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fully control its official action. Railway Co., Pierce v. Butters, 21 Kan. 125, 129, however, v. Meyer, 58 Kan. 305, 49 Pac. 89; Gen. Stat. we find a precedent almost identical with 1909, $ 9037.

the case at bar. There the question was It may readily be conceded that, where a whether a notice first published on April statutory board is created for the discharge 13th and last published on April 27th was a of a special duty, the rule in Railway Co. v. sufficient compliance with a statute requirMeyer, 58 Kan. 305, 49 Pac. 89, should be ing notice for three consecutive weeks. Mr. strictly adhered to. But the public business | Justice Valentine said: of municipal corporations arises from day to "They amended the other affidavit by filing day, and should be attended to as it arises. It a new and amended affidavit, showing that said is imperative that the functions of local mu- | .for three consecutive weeks. to wit. April 13

notice was published in said weekly newspaper nicipal government be not suspended in case to April 27, 1877'; that is, we construe the of a vacancy in the city council. If there are affidavit to mean that there were three insersufficient members of the council remaining

ctions of the notice in the said newspaper, to

wit, one on April 13, one on April 20, and one in office who vote for and sanction the work

on April 27, 1877, and, with this construction, to be done or the project to be undertaken we think the affidavit as thus amended was suffito constitute a majority of the entire constituent membership, and not merely a ma- Again, in Tidd v. Grimes, 66 Kan. 401, 71 jority of a quorum, it seems that their official Pac. 844, it was held that a statute requiraction is valid. Tending to support this view ing the county treasurer, antecedent to sale are Satterlee v. San Francisco, 23 Cal. 314; of property for delinquent taxes, to cause a State ex rel. Harty V. Kirk, 46 Conn. 395; notice to be published "once a week for four Knoxville v. Knoxville Water Co., 107 Tenn. consecutive weeks," was sufficiently complied 647, 64 S. W. 1075, 61 L. R. A. 888; 2 Dillon, with by four publications, one each separate Municipal Corporations (5th Ed.) 8 534; 2 and successive week, the dates of publication McQuillan, Municipal Corporations, 88 593, being August 6th, August 13th, August 20th, 594.

and August 27th-covering only twenty-two An examination of section 1357 of the days. General Statutes of 1909 is helpful. It is It will be observed that this section under there provided that permanent removal from scrutiny (section 4) also provides that: the city causes a vacancy in any city office. “The last publication (of the three consecutive Then it proceeds thus:

weeks) shall not be more than ten days prior “Vacancies in the offices of mayor and coun

| to the date fixed therein for the passage of such

ordinance." cilmen shall be filled for the unexpired term at a special election to be called and held for that This provision was strictly observed. The purpose, as may be provided by ordinance." last publication was on the day preceding the

Now it cannot be the law that the public passage of the ordinance. The two prior business of Goodland should be suspended publications were made in the two preceding until an ordinance is passed regulating the weeks. In view of the precedents quoted and calling of an election to fill a vacancy in the this definite language of the statute touching office of city councilman, and until an elec the proper time for the last publication, we tion is called thereunder, the result canvassed must hold that the notice published first on and declared, and the person elected and March 13th and last on March 27th, covering seated.

dates included in three separate and succes[5] 4. Turning next to the question of no- sive weeks, was sufficient. tice, the statute (chapter 124, Laws 1913, § 4) [6] 5. It is next urged that the statute provides that, before the bond ordinance is (chapter 124, Laws of 1913) violates.sections enacted, a notice shall be published to ad- 16, 17, and 20, art. 2, of the state Constitution. vise the citizen taxpayers of the projected These objections do not call for much discusbond issue. It reads:

sion. The act in question cannot be said to “Such notice shall be published for at least cover more than one subject, which is a grant three consecutive weeks * * * prior to the of power to certain cities to enlarge, repair, exdate fixed therein for the passage of such ordi- tend, and improve their waterworks sysnance."

tems. The details of the act are all pertiThe notice was published on March 13th, nent to the main subject. We think also March 20th, and March 27th. Apparently that the classification of the cities, those the city proceeded on the theory that a no- second and third class cities which own tice published each week for three successive their waterworks and whose indebtedness weeks was a sufficient compliance with this does not exceed 15 per cent. of their assessed provision. The gist of appellant's conten- valuation, is not unreasonable nor violative tion is that, since three weeks are twenty- of the uniformity clause of the Constitution. one days, notice should have been given for To raise a suspicion or presumption that period. It is not an easy matter to against the regularity of this statute's legharmonize all the decisions touching the islative history, the appellant directs our atcomputation of time for notice, interpreting tention to Senate Joint Resolution No. 16, as they do the vast multitude of statutes which which immediately follows the act in quesin one way or another prescribe notice as a tion (page 201), and which orders the insertion condition precedent to official action. In í of an enacting clause in the act. This joint res. olution does not, as contended by appellant, | The defendant contends that probable amend the statute. It merely voiced the de- cause for the prosecution was established termination of the Legislature to amend the by the evidence. No special findings of fact bill before it became a statute. The enrolled were requested. The only index to the bill on file with the secretary of state shows jury's view of the facts is the general ver. the enacting clause duly inserted. The joint dict. This verdict brings to the plaintiff's resolution was regularly adopted by a consti- aid every fact and every inference of fact tutional majority of each house while the bill | favorable to him which the testimony SUSitself (Senate Bill No. 491; chapter 124, tains. The defendant's narrative of the Laws of 1913) was still within legislative things relied on as constituting probable control, and one day before it was approved cause was not conceded to be true. On the by the Governor (Senate Journal, 789; House other hand, the plaintiff's account of wbat Journal, 1123). The Legislature always has happened leading up to the prosecution was the right to make corrections or germane quite incompatible with that of the defendamendments to a bill until the Governor has ant, and the explanation of the verdict is acted upon it. 36 Cyc. 951. It may recall that the jury believed the plaintiff. a bill from the Governor unless he has sign. It is said that the defense of advice of the ed it. 36 Cyc. 959. In this case we think the county attorney was established. Here again Legislature was needlessly formal in its pro- it is to be assumed that the jury disbelieved cedure to perfect the bill. The joint resolu- the story which the defendant told the countion correcting the error has no more perti- ty attorney. The advice of the county atnency in the published book of session laws torney on a state of facts intentionally magthan would the roll call on the bill, or the mo- nified or fabricated would not be a defense. tions and speeches directed toward it in the Besides this, accepting the story which the course of its consideration by the Legisla defendant told the county attorney, he omitture. 36 Cyc. 951. The objections to the act ted to inform the county attorney of a numare without merit.

ber of material facts which, if mentioned, From the foregoing it will be seen that no would have changed the course of subseprejudicial error arose in the district court in quent events. sustaining the demurrer to plaintiff's peti-i There was abundant evidence to sustain tion.

the finding of malice included in the gen. The judgment is afirmed. All the Justices eral verdict. concurring.

The instructions to the jury contained the

following: (97 Kan. 38)

"I pass now to the defense in this case. There RORSCHACH V. DIVEN. (No. 19790.) are several items set up by way of defense. The

defendant Diven claims, first, that there was (Supreme Court of Kansas. Jan. 8, 1916.) probable cause, and has given you his version

of the facts. I have undertaken to group these (Syllabus by the Court.)

facts as given by the plaintiff when instructing APPEAL AND ERROR 1064 - MALICIOUS you touching probable cause, and I think I can

PROSECUTION 22-ADVICE OF COUNSEL say no more."
HARMLESS ERROR – INSTRUCTION - TYPO Through a typographical error the word
GRAPHICAL ERROR.

"plaintiff" was inserted in the instruction Instructions to the jury considered, and held not to be prejudicially defective. The evidence instead of the word "defendant." This is considered, and held to sustain the verdict. perfectly manifest, and was perfectly man

[Ed. Note. For other cases, see Appeal and ifest to the jury, because the court had not Error, Cent, Dig. 88 4219, 4221-4224 ; Dec. Dig..

grouped the facts given by the plaintiff when 1064; Malicious Prosecution, Cent, Dig. 88 45-48; Dec. Dig. 22.]

instructing on the subject of probable cause,

but had grouped the facts given by the de Appeal from District Court, Franklin

fendant. Another criticism of the court's County.

instructions is unwarranted because a sinAction by Carl E. Rorschach against C. A.

gle expression is seized upon dissociated Diven. From judgment for plaintiff, defend.

from the context which made the subject ant appeals. Affirmed.

under discussion plain. Ralph E. Page, of Ottawa, for appellant. The instructions of the court were full, W. S. Jenks, of Ottawa, for appellee.

clear, correct, and phrased in a way to en

able the jury to apply them to the evidence. BURCH, J. The action was one for dam- | The evidence was abundant to support the ages for malicious prosecution. The plain-verdict, and the judgment is affirmed. AU tiff recovered, and the defendant appeals. I the Justices concurring.

For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(97 Kan. 61)

i proper motion under rule 10, but the statute TUCKER v. TUCKER (EAGLE, Intervener). leaves this court without jurisdiction unless (No. 19822.)

the appeal be taken within six months from (Supreme Court of Kansas. Jan. 8, 1916.) the rendition of the judgment or order ap

pealed from. Laws 1913, c. 241, 8 1. (Syllabus by the Court.)

This jurisdiction is vested by statute only, APPEAL AND ERROR 345—NOTICE OF AP

and no estoppel, laches or informality of a PEAL-TIME FOR SERVING-DISMISSAL.

A judgment was rendered April 17, 1914. party can conferit. Neither does failure A motion for new trial was filed in time, but to raise the question relieve us of the duty was not decided until November 14, 1914. , The I to decline, even of our own motion, the exnotice of appeal, served November 19, 1914, re- | cited that the intervener appealed "from the ercise of jurisdiction which we do no judgment and decision of this court entered sess. Cohen V. Trowbridge, 6 Kan. *385 ; herein about April 17, 1914." Held, that such Hodgden v. Com'rs, 10 Kan. *638; Toof v. notice was too late, and the appeal must be dis

Cragun, 53 Kan. 139, 35 Pac. 1103; Zinkeisen missed for want of jurisdiction. (Ed. Note.--For other cases, see Appeal and

v. Lewis, 71 Kan, 837, 80 Pac. 44, 83 Pac. Error, Cent. Dig. 88 1893, 1896; Dec. Dig. Om 28; Kansas City v. Dore, 75 Kan. 23, 88 345.)

Pac. 539; Hawkins v. Brown, 78 Kan. 284, Appeal from District Court, Shawnee

Syl. 1, 97 Pac. 479; Trader v. School Dis

trict, 86 Kan. 878, 122 Pac. 895; Nuhfer v. County. Action by W. H. Tucker against Arthur

Flanagan, 87 Kan. 420, 124 Pac. 418. Tucker, wherein Charles S. Eagle intervened.

The appeal is dismissed. All the Justices From the judgment, intervener appeals. Ap

concurring. peal dismissed.

(97 Kan. 21) Garver & Garver, of Topeka, for appellant. TANNER v. CHEROKEE & PITTSBURG Hamilton & Hamilton, W. E. Atchison, and

COAL & MINING CO. W. B. Lowrance, all of Topeka, for appel

(No. 19783.) lee.

(Supreme Court of Kansas. Jan. 8, 1916.)

(Syllabus by the Court.) WEST, J. This appeal involves the validi

MASTER AND SERVANT 278, 286-INJURY TO ty of a chattel mortgage, a question ably

SERVANT - NEGLIGENCE – PLEADING AND briefed and presented, but the pleasant duty PROOF. of considering and determining this question

A demurrer to the plaintiff's evidence was is obviated by the somewhat unpleasant ob

properly sustained on the ground that the spe

cific negligence charged was not proved, and on ligation resting upon us to dismiss the ap- the further ground that no actionable negligence peal. The journal entry recites that the on the part of the defendant was established. judgment was rendered April 17, 1914. A. (Ed. Note.-For other cases, see Master and motion for new trial was filed within three

hree Servant, Cent. Dig. 88 954, 956–958, 960_969,

971, 972, 977, 1001, 1006, 1008, 1010_1015, days, but was not passed upon until Novem- 1017--1033. 1036-1042. 1044. 1046–1050: Dec. ber 14, 1914. November 19, 1914, the no- Dig. Om 278, 286.) tice of appeal was served and aside from

Appeal from District Court, Crawford caption and signature was in the following

County. language:

Action by W. E. Tanner against the Cher"Notice is hereby given that Charles S. Eagle lol appeals to the Supreme Court from the judg. ment and decision of this court, entered herein From a judgment for defendant, plaintiff apabout April 17, 1914, on the interplea of Charles peals. Affirmed. S. Eagle, in so far as said judgment and decision holds the chattel mortgage of said Charles

L. H. Phillips, of Pittsburg, for appellant. S. Eagle to be invalid."

W. R. Smith, of Topeka, and B. S. Gaitskill It will be observed that this notice was and D. H. Woolley, both of Girard, for apserved more than seven months after the pellee. date of the rendition of the judgment. When the motion for a new trial was decided, the

ew trial was decided. the BURCH, J. The action was one for dam. time for appeal from the original judgment ages for personal injuries sustained through had already expired. Hence it was neces- the neglect of the defendant to inspect and sary in order to present a matter of which make secure the traveling ways of its coal we would have jurisdiction to appeal from mine. A demurrer was sustained to the the order denying the motion for a new trial. / plaintiff's evidence, and he appeals. This was not done. The notice limited the The proof was that the plaintiff, who was appeal to the original judgment, or to such an air man, was injured in a hauling crosspart thereof as upheld the validity of the cut which had been closed some months bemortgage.

fore the accident. The crosscut was no longIt is urged that the plaintiff should not be er used and could not be used as a traveling heard on his motion or suggestion in his brief way. The only occasion any one had to use that the appeal be dismissed for the reason it after the manner of a traveling way was that he should have called attention of the to step into it twice a month to inspect the court to the matter in proper time and by stopping, and the place was perfectly safe

any.

OmaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

for that purpose. As will shortly appear, I MARSHALL, J. Reinhardt Peter died in when the plaintiff was injured the place was 1904, leaving a widow, Johanette Peter, no more a traveling way or in use as a three daughters, Bertha, Lucy, and Carrie, traveling way than a miner's room would and a son, Herman. The daughters were all have been. Consequently the negligence married. Carrie, who afterwards died, left charged was not established.

as her heirs her husband, the plaintiff, and The stopping was not air tight, and the two daughters, Nellie and Eva. Upon replaintiff was directed to make it so. To do turning from the funeral of Reinhardt Peter, this it was necessary to build a wall on one Johanette produced the will before the as. side of the defective stopping and fill the sembled children, and informed them the space between the wall and the defective father had told her before his death that he stopping with fine dirt. Dirt for the purpose had left all the property to her: that it was taken from the bottom of the crossent. I they were not satisfied and did not want to

take her word for it, the will should be opentwo feet deep which loosened a rock which

ed and they could see for themselves. To fell and injured him. The plaintiff and his

this the children said they were satisfied, principal witness, his brother, who was as

and told her it was all right, and not to file sisting him when the accident occurred, tes

the will on account of the expense. The tified that digging in the bottom of the cross

plaintiff was present and said he was satiscut loosened the rock and caused it to fall.

fied to leave it that way. From that time The plaintiff further testified that digging in

the will remained in the Peter home in the the ground there was bound to be dangerous,

possession of Johanette Peter until Septemthat he was "leery” all the time, and that the

ber 15, 1913, when it was probated. There more he dug the more dangerous he made the

was no exception taken to the order of the place. The case, therefore, is one in which the plaintiff with knowledge of the condi

probate court; no appeal was taken, and no

contest of the will has been instituted in the tions made the place unsafe by the very re

district court. The will was always in the pair work he was doing. The duty of the employer to provide a reasonably safe place

house, and any one interested could get it to work does not extend to such situations.

if they wanted it. All the estate of the testaThe defendant had elected not to be gov

tor, consisting of about 43 acres of land in erned by the Workmen's Compensation Act,

Wyandotte county, Kan., was devised to and the plaintiff argues that the defenses of

Johanette Peter in fee simple. She has occontributory negligence and assumption of cu

nofcupied the land, collected the rents, and paid risk were not available. The defendant does

the taxes thereon continuously since the not seek to avail itself of those defenses.

death of her husband. The plaintiff, as heir The defense is want of actionable negligence.

of his wife, Carrie, claimed an undivided oneWant of actionable negligence appeared from

sixteenth interest in the land, and brought the plaintiff's proof, and the demurrer to the

'this action to recover the same. On the trial evidence was properly sustained.

the court rendered judgment for the defendThe judgment of the district court is | ants. The plaintiff appeals. affirmed. All the Justices concurring.

The plaintiff contends that because the will

was not offered for probate within three (97 Kan. 63)

years after the death of the testator, the devFREEMAN v. PETER et al. (No. 19824.)* isee Johanette Peter received nothing un(Supreme Court of Kansas. Jan. 8, 1916.) der the will, and that the land descended to

the heirs of Reinhardt Peter. This would (Syllabus by the Court.)

be correct but for the conduct of the heirs. ESTOPPEL Om78--CLAIM FOR INHERITANCE.

They with the plaintiff led defendant Johan. The heirs of a deceased person are estopped from claiming any part of the estate by inheri- ette Peter to believe that it was not necestance where by their conduct they have induced sary to do anything with the will. She re the widow, to whom all the property was devis

lied on their statements and acted on them. ed, not to probate the will, and the will is not probated for more than three years after the

The plaintiff seeks to take advantage of the death of the testator, although in the power and failure to have the will probated in proper control of the devisee during all that time.

time. He, personally and as heir of his [Ed. Note.-For other cases, see Estoppel,

pel, deceased wife, is estopped from so doing. Cent. Dig. $8204-210; Dec Dig. Om78.)

The conversation between the widow, the Appeal from District Court, Wyandotte

plaintiff, and the children of the testator County.

partakes somewhat of the nature of a family Action by Evert E. Freeman against Jo

settlement of the rights of the heirs in hanette Peter and others. · From judgment

the property left by Reinhardt Peter, and for defendants, plaintiff appeals. Affirmed.

under the circumstances surrounding this W. H. McCamish, of Kansas City, for ap- | case that settlement should not be disturbed. pellant. John D. Myers, of Kansas City, The judgment is affirmed. All the Justices Mo., for appellees.

concurring.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(97 Kan. 73)

Idence is conflicting, a refusal to direct a verdict STATE SAV. BANK OF IOLA v. MICHAEL is not error. et al. (No. 19828.)

[Ed. Note. For other cases, see Appeal and

Error, Cent, Dig. 88 3938-3943; Dec. Dig. Om (Supreme Court of Kansas. Jan. 8, 1916.)

1003; Trial, Cent. Dig. $$ 342, 343; Dec. Dig. (Syllabus by the Court.)

Om 143.) NEW TRIAL 39—GROUNDS-DIRECTED VER

12. APPEAL AND ERROR 1067 – HARMLESS

ERROR-INSTRUCTIONS.
DICT.
A new trial is properly granted when the

One allegation of negligence on which some

evidence was introduced was ignored in the incourt, disregarding pleaded defenses sustained by evidence, has instructed a verdict for the

structions given; the jury being charged that, plaintiff,

to recover, the plaintiff must sustain the other

allegation. Held that, under these circumstanc(Ed. Note.-For other cases, see New Trial,

es, it was not material error to refuse instrucCent. Dig. 88 57–61; Dec. Dig. Om 39.]

tions requested by the defendant on the allegaAppeal from District Court, Allen County. |tions thus ignored. Action by the State Savings Bank of Iola

[Ed. Note. For other cases, see Appeal and

Error, Cent. Dig. § 4229; Dec. Dig. Om 1067 ; against Charles Michael and others. From

Trial, Cent. Dig. § 475.) judgment for defendants, plaintiff appeals.

3. APPEAL AND ERROR 1062 – HARMLESS Affirmed.

ERROR-REFUSAL TO SUBMIT SPECIAL QUESApt & Apt, of Iola, for appellant. Baxter D. McClain, of 'Iola, and J. T. Cooper, of

The refusal to submit two of ten special

questions requested by a party is not materially Fredonia, for appellees.

prejudicial when substantial repetitions and

when the answers to those submitted clearly inBURCH, J. The action was one to recop-dicate that answers to those refused would not er on a promissory note. The court instruct- have benefited the party complaining. ed the jury to return a verdict for the plain

|_(Ed. Note. For other cases, see Appeal and

Error, Cent. Dig. 88 4212-4218; Dec. Dig. Om tiff. Afterwards the court granted a new 1062.1 trial. The plaintiff appeals.

4. CARRIERS 333 – INJURY TO STREET CAR Michael, Fowler, and Farmer gave their PASSENGER-CONTRIBUTORY NEGLIGENCE. note to the plaintiff and secured it by a chat It was not necessarily negligent for the tel mortgage on property contained in a

ined in a plaintiff to attempt to alight from the car a

short distance from the usual stopping place if laundry. They sold the laundry to Brunner, she believed it had come to a stop in response who assumed and agreed to pay the chattel to her signal or request. mortgage debt. Afterwards Brunner gave (Ed. Note.--For other cases, see Carriers, possession to the plaintiff, who sold and bid Cent. Dig. 88 1385, 1386, 1388-1397; Dec. Dig. in the property. There was evidence that

ww333.] the property was more than sufficient to pay ".

5. APPEAL AND ERBOR C 1005 - SPECIAL

1 FINDING-CONFLICTING EVIDENCE the plaintiff's lien. Only a small sum was

A special finding, although against much of credited on the note as the net proceeds of the evidence, if supported by some competent the sale. The plaintiff then sued the makers evidence, not attempted to be set aside by motion of the note. Their answer contained two

of the complaining party, and approved by the

trial court on overruling a motion for new trial defenses upon which evidence was intro-involving such finding, will not be disturbed by duced, but which the court ignored when di- this court. recting a verdict. One defense was that the_[Ed. Note.--For other cases, see Appeal and plaintiff agreed with Brunner to take the

Error, Cent. Dig. $8 3860-3876, 3948–3950;

| Dec. Dig. Om 1005.) property covered by the chattel mortgage in full satisfaction of the debt. The other de

Appeal from District Court, Montgomery fense was that the sale was so conducted as

ty. to amount to a conversion of the property so

Action by May W. Christian against the that the plaintiff should be charged with its Union Traction Company. From a judgment full value. Both defenses were clearly avail for plaintiff, defendant appeals. Affirmed. able to the defendants, there was evidence to John J. Jones, of. Chanute, W. E. Ziegler, sustain each one, the court erred in not sub of Coffeyville, and Chester Stevens, of Indemitting them to the jury, and the new trial pendence, for appellant. Thomas E. Wagwas properly awarded.

staff, of Independence, for appellee. The judgment of the district court is affirmed. All the Justices concurring.

WEST, J. This is an appeal from a judg

ment for damages recovered by the plaintiff (97 Kan. 46)

for injuries sustained by being thrown from CHRISTIAN v. UNION TRACTION CO.*

one of the defendant's street cars. It was (No. 19796.)

alleged that the car gradually came to a stop (Supreme Court of Kansas. Jan. 8, 1916.)

at or near the west curb line of Eleventh

street, and that as the plaintiff attempted to (Syllabus by the Court.)

descend the steps when the car had become 1. APPEAL AND ERROR 1003—TRIAL One stationary the car, without warning, sud143-DIRECTION OF VERDICT — CONFLICTING I denly started, throwing her to the pavement EVIDENCE

Rules followed that a verdict supported and and injuring her. It was contended by the approved must stand, and that, when the evi-l defendant that the plaintiff negligently at

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Rehearing denied February 18, 1916.

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