davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
d. A. VALENTINE,
Clerk Supreme Court.
(First Published in The Topeka State
journal. July 3, 1919

July 2 1917
NOTICE CONCERNING THE DEPOSIT
OF STATE FUNDS. ~
To Whom 1t May Concern:
The undersigned. the Board of Treasury
Examiners OF the State of Kansas. hereby
give notice that on the 1st day of Sep
proposals from the Incorporated banks do
ing business in Kansas, both national and
state. for the deposit of public funds OF
this State will be received In accordance
Session Laws of 1905. Said proposals shall
state the amount of funds any bank de-
sfres and the rate OF interest II VIII pay
on daily balances, and that said bank VIII
required of 1t, provided the award to such
bank, said Board of Treasury ExanfnerE
reserving the right to limit the amount OF
funds deposited and to reject any and all
proposals for such funds.
Each proposal shall be accompanied by
certified check in the sum OF two hundred
and fifty dollars payable to the state
Treasurer, to be forfeited for the use OF
ply with the terms Of its proposal. IL the
same shall be accepted by the Board OK
Treasury Examiners: otherwise, to be re-
turned to the bank.
posted with the State Treasurer on or be-,
fore the date named In such notice and
shall have written thereon, Proposal fors
deposit Of State Funds" and shall not be
the date stated in the notice. -
Banks desiring to make bids may write
the State Treasurer for blanks. -
Done at the capitol In Topeka. this "a
ARTHUR CAPPER. ~
Governor. i
]. T. BOTKIN,
Secretary Of state.
f. w. KNAPP, g.
Auditor OF State
BOARD OF TREASURY FXAMINERs
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
LEGAL.

tiff's reply and rendering judgment in
favor of defendants for costs the demurrer
should have been carried back to the an
swer and sustained thereto, and Judgment
given in plaintiffs favor for the amount
due on the note sued upon.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
No. 20,946
Edith E. Fairchild ct al, Appellants.
VS.
The City of Holton, ct al, Appellees.
A L..I.


The City of Holton, ct al, Appellees.
Appeal from jackson County.
AFFIRMED.
Syllabus. By the Court Dawson ].
1. Under Il statute (Gen Stat. 1915,
1764) which authorizes the mayor aud COM
missioners of a city of the second class to
pave a street when they deem it necessary
TO do so, subject to the right of the resi-
dent owners Of more than one-haf of the
property subject to taxation for such paw
ing to protest and thus prevent the pro-
iected improvement it is immaterial wheth-
er the mayor and commissioners deter
mined the necessity for the paving upon
consider the matter on petition of resi-
dent property owners
?. Seven blocks of a street had been
paved; it was proposed to pave three blocks
of the same street: and there was one In
tervening block between the completed and
the proposed paving. A protest by the resi-
dents Of the Intervening block against the
proposed paving of the three blocks was
without legal effect and could not prevent
the proposed paving. since such professionals
were not affected by the proposed paving
3. 1t takes nothing from the force of
syllabus that when the proposed three
blocks of paving are completed the in
tervening block can be paved to connect the
two paved portions of the street under an
other statute claws 1911, oh. 1922 at the
discretion of the city and without the
sanction or acquiescenee of the property
+. No court can enjoin city and its
officers from the bona fide exercise Of Of
llCidi poNeTS CIedrlH COAISEIeu upOh
by statute. and a court can only interfere
where official powers are clearly abused
a fact non existent in the instant case.
D. Where city and it's officials are law
fully undertaking to pave a portion of a
street, and the project is interrupted by in
sufficient protests and later by a proposed
ordinance initiated by electors under sec
ton 1861 of the General Statutes of 1915
and the proposed ordinance is submitted to
the people at an election and defeated, the
proposed ordinance is no longer of any
effect. and ii does not prevent the city
and its officials from proceeding with the
project to pave the street as originally I'M
dertaken.
q. An ordinary city ordinance for the
paving of portion of street with YER
teal fibre brick on concrete base with
asphalt filler is not mere amendment
to an ordinance proposed and defeated by
the people and which had provided for the
paving with a one-course concrete pave
ment not less than six inches thick
All the justices concurring.
A true copy.
Attest: n. A. VALENTINE.
(Seal.) Clerk supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
T. A. VALENTINE,
Clerk Supreme Court.
No. 2O.a5a.

The Lenvenworth City and rt Ieaven-
worth Water company, corporation
Appellee,
The City of Leavenworth 4 municipal
corporation. Appellant
Appeal from Leavenwor.I, County.
AFFIRMED.
Syllabus. by the Court. Mason I
In an action against u city Tor the serv
ices of a utility which is under the con-
troll of the state public utilities commits
sion. charges being made at ne rate fixed
by that body. no defense o. partial de-
tense is established by evi lence that n
lower rate had been agreed uDon between
the parties. and that the Plaintiff had
served other persons at a l1wer RATE and
had in various ways violated city ordi-
nances and rules of the utilities com
mission.
All the Justices concurring.
\ true copy.
Attest; n. A. VALENTINE.
(Seall Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
No. 20,7S1.
W. D. Makemson. Appellee,

No. 2o7s1.
W. D. Makemson. Appellee,
vS.
]. A. Edwards. Appellant
Appeal from Haskell County
AFFIRMED.
Syllabus. BY the Court West. J.
The plaintiff sued a local and resi-
dent defendant Jointly, alleging damage
done to his property by their cattle The
nonresident defendant Joined in mo-
tion to make a third party defendant and
a motion to require plaintiff to make his
petition more definite and certain and
stipulation for time in which to amend the
petition. including Il continuance VIII the
case was called for trial he demanded
jury and none being in attendance con-
tinuanee was had until the next regular
term, when, the case being again called
he filed an amendment to his answer TO the
effect that the local defendant was In no
wise interested in the action or liable to
plaintiff and had been Joined only for the
purpose of attempting to give the court
jurisdiction over the non resident and OBJ
jecting to the jurisdiction of the court
At the close of the plaintiffs testimony
the non resident defendant demurred there
to as affecting the local defendant. which
demurrer was sustained. Thereupon he de-
INJURED to such testimony as to himself
and moved a dismissal on the ground that
the court had jurisdiction TO render
Judgment against him, a nonresident he
cause there was no Substantial case against
Mccracken the local defendant. Held. that
having appeared generally in the action
without raising the question of jurisdic-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
(First Published In Topeka State Journal,
Thursday, July IL. 1917 p
NOTICE no CONSTRUCTORS.

Sealed proposals will be received by the
Board of Education Of School District No.
36, Shawnee County, Kansas. until the
hour of 90 O'Clock p. IN. Friday, August
10th. 1917, for the erection and completion
of the basement portion of the new addi-
ton to the present school building, ac-
cording to the plans and specifications pre-
pared for same by Frank c. Squires, Archf-
tect, Topeka, Kansas. -.
Proposals shall be addressed 10 the Board
of Education. School District No. 80. Oak
land. Kansas, and are to be accompanied
by a check (certifiedD for three per cent.
Ce3ef) of bid. made payable TO &. Poorf.
Treasurer. of the Board, guaranteeing that
IL successful, bidder win enter into . con-
tract to fully complete the work at agreed
time, and viii furnish satisfactory Surety
and Statutory Lien Bond covering statu-
tory liens in an approved Surety Companr.
Application for plans will be made to tie
Architect
The Board reserves the right to reject
any or all bids.
FRED LUDINGTON, Chairman, =
Oakland, Kansas.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
No. 20.S95.
r INGALLS,. Annellee

No. 20,S95.
r. r. ingalls,, Appellee,
j. w. Smith, Appellant.
Appeal from Cowley County.
AFFIRMED.
Syllabus. By the Court. Burch J
The proceedings examined, and held, that
the matters complained of were determined
by the decision of this court on the occasion
OF former appeal.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
(Seal.) Clerk supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
LEGAL.

juries resulting from a crossing collision.
where the defendants only negligence was
in running the train at sixteen miles an
hour, and the plaintiff while driving team
at ordinary walk could have seen the
train when it was 300 feet away and he
was 90 feet from the track. and there
was nothing to prevent his turning to one
side excepting his fear and excitement.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE.
(SeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
No. 20,7S3.
Edward D. Lingo, Appellant.

Edward D. Lingo, Appellant,
VS..
J. r. Gentry and Mrs. J. t. Gentry, his
wife. Appellees.
Appeal from Seward County.
AFFIRMED.
Syllabus. BY the Court. Bnrch. J.
Forgetting that he had granted an agent
exclusive authority to sell his land within
a stipulated period, a landowner author
lied another agent to sell the land. Both
agents made sales within the period. Held,
the court did not abuse its discretion in
denying specific performance of the sale
made by the agent last appointed.
All the Justices concurring.
A true copy.
Attest: y. A. VALENTINE.
(SeaL) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
D. A. VALENTINE,
Clerk Supreme Court.
No. 2O.97G

No. 2O9I6.
The Grand Lodge of Kansas, The Ancient
Order of United Workmen, Appellant,
VS..
The Emporia National Bank. Emporia,
Kansas. The Citizens National Bank, EN-
poria, Kansas. Appellees-
Appeal from Lyon County.
REVERSED.
Syllabus. BY the Court. Marshall, J.
l. fraternaI beneficiary association
was induced, through forged papers. to is
an order on its depository bank for
the payment of money. The evidence
showed that the endorsement of the name
of the purported payee named in the order
was forged. The case is governed by
United Workmen v. Bank, % Kan. SIG, 142
Pac. 974, 90 Kan. 80. 144 Pac 257.
3 Under the third subdivision of section
6536 of the General Statutes of 1915. ne
gotiabe order for the payment of money,
must. to make 1t payable to bearer, be
knowingly drawn payable to non-eXistent
person.
All the Justices concurring.
A true copy. -
Attest: D, A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
D. A. VALENTINE.
Clerk Supreme Court.
No on.nl1
No. 20,957.
In re Estate of Mary j. Culbartson. Harlan
Taylor, Admir-. ct al, Appellees,

No. 20,951.
In re Estate of Mary j. CuIbartson, Harlan
Taylor, Admir-. ct al, Appellees
Rachel A. Davis, Appellant.
No. 2095S
Maggie Mcguire, Appellee
Rachel A. Davis, Appellant
Appeals from Allen County
AFFIRMED.
Syllabus. BY the Court. Porter T.
In partition suit the lands were Dar-
titioned and sold and by consent of III the
pHrties the court ordered n portion of the
proceeds impounded in cou;t to abide the
judgment afterwards to be rendered on
other issues, the proceeds to stand as the
land itself, the court retaining Jurisdiction
of the cause for the determination of all
the untried issues. One of the PARTIES
who had an interest in the land died he
fore final judgment and her administer
tor and persons having claims against her
estate were made pa ties. On the facts
stated in the opinion it is s.eId that the
court had authority to allo the admin
istrators claim for services. attorneys
fees, costs and expenses of litigation and
claims against the estate, and to make
them liens against the fund GI.u to appor-
tion costs and -ttorneys' fees between the
original parties upon an eQ table basis
All the Justices cOncurring
true copy.
Attest: y. A. VALENTINE,
tSealD clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
No. 2o,155.
Katherine Ryan, Appellee,

katherine Ryan, Appellee,
vs.
John @. Myers, Administrator, ct al, Ap~-
pellants.
Appeal from Jackson County.
AFFIRMED. fA
syllabus. By the Court. Marshall, ~
l. A written contract settling all items
of Indebtedness existing between the
parties thereto on the day it is signed, M
cludes all debts then existing, but ex-
cludes those thereafter arising. ~
\ person who files and procures the
allowance of claims against the estate of a
deceased person, and at the same time has
knowledge that he has another separate ana
Independent cause of action against the
estate and the administrator, is not pre-
Guided by such knowledge from recovering
on such separate cause of action.
All the Justices concurring except Daw-
son, j.. who did not sit sD
A true copy.
Attest: ID. A. VALENTINE. -
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
No. 2G.9E.

No. 20 300.
Wallace c. Randall and Harry l.. Randall
AppeIlees,
$. u. Randall, ct al. Appellants
Appeal from Johnson County
AFFIRMED.
Syllabus. BY the Court. Burch J.
]. Rulings striking out evidence, admit
ting evidence. denying a motion to open the
case for further testimony. and denying a
motion to amend an answer TO Introduce a
new issue. considered and approved.
. ON the hearing of motion addressed
to the discretion of the court and SUD-
ported by affidnvits. it is not error for
the court to receive and consider counter
affidavits tending to refnte the facts stated
in the affidavits supporting: che motion and
presenting other grounds for denying the
motion.
All the Justices concurring-
A trne copy.
Attest: ID. A. VALENTINE,
(Seai) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
No. 20,991.
A. V. Roberts. Appellee,

A. V. Roberts. Appellee,
The Southern Surety Company, Appellant.
Appeal from Sedgwick County.
division No. p
AFFIRMED.
Syllabus. BY the Court. Burch. J.
The proceedings considered, and held
that the controversy is closed by special
findings of fact returned by the jury.
All the Justices concurrng.
A true copy.
Attest: D. A. VALENTINE
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
No. 20.19a.
Joel \. Moler, Appellee.

VS..
The Chicago. Rock Island and Pacific
Railway Company. Appellant
Appeal from Jewell County.
REVERSED.
Syllabus. BY the Court Mason. J.
The rule that contributory negligence
is. not TO be ascribed matter OF law
TO one who. through bewilderment. makes
an injudicious choice of means of escape
from a sudden peril. does rot apply in an
action against a railway company for in
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
D. A. VALENTINE.
Clerk supreme Court.
No. 2e,g59
The Union Central Life Insurance Com
pany, Appellee, $3.50

No 2og59
The Union Central Life Insurance Com
pany, Appellee, 80
vs..
W. r. Harvey, Appellant. .--
Appeal from Chautauqua County.
AFFIRMED
Syllabus. BY the Court. West, J.
1. A sale under mortgage foreclosure of
two separate tracts of land in each OF
two counties was made and confirmed
That part of such sale proceedings relating
to the lands in the county other than where
the action was brought was void and could
be set aside at any time.
>. 1t was not error to refuse to set aside
such judgment, order, sale and confirma-
ton, on the defendants motion filed some
sixteen months after such CONTINUATION,
and several weeks after the plaintiff had
moved to set aside the proceedings as to
the land in the other county and issue an
order of sale to the sheriff thereof. Nor
was it error to deny the defendants mo-
ton to set aside such last mentioned order
OF sale.
3. Needless costs made by irregularities
in such proceedings can be adjusted on a
motion to retaX.
4. In mortgage foreclosure sale an
appraisemeat is not required.
>. 1t is not necessary in such sale to post
notices thereof in county where a news
paper is regularly published.
All the justices concurring.
A true copy.
Attest: d. A. VALENTINE.
(Seal) Clerk Supren e Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
No. 20,799.

No. 20.799.
Edgar A. Rohrbaugh, Appellant,
Alex Cunningham. f. L. Cunningham, w.
o. Munkers and Carrie E. Munkers, APP
pellees.
Appeal from Sedgwick County.
division No. Il
- REVERSED AND REMANDED.
Syllabus. BY the Court P1rter. J.
The pieadings examined and held. that
instead of sustaining "a demurrer to plain
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
No. 20,660.
The State of Kansas, Appellee,

+. A McLemore, Appellant. ar-
OPINION ON REHEARING, REVERSED
Syllabus. BY the Court, Marshall, III
A Judgment in criminal action will
be reversed where numerous errors have
been committed which affect the substanss
tial rights of the defendant and prevent htsI
having fair trial. u
Johnston, C. j., Burch, J., Porter, il,
West, j., and Dawson, j., concurring. Vet
Marshall J., and Mason, j., dissenting.
A true copy. 11n
Attest. D. A. VALENTINE 20
(Seal) Clerk Supreme Court. -
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
No. 2G,910.
II. Bigger, Appellee,

No. 2G91O.
Ii. Bigger Appellee,
J. NJ. Read, Doing Business as The Topeka
Planning Mill Company, Appellant.
Appeal from Shawnee County.
division No. -
AFFIRMED.
OPINION DENYING A REHEARING.
Syllabus. By the Court. Marshall, T.
Under section $3.50, and under subdivision
Oh of section 1896 of the General Statutes
of 1915 the triers of fact must determine,
as a question of fact, whether or not a
guard provided in obedience to section
$3.50, or voluntarily furnished under sec
ton 1896, is safe, reasonable, and proper.
All the justices concurring.
A true copy. r
Attest: d. A. VALENTINE.
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
ID. A. VALENTINE.
Clerk Supreme Court.
No. 20,759.
G.. C. Butler, Appellee,

No. 20,759.
G. c. Butler, Appellee,
John f. Miner, ct al. IF. l.. Goodnight},
Appellant. ~
Appeal from Clark County.
REVERSED AND REMANDED.
Syllabus. BY the Court Porter. j.
Where motion for a new trial is filed on
the ground that the verdict and findings
are contrary to the evidence, and the trial
judge in everything the motion makes
statement from which this court is doubt
full whether he intended to give his APP
proval to the verdict, or overruled the mo-
ton and rendered judgment on the verdict
and findings because they were sustained
by some positive evidence. held. the 1udg-
ment should be reversed and the cause re-
with directions that a new trial be-
granted unless the trial judge shall mako
a finding that he approves the verdict, and
in case the verdict Is approved, the judg-
ment will be affirmed.
All the Justices concurring.
A true copy. -
Attest: d. A. VALENTINE.
tSeal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
No. 21,152
J. II. Ruth, Appellee,

NO. H,Iog-
J. II. Ruth, Appellee,
The Witherspoon- Englar Company, Appel
liant.
Appeal from Wyandotte County.
Third Division.
Rehearing Denied.
Syllabus. by the Court. Marshall. J.
Under the workmen's compensation act.
where trial by jury is demanded and
special questions answered, but no
general verdict is returned. a judgment
compelled by the answers to the questions
will not be reversed.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
((Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
d. A. VALENTINE,
Clerk Supreme Court.

No. 209S1
William C. Niblack. as Receiver, etc, APP
pellee,
Knox as Trustee, etc. Qnterpleaderl, APP
pellants.
Second National Bank, etc, Appellees,
Samuel F. Knox tdefendant) and Samuel
+. Knox as Trustee, etc. (interpleader),
Appellants.
Joseph H. Barnett, Appellee,
VS..
Samuel F. Knox (defendant and Samuel F.
Knox, as Trustee, etc, dnterpleader), APP
pellants.
Girard National Bank, etc, Appellee
Samuel F. Knox (defendant) and Samuel
F. Knox as Trustee, etc. dnterpleader),
Appellants.
Birmingham & Seaman Co, etc, Appellee,
Samuel F. Knox (defendanD and Samuel
F. Knox as Trustee, etc., t(fnterpleaderl,
Appellants.
Peterson Linotype Company, etc, Appellee,
Samuel F. Knox (defendant) and Samuel F.
Knox, as Trustee, etc, Qnterpleader),
Appeii"N''' No. 2obse.
Central Trust Company, etc. Appellee.
Samuel F. Knox tdefendanD and Samuel F.
Knox as Trustee, etc, tinterpleader),
Appellants.
Consolidated.
Appeal from Allen County.
REVERSED.
syllabus. By the Court. West j.
1. The will of a testator in substance
gave to trustees certain lands in Allen
county which at the death of his last sur
viving child were to be equally divided be-
tween his then surviving descendants per
stripes and not per capita. Two of the
children who Wore trustees under the will
4lts 9th =
the widow to take under the will and al
leGing that complications had arisen and
the estate could not he safely administered
except under the direction of a
of the Will being indefinite, uncer-
proper relief. The result was Il decree that
such land could not he further managed
under the trust without manifest prejudice
and that pursuant to certain contracts en-
tered into between the two sons who were
the defendants il WIS partitioned between
trustees and the two brothers who had
! been awarded the Allen comfy land were
! appointed their successors. Thereafter
plaintiffs. judgment creditors of one OF
these SONS. sought by this action 70 subfe-,
/ his part of this land TO the payment OF
setting up his trusteeship under the will
but without avail. Held. that as in none
/ of the proceedings referred to- including
/ the present action. were the Erandchildre'
I of the testator the real beueflciaries under
the win in respect TO the Allen county
tee should have been permitted to show this
{ actual facts concerning the title.
2. While as between the plaintiffs ant
the defendant personally the latter nigh
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
No. 2O.939.
Elizabeth Sluder, Appellee,


Elizabeth Sluder, Appellee,
The National Americans. Appellant.
Appeal from Reno County
AFFIPMED.
Syllabus. BY the Court. Johnston. c. =.
1. A member of a fraternal beneficiary
association may ordinarily change the ben
eficiary the terms of his contract re-
CARELESS of the wishes the CONSENT of
his beneficiary. but If change is at
tempted when the member does not have
mental capacity to transact business
make contracts the original certificate and
contract will remain in force.
p Upon the death of a member the in
choate right of a beneficiary ripens into
contract right and he may then raise the
question that the member was mentally
incompetent when he attempted to change
or surrender the CONTRACT u insurance.
and If that fact is established the bene-
ficiary is entitled to recover the benefit
the same as If no attempt had been made
to change the original contract
All the Justices concurriDg.
A true copy.
Attest: II. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13
LEGAL.


ton such demurrer and motion 10 dismiss
were properly oyerruled.
All the Justices concurrins.
4 true copy.
Attest: ID. A. VALENTINE
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-07-13

No. 20 945.
J. A. Clark. Appellee,
vs..
w. G Tandy, ct al. Appellants.
Appeal from Shawnee County.
(Second Division
AFFIRMED.
Syllabus. BY the Court Marshall, J.
!. An attack. by stranger on a sher-