
    No. 22,844
    Missouri Pacific Railroad Company, Appellant, v. David Kohler et al., Appellees.
    
    OPINION DENYING A REHEARING.
    Appeal from Montgomery district court; JOSEPH W. Hol-DREN, judge.
    Opinion denying a rehearing filed December 18, 1920.
    (For original opinion of reversal, see 107 Kan. 673, 193 Pac. 323.)
    
      W. P. Waggoner, J. M. Challis, both of Atchison, and S. H. Piper, of Independence, for the appellant.
    
      A. M. Etchen, of Coffeyville, for the appellees.
   The opinion of the court was delivered by

Dawson, J.:

The petition for a rehearing assumes that the Bodley case, 67 Kan. 178, 72 Pac. 545, is overruled by the present decision. It was not necessary to overule this case, it being sufficient to distinguish it from the present case, and that, we think, we have clearly done. The appellee, however, does point out an inaccuracy in our statement of facts, where we said that no appeal was taken from the police-court judgment. There was an appeal to the district court, and the police-court judgment was sustained. But that judgment cannot control in this case. Either the matter should have been so thoroughly-presented to the district court that no such erroneous result would have transpired, or it should have been brought to this court for authoritative determination. Certainly the judgment in the police court, and in the district court, where Kohler paid a fine of ten dollars, did not determine the rights of the railway company. If Kohler was disposed to acquiesce in the-judgment of these courts he could have exercised the right reserved to him in his contract with the railway company — that of canceling that contract on thirty days’ notice. Since he. has never done this, he is bound by his contract.

The petition for a rehearing is denied.  