Volume 113 — Iowa Reports

— Hon. L. E. Eel-lows, Juda’e. Action .in equity to enjoin the enforcement of a judgment against plaintiff. From an adverse decree, defendants appeal.

— IIon. II. 11. Towner, Judge. The appellant, Carrie E. Devoe, is the widow of A. B. Devoe, who died intestate February 26, 1898. The appellees are the children of A. B. Devoe by former marriages.

— Hon. W. H. Bed-ford, Judge. Action to recover damages for an alleged wrongful ejection of the plaintiff from one of the defendant’s passenger trains for the reason that the plaintiff, not having procured a passage ticket, refused to pay the 10 cents in addition to the usual fare demanded by the defendant’s conductor.

This is a certiorari proceeding brought to test the legality of an order discharging one George Conradi, and adjudging him not guilty of contempt in violating an injunction.

- — IIon. D. Byan,. Judge. Suit in equity for an accounting between the stockholders of a corporation, and to compel defendant stockholders to-pay for the stock subscribed for by them. The trial court found that plaintiff: was entitled to judgment, against the corporation for the sum of $500, with interest, and directed the officers thereof to apply certain money then in the treasury of the corporation to the satisfaction of the judgment.

— IIon. A. B.. Tiiornell, Judge. This is an action to test the validity of an ordinance-passed by the city of Council Bluffs on September 20, 1897,. amending an ordinance of the same city, passed in 1886, conferring upon defendant, as a corporation, the power to construct, operate, and maintain street railways in the city of Council Bluffs.

— Hon. J. H. Apple-gate, Judge. 1 2An ordinance'of the incorporated town of Guthrie Center fixed fire limits, and prfiohibited the establishment or erection of buildings or additions therein of wood or combustible materials, fixed a penalty for its violation, directed! the mayor or marshal to notify any one violating the ordinance to desist therefrom, and, upon failure to desist or remove, as notified, within two days, authorized either the mayor or marshal to enter the…

- — IIon. W. G. Thompson, J udge. The petition in tliis case is in three counts- The first claims damages for alienation of the affections of plaintiff’s-wife, tlie second is for the conversion of certain personal property, and the last makes another claim for damages on account of the seducing and debauching of plaintiff’s wife. The answer is in general denial, with a plea of the statute'of limitations against the matter set up in the first count of the-petition.

''Appeal from Buchanan District Court. — Hon. Franklliit C. Platt, Judge. Appeal from an assessment of plaintiff’s personal property for taxation for tKe'year 1898. The trial court reversed’ the action of the defendant board, which confirmed an assessment against plaintiff of the entire value of certain sheep purchased by him in October, 1897, and defendant appeals,.

- — -Hons. J. H. Apple-gate and J. D. Gamble, Judges.- The defendants, the Iowa Loan & Trust Company and J. A. and Nellie McLuen, demurred to plaintiffs’ petition, and the demurrer was sustained, whereupon the plaintiffs, with leave, filed an amended and substituted petition, which, on motion of said defendants, was stricken from the files.

.Appeal from Poweshiek District Court.- — -Hon. D. Ryan, , . . Judge. Action to quiet title to land. Plaintiffs are the widow ■(now remarried) and the children of one Lewis Hulse, now ■deceased, who was the son of defendant, and claim title to the premises in controversy under a conveyance made to said Lewis Hulse by defendant in exchange for the conveyance ■of another tract of land made to defendant by said Lewis Hulse.

— Hon. T. M.. Giberson, Judge. Action on a promissory note. The defendant’s demurrer to the petition was overruled. There was a trial, and a directed verdict for the plaintiff. From a judgment thereon, the defendant appeals.-

— Hon. George W. Wake- ■ eield, Judge. Action to recover upon a policy of fire insurance on a school building and furniture. The defense, so far as concerns the matters presented in this court, was that a condition of the policy was violated by the carrying of other insurance on said property without the consent of defendant.

— Hon. B. P. Birdsall, Judge. Action at law on a promissory note. The execution of the note is admitted, but the defendant Oonn pleads that he was a surety thereon, and that certain payments were made which were not credited.

— Hon. George W. Wakeeield, Judge. The defendant was indicted, tried, and convicted of the crime of forgery, and from the judgment of imprisonment and for costs lie appeals.

- — ITon. W. B. Quarton, Judge. Action by tlie administrator of S. I. Plumley, deceased, to recover for services rendered and materials fur-, nisbed in laying tbe wall for and plastering defendant’s bouse. Tbe answer put in issue tbe performance of tbe work as agreed, pleaded certain payments, a counterclaim for damages, and other items, and also alleged thep rior adjustment of all differences by arbitration. A demurrer to the plea averring arbitration was sustained.

- — Hon. P. B. Wolee, Judge. The plaintiff petitions for divorce on the ground of cruel and inhuman treatment endangering her life. The defendant answered, denying the charge of cruel and inhuman treatment, and by way of cross petition charges that the plaintiff committed adultery with James O. Smith, William P. ITart, and divers other men, and aslcs a divorce on that ground. Plaintiff replied, denying said charge of adultery.

— IIon. William G-. Thompson, Judge. ■ Action to recover damages for maintaining a nuisance, and to abate tbe same. There was a jury trial, and a verdict and judgment for the plaintiff.' The defendant appeals—

— ITon. M. J. Wade, Judge. This action was brought by the adminstrator of Lawrence Quinlan, deceased, to recover damages resulting from his death, which was due to injuries received while in the employ of defendant, and alleged to have been caused by the negligence of defendant’s employes in operating a train on which deceased was engaged in the discharge of his duties as brabeman.

— Hon. S. H. Weaver, Judge. Action at law to recover damages for personal injuries received by plaintiff while in defendant’s employ. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— IIon. C. P. Holmes, Judge. March 1, 1894, Thomas A. Mansfield made an assignment for the benefit of bis creditors to John Wyman, and tbe latter, by virtue of orders of court, continued tbe business and tbe manufacture of unfinished articles. March 31st an inventory was filed, and later tbe stock sold.

-. — IIon. L. E. Fellows, Judge. Defendant W. R. Smith conducted a place for the sale of intoxicating liquors under the mulct law. He gave the bond required by law, with his co-defendants as sureties thereon. This action was brought to recover the penalty provided by statute for' the sale of liquor to minors.

— Hon. C. P. Holmes, Judge. Plaintiffs are proponents of tbe last will and a codicil thereto, of Jeremiah J. Betts. Defendant filed objections to the probate of both will and codicil on two grounds: (1) That the testator was of unsound mind at the time both instruments were executed, to such an extent as deprived him of testamentary capacity; (2) undue influence. There was a jury trial, which resulted in a verdict in favor of contestant. Proponents appeal.

— Hon. T. F. Stevenson, Judge. Action to recover money collected as the plaintiff’s •agent. Counterclaim for unpaid commissions. Trial and judgment for the plaintiff. The defendant appeals.'

<p>■Joint Deed of Homestead: not required as to easement in homestead. Code, section 2974, provides that no conveyance or incumbrance of a homestead if the owner is married, is valid, unless the husband and wife join in tne execution of the same joint instrument of conveyance. A married woman made a written agreement with the owner of an adjoining building, .allowing him to use the doorway and stairs which led to the apartments of each, but which were located entirely on her' premises. Held, that the husband need not join in the agreement, to make it enforceable, since the right conveyed was an easement and did not pass title.</p>

— IIon. D. B. Hind-man, Judge. This action was commenced by Eliza Bell, now deceased ; and tbe present plaintiff, her husband, has been substituted in her stead. It is for personal injuries sustained by the original plaintiff, and the claim in her behalf is that such injuries were received by reason of a defective sidewalk. Her subsequent death is claimed to have been the result of the injuries so received.

— -IIon. James D. Smyth, Judge. Evans entered into á contract willi plaintiff, July 14, 1891, to construct a dwelling house for him, and on the same day executed a bond, with defendant as surety, conditioned “that, if the said Evan E. Evans shall duly perform said contract, then this obligation's to be void, but, if otherwise, the same to be and remain' in full force and virtue.” The house was built, and in 1892. Evans began an action against the plaintiff for a balance due.

<p>1 CancelIr.tion of Deeds: want of delivery: Ratification ty grantor. Evidence in an action by a grantor to cancel his deed, on this-ground that it was delivered without hisauthority, is insufficient to establsh plaintiff's claim, where the evidence shows that, she ratified the transaction.</p> <p>2 Tender oe consideration essential. A grantor who has not. tendered back the consideration before commencing an action, to cancel his deed, on the ground that it was delivered without, his authority, is not entitled to relief.</p>

<p>1 Judgments in rem: pleading. A petition -which, declared on a', note, alleged that defendants were non-residents, and asked a writ of attachment against their property, was sufficient to. entitle plaintiff’s to a judgment against the property.</p> <p>Jijp.isdiction to bender: Personal service outside of state. Personal service of a notice of a suit accepted hy defendants outside of the state more'than sixty days before default and judgment, gives the court jurisdiction to render judgment on attachment against defendant’s land.</p> <p>1 New Trial: personal service outside oe state. Code, section 3796, authorizing a new trial on application of a defendant served by publication only, within two years after rendition of judgment, does not apply where personal service instead of service-by publication, was made on non-residents.</p> <p>1 Form of Judgment: estoppel to complain of: Objections. Where defendants objected to a personal judgment because service-of notice was accepted outside of the state, and the judgment was so modified as to leave it in rem only, they could not complain of the court’s ruling, since the judgment was modified to-meet their objections.</p> <p>2 Attachments: discharge on motion: Must be had before trial. Under Code, section 4929, which authorizes the discharge' of attached property on motion . before trial for. insufficiency of' statement, etc., a levy and sale -thereunder could not- be set. aside and discharged, on motion, after final adjudication and order of special execution and sale of the property.</p>

— Hon. W. B. Quarton, Judge. Action to recover tile possession of specific personal property. The defendant Samson claims to hold the property as agent of two of his co-defendants, who are mortgagees thereof, holding’ chattel mortgages thereon executed by defendant Seiler, who, purchased fhe same from plaintiffs. ■ The defendants other than Samson and Seiler are the mortgagees referred to, and they- plead their mortgagers as prior to plaintiffs claim..

— Hon. C. H. Kelpy,. Judge. One Hiram A. Morey died in 1884, having executed a. will, the significant portions of which are as follows: “(1) I will and bequeath to my wife, Juliette Morey, all of my personal property, and the use of the north ninety acres of the southeast quarter of section thirty-four, and the south half of the northwest quarted of section thirty-five, all in township ninety-nine (99) north, of ranve fifteen west of the 5th principal meridian, so long as…

<p>Appeal from Harrison District Court. — -Hon. F. H. Gay-nor, Judge.</p> <p>Suit in equity to set aside a sheriff’s sale of real estate and to quiet plaintiff’s title thereto. Defendants deny plaintiff’s ownership of the property, and plead title derived through a sheriff’s sale- thereof as the property of one Kreiger. The trial court rendered decree for plaintiff, and defendants appeal.</p>

— Hon. W. N. Treich-» lee, Judge This is an action brought to recover damages for an alleged libel. Verdict for defendant, and judgment thereon* plaintiff appeals.

^Appeal from Boone District Court. — Hon. B. P. Birdsall, Judge.

— Hon. Obed Caswell, Judge. Action to recover double damages for cattle killed by a 'train on defendant’s railway because of the alleged failure to fenc,e at a point where the right to fence existed. A jury was waived, and trial had to the court. .From a judgment in de'.fendant’s favor, plaintiff appeals.

<p>Appeal from Pottawattamie District Court. — Hon. N. W. Macy, Judge.</p> <p>Action for damages because of a mistake made in a message received by plaintiffs. A jury was waived, and trial had to the court. From a judgment in plaintff’s favor, defendant appeals.</p>

— IIon. O. Caswelt,, Judge. Action at law to recover damages for failure to furnish cars as agreed. Defendant’s answer was a general denial. After a jury was impanelled, defendant filed a paper offering to allow judgment to go against it for the sum of $100 and costs up to the time of the offer. Plaintiff refused to accept, but proceeded to introduce the evidence of one witness.

<p>Representations of Insurance Agent: When there is no estoppel to deny. Where an insurance soliciting agent represented' to insured, who could not read English, that for an' additional consideration, which was paid, he could fix the policy so that a change in the use of the property from that mentioned would not forfeit the insurance, the company will not he estopped from pleading a provision contained in the policy, contrary to-the agent’s representations, since the agent acted outside of the scope of his employment, and estoppel only applies to. representations of present and past facts, and not to future contingencies, except where the abandonment of an existing-right is intended.</p>

— Hon. F. K. Gaynor, Judge. This action was commenced in 1891 to recover the ■value of certain jewelry contained in a jeweler’s sample -case, which was delivered by a traveling agent of plaintiff to the defendant to be transported as baggage. From a judgfor plaintiff upon a verdict, defendant.appealed to this court, .•and the judgment was reversed. See 92 Iowa, 364.

<p>Appeal from Path District Court. — Hon. C. A. Bishop, Judge.</p> <p>•This action in equity is to establish an alleged last will, and to quiet title in plaintiff to the property therein devised, or, in the event this relief is not given, to enforce an alleged contract to make a will in plaintiff’s favor, and quiet title in plaintiff to the property, included in said contract. There was a decree in plaintiff’s favor, and the defendants other than J. W. Geneser, administrator, appeal.</p>

— Hon. E. E. Aylesworti-i, Judge. Action at law to recover attorney’s fees, and a commission for the purchase of real estate. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— IIon. Thomas M. Giberson, Judge. The plaintiffs brought this action to recover rent due. A landlord’s writ of attachment was levied on the property in controversy, upon which the appellees had a mortgage for the purchase price, which they claim is superior to the lien of the landlord. On motion the case was transferred to the equity side of the calendar. There was a trial on the merits, and a judgment for the appellees. The plaintiffs •appeal.

•Appeal from Buchanan District Court. — Hon. P. C. Platt, Judge. Plaintiee held a policy of insurance in defendant company on certain buildings, together with personal property. He suffered a loos by fire and bdings this action to recover the amount thereof. After ■ plaintiff’s evidence was all in, defendant asked and was refused a verdict in its favor!

— IIon. E. E. Aylesworth, Judge. Suit in equity to cancel and set aside a mortgage. ■ Defendants filed an answer and a cross petition asking the foreclosure of the mortgage. There was a trial to the court, resulting in a decree dismissing plaintiffs petition and foreclosing the mortgage. Plaintiff appeals.

-Appeal from Hamilton District Oouri. — Hon. B. P. Birdsall, Judge. The plaintiff is owner of 2% lots in Webster City, abutting on Funk street 132 feet and on Division street 125 feet. During tbe summer of 1897 these streets were excavated to •a depth of from 2 to 3 feet along the lots, though no grade had been established, nor resolution adopted by the city ■council so ordering; and this is an action for damages occasioned .thereby.

— TIon. J. TL Apple-gate, Judge. Action to recover damages for personal injuries sustained while in the defendant’s employment, caused by certain alleged acts of negligence on the part of defendant, and without fault or negligence on the part of the plaintiff. The defendant answered, denying generally, and verdict and judgment for $7,085 were rendered in favor of the plaintiff. Defendant appeals.

— Hon. Walter I. Smith,. J ndge. Tiie two above entitled suits Avere brought to subject certain property to a judgment held by plaintiff against T.. L. Putman; the first to subject personal property, and the second real estate. The trial court granted part of the relief asked, and defendants appeal.

— IIon. S. M. Elwood, Judge. 1 Dependants are members of the school board of the independent district of Holstein. Plaintiff had a contract to teach in their school. Charges were preferred against her as a teacher by one member of the board. A time was fixed for the hearing of these cahrges, and plaintiff was notified thereof. She brings this action to enjoin defendants from proceeding with said trial.

<p>Appeal from Dubuque District Court. — Hon. ME. C. Matthews, Judge.</p> <p>Plaintiffs, A. W. Hosford, John Southwell, E. T. 'Goldthrope, and Anton Trieb, partners under the firm name Alpine Street Zinc Mining Company, bring this action against Matthew TV. Metcalf, J. TV. Waters, Frank Coals, Sr., H. L. Lundbeek, John Spensley, David Metcalf, and John Alexander, partners under the firm name Avenue Top Mining Company, to enjoin them from mining upon a tract of land known as the “Dillrance Ground.” The plaintiffs claim the exclusive right to mine on said land by virtue of written leases to them from the widow and heirs of J. W. Dillrance, deceased, to whom the same was bequeathed; and the defendants claim right by virtue of a grant in parol by said J. TV. Dillrance to their grantors. Decree was rendered dismissing the plaintiffs’ petition, and for costs, from which' they appeal.</p>

— Hon. George W. Wakefield,- Judge. The petition alleged tha on or about November 1, 1198, the plaintiff'and 18 others, whose claims -had been assigned to him,' were appointed and acted as special policemen during the day of the' general election, and he prayed judgment for the reasonable value of su'ch services. The city in its demurrer questioned its liability, on the ground that such services were chargeable to the county, and not to it.

— Hon. A. R. Dewey, Judge. On application to the lower court, relator was granted leave to bring an action in the name of the state to test his right to the office of county attorney, to which he claimed-to have been duly chosen at the general election on November 6, 1900, and to oust defendant therefrom, alléging that the defendant, who was the lawful incumbent of said office prior and up to the fii’st Monday (the 7th) of January, 1901, claimed the right to continue to hold…

^WELoN. T. F. Stevenson, Judge.. Action on an accident insurance policy, stipulating for tlie payment of an indemnity of $10,000 in event of death, and one-third thereof upon the loss of a hand or a foot. The plaintiff lost his left foot as a result of a gunshot wound received in the evening of February 18, 1897, Judgment was entered on a verdict for the defendant, and the plaintiff appeals.

<p>Appeal from Cedar District Court. — Hon. W. H. Treichler, Judge</p> <p>Action at law to recover the reasonable value of certain drain tile furnished defendant town at its instance and request. Trial to a jury, verdict and judgment for plaintiff, and the town appeals.</p>

— Hon. Walter I. Smith, Judge. 1 The facts to be considered on this appeal are as follows: In October, 1894, the plaintiff brought suit to .foreclose a mortgage on certain land of which Agnes Simanek was then ■owner, Frank J. Kaspar and wife being the mortgagees. Agnes Simanek was joined as party defendant.

— Hon. W. A. Spurrier, Judge. Action at law on two promissory notes executed by defendants to one J. A. Roe, and by Roe transferred and indorsed to plaintiff.

■Aippeal. from Dallas District Gourt. — IIon.- J; PI. Apple-a.C k : ■ • gate, Judge. Suit to annul a decree of divorce entered in an,action brought by Henry Lawrence, deceased, against plaintiff. The relief sought - was granted, and the .defendant appeals. — •

<p>Appeal from Harrison District Court. — Hon. William:' Hutchinson, Judge.</p> <p>Action in equity upon a note and mortgage. From a:, decree in plaintiff’s favor, defendants appeal.</p>

— I-Ion.' Robert Sloan, Judge. Action to recover tbe value of certain lands alleged to bave been deeded tbe defendant by reason of his fraud and misrepresentations. So far as material, tbe issues will be referred to in tbe body of tbe opinion. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

_Appeal from Cedar Rapids Superior Court. — IIon. T. M. Giberson, Judge. Action at law to recover damages for injuries received by plaintiff wliile passing along one of tlie streets of defend••ant city. Trial to a jury, verdict and judgment for plaintiff, .and defendant appeals.

— Hon. W. B. Quaeton, Judge. Action, founded on contract, to recover the value of certain shares of stock and wages earned. The defendants put in issue plaintiff’s right to recover, and ask that the contract be annulled, and that an accounting be had between them and plaintiff in the matter out of which the latter’s cause of action arose, and also pray judgment on certain items of charge against plaintiff.

<p>Attachment of Mortgage Clause to Void Policy: When no estoppel. Where an insurance policy is void because of vacancy of the premises, and the company, without knowledge of the fact and without consideration, attaches a mortgage clause to the policy at the instance of the mortgagee, also ignorant of the invalidity of the policy, and the mortgagee, because of the mortgage claim elects to take other insurance, the insurer is not estopped to set up the invalidity of the policy in an action thereon by the mortgagee.</p> <p>Note — The foregoing opinion was prepared by Granger, C. J., and after his retirement from the bench was adopted as the opinion of the court.</p>

— Hon. J. F. Clyde,, Judge. The first of these actions is brought to quiet title, and 'the second for an apportionment of dower. The trial court rendered a decree for plaintiff in the first action, and in the ■ second action dismissed the plaintiff’s petition. The defendant in the first action and the plaintiff in the second action appeal. The cases were tried together in the lower court, and will be so considered here.

John T. Scott, Judge. Action in equity for an accounting and for distribution of the assets of a partnership. Decree was rendered in favor of the plaintiffs. Defendants appeal.-

— Hon. W. N. Treichler,. Judge. This is a certiorari proceeding commenced in this court' to review the action of W. N. Treichler, one of the judges-of the Eighteenth judicial district, in affirming the conclusion of the board of supervisors of Cedar county with relation to certain statements of consent to the sale of intoxicating liquors in said county.

<p>■Appeal from Muscatine District Court. — Hon. A. J. House, Judge.</p> <p>1 Cypress street, in tbe defendant city, runs north and •south, with a slight angle opposite the south line of plaintiff’s land; and Woodland avenue extends to the west, its south line corresponding with that of plaintiff. Prior to 1893 the •surface water flowed in a ditch on the north side' of Woodland avenue to the corner, and then to the north along Cypress street about 250 feet, then across that street into plaintiff’s pasture. Surface water gathered in Cypress street to the south, bordering which were hills, flowed north, and was thrown on his land at the angle mentioned, through a box culvert and chute, prior to 1893. A deep gully or excavation had been washed out in front of plaintiff’s house, a part of which was in the street and part in his land. As we understand it, some of the water from the south flowed down through this gully on his premises, without going through the culvert, while most of it passed through that, washing out a deep hole at the end of the chute. During the three years following, Cypress street was brought to the established grade, the culvert to the north removed, and the water turned into a diagonal stone culvert constructed in place of the box culvert at the angle, but'with the east end 40 feet to the north; and water which formerly flowed down Eleventh street, running parallel with plaintiff’s line, 140 feet, to the south, was thrown on a triangular strip of ground lying along Cypress street, with base 30 feet wide at plaintiff’s line and tapering to a point on Eleventh street, and thence on plaintiff’s land. In 1895 he brought a portion of his premises up to grade, and the new filling was subsequently washed away. In this action recovery of damages occasioned by these changes is sought. A directed verdict was returned, and from a judgment rendered thereon against plaintiff he appeals.</p>

— Hon W. S. With-row, Judge. Action for breach of promise of marriage. Defendant denies generally and alleges special facts tending to show that he never agreed to marry the plaintiff. Verdict for plaintiff for $2,000. On defendant’s motion for a new trial the court remitted a portion 0f the verdict, and rendered judgment for $1,300. Defendant appeals.

— How. J. IT. Apple-gate, Judge. Action against a railway company to recover damages-. for stock killed on its right of way, where the company had a right to fence, and at a private crossing. Verdict and judgment for plaintiff. Defendant appeals.

<p>1 Rebuttal Evidence: self serving declarations. Where a defendant contends that another is the guilty party, that other should not be allowed, on rebuttal, to narrate a conversation, not had in the presence of defendants, which conversation amounts to-a declaration that narrator is innocent, though the person with whom the conversation was had testified thereto for the state, on his direct examination.</p> <p>2 Instructions: reasonable doubt. An instruction defining a “rcasonable ronbt” as one that the jury are able to give a reason for is erroneous.</p>

<p>■ Appeal from Jones Dislrici Court. — IIon. H. M. Kemley, Judge.</p> <p>1 Hpon the death of John Brown, in December, 1896, his wife, Mary, and son, Maurice, were appointed executors of his estate. In February, 1898, Maurice stated in his report as executor that deceased had deposited in the bank of L. Schoonover at the time of his death, evi- * denced by certificates of deposit, $1,600, of which he had no knowledge in filing the inventory, and asked that the same be distributed one-third to his mother, and the balance to him, as he had purchased his sister’s interest. To this the mother filed objections, supported by her affidavit that the ■ certificates were her individual property, but these were subsequently withdrawn, and the report approved. December 8 following, Maurice filed his final report, to which the widow filed exceptions, averring, in substance, that the certificates referred to belonged to hex, and ought not to be included in the settlement of the estate; that said Maurice never had but $1,000 thereof, and that was loaded to him by the mother to enable him to purchase his sister’s interest; that she neither signed nor was consulted about any of the reports filed; that she was induced to withdraw her objections to the former report by his promise to support and maintain her, which he had failed to carry out — all to mislead and cheat said widow. And she prays that the approval of the former report be set aside and the executor be required to account for said money. Later, Maurice filed a substituted report, setting out the agreement wihdrawing exceptions to the ■former report, and averring that the estate was settled as therein mentioned. The district court ordered the report set aside, and Maurice, as executor, to pay the widow, with other sums, the amount of the certificates. Erom this order he appeals.</p>

— ITon. W. S. Witiirow, Judge. Action to recover damages for the death of a horse, due, as is alleged, to its .becoming frightened at a steam roller negligently operated on one of defendant’s streets. The trial court sustained a demurrer to the petition, and plaintiff, appeals.

— Hois. J. R. Whitaker, Judge. Action in two counts, the first to recover $40 for a cow killed at a private road crossing on plaintiffs’ farm by one of the defendant’s trains, on the twenty-sixth day of October, 1898. The second count is to recover a balance of $28 on account of the killing of a steer. The contentions on this appeal relate entirely to the first count, and therefore the second will not be further noticed.

<p>Appeal from Iowa District Court. — Host. M. J; Wade, Judge.</p> <p>Dependant was indicted, tried, and convicted of tbe -crime of seduction, and from the judgment imposed appeals.</p>

— How. N. W. Maoy, Judge. Suit in equity to redeem from a tax sale, and to set ■aside a decree of court .quieting title to certain lands in. defendant Squire. Tbe trial court dismissed the plaintiff’s petition, and plaintiff appeals.

— Hon. George W.. Wakeeielb, Judge. Ti-ie defendant was convicted of the crime of seduction,, and appeals from the judgment thereon.

— How. S. F. Prouty, Judge. Dependant was indicted by tbe grand jury of Polk ■county for embezzlement, and in due course of time put upon trial. After tbe state had rested its case, and some, if not all, tbe evidence for tbe defense bad been introduced, tbe trial judge, on bis own motion, instructed tbe jury to return a verdict of not guilty, giving as a reason that, tbe offense being shown not to have been committed in Polk county, tbe court bad no jurisdiction.

- — Hon. Obed Caswell, Judge. Election contest over tbe office of county superintendent of schools. Erom judgment .declaring contestant elected, the incumbent appeals.

>Certiora>ri to Council Bluffs Superior Court. — Hon. E. E. Aylesworth, Judge. The petitioner was declared duly elected treasurer of 'the independent school district of the city of 'Council Bluffs, to succeed George S. Davis, who was a candidate against him. Davis refused to surrender the office, and was compelled to ■do so by mandamus proceedings. Afterwards he began an action in the superior court to test the right of the petitioner to the office in question.

— IIon. Horace M. Towner, Judge. Action at law to recover damages for personal injuries received by plaintiff while engaged in the construction of a bridge on defendant’s line of road. Verdict and judgment' for plaintiff, and defendant appeals.

<p>Appeal from Louisa District Gourt.-H.ON. W. S. AVititrow,. Judge. •</p> <p>Dependant was indicted, tried, and convicted of tile-crime of murder. Tbe jury fixed bis punishment at imprisonment for life, and from tbe verdict and judgment defendant appeals.</p>

<p>1 3'Vacation of Stipulated Judgment: casualty and misfortune. A judgment cannot be vacated, under Code, section 4091, preserib3 ing that a judgment may be vacated for unavoidable casualty and misfortune, where it was entered on a written stipulation and agreement of the parties.</p> <p>1 5Fraud in obtaining: What is not. Where a mortgagor signed a stipulation consenting to a judgment of foreclosure on a promise by the mortgagee to make an accounting thereafter, and to credit any amount to the mortgagors 5 which should have been credited, the judgment rendered on such stipulation will not be set aside for the-mortgagee’s failure to make the accounting, under Code, section 4091, providing that a judgment may be vacated for fraud in obtaining the same.</p> <p>1 2 4Duress: Pleading. The appointment of a receiver, by stipulation of the parties in foreclosure proceedings, will not be set aside-2 for duress cpnsisting of the mortgagee’s threats to criminally 4 prosecute one of the mortgagors, a son of the co-mortgagor, for selling the mortgaged chattels without the mortgagee’s consent where the complaint did not clearly allege that the other mortgagor, the father, had been influenced by such threats.</p> <p>6 Judgment of Foreclosure: evidence: Stipulation of consent. A written stipulation by a mortgagor, consenting to a rendering of a judgment of foreclosure, is sufficient evidence to warrant the rendering of such judgment.</p> <p>7 Ruling Without Hearing: harmless error. The striking from the-files of a motion to correct the rulings and vacate a judgment without a hearing thereof, though irregular, was not prejudicial error, where an order overruling such motion would have-been properly entered.</p>

<p>Appeal from Buena Vista District Court. — IIon. E. II. IIelsell, Judge.</p> <p>Action for judgment on three promissory notes executed by the defendant to the plaintiff for the deferred payments on real estate soldi by the plaintiff to the defendant under a written contract. Defendant answered, admitting the execution of the notes, and that they were unpaid, and alleging as defense an oral agreement with the plaintiff whereby defendant was released from liability on said notes. Plaintiff demurred to the answer on the ground that there was no consideration to support the alleged agreement. The demurrer was overruled, to which plaintiff excepts. Verdict and judgment were rendered in favor of defendant. Plaintiff appeals.</p>

<p>1 3 2Removal of Tax Delinquent: certification of tax to county of removal: Partnership moving and partners remaining. Code, section 1409, provides that, where a person owing delinquent taxes in any county moves to another county, leaving no prop-erty -out of which the taxes can he made, the treasurer of the county where the taxes are delinquent shall make out an absract thereof, and forward to the treasurer of the county where the delinquent has property, where it shall have the same ef3 feet as a levy of taxes in that county. Held, that the treasurer of a county where a partnership owes delinquent personal taxes has no authority to certify suqh taxes to the treasurer of the county where the partnership owns realty when all the partners continue to reside and own property in the county where the taxes are delinquent; and hence the holder of a mortgage on such partnership realty, which provides that the mortgagee may pay any delinquent taxes that have become a charge on the land, and that the whole debt shall then become due, and the 2 taxes made a lien on the land, is not entitled to pay -the delinquent personal taxes, and maintain foreclosure thereon.</p> <p>1 3Authority to certify: What certificate must recite. Where a county treasurer has certified delinquent taxes from one county to another, under Code, section 1409, authorizing such certification in case the delinquent has removed from the county where 3 the taxes were levied, leaving no property there, the failure of the certificate to show these facts is not a mere irregularity such as will not prevent the taxes from becoming a charge on delinquent’s land in the county to which they were certified, but is a fatal defect going to the authority of the treasurer to issue the certificate.</p>

<p>1 Action a Covenant of Warranty: reconveyance does not assign. Where plaintiffs cause of action accrued prior to an alleged deed reconveying the property to defendant, a charge in an action hy plaintiff for 'defendant’s breach of covenant that, if the jury should find that plaintiff reconveyed the property to defendant by warranty deed, such deed operated as an assignment of any cause of action plaintiff might have had against the defendant because of the failure of defendant’s title, was erroneous, since a reconveyance would not carry with it an assignment of an accrued cause of action.</p> <p>2 Operates as a release. Where plaintiff, after the accrual of his cause of action for breach of defendant’s covenant, reconveyed the property to defendant by warranty deed, plaintiff cannot maintain an action for defendant’s breach of covenant, since the covenants of the parties being mutual, cancelled each other, and henqe the reconveyance operated as a release of plaintiff’s claim.</p>

— IIon. Z. A. Churoit, Judge. Plaintiee, for cause of action, alleges, in substance, as follows: That on September 21, 1897, he recovered judgment against John H. Pritchard for $1,381 debt and $63.91 costs; that on the twenty-first day of January, 1898, an execution was issued thereon to the sheriff of Ida county, where John H. Pritchard resided, which was returned, “No property found”; that on the twenty-ninth day of January, 1897, after the indebtedness for which said…

— Hon. Ben McCoy*. Judge. Suit in equity to enjoin the obstruction of a private right of way claimed by plaintiff over defendlant’s land. The trial court granted the relief asked, and defendant appeals.

<p>2 Factors: sales on ckedit: Implied power to make. In the absence of instructions or usage to the contrary, a factor has implied power to sell the goods of his principal on a reasonable-credit, provided he exercise due care with respect to the responsibility of the purchaser and in collection of the price.</p> <p>3 Notice of sale to principal: Required only on sales to enforce factor's lien.. Where a sale by a factor is not made for the purpose of enforcing his lien for charges and advances, and no-subsequent instructions are received, the question of the-principal’s right to notice is not involved and should not be submitted to the jury.</p> <p>4 5Sale by principal: Subsequent sale to enforce factor’s lien.. Though a factor has a lien on his principal’s goods for charges-- and advancements, he has no right to sell them after learning that the principal has already sold them, unless such sale is 5 necessary for the enforcement of his lien.</p> <p>5 "Waiver of lien by wrongful sale: Effect on sale by principal. Where a factor hy wrongful sale of his principal’s goods waives his lien for advances and charges, one purchasing of the owner, before the sale by the factor, may recover the goods of the buyer without deduction of the amount of the advances, which in that event constitute but a naked debt of the principal.</p> <p>1 Plea and Charge: when pleading does not waive eight to corbeqt instructions. Acquiescence in the court’s erroneous view of the law, by amending the pleadings and introducing evidence to meet the opinion, is not a waiver of the error, precluding the party from insisting upon a correct statement of the law in the instructions.</p>

— IIon. S. B. Prouty, Judge. Action to quiet title to tbe south half of lot 4 in block 1 of White’s addition to Des- Moines. Decree was entered declaring each party entitled to an undivided one-half interest therein and directing partition. Defendant appeals.—

— IIon. George W. Wakeeield, Judge. Action ou relation of the attorney general, in which it is prayed a receiver be appointed to take charge of the property of the defendant company, and distribute the proceeds thereof to its creditors, and that it “be dissolved as a •corporation, its franchises forfeited, and that it be ousted therefrom.” The defendant resisted the appointment of a receiver on several grounds. After hearing, decree was entered as prayed.

— Hon. William: N. Treichler, Pudge. This action was brought to recover damages for per- - sonal injuries alleged to have been received by plaintiff by reason of a collision between the plaintiff while riding a bi- - cycle on the streets of Cedar Rapids and a street car operated .by the employes of the defendant, due to the negligence of defendant’s employes, without fault on the part of plaintiff. The amount sued for was $15,000.

<p>3 Tax Deed: description construed. A description in a tax deed, “the northwest twenty-eight acres of the southwest % of the northeast etc., is not sufficient to describe a tract comprising all such 40 acres excepting a square acre off the northeast corner and an irregular tract of 11 acres off the southeast corner.</p> <p>1 Appeal: striking additional abstract. The supreme court will not strike an abstract on the ground that it is not filed on time under the rules, in the absence of a showing of prejudice.</p> <p>2 Notice on Co-defendant: when not required. Where plaintiff dismissed his action as against one defendant, and the controversy on appeal can be determined without affecting the rights of such defendant, plaintiff cannot complain of the other defendant’s omission to serve such defendant with notice of appeal.</p>

— Hon. M. A. Rob1 erts, Judge. Appeal from an order selecting a paper published by plaintiff as an official paper in which to publish the proceedings of the board of supervisors and other matters, under section 441 of the Oode.

— IIon. D. Ryan_, Judge. 1 2This action was originally for a mandamus. Plaintiff claims to have purchased certain shares of stock in the Colfax Electric Light & Po-wer Company, previously held in pledge by the Citizens’ State Bank of Colfax, at an execution sale had under a judgment in favor of said bank and against W. P. Cain and W. hi. Bowles.

— Hon. J. R. Whitaker, Judge. Plaintiee sues to recover damages sustained by reason of false and fraudulent representations made by the defendants as to tbe quantity of land contained in a certain ranch in Texas, which ranch constituted the principal property of a stock company, the shares of which were transferred hy defendants to plaintiff in exchange for lands of plaintiff in Iowa.

Frank W. Eichelberger, Judge. This is an action to foreclose a mortgage given by the Toziers purporting to cover lot No. 10 in Hammond’s addition to Ottumwa, and for personal judgment against the Wilsons, who took a conveyance from the Toziers of the premises covered by the mortgage, assuming the payment thereof. Hammond also asks foreclosure of a second mortgage, purporting to cover the same premises, also assumed by the Wilsons.

R. Dewey, Judge. 1 Suit in equity to foreclose a mortgage executed by de^ fondant Thomas Gordon, and his wife, Georgia, to Mrs. C. M. Shaw. Mrs. Shaw transferred the note that the mortgage was made to secure and the mortgage itself to Lee Davis,, one of the defendants, and it is claimed that Davis sold and assigned the same to plaintiff. Defendant D'avis pleaded that plaintiff is not the owner of the note and mortgage, and that it is not the real party in interest.

— Hon. W. B. Quarton, Judge. Plaintiff appealed to the district court from the award of damages in a proceeding • to condemn for school purposes a part of a lot owned and used bv him in connection with another lot occupied as his residence. The district court increased the allowance of damages from $250'to $350, and the defendant appeals.—

— Hon. F. C. Platt, Judge. Action to recover the value of certain live stock sold and delivered by plaintiff and one Moag to defendant W. R. Bryan. There was a trial to a jury, resulting in a verdict and judgment for plaintiff against defendants Stewart, Moeler, and Porter, and they appeal.

Appeal fmm Gedar Rapids Superior Court. — Hon. T. M.. Giberson, Judge. 1 2Action to recover a balance due upon a promissory note-executed by the defendant to the plaintiff February 9, 1898. The defendant answered, admitting the execution of the note, and that, but for the matters set up as defense, the amount claimed would be due thereon.

— Hon. C. P. Holmes, Judge. Action upon a promissory note executed by tbe defendants January 25, 1897, for $550, payable, one month after -date, with 8 per cent, interest, to T. A. Harding, at the office of George G. Wright, Jr., Des Moines, Iowa, and in•dorsed as follows: “I hereby gmaranty the payment of the within n'ote at maturity, or any time thereafter to which it may be extended at the request of the maker or makers,-or -either of them, Waiving demand, notice, and…

— IIon. A. N. Hobson, Judge. 1 The defendant was charged by indictment with having, on the twenty-first day of August, 1896, while engaged in the banking business as president of the First National Bank of Decorah, at Decorah, Iowa, “unlawfully, willfully, knowingly, and feloniously permitted, connived at, encouraged, accepted, and received on and for deposit in said bank * * * a certain deposit, in lawful paper money, * * * of and in the sum of one hundred dollars, from one…

- — Hon. W. Gr. Thompson, Judge. The plaintiff, is the receiver of an insolvent Minnesota corporation, Avhich Avas organized and did business as a purely mutual association. On the twenty-fourth day of January, 1888, the defendant, A. D. Kline made Avritten application for membership in. said association, and at the same time subscribed for 12 shares of its stock. His application for membership Avas accepted, and a certificate for 12 shares of stock Avas issued to him.

-Appeal from Mahasha District Qourt. — Hon. John T. Scott, Judge.

— Hon. M. A. Eoberts, Judge. A four-ply belt, 7 inches wide and 47 feet long, owned and used by the Chicago, Burlington & Quincy Eailway in sawing wood near its roundhouse at Ottumwa, was stolen June 8, 1898, and the defendant Harrison was-detailed by said company to ascertain the guilty parties.

— IIon.. Oree. Caswell,., Judge. The defendants were jointly indicted, tried, and convicted of the crime of burglary, and judgment of imprisonment in the penitentiary rendered against each, of them,, from which judgment they appeal.

- — Hon. F. W. Eiohelbbrger, Judge. Action to enjoin defendant, wlio is a road supervisor, from opening to public travel a road which passes through plaintiff’s premises. The action ivas originally brought by plaintiff’s husband, who died, whereupon she, as his sole devisee, was substituted in his stead. From a decree dismissing the petition, plaintiff appeals.

-Appeal from Howard District Court. — FIon. A. N. Hobson, Judge. The petition alleged that defendant was owner of a Building situated on a described lot, in which he kept for sale and had sold, in violation of law, intoxicating liquors, and prayed for the abatement of the nuisance, and that defen•dant be enjoined from engaging in the sale of intoxicating liquors anywhere within the judicial district. The answer was a general denial.

— IIon. A. N. IIorson, Judge. Action in equity, under section 2405 of the Code, to abate and enjoin a liquor nuisance in a building described, owned by defendant William Connolly, and to enjoin the-defendants William and J. P. Connolly as in said section provided.The defendants answered, denying generally, and on the same day paid all the costs, including $25 attorney’s-fees allowed by the court to plaintiff’s attorney, and filed a bond as provided in section 2410 of the…

— IIon. A. R. Dewey, Judge. Appeal from au order of the district court dismissing plaintiff’s appeal from tbe action of the defendant in tbe matter of bis assessment.

— IIon. H. M. Towner, Judge. Action at law to recover for schooling furnished children residing in the defendant district. Trial to the court, and judgment for plaintiff. The defendant appeals.—

— Hon. J. R. Whitaker, Judge. Action at law on a policy of fire insurance. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

<p> Oertorari to Cedar District Court. </p> <p>On the fourteenth day of November, 1899, an injunction issued1 from the district court of Cedar county restraining L. S. and F. D. McCoukie from selling intoxicating liquors in violation of law, and restraining John Lower from leasing a certain building for the sale of intoxicating liquors therein. January 8, 1900, the restraining order as to Lower was modified by the judge in vacation, permitting the use of the premises for the sale of intoxicating liquors under the provisions of the mulct law. On the eleventh day of January, 1900, the said McConldes opened a saloon in the building in question, and commenced the sale of intoxicating liquors therein, and claimed that before so doing they had complied with the provisions of the mulct law then in force in Tipton and Cedar county, and were selling lawfully. On the fifth day of February, 1900, the plaintiff filed in the district court an information charging the McConldes and) Lower with a violation of the injunction and asking that they be punished therefor. Afterwards, upon a trial of the contempt proceedings before Judge Remley, the defendants, were discharged. This is a certiorari to determine the legality of the court’s action therein.</p>

— Non. T. M. Fee, Judge. Action to recover damages for personal injuries inflicted through the negligence of defendant. There was a jury trial, which resulted in a verdict in defendant’s favor. From a judgment- rendered thereon assessing the costs of the action to plaintiff, he appeals.

— IIon. -Thomas F. Stevenson, Judge Action in equity to abate a nuisance caused, as alleged, by the construction and maintenance of the tracks of defendant railway, and by the operation of trains thereon, and by permitting cars to stand upon its said tracks so as to obstruct access to plaintiff’s property. The trial court granted some slight relief to plaintiff, which is not complained of by defendants; but, in the main, judgment went against plaintiff, and he appeals.

— Hon. W. B. Quarton, Judge. Appeal from an order sustaining a motion dismissing an appeal from the decision of a justice of the peace.—

— Hon. A. R. Dewey, Judge. 1 The plaintiffs, Ella D. Ruby, J. E. Downs, and D. D. Downs, children, and William Downs, Edwin Downs, Mary Walker, and Bird Downs, grandchildren, of Louise J. Wharton, deceased, who died intestate, bring this action against O. M. Downs and LIulda Mooney, also-children of said deceased, for the partition of certain lands of which it is alleged said deceased died seised; and defendants answered, admitting all the allegations in the petition, except…

— Hon. Thomas B. Stevenson, Judge. Action at law to recover damages for an abuse of legal process alleged to have caused the death of plaintiff’s intestate. There was a trial to a jury, which resulted in a disagreement. Afterwards, upon suggestion of the trial court, a motion was filed by the defendant for a directed verdict, based upon the evidence submitted at the former trial. This motion was sustained, and judgment entered against the plaintiff. He appeals.

.Appeal from O'Brien District Oourt. — IIon. William Hutchinson, Judge. On au application of the executors of the will of William Harker, deceased, for approval of final report and for discharge, Dora B. Sayer, one of the beneficiaries under the will, filed objections, which on motion to strike were held insufficient, and the application for approval of report and final discharge was granted. Dora B. Sayer appeals.

— Hon. A. S. Blair,. Judge. 1 The appellant is the successor of the Chicago, St. Paul and Kansas City Kailway Company. In June, 1886, the city of Waterloo granted the last-named company the right of way over Bluff street, in said city, for the purpose of constructing and operating its line of railway therein.

— Hon. Henry Bank, Jr., Judge. By the terms of a written contract dated Fedruary 26, 898, the plaintiff agreed to furnish L. H. Fisher 500 half sacks of flour, at $4.90 per barrel, to be sold by the latter, as plaintiff’s agent, at not less than the price named, and he was to render an account 30 days after shipment, with remittance for’ all sold, and every 30 days thereafter. “And if any of said merchandise is unsold at the end of 90 days from the date hereof, he will buy…

— IIon. Henry Bank, Jr., Judge. The court sustained defendant’s demurrer to plaintiff’s petition and the amendments thereto, to which plaintiff excepted. Thereupon plaintiff,. with leave of court, filed an amended and substituted petition and an amendment thereto, which, on defendant’s motion, were stricken from the files, and, plaintiff electing to stand upon her pleadings, judgment was rendered against her, from which she appeals.

<p>2 'Articles of Incorporation: acknowledgement. Validity. Where a certificate of acknowledgment of articles of incorporation of a mutual fire company is preceded by the name of tne state and county and the signature of the officer is followed by words “Notary Public,” it is sufficient to render the incorporation valid, though the body of the certificate does not recite that the-officer is a notary public, or state the county in which he is-authorized to act.</p> <p>1 3Construction. Limiting Indebtedness. Articles of incorporation-of a mutual fire insurance company which recite the highest amount of indebtedness to which such company may subject. itself, except for insurance liability are not in violation of Code, 1873, section 1061, requiring articles of incorporation to- fix the highest amount of indebtedness which the corporation may contract, which must in no case, except in that of risks of' insurance companys, exceed two-thirds of its capital stock.</p> <p>4 Same. Exemption of Members From Liability. Articles of incorporation of a mutual fire insurance company which provide-that the private property of its members shall be exempt from corporate debts, except to the extent of their respective obligations on their subscriptions, is a sufficient exemption' of the-members of the company from personal liability to render the incorporation valid, though it provides that such exemption shall not apply to obligations of the association created by a written guaranty by certain stockholders, given as a temporary loan to the company and not as a protection thereof.</p> <p>6 Changing form of organization: Stockholders’ Liability. A mutual fire insurance company was organized under Code, title 9, chapter 1, exclusively for the purpose of insuring the property of its members; but a guaranty fund was created in the form' of shares which required a payment not to exceed ten per cent in any six months, and that the whole amount of said sub-seription should be void at the option of the shareholder after three years from the date thereof. Such guaranty fund was. not intended as any part of the working capital of the company, but was only a mere temporary advancement or loan. Held, that such fund did not change the character of the organization from that of a purely mutual company,, and, hence, the subscribers to such fund, were not liable to tbe company as stockholders owning unpaid subscriptions.</p> <p>8 Policy Void. A stock policy issued by a mutual fire insurance company in violation of Code, 1873, section 1159, which prohibits mutual companies from issuing such policy, is absolutely void and cannot be enforced.</p> <p>9 Officers Not Individually Liadle. Where officers of a mutual fire insurance company issue a stock policy in violation of Code, 1873, section 13 59, prohibiting mutual companies from issuing such policies, the officers are not individually liable thereon.</p> <p>10 Good Faith of Officers as a Defense. Where the officers of a mutual fire insurance company issue a stock policy in violation of Code 1873, section 1159, prohibiting a mutual company from issuing such policies, and action is brought against the officers to recover for loss thereunder, evidence is admissible to show that such officers advised with attorneys as to the liability on such policy, and followed the advice obtained, as evidence of good faith.</p> <p>7 Fraud. Personal Liability of Signers of Guaranty Agreement. Plaintiff’s evidence was to the effect that he insured in a mutual fire company, relying on statements made by an agent supplemented by circulars and cards issued at different times by the company, from which he presumed that there was a guaranty fund to protect the policies of the company. The circulars and cards, etc., were not introduced in evidence, and there was no evidence that any agent was authorized to make such statements nor that the officers or stockholders of the corporation knew that such statements had been made. The guaranty fund of the company was in the nature of a temporary loan for the benefit of the corporation and the nature thereof couid have been determined by an examination of the articles of incorporation on file in the office of the secretary of state and county recorder. Held, not sufficient evidence of fraud to authorize a recovery of an amount due on the policy from the persons signing the guaranty agreement.</p> <p>5 By-laws informally adopted: When valid. Where the articles of incorporation of a mutual fire insurance company provide that it may establisn by-laws, and by-laws are published and acted on during the existence of the company, such by-laws are valid though they were not formally adopted by the board of directors.</p>

This case is brought to this court by writ of certiorari to review the proceedings of the district court of Sioux county, Hutchinson, J\, presiding-, in which judgment was rendered against plaintiff in a proceeding wherein it is claimed the court had no jurisdiction of plaintiff. The facts wil] be found in the opinion.

— Hon. H. M. Towner, Judge. This is a proceeding for the allowance of a claim filed with the receiver by John Hall. The sole contention before us is whether an item of $413.75 for services rendered by said Hall to the defendant company should be allowed. As to other items of the claim and of defendant’s counterclaim there is no dispute.

— Hon. Obed Caswell, Judge. Plaintiffs sued out of tbe district court a writ of certiorari to test the validity of an ordinance passed by tbe city council of tbe city of Vinton whereby certain streets and alleys were vacated, and tbe land comprised therein granted to tbe Burlington, Oedar Rapids & Northern Railway Company for depot purposes. Tbe district court dismissed tbe petition at plaintiffs5 costs, and they appeal.

— Hon. H. M. Towner, J udge. Several creditors of G. W. Plowman in actions against bim caused writs of attachment to be levied on his stock of goods. J. E. Plowman intervened in each of these actions, claiming the attached property under a mortgage executed June 8, 1898. Answers thereto were filed, alleging the mortgage to be fraudulent.

— How. H. M. Remley, Judge. 1 ■.In this action plaintiff seeks to subject certain land now belonging to defendants, the Armstrongs, who are husband and wife, to the payment of a mortgage executed by him to one Jackson prior to the conveyance of the same premises by him to the Armstrongs subject to said mortgage. This conveyance was in pursuance of an arrangement for the exchange of lands.

— Hon. Z. A. Church, Judge. Suit in equity to set aside a deed and to recover the possession of real estate. Various interlocutory orders-were made that will be referred to in the body of the opinion. On the issues as finally settled the case was tried to the court, resulting in a decree dismissing plaintiff’s petition, and he appeals.

<p>1 Evidence: imperfect copy of insurance application: False representations of insured. Under a statute providing that a copy of the application must be made a part of an insurance policy, a copy containing only two of twelve or more items in the application is not sufficient to satisfy the statute, and hence a policy containing such copy is not admissible for the purpose of showing the falsity of statements made in the application.</p> <p>2 4Conditions of Policy: waiver by adjuster: Failure to keep books in a safe. Where a policy provided that it should be void if the assured failed to keep a set of books in a fire proof safe, the failure to do so was waived hy a statement of the adjuster that the assured would have to get duplicates for certain invoices in order to make required proof of loss, whereby assured was induced, at considerable expense and trouble, to procure such duplicate copies.</p> <p>3 Same: Waives production of books on trial. Where a policy provided that it should be void if assured failed to keep a certain set of books in a fire proof safe a waiver of such failure also operates to excuse the production of such books in an action on the policy.</p> <p>4 Stipulation against waiver. Where, as a preliminary to adjustment of loss under a policy, assured signed an agreement stipulating that nothing the adjuster might do, say, or write, should be construed, as waiving any defense of the company, as conditions or requirements of the policy, he was not thereby precluded from pleading a waiver by the adjuster of a clause in the policy, since the adjuster, having power to make such waiver could not deprive himself of that power by his own act.</p>

— Hon. S. M. Weaver, Judge. Action in equity to set aside a sheriff’s sale of real estate, and permit plaintiff to redeem from'the judgment under which the sale was made, if anything shall be found due thereon. There was a decree for plaintiff, and the defendant appeals.

— Hon. Eobert Sloan, Judge. Plaintiff was tripped and thrown by a loose board in ■defendant’s sidewalk, and brings this action to recover damages for the injury received. There was a trial to a jury, .and a verdict and judgment for the plaintiff. The defendant .appeals.

<p>1 Insurable Interest: tenancy at will is. A tenant at will being entitled under tbe statute to 30 days notice before he can be dis-possessed, bas therefor a term of definite, fixed possession, which is insurable. What recovery this interest will warrant is not decided, tbe amount of recovery being stipulated.</p> <p>2 Insurance by agent of owner for benefit of owner: Policy issued in name of agent. A party in possession of property under an agreement with tbe owner to pay tbe insurance thereon bas a right, as agent, to insure tbe property for the owner’s benefit; and if an insurance company, with knowledge of tbe fact, issues tbe policy in tbe name of such person in possession, it cannot escape liability on the ground that be bad no interest in the subject-matter.</p> <p>4 Covenant against change of title: Not broken by deed delivered after death of grantor. A deed not delivered until after tbe grantor’s death is invalid, and will not avoid a policy contain-ing a condition that it shall be void in case a change of title is effected without tbe knowledge or consent of tbe company.</p> <p>3 Misrepresentation of title: Held to be jury question. Plaintiff testified that his title to tbe insured property was fully stated to defendant’s agent, and that plaintiff did not learn that bis interest was incorrectly stated in tbe application until after tbe loss. Tbe agent testified that while be bad no independent recollection of tbe facts, be knew he got all his information from tbe insured, because there was no other source from which be could have obtained it. Held, that the conflict as to what information plaintiff gave the agent was for tbe jury, and tbe court erred in determining tbe issue in plaintiff’s favor by directing a verdict for him.</p>

— Hon. Walter I. Smith, Judge.. These cases were tried together below, aud are submitted here ou one record. Save that different tracts of land are involved, the facts are identical in the two actions, which are brought in equity to cancel certain conveyances of real estate, and quiet title thereof in plaintiffs. There was a decree for plaintiffs, aud defendants appeal.-

- — Hon. J. L. Husted,. Judge. These proceedings by plaintiffs are based upon claims against Barnard, Walker & Co., a corporation. The other-d'efendants were attached as garnishees. They made answers, which were controverted, and upon the hearing on-, the issues thus raised the garnishees were discharged. Plaintiffs appeal.

— IIon. N. W. Maoy, Judge. The defendant was indicted, tried, and convicted of tbe crime of seduction, and from tbe judgment of imprisonment rendered against bim be appeals.

'Appeal from Pollc District Gourt. — Hon, C. P. Holmes, Judge. Action for damages. Verdict and judgment for the plaintiff, and the defendant appeals.

<p>Appeal from Boone District Court. — Hon. S. M. Weaver,' Judge.</p> <p>Action oh certificate of insurance. Verdict and judgment against the defendant, and it appeals.-</p>

— N. W. Macy, Judge. Action to enjoin excavating in a certain strip of land alleged to be an alley. Decree as prayed, from which defendant appeals.-

— Hon. W. B. Quarton, Judge. Dependant was jointly indicted witb another for the crime of murder in the first degree. He was separately tried, on Ms own demand, and was convicted of tbe crime charged. From this judgment he appeals.

— Hon. J. D. Gamble, Judge. Dependant was indicted, tried, and convicted of the crime of obtaining a signature to a warranty deed by false pretenses, and appeals from the judgment pronounced against him.

<p>1 2Debt of Guaranty: note op mutual insurance company. A mutual fire insurance company created a guaranty fund as a temporary provision for funds authorized, by its charter. The fund was raised by borrowing and the lenders received interest-bearing certifi2 cates. These certificates entitled the holder to membership, while owned by him and were payable at the discretion of the company. In pursuance of a resolution that the company “guarantee the payment” due one holder, the company made him its note for the amount then due on his certificates. Held, though the1 resolution refers to a “guaranty” and witnesses speak of the note as being security, the note was neither, but was a new evidence of an existing debt, stipulating the time of payment.</p> <p>1 3Same: Acts ultra vires. The execution of such note was not ultra vires since the action of the company in creating the liability guaranty fund certificates was expressly authorized by its charter, and was not in violation of Code, 1873, title 9, chapter 4, regulating fire insurance companies.</p> <p>4 Attorney Fees: granted by judgment instead op as costs: ■Review on appeal. Code, section 3869, provides that, where judgment is recovered on a written instrument containing an agreement to pay an attorney’s fee, the court may allow certain percentages on the amount recovered, but that no such allowance shall be made unless an action has been begun. Held, that where the judgment, signed by the court, allowed attorney’s fees on amounts collected by plaintiff’s attorney, before suit was begun, and allowance would be corrected on appeal from the judgment, such application being required only when the erroneous attorney’s fee was inserted by the court in taxing costs.</p>

— Hon. A. B. Dewey, Judge. This action was originally brought by the Bank of Commerce. Afterwards the bank went into the hands of a receiver, and the court was asked that he be substituted as plaintiff. Whether the order was made or not does'not appear.

— IIon. John T. Scott, Judge. Plaintive, the owner of a lot in the city of Oskaloosa, upon which she resides, brings this action to recover damages for injury done her property by reason of the construction and maintenance of defendant’s railway along and across certain streets in said city. There was a directed verdict and from the judgment rendered thereon against plaintiff for costs she appeals.-

— Hon. John C. Sheewin, Judge. Action at law to recover damages by reason of tbe failure of W. R. Jamison, deceased, to convey or will to Samuel J amison, deceased, a tract of land, in consideration of Samuel’s promise to improve and use tbe premises as a borne for bimself and family. Plaintiffs are tbe widow and beirs at law of Samuel Jamison, deceased, wbo died before W. R. Jamison.

<p>1 Denial of Corporate Capacity: pleading. Code, section 3628, provides that, if an allegation that defendant is a corporation is controverted, the facts relied on must he specifically stated. Held, that where plaintiff alleged that defendant was a life insurance company, and duly incorporated as such, and defendant entered a general denial_ and averred the fraudulent procurement of plaintiff’s certificate, defendant must be considered an insurance company, and not a fraternal society, since no facts were specially pleaded to put plaintiff’s allegation in issue.</p> <p>2, Fraternal insurance: attaching copy of application essential. Under Acts Eighteenth General Assembly, Code 211, section requiring an application for insurance to be attached to the 12 policy, and precluding the company or association from proving the representations of the assured in case of failure to do so, a fraternal insurance company was not entitled to introduce in evidence an application not attached to the policy, since the statute applies to fraternal societies.</p> <p>4 Proving false representations: When Copy of Application is Not Attached to Policy. Where plaintiff’s application for life insurance was not admissible in evidence because it was not at-tached to the policy_ as required by Acts Eighteenth General Assembly, chapter 2Í1, section 2, and defendant admitted having no proof of any statements by the insured other than those in such application, evidence of a physician, tending to show that plaintiff was suffering from a disease which sfibsequently resulted in death, was properly excluded, since there were no representations in evidence to be proven false.</p> <p>3 Stare Decisis: legislative construction. Cannot be given weighs against a ruling by the supreme court.</p>

A.ppeal from Winnebago District Court. — Hon. C. H. Keleey, Judge. Action at law on a policy of fire insurance. Directed verdict for defendant, and plaintiff appeals.

— Hon. William. G. Thompson, Judge. Action to recover tbe purchase price of land and establish a vendor’s lien thereon. From a decree as prayed, the defendant Higgins appeals. —

<p>'Appeal from Polk District Oourt.- — Hon. W. E. Conrad, Judge.</p> <p>Action on a promissory note executed by Phillips, as principal, and the defendant, as surety, January 25, 1896, payable “on or before one year after date.” Defense: Extension of time one year by the maker without the surety’s consent. Verdict was directed and judgment entered thereon against the defendant, who appeals.</p>

— Hon. B. P. Birdsall, Judge. The defendant, by written contract, purchased a stock of drugs and certain fixtures of plaintiff December 30, 1898, and refused to carry out its terms, and this is an action for the resulting damages. Verdict and judgment for the plaintiff, and the defendant appeals.-

— Hon. Walter I. Smith, Judge. Plaintiee filed a claim against the estate of H. H. Persons, deceased, in the sum of $703.35. The administratrix entered a denial, and set up a counterclaim in favor of the estate in the sum of $1,109.70. The cause was tried to a jury, which under the direction of the court, returned a verdict in favor of plaintiff for the sum of $515.69. Prom a judgment allowing the claim in that amount, plaintiff appeals.

— Hon. William Hutchinson, Judge. This is a proceeding in probate on exceptions by tbe wards to the report of their guardian. The interveners, bondsmen for the guardian, intervened, and for i*easons alleged asked that an accounting be had, that the reports of the guardian be approved, the guardian discharged, and her bondsmen released.