Volume 125 — Iowa Reports

<p>Practice: evidence. A mere denial that letters written in a foreign 1 language have been correctly translated, where the record contains the letters, is insufficient 'to put the correctness of the translation in issue, even though there is no special proof of their correctness.</p> <p>Fraud: evidence. Evidence considered and held to show that a sister 2 of a decedent was induced, by the false representations of the administrator, to. convey to him her interest in the estate at less than its value.</p> <p>Confidential relation: presumption of fraud. Wherever a fiduciary 3 or confidential relation exists at the time of a transaction, the law .presumes fraud where the party in whom the confidence is reposed obtains from the other, in his own interest, an inconscionable contract.</p> <p>Confidential relation: evidence. Family relationship alone will not 4 raise a presumption of fraud in a contract between the parties, but is a strong circumstance to be considered in connection with the other evidence of trust and confidence. Evidence considered and held to establish a confidential relation.</p> <p>Principal and agent: fraud. An agent who purchases from his prin5 cipal the subject of the agency is held to a strict accountability for the truth of his representations concerning it. Evidence considered and held to establish the relation of principal and agent.</p> <p>Trusts: possession of land by administrator.' Where an adminis6 trator, in the absence of an heir or devisee, takes possession of real property and receives the rents and profits, he is chargeable, at least to the extent of the rents, as a trustee.</p> <p>Fraud: representations of title. The representation of an adminis7 trator made to an heir residing in a foreign country, with whom a confidential relation exists, for the purpose of inducing a sale to him, that her title to the real property of the estate is subject to a life estate in another, is not a conclusion of law but the statement of a fact, which if false will support a charge of fraud.</p> <p>Rescission: tender. Where it is sought to avoid a sale of land on 8 the ground of fraud, a tender in open court of the writings in relation thereto and waiver of all claim thereon which is made of record, is a sufficient rescission of the contract to authorize the relief.</p> <p>Specific performance. Specific performance of a contract to sell land 9 will not be decreed where there is any trace of fraud.</p>

— JIon. M. O. Matthews, Judge. Suit in equity to recover of the defendant Lee, for the benefit of the stockholders in the defendant company, the sum of $2,000, alleged to be due the company from him. A general statement of the case will be found in Dillon v. Lee, 110 Iowa, 156, and it is not necessary to repeat it here. After the final decision in the former case, this suit was brought and prosecuted to a judgment in favor of the defendants, from which the plaintiff’s appeal.

— Hon. Obed Caswell, Judge. As its name indicates, the plaintiff is a building and loan association organized and doing business under the laws of this State. In January, 1894, the defendants Berlau, who are husband and wife, borrowed of the plaintiff the sum of $500, for which amount they executed their joint note and secured the same by a mortgage on real property.

<p>School township bonds: adjudication: issues of law. The judg1 ment of a federal court, based on the legal conclusion that a school district is estopped, by the recitals in its bonds, from setting up certain defenses in a suit on the coupons attached to the bonds, is an adjudication of the same defenses in a state court in an action between the same parties on the bonds,</p> <p>Interest: computation from maturity of contract. While the rate 2 of interest provided in a contract continues after maturity, a stipulation as to semiannual computations thereof has no application after its maturity in the'absence of an express agreement to that effect, notwithstanding the provisions of Code, section 3039.</p> <p>Appeal: direction for entry of judgment. Where the facts are suffi3 ciently found by the trial court, and the judgment reached is an erroneous application of the law, the appellate court, on reversal, may direct the. lower court to enter judgment without retrial.</p>

<p>Appeal from Benton District Court.— Hon, Geo. W. Burn-ham, J udge.</p> <p>Action to recover commission for sale of real estate. Directed, verdict for defendant, and from judgment thereon plaintiff appeals.</p>

— Hon. W. S. Kenyon, Judge. Action at law to recover damages for personal injuries received by plaintiff, due, as is alleged, to defendant’s negligence in maintaining an exit from one of its terminals. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— Hon. J. R. Whitaker, Judge. On application of plaintiff, as administrator, the court ordered the sale of a portion only of a tract of land owned by the deceased at the time of her death for the payment of a claim filed against the estate, which there was no personal property to satisfy, holding that the balance of the tract had been the homestead of the deceased, and descended to her heirs, who wére made defendants' in the proceeding, free from decedent’s debts.

<p>Actions: consolidation : equity jurisdiction-. Where two suits 1 were pending at the same time, one at law and the other in equity, between the same parties, and based substantially upon identical transactions involving equitable issues which would dispose of the entire controversy, the cases were properly consolidated and tried as an equitable action.</p> <p>Conversion: accounting: evidence. In an action for the conver2 sion of personal property, an accounting and the cancellation of certain indebtedness, the evidence is reviewed, and it is held that there was neither a conversion of the property nor an agreement that the proceeds of the sale shduld be accepted by defendant in full satisfaction of plaintiff’s indebtedness, to him.</p>

<p>Appeal: notice. A notice of appeal to the supreme court is sufficient 1 if it clearly indicates the judgment and court from which the appeal is taken.</p> <p>Appeal: service of notice. A next friend need not be served with 2 a minor’s notice of appeal from a judgment of costs entered against both.</p> <p>Seduction: damages: evidence. The evidence in an action for dam-3 ages for seduction is examined and held sufficient to sustain a verdict for defendant.</p> <p>General reputation: evidence. Evidence of the general reputation of i a witness at the place where he resided three years before the trial, may be shown where it appears that in the interim his residence in various places was so brief as to preclude his acquiring a reputation.</p> <p>Instructions: objection. A plaintiff cannot complain of the meager-5 ness of instructions on the question of damages, where the general verdict was for defendant.</p> <p>New trial: misconduct of juror. The consideration by a jury of 6 any evidence not produced on the trial, which it is reasonably probable influenced the result, is such misconduct as will require a new trial, and may be shown by the affidavits of the jurors. Evidence considered and held to show misconduct.</p>

— Hon. Z. A. Church, Judge. . Action at law to recover rent. The defendants interposed many defenses which, in view of our disposition of the case need not be further noticed. Defendants duly served notice of appeal to this court on September 20, 1901, but there is no recitation in the notice as to what the appeal is from. Ordinarily, this is not necessary, hut, as we shall see,' it has some bearing on this case.

— Hon. W. N. Teeichler, Judge. On the 12th day of March, 1901, the plaintiff bought a stallion of the defendants Lefebure & Sons for $1,300.

<p>Appeal from Cedar Rapids Superior Court.— Hon. J. H. Roti-irock, Judge.</p> <p>Action at law to recover damages for breach of a contract, whereby it is alleged defendants constituted plaintiff their'sole agent to procure a purchaser for a tract of land owned by them. The case was tried to a jury, resulting in a verdict and judgment for plaintiff in the amount of the commission he would have earned had he found a purchaser under the contract. Defendants appeal.</p>

<p>Boundaries: actual monuments: acquiescence: evidence. The 1 actual monuments with reference to which a conveyance is made will control the description, and an adverse holding for ten years to a line recognized by both parties as the true boundary will establish the same by acquiescence. Evidence is considered and "held to show, that the parties to the conveyance intended and understood at that time that one of the boundaries was a certain fence which had been so recognized for more than ten years.</p> <p>Quieting title: decree: parties. Where a city was not a party to '2 an action to quiet title, it was not bound by any determination of the location of its street lines.</p>

— Hon. Obed Caswell, Judge. Action to recover damages for a personal injury. Trial to jury, and verdict and judgment in favor of plaintiff. Defendant appeals.

— Hon. W. N. Treichler, Judge. Suit at law to recover on two certificates of membership issued by the Northwestern Masonic Aid Association on the life of the plaintiff’s father, T. S. Parvin. The facts necessary to an understanding of the questions to be determined in this case are as follows: The Masonic Aid Association was a mutual benefit association incorporated under the laws of the State of Illinois.

<p>Appeal from Linn District Court.— IIon. Wi. Gr. Thompson, Judge.</p> <p>Action on two promissory notes. The defendant pleaded that they were obtained by fraud, etc. Verdict for defendant, upon which judgment was entered, and plaintiff appeals.</p>

<p>Corporations: stock subscriptions: failure of consideration: 1 evidence. Where there was an agreement between incorporators and subscribers to stock in a corporation yet to be formed, that the subscriptions to stock should not be binding until the full amount had been subscribed, evidence tending to show that one of the necessary subscriptions was not genuine, and that there was a private agreement that another should not be paid in full, was sufficient to take the issue of a failure of consideration for notes given to pay for stock, to the jury.</p> <p>Subscriptions to stock: fraud. Where the subscription of an influ2 ential person to the stock of a corporation yet to be formed, was used as an inducement to others to subscribe, and the same was relied upon as being genuine, when in fact such subscriber by a secret agreement was not to pay full price, it amounted to fraud. Evidence considered and held sufficient to require a submission of the issue of fraud to the jury.</p> <p>Subscription to stock: collateral agreement. A collateral agree-3 ment with a subscriber to stock that his subscription should not be collectible except from dividends on the stock, is valid as between the'parties and a complete defense to a suit on notes given for the amount of the - subscription.</p> <p>Bills and notes: bona fide holder: evidence. In an action on 4 promissory notes given by a subscriber to stock in a corporation yet to be formed, the evidence is reviewed and held to show that the officers of plaintiff were chargeable with notice of any agreement made or fraud perpetrated by the agents of the promoters of the corporation, at the time it accepted the notes as collateral security.</p> <p>Bills and notes: burden of proof. In a suit on promissory notes, the 5 burden was on defendant to show that plaintiff’s officers had knowledge, at the time the notes were taken, of an agreement affecting their payment and transfer; but as to want of consideration and fraud in procuring the same, the burden was on plaintiff to show that its officers had no knowledge of these defenses.</p>

— Hon. S. M. El wood, Judge. , On April 12, 1901, at about 11 o’clock p. m., Chas. B. Blackman executed a chattel mortgage to Baxter, Beed & Co. on his stock of groceries and book accounts to secure the payment of a valid indebtedness of $5,000.

— ' Hon. G. H. Scott, Judge. In 1881 the Missouri river, which had been flowing in a northeasterly direction, and then curving around to the south, suddenly abandoned its old channel, and out a new one in the Nebraska side, more directly south. The eastern extremity of the abandoned bed filled with water, and has since been known as “ Lake Manawa.” In 1887 the land bordering on the lake to the north was platted into lots, streets, and alleys.

<p>Appeal from-Decatur District Court.— Hon. H. M. Towner, Judge.</p> <p>Dependant was indicted wi’th Richard Pray and Port Woodard for the larceny of five steers and one cow belonging to one J erry Moran. Richard Pray, being first tried,- was acquitted. Greenland was then tried and convicted, and sentenced to imprisonment in the penitentiary for the term of three years. Prom this sentence he appeals.</p>

— Hon. J. E. Whitaker, Judge. Suit to ’recover damages for a personal injury caused by the obstruction of a public walk'. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. J. R. Whitaker, Judge. This is an appeal from a judgment of the district court on an appeal from an assessment made against the plaintiff by the city council of th.e city óf Ft. Dodge, acting as a board of review. This board ordered an assessment against the plaintiff on moneys and credits in the sum of over $59,000. The tidal court on appeal changed the assessment to “ corporate stock,” and reduced it to something like $48,-000. From this order, plaintiff appeals.

— Hon. A. H. MoVey, Judge. Proceeding by habeas corpus to secure the. release of plaintiff from imprisonment under arrest for the crime of soliciting and securing an application for a building and loan contract in violation of chapter 77 (page 45), of the laws of the Twenty-Ninth General Assembly, prohibiting agents from soliciting or transacting business for an unincorporated building and loan association which has not complied with the provisions of that statute.

— Hon. J. H. Apple-gate, Judge. ' Action oh a fire insurance policy. Trial to the court, and judgment for the plaintiffs. The defendant appeals.

— Hon. Franklin O. Platt, Judge. Action on two bonds executed by Geo. W. Harbin,- as president of the Equitable Mutual Association with the ’United States Fidelity & Guaranty Company as surety. Trial without jury resulted in a judgment as prayed. The defendants appeal.

— Hon. W. B. Quarton, Judge. Suit at law to recover taxes paid on land. The defendant, L. D. Buss, was the actual 'owner of the land upon which the taxes were paid, though he had conveyed the same to Lewis Buss, trustee, as security for a debt to said trustee. C. L. Lund forged deeds which -purported to convey the land from Buss, trustee, .and through such forged conveyances the plaintiff acquired the record title to the land, and went into possession thereof.

— Hon. James D. Smyth, Judge. The petition alleges: That plaintiff is a citizen and taxpayer of the city of Mf. Pleasant, and the defendants mayor and councilmen thereof.

— Hon. Frank W. Eichelberger, Judge. Suit for the partition of a certain 80-acre tract of-land. Defendant Stanton was made a party because he claimed an interest therein, and defendant Breokenridge because he held a mortgage on the entire tract. Defendant Stanton made default, and decree was entered against him.

<p>Appeal from Johnson District Court.— Hon. M. J. Wade, Judge.</p> <p>Action to recover damages for a personal injury, caused, as alleged, by a defective sidewalk. There was trial to a jury, and verdict and judgment for plaintiff. Defendant appeals.</p>

Poweshiek District Court.— Hon. John T. Scott, Judge, Action by plaintiffs,, husband and .wife, for cancellation of a contract and deed for the conveyance of a tract of land, including plaintiffs’ homestead, on the ground of fraud, and to quiet title in plaintiffs.

Appeal front, Monroe District Court.— Hon. F. W. Eichelberger, Judge. The defendant was indicted for murder in the first degree. He was tried on the indictment, and convicted of manslaughter. He appeals.—

— Hon. F. W. Eichelbebger, Judge. Action for damages caused by a collision of plaintiff’s cow with defendant’s engine. The trial resulted in a judgment against defendant, from which it appeals.—

<p>Appeal from Wayne District Court.— Hon. H. M. Towner, Judge.</p> <p>Suit in equity to quiet plaintiffs’ title to certain real estate in Wayne county. Defendants’ demurrer to the petition was sustained, and plaintiffs appeal.—</p>

— Hon. James W. Bollinger, Judge. Action to recover for personal injuries received by plaintiff while in the defendant’s employ. Verdict and judgment for plaintiff. -Defendant appeals.—

— IIon. S. M. El wood, Judge. On July 7, 1899, the defendant school district entered into a contract in writing with defendant C. H. Weaver for the erection of a public school house, the material provisions of such contract being as follows: The building to be constructed and completed according to architect’s plans and specifications; the said Weaver-to furnish all labor and material and' to be paid therefor by the district the sum of $16,179, payments of such contract…

— Hon. O. A. Byington, Judge. Action at law to recover the value of a horse alleged to have been killed by collision with defendant’s train through the negligence of the trainmen. There was a directed verdict for the defendant, and plaintiff appeals.—

— Hon. D. V. Jackson, Judge. The defendant was convicted of breaking and entering a dwelling house in the daytime with intent to commit' larceny therein. He appeals.

— Hon. J. H. Apple-gate, Judge. Action was brought before a justice of the peace, aided by an attachment, to recover an indebtedness of $40.98. Defendant moved for release of money attached by garnishment in the hands of the Chicago', -Milwaukee & St. Paul Railway Company on the ground that he was a married man, and that the sum for which the railroad company was gamishéd was due him as personal earnings, and therefore exempt under the provisions of Code, section 4011.

— Hon. J. H. Richards, Judge; and Appeal from, Clay District Court.— Hon. W. B. Quarton, Judge. By agreement the appeals in tbe eases above entitled were submitted together, and they may be disposed of in one opinion.— In the year 1893 E. G. Morgan died testate in Webster county, this State, and his will was admitted to probate in that county.

<p>Attachment: intervention : election of remedies. Where one intervened in an attachment proceeding under Code, section 3928, claiming the property, with knowledge that the same had been sold as perishable and the proceeds were in the hands of the sheriff, it amounted to an election of remedies precluding a subsequent action for the value of the property.</p>

<p>Landlord and tenant: estovers : right op tenant to firewood. The common law right of a tenant to cut firewood from the premises is in force in this state, but a determination of this right is dependent upon the character of the timber and the prevailing custom.</p>

— Hon. F. JR. Gaynor, J udge. Action at law upon a policy of fire insurance. Dee fense, change in occupancy of the building insured, and failure to make due proof of loss. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

<p>Railroads: negligence: crossing accident. Where it appears that 1 there was nothing to obstruct the view of an approaching train so that had plaintiff looked in the direction of the train he would have discovered it in time to avoid the accident, his testimony that he did look and did not discover it, raises no issue upon ' which he would be entitled to demand a verdict.</p> <p>Contributory negligence. Where one approaches a crossing in plain 2 view of a moving engine with which he is liable to be struck in crossing, and without looking to discover the danger goes forward and is injured, he is guilty of contributory negligence as a matter of law.</p> <p>Evidence: contributory negligence. In an action for injuries re-3 ceived by a street car motorman in colliding with defendant’s engine at a crossing, the evidence is reviewed and held to show such contributory negligence as to preclude recovery.</p> <p>Street railways: employer’s liability. An employe of a street railway 4 company is not one for whose benefit the employer’s liability statute (Code, section 2071) was enacted, even though by the amendment of the Twenty-ninth General Assembly interurban railways were brought within its provisions, but as to him, while operating a street railway within the limits of the city, the rifle exempting the employer from liability for the negligence of a fellow servant obtains.</p> <p>Evidence: negligence of fellow servant: vice principal. In an 5 action for injuries to a motoneer, the evidence is reviewed and held that there was neither a common law liability of the employer for the negligence of a fellow servant, nor was he shown to have been a vice principal.</p>

— Hon. John F. Oliver, Judge. Suit in equity to enforce a written agreement entered into by the plaintiff and defendant, who were at the time it was executed, and are now, husband and wife. It is as follows: “November 2, 1883.

<p>' Appeal from Greene District Court. — - Hon. Z. A. Church, Judge.</p> <p>The opinion states the case.</p>

— Hon. William Hutchinson, Judge. Action to recover damages for the instant death of plaintiff’s wife, due to physical injuries resulting from defendant’s negligence. A demurrer to plaintiff’s petition having been sustained, plaintiff elected to stand on his pleading, and judgment was rendered for defendant, from which plaintiff appeals.

— Hon. M. A. Roberts, Judge. Plaintiff in this action had been indicted in the district court of Appanoose county, charged with the crime of obtaining money by false pretence. Before trial he presented to the presiding judge of said court an application in writing for an order authorizing witnesses to be subpoenaed in his behalf at the expense of the county.

— Hon. A. II. Dewey, Judge. Suit in equity to set aside a deed made by Elizabeth Osborn to defendant Samuel, her son, on or about September 28, 1896, and to quiet plaintiff’s title to two hundred and seventy-six acres of land. Defendants pleaded title in themselves, and in a cross-petition asked that their title be quieted, and that they be given possession of the property. The trial court dismissed plaintiff’s petition, and gave to defendants the relief they demanded.

— Hon. M. A. Roberts, Judge. Such proceedings were had as that ou the 16th day of April, 1902, a sheriff’s jury assessed, the damages for appropriating a right of way by the Iowa & St, Louis Railroad Company across forty acres of Andrew Guinn’s farm at $300. An appeal to the district court was taken by the landowner, and upon trial the damages were increased to $1,584. The company appeals.

<p>Disorderly house: examination of witnesses: explanation by 1 court. Where a witness evidently does not understand the purport of an inquiry, it is proper for the court, even though there is no objection to the question, to instruct the witness concerning the'nature of the information called for.</p> <p>Evidence: nonprejudicial. On a prosecution for keeping a house S of ill fame, where the testimony of a witness is not necessarily derogatory of the place, and to give it a damaging significance it would be necessary for the jury to extract a meaning neither apparent nor fairly inferable, it will not be held prejudicial.</p> <p>House of ill fame: sufficiency of proof. In a prosecution for keep-3 ing a house of ill fame, it is not necessary to show acts of sexual intercourse, but a conviction may be based on proof of facts and circumstances from which the inference of guilt is so strong as to exclude reasonable doubt.</p> <p>Instructions: reasonable doubt : inadvertent use of “ his ” for 4 “ her.” On a separate prosecution of the wife for keeping a house of ill fame, where the husband and wife were jointly indicted, competent evidence of the husband’s conduct respecting the place appeared in the record, and the court in an instruction respecting reasonable doubt, inadvertently used the word “ his ” in place of the proper word “her.” Held to have béen without prej udice.</p> <p>Evidence: general reputation. Proof of the general reputation of 5 women frequenting a place of alleged ill repute, is evidence that the keeper of the house had notice of their character and the nature of the business they were engaged in.</p> <p>Argument: misconduct. Under the record, misconduct of the prose-6 cuting attorney in his closing argument to the j ttry, • is not established.</p>

— Hon. J. W- Bollinger, Judge. In 1901 Jane Westlake, now deceased, who was a resident of Scott county, was, upon examination by the commissioners of insanity of Scott county, found to be of unsound mind, and committed to the hospital for the insane at Mt. Pleasant, where she was confined until her death.

— -Hon. W. G. Thompson, Judge. Suit in equity to enjoin defendant from interfering with plaintiff in his attempt to take possession of and enjoy the use of certain property. A demurrer to the petition was sustained, and plaintiff appeals.

— Hon. Wm. Hutchinson, Judge. Action for damages for failure to perform contract for sale of land. From judgment as prayed, defendants appeal.

— Hon. S. M. Ex wood, Judge. Pxaintiff is the owner of lot 1 in block 15, Gallaher’s Addition to the city of Jefferson, and for many years the same has constituted his homestead. The lot faces Oak street on the east, Maple street on the west, and State 'street extends along the side thereof, each street being eighty feet in width.

— • Hon. G. W. Wake-field, Judge. Action in equity for divorce. The trial court dismissed the bill, and plaintiff appeals.

— Hon. M. J. Wade, Judge. The jury found that deceased was of unsound mind when he executed a paper purporting to be his last will. From judgment thereon, proponents appeal.

— Hon. W. S. Withrow, Judge. Suit in equity to enjoin the defendants,- the city and its officers, from improving a street at the expense of the city, from paying for the sainé out of the general fund; from constructing the improvement, below the established -grade; from using any warrants for paying the expenses of the improvement, and for other equitable relief. The trial court denied the prayer of the petition, and plaintiff appeals.

— Hon. W. G. Clements, J udge. The plaintiff sold to the defendants coal underlying her land, and agi’eed in the contract of sale that the defendants should have two acres of surface land above the coal for a shaft and engine house and for the purpose of dumping the waste of the mine to he operated on said land.

— Hon. jVI. J. Wade, Judge. Action for damages for trespass of defendant’s cattle upon plaintiff’s land, alleged to have been due to the carelessness and neglect of defendant in maintaining and keeping in repair the defendant’s part of the partition fence between the land of plaintiff and that of defendant, and for the negligence and carelessness of defendant in failing to restrain said stock from trespassing on plaintiff’s land.

— Hon. C. Pi Holmes, Judge. Suit in equity to foreclose three assessment certificates issued by the city of Des Moines for the construction of a sewer on Tenth street, and asking a personal judgment against the appellant Oallanan' and a judgment against the city of Des Moines. The undisputed facts in the case are substantially as follows: The appellant Callanan was the owner of lot nine in blocks one, two and three in an addition to the city of Des Moines.

— Hon. Robert Sloan, Judge. Action a.t law upon a judgment rendered by a justice of the peace of the State of California. Defendant pleaded the statute of limitations-, and further averred that no notice of the action before the justice was ever served upon him, and that he did not appear before said justice.

— Hon. O. A. Byington, Judge. Action at law to recover commissions upon the sale of a stock of merchandise. Verdict and judgment for plaintiff, and the defendant appeals.

— Hon. II. M. Towner, J udge. The plaintiffs are respectively tbe surviving widow and the sole surviving child of E. E. Tarbell, who died seised of certain real estate,, and they allege that by the provisions of the will of said deceased they are vested with the complete title to said real estate, the widow having a life estate and the daughter the remainder in fee, and they ask that their title be quieted as against the defendants, who are the sister, mother, and other…

— Hon. Vm. Hutchinson, Judge. Action to set aside a sheriff’s sale of real estate, and to enjoin the issuance of a. sheriff’s deed. There was a decree in favor of plaintiff, and' defendants appeal.

— Hon. Robert Sloan, Judge, The plaintiff is the widow and the defendant the son of Frederick J. Shearer, who died intestate, seised of seventy-four and one-half acres of land. This is a suit in equity, alleging that the plaintiff owns the undivided one-third and the defendant the undivided two-thirds of said land, asking the confirmation of said shares and the partition of the land by metes and bounds.

— .Hon. John F. Oliver, Judge. Suit iu equity to quiet plaintiff’s title to certain lots in the city of Sioux City. His claim thereto is under tax deeds issued by the county treasurer of Woodbury county for taxes for the years 1892 to 1896, inclusive.

— 'Hon. Vm. Hutchinson, Judge. Action at law to recover damages for the death of plaintiff’s husband, due to his intoxication resulting from the unlawful sale of liquors to him by the defendant Peterson. Defendant Schneede is' made a party because of his ownership of the property in which the liquor was sold, but the case was dismissed as to him before submission to the jury.

— Hon. W. G. Clements, Judge. Action at law upon an injunction bond given in a suit wherein defendant L. P. Ballinger was plaintiff and these plaintiffs were defendants. The damages sought to be recovered are loss of time, expense in attending trial, loss of use of property, attorney’s fees, etc. Defendants.’ defense is practically a general denial.

— Hon. Jas. D. Gamble, Judge. Action in equity for an injunction to restrain the continuance of a nuisance, and for damages. Upon hearing, the prayer for injunction was denied, but plaintiff was given judgment for nominal damages, with costs. Both parties appeal. The plaintiff, having first perfected his appeal, will be denominated the appellant.

<p>Appeal from Washington District Court.— Hon. W. G. Clements, Judge.</p> <p>Action to recover collateral inheritance tax. The petition was dismissed, and the State appeals.</p>

<p>Prostitution: construction of statute: evidence. Under Code, section 4943, a conviction may be had under an indictment charging one with having been found in a certain house leading a life of prostitution and lewdness, without proof of actual sexual intercourse. Evidence held sufficient to support conviction.</p>

<p>Wills: revocation by subsequent will: construction. Whether a 1 former will has been revoked in whole or in part by the execution of a subsequent writing, depends upon the intent of the testator as gathered from the instrument of revocation itself; and where the latter instrument'deals only with a portion of the property and there is an express provision of revocation so far only as the two instruments are .inconsistent, they will be construed together and effect given to each so far as possible.</p> <p>Revocation: subsequentt birth of child. Under section 3276, as 2 enacted in the Code of 1897, the birth of a legitimate child subsequent-to the execution of a will and prior to the death of the testator, operates to revoke the will, irrespective of whether provision was made for the child therein, and the right to take advantage of the revocation is not confined to such subsequently born child.</p>

— Hon. W. Gr. Thompson, Judge. Certiorari proceedings to review the action of the executive council of the State, sitting as an assessment board, and for an injunction to restrain the enforcement of an assessment as made by said board upon the properties of the plaintiff corporation.

— Hon. ¥m. Hutchinson, Judge. Suit for an accounting of the proceeds of a sale of land in Texas. The hearing was had on depositions, save the testimony of two or three witnesses. The petition was dismissed, and plaintiffs appeal.

<p>Rape: declarations of trosecutrjx. In a prosecution for assault 1 with intent to commit rape, the declarations of prosecutrix not a part of the res gesté but made when defendant was brought before her for identification, are inadmissible.</p> <p>Corroboration. The testimony,of the prosecutrix alone is not sufficient 2 to connect a defendant with the crime of assault with intent to commit rape. Evidence considered and held insufficient to constitute corroboration as required by Code, section 5488.</p> <p>Corroboration: opportunity. Opportunity alone is not of itself, • 3 under some circumstances, such corroborating evidence tending to connect defendant with the crime of assault with intent to commit rape, as the statute requires.</p> <p>Instructions: included offenses. On a prosecution for assault with 4 intent to commit rape, where the indictment charged the act to have been “ with force and violence ” and the evidence of violence was such as tended to constitute a battery or possibly assault with intent to do great bodily injury, the jury should have been instructed as to the included crimes.</p>

<p>Appeal from Keohulc District Court.— Hon. J. T. Scott. Judge.</p> <p>The plaintiff herein, Chas. Kuhn, Sr., is the father of Chas. Kuhn, Jr., who died on the 4th day of September, 1900, from the effects of poison unlawfully and feloniously administered to him by the appellant, Sarah Kuhn. Slate of Iowa v. Kvlm, 117 Iowa, 216. This is an action in probate, brought by the plaintiff to determine the right of the defendant, Sarah Kuhn, to take the distributive share of her deceased husband’s estate, provided for by section 3366 of the Code. There was a judgment determining the issue adversely to the defendant, and she appeals.</p>

<p>County printing: rules governing compensation. The position of 1 publisher of an official county paper is so analogous to that of an officer, that the rules of law governing the conflicting claims of officers de facto and de jure against the municipality are applicable thereto.</p> <p>County printing: contest: compensation. To authorize recovery 2 against a county for official printing, the publisher must show both title to the appointment as official printer and performance of the service. Under this rule, a publisher cannot have compensation for public printing pending a contest of his right to the position which is finally decided against him, even though the county board acquiesce in the service and his successful competitor has been denied the right of recovery therefor.</p> <p>Same. Under Code, section 441, payment for official county printing 3 is suspended, pending a contest, for the evident purpose of determining the incumbent’s title.</p>

— Hon. O. A. Byington, Judge. The plaintiff was arrested on preliminary information charging bim with having assaulted his wife, Anna Meyers, with intent to inflict great bodily harm. On hearing, he was bound over to the grand jury, and executed a bond for his appearance. Thereafter the surety on the bond delivered him to the sheriff, and he then sued out a writ of habeas corpus. On the return made, a hearing was had, and an order of discharge entered. The State appeals.

— Hon. W. Gf. Clements, Judge. Suit to recover the possession of certain real estate for which plaintiff holds a sheriff’s deed. Defendant pleaded that the land was her homestead, and that plaintiff’s judgment under which the land was sold was not a lien thereon, and she asked that her title thereto be quieted.

<p>Appeal from Emmet District Court.— Hon. A. D. Bailie, Judge</p> <p>The opinion states the ease.</p>

<p>New trial. The granting of a new trial is so peculiarly discretionary 1 with the trial court that its order will not be interfered with in the absence of abuse.</p> <p>Same. An appeal from a judgment will not affect the right to petition 2 for a new trial on the ground of newly discovered evidence, under Code, section 4094.</p> <p>New trial after payment of judgment. The affirmance of a judgment 3 on appeal and payment thereof on execution, is not ground for denying a new trial upon an application based on newly discovered evidence and filed within the year, pursuant to Code,' section 4094.</p> <p>Voluntary payment: restitution. The payment of a judgment on 4 execution is not voluntary, and does not .operate as a waiver of the right to restitution.</p> <p>New trial: stay of appellate proceedings. Where the appeal from a 5 judgment is not determinative of the rights of the parties as disclosed in the proceedings for a new trial, failure to procure a continuance or stay of the appellate proceedings will not affect the right to a new trial.</p>

—IIon. A. J. House, Judge. Prosecution for rape, committed, as alleged, upon a female child under the age of 15 years. Thpre was a verdict of guilty- as charged, and judgment on the verdict. Defendant appeals.

— > Hon. O. A. Byington, Judge. The. defendant was tried on an indictment charging him with an assault with intent to commit murder, and was convicted of an assault with intent to inflict a great bodily injury. From a judgment on the verdict, he appeals.—

<p>Appeal from Wapello District Gourt.— Hon. Robert Sloan, Judge.</p> <p>Deeendant was convicted of rape, and sentenced to imprisonment in tbe penitentiary for sixteen years, and appeals.</p>

— Hon. A. W. Wilkinson, Judge. Suit in equity to foreclose chattel mortgages given to the plaintiff by the defendant Smith on the 24th day of June, 1901, to secure notes of -the same date, aggregating more than $9,000, and upon which it was alleged there was still due the sum of $4,650.

IIon. W. G. Clements, Judge. The defendant was accused of assault with intent to commit murder, and was convicted of assault with intent to commit manslaughter. He appeals.

— Hon. G. W. Wakefiexd, Judge. Proceedings for the probate of an instrument purporting to be the last will of Christian Jacobson, an unmarried man, about JO years of age, who died February 6, 1901, in Woodbury county, leaving no heirs, so far as known.

<p>Appeal from Polk District Qourt.— Hon. James A. Howe, Judge.</p> <p>Suit in equity to enjoin the collection of a judgment rendered in favor of defendant B. F. Bonniwell & Co. against plaintiff herein by a justice of the peace in and for Polk county, Iowa. A temporary writ of injunction was issued, and, upon the filing of an answer, defendants moved to dissolve the temporary writ.. The answer was a general denial of the allegations of the petition, but plaintiff offered testimony in support of the writ, and at the conclusion of the evidence- the trial court dissolved the injunction and dismissed plaintiff’s petition. Plaintiff appeals.</p>

<p>Appeal from, Hardin District Court.— Hon. J. H. Ricm ard, Judge.</p> <p>The opinion states the case.</p>

(J-rundy District Court.— Hon. A. S. Blair. Judge. Suit to recover a commission for the sale of land. There was a trial to a jury and a verdict and judgment-for the defendant. The plaintiff appeals.

<p>Taxation: redemption notice: defects. In the absence of a show-1 ing that a person not the owner of land sold for taxes was in the actual occupancy thereof, alleged defects in the redemption notice served op him are immaterial.</p> <p>Same. Failure of the return of service of notice to redeem from a tax 2 sale to state either the time or place of service renders the notice insufficient under Code, section 1441.</p>

— Hon. J. W. Bollinger, Judge. Action to recover commission for the sale of land. From a judgment against him for costs on a directed verdict, the plaintiff appeals.

-^— Hon. F. W. Eichelbérger, Judge. Action to recover damages for a personal injury. The facts, so far as material, will be found stated in the opinion. From a verdict and judgment in favor of plaintiff, the defendant appeals.

— Hon. Franklin C. Platt, Judge. Action for damages. Verdict was directed for the defendant,. and judgment rendered thereon. The plaintiff appeals.

<p>Appeal from Blachhawlc District Court.— Hon. F. C. Platt, Judge.</p> <p>Action to recover back taxes .paid to the defendant county by plaintiff and his wife, which it is alleged were erroneously assessed and exacted. The trial court dismissed the petition, and plaintiff appeals.—</p>

<p>Appeal from Union District Court.— Hon. H. M. Towner, Judge.</p> <p>Action to quiet title. Decree for plaintiff, from which defendant appeals.</p>

— .Hon. F. M. Powers, J udge. Action on a certificate of membership in a fraternal insurance company to recover a specific indemnity for the breaking of a leg. Trial to tbe court without a jury. Judgment for plaintiff, and defendant appeals.

— Hon. W. D. Evans, Judge. Suit at law to recover specific personal property. Trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. M. A. Roberts, Judge. Proceedings under a writ of certiorari. The case is presented by the following statement of facts: Jefferson county lies immediately to the south of Washington county.

— Hon. W. H. McHenry, Judge. Action to recover damages for the death of intestate, Natale Chiesa, occasioned by the negligence of defendant, in whose employment he was working at the time of receiving the injury which caused his death.

— Hon. J. E. Whitaker, Judge. This is an actiou in equity, which would have been denominated under the old chancery practice as a bill of inter-pleader, wherein plaintiff asks the court to adjudge and determine which of the two defendants is entitled to a commission for the sale of certain real estate made by plaintiff to one Hodge.

<p>Bills and notes: waiver of suretyship. A surety may waive his 1 rights as such and make himself a principal as between himself and the creditor.</p> <p>Reformation of instruments: sufficiency of proof. More than a 2 mere preponderance of the evidence is required to reform.a written' instrument; the proof must be clear and satisfactory.</p> <p>Liability of surety: extension of payment. Where a surety on a 3 note consents to be bound as principal, an extension of payment, no matter how long or how many times, will not relieve him from liability in the absence of a specific provision limiting the extension to a single instance.</p>

<p>Appeal from Polk District Court.— Hon. W. H. McHenry, J udge.</p> <p>The plaintiffs, as trustees of the estate of Stephen Sibley, deceased, sued to recover an amount claimed to be due to them as rental for certain premises under the terms of a written contract of conditional sale of the premises to the defendant. The defendant denied the allegations of the petition, and also set up by way of affirmative defense an adjudication in an action to which plaintiffs had been made patties that the contract relied on was illegal and invalid. On the trial defendant introduced evidence of the alleged adjudication. The court rendered judgment for plaintiffs for the amount claimed as rent, and defendant appeals.</p>

The plaintiff was enjoined January 17, 1902, from selling intoxicating liquors or keeping the same for sale on premises described as “ 303 East Main street,” in the city of Ottumwa, “ except such sales are made in strict accordance with the mulct law.” On information that the plaintiff had violated the terms of decree, presented July 14, 1903, the defendant issued a warrant requiring him to be brought before him July 21st following, which was done, and upon hearing the…

The plaintiff was found guilty of violating a permanent decree of injunction, and to test the legality of the proceedings sued out a writ of certiorari in this court.

<p>Contracts: mutuality. A proposition to purchase property.and to pay 1 for the same partly in cash and partly in labor, when accepted and acted upon by the other party, constitutes a contract which is not void for want of mutuality, but is supported by a valuable consideration.</p> <p>Contracts: abandonment: quantum meruit. Under an agreement 2 to purchase a piano and pay therefor' partly in cash and partly in advertising within a specified time, failure to furnish the agreed amount of advertising will not authorize an abandonment of the contract and recovery of judgment for the work done, where the other party is able and willing to perform the agreement.</p>

— Hon. O. A. Byington, Judge. Action for an injunction to restrain defendants from injury to, or trespass upon, the lands of plaintiff. The opinion states the case. From a decree in favor of defendants, the plaintiff appeals.

— Hon. J. it. Whitaker, Judge. Action at law to recover damages for personal injuries received by plaintiff, resulting from his being thrown from an omnibus in consequence of a defect in one of the streets in the defendant city. Defendant’s defense was a general denial. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant ’ appeals.

<p>Appeal from Polk District Court.— Hon. -S. F. Prouty, Judge.</p> <p>Suit at law to 'recover upon an accident insurance policy issued to Alves C. Tillman, wbo was injured in an accident in December,' 1901, while the policy was in force, and who died in February, 1902, as the plaintiff claims, solely from the effects thereof. The defendant is an assessment association, and its by-laws, which form a part of its contract of insurance, provided as follows: “ No benefit shall accrue or be paid * * * for any death * * * or disability happening directly or indirectly, wholly or in part. accidental or otherwise, because of or resulting in or from any disease or bodily or mental infirmity; * * ' * nor shall any benefits whatever accrue or be paid to any member or his beneficiary unless the said member or his beneficiary shall have furnished the association, within the time prescribed by these by-laws, with absolute and satisfactory proof that the death or disability of the said member was purely accidental, and the direct result of the accident, and that the accident was the sole and only cause of the said member’s death or disabilityand, further, that “ mortuary benefits shall accrue when a bodily injury directly caused by external, violent, and accidental means other than •those excepted in these by-laws, shall of itself alone, independently of all other causes, occasion the death of a member within ninety days from the date of such injury.” In its answer the defendant alleged that the death of said Tillman was caused wholly or in part by disease existing prior to the accident, and was not occasioned by violent and accidental. means, within the terms of the policy. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals.</p>

<p>Appeal from Polk District Court.— Hon. James A. Howe, J udge.</p> <p>Action in equity to enjoin the defendant city and its officers from removing a sidewalk and from lowering the grade upon which such walk is constructed. Decree for plaintiffs, and defendants appeal.</p>

Van Burén District Court.— Hon. M. A. , Roberts, Judge. The plaintiff brings this action to recover on four notes, two of wliicb are admitted to have been made by the defendant, and are valid. The other two were executed by the defendant’s treasurer without authority, as claimed, and are contested.

— Hon. A. S. Blair, Judge. Action at law to recover damages for tbe death of Joseph Golinvaux, due to his being struck by one of defendant’s trains at a street crossing'in the city of Waterloo. Trial to a jury. Verdict and judgment for the defendant, and plaintiff appeals.

<p>Corporate stock: ownership: evidence. In an action to recover cer1 tain corporate stock, the evidence is held to support a finding that the same was the property of plaintiff.</p> <p>Conversion of corporate stock: decree: who hay object there-2 to. In an action to recover corporate stock, plaintiff alleged conversion and asked judgment for its value. Plaintiff’s father answered claiming that the stock belonged to his wife, and filed a cross petition to recover a dividend thereon, and asked that the same be decreed to belong to his wife, who also intervened and pleaded the same relief. The corporation and its president, who were parties defendant, answered, denying that the stock had been fraudulently issued and asked that the rival parties litigate their claims and that if it be adjudged that the shares belonged to the plaintiff the certificates produced in court by the wife be cancelled and other certificates issued to the rightful owner. Plaintiff answered the cross petition, admitting the good faith of the issuance of the stock and pleaded “ as in the petition.” Held, that plaintiff not having appealed from a decree directing a cancellation of the stock in the hands of the intervener and the issuance of new stock, the other parties against whom no judgment was entered had no standing to object that the decree should have been for the value of the stock.</p>

A. S, Blair, Judge. Petition in equity in the nature of a creditors’ bill to subject certain real estate held in the name of E. W. Conable and Minnie A. Byrnes to the payment of claims held against E. B. Conable, E. A. Conable, Frank Byrnes, and a partnership composed of said Frank Byrnes and E. B. or E. A. Con-able. There was a decree for plaintiff, subjecting the property to the payment of claims against the bankrupt, and E. W. Conable and Minnie A. Byrnes appeal.—

— How. James A. Howe, Judge. Suit in equity for an accounting, and to enjoin defendants from using a trade mark, being a cigar label bearing in large letters thereon the word “ She,” which was pasted on the inside lid of cigar boxes filled with cigars. The trial court4 granted the relief prayed, and defendants appeal.

— Hon. J. R. Whit-, aker, Judge. Action to recover damages because of diverting surface waters. • Judgment for defendants, from which the plaintiff appeals.

<p>Estates of decedents: who may appeal. A petition filed in a de1 cedent’s estate alleging that moneys deposited in the name of the deceased belonged to the petitioners, to which the heirs intervened denying the allegations, and judgment was entered for the petitioners, the heirs may appeal from the judgment, although not mentioned therein as intervenors.</p> <p>Notice of appeal. A notice of appeal is insufficient as to a party 3 to whom it is not addressed, under Code, section 4114.</p>

-— How. Geo. W. Dyer, Judge. Action to recover damages for breach of contract to replace fruit trees and to recover for services. Motions of defendants for continuance and to strike out one count of petition were overruled, and plaintiff’s right to recover being put in issue by an answer, judgment was rendered against defendant Forgarty, and he appeals.

— Hon. C. P. Holmes, Judge. This is a suit †,0 recover for services rendered under an express contract of employment to sell real estate. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals.—

— -Hon. J. E. Whitaker, Judge. Proceedings for the probate of a will. Contestants made objection to the proposed will on the ground that it was procured by undue influence, and that testator lacked testamentary capacity. There was a special finding by the jury in behalf of contestants on each of these issues, and the court refused to probate the instrument offered as the last will of decedent. The proponent appeals.

— Hon. Action in equity to quiet plaintiff’s title to certain real estate. There was a decree granting the relief prayed as to all defendants except Lizzie A. Cunningham, who was adjudged to be possessed of a contingent dower right in the property. The plaintiff appeals.

— Hon. F. C. Pratt, Judge. Action for partition. The plaintiff alleges that he and the defendant Lillian F. McCray, as the only children and heirs at law of one Sophia A. Luckey, are entitled to equal shares in the real estate described in his petition; Augustus McCray, the other defendant, being joined as the husband of Lillian McCray.

— Hon. J. R. Whitaker, Judge. Suit to recover damages for a simple assault. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hoar James A. Howe, , J udge. Suit in equity to enjoin defendant from using a trademark or trade-name adopted by plaintiff for a brand of cigars manufactured and sold by him in the city of Des Moines and immediate vicinity. The trial court granted the relief asked, and defendant appeals.

— ■ Hon. Geo. W. Dyer, Judge. Action by plaintiff, as widow of Asa E. Eastwood, deceased, against the heirs of her deceased husband for partition of the real estate of which he died seized, consisting of a farm of two hundred and eight-acres, including the homestead.

<p>Appeal from Winneshiek District Gourt.— Hon. A. N. Hobson, Judge.</p> <p>Indictment for indecent exposure. Verdict and judgment of guilty, and defendant appeals.</p>

— Hon. L. F. Fel- . lows, Judge. • Action in equity to restrain the enforcement of a judgment at law under execution. The action was commenced by M. J. Malanaphy and James Daly, formerly partners under the firm name of Malanaphy & Daly, and as. such doing business at Decorah, this State, as dealers in farm implements. Before the trial the said Malanaphy died intestate, and Mary A. Malanaphy, administratrix of his estate, was substituted as plaintiff.

— Hon. J. R. Clyde, Judge. Suit in equity for the partition of land. The plaintiff and H. G. Beadle became the owners of the land in question hy purchase on the 11th day of August, 1897; paying therefor $1,000 in cash, and talcing title thereto subject to mortgages aggregating $1,000 or more.

— Hon. J. II. Richard, Judge. Action at law upon a written contract for work to be performed'bv 'plaintiff for the defendants in Alaska.

<p>Sodomy: sufficiency of indictment. An indictment alleging in 1 substantially the language of the statute that defendant committed the crime against nature, in that he had carnal copulation with a certain boy “ in an opening of the body other than the sexual parts,” was a sufficient description of the opening.</p> <p>Sodomy: sufficiency of proof. Emissio seminis is not an essential 2 element of the crime of sodomy, but proof of penetration alone will support a conviction. Mental weakness: extent of impairment: evidence. Where mental 3 weakness or imbecility is interposed as a defense to crime, and a nonexpert witness has shown himself qualified to testify respecting defendant’s unsoundness of mind, he may be interrogated as to whether the accused was able to appreciate the difference between right and wrong.</p> <p>Evidence: teacher’s record. The record of a teacher showing de4 fendant’s standing in his various studies is admissible, where properly proven, rather than the oral recitals therefrom.</p> <p>Imbecility: acquittal. On a prosecution for sodomy, if the act is 5 shown to have been the result of an insane impulse, or if the accused was unable to comprehend the nature and consequences of his act, he is entitled to an acquittal.</p>

— Hon. A. N. Hob-son, Judge.' The defendant was convicted of having knowingly and wilfully resisted an officer in attempting to serve a search warrant, and appeals.