Volume 116 — Iowa Reports

— Hon. Henry Bank, Judge. Petition in equity to establish a judgment lien on certain funds in the hands of the clerk of the district court of Lee county. Defendant Bingen Stove Company filed a general equitable demurrer to -the petition, which was overruled, and,‘electing to stand on the demurrer, the court ordered the clerk to pay plaintiff the amount claimed. The stove bompany appeals. —

— Hon. J. B. Whitaker, Judge. A petition was prepared,, and tbe clerk directed to file it, in eacb of five entitled cases, eacb based on a distinct judgment. The party in whose favor each judgment had been rendered was named as plaintiff, and those against whom, and some others, as defendants, in each case. ■ Answers and replies were filed. Whether there was in fact one set of papers treated as five, or five distinct sets of papers does not appear.

<p>Appeal from Linn District Court. — Hon. Wm. G. Thompson, Judge.</p> <p>Action to recover damagtes to plaintiff’s premises by reason, of negligence of defendant in allowing the gas to escape from its pipes laid so near to and under the-soil of said premises, whereby such soil -was saturated with gas so that the grass and' trees upon and in front of said premises were killed. Verdict for plaintiff, which the court-refused, on motion, to set aside as inadequate in amount. From judgment on the verdict, plaintiff appeals. —</p>

— Hon. H. M. Kemley, Judge. Plaintiff filed a claim against tbe estate of M. H. Hutton, deceased, for work and labor performed at tbe instance and request of said Hutton, and, in a second count, for damages growing out of tbe deceased’s failure to comply with a contract, whereby be (tbe deceased) agreed upon a sufficient consideration to deed plaintiff a farm in Jones county, Iowa.

— Hon. Walter I. Smith, Judge. On June 24,1891, C. B. Judd executed to tbe KimballChamp Investment Company his note for $650. This was tbe balance due on a previous indebtedness, for which it was given in renewal, secured by a mortgage on lot 6 in block 3, and lots 2 and 8 in block 5, in an addition to Council Bluffs known as tbe “Twin City Place.” Thereafter tbe note and mortgage were acquired by tbe plaintiff.

■'Appeal from Emmet District Court. — Hon. W. B. Quakton, Judge. These two appeals are iu the same case, which was a coudemuatiou proceeding instituted on the part of defendant company to obtain a right of way over land belonging to plaintiff Lough, upon which Mitch H, his co-plaintiff, held a mortgage. A jury trial was had, and a verdict returned awarding the sum of $850 as damages. From the judgment entered on this verdict, plaintiff’s appeal.

— Hon. IT. M. Rbmley, Judge. Action on policy of insurance. The defense was based on the ground that the policy was not in force at the time of the loss. Verdict for plaintiff. From judgment thereon defendant appeals. —

'Appeal from Emmet District Court. — Hon. W. P. Quarton, Judge. Action to recover an amount of money paid by plaintiff upon purchase of a parcel of real estate sold by the county treasurer for non-payment of a “mulct tax,” which sale has since been adjudged void. By agreement of the parties the cause Avas tried as one of equitable jurisdiction. There Avas a decree for plaintiff, and defendant appeals.—

— LIon. Walter I. Smith, Judge. The district court having sustained a demurrer to tbeir petition filed under the occupying claimant’s act, the der fendants appeal. —

— Hon. A. K. Dewey, Judge. Action for divorce on the ground of adultery. Defendant, by cross action, seeks divorce on the ground of cruel and inhuman treatment. The lower court dismissed both actions on the merits. Each party appeals, and plaintiff wilí be treated as appellant. —

— Hon.' O. P. Holmes, Judge. Action for the agreed price of work and labor performed at defendant’s instance and request Defendant denies the alleged contract, admits certain payments referred to-by plaintiff, and says that plaintiff has been paid in full for all labor performed. The case was tried to- a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. —

- — Hon. B. P. Birdsall, Judge. Action to quiet title. The cross petition demanded the same relief. Decree was entered quieting title in plaintiff, and defendants appeal. —

— Hon. T. M. Giberson, Judge. Action at law to recover damages to plaintiff’s farm, due, as is alleged, to defendant’s emptying its sewage into a running stream wbicb passes through, the land. There- was a trial to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. —

— Hon. Gf. W. Burn-ham, Judge. This is an action in equity, brought by the widow of one Aaron Pryne to partition certain real estate belonging to the estate of her said husband. The various heirs at law are made defendants, and their respective interests are set out in the petition.

<p>Appeal from Olinlon District Gourt. — Iíon. James W. Bobbin ger, Judge.</p> <p>Judgment for damages, from which defendant appeals.</p>

— Hon. W. F. Conrad, Judge. Action to recover the value of a team of horses alleged to have been sold by plaintiff to defendant. Judgment on verdict for plaintiff, from which defendant appeals. —

— Hon. Geo. W. Wakeeield, Judge. Quo warranto proceedings to test the validity of the appointment of defendants as a board of waterworks trustees, and of defendant Spaulding as superintendent of the waterworks system of the city of Sioux City, and to test the constitutionality of certain acts of the legislature authorizing the appointment of such officials by the. district court of the county.

— Hon. S. F. Prouty, Judge. Suit iu equity to forclose a mortgage, aud to enjoin defendant from prosecuting an action in justice’s court, wherein he .was seeking to recover a pénalty froni plaintiff for failure to satisfy of record the mprtgage sued on. A temporary writ of injunction was issued on the filing of the petition, which defendant moved to dissolve. This motion was overruled, and defendant appeals. —

<p>1 Renewal of Notes: consideration. Defendant and his son were officers in a hank and owned a controlling interest in a second corporation, of which the son was treasurer. The latter corpor-</p> <p>ation from time to time borrowed money from the bank, which afterwards suspended business. Later the bank examiner called attention to the fact that the corporation’s notes held by the bank were not properly secured, and defendant and his son, with others,' thereupon indorsed them. Afterwards these notes were taken up and cancelled, a new note and mortgage signed by defendant being given in their place. Held, that, though defendant’s indorsement of the original notes was without consideration, the new note and mortgage was based on a good consideration in the surrender and cancellation of the old notes.</p> <p>2 Mistake. The fact that defendant did not know that his indorsement was without consideration and that he was not liable on the old notes did not invalidate the new note, where it did not appear that the bank officials knew that he was executing the new note because bf a mistaken belief as to his liability, or that they themselves were mistaken with respect thereto; the mistake not being mutual.</p> <p>3 Same. The bank’s attorney, when the new note was executed, told defendant and others that they had all indorsed the old notes, and were jointly liable, etc. There was no evidence that he knew the circumstances under which the old notes were executed, or that defendant relied on his representations as to liability, or that the bank officials knew that defendant was mistaken with respect thereto. The attorney also stated that defendant could enforce contribution from another indorser who refused to sign the new note. Held, not to show that defendant’s mistake was induced by inequitable conduct on the part of the bank or its attorney, and hence the new note was good.</p>

<p>Guarranty of Interest: corstruction. A third person agreed to. procui e a loan, for .a corporation “for five years, at 7 per cent, semi-annual interest, * * * both principal and interest to. be payable in N., and with the usual conditions in the event of non-payment.” Afterwards, but prior to the completion of the loan and to facilitate its procurement, a supplementary agreement w-as made whereby defendants, among others guarantied “the payment of the interest and taxes * * * in accordance with the stipulation and conditions of a trust deed * * * and the several bonds secured thereby,” the guaranty to “become and remain operative upon the execution of the said bonds and trust deed.” The bonds, when issued provided for interest at an increased rate if not paid at maturity, but there was no evidence that the terms of the bond were known to the guarantors when the guaranty was executed. Held, that the guarantors were not bound for interest accruing after the maturity of the bonds.</p>

— IIon. Bobert Suoan, Judge. 1 Condemnation proceedings of a railroad right of way. A sheriff’s jury was appointed at defendant’s request to assess the damages plaintiffs might sustain by reason of the taking of the right of way through their land, and returned the following verdict: “We do not find that he or any of the prior owners of said land have ever paid back the damage which was originally paid by the corporation that first obtained the right of way.

— Hon. Fred O’Donnell, Judge. • Action to restrain, on various grounds, tbe enforcement of a tax for street improvements against the property of plaintiffs. Demurrer to petition overruled. Defendants electing to stand on their demurrer, decree was entered for plaintiffs from which defendants appeal. —

<p>Appeal from Palo Alto District Court. — IIon. A. D. Bailie, Judge.</p> <p>In eacb of these cases the defendant appealed to the district court from the action of the treasurer of Palo Alto county in assessing him for omitted property under chapter 50 of the Acts of the Twenty-eighth General Assembly. In each case a demurrer to a pleading seting out the. liability of defendant for the taxes thus assessed was sustained, and the plaintiffs appeal. The records in the several cases are identical, save as to the amounts of taxes assessed. The arguments on behalf of appellants are identical in the five cases, as are also the arguments for the respective defendants, although signed by different attorneys. The cases may therefore be determined together. —</p>

<p>Appeal from Polk District Court. — Iíon. W. F. Oonrad, J udge.</p> <p>This is an action, under section 2423 of the Code, to recover the amount of $7,882.07; being money .paid tbe defendants for intoxicating liquors sold to plaintiff in violation of law. There was a jury trial, resulting in a verdict for defendants. From a judgment rendered thereon, plaintiff appeals. —</p>

— Hon. S. M. Elwood,, J udge. Action for excessive freight charges. Judgment on directed verdict for the defendant. The plaintiff appeals.

— Hon. G. W. Burn-ham, Judge. Action to recover damages for injuries due to the vicious conduct of defendant’s horse, which plaintiff, at the time of receiving the injury, was riding under an arrangement with defendant. Yerdict for plaintiff, and judgment thereon, from which defendant appeals. —

— Hon. II. Bank, Jr., Judge. This is a controversy over a strip of ground in block 121 of city of Keokuk. Plaintiff and interveners claim that the strip was dedicated and accepted as a public alley more than ten years before the commencement of this action, while defendants insist that the dedication was conditional, that the condition was broken, and that there was no acceptance by the public of the alleged dedication.

<p>Appeal from Warren District Court. — Hon. James D. Gamble, Judge.</p> <p>Dependant was accused of the murder of her husband, John Hossack. The indictment charged the crime in the first degree. There was a jury trial, and from a verdict of guilty, and the imposition of a sentence of life imprisonment thereon, defendant appeals. —</p>

— Hon. G. W. Burn-ham, Judge. Defendant was indicted for tbo crime of assault witb\ intent to commit murder. He was dui® */ied, and from as. judgment rendered on a verdict of guilty he appeals. —

— Hon. (I. W. Wake-field, Judge. Action to recover fo'r use of laud claimed by plaintiff, and alleged to have been wrongfully occupied by defendant. Trial to the court without a jury, and judgment for plaintiff, from which defendant appeals. —

— Hon. J. B. Whitaker, Judge. The defendant was accused of the crime of rape, and convicted of an assault with intent to commit rape, upon one Mathilde H. Schaublin. He appeals. —

<p>3 Damage by Fire: evidence. Plaintiff was properly allowed to testify as to how much of his farm was in. cultivation.</p> <p>2 Harmless error. The admission of evidence that plaintiff had partially replaced the hedge fence destroyed by the fire, if erroneous was not prejudicial, where the court’s instructions on the measure of damages did not permit a recovery for the expenses of replacing the fence.</p> <p>4 Same. Testimony as to the value of the farm before and after the fire, although largely based on the cost of replacing the fences destroyed, was not erroneous.</p> <p>5 Same: Competency of witness. A'witness who testified to having had experience with timothy meadows, and knew the cost of restoring them, and who had lived for over thirty years a little over a mile from plaintiff’s farm, and was familiar with it, was qualified to testify as to the cost of restoring plaintiff’s meadow, destroyed by fire.</p> <p>1 Negligence: Jury question. Defendant conceded that sparks from its locomotive engines set fire to plaintiff’s property hut introduced evidence that the engine was equipped with tfie best spark arresters, which were in proper repair and that the engine • was in charge of competent employes, and operated with due care. Plaintiff’s evidence tended to show that one of the two engines attached to the train was not properly equipped and managed. Held,, that the question of defendant’s negligence was for the jury.</p>

— Hon. Obed Caswell, Judge. The defendant and one John Gray were jointly indicted for the murder of Joseph Williams. The defendant was separately tried, and convicted of manslaughter. He appeals. —

<p>Appeal from 8coit District Court. — Hon. James W. Bollinger, Judge.</p> <p>The defendant, having been accused and convicted of the crime of rape appeals. —</p>

<p>6 Murder: indictment. An indictment charging that an assault was felonious, deliberate,' with malice and aforethought, and the killing was willful, deliberate, premeditated, and with malice aforethought, charges murder in the first degree.</p> <p>4 Evidence. It was proper to permit a witness to identify cartridges picked up by him near the scene of the killing shortly after the crime.</p> <p>2 Cross-examination. A witness called by the state was asked on cross-examination as to trains passing near the scene of the crime at the time of the killing, defendant seeking to show that the one who fired the fatal shot might have escaped. Held, that the evidence was properly excluded, it not being cross-examination.</p> <p>3 Harmless Exclusion. Even if the exclusion was erroneous it was harmless, defendant, having shown on defense that a train did pass, and some one hurriedly boarded it.</p> <p>1 Manslaughter: evidence sustains conviction. On a prosecution for murder, it was shown that deceased was seen running away from four men who were pursuing him, and that three shots were fired, one killing deceased. Six witnesses testified that defendant was one of the pursuers, and some testified that he fired at least one shot. Some testified that they saw defendant pointing a revolver at' deceased after he had fallen. There was testimony that another of the pursuers had a rei volver when the killing occurred. Held, that the evidence sufficiently identified accused as the one who fired the fatal shot, to sustain a conviction.</p> <p>7 Sentence sustained. The maximum punishment for manslaughter imposed on defendant, will not be reduced, though the evidence as to the identification of accused as the one who fired the fatal shot was not strong.</p> <p>5 Principal and accessory. One may be accessory to manslaughter, if present, aiding and abetting.</p> <p>I 5 Charge and proof. An instruction that the defendant might be guilty, though he did not fire the fatal shot, if he assisted or abetted in the perpetration of the crime, was not open to the criticism that there .was nothing to show defendant an accessory before the fact.</p>

<p>Appeal fpom Monroe District Court. — Hon. Robert Sloan, J udge.</p> <p>Action for specific performance of contract to convey real property. Defense that the contract was procured by fraud, and also that plaintiff had failed to comply with the terms of the contract. Decree dismissing plaintiff’s petition, from which he appeals. —</p>

'Appeal from Mahaska District Court. — Hon. A. R. Dewey, Judge. Creditors’ bills ti> subject certain real estate, title to which is in the defendant, Ida F. Atkins, to the payment of judgments held by plaintiffs against C. W. Atkins. The trial court dismissed tlie petition, and plaintiffs appeal.—

- — Hon. Henry Bank, Jr., Judge. 1 On May 28, 1900, the plaintiff filed his petition, entitled in equity, alleging that in 1869, while he was a minor, his mother, Sarah Daugherty, who was his guardian, purchased certain land with funds belonging to him, and caused the same to be conveyed to' him; that thereafter, on the 27th day of May, 1872, he married, and on the day following his marriage, upon the representations of his mother and brothers that the land so conveyed to…

'Appeal from, Henry District Court.- — Hon. James D. Smyth, Judge. Action to recover damages for physical disability, produced by fright. A demurrer to the petition was sustained, and judgment rendered for the defendant. The plaintiff appeals. —

'Appeal from Warren District Court. — Hon. J. H. Appelgate, Judge. A paper purporting to be tbe will of Edward Perkins, deceased, being offered for probate, its admission was contested by tbe defendants, wbo are tbe sons of tbe testator. Trial to a jury, verdict for tbe defendants, and plaintiff appeals. —

<p>Appeal from Boone District Court. — Hon. J. R. Wi-iitaker, Judge.</p> <p>Ti-ie defendant, being accused and convicted of the larceny of a mare, appeals. —</p>

— Hon. H. M. Towner, Judge. Action in equity for an accounting and to recover tlie profits on an interest in a gold mining company, wbicb interest plaintiff claims be owns and bolds, and wbicb defendants insist he forfeited by failing to pay certain assessments levied thereon. From a judgment dismissing the petition and taxing costs to plaintiff, be appeals. —

— Hon. A. W. Wilkinson, Judge. Action oh a written order for an atlas and some maps. The trial court rendered judgment on the pleadings against the school district, and dismissed the petition as to Wright. Both plaintiff and the school district appeal. —

— Hon. F. W. Eichelberger, Judge. Action at law to recover damages for injuries sustained by plaintiff while attempting’ to board defendants passenger train. Trial to a jury, verdict and judgment for plaintiff, . and defendant appeals. —

<p>1 Self Defense: held not available. Defendant was engaged in a conflict in which he stabbed his opponent six times. Six months previously they had a controversy in which defendant offered his, opponent a dollar bill if he would strike defendant, and said he would “kill him if he did.” Afterwards defendant said to others that he would knife his opponent if he ever got a chance. Just- before the conflict, defendant abused his opponent. The evidence was in conflict as to who struck the first blow. Defendant’s opponent was the larger man but he was not armed. Held, that, defendant was not entitled to the plea of self-defense.</p> <p>2 Absence of Judge During Argument: held no ground for reversal? Waiver. After the evidence was closed on the trial of defendant for assault with intent to commit murder, the attorneys agreed that the judge might retire to a near-by room to prepare his instructions, and he did so; remaining out of hearing during most of the opening argument. Thera was no objection to his absence, or request for his return, or showing of prejudice on account of his absence. Held, that the temporary absence of the judge under such circumstances is not ground for reversal.</p>

<p>1 Malicious Prosecution: elements of damages: Distress of mind. In an action for malicious prosecution it was not error to permit plaintiff to show that on his' arrest at his home his mother fainted or was prostrated by the shock, and that plaintiff thereby suffered distress of mind.</p> <p>3 Same.- It was competent for plaintiff to describe his mental suffering while in custody.</p> <p>2 Place of confinement. It was not error to allow plaintiff to describe the place in which he was confined.</p> <p>' 9 Loss of social standing. In an action for malicious prosecution, evidence that immediately after .plaintiff’s arrest he ceased to be invited to social entertainments at which he had formerly been a guest was admissible, without plaintiff showing that his arrest caused the loss of social favor.</p> <p>2 Indignities during confinement — Harmless error. The admission of evidence that other prisoners called plaintiff bv name, and asked him what he was doing there, was not prejudicial error.</p> <p>10 Want of peobable cause: Instructions. In an action for malicious prosecution, instructions that the question of probable cause depended on whether an ordinarily prudent and careful man, under the facts as they appeared to him, in the exercise of reasonable care to ascertain the facts, would be justified in believing the plaintiff committed the crime, and that if defendant did not .use the means which an ordinarily careful and prudent man would exercise, under like conditions, to ascertain the facts connecting plaintiff with the crime, the proceedings were instituted without probable cause, did not impose too high a degree of care on defendant.</p> <p>11 Pxemplabv damages: Instructions. In an action for malicious prqsecution an instruction on exemplary damages that if defendant in instituting the alleged. malicious prosecution, was actuated solely by feelings of personal malice against the “defendant," etc., was not so misleading on account of the mistake in using the word “defendant” for “plaintiff” as to require reversal.</p> <p>4 Pleading: Mitigation. Under Code, section 3593, providing that, in actions for damages to person, character or property, no mitigalting circumstances shall be proved unless specially pleaded, defendant in an action for maliciously prosecuting plaintiff on a charge of attempting to murder defendant’s daughter, could not, without special plea, give evidence of statements by plaintiff that the daughter was unchaste, as bearing on plaintiff’s social standing, loss of which was an element of damage alleged.</p> <p>'.5 Evidence: Truth of charge. Evidence of such statements had no tendency to show that plaintiff was the person guilty of mailing the assault on the daughter.</p> <p>6 Rebutting malice. The statements were not admissible to rebut presumption of malice in causing plaintiff’s arrest, its being to explain malice, and ont to disprove it, there being no evidence, either, that said statements were reported to defendant.</p> <p>7 Review on Appeal: misconduct of counsel: ■Ruling on exception. Where counsel’s statement of what he expected to prove by a witness presented several propositions and the court merely" said “The latter part is admissible,” and both parties excepted, no ruling was presented for consideration.</p> <p>8 Non-frejudicial error — hearsay. In an action for malicious prosecution testimony of plaintiff’s father as to his statements to the sheriff on, the night of plaintiff’s arrest, which was the same night the crime for which he was arrested was committed, as to plaintiff’s whereabouts on that evening was not so clearly prejudicial as to require reversal.</p>

— Hon. James D. Smyti-i, Judge. The question to be disposed of arises on a motion made by plaintiff for a nunc pro tunc judgment against the defendants. The motion was denied, and plaintiff appeals.—

— Hon. W. K. Green, Judge. John Jacob Shaker died iu 1852, seised of certain land in Eulton county, 111., which, he devised to his four children, Henry E., Lewis D., Louisa E., and Luther A. Shafer, subject to a life estate therein given his wife, Margaret Shafer, In 1874 the devisees, except Louisa E. Shafer, executed a conveyance of the land to 'Daniel Eoshay, stipulating therein that “we hereby covenant with the said Daniel Eoshay that we hold said premises by good and…

— Hon. Frank W. Eichelberger, Judge. Action to recover damages caused by fire. Trial to a jury, and verdict and judgment for tbe plaintiffs. The defendant appeals. —

— Hon. Obed Caswell, Judge. Action on policy of life insurance. On motion of plaintiff a verdict was directed in her behalf, and from the judgment thereon defendant appeals. —

— Hon. T. ]VI. Bee, Judge. Action to recover the value of a horse alleged to have died on account of the negligence of the defendant. Trial to a jury, and verdict and judgment for the plaintiff, from which the defendant appeals. —

— Iíon. W. G. Thompson, Judge. Lot 3 in block 13 in Carpenter’s Second addition to Cedar Hapids fronts on Ninth street, and is half way between Second and Third streets. A house was built on this lot several years before any grade was established.

'Appeal from Woodbury District Court. — Hon. Wm. Hutchinson, Judge. Suit in equity to foreclose a mortgage and to set aside a tax deed on the mortgaged property. From a decree for plaintiff’s, defendants appeal. —

— Hon. F. R. Gay- , nor. Judge. This is an action in equity for the partition of certain real estate left by one Milo R. Tuttle, who died intestate and without issue. Plaintiffs are brothers and sisters of decedent. Jennie Raish was married to Milo R. Tuttle, and on his death was apparently his widow. She has since married one Raish.

- — IIon. J. H. Whitaker, Judge. Proceeding for the allowance of a claim against the estate of Timothy Donovan, deceased. Upon trial to a jury, the court directed verdict for defendant. Plaintiff appeals.

— Hon. W. B. Quarton, Judge. The defendant appeals from a judgment for a commission alleged to have been earned in finding a purchaser for land. —

Certiorari from Winneshiek District Court. — TIon. A. N. ■ Hobson, Judge. Certiorari to test the validity of the action of defendant, as district judge, in finding the plaintiff to be guilty of contempt in violating an injunction restraining him from maintaining a nuisance by selling intoxicating liquors. —

<p>Swamp Land Grant: title of state. The swamp land grant of 1850, directing the secretary of the interior to make a list and plats of the swamp and overflowed land granted to any state, and transmit them to the governor, and “at the request of said governor cause a patent to he issued to the state therefor, and on that patent being issued the title in fee simple to said lands shall vest in the state,” did not convey a present title to the state of all the swamp and overflowed lands within the state, hut only an inchoate right to acquire title hy patent and therefore a county, hy selling all its swamp or overflowed land, passed no title to land never surveyed, listed or platted.</p>

— Hon. W. S. Witi-irow, Judge. Plaintiff asks to have a judgment entered in the circuit court in 1886 in its favor against J. J. Wohlwend & Son so corrected as to show that it was rendered not only against said firm, but also against this defendant as a member of said firm. The lower court denied the relief asked, and plaintiff appeals. —

— Hon. John E. Oliver, Judge. Action in equity to impress a trust upon money in the hands of the defendants. Judgment for the plaintiff. The defendants appeal. —

— Hon. T. M. Fee, Judge. Action at law upon a policy or certificate of insurance by defendant upon tbe life of Lillian Beininghaus. Verdict and judgment for plaintiff, and defendant appeals. —

— ITon.' Clipeor-d P. Smiti-i, Judge. Action to recover damages suffered by reason of -an alleged assault and battery. The answer was a general denial, and also a plea that any force by defendant used -against plaintiff was in defense of bis property, which ■ plaintiff, at that time was attempting to destroy. There was -a jury.trial, •which resulted in a verdict in plaintiff’s favor, for the sum of $50. She appeals. —

— IIon. F. H. Gaynor, Judge. Action at law ou a policy of fire insurance. Defendant pleaded plaintiff’s failure to pay a premium note. . The case was tried to the court on the pleadings and an agreed statement of the facts, resulting in a judgment for defendant, and plaintiff appeals. —

— IIon. Wm. Hutchinson;, Judge. Action iu equity to enforce specific performance of an alleged contract to convey real estate. From a judgment dismissing the petition, plaintiff appeals. —

— Iíon. W. S. Kenyon, Judge. Action in equity to foreclose a chattel mortgage made to secure a series of notes falling due at different times. The contest here is as to rights of priority between plaintiff, the intervener, and the defendant W. S. Porter, who are note holders. There was a decree adjusting tlieir respective rights, which will be more specifically referred to in the opinion. Plaintiff and intervener appeal. Defendant W. S. Porter also served notice of appeal.

— I-Ion. Franklin C. Platt, Judge. Certiorari proceedings to determine tbe legality of the action of the board of supervisors in vacating an existing highway and establishing another on its own motion. Judgment for the defendants, from which the plaintiffs, appeal. — r

— Hon. T. M. Fee, Judge. Action for partition. The trial court found that plaintiff was entitled to a one-third interest in the premises in question, consisting of a house and lot, and ordered a sale thereof, and distribution of the proceeds. Defendant appeals. —

— -Hon. P. B. Wolke, J udge. In payment of the premium for one year on three policies of insurance each stipulating for an indemnity of $1,000, issued to him by the plaintiff December 11, 1896, the defendant executed to it his promissory note of even date, for $87, payable March 11, 1897.

.Appeal from Plymouth District Court. — Hon. George W. Wakefield, Judge. Action to recover damages for slander. Trial to jury, nnd verdict and judgment for- tbe plaintiff, from which tbe defendant appeals. —

— Hon. Ohas. A. Bishop, Judge. The city by appropriate resolution, passed upom-the.necessity for cemetery purposes of certain lots owned by Ann Mellichar, -and proceeded to condemn the same. She, not being content with the amount fixed by the sheriff’s jury,, appealed to the district court. Before trial the city dismissed the proceedings, and abandoned all claim' to the property.

<p>1 Trade Fixtures: railroad repair shop: Removal. A railway-company leased its property to another railway company, and thereafter mortgaged it including the lease to a trust company. After the execution of this mortgage the lessee huilt a repair shop, which it always regarded as a trade fixture, .on the leased premises, consisting of a frame building on a brick foundation. Thereafter both companies went into the hands of receivers, and still later the trust company commenced forelosure proceedings. After decree of foreclosure, but before sale, the repair shop was burned, and the lessees receivers, with' the proceeds of an insurance policy taken out by the lessee erected another. Held, that the purchaser of the lessee’s properties from its receivers took title to • the new repair shop, as against purchasers at the mortgage sale of the land on which it was built, and had a right to remove it.</p> <p>4 Failure to remove before termination of tenancy. A railroad company after leasing its property to another company, mortgaged it to a trust company, and thereafter the lessee built a trade fixture known as a “repair shop” on the leased premises. Both companies then went into the hands of receivers, thus terminating the lease, but the receivers of the lessee remained in possession as tenants of the receivers of the lessor. Foreclosure proceedings were then commenced, and after decree but before sale, the repair shop was burned, and the lessee’s receivers, as tenants, rebuilt the shop. Thereafter plaintiff bought the lessor’s property at the mortgage sale, and defendant bought the lessee’s property from its receivers. Held, that failure of the lessee to remove its shop during the existence of the original lease did not deprive defendant of the right to remove the new one; it having been erected during the lessee’s receivers’ tenancy, and the property having been in the hands of the court from the time of the master’s sale terminating such tenancy.</p> <p>2 Estoppel. One railway leased its property to another railway v company, and thereafter mortgaged it, including the lease to a trust .company. The lessee thereafter went into the hands of receivers who sold all its property to defendants, the trust company having in the meantime commenced foreclosure proceedings. After decree of foreclosure against the lessor, but before sale, the lessee erected a trade fixture known as a “repair shop” on the leased premises, which plaintiff claimed under the mortgage sale of the lessor’s property. Held, that, defendants and their assignors having always been in possession of the shop, the mere fact that plaintiff purchased the real estate on which it was situated did not estop defendant from claiming it.</p> <p>3 Same: Foreclosure sale. Though the lessee company was a party to a foreclosure suit, the repair shop having been built after the decree, though before sale, and the ownership of the shop not having been adjudicated, the sale alone could not estop defendant from claiming such shop.</p> <p>5 Review on Appeal: refusal to allow cross-examination of affiants: Motion to modify instructions. The right to cross-examine affiants, whose affidavits were offered in support of a motion to modify an injunction, is within the discretion of the trial court, and its denial will not be reviewed.</p>

— Hon. J. B>. Wi-iitaker, Judge. Creditors' bill to subject certain real estate and personal property to the payment of judgments held by plaintiff against F. B. Griffin. The trial court dismissed the petition and plaintiff appeals. —

<p>Appeal from Dubuque District Court.- — IIon. M. C. Matthews, Judge.</p> <p>The defendant appeals from a judgment against it for damages occasioned by a defective sidewalk. —</p>

- — -Hon. M. J. Wade, Judge. Action iu equity to have a certain, road declared a public highway, and to secure the removal of obstructions therein. From a judgment dismissing the petition at plaintiff’s costs, he appeals. —

<p>1 2 Injuries to Child: turntable in neighborhood of street: Negligence in fastening. A- railroad company maintaining a turntable -on an unfenced lot, near a public alley, and which, was from 80 to 300 feet from the street, is liable for injuries received by a seven year -old child while playing thereon, caused by the company’s failure to use reasonable care to so guard and fasten the turntable as to prevent injuries to children tempted to play on it.</p> <p>3 Sufficiency of fastening: Jury question. Where, in an action against a railroad company for injuries received by a child while playing on defendant’s turntable, it was shown that the turntable was unfastened by one of the children with plaintiff, the question of the sufficiency of the fastening used was one of fact for the jury.</p> <p>4 Capacity to appreciate danger: Jury question. A child seven years and eight months old cannot be considered, 'as a matter of law, of sufficient age and intelligence to appreciate the danger to which she exposed herself in. .playing on a railroad turntable, and such question was properly left to the jury in determining the question of contributory negligence.</p> <p>5 ■ Contribution of playmates to injury. The fact that injuries'received by a child while playing on a railroad turntable' were immediately caused by the child’s playmates unfastening and operating the turntable, does not relieve .the company from liability, the gist Of the action being the keeping of .a dangerous machine in a place where children might reasonably be expected to resort and to play thereon.</p>

— Hon. A. S. Blair, J udge. Appeal from the allowance of a claim against the estate -of John F. Miller, deceased, for taxes assessed upon moneys and credits in the year 1895. —

- — IIon. A. J. House, Judge. Action at law under the provisions of Code, section 1314, to recover a sum alleged to be due for taxes upon property withheld from assessment. From the judgment of the district court sustaining a demurrer to the petition, the plaintiff appeals. —

- — Iíon. N. W-i Macy, Judge. Action at law to recover damages for an alleged assault and battery. There was a verdict and judgment for defendant, and plaintiff appeals. —

— Hon. F. H. Helsell, Judge. Action at law to recover a money judgment upon a contract for the conveyance of land. The facts are more particularly set forth in the opinion. There was judgment in the district court for the defendants, and plaintiffs appeal.—

— IIon. J. P. Whitaker, Judge. Creditors’ bill to subject certain lots in the city of Webster City, the record title to which is in defendant Caroline M. Philbrick, to the payment of a judgment held by plaintiff against Emily M. Prestage. The trial court dismissed plaintiff’s petition, and plaintiff appeals. —

— Hon. A. N. .Hob-son, Judge. Appeal from tbe judgment of'tbe district court establishing tbe intervener’s lien upon a car load, of horses as against tbe claim of tbe plaintiff under a writ of attachment.

— Hon. W. B. Quad- ■ ton, Judge. Suit in equity for the specific performance of a contract for the sale of real estate. The trial court denied the relief asked, but rendered judglnent against defendant for tbe sum of $500; that being the sum named in the contract which either party should forfeit in case of failure to perform. Defendant appeals. —

<p>Robbery: defined: Instructions. In a prosecution for robbery, an instruction defining tbe offense as “larceny of property from the person of the owner, accompanied by violence or putting him in fear,” is not erroneous under Code, section 4753, providing that if any person, with fear or violence, or by putting in fear, steal and take from the person of another any property that is the subject of larceny, he is guilty of robbery.</p>

Woodbury District Court. — ITon. Wm. Hutchinson, Judge. Action by a married woman to recover for services rendered in cooking for and boarding employes of the defendant at his request. Defendant claims that the services were rendered by plaintiff as the wife of one J. 'P. Lindsey, who was in his employ, and that they were fully paid for in a setlement with said J. P. Lindsey. Verdict for plaintiff, and from a judgment thereon defendant appeals.—

- — -Hon. Henry Bank, Jr., Judge. Action in replevin to recover possession of certain hogs. Defendant claims right to possession by virtue of distraint of the animals damage feasant. Trial to the court. Judgment for plaintiff, from which defendants appeal. —

— Hon. B. P. Birdsall, Judge. ■ Action to recover damages for personal injuries occasioned by a defective walk. Verdict and judgment for the plaintiff, from which the defendant appeals. —

<p>Appeal from Johnson District Court. — Hon. M. J. Wade, Judge.</p> <p>Prosecution for adultery. Prom a judgment on conviction, defendant appeals. —</p>

— Hon. S. M. Weaver, Judge. Action to recover for personal injuries. At the close of plaintiff’s case tbe trial court directed a verdict for defendant, and from a judgment on such verdict plaintiff appeals. —

— Hon. W. S. Withrow, Judge. Action for tbe conversion of a stock of merchandise, consisting of clothing, boots and shoes, and gentlemen’s furnishings. Defendant denied plaintiff’s ownership or right to the possession of the property, and pleaded that he was the owner thereof, or at least, -held title thereto as security for money advanced to plaintiff’s intestate, Julius Brown; the amount of which was agreed to by Brown during his lifetime.

— Hon. J. E. AYhitaker, Judge. Action to recover for ..personal injuries received while in the employment of the defendant company, engaged in transferring railroad rails from one car to another. Verdict and judgment for plaintiff. Defendant appeals. —

— ITon. S. M. Weaver, Judge. Action to enforce specific performance of a contract to convey real estate. From a decree dismissing the petition, and taxing costs to plaintiff, he appeals. —

— Hon. M. J. Wade, Judge. Action to recover forfeitures on sales of intoxicating liquors to minors and persons in the habit of becoming intoxicated. Judgment for defendants. The plaintiffs appeal. —

— Hon. Fred O’Donnell, Judge. Aeread from judgment for damages on account of an alleged libel. The facts are more particularly stated in the opinion. —

— Hon. C. A. Bishop, Judge. Action to quiet title iu a certain lot. The issues raised by the answer and thé petition of intervention by Susan Stoner present the questions decided. Decree was entered for plaintiff, and both defendant and intervener appeal. —

<p>Accord and Satisfaction: jury question. In an action by a client against bis attorney to recover money collected by tbe attorney on tbe client’s insurance policies, tbe attorney pleaded, and introduced testimony tending to show, that there was a dispute as to the amount of tbe attorney’s fees for tbe collection, tbe client asserting that tbe agreement provided for a fee of 10 per cent, on the amount collected, while the attorney denied this, and claimed a larger sum; that afterwards the client came to the attorney’s office, and wanted the money collected on the policies; that the attorney offered to give a check for what he claimed was due; that the client stated that this would make a considerable sum for the attorney’s charges; that the attorney explained what work had been done, and that, if the client would take the amount designated in satisfaction, he could do so, — otherwise that he might leave it; that the client took the amount. Held, that the debt to plaintiff, which was unliquidated, was satisfied by the acceptance of the check, — its acceptance also involving the acceptance of the condition, and therefore this defense should have been submitted to the jury.</p>

<p>Marshalling Assets: succession mortgages: Release of execution levy. A creditor, having a mortgage on real estate, levied execution on the personal property of the debtor in a suit to recover the same debt, when another creditor, having a chattel mortgage subsequent to the levy, procured an assignment of the judgment and real estate mortgage of the first creditor, and released the levy, though a third creditor had procured a 'second mortgage on the land. Held, that the mortgage to the third creditor became the prior lien on the land, the creditor taking the assignment having no right to release the execution levy and hold tbe personal property under its chattel mortgage, and make its assigned claim out of the real estate under the assigned mortgage.</p>

<p>Appeals from Page District Court. — IIons. W. R. Green and A. B. Ti-iornell, Judges.</p> <p>The plaintiffs in these two cases are husband and wife, and were both injured at the same time by collision with one of the defendant’s passenger trains at a highway crossing over its road. The negligence charged'is the failure to blow the whistle and ring the bell, for the crossing as required by law. It is conceded that the whistle was not sounded. Whether the bell was rung is a mooted question. The train was one which ran from Omaha, Neb., to St. Louis, Mo. It carried local and through mail, and on the night in question had passengers for points in Missouri. It is shown conclusively that when the train started on its run the engine whistle was in good working order, and also that it became disabled, so that it would not work, about 35 miles south of Council Bluffs; that the engineer and fireman both tried to fix it so that it could be used, but were unable to do so with the time and means at hand; that there was no division point where another engine could be obtained, nor any machine shop under the control of the defendant where the whistle could be repaired between the point where its disability'was discovered and that where the accident occurred. The plaintiffs were old residents of the neighborhood, and thoroughly familiar with the crossing in question, and with the regular time of this 'particular train; on the night in question it ivas about thirty minutes late. The plaintiffs were in a single-seated buggy, with the top up and the side curtains on. Just before the wagon road intersects the railroad, it passes through a cut some twelve or fourteen feet deep, and the railroad also passes through a long cut of about the same depth immediately northwest of the. highway crossing. The plaintiffs were traveling due south, and the wind was blowing strong from the south or southeast. When about fifty-five feet away from the railroad track the husband, who was driving, slowed the horse to a walk, and looked out in front of the carriage top, and at the same time listened for a train, but did not hear the approaching train. From where he then was, he could not see it, and he did not see or hear it ímtil his horse was right to the track, when he made an effort to get across ahead of it, but failed. Verdicts were returned for the plaintiffs in both cases, and judgments rendered thereon, from which the defendant appeals. The cases are submitted to us together. —</p>

<p>Appeal from Sac District Court. — BIon. S. M. Ei.wood, Judge.</p> <p>Action upon a guardian’s bond. Judgment for plaintiff, and defendants appeal. —</p>

— How. S. M. Weaver, J uclge. This action was brought by the plaintiff to recover dam-' ages for building a railroad across his land without first having obtained the right so to do. The defendant answered, admitting the building of the road as alleged, but averring that it entered upon the plaintiff’s land and constructed its road thereon with his permission.

— How. B. P. Birlsall, Judge. Plainttee, claiming to be tibe illegitimate daughter of one Reuben S. Bennett, deceased, asks that she be decreed to be the sole surviving heir of the deceased, and entitled to receive the entire estate, both personal and real, of which' the said Reuben S. Bennett died seised, as against the defendants, who claim as collateral heirs. A decree was entered for plaintiff as prayed, from which defendants appeal. —

— Hon. William Hutci-iinson, Judge. Suit in equity to quiet title. From the decree, plaintiff and interveners and cross-petitioners in the main action,, and defendant Skinner in the case brought by Teachout, appeal.- —

<p>1 Fictitious Mortgages: validity. A mortgage on real estate, executed by tbe owner thereof m the name of a fictitious person, to whom the owner has made a fictitious conveyance is valid as between mortgagor and mortgagee.</p> <p>2 Kbcobdinq: Acknowledged before grantee. When such mortgage purported to be acknowledged before the mortgagor as a notary public, it was not entitled to record, and the recording thereof is not sufficient to impart constructive notice.</p> <p>3 Curative statutes. Acts Twenty-fourth General Assembly, chapter 42, amending Code 1873, section 1967, and legalizing the acknowledgment of recorded deeds and mortgages, which were executed prior to a certain date, does not make the record of a defectively acknowledged mortgage constructive notice thereof as against a person purchasing the land in good faith, and for a valuable consideration, prior to the passage of such act.</p> <p>4 Pleadings: Evidence over objection not effective without. The admission of evidence, over objection, that a purchaser of real estate was a bona fide purchaser for value, without notice of a pre-existing mortgage, which was not properly recorded, is not sufficient to defeat such mortgage, where the purchaser does not plead such facts, but relies on a release of the mortgage.</p>

<p>1 2 Deed from Parishioner to Clergyman: undue influence presumed. A clergyman. wIlo is a grantee in a deed from a parishioner, although deriving no benefit therefrom, has the burden of showing good faith in the transaction, as the law presumes that he is guilty of undue influence.</p> <p>1 3 Same. Where a person enfeebled by age and illness, and susceptible to influence, conveys property to his pastor, in trust for the parish, greatly in excess of its needs, and in addition to previous liberal gifts, and contrary to his intentions, expressed before and after making the conveyance, and the pastor had opportunities to exert undue influence, the law presumes that the conveyance is invalid, and, in the absence of evidence overcoming the presumption, the conveyance must be set aside.</p>

<p>Appeal from Lee District Court. — Hon. Henry Bank, Jr., J"udge.</p> <p>Action in equity to restrain the defendants from interfering with the harvesting of ice formed on public waters. Trial, and judgment for the plaintiffs. The defendants appeal. —</p>

- — Hon. H. M. Towner, Judge. Action to recover, upon a policy of insurance against loss or damage by fire, for a loss tbat occurred November 12, 1898. The policy set out provides that it shall be void “if the premium be not paid when due.” Defendant answered, admitting that, but for the defense set up in count 2, plaintiff would be entitled to recover the amount of said loss.

— Hon. S. M. Elwood, Judge. This is an appeal from certain rulings of tbe trial court in the above cause, wherein defendant was accused of the ■ crime of murder in the second degree, perpetrated, as is alleged, in an attempt to produce a miscarriage. A verdict of not guilty was directed, and the state appeals. —

.Appeal from Fayette District Court.- — Hon. L. E. Fellows, Judge. Action to recover for tbe death of plaintiff’s intestate, caused, as claimed, by the negligence of defendant railway. There was a jury trial, resulting in a verdict and judgment for plaintiff. Defendant appeals. —

<p>Appeal from Monona District Court. — Hon. Geo. W. Wakeeield, Judge.</p> <p>Mandamus to compel the defendant, who is county auditor of Monona county, to award to plaintiff a contract for the construction of a ditch. Demurrer to petition being sustained,’ and plaintiff electing to stand upon his pleading without further amendment, there was judgment for defendant, and plaintiff appeals.- —</p>

— PIon. W. F. Conrad, Judge. Action to recover for personal injuries. From a ver-dict and judgment in plaintiff’s favor, defendant appeals. — ■

— Hon. W. I£. Green,, Judge. Action to recover for a loss within the terms, of a policy of fire insurance. Defendant relied upon misrepresentationsinthe application as to. plaintiff’s title to,' and incumbrance of the insured property subsequent to the making of the contract of insurance, and in violation of its terms; also that there was a failure to furnish proofs of loss. There was a judgment on a verdict for plaintiff, from which defendant appeals. —

<p>Pleading: contract. Where plaintiff’s petition alleged an agreement between defendant and his mother whereby he agreed to support her during her life, and that while at plaintiff’s house she was taken ill, and at defendant’s request plaintiff nursed and supported her for 80 days, for which defendant promised to pay, and set forth a written contract between defendant and his parents wherein he agreed to pay them a certain sum annually during life, and more if necessary for their support, and a letter from defendant saying, “I am ready to settle for mother’s board and other expenses during her recent illness,” such a petition states an enforceable contract.</p>

<p>Appeal from Dallas District Court. — How. J. D. Gamble,. Judge. i</p> <p>A'ction by the plaintiff to establish and enforce a mechanic’s lien against the defendants Mitchell and. Thorn-burg. The McColl Lumber Company and T. J. Gilbert were material men, who ask to recover on independent contracts-with Mitchell and the Thornburgs. J. H. Eller is a material man, who seeks to establish a lien. There was a judgment for the plaintiff and for Gilbert and the McColl Lumbér Company against the defendants Mitchell and Thornburg, and a judgment for the intervener, Eller, against the plain-» tiff, Shope. The defendants Mitchell and Thornburg and the intervener, Eller, appeal. —</p>

— Hon. William Hutchinson, Judge. Action for damages for personal injuries alleged to-have been sustained by plaintiff in being wrongfully ejected or thrown from a moving train. • At the close of the plaintiff’s evidence the court sustained defendant’s motion for a directed verdict in its favor. Verdict and judgment accordingly, and plaintiff appeals. —

— IÍon. A. S. Blair, Judge. Action for specific performance of an alleged contract to convey real estate situated in Black Hawk county. Decree for plaintiff. Defendants appeal. —

<p>Appeal from Polk District Court. — Hon. S. E. Prouty and W. E. Conrad, Judges.</p> <p>The defendant was convicted of a violation of a city ordinance requiring bicycle riders to carry lights after dark when riding on the streets of the city, and he appeals.—</p>

<p>Appeal from Woodbury District Court. — Hon. F. B. Gay-no r, Judge.</p> <p>Action iu equity to enjoin the opening of a public road ordered established by the board of supervisors of Wood-bury county. The district court dismissed the petition, and plaintiff appeals. —</p>

— Hon. J. B. Whitaker, Judge. A divorce action, based on cruel and inhuman treatment. Decree for the plaintiff, from which the defendant appeals. —

— Hon. John C. Siierwin, Judge. 1 Platntiee alleges as its cause of action in substance as follows: That on August 15, 1892, the defendant. Samuel H. Butterbaugh, executed and delivered his promissory note to Parmelia Gidldings for $511.25, due five years after date, with 8 per cent, interest and attorney’s fees, and his mortgage on his undivided one-third interest in certain real estate described to secure the same.

— Hon. C. A. Bishop-J udge. Action in equity for specific performance of an alleged contract to convey land. Upon trial in the district-court the relief prayedl was denied, and the plaintiff appeals-

— Hon. G. W. WakeEIBLDj Judge. Plaintibb brought an action of foreclosure against defendants on a mortgage of real estate which secured a bond payable in installments. The action was for judgment for the first installment only. A decree was rendered ordering the sale of the mortgaged property for the payment of such installment, but expressly making the sale subject to the other installments not then matured.

— Host. John F. Oliver, Judge. Action for rent accrued under an oral contract of lease. Defendant pleaded payment. Verdict and judgment for defendant. Plaintiff appeals. —

— Hon. E. E. Ayles worth, Judge. The plaintiffs land was first conveyed as a tract out of tbe government subdivision of 160 acres in 1861 by the following description: “The west end of the north half of the south half of the northeast quarter of section 27 — 75—44, 'commencing at a stake below the ridge of the aforesaid piece of land, on the south side, and running parallel with said ridge to a stake on the north side of the aforesaid piece of land,— containing eighteen…

W. B. Quarton and S. M. Weaver, Judges. Suit in equity to enjoin defendant from crossing plaintiff’s right of way and depot grounds in the town of Storm Lake. A temporary writ was granted by Judge Helsell without notice, and on defendant’s motion Judge Quarton dissolved the writ. The case was thereafter tried on its merits before Judge Weaver, and a decree entered dismissing plaintiff’s petition.

— Hon. Franklin C. 'Platt, Judge. Action to subject to tbe satisfaction of plaintiff’s judgment 40 acres of land conveyed by Elvira Campbell and Eva C. Downing and husband, judgment defendants, to W. E. Downing, Mary E. Briggs, and D. S. Downing. The petition was dismissed, and plaintiff appeals. —

— Hon. W. B. Quarton, Judge. This is a claim against an estate founded on a written ■agreement, wbicb is resisted on the ground that nothing is >due thereon. The case -was tried to the court, — a jury being waived, — and there was a judgment in plaintiffs-favor, establishing her claim in the sum of $1,175.10; being: 6 per cent, on the sum of $2,075 from the date of said contract less the payments indorsed thereon and an additional credit of $30 allowed by the court.

- — Hon. L. E. Fellows, Judge. The plaintiff is a devisee under tbe will of bis deceased father, John Collins, and tbis action is brought to have a part of said will construed.

<p>Vacation of Streets: bequest by abutter. Under Code, section 920, authorizing vacation of plat or part thereof, and streets therein, if it appears that all the owners of lots in the plat desire it, streets should not be vacated, the owners of lots on one side of it not having so requested.</p> <p>3 Street needed for future public use. Under Code, section 920, providing that if a street laid ¡out on a plat shall be needed for public use it shall be excepted from the order of vacation, the fact that it will be necessary in the future requires such exception.</p> <p>4 Reasonable time for acceptance of. street. What is a reasonable time for acceptance of street on a plat depends on the situation and circumstances.</p> <p>1 Appeal: amendment to abstract: Filing transcript. Appellee having in an additional abstract set out portions of the evidence averring them to be part of the record, cannot object that a transcript was not seasonably filed.</p> <p>1 Trial de Novo: Exception to decree needless. Exception to decree is not necessary for a hearing de novo on appeal.</p>

<p>1 Intoxicating Liquors: recovery of price paid for: Contracts not •made in Iowa. Code, section 2423, providing that all payments for intoxicating liquors sold in violation of the chapter should he held to have been received in violation of law, and on a agreement of the receiver to repay on demand the consideration therefor, does not affect a sale made outside of the state, though in response to an application secured hy an agent in the state, and there delivered to the purchaser. ,</p> <p>1 2 What is iowa sale. Where the seller ships the liquors into the state under a hill of lading taken in his own name, and sends the hill of lading to a hank, with directions to deliver to the purchaser on making a certain cash payment and delivering certain notes, etc., the sale is an Iowa sale, and invalid within the statute.</p> <p>3 Counterclaim for: Time of making demand for repayment Code, section 3570, provides that a counterclaim consists of a cause of action in favor of defendant which he “might have brought when suit was commenced, or which was then held, either matured or not, if matured when so pleaded.” Section 2423 provides that all payments for intoxicating liquors are received on a valid agreement by the receiver to repay the consideration on demand. Held, that the obligation to repay the consideration is positively imposed, and the time of repayment, only, is dependent on demand, and therefore a claim hy a purchaser of liquor for repayment of the purchase price already paid was held hy the latter at the institution of a suit for the balance due, and, where matured hy demand, before being pleaded, constituted a good counterclaim in his favor.</p>

— Hon. C. H. Kelley, -Judge. Action to recover damages for a persona] injury alleged to have been caused by tbe negligent operation of the-defendant’s railway. There was a trial to a jury and a verdict and judgment for the plaintiff. The defendant appeals,

— Hon. C. P. Holmes,. Judge. Action to recover for personal injuries received by plaintiff, while working as an employe in defendant’s mine. At the close of the evidence for plaintiff, the court, on motion, directed a verdict for defendant. From the judgment on such verdict-, plaintiff appeals. —

<p>Appeal from Polls District Court. — ITon. C. P. Holmes, Judge.</p> <p>The plaintiff obtained judgment against the Des Moines Pork Company, and caused C. H. Gates to be garnished, under an execution duly issued, as a supposed debtor of the judgment defendants. Issue was joined on the garnishee’s answer, denying any indebtedness, and trial was had to the court. From judgment of $264.37 against him, the garnishee appeals. —</p>

<p>4 Review of Liquor Consent Statement: trial by juey. Under Code, section 3650, providing that issues of fact in all ordinary actions must be tried by a jury, and all other issues by the.court, an appeal to the district court from a finding by supervisors as to the sufficiency of an ex parte statement of consent to the sale of intoxicating liquors is not triable by a jury.</p> <p>5 Court and jury. In such case error in submitting the issues to the jury is not cured by the court’s adoption of the jury’s findings.</p> <p>6 Evidence: Parol variance of poll hook to show that signer voted. Under Code, sections 2448, 2449, providing that the statement of consent to the sale of intoxicating liquors shall be signed by a certain percentage of the voters who voted at the last preceding'election as shown by the poll list of such election, where a name on the statement of consent is different from that appearing on the poll hooks parol evidence is not admissible to show that the person who signed the statement of consent voted at a preceding election, though under a different name.</p> <p>6 Number of voters in a particular town. Under Code, section 2450, requiring the supervisors to canvass statements of consent to the sale of intoxicating liquors, and enter the result in the county and in the various towns and townships therein, on an issue as to the sufficiency of certain statements of consent, evidence showing where various voters resided is admissible to show the number of voters in each particular town.</p> <p>1 Appeal: correction ojp record below. The trial court may correct the record as to a material matter after appeal.</p> <p>1 Review of ruling on correction.- When no appeal is taken from a ruling correcting the record, the supreme court cannot determine the correctness of the conclusion reached on the evidence. ■</p> <p>2 Apralable matters: Finding liquor consent statement sufficient Under Code, sections 4100, 4101, giving the supreme court appellate jurisdiction, and allowing appeals from final orders in special actions affecting a substantial right, an appeal will lie from a determination of the sufficiency of a statement of consent to the sale of intoxicating liquors.</p> <p>3 Certiorari and appeal. Where a certiorari proceeding merely determines the jurisdiction of the district court in affirming a conclusion of the supervisors as to certain statements of consent to the sale of intoxicating liquors, the judgment thereon does not preclude an appeal involving other questions.</p> <p>3 Waiver of appeal — election of remedies. The prosecution of a certiorari to review the determination of the district court as to the sufficiency of statements of consent to the sale of intoxieating liquors is not a waiver of appeal, as election of remedies does not apply, appeal and certiorari not being necessarily inconsistent remedies.</p> <p>7 Costs: Taxation to objectors. Under Code, section 2450, authorizing the taxation of costs on appeal against the losing party, a contention on appeal from a determination as to the sufficiency of certain statements of consent to the sale of intoxicating liquors that no costs should be taxed to the objectors, in any event, is without merit.</p>

— Hon. C. P. Holmes and S. F. Pbouty, Judges. This is an equitable action, in which, the plaintiff alleges that he is the owner of one-half of the capital stock of the Homestead Company and of the Pierce-Wallace Publishing Company. He a.sks a decree establishing his ownership in the stock claimed, and for other relief as herein stated. The Homestead Company was a corporation with a capital stock of $20,000, divided into 200 shares.