davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17

No. 2O9s7
J. H. Detmer, Appellant,
vs.
Viola Salinger, Appellee,
No. Pill.
Viola Salinger, Appellee,
VS.
j. H. Detmer, Appellant.
Appeals from Sherman County.
AFFIRMED.
Syllabus By the Court. West, ].
L. Whether or not an affidavit sworn
to but not acknowledged before a notary
public that a certain mortgage was in
tended to have been q first lien and to
have been recorded before instead of af-
statute (s2O6S Gen Stat 1870 such af-
fidavit could not as to a stranger change
the priority Of the liens of such mort
cages already fixed by the times of their
, mortgage executed by the presi-
dent and secretary of a corporation, with
the corporate seal attached, was acknowl-
edged by such persons only, the certifi-
notary
Frank N johnson. and c. B. Striegal
of the lakewood Drug Co, who are per
sonalIy known TO me to be the same per-
sons who executed the within instrument
of writing and such persons duly acknowl
edged the execution of the same
Held. that such mortgage was not prop
erly recordable and its filing did not have
the effect to impair the lien of the prior
g. While evidence was introduced which
seemed to show that there was no affidavit
for publication filed in the suit to fore
close the mortgage. the court found and
it was recited in the decree that service
Of summons was duly and regularly made
by publication as provided by law. Held,
that such decree could not be set aside
for such seeming lack of an affidavit.
f. The summons was served by the
deputy sheriff of Jackson county, Mis-
souri,. and :he return was properly made
but was sworn to before notary public
OF that county and not before clerk OF
a court of record or a commissioner ap-
pointed by the governor of this state.
(Code. sS2). Held. that in view of the
headings and the facts and circumstances
shown such decree should not be set
aside because such return was not sworn
to before the proper officer.
All the Justices cOncurring.
4 true copy.
Attest: d A VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17

No. 20,SS4
In re The Estate of John d. Kappelman,
deceased. (The International Harvester
Company of America, Appellee,
Robert AIgie, as Administrator of the
Estate of John d. Kappelman, deceased,
Appellant)
Appeal from Washington County.
AFFIRMED.
syllabus. By the Court. Johnston, c. J..
1. Final settlement of the estate of a
deceased person is not to be made until
the estate is fully administered, and the
administrator should not be discharged
and released until his trust has been fully
performed and he has accounted for and
paid out all the moneys received by him,
as the law requires.
3 The payment of claims in excess OF
they are presented to and allowed by the
probate court is illegal and at his own
risk.
3. An administrator is not entitled TO
a final discharge and to have his sureties
exonerated from liability on his bond
leaving other legally established claims
of a preferred class unpaid, there being
insufficient moneys of the estate 70 pay
in full all valid claims against it.
4. Under the statutory rule Of CLASH
fication, all claims against an estate not
ing of the first letters are TO be assigned
to the sixth class regardless of the class
to which they would have been assigned
if presented within the firsC year, and
all duly exhibited demands of any of the
first five classes are entitled to prefer
All the Justices coneurring-
Attest: d A VALENTINE.
(Seal5 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
No. 20,941.
H. Halverson, Appellant


Quincy Blosser and Charles Blosser,
Appellees.
Appeal from Republic County.
AFFIRMED.
Syllabus By the Court Johnston, c. J.
1. An owner of an automobile is not
liable for injuries caused in its operation
by others unless such others were ser
wants or agents Of the owner and acting
in furtherance of his business.
.. Nor is he liable for injuries negli-
gently caused by persons to whom he
loaned the automobile to be used for their
own purposes, where it was not being
used at the time of the injury under his
direction or control or in any way con-
nected with his business.
3. The mere fact that the son of the
owner accepted an invitation from the
borrowers of an automobile to accom-
pany them on a trip and did so on his
own initiative, operated the machine a
part of the time, and was operating ii
when the injury was caused, does not
render the owner liable for injuries negli-
gently caused on the trip.
4. A prima facie case was not made out
by plaintiff when he showed that the de-
PENDANT was the owner of the automobile
which caused the injury, where the evil
dence offered by him In the same con-
nection showed that at the time of the in
jury the automobile was being used in
the business of the borrowers and not
that of the owner, and that those oper-
ating the machine were not in any way
under the direction or control of the
). To recover against the owner it de-
volved upon the plaintiff to show that
the persons in charge of the machine
were in some sense the servants or agents
of the owner and that they were engaged
in the owners business.
6. Under the circumstances shown. the
owner is not liable for injuries inflicted
by the persons in charge Of the auto
mobile because at the time he loaned the
machine it had a broken muffler and
was noisy in operation.
Z II n trial court can not approve the
verdict of a jury 1t is its duty to sci
il aside. and an order granting a new
trial herein without indicating the grounds
of the ruling where two of six grounds
of the motion for new trial were that
the verdict was contrary to the evidence
and the result Of passion and prejudice
Of the jury. should not be reversed or
this appeal.
All the Justices concurring.
A true copy.
Attest: n. A VALENTINE
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
No. n ,O0T.
Peter Engelbrecht, Appellant,


J. B. Harrington, as Executor, etc, APP
pellee.
Appeal from Shawnee County.
division No. II
AFFIRMED.
Syllabus. BY the Court Johnston, c. j.
An owner of land entered into a contract
with his son that if the son would remain
at home and help the father pay a mort
gage debt upon his farm he would leave
to the son one-h half of the farm at the
death of the father and mother, and the
son in accordance with the contract re-
manned ut home for about five years during
which time the mortgage debt was paid.
More than twenty six years after perform
ance by the son had been completed the
father conveyed the farm to a stranger,
and died without devising any part of the
land to the son. Held, in an action brought
by the son for specific performance, or for
damages in lieu of performance, that when
the father conveyed the land to another
and placed IT beyond his power to devise
one-half of the land to the son and per
formance by the father became a legal i'm
possibility a cause of action accrued at
once in favor of the son and from that
time the statute of limitations began to
run against him
All the Justices concurring-
A true copy. -
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
LEGAL,

on which he based his claim of title to the
real property. although that evidence may
not be admissible to prove title
.: A person. who is also party to an
action, may testify to conversatio which
occurred in his presence. between deceased
persons, where the opposite party claims
as heir of one of the deceased persons.
3. Proof that statements contained in
an affidavit for publication notice were
IA sc. is not sufficient to set aside the
Judgment based on such notice, on the
ground that the Judgment was obtained by
fraud, where those making the affidavit
believed that the statements contained
therein were true.
All the Justices concurring.
true copy.
Attest D. a VALENTINE,
lSeai.J Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
No. 20,92S.
W. H. Morrison, Appellant,

No. 20,g2S.
W. H. Morrison, Appellant,
Frank H. Montgomery, Appellee.
Appeal from Kooks County.
REVERSED.
Syllabus. BY the Court West, J.
1. The defendant having purchased
and disposed of the wheat in controversy
from the mortgagor while the instrument
was on record, he may be required by
the mortgagee to answer for the value of
such wheat.
> An offer by the mortgagor to the
plaintiff of the check of the purchaser
made to such mortgagor was not a ten
der of payment of the mortgage debt.
3. Such offer being the only evidence
to show tender, 1t error to charge
that if the jury found an offer of actual
payment the defendant would be entitled
to recover.
4. In such action brought a long time
after the purchase and disposal OF the
wheat by the defendant its value when so
purchased is the proper basis for the
measure of damages.
All the Justices Concurring.
A true copy.
Attest: d. A. VALENTINE,
(SeGL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
No. 81, 036.
J. P Larimore, Appellee,

K
VS..
Thomas Parker, Ernest Petit, c. n. Rich
ardson, Bondsmen, Appellants.
Appeal from Cheyenne County.
MODIFIED.
Syllabus. By the Court. Mason, J.
/. a sheriff returned a writ of attach
ment with a forthcoming bond in which
the space for the statement of the amount
of liability was left blank. The plaintiff
moved for an order permitting the amount
to be inserted. The signers were served
dence was taken showing that the omis-
sion was a mere oversight Held, that the
bondsmen are not entitled to a reversal be-
cause Of the informally of the proceed
ings.
2. The bond above referred to- without
being otherwise reformed, was Interpreted
as making the sigDers liable for the pay
ment Of a personal Judgment against the
defendant Held, that the ruling was err
roneous.
8. The giving of a forthcoming bond
does not have the effect of dissOIving an
attachment =
4 The signers of a forthcoming bond in
attachment, in virtue of which the defend
ant retains possession of the property, are
precluded from questioning the fact that a
levy was made.
8. The sherifrs return to an order of
attachment showed that the property had
been levied upon, and had been returned
to the defendant upon the giving OF a
forthcoming bond, but omitted to describe
the property. Held, that an amendment
should have been allowed for that purpose.
All the Justices concurring.
A true copy.
Attest: ID. A. VALENTINE
tseaI) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
u. A. VALENTINE,
Clerk Supreme Court.
No. 20,715.
Christine Jones, Appellant.

The City of Kingman, Kansas, Appellee
Appeal from Kingman Count.
AFFIRMED.
Syllabus. By the Court. Mason, J.
1. In a personal injury case in which
the negligence of the defendant and con-
tributory negligence of the plaintiff were
in issue, the jury were asked whether
either of the parties had exercised due
care, and answered Yes the plaintiff, -
Held, that this amounts to a special find
ing in favor of the defendant on both
issues.
. The evidence held to support find
ings in favor of the defendant on the
3. Instructions asked regarding this
issue held TO have been properly refused.
4. The requirement that in order TO
preserve for review a ruling sustainin g
an objection to question, the party Of
fering the evidence must at the time in =
form the trial court what was desired TO
be shown by the answer, is not dispensed
with by. the provision of the present code
that rejected evidence to be available on
appeal, must be produced at the hearing
of the motion for a new trial.
3. Evidence admitted over objection
held to have been uon-prejudicial.
G. Instructions given and refused re-
garding contributory negligence held not
to have been erroneous.
T. The failure to instruct that upon the
issue of contributOry negligence the bur
to have been erroneous. but to have been
rendered non -preiudicial by the finding
against the plaintiff on the issue of the
defendants negligence.
s. The fact that the jury return an af-
firmative answer to the question whether
the plaintiffs injury was the result IF an
unavoidable accident and also find that
it could have been avoided by the exer-
else of due care on the part of the plain
tiff, does not necessarily involve a fatal
inconsistency, as the jury may have sup
posed that the word accident was used
to denote the absence of intention rather
than Of negligence.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
LEGAL.

ment is properly overruled, jurisdiction
to render a personal judgment against
the defendant, after a trial on the merits,
is conferred by his filing answer, not
withstanding the right to review the rul-
ing the objection was preserved.
f. The special finding in an action
ages to live stock in shipment held not
to require a Judgment contrary to the
general verdict.
All ;he Justices roncurring.
true copy.
Attest: D. A VALENTINE.
ISeal.1 Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
No. 20,961.
E. L. Miller, Appellant,

No 2O,961.
E. L. Miller, Appellant,
Albert S. Thayer, Appellee
Appeal from Saline County
OPINION DENYING REHEAR1NG-
Syllabus BY the Court. Marshall. ].
l. Notice to an agent, to be notice to
the principal, must be of some matter
connected with the business in which the
agent is engaged for the principal. (Roach
v Karr. Is Kan $50, followed.)
All the Justices concurring-
A true copy
Attest: ID. A. VALENTINE,
(SeaL) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17

No. 21.02S
The Hope Vacuum Cleaner Company, APP
pellant
The Commercial National Bank of indie
pendence, Appellee.
Appeal from Montgomery County.
REVERSED.
syllabus By the Court Burch, j.
1. The plaintiffs agent having in his
possession a check payable to the order
of the plaintiff, Endorsed the plaintiff S
name on the back of the check without
authority, presented the check to the de-
PENDANT bank, and was given credit for it
on his account The defendant collected
the check of the bank on which 1t was
drawn. The agent subsequently exhausted
his deposit with the defendant and did
not account to the plaintiff for the check
Held. the defendant is liable to the plain
tiff for the proceeds of the check.
2. The evidence including the facts
stated, examined and held to be sufficient
in other respects to warrant recovery by
the plaintiff.
All the Justices concurring.
A true copy.
Attest: -. A VALENTINE,
[SeaL Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
d. A. VALENTINE,
Clerk Supreme Court.
No. 21, 526.
The State of Kansas, Appellee,
l.. f. Wilson, Appellant.
Anneal from ShnMnen County.

l.. F. Wilson, Appellant.
Appeal from Shawnee County.
AFFIRMED.
Syllabus. By the Court. Mason, J.
1. Trading stamps supplied by stamp
company to a retail merchant. under an
agreement on his part that he is Ito offer
them to all cash customers when making
purchases and when accepted give to his
said cash customers one of said stamps
for each ten cents represented in such pay
regarded as used lin, with. or for the sale
OF goods, within the meaning of a statute
requiring the payment of a license tax by
that manner.
. In a provision Of such a statute ex-
empting from its operation the furnishing
of stamps "redeemable at their face value.
in cash or merchandise from the general
stock of said merchant at regular retail
prices at the option of the holder thereof ="
the phrase said merchant refers to the
dealer to whom the stamps are furnished,
and not to the concern furnishing them the
stamps being redeemable by that concern
ia cash or out of a special stock of goods
kept and used by it only for that purpose.
3 In the case of business which the
state under its police power has right to
prohibit on the ground that it is injurious
to the public. the legislature may exact
as a requirement to its continuance the
payment of a license tax so large as TO be
practically prohibitory;
lie grounds are not so obviously unreason-
able as to warrant court in holding void
a statute prohibiting their use.
3. statute imposing a license tax upon
the use of trading stamps is not rendered
void, as involving an unreasonable dis
elimination. by the fact that it does not
apply where the stamps are redeemable in
goods from the general stock OF the mer-
chant using them, at the regular retail
price
81 A trading stamp device is not placed
beyond the legislative prohibition by the
fact that the stamps are issued only to
cash customers, and not to those purchas-
ing on credit.
z The validity Of a section of the anti
trading stamp act relating to stamps sold
for use in another county held not to be
involved
s. The provisions of the state constitu-
and the statutory statement of the object
Of a tax do not apply to license taxes.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
d. A. VALENTINE.
Clerk Supreme Court
No. 2e.434,

NO. 2C,4S4.
Joseph A. NJ. Baird, ct al, Appellees,
John S. shaffer, Harry Hickman, Appel
Iants, Mrs Daisy Fish, ct al, Appelleea.
Appeal from Smith County.
AFFIRMED.
The testimony one C Of subscribing %son; it
nesses to a will may be overcome by any
probative facts and circumstances admis-
sible under the ordinary rules of evidence.
=. The facts and circumstances relied
upon to prove that the signature of the
testatrix to contested will was a forgery
examined, and HELD sufficient to sustain
a finding that the signature to the will
was not genuine and HELD sufficient to
impeach and discredit the evidence of the
3. Where the associated language used
by a witness clearly indicated that he only
Intended to give his opinion as to the
genuineness of signature to a will, his
lnadvertent and improper statement Of the
or jury, 1T is not her signature, no sir"
is not prejudicial error:
the genulneness of handwriting Is COM
petent, and the credence and weight to be
given to such evidence is for the determine
s. Where a will is contested as a for
gerry, 1t is competent and admissible Of
not not remote in point of time) to prove
that the testatrfx had repeatedly said that
she had made no will, that she said she
intended to bequeath her property to her
she called scrivener and witnesses short
ly before her death for the purpose Of
making It, saying, II do not want to do
g. Instructions requested by defendants
covering the credence and consideration
to be attached to the evidence OF expert
witnesses examined and HELD to be an in
accurate statement Of law and properly re-
fused, and HELD that the law on this
subject was properly stated in an In
struction given by the court
All the Justices concurring.
A true copy.
Attest: .. A. VALENTINE,
lSeal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
No. 1,617.
The State of Kansas, Plaintiff,

No. q ,617.
The State of Kansas, Plaintiff.
w. S. Langmade. As Judge of the District
Court of Decatur County, Defendant
Original Proceeding in Mandamus.
Writ Denied.
Syllabus By the Court Marshall. +.
1. During the term at which Judgment
has been rendered, the district court has
power to set aside an order denying mo-
ton for a new trial, to set aside the judg-
ment, and to grant a new trial. although
an appeal has been taken to the supreme
court
2. An adjournment of the district court
to meet ION CALI does not adjourn the
court sine die, and does not end the term.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
No 20.SS9.
Fred S. Dye, Appellee.

The Denver & Rio Grande Railroad Com
pany. Appellant.
Appeal from Finney County.
AFFIRMED.
Syllabus. By the Court. Mason, J.
L Where a motion % set asi1e the
service on the defendant is sustained, and
a motion for a rehearing Of the question
is filed. the court by continuing the hear
ing of that motion TO the next term may
preserve jurisdiction to correct error
in its earlier ruling.
= An affidavit for service by ruhlica-
ton. based upon garnishment proceedings,
held sufficient
3 Where an objection to service by
publication in a case begun by garnish-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
d. A. VALENTINE,
Clerk Supreme Court
No. 20,964.
Robert Redd, Appellant,

The Western Coal & Mining Company, APP
pellee-
Appeal from Crawford Comfy.
AFFIRMED.
Syllabus. By the Court. Porter. J.
In an action by the tenant of a dwelling
house to recover from his landlord the
value of household goods burned when the
house was destroyed by fire which it is
alleged resulted from the landlords negli-
gent failure to repair defective condition
Of the premises according to his contract,
Il devolves on the plaintiff to prove that
the fire resulted from the defective condi-
ton and failure to repair, and where no evI-
dence is offered tending to show what
caused the fire, the action must fail.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
LEGAL.

by a building. leases the latter by an
instrument containing the usual cove
nants for quiet enjoyment. no right with
respect to light or air arises by impl1-
cation. and the tenant cannot en1oln the
erection upon the vacant lot Of a building
which, by completely obstructing the win
dOws, on one side of the leased property,
will seriously interfere with the benent
he would otherwise obtain from 1t.
Ali the Justices concurring.
A true copy.
Attest: D. A VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
No. 20,714.
Margaret E. Allen, Appellant,

Jacob H Allen, Appellee.
Appeal from Sumner County.
AFFIRMED.
Syllabus. By the Court. Burch. ].
The proceedings examined, and held
that a Judgment, denying alimony petit
toned for under section 67S of the civil
code on the ground of extreme cruelty,
and gross neglect of duty is sustained by
the findings of fact, which are sustained
by the evidence.
All the - Justices concurring.
A true copy.
Attest: ID. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17
No. PLOTS.
Lila Il. Roger. Appellee.

No. 21.U1S.
Lila Il. Roger Appellee,
vs..
The Perkins Loan and Trust Company. ct
al. Appellants
Appeal from Jewell County.
REVERSED AND REMASDED.
Syllabus BY the Court Porter. j.
' l. borrowing member of a building
and loan association procured through the
association a loan secured by mortgage on
real estate and an assignment of her shares
of stock The note and mortgage were
made payable 70 an individuaI VINO WIS at
the shares of stock were assigned to him.
Held, there was sufficient evidence in this
case to support finding that at the time
the action was commenced the original
payee named in the note and mortgage had
no Interest therein and that IL belonged To
an association which hEd taken over the
assets and business Of the original as
ISOLATION.
2 Where a building and loan association
transfers all its assets to another associa-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17

No. 21,416.
Renna Holmes, Appellee,
vs.
The City of Kansas City, Kansas, APP
pellant
Appeal from Wyandotte County.
Division Number One
AFFIRMED.
syllabus BY the Court Johnston, c. ].
In the matter of giving notice to a city
OF the time and place of an accident, or in
Jury on account of which damages against
the city are asked, the rule of Cook V.
Topeka 10 Kan. 534, 80 Pac. pa, is herein
followed and applied.
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-11-17

No. 21,511.
The State of Kansas, Appellee.
Henry Ciccel, Appellant.
Appeal from Lahette County.
REVERSED
Syllabus. BY the Court West ]
The verdict of conviction being unsup-
ported by the evidence the Judgment was
enormously rendered.
All the Justices concurring.
true copy.
Attest D. A. VALENTINE,
(Seal) Clerk Supreme Court.