Volume 134 — Iowa Reports

Vista District Court.— Hon. A. D. Bailie, Judge. Action in equity to enjoin the treasurer of Buena Vista county from selling the real estate in controversy for the payment of personal taxes assessed ágainst W. E. Brown, the former owner of the property. A supplemental petition was filed in the case, and a demurrer to the third count thereof was sustained. The plaintiff elected to stand on his pleadings, and appeals from the judgment on the demurrer.

— Hon. A. S. Blair, Judge. Action to recover damages for personal injuries resulting from falling down an open elevator shaft on defendant’s premises. Verdict and judgment for the plaintiff. Defendant appeals.—

— Hon. F. M. Powers, Judge Suit on a promissory note signed by the defendant ánd J. A, Mavity. There was a directed verdict for the plaintiff, and thereafter the defendant’s motion to set the verdict aside was sustained. The plaintiff appeals.—

— Hon. L. E. Fellows, Judge. Action to recover judgment on three promissory notes executed by defendants to one Tim Finn, and to foreclose a mortgage securing the same. Defendants pleaded the statute of limitations as to the second note, and offered to confess judgment on the other two notes for the amount of the principal thereof and accrued interest remaining unpaid and for attorney’s fees.

Appeal ' from Audubon District Court.— Hon. O. H. Wheeler, Judge. The defendant was indicted for assault with intent to commit rape upon one Lena Peterson. There was a verdict of guilty of simple assault, and from the judgment entered upon said finding he appeals.—

— Hon. Clieeord P. Smith, Judge. Action in equity for an injunction, decree. The opinion states the case. A decree as prayed for was granted, and the defendant appeals.—

— Hon. O. D. Wheeler, Judge. Action iu equity to restrain the enforcement of a judgment against the plaintiff by defendant Sharpless, the party in whose favor the judgment was recovered, or by defendants Harl & Tinley, assignees of such judgment, on the grounds that defendant Sharpless is insolvent and that plaintiff had, prior to the assignment, a valid claim against Sharpless in an amount exceeding the amount of the judgment.

— Hon. P. M. Powers, Judge. Hannah Johnson died leaving her surviving a husband, Lawrence Johnson, and their two sons, Clarence H. and Joel Johnson. Her will was filed for probate March I, 1905, and by its terms gave all her property to Clarence for use during his life and upon his death to his children.

— Hon. A. B. Tiiornell, Judge. Action to recover damages for personal injury. There was a directed verdict and judgment for the defendant, and plaintiff appeals.

— Hon. Clifford P. Smith, Jndge. Action in equity to set aside a sheriff’s deed to plaintiff’s undivided interest in certain real property, and to quiet title in plaintiff to suck undivided interest, as against defendants Craig & Ray, wbo claim to be owners thereof under such sheriff’s deed. Decree for defendants, from which plaintiff appeals.—

— IIon. H. M. Towner, Judge. Action for a commission alleged to have been earned in finding a purchaser of land. Trial to jury resulted in verdict and judgment for tbe defendant. Tbe plaintiff appeals.—

<p>Appeal from Greene District. Court.— Hon. Z. A. Church, Judge.</p> <p>Suit on a written contract of sale. Trial to a jury, and a judgment for the defendant. The plaintiffs appeal.- — ■</p>

— Hon. W. R. Green, Judge. Suit to recover damages for a personal injury. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.

<p>1 Contract for exchange of land: rescission: fraud: evidence. The evidence in an action to rescind a contract for an exchange of properties is reviewed and held sufficient to show that the same was procured by the false representations of one of the parties, who, while representing himself as an agent was in fact a beneficial owner.</p> <p>2 Rescission: decree. Upon rescission of a contract for the exchange of lands the decree should place the parties in statu quo.</p> <p>3 Intervention. A claim of title by a third party will not be tried on a petition of intervention in a suit to foreclose a mortgage.</p>

— Hon. J. H. Preston, Judge. Suit in equity to set aside a deed to land. The facts sufficiently appear in the opinion. Judgment for the plaintiff. The defendant appeals.

<p>Appeal from Linn District Court.- — -Hon. J. H. Preston, Judge.</p> <p>Action at law upon a policy of life insurance. Judgment for plaintiff, and defendant appeals.</p>

— Hons. B. H. Miller and W. G. Thompson, Judges. Action in equity growing out of the work of improving certain streets in the city of Tipton, this State.

— Hon. W. H. McHenry, Judge. Action to recover damages for an invasion upon and injury to real estate. Plaintiffs are the owners of certain lots abutting on what is known as “ State Street,” in the defendant city. They allege that long prior to the matters complained of they had improved their said property, and this was done with reference to and in conformity with the natural surface of said street.

— Hon. A. N. Hobson, Judge. Proceedings to establish a claim against the estate of J. W. Leonard, deceased. Erom an order disallowing the claim, plaintiff appeals.—

— Hon. O. A. Byington, Judge. Suit in equity to enjoin defendants from making certain improvements by paving a street in defendant city, from letting a contract for said paving to defendant Horrabin, and from assessing the cost of said improvement to abutting property owners. The trial court dismissed the petition, and plaintiff appeals.—

— Hon. George W. Wakefield, Judge. Dependant and one McGuire were jointly indicted for conspiracy. On a separate trial defendant was found guilty and sentenced. From this sentence he appeals.—

— Hon. J. R. Whitaker, Judge. This is an action to enjoin tbe incorporated town of Hampton, acting through its officers, from openiug certain alleged streets south of and including Eleventh street, in Kennedy’s addition to that town. James Kennedy acquired title to the land March 16, 1891, and caused a plat to he filed June 10th of the same year. This plat consistéd of blocks 1 to 9, inclusive, of the annexed plat.

— Hon. C. W. ' Vermillion, Judge. On the 6th day of February, 1902, H. B. Sloan was appointed by the district court of Van Burén county trustee of the estate of Bates M. Manning, a minor, and qualified as such, trustee. The principal contest in this case arises on objections filed by the guardian and guardian ad litem of Bates M. Manning to the reports of the trustee.

— Hon. W. B. Quarton, Judge. Action to recover damages on account of alleged unlawful sales of intoxicating liquors to plaintiff’s husband. There was a judgment for the defendants, and the plaintiff appeals. — ■

— Hon. W. Gr. Thompson, Judge. Action at law on a promissory note. The defendant pleaded defensive matter, and also set up a counterclaim. Trial was had to a jury, resulting in a verdict and judgment for defendant. Plaintiff appeals.—

— Hon, G. W. Burn-ham, Judge. Trial on objections to a guardian’s report. The objections were overruled, and the guardian discharged. The ward appeals.—

<p>Garnishment: personal liability of garnishee: defense. An administrator against whom a judgment has been entered as garnishee at the instance of a creditor of one of the heirs to the estate, and who, for the purpose of defeating the garnishment, paid the money over to the heir and procured his discharge, cannot defeat a personal action against him for the same by showing that the creditor made an unsuccessful attempt in the probate court to have the order of discharge set aside.</p>

— Hon. Obed Caswell, Judge. Action for the appointment of a guardian for defendant, under the provisions of Code, section 3219, on the ground that defendant was a person of unsound mind.

-— Hon. J. H. Bothrock, Judge. Suit at law to recover a commission alleged to be due for procuring a purchaser for the defendants’ land. There was a directed verdict for the defendants, and from a judgment thereon the plaintiff appeals.—

<p>Appeal from Johison District Court.— Hon. A. O. Byington, Judge.</p> <p>Action to admeasure dower. Petition denied, and plaintiff appeals.—</p>

<p>Appeal from Cedar District Court.— IIon. B. H. Miller, Judge.</p> <p>Action at law to recover damages from defendants, who are the board of directors of a county agricultural society, for injuries received by plaintiff in being struck with a baseball, while standing in the amphitheater or grand stand of the society for the purpose of watching the races then in progress. Defendants’ demurrer to the petition was overruled, to which they excepted and they thereupon answered, denying the allegations of plaintiff’s petition, denying liability for any act done, and pleading assumption of risk and contributory negligence upon the part of plaintiff. Upon these issues the case was tried to a jury, resulting in a verdict for plaintiff, and defendants appeal.—</p>

— Hon. B. H. Miller, Judge. Action for value of a trunk checked as baggage over defendant’s railway and lost. Verdict was returned for about one-tenth of the damages claimed, and judgment entered thereon. The defendant appeals.—

<p>Appeal from Jones District Court.— Hon. B. H. Miller, Judge.</p> <p>The opinion states the case.—</p>

<p>1 Payment: application. A debtor has no authority to direct the application of an involuntary payment arising from the foreclosure of a chattel mortgage.</p> <p>2 Chattel Mortgages: foreclosure: application of proceeds. A mortgagee of personal property should apply the proceeds arising from a sale on foreclosure to the satisfaction of the mortgage debt, and not to the extinguishment of a landlord’s claim for rent which he may hold by assignment.</p> <p>3 Same. A tenant cannot insist that the proceeds arising from a sale of non exempt property under the foreclosure of his chattel mortgage, shall be applied to the satisfaction of a landlord’s claim for rent covering exempt property, which is also held by the mortgagees, so as to clear the exempt property from that liability for the benefit of the tenant.</p>

<p>1 Seduction: dismissal of prosecution. A defendant in a prosecution for seduction is not entitled to a dismissal under Code, section 5536, because the trial has been postponed over the second‘term at which it was triable, where by agreement it was continued until a civil action for damages involving the same facts had been disposed of, the civil action being on trial at the time the motion to dismiss was ruled upon.</p> <p>2 Seduction: evidence of offer of settlement. One charged with seduction may lawfully attempt a settlement of the civil claim for damages and the act cannot be construed in the criminal prosecution as a confession of guilt; and a reference, in the cross-examination of prosecutrix, to the civil action and also to. a conversation with defendant’s attorney in the presence of defendant with reference to the date of the seduction, did not authorize her examination on redirect as to a proposition of settlement and offer of money to dismiss the civil action.</p> <p>3 Evidence. On a prosecution for seduction evidence of the birth of a child is admissible, at least in support of the claim of intercourse and the date thereof.</p> <p>4 Election between acts. Although a prosecutrix testifies to several acts of intercourse yet she cannot be compelled to elect on which she will rely, in a prosecution for seduction,- since the seduction occurred at the time of the first act, and the subsequent acts were material as bearing on the relation of the parties and to corroborate the prosecutrix respecting the initial act.</p> <p>5 Instruction: alibi. An instruction that “if the entire evidence, including the defense of alibi, upon the whole case raises a reasonable doubt as to the defendant’s guilt then you should acquit him” is held to have been without prejudice, although the court inadvertently used the word “ defense ” where the word “ evidence ” was intended.</p>

M. O. Matthews, Judge. Suit at law on a nonnegotiable promissory note, dated February 10, 1900, signed by O. S. Richardson, and guaranteed by Elizabeth A. Richardson. Elizabeth A. Richardson pleaded an equitable counterclaim, to which a demurrer was interposed and sustained. She appeals from a judgment against her on the pleadings.—

<p>1 Fraud: instructions. The plaintiff in an action for fraud based upon a general plan of acts and statements intended to deceive, is entitled to have his theory of the case submitted to the jury; and omission of all reference of liability upon proof of the general plan which the court outlined in stating the issues, at the same time instructing that proof of certain alleged acts and statements will not authorize recovery, is erroneous.</p> <p>2 Fraud: exchange of lands : withdrawal of evidence. In an action for fraud in procuring title to land, pursuant to a contract for the exchange of properties, withdrawal of evidence as to defendant’s representations of the value of his land and by which a deed placed in escrow was obtained, was erroneous.</p>

<p>1 Warranty: pleading: estoppel. Where the plaintiff in an action on a contract for the sale of telephones admits in its reply that there was a warranty, it is thereafter precluded from denying that fact.</p> <p>2 Proof of parol warranty. Where the memoranda of a sale does not purport to be a complete contract parol proof of a warranty is admissible.</p> <p>3 Parol warranty: question or pact. Where a printed warranty upon which plaintiff relies is not made a part of the contract it becomes one in parol, and it is for the jury to determine whether the warranty was in fact as printed, or was oral.</p> <p>4 Contracts: rescission. A contract may be rescinded for breach of warranty even though severable, if the breach goes to the entire consideration.</p> <p>5 Examination of witnesses: discretion. The cross-examination of a witness is so largely a matter of discretion that its flagrant abuse must be shown to justify interference.</p> <p>6 Offer of proof: reduction to writing. Error cannot be predicated on a neglect to require counsel to reduce to Writing matters which he expects to prove by a witness, where no request was made therefor and the court was not asked to strike the oral statement thereof or to direct the jury to disregard it.</p> <p>7 Objection to proceedings. The court may disregard objection to proceedings where no reason is assigned therefor.</p> <p>8 Exclusion of evidence: harmless error. In an action for the price of telephones a letter of recommendation from another purchaser to the effect that the instruments were satisfactory was admissible on the question of whether plaintiff relied upon an alleged warranty; but its exclusion was not erroneous where the agent negotiating the sale was afterward permitted to testify that he exhibited the letter at that time.</p> <p>9 Demonstrative evidence: discretion. Permission of tests or demonstrative evidence in the presence of the jury is largely discretionary and the action of the trial court in the matter will rarely be interfered with.</p> <p>10 Sales: breach of warranty: rescission. Where a number of telephones admittedly of the same design and quality are sold for use on one system, defendant is not required to test the entire number to entitle him to rescind the contract for a breach of the warranty.</p>

<p>1 Judges: disqualification: interest in suit. A judge is not disqualified from hearing and deciding a motion to dissolve an injunction restraining a city from condemning land to protect its water supply, because he is a taxpayer of the city and indirectly interested in its supply of water.</p> <p>2 Condemnation: injunction: dissolution. Generally the action of the trial court in dissolving a temporary injunction will not be reversed on appeal, where the answer denies the allegations of the petition which are essential to entitle the plaintiff to relief; and this is especially true where it is sought to enjoin a city from condemning land to protect its water supply solely on the ground that the condemnation proceedings are a sham and in the interest of private parties, and there is no showing of damage nor that the matters relied upon can not be urged in the condemnation proceeding.</p>

<p>Counties: record of board of supervisors: amendment. A board of supervisors after the lapse of four years, has no power to change or amend its record of the canvass of a statement of consent to the sale of intoxicating liquors, so as to make it show a finding that a majority of the voters of a certain township had signed the petition, where the original record contained no such finding, nor any statistics from which the board could have found such fact.</p>

— • Hon. W. G. Thompson, Judge. Proceedings to establish a claim for services against the estate of Seymour Bennett, deceased. Defense, settlement and payment of claim. Trial to a jury, verdict and judgment for defendant, and plaintiff appeals.—

— Hon. W. B. Quarton, Judge. Action for the partition of real property. There was a decree dismissing the plaintiff’s petition, and he appeals. An appeal was also taken by other parties to the action.

<p>Appeal from Benton District Court.— Hon. G. W. Burn-ham, Judge.</p> <p>Action to enjoin and restrain the defendant, who was the State Treasurer, from collecting an inheritance tax upon certain property which' passed to plaintiffs in virtue of the will of one Thos. Montgomery, who died in Benton county October 3, 1897.' The trial court dismissed the petition, and plaintiffs appeal.</p>

<p>1 Physicians: negligence: evidence. Where it was charged that defendant negligently applied to plaintiff’s limb a caustic substance which burned the flesh, and that he negligently failed to remove the same when his attention was first called to the pain thereby produced, and the evidence warranted a finding that he was not negligent in the first instance but was in not removing the application, he should have been permitted to state when testifying as an expert whether the caustic had spent its force at the time he was called to relieve the pain.</p> <p>2 Same: examination of witness. Where a druggist has testified concerning a book formula for compounding a solution it is proper to cross-examine him with respect thereto, but this does not authorize placing the contents of the book before the jury on his redirect examination.</p> <p>3 Physicians: evidence negativing negligence. A physician charged with negligence in using a solution compounded for him by a druggist may show that such druggist was doing a reputable business and holding himself out as a person skilled in his profession; since, if such is the fact, it would not be negligence to use the solution, in the absence of some circumstance which would put the physician on guard.</p> <p>4 Evidence: remarks of court: prejudice. Where a physician charged with negligence in using a certain solution -prepared for him by a druggist sought to show that physicians rely generally on druggists’ for the purity, quality and proper compounding of their drugs and medicines, a remark of the court, in ruling the evidence out, that from his own observation and knowledge of the matter such was not the fact, was prejudicial; and the error was not cured by subsequently admitting the evidence with a reiteration of the same remark.</p> <p>5 Expert, evidence: instructions. As a general rule expert testimony should be given consideration like all other testimony which the court permits to go to the jury, and should be accorded such weight as, in view of all the evidence of every kind and nature and its reasonableness and the apparent candor and competency of the witness, in fairness it demands.</p> <p>6 Same. An instruction which permits the jury to pass upon the materiality of a false assumption of facts embraced in a hypothetical question addressed to an expert; to determine whether a false assumption of a material fact is of such a character as to destroy the value of an expert opinion based thereon; and permitting the jury to accord some weight to an opinion based upon an assumption wholly or partially incorrect, is erroneous.</p>

— Hon. J. H. Preston, Judge. Action at law to recover from defendant, as stockholder in an insolvent so-called corporation, the amount of a judgment held by plaintiff, upon the ground that the said pretended corporation, known as the “ Cedar County Lumber & Manufacturing Company,” was never organized as provided by law. The case was tried to a jury, resulting in a directed verdict for defendant, and plaintiff appeals.—

<p>1 Homesteads: liability for debts. A creditor cannot subject the proceeds of a homestead, acquired before the debt was contracted, to the payment of his claim.</p> <p>2 Husband and wife: separate estate of the wife. Property acquired by the wife with funds arising from her own separate enterprise, carried on with the consent of her husband, cannot be subjected to the payment of his debts; and labor performed by the husband in improving the property will not render it his, since he may give his time and exempt earnings to his wife if he chooses.</p> <p>3 Creditors bill: right of action. The judgment of a Superior Court with the clerk’s filing indorsed thereon is nqt sufficient basis for a creditor’s bill.</p>

<p>Appeal from Cedar District Court.— Hon. G. Thompson, Judge.</p> <p>Proceedings for tbe probate of a will, contested by tbe heirs at law of testatrix, on tbe grounds that she was of unsound mind when said will was executed; that said will was procured by the undue influence of proponent, who was named as the beneficiary; that said will was subsequently revoked. The jury found that tbe will offered for probate was not tbe valid will of deceased, and judgment was entered for contestants. Tbe proponent appeals.—</p>

— -Hon. W. G. Thompson, Judge. Action originally brought at law against the defendant Don L. Glick, ’ to recover judgment on promissory notes. The action was aided by attachment; and, by direction of plaintiff, four separately described tracts of land — one of forty acres, one of nineteen acres, one of one acre, and one of an undivided one-half of fifteen acres — were levied upon.

— Hon. B. H. Miller, Judge. Suit in equity to enjoin the defendant from attempting to enforce a decree of the District Court enjoining the plaintiff herein from keeping a nuisance, and asking that the decree so enjoining him be set aside. There was a judgment for the plaintiff, from which the defendants appeal.—

<p>Appeal from Linn District Court.— Hon. J. H. Preston, Judge.</p> <p>Action to recover damages for personal injuries received by tbe plaintiff while in the employ of defendant as lineman, and alleged to have resulted from the negligence of defendant in not advising plaintiff of danger involved in the particular operation in which he was engaged; Verdict and judgment for plaintiff. Defendant appeals.—</p>

<p>Appeal from Jasper District Court-.— Hon. Byron W. Preston, Judge.</p> <p>Action at law by plaintiff as executor of the estate of S. D. Bobinson, deceased, to recover the value of personal property belonging to the estate, and alleged to have been converted by defendant. From a verdict and judgment in favor of plaintiff, defendant appeals.—</p>

— Hon. L. E. Eel-lows, Judge. Action to set aside and declare void proceedings by which an independent school district was attempted to bo formed, and for an injunction. The action having been heard' on its merits, the petition of plaintiff was dismissed, and there was judgment in favor of defendants for costs. Plaintiff appeals.—

On rehearing. Action in equity to enjoin defendant from closing the chimneys in a partition wall. The defendant answered in denial and by cross-petition alleged that the partition wall had been erected by himself, and that plaintiff had made use of it without paying therefor, for which he asked an accounting.

<p>Intoxicating liquors: nuisance: evidence: review. Where the evidence in an action to restrain a liquor nuisance is in irreconcilable conflict on the question of illegal sales, the judgment of the lower court-, having the opportunity to observe the demeanor of the witnesses while testifying, will not be disturbed on appeal.</p>

<p>1 Fraudulent conveyances: husband and wife. Although an oral contract of the husband to convey land to his wife could not have been enforced because of indefiniteness, yet if it has been carried out the creditors of the parties can not set the conveyance aside on the ground of vagueness in the original agreement.</p> <p>2 Same: assignment of inheritance. The contract of the husband to assign his prospective inheritance to his wife cannot be annulled by his creditors on the ground of fraud, after the same has been performed in good faith and for a consideration.</p> <p>3 Same: transactions between husband and wife. While both husband and wife are liable for family 'necessities, yet the wife may refuse to expend her professional earnings for that purpose except upon an agreement of the husband to repay her, and if such an agreement is in good faith made and thereafter carried out it is not voidable at the suit of the husband’s creditors.</p> <p>4 Deeds: consideration: parol evidence of. The real consideration for a deed from a husband to his wife may be shown' by parol, where creditors of the husband are seeking to set the same aside as fraudulent.</p>

— Hon. W. R. Green, Judge. Action for damages occasioned by the frightening of plaintiff’s team by the operation of defendant’s automobile resulted in a verdict and judgment against defendant, from which he appeals.—

— Hon, J. E. Whitaker, Judge. Aotton to rescind contract for exchange of personal property for land. The defendant in a cross-petition prayed for specific performance, which was decreed, and plaintiffs petition dismissed. The plaintiff appeals.—

— Hon. J. H. Preston, Judge. This is an appeal from a ruling of the court below sustaining a demurrer to plaintiff’s petition. The substance of th.e allegations of the petition follows. It is said: That in the year 1899 the town council of the defendant town— a municipal corporation of this State — passed a resolution as follows: “ Moved and seconded that the marshal and street commissioner be ordered to remove the sidewalks and fences now standing across Penn street.

’ Appeal from Polh District Gourt.— Hon. Hugh Brennan, Judge. Action to recover damages resulting to the estate of plaintiff’s intestate by reason of his death, due to injuries received in a collision between a car operated by the defendant company and a hose wagon, belonging to the fire department of the city of Des Moines, on which the deceased, a member of the department, was riding.

— 'Hon. D. Y. Jackson, Judge. Action to recover damages growing out of a railway accident. From a judgment in favor of plaintiff the defendant appeals.—

— How. Wm. Hutchinson, 'Judge. Action to enjoin defendants from interfering with plaintiffs fences across certain alleged streets. Decree as prayed. Defendants appeal.

— Hon. James A. Howe, Judge. This is an action to set aside a judgment rendered against the defendant and for a new trial of the case based upon unavoidable casualty and misfortune preventing an appearance by defendant to the original suit. The trial court denied the petition, and defendant appeals.-—

— Hon. J. H. Richard, Judge. Action in equity to establish a judgment existing in plaintiff’s favor against defendant as a lien on certain real property of defendant acquired since the rendition of the judgment. The defendant pleaded a discharge in bankruptcy subsequent to the rendition of the judgment, and asked, by way of cross-demand, that the judgment be canceled.

— Hon. W. D. Evans, Judge. Action at law to recover damages for personal injuries received by plaintiff resulting from his being thrown from the ladder of a pile driver operated by defendant, which, it is claimed, was insecurely fastened. Defendant filed a general denial and pleaded assumption of risk by plaintiff. It also pleaded that the negligence, if any, was that of a fellow servant, for which defendant was not responsible.

<p>Appeal from, Boone District Court.— LIon. J. R. Whitaker, Judge.</p> <p>Suit in equity to compel the specific performance of a contract, or, in lieu thereof, to recover damages.—</p>

— Iiow. Hugh Brennan, J udge. Action at law to recover damages for false and fraudulent representations made by defendant in the sale of mining stock. Defendant filed an answer containing several divisions and to one of them plaintiff demurred upon various grounds and his demurrer was sustained. Thereupon defendant elected to stand upon the pleading so attacked and refused to plead further. This appeal is from the ruling upon the demurrer.—

— Hon. Hugh Brennan, Judge. Action at law to recover tbe value of certain stock in defendant corporation alleged to liave been converted by it. Trial to a jury. Verdict and judgment for plaintiff and defendant appeals. After judgment had been entered, and within a year thereafter, defendant filed a petition for a new trial based upon newly discovered evidence, and an alleged fraud by plaintiff in procuring the judgment.

— Hon. L. E. Eelxows, Judge. Suit in equity for separate maintenance. An application for temporary alimony and suit money was filed before tbe defendant answered and tbe court allowed the same in the sum of $75, and ordered that the same be paid within a certain time, and that such payment be a condition precedent to any defense in the case. The defendant appeals from the order as an entirety.

— Hon. L. E. Fel.ows, Judge. This is a controversy over the boundary line between plaintiff’s and defendant’s lands. The trial court held with defendant, and plaintiff appeals.—

— Hon. John F. Oliver, Judge. The facts are sufficiently stated in the opinion. At the close of the evidence, there was judgment in favor of plaintiff on a directed verdict, and the defendants appeal.—

<p>1 Indictment: motion to re-submit: resistance: estoppel. A defendant, who, before trial successfully resists a motion by .the State to set aside the indictment and re-submit the cause to the grand jury, because of alleged defects therein, cannot upon conviction rely on a denial of the motion as ground for reversal.</p> <p>2 Public officers: falsification of accounts: evidence: instruction. Proof of a corrupt purpose or motive is not necessary to support an indictment charging a public officer with falsifying the books of account of his office; that it was wilfully or intentionally done is sufficient; and an instruction that defendant could not be held liable for mere discrepancies arising from oversight, forgetfulness or incompetency, but that if they were knowingly and intentionally made he would be liable, was as favorable as he could rightfully expect.</p> <p>3 Same. The fact that accounts are entered in a book not required by law to be kept is not a defense to a prosecution for falsifying the accounts of a public office; if the same are kept in some book in the office from which settlement is to be made with the parties to whom the funds belong it is sufficient.</p> <p>4 Same: liability of deputy clerk. A deputy clerk of the court may be convicted of falsifying the accounts of a public office under Code, section 4910, irrespective of whether he is an officer within the legal definition of the term, as the statute is not restricted to public officers.</p>

— Hon. A. S. Blair, Judge. Action in mandamus to compel tbe defendants to appoint plaintiff city collector of the city of Independence. The petition was dismissed, and plaintiff appeals.—

— Hon. James A. How®, Judge. TheI defendant was the duly elected and qualified binder of tbe State of Iowa for two years beginning January 2, 1899, and the plaintiff claims that during that period be was overpaid by tbe State for work done in that capacity. Tbe petition in tbe first count alleges that be was paid for binding a large number of pamphlets and documents with covers, when these were in fact bound without covers.

<p>Appeal: reversal: rehearing in trial court. A plaintiff who has suffered a reversal of his decree on appeal, may, in the discretion of the trial court have the former submission set aside for the purpose of a further hearing, upon a proper showing to that end; but this rule does not authorize the court to permit him, without tendering a different issue, to offer additional evidence and again submit his case upon a different theory.</p>

— Hon. B. H. Miller, Judge. The trial court annulled and set aside a mulct tax assessment made by the county auditor of Linn county, and tbe county, through its board of supervisors, appeals.

<p>1 Continuance: surprise. Where an amendment is filed in the midst of a trial which raises an entirely new issue going directly to the merits of the controversy, the other party is entitled to a continuance upon a showing of surprise and want of time to meet the issue thus raised; nor should the court hold the party to a very strict and formal showing in this respect where the claim for time is made in apparent good faith.</p> <p>2 Instructions: recital of evidence: omission of material item. Where the court in its instructions undertakes to epitomize the various matters of evidence which the jury may take into consideration on a given question, the omission of any material item bearing thereon is prejudicial error.</p>

<p>Appeal from, .Wapello District Court.— Hon. E. W. Eichelberger, Judge.</p> <p>The opinion states the material facts.—</p>

<p>Appeal from Mills District Court.— Hon. O. D. Wheeler, Júdge.</p> <p>Action in equity for an injunction. A demurrer to the petition was sustained, and the plaintiffs appeal.—</p>

— Hon. A. B. Thoknell, Judge. Acting on the assumption that Shields Bros, were the owners as of date January 1, 1903, of a credit item consisting of a land contract, so called, in the amount and value of the sum of $9,650, which credit item had been withheld from assessment and taxation, the treasurer of Pottawattamie county entered on his books an assessment against said firm in said sum.

<p>1 Eminent domain: elements of damage: evidence. In a proceeding to condemn'property the measure of damages is the value of the property as it stood at the time of the appropriation; but this rule permits proof of all the varied elements of value which would properly and naturally be taken into consideration by the owner and a purchaser of ordinary prudence desiring 'the property.</p> <p>2 Sanie. The owner of property sought to be condemned may show its value for a special use for which it has been fitted, and that a particular line of business has been conducted therein for a long time, thus giving an increased value to the location.</p> <p>3 Same. Evidence of a general advance in price of property at the date of the condemnation in the immediate neighborhood of that sought to be condemned, although attributable to the very public improvement for the use of which the condemnation is being made, is admissible on the question of the owner’s damage.</p> <p>Deemer and Ladd, JJ., dissenting.</p> <p>4 Same. To admit evidence of sales of other property as bearing on the value of that sought to be condemned there must be a showing of similarity of character and situation, or, if dissimilar,. the difference should be made to appear that the jury may make proper allowance therefor in its consideration of the case.</p> <p>5 Instructions: refusal. A requested instruction supported neither by the pleadings nor evidence should be refused.</p>

<p>Appeal from Lirm District Oourt.— Hons. B. H. Miller. and J. H. Preston, Judges.</p> <p>Action brought at law by the beneficiary in a mutual benefit certificate issued by defendant, to recover the amount provided by the certificate to be paid on the death of the member. On motion of defendant, the case was transferred to the equity docket, and on the evidence introduced under the issue raised by defendant’s answer as to whether the insured died by suicide, within the terms of an excej)tion contained in the certificate, there was a judgment for the defendant. Plaintiff appeals.</p>

<p>Appeal from Jones District Qourt.— Hon. J. H. Preston, Judge.</p> <p>Action to recover from defendant a sum of money paid to him by way of compensation for his services as sheriff in excess of the amount to which he was entitled by law. Trial to the court without a jury, and judgment for defendant, from which the plaintiff appeals.—</p>

— LIon. W. S. With-row, Judge. The will of John L. Collins, with a codicil attached, was admitted to probate March 29, 1904, and, in so far as material to this controversy, was in words following: Eirst. I desire that all my just debts be paid including my funeral expenses. Second.

— Hon. Henry Bank, Jr., Judge. Defendant was iudicted for embezzling and converting to bis own use certain money belonging to Lazo Banj anin and Emile Bapaicb, wbicb bad come into bis bands by virtue of bis office as constable. Erom a judgment sentencing him to imprisonment in the penitentiary on a verdict of guilty, the defendant appeals.

<p>Appeal from Appanoose District Court.— Hon. C. W. Vermillion, Judge.</p> <p>Action at law to recover rents or royalties upon a mining'lease. Verdict and judgment for plaintiffs for $1,000 and tbe defendant appeals.—</p>

<p>1 Infants: exposure: who liable. One to whom an infant is confided by its parent for the purpose of exposure is within the contemplation of Code, section 4766, making it a crime to expose a child under six years of age with intent to abandon it; and the question of whether the child was so confided is one of fact for the jury.</p> <p>2 Intoxication as defense to .crime: burden of proof. A defendant cannot be convicted of a crime when at the time of its commission he was so under the influence of liquor as to be incapable of forming a criminal intent, but he has the burden of establishing such intoxication.</p> <p>3 Instructions: uncontroverted facts: prejudice. Where the jury is told that defendant is indicted for exposing a child under six years of age and is given the substance of the statute, prejudice cannot be predicated on a failure to specifically call attention to the age of the child, especially where no question as to its age was raised upon the trial.</p>

— Hon. Henry Bank, Jr., Judge. Application in probate by the appellees praying for an order for the distribution of certain funds in the hands of the executor of the estate of Edward Bernhard, deceased. The appellants claim the fund by virtue of the last will and testament of Edward Bernhard. An order of distribution was made, from which the plaintiffs appeal.—

<p>Appeal from Lucas District' Gourt.— Hon. C. W. Vermillion, Judge.</p> <p>Action to recover attorney’s fees. From a judgment for plaintiff, defendant appeals.—</p>

<p>Appeal from Des Moines District Oouri.— Hon. W. S. Withrow, Judge.</p> <p>Action to recover back tbe money paid on a life insurance policy under mistake as to tbe death of tbe insured. On trial without a jury the court rendered a judgment for defendants, from which plaintiffs appeal.—</p>

— Hon. James D. Smythe, Judge. Action - to partition certain real estate. Defendant Eliza D. Smith filed a demurrer to plaintiff’s petition in so far as plaintiffs, except Albert Frazer, claimed more than one-seventh of two-thirds of the real estate, and to the petition of said Frazer in so far as he claimed more than two-sevenths of two-thirds of the real estate.

<p>Appeal from Clay District Court.— IIon. A. D. Bailie, Judge.</p> <p>The opinion states the case.—</p>

— Hon. H. M. Towner, Judge. Action by plaintiff as receiver of a bank to recover an assessment of 50 per cent, on stock belonging to the estate of which defendant is administrator; the liability sought to he enforced being the double liability of stockholders in banks as provided by statute. Judgment for plaintiff on a directed verdict, from which defendant appeals.—

<p>Appeal from, Monroe District Qowrt. — ■ Hon. Robert Sloan, Judge.</p> <p>Appeal from an order taxing certain costs to the plaintiff.—</p>

- — -Hon. Byron W. Preston, Judge. Action for royalty alleged to be due under a mining lease. A demurrer to the petition was overruled, and, as defendants refused to plead over, judgment was entered as prayed. Defendants appeal.—

— IIon. B. W. Preston, Judge. Action upon two notes, and to foreclose a mortgage securing the same. Trial to the court, judgment and decree for plaintiff, and defendants appeal.—

— IIon. W. S. With-row, Judge. Action to have plaintiff’s one-third interest in certain real estate established and set off to her in partition. Decree for plaintiff, and defendants appeal.

— How. B. W. Preston, Judge. Suit to enjoin defendant from the removal of a gate. Decree was entered as- prayed, from which defendant appeals.—

<p>Appeal from Des Moines District Court. — 'Hon. W. S. Withrow, Judge.</p> <p>The opinion states the case.</p>

<p>Estoppel: evidence. In an action for partition brought by one devisee against another the evidence is held to estop plaintiff from asserting any interest in lands devised to defendant, by reason of a prior mutual release or waiver of such interest, even though they may not have fully understood just what interest each held in the property devised to the other.</p>

— Hon. James Gamble, Judge.. Action to recover for corn sold and delivered, for use of a farm and for damages thereto, and upon an account for hay. Defendant denied generally, and pleaded a counterclaim upon an account of forty-nine items covering the years 1888 to 1901, which account showed twenty-one items of credit.

— IIon. John T. Soott, Judge. Action at law to recover a balance due as commission earned in making a sale of real estate. There was a directed verdict, and judgment for costs in favor of defendant, and the plaintiff company appeals.

— Hon. Byron W. Preston, Judge. Suit in equity to subject real estate to tbe payment of a judgment. There was a decree for the plaintiff, from which the defendants appeal.—

— Hon. O. H. Kelley, Judge. Action to recover for trespass upon plaintiff’s real estate. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.—

— Hon. B. W. Preston, Judge. Action for damages for breach of warranty in the sale of a cow. Judgment for defendants upon a. directed verdict, and plaintiffs appeal.—

— Hon. W. B. Quarton, Judge. Suit at law to recover a commission for tbe sale of real estate. There was a trial to a jury, and a verdict and judgment for defendant, from which the plaintiff appeals.—

— Hon. J. H. Whitaker, Judge. Appeal from a judgment of the district court, reversing and setting aside an order made by the board of supervisors of Hamilton county for the establishment of a drainage district.—

— BEon. J. H. Apple-gate, Judge. Action to recover damages against a tenant of farm land for breach of stipulations of a lease with regard to keeping the premises in good condition; the complaint being that the tenant allowed them to be overrun with cockle burrs. Verdict and judgment for defendant. Plaintiff appeals.—

— Hon. J. H. Richards, Judge. Suit in equity to restrain the defendant from interfering with a tile drain extending from the plaintiff’s land onto his own land. There was a judgment for the plaintiff, from which the defendant appeals.—

<p>Railroads: crossing accident: contributory negligence: evidence. All that is required of a traveler in approaching a railway crossing is that he exercise ordinary care in looRmg and listening for approaching trains within a reasonable distance of the crossing, and when he stops and looks and listens it is for the jury to say whether he was in the exercise of ordinary care. Evidence held sufficient to take the case to the jury on the question of contributory negligence.</p>

— Hon. W. D. Evans, Judge. Suit to recover damages for false imprisonment. There was a trial to a jury and a verdict for the defendants, which was set aside on plaintiff’s motion, and the defendants appeal.—

— 'Hon. Clifford P. Smith, Judge. Action on a certificate of deposit issued by the Clay County Bank of Felton, Minn., to “ E. E. Secor, Cashier,” and by indorsement of “ E. E. Secor, Cashier,” transferred to the State Bank of Dows, and by that bank to plaintiff.

<p>Appeal from Marion District Court.— Hon. Jas. D. Gamble, Judge.</p> <p>Action for double value of a mare alleged to bave been injured through the defendant’s failure to maintain a sufiicient fence along its right of way. Judgment was entered as prayed. The defendant appeals.—</p>

— Hon. B. W. Preston, Judge. Action in equity to enjoin the maintenance of an alleged nuisance. The district court dismissed the bill, and plaintiff appeals.—

-— JIon. O. A. Byington, Judge. Garnishment proceedings, wherein plaintiff seeks to hold John Jones administrator of the estate of Mary L. Murphy, deceased, by reason of holding property or money belonging to Richard and Eugene Murphy, who are judgment debtors of plaintiff. The trial court discharged the garnishee, and plaintiff appeals.—

— Hon. J. W. Bollinger, Judge. Action at law to recover damages for personal injury. From a judgment for defendant upon a directed verdict, the plaintiff appeals.—

<p>1 Taxation of costs: certiorari proceedings. The rules for the taxation of costs on error and appeal apply to certiorari proceedings.</p> <p>2 Same. Ordinarily the costs on appeal will be taxed to the unsuccessful, party, but this is largely discretionary with the court, and the rule will not be followed where injustice will-result.</p> <p>3 Same. Although the plaintiff in certiorari brought to review a contempt proceeding is held to have been illegally adjudged guilty of contempt for violating an injunction, yet if his act which it was sought to restrain was in fact wrongful he should be taxed with the costs of the certiorari proceding.</p>