Volume 146 — Iowa Reports

— Hon. R. P. Howell, Judge. Action at law to recover upon a benefit certificate or life insurance policy issued by the defendant upon the life of W. H. Magness. There was a judgment for the plaintiffs, and defendant appeals .

K. E. Willcockson, Judge. Action at law to set aside the probate of a will. At the conclusion of plaintiffs’ evidence the court sustained a motion to direct a verdict for defendant, and from a judgment against the plaintiffs for costs rendered on such verdict the plaintiffs appeal.

— Hon. A. J, House, Judge. Action at law to recover damages for injuries occasioned to plaintiff’s cattle in a collision with defendant’s engine on a highway crossing. Judgment for plaintiff, and defendant appeals.

— Hon. 'H. M. Towner. Judge. Suit on a contract of fire insurance. There was a directed verdict and a judgment for the plaintiff. The defendant appeals.

<p>'Appeal from ■ MaJiaslca District Court. — Hon. W. G. Clements, Judge</p> <p>Action to foreclose mortgage resulted in decree as prayed. The defendant appeals.</p>

Edmund Nichols, Judge. This is a proceeding for the construction of the will of F. M. Ogle, deceased. From, the order of the district court sitting as a court of probate, the administrator appeals.

■Appeal from Taylor District Court. — Hon. H. M. Towner, Judge. The administrator of tbe estate of S. C. Freeman and all tbe beirs of tbe said Freeman filed motions and petitions for tbe construction of tbe will of tbe deceased.

— Hon. B. W. Preston, Judge. This is an appeal from an order of distribution made by the trial court upon the final report of the administrator. The facts are stated in the opinion.

<p>1 New trial: newly discovered- evidence : diligence. A new trial will not be granted on the ground of newly discovered evidence, where it appears from the showing made in support of the application that the evidence sought might have been elicited from the witness on the trial, but for the fault of the party making the application. Nor will it be granted where diligence was not used in procuring the evidence before the trial.</p> <p>2 Same: pleading. A general allegation of diligence in the effort to’ procure evidence is not rendered sufficient by a demurrer, where the facts pleaded, which must govern, do not support the conclusion. •</p> <p>3 Same: divorce: evidence. Where a petition for divorce charges adultery at certain times and places, evidence of prior adultery will not afford ground for divorce; and if offered as showing an adulterous disposition would be simply cumulative and insufficient to authorize a new trial.</p> <p>4 Same. A new trial of a divorce action will not be granted because of error in awarding alimony.</p>

<p>1 Real property: fixtures: mortgages: priority of liens. A frame building resting upon stone and brick piers and occupied by the owner as a shop is a part of the realty, and machinery therein, parts of which are attached to the building and other parts resting upon the floor, but connected by belting or otherwise with the power operating the plant, all used in connection with the business, are also a part of the realty, and the building and fixtures will pass under a mortgage describing the land.</p> <p>2 Chattel mortgages: recording: notice. The recording of a chattel mortgage covering a building and machinery forming a part of the realty is not notice to a subsequent mortgagee of the realty; and the recital in a real estate mortgage of incumbrances of a specified amount is not notice to the mortgagee of a chattel mortgage covering a part of the property.</p> <p>3 Mortgages: priority of liens. The owner of real property can not convert an integral part of it into personalty merely by an election to call' it personalty; nor can he create a lien by the execution of a chattel mortgage which will in any way affect the lien of a prior mortgage on the realty.</p>

— Hon. H. M. Towner, Judge. In an action brought by plaintiff against defendant, Charles G. Stoaks, for a divorce, there was an attachment against defendant’s property for alimony, which was. levied on domestic animals and farm implements., the property of defendant.

— Hon. Frank W. Eichelberger, Judge. Appeal from an order of the district court dismissing a writ of error from a justice of the peace to the said district court.

<p>Appeal from Jasper District Court. — Hon. K. E. Willcockson, Judge.</p> <p>Proceeding for probate of a will. Contest by heirs. Verdict iu favor of contestants, and proponents appeal. On rehearing.</p>

— -Hon. J. F. Oliver, Judge. This is an action for damages for personal injuries arising out of alleged negligence of a landlord in repairing premises. At the close of plaintiff’s evidence, there was a directed verdict for the defendants. Plaintiff appeals.—

— Hon. W. G. Clements, Judge. Aureal from tbe action of tbe probate court in approving tbe final report of defendant Brookhart, as administrator, and ordering payment to tbe widow of deceased of one-tbird tbe gross proceeds of bis real property, ordered by tbe court to be sold for tbe payment' of debts. Tbe plaintiffs and appellants are tbe beirs of tbe deceased in'terested in the distribution of the proceeds of the sale.-—

— Hon. M. A. Roberts, Judge Action at law upou two promissory notes made and executed by defendants, E. J. and William Miller, to the plaintiff bank. The defendants admitted the execution of the notes, but pleaded laches on plaintiff’s part, and an estoppel due to its conduct with reference to the notes. Upon' defendants’ motion the .cause, over plaintiff’s objections, was transferred to the equity docket for trial.

— Hon. J. A. Howe, Judge. Action at law to recover damages under our civil rights statute. - Defendants, filed an answer, to which plaintiff demurred. Her demurrer being overruled, she appeals.

<p>Elections: canvass of returns: abstract of vote: bublication. The statutes relating to the canvas and abstract of election returns by the board of supervisors, and providing for a publication of. the returns, require the board to make an ‘abstract of the election returns as canvassed and received from the various precincts, and that the auditor shall furnish for publication a schedule showing the vote by precinct of each person voted for at the election.</p>

<p>Appeal from Mahaska District Court. — Hon. B. W. Preston, Judge.</p> <p>The defendant appeals from a judgment of _ conviction on o charge of adultery.</p>

— Hon. M. A. Roberts, Judge. Action at law to recover damages for injuries received by plaintiff in a collision with a street car owned and operated by defendant upon a street in the city of Ottumwa. At the conclusion of the testimony the trial court directed a jury which had been impaneled for the trial of the case to return a verdict for defendant, which was accordingly done, and plaintiff appeals.

<p>Appeal from Jefferson District Court.- — Hon. F. W. Eichelberger, Judge.</p> <p>Suit on a policy of insurance. A demurrer to the petition was sustained, and the plaintiff appeals,</p>

— Hon. Byron W. Preston, Judge. Two actions brought by plaintiff, one to annul a contract entered into between defendant town and J. J. and Henrietta Watkins for the purchase of a lot whereon- to erect a city building; to cancel the deed therefor; to compel a restitution of the funds paid for the lot; and to recover judgment therefor; and the other to annul and set aside certain contracts made by defendant town with defendants Coutts and Ormiston for the erection of aa…

— Hon. William: Hutchinson, Judge. This is an action for double damages for the killing ' of stock upon defendant’s railway at a place where it had an alleged right to fence. At the close of plaintiff’s evidence, the trial court directed a verdict for the defendant. Plaintiff appeals.

— Hon. K. E. Willcockson, Judge. This is an original and independent action to contest a will. At the close of the evidence, the court directed a verdict for the defendants. Plaintiffs appeal.—

— Hon. C. W. Ver- ■ million, Judge. This is an action in equity, brought by plaintiff as receiver of the Wapello 'Loan & Building Association, to set aside a settlement by defendant with the secretary of the company, by which a certificate of four shares of stock of the association of the par value of $1,200, originally belonging to Mrs. Ellen Nowe, the mother of defendant, were paid in full and canceled, and a bond and mortgage for $1,200 borrowed from the association by…

<p>Physicians: services rendered poor persons: compensation. A physician who attended poor persons afflicted with contagious disease at the direction of the mayor and presented his bill for services rendered to.the local board of health, which they approved, is entitled to reasonable compensation for the services from the county, even though the same were performed without legal sanction.</p>

<p>1 Intoxicating liquors: violation of injunction: more than one room : contempt. There is no distinction in law between a wholesale and retail liquor business so far as the- number of rooms which may be lawfully used in the business is concerned, and a use of more than one room for wholesaling and retailing liquor is a violation of an injunction previously issued, although the additional room was used wholly for wholesale purposes.</p> <p>2 Same: listing of employees. Where a liquor business is conducted by a corporation the corporation is the employer, and owners of stock engaged in its service are required by the statute to be listed as employees. , *</p>

<p>Appeal from O’Brien District Court. — Hon. ' Wm. Hutchinson, Judge.</p> <p>The opinion states the case.</p>

— Hon. H. K. Evans, Judge., Action to recover on promissory notes and for an attachment. Defendant admitted liability to the amount of the notes and interest, but interposed a counterclaim for damages for a wrongful suing out of the attachment. There was a verdict for plaintiff in the amount of the claim sued on less $540, allowed defendant by way of damages for the wrongful attachment, and the court allowed by way of costs to the defendant $300 as attorney’s fees.

<p>Appeal from Benton District Court. — Hon. J. M. Parker, Judge.</p> <p>Action for partition of real estate, and for an accounting as to rents and profits. There was a decree for defendants dismissing plaintiff’s petition, and the plaintiff appeals.</p>

<p>Appeal from Clinton District Court. — Hon. A. P. Barker, Judge.</p> <p>Action at law to recover damages for breach of a contract of insurance entered into by defendant with plaintiff, for which breach, consisting of a change in defendant’s constitution, plaintiff claims to have rescinded the contract, and he asks to recover the amount of premiums paid. The trial court gave plaintiff judgment, and defendant appeals.</p>

— Hon. David Mould, Judge. Action to recover damages for defendant’s delay in a shipment of live stock from Glen Ellen to the Sioux City Stockyards. Defendant denied all negligence, and in substance averred that, if there was any delay, it was on the part of a connecting carrier for whose negligence it was not responsible. The case was tried to a jury, and at the conclusion of the testimony the trial court directed a verdict for defendant, and plaintiff appeals.

— Hon. O. W. Vermillion, Judge. Petitions in the entitled causes were presented to Hon. C. W. Vermillion, a judge of the Second Judicial District, and a hearing on April 12, 1909, ordered. Subsequently petitions of intervention praying for 'the same relief and answers to both pleadings were filed. A hearing was had, at the conclusion of which temporary writs of injunction were denied and from this ruling in each case E. A. Mills appeals.

<p>Appeal from Union District Court. — Hon. H. M. Towner, Judge.</p> <p>This is an action in equity, wherein injunction is prayed, restraining the defendant from prosecuting or defending suits in controversies between plaintiff and defendant. • There was a demurrer to the petition, which was sustained by. the trial court. Plaintiff electing to stand upon his petition, judgment was entered dismissing the case, and the plaintiff appeals.</p>

<p>Malicious prosecution: civil liability: evidence. An action for malicious prosecution based upon a charge of lewdness will not lie against a defendant who had nothing to do with filing the information charging plaintiff with the crime, issuance of the warrant or with the prosecution of the action, and whose only connection therewith was in watching plaintiff’s premises for the purpose of obtaining evidence to counteract a rumor that defendant himself was unduly intimate with plaintiff.</p>

<p>1 Quieting title: adverse possession: evidence. The plaintiff in a suit to quiet title must recover on the strength of his own title: And evidence that plaintiff’s cattle strayed from his own land across a river and pastured upon uninclosed land on the other ,side will not support a claim of adverse possession, in the absence of any color of title or claim of right thereto, as distinguished from the general common right' to pasture cattle upon such uninclosed land.</p> <p>2 Same: decree. The granting of relief upon the cross-bill of one codefendant against plaintiff and other codefendants, in a suit to quiet title, is a matter of which the plaintiff can not complain, where he had no interest in the premises and the codefendants were not objecting.</p>

<p>Habeas corpus proceedings. The material facts are stated in the opinion.</p>

<p>Appeal from, Keokuk District Court. — Hon. W. G. Clements, Judge.</p> <p>Appeal from an order -of the district court to an assignee for the benefit of creditors to turn over certain property to the mortgagees of the assignor.</p>

— Hon. Edmund Nichols, Judge. John A. Murphy died seised of a quarter section of land. This is an action to establish the right of plaintiff as bastard son to inherit the same. The petition was dismissed, and plaintiff appeals.

— Hon. Charles E. Ransier, Judge. This is a proceeding brought by the plaintiff under the statute to enjoin the defendants from maintaining an alleged nuisance upon their premises in the vicinity of Reinbeck. There was a decree for the plaintiff, and the defendants appeal.

<p>1 Resulting trusts: parole evidence: sufficiency. A guardian seeking to establish a resulting trust by parol, for the purpose of impeaching the legal title to land in favor of his ward, must support his claim by clear and satisfactory evidence; especially where he is relying on parol proof of declarations of a deceased legal owner made many years before the institution of the suit, and unaccompanied by any evidence of the recognition by decedent of any trust, or of any action on the part of the ward asserting any right to the property.</p> <p>2 Equitable actions: evidence: determination of admissibility: trial de novo. On a motion to dismiss a bill in equity for want of evidence authorizing the relief asked, the court may determine what evidence offered by plaintiff and received without rulings on .objections interposed at the time may properly be considered; and the appellate court in such equitable action may determine the competency and admissibility of the evidence received without rulings upon objections thereto, in reaching a conclusion on the merits of the case.</p> <p>3 Resulting trusts: evidence. To support a resulting trust in favor of a grantee who, on the date of the conveyance to him made a conveyance to another, the evidence must show that some part of the purchase price was paid by such grantee, or that money advanced by him was used in payment of the price or some part thereof.</p> <p>4 Trusts: evidence. In this action to establish a trust in land in a parent, who acquired title through a son acting merely as a conduit for passing the title, evidence simply that the parent expressed a purpose at some future time to convey the land to the son as a provision for him, was, in the absence of any evidence of an agreement to hold the title as an inducement for the conveyance to the parent, ináufficient to establish the trust.</p> <p>5 Same. Where a parent, in whom it was sought to establish a trust in land in favor óf a son, managed the property as the head of the family, transacting the business and receiving the proceeds of the land, the fact that the son worked on the farm, but with no contract with the parent under which he was to receive the proceeds of the land, and no portion of the proceeds was turned over to him as his own, did not establish in him a right to the proceeds.</p>

<p>'Appeal from Hamilton District Court. — Hon. O. Q-. Lee, Judge.</p> <p>The plaintiffs appealed to the district court from an assessment on their property of a portion of the expense for the construction of a drainage ditch. The district court overruled their objections and confirmed the assessment, and from this decree they now appeal to this court.—</p>

<p>Appeal from Hamilton District Court. — Hon. C. E. Albrook, Judge.</p> <p>The defendant was convicted of assault with intent to commit manslaughter, and appeals.</p>

— Hon. D. Y. Jackson, Judge. Suit in equity asking the cancellation of a promissory note. ’There was a judgment for the defendant, from which the plaintiff appeals.

<p>Appeal from Hamilton District Court. — Hon. C. E. Albrook, Judge.</p> <p>Derendant was indicted, tried, and convicted of being addicted to the excessive use of intoxicating liquors, and appeals.</p>

<p>1 Husband and wife: desertion: evidence. In a prosecution for wife desertion, where the husband admitted the desertion but claimed to have good cause therefor, letters written by the husband bearing upon his intent in deserting his wife were admissible.</p> <p>2 Same: destitution: evidence. The evidence in this action is held sufficient to show destitution of the wife and to support a verdict of guilty on a charge of desertion.</p> <p>3 Same: security for support: discretion of court. Where the defendant in a prosecution for deserting his wife, after conviction but before sentence, offered a bond under the provision of section 4775c signed simply by himself, the trial court in its discretion was justified in refusing the same.</p>

— Hon. A. P. Barker, Judge. Suit in equity to redeem certain real estate from tax sale. The trial court sustained a demurrer to the petition, and plaintiff appeals.

— Hon. C. G. Lee, Judge. ' . This is an action for damages by an abutting property owner against the city resulting from bringing a street to the established grade, and thereby rendering tbe plaintiff’s residence inaccessible from such street. At the close of plaintiff’s evidence, there was a directed verdict for the defendant. Plaintiff appeals.

<p>1 Agency: commissions: evidence. In an action to recover commissions for the sale of land by an agent, in which there was no claim that any advertisement of the land which the agent made was the means of procuring a purchaser, or of placing one in communication with the owner, evidence that he advertised the property for sale was1 immaterial.</p> <p>2 Same: agency ’contract: performance. The mere fact that the agent urged a prospective buyer to look at the owner’s farm, concerning which he already had full knowledge, was not a showing of the farm within the provisions of the agency contract, obligating the owner to pay a commission in case of a sale to any person to whom the agent might show the land.</p> <p>3 Same: evidence: procuring cause of sale. In this action the evidence is held to sustain the finding of the jury that the agent was not the procuring cause of the sale of defendant’s farm.</p>

<p>1 Municipal corporations: construction of sidewalks: removal oftrees. Where a city ordinance providing for the construction of a sidewalk makes no order or provision for the removal of trees located in the sidewalk space, a member of the street committee has no power to remove the same; especially where the ordinance also provides for a thirty day notice to the owner to construct the walk as a condition precedent to the city’s right to construct the same, which notice was not given. Nor will a subsequent resolution of the council, based upon the ordinance, directing a removal of the trees, confer authority on such committeeman to remove the same in the absence of the required notice to the owner.</p> <p>2 Same. Although a city has general authority to remove obstructions from its streets and may remove trees if found to be an obstruction to the building of walks, it can not do so arbitrarily but must exercise such power in a lawful manner.</p>

Court. — Hon. B. P. Howell, Judge. Action to recover damages for personal injuries alleged to have resulted to plaintiff from the negligence of defendant Winifred Lewis in operating an automobile in such a negligent manner as to frighten a team of horses causing them to break loose from a vehicle to which they were attached and to run upon plaintiff. At the conclusion of the evidence, the court on motion directed a verdict for defendants, and plaintiff appeals.

<p>1 Husband and wife: antenuptial contract: extinguishment op homestead right. In the absence of fraud or unfair advantage an antenuptial contract, which is reasonable under the circumstances and conditions of the parties, involving a mutual relinquishment of all interest of the husband or wife in the property of the other is valid, and will operate to extinguish the homestead right of either in the property of the other.</p> <p>2 Same: what property covered by contract. Although an antenuptial contract applies only to that part of the property of one spouse owned at the time of marriage it will cover property in the possession of the spouse at the time of marriage, occupied as a homestead and constituting the only real estate claimed by such spouse, although the same had been previously and fraudulently conveyed to another, but subsequently in recognition of the unenforceable trust was after the marriage reconveyed.</p> <p>3 Conveyances: consideration : parol evidence. The rule that parol evidence is inadmissible to contradict the recitals of a deed as to the consideration has no application where the question of consideration is raised by one who is a stranger to the deed.</p>

— Hon. J. F. Clyde, Judge. The petition alleged the construction of a spillway in the outlet of Clear Lake by the board of supervisors of Cerro Gordo County, and prayed that said board be enjoined from interfering in any way with the outlet or the flow of water through it. A demurrer to the petition was sustained, but plaintiffs were permitted to bring in other parties as defendants by amendment.

— Hon. David Mould, Judge. Action for commission resulted in a verdict being directed for defendant upon the introduction of evidence in behalf of plaintiff. Judgment was entered, accordingly, from which plaintiff appeals.

<p>Appeal from Scotl District Court. — Hon. J. W. Bollinger, Judge.</p> <p>Action at law to recover damages for personal injury. Judgment for plaintiff, and defendant appeals.</p>

— Hon. Hugh Brennan, Judge. This is an action on a stipulation of settlement in a previous litigation. There was a verdict and judgment for plaintiff, and tbe defendant appeals.

<p>Counterclaim: evidence. In this action defendant pleaded as a counterclaim a bill for services rendered by a law firm, which had been assigned to him. There was no denial that plaintiff was indebted on account thereof, or that the services were performed, or claim that there was any agreement by which the services were not to be paid out of funds which might be collected for plaintiff. Held, that there was no error in sustaining the counterclaim.</p>

<p>Appeal from Polle District Court. — Hon. Hugh Brennan, J udge.</p> <p>Appeal from a decree confirming tbe county treasurer’s assessment of omitted property.</p>

— Hon. F. C. Platt, Judge. Action at law to recover damages for injuries' received by plaintiff due as is alleged to defendant’s negligence in operating an automobile. Defendant’s answer was a general denial. On the issues joined the case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $350. Defendant appeals.

<p>Appeal from Woodbury District Court. — Hon. F. R. Gaynor, Judge.</p> <p>Appeal from judgment confirming an assessment of omitted property by the county treasurer.</p>

<p>1 Adverse possession: limitation of actions. The mere fact that a deed shows on its face that the grantors are nonresident aliens, not entitled to inherit, will not affect the right of the grantee to take possession of the land and hold adversely, claiming the benefit of the statute of limitations, where the claim of right is in good faith; nor will the mere fact that a grantee knows of a defect in his title, defeat the operation of the statute.</p> <p>2 Same: color of title: good faith. Where a grantee puts his deed upon record and enters into possession, his possession is presumptively referable to his deed; and in so far as good faith is essential to his claim of right, it will be presumed in his favor.</p> <p>3 Same: tenants in common: hostility of claim. A brother and sister of an intestate,' the only collateral heirs, can not be tenants in common with a child of the intestate, who was entitled to inherit the entire estate; and a deed given by such collateral heirs is an assertion of right hostile to the child.</p>

<p>1 Master and servant: cause of injury: burden of proof: evidence. Where an employee shows a reasonable cause of injury, indicating it to be the proximate result of the master’s negligence, it is then for the master to show some other cause equally consistent with the facts shown to defeat recovery. In this action the evidence is. held to justify a finding that the injury to plaintiff was caused by the loose condition of the wheels of a truck which he was using, causing it to tip over when loaded.</p> <p>2 Same: injury to servant: assumption of risk: instructions. Where a workman was injured by the-use of a truck on a rough and uneven floor, the truck having a defective axle and wheels, causing it to tip over thus casting the load upon the plaintiff, but the condition of the floor was so apparent to plaintiff that any danger to him resulting from that cause must have been known, instructions authorizing recovery either upon proof of the defective condition of the truck or of the unevenness of the floor were erroneous.</p> <p>3 Same: defective tools: selection by servant: duty to repair. The rule that the master is not liable for injury to an employee resulting from the use of an unsuitable tool, where he has selected the same from a number of adequate and suitable tools furnished by the master, has no application where all of the tools provided are unsuitable. And the rule that a servant is bound to see that simple tools provided by the master are kept in repair, does not apply to a truck used by the servant in moving heavy objects from one place to another; especially where there was another employee whose duty it was to keep machinery about the premises in repair.</p>

<p>Cancellation of instruments: mental incapacity: evidence. In this action to set aside a conveyance of real estate the evidence is held sufficient to warrant a decree cancelling the deed because of the mental incapacity of the grantor.</p>

<p>Appeal from Polh District Court. — Hon. William H. McHenry, Judge.</p> <p>The opinion states the case.</p>

<p>1 Wills: cemeteries : bequests : statutes. The statute authorizing owners of a cemetery to procure the appointment of a trustee with authority to receive and manage money donated for a permanent fund to maintain the same, has no application to public cemeteries; so that the fact that a gift to maintain a public cemetery was not made in accordance with the provisions of the statute does not affect its validity.</p> <p>2 Same: charitable uses. The maintenance of a cemetery as a place of public burial, open to all persons alike, is a charitable use; and a gift for the purpose of aiding in its maintenance is valid.</p> <p>3 Same: bequest to school fund: certainty of purpose and beneficiaries. A bequest to the permanent school fund of a couftty is not void for uncertainty because there is no such fund specially designated by the statute, or because the gift is not to a person, corporation, individual or thing capable of accepting it; since a charitable gift will not be permitted to fail because of any mistake or ambiguity in describing its beneficiaries or expressing its purpose, if from the language of the bequest when construed in the light of all the facts the intent of the donor is reasonably apparent.</p> <p>4 Same: construction of trusts: evidence: designation of trustee. Extrinsic evidence is permissible to aid in the construction of a bequest; and it is not necessary to its validity that a beneficiary be named; and although no donee or trustee is named, or one is named who is incapable of taking or holding the gift for a charitable use, a court of equity will not permit the trust to fail on that account but will supply a proper trustee.</p> <p>4 Same: bequest to permanent school fund: certainty of purpose. The statutes of this State provide a scheme of common schools and a permanent trust fund for their support commonly known and referred to as the “permanent school fund of the county;” and a bequest by one, who declares his desire to assist in advancing the interests of the public schools of his county, to the permanent school fund of such county is not void for ambiguity or uncertainty of purpose.</p> <p>6 Same: validity of bequest. It is no objection to the validity of a bequest to the permanent school fund of a county that ample provision has been made by law for the support of the public schools.</p> <p>7 Same: bequests: construction. In the construction of a bequest consideration will be given to all the relative circumstances, both intrinsic and extrinsic, which will aid in giving coherence and clearness to expressions of the testator which might otherwise be obscure.</p> <p>8 Same: designation of trustee. A county is given power by Statute to receive a bequest to its permanent school fund; but if this were not so the bequest will not be permitted to fail because of its disqualification in this respect.</p>

— Hon. R. -P. Howell, Judge. Action to recover damages for personal injuries received by plaintiff while in the employ of the defendant, alleged to have resulted from defendant’s negligence. There was a trial .to a jury, and verdict for plaintiff. Prom the judgment on such verdict, defendant appeals.

'Appeal from Hamilton District Court. — Hon. Robert M. Wright, Judge. Action to recover damages for failure of defendant to perform a written contract for the sale of certain shares of corporate stock belonging to the plaintiff. There was a verdict for the plaintiff, and from the judgment thereon defendant appeals.

— Hon. B. P. Howell, Judge. Action for damages resulted in a directed verdict for defendant and judgment thereon.. The plaintiff appeals.

<p>Judgments: conclusiveness: principal and agent. There are cases in which an agent may plead an adjudication in favor of his principal as a bar to an action against him; but where, as in this case, the defendant bank was the special agent of another bank simply to forward by express a certain sum of currency, and an employed of defendant delivered a package to the express company supposed to contain the currency but upon delivery to the consignee it in fact contained nothing, a judgment against the express company and in favor of the consignee for the amount is not a bar to an action by the express company against the consignor for the deceit of its employee in delivering and obtaining a receipt for the deceptive package as money; as there was no such privity between the consignor and consignee as will support the plea of adjudication. And a finding in a suit between the consignee and express company contrary to that in the suit between the express company and the consignor, that the currency was not in fact delivered to the express company, would not be of controlling importance.</p>

— Hon. A. P. Barker, Judge. Suit to recover for lumber 'furnished and to establish a mechanic’s lien resulted in the dismissal of the petition. Plaintiff appeals.

— Hon. D. V. Jackson, J udge. On November 18, 1908, the plaintiff filed a petition alleging defendant to be a person of unsound mind and incapable of managing his affairs, and prayed for the appointment of a guardian. A niece of defendant, averring herself his only full blood relative in this country, by way of petition of intervention, joined in the prayer. The defendant denied the allegations, and averred the proceedings to be a scheme to acquire possession of his property.

— Hon. W. D. Evans, Judge. This is a suit in equity to set aside a certain deed and lease purporting to have been executed in March, 1905. -There was a decree granting the ¡relief prayed, and the defendants appeal.

— IIon. J. E. Clyde, Judge. Action on an account for attorney’s fees. The defendant denied that the service for which plaintiffs’ charges were made were rendered to or in behalf of defendant, and by way of counterclaim alleged that moneys received by plaintiffs and credited on their said account to defendant were unlawfully paid to plaintiffs and received by them, and asked judgment against plaintiffs therefor.

— Eon. Jesse, A. Miller, J udge. Plaintiff glleges in her petition, which is in four counts, that at defendant’s request she cared for and kept the mother of plaintiff and defendant for the period of about five years, and she seeks to recover on that account either on the basis of a contract price of $7 per month or on the basis of a quantum meruit at the rate of $15 per month, and she asks judgment against defendant either for the whole amount or for defendant’s…

— IIon. Jesse A. Miller, Judge. This is an action for personal injuries resulting from a fall of slate in a coal mine. There was a directed verdict for the defendant, and the plaintiff appeals.

ro Gordo District Court. — Hon. J. P. Clyde, Judge. . Action to recover damages for an alleged trespass by defendants upon plaintiff’s land .due to the construction of an open ditch through and over the same without authority from plaintiff. Defendant's denied the trespass,' and pleaded authority to construct- the ditch from plaintiff’s husband, who it is claimed, was her agent with power to consent thereto and to contract therefor.

— Hon. James A. Howe, Judge. Action at law to recover damages for error in the transmission of a message sent by plaintiff to his brokers, Logan & Bryan, in. the city of Chicago. The defendant denied generally, hut admitted that a written notice and claim for damages was given it within sixty days hy Logan & Bryan. On the issues joined the case was tried to a jury, resulting in a directed verdict for defendant, and plaintiff appeals.

<p>Appeal from Davis District Court. — Hon. D. M. Anderson, Judge.</p> <p>Action in equity to enjoin the use by defendant of an alleged way over plaintiff’s land. The court found the defendant entitled to a way by necessity, but enjoined him from leaving open the gates and bars where said way enters and leaves the plaintiff’s premises. The costs were apportioned between the parties. Both parties have appealed, but, the plaintiff’s appeal being first perfected, he only will be designated in the record as appellant.—</p>

<p>1 Constitutional law: board of medical examiners: statutes. The statutes relating to the creation and appointment of a board of medical examiners and conferring upon the board power and discretion are not unconstitutional because of the possibility that its power may be improperly exercised; nor are they unconstitutional because discriminating against any class of citizens; and the court will not presume that the board will exceed its power or act unlawfully for the purpose of holding the statute unconstitutional.</p> <p>2 Same: illegal practice of medicine: indictment. An indictment charging the violation of a statute substantially in the language of the statute is sufficient.</p> <p>3 Evidence: objections: instructions. A party claiming to have been deprived of some substantial right because of the admission of testimony subsequently stricken, should have made that fact known at the time the evidence was stricken; and failing to do so is in no position to complain of an instruction rightfully given directing the jury not to consider the same.</p> <p>4 Criminal law: instructions: refusal. Where the court charged that defendant could not be convicted of the illegal practice of medicine unless every material allegation was established by the evidence beyond a reasonable doubt, a further instruction that defendant must be proven guilty beyond a reasonable doubt was not necessary.</p>

<p>Appeal from, Woodbury District Court. — Hon. F. R. Gaynor, Judge.</p> <p>The opinion states the material facts.</p>

<p>Appeal from Polk District Court.- — Hon. Jesse A. Miller, Judge.</p> <p>Action to recover for a loss under a fire insurance policy taken out by the mortgagor with a clause attached making the loss payable to plaintiff as mortgagee. There was a directed- verdict for the plaintiff, and, from judgment on such' verdict, defendant appeals.</p>

<p>Appeal from Harrison District Court. — Hon. N. W. Macy, Judge.</p> <p>A claim in probate in favor of plaintiff against the estate of Elias W. Pegg, deceased, for $10,500 as compensation for services rendered by plaintiff to defendant in his lifetime, was disallowed by the trial court, and the plaintiff appeals.</p>

— Hon. James A. Howe, Judge. The petition as amended alleged ■ the organization of the Rocky Mountain Smelting Company prior to May 11, 1900, at which time defendant and others were directors thereof, for the purpose of constructing and operating a smelting 'and refining plant at Florence, Colo.; that in 1903, through- foreclosure proceedings, the company’s plant was sold to Anna Kendall; that defendant, with others, organized the Iowa Fiduciary Company, which acquired the…

* — Hon. C. P. Smith and C. II. Kelly, Judges. On rehearing. Suit in equity to recover rent alleged to be due under a written lease. There was a judgment for the plaintiff against the defendant W. A. Hofmaster, and he appeals.

— Hon. K. M. Wright, Judge. ■ From the action of the board of supervisors of Hardin County purporting to locate and establish Drainage District No. 3, various landowners interested took separate appeals to the district court, where these appeals were consolidated, and the court entered a decree confirming the action of the board of supervisors. From this decree those who were appellants in the district court prosecute their appeal to this court.

<p>1Pleadings: substitution of lost pleadings: effect: waiver of objection. Although jurisdiction of the subject matter of a suit can not be conferred by consent where it would not otherwise exist, yet, where complete jurisdiction has once 'been acquired the cause may be tried in any manner that the court and parties may agree upon; and where the pleadings were lost prior to a second trial of the action, it was competent for the parties to stipulate that the same were properly abstracted on appeal from the first judgment, and that the cause should proceed as if the original pleadings were physically before the court. And where such an agreement • was made, as in this case, and the parties proceeded to a third trial because of a disagreement on the second trial of the action without further reference to the fact that the original pleadings were not before the court, they waived the objection and consented to the trial without the physical presence of the original pleadings; since the agreement was in effect a substitution of the pleadings for a future trial and until a verdict could be reached.</p> <p>2 Negligence: conflicting evidence: appeal: law of the case. Where the evidence of negligence on the part of operators of a street car respiting in injury to a passenger attempting to board the same is in substantial conflict, as in this case, the question becomes one for the jury; and where it was determined on appeal that the evidence was sufficient to show negligence, the decision became the law of the case on that question on a subsequent appeal.</p> <p>3 Street cars: negligent operation : duty of conductor. Where the conductor of’ a street car has knowledge of the fact that the car was stopped to permit a passenger to enter, and while the passenger was attempting to enter through the partially opened gates the car was suddenly started, it became the duty of the conductor to signal the car to stop and to assist the passenger in opening the gates that he might enter without danger, failure to do which was negligence.</p> <p>4 Instructions: duty, of court. It is the duty of the court to intelligently instruct the jury as to the precise issue to be determined, and where the instructions as a whole fairly do this the fact that they were not more specific is not reversible error.</p> <p>5 Same: refusal of instruction. Where an instruction as given is sufficient and clearly embodies the thought embraced in a requested instruction on the’ subject, refusal of the request is not erroneous.</p> <p>6 Same. Where there was evidence that it was quite usual for the gates of the car in question, and other cars, to only partially open for the admission of passengers, as was the case in this action, a requested instruction that if the gates were not opened as they usually were for the admission of passengers, but remained partially closed, such opening would not be an invitation to board the car but a plain suggestion of an unusual condition was properly refused.</p> <p>7 Personal injury: excessive damages. In this action the plaintiff in attempting to board defendant’s street car received an injury resulting in the loss of a foot. He was twenty-eight years old, and earning fifteen dollars a week at his trade. The injury did not totally disable him and a recovery of $12,500 is held excessive, and is reduced to $6,000.</p>

— Hon. W. H. McHenry, J udge. Action at law to recover damages for personal injuries to plaintiff’s intestate. At the close of the testimony, the court directed a verdict for the defendant, and, from the judgment entered thereon, plaintiff appeals.—

— Hon. Hugh Brennan, Judge. This is an appeal by defendant from an order of the trial court overruling its demurrer to plaintiff’s petition.—

— Hon. B. W. Preston, Judge. F. Emma Skillman died testate and childless July 27, 1907, but left surviving her a husband, E. H. Skillman By the’terms of the will, she directed the payment of all just debts, and left one-third of two lots and all other property save her household goods to her husband, two-thirds of the lots and said household goods to her sister Mary E. Springer, and the residue of the estate to said Mary E. Springer and another sister, Eva L. Wilson.

<p>Appeal from Winneshiek District Court. — How. A. N. Hobson, Judge.</p> <p>The defendant, being indicted and convicted upon a charge of adultery, appeals.</p>

<p>1 Criminal law: false pretense: evidence. In this prosecution for cheating by false pretense the evidence is held to show that defendant made the representation charged in the indictment.</p> <p>2 Instruction: delivery of property. On A prosecution for false pretense in which there was no question as to the delivery of the property claimed to have been fraudulently obtained by defendant, he can not complain of an instruction authorizing conviction, which makes no' reference to the question of delivery of the property.</p> <p>3 Same: intent. Although an instruction charging that if the representations were false and made for the purpose of obtaining property, when standing alone, would be insufficient and incomplete, because not directing that an intent to cheat was essential, still, if, when taken in connection with the other instructions, this element of the crime is fully covered, it will not be held misleading and erroneous.</p>

— Hon. W. P. . Peeguson, Judge. Action to recover commission for procuring a purchaser at defendant’s request for certain property consisting of real estate and a stock of merchandise. On the issue raised by the answer, in substance denying the allegations of plaintiff’s petition, there was a verdict for the plaintiff, and from the judgment on this verdict defendant appeals.

— Hon. Jesse A. Miller, 1 Judge. Action at law to recover damages due to the backing up of surface water in such a manner as to injure plaintiff’s premises.

<p>Mortgages: foreclosure: fraud in execution: evidence. In this action to foreclose a mortgage covering the homestead, securing both a loan of money and a prior judgment', the evidence is held to support a finding that the mortgagor, an aged lady, very deaf and nearly blind, had been imposed upon in the execution of the mortgage and that she never intended it to secure the judgment, and foreclosure was therefore properly denied.</p>

<p>1 Practice: continuance of cause: illness of counsel. The unexpected illness of the only attorney in a case and consequent inability to attend the trial, with a showing of probable recovery prior to a succeeding term, will authorize a continuance of the case, especially where the client was not in a position to employ other counsel- and prepare for trial at that term.</p> <p>2 Pleadings: verification: defective jurat. Although a jurat in the verification of a pleading fails to disclose the county wherein the oath was administered the pleading should not be stricken; as the oath will be presumed to have been administered in the. proper county.</p> <p>3 Same: verification by attorney: knowledge of facts. The verification of a pleading by an attorney should show his knowledge of the facts alleged; and- where a verification stated that the attorney was familiar with all the statements of the pleading and with the facts of the case as claimed by his client, his competency to make the same sufficiently appeared, the word “familiar” as used being the equivalent of having a knowledge of the facts.</p>

<p>Appeal from Clay District Gourt. — Hon. D. F. Coyle, Judge.</p> <p>Action to recover damages for breach of convenant of seisin.of real property. A demurrer to plaintiff’s petition was' sustained, and, plaintiff electing to stand upon his petition, judgment was rendered for defendant, from whicl^ plaintiff appeals.</p>

<p>1 Railroads: right to crossings: public use. Where it is made to appear that the construction of a railroad will furnish the public additional conveniences for travel and for transportation of freight, for which it is sought to establish a crossing over an existing road, there is a sufficient showing of public use to support the right to a crossing, although the road may be used chiefly for transporting freight for a manufacturing company; and upon a showing that the use is public the extent of such use is not material.</p> <p>2 Same: necessity for crossing: character of same: statute. The statute confers upon one railroad company the right to a crossing of its line over another established road when necessary in the construction of the new road, and the only limitation on such right is that the crossing shall be so made as not to unnecessarily interfere with the use of the senior road; and the character of the crossing is dependent largely upon the facts of each case. In the instant case it is held that defendant is entitled to a crossing over plaintiff’s road, and under the circumstances as shown a grade crossing protected by an interlocking switch system will not unnecessarily interfere with plaintiff’s rights.</p>

<p>'Appeal from Montgomery Disti'ict Court. — Hon. A. B. Thornell, Judge.</p> <p>The opinion states the case.</p>

-- — Hon. F. B. G-ayner, Judge. Action to quiet title to certain real estate in' Sioux City. To the petition J. D. McKnight and his wife, Mina McKnight, filed an answer, alleging that said McKnight 'is the equitable owner of an undivided one-half of said land and also of lots nineteen, twenty, and twenty-one in block twenty, Morningside addition, and praying for decree quieting title thereto and for judgment of $1,916.33.

<p>Appeal from Lee District Courts — Hon. Henry Bank, Jr., Judge.</p> <p>This is an action in equity to establish plaintiff’s right to an alleged easement over the real estate of the defendant. There was a decree for the plaintiff, and the defendant appeals.</p>

<p>Appeal from Ida District Court. — Hon. Z. A. Church, Judge.</p> <p>Action to recover, the cost or value of a party wall. Defendant- pleaded that it had the right to use the wall under a contract with the city, whereby it was given the privilege of so doing without expense. The case was tried to a jury, resulting in a verdict and judgment for defendant, and plaintiff appeals.</p>

Appeal. from Shenandoah Superior Gowrt. — IIon. • W. P. Ferguson, Judge. This is an action on account for goods sold and delivered. There was a verdict and judgment for the plaintiff, and defendant appeals.

— Hon. A. D. Bailie, Judge. Suit to recover for work on a ditch. A demurrer to the petition was overruled, and, the defendant electing to stand on his demurrer, a judgment was rendered for the plaintiff. The defendant appeals.

<p>Certiorari to Fayette District Court. — Hon. A. N. Hob-son, Judge.</p> <p>This is an original proceeding on a writ of certiorari to the district court of Fayette County for the review of an order of said court finding the plaintiff to have been guilty of contempt in violating an injunction restraining him from making illegal sales of intoxicating liquors within the Thirteenth judicial district.</p>

<p>1 County depositories: liability of sureties. A bond given by a bank, with special reference to a resolution of the county board authorizing a deposit with the bank of public funds, conditioned upon the repayment of all such funds, “now or hereafter placed in the bank or under its care or control by said treasurer,” covers all deposits made by the county treasurer in the said bank prior to the time he was authorized by the board to make deposits; and the same may be recovered in an action on the bond against the sureties having knowledge of such deposits at the time.</p> <p>2 Same: unsecured deposits: withdrawals: application of payment. Even if the bond did not secure, deposits made by the treasurer before he was authorized to make them, still subsequent repayments on withdrawals by the treasurer will be applied by the court, in the absence of an application by the parties, to the prior unsecured deposits; for, although unauthorized they are not to be considered as personal deposits of the treasurer. And this is true whether the account with the treasurer is treated as continuous or as representing distinct debts due from the bank.</p> <p>3 Same: collection of taxes by depository bank: deposits. Where the depository bank, as in this case, received money from its customers for the purpose of paying taxes and ordered the county treasurer > to forward their tax receipts, the bank crediting the treasurer’s account with the amount of such taxes and the treasurer charging the bank with the amount of the receipts forwarded, the transactions amounted to deposits by the treasurer with the bank, within the meaning of the bond, for which the sureties were liable, upon insolvency of the bank.</p> <p>4 Same: accounts of treasurer as evidence of deposits. A county treasurer is required by law and under the sanctity of an official oath to keep a true record and account of the business of his office; and his books of account so kept are admissible in evidence as prima facie proof of the truth of their recitals, including his account' with depository banks; and are competent for the purpose of showing deposits in such banks.</p> <p>5 Pleadings: amendment: limitation of time for filing. The court has power, upon the giving of reasonable time and notice, to require the filing of amendments to pleadings within a specified time; apd the striking out of an amendment subsequently filed, setting up matters of which the party must have known from-the institution of the action, is not reversible error.</p> <p>6 County depositories: execution of bond: sufficiency: liability of sureties. Where the sureties on the bond of a depository bank united' in its execution, the name' of the bank being subscribed thereto as principal by one of such sureties, and the county having designated the bank a depository on the strength of the bond and having intrusted it with the custody of its funds, such sureties can not question the binding force of the bond any more than they could deny the liability of the bank for the fund, even if the bank’s signature was not attested by its corporate seal.</p>

'Appeal from Polk District Court. — Hon. James A. Howe, Judge. Petition at law to recover damages for breach of defendant’s contract to furnish plaintiff employment. The facts are stated .in the opinion. Demurrer to petition sustained, and plaintiff appeals.

— Hon. L. E. „ Fellows, Judge. Action of mandamus to compel the defendants as members of the board of directors of a school township to select sites and build schoolhouses pursuant to a vote of the electors of said school township. Defendants interposed various defenses, some of which will be noticed in the body of the opinion. The case on the issues joined was tried to the court, resulting in a judgment dismissing the petition, and plaintiffs appeal.

Certiorari from Carroll District Court — Hon. F. M. Powers, Judge. This is a certiorari proceeding in the nature of an appeal from an order of the defendant as district judge, wherein the petitioners were adjudged guilty of contempt of court for the violation of a liquor injunction.

— Hon. Hugh Brennan, Judge. Action in equity for the specific peformance of a contract, by which it is alleged defendant undertook to purchase certain coal mining property. Decree for plaintiffs, and defendant appeals.

— IIon. F. M. Powers, Judge. Suit to recover damages for personal injuries. The. defendant appeals from a judgment for the plaintiff.

— Hon. C. W. Vermillion, Judge. Action for damages for mental pain and suffering for failure to deliver to plaintiff as .sendee a death message. There was a verdict for plaintiff, and judgment thereon. Defendant appeals.