Volume 122 — Iowa Reports

<p>Appeal from Polk District Court. — HoN. S. F. Pbduty, Judge.</p> <p>The defendant was convicted of larceny from a building, and appeals.</p>

<p>Estates of Decedents: PRACTICE: reporter’s notes. Neither 1 the certificate of the reporter’s notes, as made by the trial judge and reporter, nor its date as appears therefrom, nor the date at which the notes are filed with the clerk, as shown by the filing, can be impeached b'y affidavits filed in the appellate court. ■ '</p> <p>Practice: piling of reporter’s notes. Where the reporter’s notes .2 ■ are duly, filed with the clerk, the evidence is properly preserved whether the same is formally marked filed or not.</p> <p>Estates: attorney’s pees. Where a claim for attorney’s fees was 3 based upon a contract with the executor for compensation' from the estate, which the court • refused to enforce, it was error to enter judgment against the heirs, in the absence of any allegations of fact showing their liability. '</p> <p>Probate Jurisdiction. A probate court has no jurisdiction to de-4 termine the liability of heirs for services rendered the estate by attorneys for an executor.</p>

— Hon. S. M. Elwood, Judge. In the original petitioD the plaintiff asked judgment against H. 0. McAllister on a written agreement to sign the notes sued on as surety* for Salinger & Brigham. After the plaintiff’s evidence had been introduced, November. 27, 1897, an amendment to the petition was filed, in which it was asserted that the agreement was partly oral and partly in writing.

— Hon« A. D. Bailie, Judge. Action, to recover damages for refusal to deliver a certain lot of ice under a contract for the sale thereof. On motion the court directed a verdict for defendant, and rendered judgment thereon against the plaintiff for costs. Plaintiff appeals.

<p>Appeal from Story District Court. —HoN. J. H. Richard, Judge.</p> <p>The defendant’s line of road crosses that of the Northwestern Railroad Company at Slater on the level. On the 14th day of February, 1902, the defendant, through its engineer, pulled its freight train over said crossing without stopping, as required by section 2073 of the Code, and in this action recovery of the penalty as therein provided was claimed. Trial to jury resulted in verdict and judgment for the state. The defendant appeals.</p>

<p>Fraudulent Conveyances: evidence. Where attached goods are 1 claimed under a hill of sale made on the day of the attachment, evidence of the debtor’s statements as to his financial condition, made prior to the bill of sale, is admissible on the issue of fraud.</p> <p>Evidence: value. Evidence of the value of goods on another date • 2 than that in question is admissible where it is shown that there has been no material change in the stock.</p> <p>Evidence: cross-exaahnation. In an action between attaching 3 creditors and one claiming under a bill of sale, where the debtor testified in chief as to his liabilities and other matters tending to show fraud, but not as to the value of his goods covered by the bill of sale, his cross-examination regarding the value of his real estate was improper.</p> <p>Same. A party cannot complain of matters 'brought out by his 4 own cross-examination.</p> <p>Continuunce: amendment of motion. Granting leave to amend a 5 motion for continuance based on the ground of absent witnesses, where it is admitted that the witnesses will testify as alleged, is discretionary with the trial court.</p> <p>Assignment of Error: misconduct. To support an assignment of 6 error on the ground of misconduct of counsel, there must have been a proper exception and a ruling of the court at the time of the alleged misconduct, and an assignment simply, that the court erred in overruling the motion for a new trial, is insufficient.</p>

— Hok. J. H. Bichabd, Judge. ACTION to recover on four distinct causes of action, viz.: 'Damage to plaintiff’s meadow caused by a fire set out by defendant’s locomotive; destruction of certain hay by a fire set out at another time by defendant’s locomotive; the killing of a steer by defendant’s locomotive on its track at a place where defendant had a right to fence, the steer having come’upon the right of way at such place by reason of a defective and insufficient cattle…

— Hon. E. E. Aylesworth, Judge. AotxoN in equity for the foreclosure of a real estate mortgage. The makers of the mortgage, -W. M. Owens and wife, were made parties defendant, and a default judgment was rendered against them. Personal judgment is asked against the defendant Besley, a subsequent purchaser of the property from Owens; it being alleged that in the deed to him he assumed and agreed to pay. the mortgage debt.

<p>Appeal from Marshall District Court. — Hon. Obed Cas-well, Judge.</p> <p>Action at law to recover damages for the death of plaintiff’s intestate. The trial court directed a verdict for the defendant, and from the judgment entered thereon the plaintiff appeals.</p>

<p>Appeal from Linn District Court. — HoN. H. M. Reviley, Judge.</p> <p>ActioN to recover damages resulting irom personal injuries received by plaintiff while driving in a street of defendant city by reason of his horse stepping into a hole in the highway in or beside'a culvert, the result being that plaintiff was thrown to the ground. Judgment for plaintiff on a former trial was reversed, and a new trial ordered. 114 Iowa, 180. On this trial verdict was returned for tlie plaintiff for $100 damages, which, on plaintiff’s motion, was set aside as inadequate. From this ruling defendant appeals.'</p>

— Host. W. N. Treichber, Judge. ActioN at law for damages on account of fraud and misrepresentation in the sale of certain mill property. Verdict and judgment for plaintiff, and defendant appeals.

<p>Chattel Mortgages: special interrogatories. It is not error to 1 refuse special interrogatories, respecting a matter concerning which there is no controversy.</p> <p>Where a Writing May be Varied by Parol. The rule excluding 2 parol evidence of the agreement of parties, where there is a writing , does not, apply to actions between a party to the contract and a stranger.</p> <p>Evidence: course of dealing. In an action by a mortgagee to 3 recover mortgaged cattle where it is contended there had been a waiver of the mortgage lien, evidence of a course of dealing between the parties tending to constitute such waiver, is admissible.</p> <p>Waiver: estoppel. A chattel mortgagee may waive his lien and 4 a purchaser will take the property free from the incumbrance, though the same is not discharged in writing, as neither written evidence nor a consideration are required to support a waiver or an estoppel.</p> <p>Chattel Mortgage: description op property. In an action by a o mortgagee to recover mortgaged property, the question of whether the mortgage contains a description sufficient to identify any property is one of law for the court, hut whether the property in dispute is covered by tile mortgage, is one of fact for the jury.</p>

<p>Chattel'Mortgages: alteration op written instrument by parol. 1 The rule that parol evidence is incompetent to vary the terms of a written instrument', only applies to the parties to the instrument.</p> <p>Waiver of Lien : estoppel. When a mortgagee agrees that the 2 property covered hy the mortgage may he sold, the purchaser takes it discharged of the lien, although he knew of the mortgage. The waiver of the lien acts as an estoppel in favor of the purchaser and no consideration is necessary to its validity.</p> <p>Specific Interrogatories: refusal op. It is not error to refuse .8 certain special interrogatories where the material "matters inquired about are included in those given by the court. .</p> <p>Evidence: In an action to recover mortgaged, cattle where the evi-4 dence tended to show permission of the mortgagee to sell, it was improper to inquire, of the mortgagor on cross-examination if he were not living in another state under an assumed name, hut permissible to show that he had been brought back to answer to the'charge of selling mortgaged cattle, as affecting his credibility.</p>

— Hon. F. W. Eichelberger, Judge. INDICTMENT charging defendant with the offense of maintaining a liquor nuisance. Verdict and judgment of guilty, and defendant appeals.

Appeal -from, Winnebago District Court. — HoN. JohN F. Clyde, Judge. DeeeNdaNt was indicted for the crime of rape, committed, as is alleged, upon bis stepdaughte^/He was convicted of tbe crime charged, and sentenced to the penitentiary for the term of twenty years. This appeal is from the judgment pronounced against him.

<p>Appeal from Worth District Court. — Hon. Clieeoud P. Smith, Judge.</p> <p>The defendant was indicted for an assault with intent to inflict great bodily injury. He was found guilty of assault and battery, and from the judgment entered on íe verdict he appeals.</p>

<p>Damages: defective sidew ale. Under-the evidence, a verdict 1 for $675.00 damages, for an injury received from a defective sidewalk is held not to he excessive.</p> <p>Pain and Suffering: instruction. An instruction authorizing 2 recovery for future pain and suffering is proper where the evidence shows that plaintiff suffered severe pain from the time of the injury until the trial and had not then fully recovered, even though thé same was caused by a physical condition not specifically pleaded, when it appears that such condition might have resulted from the accident.</p> <p>Pain and Suffering: evidence of complaint. In a personal in-3 jury action evidence of plaintiff’s complaints of pain and suffering is admissible.</p>

— HoN. Wm. Hutch-INSON, Judge. ActioN'to enjoin the collection of taxes levied in payment for the excavation of a ditch. On hearing, the petition was dismissed, and the plaintiffs appeal.—

— Hon. C. W. Vermillion, Judge. Plaintiee brought action against defendant to recover judgment on certain warrants issued for the construction of a schoolhouse of the face value of about $7,000, less payments made thereon.

<p>Good Character: instruction. An instruction to the jury in a criminal prosecution limiting the benefit of proof of previous good, character to cases where the guilt of the accused is doubtful, is reversible error.</p>

— HoN. Geo. W. Wakeeield, Judge. The defendant was indicted by the grand jury of Cherokee county, charged with the crime of murder in the first degree: After a demurrer to the indictment had been overruled, the defendant entered his plea of not guilty; Thereafter, and in open court, he withdrew the plea so entered and entered a plea of “ Guilty of the homicide charged in the indictment.” Evidence was taken by the court relative to the circumstances connected with the…

— HoN. H. M. Towner, Judge. IN an action in equity, brought by tbe defendants against the plaintiff, W. B. Gray, the petition alleged that the . defendant was the tenant of the plaintiffs under a lease providing for a cash rental of $750 per year; that no jjart of the rent was then due, but that a portion thereof would become due on the 1st day of January following, and the balance thereof on the next 1st day of March; that Gray was insolvent, and that he had sold a large…

<p>Appeal from Mahaska District Court. — Host. W. G. Clements, Judge.</p> <p>Action for divorce. Decree for plaintiff.» Defendant . appeals.</p>

— HoN. A. R. Dewey, Judge. Deeendant was indicted, tried, and convicted of the crime of murder in the first degree, and his punishment was fixed as death. From the'judgment on the verdict defendant appeals.

<p>Appeal from Jasper District Court. — Hon. W. G. OleM-eNts, Judge.</p> <p>The defendant was convicted of murder in- the first degree, and appeals.</p>

<p>Appeal from Mahaska District Court.-HoN. JOHN T* * Scott, Judge.</p> <p>The opinion states the case.</p>

— HoN. A. W. WilkiN-SON, Judge. DEFENDANT was indicted for the crime of murder in the first degree. He was convicted of murder of the second degree, and sentenced to the penitentiary for the term of thirty years. From the verdict and judgment defendant appeals.

— HoN. O. D. WheeleR, Judge. The defendant was convicted of murder in the first degree. There was a judgment imposing a life sentence, from which he appeals.

<p>Rape: corroborative evidence : The sufficiency of corrobor-1 ative evidence on a prosecution for rape, is for the jury.</p> <p>Rape: distinct offenses: election. On a prosecution for rape 2 where the relations of the parties were so intimate and continuous that the crime cannot he more definitely fixed at one time than another, an election will not he required, hut where the indictment is for one offense and several separate and distinct crimes are proven, or the criminal relations are shown to have occurred at different periods the state will he required to elect on which transaction or in which period it will rely.</p>

— Hon. A. S. Blair, Judge. Action under Code, section 4822, to recover three times the value of a certain check for $400 and. a certain contract to convey real estate for the consideration of $15,400, which it is alleged were the property of plaintiff and were willfully and maliciously destroyed by defendant. The court directed a verdict for plaintiff for $1 as damages,-and the plaintiff appeals.

— Hok. O. P. HolMes, Judge. The defendant, together with Creed Bailey and George Anderson, were jointly indicted by the grand jury of Polk county for tbe crime of assault with intent to rob. This defendant — Bert Atkins — demanded and was given a separate trial. He was convicted, and from a judgment imposing a term in the penitentiary he appeals.

<p>Appeal from Blacltkawh District Oourt. — HoN. Franklin 0. PlAtt, Judge.</p> <p>ActioN in equity to set aside certain conveyances. Decree denying the relief asked, and plaintiff appeals. The issues are more fully stated in the opinion.</p>

<p>Appeal from Polk District Court. — How. Josiab Given, Judge.</p> <p>INDICTMENT for an attempt to break and enter a building. Trial to a jury. Verdict and judgment of guilty, and defendant appeals.</p>

— UoN. M. A. Roberts, Judge. The defendant was accused of the crime of assault with intent to commit murder. He was convicted of assault with intent to commit manslaughter, and appeals. — ■

— HoN. L. E. Fellows, Judge. ActioN to recover damages, caused by a change in the surface of a street. There was a trial to a jury, and a verdict and judgment in favor of plaintiffs. The defendant appeals.

<p>Taxation: payment under pkotest: recovery. Money volun-1 tarily paid under a claim of right and with knowledge of the facts, cannot be recovered back oh the ground of invalidity of the claim, though paid under protest; but payment, the result of coercion or duress, may be recovered.</p> <p>Redemption: rights op purchaser. The purchaser at a sale for 2 a void tax, without notice of such invalidity, is guilty of no wrong against the owner of the property, and may retain as against such owner, money paid to redeem, although he knows it was so paid under protest.</p> <p>Redemption: uabiuty of purchaser. A city may be the agent 8 of the purchaser of property at a tax sale for the purpose of receiving the redemption money paid by the owner, but such fact will not render-the purchaser liable for the wrongful act of the city in selling the land, so that a recovery of the redemption money may be had from him.</p>

<p>Appeal from Story District Oourt. — HoN. W. S. Kenyon, AND Hon. J. H. Richard, Judges.</p> <p>On January 1, 1902, the plaintiff filed her petition alleging that defendant had promised to marry her, and because of his failure to comply she had been greatly damaged. The original notice was duly served in Story county, and on' the 14th day of the same month the defendant filed a motion to set aside the service, and that he be discharged on three grounds: (1) That the court had no jurisdiction of his person; (2) that the service of the notice conferred no such jurisdiction; and (3) that defendant, when served with the original notice, was exempt from service of civil process or notice in Iowa, and especially in Story county. This motion was supported by an affidavit of defendant to the effect thatsipce September 1, 1901, he had been a Iona fide resident of Nebraska, with home at Wood River, in that state; tffat at the August, 1901, term of the district court of Story county, two indictments for felonies had been returned by the grand jury against him, on which a requisition had issued by the Governor pf this state; that by virtue thereof he was arrested in Nebraska, and brought to Story county, where he gave bail for his appearance, and then returned to his home; that at the October, 1901, term of court in said county said indictments were set for trial; that for tbe sole and only purpose of attending as a party and as a witness in bis own bebalf be returned from bis borne in Nebraska to Story county on tbe 23d of October 1901, and on that day was put on trial for the offense. charged in one of tbe indictments and acquitted; that thereupon tbe other indictment was dismissed; that be intended and did return to his home at Wood River, Neb., on tbe first railroad train leaving in that direction after these proceedings, but before he could do so tbe original notice herein was served upon him. This motion was overruled, Judge Kenyon then presiding, and at a subsequent term of court default and judgment were entered, Judge Kichard presiding. The defendant appeals.</p>

— Hon. H. M. Towner, Judge. AotioN at law to recover money paid to the defendant as a part of the purchase price of land. There was a directed verdict for the plaintiff, and the defendant appeals.

— HoN. JAMES W. BOL-LINGER, Judge. Action in equity for specific enforcement of an alleged oral contract for the sale of real estate. Decree for plaintiffs, and defendant appeals.

<p>Construction of Sewers: abatement of nuisance: evidence. 1 The fact that a city constructs a sewer pursuant to general legislative authority, which does not prescribe the manner of construction or that the wort is done under the direction of stilled engineers, will not relieve the city from liability to a peremptory writ for the abatement of a nuisance created by the construction. Evidence considered and held to show a nuisance.</p> <p>Sewers; abatement of nuisance. The fact that the main artery 2 of a sewerage system crosses private property, will not defeat a peremptory writ ordering the abatement of a nuisance arising from the manner of its construction, in the absence of a showing of objection by the property owner to be affected by the writ.</p> <p>Nuisance: abatement. Evidence considered and held insuffl-3 cient to show that plaintiffs contributed to the nuisance complained of, to a degree sufficient to preclude an order abating the same.</p>

<p>Dogs Running at Large: punishment op owner:- ordinances. Code, section 707, not only authorizes a city ordinance providing for the destruction of dogs running at large, unmuzzled, but such ordinance may also provide that the owner of the dog so running at large, ■ shall be guilty of a misdemeanor and punished accordingly.</p>

— Hon. A. D. Bailie, Judge. Action by plaintiff on contract for commission on sale of land. The following is the contract: “Sioux Rapids, Iowa, July 26, 1901. F. W. Kidman has authority to bind me in contract to sell real estate in. Buena Vista County, Iowa, described as the N. of S. W. ¿ of section 20, township 92, range 86, owned by me, for $5,400.00, payable $2,500.00 in cash, balance to suit purchaser.

— Hon. Frank W. Eichelberger, Judge. Action to recover damages for a personal injury. At the time the injury was received the plaintiff was about seventy years of age, and, aside from being slightly deaf, was in the full possession of his mental and physical powers. He reached Oskaloosa over the defendant’s road about seven o’clock in the morning on his way to Hedrick, to reach which place he had to change trains at Oskaloosa and wait until about half past eleven o’clock.

<p>Appeal from Story District Court. — Hon. W. S. Kenyon, , Judge.</p> <p>Action on breach of warranty in the sale of a stallion. Verdict and judgment for plaintiff. Defendant appeals,.</p>

<p>Appeal from Guthrie District Court. — Hon. J. H. Apple-gate, Judge.</p> <p>Suit in equity to enjoin an alleged nuisance in a highway, and to recover damages suffered by plaintiff on account thereof. Defendants admit there is a highway at the place in question, but claim that a fence erected by them, which is the nuisance complained of, is on the south line of said highway, thirty-three feet from the center thereof, which is the true^line between sections 1 and 12 in a certain township of Guthrie county. On the issues joined, the trial court dismissed plaintiff’s petition, and he appeals.</p>

— Hon. J. H. Richards, Judge. Action to recover damages occasioned by the diversion of water from its natural course on the plaintiff’s l^and. The issues are more fully stated in the ■ opinion of the court on the former, appeal, found in 114 Iowa, 734. Judgment was rendered against defendant, and he appeals.

A. W. Wilkinson, Judge. This is an action brought to recover double damages for the killing of a mule. There was a verdict and judgment for the plaintiff, and the defendant appeals.—

<p>Appeal from Polk District Court. — Hon. O. A. Bishop, Judge.</p> <p>Action for $238.53 on account of bay and straw sold defendants. The answer admitted the purchase at the prices stated, but alleged that delivery was to be made in Des Moines, and that freight charges to that point should be deducted. The defendants also pleaded that a settlement was had June 6, 1901, at which $62.50 w.as found to be owing plaintiff; that $25 of this was paid at the time, and $13.09 subsequently for freight, which was included in the account; thab later $100 was sent plaintiff, of which $24.41 was in.payment of the balance and $75.59 advanced on future shipments. This last amount was demanded in a counterclaim. There was a trial to the jury, and a verdict and judgment for the amount claimed in the petition. The defendants appeal.</p>

<p>Railroads: injury to teamster: contributory negligence. The 1 driver of an express wagon, injured hy his team which became frightened hy a passing train, is not guilty of contributory negligence as a matter of law, by failing to keep a constant outlook for the train; nor in laying down his reins while loading his wagon without taking the precaution to hitch the team; nor in attempting to prevent the escape of the frightened horses.</p> <p>Instructions. Where there is no evidence to support an issue made 2 hythe pleadings, refusal to instruct in relation thereto is not error.</p> <p>Instructions; operation of train: negligence. An instruction 3 that it is the duty of trainmen, when operating a train along a public street in a city, which is crossed by other streets at short intervals, to continuously ring the bell, and that an omission of this duty constitutes negligence, is in conformity . with Code, section 2072.</p> <p>Crossings: duty to sound bell. The requirement of Code, 4 section 2072, that the bell signal of san approaching train shall be given at all crossings," is not only for the benefit of those about to cross the track, but those lawfully using teams near the track.</p>

— Hon. E. W. Eichel-BERGER, Judge. This is a contest over the probate of the last will and testament of J. W. Townsend, deceased. The contestant, who is a granddaughter of the deceased, admits the execution of the will, and that the testator was of sound mind, but claims that he was unduly influenced to make it by the beneficiaries therein named, who are the widow and children of the deceased.

<p>Appeal from Hardin District Court. — HoN. W. S. Kenyon, Judge.</p> <p>AotioN for partnership accounting. Decree for plaintiff. Defendant appeals.</p>

<p>Appeal from Dallas District Court. — Hon. J. H. Apple-gate, Judge.</p> <p>Action against defendant, a life insurance associa tion, on a certificate of membership of one Patrick K. Thornburg, in favor of plaintiff as beneficiary. Trial without jury. Judgment for plaintiff for the amount named in the certificate. Defendant appeals.</p>

<p>Deed : signature : acknowledgment : impeachment : evidence. .To 1 overcome the presumption in favor of the genuineness of a signature and certificate of acknowledgment to a deed, the proof must he clear. Evidence considered and held insufficient.</p>

— HoN. JOHN F. Scott, Judge. Suit in equity for the specific performance of a contract for the sale of real estate. The trial court rendered a decree as prayed, and defendant appeals.

— Hon. H. M. Towner, Judge. Prior to July 1, 1893, the defendant Beid was engaged in the agricultural implement business in Corning, Iowa. On the 1st day of November; 1892, Beid and the Bock Island Plow Company entered into a written contract by the terms of which the plow company sold to Beid fifty hay loaders, at $50 each, to be delivered in 1893.

Appeal -from Jasper District Court. — HoN. A. N. Dewey, Judge. Action at law for the recovery of damages. Facts stated in the opinion. Judgment for the defendants upon a directed verdict, and plaintiff appeals.

Oertioraei proceedings in this court to review the action of the defendant while acting as judge of the district court for the Sixth Judicial District of Iowa in and for Mahaska county, in adjudging plaintiff guilty of contempt in refusing to answer questions propounded to him in a supplemental proceeding instituted to discover property on which an attachment might be levied.

— -Horn W. G. Clem-ENTS, Judge. The plaintiff was the publisher of the Oskaloosa Weekly Journal, and in January, 1900, he made a written application for the selection of that paper as one of the official papers of the county for that year.

— IIon. A. J. House, Judge. ON tbe 25tb day of March, 1899, P. V. Yan Patten filed two claims against the estate of Prank P. Yan Patten, deceased.

— How. W. B. Quar-toN, Judge. ActioN to recover commissions as agent for the sale of land. A demurrer to plaintiff’s petition was sustained, and judgment rendered for defendant, from which plaintiff appeals.

— 'HoN. A. W. WiLKiN-soN, Judge. Suit in equity to .quiet plaintiff’s title to a certain forty acres of land in Warren county. Defendant Sexton claims under a tax title acquired in the year 1867. The other defendants were in possession of the land under Sexton, having gone into the occupancy of the same in April of the year 1900.

— HoN. JohN F. Oliveb, Judge. ActioN to recover damages on account of a personal injury. The defendant, a corporation, was engaged at the time in question in conducting a.wholesale grocery house in Sheldon. The building in which the business was carried on consisted of two stories and a basement.

<p>Mortgage Foreclosure: Redemption by assignee of mortgagor. The grantee of a mortgagor after foreclosure, who redeems therefrom takes the property free from the lien of the mortgagor’s judgment creditor who was a party to the foreclosure and failed to redeem, and it is immaterial whether such grantee makes redemption before or after the foreclosure sale. This right of an assignee of a mortgagor to redeem existed independent of statute and is not restricted by Code, section 4061.</p>

— Hon. W. S. Kenyon, Judge. Action at law to recover tbe purchase price of certain binders, sold and delivered to the defendants. Defendants pleaded a rescission of the contract, and an offer to return tbe goods, based upon an agreement between them and plaintiff’s agent. The case was tried to a jury, resulting in a verdict and judgment for the defendants, and plaintiff appeals. — ■

— HoN. Joi-iN E. Scott, Judge. • Suit in equity to enjoin the maintenance and continuance of a nuisance. Erom a decree dismissing plaintiff’s petition, he appeals.

— HoN. A. R. Dewet, Judge. ActtoN to have the title of certain land quieted in 'Abigail Springer, one of the plaintiffs. The decree quiets title in said Abigail Springer to an undivided three-fifths of the land, and in Hobert Huit and Elizabeth Bowen to an undivided one-fifth, interest as to each of them. Plaintiffs appeal.

— HoN. Johh T. Scott., Judge. The plaintiff obtained a judgment against Frederick Lisker in Polk county in October, 1873. Lisker was then, and up to the time of his death in December, 1900, a resident of Poweshiek county.

Appeal' from Johnson District Court. — HoN. H. M. Rem-ley, Judge. ActioN in equity to have set aside and declared void a deeree rendered by the district court of Johnson county quieting title to certain real estate in said county as against this plaintiff in Rebecca Ruppin, through whom defendants claim title, and now quiet title in plaintiff to said property as against defendants. Decree for plaintiff, from which defendants appeal.

— Hón. A. W. Wilkinson, Judge. On tbe 23d day of August, 1899, tbe defendant issued plaintiff’s policy, covering bis stock, of goods against fire and tornado during tbe four years following. Mucb of tbe stock was destroyed by fire July 4, 1901. Due notice was given, and on tbe 12tb day of tbe same month tbe adjusters of this and four other companies met tbe plaintiff at Dallas Center.

— HoN. J. H. Eichaeds, Judge. Action at law to recover damages for the death of Lawrence Wagner, deceased, due, as is alleged, to the negligence of the defendant in the operation of one of its trains in the city of Des Moines. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— IloN. Wm. Hutch» iNsoN, Judge. Action upon a promissory note for the sum of $3,766, dated September 20, 1899, due on or before May 20, 1900, given to plaintiffs, as payees, by tbe defendant C. W. Wheeler as principal and his codefendant, Martha A. Wheeler, as surety. Two payments were made and indorsed on the note, concerning which there is no dispute — February 23, 1900, $945.41; April 4, 1900, $62.58.

— Host. J. W. BolliNgee, Judge. Suit in equity to set aside a deed made by August Euge to Henry Nealand, his step-son, on the grounds that the grantor was of unsound mind at the time the deed was executed, that it was without consideration, and obtained by false and fraudulent representations. The trial court refused to set aside the deed, but gave plaintiff a money judgment for $750. Defendant appeals.

— HoN. W. G. Clem-ENTS, Judge. . Aw appeal from the assessment of a contract to convey land.

— Hon. W. S. Withbow, Judge. Action for damages on account of negligence in the transmission of a telegraphic message. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. M. J. Wade, Judge. Suit iu equity for tbe specific performance of a contract for tbe conveyance of real estate. Tbe trial court granted tbe relief asked, and defendants appeal.

— Hon. W. F. Brannan, Judge. Action to recover damages for the malicious prosecution of a civil action aided by attachment. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. H. M. Towner, Judge. ActioN on two promissory notes, each for $215.

— IIoN. A. J. House, ' Judge. The plaintiff caused certain real estate to be attached which the intervener claimed to own. The case was tried in equity, and there was a decree for the intervener. The plaintiff appeals.

— Hon. A. W. Wixkin-son, Judge. Action in equity to cancel sheriffs sale of lots because of being exempt therefrom. The petition was dismissed, and plaintiff appeals.

<p>Bills and Notes: contemporaneous agreement: partnership. In an action on a promissory note, given by plaintiff to defendant for his interest in joint property, with a contemporaneous agreement that in case the note was not paid, plaintiff might renew his right and interest in the goods, it is held that the fact that an unsettled partnership relation existed between the parties was not a defense to the note; that the maturity of the note did not of itself restore to plaintiff his-interest in the property and relieve defendant of liability on -the note; that there was no evidence of a resumption by plaintiff of a partnership interest in the property and that a. verdict was properly directed in his favor.</p>

— IIoN. N. W. Macy, ■ Judge. Ih 1901 the plaintiff was the local agent at Panama, Iowa, of the Plano Manufacturing Company, of Chicago, Ill. April 13th of that year the defendant signed a written order for a Plano binder, and delivered it to one Campbell, who was a canvasser sent out by the Plano people to assist the plaintiff. This order was taken on one of the blanks furnished by the company, and provided that it was subject to their approval in Chicago.

'Appeal from Shelby District Court. — IIoN. A. B. Tiiobneli,, Judge. ActioN in equity to enjoin the maintenance by defendant of a fence obstructing a 'highway adjoining plaintiff’s premises. The issue raised by defendant was as to the true location of the highway, his contention being that it was in fact located on land claimed by plaintiff, and that the highway as contended for by plaintiff was in reality a part of defendant’s premises. Decree for defendant.

— IIoN. A. S. Blaib, Judge. This action was commenced in the court below by Met* rit Stanley. After trial, and after appeal to this-court was perfected, said Stanley died intestate. E. E. Wilson, baying been appointed administrator of the estate of said Stanley, has been substituted as appellee by proper proceedings in this court.

— HoN. M. J. Wake, Judge. ^ Suit to recover for personal services rendered tbe defendant. Trial to a jury, and verdict and judgment for tbe plaintiff. Tbe defendant appeals.

— HoN. W. S. KeN-YON, Judge. This is a contest over tbe probate of wbat is claimed to be tbe last will and testament of Tolman Wiltsey, deceased.

— HoN. J. K. Whitaker, Judge. Motion to recover damages for a personal injury, occasioned, as alleged, by a defective sidewalk. There was a trial to jury, verdict and judgment in favor of plaintiff, and defendant appeals.

— Hon. H. M. Remxey, Judge. Suit at law to recover damages for a breach of contract There was a directed verdict for the defendant. The plaintiff appeals.

<p>Appeal from Boone District Court. — HoN. W. S. Kenyon, Judge.</p> <p>AssessmeNT of damages in proceedings to condemn right of way. Defendant appeals.</p>

— HoN. W. B. Greek, Judge. Suit in equity to restrain tbe levy of an execution and the enforcement of a judgment rendered by a justice of tbe peace of Pottawattamie county, Iowa, against a non-resident of that county, and afterwards transeripted to tbe district court of Pottawattamie county. The' trial court dismissed tbe petition at plaintiff’s cost, and be appeals.

Appeal - from Sioux District Court. — Hon. (xeor&e W. WaKefield, Judge. ActioN by plaintiff, as trustee of Frank T. Walker, a bankrupt, to set aside a conveyance of property made within four months preceding the filing of the petition in bankruptcy. Decree for defendants. Plaintiff appeals.

— HoN. M. A. ROBERTS, Judge. ActioN in equity to set aside tbe cancellation of a mortgage upon real estate, and to reinstate tbe lien thereof. Decree for plaintiff, and defendant appeals

— HoN. William IIutchiNson, Judge. Christian Jacobson died February 6, 1901, and his will was admitted to probate March 19th of the same year. On that day Thomas A. Kinney filed his claim against the estate, alleging that he had loaned deceased $412.50 August 24, 1900. The executors interposed a general denial, and the cause was tried to a jury September 20, 1901. The claim was established, and the executors appeal.

— Hon. William Hutchinson, Judge. Suit in equity for the specific performance of an alleged agreement for the sale of real estate. The trial court dismissed plaintiff’s petition, and he appeals.

— Hon. Feed O’Donnell, Judge. ActioN to recover for injuries received by plaintiff’s intestate, a boy of about nine years of age, wbo fell from a sidewalk in the business part of defendant city to the gutter, and died immediately as a result of such fall. There was a verdict for the defendant. The court, on plaintiff’s motion, granted a new trial, and defendant now appeals from that order.

— HoN. O. D. WlIEELER, Judge. The defendants'Paxton & Gallagher sued out a writ of attachment against the property of their debtor, which was levied by the plaintiff upon a stock of goods. Thereafter a third person, E. Myers, served notice on him of the ownership of the goods levied upon, and Paxton & Gallagher thereupon furnished him an indemnifying bond according to the provisions of sections 3906, 3991, and 3992 of the Oode.

<p>A.ppeal from Polk District Court. — Host. Chakles A. Bishop, Judge.</p> <p>The defendant appeals from a judgment for damages.</p>

— PIoN. W. B. Quar-toN, Judge. Action to recover commission alleged to have been earned in finding a purchaser for the defendant’s land. When plaintiff rested, the jury was directed to return a verdict for the defendant. From judgment entered thereon, the plaintiff appeals.

— Hon. JohN F. Oliver, Judge. This action was originally brought at law on the covenants of warranty in a deed. The defendant pleaded an equitable defense, and also a cross-bill, in which she asked for a reformation of the deed, by introducing the reservation of a railway right of way across the land conveyed. The trial court dismissed plaintiff’s petition and reformed the deed as prayed, and plaintiff appeals.

<p>Municipal Bonds: actions: Relief. An equity action which is 3 so changed by amendment as to transform it into a suit at law, may still he tried as in equity, in the absence of a motion to transfer it to the proper form, but the relief can only be that afforded in a law action.</p> <p>Municipal Debt, excess: liability of officers. There is no 2 personal liability of city officials for a municipal indebtedness in excess of the constitutional limitation when the same is contracted by them acting within their jurisdiction and for a lawful purpose.</p>

— IÍON. II. 1VL Towner, Judge. ActioN at law to recover value of a printing press and outfit sold to the defendant. Judgment for plaintiff, and defendant appeals.

— IIon. Geo. AY. AYakeeield, Judge. Action to recover damages for the death of plaintiff’s intestate, wbo died as tlie result of injuries received while in the employ of the Illinois Central Railroad Company as brakeman.

— TIow. Feed O’DoN-Neu, Judge. ActioN to recover for personal injuries received on one of the defendant’s sidewalks. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.—

— Hon. Wm. Hutchinson, Judge. This is an appeal from judgment for defendants, rendered on a directed verdict on a Second trial of the case reported in 114 Iowa, 621. The facts of the case are there sufficiently stated.

<p>Appeal from Dallas District Court. — HoN. A. W. Wilkin-. SON, Judge.</p> <p>The opinion states the case.</p>

— Hon L. E. Eet.-lows, Judge. The plaintiff’s claim against the estate is for $500 had and received by deceased, with interest from January 15, 1896, and was filed August 24, 1901. The case was called for trial February 4, 1902, and the jury waived.

- — HoN. M. C. Matthews, Judge. Action to recover damages for the careless, needless, and willful cutting of trees by the employes of the defendant company. Defendant pleaded that it had the right to use a highway in front of plaintiff’s property, that in so doing it had the right to cut and trim some trees in order to erect its line, and denied any careless or needless cutting.

— Hon. M. J. Wade, Judge. Action on oral contract, to recover one-half net amount obtained from a railroad company for damages to a stallion. Verdict for plaintiff, upon which judgment was entered. The defendant appeals.

- — Hon. L. E. Eel-lows, Judge. Action to enjoin tbe enforcement of an execution beld by W. H. Carter, assignee of J. E. Seiberling & Co., on tbe ground tbat tbe judgment on wbicb tbe execution issued had been fully satisfied. On tbe trial plaintiff’s petition was dismissed for want of equity, and judgment rendered for defendants, from wbicb plaintiff appeals.

— Hon. IV. F. Hutchinson, Judge. Action at law for damages on account of personal injury. Verdict directed for defendant, and plaintiff appeals.

- — HoN. W. . Hutch-iNSON,. Judge. ActioN at law to recover a commission for tbe safe oí real estate. Defendant F. A. McMaster had no interest in the land, but it is claimed he acted as if he had, and that he in fact represented his. sister and co-defendant, who owned, a half interest in the land. Defendant Dewey owned the other half interest.

— Hon. F. W. Eiched-berg-er, Judge. Suit to recover specific personal property or its value, taken from the plaintiffs under a writ of attachment. The defendant alleged a fraudulent purchase of the property by the plaintiffs. There was a trial to a jury, and a verdict and judgment for the plaintiffs. The defendant appeals. — ■

— Hour. J. R. Whitaker, J udge. Action in equity for an injunction to restrain the defendant from maintaining an intoxicating liquor nuisance. Upon final bearing there was a decree granting perpetual injunction, with costs. Defendant appeals.

— Hon. S. II. Elwood, Judge. ActioN to recover damages for libel. Demurrer to plaintiff’s petition was sustained, and, on failure of plaintiff to amend, judgment was rendered for defendant, from which plaintiff appeals.

<p>Conveyances: undue influence: evidence. In an action to set 1 aside conveyances from a husband to his second wife and her son, brought at the instance of his children by his first wife, the evidence is considered and held insufficient to establish undue influence.</p> <p>Conveyances:' mental weakness. Mental or physical weakness 2 will not avoid a conveyance unless it is further shown to have heen the result of the improper influence of others.</p> <p>Conveyances: when void foe mental incapacity: evidence. 3 To avoid, a conveyance solely on the ground of mental incapacity, the mind of the grantor must have so deteriorated as to render him incapable of understanding in a reasonable degree the nature and effect of the instrument. Evidence held insufficient to show such want of capacity as would avoid a deed.</p> <p>Deeds: DELIVERY. Where a trust deed has.been properly execu-4 ted, recorded and placed with the trustee who has endorsed his acceptance of the trust thereon, there has been a complete delivery.</p> <p>Same. Where a conveyance is duly executed and is in the posses-5 sion of the grantee, the presumption of delivery arises and the burden is on the party claiming otherwise to overcome it.</p>

<p>Appeal from Tama District Oourt.-~HoN. Obed Caswell, Judge.</p> <p>This is an action in equity to obtain a construction of tbe will of one Jonathan Wright, deceased, the father of the plaintiffs and of one Ansel K. Wright, whose widow and daughter are the defendants in this action. The court adopted the construction contended for by defendants, and the plaintiffs appeal.</p>

- — IioN. 0. P. Wheeler, Judge. ApplicatioN. of Fremont Benjamin for an order directing the administrator to pay him attorney fees for certain services beneficial to the estate. It was denied, and be appeals.

— Hon. P. R. Gay-nob, Judge. Suit to recover the value of two horses killed by one of the defendant’s trains. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.—

<p>Appeal from, Woodbury District Court. — Hon. ¥m. Hutchinson, Judge.</p> <p>The opinion states the case.</p>

— HoN. J. D. Gamble Judge. * AotioN in equity for an injunction to restrain tbe sale under ’general execution of certain described premises on the ground that such premises constitute the homestead of plaintiff. The property in controversy consists of a fractional part of a lot in the city of Knoxville, on which is situated a two-story brick-veneered building, in size twenty by fifty feet, and fronting on the street line.

Geo. W. Waeeeield, Judge. Action to compel defendant to pay a sum of money alleged t© be due from intervener to plaintiffs for services as attorneys, as to which plaintiffs claim to have bad a lien on money due intervener from defendant at the-time the services were rendered, which money has since been paid by defendant to intervener without satisfying the plaintiff’s lien. Verdict and judgment for plaintiffs. Defendant appeals.—

— IioN. S. M. Elwood, Judge. Suit in equity to quiet the title to tbe vacated portion of a certain street. In 1881 the defendant Fulkerson platted an addition to the plaintiff city, which was duly executed and recorded, and which dedicated to public use Oak street, a street fifty feet wide, running east and west through said addition.

- — HoN. J. B. Whit-AKER, Judge. Suit in equity to enjoin defendants Barnstable from conveying certain lands to their co defendant, Wyatt, to establish plaintiff’s interest in said land, and for general equitable relief. The trial court dismissed plaintiff’s petition, and she appeals.

<p>Appeal to Cedar District Court. — Hon. W. N. Treici-iler, J udge.</p> <p>ActioN to enforce a mechanic’s lien. Decree for plaintiffs, and defendants appeal.</p>

— IIoN. JoiiN F. OliveR, Judge. Action fox damages on account of personal injury. Verdict and judgment for plaintiff, and defendant appeals.

— HoN. S. M. Elwood, Judge. The plaintiff is a judgment creditor of the defendant John E. Pritchard. In January, 1897, John E. Pritchard conveyed certain lands by warranty deed to his codefendant, Wm. C. Pritchard. This is a suit in equity ashing that such conveyance be decreed a mortgage only, and that the plaintiff be permitted to redeem therefrom. There was a trial, and a judgment for the defendants. The plaintiff appeals.'

~ — HoN. S. M. Enwoon, Judge. B. O. Clark filed a claim for attorney’s fees with the clerk of the district court against 1VL F. Sayre, as administrator of the estate of G. R. Sayre, deceased. The administrator demurred to the claim, and his demurrer was sustained. Claimant appeals from the ruling.-

<p>Appeal from Pollo Dictrict Court. — Hon. C. P. Holmes. Judge.</p> <p>ActioN for damages on account of alleged fraud and deceit. The court having sustained a demurrer to the petition, the plaintiff elected to stand upon its pleading, and from a judgment dismissing its action it appeals to this court.</p>

<p>Appeal from Jones District Court. — IIoN. FT. M. Rejiley, Judge.</p> <p>ActioN to set aside a transfer of property made by a bankrupt within four months before his bankruptcy. Decree for plaintiff. Defendants appeal.</p>

■ — -HoN. Z. A. Ciiuroh, Judge. ActioN in equity for an injunction, for an accounting, and other equitable relief. On motion of defendants, the court struck out many of the allegations of plaintiff’s petition. Thereafter the defendants answered,' and to the answer plaintiff filed a demurrer, which was overruled. Plaintiff elected to stand upon its demurrer, and refused to plead further.

— IíoN. Wm. G-. Thomp- ' SON, Judge. On the 10th day of June, 1901, a refrigerator car loaded with.dressed beef, the property of the defendant, was standing on a side track in the city of Cedar Rapids near the defendant’s local office.

<p>Appeal from Linn District Court. — Hon. Wm. G. Thompson, Judge.</p> <p>Tiie opinion states the case.</p>

<p>Appeal from Geclar District Gourt. — PLoN. W. N. Tbeich* ler, Judge.</p> <p>This is a contest over the final report of 0. 0. Pennock, as administrator of .the estate of his son, S. E. Pennock, deceased. Ruth Pennock, widow of S. E. Pennock, filed objections thereto, which were overruled, and the final report was approved. The objector appeals.</p>

— HoN. H. M. Remxey, Judge. Suit on a promissory note executed and due in 1884. A demurrer to the petition was sustained, and a judgment rendered for the defendant. The plaintiff appeals. — ■

— Hon. H. M. Kemley, Judge. This is an appeal from tbe action of the city council of the city of Marion, sitting as a board of review, in raising the taxation assessment of certain real estate situated in said city, and of which the parties named as defendants claim to be the owners. The clerk of the district court erroneously docketéd the appeal; - the city council being designated as plaintiff, and the property owners as defendants.

<p>Appeal from Polk District' Court. — Hon. Wm. H. McHenry, Judge.</p> <p>Action to recover damages for personal injuries received by plaintiff while employed on defendant’s premises. At the close of plaintiff’s evidence the court, on motion, directed a verdict for defendant, and from the judgment thereon plaintiff appeals.</p>

<p>Injury from Defective Walk: pleadings: motion to make specific). 1 In an action for injuries received from a defective sidewalk, tlie petition is held not vulnerable to a motion for a more specific statement of the defect; and a refusal to require plaintiff to make a further allegation that his attention was diverted from the defect in the walk was not ground for a reversal, as there was no evidence of that fact; nor was it error to deny a more specific statement that plaintiff received permanent injury, where the only allegation or evidence was that plaintiff’s wrist was. broken, causing pain and anguish, and that such injury was permanent.</p> <p>Motion for Directed Verdict: evidence. In an action for an injury 2 froifr a defective walk, the evidence is considered and held not error to refuse to direct a verdict for defendant on the ground of failure to show that the town ordered or built the walk or had notice of the defect, or that the injury was the proximate result, of the defect.</p> <p>Contributory Negligence. Where one exercises due care in pass-3 ing over a defective sidewalk, he is not to be held chargeable with contributory negligence as a matter of law.</p>

— HoN. H. M. KeMley, Judge. ActioN to recover compensation for personal services under a contract of employment. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

- — IíoN. J. Ií. Apple-gate, Judge. ActioN to recover damages arising out of an alleged breach of the warranty in a deed conveying real estate. A demurrer addressed to the petition was overruled, and, the defendant electing to stand upon the ruling, and refusing to plead further, there was judgment against him for the amount of plaintiffs demand with costs. From this judgment he appeals.

<p>Slander: words actionable PER SB; maleoe: presumption: in-1 struotion. Words charging another with being afflicted with a venereal disease are actionable per se, and proof of their utterance establishes malice without other evidence; and an instruction that malice must he established by a preponderance of the evidence is error, which is not cured by the statement in another paragraph that it may be inferred from facts and circumstances without direct proof.</p> <p>Withdrawn Pleadings: effect in evidence. Allegations of a with--2 drawn pleading introduced by the opposite party are not presumed to be true, but should be considered simply as affecting the pleader’s contradictory testimony.</p>

<p>Indemnity Insurance: CONSTRUCTION of contract: liability to employe. Where the contract of a guaranty company with an employer provided that no assignment of an interest therein could he made without the written consent of the guaranty company, and that no action should lie for a loss unless brought ‘1 by the assured to reimburse him for a loss actually sustained and paid in satisfaction of a judgment after trial of the issue, ’ ’ an unpaid judgment for a personal injury against the employer cannot be enforced in an equitable action by an employe against the guaranty company, notwithstanding the provisions of Code, section 4087.</p>

— HoN. Geoege W. Wakeeibld, Judge. DEFENDANT was accused of the crime of rape. Upon, a trial to a jury, be was convicted of the crime charged, and, from the judgment and sentence imposed, appeals.—

- — Eon. James D. Gamble,. Judge. AN indictment was returned, charging the defendant with the crime of assault with intent to murder. He filed a motion to set it aside for tbe reason tbat it was found, in whole or in part, 'upon tbe testimony of bis wife. Tbe motion was sustained, and tbe defendant - was discharged, state appeals.

<p>Appeal from Ciarle District Court. — Hon. R. L. Pabish, Judge.</p> <p>ActioN to recover commission for sale of real property. Verdict for plaintiff, and from judgment thereon defendant appeals.</p>

— HoN. J. D. Gaiíble, Judge. ActioN for criminal conversation. Trial 'to jury, and verdict and judgment for defendant. Plaintiff appeals. — ■

' Appeal from Muscatine District Court. — Iiow. P. B. Wolee, Judge. ActioN in equity brought for an accounting. A statement of tbe issues as made by the pleadings is necessary xo an understanding of the questions made on this appeal.

<p>Negligence: attempt at rescue. One who seeks to rescue another 1 from imminent hanger, thereby imperiling his own life, is not as a matter of law guilty of contributory negligence.</p> <p>Master and Servant: ■ neg-lighenoe. Where an employe rescues a 2 fellow workman from a position of peril and is injured in so doing, he cannot recover from the master for. such injury without establishing negligence on the part of the master respecting himself or co-laborer.</p>

<p>Liens: extinguishment of eight of redemption. Where there is a mortgage and two inferior judgment liens upon the same land, issuance of a sheriff’s deed on an execution sale under the senior judgment,from which the holder of the junior judgment fails to make statutory redemption, cuts off his right to redeem from a sale under the mortgage.</p>

— Hon. W. N. Teeich-lee, Judge. AotioN to recover damages for cutting down tbe street in front of plaintiff’s premises. Tbe court directed a verdict for defendant. From judgment tbereon, plaintiff appeals.

'Appeal from Polls District Court. — IíoN. S. E. Prouty, Judge. ActioN to quiet plaintiff’s title to a lot in tbe city of Des Moines. Defendant Evalyn Allen claimed to be tbe owner thereof under a sheriff’s deed resulting from foreclosure proceedings instituted by her husband and co-defendant to fore-dose a mortgage held by him at the time the decree was rendered. The trial court granted the relief prayed in the petition, and the defendants appeal-

— FIon. W. B. Quae-ton, Judge. ' Suit in equity to recover on notes given for the purchase price of a threshing machine outfit, and to foreclose a chattel mortgage given to secure the Same. Defense and counterclaim, failure of contract and breach of warranty. There was a judgment.for the defendant, from.which the plaintiff appeals.-

— Hon. S. M. Weaver, Judge. ActioN to recover the contract price of a certain machine sold, as alleged, by plaintiff to defendant. The plaintiff at the time in question was represented at Ft. Dodge, this state, by the Mitchell Implement Company as its agent. The defendant is a farmer residing in the vicinity of Ft. Dodge.

<p>Evidence: conclusion. Although a question may call foi 1 the conclusion of a witness, yet its connection and. the sense in which it is understood may render it proper.</p> <p>Agency: INSTRUCTION. In an action to recover cattle where the evi-2 dence fails to show that plaintiff authorized another as his agent to make sales thereof, hut tends to establish the fact that sales were made by the other as the ostensible owner, refusal to submit the question of agency was not error.</p> <p>Replevin: instruction. In an action for replevin of cattle 3 it was not error to refuse an instruction that if plaintiff and another were joint owners a sale by the other would bind the plaintiff, where the court did instruct that if such other had the right to sell under an arrangement with plaintiff he could not recover.</p>

— Horn A. W. ’Wtukik-soN, Judge. AotioN at law to recover commissions for the sale cereal estate. Tbe case was tried to the court, a jury being waived, resulting in a judgment for plaintiff, and defendant appeals.

— IíoN. Charles A. Bishop, Judge. AotioN to recover damages on account of personal injuries to plaintiff’s wife, resulting from being thrown from a buggy on account of a pile of sand in the street in front of tbe premises of the defendant, Mrs. Shockley. Verdict and judgment for plaintiff. Defendant appeals.

<p>Garnishment: liability or garnishee: how determimed. Where a son was garnished on a judgment against the father and answered that prior to the judgment the father gave him certain notes, hut there was no evidence to show that the father at that time was insolvent and no issue was joined on the garnishee’s answer, his liability should have been determined on his answer as given, and evidence as to the father’s insolvency given in a former proceeding to which the son was ' not a party should not have been considered.</p>

— Host. A. H. McVey, Judge. Appeal by tbe defendant, the Home Savings & Trust Company, from an interlocutory decree appointing a receiver in a proceeding in which plaintiff and others, stockholders of the defendant company, ask tbat tbe company be adjudged insolvent and dissolved, and its assets and tbe proceeds thereof, after payment of its debts, be distributed, and ask for an accounting as against E. 0. Spinney, the secretary of the company, and W. II.

<p>Appeal from Polk District Court. — How. S. F. Prouty, Judge.</p> <p>ActioN on account of money alleged to have been obtained by fraud. Decree for defendant. The plaintiff appeals.</p>

<p>Appeal from Tama District Court. — Horr. G. W. Buruham, Judge.</p> <p>Tbe petition states the case.</p>