Volume 120 — Iowa Reports

— lioN. J. F. Oliver, Judge. Action for tlie conversion of the name and good will of plaintiff. The jury allowed $355 damages, less a counter, claim of $105 for rent, and judgment was rendered against defendant for $250. 'Ihe defendant appeals.

— HoN. A. B. ThoRNeul, Judge. The charge against defendant was that, with intent to commit larceny, be broke and entered a. certain warehouse in the town of Avoca, which was used for the storage of beer. Verdict for the state, and defendant appeals from the sentence imposed.

<p>Appeal from Harrison District Court. — Hon. W. B. GREENE, Judge.</p> <p>The plaintiffs allege ownership of thirty-three and one-third acres of land on the east side of the lands occupied by B. L. Golden, specifically described in a plat forming a part of the decree in Smith v. Miller, reported ,in 105 Iowa, 688, that the same is immediately east of the middle thread of the abandoned bed of the Missouri river; and they ask that title thereto and to other lands east of said middle thread be quieted in them. The defendant Elizabeth Thomas answered by averring that she acquired the tract represented on said plat from Golden, and is in possession thereof; also that plaintiffs are estopped from claiming any interest therein. The court found the land-to be that involved in the case mentioned, and that on the 19th day of November, 1894, Golden conveyed to S. H. Cochran and Jesse T. Davis, under whom plaintiffs claim the east thirty-three and one-third acres, and quieted title thereto and to other lands now occupied by Thomas in Iowa in plaintiffs. Both parties appeal, the appeal of plaintiffs being first perfected.</p>

<p>Appeal from Dallas District Oourt. — Host. J. H. Apple-gate; Judge.</p> <p>Suit in equity for the construction of the will of Martin Rowe, deceased, and to authorize plaintiff to sell certain land of which testator died seised. Defendant May Irene Rowe appeared and answered, pleading that the will of Martin Rowe was revoked by the birth of a child after the execution of the will, and before the testator’s death. The trial court overruled a demurrer to this count of the anwser, and the- plaintiff appeals.—</p>

<p>Appeal from Des Moines District Court.- — Hon. W. S. WithRow, Judge.</p> <p>The opinion states the case.</p>

— HoN. Z. A. Chubch, Judge. The defendant was tried and convicted of disobeying a quarantine alleged to have been established by the local board of health. From a judgment on the verdict, he appeals.

<p>1 Specific Performance: evidence: credibility oe witness. Where the plaintiff attaches interrogatories to his petition which defendant answers, and the same are read in evidence by him, he thereby vouches fox the credibility of such -witness.</p> <p>2 Agency: burden oe proof. Where the plaintiff relies on a letter claimed to have been written by defendant as his authority to make a contract for the sale of her land, and the only evidence of its genuineness is the testimony of witnesses that they are accustomed to comparing signatures and that the handwriting on the envelope containing the letter is the same as the signature of defendant affixed to other instruments, and where defendant denies having written the letter or having knowledge thereof, there is a failure to sustain the burden of proof cast upon the plaintiff to establish his agency.</p> <p>3 Proof of Letter. The fact that defendant addressed an envelope is not sufficient proof that she wrote or had a knowledge of the contents of the letter contained therein. Especially is this true where defendant denies having written the letter.</p>

— HoN. W. H. MoHenRY, Judge. DeeeNdaNT was indicted, tried, and convicted of the crime of breaking and entering, and from the judgment imposed he appeals

— HoN. G. W. Burnham, Judge. Controversy over certain lands. The causes were submitted together. The facts sufficiently appear in the opinion. The petitions were dismissed, and plaintiffs appeal.

CebtioRARI proceedings, originally brought in this court by petition filed October 15, 1902. The plaintiff is a resident and citizen of Benton county, and the defendant is one of the judges of the Seventeenth Judicial District, which includes Benton county. A writ was issued in accordance with the prayer of the petition, to which writ a return has been made as 'required by law.

<p>1 Accounting: RECEIVERS: evidence. In an action for an accounting for lumber sold by a receiver, the evidence showed that the estimate of the material received by him was inaccurate, but the total amount realized from the sales and accounted for by the receiver nearly equaled the value as shown by the receiver’s invoice, so that an objection that the receiver had not accounted for the property coming into his hands could not be sustained.</p> <p>2 Receivers: exercise oe powers. A receiver is required to use the care, skill and prudence in the sale and management of property entrusted to him that a man of ordinary skill and prudence would exercise with his own property under like circumstances. He is not liable for errors in judgment, an insurer of the property, or guarantor of particular results.</p> <p>3 Same: Where a receiver appointed to sell lumber purchases from other dealers to fill his orders, paying cash from the trust fund, and immediately reimburses that fund by a sale of the same, so that no loss is sustained, those interested in the trust cannot complain, though the receiver had no express authority so to do.</p>

<p>Appeal from Jefferson District Court. — Hon. M. A. Roberts, Judge.</p> <p>ActioN on account and also for loss of a horse and injury to another alleged to have been caused by the negligent driving of defendants’ employe. The answer admitted the account, denied liability for damages to the team, and, by way of counterclaim, pleaded an account against the plaintiff, which was also admitted. Verdict and judgment for difference in accounts, but no allowance for damage to team. The plaintiff appeals.</p>

.Appeal from Adams District Court. — HoN. K. L. PaRrish, Judge. AotioN by plaintiff, as recorder oí defendant county, to recover compensation for temporary assistance rendered necessary in the discharge of the duties of his office by the' pressure of business during the years 1898, 1899 and 1900. Trial to the court. Judgment for plaintiff for the amount claimed, $53d.25, from which defendant appeals.

— Hon. W. F. BbaNNáN AND Hon. P. B. Wolee, Judges. Suit in equity to enjoin the execution of a treasurer’s deed, pursuant to a tax sale of plaintiff’s homestead for a sum, including taxes on personal property. A temporary writ of injunction was issued without notice. At the hearing, a demurrer to the petition was sustained, but the court fixed a time within which plaintiff might redeem, and continued the temporary writ.

<p>Appeal from Wapello District Court. — HoN. M. A. Kobebts, Judge.</p> <p>Suit in equity for the partition of real estate. From a decree finding that a conveyance of land from a common ancestor to defendant Samuel Newell was an advancement, he (Newell) appeals.</p>

<p>Vendor and Vendee: easement in STREET: REPRESENTATIONS or vendor: estoppel. Where a grantor sells and conveys lots describing them by metes and' bounds, also by reference to the same as designated on a certain plat and represents that the lots are adjacent to a street which he points out on the plat, the grantee tafees an easement in the street which the grantor is estopped to deny, even though the plat was not authorized by him, was not legal, and had never been recorded.</p>

— Hon. S. M. Weaves, J uclge. Action at law on a hail insurance policy. Trial tó a jury, and verdict and judgment for the plaintiff. The defendant appeals.

— Hob. Jas. W. Bol-len see, Judge. This is a proceeding for the construction of tbe will of Matthias Frahm, deceased. The guardian of Matthias H. T. Frahm, a minor, appeals from a decree finding that certain shares of stock, or the proceeds thereof, passed to legatees under the will. He contends that these shares of stock were not owned by the deceased at the time of his death, and that if, the deceased ever at any time owned them, the legacy has been adeemed.

<p>Partnership: firm note: release of retiring- member. In an action against a former member of a partnership on a note given by the firm, where the defendant pleaded and testified that in adjusting partnership affairs after the dissolution of the old firm, in consideration of defendant’s stepping cut of the business and turning it over to the new firm, the plaintiff agreed to look to the new firm for payment of the note, it was error to instruct that in order to find for the defendant it must appear that the agreement to release was made at or before the dissolution, as there was no such issue.</p>

— Hon. H. M. Towner, Judge. Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. J. R. Whitakek, Judge. Action in equity to ’-ecover on a promissory note, and asking the foreclosure of a bond for a deed. Defense, want of consideration for the note, and a cross petition asking that title be quieted in the defendants. There was a judgment for the defendants, from which the plaintiff appeals.

— HoN. A. S. Blair, Judge. AotioN in equity to subject an interest in certain real estate, alleged to have been the property of one Emma L. Gillett, to the payment of a claim against her estate. The lower court dismissed plaintiff’s petition, and plaintiff appeals.

<p>Taxation: eight of Redemption: premature deed. Code, section 1441, absolutely fixes tlie time for redemption of property sold for taxes to ninety days after completed service of notice, and this time is not extended by the prematu re issuance of a tax deed.</p>

<p>Appeal from, Bremer District Court. — HoN. Clieeord P. Smith, Judge.</p> <p>AotioN to recover damages for personal injuries received at a highway crossing as the result of a collision with defendant’s train. Verdict and judgment for plaintiff. Defendant appeals.</p>

Appeal -from. Story District Court. — HoN. S. M. WeaveR, Judge. Suit for an injunction to restrain the defendant from exercising jurisdiction over any portion of the plaintiff district, as originally constituted, and to restrain the officers of the district and of the county from certifying, levying and collecting taxes for said defendant district within the limits of territory originally included in the plaintiff district. Decree for defendants. Plaintiff appeals.

— HoN. A. W. Wile-INSON, Judge. Suit in equity for the partition of certain real estate theretofore owned by one W. G. Bissell, deceased. From the decree rendered by the trial court, both parties appeal; but as plaintiff first perfected her appeal, she will be called the “appellant.”

Appeal'from CBrien District Court. — HoN. Wk. Hutchin-SON, Judge. ActioN in equity asking the specific performance of a contract to convey land. Judgment for the plaintiff. The defendant appeals.

— HoN. F. 0. Platt, Judge. ActioN at law upon a policy of' fire insurance. Verdict and judgment for plaintiff, and defendant appeals.—

— Hon. R. L. Parrish, Judge. Plaintiffs are residents of Holt township, Taylor county, this state, and the defendants are the members of the board of supervisors of said county.

— Hon. A. B. Thornell, ' Judge. This is an appeal by S. B. Barnes, guardian of Lewis L. Gray, a minor, from tbe judgment of tbe district court made and entered -upon hearing of final report filed by said guardian. The opinion sufficiently states tbe facts.—

— Hon. M. A. ROBERTS, Judge. Action at law to recover damages for personal injuries received by plaintiff while acting as a driver in defendant’s coal mine. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

<p>1 Intoxicating Liquors: plage of sale: indictment. In a prosecution for maintaining a place for the illegal sale of liquor, it is not necessary that the indictment negative defendant’s right to sell or specify the violations of the law.</p> <p>2 Sale of Liquor, single room. Code, section 2448, which provides that selling or keeping for sale of intoxicating liquors shall he carried on in a single room,. does not prohibit an opening into a refrigerator room which cannot be used either as an exit or place for buying or drinking liquor.</p>

Appeal -from Tama District Court. — Hon. Obed Caswell, Judge. Action to recover damages for the overflow of land. Trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— HoN. F. B. Gay-Nok, Judge. AotioN at law to recover upon a claim for attorney’s fees. From a judgment in favor of plaintiffs for tbe prin- • cipal part of their demand against the defendant bank, the latter appeals.

— Host. S. M. Weaves., Judge. ActioN to recover damages for an assault and battery. Trial to a jury, verdict and judgment for defendant, and plaintiff appeals.

<p>Appeal from Carroll District Court. — HoN. Z. A. Church, Judge.</p> <p>ActioN for seduction. Verdict against defendant, upon which judgment was entered, and he appeals.</p>

— HoN. S. F. Peouty, Judge. ' DeeeNdaNt is the* owner of a farm situated in Polk county, consisting of two hundred and twenty acres. It is admitted that on March 1, 1899, plaintiff entered into the possession and occupancy of said farm as a tenant under a written contract of lease with defendant, the term beginning on said day, and to end on March 1, 1900.

— Hon. S. M. Ehwood, Judge. AotioN at law to recover on an order for a harvesting machine. There was a directed verdict for the plaintiff, and a judgment thereon, from which the defendant appeals.

<p>Appeal -from Plymouth District Court. — Hon. F. K,. Gay-nor, Judge.</p> <p>Action to recover a loss under a policy in a mutual hail insurance company. Defense, that at the time of the loss plaintiff was under suspension from the company on account of failure to pay assessments. Trial without a jury. Judgment for defendant, from which plaintiff appeals.</p>

<p>1 Mortgages; FORECLOSURE: change of VENUE. Where action is hronght by the assignee of a real estate mortgage to foreclose the same, and. the defendant by a cross-petition against the original mortgagees and. others claims damages for fraudulent representations inducing the execution of the mortgage, in case a cancellation of the same is not decreed, the defendants in the cross-petition are not entitled to a change of venue to the respective counties of their residence.</p> <p>2 Evidence: false representations. On the issue of fraud in procuring a mortgage given for the difference in value on exchange of properties, the evidence is examined and held to show that the execution of the mortgage was induced hy the fraudulent representations of the mortgagees and their agent, who was also secretly acting as the agent of the mortgagor.</p> <p>3 Sale of Mortgage; bona fide purchaser : evidence. Where one purchases a mortgage, even for value and before due but with a knowledge that the maker claims a defense which has not been waived or satisfied, he does so at his peril, and this is true though' the purchase is through an agent having such knowledge. Evidence considered and held to bring the case within -the rule. ' .</p>

— Hon. W. S. Withrow, Judge. Action at law upon a policy of insurance issued by defendant upon the life of plaintiff’s husband. There was a verdict and judgment for plaintiff, and defendant appeals.

— HoN. A. W. WilkiN-SON, Judge. The plaintiff is owner of the S. E. ¿ section 6, township 80, range 26, and the defendant is owner of the E. of S. W. i of the same section. There was a pond at abont the center of the south line of defendant’s land, covering about two acres of ground, including a portion of the highway, which run in an easterly and westerly direction.

<p>Guardian and Ward : allowance for support : jtraud and collusion. In general a parent is not entitled to an allowance from a ward’s funds for its support, but where an allowance is made by the probate court on application, the same is presumed to be correct and will be sustained unless fraud is shown. Evidence in the case examined and held to show fraud and collusion between the parent and guardian.</p>

<p>.1 Vendor and Purchaser: options: enforcement of. Code, sections 4299-4301, providing contracts for tlie sale of or agreement to sell any interest in real estate shall not he forfeited unless written notice of intention to forfeit is served on the vendee, do not prevent the making and enforcement of options, to purchase land.</p> <p>2 Option Defined. An option for the purchase of real estate is merely a right of election to purchase, which, when exercised, becomes a contract.</p> <p>3 Reformation of Contract: specific PERFORMANCE. Equity will reform a writing entered into under a mistake as to the legal effect of the words used, and when such is the fact, specific performance will be denied.</p> <p>4 Specific Performance: estoppel. Defendant gave plaintiff an option or contract to purchase land, agreeing that plaintiff should notify him of his final conclusion in the matter. Within the time agreed plaintiff’s agent notified defendant that he could not raise the money and that unless defendant extended the time, which he refused to do, the option -would be abandoned. Thereafter defendant made valuable improvements and leased the land for a term of years. Held, that plaintiff’s acts and conduct estopped him from enforcing specific performance.</p>

Oedar Rapids Superior Court. — HoN. J. H. Rotheock, Judge. Actios for damages occasioned by a collision with.two colts. Judgment as prayed, from which defendant appeals.

— Hon. O. D. Wheelee, Judge. The plaintiffs are the owners of a judgment against the defendant M. j. Davis, who was the husband of Margaret A. Davis, deceased, and is now the executor of her estate. Margaret A. Davis was for many years prior to her death the owner of ten acres of land, which was occupied by herself and her husband, M. J. Davis, as -their homestead. Shortly before she died, she sold this land to Daniel E. Preston for $850.

<p>1 Continuance: Ruling os motion. The action of the trial court in overruling a motion for a continuance based on want of notice that the cause had been assigned.for trial, where there is a dispute regarding such notice, will not he disturbed.</p> <p>2 Appeal: notice : continuance. Onder Code, section 4560, where an appeal from a judgment of a justice is not tafeen on the day it is rendered, the cause will stand for a continuance at the next term of the district court by operation of law, in the absence of notice or waiver of the same.</p> <p>3 Garnishment: counterclaim: evidence. It is improper to per, mit defendant on a counterclaim for wrongful • garnishment to testify that it is the practice of his employer to discharge employes who suffer a garnishment of their wages, there being no allegation of discharge and no showing that plaintiff knew of this practice.</p> <p>4 Wrongful Garnishment: instruction. An instruction that if the jury find that at the time of the commencement of the action defendant was owing plaintiff less than $5, then the suing out of the writ of attachment was wrongful, is erroneous, as it is the amount claimed and not the amount recovered that governs the issuance of the writ, under Code, section 4579.</p>

Appeal-from Blackhdwk District Court. — HoN. A. S. Blair, Judge. The indictment charges the defendant with an assault with intent to commit murder. He was tried, convicted and sentenced to the penitentiary for a term of ten years. From the judgment he appeals.

— HoN. F. C. Platt, Judge. ■ Suit in equity for the partition of certain real estate. From a decree finding that one John Luckhart at the time of his death was the owner of a certain three hundred and twenfy acres.of land in Grundy county, Iowa, which William Luckhart claimed to own, he (William Luckhart) appeals.

— Hon. Eranklin 0. Platt, Judge. IN 1870, Merrick, O. B., and A. D. Dickinson acquired the S. E. N. E. i, of section 5, township 89, range 9, in Buchanan county. Upon the death of Merrick Dickinson, the-other two, his sons, inherited his share.

<p>1 Taxation: appeal prom board op review: jurisdiction op district court : bond. Jurisdiction of the district court to review- an assessment on appeal from a hoard of equalization is acquired by service of the notice of appeal, as provided by Code, section 1373, and failure to file a transcript of the proceedings before the hoard of review until the trial has begun will not oust the court of jurisdiction acquired by the appeal: nor is a bond required on such appeal.</p> <p>2 Street Railway: manner op assessment. Code, section 1843, when properly construed, provides that a street railway is to be assessed as an organized money-earning whole, with proper ' allowance for its state of repair, and is not to be resolved into its component parts for separate listing and assessment.</p> <p>3 Assessment of Street Railway: different districts. Where a street railway extends into more than one taxing district, each district should assess its portion of the same on the basis of a fair and equitable valuation of the entire system.</p> <p>4 Assessment of Franchise. The franchise of a street railway company is not assessable, but the fact that the railroad is in successful operation may be taken into consideration in fixing its value.</p>

<p>Appeal from Muscatine District Gouft. — Hon. W. E BRANNAN, Judge.</p> <p>The petition and first amendment thereto allege plaintiff’s employment by the board of health of the city of Muscatine to disinfect “various houses and places where persons afflicted with smallpox had been kept or resided * * * at the expiration of the quarantine period, the said disinfecting being necessary for the protection of the public health before quarantined persons should be permitted to go at large;” that he had disinfected forty-nine houses, at the agreed compensation of $10 each, and had made use of materials which cost $75; that neither the persons for whom the services were rendered nor those legally responsible therefor were able to pay; that the houses were the homesteads of the parties occupying them; that the claim duly certified by the board of health had been presented to and rejected by the board of supervisors. The second amendment alleges employment “to disinfect' certain houses” as before, and that eight additional houses, were disinfected, and that materials costing $18 were mado use of in so doing. In the third amendment to the petition be alleged further: “That under and by virtue of the contract of employment he had with the board of health of the city of Muscatine he was required, at the expiration of the quarantine period, and after the persons afflicted with smallpox had recovered and were entitled to be permitted again to go at large, except for the disinfecting, to disinfect all clothing and furniture used by the said persons, and which were in the apartment occupied by them when suffering from said smallpox; and in the disinfecting of the clothing, furniture, etc., of the said various persons whose names and places of residence are set out in the original petition as amended; and he states that tfye disinfecting of the personal effects in the rooms and houses occupied by such persons, as done and performed by him, served the double purpose of disinfecting the clothing and effects, and at the same time disinfecting the houses and buildings; and he states that the primary necessity for disinfection, so far as the protection of the public is concerned, is the freeing of the clothing of the persons who have been afflicted or exposed from the germs of said disease, for, if said clothing is not disinfected or destroyed, the persons going at large- with said clothing containing said germs would be and constitute a menace to the public health, and, if said clothing had been destroyed, new clothing would have to be purchased at the expense of defendant, and the expense of the same would have amounted to thousands of dollars.” To the petition as thus amended the defendant demurred on the ground, in substance, that the statutes do not authorize such services to be performed at the expense of the county. The demurrer was sustained, and as plaintiff elected to stand on the ruling, the petition was dismissed, and he has appealed to this court.</p>

— How,' Geo. W. Wakeeield, Judge. Suit in equity to sét aside an award made by appraisers selected by the parties to this suit to determine tbe amount of plaintiff’s loss under a policy of insurance held by him in the defendant company upoii a house in the town of Onawa'; and to recover the amount of the loss actually sustained. The’material issues will be stated in the body of the opinion.

— -Ron. J. W. Bollinger, Judge. Action at law to recover damages for the death of Charles J. Goben. There was a trial, and a directed verdict for the defendant. From a judgment on the verdict, the plaintiff appeals.

— Hon. J. R. Whit-AKER, Judge. ActioN to recover under contract for purchase price of a separator and other machinery, and also on account for the value of said ■machinery’and other items. Verdict for plaintiffs. Motions in arrest of judgment and for a new trial were sustained, and plaintiffs appeal.

<p>•Defective Bond: liability of surety: An incomplete bond, unsigned by the principal, cannot be enforced against a surety in the absence of proof that the surety consented to its delivery in its incomplete condition.</p>

— HoN. F. B. Gay-NOR, Judge. Suit in equity to establish a trust in certain real estate, and to enjoin an execution sale thereof under an attachment issued in a case wherein defendants herein were plaintiffs -and Homer B. Hitt was defendant. From a decree dismissing plaintiff’s petition, this appeal was taken.

— Hon. W. N. Treich-XjER, Judge. ActioN on a fire insurance policy. Trial to the court, and a judgment for the plaintiff, from which the defendant appeals.

<p>Appeal from Wright District Oourt. — HoN. J. R. WhitaKKE, Judge.</p> <p>ActioN by plaintiff, a copartnership, aided by an attachment, on an account for merchandise sold and delivered to defendant. The answer admits the account sued upon,, and in a separate count sets up a counterclaim, based on the attachment bond, for damages alleged to have been caused by the wrongful suing out of the writ. A jury trial was had, resulting in a verdict in favor of defendant. Judgment was rendered on the verdict, and plaintiff appeals.</p>

<p>1 Title on Execution Sale Under Nebraska Law. Under the laws of Nebraska the title to real estate of a purchaser at an execution sale is not complete until the same is confirmed by the court.</p> <p>2 Same: when deed may issue. The purchaser at an executiou sale in Nebraska, where the sale has been confirmed by the court, is entitled to a. sheriff’s deed at any time before the filing of a petition in error, notwithstanding the execution of a supersedeas bond, under section 590, Revised Statutes of Nebraska.</p> <p>3 Good Faith Purchaser. A creditor acquiring a sheriff's deed at a lawful sale is a good faith purchaser.</p> <p>4 Release of Surety: evidence. Where property of the principal debtor has come under the control of a creditor, either by a voluntary act of the debtor or by legal process for the purpose of application to the debt, a voluntary relinquishment of such security will discharge a surety from liability to an extent corresponding with its value. Evidence considered and held to release the surety under the above rule.</p> <p>5 Laws of Another State: opinion of its couets. Courts of one state will not take judicial notice of laws of another, but the opinions of a court of last resort in construing its statutes are entitled to weight.</p>

— HoN. O. A. Bishop, Judge. Aotion for damages for breach of covenants in a conveyance of real estate. Judgment for defendant, and plaintiffs appeal.

— Hon. G-eo. W. Wakefield, Judge. Suit in equity to enjoin defendants from selling a large amount of real estate in Sioux .City, Iowa, under a special execution issued on a judgment rendered by tbe district court of Woodbury county, Iowa, in an action wherein A. L. Stetson was plaintiff, and the Northern Investment Company, the then owner of the property, was defendant.

— HoN. J. B>. WhitaeeR, Judge. This action was commenced by Eliza Bell to recover damages for a personal injury received upon a sidewalk in the defendant town. Said Eliza Bell having died before the cause'was reached for trial, her husband, James Bell, was appointed administrator of her estate, and substituted as plaintiff.

■Appeal from Polk District Court. — Hok. W. F. CoNRAD, Judge. • Peter Kirsher died in August, 1897, leaving a written instrument purporting to be his will. It was duly executed, and was probated as bis will on the 27th day of October, 1897.

<p>1 Railroads: toonotoi act or mail clerk: knowleude of oom-pant. A railway company is not liable in the first instanca-for injuries resulting from the negligent act of a mail clerk in throwing the mail pouch from a moving car to the station! platform, but may become so liable by permitting tile agent to pursue the dangerous practice for a sufficient time to charge it with knowledge of the custom.</p> <p>2 Assumption of Risk, knowledge op danger. Mere knowledge of a dangerous custom is not sufficient to throw the risk thereof upon the person having such knowledge unless he has also appreciated the danger involved.</p> <p>3 Assumption of Risk: instruction. Where one is injured by a mail pouch thrown from a moving car while standing on a station platform at a place other than that at which he knows the pouch is usually thrown, he does not assume the risk and there is no occasion to instruct the jury with reference to assumption of risk as distinct from contributory negligence.</p> <p>4' Assumption of Risk: contributory negligence. The distinction between assumption of risk and contributory negligence discussed.</p> <p>5 Negligence of Mail Clerks: liability op railway company. Where a railway company is charged with knowledge of the negligent practice of mail clerks in throwing the mail pouch from a moving car to the station platform, it is liable to one rightfully on the platform, for injuries received thereby.</p>

— Hon. W. B„ Quarton, Judge. Action on a promissory note of $1,232.12, signed “Garter & Go., by J. E. Garter,” dated February 7,1900, and payable in sixty days. The petition alleges that the-defendant Brown was a member of that firm, and as such liable on the note, and also on a guaranty. The defendant-put these allegations in issue. After plaintiffs had introduced their evidence, the court directed a verdict for the defendant.

— Hon. W. B. Quar-ton, Judge. Action for the conversion of certain personal property. Defendant claimed the goods under an attachment sale thereof as the property of T. B. Syck, Lyman D. Baird intervened, claiming possession of the property under a .chattel mortgage executed by plaintiff to one Stilson, and by Stilson assigned to the intervener. -At the conclusion of the evidence the trial court directed a verdict for defendant, and plaintiff and intervener appeals.-

— HoN.-W. F. CoNkad, Judge. In this action, damages are demanded of defendant for suing out a landlord’s writ of attachment maliciously and without probable cause. To support the allegations of the petition, the pleadings in the former action, a part of the court’s instructions, the judgment therein, and someof the proceedings incident to the care of the property seized, 'were introduced in evidence.

Appeal -from, Lynn District Court. — HoN. H. M. Remley, Judge. ActioN for damages for an alleged illegal arrest. Verdict and judgment for plaintiff, and defendants appeal.—

— Hok. A. D. Bailie, Judge. Action by plaintiff, a real estate agent, to recover commissions claimed to be due him from defendant on account of an alleged real estate transaction. The facta necessary to be considered are stated in the opinion. A jury was impaneled, and at the close of the evidence for plaintiff the court, on motion, directed a verdict in favor of defendant, and entered judgment against plaintiff for costs. Plaintiff appeals.

<p>Appeal from Pottawattamie District Court. — Hon. O. D. Wheeler, Judge.</p> <p>The opinion states the case.—</p>

— Hon. A. B. Thornell, Judge. Application in a receivership proceeding for the ah lowance and establishment of a claim filed by the inter-vener, as executor of the estate of A. Cochran, deceased, as a'preferential one. The trial court denied the application, and intervener appeals.

— Hon. J. W. Bollinger, Judge. Action brought for the appointment of a guardian for defendant, who is alleged to be of unsound mind. Defendant is seventy-five years of age, and the plaintiffs are his children. There was a jury trial, and a verdict finding defendant to be of unsound mind. On his motion, such verdict was set aside, and a new trial granted. The plaintiffs appeal.

— HoN. A. R. Dewey, Judge. ActioN in replevin for corn. James Winkleman intervened, claiming four hundred bushels under a chattel mortgage and by purchase. Defendant answered, denying plaintiff’s title. Judgment as prayed, and intervener appeals.

— Hon. A. B. Thoenedl, Judge. Action to recover damages for personal, injuries received by plaintiff- while in the employ of ,defendant. Verdict for plaintiff, and from judgment thereon defendant appeals.

— HoN. S. P. Prouty*. ■ • Judge. IN September, 1899, the city council of Des Moines-commenced condemnation proceedings to acquire property of the plaintiff for street extension purposes, as follows t The north thirty-three feet of lot four, the south six feet-of lot nine, and a strip ‘of ground in lot four, fifty feet, wide by seventy-two feet long.

— Hon. T. M. Gilberson, Judge. Action at law to recover damages for personal injuries occasioned by defendant’s negligence. Verdict and judgment for defendant, and plaintiff appeals.

<p>Appeal from Mahaska District Gourt. — Hon. John T. Scott, Judge.</p> <p>.Appeal from an order entered in probate. Wm. Cummings, Sr., died testate, and his will was duly admitted to probate. By the terms of such will, he directed the payment of. certain specific legacies, and then directed a division of the remainder of his estate among all his ■children, share and share alike, including one share to the heirs of his deceased daughter, Della Moore. “It being my desire that each of my said children, or their heirs, shall have an equal full share, save and except, * * * that my daughter, Della Moore, is dead and left one child, and that I advanced to her mother in her'lifetime the sum of $400, which I direct shall be deducted from the share bf the heirs of Della Moore in my estate * * * and I hereby direct my executors to distribute my estate as above directed — first to pay * * * [specific legacies] then divide the remainder into nine equal shares among said heirs, deducting * * * from the share of the said heir of Della Moore $400.” A final report, so called, was filed by the executors, in which there appears charged as against the share of Maud Magee, the daughter and only child of Della Moore, deceased, the sum of $400; also the sum of $365, the latter said to be on account of a note given by Della Moore to her father in his lifetime. To that part of the report charging her the sum last above named,, said Maud Magee filed exceptions. On her motion the matter was- transferred to the equity docket, and there heard as an equitable action. There was a decree sustaining the exception to the report, and the executors appeal.</p>

<p>Appeal from, Buchanan JDistriet Court. — Hon. PraNKliN C. Platt, Judge.</p> <p>AotioN to recover the possession of specific personal property. Trial to a jury, and verdict and judgment for the defendants. The plaintiff appeals.</p>

— Host. J. EL Apple-gate, Judge, AotioN to enjoin the defendant town from removing* disturbing, or in any way interfering with a cement sidewalk constructed along the west side of a certain lot in said town belonging to plaintiff, who is a resident and. property owner of the town; and also to restrain the town* or any of its officers, from removing or in any way injur•, ing any of the shade trees planted along the west side of plaintiff’s property between the said sidewalk…

— Hon. A. R. Dewey,, Judge. The plaintiff was the owner of a corner building, with a basement, located on the south.side of High avenue, at its intersection with D street, in the city of Oskaloosa. The city built a main sewer along the avenue by the plaintiff’s property, and paid for it by a general assessment.

— HoN. ClietoRD P, Smith, Judge. In Dunton v. McCook, 98 Iowa, 258, this court affirmed' a decree of the district court, entered May 18, 1892, to the effect that a deed of certain real estate executed by A. K Tyrrell to Thomas McCook in 1875 was in fact a mortgage-to secure the payment of certain advances made by the latter from sales, and rents and profits collected; that upon accounting $524.44 was still owing January 1, 1890; that upon payment thereof “said Tyrrell will…

<p>1 Nuisance: abatement op. The fact that a nuisance may also affect others in the vicinity injuriously will not affect the plaintiff’s' right to maintain a suit to abate the same, uhder Code, section 4302.</p> <p>2 Nuisance: evidence. Evidence that defendant maintained a! dumping ground for garbage, manure and other refuse, near plaintiff’s dwelling, causing a stench and that there had been several cases oí fever in plaintiff’s family during the time same was maintained is considered, and held sufficient to support a finding that the place was a nuisance.</p> <p>3 Approval of Record. The fact that the record of a case is not approved until the succeeding term is not prejudicial error.</p> <p>4 Reopening CAse. A ruling reopening a case for further testimony will not he disturbed in the absence of a showing of abuse of the court’s discretionary power.</p>

— ;Hon. O. D. . • Wheeler, Judge. • Action to recover commissions on goods alleged to have been sold by plaintiff for the defendant company. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

— HoN. W. R. GREEN, Judge. ActioN by a married woman to recover damages, both actual and exemplary, on account of injuries received by reason of the sale of intoxicating liquors by defendant to her husband. Verdict for plaintiff; and from judgment thereon, defendant appeals.

_Appeal from Dubuque District Court. — Hon. M. 0. Matthews, Judge. Action for partition of two certain parcels of real property, in which plaintiff claims an undivided half interest by conveyance from defendants O. G. Kringle-and Ellen M. Kringle, his wife; alleging that th.e other undivided half is the property of defendant Julia Rhomberg.

— Hon. H. M. TowneR, Judge.- The correct title of this cause is given in the caption above. By inadvertence and error on the part of counsel for appellant, the title of the cause as printed on the abstract was given as “E. A. South wick, Appellant, v. R M. Widner et al., Appellees,” and the cause was so docketed. The record is now ordered changed to correspond with the corrected title as given above.

<p>Appeal from Marion District Court. — HoN. A. W. Wilkinson, Judge. ’</p> <p>Action in equity to cancel a mortgage made by plaintiff to the Equitable Loan Company, and assigned to O. D. Hester. Decree as prayed, and Kester appeals.—</p>

— Hon. S. M. Elwood, Judge. Actios on contract for the price of sinking a well; -also for the reasonable value of ,tbe work done. Judgment was rendered on a directed verdict for the defendant. The plaintiff appeals.

— Hon. G. W. Burnham, Judge. Suit in equity for the specific performance of an agreement to convey real estate. The contract was made by an agent of defendant, and defendant pleaded that the agreement was without authority, and that it failed to contain certain stipulations which should have been exacted from the purchaser. Trial to the court. Decree for defendants, and plaintiff appeals.

.Appeal from Dallas District Court. — Hotr. J. D. Gamble, Judge. Action of replevin, brought by the plaintiff corporation to recover possession of certain goods alleged to be detained by the defendant Glucklick, then a merchant doing business at Perry.

— Hon. Obed Cas-well, Judge. Appeal from an order sustaining plaintiff’s motion for a new trial in an action wherein she sought to recover damages for defendant’s failure to observe a contract of lease of certain rooms in a building in the city of Mar-Appeal from an order sustair shalltown, and to recover the sum of $120 paid to defendant’s agent. The issues and facts will appear in the opinion.

— HoN. Z. A. Church, Judge. Action to recover damages for personal injuries received by plaintiff while in defendant’s employ from the' caving in of a gravel bank, about which he was engaged,, assisting in the operation of a steam shovel. At the conclusion of plaintiff’s evidence the court, on motion, directed a verdict for defendant, and from judgment on. such verdict the plaintiff appeals.

<p>Building and Loan: loan to wipe: liability op husband: usury. A husband who joins in the execution of a note and mortgage on the wife’s property to secure the payment of a loan made to her by a building and loan association of which she was a member, becomes a surety for the payment of the debt according to her contract, and cannot avail himself of the defense of usury.</p>

<p>.Insurance: . payment of loss: waxyer: rights of mortgagee. The assured cannot waive the effect of an arbitration of a losa under a policy of insurance whereby the company elects to pay the loss rather than replace the property, so as to bind a mortgagee to whom the- loss was payable.</p>

— Hon. W. N. Treichler,, Judge. In 1881 the plaintiff instituted condemnation proceedings for a right of way one hundred feet wide across the land now owned by the defendants, but then owned by their • grantor, one Jones.

<p>1 Estates of Decedents: widow’s allowance: fraud. The statement of a widow in her application for the allowance of a year’s support, alleging that her hnshand died intestate when in fact he left a will, does not amount to fraud, where the' other allegations are substantially correct.</p> <p>2 Allowance of Widow’s Support. Code, section 3314, contemplates that an allowance shall be made to the widow Out of her husband’s estate for a year’s support of herself and children,even though she may have property in her own right.</p> <p>3 Allowance for Widow: application to set aside : delay. Where one of the executors of a will learned of an order making an allowance for the widow shortly after it was made, he cannot have the order set aside on his application filed two years afterwards, because of delay.</p>

— HoN. ,H. M. Rbmley, Judge. AotioN to quiet title to a strip of land in an addition to the city of Cedar Rapids. The defense interposed was that it had been dedicated as a street and accepted as such by the city. A portion of the plat is annexed.

— HoN. S. M. Weaver, Judge. FlaiNTIee is the owner of lot 1, block 56, original town of Ft. Dodge. -Said lot faces east on Eighth street, and is bounded on the south by Third avenue. It extends to the west one hundred and twenty feet to a north and south alley. This action is brought to recover damages to said lot occasioned by the raising of the physical grade of said street, avenue, and alley, There was a jury trial, and verdict and judgment for plaintiff.

— Hon. Z. A. ChuROH, Judge. Action to recover damages for injuries received by plaintiff by reason of a defective sidewalk. A demurrer to the petition on the ground that the action was barred by the statute of limitations was sustained, and plaintiff appeals.

— Hon. Z. A.' Church, Judge. Action at law to recover damages for personal injuries received by plaintiff’while passing along and over a sidewalk in the defendant town. Trial to a jury. Yerdrct' and judgment for' plaintiff, and defendant appeal's.— '

— Hon. T. M.. Giberson, Judge. Action to secure the cancellation of a contract between’ the plaintiff and defendants the Ogden Plow Company and the Merchants’ National Bank for the sale by the plow-company to plaintiff of certain real estate belonging to. the plow company, on which the bank held a certifícate of .purchase at execution sale on an indebtedness due to it from the plow company.

— Hon. N. W. Macy, Judge. The plaintiff sued on a note and attached the defendant’s property. The defendant counterclaimed on the bond and recovered a judgment thereon against the plaintiff. Both parties appeal. The plaintiff will be termed the appellant.

— HoN. Wm. HutchinsoN, Judge. ActioN for damages on account of a personal injury occasioned, as alleged, by a defective sidewalk. There was a jury trial, verdict and judgment in favor of plaintiff, and defendant appeals.

— Hon. G. W. Burn-ham, Judge. Action for purchase price of machinery contracted for, and the establishment of a mechanic’s lien. The answer put in issue the allegations of the petition, and pleaded a counterclaim. A balance of $610.50 was found due plaintiff, and a decree entered accordingly. Both parties appeal, that of plaintiff being first perfected.—

— Hon. S. M. Elwood, Judge. Suit in equity to enjoin the execution of a sheriff’s deed on certain real estate alleged to belong to plaintiff. The trial''court dismissed the petition, and plaintiff appeals.

— Hon. O. D. Wheeler, Judge. ActioN at law to recover damages for the levy of an attachment upon goods. Judgment for plaintiff, and defendants appeal.

.Appeal from Linn District Court. — Hon. W. N. Tbeichleb, Judge. • In the lower court plaintiff asked a writ of certiorari •to inquire into the legality of the action of the mayor and ■city council of the city of Cedar Rapids, acting as a board of review for the equalization of assessments for taxation in said city, in raising plaintiff’s assessment, without proper notice thereof.

— Hon. W. F. ConRAd, Judge. The plaintiff gave a chattel mortgage to the German Savings Bank of Des Moines upon property partly in Des Moines and partly in Louisa county. The mortgage stipulated for the usual foreclosure and sale by the mortgagor upon notice, and also for any other lawful method of foreclosure.

<p>Appeal from Polk District Court. — Host. O. P. Holmes, Ju'dge.</p> <p>Suit for reformation of deed. Decree as prayed, and defendant appeals.</p>

<p>Appeal from, Polk District Court. — Host. W. F. CoNRAd,; Judge.</p> <p>ActioN upon a promissory note. Judgment for the-plaintiff, and the defendant J. B. Hensbaw appeals.—</p>

— Non. A. D. Bailie, Judge. Action at law on a policy of insurance issued to indemnify plaintiff against loss or damage by fire or lightning on a steam engine, separator, stacker, self-binder, weigher, and water tank. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— HoN. H. M. Townee, Judge. On December 1,1890, G.W. Frank, residing in the state of Nebraska, was the owner of one hundred and twenty acres of land in Adams county, this state, which land he had •placed in the hands of the defendant, Bell, then a real estate agent residing at Corning, in said county, for sale.

— Hon. H. M. Eemley, Judge. Action at law on two promissory notes given for the •purchase price of certain slieep. Defense, failure of consideration, due to the diseased condition of the animals when sold, and a counterclaim for damages for breach of •warranty of the sheep made at the time of the sale. Trial to a jury. Verdict and judgment for defendant, and plaintiff appeals.

— Hoe. F. 0. Platt, Judge. Action by plaintiff, as administratrix, to recover damages for the death of her intestate, David B. Ames, caused by a collision between him and a street car operated by the defendant company. At the close of the evidence the court instructed the jury to return a verdict for defendant, and from judgment thereon plaintiff appeals.

— Hon. J. E. Clyde,. Judge. Omitting matters not material to the questions argue'd in this court, this'case may be stated as follows: Plaintiff, by a written instrument, leased a farm of two hundred acres in Winnebago county, Iowa, to the defendant, for a term of three years beginning March 1, 1899.

.Appeal from Wright District Court. — HoN. S. M. Weaves, Judge. Suit to rescind a contract under which the parties •exchanged properties. Upon hearing, the petition was •dismissed, and plaintiff appeals.

<p>1 Agency: commissions: secondary evidence. In an action partially based on three letters, two of which defendant admitted in his answer, and his testimony as to the contents of the third was substantially as set out in the petition, the fact that the court permitted evidence of their contents without a formal notice to produce was harmless error.</p> <p>2 Ora! Agreement: EViDENaE of. In an action for commissions for the sale of land it is not error to permit evidence of what took place at a public sale of the land, at which time it was alleged the parties made the oral agreement sued on.</p> <p>3 Assignment of Error: insufficiency of. An assignment of error that the court erred in refusing to read, and in reading instructions asked and refused, is not sufficiently specific to be considered.</p>

<p>Appeal from PolJc District Court. — Hon. C. A. Bishop, Judge.</p> <p>An appeal was taken in accordance with the provisions of Oode, section 2450, from the action of the board of supervisors of Polk county, in holding sufficient a statement of general consent to the sale of intoxicating liquors in Des Moines. The district court affirmed the action of the board of supervisors, and persons who contested the sufficiency of the petition for consent appeal.</p>

'Appeal from Wright District Court, — Hon. W. S. Keuyon, Judge. Appeal from an order taxing an attorney’s fee for plaintiff’s attorney in a. condemnation proceeding, and form an order apportioning said fee.

— HoN. E. J. House, Judge. AotioN in equity, based upon a certificate of membership in the defendant society. A demurrer to the answer filed by defendants was sustained, and, defendants refusing to plead further, there was a debree in favor of plaintiff as prayed. Defendants appeal.

<p>Appeal from Buchanan District Oourt. — HoN. F.. 0. Platt, Judge.</p> <p>Ti-ie defendant is a mutual benefit association, and on the 4th day of May, 1897, issued to the plaintiff its certificate of membership and insurance, which provided for the payment of $200 “for each broken arm or leg resulting from accident.” The certificate also contained the following agreement: “This benefit certificate is issued and accepted upon the following express warranties, conditions and agreements: First. This'certificate, the articles of incorporation, fundamental Jaws, by-laws, rules and regulations of this fraternity, now.in force or which may be hereafter adopted, and the application for membership, including the physician’s report, a copy of which is hereto attached, shall together, constitute the exclusive contract between this fraternity, the member and the beneficiary.” In October, 1900, the supreme lodge of the defendant regularly adopted a by-law defining what should constitute a broken leg within the meaning of its certificate, as follows: “The breaking of a leg is specifically defined to be the breaking of the shaft of the thigh bone between the hip and the knee joints, or the breaking of the shafts of both bones between the knee and ankle joints, and no payment will be made for a broken * * * leg unless the same comes under the definition of a broken * * * leg as above set out.” In February, 1901, the plaintiff had one bone of the right leg broken between the knee and ankle joint, and brings this action to recover therefor under his certificate. . The defendant alleges no liability under the by-laws in force at the time of the accident. The case was tried in equity upon an agreed statement of facts, and a judgment rendered for the defendant. The plaintiff appeals.</p>

<p>School Funds: deposit in bank:: guaranty op repayment, validity. A school township treasurer may rightfully make a general deposit of the funds of his district- in a solvent bank in his name as such treasurer, and the title to the fund will not thereby pass to the bank nor does it amount to a conversion; and any guaranty which the bank may give to secure him against loss in case of its failure is not invalid, either on the ground that the deposit was wrongful or as against public policy.</p>

<p>1 Garnishment: setting aside judgment. The entry of judgment against a garnishee and approval of the record does not deprive the court of power to set the judgment aside and reopen the proceeding on a motion of the garnishee made at the same term.</p> <p>2 Same: insufficient notice. Where a judgment against a garnishee is entere.d upon an insufficient notice to the judgment defendant, the same is premature, if not void for want of jurisdiction and should he set aside.</p> <p>3 Garnishee: judgment against. Judgment on the answer of a. garnishee admitting an indebtedness to become due at a future time is unauthorized prior to the time the liability becomes fixed.</p> <p>4 Same. Where the garnishee in his first answer admits liability, but in a second, relating to the same debt and same judgment debtor shows that the same is conditional, judgment should not be entered, and if entered will be set aside on motion.</p> <p>5 Liability of Garnishee: evidence of. To charge a garnishee upon his answer alone, his liability should clearly appear.</p>

<p>1 Parties: In order to reach, funds-in the possession of a bank as a depositary, the bank should be made a party to the suit.</p> <p>2 Appeal Bond: rights of obligee : subrogatioh. Where the conditions of a bond are broken, the money deposited by a prin-' oipal to indemnify his sureties may be reached by the obligee through the equity of subrogation.</p> <p>8 Appeal Bond: deposit to segure sureties: how beached by obligee. A suit in equity against the principal and sureties on a supersedeas bond for damages sustained by reason of the appeal, to which a bank with whom the principal deposited funds to indemnify his sureties is made a party, is a proper proceeding to reach the funds in the bank, and the obligee is not required to resort to garnishment for that purpose.</p> <p>4 Appeal Bond: what seoubed thereby. A bond given to supersede the issuance of an execution on a judgment involving specific property, conditioned to pay costs and damages adjudged against appellant on appeal and to satisfy and perform a judgment rendered on appeal, does not include rents, damages, profits or taxes in relation to the property covered by the judgment which appellant has allowed to accumulate during the appeal.</p> <p>5 Appeal Bond: reformation oe. A supersedeas bond executed through mistaké may be reformed in equity.</p> <p>6 Pleading: sueeioienoy oe. A pleading which contains allegations of fact sufficient to entitle the pleader to the relief asked is not bad because it also states conclusions of law.</p> <p>7 Appeal Bond: extent oe reformation. In the absence of evidence as to agreed conditions in an appeal bond its reformation, if allowed, will be to conform it to the statute.</p>

<p>1 Deeds: execution: evidence. In an action for the possession of real property which plaintiff claimed hy deed from her children, the. evidence is considered and held sufficient to show that plaintiff’s son, the deceased husband of' defendant, joined in the deed.</p> <p>3 Evidence: motion to strike. ’ Where evidence is admitted with-ont objection, a motion at the close of all the testimony to strike certain portions comes too late.</p> <p>3 Deed: alteration of. The unauthorized alteration of a deed after its execution and delivery will not affect its validity.</p> <p>4 Deed: acknowledgment. Acknowledgment is not necessary to the validity of a deed between the parties..</p> <p>5 Adverse Possession; payment of rent. Payment of rent for a series of years by the occupant of land will preclude his heir from acquiring title by adverse possession.</p>

— Hon. W. N. Teeichlsb, Judge. Action to quiet title to a strip of land. Defendant claimed it as a part of its right of way. On hearing, the petition was dismissed, and plaintiff appeals.

— HoN. H. M. Remley,. Judge. GARNISHMENT proceedings against E. A. Bailey, who was garnished as having in her possession moneys, credits,, and other property belonging to the judgment defendant,. S. 0. Bailey, her husband. On trial to a jury, a verdict was returned finding that E. A. Bailey held such property,, and judgment was rendered against her for the amount of plaintiff’s judgment against defendant S. 0. Bailey, with, costs. The garnishee appeals.

<p>Dower: limitation op action. Tlio statute of limitations does not commence to run against a wife’s right of dower until the death of the husband.</p>

<p>Appeal from Audubon District Court. — How. A. B. Thor-Nell, Judge.</p> <p>PETITION for allowance of claim against the estate of the testatrix. Trial to jury. ' Verdict for plaintiff', and defendant appeals.</p>

— HoN. C. P; Holmes,. Judge. PlaiNtiee asked that defendant be enjoined from-causing surface water to flow over his land upon plaintiff’s-land otherwise than in accordance with the natural drainage, and defendant by cross-petition asked similar relief' as against plaintiff: The trial court granted the relief asked by plaintiff, and refused relief tq defendant on his-cross-petition. Defendant appeals.