HORTON, C. J. This action was commenced December 21, 1885, by R. H. Cooper against M. F. Brinkman and J. E. Clark, partners as Brinkman & Clark, to recover $457.37 upon certain promissory notes executed by them to Cooper. The notes were secured by a chattel mortgage. Several other parties were made defendants in the action, because of their interest in the property mortgaged. At the commencement of the action Jacob De Con was appointed receiver to take possession of the goods and chattels described in the mortgages, and also of all of the book-accounts and other property of Brinkman & Clark. He was directed to sell the goods at retail in the usual course of trade, and to apply the proceeds thereof, after the payment of all expenses and costs, upon the indebtedness of Brinkman & Clark, in accordance with the priorities of the chattel mortgages, viz.: (1) To M. Pettingill & Co.; (2) to Tootle, Hanna & Co.; (3) to Tootle, Hosea & Co.; (4) to Tootle, Sherman & Co.; (5) to Grabfield, Sickels & Co.; to Claflin, Allen & Co.; (7) to J. H. Boogers; (8) to Lieberman & Manheimer; (9) to R. S. McDonald & Co.; (10) to R. H. Cooper. At the time this order was granted, A. L. Redden appeared as attorney of R. H. Cooper; E. N. Smith and M. E. Gilgore appeared as attorneys of M. F. Brinkman; and the other creditors appeared by their attorneys A. L. L. Hamilton, C. A. Leland, H. W. Schumacher, and E. C. Carr. No exception seems to have been taken to the appointment of the receiver nor to the direction to the receiver as to the distribution of the proceeds of the mortgaged property. No answers were filed by any of the defendants. On May 8, 1886, M. Pettingill & Co., Tootle, Hanna & Co., Tootle, Hosea & Co., and J. H. Wear, Boogher & Co. filed their motion to require the receiver to file his report and pay from the proceeds in his hands according to the alleged priority of the chattel mortgages the following sums: First, $924.37, with interest, to Pettingill & Co.; $2,227, with interest, to Tootle, Hanna & Co.; and the balance, if any, to Tootle, Hosea & Co., Tootle, Sherman & Co., Grabfield, Sickels & Co., and Claflin, Allen & Co. On May 13, 1886, R. H. Cooper filed his motion requesting the court to direct the receiver to apply the money in his hands from the proceeds of the mortgaged property as follows: (1) To the payment of the costs of this action; (2) to the payment of said plaintiff's claim and the judgment of said plaintiff; (3) that the balance, if any, be paid as ordered by the court. All the matters came up for hearing and decision on May 28, 1886. The court found that after paying the compensation and expenses allowed the receiver there was in his hands to be applied upon the chattel mortgages, according to their priorities, $2,026.65. It directed $924.37 to be paid to Pettingill & Co.; next, that all the costs of the action be paid and the balance turned over to Messrs. Tootle, Hanna & Co., the court finding that there was $2.227.09, bearing interest from May 8, 1886, at 8 per cent. per annum, due to the latter firm from Brinkman & Clark. A verbal motion for a new trial was filed, but upon what grounds is not stated in the record; therefore, as this motion was not filed, or in writing, and as we cannot know what it contained, it cannot be considered. Douglass v. Insley, 34 Kan. 604, 9 Pac. Rep. 475; Clark v. Imbrie, 25 Kan. 424; Ervin v. Morris, 26 Kan. 664; Decker v. House, 30 Kan. 614, 1 Pac. Rep. 584. In the condition of the record all questions arising upon the trial alone must be excluded. The only error appearing was the failure of the trial court upon default of Brinkman & Clark to render judgment in favor of Cooper against them for the amount claimed in the petition. Civil Code, §§ 108, 128; Cole v. Hoeburg, 36 Kan. 263, 13 Pac. Rep. 275. We perceive no error as to the distribution of the proceeds in the hands of the receiver. The petition alleges that the chattel mortgage to secure the debt of Cooper was executed December 19, 1885, and filed the same day at 11:50 A. M. This mortgage recited that it was given subject to the chattel mortgages of Pettingill & Co., and the omnibus mortgage given to secure Tootle, Hanna & Co. and several other creditors, executed thereto. The petition also expressly states that the chattel mortgage to Pettingill & Co. was for $1,600 less about $800 paid thereon; and the omnibus mortgage to Tootle, Hanna & Co. and other creditors was for $4,776.84. The petition also admits that these mortgages were prior to the mortgage of Cooper; and that Brinkman & Clark owed $6,500 upon their several mortgages. There was no allegation in the petition that any of the prior mortgages were fraudulent, invalid, or worthless; but, on the other hand, the prayer of the petition was that the proceeds of the property of Brinkman & Clark be distributed to their creditors, as their interests and rights might appear. The order of distribution was in accordance with the facts stated and admitted by the petition. The orders and judgments of the district court will be affirmed as to all of the parties except M. F. Brinkman and J. E. Clark; and the cause is remanded, with direction to the court below to enter judgment in favor of Cooper against Brinkman & Clark upon the promissory notes set forth in the petition. The costs in this court will be taxed against Brinkman & Clark; but if they are unable to pay the same, the plaintiff in error will be liable therefor. All the other defendants in error will recover their costs from the plaintiff in error. All the justices concurring. (38 Kan. 480) HARLOW et ux. v. WARREN. (Supreme Court of Kansas. February 11, 1888.) CONTINUANCE-SICKNESS OF PARTY-AFFIDAVITS. Where an application is made for the continuance of the trial of a case to another term, upon the ground that the party applying therefor is prevented from attending the court on account of his sickness, and the application is supported, as to the sickness of the party, only by the certificate of a physician, and no affidavit is filed by the physician, or any other person having personal knowledge that the party is unable to attend court, held, that the ruling of the district court in refusing a continuance of the case will not be reversed. (Syllabus by the Court.) Error to district court, Green wood county; CHARLES B. GRAVES, Judge. T. L. Davis and R. C. Summers, for plaintiffs in error. D. B. Fuller, for defendant in error. HORTON, C. J. This was an action brought by S. L. Warren against Lewis and Carrie Harlow to recover certain land situated in Greenwood county, in this state, which was alleged to have been purchased by Lewis Harlow, with cattle intrusted to him by Warren. Judgment was rendered in favor of Warren and against Lewis and Carrie Harlow, as prayed for in the petition. The only question presented for our consideration is the alleged error of the trial court in refusing a continuance asked for by Lewis Harlow. Continuances are, to some extent, within the discretion of the trial court; and, unless it is shown that the court abused its discretion in granting or refusing a continuance, this court will not declare the ruling of the trial court, in such a case, erroneous. Hottenstein v. Conrad, 9 Kan. 436; Davis v. Wilson, 11 Kan. 74; Swenson v. Aultman, 14 Kan. 273. The issues in the case were made up on June 6, 1885. At the August term of the court for 1885 the cause was continued upon the application of Lewis Harlow, who then resided within a few miles of the court-house, on account of his alleged sudden illness. His application was made after the case had been assigned for trial, witnesses subpoenaed and Warren had come all the way from the state of Vermont to be present at the trial. On the 16th day of December, 1885, at the regular term of the court for that month, and long after the cause had been assigned for trial, and after Warren had come again all the way from the state of Vermont to attend the trial, the counsel for Lewis Harlow filed his application for a continuance. This was supported by the following certificate: "ORWELL, HODGEMAN Co., KAS., Dec. 12, 1885. "This is to certify that Lewis Harlow, on account of physical disability, is unable to travel, and is under treatment by me. J. B. WEST, M. D." Counsel also filed his affidavit that he received a letter from Lewis Harlow on the evening of December 15, 1885, informing him he was sick, and that, because of his sickness, he was unable to be present at the trial of the case. The affidavit further stated that the testimony of Lewis Harlow was material and essential to a proper defense of the action, and that counsel could not try the cause without his presence. Affidavits were also filed from two parties that they knew J. B. West, and that he was a reputable citizen and physician, residing at Orwell in Hodgeman county, in this state. No affidavit was filed, or any oral testimony presented from any person having personal knowledge that Lewis Harlow was sick and unable to attend the trial. In this condition of the case we perceive no error in the ruling of the trial court. We cannot treat the certificate of the physician as an affidavit. The counsel making the affidavit for continuance does not claim that he had any personal knowledge of the sickness of his client, and the other affidavits do not show that Harlow was sick or unable to travel. An affidavit should have been presented from Harlow, or from his physician, or from some other person having personal knowledge that Harlow was prevented from attending court by sickness, if he was in fact sick. We do not think the certificate of the physician can be accepted as an affidavit. The affidavits do not establish, from personal knowledge, the sickness or inability of Harlow to attend court. The judgment of the district court will be affirmed; all the justices concurring. (38 Kan. 420) DOCKING v. FRAZELL.1 (Supreme Court of Kansas. February 11, 1888.) 1. PERSONAL PROPERTY-HOTEL BUILDING MOVED ONTO LEASED PREMISES. A building occupied for a hotel, and moved by a tenant upon a vacant city lot which is held under a lease for a term of years, in which it is provided that at its expiration the lot shall be surrendered in the same condition it was in at the date of the lease, is personal property. 2. CHATTEL MORTGAGES-ON HOTEL BUILDING STANDING ON LEASED LOT. A chattel mortgage given upon such hotel building would be valid, and a foreclosure and sale thereunder would convey the property to the purchaser at such sale. (Syllabus by Holt, C.) Commissioners' decision. Error to district court, Clay county; E. HUTCHINSON, Judge. Action of forcible detainer brought by Robert Docking against J. A. D. Frazell, before a justice of the peace of Clay county. Judgment was rendered in favor of plaintiff, and defendant appealed to the district court. Judgment for the defendant was rendered in the district court, but was reversed by the supreme court, and the action remanded for a new trial, which resulted in another judgment for the defendant, and plaintiff again brings error. J. S. Walker, for plaintiff in error. C. M. Anthony, for defendant in error. HOLT, C. This case has been in this court before, (Docking v. Frazell, 34 Kan. 29, 7 Pac. Rep. 618,) when it was decided, upon the testimony brought here then, that the building in question, used as a hotel, was presumed to be real estate. Upon the retrial of the cause, after reversal here, the same question was again presented to the district court, but the testimony offered to establish whether it was real estate or personal property was much more voluminous in this trial than in the former one, and many of the doubts ex 1For opinion on first appeal, see 7 Pac. Rep. 618. pressed in the opinion of Mr. Justice VALENTINE were solved by the testimony presented. The plaintiff in errror, plaintiff below, complains of the judgment rendered against him for costs in his action for forcible entry and detainer, and claims that the court erred in several matters on the trial. We shall not notice his assignments of error specifically, but will simply determine whether the findings of fact were sufficient to authorize the conclusions of law and the judgment. The statement of this case in 34 Kan. is referred to as a part of the statement in this opinion. It is found by the court: (1) On the 27th of April, 1880, H. A. Keeler, being then the owner of lots 1 and 2 in block 43 of the Clay Center town-site in Clay county, Kansas, executed, acknowledged, and delivered to one A. S. Pierce, a lease of said lots for a term of five years, beginning May 1, 1880, and ending May 1, 1885. The premises were at that time vacant and unoccupied. In this lease it was agreed, among other things, that the lots should be occupied by buildings for business purposes, and that the buildings should be removed by the lessee at the end of the term. This lease was duly filed for record April 27, 1880, and recorded among the real estate records of Clay county. Immediately afterwards said Pierce placed upon lot 1 the building which was afterwards known as the "Eagle Hotel.” The building was moved on the lot from another lot in the same city. Afterwards, on August 14, 1880, H. S. Pierce executed, acknowledged, and delivered to Frank Piquerez a written instrument embodying an assignment of said lease as to a part of lot 1, 40 feet by 143 feet in size, on which the Eagle House stood. In this instrument it was stipulated that, at the end of the term of the lease from Keeler to Pierce, Piquerez should surrender the ground in the same condition it was in at the date of said lease. This instrument was, on the day of its date, duly recorded in the office of the register of deeds. Piquerez thereupon took possession of the premises and occupied the house, either alone or with his family, until about November, 1882, when he abandoned his family and left with the intention of going to California, and has never returned. (2) July 1, 1881, Frank Piquerez executed a chattel mortgage to Joseph Ruot, on said house and the furniture therein, to secure the payment of certain notes, described in the chattel mortgage, amounting to $2,000. This chattel mortgage was recorded in the office of the register of deeds of said county, July 27, 1881. On the 26th of May or July, 1882, Frank Piquerez executed another chattel mortgage to Joseph Ruot, on the same property, to secure the payment on certain notes therein described, amounting to $1,800. This chattel mortgage was duly recorded in the office of the register of deeds of said county, July 27, 1882. At the time said chattel mortgages were given Joseph Ruot was, and has ever since been, a resident of Pennsylvania. He knew of the existence of said chattel mortgages, but did not know their contents. Piquerez was indebted to him about $140, with interest; but he never had any of the notes described in either of the. chattel mortgages, and did not know that such notes were described in the mortgages until his deposition was taken in this action. (4) On October 26, 1882, Frank Piquerez became indebted to J. Christmas. On June 5, 1883, an action was commenced in the district court of Clay county by Christmas against Piquerez, to recover the amount of said indebtedness; an attachment was issued in the action and levied upon the house and lease interest in the lot as the property of Frank Piquerez. Christmas obtained judgment in that action against Piquerez for his said debt and costs; an order of sale was issued, the property advertised for sale, and sold as real estate on November 8, 1883, by the sheriff of Clay county to the plaintiff, Robert Docking. The sale was confirmed by the court, and on January 19, 1884, the sheriff's deed to Docking was duly executed, acknowledged, and recorded in the office of the register of deeds of said county. These findings are supported by the evidence. The decision of whether this building, occupied as a hotel, was real or personal property, determines v.17p.no.3-11 the rights of the parties to this action. The court, as a conclusion of law from the facts specially found, held it to be personal property. It is, and has been for several years, occupied as a residence, and used as an hotel; from that alone the presumption would be that it is real estate; but it is further found that the lot upon which it is situated is owned by one person and the building by another. The owner of the building, to be sure, has a leasehold estate in the land, but in the lease under which he held it is expressly stipulated that at its expiration any buildings that might be erected upon the lot should be removed. The plaintiff does not pretend to claim through any interest derived from the owner of the land upon which the hotel is situated. It is no question between the landlord and the tenant. He claims by virtue of a sheriff's sale upon an execution issued against defendant's vendor. If the hotel is personal property, the title had passed to defendant under the chattel mortgage of Piquerez, and plaintiff obtained no interest in it by the sale of the sheriff. We think it is personal property. There is no direct evidence tending to show in what manner the building was fixed to the freehold, unless it might be inferred that it was not very firmly and solidly attached from the fact that it was moved onto the lot, and was to be moved off when the lease expired. It is evident that the owner of the land, and those who had owned the building, treated it as personal property. One of the tests of whether a building is a fixture is, Did or did not the party placing the building upon the land intend to make it a permanent accession to the freehold? Perhaps this is as important as any criterion offered by the law. There can be no possible question in this action how the owners of the land, and those who had held under the lease, regarded this building; to them it was at all times personal property. "The clear tendency of modern authority seems to be to give preeminence to the question of intention to make the article a permanent accession to the freehold, and other tests seem to derive their chief value as evidence of such intentions." Ewell, Fixt. 22; McDonald v. Shephard, 25 Kan. 112; Eaves v. Estes, 10 Kan. 314; Iron Co. v. Black, 70 Me. 473; Morris v. . French, 106 Mass. 326; Yater v. Mullen, 24 Ind. 277. If it was personal property, Piquerez had the right to mortgage it to his brother-in-law, Ruot, or to give it to him outright, so far as the plaintiff in this action is concerned. These mortgages were given a long time before the debt of Piquerez to plaintiff was contracted, and he, as a subsequent creditor, certainly has no claim to this property. There is no testimony that would justify even an inference that these mortgages were given for the purpose of defrauding his creditors; the inference, if any, would be the reverse, as he placed it on record as notice to all with whom he might deal, that the property was incumbered. From the testimony brought here, we think the judgment of the court below was correct, and should be affirmed. PER CURIAM. It is so ordered; all the justices concurring. (38 Kan. 641) MARTIN, Governor, v. INGHAM. STATE ex rel. GETTY, County Attorney, v. MARTIN, Governor. 1. GOVERNOR-MINISTERIAL DUTIES-CONTROL BY MANDAMUS. Where purely ministerial duties are by statute imposed upon the governor, and such duties are only such as might be devolved upon any other officer or agent, the performance of such duties may be controlled by mandamus or injunction. 2. SAME-DUTIES IN ORGANIZATION OF NEW COUNTIES. The duties imposed upon the governor by the statutes, relating to the organization of new counties, are partially ministerial and partially not. 3. SAME-FRAUD IN CENSUS RETURNS-INJUNCTION. Where a petition for an injunction to restrain the governor from acting upon the return and report of the census taker, in proceedings instituted for the organization of a new county, alleges great fraud on the part of the census taker and others, but |