Volume 145 — Iowa Reports

<p>Collateral inheritance tax: corporations: taxation of stock. Shares of stock in a corporation represent an interest in the earnings and property of the corporation, and a certificate is not stock itself but a representation of it, which may represent an interest in either real or personal property; and as a corporation is under the jurisdiction and control of the State of its domicile which directs the manner and form of its organization, exercising supervisory power and the manner of its dissolution, a nonresident owner of shares of stock has an interest in the property of the corporation which is subject to the collateral inheritance tax law of this State.</p>

<p>Appeal from Fremont District Court. — 'Hon. N. W. Macy, Judge.</p> <p>Action on a bond resulted in judgment against defendants. The facts are recited in Fremont County v. Fremont County Bank et al., 138 Iowa, 167. The defendants appeal. —</p>

Certiorari from, Pottawattamie District Court.-. — Hon. O. D. Wheeler, Judge. The plaintiff has brought this certiorari proceeding for the purpose of testing the legality of the order of the defendant as district judge in suspending him from the office of clerk of the district court. —

<p>1 Soldiers preference law: appointment: tenure. The chief purpose of the soldiers preference law' is to secure to the honorably discharged veteran permanency, of employment; and where his appointment has been made to a position of a continuous character, for which no particular term is‘ fixed by statute, he can not be removed except in the manner provided by the statute.</p> <p>Same. The mere fact of annual appointment of a veteran to a position of a continuous character will not deprive the appointment of the indefinite character contemplated by the soldiers preference law, where the appointee claims the right to continue in the position; even though at the close of the year he made application for reappointment.</p> <p>3 Mandamus: form of trial. Even though an action of mandamus was instituted prior to the passage of the statute making it triable in equity rather than at law, still where the issues were not formed and "trial had until after the change in practice, it was then properly tried in equity; as a litigant has no vested right in any particular form of remedy.</p> <p>4 Same: costs. A-plaintiff in mandamus is not entitled to attorney’s fees, by way of costs and damages, on obtaining a reversal on appeal from a judgment denying him relief.</p>

<p>Appeal from Fayette District Court. — IIon. A. N. Hobson, Judge.</p> <p>Appeal from conviction of murder in the first degree. —</p>

— Hon. Z. A. Church, Judge. Action at law upon an overdraft. Defendant denied generally, and also pleaded that he had not received all the credits to which he was entitled. A jury was impaneled, and at the conclusion of the testimony the trial court directed a verdict for plaintiff. Defendant appeals. —

<p>Appeal from Pottawattamie District Court at Avoca.-— IIon. W. R. Green, Judge.</p> <p>Dependants were convicted of the violation of a town ordinance, and they appeal. —</p>

<p>Attachment: intervention by landlord: priority of liens. A'mere landlord’s lien does not give the landlord the right to possession of property as against either the tenant or one claiming through him, and the landlord has no preference over other creditors; he simply has a lien upon the property which may be enforced by appropriate proceedings, and prior to having established his right to possession under appropriate proceedings he can' not maintain replevin against another attachment creditor, although seizure under the attachment will not deprive him of his lieu on the property.</p>

<p>Appeal from Pottawattamie District Court. — Hon. W. R. Greene, Judge.</p> <p>In May, 1904, D. J. Fogarty recovered judgment against the defendant for the sum of $100 and costs in the justice court of II. O. Owen, Esq., from which an appeal was taken to the district court. Several depositions were taken thereafter and filed. The cause was noticed for trial several times, and at one time continued on motion of plaintiff. Though not noticed for trial at the January, 1908, term of court, nor assigned for that purpose, the following entry appears of record: “On this day this cause coming on in the order of its assignment, upon motion of plaintiff’s attorney, Katharine V. Fogarty, administratrix of the estate of D. J. Fogarty, deceased, is substituted as plaintiff, the death of D. J. Fogarty being suggested; and thereupon this cause comes on for trial in the order of its assignment, the plaintiff appearing by F. Benjamin, her attorney, and the defendant appears not nor any one for him, and, upon the submission hereof, it is ordered that the judgment of the lower court be, and the same is hereby, affirmed, and that the plaintiff have judgment for one hundred dollars and costs both of the lower court and this court. Wherefore it is ordered and adjudged that the plaintiff, Katherine Y. Fogarty, administratrix, do have and recover of and from the defendant, S. E. Battles, the sum of one hundred dollars, with interest at six percent from May 16, 1904, the costs of this action taxed at $36.90, and accruing costs, and that execution issue therefor.” The defendant filed a petition Sejotembef lYth following, praying, in substance, that the judgment be set aside (1) for irregularity in obtaining it, (2) for fraud practiced in obtaining it, and (3) because the administratrix was not substituted as party plaintiff before the judgment was rendered. On hearing the petition was dismissed, and defendant appeals. —</p>

<p>Appeal from Jasper District Court: — Hon. Byron W. Preston, Judge.</p> <p>The plaintiff appeals from a judgment confirming an award of arbitration. —</p>

— Hon. Z. A. Church, Judge. Action at law to recover the purchase price of certain jewelry alleged to have been sold by plaintiff to defendants. Judgment for defendants, and plaintiff appeals.—

<p>1 Highways: obstruction: injunction: who may sue. Under the general rule that a private person may enjoin a public nuisance which works a special injury to him different from the general public, a road superintendentr charged with the duty of maintaining the highways in his district, and who is liable for damages resulting from failure to perform that duty, may enjoin the construction of a dike which would dam the water up on a highway of his district and make it impassable.</p> <p>2 Same: adjudication. The plaintiff in this action brought the suit in his individual capacity as road superintendent to restrain defendant from maintaining a dike which ran the water over the highway. The defendant had previously filed a petition to enjoin the road supervisor and another from interfering with the dike, describing the defendant as road supervisor; but the office was abolished before decree was entered. Afterward the former supervisor filed a petition in intervention in his individual capacity, and on appeal it was decided that the defendant in the present action could maintain the dike in question -as long as plaintiff maintained his. About the time the office of • road supervisor was abolished plaintiff herein was appointed road superintendent • of the same district, but was not a party to the former suit and knew nothing about it. Held, that the decree in the former action was not an adjudication binding upon the plaintiff herein.</p> <p>3 Same. A decree in a former suit would not bind plaintiff if he were suing in his representative capacity, for it was rendered when defendant therein had ceased to be road supervisor, and plaintiff . herein not having been substituted as defendant.</p> <p>4 Same: evidence. The evidence in the action is reviewed and it is held sufficient to show that the dike which defendant proposed to repair and maintain was and would be a nuisance and that the injunction herein properly issued.</p> <p>5 Appeal: inaccuracy in decree: harmless error. Mere inaccuracy of statements in a decree which are not material so far as the merits of the case are concerned and do not affect the result will be disregarded on appeal.</p>

<p>Appeal from Harrison District Court¡ — ITon. A. B. Thornell, Judge.</p> <p>The opinion states the material facts. —</p>

— Hon. Z. A. Church, Judge. This is an appeal from an order of the district court canceling assessments made by the board of supervisors against certain lands belonging to plaintiff, said assessments having been made in a proceeding for the establishment of a drainage district. —

<p>I Appeal: abstract: amendment. An amendment correcting an abstract so as to show a premature appeal will not be stricken out because of delay in filing the same; as the question of jurisdiction may be raised at any time.</p> <p>2 Same: statute. Chapter 20£¡, Acts 33d General Assembly, relating to premature appeals has no application where the right of appeal had expired when the Act became a law.</p>

— Hon. Jas. D. Gamble, Judge. This is an action for an agent’s commission for the sale of real estate. At the close of plaintiff’s evidence, there was a directed verdict for the defendant, and a judgment entered against plaintiff for costs. Plaintiff appeals.

— Hon. A. N. Hobson, Judge. This is an action in equity to set aside and declare void a former decree, and to establish the title of the plaintiffs as heirs of their father to an undivided three-fourths of • a certain eighty acres of land. The trial court dismissed the petition, and the plaintiffs appeal. —

— Hon. Z. A. Church, Judge. This is a proceeding in equity, wherein the plaintiffs seek to enjoin the defendants, as officers of a mutual telephone company, from disconnecting plaintiffs’ residence from the lines of such company. There was a decree in the court below dismissing the petition. Plaintiffs appeal.

— IIon. . A. N. Hobson, Judge. Action in equity to Have cancelled a mortgage in favor of defendant appearing of record as against plaintiff’s land, and to quiet plaintiff’s title as against any lien or claim of defendant thereon by reason of such pretended mortgage, By cross-petition .the defendant sought to hav§ said, mortgage established and enforced as against the land.

<p>I Drainage: establishment of district: right of appeal from ordf.r of supervisors. Under the statutes relating to .the establishment of drainage districts, an order establishing the district and directing that the cost of the improvement he made at the expense of the lands benefited thereby is • appealable, although no appeal lies from an order of the board denying the establishment of a district because not for the public benefit or utility, or conducive to the public health or welfare.</p> <p>2 Same: report of., engineer : objections: sufficiency. Under pro- ceedings for the establishment of a drainage district it is the duty of an engineer appointed by the board to show in his report, among other things, the elevation of the lands, lakes, ponds and deep depressions of the district, and to make an estimate of the <;ost of carrying the water therefrom into a newly constructed' channel, as the basis of an order by the board of supervisors for construction of the work; and where this is not done the objections should be clearly pointed out to the board. However, in this case the objections in a general way stated that the cost and expense of constructing the ditch exceeded the benefits, and was too burdensome to be borne by the land within the district, and, as the case was triable de novo on appeal were sufficient to permit the objectors to urge, both before the board and on appeal, that because ' of the engineer’s failure to make an estimate of the cost and to show the facts the supervisors did not know and could not ascertain the cost of the improvement and were therefore without authority to order the same.</p> <p>3 Samé: establishment of drainage district: expense: evidence. In this action the evidence is reviewed and it is held, that the construction of the drainage system proposed, involving the straightening of a very sinuous riyer carrying a considerable body of water was not justified, because of excessive cost and doubtful utility, and that the district court properly reversed the action of the -board in establishing the same.</p>

<p>I Guardian and ward: investment of funds: report: approval. A guardian may be authorized by a general order ’ to invest his ward’s funds in real estate to be thereafter selected by him, although it might be better procedure to first make the selection and then ask authority for its purchase; and approval of a general report by the guardian as a whole was an approval of the report of the investment embodied therein, although special attention was called to the same by a distinct heading.</p> <p>2 Same: exercise of care. A guardian is held to the same care and prudence in the investment of funds of his ward that men of ordinary prudence and intelligence exercise in their own affairs, and having done so he is not responsible for mere errors of judgment.</p>

— Hon. N. W. Macy, Judge. This is a prosecution for uttering a forged instru- ■ ment. There was a judgment and verdict of guilty, and defendant appeals. —

<p>Original Certiorari Proceedings to the District Court of Winneshiek County and Hon. L. E. Fellows, Judge.</p>

<p>Railroads: liability of receiver for personal injury. An action will not lie against the receiver of a railroad company, appointed simply to preserve the property pending the litigation, for a personal injury sustained before the road passed into the possession and control of the receiver.</p>

<p>1 Criminal law: perjury: indictment. An indictment for perjury must deny the truth of the alleged testimony; but the allegation that defendant testified that he never agreed to pay cer- ■ tain court costs, whereas in truth and in fact, as accused well knew he did so agree, was á sufficient traverse to put in issue the truth of defendant’s denial of the agreement to pay, etc., the allegation, “as accused well knew,” not affecting the force or effect of the averment.</p> <p>2 Indeterminate sentence law. The constitutionality of the indetermínate sentence law is reaffirmed in this action.</p> <p>3 Perjury: evidence of intent. Where accused was charged with perjury in falsely testifying to an alleged oral agreement to pay the costs, in connection with a written settlement of the action signed by him, he was entitled to state that he understood the writing embodied the whole agreement and that none of its terms rested in parol, as bearing on the question of his intent.</p> <p>4 Same. It is also held that the accused was entitled to ask the attorney who drew the written stipulation which he testified to, why the matter of costs was not incorporated therein; since the natural, if not the legal presumption, is that hostile parties entering into a written agreement will see that all the terms agreed upon are expressed therein; and the accused should be accorded fáir liberality in developing all the circumstances under which the crime is said to have been committed.</p> <p>5 Same: instruction. While the omission of any reference to costs in' the stipulation was not conclusive upon the State, it was a material circumstance, in determining whether defendant agreed to pay them, and he was entitled to a requested instruction that the same be considered as bearing upon his understanding of the agreement.</p>

Appeal■ from Pottawattamie District Gourt. — Hon. E. B. Woodruee, Judge, Defendant was .charged with the crime of rape in having sexual intercourse with a female under the age of fifteen years. From a conviction for the offense thus charged, he appeals. —

— Host. E. B. Woodruee, Judge. Action at law to recover a payment made as a part of the purchase price of land. There was a directed verdict for the defendant The plaintiff appeals. —

<p>I Appeal: assignment of error. While assignments of error as such are no longer essential, still the appellate court is entitled to know- the errors relied on for reversal, and it is incumbent on the appellant to point out the particular ruling complained of and to indicate where it can be found in the record.</p> <p>2 Contributory negligence: instructions. The negligence which will defeat recovery for a personal injury is any want of ordinary Care, however slight, which as an efficient cause contributes to the injury. In the instant case the instructions when construed together announce the correct rule.</p> <p>3 Municipal corporations: defective streets : negligence : notice. It is the duty of a municipality to exercise ordinary care to keep its streets in repair; but before it can be charged with negligence in that respect . it must have 'had either actual or constructive notice of the defect, and opportunity to repair the same.</p> <p>4 Same: instructions : harmless error. Where the jury finds that plaintiff has no right of recovery for a personal injury, he can not complain of an erroneous instruction as to the measure of damages.</p>

— IIon. O. D. Wheeler, Judge. Action at law upon a promissory note. There was a directed verdict and judgment for the plaintiff, and defendant appeals. —

— Hon. W. K.. Green, Judge. Action to recover damages to plaintiff from personal injury to himself and from the death of his wife -and three children, resulting from an explosion of coal oil purchased by plaintiff’s wife from defendants. Plaintiff alleged that' defendants through their agent were negligent in selling said oil after notice that if was dangerous, and without having the oil inspected or examined by an oil inspector.

— Hon. R. M. Wrigiit, Judge. The information charged defendant with being the father of prosecutrix’s bastard child. There was a verdict of guilty, and judgment accordingly. The defendant appeals. —

— Hon. A. P. Barker, Judge. Suit to recover damages for a personal injury. A verdict for. the plaintiff was set aside on defendant’s motion, and a new trial ordered. The plaintiff appeals. —

— Hon. F. M. Powers, Judge. Drainage district No. 14 was. duly established in Greene County, and the appraisers reported fixing the assessment against the northeast quarter of the northeast quarter of section 34-in township 83 N, of range 31, at $107.75, and against the southeast quarter of the same northeast quarter at $301.75.

— Hon. W. B. Green, Judge. The plaintiff brought hi's action for damages for alleged flooding of his land adjoining the defendant’s right of way. There was a cross-bill by the 'defendant bringing Bichard O’Connell into the case as an adverse party. The case was transferred to the equity side of the docket. There was a decree dismissing the petition and granting relief on the cross-bill. The plaintiff and O’Connell both appeal. —

— Hon. Hugh Brennan, Judge. This is a suit to enjoin defendant’s ward from interfering with the possession of certain real estate and the alleged right of plaintiff’s tenant to occupy and use said premises under a lease. There was a hearing on motion to dissolve a preliminary injunction, which was overruled, and a trial on the merits in which a permanent injunction was granted. The defendant appeals. —

<p>I Fraudulent conveyances: action for deceit: evidence. Where one party to a contract for an exchange of properties relies on a warranty that the other has actually conveyed a good title, he can not he defeated in an action for deceit by proof that a reasonably prudent person would have made an examination on his. own account; there being no evidence that the complaining party had no knowledge that the title was not as represented.</p> <p>2 Appeal: denial of appellant’s abstract: certification of evidence. No certification of the evidence in a law action is necessary until the appellant’s abstract has been denied and the appellee has pointed out the particulars in which it is erroneous, or has added omitted evidence; so that a mere denial of the appellant’s abstract which pui-ports to present the evidence without more does not compel him to substantiate it by a certified transcript.</p>

— How. B. H. Miller, Judge. Action to recover damages -for the death of Frederick J. Dieckmann. There was a directed verdict and judgment for defendant, and plaintiff appeals. —

<p>Appeal from Mills District Court. — Hon. W. R. Green, Judge.</p> <p>Action in equity to establish an attorney’s lien. There was a judgment for the plaintiff. The defendants appeal. —</p>

<p>Appeal from Jefferson District Court. — Hon. D. M. Anderson, Judge.</p> <p>Appeal from an order denying defendant’s motion to tax costs to plaintiff. —</p>

<p>Appeal from PoTk District Court. — Hon. W. M. McHenry, Judge.</p> <p>The defendant was convicted of having attempted to canse a miscarriage, and appeals. —</p>

— Hon. O. D. Wheeler, Judge. The plaintiff was fined for contempt, in that, as was-alleged, he had. violated a liquor injunction, thereupon he sued out a writ of certiorari, to which return of all the evidence adduced was made.: —

— How. H. K. Evans, Judge. Action to recover damages for personal injury. There was a judgment for plaintiff for $3,000, and he appeals.

— Hon. N. W. Macy, Judge. Quo warranto proceedings to test the validity of the defendants’ appointments as members of .the Board of Fire and' Police Commissioners of the city of Council Bluffs and to oust the defendants from their positions as such. Eel a tor pleads that he was and is Chief of the Fire Department of the aforesaid city, and that defendants were threatening to interfere with him in the discharge of his duties.

— Hon. Jesse A. Miller, Judge. Dependant was indicted, tried, and convicted of the crime of receiving stolen property, and he appeals. The jury found the value of the property to be more than $25.-

— IIow. A. B. Thornedl, Judge. Defendant was convicted of practicing as a physician and publicly professing to cure and heal without having recorded with the county' recorder a certificate of the State Board' of Medical Examiners, as required by Code, section 2580, and from this conviction he appeals. —

— Hon. Milo P. Smith, Judge. Defendant was indicted for willfully, unlawfully, and feloniously committing lewd, immoral, and lascivious acts upon tlie body and private parts of a male child under the age of thirteen years, to wit, of the age of eleven years, with intent of arousing his own passions and those of said male child, contrary to the provisions of the statute. Code Supp. 1907, section 493’8a. From a conviction under said charge, the defendant appeals. —

<p>I Criminal law: larceny: evidence. On a prosecution for larceny, where it appeared that the property was found in defendant’s possession several months after it was claimed to have been stolen, and the defendant showed that he acquired possession within a day or two after the alleged larceny, the question of his guilt was for the jury.</p> <p>2 Same: possession of recently stolen property. The burden of establishing a defendant’s guilt of the crime charged is' at every stage of the trial upon the State; and an instruction to the effect that recently stolen property raises a presumption of guilt and justifies a conviction, unless the accused satisfies the jury that he came rightfully into possession; and, that the possession of recently stolen property is presumptive evidence that defendant stole it unless he came honestly by it, is erroneous, because requiring him not only to negative his guilt but to show that his possession was rightfully and honestly acquired.</p> <p>3 Same: evidence: failure to defend replevin suit. Failure of one accused of larceny to defend an action in replevin of the property by the prosecuting witness can- not be shown; as his failure to defend the action would not be inconsistent with his innocence.</p> <p>4 Same: reasonable doubt: instruction. It is incumbent upon the State to prove beyond a reasonable doubt every essential or material fact constituting the crime charged, and an instruction authorising conviction without such proof is erroneous.</p>

— Hon. W. N. Treich- • • her, Judge. This is a prosecution for rape. There was a verdict of guilty, and a judgment imposing punishment. The defendant appeals. —

— Hon. E. O. Ellison, Judge. This is an action for damages for an alleged breach of covenant of a warranty deed. There was a verdict and judgment for plaintiff, and defendants appeal. —

— ILon. Robert Bonson, Judge. Suit in equity to restrain the collection of a judgment obtained by the Edwards Loan Company, against the plaintiff before a justice of the peace in Hardin County, Iowa, which judgment was thereafter transcripted to the district •court of Hardin County, Iowa. Execution issued to the defendant Dunn, the sheriff of Dubuque County, which said sheriff was about to levy when this action was commenced to restrain the levy thereof.

<p>Pleadings: substitution: when properly’ stricken. In this suit on a benefit certificate the plaintiff filed several substituted petitions, but served no original- notice and filed no trial notice. The defendant however voluntarily appeared to the action and filed a trial notice, and after the case was set for trial the plaintiff filed another substituted petition containing no change in the pleading except a correction of deceased’s surname, which correction had been made by defendant’s answer. Held, there was no occasion for the last substituted petition, that the. same was properly stricken from the files, and upon plaintiff’s election to stand upon the pleadings judgment was properly- entered for defendant.</p>

<p>I Estates of decedents: residence: evidence. On the question of the residence of a decedent for the purpose of administration of his estate, it appearing that decedent was injured and afterward removed to another county where he died and administration was granted, evidence of his intention to permanently remove from the place where he was injured was competent on the question of whether his removal to the latter place was voluntary.</p> <p>2 Same. Where one has formed a definite intention to change his place of residence, which is carried out with no intention of returning, it is immaterial that he had no intention of permanently remaining in the new location, at which his death occurred, so far as the right of administration of his estate in the county was concerned.</p> <p>3 Evidence: communications with decedent: conclusion. A dece dent’s divorced wife, not a party to a proceeding in relation to the settlement of his estate nor in any way interested therein, is not disqualified from testifying to the contents of letters written by deceased, which she had read, bearing upon his intention to change his place of • residence. It was also proper for her to state whether deceased was conscious when she saw him at a certain time and place, as it related to a fact within her observation and was not therefore a conclusion.</p> <p>4 Settlement of estates: supplementary proceedings : relief. In this proceeding administration was granted where decedent died, and ■ his property was distributed. It was also afterward granted in another county where he formerly lived and claims were there filed against the estate and proceedings brought to reach property in the hands of the distributees. Held, that, upon a finding that decedent was not a resident of the latter county it was proper ’to dismiss the proceedings without cancelling the letters of administration, where the same was no part of the relief asked,</p>

— Hon. P. O. Ellison, Judge. Suit in equity for an accounting, brought by the executor of the estate of William Pieper, deceased, against defendant, who is his widow. The trial court dismissed plaintiffs petition, and he appeals.' —

<p>Transfer of causes from superior to district court: statutes: jurisdiction. The statutes relating to a change of venue from a superior court to the district court, on the ground that defendant is a nonresident of the city in which the superior court is held, are mandatory and require an unconditional transfer of the cause; and upon making the order the superior court loses jurisdiction both of the parties and of the subject matter.</p>

<p>Appeal from Cedar Rapids Superior Court. — IIon. J.' II. Kotiirocic, Judge.</p> <p>The opinion states the case. —</p>

<p>I New trial: questions reviewable on appeal. An order setting aside a verdict and awarding a new trial must rest on the merits of the grounds assigned in the motion, and the appellate court will not review rulings which are not challenged by the motion nor involved in the issues of law raised thereby. The ruling herein on a demurrer to the petition was not involved in the motion for a new trial.</p> <p>2 Same: discretion of court. The granting of a new trial is so largely a matter of discretion that the order of the trial court will not be disturbed except upon a clear showing of an abuse of such discretion; and the real inquiry on appeal is whether the record shows sufficient ground on which to sustain the ruling.</p> <p>3 Same. In the present case, which is an action for damages for the loss of property by fire, the evidence disclosed the actual value of the property to be several hundred dollars and that plaintiff had collected several hundred dollars insurance money. The court charged that the measure of damages was the actual value of the property, but failed to advise the jury of the effect to be given the collection of the insurance money. ■ Held, that the setting aside of a nominal verdict for plaintiff, as contrary to the instructions, was within the court’s discretion.</p> <p>4 Action for damages: parties. The petition in this action discloses that plaintiff had collected insurance on the property destroyed by fire, and the defendant demurred to the petition for failure to make the insurance company a party, but the court holds that as the insurance company could by formal disclaimer or an assignment of its interests to plaintiff eliminate any further right in the premises, it was not a necessary party; and the fact that the assignment, from the insurance company was made subsequent to the commencement of the action is held to have been immaterial.</p>

<p>Appeal from Benton District Court. — IIon. J. M, Parker, Judge, .</p> <p>Action at law to recover-damages for malicious prosecution. Judgment for plaintiff, and defendant appeals. — ’</p>

— IIon. E. O. Ellison, Judge. Action to recover compensation for medical services rendered by plaintiff, wbo is a physician, to one Chas. Jones, who, it is claimed, was a pauper who had been injured through a fall .from a circus train which was passing through defendant county. The case was tried to a jury, resulting in a'n instructed verdict for plaintiff, and defendant appeals. —

<p>Appeal from Jones District Qourt. — Hon. F. O. Ellison, Judge.</p> <p>Action for damages resulted in judgment against defendant, from which it appeals. —</p>

<p>I Slander and libel: larceny of a promissory note. A promissory note is a thing of value, even though paid and returned to the maker, and is the subject of larceny; and to charge one with stealing such a note is a slander which is actionable per se.</p> <p>2 Instruction: burden of proof. An instruction to the effect that in determining the preponderance of evidence the jury should consider the opportunities of the several witnesses for acquiring a knowledge of facts detailed, and from the same determine on which side is the weight or preponderance of evidence, is not an instruction casting the burden of proof on either party.</p> <p>3 Slander and libel: words actionable per se: instruction. In an action for slander, where the plain import of the testimony charged plaintiff with stealing a note, there was no occasion to instruct that the slanderous words must be taken in the sense in which the hearers uflderstood them; and besides the slanderous words were actionable per se and therefore presumed to have been so understood, and if not so understood then it was for defendant to so show.</p> <p>4 Same: damages: mental pain and suffering. Where the words spoken are slanderous per se, mental pain and suffering is an element of damages. Overruling Prime v. Eastwood, 45 Iowa, 640.</p>

<p>Appeal from Dubuque District Court. — 'Hon. Bobert Bonson, Judge.</p>

— IIon. W. N. Treici-iler, Judge. The petition alleged that the plaintiff entered into a contract with defendant to drill a twelve-inch well to be used for city purposes on the following terms, the city being designated as party of the first part and plaintiff as party of the second part: Party of. the first part agrees.'to pay unto party of the second part four dollars per foot for the digging of said well, to be drilled as deep as the party of the first part shall see fit,…

— Hon. M. O. Matthews, Judge. Action at- law to recover damages for personal injuries received by plaintiff, resulting from his being struck by an engine on one of defendant’s tracks in the city of Dubuque. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. —

<p>I Sale contracts: delivery. Time for delivery may be made the essence of a contract of sale, and when fixed is generally so regarded; however it may be waived or a new time fixed, but that will not constitute a new contract, and the same rules regarding delivery will apply.</p> <p>2 Same: failure to deliver: rescission: damages. Where time of delivery is made the essence of an entire and indivisible contract of sale, and for a stated consideration as a whole, failure to make timely delivery of the whole or a portion of the subject of purchase will authorize • a rescission and recovery of damages for the breach, unless there has been a waiver of the breach, which is usually a question for the jury; and where the contract embraces a given quality of goods it is immaterial that a separate price is fixed upon each lot number of the articles purchased.</p> <p>3 Same: entire and severable contracts: how determined. The entirety of a contract depends upon the intention of the parties and not upon the divisibility of the subject matter, although the severable nature of the latter may assist in determining the intention; nor will the mode of ascertaining the price change the effect of an agreement shown to be entire.</p> <p>In this case there was an order for a quantity of clothing to be delivered at a fixed time. The price of different articles was separately stated. There was a ■ shipment óf a portion of the order and a retention of the same for a time when it was returned to the seller. Held, that the character of the contract, whether entire or severable, and whether any part of the goods were delivered within the agreed time were questions for the jury.</p> <p>4 Same: delivery: rescission: waiver. Mere receipt of part of. a stock of goods and retention in expectation of soon receiving the balance is not a waiver of the right to rescind for failure to deliver within a specified time: nor is it a waiver of the right to demand damages for the delay in delivery.</p> <p>5 Same: rescission: evidence. Rescission of a contract need not be by an express repudiation of it, but if the acts of one party, known to the other, clearly indicate such an intention it is sufficient. Evidence held to require submission of the question whether • the acts and correspondence of the buyer of goods constituted a rescission of the purchase.</p>

<p>I Municipal corporations: street improvement: drainage: negligence : instruction. The liability of a city for grading' a street without leaving culverts therein to carry the overflow water from a stream previously passing over the street, thus flooding the adjacent land, is predicated upon the negligent and unskillful performance of the work, to be determined from the topography in that neighborhood, the existing improvements and the character of the stream; and an instruction assuming the duty of the city to construct culverts irrespective of the question of its negligence was erroneous.</p> <p>2 Same: drainage: overflow waters: material increase: instruction. To render a city liable in damages caused by an overflow of surface water after the grading of a street without providing culverts to carry the water across, it must appear that the volume of overflow water was materially and unduly increased by the embankment and lack of culverts, and the jury should be so instructed.</p>

— Hon. D. V. Jackson, Judge. Suit in equity to reform a policy of fire insurance and to recover the amount thereof because of a loss thereunder.

— Hon. M. A. Roberts, Judge. Action to restrain the defendants from using or improving an alleged public street in the town of Agency City. Decree for the defendants, and plaintiff appeals,—

<p>Appeal from Adams District Court. — Hon. H. K. .Evans, Judge.</p> <p>This is an action of foreclosure. There was a decree for the plaintiff'as against the principal defendant, and for the defendant Clara K. Worley as a subsequent lienholder. The plaintiff appeals. —</p>

<p>Appeal from Woodbury District Court. — Hons. F. B. Gaynor and David Mould, Judges.</p> <p>In an action brought by plaintiff against defendant Margaret Tinney, involving the ownership of certain real estate, Margaret Wallace intervened. Thereafter Letitia Wallace sought to be substituted for Margaret Wallace on the ground that she had been appointed guardian for Margaret Wallace; she, Margaret, being of unsound mind. Plaintiff objected to the substitution because Letitia Wallace had never been legally appointed guardian. These objections were overruled. Thereupon plaintiff filed a plea in abatement of intervener’s petition, -based upon the ground that the substituted intervener had no authority to prosecute the same. Letitia Wallace demurred to this plea, and the demurrer was sustained, and the plea of abatement stricken from the files. Plaintiff appeals.—</p>

— Hon. Wm. ** Hutoi-iinson,-Judge. Action to recover damages for the flooding of plaintiff’s land by the defendants city and the railway company, and for an injunction to restrain the continuance of the nuisance. The case was tried to the court as in equity, and at the conclusion of plaintiff’s testimony the trial court sustained a motion, directing a decree for the railway company, from which no appeal has been taken.

— Hon. J. H. Applet gate,- Judge. Action to recover the purchase price of certain cream separators sold by plaintiff to defendant. Defendant admitted the purchase of the separators, but pleaded that the contract therefor was ultra ■vires and void. The case was tried to a jury, and, at the conclusion of the testimony, the trial court on motion directed a verdict for defendant. Plaintiff appeals. —

— Hon. Fbanklin C. Platt, Judge. Action to recover damages for personal injuries .alleged to have been received by plaintiff while in defendant’s employ, and resulting from defendant’s negligence. At the conclusion of the evidence, there was a directed verdict for the defendant. From judgment on this verdict, plaintiff appeals. —

<p>Intoxicating liquors: injunction: contempt. A written statement of general consent to the sale of intoxicating liquors is not procured or approved with respect to any particular individual; it authorizes the municipality to consent to the sale by any person it may designate, upon his compliance with the other requirements of the law, and continues until revoked; so that one who has been enjoined because of an unlawful sale, but subsequently complies with all the provisions of law, is not in contempt for violation of the injunction by further sales without procuring a new general consent of the voters.</p>

— Hon. C. Gr. Lee, Judge. These two cases, while not consolidated, were submitted together in the district court, and they are so submitted here. The first is an action in equity to recover the balance of the purchase price of land sold on an oral contract and to foreclose a vendor’s lien. The second is a suit in equity to subject the same land to the payment of a judgment in favor of the plaintiff and against the defendant M. C. Seal.

<p>Appeal from Wapello District Court. — IIon. D. M. Anderson, Judge.</p> <p>The plaintiff, as Treasurer of state, brought this action against the defendant as executor of the estate of James E. Wilson, deceased, and against certain devisees named in his will, to recover a collateral inheritance’tax upon the property devised to such devisees. Relief was granted as prayed as to all defendants save one, viz., the local Masonic lodge of Ottumwa. As to such defendant devisee, the trial court dismissed the petition. Erom such order of refusal, plaintiff appeals. —</p>

<p>Taxation: assessment of omitted property: appeal: injunction. A county treasurer has jurisdiction to assess .omitted property; and where executors were notified that property of the estate had been omitted from taxation and that the matter would be heard at a certain time, when the executor appeared and by agreement an adjournment was taken to a certain day, for the purpose of preparing an agreed statement of facts upon which to submit the matter to the court for a ruling; It is held, that upon failure to agree on a statement of facts and of the- executors to appear before the treasurer on the adjourned day, it was competent for him to make the assessment, and the executors were bound to take notice thereof; and the action of the treasurer in making the assessment was at most erroneous, the remedy for which is an appeal and not a suit for injunction.</p>

— Hon. James H. Rothrock, Judge. An action in equity to enjoin the defendant the Illinois Central Railway Company from interfering with or preventing the defendant the Chicago, Rock Island & Pacific Railway Company from delivering cars of coal over the tracks of said Illinois Central Company to the plaintiff’s electric light and power plant. There was a decree for the plaintiff, and the defendant the Illinois Central Railway Company appeals. —

<p>I Mayors: criminal jurisdiction: false imprisonment: civil lia1 bility. Mayors have jurisdiction to cause juvenile offenders to be brought before them to be dealt with on preliminary information; and even though they have no authority to punish a juvenile under seventeen years of age by fine or commitment, still having original jurisdiction of the subject matter for the purpose of preliminary inquiry, they are not liable in damages for false imprisonment for merely exceeding this jurisdiction and imposing a fine or ordering a commitment.</p> <p>2 Same: malice: evidence. In this action for false imprisonment the evidence is held insufficient to show malice on the part of the ' magistrate for committing plaintiff to jail instead of imposing a fine.</p> <p>3 False imprisonment: service op process : civil liability. Where a magistrate has jurisdiction of a criminal inquiry but exceeds his authority, ,the officer serving a process regular on its face is not liable in a civil action for false imprisonment.</p>

— Hon. F. O. Ellison, J udge. Action to set aside the probate of a will on the grounds of mental incapacity and undue influence. There was a directed verdict for the defendants. The plaintiff appeals. —

— IIon. Robert M. ■ Weight, Judge. In a supplementary proceeding to compel the Wabash Railroad Company, garnishee, to pay to plaintiff a specified part of a sum of money which had been paid by it to defendant in settlement of a claim for damages on account of personal injuries, the court rendered judgment for the plaintiff as against said garnishee, and the garnishee appeals. —

— -Hon. James A. , Howe, Judge. Suit to recover damages for the death of O. A. Carl-sou. Plaintiff had judgment for $8,250 and the defendant appeals. —

<p>Appeal from Oedar Rapids Superior Court. — Hon. James H. Rothrock, Judge.</p> <p>Action to recover damages for injuries sustained by plaintiff while in the employment of defendant and alleged to have been caused by negligence of the defendant in allowing the machinery with which plaintiff was working to be in a defective condition. There was a verdict for plaintiff, and from judgment thereon defendant appeals.-</p>

— Hon. D. M. Anderson, Judge. Action to recover damages on account of tbe death of plaintiff’s intestate, Arthur Parker,' -from injuries received by him while employed in defendant’s mine. There was a verdict for defendant, and plaintiff appeals. —

Four suits to enjoin the maintenance of liquor nuisances were begun in tbe name of the state by the county attorney. In the first, or that against Muelhaupt, Van Buskirk et al., the owners of the premises in which intoxicating liquors were alleged to have been kept for sale and sold in violation of the law were named as defendants, but not notified of the pendency of the action.

— Hon. H. M. Anderson, Judge. ' Defendant was indicted, tried, and convicted 'of the crime of prostitution, and appeals to this court. —

— Hon. W. Gk Clements, Judge. Action to quiet title to a lot in the town of What Cheer, of which plaintiff claims to be the owner. The defendant in answer and cross-petition claims .ownership in himself, and asks that the title be .quieted in him. There was a decree for plaintiff, and defendant appeals.—

— Hon. J. F. Oliver, Judge. The defeudaut was indicted for murder in tbe second degree, committed in tbe billing of one Mel Powers. Tbe conviction was for manslaughter, and defendant appeals.—

<p>Wills: construction: after acquired property. A will should be construed according to the intent of the testator, and so as to give.effect to all its provisions if possible. Under these rules a devise of all testator’s real estate (describing it) “and also including all other real estate now owned by me” is held to include after acquired real property; the word “now” having reference to the time of testator’s death.</p>

— Hon. David Mould, Judge. Action aided by attachment to recover a commission for the sale of real estate. The defendant denied that plaintiff procured a purchaser for his land, and pleaded that he sold the land himself. Efe also pleaded a counterclaim for damages growing out of the attachment, based upon the ground that he was not indebted to the plaintiff in any sum whatever, and that the attachment was wrongfully sued out.

— Hon. Frank W. Eioi-ielberger, Judge. This is au action to foreclose a real estate mortgage against the administrator of the mortgagor, and against Eachel Clark, his widow, and others. There was a decree for the defendants, on the ground that the action was barred by the statute of limitations. —

<p>Appeal from O’Brien District■ Court. — Hon. Wm. Hutchinson, Judge.</p> <p>The defendant was convicted of larceny, and appeals. The material facts are stated in the opinion.</p>

<p>I Partition: retention of funds : liability of referee for interest. Under the record in this action to partition and distribute decedent’s estate, the court properly ordered the referee to hold the proceeds arising from the sale of the property until the question of advancements to an heir was determined, and that the referee was not chargeable with interest on such funds while so held.</p> <p>2 Same: decree: conformity to issues: advancements: evidence. . Where an issue is not presented by the pleadings until the evidence has been taken, it should not be adjudicated by the decree even though there is evidence tending to support it; as where it was sought in a proceeding for the partition and distribution of decedent’s estate to raise the question of an advancement after the evidence had been taken. But in the instant case the evidence is held to show a gift rather than an advancement.</p> <p>3 Same: sale of property: interest of widow: rents: costs. While a widow has no specific interest in real estate or after accruing rents which she can recover from the administrator prior to an assignment of her distributive share; still, where an assignment of her distributive share can not be made in kind because of the necessity to sell the property to make partition, she is entitled to her interest in the proceeds, including rents received; and the administrator has no right to pay any debts of the estate therefrom, or to charge her share with any of the costs of administration.</p>

. Appeal from Monroe District Court. — Hon. Frank W.' Eichelberger, Judge. Action in equity to establish a lien on personal prop: erty. There was a judgment for the defendants, from which the plaintiff appeals. —

— Hon. M. A. Roberts, Judge. Action to quiet title. The court sustained a demurrer to defendant’s answer, and, on election of defendant to stand on his pleading, a decree was entered for plaintiff, from which defendant appeals. —

— Hon. D. M. Anderson, Judge. Action to enjoin defendant from enforcing collection of a special assessment against property of plaintiff resulted in the dismissal of the petition. The plaintiff appeals.—

<p>I Insurance: loss of live stock by lightning: sufficiency of evidence. This is an action to recover insurance on a horse found dead. Officers of the company investigated the loss. As the evidence was conflicting regarding a dark streak in the flesh of the animal, and as to whether there was lightning in that vicinity at about the time of the loss, these questions were for the jury; and as „ the dark streak indicated death by lightning the verdict for plaintiff was sustained by the evidence.</p> <p>2 Same: notice and proof of loss: waiver. Where the officers of an insurance company immediately investigate a loss and deny all liability, the right' to insist on strict compliance with the terms of the policy exacting preliminary notice and proof of loss is waived.</p> <p>3 Same: description of property: liability for loss. Where an in- surance policy ■ covering live stock merely described the same as located at a certain place, this amounted simply to an identification of the stock by its location and did not limit liability for loss at another place.</p>

— Hon. Frank W. Eichelberger, Judge. Action at law upon a promissory note, and to foreclose a real and chattel mortgage given by defendants to the First National Bank of Chariton, Iowa. Defendants pleaded payment of the note to one Crocker, the cashier of said bank. Plaintiff denied the payment, and also pleaded an estoppel upon defendants from insisting thereon. The case was tried to the court, resulting in a decree dismissing plaintiff’s petition. Plaintiff appeals. —

— Hon. Byron W. Preston, Judge. This is a proceeding under chapter 78, Acts 33d General Assembly, for tbe removal of tbe defendant as mayor of the city of Marengo. There was a trial to the court which resulted in an order of removal. The defendant has appealed. —

<p>Appeal from Madison District Court. — IIon. Edmund Nichols, Judge.</p> <p>This is a proceeding brought by the defendants to set aside a judgment obtained by the plaintiff, and to obtain a new trial under the provisions of section 4091 of the Code. The trial court granted the relief prayed, and ordered a new trial. Plaintiff appeals. —</p>

<p>Appeal from Poweshiek District Court. — Hon. Byron W. Preston, Judge.</p> <p>The defendant appeals from conviction of having undertaken to treat persons afflicted with disease and of publicly professing to cure and heal without a license.—</p>

— IIon. H. M. Towner, Judge. Indictment for assault with intent to commit rape. Verdict and judgment of guilty, and defendant appeals.—

— How. W. G-. Clements, Judge. This is au action to establish the right of plaintiff to an easement for road purposes over the real estate of the defendants. There was a decree for the plaintiff. The defendants appeal. —

<p>I Tax sale: subsequent incumbrances: notice of lien. The record of a regularly conducted tax sale is constructive notice to a subsequent mortgagee of the lien thus created.</p> <p>2 Same: mortgages: redemption from tax sale. Where property at the time of the execution of a mortgage thereon had been sold for taxes to a purchaser in no way identified with the mortgagor, a subsequent purchase of the sale certificate by and issuance of a tax sale deed to a son of the mortgagor, who became his sole heir, did not operate as a redemption from the sale, the heir having acquired his title wholly independent of any interest of his father.</p>

— Hon. W. G. Clements, Judge. Suit for the partition of real estate. The trial court granted plaintiffs the relief demanded, and defendants appeal. — Reversed.

J. P. Lyman, Judge. Action for damages resulted in a verdict for defend-ant and judgment on a counterclaim. The plaintiff appeals. —

<p>I Taxation: sale of property: compliance with statutes. The statutes relating to the sale of property for taxes must be strictly complied with to divest the owner of his title; although variations of a merely formal character, or which do not amount to a substantial departure from the method prescribed, may be disregarded.</p> <p>2 Same: notice of intention to take deed: description of property. The notice of intention to take out a tax deed must describe with reasonable certainty the property to which the purchaser at the sale proposes to demand the conveyance. In the instant case the description contained in the notice is held insufficient to divest the owner’s title.</p>

<p>I Appeal: service of notice: jurisdiction. Failure to serve notice of appeal on a ■ co-party who will be adversely affected by any change in the decree appealed from will deprive the appellate court of jurisdiction.</p> <p>2 Service of notice: acknowledgment. The signature to the acknowledgment of service of process, when dated and in proper form, will be presumed genuine, in the absence of evidence to the contrary,</p>

— Hon. William Hutchinson, Judge. This is an action in equity on a contract. The relief prayed is in the nature of a specific performance. There was a decree for the plaintiff, and the defendant appeals. — ■

■ Appeal from Jasper District Court. — How. W. Gk Clements, Judge. Suit at law to recover damages for personal injury. At the close of the plaintiff’s evidence the court directed a verdict for the defendant, and rendered a judgment on said verdict against the plaintiff for cost. The plaintiff appeals. —

<p>Appeal from Jefferson District Court. — Hon. M. A'. Roberts, Judge.</p> <p>Indictment for grand larceny. Verdict and judgment of guilty. .Defendant appeals. —</p>

— Hon. A. J. House, Judge. The plaintiff filed a petition in the office of the clerk of the district court for Scott County, praying that a certain decree, granting alimony to the defendant herein, be canceled and vacated, and that a levy made thereunder he released and that a temporary injunction be granted, pending the application, restraining the enforcement of said alleged void judgment for alimony. The petition was demurred to and the demurrer sustained.

— Hon. Henry Bank, Jr., Judge. In an action in probate by the executor of the estate of Johanna Brandes, deceased, to sell the real estate of which she died seised for the payment of debts, Mina Hoyer and Conrad Hoyer, by way of answer to the application, sought to have costs recovered against the deceased in another proceeding, declared to be a lien upon the real property of the deceased or the proceeds thereof.

— Hon. J. H. Preston, Judge. This is a suit in equity, brought to recover for work done and material furnished in the construction of a concrete building to be used for a malting plant. The work and material were furnished under a written contract. The plaintiff also asked the foreclosure of a mechanic’s lien thereon.