davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No 1925.
American Surety Company of New York, a
corporation, Appellee,


American Surety Company of New York, a
corporation, Appellee,
Maryland Casualty Company, corpora
ton, appellant.
Appeal from Cherokee County.
Syllabus. B2 the Court. Porter, ].
1. While process Is served against a de-
PENDANT corporation in the wrong name and
against 1t is as valid as if rendered against
it in the right name. The failure to plead
?. The New Century Zinc and Mining
Company, corporation organized under
the laws of Delaware, was sued by an en-
ployee to recover damages for personal in
turies. The petition and summons de-
scribed the defendant as The New Cen
alleged that it was a Kansas corporation.
The summons was served upon the presi-
dent of the company; an answer was filed
Company" as defendant, and the cause was
tried and Judgment rendered against de-
PENDANT. On appeal to the supreme court
the Judgment was affirmed. In no manner
was the misnomer brought to the attention
OF the district or supreme court. HELD,
that failure to file plea In abatement
waived the misnomer, and that after the
Judgment 1t Is too late for the defendant,
privity with it. to question the fact that the
company was sued, or the validity of the
Judgment.
B. A casualty company issued a policy
indemnfying a corporation from liability
for injuries to its employees and agreeing
10 ueIelu All SUITS drought dEhiuSl IT. II
defended such an action where the cor
poration was sued bV the wrong name and
Judgment was taken against the defendant.
HELD, after the affirmance of the judg-
ment on appeal It is too late for the
casualty company to question the validity
OF the Judgment, or its own liability to a
surety company which signed the super
sedas bond and took an assignment of the
policy as security for money advanced to
satisfy the Judgment.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
lSeal. Clerk supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 1870.
o. P. Brooks, Appellant,


o. p. Brooks, Appellant
Walter Z. Campbell and Elmer Beeler
AppeIlees.
Appeal from Montgomery County.
AFFIRMED.
Syllabus. By the Court Dawson, ]
l. When partnership business is
closed out, a cause of action for an ae-
counting and settlement arises between
the partners, under an implied contract
mutually and equally to share the profits
and bear the burdens of the partnership.
?. A partnership business was closed
out in April, 1905. An action for an ac-
counting and settlement and for moneys
due to one partner from the other part
ners was not begun until September, 1913.
Held. that such action was barred by the
statute of Limitations Civ. Code, Sec. II,
subdiv. p
s. a partnership of three members es-
tabIished a business at Ardmore, Okla
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
LEGAL

electric warning bell stationed at the cross
ing is ringing, are not guilty of wantcn-
ness, although they fail TO ring the engine
bell or sound the whistle for the crossing.
and although they go through the city at
the rate of forty five miles per hour.
All the Justices concurring.
A true copy.
Attest: u. A. VALENTINE.
1Seall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
D. A. VALENTINE,
Clerk Supreme Court
No. 20,53S.
The City of Perry, Plaintiff.

The City of Perry, Plaintiff.
W. f Davis, as State Auditor. etc. Defend
ant
original Proceeding in Mandamus.
Writ Allowed.
Syllabus BY the Court Mason. T.
Under a status requiring a notice of an
election, to vote on a proposal to issue
city bonds to be signed by the mayor ana
city clerk, and published the mere fact
that the publication through inadvertence
onits the signature of the mayor is not
sufficlent to tnvalidate the election or
bonds issued Hereunder. where an ortfi-
nance calling the election covered all the
details required to be stated in the notice.
aud those who voted for the bonds con-
sututed majority of all the qualified
electors of the city.
All the Justices concurrine
true copy.
Attest: u. A VALENTINE
tSeal. Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
d. A. VALENTINE,
Clerk Supreme Court.
No. 1897.
Jennie D. Fiechter. Appellant,

Ernest E. Ffechter. Appellee.
Appeal from Decatur County. y
= REVERSED. n
Syllabus By the Court. Porter, J.
trict court to preside during the trial of
cases; and where, over the objections of
one of the parties. he calls the clerk to
preside at the argument of a case and
leaves the court room. very slight show
ing Of prejudice is sufficient to authorize
a reversal of the Judgment with direction
to grant a new trial
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
tSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 1892.
Emily j. Wells, Appellant,


Matilda Hansen. Nels Hansen, j. r. Richey
and Thomas Kent Appellees-
Appeal from Wyandotte County.
Third Division.
REVERSED.
Syllabus. By the Court Marshall, ].
L A cause of action against an agent for
the renting. of real property is stated in a
petition which alleges that the agent con-
tracted at the time of renting the property
to repair walk thereon; that afterward,
being requested by the tenant to repair the
walk, the agent employed a man to do the
work whom he knew to be careless, negli-
gent, and incompetent; that after some re-
pairs had been made the agent informed the
plaintiff. wife of the tenant, that the walk
had been inspected and repaired and was
all right and safe for her USE although
after being repaired the walk was in a
dangerous and unsafe condition; and that
the dangerous condition OF the walk caused
her to fall and break her arm.
2. In such a case a cause of action is
stated against the workman where the petit
ton alleges that the workman employed to
make the repairs, after making some re-
pairs informed the plaintiff, the tenant g
wife, that the walk had been inspected and
repaired and was all right and safe for her
use; alleges that the walk after being re-
dition; and that the plaintiff was injured
by reason of the defect in the walk.
3. A petition which fails to state a cause
of action may be amended so as to make it
state a cause of action. although some of
the defendants may not be residents of the
county in which the petition is filed and
may be attacking the Jurisdiction of the
All the Justices concurring.
Attest: d. A VALENTINE,
[Seal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 19.69S.
A. ]. Freeman, Appellant,


A J. Freeman, Appellant,
G A Scherer. ct al, Appellees.
Appeal from Dickinson County.
AFFIRMED. % ~.
Syllabus. By the Court. Johnston C J
/. A ditch was dug In a highway by a
land owner and the public officers to drain
water from the highway as well as from
the adjoining land and an embankment or
dixie was made on the side of the ditch which
served to prevent the water from passing
upon the land on that side of the highway.
After the enactment of Chapter IT'S of the
Laws OF 1911 which related to drainage the
ditch was deepened and the dixie enlarged
by the owners of the adjoining lands. the
better to serve the purpose for which they
were originally made. Another land owner
brought an action to prevent the main
tenance of the dixie alleging that it in
terfered with the flow of surface water
from his land. 1t appeared that the main
injury to his land since the dixie was re-
built and that there was no reasonable
probability that il would do SO. Held,
that the mere apprehension or possibility
of injury did not warrant the granting
of an injunction, nor is a party entitled
to that remedy unless he satisfactorily
shows that the injury is likely to occur
and that his remedy at law is inadequate.
2 One who seeks equity must do equity,
and if an applicant for an injunction has
encouraged, invited or contributed to the
acted wrongfuliy and Illegally in respect to
1t, he is not entitled to the relief.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
(Seal.J Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
d. A. VALENTINE,
Clerk Supreme Court.
No. Polls.
The State of Kansas. ex rel.
Agnes Bjorn, Appellant,

No. 2o,11S
The State of Kansas ex rel.
Agnes Bjorn, Appellant,
Robert Creager, Appellee
Appeal from Mcpherson County.
AFFIRMED.
Syllabus. By the Court. Burch, T.
1. 1t is a proper defense in an action
for bastardy that the motive which actu-
ated the prosecutriX in making the charge
was to obtain a large sum of money from
the parents of the defendant, who was not
guilty.
2. In an action for bastardy evidence
probable date of conception the relatrix
associated with young man other than
the defendant under circumstances which
offered az much opportunity and as much
likelihood of improper conduct with him
as with the defendant.
3. The law presumes morality and up
rightness of conduct until the contrary is
established and 1t is not error to instruct
the jury. trying an action for bastardy, in
which the defendant denies the charge,
that the defendant is presumed to be in
nocent until it has been proved to the
satisfaction of the jury by preponder-
ance of the evidence that he is the father
| of the relatrix's child
| that the motion for new trial on the
| ground of newly discovered evidence was
| properly overruled because of lack of
| ing the evidence and because the evidence
was merely cumulative
8. Nineteen other assignments Of error
examined and held to present no sufficient
| ground for reversal.
| All the Justices concurring.
| true copy. -
| Attest: D. A. VALENTINE.
| fSeal.] Clerk Supreme Court.
| No 1e, S72-Consolidated-No. 20.162.
| No. 1852.
The wyandotte Coal and Lime Company,
| Appellee,
|
| (wyandotte Paving and Construction
| Company, ct al
Southern Surety Company, Appellant
Appeal from Wyandotte County.
Division g.
| AFFIHMED.
No. 20.162.
The Wyandotte Coal and Lime Company
| Appellee,
| (wyandotte Paving and Construction
| Company. ct ALL
| Southern Surety Company, Appellant.
| Appeal from Wyandotte County
| Division l.
| AFFIRMED
Syllabus. BY the Court. Porter J.
| 1. Third persons such as guarantors
! sureties fndorsers, and the like, secon-
darby liable on one of several debts, can
not control the application which either the
debtor the creditor makes of payment
| and neither the debtor nor the creditor
| need apply the payment in the manner
most beneficial to such persons.
,. A surety company guaranteed pay
ment for materials used by a construction
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
D. A. VALENTINE,
Clerk Supreme Court.

No 1904
The Board of Commissioners of Wyandotte
County, Appellee,
W. W Haskell, ct al, Appellants.
Appeal from Wyandette District Court.
Div l.
AFFIRMED.
Syllabus. By the Court. West. j.
A special assessment to construct a
sewer was levied on land which 1t is claim
ed could not be drained or benefited by
such sewer. Held, that having let the
thirty day perior elapse for fnstituting
an action to set aside or in any way con
test or enjoin the levy, such defense Is now
barred.
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, 1916-02-19
No. 1890.

NO. l8,J4U. 4 =
The Board of County Commissioners Of
Jefferson County, Appellant,
VS..
The Delaware River Drainage District Of
Jefferson County. Appellee.
Appeal from jefferson County
Syllabus. BY the Court. Porter, ].
\ drainage district organized under
chapter 215 of the Laws of 1905 is a public
corporation created by the Legislature to
perform public functions Neither by com
mon law nor by statute is any duty i'm
posed upon the drainage district to build
or maintain bridges where its bitches cross
a public highway, and therefore the board
of county commissioners can not maintain
an action against the district to recover
the expense of constructing such bridges.
All the Justices concurr1ng.
A true copy.
Attest: d. A. VALENTINE,
GSeaLl Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
IEGAIl.

No. 1922.
Dra Garrett and James Garrett, AppeheeS


II. NJ Beers. Appellant.
Appeal from Wyandotte county
AFFIltMED.
S,-Tlabus Bv the Court. Dawson, j.
Where a plainiff has acquired Town
lot and has entered into possession unue of
a contract of purchase, he is t9e UM Ya mi
IL SO far as concerns his right 10 maintain
an action for damages to the PIoPethtSii 10 VI,
> An act of God" as known IN the , nav
is an act of irresistible superhunlan cdu5t
s1cb oS no reasonable human foresight,
prudence, diligence and care can ciP"'e
a flood caused by a heavy and pro
tracted rain no greater than mao la ti
''many a time before" within the u .i ~
IF a mans experience is not such an n.y.
~ cod as will excuse one who changes tne
natural course Of stream lhto ef he
channel which is inadequate 10 49, 49, hnrinS
waters without damage 10 helshD"ii"S
J. Although the title to property may iEta BE
vested in n wife her husband may SUI 81
himself to liability as its owner Dy d0'S u
dominion and control over it,.ss firm
: Where a husbands business llIi ~
co1tribnifed n large sum of money towards
the purchase of n tract OF lanu IN it sd
husband joined in plating II ~ 20 veor
dition. maid the taxes from year TO E1 eui :
,b9p1ed the course of 4 stream WhiGn
flowed through it, advertised Iois IN ane
addition sold such lots ana receiver paaff
, tbberefar and gave receipts in MS
own name he may be haple US 49, tHe
the negligent manner o OF ait6ou9h the
tifle 10 the property was taken ana heiu
in the name of his wife. o. +bo
G. Where for his own me pg g9pGse of 'ne
Strenm he must use due care 70 ~ ~
~ e' stream with a new channel Of SUI th
ficient capacity to carry Off not 0hy bi trf
1870 a. may reasonably be anticipated
from heavy and pToEaeted Fains Of aH Carrying MaS
Lns Oh ,uI,tbnnt damage to neighbOring prop
III the Justices concurring.
A true copy. ,r,D-,rrD-rr
Attest: -, a. NAl-l-., ,l Conrt
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19

NO. 1881.
The Capital City Vitrified Brick and Paw
ing Company, Appellant,
VS..
The COncordia Lumber Company. Appellee.
Appeal from Cloud County.
DISMISSED.
Syllabus. BY the Court. Johnston, c. ].
To obtain review of rulings upon the
admission Of evidence, or of questions
WHICH depend upon the evidence. a trans
cript of the stenOgrapher's notes of the
testimony and the proceedings at the trial
should be procured and filed in the way
prescribed In Sec 574 of the Civil Code and
where n complete transcript has not been
made and filed, and there is no agreement
Of counsel that the record presented con-
tains all the evidence on any particular
issue or matter, no questions arising on
the evidence can be considered. and as
the only questions assigned for error in
this appeal require the consideration of
the evidence which has not been trans
cribed. the appeal must be dismissed.
All the justices concurring.
A true copy.
Attest: d. A. VALENTINE
GSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 1851.
J. c. Webster. Appellee.

No. 1851.
J. c. Webster, Appellee.
Herman Broker. Appellant
Appeal from Douglas County.
AFFIRMED.
Syllabus. BY the Court Porter. ].
In an action before n Justice the bill Of
particulars stated a cause of action for the
recovery Of $500; the prayer asked judg-
ment for that sum with interest from the
day the action was begun; judgment was
rendered for $500; HELD. that the prayer
was no part Of the statement of the cause
Of action. that the amount sued for was
$500. and that the justice court and the
district court on appeal had jurisdiction.
All the Justices concurring.
A true copy.
Attest: n. A. VALENTINE
fSeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
d. A. VALENTINE,
Clerk Supreme Court.

No. 2O,117.
L. c. Ross and Z. {. Waldo, copartners,
doing business under the firm name and
style of Ross 6 Waldo, Appellees,
VS..
s. ]. Holman. Appellant
Appeal from Ellis County.
II REVERSED AND REMANDED.lIl
Syllabus. BY the Court. Marshall, J.
1. The legality Of the consideration for
a note sued on is put In issue by an an
swer which alleges that there no
legal consideration for the note and sets
out the Illegal transaction out Of which
the Indebtedness arose for which the note
was given.
2 In an action on a promissory note,
where the defense is that the considers
ton for the note was an Indebtedness in
Cured in transactions prohibited by law,
and there is evidence tending to support
that defense, It is error to refuse to give
an instruction submitting that question to
the jury.
8. In such an action, where tine evidence
is conflicting it is not error to refuse to
render judgment for the defendant on the
pleadings and the evidence.
All the Justices concurrfng.
A true copy.
Attest: d. A. VALENTINE.
ISeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 19,901.
John Butler, Appellee,

No. 10 901.
John Butler, Appellee.
City of Kansas City. Kansas, Appellant
Appeal from Wyandotte Comfy. second
Division.
REVERSED.
Syllabus. By the Court. Porter J
l. Where a municipal corporation main
tains u pest-house for the treatment and
isolation of persons who have been eX-
posed to or affected with smallpox it per
forms a governmental duty.
2. The rule that the governmental
agencies of the state are not liable in an
action of tort for either misfeasance or
nonfeasanee is applied to an action against
a city to recover damages for personal
injuries resulting from the defective con-
dition of the floor of a pest-house where
plaintiff who was affected with smallpox
was confined by the city authorities.
All the Justices eoncurTing-
true copy.
Attest: ID. A. VALENTINE,
lSeaLa Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19

No. 1o9O9
Mary J. Jacobs. Appellee.
The Atchison, Topeka & Santa Fe Railway
Company, Appellant.
Appeal from Sedgwick County.
Second Division.
REVERSED.
Syllabus. By the Court. Marshall, J.
l. 1t is such negligence as will prevent
a recovery for injuries sustained for a
driver of an automobile to attempt to
cross a railroad track at grade crossin z
without looking or listening for the APP
proach of a train, although an electric
warning bell is maintained at the crossing
and the bell is not ringing.
2 Engine men in charge Of locomotive
attached to a passenger train who cut off
the steam and apply the air one quarter
of a mile before reaching a street crossing
in a small city, and who suppose that an
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 19,Ss2.
John F. Hansen, Appellant,

John F. Hansen, Appellant,
The Missouri Pacific Railway Company,
Appellee.
Appeal from Mcpherson County.
AFFIRMED.
Syllabus. By the Court Mason. ].
Where a plaintiff moves for a continu-
ance on the ground that on account of his
poverty he has not been able to look up
the evidence and find witnesses to prove
his case, a denial of the motion is justified
by evidence that he had brought previous
action on the same cause, which he had
dismissed when it was brought to trial,
suing again just before the expiration of
a year.
All the Justices concurrfng.
A true copy.
Attest: D. A. VALENTINE.
[Seal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19


The Wetnone State Bank Corporation,
Appellee,
R. ]. Courier and Amanda E. Courier, his
pas,,,. wife APBpellees: ~. .,,a An
pellants.
Appeal from kearney County.
AFFIRMED.
Syllabus. BY the Court. Dawson. J.
1. On the filing of a petition TO open
Judgment it is not necessary to issue
new summons to a defendant who had
permitted the judgment to be taken
against him by default
.. Rule followed that summons is not
necessary when voluntary general APP
pearance is entered
g. A general appearance is entered by
defendant, lal when he files a motion to
make plaintiffs petition more definite and
certain; (b) when he joins in stipulation
that paintiff may have further time to
h1 su PeSR when Sss when h he fes ana
swer to the cross petition of his eo-defend-
ant
4. Rule followed that the allowance or
refusal TO allow amendments TO pleadings
is within the sound discretion of the trial
court.
8. A foreclosure action is properly
brought in the county where the land is
situated. and the grantee of the mortgaged
land who had assumed and agreed to pay
the mortgage is a proper party defendant
in such action.
6. When upon due demand. a defendant
grantee of a tract of land is unable or IN
willing to produce the deed conveying the
title to him. secondary evidence of its con-
Iehts is admlssable although uhe record OF
the register of deeds shows q purPorFed
copy of the deed, it being the contention
of the demandant that the registers record
is an inaccurate copy of the original deed.
4 Rule announced in The State V.
keehn, 50 Kan. 1G5. 11S Pac. S51, that by
agreement of the itigants and with the
approval of the trial judge in open court,
the verdict of the jury may be received by
a designated attorney in the absence Of the
| trial judge, followed and applied.
! All the Justices eoneurring.
A true copy.
Attest: d. A. VALENTINE.
lSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
LEGAL.

company in paving certain streets. Another
construction company with the same Of
ficers and the same general manage had
contract for paving certain other streets.
and each company purchased its materials
from plaintiff. HELD. that the evidence is
sufficient to support a finding that certain
checks signed by the first construction
manager Of both companies with direction
to credit the same to the account OF the
second company were properly applied as
directed, and that under the circumstances
in evidence the surety company cannot
complain
All the Justices concurr1ng.
true copy.
Attest: D. A VALENTINE,
ISeal.J Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-02-19
No. 1884.
Fanny NJ. Cooper, Appellant,


Susan II. Seaverns, Appellee.
Appeal from Wallace County.
AFFIRMED.
Syllabus BY the Court. Rurch. J
l. A cause of action for SANDER may be
pleaded as a set-off in an action for SANDER
(Civ. Code Sec 1000 and may be so plea ded
under the circumstances referred to in sec
ton 1O2 of the Civil Code although not pre-
sented until after the expiration of the
one year period of limitation
2. In an action for SANDER 1t is suf-
ffcient If the very SANDER charged be es-
tablished by proof of substantially the
language alleged in the petition and an
instruction to the jury is not prejudicially
erroneous which states that recovery may
charged in the petition or language of
Identical import or substantially the same
were uttered.
All the Justices concurring.
A true copy. -
Attest: D. A VALENTINE
[Seall Clerk Supreme Court.
No 10 500
The Stockton Elevator and Shipping Asso-
citation, Appellee,
The Missouri Pacific Railway Company,
Appellant.
Appeal from Rocks County.
REVERSED.
Syllabus. By the Court Mason, J.
1. A question of practice held not neces-
sary to be decided
p A shipment of goods consigned TO q
state commerce, Notwithstanding an actual