Volume 142 — Iowa Reports

<p>Bills and notes: duress as a defense: evidence: direction of verdict. - There may be a duress of property as well as of the person which is provable in defense of a contract induced thereby, and while defendant has the burden on this issue he is not required to show a manifestation or .apprehension of physical violence. In the instant case the evidence of duress in defense of a suit on a promissory noté is held sufficient to take the issue to the jury; and -it is also held that the court erred in summarily directing a verdict for plaintiff at the close of defendant’s testimony, and without giving him an opportunity to offer additional evidence in corroboration of his own, on the theory that defendant had failed to show any manifestation of physical violence.</p>

<p>School districts: incorporation of town embracing several dis-1 tricts : effect. The original incorporation as a town of territory embracing parts of several independent school districts has no effect upon the boundaries of the school districts, but they continue the same as before the incorporation; although by the provisions of Code section 2794 a single independent district may be formed including all of the incorporation and contiguous territory.</p> <p>Same. Nor does Code section 2793-a provide that the boundaries of 2 a school district shall be extended and become coextensive with the limits of a town by virtue of its incorporation; it applies where the limits of a municipality already incorporated are extended.</p>

— Hon. C. G. Lee, Judge. This is an action by plaintiff, a real estate agent, to recover a commission. At tbe close of tbe evidence there was a directed verdict in his favor. Tbe defendant appeals.

— Hon. Hugh- Brennan, Judge. This is a proceeding brought by the plaintiff to enjo;n the defendant from maintaining a place for the unlawful sale of intoxicating liquors. There was a trial to the court. At the close of the evidence for the plaintiff, the court dismissed the suit on defendant’s motion and entered a judgment for costs against the plaintiff. Plaintiff appeals.

District Gowrt. — Hon. A. H. McVey, Judge. Suit in equity, brought by the State, on the relation of the Attorney General, to wind up the affairs of the defendant, a corporation organized under the laws of this State, for the appointment of a receiver, and for other equitable relief.

<p>1 Correction of court records. The court has express power under Code section 243, to correct a correction of the record already made, as to the date of the judgment entry, where the first correction was erroneous; the first correction not amounting to an adjudication of the date of the judgment.</p> <p>2 Judgments: record of on Sunday. The spreading of a judgment upon the record by the clerk is a ministerial and not a judicial act, and is not void because performed on Sunday.</p>

<p>1 Gift of real property: conveyance: mental capacity of grantor. One may legally make a gift of land; and where the grantor fully comprehends the nature and extent of his estate, recollects the objects 'of his bounty and appreciates the nature of the transaction, he is mentally capable of making a conveyance.</p> <p>2 Same: burden of proof. The burden of establishing the menial incapacity of a grantor is upon the party asserting the same.</p> <p>3 Deeds: delivery: acceptance. A deed conveying a present interest, recorded and afterwards in the possession of the grantee, is • shown to have been delivered; and where the grantee is a minor he will be presumed to have accepted the same.</p>

— Hon. N. W. Macey, Judge. The defendant, was convicted of breaking and entering a building with the intent to commit larceny, and appeals from a judgment ordering his confinement in the penitentiary.

<p>Gifts inter vivos: evidence. Proof of the execution of an undelivered deed conveying land from a father to his son, which he afterward devised to him for life; that the son was in possession with expressions from the father of intent that he should have the land in a division of the estate; and that he paid taxes on the land out of the rents, but made no valuable improvements nor parted with any consideration, was insufficient to establish a gift inter vivos.</p>

— Hon. J. H. Preston, Judge. This is an appeal by defendant from an order entered by a judge in vacation in summary proceedings under the provisions of sections 4072 to 4078 of the Code.

— Iíon. O. D. Wheeler, Judge. Action to recover for goods sold and delivered. Defendant admitted the account, hut pleaded a counterclaim for an alleged breach of an agency contract, whereby plaintiff agreed to give him. the exclusive sale of cream separators in Council Bluffs and vicinity. The case was tried to a jury, resulting in a verdict and judgment for defendant, and plaintiff appeals.

— Hon. D. M. Anderson, Judge. Action to recover for tbe value of services rendered. by plaintiff to defendant in part performance of a contract of employment. Items were set off and counterclaimed for defendant. There was a verdict for plaintiff, and from judgment thereon, defendant appeals.

Original action in certiorari to review the orders and judgment of the district court in certain proceedings instituted for the establishment of a drainage district.

— Hon. W. R. Green, Judge. Action to recover damages for personal injuries alleged to have resulted to plaintiff from a jar or shock received while a passenger in a car of the defendant street railway company. There was a verdict for plaintiff in the sum of $400, and from the judgment on such verdict plaintiff appeals.

— Hon. Z. A. ■ Churci-i, Judge. This is an action brought by plaintiff to recover a broker’s commission for procuring for defendant a customer for the purchase of a certain livery stock owned by the defendant. There was a verdict' for the plaintiff. Defendant appeals.

— Hon. A. N. Hobson, Judge. Dependant was charged in the indictment with causing the death of a pregnant woman by administering to her drugs, and using upon her an instrument for the purpose of producing, a miscarriage;' sa°id miscarriage not being necessary to save her life.

— Hon. A. B. Ti-iornell, Judge. Action in equity to reform certain policies of fire insurance and to recover for losses alleged to Have been incurred thereunder.

— Hon. M. D. Pobteb, Judge. Action at law to recover damages for injuries received by plaintiff while passing over and along a sidewalk in the defendant' city. There was a trial to a jury, resulting in a verdict and judgment for plaintiff in the sum of $6,000, and defendant appeals.-

— Honí R. P. Howell, Judge. Action at law upon a policy of fire insurance. To .defendant’s answer pleading defenses in four separate divisions plaintiff demurred. This demurrer was overruled, and, plaintiff electing to stand thereon, judgment was rendered against him for costs, and he appeals.

— Hon. A. B. Thornell,' Judge. Action for partition of certain real property. The defendant denied any interest of the plaintiff in the ¡property, and asserted in herself full ownership, and she asked to have her title quieted as against plaintiff. After a hearing on the merits, the court dismissed plaintiff’s petition, and he appeals.

— Hon. James A. Howe; Judge. This is an action in equity for the recovery of assets of the defendant Globe Coal Company, and to have the same applied to the payment of a judgment against said company. The Globe Coal Company was a copartnership, consisting of one Bothne and defendant Wheeler. The proceeding is directed against the defendant Wheeler alone on the theory that he is in possession of the assets of the company.

— Hon. N. W. Macy, Judge. Action to have a receiver appointed to wind up the affairs of the defendant as a pretended corporation or a copartnership, and to have its funds disposed of as justice and equity might' require. There was a trial on the merits, at the conclusion of which the court dismissed plaintiffs petition, and he appeals.

— Hon. Wm. HuTcniNSON, Judge. Suit at law to recover damages for flooding -farm lands. The defendant appeals from a judgment for the plaintiff.

— Hon. William G. Thompson, Judge. This is an action in equity brought under the provisions of section 4087 of the Code to subject certain property to the lien of certain judgments owned by appellees herein. From the findings of the trial court the defendants . appeal.

Tris plaintiff acquired lot 13 and the north half of lot 14, in block 51, Storm Lake, February 20, 1904, of W. E. Brown, on which personal property taxes had been levied. As the county treasurer threatened to sell the lots at tax sale, he was restrained from doing so in a suit by plaintiff on several grounds stated in the petition.

— Hon. W. B. Quarton, Judge. This is an original action to set asido the probate of a will. There -was a verdict and judgment against the validity of the will, and the probate thereof was set aside. The defendant Patrick McBride appeals.

<p>1 Corporations: notice of incorporation: proof of publication: exemption of private property. A notice of incorporation reading “the private property of stockholders was exempt from corporate suits” is held to be a substantial compliance with the statute, the word “suits” instead of “debts” not being fatal to the notice. The filing of an affidavit of publication of the notice with the Secretary of the State is also held to be directory only, and not essential to the validity of the incorporation.</p> <p>2 Corporations: diversion of funds: fraud: liability of stockholders. Defendant sold his stock in a corporation to another stockholder, accepting in payment a certificate of deposit in favor of the purchaser, but assigned to defendant. The certificate was issued upon the execution of a note of like amount to the bank by the corporation, of which defendant had no knowledge. There was no evidence of the insolvency of the corporation, or that the execution of the note’ rendered it insolvent, and it was shown that the stock was cancelled on the books of the corporation. Held, that there was not a violation of Code, section 1621, prohibiting a diversion of corporate funds, but that the transaction amounted simply to a retirement of the stock and was not a fraud upon creditors of the corporation.</p> <p>3 Same: forfeiture of franchise: liability of stockholders for corporate debts. The mere forfeiture of a corporate franchise does not of itself create a partnership of the stockholders, as there must be some agreement of the parties either express or implied to constitute a partnership; nor does a continuation of the business in the corporate name create a personal liability of the stockholders, except such as participate therein; hence a stockholder acting simply as a purchasing agent for the corporation, and in no manner participating in its management, was not personally liable for a loan of money made by it, after a forfeiture of its franchise by nonuser, of which he had neither knowledge nor benefit.</p> <p>4 Appeal: right to review. Where the trial court in the course of a written opinion recited his findings of fact and thereupon dismissed the petition, the defendant was not entitled to appeal from the overruling of his motion to strike certain statements from the opinion, as not sustained by the evidence.</p> <p>5 Same. Findings of fact are not essential to the review of a judgment, and when made may be assailed by the appellee as not warranted by the evidence, in order to sustain the judgment.</p>

— Hon. Z. A. Church, Judge. Suit to recover damages for fraud in the exchange of properties. There was a directed verdict for the defendants, and a judgment thereon against the plaintiff for costs, and he appeals.

— Hon. J. R. Whitaker, Judge. Originally this was an action at law brought upon a promissory note made and executed by defendant to plaintiff on July 29, 1904. The action was aided by an attachment which was levied upon certain real estate.

— Hon. C. B. Bradshaw, Judge. Action upon a policy of fire insurance issued originally to J. W. Nash and by him assigned with the knowledge and consent of the defendant company to plaintiff. The loss is admitted, but defendant relies upon a breach of the conditions of the policy with reference to incumbrances on the property insured.

— Hon. E. O. Ellison. Judge. Action for separate maintenance, which by amendment during trial was converted into an action for divorce. Defendant filed a cross-bill, and on the issues joined the case was tried to th'e court, resulting in a decree for plaintiff, and defendant appeals.

<p>Appeal from Dubuque District Court. — Hon. M. O. Matthews, Judge.</p> <p>Action for damages resulted iu a judgment for plain •tiff. The defendant appeals.</p>

<p>Appeal from Johnson District Court. — Hon. R. P. Howell, Judge.</p> <p>This is an action to remove a cloud and to quiet title in plaintiff to certain real estate. Decree was entered for the plaintiff. Defendant appeals.</p>

<p>1 Homestead: distributive share of widow: election. Continued possession of a homestead by a widow is evidence of her election to exercise her homestead right, rather than to take her distributive share, but is not conclusive; and where the whole testimony makes it reasonably clear that she is asserting an interest in the title, rather than a mere right of occupancy, the inference to be derived from the fact ■ of continued possession is overcome: and this is especially true where the homestead is the only property left by deceased and there has been no demand by the heirs for partition or an accounting of rents and profits.</p> <p>2 Same: evidence: communications with a decedent. Heirs of their deceased mother are incompetent to testify in behalf of their grantee, who is also an heir, to conversations with their mother relative to her election to take a homestead interest in the property.</p>

— Hon. K. E. Wilcockson, Judge. This is an action to establish plaintiff’s alleged title in an undivided one-sixth of certain forty acres of land in Mahaska County. The defendant Nancy Caldwell is the widow, and the other defendants are the sons -and only heirs át law, of Alexander Caldwell, who died in 1907. The claim of plaintiff is adverse to Alexander Caldwell, the ancestor of the defendants. There was a decree for plaintiff in the court below, and the defendants appeál.—

<p>Brokers: recovery of commission. An agent employed to effect a sale of real estate on specified terms to designated persons is not required to show the ability of the purchaser to make the purchase to- entitle him to his commission, but he must make the sale on the specified terms; he can not accept a less cash payment than authorized and hold his principal to a payment of the commission.</p>

— Hon. James D. Smytii, Judge. Action to remove the defendant, who is the county attorney of Des Moines County, from office. The trial court sustained a demurrer to the petition, and plaintiff appeals.

— Hon. Franklin O. Platt, Judge. George Wells died in 1906. Shortly afterwards a paper dated June 5, 1902, purporting to.be his last will, was filed for probate. Thereupon Martha Comstock, Kate M. Wheelock and George W. Murray presented a will of prior date and contested the first-mentioned will on the ground that deceased was of unsound mind when he signed it.

— IIon. A. B. Thornell, Judge. This is an action to recover a deposit made by a policy holder, in pursuance of the provisions of his policy, at the time of its issuance. There was a directed verdict for the plaintiff. Defendant appeals.

<p>Appeal from Fayette District Court. — Hon. A. N. Hobson, Judge.</p> <p>Plaintiff's assignor was deputy sheriff of the defendant county for three years, and this action is brought to recover from the county the amount of his salary as fixed by the board of supervisors, namely, $800 per year. There was judgment for the plaintiff, and the defendant appeals.</p>

— PSAon. Jesse A. Miller, Judge. Action to recover amount alleged to be due on three promissory notes resulted in judgment as prayed. Thereafter defendant died, and Casper Schenk was appointed administrator of the estate on the petition of plaintiff. As he was a member of the firm of Schenk & Berryhill, who represented plaintiff in the action, Robert O. Brennen, Esq., was appointed by the court to prosecute this appeal in behalf of the administrator.

L. E. Fellows, Judge, Action in equity to enjoin a sheriffs sale of real estate. Decree granting the relief prayed, and defendants appeal.

— -Hon. A. B. T'hornell, Judge. Action at law to recover moneys alleged to have been collected by the defendant for the account of plaintiff. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. Clifford P. Smith, Judge. Suit at law on a promissory note. Defense, laches and want of consideration. Trial to the court, and judgment for the plaintiff. The defendant appeals.

— IIon. Z. A. Ohurcii, J udge. Petition for a new trial. A demurrer to the petition was sustained, and, the plaintiff electing to stand on his pleadings, judgment was rendered against him for costs, and he appeals.

— Hon. A. D. Bailie, Judge. This is an action for an alleged balance due for services for leasing and managing certain lands for the defendants. At tlie close of plaintiff’s evidence, there was a directed verdict for the defendants and judgment thereon. The plaintiff appeals.

— Hon. D. M. Anderson, Judge. Plaintiff brought his suit in equity to impress a trust upon certain promissory notes, drawn payable to defendant as payee and delivered to plaintiff. The defendant filed a counterclaim, setting up his ownership and right of possession to the notes. Upon motion of the defendant the cause was transferred to the law side of the docket, over the objection of the plaintiff. There was a trial to the court without a jury.

— Hon. A. B. Thornell, Judge. Action to recover damages due to defendant’» delay-in carrying one hundred and seventy-one head of fat steers from Watson, Mo., to Chicago, 111. Defendant denied any actionable delay, and on the issue joined the case was tried to a jury, resulting in a judgment for plaintiff, and defendant appeals.

— Hon. Milo P. Smith, ■ Judge. Action brought by plaintiff, a deputy sheriff of Jones County, to recover from defendant, the sheriff of that county, an amount alleged to be due as compensation for performing the duties of deputy under appointment for the year 1906. There was a judgment for plaintiff in the sum of $72, admitted by defendant to be due, and a judgment for defendant for costs. Plaintiff appeals.—

<p>Appeal from Story District Court. — Hon. H. M. Wright, Judge.</p> <p>Suit to foreclose mortgage resulted in. decree as prayed. The defendant appeals</p>

— Hon. Milo P. Smith, Judge. Suit to recover treble damages under section 4306 of the Code. Judgment for the plaintiff for a part of the damages claimed. Both parties appeal. The defendant will be designated as appellant,

<p>1 Life insurance: cancellation of policy: equitable jurisdiction. Ordinarily equity has no jurisdiction where there is an adequate remedy at law. Under this rule a cross petition filed- in a law action brought to recover on an insurance policy, alleging that the contract was procured by fraud and asking its cancellation will not be entertained, the same facts having been pleaded in defense to the suit at law, which if established would constitute a complete bar to recovery.</p> <p>2 Same: fraud: estoppel. Unless a full and complete copy of an application for life insurance is attached to the policy the company is precluded by statute from pleading or proving, in defense to a suit on the policy, the falsity of warranties contained in the application.</p> <p>3 Same: knowledge of false statements. Knowledge of the soliciting agent of the intemperate habits of an applicant at the time he took the application was knowledge of the company; and where it appeared that the agent had such knowledge and the application itself disclosed the use of intoxicants to a degree sufficient to put the company on inquiry, the false statement • of the insured in that regard was not available as a defense to a suit on the policy.</p> <p>4 Same: false statements: evidence. Neither the fact that an insured had previously been engaged in the liquor business; nb.r that he owned stock in a corporation engaged in the business; nor the impression of witnesses having no means of actual knowledge that he was so engaged, are sufficient to establish the falsity of his representations that -he was not and had no intention of engaging therein.</p> <p>5 Same: burden of proof. The defense to an action on an insurance policy that the insured procured a favorable report from the company’s medical examiner by fraud and deceit is an affirmative one, and the company has the burden of proving it by a preponderance of the evidence.</p>

<p>1 Dower: antenuptial conveyance: presumption of fraud. A secret voluntary conveyance of property just prior to marriage, thus depriving the wife of marital rights she would otherwise acquire, raises a presumption of fraudulent intent, even though there was no actual misrepresentation and the conveyance was to children by a former marriage.</p> <p>2 Evidence: communications with a decedent. When a party is permitted without objection to testify to communications with a decedent, such testimony will not be ignored on appeal.</p> <p>3 Same: fraudulent conveyances: evidence. While a son may not testify to the terms of a contract under which his deceased father conveyed property to him, when objection is made, yet if eliminating such evidence it still appears there was a contract with reference to the land, that the son was in possession thereunder and had a vested right therein, that the father was under obligation to him by reason of the contract, there was a sufficient consideration and in the absence of fraud otherwise proven the deed should be upheld.</p> <p>4 Appeal: argument: change of theory. A party who concedes in his opening argument on appeal the correctness of the trial courts finding will not be heard to present a different claim in his reply argument.</p>

<p>Appeal from Linn District Court.- — Hon. Milo P. Smith, Judge.</p> <p>This is an appeal by plaintiff from an order dissolving a temporary injunction upon motion.</p>

— Hon. J. H. Rothrook, Judge. Action at law to recover upon a promissory note, made by one Rodewald to the defendant Blazek, and by him indorsed in blank. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Tama District Court. — Hon. C. B. Bradshaw, Judge.</p> <p>The plaintiff was married to Edward W. Lucas in 1852, with, whom she lived as wife until his death December 17, 1900. He had entered thirty acres of land from the United States by original entry November 2, 1853, and it was sold by the county treasurer October 5, 1868, for the taxes of the previous year, and a tax deed issued to S. M. Beeson, who has since deceased, and under whose will the defendant acquired whatever title Beeson took under the tax deed. To the petition, stating these facts and that the inchoate dower interest in said land had never been divested, and praying that one-third thereof be set apart to her, the defendant demurred on the ground that whatever interest plaintiff had in said land was divested by the tax deed. The demurrer was overruled, and, as defendant-elected to stand on the ruling, a decree was entered awarding relief as prayed. The defendant appeals.</p>

<p>Husband and wife: family expense: liability of wife. In a suit on account against the husband and wife in which it was sought to hold the wife liable as for family expenses, it is held that a heating stove, clothes wringer, coal oil and can and a buggy kept for use in the family are a family expense within the contemplation of the statute.</p>

— Hon. J.' M. Parker, Judge. Action to recover a sum of money alleged to have been paid to the defendant by mistake. Judgment for the defendant, and plaintiff appeals.

<p>Appeal from Greene District Court. — Hon. F. M. Powers, Judge.</p> <p>Suit in equity for an injunction and an accounting. Decree for defendants. Plaintiff appeals.</p>

<p>Appeal from Linn District Court. — Hon. F. O. Ellison, Judge.</p> <p>Originally this was an action for the partition of seventy-two and one-half acres of land in which plaintiff claimed to be the owner of an undivided one-half thereof, and in which she admitted that defendant Sirovy held the other one-half. Afterward plaintiff asserted title to the entire tract, and asked that it be quieted against both defendants, and, in the event that could not be done, that she have judgment quieting her title to one-half thereof and judgment for the value of the other half against defendant Shunka. On the issues joined the case was tried to the court resulting in a decree quieting plaintiff’s title to one-half the land and a judgment against Shunka for the value of the other half. Defendants appeal.</p>

<p>1 Railroads: open crossing: use of same: intention of parties. An open grade crossing for private use provided with cattle guards and fences, and constructed by agreement of the parties to take the place of an underground cattle pass, is held to have been intended by the parties for the passage of cattle from one side of the track to the other at will and unattended.</p> <p>2 Same: contract for construction: validity: public policy: enforcement of legal provisions. The agreement to construct and maintain an open railroad crossing for the passage of stock unattended is not in violation of any statute, and if void because so constructed it must be on the ground that it is against public policy, a question discussed, but not decided. But if such provision were held void it would not affect another and separate provision of the contract requiring the company to pay for all stock injured or killed while thereon; as the legal conditions of. a contract, which are separable from those which are illegal, may still be enforced.</p> <p>3 Same: killing of stock: who may recover. A contract to pay the owner, his heirs or assigns, for all stock killed upon an open crossing constructed for his convenience, when supported by a consideration, may be enforced by a son and heir, whether it be construed as a covenant running with the land or not.</p> <p>4 Same: pleading: contributory negligence. Where there is a contract obligation to pay for stock killed on a private crossing the. plaintiff need not allege freedom from contributory negligence in -his action to recover therefor.</p>

— Hon. O. D. Wheeler, Judge. Under an indictment charging assault with intent to murder, the defendant was convicted of assault with intent to inflict great bodily injury, and from the sentence on this verdict he appeals.

<p>Appeal from Crawford District Court. — Hon. Z. A. Church, Judge.</p> <p>The opinion states the case.</p>

— Hon. Milo P. Smith, Judge. Action at law upon a policy of fire insurance issued to one Brazelton. The case was tried to a jury resulting in a verdict and judgment for plaintiff, and defendant appeals.

— Hon. F. E. Gaynor Judge. D. J. Klumpert died testate September 23, 1906, leaving real and personal property of the estimated value of $12,760. His will, duly admitted to probate, after providing for the payment of debts, directs the disposition of bis property as follows:. “(1) To Jan. Vrieland, Ryssen, Netherlands, Prov. Overyssel, one thousand dollars. (2) To Gerhardth Vrieland, Deventer, two hundred dollars.

— IIon. F. O. Ellison, Judge. This is a proceeding in probate involving the validity of the will of Hannah Hendershott. The proponent, Lydia Spiers, is the principal beneficiary thereof. The contestants are collateral heirs of the deceased. There was a verdict sustaining the validity of the will, and the same was thereupon admitted to probate by proper order of the court. The contestants appeal.

— Hon. J. M. Parker, Judge. ' 1 These two actions involve the same subject-matter, and are submitted on the same briefs and arguments. They will be disposed of in one opinion.

— Hon. Milo P. Smith, Judge. This is a condemnation proceeding for a right pf way for the defendant railway company. There was a trial to a jury, and an assessment in favor of plaintiffs of $1,835. Defendant appeals.

<p>1 Admission of evidence: failure to object: waiver of error. Where plaintiffs testimony respecting the damage sustained in the condemnation of land was received without objection, and defendant having cross-examined fully on the subject, it could not require an exclusion of the evidence as matter of right, even if inadmissible over timely and proper objection.</p> <p>2 Surface water: rights of adjoining owner. A landowner has no right to enter upon an adjoining right of way and construct a channel for the water discharged upon his land from the right of way.</p>

— Hon. J. H. Rotiirock, Judge. Action to recover the possession of certain real estate and damages for the wrongful detention thereof. Defendants claimed to be in rightful possession under a lease. Trial to a jury. Verdict and judgment for plaintiff, and defendants appeal.

— Hon. James D. Smythe, Judge. Action in equity to enjoin the execution sale of certain real estate. Decree as prayed, and defendants appeal.

— Hon. A. D. Bailie, Judge. Action in equity, to have a deed, absolute in form, under which defendant holds apparent legal title to an eighty-acre tract of land, declared to be a mortgage accepted by defendant, at the instance and request of plaintiff, for the purpose of securing to defendant the payment of the purchase price of said land. There was a decree for defendant, and plaintiff appeals.

<p>Appeal from, Monroe District Court. — Hon. Frank W. Eichelberger, Judge.</p> <p>Action at law to recover compensation for services rendered Emma Adams, the wife of John Adams and the mother of Royal Adams. The defense was practically a general denial. The "case was tried to a jury, resulting in a judgment for plaintiff, and defendants appeal.</p>

— Hon. M. A. Roberts, Judge. Suit at law to recover rent alleged to be due upon a mining lease.. There was a trial to a jury and a verdict and judgment for the plaintiffs. The defendant appeals.

— Hon. W. L. McNamara, Judge. This is an action to foreclose a mortgage, and to establish a priority of lien over a judgment held by defendant Bowman. There was a decree for plaintiff. Defendant Bowman appeals.

<p>1 Partition: contribution by cotenant. While as a general rule a cotenant who is a disseisor is chargeable with rents and profits and can not compel contribution for improvements, still there may be circumstances where a court of equity may modify the strict rule in the interest of justice; as where defendant supposing he had acquired absolute title by purchase under a sale in partition entered into possession making valuable improvements on the property, the ouster of a cotenant in fact still having an interest was only technical and he is held entitled to contribution in a subsequent action for partition.</p> <p>2 Same: improvements: removal: rents and profits. Neither party to a partition by sale can complain of the removal of inexpensive buildings erected by the tenant in common in possession of the land supposing he owned the entire fee; and when the tenant in possession is entitled to contribution for improvements which equal in value the rents and profits he will not be required to pay over any part of the rents to his cotenant.</p> <p>3 Partition: liability of cotenants for incumbrance. Where a portion of the price paid for land at a partition sale was used by the referee in paying a judgment lien against the premises, the purchaser supposing he had acquired the whole title, a cotenant subsequently establishing an interest in the property can not complain that he is charged with his proportion of the debt</p>

<p>Appeai from Mahas'lca, District Court. — Hon. B. W. . Preston, Judge.</p> <p>Action at law upon a bond given by defendant to secure the performance of a contract made by one Glattfeld with plaintiff for the construction of certain brick and stone work about and upon what was known as the “Central Heating Station” for the State Agricultural College at Ames. Plaintiff claimed something like $3,000 as owing it because of the defaults and delinquencies of Glattfeld, and in a supplemental petition asked for work done after the bringing of the suit. Defendant set up a counterclaim for extra work done by Glattfeld, and averred that the original contract, plans and specifications had been orally changed without its consent and contrary to the terms of the original contract, thereby releasing it from liability. It also pleaded a release, due to the fact that plaintiff had not sued the principal, Glattfeld, within six months from the completion of the work, as it had agreed to do. The case Was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.—</p>

— Hon. F. O. Ellison, ■ Judge. Suit on a written contract for the purchase of machinery. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.

Appeal 'from Folic District Court. — Hon. W. H. McHenry, Judge. This is a proceeding to construe item 7 of the will of Elizabeth Miller. Erom the decree of the' lower court, Erank Linaberry, devisee named in such item, appeals.—

— Hon. Franklin C. Platt, Judge. This action was brought in equity for an accounting by defendant of money had and received by him on plaintiff’s behalf, for judgment in the sum of $2,500, and to set aside a settlement between the parties because procured by fraud. On defendant’s motion the case was transferred to the law calendar, and over plaintiff’s exceptions and objections tried to a jury, resulting in a directed verdict for defendant, and plaintiff appeals.

<p>Appeal from Story District Gourt. — Hon. W. D. Evans, Judge.</p> <p>Action to recover money alleged to be due to plaintiff from defendants under a written contract. On a trial to tbe court judgment was rendered in favor of defendants, and plaintiff appeals.</p>

— Hon. Robert M, Wright, Judge. This is an action for personal injuries arising from a fall upon a defective sidewalk. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. W. S. Withrow, Judge. Action at law to recover the purchase price upon an alleged sale of hardwood logs. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Webster District Court. — Hon. C. G. Lee, Judge.</p> <p>Deeendant was indicted for desertion of wife and child, and upon trial to a jury^he was convicted and given an indeterminate sentence. He appeals.</p>

<p>Appeal from Kossuth District Court. — Hon. D. F. Coyle, Judge.</p> <p>This is au action for damages for personal injuries,. resulting to plaintiff from the bite of a dog owned by the defendants. The petition prayed for a judgment for $200 as expense and medical care, and $1,000 for pain and suffering. At the close of the evidence the court withdrew the item of $200 for medical care. There was a verdict for the plaintiff for $1,000. The trial court required the plaintiff to remit one-third of the verdict or submit to a new trial. Plaintiff electing to remit, judgment was entered in her favor for $666.66. Defendants appeal.</p>

- — -Hon. Z. A. Church, Judge. This ease arises out of a drainage proceeding relating to the establishment of drainage district No. 5. The plaintiff presented its claim for damages for $3,920. The commissioners appointed to appraise damages allowed the sum of $160, and no more. The board of supervisors approved such allowance. An appeal was taken to the district court, and the cause there tried to the court without a jury, and upon a written stipulation as to the facts.

— Hon. C. Gr. Lee, Judge. This is a proceeding by mandamus to compel the transfer of stock upon the books of the defendant, company. Decree and. judgment for the- plaintiff, and the defendant appeals.

<p>Appeal from Linn District Court. — Hon. J. H. Preston, Judge.</p> <p>Action to quiet title. Decree for plaintiff. Defendants appeal.</p>

— Hon. L. E. Fellows, Judge. The plaintiff, Orke, brought this action against the defendant, McManus, for $416, an alleged balance due for fixtures, furniture and stock in a saloon sold by the plaintiff to the defendant.

— Hon. R. P. Howell, Judge. Action at law to recover damages for personal injuries sustained by John Canfield, a minor, while in the defendant’s employ as a sectionman. Defendant answered by a general denial. Trial to a jury, verdict and judgment for plaintiff in the sum of $49,000, and defendant appeals.

<p>1 Unlawful search: right of action. Every citizen is guaranteed by the constitution the security of his person and property against wrongful seizure or search, a violation of which right without reasonable ground gives the injured person a cause of action therefor.</p> <p>2 Malicious prosecution: malice: probable cause: evidence. In an action for maliciously suing out a search warrant, malice and want of probable cause must be shown to sustain a recovery of damages; and unless the evidence is so clear and undisputed that reasonable minds can not differ as to the conclusion, the issue is for the jury. Evidence held to show that the issuance of the warrant and the search were procured by malice and without cause.</p> <p>3 Same: wrongful search: right of action. Actual arrest or seizure of property are not essential to sustain an action for maliciously suing out a warrant directing the search of plaintiff’s premises, nor is it essential that he should have been directly charged with larceny; the wrong is done by unreasonably entering and searching his home under the charge that stolen property was there secreted, thus casting upon him the suspicion at least of complicity in the larceny.</p>

— How. Edmund Nichols, Judge. • Action in equity to enforce an equitable lien upon the proceeds of personal property. A demurrer to the petition was sustained. Plaintiff refusing to plead over; the court dismissed his petition and entered judgment for costs. Plaintiff appeals.

— Hon. G. G. Lee, ;Judge. Suit to recover damages for a personal injury sustained by a fall on a sidewalk in the defendant city. There was a verdict and judgment for the plaintiff, from which the defendant appeals.

— Hon. M. A. Roberts, Judge. Alexander Miller died October 4, 1905, and Charles Pickard was appointed administrator of his estate. Por several years a stepson, Charles Saddler, had, prior to his death, rendered services for him, and furnished some supplies, and a claim therefor in the sum of $300 was presented to the administrator of the estate. This was duly approved and allowed. Thereafter a son, George Miller, filed an application to have the order of allowance set aside.

. — Hon. Jesse A. Miller, Appellant. This is an action at law on account for goods sold and delivered. There was a judgment for plaintiff, and defendant appeals.

<p>1 Railroads: injury to stock in transit: damages: evidence. In an action for the value of an animal fatally injured while in transit the evidence is held to support a verdict of $400.</p> <p>2 New trial: misconduct of juror. Repetition to the jury during their deliberations of matters which a juryman had testified to in his examination on voir dire, concerning his own difficulty with the defendant which had been satisfactorily settled, and in slating to them other acts of the defendant with which he found no fault, is held insufficient to justify setting aside the verdict.</p> <p>3 Cost of additional abstract: taxation. On affirmance of a judgment the appellant will not be taxed with the cost of printing the appellees • entire abstract, consisting almost wholly of testimony in the form of questions and answers, for which there was no justification.</p>

— Hon. H. M. ' Towner, Judge. Actions in equity to set aside conveyances of real estate from William Bell, the deceased husband of the plaintiff, to each of three children by a former marriage, and subject the three parcels of land covered by said conveyances to her claim for dower therein; the allegation of ground for such relief being that said conveyances were made shortly before plaintiff’s marriage to said William Bell, and without her knowledge, and in fraud of the…

<p>1 Partnership for sale of real estate: abandonment: commissions: evidence. In a suit by one partner to recover a share of commissions earned in the sale of real estate, the evidence is held to show a partnership between the parties and that plaintiff abandoned the partnership on or about a certain date, at which time he claimed a share of the commissions growing out of but one transaction.</p> <p>2 Same: contracts against public policy: commissions: accounting. Although the arrangement under which a partnership is formed for the purpose of selling real estate on commission may be inimical to public policy, because contemplating representation by the firm of both parties to a transaction, still as to transactions conducted by the firm in which there was no double dealing, fraud or_ anything contrary to law or public policy, the partners are entitled to share in the commissions thus earned.</p> <p>3 Same: agency: accounting. The rule that an agent can not represent both parties to a transaction is for the benefit of the principals and not the general public; but both principals may waive the rule and consent to pay the same agent a commission on the transaction, in which event, if collected by one member of the firm constituting the agency the other member can compel an accounting, and the fact that the firm has acted in an unauthorized dual capacity for other parties is not a defense to an action for that purpose.</p>

— Hon. Robert M. Wright, Judge. Through appropriate proceedings a drainage district was established, the improvement contracted, and the commissioners to classify lands and apportion the cost of construction, fees and damages made their report. On June 14, 1906, the board of supervisors took up this report and raised the assessment, as reported by the commissioners as follows: Name Description Section Township Range From To B. II.

<p>Service of notice: publication: what constitutes a newspaper. A daily paper published regularly for four years with a paid subscription of two hundred copies, circulating chiefly among all classes of business men, containing advertising matter, court proceedings, transfers of property, and items of local and foreign news, and admitted to the mails under like rules with all other newspapers, is a newspaper within the contemplation of Code, section 3535, providing for the publication of an original notice in some newspaper printed in the county where the petition in the action is filed.</p>

— Hon. A. N. Hobson, Judge. Suit to recover on promissory notes executed by tbe defendants J. L. & Aaron Hoard, and to subject real estate, the legal title of which is in Jemima Hoard, to the payment of the judgments obtained on the notes. The case was transferred to equity, and there was a judgment for the plaintiff on two of • the notes sued upon, and a judgment in favor of the defendant Jemima Hoard. The plaintiff appeals.

<p>1 Injunctions: temporary writ : discretion : review. While the trial court is vested with much discretion in the matter of granting or continuing a temporary injunction, still this discretion is a legal one and if not properly exercised the court’s action will he reversed on appeal. •</p> <p>2 Same: dissolution. As a general rule a preliminary injunction will be dissolved where all the material allegations of the petition have been fully and satisfactorily denied in the answer; but where the basis of the action is fraud, or it is apparent that by a dissolution of the injunction a party will lose all benefits to accrue from final success in his suit, the rule is otherwise. However, if upon the entire record nothing but questions of law are involved, and it appears the writ was improvidently issued it will be dissolved on appeal.</p> <p>3 Municipal corporations: proceedings : record : duty of city cleric : deputy. • The duties of a city cleric are' purely ministerial; and while the statute provides that he will attend council meetings and make a record of the proceedings his presence is not indispensable to the transaction of business, but the council may appoint a clerk ex tempore, or, the clerk may deputize another to perform the service; and when this is done and the minutes are corrected and approved by the council they become the records of the council, and when attested by the cleric are as valid as if regularly taken by him in the first instance.</p> <p>4 Municipal corporations: powers of council: judicial interference. A city council may act in an administrative as well as a legislative capacity; and in so far as its acts are legislative its motive or that of its members will not be inquired into by the courts, unless perhaps .when oppressive' or unreasonable. And where an ordinance is one expressly authorized by statute the court will not interfere with the discretion of the council.</p> <p>5 Same: municipal contracts: motives of councilmen: fraud. Where an ordinance, by-law or resolution of a city council is contractual in character, or, where the city acts as trustee or agent, the motives of councilmen may be enquired into; apd. where the results are obtained by fraud the contract will be set aside ' the same as when made between natural persons.</p> <p>6 Same: judicial review. Courts are slow to condemn an ordinance expressly authorized by statute; but if passed under a general welfare clause or some implied power, it will be condemned if arbitrary, unreasonable or oppressive.</p> <p>7 Municipal contracts: debt limit: injunction. The fact that a city is indebted to its constitutional limit is not ground for enjoining of the letting of a contract.</p> <p>8 Same: injunction. A city council is authorized by statute to determine the kind of material to be used in the paving of streets, and having selected the same prior to any alleged improper influences an injunction will not lie to restrain the letting of a contract for the work because the material selected is more expensive than some other, or more expensive than property owners think should be used.</p> <p>9 Municipal authority': public improvement: discretion: judicial interference. Courts will not undertake to control the discretion of a city council by determining whether it is advisable for a city to improve its existing utilities before proceeding with others.</p> <p>10 Municipal contracts: paving: fraud: evidence. To justify an injunction restraining' a city council from making a contract for a public improvement on the ground of fraud, the fraud must be of .such a character that unless the court interferes injury will result to some one; a mere' showing from which fraud might be inferred is not sufficient: As where the council took a junketing trip for the purpose of inspection at the invitation and expense of the successful bidder, where such bidder had no monopoly on the materials or supplies to be used, and was one of several competitors with equal opportunity to obtain the contract.</p> <p>11. Same: rights of property owners: adequate legal remedy: injunction. Where fraud has entered into the bidding and letting of a municipal contract property owners subject to assessment have an adequate remedy at law in their right to resist the enforcement of the assessment against their property, or a recovery for the value of the improvement, and are therefore not entitled to an injunction restraining the making of the contract.</p>

— Hon. W. G. Clements, Judge. Action to recover damages for the death of John Rutherford, deceased, who was struck by a train being operated upon defendant’s road, and received injuries from which he died. The case was tried to a jury, resulting in a verdict for defendant, and plaintiffs appeal.