Volume 129 — Iowa Reports

— Hon. James A. Howe, Judge. Action at law by plaintiff, as administrator of the estate of George Calloway, deceased, to recover damages for the death of said George Calloway, caused, as alleged, by the negligence of defendant. At the close of the evidence for plaintiff there was a directed verdict for defendant, and plaintiff appeals.

— Hon. James W. Bollinger, Judge. Action to recover damages for the death of plaintiff’s intestate alleged to have resulted from injuries received by him while in defendant’s employ as switch tender, and to have been due to defendant’s negligence. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. Franklin C. Platt, Judge. Action to recover damages for the conversion by defendant of a premium note given for life insurance. Judgment on directed verdict for plaintiff. Defendant appeals.

— Hon. Hugh Brennan, Judge. Action to compel defendants to enter the transfer to plaintiff of certain certificates of stock in the Wyoming Cattle & Investment Company on the books of the company and to pay to her certain dividends. Decree was entered as prayed, from which defendants appeal.—

Appeal .from Polk District Court.— Hon. A. H. McVey, Judge. Suit at law to recover on a note alleged to have been given, by J. S. Carter for family expense. He defaulted, and there was a directed verdict against Mary E. Carter, who is his wife. From a judgment on the verdict, she appeals.—

— Hon. F. C. Platt, Judge. Action at law for damages for alleged breach of warranty and false representations in sale of a herd of cows. Verdict and judgment for defendant, and plaintiff appeals.

— Hon. W. D. Evans, Judge. Action at law to recover damages for personal injuries said to have been received by plaintiff while passing along a street in the defendant town. Trial to a jury; verdict and judgment .for defendant, and plaintiff appeals.—

<p>Appeal from Woodbury District Court.— Hon. J. F. Oliver, Judge.</p> <p>Action to quiet title. Decree as prayed, from wbicli the defendant appeals.—</p>

— Hon. Edmund Nichols, Judge. Action to recover a sum named, alleged to be due as commissions earned in connection with a sale of real estate. The trial was to a jury and there was verdict and judgment in favor of plaintiff. The defendant appeals.—

<p>Pleadings fraud in procuring signature. A pleading charging fraud in procuring a signature to an instrument which fails to allege, either that the párty could not read the paper himself or that by some subterfuge he was prevented from reading it, or that it was misread to him, or that the writing was materially changed, is demurrable.</p>

— IIon. J. F. Clyde, Judge. Action for the severance of certain territory from the defendant town. The application is signed by plaintiff and practically all the people living upon the territory sought to be detached. The town resisted the application, on the ground that the territory was needed for the future growth of the municipality, that it needed police regulation ' and sanitary protection, and was' used for residential purposes by many business men of the town.

— Hon. Robert Sloan, J udge. Action to compel the defendant to contribute to the support of Lucy Raybourne, his daughter, and her three minor children. Judgment against defendant, requiring him to pay over for the support of his daughter and her children the sum of $2.25 per week for two years. Defendant appeals.—

<p>Appeal from Polk D'istñct Court.— ITon. Hugh Brennan, Judge.</p> <p>The opinion states the case</p>

— Hon. J. H. Whitaker, Judge.. This is a special proceeding under the provisions of Code, section 4-230, to, determine a disputed boundary. Judgment for plaintiff, from which defendant appeals.—

<p>Appeal from Polk District Court.— Hon. Hugh Brennan, Judge.</p> <p>Suit in equity to foreclose a mortgage. There was a judgment for the plaintiff. The defendants Sarah A. and Marv A. McMurray appeal.—</p>

<p>Appeal from Monroe District Court.— Hon. F. W. Eichelberger, Judge.</p> <p>The opinion states tlie case. From a judgment in favor of plaintiff, the defendant appeals.—</p>

<p>Appeal from BlacTchawk District Court.— Hon. A. S. Blair,, Judge.</p> <p>Indictment and conviction upon charge of arson, and the defendant appeals.—</p>

— Hon. F. W. Eichelberger, Judge. Action at law to recover damages growing out of the death of W. M. Wilson, plaintiffs intestate, and which death was occasioned, as alleged, by the negligence of the defendant county in permitting a county bridge to remain in a defective and dangerous condition. Upon trial there was a verdict and judgment in favor of defendant, and the plaintiff appeals.—

— Hons. J. H. Richard and J. R. Whitaker, Judges. Suit at law to recover money paid to another on a land contract. A demurrer to the petition was sustained and the suit dismissed. The plaintiffs appeal.

— Hon. A. H. Me Yea, J udge. Action to recover a sum of money due. on open account, and an additional sum as damages for conversion of certain store fixtures. By way of counterclaim defendant sought to recover against plaintiff damages for alleged malicious prosecution.

— Hon. W. H. McHenry, Judge. This is au action brought to set aside the will of John Fothergill, deceased, upon the grounds of mental incapacity and undue influence. The. defendants are the executor and some' of the beneficiaries under the will. The case was tried to a jury, resulting in a verdict for plaintiffs, and defendahts Otto Fothergill, Francis and Septimus Fothergill, and Ellen Harris, appeal.

— Hon. J. F. Clyde, Judge. The defendant was convicted of an assault with intent to maim and disfigure, and from the judgment he appeals.

<p>Appeal from Jasper District Qourt.— Hon. Byron W. Preston, Judge.</p> <p>Action in equity to cancel and set aside a conveyance of réal estate, for an accounting, etc. Upon trial, the court below dismissed the petition and gave judgment in favor of defendants for costs. Plaintiffs appeal.—</p>

<p>1 Adultery: evidence: admissibility. On a prosecution for adultery, where the evidence of guilt relied upon was wholly circumstantial and one of the circumstances relied on was the fact that defendant left his family and resided elsewhere, it was competent for him to show that his wife’s conduct toward him was such as to render life unhappy and unsafe.</p> <p>2 Same. Where the wife was active in the prosecution of her husband for adultery and gave damaging testimony against him, he should be permitted to show that she attempted to dissuade witness from attending the trial and testifying in his behalf, as bearing on the weight to be given her evidence.</p>

— Hon. A. B. Thornell, Judge. Action to recover the possession of five cream separators, under a claim that plaintiff was the manufacturer thereof and is now the owner of the same. Defendant denied plaintiff’s claim, and pleaded ownership in himself. On these issues the case was tried to a jury, resulting in a verdict and judgment for defendant, and plaintiff appeals. — ■

<p>Appeal from Mills District Court.— Hon. A. B. Thornell, Judge.</p> <p>Action to recover damages for breach of contract by defendant to deliver goods in accordance with an alleged completed contract of sale. A demurrer to the petition was sustained, and from judgment thereon in defendant’s favor plaintiff appeals.—</p>

<p>1 Drainage: award of damages : appeal. An appeal from an award of damages in a proceeding to establish a drainage ditch need not be taken within twenty days from the filing of the award, but is in time if taken within twenty days from the final action of the supervisors establishing the ditch.</p> <p>2 Appeal: service of notice. A notice of appeal from an award of damages in a proceeding to establish a drainage ditch must be served on the four persons first named in the petition as provided by Code, section 1513, relating to the establishment of roads.</p>

— Hon. J. F. Clyde, Judge. The defendant was indicted for illegal voting. After all of the evidence had been introduced a 'verdict of not guilty, by the direction of the court, was returned and the defendant discharged. The state appeals.—

— Hon. F. M. Powers, Judge. The defendant was convicted of taking fish from waters in this state by unlawful means. The proceedings were commenced before a justice of the peace, and the information was in seventy-five counts, each charging the taking by defendant on the 30th day of July, 1904, of a live fish from the Raccoon river, and not being a minnow taken for bait, by means and use of a fish seine.

<p>Appeal from Buena Vista District Court.— Hon. A. D. Bailie, Judge.</p> <p>Action at law to establish a claim, and to have applied thereon the proceeds of certain property sold by the assignee. Judgment for the defendants, from which the plaintiffs appeal.—</p>

<p>Larceny of logs: possession: presumption of guilt. On a prosecution for the larceny of logs, their ownership and the wrongful taking must be alleged and proven as in other cases of larceny, before a presumption of guilt will arise from the.mere, fact of possession.</p>

— Hon. A. S. Blair, Judge. Action in equity to determine and quiet title to real estate. The opinion states the case. There was a decree in favor of plaintiffs, and the defendants appeal.—

— Hon. A. B. Thornneix, Judge. In an action brought by plaintiff against defendant, Hansen, J. E. Peterson was garnisheed as a supposed debtor of defendant, and notified to appear at the next term of the district court in Mills county, to be begun and held April 14, 1903, and to answer such questions as should then and there be propounded to him.

— Hon. W. G. Clements, Judge. Action to reform written contract and recover commission for the sale of real estate. Judgment for defendant, and the plaintiffs appeal. The facts are more fully stated in the opinion.—

<p>Appeal from Mills District Court.— Hon. N. W. Macy, Judge.</p> <p>The defendant was convicted of having maintained a liquor nuisance, and appeals.-—</p>

• Appeal from Winneshiek District Court.— Hon. L. E. Eel-lows, Judge. Action at law upon a judgment, of a' justice of the peace, • which ■ had been transcripted to and filed with the clerk of the district court. Defendants demurrer to the petition upon the ground that the action was barred by the statute of limitations was overruled.

— Hon. N. W. Macy. Judge. Actíon in equity to'establish a lost will, and for probate thereof. There was a decree dismissing, the petition, and plaintiffs appeal.—

— Hon. L. E. Eel-lows, Judge. Action at law to recover damages for an alleged personal injury. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. N. AY. Macy, Judge. Action in equity to subject to tbe payment of a judg-' ment held by the plaintiff against defendant John Blumer certain real property the legal'title of which is in his wife and codefendant Maggie Blumer. A decree was rendered for the defendants, from which plaintiff appeals.—

— Hon. W. N. Treichler, Judge. Action under tbe statute of tbis state to recover moneys paid by plaintiff to the defendant Jos. Schlitz Brewing Company as the purchase price of intoxicating liquors, sold, as alleged, by said company to plaintiff in this state, contrary to the laws thereof. There was a jury trial, resulting in a verdict and judgment in favor of defendants. The plaintiff appeals.—

— Hon. Z. A. Churoi-i, Judge. Action for damages caused by breach of contract to sell land. ' Trial to jury resulted in verdict for the plaintiff in the sum of $800. Judgment was rendered thereon, and the defendant appeals.—

<p>Appeal from Pocahontas District Gowrt.— Hon. W. B. Quarton, Judge.</p> <p>These two cases should have been docketed as one. They are appeals in an action for divorce brought by plaintiff against her husband, based upon cruel and inhuman treatment, and adultery said to have been committed by him. The trial court granted the relief prayed, basing it upon cruel and inhuman treatment, but denied relief on the ground of adultery. Both parties appeal. As defendant first perfected his, he will be called appellant. The two appeals will be disposed of in one opinion.</p>

<p>Appeal from Pottawattamie District Court.— Hon. O. D1. Wheeler., Judge.</p> <p>Action to recover the amount of two accounts held by plaintiff against one Virginia Bobinson, now deceased, from defendant who was her administrator, upon an alleged promise made by him while acting as administrator to pay the same. Defendant first demurred to the petition, and after the overruling thereof answered, pleading the statute of frauds, the statute of limitations, and want of consideration for the alleged promise. On these issues the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.—</p>

— Hon. L. E. Eel-lows, Judge. In an action brought by plaintiff against defendants to recover the rent for certain premises, a landlord’s attachment issued which was levied upon a printing press used by the defendants upon the leased property. In this proceeding various parties who had performed labor for the defendants filed claims asserting a preference to the proceeds of the attached property.

<p>1 Murder in second degree: indictment. An indictment which alleges' that defendant with a deadly weapon, willfully, deliberately, feloniously and with malice aforethought inflicted on the body of deceased a mortal wound of which he then and there died, charges murder in the second degree, although failing to allege in express terms the commission of an assault.</p> <p>2 Voluntary combat: self-defense. Where two parties' prearrange a time and place to meet and settle a dispute by a fist fight, and one, without first offering to retreat, kills the other by the use of a deadly weapon, he cannot avail himself of the plea of self-defense.</p> <p>3 Evidence: declaration of decedent. Where the State contended that defendant and decedent, by prearrangement, engaged in a fight during which defendant killed the deceased by the use of a deadly weapon, the testimony of a witness that he was asked by deceased to accompany them and witness the fight was not improperly admitted, as the conversation took place in the presence of defendant.</p> <p>4 Evidence in rebuttal. A witness whose evidence is clearly rebuttal may testify though he was not before the grand jury.</p>

<p>1</p> <p>Execution sale: proof of notice: sheriff’s deed. Under‘the law of Nebraska the sheriff’s return to a sale of land on execution indicating the publication of a notice of sale, is insufficient to prove such publication, but there must be an affidavit of the publisher subscribed by him to authorize an order confirming a sale, and a sheriff’s deed issued in the absence of such proof of a published notice of sale is of no validity.</p> <p>2 Principal and surety: release of surety : negligence of creditor.Where a judgment creditor, purchasing property sold on execution, fails to use proper diligence in procuring a sheriff’s deed and_ thereby permits another creditor to secure a prior lien on the property, a surety of the debtor is thereby released to the eoctent of the amount which might have been realized had the judgment creditor preserved his rights. Evidence held to show want of diligence.</p>

<p>Ejectment: title: sufficiency of proof. In an action to recover possession of land under an unacknowledged, unrecorded and lost deed, as against a title based on recorded instruments, proof of the deed must be clear and satisfactory. Evidence held insufficient to establish the deed.</p>

— Hon. W. R. Green, Judge. The defendants were charged with the violation of an ordinance of the town of Avoca. A demurrer to the information was sustained and the defendants were discharged. The town appeals.

<p>1 Murder: identity of defendant: alibi: evidence. On a prosecution for murder the evidence is reviewed and held sufficient to take the question of identity of the defendant to the jury and to support a verdict of guilty, notwithstanding defendant’s evidence on the question of alibi.</p> <p>2 Murder in attempted robbery: submission of crime in second degree. Although the statute provides that a murder committed in an attempt to perpetrate a robbery shall constitute and be punished as murder in the first degree, it does not necessarily follow that submission of the issue of murder in the second degree was erroneous, as where the circumstances might raise ' an inference of robbery but there was no actual attempt to take any property.</p> <p>3 Evidence: photograph. Photographs of a room where a murder was committed, though taken subsequently, but shown to be a substantially correct representation of the same as it was at the time of the crime are admissible in evidence.</p> <p>4 Same. Where a witness testified that he saw defendant at another place at the time the crime was committed and that he could identify him from photographs, but failed to do so, the photographs were admissible as affecting the weight to be given his testimony.</p>

— Hon. A. B. Thorneel, Judge. Defendant was indicted with one John Bernstein, charged with the crime of breaking and entering a bank building in the town of Treynor, in Pottawattamie county. Defendant alone pleaded not guilty, and, being convicted, was sentenced to ten years’ imprisonment in the penitentiary. Prom this sentence he appeals.—

— Hon. J. H. Preston, Judge. Proceedings to establish a highway. The appellant appealed from an award of damages, and her appeal was dismissed by the district court. She appeals.—

— ■ TIon. Hugh Brennan, Judge. It appears that in June, 1904, the city of Des Moines, this state, entered into a contract in writing with the Universal Voting Machine Company, of Bloomington, ill., in -which it was provided that said company “ has this day sold and agreed to deliver on board cars at Bloomington, to said second party [the city] 15 voting machines of the model known as the ‘ Universal Voting Machine.’ ” The contract then provides that the city shall pay for…

— Hon. James D. Gamble, Judge. Action at law to recover damages for the death of plaintiff’s intestate, who was struck and killed by one of the defendant’,s trains at a highway crossing in Marion county, Iowa. Trial to, a jury, verdict and judgment for plaintiff, and defendant appeals.—

— Hon. J. H. Preston, Judge. Proceedings at law for the appointment of guardian over the defendant as a person of unsound mind. There was a directed verdict for the defendant, and the ’plaintiffs appeal.—

<p>Appeal from Benton District Court. — -Hon. Obed Caswell, Judge.</p> <p>Appeal from a conviction for murder in the second degree.—</p>

— Hon. G. W. Burn-ham, Judge. In June, 1902, M. G. Albrook and others conceived the notion of organizing a fraternal beneficiary society to be known as the “ Church Federation of America.” Albrook was to be superintendent, and was authorized to arrange for a satisfactory location. On November 24th he addressed the following proposition to the secretary of the Commercial Association at Marshalltown: Head Office Church Federation, Vail, Iowa, Nov. 24, 1902.

— Hon. Obed. Caswell, Judge. Suit on a note and to foreclose a mortgage given to secure its payment. Judgment for the plaintiff on the pleadings. The defendant appeals.—

<p>Appeal from Harrison District Court.— Hon. N. W. Macy, Judge.</p> <p>Action by plaintiff to recover a sum alleged to be due to bim as a tax collector appointed by the treasurer of the defendant county. The defendant made answer, and also, by way of a counterclaim, sought to recover back moneys alleged to have been unlawfully paid out of the county treasury of said county to plaintiff. Trial being had, both the petition and the counterclaim were dismissed, and there was judgment against plaintiff for the costs of the action. Both parties appeal. Plaintiff will be denominated the appellant.— Affirmed on plaintiff’s appeal.</p>

<p>1 Railroads: execution of contracts: authority of officers. Where the by-laws of a construction company gave to its president general supervision of its business and he was actually in charge of its work, his act in executing company contracts, with knowledge and acquiescence of the directors and the company, was binding although not specially authorized.</p> <p>2 Construction of railroads: enforcement of subcontractor’s lien. Where a subcontractor completes his work in accordance with the direction of the chief engineer of the road, who has the authority to direct the work and approve of the same, he is entitled to his compensation, upon certification by the engineer that the work has been performed, although the road bed is not completed in accordance with the original contract of construction.</p> <p>o Subcontractor’s lien: enforcement. Where a railway company was indebted to the contractor in excess of a subcontractor’s claim at the time the latter instituted suit to enforce his lien, the questions of service of the thirty day notice or whether any thing was then due from the company were immaterial.</p>

— Hon. John T. Soott, Judge. Action' in equity to foreclose mortgage. There was a decree of foreclosure, but the plaintiff, claiming a greater recovery than allowed, appeals.—

— Hon. Wm. Hutchinson, Judge. Two appeals were taken to the lower court from sepa-' rate assessments on plaintiff’s property foi; street improvements, and in each case a decree was rendered dismissing the appeal. Plaintiff prosecutes two separate appeals in this court, but for convenience they will be considered together. — ■

<p>1 Insurance: violation of conditions: waiver. Where the agent of an insurance company engaged to procure for plaintiff a stated amount of insurance, and secured a portion from defendant and the balance from other companies as an entire transaction, the defendant is held to have waived a condition requiring consent of the secretary to additional insurance.</p> <p>2 Pro rata loss: how determined. In the absence of other evidence, the amount of insurance stated in a policy is prima facie evidence of the insurable value of the property under Code, Section 1742; but where there are several policies of which defendant company, through its agent, had knowledge at the time its policy was issued, the aggregate amount of insurance constitutes the basis of value for the purpose of determining defendant’s proportion of the loss, under a pro rata loss clause in its policy.</p> <p>3 Amount of recovery: interest. Where a policy of insurance provided for present indemnity after adjustment, but the assured was required to furnish proofs of loss, interest on the amount due from date proofs of loss were furnished should be allowed.</p>

<p>Appeal from Linn District Court.— Hon. J. H. Preston, Judge.</p> <p>Suit in equity to compel defendant to levy assessments to pay the amount of two benefit certificates issued to one Henrietta Arrison by the defendant, a fraternal benefit society. Many defenses were interposed, which we shall notice in the body of the opinion. The trial court granted the relief prayed, and defendant appeals.</p>

<p>1 Trusts: admissibility of parol evidence. While an express trust cannot be established by .parol evidence, yet it is competent for the purpose of showing a transfer of property as security for a debt, especially where the transfer was largely of personal property.</p> <p>2 Assignment for benefit of creditors: accounting: compensation of assignee. Where a creditor, having taken the property of an insolvent concern under an agreement to dispose of the same and pay the debts, is called to an accounting, the invoice of the property to him is a prima facie basis of settlement, but if he acts in good faith and within the limit of his power, he is not required to make good any shrinkage from the invoice value, and should not be deprived of compensation for his services because of an unavoidable shrinkage.</p>

— Hon. W. D. Evans, Judge. Action to set aside conveyances by L. E. Campbell to his children, Erank W. Campbell and Lulu E. Jackson, co-defendant in this action, for fraud as against plaintiff, the administrator of the estate of the mother of L. E. Campbell. Decree for the defendants, from which plaintiff appeals.—

<p>1 Street railways: negligence: evidence. In an action against a street railway company for a death caused by jumping from a moving car as the result of fright, where the evidence was •not conclusive as to whether the fright was caused by the rapid speed of the car or its electrical fire, a refusal to limit the question of negligence to causing the fire was not erroneous. \</p> <p>2 Negligence: evidence: harmless error. Admission of the rules of a street car company limiting the rate of speed, which imposed no. higher degree of care than the law requires, the effect of which was limited by the court, was not prejudicial error.</p> <p>S Same. ' The admission of incompetent evidence subsequently withdrawn, not shown to have been prejudicial, was not reversible error.</p> <p>4 Negligence: employment of servants. Evidence that a street car conductor became frightened at an electrical disturbance and jumped from the car, was competent on the question of the company’s negligence in employing incompetent servants.</p> <p>5 Negligence: instructions. An instruction that a street car company is bound to transport its passengers safely was not misleading, as conveying the impression that it is an insurer of the safety of ,its passengers, when construed in the light of other instructions correctly stating the measure of defendant’s duty.</p>

— Hon. W. G. Thompson, Judge. Action to recover damages for failing to properly deliver a telegram. Trial to jury, and verdict and judgment in favor of plaintiff. Defendant appeals.—

— Hon. B. H. Miller, Judge. Suit in equity to enjoin defendants who'are the mayor, clerk, and aldermen of the town of Walker, from paying out or using any of .the general funds of said town for the use of a team and driver in sprinkling the streets of said town, and from using water from the town waterworks system for street sprinkling. Defendants’ general equitable demurrer to the petition was overruled, and a decree was entered as prayed. Defendants appeal.—

— Hon. J. H. Rothrock, Judge. This is a proceeding in garnishment. Plaintiff is a judgment creditor of R. H. Fisher, and under execution issued caused the school district of Silver Lake township, Dickinson county, and the officers of said district, to be garnished as supposed debtors of said Fisher. The garnishees answered, and upon issue joined a hearing was had before the court, resulting in a judgment in favor of plaintiff. The garnishees appeal.—

— Hon. W. G. Thompson, Judge. This is a proceeding by habeas corpus to determine the right of defendants to the custody of the plaintiff. The trial judge awarded the custody to Jane S. Hillock, who instituted the suit as next friend, and the defendants appeal.

— Hon. B. H. Miller, Judge. Action at- law to recover damages for personal injuries received in defendant’s service. There tvas a verdict and judgment for defendant and plaintiff appeals.—

— Hon. H. Bank, Jr., J Tidge. Application of the widow of William Brandes to have her distributive share in his estate set apart to her. Mina and Conrad Hoyer and William and Edward Vogel resisted as to certain lots, and in cross-petitions prayed for affirmative relief. The cross-petitions were dismissed, and admeasurement of dower ordered. The above-named cross-petitioners appeal.—

— Hon. James H. Bothrock, Judge. Action to recover damages for personal injuries, alleged to be permanent, claimed to have been received by-plaintiff by réason of an alleged fajl caused by a defective side-walk in the defendant city, and, in addition thereto, under assignment from plaintiff’s husband, the damages for loss of service resulting to him by reason of the same injury to plaintiff. Verdict and judgment for $2,000 in plaintiff’s favor, from which defendant appeals.—

— Hon. J. H. Preston. Judge. Pxaintiee appealed to the district court from an assessment on moneys and credits against him for the years 1900 to 1903, inclusive. Upon a trial in that court it was found that plaintiff was not subject to an assessment on moneys and credits for the years named, and the assessment was vacated and set aside. Defendant appeals.

— Hon. Z. A. Church, Judge. Action in equity to cancel mortgage given on the property of plaintiff. Cross-petition by defendants to foreclose the same mortgage. Decree of foreclosure as prayed in cross-petition, and plaintiff appeals. W. M. Bremner, W. A. Graham, and Frick & Crandall, for appellees.

— Hon. J. H. Botiirock, Judge. Action in equity to quiet title to real estate. Defendants by a cross-petition assert that a tax deed under ■which plaintiff claims title is void, and they demand that the same be set aside, and that they be allowed to redeem. The trial in the court below resulted in a decree in favor of plaintiff, and the defendants appeal.

— Hon. W. G-. Thompson, Judge. Action by plaintiffs, claiming to be the owners in common of a tract of land, to restrain the sale thereof by defendant Ellyson, as sheriff, under execution issued under a judgment rendered in favor of defendant Drowning against one Win. D. Hickey and assigned to defendant Davidson. Decree for plaintiffs, from which defendants appeal.

<p>Appeal from Linn District Court, Hon. J. H. Preston, Judge.</p> <p>Action to enjoin the collection of and cancel a judgment. Decree as prayed, from which defendants appeal.</p>

<p>1 Transactions with decedents: competency of witness. Where a right asserted by a claimant against an estate depends for its existence and validity upon a transaction between the deceased and a third person, the evidence of such third person is not competent under Code Section 4604, to prove the transaction.</p>

<p>Appedl from Dallas District Court.— Hon. J. D. Gamble, Judge.</p> <p>Action in equity to foreclose mortgage. Decree for plaintiff, and defendants appeal.—</p>

<p>Appeal from Pottawattamie District Court.— Hon. O. D. Wheeler, 'Judge.</p> <p>Suit to foreclose a mortgage. Judgment for tbe defendants. The plaintiff appeals.—</p>

<p>1 Intoxicating liquors: consent petition : denial of sufficiency. Any written statement filed in the district court by a citizen of the county which, liberally construed, amounts to a general denial of the sufficiency of a statement of consent to sell intoxicating liquor, is sufficient to give the court jurisdiction to dispose of specific objections thereto or to review a finding of its sufficiency by the board of supervisors.</p> <p>2 Notice of appeal: service. Notice of appeal need only be served upon the person actually filing the consent petition, although his connection with the matter was simply that of an attorney employed to pass upon its sufficiency.</p> <p>3 Appeal: who may prosecute. An appeal from the ruling of the district court on the sufficiency of a consent petition may be taken by any citizen of the county and is not the exclusive duty.of the county attorney.</p> <p>4. Denial of consent petition: sufficiency. The denial of a consent petition which stated that it was filed by a certain person, a citizen of the county, was not' subject to the objection that it did not allege citizenship</p> <p>5 Presumption as to evidence. Where the evidence has not been properly preserved, and there is no averment in the abstract that it contains all the evidence, the supreme court will presume that the evidence produced on the trial warranted the findings of the court.</p>

— Hon. B. H. Miller, Judge. Action of mandamus to compel the defendants, directors of the independent school district of Marion, to admit tlfe plaintiff to the privileges of the high school of said district, from which the defendants are excluding him under an order of suspension for violation of rules and regulations made by them. On demurrer to plaintiff’s petition, judgment, was rendered for the defendants, from which the plaintiff appeals.

— Hon. M. C. Matthews, Judge. Action to recover ' damages for injuries received tbrougb the alleged negligence of defendant in allowing an unsafe structure to be constructed and remain in the stree! of defendant city. Verdict for plaintiff for $3,500.- From judgment on this verdict, defendant appeals.

<p>1 Foreign judgments: enforcement. Where a judgment by confession under a warrant of attorney has been regularly entered in the state where the debtor resided when the power was given, and the judgment is in conformity with the law of that state, it will be enforced in Iowa, even though the law of this state does' not authorize the entry of a judgment in the same manner.</p> <p>2 Confession of judgment by attorney. A clause in a note authorizing any attorney to appear for the maker at the suit of the payee and confess judgment, authorized a confession of judgment without the formalities of an ordinary proceeding.</p> <p>3 Provision for stay of execution: effect. The provision in a judgment note that upon a confession of judgment execution should be stayed until a certain date, which was the date of its maturity, did not limit the power to confess judgment to a time prior to that date, but simply , indicated an intention that no execution should issue prior to maturity of the debt.</p> <p>4 Confession of judgment. A note providing for a confession of judgment thereon “as of the last week, or any other subsequent term or time after the date thereof ” authorized confession of judgment in vacation.</p> <p>5 Enforcement of foreign judgment: jurisdiction. Where a foreign judgment has been duly entered the omission of some detail, as riling with the court the instrument upon which it was based, will not affect its validity in a suit thereon in this state.</p> <p>6 Foreign judgments: limitation of actions. Although action on a note in this jurisdiction may have been barred prior to the time judgment was rendered thereon in a foreign state, yet if the foreign judgment was regularly entered the fact that the note was so barred here will not defeat an action on such judgment brought in Iowa within twenty years of its rendition.</p> <p>7 Foreign judgments: sufficiency of record. The record of a foreign judgment by confession which shows appearance, confession, date, principal sum due, amount of costs, date from which interest is to be computed and is officially attested, sufficiently establishes the validity of the judgment.</p> <p>8 Confession of judgment by attorney: non residence of debtor. Where a debtor gave his creditor a note containing authority to any attorney to appear for him and confess judgment thereon, in accordance with the law of the state where the contract was made, such power authorized the entry of judgment after the debtor had become a non-resident, without service of notice or other appearance for him than by the attorney to whom the power was given.</p>

— Hon. Z. A. Church, Judge. Action at law to recover damages. There was judgment for defendant, and plaintiff appeals. The material facts are stated in the opinion.

<p>Appeal from. Sac District Court.— Hon. H. M. Powers, Judge.</p> <p>The defendant was convicted of an assault with intent to commit rape, and appeals.—</p>

— 'Hon. Z. A. Chubch, Judge. Action at law by plaintiff to recover damages from defendant, her father-in-law, for alienating the affections of her husband. There was a verdict and judgment in favor of plaintiff, and defendant appeals.—

<p>1 Wills: devise to debtors : BANKRUPTCY. Where a devisee was given a life estate in real, property provided she paid certain notes held by the testator within a certain time, and in case of nonpayment the executors were to sell the land, deduct the amount ■ of the notes, whether barred by statute or not, and invest the surplus for the benefit of the devisee, a discharge of the devisee in bankruptcy did not constitute payment so as to deprive the executors of the right to carry out the provisions of the .will.</p>

<p>Appeal from Carroll District Court.— Hon. Z. A. Church, Judge.</p> <p>Suit in equity to correct an alleged mistake in a deed from plaintiff to A. Brutsche, and to quiet plaintiff’s title to the property covered thereby. Defendants denied the alleged mistake, pleaded adverse possession, the statute of limitations, and laches. The case was tried to the court resulting in a decree dismissing plaintiff’s petition, and quieting title in defendant A. J. Brutsche. Plaintiff appeals.</p>

— - Hon. J. H. Richard, Judge. Action to compel the construction of an overhead crossing at a point designated by the owner of land on each side of defendant’s railroad. Judgment as prayed, from which defendant appeals.—

— Hon. A. J. House, Judge. The defendant was indicted for the murder of one Thomas M. Winnemore. There was a verdict and judgment of guilty of manslaughter, and the defendant appeals. — ■

<p>Intoxicating liquors: sale by use of samples. The giving of a 1 drink of liquor from samples by the traveling salesman of a foreign dealer, for the purpose of testing the quality of the 'liquor which was to be sold in a foreign state where the sale . was lawful, was not a violation of Code Section 2382.</p>

<p>Appeal from Lucas District Court.— Hon. Frank W. Eichelberger, Judge.</p> <p>The case is wrongly entitled. It should be “ The Spring Lake Ice Co. v. The Chariton Ice Co.” It is an action at law to recover the amount of certain expenses incurred by plaintiff, Spring Lake Company, in putting up ice during the winter of 1902 and 1903, which expenses it is claimed defendant, Chariton Ice Company, agreed to pay. Defendant-denied the agreement, and pleaded a settlement- and an estoppel. The case was tried to the court, resulting in a judgment for plaintiff. Defendant appeals.—</p>

— Hon. Frank W. Eichelberger, Judge Action of forcible entry and detainer. Tbe defendants were found guilty in tbe justice court, and upon appeal this finding was affirmed. They appeal.—

<p>Appeal from Jackson District Court.— Hon. J. W. Bolinger, Judge.</p> <p>The'opinion states the case.</p>

— Hon. N. W. Maoy, Judge. This is an action to enjoin tbe defendants from letting contracts under proceedings for the construction of a public ditch, and to compel them to carry out a contract alleged to have been made by them with plaintiff for the construction of a portion of the proposed ditch under prior proceedings. After a trial on the merits, the court entered a decree denying plaintiff relief, from which decree this appeal is prosecuted.—

Wm. Hutchinson, Judge. This is a quo warranto proceeding to test the legality of the incorporation of the Independent School District of Little Rock in Lyon county, Iowa. The trial court found that the district had no legal existence; that its officers wefe acting illegally, and they were ousted from their official positions ; that the independent district had no legal existence; and that all acts relating to the formation thereof were void. Defendants appealed.'

— Hon. Edmund Nichols, Judge. Controversy as to wbo is entitled to share in the estate of Luther E. Colton, deceased, as his widow — Eliza A. Col-ton or Frankie Colton. Decree was entered declaring the former to have been his lawful wife, and the administrator of the latter appeals.

<p>Appeal from Monroe .District Court.— Hon. C. W. Vermillion, Judge.</p> <p>Appeal by defendant from rulings on a demurrer and motion to strike.—</p>

— ■ Hon. Geo. W. Wakeeield, Judge. Action to recover damages for personal injuries resulting from an accident due to a defect in a sidewalk. Verdict and judgment for plaintiff for $750. Defendant appeals.—

— Hon. ¥m. Hutchinson, Judge. Action at law to recover certain personal property, claimed by tbe plaintiff and levied upon by the'defendant under an exeeution directed against the property of one J. H. Smith. Judgment for plaintiff upon demurrer to defendant’s answer, and defendant appeals.—

— Hon. James H. Smyth, Judge. Action to partition real estate and for the interpretation of a will, under which the plaintiffs and defendants claim interests in the property involved. By the decree the interests of the respective parties were determined, and provision was made for partition of the property. Defendants appeal.

— IIon. W. G. ■ Clements, Judge. Action to recover taxes upon property of the defendant omitted from taxation for the year 1899. Defendant demurred to the petition, and its demurrer was sustained. Plaintiff' appeals.—

<p>Inheritance tax: indebtedness due and held by a nonresident. Evidences of indebtedness owing by residents of this state, which were owned and held by a nonresident at the time of her death, are not within the jurisdiction of this state for the purpose of imposing an inheritance tax.</p>

— =IIow. H. M. Towner, Judge. Originally this was an action of replevin to recover the possession of 105 head of steers from the defendant, Lesan. In that action the Bowles Live Stock Commission. Company intervened, and claimed a right to the property under a mortgage executed to it by defendant, Lesan.

— Hon. W. G. Clements, Judge. Action for balance alleged to be due plaintiff as tbe holder of certain shares in the defendant association. From judgment for $192.50, defendant appeals.—

— Hon. William Hutchinson, Judge. In January, 1904, proceedings were instituted by tbe county treasurer and tbe county auditor to assess the corporate shares of stock of tbe Farmers’ Loan & Trust Company, valued at $600,000, for tbe years 1889 to 1903, inclusive, as property which bad been omitted, or withheld from assessment during all of said years. In April, 1904, tbe matter came on for bearing, and said officers refused to list or assess said stock to tbe company.

<p>Appeal from Davis District Court.— Hon. O. W. Vermillion, Judge.</p> <p>Action to recover commissions alleged to have been earned by plaintiffs under an agreement to make or procure a sale of land owned by the defendant. A jury having been waived, the case was tried to the court. There was judgment for defendant, and plaintiffs appeal.—</p>

<p>Appeal from Adams District Gourt.— Hon. W. E. Miller,' Judge.</p> <p>Suit in equity to recover a note and a mortgage securing the same, alleged to be the property of the plaintiffs. The defendant Smith answered claiming to be the owner thereof. There was a trial and a judgment for the plaintiffs. The defendant Smith alone appeals.—</p>

— Hon. Frank W. Eichelberger, Judge. Suit in equity; for the partition of real property. There was a decree fixing the interest therein of the several parties to the action and ordering partition by sale. The plaintiff and some of the defendants, whose interests are the same, appeal.—

— Hon. William Hutchinson, Judge. Action to recover the price paid for a heating furnace, and for damage, resulted in judgment against defendant, from which he appeals.—

<p>Telegraphs: delay in delivering message: damages. Negligent delay in delivering a telegram which contained simply, an inquiry as to the price of land, but no proposition to buy, which, if accepted would constitute a contract of sale, will not authorize a recovery of damages for the delay, based on a loss of the sale of the land, as such damages are too remote and speculative.</p>

— Hon. ' W. S. Withrow, Judge. Action to recover damages for a personal injury. Briefly stated, the circumstances out of which the accident resulting in such injury arose were these: The defendant was engaged in constructing a telephone line in Burlington, this state.

<p>Malpractice: standard of skill: instruction. In an action for malpractice an instruction relating to the degree of skill and learning required of a physician, which fails to limit such skill to that ordinarily possessed by physicians practicing in similar localities, is prejudicial; and the error is not overcome by the testimony of physicians, as to the standard of skill required of defendant, who reside and practice at other towns of dissimilar size.</p>

— Hon. Byron W. Preston, Judge. Action in equity to compel defendant to repair a defective wall in a building of which defendant is the owner of the first story and the plaintiff the owner of the second story. After hearing the evidence the trial court dismissed plaintiff’s petition on the merits and rendered judgment for defendant. Plaintiff appeals.—

— Hon. Georoe W. Wakeeield, Judge. Suit in equity for the abatement of a liquor nuisance. Decree for plaintiffs, and defendants Miller and Clark appeal.—

<p>Appeal from Osceola District. Oourt. — Hon. Wm. Hutchinson, Judge.</p> <p>Action to recover damages for personal injury. There was an instructed verdict, and judgment for defendant, and plaintiff appeals.—</p>

— Hon. B. W. Preston, Judge During tlie regular March, 1905, term of the district court, the plaintiff filed a petition asking a divorce from the defendant on the ground of cruelty, and further asking that she be allowed temporary alimony, and that a writ of attachment issue against the property of the defendant. This petition was presented to the court on the 16th day of March, and it was ordered that an attachment issue as prayed.

Court.— Hon. James 3D. Smyth, Judge. This is an appeal from an order retaxing costs, in an action wherein plaintiff recovered judgment from defendants in the district court of Des Moines county. The clerk taxed mileage and fees for certain witnesses subpoenaed by plaintiff in an action brought by it against the defendants wherein it recovered judgment as before stated.

— Hon. B. W. Preston, Judge. Action at law to recover damages for tbe death of John O’Connor a brakeman in the defendant’s employ, due, as is alleged, to defendant’s negligence. The answer was a general denial. At the conclusion of plaintiff’s evidence the trial court directed a verdict for defendant, and plaintiff appeals.—

— Hon. G. W. Wake-field, Judge. Action to establish a lost comer. There was a judgment dismissing the petition, from which the plaintiff appeals.—

— Hon. W. L. McNamara, Judge. Action on an account for money advanced to defendant, who was the agent of the plaintiff. Defendant, denied liability on the account, and interposed a counterclaim for compensation under a contract. Verdict for plaintiff for a portion of the amount of its claim, and from judgment thereon defendant appeals.—

<p>1 Deeds: presumption as to delivery. A presumption of delivery arises from the fact that a deed was given tó one of the grantees and was retained by him for two years and until his death; and it cannot be overcome except by clear evidence that delivery was not intended.</p> <p>2 Partition of homestead. A homestead, which is not liable for the debts of a deceased owner, may be partitioned prior to a settle^ ment of his estate.</p>

<p>1 Taxation: cancellation of sale. By Code Section 1444 a tax deed is -made conclusive evidence that the grantee therein named was the purchaser at the sale; but, without the aid of the statute it would be prima facie evidence of that fact, which, to avoid the sale would have to be overcome by proof that the purchaser was in fact another and that the grantee did not succeed to his rights.</p> <p>2 Same. Where the real purchaser at a tax sale acts through an agent and the certificate is issued in the agent’s name, the substitution of the name of another agent as grantee in the tax deed, for the convenience of the principal, will not render the sale void on the theory that the grantee is not the purchaser.</p> <p>3 Payment of bids. Payment for land purchased at tax sale, which is made immediately after the sale, is a compliance with Code Section 1426 requiring that the amount bid shall be paid forthwith; but if this were not so, slight delay in payment is not a matter of which the owner can take advantage to set aside the sale.</p>

<p>1 Mutual Benefit Associations: advance assessment: application of same. The advance mortuary assessment paid by a member of a mutual benefit association on joining the society, cannot be applied on an assessment levied prior to his membership, under regulations requiring new members to pay an advance assessment and providing that death losses shall be paid from equal contributions of the members.</p> <p>2 Same. A rule that each new member of a mutual benefit association shall pay an advance assessment does not require him to keep an advance assessment continually paid up.</p>

— Hon. James A. Howe, Judge. Actions at law to recover taxes paid under protest, by the various insurance companies, appellants, to the defendants, who are respectively the Treasurer and Auditor of State. It is claimed that the statute, under which the taxes were exacted, is unconstitutional and void. Defendants’ demurrers to the petitions were sustained, and judgments were rendered against the several insurance companies for costs.

This is a' proceeding by certiorari in this court to secure tbe annulment of a judgment rendered by defendant as judge of the district court in and for Washington county in a proceeding- in which the plaintiffs in this action were the plaintiffs, and Laura M. Graham, in her own right and as executrix of the last will of Wm. H. Graham, deceased, was defendant, by which judgment said will was confirmed and established on the prayer of the defendant as against plaintiffs.—

<p>1 Master and Servant: negligence of master: evidence. In , an action for injuries to a servant received in rolling an iron wheel from one shop to another, the evidence is reviewed and held insufficient to show negligence of the employer in failing to furnish a safe place to work, or in failing to furnish necessary help.</p> <p>2 Same: inability of fellow workman. Evidence reviewed and held insufficient to show that the physical inability of a fellow workman, assisting in moving an iron wheel, contributed to plaintiff’s injury.</p> <p>3 Contributory negligence: evidence. A master is not liable for injuries to a servant caused by the negligence of the servant. Evidence held to show negligence of the servant.</p> <p>4 Negligence: failure to instruct a servant. It is the duty of the ma'ster to instruct an inexperienced employé in the performance of a service attended with a danger of injury which is not known to or appreciated by the employé. Evidence held sufficient to take the case to the jury on the question of' the employer’s duty to instruct the servant with respect to moving a large iron wheel.</p> <p>5 Instruction: negligence of fellow workman. In an action for injury to a servant occasioned in moving a large iron wheel in conjunction with a fellow workman, an instruction that plaintiff could not recover if the accident was the result of his own negligence, was not erroneous in failing to include the negligence of his'co-employé.</p> <p>6 Instruction: exercise of care. An instruction that “if at the very time of the injury” plaintiff failed to exercise ordinary care, he could not recover, was not erroneous.</p>

— Hon. C. W. Vermillion, Judge. Action to enjoin the issuance of a sheriff’s deed under a sale of the premises in controversy on execution issued under judgment of defendants Sherman Bros, against Rosa Furestenburg. Plaintiff alleges that she is the owner of the premises in question, and that Rosa Furestenburg has no title or interest therein subject to execution sale.

— Hon. Edmund Nichols, Judge. Suit in equity to quiet title to certain reax estate in plaintiffs and defendants Emma Deardorff and Etbel Elva Jenkins, against defendants Joseph Henry Jenkins, Edward Franklin Jenkins, and the wife of Joseph H. Jenkins. • The defendant Joseph H. Jenkins denied the ownership of plaintiffs and his codefendants, and pleaded that he was the owner of four thirty-fifths of said real estate.

— ITon. William Hutchinson, Judge. Suit in equity to determine the ownership of certain land within the limits of the city of Sioux City. There was a trial and a judgment for the defendants, the Chicago & Northwestern Railway Company and the Dubuque & Sioux City Railroad Company. The plaintiff alone appeals.—

— Hon. C. W. Vermillion, Judge. The defendant was indicted for tbe crime of murder, and was convicted of the crime of manslaughter. From the judgment entered on the verdict, he appeals.—

— IIon. W. G. Thompson, Judge. The defendant was indicted for the crime of larceny from a building in the nighttime, and, from the judgment had upon trial, he appeals.-

— Hon. J. H. Apple-gate^ Judge. Appeal by plaintiff from an order of the court disallowing his claim against the estate of which defendants are administrators.—

<p>Appeal from, Mitchell District Court.— Hon. Clieeord P. Smith, Judge.</p> <p>The opinion states tbe case.—</p>

<p>Appeal, from Polk District Court.— Hon. C. P. Holmes, Judge.</p> <p>Action at law to recover damages for a personal injury. Judgment for defendant upon demurrer to petition. Plaintiff appeals.—</p>