Volume 108 — Iowa Reports

<p>Appeal from Dubuque District Gourt — HoN. Feed O’Donnell, Judge.</p> <p>Suit in equity for a divorce. Tbe defendant also brought a like suit against the plaintiff, and the two actions were consolidated; defendant’s petition being treated as a cross bill. The trial court denied the relief asked by each, and both parties appeal. As defendant first perfected her appeal, she will be called the “appellant.”</p>

<p>2 4 Divorce and Marriage: presumptions. On the issue whether a claimant under a policy is legally a beneficiary of a life policy as the legal wife of the insured, it will be presumed that he obtained a divorce from a first wife before he married claimant. (In this case the evidence showed divorce as much as first and second marriage. — Reporter.)</p> <p>1 3 Pleading: admissions. Matter in reply, by way of confession and avoidance, does not dispense with proof of allegations of the answer which stand denied by operation of law. W hether such proof would be made by using the reply in evidence, is left undecided.</p> <p>5 Proof of loss: Waiver. The attorney for the beneficiary under a policy in a mutual benefit association wrote to the insurer, informing it of the death of the insured, and asking what was needed by way of proofs. The insurer replied that the insured liad been suspended for nonpayment of dues, and that, if the attorney “understood the laws of Iowa governing this class of insurance, you [he] would undoubtedly hesitate to have taken any action in the case without further evidence.” Held a waiver of proofs of death, but one not available because not pleaded.</p> <p>6 Plea and proof. McClain’s Code 1888, section 1734, providing that the assured shall give the company or association notice in writing of the loss, accompanied by an affidavit stating the facts as to how the loss occurred, applies to mutual benefit associations; and hence; where the giving of due notice is pleaded, and denied by the answer, plaintiff must prove,.not only the giving of notice but also the making of the affidavit.</p>

<p>2 Mulct taws “single room.” A room fronting on a street, with a door opening out on it, and another door leading to another room, in which are stored the liquors sold in the former, is not “a single room having hut one entrance,” within Code section 2448, Subdivision 4, permitting the sale of intoxicating liquors in such room under certain conditions.</p> <p>1 Liquor Selling; jury question. Where accused admits a sale of pepsin bitters after notice not to sell intoxicants to the person in question, and a witness testifies that pepsin bitters is intoxicating, the question is for the jury whether the sale is within Code, section 2448, subdivision 11, prohibiting the selling of intoxicants to any person whose relatives have by written notice forbidden such a sale.</p> <p>8 Jurors: knowledge oe disqualifications. The fact that a juror was a member of the jury on a former trial of the case is no ground for a new trial, though counsel for accused were unaware ■ of that fact, where it does not appear that accused himself had no knowledge thereof.</p>

<p>Appeal from Wright District Court.- — -HoN. B. P. Biedsall, Judge.</p> <p>The defendant appeals from a judgment convicting him of the crime of cheating by false pretenses.'</p>

<p>Appeal from KeoJculc Superior Gourt. — Hon. R. H. Bell, Judge.</p> <p>Balpi-i R. Teller became -a member of tbe defendant association in July, 1883, and bis certificate entitled bim to insurance in tbe sum of two thousand five hundred dollars; tbe certificate, by its terms, expiring on tbe twelfth day of July, 1893. This action is brought, alleging that Ralph R. Toller died in January or February, 1893, ami that tbe fact of such death, was not known till May, 1894; and a recovery is sought under the terms of the certificate. The answer makes admissions and denials, and sets out that the certificate of membership provides for proofs of death to be made within one year after death occurred, and denies the fact of the death of Teller, or that proofs of loss or death were made as required. Some other facts will appear in the opinion. The district court gave judgment for the plaintiff, and the defendant appealed.</p>

<p>5 Damages: duty to mitigate. A physician, who in an action for injury to plaintiffs leg, had testified that the adhesion was not to the bone, but to the fasciae; that it did not interfere with the range, but with the freedom of motion; that the wound might be painful, with changes of the weather, and would be so under any condition oí weather ii the nerves were caught op in the scar,— should be allowed to testify whether a slight surgical operation, involving but little inconvenience to the patient, would break adhesion, and restore the leg to its normal use, so that there would be no retarding of motion, or special inconvenience from the scar, as if such was the case, it was plaintiff’s duty to alleviate her injury, and she could not recover for consequences which might thus be avoided.</p> <p>10 Instkuctions. An instruction, in an action for personal injury, that the jury should determine to what extent plaintiff had been disabled, and whether such disability will “probably” continue, and allow her for such disability such sum as the evidence shows her entitled to, is not erroneous as allowing recovery for disability other than what the evidence showed was reasonably certain to continue, especially where in the same instruction, the jury were told that plaintiff could only recover such damages as were caused solely by the accident, in determining whether there would be future damages.</p> <p>9 Pleading. A prayer for judgment for a certain amount because of permanent injury to plaintiff’s leg is sufficient, it the absence of a motion for more specific statement, to allow a recovery for loss of earning capacity resulting therefrom.</p> <p>8 Married Woman: separate employment. Evidence that the plaintiff, a married woman, owned a sewing machine, and took in sewing regularly, and made thereby five to ten dollars a month is evidence of a separate employment sufficient to allow her, in an action for personal injury, to-recover for loss of earning capacity.</p> <p>1 Evidence: sidewalks. Evidence in an action against the city for injury from a defective sidewalk, that there was no change in the condition of the walk for a month after the accident, is admissible; there being other evidence as to the condition just after the accident.</p> <p>8 Same. Admission of evidence as to the condition of a sidewalk two hundred feet from the place of the accident is not error; there being evidence that the walk for the distance of the entire block within which the accident occurred was out of repair, and in a dangerous condition.</p> <p>2 CONCLUSION. Testimony that from the time witness noticed the sidewalk till plaintiff was injured thereby, a period of six months, “it did not get in any better shape,” is not a mere conclusion but an affirmation that there was no change in its condition.</p> <p>4 Same. Testimony in an action for personal injury, that plaintiff “looked bad,” that apparently she could scarcely walk, and that she lifted her foot very tenderly, is admissible.</p> <p>6 Instructions: Sidtwnlk. Where, the evidence is that the sidewalk was continuously in bad condition for the entire block within which the accident happened, an instruction that the evidence to show that boards were loose in other places in tire same block was to be considered only on the question of notice does not direct separate and distinct defects to be considered.</p> <p>0 Same. An instruction that the evidence tending to show that the sidewalk was out of repair a short distance from the accident was to be cons!dered only ‘ for the purpose of tending to show, if it does (and that is for you to say), whether or not” the city should, by the exercise of reasonable care, have had notice of the condition of the walk where the accident happened, does not assume a state of facts to exist, but leaves it to the jury to say whether . the evidence tended to show that the city had notice of the defect causing the accident.</p> <p>7 Harmless Error. An instruction telling the jury not to consider the amount of sidewalk the city had to maintain is not prejudicial though there is no evidence regarding the matter.</p>

<p>Certiorari: by tax payer: Review of ordinances. A petition to review by certiorari the validity of a city ordinance, by one alleging that he is a citizen and tax payer will not lie where it does not show that he had any right which was affected by the ordinance not common to all resident tax payers and water consumers.</p>

<p>Appeal from Van Burén District Gourt. — Hon. T. M. Fee, Judge.</p> <p>The defendant is an incorporated town. The plaintiffs, Henry Hartrick and Emma Fitcbenmneller, are owners of property abutting on State street, in said town. The street has no established grade, and is not, legally speaking, permanently improved. The two plaintiffs are owners of adjoining lots on said street, the course of the street being east and west. West of the lots owned by Fitchenmueller is Miller's block, and east of Hartrick is the lot owned by Thero, and east of that what is shown on the plat as Sterling Mills. These properties embrace all abutting property on the north side of State street, between Second and Third streets; the Miller block being on Second street, and Sterling Mills on Third street. The Thero and Sterling Mills lots have been improved, and in front of the buildings thereon is a sidewalk about three feet above the natural surface of the ground on that side of the street; and a grade or direct line from the surface of this sidewalk, at the west side of the Thero lot, to the Miller block, running past the lots belonging to the plaintiffs, would be about three feet above the natural surface at the east end, and about one foot at the west end. The town council has constructed a walk from the Thero lot west, in front of, the lots belonging to plaintiffs, on the line we have described, and giving it that elevation above the natural surface. This action was brought to enjoin the defendant from erecting or maintaining such a walk, and upon the trial below there was a decree for plaintiffs, and a mandatory injunction awarded commanded the defendant to remove the walk so erected. The defendant appealed.</p>

<p>Will: what is. An instrument executed and witnessed as provided for in a case of a will, and intended as such by deceased, is such though reciting, “I agree to will.”</p>

— Hon. J. L. Iíusted, Judge. ProoeediNG in probate for the allowance of a claim against the estate of decedent, There was a trial by the court without a jury, and an order allowing the claim. The defendant appeals.

<p>Appeal from Dubuque Distmct Gourt. — FIon. Feed O’DONNELL, Judge.</p> <p>ActioN to recover damages for malicious prosecution. Trial to jury. Verdict and judgment for plaintiff. Defendant appeals.</p>

— Hon. D. R. Hind-maRj Judge. ActioN at law to recover tbe purchase price of certain cigars sold and delivered tbe defendants. Defendants admit tbe account, but plead a counterclaim for breach of tbe contract under wliicb the cigars were sold. Trial to a jury. Verdict and judgment for plaintiff, and defendant Allington appeals.

— PIon. J. J. Tolee-ton, Judge. CeeditoRs’ bill to subject certain lauds, the title towbicb is in W. H. Malvin and S. S. Malvin, to the payment of a judgment held by plaintiff against Sarah Malvin. The trial court subjected certain of the lands, and denied relief as to the remainder, and both parties appeal. As the defendants first perfected their appeal, they will be called the appellants. A statement of the issues will be found in the opinion.—

Appeal fr.om Davis District Court. — Hour. T. M. Fee, Judge. AotioN for breach of promise of marriage. Trial’ to a jury, verdict and judgment for plaintiff, and defendant appeals.-

<p>2 Larceny: Jury question. Shortly after defendant left a relative’s house, where he had been visiting, they missed some gold coin and paper money. No one else except the family had free access to the room where the money was kept, and defendant knew the money was kept there and was once found in the room where it was kept. Defendant purchased a ticket to a place to which he had previously stated he was going, but instead, he went directly to another place; claiming to have done so to avoid riding on a freight train. The following day he deposited in a bank in the latter place money corresponding substantially with that missed. He claimed to have had the coin a number of years, keeping it in a purse which he lost before he made his visit, but the finder testified that there was no gold in the purse. Defendant had a small account with the bank and claimed to have had a large amount of money at interest during all the time he claimed to have had the gold. He does not explain why he failed for so long to deposit the money he claims to have carried, nor why he did not also put U on interest. Held, that a conviction of larceny was sustained, though defendant’s good character was proven.</p> <p>1 Chakacter as evidence. Good character is not a defense, but should be considered, in connection with all the other facts, in determining guilt; its weight being solely for the jury.</p> <p>3 Instructions: Bequestwg. In a case where the evidence is wholly circumstantial, where the court charges that if the facts are proven beyond reasonable doubt, sufficient to satisfy the jury of defendant’s guilt beyond all reasonable doubt, they may convict— error cannot be predicated on its failure to add, of its own motion, that conviction must be consistent with every reasonable hypothesis of guilt, and inconsistent with any reasonable hypothesis of innocence.</p> <p>4 Same. The rule that there should be no conviction on circumstantial evidence unless the facts establish the guilt beyond all reasonable doubt and be incompatible with any reasonable hypothesis of innocence, does not refer to all facts, but to such as are essential to conviction.</p>

— Host. Obed Caswell, Judge. The defendants appeal from judgment convicting them of burglary, and sentencing each to a term of five years in the penitentiary.

— Hon. H. M. Remxey, Judge. At the general election in 1897, contestant was the Democratic, and incumbent tbe Republican, candidate for the office of sheriff of Jones county. The board of county canvassers, on the face of the returns, declared the incumbent, Arnold, elected, the returns showing a majority in his favor of seven. Voorhees contested the election, and the court of contest found Arnold elected by a majority of three.

— IioN. William TIutohiNSON, Judge. Suit in equity to quiet title and to have certain mortgages held by defendant canceled and released. Decree for plaintiff, and defendant appeals.

— HoN. P. B. Wolfe, Judge. PlaiNTiff, claiming to be the owner in fee simple under a warranty deed from her husband, H. L. Williams, of a certain 80-acre tract of land in Clinton county, Iowa, brings this action to quiet her title thereto as against the defendants, and to recover rent for the years 1893 and 1894. The defendants answered, denying that plaintiff is the owner of said land or entitled to rents as claimed.

- — Joi-iN C. Sher-wiN, Judge. This case is before us for further consideration, a rehearing having been granted. It is an action to recover for personal injuries sustained by plaintiff when in the employment of defendant as head brakeman on a freight train.

— HoN. G. W. Wake-bteld, Judge. Creditors’ bill to subject certain real estate, the record title to which is in. Miranda J. Winch, L. W. Fallon, R. A. Welch, and M. J. Fitzgibbon, to the payment of a judgment held by plaintiff against Seth F. Winch. _ The trial court granted the relief asked, and defendants appeal .

— HoN. C. M. WATERMAN, Judge. The following are facts conceded or found in tbis case: Tbat the plaintiff is a corporation organized under the laws of the state of Illinois, and the defendant is a corporation organized under the laws of Iowa; that in 1883 various breeders of red polled cattle formed or acted together as a society or club in the interest of that breed of cattle, and called themselves the Red Polled Cattle Club of America, the society being unincorporated; that…

- — Hon. John A. Story, J udge. AotioN for an accounting of money received on certain mortgages, and praying for tbeir cancellation. The defendant Ainley asked for judgment for the amount due, and decree of foreclosure. The district court found a balance of six hundred and twenty-one dollars and forty cents owing Ainley, and entered a decree accordingly. Ainley appeals.—

<p>Appeal from Clinton District Court. — IioN. P. B. Wolee, Judge.</p> <p>ActioN upon a policy of life insurance. There was a judgment in plaintiffs favor.' Defendant appeals.—</p>

<p>3 Attorney and Clients withdrawal of attorney. Where a client, after suit has been brought, denies liability for fees, unless suc-cessfui, the attorney may withdraw, if his remaining is not necessary to a successful conduct of the suit.</p> <p>3 Same: Burden of proof. Where an attorney withdraws from a suit, it cannot be presumed, in the absence of evidence, that the subsequent adverse result to his client was due to his withdrawal.</p> <p>4 Authority. An attorney is not authorized, on his own motion, to commence affirmative proceedings to keep alive a judgment which he has for collection.</p> <p>9 Contract.' Jury question. Replevin being brought against a judgment creditor and a levying officer, the attorney for the former employed another attorney, who, with knowledge of both defendants, conducted the defense In a suit against such defendants by the second attorney, for services, the evidence as to whether the first attorney held the judgment to collect on a contingent fee basis, and with no authority to employ assistance, was conflicting, the second testifying that the creditor admitted that the first attorney had such authority. There was evidence that the officer had requested the second attorney to take part in the case. Held, that the issue of an agreement by defendants to pay the second attorney for his services was for the jury.</p> <p>5 Charge and Proof: Fraud. Under an instruction that recovery is authorized where an attorney necesitated a transcript by putting into an abstract filed by him, statements as to evidence which he knows to be false, the attorney is not liable for putting in such evidence recklessly while having, reasonable ground to believe that the statements are untrue.</p> <p>0 Same. Negligence of an attorney. In an action by an attorney for services, the jury entered a general verdict in his favor, and found specially that he was negligent in certain matters, as claimed by the client. The court had instructed that if plaintiff was acting under the directions of another attorney, who had sole control of the case, he would not be liable for negligence. Held, that the special finding was not inconsistent with the general verdict.</p> <p>7 Evidence: Harmless error. In a suit by an attorney for services, in rendering which the client claimed he had been negligent, the erroneous admission of evidence for the attorney on the issue of negligence was harmless, where the jury found against him thereon.</p> <p>7 Same. Where a fact is shown in evidence without conflict, error in excluding further evidence thereof is harmless.</p> <p>8 Offer foe special purpose: Contradiction. Where the transcript of testimony given by a witness in one case is introduced in another, the jury may compare the testimony therein with that given by the witness in the second case, though the transcript was introduced merely to show what the witness “said on a given issue” and not to show that his testimony in the transcript was truthful.</p> <p>2 Appeal: Review: Judgment non obstante. By moving for judgment notwithstanding a general verdict, on the ground that the special findings are inconsistent therewith, a party does not waive his right to complain, on appeal, of other errors.</p> <p>1 Notice of appeal: Clerk and deputy. A notice of appeal may be served on a deputy clerk, though the clerk, who is not present, is accessible at the time,</p>

<p>4 Intoxicating Liquors: contempt Under Acts Twenty-fifth. General Assembly, chapter 62, section 19, known as the ‘ Mulct Law,” providing that, when any of the 'conditions of the act should be violated, persons engaged in the sale of liquors under the act should be liable to the penalties provided by Code 1873, Title 11, chapter 6, and under section 1540 of the latter chapter, making servants employed in the sale of liquors in violation of the chapter subject to the penalties therein provided, one engaged as a bartender in carrying on such a business can be found guilty of contempt in violating an injunction in a decree forbidding the further continuance of the business.</p> <p>4 Same. The payment by a saloonkeeper oí the tax required by Acts Twenty-fifth General Assembly (Mulct Law) does not relieve his bartender from the charge of contempt of an injunction restraining both of them from selling liquors where prior to the sale in question the conditions of the act had been violated by sales to minors, which violation by section 19 removed the protection afforded by the act, although the sales to the minors were made by the saloonkeeper and not by the bartender.</p> <p>á Injunction: Service of writ. Where defendants enjoined were in court by attorney when the decree of injunction was rendered, they are chargeable with the knowledge of its contents; and the decree need not be served upon them, to render them guilty of contempt for violatina the same.</p> <p>3 Evidence. Where in an action to enjoin a liquor nuisance, plaintiff introduces an affidavit of one alleging that he was an employee in defendant’s saloon, and that the owner was conducting the place in compliance with the mulct law, plaintiff is bound thereby, so far as it is not shown to be untrue by other evidence.</p> <p>1 Contempt: Review The Supreme Court may, upon certiorari to review an order dismissing an application to punish the violation of an injunction as a contempt, inquire whether the injunction was violated, notwithstanding that the district judge found that a contempt had not been committed.</p>

— Hon. F. K,. Gay-nor, Judge. ActioN to recover for personal injuries caused, as alleged, by the negligence of the defendant. .There was a jury trial. Verdict and judgment for plaintiff. Defendant appeals.

— ITon. W. B. Quar-ton, Judge. Suit in equity to foreclose a mortgage upon certain lots in the town of Estherville. The trial court rendered judgment for the amount of certain notes executed by the defendant Kent, but denied the prayer for foreclosure of the mortgage. Plaintiff .gnd the Kents appeal.

— Horn J. W. BolliNger, Judge. The defendant is a member of the plaintiff association, and has been since some time prior to July 1, 1896, and owns sixty-five shares of its stock, of the par value of six thousand five hundred dollars, for which he executed a bond by which the terms of payment were fixed at six per cent, interest per annum thereon, and seven per cent, premium per annum thereon, payable monthly, on the first day of each month, until the dues on the stock…

— Hon. P. B. Wolfe, Judge. ^ROceediNG in probate for tbe proof of a claim against tbe estate of John Parkinson, deceased. There was a trial by jury and a verdict and judgment for tbe plaintiff. The defendant appeals.

— Hon. W. F. CoNrad, Judge. ON the fourteenth day of November, 1895, Newman Bros, and F. K. Ebersole entered into' a written agreement, by the terms of which the latter agreed to deliver to that firm a large amount of machinery for a brick manufacturing plant at the price of six thousand two hundred and fifty dollars, on which he was to receive from that firm a stock of hardware at invoice prices, with freight added, and the balance in cash.

— Hon. L. E. Eellows, Judge. Action to abate a nuisance caused by the sale of intoxicating liquor. ’ Erom a decree in defendant’s favor, plaintiff appeals.

— Hon. E. W. Eici-iel-BERGER, Judge. ActioN at law, aided by attachment, to recover eight hundred and fifty dollars, with interest, on a written contract. Defendant answered, admitting the execution of the contract, denying that anything was due thereon, and alleging that the same was paid in a manner as will hereafter appear. Defendant, by way of counterclaim, asks to recover five hundred dollars damages for a wrongful suing out of the attachment.

— Hon. T. M. Fee, Judge. ActioN in equity to recover an amount alleged to be due on two promissory notes, and to foreclose a chattel mortgage given to secure their payment. There was a hearing on the merits, and a decree for tbe defendants. Tbe plaintiff appeals.

— Hon. B. P. Bird-ball, Judge. Action at law on a subscription for the payment of money. A demurrer to one division of the answer was sustained. There was a trial by jury, and a verdict and judgment for the plaintiff, The defendant appeals.

— IToN. J. F. Clyde, Judge. The plaintiff appeals from a judgment ‘duly entered on a verdict returned by the jury in favor of the defendant.—

— How. F. E. Gay-hoe, Judge. ActioN in equity to set aside a sheriff’s sale of lands, and to enjoin the execution and delivery of a sheriff’s deed thereunder. From the decree rendered, the defendants appealed.

PROCEEDING by certiorari to review an order of the district court dismissing an application for the punishment of one Noel for contempt, in violating an injunction.-—

— Hon. S. If. Weaver, Judge, PlaiNtifp prosecutes this action to recover damages for personal injuries, and for injury to his property, caused, as is alleged, by the negligence of the defendant, and without fault or negligence on the part of the plaintiff. The defendant answered, denying generally, and, upon trial had, verdict and judgment for four thousand dollars were rendered in favor of the plaintiff. Defendant appeals.

— IíoN. A. N. HobsoN, J udge. Suit in equity in which plaintiff seeks to recover her distributive share of certain real estate said to have been owned by her deceased husband. Decree for plaintiff and defendant appeals.-

— HoN. W. B. Quar-toN, Judge. ActioN to enjoin a nuisance caused by the sale of intoxicating liquors. Prom a decree granting the relief prayed, the defendant appeals.

<p>1 Illegal Sale of Liquor Bills of Lading. A banker selling bills of lading at his bank to whoever might apply, thereby enabling the purchasers to, obtain intoxicating liquors at a freight depot, is guilty of selling the liquors; such dealings precluding him from asserting that he was a mere collecting agent for the consignors of the liquors.</p> <p>2 Nuisance: Defendant owning neither liquor or building. He is also guilty of maintaining a nuisance defined as using a building in which intoxicating liquors are sold unlawfully, though he owned neither the building nor the liquors.</p>

<p>1 3 Circumstantial Evidence: instructions. Where the evidence is wholly circumstantial, an instruction that the jury need not be satisfied beyond a reasonable doubt of each link in the chain of evidence relied on to establish guilt, it being sufficient if, taking the testimony all together, they are satisfied of guilt beyond such doubt, which instruction is repeated in substance, and no where limited or explained, is erroneous, as authorizing a conviction though an essential fact be not proved beyond a reasonable doubt. Such a charge is not equivalent to an instruction, that is not jncumbent on tlje st,g,te to prove beyond a reasonable doubt every Circumstance offered in evidence and tending to establish a fact essential to conviction.</p> <p>1 2 Same. ■ While it is not necessary that each essential fact in the chain of circumstances solely relied on to connect the accused with the commission of the offense, when separately considered, should be found beyond reasonable doubt, yet if conviction depends entirely on different circumstances arranged linkwise, each and every link must be established beyond a reasonable doubt.</p> <p>4 Same. Such instruction is also erroneous as requiring the jury to pass on each fact separately.</p> <p>5 REASONABLE ooubt. An instruction defining a reasonable doubt as one that the jury are able to give a reason for is erroneous, as, in effect, placing the burden on defendant to furnish reasons for acquittal and as requiring jurors to give a reason for their conclusion.</p> <p>6 Secondaky evidence. In a prosecution for arson, a copy of a copy of an insurance policy covering the burned property is not admissible as secondary evidence, where no reason is shown for not introducing the copy from the original.</p>

— HoN. W. B. QuartoN, Judge. The plaintiffs mortgage was established as a lien on the north half of lots 3 and 4 in block 58 of Estherville. Archer claimed the north third of these under a tax deed issued in 1897. Guerdet held a certificate of sale of the north half of the lots, issued December 6,1897, for nine hundred and sixtv-eight dollars and fifty-three cents mulct tax, penalties, and costs appearing on the treasurer’s books at the time of the sale.

— HoN. F. R. G-ayNOR, Judge. ONE John Ring, engaged in doing a general merchandise business at Hawarden, became financially embarrassed, and to secure his creditors executed a chattel mortgage on his stock of goods to the defendant A. G-. Anderson, another to the Northwestern State Bank,- and still another to plaintiff, on the same property, and also covering books of account.

<p>Appeal from Lyon District Court. — IíoN. John F. Oliver, Judge.</p> <p>ActioN upon a contract to purchase promissory notes. Judgment for plaintiff, and the defendant appealed.—</p>

— ITon. T. M. Gibeeson, Judge. PlaintifP, the beneficiary named in a policy of life insurance issued by the defendant on the twenty-first day of March, 1896, on the life of Otis S. Hogg, brings tbis action at law to recover three thousand dollars, with interest, on said policy; alleging the death of said assured on the first day of June, 1896, that proofs thereof were duly made, and that the defendant refuses payment; wherefore judgment is ashed.

'Appeal from Wright District Court. — HoN. B. P. Birdsall, Judge. Certiorari to tbe defendant board to review its proceedings relative to tbe assessment and levy of taxes for tbe construction of a ditcb under tbe provisions of tbe statute. Tbe ditcb in this .case is tbe same as that in question in tbe case of Aldrich v. Paine, 106 Iowa, 461, and tbe facts are the same, so they need not be repeated.

<p>3 Negligence: sidewalks: Tricycles. One injured while riding a tricycle on a sidewalk can recover only if the city was negligent in failing^ to keep the sidewalk in suitable condition for people to walk over, and he, while riding the tricycle, exercising due care, was injured because of such neglect.</p> <p>1 Knowledge op City: Jury question. Testimony that a defect in a sidewalk had existed fur about two months and strong testimony on part of persons who used the walk, and who ought to have known of a defect if it existed, that they did not know of it, leaves the knowledge of the city a jury question:</p> <p>4 Instructions and Evidence: future pain. Submission to the jury of the question of future pain, in action for personal injuries, is error; there being no evidence that there would be any, and plaintiff seeming at the time of the trial to be well of his injuries, so far as they would cause him pain.</p> <p>3 Ordinance: construction: Bicycle and tricycle. An ordinance against the use of sidewalks by “all varieties of vehicles known by the general term “bicycles,” or one providing that no one shall “lead, ride, or place any beast of burden or vehicle on any sidewalk,” other than going in or out of premises, or one prohibiting riding or driving other than between the curb lines of a street, has no application to a tricycle operated by hand for the convenience of one unable to walk.</p>

— HoN. B. P. Birdsaul, Judge. PlaiNTIEES commenced a suit in equity to* reform a deed made to them by defendants of an hotel property in the city of Port Dodge, and to recover the amount of a special assessment for curbing and guttering, levied against the property conveyed.

— Hoh\ W. B. Quar-toN, Judge.- The defendants are accused of maintaining a public billiard ball, in wbicb minors were permitted to remain and take part in playing billiards. Tbe court directed a verdict of acquittal on which judgment was entered. The' state appeals.

— How. Henry Bane, Jr., , Judge: ActioN to; recover upon a guardian bond. A demurrer to the petition was sustained. Plaintiff electing to stand upon the petition, judgment was rendered in defendants’ favor fox costs. Plaintiff appeals.

'Appeal from Louisa District Gourt. — Hon. A. R. Dewey, Judge. ActioN at law to recover the value of an interest alleged to have been owned by .the plaintiff in land conveyed by the defendant to a third person. When the evidence had been submitted, a motion for a verdict for the defendant was sustained, and a verdict for her was returned by direction of the court. The plaintiff appeals.

— HoN. Scott M. Ladd, Judge. ActioN in equity to quiet the title in the plaintiff to certain land described, as against the defendant E. Y. Noyce, upon hearing on the issues joined, judgment' and decree were rendered against' the defendant E. Y. Noyce, from which he appeals.

!Appeal from Woodbury District Gourt. — George W. Waee-eield, Judge. ActioN to quiet title. The facts, as presented by the record and in argument, are complicated. The primary inquiry is as to the validity of tax deeds. Prior to July, 1889, D. T. Hedges was the owner of lots 17, 18, and 19, in block 64, Pierce’s addition to Sioux City, Iowa.

— BEoN. W. B. Quak-ton, Judge. The plaintiff firm and the individual members thereof bring this action for judgment on a promissory note dated April 4, 1895, for seven -hundred and fifty dollars, executed by the defendants Daniel Kane and W. T. Kane to the plaintiff firm; also for a decree foreclosing a mortgage on real estate described, executed to secure the payment of said note.

- — Hon. N. W. Macy, Judge. In 1892 J. E. Gepford owned a certain house and lot in Ked Oak Junction, Iowa, and made a parol agreement with, the plaintiff, then a widow and the head of a family, to support him during his life, and to receive therefor the said house and lot; and, in pursuance of the agreement, plaintiff took possession of the property, and occupied it till 1895, when Gepford deeded plaintiff the property, for the -same consideration, and subject to an…

'Appeal from Story District Gourt. — Hoe. S. Weavek, Judge. Action at law to recover an amount alleged to be due on a promissory note. There was a trial by tbe court without a jury, and a judgment in favor of the defendant for costs. The plaintiff appeals. —

— Hon. Waltee I. Smith, Judge. Action in equity to subject property in the name of the wife to the payment of a judgment against her husband. Belief prayed was denied, and the plaintiff appeals.—

— TIoN. JohN N. Oliver, Judge. ■ Action to recover rent and for damages caused by the removal of outbuildings and fences taken by defendant. The action was brought originally in a justice court. IJpon hearing there had, there was a judgment for defendant. Plaintiff appealed, and the cause was tried in the district court, the result again being in defendant’s favor.

— IIoN. Williamc ITutchiNSON, Judge. Suit in equity to quiet title, for an injunction, and the appointment of a receiver, for an accounting and other equitable relief. Defendants claim that plaintiff's title to the real estate is held as security for money advanced, and is in fact a mortgage; deny that plaintiff has any interest in the crops raised upon the premises; and ask judgment for damages.

<p>Appeal from Calhoun District Court. — HoN. S. M. Elwood, Judge.</p>

— HoN. W. H. Tedeobd, Judge. 1 Au action to quiet title to tbe west one-balf of the northwest one-fourth and the northwest one-fourth of the southwest one-fourth of section 7, township 69, range 32 west of the fifth principal meridian, in Taylor county. Plaintiff’s title is based on a tax deed to one E. Manning, dated December 12,1872. At the date of the sale the legal title to the land was in one John B. Cook and the defendant, each an undivided one-half.

— How. William Hutch--iNSON, Judge. ActioN at law to recover of E. Kersebom, late treasurer of Plymouth county, and the sureties on bis official bond, an amount wbicb Kersebom is alleged to bave received as treasurer, and for wbicb be bas not accounted. There was a trial, and a verdict for the plaintiff by direction of the court. Erom the judgment rendered on the verdict the defendants appeal.

— HoN. C. P. Holmes, Judge. ActioN in equity to enforce and foreclose a lien upon real estate of defendant Smith. The lien is claimed .under certain certificates issued for paving a street upon which the property abuts. The intervener claims, and by cross bill seeks to foreclose, a lien in her favor, based upon certificates issued for curbing the same street. The contest is as to the priority of these liens. The district court gave judgment in intervener’s favor.

— Hon. S. M. Elwood, Judge. Suit in equity to establish and foreclose a mechanic’s lien. The defendant interposed a number of defenses, which will be referred to in the opinion. The trial court dismissed the petition, and plaintiff appeals.

'Appeal from Des Moines District Court. — Hon. James D. Smyths, Judge. ActioN to recover damages for personal injuries. Thero was a trial to jury. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. F. R. Gay-nob, Judge. ApplicatioN for a new trial in an action in equity brought for the partition of real estate and other relief. The application was denied, and the applicant, William McClin-toek, appeals.

— Hon. E. W. Eichel-BERGER, Judge. ActioN at law to recover tbe contract price of a car load of bag paper sold and delivered to tbe Iowa Paper-Bag Company, and wbicb it is claimed tbe Iowa Nationl Bank guaranteed. The paper-bag company made default and the issue was between plaintiff and tbe bank. Tbe bank alleged that tbe guaranty was without consideration, ultra vires, and void.

<p>Appeal from Louisa District Court. — IIoN. William S. Withrow, Judge.</p> <p>ActioN for damages. From a judgment for plaintiff, tbe defendants appeal. —</p>

<p>Appeal from Benton District Court. — HoN. Obed Caswele, J udge.</p> <p>ActioN on a policy of fire insurance. Judgment for plaintiff, and the defendant appealed.</p>

T. F. Stevenson, Judge. The A. 0. Mount Broom Company is a corporation, and made an assignment for tbe benefit of creditors about October 5, 1895, with G. B. Stewart as assignee. Prior thereto it was indebted to Albert Grefe in the sum of one thousand nine hundred and sixty-four dollars and twenty-three cents, secured by mortgage on personal property. Grefe filed his claim with the assignee, and ashed its allowance as a preferred claim, because secured by mortgage.

— Hon. N. W. Macy, Judge. Action at law to recover for services rendered. There was a trial by jury, and verdict and judgment for the plaintiff. The defendant appeals.

— HoN. Erane W. Eichelbergee, Judge. ActioN to recover the purchase price of a car load of paper shipped to the Iowa Paper-Bag Company. Defendant Daggett was originally joined in the action brought by the plaintiff against the paper-bag company and the Iowa National Bank, decided at the present term of this court. 108 Iowa, 333.

— HoN. W. A. Spurrier, Judge. These actions grow out of the same transaction, and tibe questions involved may very properly be considered together. The first is a proceeding by mandamus to compel the defendant, who is the county auditor of Polk county, to correct an assessment of plaintiffs’ property. The other is to recover taxes paid under protest, and which were levied upon the assessment complained of.

— IioN. W. E. GreeN, Judge. This case is before us on appeal, by the parties filing the statement of consent, from the judgment of the district court, “that the said petition and statement of general consent is, and the same is adjudged, insufficient,” and for costs against appellants.

— IíoN. T. M. Giberson, Judge. Action upon a written guaranty of a certain account. Defendant demurred to the petition, which set out the facts in full. The demurrer was sustained. Plaintiff refusing to plead further, judgment was rendered in defendant’s favor for costs. Plaintiff appeals.

— IioN. George W. Wake field, Judge. Plaintiff alleges in bis petition that about May 1, 1879; Bartholomew Markey died intestate, seised in fee of a' certain eighty acres of land, described, and that he “left surviving him, as his children and only heirs at law, the plaintiff and the defendant Peter Markey, his half-brother, and the deceased also left surviving him, as his widow, rhe defendant Mary Markeythat the plaintiff and defendants are each entitled to one undivided…

<p>Appeal from Appanoose District Qourt. — Hon. M. A. Roberts, Judge.</p> <p>Ti-ie petition alleges tbat the defendant employed one Anderson to load slack on cars at a particular side track, at a specified price per car; that the slack was in a pile twenty feet or more high next to this track; that, as taken from the coal mine, it was dumped on the top of the pile, where it burned and smouldered, while the bottom was cool and could be shoveled on the cars; that the defendant, knowing that between the pile and the car was a dangerous place to work, took no precaution to protect the plaintiff or other employes of Anderson; that it did not pour water on the top of the pile to cool it, though this the defendant so promised on plaintiff’s complaint, and plaintiff, by reason of such promise, continued, at such work; that because of defendant’s failure to make the place where plaintiff worked safe, by protecting it from the falling slack on the steep side of the pile, or cooling it with water, a large chunk or mass fell or slipped down, striking him on the arm and injuring him; that he knew nothing of the danger referred to; and he asks damages. The defendant demurred to the petition on the ground that it affirmatively appeared that plaintiff was not the servant or employe of the defendant, or under its control, at the time he claims to have been injured, but was the servant and was an employe of an independent contractor of the defendant. This demurrer was sustained, and, the plaintiff electing to stand thereon, judgment was rendered dismissing tbe petition, and be appeals.</p>

- — How. C. P. Holmes, Judge. January 25, 1897, H. T. Blackburn, as receiver, commenced action against the Capital City Oatmeal Company to foreclose a chattel mortgage on certain personal property, the description of which is not essential. Thereafter the German Savings Bank, of Des Moines, Iowa, of which Blackburn was receiver, was substituted as party plaintiff. To the suit, J. E. Stout, sheriff, J. M. Brown, the McEarlin Grain Company, and M. Riley are defendants.

— How. S. M. El-wood, Judge. Action at law to recover an amount alleged to be due on a policy of insurance. A jury was impaneled, a verdict was directed for the defendant, and a judgment was rendered in its favor for costs. The plaintiff appeals.

— Hon. G. W. Buen-hai£j Judge. Action at law upon a policy of fire insurance. Defendant pleads that it elected to rebuild, pursuant to a clause in its policy, and demanded of. plaintiff plans and specifications, which he failed and refused to furnish, but, on the contrary, proceeded to erect the building himself, and that it is discharged from all liability under its contract. Trial to a jury.

— Host. A. R. Dewey, Judge. The defendant is the owner of about one hundred acres of land, through which flows Skunk river. The defendant is now, and has been for some years, maintaining a dam across said river, on his premises, in a way to obstruct the free passage of fish up and down said river; and he has neglected, and still neglects and refuses, to construct and maintain over or across said dam a fishway for the passage of fish Up and down said river.

— IíoN. W. G. Thompson, J udge. DEPENDANT'S demurrer to the plaintiff’s petition was sustained; and, the plaintiff electing to stand upon the petition, and refusing to further plead, judgment was entered against • it for costs, from which judgment it appeals.—

— HoN. W. E. Conbad, Judge. Actiof in equity to establish and foreclose a mechanic’s lien. From a decree in favor of plaintiff and other mechanic’s lien claimants, who are made defenjdants and whose rights are asserted by cross petitions, the defendant Jones, owner of the real estate, appeals.

— HoN. Ben McCoy, Judge. ActioN aided by attachment to recover the amount due on a promissory note. The writ of attachment was levied on six promissory notes and other property, a receiver was appointed to take charge of the attached property, and judgment was rendered in favor of the plaintiff for the amount due on the notes.

. — Hon. S. M. -Elwood, Judge. ON the tweuty-seco-nd day of June, 1896, tbe plaintiff executed a written order to tbe Aultman Company, of Ohio, to deliver to bim a complete tbresbing outfit through its agent, K. H. Allen, at Early, Iowa, accompanied by a specific written warranty.

— HoN. James D, Smyth, Judge. ActioN at law to recover for personal injuries alleged to Have been caused by negligence on tbé part of tbe defendant. A jury was impaneled, and when the plaintiff had submitted his evidence the court directed a verdict for the defendant, and rendered judgment in its favor for costs. The plaintiff appeals. —

— Hon. M. A. Roberts, ' Judge. Action at law to recover on a judgment against tbe Hawkeye Coal Mining Company, it being alleged that the defendant is a stockholder in said company, and that his shares are not fully paid. There was a demurrer to the answer, which was sustained. Defendant electing to stand upon his answer, judgment was rendered against him- He appeals.

— HoN. D. R. HiND-man, Judge. ActioN on a beneficiary certificate issued by the defendant association. Judgment for defendant, and the plaintiff appealed.

— IíoN. A. W. WiLKiN-SON, Judge. The defendant was convicted of tbe crime of adultery, •and from tbe judgment, wbicb required that be be imprisoned in tbe penitentiary at Fort Madison for a term of six months, lie appeals.-

<p>Libel of the Dead: eight of aotioN by mothide, Code, section 5086, making the publication of libel concerning a deceased person, which tends to scandalize the surviving relatives of the deceased, punishable criminally, does not make the publisher of a libel concerning an adult deceased person civilly liable to the mother of the deceased for shame, humiliation, and mental anguish suffered by her on account thereof.</p>

District Court. — HoN. Lot Thomas, Judge. ActioN on life insurance policy. Judgment on verdict directed for the plaintiff, and the defendant appeals. — ■

— Lion. W. G. Thomx->-SON, Judge. ActoN against defendants, Osborne Bros., William M. Osborne, Lewis D. Osborne, and David Osborne, on a promissory note, and for the amount of an account against Osborne Bros., William M. Osborne, and Lewis D. Osborne, which it is claimed defendant David Osborne guarantied. The action was aided by attachment, which it is claimed was levied upon all the property of the defendants.

— IIon. Obed Caswell, J udge. ActioN in equity for tbe abatement of an alleged nuisance, and to enjoin tbe defendant from maintaining a place in wbicb to sell or to keep for sale intoxicating liquors in violation of law. There was a bearing on tbe merits, and a decree in favor of tbe defendants for costs. Tbe plaintiff appeals.

— TIoN. T. M. GtbebsoN, Judge. PlaiNtiee states, as bis cause of action, that on May 11, 1896, said company commenced an action against Shelly Tuttle for seven thousand nine hundred and seventy-eight dollars and four cents, and procured an attachment for two thousand dollars, which the defendant Cone thereafter levied upon twenty-one bicycles, “which were in possession of the plaintiff, and were his absolute and unqualified property;” that plaintiff served notice of his…

— HoN. W. B. Quau-toN, Judge. ActioN at law to recover damages caused by tbe publication by tbe defendant, in a. weekly newspaper, of tbe following, of and concerning tbe plaintiff: “Modern Justice (?) Should two men bold up a third man on tbe streets of Laurens in broad daylight, and rob him of sixty-five dollars to seventy-five dollars, tbe robbers would be sure to serve a term in tbe penitentiary, and tbe authorities might find it difficult to prevent them from being…

— HoN. M. A. Roberts, Judge. This is an application under section 2, chapter 186, Laws Twentieth General Assembly, to secure the drainage of wet lands. There was a remonstrance to the petition. Upon the hearing the board of supervisors found against the petitioners, who appealed to the district court. In the district court the cause was assigned for trial by jury. Peti-^ tioners moved that this assignment be set aside, and the action set for trial to the court.

— Hon. William Gr. Thompson, Judge. ActioN at law to recover an amount alleged to be due for the occupation and use of land. The cause was tried by the court without a jury, and judgment was rendered in favor of the plaintiff. The defendant appeals.

— Hon. Thomas F. Stev-ENSON, Judge. AotioN at law in which plaintiff seeks to recover compensation for services as a police matron of the city of Des Moines. Defendant denied all liability, and pleaded payment. The case was tried to the court, á jury being waived, resulting in a judgment for defendant. Plaintiff appeals.—

<p>1 Damage: husband and wife: Earnings of wife. In an action of a wife to recover damages for injuries inflicted, her loss of time cannot be considered as an element of damages, where it is not Shown that she has any employment apart from her husband.</p> <p>2 Evidences rEuavanCy. In an action to reoover for injuries inflicted by defendant it is error to admit evidence of their permanence, where the petition does not allege such fact.</p> <p>3 Same. Whether plaintiff is a member of any church is immaterial in an action to recover damages for injuries inflicted by defendant,</p>

— HoN. G. W. Burit-ham, Judge. MaNetta P. GattoN, having recovered a judgment against her husband, George Gatton, for six thousand five hundred and fifty-seven dollars, assigned it to the plaintiff, September 24,1896, as security for the payment of an indebtedness of one thousand dollars.

- — Hon. C. A. Bishop, Judge. This is a contest over the probate of the will of Bridget Carraher, deceased. The plaintiff and contestant alleges that the testatrix was not of sound and disposing mind at the time the will was executed, and that the same was procured through the undue influene of defendant, who is a son of the deceased. There was a trial to a jury, resulting in a directed verdict for defendant, and plaintiff appeals.

<p>1 Gifts: COMPETENCE of donor: Evidence. The donor was over 70 years of age, and his physical health was failing. His memory had failed, and he was in the habit of repeating things. Witnesses who well knew him testified that his mind a'nd judgment were sound. Another witness testified that he had a transaction with him and he was rational and intelligent. Held, insufficient to establish his incompetency to make a valid gift.</p> <p>2 Appeal: striking amendment to abstract. An amended abstract, containing material matter, filed by the appellee after the time required by the rules, will not be stricken.</p>

— Hon. William GL ThomrsoN, Judge. The plaintiff filed its claim, duly verified, February 11, 189J, for a balance of eight hundred dollars, due on subscription, to which was attached the contract in words following : “Chicago, Ill., June 20th, 1889.

— IIon. Thomas F. Stevenson, Judge. ActioN in equity to recover the amount alleged to be due on certain promissory notes made by the defendants Israel Bros, and W. 0. Israel, and to foreclose a chattel mortgage on two stocks of merchandise, with furniture, fixtures, and utensils usel in connection therewith, given to secure the payment of the notes. The petition also asked the appointment of a receiver.

<p>Appeal from Sac District Gourt. — HoN. S. M. Elwood, Judge.</p> <p>This appeal is by tbe defendants from a ruling sustain' ing plaintiff’s demurrer to their answer, and the judgment rendered agalinst them for want of further pleading. — ■</p>

— HoN. N. W. Macy, Judge. 1 This case, as we bave it, is a consolidation of a number of actions, wbicb were separately brought, but united and tried together fin the district court. We shall state the facts as briefly as possible, out of which the controversy arose, so that the issues presented may be fully understood. The Cass County Bank was an incorporation engaged, as its name would indicate, in the banking business. J. 0.

— HoN. T. E. Stevenson, Judge. Action at law upan a promissory note signed by defendant as surety for Milton W. Gregory. Tbe trial court sustained a demurrer to plaintiff’s petition, and plaintiff appeals.

— IíoN. W. Ii. Tedeoed, Judge. Action fo-r the balance due ou a contract to pay Elgin prices for butter made from milk furnished by the plaintiff and one hundred and fifty-one others (who have assigned their claims to him), less four cents per pound for making and marketing. The defense was a general denial. Verdict and judgment for plaintiff, and defendant appeals.—

— Hon. W. F. Conrad, ' Judge. Action in equity to ascertain tbe liability of the plaintiff on a certain written instrument, to ascertain the liability of the defendants Cole, McVey, and Cheshire on another written instrument, and for other relief. There was a decree, from- which all parties excepting Thomas A. Cheshire, R. F. Young, administrator, and Will Scoville, appeal. The record does not show the order in which the appeals were taken.—

— IIoN.' JOHN F. Oliveb, Judge. The demurrer to the petition' for new trial was sustained; and, as the plaintiff elected to stand on the ruling, the petition was dismissed, and it appeals.

— HoN. John F. Olivee, Judge. AotioN 'at law to- recover an amount alleged to be due as interest on an instrument in writing. A demurrer to tbe petition was overruled, and, the defendant refusing to plead further, judgment was rendered .in favor of the plaintiff ' for the amount claimed. The defendant appeals.—

— Hon. W. N. G-reen, Judge. DEFENDANT bad given three mortgages upon his real estate. The first was held by one Leet, the second by Coe, and the last by plaintiff. Plaintiff also held a chattel mortgage executed by defendant to secure the indebtedness due it. The Leet mortgage had been foreclosed, and the property sold under it. Plaintiff had become the owner of the Coe mortgage by assignment.

— Hon. Franillin C. Platt, Judge. ProceediNgs for tbe construction of tbe joint will of Mary Stumpenbousen and Henry Stumpenbousen.

— IíoN. Gr. W. BuRNHAm, Judge. ActioN to establish and quiet the title of certain lands in the plaintiff. There was a judgment for defendants, and the plaintiff appealed.

• Appeal from Pottawattamie District Court. — Hon. Walter I. Smith, Judge. Action at law upon an attacbment bond to recover damages for tbe alleged wrongful suing out of an attacbment. Defense, a general denial, and an ■ affirmative plea to tbe ■effect that tbe damages claimed by plaintiff have been paid by tbe recovery of judgment for tbe identical items claimed in this case in an action wherein plaintiff recovered upon an attacbment bond against, other attaching creditors.

— HoN. S. M. Elwood,. Judge. This action, wbicb is at law, involves the title to forty-acres of land. There was a trial to court, and judgment for plaintiff. Defendants appeal.

— TIon. William G. Ti-iompsoN, Judge. Action upon a promissory note. Plaintiff claims to be an indorsee thereof. The note was made by defendant Russell to Smyth Bros., defendant Clark signing as surety. It was held by the Mt. Vernon Bank as collateral* security for •a debt of the payee. The defense is that plaintiff paid the same to the Mt. Vernon Bank, and that upon its delivery to him it was duly stamped across its face as paid.

<p>A.ppeal from Page District Court. — Hon. N. W. Maoy, Judge.</p> <p>Action for tbe partition of real estate. Tbe trial court established and confirmed tbe respective interests of tbe parties, and directed a sale of tbe property. From that part of tbe decree fixing tbe interests of tbe various parties, defendants Pbcebe J. Flint appeals, and from tbe decree fixing tbe plaintiff’s interest certain of tbe defendants appeal. As Pboebe J. Flint first perfected ber appeal, sbe will be called “appellant.”</p>

<p>Appeal from Franklin District Court. — HoN. B. P. Bibd-SALL, Judge.</p> <p>ActioN for wages. Tbe defendant appeals from judgment on a verdict in favor of tbe plaintiff.-</p>

<p>Appeal from Blade Hawlc District Gourt. — How. A. S. Blahs, Judge.</p> <p>Action in equity to quiet title. Decree for plaintiff. Defendants appeal.-1-</p>

— HoN. Frane W. Eichelberger, Judge. ActioN on a note of ten thousand dollars, dated April 3, 1893, and payable in five years, on which three semi-annual interest payments had been made, and also to- foreclose a mortgage securing the same. The mortgage contained a condition that the' note should become due on failure to pay the interest promptly.

• Appeal from Allamakee District Oourt. — Hon. A. N. IIob-soN, Judge. ActioN at law to recover the value of certain promissory notes and other property. There was a trial by jury, a verdict for the defendant, and a judgment in bis favor for costs. The plaintiff appeals. —

— How. G-eorge W. Waiceeield, Judge. ActioN at law to recover damages for injuries sustained by plaintiff in a collision between trains on defendant’s line of road. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— Hon. D. Ryan, Judge. PlaiNtiffs are judgment creditors of the defendant Allen Stalker, and they bring tbis action in equity, seeking to subject to the payment of tbeir claims a tract of land, the title to which is in Milo Stalker, another defendant. There was a decree in favor of defendant. Plaintiffs appeal.—

— Hon. William G. Thompson, Judge. ActioN at law to recover on account of 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.—

<p>Appeal from Kossuth District Court. — Hon. Lot Thomas,. Judge.</p> <p>ActioN at law upon a certificate of membership in the defendant association. Defendant pleaded that the assured,. Louis E. Stephenson, committed suicide, and further claimed that no sufficient proofs of death were furnished within the-time required by law and the terms of the certificate. There-was a trial to a jury, resulting in a verdict and judgment for' plaintiff, and defendant appeals.</p>

— Hon. Obed Caswell, Judge. A Christian Church was organized in Tama, in 1884,. was incorporated in 1887, and acquired the church building in controversy. The defendants were enjoined from controlling the church, or from interfering with its use, by the trustees bringing the action and their associates, and appeal.

— HoN. O. P. Holmes, Judge. Proceedings in probate to establish a claim against the ■estate of Thomas Roche, deceased. The district court made a finding of facts, from which it appears that W. B. Crosby was appointed administrator of the estate of Thomas Roche, ■deceased, December 7,1891, and qualified, but gave no notice •of his appointment.

— HoN. G. P. Holmes, Judge. ActioN in equity to set aside special assessments made on account of curbing, and for other relief; There'was a hearing on the merits, and a decree for the plaintiffs. The defendants appeal.

<p>1 Fraudulent Conveyance: evidence. A conveyance of real and personal property made by the holder of the title to his father-in-law pending litigation with a third person, is not fraudulent where the sale had been long contemplated, an adequate consideration, (made up in part of an alleged debt due grantee from grantor said to have been evidenced by promissory notes held by grantee), was paid and the transfer was made in view of the intended removal from the state of the grantor who had never invested anything in the property and against whom it was not certain that a judgment would be recovered, and this, though grantee made sworn returns that he had no moneys and credits during the period he claims to have held said notes and though he subsequently aided grantee to avoid garnishment.</p> <p>Same. Where a conveyance from one relative to another is attacked by. the grantor’s creditors as fraudulent, fraud will not be imputed to them because of the relationship alone, but it or a state of facts from which it may be inferred, must be proved.</p>

<p>3 Seduction: juey question: Chastity. A finding in a trial for seduction • that the prosecuting witness was of previous chaste character is warranted although there was evidence that on several occasions she had conducted herself imprudently with others.</p> <p>4 Same. The evidence is sufficent to establish the use of seductive arts on the part of one charged with seduction where the testimony of the prosecuting witness in that respect is strongly corroborated by the defendant’s letters to her, though part of the arts used was a promise to marry if conception occurred.</p> <p>1 Indictment: seduction. An indictment charging the seduction of a certain ••unmarried person” of previously chaste character sufficiently avers that the prosecutrix was an unmarried woman. ></p> <p>a Requesting Instructions. An appellant who did not ask further instructions cannot complain that those given were not full and explicit; hence, one charged with seduction cannot complain that the court in his charge did not refer to evidence concerning the prosecutrix’s association with other men prior to the seduction, where the issue as to previous chaste character was fully submitted to the jury, and nothing further was asked.</p>

- — Hon. J. F. Clyde, Judge. Action at law to recover an amount alleged to be due on a promissory note. A jury was impaneled, and, after the evidence had been fully submitted, a verdict for the plaintiff was'returned by direction'of the court; and from the judg-men. rendered thereon the defendant appeals.

<p>1 Contracts:- certainiy. A contract which provides for the purchase of a specified aggregate number of sets of scales at a specified differing prices for different sets and that a certain number of sets shall be taken in stated years is not so uncertain that no action for breach may be bottomed thereon though it does not specify what number of each kind wa.s to be taken.</p> <p>1 Instructions: Measure of damages. At worst for: the seller, such contract gave the defendant the option of taking the scales on which the seller would make the least profit. Hence, an instruct-i on that the buyer had such an option and that presumably, he would have exercised it had he not broken his contract is not prejudicial to the buyer. The rule of the court assumed that the purchaser’s breach caused the least possible harm and it cannot avail him to urge that he might have so selected as to cause' greater injury by failure to buy.</p> <p>3 Constu otion. Under a contract for the purchase of certain manufactured articles, providing that such articles should be made “from the patterns’’ of a certain company manufacturing such goods, and that “no change from said patterns” should be made without the consent of the purchaser, manufacturer was not required to use the identical patterns which had been used by the company referred to, but only to furnish articles in which there was no change, as to the several parts thereof, from the finished product of such company made frqm such patterns.</p> <p>4 Same. A contract requ iring plaintiff to make certain articles for the defendant, according to certain specified patterns, was not broken where plaintiff changed such patterns, but did not use the changed patterns in making any goods for the defendant.</p> <p>5 Measuee of damages. ■ Where plaintiff was entitled to recover, in an action for damages for the breach of a contract for the purchase of a specified number of articles, of several different kinds, to be manufactured by plaintiff, and furnished, with “reasonable promptness,” on defenda nt’s orders, the measure of such damages for the articles not furnished was the difference between the contract price of the class thereof on which plaintiff would have received the smallest profit and the cost to plaintiff of manufacturing the number thereof which would have been required to fill such contract, making a reasonable deduction for the less amount of time required by plaintiff, its employes and factory, for the release from the trouble and responsibility incident to a full execution of such contract on plaintiff’s part. The ordinary rule, difference between contract price arid market value, should not govern because there was no agreement to have the scales ready for delivery at the beginning of the term fixed for delivery, but they were simply to be furnished up to the totals in given years as required by the purchaser.</p> <p>2 Evidence: Interpretation. Where defendant had contracted to purchase of plaintiff manufactured articles of certain specified kinds and the contract was not ambiguous, it was proper, in an action on such contract to reject evidence that plaintiff had manufactured and set aside for defendant articles of other kinds, not mentioned in such'contract.</p> <p>6 Harmless Error: objection below. Where portions of a letter offered in evidence were excluded on objection made, and there was nothing prejudicial in the part admitted, the reading of a part of the excluded portion, without further objection, was not sufficient ground for the granting of a new trial.</p> <p>7 N tew trial. Remarks of counsel of a nature not to be commended, but purporting to have been made in response to statements of opposing counsel, or to be deductions from facts disclosed by the record, did not require that the party complaining thereof should have a new trial.</p>

<p>1 Attaching Creditors: mortgages. Where an attaching creditor purchases a prior chattel mortgage, and has the same assigned to him, it is not payment of the mortgage, within Acts Twenty-first Genere! Assembly chapter 117, providing that attaching creditors may take possession of mortgaged chattels upon paying the mortgage debt.</p> <p>1 2 Same. An attaching creditor is not precluded from purchasing a prior mortgage lien upon the property attached and paying the mortgage debt, leaving to his attachment any surplus, by Acts Twenty-first General Assembly, chapter 117, providing that attachment creditors may take possession of mortgaged chattel property by paying or tendering the holder of the mortgage the amount of the mortgage debt, on the ground that such act extin- ‘ guished the debt, and the remedy left to the attaching creditor was to pursue the course prescribed by the act under the attachment, since the statute makes no provision for an assignment or purchase of a mortgage in such cases but merely for paying or tendering payment.</p> <p>4 Sale. The fact that attached property was sold in bulk instead of at retail and for much less than it was actually worth will not avoid the sale as illegal and fraudulent although more money might have been received for the goods by a retail sale of them, where it is doubtful if more money would have been realized by the creditors because of the additional expense of closing out the stock in such a manner.</p> <p>■3 Pleading: admissions. An averrment that defendant, to enable the sheriff to maintain his attachment, procured an assignment of a chattel mortgage on attached property, which said transfer and assignment were made under Acts Twenty-first General Assembly, chapter 117, was admitted by the answer. Held, not an admission that the mortgage debt was paid, but that it was assigned.</p>

<p>Appeal, from Pottawattamie District Court. — -Walter I. SMITH, Judge.</p> <p>Special proceedings to subject D. E. H. Grimmelman’s interest in a certain judgment rendered in liis favor, as administrator, against the Union Pacific Railway, to the payment of a judgment against said Grimmelman. The trial court granted the relief prayed, and Grimmelman appeals.</p>

—IIoN. W. B. QuartoN, Judge. ActioN at law, aided by attachment, on two promissory notes and an account. Defendant filed an answer and counterclaim. There was a trial to jury, verdict for.defendant on his counterclaim, and, from a judgment rendered thereon, plaintiff appeals.

— :Hon. W. B. Quar-ton, Judge. Action in equity to recover upon a promissory note, and to enforce by specific attachment a lien upon certain personal property pledged for its payment. Defendant answered, putting in issue -the fact of indebtedness, and by counterclaim asked damages on the attachment bond, and also sought to recover a large sum which he claimed to be due from plaintiff on account.

— HoN. Gr. W. Burnham:, Judge. ActioN in equity to cancel a certain mortgage on real •estate, and the promissory note secured thereby, executed by deceased to the defendant bank, and for an accounting by the defendants for all money received by .them on behalf ■of the deceased, and for judgment for the amount found due.

— How. T. E. SteveNSon, Judge. ActxoN at law on contracts in writing for the purchase of interests in real estate. A jury was impaneled, but when the evidence was fully submitted a verdict in favor of the plaintiff for the sum of four thousand nine hundred and seventy-eight dollars and twenty cents was returned by direction of the court, and judgment was rendered on the verdict. The defendant appeals.

— Hon. J. E. Clyde, Judge. The defendant was accused by information of the crime of unlawfully transporting intoxicating liquors within the state. There was a trial by jury, verdict and judgment of guilty, and defendant appeals.

— Hour. Ben MoOot, Judge. ActioN at law to recover of the defendant support for bastard children. There was a trial by jury, and a verdict and judgment against.the defendant, from which he appeals.

<p>Negligence: jury question: evidence. Whether an employe, loading ties on a oar by drawing them in with a pick, saw or ought to have seen a hole in the car floor, through which he stepped a few minutes after he entered the car, is for the jury, notwithstanding testimony that it was in plain sight; he having testified that, though he looked, he did nob see or know of it, and that there was snow and straw, over and around it.</p> <p>The fact of the wood about the hole in a car. floor, through which an employe of the railroad company stepped, being rotten, is sufficient to charge it with notice thereof.</p>

B.. Gaynor, Judge. Action in equity to establish a mechanic’s lien, and for judgment and decree foreclosing the same, under a contract for digging a well for the defendant D. Buckholz. issues were joined, and, on trial bad, judgment was entered dismissing plaintiffs’ petition, from which they appeal.