davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
No. 20,16S.
George SEEMING, Appellant,

NO 2U,lOS.
George SEEMING, Appellant,
VS..
The Arkansas Valley Interurban Railway
Company, Appellee.
Appeal from Sedgwick County.
division No. l.
AFFIRMED.
Syllabus. By the Court. Mason, J.
In an action against an interurban cleo
tric railway company the plaintiffs
t tended to how these
ton about dusk with friends who
were leaving After they had boarded
the car and before 1t started he went DOWN
into the space between it and the station
platform to look for coin his little daugh-
ter had dropped. The platform was about
two feet above the ground and five feet
and discharged by a gang plank laid to
the rear steps. As the defendant was
STOPPING over, facing away from the car.
it started without any signal being given,
and as the front wheels turned in the 9TH
er direction on a curve the rear step pro-
truded and struck him. Held,
L. In the aspect most favorable to the
plaintiff he was but a licensee while in the
place between the platform and the track,
and the company owed him duty to
give him warning of the starting of the
car.
9. If such duty had been owing to
him the omission to perform it would have
constituted mere negligence and not
wanton misconduct.
3. In that case his own failure to use
reasonable care for his safety would bar a
recovery.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
No. 20,693.
Charles Ferry Ross, Appellant,

Charles Ferry Ross, Appellant,
vs..
Wellington Lodge No. 1873, Independent
Order of Odd Fellows, Appellee.
Appeal from Sumner County.
AFFIRMED.
Syllabus. BY the Court. Marshall, J.
1. 1t is not error for the trial court to
hold that the burden Of proof is on the
plaintiff in an action on an unverified ac
count, where the petition is met by an an
swer containing a general denial and an
allegation of settlement.
2. A judgment based on a general find
ing will not be disturbed where there is
evidence to prove the facts necessary to
support the judgment
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(SeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
No. 20,316.
Fremont Rodgers, Appellant,

Fremont Rodgers, Appellant,
o. X. SIavens, Appellee
Appeal from Reno County
AFFIRMED.
Syllabus. By the Court Dawson
/ An account stated Is incorrect when Il
fails to state all the items OF credit to
which the debtor is entitled,
?. 1t is proper to deny under oath the
correctness Of account stated. although
the items Of debts and credits therein ssf
forth are not disputed. where the defen
dants contention is that the account stated
he is entitled
3. Between the original parties to n
promissory note. where no rights of holder
In due course are involved. the ordinarv
principles of the law Of contracts control
4. Where no rights of holders in An.
course or OF other innocent parties withoES
Continued on Next Pass
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
No. 21.236.
The State of Kansas. appellee,
Earl Harris, appellant
Appeal from Chase county.
FIRMED.


Earl Harris, appellant
Appeal from Chase county.
AFFIRMED.
Syllabus. BY the Court West. j.
l. Under charge of statutory rape "a
conviction for an attempt to commit the
offt nse-nOt an assault with intent to tom-
mit-can h. had although no specific acts
towards the commission of the full offense
are set out.
girl twelve years old. corroborateG
as to certain parts of her story. testified
Of all the evidence conviction of at
tempt to commit the offense not error
>. Medical evidence touching the pos
sibility of self inflicted or accidental in
jury which If expert at all was merely ar
gumentatiyc was properly rejected. Like
wise evidence touching the possibility Of
Distinguishing between certain kinds of
blood stain-the stained clothing involv-
ed herein not having been preserved or
described.
T. Evidence that the defendants wife
aud the mother Of the injured girl FIRE
quented certain Mexican quarters and re-
celved visits from the men there. and tha'
the wife Of the defendant ran away with a
Mexican offered to show Z conspiracy
between the two women to get rid OF the
defendant. Held, that such evidence was
properly rejected because involving q col
lateral issue and because it would tend
only 10 affect the credibility of the wife
who not n witness and the other
woman whose Impeachment not at
tempted.
All the Justices concurIing.
A true copy.
Attest: u. A. VALENTINE.
(Seal) Clerk supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
LEGAL.
SUPREME COURT SYLLABI

h-" - ~ Out VI LLItOI
No 2O,93I.
The German American State Bank
appellee,
chester Woodward, appellant
Appeal from Shawnee county,
division No -
MODIFIED
syllabus. By the Court Marshall !
L One of number of parties who each
contracts To indemnify bank against loss
TO the amount OF a certain share of that
part OF an obligation left after the appli-
cation of tie proceeds of a SAFE of certain
property, or to deposit Il sufficient sum
70 assure the payment of that share OF
the obligation, Is not discharged by reason
OF the fact that the amount deposited in
good faith by another of the cOntrat tors
finally turns out to be insufficient to pay
his share.
2. A baseball association was indebted
TO bank. Directors of the association
loss, each to the amount of seventh
OF the Indebtedness remaining after the
appicatiOn of the proceeds derived from
the sale II the assets of the association.
The sale contemplated was a private sale
All the assets had been .nortsaged TO the
bank. They were sold 20 the bank at chat
tel mortgage sale for $1,000. About five
weeks later, the bank sold the assets for
$1,000. Held, that, in an action against
the fndemnitOrs. the $500 should be cred
tied on the debt Of the association to the
bank, and judgment should be rendered
against the indemnitors for the remain
der of the debt, in accordance with the
terms Of their contracts.
All the justices coucurring.
true copy.
Attest: ID. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16

No 20,523.
In Re Justus B. Linderholm, (Mrs.) Agnes
Ekblad, Appellee,
Justus b. LinderhoIm, Appellant,
Proceeding in Mandamus in
Appeal from Mcpherson County,
Writ Denied.
Syllabus. By the Court. Marshall, J..
Where, after a dispute between counsel
as to what a journal entry of Judgment
on a motion and demurrer, should con-
tain, the trial Judge signs a journal entry
reciting the judgment Of the court, writ
of mandamus will not issue to compel the
correction of the journal entry SO as to
make it recite the evidence or other show
ing on which the Judgment was based.
All the Justices concurrfng.
A true copy.
Attest: d. A VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
d. A. VALENTINE,
Clerk Supreme Court.

No. 20,691.
J. w. Metz, Appellant
VS..
J, H Clay, Chester Clay and S. E. Clay,
Appellees.
Appeal from Clark County.
REVERSED.
Syllabus. By the Court. West, j.
1. The evidence examined and held sur
ficient to take the case to the jury.
.. The bond executed by the defendant
to stay out of the lumber business for
fixed time within certain territory held to
have been a part of the transaction cover
ing the sale of his lumber yard to the
plaintiff and to have tested on the same
consideration.
9. Following Evans vs.. Moseley, "a Kan N
322 ia Pac. 314, and Kuter VS.. Bank, 30
Kan 4S5 152 Pac. &C., the bond sued on
herein is construed and held to be one for
penalty and not for 1iquidated damages.
T. Although the plaintiff transferred the
lumber yard in question to corporation
lin which he was largely interested Off
cially and a stockholder), he is not
shown to have assigned the bond or to
have disposed of another yard affected by
the terms thereof. Held, that under the
pleadings and evidence the claim that he
is without right to maintain the action
cannot be sustained.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
(Seal) Clerk supreme court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
No. 2OT40
The First National Bank of Eureka. Ap-
DellaQt

The First National Bank of Eureka APP
pellant,
VS..
Mamie Wilson and Mamie E. Wilson, Ap-
pellees.
Appeal from Sedgwick County,
division No. II
AFFIRMED.
Syllabus. By the Court. Johnston, c. J.
1. Where national bank undertakes
through its officers to assist customer in
the financial transaction of exchanging her
land for certain lien notes and other prop
erty and agrees to hold the deed conveying
the land of the customer until the lien
notes should be properly endorsed by the
other party guaranteeing their payment.
and the officers of the bank after receiving
compensation for their services accept the
notes without the proper endorsement and
then deliver the customers deed to the
land, in violation of their agreement by
reason of which the customer suffers loss
the bank may not, when sued for the loss
so occasioned, and after enjoying the bene-
fits of the transaction. set up the defense
that the agreement made and the bust
ness done was in excess of its charter
powers nor escape liability upon the ground
that the acts of its officers were ultra
wires.
2. Under the evidence it is held that the
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16

No. 2O,770.
The City of LeavenwOrth, municipal cor
poration, Appellee
The Green River Asphalt Co., a corpora
ton, and United States Fidelity and
Guaranty Co., corporation, Appellants.
Appeal from Leavenworth County.
REVERSED.
Syllabus. By the Court. Porter. J.
Where the judge of the district court
has been of counsel in the case subject
matter thereof he is disqualified to sit,
and it is error to refuse to grant a change
of venue as provided in Section 81 of the
Code (Sec. 6947, Gen. Sta. 1851
All the Justices concurring.
true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
d. A. VALENTINE,
Clerk Supreme Court.
No. 20,557.
Marion A. Tatlow, Appellee,

No. 2o,557.
Marion A. Tatiow, Appellee,
w. E. Bacon, ct all (Bert Rucker, APP
Appeal from sn"wnee County.
AFFIRMED.
Syllabus. By the Court; Johnston, c. J.
1. The statutory provision that an exc
cution may issue against the person of a
debtor for certain fraudulent acts is not
violative of section 16 of the bill of rights
which prohibits Imprisonment for debt eX
cept in cases of fraud, nor of the limita-
ton against cruel and unusual punishment.
?. The act does not conflict with the
fourteenth amendment Of the federal con-
3. As the statute provides that before
issuing an execution the court or judge
must be satisfied from evidence produced
that the statutory grounds upon which 1t
may issue exist it is obvious that the legis,
lature contem plated that hearing should
be had and that notice of the hearing
should be given to the debtor
4. The rule applied that statutory pro-
vision for such notice and hearing need
not be made in the statute in express words
but may be implied.
3. In such proceeding jury trial may
not be demanded as a matter of right.
6. Where a statutory provision refers to
section Of the statute by the wrong mum
another section was the one intended by
the legislature the wrong number will be
deemed to be substituted.
T. In an affidavit made to obtain the
issuance or an execution against the per-
son mere conclusions are not sufficient.
The facts upon which the charges of fraud
are based should be specifically stated.
s. Where the charges of fraud against
the debtor were properly put in issue and
determined in the original case the facts
elusive between the parties and are not
open to relitigation in the subsequent pro-
ceeding to obtain an execution
0. The proceeding herein is purely stat
utory and when the creditor alleges and
shows to the satisfaction of a court or
Judge that the debtor has committed the
acts of fraud which under the statute
constitute grounds for the issuance Of an
execution he is entitled to his remedy al
though other remedies may be available.
TO- The evidence examined and held to
be sufficient to sustain the findings of the
trial court.
All the Justices concurring.
A true copy. -
Attest: d. A. VALENTINE
tSeal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16

n. A. VALENTINE,
Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
No. 20,10S.
The State Of Kansas. Appellee,

No. 20,7Os.
The State of Kansas Appellee,
E. C. Burton, Appellant.
Appeal from Sedgwick County.
division No. y
y AFFIRMED.
Syllabus. By the Court Burch, J.
l. In the prosecution of a mortgagor
under section 6513 General Statutes of
1915, for selling property covered by chat
tel mortgage without written consent of
the mortgage, proof of oral consent of
the mortgagee to the sale is not sufficient
to defeat the action. but such proof may
be admitted. as bearing upon the ques-
ton whether or not the sale made for
the purpose of defrauding the MORTGAGE.
. Proof that the bill of sale by which
the mortgagor disposed of the property re-
cited that it was sold subject to the mort
gage is not sufficient to defeat the action.
g. Assignments of error involving con-
sideration of the sufficieDcy of evidence ex-
amined, and held to be unsubstantial
All the Justices concurring.
A true copy
Attest: u. A VALENTINE.
fSeal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
No. 20,915.
Clarence II. Rodarmel, Appellee,

Clarence II. Rodarmel, Appellee
The Carey Salt Company. Appellant
Appeal from Reno County.
AFFIRMED.
Syllabus. BY theaCourt. Johnston, c. J..
Under section 1922 of the General Stat
utes Of 1915, any release OF liability by a
workman or any agreement for or award
Of compensation to a workman made under
the act is void ms against the workman I'M
less it is filed by the employer in the Of
flee of the clerk of the district court of
the county where the accident occurred
within sixty days after it is made.
All the justices concurring.
A true copy.
Attest: u. A. VALENTINE.
(SeaLl Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
d. A. VALENTINE,
Clerk Supreme Court.

No. 20,654.
Smith Brothers and Cooper, Appellees,
VS..
Robert Hanson, Appellant.
Appeal from Cloud County
REVERSED.
Syllabus. Blythe Court. West, j.
1. In view of the issues involved and
attitude of the parties it was error to ex-
clude proffered testimony as to the cor
rectness of the defendants method of meas
uring the hay involved herein.
2. Under the circumstances of this case
the issue of fraud is practically negligible
the vital question being the amount of
hay actually purchased.
3. The issuance of a subpoena for GER
tain jurors not called as witnesses al
though no substantial prejudice is shown
in this instance-not approved.
All the Justices concurring.
A true copy.
Attest: ID. A. VALENTINE,
(SeaL) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16

No. 20,747.
The Aultman & Taylor Machinery Com
pany, Appellee,
VS..
e. Schierkolk, Appellant.
Appeal from Washington County.
AFFIRMED.
Syllabus. By the Court Burch, J.
The evidence considered, and held. the de-
tense of rescission on the ground of fraud
was not established, because of failure to
return or offer to return the property
sought to be replevined, to the plaintiff
at the place of sale. Held further, the de-
tense that the debt for which the property
was claimed security had been paid
was not sustained.
All the Justices concurring.
A true copy.
Attest: d. A VALENTINE,
tSeal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
No. 2O.T11.

No. 20,111
Fidelity and Deposit Company of Mary
land, a Corporation, Appellee,
The City of Stafford and the Farmers Ma
tional Bank of Stafford, Kansas, Appel
lants-
Appeal from Stafford County.
REVERSED.
Syllabus. BY the Court Mason, J.
1. The contract price of a municipal
improvement having proved insufficient to
meet all the claims FOR labor and ma
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
D. A. VALENTINE,
Clerk Supreme Court

No 20,902.
J. C. Collins, Appellant,
john Morris. Appellee.
Appeal from Miami County.
REVERSED AND REMANDED.
Syllabus. By the Court. Porter. ].
In an action under the statute (Sec
1862. Gen. Stat. 1870 to recover treble
damages for the destruction of several
shade trees of plaintiff the defendant ad
mitted that because he was angry at the
plaintiff he set fire to one of the trees,
which all the evidence showed to be of
some value Held that a verdict in de-
PENDANTS favor should have been set aside
and a new trial ordered. collins vs.
Morris, 81 Kan. 264, 1856 Pac. 81
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
No. 20,923.
.Auton Stramcl, Plaintiff,

:.
A. Il. Hawes. Defendant and Appellant.
Of. pumont Smith, Appellee.)
Appeal from Edwards county.
AFFIRMED.
Syllabus. by the Court Burch, J
The evidence examined. and found to
sustain the judgment
All the Justices concurring.
A true copy.
Attest: u. 4. VALENTINE.
(SeaI) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
No. p, 223
The State OF Kansas, Appellee,

VS..
Felix Orth, Appellant.
Appeal from Sedgwick County,
division No. p
AFFIRMED.
Syllabus. BY the Court. Porter, J.
In a prosecution for statutory rape the
evidence and instructions are examined
and it is held that the evidence is suffi-
cient to sus tain the conviction, and that
the instructions are not subject to the
general criticisms leveled against them.
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, 1917-06-16
d. A. VALENTINE.
Clerk Supreme Court.


In re The Estate of Myrtle A. Bennett,
Insane. F. s. Bennett, Guardian and Pc
titioner Appellant.
Mabel c. Arrowsmith and Webster s. Ben
nett, Appellees.
Appeal from Allen County.
REVERSED.
Syllabus. By the Court Burch. ].
The probate court has authority to ap
prove a voluntary partition of real estate
which is just and equal. agreed upon by
the guardian OF an insane person and his
wards cotenants.
All the justices concurring.
A true copy.
Attest ID. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
No. 21,249.
The State of Kansas, Appellee.

No. 1,e49.
The State of Kansas, Appellee.
Frank King Appellant
Appeal from Sedgwick County,
Division No. 1,
AFFIRMED.
Syllabus. By the Court Porter, J.,
1. On the voir dire examination of
jurors in a prosecution for murder coun-
sci for defendant asked juror whether, in
case the evidence showed that about six
months before the crime was committed
the defendant was intoxicated and made
threat against the deceased. that would be
evidence in your mind that he was guilty
of the crime charged against himf Held,
that objection to the question was prop
. Besides giving the usual instruction
that the jury might properly consider the
interest of any witness in the result of
the trial as affecting his credibility. the
court also instructed:
defendant is a competent witness in this
case. and you must consider his testimony
in arriving at your verdict; but; in deter
mining what weight. and credibility you
will give to his testimony in making uD
your verdict, you may take into con
sideration, as affecting his credibility, his
interest in the result of the case and thot
he is the accused party on the trial, testi-
Hsid IN that hs wSe the giving
such an instruction under such circum
stances is not approved. it can not be re
the jury to consider the defendants in
terest in the result. as well as their duty to
consider it in determining the credit to
be given to his testimony.
3 The instructions relating to the de-
Tense of an alibi examined and held suf-
ficient
4. III prosecution for murder defendant
offered evidence tending to show that be-
ca of the crippled condition of his right
hand it was a physical impossibility for
him to hold and discharge an automatic
pistol in the manner charged in the in
formation and testified to by witnesses
for the state. No special instruction sub
uniting this defense was asked. Held,
that it was not error to fail to give an in
structiOn directing the jury's attention
specially thereto.
). On the facts stated in the opinion
there was no error in oyerruling the mo-
ton for new trial
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE.
iSeal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
D. A. VALENTINE.
Clerk Supreme Court.

No. 20930.
Felix Lagneau, Appellant,
Arthur Bource ct al, Appellees.
Appeal from Cherokee County
AFFIRMED
Syllabus. BY the Court West, j.
Rules followed that findings of fact sup
ported by the evidence must stand, and that
usually new trials will not be granted for
newly discovered evidence which is at most
only impeaching.
All the Justices concurring.
A true copy. -
Attest: D. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16
No. 21.291

No. 21.291.
Mrs. j. T. Bevard, Appellant.
The Skidmore- Patterson Coal Company,
Appellee.
Appeal from Cherokee County.
AFFIRMED.
Syllabus. By the Court. Burch, j.
The defendant operates two open pit
coal mines, known as the east mine and
the west mine, which are about a quarter
of mile apart. They are separated by
an interurban railway. which passes within
about thirty yards of the west mine. A
workman in the east mine was ordered by
his foreman to go on a necessary errand
to the west mine. When crossing the rail-
way track the workman was struck by a
car and sustained injuries which proved
fatal In an action for compensation I'M
der the workmen's compensation act, the
petition, which was otherwise sufficient,
presented the foregoing facts. Held, de
murrer to the petition was rightful1y sus-
tanned, because the accident did not occur
on or in or about a mine within the mean
ing of section 5000 of the fact.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE.
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16

=. r. wallingford. c. A. wallingford, and
s. +. Wallingford, Partners, Doing Bust
ness under the firm name and style of
WallingfOrd Brothers, Appellants,
VS..
j. d. McCray Appellee.
Appeal from Finney County
Syllabus. BY the Court. Mason, j.
l. Where a contract is made by tee-
phone for the sale of wheat, to be shipped
within three weeks, and the buyer at once
sends the seller a letter of confirmation
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1917-06-16

No. 1854.
The State of Kansas on relation of S. NJ.
Brewster, Attorney General OF said State.
Plaintiff
The Mayor and Commissioners of the City
of Lawrence, Kansas consisting of W. j..
Francisco, Mayor, W. w. Holyfield, Com
missioner of Finance, and w. w. Cleland,
Commissioner of Streets and Public
Utilities, Defendants.
Original Proceeding in Mandamus.
Judgment for the Plaintiff
Syllabus. By the Court. Mason, j:
A title to an act which describes it as
authorizing cities of a certain class now
owning a system of waterworks to issue
bonds for their extension, is broad enough
to cover a provision for the issuance of
such bonds by cities which owned no
waterworks at the time of the enactment
All the Justices concurring.
A true copy.
Attest: d. A VALENTINE,
(Seal) Clerk Supreme Court.