Volume 101 — Iowa Reports

— Hon. Walter I. Smith, Judge. Action at law, to recover from Snyder & Son and J. H. Snyder and L. F. Snyder, the amount of a certain promissory note, executed by them to plaintiffs, on or about July 10, 1894.- In a second count of the petition the plaintiffs alleged, that the other defendants, in consideration of having received a stock of goods from Snyder & Son, promised and agreed to pay the note; and in a still further and third count of their petition they alleged, in…

— Hon. B. P. Birdsall, Judge. Action in equity to rescind a contract in writing for the sale of certain lands, because of alleged frauds and false representations, and to recover seven hundred and fifty dollars, with interest paid on the purchase price, and damages for failure of the defendant to 'give possession of the said land as agreed upon. Decree was entered dismissing plaintiff’s petition, and a judgment rendered against her for costs, from which she appeals.

— -Hon. Walter I. Smith, Judge. Action at law, to recover damages for the alleged wrongful conversion of personal property. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal.

— Hon. George W. Burnham, Judge. After decree in an action for partition was affirmed by the supreme court, and the parties themselves had divided the land, on motion of plaintiffs, the district court allowed plaintiff’s attorney fees for services rendered in both courts, apportioning them among plaintiffs and defendant according to their respective interests, and required defendant to pay one-sixth thereof. From this order he appeals.

— 'Hon. S. M. Weaves,,. Judge. Action at law to collect from the defendant, a member of the Iowa National Guard, a fine imposed upon him by the officers of his company for seven days’ absence from camp duty without excuse. The action was originally commenced in justice’s court, resulting in a judgment for the defendant.

— Hon. W. R. Gtreen, Judge. This action is brought upon a parol contract entered into between plaintiff’s intestate,- Samuel Purcell, and the defendant, whereby said Purcell agreed to drill a well upon the defendant’s farm. Plaintiff claims that defendant was to pay one dollar per foot.

— Hon. S. M. Elwood, Judge. Plaintiff leased to the defendants a farm for three years, from March 1, 1894, at an annual rental of seven hundred and ninety-eight dollars and seventy-five cents. The rent was to be paid two hundred and sixty-six dollars and seventy-five cents on the first day of November of each year, and the balance, five hundred and thirty-two dollars, at the end of the year, March 1.

— Hon. A. B. • Thornell, Judge. Action at law to recover damages for personal injuries resulting to plaintiff through a fall on one of the streets of the defendant city. Trial to a jury, vefdict and judgment for plaintiff, and defendant appeals.

— Hon. W. B. Quarton, J udge. . Creditors’ bill to subject certain real estate and. personal property, standing in the name of Agnes Stambach, to the payment of judgments obtained by appellees against Joseph and Jacob Stambach. The lower court granted the relief demanded, and the defendants appeal.

— Hon. Walter I. Smith, Judge. In November, 1882, plaintiff commenced a suit in the circuit court of Page county, Iowa, against the defendant Wolf, upon two promissory notes, aggregating nearly six thousand dollars. The proper averments were made for the issuance of a writ of attachment, and the writ issued and was served by levying upon certain personal property as the property of the defendant.

<p>Appeal from Clayton District Court. — Hon. L. E. Fellows, Judge.</p> <p>This is an action for judgment on three promis-' sory notes, and on an account. An attachment was issued in the action, and levied upon certain farming implements and tools, as the property of the defendant. Defendant moved to discharge the attached property, as exempt to him as a farmer, which motion was sustained, and from the order discharging said property the plaintiff appeals.</p>

<p>2 8 Appealable Orders: striking pleading. An order striking out an amendment of the complaint, which added another defendant, alleged that he was jointly liable with- the original defendant, and set up grounds for attachment as against him, is appealable (Code, section 3164), as affecting a substantial right.</p> <p>2 Same: Change of venue. While an order granting a change of venue is not appealable, the granting of a change may be reviewed in an appeal from the order striking said amendment</p> <p>1 3 Amendments: leave of court. Plaintiff may amend without leave of court at any time before the answer is filed (Code, section 2647), though a motion to change the venue has been filed by defendant, and the amendment necessitates that the motion to change shall be overruled.</p> <p>4 Notice of Amendment: waiver. Notice of the filing of an amendment to a petition as against one of the defendants, is waived by the appearance of such defendant aDd his motion to strike the amendment from the files.</p>

— Hon. Gr. W. Burnham, Judge. Action for malicious prosecution and for slander. Judgment for defendant, and the plaintiff appealed.

<p>Appeal from Calhoun District Court.— Hon. S. M. Weaver, Judge.</p> <p>This is an action to recover damages for fraud m the sale of a stock of merchandise. In September, 1893, plaintiff entered into negotiations with the defendant for the purchase of a stock of goods belonging to the latter, at Farnhamville, Iowa. On the twenty-first of that month a written agreement was entered’, into by the parties, by the terms of which plaintiff, was to take the goods, “as per invoice, at cost, with an addition of four and one-half per cent, allowed for freight.” Payment was to be made in land and notes. The goods were at once invoiced by Burdick and one Parker, and plaintiff and his son-in-law, Nelson. The inventory, with freight added, amounted to six thousand six hundred and sixty-seven dollars and thirty-five cents, Plaintiff took possession of the goods, conveyed the land to the defendant, and executed notes, as agreed, for the balance; and -the purchase price of the goods was all paid by the early part of January, 1894, except a note for six hundred dollars, which had been transferee 1 by the defendant, and sent to the bank for collection, and it was soon paid. Plaintiff claims that the defendant and Parker raised the cost marks upon said goods so that the plaintiff was cheated out of two thousand dollars. Defendant denies all allegations of fraud, or that the cost price of goods was raised or marked up, and avers that the plaintiff was in possession of the goods for six months, and made no complaint, and continued to sell said stock, and thereby approved and adopted said sale, and is now estopped. A reply in denial was filed to the answer. The cause was tried to the court and a jury,' resulting in a verdict and judgment against the defendant for one thousand six hundred and twelve dollars and fifty cents. Defendant appeals.</p>

— Hon. Walter I. Smith, Judge; Action at law to recover damages for the death of one William It. Grimmelman, resulting from injuries received by him while in the employ of the defendant company. Trial to a jury. Verdict and j udgment for plaintiff, and defendant appeals.—

— Hon. J. Id. Caldwell, Judge. In September, 1898, appellants brought this action in the Tama district court for the partition of certain real estate.

— Hon. William P. Wolf, Judge. Action at law to recover damages of defendants for failure to furnish a sufficient steam-heating apparatus for warming a greenhouse, owned by the plaintiffs, in the city of Cedar Rapids. Trial to a jury. Verdict and judgment for the plaintiffs. Defendants appeal.

<p>1 2 Mechanic’s liens subsequent incumbrancers. McClain's Code, 8314, provides that failure to file lien statement within ninety-days from date of last item, shall not defeat the lien except as to incumbrancers whose right accrued after the ninety days. Held, one who loans money to the owner before the ninety days have expired, and who takes deed as additional security after said time has expired, then knowing that material for which a lien might ■ be filed had been furnished and not paid for, is not a subsequent incumbrancer within said statute, and does not have priority over one who files a lien statement for such material after the ninety days.</p> <p>Just and true statement. Plaintiffs having sold S material for a building on land, to which M held the legal title as security; their right to a lien was not, in the absence of intentional wrong, defeated because they claimed against both S and M.</p> <p>3 Use oe material. A materialman’s lien cannot be defeated by evidenee that the material furnished for the improvement was not actually used for that purpose.</p> <p>4 Appeal: issues below: Payment. A contention in a suit to establish and foreclose a mechanic’s lien, that certain credits were not properly applied on the purchase price of the material for which the lien is claimed, and .that but a small amount, if anything, is due the plaintiff, is, in effect, a claim of payment, and cannot be considered on appeal, where no such issue was tendered by the pleadings.</p>

— Hon. Wm. G. Thompson, Judge. Certiorari proceedings to review and annul a certain action taken by the board of supervisors of Linn county in regard to taxes. A demurrer to the petition was filed and sustained, and, the plaintiff having refused to plead further, judgment was rendered in favor of the defendants for costs.

Court. — Hon. T. M. Gtberson, Judge. Action for damages because of the discharge of water and filth from an improperly constructed sewer, and for an injunction to abate the nuisance. There was a verdict and judgment for plaintiff for damages, but the injunction was refused. The defendant city appealed

This is a proceeding to review the action of the defendant while presiding as the trial judge at the January, 1896, term of the Sac county district, in rendering judgment dismissing a petition filed by plaintiff against one O. W. Cook, after, it is claimed, an appeal had been taken in the case, and the district court had lost jurisdiction.

— Hon. Thomas M. G-ibeeson, Judge. This is an action upon a promissory note for two hundred and fifty dollars, executed March 6, 1894, by the defendant to one Rudd Dent, and by him assigned to the plaintiff. The note was due May 6, 1894. To the petition on the note the defendant answered, in substance, admitting the execution of the note, and pleading a failure of consideration.

— Hon. Ben McCoy, Judge. Plaintiffs, creditors of the estate of P. S. Palmer, deceased, whose claims have been established, ask an order requiring the administrator to apply the proceeds of two certain policies of life insurance, in his hands, to the payment of their claims. The administrator, as such, together with interveners, as his co-heirs at law of P. S. Palmer, deceased, claim that said proceeds belong to them as such heirs.

— Hon. G. W. Wakefield, Judge. The Dorsey Produce Company, of Geneva, N. Y., sold to Ho well-Warfield Company, of Sioux City, ten barrels of berries, and drew on the latter company for the purchase price in favor of the First National Bank, of Geneva, which bank advanced the entire amount, and received the bill of lading of the berries as security for the money paid.

— Hon. William P. Wole, Judge. Suit in equity to quiet title to a certain lot in the city of Cedar Rapids. The plaintiff claims title to the land under and by virtue of tax deed issued to him by the city collector of the city of Cedar Rapids. The defendants deny the validity of the tax title, and ask to be permitted to redeem, offering to reimburse plaintiff for the amount of taxes paid by him.

— Hon. W. P. Wolf, ■ Judge. Suit in equity to quiet title to certain real estate in the city of Cedar Rapids. Plaintiff claims to be the owner thereof by virtue of certain tax deeds executed to him by the treasurer of said city, on the eighth day of November, 1894.

— Hon. William P. Wolf, Judge. Action at law to recover one hundred and ten dollars for injuries to live stock, 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.—

— Hon. O. P. Holmes, Judge. Action at law, aided by a landlord’s attachment, to recover rent due for leased premises. The writ of attachment was levied upon property of the defendant claimed by him to be exempt from execution. There was a trial by the court without a jury, and a judgment in favor of the plaintiff for the sum of one hundred and forty-seven dollars, and for the sale of the attached property.

— Hon. N. W. Maoy, Judge. In November, 1890, E. J. Trowbridge was a merchant at Manilla, Iowa. He had a stock of goods and other property, aggregating about thirteen thousand dollars in value. One Bennett, a cashier of a bank at Manning, was a creditor of Trowbridge, in the sum of about two thousand dollars. November 19, 1890, Bennett brought suit on his claim in the Crawford district court, aided by attachment, and levied the same on the stock of goods.

— Hon. W. A. Spurrier, Judge. Appeal from the judgment of the district court, upon the appeal of the Iowa Pipe and Tile Company, from the action of the Board of Equalization of the city of Des Moines, in assessing the said company in the sum of ten thousand dollars for capital employed in manufacture.

— Hon. G-eorge W. Wakefield, Judge. Plaintiff, in his petition, averred his ownership of certain property in the city of Sheldon, Iowa; that the requisite number of signers to a statement of consent'to the sale of intoxicating liquors within the county under the provisions of the “Mulct Law” had been obtained and filed with the county auditor, as provided by law; that all the prerequisites of the law had been complied with, permitting the sale, without penalty, of…

— Hon. L. O. Hatch, Judge. The plaintiffs are shippers of live stock, and reside in Iowa. They shipped from Littleport, Iowa, to parties in Chicago, a carload of hogs. They claim that, by reason of the defendants’ negligence in failing seasonably to deliver said hogs to the consignees, they have sustained damages, in the depreciation of the market value of said hogs, in the sum of eighteen dollars and ninety-nine cents. The action was brought before a justice of the peace.

— Hon. M. A. Roberts, Judge. This is a contest between creditors as to their respective rights to a certain fund now in the hands of one W. J. Law, the assignee under a statutory deed of assignment of a corporation known as the Bloomfield Woolen Mills.

— Hon. William G. Thompson, Judge. Action for a breach of contract to cut cord wood. Judgment for plaintiff, and the defendant appealed.

— Hon. Joseph O. Burk, 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 for the defendant, on which a .judgment for costs was rendered. The plaintiff appeals.—

<p>Appeal from Dallas District Court. — How. J. H. Apple-gate, Judge.</p> <p>Appeal from an order of the district court sustaining plaintiff’s motion to set aside a sheriff’s sale.</p>

— Hon. W. F. Conrad, Judge. Action at law to recover an amount alleged to be due on a promissory note. A judgment was rendered by default against the defendant, and was afterwards set aside, and a trial to the court without a jury was had, and a second judgment was rendered against the defendant, from which he appeals.

<p>1 2 Land Sale Commissions: sub-agents. Where defendant agreed to pay plaintiff’s commission for sales of land in a certain county, to customers “procured” by plaintiffs, defendants were liable for such commission for sales made, to their knowledge, to customers so procured, though plaintiffs -engaged a third person to make such sales, without the knowledge of defendants.</p> <p>5 Misconduct op agent. Evidence that the agent of plaintiffs advised the son-in-law of a prospective purchaser of the property, that it was perfectly worthless and advised him to tell his father-in-law not to purchase the same, is inadmissible to show that the plaintiffs did not furnish the purchaser, so as to entitle them to the commission on the sale, in the absence of any evidence that the owners or the purchasers ever knew of the statements or were influenced by them.</p> <p>4 Wiiat entitles to. Where defendants agreed to pay commissions for customers procured for their land, plaintiffs must not only find a purchaser, but, because thereof, a sale must follow.</p> <p>8 9 Construction of Contract: Validity. It was provided that brokers should have a commission on all lands sold by them in a certain county, to the knowledge of the owner; and that, on account of their influence in the county, they should have same commission on all sales made to persons living in a certain town within said county. Held:</p> <p>a. The contract is an entirety and valid as to both commission agreements.</p> <p>b. The broker is entitled to commission on sales made to persons living in said town, whether or not the owners knew such to be customers of the brokers.</p> <p>c. It is not material that no time limit is fixed, for it is fixed by presumption of law.</p> <p>3 Instruction: issues. Where defendants agreed to pay commissions for sales of land to customers “procured” by plaintiffs, an instruction that defendants were liable if plaintiff “furnished” customers, is not a departure from the issues made.</p> <p>10 11 Construed. In a sale upon which commission was claimed, part of the purchase price was paid in town lots. The court charged the jury that, in fixing the verdict, it should consider the value of the lots “as shown by the evidence.” Held, this amounted to instructing that the lots should be dealt with at their actual and not their trade or nominal value; and this is the true rule.</p> <p>6 Autliorisy of Partner. A member of a firm of real estate brokers is authorized to contract with agents to act for it in making sales. Such authority is presumed, as matter of law, and the fact that one partner made the contract or had authority to make it, need be neither specially averred' nor proved.</p> <p>7 Review on Appeal: record below. While it is the law that no prejudiee shall arise from failure to demur, no question can be urged on appeal which was not presented below.</p> <p>7 Assignments. In law actions, no question will be reviewed except upon assignments of error based upon the action of the lower court.</p>

— Hon. T. F. Stevenson, Judge. 1 • The plaintiff was an employe of the defendant company, which owned a coal mine operated through a slope, instead of a shaft.

— -Hon. William Gf. Thompson, Judge. Action for damages resulting from a personal injury inflicted by defendant upon the plaintiff, Verdict and judgment for defendant, and the plaintiff appeals.

— Hon. S. M. Elwood, Judge. September 6, 1895, the plaintiff filed with the auditor of Greene county, a petition signed by thirty voters, nominating him for the office of representative, stating that his was the Republican party. After-wards, a convention of the Republican party of that county, nominated P. A. Smith, for the same office, and a proper certificate thereof was filed with the defendant, as auditor, September 24.

— Hon. Charles D. Goldsmith, Judge. Action at law to recover damages for an alleged assault and battery. Trial by jury. Verdict and judgment for the plaintiff. Defendant appeals.— Appeal from Carroll District Court. — Hon. C. D. Goldsmith, Judge.

— Hon. J. H. Apple-gate, Judge. Appeal by the plaintiffs from an order of the district court, overruling a motion to apportion costs.—

— Hon. Walter I. Smith, Judge. Action in equity to recover judgment against the defendant J. A. Hamilton, for an amount of money alleged to be due, and to establish a lien therefor against certain real estate. There was a, hearing qn, the merits, and a decree from which the plaintiff and the defendant H. Mendel appeal; the appeal of the former having been first taken.

— Hon. Soott M. Ladd, Judge. This is an action in the nature of a creditors’ bill, to set aside an alleged fraudulent conveyance, and subject certain real estate to the payment of a judgment obtained by plaintiff against one Solomon Percey. The judgment was rendered in April, 1894.

— Hon. W. P Wolf, Judge. Action for personal injuries caused by a defective sidewalk. Judgment for plaintiff, and the defendant appealed.'

— Hon. William G. Thompson, Judge. Suit in equity, to enjoin and abate a liquor nuisance. The defendants pleaded that the so-called “Mulct Law” was in force in their county, and that they had strictly followed the provisions of that law, and were not subject to the general prohibitory liquor laws. The lower court dismissed the plaintiff’s petition, and taxed the costs of the proceedings against her, and-she appeals.-

— Hon. W. A. Spurrier, Judge. This is an action in equity for judgment on a note, and for the foreclosure of a mortgage securing it upon certain real estate. The note was executed by the defendant, W. D. Mesarvey, to the Lewis Investment Company, was for two thousand five hundred dollars, dated September 15, 1888, and due five years thereafter, and drew interest.

— Hon. S. F. Balliet, Judge. The defendants are, besides the Des Moines Suburban Railway Company, named above, the Des Moines City Railway Company, the Iowa Loan & Trust Company, and the American Trust & Savings Bank.

— Hon. W. B. Quarton, Judge. Action at law to recover the amount alleged to be due on a promissory note. There was a trial, in which a jury was impaneled, but - discharged before the cause was submitted to it, and a judgment was rendered in favor of the defendant. The plaintiff appeals.

<p>Appeal from Polk District Court. — Hon. Thomas F. Stevenson, Judge.</p> <p>Action in equity for the appointment of a receiver of personal property, and to establish thereon a lien in favor of the plaintiff. There was a hearing on the merits, and a decree, from which the defendants Con-. verse, Curtiss, Colden, and Mary A. Buckley appeal.</p>

<p>Appeal from Polk District Court. — Hon. Thomas F. Stevenson, Judge.</p> <p>Suit in equity for the appointment of a receiver of a corporation known as the Pierce-Wallace Publishing Company, for the winding up of its affairs, and for general equitable relief. The lower court ordered the appointment of a receiver for one hrfhdred and eighteen shares of the capital stock of a corporation known as the Homestead Company, owned by the Pierce-Wallace Publishing Company, and directed him to attend the meetings of the stockholders in the Homestead Company, and vote the stock for the Pierce-Wallace Company, and to care for and preserve the said stock under the orders and direction of the court in the premises. Defendants appeal.</p> <p>A court of equity has no inherent jurisdiction to appoint a receiver for a private corporation.</p> <p>High, Receivers, paragraph 288; Beech, Receivers, section 408; 20 Am. & Eng. Enc. Law, page 57; Bangs v. McIntosh, 23 Barb. 598; Attorney General v. Bank of Niagara, Hopkins, Cb 354; Smith v. Los Angeles Superior Court, 97 Cal. 348; Howe v. Duel, 43 Barb. 5Ó5; Belmont v. Erie Railway Co., 52 Barb. B. 637; Pond v. Framington & L. R. Co., 130 Mass. 194; State, Merriam v. Ross, 122 Mo. 435, 23 L. R. A. 534; Jones v. Bank of Leadville, 10 Colo. 464; Heap v. Heap Manufacturing Co., 97 Mich. 147; Murray v. American Surety Co., 44 U. S. App. 43 (70 Fed. Rep. 341); Fischer v. San Francisco Superior Court, 10 Cal. 129; La Society Francaise n Fifteenth Judicial District Court, 53 Cal. 495.</p> <p>Our statutes with reference to the appointment of receivers, applicable alike to corporations and natural persons is, Code, section 2908, McClain’s Code of 1888, section 4113.</p> <p>In order to warrant the appointment of a receiver, there must exist:</p> <p>1. A civil action or proceeding pending.</p> <p>2. There must be some specific property in controversy, or; to use the language of the statute, “property which is the subject of the controversy.”</p> <p>3. The application must be made by a party to such suit.</p> <p>4. In his application he must 'show that he has a probable right to, or interest in, the property in controversy, and “that such property or its rents or profits are in danger of being lost or materially inj ured or impaired,” pending the disposition of the main controversy.</p> <p>5. The receiver may be appointed “to take charge of and control such property” under the court’s direction, “during the pendency of the action.”</p> <p>The plaintiff has no title to the property in controversy; he has not a right to its possession; he has not a lien upon it; he has not a lien upon the proceeds of it; he cannot sell it; as a stockholder in the Pierce-Wallace Publishing Company he owns his stock in that company.</p> <p>White v. Griggs, 54 Iowa, 650; Clark v. Raymond, 84 Iowa, 251; High, receivers, paragraphs 11, 12; May v. Rose, Freeman, Oh. (Miss.) 703; Steele v. Aspy, 128 Ind. 367.</p> <p>If an injury were threatened this stock, and the evidence absolutely fails to show it, Wallace, as a stockholder in the Pierce-Wallace Publishing Company, could not maintain a suit, until he had first applied to the corporation and requested it to do it, and the corporation, under circumstances tantamountto fraud and bad faith,- had refused. A mere refusal would not be enough. The element of fraud or bad faith, or such circumstances as would throw doubt upon the good faith of the decision of the corporate authorities not to act, must be involved.</p> <p>Cook, Stock &• Stockholders (8d Ed.), sections 644, 646; Doclcje v. Woolsey, 59 U. S. 18 Howard, 881,15 L. od. 401; Hawes v. Oakland, 104 U. S. 450, 26 L. ed. 827; New Birmingham Iron & L. Co. v. Blevens, 12 Tex. Civ. App. 410.</p> <p>In the absence of proof and averment of danger of impairment of the value of this stock, pending this suit, no receiver could be appointed, under any circumstances.</p> <p>Loomis v. McKenzie, 31 Iowa, 425; Sleeper v. Iselin, 59 Iowa, 379; Silverman v. Kuhn, 53 Iowa, 436; Paine v. McElroy, 73 Iowa, 81.</p> <p>A receiver can only be appointed as an incident to a pending action.</p> <p>Ex parte Whitfield, 2 Atkins, 315;' Gluck & Becker, Receivers of Corporations, section 10; High, Receivers (3d Ed.), sections 1, 13; French v. Gifford, 30 Iowa, ■ 148; Maish v. Bird, 59 Iowa, 307; Clark v. Raymond, 84 Iowa, 251; State v. Ross, 2 Ohio N. P. 368; Jones v. Bank of Leadville, 10 Colo. 464; People v. Weigley, 155 111. 491; Republican Mountain Silver Mines v. Brown, 19 U. S. App. 203 (58 Fed. Rep. 644), 24 L. R. A. 776.</p> <p>The record discloses no cause of action over which the court had jurisdiction.</p> <p>The question presented is, whether a court of equity has jurisdiction on the petition of a private individual to dissolve a corporation.</p> <p>A court of equity has no such j urisdiction.</p> <p>Morawetz, Priv. Corp., sections 282, 283; 'High, Receivers, sections 288, 289; French v. Gifford, 30 Iowa, 153; Hinckley v. Pfister, 83 Wis. 64; Hardon v. Neivton, 14 Blatchf. 376; Re Mari, 22 Abbott (N. C.) 227; Mac/ee v. Geneseo Academy, 17 N. Y. S. R. 221; Wheeler v. Pullman Iron é S. Co., 148 111. 197, 17 L.' R. A. 818; Neall v. Hill, 16 Cal. 145 (76 Am. Dec. 508); La Societe Francaisev. Fifteenth Judicial District Ct:, 58 Cal. 495; Mason v. Supreme Court of Equitable League of America, 77 Md. 488; Folger v. Columbian Insurance Co., 99 Mass.. 267; Heap v. Heap. Mfg. Co., 97 Mich. 147 •, Republican Mountain Silver Mines v. Brown, 19 U. S. App. 208 (58 Fed. Rep. 644), 24 L. R. A, 776; Verplanclc v. Mercantile Insurance Co., 2 Paige, 452; Bayless v. Orne, Freeman, Ch. (Miss.) 172; Waterbury v. Merchants Union Express Co., 50 Barb. 167; Robertson-v. Bullions, 11 N. Y. 252; State. v. Merchants Insurance & Trust Go., 8 Humph. 252; Baker v. Backus, 32 111. 101; Bank Commissioners v. Bank of Buffalo, 6 Paige, 502; Fountain Ferry Turnpike Road Go. v. Jewell, 8 B. Mon. 142; Attorney General v. Earl Clarendon, 17 Yes. Jr. 491; Slee v. Bloom, 5 Johns. Ch. 379; Van Pelt v. United States Metallic Spring B. & S. Heel Co., 13 Abbott, Pr. N. S. 331; Attorney General v. Bank of Michigan, Harr. Ch. (Mich.) 315; Fischer v. San Francisco -City & County Superior -Ct., 110 Cal. 129.</p> <p>A decree of dissolution does not necessarily involve a receivership.</p> <p>Havemayer v. San Francisco City & County Supreme Ct., 84 Cal. 377, 10 L. R. A. 627.</p> <p>Does a disagreement between stockholders, in the absence of any charge of fraud, -warrant a dissolution of a corporation under our statutes? The articles of incorporation constitute a contract.</p> <p>Ileald v. Owen, 79 Towa, 23; Republican Mountain Silver Mines v. Brown, 19 U; S. App. 203 (58 Fed. Rep 644),' 24 L. R. A. 776.</p> <p>The fact that there are deadlocks, and that the parties must seek relief from mutual concessions, forces concessions and makes interference unnecessary.</p> <p>Loomis v. McKenzie', 81 Iowa, 425; McGeorge v. Bi$ Stone Gap Improv. Go., 57 Fed. Rep. 262; Glenn v. Liggett, 47 Fed. Rep. 474; Jones v. Bank of Leadville, 10 Colo. 464; Gluck & Becker, Receivers of Corporations, section 27; Einstein v. Bosenfeld, 88 N. J. Eq. 809; Little Warrrior Coal Co. v. Hooper, 105 Ala. 665; Am-erican Loan & T. Co. v. Toledo, C. é 8. B. Co., Fed. Rep. 416; Vanduzer v. Vanduzer, 70 Iowa, 614; Maben v. Maben, 72 Iowa, 658.</p> <p>The court, by its order, practically undertakes the management of the Homestead Company, which it cannot do in this action. ■</p> <p>Hook v. Bosworth, 24 U. S. App. 341 (64 Fed. Rep. 443).</p> <p>As a stockholder in the defendant corporation, the plaintiff possesses the right to a voice in its management, and to have a share in its profits and ultimate assets.</p> <p>Cook, Stock and Stockholders, section 11.</p> <p>If his share, or right to share, in the corporate management of property is materially interfered with, and the corporation itself refuses, or is unable, to redress the wrong, the ear of a’ court of equity ought to be open to him.</p> <p>French v. Gifford, 30 Iowa, 148.</p> <p>The following authorities distictly recognize the right of a stockholder to sue by reason of his interest as such, and to have a receiver.</p> <p>Hill v. Glasgow Bailway Co., 41 Fed. Rep. 610; Zabriskie v. Cleveland C. <& G. Bailway Co., 64 U. S. 23 How. 381, 16 L. Ed. 488; Edison v. Edison United Photograph Co., 52 N. J. Eq. 620; Einstein v. Bosenfeld, 38 N. J. Eq. 309; Featherstone ,v. Cooke, L. R. 16 Eq. 298; Laiorence v. Greenwich Fire Insurance Go., 1 Paige 587.</p> <p>The corporation, as such, cannot act, and neither director would respond to a call for aid from the other. With this condition of affairs existing, it is clear that either may sue, and have such relief as the facts may warrant.</p> <p>Wayne Pike Co. v. Hammons, 129 Ind. 368; Supreme Sitting of O. of I. H. v. Baker, 134 Ind. 293, 20 L. R. A. 210; Cook, Stock and Stockholders, section 741, and note.</p> <p>The prayer of plaintiff is also that it may have general equitable relief. Hereunder it may have any relief consistent with the pleadings and proofs, even though not specially asked for.</p> <p>Pond v. Waterloo Agricultural Works, 50 Iowa, 596.</p> <p>The court may appoint a receiver to avoid loss, and preserve the property until it can ascertain what are the rights of the parties. As a matter of course, ■the receiver may take possession of all the property. It has been held that this does not have the effect to work a dissolution.</p> <p>Life Association of America v. Bundle (“Bolfe v. Bundle”) 103 U. S. 222, 26 L. Ed. 337; Parsons v. Charter Oak Life Insurance Co., 31 Fed. Rep. 305; Ilasselman v. Japanese Development Co., 2 Ind. App, 180.</p> <p>To deprive a corporation of all its assets does not have legal effect to dissolve it, or even to impair its franchise. State, Attorney General, v. Merchant, 37 Ohio St. 251; Thompson, Corp., sections 6662, 6663.</p> <p>The case presented is that of a corporation having a board of directors who, because, of bitter personal enmity, which had been fed and fostered until reconciliation has become impossible, might as well be with the world between them, and with the existence of each to the other unknown, as far as anything like co-operation between them is concerned. .</p> <p>Equity will afford adequate relief in sucli a case.</p> <p>Edison v. Edison United Phonograph Co., 52 N. J. Eq. 620; Archer v. American Watenoorks Co., 50 N. J. Eq. 88; Lawrence v. Greenwich Fire Insurance Co., 1 Paige, 587; Meier v. Kansas P. B Co., 5 Dillon, 476.</p> <p>The courts will interfere whenever the managing agents of a corporation cannot, or will not, properly carry on its business.</p> <p>Morawetz, Priv. Corp., section 278; Pond v. Vermont Valley R. Go., 12 Blatchf. 280; Feather stone v. Cooke, L. R. 16 Eq. 298; Lehigh Coal & Nav. Co. v. Central R. Co., 35 N. J. Eq. 349; Elkins v. Camden & A. R. Go., 36 N. J. Eq. 467, affirmed; Camden & A. R. Co. v. Elkins, 37 N. J. Eq. 273.</p> <p>Each stockholder having an interest in the corporate concern as an entirety is entitled to have his rights protected accordingly.</p> <p>Cook, Stock & Stockholders, section 684; Feather-stone v. Cooke, L. R. 16 Eq. 303.</p> <p>If the disagreement between the managing agents could not be reconciled without one or the other abandoning conscience and his sense of honor and right, if no stockholders’ meeting could be held at which the difficulty could be settled, or remedied, the court will proceed to wind up the affairs of the corporation.</p> <p>Morawetz, Priv. Corp., section 282; Re Suburban Hotel Go., L. R. 2 Ch. 737; Faulds v. Yates, 57 111. 416, (11 Am. Rep. 24).</p>

<p>4 Homesteads: joint deeds. An oral agreement, by a married man and his wife, to give their homestead to a grandchild, if she would live with them as their daughter, is void — notwithstanding an assurance that the contract would be performed, made by the husband after the death of the wife — under Code, section 1990, providing that a conveyance or incumbrance by the owner of the homestead, is of no validity, unless the husband and wife, if the owner is married, concur in and sign the same joint instrument.</p> <p>1 Striking Amendment: consolidation ok actions. In a proceeding to establish a claim against an estate, it was not error to strike an amendment by claimant, making an administrator of another estate a party, where the amendment would cause a continuance, and the two claims were based on separate facts, though the claim set up by amendment had to be established first, and both claims might have been adjudicated in one proceeding.</p> <p>2 3 Transfer to Equity. Pending an action by G, brought by her mother, as next friend, against the estate of the latter’s father, to enforce an agreement to convey land to G, and pay her one thousand dollars, the mother agreed to dismiss the suit, and convey her own interest in the estate as heir, to her brother. Afterwards, the mother died, and her executor, under a decree for a specific performance, obtained by the brother, with the executor’s consent, conveyed the mother’s interest, but said suit was not dismissed. Held, that a proceeding by G’s guardian, to establish a claim against the mother’s estate, because of its having received the proceeds of the interest so com eyed, was not one for equitable relief, transferable to the equity docket.</p>

<p>1 Evidence: competency. Evidence of a witness who testifies from certified copies of reports of a commercial agency, and as to his belief from information derived from such agenoy, is inadmissible.</p> <p>2 Declarations explanatory of possession. Declarations of a person in possession of personalty, explanatory of such possession, are inadmissible where neither of the parties to the suit claim under him.</p> <p>4 Injnnclion of Judgment: venue. Under Code, section 3396, provlding that a suit to enjoin a judgment must be brought in the county and court in which it was obtained, the district court cannot restrain proceedings on the judgment of the supreme court.</p> <p>3 New Trial. A new trial will not be granted for evidence not likely to change the result.</p>

<p>Appeal from Polk District Court. — Hon. T. F. Stevenson, Judge.</p> <p>Action to declare invalid a contract for certain paving in the city of Des Moines, and for an injunction to restrain the performance of the contract. Decree for plaintiffs, and the defendants appealed.—</p>

— Hon. H. M. Towner, Judge. This is an action in equity, wherein the plaintiffs ask partition of certain real estate, between the plaintiff Anna Iimas and her sisters, the defendants Minnie Wetsell and Emma Klien. Plaintiff Anna claims title with her sisters, under the last will and testament of their father, Theobold Klien, deceased. The defendant Mary Neidt alone defends.

— Hon. W. B. Quaeton, Judge. Stephens executed a certain mortgage to plaintiffs, and, thereafter, conyeyed the premises described therein to Thurston, who deeded the same to Gross-man.

— Hon. James D. Smyth, Judge. This is an action to reform a deed of conveyance of real estate so as to preserve to plaintiff an easement or right of use to a road across defendant’s land from a public highway to the land of plaintiff. The following plat will indicate the situation: Prior to February, 1887, George Byerle was the owner of the land, marked on the plat “Hoyer 60 Acres,” and the piece marked “John King 80 Acres,” making one hundred and forty acres.

— Hon. M. J. Wade, Judge. The indictment was returned by the grand jury of Johnson county, and charged the defendant and his brother, George Smith, with the crime of assault with intent to commit murder. The defendant was granted a separate trial, and the place thereof, on his application, changed to Iowa county. From judgment of conviction, sentencing him to serve four years and six months in the penitentiary at Anamosa, he appeals.

— Hon. Scott M. . Ladd, Judge. Action to recover damages for the alleged wrongful detention of two promissory notes. The case was tried to the court, and judgment rendered in favor of the plaintiff against the defendants, the Northwestern National Bank and John Scott, Jr., from which judgment said defendants appeal.

— Hon. A. N. Hob-son, Judge. « The defendant is charged with threatening to accuse another of a crime in order to compel him to do an act against his will. From judgment of conviction, imposing a fine of two hundred and fifty dollars, the defendant appeals.

— Hon E. W. Eichelberger, Judge. The defendants are acting officers of independent school district No. 1, Bluff Creek township, Monroe county, Iowa; Powell being treasurer, A. L. Anderson secretary, and the other defendants directors. This action is to test their official rights in respect thereto, except as to William Anderson.

— -Hon. C. P. Holmes, Judge. The defendant was indicted for the crime of larceny, in which he was charged with stealing a watch from the person of one Zodro. He was tried, found guilty, and sentenced to imprisonment for the term of eighteen months in the state penitentiary. He appeals.

<p>3 Incest: indictment. Under Code, section 4030, providing that, “if any persons being within the degree of consanguinity or affinity, in which marriage is prohibited by this section, carnally know each other, they shall be deemed guilty of incest,” an indictment charging as the offense, that defendant had carnal knowledge of his daughter is sufficient, though it does not charge that the persons, had carnal knowledge of each other; for mutual consent is not under our statute, an element of incest. United States v. Hiler, 1 Morris, 330, distinguished.</p> <p>6 Evidence: Discretion. On a trial for incest, where several acts of intercourse were shown, extending over a period of over eighteen months, it was not an abuse of discretion to refuse to require the prosecution, before the close of the direct evidence, to elect on which act it would rely.</p> <p>7 Rape and Incest. Jt was not error to admit evidence of an act which constituted rape, since that crime included incest.</p> <p>8 Pregnancy. It was not error to exclude a conversation had with the prosecuting witness regarding her conduct with men other than defendant, at a period which could not have affected her pregnancy, as proven by the state.</p> <p>9 Disclosing purpose of question. Evidence of a conversation between witnesses and the county attorney on the night before the witnesses were called, was properly excluded, where the purpose of its introduction was not disclosed.</p> <p>5 Harmless error — appeal. A conviction of incest will not be reversed on appeal, because defendant’s former wife, who was incompetent under Code, 3612, was allowed to testify to conversations between them, tending to show the acts of intercourse relied on by the prosecution, where the fact that there were repeated acts of intercourse is established beyond all doubt, and the evidence of intercourse charged is so strong that the exclusion of her testimony could not have affected the result.</p> <p>10 Irrelevancy and incompetency. Preliminary information filed against a defendant in a prosecution for incest, charging rape and incest against different members of his own family, including the prosecutrix, covering the time of the acts relied upon by the state, are inadmissible in behalf of the defendant for the purpose of showing-that there'was doubt in the minds of the prosecution a§ to the exact legal aspect of the various facts.</p> <p>1 Indictment: Minutes of evidence. Letters and pictures that were before the grand jury, are not required to be returned with the indictment to the clerk, under Code, section 4337, pro riding that an indictment must be set aside on motion, when the minutes of the evidence of witnesses summoned before the grand jury are not returned there with, as the word, “witnesses” means “persons.”</p> <p>2 Same. An indictment will not be set aside under Code, section 4337, providing that an indictment must be set aside on motion, when the minutes of the evidence of witnesses summoned before the grand jury, are not returned therewith, because only a copy of the testimony taken by the clerk of the grand jury, made by a stenographer and typewriter, in the office of the county attorney, was returned, there being no pretense that the minutes so returned are not correct.</p> <p>4 Witness: not before grand joey: Waiver. Under a statutory provision that the state shall not introduce any witness whose name is not indorsed on the indictment, defendant waives the objection to the introduction of such a witness by allowing him to be examined, in part, without objection. The prohibition goes to the witness, and not to the competency of his testimony.</p> <p>Ladd, J., took no part.</p>

— Hon. A. J. McCrary, Judge. Action in equity, to recover an amount alleged to be due on a promissory note, and to foreclose a real estate, mortgage, given to secure its payment. The defendant, Albertina Johnson, claims to be the owner of the mortgaged property, and avers that the note and mortgage were given without consideration, for the purpose of defrauding her. She asks that the mortgage be canceled of record, and that the title to the lots be quieted in her.

— Hon. W. H. Ted-ford, Judge. Defendant was indicted, tried, and convicted of the crime of assault with intent to commit rape, and from the judgment he appeals.

— Hon. C. P. Holmes, Judge. This is an action in equity begun in April, 1894, to set aside a special assessment for paving East'Grand averme, in the city of Des Moines, between Eighteenth street, on the west, and the State Fair Grounds, on the east, upon which street, and between the points named, plaintiff’s lots abut. Certificates were issued to the contractors doing the work, and were by them assigned to the defendant the Des Moines Brick Manufacturing Company.

— Hon. C. P. Holmes, Judge. Defendant was indicted, tried, and convicted of the crime of uttering a forged check, and, from the sentence imposed, appeals.

— Hon. George . W. Wakefield, Judge. This appeal is by the plaintiff from an order and decree entered upon a motion to discharge the garnishees. The issues and facts appear in the opinion.

— Hon. F. W. Eiohelberg-er, Judge. The plaintiff commenced an action at law to recover damages alleged to have been caused by the defendants, J. D. Ferree and T. E. Muir, in so grading a lot as to injure an adjoining one owned by her. That action was consolidated with one brought by Ferree to enjoin her from enclosing, as her own, a strip of ground lying on the boundary line of the two lots.

— Hon. William P. Wolf, Judge. The defendant was convicted of the crime of larceny, and from a judgment which imposed a fine, and required that he be imprisoned in the county jail, he appeals.

— Hon. Ben McCoy, Judge. Proceeding in probate to establish a claim against the estate of G. W. Norton, deceased. There was a trial by the court, and an order allowing and directing the payment of the claim. The defendant appeals.

— Hon. James D. Smyth, Judge. This is an appeal from the action of the Board of Equalization of the city of Burlington. There was a decree dismissing the plaintiff’s bill, and judgment was rendered against if for costs. Plaintiff appeals.

— Hon. Benjamin McCoy, Judge. ■ Suit in equity to recover the balance of the contract price of a half interest in a certain newspaper plant, and to establish the amount thereof as a lien> upon the property. Judgment and decree for plaintiff, and defendants appeal.

— Hon. Z. A. Church, Judge. Action at law to1 recover damages for an alleged wrongful eviction of plaintiff by the defendant from the possession of a certain farm which plaintiff had leased from the defendant; also to recover for plowing done on said farm. Defendant answered, denying that he wrongfully evicted plaintiff, denying the allegations of damage, and alleging that the plowing was done in lieu of plowing that had been done before plaintiff took possession.

— Hon. A. W. Wilkinson, Judge. Action on an account, aided by attachment, in which the Chicago, Milwaukee & St. Paul Railway Company is attached as garnishee The following is the notice of the action served on the defendant: “Justice Notice.

— Hon. T. M. Fee, Judge. Mat 14, 1894, plaintiffs, in writing, leased to one Pierson the right to mine the coal underlying forty acres of land. Pierson took possession under his lease, and conducted mining operations. The lease was for a period of ten years, subject to the conditions stated therein. One of the provisions of said lease granted to Pierson the use of two acres of the surface of the ground for hoisting the coal to be mined under the lease.

— Hon. H. M. . .Towner, Judge. This is an action for malicious prosecution by the plaintiff against the defendant. The claim is that the defendant, with malice, and without probable cause, filed an information against this plaintiff, charging him with the larceny of some chickens of the value of two dollars; that he procured the plaintiff’s arrest under said information; that upon a trial of the cause before the justice, he found the plaintiff not guilty, and discharged him.

— Hon. W. H. Tedeord, Judge. Action at law to recover attorney’s fees upon an injunction bond given in a proceeding in 'which defendant was seeking to set aside and enjoin the collection of a judgment held by the plaintiff against it. A trial to the court resulted in a judgment for defendant, from which plaintiff appeals.

— Hon. D. R. Hind-man, Judge. This is an action in equity by the state, for the use of the Iowa State University, to establish and quiet title in plaintiff to forty acres of land in Wright county. The defendants claim under, several tax deeds regular on their face. Decree was entered for plaintiff as prayed, and defendants appeal.

<p>Appeal from Black Hawk District Court. — Hon. A. S. Blair, Judge.</p> <p>J. T. Knapp & Co., in August, 1898, were engaged in banking at Cedar Falls, Iowa. At that time appellant, Maude Farnham, was a minor, and one I, D, Grilkey was her guardian, and as such, had in his custody money belonging to his ward in the sum of about five hundred forty-eight dollars and sixty-three cents, which he deposited with J. T. Knapp & Co. on August 9, 1898. On the twenty-second day of the same month J. T. Knapp & Co. made an assignment for the benefit of their creditors, with H. H. Clay as assignee. Within three months of the giving of'the notice of the assignment, the guardian filed the claim with the assignee, and in December, 1894, a dividend of fifteen per cent was paid, in which the guardian participated, receiving that per cent of the claim, no objection having been made to it. On the thirty-first day of October, 1895, Maude Farnham, having attained her majority, filed her petition in the assignment proceeding, reciting the facts as to the deposit, and that J. T. Knapp & Co. knew of its trust character, and asked that it be declared a trust fund in the hands of the assignee, and that the assignee be required to pay the same in full, as a preferred claim. The assignee appeared in person and by counsel, and without in any way pleading to or assailing the petition. Evidence was taken as in a case of general denial, and upon the final submission the court disallowed the claim as follows: “Claim of Maude Farnham not allowed as a preferred claim as asked, the same having been allowed by assignee as a general claim filed by her guardian, and assets reported some two years ago, and 'treated as a general claim, and the alleged trust fund having gone to said estate as a general fund, and the guardian having drawn dividend thereon. To all of which said claimant then and there duly excepted.” From the order of the court the petitioner appealed.</p>

— Hon. P. B. Wolfe, Judge. Action in equity to enjoin the collection of a special tax levied on account of the paving of a street. There was a hearing on the merits, and a decree in favor of the plaintiff in each case. The defendant appeals from each decree.

— Hon. William G. Thompson, Judge Action to recover upon a certificate of life insurance issued by the defendant upon the life of Jesse C. Bixby, who died February 18, 1893, wherein plaintiff, his widow, is named as the beneficiary. The case was tried to a jury, and verdict and judgment rendered for the plaintiff. Defendant appeals.

: — Hon.. J. L. Husted, Judge. .Action at law to recover an amount alleged to be due on a fire insurance policy. After the evidence had been submitted, the court directed a verdict for the plaintiff, and judgment was rendered accordingly. The defendant appeals.

— Hon. B. P. Birdsall, Judge. Action on two notes signed by C. H. Crabtree & Co. Only C. H. Crabtree was served with notice, and,” in his answer, be denies liability. Trial to jury. Yerdict and judgment for the plaintiff, and defendant appeals.

— Hon. Charles M Waterman, Judge. The undisputed facts in this case are that the plaintiff bank and the defendant, the Citizens National Bank, are both situated in the city of Davenport, Iowa. Both have for many years been conducting a banking business in the same building in that city.

<p>1 Exemption of Insurance Money: construction os’ policy and statute. Where an insurance policy carried by a husband provides that in the event of his total disability one thousand five hundred dollars shall be paid to him, and, in the event of death, to his wife, and the husband becomes totally disabled, and the' money is paid to him, and is by him given to his wife, the fund is not exempt to the wife, under Code, section 1183 (amended by Twenty-fourth General Assembly), providing that “the avails of all policies of insurance on the life of any individual, payable to his surviving widow, shall be exempt from liabilities for all debts of such beneficiary contracted prior to the death of the assured.” Especially, where the debt sought to be enforced is the joint and several debt of the husband and wife.</p> <p>1 3 Personal privilege: Husband and wife. In an action against a husband and wife, aided by garnishment, where they jointly plead that,the money in the hands of the garnishee is the prop■ erty of the wife, the wife cannot claim the money as exempt to her husband. The right to claim insurance money as exempt in a husband is, purely, his personal privilege.</p> <p>5 Waiver by contract. An agreement by one insured against total disability to pay a physician for medical services out of the avails of such policy is legal and defeats the exemption from debts of the insured given to insurance money by Code, section 1183.</p> <p>5 6 Evidence: parol variance. Parol evidence of an agreement to pay a physician for medical services out of the avails of an insurance policy is not inadmissible on the ground that it would vary a note given in payment for such services.</p> <p>1 Fraud. Such evidence is, at all events, admissible where the maker of the note alleges that it is void for being obtained by fraud and duress. Void writings, alone, may not be thus varied.</p> <p>1 2 Insurance: construction of policy. A certificate of membership in an organization which promises to pay the member a specified amount in case of his total disability, or a like amount to his wife in case of his death, will be treated as an' ordinary contract of insurance against death and a total disability from whatever cause, and not simply as a contract of accident insurance.</p> <p>á Family Necessaries: doctor bill of husband. A claim for medical services rendered the husband is a family expense, for which the husband and wife are jointly and severally liable.</p>

— Hon. George W. Wakefield, Judge. Action to quiet title to certain land alleged to have been erroneously condenmned for school purposes. Demurrer to defendant’s answer was overruled, and the plaintiff failing to plead further, his petition was dismissed, and he appeals.

— Hon. C. M. Waterman, Judge. Action at law upon a certificate of membership issued by defendant, a mutual benefit association, to the plaintiff. The court sustained a demurrer to the defendant’s answer, and defendant appeals. The members of a mutual insurance company are presumed to have knowledge of the articles of incorporation and by-laws of the company. Soils v. Iowa Mut. Ben. Assoc., 82. Iowa, 112, 11 L. E. A. 299; Simeral v. Duluque Mut. Fire Ins.

— Hon. J. J. Ney, Judge. The plaintiff is the receive? of the Iowa City National Bank. The Iowa City Bank is a co-partnership composed of E. Clark, Thomas Hill, and John N. Coldren, the latter being its cashier. The Iowa City Bank had been in existence for some time prior to November, 1882, at which time the Iowa City National Bank was organized with John N. Coldren also as its cashier, and with Clark, Hill, and Coldren as stockholders therein.

— Hon. J. H. Henderson, Judge. This action is brought by the plaintiff bank upon certain promissory notes which it claims it purchased from W. J. Wroughten & Co., the payees of said notes, for value, before maturity, and without notice of any defenses thereto.

— Hon. William G. Thompson, Judge. Plaintiff commenced this action before H. M. Sheldon, mayor of the town of Coggon, to recover seventy-seven dollars and fifty cents rent alleged to be due. An attachment was sued out, and certain corn, threshing machine, and other property of the defendant’s taken and held thereunder.

— Hon. Georeg W. Wakeeield, Judge. Action in equity to redeem certain lots from tax sale, and to have a portion of the taxes levied thereon declared illegal. Decree for the defendants, and plaintiff appeals.

— Hon. J. J. Tolerton, Judge. Action at law to recover damages for injuries susstained by plaintiff by reason of the alleged negligence of defendant in constructing a bridge in a certain highway in Delaware county, and in creating a nuisance by erecting a cattle pass under said bridge without authority. Trial to a jury. Yerdict and judgment for defendant, and plaintiff appeals.

Boone District Court. — Hon. B. P. Birdsall, Judge. Plaintiff brings an action in equity for j udgment on four promissory notes, and for the foreclosure of a mortgage securing them. The defendants’ answer, in substance, admitted that they signed the notes, and averred that nothing is due thereon.

— Hon. Walter I. Smith, Judge. Action to recover on one note of one thousand dollars, dated December 21, 1894, and on another of two thousand one hundred dollars, dated March 18, 1895, on which were indorsements amounting to one hundred and eleven dollars and thirty-nine cents. The notes became due sis months after date, and were signed by S. J. Coffman as principal, and his wife, I. A. Coffman, as surety, in Nebraska, where all the parties reside.

— Hon. B. P. Birdsall, Judge. Plaintiff asks to recover one hundred and fifty dollars, and states his causes of action in three counts, the first being as follows: “That on the-day of March, 1895, the defendant employed the plaintiff by contract not in writing, and agreed to pay the plaintiff for his services rendered and to be rendered, as an attorney, in the case of Church, et al., against the City of Marshalltown, et al., being the case No. 5,579, in the district court of…

— Hon. A. S. Blaie, Judge. Action at law to recover an amount alleged to be due on an account and on a promissory note. When the evidence had been fully submitted, a verdict was returned for the defendants, by direction of the court: Judgment was rendered thereon, and the plaintiff appeals.

— Hon. D. R. Hind-man, Judge. Action at law to recover compensation for the alleged sale of real estate. At the conclusion of the evidence the district court directed a verdict for the defendant, and rendered judgment in his favor. The plaintiff appeals.

— Hon. N. W. Macy, Judge. Action at law to recover on two promissory notes. When the evidence had been fully submitted, a verdict in favor of the plaintiff for the amount of the notes, was returned by direction of the court, and judgment was rendered accordingly. The defendant appeals.

— Hon. W. B. Quarton, Judge. 1 Plaintiff’s intestate, when killed, was in the service of the defendant company at the city of Perry, Iowa, as a car inspector. At said city the defendant has located somewhat extensive yards, having numerous tracks, and it is also a freight division station.

— Hon. John F. Oliver, Judge. This is a proceeding in probate, to establish against the estate of D. H. Shannon, deceased, a claim for money alleged to be due. There was a trial by jury, and a verdict and judgment in favor of the plaintiff. The defendants, the administrators of the estate of the decedent, appeal.

— Hon. Scott M. Ladd, Judge. This is an action in equity, brought by the plaintiff, to quiet title to lands hereinafter described, and from an order removing the defendants therefrom. Plaintiff is the owner of lots 1, 2, 3, and 4 in section 34, Twp. 79, range No. 45 W. of the fifth P. M. These lots originally bordered on the left, or Iowa bank of the Missouri river, as the same was surveyed and meandered by the general government when the first survey was made.

— Hon. B. P. Birdsall, Judge. Action at law, to recover damages for alleged malpractice by the defendant. There was a trial on the merits, and a verdict and judgment in favor of the plaintiff, from which he appeals. The required degree of skill and diligence is the average of the profession generally, and not the average in a vicinity. Smothers v. Hanks, 84 Iowa, 289 (11 Am.

— Hon. Frank E. Gtaynor, Judge. Action in equity to set aside conveyances of real estate and personal property, and, if that cannot he done, for judgment for the value of the interest conveyed and for general equitable relief. There was a hearing on the merits, and a judgment in favor of the defendants for costs. The plaintiffs appeal.

— Hon. Portee W. Burr, Judge. Action at law to recover an amount alleged to be due on a promissory note, and for money received for the plaintiff, and unpaid. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiff appeals.

— Hon. George H. Carr, Judge. The plaintiff is the father, and the defendant the grandfather, of a child about twenty-three months old. This action is a habeas corpus proceeding to settle the legal custody of the child. The court below found the facts as follows: “(1) That Cornelius Leo Kuhn is a child twenty-three months old.

— Hon. W. B ■ Quarton, Judge. Action at. law to recover attorney’s fees. Defendant admits the employment of plaintiff, but says Ms services were not worth to exceed the sum of one hundred and twenty-five dollars, for which amount it offered to confess judgment. Plaintiff refused to accept the offer, and the case was tried to a jury, resulting in a verdict and judgment in his favor for the sum of two hundred and fifteen dollars. Defendant appeals.

— Hon. Z. A. Church, Judge. Judgment was rendered in justice court December L5, 1873, in favor of M. D. Madden against the plaintiff and Elijah H. Cole, and a transcript thereof filed with the clerk of the circuit court May 1, 1876. It was assigned to Thomas E. Barbee, January 22, 1895, and by him to W. A. McLagan.

D. R. Hind-man, Judge. Creditors’ bill to subject certain real estate, the legal title to which is in the name of Anna Matilda Benson, to the payment of a judgment held by plaintiffs against the firm of Clark & Benson, of which firm J. A. Benson was a member. Trial to the court. Decree for defendants, and plaintiffs appeal—

— Hon. J. L. Hus-ted, Judge. Action in equity to compel defendants to re-convey certain land in Dubuque county, and quiet title in plaintiffs. Decree for plaintiffs, and defendants appeal.

A.'p'pealfrom Union District Court. — Hon. H. M. Towner, J udge. This is an action to recover water rents alleged to bp due from the defendants for water furnished during the year 1894, by the plaintiff, in pursuance of the provisions of an ordinance of the defendant city known as “Ordinance No. 128.” The defendant answered, setting up a number of defenses, of which those insisted upon will be hereafter noticed.

— Hon. John F. Oliver, Judge. This is an action m equity, by the plaintiffs, to restrain the defendants from erecting a dam across the Floyd river, at any point thereon within such distance above plaintiffs’ dam as would interrupt or stop the natural flow of the water in said stream, to plain-' tiffs’ detriment. The plaintiffs allege: That they own and operate a steam and water power grist mill, which was erected in 1870, and has since been used as a flouring mill.

— Hon. A. S. Blair, Judge. Plaintiff on February 17, 1894, commenced Ms action against the defendants, aided by attachment, in which he sought to recover some twenty-four thousand… Held: that where a contract was made between two persons, for the benefit of a third, the original parties to the contract might rescind the same, “unless in the meantime the person for whose benefit it was made, in some manner had indicated he accepts the contract, or it can be implied he did so.

<p>Appeal from Polk District Court. — Hon, W. P. Conrad, Judge,</p>

<p>Appeal from Scott District Court. — Hon. C. ^..Waterman, Judge.</p> <p>Action for damages arising from the death of Elizabeth Eoby. Trial to a jury, Yerdict for the defendant. Plaintiff appeals,</p>

<p>Selling liquor: Conviction sustained.</p>

— Hon. M. J. Wade, Judge. The petition shows that the plaintiff is a son of J. K. Graves; that in April or May, 1889, J. K. Graves was the owner of twenty-six thousand four hundred dollars of the capital stock of the Western Union Fuel Company, and twenty-five thousand dollars of the capital stock of the American Coal Company, which stock was at that time in the possession of the First National Bank of Chicago, 111., as collateral security to notes executed by Graves to said…

— Hon. F. E. G'ay-nor, Judge. Action to remove a cloud from the title to real estate. Decree for plaintiffs, and defendants appealed.