Volume 148 — Iowa Reports

— Hon. James A. Howe, Judge. Action 'at law to recover damages growing out of the conduct of the defendant in the matter of condemning plaintiff’s property for the purposes of a public park. Defendant demurred to plaintiff’s petition as amended, and its demurrer was sustained. Plaintiffs appeal.

— IIon. John E. Oliver, Judge. Action to recover .‘the amount alleged to be due from defendants, Charles Escher, Jr., H. R. Ryan, and E. G. Ryan, engaged in business as a partnership under the name of the Pure Bred Cattle Commission Company, for cattle of plaintiff’s sold by defendants as commission merchants. The defendants alleged settlement consisting of the acceptance by plaintiff of the individual note of H. R. Ryan for the amount of plaintiff’s claim.

— Hon. E. P. Howell, Judge. Action for damages resulting to plaintiff’s property because of change of the established grade of the city. Trial to a jury. Verdict and judgment for defendant. Plaintiff appeals.

— Hon. Charxes E. Pansier, Judge. Action in equity to set aside certain conveyances of ■ real estate. There was a decree granting partial relief. Defendants appeal.

— Hon. Z. A. Church, Judge. Action for the partition .of certain lands at one time owned by John H. Merritt. The trial court granted the prayer of the petition, and some of the defendants appeal.

<p>Appeal from Polls District Court. — How. Hugh Brennan, Judge.</p> <p>Action for personal injuries. Verdict and judgment for tbe plaintiff. Defendant appeals.</p>

<p>1 Constitutional law: hotels: arbitrary classification: statute. The act of the 33d General Assembly providing for the inspection of hotels and declaring that every structure kept, used, advertised, or held out to the public to be an inn, hotel or public sleeping house, or place where sleeping accommodations are furnished for hire to transient guests, in which ten or more sleeping rooms are used for the accommodation of guests, shall he deemed a hotel within the meaning of the act, is not unconstitutional because making an arbitrary and unreasonable classification of hotels, in that it is confined in its application to hotels having a certain number of rooms, or that it refers simply to hotels which receive transient guests.</p> <p>2 Same: delegation of legislative power. Nor is the statute unconstitutional because delegating legislative power to a hotel inspector, provided for therein, in that it authorizes him to arbitrarily determine whether a hotel is of approved fire proof construction or maintained in approved sanitary condition; since the act does not confer upon him arbitrary power in these respects but simply requires him to determine in given cases whether hotels are in fact of such construction. And the same is true concerning his authority over sanitary matters and other like features of the act.</p> <p>3 Same: hotels : sanitary regulation : enforcement. Nor does the provision that all hotels shall be kept and maintained in a clean and sanitary condition, free from gas or offensive odors arising from designated sources, or from any other source, within the control of the owner or person in charge, operate to confer on the inspector arbitrary power to declare a nuisance because of offensive odors.</p> <p>4 Same: due process of law: search. The legislature in the exercise of its police power may provide for the inspection of hotels in the interest of public safety and health; and this right of inspection is a mere incident of such power, an exercise of which violates no constitutional guaranty against the right of entry upon private property and search without due process of law.</p> <p>"5 Same: imprisonment for debt. The provision of the statute in question which makes a failure to pay the inspector’s charge a misdemeanor and punishable by fine and imprisonment is invalid, because in violation of the constitutional provision which prohibits imprisonment for debt. But as that provision is not essential to the remainder of the act it may be eliminated leaving the act in all other respects valid.</p>

<p>Appeal from Keohulc District Court. — Hon. K. E. Willcockson, Judge.</p> <p>The opinion states the case.</p>

<p>Collateral' inheritance tax: charitable bequests : exemption : appointment of trustee. (A bequest to a religious or charitable society incorporated under the laws of a foreign state, with power to expend the bequest wherever the society may see fit, is not exempt from the collateral inheritance tax: But when made to a local branch of such a society, as the Salvation Army, and to be expended .within this state, the exemption applies, although the society may be incorporated elsewhere.</p> <p>And the trust will not be allowed to fail though the trustee named has no legal existence; as the court in such cases may appoint a trustee.</p>

— Hon. Hugh Brennan, Judge. Action to recover ou a policy of life insurauce. The issue raised by the defendant was as to tbe ownership of the policy at the time of the death of the insured. There was a verdict for the plaintiff, and from judgment thereon the defendant appeals.

— Hon. A. J. House, Judge. Action for damages resulted in a verdict for the defendant. A motion for new trial based on eleven grounds was filed and overruled, as to ten of these and sustained as to one. Both parties appeal; that of defendant being last perfected. Reversed on defendant’s appeal.

<p>1 Master and servant: injury to servant : warning. Where a workman is subject to distinct perils a warning as to one peril may not, as a matter of law, be sufficient warning as to the other. As in this case where plaintiff, operating a ripsaw, was warned of a liability that the timber he was sawing might kick back such warning was not sufficient to cover peril arising from its being thrown forward, thus bringing his hand in contact with the saw.</p> <p>2 Same: assumption of risk: pleading. In this action the defendant denied the allegations of the petition and pleaded the assumption of the risks by plaintiff in his employment, one of which was the doing of acts alleged in the petition; and it is held that such allegations of assumption of risk added nothing to defendant’s preceding general denial, and did not allege plaintiff’s assumption of risk created or enhanced by defendant’s failure to exercise reasonable care.</p> <p>3 Same: failure to provide safety appliances: negligence. Where it appeared that the saw which plaintiff was operating was not equipped with a divider in common use, which would have prevented the accident, the failure to provide the same was a violation of the statute requiring dangerous machinery to be equipped with safety appliances, and was negligence per se.</p> <p>4 Same: safety appliance: evidence. Under the evidence in this case the question of whether a certain safety appliance could have been applied to the machinery with which plaintiff was working was for the jury.</p> <p>5 Same: contributory negligence: evidence. Under the evidence as to the manner in which plaintiff operated the saw with which he was at work the question of his negligent operation of the same was for the jury.</p>

— Hon. Hugh Brennan, Judge. Action for personal injuries. At tbe close of plaintiff’s evidence tbe court directed a verdict for tbe defendant, and entered judgment against tbe plaintiff for costs. Plaintiff appeals.

<p>1 Homesteads: conveyance by' insolvent owner : rights of creditors. The homestead is not subject to the payment of debts of the owner, and he may dispose of it as he sees fit even though insolvent and done in contemplation of suicide; so that a conveyance of the homestead by the owner to his wife to enable her to secure her distributive share of his estate from other lands of •which he might die seised, is not a matter of which his creditors can complain.</p> <p>2 Same: delivery of deed. The execution of a deed by the owner conveying the homestead to his wife, done in contemplation of suicide and delivered to a third person with instructions to deliver the same to his wife, will, upon delivery after his death according to instruction, constitute a sufficient delivery of the instrument.</p> <p>3 Homestead rights of widow: election : inconsistent defenses. In this action brought in the interest of the creditors of an insolvent estate, the widow did not originally make any claim to ■the homestead, but contended that she was not bound to take her distributive share so as to include the dwelling house used as a homestead, but subsequently claimed the homestead under a deed from her husband, of which she had no knowledge at the time of her original pleading.</p> <p>Held, that she was entitled to resist the claim of the creditors by pleading title to the homestead under the deed, and also to insist upon her right to take a distributive share in the estate 'not including the homestead, under the statute authorizing inconsistent defenses.</p> <p>4 Same: conveyance of homestead: validity. The fact that a deed conveying the homestead also includes other property, a conveyance of which is in fraud of creditors, will not affect the validity of the instrument as a conveyance of the homestead.</p> <p>5 Same: distributive share of widow: what included: statutes. Under the present statutes the share of the widow of an insolvent must be so set off to her that it will include the dwelling house given by law to the homestead.</p>

This is a certiorari proceeding, in the nature of an appeal, by which we are asked to review the orders of the trial court in a contempt proceeding against a saloon keeper for violating an injunction.

— Hon. Z. A. Church, Judge. The ward, Frank B. Nelson, having been adjudged of unsound mind, M. E. Jones wás duly appointed his guardian under date of January 29, 1906. On November 27, 1907, the ward appeared by counsel and filed an application for the removal of the guardian on the ground that he had failed and refused to make any report to the court of his dealings in the matter of said trust as provided by law.

<p>1 Taxation: moneys and credits : where assessabie. The place where a person lives, within the meaning of the statute relating to the taxation of moneys and credits, is the place of his residence.</p> <p>2 Same: residence: burden of proof. Where it is shown that the residence and domicile of a party has until recently been in this state, it is incumbent upon him to show that he has acquired a new residence or domicile elsewhere, to avoid the payment of taxes in Iowa.</p> <p>3 Same. Mere intention to change one’s place of residence is not sufficient to avoid taxation; it must be accompanied by actual residence in a new location.</p>

— Hon. Z. A. Church, Judge. This is a proceeding had on the petition of Ella Hamilton, as executrix of the estate of her deceased husband, asking the modification of her final report, on which she was discharged, showing that she had on hand at the date of such discharge $161.08 of the money of the estate; whereas, in truth the estate was indebted to her for disbursements.

— Hon. J. H. Addle-gate, Judge. ■Suit in equity to enjoin the collection of taxes assessed and levied for the year 1901 against the unsold portions of a cemetery near the city of Stuart in Guthrie county. The trial court denied the relief asked, and plaintiff appeals.

— Hon. Edmund Nichols, Judge. Suit to recover .damages for personal injuries. Verdict and judgment for plaintiff, from which the ’ defendant appeals.

Certiorari proceedings instituted in this court to review the legality of the conviction of the defendant of contempt of court. The facts are stated in the opinion.

<p>1 Trial: continuance: absent witness. Where the adverse party admits that an absent witness if present would testify to the matter stated in the affidavit for continuance, a continuance of the cause on the ground of absence of such witness should be denied.</p> <p>2 Same: absence of attorney: discretion. Where the record of an application for continuance of a cause on the. ground of absence of the party’s regular and principal attorney in the case did not show that the attorney present was unprepared or unable to properly try the case, and it appeared that the attorney present had previously appeared-in a suit on the same claim and had investigated the cause of action, refusal to grant the continuance was not an abuse of discretion.</p> <p>3 Beneficial insurance: action upon certificate: money judgment. In a suit upon a beneficiary contract of insurance providing that the beneficiary shall receive an amount equal to the proceeds of one assessment, not however exceeding a stated sum, the beneficiary is entitled to a money judgment for such sum unless the association shows that an assessment will not yield that sum.</p> <p>4 Same: deductions from face of certificate: burden of proof. Where a beneficial certificate of insurance provides that in the event of death the certificate shall be charged with the amount such member would pay during the expectancy of life as shown by the mortuary tables, and at the same rate of assessment as previously paid, the beneficiary is entitled primarily to the face of the certificate subject to any charges that might be made against it; and it is incumbent upop the association to plead and prove the amount of such charges.</p> <p>5 Same: change in by-laws: effect. The rights of a beneficiary under a certificate of insurance can not be affected by a change in the by-laws made after his rights had accrued.</p>

— Hon. Jesse A. Miller, J udge. The defendant appeals from a conviction under an indictment charging him with uttering as true a forged instrument.

<p>1 Criminal law: burglary: breaking and entering: evidence. The crime of burglary may be committed although the purpose of breaking and entering was not accomplished. In this action the evidence is held to justify a finding that the purpose and intent of defendant in entering the building was burglary.</p> <p>It is also held sufficient to sustain a finding that defendant broke and entered the building.</p> <p>2 Same: misconduct in argument. In view of- the evidence relating to the identity of defendant, and the evident purpose of counsel in referring to the same to impress upon the minds of the jury the fact that from the situation of the complaining witness she would be likely to be able to identify the defendant, the argument of counsel is held to have been without prejudice.</p>

<p>1 Criminal law: competency of witness: discretion. The competency of a child as a witness is a matter largely within the discretion of the trial court, and unless abuse is shown its determination of the question will not be disturbed on appeal.</p> <p>2 Same: evidence of moral character. Under the statute the general moral character of a witness may be shown as bearing upon his credibility; and while the term “character” as used in the statute is equivalent to the term “general reputation;” still it is the general moral character of the witness which may be inquired into and not his general reputation unconnected with the question of moral character.</p>

<p>1 Pleadings: failure to answer interrogatories : judgment. A plaintiff is not entitled to judgment upon a failure to answer interrogatories . attached to the petition, where, although tjie answers might tend to sustain plaintiff’s claim, they would not necessarily prove the amount which he was entitled to recover.</p> <p>2 Same: interrogatories : sufficiency of affidavit. Under the statute providing that a party may file interrogatories with his pleading, the affidavit to the effect that he believes the subject inquired about is within the personal knowledge of the party interrogated, which does not aver that affiant has a personal knowledge of the matter sworn to, when made by an attorney, is insufficient.</p> <p>3 Same: extension of time to answer interrogatories: discretion. While it is incumbent upon a party to answer interrogatories attached to a pleading within the time required to answer the pleading itself, the time may be extended by the court, and the order of extension will not be reversed unless it clearly appears there was an abuse of discretion.</p>

— Hon. Wit. Hutchinson, Judge. Action originally brought to foreclose a mortgage. Judgment was finally entered quieting title in plaintiff to the premises covered by the mortgage as against a claim of defendants interposed by amended answer, asking that a tax title held by plaintiff on tlie property covered by the mortgage be canceled, and denying relief to defendants under a counterclaim for damages. From this judgment, defendants appeal.

— Hon. J. E. Clyde, Judge. Action in equity to reform a contract of insurance and for judgment thereon when so reformed. Decree for the plaintiff. The defendant appeals.

<p>Appeal from Johnson District Court. — Hon. B. P. Howell, 'Judge.</p> <p>Defendant was accused of a violation of what is known as the state pure food law. Upon trial in the district court he was acquitted, and the state appeals.—</p>

<p>Appeal from Pottawattamie District Court. — Hon. E. B. Woodruff. Judge.</p> <p>Certiorari proceedings. The opinion states the case.</p>

<p>Appeal from Van Burén District Gourt. — Hon. F. W. Eichelberger, Judge.</p> <p>Action iu equity to abate a nuisance. Judgment for the defendant. Plaintiffs appeal.</p>

<p>Proceedings in. certiorari.</p>

<p>1 Street railways: operation of cars : duty of motorman. The duty of a motorman on a street car, to keep a lookout for persons within or approaching the zone of danger, is greater than that of an engineer in charge of a steam railway engine, operated upon a track where there is no reason to anticipate the presence of people.</p> <p>2 Same: negligence: last clear chance: submission of issue. Where the evidence, as in this case, showed that the motorman saw plaintiff working near the track, in a position of danger and without apparently noticing the approach of the car, in time to have stopped the car by the exercise of reasonable care and thus have avoided the accident, the defendant was liable for the injury although plaintiff may have been negligent in placing himself in a position of danger, and the case was properly submitted on that theory.</p> <p>3 Same: »last clear chance. The doctrine of the last clear chance does not involve a recognition of liability in case of concurrent negligence, nor does it involve any case of comparative negligence, but requires one to use reasonable care for the safety of another in the condition in which the latter, though negligently, may have placed himself.</p> <p>4 Excessive damages: reduction of verdict. Where the court may have found^ from the evidence that the verdict was excessive, not because of passion or prejudice, but because the jury misconceived the proper measure of damages, the court’s action in permitting a reduced verdict to stand rather than setting it aside in to to was not error.</p>

<p>Appeal from Cedar Rapids Superior Court. — Hon. James H. Kothrock, Judge.</p> <p>Action at law to recover damages for breach of a contract of salé of defendants’ rights to certain leased ground, and for breach of an agreement not to reengage in the retail lumber and coal business in the city of Cedar Rapids for the period of ten years. Defendant pleaded plaintiff’s breach of contract as a ground for a rescission thereof, and also alleged that the contract made with plaintiff was unlawful and contrary to public policy. The case was tried to a jury, resulting in a verdict for defendants, and plaintiff appeals.</p>

- — Hon. W.' N. Treichler, Judge. Action for share in commission earned by defendant in a real estate transaction resulted in judgment for plaintiff. The defendant appeals.

— Hon. Wm. Hutchinson, Judge. Action to recover damages for failure of defendant as plaintiff’s tenant to deliver to plaintiff his proper share of the crops raised on the leased premises.

<p>Appeal from Ida District Gourt. — Hon. Z. A. Church, Judge.</p> <p>In a probate proceeding for the settlement of the estate of William Back, deceased, plaintiff alleged that she was the widow of the decedent, and asked an order directing the executor to turn over and deliver to her all his exempt personal property. Issue being joined as to whether the plaintiff was the widow of decedent, the court made a specific finding that plaintiff never was the -legal wife of said decedent, and was never legally married to him, and therefore dismissed plaintiff’s application and entered judgment for the defendant for costs. From this judgment, the plaintiff appeals.</p>

<p>1 Evidence: conclusion. Not every inquiry calling for a fact -in the nature of a conclusion is incompetent. Thus' in an action for the death of a switchman the testimony of a competent 'witness that it is the duty of an engineer in moving his engine to keep a lookout ahead for cars with -which he may collide is proper.</p> <p>2 Railroads: action for death of switchman: contributory negligence: evidence. In this action for the death of a switchman while riding the footboard of the engine which was pushing a car, the question of whether decedent was negligent in not being on the car ahead of the engine and keeping a lookout instead of on the footboard of the engine was, under the evidence, for the jury.</p> <p>3 Same: submission of issues. Where, as in this action for the death of a switchman, it was not shown to be the duty of the yard master to direct the switching crew which track to take in transferring the car, but simply to tell them where to place the car and for them to determine the route, the issues of negligence based upon the omission of the yardmaster to give such instruction and the engineer’s act in transferring the car without such direction should not have been submitted to the jury.</p> <p>4 Same: negligence. While it was the duty of the switching crew to know upon which track they were moving the engine and car in question they were not necessarily negligent in using the track selected unless it was unsafe.</p> <p>5-Same: negligence: evidence. In this action the question of whether the switching crew were negligent in failing to observe that they were upon a switch rather than the main track is held under the evidence to have been for the jury.</p> <p>6 Same: contributory negligence: instruction. An employee may ordinarily rely upon a discharge of their duty by other employees; and in this action the instruction of the court when construed with reference to the evidence is held unobjectionable, as relieving decedent from the performance of his duty and entitling him to rely wholly upon a performance of the duties of his coemployees to keep a lookout for his safety.</p> <p>7 Same. Where there was evidence, as in this case, that decedent’s proper place was on the footboard of the engine, an instruction that he was bound to use ordinary care to place himself in a position where he might properly perform his work, which included a lookout for obstructions and signaling the engineer, he was negligent if he failed to do so, was proper in view of the evidence.</p> <p>8 Evidence: credibility of witness: instruction. Although a common test of the credibility of evidence is whether the same can be reconciled with the testimony of other witnesses, still, the court should not by instruction require the jury to reconcile the other evidence with impeached testimony in order to sustain it, if in doing so it is necessary to construe the credible testimony contrary to what the jury believes to be true.</p> <p>9 Negligence: submission of issue. It is reversible error to submit issues of negligence which have no support in the evidence.</p>

— Hon. Franklin C. Platt, Judge. Action at law to recover damages for a personal injury. There was a directed verdict and judgment for defendant, and plaintiff appeals.

— Hon. Z. A. Ci-iuroh, Judge. This is au action brought by the plaintiff to quiet title to certain real estate. The defendant filed an answer and crossbill setting up title in himself. There was a decree for the plaintiff, and defendant Frank Binnall appeals.

<p>1 Criminal law: reception of verdict: absence of counsel. There is no statutory requirement that counsel for defendant 'in a criminal case shall be present in court at the time the verdict is returned; but the court may receive the verdict and discharge the jury in the absence of counsel, and no legal right of the defendant is thereby invaded.</p> <p>2 Same: argument of counsel. Where a witness for a defendant accused of seduction testified that she had been the wife of three successive husbands, one of whom she married twice and from whom she was twice divorced, and another of whom she married while still the lawful wife of a previous husband, there was no impropriety in counsel commenting, within proper limits, on the marital relations and character of the witness.</p> <p>3 Same: impeaching evidence. Where it appeared from the evidence of a witness for the accused that he was a neighbor of prosecutrix and her mother and that he had seen strangers frequenting their home prior to the alleged seduction, it was proper to show on cross-examination, as tending to impeach him, that he had signed a writing in which he stated that he knew nothing immoral of either, that they were of good moral character and conducted themselves properly.</p> <p>4 Seduction: instructions: evidence. The fact that prosecutrix testified on cross-examination that her seduction was accomplished solely by a promise of marriage did not preclude the jury from considering her testimony as a whole on that subject, which disclosed protests of love and other acts not inconsistent with a marriage engagement; and instructions permitting the jury to consider other acts than that of a false promise of marriage were justified.</p>

<p>Appeal from Pottawattamie District Court. — Hon. W. R. Green, Judge.</p> <p>In December of the year 1908, plaintiff obtained a divorce from defendant in the district court of Pottawattamie county; and in the decree was given the custody of three minor children. On the 18th day of October, 1909, defendant filed a petition for a modification of the original decree in which she asked that the said decree be canceled for fraud in its procurement; that she be granted a decree of divorce from plaintiff; and that in any event she be given the custody of the minor children, particularly the control of the daughter, Minnie. A hearing was had on this petition, resulting in a denial of the relief asked, except that defendant was given the custody of the daughter, and the original decree was modified to that extent. Plaintiff alone appeals.</p>

<p>1 Physicians: malpractice: negligence: evidence. In this action for damages against a physician for his negligence for failing to remove a piece of gauze from the plaintiff’s wound after an operation, the physician’s evidence was that his method of keeping track of the gauze used in an operation required the nurses to count the pieces used, but it did not appear that that method was followed in plaintiff’s case, or that any precaution was taken save tying a knot in one of the pieces of gauze used. Held, that evidence of the method adopted by the hospital, in which the operation was performed, for keeping track of gauze used was inadmissible.</p> <p>2 Same: impeaching evidence. It appeared in this action that defendant testified on a former trial the same as on this trial of the action that plaintiff was afflicted with a certain disease, and plaintiff on this trial testified that so far as she knew she had never had the disease or any symptoms thereof. Held, error to sustain an objection to an inquiry of plaintiff as to whether she gave any testimony on a former trial regarding the matter, as her failure to so testify on the former trial would justify an inference that she acquiesced in the statements of the defendant, and tend to impeach her evidence.</p> <p>3 Same. There was also evidence that defendant had operated upon the plaintiff previously, and he testified that in disclosing the cause of her trouble at that time he had not said that plaintiff had a specific infliction, and that he had not said at any' time that she had a particular disease. Held, that error in refusing to permit plaintiff to state whether at the time of the' prior operation the defendant had told her she had a particular disease was not prejudicial.</p> <p>4 Malpractice: custom and usage: instruction. Where there was no evidence of the custom or usage of physicians in performing an operation, refusal of an instruction that all required of physicians was that they follow the custom and usage in the performance of operations in the vicinity where they practiced, was proper. And if there had been such evidence refusal to give such an instruction in this case was especially proper, as the evidence showed a failure of the wound to heal and the continuance Of suppuration, which, together with the significance of leaving gauze in the wound required a submission of the question of negligence to the jury.</p> <p>5 Same: negligence. A physician operating upon a patient at a hospital is not responsible for the acts of nurses and internes in dressing the wound where they were not his employees, unless he was negligent in permitting them to do so.</p> <p>6 Expert evidence: instruction. Where no hypothetical questions are put to experts an instruction that the jury must find the facts on which the expert opinions are founded is not necessary.</p> <p>7 Same. An instruction that the jury must give to expert evidence only such credit as they deem it justly entitled to and must give it such weight as other evidence, taking into consideration the knowledge possessed by the witnesses testifying as experts, the matters testified to by them and the other evidence in the case, does not disparage expert testimony but cautions the jury against blindly accepting what the experts say, and is proper.</p> <p>8 Malpractice: contributory negligence: instruction. Where the court instructed the jury to consider what plaintiff did or in the exercise of ordinary care should have done, the charge.with reference to contributory negligence was not objectionable in that it failed to direct the attention of the jury to the question of whether plaintiff failed to disclose her suffering or symptoms to defendant, which might have suggested the cause thereof.</p> <p>9 Same: negligence: evidence. In this action for malpractice in failing to remove gauze from the wound of plaintiff after an operation, the evidence is held to require submission of the issue of defendant’s negligence to the jury.</p> <p>io Same: excessive verdict. In view of the serious doubt under the evidence as to whether defendant’s negligence in operating upon the plaintiff caused the necessity for another operation, and of plaintiff’s condition prior to the operation by defendant, the verdiet of $2,000 damages is reduced to $1,200.</p>

— Hon. C. B. Bradshaw, Judge. Action for damages for negligent delay in the delivery of a telegraphic' message. There was a demurrer to the petition which was sustained. On the plaintiff’s election to stand on his petition, judgment was entered dismissing the same and for costs. Plaintiff appeals.

<p>Appeal from Appanoose District Oourt. — Hon. O. W. Vermillion, Judge.</p> <p>Action for damages for personal injuries alleged to have been sustained in a collision at a highway crossing. There was a verdict and judgment for plaintiff. Defendant appeals.</p>

— Hon. W. N. Treichler, Judge. Action originally brought by plaintiff Elizabeth Mohn to quiet title to the lands in controversy. Defendants denied that plaintiff held anything more than a life estate in and to the lands, and this they alleged she had sold to defendant Philip G. Mohn, now deceased, during his lifetime.

<p>Appeal from Crawford District Court. — Hon. Z. 'A. Church, Judge.</p> <p>Action in replevin resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals. — ■</p>

— [Hon. O. D. . Wheeler, Judge. Action to recover damages for a breach of a contract for the loaning of money by defendant to plaintiff, represented in the transaction by her husband, Patrick Shields. At the close of plaintiff’s evidence the court sustained a motion for defendant to direct a verdict in his favor, and from judgment on such directed verdict, the plaintiff appeals.

— Hon. W. L. McNamara, Judge. Plaintiees brought this action on account for goods sold and delivered to the extent of $107. The account was admitted by the defendants and a counterclaim for >$8,000 was set up as alleged damages for breach of contract. There was a general verdict for the defendants, for $3,000, and judgment .was entered thereon. Plaintiffs appeal.

<p>Taxation: charitable • bequests : exemption. A devise of the use, rents and profits of certain lands in perpetuity to the dependent • poor of a specified county who are maintained wholly or in part by the county, and constituting the board of supervisors of said county trustees to receive and carry the trust into effect, is a charitable gift to the county as a charitable institution, and is exempt from the inheritance tax.</p>

<p>Appeal from Webster District Court. — Hon. Eobt. M. Wright, Judge.</p> <p>Appeal from an award of damages in a drainage proceeding.</p>

<p>Action to restrain the sale of land: denial of relief: equity. ■Where the plaintiff in an action to restrain the sale of land under a judgment against his vendor, admits by demurring to the answer that in purchasing the land he assumed to pay the judgment and retained from the purchase price a sum sufficient for that purpose, but failed to pay the judgment, though still retaining the money, he will be denied affirmative relief, under the rule that he who asks equity must be willing to do equity.</p>

<p>Appeal from Wapello District Court. — Hon. D. M. Anderson, Judge.</p> <p>. Action in equity to quiet title. There was a decree for the plaintiff. The defendants appeal.</p>

— Hon. F. R. Gaynor, Judge. Action to enforce an alleged oral agreement to execute a will or to cancel certain conveyances because procured by fraud' resulted, on hearing, in the dismissal of the petition. Plaintiff appeals.

— Hon. Byron W. Preston, Judge. Three proceedings instituted in tbe district court of Jasper County were consolidated and' tried as one in tbe lower court. One was originally an action in equity brought by plaintiff against tbe defendants to set aside deeds to quiet title to tbe land conveyed thereby, for partition, an accounting, and other equitable relief.

<p>Street railways; carriage of passengers : breach of contract : damages. Where a passenger upon a street car of his own volition left the car because it was not going to the end of the line as usual, and was thus compelled to walk some distance, his remedy for failure to carry him the full distance, if any, was for breach of contract; but where, as in this case, there was no evidence of damage he was not entitled to recover; and even though he was entitled to nominal damages failure to allow the same is not. ground for reversal.</p>

— -Hon. C. W. Vermillion, Judge, Action to recover damages to plaintiff’s land and crops by flooding occasioned by the backing np of water ■in a stream due to the insufficiency of the opening left for the stream through defendant’s railroad embankment, and also for damages caused to plaintiff by allowing a passageway for his cattle under defendant’s track to become obstructed by the deposit of sediment.

<p>1 Beneficial insurance: action upon certificate: remedy. A certificate of insurance which provides for indemnity in an amount to be realized from a single assessment not exceeding a specified sum is enforceable only in equity, but one stipulating for the payment of a stated sum without reference to an assessment is enforceable at law.</p> <p>2 Same: substituted certificate: date: forfeiture. Where a new beneficial certificate of insurance, issued as a substitute for the original certificate and bearing the date of the original certificate, stipulated that suicide of the insured within three years from the date of the certificate would invalidate the same, the date referred to has reference to the time specified in the original certificate; and the suicide of the member after the lapse of three years from the date of the original certificate did not invalidate the substituted certificate.</p> <p>3 Same: change in beneficiary. Where a member of a beneficial insurance society having the absolute right under the bylaws to change the beneficiary does all that is necessary to effect a change, an equitable assignment for the benefit of a new beneficiary is effected, even though the member dies before the issuance of the certificate making the change; and- the new beneficiary can enforce the certificate.</p> <p>4 Same: issuance of new certificate. Where a member of a beneficial insurance society surrenders his certificate for the sole purpose of making a change in the beneficiary, the society can not change the conditions of the contract without the assent of the member; and where the certificate is surrendered solely for that purpose with a request that the insurance be continued in favor of the new beneficiary under a new certificate, in other respects identical with that surrendered, a delivery of the new certificate is not essential to the validity of the contract. But if the new certificate, instead Af being responsive to the application for the change, contains new or different conditions from those of the original certificate, it will not be effective until the assured has indicated his acceptance of the new conditions.</p>

— Hon. James A. Howe, J udge. Action at law upon, 'a promissory note. Defendants plead failure of consideration and counterclaim. Verdict and judgment for plaintiffs, and defendants appeal.

— Hon. Frank Eichelberger, Judge. Plaintiff was applicant for the position of street commissioner in the city of Ottumwa in April, 1905, but Andy Hill received the appointment. Thereupon plaintiff instituted suit in mandamus praying that the office be declared vacant and the city council be compelled to appoint him thereto.

<p>1 Limitation of actions: commencement op action: attachment; An action to subject property of a nonresident to the payment of a foreign judgment is commenced, within the meaning of the statute of limitations, when the property is levied upon under a writ of attachment, and the statute then ceases to run.</p> <p>2 Judicial notice. The court will take judicial notice of all papers regularly issued, filed and returned in the case; as a writ of attachment or the return of the officer thereon, without its formal introduction in evidence.</p> <p>3 Limitations of actions: attachment: enforcement of lien. An action upon a foreign judgment against a nonresident aided by attachment, is, so far as the attachment is concerned, a proceeding in rem or quasi in rem; and the property of defendant levied upon under the attachment before the running of the statute of limitations may be subjected to the payment of the debt, even though a personal judgment can not be rendered against the defendant because the action for that purpose was not commenced in time.</p> <p>4 Same: commencement of action: personal judgment. An action against a nonresident is not commenced within the meaning of the statute of limitations by the filing of the petition or the affidavit for publication of notice, but upon completed publication of the notice; and where the publication is not complete until after the running of the statute a personal judgment can not be rendered even though the defendant personally appears after the claim is barred.</p>

- — How. James W. Bollinger, Judge. Action at law to recover damages for injuries received by plaintiff due to a fall upon him of' a heavy piece of boiler plate which was 'being handled by defendant’s employees with the use of a crane. Defendant denied liability, pleaded that the negligence, if any, was that of a fellow servant, and also assumption of risk. The case was tried to a jury, resulting in a verdict for plaintiff in the sum of $15,000.

— Hon. James A.'Howe, Judge. Action at law to recover damages for injuries received by plaintiff due to being struck by a car upon defendant’s line- of road. Defendant denied any negligence on its part and pleaded that plaintiff was guilty of contributory negligence. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

■ Certiorari proceeding in the nature of an appeal from an order of the defendant as district judge in dismissing certain contempt proceedings against one J. H. Jones.

<p>1 Appeal: Notice: sufficiency. A notice of appeal addressed to the appellee .and his attorneys, service of which is accepted in writing by the clerk of court, when filed in his office is sufficient, even though the notice is not addressed to the clerk.</p> <p>2 Street railways: injury to passenger: negligence: evidence. In this action for injury to a passenger leaving a street car, who passed around the rear of the car, stumbled and fell upon a parallel track and was struck by a car coming from the opposite direction, the evidence is reviewed and it is held that the questions of whether the car, in view of the situation, was. being operated at a dangerous rate of speed, and whether had it been operated at a reasonably safe rate of speed the injury would have been averted, were for the jury.</p> <p>3 Same: contributory negligence. The evidence is also reviewed and held to present a question for the jury as to plaintiff’s contributory negligence.</p> <p>4 Evidence: review of ruling: moot question. Where a witness affirmatively shows his incompetency to testify on a subject, a review on appeal of the ruling rejecting his evidence presents only a moot question, and the ruling of the trial court for this reason will be sustained.</p>

<p>Appeal from Lee District Court. — Hon. Henry Bank, Jr., Judge.</p> <p>Action to enjoin defendant from proceeding under sections 2028, 2029, and 2030 of the Code to establish and lay out a road over plaintiff’s land to reach a public highway. A temporary writ of injunction was granted, and defendant filed an answer and certain amendments thereto, to which plaintiffs filed a general equitable demurrer. This demurrer was sustained, and, defendant electing to stand thereon, the temporary injunction was made permanent. Defendant appeals.</p>

— How. W. H. McHenry, Judge. Tiie amended petition alleges that Emerson & Co. recovered judgment in tbe district court of Lucas county against defendant for $128.70, with, interest and costs, on March 21, 1876, and on September 24, 1907, assigned the same to the plaintiff; that shortly after the entry of said judgment defendant left the state, and has not since resided therein; that a transcript of said judgment had been filed in the office of the clerk of the district court…

— Hon F. R. Gaynor, Judge. Action to set aside tbe probate of tbe last will and testament of John G. Montagne and. to set aside tbe will because of .mental incapacity and undue influence. ' Tbe case was tried to a jury, resulting in a verdict and judgment setting aside the will because of the mental incapacity of the testator.

<p>Appeal from Clay District Court. — Hon. D. F, Coyle, Judge,</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Marshall District Oourt. — Hon. C. B. Brad- , shaw, Judge.</p> <p>Action in equity to set aside an agreement transferring certain property and funds to the defendants and for a money judgment. The petition was dismissed, and plain- . tiff appeals.</p>

<p>Appeal from Polh District Court. — Hon. Hugh Brennan, J udge.</p> <p>The opinion states the case.</p>

— Hon. Milo P. Smith, Judge. Action in replevin to recover the possession of certain instruments purporting to show an indebtedness from plaintiffs to the defendant Rose Adams and certain other instruments purporting to assign to said Rose Adams by way of security the wages to become due to the plaintiff E. E. Griswold from the Chicago, Rock Island & Pacific Railroad Company.

<p>1 Master and servant: uncovered machinery: statute: negligence: evidence. The statute requiring factory machinery to be properly covered is intended as a protection against the carelessness and ignorance of those who may incidentally come in* contact therewith, and for the benefit of operatives, who by reason of inadvertence or misfortune, might be injured thereby. The operation of a planing machine which is not properly covered as provided by the statute is negligence on the part of the employer, and in that sense must be regarded as dangerous; and it is immaterial that similar planers were in use in other factories or that the one in question was of standard make.</p> <p>2 Same: submission of issues. Where the proof is such that an issue of fact is raised concerning the proper protection provided for machinery, the jury should be informed of the provisions of the statute and instructed as to what would constitute a proper cover; and if it conclusively appears that the machinery was not properly covered the jury should be so told, and also that in permitting its operation in that condition the master was negligent. In this action for injury to plaintiff while operating a planer the evidence is held to show that the machine was not properly covered, within the meaning of the statute, and that the court erred in submitting the question of whether it was a dangerous machine.</p> <p>3 Same: assumption of risk: instructions. Ordinarily where one of mature years knows of the dangers incident to the operation of machinery it will be assumed that he appreciated the risk. And the knowledge exacted is that of the condition or defect in the machine, and the appreciation relates to the danger arising from its operation in that condition; and where the instruction of the court as given as clearly exacted proof of appreciation of the dangers as an element of assumption of risk as that requested, the requested instruction was properly refused.</p> <p>4 Same: duty to warn: evidence of custom. The necessity of warning employees of the dangers incident to the use of machinery arises out of the nature of the machinery, the dangers involved in its use, and the experience and intelligence of the employees; so that proof of the custom of others to -warn and instruct employees regarding the dangers arising from the operation of similar machinery is immaterial.</p> <p>5 Evidence: like accidents. Evidence that no other like accident had ever occurred in the operation of the machine in question was inadmissible on the question of negligence.</p> <p>6 Same: assumption of risk: contributory negligence: evidence. Under the evidence in this case the question of whether plaintiff assumed the risk or was himself negligent in the operation of the planer were for the jury.</p>

<p>!'Appeal. from Pottawattamie District Court. — Hon. W. R. Green, Judge.</p> <p>On March 2, 1904, the plaintiff began an action in replevin to recover possession of eleven head of cattle, alleging his ownership thereof, that their value was $165, and that the cause of detention according to his belief was that they had broken into a field occupied by defendant, who had taken and detained them. , The defendant on April 12th moved that plaintiff’s petition be made more specific. This motion was sustained, and on October 7, 1904, the court ordered that, unless the ruling was complied with before the following Wednesday, the action would be dismissed. The plaintiff having failed to plead farther, the court on November 10, 1904, dismissed ■ the petition because of such failure to amend and entered judgment against plaintiff and the sureties on the replevin bond for the sum of $165, being the value of the ca'ttle as alleged in the petition, and for costs. An appeal was taken to the Supreme Court, and there affirmed on motion. This action was begun some time afterwards, and in the petition the facts recited, save the áppeal, are alleged; also that plaintiff was owner of the cattle, their distraint by defendant for damages for which he demanded the sum of $15 before suit and at no time claimed to own the cattle, denied that they caused any damages, but prayed the court to determine the amount thereof, if any, and tendered whatever amount the court might determine was owing him; that the former judgment did not determine the ownership of the cattle, and tasked that such ownership be determined, that defendant be adjudged to have no interest therein save his lien, if any, for damages which plaintiff offered to pay, and that upon payment the judgment for the value of the cattle be canceled, and defendants restrained from enforcing the same. The answer interposed the former proceedings as a bar to the relief prayed, and averred that defendant held the cattle because of damages done to his property, that taking them deprived him of the power to subject them to payment of damages done, and prayed that he be permitted to go hence with his costs. The evidence adduced established plaintiff’s ownership at the time in question, that they had broken into defendant’s fields, and according to his testimony had been fed by him equivalent to one head for two hundred and fifty-five days. He estimated the value of so keeping them at twenty cents a day, or $51. Plaintiff’s evidence indicated the damages to have been much less, and the court fixed these at $30, and upon ■the payment of the same and costs of the replevin suit by decree set aside and canceled the judgment. The defendant appeals.</p>

— Hon. Z. A. Church, Judge. Action to recover for money paid on a parol contract for the purchase of land in Missouri resulted in judgment as prayed. The defendant. appeals.

<p>1 Abstracts of title: agreement to furnish same: peformance. Where abstracts of title were furnished the purchasers of property, taken possession of by them, and were under their charge for a part of the time, and nearly three years after the contract of sale the purchasers exchanged the property purchased for other property, there was an acceptance of the title furnished and a sufficient compliance with the contract to furnish abstracts.</p> <p>2 Mines and mining: contract of sale: recovery of purchase price: tender. In this action plaintiff contracted to sell defendants and others certain mining properties which he agreed to convey to a named corporation, and in consideration the second parties agreed to pay one-half of the capital stock of the corporation, partly in cash and the balance within a specified time, which each of the second parties bound themselves to pay in proportion to the stock subscribed for by them. The contract also fixed the capital stock of the corporation and provided that a portion of the same should be treasury stock and should be contributed to by the parties equally, the remaining stock to be deposited in a bank, and any portion of the shares belonging to the second parties were to be delivered to the directors of the corporation upon payment of a certain price per share, which should be applied on the amount due plaintiff so far as necessary to discharge their obligation to him. The agreement also provided that if any of the second parties failed to discharge their obligation due plaintiff the directors of the corporation should sell enough of their shares to make up the deficit. Held, that as the provision for issuance and distribution of the stock, in addition to procuring funds to operate the mines by the sale of treasury stock, was to secure the deferred payments owing plaintiff, the second parties were not entitled to 'their share of the stock deposited in the bank until their respective portion of the debt due plaintiff was paid; and that in this action against one of the second parties to recover his share of the deferred payments a tender of the stock was not necessary to enable plaintiff to recover.</p> <p>3 Same: consideration. The consideration for the obligation due plaintiff in this action was the conveyance of the property to the corporation, and not the issuance of the stock as provided in the contract.</p> <p>4 Same: abstract of title: evidence of defects. As plaintiff’s contract obligated him to deliver abstracts of title to the property to the corporation he was under no obligation to furnish them to subscribers to corporate stock who agreed to pay plaintiff certain amounts in consideration of the conveyance. And any conversation concerning defects in the abstracts furnished was not prejudicial to defendant, in this action for the amount due plaintiff from him, where the defect was subsequently remedied and the title accepted.</p> <p>5 Same: performance of contract: evidence. Where, as in this case, deeds and abstracts of title were received and retained by the corporation without objection, an agreement of the shareholders to negotiate an exchange of the property so purchased for other property was competent evidence on the question of plaintiff’s performance.</p> <p>6 Evidence of value: harmless error. Where a witness has testified that he did not know the value of property it is error to permit him to state that the same was considered worth a certain sum; but under the facts of this case the admission of such evidence is held to have been without prejudice.</p>

<p>Appeal from Story District Court. — Hon. E. M. Wright, Judge.</p> <p>Suit in equity praying an- injunction against the defendants to restrain them from constructing a drainage system across the lands of plaintiff. There was a demurrer to the petition, which was sustained. Plaintiff appeals.</p>

— Hon. C. B. Bradshaw, Judge. • Action to enforce collection of a policy or certificate of accident insurance. Judgment for plaintiff as prayed, and defendant appeals.

■ Appeal from Webster District Gourt.Sois. B. M. Wrigi-it, Judge. Action at law to recover an amount alleged to have been overpaid to defendant on purchases of beer. Judgment for plaintiff, and defendant appeals.

<p>Appeal from Mills District Court. — Iíon. N. W. Macy, • Judge.</p> <p>Suit to recover damages alleged to have been, caused by an insufficient waterway under one of appellants’ bridges. There was a verdict and judgment for the plaintiffs. The defendants appeal.</p>

<p>Appeal from Marion District Court. — Hon. J. H. Apple-gate, Judge.</p> <p>Dependant was convicted under an indictment charging him and one Van Gorkum jointly with forcible .defilement committed upon one Josephine Muilenburg, and from this conviction he appeals.</p>

— Hon. D. F. Coyle, Judge. Creditor's bill to set aside conveyance and to subject property to the lien of plaintiffs’ judgments. There was a decree granting partial relief and. denying other relief. Plaintiffs appeal. Defendants also have taken a cross-appeal.

— Hon. C. H. Kelley, Judge. Action at law to recover damages for personal injuries received by plaintiff while attempting to operate a freight elevator in a building owned and operated by defendant. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

<p>1 Mortgages: homestead: foreclosure and sale. Where the homestead and other property is included in the same mortgage, the mortgagor on foreclosure may insist on a sale of the other property before resort is had to the homestead.</p> <p>2 Same: sale of homestead. Where a senior mortgage includes a homestead and other property, and a junior mortgage covers the other property only, the junior mortgagee can not compel the senior mortgagee to resort first to a sale of the homestead for the satisfaction of his mortgage; so that a decree foreclosing the mortgages which directed that the homestead should not be sold except for a deficiency remaining after subjecting the other property to the payment of the senior mortgage was proper.</p> <p>3 Same. Under such circumstances the junior mortgagee, as between himself and the mortgagor, is a mere creditor as to the homestead, and the mortgagor can convey the homestead free from any claim under the junior mortgage, and the purchaser will hold it free from liability, except such as it was subject to in the hands of the mortgagor.</p> <p>4 Same: homestead: liabilities of purchaser. A decree foreclosing both mortgages under such circumstances and providing for the apportionment of the proceeds- between the mortgagees, which directs that the homestead shall not be sold except for a deficiency remaining upon the senior mortgage after a sale of the property other than the homestead, fixes the liability of the several tracts, and a subsequent purchaser of the homestead may rely upon such decree as fixing the obligation which he assumed in purchasing the homestead subject to the mortgages.</p>

<p>1 Fraternal insurance: action upon policy: defenses: statutes. Code, section 1812, providing that where the examining physician for an insurance company or association reports" upon an applicant that he is a good physical risk, the company is thereby es-topped from defending an action on the policy on the ground that the applicant was not in the required condition of health at the time of its issuance, unless such report was procured by the fraud or deceit of the applicant, has no relation to fraternal beneficiary societies, orders or associations.</p> <p>In the instant case the pleadings and proof show defendant to be a fraternal beneficiary society and therefore exempt from the provisions of the statute.</p> <p>2 Same: false statements : breach of warranty. Where an application for membership in a fraternal beneficiary society contains representations which are untrue, the society, under a provision of the certificate that if the application or any part of the same contains untruthful statements the certificate shall be void, may rely on any such false statements as breaches of warranty.</p> <p>3 Same: burden 'of proof. The burden of proof is upon a fraternal insurance society seeking to show the falsity of the answers of an applicant for membership.</p> <p>4 Evidence: affirmative and negative testimony. The testimony of an examining physician that he had no recollection of calling upon the applicant professionally previous to the examination, or that his attention was called to that fact at the time of the examination, was not sufficient, in view of the fact that he had made many other examinations for defendant and other fraternal orders, to overcome the specific testimony of another witness as to what was said to him and by him at the time.</p> <p>5 Fraternal insurance: misrepresentations: warranties. A beneficial society may by its contract make a misrepresentation in an application for membership a warranty in the sense that a false statement will render the contract void, although the inquiry in' response to which the statement is made is not as to a matter strictly material to the risk, and the death of the member did not result from any of the matters as to which the false statements were made.</p> <p>6 Same: interpretation of language used. In the interpretation of the language used in the questions propounded and the answers thereto of an applicant for fraternal insurance, a reasonable and even liberal construction will be adopted in favor, of the member, so as to avoid a forfeiture on technical grounds.</p> <p>7 Same: false statements: sufficiency of proof. The statement of an applicant for beneficial insurance that he was in good health is not shown to be false by proof of temporary ailment not of so serious a character as, according to common understanding, would be called a disease. Thus in this case proof that the applicant had temporarily suffered from throat and stomach trouble, and had suffered occasional headaches from temporary causes, was not sufficient to establish as false the representation of applicant that she had not previously been afflicted by disease; although there was a specific inquiry as to habitual headache which was answered in the negative.</p> <p>8 Same. An applicant for beneficial insurance is not required to disclose the occasion and circumstances of every consultation with a physician for temporary'indisposition not amounting to disease; and • a statement that the applicant had not been attended by a physician was not shown to be false because of proof that she had consulted a physician for- temporary ailments..</p> <p>9 Same: estoppel. Where an applicant informed the examining physician of a fraternal society, at the time of taking his application, concerning the applicant’s last attendance 'by a physician and the nature of his ailment, and was informed that it was not necessary to disclose that matter, he was relieved from any imputation of falsity in failing to disclose the facts.</p>

— Hon. Frank E. Gaynor, Judge. Action of injunction under the statute against the defendant as a saloon keeper of Sioux City. There was a decree in the lower court dismissing the petition, and the plaintiff appeals.

— Hon. F. O. Platt, Judge. Prosecution for rape upon a child under fifteen years of age. Plea of not guilty. Trial to a jury and verdict of guilty of the crime of rape as charged in the indictment. Judgment was entered upon the verdict fixing punishment at thirty years in the penitentiary. Defendant appeals.

<p>Appeal from Wapello District Oourt. — Hon. D. M. Anderson, Judge.</p> <p>As stated in argument, defendant was convicted pf- the crime of adultery, and appeals.</p>

<p>1 Criminal law: credibility of evidence: verdict: passion and prejudice. It is the province of the jury to determine the weight and credibility of evidence; and the fact that it may not credit the testimony of certain witnesses touching a fact essential to the defense does not necessarily show such prejudice and passion as will vitiate a verdict of guilty.</p> <p>2 Misconduct in argument: prejudice. The objectionable language used in this case by the prosecuting attorney in his closing argument, which was withdrawn and the jury advised that it was improper, is held to have been without prejudice.</p> <p>3 Misconduct of jurors: prejudice. It is also held that the remark of a juror made to his fellow jurors while deliberating, that he never heard the moral character of the prosecutrix questioned prior to the trial, was not sufficient to set-aside the verdict; as the record conclusively shows that no prejudice resulted.</p>

— Hon. James D. Smytii, Judge. J. G. Skinner died testate September 23, 1908. His will directed the' payment of debts, gave the widow the use of his estate during life in lieu of dower, bequeathed to two granddaughters, the children of a deceased daughter, $150 each, instructed the executor to deduct $200 advanced to each of two sons from their respective shares of the estate, and; 5th.

— IIon. F. W. Eiohelberger, Judge. Action to recover damages for personal injury. Yer-diet and judgment for plaintiff, and defendant appeals.—

<p>1 Criminal law: indictment: sufficiency. The caption of an indictment and the wording thereof do not affect its validity, and may be omitted; so that where the charging part of the indictment sufficiently charges the crime as committed by the defendant the caption is immaterial.</p> <p>2 Same: malicious mischief. An indictment which charges an offense with such certainty and in- such manner as to enable a person of common understanding to know what is intended is sufficient; and in this case the indictment charging defendant with malicious mischief is held to comply with the rule.</p> <p>3 Evidence: corporate capacity: sufficiency. In this prosecution for malicious injury to the property of a corporation ^ the evidence is held sufficient to show corporate capacity.</p>

— -Hon. Wm. Hutoi-iinson, Judge. Action in equity to enjoin defendant Kelly from selling intoxicating liquors, and to enjoin defendant Magoun from allowing his premises to be used as a place for carrying on such business. There was a decree for defendants, and plaintiff appeals.

— Hon. N. W. Macy, Judge. Civil action for damages for seduction. There was a verdict and judgment for plaintiff, and defendant appeals.

— Hon. James D. Smytiie, Judge. Action to foreclose a mortgage on real estate given by D. Winter to plaintiff to secure the indebtedness to plaintiff of E. D. Winter & Co., for which the mortgagor was liable as guarantor. The property described in the mortgage included the homestead of the mortgagor, and in this action it is asked that such homestead be subjected to the payment of the mortgage indebtedness.

<p>• Appeal from Lee District Court. — IIon. Henry Bank, Jr. Judge.</p> <p>Action to recover damages for an alleged assault made upon plaintiff by one of defendant’s employees. Trial to a jury, directed verdict for defendant, and plaintiff appeals.</p>

<p>i Evidence: transactions with a decedent. The statute precluding evidence of a personal transaction between a witness and one since deceased does not apply to a mere agent of the real party in interest.</p> <p>2 Banks and banking: action for the value of property left for safekeeping: evidence. In this action for the value of notes left with a bank for safekeeping, a paper in the handwriting of the cashier, with whom the transaction was made but who died prior to the trial, and which was given plaintiff at the time of making a deposit of funds and one of the notes, and which showed that at that time plaintiff had in the bank cash and notes, was admissible in evidence as an admission, if not as a formal re'ceipt, although not signed by the cashier.</p> <p>3 Same: estoppel. The mere fact that plaintiff in this'action had stated to the receiver of the bank upon its insolvency, and to the comptroller of the currency, that the cashier was acting for plaintiff individually and not as agent for the bank and was advised that plaintiff was not entitled to file her claim against the bank, did not amount to an estoppel of the right to so assert the claim, where it was not shown that the receiver changed his course or relied upon the statement.</p> <p>4 Same: evidence: sufficiency. The showing of a deposit of the notes and money and failure of the bank or its managing officer to return the same made a prima facie case, and established a liability therefor, in the absence of a' showing of loss thereof not the result of defendant’s negligence, regardless of the question of care required.</p>

— Hon. D. M. Anderson, Judge. Action to remove defendant from office as county treasurer. There was a directed verdict of guilty, on Avhich judgment of removal was entered, and defendant appeals.

— Hon. C. W: Vermillion, Judge. Action for damages for alleged injury to plaintiff’s horses, caused by an alleged nuisance in one of defendant’s streets. The answer was a general denial. Verdict and judgment for plaintiff for $100. Defendant appeals.—

Court. — Hon. H. M. Towner, Judge. Action in equity to enjoin the defendant down and its officers from appropriating as a part of the street a strip of ground alleged to belong to the plaintiff. Decree for the defendant. By amendment the plaintiff added a second count, wherein he claimed title to a strip of ground four feet wide adjoining the park of the defendant town. On such count, the decree was in his favor. Both parties appeal,

<p>1 Sales: warranty: notice of defects: evidence. The purpose -of the provision in a contract for the sale of machinery that the purchaser shall give the seller notice of defects therein is to afford the seller an opportunity to inspect the machinery and remedy the defects; and where the seller has been given actual notice and has acted upon the same as fully as he could have done had formal written notice been given as required by the contract, he is in no position to complain of the notice. It is also the general rule that an agent having power to sell machinery under a contract which contains conditions for the benefit of the seller has authority to waive such conditions. In this action for the price of machinery sold under a contract giving the purchaser a stated time for its trial and providing for written notice of defects to the seller and local agent, it is held that the verbal notice to the agent who acted upon the same and attempted to remedy the defects, and written notice to the seller within the time allowed for a trial of the machinery, were sufficient.</p> <p>2 Same: breach of warranty: waiver. It is also held that as the agent after an unsuccessful attempt to remedy the defects in the machinery informed the buyer that the same belonged to him and that he would have to pay for it, the buyer was justified in believing that the seller would not accept a return of the machinery or do anything further towards fulfilling the conditions of the warranty, and his failure to return the machinery as required by the contract does not preclude him from relying upon a breach of the warranty.</p> <p>3 Same: breach of warranty: recovery of damages. Under a contract for the sale of machinery which provides that the buyer shall settle therefor by payment of freight and the giving of notes for the price, for a trial of the machinery and return thereof if it fails to comply with the warranty, the buyer may recover the freight paid where the warranty is not fulfilled.</p>

— Hon. W. S. Withrow, Judge. Action in equity to establish, a resulting trust in a certain house and lot in the city of Keokuk. There was a decree for defendant. Plaintiff appeals.

— Hon. H. M. Towner, Judge. Action in equity to quiet title to land and to remove a cloud therefrom. Decree for the plaintiffs. Defendant appeals.

<p>Appeal from Woodbury District Court. — Hon. Frank B. Haynor, Judge.</p> <p>Action to abate a liquor nuisance. There was a decree for the defendant, and plaintiff appeals.</p>

<p>Husband and wife: alienation of affection: burden of proof: evidence. Where the petition in. an action for the alienation of affection alleges that defendant by protestations of love and affection did alienate the wife’s affection and induce her to leave . the plaintiff,, and the allegations were denied by defendant, the plaintiff had the burden of showing that defendant’s conduct resulted in the alienation of his wife’s affection, and that it was in itself wrongful or was done with intent to alienate her affection. In this action the evidence is reviewed and held insufficient to warrant a verdict for plaintiff.</p>

— Hon. C. Gr. Lee, Judge. Suit to recover a commission for the sale of land. Trial to the court, and judgment for the plaintiff, The defendants appeal.

<p>1 Constitutional law: property rights: due process: police power. The statutes prohibiting the manufacture and sale of flaxseed or linseed oil unless it answers the purity test recognized by the government, and that such oil shall be sold only under its true name, are not in violation of the federal constitution guaranteeing property rights to citizens in every state, or of the state constitution providing that no person shall be deprived of his property without due process of law; but the same are within a proper exercise of the police power of the state.</p> <p>2 Same: exercise of police power. The state may exercise its police powers to protect its citizens against fraud when its frequency, or the difficulty in detecting or preventing the same is so great that no other means will prove effective.</p>

— Hon. H. K. Evans, Judge. A Demurrer to a petition for new trial was sustained, and, the petitioner having elected to stand on the ruling, the petition was dismissed. The plaintiff appeals.

— Hon.- F. R. Gaynor, Judge. Action for the specific performance of an alleged oral contract for the conveyance of real estate by one Duncan Ross, now deceased, the father of the plaintiff and an ancestor of the defendants. The trial court denied the relief asked, and plaintiff appeals.

<p>Estates of decedents: contingent claims: approval of executor’s report. Where an executrix and sole legatee in her report objected therein to a contingent claim against the estate, solely on the ground that the estate’s liability was uncertain and that she desired to close the estate, and was willing to assume personal liability on the cl^im to do so, the court should have protected the claim 'by approving the report subject to liability against the estate for any amount thereafter found due.</p>

— Hon. J. D. Gamble, Judge. Action for the recovery of personal -property held by the defendant as sheriff under an execution against a third party. Verdict and judgment for the plaintiff. Defendant appeals.

— IIon. H. M. Towner, Judge. Action at law to recover damages for personal injuries received by plaintiff due to a defective county bridge. Defendant denied the allegations of the petition and pleaded contributory negligence on the part of plaintiff. On the issues joined the case was tried to a jury, resulting in a verdict for the sum of $14,500. On defendant’s motion for a new trial this was reduced to $12,000, and-both parties appeal. Defendant will be called appellant.