Volume 114 — Iowa Reports

<p>4 Trusts: injunction to restrain sale of trust property: Parties. An action to enjoin the sale of trust property under an execution may he brought by the trustee of the same without joining the beneficiaries.</p> <p>1 2 11 Trust deed for ohurcii purposes: Yalidity. Property was deeded in trust to the trustees of the Zion Church of the Evangelical Association of North America at a certain place, to be held for the ministry and members of such association, not for the members of the corporation itself, except as they may belong to such association. Held, that such trust was valid.</p> <p>Note — The figures on the left of the syllabi refer to corresponding figures placed on the margin of the case at the place where the point of the syllabus is decided.</p> <p>13 Sale of trust property: Purchaser affected with notice of powers of trustee. A party dealing with trustees of an expressed trust knowing them to be such, is bound, at his peril to know the extent of their powers.</p> <p>1 2 10 12 Sale of trust property mortgaged by trustee. Property was eonveyed to the trustees of the Zion Church of the Evangelical Association of North America at a certain place in trust to be maintained as a place of worship by the ministry and membership of such association, and as a place of residence of the preachers of such association who might be stationed at such place, with power to convey the same subject to the discipline and usages of that association, as declared by the general conference of such association and the annual conference within whose bounds the said premises were situated; the trustees to have the management of the property, subject to the provisions, of the discipline and the annual conference. Held, that such property could not be sold on execution issued on a judgment against the church in a proceeding foreclosing a mortgage on such property given by the local trustees.</p> <p>1 2 9 Adjudication: assignee of mortgage. A decree in a mortgage foroclosure suit adjudging that the trustee of the property mortgaged had no authority to encumber the same, and declaring the mortgage thereon void, which was not appealed from, is conclusive on the assignees of the mortgage, in a subsequent action to sell the property under an execution issued on a judgment for the mortgagee on the notes.</p> <p>7 Pleading: affirmative defenses: Counter relief. The pleading, of an affirmative defense is not sufficient to authorize counter relief, since in such case the facts must be specially pleaded.</p> <p>3 Review on Appeal: objection below: Defect of parties. An objection on the ground of defect of parties will not be considered for the first time an appeal.</p> <p>5 Same: Defective petition. Where a defect appears on the face of the petition, and no objection is,taken thereto on the trial, it will be deemed to have been waived, on appeal.</p> <p>6 Question not raised in pleadings: Trial de novo. A question not raised by the pleadings in the trial court will not be determined on appeal on a trial de novo.</p> <p>8 Defective pleading of appellant. A cause will not be reversed on appeal on the ground that appellant failed to file proper' pleadings in the trial court.</p>

— IIon. A. B. Tiiorxet.u, Judge. Action for judgment on a promissory note for $281.50, with 8 por cent, interest, executed by defendants to the plaintiff September 20, 1891, due March 15, 1898. Defendant answered, admitting the execution of said note, and pleading by way of set-off and counterclaim as will hereafter appear, asking judgment against the plaintiff for the excess of his claim over the amount of the note sued upon.

— Non. II. M. Rh.mij.í, Judge. The petition filed March 11, 1898, alleged that defendant undertook to put in plaintiff’s house a ivater-heating apparatus, at the agreed price of $390, with the guaranty that it have a capacity of heating all rooms in which radiators are placed to a specified temperature in the coldest-weather; that during the construction thereof $315 of the purchase price was paid; that upon completion, after numerous tests, it wholly failed to heat the…

— llox. W. F. Conrad, J udge. The plaintiff alleges in her petition, filed November 15, 1897, that her assignor insured in the defendant company against loss by fire on the sixteenth day of June, 1887; that on the seventeenth day of November, 1887, he suffered a loss covered by the policy, and that on the third day of January, 1888, he furnished the defendant with notice and proofs of .loss as provided in the policy; that on the tenth day of November, 1897, “she made a…

<p>1 Payment for Redemption: when not voluntary. F. sold land to defendant in 1891, and took a note and mortgage as security, which he assigned to M., and guarantied payment. M. obtained a judgment against defendant in 1885, and, on foreclosure of M.’s mortgage, N. filed a cross petition, and obtained a decree declaring his judgment lien to be superior to the mortgage. F. bought the land under the foreclosure in July, 1895, and it was afterwards sold to N., under an execution on his judgment. In September, 1896, F. paid to the clerk of the court, under protest, an amount sufficient to redeem the land from the sale to N. and afterwards the decree making- N.’s judgment a prior lien was reversed. Held, that F. was not entitled to recover the redemption money as an involuntary payment, since he could have protected his possession by a restraining order from the supreme court, and hence the payment was voluntary.</p> <p>5 On rehearing. Where a buyer under foreclosure pays a judgment for which the property is about to be sold on execution upon a judgment against a prior owner, which the buyer was under no obligation to satisfy, the payment is voluntary, because the sale might have been restrained by order of the supreme court.</p> <p>2 3 Same: Dissolving injunction — supersedeas. A decree was entered declaring that the lien of the judgment creditor was superior to the mortgage, and defendant, who had purchased the property at the execution sale, under the mortgage, and taken possession, obtained a temporary injunction restraining the judgment creditor from disturbing his possession until the appeal from the decree was determined. The temporary writ was dissolved, on motion, by the judgment creditor, and defendant then redeemed from the judgment lien. Held, that the contention that defendant, by filing a supersedeas bond and appealing from the order dissolving the temporary writ, could have kept it in force, and that therefore the redemption was voluntary, was without merit, since an order dissolving such a writ is self executing, and is not superseded by filing a bond.</p> <p>4 Hcstraining Order: pending appeai. Under Code, section '4109, conferring on the supreme court authority to issue all writs and processes necessary for the exercise and enforcement of its appellate jurisdiction, the supreme court has power to issue a restraining order to prevent one party to an appeal from disturbing the possession of the adverse party to the property in litigation, pending the appeal.</p>

— IIon. F. W. Eiciielberger, Judge. Action for partition. Defendants William E. Alston,, Mary M. Vote, and Henry 0.

— Hon. A. ,W. Wiekinson, Judge. Action in equity to require tlie defendant to credit $800 claimed to be due to tlie plaintiff on a policy of insurance against a loss by fire issued to him by the defendant on a bond and mortgage executed by the plaintiff, now owned by the defendant. The defendant answered, setting up certain defenses to plaintiff’s right to recover on the policy, and, by way of counterclaim asks judgment and foreclosure on said bond and mortgage.

<p>1 2 Slander per se: juey question: Galling a woman a “'bitch.'’' Whether calling a woman, a “bitch” imputes a want of chastity, so as to make the term actionable per se, is a question for the jury to determine, under all the circumstances attending the utterance.</p> <p>3 Evidence: Gross examination. In slander for words spoken during an angry altercation with plaintiff’s father, cross-examination of the plaintiff’s father, to show origin of the quarrel was-properly refused, as irrelevant.</p> <p>4 Plea and proof: Mitigating circumstances. Where no mitigating</p> <p>circumstances are pleaded, evidence that the words were spoken in anger was inadmissible, under Code, section 3593, providing that, in actions to recover damages for injuries to persons, character or property, no mitigating circumstances shall he proved, unless pleaded.</p>

— Hon. William Hutchinson, Judge. This action was brought against the defendant as the indorser of a promissory note in terms payable to him, which contained the following clause: “The makers, indorsers, and guarantors of this note agree to pay a collection fee of ten per cent, of the amount due, if not paid at maturity, 1 or if suit is brought hereon, but in no case shall said fee be less than ten dollars, and consent that a justice of the peace 'may have jurisdiction to…

— Hon. L. E. Fellows, Judge Defendants are physicians and surgeons practicing their profession as co-partners. This action is brought to recover damages for the negligent and unskillful treatment by them of the plaintiff’s wife, whose death, it is alleged, was caused thereby. At the close of plaintiff’s case the court sustained a motion to direct a verdict for defendants. Such a verdict was returned, and from the judgment rendered' thereon plaintiff appeals.

— IIon. A. H. Dewey, Judge. Plaintiffs are tbe owners of a tract of 80 acres of land (limited, however, by reservations to 73 acres), which was, in 1890, leased by them to defendants for the purpose of mining coal. Defendants have been using plaintiffs’ land not only to mine coal therefrom, but also for the purpose of running out coal from adjoining land, which they have leased for mining purposes.

Ayveal from Allamakee District Court. — Hon. W. A. Hoyt, Judge. The defendant owned and operated a wagon scale which was set in a public .street of Waukon. It was surrounded by a board rack, fastened with hinges at the corners.

— Hon. A. R. Dewey, Judge. The title to lots 19, 20, 21 and 22 in Burnside’s addition to the city of Oskaloosa stood in the name of plaintiff and his deceased wife, Parmelia Ritchie. The defendants are her only heirs. To a petition praying that title be quieted in plaintiff, they responded in a cross petition demanding not only partition of the lots, but also of certain notes and mortgages alleged to have been held jointly by plaintiff and the deceased.

<p>Wills: construction: Election by widow. Decedent’s will provided that defendant, his son, should have the use of all his property for the purpose of maintaining his mother during her natural life, and that after her death defendant should, out of the estate, pay a certain sum in annual installments to plaintiff, his sister, the will concluding with the provision- that “the remainder of all my property, consisting of real and personal estate, I give and bequeath unto my son,” the defendant. Held, such provisions were inconsistent with the widow’s dower rights, and, she having taken under the will, plaintiff can claim nothing as her heir.</p>

'Appeal from Lyon District Court. — Hon. William Hutchinson, Judge. Action at law to recover damages for defendant’s breach of a contract not to engage in the livery business at the town of Bock Bapids. Trial to a jury, verdict and judgment for plaintiff and defendant appeals.

— Hon. N. W. Macy, Judge. Action at law on a promissory note purporting to be signed by defendant and one Henry Wegener, her deceased husband. Defendant denied her signature under oath, and the issue thus presented was tried to a jury, resulting in a verdict and judgment for defendant. Plaintiff appeals.—

— Hon. J. F. Clyde., Judge. Action for partition. Tbe two plaintiffs claim that they and defendant V. S. Booth, as heirs of L. S. Booth, deceased, are the owners in common of certain described real estate, and ask partition thereof.

— Hon. W. S. With-row, Judge. The plaintiff’s right hand was so severely injured in a feed-grinding mill as to make amputation of the fingers necessary. The operation was performed by the defendant ana another physician called by him. Thereafter, for some five or six days, the case was treated by the defendant, when another physician was called by the plaintiff; and the defendant, refusing to consult or act with him, surrendered the case.

— Hon. H. M. Remley, T udge. Plaintiff, an attorney, secured a judgment for defendant against one Blachley, and filed an attorney’s lien thereon for his fees. This action was brought April. 27, -1898, in equity, to foreclose such lien. On May 3, 1898, defendant answered. January-3, 1899, defendant filed a bond releasing the lien, and then made a motion to transfer the cause to the law docket for trial by jury. The motion was overruled.

— Hon. James D. Gamble, Judge. Action to recover for injuries sustained by tbe plaintiff in consequence of the wagon in which he was driving being struck by one of the defendant’s passenger trains at the crossing of Third street and the defendant’s tracks in the city of Perry. At the conclusion of the testimony for the plaintiff the court sustained defendant’s motion for a verdict, and rendered judgment accordingly. Plaintiff appeals.

- — Hon. N. W. Macy, Judge. The plaintiff alleged: “That at or about one-half mile south of defendant’s depot at Panama, Iowa, and at a point where defendant’s line of railway crosses the public highway, the defendant’s freight train aforesaid struck this plaintiff, and threw him and his wagon and team many feet off and from said highway.crossing; that, at and before said time of striking this plaintiff and his team as aforesaid, defendant was negligently operating its said…

Avueal from Carroll District Court. — How. S. M. Elwood, Judge. Action to recover the balance of the purchase price of goods sold and delivered to defendant Hart, payment of which was guaranteed by the defendant Wetherill. At the conclusion of the trial the court directed a verdict for defendants, and plaintiff appeals.

— IIon. E. H. Helsell, Judge. Action in equity to restrain tbe sale of lots for taxes levied for tbe construction of a sewer. Trial and a decree for the-plaintiff. Tbe bank appeals.

— Hon. W. B. Green, Judge. Action to recover the possession or value of certain hogs and horses taken by defendant sheriff on execution issued upon a judgment against plaintiff’s husband. The intervenor joins plaintiff in mailing claim against defendant, resting her right upon a landlord’s lien under a lease of a farm to plaintiff upon which said stock was kept and used.

— FEon. A. R. Dewey, Judge. The appellant filed in the district court a notice to the mayor of Oskaloosa, presiding officer of the board of review of that city, advising him that said Frost appealed to the dictrict court “from the action of said board with reference to the complaint of said O'.

- — IIon. A. S. Blair,. Judge. This case was submitted upon an agreed statement off facts, substantially as follows: The■ plaintiff is a mutual benefit society on the assessment plan, with a head camp and local camps, one of which local camps, known as “No. 105,” was at McGregor, Iowa. W. E. Little held a certificate of membership in this organization, in which the -defendants Mate Little, his wife, and Jennie M. Little, his sister, were-named as the beneficiaries.

— IIon. S. M. Weaver, Judge. The northeast ¿ of northeast J of section 35, in township 87 north, of range 29 west, of fifth P. M. is claimed by plaintiff under act of congress approved May 15, 1856, known as the “Railroad Land Grant,” accepted by 1 the state, and transferred by it to the Dubuque & Pacific Railroad Company, and subsequently by it to the Dubuque & Sioux City Railroad Company.

- — Hon. W. F. Conrad, Judge. The plaintiff obtained a judgment by default against both defendants on the seventh day of January, 1899. On the thirtieth day of March, 1899, Mary A. Berns, the wife of Q. T. Berns, filed a motion to set aside the default as to her, on the ground that no notice of suit was ever served on her. The motion was sustained, and the judgment and default set aside as to this defendant. The plaintiff appeals.

''Appeal from Marshall District Oourt. — Hon. Obed Gas-well, Judge. Action of forcible entry and detainer. The trial court ■ordered that writ of removal issue against the railway company, and dismissed the action as to defendant Hfl.nniga.-n. Roth parties appeal; but, as the railway company first perfected its appeal, it will be called “appellant,”

'Appeal from Butler District Court. — Hon. C. H. Kelley, > Judge. Action upon a policy of fire insurance on a stock of goods, store fixtures, and furniture. A jury being waived there was a trial -to the court, and from a judgment in plaintiff’s favor defendant appeals.

.Appeal from Woodbury District Court. — IIon. 3?. R. Gay-nob, Judge. Action to recover for personal injuries sustained, as is ■ alleged, by reason of the negligence of the defendant, and without fault or negligence on the part of the plaintiff. Defendant answered, denying that it was negligent as charged, ■denying that plaintiff was damaged in the stun claimed, and •alleging that, whatever injury plaintiff received, he received through his own fault and negligence.

— IIon. E. E.. Ayleswortii, Judge. December 26, 1891, plaintiff commenced this action,, praying judgment against the defendants on three counts, as set forth in Exhibits A, B. and C. Exhibit A is for expenses paid by the city to replace Avenue A in the condition it was in previous to its occupancy by the defendants.

<p>Appeal from Clinton District Court. — Hon. A. J. House,' J udge.</p> <p>Action for damages. Judgment on a directed verdict ■against plaintiff, and be appeals.-</p>

— Hon. A. J. House, J udge. Action for specific performance of contract to convey real estate, and for damages for breach thereof. Defendants, who are husband and wife, deny the execution of the contract, and allege that the premises claimed by plaintiff constitute a part of defendants’ homestead, and that, if there was any contract by the wife to convey the same, it was void because not in writing and not executed by the husband jointly with the wife. Decree for defendants.

— ITon. O. Caswell, Judge. 'Action to recover damages for an injury resulting in the death of Charles A. Schaefer. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.

.Appeal from Muscatine District Court. — IIon. A. I. House, Judge. Action upon a policy of fire insurance. There was a trial to court, a jury being waived. From a judgment against plaintiff for costs, he appeals.

— Hon. Citarles A. ■ Bisiiop, Judge. Appeal from a judgment in certiorari proceedings brought in the district court to review the action of the defendant, as judge of the police court of the city of Des Moines, in entering three separate judgments for alleged contempts committed in the presence of that court.

'Appeal from Story District Court. — IIon. B. P. Birdsall, Judge.

— Hon. George W. Burnham, Judge. Action to recover damages caused by personal injuries to plaintiffs minor son, due, as is alleged, to the negligence of defendant’s employes. There was a trial to a jury, resulting in a verdict and judgment for defendant, and plaintiff appeals.

— Hon. S. II. Elwood, Judge. Action to recover damages for failure of defendants to pay off an indebtedness secured by mortgage on two parts of lots in accordance witb tbe stipulation in a deed conveying one of such, part lots from plaintiff to defendants. Trial before tlae court without a jury'. Judgments for defendants, from which plaintiff appeals.

— Hon. W..N. Treici-iler, Judge. Action to recover damages for personal injuries received on one of tlie defendant’s streets. Trial to jury, and. verdict and judgment for the plaintiff. The defendant appeals.

— Hon. T. R. Gaynor, Judge. Action for damages for fraud and deceit. The case was entitled and tried in equity, and judgment rendered in plaintiff’s favor for' the sum of $1,200, with interest. Defendant appeals.

— Hon. S. M. Weaver, Judge. Action to recover damage to growing crops. Trial to jury, and verdict and judgment for the plaintiff. The defendant appeals.

Appeal froTn Dubuque District Court. — Hon. Need O’Dont nell, Judge. This action in equity was begun by plaintiffs to enjoin a threatened trespass upon real estate. Defendants set up a claim of ownership of the tract in controversy, and by cross bill seek to quiet their title. Plaintiffs had a decree, and defendants appeal.

— ITon. John 0. Sherwin, Judge Mason City has been divided into sewer districts, through one of which (Willow Creek), by ordinance and resolution, the city council ordered the main artery of .the sewer system to be constructed, in length 9,605 feet, of which 1,250 was to be open, and the remainder closed.

<p>1 2 3 Tax Exemption: is privilege: Subsequent legislation. Acts Twenty-third General Assembly, p. 27, chapter 15, provides that in cities of over 10,000 population, whenever any real estate may, -by ordinance, be assessed with any special tax for street improvements, it shall be exempted, after payment, from any general road or street tax which might thereafter be assessed against it so long as the amount of such general tax would not exceed the amount of the special tax. Held, that the exemption conferred a privilege only on a person acting and paying assessments thereunder, granted as a matter of public policy, and not a contract right, which the legislature was precluded from impairing by subsequent legislation.</p> <p>4 Statutes. The exemption given by the statute was not preserved by Code 1897, section 51, declaring that the repeal of existing statutes “shall not affect any act done or any right accruing or which has accrued or been established,” since no contract or vested right, but a mere privilege, arose out of the prior statute and the latter act protected rights, and not privileges.</p>

— Hon. W. B. Quaeton, Judge. Action at law on a promissory note. Defendant deputes that she signed the instrument, and claims that what purports to be her signature thereto is a forgery. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

Hon. Robert Sloan, Judge. This is a proceeding by certiorari to review the action of said district court in adjudging the plaintiff guilty of contempt.

— Hon. IT. M. Remley, Judge. Action to quiet title to two certain lots in tbe city of Cedar Rapids in tbe plaintiff, George W. Wilson, trastee. The defendants answered jointly; tbe defendant Cory disclaiming any interest in tbe lots, and tbe defendant Sarah H. Martin claiming to be tbe owner thereof by conveyance from defendant Cory executed January 6, 1890. Decree was rendered in favor of the plaintiff. Defendants appeal.—

— Hon. Charles A. Bishop, Judge. This is an action in equity to foreclose a mortgage on real estate in the city of Des Moines. The issues presented by the answer will be stated in the opinion. There was a decree for plaintiff, and defendants Holliday Bros., W. K. Holliday and O. E. Holliday appeal.

— IIon. Charles A. Bisi-ioe, Judge. Action in equity to secure au accounting as to tbo amount due on a mortgage given by plaintiffs to defendant, and to effect redemption therefrom. There was an answer, and also a cross petition, in which the foreclosure of the mortgage was prayed. From a decree fixing the amount due on the mortgage, and foreclosing the same, plaintiffs appeal.

— Hon. S. F. Prouty, Judge. This is an action on a promissory note against O. H. White and II. A. Cady. Defendant White made default. Defendant Cady denied the execution of note. Verdict for plaintiff. Defendant Cady appeals.

— Hon. C. A. Bishop, Judge. Action iu equity to secure an accounting as to the amount due on a mortgage given to “defendant, and to effect redemption therefrom. By a cross-bill defendant sought to forclose its mortgage. From a decree fixing the amount-due and foreclosing the mortgage, plaintiffs appeal.

— IIon. A. J. House, Judge. Action to recover damages for maliciously suing out a landlord’s writ of attachment. Counterclaim for rent due. There was'a verdict and judgment for the plaintiffs. Defendants appeal.

— Hon. C. A. Bistiop, Judge. This is a contest over the probate of the will of W. B. Evans, deceased. Defendants, who are contestants, pleaded that the testator did not have sufficient mental capacity to execute the instrument, and on this issue, the case was tried to a'jury, resulting in a verdict finding thiat deceased was ■of unsound mind at the time the will was executed. Proponents appeal.

— How. S. M. Weaver, Judge. Action to recover under an insurance policy for dainag'e to plaintiff’s crops caused by a hail storm. Verdict for plaintiff. From judgment thereon, defendant appeals. — -

— Hon. Z. A. Church. Judge Action to recover commission for finding purchaser of defendants’ land. Trial to court, and judgment for plaintiffs. The defendants appeal.

— Hon. S. M. Weaver, Judge. Action to recover upon a certificate of insurance against disability. There was a jury trial, verdict and judgment against defendant, and it appeals.

— Hon. W. S. Withrow, Judge. Action at law to recover damages for the death of James E. Dalton, due, as is alleged, to the negligence of the defendant. The case was tried to a jury, resulting in a verdict and judgment for defendant, and plaintiff appeals.—

— Hon. Z. A. Churci-i, Judge. Plaintikf states as his cause of action, in substance, as follows: That on April 15, 1898, the defendant delivered to plaintiff his written order for .a harvesting machine; that, upon receipt of said order, plaintiff accepted the same, notified the defendant thereof, and in due time shipped the machine as in said order provided; that defendant fails and refuses to receive said machine, or to pay or settle therefor in accordance with said order,…

— Hon. Franklin C. Platt, Judge. This is a controversy over the avails of a certificate of membership in the Northwestern Masonic Aid Association, a corporation doing business in the state of Illinois, issued to J. L. Belknap, and payable originally to his devisees or heirs at law. Plaintiff seeks to recover the indemnity as legal representative of the deceased, and defendant claims title thereto as beneficiary, under a°substituted certificate, as a creditor of the member.

— Hon. C. P. Holmes, J udge. The defendants, W. D. Sims and George 0. Sims, are sited, as partners doing business under the firm name of the Sims Drug. Company, to recover damages for injury alleged to have resulted te plaintiff from the negligence of defendants in putting up a prescription of medicine to be used in plaintiff’s eye, the use of which resulted in injury to the eye and loss thereof.

— Hon. J. F. Clyde, Judge. Action in equity for tbe partition of certain lands. Plaintiffs ask to be allowed for taxes paid and improvements mailt on tbe land and for attorney’s fees. Defendants deny that tbe improvements were permanent, allege that recovery for taxes paid prior to 1893 is barred, and they ask to recover for rents and profits of their share of the land.

— Hon. N. W. Maoy, Judge. Action iu replevin. On April 7, 1898, Grantz & Gloe contracted witb plaintiff for 12 Moline wagons, 6 boxes, and 2 top boxes, at the agreed price of $706, to be paid for in 6, 8, and 10 months, and these were delivered at Walnut. Iowa, July 18th of the same year.

— Hon. F. W, Eichelberger, Judge. Plaintiee firm, being a creditor of Flanders Sisters, a co-partnership composed of N. M. and Ella Flanders, brought suit upon its claim, and sued out a writ of attachment, which was levied upon a stock of millinery goods in Ottumwa.

<p>Appeal from Polh District Court. — Hon. C. A. Bishop,Judge.</p> <p>Action for libel. Trial to a jury, directed verdict for defendants, and plaintiff appeals.</p>

— IIon. A. R. Dewey, Judge. The plaintiff, tlie owner and bolder of a-mortgage on-lands in the state of Kansas, executed by Harry Aylsworth, 'to secure an indebtedness of $600, brings this action against defendants, Zachary and Reid', subsequent grantees of said land, to charge them with the balance due on said mortgage debt, alleging that they separately agreed in the deeds to them to pay said debt. The defendant Zachary alone answered.

— Hon. S. P. Prouty, J udge. One Catherine Mally died testate on September 21, 1S98, seised of two tracts of land, — one of 80 acres, and’ the other of 22 6-100 aeres. The parties hereto are sons of said Catherine Mally, who in her will gave a legacy of $600 to ■plaintiff, and all of her real estate to defendant.

— IIon. TV. F. Conrad, Judge. Plaintiee, a corporation, brings this action against the defendant co-partnership and the members thereof, and, as cause of action, alleges, in substance, as follows: That these parties entered into a contract in writing on the 1 twenty-ninth day of October, 1897, as- follows: “This agreement-, entered into this day between J. P. Sheely & Co., of Des Moines, Iowa., party of the first part, and the Mt. Vernon Stone Co., of Mt. Vernon, Iowa, by…

— IIon. William; G-. Thompson, Judge. Action in replevin for certain cattle, under a chattel mortgage held by plaintiffs, which was duly recorded. There was a jury trial, and verdict awarding the property to defendant, fixing the value at $300, and damages at $33. Defendant electing to take a money judgment, it was accordingly rendered in his favor for the amounts stated. Plaintiffs appeal.

'Appeal from Linn District Court. — IIon. H. II. Remley, Judge. 'Action on three promissory notes, two of them executed to the Iowa Hedge & Wire Hence Company and transferred to plaintiff, the third executed directly to plaintiff. Defense of fraud and want of consideration. Verdict for defendant, and judgment thejeon, from which plaintiff appeals.

— Hon. Walter I. Smith, Judge. During the years 1893, 1894, 1895, and 1896, the defendant owned grain elevators.located at the towns of Portsmouth and Panama, in Shelby county. These elevators were situated on the defendant’s land contiguous to its railway tracks, and were leased to and operated by tenants, who paid nominal rent therefor, and bought grain for shipment over defendant’s road.

<p>1 Tax Title: who mat plead: Statute of limitations. Under Code, section 1448, providing that no action for recovery of real estate sold for taxes shall be brought after five years, a person who was not the owner of the land at the time of the tax sale but merely claims by subsequent adverse possession, is not entitled to plead the limitations of the statute against the purchaser at the tax sale.</p> <p>2 Adverse possession. Title cannot he acquired hy adverse possession, when such possession was under an arrangement recognizing a superior title.</p>

Gourt. — Hon. Thomas H Stevenson, Judge. E. S. Wishard, the appellant, was president, of the Des Moines Loan & Trust Company. The company owed Wishard certain sums of money, and he was also contingently liable for it on certain obligations signed by him. To secure him it turned over possession of certain real estate, from- which Wishard was to receive rents. These were to be disposed of in a manner which will be set out hereafter.

N. W. Maoy, Judge. The petition alleged that the defendant, as road supervisor, allowed a highway in his district to become and remain in a dangerous condition for travel; that he had oral as well as constructive notice thereof, but failed and neglected to repair the same and make it reasonably safe, though having at his disposal ample material and means for such purposes; that the particular negligence complained of consisted in permitting, in an approach to a bridge, a…

<p>Appeal from Shelby District Court. — Iíon. N. W. Macy, Judge.</p> <p>Cold, being indebted to the Irwin Bank, executed three-promissory notes, of $1,000 each, to J. T. Jack, president, January 10, 1896, payable, respectively, November 1, 1896, January 1, 1897, and March 1, 1897, and six days later gave a mortgage to Jack, individually, securing payment, 1 on the following described land: Southwest 4 and Southwest 4 Northwest 4 section 23, township 81, range 38, West -4 and South 4 Southeast 4 section 26, township 81, range 38, — subject to prior mortgages aggregating $8,700. On March 3, 1897, to further secure payment, and in consideration of extension of time, he executed another mortgage on the West 4 Northeast 4 section 36’ township 81, range 38, and the East *4 Southeast 4 section 31, township 81, range 37, subject to incumbrances of $1,300 on each place. The senior mortgage was foreclosed on North 4-Southwest 4 and Southwest 4 Northwest {- of section 23, also on Northwest 4 and Northwest 4 Southwest 4 of section 26, and on South 4 Southwest 4 of section 23, and at the sale the first two bid in by Jack, February 22, 1897, and the last by Bunneister, five days later, and the certificate of sale assigned to Jack, November 16, 1897. When the year of redemption had expired, plaintiff obtained sheriff’s deeds for all this’land. The senior mortgage on the West 4 Northeast 4 section 36 was also foreclosed, and at the sale, February 27, 1897, bid in by Jack; but Cold’s grantee deposited the amount of the bid, together with interest and costs, with the clerk of court, for the purpose of redemption. Two days later Jack filed an affidavit to the effect that he was the owner and1 holder of -the $3,000 mortgage mentioned, as well as of the certificate of sale, claimed the right to redeem from the latter, and offered to credit $1,000 on the mortgage debt,, and notified said grantee that he refused to accept the amount deposited. Subsequently this redemption was adjudged sufficient, and the certificate surrendered. It should also be-noted that Cold, having made arrangements with a party at. Council Bluffs to furnish the money with which to redeem,, applied to Jack for a statement of the amount required, and the latter furnished the figures, which included the- amount due on the $3,000 mortgage. This action, in which plaintiff' asks for the foreclosure of said $3,000 mortgages against- all the land covered thereby, save that on which sheriff’s deeds have been issued, was begun August 19,1897! Cold answered that plaintiff’s debt was canceled by operation of law; that is, Jack’s purchase at- the sales, and procuring the assignment from Burmeister, followed by sheriff’s deeds, constituted a. redemption under said mortgages, and extinguished the debt secured thereby. This view was taken by the district court,, and the petition was dismissed. The correctness of the decree as to the 80 acres redeemed by Cold’s grantee is not questioned. The plaintiff appeals.</p>

— Hon. H. M. Remley, Judge. Action at law to recover damages for an alleged libel written of and concerning tbe plaintiff, resulting in his discharge from employment by the Cedar Rapids & Marion City Railroad as conductor, and fox loss of time and injury to reputation and means of support. Defendant admitted the writing of the alleged libel, and averred that it was both justified and privileged. Verdict and judgment for $683.33 was rendered in favor of the plaintiff.

<p>Appeal from Polls Dislrict Gourb. — Hon. T. F. Stevenson, Judge.</p> <p>Action in equity in two counts for an accounting. Defendant answered, joining issue as to certain matters claimed by tbe plaintiff, and pleaded a counterclaim, on wbicb he claims a balance due to him. Plaintiff replied, admitting certain of the items claimed, and- denying that defendant is entitled to the other items claimed, or to any balance on an accounting. Decree was rendered in favor of the plaintiff. Defendant appeals.</p>

<p>Appeal from, Black Hawk District Court. — Hon. A. S. Blair, Judge.</p> <p>Action to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant, and without fault on the part of the plaintiff. Defendant denied generally. Verdict and judgment for plaintiff for $5,000. Defendant appeals.</p>

<p>Appeal from Keohuh Superior Gourt. — IIon. Nice H. Bell, Judge.</p> <p>Action for judgment on a promissory note. Defendant answered, averring that for reasons stated the court had no jurisdiction. The plaintiff demurred to the answer, on the ground that the matters stated constitute no -defense. The demurrer was sustained, and the defendant electing to stand on his answer, and refusing to further plead, judg•ment was rendered against liim, from which he appeals.—</p>

— Hon. J. F. Oliver, Judge. This appeal is by plaintiff from an order sustaining a motion to vacate a temporary injunction which had been granted on plaintiff’s petition, and which restrained defendant Babcock from selling certain personal property in a proceeding he had instituted for the foreclosure of a chattel mortgage executed by defendant B. De La Mater.

— IIon. Lot Thomas, Judge. We avail ourselves of the following from the statement of the case by appellant’s counsel, which is substantially correct, and sufficient for the purposes of the questions to be considered “The object of this suit is (1) to fore-1 ’ close a mortgage; (2) to subject property to the satisfaction of judgments.

<p>Appeal from Linn District Court. — IIon. William G. Thompson, Judge.</p> <p>Indictment for keeping a liquor 'nuisance. From a verdict and judgment of guilty, defendant appeals.</p>

<p>Appeal from Wapello Disrict Court. — IIon. M. A. Roberts, Judge.</p> <p>Action for the partition of real’ estate. Decree for defendant. ■ Plaintiff appeals.</p>

— Hon. W. S. With-row, Judge. Action in equity to enjoin the collection of a tax ■ levied in aid of a railway. From a decree dismissing petition at plaintiff’s costs, plaintiff and intervener appeal. — •

— Hon. A. H Thornell, Judge. Tiie defendant was indicted for the crime of murder, in that he did “wilfully, feloniously, deliberately, premeditately, and of his malice aforethought” kill and murder William Shultz. Hpon trial had he was found guilty of manslaughter, and judgment of imprisonment in the penitentiary for a term of six years was rendered against him, from which he appeals.

— Hon. H. M. Remley, Judge. The defendant was convicted of breaking and escaping from tbe penitentiary at Anamosa, and from judgment sentencing bim to serve a year therein be appeals.

— Hon. M. A. Roberts, Judge. This is an appeal from a judgment for plaintiff, as the result of a second trial in an action to recover damages for negligence of defendant’s employes in transmitting and delivering a message intended to secure the attendance of a veterinary surgeon to treat a valuable horse of plaintiff at an early stage of the disease which subsequently caused the death of .the horse, and when treatment, which might have been secured if the telegram, had been…

- — Hon. L. E. Fellows, Judge. The plaintiff’s elevator, situated on the depot grounds of the defendant, was burned September 27, 1898, and action was begun for its value, with that of its contents, August 29, 1899, based on the alleged negligent operation of defendant’s engine.

.Appeal from Lee District Gourt. — Hon. Henry Bank, Jr., Judge. The 'defendants were indicted, tried, and convicted of the crime of breaking and entering a store building, and judgment of imprisonment in the penitentiary rendered ..against them, from which judgment they appeal.

— Hon. W. P. Oonrad,. Judge. Defendant was indicted for the crime of an assault with intent to commit rape. At the close of the evidence for the state, the defendant filed a motion for a directed verdict, which was sustained, and the state appeals.

— Hon. P. B. Wolee, J udge. This proceeding was .originally instituted by the city of Davenport to condemn certain real estate belonging to defendants for a wharf and public landing. Commissioners were duly appointed, who appraised the damages, against the protest of the Diamond Jo Line Steamers, and the land was taken by the city. The steamer company appeals.

— I-Ion. W. S. Withrow, Judge. Action for a divorce and alimony, and for the custody of a minor child. Judgment denying a divorce, but awarding the plaintiff an allowance for the support of the child. The defendant appeals.

— ITon. A. TV. Wilkinson, Judge. This is an action between the widow and the heirs afi law of J. W. Pinckney, deceased, for the partition of certain real estate belonging to the estate of said Pinckney. The issues here arise upon the claim of Sarah A. Collie as a purchaser at execution sale of the interest of one of the heirs. The facts will be set out in the opinion. Prom an adverse ■decree, Sarah A. Collie appeals.

— Hon. James D. Smytiie, Judge. Action at law, aided by attachment. The intervener claimed the property attached under certain mortgages executed by defendant in the state of North Dakota. There was a trial to the court, resulting in a judgment finding intervener entitled to the possession of the property, and plaintiff appeals.

'Appeal from Wapello District Court. — Hon. T. M. Fee, Judge. Action in equity to rescind a contract on the ground of fraud, and for damages caused by a breach thereof. At the conclusion of the plaintiff’s testimony the court sustained the defendant’s motion to dismiss the petition, and judgment was ordered accordingly, from which the plaintiff appeals.—

— Hon. A. B. Thornell, Judge. A petition in equity was filed in-the district court asking permission to file and have heard a claim against an estate. The petition was granted, and a hearing ordered. The defendant appeals.

— Hon. P. B. Wolee, Judge. Action to recover $2,000 as belonging to the estate of John Collins, deceased. Intervention by Mary Sullivan, as next friend of Joseph Sullivan, claiming $1,000 of the fund for which the action is brought against defendant, and by P. O’Dowd, claiming in his own right and as trustee for others another portion of said fund. Defendant raised no issue with the intervenors, but claimed in his own right $120.

— IÍon. Henry Bank, Jr., Judge. On February 4, 1895, the First National Bank of Ft. Madison obtained judgment against plaintiff and Fannie Bullard for the sum of $555.50, with costs. About February 20, 1895, the defendant, with said Fannie, executed a stay bond.

— Hon. Frank W. Eiohelberger, Judge. Suits in equity to set aside and enjoin the collection of certain special assessments levied against the property of plaintiffs for the construction of a pavement on a street in the defendant city. Th.e trial court sustained a demurrer to the defendants’ answer, and defendants appeal.

— Hon. M. A. Roberts, Judge. Piaintiees, claiming that part of a certain established public highway across their land had been vacated and abandoned, inclosed the same, by a fence, with their land. The road supervisor, claiming that part of said highway had not been vacated nor abandoned, gave notice to the plaintiff to remove said fence, and, they failing to do so, he was about to remove the same, whereupon this action was brought to perpetually enjoin him from doing so.

— Hon. S. M. Weaver, Judge. Action to recover for a personal injury alleged to have been caused by tbe negligence of tbe defendant. Trial to a jury, and verdict and judgment for tbe defendant. Tbe plaintiff appeals.

(Appeal from Marion Distmci Court. — Hon. James D„ Gamrle, Judge. Notion in two cotints.

‘Appeal from Woodbury District Gourt. — Hon. George W. Wakeeield, Judge. Action at law to recover an overpayment, made by mistake, on a mortgage loan. Defendant puts in issue the fact of overpayment, and by counterclaim seeks to recover a sum returned to plaintiff on her claim. There was a verdict ad-judgment for plaintiff, and defendant appeals.

:'Appeal from Mahaska District Oourt. — How. A. It. Dewey,, Judge. Action iu equity in two counts. ■ In the first the plaintiff sets out a written contract with A. A. Hugg, whereby he was to erect for him in a workmanlike manner, and according to certain plans and specifications, a dwelling house for the consideration of $1,500.

<p>1 Husband and Wife: contracts between: Power of attorney. Code, section 3154, provides that when property is owned by husband or wife, the other shall have no interest therein which can be the subject of contract between them. Section 3161 provides that the husband or wife may constitute the other attorney in fact to dispose of his’or her property for. their mutual benefit. Section 2919 authorizes a married woman to convey or encumber real estate belonging to her. as if she was sole owner. Held, that a power of attorney given by a wife to her husband under a separation agreement, empowering him to sign for her conveyances of the real estate allotted to him by the agreement, was void under section 3154, and incapable of ratification, notwithstanding sections 2919 and 3161.</p> <p>2 Estoppel to claim distributive share: Property allotted to Tins-1band Toy contract. A wife separated from her husband under an agreement by wbicb tbe property is divided between them, is not estopped to claim, on the husband’s death, one-third of the real estate allotted to him by the agreement, and which he had conveyed, either by retaining the real estate allotted to her or by claiming and receiving her distributive share of his • personal estate, it not appearing that the husband’s grantee had changed his attitude by reason of the wife’s conduct.</p>

'Appeal from Louisa District Court. — Hon. James D~ Smyths, Judge. Defendant was charged, under the name of Norman McPherson, with murder in the first degree in the killing of' one John Pinley. He answered that his right name was Or-man McPherson, and pleaded not guilty. The jury returned a verdict of guilty in the first degree and fixed the punishment at imprisonment for life. Defendant appeals.

.Appeal from Hancock District Court. — Hon. John C. ShebwiNj Judge. Suit iu equity to enjoin defendant from crossing plaintiff’s right of way without providing an interlocking crossing at its own expense. From an interlocutory decree in favor of plaintiff, defendant appeals.

— Hon. M. A. Roberts, Judge. Action to recover double damages for stock killed by defendant’s train after said stock had gone upon the right of way through a defective gate at a private crossing. Judgment for plaintiff, from which defendant appeals.

Appeal' from Linn District Court. — Hour. W. N. Treiohler., Judge. Judgment was entered against defendant in justice court August 18, 1891, and a transcript filed with, the cleric of the district court the day following. Subsequently plaintiff became owner of this judgment, and on August 7, 1899,. caused execution to issue, which was returned nulla bona.

— Hon. G. W. Burn-ham, Judge. Action on a fire insurance policy. At the close of the evidence there was a directed verdict for the defendant, 'which Avas afterwards set aside and a new trial granted. The defendant appeals.

— Hon. A. J. House, Judge. Action for forcible detention of real property. Plaintiff alleges that by verbal contract he leased to defendants the land described, for a term of years, that he served notice upon them terminating said lease March 1, 1899, and that defendants hold over after the termination of said lease, and refuse to surrender possession; wherefore he asks judgment for posession.

<p>Appeal from Fayette District Court. — Hon. A. N. Hobson, Judge.</p>

— Hon. M. J. Wade, Judge. Plaintiee alleges that on the twelfth day of July, 1898, deceased loaned to defendant $2,400; that Peter Lenz was appointed administrator, and filed an inventory charging himself with $1,400 as money loaned to him. The defendant has never paid said $2,400, wherefore plaintiff asked judgment.

— Hon. A. W. Wilkinson, Ju.dge. The plaintiff leased certain premises to the firm of Johnston & Son for the term of one year. Johnston & Son afterwards mortgaged the stock of goods therein to the defendant Eobuek, who took possession of the stock under his mortgage, and of the premises, and continued such possession until the defendant Amos was appointed receiver of the stock, and put in possession thereof.

— Hon. J. D. Clyde, Judge. Deeendant was found guilty of the crime of larceny, and appeals from the judgment rendered on the verdict. — '

— IIon. John C. Sherwin, Judge. Defendant was indicted for the crime of murder. A trial to a jury resulted in a verdict of murder in the second degree. The defendant was sentenced to a term of 60 years, and from the judgment imposed appeals.

— Hon. S. M. Weaver, Judge. Plaintiff brings this action to recover damages for personal injury sustained while in the employ of the defendant as head brakeman on a freight train, and when engaged in uncoupling an engine and freight car, which injuries necessitated the amputation of his right leg about six inches below the knee.

— Hon. W. H. Tedeord, Judge. On application of plaintiff, the defendants were enjoined from opening a road. At hearing on the merits, the writ of injunction was dissolved, and plaintiff appeals.-—

— Hon. J. H. Apple-gate, Judge. Suit in equity to compel defendant to account for money and property coming into his hands as trustee. The trial court stated the account betiveen the parties. Both appeal. As plaintiff first gave notice, he will be called “appellant.’*

— Hon. W. IP. Conrad,. Judge. Action on contract. A demurrer to the petition was. sustained, and judgment rendered against the plaintiff. The-plaintiff appeals.-

'Appeal from Fremont District Courts — Hon. Walter I. Smith, Judge. Action to recover money paid under duress. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals.

'Appeal from Lyon District Court. — -Hon. Joi-in E. Oliver, Judge. The plaintiff’s decedent, in 1896, executed to defendant a note of $5,000, payable 10 years from date, and secured it by a mortgage on his farm. In 1899 he obtained a loan on the same land from another, and tendered of the proceeds thereof to the defendant sufficient in amount to satisfy its mortgage. The latter refused payment, and cancellation of such mortgage is sought in this suit.

- — Hon. A. N. Hob-son, Judge. Plaintiff states as her cause of action, in substance, as follows: That J. E. Duffy is administrator of the estate of Henry Y. Duffy, deceased, who died intestate April 27, 1897; that plaintiff was the lawful wife of said Henry Y. Duffy at the time of his death, and- is now his lawful 1 widow; that as the result of said marriage there was ¡born to them on the eleventh day of June, 1897, a daughter, Mary Elizabeth Duffy; that said child died on…

— TIon. M. J. Wade, Judge. Deeendant was accused of keeping his saloon open on election day, contrary to the provisions of an ordinance of plaintiff city. On appeal to the district court he was convicted, and appeals to this court.

<p>Appeal from Davis District Court. — How. E. W. Eichelberger, Judge.</p> <p>Action for divorce. Decree for plaintiff. Defendant appeals.</p>

— IIon. A. H. Dewey, Judge. Action by plaintiff, as treasurer of Jasper county, to recover for the use of said county against defendant, as executrix of the estate of one August Wendt, various sums of money alleged to be due as taxes on personal property omitted from assessment for the years 1895, 1896, and 1897. Defendant put in issue the right of plaintiff to maintain the action, and the truth of the allegations of fact in plaintiff’s petition.

District Court. — Hon. .H R. Gay-nob, Judge. Action to recover $212.40, alleged to have been paid by plaintiff “at the oral and implied request and foi* the benefit of said defendant.” Defendant answered, denying generally, and pleading certain matters as affirmative defenses. A jury was waived, the case tried to the court, and judgment rendered dismissing plaintiff’s petition, from which he appeals.

— Hon. F. R. Gay-nor, Judge. Action to recover the possession of 43 head of cattle under a chattel mortgage executed by one Jake Francisco. The case was tried to a jury, resulting in a verdict for the plaintiff, which the court set aside. Plaintiff appeals.—

— Hon: William G. ■ Thompson, Judge. Action to recover for a personal injury. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal.

— Hon. Fred O’Donnell, Judge. Action by an assignee of the firm of Levens & Dill'on to recover on account of wines and liquors sold one Martin Vorrey. Certain saloon fixtures owned by Vorrey were conveyed to Frank Farley, and by him (Farley) conveyed to defendant,- and plaintiff seeks to make the account a charge against these fixtures. From a decree and judgment for plaintiff, defendant appeals.

— Hon. Olieeord P. Smith, Judge. Action at law to recover of defendant the sum of $3,000 and interest. At the close of plaintiff’s evidence the court directed a verdict for defendant. Prom the judgment entered thereon against plaintiff for costs, he appeals.

— Hon. M. J. Wade, Judge. On January 10, 1893, the Mutual Life Insurance Company of New York issued a policy on the life of Jacob M. Mohr, stipulating for the payment of premiums for 20 full years, and that it might become payable after the lapse of that period though the insured were then living.

— Hon. William; Hutchinson, Judge. Action to recover $265 which plaintiff alleges he-loaned to defendant in August, 1898, on his verbal promise-to repay the same in a short time.

— Hon. George W. Wakekield, Judge. Action for personal injuries alleged to have been received by reason of a defective sidewalk. Judgment on verdict for defendant. Plaintiff appeals.

— Hon. L. E. Fellows, Judge. Action to set aside and annul the last will of George Hertrich, deceased. There was a trial to a jury, and a verdict and -judgment sustaining the will. The plaintiffs appeal.

— IIon. Obed Caswell, Judge. Defendants'’ demurrer to plaintiffs’ petition was sustained, and plaintiffs electing-to stand on their petition. judgment was rendered against them, from which they appeal.

Z. A. Church, Judge. Suit in equity to quiet title to certain real estate, and to restrain and enjoin defendants from enforcing a mortgage thereon. Decree for defendants, and plaintiffs appeal.

— How. G. W. Burn-ham, Judge. Action against defendant as sheriff, to recover possession of certain cattle alleged to belong to plaintiff, but seized by defendant under writ of execution against one William Murray. Defendant claims that notice of plaintiff’s ownership was not given him as required by law. The notice offered in evidence by plaintiff having been excluded on defendant’s objection, the court, on motion, directed the jury to return a verdict for defendant.

— Hon. W. S. Withrow, Judge. G. Ives & Son recovered judgment against Henry Strawhacker November 1, 1897, and on the first of March, 1898, the latter leased of Ballard 278 acres of land for one year.

— Hon. F. ]R. Gay-nor, Judge. ’Action of replevin to recover personal property consisting o'f certain wheat, oats, and corn raised on certain described land claimed by plaintiff to belong to her. De^ fendant took possession of the property as constable under execution against the property of IT. J. Coppock, the husband of plaintiff, and the question is whether the property belonged to the husband or wife. Judgment on verdict for defendant. Plaintiff appeals.

— Hon. A. B. Thor- ° NELL, Judge. Suit in equity to have a deed and contract for reconveyance declared a mortgage, for an accounting, and to redeem. The trial court denied the relief asked, and plaintiff appeals.

— Hon. O. Caswell, Judge. C. H. E. Boardman, as surviving partner of the law firm of Boardman & Boardman, and as executor of the estate of his deceased partner, brings this action to recover the reasonable value of services rendered by said firm as attorneys for defendants on an appeal to this court, and for money paid out.

— Hon. Z. A. Church, Judge. E. K. McCarthy was tbe postmaster at Jefferson, in this state, and tbe owner of certain furniture and fixtures used in connection with bis office. Plaintiff is bis successor, duly appointed, but at tbe time of tbe transactions in question bad not assumed tbe duties of tbe position. 1 McCarthy made a general assignment for tbe benefit of bis creditors to tbe defendant Haag.

— Hon. W. G-. Clements, Judge. Proceeding to establish a claim 'against an estate on a note. Judgment refusing to allow same because not filed in time. Plaintiff appeals.

— Hon. A. B. Thornell, Judge. Action at law upon a bond to recover for a breach thereof. There was a jury trial, resulting in a verdict and judgment for defendant. Plaintiffs appeal.

— Hon. Fred O’Donnell, ' Judge. Action to recover possession of part of lot 12 in block 1 in West Cascade, Dubuque county. Defendant denies tbe title of plaintiff, and in a cross-petition asserts title by adverse possession, and long-continued acquiescence by plaintiff and her grantors in the boundary line up to which defendant has occupied.

— Hon. E. H. Gay-nor, Judge. This is a personal action against tbe defendant to recover tbe tax levied upon a stock of merchandise at the time of the assignment and levy owned by him, but which he afterwards sold. There was a judgment for the plaintiff, and the defendant appeals.

— Hon. Henry Bank, Judge. Action iu equity to determine the interest of the plaintiff Eliza in the estate of her deceased husband, A. B. New-berry. Erom a part of the decree rendered, Eliza A. and Charles W. Newberry appeal, and from a part the defendant O. 0. Newberry, as executor and for himself individually, appeals. Eliza and Charles W. Newberry, having first perfected their appeal, will be designated as appellants.

— Hon. F. H. Helsell, Judge. This is a controversy over the right to tax attorney’s fees in favor of the landowner in a condemnation proceeding. The trial court refused to tax the fees because of uneonstitutionality of the statute authorizing the same, and the landowners appeal.

— Hon. F. H. Helsell, Judge. The proceeding in the lower court was an appeal from the action of the board of review of the town of Fonda in fixing an assessment for taxes against appellant for the year 1898. The lower court increased plaintiff’s assessment, and, plaintiff appeals.

— Hon. J. H. Whitaker, Judge. Action begun in July, 1899, on three judgments entered by a justice of the peace of Franklin county in 1882. The defense was a general denial and plea of the statute of limitations. ' Judgment was entered as prayed, and defendants appeal.

— ITon. B. P. Birdsald,. Judge. The petition, after reciting tbe ownership of certain land by plaintiff, charges that defendant Thompson wrongfully dug a ditch in the highway about one-half mile in length, which carried the water from the highway and from defendant Thompson’s land, which bordered said highway on the south at this place, and that the two defendants, acting together, then extended the ditch further, and caused it to cast the water therein upon the land of…

\ Appeal from Howard District Court. — Hon. A. N. Hobson, Judge. Action at law upon a policy of fire insurance. Judgment was rendered against defendant by default for the sum of $2,000, with interests and costs. From an adverse ruling on an application to set aside such default and judgment, defendant appeals.

<p>4 Administration: estoppel to deny validity of appointment of administrator: Sureties. In an action on an administrator’s bond, both the administrator and his sureties are estopped from denying the validity of his appointment.</p> <p>1 3 JS Jurisdiction — Collateral attack. Where a district court appointed a special administrator without any petition, and the order recited no jurisdictional facts, and the same man is subsequently appointed special administrator of the estate in another county, the question of jurisdiction of the court making the first appointment may be contested collaterally in an action on the bond given in the other county.</p> <p>■1 5 Same. Where a petition for the appointment of an administrator shows that the district court of another county is exercising jurisdiction over the estate, such petition does not give jurisdiction over the estate, though it recites that deceased was a resident of the county in which the petition was filed, and an order entertained on such petition may be collaterally attacked.</p> <p>7 Special administrators: Showing as to resilience. The same showing as to residence of the deceased is required for the appointment of a special as for the appointment of a general administrator.</p> <p>■5 Disapproval of report: Final unless appealed. Where there is no appeal from an order disapproving the report of a special administrator and requiring him to turn over the property to the general administrator, such order is final, and establishes the liability of the special administrator and the sureties on his bond, unless it be shown that the court had not jurisdiction.</p> <p>2 Review on Appeal: jurisdictions: Conflict in evidence as to. Where, in an action on an administrator’s bond, it is claimed that the court had no jurisdiction of the estate because deceased was a resident of another county, and there is a fair conflict of evidence on the point, the finding of the court as to the county of his residence is conclusive.</p>

— Hon. Robert Sloan, Judge. Plaintiff states as her cause of action, in substance, as follows: That on and prior to October 17, 1895, she 'was unmarried; that, on April 18, 1894, she gave birth to a son, of- whom Ed Wright, son of the defendant, was 1 the father. That about October 17, 1895, the plaintiff and said Ed Wright entered into a written contract to marry, by which said Wright acknowledged said child as his son.