lunacy proceeding the
refusal of the court to strike from the
files statement in lunacy certified III
from the probate court is not final or
der, and error cannot be predicated there
on. Especially is this true, where the
order refusing to strike was made long
after the rendition of the judgment.
D. In a proceeding in the probate court
appellant was adjudged insane. On ap-
peal to the district court the same judg-
ment was entered which was afterwards
affirmed by the supreme court. Held. that
the district court had Jurisdiction
thereafter to entertain a motion for his
discharge on the ground that since the
judgment he had been restored to mental
health.
All the justices concurring.
A true copy.
Attest: d. A. VALENTINE.
LSeaL1 Clerk Supreme Court.
The Topeka state journal., 1913-10-15
LEGAL.

for perfecting the lien will be computed
from the latter date.
5. Where material has been furnished
Tor the erection of improvements on real
estate and has been used for that pur-
pose, the right to a mechanics lien is not
defeated because the material was sold
for cash and the title was reserved until
the price should be paid.
D. The preferred claim of a laborer for
wages earned within six months immed-
lately preceding the appointment of a
receiver for corporation is not lost be-
cause not satisfied out of the first pro-
ceeds coming into the hands of the re-
ceiver as the statute directs.
T. Section 5237 of the general statutes
OF 1909 suspends the force of a provision
In a contract of sale of personal property
reserving title in the vendor and rend-
ers the sale absolute far innocent
purchasers and creditors of the vendee
are concerned, until the contract is filed
for record
8. Machinery sold under an unrecorded
contract reserving title in the seller does
not become subject to mechanics liens
1lled upon the property of the purchaser
unless it has been attached to and has
become a part of the realty.
.. Under the circumstances stated in
the opinion, a new trial is ordered for
the determination of a single fact upon
which the proper distribution of a fund
of money depends.
All the Justices concurr1ng.
A true copy.
Attest: D. A. VALENTINE,
ISeaLl Clerk Supreme Court
The Topeka state journal., 1913-10-15
n. A. VALENTINE,
Clerk Supreme Court.
No. 1883.
Emil Geppelt. Appellee,


Emil Geppelt, Appellee,
VS..
The Mtddle-West Stone Company, ct al,
Appellees,
and
Alls-Cha1mers Company. Appellant.
Appeal from Allen County.
MODIFIED.
Syllabus. BY the Court. Burch. j.
l. The proceedings following the con-
solidation of two actions involving the
validity and priority of mechanics liens
and other claims upon the same property
examined and held to be without preju-
dice to the rights of the appellant
g mechanics lien statement showing
all debit and credit items of the account
for material furnished. and stating a
balance due in a certain sum is not in
valid because in another portion of the
statement larger sum is claimed, LESS
freight" the amount of which is not
specified.
8. It is proper in mechanics lien
statement to designate the person pro-
curing material for the improvement OF
his real estate as owner although he
has only a leasehold estate in the land.
4. Where a material mans mechanics
lien statement shows both the date of the
order and the date of the invoice of the
material to the owner, the time allowed
The Topeka state journal., 1913-10-15
No. 1857.


J. A. Metz. Appellee,
The Missouri Pacific Railway Company,
Appellant.
Appeal from Jewell County.
REVERSED.
Syllabus. BY the Court. Porter, j..
1. Where the special findings eStab-
lish that plaintiffs injuries resulted from
one of the ordinary risks which he had
assumed when he entered into defend
ants employ. it was the duty of the court
to set aside the general verdict in his
favor and render judgment for the de-
fendant
2. A section hand while walking at the
outside of the rails behind a push-car,
stumbled over the end of tie and there
by received injuries. Held, that he can
not recover from the railroad company
the ground of it's negligence in allow
ing the track to be overgrown with
weeds and the ties to project at irregular
intervals, where the jury find that he
was familiar with the condition of the
ties and knew that the track was over
grown with weeds.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
GSeaLl Clerk Supreme Court.
The Topeka state journal., 1913-10-15
LEGAL.

malice, fraud, or oppression, he is not en-
titled to relief on the ground of discrimi-
and color
3. The plaintiff purchased a railroad
ticket good one day from the date of sale.
He was excluded from one train and was
oA1ged to take another later in the same
DAY. He could have used the ticket but
choSe to keep 1t evidence and pur-
chased another. Held, he is not entitled
to recover the price of the first ticket
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE
ISeaL1 Clerk Supreme Court
The Topeka state journal., 1913-10-15
No. IS, $50.
w. c. Klingman, Appellant,


W. c. Klingman. Appellant.
VS..
Henry L. Gilbert, ct al, Appellees.
Appeal from Franklin County.
REVERSED.
syllabus By the Court. Mason. J.
l. A devise having been made to a
widow for life or until her remarriage. a
provision of the will disposing of the prop
erty upon her death is held TO apply also
tlon having been expressly provided, and
this appearing to be in accordance with
from the entire instrument.
2. A devise to the testators son for life,
until she remarked, with a remainder to
the sons bodily heirs, is not obnoxious to
standine the ' som might Rsi inr marry Woman Woman
born after the testator's death, because
as soon as their father died. although the
possession might be postponed to later
8. A will providing that property de-
vised to the testator's daughter should.
IF said daughter shall be survived by, is
sboug 5o 5gch 20 50 her
means that if at the time of her death the
daughter had living issue .9. such ifsue fsnf
otherwise the title. should pass to the
brothers. If the rule of the common law
as in force in this state that the phrase
failure of ISSUE" when used without ex-
planation. is deemed to refer to an in
definite failure, the ianguage nt3tg GT9ted is
4. A petition alleging that plaintiff pur-
chased land from the defendants in re
lance upon their wilfully false statements
that they had an absolute title in virtue
of being the heirs of a forneT I fa.. owner; t;1;
bv which they took less than full title.
held good on demurrer. notwithstanding
rescission is not in terms asked for, ana
no formal offer to reconvey is made, and
facts are not pleaded by which the
amount of recovery could be accurately
measured, If the action is regarded as one
for damages.
All the Justices concurring.
A true COPY. "
Attest: D. A. VALENTINE,
rSeaI1 Clerk Supreme Court
The Topeka state journal., 1913-10-15
D. A. VALENTINE,
Clerk Supreme Court.
No. 1S. .3S3
No. 1858.
C. A. Long and G. A. Long, Partners in
business as Long Brothers, Appellants.



c. A. Long and G. A Long. Partners in
business as Long Brothers, Appellants.
D. F. Clark, ct al, Appellees.
Appeal from Wilson County.
AFFIRMED.
SYLLABUS BY the C0ur. Benson.
/. Where partial payments are made
on a purchase of land under an agree
ment that the sums paid shall be forfeited
if final payment is not made at fixed
time and there is a default in the final
payment and forfeiture due only to the
delay and fault of the purchaser he is
not, in the absence of a waiver of the
right of forfeiture, entitled to recover
back the partial payments previously
made.
. The granting of an extension giving
a purchaser the opportunity to pay the
balance due on the land on future speci-
fled date can not be regarded as a waiver
of the right to insist on a forfeiture stip-
ulation if payment is not made at that
time. 1t is a general rule that no mere
indulgences or silent acquesence be
construed as waiver of the right unless
some element of estoppe1 is involved in
the transaction
All the Justices concurring.
true copy.
Attest D. A. VALENTINE,
ISeaL1 Clerk Supreme Court.
The Topeka state journal., 1913-10-15
No. 17,s5S.
Anton Carlson, Appellant,

VS..
J. B. Allen, ct al, Appellees.
Appeal from Franklin County.
AFFIRMED
E1-If -he Court M1=00. j
1. During a trial the Judge asked what
there was in the case for a jury to settle.
The plaintiffs attorney answered that
there was a question of damages. The
Judge then said that he would submit
the question of damages to the jury and
would decide the other questions himself
No objection was made to this proposal,
and the court. also without objection,
submitted to the jury only the question
of what the amount of recovery should
be- first in case the plaintiff was right
in his principal contention, and second. IN
case he was wrong Held. that the plain
tiff waived the right to have any other
issues submitted to the jury.
. Where the owner of land bordering g
upon a highway the legal width of which
is forty feet sets out hedge intending
to mark the line so as to show a greater
width. and the strip so marked IS used
as a road by the public for fifteen years,
a highway of the width indicated results,
Notwithstanding the hedse is not main
tanned throughout the entire distance for
all of that time.
3. A township is entitled to recover
from an individual an amount which 1t
has necessarily expended in making re-
pairs to a highway which were occas-
ioned by his wrongful act.
All the Justices concurring.
A true copy. -
Attest: d A VALENTINE,
ISeaI1 Clerk Supreme Court.
The Topeka state journal., 1913-10-15
M 1S S75

No. 1SS75.
The Board of Education of the City of
Nickerson, Plaintiff
w. E. Davis Auditor of State, Defendant
Original Proceeding in Mandamus.
Writ Denied.
Syllabus. By the Court Porter. ].
Chapter Sc, Laws of 1909 (sec. 1850 Cen
eral Statutes 1909. authorizing the board
of education in cities of the first or sec
ond class or any school district in which
is located a city of the third class. to
acquire land for use as sites for school
buildings Fairgrounds, additions and ex-
tensions thereto, does not confer upon
such boards power to purchase land to
be used for the purpose of teaching agri-
culture to the pupils of such schools.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
GSeaL1 Clerk Supreme Court
The Topeka state journal., 1913-10-15
No. 1S. $50.
Clara Green, Appellee,

National Annuity Association, Appellant
Appeal from wyandotte County
Second Division.
AFFIRMED.
SYLLABUS. BY the Court. Benson, ].
1. Express warranties of the truth1ul-
ness of answers to questions were mage
in an application for a beneficiary certifi-
cate and the certificate recited that II
was issued subject to the statements
made in the application which are mere,
by warranted to be full complete anU u
true and made part of this contract
The statements referred to are held TO
lhe warranties. .u
. The following questions and answers
appear in the application;
go. Have you ever had loss or
consciousness? A. No.
O. Have YOU had any illness. constitu-
tionaI disease or injury that has con-
fined you TO the house during the past
five years? If so. give particulars. A
wear ago. yes had uremia-Dr. ]. F.
Hassig Kansas City. Kansas pronounces
him cured-I find no trace myself
The illness referred to occurred seven
months before the answers We're made in
stead of one year but no further question
was asked concerning the date The med1-
cal examiner of the association appled
the best known tests for uremfa and
then appended to the applicants answer
her own statement 81 find no trace my
self It is held that the association was
sufficiently informed of the disease. The
precise date being within the period cover
ed by the question was not considered
important by the assoc alton, and should
be treated superfluous-
8. The evidence shows that unconscious
ness is an ordinary incident or mantfeS-
ton of uremia. Having been informed
of the disease the association is charge
able with knowledge of this incident.
4. The association waived the conditions
of the policy relating to previous illness
from the disease referred to by accepting
the risk and issuing the policy with
knowledge of such illness and is estopped
from insisting upon a breach of warranty
that the applicant had not had such dis
ease or that its ordinary manifestations
had not appeared.
5. In an action to recover an Install
ment of 500 upon beneficiary certificate
where the defendant fnterposed a counter
Naim for the forfeiture of the certif cate,
and prayed for cancellation. this court
has jurisdiction of appeal by the de-
fendant from a judgment for the plain
tff for the recovery of the instalment
sued for.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
rSeaL1 Clerk Supreme Court.
The Topeka state journal., 1913-10-15
No. IS, ,375.
Eureka Bank, Appellant.

No. Is, ,375.
Eureka Bank. Appellant.
~ VS..
z Robert B. Bay. ct al, Appellees.
Appeal from Anderson County.
AFFIRMED.
Syllabus BY the Court Burch. ].
1. The provision of the statute of linn
ltations governing actions for relief the
ground of fraud has no application to an
action for relief on the ground of duress
by threats
?. The statute of limitations does not
commence to run against an action for
relief on the ground of duress by threats
while the mind of the aggrieved party con-
dnues to be dominated by the threats.
So long as the influence Of duress
The Topeka state journal., 1913-10-15
LEGAL.

continues, conduct in apparent recognition
OF the validity of contracts procured by
ton.
4. The evidence considered and held to
support a judgment cancelling notes and
mortgages on the ground that they were
procured by duress, in opposition to pleas
of the statute of limitations and ratifica-
ton.
All of the Justices concurring.
A true copy
Attest: D. A. VALENTINE,
lSeaLJ Clerk Supreme Court
The Topeka state journal., 1913-10-15
D. A. VALENTINE.
Clerk Supreme Court.
No. 18, 1923.
State of Kansas, Appellee,

State of Kansas, Appellee,
Justus B. Linderholrn. Appellant
Appeal from Mcpherson County.
AFFIRMED.
Syllabus BY the Court. Porter. j.
l. It is the duty of the clerk of the
district court to keep a journal and to
record thereon all judgments, DEGREES, and
orders of the court. All that Is necessary
is that the journal recite correctly the
Judgment of the court, no matter how
or from what source the clerk may have
obtained the form used in making the en-
try. If a dispute arise between counsel
as to what was decided or adjudged the
court is the final arbiter, and if for any
reason the record fail to speak the truth,
it is the duty of the court and it has
power at any time to order the record
changed and corrected.
2 The customary practice by which
the opposing counsel agree upon the form
which the clerk shall use in recording
upon the journal judgment, decision.
or order of the court, has the advantage
of preventing disputes over what the
terms of the order or Judgment are; but
even when signed by counsel, or ap-
proved by the court, the paper itself is
The Topeka state journal., 1913-10-15
No. Is, Alt.
The State of Kansas, Appellant,

No. 1S, AIT.
The State of Kansas, Appellant,
VS.
Ella G. Dixon, ct al, Appellees
Appeal from Geary County.
REVERSED.
Syllabus. BY the Court. Johnston. c. }.
l. As a general rule statutory Hmita-
tons do not run against the state when
it sues IN its sovereign capacity, unless
the statute expressly includes the state or
the legislative intention to include 1t is
shown by the clearest implication.
2. The code provisions limiting the time
within which a revivor of an action or
judgment must be had in case of the
death of one or more of the parties there
to does not include the state or apply to
it, ard in order to keep alive a judgment
in favor of the state perpetua1ly enjoining
the maintaining of a common nuisance
under the prohibitory liquor law on GER
tain premises and adjudging that the
attorneys fees and costs in the case be
a lien thereon it is not necessary that an
execution be issued upon the judgment
within five years from the rendition of it
as is required to prevent dormancy of an
ordinary Judgment.
All the justices concurrfng.
true copy
Attest D. A. NALEN TINE,
ISeal1 Clerk Supreme Court.
The Topeka state journal., 1913-10-15
LEGAL.

or circumstances sufficient to excite the
suspicious of prudent person and put
MIN upon inquiry, he will be charged with
knowledge of the facts which a dilgent
inquiry would have disclosed
2 The evidence is examined and it is
held to be sufficient to authorize finding
that the grantee in this case is charge
able with notice of the fraud.
All the justices concurring.
A true COPY.
Attest: D. A VALENTINE
ISeaL1 Clerk Supreme Court.
The Topeka state journal., 1913-10-15
No. II. .S04.
Allen Taylor, Appellee,



The Atchison Gravel, Sand & Rock Com
pany. Appellant.
Appeal from Atchison County.
AFFIR MED.
Syllabus BY the Court Mason. J.
1. Evidence tending to show the follow
ing facts is held to authorize a recovery:
In the operation of a quarry a small
charge of powder was exploded in a
drilled hole, for the purpose of charging
1t so that it would receive a larger
quantity. The custom was in such cir
Instances for the superintendent to test
the hole to be sure that no fire remained
in it before 1t was loaded for blasting.
The plaintiff was directed by the superln-
tendent to load this hole and was told that
it was safe. He knew the custom and be-
lieved the test had been made. Relying
on this belief he attempted to load the
hole The powder exploded and he re-
ceived the injuries on account of which he
sued.
3 1t is held that no preiudicial error is
shown in the giving or refusal of instruc-
tiOns
All the Justices concurring.
A true copy
Attest: D. A. VALENTINE.
TSeal1 Clerk Supreme Court
The Topeka state journal., 1913-10-15
No. 1S,418
The State of Kansas, Appellee.

John Tannyhill and Robert Keller, APP
pellantS.
Appeal from Shawnee County.
Second Division.
REVERSED
Syllabus. BY the Court. Mason, j.
Where an officer seizes personal prop
erty upon attachment and delivers it to
a custodian to be held subject to his or
der, a stranger to the writ who claims
to own the property and makes demand
for it upon the custodian. is not guilty
of obstructing the execution of process,
whatever his motives may have BEEN
where he employs no deceit and the prop
erty is voluntarily delivered in response
to his demand.
All the justices concurring.
A true copy.
Attest D. A. VALENTINE,
ISeal.1 Clerk Supreme Court.
The Topeka state journal., 1913-10-15
No. 1888.
W. H. Gordon, Appellee,
VS..
r. 8. Elliott. Appellant.

NO. 1888.
W. H. Gordon, Appellee,
r. s. Elliott. Appellant.
Appeal from Morton County.
REVERSED.
Sy11a bus. Bv the Court. Benson J..
A well drilling rig was sent up by the
owner with which drilling was done upon
defendants farm until he ordered the
work to stop A clause in the contract
provided that the defendant should allow
the expense of moving out the drilling
outfit not exceeding the cost of transport
ing it from Humboldt to the defendants g
farm in Morton county. Without remov-
ing the rig from the place where the work
had been done, the plaintiff demanded 4
that the defendant should ship it back to
Humboldt and upon refusal to do so, sued
to recover what the expense of such re-
n1oval if made. would have been. The de-
fendant did not assume the responsibility
of shipping the apparatus and was only
bound TO paw the necessary expense there
of in case it should be removed by the
defendant. AS such removal has not been
made and no expense has been incurred
the plaintiff can not recover
All the Justices concurring.
A true copy
Attest: D. A. NALENIl = r.
fSeal1 Clerk Supreme Court
The Topeka state journal., 1913-10-15
No. 1881
The State of Kansas, Appellee.

VS..
Fannie Gray, Appellant.
Appeal from Shawnee County.
Second Division.
AFFIRMED.
Syllabus BY the Court. Benson, ].
1. A general instruction to the effeot
that 1t is proper to consider the interest
and bias or prejudice of witnesses In
Judging of their credibility is sufficient
unless some good reason appears for speo-
tally cautioning the jury.
2 No prejudicial error is shown by
reading to the jury an instruction stat
ing an abstract proposition of law not
pertinent to the evidence II while argu-
ment is being made for the defendant the
instruction is withdrawn and the jury Is
directed not to consider 1t, no further d.
rection being requested.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE
lSealJ Clerk Supreme Court
The Topeka state journal., 1913-10-15
No 1887
W. H. Heydorf, Appellant,

Annie Cooper. Appellee.
Appeal from Cowley County.
REVERSED.
Syllabus. BY the Court. Mason. J.
Where upon the granting of a divorce,
the custody of child has been awarded
to the mother the father may maintain
an appeal from an order of the probate
court granting petition for the adoption
of the child; such an order is within the
terms of the statute making final de-
cisions appealable. and the father has a
standing to maintain the appeal notwith-
standing a provision that his consent to
the adoption order is not necessary, al
though desirable
All the Justices concurrlng
A true copy. -
Attest: d. A VALENTINE.
TSeaL1 Clerk Supreme Court
The Topeka state journal., 1913-10-15
No. Is, ,374.
Eli Stark, Appellant,

No. Is, S,374
Eli Stark, Appellant
VIM Geiser, ct al, Appellees.
Appeal from Wilson County
AFFIRMED.
Syllabus. By the Court Johnston q T
A statute authorized the enactment of
certain ordlnaces by cities and provided
that for the violation of the same a fine
not exceeding $100 might be imposed I'm
der the statute an ordinace was enacted
in which it was provided that a maximum
fine of 800 might be imposed and mini
mum fine of SO Held. that the penalty
limits prescribed in the statute and that
the fixing of the minimum penalty in no
way conflicted with the statute
All the Justices concurring
a true copy
Attest: D. A. VALENTINE
lSeal1 Clerk Supreme Court
The Topeka state journal., 1913-10-15
No. is, ,413.
L. NJ. Kuhn, Appellee,

L. NJ. Kuhn, Appellee,
Edmund O. Wise, Appellant.
Appeal from Cowley County.
AFFIRMED.
Syllabus. By the Court. Benson, j.
l. Where a power of attorney to sell
and convey real estate is fraudulently OBJ
tained from the owner of the property,
and sale is made purporting to be under
the power to a person having knowledge
The Topeka state journal., 1913-10-15
No. 18,14S.
Metz, ct al, Appellees,

No. 18, 14S.
s. Metz, ct al, Appellees,
The Chicago. Rock Island & Pacific Rail-
way Company, Appellant.
Appeal from Dickinson County.
REVERSED.
Syllabus. By the Court. Smith, ].
l. The shipment from Burr Oak, Illi-
nofs to Abilene. Kansas, was an inter
state shipment and was governed by the
statutes of the United States and the
federal decisions interpreting those
statutes.
2 The law applicable to this case is
determined by the Supreme Court of the
United States in the Croninger case. cited
in the opinion, follows: "a common
carrier cannot exempt himself from la
bI1ty for his own negligence that of
his employees, but the rigor of this rule
may be modified by a fair, reasonable
and Just agreement with the shipper
which does not include exemption from
such negligence: and the right to receive
compensation commensurate with the risk
involves the right to agree upon rates
proportionate with the value of the prop
erty transported
All the justices concurring.
true copy.
Attest: D A. VALENTINE.
fSeall Clerk Supreme Court