Volume 126 — Iowa Reports

— HoN. P. M. Powees, • Judge. The plaintiff alleged ownership of the forty acres of land in controversy since June 14, 1901; that defendants are in possession, which they have refused to yield and prayed judgment of ejectment and for damages.

<p>1 Railroads: trespassers: licensees. Where the employes of a packing house company have for years, with the knowledge of the railway company, been accustomed to cross its switch tracks in passing from one building to another about their work, and the railway company has offered no objection or. obstruction to such use, it will be held to have consented thereto, and one of such employes killed while so crossing its tracks was not a trespasser but a licensee.</p> <p>3 Contributory negligence: evidence. In an action for the death of a packing house employe struck by a passing car while crossing defendant’s tracks in going from one building to another, -'the evidence is reviewed and held that he was not gulty of contributory negligence as a matter of law, in not using a crossing or in failing to look and listen for an approaching car, before going onto the tracks.</p>

<p>Appeal from Poweshiek District Court. — Hon. W. G. CLEMENTS, Judge.</p> <p>The defendant was indicted witb others for the crime of rape] and on conviction of assault with intent to commit rape was sentenced to imprisonment in the penitentiary for the term of eight years. From this sentence he appeals.</p>

— How. James A. Howe, Judge. AppellaNt, Marquis, was appointed receiver of the Des Moines Loan & Trust Company, and in November of tbe year 1901 filed his final report and was by the. court discharged. This was an application to set aside the order of discharge, which was sustained by the trial court, and the receiver, Marquis, appeals.—

— HoN. J. N. Whit-AKER, Judge. Suit to recover damages for a personal injury caused by a defective sidewalk. Trial to a jury, and a verdict and judgment for the defendant, from which the plaintiff appeals.—

<p>Appeal from■ Franklin District Üowrt. — IIoN. J. H. Ríoh-ard, Judge.</p> <p>The opinion states the case.—</p>

<p>1 Sidewalks: evidence: change of walk. In an action for injury from an improperly constructed sidewalk, negligence on the part of a city cannot be proven by showing a change in the walk subsequent to the injury, yet if such evidence is competent for other purposes, it will not be discredited because incidentally disclosing such change.</p> <p>2 Same. Where the defendant in an action for a sidewalk injury introduced photographs of the place of accident, it was competent for plaintiff on rebuttal to show changes in the walk between the time of the accident and the taking of the photographs.</p> <p>3 Instructions: future pain and suffering. Where there was evidence that at the time of the trial plaintiff was suffering pain from the injury, an instruction that the jury should allow such damages on account of the future pain and anguish as the evidence warranted, was correct, although the injury was not shown to be permanent.</p> <p>4 Refusal of instruction. Where the negligence charged was the improper construction of a sidewalk and the evidence tended to support the allegation, it was not error to refuse an instruction relating to negligence in failing to repair.</p> <p>5 Negligence: evidence. In an action for injuries from an abrupt approach from a street crossing to the sidewalk, the evidence of the city’s negligence is reviewed and held sufficient to take the case to the jury.'</p>

— Hon. W. H. McHenry, Judge. ActioN on a policy of insurance against loss by fire. •From a judgment for the plaintiff upon a directed verdict, the defendant appeals.—

— HoN. J. H. Richakd, Jtidge. ActioNS in equity to foreclose chattel mortgages. The cases were tried together in the court below, and have been submitted together in this court. They may be disposed of in one opinion.

<p>Appeal from Emmett District Court.— How. W. B. Quar-TON, Judge.</p>

— HoN. W. H. McHenry, Judge. Suit to recover for personal injuries received while in the service of the defendant. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals. — ■

<p>Appeal from Howard District Court.— How. A. N.. HobsoN,’ Judge.</p> <p>DEFENDANT appeals from a conviction and sentence to imprisonment for life for murder in the first degree, committed by administering' poison to an unnamed female infant, four days old. —</p>

<p>Appeal from Page District Court.— TIon. W. R. Green, Judge.</p> <p>The defendant was convicted of the crime of, burglary, and appeals. —</p>

<p>Appeal from Polk District Qourt.— lion. W. H. McHeNry, Judge.</p> <p>Aqtion on note and account against E. S. Downs, with prayer that amount found due be enforced as a lien against his stock in the plaintiff company. This stock was assigned to the defendant Mullen as security for some loans, and he resisted the establishment of any lien in favor of plaintiff, and prayed that its officers; who were made parties, be compelled to transfer the stock to said Mullen on the books of the company. Judgment was entered against Downs as prayed, and the relief sought by plaintiff granted. Mullen appeals.—</p>

— Host. James A. Howe, Judge. Suit in equity to recover damages for the breach of the covenants of warranty in a deed, and asking that the damages awarded be made a lien upon- the property deeded to the appellant in exchange for the land conveyed to ■ the plaintiff.- The defendant counterclaimed for a breach of warranty, and asked the reformation of the conveyance to the plaintiff. Judgment for the plaintiff, from which the defendant appeals.—

— HoN. O. D. Wi-ieeler, Judge. Action at law to recover damages for tbe flooding of plaintiff’s land, due, as is alleged, to tbe negligence of tbe defendant in leaving certain piles in a natural stream crossed ■by one of its bridges and to the negligent throwing of rocks and stones therein. Many defenses were pleaded, which will be noticed in the body of tbe opinion.

— IIon. W. H. McHenry, Judge. ActioN by plaintiff, as administratrix of the estate of L. C. Carpenter, deceased, to recover damages for personal injury to her intestate, resulting in his death. The material facts respecting the accident are not involved in controversy. Tt appears that Carpenter, and one Sisley were engaged in filling with earth the west end of a bridge near the station of De Soto, on the line of the defendant’s railway.

<p>Appeal from Bremer District Court.— HoN. Clifford P. Smith, Judge.</p> <p>The opinion states the case.—</p>

— IIon. A. 1). Bailee, Judge. ' Action at law to recover the amount of certain assessment certificates for a sewer constructed in the defendant city on the theory that these assessment certificates were declared invalid, and the city is liable to the contractor doing’ the work, or to his assignee, for the amount thereof. Several defenses were interposed by tire city, to some of which we shall refer during the course of the opinion.

— íIoN. W. R. Green, Jndge. Suit to recover for services as a shorthand reporter. There was a judgment for the defendant. The plaintiff appeals.—

This is an action instituted in this court to determine the legality of an order that the plaintiff pay a fine of $25, and be imprisoned in jail for a period of one day, unless he shall sooner' return certain personal property to the owner in accordance with the previous order of said court, and pay costs of the proceeding.—

— IioN. J. H. Apple-gate, Judge. ActioN for damages alleged to have resulted from tbe negligent treatment of tbe dislocation of. tbe clavicle. Tbe verdict was for tbe plaintiff, and from judgment thereon defendants appeal.—

<p>1 Bills and Notes: discharge: parol evidence. Where a note was executed in. consideration of other prior agreements between the parties, parol evidence is admissible in an action on the note, to show the entire agreement and that it has been performed.</p> <p>2 Conditional delivery: parol evidence. Where a note is delivered ;as security for a prior parol agreement, its conditional delivery may be shown by parol.</p>

— Hon. W. B. Quarton, Judge. Action at law to recover damages doné by defendant’s dog. Trial to a jury. Directed verdict for the defendant, and plaintiff appeals.—

<p>Appeal from Kossuth District Court.— Hon. W. B. Quar-ton, Judge.</p> <p>The applicant was granted a permit, and the remonstrants appeal.—</p>

— HoN. A. D. Bailie, J udge. ActioN against defendant Koeli for specific performance of contract to convey land, with the additional prayer that if defendants be found not .able to perform tbeir contract, then that plaintiffs have damages on account of the increased value of the land after the making of the contract, and also for the loss of the rental value; and, further, that if for any reason plaintiffs are not entitled to such relief, then that they have judgment against…

<p>Master and servant: negligence: instruction. In an action for injuries to an employe working at a machine as helper, a charge that if the- employer failed to use ordinary care in keeping the machine in repair, but -at the time of the accident it was in a defective condition and the defect was known or on the exercise of ordinary care would have been known to the employer, then on so finding the employer was guilty of negligence, and unless they so found the verdict must be for the defendant, was not erroneous as assuming that the machine was in a defective condition.</p>

— How. J. !R. Whit-AKER, Judge. ActioN in replevin. Judgment for plaintiff, and both parties appeal; that of defendants being perfected first.

<p>1 Insurance: contract by agent: report of risk. Where an agent has authority to contract insurance on behalf of the company indemnifying the insured against loss caused by lightning, and the agent agrees to issue such a policy, the insured is not responsible for the agent’s omission to correctly report the risk.</p> <p>2 Lightning clause: insertion after loss. Where the agent issuing an insurance policy omitted by inadvertence to attach a clause indemnifying the insured against loss by lightning, according to agreement, he had authority to insert such a clause after loss occurred.</p> <p>3 Completion of contract by agent. An agent’s authority to issue a</p> <p>policy of insurance continues until he has executed the policy contracted for, and the fact that he is permitted to retain the same after it is ready for delivery, while incomplete, will not render the agent the representative of the insured so as to deprive him of the authority to complete the contract.</p>

— HoN. F. M. Powers, Judge. A jury found the defendant guilty of seduction, and he appeals from a judgment on the verdict.- —

— Hon. O. D. Wheeler, Judge. Action to recover damages for breach of warranty in the sale of a jackass. Verdict and judgment for plaintiff. . Defendant appeals.—

<p>Appeal from Harrison District Court.— HoN. N. W. Ma-oey, Judge.</p> <p>The opinion states the case.—</p>

— Hem. J. H. Richard, Judge. ActioN on a promissory note for the sum of $768 made by the defendants to Thompson Bros., or order, and payable at the office of the Hubbard State Bank,. Hubbard, Iowa, due on or before five years after April 2, 1900, with interest at eight per cent, per annum.

— HoN. Z. A. Church, Judge. Application to have order discharging the administra-trix of John Boyle, deceased, set aside, and a claim for services alleged to have been rendered by Charles A. Boyle allowed as a /claim against the estate. A demurrer to the petition was sustained, andj as the plaintiff elected to stand on the ruling, judgment of dismissal was-entered. The plaintiff appeals.—

<p>Contagious disease; employment of physician. A board of health of a special charter city may, in an emergency, legally contract with a member of the city council and also the, health officer of the city to attend persons who are a county charge afflicted with a contagious disease.</p>

— IIoN. J. H. Richard, J udge. ActioN to recover damages for conspiracy to cheat and defraud the plaintiff by combining with one Herman Light-field to hinder and delay the collection of a judgment recovered by plaintiff against said Herman Lightfield,- by covering up, concealing, and placing out of the reach of an execution the property of said Herman Lightfield, who had become insolvent.

— HoN. A. B. Thor-NELL, Judge. This is a proceeding by one Kate E. Hamilton to establish a claim on a note held by her against the estate of W. E. Donaldson, deceased, and for an order directing the administrator to pay the same out of the proceeds of a certain life insurance policy issued to the deceased and payable to his estate. The trial court allowed the claim, but denied the order. Claimant appeals.—

<p>Appeal from Pottawattamie District Court.— Hour. N. W. Macy, Judge.</p> <p>The appellant, who is a resident of Minnesota, being the owner of certain property in the city of Council Bluffs, Iowa, leased the same to the app'ellees under date of August 10, 1899, for a period expiring January 1, 1903, at a rental of $600 per annum. On July 3, 1901, the parties entered into a written agreement for the sale and purchase of the property for the sum of $500 in hand paid, and the further sum of $6,500, payable on or before January 2, 1903, without interest; appellees to continue to pay rent under the lease until the expiration of the term, unless the purchase price should be sooner paid. After mating this contract, and befox*e the time for the making of the conveyance had matured, .general taxes for city, county, and State purposes were levied upon the property for the years 1901 and 1902, and remained delinquent and unpaid. On the day the contract matured the appellees made tender to the authorized agent of the appellant of the entire unpaid portion of the contract price, less the amount of the tax, and offered to pay the full $6,500 if appellant or her agent would remove the lien. Belying upon the theory that appellant was not bound to pay the taxes accruing after the date of the contract, the agent refused to accept the tender or to discharge the lien. On the same day the appellees filed in the office of the clerk of the district court their petition in equity against the appellant, asking a specific performance of-the contract to convey. Thereafter service of the original notice of such action was served by publication. On January 29, 1903, the appellant, acting upon a forfeiture clause in the contract, served notice on the appellees that, unless payment of the agreed purchase price of the property was made within thirty days, the contract would be declared forfeited, and possession demanded. On March 10, 1903, and before publication of the original notice was completed in the action begun .by the appellees, appellant began her action at law in the district court to recover possession of the property. On trial to the court in each ease the issues were found with the ap-pellees, and appellant was decreed to make the conveyance as prayed in the action for specific performance. Mrs. Clinton, defendant in the action in equity and plaintiff in the action at law, appeals. As both actions turn upon the same state of facts, they have been jointly submitted in this court, and will be disposed óf in one opinion.-— Affirmed,</p>

— HoN. W. N. Green, Judge. ActioN in equity to subject certain real property to the payment of a judgment. The property was at one time the homestead of defendants J. N. and Jennie L. Nice, and at the time the action was brought had been sold to the defendant railroad company, which retained in its hands a sufficient amount of the purchase price to satisfy plaintiff’s claim if it should be established.

— 'HoN. N. W. ALacy, J udge. Suit in equity to restrain the defendant from using chimney flues built by the plaintiff in a wall in common. There was a judgment for the plaintiff enjoining the defendant from using the flues in a manner detrimental to the plaintiff’s use thereof, and permitting him to enlarge two of the flues. The defendant appeals.—

— HoN. A. N. HobsoN, Judge. The plaintiff is an heir of Emily Severson, who died intestate, holding the legal title to the land in controversy, which, with other lands, was deeded to her by her husband, the defendant, O. R. Severson, several years before her death. This is a suit in equity to confirm the plaintiff’s interest in the land, and for a partition thereof.

— HoN. A. S.. Blair, Judge. ActioN to recover damages for personal injuries. The petition filed was in two counts.

— HoN. F. M. Powees, Judge. Suit in equity to enjoin the sale of certain lots by defendant Garland, county treasurer, for the amount of assessments levied against them by the city council of the city of Jefferson for grading, graveling, and macadamizing streets in front thereof. The trial court dismissed the petition, and plaintiff, Gallaher, appealed.

<p>Appeal from Clayton District Court. — ■ HoN. L. E. Eex-xgws, Judge.</p> <p>Appeax from an order denying defendant’s petition for new trial.—</p>

<p>Appeal from, Fayette District Court.— HoN. A. N. HobsoN, Judge.</p> <p>ActioN to recover damages for a personal injury. At the time of the accident of which he complains, plaintiff was in the employ of defendant in the capacity of head brakeman on a freight- train. The train was composed of an engine and fifteen cars, and was running as an extra between Jackson Junction and Calmar. At Jackson Junction the conductor and engineer of the train received orders to look out for a work train on the track between the junction and Ft. Atkinson, the next station. The petition was in two counts. The substance of the allegations of the first count respecting the happening of the accident and' the negligence out of which the same arose are as follows: That when near Ft. Atkinson the train came suddenly upon a work train, consisting of an engine, several cars, and a pile driver, standing upon the track; that upon coming in view of such obstruction the engineer gave the whistle signal for brakes, to which plaintiff, who was riding in the cab of the engine, at once responded; and that, “ while thus acting, plaintiff’s co-em-ployés^ on said train, in their efforts to stop the same and thus prevent a collision with the said obstruction, caused an unusual lurch or jar of said train,” whereby he was forcibly thrown -from the car upon which he was attempting to set brakes, and injured. Filrther, it is said that the defendant was negligent, causing his injury, for that the engineer of the train, having been advised of the existence of said work train on the track, and having been ordered to “ protect yourself against woi'k train,” failed to notify plaintiff of said order, as it was bis duty to do, and</p> <p>Did run and operate bis engine and train * * ' * without protecting bimself or train against said obstruction, and did negligently and without care on bis part, and in violation of said order, run and operate said train around a curve and through the timber down a steep grade where the view was obscure without protecting the same, as by said order he was, directed, against said obstruction; and did negligently run and operate said train to a point in such close proximity to said obstruction that he deemed it necessary to and did call for brakes, and plaintiff’s co-employés did make a violent stoppage of said train, and caused a sudden and unusual jerk and lurch of the same, all in violation of said order and instruction; and did thereby, by said negligent acts, cause the injuries to plaintiff herein complained of; whereas, had the engineer obeyed the said order, * * * the said sudden stoppage of said train would not have been necessary, and plaintiff would have received no injury therefrom.</p> <p>In the second count, the circumstances of the accident are alleged, and negligence is charged in that “ the employes of the defendant engaged in operating said ‘ pile driver ’ and work train were negligent and careless in failing to flag the extra train and the employes thereon, on which plaintiff was employed, of the presence and locality of said work train upon the defendant’s track, as they were required to do under the rules of the defendant and the customs and practices in vogue upon the defendant’s railway.” The answer makes general denial, and pleads an assumption of the risk. From a verdict and judgment in favor of plaintiff, the defendant appeals.</p>

— IIoN. Z. A. Church, Judge. Suit in equity for the partition of land. The plaintiff and the defendant Samuel F. Ewart are the sons of George Ewart, who died intestate in October, 1897. The parties hereto are all residents of the State of Pennsylvania.

<p>Appeal from Fremont District Court.- — -How. A. B. Triou-NELL, Judge.</p> <p>This is an appeal from an order sustaining plaintiff’s motion for a new trial in an action wherein he sought to recover damages from defendant for flooding his (plaintiff’s) land. The case was tried to a jury, resulting in a verdict for the defendant. From the order sustaining the motion for a new trial, defendant appeals.—</p>

. Appeal from Mahaska District Court.— Hon. John T. Scott, Judge. • . Suit at law upon a contract of fire insurance issued to the plaintiffs’ assignor. There was a trial to a jury,, and a directed verdict for the defendant, from which the plaintiffs appeal.—

— Mon.'M. A. Roberts, J u'dge. ActioN to recover damages for the death of plaintiff’s intestate, due, as alleged, to the negligence of defendant’s employes in the operation of a train. Verdict for plaintiff for $1,210. From judgment on this verdict, defendant appeals.—

<p>1 Telephones: electricity: negligence. A telephone company which acquiesces in the use of its poles by an electric company, is charged with the duty of seeing to it that the light wires do not expose its employés to unusual danger.</p> <p>2 Same. A telephone company permitting the use of its poles for carrying electric light wires, must use a degree of care for the protection of its employés commensurate with the danger involved.</p> <p>3 Negligence: evidence. In an action by a telephone lineman for injuries caused by a defective electric light wire carried on the poles, of the telephone company, the evidence is reviewed, and held to justify a submission to the jury of the issue of defendant’s negligence. ,</p> <p>4 Assumption of Risk. A telephone lineman not an inspector of wires, nor charged with the duty of inspecting or testing live wires, does not assume the risk of an injury resulting from a defective light wire.</p> <p>5 Contributory Negligence: evidence. A telephone lineman was injured by coming in contact with a defectively insulated electric light wire which the defendant carried on its poles; under the evidence it is held that the question of the lineman’s contributory negligence was properly submitted td the jury.</p>

— Host. Clifford P. Smith, Judge. The plaintiff was adjudged guilty of contempt for the violation of a decree restraining him from the unlawful sale of intoxicating liquors. This is a certiorari proceeding to determine the validity of that decree.—

<p>Challenge to jurors. The appellate court will not presume prejudice 1 from the ruling of the trial court in excusing a juror because wrongly named; nor will'prejudice arise from a refusal to excuse another from the same panel for the same reason, where the objection was not made until after the exercise of a peremptory challenge.</p> <p>Waiver of objection to juror. An objection to a juror because of his 2 relation to the prosecuting witness in a criminal action, which becomes known to defendant’s counsel during the trial, is waived by failure to call attention to the fact prior to the verdict.</p> <p>Sequestration of Witnesses: discretion of court. It was not an 3 unreasonable exercise of discretion to permit the wife of a prosecuting witness to testify, after remaining in the court room during the examination of the other witnesses for the State, in violation of a sequestration order, it appearing that the sheriff did not enforce the order for the reason that she was the only lady witness.</p> <p>Alibi: reasonable doubt: instructions. An instruction that de-4 fendant was not bound to establish an alibi beyond a reasonable doubt, and if the testimony raised a reasonable doubt that defendant was present at the commission of the crime he was entitled to an acquittal, was not objectionable as leading the jury to believe that it was only such doubt as to the alibi which would necessitate acquittal, where the doctrine of reasonable doubt was correctly stated in another instruction.</p> <p>Reasonable doubt: review on appeal. The appellate court will not 5 pass on the question of reasonable doubt in reviewing the evidence, but if the verdict has support and the jury has been properly instructed, its finding on the question is final.</p>

— IIoN. Henby Bare, Judge. Suit in equity to redeem certain property from an execution sale under the foreclosure of a mortgage. The trial court sustained a demurrer to the petition, and plaintiff appeals. — ■

— IioN. W. G. Thompson, Judge. PlaiNTIKK was assessed by the county treasurer under chapter 50, page 33, Acts Twenty-eighth General Assembly, on moneys and credits claimed to have been omitted from assessment for preceding years. On appeal to the district court this assessment was set aside, and the defendant appeals to this court.—

— HoN. Z. A. Chubch, Judge. ActioN at law to recover the amount paid by plaintiffs on a policy of insurance issued by the defendants as its agents, on the ground that defendants issued the policy without. authority, and willfully and fraudulently failed to follow their instructions. Trial to a jury. Directed verdict for defendants, and plaintiff appeals.—

— Hon. Deed O’Donnell, Judge. ActioN at law to recover damages for personal injuries received by plaintiff resulting from a fall upon one of defendant’s streets. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.- —

— HoN. Wm. G. Thomp-soN, Judge. The defendant was tried on an indictment charging murder in the first degree, and was found guilty of manslaughter. From a judgment on the verdict, he appeals.—

— IIoN. G. W. Bubn-ham, Judge. DeebNdaNt was convicted of embezzlement, and sentenced to imprisonment in tbe penitentiary for two years at bard labor. From this judgment he appeals.—

<p>Appeal from Linn District Court.— Hon. Wm. G. Thompson, Judge.</p> <p>Action by plaintiff, as a citizen and taxpayer of Cedar Rapids, to recover moneys alleged to have been illegally paid to the defendants by the county treasurer of Linn county for services in discovering property omitted from the assessment rolls. The petition was dismissed, and plaintiff appeals.—</p>

— HoN. A. B. Dewey, Judge. Suit in equity to enjoin defendants from trespassing upon plaintiff’s real estate. Defendants claimed a right to go upon the land in virtue of a mining lease. To this plaintiffs responded by pleading an abandonment of the tenancy. On these issues the case was tried to the court, resulting in a decree dismissing plaintiffs’ petition. Plaintiffs appeal.—

— HoN. G. W. Dyer, Judge. Action at law to recover damages for a personal injury. Tbe action as commenced by plaintiff was against the de fendant city alone, and in-the petition it was charged that the accident through which, plaintiff received the injuries of which he complained, was occasioned by his falling in the nighttime into an excavation or pitfall dug and negligently allowed to remain unprotected in a public street of said city. The city answered by a general denial.

— Hon. Wm. G. Thompson, Judge. May, Fero & Gainor’s Addition to Cedar Rapids was platted in 1856. The plaintiff became owner of lot 3 in block 9 in 1896. As appears from the annexed plat, this lot, with others, abutted on ground designated “ Public Square ” which furnished the only access to it.

<p>Intoxicating liquors: fines: attorney fees. Where a fine has 1 been imposed for the sale of liquor in violation of an injunction, the ten per cent, of the fine allowed by Code, section 2429,. in addition to the reasonable fee provided for the attorney prosecuting the cause, cannot be recovered either as costs or otherwise until the fine has been collected.</p> <p>Fines: collection of attorney fees: injunction. An ex parte 2 order in vacation for the issuance of an execution to collect, as attorney fees, ten per cent, of an uncollected fine imposed for the sale of liquor in violation of an injunction, is void for want of notice, and a suit to restrain its enforcement will lie.</p>

<p>Robbery: indictment: ownership of property. An indictment 1 for robbery which does not allege the ownership of the property, is insufficient.</p> <p>Indictment: sufficiency. While in general it is sufficient to charge 2 an offense in the language of the statute, this rule does not obtain where the statute does not necessarily charge the offense named.</p> <p>Cross-examination of defendant. The State may cross-examine a 3 defendant as to his residence or occupation, although it may tend to discredit him.</p> <p>Evidence: impeachment.- It is error to permit the State to im-4 peach ai defendant on immaterial matters developed on his cross-examination. , ■</p>

- — Hon. W. R. Green, Judge. ActioN for' damages. Verdict was directed for the defendant, and from judgment thereon the plaintiff appeals.—

— Hon. Feed O’Donnell, Judge. Action in equity to recover judgment on a note and for foreclosure of a mortgage. Defendants, who are husband and wife, denied under oath the execution of the note and mortgage, and asked by way of affirmative relief that the. mortgage be canceled and satisfied of record, in order that’ the cloud thereby created on defendants’ title to the premises be removed. Decree for plaintiff. Defendants appeal. — -

<p>Special interrogatories. Special interrogatories in the nature of a 1 cross-examination of the jury should he refused.</p> <p>Compromise and settlement: exclusion of evidence. In an action 2 to recover of an attorney money collected for a client, after deducting a stated collection fee, where defendant admitted the service but denied that the collection fee as alleged was agreed upon and pleaded other and prior services performed and full settlement of the entire controversy, it was error to exclude evidence of such other service, which was not cured by the indirect appearance in the record of a portion of the excluded testimony.</p>

— Hon. Z. A. Church, Judge. Suit in equity to compel defendants to remove obstructions placed by them in a ditch running along the side of a highway between Webster and Calhoun counties. The trial court granted the relief prayed, and defendants appeal.—

CeetioeaRI proceedings originally brought in this court to review the action of the district court of Polk county, Hon. Josiah Given, Judge, in respect of certain contempt proceedings had in that court, and wherein this plaintiff was adjudged to be guilty of a contempt of court, and by the judgment ordered to pay a fine and costs. The opinion states the case.—

Certiorari proceedings originally brought in this court to review the action of the district court of Polk county, Hon. Josiah Given, Judge, in respect of certain contempt proceedings had in that court, and wherein this plaintiff was adjudged guilty of a contempt of court. The opinion states the case.—

CERTIORARI proceedings originally brought in this court to review the action of the district court of Polk county, Hon. Josiah Given, Judge, in respect of certain contempt proceedings had in that court, and wherein this plaintiff was adjudged to be guilty of a'contempt of court, and by the judgment ordered to pay a fine and costs.—

Cebtioeabi proceedings originally brought in this court to review the action of the district court of Polk county (Hon. Josiah Given, judge) in respect of certain contempt proceedings had in that court, and wherein this plaintiff was adjudged guilty of a contempt of court. The opinion states the case.—

— Hon. J. H. Rothrook, Judge. Action at law to recover damages for injuries received by plaintiff in falling into a cellarway in or near one of the streets of tbe defendant city. Tbe defendants, other tban tbe city, are tbe owners and occupants of abutting property, wbo constructed and maintained tbe alleged defect. Trial to a jury; verdict and judgment for plaintiff against all tbe defendants; defendants appeal.—

<p>Divorce: support of child. A husband is obligated to provide for 1 his child given into the custody of his divorced wife, but no' cause of action therefor arises until he has refused to respond to a just claim on him for the child’s maintenance.</p> <p>Duress: avoidance of contract. Where a divorced husband, aged . 2 and enfeebled in body and mind and under temporary guardianship, is induced under circumstances indicating an unfair advantage and coercion to enter into a contract turning over a large part of his estate to a trustee for the benefit of a child, the custody of whom was awarded his divorced wife and for whom suitable provision was made in the divorce proceeding, his heirs at law,, upon his death, may have the contract cancelled.</p> <p>Approval of void contract. An order of court approving a void' 3. contract is of no effect, where its validity was not adjudicated.</p>

— Hon. W. D. Evans, Jndge. Suit in equity on a policy of fire insurance. There was a judgment for the plaintiff, from which the defendant appeals.—

— Hon. F. R. Gay-nor, Judge. AotioN in equity to reform certain of’ the provisions of a policy of fire insui’ance and. for judgment for the face amount of such policy. From a decree and judgment in favor of plaintiff, the. defendant appeals.—

— Hon. Byron W. Preston, Judge. ActioN to recover damages to property by reason of the obstruction of a street by the defendant. Verdict and judgment for plaintiff. Defendant appeals.—

— HoN. W. G. Thompson, Judge. ActioN in equity to declare a trust in favor of plaintiff in certain real estate. Demurrer to. petition sustained, and plaintiff appeals.—

Original proceedings by 'certiorari to review the action of the defendant judge in taxing the costs of a translation of the short-hand reporter’s notes for an appeal to the plaintiff. —

— IioN. B. H. Miller,. Judge. ActioN to enjoin tbe levy of an execution issued out of tbe office of the clerk of the district court on a judgment of a justice of the peace in favor of defendant against plaintiff, a transcript of which has been filed in the office of §aid clerk. The case was tried on an agreed statement of facts, and a decree rendered for plaintiff, from which defendant appeals.—

Appeal'from Tama District Court.— HoN. G. W. Burnham, Judge. Suit to recover for services rendered the defendant. Trial'to a jury, and a verdict for the plaintiff, which was. reduced by the court, and judgment entered thereon. Both parties appeal. The appeals were separately docketed, but. it is une case, and they will both be disposed of in this opinion; the defendant being designated the appellant.—

— How. G. W. Wake-field, Judge. Action to recover damages for an accidental injury to a horse owned by plaintiff, the same having been occasioned, as alleged, by a defect in a street of the defendant town. Prom a verdict and judgment in favor of plaintiff, the defendant appeals.—

— Hon. M. C. Mathews, Judge. Suit to recover a legacy given to' the plaintiff by the will of William P. Allen, deceased. The will was executed on the 27th day of July, 1892, at which time the plaintiff, whose maiden name was Hannah King, was about fourteen years of age, and the-protege of the testator. Mr. Allen died in March, 1898, and his will was duly probated in April following.

<p>Sales: breach of contract: election of remedies. Where the ven-1 dor of personal property, after tender and refusal, brought action to recover the contract price, he was not barred on the ground of election of remedies from thereafter amending.and asking a recovery of damages for breach of the contract.</p> <p>Tender: damages: instructions. Where plaintiff, under a contract 2 to sell defendant a' certain number of registered cattle, tendered a lot that were unregistered and therefore refused, and subsequently tendered -another lot which were registered but not accepted, whereupon plaintiff brought his action for damages and his testimony as to damage was confined to the registered animals, an instruction permitting the jury to base its finding upon the first tender of which there was no evidence .as to damage, was error.</p> <p>Sales: duty of vendor. Where the seller of cattle knew that the 3 purchaser intended them for breeding purposes, he was bound to deliver only such as were suitable for the purpose.</p> <p>Sales: compliance with contract: evidence. Under a contract to 4 sell thoroughbred bulls suitable for service, it is competent to show that the tender of a calf of five months was not a compliance.</p> <p>Sales: compliance with contract. The fact that an animal is 5 valuable will not obviate the objection that it is not in Compliance with the contract of sale.</p> <p>Sales: damages: market value. Where the vendor of cattle for 6 breeding purposes, after tender and refusal, elects to retain 'the same and claims as damages the difference between the contract price and the market value at the time and place of delivery named in the contract, the value of the cattle for beef was not the proper measure of damages, although their delivery was fixed at a time when there was little sale for breeding purposes, but the jury should have been permitted to consider the fact that the season would soon reopen and to look to sales of similar property within . a reasonable time of the delivery together with the cost of keeping the animals, in determining their market value.</p> <p>Market value: evidence. In an action to recover the market value 7 of cattle sold for breeding purposes which were tendered under the contract and refused, the defendant should be permitted to show the price at which plaintiff sold the same within a short time of the tender, as bearing on the question of their market value.</p>

— IIoN. Z. A.. Ci-iuech, Judge. Plaiittiee is a physician residing in the town of Manning, Carroll county. In February, 1902, he was called upon by the local board of health to attend one Nose, transiently in said town, and afflicted with smallpox.

<p>Appeal from Lirm District Court.— HoN. B. H. Milled,, Judge.</p> <p>Appeal from action of tbe lower court in overruling the motion of defendant to affirm an allowance of damages made in a condemnation proceeding, from wbicb tbe plaintiff — ■ that is, the landowner —r bad appealed. — ■</p>

<p>Appeal from Polk District Court.— How. Wm. H. Mo Iíeney, Judge.</p> <p>Action for damages resulting in a verdict and judgment for defendant. The plaintiffs appeal.—</p>

-— HoN. A. B Thor-nell, Judge. Aotion in equity originally brought by plaintiff in May, 1902, for an injunction to restrain the issuance of bonds by the defendant county to take up outstanding road and bridge fund warrants of said county, and which warrants are alleged to have been fraudulently and unlawfully issued.

— HoN. J. H. PrestoN, J udge. Suit for partition of certain real estate. Plaintiff claims to be the owner of an undivided one-tbirtieth interest in and to 320 acres of land acquired through a sheriff’s and a quitclaim deed. Defendants deny plaintiff’s ownership of any part of the property. The trial court made partition in accordance with plaintiff’s claims, and defendants appeal. — 1

<p>'Appeal from Monroe District Court. — ■ HoN. Robt. SloaN, ■ Judge.</p> <p>ActioN to foreclose mechanic's lien. There was a judgment against the contractor for the amount claimed, but the petition as against the owners was dismissed. The plaintiffs appeal. —</p>

<p>Appeal from Dallas District Court.— IIoh. Edmuhd Nichols, Judge.</p> <p>The opinion states the case. —</p>

— How. M. A. Roberts, Judge. ActioN by plaintiffs, as judgment creditors of Robert Ford, to have a conveyance of property to his wife set aside, .and to subject such property to the satisfaction of their judgments. Decree for defendants. Plaintiffs appeal. —

— HoN. Robeet SloaN, Judge. HeéeNDANt was indicted for the crime of an assault with intent to commit murder.. He was convicted of the crime of an assault with intent to commit manslaughter, and from the judgment and sentence imposed appeals. —

Contract of employment: • breach : remedy. A contract of em-1 ployment for personal services to be performed in the future, is not the subject for an action for specific performance, but the remedy in case of breach is a law action for damages. Appeal from Pollc District Court.— Hon. S. F. Prouty and Hon. W. II. McHenry, Judges.

<p>Burglary: evidence. A conviction of burglary will not be reversed 1 because of the admission of incompetent evidence, where objection thereto was waived by silence or otherwise.</p> <p>Evidence: letters. In proof of conspiracy, it is error to permit 2 the addressee to testify to the contents of a letter claimed to have been written by defendant, on proof simply ■ of the address and signature, there being no other evidence connecting defendant with the letter.</p> <p>Evidence: possession of stolen property. A defendant charged 3 with burglary should be permitted to explain his declarations concerning his possession of the stolen property, made shortly after he acquired possession and before his accusation.</p>

<p>Appeals: Ari appeal to the supreme court which is not presented in 1 substantial conformity with the rules governing the same, is not entitled to consideration.</p> <p>Admission of evidence: error. Error in refusing to strike an 2 ordinance pleaded as authority to make a post mortem examination, was cured by an instruction that the ordinance gave no such authority.</p> <p>Post mortem examination: consent. Consent to a post mortem 3 examination to ascertain the cause of death implies permission to conduct the examination in the approved manner, including the removal of organs for microscopic examination where necessary and proper, unless such permission of removal is expressly withheld, especially where the parts were duly returned and replaced for burial.</p>

— IioN. O. D. Wi-ieelee, Judge. Action in equity to foreclose a mortgage on real estate. There was a decree in favor of plaintiff, and the defendant Nancy Palmer appeals.- —

-— HoN. F. W. Eichel-beegee, Judge. This is an action in partition brought originally by Agnes White et al. against defendant Ralston. The Waterloo Bank and the Waterloo Gasoline Engine Company intervened, claiming judgment liens upon the interest of defendant Frank Ralston in and to the property in controversy.

<p>Division fences: partition. There are but two methods of di_ 1 viding partition, fences, one by order of the fence viewers, and the other by written agreement as provided by Code, sections 2356 and 2361; and a division based on a mere understanding of one landowner with the tenants of the other is of no effect.</p> <p>Duty to maintain. Where there has b.een no legal partition of a 2 division fence, the duty of maintaining the entire fence rests on both owners alike, and neither can complain of the neglect of the other.</p> <p>Trespassing, animals: liability of owner. Where there has been 3 no legal partition of a division fence and the stock of one adjoining owner break through onto the land of the other and then into an enclosure surrounded by a lawful fence, the owner of the stock is liable for the damage done.</p> <p>Evidence: distraint. In an action for damages from trespassing 4 cattle, an explanation of why the cattle were not distrained as soon as discovered, was properly admitted.</p>

— IIoN. Edmund Nioi-iols, Judge. Action at law to recover one-balf of the real estate commissions realized by defendants from business turned over to them by plaintiff in pursuance of a contract by which plaintiff was to give up his real estate business to defendants, and refrain from doing such business during the continuance of the contract. Verdict for plaintiff for $440, on which the court rendered judgment for $322.50. Erran this judgment, defendants appeal.- —

— IIoN. J. Ii. Apple-gate, Judge. A juby found the defendant guilty of tbe crime of burglary, and he appeals from a judgment on the verdict.—

<p>Wills: construction: participation in real estate. In the construction of the various provisions of the will and codicil in question, it is held that the widow as trustee held title to a certain eighty acres from which a bequest to one. of the heirs was to be made equal to that of others, and that the balance was intended for the use of still other heirs to whom no specific devise of real estate was made.</p>

<p>Appeal from Woodbury District Court.— HoN. George W. Wakeeield, Judge.</p> <p>Suit in equity to quiet plaintiff’s title to a certain lot in the city of Sioux City, as against defendant’s claim under a certificate of purchase of the same at tax sale. Defendant filed an answer and cross-bill asserting the validity of his certificate, and making claim for subsequent taxes paid by-him on the lot. He also asked that, if the certificate be declared invalid, he be given an equitable lien upon the property for the amount of the taxes paid by him. Plaintiff denied the validity of the taxes, and pleaded the illegality of the certificate of purchase. The case was tried to the court, resulting in a decree for the plaintiff, and defendant appeals.—</p>

- — -Hon. S. M. 'Weaves, J udge. Action in equity for partition. After bearing and decree, Martha Vidders and other defendants upon whom notice had been served by publication cam© in and moved for a retrial, and such was had. The final decree denied any relief to such defendants, and they appeal.—

— HoN. Wm. Hutchinson, Judge. ActioN to recover damages for personal injuries received by plaintiff while in defendant’s employ. Verdict and judgment for plaintiff in the sum of $1,999-and costs. Défenda’nt appeals.' — •

<p>Appeal from Woodbury District Court.— HoN. Wm. Hutch-iNSON, Judge.</p> <p>The opinion states the case. — ■</p>

<p>Sale of land: rescission of contract. Where time is of the essence 1 of a contract to convey land, plaintiff, to establish his right to rescind for-defendant’s default, must prove that he was ready, able, and willing to perform his part and made substantial tender of performance on the date specified.</p> <p>Rescission of. contract: tender. Where defendants were not 2 ready, able, and willing to perform their contract for the conveyance of land at the time specified, and plaintiff tendered a draft for the amount of a cash payment to which no objection was made, and nothing was said regarding a mortgage to be given for 'deferred payments, such tender was sufficient to support plaintiff’s suit to rescind.</p> <p>Rescission. Where defendants, having only an option to purchase-, 3 land, agreed to convey it at a specified time under a contract of which time was the essence, and they were unable to procure title on that date, such breach of the contract entitled their purchaser to rescind.</p> <p>Rescission: curing defective title. A contract providing that ven-4 dors shall have a reasonable time after tender of an abstract to remedy defects in the title, does not contemplate a complete absence of title and delay for the purpose of procuring the same.</p> <p>Rescission: tender of performance. Where plaintiff, under a con-5 tract to purchase real estate, knew that defendants had no title on the date specified for performance and that they were unable to perform, it was necessary for him before rescinding to make a technical tender of performance, provided he was ready, able, and willing to perform had defendants been able to do so.</p>

<p>Appeal from, Taylor District Court.— HoN. H. M. TowNer, Judge.</p> <p>The opinion states the ease.</p>

— HoN. Johh F. Oliver, Judge. ActioN to recover a mulct tax from the sureties on the bond of one Mahon, who was engaged in conducting a saloon in the town of Sanborn, in O’Brien county.

<p>Insurance: sale or property: forfeiture of policy. The conditions of an insurance policy which if violated render the same void, will be strictly construed and in cases of doiibt will be resolved against the company, so that a contract of sale of the property which will work a forfeiture under the provisions thereof must be one which is enforceable and not a mere option or dependent upon some contingency to give it vitality. In the instant case the contract is held unenforceable.</p>

<p>Judgments: limitation of action. By Code, sections 3439 and 1 3447, the time during which an action may be maintained on a judgment rendered in a court of record, is limited to the five years intervening between the expiration of fifteen years from its rendition and the twenty years therefrom when the same is 'barred.</p> <p>Statute of limitations: amendment. The legislature may amend 3 an existing statute so as to lengthen or shorten the time within which a cause of action on a judgment will be barred, without violating the constitutional prohibition against the impairment of contracts, if a reasonable time is given for the commencement of action before the bar becomes effectual.</p> <p>Limitations: commencement of actions: reasonable time. In 3 determining whether the time allowed by a statute shortening the period of limitation for the commencement of action to enforce a right is reasonable, the time intervening between the passage of an amendment and the date it takes effect should be considered. In the instant case fifteen months so allowed in which actions might be brought on judgments otherwise barred by the amendment, is held reasonable.</p> <p>Constitutional law: classification: uniformity: due process of 4 law. The act of the legislature limiting the time within which actions should be commenced to enforce all judgments rendered between the taking effect of the Code of 1873 and the Code of 1897, is not unconstitutional for nonuniformity, as it applies to all suc-h judgments as a class, and the act simply recognizes a classification made by prior legislation; nor is it void as depriving the judgment holder of rights without due process of law.</p>

— 'HoN. C. W. Veu.-millioN, Judge. DeeeNdaNt was accused by information before a magistrate of keeping open bis place of business, to which persons resorted for the purpose of drinking intoxicating liquors, on Sunday, contrary to the ordinances of the plaintiff town. He was convicted before the magistrate, and appealed to the district court.

— HoN. EraNk W. Eioi-iexberger, Judge. ActioN to recover damages for personal injuries caused, as alleged, by the negligence of defendants. Verdict and 'udgment for ■ plaintiff. 'Defendants appeal.—

— Hon. M. A. Koberts, Judge. Actions in equity to reform certain policies of fire insurance, and for judgments for the amount of said policies. Decrees for the defendants, and plaintiff appeals.—

<p>Appeal from Monroe District Court.— HoN. Robert SloaNe, Judge.</p> <p>The opinion states tbe case.</p>

Appeal' from Moivroe District Court.— HoN. M. A. Bobekts, Judge. Suit to recover damages for personal injuries. Trial to a jury, and verdict and judgment for tbe plaintiff. Tbe defendant appeals.—

— HoN. James X). - Smyth, Judge. Appeal from a judgment determining that a change of. venue from one justice of the peace to another was improp-. erly granted.—

— HoN. 0. W. Vek-miluoR, Judge. Action to recover damages for fire set out by defendant’s locomotive engine. Verdict for $463. From judgment on the verdict, defendant appeals. —

— ’HoN. EdsiuNd Nichols, Judge. Suit in equity to establish a trust in certain lands the legal title to wbicb is in the defendants. The trial court dismissed plaintiffs’ petition, and they appeal.—

— HoN. W. L. Mc-NakaRA, Judge. ActioN to recover damages for a personal injury. Judgment by default was entered against the defendant city for want of an appearance, and such was subsequently, set aside on motion, irom the order setting aside the default and judgment, the plaintiff appeals.—

<p>Appeal from Ciarle District Court. — ■ HoN. H. M. TowNER, Judge.</p> <p>Suit to recover for the use of land. There was a judgment for the defendants, from which the plaintiff appeals.—</p>

— Hon. William Hutchinson, Judge. Suit to recover the possession of personal property. There were a verdict and a judgment for the defendants. The plaintiff appeals.—

— HoN. John F, Olivee, Judge. Suit in equity to set aside conveyances of land made by plaintiff to defendant Christopherson, by Christopherson to L. L. Cathcart, and by Cathcart to Carter. Carter gave a mortgage back for part of the purchase price to defendant Cathcart, which mortgage is held by the defendant bank.

<p>Counties: construction of bridges: fraud: evidence. Where a 1 bridge contractor materially alters the plans and specifications for the construction of county bridges by reducing, the amount of material therein, without the knowledge ior consent of the county or its agents authorized to consent to the change, it ■ amounts to a fraud for which the county may recover.</p> <p>Damages: evidence. It was not error for the court, in computing 2 damages sustained by a county by reason of the failure of a contractor to use the amount of material contracted for in the construction of bridges, to follow the figures given by an expert witness who was corroborated as to the amount of shortage, rather than the estimate of an officer of the company which furnished the material based upon the factory weights of which he had no personal knowledge, and who testified simply to the approximate correctness of his estimate.</p> <p>Breach of contract: damages. Where a contractor, in the con-3 struction of county bridges, used material of less weight than provided in the contract, it was proper for the court in arriving at the measure of damages to add to the actual cost oí the construction according to contract, the usual margin oí profit to the contractor, as shown by the evidence.-</p> <p>County bridges: estoppel. No act of an engineer appointed by 4 the county to supervise the construction of bridges, nor of an individual member of the board of supervisors by which a contractor was permitted to erect less valuable structures than provided by the contract, will estop the county from claiming damages for the défault as against the contractor or any one claiming under him.</p> <p>Breach of contract: acceptance: estoppel. The acceptance of a 5 county bridge in ignorance of the fact that the same was not constructed in accordance with the contract, will not estop the county from insisting upon a breach of the contract or a recovery of damages. v</p> <p>Same. ' The execution and delivery to a bridge contractor of •a 6 written acceptance of the work by individual members of the board of supervisors, made at an informal gathering fot the purpose of examining the work to enable them to act intelligibly upon the matter of accepting the same, was not an act of. the county; arid it was not estopped thereby from relying on a breach of the contract in the construction of the bridge.</p> <p>Same. The public use of a bridge will not amount to an accept-7 anee thereof and estop the county from insisting upon a breach of the contract for its construction.</p> <p>Breach of contract: estoppel. Partial payments by a county audi-8 tor on a contract on the order of a single member of the board of supervisors and without knowledge of the contractor’s default in construction, will not estop the county from asserting its claim for damages based on the contractor’s breach of the contract.</p> <p>Estoppel: fraudulent act of agent. A county cannot be estopped 9 by the acts of its representative appointed to look after the Construction of bridges, who, through collusion with the contractors, perpetrates a fraud on the county by the substitution of materials inferior to that called for by the contract.</p> <p>Subcontractor’s claims: liability of county. Where a county has 10 not reserved the right to pay the claim against a contractor employed to construct bridges, and a subcontractor has failed to file the statement of his demand as provided by Code, section 3102, the county may rightfully pay the contractor accord-" ing to the terms of the contract, without inquiring as' to materials furnished by subcontractors.</p> <p>Same. A subcontractor who furnishes material for the coristruc-11 tion of county bridges under an agreement with the principal contractor alone, is charged with notice of the terms arid conditions of the principal contract, and his rights are limited thereby; and where the county has lawfully discharged its obligation to the contractor prior to notice of 'the subcontractor’s claim, or where the contract is void for fraud, the subcontractor has no recourse against the county.</p> <p>Subcontractor’s claims:' damages: set-off. Where a county con-12 tracted separately for the construction of two bridges and was sued by a subcontractor who furnished material for both under a single agreement with the contractor and who made but a single statement for the materials furnished and was seeking to force his entire claim against the county for an alleged unpaid balance for either or both bridges, the county could offset its entire damages for a breach of both contracts in determining whether there was anything in its hands applicable to the subcontractor’s demand.</p> <p>Interrogatories: failure to answer: judgment. Code, section 13 3610, does not contemplate a summary entry of judgment because of indefinite or unsatisfactory answers by a municipal corporation to interrogatories attached to a pleading; and such an order will not generally be entered without an opportunity to the delinquent party to correct the fault.</p>

<p>Appeal from Plymouth District Gourt.— HoN. F. E. Gay-ítor, Judge.</p> <p>Suit to recover damages for injuries occasioned by the collapse of a defective bridge. There was a trial to a jury, and a verdict and judgment, for the plaintiff, from which the defendant appeals.—</p>

— HoN. Robert Sloan, Judge. ActioN to set aside a conveyance of real property by defendant Catharine Hall to her codefendant, O. R. Hall, on the ground that it was made with intent-to delay, hinder, and defraud creditors. There was a decree in favor of der fendant O. R. Hall, and plaintiff appeals.—

- — • HoN. J. W. BolliNgee., Judge. Suit to recover compensation for personal services. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.—

— HoN. Jas. H. Gamble, Judge. IN an action to quiet title, commenced by published notice, plaintiff secured judgment against defendants by default. Thereafter defendants moved to set aside the default, and, being allowed to make defense, a decree was entered for plaintiff. Defendants appeal.—

- — Horn W. G. Clements, Judge. This is an appeal from the action of the defendant, as county treasurer of Keokuk county, in making an assessment against plaintiff, a resident of said county, as upon moneys and credits omitted from assessment and taxation for the year 1901. The court below sustained the assessment, and plaintiff appeals. — ■

<p>Railroads: negligence: proximate cause. Whether the negligent 1 failure of a railway company to sound the engine whistle as the train approached a public crossing was the proximate cause of the injury to cattle being driven over the .crossing, was a question of fact for the juj-y.</p> <p>Contributory negligence: evidence. In' an action for injury to cat-2 tie at a public railway crossing, the evidence as to plaintiff’s contributory negligence is held to present a question -of fact for the jury.</p> <p>Special interrogatories. Inaccurate answers to special interroga-3 tories not calling for ultimate facts, nor for facts of such importance that a finding thereon against the weight of the 'testimony is necessarily indicative of passion, do not constitute ground for setting aside the general verdict.</p>

<p>Appeal from Clinton District Court.— HoN. P. B. Wo lee, Judge.</p> <p>AotioN for damages. From judgment as prayed, tbe defendant appeals.—</p>

— Hon. Byron W. Preston, Judge. Action at law to recover taxes upon moneys and credits alleged to bave been omitted from assessment. Judgment for tbe defendant, and plaintiff appeals.—

— HoN. W. G-. Clem-ENTS, Judge. Mary E. Bice died intestate January 18, 1890, seised of the east half southwest quarter section 17, township 77 north, of range 14, in Mahaska county. Her husband, David E. Bice, was appointed administrator of her estate', and on January 30, 1890, filed a petition praying for an order to sell said land.

— Hon. N. W. Maoy, Judge. Action to recover damages for a personal injury. At the close of the evidence the court instructed a verdict in favor of defendant, and entered judgment against plaintiff for costs. From such judgment, plaintiff appeals.—

— Hon. Byron W. Preston, Judge. Action in equity to subject certain real estate to the payment of a judgment rendered in favor of plaintiff and against the defendant D. C. Kyle and his wife, Joanna Kyle, 'the latter now deceased. Upon the trial the petition of plaintiff was dismissed, and there was judgment in favor of defendants for costs. Plaintiff appeals.- —

<p>Defaults: setting aside: practice. Where time to file a substi-1 tuted petition is given “ until ” a certain day, the day named will be excluded unless a contrary intention appears, and a default judgment taken upon a petition filed on the day so named will be set aside without the filing of an affidavit of merits and an answer.</p> <p>Same. TJie order of the trial gourt in setting aside a default will 2 not be disturbed on appeal unless a clear abuse of discretion is shown.</p>

— HoN. G. W. Waeeh field, Judge. Action to recover the double value of a steer killed by a passing train on the right of way of defendant’s railroad. Trial to a jury, and verdict and judgment for plaintiff. Defendant appeals.—

— - IíoN. A. R. Dewey, Judge. ActioN at law on an injunction bond to recover dam-' ages for the wrongful suing out of a writ of temporary injunction. The trial was had to the court, a jury being-waived, and judgment entered in favor of plaintiffs. Defendants appeal.—

<p>Appeal from Monona District Gourt.— Hon. G. W. Waee-eield, Judge.</p> <p>Action to recover upon certain certificates of bank deposit. In .February, 1901, one Christian Jacobson was the owner and holder of the certificates in question, one calling for the sum of $350, deposited by him, said Jacobson, in the bank of W. W. McDonald & Son, and the other calling for the sum of $300, likewise deposited in the Mapleton Bank. Tt is the claim of plaintiff that on February 3, 1901, he became the owner of each of said certificates by transfer and delivery thereof to him by said Jacobson. Payment of said certificates having been refused on demand, these actions were brought against the banks, each upon the respective certificate issued by it, to recover the amount thereof. Jacobson died, intestate, soon after the alleged transfer of the certificates to plaintiff, and Lewis & McFaul were appointed administrators of his estate. They intervened in each of these actions, and joined with the defendants in denying the ownership of plaintiff in the certificates, and alleging that at ¡lie time of the pretended transfer the said Jacobson was not of sound mind, and was physically and mentally incapable of making any valid disposition of his property. By agreement of parties the cases were tried jointly, and to a jury. There was a verdict and judgment in favor of plaintiff, and defendants and interveners appeal.—</p>

— HoN. John T. Soott, Judge. Three several appeals from tbe action of the city council of the city of Oskaloosa in levying special assessments for street improvements, taken by property owners to tbe district court. The causes were tried together, and decrees rendered in favor of the appealing property owners. From these decrees the city prosecutes the present appeal.—

— Hon. James D. Smyti-ie, Judge. ActioN in equity to enjoin and restrain the collection of certain assessment certificates issued by the defendant city for certain street improvements adjacent to plaintiff’s property. The trial court dismissed the petition, and plain- ' tiff appeals.—

— HoN. E. C. Platt, Judge. Samuel DeaNee died in 1901, and bis widow, Susan 0. Deaner, was appointed administratrix of bis estate. On the 11th of November, 1901, she filed, as a claim against the estate, two promissory notes, dated June 20, 1884, and December 1, 1890, respectively — the first for $835, and the last for $500 — each bearing interest at the rate of six per cent, per annum, and payable on demand.

— ’BEoN. ERobekt SloaN, Judge. ActioN in equity for tEhe specific performance of a contract to convey real estate, entered into between the plaintiff, ERea, and the defendant, Ferguson. The contract was reduced to writing, and bears date December 4, 1902.

— HoN. F. E. Gaynok, Judge. The petition alleges: That, at tbe tim.e of the transaction complained of, the defendant Shontz was employed by the county to discover property omitted from the tax lists, Magoun was treasurer, and Jenness was auditor.

— HoN.. W. D. EvaNS, Judge. Action to set aside a deed on the ground that it was procured by fraud, duress, and undue influence, and was without consideration, and that the grantor was mentally incompetent to execute a valid deed. Decree for defendants. Plaintiffs appeal.—

— Hon. A. S. Blair, Judge. Suit at law on a judgment rendered against the defendant by the circuit court of McHenry county, Ill. There was a judgment for the plaintiff, from which the defendant appeals.—

— Hon. W. D. Evans, Judge. ActioN in equity to restrain defendant from removing certain fixtures from land owned by plaintiff. A temporary writ of injunction was issued as prayed. Thereafter defendant answered, claiming that he was the- owner of the fixtures; that they were erected by him as a tenant, and were removable. He amended his answer by pleading a mistake in his lease of the land from plaintiff, and asked for a reformation thereof.

— HoN. W. H. McHenry, Judge. This suit was brought to recover the agreed price for brick sold and delivered to the defendant, Herrick, under a written contract. In a counterclaim Herrick alleged a breach of the contract, and asked damages for a failure-to deliver brick as agreed therein. There was a trial to a jury, and a verdict for the plaintiff for the amount of’ its claim less the damages found due the defendant on his counterclaim. Both parties appeal.

— HoN. W. D. EvaNS, J ndge. ActioN in equity to enforce specific performance of contract to sell real estate. Decree for plaintiff as to an undivided one-third of the land, .and assessing damages against the defendant Helen E. Smith Pratt in the sum of one dollar. The plaintiff appeals.—

— HoN. PeaNKLIN 0. Platt, Judge. AotioN at law to recover damages for injuries received by plaintiff’s minor son, resulting in his death, from drinking sulphuric acid out of a jug in which the drug was sold by the defendant without labeling the same as required by law. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.—

— 1 HoN. J. H. Richard, Judge. ActioN to enjoin the defendant from maintaining certain drains in bis land. Decree as prayed, and defendant appeals.-—

— HoN. It. L. Pabrish, Judge. The plaintiff is a building and loan association, and brings tbis suit in equity to foreclose a mortgage executed to it by Matthews and wife to secure a loan of $600 made to Matthews. There was a judgment for the defendants, and the plaintiff appeals.