Volume 104 — Iowa Reports

— Hon. W. R. Green, Judge. The defendant was indicted, tried, and convicted of the crime of rape, upon a female under the age of fifteen years-, -alleged -to have been committed in Mills county, Iowa} on the twenty-fourth day of December, 1896. His motion for a new trial was overruled1, and judgment of imprisonment in the penitentiary- for the period of five years rendered against him, from which he appeals.

<p>6 Rape: mental capacity: Evidence. It was competent to show the appearance, condition, and actions of the prosecutrix at and for some time prior to the time of the commission of the offense, to prove mental capacity, by non-expert witnesses.</p> <p>7 Same: Plea ond proof. Evidence of the mental weakness of the prosecutrix was admissible as bearing on the question of consent, though it was not alleged in the indictment that she was feeble minded.</p> <p>9 Included offenses. Assault with the intent to inflict great bodily injury is not necessarily included in a charge of rape, and the court need not instruct respecting it.</p> <p>9 S i top. It was not necessary to instruct respecting a simple assault, where the evidence showed that, if defendant was guilty of an assault, he also committed a battery.</p> <p>10 Same. The court in a trial for rape need not instruct, the defendant may be. found guilty of a simple assault, although evidence of such an assault, made by the defendant upon the prosecutrix after lie was placed under arrest, was given, where he was not tried for that offense, but for an assault included in the crime charged.</p> <p>4 Evidence: timely objection. A motion to strike out certain e> idence as irrelevant and immaterial, was correctly overruled, where no objection was lodged against such evidence until after it was fully adduced, and where it constituted a part of the history of the crime charged.</p> <p>2 8 Evidence: Reputation, in a prosecution for rape the character of the prosecutrix may be proved by evidence of general reputation, but testimony as to particular acts or specific facts is not admissible.</p> <p>8 Same. In a trial for rape, testimony offered to show certain acts of the prosecutrix in wrestling with persons other than the defendant in an unbecoming manner, is inadmissible when it is not shown that such improper conduct occurred before the commission of the alleged offense, and as being evidence of specific acts.</p> <p>5 Harmless error. In a trial for rape where the prosecutrix was enticed from a dance hall by one of the defendants and taken to a stone quarry, where drunken men were carousing, by several of whom she was ravished, evidence of the presence of such defendant and the complaining witness at the dance hall and as to what occurred at the quarry prior to their arrival there, is not prejudicial to the defendant on the trial, when the jury were instructed not to consider any acts or statements of other defendants not made in the presence and hearing of the accused.</p> <p>3 Change of Yenue. A change of venue need not be granted in a trial for rape, by reason of sensational newspaper articles in reference to the crime, which allege that the organization of a vigilance committee is seriously contemplated, and that it might take a hand in the proceedings if the preliminary trial is unduly prolonged, when no feeling against the defendant pervades the county, although some exists in the vicinity where the crime was committed.</p> <p>1 Continuance. A motion made by defendant, in a trial for rape, for a continuance, based upon the absence of two witnesses, will not be granted where no excuse is made for the delay in making the application, nor any facts constituting diligence in endeavoring to procure the attendance of the witnesses set forth, and when most of the facts expected to be proved by them are immaterial and irrelevant.</p>

<p>5 Seduction: law or the case. A conviction of the crime of seduction will not be sustained, when the court instructed the jury that the case rested entirely on an alleged promise of marriage, and that if the prosecutrix assented to the intercourse upon the defendant’s promise to marry her should pregnancy result therefrom, they should find for the defendant, where the testimony of the prosecutrix was that the promise of marriage was conditioned upon her getting in a family way.</p> <p>1 Evidence: reserved ruling: Appeal. Where defendant moved to strike out an answer of a witness, and the trial court reserved its ruling, and- the matter was not again called to its attention, defendant cannot complain, as there was neither a ruling nor an exception.</p> <p>4 Striking out: Curing error. In a prosecution for seduction, a certain witness testified that the neighbors, three strange ladies, prosecutrix and a lady named O, had told her that prosecutrix and defendant were engaged to be married. Thereafter the court struck out the evidence of said witness as to what the neighbors said, and charged that all evidence of other witnesses as to talk among neighbors about such engagement was withdrawn. Held, that the statements of the three strange ladies, the prosecutrix, and O, were not withdrawn, and the error of their admission was not cured.</p> <p>2 Harmless error. A defendant accused of seduction cannot complain of a refusal to permit the prosecutrix to answer, on cross examination, whether she ever thought, from his words and conduct prior to her alleged seduction, that he desired to have connection witli her, where he was permitted to inquire of' her what his object and purpose were in going with her.</p> <p>3 Same. In a prosecution for seduction, the error of permitting proseeutrix’s doctor to testify that the prosecutrix had stated that she was unmarried was cured by prosecutrix’s testimony to that effect.</p>

<p>False Pretenses: indictment. An indictment for “obtaining property under false pretenses” charged that defendant did designedly, and with intent to defraud, feloniously and falsely represent to L that he was solvent, and worth ten thousand dollars, whereas he was not worth that sum, or any other; that L believed and relied on such representations, which were made knowingly, designedly, and feloniously, to obtain L’s signature as security for defendant to a note; that the note so obtained was signed by L, and delivered to the payee; and that the facts that the defendant was not worth ten thousand dollars, nor any other sum, and that he was insolvent, were at the time unknown to L. Held, sufficient, under Code 1878, section 4073, providing that if one designedly, and by false pretense, and with intent to defraud, obtains the signature of any person to any writing, the false making of which would be punished as forgery; he shall be punished, though the intent to defraud L was not specifically alleged.</p> <p>Appeal: verdict. A verdict in a criminal case is sustained by the evidence, although the proof on the part of the state is not entirely satisfactory, where it is so materially strengthened by the testimony of the defendant, given in his own behalf, as to authorize the verdict.</p>

<p>1 Incest: indictment. Indictment-for incest, charging carnal knowledge on part of accused only, is sufficient.</p> <p>2 Criminal Practice: defective indictment. Upon the discharge of a jury, and the termination of a criminal trial by reason of a defective indictment, the court may in its discretion re-submit the case to the grand jury, under Code 1873, section 4450, when it will tend to prevent the failure of justice.</p> <p>2 Same. The court may in a criminal trial, when by an objection to the offering of testimony it is pointed out that the indictment does not charge a crime punishable by law, discharge the jury and end 'the trial, under Code 1873, section 4444.</p> <p>3 Demurrer. Defendant should demur to indictment on the ground that it does not charge a crime (Code 1873, sections 4345, 4352), this not being one of the grounds for which section 4337 authorized the indictment to be set aside on motion.</p>

— Hon. W. H. Tedeord, Judge. The facts of this case, because of the concessions of counsel that but a; single question is to be considered in this'court, may be much simplified from those stated, in the record or argument. The defendant is the head of a family, and was the owner of one hundred1 and seven acres of land. The land isi designated as two-tracts, one containing one hundred acres, and- the other seven acres.

<p>2 Evidence: injury by train. In an action against a railway company to recover damages for the death of the plaintiff s intestate, evidence as to the value of a farm of which the deceased was a co-tenant, offered as bearing upon the question of damages, is immaterial.</p> <p>1 Same: Jury question. It is a question of fact for the jury whether the circumstances attending the death of one killed at a railway crossing are such as to overcome the presumption that the deceased, prompted by the instinct of self-preservation, exercised the care required of him, when no one witnessed the accident nor the manner in which the deceased approached and went upon the track.</p>

<p>2 Sew Trial. An order entered in a proceeding by an administrator to recover property alleged to belong-to the. estate -which directs the return of a sum of money with interest, will be vacated where the administrator’s petition asked for the return of a note.</p> <p>1 2 Appeal. An appeal will lie from a decision which overrules a demurrer to a petition for re-hearing in a proceeding by an administrator to obtain property alleged to belong to the estate.</p> <p>4 Same. The granting of a new trial in a proceeding instituted by an administrator to recover property-alleged to belong to the estate, rests in the discretion of the court, and its decision will not be reversed on appeal, in the absence of abuse of such discretion.</p> <p>1 3 Rule Applied. Defendant was cited under Code 1873, section 2370, to be examined with reference to a writing in his hands which it is claimed belonged to the estate of which petitioner was the administrator. After the close of the term at which the examination was held, the court made an order directing the defendant to pay the administrator three hundred dollars. Defendant petitioned for a re-trial, on the ground that the original petition did not ask a personal judgment against him; that he had no notice thereof until the order was served upon him; that the order was entered in vacation, and without his consent; that he was misled by statements of counsel for the petitioner into believing that no personal claim was made against him; that he never had any money belonging to the estate; that the writing referred to was merely a memorandum made by him as priest at the time the deceased made a gift to the church; that the court in the examination, which was conducted partly in German and partly in English, misunderstood the effect'of the memorandum. Hekl, that the grant of a new trial was in the sound discretion of the trial court.</p>

<p>3 Negligence: railroads. It is negligence on the part of a railway-company to allow an accumulation of ice upon the platform of its passenger station, caused by the dropping of water from the roof, to remain without any effort to remove it, or cover it with some substance that would be less dangerous.</p> <p>1 3 4 Contributory negligence. One'who, in entering a railway depot, passed over a place made unsafe by an accumulation of ice, and knew of its dangerous condition, yet who soon thereafter, while watching upon the platform for the incoming train, stepped backward upon the ice without looking or taking any precaution for Ms safety, whereby he fell to his injury, — is guilty of contributory negligence.</p> <p>2 Evidence: cross-examination. A question asked on cross-examination which has already been answered may be properly objected to on that account.</p> <p>5 Appeal: review of findings. Special findings by a jury will not be sustained if contrary to the evidence, and when material and determinative in their character, the party found against will not be presumed to have had a fair trial.</p> <p>Ladd^ J., taking no part.</p>

— Hon. J. H. Apple-gate, Judge. Plaintiff states as his cause of action that he is the owner of the southeast quarter of section 26-81-27, Dallas county; that he derives his title through Pliny T. Sexton by virtue of a purchase under a contract in writing set out; that upon the execution of said contract he went, and has ever since remained, in possession of said land thereunder; that he has performed all the conditions thereof, and has been ready and willing to perform the…

<p>Appeal from Mahaska District Court. — Hon. A. E. Dewey, Judge.</p> <p>Action to recover damages for a personal injury. Jury trial. Verdict for defendant. Plaintiff appeals.—</p>

From Polk District Court. — How. T. F. Stevenson, Judge. This is a proceeding in certiorari to review an order of the district court of Polk county, which granted a new trial to a person adjudged to be in contempt for violating an injunction against the maintaining of a liquor nuisance.

— Hon. S. M. Ladd, Judge. Action for the possession and right of occupancy of certain, church property, and' to restrain the defendants from interfering therewith. Decree for defendants, and the plaintiffs appealed.

— Hon. F. Wb Eichelberger, Judge. Action at law to recover double the value of four pigs alleged to Rave been killed by a train of the defendant at .a point on its railway where it Rad the right to •fence, but had failed- to do so. There was a trial by jury, and a verdict and judgment for the plaintiff. The ■defendant appeals.

<p>1 Pleading'. In an action to recover damages for the killing of a horse which entered on the right of way at a point where the company had a right to fence, a general denial presents the issue whether the railroad had a right to fence at the point in question, and not whether it had legal excuse for failing to do so. The last is matter in estoppel which must be specially pleaded.</p> <p>1 S.uie. If the fact that a duty required by law involves difficulty or expense would be a legal excuse for failure to meet the requirement, it must be pleaded as a matter of affirmative defense, to be available.</p> <p>2 Same: Instructions, In an action against a railroad company for the killing of live stock, resulting from the failure of said road to build a fence along a portion of its right of way, acts of plaintiff excusing such neglect are not available under a general denial, and under such issues, an instruction allowing a recovery if a horse was killed through neglect of defendant to fence, is proper.</p> <p>3 Fences. A fence built along his holding by a tenant of lands leased from a railway company is not a right of way fence, in the absence of some agreement, express or implied.</p> <p>4 Evidence: ratlhoads. A finding that horses killed on a railroad right of way entered at a point where there was no fence, will be supported by evidence that the hoofprints of the animals indicated such to be the fact.</p>

<p>Appeal from O’Brien District Court. — Hon. George W. Wakefield, Judge.,</p>

<p>Appeal from Appanoose District Court. — Hon. T. M. Fee, Judge.</p> <p>Appeal from an order and judgment taxing certain costs, to plaintiff, White.</p>

<p>2 Negligence: instructions. In an action for personal injuries, where there is a conflict in the evidence in regard to the circumstances under which the accident occurred, and there is direct evidence of proper care on the part of plaintiff, it is prejudicial error to instruct that the jury are to take into consideration the natural instinct of man to guard himself from danger and preserve himself from injury.</p> <p>1 (fitness: personal transaction. Under Code 1873, section 3639, providing that no party to any action shall be examined as a witness in regard to any communication between him and a person who is dead at the commencement of the examination, against-the survivor of such deceased person, the plaintiff in an action for personal injuries against the members of a partnership is incompetent to testify to a conversation with one of the partners who dies before the trial, although his personal representative is not substituted as a party to the action.</p>

<p>Fraud: setting deed aside. A widow made deed to F. Part of the land belonged to a minor and a bond was given that the minor should'deed upon attaining majority. The land passed to M and the- bond was acquired by ’plaintiff. When the minor attained majority she desired not only to relieve the makers of the bond from liability, but, as well, to perfect the title of M, to whom the land had passed Plaintiff fraudulently induced her to make deed to him, representing that by so doing she would quiet the title of M. Held, the deed should be set aside.</p>

<p>Appeal from Keohuh District Court. — ITon. A. R. Dewey, Judge.</p> <p>The defendant is a mntu'al insurance company, and on the thirtieth day of October, 1893, it issued its policy to the plaintiff, for the term of five years, on certain property, including a frame dwelling house, which was, on the eleventh day of March, 1896, entirely destroyed 'by fire and this action is to recover therefor. The answer •admits the insurance and loss alleged, and shows that the defendant company is a mutual insurance company that can insure no person not a member of the association; that plaintiff 'became a member thereof at the time he received 'his policy of insurance in the way provided by its laws; that by article 12 of the constitution of the association it is provided: “Should any member fail to pay Ms assessment within thirty days from the date of notice of his assessment, his insurance in this association shall be null and void until such assessments are paid; but this provision shall not affect the liability of said member for such delinquent assessments, arid lalgO' for any dues and assessments which may be levied .for his share of any loss wMch may occur while such delinquent assessment is due and unpaid, or in course of collection.” It then appears from the answer that an assessment was made on plaintiff’s policy, payable October 1,1895, which became delinquent November 1, 1895; that he was notified of such assessment the twenty-seventh of September, 1895, by the same being sent to his postoffice address; that February 10, 1896, another assessment was made, and notice thereof given, which assessment became delinquent about March 15, 1896; and that the first of said assessments was delinquent when the loss occurred, because of wMch the policy was void. It is admitted that on the twenty-seventh of March, 1896, both of the assessments were paid. In a reply, plaintiff pleads an estoppel because of the making of the second assessment, and because of the acceptance of payment of the two assessments. The cause was tried to the court without a jury, and at the conclusion it dismissed plaintiff’s petition, and he appealed.—</p>

<p>Appeal from Wapello District Court. — Hon. F. W. Eichelberger, Judge.</p> <p>Action on a policy of fire insurance. Judgment for plaintiffs, and tbe defendant appealed</p>

— How. W. R. Green, Judge. Defendant was indicted, tried, and convicted of the crime of nuisance, and judgment rendered against him, from which he appeals.

— Hon. J. H. Apple-gate, Judge. The defendants, George Debolt and Walter Smith, were convicted of the offense of maliciously threatening to accuse another of the crime of sodomy with the intent thereby to extort money; and from the judgment, which required that they be imprisoned in the penitentiary at Ft. Madison for the term of one year, they appeal.—

— H on. Ben McCoy, Judge. Action in equity to restrain the defendants from, tearing down auid removing a fence. There was a hearing on 'the merits, and a decree in favor of the defendants. The plaintiff appeals.

<p>Appeal from Black Hawk District Court. — Hon. J. J. Tolerton, Judge;</p> <p>Plaintiff, the beneficiary named in a certificate of life insurance issued by the defendant on the life of Ira Christie, now deceased, brings this action for judgment, and for an order requiring the defendant to make an assessment to pay the amount alleged to be due under said certificate. The defendant answered, pleading as defense, in substance, a® follows: That this action is barred, for the reason that proofs of loss were not made within sixty days from the' date of the death, as required by section 3, chapter 211, Laws Eighteenth General 'Assembly; that there was another action pending between these parties, involving these «ame issues; that said certificate was forfeited by reason of failure to pay benefit assessments Nos. 34, 35, 38, and 40. The defendant also pleads two unsatisfied judgments, which it holds against the plaintiff, and asks that the amount thereof be set off against any amount found due the plaintiff. The plaintiff, in reply, denies that isaid assessments were legally made, and denies that Ira Christie was legally notified thereof, or that, by reason of nonpayment of said assessments said certificate was forfeited. The issues will more fully app ear in the opinion. Decree was rendered in favor of the plaintiff. Defendant appeals.</p>

<p>Appeal from Jasper District Court. — Hon. D. Ryan, J udge.</p> <p>On November 5,1892, plaintiffs filed their petition to quiet the title in 'them, to the southwest quarter of the southeast quarter of section 11, township 79, north of range 21, west of the fifth P. M., Iowa, making Samuel E. Brown, Alfred Sully, W. B. Smith, Rebecca Smith, Elizabeth Marte, and the unknown husband and children of Elizabeth Marte, and the legatees or devisees of the 'children of Elizabeth Marte, defendants. They alleged that they are the absolute owners in fee simple of said land, and are informed and believe that the defendants make some 'claim adverse to the plaintiffs thereto; that John Marte died April 1, 1869, leaving Elizabeth Marte, Ms widow, and some- children, surviving him; that on the twenty-third day of June, 1869, said Elizabeth Martz sold and conveyed said land to Peter Cragan, without reference to any children'; that on February 1, 1872, Cragan sold and conveyed the same to George B. Wood, who has since died, and from whom plaintiffs obtained title, being the only heirs at law of said Wood; that on October 14,1867, Alexander Kannady executed a mortgage on said land to defendants Brown and Sully, and on the same day another mortgage to defendants W. B. and Rebecca Smith, which mortgages were duly recorded. Defendants W. B. Smith and Rebecca Smith answered, denying each and every allegation made in plaintiffs’ petition, except those expressly admitted. “The defendants; admit that plaintiffs have some claim ortitlein the lands described, but aver the same is junior and' inferior in equity and to title of defendants.” By way of cross-petition they allege the execution to them by Alexander Kannady and wife of toe mortgage mentioned in toe petition, and allege that toe same is still due, and wholly unpaid, and pray that the same be established as superior to the claims of all the parties hereto, and that the same be foreclosed. Thereafter plaintiffs filed an amendment to their petition, alleging that said mortgage was without consideration, aud for the purpose of disposing of the property in a testamentary capacity; and that after-wards said Kanmady and wife rescinded the same by the execution of a warranty deed to said land to John Martz. Plaintiffs filed a second amendment to their petition in four paragraphs. In' the first they set out by reference the mortgage set out in the answer of these defendants. In the second they allege that Kannady died in October, 1883, and that the cause of action under said mortgage is barred. In the third they allege that said mortgage was released, satisfied, and discharged of record by W. B. Smith on the 'twenty-eighth of November, 1870, and in the fourth that these defendants are not entitled to relief, for the reason that 'the mortgage shows on its face that it is null and void, because, by its terms, it creates an estate to commence in the future; upon the death of the grantor, reserving to Mm its use; enjoyment, and' possession. These defendants moved to strike this amendment, on the ground that the matters set up were mo part of plaintiffs’ cause of action, are in avoidance of the matters alleged in the cross-petition, and could only be properly pleaded in reply .thereto. This motion was sustained, and thereupon plaintiffs replied, in substance as follows: That defendants’ mortgage covered two other tracts- of land than that in controversy, and that, after recording of 'the deed to Martz, and the subsequent conveyances thereof, these defendants, on the twenty-eighth of November, 1870, without the knowledge or consent of said grantors, released and canceled said mortgage so far as it covered the land in controversy, which land was worth six hundred dollars, whereby defendants’ rights under said mortgage have ■been postponed to and made junior and inferior to- the conveyances under which plaintiffs and their grantors held 'the land. They renew their allegation that defendants’ cause of action is barred, and allege that said claim was never filed, proven, or allowed against the estate of Alexander Kannady, and that the administrator of Kannady is a necessary party. Decree was entered in favor of the defendants W. B. Smith and Rebecca Smith, from which plaintiffs appeal.—</p>

<p>Appeal from Des Moines District Court. — Hon. James I). Smyth, Judge.</p> <p>Proceeding for the probate of a will. Objections on the ground® of in comp etency and undue influenc e. Verdict for proponent, and the contestant appealed.—</p>

<p>Appeal from Clinton District Court. — Hon. A. J. House, Judge.</p> <p>This is an action to recover damages for a personal injury to the plaintiff. At the close of the evidence for plaintiff, the court directed a verdict for the defendant, which was returned accordingly, and a judgment entered thereon. Plaintiff appeals.</p>

<p>Appeal from Clinton District Court. — Hon. P. B. W olee, Judge.</p> <p>The plaintiff is a physician residing at Clinton, Iowa. In December, 1891, one Denton Olney was a fireman in the employ of the defendant company, and was injured by his knee striking á switch target. Dr. Hobart, who was the company’s district surgeon at Clinton, was called to see Olney, and treated him for a short time, when, because the family was dissatisfied, he was discharged, and one Dr. Finley was employed. The condition of the patient became serious, and a brother of his went to Chicago and saw the chief surgeon of the company, Dr. Owens. Upon consultation, Dr. Owens telegraphed Dr. Fairchild, who was the company’s district surgeon at Ames, Iowa, to go to Clinton and see the patient, Olney, which he did. After an examination of the patient, and dressing his wound, Dr. Fairchild had a consultation with the plaintiff as to the treatment to be given, and the plaintiff rendered professional services until the case was discharged; and this action is for the value of such service. The theory on which it is sought to hold the defendant liable is that Dr. Fairchild employed plaintiff, on behalf of the company, and that the service was rendered in pursuance of such employment. The defendant presented a general denial, and also, by way of estoppel, pleaded that the said Olney brought a suit against the defendant company for his damage® because of such injury, which was tried in the United States circuit court, and claimed as a part of his damages the amount alleged to be due plaintiff in this suit, and recovered the same, and that plaintiff was a witness in that suit, and gave testimony showing the service rendered, and the value thereof, for the purpose and object of enabling Olney to recover therefor. The issues were tried to a jury, that returned a verdict for plaintiff, and from a judgment thereon the defendant appealed.</p>

— Hon. W. B. Quarton, Judge. Action on a note and account, and to establish a mechanic’s lien. The district court gave judgment for' plaintiff on the note and account, but only partial relief as to the lien sought, and the plaintiff appealed.—

P. B. Wolfe, Judge. Action in equity to r estrain the collection of a tax levied to pay for the improvement of a street. There was a hearing on the merits, and a decree in favor of the plaintiffs. The defendants appeal.

<p>1 Insurance: appraisement: Condition precedent. An appraisement and award is a prerequisite to the maintenance of an action on an insurance policy unless such appraisement is waived or submission and award prevented by the company, where the policy provides that the ascertainments and estimates shall be made by the parties, or if they differ, by the appraisers, and that the loss shall not be payable until sixty days after the award of the appraisers has been rendered.</p> <p>2 Same: Right of assured to appraisement. An insured has the right to insist that if an appraisement of the amount of damages provided for by the policy is made it shall embrace all property claimed by him to be covered by the policy, although the company denies that it is so covered.</p> <p>2 Waiver. A condition in an insurance policy making an appraisement a prerequisite to the bringing of a suit on the policy is waived where the company refuses to permit an agreement of submission to áppraisements to be so changed, as to embrace certain property claimed by the insured to be covered by the policy, although the company denies that such property is within the policy.</p> <p>3</p> <p>Of proof of loss. Proofs of loss are waived by an insurance company where the secretary of the company, empowered to waive such proofs, leads the insured to believe that he has done all in that respect that is required and promises an early payment of the loss.</p>

— Hon. George W. Wakefield, Judge. Action to enjoin the defendant county from gelling certain lands in the beds of Round and Dry Lakes. Decree for defendants. Plaintiffs appeal.

— Hon. H. M. Towner, Judge. Action in equity for an accounting, and to recover of the defendant C. E. Gardner, fifteen thousand dollars on account of poor investments made by Mm as cashier of the plaintiff bank. There was a hearing on the merits, and a judgment in favor of the defendants for costs. The plaintiffs appeal.

<p>Appeal from Muscatine District Court. — Hon. A. J. House, Judge.</p> <p>Action at law to recover damages for personal injuries sustained by plaintiff while driving along one of the streets of the defendant city, — due, as is alleged, to a defect therein for which defendant is responsible. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.</p>

— Hon. F. R Gaynor, Judge. The parties are husband and wife. The defendant owned certain lands, and, desiring to convey the same to third parties, agreed with his wife (plaintiff) to pay to her the sum of two thousand dollars if she would join in the deed, so as to convey her contingent right.

<p>Appeal from Black Hawk District Court. — Hon. A. S. Blair, Judge.</p> <p>The defendant is the owner of lots 6, 7, and 8, in block No. 5, Jackson Taylor’-s addition to the city of Cedar Falls. These lots front on State street, which runs north and south. Number 8 is the lot lying north and it borders on Thirteenth street, which runs east and west. Lots 7 and 6 are south of No. 8, and in the order named. It is made to appear from the petition that defendant has long used and occupied a house on lot No. 8, and that, of late, he has moved the same house onto lot No. 6, and has placed a foundation thereunder, and is about to bring said lot to a level of the street in front thereof, which is State street. It is further made to appear that across said lot 6 there is a natural depression, through which water has always flowed from higher land, lying to the north and west of said lots, to lower lands south of them; that the land to the north and west, drained by the depression, is about forty acres; that defendant has placed his house directly in the path of the water course; and that the completion of his work will obstruct the flow of the water along said course, and turn it back into the street, and onto the premises of the owners of many lots, and thereby create a public and private nuisance, to the damage of the plaintiff and others; and it is asked that the defendant be enjoined from making said obstruction. The answer admits most of the averments of the petition, but denies the conclusions pleaded, and it pleads other facts, some of which may be noted in the opinion. On the trial the court dismissed - plaintiff’s petition, and it appealed.</p>

— Hon. Z. A. Church, Judge. Election contest for the office of county attorney. From judgment declaring the incumbent entitled to the office, the contestant appeals.

<p>Appeal from Hamilton District Court. — Hon. D. E. Hindman, Judge.</p>

— Hon. B. P. Birdsall, Judge. Appeal from an order made on application of Mrs. H. J. David, owner of certain property in the town of Alden, for rebate of liquor tax, in wbicb proceeding John Hoskins, a mortgagee, intervened. The district court denied the application, and Mrs. David and Hoskins appeal.

— Hon. L. E. Eeldows, Judge. Plaintiff, a citizen and resident of Winneshiek county, Iowa, brings this action to enjoin the defendants from maintaining a certain place in said county described, for the sale and keeping for sale of intoxicating liquors.

Ajpeal from Dallas District Court. — Hon. J. H. Apple-gate, Judge. This is a proceeding asking for the construction of the will of John Moran, deceased. The will is in the following language, so far as it is important for the purpose of this proceeding: “Will of John Moran. Before these present, I will and bequeath to Patrick Moran five hundred dollars of money. I will and bequeath to William Toomey nine hundred dollars of money.

— Hon. M. A. Roberts, Judge. Action at law, in which plaintiff, a® a deputy marshal of the city of Chariton, seeks to recover compensation for services as a peace officer in arresting certain vagrants in Lucas county. The trial court sustained- a demurrer to his petition, -and he appeals.—

— Hon. A. N. Hobson, Judge. Action at law to recover the value of a horse, killed by a locomotive engine of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant .appeals.

— Hon. Scott MLadd, Judge. This case is submitted on appellant’s' abstract and argument alone, there being no appearance by the appellee.

— Hon. S. M. Weaver, Judge. Action at law to recover the value of horses and other property placed in a car of the defendant for transportation over its railway, and never delivered. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. D. Ryan, Judge. Suit to partition certain real estate belonging to the estate of Martin Pfaff, deceased. The trial court dismissed plaintiffs’ petition, and they appeal.—

— -Hon. W. H. Ted-ford, Judge. Action for partition of certain land. Decree that plaintiff is the owner of the undivided one-third part of said land, and that the defendant is the owner of an undivided two-thirds part of said land, and confirming said respective shares, and ordering partition. The defendant appeals.

<p>1 Pleading: repetition: Judicial notice. The court will grant a motion to strike out an answer when the matter contained therein is the same in substance as the allegations in former answers to which demurrers have been sustained, although it contains a preliminary statement withdrawing all former answers and amendments. The court still takes judicial notice that the withdrawn pleadings stated matter, vulnerable to demurrer.</p> <p>2 Interest: judgments. Interest may be allowed on a judgment for costs and attorney's fees, from the date of the entry of the judgment (Code 1878, section 2078), citing Parker v. State, 35 Ñ. E. Rep. (Ind.) 1105; Galbraith v. Walker, 95 Pa. 481; Hayden v. Hefferan, 58 N. W. Rep. (Mich.) 59; Linek v. Litchfield, 31 111. App. 104; Palmer v. Glover, 78 Ind. 532; Bates v. Wilson, 18 Colo. 287; Emmitt v. Brophy, 42 Ohio St. 82.</p>

— Hon. W. H. Tedeord, Judge. This is a proceeding to obtain a construction of the will of Joseph Glose, deceased. The trial court held that a certain legacy to W. T. Glose was specific, and had been adeemed before the testator’s death. The legatees appeal.

— Hon. W. F. Brennan, Judge. Defendants’ demurrer to plaintiff’s petition being' overruled, and defendants electing to stand upon their demurrer, judgment was entered against John, Anna, Henry, and William Teege and their guardian, O. T. Nelson, for two hundred and twenty-one dollars and thirty-one cents, and costs. Defendants appeal.—

— Hon. J. J. Tolerton, Judge. Plaintiff brings this action to recover one thousand three hundred and fifty dollars and fifty-five cents, with interest, a balance alleged to be due on account for wire… Held: to be sold under a junior and inferior lien, whereby said collateral security became and was wholly lost, and is now valueless, to the damage of the defendants in the sum of four thousand dollars.

— Hon. J„ J. Tolerton, Judge. Action at law to recover for the alleged wrongful arrest of the plaintiff in proceedings intended to punish him for an alleged contempt of court. The defendant Weasel demurred to the petition on two grounds. The demurrer was sustained as to the first ground, and overruled as to the second. The plaintiff elected to stand on his petition as to Wessel, and as to him the cause was dismissed by the court. The plaintiff appeals. — •

Ben McCoy, Judge. Action at law to recover the possession of specific personal property. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. The defendants appeal.

— Hon. M. J. Wade, Judge. Action at law for an 'alleged! wanton and malicious assault. Defendants denied the .alleged .assault, amid pleaded 'that whatever they did was in self-defense; and other matters which might be considered in mitigation of damages. Trial to a jury. Verdict and judgment for plaintiff, and defendants appeal.

— Hon. William Gr. Thompson, Judge. Application for rebate of tax levied under the pro* visions of what is known as the “Mulct Law.” A tax of six hundred dollars was levied by the board of sup-ervisiors of Linn county at its regular September meeting against the plaintiff and the property in which they were doing business-. At the time of the levy, plaintiffs had on file a petition for the rebate of the tax for the months of January, February, and March.

— Hon. W. B. Quarton, Judge.. Action to set aside sheriff’s sale and deed on the ground that the land sold contained a homestead exempt to the judgment debtor. Relief denied, and plaintiffs appeal.

Appealfrom Carroll District Court. — Hon. S. M. Elwood, Judge. Action in equity against John Wasmund to recover the amount of certain promissory note®, for the foreclosure of a-mortgage given to' secure their payment, and for other relief. O. M. Mohler intervened, claiming to be the owner of one of the notes which the mortgage was given to secure, and demanded judgment for the amount due thereon, and asked that it be decreed a first lien upon the mortgaged premises.

— -Hon. Frank W. Eichelberger, Judge. • The defendant was convicted of the larceny of a swarm of bees, and from the judgment, imposing a fine of five dollars, he appeals.

— Hon. John F. Oliver, Judge. Suit in equity to enjoin the collection of, and to set aside, a judgment. From a decree dismissing plaintiff’s petition^ it appeals.

— Hon, F, R. Gtaynor, Judge. Action in equity to set aside a certain deed of conveyance, and to determine the amount and order of priority of the claims of creditors of the Pacific Short-Line Bridge Company who are parties to this action.

<p>Appeal from Linn District Court. — Hon. W. P. Wolf, Judge.</p> <p>Action in equity to restrain the sale on execution of certain real estate. Decree for plaintiff. Defendants appeal.</p>

<p>Appeal from Poweshiek District Court. — JHon. D. Ryan, Judge.</p> <p>Indictment for embezzlement. Verdict of guilty, and a judgment of imprisonment, from which the defendant appealed.</p>

— How. W. B. Quarton, Judge. Creditor’s bill to subject certain real estate, the legal title to which is in defendant John Pollock, to the payment of a judgment held by plaintiff against James G-. Grieve. Defendants pleaded that the conveyance of the land from Grieve and wife to Pollock was intended as a mortgage to secure Pollock for money loaned, and denied all fraud in the transaction. The trial court dismissed the petition, and plaintiff appeals.

— Hon. M. A. Roberts, Judge. Plaintiff, the owner of lot 2 and west half of lot 3, block 8, George’s First addition to Albia, prosecutes these actions for the possession of, and to be quieted in the title to, a strip of land about twelve feet wide, east and west, and eighteen rods long, north and south, which she claims to be a part of her said lots, on the west side thereof.

— Hon. P. W. Bure, Judge. The defendant was convicted of assault and battery, and from a judgment imposing a fine of twenty-five dollars fie appeals.

- — How. Gr. W. Burnham, Judge. On April 9,1892, the defendants C. M. and Elizabeth Buck executed to plaintiff a mortgage on certain real estate in Marshalltown, Iowa, to secure an indebtedness due from them. This instrument was duly recorded April 11, 1892.

— Hon. W. B. Quarton, Judge. • The petition shows that Charle® Baker killed, in Palo Alto county, twelve adult wolves, and one cub wolf in August, 1893; that in September, 1893, Baker filed his bill in the office of the county auditor of said county, showing him to be entitled to. the bounty on said wolves, as provided by law; that he produced the whole skin of each of the thirteen wolves to the county auditor, who destroyed the same, by burning them; that the county auditor…

— Hon. George W. Wakefield, Judge. Action at Law to recover the amount of an alleged policy of life insurance. There was a tidal by jury, and ■a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. S. M. Ladd, Judge. The two cases entitled as above, involving the same issues, were tried together in the lower court, and will be disposed of as one in this court. They are suits in equity brought by two judgment creditors of F. Tea-bout and Teabout & Valleau to subject .certain .real estate, the title to which is in Angie Vallean, to the payment of these judgments, on the ground that said Valleau held the title in trust for the benefit of Teabout.

<p>Appeal from Harrison District Court. — Hon. F. E. G-ay-nor, Judge.</p> <p>From au order striking the main item of damages from plaintiff’s petition, he appeals.-</p>

— Hon. Z. A. Church, Judge. These cases were submitted and will be considered together. The matters involved are SO' intimately related that they, in effect, present but one cause. The facts will be found in the opinion.. There was a decree and judgment below for defendants. Plaintiff appeals.

— Hon. W. B. Quarton, Judge. Action a,t law to recover damages for failure of title to certain land deeded by defendant to plaintiff in settlement of a claim held by him; to recover compensation for earth and gravel taken from plaintiff’s land, and used by the county in building approaches to its bridges; for trespass upon his land; and for taking certain lands for use as a public highway without compensation.

Appeal f rom, Woodbury District Court. — Hon. Scott M. Ladd, Judge. Action for judgment on three promissory notes, and for a decree foreclosing three mortgages on separate pieces of real estate, given severally each to secure one of said notes.

<p>Appeal from Polk District Court. — Hon. T. F. Stevenson, Judge.</p> <p>Action in equity to enforce specific performance of a contract to convey real estate. Decree for defendant. Plaintiff! appeals.</p>

— Hon. G. W. Burnham, Judge. In June, 1895, W. W. Doolittle made an assignment for the benefit of 'his creditors with J. L. Carney, as assignee. Held: as collateral security for her debt, certain corporation stocks, on which she realized three thousand and forty-eight dollars and thirty-eight cents. This was in January, 1896.

<p>2 Insurance: forfeiture: Ineffective mortgage. A chattel mortgage covering property insured is not such an authorized incumbrance . as will avoid the policy, when it was given to obtain money to take up a prior mortgage and discharged eight days later, upon the mortgagee’s failure to raise the amount of the loan it was intended to secure.</p> <p>1 Action: after appointment of receiver. An action may be maintained against an insolvent incorporation notwithstanding the appointment of a receiver, when it has not been enjoined by the court from the exercise of its corporate powers, and the receiver is not a necessary party to the action, and when no relief is asked against him.</p>

— Hon. F. R. Gay-nor, Judge. Action at law to recover the possession of real estate .and damages for its detention. There was a trial by the court, without jury, and a judgment in favor of the defendant. The plaintiff appeals.

— Hon. C. P. Holmes, Judge. Action for damages for failure to sell and deliver certain shares of stock. Trial to jury. Verdict and judgment for defendant. Plaintiff .appeals.—

-^Hon. S. M. Elwood, Judge. Suit in •equity to rescind and set aside a contract for the exchange of real estate because of fraud, or to reform the contract because of mistake, and to recover the remainder of the consideration due on the instrument as reformed. The trial court decreed reformation and awarded damages as prayed, and defendants appeal.

— Rots. William GK Thompson, Judge. The following .are the material averments of the petition as amended: The plaintiffs are the children and heirs of Christopher Sigmond, deceased, who died testate December 10,1894, seized of about one hundred and seventy-two acres of land, which included a homestead of forty acres.

— Hon. W. B. Quahton, Judge. On April 18,1895, the plaintiff filed his petition for judgment on a promissory note, and three interest coupons attached thereto, and for foreclosure of a mortgage on real estate given to secure said notes, which notes are, in substance, as follows: The principal note was executed.

— -Hon. Lot Thomas, Judge. Action at law to recover for professional services rendered by an attorney. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

<p>Appeal from Poweshiek District Court. — Hon. D. Ryan, Judge.</p>

<p>Cinfracts: public policy: Consideration. Two persons weiv. engaged in selling intoxicating liquors under acts Twenty-fifth General Assembly, chapter 62, known as the “mulct law.” A note for the price of the interest of one of them contained the clause “if payor is obliged to abandon his present business on account of change in the liquor law by the next legislature of the state, then this note to be void; otherwise to be full of force.” Held, that the words “present business” meant the business he then had, and that, said business being a legal business, the note was not invalid, as being a “gambling, wagering contract,” and that it was supported by a valid consideration.</p>

— Hon. W. B. Quarton, Judge. Action to compel the board of supervisors of Palo Alto county to levy a tax from, which to pay plaintiff’s judgment against said county. The defendants interposed the defense that an appeal had been taken to the supreme court, though no supersedeas bond had been filed. A motion for judgment having been sustained, and judgment entered as prayed, the defendant’s appeal.

— Hon. T. M. Giberson, Judge. This is a habeas corpus proceeding in -which plaintiff and appellant alleges that he was unlawfully l estrained of his liberty by defendant, who is sheriff of Linn county, under a warrant of commitment issued by one Ball, a justice of the peace in and for said county, in pursuance of a judgment of conviction for violation of what is familiarly known as the “Anti-Cigarette Law.” Plaintiff says that his commitment was and is illegal, for the…

— Hon. S. M. Elwood, Judge. Action at law to recover an amount alleged to be due on a contract for the sale of real estate. When evidence had been fully submitted, a verdict for the plaintiff was returned by direction of the court, and a judgment was rendered thereon. The defendant appeals.—

<p>Insurance: forfeiture: Concealment. To avoid liability under a policy of insurance providing that it shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning the insurance or the subject thereof, or if he has not truly stated his interest in the property, it is not sufficient to show that there were mechanic’s liens on the property at the time the policy issued; it must also appear that there was some independent concealment in respect thereto.</p> <p>Service of proof of loss: Recording agent. The service of proofs of loss upon the recording agent of the insurer, who issued the policy in suit, is sufficient. Citing McCullough v. Ins. Co. (Mo.) 21 S. W. Rep. 207.</p>

Ajpjpeal from Ceclar District Court. — Hon. W. P. Wole, Judge. ■ ■ Action at law to recover damages for maliciously destroying a cattleway claimed by plaintiff under a highway bridge in Cedar county, Iowa. There was a trial to jury. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. Z. A. Church, Judge. Action upon a written contract to recover commissions for the sale of real estate. Defendant answered, admitting the execution of the contract, and alleging that it was without consideration; that plaintiff failed to perform his part, and that a full settlement had been made with plaintiff.

<p>Appeal from Appanoose District Court — Hon. F. W. Eichelberger, Judge.</p> <p>Application for temporary writ of injunction, which was denied, and plaintiff appeals.</p>

— Hon. T. F. Stevenson, Judge. Action in equity to establish and enforce a mechanic’s lieu. There was a decree below for plaintiff. Defendant appeals. The facts will 'be found in the opinion.

— Hon. T. F. Stevenson, Judge. This appeal is by the plaintiffs from a judgment overruling their demurrer to the second count of defend-i ant’s answer. The averments in the pleadings and the grounds of demurrer, will appear in the opinion.—

— How. W, H. Tedeord, Judge. The plaintiff and defendant are father and son; the plaintiff being father. Two- cases are consolidated for trial, and the parties (the plaintiff and defendant) are the same in each case. Prior to' August 18,1891, plaintiff was the owner of one hundred and ninety acres of land, and about that time he made to defendant a deed for one hundred and thirty acres, and to a daughter a deed for sixty acres.

ippeal from Van Burén District Court. — Hon. F. W. Eiohelberger and Hon. M. A. Boberts, Judges. The plaintiffs are creditors of John W. Fry, who made an assignment, February 3, 1894. He executed a mortgage to his wife, January 1, previous, securing the payment of three thousand dollars, and' this action was brought to set aside such mortgage as fraudulent. Decree for defendants, and plaintiffs appeal.

— Hon. k. W. Wilkinson, Judge. Action against defendants for the value of a. stock of goods alleged to have been converted. Decree for defendants, and plaintiffs appeal.

— Hon. G. W. Burn-ham, Judge. Action at law to recover the statutory penalty foi selling intoxicating liquor to one Otto H. Fielding, a minor. Defendant La Grange pleads that he is a registered pharmacist, holding a permit, .and denies that he made sales as claimed. The case was tried to a jury, and at the conclusion of the evidence, plaintiff moved for a ver dict in the sum of seven hundred dollars. This motion ivas sustained and judgment entered upon tbe verdict.

— Hon. Scott M. Ladd, Judge. ' Action in equity to foreclose a mortgage, and for other equitable relief. A demurrer to the petition was filed and overruled, and from that ruling the defendant, Douglas, appeals.

— Hon. W. F. Conead, Judge. January22,1884, other parties executed a lease to a certain lot in the city of Des Moines, Iowa, to- which lease the parties to this suit have succeeded in interest, the plaintiff as lessor, or party of the first part, and the defendant as lessee, or party of the second part, and a consideration of the ease does not require a reference to other parties.

— Hon. W. D. Tisdale, Judge. The plaintiff entered into a written contract for the sale of one hundred) and forty-eight and two-thirds acres of land to the defendant at the price of twelve dollars and fifty cents per acre. The purchase price was to draw interest -at-the rate of six per cent, per annum, payable annually, and two-thirds of it was to be paid within five years.

<p>Appeal from Tama District Court.- — Hon. Gr. W. Burn-ham, Judge.</p> <p>This is an action at law f or judgment on six promissory notes executed by the defendants to. the plaintiff. Defendants filed an answer in two counts, an “amended answer” in three counts, an “amendment' to amended answer” in three counts, an “additional amendment to amended .answer” in four counts, and at the close of the evidence an “.amendment to. their answer” in four paragraphs, which last amendment the court struck from the files. These several pleadings, are of great length, covering about fourteen closely printed pages, and so abound in repetition that it is. difficult to. gather therefrom the precise defense relied upon. The court might very properly have required the-defendants to file .a substituted answer, and thereby avoid the confusion that arises from these numerous amendments. The defendants admit the execution of the promissory notes sued upon, and, as we gather from their answer and amendments, allege the following defenses.: That the defendant Nettie Ghown is the daughter of the plaintiff, and wife of the defendant O. D. Ghown, and that the amounts represented by said notes were given to the defendants as advancements made by the plaintiff to Ms daughter under an agreement that the same were to stand as an advancement to her out of the estate of plaintiff; that said promissory notes were executed long after said advancements were made, and under an agreement that they were to stand as mere receipts to show the amount of said advancements. As another defence it is • .alleged that, in consideration of said advancements, and that the said amounts should stand as such, and said notes as mere receipts therefor, defendants agreed to take and keep the plaintiff during his life, and make a home for him, and that in pursuance of said agreement defendants. moved' from their home in Western Iowa, to West Irving, Tama county, at the request of the plaintiff, and at great expense to defendants, and 'did keep and care for the plaintiff, and are now, and always since have been, willing to do so, but that shortly before the commencement of this1' suit, plaintiff, without cause, left the home of defendants; that defendants are willing to carry out their part of said conract. As a defense to the note for one thousand dollars, identified as Exhibit B, defendants allege that in October, 1889, the plaintiff purchased certain real estate in Tama county, and had the title made to his said daughter; that he paid part of the purchase money for said land, which was intended as an advancement to his said daughter, and that long after, at plaintiff’s request, defendants executed said note simply to show the -amount of said advancements, and that defendants took and retained possession of said land. Defendants alleged that said several agreements were partly oral and partly in writing, the written portion consisting of letters, which letters 'are lost or destroyed, or in the hands and under the control of the plaintiff. Defendants, by way of counter-claim, ask to- recover one thousand dollars for board, lodging and washing furnished to the plaintiff during the years 1889 to-1893, inclusive. Plaintiff’s demurrer “to first and second counts of defendant’s amendment to amended answer as amended, and to original answer, and to the first, second, and third counts of amended answer,” was sustained. Plaintiff, in reply, denies every allegation of said answer as amended, except expressly admitted. He admits that defendant furnished him with board, and did part of his washing during a part of the year 1889, and all of the years 1890 to 1893, inclusive. He avers, that the board and washing done in 1889 was for him as a member of defendants’ family, and in consideration of the use of plaintiff’s house, in which the family resided, and labor .and services performed by the plaintiff for defendants. Also., that the board, lodging, and washing done during 1890 to. 1893, inclusive, was by virtue of a special written contract set out The case was tried to a jury, and a verdict.returned for the defendants upon their counter-claim in the sum of five hundred dollars, and in favor of the plaintiff for one thousand seven hundred and twenty-five dollars. Defendants’ motion for a new trial being overruled, judgment was entered upon the verdict, from which the defendants appeal.</p>

— Hon. Gr. W. Burn-ham, Judge. Action at law to recover for injuries to the plaintiff’s intestate, which caused hisi death, .and which are alleged to have been the result of negligence on the part of the defendant. When the evidence on the part of the plaintiff had been- fully submitted, the jury, by direction of the court, returned a verdict for the defendant, and judgment was rendered in its favor for costs. The plaintiff appeals.

— Hon. W. F. Conrad, Judge. The defendants, except the treasurer of Polk county, constitute the city council of Des Moines, Iowa.

— Hon. S. M. Weaver, Judge. The plaintiff, a citizen and resident of Marshall county, Iowa, and wife of John Carrier, filed her petition, in two counts, to recover from the defendants for alleged sales of intoxicating liquors made by them in said county, in a place described, to her said husband.

— Hon. W. P. Wolf, Judge. Action to recover for services rendered and expenses incurred under .a written contract set out. Defendant .answered, joining issues, and setting up a counter-claim, which, counter-claim plaintiff denied. Verdict .and judgment were rendered in favor of the plaintiff. Defendant appeals.

— Hon. H. M. Towner, Judge. The plaintiff conveyed to the defendant one hundred and forty acres of land August 28, 1898, and this action is brought to recover the balance of the consideration. Judgment for plaintiff, and defendant appeals.

<p>1 Betaxation of Costs. Where a party makes a motion to retax the costs in the trial court, it is not governed by Code, 1873, section 3154, relating to proceedings to reverse, vacate, or modify judgments in the court in which rendered, but by section 2944, relating to retaxing costs, as the claim is not that the judgment should be reversed or modified, but that, the costs were improperly taxed by the clerk, and this applies to costs adjudged upon dismissal of an action by plaintiff.</p> <p>2 Time for application. A motion to retax costs under Code 1873, section 2944, may be made at any time before laches or equitable limitation has intervened, since no limit has been placed by statute upon the time for such a motion</p> <p>2-Bule applied. A motion to retax costs, made the second term of court after judgment was rendered, does not show laches.</p> <p>3 Witness: pees. Witnesses who are not subpoenaed or sworn are not entitled to fees for attendance, under the statute, although they attend at the request of one of the parties.</p> <p>3 Same. Witnesses who are not subpoenaed are not entitled to mileage under the statute, although they testify in a case.</p>

<p>Contracts; lotteries. That the subscribers for lots, which were to be divided, or apportioned among them in such manner as they should decide, made the apportionment by drawing lots, does not prevent the promoters, who did not participate in or suggest the manner of the apportionment, from enforcing the contract entered into by a subscriber, for the lot drawn by him.</p> <p>Rule applied. Certain lots contracted for by the promoter of a packing house plant, were subscribed for under an agreement to take the number set opposite the name of each subscriber, if the packing house was secured. The lots were to be apportioned in such manner (as subscribers) may decide. At a meeting called by the promoters to divide the lots by “method * * * to be decided upon by a vote of the subscribers,” the plan of one of the promoters was adopted; the other promoters taking no actual part, and all having announced that they left the method of the apportionment to the subscribers The subscribers’ names were drawn out of one box, and the numbers of the lots to correspond were drawn out of the other, by two of the subscribers agreed upon. None of the lots were worth more than the price paid. Held, that the apportionment of the lots was by the subscribers alone, and the method was not a lottery, within the meaning of Code 1873, section 4043, constitution, article 3, section 38, prohibiting lotteries.</p>

<p>Justice of the Peace: appeal: Remittitur. Plaintiff in an action in a justice’s court may at any time before judgment reduce his claim below the amount essential to the appellate jurisdiction of the district court, and the error of the justice in rendering judgment for a larger amount does not confer appellate jurisdiction upon the district court.</p>

— Hon. J. L. Hus ted, Judge. The defendant obtained judgment against A. Goldberg and B'lumenthal & Goldberg, and, on November IB, 1891, caused execution to be issued thereon; later levied on the goods in controversy. Though duly served with- notice of plaintiff’s ownership, the sheriff sold the good's, and this action is brought for damages resulting from their conversion. Trial to jury. Judgment for plaintiffs, and defendant appeals.

— Hon. W. F. Conead, Judge. Action for judgment on a promissory note, and for decree foreclosing a mortgage on certain real estate given to secure said note. The Iowa Loan & Trust Company was made defendant, as claiming some interest in the property under a mortgage which plaintiff alleges is junior to her mortgage.

— Hon. P. B. Birdsall, Judge. Action to. recover on a policy of insurance issued by the defendant to the plaintiff, insuring personal property contained in a certain duelling house in the city of Fort Dodge against loss or damage by fire in the sum of one thousand dollars.

— Hon. William Gr. Thompson, Judge. Helen Farrar began an action for divorce against ber husband, T. S. Parrar, December 28, 1894, and decree was entered as prayed, February 5, 1895, allowing ber one thousand dollars as alimony. Thereafter the plaintiff moved the court for an order on her attorney, requiring him to pay over such amount, which she alleged he had collected.

— Hon. William F. Brannan, Judge. Action at law to recover fees taxed by plaintiff — a justice of the peace — in certain -actions, wherein the defendant wag plaintiff, and certain poll-tax delinquents were defendants. The trial court -directed a verdict for defendant, -and plaintiff appeals.

Polk District Court. — Hon. Thomas E. Stevenson, Judge. Action to recover upon an agreement in writing for the delivery of merchandise. The defendants allege a mistake in the agreement, and ask that it be corrected. The action was tried as in equity, and a decree was rendered in favor of the defendants. The plaintiff appea Is.

Appealfrom Polk District Court. — Hon. T. P. Stevenson, Judge. Polk county filed with the administratrix of B. P. Kauffman, deceased:, a claim for the sum of one thousand one hundred and thirty-three dollars and forty-four cents, for taxes alleged to have been levied on the personal property of the decedent. Judgment in favor of administratrix, and the county appeals.

— Hon. G. W. Burn-ham, Judge. Issues were joined between the plaintiff, a creditor of W. A. Inscho, and J. L. Bracken, garnished as a supposed debtor to said Inscho'. The garnishee moved for a verdict, which motion was sustaine0d, -and a verdict return for the defendant, and judgment for costs rendered against plaintiff. Plaintiff appeals.

— Hon. B. P. Birdsall, Judge. Action at law to recover the possession of real properly and damages for its detention. 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.

— Hon. C. P. Holmes, Judge. Action at law upon a promissory note, commenced in justice’® court. In.the district court a motion to dismiss the cause on the ground that a sufficient appeal bond had not been filed was overruled, the cause was tried by the court, and a judgment was rendered in favor of the plaintiff. The defendants appeal.—

— Hon. W. B. Quarton, Judge. Action for damages on shipment of stock. Trial to jury, and verdict for the plaintiff. Tire motion of the defendant for new trial was sustained, and that for judgment on the answers to special interrogatories overruled. The defendant appeals.

— Hon. M. J. Wade, Judge. Action to recover damages for -the alleged speaking of certain false, malicious, and defamatory words, in March, 1894, in the presence of Thomas Jordan, James Evans, J. W. White, and others. Defendant answered, denying generally. The case was tried to a jury, and a verdict of one thousand three hundred dollars rendered in favor of the plaintiff. Defendant moved for a new trial, upon the ground, among others, that the damages were excessive.

W. F. Conrad, Judge, Action .to quiet title against two- judgments in favor of the defendant. Decree was entered on the cross-petition of the defendant, establishing such judgments as liens on the plaintiff’s lot, and he appeals.—

— Hon. W. B. Quarton, Judge. Action to recover possession of a promissory note and the mortgage securing it. There was a trial by jury. Verdict and judgment for plaintiff-s. Defendant appeals.

— Hon. Lot Thomas, Judge. Action at law to recover the 'amount due on a promissory note. There was a trial by jury, and a judgment against the Commercial State Bank, from which it appeals'.

<p>2 Tender. A transcript of the record of a case tried before a justice of the peace, which recites au offer of judgment made by the defendant to the plaintiff, need not show that the plaintiff was in court when the offer was made, since it might be given to an attorney or agent acting for the plaintiff in the prosecution of the suit</p> <p>1 Record: pa rol variance. A record of the proceedings before a justice of the peace, which shows an offer by the defendant, made in writing, to confess judgment in favor of the plaintiff for a certain sum, can neither be supported or contradicted by affidavit.</p> <p>2 Rule applied Under Code section 38'8, requiring the offer to confess judgment, after action is brought before a justice, to be made in the presence of plaintiff, or after notice to him that it will be made, the transcript of the justice need not expressly show that the plaintiff was present when sucli offer was made. If it appears from the record that an offer was made as contemplated or this is the necessary inference from the language employed, it is sufficient; and, if the record is silent, parol evidence is admissible to show the offer.</p> <p>3 Appeal Certificate. A question certified to the supreme court, which involves an examination of the record and the proceedings of the lower court, will not be considered, as the certificate must set out the very point to be dertermined.</p>

— Hon. S. M. Elwood, Judge. Action to quiet title to certain real estate. There was a cross-petition by defendant. Upon the hearing, there was a decree for plaintiff. Defendant appeals.—

— Hon. M. A. Roberts, Judge. Action at law to recover damages1 for the use and occupation of a part of plaintiff’s landi The trial court sustained a demurrer to the plaintiff’s1 petition, and he appeals.

— Hon. M. J. Wade, Judge. Plaintiff is administrator of the estate of on e Lloyd P. Connor, deceased, and brings this action to recover of defendant damages for the death of said intestate, caused, it is charged, by the negligence of said railway company. Among other 'defenses set up was that defendant had fully settled and paid the claim for the death of said Connor. The cause was brought on for trial before a jury.

— Hon. S. M. Elwood, Judge. Prior to August 10, 1893, John H. DeWolf was engaged in business at Vail, Iowa, a part of which business was the operation of a private bank, known as the Citizens’ Bank.

— Hon. F. B. Gaynor, Judge. Plaintiffs bring this action upon two promissory notes, executed by the defendant the Northwestern Water & Light Company. These notes were secured by certain -shares of stock of said water and light company, which were deposited with plaintiff.

— Hon. T. M. Fee, J udge. Defendant was indicted for'the crime of an assault with intent to commit murder. He was convicted of an assault with intent to do a great bodily injury, and from the sentence imposed appeals.

Appealfrom Buchanan District Govrt. — Hon. A. S. Blair, Judge. The defendant was accused and convicted of the crime of conspiracy. From judgment of imprisonment in the penitentiary, he appeals,

— Eon. G-eorge W. Wakefield, Judge. The defendant was indicted and convicted of the crime of murder in the first degree, and from judgment of imprisonment for life he appeals.

— Hon. Robert Sloan, Judge. The following statements of the issues and facts made by appellants’ counsel are conceded to be substantially correct, and are sufficiently so for tbe purposes of the questions to be considered: “This action was commenced in the district court of Wapello county to recover on five promissory notes, each dated January 24,1887, one for one hundred and fifty dollars, due two years after date, one for one hundred and fifty dollars, due three years…

— Hon. John 0. Sherwin, Judge. Indictment for maintaining a nuisance. Yerdict of guilty, and judgment thereon, from which the defendant appealed.

George W. Wakeeibld, Judge. The defendant (appellant) Belle Baldwin filed her cross-petition against Nelson T. Burroughs and others, asking an accounting between her and N. T. Burroughs; that a conveyance of the real estate described, by Byron H. Evers to Byron C. Evers, be declared fraudulent and void; that a certain judgment claimed to be owned by her be declared a first lien on said real estate; and that the same be subjected to the payment of said judgment.

<p>Appeal. A judgment will be affirmed when the record fails to present sufficient information to enable the court to intelligently consider the assignments of error.</p>

<p>Trial de novo. Where all the questions to be considered in a trial de novo in equity, by the appellate court, involve a consideration of the evidence, and the abstract of record shows that all ihe evidence is not contained therein, the decree of the lower court must be affirmed.</p>

- — Hon. W. R. Green, Judge This is a proceeding in probate to establish a claim on two promis sory notes against the estate of W. E. Durham, deceased Issues were formed, and a trial had thereon; and, at the conclusio 1 of the evidence, the court, on motion of plaintiff directed a verdict in his favor, from which the defendant appealed.

— HoiS L. B. Bellows, Judge, Action in equity to enjoin defendants from selling certain real estate at tax sale. Decree for defendants. Plaintiff appeals.—