Volume 132 — Iowa Reports

<p>Appeal from, Lyon, District Court.— Hon. Wm. Hutchinson, Judge.</p> <p>Action on contract. Judgment as prayed. Defendants appeal.</p>

— Hon. Wm. Hutchinson, Judge. Action at law upon two promissory notes given by defendants to one G. W. Chapman, now deceased. Trial to the Court, judgment for plaintiff, and defendants appeal.

— Hon. M. A. Roberts, Judge. Action in equity for an injunction to restrain the further violation of the terms of a written contract, and to recover damages already accrued, growing out of the violation of such contract. On trial the petition was dismissed, and plaintiff appeals.

<p>1 Appeal: affirmance. Where, on appeal, the Supreme Court is equally divided the decision of the lower court is affirmed by operation of law.</p> <p>2 Trespass by railway company: rights of action. A former owner of land has a right of action for a trespass committed while he owned the land; and where the trespass consists in the occupancy for railway purposes, which is continued until. the title has passed to another, such grantee may sue for possession, enjoin the use or institute condemnation proceedings.</p> <p>3 Eminent domain: recovery of interest. One purchasing land at the time occupied by a railway company without legal right can only recover interest, in a suit for the value thereof, from the time he acquired the title.</p> <p>4 Railroads: right of way: acquisition. A right of way is an easement which can only be acquired by purchase from the owner, prescription or condemnation; and where a railway company was occupying land as a trespasser at the time of its conveyance, an exception in the deed-of all rights of way located over the land, created no right in the railway company to the land then in process of condemnation.</p> <p>5 Eminent domain: assignment of damages. Where a vendor had not elected to treat a railway company as desiring a right of way over the land at the time of his conveyance, he cannot assign any damages arising from its subsequent appropriation.</p> <p>6 Attorney’s fees. Attorney’s fees are taxable in an action to recover the value of a right of way.</p>

<p>Appeal from Muscatine District Court. — Hon. D. Y. Jackson, Judge.</p> <p>Action to recover damages upon an injunction bond. Judgment for defendants, and plaintiff appeals.</p>

— Hon. John T. Scott, Judge. Action in equity to wind up the affairs of a partnership. A receiver was appointed, and a claim on behalf of Black Oak township in Mahaska county against the partnership was filed with such receiver. . Upon hearing before the court, the claim was disallowed, and the claimant appeals.

<p>Appeal from Johnson District Court.— Hon. O. A. Byington, Judge.</p> <p>Suit on a stock subscription. Judgment for plaintiff, from which the defendant appeals.</p>

<p>Appeal from Shelby District Court.— Hon. O. D. Wi-ieeler, Judge.</p> <p>Action to recover damages for a personal injury. There was a directed verdict and judgment for costs in favor of defendant, and plaintiff appeals.</p>

<p>Wills: construction: estate devised. In construing’ a will the intent of the testator will be given effect if not violative of some established rule of law. In the instant case the will is held to have given the widow, in lieu of her distributive share, a specific sum of money and in addition the life use of the residue of the estate with the remainder over to testator’s legal heirs.</p>

This is a proceeding by certiorari to annul that portion of an order entered by the defendant as judge of the Thirteenth judicial district holding the district court in and for Winneshiek county, granting a temporary injunction at the suit of one H. O. Hjerleid, plaintiff, in an action brought in equity against Winneshiek county, the board of supervisors, and the auditor of said county, and the United States Standard Voting Machine Company, as defendants, by which the…

From Buchanan District Gourt.— IIon. A. S. Blair, Judge. Suit in equity to restrain the defendant from selling intoxicating liquors in the building and on the premises described in-the petition. Judgment for the defendant, from which the plaintiff appeals.

— Hon. A. H. McVey, 1 Judge. Dependant was indicted, tried, and convicted of the crime of cheating by false pretenses, and from the judgment imposed appeals.— Affirmed.

<p>Appeal from Winnebago District Court.— IIon. Ceiffoed P. Smith, Judge. ,</p> <p>Suit at law on insurance policies. The six cases were consolidated and tried as one in the district court. Prom a verdict and judgment in favor of the plaintiffs, all of the defendants appeal.</p>

— Hon. Olieford P. Smith, Judge. Action ou certificate of membership iu the defendant association resulted in a verdict and judgment for the plaintiff. The defendant appeals.— Affirmed.

<p>Mortgages: absolute conveyance: ' evidence. A deed absolute in form is presumed to convey the fee and cannot be established as a mortgage except upon reasonably clear and satisfactory proof. Evidence held insufficient to justify a finding that the conveyance was intended as a mortgage.</p>

— Hon. Clieeord P. Smith, Judge. This is a boundary line case. There was a judgment for the plaintiffs, from which the defendants appeal.—

<p>Appeal from Polls District Court. — Hon Hugh Brennan, Judge.</p> <p>The opinion states the case. From a decree in favor of plaintiff, the defendant appeals.—</p>

— Hon. Hugh Brennan, Judge. The petition alleged the sale of lots 35 and 36 in Drake University’s addition to Des Moines to defendant for the sum of $2,560, of which $1,100 in money and security had been paid, and that plaintiff “ was to receive the remainder in buggies and carriages to the value of $1,460.” In paragraph 3 it was further alleged: “ That the said V. M. Hyde, represented to this plaintiff that the said buggies and carriages were in the Merchants’ Transfer…

<p>Actions: removal to proper county: costs. Code, Section 3504, contemplates that a defendant sued in the wrong county shall recover only for his trouble and expense in moving for a change to the proper county, and not all his personal expenses, time occupied and attorney’s fees in defending the case in the trial court and on appeal; and the allowance is largely discretionary with the court which will not be disturbed on appeal unless an abuse of such discretion is shown.</p>

<p>Appeal from Linn District Court.— Hons. Wm. G. TiiomP’ son and B. H. Miller, Judges.</p> <p>Action to recover the purchase price of a monument.</p> <p>Defense, a general denial. Verdict for defendant, and plaintiff appeals.. Defendant also appeals from a ruling upon a motion to correct the record in the court below. Plaintiff will be called “ appellant.” Reversed on defendant’s appeal.</p>

<p>Appeal from Marshall District Court.— Hon. Obed Caswell, Judge.</p> <p>Action to set aside a conveyance as fraudulent. Decreed as prayed. Tbe defendant Teresa Kurtz appeals.</p>

<p>Appeal from Johnson District Court.— Hon. O. A. Byington, Judge.</p> <p>Action to recover commission on sale of land. Judgment was entered as prayed. The defendant appeals.</p>

— FIon. Wm. Hutchinson, Judge. The administrator of the estate of Andrew Lindsay, deceased, filed his application in the district court to have James F. Mase, the guardian of said Andrew Lindsay, who had been adjudged of unsound mind some time prior to his decease,-make and file a full and complete report of his doings as such guardian, and a statement and account of all money or property of hi's ward' coming into his hands as such guardian.

<p>Appeal from Wapello District Oourt.— IIon. M. A. Roberts, Judge.</p> <p>The opinion states tbe facts.</p>

<p>Conveyances: exceptions: abandonment of right of way: re- * version. The grantee in a deed, which expressly excepts from the general description a definite right of way theretofore conveyed to another, does not acquire a reversionary interest in the right of way; but upon its abandonment the same reverts to his grantor, under a condition in the right of way deed that it shall so revert, notwithstanding the provision of Code Section 2015 relating to abandonment and reversion of rights of way. Weaver and McClain, J. J., dissenting.</p>

— Hon. Erank R. Gaynor, Judge. In tbe probate court, in which the will of Thomas.

— Hon. John H. Soott, Judge. Action to recover part of tbe purchase price of a cow sold by defendant to plaintiff, upon a claim that the sale was rescinded for breach of warranty. Damages are also asked for expenses incurred in feeding the animal. Many defenses were pleaded, to some of which we shall hereinafter refer. There was a directed verdict for defendant, and plaintiff appeals.

<p>1 Injunctions: dissolution. A temporary writ of injunction may be dissolved upon motion, supported by affidavits disclosing defensive matter, before the filing of an answer to the petition.</p> <p>2 Same. The granting arid dissolution of a temporary injunction is largely discretionary and will not be reversed unless a clear case of prejudicial error is disclosed.</p> <p>3 Contracts of employment: breach: specific performance:' injunction. Equity will not specifically enforce a contract for personal services; nor can an employer restrain a servant who has left his employ prior to the expiration of his contract from engaging in the service of another unless there is a plain negative covenant in the contract of employment, and then only when the service is of such special and unusual character that the loss cannot be adequately compensated in damages.</p> <p>4 Specific performances. It is generally held that specific performance will not be decreed in favor of one party where similar relief could not be granted against the other party for his refusal to perform.</p> <p>5 Contracts of employment: breach: special qualification: pleading. A petition alleging in substance a high degree of proficiency in the sale of goods does not show such special or extraordinary service as to justify an injunction restraining an employé, who has broken a contract of employment, from engaging in the service of another.</p> <p>6 Injunction: financial irresponsibility. The mere fact that a servant, who has broken his contract of employment, is not financially responsible will not support an injunction restraining him from engaging in the service of another.</p> <p>7 Trade secrets: skill: injunction. With the exception of valuable trade secrets acquired while in a given service, an employ é may use the skill and knowledge there gained in the service of a rival, though wrongfully leaving the original employment.</p>

<p>Appeal from, Cerro Gordo District Court.— Hon. Clifford P. Smith, Judge.</p> <p>Action at law to recover upon two fire insurance policies issued by defendant to plaintiff. One of the policies covered the store building, furniture, and fixtures of plaintiff situated in Pock Palls, Cerro Gordo county, and the other the stock of merchandise contained in such store building. By the special findings and verdict, a recovery was awarded to plaintiff on both policies. A motion for new trial having been made and submitted, tbe verdict was set aside as to tbe amount awarded on the merchandise policy, and a new trial granted. The motion was overruled as to the amounts awarded on the building, furniture,' and fixture policy, and judgment was entered accordingly. Therefrom the defendant appeals. ></p>

<p>Appeal from Muscatine District Court. — 'Hon. Jas. Bollinger, Judge.</p> <p>Appeal from a judgment of dismissal.</p>

<p>Appeal from Hardin District Court.— Hon. J. B. Whitaker., Judge.</p> <p>Defendant was indicted and convicted for maintaining a liquor nuisance, and appeals.</p>

<p>Appeal from Johnson District Qourt.— Hon. O. A. Byington, Judge.</p> <p>Decree of divorce was granted as prayed. The defendant appealed.</p>

<p>Appeal from, Jachson District Court.— Hon. A. P. Barker, Judge.</p> <p>Defendant was indicted, tried and convicted of the crime of sednction, and from the judgment imposed, he appeals.</p>

— > Hon. Olieeord O. Smith, Judge. This is a petition for a new trial of that part of a divorce proceeding fixing alimony awarded to plaintiff in an action, brought by defendant against the plaintiff, which resulted-in a decree of divorce for defendant in that action with an award of alimony upon her cross-petition filed in that case. The trial court granted a new trial, but refused, in this proceeding, to modify that part of the original decree relating to alimony.

— IIon. C. II. Keíley, Judge. Aetiou to recover damages for slander. There were 'several counts in plaintiff’s petition, but the issues as to all but two of them were withdrawn from the jury, and the damages allowed as to one of these were remitted by plaintiff. Defendant appeals from judgment rendered against him on the verdict in plaintiff’s favor under the issues raised on the remaining count of the petition.

<p>1 Garnishment: examination of garnishee: judgment. Upon the failure of a garnishee to appear and submit to an examination, where his answers have not been taken by the sheriff at the direction of the plaintiff, judgment may be entered against him even though he has filed an answer to thé petition.</p> <p>2 Same: diversion of funds. Where the funds of a debtor have by agreement been left with a garnishee for a specific purpose, the garnishee has no right to divert the same to the satisfaction of his individual claims.</p>

— -Hon. A. S. Blair, Judge. Suit in equity to enjoin a liquor nuisance. The trial court granted a decree, as asked, but refused to tax an attorney’s fee for plaintiff’s attorney. Plaintiff appeals.

Appeals from Mitchell District Court.— Hon. J. E. Clyde, Judge. These, are appeals from proceedings in probate; the first being an appeal by Lund, administrator, from an order of court, rejecting certain claims made by him for expenses incurred in administering the estate of Sam Ring, deceased; and the second, an appeal by Lund who, in his individual capacity, filed a claim against the estate of said Ring. This claim was disallowed by the trial court.—

— Hon. J. H. Richard, Judge. Ti-ie indictment charged that the accused did willfully and unlawfully practice medicine, and then and there did publicly profess to cure, and heal the diseases and ailments to which the flesh is heir by means of a certain system, a more particular description of the peculiar and mysterious workings of which are to this grand jury unknown; that said J. C. Wilhite then and there did advertise in.the Ft.

<p>Appeal from Monona District Court. — Hon. John P. Oliver, Judge.</p> <p>Plaintiee is the husband of Audrine Hannestad. It is his allegation that said Audrine was injured through negligence of defendant, and this action is brought by him to recover for the loss of her services. There was a jury trial, resulting in a verdict and judgment for defendant Plaintiff appeals.</p>

<p>Nuisance: contributory wrong of plaintiff. The doctrine of con-1 tributory negligence is not applicable to an action to recover for a nuisance, but in such cases each party is chargeable with the consequences of his own conduct.</p> <p>Same: instruction: apportionment of damages. An instruction 2 in an action for nuisance, that plaintiff could not recover if he contributed in any material degree to the nuisance, while not the law, is held to have been without prejudice to the defendant, since the'finding for plaintiff under the instruction was equivalent to a finding that he did riot contribute to the injury; and there was no occasion -for apportioning the damages.</p>

— -Hon. Wk. Hutchinson, Judge. Action at law to recover damages arising as alleged out of the negligent failure of defendant, a physician and surgeon, to properly treat an accidental fracture of the bone of plaintiff’s arm. From a verdict and judgment in favor of plaintiff, the defendant appeals.

— IIon. Jas. A. Howe, Judge. Suit to recover money alleged to have been paid by mistake. ’ Trial to the court and a judgment for the plaintiff. The defendant W. A. Scruby appeals.

— Hon. J. E. Whitaker, Judge. Suit to recover a commission 'for the sale of real estate. There was a directed verdict for the defendant from which the plaintiff appeals.

<p>Appeal from Hardin District Court.— Hon. W. D. Evans, Judge.-</p> <p>Suit for specific performance. Decree was entered as prayed. The defendants appeal.</p>

— Hons. George W. Wakeeield and J. L. Kennedy, Judges. Action to recover upon a judgment rendered for costs by the Circuit Court of the United States for the District of Nebraska. Prom judgment for defendant upon a directed verdict, the plaintiff appeals.

— Hon. James A. Howe, Judge. Action at law to recover damages for breach of a contract of employment. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— Hon. Hugh Brennan, Judge. Action in equity by plaintiff, a stockholder, for recission and to wind up the affairs of the defendant Midland Investment Company, a corporation. , The remaining stockholders, J. A. Dyer, J. H. Campbell, E. K. Maine, and J. B. Lucas, are named as defendants. .Lucas did not appear, but it does not seem that there was any demand for, or entry of, default as against him. Each of the other defendants appeared and answered.

— IIon. Wm. H. McHenry, Judge. Plaintiee supplied B. F. Garmer materials witli which to erect a dwelling house for Mrs. W. B. Bastían, and in this action prays judgment therefor against Garmer, and for the establishment of a mechanic’s lien on the property. Judgment was entered against Garmer, but other relief was denied. The plaintiff appeals.

— IIon. J. II. Richard, Judge. Action for libel. Defense, justification, privilege, and a pleading of facts in mitigation. Trial to a jury. Verdict and judgment for defendant, and plaintiff appeals.

<p>Appeal from Mitchell District Court.— Hofr. J. IT. Clyde, Judge.</p> <p>The defendant was convicted of tbe crime of incest, and appeals. — ■</p>

<p>1 Divorce: inhuman treatment: evidence. Evidence that defendant frequently kicked his wife, assaulted her in a violent manner with deadly weapons, threatened to maim her and to take her life and habitually called her vile names, all of which was done in the presence of children who had arrived at years, of understanding, will support a decree of divorce on the ground of cruel and inhuman treatment.</p> <p>2 Same: alimony. A judgment for alimony which has the effect to confirm in the wife title to land which she in fact owned, and requiring defendant to pay all debts upon which the wife might be liable, is held, under the proven circumstances, one of which the husband cannot complain.</p>

<p>1 Religious societies: acquisition and use of property: corporate power. A religious society organized under Chapter 2,1 Title 9 of the Code, seeking to effectuate its ideals of religious life through the common ownership and management of the property of its members, may so acquire and hold real property and establish and conduct various industries, and so long as its enterprises are extended and conducted simply to meet the needs of its members and maintain them in a manner consist-ant with their religious faith, to which its total income and accumulation of property is demoted, will not be dissolved and its privileges forfeited on the ground that it has exceeded its corporate power.</p> <p>2 Same: public policy. The organization and maintenance of a communistic society is not contrary to public policy, though not in accord with prevailing American Ideals, where jts teaching, acquisition and use of its property is not injurious to others.</p>

— Hon. Edmund Nichols, Judge. Action of forcible detainer of real estate. There was judgment on a directed verdict in favor of plaintiff, and the defendant appeals.

— Hon. J. F. Clyde, Judge. Action at law to recover upon an alleged subscription to aid in the construction of a hotel. Verdict and judgment for defendants, and plaintiff appeals.

<p>Appeal from Ringgold District Court.— Hon. H. M. Towner, Judge.</p> <p>The opinion states tlie case.</p>

<p>Appeal from Cerro Gordo District Court.— Hon. Clifford P. Smith, Judge.</p> <p>Action in equity to rescind contract for the sale of land and to recover payment advanced upon such purchase. There was a decree as prayed and defendant appeals.—</p>

— Hon. A. B. Tiiornell, Judge Action in equity to quiet title in plaintiff to certain real estate situate in the city of Council Bluffs.

— Hon. A. D. Bailie, Judge. This action was begun November 14, 1895, to recover judgment on a note of $500 executed by both defendants to one Robbins, and assigned to tbe plaintiff. Another action was commenced on the same day to recover judgment on a note of $600 executed by the defendants to one Graves and assigned to plaintiff. In each the foreclosure of a mortgage on the same quarter section of land, securing the payment of the respective notes was demanded.

<p>Appeal from Page District Court.— Hon. N. M. Macy, Judge.</p> <p>Action on a certificate of insurance on the life of Sumner A. Brooks in favor of the plaintiff, his widow, in the sum of $1,500. The defense was that the contract had been forfeited by nonpayment of premiums. On a trial to the court without a jury, judgment was rendered for plaintiff in the sum of $1,148.91, from which defendant appeals.—</p>

<p>Appeal from Pocahontas District Court.— Hon. A. D. Bailie, Judge.</p> <p>Action brought in equity to recover back moneys paid as part of tbe purchase price of certain real estate described. After trial on the merits, the court dismissed the petition, and gave judgment in favor of defendants for costs. Plaintiff appeals.—</p>

— Hon. W. D. Evans, Judge. As originally commenced in the year 1901, this action was for a divorce, and for the custody of the minor child of the parties. A divorce was granted in accordance with the prayer of plaintiff,' and in the decree provision was made for the custody of the child. Such provision as to custody was modified on application of plaintiff by a supplemental decree, and it is from this decree that defendant appeals.—

— Hon. F. M. Powers, Judge. Action for the amount paid for stock in tlie defendant company and to cancel said stock. Judgment and decree as prayed. The defendants appeal.

— Hon. J. H. Richard, Judge. Action to recover for services rendered by plaintiff to defendant under a contract to drill and case wells for tbe defendant at various points along its line of road, and for damages caused to plaintiff by the failure of defendant to comply with the terms of its contract as to furnishing casings. Verdict and judgment for plaintiff. Each party appeals, but defendant, having first served notice of appeal, will be designated as the appellant.

— Hon. W. E. Green and A. B. Ti-iornell, Judges. Indictment for criminal conspiracy. Trial to a jury, verdict and judgment of guilty, and defendants appeal. — ■

— Hon. O. D. Wheeler, Judge. Suit in equity for the partition of 100 acres of land. Plaintiff claims to own one-third thereof' as widow of Richard Britt, deceased, and defendants claim to own all of it in virtue of a conveyance' to Michael Gordon by Richard Britt through his attorney in fact, James Britt, of date April 20, 1872. The trial court dismissed plaintiff’s pertition, and she appeals.—

— IIon. C. H. Kelly, Judge. Suit to enjoin the defendants from selling real estate under execution. There was a judgment for the plaintiff, from which the defendants appeal.—

<p>Appeal from Polk District Court. — Hon. W. H. McHenry, Judge.</p> <p>Suit for an accounting resulted in a dismissal of the petition. The plaintiff appeals.—</p>

— Hon. J. E. Whitaker, Judge. Action in equity for the dissolution of a partnership and for an accounting. A. H. McCreight came into the action by filing a petition of intervention. The defendants first moved to strike such petition, and, this being overruled, they filed demurrer, and this in turn was overruled. Defendants elected to stand on their motion and demurrer, and, judgment having been entered, they appeal.

— Hon. Wm. Gr. Thompson, Judge. Appeal by plaintiff from an order of Vm. G. Thompson, judge of the district court of Linn county, in a habeas corpus proceeding, dismissing the plaintiff’s petition and remanding the plaintiff to the custody of the defendant, the warden of the State penitentiary at Anamosa, Iowa.—

— Hon. W. H. McHenry, Judge. Dependant was indicted for the crime of cheating by false pretenses. He demurred to the indictment and his demurrer was sustained. The State appeals.—

— Hon W. R. Green, Judge. The defendant was indicted for the crime of an assault with intent to commit murder. On trial he was convicted, and he appeals.—

<p>Appeal from Gass District Court.— IIon. W. R. Green, Judge.</p> <p>Tiib defendant appeals from a judgment convicting him of rape.</p>

<p>Appeal from Winneshiek District Court.— Hon L. E. Eel-lows, Judge.</p> <p>Action to set aside and annul a mortgage. Decree for defendant, and plaintiff appeals.—</p>

<p>Certiorari proceedings to determine the validity of an order granting a temporary writ of injunction.</p>

— Hon. B. H. Miller, Judge. The petition asked that a judgment in a cause entitled as above be vacated because obtained by fraud, and in support thereof alleged the following facts: (1) The’ city of Marion is a corporation and by its attorney E. L. Anderson did secretly and fraudulently pay a filing fee to the clerk of the district court who docketed this case without a petition and without notice of any kind, and he filed a motion keeping it so secret that he did not file a…

— Hon. L. E. Fellows, Judge. Action brought by plaintiff, as guardian, for an order directing the defendants, who have actual custody of the minor wards, to surrender said wards to the plaintiff as guardian. . The defendants allege that they are the uncle and aunt of the wards, and have had their custody and care since the death of their father, and are willing and able to provide for their support and education.

- ■ How. A. D. Bailie, Judge. Suit to subject certain lands to tbe satisfaction of a judgment. Tbe petition was dismissed, and appellant appeals.—

<p>Mines and mining: laborers’ liens: construction of statutes. Code Section 3X05 does not give laborers or miners a lien upon the mining property of the owner in favor of the employés of an operating lessee of the mine.</p>

<p>1 Executors: compensation: salary. Where the application of executors expressly asks the court to fix their annual salary for services, in addition to the statutory compensation, the allowance so made will not be held to include their percentage; and unless otherwise ordered it will be held to apply to past as well as future services, as it is not necessary that such salary be fixed in advance.</p> <p>2 Same: The compensation received by executors in excess of that fixed by statute will be presumed ,to be for extraordinary services unless the contrary is shown.</p>

This is an action of certiorari originally instituted in this court to question the validity of an order finding the plaintiff guilty of contempt in violating an injunction against the illegal sale of intoxicating liquors.—

— Hon. W. K. Green, Judge. Action at law upon a beneficiary certificate issued by defendant to George E. Trotter, and payable upon his death to his wife who is the plaintiff herein. There was a judgment for the defendant, and plaintiff appeals.—

— Eon. W. B. Green, Judge. Suit in equity to recover statutory interest in real estate that was owned by the plaintiff’s husband during coverture. There was a judgment for the defendant, from which the plaintiff appeals.—

<p>Appeal from Howard District Court.— Hon. A. N. Hob-son, Judge.</p> <p>This is a proceeding under tbe provisions of Code, section 622, for the severance of territory from the defendant city. There was a trial to a jury, resulting in a verdict against the proposed severance, and' from the judgment on such verdict the plaintiffs appeal.—</p>

— Hon., A. D. Bailie, Judge. Action at law to recover the amount of a commission lost by plaintiff through defendant’s breach of contract to take and pay for real estate. The trial court sustained a demurrer to the petition, and plaintiff appeals.—

— Hon. A. D. Bailey, Judge. Suit at law to recover a sum of money alleged to have been paid to the defendant under duress, and to recover the value of services alleged to have been .performed at the instance and request of the defendant. There was a trial to a jury, and a verdict and judgment for the plaintiff, from which the defendant appeals.—

<p>Appeal from Linn District Court.— Hon--William Gr. Thompson, Judge.</p> <p>Action at law upon surety bonds guarantying tbe fidelity of a firm of brokers, wbo were doing business for plaintiff in Alaska. Trial to a jury, verdict ánd judgment for plaintiff, and defendant appeals.—</p>

<p>1 Estates of decedents: recovery of funds by administrator. In an action by an administrator against a bank and .a third person for the recovery of funds alleged to belong to the estate, proof that a portion of the fund was transferred by order of deceased in her life time from her account to that of the third person, will not entitle the bank to have the petition dismissed, since the funds still remained in the bank the court will retain jurisdiction of all parties for the purpose of making a proper disposition thereof regardless of any entries on the bank books.</p> <p>2 Bad faith: sufficiency of pleading. A plea that certain funds were obtained by defendant by unfair and undue means, while he was acting as agent and confidential advisor, is sufficient to raise an issue of bad faith.</p> <p>3 Confidential relations: burden of proof. Where a fiduciary and confidential relation is shown to exist, growing out of an agency, the burden is upon the agent to show entire fairness on his part in any transaction for his benefit and freedom of the other party from undue influence.</p> <p>4 Evidence: conversations with a decedent. Evidence of conversations with one since deceased, which is against the interest of decedent and in which the witness took no part, is competent.</p> <p>5 Same: res gestae. Declaration of a decedent to be competent on the ground of res geste must have been made near the time or in connection with the alleged transaction, and when offered on the ground that decedent was in possession of personal property must be explanatory thereof.</p> <p>6 Contracts for future support: evidence. In an action by an administrator to recover alleged funds of an estate on deposit, which defendant had had transferred to his account but which were not paid over to him, and to recover estate funds paid out by him without authority, the evidence is held sufficient to show an agreement between defendant and decedent by which he was to have the funds for his promise to support decedent the remainder of her life.</p> <p>7 Same. The evidence is also held sufficient to show that defendant performed his contract to support decedent.</p> <p>8 Signature: use of lead pencil. The fact that a lead pencil is used in making a signature will not effect its validity.</p> <p>9 Validity of signature: intoxication. Intoxication at the time of signing a contract, unless the maker is rendered unable thereby to appreciate the nature of the act, will not affect the validity of the signature.</p> <p>10 Contract for support: reasonableness. Under the proven circumstances a contract of an aged person to turn over to her trusted advisor the sum of $4,000 in consideration for her future support and burial expenses, is held not unfair though the obligor lived but a short time afterward.</p>

— Hon. William G. Thompson, Judge. Suit for the construction of the will of George Hoefliger, deceased. From the decree, plaintiff, the widow and one of the devisees under the will, appeals.—

— Hon. G. W. Burn-ham, Judge. Action to recover damages for personal injuries resulting from being run into by defendant’s electric railway car at a street crossing. Verdict for plaintiff for $67. Defendant appeals from tbe action of tbe court in overruling its motion for directed verdict at the close of tbe evidence, and from tbe court’s further action in setting aside tbe verdict' and granting a new trial on tbe motion of plaintiff.—

<p>Appeal from Chickasaw District Court.— Hon. L. E. Fellows, Judge.</p> <p>Action at law to recover damages for injury to plaintiff’s team and other property upon a railway crossing. There was a directed verdict in favor of the defendant, and plaintiff appeals. — •</p>

<p>Appeal from Cherokee District Court.— Hon. William Hutchinson, Judge.</p> <p>The opinion states tbe case. Tbe appeal is by tbe defendant.—</p>

— IIon. Trank Eichelberger, Judge. Action at law for damages growing out of an alleged breach of contract. Trial was had to the court without the aid of a jury, resulting in a judgment in favor of plaintiff for the sum of $901.75. Defendant appeals.

— Hon. O. E. Wheeler, Judge. Action at law to recover damages for a personal injury. Trial was had to a jury, and there was a verdict and judgment in favor of plaintiff. The defendant appeals. —

<p>Criminal law: correction of judgment: nun pro tunc order: certiorari. The trial court has no power in a criminal case to correct the original judgment of imprisonment, after the same has been executed, by a nunc pro tunc order adding a fine thereto; and certiorari is the proper remedy for reviewing such order.</p>

Appeal. No appeal will lie from an opinion filed by a trial court nor from a ruling sustaining a demurrer where no exception was taken. Appeal from Calhoun District Court.— Hon. Z. A. Church, Judge. Suit in equity to enjoin the collection of a drainage tax, levied and assessed against plaintiff’s land. The trial court sustained a demurrer to plaintiff’s petition, and she appeals. — ■

— Hon. A. S. Blair, Judge. Suit by a trustee in bankruptcy to subject certain lots -to the payment of claims established against the estate. The petition was dismissed, and plaintiff appeals.—

— Hon. F. M. Powers, Judge. Action upon a contract for the purchase price of certain school supplies, to wit, Kennedy’s Mathematical Blocks. Defendant denied liability, pleaded fraud and collusion in the giving of the order, and some other defenses which may be noticed in the body of the opinion. At the conclusion of the evidence, the trial court directed a verdict for plaintiff, and defendant appeals.—

<p>1 Libel: privileged publication. An alleged libelous publication relating tó a private person concerning whom there is no occasion to speak cannot be privileged.</p> <p>2 Instructions: confusion of issues. Where the defendant in a'libel suit relied upon the truth of the publication as a distinct offense and also claimed that it was privileged, an instruction so blending the defenses that the court’s statement that the publication was not privileged conveyed the inference that it was not true, is held misleading and erroneous.</p> <p>3 Libel per se: how determined. Where there is no evidence tending to support the alleged meaning to be given a publication different from that which its language naturally imports the question of whether it is libelous per se is for the court.</p> <p>4 Libel per se. The published statements concerning a woman that 4 she has come into considerable notoriety in connection with a sensational police court case in which a young man was involved; and, that she has a record well known to the police, are libelous per se.</p> <p>5 Same: instructions. In submitting the defense pi the truth of an alleged libelous publication where there is no evidence as to the meaning of the words published, the court should not leave the jury to construe the meaning of the language, but should tell them what the words must be understood to mean and direct them to find the truth of the publication as so construed.</p> <p>6 Same: evidence. In an action for publishing an alleged libelous statement that plaintiff had a record known to the police court at the time of her marriage, evidence of her record prior to the marriage was competent, but that relating to a subsequent date though previous to the publication was incompetent.</p> <p>7 Evidence: damage. The plaintiff’s statements in an action for libel as to the amount of damages is a conclusion and inadmissible.</p>

<p>Appeal from Calhoun District Court.— IIon. F. M. Powers, Judge.</p> <p>Action in equity to enjoin collection of tax. Decree for plaintiff, and defendants appeal.—</p>

— Hon. A. D. Bailie, Judge. Action to recover on a real estate commission contract. Prom a verdict and judgment in favor of plaintiffs, the. defendant appeals.—

— Hon. Z. A. Church, Judge. Action to recover damages to plaintiff resulting from the death of his minor child, alleged to have been due to the negligence of defendant. At the conclusion of the evidence, the court sustained a motion to direct a verdict for the defendant, and plaintiff appeals.—

— Hon. J. F. Clyde, Judge. Action to recover damages caused by defendant’s cattle to plaintiff’s corn. From judgment against him, the defendant appeals.—

<p>Appeal from Monroe District Court.— Hon. Frank W. Eici-ielbeeg-er, Judge.</p> <p>The defendant was convicted of manslaughter, and from the judgment entered he appeals.—</p>

<p>Appeal from Polk District Court.— Hon. James A. Howe, Judge.</p> <p>Trial resulted in a directed verdict and judgment for the defendant. Plaintiff appeals.—</p>

— Hon. Wm. Gr. Thompson, Judge. This is a suit for the construction of the will of Benjamin T. Hall, deceased. 'The trial court ruled that Norman Hall took nothing under the will, and he appeals.—

— Hon. E. E. Gay-nor, Judge. The opinion states the case. At the close of the evidence for both parties, there was a directed verdict and judgment in favor of defendants, and plaintiff appeals. — 1

— Hon. John T. Scott, Judge. Action at law to recover contract price of certain dairy separators. The defendant admitted the account or claim sued upon, and pleaded a counterclaim on attachment bond. There was a verdict and judgment for defendant, and plaintiff appeals.—

<p>Appeal from Decatur District Court.— Hon. H. E. Evans, Judge.</p> <p>The defendant was convicted of murder by poisoning, and from the judgment entered he appeals.—</p>

— TIon. John T. Scott, Judge. Action for services rendered in the defense of a person accused of murder. Verdict was directed for defendant, and judgment rendered thereon. The plaintiff appeals.—

<p>1 Railroads: injury to licensee: evidence. Proof that a station agent received his orders from, worked under and made his’ reports to a certain person as superintendent of that division, was sufficient to show that such person was in fact the superintendent, that the conduct of the station came within the scope of his duties and was therefore known and acquiesced in by the defendant company.</p> <p>2 Same: instruction. In an action for injury to the wife of a station agent while assisting her husband with his work, an instruction that if she was there with the consent of her husband, as was her custom and this was known to and acquiesced in by the superintendent the defendant company would owe her the duty of ordinary care, was not subject to the objection that the jury might conclude that her presence with consent of her husband alone imposed a duty on the company,.</p> <p>3 Same. Where the wife of an agent while assisting her husband as was her custom, known to defendant, was injured by the derailment of a train claimed to have been operated at an excessive speed over a defective track, an instruction that defendant was under no obligation to repair its track for her protection but did owe her the duty of ordinary care in the use of the track, was not objectionable as eliminating the claim of defective track.</p> <p>4 Care as to licensee. The wife of an agent whose custom is to assist her husband in his duties at the station, which fact is known to the officers of the road, is a licensee and the company owes her the duty of exercising due care to avoid inflicting injury upon her while so engaged.</p> <p>5 Same: evidence. The fact that the railway company posted in the waiting room a notice forbidding all persons except designated employes from .entering the station office was not conclusive of plaintiff’s right in the office, but a fact among others to go to the jury as bearing on the general question of defendant’s consent to her presence in the office.</p> <p>6 Negligent operation of train: evidence. The evidence, in view of the defective condition of the track, is held to warrant a finding that the train which left the track and injured plaintiff while in the station office was being operated at a dangerous rate of speed.</p>

<p>1 Indictment: setting aside. Neither failure to return and file exhibits with an indictment, nor of a witness before the grand jury to sign the minutes of his testimony, is ground for setting the indictment aside.</p> <p>2 Witnesses: objection to competency. An objection to the competency of a witness not made at the time he is offered is waived.</p> <p>3 Intoxicating liquors: nuisance: evidence. On a prosecution for keeping a liquor, nuisance evidence tending to show sales to another than defendant is competent.</p> <p>4 Same. Proof of sales by a clerk will support a conviction for keep a liquor nuisance.</p>

— IIon. Henry Bank, J udge. Action in equity for the partition of real estate. From the decree entered, both parties appeal, but the defendants, having first perfected their appeal are designated as appellants. The further material facts are’ stated in the opinion.

— Hon. John F. Oliver, Judge. Suit on a certificate of deposit. There was a directed verdict for the plaintiff, and a judgment thereon. The defendants appeal.- — ■

— Hon. Wm. Hutchinson, Judge. Suit in equity to enjoin defendant, who is road supervisor, from removing a fence and improving and grading a road along the north line of plaintiffs land. The trial court dismissed the petition, and plaintiff appeals.

— Hon. Byron W. Preston, Judge. This is a proceeding for the probate of the will of Stephen Wharton, deceased, offered for probate by A. M. Harrah, devisee, who is also named as executor, to act without bond, and contested by George Wharton, his son, and Esther Wharton, his widow, who, having been adjudged insane, is represented by a guardian. The grounds of contest were want of mental capacity, and undue influence.

A. J. House, Judge. Action to recover damages for injuries received by plaintiff while in defendant’s employ due to the fall of a piece of gas pipe from an upper story of defendant’s building upon him. There was a trial to a jury resulting in a verdict and judgment for plaintiff in the sum of $32,916, and defendant appeals.

<p>Appeal from Lee District Court.— Hon. H. Bank, Jr*, Judge.</p> <p>Action in ejectment and for damages. Judgment as prayed, from which defendants appeal.—</p>