davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15
d. A. VALENTINE,
Clerk Supreme Court.

No. 20.OST.
Cahiu Swift Manufacturing Company, APP
pellant,
vs..
t. p Hayes. ct al. Appellee.
Appeal from Sedgwick County Division
No. Two.
REVERSED.
Syllabus. BY the Court. Dawson. j.
1. When a judgment is taken by default
and Il motion to set 1t aside is filed, service
of notice of the motion is waived when the
plaintiff appears and contests the motion
on various non-jurisdictional grounds.
>. One against whom Il lawsuit is pend
ing does not enter appearance therein when
he IS only in attendance in. court as Il wit
ness duly served with a subpoena.
3. city court having jurisdiction SINH
lar to that of a Justice of the peace does
not lose jurisdiction of the parties under
section 637T of the General Statutes of 1909
which provides that defendant is not
bound to remain longer than one hour after
the time fixed for his appes rance. if the
plaintiff does not appear, unless the evil
dencc is clear and convincing that the
plaintiff failed to appear within the hour.
4. When defendant has been regularly
sued and regularly summoned in case
regularly entered on the official docket of
city court. the court does not lose juris-
diction of the defendant because the case
against him is not entered on an unofficial
trial docket prepared by the clerk of the
court for the judges convenience nor be-
cause the judge by mistake tells the de-
PENDANT that there is no case set for that
date.
5 Where two defendants are sued in Il
city court as partners and one of the de-
PENDANTS asks for and obtains a contin-
uance of the case, the court does not
thereby lose jurisdiction to render Il judg-
ment on later date TO which the action
was continued against the codefendant who
present and ready for trial on the
day and hour when the case was first set.
All the Justices eoncurring.
A true copy.
Attest: d. A. VALENTINE,
iSeal-l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15
No. 30O4f
No. 20, 046.
Robert H. Jackson, Appellee,

NO ZU,U4b-
Robert H. Jackson, Appellee,
The Uncle Sam Oil Company of Kansas,
Appellant
Appeal from Sedgwiek County. First Di-
vision
AFFIRMED.
Syllabus BY Ire Court Marshall. j.
1. motion to require a plaintiff To
make his petition more definite and Ger
tain by setting out facts which are evil
dentiary in their nature is properly denied,
where the ultimate facts to be proved are
alleged.
, The petition and demurrer thereto
have been examined. and it is held that
the demurrer was properly overruled.
, A trial court does not commit error
in excluding incompetent and irrevelant
evidence, although objection is made by
the party against whom the evidence is
attempted to be introduced.
4. Certain contentious of error in the
admission and exclusion of evidence have
been examined and found not sufficiently
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15

No. lB,S2O.
J. W. Saylor, ct al, Appellees,

Edwin R. Crocker.. ct al, (Thomas H.
Murray and J.. II. Jackson, Appelants)
Appeal from Labette County.
AFFIRMED.
Syllabus. BY the Court Dawson, J.
l. Rule followed that attaching or
Judgment creditor cannot subject to the
satisfaction of his claim Judgment any
greater interest in property than that own
2 Where a debtor holds only the naked
legal title to property and that title was
vested in him only as a mortgagee. and the
mortgage itself was unenforcible and void.
attaching Judgment creditor cannot
subject such property to the payment of
the debts or Judgment liabilities of the
debtor.
3. The plaintiff purchased from a patent
holder of crude oil burner an agency con-
contracts. The agency contract was
characteristic scheme in the nature of AN
endless chain" and void against public
policy. TIE secure the purchase price of the
the patent holder a deed to some
property, the deed being intended
and Judgment creditor of the patentee
sought to subject the property to the sat
isfaction of his claim and judgment against
the patent holder. Held. that the fact that
the plaintiff, I'm the original contract. was
in equal wrong with the patent holder will
not prevent court of equity from grantin <
plaintiff relief when its refusal to do so
would in effect give countenance. force and
effect to the original Illegal contract be-
tween the plaintiff and the patentee and
carry its consequences even further than
the contracting parties Intended.
4. Where proper findings of fact based
upon the evidence have been made. it is
judicial reasoning is announced by the
trial court in arriving at its decision when
the decision itself is correct.
All the Justices concurrtng.
Attest: ID. a. VALENTINE.
[Seal.I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15


the jury declaring the liability of each
partner on a partnership note issued in
furtherance of the partnership business,
Notwithstanding that other instructions
may properly have been given covering
the lawful defenses pleaded by the de-
PENDANT partner.
T. In an action on a partnership note
the right of the plaintiff holder to recover
thereon is not affected by question
whether the proceeds of the note were in
fact used for the benefit of the firm or
its business.
All the Justices concurring.
A trne copy
Attest: D. A VALENTINE
lSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15
LEGAL.

and decided on the former appeal
;. To prevent the possibility of q mis-
carriage of justice the court has examined
all the assignments of relating to
matters which were or which might have
been decided on the former appeal and is
satisfied that the defendant has not been
prejudiced in any of its substantial rights
4. The refusal of the trial court to sub
nit to the jury certain special findings of
fact held to be without prejudice in view
of other findings of fact which were re-
turned.
All the Justices concurring.
A true copy
Attest: d. A. VALENTINE,
lSeall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15
No. 20 12i
The Badger Lumber Company, a corpora
ton, Appellant,

Il
ton, Appellant,
VS..
Amanda L. Collinson Appellee.
Appeal from Cowley County.
REVERSED.
Syllabus By the Court. West ].
l. A petition to foreclose a lien for ma
terial alleged that over three hundred dol
lars had been paid on the account. In the
exhibits the subcontractor's statement
named the owner S. d. c., the notice of
its filing giving her name as Mrs. s. ID. c..
and the petition averring that the property
belonged to Amanda L. c., and that she is
the same person the one named in such
notice. After demurrer had been over
ruled the petition was permitted to be
amended by inserting Mrs before the
name in the subcontractor's statement.
Held that such amendment was proper al
though.made more than one year after the
filing of the lien. (Gen. Stat. 1909, Sec.
624S).
, In passing on the motion for leave so
named in the lien statement is the defend
ant Amanda L. c. and that she has been
commonly known and designated in her
business transactions in the community in
which she lives Mrs. S. d. c." There
after defendants motion for judgment on
the pleadfngs was sustained. Held, error.
3. One may without abandoning his real
name and without fraudulent intent, adopt
any name different from his and by which
he may transact business, execute contracts,
and be sued.
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, 1916-04-15
No. 20,O40.
Kate Belle Coblentz, Appellee,

David Putifer ct al. Appellants.
Appeal from Reno County.
AFFIRMED.
Syllabus. By the Court. Dawson. J
/. RUE followed that persons enjoying
n confidential relationship with the grantur
Of gifts inter vivos have the burden of
showing that such gifts were made without
undue influence.
>. Rule followed that the fact of undue
influence is ordinarily a proper question
for the jury.
,. The facts surrounding gifts of land
and personally by a mother to her three
sons about three days before her death and
during her last illness, and other at
tendant and related circumstances. eN-
amined and held sufficient to present fair
question of undue influence in an action
by n daughter who was deprived of share
Of her mothers estate by the gifts in con-
trOversy.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE
tSeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15

The Leavenworth National Bank. of Leav-
enworth, Kansas, ct al, All corporations.
H. V. Reilly. as County Treasurer of Leav-
enworth county, Kansas, ct al, De-
Original Proceeding in Mandamus.
Writ Denied.
Syllabus. By the Court Dawson. j.
1. The term fiscal year" is the year
embraced in the annual term for the OPEN
ing and closing of financial accounts.
county for the regulation of its county fl
nances and for the opening and closing
second Tuesday in October of each year.
3. The issue of warrants in any one
fiscal year t. defray the general expenses
maximum revenues which the levy for that
fiscal year will produce and is deter
minable by u calculation applying the levy
to the assessed valuation of the county.
4. The board of county commissioners
of Leavenworth county has no power to
of current expenses in excess of the rev.
enues to be derived from the general tax
levy made to meet such expenses.
8. The board of county commissioners
of Leavenworth county has no power Ia
issue county warrants in any one year to
be redeemed by anticipating and impair
ing the revenues of succeeding years.
g. The board of county commissioners
of Leayenworth county has no power to
change the beginning of the fiscal year
from the second Tuesday of October, 1914,
to January 1, 1915, to serve the temporary
financial convenience of the county.
Z. The cases of Garfield Township VS..
Dodsworth, 0 Kan. App. 1872, IS Pac. 565,
and Garfield Township VS.. Hubbell, Kan
App. 7S5, 50 Pac. 600, disapproved as pre-
cedents governing the case at bar.
8. When county warrants have been is
sued in excess of the general maximum
revenue fund for the current fiscal year.
but for which the county got value re-
ceived, they can be paid in two ways; "a
by the slow collection of delinquent taxes
and miscellaneous items which may inure
to the general revenue fund or (2) by ap
plication to the legislature and obtaining
its sanction authorizing their payment out
of later general revenues of the county.
0. Where county warrants are void only
because issued in excess of the maximum
revenues derivable from the general levy
for the current fiscal year, the holders of
such warrants are subrogated to the rights
of the original creditors whose claims
against the county were the basis of such
void warrants; and If the claims were law
full the county is liable to the subrogated
holders of such claims and provision may
be made to meet their payment in future
annual levies, but no such future annual
levy can exceed the maximum fixed By
statute
All the Justices concurring-
true copy.
Attest: d. A. VALENTINE.
ISeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15
No. 20.097.
Motley L. Record, Appellee,

Carl Ellis, rs an individual and as Adj
ministrator, etc, ct al, Appellants.
Appeal from Meade County.
REVERSED.
Syllabus. by the Court. West. j.
l. Upon the question of recognition and
especially upon the affirmative of that
question almost all of the evidence was by
Deposition. Held, that on appeal such evil
dence will be reviewed.
.. The. testimony examined and found
not to support finding of general and
notorious recognition by the father of
the PLAINTIFFS sonship required by the
statute. Gen. stat. 1909, Sec. 205G).
Johnston, {. J., Buch, J., Mason. j.. Por-
ter !. and Dawson, j.. concurring West
! and Marshall. J.. dissenting from the
first syllabus and corresponding portion
of the opinion.
A true copy.
Attest d. A. VALENTINE.
ISeal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15
No. 19.900
The Van Arsdale- Osborne Brokerage Com
pany, Appellee,

No. 1890.
The Van Arsdale- Osborne Brokerage Com
pany, Appellee,
A. L. Jones and T.. NJ Jones, Appellants
Appeal from Sedgwick County.
division No. L.
AFFIlsMED.
Syllabus. By the Court Mason. ].
1. The record held not to show fraud in
procuring service upon a nonresident de-
PENDANT
2 The allowance of an amendment to
the reply without granting a continuance
held not to have been prejudicial.
,. The taking of case from the jury
held not to constitute material error, be-
cause, although formal Issue of fact was
presented, the real matters in controversy
turned wholly upon questions of law
l. Under a contract that where an in
surance solicitor should accept a premium
note he should be paid by his employer a
cash commission. to be charged back to
him if the note should remain unpaid for
six months after maturity. no provision be-
ing made fol- his subsequently receiving
credit for 1t under any circumstances. the
right of the agent to the commission ceases
when a note. without the fault of the en-
ployer, has remained unpaid and overdue
for six months. and is not restored by a
subsequent extension or collection
). In an action upon such contract to
recover from the agent commissions paid
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15
IEGA.
COURT SYLLABI

OUf nLiuE UUUnI OILLHDI
Continued from Preceding Page.l
Nos 1880 and 20125
Ida NJ Degitz, Appellee,
The Missouri Kansas & Texas Railway
Company, Appellant.
Appeal from Geary County.
AFFIRMED.
Marian Hauserman, Appellee,
The Missouri Kansas & Texas Railway
Company, Appellant
Appeal from Geary County.
AFFIRMED.
Syllabus. By the Court Johnston. c. j.
/. At "A junction Of two railroads Ger
tain track owned by one of the railroad
track and was used by both companies for
the purpose Of the transferring Of cars
from one line to the other. Before trans
fer was made, an inspection by the receiv-
ing company was required. and it was the
custom for the delivering company TO place
cars intended for transfer upon the trans
fer track. When they were so placed they
were supposed to be ready for inspection
by the inspectors Of the receiving company.
receiving company that an incoming train
had car of livestock intended for ship
ment over the line Of the receiving COM
pany which had train going out shortly
after the arrival Of the train of the other
company. When the train of the deliver
ing company pulled into the yard, it placed
three Of the cars Of the train apart from
the others upon the transfer track. one
Of the three was not intended for transfer
and an effort was made to take it out at
the north end Of the transfer track, but
that was found to be impracticable and the
three ears were then left together on the
transfer track where ears were custom
afily placed for inspection and transfer.
Inspectors of the receiving company then
proceeded TO make an inspection of the
stock car one of the three set apart.
The engines of the delivering company was
taken around on another track to the south
end Of the yard and there attached to the
remaining cars of its train. and without
any signal warning the train WAS pushed
up with considerable violence against the
three ears set apart. one of which was be-
Ing inspected, and the collision resulted IN
killing two inspectors In an action to re-
cover for their death ii is held that they
are to be regarded as invites and that I'M
der the circumstances the delivering com
pany bound to anticipate that in
spectOrs might be about the ears and that
rea souable care should have been exercised
aud reasonable warning given to them of
the approach of the train before cOlliding
with the ears set apart and whether
the delivering company was guilty of neg
ligence or whether the inspectors were
guilty Of cOntributory negligence were
questions for the determination of the jury.
The evidence examined and held to be
sufficient to support the special findings
made by the jury which in effect held that
the defendant was negligent and that the
deceased inspectors we're not guilty of con-
tributOry negligence.
All the Justices cOncurring.
A true copy.
Attest: d. A. VALENTINE.
lSeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15

him on notes that remained unpaid for six
months after maturity. it is not incum-
bent on the plaintiff to show that it had
taken affirmative steps to enforce their
collection.
6. Rulings concerning the admission and
rejection of evidence held not to constitute
prejudicial error.
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, 1916-04-15
No. 20,122.
W. A. Wehe, Appellee,

The Atchison. Topeka & Santa Fe Railway
Company, Appellant
Appeal from Shawnee County, First Di
vision.
REVERSED.
Syllabus. BY the Court Marshall j.
The driver of an automobile can not
recover damages for injury to himself an l
his machine, where he approaches rail-
way track at Il place at which he can not
see along the track until his automobile is
in a place where il will be struck by Il
passing engine cars, and does not stop
his car to ascertain whether or not there
is danger, although he listens before GO
ing into the place of danger and does not
hear any engine or cars coming.
Burch, J., Mason, J., Porter, J., West, J.
and Dawson, J., concurring. Johnston, e.
J., dissenting.
A true copy.
Attest. D. A. VALENTINE,
[Seal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15
No. 1860.
Ernestina Durant, Appellant,

NJ
Ernestina Durant, Appellant,
VS..
E. c. Whitcher. as Administrator, etc, ct
al, Appellees.
Appeal from Cloud County.
AFFIRMED.
Syllabus. By the Court Mason. ].
1. The rule applied that in an action
to set aside Il will the lawyer who drew
it may testify TO the conversation had at
the time between himself and the testator.
,. The sCrivener and subscribing wit
nesses of a will held to be competent wit
nesses as to the mental condition of the
testator.
8. The evidence held sufficient to sus-
tain Judgment upholding a will against
an attack the ground of want of ca
paeity and fraud
All the Justices concurring.
A true copy.
Attest: d. A VALENTINE,
[Seai.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15
d. A. VALENTINE.
Clerk Supreme Court.
No. 20.119.
Howard A. Miller, Appellee,


The Atchison. Topeka and Santa Fe Rail-
way Company, Appellant
Appeal from Cowley County.
REVERSED.
Syllabus. BY the Court Porter 7.
A contract for the transportation of an
Interstate shipment of livestock on the GUS
tomary printed form used by carriers and
signed by the carrier and the shipper con-
tanned a provision that no action should
loss injuries arising out Of the trans
portation unless commenced within six
months from the time the loss or injuries
occurred. 1t contained also number Of
provisions by which the carrier sought 70
limit its liability for loss occasioned by It's
own negligence which are against public
contract is not void in toto the ground
that it violates section 20 Of the Commerce
Carmack Amendment; that the contract
should be regarded as Invisible in view of
the approval of the interstate commerce
commission, and therefore plaintiffs fail
ure to commence his action within sig
months after the loss and injury occurred
bars his right to recover.
All the Justices concurring.
A true copy
Attest: ID. A. VALENTINE,
[SeaLl Clerk Guoreme Court
George J. Mcclure, as Trustee etc, Ar
peIIee,
The Freebron Engineering Construction Ca.
ETC. ct al, bankers Surety Company,
Appellant.
Appeal from Sedgwick County Division I.
AFFIRMED.
Syllabus. BY the Court. Porter J.
Failure to comply with a provision I'm an
indemnity bond issued by a surety cota
pany which required the obligee to give
written notice of the default within ten
days after learning of the fact is no de-
Tense to action on the bond where il IL
neither claimed nor proved that the COM
pany suffered any loss or damage from
County VS.. Guaranty Co., 96 Kan. o5J $50
Pac 500
All the JUSTICES concurring
A true copy.
Attest: d. A. VALENTINE,
tSealI Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15

NdIHIH a IIaTAs AppeIIIHI'
George ShOesmith. Executor, Emma Shoe
smith, and Lydia J. Clark, Appellees.
Appeal from Republic County.
AFFIRMED.
Syllabus. BY the Court. West, J.
The testimony examined and support
for the theories of both sides being found
therein. he rule that this court can moi
weigh competent conflicting oral evidence
is followed
All the Justices concurring.
true copy
Attest: d. A. VALENTINE.
[Seal.I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1916-04-15
No. 20.347.
B. F. Messick, Appellee,

George P. McEntire and r. n. McEntire
Partners, Appellants.
Appeal from Shawnee Countq.
Division 2
AFFIRMED.
syllabus. BY the Court. Porter J
In an action under the workmen's com
pensation act Claws 1011, Oh. 21S) the ad-
Initted facts showed that plaintiff was in
jured by being caught in the revolving
cylinders of a machine while standing in or
upon it and applying compressed air for
the purpose of cleaning the cylinders
Covers or hoods were provided for use
when the machine operation. but
in order to clean the machine the covers
had to be removed. The plaintiff could
have stood on the ground and applied the
air without danger of coming in contact
with the revolving cylinders. On these
facts and others stated in the opinion it is
held that plaintiff is not barred from the
right to recover compensation by the pro-
vision of section 1 of the compensation act
on the ground that his injury resulted
from his deliberate intent to cause the in
jury or from his wilful failure to use a
guard provided for him as protection
against accident.
All the ,stices concurring.
A true copy
Attest: D. A VALENTINE.
lSeaLl Clerk Supreme Court