Volume 133 — Iowa Reports

'Appeal from Cass District Court.— Hon O. D. Wheeler, Judge. This is a contest over the last will and testament of Thomas Hardenburgh, deceased. There was a trial to a jury and a verdict sustaining the will. From a judgment on the verdict the contestants appeal.

— Hon W. H. McHenry, Judge. Action in equity.for an injunction and to quiet title .to real estate. From a decree in favor of plaintiff, the defendant Harding appeals.—

— Hons. A. B. Thornedd and N. W. Macy, Judges. Action in equity to enjoin the treasurer of Harrison county from paying certain warrants issued under contracts for the purchase of road-grading machines; the holders of the warrants being made parties defendant. Decree for plaintiff as prayed. Defendants appeal.—

<p>1 Negligence in the sale of oil: evidence. The evidence, in an action for a death caused by the explosion of a substance sold by defendant and used by plaintiff’s intestate as kerosene oil, is held to require a submission of defendant’s negligence in the sale and delivery of the same to the jury.</p> <p>2 Instinct of self preservation: presumption. Where there were no living witnesses of an accidental death the presumption that deceased was in the exercise of due care obtains.</p> <p>3 Accidental death: contributory negligence: evidence. Under the evidence in the instant case, the use of what was supposed to be kerosene oil to kindle a fire from which an explosion resulted causing death," it is held to present a question of contributory negligence for the jury.</p> <p>4 Verbal admissions: proof: instruction. The statements of a witness as to verbal admissions of a party should be considered by the jury with great caution, but when repeatedly and understandingly made and the precise language is detailed often afford satisfactory evidence.</p> <p>5 Damages. A judgment for $3,000 in an action for negligence causing the death of a girl fifteen’ years of age, of average health, intelligence and capacity, is not excessive.</p>

— How. W. B. Quaeton, Judge. Suit for separate maintenance and tbe custody of minor children. There was a cross-petition asking for a divorce from the plaintiff. Trial and judgment for the plaintiff. The defendant appeals.—

— How. Geo. W. Burnham, Judge. Action for double damages due to the killing of certain cattle belonging to plaintiff by a train which was being operated on defendant’s right of way, because of defendant’s failure to properly fence the same. Trial to a jury, and directed verdict for defendant. Thereafter the court on motion set aside the verdict and directed a new trial. Defendant appeals.—

— Hon. H. Bank, Jr., Judge. The defeudaut was. convicted of a felony and appeals from an order denying him a transcript of the shorthand notes at the expense of the county. —

— Hon. W. H. McHenry, Judge. Action in equity by plaintiffs as beneficiaries to recover on a certificate of membership issued by the defendant to George D. Wood in his lifetime. There was a decree in favor of plaintiffs, and defendant appeals.—

<p>Appeal from Linn District Court.— IIow. J. H. Preston, Judge.</p> <p>Ti-ie defendant was convicted of burglary, and appeals.</p>

— Hon. G. W. Burn-ham, Judge. The defendant was indicted for the crime of assault with intent to commit rape upon a female child under the age of consent, and having been adjudged guilty, appeals.—

— Hon. B. H. Milleb, Judge. Action for specific performance of a contract by which defendants obligated themselves to purchase a certain tract of land from plaintiffs, and pay therefor on delivery of a good and sufficient warranty deed and abstract showing perfect title in plaintiffs, on or before the 1st day of March, 1903.

— IIon. N. W. Macy, Judge. Action to recover damages caused by a failure on the part of defendant, as clerk of the district court, to properly perform an official duty. A demurrer to the petition was sustained. Plaintiff having elected to stand on his pleading, there was judgment against him dismissing his petition and for costs and he appeals.—

— Hon. J. H. Preston, Judge. Suit in equity to cancel and set aside a deed. Trial to the court and judgment for the defendants. The plaintiffs appeal.

<p>Appeal from Cedar District Court.— Hon. J. H. Preston, Judge.</p> <p>Ti-ie opinion states the case.</p>

— Hon. Obed Caswell, Judge. This is an action to bave a claim of plaintiff tbe Garrison Canning Company against the estate of defendant’s testator decreed to be a preferred claim, and to rescind and set aside a settlement of such claim as a claim of the third class, by which settlement the other plaintiffs as directors of the company have become bound to refund to the estate a portion of the amount paid to the company under such settlement.

<p>1 Appeal: filing of pleading: nunc pro tunc order. Where a pleading is treated by all parties to the action and by the. court as having been filed it cannot be contended on appeal that it was not filed because not entered upon the appearance docket; and no prejudice arises from a nunc pro tunc order directing its entry.</p> <p>2 Municipal corporations: ' claims for damages: time for filing. To authorize suit against a special charter city upon an" unliquidated demand, notice of the demand need not be filed with . the recorder within thirty days from the date on which the cause of action accrued; it is timely if filed thirty days prior to commencement of action.</p> <p>3 Appeal: motion to dismiss: review. Although the court may be justified in refusing to receive further evidence after sustaining a motion to dismiss the action, yet where the ruling is based on the ground that plaintiff’s action is barred, thus causing him to elect between testing the correctness of the ruling and dismissing the case before submission to the jury, the question of limitation of the cause of action will be reviewed on appeal.</p> <p>4 Municipal corporations: actions against: time of commence- - ment : evidence. An action against a special charter city tor unliquidated damages caused by a change in the grade of a street is in time if commenced within three months from the date of completion or abandonment of the work. Evidence held to show timely commencement of the instant action.</p>

<p>Appeal from Linn District Court.— Hon. J. H. Preston, Judge.</p> <p>Action to recover the purchase price for machinery erected by the plaintiff firm on the premises of the defendant company under a written contract. The defense was that the machinery was not in accordance with the requirement of the contract, that it should be. satisfactory to the defendant; and there were counterclaims which need not be considered for the purposes of this opinion. The facts with-reference to the contract and the efforts of the plaintiff to ■comply with it appear from the report of the case on a former appeal (124 Iowa, 737), in which a judgment on a verdict for plaintiff was reversed. This is an appeal by defendant from a second judgment on a verdict for plaintiff after a trial on substantially the same evidence (save on one point t.o be hereafter noted) as that presented in the former trial.</p>

— - Hon. M. C. Matthews, Judge. Suit in equity asking a construction of the will of Eichard Waller, deceased, and praying that the plaintiff be adjudged to be entitled to a certain portion of his estate derived through the will of the plaintiff’s wife. A demurrer to the petition was sustained, and the plaintiff electing to stand thereon, judgment was rendered against him for costs, and he appeals.—

<p>Master and servant: safe place to work: delegation of duty to warn. In yhe operation of a mine it is a duty of the master to warn employés of an expected explosion in blasting, and this duty cannot be so delegated to a fellow servant as to relieve the master of liability for the neglect of the person to whom the delegation is made.</p>

<p>Appeal from Cedar District Court.— Hon. J. H. Preston, Judge.</p> <p>This is a suit in equity to enjoin defendants from erecting a schoolhouse, from collecting a tax claimed to have been voted for that purpose, from paying out any taxes for the' building of the schoolhouse, and for other relief. Upon presentation of the petition to one of the judges of the Eighteenth judicial district of Iowa, a temporary injunction was issued as prayed. Motion to dissolve the temporary writ was overruled, defendants answered, and the case went to trial upon the merits, resulting in a decree dismissing plaintiff’s petition, and plaintiffs appeal.</p>

<p>Contract of adoption: specific performance: statute of frauds: testamentary character. An instrument by which, in consideration of the surrender to them of a child, parties accept the ■ duties of parents to the child and agree that it shall have all the rights of inheritance, may be specifically enforced as a contract so as to secure to the child its interest in the estate of the adoptive parties, although invalid as an instrument of adoption because not acknowledged and recorded as required by law.</p> <p>And such an agreement is not within the statute of frauds since a surrender tíf the child is part performance; nor is it testamentary in character so as to be affected by the statute relating to the execution of wills.</p>

— Hon. A. B. Thornell, Judge. Action to enjoin a change in tbe text-books used in East Kiver school township. The petition was dismissed, and plaintiffs appeal.—

— Hon. A. S. Blair, • ' Judge. Action in equity to enjoin the mlaintenance of an alleged liquor nuisance. Decree for the defendants, and plaintiff appeals.

<p>Appeal from, Tama District Court.— Hon. Obed Caswell, Judge.</p> <p>Action in equity alleging a conversion of personal property on which plaintiff claims to have had a landlord’s lien, and for an accounting. There was a decree in favor of the defendant Holger Christensen, and plaintiff appeals.—</p>

— Hon. B. H. Miller, Judge. This is an appeal from a judgment in habeas corpus proceedings. By the judgment the relator was awarded his liberty from imprisonment in the State penitentiary at Anamosa, and the defendant appeals.—

<p>Appeal from Linn District Court.— Hon. J. H. Preston, Judge.</p> <p>Ti-ie defendant was convicted' of having knowingly utteTed a forged check, and appeals.—</p>

— Hon. Henry Bank, Jr», Judge. There are two appeals, and they are respectively taken by interested heirs from orders approving -intermediate reports made by Martha J. Smith, administratrix. The facts necessary to be considered are stated in the opinion.—

— Hon. W. S. Withrow, Judge. Action to recover from defendant W. H. Colton, and the other defendants as sureties on his bond, the sum of $25,300 received by said Colton as the cashier of the plaintiff bank, and by him wrongfully appropriated to his own use, and not accounted for.

— Hon. James D. Gamble, Judge. Action to recover $1,000 alleged to have been paid S. L. Collins on a note by mistake. Subsequent to the beginning of the action C'ollins died and the administrators of his estate were substituted as parties defendant. At the close of plaintiff’s evidence, a verdict was directed for defendants and judgment entered thereon. The plaintiff appeals.—

— I-Ion. J. L. Kennedy, Judge. From a conviction of’ murder in tbe second degree tbe ■defendant appeals. Tbe opinion states tbe essential facts.

— Hon. Edmund Nichols, Judge. Defendant was indicted, tried and convicted of the crime of practicing medicine without a license, and appeals to this court.—

— Hon. Edmund Nichols, Judge. Suit at law to recover for tbe care of tbe defendant’s insane minor son. Judgment for tbe- plaintiff, from wbicb tbe defendant appeals.—

— IIon. J. F. Oliver, Judge. Suit in equity to compel defendant to execute and deliver to plaintiff a paid-up policy of insurance. Defendant answered pleading the statute of limitations. To this plaintiff demurred, and, his demurrer being overruled, judgment was rendered dismissing his petition, and he appeals.—

— IIon. Edmund Nichols, Judge. Action in equity to set aside a sheriff’s deed, and to have established in plaintiff the right to redeem from the sale in pursuance of which the deed was executed. The lower court gave plaintiff a decree allowing him to redeem within fifteen days from the date thereof, and quieting the title of the premises in him upon making such redemption. Defendants appeal.—

— 'IIon. Edmund Nioiiols, Judge. Action at law to recover damages for the negligent killing of stock at a highway crossing by one of defendant’s trains. Trial was had to a jury, and there was. verdict and judgment for plaintiff. Defendant appeals.—

<p>Appeal from Johnson District Court.— Hon. O. A. Byington, Judge.</p> <p>Action in equity to have the interest of the defendant Moses I. Eash in certain lands established and set apart and subjected to the payment of a judgment held by plaintiff. There was a demurrer to the petition which was sustained. Plaintiff refusing to plead over, there was a judgment in favor of defendants dismissing the petition, and for costs. Plaintiff appeals.</p>

<p>1 Appeal: dismissal. An appeal in a criminal case will not be dismissed on motion unless the defendant has expressly consented thereto, but it will be decided upon its merits.</p> <p>2 Appeal: waiver of objections: review. Where a defendant in a criminal case, has withdrawn all objections to evidence made during" the trial and -all exceptions to rulings of the court, the appellate court will not review the questions involved therein, unless he has been inadequately defended or his interests so neglected or misconceived that he cannot be said to have had a fair trial.</p> <p>3 Same. A waiver of all objections to evidence and all exceptions to rulings of the court upon the trial includes rulings upon objections to instructions and all other matters upon which the court was required to pass during the trial.</p>

— - Hon. D. V, Jackson, Judge. The petition alleged that “ defendant is a corporation organized under, and by virtue of, the laws of the State of Illinois as a life insurance and beneficiál sociéty, with its head office at Kock Island in said State, and various subordinate lodges at other and divers places, of which one is located at Muscatine, Iowa ”; that August Krause became a member of such lodge July 26, 1898, to whom defendant then issued an insurance policy on his…

— Hon. S. M. El wood, Judge. ' Action on a fire insurance policy. Verdict and judgment for plaintiff. Defendant appeals. This is the second trial of the case, a former judgment in plaintiff’s favor having been reversed on appeal to this court. See 113 Iowa, 652.

<p>Appeal from Mahasha District Court.— Hon. B. W. Preston, Judge.</p> <p>This is a suit for the construction of the will of Emiline A. Clark, deceased. The trial court found that the heirs of Mary 0. Wolcott, who was one of the legatees in the will, took each one-seventh of her estate, not including five shares of stock issued by a corporation as dividends; that the children of George P. Clark took the interest devised to said George P.; and that the widows of John A. Clark and Edgar B. Clark, both deceased, took nothing of the estate of Emiline A. Clark. All parties in interest appeal.—</p>

<p>Appeal from Lucas District Court.— Hon. M. A. Roberts, Judge.'</p> <p>Action at law to recover upon an accident insurance policy. The trial was to a jury, and resulted in a verdict and judgment for plaintiff. The defendant appeals.—</p>

— Hon. F. E. Gay-nor, Judge. Action in equity to set aside a sheriff’s deed and quiet -title to land. Decree for plaintiff, and defendants appeal. ‘ The opinion states the material facts.—

— Hon. W. Gr. Clements, Judge. Suit in. equity to establish the title of real estate in certain heirs of the deceased, Frederich Krebs. The appellant, James D. Patterson, filed a cross-petition claiming title to the same land and asking that the same be vested in him by decree. There was a trial and judgment for the defendant appellees. James D. Patterson alone appeals.—

<p>Appeal from Woodbury District Court.— Blow. William Hutchinson, Judge.</p> <p>Action for damages caused by the breaking of an elevator cable. Judgment was entered for plaintiff. The defendant appeals.—</p>

<p>1 Taxation: assessment of omitted property: estoppel. Where notice is given of a proposed assessment of omitted property and upon failure of the tax payer to respond an assessment is made by an officer having jurisdiction, the tax payer cannot urge, in an action at law to collect the tax, that the officer erred in finding that the property had been omitted or in placing the value upon it which he did.</p> <p>2 Same. Prior assessments and the approval thereof by the proper authorities is not conclusive on the county that the tax payer had no other property subject to taxation for the same years, where the tax payer made fraudulent statements regarding the same to the assessors.</p> <p>3 Same: assessment. Before an action at' law will lie to recover taxes on omitted property there "must be a compliance with the statute and one of the requirements is a proper assessment made upon notice to the tax payer. Neither the notice sent the tax payer nor a demand constitutes an assessment; there must be a listing of the property and an estimate of the sums which are to be a guide in the apportionment of the tax.</p> <p>4 Same: assessment of national bank stock: evidence. Where a County Treasurer or Auditor attempts to assess omitted property he must list it the same as an assessor. In the instant case the evidence is reviewed and held insufficient to show an assessment of bank stock to the share holders and consequently an action at law will not lie to recover the tax.</p> <p>5 Same. Courts have no authority either to make or correct an assessment of property and unless this has been done by the proper person and in a legal manner there can be no recovery in an action at law.</p>

— Hon. J. T. Scott, Judge. Action by plaintiff, as a resident of the county of Keokuk, to restrain the defendants from maintaining a liquor nuisance. Decree for plaintiff, from which defendant, M. L. Thome, appeals.—

<p>Appeal from Clinton District Court.— Hon. A. B. Barker, Judge.</p> <p>Suit for a divorce. Judgment for the plaintiff, from) which the defendant appeals.—</p>

<p>Insurance of agent’s property: validity of contract. The recording agent of an insurance company cannot issue a valid policy covering property of a corporation of which he is an officer and director without notice to or consent of the company.</p>

— .Hon. J. F. Oliver, Judge. These two cases involve the same propositions of law and were tried together in the district court. They are each appeals from the action of the city council of defendant city involving certain assessments made against properties belonging to plaintiffs.

<p>1 Executions: sale of property after levy. The interest of one holding a contract for the purchase of land is subject to levy and sale and the lien, which attaches to the interest in the land and not merely the contract, cannot be divested by a subsequent surrender of the contract.</p> <p>2 Sale on execution: collateral attack. Irregularities in a sale on execution which do not render the sale void should be taken advantage of by motion to set the sale aside, they cannot be questioned in an injunction proceeding.</p> <p>3 Contracts: assignment. A contract which by its terms is nonassignable may still be transferred subject to all defenses which would have been available against the assignor.</p>

— Hon. H. K. Evans, Judge. Action of mandamus to compel the defendant board of supervisors to establish a public road. Demurrer to petition sustained, and plaintiff appeals.—

<p>Certiorari proceeding to review the action of the defendant as judge of the district court of Woodbury county in adjudging the plaintiff guilty of contempt of court for the violation of a temporary injunction restraining him from the illegal sale of intoxicating liquors.—</p>

— IIon. J. H. Apple-gate, Judge. Action to recover money expended by plaintiff while acting as broker for defendant. Judgment was entered as prayed, and defendant appeals.—

'Appeal from Plymouth District Court. — :Hon. J.- L. Kennedy, Judge. Action in equity for specific performance of a contract to convey real estate, or, in the alternative, a judgment for damages. On trial the plaintiff’s petition was dismissed with costs, and they appeal.—

<p>1 Schools: ESTABLISHMENT OF HIGHWAYS: TAXATION. A School district has power to procure the opening of a road for the purpose of rendering a school accessible, and is not required to proceed by condemnation but may secure the same by purchase and may levy a tax to pay therefor.</p> <p>2 Same: certiorari. Certiorari will not lie to review or annul the act of a school board in procuring a road to a school house and levying a tax to pay therefor.</p> <p>3 Taxation: fraud: injunction. The collection of a tax properly levied to defray the cost of procuring a road for school purposes will not be enjoined, even though the School Board may have been guilty of collusion and fraud in increasing the cost of the same.</p> <p>4 School bonds: determination of validity. The validity of bonds issued to defray the cost of procuring a road to a school house will not be determined in proceedings to enjoin the collection of taxes levied to pay the same and proceedings to review the action of the Board in issuing the same, to which the holders of the bonds were not made parties.</p>

— Hon. J. L. Kennedy, Judge. Action for the partition of a quarter section of land in Osceola county. The relief sought was denied, and the title quieted in the cross-petitioner, Alma Poulson. The other parties appealed.—

— Hon. H. M. Towner, Judge. Action to set aside a settlement alleged to have been secured through fraud, duress, and undue influence, in which defendants' conspired to cheat, wrong, and defraud the plaintiff out of his money and property. The trial court set aside the settlement, and gave plaintiff judgment for the amount of property secured from him. Defendants appeal.

— Hon. F. R. Gaynoe, Judge. Action to recover $85 damages for injuries to plaintiff’s team, and for the value of a buggy and harness destroyed by reason of the running away of the team, caused by fright at the defendant’s automobile, negligently operated by him in the streets of the city of Le Mars. Verdict for plaintiff in the sum of $75. From the judgment on such verdict, defendant appeals; a certificate of appeal being granted by tbe trial judge.—

Appeal frorg, Woodbury District Court.— Hon. F. It. Gaynor, Judge Suit to recover damages for a personal injury. Triál to a jury and verdict and judgment for tbe plaintiff. The defendants Martin appeal.—

— IIon. H. K. Evans, Judge. Action to recover a commission under a contract to find a purchaser for certain real property. Verdict and judgment for plaintiff. Defendants appeal.—

Appeals from Marshall District Court.— Hon. G. W. Burn-ham, Judge. Actions in equity to quiet title to real estate. As originally brought these actions were in the name of James 3L P. Shetler as plaintiff. Before trial, his death was suggested, and the present plaintiff, administrator of his estate, was substituted.

— Hon.' J. K„ Whitaker, Judge. Plaintiff’s intestate, John F. Hanley, was killed by being run against and upon by a street car operated by the defendant company in the city of Ft: Dodge, and this action is brought by plaintiff as administrator to recover damages. The trial resulted in a verdict and judgment in favor of defendant, and plaintiff appeals.—

— Hon. W. G. Clements, Judge. Action to recover a loan of $600 made by the county to defendant Frank Whitsel and his wife, Nella Whitsel, as surety, ánd to foreclose a mortgage, securing said loan, on a certain forty-acre tract of land, the title to which is in the defendants, as owners in common.

— Hon. W. G. Clements, Judge. Suit to recover for the breach of warranty in a deed. There was a judgment for the defendants. The plaintiff appeals.—

<p>1 Wills: vested remainders. Where a testator gave his widow the use of all his property for her support and maintenance during the minority of his youngest child, and upon its arrival at majority a life estate in one-third of all his property, the remaining two-thirds to be divided among his children, naming them; it is held that upon the death of testator the children surviving him took a vested interest subject to the estate for years and the life estate of the widow.</p> <p>2 Same: estate for years. An estate for years will support a vested remainder.</p> <p>3 Vested remainfiers: descent. The interest of a devisee who takes a vested remainder passes by descent to his heirs upon his death.</p>

— Hon. James D. Gamble, Judge. Action iu equity to quiet title to land. Cross-bill by defendants asking similar relief. The district court found and confirmed a life estate only in the plaintiff, with remainder over to the defendant. The plaintiff appeals.—

— IIon M. A. Eoberts, Judge. Suit to recover back money paid on the purchase price of land. Trial to the court, and judgment for the plaintiff. The defendants appeal.—

<p>1 Appeal: former decision: law of the case. The decision iii the same case on a former appeal constitutes the law of the case, on all questions then considered, when presented the second time.</p> <p>2 Water- courses: pollution: nuisance. In the absence of statutory authority a city has no right to discharge its sewerage into a stream to the material injury of a lower riparian proprietor, and no degree of care in the manner of doing so will purge the act of its wrongful character, if the natural effect is to pollute the waters of the stream to the injury of others.</p> <p>3 Same: damages. In an action for injuries caused by polluting the waters of a stream recovery may be had for all damages sustained within five -years from the date the action was commenced.</p> <p>4 Admission of evidence: harmless error. Defendant’s failure to exercise due care is not essential to a right of recovery for injuries caused by polluting the waters of a stream, and the admission of evidence that subsequent to commencement of .the action defendant had constructed appliances intended to prevent pollution of the water, was harmless error.</p>

— LIon. Henry Bank, Jr., Judge. Suit in equity to redeem certain premises from a foreclosure sale. Decree dismissing plaintiff’s petition, and he appeals.—

— IIon. Georgei W. Wakefield, Judge. Action to recover damages for breach of implied warranty of title in the sale of a mare. Verdict and judgment for plaintiff. Both parties appeal, but, as defendant’s appeal was first perfected, he will be treated as appellant.

<p>Appeal from Linn District Court.— Non. W. G. Thompson, judge.</p> <p>The opinion states the case.—</p>

<p>1 Mutual benefit associations: non payment of assessment: forfeiture: burden of proof. A beneficial association having in its hands an unapplied advance assessment of a member cannot claim a forfeiture of the certificate on the ground of non payment of a subsequent assessment; and on the issue of forfeiture it has the burden of proof.</p> <p>2 Recovery of funeral benefits. Where the by-laws of a beneficial association provide for the payment of funeral benefits to the next of kin or the person having charge of the burial, an allegation that plaintiffs are next of kin and proof that they are children of deceased and in fact have charge of the burial entitles them to recoyer the benefit.</p>

<p>Appeal from Poweshiek District • Gourt.— Hon. W. G. Clements, Judge.</p> <p>The defendant, having been convicted on charge of adultery, appeals.</p>

<p>Appeal from Hamilton District Court.— Eon. J. E. Richard, Judge.</p> <p>The opinion states the case.—</p>

<p>1 Principal and surety: discharge of surety: instruction. Under an alleged agreement that in case defendants should procure a mortgage from their co-defendant and assign the same to plaintiff they should be released from liability as sureties on a certain note of their co-defendant, an assignment of the mortgage made it in legal effect collateral securety for payment of the note irrespective of the question of defendant’s . release; and an instruction that it was defendant’s contention that if they should assign the mortgage “ to plaintiff as collateral security” plaintiff would release them from liability as sureties on the note was not erroneous.</p> <p>2 Same: evidence. Where the surety on a note given by the grantees' of land contended, in a suit on the note, that he signed the same on condition that he should be released from liability if he procured a mortgage on the land from the grantees and assigned the same to the payee, a letter from the grantees to the payee of the note relating to the preliminary negotiations for the purchase of the land, was admissible, as showing the situation with reference to which the agreement between the parties was made.</p> <p>3 Evidence: declarations against interest. The fact that an admission of continuing liability made by one surety is not admissible against another surety, is not ground for excluding it as a declaration against interest on the part of the one making it.</p> <p>4 Res judicata. Where a grantee of land executed to his grantor a note for part of the purchase price, and to protect a surety on the note executed to him a mortgage on the land, which he assigned to the grantor in discharge of his obligation; it is held, in a suit to recover an installment of interest on the note, that a record showing a foreclosure of the mortgage, in which the decree simply declared a forfeiture without reciting a personal judgment or showing personal service on defendant, did not establish a prior adjudication releasing defendant from further personal liability.</p>

<p>Appeal from Polk District Court.— IIon. A. II. McVey, Judge.</p> <p>The defendant was found guilty of murder in the first degree, and appeals from a judgment of life imprisonment.</p>

<p>1 Contract for sale of goods: construction. A contract to pay a salesman a commission on his sales, will not, as a matter of law, be held to include commissions on a mere solicitation of sales from which a sale results after the expiration of the contract, but the meaning of the language as determined by the trade usage is for the jury.</p> <p>2 Judicial notice: ,trade usage. The courts will not take judicial notice of a trade usage unless general in respect to trade, territory and class.</p> <p>3 Evidence: motion to strike. A motion to strike the entire testimony of a witness when only a portion is incompetent should be overruled.</p> <p>i Evidence: exclusion. It is error to exclude the evidence of a defendant which tends to contradict that of the plaintiff with respect to a trade usage.</p> <p>5 Same. A witness not' shown to be familiar with the trade usage of a particular business or the locality is not competent to testify with respect to the usage.</p> <p>6 Contract service: recovery of compensation: waiver. Plaintiff agreed in his contract of service that defendant should retain a part of his compensation as a guaranty for faithful performance. During the tqrm of employment he purchased a like business and was discharged. In his action for commissions earned he included the amount so retained, and the question of whether defendant had waived any right on account of plaintiff’s action being involved, his right to recover should have been submitted to the jury.</p> <p>7 Appeal: argument: jurisdiction: amount in controversy. An argument will not ordinarily be stricken because not in strict compliance with the rules; nor will a cross appeal be dismissed because involving less than $100, when the entire sum on both appeals exceeds that amount.</p>

— Hon. W. B. Qttai?.ton, Judge. Action in equity to recover upon promissory notes executed by tbe defendant Gunhus to the plaintiff bank, and to foreclose in respect of certain collateral securities. The defendant bank claimed to be the owner of one of the collateral notes, being a note for $2,500 executed by one Jacobs and secured by mortgage on certain lands situated in the State of Minnesota. There was a decree in favor of plaintiff bank as against both defendants.

— Hon. M. A. Roberts, Judge. This is an action instituted by a citizen in the name of the State for the abatement of a liquor nuisance, in which a temporary injunction is asked.

<p>1 Insane persons: removal of guardianship proceedings. An insane person cannot of his own volition change his domicile, and where a guardian has been legally appointed in one county the court will not order a transfer of the proceedings to another county in which the ward has no property, especially where there is objection by the guardian and relatives.</p> <p>2 Guardian and ward: removal of guardian: grounds. The guardian of an insane person who fails to make the annual report required by law; loans his ward’s money without authority of court and in his own name; commingles the same with funds of his own and others; and toward whom the guardian has an xtreme feeling of hostility, should be required by the court to account and should be removed from office although bad faith is not shown, his bondsmen responsible, and it is the custom in that county to make loans without authority of court.</p> <p>3 Removal of guardian: appointment of successor. The Supreme Court upon adjudging on appeal that a guardian should be removed will not appoint a successor, but will remand the matter to the district court for proper order of removal and appointment.</p>

— Hon. Joi-in T. Scott, Judge. Action for divorce on tbe grounds of cruelty and desertion. Decree was granted as prayed. The defendant appeals.—

— Hon. W. G. Clements, Judge. Action to quiet' title to “ about two acres of accretions ” formed in front of plaintiff’s land, where it was originally bounded on tbe Des Moines river. Defendant, owning an adjoining tract of land, also bounded on the Des Moines river, claims the accretions or a portion thereof as appurtenant to his land.

<p>Appeal from, Polh District Court.— Hon. James A. Howe, Judge. ■</p> <p>Action upon a foreign judgment.- The trial court dismissed the petition, with costs, and plaintiff appeals.—</p>

<p>Contempt: precedure: statement of facts. To support a judgment for contempt, where the court acts upon personal knowledge in the premises, a statement of facts upon which the order is based must be entered upon the record, or filed and preserved when the court keeps no record; but the filing of a certified copy of the shorthand notes containing the record upon which the order rests without a translation thereof is not a compliance with the statute.</p>

— IIon. Hugh Brennan, Judge. These three actions are brought by the Board of Park Commissioners of the city of Des Moines to establish its jurisdiction and right of control for park purposes under chapter 179, Acts 28th General Assembly, over certain premises claimed by defendants as constituting a part of certain several lots to which they respectively have title.

— Hon. W. H. McHenry, Judge. Action to cancel and set aside as invalid a pretended conveyance, under which the defendant Cordelia I. Kary claims to hold title to property belonging to plaintiff, and to enjoin and restrain defendants from taking possession of the premises described in such conveyance, and for damages.

<p>1 Cemeteries: rights of lot owners. One selecting a family burial lot from an unplatted tract of land dedicated by the owner to cemetery purposes acquires the right to protect and care for the graves of his dead and to prevent trespass thereon.</p> <p>2 Cemeteries: disputed lot lines: settlement by township trustees: jurisdiction. Township trustees-to whom an owner conveyed land for cemetery purposes have no jurisdiction to determine a disputed boundary line between adjacent lot owners, holding simply by right of selection and burial therein, where notice of the meeting at which action was taken was not given the parties.</p>

<p>Appeal from Monroe District Court.— Hon. M. A. Roberts, Judge.</p> <p>The indictment accused the defendant of the crime of having in his possession burglar’s tools with intent to commit the crime of burglary. On the trial he was convicted, and he appeals.</p>

<p>Appeal from Clarice District Court.— Hon. H. K. Evans, Judge.</p> <p>The defendant was convicted of the crime of murder ' in. the second degree, and appeals.—</p>

— Hon. A. Hv McVey, Judge. The defendant was indicted jointly with one Harris Levich for the crime of murder in the first degree, and, on trial by a jury, he was convicted of manslaughter in February, 1903. The case was, appealed to this ,court, where it was reversed, the opinion on said appeal being reported in 124 Iowa, 414. On a retrial of the case he was again convicted of manslaughter and sentenced to the penitentiary. He appeals.—

<p>Appeal from Iowa District Court.— I-Ion. O. A. Byington, Judge.</p> <p>Action at law to hold defendant liable for money loaned a co-partnership, known as M. Callan, Jr., & Co., of which firm it is charged defendant was either an actual or an ostensible member. The case was tried to the court without a jury, resulting in a judgment for plaintiff, and defendant appeals.—</p>

<p>Appeal from Woodbury District Court.— Hon. Wm. Hutchinson, Judge.</p> <p>This action was begun before W. T. Stafford, a justice of tbe peace, who sustained a demurrer to the petition. A writ of error was sued out to the district court, where the ruling of the justice was reversed, and the cause remanded. The defendants, having procured an appropriate certificate, appeal.—</p>

— Ho'n. J. H. Preston, J udge. Action in equity for an injunction to restrain the collection of a tax, etc. Prom a decree in favor of defendants, the plaintiff appeals.—

— Hon. ¥m. McHenry, Judge. Appeal was taken to the district court from certain special assessments against plaintiffs’ property for the cost of curbing, guttering and paving a street. The city council assessed the entire tract of ground, which exceeded one hundred and fifty feet in depth.

<p>Appeal from Johnson District Court.— Ho-n. O. A. Lying-ton, Judge.</p> <p>The opinion states the facts.—</p>

<p>Carriers: transportation of perishable commodities : negligence. Where a carrier undertakes to transport perishable commodities in a refrigerator car he must provide a supply of ice, not only at the point of shipment but as required along the line, which will reasonably insure a safe transit to the point oí destination and a failure so to do is negligence. Evidence held to show negligence.</p>

— Hon. C. H. Kelley, Judge. Action in equity toi restrain the defendant, as county treasurer, from enforcing against the property of plaintiff taxes levied for the construction of a ditch within a district including plaintiff’s lands.

— IIon. Erank W. ' ' Eichelbergeb, Judge. The defendant issued its policy of insurance to the plaintiff for a term of one year commencing December 1, 1904, covering a stock of merchandise. The entire premium was paid. On January 31, 1905, plaintiff “ delivered and surrendered up ” the policy to the agent who took the application with the request and demand that it be canceled and the balance of the unearned premium returned to plaintiff.

<p>1 Action for breach of warranty: estoppel to deny vendor’s title. One who, through mesne conveyances, receives from his grantor by warranty deed all rights acquired by the latter through a tax deed, though void, but under which • the land was occupied and improved, and also all rights acquired through a quit claim deed from a railway company under a claim that the same was indemnity land although this claim was subsequently rejected by the government, acquires thereby a preferential right to make a homestead entry and upon occupancy and improvement to receive a patent from the government; and, having thus procured a patent he cannot say that it is the source of an independent title, that he acquired nothing under his deeds from his grantors and recover of them the purchase price, in an action for breach of a covenant of warranty as to seisin.</p> <p>2 Covenants: breach: damages. One who' withholds from the purchase price of. land a sum with which to perfect his vendor’s title and for a less sum procures a patent to the land from the general government, can only recover nominal damages for a breach of his vendor’s covenant of seisin; and for failure to recover nominal damages a reversal will not ordinarily be ordered.</p>

<p>Baggage: liability of carrier for delay. A case of photographs of goods a commercial traveler is engaged in selling is not the ordinary baggage of a passenger which a railway company is required by statute to carry free of charge, and where the same is checked without disclosing the contents of the case the company is not liable in damages for delay in delivering the same.</p>

— Hon. W. H. McHenry, J udge. Appeal from the action of the lower court on a trial without a jury, in directing the appellant, as receiver, to allow the claim of Powell against the company in the sum of $1,550, and pay dividends thereon as ordered.—

— Hon. O. A. Byington, Judge. Suit to enjoin the enforcement of and to cancel a judgment rendered in the justice court of D. S. Barber, Esq., for the sum.of $99.99, September 6, 1904, in favor of W. F. Murphy, executor, against Larkin Evans, on the grounds of fraud practiced by plaintiff in procuring it, and for that the original notice was not served, and, if served, demanded judgment for an amount in excess of the court’s jurisdiction.

— Iíon. W. H. McHenry, Judge. Suit in equity to cancel certain notes held by defendants, and for tbe value of a piano, which it is alleged defendants have converted to their own use. Defendants filed a general denial and a counterclaim. The case was tried to the court, resulting in a judgment for plaintiff in the sum of $342.06, and a decree canceling the notes. Defendants appeal.—

<p>Appeal from Hancock District Court.— Hon. C. P. Smith, Judge.</p> <p>Appeal from judgment of district court modifying the assessment of certain real .estate for taxation.—</p>

— IIon. Franklin C. Platt, Judge. Action to recover from defendant as plaintiff’s ageñt for the sale of land the amount received for said land in excess of the sum reported and accounted for by defendant, and also the amount of commission paid defendant for effeeting such sale. Verdict and judgment for plaintiff. Defendant appeals.—

— Hon. Hugh Brennan, Judge. This is an action upon a judgment rendered in the district court of Seward county, Neb. Defendant pleaded many defenses which will be noticed in the body of the opinion. Judgment for plaintiff, and defendant appeals.—

<p>Appeal from Buchanan District Court. — ■ Hon. A. S. Blair, Judge.</p> <p>From the action, of the city council of the defendant town in levying an assessment for the construction of a sewer in front of plaintiff’s property,.plaintiff appealed to the district court. Upon trial in that court the assessment was canceled and set aside, and defendant appeals.—</p>

— Hon. James A. Ho.we, Judge. This is a suit brought by the plaintiff for a writ of mandamus to compel the Louisiana Purchase Exposition Commission to pay to him the sum of $200, which he claims to be due him from the State of Iowa under a contract made with the commission.

— How. J. K>. Whitaker, Judge. Action in equity to restrain the levy and collection of an assessment on abutting properties sought to be made to pay the cost of a public improvement. From a decree in favor of plaintiffs, the defendants appeal.—

— IIon. John T. Scott, Judge. Action in equity for partition of real estate. The case is stated in the opinion. The decree was adverse to both plaintiff and Martha A. Wallingford in some respects, and each has. appealed. Plaintiff will be denominated the appellant.—

<p>Husband and wife: alienation of affections: evidence of defendant’s wealth. In an action for alienating the affections of plaintiff’s wife, evidence regarding defendant’s wealth is immaterial, and a showing that defendant had stated that he would give all he possessed for the woman will not render it competent; and the error in its admission is not cured by an instruction forbidding its consideration on the question of damages.</p>

<p>1 Schools: annual meeting: notice. Notice of an annual school meeting arid of an election to vote bonds for the erection of a school house which is in substantial compliance with the statute, is sufficient. In the instant case the notice is held to fulfill the requirements of the statute.</p> <p>2 Same: posting of notices. Proof that notices were left with the teachers at some of the schoolhouses of a district with directions to post the same is sufficient to raise a presumption that they were posted, in the absence of evidence to the contrary, and this in connection with a showing that they- were actually posted on the remainder of the schoolhouses is sufficient proof of posting in conformity with the statute.</p> <p>3 Same:' issuance of bonds: submission of question: form of ballot. It is the general rule that in submitting the question of issuing school bonds ' the ballot must fairly and intelligently present the question to be voted upon, but where all the preliminary steps are regular an omission from the proposition submitted of the limit of indebtedness to be incurred, as provided in the resolution of the board and notice of the election, will not invalidate the election.</p> <p>4 Bonds: injunction. A court of equity will not interfere by injunction with the action of a school board in the issuance of bonds unless it is clearly shown that its action was illegal.</p>

<p>Intoxicating liquors: nuisance: injunction: defenses. A pharmacist who violates the specific requirements of the statute regulating the sale of intoxicating liquor, thus rendering the place where business is carried on a nuisance under the statute, will not be heard to'say in response to an action to enjoin the nuisance that he was acting in good faith; or, that the party bring the matter to the attention of the court acted from questionable motives.</p>

<p>1 Boundaries: assumption as to extent of claim. Where neither landowner has occupied tip to a particular boundary for a sufficient length of time to establish title by adverse possession, or to raise an inference of acquiescence, either party has the right to assume that the other is claiming only the land described in the deed under which he holds possession.</p> <p>2 Boundaries: excess in acreage: division of same. Where defendant bought the “ west half ” of a certain quarter section of land, paying a lump sum therefor, and measured off eighty rods; and thereafter plaintiff purchased the “east half” and adopted the line located by defendant, both supposing that the quarter contained one hundred and sixty acres when in fact it exceeded that number of acres, the deeds will not be reformed so as to convey to plaintiff all 'save the west eighty rods.</p> <p>Half quarters and quarter quarter sectión corners are equidistant between the section and half section corners.</p>

<p>Appeal from Iowa District Court.— IIon. O. A. Byington, Judge.</p> <p>Action for fees and expenses as constable. Judgment for tbe defendant. Tbe plaintiff appeals.—</p>

<p>Appeal from, Johnson District Court.— Hon; O. A. Byington, Judge.</p> <p>Action in equity to restrain defendant from maintaining a ditcb along its right of way which gathers and discharges water on the plaintiffs land. There was a trial and judgment for the plaintiff, from which the defendant appeals.</p>

— Hon. Hugh Brennan, J udge. This is an action to recover a commission for effecting a sale of real estate for defendant. There was a trial to a jury and verdict and judgment for plaintiff. The defendant appeals.—

— TIon. F. R. Gaynor-, Judge. Suit to recover damages for personal injuries caused by a defective sidewalk. Trial to a jury, and verdict and judgment for the plaintiff for $2,500. The defendant appeals.—

<p>Appeal from Wright District Court.— IIon. W. D. Evans, J udge.</p> <p>Action for breach of warranty, and to recover the purchase price of a threshing outfit .consisting of ■ an engine, separator, and necessary attachments. Triahto a jury, verdict for plaintiff in the sum of $669.59, and defendant appeals.—</p>

— Hon. J. E. Whitaker, Judge. ' An action in equity to declare void and enjoin the collection of certain special assessments. The district court dismissed the petition, and the plaintiffs appeal.—

— Hon. Z. A. Church, Judge. Action to recover the possession of eighteen head of hogs. Among other things defendants pleaded a former judication as to the'ownership of the property in a search warrant proceeding before a justice of the peace. Trial to a jury, directed verdict for defendants, and plaintiffs appeal.—

— Hon. A. B. Thornell, Judge. Action to enjoin the payment of bridge fund warrants which were issued to the defendant Reiff, while he was a member of the board of supervisors of Harrison county. Judgment for' the plaintiff. Defendant Reiff appeals.—

— Hon. F. M. Powers, Judge. Suit in equity to set aside a deed because of the mental incapacity of the grantor. Judgment for plaintiff. The defendant appeals.—

<p>Appeal from Polk District Court. — 'Hon. James A. Howe, Judge.</p> <p>The defendant was convicted of having committed the crime 'of rape, and appeals.—</p>

— Hon. H. M. Towner, Judge. Action in equity for an injunction. The opinion states the case. From a decree in favor of the plaintiffs, the defendant Wood Binning appeals.

F. B. Gay-nor, Judge. Action in equity to recover back an amount of money paid by plaintiff to defendant as the purchase price of certain real estate; the title to which, as alleged, had failed. The case having been submitted to the court on its merits, there was judgment dismissing plaintiff’s petition, and awarding costs to defendants. Subsequently, and on motion of plaintiff, the judgment was set aside, and leave was given each party to introduce further evidence.

- — Hon. O. A. Byington, Judge. Action for commission alleged to have been earned in finding a purchaser of real estate. From judgment as prayed, the defendant appeals.—

— Hon. James A. Howe, Judge. Suit to recover for personal injuries sustained by the plaintiff in the defendant’s mine. Trial to a jury, and verdict and judgment for the plaintiff, from which the defendant appeals.—

— ■ LIon. Hugh Brennan, Judge.- Certiorari proceeding to determine the legality of an order declaring the jury lists of Polk county illegal. The opinion states the case.—

— Hon. E. W. Eichelberger, Judge. A condemnation proceeding instituted by the plaintiff to recover damages for the use by the defendant of an abandoned right of way. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.—

— Hon. F. 0. Platt, Judge. The record shows that S. M. Barnes, a resident of Bremer county, employed the plaintiff to find a purchaser for his land, and that the latter induced W* E. Olosson, of Buchanan county, to buy it. This action was begun in Buchanan county, and both Barnes and Closson made parties defendant. Hpon the conclusion of the introduction of evidence in behalf of plaintiff, the defendant Closson moved that the jury be directed to return a verdict in his favor.

[Appeal from Story District Court.— Hon. J. H. Richards, Judge. John G. Wood was seised of two tracts of land, and the following instrument was executed by bim and his son Wm.

— Hon. J. H. Apple-gate, Judge. The defendant was indicted for murder in the first degree. On trial he was convicted of manslaughter, and he appeals.

— IIon. J. H. Richard, Judge. Action to recover $2,600 as the agreed value of land conveyed by plaintiff under a contract with defendant, who had failed and neglected to convey to plaintiff land which should have been conveyed in exchange therefor. There was a trial without a jury, and judgment for the defendant, from which plaintiff appeals. — ■

<p>Adultery: sufficiency of evidence: instructions. Mutual disposition of the parties with no proof of intercourse other than opportunity will not support a finding of adultery; and the error of instructions, permitting such a finding from mere proof of mutual disposition and opportunity, is not cured by a further charge that to establish illicit intercourse the evidence must be inconsistent with any reasonable hypothesis of innocence.</p> <p>Evidence held insufficient to establish adultery.</p>

— Hon. Z. A. Church, Judge. Action for damages on account of delay in transmitting and delivering a telegraphic message. There was a judgment for defendant and plaintiff appeals.—