THE STATE OF KANSAS v. MOSE PEARSON.
No. 14,057. (79 Pac. 1133.)
Appeal from Cherokee district court; WILLIAM B. GLASSE, judge. Opinion filed February 11, 1905. Af. firmed.
Al. F. Williams, for The State.
Ira Heaton, and Skidmore & Walker, for appellant.
Per Curiam: The only legal question presented in this case is whether the district court of Cherokee county lost jurisdiction to try a case at Columbus in December because the case was called at an adjourned term, which opened at Columbus in October and was adjourned over an intervening term of the same court held, as authorized by law, at Galena, in said county, in the month of November. It is conceded that this question has been answered in the negative in The State v. Crilly, 69 Kan. 802, 77 Pac. 701. We are asked to reverse the ruling in that case, which, after careful consideration, we decline to do.
The judgment in this case is affirmed.
ABANDONMENT OF LEASE-See "MINES AND MINING,”
ABANDONMENT OF LIEN-See "ATTACHMENT," 1.
ABANDONMENT OF TITLE-See "TITLE AND OWNERSHIP,"
1.
ACCESSORIES-See "CRIMINAL LAW," 64.
ACCIDENT INSURANCE-See "INSURANCE,” 1.
1. Joinder of Actions.-A cause of action for equita-
ble accounting against two of the defendants in an ac-
tion cannot be joined in a petition with a cause of action
at law to recover damages in tort against another defend-
ant not affected by the first cause of action. Benson v.
Battey....
2. Judgment Affirmed.-Judgment affirmed in an ac-
tion where an accounting was had with the aid of a ref-
eree. Hill Brothers v. Eberly....
"ACTION"-See "WORDS AND PHRASES," 1.
ACTION FOR DEATH-See "DAMAGES;" "RAILROADS."
ADMINISTRATORS-See "PRACTICE, PROBATE Court."
AFFIDAVIT-See "CHATTEL MORTGAGES," 4, 5; "PRACTICE,
DISTRICT COURT," 21; "REPLEVIN," 1.
1. Commission.-In an action for commissions the pur-
chaser was asked who induced him to buy the property.
Held, that the objection was properly sustained, for the
reason that it called for an inference. Johnson v. Dy-
sert...
In an action on a contract for an agent's commis-
sion the trial court properly directed a verdict for de-
fendant. Peckinpaugh v. Lamb....
3. Commission Merchants.-Commission
who sold mortgaged cattle and remitted the proceeds to
the consignor held not liable to the mortgagee upon an
implied contract. Greer v. Newland..
The filing of a chattel mortgage for record does
not impart constructive notice to the commission mer-
chant to whom the mortgaged property is sent for sale
and who sells it and pays the proceeds, less his commis-
sion, to his consignor. Id....
Whether a factor to whom mortgaged property is
consigned for sale, and who sells it and accounts to the
consignor for the proceeds, is charged with notice of
record of the mortgage depends wholly upon the stat-
ute. Id.....
6. Evidence.-Agency cannot be proved by the mere acts
of the one who assumes to act in that capacity. Rich-
ards v. Newstifter....
Testimony of the acts of the agent may be ad-
missible for other purposes after agency has been estab-
lished, or the acts may be shown in connection with proof
of a ratification of such acts by the principal. Id....... 352
Neither the acts nor the declarations of an agent
can be shown to prove his agency. Bank v. Frost...... 480
9. Insurance. A vacancy clause in an insurance policy
held to have been waived by the agent. Insurance Co.
v. Straughan
AGREEMENTS- See "Contracts.”
ALIMONY-See "DIVORCE AND ALIMONY."
ALLEGATION OF AUTHORITY-See "PRACTICE, DIS-
TRICT COURT," 3.
ALLEY, EXCAVATION OF—See “HIGHWAYS,” 13.
ALTERATION OF NOTE-See "PROMISSORY NOTES," 1.
AMENDMENTS-See "PRACTICE, District Court,” 4-6.
AMOUNT IN CONTROVERSY-See "PRACTICE, SUPREME
COURT," 1, 2.
ANNEXATION OF TERRITORY-See "CITIES AND CITY OF-
FICERS," 1-3.
1. Allegation of Authority. An averment in a petition
that a guardian was appointed is put in issue by a veri-
fied answer denying generally the averments of the peti-
tion, where the affiant states that the denials, or contents
of the answer, are true. Caple v. Drew..........
........ 136
2. Amendment.-The allowance of amendments to plead-
ings is a matter that rests in the sound discretion of the
trial court, and its action can only be reviewed when it
clearly appears that such discretion was abused. Ken-
nett v. Van Tassell.....
3. Beneficiary Certificate. In an action by a beneficiary
he need not allege an insurable interest in the life of the
insured; the association must plead and prove it. Fores-
ters v. Hollis.
4. Corporation.-Under an answer consisting solely of a
general denial a corporation cannot avail itself of the de-
fense of want of power to make a contract upon which it
is sued, where such incapacity does not appear from the
petition. Fraternal Union v. Crosier ...
5. Election of Defenses.-Ordinarily a party, after
having deliberately selected his ground of defense and
finding himself defeated thereon, should not be permitted
so to shift it as to court the hazard of another battle.
Barrett v. Coal Co...
6. Justice's Court.-Although in justice's court practice
the defendant is not required to file an answer, if he does
so it will limit the issues as under the ordinary rules of
pleading. Fraternal Union v. Crosier.....
7. Promissory Note.-In the absence of a verified denial
of an allegation of the indorsement of negotiable paper,
or of testimony to the contrary, the indorsee is presumed
to be a bona fide holder for value. Scott v. Geiser...... 498
In a suit on a promissory note a complete defense
on the sole ground that the plaintiff is not the real party in
interest can only be established by showing that a pay-
ment to him would not be a protection against further
liability. Greene v. McAuley......
Held, that a recovery on certain notes given for
rent cannot be defeated on the ground that the plaintiff
is not the real party in interest.
The above conclusion would not be affected by the
assumption that the party whom defendant alleged to be
the owner of the notes had agreed, without consideration,
to accept a less sum than their face value. Id.........
Demurrer to an answer in an action on a patent-
right note held to have been erroneously sustained. Pin-
ney v. Bank.....
12. Replevin.-Answer in replevin under a chattel mort-
gage held not to state a defense. Bartlett v. Bank..... 126
13. Reply Sufficient.—In an action to set aside a fraudu-
lent conveyance the defendant answered that the Kansas
judgment had been merged in an Illinois judgment, and
the plaintiff replied averring that the Illinois judgment
had been vacated; held, that it was error to sustain a
demurrer to the plaintiff's reply. Abbott v. Abbott...... 423
APPEAL-See "PRACTICE, DISTRICT COURT," 6-10; "PRAC-
TICE, SUPREME COURT.'
APPROPRIATION FOR EXECUTIVE RESIDENCE-See
"FEES AND SALARIES," 2.
ARBITRATION-See "CONTRACTS," 2.
ARRAIGNMENT See "CRIMINAL LAW," 1.
ARREST OF JUDGMENT-See "CRIMINAL LAW," 80.
ARREST WITHOUT WARRANT-See "CRIMINAL LAW,"
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