Volume 131 — Iowa Reports

— Hon. William E. Hiller, Judge. Indictment for murder. Verdict of murder in tbe second degree, and judgment of imprisonment in tbe penitentiary for tbe term of twenty years. Defendant appeals.

— Hon. J. P. Kennedy, Judge. Action of mandamus to compel the defendant railway company to switch ears on the plaintiff’s private track and to recover damages for a failure so to do. There was a trial to the court, and a judgment for the defendants. The plaintiff appeals.—

— Hon. F. E.-Gay-nob, Judge. Action of mandamus to compel the defendant to furnish the plaintiff water for its school buildings. Judgment on a demurrer for the defendants. The plaintiff appeals.—

— Hon. John F. Oliver, Judge. Action at law to recover damages for death of plaintiff’s intestate, alleged to bave been caused by the defendant’s negligence. Verdict and judgment for the plaintiff, and defendant appeals.—

— Hon. A. S. Blair, Judge. Action at law to recover monies due as rent of real estate. The amount demanded in the petition was $378.80. The jury returned a verdict in favor of plaintiff in the sum of $120. A motion for new trial by plaintiff was overruled, and there was judgment on the verdict. Plaintiff appeals.—

Appeal, from Bremer District Gourt.— Hon. J. F. Clyde, ■Judge. • Suit to recover damages for personal injuries. Trial to a jury, and verdict and judgment for the plaintiff. Tbe defendants appeal.—

<p>Appeal from Boone District Court.— Hon. J. R. Whitaker, Judge.</p> <p>Notion at law to recover a commission for the sale of real estate. From a directed verdict for plaintiffs, defendants appeal. — -</p>

<p>Appeal from, Wayne District Court.— Hon. H. M. Towner, Judge.</p> <p>Action to recover damages for personal injuries alleged to have been suffered by plaintiff as the result of being thrown or pushed from the platform of a moving passenger train of the defendant by a brakeman in defendant’s employ. Verdict and judgment for plaintiff, and defendant appeals.—</p>

— Hon. J. E. Whitaker, Judge. Action on a bond given by defendant Stephens, who was a contractor for the construction of a poor farm building for Boone county, to pay and discharge all indebtedness that might be incurred by him in carrying out said contract and complete the building free of all claims or obligations.

— Hon. B. W. Preston, Judge. Action at law to recover upon a policy of life insurance. At the close of the evidence for plaintiffs, there was a directed verdict in favor of defendant. Plaintiffs appeal.—

— Hon. A. H. McVey, J udge. Plaintiff recovered judgment against the defendant, George K. Hobson, and in this action seeks to subject certain real estate to its satisfaction. On hearing the petition was dismissed. The plaintiff appeals.—

— Hon. Wk. Hutchinson, Judge. The defendant purchased oats from a suh-tenant of plaintiff, and this action is to recover for their conversion. From judgment as prayed, defendant appeals.—

— Hon. Byron W. Preston, Judge. Action to recover damages for personal injuries suffered by the plaintiff, while in defendant’s employ as a brakeman on a coal train, in being run over by the wheels of one of the cars. There was a verdict for plaintiff and judgment thereon, from which judgment the defendant appeals.—

— Hon. Pranklin O. Platt, Judge. Action for damages occasioned by falling on tbe sidewalk. Yerdict was directed for defendant, and judgment entered thereon. The plaintiff appeals.—

<p>Appeal from Keokuk District Court.— Hon. B. W. Preston, J udge.</p> <p>The opinion states the case.—</p>

— Hon. L. E. Fellows, Judge. Action to' recover damages to real estate. A demurrer to the petition was sustained. Plaintiff refusing to plead over, there was judgment against her for costs, and she appeals.—

Appeal •from Madison District Court. ■ gate, Judge. •Hon. J. H. Apple- Suit in equity to cancel a note and a deed to a certain house and lot made as security for the note. Trial to the court, decree for plaintiffs, and defendants appeal. —

<p>Appeal from, Mitchell District Court.— Hon. J. F. Clyde, Judge.</p> <p>Suit iu equity for a partnership accounting. Decree and judgment for plaintiff, and defendant appeals.—</p>

— Hour. A. P. Barker, Judge. Action for reformation of contract to convey land and for specific performance thereof. After a trial on the mei’its a decree was entered dismissing plaintiff’s petition, and the plaintiff appeals.—

— Hon. Byron W. Preston, Judge. Suit in equity to have the title to certain land standing in the name of- George D. Wood, deceased, declared to be held by him in trust for the bank of which plaintiff is receiver. Elizabeth Wood is the widow of. George D. Wood, deceased, and she denied the allegations of plaintiff’s petition and asked that her interest in the land as a survivor of her husband be- protected.

— Hon. O. A. Byington, Judge. Suit in equity to enjoin defendants from casting water through a tile drain upon plaintiff’s land, to require them to take up and remove the tile and fill the ditch, and for damages. Upon issues tendered by defendants to which we shall presently refer the case was tried to the court, resulting in a decree dismissing plaintiff’s petition, and she appeals.—

— Hon. James A.’ Howe, Judge. Action at law to recover for services rendered- by plaintiffs as attorneys at law under a written contract with the defendants. There was a directed verdict and judgment for plaintiffs, and defendants appeal.—

— Hon. J. R. Whitaker, Judge. Suit in equity to enjoin defendant from tiling and draining certain sloughs and ponds upon his own land in such a manner as to divert or increase the natural flow of the water. Defendant denies the diversion of the water, and denies that he is intending to increase the flow thereof upon plaintiff’s land. He further averred that he- was intending to place a tile in a ditch that had existed for more than eighteen years.

— Son. Obed Gas-well, Judge. This is an action of mandamus brought to obtain an order commanding the city council of the city of Marshall-town to employ the plaintiff as city clerk of said city. It is bottomed on chapter 9 of the Laws of the Thirtieth General Assembly, which reads as follows: Section 1. Preference in Appointments and Promotions.

— Hon. ¥k. Gr. Thompson, Judge. Action of quo warranto to determine the right to hold the office of subdirector in a school township. There was a trial to the court, and a judgment for the plaintiff, from which the defendant appeals.—

— Hon. J. H. Roti-irock, Judge. Suit in equity to foreclose a mortgage given to secure a part of the purchase price of land.

— Hon. J. H. Preston, Judge. Suit in equity to determine and establish the boundary line between plaintiff’s and defendants’ premises. The trial court granted the relief prayed, and defendants appeal.—

— Hon. W. G. Thompson, Judge. Action at law against the defendant Carroll, county treasurer, and the surety on his official bond, for the wrongful and malicious collection of certain taxes from one E. F. A. Stevens, which taxes, it is alleged, were not due or owing the county. Defendants, among other things, demurred to the petition, and their demurrer was sustained. Judgment was thereupon entered against plaintiff, and he appeals.—

— Hon. L. E. Eellows, Judge. Suit in equity to quiet title and- to partition certain real estate. Decree dismissing plaintiff’s petition, as well as the claims of certain defendants. Plaintiff and some of the defendants appeal.—

<p>Appeal from Union District Court.— Hon. H. M. Towner, Judge.</p> <p>Action for malicious prosecution. The defendant 'appeals from judgment rendered on a uerdict against him.—</p>

<p>Insurance: vacancy clause: waiver. The disclosure in an application for insurance that the applicant holds simply a sheriff’s certificate of sale of the property will not operate as a waiver of a provision in the policy that it shall be void in case the premises become vacant.</p>

<p>Appeal from. Crawford District Court.— Hon. Z. A. Churci-i, Judge.</p> <p>Action in replevin, verdict and judgment for the defendant. The plaintiff appeals.- —</p>

— Hon. Clifford P. Smith, Judge. Appeals from an order requiring the Gates Lumber Company to pay a part of the claimants’ bills for services, ' The opinion states the facts.—

— Hon. L. E. Fellows, J ndge. Action to recover damages for personal injuries received by reason of a defect in defendant’s sidewalk. Verdict and judgment for defendant. Plaintiff appeals.— Affirmed.

<p>Forgery: admissions of defendant. On a prosecution for forgery in raising a check, the admission of defendant that he “ put on a little” was competent.</p>

<p>Appeal from Page District Court.— IIon. A. B. Thornell, Judge.</p> <p>Ti-ie territory of the Independent School District of McCowen lies contiguous to that of the Independent School District of Jackson, and both are wholly within Nodaway township in Page county. A tract of land fenced and cross-fenced without reference to section or half section lines and not fenced on the lines separating the above districts, consisting of about one thousand one hundred acres, owned by Ed Anderson, was operated as one farm. About two-thirds of the land, including most of the pasture and barn, lies in the McCowen district, while the other one-third, on which was located a dwelling house in which Eric Wahl, who as partner of Anderson, managed the farm, resided with his family, was in the Jackson district, and his children attended the school therein. The cattle and colts were owned by these men as partners, but one-half was assessed to each and the assessment with thát of the horses and mules belonging to Wahl amounted to $7,432, and all were kept the greater part of the year preceding January 1, 1905, on the land in the McCowen district and was owned by them on that day. Anderson lives in another county. The assessor ^entered the property as assessable for school purposes in the Jackson district. Anderson and Wahl had a large amount of live stock which was kept on the land in the latter district during the time referred to. The residence mentioned is the only one on the farm, and Wahl’s family the only one living thereon. Neither Wahl nor Anderson have made any complaint as to the assessment; but both object to having any part of the property assessed for the benefit of the McCowen district. The directors of the latter district presented a petition reciting, in substance, the foregoing facts and praying that the matters stated be looked into and that property,</p> <p>such as should be, be entered for assessment in the McCowen district, to the local board of review of Nodaway township. The defendants moved that it he dismissed for want of jurisdiction. This was overruled, but, on hearing, relief,: denied. Thereupon an appeal was taken to the district court, where the motion was refiled and sustained. The petitioners again appeal.—</p>

— Hon. W. S. With-row, Judge. Under an indictment for perjury, defendant was convicted and sentenced, and from the judgment he prosecutes this appeal. —

— Hon. W. G. Clements, Judge. Suit to recover damages for .breach of a contract of marriage. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.—

<p>Accidental insurance.: construction of policy: variance by parol. 1 Where a policy of accidental insurance plainly defines the terms and conditions on which the insured may recover, parol evidence, in the absence of allegations of fraud, is inadmissible to establish representations of an agent, or an understanding by the insured that indemnity could be recovered on conditions clearly excluded by the terms of the policy.</p> <p>Contracts: proof of oral addition. The parol provisions of a 3 contract, partly in writing and partly oral, can only be proven where something is added to the writing not inconsistent therewith.</p> <p>Evidence: waiver of objection. Upon the introduction, over ob-3 jection, of incompetent evidence relative to representations of an agent in procuring insurance, the fact that the objecting party afterward called and examined the agent as to the transaction was not a waiver of the right to insist on the objection.</p>

<p>Highways: establishment: presumption. Where a board of s'u-1 pervisors acquired jurisdiction in a proceeding to establish a highway a presumption as to the legality of subsequent proceedings arises.</p> <p>Appeal: abstract: amendment. Where the appellee argues a 2 question on appeal which was not’ raised in the trial court, the appellant may file an amendment to his abstract to show the record on the point thus raised, and the objection that it was filed after argument will not obtain.</p> <p>Highways: adverse possession. One purchasing land along which 3 a highway has been legally established is charged with notice of its statutory width and cannot acquire title to any portion of the same by mere adverse possession unsupported by claim of right or color of title.</p> <p>Highways: occupancy and improvement: estoppel. The public 4 may be estopped from interfering with a landowner’s possession of a portion of the highway, where he has made valuable improvements which have been knowingly permitted to remain thereon for a long time; but the mere planting of a willow hedge on a portion of the highway so occupied which has remained for a period of twenty years will not work such an estoppel.</p>

<p>Evidence of value: competency of witness. The fact, of owner-1 ship of property affords proof of competency to testify to its value.</p> <p>Insurance: construction of policy. The question of what items 2 of property are covered by the terms “ building ” and “ machineiy” as used in describing property in a policy of insurance are for the court to determine.</p> <p>Pleading: special meaning of words. To permit proof that words 3 in common use have a peculiar meaning among insurance companies such meaning should be specially pleaded.</p> <p>Insurance: what included in the term “ machinery.” The term 4 “ machinery,” as descriptive of property included in an insurance policy. covering a laundry and machinery, embraces the boiler, pipes and fittings used for motive power and in providing steam for drying purposes.</p> <p>Insurance of fixtures. Where a policy of insurance covered a build-5 ing and machinery therein, and the building stood upon leased ground, the fixtures were covered by the clause of the policy insuring the machinery.</p>

— Hon., W. G. Clements, Judge. The defendant was appointed administrator of the estate of Thomas Pasley, deceased, June 6, 1901. On August 7th of the same year Susan Hankins filed her claim with the clerk of the district court in words following: “ July 13, 1901.

<p>Chattel mortgages: description: constructive notice. To constitute the record of a chattel mortgage constructive notice thereof, the description of the property must be sufficiently definite so that one examining the records may be able from the description there found to ascertain the property with reasonable certainty.</p> <p>In the instant case the description is held too indefinite to comply with the rule.</p>

<p>Negotiable instruments: execution: fraud. The concealment of 1 the printed portion of a contract at the time of signing will not render the instrument void, in the absence of a fraudulent intent in so doing.</p> <p>Ratification. Where one of several purchasers of property con-2 tended that the note given by him for his share of the price was fraudulently obtained, but there was evidence that he joined with the others in receiving and arranging for the care and management of the property, with a knowledge that they signed'the same contract, the issue of-ratification should have been submitted to the jury.</p>

— Hon. L. E. Eel-lows, Judge. Action at law upon an accident benefit certificate in the defendant company for an amount agreed to be paid for the breaking of an arm. Defendant denied that plaintiff’s arm was so broken as to entitle him to recover. The case was tried to the court, resulting in a judgment for plaintiff, and defendant appeals.—

— Hon. Franklin ■ C. Platt, Judge. Suit in equity to enjoin defendants from enforcing the collection of taxes levied by the executive council of the state upon plaintiff’s street railway in the cities of Waterloo and Cedar Falls. A demurrer to the petition was sustained, and plaintiff appeals.—

— Hon. W. B. Quarton, Judge. The plaintiff and his family were quarantined thirty days by the local board of health of one of the townships in Dickinson county because of a supposed case of smallpox in the family. There was in fact no contagious disease in the family, and the plaintiff brings this suit to recover of the county, and of the individual members of the local board of health of the township, damages which he alleges he has sufferred on account of the quarantine.

,— Hon. A. H. McVey, Judge. Suit to recover the price of a car load of fruit. Trial to a jury, and a verdict and judgment for the plaintiffs. Tbe defendants appeal.— Reversed.

— Hon.'Hugh Brennan, Judge. The plaintiff was assessed for taxation in the city of Des Moines, Iowa, for the year 1903 upon moneys and credits in the sum of $12,482. The board of review having refused to vacate or reduce the assessment, plaintiff appealed to the district court, where a decree was entered sustaining the plaintiff’s objections and canceling the assessment. The defendant appeals.—

<p>Mechanic’s lien: sub-contractors : liability of owner. The owner of a building in process of construction who has agreed with the contractor to pay for the materials and labor to the parties entitled thereto on presentation of itemized statements therefor, and who by his conduct places himself under obligation to materialmen, becomes personally liable to them for material used in the building an'd they may have and enforce a lien against the building for the reasonable value of the material furnished.</p> <p>Evidence reviewed and held to show a personal liability of the owner.</p>

<p>Appeal from Warren District Gourt.— Hon. J. D. Gamble, Judge.</p> <p>The opinion states the case.—</p>

— Hon. Obed Oaswell, Judge. Action to recover one-fourth the value of certain property received by defendants in virtue of a contract between the parties, whereby defendants agreed to give plaintiff an one-fourth interest in the estates of John and Jane Galt. Defendants pleaded a former adjudication, and breach of a condition precedent to the performance of their obligations under the contract. They also pleaded failure of consideration for the contract.

— Hon. A. S. Blair, Judge. Action to restrain the defendant, as county treasurer, from enforcing as against plaintiff’s real property a certain school tax duly certified to the auditor of Black Hawk county in 1901 and properly levied by the board of supervisors of that county upon the property subject to taxation within the limits of the independent school district of East Waterloo City; the contention of plaintiff being’ that his property was not within the limits of said…

Original proceedings by certiorari to review tbe action of the defendant judge, whereby William Oahill, named as a defendant in the caption above, was adjudged guilty of a contempt. To avoid confusion, it may be here stated that the contempt proceedings arose in connection with an action of quo warranto entitled as in the caption above.

<p>Liquidated damages: enforcement. A provision for liquidated damages in a contract understanding^ entered into will be enforced in equity, unless it is so “ unconscionable as to warrant a presumption of fraud, imposture or undue influence.”</p>

Certiorari proceedings to review the action of the defendant, granting temporary injunctions in liquor nuisance cases.;—

— Hon. O. D. Wheeler, Judge. Action to recover the value of a trunk and its contents, belonging to plaintiff, transported by defendant as a common carrier of passengers, as baggage, from the town of New Conception, in Missouri, to Shenandoah, in Iowa, and there destroyed by accidental fire.

— Hon. M. O. Matthews, Judge. This action was originally brought by plaintiff against defendant Muekel to recover possession of a promissory note for $2,500 alleged to have been executed by the intervener, plaintiff’s husbañd, to plaintiff, and wrongfully detained by defendant.

<p>Evidence: writings : variance by parol. Where there is no question made by the pleadings that a written contract sued upon did not fully embody the agreement and the contract has been performed by one of the parties,' oral evidence in support of a counterclaim for damages, because the performance was not in conformity with a contemporaneous verbal agreement, is inadmissible.</p>

— Hon. J. B. Whitaker, Judge. Action upon four promissory notes' executed by Salinger & Brigbam to plaintiff, which it is claimed H. C. Mc-Allister agreed to pay or to become surety upon. Salinger & Brigham made no defense; but McAllister while alive, and his representative after his death, among other things denied any promise on his part to pay the notes or to become surety thereon.

— Hon. A. J. House, Judge. The appellant is the county treasurer of Jackson county, and the appellees are the executors of the estate of W. P. Clark, late of said county, deceased. On April 15, 1904, said treasurer caused notice to be served upon said executors to the effect that during his lifetime, and for the years 1899, 1900, 1901, and 1902, said W. P. Clark had withheld from assessment certain moneys and credits, and fixing April 25th as the day for hearing.

— Hon. L. E. Fellows, Judge. The parties hereto were opposing candidates for the office of auditor in and for Chickasaw County at the General election of 1904. Lentz was declared elected hy the board of supervisors acting as canvassing board. Thereupon Murphy filed a statement of contest and upon trial before the court of contest was declared elected. Lentz then appealed to the district court where that decision was affirmed. He appeals.—

<p>Negligence: trespassers: instructions. Where plaintiff was in-1 jured by a blast of steam from the blow-off pipe at the rear of plaintiff’s power house the evidence is held not to require a submission of the issue as to whether plaintiff was a trespasser at the time of the accident; especially as the court told the jury that defendant could not wantonly disregard the safety of persons it had reason to believe might be in danger from such act.</p> <p>Same: wantonness. It is not necessary to constitute a wanton 2 indifference for the safety of those who might reasonably be anticipated to come into a place of danger that there be an intention to do an injury.</p> <p>Same. It is not necessary to constitute a wanton disregard for 3 others, that one should know of the presence of the particular person injured by coming in contact with a dangerous appliance maintained by him.</p> <p>Same: contributory negligence. The fact that plaintiff might 4 reasonably be expected to know of the existence of a blow-off pipe would not charge him with knowledge that it might be used in such manner as to imperil his safety, and the question of his contributory negligence in approaching the same was therefore properly submitted to the jury.</p>

<p>Appeal from Appanoose District Court.— Hon. M. A. Roberts, Judge.</p> <p>The opinion states the ease.—</p>

— Hon. Clifford P. Smith, Judge. Action in equity by plaintiff to quiet title to certain real estate as against the defendants. Adaline A. Shepherd intervened, claiming to be the owner of an undivided one-half interest in the property, and asking that her title be established and quieted as against both plaintiff and defendants. The defendants answered the petition of plaintiff, but plaintiff only pleaded in answer to the petition of intervention.

— Hon. A. B. Thornell, Judge. The plaintiff shipped a car load of goods, farming utensils and stock over the defendant’s road from Salisbury, Mo., to Shenandoah, Iowa. • It was what is known as an. “ emigrant car,” the agreed charge for which between said points was $39.

—Hon. A. B. Thornell, Judge. Action to recover possession of two horses held by defendant Voorhees under a chattel mortgage given by plaintiff to said defendant to secure payment of “one note for $42.94, dated December 26, 1896, due September 1, 1897, and one note for $100.00' dated December 30, 1896, due December 30, 1897, together with any further advances made or indebtedness owing by said mortgagor to said mortgagee including all renewals thereof until this mortgage is…

— Hon. J. H. Roti-irock, Judge. Action for damages resulted in a directed verdict for the defendant, upon which judgment was entered. The plaintiff appeals.—

— Hon. J. H. Preston, J udge. Suit by a passenger to recover damages for an assault alleged to bave been committed by one of tbe defendant’s trainmen. Trial to a jury and verdict and judgment for the plaintiff. The defendant' appeals.

- — Hon. Henry Bank, Jr., Judge.. Action to recover damages for breach of the terms of an indenture of apprenticeship. The written indenture bears date September 1, 1899/ and is signed by' plaintiff, his parents, and on behalf of the defendant corporation. At the time thereof plaintiff was a minor, his nineteenth birthday having occurred in the month of March previous.

<p>'Appeal from Crawford District Court.— Hon. Z. A. Church, 'Judge.</p> <p>Action to quiet title. Decree for plaintiff. Defendants appeal.—</p>

— Hon. G. W. Wakefield, Judge. Action to recover a balance due on a promissory note. There was judgment on default as against the defendant O. W. Wheeler. The defendant Martha A. Wheeler answered, and she appeals from a judgment on verdict as against her in favor of plaintiffs.

— Hon. L. E. Fellows, Judge. Suit in equity for the specific performance of a contract to loan money. Interveners came into the case claiming an interest in the property upon which a mortgage Was to be executed, and plaintiff then asked to have his title quieted against them. There was a decree for defendants, and plaintiff appeals.

W. E. Miller, Judge. Suit for the surrender and cancellation of a certain bond and mortgage. The petition was dismissed, and plaintiff appeals.—

<p>Insurance against loss by burglary: statutes construed. The pro-1 vision of Section 1695 of McClain’s Code, authorizing domestic insurance companies to insure houses, buildings and all other kinds of property against loss or damage by fire or “ other casualty,” is' construed to authorize insurance against loss by burglary.</p> <p>Construction of statutes. Where the language of a statute is so 2 indefinite as to call for 'construction the interpretation placed thereon by the executive and administrative departments of the state, charged with the duty of applying and enforcing it, will be given much weight by the courts.</p> <p>Insurance corporations: ultra vires. Where an insurance com-3 pany has been duly organized and authorized by the state to transact a particular line of business, an assured, in an action upon a premium note, cannot defend on the ground that its act in writing the policy in consideration for which the note was given was ultra vires.</p>

<p>Eminent domain: adjudication. Where three appeals in condem1 nation proceedings were consolidated for the purpose of trial, in one of which the sheriff’s jury returned no award of damages and plaintiff elected to accept the award in the other two cases, and defendant after the sustaining of demurrers to its answers in the other two cases elected to rely on the answers, judgments confirming the two rewards did not constitute an adjudication of damages in the case in which no award was made.</p> <p>Condemnation: pleadings. In condemnation proceedings formal 2 pleadings are not required, but when adopted the ordinary rules of pleading apply, and no affirmative defense not pleaded can be relied upon. •</p> <p>Estoppel: evidence. In a proceeding to assess the damages to 3 land over which a right of way had been appropriated, the evidence is held insufficient to establish a prior settlement and payment operating as an estoppel in pais so as to bar the proceeding.</p>

<p>Information: amendment. Where there is no uncertainty as to 1 the nature of an offense charged in an information, it may, in the discretion of the court, be amended so as to charge the commission of the crime anywhere within the jurisdiction of the court, instead of within a particular subdivision.</p> <p>Carrying concealed weapons: admissions: confessions: corpus 2 delicti. The admission of defendant in a justice court that he carried a concealed weapon as charged in the information, when proven on appeal to the district court does not amount to a confession of guilt, and unaided by other evidence of the corpus delicti will not support a conviction; and this is especially true where defendant in the same connection insisted on his right so to do under a commission from a magistrate directing him to make an arrest.</p>

<p>Appeal from District Harrison.— IIon. O. D. Wheeler, Judge.</p> <p>The opinion states the case. From a judgment in favor, of intervener, the plaintiff appeals.—</p>

— Hon. Clifford P. Smith, Judge. Action to set aside the conveyance of three hundred acres of land and also certain property located at Mason City, Iowa. The plaintiffs’ petition was dismissed, and they appeal.—

— Hon. W. R. Green, Judge. The evidence indicated that the defendant and several others were in Steffen’s saloon; that he and Foley were jollying each other, when the latter playfully threw his arms around defendant’s neck and offered to kiss him, and accidentally knocked his hat off; that defendant remarked that he “ was no d-n fool,” and, as Foley was about to apologize, called for drinks, and struck at Foley twice, missing him about four feet.

<p>Appeal from Scott District Court.— Hon. James W. Bollinger, Judge.</p> <p>The opinion states the facts.</p>

<p>False representations as to values: submission of issues. The ■ 1 statements of a vendor as to the value of the land made on a professed knowledge of the facts and to a vendee known to be ignorant on the subject, when coupled with any artifice intended to deceive, may amount to more than a mere expression of opinion and give rise to an action for fraud; and if the evidence justifies a reasonable difference of opinion on the question of fraud the issue should be submitted to the jury.</p> <p>Same: duty to investigate. It is only where the means of knowl2 edge as to the value of land is equally open to both parties that a vendee may not rely on the statements of the vendor.</p>

<p>Surface water: «drainage: removal of obstructions: burden of 1 proof. One may protect his land from surface water diverted upon it by artificial means, and one seeking to remove an embankment constructed for that purpose, on the ground that it obstructs the natural flow over plaintiff’s land, has the burden of showing that his is the dominant estate and that, unobstructed, the surface water naturally flows from his land over that of the adjacent owner. Evidence held insufficient to sustain this burden.</p> <p>Embankment: right to maintain: limitation. Where an em-2 bankment for the purpose of preventing the flow of surface . water over one’s land has been maintained without objection for a period of thirty years, equity will not require its removal at the suit of the adjacent owner, or restrain its repair and maintenance at the original height.</p>

— Hon. Byron W. Preston,. Judge. This is a proceeding in probate for the allowance of a claim against tbe estate of George D. Wood, deceased. Defendant answered by a general denial. The trial court allowed the claim in full, and defendant appeals.—

— Hon! B. W. Preston, Judge. Suit for ail accounting. There was a finding and judgment in favor of the plaintiff. The defendant appeals.—

— Hon. J. H. Richard, Judge. Action for value of note and mortgage alleged to have been deposited with defendant for safe-keeping. From judgment as prayed tbe defendant appeals.—

— Hon. F. W. Eiohelberger and M. A. Roberts, Judges. Suit in equity to enjoin the defendant city, its officers and agents, from paying certain bonds or the interest coupons therein, or from appropriating any money for the payment thereof.

<p>Certiorari. The action of an inferior tribunal will not be annulled 1 in a certiorari proceeding unless it is shown that such action was prejudicial; and in determining this question the Supreme Court is not limited to the petition and answer, but it will resort ■ to the facts as they appear in the record.</p> <p>Gambling: punishment by ordinance. Where the power to pun-2 ish an act made criminal by statute has been conferred upon a city a valid city ordinance to that end may be enacted.</p>

— Hon. James A. Howe, Judge. Action to recover $10,260 and interest on .a promissory-note signed by John Cooper, A. H. McYey, R. J. McKee, and Geo. A. Jewett, defendants.

<p>Streets: overhead obstructions: nuisance: liability of city. The I public right in a street extends to its full width and indefinitely upward so that an overhead structure of a character dangerous to a person rightfully using the street is a nuisance and the municipality is liable for injuries resulting therefrom.</p> <p>Same; The right to interrupt the public use of a street must rest 3upon some public convenience or necessity, or in the reasonable enjoyment of the use of adjacent property.</p> <p>Same. Municipalities are clothed with statutory power to regulate 3 and control the use of streets and all public grounds, and it is made their duty to keep them free from nuisances, for a violation of which duty an individual suffering injury therefrom may recover damages.</p> <p>Same: negligence of city. A city permitting the erection of a 4 street obstruction, having no relation to the use for which.a public way is designed, is chargeable with notice of the nuisance and in legal effect is the creator thereof the same as though the obstruction was of its own making.</p> <p>Proximate cause. Where the evidence is not clear or undisputed on 5 the question of the proximate cause of an injury it becomes an issue of fact for the jury.</p> <p>Same. Where a city permitted the erection of a nuisance consist-6 ing in stringing a wire from the roof of a building to a post near the ground at the opposite side of the street, down which a performer was to slide, and in making the slide the fastenings or harness holding the performer to the wire broke and she fell injuring one lawfully upon the street, the breaking of the harness was a concurrent and not an independent cause of the injury.</p> <p>Contributory negligence. The question of contributory negligence 7 is ordinarily for the jury.</p>

— Hon. O. A. Bayington, Judge. Action brought1 for the construction of certain provisions in the last will and testament of James B. Strang, deceased. Erom the' decree rendered by the district court, the plaintiffs appeal.—

— Hon. William Hutchinson, Judge. Action for damages caused by the sale of diseased hogs. Trial to a jury. Verdict and judgment for defendants, and plaintiff appeals.—

— Hon. E. W. Eichelberger, Judge. The defendant appeals from a conviction for larceny committed by the stealing of a horse of the value of $125.—

<p>Appeal from Linn District Court.— Hon. J. H. Preston, Judge.</p> <p>Suit in equity to enjoin the county treasurer from enforcing an assessment of property made under section 1371 of the Code. There was a judgment for the plaintiff on demurrer to an amendment to the- petition and to the answer to the original petition. The defendants appeal.—</p>

— Hon. O. A. Byington, Judge. Suit at law to recover damages alleged to have been caused by the defendant’s dogs. Trial to a jury, and a verdict and judgment for the defendant. The plaintiff appeals.-—

<p>Appeal from Monroe District Court.— Hon. C. W. Vermillion, Judge.</p>

<p>Conspiracy: indictment. An indictment for conspiracy must 1 show that either the purpose of the conspiracy or the means employed to accomplish the purpose were criminal.</p> <p>Same. False pretenses with reference to real estate are not an 2 offense under Code, Section 5041, and an indictment charging a conspiracy for the purpose of acquiring real property is defective in failing to allege the means .employed to accomplish the purpose.</p>

— Hón. Henry Bank, Jr., J udge. Action to recover damages caused to the estate of William Connell, deceased, by reason of his death, alleged to have been due to his coming in contact with a wire, which was being used and maintained by the defendant for the transmission of electricity for power and lighting purposes, charged with a very high and dangerous voltage, and negligently allowed by defendant to be without insulation at the place where the accident occurred, and to…

— Hon. Henry Bank, Jr., Judge. Suit in equity to quiet plaintiffs title to an outlot in section 1, township 68, range 3, in Lee county, Iowa. Plaintiff claims title under a tax deed and by adverse possession. Defendant denies plaintiff’s title, and claims ownership in virtue of a warranty deed from One • Sourwine.

Appeals from Dallas District Court.— Hon. Edmund Nichols, Judge. In each of the above-entitled cases the defendant was indicted on the charge that while holding the office of township trustee he unlawfully entered into a contract to furnish, and did furnish, to the road superintendent for the use of the township, men and teams to perform labor upon the public roads, and upon such unlawful contracts did collect and receive certain sums of money from the funds of said township.

— Hon. William Hutoi-iinson, Judge. The case was submitted upon an agreed statement. It involves the liability of defendant for intoxicating liquor sold and delivered to him by plaintiff. The trial court found for defendant, and plaintiff appeals.—

<p>Appeal from Monona District Court.— Hon. Wm. Hutchinson, Judge.</p> <p>Ti-ie defendant having been convicted of larceny, appeals.- —</p>

— IIon. James W. Bollinger, Judge. Action to specifically enforce as against defendants, who are the heirs of Mrs. L. M. Knight, deceased, an agreement made between Mrs. Knight and her husband, also deceased, by which she agreed to will, devise, and bequeath to the plaintiff all the property, real and personal, belonging to her at the time of her death, and to quiet the title of plaintiff as against said heirs to certain described real estate and personal property.

— Hon. J, L. Kennedy, Judge. Judgments were entered against Oliver Perry in favor of E. J. Norcross for $1Y0.33 and costs, January 30, 1892; of Mason Fowler Grocery Company for $85.30 and costs, May 5, 1892; of Ayers, Weatherwax, Peed & Co. for $282.08 and costs, May 5, 1892; of C. Shenkberg for $154.90 and costs, January 15, 189Y. The judgments were assigned to plaintiff, who also recovered a judgment against the same defendant for $303.85 and costs, January 15, 1901.

— Hon. James D. Smyth, Judge. Suit in equity to enjoin the defendant from using certain land for cemetery purposes. Judgment for the plaintiffs, from which the defendant appeals.—

<p>Peddlers: taxation. A traveling solicitor taking orders for goods 1 from samples, which orders are" to b.e sent his employer and if approved, filed and forwarded to the solicitor for delivery, collection and remittance of the purchase price, is not a peddler within the meaning of Section 1347, Code Supplement, relating to peddlers and the tax to be paid by them.</p> <p>Legislative enactment: amendment: title- Matter not germane 2 to an existing statute which is added thereto by way of amend- . ment must be expressed in the title of the amendatory act.</p>

— Hon. J. L. Kennedy, Judge. Action for damages occasioned by delay in transmitting a telegram. Verdict was directed for defendant, and the petition dismissed. Plaintiff appeals.—

— Hon. W. S. With-row, Judge. Appeal by defendant from the action of the lower court in refusing to sustain his motion to dismiss the prosecution, on'the ground that he had not been brought to trial at the next regular term of the court in which the indictment was triable, after the same was found, as required by Code, section 5536.—

— Hon. M. A. Roberts, Judge. Upon defendant’s motion, a sheriff’s jury was selected to assess plaintiff’s damages by reason of condemning a right of way for railway purposes through his land. On April 16, 1902, this jury awarded plaintiff the sum of $300, and from this award he appealed to the district court.

<p>Appeal from, Dallas District Court.— Hon. James D. Gamble, Judge.</p> <p>Action at law to recover a sum alleged to be due on a written contract for the sale of a stock of goods. There was a verdict and judgment for the plaintiff, and defendant appeals.—</p>

<p>Appeal from Sioux District Court.— Hon. Wm. Hutchinson, Judge.</p>

Appeal ■from Mahaska District Court.— How. W. Gr. Clements, Judge. Suit in equity to enjoin the sale of real estate to satisfy a judgment against a third party. Judgment for the defendants, from which the plaintiff appeals.—

— IIon. H. K. Evans, ' Judge. Action to recover a sum of money received by defendant as the proceeds of certain hogs shipped from Shepard in Union county, this state, to St. Joseph, Mo. It is claimed that the hogs belonged, to plaintiff, and that by mistake they were shipped in the name of one J. K. Webb, ánd that when the bank received the proceeds of the shipment it wrongly applied it upon a debt owing it by said Webb.

District Court.— Hon. Frank W. Eichelberger, Judge. Action to recover damages for personal injuries alleged have been sustained by plaintiff by reason of the negligence of- defendant’s employes. At the conclusion of the evidence the court .sustained a motion to direct a verdict for the defendant, and from the judgment on such directed verdict the plaintiff appeals.—

— Hon. E. W. Eichelberger, Tudge. Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. H. M. Towner, Judge. Suit in equity to set aside and cancel a deed on account of the mental incapacity of the grantor, the plaintiff’s ward. There was a judgment dismissing the plaintiff’s action, and quieting the title in the defendant. The plaintiff appeals.—

— Hon. B. W. Preston, Judge. Controversy over boundary line resulted in a decree against defendants as prayed, and from it they appeal.—

<p>Animals: injuries by dogs : liability as owner. A married woman permitting the dogs of her husband to remain on the home premises, the legal title of which is in her, will not render herself liable as owner of the dogs for injuries caused by. them to one driving along the public highway.</p>

<p>Appeal from Johnson District Gourt.— Hon. O. A. Byington, Judge.</p> <p>The opinion, states the case. — ■</p>

— Hon. Jambs Howe, Judge. Action at law to recover damages for tbe death of the plaintiff’s intestate. There was a verdict and judgment for plaintiff, and the defendant .appeals. —

— Hon. N. W. Eichelberger, Judge. Action to recover damages for a personal injury resulting in the death of plaintiff’s intestate, Roy Graham. Graham was a young man nearly twenty-one years of age, and his home was in the city of Ottumwa, this state. The áccident in which he lost his life occurred September 17, 1901, and in the city of Chicago, 111.