Volume 100 — Iowa Reports

— Hon. M. J. Wade, Judge. The defendant was accused of the crime of assault with the intent to commit murder, tried by jury, found guilty, and adj udged to be imprisoned in the state penitentiary at Anamosa, at hard labor, for the term of one year and eight months. From that judgment, he appeals.

— Hon. W. B. Quarton, Judge. The defendant was indicted for the crime of seduction, was convicted, and sentenced to the penitentiary for the term of two years, and adjudged to pay the costs of prosecution, from which sentence and judgment this appeal is prosecuted.

— ’Hon. C. D. Goldsmith, Judge. Action at law to recover damages for the negligent burning of a warehouse and its contents. Trial by jury. Verdict and judgment for the plaintiff. Defendants appeal.

— Hon. Scott M. Ladd, Judge. ' On tbe fifteenth day of November, 1893, the defendant was indicted on the complaint of A. H. Macomber, husband of Hilda Sophia Macomber, for the crime of adultery, alleged to have been committed on or about the sixth day of June, 1893, with said Hilda Sophia Macomber, the defendant then being a single man.

— Hon. T. F. Stevenson, Judge. These parties .were opposing candidates in the Fifth supervisoral district of Polk county, for the office of supervisor, at the general election in 1894. The board of canvassers declared said John Fisher elected, whereupon John P. Cook instituted proceedings to contest said election, and the court of contest found and declared in favor of John P. Cook, from which John Fisher appealed to the district court.

— Hon. H. Bank, Jr., Judge. Action to ^recover damages for wrongfully, wilfully, and maliciously landing the plaintiff and his family from a steamboat on an island in the Mississippi river. The defendants presented a motion to change the venue of the case to Scott county, the place of their residence. The motion was sustained. The plaintiff excepted to the ruling, and elected to stand on his exceptions, and the suit was dismissed, at plaintiff’s cost, and he appeals.

— Hon. Thomas E. Stevenson, Judge. The appeal in this case involves the validity of a contract alleged to have been made by Caroline E. Byers with L. M. Mann, receiver of the Highland Park Improvement Company, by which contract she alleges she was employed as a teacher by said receiver, and wrongfully discharged from said employment, in violation of said contract.

— Hon. W. A. Spurrier, Judge. . The defendant was indicted, tried, and convicted of an assault with, intent to commit murder upon Emma Clark, and sentenced to ten years’ imprisonment in the penitentiary. Prom this judgment the defendant appeals.

<p>Appeal from Pottawattamie District Court. — Hon. N. W. Maoy, Judge.</p> <p>Indictment for larceny. Yerdict of. guilty, and a judgment, from which the defendant appealed.—</p>

— Hon. W. D. Tisdale, Judge. The defendant was indicted for the crimp of endeavoring to incite, or procure, another to commit perjury The charge is as follows: “That said W, B, Waddle, on or about the sixth day of June, in the year of our Lord, one thousand eight hundred and ninety-three, in the county aforesaid, and state of Iowa, and on divers other times and days, did unlawfully and feloniously, intending to pervert the due course of law, did corruptly and maliciously…

— Hon. J. H. Applegate, Judge. The defendant was indicted for murder in the first degree, tried, found guilty of murder in the second degree, and appeals to this court.

— Hon. George W. Wakefield, Judge. This is a suit in equity to enjoin and restrain the collection of certain taxes levied upon the property of the plaintiffs to pay for the construction of a ditch. There was a decree dismissing the petition, and the plaintiffs appeal.

— Hon. A. R. Dewey, Judge. The defendant was convicted of the crime of larceny, sentenced to imprisonment for nine months in the county jail, and to pay a fine of one hundred dollars, and costs, and appeals.

— Hon. W. F. Conrad, Judge. March 14,1889, the office of the board of public works of the defendant city, was filled by the appointment of M. H. King, for the term of three years, and Martin Tuttle, for the term of two years. The city was organized under the annexation act in the spring of 1890, and on April 21, 1890, King and Tuttle relinquished the office.

— Hon. J. D. Gtipein, Judge. The plaintiff is father to the defendant. Plaintiff owns, and has owned since prior to 1881, a farm, consisting of one hundred and sixty acres of land, on which he owned stock and farming implements.

— Hon. Charles D. Goldsmith, Judge. Action in equity, to cancel a certain judgment, and to restrain the enforcement thereof. Decree was entered in favor of the plaintiff. Defendants appeal.

— Hon. A. J. McCrary, Judge. This is an appeal from an order of the district court approving and confirming a report made by the plaintiffs as executors of the last will and testament of k. L. Connable, deceased. The order of the court was excepted to by Edwin H. Connable, one of the devisees named in the will, and he appeals.

— Hon. Z. A. Church, Judge. Certiorari to the defendants, as members of the board of trustees of Boyer township in said county, to test the legality of the proceedings of the board in the consolidation of the roads of the township. Judgment for plaintiffs, and the defendants appealed.—

— Hon. M. J. Wade, Judge. On the fifth day of May, 1898, the defendant firm made a written order to the plaintiff company for a thresher, self-feeder, and band cutter, and a Perfection weigher, at the agreed price of eight hundred and twenty-five dollars, for which the plaintiff was to receive in exchange another thresher, stacker, weigher, and sieve'; the property so taken in exchange being valued at three hundred and seventy-five dollars.

— Hon. M. A. Roberts, Judge. This is a suit in equity to set aside and cancel a judgment rendered by confession in favor of the defendants, against the plaintiff. There was a full hearing on the merits, and a decree for the plaintiff. Defendants appeal.

— Hon. J. L. Husted, Judge. Plaintiffs bring this action in equity to cancel a certain tax deed, issued by the treasurer of Dubuque county, to the defendant, William Hintrager, and for an order requiring Paul Traut, treasurer, to sign a certain certificate of redemption from tax sales of the land covered by said deed.

— Hon. H. M. Towner, Judge. The defendant was indicted, tried and convicted of the crime of rape, committed upon the person of Myrtle Bristow, and he appealed from the sentence and judgment of the district court.

— Hon. James D. Smyth, Judge. Action at law upon a non-negotiable promissory note. There was a trial by jury, which resulted in a verdict for the defendant. The plaintiff appeals from a judgment on the verdict.

<p>Appeal from Calhoun District Court. — Hon. Z. A. Church, Judge.</p> <p>Action at law, for the conversion of certain property alleged to belong to plaintiff.» The court sustained a demurrer to the plaintiff’s petition, and plaintiff appeals.</p>

— Hon. S. H. Fairall, Judge. Action to recover the sum of five hundred dollars upon a fire insurance policy. Trial by jury. Verdict and judgment for the plaintiffs. Defendant appeals.

<p>Adverse Possession: color of title: Husband and wife. A quitclaim deed by a husband to his wife, of land held by him under a contract for its purchase, which, to her knowledge, had become subject to forfeiture because of his non-performance, is insufficient to vest her with color of title on which to rest a claim of adverse possession, based on husband and wife, going into pos session, as against the other party to the contract of purchase oi his successors, though she paid for the assignment made to him, with her separate property</p>

— Hon. W. A. Spurrier, Judge. The defendant and one James O’Brien were jointly indicted, tried, and convicted of the crime of burglary. Harris alone appeals.

— Hon. F. W. Eichelberger, Judge. ■ Defendant was indicted, tried, and convicted of the crime of cheating by false pretenses, and appeals to this court. An objection on the ground of incompetency is sufficient, and, it is not necessary that the party objecting should state the reasons of the objection. Greenleaf v. Dubuque & S. C. B. Co., 80 Iowa, 302.

— Hon. T. M. Gtberson, Judge. Action at law to recover for personal injuries alleged to bave been caused by negligence on the part of the defendant. At the conclusion of the evidence for the plaintiff, Hie court sustained a motion of the defendant for a verdict, and judgment for costs was rendered in its favor. The plaintiff appeals.

— Hon. J. C. Burk, Judge. . The plaintiff college is a corporation located in the city of Keokuk, in Lee county, this state. The defendants seven in number, are members of the board of medical examiners of the state, under appointment as provided by law.

— Hon. Scott M. Ladd, Judge. ' Action at law to recover for personal injuries alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment in favor of the plaintiff. The defendant appeals.

<p>Appeal from Folk District Court. — Hon. C. P. Holmes, Judge.</p> <p>The defendants, Robert Sylvanus Hathaway and William Jacob Palmer, were convicted of the crime of larceny, and from the judgment, which required them to be imprisoned in the penitentiary at Fort Madison for a term of years, they appeal.</p>

<p>1 Criminal Law: identification of defendant by standing up. During the trial oí a criminal ease, the defendant’s brother, who .greatly resembled him, took a seat by his side, as a test of identity. At the request of the attorney for the state, the judge ordered the defendant to rise for identification, against the objection of his attorney. The prosecuting witness then identified the one who stood up as the one who committed the offense charged. U Id, that the action of the court in compelling the defendant to rise was not error, as compelling him to criminate himself. Neither was it an abuse of discretion to refuse letting defendant make the test attempted by him.</p> <p>3 Evidence: connecting defendant. On a trial for robbery, it appeared that the prosecuting witness had gone to a pump near the railroad track, to draw water for his stock; that two colored men had come up and asked if they should not fill the trough. Witness gave permission, and started across the track. When part way across, he looked back, and saw the two men just behind. A moment later, he was struck on the head, knocked insensible, and robbed. He identified the defendant as one of the tfro men, and three other witnesses, who saw the two colored men talking to witness at the pump, also identified defendant as one of them. Held, that the evidence was sufficient to connect defendant with the crime.</p> <p>3 4 Included offenses : Charge on. On a trial for robbery, whére there was no evidence tending to show that the offense might have been larceny, it was not error to fail to instruct as to such offense.</p> <p>4 Objection Below: Assignment of errors. An assignment of errors based on the instruction of the trial court, will not be considered unless exception was properly taken below.</p>

<p>Appeal from Monroe District Court. — Hon. Robert Sloan, Judge.</p> <p>Action at law, to recover the value of oats owned by the plaintiffs, alleged to have been destroyed by reason of negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiffs. The defendant appeals.</p>

<p>Appeal from Appanoose District Court. — Hon. T. M. Fee, Judge.</p> <p>Action in equity for the appointment of a receiver, and for other relief. A demurrer to the petition was sustained, and, the plaintiffs refusing to plead further, judgment was rendered in favor of the defendants for costs. The plaintiffs appeal. —</p>

<p>3 Construction of Lease: evidence: Contracts. Under a lease of a building which Axes a certain rent and provides that the rent shall be a lesser sum until the landlord shall cause the premises to be heated by steam, there is no obligation to furnish the steam, except as a condition precedent to recovering the higher rental. Nothing is required, at all events, except sufficient heat to make the premises comfortable, and the burden of showing that this was not ' furnished, is on lessee.</p> <p>3 Agkeiiment to furnish heat: Evidence. Defendants leased a portion of a building for use as a lodging house, the building to be heated by steam, by the lessor. Experts testified that the radiation provided by the lessor was sufficient to keep the rooms comfortable for sleeping purposes, and it appeared that other tenants in the same building received sufficient heat. Held, that the evidence justified the finding that the lessor had substantially complied with the obligation to heat the leased premises.</p> <p>1 2 Law and Equity: consolidation: Waiver by Pleading. An action at law and a suit in equity for the collection of rent were consolidated as a cause in equity, with a proviso that the consolidation should not prejudice the defendants’ right to a jury trial upon the matters set out in his answer to the law action. A substituted petition asking equitable relief in the law action was filed, and after the consolidation, defendants filed an amended and substituted counter-claim, triable in equity. Held, that it was not error to refuse to permit the trial of the issues by the jury. Where an issue ordinarily triable at law, is presented by answer to an action properly commenced in equity, plaintiff is entitled to have it tried, as in equity.</p>

<p>1 Manslaughter: jury question. It appeared that defendant took up some posts.set by deceased for a division fence, on what deceased believed was the line between their farms, but which defendant' claimed was not such line; that soon afterward, as defendant was driving his seeder over the line, and on that land claimed by deceased, the latter stopped it; that defendant went where deceased was; that, during a fight which ensued, defendant stabbed deceased with a pocketknife, killing him; that the trouble about the division line had existed about a year; that defendant had been acquitted of trespass, for which deceased had him arrested; that defendant was a much smaller and younger man than deceased; and that, as defendant knew, a few days before the fight, deceased put his shotgun in his wagon, and drove to the disputed line. There was evidence that, before such dispute arose, deceased carried a revolver, that he was quarrelsome, and in the habit of making threats of violence to others. Defendant knew his character. He testified that, after he was acquitted of trespass, he was told that deceased said that, if he could not keep him off his land by law, he would with a shotgun; that he stabbed him because of threats that deceased had made, and did not know but that he had a weapon of some kind in his pocket, and he supposed that he would be killed or seriously hurt if he did not defend himself; that he did not intend to kill deceased, and aimed to strike him in the leg, somewhere; that, while he was getting out his knife, deceased was following him up; that he had his knife in his right hand, and was warding off the blows with his left; and that, if he had run, he might have got away. Deceased had no weapon. jBeld, that the evidence supported a verdict for manslaughter.</p> <p>2 Rule as to self defense. The killing of an assailant is excusable on the ground of self defense, only, when it is, or reasonably appears to be, the only means of saving one’s own life or preventing great bodily injury, and, if the danger can be avoided by retreat, or otherwise, the killing is not excusable.</p>

<p>2 Assignment of Judgment: what passes by. Where a landlord’s attachment is issued, and the property of the tenant is seized, and judgment is rendered for the landlord, on assignment of the judgment, all right of the judgment creditor to recover damages against the sheriff for negligence in the care of the property seized, passes to the assignee.</p> <p>6 Care of Attached Property: direction op plaintive. Where a sheriff, levying an attachment, delivered the property to a receiptor, by direction of the plaintiff in the attachment, he is not liable for the negligence of the receiptor.</p> <p>3 7 Direction oe attorney: “Agreement by attorney” defined. An order by an attorney to a sheriff to turn over property attached, to a third person for safe keeping, is not an agreement, within Code, section 313, providing that no evidence of an agreement of an attorney shall be received except the statement of the attorney, or his written agreement, or an entry thereof on the records of the court.</p> <p>1 3 i 5 Return of Officer: oonclustveness: Parol evidence. Where a sheriff, to his return on a writ issued in a landlord’s attachment, annexed a receipt of a third person for the property attached, and, also recited that he held the property subject to the order of the court, he can show by parol that the property was delivered to such third person by the direction of the attorney for the plaintiff in the attachment. The return was not required to show that the property had been delivered to a third person on the direction of plaintiff, and as to matters not authorized to be returned, the return is not conclusive.</p> <p>*Notb. — This case was held out on re-hearing and will appear in a later Iowa report. — Repobieb.</p>

<p>Appeal from Franklin District Court. — -Hon. D. R. Hindman, Judge.</p> <p>Suit in equity to foreclose a chattel mortgage upon a stock of goods and merchandise. There was a hearing on the merits, and a decree for the defendants. Plaintiff appeals.</p>

<p>Deed from Parent: fraud and undue influence: Evidence. A deed made by a father and mother to their daughter, of property of the value of six thousand to seven thousand dollars, on a consideration approximating three thousand dollars, and a further agreement to support the grantors, who were both over seventy years old, during the remainder of their lives, will not be set aside at the suit of another heir of the grantors, where the evidence fails to establish fraud or undue influence on the part of the grantee, or the incapacity of the grantors.</p>

<p>Trusts. An assignor of a judgment of foreclosure cannot, under McClain’s Code, section 8105, requiring all declarations of trusts relating to real property to be executed in the same manner as deeds, establish a resulting trust in the property, by parol proof of an agreement by the assignee of the judgment, to hold it for him.</p> <p>Same: Parol evidence. Parol evidence is inadmissible to >show that the assignee of a decree of foreclosure, under a written assignment absolute on its face, agreed to buy in the property on the sale under the decree, and hold it for the assignee. Compare Patterson v. Mills, 69 Iowa, 755.</p>

— Hon. F. W. Eiohelberger, Judge. Action for a specific performance of a contract to convey real estate. Decree for plaintiff, and the defendants appealed.

— Hon. L. E. Fellows, Judge. Action to recover upon a contract, whereby plaintiff agreed to furnish and place a monument, as specified, for the defendants, in the cemetery at Council Hill, Iowa, for three hundred dollars. Defendant’s admit the contract, and that a monument was furnished and placed, but deny that it is such as is called for by the contract. Verdict and judgment were rendered in favor of the plaintiff. Defendants appeal.—

— Hon. D. Ryan, Judge. Joseph Jones, the father of the appellant, Joseph A. Jones, on November 4, 1893, executed to appellee, Lofland, trustee, a chattel mortgage on his personalty to secure an indebtedness to appellant, the Oskaloosa National Bank, also a claimed indebtedness of two thousand five hundred dollars on a note to his' son, Joseph A. Jones. At the time of the execution of this mortgage, Joseph Jones was insolvent.

— Hon. B. P. Birdsall, Judge. Action in equity to cancel a certain judgment against plaintiff in favor of defendant Worthington, and a levy and sale of certain real estate under an execution issued thereon, and to quiet the title to said real estate in the plaintiff. Decree was rendered in favor of the plaintiff. Defendants appealed .

— Hon. A. R. Dewey, Judge. This is a suit in equity, by which the plaintiff seeks to enjoin the defendant district from appropriating the proceeds of certain schoolhouse bonds to erect a school building on any other location than upon the same site which has heretofore been used for schoolhouse purposes.

— Hon. D. R. Hindman, Judge. Suit in equity to establish and foreclose a mechanic’s lien against the property of Ella F. Swan, for lumber and building materials sold and delivered. Ella F. Swan, in answer, denied that she ever made or authorized any contract for the purchase of lumber of plaintiffs, and states that she had no knowledge that any material of plaintiffs went into the house which was built on a certain lot owned by her.

<p>1 2 Contract with Teacher: approval by president: Estoppel. Code section. 1753, provides that a sub-director of a school board, under the rules of the board, may contract for employment of a teacher, and that the contract shall be approved by the president and reported to the board. Held, that where a contract was made with a teacher, and signed by a director, who was, in fact, at the time, president of the board of directors, and filed with the secretary, his failure to approve the contract as president, and file it with the board of directors, did not render the contract invalid.</p> <p>3 Same: Subsequent change of authority to employ. A school board authorized its president to employ plaintiff as teacher for the “winter term.” No provision was made as to what number of weeks constituted such term. The president employed plaintiff for the Verm of nine months. Held, that a subsequent action of the board, whereby it attempted to correct the record, by stating that the board of directors employed teachers for six months only, and that the president was authorized to close contracts for “six months only, — the winter term,” did not affect the contract entered into with plaintiff; assuming, even, that the teacher would be bound by resolutions of the board, of which she had no actual knowledge.</p> <p>4 Discharge of teacher: Hearing. Under Code, section 1734, a school teacher cannot be discharged before the expiration of her term, without an opportunity to be heard.</p>

<p>Defective Street: negligence of city. Where, on the breaking of a water pipe, a plumber is employed by a lot owner to repair it, and makes an excavation in the street without any permit from the city, and the officers of the city, have no actual notice of the excavation, and a person, at about twilight, drives into the excavation, while the laborer has necessarily absented himself from the work, for a few minutes, the city is not liable.</p>

— Hon. J. H Apple-gate, Judge. Action for personal injuries. Yerdict and judgment for plaintiff, and the defendant appealed.—

— Hon. John C. Sherwin, Judge. The defendant was accused of the crime of assault and battery. He was tried before the mayor of the town of Allison, and was convicted. He appealed to the district court, where the appeal was dismissed, and the defendant was discharged. The state appeals.—

Z. A. Church, Judge. Action at law, to recover damages for being ejected from one of defendant’s passenger trains. At the conclusion of tbe evidence on bebalf of plaintiff, the court sustained defendant’s motion for a verdict, and rendered judgment for the defendant. Plaintiff appeals.

— Hon. George W. Wakefield, Judge. Action to recover upon a contract in writing. Defendant demurred to the petition, which demurrer was overruled; and, defendant electing to stand thereon, judgment was rendered against him, from'which he appeals.

— Hon. D. Ryan, Judge. Plaintiff’s suit is brought' on a promissary note for five hundred dollars, drawing six per cent, interest, and dated March 3, 1893. It is due January 1, 1894.

<p>1 Boarding Moving Train: violation ok state law: Rules of railroad. Under the statutes of Illinois (Hurd’s Revised Statutes 1891, chapter 114, section 79), forbidding any person to board a moving train, except in compliance with law, or by permission, under the lawful rules and regulations of the company, a person injured while attempting to board a moving train within the state of Illinois, cannot recover therefor, in Iowa, unless it appears that he was acting in compliance with law, or by permission, under the lawful rules of the company.</p> <p>3 Burden ok proof. Where such attempt was made by permission, or direction, of the conductor of the train, the burden is on the plaintiff to show that the permission, or direction, relied on was in accordance with the rales and regulations of the company.</p> <p>2 Court and jury. One whose injuries are the proximate result of his violation of a statute is, as a matter of law, in Iowa, guilty of contributory negligence precluding recovery,for the. negligence of another, which contributed to such injuries.</p>

— Hon. D. Ryan, Judge. This is a proceeding -by certiorari. Plaintiffs, in their petition filed in the district court, averred that the defendants, the board of supervisors and auditor of the county of Keokuk, had exceeded their jurisdiction, in that they failed to put the names of the owners of the land through which the highway passed, in the published notice of the filing of the petition to vacate the road in controversy.

— Hon. E. E. Cooley, Judge. Suit in' equity to set aside a conveyance of real estate, made by John Harris to the defendant, and to subject the property to payment of a debt due to the plaintiff from Harris, and for other relief. There was a decree for the defendant, and plaintiff appeals.—

- — Hon. W. P. Beannan, Judge. This is an action of replevin for the possession of a cream separator.

— Hon. Henry Bank, Jr., Judge. This is an action for damages arising from the sale of intoxicating liquors to one Edward E. Roberts, a son of plaintiff. It is alleged that said sales caused said Edward E. Roberts to become intoxicated, by reason of which he was run over and killed. The petition contains other necessay allegations. Plaintiff, on September 4, 1894, demanded a default against the defendants, which was refused. Plaintiff excepted to said ruling, and appeals.

— Hon. W. A. Hoyt, Judge. Action to quiet title and redeem from a tax sale of land. Judgment for defendants, and the plaintiff appealed.

— .Hon. Erank W. Eichelberuer, Judge. This is a proceeding to vacate a certain liquor injunction decree rendered by the district court of Appanoose county on the fourteenth day of May, 1895, in an action wherein the state was plaintiff, and the plaintiff herein and one William Wilson were defendants, on the grounds: (1) That the decree was irregularly obtained; (2) that it was obtained through fraud practiced by the successful party in obtaining the decree; (8) for…

Court. — Hon. J. H. Henderson, Judge. Action for the recovery of specific personal property. Verdict and judgment for defendant, and the plaintiff appealed.

— Hon. Bobert Sloan, Judge. February 17, 1883, Aaron and William Hicks, being then indebted to plaintiff and others, conveyed to the defendant eight hundred and thirty-five acres of land, and he entered into possession of the same. Suits were brought by creditors of the Hickses, and the land attached, and judgments were entered ordering the sale of the same. Plaintiff’s judgment was rendered April 17,1883, and a judgment in favor of one Casaday, April 19, 1883.

— Hon. S. H. Fair ail, Judge. This action at law was begun April 16, 1892, to recover upon two policies of insurance against loss by fire, issued by the defendant. One is to . the plaintiff for seven hundred and fifty dollars, on a stock of agricultural implements and goods contained in a certain store building in Williamsburg, Iowa, and the other to D. J. O'Leary for two hundred and sixty dollars on said building, which last-named policy has been assigned to the plaintiffs.

<p>1 Insurance: household furniture defined. .In an insurance policy, the term “household furniture, useful and ornamental,” with the added term “family stores,” includes books and games, writing ■ materials, child’s swing, and child’s walker.</p> <p>3 Examination of assured: Fraud. Under a provision of an insurance policy which requires the assured to submit to an examination under bath, misstatements of fact made by him on the examination after a loss, do not avoid the policy, unless the insured knew them to be false, and made them with a fradulent intent.</p> <p>4 Same. Where an insurance policy, by its terms, covers household furniture and musical instruments in a certain house, and contains no limitation as to ownership which would invalidate a claim for a piano owned by the wife of the assured, a claim by the assured for its loss, is no fraud on the insurer, though there may have been a misstatement as to the ownership.</p> <p>5 Market value. Where a witness testified that a table was worth twelve dollars at the time of the loss, it will be presumed that the market value at that time was meant, where the instructions fixed the measure of recovery at the reasonable market value of the property.</p> <p>2 ■Instructions: construed together. An instruction, which, in briefly summing up the facts plaintiff must establish in order to recover a loss under a fire insurance policy, fails to require that the fire must have been “without his fault,” is not erroneous, where this requirement has been Stated in a preceding instruction, and there is no request to have the objectionable instruction made clearer.</p>

— Hon. M. J. Wade. Judge. ■Ab'fioN in equity to determine the interest of the several parties in lots 1, 2, and 8, block 51, in Iowa City, belonging to the estate of John C. Hormel, a resident of Iowa, who died at Iowa City, testate, April 13, 1892. All the defendants except the wife and children of F. C. Hormel, deceased, appeal from the decree ren4ered.

° M. A. Eoberts, Judge. Action at law to recover the contract price of certain furniture manufactured and delivered to the defendants. Defense, that the furniture did not comply with the terms of the contract, and a counterclaim for damages. Verdict and judgment for plaintiffs. Defendants appeal.

— Hon. George W. Wakefield, Judge. Action at law to recover damages for injuries to the person of the plaintiff, and to a buggy or spring wagon, which injuries are alleged to have been caused by the unlawful and negligent acts of the defendant. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals. — •

— Hon. W. F. Conrad, Judge. On February 19, 1898, the defendant executed and delivered to William Beezley, of Des Moines, Iowa, a policy of insurance upon Ms life, containing this prevision: “And in case of tbe death of said party while in good standing to participate in the mortuary fund of the association to the amount of the guarantee note, less the balance, if any, due the company for the current year’s insurance, said benefit to be paid at the home office, in Des…

— Hon. W. A. Spurrier, Judge. Action at law to recover damages for personal injuries sustained by plaintiff while employed by defendant in its mill. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. C. P. Holmes, Judge. This is an action' brought in Polk county Iowa, upon a judgment rendered in favor of the plaintiff in tbe circuit court of Johnson county, Missouri. The defendant, in its answer, admits that it is a corporation organized under the laws of the state of Iowa, and denies all other allegations of the petition.

&emdash;Hon. W. H. Ted-ford, Judge. Action at law to recover an amount alleged to be due for lumber sold and delivered to the defendants. There was a trial by jury, and a verdict and judgment against the defendants. The plaintiff appeals,&emdash;

— Hon. A. J. House, Judge. Action in equity to set aside an alleged conveyance of real estate, and to quiet in plaintiff the title to the property described in the conveyance. There was a hearing on the merits, and .a decree in favor of the defendants, Adelia O’Connor, Fergus O’Connor, and Mary O’Connor. The plaintiff appeals.

— Hon. Ben. P. Birdsall, Judge. Action at law to recover an amount alleged to be due on a promissory note. There was a trial by jury, and a verdict and judgment for the defendants. The plaintiff appeals.

— Hon. J. H. Apple-gate, Judge. Action at law to recover damages for personal injuries alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict for the plaintiff in the sum of fifty dollars. Special findings wer~ returned by the jury, upon which the court, on the motion of the defendant, rendered judgment in its favor for costs. The plaintiff appeals.

— Hon. W. F. Conrad, Judge. This action is against Polk county and its board of supervisors and treasurer, to recover five hundred and fourteen dollars and eighty-eight cents, taxes alleged to have been erroneously exacted from, and paid by, the plaintiff. By consent of parties the case was transferred to and tried in equity, and will be so considered on this appeal. Decree and judgment was entered against the plaintiff, from which she appeals.

— Hon. E. E. Cooley, Judge. The defendant is charged with the murder of George Wemett. He was tried, found guilty, and sentenced to be imprisoned for life in the state penitentiary, and appeals.

— Hon. A. J. House, Judge. . Proceedings in equity to establish, a claim against the estate of George Dahling, deceased. The executrix demurred to the petition, and the demurrer was sustained, and judgment rendered for the defendant. Plaintiff appeals.

— Hón. T. M. GtbersoN, Judge. The original- notice was served November 23, 1894, requiring defendants to appear at the December term, beginning December 8. At the following term, judgment by default was entered, and thereafter a motion to set aside such judgment was overruled, and defendants appeal.

— Hon. J. J. Tolerton, Judge. Action to enforce the performance of a contract to convey land. Decree for plaintiff, and the defendant appealed.

— Hon. A. S. v Blair, Judge. Action of forcible entry and detainer. A trial by jury was had in justice’s court, which resulted in a verdict for the defendant, and a judgment in her favor for costs. An appeal was taken to the district court of Black Hawk county. In that court the plaintiffs struck from their petition certain averments, and the defendant filed a demurrer to the petition as thus amended.

— Hon. A. N. Hobson, Judge. Action in equity for the cancellation of a chattel mortgage alleged to be fraudulent, and to have established claims of the plaintiffs against the mortgaged property. After a hearing on the merits, the district court dismissed the petition, and rendered judgment in favor of the defendants for costs. The plaintiffs appeal.

James D. Smyth, Judge. This is an action at law, aided by attachment, originally commenced against L. Seuffert, to recover the sum of two thousand six hundred and fifty-five dollars, claimed to be due plaintiff for flour and feed sold and delivered. The defendant answered, admitting the claim, and pleading a counter-claim against the plaintiff and sureties upon the attachment bond for the wrongful suing out of the writ.

— Hon. P. W. Burr, Judge. In March, 1885, the defendant in this suit obtained a judgment against the plaintiffs herein, on their joint promissory note, for seventy-six dollars and twenty cents, with costs and attorney’s fees. This action is to set aside such judgment. It appears from the petition in this case that 0.

— Hon. B. P. Birds all, Judge. This is an action to recover a commission for tbe sale of real estate. There was a verdict and judgment for the plaintiffs, and defendants appeal.—

— Hon. B. P. Birds all, Judge. Action at law to recover damages for alleged breaches of warranty in the sale of personal property, and to recover actual and exemplary damages for the wrongful conversion of personal property, There was a trial by jury, and a verdict and judgment for the plaintiffs. The defendant appeals.

— Hon. Walter I. Smith, Judge. Action in equity to recover judgment on six promissory notes executed by the defendant to the plaintiff, and for a decree foreclosing a chattel mortgage on “one Aultman & Taylor separator complete, with the straw stacker, belts, and all fixtures with or belonging to the same; one truck wagon under the same; also, one Aultman & Taylor Eureka engine complete; also, one tank wagon complete.” Defendants answered that the notes sued upon were given…

— Hon. A. B. Thornell, Judge. Suit on two notes, one of two hundred dollars and the other of four hundred and sixty-five dollars. Defendant Brewer admits the execution of the two hundred dollar note as surety, but says that he was released therefrom by plaintiff, in consideration of his satisfaction of a mortgage held by him on the property of the other defendant, Bamsey.

<p>Practice: refusal to permit amendment in trial. Where the complaint in an action on a subscription sets out a copy of the instrument and the answer admits the signing of “a paper similar to the one set out in the petition, ” but states that defendant has no knowledge as to whether the one set out is the one signed, and plaintiff thereafter puts in evidence the original subscription list signed by defendant, it was error to refuse to allow defendant to amend the answer by denying that it signed the alleged subscription paper, or that the signature thereon is its signature, on the ground that the original answer admitted such signature, though the proposed amended answer did not deny that the paper was not executed “for” defendant.</p>

— Hon. S. M. Weaver, Judge. Action in equity to set aside deeds on the ground of fraud and a want of consideration; also, an action to recover certain notes, or their proceeds. Trial to court, and decree for plaintiff against both defendants. Defendant Jennie L. Allen appeals.

D. Ryan, Judge. Originally, this was an action at law to recover damages from defendant for certain false and fraudulent representations made by him with reference to some Nebraska land, which he exchanged with plaintiff for some land in Iowa.

— Hon. A. J. McCrary, Judge. This appeal is by the executors of the last will of A. L. Connable, deceased, from a ruling sustaining an exception to their report, made by Albert E. Connable, one of the devisees.

— Hon. John C. Sherwin, Judge. • Action in equity to establish a lien on personal property. There was a hearing on the merits, and a decree which was in part in favor of each party, and both appeal, the defendant being the appellant.—

— Hon. A. Van Wagenen, Judge. Action at law commenced against the defendants, Walters Bros., to recover an amount alleged to be due from them for corn sold and delivered.

— Hon. Robert Sloan, Judge. This action is against C. 0. Taylor, the board of supervisors of Wapello county, and 0. P. Bizer, F. J. Baum, and Norman Reno, members of said board. It is in equity, to recover from said Taylor one hundred and eight dollars and thirty-four cents, with interest, taxes paid by said Taylor to the county for the plaintiff, and alleged to have been illegally refunded and paid back to said Taylor.

— Hon. M. J. Wade, Judge. Suit in equity to set aside and cancel a deed made by one Thomas Brady, in his lifetime, to the defendants. It is claimed that Brady was weak and unsound of mind at the time the conveyance was made, and that the defendants procured the execution and delivery thereof by fraud and undue influence. The court dismissed the plaintiff’s petition, and she appeals.

— Hon. A. S. Blair, Judge. Action at law to recover damages for an alleged libel, published by defendant of and concerning the plaintiff. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— Hon. A. N. Hob-son, Judge. This is an action in equity to' reform a deed by correcting a description so that it will express the real intent of the parties to the conveyance. In 1877, the county purchased of Phoebe and Ellen Cordon, the then owners of the land, a piece of ground for a public highway. A mistake was made in describing the land purchased. The land in fact purchased, was fenced out by the grantors, and set apart for highway purposes.

<p>1 Handwriting Expert. A person whose business for fifteen years required him frequently to make comparisons of handwritings, is competent to testify as an expert in regard thereto, though he testifies that he is not an expert, in the sense of making it his busness.</p> <p>2 Books of Account: parol variance. Books of account are not the best evidence, so as to render inadmissible oral testimony as to payments credited therein, and their application.</p>

- — Hon. George . W. Wakeeield, Judge. Plaintiff brings suit upon a check for one hundred dollars, which was drawn by the defendants, Rowley & Driggs, upon the defendant, the Iowa Savings Bank, and delivered to one Ball, who procured the same to be cashed at plaintiff’s bank. It is alleged that the defendant, the savings bank, refused payment, though at the time having in its possession money of the drawers sufficient to pay the same.

<p>Appeal from Dallas District Court. — Hon. J. H. Apple- ' - - • ■ gate, Judge.</p> <p>Action of replevin. Trial to a jury. Verdict for plaintiffs, and defendant appeals.</p>

— Hon. Gr. W. Paine, Judge. Action for foreclosure of chattel mortgage. Defendant Jordan, in a cross-petition, asks that his chattel mortgage be delared superior. Decree for plaintiff, and defendant appeals.

— Hon. P. W. Burr, Judge. Action at law to recover damages for an alleged assault and battery. Trial to a jury. Yerdict and judgment for plaintiff, and defendant appeals.—

— Hon. Lot Thomas, Judge. Action in equity to redeem land from tax sale, and for general equitable relief. There was a hearing on the merits, and a decree in favor of the defendants. The plaintiffs appeal.

— Hon. Walter I. Smith, Judge. Action in equity to recover an amount alleged to be due on a promissory note, and to foreclose a mortgage given to secure its payment. The defendants admitted giving the note and mortgage, but pleaded payment and other defenses. A referee was appointed to take the evidence and make a report. He did so, but on the motion of the plaintiff his report was stricken from the files, and the defendants appeal from that order.

— Hon. William P. Wolf, Judge. On the evening of March 10,1894, in passing along the east side of Third street east, in Cedar Rapids, at its intersection with the alley between First and Second avenues, the plaintiff fell, and was injured. From the street walk, which was high above grade, to the paving in the alley, there was a slanting apron, with cleats, the upper end being about six inches below the walk.

— Hon. P. W. Burr, Judge. Appeal by tbe plaintiff from a judgment rendered• against her for costs “because of want of petition.”—

— Hon. Geo. W. Wakefield, Judge. The defendant company is the owner of what is known as the “Troy Building,” in Sioux City, Iowa. In that building was the office of Bradstreet Company Commercial Agency, and Albert Hanson was in its employ about the eighteenth day of March, 1892. The office of the agency was on the third floor of the building, and in the building were two elevators, known as the east and the west elevator, respectively.

— Hon. A. N. Hobson, Judge. Action at law to recover damages for stock killed on defendant’s right of way, at a place where, it is claimed, defendant had a right to fence. At the conclusion of the evidence, the court directed a verdict for defendant, and plaintiff appeals.

— Hon. Lot Thomas, Judge. Action upon two promissory notes. Jury waived. Trial to the court. Judgment against plaintiff for the costs. Plaintiff appeals.

— Hon. D. Ryan, Judge. Action at law to recover for the use and occupation of a certain barn. Defense, a general denial and a plea of estoppel. Trial to a jury, verdict and judgment for defendants, and plaintiff appeals.

— Hon. P.B. Wolee, Judge. Action to recover for personal injuries received by the plaintiff while alighting from one of the defendant’s passenger trains, upon which he was a passenger. Yerdict and judgment for six hundred and fifty dollars in favor of the plaintiff. Defendant appeals.—

— Hon. Lot Thomas, Judge. The parties, Wilson & Riddick, entered into a written agreement for the exchange of real estate, the plaintiff to pay the difference in values. Deeds were to be placed in escrow to await the completion of the transaction. Plaintiff’s deed was placed in the First National Bank of Storm Lake, which bank is a party defendant.

— Hon. John F. Oliver, Judge. Action to recover of defendant the amount of a certain promissory note and book account due and owing the plaintiff from one Mathew Neisus, deceased. Plaintiff alleges that the defendant orally promised and agreed to pay the same, in consideration of the use of the property left by the decedent. The defendant denies the promise, and says that, if any was made, it was within the statute of frauds, and is not binding upon him.

— Hon. W. B. Quaeton, Judge. Action in equity to restrain the defendants from using a pier in Lake Okoboji, claimed by the plaintiff. There was a hearing on the merits, and a decree in favor of the plaintiff. The defendants appeal.—

— Hon. George W. Wakefield, Judge. Action in equity to recover the amount due on a promissory note, and for the foreclosure of a mortgage given to secure its payment. Judgment was rendered by' default against the defendant, F. C. Swan. The judgment and default were set aside on his application, and' he filed an answer, to which the plaintiff demurred, and the demurrer was overruled.

— Hon. W. E. Green, Judge. Action for the recovery of specific personal property. Judgment for intervener, and the plaintiffs appealed.

— Hon. Walter I. Smith, Judge. Appeal from an order of the district court sustaining plaintiff’s motion to set aside the verdict rendered in favor of the defendant, and granting a new trial.

— Hon. George W. Wakeeiele, Judge. Action at law to recover damages for personal injuries sustained by plaintiff in being run over by a switch engine in defendant’s yards, in the city of Sioux City. Trial to a jury. Verdict and judgment for the plaintiff, and the defendant appeals.

— Hon. A. B. Thornell, Judge. This appeal is from an order granting to the defendant temporary . alimony in a suit for divorce. Plaintiff appeals.

— Hon. J. H. Henderson, Judge. Suit in equity to enjoin the defendant from maintaining a tile drain connecting with a drain which passes through the land of one Bobinson, and onto the land of the plaintiff. There was a decree dismissing the plaintiff’s petition, and he appeals.

— Hon. James D. Smythe, Judge. Action in equity for the foreclosure of a mortgage for the payment of an amount' alleged to be due on a promissory note it was given to secure. There was a hearing on the merits and a decree for the plaintiffs.

— Hon. W. B. Quarton, Judge. Action at law to recover the contract price for certain nursery stock sold and delivered to defendant. Trial to a jury. At the conclusion of the evidence, plaintiff filed a motion for a verdict. This motion was sustained, and the court rendered judgment fer plaintiff for the amount of his claim. Defendant appeals

— Hon. B. E. Cooley, Judge. Plaintiff, a creditor of John Harris, deceased, brings this action to set aside a conveyance of certain real estate made by deceased to the defendant, and to charge said real estate with said indebtedness. Plaintiff’s petition was dismissed, and judgment for costs rendered against him, from which he appeals.

— Hon. A. R. Dewey, Judge. • This is an action to recover the rent reserved in a certain lease made and executed by one William Crowby to the defendant, for the term of one year from and after the first day of March, 1891, at the agreed rental of one hundred and sixty dollars per year.

<p>.College v. Guilbert, 100 Iowa, 213, followed.</p>

— Hon. A. B. Thornell, Judge. Action for foreclosure of a mortgage, in which personal judgment was asked and obtained against defendants Stuart and \\ ind, and they appeal.

— Hon. P. W. Burr, Judge.. This is an action upon three counts: One for work done in placing a wall under defendant’s building, which is averred to be worth one hundred dollars; in another the sum of ten dollars is claimed for work done in raising certain joists in plaintiff’s building; and in another count fifteen dollars is claimed for raising and straightening walls of a building, and five dollars and sixty cents is claimed for stone window sills furnished the defendant.