davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14

No. 20.757.
A S. Bennett, Doing Business as The Ben
nett Commission Company, Appellant,
The st. Marys Grain Company, A Corpora
ton. Appellee.
Appeal from Shawnee County.
(Eirst Division)
MODIFIED.
Syllabus. BY the Court West J.
1. The provisions of section 1925 of the
General Statutes of 1915 relating to bills of
lading and the liability hereunder of rail
way companies do not preclude the buyer
of grain from recovering against the seller
for a shortage in the amount paid for
2. An affidavit for punishment instead
of stating that the defendant had no prop
erty liable to execution sufficient to satisfy
the plaintiffs demand as required by sec
ton 7121 of the General Statutes of 1915,
stated that it had mo property liable to
execution sufficient to satisfy the plain
tiff's demand in this (Shawnee) county"
Held. that the defendant voluntarily APP
peared and without objection gave bond
releasing the property attached it cannot
now be heard to question the validity of
the punishment affidavit.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 20,797.
F. r. Fitzpatrick, Appellee,

F. r. Fitzpatrick, Appellee,
John Crowther, ct al, Appellants, ]. W.
Crowley, Jr., ct al, Appellees.
Appeal from Saline County.
REVERSED.
Syllabus. By the Court. Porter. j.
l. general warranty deed conveyed
twenty -four lots described by numbers and
as fronting on certain streets 'all in Jones'
addition to the city of Salina, Kansas.
Held, the plat of the addition mentioned
being then record became a part of
the deed for the purpose of identifying
the property and for certainty in the
description to the same effect as If the
reference to the addition had been followed
by the phrase according to the recorded
plat thereof
,. general warranty deed described
the property conveyed as twenty-four lots
by numbers and fronting on certain
streets "all in Jones addition to the city
of Salina. Kansas, according to the record
ed plat thereof" Held, the recorded plat
became a part of the deed fully as
though incorporated therein, but only for
the purpose of identifying the property
and rendering the description more certain,
and the grantor did not by such reference
to the plat thereby represent or guarantee
the courses, distances. measurements or
quantity of the lots to be as set forth in
the recorded plat.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
LEGAL.

No. 2O,791
Frank j. Mackie, ct al, Appellants,
The Grand Lodge of Ancient Order of
United Workmen of Kansas, Appellee.
Appeal from Lyon County.
REVERSED.
Syllabus. By the Court. Marshall, J.
Where a demurrer to evidence is sus-
tanned, error in excluding material and
competent evidence will compel a reversal
of the judgment if the evidence excluded,
together with that admitted, is sufficient
TO make prima facie case as against the
demurrer
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 20.T24.
Ezra Pever, Appellant,

The Atchison. Topeka * Santa Fe Railway
Company, Appellee.
Appeal from Montgomery County
AFFIRMED.
Syllabus. BY the Court. Burch, j.
The action was one for damages for in
Jury to a tract of 40 acres of land. caused
by enlargement through operation of the
forces of nature of ditch rightfully and
properly dug by the railway company on
its right of way to drain its roadbed.
The ditch had deprived the plaintiff of the
use of three and one quarter acres of land
adjoining the right of way. Damages were
claimed for this injury, and for deprecta-
tion in the market value of the entire
tract occasioned by tine ditch. Held.
cause of action accrued when the ditch in
vaded the plaintiffs land, damages for
permanent injury were then recoverable
if desired, and the action was barred be-
cause not commenced within two years at
ter the cause of action accrued.
All the Justices concurrlng.
A true copy. -
Attest: d. A VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 2O,764.
NJ. Alexander, Appellant,

No. 20,7
NJ. Alexander, Appellant,
VS..
John Clarkson, ct al, Appellees
Appeal from Cowley County.
AFFIRMED.
Syllabus. By the Court Dawson. 7.
1. All matters involved in the litigation
reported in Alexander V. GARRISON, 96 Kan.
ia. $50 Pac. .576 are judicata
,. Before one Judgment can be set off
against another Judgment. there must be
mutuality in those judgments and no con-
travening equities.
). Where a garnishment proceeding has
been commenced by filing a petition. Civ
ing bond, and service of summons. but the
garnishee makes no answer and issues are
not joined, no Judgment entered and no
no claim against the debtor in such
abortive garnishment proceeding by ac--
quiring an assignment of Judgment
against the debtor rendered in another ac-
ton.
for a bona fide antecedent indebtedness,
the consideration for such assignment is
sufficient
eral Statutes Of 1901, is an enlargement
and not a restriction of the methods of
service of notice of an attorneys lien, and
the service Of a written notice of such lien
upon the attorneys of record for. the adj
Noftzger v. Moffett, IS Kan 354, ,O g Pae.
go.
g. In certain prior litigation one of the
defendants herein had recovered a judg
ment against the present plaintiff, and an
attorneys lien hal been properly served
the plaintiff. and subject to that lien
the successful defendant in the prior case
had assigned his judgment to a banks
trustee security for a bona fide indebt-
edness of long standing. After the at
tachment of this lien and after the assign
ment of the Judgment, the plaintiff ac-
quired by assignment Judgment against
his Judgment creditor and another, and
commenced a proceeding against the debt
Ors under the Judgment assigned to him
and against the attorneys holding the lien
on the Judgment against him and against
the trustee holding that Judgment. In this
latter proceeding the plaintiff sought to
have the merits of the original judgments
reconsidered. which in effect meant to open
them. and to set off the Judgment he had
acquired against two of the defendants
against the judgment against himself. and
to restrain the enforcement of the judg-
ment against him. Held that the former
judgments were judicata, that the judg-
ment against him and the one he had
acquired were not mutual, and that the
contravening equities based on the prior
assignment Of the judgment against him
and the attorneys lien thereon would not
permit a set-off between the judgments.
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, 1917-04-14
No. 2O,TS7.

No. 20,ISI.
o. l.. Ring, Appellee,
The Phoenix Assurance Co, Ltd, of Lon
don, Appellant.
Appeal from Stafford County.
MODIFIED.
Syllabus. By the Court West, J.
L. When the case was called for trial
and the jury were in the box the plain
tiff was permitted to amend his petition
by fnterlineation increasing the per cent
of loss and the sum sued for. The de-
PENDANT objected but made no request for
delay and proceeded with the trial Held
that granting such permission was not
error.
2. A tender of a substantial sum in full
settlement of the plaintiffs claims operat-
ed as waiver of all claimed defects in
the proof of loss and of the proof itself
notwithstanding a provision of the policy
that no one could waive such proofs
}. The defendant, a fire insurance COM
pany of London, not shown to have been
authorized to do a hail insurance business
In this state is not liable for an attorney
fee although admitting in its answer its
authority to do such business here. there
being no statutory authority for the al
lowance of such fee.
All the Justices concurring
a true copy.
Attest: D. A. VALENTINE,
(Seal-) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
LEGAL.

tional form of government approved Feb,
ruary II, 1917, is valid and const1tut1onal
enactment so far as its operation and eff
feet is challenged in this action.
2. The provision in the act when re-
TO submit to the electors the question of
the adoption of the new form of govern,
ment upon the filing of petition signed
total number of legally qualified electors
voting for mayor at the last preceding city
election" is construed to mean that the
petition must be signed by twenty-five
per cent of the number of legally quail
fled votes cast for mayor at the last cleo
ton, without reference to the individuals
who cast them
All the Justices concurring-
A true copy. Attest:
ID. A. VALENTINE.
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 20,S11.
Chester l. Long, Appellee,


The Kansas City, Mexico & Orient Railroad
Company, Appellant.
Appeal from Sedgwick County.
AFFIRMED.
Syllabus. BY the Court. Marshall. j.
1. After case has been called for trial,
it is within the judicial discretion of the
trial court to refuse permission TO amend
pleadings so as to present new issues; and
unless there has been an abuse of discre-
ton, new trial will not be ordered
=. The evidence introduced by the plain
tiff proved the cause of action alleged in
the petition; and Il demurrer to the evil
dence properly overruled.
3. The special question submitted by
the court was within the issues raised by
the pleadings, and the answer of the jury
was supported by evidence. There was
no error in submitting the question.
4. The instructions properly submitted
the issues to the jury under the pleadings
and the evidence.
). There was no variance between the
petition and the plaintiffs evidence.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
d. A. VALENTINE,
Clerk Supreme Court.
No. 2O715.
Hannah +. Brown. Lola F. Gregg, and
Clara A. kasbeer, Appellants

No. 20.715.
Hannah F. Brown. Lola F. Gregg, and
Clara A. Kasbeer, Appellants,
VS..
N. T. Paul, Frank Swonger and Frank
McCollum, as County Commissioners of
Anderson County, Kansas; J. w. Brace
well, as Trustee of Lone Elm Town
ship, Anderson County. Kansas: Earl
Chatterton, as Trustee of Ozark Town
ship. Anderson County, Kansas: Ross
Williams, as Road Overseer. Road Dis
trict No 1S Anderson County. Kansas:
and J. r. Herynk, as Road Overseer of
Road District No. s, Anderson County,
Kansas,
Appeal from Anderson County.
MODIFIED.
Syllabus. By the Court West, J.
way. no notice of the view being served
on the wife, joint life tenant, who lived
in the county and no notice in fact to
or waived by her. Held. that as to her
the proceedings were void. (Gen. Stat
. A warranty deed was made to a son
of the grantors subject to the conditions
''The above described premises to be-
long to the said Ira H. Kasbeer during
his life and to his wife Jointly If he
should marry and while she remains his
wife, or his widow, and in case he dies
and leaves no issue and his widow should
marry again. then the title to the said
premises shall vest in the legal heirs of
the said Ira H Kasbeer, excepting the
said widow marrying. with the ap-
purtenanees, and all the estate title and
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
ID. A. VALENTINE,
Clerk Supreme Court.
| No. 81 .24S.
The Eberhardt Construction Company,
| Plaintiff,

No. 81 .24S
The Eberhardt Construction Company,
Plaintiff,
The Board of County Commissioners of the
County of Sedgwick, Defendant.
Original Proceeding in Mandamus.
WRIT DENIED.
Syllabus Bv the Court Mason. ].
l. Where public officers who have en-
tered into a contract in that capacity
fuse to recognize its obligations solely by
reason of a mistaken view of pure ques-
ton of law, their compliance with IL may
be enforced by mandamus; but it does not
follow that where the controlling body of
a municipality. in the exercise of its judg-
ment as to public policy. sees fit to refuse
to proceed with a contract. preferring to
answer in damages, it can be held to spe-
cific performance by a writ of mandamus.
3 The statute requiring the notice of
a special election to vote bonds, for the
erection of a county jail. to be published
in a newspaper for" thirty lays before
the time set, is not complied with where the
notice is omitted from the last issue of
the paper prior to the date named.
3 The fact that the election was held
upon the same day as the state primary
does not alter its character a special
election
T. The failure to publish the notice of
such an election for the full period re-
quired by the statute renders the election
void
5. The county board has no power to
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 20,761.
Deroy Daniclson, ct al, Appellees,

No. 20 161.
Deroy Daniclson, ct al, Appellees,
Michael Reichert. ct al, and e. ID. Nixon,
ct al, Interpleaders, Appellants.
Appeal from Cheyenne County
AFFIRMED.
Syllabus. By the Court. Marshall j.
l. chattel mortgage on growing corn
described as "our undivided three-fourths
interest in 100 acres of corn now growing
on a described quarter section of land,
does not include the growing corn owned
by the mortgagors on the remaining
quarter sections of land in the same sec
ton, as against a subsequent attaching
creditor, although there are but ten acres
of corn growing on the quarter section
described, and there are ninety acres OF
corn owned by the mortgagor, growing on
the other quarter sections in the same
section.
p In an action before a justice of the
peace, third parties claiming attached
property, who, on their application, are
made parties defendant. have right to
appeal from a Judgment rendered by the
justice of the peace denying their claims
to the property
All the Justices concurring.
A true copy. Attest: -
ID. A. VALENTINE.
ISeal.l Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
LEGAL.

provide for the erection of a Jail without
a vote of the people, and a contract made
under color of an election held without
the required notice having been given is
unenforceabe.
g. The rule that ordinarily the finding
of public body as to the steps taken pre-
liminary to its action is conclusive does not
apply to the situation stated.
Z. A county can not be required to carry
out such a contract on the ground of estop-
pei resulting from the dealings of the COM
missioners with the contractor, fer the rea-
son that the rights of the public are in
volved.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
d. A. VALENTINE,
Clerk Supreme Court.
No. 20.153.
Victor II. Haglund, Appellee,

The Burdick State Bank, ct al, Appellants.
Appeal from Morris County.
AFFIRMED.
Syllabus BY the Court: Burch, ].
l. In a proceeding supplemental to eX-
ecutiou. a sheriff holding a warrant issued
under the provisions of section 1929. Gen
eral Statutes 1915. authorizing him to
arrest the debtor and bringing him before
the probate judge, has no power to i'm
prison the debtor in the county jail. even
temporarily for safe keeping and this is
true although the arrest be made at dis
lance from the county seat, which the
sheriff, returning with the debtor in Gus
tOdy. can not reach until late at night,
when the probate judge would not be at
his office.
. An instruction to the jury complain
ed of was properly given and findings of
fact returned by the jury were sustained
by the evidence.
All the Justices concurring.
A true copy. -
Attest: ID. A VALENTINE,
ISeaII Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14

No 20.I94.
Jacob Corbett, Appellant,
VS..
Edwin S. Cohen, executor of the estate of
Jacob H Cohen, deceased. and Pauline
Harbaugh, Appellees-
Appeal from kearny County.
AFFIRMED.
Syllabus. BY the Court. Burch, J
The proceedings examined and held to
disclose no misconception of law on the
part of the court in stating findings of
fact Held further, the findings were
sustained by the evidence.
All the Justices concurring-
A true copy.
Attest: D. A VALENTINE.
ISeal.J Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. POSTS.
Joseph NJ. Dever, Appellant,

No. 2OS1S.
Joseph NJ. Dever, Appellant
The Eureka Bank. etc. Appellee.
Appeal from Clay County.
AFFIRMED.
Syllabus By the Court. Dawson. T.
l. One who purchases property pendente
lite is bound by the decree in the pending
suit and that decree is not subject to col
lateral attack at the instigation of the pur-
chaser
= Where irregularities occur in a
sheriffs sale of property which has been
subjected to mortgage foreclosure, one
who purchases the interest of the mortgagor
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
LEGAL

in the foreclosure suit after the mortgagor
as defendant has been served with sum-
mons must make his complaint of such
irregularities in the foreclosure suit, and
Will not be heard to complain thereof by
a collateral attack in an Independent action
against the grantee holding the sheriff
deed pursuant to the mortgage foreclosure
sale.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal.l Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 20, 500.
The Atchison Savings Bank, Appellant,
w. A. Potter, Appellee.
Appeal from Logan County

w. A. Potter, Appellee.
Appeal from Logan County.
REVERSED.
Syllabus BY the Court. West, J.
1. In this case it was not error to re-
fuse instruction touching the matter
of waiver.
p Under the rule requiring the harmon
ization of special findings with themselves
and with the general verdict the one re-
turned by the jury touching knowledge of
the circumstances under which the note
sued on was obtained by the plaintiff did
not constitute sufficient inconsistency to
warrant a reversal.
). When a party is charged with having
made fraudulent representations others OF
similar character made about the same
time to other persons may be shown in
order to shed light upon the question of
motive, but such statements made by 9TH
ers in the absence of the person charged
are incompetent.
4. The statute prohibiting the transfer
Stat. 1915. SOD is for the protection Of
creditors but between the buyer and
seller of stock the transfer may be binding
>. The stock of bank in a failing con-
dition may still be sufficient considera-
ton for note given for its purchase and
in this case 1t error to instruct that
no legal sale could be made il the bank
was in a failing condition and that the
note given therefor would be without con-
sideration If such stock could not at the
time be legally transferred.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
tSeaL) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14

No. 20, 796.
L. E. Gardner, ct al, Appellants
The Board of Commissioners of The Civ
OF Leavenworth, ct al, Appellees.
Appeal from Leavenworth County
AFFIRMED.
Syllabus. BY the Court. Mason ]
l. In an action to enjoin the collection
of a special assessment for the cost of a
sewer, on the ground that the amount is
too large the question whether by the
adoption of a different plan the same
benefits might have been obtained for the
property in question, at a less cost is
not open to inquiry.
2 The fact that the city. has not sup
piled water for use in flushing, is not
bar to the collection of special assess
ments for the cost of a sewer
3. In an action to en- join the collection
of assessments against the property in a
sub district for the cost of a lateral
sewer, no relief can be had because of any
inequalities in the apportionment of the
cost of the main sewer which has become
final and unassailable.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
tSeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 20.5T2.
William J. Kirsch, Appellee,

The Postal Telegraph Cable Company,
Appellant.
Appeal from Saline County.
REVERSED.
Syllabus. By the Court. West. j.
1. Under the CHrmack amendment part
1. U. :. stat. at Large, ch. 309) an inter
state telegraph company may by contract
limit its liability for non delivery of an
unrepeated message to the amount paid
for its transmission even in case of gross
negligence.
. The initial carrier is liable for the
negligence of any of its connecting car
riers.
All the Justices concurring.
Dawson, j., concurring specially.
A true copy.
Attest: d. A. VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 1852.
Walter Henning, Appellee,

No. 2O.592.
Walter Henning, Appellee,
The Wichita Natural Gas Company, ct al,
Appellants.
Appeal from Butler County.
AFFIRMED.
Syllabus. By the Court. Marshall, J.
cause allegations are stricken out of De-
titicn. where the evidence to prove those
allegations was properly introduced under
the remaining allegations.
,. Ordinarily judgment will not be
reversed because of error in placing the
burden of proof in a trial by the court
without jury, where each party has am
pie opportunity to introduce evidence to
support his contentious.
3. An oil and gas lease provided: "It
is agreed that should said Beck make a
see commences operations to drill on said
land and refunds to lessee all money paid
Beck, then lessee is to cancel this lease"
An absolute sale of the property was made
One of the purposes of the sale was to de-
feat the rights of the lessee. Held that the
lessee was deprived of its right to drill on
the premises. since the sale was made be-
fore. the lessee commenced operations to
drill
+. The driving of a stake locating a gas
well and of another stake locating a place
to set a boiler to drive drilling machinery
does not constitute commencement of
operations to drill, under the provisions
of the lease set out in the third section of
this syllabus.
All the Justices concurring.
A true cor.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
II. a NALEN i n E,
Clerk Supreme Court.

No. 20.519.
Mary T. Walsh, Administrative, Etc, APP
pellant,
The Joplin & Pfttsburg Railway Company,
Appellee.
Appeal from Crawford County.
AFFIRMED.
Syllabus. By the Court Marshall. J.
l. Where a trial court grants a new
trial for the reason that the verdict is not
sustained by the evidence, but is contrary
thereto, and for the further reason that
the court erred in overruling a demurrer
to the evidence. the order granting the new
trial will not be set aside on the ground
that the court did not err in overruling the
demurrer to the evidence.
, Under the circumstances disclosed in
the first section of this syllabus, an order
of the trial court granting a new trial will
not be set aside where the evidence is
conflicting.
ALI the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
[SealJ Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-04-14
No. 2O,TT1.
Earl Easdale, Appellee,

The Atchison, Topeka & Santa Fe Railway
Company, Appellant
Appeal from Franklin County.
REVERSED AND REMANDED
Syllabus. By the Court Burch J
l. Continuous transportation of a car
containing household goods and horses
from West Plains. No, to Princeton, Kan
under separate billing. by the St Louis
& San Francisco Railway Company from
West Plains to Kansas City, No, and by
the Atchison, Topeka & Santa Fe Railway
Company from Argentine. Kan. to Prince
ton. held to be interstate, although the
shipper intended when the car started to
unload the horses at Kansas City and
drive them to Princeton.
3 The Santa Fe was not at liberty to
waive in favor of the shipper a provision
of its contract with him limiting the time
within which an action might be com
menced to six months.
All the Justices concurring.
e. A true copy.
Attest: u. A VALENTINE,
(Seai) Clerk Supreme Court.