Volume 149 — Iowa Reports

<p>Municipal corporations: maintenance of waterworks: levy of TAXES : RECOVERY UPON IMPLIED CONTRACT FOR SUPPLIES. The Statutes relating to the management of waterworks in cities of the first class, the fixing of rentals, the levy of taxes and control of funds for their maintenance, confer upon the board of trustees power to determine the amount of a tax levy for the expense of operating the works and it then becomes the duty of the council to make the levy within the amount fixed by the trustee. And one furnishing supplies for operation of the works may rely upon the authority given the board of trustees to purchase the same, and upon the duty of the council to levy the tax to pay therefor, and upon failure of the council to make the levy he may recover for damages therefor as upon an implied promise to pay, and this right is not affected by the amount of the general indebtedness of the city, the cost of supplies being a current expense to be provided for by special tax levy.</p>

— Hon. J. IT. Oliver, Judge. An application was made to the board of review for the assessment of taxes in Sioux City to have the assessment of the Sioux City Stockyards Company made upon its shares of stock as a corporation and not, as the assessor had reported his assessment, upon its property as a merchant.

— IIon. IT. K. Evans, Judge. Suit to recover damages for the vacation of a county highway. There was a verdict and judgment for the plaintiff, from which the defendant appeals.

— Hon. W. H. McHenry, Judge. Suit to recover a commission for procuring a purchaser of certain personal property. . There was a verdict and judgment for the plaintiff. The defendant- appeals.—

— Hon. Hugh Brennan, Judge. Suit in equity for an injunction and an accounting under a mining lease. Trial to the court. Decree dismissing plaintiffs’ petition. Plaintiffs appeal.

— Hon. Wm. Hutchinson, Judge. Certiorari -proceedings to review the order and judgment of the district court of Woodbury County in dismissing a charge of contempt against one O. T. Burtness for alleged violation of the terms of a liquor injunction.—

<p>Appeal from Johnson District Court. — Hon. R. P. Howell, Judge.</p> <p>Action for damages resulted in a judgment against defendant, from which it appeals.</p>

<p>1 Railroads: injury to brakeman: assumption of risk: instructions. In this action for injury to a brakeman caused by a protruding bolt in the car from which he was descending, an instruction that if plaintiff knew or by the exercise of ordinary care might have known of the existence of the protruding bolt, and he appreciated the danger therefrom he could not recover was sufficient, over the objection that the court should have instructed that if he knew that defendant customarily operated cars with protruding boltst and knowing of this custom appreciated the peril incident thereto he should be held to have assumed the risk; especially as no request for such an instruction was made.</p> <p>2 Conflicting state and federal statutes: concurrent jurisdiction. The statute of a state which conflicts with a federal statute upon the same subject must give way to the federal statute. But a right given by a federal statute may be enforced in the state courts unless exclusive jurisdiction is reserved thereby to the federal courts.</p> <p>3 Same: interstate commerce: injury to employee: federal statute: jurisdiction. The federal statute making railway companies engaged in interstate commerce liable for injury to an employee engaged in such commerce does not reserve to the federal courts exclusive jurisdiction in such cases; nor does it effect such changes in practice as indicate an intention that redress may be had in the federal courts only. The act effects quite as important changes and presents as great difficulty in the trial of causes in the federal court as in the state courts. And even though the petition in an action for injury to an employee states a case under the federal statute, it may still be prosecuted in the state courts.</p> <p>4 Pleadings: amendment: discretion. In this action defendant filed an amendment to its answer after all of the evidence had been offered, alleging that plaintiff’s injury was received while employed on a train engaged in interstate commerce. Held, that it was not an abuse of discretion to strike the amendment from the files.</p> <p>5 Same: exclusion of evidence. The fact that plaintiff was engaged in interstate commerce when injured not having been plead, it was proper to strike from the record evidence tending to show such employment.</p> <p>6 Personal injury: excessive damages. Plaintiff in this action, who was a brakeman, was twenty-four years of age, earning $80 to $85 per month, was in good health prior to the action, but suffered pain for some time thereafter, and lost his right arm below the elbow as a result of the injury. Held, that the verdict for $15,000 was excessive, and it was reduced to $12,000.</p>

<p>1 Evidence: production of books and papers. The statute relating to the production of books and papers authorizes a ruling for their production only after it has been made to appear, either by the petition or upon a hearing, where the issuance of the rule is resisted, that the books and papers are material to the issues before the court; and an order for their production is not limited to the books and papers belonging to or in the possession of a party to the suit, but may extend to those belonging to or in the possession of strangers.</p> <p>2 Same: Certiorari: scope of review. On certiorari to review an order requiring the production of books and papers alleged to be material to the issues, the question reviewable is whether the court exceeded its jurisdiction or otherwise acted illegally; as the writ will not lie to review a merely erroneous ruling. Thus, where the court in the exercise of its discretion to require the production of books and papers, determined upon a hearing that the same were material and entered an order for their production, the ruling is not reviewable on certiorari.</p> <p>3 Same: constitutional law: search and seizure. The constitutional provision relating to unreasonable search and seizure does not apply to an order requiring the production of books and papers to be used in evidence.</p> <p>Evans, J., dissenting.</p>

' Appeal from Des Moines District Court. — Hon. W. S. Witiirow, Judge. The opinion sufficiently states the nature of the case and the material facts.

— Hon. B. W. Preston, Judge. Suit in equity for the partition of certain real estate. Trial to the court. Decree for plaintiff, and defendants appeal.

— Hon. Wm. Hutchinson, Judge. Action in equity to enjoin the maintenance of an alleged liquor nuisance. Decree dismissing bill, and plaintiff appeals.

— Hon. Wm. Hutchinson, Judge. Certiorari proceedings to review the action of the defendant judge in dismissing an information filed against one G. A. Pecaut for the violation of a liquor injunction decree.

— Hon. W. S. Withrow, Judge. An action to determine the right to the office of mayor of Keokuk. The plaintiff appealed from the decision of the city council, and the defendant’s motion ‘ to dismiss the appeal was overruled by the district court. The defendant appeals.

— Hon. David Mould, Judge. Action for balance of purchase price of cattle defendants are alleged to have agreed to pay. Erom judgment therefor, they appeal.-

- — Hon. H. K. Evans, Judge. Action to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.—

<p>1 Garnishment: rights of creditors. Generally speaking a garnishing creditor’s right to property is dependent upon the debtor’s right to receive it from the garnishee.</p> <p>2 Same: shipment of live stock: transfer of bill of lading: rights of assignee. Where a bank simply promises to furnish the money or cash the checks of a stock dealer for stock purchased by him, or the dealer merely promises to pay such advancements out of the proceeds of the stock purchased, the bank acquires no lien upon or property rights in the stock; but if the money was furnished on an agreement that the proceeds of the stock was to be set aside and applied to its repayment, or was to be treated as security, or if the legal effect of the manner of shipment and delivery of a bill of lading with a. draft on the consignee attached thereto was to vest in the bank the right to receive the proceeds, then the bank can hold the proceeds for the payment of its advancements as against a subsequent garnishing creditor of the shipper.</p> <p>3 Same: title: garnishment of consignee. The mere delivery of live stock to a carrier for shipment and the receipt by him of a bill of lading are not sufficient to transfer to the consignees the title .to the property, or to make the consignees debtors of the shipper, in the absence of any showing that they are under legal or contract obligation to accept and pay for the stock. But where a shipper turned over to a bank, as in this case, the bill of lading with a draft on the consignees attached to secure the bank for money advanced with which to purchase the stock, a subsequent garnishment of the consignees by a creditor of the shipper did not create a right to the proceeds of the shipment as against the holder of the bill of lading and draft.</p> <p>4 Same. The consignees’ title to property is not complete so as to render him subject to garnishment as the debtor of the shipper until the bill of lading has been received by him, or he has in some manner accepted the shipment or obligated himself to pay therefor.</p> <p>5 Same: pleadings: evidence. The petition of intervention of the bank in this case alleged that the shipper had been* buying stock for shipment, that under an oral agreement the bank had furnished the money for such purchases, that the proceeds of the sales were deposited to its credit or paid to it by draft, and that at the time the consignee in this case was garnished by a creditor of the shipper that method was being pursued. Held, that the pleading in the absence of a motion or demurrer was sufficient, and that the evidence sustained intervener’s claim to the proceeds of the shipment in question</p> <p>6 Same: order for payment of proceeds to interveners. The ship-per’s order to deposit the proceeds of shipments of stock to the credit of the intervening bank, which furnished the money for making the-purchases is held to apply to the particular shipment in question, although made some time previously.</p> <p>Deemer, C. J., dissenting.</p>

— Hon. Charles E. Ransier, Judge. Action in equity to restrain defendant from interfering with or obstructing the passage of water in an alleged stream or natural water course. There was a decree as prayed, and the defendant appeals.

<p>Appeal from Linn District Court. — Hon. E. O. Ellison, Judge.</p> <p>Action on a certificate of insurance resulted in a judgment as prayed. The defendant appeals.</p>

<p>Appeal from Polk District Court. — Hon. Jesse A. Miller, Judge.</p> <p>Action on an alleged contract resulted in judgment as prayed. The defendant appeals.</p>

<p>1 Fraternal Insurance: fraud: evidence. Where an applicant for membership in a fraternal insurance order informed the members of the lodge that he had previously been a member and was then admitted as a suspended member without initiation, the finding that the order was not misled by his statement made immediately before his admission that he had never been expelled or suspended from the order was justified.</p> <p>2 Same: readmission of suspended members: by-laws: construction. An article of the fraternal order in this case, providing that no person should be admitted to membership under a certain age at the time of receiving a degree, is held to relate to his qualification for original admission to the order and not to the time he was subsequently admitted as a suspended member, in view of other articles relating to the readmission of suspended members.</p> <p>3 Same: revival of certificate: recovery. Under the rules of the order in question providing for reinstatement of suspended members and declaring that upon compliance therewith the beneficiary certificate should be renewed, the issuance of a new certificate was unnecessary; and although another certificate was issued the original one was revived and continued in force, and a recovery must be based on the original certificate as renewed.</p> <p>4 Same: action upon certificate: defenses. The violation of a rule regulating the reinstatement of a member of a fraternal insurance order, which is not pleaded in an action upon the certificate, is not available as a defense to the action.</p>

— IIon. Hugh Brennan, Judge. Suit on an insurance policy. Defense that the insured killed himself. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.

<p>Appeal from Pollc District Court. — Hon. W. II. McHenry, Judge.</p> <p>The opinion states the ease.</p>

<p>Appeal from .Jaclcson District Court. — Hon. A. J. House, Judge.</p> <p>The opinion states the case.</p>

- — Hon. O. D. Wiieeler, Judge. Action in equity for'the settlement of the business of an insolvent corporation and to enforce liability upon a bond given by the defendants to secure certain corporate indebtedness. There was a decree as prayed, and the defendants or some of them appeal.

— Hon. L. E. Eellows, Judge. Action at law to recover damages sustained by plaintiff in tbe shipment of a carload of cattle over defendant’s line of railway. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.-

— Hon. Charles E. Albrook, Judge. Action for damages for the value of a cow. It was begun in justice court. From a verdict and judgment for plaintiffs the defendants appealed to the district court. In the district court the plaintiffs moved to dismiss the appeal for want of jurisdiction. This motion was overruled, and a certificate of appeal granted. From such ruling the plaintiffs have appealed.

<p>Appeal from Polh District Court. — Hon. Lawrence He Graee, Judge.</p> <p>The defendant and one Hoy Eriel were jointly indicted upon a charge of larceny of domestic fowls in the nighttime. He elected to have a separate trial, and was found guilty. From the judgment entered on the verdict, he appeals.</p>

— Hon. W. H. McHenry, Judge. Action for partition of real property. There was a decree' finding plaintiff's entitled to one-tenth interest in the property described, and ordering the sale of said property and distribution of the proceeds. During the pendency of the ease the death of defendant, Thomas J. Howard, was suggested, and, on motion of plaintiffs, J. O. Howard was substituted as his administrator.

— Hon. Jesse A. Miller, Judge. Defendant was indicted for criminal conspiracy. Upon trial to a jury, he was convicted, and from the judgment imposed appeals

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

<p>1 Conveyances: building restrictions: rights of subsequent grantees. Where a conveyance ^contains building restrictions as to a part only of the land conveyed, a subsequent purchaser of that part unaffected by the restriction in the original deed is not bound thereby, even though his deed is made subject to such restrictions; as no contractual obligation is thereby created.</p> <p>2 Same: construction. Realty is recognized as an article of commerce and the law favors the utmost freedom in dealing with the same; hence, in construing restrictions and prohibitions as to the use o.f land doubts will be resolved in favor of its free use.</p>

<p>Appeal from Floyd District Court. — Hon. J. E. Clyde, Judge.</p> <p>The opinion states the case.</p>

— Hon. William Hutchinson, Judge. On hearing, the petition in the first-entitled case was dismissed and decree entered as prayed in the last. The plaintiff- in the first and defendants in the last appeal.—

<p>1 Injury to live stock: presumption as to condition : evidence. Where live stock is shown to have been in good condition at the time it was delivered to a railway company for transportation, a presumption of good condition will continue until overcome by competent evidence; but proof simply of bad condition of the stock at a place remote from the railway at the terminal point, and several hours subsequent to its arrival will not overcome this presumption; especially where it appeared that the stock was handled in the meantime by persons not connected with the railway company.</p> <p>2 Same: negligence: instructions. Where the only negligence alleged in an action for injury to live stock was in furnishing plaintiff a defective car for its shipment, the plaintiff should be confined in his proof to such negligence; and the instruction to the effect that if the stock was in good condition when received by the carrier and was injured upon its delivery a presumption that the injury was the result of the carrier’s negligence, and casting the burden upon the carrier to prove that care on its part would not have prevented the injury was erroneous, because not limiting the negligence to that charged in the petition.</p> <p>3 Same: evidence. Where, as in this action for injury to live stock while in transit, the only negligence alleged was the furnishing of a defective car, and a witness for defendant had testified that he had inspected the car and found it in good condition, his evidence as an expert concerning the suitableness of the car for carrying live stock was wholly immaterial.</p>

— Hon. C. E. Albrook, Judge. Action to recover $2,000 by way of damages for personal injuries received by plaintiff’s wife while she, in company with plaintiff and her children, was a passenger on defendant’s train.

<p>Justice of the peace: relationship to the parties: consent to jurisdiction. Although Code, section 284, disqualifies a judge or justice of the peace from acting as such where he is related by affinity to either of the parties within the fourth degree, still where the defendant, even in a criminal action, is related to the justice within the prohibited degree, but appears in person and by counsel and without objection to the jurisdiction because of the relationship proceeds to trial, he thereby consents to the jurisdiction and can not thereafter raise the objection by motion in arrest of judgment.</p>

— Hon. H. Y. Jackson, Judge. Suit to recover damages for an assault and' rape. There was a verdict and judgment for the plaintiff. The defendant appeals.

<p>Appeal from Polk District Court. — Hon. Hugh Brennan, Judge.</p> <p>Action for damages for tlie value of a boar alleged to Have been delivered to the defendant for transportation on August 30, 1907, at Des Moines. Answering the petition, the defendant pleaded certain affirmative matter. Hpon motion of the plaintiff, certain portions of such affirmative matter so pleaded ip, the answer were stricken, on the general ground that the affirmative matter so assailed did not constitute any defense either in whole or in part. Erom such ruling of the trial court, the defendant has appealed.</p>

<p>-i Garnishment: notice to principal defendant: jurisdiction: dismissal of proceeding. While it is true that no judgment against a garnishee can be entered until the principal defendant has been served with notice of the garnishment as provided by the statute, still failure to give such notice will not authorize a discharge of the garnishee or dismissal of the proceedings; as the notice is not jurisdictional in the sense that the proceedings are void or nugatory until such notice is given.</p> <p>2 Same: extent of garnishing creditor's rights. It is a general rule that a garnishing creditor has no greater, right to the fund or property in the hands of the garnishee than the judgment defendant has, but he can not be placed in a worse condition than if the defendant himself were enforcing his claim. There are, however, exceptions to this rule, as where the garnishee holds property of the defendant under a fraudulent transfer or arrangement, and in such cases the rights of the garnishing creditor are not limited to the defendant’s rights against the garnishee.</p> <p>-3 Same: rights of garnishee.: setoff. The question of whether a garnishee holding property of the principal debtor can set off his own-claims against the principal debtor depends upon whether he has any lien upon the property in his hands or right to its possession as security; and if he has mere possession without any right in or lien upon the property aiid the debtor has a present right to the possession which he can assert, the garnishee has no greater right to charge the property by way of setoff for a debt of his own than he would have if the goods had been taken into custody by an officer at the time of the attachment.</p> <p>4 Sales: rescission: insolvency: fraud: evidence. Mere insolvency of the buyer of goods at the time of the sale is not ground for rescinding the sale unless coupled with an intent never to pay for the same, or the natural and probable result of the buyer’s act in obtaining the goods was to defraud the seller. In this action the garnishee sold and delivered lumber to the judgment defendant, and shortly thereafter went upon the premises of defendant and hauled the same away without the consent or knowledge of the defendant, crediting his account therewith. Held, that there was not sufficient evidence of insolvency to authorize rescission or to show any purpose to defraud creditors of the defendant.</p> <p>5 Same: replevin: nature of action. The actions of replevin and detinue are for the recovery of specific personalty, and where the seller of goods which were not paid for retook the same, as in this case, crediting the account of the buyer with their value, and commingled the same with other like goods of his own and sold them as his own, the buyer can not maintain replevin or detinue but is limited to an action for conversion, or upon an implied contract to pay therefor.</p> <p>-6 Garnishment: liability of garnishee: setoff. To charge a garnishee he must either have actual possession of the judgment debtor’s property or be indebted to the judgment defendant at the time the notice of garnishment is served; and where, as in this case, the garnishee did not have actual possession and could only be charged as a debtor of the defendant he was entitled as such to interpose as a setoff any claim which he might have against the debtor, and also as against the garnishing creditor.</p>

— Hon. J. J. Clark, Judge. The action was originally brought upon a promissory note for $11,000, upon which it was claimed defendant, with one H. Sherman, were sureties for J. F. Schuirmann, principal. Defendant pleaded that his signature to the note was a forgery, and was affixed without his knowledge, or authority.

— Hon. Jesse A. Miller, Judge. The defendant was convicted of tbe crime of burglary and sentenced to imprisonment for life. He appeals.—

<p>1 Practice: continuance: jurisdiction: review. The pendency of a suit before the court confers jurisdiction to grant a continuance and to make an order as to costs, both under the statute and independently thereof; but even if the court erred in granting a continuance and entering an order as to costs, the party aggrieved has a 'complete and adequate remedy by appeal and can not bring certiorari to review such orders of the court.</p> <p>-2 Contempt: review. Certiorari is the only remedy provided by statute for reviewing contempt proceedings.</p> <p>3 Same: failure to obey subpoena. -Failure to obey the mandate of a subpoena, without sufficient excuse, which has been personally served by reading the same to the witness, is punishable as for contempt. But although the statute requires personal service by reading the subpoena to the witness, still the reading may be waived, and when expressly waived due service in that respect is sufficient to authorize punishment for contempt for failure to appear. .</p> <p>4 Same. Where the person serving a subpoena has power to do so, regardless of his official character, the question of whether his return should have been verified goes to the admissibility of the return in evidence, and will not affect the guilt of a witness failing to obey the subpoena; and this is especially true where the person serving the subpoena testified to the truth of his unverified return.</p> <p>-•5 Same: official knowledge of offense. Unless a contempt is committed in the presence of the court or comes officially to its knowledge, an affidavit showing the nature, of the offense is necessary; but the presentation of a subpoena with the return thereon, although irregular in form, and failure of the witness to appear, is sufficient basis for the court to proceed against, the witness for contempt.</p>

<p>Appeal from Webster District Gourt. — Hon. C. E. Ad-brook, -Judge.</p> <p>An action to recover damages for the death of the plaintiff’s husband. After the plaintiff’s evidence had been introduced, the court directed a verdict for the defendant. The plaintiff appeals from a judgment on such verdict.—</p>

— Hon. James A. Howe, Judge. Action at law upon a certificate of deposit. Verdict and judgment for the defendant, and plaintiff appeals—

<p>Appeal from Story District Court. — Hon. H. M. Wright, Judge.</p> <p>The opiniou sufficiently states the case.</p>

<p>Bills and notes: when given to prevent criminal prosecution: evidence. In this action upon promissory notes, the evidence is reviewed and held to show that they were given by the wife to .prevent the criminal prosecution of her husband for an alleged forgery.</p>

<p>1 Resulting trusts: presumption. Where the land acquired by a wife by descent has been sold and the proceeds used in purchasing other land, title to which was taken in the name of the husband, a presumption of a resulting trust in favor of the wife arises.</p> <p>2 Same: evidence. In determining whether a husband, as in this case, holds the legal title to land in trust lor his wife the court will scrutinize the evidence of the husband and wife closely with a view to thwarting collusion between them as against an execution creditor of the husband. In this action the evidence is held to show as between the husband and wife that the husband held the legal title to the land in question for the benefit of the wife, the same having been purchased with the proceeds of land which descended to her.</p> <p>3 Executions: sale of lands en masse. The statute relating to the sale of lands on execution either separately or en masse will not be too narrowly construed; and while a sale en masse of lands which could have been advantageously sold separately 'can be set aside, still where the same can not be sold in separate tracts for want of bidders, it is proper to sell the same as a whole.</p> <p>4 Same: fraud: inadequacy in price. Mere inadequacy in price is not usually sufficient in itself to avoid an execution sale, but when taken in connection with other irregularities may tend to establish either actual or constructive fraud; and where other circumstances are shown which excuse a failure to redeem, gross inadequacy in price may be sufficient to establish an inference of fraud.</p> <p>5 Execution sales: when voidable. Where, as in this case, the execution sale was made without publication of notice, no bidders appeared except a representative of the execution plaintiff, the sheriff failed to exercise his right to postpone the sale and the owner was excusably ignorant of the sale and of the debt for which the sale was made until after execution and delivery of the sheriff’s deed, the price was grossly inadequate, and the sheriff’s return on execution was withheld for some time, and the equitable owner offered to do equity by paying the amount of the sale with interest and costs, the sale and deed were properly set aside.</p> <p>6 Same: postponement of sale. A sheriff must exercise his right to postpone a sale on execution with impartiality toward all parties interested, and a failure to do so may be ground for setting the sale aside.</p>

— Hon. H. P. Howell, Judge. Plaintiff, as surviving member of the firm of Lee & Harvat, and as assignee of the firm of Cerney & Louis, brought action to recover compensation alleged to have become due to said firms under written contracts made with them by the defendant, under which contracts defendant became bound to pay compensation to said firms for keeping and handling textbooks for use in defendant’s schools furnished under alleged contracts with the publishers of such…

<p>Appeal from Muscatine District Court. — Hon. J. W. Bollinger, Judge.</p> <p>Action for damages resulted in a judgment for defendant. Tbe plaintiff appeals.</p>

<p>Appeal from Polls District Court. — Hon. Jesse A. Mller, Judge.</p> <p>The defendant was convicted of the crime of conspiracy, and, appeals.</p>

<p>1 Appeal: motion to strike. An appeal may be taken from the ruling upon a motion to strike parts of a pleading.</p> <p>2 Principal and surety: fraud: concealment of facts: pleadings. Where one about to become a surety for another applies to the creditor for information concerning the nature, extent and risk of the obligation, or concerning circumstances of the debtor, and the creditor undertakes to give such information, he must disclose all the material facts within his knowledge affecting the surety’s liability; and concealment of any fact unknown to the surety, which, if disclosed, would have deterred him from assuming the obligation constitutes a fraud which will relieve the surety from liability, although the undertaking was for a sufficient con-, sideration.</p> <p>In this action by the maker and surety to cancel notes executed to defendant bank, the surety’s reply to defendant’s counterclaim on the notes is held to allege such a concealment by the bank of facts relating to the maker’s indebtedness as to amount to a fraud upon the surety, and the court erred in striking these allegations from the reply.</p> <p>3 Same: election of remedies: estoppel. The surety in this action was not estopped from pleading the fraud of the payee in inducing him to assume the obligation by the fact that he joined in the main action for cancellation of the notes and appealed from an adverse finding, but dismissed the appeal before it was submitted; no judgment being shown against either the maker or surety or relied upon by the payee in his action upon his counterclaim.</p> <p>4 Same. The surety in this case was not precluded from relying on the misrepresentations of an officer of defendant bank as to the extent of the maker’s indebtedness by the fact that some of his debts were usurious, in the absence of a showing that the same were void; or by the fact that part of the indebtedness was due to the officer and not to the bank.</p> <p>5 False representations: rescission: damages. False representations knowingly made with intent to deceive, or a concealment of material facts with like intent to induce one to incur an obligation which he would not otherwise have made are grounds for rescission, although no actual damage results.</p> <p>6 Principal and surety: sale of principal’s property: application of funds. Where the principal, surety and creditor agree that the proceeds arising from the sale of the principal’s property ghall be applied on the guaranteed debt the surety may compel such application, where the fund has been unnecessarily diverted by the principal with the creditor’s knowledge and assent.</p> <p>7 Same: necessary diversion of funds: pleadings. In this action the mere allegation of the surety that the proceeds of property sold by the principal, which the parties had agreed should be applied to the guaranteed debt, were used to defray expenses of the principal’s business without the surety’s knowledge, did not show a necessity for such use of the funds as to justify their diversion from the guaranteed obligation.</p> <p>8 Appeal: motion for more specific statement. Ordinarily an order requiring a party to make his allegations more specific is not appealable.</p> <p>-9 Pleadings: more specific statement. A motion to make a pleading more specific by alleging matters of evidence and not ultimate facts; or requiring the statement of matters in avoidance of those already alleged in the pleading, should be overruled.</p>

— IIon. TIugh Brennan, -J udge. Action to recover on a policy of insurance against loss by burglary. A demurrer to defendant’s answer being sustained, and defendant electing to stand upon bis pleading, judgment was rendered for plaintiff, and defendant appeals.

<p>Appeal from Hardin District Court. — IIon. E. M. Wright, Judge.</p> <p>Indictment for burglary. Verdict and judgment of conviction. Defendant appeals.</p>

<p>Appeal from, Johnson District Court. — Hon. E. P. Howell, Judge.</p> <p>Action at law to recover possession of certain certificates of deposit alleged to be a part of the estate of Michael Kelly, deceased, and to he wrongfully detained by the defendant. The plaintiff appeals from the ruling of the trial court setting aside a verdict in his favor and granting a new trial on the defendant’s motion.</p>

— Hon. Hugi-i Brennan, Judge. Suit in equity for the establishment and foreclosure of a mechanic’s lien. Decree for plaintiff for the amount claimed, and defendant appeals

<p>Judgments: dismissal of counterclaim: jurisdiction. Where the defendant by his answer admitted the claim of plaintiff and pleaded a counterclaim, and the cause was noted for trial but carried over until the next term without a new trial notice, and defendant failed to appear when the cause was reached for trial at the succeeding term, the court had jurisdiction to grant judgment for plaintiff and to dismiss defendant’s counterclaim without prejudice.</p>

<p>Landlord and tenant: compromise and settlement : evidence. In this action for rent the act of the tenant in turning over the key to the premises and surrendering the premises for the remainder of the term was a sufficient consideration for a compromise and settlement of the rent to be paid up to the time of the surrender.</p>

— Hon. B. P. Howell, Judge. Suit in equity to establish the boundary line between plaintiff’s and defendants’ property, and to restrain defendants from removing a fence upon a certain line. A temporary writ of injunction was issued, which, upon final heáring, was made perpetual. Defendants appeal.

— Hon. C. E. Albrook, Judge. The charge in the indictment was that the defendant “having in his possession a certain false and forged real estate mortgage, and knowing the same to be false and forged, said mortgage being in words and figures following, to wit [here follows the copy of the alleged mortgage], did then and there utter and pass the same as true, with the intent then and there to defraud, contrary to the statute in such case made and provided, and against the…

— Hon. ,W. G. Clements, Judge. Action on contract of exchange for agreed price of stock of goods and fixtures. The defendant prayed that the contract be reformed so that value only might be recovered, and by way of cross petition demanded that the contract be specifically performed. The relief last mentioned was decreed. Plaintiff appeals.

— Hon. D. Y. Jackson, Judge. Action in equity to foreclose a real estate mortgage. There was a demurrer to the petition, which was sustained, and the plaintiff appeals from a judgment rendered thereon.

<p>i Contracts: uncertainty: extrinsic evidence: consideration. Where a contract by its terms is uncertain the intention of the parties becomes material, and extrinsic evidence of the facts and circumstances leading up to the transaction is admissible to explain the intention and meaning of the parties. In this action the defendants who were majority owners of certain bank stock sold the same to different parties, basing its value upon assets of the bank, among which were certain notes of doubtful value. To indemnify the purchasers against loss the defendants, as first parties, executed an agreement with plaintiff and the cashier of the bank as second parties, which provided in substance that the defendants had sold to the plaintiff and others the stock in question, in which they agreed to be liable for any loss which might occur because of inability to collect the notes in question. Held, that although the contract was uncertain, yet in view of the circumstances surrounding the transaction it is upheld on the ground that it was an undertaking to protect the purchasers and is enforceable, and the consideration of the sale gave it validity.</p> <p>2 Same: construction of contracts. As a general rule a contract is to be construed by the court, Dut where extrinsic evidence is required and received to aid in its construction and the same is controverted or capable of different inferences, it then becomes a question for the jury.</p> <p>3 Same: actions : parties. A party who has no real interest in the subject matter of a contract but is only a representative of other parties to the instrument need not be joined in an action brought thereon by such other parties.</p> <p>4 Same. Where the party suing upon a contract has an independent interest therein sufficient to support a cause of action on his own behalf, an objection that he has no proper assignment of the causes of action from others for whom he is also suing is not fatal to the action; since other parties necessary to relieve defendant from a multiplicity of suits may be brought in.</p> <p>5 Same: enforcement. It is the duty of courts to enforce contracts fairly made and not to annul or disregard them unless required to do so by some well established and imperative rule of law.</p>

<p>1 Master and servant: unreasonable'requirements of the servant: negligence. The act of a master in requiring a servant to work an unreasonable length of time without adequate opportunity for rest and sleep may be negligent as to a third person, who, without fault on his part is injured because of the servant’s weakness or exhaustion, while as between the master and servant the rule might be otherwise.</p> <p>2 Same: assumption of risk. It is the general rule that the master must observe reasonable care in directing a servant and sending him into places or situations involving greater hazard than naturally pertains to the particular service; for the servant’s position is one of subordination and obedience and he may within reasonable limits suppress his apprehension of danger in reliance upon the superior knowledge of the master. But if the danger to be apprehended from obeying the master’s order is better known to the servant than to the master, or if the servant fully appreciates the nature and extent of the danger, he will be held to have assumed the risk.</p> <p>-3 Same: evidence. In this action by a locomotive engineer for injuries alleged to be the result of continuous, active service until he had become exhausted, the evidence is reviewed and held to show that he was not peremptorily directed to continue the service, and that he was better qualified to judge of his ability to do so than the master; and that he therefore assumed the risk incident to continuing the service without rest.</p>

— Hon. J. M. Parker, Judge. Action to recover damages for personal injuries resulting to the minor son of plaintiff from being thrown out of a buggy by reason of the frightening of the horse attached thereto, while said son was attempting to drive across the track of defendant’s road in the city of Marshalltown at a street intersection; the allegations of negligence being that the engine and cars of the - defendant which frightened the horse were operated at an unlawful rate…

— Hon. C. H. Kelley, Judge. Action to recover compensation, for services rendered under contract and for other items of indebtedness arising out of an implied contract. There was a trial before a jury; but at the conclusion of the evidence offered by both parties the court on plaintiff’s motion directed a verdict in his behalf for $330, which was, with the exception of one small item of claim, the entire amount sued for by plaintiff.

<p>Husband and wife: desertion: destitute circumstances: criminal liability. To constitute the crime of desertion of a wife or child within the meaning of the statute it is not necessary that they be left absolutely unhoused, unclothed and in a condition of actual starvation; but it will be sufficient if it appears that a condition of extreme poverty and great need exists or that they are without money or property of consequence upon which to rely for support. The evidence in this action is held to require a submission of the question of whether the wife and young child were left by defendant in destitute circumstances.</p>

<p>Appeal from Carroll District Court. — Hon. Z. A. Church, J uclge.</p> <p>The accused was convicted of the crime of burglary, and appeals.</p>

— Hon. A. N. Hobson, Judge. Proceedings to disbar the defendant. There was a judgment revoking his license to practice law, and he appeals.

<p>i Criminal law: murder: self defense: submission of issue. Where the defendant accused of murder testified that he was assaulted by deceased the question of self defense was involved so as to justify an instruction upon that subject; and where the instruction upon that subject, as in this case, was submitted for consideration only in the event that the jury first found that defendant killed deceased its submission was not prejudicial error although defendant denied the killing.</p> <p>2 Same: circumstantial evidence: instructions. Where there is direct evidence connecting defendant with the commission of a crime failure to specifically instruct on the question of circumstantial evidence is not erroneous; especially where there was no request for further instructions on that subject.</p> <p>3 Same: evidence. The manner in which a statement is made is often indicative of the meaning to be conveyed by the speaker, and such intended meaning may be the very reverse of the meaning of words actually used; so that where the manner of making the statement is essential to its meaning it is proper for a witness to describe it; and a party can not keep the benefit of such a statement and at the same time reject the characterization by the witness as to the manner in which it was made.</p> <p>4 Same: evidence of identity: prejudice. Evidence as to the identity of defendant in this case, while technically neither material nor competent, is held to have been without prejudice in view of the fact that defendant himself conceded the question of his identity.</p> <p>5 Same: instruction: presentation of defendant’s theory. Where, as on this prosecution, the defendant testified that deceased was killed by an accidental fall from a moving train, refusal to instruct specifically on that subject was not erroneous, as that question inhered in the case as presented to the jury by the instructions given.</p> <p>6 Same: evidence. The evidence in this prosecution is held to support a conviction for manslaughter.</p>

— Hon. F. ÜVL Powers, Judge. Defendant, was indicted, tried, and convicted of the crime of burglary, and from tbe judgment imposed appeals.

— Hon. D. ]\1. Anderson, Judge. In tbis action in equity two school district townships and individual residents and taxpayers of said townships seek to have annulled the proceedings for the formation of the independent school district of Stockport and to have said district and the members of its board of directors enjoined from exercising any authority in consequence of such proceedings, and from taking any steps toward assessing or taxing the property situated within and…

— Hon. C. E. Eansier, Judge. Action in equity to have canceled a contract between the defendants, the city and the improvement company, for the pavement of a street and to have the city enjoined from levying any part of the contract price against the plaintiffs’ abutting property, and also to have the city enjoined from making any levy for the improvement fund out of which the cost of paving street intersections under such contract should be made and from issuing any city…

— TIon. O. D. Wheeler, Judge. Action to recover damages for personal injuries received while in defendant’s employment. At the close of the evidence introduced for plaintiff, the court sustained defendant’s motion for a directed verdict, and plaintiff appeals.

<p>Appeal from Ida District Court. — Hon. F. M. Powers, Judge.</p> <p>The defendant was accused in an information filed with Wm. Shippmann, Esq., a justice of the peace, of having doctored a horse belonging to Albert Erickson “as a veterinary surgeon and charged and received $3 for the work he did as such veterinary surgeon,” although without a license to so practice. He was convicted and appealed to the district court, where he was tried again and sentenced to pay a fine of $25, from which judgment he has again appealed.</p>

<p>Appeal from Shelby District Court. — Hon. O. D. ■ Wheeler, Judge.</p> <p>Controversy over a boundary line between farms. The 'plaintiffs in the two cases brought suits respectively to enjoin interference by the defendant with the partition .fences long existing between them and the defendant. After .a hearing upon the merits, there was a decree in each case for the plaintiff. Defendant appeals.</p>

<p>1 Exclusion of evidence: prejudice. The striking of evidence from the record is not prejudicial error where it is subsequently reintroduced, and especially so where the same is treated in the instructions as before the jury for consideration.</p> <p>-2 Evidence: instruction. Omission of the court to refer in its instructions to an item of evidence, although it might have properly done so, is not'erroneous in the absence of a requested instruction referring to it._</p> <p>3 New trial: newly discovered evidence. Evidence which is merely cumulative in character will not require the granting of a new trial on the ground of newly discovered evidence.</p> <p>4 Same: failure to fully examine witness. Failure to examine a witness as to all matters essential to the trial is presumptively negligence and will not authorize a new trial on the ground of newly discovered evidence.</p> <p>5 Same. A party to an action who had reason to think that a witness testifying to a state of facts knew more about the matter than he had disclosed to the party was put upon inquiry as to what the witness in fact knew; and a failure to elicit the additional evidence was a lack of diligence essential as the basis for a new trial on the ground of newly discovered evidence.</p> <p>6 Same: newly discovered evidence. A party is not entitled to a new trial on the ground of newly discovered evidence consisting of testimony that a witness on the trial gave before the grand jury, where the party did not avail himself of the opportunity to secure the evidence when the witness was upon the stand during the trial.</p> <p>7 Same. The granting of a new trial on the ground of newly discovered evidence is largely discretionary, and the denial of a new trial on the ground of newly discovered evidence, which is merely cumulative or which is not of á character likely to produce a different result will not be disturbed on appeal.</p>

— Hon. F. M. Powers, Judge. Defendants were jointly indicted for the crime of murder in the first degree. They were each convicted of murder in the second degree, and appeal.

— Hon. M. A. Roberts, Judge. Action at law to recover a death benefit on a certificate of membership in a fraternal beneficiary association. The defense was that the deceased came to his death by means of suicide. Verdict and judgment for the plaintiff. Defendant appeals.

— TIon. M. A. Huberts, Judge. Action at law to recover a death benefit on a certificate of membership in a fraternal beneficiary association. The defense was that the deceased came to his death by means of suicide. Verdict and judgment for the plaintiff. Defendant appeals.

F. M. Powers, Judge. Suit in equity to restrain the defendant from collecting a tax assessed against the plaintiff’s real estate. There was a judgment for the defendant. The plaintiff appeals.

— Hon. A. B. Thornell, Judge. Suit on a fire insurance policy. Trial to jury, and verdict and judgment for the plaintiff. The defendant appeals.

<p>Trusts: sale by trustee and remaindermen: division of proceeds: effect. In this action a life tenant and the remaindermen joined in the conveyance of land owned by them and amicably divided the purchase money, the life tenant taking her share and investing it in other lands in her own name. Held, that the portion which the life tenant received was in her own right as a consideration for the life estate, and that the property purchased with the proceeds thereof was not held in trust for the remaindermen, but that upon the death of the life tenant it descended to her heirs.</p>

<p>1 Cancellation of instruments: pleadings: laches. A plea of laches is a logical and permissible defense to an action to set aside a deed for fraud and undue influence.</p> <p>2 Pleadings: pendency of an action. The plea of another action pending is one in abatement and not in bar, and in no manner involves an election of remedies or an estoppel.</p> <p>3 Cancellation of instruments: mental incompetency: undue influence. Where an undue advantage has been taken of the weakness of mind and want of judgment of a grantor for the purpose of depriving him of his property equity will grant relief, even though neither actual fraud nor technical duress is shown.</p> <p>In this action the evidence is held to show 'that the defendant obtained a conveyance of the property of his son-in-law, who was weak minded, for an inadequate consideration and by the exercise of undue influence, such as authorizes a cancellation of the conveyance.</p> <p>4. Same: laches. Imbecility and mental weakness are an excuse for delay in bringing an action to set aside a conveyance obtained because'of undue influence over an incompetent grantor; and even though a guardian may have known the facts long prior to his appointment this would not affect his conduct thereafter, and where he acted with promptness in bringing suit, as in this case, the defense of laches is -not available.</p> <p>5 Same: tender. A grantee who has obtained a conveyance from an incompetent, knowing of his incompetency, and who by his own acts has rendered it impossible for the grantor to place him iti statu quo can not insist in an action to set aside the conveyance that the grantor tender back what he has received. In this action, however, nothing is shown to have been left in the grantor’s hands to be tendered back.</p> <p>6 Actions: abatement. A plea of another action pending is not sustained where the issues involved in the two suits are not the same.</p> <p>7 Cancellation of instruments: payment of'mortgage. Where, as in this case, the defendant obtained title to property by undue influence over an incompetent grantor and subsequently incumbered the property, for which he became personally liable, the court on cancelling the conveyance without requiring the grantor to make any return to the grantee should have provided that the land stand as the primary fund for the payment of the mortgage.</p>

— Hon. O. D. Wheeler, Judge. Action to recover damages for personal injuries received through the alleged negligence of the defendant while plaintiff, as a mail clerk in the employ of the federal government, was riding in the mail car on defendant’s train. There was a verdict for plaintiff, and from judgment thereon defendant appeals.

— Hon. Z. A. Church, Juds'e. This is a controversy over the distribution of an estate. The administratrix filed a report and asked an order of the court directing her in the distribution thereof. She also averred that one Catherine Carroll, a minor, claimed to be an heir at law of the decedent and that such claim was doubtful, and she asked that the said Catherine Carroll be required to establish her relationship by proper proof.

<p>l Equitable actions: reference: certificate of referee. Under the statute providing that in equitable actions where issues of fact are joined all of the evidence shall be taken down in writing or by deposition and shall be certified by the judge for the purpose of a retrial, a referee trying the case must certify to the evidence offered before him for the purpose of facilitating a review of his findings; and his certificate .must be as definite and certain as that required to be made by the trial judge, and must cover and include all the evidence offered before him.</p> <p>2 Same: certificate of trial judge. Although the referee’s certificate of the evidence offered before him is sufficient, still when an appeal to the Supreme Court is taken it is from the order and judgment of the trial court and not from the conclusions ,of the referee, so that it is necessary for the trial judge to certify to the evidence offered and introduced in the district court in order to identify the evidence upon which the court acted, and to make it of record when filed for the purpose of a trial anew under the statute.</p> <p>In this action neither the certificate of the trial judge nor the decree entered, if treated as a certificate, are sufficient to meet the requirements of the statute.</p> <p>3 Same: certification of evidence: waiver of defect: review on appeal. By filing an amended abstract, as in this case, before moving to strike the appellant’s abstract because of an insufficient certificate of-the evidence to authorize a trial de novo, the appellee did not waive the defect in the certificate, where he expressly alleged in his amended abstract the lack of such certificate. And where there was no proper certificate of the evidence to permit a trial de novo the appellate court must take the findings of fact as made by the referee and affirmed by the trial judge as true, and determine therefrom the correctness of his conclusions of law and of the final decree.</p> <p>4 Partnership: advancements : interest. Ordinarily interest will not be allowed individual partners on advancements made by them to the partnership; but where they have contracted for the allowance of such interest their agreement will be enforced.</p> <p>5 Same: account stated. Statements by a partner to another will not be treated as an account stated.</p> <p>-6 Same: dissolution: burden of proof. One partner alleging a settlement between them has the burden of proof on this issue in a suit for dissolution of the partnership.</p>

<p>1 Contracts: breach: damages: evidence of profits. Under the agreement by which plaintiff was to sell defendant’s machinery and to use defendant’s warerooms for that purpose, as well as for the sale of other goods than those of defendant, and by which defendant was to share in the profits of all such sales, the question of profits arising to plaintiff for the time for which he was prevented by defendants from pursuing the contract involved profits from the sale of goods other than those of defendant.</p> <p>2 Same: prospective profits: how determined. In determining the future profits to be derived from the sale of goods, the reasonable cost of salesmen and clerks, although their work may have been performed by the parties themselves, should be deducted from the gross receipts.</p> <p>3 Same: evidence. In this action to recover prospective profits on the sale of goods because of defendant’s breach of the' contract, evidence concerning what plaintiffs may have earned in another employment over and above their expenses during the remaining term of the contract was immaterial; although the rule might be otherwise if the action was for a loss of personal earnings.</p>

Proceedings in certiorari to test the legality of' an order in habeas corpus proceeding whereby the defendant judge admitted the petitioner therein to bail, pending his appeal to the Supreme Court from an order of dismissal of his petition for writ of habeas corpus.

<p>1 Conveyances: wills: election of remedies. To defeat an action by the institution of another suit there must have been two or more concurrent but inconsistent remedies, and the party must have indicated his choice by actually bringing action to enforce one right with knowledge of the facts, or in some other decisive way indicated his election.</p> <p>In this action to set aside a conveyance it appears that on the same date the grantor executed a will reciting the conveyance and stating therein that she desired the grantee to have the property conveyed. The grantee presented the will for probate but it was found to have been executed through undue influence. Held, that the grantee was not precluded by presenting the will for probate from asserting title under the deed; as the remedies were not so inconsistent as to require an election.</p> <p>2 Same: Res adjudicata. Even though the deed and the will in this case were executed at the same time as a part of the same transaction, still they were separate papers of a different character taking effect at different times, and a finding that the execution of the will was the result of undue influence was not conclusive of the fact that the deed was also executed from undue influence.</p>

<p>Appeal from Pottawattamie District Gourt. — Hon. O. D. Wheeler, Judge.</p> <p>Action for damages caused by the negligent delay in the shipment of four carloads of horses. There was a judgment against defendant, from which it appeals.—</p>

Apfeal from Mills District Court. — Hon. O. D. Wheeler and Hon. E. B. Woodruee, Judges. Action to set aside a deed and to quiet title. A demurrer to the petition was sustained, as was a motion to strike an amendment thereto, and, the plaintiffs electing to stand on the rulings, the petition was dismissed. The plaintiffs appeal.

<p>Appeal from Hancoclc District Court. — Hon. J. J. Clark, Judge.</p> <p>The opinion states the case.</p>

<p>Appeal from Chickasaw District Court. — Hon. A. N. ■ Hobson, Judge.</p> <p>Action in equity to foreclose two certain mortgages executed by William McGregor and Jenny McGregor, his wife, to Lipman Loser. There was a decree as prayed and the Plainfield Savings Bank claiming a superior lien on the mortgaged land appeals.</p>

— Hon. L. E. Eeleows, Judge. This is an appeal from an order of the trial court requiring the intervener to make restitution of money collected by execution on a former judgment of the lower court in its favor. Such collection was made pending an appeal from such judgment to this court.

— IIon. E. P. Howell, Judge. Suit in equity to set aside a partition sale of real estate and for an accounting. There was a judgment for the defendant. The plaintiffs appeal.

— Hon. James H. Rothrock, Judge. Notion to recover damages for personal injuries received. by plaintiff while in defendant’s employ. There was a verdict for plaintiff, and from judgment thereon defendant appeals.

<p>Appeal from Pottawattamie District Court. — Hon. A. B. Thorneld, Judge.</p> <p>Action for damages resulted in judgment for defendant, from which plaintiffs appeal.</p>

— Hon. W. E. Green, Judge. Action in equity to require an assessment upon the membership of the defendant association to pay the amount of an insurance benefit certificate issued by said association to one George W. Hry, now deceased. The court found for the defendant, dismissed the bill, and plaintiff appeals.

— Hon. E. P. Howell, Judge. Action at law to recover damages for the death of the intestate, alleged to have been occasioned by the defendant’s negligence. There was a directed verdict and judgment for the defendant, and plaintiff appeals.—

— Hon. O. D. Wi-ieeler, Judge. Action at law to recover damages for fraud and deceit concerning the quality and value of land. After a verdict for defendant, the trial court sustained a motion for a new trial and defendant appeals.

— IIon. W. P. Perguson, Judge Action to recover compensation for architect’s services rendered defendant at his instance and request. Defendant filed an answer and counterclaim and under the issues tendered the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

— Hon. Robert Eonson, Judge. Action for damages resulted in a verdict being directed for defendant, and judgment entered thereon. The plaintiff appeals.

— IIon. C. B. Bradshaw, Judge. The defendant was found to be the father .of Anna Schueller’s illegitimate child and judgment entered accordingly. He appeals.