Volume 140 — Iowa Reports

— IIon. Frank K. Gaynor, Judge. Suit in equity for the- specific performance of a contract for tbe sale of land. Defendant admitted the contract, but pleaded various defenses, which, will be referred to in the body of the opinion. Trial to the court. Decree and judgment for plaintiff, and defendant appeals.

<p>1 Gifts: evidence. In the instant case the evidence is held insufficient to establish plaintiff’s claim that she was the possessor of a certain sum of money as a gift from her mother.</p> <p>2 Judgments: adjudication: reservation of that question. Where the court rightfully found that plaintiff had not proven her right to the fund in suit as a gift from her mother, and there was a question as to whether the sum had been used by defendant and plaintiff’s father in their partnership business, it was proper for the court in dismissing plaintiff’s petition to provide that the decree should not constitute an adjudication respecting the fund in another action pending for an accounting between the partners.</p> <p>3 Judgments: dismissal of petition. Where one member of a partnership made no answer to a petition claiming of the firm a certain sum of money, but defaulted and testified in plaintiff’s behalf, there being no claim to a right of judgment against him for want of answer and no affirmative showing of service of notice upon him, the court’s order in dismissing plaintiff’s petition is not disturbed.</p>

<p>1 Agency: commission contract: authority of one joint owner. One joint owner in possession of a farm, with authority to negotiate a sale of the property as any owner would ordinarily do, may bind his co-owner by an agreement to pay a commission for procuring a purchaser.</p> <p>2 Same: instructions. Where there was no conflict in the evidence as to the authority of one joint owner of property to bind the other by a contract of sale of the property, in the absence of a request the court was not called upon to give a specific instruction on the question of agency and authorizing a finding for. plaintiff against both owners, if a contract was made by one or both, to pay a commission for finding a purchaser upon performance by plaintiff.</p> <p>3 Commission contract: reasonableness: instruction. The agree-merit to pay a broker having several farms for sale in the same locality a commission of $500 for simply producing a possible purchaser, with whom he used no influence to effect the sale, is held not to have been harsh or unreasonable under all the circumstances ; and the court was justified in telling the jury this question was not for them to determine, but whether the contract was in fact made as claimed and performed, although the same might be taken into consideration in weighing the testimony.</p> <p>4 Instructions. No prejudice arises from the giving of a correct instruction concerning an issue which is controverted by the evidence.</p> <p>S Rendition of second judgment: correction of name. Where the proper party in fact appears and defends an action but is misnamed in the judgment, a second judgment upon the same verdict may be rendered against him by his' right name, in a proper proceeding and upon service of notice thereof.</p>

— Hon. J. L. Kennedy, Judge. Action to redeem .property from a tax sale. There was a judgment for the plaintiff, from which the defendant appeals.- —

— Hon. James A. Howe, Judge. Plaintiff presented in the probate court his claim against the estate of Slocum, of which the defendant is administratrix, for damages arising from breach of the covenants in a deed of conveyance of certain land in South Dakota from the decedent to plaintiffs remote grantor.

<p>Appeal from Linn District Court. — Hon. Milo P. Smith, Judge.</p> <p>Suit to recover damages for a personal injury. There was a verdict and judgment for the plaintiff. The defendant appeals.- —</p>

<p>1 Railroads: negligent construction of track. It is as much the duty of a railway company to use the required care to make a spur track a reasonably safe place for an employee to work as it is in the construction of its main line, and where it places ties thereon in such manner as to form a trap for the foot of a brakeman when stepping between the rails, unless ballasted, it becomes its duty to fill between the same with the necessary ballast to meet the degree of care required by law.</p> <p>2 Same: assumption of risk. A brakeman assumes the risk of dangerous conditions in the track of which he has knowledge or in the exercise of reasonable care ought to know, but in the instant case, while plaintiff may have known of the unballasted condition of the track, it cannot be said from the evidence as matter of law, that he knew or ought to have known of the peculiar position of the ties between which his foot was caught.</p> <p>3 Same: contributory negligence. A brakeman in the performance of his duties while switching cars may assume that his signals will be obeyed, but whether the engineer is required to be at all times on the lookout and observe the signals depends largely on the circumstances of the particular case. Under the evidence in the instant case it is held that the plaintiff was not guilty of contributory negligence as matter of law in assuming that his signal to stop was observed, and in stepping in front of a moving car.</p> <p>4 Same: instruction. Where it was shown without dispute that it was the duty of the engineer to keep a constant lookout for signals while switching, the court correctly instructed that if plaintiff gave the stop signal in. the customary manner where the view was unobstructed and could have been seen by the engineer if looking, and the speed of the cars was such that by the use of ordinary care they might have been stopped within a few feet, then plaintiff might assume that the signal was seen and the cars would be stopped.</p> <p>5 Appeal: review of questions not urged below. Objection that charges of negligence are not sufficiently pleaded to warrant submission to the jury, when first made on appeal, will not be considered.</p> <p>6 Negligence: instruction. Where it was the duty of an engineer to keep a constant lookout for signals while switching, an instruction authorizing a finding for plaintiff if his failure in not seeing the signal or discovering plaintiff’s peril was the cause of the injury, was proper.</p> <p>7 Expectancy of life: instruction. It is not erroneous to instruct the jury that the expectancy of life of a person the age of plaintiff and in good health was a certain number of years, where such was the admitted fact, and the jury was also told that it did not follow that plaintiff would live that long, and that all other proven facts bearing on the matter should be considered.</p>

— Hon. L. E. Fellows, Judge. Action in equity to compel defendant, a fraternal beneficiary association, to levy, collect, and pay over a benefit assessment. Plaintiff was denied the relief prayed, and he appeals.

- — -IIon. Wm. Hutchinson, Judge. This is a contest over the will of Duncan Boss, deceased. It is claimed that testator was unsound of mind when ho made the will, and that the same was the result of fraud and undue influence exercised by Boyson and Bobert Boss and other persons unknown. Defendants are beneficiaries under the will, and they were also named as executors, and as such they offered the will for probate.

<p>Physicians: revocation of certificate; constitutional law: due process. The right to practice medicine is a valuable right and is not to be taken away without due process of law, which contemplates notice and an opportunity to defend; but the statutes authorizing the State Board of Medical Examiners to revoke a physician’s certificate need not expressly provide the notice to be given; if by fair implication they contemplate notice and hearing they will not be held violative of the constitutional provision in that regard. Code sections 2578 and 2576, in relation to the subject, when construed together, imply that parties interested in matters before the board shall be given an opportunity to be heard and are not for that reason unconstitutional.</p>

<p>Master and servant: assumption of risk. Where the danger in performing a service in the manner adopted by an employee is obvious to him he assumes the risk; as where an experienced bridge carpenter and assistant foreman was directed to repair a water crane, which required that the standpipe be raised so that -the ball bearings might be adjusted, and in doing so selected his own tools, crowbar and small fulcrum, with which they raised the pipe, and without attempting to otherwise support it he inserted his hand to adjust the bearings when the bar slipped and the pipe fell causing his injury, he cannot say that defendant was negligent in failing to warn him of the danger.</p>

■Appeal from Van Burén District Court. — IIon. O. W. Vermillion, Judge. The petition alleged that in his lifetime Oliver IT.

— Hon. Edmund Nichols, Judge. Suit to recover the price of an account register. There was a trial to a jury, and a verdict and judgment for the defendant. The plaintiff appeals.

<p>Appeal from Jasper District Court. — Hon. L. E. Willcockson, Judge.</p> <p>Appeal from the action of the district court in refusing to assess a collateral inheritance tax against the property of John R. Lamb, deceased.</p>

— Hon. W. H. ■McHenry, Judge. In 1899 George B. Wood became a member of the defendant corporation, a mutual benefit insurance association, entitled to have paid to his then wife, Ella F. Wood, in the event of his death, the amount of one assessment on the membership of said association not to exceed $3,000.

— Hon. A. P. Barker, Judge. Suit for the partition of a lot. There was a- judgment for the plaintiff, from which the defendants, Lucretia Stewart and George Stewart, appeal.

— IIon. David Mould, Judge. This is a proceeding to determine the boundary line between the property owned by plaintiff and that' owned by defendants other than Monona County, and to ascertain and define the limits of a duly established highway between the- lands owned by the respective parties. Defendant Uhl admitted the allegations of the petition, and consented to the entry of a decree in plaintiff’s .favor.

<p>Appeal from Jones District Court. — Hon. Wm. G. Thompson, Judge.</p> <p>Tins suit was brought to recover a sum of money, alleged in the petition to have been delivered to the defendant for plaintiff by -their mother.. There was a general denial filed by the defendant, and a trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.</p>

— Hon. J. B. Whitaker, Judge. Action to recover damages for injury to tbe surface of land occasioned by the removal of coal from beneath it. There was a judgment for the plaintiff, from which the defendant appeals.

— Hon. J. F. Clyde, Judge. Indictment for maintaining a liquor nuisance. Plea, not guilty. Trial was had before a jury. Verdict of guilty, and judgment thereon. Defendant appeals.

— Hon. W. H. McHenry, Judge. The defendant was found guilty of practicing medicine without a license, and, from a judgment imposing a fine of $500, he appeals.

<p>Appeal from Osceola District Court. — Hon. John F. Oliver, Judge.</p> <p>Action to recover damages for malpractice of the defendant, a physician, in failing to properly reduce a dislocation of plaintiff’s shoulder. There was a verdict for the plaintiff for damages in the sum of $245, and from a judgment on this verdict the defendant appeals.</p>

<p>Appeal from Dallas District Court. — IIon. Edmund Nichols, Judge.</p> <p>Suit to enjoin- the sheriff from selling certain real estate as the property of Jacob H. Beaver. The case was tried to the court, resulting in a judgment for defendants, and plaintiffs appeal.</p>

— Hon. James D. Smythe, Judge. Action at law upon the official bond of H. L. McGrew, county treasurer, to recover the amount of certain money, lost through the failure of a bank in which county funds were deposited, without authority of the board of supervisors. Defendants rely upon a resolution of the board of supervisors exonerating the treasurer from liability and a curative act passed by the Legislature.

— IIon. H. P. Howell, Judge. This is a proceeding under section 2,815, Code 1891, for the condemnation of land for school district purposes. The commissioners appraised the plaintiff’s damages at $500. Plaintiff appealed to the district court. Hpon trial there, the jury fixed her damages at $850. The court taxed all costs to the .defendant. Plaintiff moved for the allowance of an attorney fee of $150 as part of the taxable costs.

<p>Appeal from, Bremer District Oourt. — Hon. C. H. Kelley, Judge.</p> <p>This is a habeas corpus proceeding brought to determine the legality of an indictment returned against the plaintiff by the grand jury of Bremer County, Iowa. A demurrer to the petition was overruled, and the trial judge discharged the plaintiff, and released him from the custody of the sheriff by whom he was held. Defendants appeal.—</p>

— Hon. Byron W. Preston, Judge. Action to recover damages for injury to plaintiff’s horse caused to it by being struck by defendant’s train on its right of way at a place where it had a right to fence; such injury resulting in the death of the horse. There was a verdict and judgment thereon for plaintiff, and defendant appeals. —

<p>Appeal from Polh District Court. — How. Hugh Brennan, Judge.</p> <p>Ti-ie defendant was convicted of the crime of rape, and appeals. —</p>

<p>Municipal corporations: use of streets for railway purposes: construction of franchise: damages. A grant by a municipality of the right to use its streets for railway purposes will be strictly construed against the grantee, so that where a grant was “to lay down and forever maintain its railway track,” which was construed by the parties to mean a single track, and damages to abutting property were settled on that basis, the company could not lay additional tracks without a new grant and additional compensation to abutting owners.</p>

— Hon. Clifford P. Smith, Judge. Action at law to recover for services rendered at the instance of' the defendant. Verdict and judgment for plaintiff, and defendant appeals.- —

— Hon. J. W. Bollinger, Judge. Action at law to recover damages for personal injury. There was a directed verdict for tbe defendant, and from the judgment entered thereon, the plaintiff appeals. — ■

— Hon. A. H. McVey, Judge. This is an appeal from a special assessment upon plaintiff’s lots for the paving of the street on which they abut. The trial court reduced the assessment, and the defendant appeals.- —

<p>Appeal from Polk District Court. — Hon. Alfred H. McVey, Judge.</p> <p>This is a proceeding whereby plaintiff, a judgment creditor of a corporation known as the “Des Moines Cabinet Company,” seeks to recover the amount thereof from the Wells & Antes Undertaking Company, and to establish a lien to the amount thereof against certain property conveyed by the cabinet company to the undertaking company. The trial court granted the relief prayed, and the defendants Wells & Antes Company and Des Moines Cabinet Company appeal. —</p>

<p>1 Libel: privileged publication: malice. In an action for libel actual malice must be shown in connection with a publication which is conditionally privileged, but such malice may be proven by the publication itself, when considered with the facts and circumstances promoting and surrounding the publication.</p> <p>2 Same. The fact that one has no probable cause for believing the truth of a publication tends to show actual malice and will warrant that conclusion.</p> <p>3 Same: instruction. Where it is not claimed that a publication is absolutely privileged but it is conceded to be so conditionally, and the jury is required to find actual .malice, the truth of the charge not being pleaded, an instruction that the publication is a libel unless privileged is proper.</p> <p>4 Same: exemplary damages. Where there is evidence tending to show actual damage and malice an instruction authorizing the finding of exemplary damages, providing actual damages are found, is proper.</p> <p>5 Malice: evidence. The unwarranted statement in an application for the appointment of a guardian, that the person for whom the appointment is sought is an habitual drunkard, is sufficient evidence of malice in publishing the statement to take the case to the jury.</p>

— IIon. O. A. Byington, Judge. Action to recover for services rendered under an alleged contract with the defendant. Verdict and judgment for plaintiff. and defendant appeals. —

Franklin ’ C. Platt, Judge. Suit in equity upon a policy of fire insurance. De-r fendant denied liability to plaintiff, who is an assignee of tbe policy, pleaded that the loss was not due to fire; increase of hazard, and violation of the by-laws of the company. Trial to the court. Judgment for plaintiff, and defendant appeals. —

<p>Appeal from Buchanan District Court. — Hon. A. S. Blair, Judge.</p> <p>Action to quiet title to a strip of land ivithin the limits of the original plat of the town of Jessup. There was a decree for plaintiff, and defendants appeal.—</p>

<p>Appeal from Gerro Gordo District Gourt. — Hon. Clifford P. Smith, Judge.</p> <p>Action at law upon a promissory note. Judgment for defendants, and plaintiff appeals. —</p>

— Hon. Jesse A. Miller, Judge. Suit to recover rent and to enforce a landlord’s lien. There was a judgment for the plaintiff for a part of his claim and he appeals. —

— Hon. James A. Howe, Judge. Action on a life insurance policy on the life of Emmett J. Crowell. The plaintiff was the original beneficiary named in such policy. Before' the death of the insured, a change of beneficiaries was made, and defendant C. C. Crowell was specified as beneficiary in lieu of the plaintiff. The defendant insurance company conceded its liability for the full amount of the policy to one beneficiary or the other.

<p>1 Husband and wife: desertion: indictment: duplicity. The disjunctive acts declared in Code, Supplement 1907, section 4775a, as constituting the desertion of a wife or children, may be alleged conjunctively in an indictment without duplicity.</p> <p>2 Desertion: venue. The venue in a prosecution for failure to provide for a wife or children is in the county where the duty of providing for them should be discharged.</p> <p>3 Desertion: good cause. The term “good cause,” as used in the statute relating to desertion of a wife or children, depends largely upon the particular circumstances of each case, but in general means any cause which affords a legal excuse for not providing for them.</p> <p>4 Same: description of offense: definiteness. The term “in a destitute condition,” as used in the statute with reference to desertion is as definite a statement of the offense as can well be made, and the statute is not void for uncertainty on that account.</p>

<p>Drainage: surface water: injunction. Defendant for a valuable consideration obtained the right to connect with plaintiff’s tile drain to discharge the water naturally flowing in that direction; later the same was extended, and as plaintiff claims, carried water onto his land which naturally flowed in another direction; but the evidence was indefinite and uncertain, and plaintiff is held not entitled to an injunction restraining the . maintenance of that constructed, but is restrained from further extension of the drain.</p>

— Hon. W. H. McHenry, Judge. Action in equity to reform a fifty-year lease, and recover rent due thereunder. By way of counterclaim defendant asks judgment against plaintiff for expense incurred in acquiring the right to use a wall in common partly resting upon the leased premises. Plaintiff was given ' judgment for the rent claimed, and defendant’s counterclaim was dismissed. Defendant appeals. —

— Hon. W. D. Evans, Judge. Action in equity to construe a will. On trial, the petition was dismissed. There was- judgment against plaintiff for costs, and he appeals. —

<p>1 Undue influence: age and infirmity. Extreme age and consequent infirmity may be considered in determining whether a grantor was unduly influenced in making a conveyance.</p> <p>2 Same: evidence. On an issue as to undue influence in 'the execution of a deed to grantor’s housekeeper, at the suit of his heirs to set the same aside, the evidence is reviewed and held to show a voluntary conveyance rather than as the result of influence growing out'of improper relations with the grantee.</p> <p>3 Opinion of trial court: weight given same on appeal. Where the evidence is conflicting the appellate court will give considerable weight to the opinion of the trial court who had the opportunity, of seeing and hearing the witnesses.</p>

<p>i Estates of decedents: advancement: partition. Where the actual consideration for a conveyance from a parent to a child is nominal, the difference between the sum paid and the real value of the land will be presumed to be an advancement.</p> <p>2 Same: payment of claims. Where an estate is unsettled, but the time for filing claims has expired and all enforceable demands against it were ascertained at the time of a partition action by the heirs, it could make no difference to them whether the claims were paid from a sale of property by the administrator or from the proceeds of the partition sale.</p>

— Hon. Clieeord P. • Smith, Judge. Action to enforce specific performance of an oral contract to convey land. There was a decree for defendants, and plaintiffs appeal. —

<p>Appeal from Monroe District Court. — IIon. M. A. Roberts, Judge.</p> <p>The opinion states the case. —</p>

<p>Appeal from Cerro Gordo District Court. — Hon. J. F. Clyde, Judge.</p> <p>Action on an alleged contract for labor on a farm resulted in a judgment against defendant, from which-Fe appeals. —</p>

— Hon. W. H. McHenry, Judge. Action for damages for alleged personal injuries resulting from collision with one of defendant’s express wagons. Judgment for the defendant on a directed verdict. Plaintiff appeals. —

— Hon. B. M. Wright, Judge. The plaintiff, a judgment creditor of John M. Crist, brings this suit in equity to subject to the payment of its judgment a claim for support against M. B. Crist, D. E. Crist and Olive Nail, who are the children of his deceased wife and the executors of her estate. There was a decree for plaintiff, and the defendants appeal. —

— Hon. Hugh; Brennan, Judge. Action for breach of promise of marriage and for seduction. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. —

— Hon. Clifford P. Smith, Judge. Suit to recover damages for a personal injury. There was a verdict and a judgement thereon for the plaintiff,' from which the defendant appeals. —

— Hon. W. D. Evans, Judge. In assessing the expenses of constructing a drainage ditch, $800 was assessed to Mary A. Crary, as the owner of a forty-acre tract of land situated near the ditch. The owner appealed to the district court, where the assessment was confirmed, and now appeals to this court to have such assessment set aside or reduced. —

— Hon. W. H. McHenry, Judge. Defendant was found guilty under an indictment charging him with a crime described as “resorting to a hotel for the purpose of lewdness,” and, from a sentence of imprisonment in the state reformatory for an indeterminate period not exceeding five years, he has appealed.—

— Hon. O. P. Smith, Judge. Action to recover damages for personal injuries alleged to have been received by reason of the negligence of the employes in the operation of a train, and without contributory negligence on the part of the plaintiff. There was a verdict for the plaintiff, and, from a judgment thereon, the defendant appeals. —

<p>1 Conveyances: easements: enforcement: burden of proof. A provision in a deed that neither the grantee nor his transferees shall thereafter place any obstruction upon the land for a term of years, constitutes an easement for a violation of which right the grantor is not confined to an action for damages, but may enforce his right in equity, where no circumstances have occurred nullifying the purpose for which the easement was created; and the grantee has the burden of establishing, in defense of its enforcement, a contention that the provision was inserted after the purchase was completed.</p> <p>2 Same. A covenant binding a grantee not to place any obstruction upon the land conveyed for a term of years is not opposed to public policy; nor will he be heard to say that it is a hardship, unreasonable, inequitable or of no substantial money value.</p>

— IIon. Edmund Nichols, Judge. Dallas County presented a claim for the expense of keeping Willis Buck, insane, against his guardian, -Thornley. The claim was denied by the guardian, and. on the issues joined the case was'tried to the court resulting in the establishment of the claim. ' The guardian appeals.—

— Hon. C. H. Keleey, Judge. This is a proceeding by certiorari in the lower court to secure the annulment of a special assessment made on plaintiff’s land by the defendants, constituting the board of supervisors of Hancock County, for the construction of a ditch in drainage district No. 10 in, said county. The court sustained, the proceedings of the board, and the plaintiff appeals. —

<p>Appeal from Woodbury District Court. — Hon. David Mould, Judge.</p> <p>Í'he opinion states the facts. —</p>

<p>Appeal from Polk District Court. — Hon. James A. Howe, Judge.</p> <p>Action for the value of certain papers alleged to have been appropriated by defendant. The petition was dismissed, and plaintiff appeals. —</p>

<p>Appeal from Jones District Court. — Hon. B. H. Miller, Judge.</p> <p>. Suit to quiet title to laud alleged to constitute a part of plaintiff’s depot grounds. The petition was dismissed, and a decree entered quieting title in the defendants as prayed in their several cross-petitions. The plaintiff appeals. —</p>

— IIon. O. A. Byington, Judge. This is an action for attorney's fees for services rendered to the wife of defendant, in a divorce suit brought in her behalf against the defendant. Defendant demurred to the petition. The lower court sustained the demurrer, and entered judgment dismissing plaintiffs’ petition, and for costs. Plaintiffs appeal.

— Hon. R. P. Howell, J udge. This is a proceeding by creditors’ bill seeking to subject certain moneys to the payment of plaintiff’s judgment. Decree for plaintiff for $700 and costs. The defendants appeal. —

<p>Appeal from Hamilton District Court. — Hon. J. IT. Richard, Judge.</p> <p>Action in equity to quiet title to land. Decree for the defendant upon'her cross-bill, and plaintiffs appeal.—</p>

<p>Appeal from Polk District Gourt. — Hon. Jesse A. Miller, Judge.</p> <p>Judgment for $20,171.95, as balance of account clue plaintiff for cut stone furnished the defendant Schlueter unaer contract, having been rendered against said defendant on his iailure to appear and defend, and against the Illinois Surety Company as the surety for Schlueter on a bond to discharge an attachment, the judgment defendants filed their separate motions to set aside said judgment on the ground that there was a good defense to plaintiff’s cause of ction, which, without negligence on the part of the judgment defendants, had not been presented to the court before the rendition of judgment. The motions were separately overruled, and each of the defendants appeals.—</p>

— Hon. J. F. Clyde, Judge. This is a habeas corpus proceeding brought to secure to Gerhard Smidt the custody and control of his son Felko, a minor eleven years of age. The trial court decided that the child should remain with defendants, and the father appeals. —

— Hon. Hugh Brennan, Judge. Action to recover the amount due under a contract of sale of oah lumber to the defendant. The defendant in its answer admitted the contract, but alleged that a large portion of the lumber tendered in performance of the contract did not comply with the specifications, and was rejected; and by way of counterclaim defendant alleged damages by reason of said breach of contract on plaintiff’s part.

— Hon. W. D. Evans, Judge. Action on a note for $1,500 executed to plaintiff by defendant April 23, 1904, payable December 1, 1905, with interest at the rate of seven percent per annum. The defendant admitted the execution of the note, but alleged by way of counterclaim that it was given in part payment of 1,280 acres of land in Norman County, Minn., and that defendant was induced by fraud to purchase the same to his damage in the sum of $19,200.

<p>i Municipal corporations: sidewalks: duty to repair. It is the duty of a city to exercise reasonable care to keep its sidewalks along a public thoroughfare in a safe condition for pedestrians to travel, regardless of whether there has been a formal dedication of such street to the city; and the question of whether the sidewalk was constructed apparently for public travel along a street open and used for travel is one of fact.</p> <p>2 Same: negligence. A city is negligent in maintaining a sidewalk for public use which terminates three feet above the ground without guard or rail, so that on'e in the exercise of reasonable care while using the same after dark is liable to step from the walk to the ground.</p> <p>3 Same: contributory negligence: evidence. On the question of the contributory negligence of one in stepping from the end of a sidewalk three feet above the ground the evidence is held to require submission of the issue.</p>

— Hon. N. W. Macy, Judge. Action to enjoin defendant from continuing its business of manufacturing compressed gas, and for damages. A decree was entered restraining it from operating its plant without equipping it with a smoke consumer and its boiler with a muffler, and damages were allowed. The defendant appeals. —

— Hon. D. F. Coyle, J udge. This is a proceeding by the plaintiff, as Treasurer of State, to collect from the defendant, as executrix of the will of decedent, Henry Durant, a collateral interitance tax. The court below ordered a recovery of such tax on certain bequests amounting to $3,980, and no more. The plaintiff appeals. —

<p>Appeal from ATlamalcee District Court. — Hon. A. N. Hobson, Judge.</p> <p>An indictment charging the defendant with the crime of' adultery was set aside on his motion, and he was discharged. The State appeals. —</p>

<p>Taxation: recovery of taxes voluntarily paid: estoppel. Taxes illegally or erroneously paid, although voluntarily and without protest, may be recovered by the tax payer in virtue of Code section 1417; but one who voluntarily submits his property to the jurisdiction of a tax officer, asking that it be assessed by him, is estopped thereafter from denying that it was not assessable or that the authorities had jurisdiction, especially where action has been ' taken by the assessment district on the strength thereof.</p>

<p>1 Trial: continuance. Where diligence is not shown in preparing for trial, or where the grounds of a motion for continuance filed after a cause is called for trial were known prior to that time, a continuance of the cause may properly be denied.</p> <p>2 Forgery: evidence of other like transactions. On a prosecution for forgery evidence tending to show other like transactions is admissible, not as substantive proof of the crime charged but as bearing upon the credibility of defendant as a witness; and as limited by the court to a consideration for that purpose no prejudice in the instant case resulted from its admission.</p> <p>3 Instructions: reasonable doubt: circumstantial evidence. It is not necessary for the court to instruct in each paragraph of its charge that the state must prove its case and each element thereof beyond a reasonable doubt; nor is it necessary for it to instruct on the subject of circumstantial evidence where the charge is established if at all by direct testimony, especially in the absence of a request to that effect.</p> <p>4 Argument: prejudicial statements. Where defendant’s counsel by cross examination of the states witnesses and by argument injects improper matter into the case, the defendant can not complain of the county attorney’s reply argument, unless he oversteps proper bounds in so doing and" prejudice results to defendant thereby. In the instant case no ^prejudice is shown.</p> <p>Same: affidavits. Misconduct in argument to the jury cannot be 5 shown by affidavits.</p>

<p>1 Venue: judicial notice. The location of incorporated municipalities within a certain county is a matter of judicial notice</p> <p>2 Venue: evidence. Venue is a question of fact to be gathered from the proven circumstances. Evidence held ‘■o support a finding that the prosecution was in the proper county.</p> <p>3 Attempted Rape: evidence. Evidence upon a prosecution for attempted rape is reviewed and held to sustain a verdict of conviction.</p>

<p>1 Sales: acceptance: evidence. Under a contract for the sale of a printing press, part payment to be made within a specified time after the press was put in running order and notes for the remainder were then to be-executed, the fact that the cash payment was made before the stipulated time and that the notes were dated shortly after, was not conclusive of the buyer’s intention to accept the press as a compliance with the contract, the other uncontradicted evidence being to the effect that acceptance was for some time thereafter declined, but finally the notes were actually executed.</p> <p>2 Conditional sale: transfer of title. Where property is sold under an agreement that title shall not pass until a mortgage upon the property is given to secure the purchase price, acceptance by the buyer will not of itself operate to pass the title; and delay in executing the mortgage because of a requirement that the seller repair the property, adjustment of freight charges, or absence of the buyer will not constitute a waiver of the condition precedent to the passing of title.</p> <p>3 Same: estoppel: performance by assignee. Where property was sold under a contract reserving title until the execution of a mortgage by the buyer to secure the purchase price, by accepting the mortgage from an assignee of the buyer in possession of the property and in performance of the contract the seller is not estopped to deny title in the original buyer as against a landlord’s lien for rent; as the passing of the title and the execution of the mortgage were parts of the same transaction.</p> <p>4 Chattel mortgages: landlord’s lien: priority. A purchase money mortgage given by a tenant as part of the transaction of purchase is a lien upon the property bought, prior to a lien of the landlord for rent.</p>

— Hon. F. W. Eichelberger, Judge. The defendant was indicted- for robbery as defined in section 4753 of tbe Code. He entered a plea of not guilty. Trial to a jury and verdict of guilty. Judgment imposing a sentence to the reformatory at Anamosa for a term not exceeding ten years. Defendant appeals.—

<p>1 Intoxicating Liquors: mulct law : .injunction. The so-called mulct law operates as a modification of the original prohibitory statutes, to the extent that a liquor dealer who has complied with all the conditions thereof cannot be enjoined from the operation of his business on the ground that it is a nuisance, as was formerly the case.</p> <p>2 Same: construction of statutes: exceptions. An express exception in a general statute has the effect to exclude from the operation of the statute matters' which would otherwise be included, and courts are required to give it effect though it may render the principal clause meaningless.</p> <p>3 Sale of Liquor: nuisance: constitutional law. The sale of liquor is not a nuisance per se and the mulct law permitting the sale as a beverage, when its conditions are complied with, is not invalid as an implied violation of the constitution, or of the general welfare clause of the federal constitution, on the theory that the traffic is demoralizing and destructive of public morals, health and safety.</p> <p>4 Equity Jurisdiction: injunction. The function of courts of equity is the protection of private property and civil rights, except when enlarged by statute, and they will not interfere by injunction to prevent or punish criminal or immoral acts unconnected with the violation of a private right; nor will they enforce moral obligations or duties.</p> <p>5 Sale of Liquor: legislative regulation. The mulct law permitting and regulating the sale of intoxicating liquor upon certain conditions is a proper exercisé of legislative power.</p> <p>6 Constitutional Law: statutes. Courts will not declare a statute void merely because in their judgment it violates the spirit of the constitution, but there must be a violation of a specific provision expressed, or clearly implied from what is expressed.</p>

— Hon. Z. A. Church, Judge. The defendants are members of the board of supervisors of Greene County. Plaintiff has brought his action for alleged damages for the value of certain tile, and the cost of restoring the same to plaintiff’s land. The averment is that such tile was dug up and removed from plaintiff’s land, under the direction and supervision of the defendants. There was a directed verdict for the defendants, and judgment for costs, and the plaintiff appeals.

<p>1 Divorce: appeal: incomplete record: trial de novo. A suit for divorce is triable de novo on appeal, but where all the material evidence taken upon the trial below was not preserved and is not before the appellate court, although the appellant is unable to present the entire record because of its partial loss, a trial de novo can not be had; and the presumption that the decree of the lower court was correct will obtain.</p> <p>2 Same: new trial. Upon an appeal from a decree of divorce the only action the appellate court can take is to affirm, modify and affirm, or to reverse the action of the trial court, upon a review of the testimony upon which it acted; it has no jurisdiction to order a new trial because of the absence from the record of material evidence which was lost after the trial below.</p>

<p>1 Trial: transfer to equity. Where the record in a law action as it stood at the time of its transfer to the equity docket failed to disclose the fact that there were'other parties interested in a determination of the matters involved, and no reason was given, even if such fact appeared, why they might become necessary parties, nor any attempt to implead them, the transfer of the cause to equity on that account was erroneous.</p> <p>2 Mutual Accounts: right to trial in equity. It is only in cases involving long and complicated mutual accounts, formerly triable in equity, that the right of compulsory reference and trial to the court exists under the statute; so that the transfer of an action to the equity docket brought by the receiver of a bank to recover a balance due on a personal account with the bank, involving simply credits for deposits and debits for withdrawals, and which, .aside from a contest over a single item, presented no equitable questions but related solely to the correctness of a part of the debit items, was without authority of law because not presenting a case of complicated mutual accounts.</p> <p>3 Joinder of Actions. There can be a joinder of actions only where the several causes may be presented by the same kind of proceedings, by the same parties and in the same right or capacity; so that an action by the receiver of a bank to recover an overdraft due the bank on a personal account, can not be joined with his right of action against an estate to recover an overdraft by the administrator.</p>

'- — Hon. O. D. Wheeler, Judge. Action on an insurance policy resulted in a judgment for amount for which defendant offered to confess judgment. From an order granting a new trial, it appeals.—

— Hon. W. H. Green, Judge. Suit iu equity brought by the administrator and heirs at law of Sarah A. Garman, deceased, to set aside a contract whereby the deceased conveyed to defendant Alice A. Coffeen all her personal property, consisting of drafts amounting to $2,921, and to recover from said defendant the amount of said drafts, with interest.

<p>Appeal from Mills District Court. — Hon. A. B. T'hornell, Judge.</p> <p>Action to recover damages for personal injuries alleged to have resulted from defects in a county bridge negligently maintained by the defendant. There was a verdict for the plaintiff, and from the judgment thereon defendant appeals. —</p>

<p>Appeal from Emmet District Court. — Hon. D. E. Coyle, J udge.</p> <p>The opinion states the case. —</p>

— Hon. N. W. Macy, Judge. Action to recover damages for injury to the plaintiff’s person. Verdict and judgment for plaintiff, and defendant appeals. —

— Hon. Z. A. Church, Judge. This is a bastardy proceeding in which, it is sought to compel defendant to support the illegitimate child of relator, Lizzie Mundt. There was a trial to a jury, resulting in a verdict of guilty and an order for support. Defendant appeals. —

<p>Appeal from Crawford District Court. — Hour. Z. A. Church, Judge.</p> <p>This is an action by plaintiff upon a bond executed by the defendants as sureties for one H. S. Green. There was a trial to the court without a jury. Findings and judgment for the defendants. Plaintiff appeals. —</p>

<p>Justice of Peace: adjournments: regularity of proceedings. A Justice of the Peace’ may not on his own motion continue a cause for more than three days, but having acquired jurisdiction he may at the request of either party for good cause continue it for a longer period, though no formal motion is filed, noting simply the order upon his docket with a statement at whose instance and for what time; and a defendant having appeared and procured one continuance is bound to take notice of a second continuance granted at plaintiff's request although ordered in his absence. The record in the instant case shows that the continuances were properly made at the instance of the parties and not on the motion of or for the convenience of the court.</p>

— Hon. F. M. Powers, Judge. Action at law to recover damages for trespass. The court having sustained a demurrer to the petition, the plaintiffs elected to stand upon their pleading, and from a judgment rendered against them for costs they appeal to this court. —

— Hon. F. M.. Powers, Judge. On the hearing of an application by H. O. Moore, a registered pharmacist, for a permit to buy, keep and sell intoxicating liquors, which was resisted by residents of 'the county filing remonstrances, the court found that notice of the application had been properly given, and that the allegations of the applicant as to his qualifications were sustained by the evidence, and further that the reasonable convenience and necessities of the people,…

— Hon. W. E. Green, Judge. Action to recover under a certificate of accident insurance in the defendant company. At the conclusion of plaintiff’s evidence, the court entered a judgment dismissing the plaintiff’s petition, and he appeals. —

— Hon. A. B. Thornell, Judge. » Action by plaintiffs to quiet title. Cross-bill by defendants to establish and quiet title in them. Decree for the plaintiffs, and defendants apDeal. —

— Hon. A. D. Bailie, Judge. Suit in equity to enjoin an alleged nuisance, and to recover damages suffered by plaintiff on account thereof. The trial court dismissed the petition, and plaintiff appeals.' —

<p>Appeal from Audubon District Court. — Hon. N. W. ' Macy, Judge.</p> <p>This is an action by the plaintiff, as an incorporated town, to recover of the defendant a certain portion of a vacated street, lying between blocks fifteen and sixteen. The defendant pleads adverse possession for more than forty years, and pleads an estoppel and a general denial and a want of acceptance on the part of the plaintiff of the land in question as a part of its streets. Decree for defendant. Plaintiff ■ appeals. —</p>

<p>Appeal from Shelby District Oourt. — Hon. W. R. Green, Judge.</p> <p>Action of replevin to recover the possession of certain described cows and calves sold by plaintiff to the defendants Ryan & Son, and alleged to have been procured by said defendants by false representations of solvency. The defendant Bank of Defiance asked judgment for the possession of the property under a chattel mortgage. The defendants Ryan & Son consented to judgment being entered against them confirming the title to all of the animals in plaintiff. There was a trial on the issue as between plaintiff and the defendant Bank of Defiance arising under allegations by plaintiff of fraud in the taking of tbe mortgage, and also fraud in procuring the sale by plaintiff to Eyan & Son. At the conclusion of the evidence the court on motion directed a verdict in behalf of the defendant bank, and from judgment on this verdict the plaintiff appeals. —</p>

— Hon. H. M. Towner, Judge. Action begun at law to recover upon a promissory note. Defendants having pleaded an equitable defense, the cause was transferred to the equity calendar for trial. The court found for the plaintiff, and the defendants appeal. —

<p>1 Vendor and Vendee: Bona fide purchaser: abandonment: estoppel. The evidence in a contest over the title to a tract of land by contending purchasers is reviewed and held to sustain the theory that the first purchaser had abandoned his contract, either because he thought there was no profit in his contract, or because he believed he could procure an independent title at less cost, and that by his acts and representations he was estopped from asserting title as against the second purchaser.</p> <p>2 Public Lands: location,by military warrant: taxation. The location of land under a military warrant segregates it from the public domain, and although the patent may be withheld pending an investigation, of the rights of parties arising from conflicting claims thereto, the legal title so held by the government is in the nature of a trust, and the land is subject to taxation from the date of its location under the warrant and record of the entry.</p> <p>3 Same: sale for taxes. Exemption from taxation under the federal statute of lands located by a military warrant is a personal privilege to the soldier himself, and does not obtain in favor of his assignee; so that lands located by the assignee of a warrant are taxable from the date of location, and a sale for taxes levied prior to issuance of patent will pass good title.</p> <p>4 Same: subsequent issuance of patent. Where the title under a military warrant was eliminated by a tax deed to the land, a subsequent issuance of a patent to the holder of the warrant did not affect the title under the tax deed.</p> <p>5 Same. The issuance of a patent to land located under a- military warrant relates back to the date of location and removes all doubt as to the taxable character of the land after that date.</p>

<p>Appeal from Lee District Court. — Hon. Henry Banks, Jr., Judge.</p> <p>The opinion states the case. —</p>

— How. A. H. McVey, Judge. Action to recover damages for personal injuries to the plaintiff, by whom the original action was brought, and for whom on his death his administratrix has been substituted; such injuries being alleged to have been occasioned by the negligence of the defendant, in whose employ he was at the time of receiving such injuries. There was a verdict for plaintiff, and, from the judgment rendered thereon, defendant appeals. —

<p>Appeal from Tama District Court. — IIon. ' J. M. Parker, Judge.</p>

— Hon. M. O. Matthews. Judue. Action at law to recover damages on account of personal injury. Verdict and judgment for plaintiff, and the defendant appeals. —

<p>Appeal from, Wright District Court. — Hon. O. G. Lee, Judge.</p> <p>An action at law to recover on a policy of accident insurance issued to the plaintiff by the defendant, a mutual accident insurance company organized and doing business under the laws of this State. The case was tried to the court and a judgment was rendered for the plaintiff, from which the defendant appeals. —</p>

<p>Appeal from Cedar District Court. — Hon. B. H. Miller, Judge.</p> <p>Action for damages for alleged seduction. Verdict and judgment for the plaintiff for $3,500. Defendant appeals. —</p>

<p>1 Attorney’s lien: discharge. The release of an attorneys lien may be accomplished by simply filing a bond as provided in Code section 322, and thereafter the client has full control of the judgment and the fund in the hands of the clerk applicable to its satisfaction.</p> <p>2 Same: action to enforce lien: forum. Where the client procures the release of an attorneys lien, by filing the statutory bond before answering in an equitable action to enforce the lien, the attorneys claim for services then becomes an ordinary demand at law and is triable as such.</p> <p>3 Same: jury trial: waiver of right. Where an equitable action is brought to enforce an attorney’s lien, and the same has been converted into an ordinary demand at law by the filing of a statutory bond, the right to a jury trial which was demanded before answer in the equitable action was not waived by subsequently filing an answer therein and going to trial.</p>

<p>Appeal from Jones District Gourt. — Hon. Milo P. Smith, Judge.</p> <p>The defendant was convicted of having committed rape, and appeals. —</p>

<p>1 Mutual insurance: assessments: default: burden of proof. A member of a mutual benefit association is not in arrears for. failure to pay an assessment so long as it holds an unapplied advance assessment; and the burden of establishing an application of the advance assessment is on the association.</p> <p>2 Appeal: questions not raised below. It is too late to raise an objection to the form of an action or the forum for the first time on appeal.</p> <p>3 Pleadings: interest of parties. The allegation that certain named persons were the only heirs of a deceased member of a benefit society, though somewhat indefinite, was sufficient to show their interest in a suit on the certificate, in the absence of any objection to the pleading in the trial court.</p>

<p>1 Mortgages: priority of liens: fraud. A creditor may without fraud take a mortgage on his debtors property, although knowing the debtor to be in financial difficulty, and the burden of proving fraud is upon the party who assails its validity.</p> <p>2 Same: mechanics lien: judgment. The parties to a mortgage given prior to a judgment foreclosing a mechanics lien upon the premises are not bound by the judgment- unless made parties to the foreclosure;’and a purchaser of the premises on execution sale under the judgment takes title subject to the mortgage, unless the title relates back to the time of filing the statement for the lien.</p> <p>3 Same: foreclosure: sale of several parcels in gross. A mechanics lien holder wishing to preserve his liens on separate tracts of land so that a judgment of foreclosure will relate back to the time of filing the statements therefor, should proceed to a separate foreclosure and sale in each case, for .by electing to foreclose and sell both in one action taking a general judgment for the amount due on both, the judgment becomes a lien on both parcels only from its date, and a mortgage upon the property taken prior thereto will have precedence.</p>

— Hon. C. B. Bradshaw, Judge. The defendant was indicted and put on trial for murder in the first degree, but the court directed the jury that under the evidence he could not be convicted of a higher ' offense than murder in the second degree. The jury found him guilty of murder in that degree, and he was sentenced to imprisonment in the penitentiary for a term of twenty-five years. From this sentence he appeals.

— Hon. Charles E. Bansier, Judge. Action for severance of territory from tbe corporate limits of the city of Waterloo resulted in judgment as prayed. The defendant appeals. —

<p>Original proceedings in certiorari for the review of certain orders of the district court of Linn County. The material facts are stated in the opinion. —</p>

<p>1 Contempt: finding of court: when conclusive. Where there is evidence from which it can properly be found that defendant was not guilty of violating an order of the court by making sales of liquor to certain persons, the judgment of the district court refusing to punish him for contempt will not be disturbed.</p> <p>2 Illegal sale of liquor: contempt: intent. The sale of liquor by a pharmacist without taking a written request therefor, showing the purpose for which it is desired, is a violation of an injurictional order restraining illegal sales, and is punishable in contempt proceedings irrespective of the question of intent in making the sales.</p> <p>3 Same: review of trial court’s findings. The trial court cannot rightfully refuse to punish for contempt, where it is conclusively shown that a defendant has violated an injunctional order restraining the illegal sale of liquor; and where this is done the facts of the case will be reviewed on appeal and it will be remanded for a proper order.</p>

— Hon. James A. Howe, Judge. Action for conversion of property upon which, plaintiff claimed a lien. The defendant set up an alleged prior lien on the same property. The case was transferred to the equity side of the docket, and tried to the court. Judgment and decree for plaintiff for $65. Defendant appeals.

<p>i Evidence: attorney and client: confidential communications. A communication made by a testator to the attorney drawing his will may, or may not, be privileged, depending upon its nature; and where there is nothing in the communication itself indicating that is was of a confidential nature, and no other fact tending to so characterize it, the testimony of the attorney thereto is not privileged.</p> <p>2 Homestead: election by widow. A widow has the election to take either a homestead right or a distributive share of her husband’s estate, which she may exercise within a reasonable time after his death; and while mere occupancy of the property for a considerable time may not alone be sufficient to conclusively establish her election to take a homestead, still it raises a presumption which should be considered with other facts bearing upon the question; so that where she instituted no administration, occupied the property for two and one half years and all the circumstances, her acts and conduct, were inconsistent with a claim of any other estate in the property she should be held to have made an election of the homestead.</p> <p>3 Same. While by the statute an heir may end the time within which the widow may make her election to take the homestead right or her distributive share, by serving a notice requiring her to make the election, still failure to serve the notice does not operate to extend the time for doing so indefinitely; and in the absence of such notice an election manifested by her unequivocal words, acts and conduct may be enforced.</p>

<p>Agency: extent of authority: leasing property and collecting rents. The authority of a general agent is not unlimited, but is restricted - to transactions within the scope of his principal’s business with which he is concerned; so that proof simply that a lease of premises was executed by an agent who had full charge and authority to collect rents does not show power to contract for the payment 'of rents in anything aside from money, as for board of the agent and -family.</p>

<p>I Real property: rescission : mutual mistake of fact. Where parties having the same source of knowledge respecting their ownership of property are mutually mistaken in the belief that they acquired title thereto as heirs, by adoption, the mistake is one of fact, and an action in equity to rescind a contract of sale of the interest of one to the other and to cancel a deed therefor will lie.</p> <p>2 Same: tender of reconveyance. Where no title passed by a conveyanee and the grantee was not put in possession a tender of a re-conveyance is not essential to a right of action to rescind the contract and cancel the deed.</p>

— Hon. O. D. Wheeler, Judge. Action at law to recover damages for breach of contract. There was judgment for the defendant -upon a directed verdict, and plaintiff appeals. —

— Hon. J. F. Oliver, Judge. This is an -action in equity for an injunction to restrain the defendant, as county treasurer, from the collection of certain taxes levied for school purposes in the independent school district of Sioux City. A temporary injunction was prayed for. A time for hearing the application for temporary injunction was fixed. Upon such hearing the application for such temporary injunction was denied. The plaintiff appeals.- —

<p>Appeal from Boone District Court. — Hon. R. M. Wright, Judge.</p> <p>Demurrer to petition sustained, and plaintiff appeals. The opinion states the material facts. —</p>

<p>Appeal from Wapello District Court. — Hon. M. A. . Roberts, Judge.</p> <p>This is an action for the partition of real estate. There was a decree confirming shares. Appraisers and a sole referee were appointed. The referee reported a sale to Nina A. Campbell, alleged intervener and appellant. Because of irregularities in prior proceedings, the court reopened the decree confirming shares, and modified the same, and refused to approve the sale reported by the referee. It- was ordered that the land be reoffered for sale at public auction. The purchaser, Nina A. Campbell, appeals.</p>

— Hon. J. H. Rothko ok, Judge. This is an action for a breach of -warranty in the sale of a furnace. The plaintiff avers a rescission of the contract on the ground of the breach, and sues to recover back the purchase price paid. Verdict and judgment for plaintiff. Defendants appeal. —

— -Hon. W. G. Clements, Judge. Action to recover from defendant, as husband of Anna Eikelberg, the several sums paid by the plaintiff county to the State for her care and treatment at- the hospital for the insane located at Mt. Pleasant. From judgment as prayed the defendant appeals. —

<p>Appeal from Monona District Gourt. — Hon. David Mould, Judge.</p> <p>Action to recover rent. Counterclaim by defendant for alleged services and for alleged damages for breach of contract. Verdict and judgment for the plaintiff for part only of his claim, and the plaintiff appeals. —</p>

<p>Appeal from Jasper District Court. — JIon. Byron W. Preston, Judge.</p> <p>This action was brought to restrain tbe defendant company and its officers from amending its articles of incorporation changing its principal place of business from Kellogg, Iowa, to Des' Moines, and from removing its office, shops, and factory from Kellogg. An injunction was granted restraining the defendants from removing the plant from Kellogg within five years from and after February, 1906. The defendants appeal. —</p>