Volume 105 — Iowa Reports

— Hon. T. M. > Fee, Judge. Action in equity to recover an amount alleged to be due, and to establish, and enforce a mechanic’s lien. There was a hearing on the merits, and a decree for the plaintiff. The defendants appeal.

<p>Appeal from Scott District Court. — Hon. P. JB. Wolfe, Judge.</p> <p>Proceedings in probate for the purpose of ascertaining the amount of a collateral inheritance tax. The district court approved an appraisement of property of the decedent, and directed the payment of the amount of inheritance tax fixed in the report of the appraisers. The administrator of the estate appeals. —</p>

— Hon. T. M. Fee, Judge. Suit in -equity to- enjoin the sale of real estate under a general execution. Plaintiff claim’s that there was ho valid judgment upon which an execution could issue, and that whatever claim defendants may have had has been paid. The trial court dismissed the petition, and plaintiff appeals.

There was an application to this court by plaintiff for a writ of certiorari commanding the defendants to certify up certain proceedings on their part, of which complaint was made. The writ issued, return was made thereto, and it is upon this record we are required to pass. —

— Hon. F. B>. Gaynor, Judge. This is an action to foreclose a mechanic’s lien. Davis, one of the defendants, holds two mortgages on the premises, both made before the material was furnished for which the lien is sought. He also took a deed for the land after plaintiff’s right accrued. Sophia G. Sterling, the former owner, who deeded to Davis, and various mechanic’s lien claimants, are .also made .defendants.

— Hon. W. B. Quarton, Judge. The defendant was accused and convicted of the crime of larceny, and from judgment of imprisonment in the penitentiary he appeals. —

The defendant was accused and convicted of the crime of burglary, and, from judgment of imprisonment in the penitentiary for -a period of eighteen months, he appeals. —

— Hon. P. B. Wolfe, Judge. Action at law to- recover for ■damages' alleged to •have' resulted from negligence on the part of the defendant which caused the death of the plaintiff’s intestate, Clem L. Morbey. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals. —

<p>Limitation of Aetions: statute. The running of the statute of limitations against a judgment recovered in 1863, at Which time the law authorized an action to be brought on a judgment at any time within twenty yeais was not stopped by Code 1873, section 2521. providing that no action shall be brought on any judgment in a court of record within fifteen years after its rendition without leave of court, and section 47, providing that all previous act revised in such Code or which are repugnant to its provisions are repealed, subject to the limitations therein expressed, and section 50, providing that the repeal of existing statutes shall not affect any right which has accrued in any civil cause before the time when such repeal taires effect.</p>

<p>Appeal from Davis District Court. — Hon. F. W.Eichel-BERGER, Judge.</p> <p>Action on a policy of fire insurance. Judgment for plaintiff, and defendant appealed. —</p>

— -Hon. A. E. Dewey, Judge. Action in equity to subject certain real estate to a judgment rendered on account of a liquor nuisance. There was a hearing by the court, and a decree in favor of the state, from which the defendant, J. H. Mateer, appeals. —

— Hon. W. H. Ted-ford, Judge. Action at law commenced in justice’s court. A judgment was rendered by that court in favor of the plaintiff; an appeal was taken; .and the judgment was affirmed by the district court. The defendant appeals'.

— Hon. A. R. Dewey, Judge. This is a habeas corpus proceeding, in which, plaintiff alleges that he is illegally restrained of his liberty by the defendant, who as sheriff of Keokuk county, is holding him under and by virtue of a bench warrant issued by the district court of Keokuk county. The trial court remanded the petitioner, and he appeals.—

— Hon. P. B. Wolee, Judge. Dependant was indicted, tried, and convicted of having, on the twenty-eighth day of October, 1894, feloniously seduced and debauched one Charlotte Kelly, an unmarried woman, of previously chaste character. Judgment was entered against him that he pay a fine of one thousand dollars, and be imprisoned in the county jail for a term of one day; also for costs. Defendant appeals. —

— Hon. P.B. Wolfe, Judge. Plaintiffs sue to recover insurance upon the life of one Joseph Seiler, deceased. Two actions were brought, each upon ia different policy. The action® were consolidated, in the trial court. Defendant made one answer to the two claims, as combined. There was a trial to a jury, verdict and judgment for plaintiffs, and defendant appeals. —

— Hon. W. F. Bean-nan, Judge. Action in equity to enjoin the delivery and colection of three promissory notes executed by plaintiff to defendant Davies, and placed in the possession of defendant Keck, and to cancel the same; also, to recover two thousand dollars, money paid by plaintiff to defendant Davies.

— Hon. A. J. McCrary, Judge. Action to quiet the title of lot 1, in block 8, in the city of Keokuk. De'cree us prayed', and -defendants appeal.

<p>Larceny: dog. A dog is the subject of larceny, being comprehended in the term “chattels,” as used in Code, 1873, section 3902, defining such crime.</p>

— Hon. P. W. Burr, Judge. Action to recover a balance alleged, to be due as rent on a piano. Defendant answered, claiming that he held the piano under a chattel mortgage during the time for which rent is claimed. The issues and facts appear in the opinion. Judgment was rendered dismissing plaintiff’s petition, and she appeals. —

— Hon. B. P. Birdsall, Judge. This is a proceeding, under section® 440 to 446, inclusive, of the Code of 1873, to' strike certain territory out of the limits of the defendant city.

— Hon. Benjamin P. Birdsall, Judge. Action at law upon the covenants of a deed. Defendant denied any breach of the covenants save as to one item, which he averred a readiness to pay. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals. —

— Hon. N.W.Maoy, Judge. Plaintiff seeks to recover the sum of nine hundred and twenty-nine dollars and forty-sis cents for hogs and cattle sold the defendant. The answer admits the purchase of said live stock ,at the price named, but avers that the price was settled for at the time by bank checks, which plaintiff held an unreasonable time before presenting for payment, and that the bank upon which they were drawn became insolvent.

— Hon. W. F. Conrad, Judge. Indictment for obtaining property by false pretenses. Verdict of guilty, and a judgment thereon, from which the defendant appealed. —

— Hon. William F. Be,annan, Judge. Action at law to recover the possession of specific personal property. There was a trial by the court without a jury, and a judgment for the plaintiff. The defendant appeals. —

— Hon. W. F. Conrad, Judge. Action to forclose a chattel mortgage on a stock of goods owned by the Lathrop-Ehoads Company, and to establish a lien on certain accounts assigned to secure the debt, and to establish the priorities of lienholders.

— Hon. W. F. Conrad, Judge. Action at law to recover of the defendant an amount alleged to be due on capital stock of the Zoological Park Company of Des Moines, Iowa. There was a trial by the court without a jury, and a judgment in favor of the plaintiffs. The defendant appeals.—

— Hon. A. it. Dewey, Judge. The plaintiff brought this action upon a judgment of the district court of the state of Nebraska. Defendant made default, and judgment was rendered against him. Thereafter, by petition, he set up that he had been prevented by unavoidable casualty and misfortune from appearing and making defense, and prayed that the default and judgment be set aside.

— Hon. M. J. Wade, Judge. Indictment for larceny. Trial to jury, and a verdict of guilty. Defendant filed a motion in arrest of judgment, which the court sustained, and the state appealed.

— Hon. M. J. Wade, Judge. Action at law upon a promissory note made and executed by defendants, F. H. and Frank Novak. Defense, false and fraudulent rep res entatio ns and breach of warranty in the sale of a stallion for a part of the purchase price of which the note was given. Defendants also plead a counter-claim for breach of warranty. Trial to a jury. Verdict and judgment for plaintiff, and defendants appeal. —

— Hon. John J-Ney, Judge. Leonard W. Healey, Hugh Eobbard, and James Kent are accused in the indictment of having murdered Theodore Frith, April 14, 1893. The defendant Healey had a separate trial, and, upon conviction, was sentenced to imprisonment in the penitentiary for life. He appeals. —

— How. P. B. Bird-sall, Judge. The defendant was convicted of the crime of cheating by false pretenses, and from judgment sentencing him to imprisonment in the penitentiary for three years he áppeals. —

— Hon. W. F. Conrad, J udge. Action,at law on a judgment rendered against tbe Zoological Park Company of Des Moines, Iowa, to recover of the defendant, on account of capital stock of the company at one time owned by hipa, on which he is alleged to be liable as for unpaid -stock. There was ,a trial by the court without a jury and a judgment in favor of the plaintiffs. The defendant appeals. —

— Hon. W. H. Tedeord, Judge. Action by plaintiff to quiet the title to eighty acres of land, and the same relief was ashed by defendants in their cross-petition. Decree was entered quieting title in the plaintiff, and defendants appeal. The second action was brought to enjoin the defendants from interfering with the possession of the plaintiff’s' tenant, and a decree entered as prayed, from which defendants appeal.

— Hon. F. H. Gaynor, Judge. Action to establish title and for specific performance of an oral contract to convey land alleged to have been made with D. M. Mills in his lifetime. This relief was denied, and, as prayed in her cross-petition, the distributive share ordered set apart to Jane T., the widow of D. M. Mills, intermarried since with Charles McCaustland. Plaintiff appeals. —

— Hon. J. H. Macomber, Judge. This is an action to quiet 'the title to certain lands iri Oalhoun county. There was a decree for plaintiff in the court below, and defendants appeal —

— Hon. P. W. Burr, Judge. Suit in equity to quiet title to certain land used by tbe plaintiff a® a right of way and 'depot grounds within what is now the incorporated town of Britt. The town answered, 'denying the ownership in plaintiff of certain strips of land crossing the said right of way and depot grounds; claiming that these strips were dedicated to and accepted by the town a.nd the public as streets and alley®.

— Hon. A. N. Hobson, Judge. Plaintiff sued to recover upon a promissory note •which fell due July 24,1896. The original notice served on the defendant April 23,1896, stated that the petition would be on file on June 1, 1896. The petition was not in fact filed until June 3d. -On October 13th following, defendant moved to dismiss the action because the petition was not on file at the time stated in the notice.

— Hon. L. E. Eel-lows, Judge. Action in equity to recover .an amount alleged to be due on a promissory note, .and to- have established and foreclosed an equitable mortgage on land. There was a hearing on the merits, which resulted in the dismissing of the plaintiff’s petition, and the plaintiff appeals. —

— Hon, W. B. Quarton, Judge. Action in equity to restrain toe sale under execution of land alleged' to be a boonestead. 'A demurrer tQ the petition was overruled, and,'the defendants having refused to plead further, a decree was rendered in favor of the plaintiff. The defendants appeal. —

<p>Appeal from Lyon District Court. — Hon. Soott M. Ladd, Judge.</p> <p>Action upon a contract of guaranty. Defendant Bradley admitted the execution of an instrument of guaranty to plaintiff, but claims a mistake therein in so far as it related to any pre-existing indebtedness of the principal, and further says that the contract was obtained through fraud and misrepresentation as to its contents. He prayed for a reformation of the instrument and a dismissal of the petition. The case was transferred to the equity side of , the calendar, and tried to-the court, resulting in a judgment for plaintiff. Defendant Bradley appeals.—</p>

— Hon. P. W. Burr, Judge. Action in equity to restrain the defendants from filling or obstructing a water course within the corporate limits of the plaintiff. There was a hearing on the merits, and decree for the plaintiff. The defendants appeal —

<p>1 Lis Pendens: notice: In October, 1893,plaintiff sued, to subject certain land to a judgment. The following December term an entry was made in the appearance docket, “Settled as per stipulation (not filed!” which entry was made without knowledge of the parties, and was^ not discovered and corrected until May, 1896, when plaintiffs’ motion to cancel the entry was sustained. In February, 1896, plaintiffs filed a trial notice, reciting that the cause would be called at the March (erm, which was entered on the appearance docket. The cause was continued March 5th at request of defendants, by án entry, ‘‘Continued by agreement of parties.” Inter-vener purchased the property in dispute on March 7, 1896, in good faith and for value, relying upon the December entry, that the cause had been settled. It does not appear that plaintiffs were negligent in not sooner discovering said entry. Held, that the subsequent action by plaintiffs, reinstated the case, and it being-before intervener’s purchase, was constructive notice of plaintiffs’ rights therein, under Code, 1873, section 3628, providing that when a petition has been filed, affecting real estate, the action is pending, so as to be notice thereof to third persons.</p> <p>2 Negligence oe agent. The failure of an agent who, as clerk of the district eouit, could have easily ascertained whether an action affecting the property he was employed to buy had been dismissed, as appeared by the records, or was still pending, must be imputed to his principal, who must be held to have due notice of the rights of plaintiffs therein at the time of the purchase from defendants.</p>

District Court. — Hon. George W. Wakefield. Judge. Plaintiff brought this action against the defendants, his co-partners, doing 'business under the name of Abroad Milling Company, alleging that said co-partnership was insolvent, and praying that its affairs be wound up and a receiver appointed. By consent of said co-piartners, E. II. Parch was appointed receiver, and proceeded to settle the affairs of said co-partnership under the orders of the court.

<p>Appeal from Howard District Court. — Hon. A. N. Hob-son, Judge.</p> <p>Suit in equity for the specific performance of a contract for the sale of real estate. Defense, unisoundness of mind and incapacity of the vendor, O’Brien. Trial to the court. Decree for plaintiff, and defendants appeal.—</p>

— Hon. A. W. Wilkinson, Judge. These cases involve the same issue. They were tried together below, and are so submitted here. The plaintiffs are devisees of different tracts of land in Adair county, under the will of one John Craig, deceased, and as such they bring these actions to quiet their respective titles. The defendant claims to be the widow of said Craig, and entitled to the one-third part of said real estate.

— Hon. Lot Thomas, Judge. Plaintiff’s amended and substituted petition is it six counts, which, with the answers thereto, are, in substance, as follows: In the first she alleges: That on January 5, 1892, she was the owner of the 1 west one-half of section 2-93-84, Pocahontas county, Iowa.

— Hon. W. R. Green, Judge. Action in equity to restrain the vacation of a highway Avitliin the limits of the incorporated town of Gray. There was a hearing on the merits, and a decree in favor of the plaintiff. The defendants appeal. —

<p>2 Mechanic’s Lien: actions in rem. An action to foreclose a mechanic’s lien, where no personal judgment is asked, is a proceeding in rem.</p> <p>1 3 Notice bt publication: Adjudication upon. Code, 1873, section 2618, subdivision 5, provides that jurisdiction may be obtained of a defendant on service by publication “in actions brought against nonresidents of this state, or a foreign corporation, having in this state property or debts owing to such defendant, sought to be taken by any of the provisional remedies, or to be appropriated in any way.” Held, that a subcontractor, who holds an open, unliquidated account against the principal contractor may bring an action against the owner to foreclose his lien, and, in the same action have adjudicated the amount of his claim against the principal contractor who is served, only by publication, with notice of the action.</p> <p>5 Right oe subcontractor. Where the contract between the principal contractor and an owner was that the owner was to pay for the work and material as the building progressed, and the owner knew that a subcontractor was furnishing material for the building, and that he was not being paid by the principal contractor, if the owner settles with the principal contractor who flies his statement of lien in due lime, without holding back enough to pay the subcontractor, the latter will be entitled to his lien therefor.</p> <p>Burden of proof. A subcontractor seeking to foreclose a mechanic's lien has the burden of proving wbat was due the principal contractor at the commencement of such subcontractor’s account, or at the time the notice of lien was served.</p> <p>6 Mistake in statement. Where the statement for a mechanic’s lien, by an honest místate, which harmed no one, was for a greater sum than was due, it does not defeat the lien.</p>

— Hon. J. F. Clyde, Judge. Henry Zemke is a son of the 'defendant. Defendant was manied in Milwaukee in 1871 or 1872, and went to live in Nora Springs, Iowa; and after two or three months, there was a .separation, and his wife went to Milwaukee, Wis., where Henry was born October 11, 1873. Within two or three years, defendant was -divorced from hi-s wife, and married 1 again.

— Hon. H. Bank, Jr., Judge. Action to: recover upon a policy of life insurance issued by the 'defendant on the life of L. May Johnson, upon her application in writing therefor. Defendant answered, alleging among other things that certain statements made in said application as true, and upon which defendant relied, were false, fraudulent, and untrue, and known to. said applicant, at the time they, were made, to be false, fraudulent, and untrue.

— Hon, D, Ryan, Judge. . This is an action to recover damages for the alienation by defendant of the affections of plaintiff’s wife. There was a verdict and judgment, for plaintiff, and defendant appeals. —

— Hon. H. Bank, Judge. Action in equity to enjoin the maintaining of a trolly pole in front of the dwelling house of the plaintiffs. A demurrer to the petition was sustained, and judgment was rendered in favor of the defendant for costs. The plaintiffs appeal. —

— Hon. N. W. Macy, Judge. Action for damages occasioned by the negligence of defendant. Trial to. jury, verdict and judgment for plaintiff, and defendant appeals. —

— Hon. William E. Brannan, Judge. The plaintiff is the assignee of Nebergall Bros., and the defendants are assignees of A. A. Ball & Go., both firms having made assignments for the benefit of creditors.

— Hon. John A. Story, Judge. Creditors’ bill to subject certain real estate standing in the mame of S. C. Johnston, to- the payment of a judgment hold by plaintiff against Johnston & Frush and Joseph Johnston. The trial court subjected the property to- the payment of the judgment, and defendants appeal. —

— -Hon. H. M. Remley, Judge. This proceeding was instituted, primarily, to annul the letters of administration issued in said estate to the defendant B. King. The district court adjudged the appointment of King void, and canceled his commission. From this judgment the defendants appeal. There was also an appeal by plaintiffs from another branch of the court’s order, to which further reference will be hereafter made. —

— Hon. J. H. Apple-gate, Judge. The plaintiff and defendant executed the following agreement in writing: “Articles of Agreement between the Butterick Publishing Co., Limited, and C, JD. Bailey, of Adel, Iowa. This agreement, made this 24th day of April, 1894, between the Butterick Publishing Co., Limited, of the first part, and G. I).

— -Hon. F. W. Eich-elberq-ek, Judge. Action in equity to reform a contract for the shipment of cattle, and to recover damages, for an alleged breach thereof. Decree was rendered reforming the contract in on'e of the particulars prayed, and judgment entered dismissing plaintiff’s petition. Plaintiff appeals. —

— Hon. T. M. Fee, Judge. Action to recover rents and profits of certain lands. The defendant alleged he held possession of one tract under a judgment and decree establishing it as a lien, and ordering- the sale thereof, and asked that the rents and profits derived therefrom be applied in satisfaction of the judgment. This relief was denied and he appeals. —

— Hon. George. W. Wakefield, Judge. Action at law to recover the -amount due on two promissory note®. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiff appeals. —

— Hon. H. M. Towner, Judge. Action for damages for a breach of contract to furnish, set, and care for trees. The cause was submitted to the court without a jury, who gave judgment for the 'plaintiff, and the defendant appealed. —

— Hon. N. W. Maoy, Judge. Suit in equity to recover for the use and occupation of land, to restrain the defendants from selling or removing the crops growing thereon, and to' establish a lien for the amount of the judgment upon said crops and the other personal property used upon the premises.

— Hon. George W. Wakefield and Hon. John F. Oliver, Judges. These three cases were submitted together, and on the same record. The first was tried before Hon. George W. Wakefield. Wold & Olson asked for judgment on account against Laura D. Stoltenberg, and the petition was aided by a writ of attachment levied upon the distributive share of the defendant in the estate of Herman Berkholtz, deceased, and rents thereon, duly garnished.

— Hon. Scott M. Ladd, Judge. Action to recover judgment in the sum of two thousand, nine hundred .anid twenty-five dollars and sixty-nine cents, with interest -and attorney’s, fees, upon a promissory note executed by the defendants to- the plaintiff. The .defendants each admitted the execution of said note.

— Hon. A. B. Thornedl, Judge. Action at law to recover amounts' alleged to be clue on two fire insurance policies-. The actions., by agreement of parties, were tried and submitted together.

— Hon. Walter I. Smith, Judge. Creditors bills to subject certain real estate, the legal title to which is in the name of Otha and Andrew Wearin, to the payment of judgments against Harry Wearin. The trial court dismissed the plaintiffs’ petitions, and they .appeal. —

— Hon. N. W. Macy, Judge. Reimer Doerscher died about October 17, 1892, leaving as his widow the defendant, Anna Doerscher. Before and at the time of his death Reimer Doerscher owned certain premises, which he and his wife occupied us their homestead; and his wife occupied the same thereafter, by herself, or by others in her stead, until the house was destroyed by fire.

— Hon. Lot Thomas, Judge. Plaintiff seeks in this action to have a deed executed by himself and wife to defendant declared a mortgage. Defendant filed a cross, hill, making plaintiff’s wife also a defendant therein, and prayed that he be decreed the absolute owner of the r eal estate in question, and that Ms. title thereto be quieted. Plaintiff’s wife, by pleading filed, ¡sets up a right of homestead. There was a trial to. the court, and a decree in defendant’s favor.

— PIon. James D. Smyth, Judge. In 1889, A. A. Adams, with a capital of seven thousand dollars in money and merchandise, which F. O. Adams had paid him for his interest in the estate of A. G. Adams, deceased, begun business at Burlington as a retail dealer in boots and shoes, and continued therein until November 20, 1894.

— Hon. J. F. Oliver, Judge. The plaintiff is the surviving widow of C. C. Orr, deceased, who died February 12,1893. On tire fifteenth day of July, 1891, C. C. Orr and wife executed to A. J. Moore, as trustee for Hornick, Hess & Moore, a warranty deed for certain premises; and Moore, for tbe purchase price, -executed to C. C. Orr twenty notes, and a mortgage on tbe conveyed premises to secure their payment.

— Hon. Walter I. Smith, Judge. Action 'in equity for judgment on. Due promissory note executed by the 'defendants C. J. and Annie W. Colby to Kimball-Ohamp Investment Company, and for decree foreclosing a mortgage on real estate executed by said Colbys to secure the same. The issues and facts appear in the opinion. Judgment and decree were rendered ini favor of the plaintiff. Defendants appeal.—

— Hon. William G. Thompson, Judge. The defendants executed to plaintiff a promissory note, of -which the following is a copy: “$600.00. Marion, Iowa, March 1, 1895. On or before three years after date, for value received, I promise to pay F. R. Fox or order six hundred dollars, payable annually, at the rate of seven per cent per annum until paid; interest, when due, to become principal, and draw seven per cent, interest.

— Hon. A. B. Thor-nell, Judge. Action at law to recover amounts alleged to be due on two promissory notes. There was a trial by jury, ,and verdict and judgment for the defendant.' The plaintiff appeals, —

<p>Appeal from Carroll District Court. — Hon. Z. A. Church, Judge.</p> <p>Action on the guaranty of a promissory note. Judgment for plaintiff and defendant appeals. —</p>

<p>Appeal from Marshall District Court. — Hon. G-. W. Burnham, Judge.</p> <p>Suit in equity to prevent defendants from secreting their stock book and ledger, and from putting any obstacle in the way of the plaintiff’s examining the same, and to compel defendants to deliver said books for inspection; to compel defendants to post up in their place of business the amount of stock paid in, the amount subscribed, the amount of the indebtedness of the corporation, a copy of its by-laws, and the names of its officers; and for damages for the denial of plaintiff’s right to inspect the books. In addition to a denial and certain affirmative defenses, which need not be specifically mentioned, the defendants made a tender or offer to confess in these words: “That without conceding the 1 legal right of the plaintiff to see the books and the statutory posted matter, and without confessing any of the allegations of the petition, but affirming all the allegations in the answer heretofore filed, states that, in view of the fact that all litigation between the parties hereto has been settled, the defendants now here tender to -said Boardman the right to examine the copy of the stock book and see the statutory matter posted, all of which is on exhibition at the principal office of the defendants-, in Marshalltown, Iowa, and offer to pay all costs of suit up to this time. Wherefore defendants ask to be discharged with their costs.” The case was tried to the court, resulting in a decree dismissing the plaintiff’s petition, and taxing all the costs made prior to the filing of the offer to confess, to defendants, and all costs made subsequent to that time to the plaintiff. Plaintiff appeals. —</p>

— Hon. Charles D. Goldsmith, Judge. The plaintiff is the administrator of the estate of John Lonsdale, deceased, who> died April 26, 1892.

— Hon. W. Gr. Thompson, Judge. Action at law to recover damages for the death of plaintiff’s intestate, due, .as is alleged, to the failure of defendant to properly or sufficiently light its roundhouse, to negligence in the construction of the house, in that the pits therein were placed in too close proximity to the door; and to failure to properly guard and protect the pit. The defendant filed a general denial, and pleaded contributory negligence.

— Hon. T. M. Fee, Judge. On January 23, 1895, the plaintiff bank filed, a claim against the estate of D. O. Robinson, deceased, of which the defendant is administrator, for the sum of eight hundred and twenty-one dollars and thirty-three cents, with interest thereon at eight per cent, after June 2, 1890. This claim was based upon a promissory note executed by said intestate to the firm of Powell Bros., and duly assigned to plaintiff. The administrator refused to allow it.

A^pjpealfrom Keokuk District Court. — Hon. A. R. Dewey, Judge. Trial to jury, verdict .and judgment for contestant. A petition for a new trial, filed by proponent, was granted, and contestants, appeal —

— Hon. S. M. Elwood, Judge. Action in equity to have set aside certain tax deeds, and for permission to redeem from certain tax sales. There was a hearing on the merits, and a decree, which was afterwards modified. The plaintiff and the defendant J. H. Bradt appeal, the appeal of the plaintiff having been first perfected. —

— Hon. A. B. Thornell, Judge. The following statement of the issues made by .appellants’ counsel is conceded to be substantially correct: “Plaintiff originally, on July 10,1895, filed a petition in three counts, but before trial he dismissed count 2, and on the trial, after resting, dismissed cout 3 thereof, so that the issues are contained in count 1 of plaintiff’s petition, the answer of defendants, and 1 , the reply of plaintiff.

— Hon. Gr. W. Burnham, Judge. Action at law to recover damages for an alleged libel written of and concerning the plaintiff, resulting in his discharge from employment by the Oedar Rapids & Marion City Railway as a conductor upon its lines, and for loss of time and injury to reputation and means of support. Defendant admitted the writing of the alleged libel, and averred that it was both justifiable and privileged.

— Hon. G. W. Burnham, Judge. Action to recover five hundred dollars for personal injuries caused by .a defective plank sidewalk. Defendant answered, denying generally. The case was tried to a jury, and a verdict in favor of the plaintiff for three hundred dollars, together with certain special findings, returned.

— Hon. A. S. Blair, Judge. Action on alleged oral promise to pay the note of another. Verdict and judgment for defendant, and the plaintiff appeals. —

— Hon. G. W. Burnham, Judge. An action for libel. The basis of the action is a letter written from Belle Plaine, Iowa, to Charlés Kipp, of Pennsylvania. It appears from the petition that plaintiff is an attorney at law of some twenty years’ standing and that the letter was falsely and maliciously published of and concerning him. The objectionable part of the letter is as follows: Belle Plaine, la., March 26,1894. “Charles Kipp — Dear Sir: Your favor of the 24th at hand.

— Hon. J. F. Clyde, Judge. The petition of plaintiff sets out a cause of action as follows: In April, 1889, there stood against plaintiff on the records of the court in Floyd county, a judgment in favor of the Hawkeye Insurance Company for about the amount of sixty dollars, and also a judgment in favor of the Floyd County Savings Bank for an amount approximating two hundred dollars.

— Hon.S.M. Weaver, Judge. The following is appellant’s statement of the facts and the issues.

— G. W. Burnham, Judge. Action at law to recover possession of certain real estate, and damages for its detention and use. At the close of the evidence, a verdict was returned for the defendant, by direction of the court, and judgment was rendered in his favor for costs. The plaintiff appeals. — -

— Hon. A. B. Thornell, Judge. Action in replevin to recover the possession of a promissory note. The note is for five thousand dollars, .and was executed by plaintiff to. Nellie M. Roberts. Plaintiff claims that it was obtained from him without consideration, through fraud and duress, and is therefore void. Defendant interposed what was in effect a general denial. The ease was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. —

— Hon. Z. A. Church} Judge. The plaintiff purchased, of the defendant Silbaugh all his right, title, and interest in a certain invention, with the right to use, manufacture, and sell in Minnesota, and, in consideration therefor, executed four notes of five hundred dollars each. He seeks in this action to enjoin the defendants from negotiating said notes, and to have them brought into court and canceled. Decree was entered for defendants, and plaintiff appeals.—

— Hon. Z. A. Church, Judge. This is an action to recover for a balance of rent due under a lease; for damages alleged to have been done to the leased property by defendant; for the cost of water-supplied to said premises; and also for the use made by -defendant of plaintiffs barn. The answer contains a general -denial.

— Hon. N. W. Macy, Judge. Action to recover two thousand, five hundred dollars balance claimed to be -due for one hundred and ninety-six “Better Way corncutters;” alleged to have been sold and -delivered by the plaintiff to the -defendant under a written contract -set out in the petition. The defendants -answered, -admitting the execution of the written contract -set out, the receipt of the corncutters, and denying every other allegation in the petition.

— Hon. O. Caswell, J udge. Action at law on a bond given to: secure the payment of money. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal.

— Hon. W. R. Green, Judge. Action for the foreclosure of -a. mortgage on real estate, and- to adjudge defendants’ interest in the land junior to the mortgage lien. There was a decree for plaintiff, and the defendants appealed. —

— Hon. J. J. Tolerton, Judge. Suit in equity for an accounting between plaintiff, who is executor of the will of John F. Miller, deceased, and defendant, who at one time acted as administrator .of the estate of mid John F. Miller, under appointment from the district court of Black Hawk county. The trial court gave plaintiff judgment for two thousand, fifty-six dollars and sixty cents, and both parties, appeal.

— Hon. T. F. Stevenson, Judge. Action to declare certain mortgages, and. an ■assignment for the benefit of creditors, fraudulent. Decree dismissing the petition, and plaintiffs appeal. — ■

— Hon. H.M. Towner, Judge. Plaintiee brings this action to recover damages of defendants for the alleged wrongful conversion of certain personal property of which he claims to be the owner. There was a jury trial, verdict and judgment for defendants, and plaintiff appeals. —

— Hon. John F. Oliver, Judge. Action at law to recover the possession of specific personal property. There was a trial by jury and a verdict and judgment for the plaintiff. The defendant appeals. —

— Hon. William Gr. Thompson, Judge. Action at law to recover rent alleged to be due for ' leased' premises, and for damages. The defendants pleaded a counterclaim. There was a trial by jury, and a verdict and judgment for1 the defendants. The plaintiff appeals. —

— Hon. J. H. Applegate, Judge. Action by plaintiff to foreclose a mechanic’s lien on a part of a lot in Bevington, Warren county. The Sieg Iron Company also brought suit to foreclose' its mortgage, executed by John and Julia A. Otto, and this ■action was consolidated with, that of plaintiff, and a cross-petition filed by said company, asking for the same relief. The defendants pleaded, among other thing®, that plaintiff’s action was barred by the statute of limitations.

<p>1 Homestead Rig-lit: actual occupancv. Plaintiff purchased a lot, and began the erection thereon of a house, for his home. The homestead then occupied by him was then sold, and during the building of the new house he resided in a rented one. Some articles were removed to a shed on the new premises, and plaintiff cultivated a garden there, but the greater part of the household goods were moved into the rented house. On completion, the family moved into the new house, and used it as a homestead. Held, that the homestead character attached only from actual occupancy of the premises.</p> <p>2 Exemptions. The homestead character attaches to a lot purchased for a homestead from the time the purchaser disposes of his former homestead using the proceeds thereof to pay for the new homestead although at that time there was no house upon the lot, but the exemption from debts accruing- prior to such occupation is limited to the extent of the value of the old homestead under Code, 1873, section ¿000, authorizing the owner to change the limits of the homestead or to “change it entirely” with the concurrence of the husband or wife, and section 2001, exempting the new homestead to the extent in value of the old from execution in all cases where the old homestead would have been exempt; and the homestead may be sold subject to such exemption if it appear that the debtor’s other property has been exhausted in satisfaction of the debt.</p> <p>3 Change. Independently of a change a homestead right will not attach as contemplated by Code, 1873, section 2000, to a lot purchased for a homestead until the occupation of the house erected thereon, although prior to the time the owner had commenced the construction of a house to replace that removed from the lot when he purchased it, and had sold his former homestead</p>

— Hon. W. F. Brannan, Judge. Suit in equity to. enjoin a sale oí real estate under execution, and to set aside and annul certain proceedings wherein defendant M. B. Drake was awarded execution against the property of George W. Fulliam, 'deceased. The trial court sustained a demurrer to' the petition, and denied the injunction asked, and plaintiffs appeal. —

James D. Smyth, Judge. The defendant, Emma M. Burnham, is the executrix of the last will and testament of Mary M. Poole, ■deceased, who died, leaving plaintiff as surviving husband. Mary M. Poole died, leaving an estate of about eighteen thousand dollars, consisting entirely of personal property. She died, testate, leaving to her husband a bequest of one hundred dollar's in lieu of all statutory provisions in his favor.

Des Moines District Court. — Hon. James D. Smyth, Judge. Suit in equity to declare a judgment held by plaintiff a lien upon certain lands, the legal title to which is in defendants Joyce, Hamilton, Campbell, and Evans, and to subject said land to the payment of the judgment.

— Hon. A. S. Blair, Judge. ^Action at law on a judgment rendered by a district court in tlie state of North. Dakota. At the close of the evidence the plaintiff asked the court to' direct a verdict in her favor, which was done, and a verdict was returned as directed, upon which a judgment was rendered in favor of the plaintiff. The defendant appeals.—

Lot Thomas, Judge. Plaintiffs are judgment creditors of Henry Hanks, and they bring this action in equity to- subject bis interest in certain real estate to tbe payment of their claim. The decree below was in plaintiff’s favor, and defendants appeal.—

— Hon. C. M. Waterman, Judge. Action to foreclose plaintiff’s mortgage, executed by John A. and Lydia A. Purinton. The defendant Foster alleged in Ms answer that he held judgments against John A Purinton which were liens on the mortgaged property, that plaintiff’s mortgage was fraudulent, and prayed it be declared inferior io the lien of his judgments. Decree for plaintiff, and defendant Foster appeals. —

— Hon. B. P. Birdsald, Judge. Action in equity to recover an amount alleged to be -due for drilling and casing a well, and for the foreclosure of a mechanic’s lien therefor. There was. a hearing on the merit®, and a decree for the plaintiff. The defendant appeals. —

— Hon. J. L. Husted, Judge. Action to recover three hundred and eighty-three dollars, with interest, balance alleged to be due under a written contraction grading, curbing, and guttering one of defendant’s streets, the amount claimed being for a balance for grading. The defendant answered denying that anything was due for grading, and alleging that the grading done had been paid for. ■ The issue© will more fully appear in the opinion.

— Hon. William P. Wolf, Judge. Action to recover the value of certain property wrongfully sold; on. execution. The cause was tried to a jury, that returned a verdict for plaintiff' for two hundred and sixty-one dollars and forty-seven- cents, .-and, from a judgment thereon, both parties appealed.

<p>Appeal from Pottawattamie District Court. — PIon. A. B, Thornell, Judge.</p> <p>Action to quiet title. Decree for plaintiff and defendant appeals. —</p>

— Hon. W. F. Conrad, Judge. Action at law upon five promissory notes. A writ of attachment was issued, and levied upon -a stock of goods belonging to the defendant. Thereafter, a a receiver was appointed, and the goods were sold by order of court. Defendant admitted the execution of the notes, and pleaded a counterclaim for the wrongful suing out of the attachment. Trial to' a jury. Verdict and judgment for plaintiff, and defendant .appeals.—

— Hon. T. M. Giberson, Judge. Plaintiff brought this action to recover of the defendants G. A. Miller & Sons the sum of six hundred ■dollars, and caused an attachment to issue therein, under which the Benton County Savings Bank of Norway was garnished, as a supposed debtor to the defend.ants G. A. Miller & Sons.

— Iiox. W. A. Spurrier, Judge. Indictment for subornation of perjury. Verdict of ■guilty, and a judgment thereon, from which the defendant appealed. —

— -Hon. William Gr. Thompson, J udge. Plaintiff is- the owner of a lot in the city of Cedar Rapids which the two railway companies that are defendants herein have taken, through condemnation proceedings, for depot purposes. The .defendants appeal from- the award made by the -sheriff’s jury. —

— Hon. T. F. Stevenson, Judge. Action at law, aided by an attachment, to recover rent for the use of agricultural lands. The defendant pleaded certain payments, and a, counterclaim for work and1 labor done, property furnished,. and other ■miscellaneous item®.

— Hon. F. R. Gaynor; Judge. Action in equity to determine and to quiet the title to certain lands in Harrison county as, between the parties to this action. Decree was rendered dismissing plaintiff’s petition, from which he appeals. Decree was also rendered against the defendants, John H. Noyes,. W. A. Robinson, and Douglas, Stamper, from which they appeal. — Action to quiet title, and a decree from which the plaintiff and certain defendants appealed. — Reversed.

-Hon. T. F. Steven- . ■ son, Judge. • This is an action■ commenced August 14, 1895, on two promissory notes secured by mortgage, and asking judgment and decree of foreclosure. September 16,. 189.5 (it being the seventh day of the term), upon legal notice given, a default was entered, and judgment and ' decree given accordingly.

<p>Appeal from Van Bnren District Court. — Hon. T. M. Fee, Judge.</p> <p>Action upon, a promissory note and to- foreclose a mortgage securing it on a lot in Keosauqua. There was a default of all defendants save Irish and the Keosauqua Lumber Company, who set up' a mechanic’s lien as against plaintiff. Upon a hearing there was a decree, from which plaintiff and the two defendants mentioned appeal. Plaintiff’s appeal being first perfected, it will be regarded and styled the appellant.--</p>

— Hon. S. M. Elwood, Judge. ’ Action at law¡ upon a promissory note executed by defendants, Z. T. Dunham and Emma L. Dunham, who are husband and wife.

— -Hon. M. J. Wade, Judge. Action at law to recover for injuries alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.—

— Hon. James D. Smyth, Judge. Plaintiff states, as her cause of action, in substance, as follows: That on August 19, 1892, the defendant executed his promissory note for one-thousand five hundred dollars, payable “to Henry Moehn, Sr.,” sixty days after date with six per cent interest; that said note was endorsed, “Henry Moehn.

— Hón. W. A. Spur-rier, Judge. Action at law on a certificate of membership issued.by the defendant.. There was a trial by jury and a verdict and judgment for the plaintiff. The defendant appeals. —

— Hon. W. I. Smith, Judge. Jasper Robertson left in the keeping of plaintiff certain notes and accounts. He was murdered in 1889, and George Paup appointed administrator of his estate. The defendant Almira Cobler is his mother and sole heir. In 1890 she employed the plaintiff 'to resist an application for the appointment of one Lara-way as administrator, and to protect her interests in general.

— Hon. H. M. Townee, J udge. The three cases entitled as above were by agreement tried as one in the lower court, and are so submitted here.

— Hon. H P. Holmes,. Judge. In an action brought by plaintiff, a stockholder in the Whitlock manufacturing Company, to secure the appointment of a receiver, various parties who claimed to hold liens against the property of the corporation intervened, asking the establishment of their liens and an order fixing their priorities.

— Hon. Z A. Church, Judge. Action to foreclose a mortgage to which the defendants interpose the plea of payment. Decree for the defendants, and plaintiff appeals. —