Volume 141 — Iowa Reports

<p>1 Master and servant: failure to guard machinery: negligence. The statute requires that saws in manufacturing establishments, when it can be done, shall be so guarded as to prevent injury to workmen; and a failure to do so is negligence, irrespective of the question of custom. In the instant case the evidence was such as to show that defendant might have provided suitable protection by means of a board or hood.</p> <p>2 Same: assumption of risk: contributory negligence. An employee operating a circular saw does not assume the- risk of dangers not appreciated. In the instant case assumption of the risk of danger from flying particles of wood in the use of a circular saw, and of plaintiff’s negligence, were for the jury.</p>

— Hon. A. H. McVey, Judge. This is an appeal in the matter of an assessment of the cost of paving against abutting property in the city of Des Moines. From the action of the city council, the plaintiff appealed to the district court, and obtained therein partial relief. From the order of the district court both parties have appealed to this court. The defendant first perfected its appeal and is designated in the record as the appellant.

<p>1 Execution sales: action to redeem. Mere inadequacy of price is not ground for interference by a court of equity with the statute limiting the time of redemption from an execution sale, but relief may be granted against a sheriff’s deed in such cases because of mistake preventing redemption within the statutory time.</p> <p>2 Same. A debtor cannot set aside a deed on execution 'sale because of mistake preventing redemption, where there was another execution sale of the property on a later date, and neither an averment in his petition that he was misled as to the time for redemption from such later sale, nor that he offered to redeem therefrom prior to issuance of a deed.</p> <p>3 Same: tender of redemption. After issuance of a sheriff’s deed, on execution the clerk of courts has no power to accept redemption, and á tender to him is unavailing for that purpose; but as a basis for an equitable action to redeem the debtor should notify the holder of the deed of his claim of right to redeem and tender to him the amount necesary therefor.</p> <p>4 Same: redemption: extension of time. The statutory right to re- ' de»m from a sheriff’s sale on execution must be exercised within the time prescribed; the courts have no discretion or power to extend the time as an act of mercy.</p>

<p>1 Telegraphs: death message: nondelivery: recovery for mental suffering. Relation by affinity, only, will not raise a presumption of such cordial intimacy between the deceased and the addressee in a death message, as will support a recovery for mental suffering for its nondelivery, but the intimate relations of the parties must be shown; it is not necessary however that the company should know of their special relations at the time of sending the message.</p> <p>2 Same. A son may recover damages for mental anguish by reason of the nondelivery of a message to his father announcing the death of his wife, thus causing the father’s failure to attend the funeral; and it is not necessary to the recovery that the telegraph company had notice that it would cause him mental anguish if his father were not present. •</p>

— IIon. A: J. House, Judge. Plaintiee, as administrator of tlie estate of one Kiley, instituted tbis action to recover damages to decedent’s estate resulting from the death of decedent from injuries received through the negligence of defendant’s em: ployees while deceased was a passenger attempting to get on board the train of defendant on which he was entitled to transportation.

<p>1 School districts: school house tax: certification. When the electors of a school district have voted a tax at the annual meeting for school house purposes, it becomes the duty of the secretary of the board to certify the same to the supervisors within the time and as required by Code, section 2767, regardless of any action of the board, unless the vote is rescinded by a subsequent vote of the electors.</p> <p>2 Same: levy of school house tax. The fact that the electors at their annual meeting voted a school house tax in excess of that which can legally be levied in any one year does not render the action of the electors void, but the supervisors should make the legal levy notwithstanding the excessive amount voted.</p> <p>3 Special school meetings: duty of board: discretion: Mandamus. A board of school directors may call a special meeting of the electors when petitioned, to vote upon the question of rescinding a former vote authorizing a school house tax, but the statute makes the matter discretionary with the board and the court will not require it to act.</p> <p>4 Same. After taxes levied for school purposes in accordance with a vote of the electors of the district have become due, and a part or all have been paid, an action to require the board to call a special meeting to vote upon the question of rescinding the former vote will not lie.</p> <p>5 School tax: certification. The certificate of a school clerk to the supervisors certifying that a tax was voted by the electors upon the taxable property of the district is not void, because indicating an attempt to levy a tax on the property belonging to the district itself.</p>

<p>Appeal from Des Moines District Court. — IIon. James D. Smyth, Judge.</p> <p>Tiie defendant appeals from a judgment for damages resulting from an alleged breach of promise to marry.—</p>

<p>Appeal from Des Moines District Gourt. — Hon. W. S. Withrow, Judge.</p> <p>Appeal from the decision of the district court, upon an appeal from the action of the city council of the defendant, in levying a special assessment against plaintiff’s property for the construction of a sewer in a street or alley abutting said property.- —</p>

— Hon. Byron W. Preston, Judge. Action upon a policy of accident insurance. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals. —

— HoN. J. H. Peeston, Judge. ActioN to recover damages for personal injuries sustained by plaintiff while in the employ of defendant. Verdict and judgment for plaintiff. Defendant appeals.'—

— IIon. A. N. Hob-soN, Judge. AotioN to recover tbe value of cattle killed by defendant’s train at a highway crossing. Verdict and judgement for plaintiff. Defendant appeals. —

— IIon. C. B. Bradshaw, Judge. Action in equity to secure the construction of the provisions of a will. There was a decre'e in favor of plaintiff, and defendants appeal. —

— HoN. Jakes A. Howe, Judge. ActioN to enjoin defendants from constructing certain improvements and to quiet plaintiff’s title. Defendants answered, and in a cross-petition prayed that the division line between the premises ‘of plaintiff and defendants be established.

— Hon. James H. Rotiirock, Judge. Action to recover damages for detention of real property. On trial without a jury there was judgment for plaintiffs, and defendant appeals. —

<p>Wills: charitable bequest: uncertainty. A bequest for charitable purposes will be given effect if it can be done consistently with established rules. The will in question bequeathed a certain sum to a particular Presbyterian Church of which the testator was a member, and by a further provision gave to home and foreign missions a sum to be equally divided. The church was a part of the national organization, with a board of home missions and a board of foreign missions, to which the church contributed to assist them in carrying on their charitable enterprises. Held, that the testator intended the bequest for the boards of the home and foreign missions and was not void for uncertainty. — -Ladd and McClain, JJ., dissenting.</p>

<p>Appeal from Cedar Rapids Superior Court. — Hon. Jambs H. Rothrock, Judge.</p> <p>Action to recover damages for personal injuries alleged to have been received by. plaintiff as a passenger while alighting from defendant’s street car, due 'to the negligence of defendant’s employees. There was a verdict for plaintiff in the sum of $687.50, and from judgment thereon the defendant appeals.- —</p>

— IIon. D. H. Anderson, Judge. Action to recover damages for negligent delay in the transportation of a carload of horses, resulting in injury to the plaintiffs as owners by reason of the depreciation in value and loss of market. There was a verdict for the plaintiff, and from the judgment thereon defendant appeals. —

<p>1 Intoxicating liquors: illegal sale: contempt: pleading. An information charging the existence of an injunction against the sale of liquors in a certain building and city, and charging a violation thereof by a sale of certain specified intoxicants on such premises to certain named persons on a given day, is sufficiently specific as to time, place and buyers.</p> <p>2 Sáme: burden of proof. Prohibition is the rule in this State and the burden'is upon the party charged with the illegal sale of liquor to show that he was lawfully operating under the provisions of the mulct law; so that an information charging a violation of an in junctional order absolutely restraining defendant from keeping or selling intoxicants on certain premises, which alleges generally that sales were made thereon in violation of law is sufficient, without negativing the existence of facts which might excuse the defendant.</p>

- — -ITon. Edmund Nichols, Judge. This is an action to foreclose a mortgage purporting to have been given to secure a note for $500. Tbe consideration for the note and mortgage was that the plaintiff became surety for the defendant IT. O. Clement for a like amount. There was a decree for the plaintiff against, both defendants, except that no personal judgment was entered against defendant M. A. Clement. The defendants appeal.

<p>1 Municipal corporations: care of sidewalks: notice: evidence. On an issue as to whether defendant city was chargeable with notice of the alleged defective conditions of its sidewalks, in time to have repaired the same prior to plaintiff’s accident, it is held under the evidence to have been a question for the jury.</p> <p>2 Same: personal injury: damages: recovery by wife. A wife may recover as damages the expense of medicine and medical attendance incurred by reason of a personal injury resulting from the negligence of another, where she actually employed the physician and obligated herself to pay it on her own account; although ordinarily the husband is liable for such expenses and presumably such damages accrue to him.</p> <p>3 Same: damages: when not excessive. Two thousand five hundred dollars damages is held not excessive for injury to a woman forty-nine years of age and in previous good health, where she was confined to her bed for three months, incapacitated for her work and suffered pain and permanent disability.</p>

<p>1 Real property: breach of contract: pleading. A petition alleging the falsity of covenants of warranty in a deed and also a written tender of rescission, and asking damages to the amount of the consideration paid, presents an action for recovery of the consideration and not one for damages for breach of warranty.</p> <p>2 Same: rescission: evidence. In an action to recover the consideration paid for land in personal services, upon rescission of the contract because of failure of title, .evidence of the value of the services rendered is admissible.</p>

— Hon. J. P. Oliver, Judge. This is a proceeding by P. L. Eaton, ■ as receiver of the Vermont Building Company, to set aside a judgment against said company obtained by the intervener; irregularity and fraud and want of jurisdiction being alleged. Defendant answered with a general denial, and pleaded a want of authority in the receiver to bring the proceeding, in that his appointment was had without jurisdiction.

— Hon. Wm. Hutchinson, Judge. Demurrer to a petition alleging a commission due on sale of land was sustained, and, as plaintiff elected to stand on the ruling, the petition was dismissed. Plaintiff appeals. —

<p>Appeal from Mahaslca District Court. — Hon. EL E. Wilcoxen, Judge.</p> <p>Action to recover for goods sold and delivered. Judgment for plaintiff, and defendants appeal. —</p>

— Hon. B. W. Preston, Judge. Action in equity to enjoin the defendant from continuing . to maintain a place for carrying on the business of soliciting, talcing and accepting orders for the purchase, sale and shipment of intoxicating liquors for and on behalf of a corporation located in Kentucky, thereby creating and maintaining a nuisance.

<p>Appeal from, Lee District Gourt. — Hon. Henry Bank, Jr., Judge.</p> <p>Suit in equity to set aside a judgment obtained by defendant against tbe plaintiff béfore a justice of tbe peace of Lee County, Iowa, upon tbe ground that tbe justice bad no jurisdiction of plaintiff herein. Defendant filed a general denial, also pleaded a former adjudication, and interposed a plea in abatement based upon another action pending. The trial court set aside tbe judgment, and defendant appeals. —</p>

<p>Appeal from Woodbury District Coiurt. — Hon. Erank H. Gaynor, Judge.</p> <p>Action to recover a reasonable commission in the sum of $125, under contract for procuring the' purchaser to whom defendant effected a sale of real property. The allegations of plaintiff’s petition were denied, and there was a trial to a jury, resulting in a verdict for defendant. From the judgment entered on such verdict plaintiff appeals. —</p>

— Hon. W. H. Fahey, Judge. Action at law to recover damages because of the acts of the defendants in obstructing an alleged public highway. Verdict and judgment for the plaintiff for the sum of one cent, and the defendants appeal. —

— Hon. D. M. ANDERSON, Judge. Suit for divorce resulted in a decree as prayed and awarding the custody of a minor child one-half of the time to each party, alternating every six months. Both parties appeal; that of plaintiff being first perfected. —

<p>Appeal from Folk District Court. — HoN. Hugh H. BreNNAN, Judge.</p> <p>The opinion states tbe case. —</p>

This is an original action instituted in this court for the purpose of having determined the legality of the order of defendant, as district judge, refusing to hold one James Beaty guilty of contempt of court on an information filed by this plaintiff as relator,' charging said Beaty with violating an injunction and decree of the district court of Wapello county, restraining him from keeping, storing and selling intoxicating liquors in violation of law on certain premises in…

— IíoN. H. M. Towner, Judge. ActioN for damages resulted in a judgment. Thereafter plaintiff died, and the administrator of her estate was substituted as party plaintiff. The defendant appeals.—

— HoN. J. H. Applegate, Judge. Suit in equity to enjoin defendant from trespassing upon, or in any way interfering with, plaintiff’s possession of certain real estate in Dallas County, Iowa. The trial court granted the relief prayed, and defendant appeals.—

<p>1 Deeds: delivery: evidence: dower. The delivery of a deed is largely a question of intent to be gathered from all the facts and circumstances. On an issue as to delivery of a deed executed by grantor prior to his marriage, the evidence is reviewed and held insufficient to show delivery until after his marriage, and that his widow was therefore entitled to her dower interest in the land so conveyed.</p> <p>2 Partition: terms of sale: review of order. An order in partition appointing referees and directing a sale for cash if it can be made, if not, then partly for cash with balance on time secured by a mortgage back on the l^nd, will not be disturbed on appeal; especially where the matter is still in the control of the district court who may make such further order as the interests of the parties may require.</p>

<p>Appeal from Mahaska District Court. — Hon. Byron W. Preston, Judge.</p> <p>William A. Littlejohn died testate April 20, 1902, survived by a widow, Rebecca Littlejohn, and nine children. By the terms of the will, the use of the realty was given to the wife so long as she remained his widow and during her natural life, and upon her death the property to be divided between his children, share and share alike. The widow accepted under the will, and, on the 10th day of October, 1906, she and all but three of the children, Melville B. Littlejohn, Mary A. Smith, and Alta M. Rogers, signed a lease conveying coal underlying the surface on conditions named to the Crescent Coal Company. This company in prospecting discovered coal in workable quantities, and on the 10th day of July, 1907, assigned the lease to the plaintiff. On April 30, 1907, the widow and all tlie heirs executed a somewhat similar lease permitting the removal of coal on specified conditions to II. O. Miller and A. W. McMillan, and after an extension of time, executed May 20, 1907, these lessees assigned the lease to Andrew’ Love, who after drilling nine holes sunk a prospecting shaft, and after lifting-considerable coal drove an entry. The ultimate issue ivas whether plaintiff or Love was entitled to mine the coal from the land. The court dismissed plaintiff’s petition, and it appeals. —</p>

— Hon. Henry Bank, Jr., Judge. Creditors’ bill to subject certain property to the payment of judgments against Sperry Bros. The trial court dismissed the petition, and plaintiffs appeal.—

— Hon. C. W. Vermillion, Judge. This is an action by the plaintiff, as trustee in bankruptcy, to recover of the defendant bank money paid to the said bank by the bankrupt as a preferred payment within four months next preceding the adjudication of bankruptcy. Verdict and judgment for the plaintiff, and the defendant appeals. —

<p>Appeal from Mdhaslca District Court. — Hon. W. G. Clements, Judge.</p> <p>Action to recover from defendant the value of the paving between its rails and within one foot outside thereof, where its track was laid through paved streets in plaintiff city. On trial < to the court without a jury judgment was' rendered for plaintiff to the amount of a portion only of its claim, and on account of refusal to allow the portions of the claim rejected the plaintiff appeals. —</p>

<p>1 Mutual insurance: stipulation: estoppel. Where by the terms of a stipulation in a suit on a benefit certificate involving the question of a claimed delinquent assessment, there was repeated reference o to the assessment as having been made for the month of October, and it was conceded that if the method provided for giving notice of assessments was valid the defense based on nonpayment was complete, the plaintiff was estopped to deny that the assessment was due for the month specified.</p> <p>2 Same: notice of assessments: sufficiency. The agreement between a mutual assessment association and its members that notice of assessments shall be given by means of a printed publication, addressed and mailed in due time to each member, is not so unreasonable as to render it void; and conceding that a further provision making the affidavit of the publisher conclusive evidence of the mailing and receipt of the notice to be unreasonable, still such proof under the agreement would be a sufficient prima facie showing of notice, unless overcome by other evidence offered by plaintiff.</p>

— How. W. G. Clements, Judge. Suit in .equity to set- aside a sheriff’s deed and to quiet plaintiff’s title to a certain'lot in'the town of Barnes City. Decree dismissing plaintiff’s petition, and ■ she appeals.—

— Hon. Frank W. Eiciielbergjcr, Judge. On August 8, 1902, plaintiff served' notice on the sheriff, advising him that defendant had located a railroad from Albia to Moulton, and that “the said Wabash Railroad Company having refused to make compensation to John W. Hall, owner of the Northeast %, section 29, and Southwest % of the Northwest %, section 28, township 71, range 17, in Monroe County, Iowa, upon and over which said railway is located, and the owner of the said real…

<p>1 Mortgages: priority of liens: subsequent purchaser: notice. A simple decree in favor of a creditor establishing his right to subject property of the debtor to his judgment, will not entitle him to the protection of the recording act as a subsequent purchaser, as against prior equities and unrecorded instruments; it is only when he buys in the property at execution sale that hé becomes a subsequent purchaser.</p> <p>2 Same: description : sufficiency : notice. A description of land, although not entirely clear and satisfactory in itself, which is sufficient, by the application of existing facts and conditions ascertainable on reasonable inquiry, to point out the specific tract intended to be described will operate to charge a purchaser with notice.</p> <p>3 Same. Where the first and second mortgages contained similar and indefinite descriptions of the land, but the second expressly referred to the first and was made subject thereto, the filing of a third mortgage for the purpose of correcting the description in the first made a record sufficient to charge a subsequent purchaser of the land described in the third mortgage with notice of the second mortgage.</p>

<p>Appeal from Mahaslca District Gourt. — Hon. Byron W. Preston, Judge.</p> <p>Action to recover tbe consideration paid in the purchase of a mare. Plaintiff alleged a warranty of soundness, breach of such warranty, and rescission on account of such breach. Defendant interposed a counterclaim, for the keeping of the mare after she was returned to him in pursuance of the attempted rescission. There was a verdict against the plaintiff as to his claim, and in favor of defendant for expense of keeping, and from judgment on this verdict the plaintiff appeals. —</p>

— Hon. B. W. Preston, - Judge. Action for goods ordered by the defendant and delivered by the plaintiff. There was a directed verdict for the plaintiff, and judgment thereon. Defendant appeals.

— Hon. K. E. Wilcockson, Judge. In a proceeding for probate of will, contested on grounds of undue influence and want of mental capacity, there was a verdict for contestants, with a special finding in their favor on each ground. From judgment on such verdict the proponents appeal. —

<p>Appeal from Lucas District Court. — Hon. D. M. Anderson, Judge.</p> <p>Action at law to recover damages. Judgmenj; for plaintiff, and defendants appeal. Tbe material facts are stated in tbe opinion. —</p>

<p>Appeal from Poweshieh District Court. — Hon. K. E. Wilcockson, Judge.</p> <p>This is an action on quantum meruit for balance due for the value of services rendered by plaintiff to defendant. The defendant admits the rendition of services, but avers that the same were rendered in pursuance of an express agreement that they should be paid for at the rate of $1 per day, and that the amount so agreed upon was so paid in full by the defendant to the plaintiff from time to time as the services were rendered. There was a trial before a jury. Verdict and judgment for the plaintiff. Defendant appeals. —</p>

— IIon. Frank W. Eichelbeeger, Judge. This is an action t.o establish and quiet title to certain real and personal property of which G. J. McDowell, the husband of the plaintiff, died seised. Defendant denied plaintiff’s title, and in a counterclaim asked that her title • to an undivided one-half of the property be established. The trial court granted plaintiff the relief prayed, and defendant appeals. —

— Hon. W. S. Withrow, Judge. Action to restrain defendant from constructing a retaining wall along or near the east side of South Main Street, in said city, tbe complaint being that the proposed wall departs from the east side of the street, and is to be constructed on land not belonging to the city. After the hearing upon the merits, the' court on defendant’s motion dismissed plaintiffs’ petition, and the plaintiffs appeal. —

<p>1 Highways: hedge fences: trimming: action to enforce same: pleading and proof. The statute requiring the trimming of hedge fences along public highways directs the road supervisor to see that it is enforced, except where the one district system for the township has been adopted and then the duty devolves upon the trustees; but where the trustees 'may maintain an action to compel the trimming of á hedge by the landowner, which is not conceded, they must allege and prove the adoption of the one district system.</p> <p>2 Same: nuisance: evidence. Conceding that township trustees in their official capacity may maintain an action to require the trimming of highway hedges, on the ground that they are a public nuisance, the evidence on that question in the instant case is sufficient to support an adverse finding, and the judgment will not therefore be disturbed on appeal.</p>

<p>Appeal from Jefferson District Court. — IIon. D. M. Anderson, Judge.</p> <p>Indictment for cheating by false pretenses. " Trial to a jury, and verdict of guilty. Motion for a new trial overruled, and from the judgment entered on the verdict the defendant has appealed. —</p>

<p>Appeal from Woodbury District Court. — Hon. F. R. Gaynor, Judge.</p> <p>Motion to set aside a default was sustained, and tlie plaintiff appeals. —</p>

— Hon. - H. M. Townee, Judge. Action to subject the homestead of defendants, who are husband and wife, the property having been acquired with the husband’s pension money, and at his request conveyed to the wife, to the payment of a judgment recovered by plaintiff against defendants after the acquisition of such homestead, but on an indebtedness antedating such acquisition. After a trial on the merits the court dismissed plaintiff’s petition, and he' appeals. —

— Hon. K. E. Wmcockson, Judge. Action for balance of $35 alleged to be due. resulted in a judgment for defendant. On the trial judge’s certificate the . plaintiff has appealed. —

— IIon. W. S. Witiirow-, Judge. Action in equity to restrain the defendant city and its officers from levying special assessments for the expense of certain street paving. The trial court dismissed the bill, and plaintiffs appeal. —

— ITon. Hugh Brennan, Judge. Action to determine a disputed boundary line and quiet title. Decree for defendants, and plaintiff appeals.

— Hon. A. B. Thornell, Judge. Action at law to recover damages to crops by overflow occasioned by the alleged negligence of defendants. Judgment for plaintiff, and defendants appeal. —

<p>1 Taxation: erroneous sale: official record of same: rights of owner. Where a tax payer has paid the taxes demanded of him but the treasurer gave him a receipt covering an incorrect description by omitting a portion of the premises, and after sale but before time for redemption expired he discovered the error and made a notation on the tax record of the fact that the sale was erroneous, as authorised by statute, the owner can rely on the record so made; and the treasurer has no authority to erase the entry and issue a deed to the purchaser without notice to the owner and an opportunity given for him to protect his rights.</p> <p>2 Same: negligence: equitable relief. A tax payer is not to be charged with negligence simply because he relies upon information given him by a county treasurer respecting the taxes he is required to pay, and if, having made timely effort to pay the same or to redeem from a sale, he is misled by the conduct or mistake of the officer a court of equity will grant him relie*</p>

<p>Appeal from, Scott District Court. — Hon. J. W. Bollinger, Judge.</p> <p>The plaintiff brought this suit to recover rent due from the defendant. She counterclaimed for damages to her possession. There was a directed verdict for the plaintiffs, and the defendant appeals. —</p>

<p>Appeal from Black Hawk District Court. — IIon. Franklin C. Platt, Judge.</p> <p>The opinion states the case. —</p>

<p>1 Accident insurance: notice and proof: special finding: inconsistency. Notice and proof of injury, that an insured was on a railroad track when struck by a train and injured, are not inconsistent with a special finding that he was crossing a track on a public highway and entitled to recover the full amount of his indemnity, although the policy provided a smaller indemnity for injuries received while on the roadbed of a railroad, except while crossing at a public highway.</p> <p>2 Same: proof of injury: waiver. Where the answer in a suit on an accident policy admits the waiver of any further proof of injury, no additional proof can be insisted upon however inadequate that made may be.</p> <p>3 Same: injury while upon railroad track: burden of proof. Where an accident policy provides for less indemnity in case of injury while on the roadbed of a railroad, except when crossing at a public highway, the burden is on the insurer to show that the accident occurred at a place not in a public highway, and this burden is not shifted by a simple showing that the accident occurred upon a railroad track, thus requiring insured to show that it happened at a highway crossing; and the burden is on the insurer to show that the accident was the result of voluntary or- unnecessary exposure to danger.</p> <p>4 Same: limitation of right of action: grounds of recovery: amendment: plea in bar. Although an accident policy provides that no action shall be maintained unless brought within six months after termination of disability or after the injury assumes a permanent character, still the petition in an action brought more than six months after the injury, on the theory that it was of a permanent character, may be amended so as to claim recovery for a temporary injury; and proof that insured is gradually improving and likely to recover will support a finding that the injury had not assumed a permanent character, and thus a plea of the 'contract in bar of the action will be avoided.</p> <p>5 Admissions: pleadings as evidence of. Pleadings which have been superseded may be offered in evidence for the purpose of establishing admissions of the party, but such evidence is not conclusive and when explained may go to the jury for what it is worth.</p> <p>6 Depositions: waiver of objection. A party who acquiesces in the offer of a deposition in evidence waives any objection there might have been to the custody, preservation and notice of filing the same.</p> <p>7 Accident insurance: weekly benefits : computation. Where the by-laws of an accident association provided that weekly benefits should not mature until a stated time after the filing of satisfactory proofs, and it admitted waiver of such proofs, liability for the benefits' should be computed from the date of waiver.</p>

<p>1 Bill and notes: consideration: direction of verdict. A promissory note imports a consideration,- and where there was no evidence of want of consideration and plaintiff had shown that defendant executed and delivered the note as his individual obligation, the question of his liability was for the jury. ,</p> <p>2 Same: pleading. The plaintiff in suing upon a note is not required to plead a consideration for the instrument; nor is he required to state it in reply to defendant’s plea of want of consideration.</p> <p>3 Same: execution: agreement of parties. An agreement be-tween the parties that it was not to become binding on the maker until signed by others must be mutual, for if the agreement was that of one only it would not bind the other.</p> <p>4 Bills and notes: consideration. Extension of time of payment to the principal debtor; acceptance of a note as security for a debt or forbearance to sue upon present claims; or a note given for the debt of another with an agreement express or implied to extend the time of payment is sufficient consideration for the note; so that where a park association purchased lumber of plaintiff and being unable to pay, the defendant, a stockholder and secretary of the association, gave his note therefor payable in one year, either as his individual obligation or to be signed by other stockholders also, and thereafter the association was not regarded as a debtor, or, if a debtor, the time of payment was extended, the note was supported by a consideration.</p> <p>5 Same: statute of frauds. Where a promissory note was executed in consideration of the extension of the time of payment of the debt of another,, and the only question in dispute was the sufficiency of the consideration, the statute of frauds was not involved.</p> <p>6 Same: extension of payment: implied agreement. The circumstances in the instant case are held sufficient to support an implied agreement by the creditor to extend the time of payment of the debt of another upon the execution and delivery of the note in suit.</p>

— Hon. J. 3?. Oliver, Judge. Action for damages for false representations in the sale of land. Verdict for plaintiff for $13,000. Judgment on tbe verdict for $7,000, plaintiff remitting. Defendant appeals. —

<p>1 Dismissal of action. Where the court dismisses a case on its own motion it should make a record of the ground of its action, but although failing to do so a presumption obtains in favor of the ruling, and a reversal will not be ordered unless upon the whole case there is no ground to support it.</p> <p>2 Same: want of prosecution: reinstatement. The court has power to dismiss a cause for \yant of prosepution independent of any statute; and where a case remained on the docket for five years after issue was joined and plaintiff and his attorney were in the court room but made no objection to the order of dismissal the court was justified in refusing a motion for reinstatement.</p>

— Hon. J. R. Whitaker, Judge. The appellants appealed from an assessment of benefits to the district court where their appeal was dismissed, and, from that judgment, they appeal to this court. —

<p>Appeal from Wapello District Court. — HoN. C. W. VerMILLION, Judge.</p> <p>The opinion states 'the ease. —</p>

<p>Conditional sale: forfeiture: waiver: equitable jurisdiction. Although a contract for the sale of personal property reserving title in the seller until the purchase price was fully paid, authorized a forfeiture in case of default in payment, such right of forfeiture was not the exclusive remedy, but could be waived, and a suit in equity brought to enforce the claim as a lien against the property: as where there was a dispute as to the balance due and the seller waived his right to forfeit the contract, asked to have amount due ascertained and that he retain his lien on the property therefor, his cause was triable in equity and a motion to transfer to the law docket was properly overruled.</p>

— HoN. Clieeord P. Smith, Judge. • Suit in equity for tbe specific performance of an option contract to convey land. Tbe trial court dismissed tbe petition on tbe theory that plaintiff did not exercise bis election within the time fixed by tbe option to purchase. Plaintiff appeals. —

— IIoN. C. B. Bradshaw, Judge. This is an action for damages against the defendant as a common carrier for negligent delay in the delivery of a consignment. The damages claimed consisted of a number of items. There was a trial to the court without a jury. Judgment for the plaintiff for a part of his claim only. Both parties appeal. The defendant first perfected its appeal, and is designated as appellant.- —

— Hon. H. K. Evans, Judge. Action in equity to recover on an insurance policy. There was a judgment for the plaintiff, from which the defendant appeals. —

— Hon. A. D. Bailie, Judge. Action in equity to quiet plaintiff’s title to land. The defendants deny plaintiff’s claim of title, and by cross-bill ask that the same be quieted in themselves. Decree for plaintiff, and defendants appeal. —

— Hón. J. W. Bollinger, Judge.' Suit in equity to establish and quiet plaintiff’s title to certain real estate in Scott County, Iowa. The trial court granted the relief prayed in plaintiff’s petition, and defendants appeal. —

— Hon. Edmund Niohols, Judge. Suit in equity to establish, set aside and quiet in plaintiff her title to one-third of certain lands described in the petitions. Plaintiff bases her claim upon the fact that she is the widow of J. II. Johnston, deceased, who died December 27, 1904, that Johnston at one time owned the lands in controversy, and that she, plaintiff, never relinquished her dower interest therein.

<p>1 Appeal: service of notice: necessary parties. In an action by a judgment creditor to set aside a deed as void for want of consideration, or as being in fraud of creditors, and to subject the property to the satisfaction of his judgment, the grantor while a proper party is not a necessary party to an, appeal, and failure to serve him with notice will not deprive the appellate court of jurisdiction.</p> <p>2 Fraudulent conveyances: creditors’ suit. A city in exercising its option to repurchase land conveyed to a corporation for the purpose of erecting and maintaining a public library, becomes a purchaser as to the amount paid in excess of its claims against the corporation, and not a mere creditor; and where it knew or had reason to believe that the corporation was seeking to hinder and delay other creditors in making the conveyance, it took the property in excess of its. claims as trustee and subject to the demands of the other creditors. In the instant case it is held that the city knew of the plaintiff’s judgment against the corporation and that its officers had either actual or constructive knowledge of the purpose to defraud.</p>

— Hon. W. II. McHenry, Judge. Deeendant was indicted for the crime of selling, exchanging, delivering and having in his possession, with intent to sell, exchange and expose and offer for sale, misbranded and adulterated food. A jury was waived, and upon submission to the court the defendant was found not guilty. From the judgment the State appeals. —

<p>Appeal from, Polk District Court. — IIon. A. H. McVey, Judge.</p> <p>Action in. equity to- confirm an easement as appurtenant to the plaintiff’s premises and to enjoin the defendants from interfering with the plaintiff’s use thereof. The plaintiff was awarded a part of the relief prayed, and both parties appeal. The defendants will be designated herein as apjiellants. —</p>

— IIon. William Hutchinson, Judge. Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals. —

<p>Appeal from Hamilton District Court. — Hon. W. D. Evans, Juolge.</p> <p>Action for money expended in the care of defendant’s parents. Verdict was returned in favor of Ered Hollis by the direction of court and against Frank Hollis on submission to the jury. Judgment was entered thereon, and Frank Hollis appeals. —</p>

— Hon. Jesse A. Hiller, Judge. Action to recover balance due- on a written instrument for the payment of a part of the purchase price for certain city lots. On trial to the court without a jury, judgment was rendered against both defendants, and they appeal. —

— Hon. H. M. Wright, Judge. Action to recover from defendant Omstead and- his grantees, E. E. and E. L. Beshy, a tract of land alleged to have been procured by Omstead as the agent of plaintiff in fraud of plaintiff’s rights.

— IIon. R. M. Wright, Judge. Action in equity asking that a deed absolute in form be declared a mortgage and canceled. Judgment for defendants. Plaintiff appeals. —

Hugh Brennan, J udge. ActioN to quiet title to a small parcel oí Luid. Defendant claimed an interest in the land as purchaser thereof at sheriff’s sale under a judgment in his favor against Belle Beeves, whom he alleged to have been the owner of the property at the date of the recovery of his judgment against her. There was a decree quieting title in defendant against the plaintiff, but allowing plaintiff the right to redeem from defendant’s execution sale.

<p>1 Mortgages: foreclosure: subsequent action on note: adjudication. Defendant gave plaintiff a note containing no provision by which the payee might declare it due before maturity, and gave the surety on the note a mortgage to secure him against liability which did provide that in case of default in payment of the note, interest or taxes the whole amount might be declared due. The surety assigned the mortgage to the payee of the note who foreclosed for the full amount for which the surety was liable. Held, that as the mortgage did not authorize the payee to declare the note due prior to its maturity the foreclosure of the mortgage was not an adjudication of the right to sue on the note ■ after its- maturity.</p> <p>1 Same. The determination by the Supreme Court in an action xfor interest on a note, that a judgment in a prior action was not an .adjudication that the note was due, is binding in a subsequent action on the note after its maturity, whether right or wrong.</p>

— HoN. C. G. Lee, Judge. Action at law to recover for board furnished by plaintiff to John Myott, husband of the defendant, Jennie Myott. There was a directed verdict and judgment for the defendant, and plaintiff appeals. —

— Hon. W. D. Evans, Judge. The plaintiff was assessed for benefits alleged to have been received by him from the establishment of a drainage ditch and attempted an appeal to the district court, but his appeal was dismissed, and, from that judgment of the district court, he appeals to this court. —

<p>Appeal from Boone District Court. — HoN. W. D. Evans, Judge.</p> <p>The material facts are stated in the opinion. —</p>

<p>1 Accident Insurance: cause of death: presumption. Where the cause of death is an issue the presumption is against suicide.</p> <p>2 Same: circumstantial evidence: sufficiency. That the circumstances relied upon in proof of an accidental death may furnish any evidence of the conclusion sought to be drawn therefrom, the facts which the evidence tends to prove must be of such nature and so related to each other that the conclusion is the only one which can fairly and reasonably be drawn; it is not enough if they are consistent therewith, .if equally consistent with some other conclusion. Evidence that the death of insured was due to a stray bullet is held insufficient to take the issue to the jury.</p>

<p>Appeal from Wright District Court., — Hon. W. D. Evans, Judge.</p> <p>The defendant was convicted of assault with intent to rape, and appeals. —</p>

<p> Certiorari from Davis District Court. </p> <p>This is an original proceeding by certiorari to review the action of defendant, as judge of the District Court of Davis County, in adjudging the plaintiff guilty of contempt in violating a decree secured in a proceeding by injunction to restrain him from selling or keeping for sale any intoxicating liquors in violation of law within that judicial district, the charge in the proceeding for contempt being that he had illegally kept and sold intoxicating liquors in his place of business in the city of Bloomfield. After hearing the evidence, the court found defendant guilty of the contempt charged, and imposed upon him a fine of $300 and costs.</p>

<p>Homestead: election of widow: agreement to will: evidence. The occupancy of property by a widow, including the homestead, under an agreement of the heirs of deceased to waive their legal right to distributive shares therein during her lifetime, will not establish an election on her part to take a homestead interest in the property, so as to entitle the heirs to enforce the agreement against her as a waiver of her right to a distributive share: nor will the arrangement be given effect as an agreement by the widow to make a will devising her interest in the property in equal shares to her children.</p>

— IIon. James A. Howe, Judge. Action in equity for an injunction to restrain the defendant Brown from certain alleged misuse of leased premises and for damages. Petition dismissed, and plaintiff appeals. The material facts are stated in the petition. —

— Hon. W. H. McHenry, Judge. Action at law to recover damages for injuries received by plaintiff while trying to hold and tie a horse that had been frightened by a steam traction engine, which it is. claimed defendant was negligently moving on a public street. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.- —

<p>Appeal from■ Pollc District Court. — Hon. Hugh Brennan,- Judge.</p> <p>Action for a writ of mandamus to compel the board of supervisors to order the issuance of a refund warrant for certain interest alleged to be due the plaintiff on money illegally received from it. A demurrer to the petition was sustained, and the plaintiff appeals. —</p>

<p>1 Wills: construction: interest as part of legacy. The intention of a testator as gathered from the provisions of his will when considered together will govern in its construction; so that while as a general rule interest on legacies does not commence to run until after or at the death of testator, still where the testator has Clearly provided that a specific legacy should be increased by interest on the sum from a certain date prior to his death, the general rule does not apply.</p> <p>2 Same. In the instant case the will provided that certain legacies should be increased by interest from a certain date prior to testator’s death, and by other provisions that the legacies should be paid from the proceeds of certain lands to be sold by a devisee to whom they were given subject to the legacies, or who should pay interest from such date, but none of the legacies were to be paid until the youngest legatee had reached his majority. Held, that while the provisions relating to the sale of the land were uncertain as to payment of interest, still it would not overcome the direct provision for payment thereof from the specified date.</p> <p>3 Estates of decedents: executors report: amendment: consider-ation. An amendment to an executor’s report filed on the day the case is submitted, which is denied and there is no evidence to support it, will not be considered.</p> <p>4 Inventory of estates: duty to file. An executor is required by statute to file an inventory of the estate before he is discharged, and it is the duty of the court to order him to do so, irrespective of who makes the complaint.</p>

— Hon. B». M. Wright, Judge. , Suit in equity to rescind a contract for the sale of real estate; to recover the property conveyed by plaintiff to defendant Wehrheim; and for other equitable relief. Defendant Moorehouse was not served with notice; defendant Bolster filed a general denial; and defendant Wehrheim filed a separate answer, as did defendants Waddell.

— Hon. Hugh Brennan, Judge. Action in equity to enjoin the collection of a judgment against a surety. There was a decree in the lower court dismissing the petition. The' plaintiff appeals.—

<p>1 Intoxicating liquors: nuisance: abatement: closing of peemises. Upon the establishment of a liquor nuisance either in a civil or criminal case the order of abatement to be entered under the statute as a part of the judgment requires the effectual closing of the building for any' purpose for the period of one year: there is no authority for decreeing that the' building shall be closed so far as the sale of liquor is concerned, and at the same time used for other lawful purposes, unless released by giving bond as provided in the Code.</p> <p>2 Same: Certiorari: failure to return record: review. Upon ceriiorari to review contempt proceedings in which defendant was not found guilty of violating an order restraining the illegal sale of liquor, where no transcript of the record upon which the findings were based was returned and no affirmative finding upon which the inference of guilt could rest, the discharge of accused must he regarded as conclusive of the matter.</p> <p>3 Certiorari: rehearing: costs. On a rehearing in certiorari the cause must be submitted on the record as 'it stood at the former submission, although affidavits have been since filed, and such affidavits will be stricken at the cost of the party filing the same.</p>

<p>Appeal from Boone District Gourt. — Hon. C. G. Lee, Judge.</p> <p>Action in equity to have a strip of ground about a half mile long and two rods wide declared to be a legally established highway, and to require the defendants to remove fences therefrom. There was a judgment for the defendants, from which the plaintiffs appeal. —</p>

<p>Appeal from Story District Court. — Hon. B. M. Wright, Judge.</p> <p>This is an action for slander. Judgment for the plaintiff, and defendant appeals. —</p>

<p>Municipal corporations: vacation of streets: ordinances: construction of street railway: damages. An ordinance vacating a portion of a street, granting its use for right of way purposes and conveying the fee to the state, is not objectionable as embracing more than one subject, since its purpose is to convey the fee subject £0 the éasement: and as the street when vacated becomes in effect private property of the state subject to the right of way, the railway company may construct and operate its line over the same without procuring the usual franchise in such cases, and without compensation in damages to abutting property owners. Weaver, J., and Evans, C. J., dissenting.</p>

<p>Appeal from Polk District Court. — Hon. James A. Howe, Judge.</p> <p>This is au action in equity asking the reformation of a real estate contract and tbe recovery of money alleged to have been overpaid for said property. There was a decree for the'plaintiff, from which the defendant appeals.</p>

<p>Appeal from. Union District Court. — Hon. H. M. “'owner, Judge.</p> <p>Action for loss under insurance policy resulted in a judgment as prayed. The defendant appeals. —</p>

Polls District Gourt. — Hon. Jesse A. Miller, Judge. Action to recover possession of au automobile, claimed by plaintiff as owner and alleged to be in the possession of the defendant as bailee.

Appeal •from Franklin District Court. — Hon. R. M. Wright, Judge. Action for damages resulting in a verdict directed for defendant and judgment entered thereon. The plaintiff appeals. —

<p>Appeal from Polk District Court. — Hon. Jesse A. Miller, Judge.</p> <p>Action at law to recover damages for the death of Y. D. Kern, due, as is alleged, to defendant’s negligence in operating its street cars on one of the streets in the city of Des Moines. At the conclusion of plaintiff’s evidence the trial court on motion directed a verdict for the defendant, and plaintiff appeals. —</p>

<p>Appeal from Pottawattamie District Court. — Hon. O. D. Wheeler, Judge.</p> <p>Action at law to recover damages of defendant for failure to furnish an agreed current of electricity for the purpose of operating an elevator in a building in the city of Council Bluffs owned by the Groneweg & Schoentgen Company. Trial to a jury, verdict and judgment for plaintiff, and defendant, appeals. —</p>

- — Hon. E. M. Powers, Judge. This is an appeal from the action of the district court of Greene County in confirming and establishing a joint drainage district in Greene and Calhoun Counties created by the action of the boards of supervisors of said counties upon proper petitions filed according to law, which drainage district includes certain lands belonging to Albert Head, the appellant. —

<p>Appeal from Linn District Court. — Hon. E. O. Ellison, Judge.</p>

— Hon. James A. Hows,. Judge. Suit -to recover the possession of certain real estate, for an accounting of money had and received by defendant as payments upon a contract for the purchase of real estate, and for rents and profits of the land during 'the time defendant was in the possession thereof. Decree dismissing plaintiff’s petition, and she appeals.* —

<p>Appeal from Story DistHct ■ Court. — Hon. C. G. Lee, Judge.</p> <p>Action at law upon a promissory note, aided 'by an attachment under which A. C. Enfield and his wife were garnished as debtors of Clara M. Young. ' The State Bank of Maxwell intervened, claiming' that it was entitled to the money due from the garnishees. The case was tried to the court, resulting in a judgment for the garnishee and intervener, and plaintiff appeals. —</p>

- — Hon. O. G. Lee, Judge. Suit in equity to subject certain personal property to ■tbe payment of a judgment beld by plaintiff ,against Herman L. Schultz, to set aside a mortgage upon said goods held -by H. C. Schultz, for the appointment of a receiver, and for other equitable relief.

— Hon. Hugh Brennan, Judge. Action for damages for personal injuries to plain-' tiff’s intestate, resulting in ber death. Verdict and judgment for the defendant. Plaintiff appeals. —

— Hon. W. H. McHenry, Judge. Action at law to recover - damages for injuries received by plaintiff while in defendant’s employ. The defenses were assumption of risk, contributory negligence, and a claim that the defect which resulted in the injury was one of plaintiff’s own making, which it was his duty to discover and repair. At the conclusion of plaintiff’s evidence, a verdict was directed for defendant, and plaintiff appeals. —

— Hon. A. N. Hobson, Judge. Action in equity to establish plaintiff’s title to a certain tract of land, under an oral contract with John Milke, deceased, as against the defendants, who are alleged to claim some interest in the property described, as heirs of said John Milke. There was a decree for the defendants, and plaintiff appeals. —

District Gowrt. — Host. A. D. Bailie, Judge. This action was originally brought by S. B. Fritz against C. M. Fritz for dissolution of partnership, the appointment of a receiver, and an accounting. A receiver was appointed by agreement of the parties, and subsequently a stipulation of settlement of all matters involved in the suit was entered into.

<p>Appeal from Scott District Court. — Hón. A. B. Barker, Judge.</p> <p>jack and TI. S. McCaffrey and C. W. Major became indebted to plaintiff for lumber in the sum of $324.76 and for material to the Penn Oil •& Supply Company in the sum of $63.31, which was assigned to plaintiff. On December 8, 1904, the defendant entered into a written agreement with said persons to pay .the same. It appears that- they were in partnership in the opening and improvement of a coal mine in Illinois with a view to its operation. The Ilenepin Coal Company had been incorporated by them, but neither the property nor their lease of the land had been transferred to it, the land belonging to John McCaffrey Towing & Mining Company, of which defendant was principal stockholder. According to the recitals in the contract, the lease has been forfeited. All the property acquired by the parties first- mentioned, together with the lease, tracks, tools, machinery, and the like used in connection with the mine, were turned over to defendant in consideration of his agreement to pay the’ debts of the co-partnership. Several defenses were interposed, all of which were resolved by the court and jury against defendant, and he appeals. —</p>

— iloN. A. D. Bailie, Judge. ActioN to foreclose three mortgages. The defendant pleaded a counterclaim. The cause was referred, and to the report of the referee exceptions were filed. The district court’s rulings thereon were approved, save that on exceptions to the eleventh finding. As to that the decree was reversed and the cause remanded for proceedings not inconsistent with the opinion. 132 Iowa, 370.