Volume 118 — Iowa Reports

— Hon. W. S. Withrow, Judge. The appellant with three others, was indicted for conspiracy, with intent by false pretenses to obtain the signatures of certain persons to certain deeds, mortgages, promissory notes, and other instruments in writing, the false making of which would be punished as forgery, and, being separately tried, he was found guilty, and sentenced to imprisonment in the penitentiary, from which judgment he appeals.

<p>1 Husband and Wife: alienation op wipe’s affections. In an action for damages for alienating the affections of the wife it must not only appear that acts and conduct designed and intended to effect the same were used, hut that the result was actually accomplished by such means.</p> <p>2 Same: evidence: Evidence considered and found insufficient to show either conduct on part of defendant designed to effect the alienation of wife’s affections, or that same was accomplished by him.</p>

<p>1 Larceny: evidence of similar offense : when admissible. In a prosecution for larceny where evidence of similar crimes committed at the same time is offered to show defendant’s connection with the main offense,- it should sufficiently appear that defendant was connected with the subject of the other larceny.</p> <p>2 Same: conduct of oodefendant: how considered. Evidence of the conduct of a codefendant at the time of the larceny, though proper, should not be considered for the purpose of connecting the other defendant with the crime.</p> <p>3 Same: evidence. The whole evidence in the case considered and found insufficient to connect the defendant with the crime charged.</p>

— Host. W. B. Quarton, Judge. ’ . Action in equity to enforce specific performance of contract to convey land. The district court dismissed the petition, and plaintiff appeals.

Henry Bank, Judge. Action on an insurance policy on the life of George C. Spencer, issued November 20, 1848.

<p>Appeal from Louisa District Court. — Hon. W. S. With-row, Judge.</p> <p>Action to recover the possession of a .promissory note purporting to have been signed by plaintiff. The action was also aided by an injunction restraining the defendant the Bankers’ Investment Company from prosécuting an action on said note before a justice of the peace of Polk county, Iowa. The trial court found for the plaintiff, and defendants Howell & Go. and the Bankers’ Investment Company appeal.</p>

<p>Appeal from, Lee Distriet Court. — IIon. Henry Bank, Judge.</p>

— Hon. E. W. Eichblberger, Judge. Action in equity to foreclose a mortgage given 'to secure certain promissory notes executed by T. J. Davis. Judgment dismissing the claims of W. E. Baldwin and the bank. Plaintiffs appeal.

— Hon. W. E. Green, Judge. Action at law for damages on account of personal injuries occasioned by the alleged negligence of the defendant. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. T. M. Fee, Judge. Marion Robb wfis the owner of the land involved in this action, and, with his wife, occupied a portion of it as their homestead. A written contract for the sale of the entire tract to the defendant was made and signed by the defendant and Robb. Mrs. Robb was present when the sale was negotiated, and took part therein. She offered to sign the contract at the time of its execution, but did not then do so, because it was thought unnecessary.

— Hon. W. S. Ken- ' yon, Judge. Action in equity to enjoin the enforcement of two certain judgments, and have them annulled, canceled, and set aside' on the ground that they were rendered without jurisdiction. A demurrer to the petition was sustained, and, plaintiff electing to stand upon its pleading, judgment was rendered for defendants, from which plaintiff appeals.

— Hon. Geo. W, Wakeeibld, Judge. Action at law to recover damages for injuries received by plaintiff while operating a freight elevator in defendant’s building. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

<p>Appeal from Plymouth Distriet Court. — Hon. John F. Oliver, Judge.</p> <p>Action to quiet title to land' and for accounting of rents and profits. Decree as prayed. Defendants appeal.</p>

— Hon. O. P. Holmes, Judge. Action at law to recover damages for fraudulent representations as to the financial condition of a corporation. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.

<p>Appeal from Van Burén District Court. — Hon. Robert Sloan, Judge.</p> <p>The opinion states the case.</p>

— Hon. W. B. Quarton, Judge. Action on a written instrument, by which defendant and others purported to undertake to pay $100 each for shares in a certain described stallion.

— Hon. A. N. Hob-son, Judge. Appeal from an order of the district court setting aside the verdict.of a jury in defendant’s favor.

<p>1 Assessment of Taxes: appeal from board of review: notice. Service of notice of appeal from the action of a board of review in the matter of the assessment of taxes is sufficient to give the district court jurisdiction.</p> <p>2 Same: shares of stock: capital: bonds. Where the shares of stock in a banking corporation are assessed to the bank according to law, the bank cannot deduct from such assessment government bonds held by it as part of its capital.</p>

<p>1 Action to Annul Special Assessment: reassessment op tax. Chapter 4A, acts 22nd General Assembly gives cities the power to correct by ordinance and reassessment any defective assessment of a special tax and is not limited to prior assessments.</p> <p>2 Same: manner op assessment: construction op statutes. Statutes authorizing special assessments are strictly construed, and an assessment of town lots in pairs or en masse is void.</p> <p>3 Same: estoppel to deny assessment. One taking a conveyance of property subject to “special assessments” is not estopped from denying the validity of assessments of which he had no knowledge, and which did not enter into the consideration for the deed.</p>

— Hon. Franklin C. Platt, Judge. Indictment charging defendant with the crime of breaking and entering a railroad car with intent to commit larceny. There was a verdict of guilty, and the defendant, having been sentenced to a term in the penitentiary, appeals.

— Hon. F. R. Gay-nor, Judge. A tract of land in Woodbury county had been regularly assessed for taxation, taxes levied thereon, and it offered for sale at the regular tax sale of each year from 1894 to .1898, inclusive, for taxes, interest, penalties, and costs, and, for want of bidder, remained unsold.

<p>1 Action to Reform Contract: place of suit: county of agency. Where an agent has special authority to solicit orders for goods in a certain county, and such agent is present in said county with the goods for delivery, there is such an office or agency of the principal as will authorize commencement of suit in such county under Code, section 3500, and a change of venue will not he granted.</p>

— Hon. A. B. Blair, Judge. Suit in equity to quiet title to certain lots and lands in Buchanan county. Plaintiffs claim title as executors of the estate of David Stevenson, Jr., deceased.

J. R. Whit aker, Judge. Action to recover for breach of warranty. Trial, and a verdict and judgment for the plaintiff. The defendants appeal.

— Hon. George W. Wakefield, Judge. Action in equity to set aside and declare void certain deeds by which one Harmess J. Howard conveyed real estate to the defendant. Decree as prayed, and defendant appeals.

<p>Appeal from Cerro Gordo District Court. — Hon. C. H. Nelly, Judge.</p> <p>Action to recover commission for sale of real property. Verdict and judgment for plaintiff. Defendant appeals.</p>

<p>1 Action on Written Instrument: correction or mistake in testimony. An evident mistake of the reporter in taking down the testimony of a witness may be corrected .on motion supported by affidavits.</p> <p>2 Same: statute or limitations: evidence. Evidence considered and found sufficient to take the instrument sued on out of the statute of limitations.</p>

— Hon. Obed Caswell, Judge. Action to recover the value of a road cart and single harness taken and sold under an execution against the plaintiff. Trial to a jury, and verdict and judgment for the plaintiff. The defendants appeal.

— Hon. Fred O’Donnell, Judge. Action at law to recover damages for personal injuries received by plaintiff while attempting to alight from a street car on defendant’s line of road. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

<p>1 Action to Quiet Title: constructive fraud: evidence. Where land was purchased with the proceeds of an insurance policy on the life of the husband and which was payable, to the widow on his death, she is entitled to the fee, and a conveyance to her of a life estate with the remainder to her children, is a constructive fraud.</p> <p>3 Statute of Limitations: laches. The widow discovered the condition of her title nearly five years prior to the commencement of the action, but under the peculiar facts in the case is not chargeable with laches.</p>

— Hon. H. M. Remley, Judge. Replevin to recover possession of personal property, consisting of household goods, levied on by defendant, as sheriff, under an execution against plaintiff. J. 0. Young intervenes, claiming right to possession as owner of the property by virtue of a purchase from plaintiff antedating the levy. Jury waived. Judgment for defendant against plaintiff and the surety on the replevin bond. Plaintiff and intervener appeal.

<p>Appeal from Scott District Oourt. — Hon. James W. Bolinger, Judge.</p> <p>Action for damages. Judgment on directed verdict. The ■plaintiff appeals.</p>

— Hon. Robert Sloan, Judge. Action in equity to enjoin the issuance of certain bonds, and to declare void a certain contract entered into by the defendant city for the construction of a system of waterworks. From the order of the district court granting an injunction as prayed, the defendant appeals.

<p>1 Foreclosure of Mortgage:' consideration in deed: oral testimony to show same; It is competent to show by oral testimony that the grantee in a deed assumed and agreed to pay a mortgage as part of the consideration for the deed.</p> <p>2 Assumption of Mortgage: liability of purchaser in separate suit. Commencement of suit against the principal debtor to foreclose a mortgage is not an election and does not estop the mortgagee from recovering personal judgment against a purchaser of the mortgaged property who assumes and agrees to pay the mortgage debt as a part of the purchase price.</p> <p>8 Opinion as to Value: not actionable as false representation. An expression of opinion as to the value of property will not ordinarily sustain an action for false representation.</p>

— Hon. N.> W. Mact, Judge. Action for forcible entry and detainer. Trial to the court, and judgment for the defendants. The plaintiff appeals.

— Hon. W. R. Green, Judge. Habeas corpus proceedings to settle a controversy regarding the custody of Mabel McDonald. Mae Chapman is her mother, but defendants have had the child since she was but a few days old. The trial court awarded her to the defendants, and plaintiff appeals.

— Hon. Franklin C. Platt, Judge. Action iu equity to subject certain property of Laura A. Jordan to the satisfaction of a judgment against her husband, Henry Jordan. Decree for plaintiff, from which defendants appeal.

— Hon. F. 0. Platt, Judge. Mandamus to compel the defendant, as secretary of a school township, to certify certain matters to the board of supervisors of the county. Judgment for the plaintiff, from which the defendant appeals.

— Hon. S. M. Elwood, Judge. Action at law to recover for the maintenance and support of an infant child of Joseph LeGore, deceased. Defendant jdeaded modification of contract and the statute of limitations. There was a trial to a jury, resulting in a' verdict for defendant, and plaintiff appeals.

— Hon. O. A. Bishop, Judge. Action to recover on a beneficiary certificate in the Grand Lodge of Iowa Workmen of the State of Iowa, issued to Marvin Walts, deceased. Defendant Maggie Walts is the widow of deceased and Alvin Walts their son. Plaintiffs are children of deceased by a former marriage.

<p>1 Action to Enjoin Construction of Sewer: DISTRICTS: LEVY OR tax. Code, sections 794 and 1005 authorize a city council to provide by ordinance that the entire city shall constitute one sewer district, and to levy a special tax upon the district for the construction of a sewer system.</p> <p>2 Levy of Tax: constitutional limitation : debt. The levy of a special tax for the construction of a sewer system, to be paid in installments, where the only obligation of the city .is to levy, collect and pay over the tax, does not create a debt of the city within the meaning of section 3, article 11 of the constitution.</p> <p>3 Chapter 29: acts 28th general assembly not applicable, Chapter 29 of the Acts of the 28th General Assembly has no application to the levy of taxes for the construction of a sewerage system within a sewerage district, hut is limited to cases of special assessments on abutting property.</p> <p>4 Levy of Tax for Whole District: sustained. Where a city has constructed lateral sewers at the' expense of abutting property and trunk sewers at its own cost, the subsequent creation of a sewerage district and levy of a tax upon the district for the construction of other sewers, is not an arbitrary, oppressive and unreasonable exercise of power by the city.</p> <p>5 Evidence: collusion in letting contract. Evidence considered, and charges of collusion and bad faith between the contractor and the officers of the city in making the contract are not sustained.</p>

<p>Appeal from Dicltinson District Court. — Hon. A. D. Bailie, Judge.</p> <p>Injunction proceedings to restrain defendant, Sherman, from maintaining a nuisance by the sale of intoxicating liquors in a building in what is known as the town of Terrill.. Defendant denied to at he was'maintaining a nuisance, and pleaded compliance with the terms of the mulct law. The Davenport Malting Company intervened, claiming to have purchased the building wherein the nuisance is alleged to have existed after the commencement of this action, without notice that Sherman was not complying with the provisions of the mulct law, and averred that Sherman was not selling liquor in the building contrary to law. Plaintiff denied that Sherman had complied with the provisions of the mulct law. On these issues the case was tried to the court, resulting in a decree for plaintiff, and defendant and intervener appeal.</p>

— Hon. W. N. Trieciider, Judge. Action in equity to restrain enforcement of a city ordinance. The district court entered a decree as prayed, and defendant appeals.

— Hon. John T. Scott, Judge. Action to quiet title. Plaintiff as widow of Wensel Podaril, claims to be possessed of a fee-simple title to certain premises under the will of her deceased husband; and defendants, as heirs of the deceased, claim to have an interest in the same premises. The trial court found plaintiff to be the owner in fee of the premises, and quieted her title as against defendants. From this decree, defendants appeal.

<p>Appeal from Allamaltee District Court. — Hon. L. E7 Fellows, Judge.</p> <p>Action to quiet title to three and one-half lots in Post-ville. Decree was entered declaring plaintiff and each of the defendants owner of an undivided one-fourth thereof. The plaintiff appeals.</p>

<p>Appeal from Page District Court. — Hon. O. D. Wheeler, Judge.</p> <p>Action on two promissory, notes, and to establish and foreclose a lien on a policy of insurance on the life of Phineas H. Watson, in which defendant was named as beneficiary; and by her assigned to plaintiff as collateral security for the payment of the two notes. Defendant pleaded the illegality of the assignment — -First, because it was not stamped as 'required by the acts of congress and, second, because such assignments are contrary to public policy, and void. The trial court found for plaintiff, and the defendant appeals.</p>

<p>Appeal from Linn District Court. — Hon. Wm. G. Thompson, Judge.</p> <p>The case is stated in the opinion.</p>

Appeal -from Marshall District Court — Hon. Obed Oaswell, Judge. The railroad company filed with the sheriff of Marshall county, December 7,1899, its application for the condemnation of a strip of ground 100 feet wide for a right of way over the land of plaintiffs. Commissioners were appointed, and duly assessed the damages. The owners appealed to the district court, and on April 16, 1900, a transcript was filed with the clerk.

<p>Appeal from Folk District Court. — Hon. O. P. Holmes, J uclge.</p> <p>Suit in equity to foreclose a mortgage. Defendants Munzenmaier claim to be the owners of the patent title to the property, while the administrator and heirs of K. P. Young, deceased, claim under a tax deed issued to one Ourtis in the year 1892, based on a tax sale in the year 1887 for the taxes of the year 1886. The real controversy is between the holders of the tax' title, on the one side, and the mortgagee and holder of the patent title, on the other. As. against the tax title, the holders of the patent .title pleaded the five-year statute of limitations and laches. The administrator and heirs of Young responded by saying that neither Munzenmaier nor the mortgagee had title at the time of the tax sale, neither have they acquired one since, nor have they paid the taxes on the property, as required by section 1445 of the Code. On these issues a trial was had, resulting in a decree of foreclosure of the mortgage as prayed, and. dismissing the cross-petition filed by the Young heirs. The administrator and heirs appeal.</p>

— Hon. Obed. Caswell, Judge. From a judgment refusing the allowance of a claim against the estate of Ansel Wright, deceased, the plaintiff appeals.

<p>Appeal from Page District Court. — Hon. O. D. Wheeler, Judge.</p> <p>Action to enforce landlord’s lien against a purchaser of grain from the tenant of plaintiff. Judgment for defendant, and plaintiff appeals.</p>

— Hon. P. B. Wolee, Judge. Action in equity to enjoin the maintenance of a certain ditch constructed by the plaintiff, and for damages. The district court found for the defendants, and plaintiff appeals.

<p>1 Action for Damages: negligence: evidence of: withdrawal from jury. Where the issues involve the negligence of defendant in several distinct matters and there is evidence tending to establish all, it is error to withdraw from the jury all questions of negligence save one.</p> <p>2 Reasonable Care; common law rule: abrogation of. The common law rule that care, to be reasonable, must be proportionate to the danger to be avoided, is not abrogated by a statute which provides that the whistle of the engine shall be sounded ‘1 at least sixty rods before the crossing is reached, ’ ’ and it is error to instruct in effect that if the statute is complied with the railway company has discharged its full duty.</p> <p>3 Same: ALLEGATION OF PETITIONS : APPLICATION OF COMMON LAW RULE. the petition alleges that the- whistle was not sounded as required by statute, and that sufficient warning was not given to enable plaintiff to avoid the accident, the allegations are broad enough to permit the application of the common law rule that care to be reasonable must be proportionate to the danger to be avoided.</p> <p>4 Negligence: rate of speed: A high rate of speed in the opera-of a train does not of itself constitute negligence, but it may become such at places of extraordinary danger and the failure of the court to so instruct is error.</p> <p>5 Sounding the Whistle: question for the jury: Where there is conflict in the evidence, the point at which the whistle was sounded with respect to a crossing, is for the jury to determine.</p> <p>G Contributory Negligence: instruction regarding. Negligence of plaintiff which does not in some manner or degree contribute to the injury of which he complains, will not defeat his recovery ; and an instruction on this subject which omits that feature of the rule is erroneous.</p> <p>7 Instructions: how written. Instructions partly typewritten and partly written with pen or pencil are not objectionable on that account.</p>

<p>1 Partition: -lien holder: necessary party. In a partition proceeding, the holder of a judgment lien on an undivided interest in the property is a necessary party to the proceeding, and unless served with notice his lien is not extinguished by judicial sale, though regular and fair in all other respects.</p>

<p>1 Condemnation: estoppel by deed. A grantor is estopped by his deed from claiming that he had no interest in the land at the time of his conveyance.</p> <p>2 Deed; parol testimony: admissible when. Where there is no uncertainty or ambigaity in a deed, parol evidence is not admissible to show the intent of the parties.</p> <p>3 Same. Parol testimony is not admissible to show that a roadbed is a fixture, and does not pass by deed, ip the-absence of an express reservation in the deed.</p> <p>4 Same: when and what property passes by a deed. Where a deed refers to a certain contract as the consideration therefor, bnt no reference to the contract is made in the granting clause, the deed conveys the property as it stood at the date of its execution.</p> <p>5 Damages: when to be determined. Upon the condemnation of laud for, railroad purposes, damages should be allowed as of the time of entry by the company upon the land.</p>

— Hon. W. G. Thompson, Judge. Action to recover for wood and potatoes said to have been converted by the defendant, and for money loaned him by James Kinkead, plaintiff’s intestate. Trial to a jury. Ycrdict and judgment for defendant, and plaintiff appeals.

<p>Appeal from Fremont District Court. — Hon. A. B. Thornell, Judge.</p> <p>Action for personal injuries. Verdict and judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from, Pottawattamie District Court. — Hon. N. W. Macy, Judge.</p> <p>Action for damages. From judgment dismissing his petition, the plaintiff appeals.—</p>

<p>Appeal from Blackhawk District Gourt. — Hon. A. S. Blair, Judge.</p> <p>Action to recover damages for personal injuries. Verdict and judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Olar Ice District Gourt. — Hon. W. H. Tedford, Judge.</p> <p>Action in equity to cancel a mortgage. Decree for plaintiff and defendants ajupeal.</p>

— Hon. F. R. Gay-nor, Judge. The appellee is a practitioner of dental surgery, and resides in the city of Des Moines, Polk county, where he maintains an office for the practice of his profession. It appears that he is a regularly licensed practitioner, as provided for by the statute of this state relating to that subject, and that his license was of record in both Polk and Cherokee counties, in which latter county the appellant city is situated.

<p>1 Will: construction on? ‘‘‘or their heirs.” The will provided that tlie property oí the testator should be divided “between my children or their heirs as the law directs’ ’. Held, the words “or their heirs” must be regarded as words of purchase rather than of limitation, and the intention of the testator to have been that the heirs of the children take by substitution rather than by descent.</p> <p>2 Same: what estate in lands subject to execution. Code, section 3801 and paragraph 8 of section 48 contemplate a present tangible right to, or interest in the land, so where ,the uncertainty of a contingent remainder involves solely the ^ of who shall take the real estate, it is not, before ves^-ng, the subject of levy and sale under execution.</p>

<p>1 Personal Injury: liability op master or servant: question por jury. To determine a liability as between master and servant, the proper test is whether the employe represents the master as to the result of the work or only the means employed, and is a question for the jury.</p> <p>2 Same; violation op ordinance : admissibility op. . In an action recover for a personal injury caused by an obstruction placed in the street in violation of a city ordinance, it is error to refuse to admit the ordinance in evidence.</p> <p>3 Same: negligence: question for jury. Whether the scattering of dirt and stone along the street of a city was reasonably incident to the work being done, or the result of an indifferent and negligent manner of doing it, is a question for the jury.</p> <p>4 Evidence; ordinary oare : question por jury: Where a bicycle rider struck a stone in the street and lost his balance and before he regained it, struck another stone and was thrown and killed, the question whether in the exercise of ordinary care he should have seen and avoided the latter stone, was for the jury to decide.</p> <p>5 Same; negligence: ' speed. Deceased was not negligent in riding along the street, though he knew stones were scattered therein; nor, as a matter of law, was he negligent in riding at the rate of seven miles an hour.</p>

— Hon. 0. P. Holmes, Judge. Action to recover the value of a registered mail package which the defendant, as one of the agencies of the government, for carriage of its mails, undertook to carry from Kansas City, Mo., to Kinsley, Kan., and which it is claimed was destroyed by fire in a wreck at 'Volland, Kan., caused by the negligence of defendant’s employes.

— Hon. W. N. Treichler, Judge. The plaintiff having recovered judgment in the district court upon a policy or certificate of insurance upon the life of her husband, the defendant appeals.

<p>Certiorari to Harrison District Court. — Hon. N. W Macy, Judge.</p>

<p>1 Will: PROBATE': DECLARATIONS OF PROPONENT: EVIDENCE. Where the proponent of a will is the principal beneficiary, and the will is contested on the ground of incompetency and undue influence, it is error to exclude evidence that proponent on a former occasion, when the testatrix had made a disposition of her property by contract and will, had said that she was mentally incompetent, easily persuaded, and had applied to his counsel to institute proceeding to invalidate the former disposition of her property on the ground of mental incapacity and undue influence.</p> <p>2 Prejudicial Error. Where material and competent evidence is ex-eluded, prejudice will be presumed in the absence of a showing in the record of something which serves to cure the error.</p>

Appeal frovi lama District Court. — Hon. G. W. Burn-ham, Judge. Certain intoxicating liquors in the possession of the defendant Coffin as agent for the American Express Company at Tama were seized, a.nd, by the judgment of a justice of the peace, were condemned, and their destruction ordered, on the ground that they were being kept by defendants to be sold in violation of law.

— Hon. W. B. Quarton. Judge. This is an action in equity to quiet title to a tract of some 290 acres of land in the S. i of section 30, township 97, range 34, in Palo Alto county. Plaintiff is the admitted owner of lots two and three, forming a part of said tract, and containing about 99 acres.

— Hon. W.E. Bran-nan, Judge. This is an action in equity to enforce the specific performance of a contract to convey lands and to confirm and quiet the title to such lands in the plaintiffs. There was a decree in favor of the plaintiffs, granting the relief prayed for. Defendants appeal.

<p>1 Larceny: evidence corroborating accomplice. Evidence 'considered and held sufficient to corroborate an accomplice and support a verdict of guilty on a prosecution for larceny.</p> <p>3 Evidence of Value: verdict supported. Evidence of the value of the property stolen held to supx>ort the verdict.</p> <p>3 Evidence: cumulative: new trial. Newly discovered evidence, which is merely cumulative, will not suxiport a motion for a new trial.</p>

— Ho.v. Henrt Bank, Jr., Judge. This is au equitable action to quiet title. The land involved in the controversy is the S. E. i of the N. E. \ of section 10, township 67, range 5, Lee county, Iowa. The petition alleges ownership in fee in the plaintiff, through a chain of title descending from Phoebe and John Shefler.' The land was formerly owned by James Bullard, who conveyed the same to Phoebe Shefler in 1874.

— Hon. H. Bank, Jr., Judge. • Deeendant was indicted for murder in the first degree, alleged to bave been committed by killing one W. A. Dundey by shooting him with a revolver. On the first trial the jury disagreed. On the second trial, defendant was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for six years and six months, from which sentence he appeals.

— Hon. Robert Sloan, Judge. Action to subject property to the payment of a judgment. The facts are disclosed in the opinion. Both parties appeal, that of defendant being first perfected.

<p>Appeal from Hancock District Oourt. — Hon. C. H. Kelley, Judge.</p> <p>Indictment for larceny from the person. Defendant appeals.</p>

— Hon. O. H. Kelley, Judge. Defendant, with others, was indicted for larceny from the person, under Code, section 4837, which provides that-for such offense the sentence shall be imprisonment in the penitentiary not exceeding fifteen years. Defendant was tried separately, and convicted, and was sentenced to ten years’ imprisonment in the penitentiary at hard labor, and from this sentence he appeals.

— Hon. O. H. Kelly, Judge. Defendant was indicted, tried, and convicted of the crime of rape, committed upon his stepdaughter, who, it is alleged, was under the age of consent, and he appeals to this court.

<p>Appeal from Wapello District Court. — Hon. Bobert Sloan, • Judge.</p> <p>Deeendant, with seven others, was indicted for the crime of an assault with intent to murder one G. W. Houston. On a separate trial, he was convicted of ah assault with intent to inflict a great bodily injury, and from the judgment appeals.</p>

<p>Action to Quiet Title: transaction with person singe deceased: evidence. Where a wife wills to her husband all of her estate, he thereby'becomes a devisee of the property to which she was entitled as an heir of her deceased mother, and other heirs of the wife’s mother are precluded under section 4604, Oode, from testifying against him to a parol agreement with the wife, releasing her interest in her mother’s estate.</p>

District Gourt. — Hon. James D. Smyth, Judge. The plaintiff sued the defendant and another separately for a joint tort. The other case was first tried, and a judgment rendered for the plaintiff, which was voluntarily paid by the defendant therein to the clerk of the district court where rendered. The clerk had received no authority from the plaintiff to accept the payment of the judgment and costs for him. Nor did the plaintiff accept same from the clerk.

— Hon. W. H. Tedeord, Judge. These actions are both in equity, and were brought to recover dividends paid on two certificates of stock in a mining company now known as the “Crestón Gold Mining Company.” In the action first entitled the plaintiff claims to be the owner of a one-half interest in the certificate for one share of stock, and concedes that Miss Camp owns the remaining interest, while Miss Camp claims to own the entire share of stock by purchase from the plaintiff.

A writ was issued by one of the judges of this-court, and the case is now submitted on an abstract of record showing the return of the defendants to the writ.—

— Hon. James D. Smyth, Judge. Action for wrongful arrest and false imprisonment. - Trial to a jury, verdict and judgment for defendant, and plaintiff appeals.

— Hon. A. 8. Blair, Judge. Air information in six counts was filed before a justice of the peace in Black Hawk county, charging the defendant with violation of the game law in killing quail during the closed season.

— Hon. W. H. Tedford, Judge. The plaintiffs are receivers of an association organized in Missouri under the provisions of an act authorizing building and loan associations.

— Hon. A. R. Dewey, Judge. Action on a school order by the assignee thereof. A demurrer to. plaintiff’s, petition 'was sustained, and judgment rendered against it for costs, from which it appeals.

— Hon. N. W. Macy, Judge. There is no controversy as to the facts, and they may be stated as follows: Prior to February, 5, 1900, J. E. Jennings, a retaiL grocer in Missouri Valley, Iowa, had executed and delivered a chattel mortgage covering his stock of goods and store fixtures to the Valley Bank, of Missouri Valley, to secure an indebtedness due from him to said bank.

<p>Appeal from Buchanan District Court. — Hon. A. F. Blair5 Judge.</p> <p>The defendant in this case, N. L. Bates, filed an information, under oath, before a justice of the peace, charging plaintiff, Henry Necker, with the larceny of a harness. He also filed an affidavit for a search warrant, setting forth, in substance, a theft of his harness, and that he had good reason to believe the same was in possesson of Necker, and secreted in or about the premises where he resided. Necker was arrested, and upon being brought before the justice a continuance of the proceedings ' was had,'to enable him to procure counsel and prepare'for trial.’ Under the search warrant which was issued, the officer to whom the same was delivered seized a harness found in a barn on the farm where Necker resided with his parents; such harness being pointed out by Bates as his property, for the seizure of which the search warrant was issued. Before the day fixed for trial, Bates appeared before the justice and made payment of the costs, and requested that the prosecution df Necker be dropped. It does not appear that Necker was informed of this, and on the day fixed for trial he appeared with his attorney before the justice. There being no one present to prosecute, the criminal charge against him was dismissed, and he was discharged. In the meantime the harness taken under the search -warrant had been turned over to Bates, who thereafter continued in the possession of the same. This action was brought by plaintiff to recover damages as for malicious prosecution. There was a jury trial, and verdict and judgment in favor of plaintiff.</p>

<p>Appeal from Keokuk District Court. — Hon. A. R. Dewet, Judge.</p> <p>The opinion states the case.</p>

— Hon. E. F. Miller, Judge. Action at law to recover damages for personal injuries received by plaintiff while operating an ice-loading plant at the town of Nashville, in Lee county. Trial to a jury, verdict and judgment for plaintiff, and defendants appeal.

<p>1 Action for Damages: defective sidewalk: special finding: INstruction. In an action against the city for damages on account of a defective sidewalk, tlie court submitted by special interrogatory the question of actual notice by the city of the defect, which was answered affirmatively. The city requested an instruction covering the same point, which was given. There was evidence tending to show constructive notice. Held, the city could not complain that the interrogatory was without support in the evidence.</p> <p>2 Discovery of Defect: condition of walk: instruction. It is proper in such an action to instruct the jury that in determining the negligence of the city in keeping the walk in repair, it should take into cons deration all matters Shown by the evidence relating to the condition of the walk in the vicinity of the defect, as bearing on the duty of the city to discover the defect and make the repair -vs hether alleged in the petition or not.</p>

— Hon. W. G. Clements, Judge. Dependant was indicted with others for assaulting and ravishing a female over the age oE consent. They were tried jointly, and a conviction was reversed in this court. See 112 Iowa, 458. This defendant alone was then tried, and convicted of assault with intent to commit rape, and from sentence therefor he now appeals.

— Hon. P. B. Wolee, Judge. One Petersen having been convicted of a felony in the district court of Olinton county, a judgment of imprisonment in the penitentiary was entered agaiist him by said court, and there was taxed to him by the clerk of said court the costs of the trial, amounting to $478. It is conceded that the record entry of judgment contained no reference to the matter of costs.

— 'Hon. H. M. Towner, Judge. Action at law for breach of an implied warranty and fraud in the sale of a mare. Trial to a jury. Directed verdict for defendant, and plaintiff appeals.

— Hon. F. R. Gaynor, Judge. ' Action to recover from the county of O’Brien the amount of certain taxes alleged to have been mistakenly paid by the plaintiff. A demurrer to the petition having been sustained, the plaintiff appeals.

— Hon. J. R. Whitaker, Judge.' Action on a promissory note. Trial to jury, and verdict and judgment for the defendants. The plaintiffs-appeal.

<p>1 Breach of Promise of Marriage: damages: basis of recovery. It is not necessary in an action for breach of promise of marriage, that the exact value of defendant’s possessions be disclosed, as the same does not form the direct basis of a verdict for damages.</p> <p>2 Same: basis of recovery: instruction. An instruction which allows pecuniary circumstances of defendant to be considered, but bases recovery on injury to feelings and affections, and loss of marriage and station in life, is sufficient in the absence of a request for a more specific statement of the law.</p> <p>•Same: bad character of plaintiff: how pleaded. Plaintiff’s</p> <p>3 bad character is a circumstance tending to lessen the damages, -but it must be pleaded in mitigation under Code section 3593, to be available defense.</p> <p>’Same; damages: seduction: evidence of. In an action for</p> <p>4 breach of promise, seduction cannot be considered an element of damage unless specially pleaded, though evidence of same may be received as bearing on promise of marriage.</p> <p>5 Paragraphs 4 and 5 relate to the admissibility of evidence on rebuttal and the verdict of the jury.</p>

<p>Appeal from Marshall District Court. — Hon. G. W. Burn-ham, Judge.</p> <p>Plaintiee, as administratrix, brings action to restrain defendants from abandoning, and removing their property from certain premises, which defendants had, prior to the bringing of the action, taken possession of as tenants under a lease from one Brown, assignee, to plaintiff’s intestate. Decree for plaintiff, from which defendants appeal.</p>

<p>Appeal from PolJc District Oourt. — Hon. O. A. Bishop, Judge.”</p> <p>Action at law upon a fire insurance policy. Judgment for plaintiff, and defendant appeals.</p>

— HoN. A. R. Dewet, Judge. Appeal from, an order of the district court holding that certain statements of consent to the salé of intoxicating liquors in Keokuk county were insufficient. Defendants procured and filed the statements with the county auditor, and plaintiffs filed objections thereto.

— Hon. A. B. Dewey, Judge. This is an appeal from an order made by the trial court dismissing an appeal from justice’s court, and denying plaintiff’s motion to set aside this order of dismissal.

<p>Appeal from Madison District Court, — Hon. J. H. Apple-gate, Judge.</p> <p>Action on two sets of lost notes. Trial in equity. Judgment for plaintiff as to one set of notes, and for defendant as to the other. From the judgment so far as it is adverse to defendant, he appeals.</p>

<p>Appeal from Sioux District Oourt. — Hon. Wm. Hutchinson, Judge.</p> <p>Action for damages sustained from a defective abstract of title furnished by the defendant. Judgment for the plaintiff, and the'defendant appeals.</p>

— Hon. Gr. W. Wake-field, Judge. Action at law to recover damages for malicious attachment. Verdict and judgment for the plaintiff. The defendants appeal.

— -Hon. S. M.Weaver, Judge. On October 6, 1893, the city council of the defendant city duly adopted and passed an ordinance by which the grade of Eighth street, in said city, was fixed and… Held: and a resolution ordering said street to be Ailed and brought to grade regularly adopted. At the time of the adoption of such resolution, the work of Ailing the street had been practically completed, and immediately thereafter the remainder of the work was done.

<p>1 Personal Injury: sparks from an engine: negligence. The emission of particles of coal from a railway engine, not of unusual size or quantity, will not of itself warrant the inference of negligence either from improper management of the engine or lack of equipment.</p> <p>2 Same: assumption of risk. A section hand assumes the risk incident to escaping cinders from the ordinary operation of a passing engine.</p> <p>3 Evidence: exclusion of: expert testimony. Where a witness is permitted to answer a question which was formerly excluded, no prejudice arises from the former ruling. Expert testimony is to be confined to the facts as developed on the trial.</p> <p>4 Taxation of Costs: witness fees. ■ Yfhere material witnesses appear at the trial, without subpoena, whose evidence is not taken for the reason that the case was taken fom the jury, an allowance of, fees-for attendance was proper.</p>

<p>1 Personal Injury; operation op cars: '.negligence. The employes of a freight train, engaged in switching cars, are under no obligation to assume that persons not employed in switching are between the coupled cars; and where one is thus injured, whose presence was not known to or anticipated by the switchmen, the act of moving the cars, even violently, will not constitute negligence, proximate to the injury of the person thus situated.</p> <p>2 Same; contributory negligence. It is contributory negligence for one not engaged in the switching of freight cars and for an unauthorized purpose, to go between the cars being switched, and no recovery can be had for an injury thus received.</p>

<p>1 ¡Personal Injury: damages: verdict. The verdict of a jury for damages for a personal injury will not he disturbed unless so flagrant and excessive as to clearly indicate prejudice and passion.</p> <p>2 •Competency of Certain Testimony. Testimony tending to show the force of the collision by which the injury was produced is competent.</p> <p>S .Presumption of Negligence: due care: jury question. In an action for a personal injury received in a railway accident, and a mima facie case of negligence of the company is made, the questiou of due care on the part of the company sufficient to overcome the presumption of negligence is one of fact for the jury, and under the evidence in the case the court did not err in submitting the issue to the jury.</p> <p>4, '•Duty of Carriers of Passengers: instructions. An instruction “that common carriers of persons are required to do all that human care, vigilance and foresight can reasonably do, in view of the character and mode of conveyance adopted, to prevent accident to passengers’ ’ is a correct statement of the law.</p>

— Hon. A. H Bailie, Judge. Indictment for murder. Yerdici of guilty, with death' penalty, and from judgment entered thereon defendants, appeal.

<p>1 Murder: peremptory challenges: ' waiver of right. In a trial for murder the defendant is entitled to ten peremptory challenges, and the jury should not be sworn until the challenges are either waived or exercised and the jury accepted, as provided by Code section 5369.</p> <p>3 Same. Where “the defendant waives one more challenge” he is entitled to exercise the remaining challenges and it is error for the court to refuse the right.</p> <p>3 Right of Challenge: denial: prejudice. The right to peremchallenge a jury is a statutory right, and if denied, no reason for the exercise of the right need be given, and prejudice is conclusively presumed.</p> <p>4 Quarrelsome Disposition of Defendant; admissibility of evidence. a prosecution for murder, where there is a claim of self-defense, evidence that the defendant at the time of the affray had lost his money gambling, and at such times was a violent and quarrelsome man, was competent, and should not have been excluded.</p> <p>5 Exclusion of Evidence: second offer. Where evidence is excluded as inadmissible under any circumstances, though offered out of its order, it need not be offered again to authorize an exception to the ruling.</p> <p>6 Evidence; res gestae. Evidence of deceased’s frame of mind and his acts shortly before the affray is admissible as part of the res gestae.</p> <p>7 Instruction; corroboration of defendant. An instruction which advises the jury that they ‘ ‘ are not bound to believe the testimony of defendant any further than it may be corroborated by other credible evidence’ ’ is erroneous, as treating defendant as a witness already impeached.</p> <p>8 Instruction Regarding Conviction and Acquittal. An instruction which suggests that if the jury make a mistake in finding a verdict of guilty it can be corrected, while if they acquit there is no remedy, is prejudicial error.</p> <p>.9 Passion and Heat of Blood Affecting Degree of Crime. The pres-en.ce of passion and heat of blood will not reduce the crime oi murder to manslaughter, unless provoked, in which case passion presupposes the absence of malice.</p>

— Hon. F. T. Hughes,. Judge. The Fanning Ball-Bearing Chain Company had been organized for the purpose of manufacturing bicycle chains so constructed that the links were fastened together by balls or cylinders, revolving as they passed over the sprocket wheel, thereby lessening the friction, and had executed two promissory notes to plaintiff.

— Hon. H. M. Eemley, Judge. - The city of Cedar Eapids is a special charter city. The plaintiff is the owner of a lot in said city cornering on Ninth avenue and Eighth street, and known as lot five, block thirty-two, Carpenter’s Fourth addition.

<p>1 Sale of Homestead: intention to reinvest : stipulation regard - ing. A stipulation that a tract of land was purchased v itb the proceeds of a former homestead and that forty acres of the latter tract is exempt, amounts to an ■ admission that the first farm was sold with the intention of reinvesting in another as-a homestead and that the same was purchased from the proceeds of the former, and the intention to so reinvest the proceeds cannot thereafter be questioned.</p> <p>2 Change of Homestead: section 2981 of tee code construed. Notwithstanding the fact that section 2981 of the Code contains-the words “or may vacate it” in lieu of the words ‘‘or may change it entirely” in'the corresponding sections of the Cede-of 1873, the owners of a homestead may, sell i-t and acquire an entirely new -one by a reinvestment of the proceeds.</p> <p>3 Bams: exemption of proceses : new title in wipe. The uroceeds of the homestead are exempt, if reinvested in another within a reasonable time, and it is not objectionable that the new title is taken in the name of the wife.</p>

<p>1 .Action on Employe’s Bond: admission of evtdence. Where it is not shown to Be the duty of an officer of a corporation to make certain reports, it is not error to refuse to permit a witness to state whether he knew such officer had failed to make a report.</p> <p>2 ■Same: Statements of one director of a corporation to another regarding the “habits” of an employe are properly excluded as immaterial, where the kind of habits referred to are not disclosed.</p> <p>3 ■Representation of Fact Equivalent of Warranty: FAILURE of; allegation of bad intent : evidence. A failure of the warranty of a material fact, or of one made material by the terms of representations of a 'contract wlieu equivalent to a warranty, if acted upon in issuing a cotí tract of insurance, will defeat recovery, and if this defease is sufficient it is immaterial that bad intent is also alleged, but the party alleging bad intent cannot complain of the submission to the jury of the issue thus raised. Evidence considered and held not to establish a warranty.</p> <p>4 ‘(Liability of Surety Company: not affected by statement of president of loan assooiation. Where the certificate of the president of a building and loan assooiation to a surety company stating that the accounts of an employe were correct in every respect, purported to be simply his statement made to the best of his knowledge and belief, the fact that at the time the auditing committee knew an error existed in the employe’s .accounts did not relieve the surety company from liability.</p> <p>6 Instructions: burden OF PROOF: separate defenses. An in-upon the burden of proof which requires the defendant to establish every defense is technically erroneous, but. when followed by a separate statement of each defense with proper instructions, as to burden of proof, is harmless.</p> <p>6 Voluntary Conveyance Not a Settlement of Defalcation. A voluntary conveyance of property to the loan association by its secretary, who had misappropriated its funds, with the request that it be applied to the first items of indebtedness, is not a settlement relieving the surety company from liability on its-bond.</p> <p>7 Notice of Defalcation: whether given in compliance with bond:. jury question : evidence. The bond of the surety company' provided that it should be notified ‘ ‘immediately’ ’ upon a discovery of any defalcation. The question of timely notice was-properly submitted to the jury, as it cannot be said as a matter of law that a delay of six or eight days in notifying the surety company ought not under the circumstances to be held a violation of the condition requiring immediate notice.</p> <p>8 Same: waiver of notice. The surety company sent an inspector -to investigate the loss, who stated that the company would require the books to be checked by an expert, and at his suggestion one was employed; held, that the company was charged with knowledge of what might be ascertained so as to constitute a waiver of notice and that this question was properly submitted to the jury, notwithstanding the fact the contract-prohibited waiver by an inspector.</p>

— Hon. A. S'Blair, Judge. Action in equity to recover the purchase price of a stationary steam engine sold to the appellant, and to establish a lien thereon. Counterclaim for breach of warranty. Judgment for the cross-petitioner, and the transit company appeals.

— Hon. J. R. Whitaker, Judge. Action in equity to restrain the defendant city from opening and improving a street upon land claimed by the plaintiff. The relief asked was denied by the district eourt, and plaintiff appeals.

<p>1 Personal Injury: EVIDENCE. NEGLIGENCE: ASSUMPTION OP RISK. Evidence in the case considered and held: That the questions of negligence, contributory negligence and assumption of risk were properly submitted to the jury.</p> <p>Misconduct of Juror: new trial. The fact that a juror during</p> <p>2 the trial took a dose of quinine and whiskey for a severe cold would not justify setting the verdict aside’</p> <p>.Absence of Judge: extrinsic matter in argument: new trial.</p> <p>3 In civil cases absence from the courtroom of the judge during argument will be presumed to be with the consent of parties, where there is no showing to the contrary, and is not ground for reversal; nor will the denial of a motion for a new trial on the ground that counsel in argument referred to extrinsic matter be disturbed, where tb,ere was no effort to correct the error at the time.</p>