Volume 106 — Iowa Reports

— Hon. T. M. Fee, J udge. Action at law, aided by attachment, to recover an amount alleged to be due from the defendants Deitrich & Capell, and the members of that firm, on a promissory note and on accounts. C. W. Major, as assignee of the defendants, intervened. There was a trial by the court without a jury, and a judgment in favor of the plaintiff. The intervener appeals.

- — Hon. A. J. McCrary,. Judge. Action in equity to restrain tbe sale of certain real estate on execution. There was a trial on issues joined, and a decree for plaintiff. Defendants appeal.

A. B. Thornell, Judge of the Fifteenth Judicial District of Iowa.

— Hon. W. H Quarton, Judge. Action at law to recover compensation for medical services rendered a pauper at the instance of the township trustees, and for like services rendered to one afflicted with a contagious disease, at the instance of a local board of health. The defense was a general denial and an affirmative plea that defendant employed a regular physician, whose duty it was to look after such patients on behalf of the county.

— Hon. W. F. Conrad, J udge. Plaintier-s bring this action for judgment against the defendant Stockwell, and for a decree establishing and foreclosing a mechanic’s lien upon real estate described.

— Hon D. R. Hind-man, Judge. Action at law on. a policy of fire insurance. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

.Appeal from Johnson District Gourt. — IIon. M. J. Wade, Judge. This is a garnishment proceeding in which plaintiff, Grimm, and others are seeking to subject to the payment of ■certain judgments against Teeter the amount owing by Grimm to Teeter as purchaser of certain real estate in the city of Iowa City.

<p>1 Criminal Appeals: printing: Construction of statute. The provision of Code, section 5462, that in case a judgment in a criminal case is reversed or modified in favor of defendant, on appeal, he shall be entitled to the cost of printing abstracts and briefs not exceeding one dollar for each page, applies to a crse decided on appeal after the section took effect, although the printing was done before that day. And Code, section 51, providing that the repeal of existing statutes shall not affect any suit or proceeding had or commenced, refers to civil cases only.</p> <p>2 Taxation. The cost of printing the abstract and briefs on appeal by defendant in a criminal case which Code, section 5462, provides he shall recover in case the judgment is reversed or modified in his favor, may be taxed against the county, on motion, in the supreme court, in the main case.</p>

— Hon. O. P. Holmes, Judge. Action in equity to restrain the collection of a road tax levied upon property of the plaintiff. A demurrer to the petition was overruled, and, the defendant refusing to plead further, a decree was rendered in favor of the plaintiff for the relief demanded. The defendant appeals.-

— Hon. W. S. Wititrow, Judge. This is an action for damages on account of injury done to real estate by an alleged change in the grade of the street upon which the properly abuts. From a verdict and judgment in plaintiffs favor, the defendant appeals.

— PI.on. W. R. Green, Judge. Action at law to recover for personal injuries alleged' to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. P. B. Wolfe, J udge. Action to recover for personal injuries sustained by plaintiff while in the employment of the defendant as a locomotive fireman, because of certain alleged acts of negligence on tbe part of tbe defendant.

— IIon. W. B_ Quarton, Judge. C. W. Edgington was garnished on execution at the suit of S. II. Kerr against W. II. Kennedy.

— Hon. J. L. Husted, Judge. Action against John Schmidt for recovery of real property. In an amendment to his answer and cross petition-he made other parties defendants, and upon his motion the-cause was transferred to the equity side of the calendar.. Decree was entered for Schmidt as prayed, and dismissing: plaintiff’s petition, and also the cross petition of the defendants. The plaintiff and Schmidt appeal; that of the former being first perfected.

— Hon. Thomas F. Stevenson, Judge. Action to set aside a sheriff’s deed, and quiet title to real ' estate. Decree for plaintiff. Defendant Bennett appeals.—

— Hon. A. B. Tiiornell, Judge. This is an action in replevin, which originated in the court of a justice of the peace. The value of the property was fixed in the petition at one hundred and ten dollars. It was taken by appeal to the district court, and was there tried, without the intervention of a jury. From a judgment in defendant’s favor, the plaintiff appeals.

— Hon. W. S. Witiirow, Judge. Action upon a policy of insurance by tbe defendant to the plaintiff, insuring him against the effects of personal bodily injuries caused solely by external, violent, or accidental means. Verdict and judgment were rendered in favor >of the plaintiff for two hundred dollars. Defendant appeals.

— How. W. Q. Thompson,. J udge. Action at law to recover damages resulting from the-death of H. P. Ford. The negligence alleged is failure to. erect a safe and sufficient cattle guard at a place where the railroad crosses a public street in the town of West Liberty. The defendant denied the alleged negligence, and pleaded contributory negligence and waiver of the defects. The plaintiff, in reply, pleaded protest and promise of repair.

— Hon. T. F. Stevenson, Judge. Action at law to recover for personal injuries sustained from a fall on a sidewalk, for which the defendant is alleged to have been responsible. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. B. P. Birdsall, J udge. The defendant, having been accused and convicted of assault with intent to commit rape, appeals.

— Hon. A. B. Thornell, Judge. The defendant was indicted for tbe crime of murder in tbe first degree for tbe killing of one Albert McFarland on the tenth day of December, 1896, and on the trial was convicted of the crime of manslaughter, and judgment of imprisonment in the penitentiary at Fort Madison for the period of six years rendered against him, from which judgment the defendant appeals.

— Hon. Robert Sloan, Judge. Suit iu equity to enjoin defendants from opening up a ' road through land belonging to the decedent. Defense, a general denial, and a plea of estoppel. Decree dismissing the petition, and plaintiffs appeal.

— TIon. IIenry Bank, J udge. Defendant was indicted and tried for the crime of lewdness and from a judgment of conviction prosecutes this appeal.

— Hon. J. A. Story, ■ Judge. The defendant was convicted of tbe crime of forgery, and from a judgment which required that he be imprisoned in the state penitentiary at Fort Madison for the term of three years, and pay the costs taxed in the case he appeals.—

<p>1 Appeal by Slaie: review: Ridings on evidence. Where the objections to certain questions asked by the state in a criminal prosecution, on the ground that they were “incompetent, irrelevant, and immaterial, privileged and hearsay,” were sustained without stating the ground for the ruling, the question whether the objections were properly sustained on the ground that the question called for confidential communications will not be considered on an appeal by the state, where the rulings of the court were mostly sustainable on other grounds.</p> <p>2 Evidence. In a prosecution of B. for committing an abortion by the use of drugs and instruments, on a woman, causing her death, a druggist testified for the defense that deceased came to his store a short time before she was sick, with a prescription which she stated a Dr. S. had given her, which witness had refused to fill. Evidence was then given over objection that the drug prescribed would produce an abortion, and of other facts to show Dr. S. was the author of the prescription. Held, that the evidence was inadmissible, on account of its immateriality. The evidence was not admissible on the ground that.it contradicted her dying declaration, that the abortion was produced by a doctor who was one of the defendants, since the face that the deceased attempted it in the way described would not tend to prove that she would not after-wards permit it to be done by drugs and instruments in the hands of defendant, as charged in the indictment.</p>

<p>1 Seduction: what constitutes. Prosecutrix was a coun try girl, seventeen years of age, and defendant was several years her senior. He was her suitor and he flattered and caressed her, and promised that if she would submit to him, no conception should result and if it did he would marry her. Held, she having submitted, a conviction was warranted.</p> <p>4 Evidence: Curing error. Where, in a prosecution for seduction, prosecutrix testified that she told her mother of her condition soon after the act, and the mother testified that she had discovered her daughter’s condition at that time, error in admitting the mother’s testimony because it was based on what prosecutrix told her was-cured by withdrawing prosecutrix testimony from the jury.</p> <p>3 Corroboration. Evidence that defendant, though engaged to another, waited on prosecutrix as a suitor and said that he “was-going to show her a hot time” and that he said, after the act, not having seen her for a week, that he was going to her house for sexual intercourse, corroborates prosecutrix. Such statements are rebuttal where intercourse is denied, and harmless, if not strictly rebuttal.</p> <p>5 Competency: Objection. The testimony of the mother of the prosecutrix that she discovered that her daughter was pregnant about four weeks after the alleged seduction is admissible, where the objection raised was only to the competency of the evidence and not of the witness.</p> <p>6 Seduction. A sentence of two years and six months imprisonment for the crime of seduction is not excessive where the evidence tended to show that the defendant paid his attentions to the prosecutrix with the deliberate purpose of accomplishing her ruin.</p>

<p>Appeal from Olay ton District Oourt. — -Hon. A. N. Hobson, Judge.</p> <p>Action to enjoin the enforcement of a judgment. From a decree in plaintiff’s favor the defendants appeal.</p>

— Hon. W. B. Quarton, Judge. This action was commenced September 20, 1894, by P. Howes, since deceased, as assignee of a certain lease of real estate by L. B. Gregory, by F. F. Faville, his agent, and the defendant company, lessee, to recover ninety dollars and interest as rent from April 1 to September 30, 1894. A landlord’s attachment was asked and issued.

<p>Appeal from Hamilton District Court. — Hon. H. R. Hind-man, Judge.</p> <p>The petition is in four counts, in the first three of which damages are sought because of fires set out or caused by defendant’s locomotives. In the fourth count recovery is sought for cattle killed and injured on one of defendant’s-depot grounds by one of its trains, negligence being charged in the operation of the train. There was a recovery on each of the four counts, the general verdict being for plaintiff in the sum of one hundred and seventy-five dollars and ninety-one cents. From the judgment the defendant appealed.</p>

<p>Appeal from Polls District Court. — How. T. E. Stevenson, Judge. ■</p> <p>Action at law submitted on motions and applications-for a modification of tbe rules.-</p>

— Hon. A. J. House, Judge. Suit in equity to establish and enforce a mechanic’s lien. Plaintiff is a subcontractor who furnished lumber and material to defendant Thomas, the principal contractor, for the erection of a house upon land belonging to defendant Dun-ham.

'Appeal from Garroll District Court. — Hon. Z. A. Church, Judge. Tiie defendants were mayor, treasurer, recorder, councilman, and assessor of the incorporated town of Breda prior to the election of March 28,1898, and claim to hold over because of no election on that day.

— TIon. Feed O’Donnell, Judge. Action to recover damages of defendant for negligence as bailee. There was a trial to jury, and verdict for defendant. Upon plaintiff’s motion, the verdict was set aside and a new trial ordered. From this order defendant appeals.- — ■

— Hon. W. H. Tedford,. Judge. Plaintiff, the owner of a certain tract of land, brought this action to enjoin the defendant from removing the fence enclosing the same. Defendants answered, claiming that, under the terms of a written lease from the former owner of the land to him, he was the owner of the fence and had a right to remove it.

<p>Appeal from Mitchell District Court. — -IIon. John O. Skerwin, Judge.</p> <p>In March, 1887, the defendant company leased of the plaintiff one acre of land, which was a part of a forty-acre tract owned by him, for a term of twenty years; on which a creamery was to be, and was, built and put in operation. The lease was, on the eleventh of June following, reduced to writing, and signed by the plaintiff. The waste water from the creamery has been discharged over and through plaintiff’s land, adjacent to the creamery lot, since the creamery was in operation, about the first of May, 1887. At first this waste water passed over the surface, then through an open ditch, and later through an underground drain. This action was commenced in May, 1895, and is to enjoin the defendant company from the further use of a ditch or drain across his land and for damages. The use of the land for drainage is admitted in the answer, and license and estoppel is pleaded in defense. ■ The district court dismissed the petition, and the plaintiff appealed.</p>

- — Hon. Joiin A. Story, J uclge. In this case verdict and judgment were rendered against M. D.' Ilill, the Exchange Bank of Earlham, and Thomas Early for one hundred and nineteen dollars and five cents, in favor of the plaintiff, from which they appeal. The issues and facts appear in the opinion.

— Hon. B. P. Birdsalt,., . Judge. The plaintiffs purchased eleven and two-tenths acres of la,nd of the Western Town Lot Company, September 23,. 1892, on which were standing.five hundred and seventy-two feet of corn cribs and forty-two rods of fence, which the defendants removed in December of the same year. This is an action for the value of the cribs and fence. Trial to jury. Verdict and judgment for the defendants, and the plaintiffs-appeal.-

— Hon. W. S. Withrovi ,, Judge. Action in equity upon a promissory note, and to foreclose a mortgage securing the same. From a decree in defendant’s favor, the plaintiff appeals.

— Hon. A. E, Dewey, Judge. , n- ! The defendant was convicted of the crime of libel, and from the judgment, which required that he pay a hne of si^ hundred dollars and costs, and that he stand committed to the county jail until the fine should be paid, he appeals.—

<p>Appeal from Poweshielc District Court. — Hon. Ben McCoy, Judge.</p> <p>Issues joined in the probate of will. Yerdict and judgment for contestants and proponents appeal.</p>

— Hon. J. H. Gamble, J udge. Suit in equity to foreclose a mortgage and to cancel certain shares of stock held by defendants in the plaintiff association. Defense, usury and certain payments which were not credited upon the notes. Decree for plaintiff, and defendants appeal.-

— Hon. William G. Thompson, Judge. . In August, 1896, the plaintiff purchased of the defendant a corn binder, for which he gave his note for one hundred and thirty dollars, which note has been assigned by defendant, and plaintiff is liable for the payment thereof. From the petition it appears that the corn binder was warranted as follows: “These machines are all warranted to be well made, of good material, and durable, with proper care.

’Appeal from Lyon District Court. — Hon. William Hutchinson, Judge. Action to recover upon a policy of fire insurance. There was a jury trial; verdict and judgment for plaintiff. Defendant appeals.

— Hon. Scott M. Ladd, Judge. Action at law on a poliy of insurance issued by the-defendant against loss or damage by fire on a store building, in Maurice;-Iowa. There was a trial by jury, and a verdict' and judgment for tbe plaintiff. Tbe defendant appeals.—

— Hon. W. A. Spurrier, Judge. Action to recover treble damages for overcharges exacted on freight shipments over defendant railway. There was a demurrer to the petition, which was sustained. Plaintiff electing to stand on its petition, judgment was rendered in favor of defendant for costs. Plaintiff appeals.

A ppenl from Dubuque District Court. — IIon. J. L. Husted, Judge. Action of replevin to recover possession of seven hundred and sixty-seven barrels of apples. . The court directed a verdict for defendants, and plaintiff appeals. The facts, will appear in the opinion.

<p>Appeal from Grundy District Gourt. — Hon. A. S. Blair, Judge.</p> <p>Action for damages. Judgment for • plaintiff, and defendant appeals.'</p>

- — Hon. -P. B. Wolfe, n, Judge. Action to recover damages for personal injuries sustained by the plaintiff while in the employment of the defendant as a locomotive fireman.

— Hon. T. M. Fee, Judge. Action at law, aided by attachment, to recover of the Granite State Provident Association of Manchester, N. H., the par value of certain shares of fully-paid stock, with interest. The association was adjudged to be in default. Its receiver, E. E. McElroy, filed an answer and an application to set aside the default.

— Hon. N. E. Gaynok, Judge. The parties to this suit are attorneys at law, and werer prior to May 29, 1895, partners in the practice of their profession. This action is on a promissory note made by defendant to plaintiff March 30, 1896, for six hundred and thirty-five dollars, due June 30th thereafter.

— Hon. L. E. Fellows, Judge. Action at law to recover damages of defendant for failure to take and pay for certain corn sold him by the plaintiff. The action was aided by an attachment. Defendant, in answer, claimed that he had purchased three thousand bushels of corn of plaintiff, which he (plaintiff) refused to deliver.

[Appeal from Webster District Court. — Hon. B. P. Birdsalt,,. J udge. Action for divorce and alimony upon the ground of “such cruel and inhuman conduct as to endanger the life of the plaintiff.” Habitual drunkenness was also charged, but this charge was abandoned on the trial as a cause for divorce. Decree was rendered granting a divorce, and allowing the plaintiff three thousand dollars alimony. Defendant appeals.

<p>'Appeal from Dubuque District Gourt. — Hon. J. L. Husted, Judge.</p> <p>Action for personal injuries. Judgment for defendant, and plaintiff appeals.</p>

<p>!'Appeal from Polk District Gourt. — Hon. W. A. Spurrier, Judge.</p> <p>Action on accidental insurance policy. Judgment for plaintiff, and defendant appeals.</p>

— IIon. H. Ryan, Judge. 1 This is an action in equity between partners for an accounting. Plaintiff and defendant are lawyers, and for a time were associated as co-partners in the practice of their profession.

— Hon. C. P. Holmes,. Judge. Of the contract price for the construction of a high school building, three thousand six hundred and forty dollars was withheld by the plaintiff, and this action was brought to require the defendants, except the contractor, to interplead and establish their claims against said fund.

— Hon. F. P. Gaynor, Judge. Appeal from an order overruling a demurrer interposed by plaintiff to a petition filed by defendants, asking the modification of a decree restraining defendants from selling intoxicating liquors in violation of law.

— Hon. J. C. Sherwin, Judge. Plaintive, widow of Paul E. Meier, who died a citizen of Mitcbell county, Iowa, on the twenty-fourth day of May, 1892, intestate and without issue, brought this action to partition'certain land in said county he owned at the time of his death, of which she claims one-half.

— Hon. T. P. Stevenson, Judge. Replevin for the possession of two safes, being a part ■of a stock of goods. The basis of plaintiffs claim is two •chattel mortgages. The defendant’s claim to the possession is that, as constable, he took possession of the safes by virtue of a landlord’s attachment issued out of a justice’s court in a suit wherein William Johnson was plaintiff and C. W. Chittenden was defendant.

— Iíon. J. L. TIusted, Judge. Action at law to recover an amount alleged to be due tbe plaintiff on a contract for grading. When the evidence had been fully submitted, a verdict was returned in favor of the plaintiff by direction of the court; and from the judgment rendered thereon, the defendant appeals.

— Hon. A. Yan Wagenen, Judge. Suit iu equity for an accounting and for a re-conveyance of land, the title to which is in the defendant Thomas B. Grapes, or the Monticello Bank. Defendants say that the conveyance to Thomas B. Grapes was absolute, and that plain- ■ tiffs have no interest in the lands.

- — Hon. W. A. Spurrier, Judge. Action to recover one thousand five hundred dollars, being the proceeds of goods sold by defendant at retail, for which he was to account to plaintiff at fixed prices. The defendant denied the indebtedness, and, by way of counterclaim, asked to be allowed damages for the wrongful and malicious suing out of a writ of attachment. Trial to jury. Verdict and judgment for defendant. Plaintiff appeals.—

— Hon. E. B. Gaynor, Judge. Action to enjoin the sale of certain real estate belonging to the plaintiff under an execution in favor of the defendants J. L. Witt, J. W. Beed, and O. B. Bolter, against M. E. Bemy, trustee. Decree was rendered making the injunction perpetual. Defendants appeal.

- — Hon. Thomas E. Stevenson, Judge. Action, aided by attachment, upon two promissory notes. The defense was part payment, and there was a counterclaim for damages upon the attachment bond. Trial to jury. Verdict and judgment for defendant. Plaintiff appeals.

'Appeal from Lyon District Gourt. — Hon. William Hutchinson, Judge.

— Hon. W. F. Conrad, Judge. The defendant, Chittenden, gave to A. Holland and J. A. McKinney, each, a mortgage on his stock of goods, consisting of jewelry, silverware, glassware, and queensware, in a certain building in the city of Des Moines. The plaintiff became the owner of both mortgages, and under their terms he made a demand for the property, which was refused, and this action is replevin for its possession.

— Hon. Scott M. Ladd, Judge. Action at law to recover for money alleged to have been paid as usurious interest. There was a trial by the court without a jury, and a judgment for the plaintiff, from which he appeals.

— Hon. C. P. Holmes,. Judge. Action for recovery of damages occasioned by the destruction of a hedge fence growing on land alleged to belong to the plaintiffs, but which, according to the answer of the defendants, had been dedicated to the public use as a highway. Trial to jury; verdict and judgment for the defendants; and plaintiffs appeal. The death of Mary A. Philbrick having been suggested, her administrators have been .substituted as parties plaintiff in this court.-

'Appeal from Dubuque District Court. — Hon. J. L. IIusted,. Judge. Actions to quiet title. These two cases involve the same question. They were tried together below, and are submitted here upon one record. The trial court entered a decree for the defendants, and from this action plaintiffs appeal.—

— Hon. W. K. Green, Judge. Suit in equity to quiet plaintiff’s title to certain lands in Cass county against tbe apparent liens of four judgments-rendered in favor of defendants and against one Davis, through whom plaintiff obtained title. It is claimed that at the time Davis conveyed the land it was his homestead, and not subject to the lien of the judgments.

— ITon. Scott M. Ladd, Judge. Plaintiee brings tbis action under section 5198 of the United States Revised Statutes to recover forty-seven thousand and twenty dollars and thirty-seven cents illegal interest alleged, to have been knowingly charged to him by the defendant, and to have been paid by him to the defendant without knowledge of such illegal charges.

'Appeal from Marshall District Court. — Hon. Obed Gas-well, Judge. Action to recover damages arising from a breach, of contract. Trial to jury. Verdict and judgment for plaintiff, and defendants appeal.

— I-Ion. W. F. Conrad,.. J udge. In September, 1895, Nupúf commenced business in Des--Moines as a clothing merchant. He was then indebted toBurgunder Bros. & Co. and to Mrs. Friedenberg, some clerks in his employ, and others. On September 9, 1895, he gave to-Mrs. Friedenberg a chattel mortgage on his stock of goods, which was filed for record at 1:45 p. m. of that day.

- — Iíoñ. P. B. Wot-ee, Judge. Action at law tipon a policy of insurance covering a frame building used as a grain elevator and certain elevator machinery. Defendant pleaded in defense that the building' did not belong to the assured when the policy issued, failure to make proof of loss, and a breach of condition relating to change or transfer of title or interest in the property.

— Hon. W. B. Quarton, Judge. Action in equity to quiet in the plaintiff the title to certain-real estate which had once been platted as streets. There was. a hearing on the merits, and a decree in favor of the defendants. The plaintiff appeals.

— PIon. M. A. Roberts, Judge. Action on six promissory notes. Trial to jury, verdict and judgment for defendant, and plaintiff appeals. — •

’Appeal from Audubon District Court. — Hon. W. E. Green, Judge. Action at law to recover tbe amount due on a certain certificate of deposit, and for tbe possession or proceeds of a certain promissory note, of wbicb certificate and note tbe plaintiff alleges tbat sbe is tbe owner, and tbat tbe defendant has converted tbe same to bis own' use, as executor of said estate. Tbe defendant answered, claiming tbat said certificate and note are tbe property of said estate.

<p>1 Insurance: proof of loss: Sufficiency. A written notice to an insurance company of a loss under its policy accompanied by an affidavit stating that the origin of the fire is unknown to the insured, and that the loss is total, entire and complete satisfies the provision in the policy requiring satisfactory proofs of loss as well as the requirement of Code, section 1743, that notice in writing must be given to the company of the loss accompanied by an affidavit stating how the loss occured so far as known and the extent of the loss.</p> <p>3 ■Same. A proof of loss which complies with the statute and the requirements of the policy is sufficient, although insured intended it only as a notice.</p>

— Hon. A. S. Blair,. Judge. The defendant was convicted of tbe crime of fraudulent banking, and'from the judgment rendered against him, he appeals.-

— Hon. Scott M. Ladd, Judge. Action to have a deed, absolute upon its face, declared a mortgage, and to quiet plaintiffs title against the mortgagee. Trial to court. Decree for defendant. Plaintiff appeals.

— Hon. Obed Caswell, Judge. Action at law upon a promissory note made by W. J. Flitton to H. W. Squires, and by Squires indorsed to plaintiff.

<p>1 Meclianic’s Lien: claims against county: Filing. Under Acts Twentieth General Assembly, chapter 179, section 2, providing fox-payment of sxib-contractorsof public building by the municipality on the filing of verified claims with the officer on whose order payment for such building is to be made, and the Code, section 482, requiring payment by county treasurers to be made only on warrants of the county auditor, a claim for material furnished for a county building must be filed with the county auditor, even where the board of supervisors appoint one member of the board a superintendent for the building, and direct the auditor to draw warrants for work on the building on his order. While the supervisor is a public officer, the law does not authorize him by virtue of his office to issue an order for payment of public money.</p> <p>3 Traud in statement: Rights' of sub-eontr actors. A contractor who erected one building for a private person and also a jail with material furnished by a sub-contractor, made the latter a payment half of which was credited on the jail account. This application was, later, so changed as to make it, instead, a credit on the private building. The contractor insists that the change was made simply because he did not desire that a lien should exist against the private house. The weight of the evidence, however, shows that such change was made because the contractor represented that the original application was due to mistake. Held)</p> <p>a. Under such circumstances, the change of account on the part of the sub-contractor, though it increased its claim against the jail by $200, which if allowed, would diminish the fund for the payment of the other sub-contractors, by that'sum. did not amount to a fraud which would destroy its mechanic’s lien.</p> <p>b But while this evidence negatives such fraud it does not establish that a mistake was in fact made in the application of the payment</p> <p>c 4 So, while a judgment for the sum due after such change was made, might properly be rendered against the contractor, for the reason that debtor and creditor may change the application of a payment at will, as between themselves, such change will not be allowed to deprive other sub-contractors- of any portion of the fund subject to their liens, and as to them, the representation by which the contractor obtained the change, are mere hearsay.</p> <p>2 Payment: Variation of books of account. A sub-contractor received a warrant for $400, from the contractor, paid him $lu0 in cash, credited him on its books with $400 and charged him with said $100. Held, it might be shown by parol that nothing more than reducing the sub-contractor’s lien claim, by $300 was intended by the transaction.</p>

— Hon. A. B. Thornell, Judge. Action by Julia Barco against the city of Shenandoah to recover damages for injuries sustained by her upon one of the sidewalks of the defendant city. The case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of five hundred and eighty-eight dollars, and defendant appeals.-

— Hon. Scott M.' Ladd, Judge. The firm of Frank Anderson & Co. is composed of Frank Anderson, A. H. Parsons, and George O. West. Frank Anderson & Co. made its note to the plaintiff, and this action is to recover thereon, aided by an attachment. A. H. Parsons and George O. West, of the firm of Anderson & Co., constitute the firm of Parsons & West, and were lessees of a farm, known as the “Barlow Hall Farm,” with the intervener A. K. Barlow as lessor.

— Hon. George W., Wakeeield, Judge. Action in equity for the cancellation of certain instruments in writing which purport to convey real and personal property to the defendant, to enjoin him from exercising acts of ownership over the property, and for general, equitable relief. There was a hearing on the merits, and a decree for the plaintiff. The defendant appeals. — A'ffirmed.

'Appeal from Buchanan District Court. — Iíon. A. S. Blair,. Judge. In this case several actions were submitted upon the same evidence for the purpose of determining the order of priority of several liens upon certain real estate in Independence, Iowa, and the manner in which the proceeds that might arise from the sale of the property should be applied. From the decree' rendered, the plaintiff, G-.

— Hon. George W. Burn-ham, Judge. Suit in equity to set aside a tax deed held by defendant Goodhue to a certain lot in the city of Cedar Rapids; to recover possession of the property; and the rent received for the use thereof. Decree for plaintiff, and defendants appeal.—

'Appeal from Limn District Court. — Hon. William GL Thompson, Judge. One Jurries purchased ir.toxicating liquors of defendant company, and paid therefor, and this action by his assignee is to recover the amount so paid, together with a smaller sum which, it is claimed, was advanced and paid by Jurries for different purposes, at defendant’s request. There was a jury trial which resulted in a verdict for defendant, upon which judgment was duly entered. Plaintiff appeals.

— Hon. James I). Smytii, Judge. The plaintiff is the holder of four promissory notes, on which recovery is sought in this action. The following is a copy of one of the notes, the others being the same except as to dates of payment: “$43.75. Chicago, April 1st, 1892.

— FIon. William G. Thompson, Judge. This action is to recover upon a certificate of membership issued by the defendant to plaintiff’s assignor for the payment of certain weekly indemnity in case of accidental injuries sustained by the assured.

'Appeal from Wright District Court. — Hon. D. R. Hindman, Judge.

— TIon. Wirriam G. Thompson, Judge. This action is before us on an appeal by tbe plaintiff from a judgment rendered by the district court on an assessment for taxation made against the plaintiff, for the year 1895. The issues and facts appear in the opinion.

— Hon. William G. Thompson, Judge. The defendant, having been accused of the. crime of rape, and convicted of an assault with intent to commit rape, appeals.

— Hon. W. E. Green, Judge. Action in equity for a divorce, and for the custody of minor children. There was a hearing on the merits, and a decree of divorce in favor of the plaintiff. The defendant-appeals.

— Hon. N. W. Macy, Judge. Suit in equity by two judgment creditors of M. B. Israel to subject certain personal property in bis possession to tbe payment of tbeir judgments, and for tbe appointment of a receiver. Tbe other defendants, aside from Israel, are mortgagees of tbe property.

— Hon. Gf. W. Wakefield, Judge. Action to recover for medical and surgical services rendered a pauper patient at the request of township trustees. There was a judgment for plaintiff, and defendant appeals.—

— Hon. Scott M. Ladd, Judge. The defendant Haerling is sheriff of Plymouth county, and the other defendants are sureties on his official bond. In July, 1884, the plaintiff’s assignor brought suit against Frahm & Mitchell and Ida Frahm in the district court of Ida county, asking judgment for three thousand dollars, and sued out a writ of attachment, which was levied upon personal property of the defendants.

— IIon. G. W. Burnham, Judge. Action,at law to recover for personal injuries alleged to have been caused by negligence on the part of the defendant. After the plaintiff had submitted his evidence, the district-court sustained a motion to direct a verdict for the defendant, a verdict was directed and returned accordingly, and judgment was rendered in favor of the defendant for costs. The plaintiff appeals.

— Hon. G-. W. Burn-ham, Judge. Action to charge the defendant with a certain indebtedness secured by mortgage on lands which were conveyed to the defendant upon an alleged agreement expressed in the deed whereby defendant assumed and agreed to pay said mortgage indebtedness. Defendant answered, as will hereafter appear, and the plaintiff demurred to the answer.

<p>1 3 Mortgage Foreclosure: jurisdiction: Redemption. Plaintiff’s grantor conveyed to him certain land, subject to two mortgages. The first mortgage was foreclosed and the land sold to the mortgagees. The debt secured by the second mortgage was also secured by a mortgage on real estate in another county, on which the mortgagor resided, and made his home, and also by a mortgage on personal property. The assignee of such second mortgage, having subjected the mortgaged chattels to the debt, obtained a personal judgment against the mortgagor, in the county of his residence, and a decree directing a sale of all the mortgaged real estate, which was subsequently conveyed by the sheriff to an ' assignee of the certificate of sale, who thereupon redeemed from the sale under the first mortgage. Plaintiff, who was not a party to either action, though he had actual notice thereof and of such mortgages when he received his deed, sued to foreclose such deed as a mortgage, and to redeem from such prior mortgages, claiming that the court had acquired no jurisdiction to foreclose the second mortgage on the land in question, as it was situated in another county, and that, as the purchaser had made redemption from the first sale more than nine months after such sale, he had no remedy against such land. Held, that there was no equity in such claim. In this case it was proper and necessary to sell the land in the county of the suit, first, because of the homestead character of the lots in the other county, and by such sale to make the amount to come from the homestead, definite.</p> <p>2 ' Separate mortgage: Construction. Separate mortgages on lands in different counties, executed at the same time, by and to the same parties, and to secure the same indebtedness, cannot be construed as constituting a single instrument, though a note and mortgage will be read together and construed, only with respect to debt, as parts of one contract.</p> <p>3 Suit on note and foreclosure. Under Code, section 3493, providing that an action to foreclose shall be brought in the county in which the property to be affected, or some part thereof, is situated, and section 4288, providing that, if separate actions are brought in the same county on the note and on the mortgage, the plaintiff must elect which to prosecute, and that, “the other will be discontinued at his cost,” a suit may be maintained in one county on the note, and, in a proper case, an action for the foreclosure of the mortgage to secure it in another.</p> <p>4 Misjoinder, Misjoinder of causes of action exists under Code, section 3493, providing that an action to foreclose a mortgage on real property shall be brought in the county in which the property to be affected or some part thereof is situated, where suit is brought to foreclose two mortgages on real property executed by and to the same parties at the same time and to secure the same debt and the property covered by one of the mortgages is not situated in the county where the venue is laid.</p> <p>5 Waiver: Motion to transfer. Where an action to foreclose several mortgages on real estate situated in different counties, was brought in one of such counties, all objections on the ground of such misjoinder of actions were waived by failure of the mortgagors to appear and move therein.</p> <p>5 Same. Under Code, section 3504, providing that, if an action is brought in the wrong county, it may there be prosecuted to a termination, unless the defendant, before answer, demands a change of venue, a decree of foreclosure was not invalid for want of jurisdiction where a portion of the mortgaged property was situated in a different county from that in which the action was brought, and such action was in personam as well as in rem, and the mortgagors entered no appearance therein, as their right to insist on a trial in the other county was waived by their default.</p> <p>6 Right oe possession: injunction. One in possession of land under a deed effective only as a mortgage, and having a plain remedy at law, if entitled to protection, was not entitled to an injunction restraining the purchaser of such property at a sale on foreclosure of a prior mortgage, from interfering with such possession.</p>

— Hon. T. F. Stevenson, Judge. Action of replevin, involving the right to the possession of the following goods: One Seth Thomas regulator, one Swiss regulator, one jardiniere, one jeweler’s scales, one Natchet trial case, one diamond scale, one pair of sleeve buttons, two pairs of eardrops, one watch movement, one pair glasses, one watch, one gold pin, one chain, one garnet pin and one chain.

— Hon. M. A. Roberts, Judge. Action at law to recover damages for delay in transmitting and delivering a telegram sent to tbe plaintiff. Verdict and judgment for the plaintiff for one thousand two hundred and thirty-four dollars and thirty-five cents. Defendant appeals.

— Hon. D. Ryan, Judge. This action is founded upon a' promissory note. The answer, with its several amendments, sets up defenses, the substance of which may be thus stated: Defendant signed the note in suit, together with one A. L. Hill, who was at the time a minor. Defendant was a surety only, although her name appears as a joint maker. The note was given to the firm of Skinner Bros., as part of the price of a livery stock purchased from said firm by Hill.

— ITon. PI. M. Remley, Judge. Action at' law to recover for injuries alleged to have been caused by negligence and wrongful acts on the part of the defendant in connection with one of its streets. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

Action at law to recover tbe rent reserved in a lease made by plaintiff to defendants. Defendants pleaded that the lease was made to enable them to violate the intoxicating liquor laws of the state, and was and is void. The trial court sustained plaintiff’s demurrer to certain parts of the answer, and rendered judgment for plaintiff for the full amount of her claim. Defendant’s appeal.

— Hon. N. W. Macy, Judge. In December, 1893, Isaac Dickerson, as a stockholder, brought -a suit in equity to wind up the affairs of the Oass County Bank, it being insolvent, and procured the appointment of a receiver, — Theodore G-. Steinke. Thereafter suits were commenced against the bank and its stockholders by creditors of the bank. One ground of recovery against the stockholders was a provision in the articles of incorporation for double liability.

— TIon. C. P. Holmes, Judge. Action of certiorari to review the proceedings of the State Board of Medical Examiners which terminated in the revocation of the certificate previously issued to the plaintiff which authorized him to practice as a physician and surgeon within this state. A writ of cerlioram was, by authority of the district court of Polk county, issued on the petition of the plaintiff, and a return made thereto.

— Hon. W. B. Quarton, Judge. Action on fire insurance policy. Judgment for defendant on verdict directed by the court, and plaintiff appeals.—

— Hon. W. F. Conrad, Judge. Plaintiff, as assignee, of the Scoville Plumbing Company, brings this action in equity to recover judgment against E. J. Goode for nine hundred and six dollars and fifty cents and interest, and for the establishment and foreclosure of a mechanic’s lien on real estate described. Defendants answer, joining issues as will appear in the opinion. Decree was rendered in favor of the plaintiff as prayed. Defendants appealed.

- — -Hon. Scott M. Ladd, Judge. Action for judgment and for decree establishing and foreclosing a mechanic’s lien for four hundred and eighty-eight dollars and eighty-eight cents and interest, on the defendant’s property. The Guarantee Trust Company and W. E. Higman were made defendants, as claiming a lien or interest in the property.

— Hon. W. E. Conrad, Judge. Plaintiff began proceedings in this case by filing a petition at law, asking damages. Thereafter he filed a substituted petition, which, though quite lengthy, we are compelled to set. out in full, in order that the issues may be fully understood.

Oertiorari proceedings commenced in this court to review the proceedings of H. M. Remley, one' of the judges of the Eighteenth Judicial District, while sitting as a court in Linn county, Iowa, in refusing to allow plaintiff to appear in and prosecute a cause in which he, as trustee, was a party plaintiff.

— -Hon. Henry Bank, Jr., Judge. Action to subject certain land to tbe payment of tbe claims established against tbe estate of Pbilipbine Bebrens. Decree as prayed, and defendants appeal.

<p>Appeal from Folic District Court. — Hon. O. P. Holmes, Judge.</p> <p>Action in equity to enjoin tbe collection of special assessments for grading and paving a street, and for the cancellation of the assessments. There was a hearing on the merits, and a decree in favor of the defendant, the city of Des Moines, and the intervener, the Flint Brick Company. The plaintiffs appeal.</p>

— Hon. Walter. I. Smith, Judge. By the terms of a written contract, G. S. Monroe agreed to construct a tenement house for the plaintiff according to specifications, and save her harmless of all liens and incumbrances. Mechanics’ liens were established, however, amounting to three thousand, seven hundred and sixty-one dollars and fourteen cents, which the plaintiff was compelled to pay.

<p>Appeal from Story District Court. — Hon. S. M. Weaver, Judge.</p> <p>Action at law to recover damages for injuries sustained by plaintiff growing out of the alleged negligence of the defendant in backing its train upon him without warning or signals, and without having a lookout at the rear end of the train. Trial to a jury, resulting in a verdict and judgment for plaintiff in the sum of seven thousand dollars. Defendant appeals.</p>

— Hon. G-. W. Burnham, Judge. Gr. A. Miller & Sons and V. A. Thomas executed their joint note to the plaintiff bank for one thousand dollars April 28, 1892. E. E. Hartung is the cashier of the plaintiff bank. On the back of the note are the following indorsements: “Pay E. E. Hartung or order.

— ITon. W. A. Spurrier, Judge. Action at law to recover the purchase price of certain strawberries sold and delivered to the defendants. Defendants admit the purchase, but plead that the berries were not of the character and quality ordered. They say that when delivered the berries were badly decayed, and were not worth to exceed the sum of one hundred and sixty dollars, which amount they tendered to the plaintiff, with costs of suit.

— Hon. J. P. Oliver, Judge. Action in equity, wherein the plaintiff and defendant, husband and wife, living apart from each other, each ask that the selection of a homestead made by them severally in a certain eighty-acre tract of land owned by the defendant be confirmed.

T. F. Stevenson, Judge. Action at law to recover an amount alleged to bave been paid as a liquor tax, under protest. There was a trial by the court without a jury, and a judgment in favor of the plaintiff for the amount claimed. The defendants appeal.

— Hon. William G. Thompson, Judge. Proceedings to condemn a portion of the plaintiffs’ farm for sewer purposes. The damages were fixed at three thousand two hundred dollars, and plaintiffs appeal.—

— IIon. J. D. Gamble, Judge. Dependant was charged by indictment with the crime of assault with intent to inflict a great bodily injury. From a judgment of conviction, he prosecutes this appeal.—

- — TIon. Thomas F. Stevenson, Judge. John Morris died December 15, 1893, and during that month, as deputy inspector of oil, had tested three thousand, three hundred and seventy-six barrels of oil, entitling him to charge as fees the sum of three hundred and thirty-seven dollars and sixty-one cents.

<p>1 larceny: evidence. Soon after an owner missed a steer, one similarly marked, appeared in a certain pasture, where it remained until a certain day, during which, it was seen to stand near a spot where the entrails of a steer were afterwards found. A gun shot was heard on that day, and fresh wagon tracks and mule tracks passed by the entrails, and led to and from the home of one of the defendants, and defendants were about the pasture about the same time. The tracks showed that one of the mules had a broken hoof, similar to a hoof of one of defendant’s mules. Next day fresh steer meat was found in defendant’s smoke house- Held, sufficient to sustain a conviction for larceny.</p> <p>4 Same. There was evidence that defendants killed another’s steer, and fresh meat was found in defendant’s smoke house. Defehdant testified that the meat came from a steer of his own. Held, proper to refuse to charge to acquit if the jury found that the meat came from his steer, as such fact was not necessarily inconsistent with his guilt</p> <p>2 Corpus delicti. The corpus delicti of larceny may be established by circumstantial evidence.</p> <p>3 Instructions. A charge that an intent to appropriate another’s property is an ingredient of larceny is not erroneous, as failing to state that the intent must be “felonious.”</p> <p>4 Same. Where defendant, accused of larceny, denies taking the property, a-failure to define the intent of taking more fully than to state that accused must have intended to appropriate the property to his own use is harmless.</p> <p>4 Same: Imp'achment, An instruction to reject the evidence of witnesses if their testimony is not believed, is proper.</p> <p>5 Misconduct of juror. The mere fact that a material prosecuting witness treated two of the jurors to beer, in a saloon, before any deliberation on the verdict was commenced, is not sufficient to show that the jurors were guilty of misconduct.</p> <p>6 Talesman: objection below. An accused’s objection that the first appearing talesman, drawn under Code, section 349, was called to the jury box, without reference to the order in which names were drawn from the talesmen box, is waived, if not made before the jury is accepted.</p>

— Hon. W. II. Tedford, Judge. Action iu equity to subject property claimed by the defendant to a judgment in favor of the plaintiff, and against the firm of J. W. Wells & Co. There was a hearing on the merits, and a judgment in favor of the defendants for costs. The plaintiff appeals.

— IIon. J. H. Apple-gate, Judge. Action iu equity for the partition, of real estate. Eliza J. Bartlett claims to be the owner of the real estate, and both she and her co-defendant, Eulah H. Bartlett, contend that, if the plainiff has an interest in the property, this action was prematurely brought. There was a hearing on the merits, and a decree from which the defendants named appeal.

— Hon. F. B. Gay-nos, Judge. The defendants were jointly indicted for the crime of larceny of twenty-two dollars and fifty cents in money from the person of John Oullinan. The defendant John Fisher pleaded not guilty, and was separately tried, convicted, and judgment of imprisonment in the penitentiary for two years and for costs rendered against him, from which he appeals.—

— Hon. M. J. Wade, Judge. Action to foreclose a chattel mortgage covering a stock of goods owned by J. V. Hatter in his lifetime, alleged to have been executed February 6, 1896, by John L. Miller, as his agent. The defendant Aaron Cover has two mortgages, each covering the same stock of goods, executed by Hatter on the twenty-eighth day of February and the twenty-third day of April, 1896.

— Plow. A. S. Blair, Judge. Plaintiee, a taxpayer of the city of Waterloo, brings this action to restrain the defendants, the mayor and council of said city, from enforcing a certain resolution creating a new ward in said city. Defendants’ demurrer to plaintiff’s petition was sustained, and, plaintiff electing to> stand on his petition, judgment was rendered against him, from which he appeals.

— IIon. P. B. Wolfe, Judge. Action to recover upon two policies of life insurance. Both parties appeal'from certain intermediate orders of the court. The appeal of defendant having been first perfected, it will be denominated the “appellant.”

— Hon. N. W. Macy, Judge. Indictment for rape on a female under tbe age of thirteen years. Verdict of guilty and a judgment thereon. The defendant appealed.-

— Hon. Henry Bank, Jr., Judge. This case is by leave submitted on a typewritten abstract, which shows as follows: An indictment charging the defendant with murder in the first degree, signed: “A true bill. P. M. Mathews, Foreman of the Grand Jury,” — was returned and filed October 11, 1897. October 13, 1897, the defendant pleaded not guilty. R. M. Marshall was appointed to defend, and by consent the case was continued.

<p>Wages: right to recover of stake-holder. One who wagered money cannot recover Ms share of the stakes from the stake holder, whátever the outcome, unless, before payment to the other wagéring party, the former repudiated the transaction and notified the stake-holder not to pay the money; and his recovery is defeated if he merely gave notice not to pay the wager until further notice.</p>

— IIon. William Hutchinson, Judge. The claim for damages contained in the petition is based on the employment of the plaintiff as janitor for one year, and the breach of such contract by discharging him within four months without cause. There is no allegation in the petition of the presentation of this claim to the board of directors of the defendant, though the failure so to do is expressly averred in the answer. The other issues need not be stated.

— Hon. Robert Sloan, Judge. Plaintiff, claiming title under a sheriff’s deed issued in pursuance of a sale made on execution against Mark Bethenoid, defendant’s husband, brings this action to recover possession of lots 2, 3, and 4, block 16, in the town of Farming-ton.

— Hon. W. D. Conrad, J udge. Defendant is accused of tbe crime of tbe murder of her busband by tbe administration of poison. Two trials bave been bad, tbe first resulting in a verdict of guilty, upon which she was sentenced to imprisonment for life, and tbe second, in a like verdict and sentence. Appeal was taken to this court from tbe first conviction, and tbe case was reversed. See 102 Iowa, 656. This appeal is from tbe second conviction.—

<p>Appeal from Pollc District Court. — Hon. W. F. Conrad, Judge.</p> <p>The defendant, indicted for and convicted of the crime of embezzlement, appeals.</p>

— How. P. B. Wolee, Judge. Action in equity for the partition of real estate. There was a hearing on the merits, and a decree for the plaintiffs. The defendants appeal.

— Hon. J. L. Husted, Judge. The issues in this case arise by objections to the probate of the will of Alice Goldthorp, deceased, on the application of proponents. • The grounds of objection are: First, unsoundness of mind of the testatrix; and, second, undue influence. At the conclusion of the evidence the court, on motion of proponents, directed a verdict in their favor, and the contestant appealed.

— Hon. M. J. Wade,. Judge. Action in equity to cancel a mortgage which is alleged to have been fraudulently executed. A demurrer to the petition was overruled, and the defendants, having elected to stand upon their demurrer, appeal.

— Hon. J. H. Henderson, Judge. Quo warranto proceedings to test the right of the defendants to exercise the functions of members of the town council of the incorporated town of Bussey, in Marion county. The trial court sustained a demurrer to the petition, and plaintiff appeals.

— Hon. C. M. Waterman, Judge. Defendants were indicted for willful and corrupt misconduct in office. A demurrer to the indictment was sustained, and the state appeals.

— Hon. Scott M. Ladd'5 Judge. Action at law for the conversion of seven head of cows. Defendant denied the conversion, and further pleaded that he sold the same under execution as the property of one William Sherman, and that William Sherman was the owner thereof prior to the sale. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.—

— Hon. J. J. Tolerton, Judge. This is an action to secure the admeasurement of plaintiff’s dower. There was a decree setting off her interest, but charging it with the sum of three hundred and seventy dollars and sixty-three cents. From the action of the court in thus subjecting her interest to the payment of this amount, the plaintiff appeals.

— Hon W. A. Spurrier, Judge. In March, 1895, defendant, Julia K. Howes, became a judgment debtor of the plaintiff. Prior to that time she was the owner of certain real estate described in the petition, and conveyed the same to her co-defendant SaDfoid. This action is brought, asking that the conveyance be adjudged void, as to plaintiff, because made to defraud her in the collection of her judgment.

William P. Wolf, Judge. Issue was joined in.an action for partition of certain real estate. Thereupon defendants applied for a change of'forum on the ground of the prejudice of the presiding judge, supporting the application by the affidavits of the defendants and about three hundred others.

— Hon. A. R. Dewey, Judge. This is a proceeding for the establishment of a claim against an estate. Judgment was rendered establishing the claim in the sum of seven hundred and twenty-five dollars and eleven cents, as a claim of the third class, and ordering the same to be paid. It was also ordered that statutory attorney’s fees be taxed in favor of plaintiff’s attorney. Defendant’s appeal.

F. R. Gaynor,. Judge. This is a contest between Laurinda J. Depee and Otis B. Depee over the avails of a certificate of membership in the Grand Lodge A. O. U. W., issued to one Alonzo Depee, the husband of Laurinda J. Each claims to be the beneficiary named in the certificate. The lodge makes no defense to the proceeding, but stands ready to pay the amount due to him who is found to be entitled thereto.

— Hon. H. M. Bemley, Judge. Defendants were indicted, tried, and convicted of the crime of stealing two hogs, one sheep, and one ram, and from the sentence imposed they appeal.

<p>Contracts. A written memorandum of agreement, as assented to by one of the parties, but not signed by him, is admissible against him to prove the contract.</p> <p>Measure of recovery. Where defendant in an action to recover a real estate broker’s commission admits having agreed to pay a commission, and plaintiff claims the agreement was for a specific sum, the measure of damages is the agreed commission, and not the value of the services.</p> <p>Harmless error. In a suit on an agreement of which an unsigned memorandum has been made, an instruction referring to the memorandum as a written contract is harmless, since the contract is the basis of recovery, whether it be written or oral.</p> <p>Appeal: Abstract. An abstract will not be stricken because it does not contain all the evidence, where it contains everything essential to enable the court to pass on the errors urged.</p> <p>Additional abstract: ^ Costs. Where appellees’ additional abstract contains matters not required to pass on the questions argued, its cost, except as to that portion containing necessary matter, will be taxed to him.</p>

— Hon. A. N. Hobson, Judge. The action is in equity by J. H Powers for an injunction to restrain A. Winters and another, defendants, from conducting a saloon, and the petition makes it appear that they are so engaged in violation of law. At the appearance term the defendants answered by a general denial. The following then appears: “New Hampton, Iowa, December 8,1897.