Volume 151 — Iowa Reports

— Hon. E. B. Woodruff, Judge. Action to quiet title to a lot in the city of Bed Oak. Defendants pleaded adverse possession and other defenses, and also by counterclaim asked that title he quieted in them. Decree for defendants, and plaintiff appeals.

<p>Appeal from 8ac District Court. — Hon. F. M. Powers, Judge.</p> <p>Action at law to recover damages for personal injury. Verdict and judgment was returned for defendant, and plaintiff appeals.</p>

— Hon. Gf. H. Soott, Judge. This is an action brought on a written contract. There was a trial to the court without the intervention of a jury and a judgment for the plaintiff. The defendant appeals.

— Hon. F. W. Eichelberger, J udge. Action for damages resulted in a verdict and judgment for plaintiff, from which defendant appeals.

<p>Appeal from Linn District Court. — Hon. W. N. Treiciiler, Judge.</p> <p>The opinion states the case.</p>

— TIon. H. K. Evans, Judge. Proceedings for the appointment of a guardian for John Moorhead, an alleged incompetent person. Guardian appointed as prayed, and the defendant appeals.

— Hon.- Jas. W. Bollinger, Judge. Defendant appeals from a decree reducing the assessments against plaintiff’s lots. Subsequently the plaintiff appealed.

— Hon. D. M. Anderson, Judge. Proceedings for the probate of the will of Mary E. Hastings, deceased. Trial was had to the court upon an agreed statement of facts. Judgment admitting the will to probate, and the contestant appeals.

— Hon. K. M. Wrigiit, J udge. Appeal from an order of the district court confirming the action of the Board of Supervisors of Boone County in the establishment of a drainage district.

<p>1 Real property: contract for sale: fraud: evidence. In an action for the recovery of the purchase money paid on the sale of real estate and to rescind the contract on the ground of fraud, the evidence is reviewed and held insufficient to show fraud.</p> <p>2 Same: conveyance of homestead: ratification by wife: estoppel. Under the statute providing that no conveyance or contract to convey a homestead pf a married person is valid unless both husband and wife join in the execution of the same joint instrument, a contract of the husband alone is not absolutely void, but may be subsequently ratified by the wife. And where, as in this case, the vendee and scrivener both informed the wife that it was not necessary for her to sign the contract which she was willing to sign upon request, and where she did join in the deed which was placed in escrow at the time agreed upon, the contract became valid and binding, though not signed by her; and the purchaser was by his acts and representations estopped to claim its invalidity.</p>

<p>Intoxicating liquors: statute: limitation of consent: nuisance: injunction. Chapter 142, Acts of the Thirty-third General Assembly, provides that from and after the passage of this act no city shall grant consent to sell liquor to a greater number of persons than one to every one thousand of the population of a city, and that in a city where a greater number of persons than so provided now hold such consent the city shall not be required to withdraw- a sufficient number of consents to comply with the statute, took effect July 4, following its passage. Prior to that date a city granted a consent to sell liquor though it had already given consents in excess of this statutory limit. Held, that the person to whom such consent was granted was subject to a suit in injunction to restrain him from maintaining a liquor nuisance.</p>

— Hon. O. H. Kelly, Judge. Action at law upon two policies of insurance covering damages due to tornadoes, cyclones, and windstorms. Trial to the court' without a jury, judgment for plaintiff, and defendant appeals.

<p>1 Husband and wife: conveyances: undue influence: presumption: evidence. 'In view of our statute, Code, section 3157, the mere relation of husband and wife is not sufficient to raise the presumption of undue influence in the execution of a conveyance by one to the other; there must be a further showing of mental or physical weakness, or such surrounding circumstances as to render the one peculiarly susceptible to the control of the other. In this action by the heirs of the wife to establish their interest in land conveyed by her to her husband, the evidence is held to overcome any inference of undue influence.</p> <p>2 Same: conveyances: delivery: evidence. Possession of a deed by the grantee is presumptive evidence of delivery, and delivery will be presumed from the recording of a deed without evidence regarding the consideration paid therefor; but this presumption may be overcome by satisfactory evidence. In the instant case the evidence is held sufficient to show delivery of a deed from the wife to the husband.</p> <p>3 Oral contract to devise property: validity: evidence. An oral contract of the owner of property to adopt the child of another, by which he agrees to give the child all his property upon his death the same as his own child, provided the child lives with him until arriving at its majority, is valid; but the oral proof of thq agreement must be clear, satisfactory and convincing. In this action the evidence is held sufficient to’ establish an oral contract.</p> <p>4 Same: evidence: transactions with a decedent. One who, at the request of a parent, secures the adoption of a child by an agreement with the adoptive parent that the child shall have his property on condition that it lives with him until arriving at majority, is not disqualified from testifying to the transaction by Code, section 4604, on the ground that he had an interest in or title to the property in controversy.</p> <p>5 Same: contract to devise property: validity. An agreement by which an adoptive child was to have all the property of his adoptive parent the same as though his son is not an agreement that the child shall inherit, and does not prevent the disposition of the property by will.</p>

. — Hon. J. J. Clark, Judge.. The will' of Alv Tallack Brackey, deceased, having-been presented for probate, its' admission was' contested by. the defendants on the- ground of mental incapacity of the testator, and of undue influence exercised ■ over him by the proponent, Albert A. Brackey. At the close of the evidence the court withdrew from the jury the question of alleged undue- influence, and submitted the case upon the question of mental incapacity only.

— Hon. A. B. Thornell, Judge. Action to foreclose a mortgage. The defendants admitted the note and mortgage, but interposed a counterclaim for damages for false representations. There was a trial to the court and a decree for plaintiff for the full ■ amount of his mortgage and dismissing the counterclaim. The defendants have appealed.

— Hon. Z. A. Church, Judge. Action aided by an attachment to recover an amount due from defendants as rent, evidenced by two promissory notes, one of which had not by its face matured at the time action was brought. The defendants admitted the execution of the notes, but denied that any amount was due thereon when action was brought, alleging the first notes had been paid in labor performed for and grain and hay sold to the plaintiff.

<p>Actions: change of venue. A railway company is not a resident of a city through which it passes in such sense as to preclude it from exercising the right to a change of venue from the superior to the district court.</p>

<p>Appeal from Pottaivattamie District Court. — Hon. E. B. Woodruee, Judge.</p> <p>Suit in equity to set aside a land contract. 'Judgment for tbe plaintiff. The defendants appeal.</p>

<p>Appeal from, Buena Vista District Court. — Hon. D. F. Coyle, Judge.</p> <p>The opinion sufficiently states the case.</p>

— Hon. F. M. Powers, Judge. Application for modification of a decree of divorce regarding the custody of a minor child. The trial court granted the relief asked, and defendant appeals.

<p>Appeal from Carroll District Court. — Hon. Z. A. Church, Judge.</p> <p>Controversy over the final report of administrators. The objections filed thereto were overruled by the trial court, and the objectors have appealed.</p>

<p>1 Wills: SPECIFIC devises: exemption from liability for debts. A devise to the widow of a testator of an undivided part of all his property, described as real, personal and mixed, is not a specific devise or bequest, and the widow can not therefore invoke the rule exacting the exoneration of specifically devised realty from .the lien of testator’s debts by resorting to other property.</p> <p>2 Same: payment of debts : equitable application of real estate. In the absence of a statute or provisions of the will directing otherwise a decedent’s property should be applied to the payment of his debts in the following order: First, the unexempted personalty, except specific bequests; second, the realty appropriated by the will for their payment; third, the real estate descended; fourth, real estate specifically devised.</p> <p>Under this equitable rule the real property going to the heirs in this case should be applied to the payment of a mortgage covering the devised real estate before resorting to the realty devised to the widow.</p>

<p>Appeal from Clay District Court. — Hon. A. D. Bailie, Judge.</p>

— IIon. D. E. Coyle, J udge. Plaintiee appealed to the district court from the action of the board of supervisors in assessing her land for the benefits resulting thereto from the making of a drainage improvement. There was a motion to dismiss such appeal on the ground that plaintiff had failed to file a petition as required by section 13, chapter 118, of the Taws of the 33d General Assembly.

<p>Appeal from Webster District Court. — Hon. C. Gr. Lee,, Judge.</p> <p>The opinion states the nature of the action and the material facts.</p>

<p>Certiorari from Wapello District Court. — Hon. O. W. Vermilion, Judge.</p> <p>The opinion states the facts.</p>

— Hon. A. B. Ti-iornell, J udge. Action for damages to crops resulting from a flood. •The claim of the plaintiff was that the flood was caused by the diversion of water by the act of the defendant company. Such alleged act consisted in cutting the banks of one ditch, and thereby diverting the water from one culvert to another. There was a trial to a .jury and a verdict for the defendant. Upon motion of the plaintiff, a new trial was granted, and the defendant appeals.

— Hon. E. B. Woodruff, Judge. Action on promissory notes and an overdraft aided by writ of attachment. Defendant admitted the indebtedness, and the only issues tried were raised by the counterclaim. Damages having been allowed thereon, plaintiff appeals.

— Hon. E. B. Woodrupp, Judge. Suit on a promissory note. There was a directed verdict for the plaintiff and judgment thereon. The defendant appeals.

— Hon. W. B. Green, Judge. Action for damages resulting to plaintiff by reason of an excavation in a street. There was a trial to a jury and a verdict for the defendant. Upon motion of plaintiff, a new trial was granted. Defendant appeals.

— Hon. A. B. Tiiornell, J udge. From the action of the defendant Board of Supervisors in establishing a drainage district and providing for the construction of a ditch therein, the cost to be assessed upon the lands included within such district, the plaintiffs who had objected before the board to the establishment of such drainage district appealed to the district court from its action..

— Hon. Robert Bonson, Judge. Defendant was indicted for tbe grime of murder in the first degree. Hpon trial to a jury he was convicted of the offense charged, and his punishment was imprisonment for life in the state penitentiary. He appeals.

— IIon. C. Gr. Lee, Judge. Suit to recover the value of property destroyed by collision with one of defendant’s trains. Verdict and judgment for the plaintiff. The defendant appeals.

— Hon. W. N. Treichler, Judge. The nature of the case and the material facts shown-by the record are stated in the opinion.

— IIon. F. M. Powers, Judge. Defendants were accused of the violation of an ordinance of the plaintiff town, in that without a license they carried on a transient mercantile business in the. said town. The trial court directed a verdict for defendants, and plaintiff appeals.

— Hon. W. N. Treichler, Judge. . Action for damages consequent on delay in delivery of a telegram resulted in judgment, from which defendant appeals.

<p>Appeal from Linn District Court. — Hon. Milo P. Smith, Judge.</p> <p>The defendant was convicted of the crime of burglary and sentenced to the penitentiary for life. He appeals from an order denying him a transcript of the shorthand notes at the expense of the county.</p>

<p>Appeal from Cedar Rapids Superior Court. — TIon. O. B. Bobbins, Judge.</p> <p>Action iu equity to reform the stipulations of a written contract of lease and for recovery of money alleged to have been overpaid as rent. Decree for plaintiff, and defendant appeals.</p>

— Hon. W. R. Green, Judge. This is an action for double damages for the killing of stock upon defendant’s right of way. There was a verdict for plaintiff, and defendant has appealed.

— Hon. M. P. Smith, J udge: Action at law to recover damages for personal injuries received by plaintiff, caused by his horse being frightened at a boulder which was allowed to remain in one of defendant’s streets.

<p>1 Intoxicating liquors: nuisance: injunction: costs. The premises used by one not the owner for the illegal sale of liquor can not be subjected to a lien for the costs of an action to abate a nuisance, unless it is shown that such sales were made with knowledge or consent of the owner.</p> <p>2 Same. The provisions of the Code relating to abatement of liquor nuisances do not contemplate any proceeding in rem, but the action is in personam; so that a description of the premises as defendant in the title of a decree consented to by all defendants except the owner of the premises, who, in his answer, denied knowledge of the illegal use of the premises, did not authorize the establishment of a lien for costs against the premises, in" the absence of proof of his knowledge of any sales.</p> <p>3 Same: appeal: review of judgment for costs. Where the decree in a suit to enjoin a liquor nuisance, entered on an agreement of counsel for all defendants except the owner of the premises, created a lien for costs against the premises without proof of the owner’s knowledge of its illegal use, an objection on appeal to a consideration of the question of costs because not presented to the trial court was not tenable, as the appeal was not from a ruling incidental to a determination of the case but from the decree itself, and was triable de novo; and a motion for new trial was not essential to a review of the judgment.</p>

<p>1 Malicious prosecution: attachment: burden of proof: evidence. An attachment defendant has the burden not only of proving an allegation of his counterclaim that he had not disposed of any part of his property with intent to defraud his creditors, but also, that plaintiff had no reasonable ground for believing his allegation that defendant had so disposed of the same.</p> <p>In this action the evidence is held insufficient to support a verdict awarding defendant exemplary damages.</p> <p>2 Appeal: amended abstract. An amendment to an abstract filed but not served upon the adverse' party will be' stricken on motion.</p>

— Hon. C. B. Bradshaw, Judge. Action by the plaintiff, as landlord, to enforce a landlord’s lien, and to recover of the defendants the value of grain raised upon the leased premises and appropriated by the defendants through purchase from plaintiff’s tenant. The defendants demurred to the petition, and such demurrer was sustained. The plaintiff electing to stand upon his pleading, the trial court entered judgment dismissing the action, and the plaintiff has appealed.

Action by plaintiff as holder of a promissory note against the defendant as blank indorser and guarantor thereof. By his answer the defendant put in issue the allegations of the petition as to his liability as guarantor and as to the sufficiency of notice to hold him as indorser, and he also denied the allegation in an amendment to the petition that he had waived demand, and notice. There was a verdict for the defendant, and from judgment on this verdict plaintiff appeals.

<p>1 Contracts: how made: parol evidence. A contract may be made by correspondence, and except for the statute of frauds may be partly in writing and partly oral; but parol evidence is inadmissible to complete or vary an insufficient writing, although the surrounding circumstances or facts from which the relation of several writings may be inferred can be orally shown.</p> <p>2 Same: preliminary negotiations: when contract is complete: evidence. As a general rule where the parties intend that their correspondence or oral negotiations are but steps leading up to the making of a contract there is no completed contract until final consummation of their negotiations in a formal written agreement.</p> <p>In this action for breach of an alleged contract by correspondence, for the sale of a dental business, the evidence is held to require a submission of the question of whether there was a completed agreement.</p>

— Hon. J.. M. Parker, Judge. Action to recover damages for a personal injury. There was a directed .verdict for the defendant and a judgment thereon. The plaintiff appeals.

— Hon. C. H. Kelley, Judge. Action for damages for personal injuries resulting from an alleged assault by an alleged employee of the defendant while acting within the scope of his employment. There was a trial to a jury and verdict and judgment for plaintiff for $2,000. The defendant appeals.

<p>Intoxicating liquor: illegal sale: statute: constitutionality. The statute prohibiting the sale of malt liquor as a beverage which contains any amount of alcohol, though nonintoxicating, is not unconstitutional, in that it prohibits the sale of a harmless article and the carrying on of a lawful employment.</p>

<p>New trial: newly discovered evidence. To warrant the granting of a new trial on the ground of newly discovered evidence reasonable diligence in endeavoring to discover the same before the trial must be shown.</p> <p>In this action the defendant was negligent in failing to discover evidence of the date at which notice of the sale of mortgaged property was posted and was therefore not entitled to a new trial.</p>

— Hon. Jas. W. Bollinger, Judge. John G. Schricker died testate October 24, 1904. His will was admitted to probate, and, after satisfying Ms debts and paying two legacies of $1 each, either left the remainder of the estate to his wife, Babetta, absolutely, or the use thereof during life, with' the power of alienation annexed. She received the property, and died, possessed of a large part thereof, August 7, 1907.

<p>Appeal from Marshall District Court. — Hon. C. B. Bradshaw, Judge.</p> <p>The opinion states the facts.</p>

<p>Appeal from Jefferson District Court. — Hon. D. M. Anderson, Judge.</p> <p>Suit to recover damages for injury to and loss of personal property. Verdict and judgment for plaintiff, from wbicb tbe defendant appeals.</p>

— Hon. D. F. Coyle, J udge. Action in ejectment for the possession of a strip of land and damages for its wrongful detention. Trial to jury resulted in a judgment as prayed. The defendants appeal.

— IIon. Frank H. Gaynor, Judge. 'Action to abate a uuisauce alleged to have been created within the limits of the plaintiff city by the erection by defendant of a culvert or conduit through which the water of a small stream is required to pass, with the result, due to the insufficient size of said culvert or conduit, that at times of high water the streets have been and will in the future be flooded, to the injury of abutting property owners and to the injury of the city…

— Hon. O. B. Bobbins, Judge. In June, 1908, the plaintiff lived in Bussia, and her brother, Isaac Zabron, lived in Cedar Bapids, Iowa. The brother, desiring to have the plaintiff come to Cedar Bap-ids to live, went to the defendant’s agent in Cedar Bapids to provide for her passage to Cedar Bapids. The agent told him that the price of a prepaid third-class ticket from the port of Libau, Bussia, to Cedar Bapids was $56.05. The brother had only $50 in cash at the time.

<p>. Appeal from Franl&bm District Court. — IIon. E. M. Wright, Judge.</p> <p>Action to recover damages for tbe alleged loss of plaintiff’s sbeep wbile in the possession of the defendant > as a common carrier. Verdict and judgment for plaintiff and defendant appeals.</p>

<p>Gifts: POSTPONEMENT OF ENJOYMENT: TRUSTS: ESTABLISHMENT OF same. A gift, although delivered to a third person as agent or trustee for the use of the donee under circumstances indicating that the donor relinquished all control over the property and intended to vest title in the donee, is as effective as actual delivery to the donee; and the fact that it is not to be delivered to the donee until after the death of the donor does not affect its validity.</p> <p>In this action the donor deposited money in bank taking a certificate of deposit payable to herself and in the event of her death to the intervener in the action for intervener’s own use, the interest thereon, however, being payable to the donor during her life. Held, that a valid gift of the principal sum was thereby created of which the donee could not be divested; and the trust character of the fund having been established the beneficiary was entitled to follow the same into whatsoever property it .may have been invested, and to have a lien established thereon for the amount.</p>

!Appeal from Polk District Court. — IIon. Hugh Brennan, Judge. Suit to recover for' services as attorneys for the defendant’s wife. A demurrer to the petition was sustained, and the plaintiff appeals.

— Hon. Chas. E. Albrook, Judge. Action at law to recover damages for the death of Malcolm H. Gillott, due to defendants’ failure to guard a dangerous piece of machinery upon which there were exposed set screws revolving with a heavy shaft. Trial to a jury. Verdict and judgment for plaintiff in the sum of $4,000. Defendants appeal.

— Hon. James D. Gamble, Judge. ■ Action to recover damages for the loss of plaintiff’s horse as the result of an accident at a highway crossing in which an electric car with two freight cars and a caboose attached thereto came into contact with said horse through the alleged negligence of defendant’s motorman in charge of the electric car in failing to sound the whistle and ring the bell on said car, as required by law, on approaching said crossing, and his failure to give…

— Hon. H. M. Townee, Judge. Defendant was indicted, tried, and convicted of the crime of cheating by false pretenses, and from the judgment imposed appeals.

— Hon. Wm. Hutchinson, Judge. 'Action at law to recover damages for failure to perform contract for sale of corn. Judgment for plaintiff, and defendants appeal.

— Hon. ’ C. G. Lee, Judge. Action in equity to enjoin the interference by defendant- with tbe erection of a fence along the alleged east line of plaintiff’s depot grounds where they adjoin the premises of the defendant, and to quiet the title of the plaintiff in its depot grounds. There was an answer and cross-bill. Decree for defendant, and plaintiff appeals.

<p>1 Admission of evidence: nonpre judicial, error. The erroneous admission in evidence of books of account where the matter so far as material is covered by other competent evidence is not prejudicial error.</p> <p>2 Landlord and tenant: instruction. In an action for rent an instruction that plaintiff could not recover without showing that he rented the premises to defendant, sufficiently covered defendant’s claim that he was a subtenant of the plaintiff, in the absence of a request for a more specific instruction on the subject.</p> <p>3 Same: illegal use op premises: instruction. To defeat an action for rent on the ground that the premises were used for an illegal purpose it must appear that the landlord participated to some degree in the wrongful purpose and intent that the property should be so used, mere indifference on his part as to the intended use is not sufficient.</p> <p>4 Same: evidence. The evidence in this action for rent is held sufficient to justify a finding that defendant was plaintiff’s tenant rather than his subtenant, and that plaintiff did not lease the premises for an illegal purpose.</p>

<p>1 Criminal law: practice of medicine without license: indictment: duplicity. The several acts described as constituting the offense of practicing medicine without a license are enumerated disjunctively in the statute and are not necessarily inconsistent with each other, and may be alleged conjunctively in an indictment without duplicity.</p> <p>2 Same: description of offense. An indictment for practicing medicine without a license which is in substantial conformity with the language of the statute and so individuates the offense that the accused is apprised of the crime charged is sufficient without specifically detailing the particular things done.</p> <p>3 Same: arraignment: waiver. Where the record is silent concerning the arraignment of a defendant but discloses that he proceeded to trial without objection on that ground it will be presumed that there was an arraignment or a waiver thereof.</p> <p>4 Same: failure to plead. Where a defendant has had ample time to prepare his defense and the trial has proceeded as though he had pleaded not guilty, he can not take advantage of his omission to plead.</p> <p>5 Same: statutory regulation. The state may determine what acts constitute practice as a physician and may impose conditions on the extent of that privilege and the statute providing that one practicing as a physician shall possess some knowledge of the nature of disease, its origin, etc., and of the preparation and action of drugs is not an unreasonable exercise of legislative power.</p> <p>6 Same: practicing physician. One who advertises himself as undertaking to heal by manipulating the spinal column of the patient, known as the chiropractic system, is a physician within the contemplation of the statute defining who shall be deemed practicing physicians.</p>

!Appeal from Woodbury District Court. — Hon. John P. Oliver, Judge. Action for damages for tbe alleged conversion of a stock of goods belonging to plaintiff. There was a verdict and judgment for the plaintiff, and defendant appeals.

— Hon. C. W. Vermilion, Judge. Action in equity for a decree rescinding a conveyance of land to plaintiff in exchange for a stock of hardware transferred by plaintiff to defendant, which had subsequently been disposed of by the defendant. There was a tender in the petition of a reconveyance to defendant of the land and return of the money consideration received by plaintiff in trade; and plaintiff asked that he be awarded by way of damages the value of the hardware stock.

<p>1 Attachment: dower: priority of liens. An attachment levied against a husband’s real estate during his lifetime but not confirmed by judgment or sale prior to his death is not a lien paramount to his widow’s distributive share in such real estate.</p> <p>2 Same: widow’s allowance for support. A widow’s statutory right to the payment of her allowance for support .out of the lands of her deceased husband if necessary is not subject to the lien of an attachment against her husband alone, levied in his lifetime but undetermined at his death.</p>

<p>Intoxicating liquors: injunction : costs. An injunction restraining the maintenance of a liquor nuisance may properly be denied where it appears that the defendant has in good faith abandoned unlawful sales; but where after suit was commenced defendant continued to sell without complying with the law costs of the action should have been taxed against him, including the statutory attorney fees.</p>

— Hon. J. J. Clark, Judge. The defendant is the executor of the estate of William Bremer. The plaintiff filed a claim against the estate for damages in the sum of $8,000 for breach of an alleged contract. The defendant, executor, disapproved the claim, and the same was brought on for trial. The trial was had before the court without a jury. The plaintiff’s claim was dismissed at his cost and he has appealed.

'Appeal from Story District Court. — Hon. C. E. Albrook, Judge. William Randau died testate March 27, 1892, leaving seventy-one and five tenths acres of land. Subsequently his widow married John Born. She died July 27, 1909. A suit in partition was begun February 17, .1910, by persons claiming under the will of William Randau. To this petition John Born demurred on the ground that to the widow was devised the fee, and therefore her heirs were entitled to the property.

<p>Appeal from Jasper District Court. — Hon. W. Gr. Clements, Judge.</p> <p>Suit in equity to restrain defendant Neel from conducting an alleged liquor nuisance. The owner of the building was made a party defendant and the premises upon which the alleged nuisance was alleged to exist was also joined as a defendant. A temporary writ of injunction issued early in July of the year .1909, but the case was not heard on its merits until March of the year 1910, when, after hearing the testimony, plaintiff’s petition was dismissed, and the costs were taxed to Jasper county. Plaintiff appeals.</p>

<p>’Appeal from, Polk District Court. — IIon. .Hugh Brennan, Judge.</p> <p>Action for damages resulting in judgment against defendant from which it appeals.</p>

— Hon. B. W. Preston, Judge. Action in equity to restrain the defendant from opening a culvert or drain across its right of way. Decree as prayed, and defendant appeals.

— Hon. H. E. Wilcockson, Judge. Appeal from an order of tbe district court sitting as a court of probate, authorizing the sale of certain real estate owned by David Mullinnix, deceased, for the payment of debts and charges against his estate.'

<p>Appeal from, Folk District Court. — Hon. Hugh Brennan, Judge.</p> <p>Action for damages .for libel. At.the close of plaintiff’s evidence there was a directed yerdict for the defendant. Plaintiff appeals.</p>

<p>Appeal from Monroe District Court. — Hon. C. W. Vermilion, Judge.</p> <p>Action at law to recover damages for personal injury. There was a directed verdict and judgment for defendant, and plaintiff appeals.</p>

— Hon. K. P. Howell, Judge. Injunction suit to restrain the defendant from erecting and maintaining buildings upon a certain strip of land. There was a decree for the plaintiff, and defendant appeals.

— Hon. M. A. Roberts, Judge. Decree foreclosing mortgage was entered on service by publication, and thereafter an order for retrial was entered. The second count of the jietition subsequently was dismissed without prejudice and on hearing the original decree based on the first count of the petition was confirmed. The defendants appeal.

<p>Appeal from Delaware District Court. — Hon. O. E. Ransier, Judge.</p> <p>The opinion, states the case.</p>

— Hon. C. H. Kelley, Judge. The defendants are parents of plaintiff’s former husband, and in this action judgment for damages alleged to have been caused by the alienation of his affections was entered against them. They appeal.

— Hon'. M. A. [Roberts, Judge. Certain proceediugs -were had iu the matter of the estate of W. G. Clark, deceased. Separate proceedings were instituted by complaining parties against the executors’ and against certain trustee's named in the will. : These proceedings were consolidated for trial. From the finding and order made by the trial court, the executors and trustees have appealed.

— IIon. W. N. Treichler, Judge. These actions were brought separately in the court below, but were consolidated for the purpose of trial. The first was brought1 to restrain defendant Morse from acting as pastor of plaintiff, from using and occupying the property of the church, including the parsonage, and for other relief.

<p>i Witnesses: objection to qualification: review on appeal. Objection to the qualification of witnesses to testify to the reputation of a party to an action can' not be raised for the first time on appeal.</p> <p>2 Same: weight of evidence. The fact that a witness testifying to the reputation and character of one accused of crime does not base his evidence on any direct knowledge of circumstances or incidents goes merely to the weight of his evidence.</p>

<p>i Criminal law: rape: declarations of prosecutrix: admissibility, On a prosecution for assault with intent to rape declarations, of the prosecutrix concerning details of the aifair are not admissible as evidence of complaint, but if the declarations were made so soon after the transaction and under such circumstances that they clearly appear to be spontaneous and unpremeditated then evidence of the details of the transaction may be admissible as res gestae.</p> <p>2 Same: instruction: included offense. Where evidence in a prosecution for assault with intent to commit rape disclosed no other intent than that involved in the attempted rape, it was not error to refuse an instruction concerning assault with intent to do great bodily injury as an included offense.</p>

— Hon. J. M. Parker, ’ Judge. Action to recover for extra time or extra services claimed to bave been rendered defendant, while in its employ as manager. Claim was also máde for some other items, to which reference will be made during the course of the opinion. Defendant denied plaintiff’s claims, and pleaded full payment'and settlement for all services rendered. Other defenses were also interposed which, insofar as material, will be mentioned as we proceed.

<p>Appeal from Marshall District Qouri. — Hon. O. B. Bradshaw, Judge.</p> <p>Action in equity to abate a nuisance. There was a decree for plaintiffs, and defendants appeal.</p>

— Hon. W. R. Green, Judge. Action in equity to enjoin the defendant from obstructing an alleged right of way. A demurrer to the petition was sustained, and, plaintiff electing to stand on his pleading, judgment was entered against him for costs. Plaintiff appeals.

— Hon. F. M. Powers, Judge. On a complaint of Rosa Pithan, filed in the lower court charging defendant with being the father of her bastard child, the defendant was found guilty, and was ordered to pay to complainant $100 per annum for the support of such child. . From this judgment the defendant appeals.

— How. W. R. Green, Judge. 'Action to quiet title to certain described premises to which plaintiffs claim to hold the legal title as heirs of John P. Williams and Hannah O. Williams, his wife, both deceased. J. C. Spangler, administrator of the estate of Hannah O. Williams, who survived her husband, is also a party plaintiff.

— Hon. Lawrence De Graee, Judge. Indictment for murder in the first degree. Trial to a jury, verdict of guilty, and judgment of imprisonment for life. Defendant appeals.

<p>i Quieting title: preliminary injunction:' relief: appeal. Where a preliminary injunction in an action to quiet title and enjoin a conspiracy to assert and take possession of plaintiff’s land was not granted, but defendant remained in possession until final determination of the case, he could not raise the objection on appeal that plaintiff was not entitled to a temporary injunction because of an adequate remedy at law, and because the right of possession can not be adjudicated on a showing for a preliminary hearing.</p> <p>2 Same: injunction: writ of possession. The court in an action to quiet title may enjoin the defendant from conspiring to interfere with plaintiff’s possession and may grant a writ of possession where it has determined that plaintiff has title and a right to the property.</p> <p>3 Same: nature of action : jurisdiction: location of property. An action to quiet title and to restrain an interference with plaintiff’s possession is in personam and it is not material that the land is located in another state.</p> <p>4 Landlord and tenant: rights of tenant. A tenant holding over after the expiration of his lease acquires no' rights adverse to his landlord, who obtained title to the property by adverse possession.</p>

<p>1 Conveyances: parol understanding: effect. The effect of an unconditional conveyance by an heir to his mother can not be neutralized or destroyed by an oral understanding that the same was for the grantee’s use and would eventually come back to the family estate and be divided among the children.</p> <p>2 Same: consideration. A gift of land by an heir to his parent when completed by the execution and delivery of a conveyance can not be repudiated because no actual consideration passed.</p> <p>3 Same: conveyance by husband alone: extinguishment of dower. The dower right of a wife in the lands of her husband is a right in and to the physical property, of which she can not be 'legally divested for the purpose of giving effect to a deed executed by her husband alone. Therefore a court has no jurisdiction to fix a value upon her dower interest and decree that upon a deposit of the amount to be paid to her in case she survives her husband, and in case she dies first to be returned to the husband’s grantee shall free the land of her inchoate claim of dower.</p>

— Iíon. C. B. Bradshaw, Judge. This action involves tbe question of tbe basis of computation of the collateral inheritance tax due the state of Iowa upon the estate of Philip G. Wieting, a resident and citizen of New York. The deceased died testate in the state of New York February 15, 1906, leaving no direct heirs, but leaving a widow who is the executrix of his will, and as such is the plaintiff herein. The testator left property both in New York and in Iowa.

<p>1 Constitutional law: due process: notice. Where a party has been given notice of the commencement of an action against him the constitutional requirement of due process has been satisfied, and unless otherwise provided by statute he will be regarded as in court at each successive stage of the case and until its final disposition.</p> <p>2 Contempt: Certiorari: notice. Certiorari is a method by which the higher court undertakes to review certain errors and to affirm or amend the orders, rulings or judgments of the lower court, and is not a new and independent proceeding of which one charged with contempt is entitled to further notice in order to confer jurisdiction.</p> <p>3 Constitutional law: contempt: Certiorari. The court has power to proceed summarily, without formal indictment or a jury, to hear and determine charges of contempt and to inflict punishment; and as the right to a review of such proceedings by certiorari or appeal is purely statutory, the withholding of such a review works no denial of any constitutional guaranty.</p> <p>4 Same: due process. The statute authorizing a review of contempt proceedings by certiorari contemplates such a review, whether the accused has been convicted or acquitted, in all cases where a substantial right either public or private is involved which can only be protected by such a proceeding; and the statute is not invalid because denying to an accused equal protection of the law, or that his property rights have been invaded thereby without due process.</p> <p>S 'Same: former jeopardy. Contempt is not a crime although proceedings for its punishment are spoken of a quasi criminal, and therefore the constitutional provision respecting former jeopardy is not applicable.</p>

<p>1 Intoxicating liquors: use of more than one room. The business of conducting a mulct saloon can not be carried on in two separate rooms, although one is used for the purpose of storage while sales are made exclusively from the other; but where a dealer was simply moving his stock from one location to another, in the ordinary course of the lawful transfer of his business to a new location, he was not violating the law prohibiting the conducting of a saloon ,in more than one room, by reason of the fact that removal of his entire stock wqs not simultaneous.</p> <p>2 Samé: more than one entrance. A trap door in the floor of a room used for the sale of intoxicating liquors, which is securely and permanently closed and fastened and used for no purpose in connection with the business,, is not a second entrance or exit to the room, within the meaning of the statute.</p> <p>3 Same: listing of employees. A person employed in but a single instance in transporting liquor to a mulct saloon for lawful sale is not an employee required by the statute to be listed with the county auditor.</p>

F. M. Powers, Judge. Action at law to recover damages - for failure to deliver a death message. Trial to a jury, verdict and judgment for plaintiff in the sum of $745, and defendant appeals.

<p>Appeal from Jones District Gourt. — Hon. E. O. Ellison, Judge.</p> <p>The accused .was convicted -of murder in tbe second degree, and appeals.</p>

— Hon. H. E. Evans, Judge. Action upon two promissory notes executed by the Arispe Mercantile Company to Burr Forbes & Son. The notes were also signed by Burr Forbes, president, and Frank Forbes, secretary. They also purport to have been indorsed in blank “Burr Forbes & Son.” Plaintiff brought action upon the first of these notes, alleging that they were indorsed and delivered to it by Burr Forbes & Son. This was denied by Burr Forbes & Son.

<p>1 Master and servant: personal injury: instruction. Allegations that the place where plaintiff was directed to work was unusually and extraordinarily dangerous, and describing the dangerous condition of the bank which he was assisting in excavating so as to clearly assert an unusual condition, supported by evidence that after each blast the bank was left rough and uneven with protruding pieces of earth which were ordinarily removed by other ■employees, but that the mass of earth which fell and injured plaintiff had not yielded to their efforts and was left hanging contrary to custom, authorized an instruction that unless the hanging earth presented an unusual condition plaintiff could not recover.</p> <p>2 Same: safe place to work: duty to warn. Where there is evidence justifying a finding that one employee had full charge of the work with authority to direct others what work to do and when and where to do it, an instruction that if he directed plaintiff to work in the presence of a danger apparent to him, or by the exercise of reasonable prudence should have been known to him, of which plaintiff was ignorant, his failure to warn plaintiff of the danger was negligence of the master, was proper; his authority to direct the work not being merely incidental to details which the master might delegate.</p> <p>3 Same. . In this action plaintiff with others was engaged in loading clay from a bank onto cars, and a coemployee had been assigned the duty of warning those at work in the pit of danger from falling pieces of clay from the bank; and it is held that the service of the employee whose duty it was to give warning was connected with and essential to carrying on the work, and the master was not bound to continue his supervision of the men engaged in actually loading the clay, as to danger incident to the ordinary conduct of the work, and was not liable for failure to give plaintiff notice of the danger from falling earth.</p> <p>Weaver, J., dissenting.</p>

<p>1 Negotiable instruments: accommodation notes: fraud: evidence. ’In this action fo'r an accounting and equitable relief in the form of a judgment upon certain promissory notes, the evidence is reviewed and held to show that the notes executed to a bank were for the accommodation of the bank and its officers.</p> <p>2 Same: assignments: bona fide holder: recovery. An'assignee of notes made for the accommodation of a bank, and assigned by it for the benefit of former owners of the bank, is not a holder in due course and can not recover thereon if the bank itself could not have done so.</p> <p>3 Judgments: conformity to issues. Where one party to a suit makes no claim to a contract beneficial to a third party, and the other party seeking its recovery shows no right to its possession, a judgment entirely ignoring the matter was proper.</p> <p>4 Same: cancellation of instruments. The dismissal of an action upon past due notes, made for the accommodation of plaintiff’s assignor, is in fact a judgment for their cancellation; and the makers can not complain that the decree does not order their delivery for cancellation and enjoin a transfer of the same.</p>

•Appeal from Carroll District Court. — Hon. F. M. Powers, Judge. Action to recover back the purchase price paid for stock in the defendant company. The claim is based upon an alleged rescission of the contract of purchase on the ground of false representations. At the close of the evidence, there was a directed verdict for the defendant, and the plaintiff has appealed.

— Hon. E. B. Woodruee, Judge. Action to reform insurance policy and for judgment thereon. On hearing, the petition was dismissed, and plaintiff appeals

<p>1 Benefit insurance: beneficiary's interest. The beneficiary in a policy of life insurance acquires no vested interest therein during the life of the insured, but upon his death the party entitled to the benefits acquires such an interest.</p> <p>2 Same: change of beneficiary: estoppel. An insurance association may stipulate the method and conditions under which a substitution of beneficiaries may be made, which, as a general rule, must be complied with to effect a substitution; but there are exceptions to this rule, as in cases of waiver or estoppel on the part of the association, or where literal compliance with the regulation is beyond the power of the member, or where the member has done all in his power to effect a change but dies before the new certificate issues, in which case a court of equity will treat the certificate as having'issued.</p> <p>In this action the insured did all that was required of him to effect a change of beneficiary except to surrender the original certificate, which the original beneficiary held and refused to deliver, and the association was notified of all these facts. The association admitted liability 'to some one, asked that all parties be brought into court that such a decree be entered as would fully protect it from double liability.</p> <p>Held, that as the controversy was solely between the claimants of the fund and as the original beneficiary had refused to surrender the original certificate she was in no position to claim that a substitution had not been effected.</p>

<p>Appeal from Polls Dsirict Court. — Hon. Hugh Brennan, Judge.</p> <p>The petition alleged that plaintiff became a member of the defendant association June 10, 1908, and that on August 27th following be met with an accident causing the total loss of sight in his right eye, and total disability to pursue his usual and ordinary avocation. He prayed for judgment in the sum of $2,000; being $1,250 as indemnity for loss of eye, and $750 for loss of time.</p> <p>The defendant moved that the cause be transferred to the law side of the calendar, and filed its answer putting in issue the allegations of the petition other than that of membership. Certain defenses at law not necessarily to be enumerated and attached were the articles of incorporation and by-laws of the defendant. The plaintiff then amended the petition by alleging that the articles of incorporation provided for the establishment of a reserve fund from the annual dues over and above the amount necessary to pay the expenses of the association, to be used for no purpose other than taking care of benefit and indemnity claims against the association, and that in addition thereto the association made quarterly assessments of $2 per member, but any assessment might be reduced or even passed by the board of directors when funds derived therefrom were not needed for the purposes mentioned or might be increased; that the proceeds of such assessment, were kept in a separate fund for the payment of benefit and indemnity claims only; that the proceeds from quarterly assessments and the reserve fund had always been sufficient out of which to pay such claims, and the defendant association then had on hand a sum of money available for payment thereof largely in excess of the claims now made by plaintiff, and an assessment on the members would produce an amount largely in excess of said claims; that the association was authorized to pay claims from the funds mentioned without an assessment, and the articles and bylaws were made a part of the petition as amended. Thereupon the motion to transfer to the equity side of the calendar was overruled, and from this order defendant appeals. — Affirmed.</p>

— Hon. Chas. E. Albrook, Judge. Action to recover damages accruing to the estate of Burdette W. Neal as the result of his death alleged to have been occasioned by the negligence of the defendant while deceased in defendant’s employ was working in a clay pit. There was a verdict for the plaintiff, and from judgment on such verdict the defendant appeals.-

<p>1 Deeds: delivery. The recital of a consideration in a deed and a recording of the instrument raises a presumption of delivery.</p> <p>2 Same. The fact that a deed from a husband to his wife was on record for several years prior to the husband’s death is strong evidence of delivery and acceptance by the wife during the husband’s lifetime.</p> <p>3 Possession of real property: presumption. Where, as in this case, a husband conveyed the homestead to his wife, a presumption that the possession was in her obtains, even though he conducted the farming operations and paid the taxes.</p>

<p>Appeal from Allamakee District Court. — Hon. L. E. Eeldows, Judge.</p> <p>The defendant was convicted of the crime of procuring intoxicating liquor for a person who was in the habit of becoming intoxicated. He appeals.</p>

James' A. Howe, Judge. Action for damages, resulting in a verdict for plaintiff. Upon his motion a new trial was ordered. Defendants appeal.

— -Hon. P. M. Powers, Judge. ' Action to recover compensation for medical services rendered by plaintiff to defendant in tbe delivery of defendant’s wife during child labor and subsequent surgical treatment for resulting injuries. There was a counterclaim of damages for malpractice. The jury returned a verdict for defendant for $459, and from judgment on such verdict plaintiff appeals.

<p>• Appeal from Harrison District Court. — Hon. W. R. Green, Judge.</p> <p>Action for an ’ accounting between plaintiff and defendant in relation to their partnership business as agents for the sale of real estate. There was a decree that plaintiff recover from defendant the sum of $1,149.86, and defendant appeals.</p>

— Hots. O. E. Albrook, Judge. Action in equity to enjoin the construction and maintenance of a ditch. There was a decree as prayed, and defendants appeal.

— Hon. Z. A. Church, J udge. Action at law to recover remainder alleged to be due upon contract for labor and service in the construction of a ditch. There was a verdict and judgment for plaintiff, and defendants appeal.

<p>Appeal from Fremont District Court. — Hon. C. D. Wheeler, Judge.</p> <p>Action on breach of warranty resulted in judgment against defendant, from which he appeals.</p>