Volume 139 — Iowa Reports

<p>1 Direction of verdict: new trial. Where there is some evidence to support plaintiff’s contention the court should not direct a verdict for defendant; and refusal to set aside a verdict returned for plaintiff is not erroneous.</p> <p>2 Drainage: surface water: instructions. An instruction that the owner of higher land who discharges the surface water by means of tile drains upon lower land in greater quantities, or in a different manner than it would naturally flow is liable for the resulting damage, is not objectionable because failing to state that there must be a substantial increase in the flow, or its discharge materially different; since that rule has application where the drain is constructed along a natural water course. But in the instant case the rule requiring a substantial increase in flowor a material, change in the discharge was covered by a further instruction, that plaintiff’s damage would, be the difference in the fair market value of his farm immediately before the drain was constructed and its value immediately afterwards.</p> <p>3 Same: damages. Although the court’s instructions may have permitted the jury to apply an erroneous rule of damages for injury to plaintiff’s land by flooding the same with surface water, still where the jury by special finding applied the correct measure of damages no prejudice resulted.</p> <p>4 Drainage: exemption from liability for damage. A "defendant is not relieved from liability for wrongfully discharging surface water upon the land of another, because of the fact that the same first flows into and along a- highway ditch, which was neither constructed by plaintiff nor in the natural watercourse.</p>

— HoN. J. H. EotheocK, Judge. ActioN at law for the recovery of damages for breach of contract. Judgment for defendant upon directed verdict, and plaintiff appeals.—

— HoN. J. M.- Paekee., Judge. ActioN at law to recover damages on account of an assault and battery. Verdict and judgment for plaintiff, and defendant appeals.

— HoN. Jesse A. MilleR, Judge. ActioN in quo warranto to test the right of defendants to exercise the offices of directors of the independent school district of Des Moines. The petition was dismissed, and plaintiff appeals.—

— HoN. Jambs A. Howe, Judge. This is an action to determine the boundary line between two' parcels of land in the city of Des Moines. The trial court established the line claimed by plaintiff, and defendant appeals.—

— • HoN. J. M. Parker, Judge. AotioN at law to recover on two accident insurance policies. Trial was had to a jury, and there was a verdict and judgment for plaintiff. Defendant appeals.—

<p>1 Rape: corroborating evidence. The fact that the crime of rape has been committed by some one may be shown by the testimony of the prosecutrix alone; and corroborating evidence which tends to support her testimony in connecting the defendant with the commission of the crime is all that is required, the sufficiency of which is generally speaking a question for the jury. The corroborating evidence in the instant case is held sufficient to support a conviction.</p> <p>3 Same: flight of defendant. Where there is other evidence tending to connect defendant with the commission of the crime of rape, the flight of defendant may be considered as furnishing additional corroboration, although standing alone it would be insufficient for that purpose.</p> <p>3 Jurors: challenge foe cause. Where the opinion which a juror has formed and expressed is based solely upon the facts stated in a newspaper article which he has read concerning the alleged crime, and he states that his opinion is not unqualified but that he can lay it aside and determine the case wholly upon the evidence, the overruling of a challenge for cause is not erroneous, although defendant may not have exhausted his peremptory challenges.</p> <p>4 Corroboration:. instruction. Where the court instructs that mere opportunity to commit the crime of rape is not sufficient corroboration to connect a defendant with the commission of the offense, and that the evidence must be such as to identify and single out the defendant as the one who committed the crime, a further instruction that if the statements of defendant as to what occurred did not admit more than opportunity need not be given.</p> <p>5 Same: flight: evidence. Where a defendant accused of rape left the scene of the crime and remained away, though but for a short time, and stated that he left because he was afraid there might be trouble, there was sufficient evidence of flight to warrant a submission of > that question for consideration, as tending to corroborate the prosecutrix’s evidence of identity.</p> <p>6 Included offenses: instructions. Where the evidence shows that the defendant is either guilty or not guilty of the offense charged, no instruction regarding included offenses is required.</p> <p>7 Evidence: prejudice. Admission of wholly immaterial evidence which cannot result in prejudice is not erroneous.</p> <p>8 Opening statement: reading of indictment: statement of plea. Mere failure of the county attorney to read the indictment does not indicate that it was not read by the clerk as provided by statute. The purpose of the statute requiring its reading and a statement of the plea is to advise the jury of the issue to be tried, and in the absence of a contrary showing the indictment will be presumed to have been read, which, together with a statement of the plea by the court, is sufficient.</p> <p>9 Rape: sentence. Where the evidence upon which defendant was convicted of rape shows that he had several times previously -attempted to perpetrate the crime, a sentence of twenty years was not excessive.</p>

<p>Appeal from, Crawford District Court.— Hon. P. M. Pow-ees, Judge.</p> <p>Action to quiet title. Decree for defendants, from which plaintiff appeals.—</p>

<p>1 Deposit of school funds: insolvency: preferential claims. A deposit of school funds in a private bank is not wrongful in the sense that the banker becomes a trustee ex maleficio, so that upon insolvency a claim therefor against his estate will be given preference.</p> <p>2 Same. To give a deposit of school funds a trust character so that the-same may be established against the assets of an insolvent bank as a preferred claim, it must appear that the deposit has been preserved among the assets; and while it is not necessary to identify the precise money deposited, still it must be shown that the assets are greater on account of the deposit and may be withdrawn without prejudice to the other creditors.</p>

<p>Appeal from Audubon District Court.— Hon. W. R. Gbeen, Judge.</p> <p>A demuRRer to the petition was sustained, from which ruling the plaintiff appeals.—</p>

<p>Appeal from Lee District Court.— How. Ií. BaNK, Judge.</p> <p>Appeal by plaintiff from order discharging garnishee of defendant.—</p>

<p>Highways: duty to repair: liability of supervisors. The duty of repairing highways is not imposed upon the county supervisors and they are not liable to one injured because of the alleged failure to repair a defective condition therein; their statutory duties are chiefly discretionary, a failure to exercise which is followed by no liability to a private individual, unless the result of malice or corruption.</p>

<p>1 Corporations: agreement to purchase property: record evidence. The resolution of a corporation to the effect that the company requires a manager; that its president is the only available person for the position and is willing to. accept provided he can dispose of his private business; that in case he is so employed and does not sell his business 4o another the company will purchase the same at a specified sum at any time within a given date, is binding upon the corporation in case of acceptance by the manager; and to complete a sale of the business and transfer title to the property it is not necessary for the corporation records to show acceptance by it of his business and property.</p> <p>2 Same: proof of agreement by parol: evidence. Parol evidence is admissible to show that formal action was in fact taken by a corporation respecting a (matter, although no record exists in the minutes of its meetings; and in the instant case the evidence is held sufficient to show that the plaintiff corporation affirmed its contract of purchase of defendant’s business, stock and fixtures, after he had accepted its proposition of employment as manager and the purchase of his business.</p> <p>3 Corporations: contracts: rescission: ultra vires. A corporation organized to engage in the wholesale drug business and to handle and sell drugs, medicines and such other goods as are incident to the business, to buy, hold and sell real estate and such personal property as it may deem advisable, has authority to buy a retail stock of goods and fixtures with a view of adding the same to its wholesale stock; and where it has in good faith consummated a purchase and the business of the seller has been destroyed in consequence it cannot rescind the contract on the ground that it was ultra vires.</p> <p>4 Same: dealings between stockholders and corporation: trust relation. One who in good faith disposes of his property to a corporation at an agreed price for stock in the concern for the purpose of putting himself in a position, at the request of the corporation, to accept the management of the concern does not occupy a position of trust or confidence, although a promoter and officer of the company: and a transfer of the stock to him according to the agreement cannot be annulled by the corporation though disadvantageous to it.</p>

— HoN. F. B. GayNob, Judge. This action was originally brought in equity, by stock-' holders in the defendant Sheldon State Bank, located at Sheldon, O’Brien county, to wind up and settle the business and affairs of said bank, alleged to be insolvent. On application of the plaintiffs, B. W. Ady was appointed receiver, and given power usual in such cases.

— HoN. J. II. Rothrock, Judge. ActioN at law to recover damages for the death of Edward W. Lindquist, deceased, dne as is alleged to defendant’s failure to properly construct and guard its machinery. Trial to a jury. Directed verdict for defendant, and plaintiff appeals.

— Hon. W. D. Evans, Judge. Actioh in equity, in which plaintiff seeks to have set off to her, as.the widow of Asher Warner, a distributive share in certain lands described, which lands were conveyed by her said husband, acting alone, during his lifetime. Plaintiff was denied the relief prayed by her, and she appeals.—

— HoN. H. M. TowNer, Judge. By leave of the lower court this action was instituted to determine the right of defendants to hold office as councilmen of the city of Bedford. A demurrer to the petition was sustained, and from judgment against-the plaintiff, electing to stand upon the petition, this appeal is prosecuted.—

<p>Appeal from Johnson District Court.— How. R. P. Howell, Judge.</p> <p>ActioN upon a promissory note. Judgment for defendants and plaintiff appeals.—</p>

— Hon. W. H. McHenry, Judge. Action in equity to redeem from a tax sale of real property. Pending tbe action in the court below the plaintiff association was adjudged insolvent, and J. E. Mershon, receiver, was substituted as plaintiff. The defendant Moore is the holder of the tax deed. There was a decree in favor of plaintiff, and the defendant appeals.—

— Hon. J. H. Peeston, Judge. Action on a certificate of insurance in the defendant association in favor of plaintiff as beneficiary on the life of her husband, Prank Knapp. Verdict and judgment for plaintiff. Defendant appeals. — ■

— IdoN. Jesse A. Miller, Judge. ActioN at law to recover - upon a promissory note. There was a directed verdict and judgment in favor of defendant, and plaintiff appeals.—

— HoN. W. E. Gbeen, Judge. ActioN to recover money alleged to be due under a contract for the construction ■ of a ditch. There was a verdict for the plaintiffs, and, from the judgment thereon, defendant appeals.—

— HoN. Z. A. Church, Judge. Suit in equity to enjoin a nuisance caused, as is alleged, by tbe negligent construction of a railway embankment, whereby plaintiff’s land was flooded. Damages were also claimed for injuries done the land. By an amendment to the petition plaintiffs sought to have their right to an under crossing through defendants’ right of way adjudicated.

— HoN. M. P. Smith, Judge. On May 5, 1905, J. J. Snouffer, Jr., procured a loan of $15,000 from the 'Citizens National Bank of Cedar Rapids, and to secure tbe payment thereof procured his parents, J. J. and Ann J. Snouffer, to convey to J. R. Amidon, as trustee for the bank, real property.

— HoN. R. P. Howell, Judge. ON December 3, 1903, Hanora Murphy signed a deed conveying twenty-five acres of her eighty-five-acre farm to Hanora Conway, and another deed conveying the remaining sixty acres to Johanna Rock, Bridget Duffy, and W. M. Slater. The grantees were her daughters, except Slater, who was a grandson.

<p>Appeal from Webster District Court. — ; Hon. K. M. Weight, J udge.</p> <p>Action on a certificate of insurance resulted in a verdict and judgment for plaintiff. The defendant appeals.—</p>

<p>Appeal from Lee District\ Court.— Host. H. Bank Jr. Judge.</p> <p>Appeal by plaintiff from order discharging garnishee of defendant.—</p>

— Hon. E. O. Ellison, Judge. Suit upon a promissory note. There was a directed verdict for the plaintiff, and from a judgment thereon the defendants appeal.—

— HoN. H. M. TowNEr, Judge. IN this special proceeding for the establishment of lost corners a commissioner was appointed who established the corners in dispute, and his report was confirmed by the court after oral evidence on behalf of each party had been received. From this judgment the defendants appeal. —

<p>Boundaries: location of corners: evidence. In a proceeding to establish a lost section corner, the evidence that a certain point had been commonly known and recognized by the adjoining owners and road officers, and marks and monuments corroborating the theory that the same was the corner designated by the original survey, is held to control over the ex parte statement of commissioners, who ignored the same and proceeded to locate a corner from a survey of their own by means and measurements from other corners claimed to have been recognized and established.</p>

<p>Appeal from Mahaska District Court.— Hon. K. E. Wil-cocksoN, Judge.</p> <p>The plaintiff appeals from a ruling by which a demurrer to his petition was sustained. — ■</p>

<p>Appeal from Polk District Court.— HoN. William; II. Mc-TIeNey, Judge.</p> <p>Suit to recover for personal injuries.' There was a directed verdict for the defendant, and from a judgment thereon the plaintiff appeals.</p>

Z. A. Church, Judge. The plaintiff presented a claim against the estate of James Outtrim for personal services rendered in the life of the deceased. The claim having been allowed in the sum of $1,255, the executrix appeals.—

— HoN. G. W. Burn-ham:, Judge. Suit on a fire insurance policy. There was a directed verdict for the plaintiff, and from a judgment thereon the defendant appeals.—

<p>Certiorari to Dubuque District Court.— HoN. Robeet Bon-soN, Judge.</p> <p>The opinion states the material facts.</p>

<p>Appeals from Linn District Court. — Host. E. 0. Ei.li-soN, Judge.</p> <p>These are two actions to set aside the will of John H. Brown, deceased. One is an appeal from the action of the district court sitting as a court of probate in admitting the will to probate, and the other an action in equity to set aside the probate of the will. In each action the will was sustained and contestants and objectors appeal.—</p>

<p>1 Wills: mental capacity: evidence. Mere mental weakness is not sufficient to' render a testator incapable of making a will so long as he retains a reasonable comprehension of the act he is engaged in, the extent of his property and the claims of relatives and friends entitled to share in his bounty. Evidence held insufficient to show a condition of mind incapacitated to make a will.</p> <p>2 Exclusion of evidence. Where apparently immaterial evidence is offered with no explanation or offer to show a state of facts which would make it relevant, its exclusion is not erroneous.</p> <p>3 Same. Rejection of evidence as to testator’s condition of mind because not confined to the time at or about when the will was executed was not an abuse of discretion; especially where there were a number of other witnesses possessing equal knowledge on the subject who testified to his mental condition.</p> <p>4 Same. The rejection of evidence which could be of no advantage to the party offering it is not a matter of which he can complain.</p> <p>5 Communications with one since deceased. The statute prohibiting personal communications between a witness and one since deceased relates to the competency of the witness and not the testimony; so that the statute cannot be invoked in aid of an objection that the evidence was incompetent.</p> <p>6 Testamentary capacity: refusal of instructions. Where the instructions given by the court were a reasonably sufficient statement of the law on the subject of testamentary capacity, a refusal of requested instructions on the same subject was proper, even though they may have correctly stated the law. The court’s instructions are held sufficient.</p> <p>7 Same. It is not essential to testamentary capacity that the testator have a complete and exhaustive knowedge of all his property; it. is sufficient if he has capacity enough to comprehend in a general way the nature and extent of his estate, the objects of his bounty, and the character of his act.</p> <p>8 Undue influence: burden of proof. The burden of showing undue influence in the execution of -a will is upon the party alleging it, and this burden is not shifted by a simple showing that the person who drew it was the son-in-law of the testator, for whom he had respect and confidence, and that members of his family received valuable legacies; .there must be a showing in some manner that the testator relied upon the scrivener for guidance and that his confidence was abused.</p>

<p>1 Negotiable instruments: original and renewal notes: actions. The giving of a renewal note does not effect a discharge of either the makers or indorsers of the original obligation in the absence of an agreement therefor, if for any reason not chargeable to the wrong or fraud of the holder the new note proves to be invalid; and where a cause of action is stated in one count on the renewal note and in another on the original obligation, which is proper, an instruction that ignores a right of recovery on the latter as the consideration for which the former was given is erroneous.</p> <p>3 Same: consideration: pleadings. Want of consideration as a defense to a suit on a promissory note must be pleaded; a mere general denial does not raise that issue.</p>

<p>Appeal from Blachhawlc District Court.— HoN. EeaNkliN C. Platt, Judge.</p> <p>ActioN for damages iu consequence of alleged malpractice resulted in a verdict and judgment of $5,000. The defendant appeals.</p>

<p>1 School districts: extension of boundaries: statutes. The act of the 19th General Assembly providing that all the territory within an incorporated city, whether included in the original incorporation or afterwards attached, shall be a part of the independent district or districts of the city, is not given retroactive effect when applied to such part of an outside district as was brought within the city prior to the enactment of the statute; the enlargement of the district being operative only ■ from the date of the statute.</p> <p>2 Same: constitutional law: vested rights. School districts like other municipal corporations are subjects of legislative will; and an act providing that all the territory of an incorporated city shall constitute an independent school district or districts is not unconstitutional as affecting vested rights, although severing an existing district and taking in a portion of its territory.</p>

— HoN. Wm, HutchiN-SON, Judge. Action in equity for partnership accounting. The trial court found the defendant indebted to the plaintiff in the sum of $3,554.60, and entered a decree accordingly. Both parties appeal; but the plaintiff, having first perfected his appeal, will be styled appellant in this opinion.

— Hon. 0. G. Lee, Judge. Action to recover for personal injuries received from a fall upon a sidewalk of tbe town of Latimer. Verdict and judgment for plaintiff, and defendant appeals.—

<p>1 Appeal: questions not raised below : review. A question not going to the jurisdiction of the court and in no manner suggested in the trial court cannot be urged on appeal; as where a case is tried on the theory that a party represented his coparty also, in a transaction in which certain alleged false statements are claimed to have been made, the question of the liability of the coparty for the false statements cannot be first raised on appeal.</p> <p>2 False representations to tenant: measure of damages: instruction. The measure of damages to a tenant for false representations concerning leased premises, is the difference in value of the use of the land as it was represented, subject to the conditions imposed by the lease, and their value as they actually were, subject to like conditions; and an instruction which fairly embodies this rule is correct.</p> <p>3 Same. A reference in the instruction concerning the value of the use of the farm “ burdened ” with the rent for the time occupied, is held not misleading, as the term “ burdened ” indicated simply the obligation which the tenant was bound to perform: nor was the instruction open to the objection that it in effect ' directed the jury to find for defendant, when read as a whole.</p> <p>4 Appeal: argument: presumption. The argument on appeal that the claim sued on lacks the essential elements of honesty .and integrity will not be considered on appeal, as this is a question involved in the finding of the jury: nor will the court take judicial notice of the fact, as claimed in argument, that a landlord does not stand on an equal footing with his tenant before a jury.</p>

<p>Appeal from Sioux District Court.— HoN. Wm. Hutchinson, Judge.</p> <p>ActioN at law to recover upon promissory notes given for tbe price of a threshing machine. Answer admitting the making of the notes and pleading payment, and counterclaim for damages or breach of warranty. Verdict and judgment for defendant on his counterclaim, and plaintiff appeals.—</p>

— HoN. Z. A. Church, Judge. ActioN to recover a commission for the sale of real estate. Verdict and judgment for plaintiff, from which defendant appeals.

— IIoN. 0. A. Bying-toN, Judge. ActioN at law to recover damages for a personal injury. . Trial was had to a jury resulting in a verdict and judgment for plaintiff. The .defendant appeals.—

— HoN. James A. Howe, Judge. This is an action to fix and settle the boundaries of plaintiff’s and defendant’s properties. The trial court found in favor of plaintiff’s contention, and defendant appeals.—

— Hon. Hugh Brennan, Judge. Suit to recover damages for a personal injury. Trial to a jury, and verdict and judgment for plaintiff. The de* fendant appeals.—

— Hon. L. E. Fee-lows,’ Judge. ActioN to recover damages on account of injuries received by plaintiff by reason of coming in contact with a loosened and fallen wire of defendant telephone company while driving in a public highway. The defendant denied plaintiff’s allegation of negligence, and at the conclusion of all the evidence defendant’s motion for,a directed verdict in its favor was sustained, and plaintiff appeals.—

<p>1 Implied contracts: breach: damages. A pleading to the effect that a tenant in sole possession and occupancy of leased premises, to whom was exhibited by both parties a contract between the landlord and a contractor providing for the making of repairs to the property within a stipulated time, and who consented to be disturbed in his possession on the understanding that the repairs would be made within a specified time, states a cause of action on an implied contract, and the tenant may recover of the contractor his damages from a failure to perform the work within the time.</p> <p>■ 3 Contracts: variance by parol. While ordinarily a contract.made for the benefit of a third person may be enforced, still where a written contract creates liability to a certain person and no one else, parol evidence is not admissible to show that such lia-.j bility was to another.</p>

<p>Appeal from Adams District Court.— HoN. H. K. EvaNS, Judge.</p> <p>INTERVENTION to have certain claims allowed against the receiver of a defunct bank. The petition was dismissed, and claimant appeals.—</p>

— IIoN. J. M. Parker, Judge. Suit on a promissory note. Trial to a jury, and verdict and judgment for the defendant. The plaintiff appeals.

— HoN. Z. A. Church, Judge. These two eases tried separately in the lower court are submitted together; the records in the two cases and the questions involved being to a considerable extent identical. In each case the plaintiff presented a claim in behalf of her ward against the estate of E. II. McCutchen, deceased, and asked that such claim, if established, be made a preferred claim as against the other creditors of the estate.

<p>1 Master and servant: negligence: defective appliances. It-is the duty of an employer to exercise réásonablé care in furnishing safe and suitable machinery and appliances for employes to work with. In the instant case the jury may properly have found defendant negligent in failing to provide one of the several known safety appliances in connection with the operation of saws.</p> <p>2 Same: assumption of risk. An employé, in undertaking to do a particular kind of work, assumes the risk ordinárily incident thereto; but he does not assume the risk of using tools or machines the danger of which is not known to him and which may not be ascertained by the exercise of ordinary diligence: so that a carpenter, unaccustomed to the operation of saws by machinery, cannot be said' as a matter of law to have assumed the risk incident to the danger arising'from the fact that the teeth of the saw were liable to catch in the lumber and re- ■ verse its motion.</p> <p>3 Same: duty to warn. Where an employer is not justified in assuming that the employé' appreciated the risk it becomes his duty to warn him of the danger; but where he has good reason to believe that the employé understands the risk, failure to warn is not negligence.</p> <p>4 Same: instructions. Where the jury finds the employer negligent in failing to warn the employé of the danger, a finding that the employé did not assume the risk is not required; since the finding of the employer’s negligence involved a finding that the employé was not aware of the danger.</p>

— HoN. Z. A. Church, Judge. This is an appeal from an order of Hon. Z. A. Church, Judge, upon an application of defendant and appellant to substitute certain exhibits introduced in the main case bearing a like title to this one, which was an action for a divorce.

<p>Appeal from Poweshiek District Court.— Hon. Byron W, Preston, Judge.</p> <p>Accident on policy of accident insurance. There was a verdict for the plaintiff and from judgment thereon defendant appeals.—</p>

— HoN. Henby Bank, Jb., Judge. Action at law, aided by attachment, to recover farm rent. The defendant counterclaimed, and on the trial there was a verdict in his favor, on which judgment was entered. Plaintiff appeals.—

— How. A. D. Bailie, Judge. AotioN in ejectment for the possession of a strip of land and damages for its wrongful detention resulted in a verdict and judgment for the plaintiffs. The defendants appeal.—

Marshall District Court.— HoN. J. M. PARKER, Judge. ActioN to recover damages for personal injuries received by reason of the negligence of the defendant in operating an automobile. On trial to a jury there was a verdict for plaintiff, and from judgment thereon defendant appeals.—

<p>1 Sodomy: indictment: sufficiency. The statute defining sodomy is in accord with the generally accepted definition of the offense; and is not confined to the act of coition between the sexes but-may be committed between persons of the same sex; and an indictment charging the crime substantially in the language of the statute and stating the manner of its commission is sufficient.</p> <p>2 Misconduct of juror. That a juror during a recess in the trial visited the place of the alleged crime of sodomy is not ground for reversing the judgment of conviction, when it is not shown that he did so for an improper purpose, or that he committed an improper act while there.</p> <p>3 Sodomy: punishment. The statute prescribing punishment for sodomy provides the penalty for the offense defined by Code Supp., section 4937a.</p> <p>4 Sodomy: proof of penetration. Proof of actual penetration is essential to the crime of sodomy as in cases of rape, but it may ■ be shown by circumstantial evidence.</p>

<p>1 Criminal Law: evidence: Res gesta. The declaration of one injured in an affray, as to the manner of the injury, made so near the time and place and so connected with the transaction as to be a spontaneous utterance, affording a reasonable explanation of what happened, is admissible as part of the res gesta.</p> <p>2 Same: murder: self-defense: admissions: evidence. Although defendant, under a plea of self-defense to a charge of murder, admitted that he struck deceased with a deadly weapon at the time and place as alleged, causing death, still it was competent to show the character of the instrument and the nature of the wound, as bearing upon the question of whether more force than necessary was used in repelling the attack; and also as bearing on the question of intent o.r motive.</p> <p>3 Murder: self-defense: evidence. Evidence reviewed and held insufficient to establish a plea of self-defense to the charge of murder.</p>

— How. John F. Olivee, Judge; ActioN to quiet title. A demurrer to plaintiff’s petition being sustained, judgment was rendered for the defendant, from which plaintiff appeals.

— Host. J. F. Clyde, Judge. Suit in equity asking a decree establishing an easement over the defendant’s land,, and praying that he be restrained from filling a drainage ditch. There was a decree for the plaintiffs. The defendant appeals.—

<p>Appeal from Butter District Court. — Host. C. H. Kelley, Judge.</p> <p>PeoceediNgs supplemental to a decree of divorce. The opinion states the case. The appeal is by defendant.—</p>

— Hon. W. S. Withrow, Judge. Suit to recover damages caused by fire. There was a verdict and judgment for the plaintiff. The defendant appeals.—

— HoN. HeNRY BaNK, JR., Judge. James Tebbs died testate August 9, 1899, without is-ue, leaving him surviving his widow, Sarah A. Tebbs, to whom he left all his property, “ the same to be hers absolutely in fee simple to be^ owned and disposed of by her as she pleases without let or hindrance,” with a second clause in words following: “ If it should be that my brother Joseph Tebbs shall become needy and in destitute circumstances, it is my wish and request that my said wife…

— HoN. A. P. Barker, Judge. Action at law to recover damages for breach of warranty in the sale of roofing material, and for failure to maintain a roof as agreed. Defendant averred that whatever damage plaintiff suffered was due to its own fault, pleaded that it complied with its warranty, and also a settlement of all matters in litigation. On these issues the case was tried to a jury resulting in a verdict and judgment for plaintiff, and defendant appeals.—

— HoN. L. E. Fellows, J udge. This is a contest between the appellant as trustee of the bankrupt estate of John Helming and judgment creditors of said Helming.—

— HoN. O. A. Bying-toN, Judge. The plaintiff Herbert is a carpenter and builder, who made repairs upon a building owned by defendants, and brings an action in equity to foreclose a lien for the value of such services. W. F. Leinbaugh brings separate action against defendants to enforce his claim to a lien for mate-terials alleged to have been furnished for the repairs above-mentioned.

— Hon. W. H. Mc-Henry, Judge. A certificate of life insurance was issued by defendant on the life of Thomas D. Connell, October 7, 1905. He died October 24, 1906, and in this action a beneficiary demands* the indemnity stipulated. A verdict was directed for defendant, and judgment entered accordingly. The plaintiff appeals.—

— IIoN. A. N. Hob-SON, Judge. Action to recover commission for sale of real property under an agency. The issues raised by general ’and specific denial of the allegations of plaintiff’s petition were submitted to a jury, which returned a verdict for the defendant. Prom judgment on this verdict, plaintiff appeals.—

— How. W. D. Evans, Judge. Defendant appeals from a conviction for assault with intent to commit great bodily injury, under which he was sentenced to pay a fine of $500, and, in default, stand committed to the county jail until such fine should be paid.—

<p>Appeal from Cedar District Court.— tloN. F. O. EllisoN, Judge.</p> <p>The opinion states the material facts.—</p>

<p>1 Intoxicating liquors: sales by druggist: use as a beverage: evidence. Twelve sales of liquor by a druggist to one person in two months, where there was evidence tending to show that such person was an habitual user of liquor, is sufficient to show that the same was purchased as a beverage.</p> <p>2 Same: requests: statutory requirements. The statutory requirements must be complied with by a druggist in the sale of liquor; and a failure to give the true name and residence of the person for whose use the liquor is purchased cannot be excused on the ground of carelessness.</p> <p>3 Same. When a purchaser of liquor lives in a town or village the statement in the request that he resides in the county is not sufficiently specific to comply with the statute.</p> <p>4 'Same: injunction. Where it appears that sales of liquor were frequently made by a druggist in violation of the law prior to the bringing of an action to enjoin the same, an injunction should not be refused on the ground that no illegal sales have been made' since the action was commenced and probably will not be in the future.</p>

<p>Appeal from Fayette District Court.— Host. L. E. Fellows, Judge.</p> <p>DEFENDANT was convicted of an assault with intent to commit murder, and he appeals.—</p>

<p>1 Taxation: soldier's exemption : claim of. The filing of a petition with a hoard of review., for a soldier's exemption from taxation, as provided in section 1304, Code Supp. 1902, is sufficient to show thatyhe claim of exemption was made before the board, in the absence of proper objection thereto in the district court.</p> <p>2 Same: appeal: jurisdiction. It is not essential in all cases that a transcript of the proceedings before a board of review be filed in the district court to confer jurisdiction; the necessary-jurisdictional facts may be established by the filing of a petition setting forth the complaint before the board, its decision thereon, and the fact of an appeal.</p> <p>3 Same: exemption: property valuation: burden of proof. It is not incumbent upon a soldier claiming the statutory exemption from taxation to show in the first instance that his wife is not possessed of $5000 worth of property; a prima facie case for exemption is made by showing that his own property is not of that value, and the burden is then on the municipality to show that the wife’s property exceeds the statutory limit.</p> <p>4 Same: valuation of property. The income derived from the reservation of a life estate in lands conveyed by a soldier is not an annuity, and should not be considered in estimating the value of his property for the purpose of determining his right to the statutory exemption from taxation; but the value of the life estate so reserved should be ascertained and considered at its .actual worth for that purpose.</p> <p>5 Same. The valuation of a soldier’s property for the purpose of determining his right of exemption from taxation is not to be determined from the assessment roll but from its actual value.</p> <p>6 Same. The soldier’s exemption from taxation cannot be defeated by a showing of joint ownership by husband and wife of property exceeding the statutory limit, it is the individual ownership in excess of the limit which defeats the exemption.</p> <p>7 Same: life estate. The reservation of a life estate in a convey-anee of lands, owned by a soldier, to himself and wife during their natural lives, the wife joining for the purpose only of releasing her dower interest, does not operate to invest the wife with any greater interest in the reservation than she had in the property before the conveyance, but the life estate so reserved is the property of the husband, and should be so treated in estimating the value of his entire property with respect to his right of exemption from taxation.</p>

— Hon. Jesse A. Mil-lee, Judge. ActioN at law for tbe recovery of rent alleged to be due for damages for injury to tbe leased premises. Verdict and judgment for defendant, and tbe plaintiff appeals.—

— HoN. D. E. Coyle, Judge. AotioN at law upon a promissory note. There was a directed verdict and judgment for plaintiff, and defendants appeal.—

<p>Appeal from Buena Yista District Court.— Hon. A. D. Bailie, Judge.</p> <p>Actiow in equity to establish the plaintiff’s rights in certain lands, and for partition. Decree as prayed, and defendants, except Buena Vista county, appeal.—</p>

A. S. Blaib,, Judge. Suit to recover damages for an assault. Trial and verdict; and judgment for the plaintiff. The defendant appeals.—

— IioN. ByroN W. Pee-stoN, Judge. This is a contested election case. At tbe general election held in Mahaska county, November 6, 1906, the respective parties to this action were opposing candidates for the office of county auditor. In making the official canvass of the votes cast, the county board found that appellee, Doak, had received 2,948 votes, and the appellant, Briggs, 2,951 votes — a majority of 9. A certificate of election was issued to Briggs accordingly.

— How. Z. A. Church, Judge. ActioN by the plaintiff to recover damages for the alienation of his wife’s affections. There was a verdict and judgment for the plaintiff, from which the defendant appeals.—

— IIoN. ActioN in equity originally brought by plaintiff, as administrator of the estate of Mathias Hauer, to recover on a beneficiary certificate issued by the Grand Lodge of the Ancient Order of United Workmen of Iowa to his intestate. The beneficiary named in the certificate was Hannah Hauer, conceded to have been at the time of the issuance thereof the wife of said Mathias Hauer.

— HoN O. A. Byington, Judge. Action to recover damages on account of delay in the shipment of live stock. At the close of the evidence the court instructed the jury that plaintiffs were not entitled to recover except for the value of one animal alleged to have been injured, and verdict was returned accordingly. From the judgment rendered on said verdict, plaintiffs appeal.

— Hon. H. M. Towner, J udge. Action for damages for personal injuries sustained by plaintiff by reason of falling into an excavation in one of the streets of the defendant. Judgment for plaintiff for $J50, and the defendant appeals.—

— HoN. E. M. Powers, Judge. ActioN at law to recover delinquent taxes. The defendant filed a motion asking that the petition be made more specific which motion was sustained, and, the plaintiff electing to stand on his petition, it was dismissed, and judgment rendered against him for costs. He appeals.—

<p>1 Railroads: crossing accident: contributory negligence: evidence. While as a general rule the questions of negligence and contributory negligence are to be determined by the jury from all the circumstances disclosed, still where one on approaching a railway crossing, open to view for a considerable distance, is so clearly negligent in failing to use his senses to ascertain if a train is within a distance threatening collision that reasonable minds cannot differ on the subject, his. negligence becomes a question of law with which the jury has no concern. Evidence held to conclusively establish contributory negligence.</p> <p>3 Same: “ last clear chance.” Where there was no evidence tending to show that the engineer of a train on approaching a highway crossing discovered, or ought to have discovered, the danger of colliding with plaintiff in time to have stopped his train, the doctrine of the “ last clear chance ” has no application.</p> <p>3 Contributory negligence. Where a plaintiff is precluded by his contributory negligence from recovering for his own injuries received while crossing a railway track, he cannot recover for injury of his team and wagon.</p>

— HoN. F. 0. Ellison, Judge. PeosecutioN for abandonment and desertion by defendant of bis wife and child. There was a verdict against defendant, and he was sentenced to confinement in the reformatory at Anamosa for one year. From this sentence he appeals.—

— HoN. F. R. Gay-Noe, Judge. ActioN at law to recover damages for injuries done by-defendant’s dog. Trial to a jury. Verdict and judgment for defendant, and plaintiff appeals.—

<p>Appeal from Crawford District Court.— Hon. Z. A. Church, Judge.</p> <p>Action for damages for the conversion of certain promissory notes. On a trial to the court without a jury judgment was rendered for plaintiff, and defendants appeal.</p>

<p>Sheriffs: mileage fees: recovery of from county. At the expiration of a sheriff’s term of office, all uncollected fees charged by him for mileage in the service of process during his incumbency, which are subsequently received from litigants by the clerk, belong to the county and cannot be recovered by the sheriff.</p>

— HoN. David Mould, Judge. Action for damages for personal injuries resulting from a fall upon a defective sidewalk. Judgment for plaintiff in the sum of $550, and defendant appeals. —

— IIoN. ¥m. Hutchinson, Judge. ActioN to recover balance of account in the sum of $500. In connection with a general denial the’ defendant alleges the tender of and acceptance by plaintiffs of a sum in full settlement of the account, of which the $500 claimed formed a part, and also alleged by way of counterclaim an indebtedness of plaintiffs to defendants in the sum of $500 by way of damages.

— Hon. H. K. Evans, Judge. Action to recover damages for the vacation of a street and alley upon which plaintiff’s property abutted. Defendant demurred to the petition, and its demurrer was sustained. Plaintiff appeals.

— HoN. D. M. Ah-dersoN, Judge. This is an action to recover damages for an injury to a racing horse shipped over the defendant’s road. There was a verdict and judgment for the plaintiff, from which the defendant appeals.—

<p>1 Municipal corporations: public ways: vacation: re-establishment. When a public alley has been regularly vacated by a city it has no jurisdiction to order that the same shall be paved and to levy special assessments to pay the cost thereof, unless there has been a re-establishment of the same as a public way, either by ordinance or resolution of the council, or by prescription; continued use by the public and subsequent proceedings ordering its pavement are not sufficient to effect a rededication.</p> <p>2 Same: special assessments: estoppel. Where a city council is without jurisdiction to order the paving of a public way its act in so doing is void ab initio; and an abutting property owner is not estopped to assert the invalidity of a special assessment to meet the cost of the same, because a resident of the city and with knowledge of proceedings ordering the improvement he made no objection until the attempted assessment.</p> <p>3 Same: In a proceeding involving the authority of a city to levy a special assessment to pay the cost of paving an alley which had been legally vacated, the city cannot urge the invalidity of the ordinance on the ground that a street railway company had acquired a prior right to occupy the alley and hence its rights were interfered with by the vacation, where the railway company was not in court asserting any right inconsistent with the ordinance.</p>

District Court. — HoN. D. M. ANDERSON, Judge. Action on a bond of indemnity against assessment of the mulct tax. Judgment for plaintiff, and the defendants appeal.

<p>1 Replevin: nature of action. In an action by a divorced wife against her husband for the replevin of household goods on the ground of absolute ownership, the answer alleging that the property was acquired by them jointly, and that the right of the wife to the property was adjudicated in the divorce action, raises a law issue and the cause should not be transferred to equity.</p> <p>2 Same: prior adjudication. Where a decree of divorce and alimony does not undertake to dispose of all the articles of personal property in possession of the parties at the time of separation, it is not conclusive of the right of the wife to possession of such articles as she may be able to show belong to her, either by descent, gift or purchase from her separate means, and she may maintain replevin against her divorced husband for their possession, which should be awarded in a law action.</p>

<p>Appeal from Woodbury District Court. — HoN. David Mould, Judge.</p> <p>ActioN to recover damages for personal injuries received by plaintiff while in defendant’s employ, alleged to have been the result of defendant’s negligence. There was a verdict for the defendant, and plaintiff appeals.</p>

— HoN. David Mould, Judge. ActioN to recover damages for breach of a contract • to teach a school in the defendant district. The defendant answered, and to this answer plaintiff demurred. ' Her demurrer was sustained, and defendant appeals.

— HoN. W. Gr. CLEMENTS, Judge. ActioN to recover damages for a nuisance created by defendant in discharging its sewage in proximity to .plaintiff’s land. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

<p>1 Brokers: implied agreement to pay commission. Where the owner of premises knew, or is charged with knowledge, that a broker is negotiating a sale of the same for his benefit and permits him to go on and complete the transaction, there is an implied promise to pay for the service; but in the instant cáse the evidence is held insufficient to support a judgment for plaintiff notwithstanding the verdict for defendant.</p> <p>2 Same: evidence. Where there is an implied agreement to pay a broker for his services, evidence of the expectation of either party in regard thereto is immaterial.</p> <p>3 Same: conclusion. • Refusal to permit the broker to testify to a conversation with defendant relative to an offer for her property is held erroneous, but without prejudice, as the conversation inquired about had been fully detailed.</p>

<p>1 Actions: husband and wife: limitations. Both at common law and under the Revision of i860, a wife had a right of action against her husband for a debt due her, and the statute of limitations began to run against same at the date of its maturity.</p> <p>2 Same. No person has* a vested right in a particular remedy, provided an adequate remedy be given; so that if a wife had no right of action against her husband for her separate property prior to the Code of 1873, but was confined to presenting her claim against his estate upon his death or insolvency, such right of action became complete with the adoption of that Code and the statute of limitations as against an existing claim was then set in motion.</p> <p>3 Same: trusts. An express trust cannot be established by the production of a written instrument which purports to create merely the relation of debtor and creditor.</p>

— Hon. D. M. Anderson, Judge. Action to foreclose a mortgage. Defendant interposed a counterclaim, asking damages for wrongful suing out of a writ of attachment and the negligent and improper disposal by plaintiff at much less thani its value of lands held by plaintiff by way of additional security for the indebtedness. Defendant’s counterclaim was disallowed, and a decree was entered in favor of plaintiff as prayed in his petition. The defendant appeals.

— Hon. 0. W. VERMILLION, Judge. Action to recover damages for the diversion of surface water and for the creation of a, nuisance. Trial to a jury. Judgment for plaintiff, and defendant appeals.—

— IIon. W. R. GbeeN, Judge. Action to recover damages for a personal injury. Trial was bad to a jury, resulting in a verdict and judgment for plaintiff. Defendant appeals.

— HoN. O. D. Wheeler, Judge. Action to construe tbe will of Lars Weien, deceased. M. J. Larson, a son of tbe deceased, appeals from tbe decree of tbe trial court bolding tbat tbe widow took an estate in fee under the will.

— IíoN. A. P. Barbee, Judge. Action to quiet title to real property. There was a decree for the defendants, from which plaintiff appeals.

— Hon. Edmund Nichols, Judge. Action involving plaintiff’s claim of dower in lands of which it is alleged her husband, James Sullivan, died seised. Decree for defendants, and plaintiff appeals.

— IioN. TraNK E. Gayetor, Judge. ActioN for the recovery of damages for the death of Emil Lunde, which is alleged to have been occasioned by the defendant’s negligence. Verdict and judgment for plaintiff, and the defendant appeals.

— Hon. D. M. Anderson, Judge. Suit on promissory notes executed by the defendant. A jury ivas waived and the case tried to the court, and plaintiff recovered a judgment for a part of his claim. The defendant appeals.

<p>Appeal from Woodbury District Gowrt. — IIoN. David Mould, Judge.</p> <p>ActioN for damages resulted in verdict and judgment for plaintiff. Defendant appeals.</p>

— HoN. W. S. Withdkow, Judge. ActioN for divorce on tbe ground of desertion. Decree for tbe plaintiff, from wbicb defendant appeals.

— Hon. W. Gr. Clements, Judge. Suit to enjoin the defendant and its town council from enforcing the rebuilding of plaintiff’s temporary sidewalk. Decree finding the plaintiff entitled to partial relief and denying other relief prayed for and taxing one-half the costs to each party. Plaintiff appeals.

— Hon. A. B. Thornell, Judge. Action to recover damages for libel. Trial to a jury. Verdict for plaintiffs in the sum. of $1. Judgment on the verdict and against plaintiff for costs. Plaintiffs appeal.

— Hon. W. H. Fahey, Judge. Prior to April 5, 1907, Geo. Condon and wife became indebted to plaintiff on four notes aggregating $75, on which $10 had been paid and some interest had accrued. Upon executing the first of these, he made an assignment of wages earned or to be earned as employe of the Chicago', Milwaukee & St. Paul Railway Company, his wife joining and both duly acknowledging the instrument.