davidaulloa/AmericanStories huggingface dataset:
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16

sideration to the opinions of experts and
the evidence of other witnesses as to the
value of legal services, it is not controlled
by such evidence, as the court itself is an
expert as to the value of attorneys services
and may apply its own knowledge and pro-
fessional experience in determining the
value of the services rendered
5. The elements entering into the value
of legal services are ordinarily the charac-
ter and Importance of the litigation, the
time and labor necessarily involved and the
expense incurred in the performance of the
services, the results obtained, and, where
such is the agreement, that the recovery of
compensation depended upon the contin-
gency of the success achieved. -
q. The testimony examined and held
to be sufficient to sustain the findings and
judgment of the trial court.
All the Justices concurring.
A true COZ.
Attest: D. A. VALENTINE,
(Seal.) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
u. A. VALENTINE.
Clerk Supreme Court.
No 21316.
No p ,316.
The Riverside Park Association. Appellee,

No. 21 ,316-
The Riverside Park Association. Appellee,
VS..
The City of Hutchinson, ct al, Appellants
Appeal from Reno County.
Reversed and demanded
Syllabus. BY the Court. Johnston, e J;
The statutory Limitation that an action
cannot be maintained to enjoin or contest
a special assessment Tor the improvement
of a street unless it is pegun within thirty
DAYS after the amount due on each lot or
piece of ground assessed is ascertained
(Gen. Stat. 1915, S1217), applies to 1nvaiidity
as well as irregularity III the proceedings,
Including objections that the taxing district
extends over too much ground. and also
where the land assessed included abutting
ground not plated. and also lots and blocks
living beyond the implanted part which did
not abut on the improved street; Invalid
proceedings of the kind named which would
defeat an assessment if attacked in time
are not open to attack il the time limit has
expired
All the Justices concurring.
Attest: D. A VALENTINE,
(SeaI) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
No. 1875.
John Kurt, Plaintiff,

No. 81 ,275.
John Kurt, Plaintiff,
vs.
B. A. Shupe. ct al. Defendants,
J. c. Elvin, Appellant,
J. G. Kille. Appellee.
Appeal from Harper County.
AFFIRMED.
Syllabus. By the Court. Marshall, J.
The evidence distracted has been ex-
amined, and it is held that there was suffi-
Gent evidence to sustain the judgment of
the court.
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
D. A. VALENTINE,
Clerk Supreme Court
No. 21.572.

No. q So.
Emma NJ. Trowbridge, Appellee,
Wilson and Company Appellant.
Appeal from Wyandotte County.
Second Division.
AFFIRMED.
Syllabus By the Court. Marshall, j.
Under the workmen's compensation act,
compensation can be recovered where in
ability to labor is caused by pain result
ing from an injury received in an accident
arising out of and in the course of the
employment
All the Justices concurring.
A true copy.
Attest: d. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
D. A. VALENTINE,
Clerk Supreme Court.

No. 21.e1o
Harriet M. Berry. Administrative of the
estate of Daniel p. Berry, Appellee.
chauncey Dewey, ct al. Appellants,
No; H.217
VIM Roy Berry, Appellee,
Chauncey Dewey ct al. Appellants.
Appeals from Sherman County.
AFFIRMED
Syllabus. BY the Court Porter, J.
1. Where a change of venue is granted
regular judge. and under Section 81 of the
Code, (Gen. Stat. 1915, Sec GAIL the Judge
of another district is called in. who. after
trying some of the issues in the case, de-
cilnes. on account Of press of business in
his own district or for any other reason to
the regular judge of the district court
where the case is pending to request the
Judge of some. other district to attend and
serve as judge. The Jurisdiction Of the
judge first called in ends with his refusal
longer to sit as Judge in the case.
ton are not required and there is no pro-
vision for making up issues for the trial
Of motions. On the hearing of a motion
for Judgment against the defendant on
stipulation In the action. the defendant, by
FILING an answer to the motion. does not
visions Of section sis Of the CODE ee tSen.
Stat 1915. Sec. 1215) to three days notice
of the hearing.
Judgment on written stipulation is. that
1t was not Efgned by the defendants but
py an attorney VINO had no authority to act
for them 1t Is proper to admit in evidence
an application for a continuance of the
action sworn to by he defendants attorney,
and which refers to the stipulation as a
ground for the continuance: and. held,
further that having made use of the sdp
ulatiou to obtain the advantage of a con-
tinuance, the defendants should not be per-
mitted to interpose as defense to- the mo-
ton the fact that the stipulation was not
signed by them individually.
4. written stipulation for settlement of
a damage suit fixed the defendants la
bility to the plaintiff at the sum of $500.
which amount the defendants agreed to pay
to the plaintiff when certain criminal cases
pending against the defendants were finally
terminated. and 1t was agreed that II the
sum was not paid within ten days after the
final termination of the criminal actions.
Judgment should be rendered in favor of
the plaintiff and against the defendants for
the sum agreed upon When the criminal
prosecutions terminated defendants brought
an action to enjoin the enforcement of the
stipulation and delayed the taking of judg
ment for several years. Held. that 1t WIS
proper for the court to include in the judC-
ment interest on the sum agreed to be paid
from the time the criminal cases terminated.
5. On the facts stated In the opinion it
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
INSURANCE

S~~~.~-~-.-s-s,-Sc;~-~..-
L. W. WILSON-Fire. tornado. plate glass
FIRE. tornado -I.d automobile Insurance.
Chas- T. Nichols. Phone 2062-
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
No. 81, 315.
Jesse s. Colder ct al, Appellants,


William L. Colder ct al. Appellees.
Appeal from Usage County.
AFFIRMED
Syllabus. BY the Court Dawson. J..
1. Evidence relating to the validity CT a
deed to a farm examined and held sufficient
to show that the deed was a lawful gift,
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
No. 81. 263.
Fred L. Stevens, Appellee,
A. Z. Vermillion, Appellant.
Anpaa1 from Morris County

REVERSED AND REMANDED.
Syllabus. BY the Court, Johnston, c. j.
In an action upon a promissory note
where it had been alleged that the note had
been purchased and transferred to plaintiff
in due course but the copy of the note set
forth in the petition failed to show writ
ten endorsement of the note, and where
upon the trial evidence was received, with
out objection. of a transfer of the note by
a written endorsement before maturity, and
the case was tried by the parties as if the
plaintiff was n holder in due course. the
court on objection to the sufficiency of the
petition at the close of the evidence should
have allowed plaintiff to amend his petition
to conform to the proof.
All the Justices concurring-
A true copy. -
Attest: u. A. VALENTINE.
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16

No. q ,2SS
John White, Appellee,
John NJ Mason and Angenette Mason, (Wil-
liam A. Dieball and Helen DiebalD, APP
pellants.
Appeal from PawEee County.
AFFIRMED.
Syllabus. By the Court. West, J.
The transcript Las been examined and
is found to contain evidence to afford firm
support for the findings and conclusions of
the trial court
= All the Justices concurring.
A true copy.
Attest: H. A VALENTINE,
(Seal) Clerk Supren Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
No. II, 262.
T. T. Afford, Appellant,

T. T. Afford, Appellant,
w. H. Dennis, ct al, Partners, ETC., ct al,
Appellees.
Appeal from Chautauqua County.
REVERSED.
Syllabus. By the Court. Dawson. ].
1. Rule followed that equity will not
or improvident bargain.
2. Rule followed thai equity will not
arbitrarily, declare a forfeiture for breach
of implied covenant
3. A lease of two tracts of land ZIG
acres and 220 acres respectively was made
term of ten years and as much longer as
gas or oil might be found in paying guam
titles, the lessees agreeing to pay royalties
OH all paying wells and binding them
selves to commence operations within six
months, and to complete, three wells be,
expense shall be incurred under this
lease etc. The larger tract was developed
and many wells were drilled thereon, but
in nearly fourteen years nothing done
towards drilling or developing the smaller
tract. Plaintiff succeeded to the ownership
of the.latter and brought suit to cancel the
lease. alleging that there was implied
covenant to prospect and develop his tract
as well as the other. No demand was made
on the lessees to drill on the plaintiffs
tract prior to the commencement of this ac-
ton. Held. that the ordinary rule that
equity will not relieve against improvi-
dent bargain prevents an absolute forfeit
ture that equity will not forfeit a contract
for the mere breach of one of its implied
stated cause of action for some redress
either in damages if such be ascertaipable
or in the alternative that the lessees be
rquired to drill and develop plaintiffs lsE,,
within a reasonable time pursuant to their
implied covenant, under penalty of forte
ture following the doctrine announre.i
in syllabus 1 of Howerton V Gas Co. -
Kan. ;s67, los >Pac s13
All the Justices eoncurring.
A true copy
Attest: ID. A VALENTINE.
(Seal.) Clerk Supreme Court
The United States Tire Company, a cor
poration. Appellant,
Albert Z. Kirk and Elmer C. Aspey, CO.
partners doing business under the
name and style of The Hutchinson Motor
Car Company. Appellees.
Appeal from Reno County.
Affirmed and Modified.
Syllabus. By the Court. Mason, J.
1. When a settlement of an account is
effected by the constructive delivery by the
debtor of goods which the creditor accepts
in full satisfaction If his claim. but which
are left in the physical possession of the
debtor, and remain there for considerable
period during which the debtor asserts and
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
UNDERTAKING

THE L. NJ pENwELL Undertaking Co.
5O6-J0s-510 Quincy street Telephone 1872
H. ". BOMGARONER undertaken Per
sonal service. Masonic Bldg Phone 14s
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16

No. q. 261
c. w. Eastman. Appellee,
The Atchison Topeka and Santa Fe Rail-
way Company. Appellant
Appeal from Harper County.
REVERSED.
Syllabus. BY the Court. West j.
1. The plaintiff alleged that the defend
ants roadmaster directed him to board a
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
No. 81, 800.
H. d. Hover, Appellant,

No. 81 800.
H d. Hover, Appellant,
VS..
D. s. McNeill, and Alice Mcneil, Appellees.
Appeal from Greenwood County.
REVERSED.
Syllabus By the Court. Burch, j.
THE provisions of an oil and gas lease ex-
amined, and held the instrument did not
operate to sever and convey as real estate,
subsurface mineral deposits
All the Justices concurring.
true copy. -
Attest: ID. A. NALENIlNE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16

No, 1854.
The State of Kansas, Appellee and APP
pellant.
John Coletti and Lorenzo Perello. APP
pellees and Appellants.
No. 81 800.
The State of Kansas. Appellee and APP
pellant,
Nick Bonko and Lorenzo Perello. Appel
lants and APpellees.
The State of Kansas, Appellee and Ap-
pellant,
VS..
Nick Bonko and Lorenzo Perello, Appel
lees and Appellants.
Appeals from Cherokee County.
AFFIRMED.
L. The provisions of Sec 16 Art II of
the state constitution that mo law shall
be revived or amended unless the new act
contain the entire act revived or the sec
ton or sections amended, and the section
or sections so amended shall be repealed"
has no room for application to an amend
Pac. 7S1.)
2 Chapter 1ss, Laws of 1915 providing
for appeals from convictions in INSIDE
meanors and which requires the defend
ant to give bond conditioned upon the
payment of the fine and costs, and also
bond conditioned that he will not violate
the law under which the conviction was
the Bill of Rights which provides that
excessive bail shall not be required" The
bonds in question are not in any sense of
the term bail bonds
3. 1t is within the power of the legisla-
ture to impose additional requirements
upon the exercise of the right to appeal to
the supreme court from a criminal convic
ton, Notwithstanding the provisions of sec.
S197. Gen. Stat. 1915 which gives such an
appeal "as a matter of right
T. The provisions of sec. S2o6 Gen Stat.
1915 (Sec. 2S7. Grim. Code), that the bond
to stay the judgment of conviction shall be
approved by the trial court or the judge
thereof, or the supreme court or any JUS
tice thereof, is for the protection of the
state alone and not for the benefit of the
defendant or his surety, and may be
waived by the state; and the failure to
have the bond approved can not be taken
advantage of by the principal or the surety
in an action to recover on a bond.
All the Justices concurring.
true copy.
tSeal1 Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16

that the grantor acted intel1igently, indie
pendently, and of her own volition, and free
from undue influence on the part of the
grantee.
2. Where the plaintiffs take the deposit
ton of the defendant grantee of a deed
which is assailed on the grounds that the
grantor was mentally Incompetent to make
it and that she had made it through the
undue influence of the grantee. and where
plaintiffs hut NOT offered in Nevidence Nv
them, the taking of defendants deposition
by the plaintiffs is waiver of objections
to his testimony, and the deposition may
properly be read in evidence on behalf of
the defendant grantee.
All the Justices cencurring
true copy.
Attest: D. A. VALENTINE.
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
u. A. VALENTINE,
Clerk Supreme Court.
No. 2I.312

No. 21.312
John Mckenna and o. H. Piller, doing
business under the firm name Of Mcken-
ma & Piller, Appellees,
james II. Morgan, Appellant
Appeal from Harper County.
REVERSED.
Syllabus. BY the Court. Burch, j.
i. In an action to recover for shortage
in quantity of land conveyed to plaintiff
by defendant, the defendant counter claim
ed for shortage IN quantity of stock OF
merchandise traded to him for his land
Held, section 6994 Of the General Statutes
of 1915 prevents application of the statute
of limitations to the cross demand.
2 The counterclaim was based on
fraudulent representation respecting the
quantity of goods. Held. the right to re,
cover damages resulting from the fraud
was not defeated by making payments and
otherwise recognizing the obligation Of the
contract
g. The representation was that the stock
of merchandise contained sufficient goods,
invoiced Mt cost, to amount, with certain
articles of agreed Talue, to certain sum-
Held the representation was not mere
exfression of opinion to value.
4 The evidence in support of the counter
claim examined, and held sufficient to war
rant its submission to the jury.
All the Justices concurring.
A true copy. -
Attest: II. A VALENTINE,
(Seal.) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
No. 81, 324.
W. E. White, Appellant,


The City of Kansas City, Kansas Appellee
Appeal from Wyandotte County
First Division.
AFFIRMED.
Syllabus. By the Court. Mason, J.
A purpose to legislate concerning horse
drawn wagons as well as automobiles is
shown by the amendment of a statute re-
curing certain precautions in crossing a
bridge, the relation of the two acts being
indicated by the following reprint, in which
omitted words are enclosed in brackets
and added words are italicised:
THAT all persons owning, controlling
operating or managing steam gasoline
threshtng machines, sawmills. Cor steam)
traction engines or transfer wagons or
vehicles Of any kind used for the transpor-
tation or distribution of oil or other rner-
chandise or commodity and (in) moving the
same over the. public highways are re-
quired to lay down planks not less than
one foot wide, three inches in thickness
and of sufficient length. on the floor of ali
bridges and culverts SITUATE on the public
highway, while crossing the same for the
wheels Of said engines of any kind to run
on while crossing such bridge or culyert ::
Provided, That this section shall not apply
to any machine or engine not exceeding
(one) three tons in weight"
All the Justices concurring
A true copy.
Attest: d. A. VALENTINE,
lSeal.I Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16

No. 20,SS7.
First National Bank of Hays City, Kansas,
Appellant,
A. P. Staab and Jacob p. Staab, Appellees.
Appeal from Ellis County.
REVERSED
Syllabus. By the Court West, J.
1. An instruction covering fraud and
mutual mistake, not pleaded, held i'm
proper.
2. Rule followed that the terms of a plain
promissory note can not be varied by
parol.
3. The affidavit in replevin made by the
plaintiff was properly permitted to go to
the jury on the question of value of the
property involved.
4. Proof of feeling of insecurity was
sufficient to support the plaintiffs a1lega-
ton that 1t deemed itself insecure, the rea-
sonableness of such feeling being i'm
material.
All the Justices concurring.
true copy,
Attest D. A VALENTINE,
(Sea) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16

No. 2I ,314.
J. NJ. Redfern, Appellant,
E. NJ. Ebyl ct al. Defendants,
The City of Anthony Appellee
Appeal from Harper County
AFFIRMED
Syllabus. BY the Court Marshall
While constructing sewer a city is not
engaged in an enterprise involving any ele-
ment of gain or profit, and does not come
within the terms or operation of the work
mems compensation act
All the Justices concurring
A true copy.
Attest: D. A VALENTINE
tSeal-) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16

No. 21.5O5.
Union Pacific Railroad Company, Appellee,
WAYNE J. Davenport Adolph Flick and
Oalus Grosfield. Appellants.
Appeal from Cove County.
AFFIRMED.
syllabus. By the Court Porter, J.
The Union Pacific Railroad company by
the grant to it's predecessors in interest
under the act of congress of July l. 1852.
(12 Stat 4S9) and the amendatory act of
July p. 1861 (13 Stat. 3J6). became the
owner in fee of right of way two hun
bred feet from the center of the track.
which right is superior to claims initiated
after the act of 1864 and is not defeated by
adverse possession. The grant is of the
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16

No. 81 292.
Frank Battese, Administrator, ETC., Appel
liant,
VS..
Union Pacific Railroad Company, Appellee.
Appeal from Jackson County.
AFFIRMED.
Syllabus. By the Court. Dawson, ].
AN administrator appointed for the estate
of resident of Kansas by a Kansas pro-
bate court has power to maintain an
action in a Kansas court to enforce a liza
bility created by the laws of another state
for the wrongful death of the intestate
which occurred in such other state, follow
ing Mccarthy, Admir-, v. Railroad Co., Is
Kan. 40.
All the Justices concurring.
A true copy.
Attest: D. A. VALENTINE
lSeal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
SUPREME COURT SYLLABI
The State of Kansas, Appellee,
William T. Wellman, Appellant.
Appeal from Douglas County.
A !. L L 4


Syllabus. BY the Court. Mason, J.
L. Although the federal law does not
provide for the surrender by n state as
fugitive from justice of one who has MO-
lated the criminal laws of another state
without having been present therein, and
although in the absence OF state legislation
no authority exists for such surrender,
nevertheless, where, in the absence of any
local statute, a person surrendered by
one state to another as a fugitive from
justice, the fact that the accused had not
been in the demanding state at the time
OF the alleged Offense, or since then, 1oes
not deprive its courts of Jurisdiction to try
him therefor nor does it show such an
misssl OF the case agai3st him. I'll"
2. a person who has never been in this
state may under some circumstances be
rightfully convicted here of a violation Of
the statute making it felony for parent,
without lawful excuse. to neglect or refuse
to provide for the support of his children
under the age of sixteen years who are IN
destitute circumstances.
3. Where by the misconduct of husband
and father in another state his wife and
children are compelled to leave him., and
they come to Kansas where in an action in
which personaI service has been had upon
him she obtains Il divorce and a decree
awarding her the custody of the children,
and requiring him to make periodical pay
ments for their support, he may thereafter
while in another state be guilty of a viola
ton of the statute referred to, by failing
to provide in any way for the children,
Notwithstanding that they were brought
into this state without his knowledge or
4 The provision of the civil code that,
in order to preserve for review Il rulng
excluding evidence, the evidence must be
produced at the hearing of the motion for
a new trial. applies well in criminal
cases, inasmuch the criminal code makes
such ruling. if erroneous, a ground of
new trial only by the ;coption of the civil
procedure in relation thereto
.. A statement by the trial judge held
not to be shown to have been prejudicial
to the defendant
G. In a prosecution under the statute
making 1t a criminal offense for parent
tosneglect or refuse. without LAWFUL excuse,
in destitute necessitous circumstances,
IL is not n defense for father upon whom
rested the duty of providing such support
TO show that the necessities of the children
were relieved by the interposition of others
Johnston c. J., Burch, J., Porter, j.,
West. J.. and Marshall J., concurring.
Dawson. J.. dissenting.
A true copy.
Attest: u. A. VALENTINE,
(Seal) Clerk Supreme Court
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
No. 21,514.
William Smith, Appellee,

No. 81 514.
William Smith, Appellee,
The City of Kansas city, Kan, Appellant
Appeal from Wyandotte County
Division Number One.
AFFIRMED
Syllabus. By the Court west, j.
The paper relied on as release appears
to have been signed when the parties were
mutually mistaken to the extent of
plaintiffs injuries, and the sum therein
named being manifestly inadequate such
instrument is not binding
All the Justices concurring.
A true copy.
Attest: ID. A. VALENTINE,
(Seal) Clerk Supreme Court.
The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1918-02-16
d. A VALENTINE,
Clerk Supreme Court.

No. 81 374
The State OF Kansas, ex rel, Blanche Car.
mons, Appellant,
Robert L. Woods Appellee.
Appeal from Chase County
AFFIRMED.
Syllabus. By the Court. Johnston c. r
1. In bastardy proc ,eding the instruc-
ton given to the jury that "tbe law pre-
sumes morality and uprightness until the
contrary is made to appear from the evil
dence, and you are instructed that defend
ant in this case is presumed to be innocent
OF the charge made against him and that
presumption remains with him through all
stages of the trial and until overcome by
the evidence of the state by a preponder-
ance of the credible evidence" is held not
erroneous
2. A jury is not warranted in arbitrarily
or capricfously rejecting the testimony of
a witness, but neither are they required to
accept and give effect to testimony which
they find to be unreliable although it may
be uncontradicted.
All the Justices eoncurring.
A true copy.
Attest: D. A. VALENTINE.
(Seal) Clerk Supreme Court.