davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
D. A. VALENTINE.
Clerk Supreme Court.
No. 81, 1872.
S. f. Helms, Appellee,


The Eastern Kansas Oil Company, Limited
Appellant.
Appeal from Allen County.
AFFIRMED.
Syllabus. By the Court. Johnston, c. J.
l. If the owner of Il refinery permits
OIL refuse and poisonous substances in
large quantities to escape from the re-
finery and flow over and upon the land of
his neighbor, causing material injury to
the neighbor, the use of the refinery will be
deemed to be unreasonable and to consti-
tute Il nuisance.
, The fact that the business of the
refinery is in itself a lawful one and that
the owner of it operates it carefully, will
not exempt him from liability for casting
OIL refuse and poisonous substances on
the land of the plaintiff in such quantities
as to cause him substantial injury.
8 The liability of the defendant in such
a case Is measured by the rules in rela-
ton to a nuisance instead of those govern
ing cases of negligence.
All the Justices concurring.
A true copy.
Attest: d A VALENTINE.
(SeaL1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. 21,110.
p. L. Foley, Appellee,


P. I. Foley, Appellee,
T. B. Ham, A. d. Neale, and Johnson Wade,
as Justice of Peace of the City of Che
topa, Kansas, Appellants.
Appeal from Labette County.
AFFIRMED.
Syllabus. By the Court. Mason, J.
1. While the county attorney is not re-
animation in a felony case unless re-
quested to do so by the magistrate. if he
does appear he is entitled to have full
charge of the prosecution, and the case
should be dismissed if he SO directs.
>. Where a justice of the peace sitting
an examining magistrate refuses to dis
miss Il criminal prosecution on the motion
of the county attorney, the district court
by an order in the nature OF a writ of
prohibition may compel such action.
B. Where county attorney asks the
dismissal of criminal case pending before
justice of the peace. and his request is
of the Justice to proceed therein is neces-
sary to give basis for asking relief by
prohibition.
4. A transcript of the docket of a JUS
tice of the peace which recites that after
preliminary examination defendant
was required to give bail for his appear
ance in the district court to answer the
charge against him is sufficient together
anti to confer jurisdiction on the district
court. although it omits recital that it
was found that an offense had been COM
mitted and that there was probable cause
to believe the defendant guilty
3. Injunction against the maintenance of
veNatious and unwarranted criminal prose-
cutions may be allowed against individuals
even where no property rights are threat
ened.
All the justices concurring.
Attest: D. A. VALENTINE.
(SeaL) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
d. A. VALENTINE,
Clerk Supreme Court.
No. n. Isl.
q. II. Miles, ct al, Plaintiffs

No. 21 .151
G. II. Miles, ct al, Plaintiffs,
vs..
E. C. Undenstock, ct al. Constituting the
Board of Education of Usage City, De-
PENDANTS.
Original Proceeding in Mandamus.
Motion 20 Quash Allowed, and Writ De-
MED.
Syllabus. By the Court Marshall J.
A writ of mandamus will not issue to
compel the board of education of a city
of the second class to employ an addition
al teacher in any particular school in the
city.
Ali the Justices concurring.
a true copy.
Attest: u. A VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15

No. PILOT
Emerson Birmingham Implement r.
pellant. - NJ.
VS..
A l. Willhite. ct al ADDeIIae.
Appeal from Ford COUNTY
AFFIRMED.
Syllabus BY the Court ra.r
1. Parts OF an answer 70 a natMsssson, =.
an action in rep1eyin examined ana N n
prejudice disclosed in oxerruling n H. no
rpr thereto uemur-
Where possession Of personal -
srty Is demanded in an action in renpieytPe
session ia claimed by the mortTapes pos
tecntinued on Next Page) s--,-s-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. 21.19G
The State Of Kansas, Appellee,

VS..
Ed King, Appellant.
Appeal from Cherokee County.
AFFIRMED.
Syllabus. By the Court Marshall. 7
1. The credibility of Il witness may be
impeached on cross examination by show
ing that he has previously made statements
inconsistent with or contradictory to his
evidence given on the trial; but it is not
reversible error to exclude previous
PLANTATION of prior contradictory state
Inents. when that explanation is not con-
Trajectory to or inconsistent with his evil
dence on the trial
=. Where the evidence tends to show
that a robbery was committed in store
by four persons who came in an autOmo-
bile, two of whom remained in the AUTO
mobile in front of the store. While the other
two committed the robbery, evidence IN Y
be introduced TO show that those who af
existing at the time Of the robbery could
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
LEGAL
Published in The Topeka State Journal,
Decembe- Is, 1911
SUPREME COURT SYLLABI
No. p. 15G.
james NJ. Walmsley, Appellee,


The Rural Telephone Association of Del
phos. Appellant
Appeal from Ottawa County.
AFFIRMED.
Syllabus BY the Court. Dawson, J.
l. Negligence in the maintenance of
telephone wire across a public highway is
that the wire hung low as to interfere
with a customary use Of the highway:
. Negligence, to be the proNsmate
cnuse Of an injury, must be such that
person Of ordinary caution and prudence
would likely result therefrom, not that the
specific injury would result; tRailway
Co. v. Parry, 81 Kan. 515, Syl. e, % Pac.
1860
:. When a plaintiff has proved that he
sustained injuries through the dangerous
across public highway, the burden passes
to the defendant to show that the danger
ous situation Of the wire was not due &c
the act of the defendant and had not eX-
listed for such length of time as to charge
the defendant telephone company with
notice Of its defective condition
). The pleadings, the evidence, the in
struetions given and refused, and the
Judgment in an action to recover dam,
ages for personal injuries sustained
through the negligent maintenance of
telephone wire across public highway
examined, and no prejudiciai error dis
All the Justices concurring.
A true copy.
Attest D. A. VALENTINE,
(Seal)- Clerk Supreme Court.
No. 81 15S
The Hamilton Collinsone Hardware Com
pany, Appellant,
The Arkansas City Oil & Gas Company ct
nj, dan w. Brown Receiver. Etc, APP
pellant,) G. w. Mounts, lucrpeader, APP
pellee-
Appeal from Cowley County.
AFFIRMED.
syllabus. By the Court. Johnston, G. };
I. An oil and gas company obtained
leases. purchased n rig, tools and APP
plinnces and began the drilling of well
a clause that upon failure of the lessee
10 drill or complete well in a certain
time or make certain payments the lessor
could declare Il forfeiture after ten days
notice. Before the well was completed the
lessee became insOlvent. allowed its leases
e. lapse. eft its rig. tools and appliances
ON the farm of the lessor and abandoned
tho enterprise. Persons who performed
labor for the company obtained judgments
against it aud procured the service or
whose iand the rig. tools ana appliances
of the company were left. In eontro-
Versy between creditors it is held that al
though the lessor had not declared a fer
as in possession and control Of the prop
erty left on his farm, for the purpose OF
punishment, and that he a proper
Earnishee in the actions brought by the
lahorers-
lapse ana the lessee had abandoned the
ENTERPRISE and is not claiming any right I'M
der the lease. formal forfeiture by the
lessor after giving notice was not necessary
10 his liability garnishee in the actions
brought by creditors of the company.
All the Justices concurring
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. 21,O9j.
W. NJ. Forbes, Appellee,

No. 21,O9J.
w. NJ. Forbes, Appellee,
VS.
John C. Madden. Appellant.
Appeal from Shawnee County,
division No. -
Appeal Dismissed.
Syllabus. By the Court Porter. J.
On a former appeal the judgment in this
case was affirmed (Forbes V. Madden, 9S
Kan. $50, 1855 Pac. 500, and in due time
the man late was sent down and spread on
the record. Thereafter defendant applied
to the district court for an injunction to
restrain the enforcement of the mandate
and to have the district court pass upon
the decision of this court and determine
whether 1t was legally rendered. The dis
trict court held that it is without power
to restrain and enjoin judgments and or
ders of the supreme court. The appeal
from this ruling being without semblance
of merit, It is dismissed at the costs of de-
PENDANT
All the justices concurring.
true copy.
Attest: d. A. VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15

No. 21,1OG
st. Paul Fire & Marine Insurance Ca
pany, Appellant
VS..
Thomas A bigger, Appellee.
Appeal from Wyandotte County
First Division
REVERSED
Syllabus. BY the Court Marshoti =
When instructed so to do IL Is IRE A. =.
of an insurance agent to cancel n neIsy
Of insurance issued by him and r. baP ~
to cancel the policy. he Is liable 10 ~
principal for the damage sustafned ~ ~ ~
principal, unless the agent can show .o ne
valid reason for his failure to follow his
All the Justices concurring.
A true copy
Attest; ID. A. VALENTINE
tseaL) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
d. A. VALENTINE,
Clerk Supreme Court.
No. 21,132.
&. b. Bruce. Appellee.

E. Il. Hayes, doing business as The Hayes
Produce Company, Appellant.
Appeal from Shawnee County, Second
Division,
AFFIRMED.
Syllabus. BY the Court Marshall, J.
I. Under the facts disclosed by the plain
tiff's evidence. and stated in the opinion
it was not error for the court to overrule
a demurrer to that evidence.
>. As against Il defendant there is no
error in giving an instruction which prop
erly states his defense, although there is
not sufficient evidence to Justify the in
struction.
All the Justices concurring
A true copy.
Attest u. A. VALENTINE,
tSeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No p ,06S.
William Storm, ct al, Appellees,

NO ZlUOS.
William Storm, ct al, AppelIees
The Leavenworth Light. Heat g. Power
Company. Appellant.
Appeal from Leavenworth County
AFFIRMED.
Syllabus; By the Court. Mason, J.
1. Following Snyder v. Light Co, 9s
Kan 157. 157 Pae. 4f2, 1t is held that
where company transmits high voltage
electricity along the streets of n city by
wires on which insulation is not maintain
ed, the question whether it ought to anticf-
able of serving as conductor. might
come in contact with its lines, as to
endanger persons on the street sidewalk
is a question of fact to be determined by
the court or jury trying the case in which
it arises.
= An instruction which taken alone
might seem to indicate that as matter of
law the company was bound to such antici-
patton held not to have been prejudicial be-
cause of other explicit instructions covering
the matter.
3 A finding of fact held to have been
supported by the evidence.
4. finding to the effect that a loose
wire had been in contact with the wires
of an electric light company long that
it ought to have discovered IL before the
occurrence of an accident. held not to
have been supported by the evidence, but
to have been non pre- judicial.
). finding thar the company's wires
would not have injured any one using the
streets in an ordinary way. or in way
reasonably TO have been foreseen. held not
to mean that the throwing of loose wire
across them could not have been antici-
pated by the exercise of ordinary caution.
All the Justices concurring.
A true copy
Attest: d. A. VALENTINE.
(Seal-) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
LEGAL
No. 21,6O2
The State of Kansas eX rel, Ross Nc
Cormick. Plaintiff.


Judgment Removing Defendant
Syllabus. By the Court. Marshall. J.
1. A petition which alleges facts suffi-
cient to show that, under section 1910 of
the General Statutes of 1915, it was the
legal duty of the clerk Of the city court of
Wichita to pay iuto the county treasury
certain costs that had been collected by
him and which alleges Il willful failure to
perform that duty, states a cause of action
under section 1908 of the General Statutes
of 1915.
?. A misunderstanding of the operation
of section 3310 of the General Statutes of
1915 and of chapter 135 of the Laws of
1917, when neither statute is complied
with, is not sufficient excuse, on the
part of the clerk of the city court of Wich-
tia, for his failure to pay to the county
treasurer costs that should have been so
paid the first Monday of August, 1917
3. A judgment rendered in favor of an
officer in an action prosecuted under
section 1908 of the General Statutes of
1915 is bar to any further prosecution
under that statute to all acts that were
included in the petition at the time it was
filed, but it is not bar to a prosecution
for acts which occurred after the petition
filed, which were not included there
in, and which We're not passed. on in the
action.
All the justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supren Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No 21.03s.
Harbor business Blocks Company, Appel
liant,


Harbor business Blocks Company. Appel
liant,
VS..
Elizabeth Gregory, Appellee.
Appeal from Jewell County.
AFFIRMED.
Syllabus. by the Court Dawson J.
1. Un.ler section $50 Of the Civil Code
which authorizes the use of nffidavits as
evidence under certain limitations and pro-
viding that copies of such affidavits must
be served upon the adverse party or his
attorney at least ten days before the trial.
service Of copies of affidayits is sufficient
ly mace when they delivered to the adj
verse utigant personally at his principal
place Of business even although that may
be outside the state.
. When deeds to real estate are de-
posted in escrow to be delivered to the
grantee upon completion of payment
therefor. the title to the property dos not
pass unless full payment is made. and
where the grantee has good defense to an
action for the balance due on the purchase
price based on the fraud and misrepreseI-
tation Of the grantor and rescinds the con-
tract Of purchase. no formal offer to re-
convey the property is required.
All the Justices coucurring.
A true copy
Attest: ID. A VALENTINE.
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. u 119.
Ben A. Wood. ct al, Appellants,

No lib.
Ben A. Wood, ct al, Appellants,
vs..
Syracuse School District No. l. Hamilton
County, Kansas. and Henry Q. HoIdren,
Fred G. Sanders, Chas. A. Calkins, APP
pellees.
Appeal from Hamilton County.
REVERSED.
Syllabus. BY the Court. West J.
A number of land owners appealed from
an award of damages on a condemnation
matter, all joining in one bond which
recited the appointment of the appraisers,
their report and the desire to appeal and
closed with these words:
THAT we hereby bind ourselves to pay
all cash and expense of said appeal, should
we be adjudged to them.
Following Il motion to dismiss for want
of sufficient bonds the appealing parties
requested leave to file proper bonds which
request was refused. Held, that such re-
fusal error.
All the Justices concurring.
A true copy.
Attest; ID. A. VALENTINE,
(SeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
d. A. VALENTINE,
Clerk Supreme Court.

No. 81 .4T2
Remigi Ricardo. f. Il. Wheeler and C. Az
Mcneil, Appellees.
VS..
Central Coal e. Coke Company, a Corpora
ton, ct al. Cd. G. Smith. Appellant
Appeal from Cherokee County.
AFFIRMED.
Syllabus. By the Court. Mason, J.
1. An application for the distribution of
fund against which several attorneys
liens are claimed is a motion, and the code
permits the use Of affidavits at the hear
ing thereof
,. An attorney whose claim of lien is de-
MED at such a hearing because the court
is convinced from his own testimony that
he has performed services emitting him
thereto mas no standing to complain of the
refusal to allow him to crOss-eXamine the
Uakers of affidavits used in behalf of
other claimants.
All the Justices concurring
true copy.
Att,st: D. A VALENTINE.
ISeaLi Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. 21.126.
Ignace Tersina, Appellee,

No. 81 .12G
Ignace Tersina, Appellee,
The Liverpool and London and Globe In
surance Company, Limited, and H. r.
Brooks. let all Appellants
Appeal from Cherokee County.
AFFIRMED.
Syllabus By the Court Johnston, c. J.
The court refused to order judgment
for defendants upon the evidence or upon
the special findings of the jury, but grant
verdict returned by the jury was not sup
ported by the evidence and because the
special findings were inconsistent with
each other and With the general verdict.
Held, not error.
All the Justices concurring.
A true copy.
Attest: d. A. VALEN TINE,
(SeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15
No. 20,649.
T. +. Garner,

NO. 2U,O4J.a
T. +. Garner,
The Dodge City Wholesale Grocery Com
pany. Appellant.
Appeal from Ford County.
AFFIRMED.
Syllabus. BY the Court. Mason, J
l. No abuse of discretion is shown in
refusing the application of corporation
defendant for a continuance in order to
procure the attendance of its president, who
had absented himself with knowledge that
the case had been set for trial.
. Where d written lease provides that
repairs are to be made by the tenant. the
landlords subsequent promise to make
them is not enforceable, unless supported
by new consideration.
3. The landlord is not under any i'm
piled obligation to make repairs.
Ali the Justices concurring.
true copy.
Attest: u. A VALENTINE.
tSeaLl Clerk Supreme Court
No 20s41
Geo. A. Grisier, Appellee,
The Farmers State Bank of Be1pre; Kan
sas, ct al. Appellants.
Appeal from Stafford County.
AFFIRMED.
Syllabus. BY the Court. Porter. ]
Failure of consideration and fraudulent
purpose in the giving Of note and chattel
mortgage will not De presumed because of
the relationship of the parties
All the Justices concurring.
A true copy
Attest: d. A VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15

No. IL 2J
The Kelley & Lysle Milling Company, APP
pellee.
L. Schroeder, doing business as the L.
Schneider Grain Company, Appellant.
Appeal from Wyandotte County.
division No. -
DISMISSED.
Syllabus. BY the Court. Bureh. J.
1. Tn Ter section 800 of the civil CODE
the report of referee. determining the
whole issue by findings of fact and con-
illusions of law separately stated, stands as
the decision of the court, and judgment
may by entered thereon in the same man
ner if the action had been tried by the
court.
. The word decision in section BOG
of the civil code, providing that the motion
for a new trial must be filed within three
days after the dict or decision is rem
dered," includes the decision constituted
by the report of referee on the whole
issue, stating facts found and conclusions
of law separately.
Ali the Justices concurring.
A true copy.
Attest: d. A VALENTINE,
(SeaI) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15

The Atchison, Topeke & Santa Fe Railway
Company, and The Wichita Union Ter
minal Hallway Company, Appellants.
t. Ii. Griffith, Appellant
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15

D. A. VALENTINE.
Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15

ID. A VALENTINE.
Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15

City of Wichita, Appellee.
Appeal from Sedgwick County.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15

d. a. VALENTINE,
Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-12-15

NO. LIDS
The Hamilton Collinsons Hardware Com
pany, Appellant,
VS..
The Arkansas City OIL & Gas Company ct
al. dan w Brown Beceive~. Etc, APP
peilant,) G. w. Mounts, Iutcrpleader, APP
Arizona republican., 1917-04-13

trade" MT. Colby said ''The grand jury as the result of it's independent investigation has in effect reached the same conclusion and has indicted the men whom it considers as responsible for these conditions.
 "The prices charged by members of the association are greatly in ex- cess of prices which independent pro ducers, even under war conditions are content to receive There has been a relatively slight advance ir the cost of materials, but nothing comparable to the advance in prices which has been made through the concerted action of the members of this combination and under restricted competitive conditions brought about by the association
 The indictment states the inquiry covered the period since December. 1914. The total daily output of news print paper, chiefly used by news papers, is put at $500 tons in Canada and in the United States. with T value of s250,000. Of this amount, it is alleged. $500 tons were controlled by 45 specified companies, whose trade the defendants are accused Of engaging in a conspiracy to restrain
 The association is described in the
Arizona republican., 1917-04-13

along the shores of America and Americans were told they must not cross and America said, What is this" America said: The place for that line is not the Atlantic but on the Rhine, and we mean to roll it up And they have started.
 There are two great facts which olinch the argument that this is a great struggle for freedom. The first is the fact that America has come in. She would not have come in otherwise The second is the Russian revolution
 'I have been asking myself the ques ton, why did Germany, deliberately,
 n the third year of the war. provoke America to this declaration and to this action? The answer has been afforded by General von Hindenburg in a re- markable interview which appeared in the press.
 He depended really upon one of two things, namely. that the submarine campaign would have destroyed inter- national shipping to such an extent that England would have been put out of business before America was ready. According to his computation America could not be ready for 12 months. He does not know America. He is confi- dent in the alternative that when America is ready at the end of F months with her army she will have no ships to transport an army to the field of battle.
 "In General von Hindenburg's words, America carries no weight. He means that she has no ships to carry weight. It is not wise always to assume that even the German general staff have made calculations that they have no right to make, and therefore, it be- hooves the whole of the allies, Great Britain and America notably, to see that that reckoning of General von Hindenburg is false reckoning.
 "The road to victory, the guarantee of victory, the absolute assurance of victory has to be found in one word ships and a second word-ships- and third word-ships. With that keenness which characterizes your na- tion, I see that they fully realize that and I see today that they have already made arrangements to build ships by the thousands one thousand 5000 tonners for the Atlantic. I believe that the Germans and their military ad- visers are already beginning to realize that this, another of their miscalcula- tlons, Is going to lead them to disaster and ruin.
 You will pardon me for just en- phaslzing that we are a slow people slow and blundering, but we get there
 You get there sooner. That is why am glad to see you in We have been in this business for three years. We have made, as we generally do, every blunder. In consequence we have got through every blunder. Now we are right out on the cOurSe
 May 1 respectfully suggest that it is worth good deal to study our blum ders so as to begin where we are now not where we were three years ago. America has helped us even to win