Volume 152 — Iowa Reports

<p>■Appeal from Polh District Court. — How. Hugh Brennan, Judge.</p> <p>Action for damages for alleged false representations in tbe sale of a. relinquishment of a homestead entry in South Dakota.. There was a trial to a jury, and a verdict for the defendants. From a judgment entered thereon, the</p> <p>plaintiff has appealed.</p>

<p>Criminal law: adultery: evidence. Although inclination and op-1 portunity are not alone sufficient to establish the crime of adultery, still it may be shown by proof of circumstances which lead a reasonable man to believe the crime to have been committed.</p> <p>Same: instructions. Where the evidence of adultery tends to nega2 tive any possibility of involuntary intercourse an instruction that to warrant conviction the same must have been voluntary is unnecessary and would be without support in the evidence.</p> <p>Same: evidence: subsequent conduct. Subsequent relation of 3 the parties may be shown as tending to corroborate other evidence of the crime of adultery, if such relation appears to have been part of a continuous course of illicit conduct.</p> <p>Same: institution of prosecution: evidence. Under the evidence 4 the question of whether the wife of one of defendants instituted the prosecution -was for the jury.</p> <p>Same: dismissal of cause. The fact that a wife instituting a 5 prosecution for adultery subsequently relents is not ground for dismissal of the case.</p> <p>Same: evidence: privileged communications. One not a party 6 to a communication is not entitled to raise the question of privilege. And testimony of a county attorney to the fact of the filing of an information by the wife charging her husband with adultery is not of a privileged nature.</p> <p>Misconduct in argument. Where a county attorney is prevented 7 on defendant’s objection from going into matters not pertinent to the case his attempt to do so is harmless.</p> <p>Same: discretion of court. Whether there has been a presenta8 tion of points in the closing argument for the state not sufficiently referred to in the opening argument, or in that of counsel for defendant, is largely a matter for the court in its discretion to determine; and unless a clear abuse of such discretion is shown its ruling will not be disturbed on appeal.</p> <p>Misconduct in argument. Misconduct in argument on the part of a g prosecuting attorney, without erroneous ruling by the court, will not in itself constitute reversible error, unless it amounts to a wholly improper consideration likely to influence the jury.</p> <p>Same. Reference by a prosecuting attorney in argument to religious 10 and fraternal orders when made as an appeal to the sentiment of the jurors is improper; but where the same is not shown to have affected the verdict or to have been made a ground for new-trial the cause will not be reversed on that account.</p>

‘Appeal from Polh District Court. — Hon. W. H. McHenry, Judge. Appeal by the city of Des Moines from an order of the district court reducing certain paving assessments imposed by its city council against the Des Mo'ines City Railway Company. The controversy presented for our consideration includes thirty-three appeals. The decisive question is the same in all, and they aré submitted here by stipulation upon the same record.

— Hon. O. B. Robbins, Judge. Action at law to recover damages for injuries received by plaintiff while working with an unguarded machine known as an universal or combination wood worker. Trial to a jury. Verdict and judgment for defendant, and plaintiff appeals.

<p>Garnishment: intervention :■ judgment. On an issue solely be-1 tween plaintiff and the intervener the court has no authority to enter judgment against a garnishee who has answered to the claim of plaintiff against defendant, and who was not a party to the intervention. The proper entry on a finding favorable to intervener is an order releasing the property from'the levy, or a finding that intervener’s lien is superior to that of plaintiff.</p> <p>Same: action against garnishee: abatement. Where the inter-2 vener in garnishment succeeded in establishing his superior right to the fund and thereafter sued the garnishee for the amount, the pendency of an appeal from the judgmént directing the garnishee to pay the fund to the intervener was not good as a' plea in abatement. of the subsequent action.</p> <p>Same: amendment of judgment: estoppel. Even though a gar-3 nishee may be estopped from objecting to a judgment entered against him, he may still have the right to object to an amendment of that part of the judgment which is void.</p> <p>Appeal: costs. Owing to a failure to observe the rules relating 4 to preparation of briefs, the costs are taxed against appellant.</p>

<p>Appeal from Cedar Rapids Superior Court. — Hon. C. B. Robbins, Judge.</p> <p>Action for damages resulted in judgment against defendant, from which it appeals.</p>

— Hona J. J. Clark, Judge. Suit to recover damages for personal injuries. Verdict and judgment for the plaintiff. The defendant appeals.

— Hon. J. M. Parker, Judge. Action for divorce on the grounds of cruel and inhuman treatment. There was a decree for the plaintiff, with alimony in the sum of $2,000. Defendant appeals.—

— Hon. Milo P. Smith, Judge. Action to recover compensation, for services rendered to defendant at its request; the claim of plaintiff, a married woman, being prosecuted in her own right'and as assignee of her husband. Plaintiff us her husband’s assignee also claimed a sum due to him for shelving sold and delivered to defendant at an agreed price.

<p>Appeal: certification and transcript: time for filing. The cerl tification and.filing of the shorthand notes and transcript within six months from the date of entry of the judgment appealed from is timely.</p> <p>Same: certification of transcript: sufficiency. A transcript cer2 tified to be a full and complete extension of the official report • of a trial and as constituting the official transcript of the testimony, with a copy of the certificate of the judge and reporter attached, from which it appears that the proceedings were taken down in shorthand as required by law and that the same contain a full, true and complete record of all the evidence received and offered, with all objections, motions and rulings thereon, shows that the record of the trial has been properly kept and is a sufficient certification of the transcript.</p> <p>Same: abstract: omitted evidence: remedy. The omission of cer3 tain evidence from the abstract will not require that all be stricken, as the appellee may specifically deny the correctness of the abstract and thus require the appellant to supply the omitted evidence, or he may himself file a supplemental abstract containing the same.</p> <p>Same: presumption as to abstract. In the absence of specific de-‘ 4 nial or correction of an abstract it will Be presumed to contain all the record necessary to enable the appellant court to pass upon every question raised.</p> <p>Negotiable instruments: consideration: fraud: evidence. In this 5 action upon a promissory note given in payment for corporate stock, the evidence is reviewed and held insufficient to show that ■the same was without consideration because obtained upon fraudulent representations concerning the organization of the corporation and the value of its stock.</p>

— Hon. W. H. McHenry, Judge. This is an appeal from an order of the district court in reviewing upon appeal an action of the Board of Review of the City of Des Moines sitting as an assessment tribunal in determining the amount of property of the - Valley Investment Company subject to assessment for the year 1908. The trial court found that the assessment made by the assessor upon the stock of the company to the amount of $8,000 was erroneous, contrary to law, and void.

— How. Hugh Brennan, Judge. Action to recover damages for loss to the estate of James Spevack resulting from his death alleged to have been due to the negligence of defendant company, in whose employment he was engaged at the time of his death as driver in its coal mine. At the conclusion of the evidence introduced on both sides, the court on defendant’s motion directed a verdict in its favor, and from judgment on this verdict the plaintiff appeals.

<p>Appeal from, Pollc District Court. — Hon. James A. Howe, Judge.</p> <p>Action for breach of promise of marriage. Defendant filed a general denial and other defenses and pleas in mitigation, which so far us material will be noticed in the body of the opinion. Trial to a jury. Verdict and judgment for plaintiff and defendant appeals.</p>

— -Hon. C. H. Kelley, Judge. The claim of Howard G. Ogden against the estate of Hattie Day Ogden, deceased, was allowed by the district court, and the administrator appeals.

— Hon. W. H. McHenry, Judge. The defendants Berry sold to the plaintiffs a majority of the shares of capital stock in an insurance corporation known as the Capital Insurance Company, and .doing business at Des Moines, Iowa. The agreed price of this stock was $51,050.

<p>Wills: assignment of interest by devisee: rights affected. An 1 assignment of all remaining rights, title and interest in the estate of the assignor’s testator, which recited that a portion of the estate had been previously distributed, did not operate to pass the assignor’s executory right to receive his share of the property devised to a sister contingent upon her death without issue.</p> <p>Estates of decedents. The property, real and personal, constituting 2 the assets of which a person dies possessed, when collectively considered, is termed his estate; and until legally distributed the several items are said to belong to his estate.</p> <p>Assignment of property: extrinsic evidence. Extrinsic evidence 3 of collateral facts and circumstances is admissible in determining what property passed by assignment; and correspondence of the parties bearing on the question is admissible, which if lost or destroyed may be shown by secondary evidence.</p>

— Hon. James A. IIowe, Judge. Action by plaintiffs, as heirs of Thomas F. Brinsmaid, deceased, to recover on a certificate of insurance. Alice M. Steele filed a petition of intervention, claiming the indemnity stipulated. The defendant denied all liability. On trial judgment was entered dismissing plaintiffs’ petition, and on the issues between intervener and defendant the jury disagreed. The plaintiffs appeal.

— Hon. A. N. Hobson, Judge. This is au appeal from au order of the district court finding that certain statements of consent to the sale of intoxicating liquors in Winneshiek County were insufficient.

— Hon. K. M. Wright, Judge. A jury found that Tbomas Walker was mentally incompetent to make tbe will in question, and the proponents appeal from a judgment on such verdict.

'Appeal from Marshall District Court. — Hon. C. B. Bradshaw, Judge. Suit in equity to set aside and cancel an alleged assessment of plaintiff’s property. The trial court granted the relief prayed, and defendants appeal.

— Hon. Hugh Brennan, J udge. Suit to recover damages for personal injuries. The defendant appeals from a ruling striking its plea of a former adjudication.

'Appeal from Butter District Court. — Hon. J. E. Clyde, Judge. Action in equity for an accounting. Decree for plaintiff, and defendant appeals. The opinion states the material facts.

— Hon. M. C. Matthews, Judge. Action to compel defendants as trustees to report, to remove them, and for the appointment of other trustees in their stead. On hearing, defendants were removed and other trustees appointed. They appeal.

<p>Appeal from Pottawattamie District Court. — Hon. A. B. Thornell, Judge.</p> <p>Proceeding in equity to enjoin the collection of certain taxes. Decree as prayed, and defendants appeal.—</p>

<p>Slander and libel: damages: evidence. Where alleged slanderous 1 utterances relate solely to plaintiff’s business, evidence of subsequent decrease in the business is not permissible, unless it is shown that there was some direct or circumstantial connection between the alleged slander and the dimunition of plaintiff’s business. And where that was the only evidence offered a verdict for plaintiff conclusively demonstrates its prejudicial character.</p> <p>Appeal: sufficiency of pleadings : keview. Where the sufficiency 2 of a petition as stating a cause of action is in no manner raised on the trial or in the printed record the appellate court will not pass upon the question.</p>

<p>Contracts: substantial performance. To recover upon contract i the plaintiff must show substantial compliance therewith; and the rule obtains although such compliance was an impossibility.</p> <p>Same. Substantial performance of a construction contract permits 2 only such omissions or deviations as are inadvertent or unintentional and do not impair the structure as a whole, and may be remedied without tearing down and rebuilding other parts of the structure, or may be compensated without serious injustice by deduction from the contract price.</p> <p>Drainage: contracts: construction: approval and payment of 3 work. The board of supervisors has no power to pass upon the estimates made by the engineer in charge of drainage work, for the purpose - of enabling the contractor to receive partial payments; this can only be done after the work has been completed and the engineer has made his final report approving the entire project: So that a contract by which the county is to finally accept and settle for sections of an improvement as they are completed, without reference to the final completion of the whole project, is without authority in law.</p> <p>Same: Ultra vires provisions: effect. The parties to a drainage 4 construction contract may agree as to who shall stand the loss or damage to the work arising from unforeseen or unavoidable causes; and an agreement by the supervisors that the contractor shall not be liable for damage to completed work is not ultra vires. But even if such provisions were to be regarded as invalid it would not invalidate the entire agreement, where work had been done of manifest benefit to the land drained. The most that the county authorities could insist upon is to have the provisions disregarded.</p> <p>Same: authority of engineer. An agreement in a drainage con-5 tract that the decision of the engineer as to the construction of the contract and the specifications shall be. final, does not authorize him to pass upon the character of the work and completion of the improvement; and his disapproval of the work on the ground that it is not in conformity with the contract will not defeat the contractor’s right of recovery.</p> <p>Same: compliance with contract: acceptance of work: evidence. 6 While drainage work must be completed to the satisfaction of the engineer, still he can not deprive the contractor of his right to compensation through fraud, collusion or failure to act; and any capricious or arbitrary action on his part is sufficient to justify a finding of fraud. In this action the contract provided that the contractor should keep each mile of the ditch in good condition and repair until finally accepted; that each mile should be accepted when completed; that he should not be liable for damage to completed work on account of heavy rains; and that when accepted the ditches should have full dimensions of cross-section and berm as ordered by the engineer, and the sides free from overhanging sods and dirt. Estimates were not made on the mileage basis, nor was the work accepted mile by mile. When tendered for acceptance the main ditch and most of the laterals were not at grade or of the required depth. Held, that the provision for acceptance of the work mile by mile as completed was waived, and when tendered for acceptance as a whole the work was not in substantial compliance with the contract, justifying an adverse report by the engineer and refusal of acceptance by the supervisors.</p> <p>Mandamus: when not available. Mandamus will not lie to cotp7 pel the engineer and supervisors to accept and pay for drainage work unless fraud or want of good faith on their part is shown; mere error in judgment will not support the action. Nor will it lie to enforce contractual rights, as the purpose of the remedy is to enforce the exercise of a legal duty.</p> <p>Same: Quantum meruit. In an action by mandamus to compel pay-8 ment for work performed under contract, as having been done in substantial compliance with the contract, recovery for the value of the work can not be had; but on rehearing this case is remanded to permit plaintiff to try the question of whether he is entitled to any relief, with the right to amend for that purpose.</p>

!'Appeal from Cass District Court.- — TIon. A. B. Thorn ell, Judge.

<p>Appeal from Lirm. District Court. — How. E. O. Ellison, Judge.</p> <p>The defendant appeals from a conviction for larceny.</p>

<p>Appeal from Calhoun District Court. — IIon. P. M. Powers, Judge.</p> <p>In pursuance of a petition for the establishment of a drainage district including lands in Calhoun and -Webster Counties, accompanied by the necessary bonds, commissioners were appointed who named an engineer and reports with plats as required by section 1989-a29 of the Code Supplement were filed. The respective boards of supervisors met, selected the plan recommended, directed notices to be published as required which was done, and each of the appellants filed a claim for damages, Cooper for $5,000, 'Steyen for $3,000, Wells for $4,000, and Ness for $2,500. Thereafter appraisers were duly appointed and filed their report, and the boards of supervisors, after having caused notices to be served fixing the time of hearing, ordered the construction of the ditch according to the plan as finally adopted and fixed the amount of damages to be paid Cooper at $400, Wells at $200, Steyen at $127.50, and Ness at $300. Thereupon each served notice of appeal from such allowance by filing the same with the auditor of Calhoun County, together with a sufficient bond. By agreement, the auditor made but one • transcript of the proceedings, which was duly filed with the auditor.. A motion to dismiss each appeal for that notice thereof and bond were not filed with the auditor of Webster County was sustained, and each appeal dismissed at the cost of appellant. From this order each claimant has appealed to this court.—</p>

<p>Appeal from Pottawattamie District Court. — Hon. O. D. Wheeler, Judge.</p> <p>Action for damages resulted in the dismissal of plaintiff’s petition, from, which it appeals.</p>

<p>Sales: change op possession: statute. The statute providing that i a sale or mortgage of personal property, the actual possession of which is retained by the vendor or mortgagor, shall be invalid as to existing creditors without notice, contemplates that such retained possession shall be real, positive and certain, and not that which is theoretical or constructive only. But this does not require that the property be actually moved from the place in which it was situated at the time of the sale or pledge, especially where the same is stored upon premises not in the possession or control of either of the parties, and is of such a character as to be incapable of delivery in the ordinary sense of passing a thing from one to another, as a large mass of scrap iron located on a railroad right of way. In such a case any act which amounts to symbolical delivery or surrender of control over the property is sufficient delivery of possession.</p> <p>Same: bill of sale: description. A recorded bill of sale given 2 by a pledgee after default of the pledgor, describing the property as eighty-five tons of iron, more or less, now upon railroad land in a certain town and now owned by the vendor and in . his possession at such place, is not so indefinite as to location as to mislead or confuse one examining the record; and mention of the pledgee as owner is not a fatal misdescription.</p>

<p>Appeal from Winneshiek District Court. — Hon. A. N. • Hobson, Judge.</p> <p>The opinion states the case.</p>

<p>Sales: breach of warranty: evidence. In this action for breach 1 of an alleged warranty in the sale of a horse the evidence is held to support a verdict for plaintiff on the ground that the animal was unsound at the time of the sale, and that its subsequent worthless condition resulted from the natural course of the disease existing at that time.</p> <p>Same: warranty: character of representations. To establish 2 a warranty of goods it must appear that the seller made some distinct assertion of quality, other than a mere statement of opinion, which he intended should be and was in fact believed and relied upon by the buyer.</p> <p>Same: failure to deny warranty: evidence. Where the seller 3 of goods makes no denial of an alleged express warranty the buyer need not offer any evidence on the subject; as no issue is presented.</p>

<p>Appeal from Lee District Court. — Hon. Henry Bank, Jr., Judge.</p> <p>The opinion states the case.</p>

— Hon. O. Gr. Lee, Judge. • Action in equity on notes secured by a real estate mortgage. There was a judgment for the administratrix. The plaintiffs appeal.

— -Hon. D. F. Coyle, Judge. Action upon an attachment bond for the wrongful suing out of a writ of attachment. Directed verdict for defendants, and plaintiff appeals.

— Hon. A. D. Bailie, Judge. Suit in equity to quiet title. Judgment quieting title in plaintiff, but ordering him to return a sum of money to the defendants. Both parties appeal. The opinion states the case.

<p>Appeal from Polle District Court. — Hon. Hugh Brennan, Judge.</p> <p>Action in equity to require tbe defendant company to obey an order of tbe Railroad Commissioners of the state. The defendant appeals from a judgment for tbe plaintiff.</p>

— Hon. F. C. Platt, Judge. Upon the death of Edward. G. Irwin, without issue, Iona B. Irwin, his widow, was appointed administratrix of the estate, and on August 20, 1909, filed final report. To this James H. Irwin and Margarete Irwin, parents of decedent, filed objections. These were sustained in part and the administratrix ordered to report accordingly within fifteen days. She appeals.

<p>Actions: change of parties by substitution. One suing in his 1 individual right may amend his petition, where the facts warrant it, and maintain the action in a representative capacity without effecting a substantial change in the cause of action. Under this rule an action brought by a husband for the loss of companionship caused by the wrongful death of his wife may be amended by substituting a third person as administrator and asking damages to her estate.</p> <p>Railroads: trespasser: negligence: evidence. One walking upon 2 a railroad track is a trespasser to whom the company owes no duty until his peril is discovered.</p> <p>In this action the question of whether trainmen, having observed deceased uporí a trestle, could have stopped the train in time to have avoided the accident, was under the evidence for the jury.</p> <p>Same: contributory negligence. It is also held that under the 3 evidence the question of what an ordinary person in deceased’s situation, conscious of an approaching train would, in the exercise of ordinary prudence have done, was for the jury.</p> <p>Same: negligent death of wife: independent occupation: evi4 dence. Ordinarily the services of a wife belong to the husband, and unless she was engaged in a separate occupation her death can not be said to have occasioned loss to her estate. In this action by the administrator for damages on account of the negligent death of the wife, the evidence is held to require a submission of the question of whether she pursued a separate occupation.</p> <p>New trial: misconduct in argument. While impropriety in argu5 ment to a jury which tends to the prejudice of a party will not be upheld, still too great nicety in the choice of language will not be exacted, especially when the remarks are of a responsive character,</p> <p>Evans, J,, dissenting.</p>

— Hon. Frank E. Gaynor, Judge. In an action to enjoin the maintenance by defendant Frank .of a liquor nuisance on premises belonging to defendant Bichardson, with the knowledge of the latter, there was a decree for defendants, and from this decree the plaintiff appeals.

<p>Appeal from Polls District Court. — Hon. James A. IIowe, Judge.</p> <p>Action to recover for labor and material furnished by plaintiff for the construction of a bridge over the Des Moines river. Directed verdict for defendant, and plaintiff appeals.</p>

— Hon. A. B. Thobnell, Judge. Suit in equity to have an absolute conveyance decreed to be a mortgage and for permission to redeem therefrom. The defendant denied that the conveyance was intended as security, and further pleaded that he gave plaintiff a contract to reconvey which was never complied with, and that said contract has expired by limitation. The trial court granted the relief prayed, and, defendant appeals.

<p>Acknowledgment of instruments:, falsity of certificate: plead-i ings. The petition in an action against a notary and his bondsmen for damages because of a false certificate of acknowledgment of an instrument, which alleges that the certificate was false and untrue, that the grantor never appeared before the notary and made acknowledgment,, and 'that the notary knew these facts when he made the certificate, sufficiently alleges the falsity of the certificate of acknowledgment.</p> <p>Same: liability of notary and sureties. A notary who falsely 2 certifies to the acknowledgment of an instrument is liable in damages to the party injured thereby; &nd the act being done in his official capacity the sureties on his bond are also liable.</p> <p>Same: assignment of mortgage: failure to record: effect. The 3 assignee of a mortgage may rely upon the truth and regularity of the certificate of acknowledgment to the mortgage and the sufficiency of the notice imparted by the record of the same; and his failure to record the assignment will not bar his right of action against the notary and his sureties because of a false acknowledgment rendering the record thereof insufficient notice to charge a subsequent purchaser.</p> <p>Same. Where a notary’s certificate of acknowledgment was affixed 4 to a mortgage before it was 'recorded, the fact that the instrument was assigned before the certificate was so affixed will not bar the assignee’s right of action against the notary and his sureties for the falsity of the certificate.</p>

<p>Criminal law: murder: evidence. On this prosecution for murder 1 in the first degree the evidence is reviewed and held sufficient to support a conviction for manslaughter.</p> <p>Same: examination of witnesses: argument: discretion. The 2 scope of cross-examination in a criminal case 'and the argument of counsel are matters largely within the discretion of the trial court, and in the absence of an abuse of that discretion a reversal will not be ordered on these grounds.-</p> <p>Same: evidence: flight. On a prosecution for murder a qualified 3 physician, under a plea of self-defense, may testify that the indications were that the gun with which deceased was shot was held close to the body.</p> <p>Flight of accused may also be shown as a circumstance bearing upon his guilt.</p> <p>Sanie: applicability of instructions. Where there was no evi4 dence tending to contradict the dying declarations of deceased a requested instruction that inconsistent statements might he considered to impeach his dying declarations was properly refused.</p> <p>Same: instructions: weight to be given dying declarations. Fail-5 ure to instruct that a decedent’s intoxicated condition at the time of making dying declarations should be considered in determining the weight to be given the declarations does not relate to a matter so inhering in the question of guilt or innocence as to constitute reversible error, in the absence of a request therefor.</p> <p>Same: instructions: self-defense: assault. Where the instruc6 tions given with reference to self-defense are full and complete the refusal of requested instructions on the subject is proper.</p> <p>Refusal to submit different assaults necessarily involved in a charge of murder is also proper.</p> <p>Same: instructions: dying declarations. The instructions in this 7 case with reference to dying declarations and their consideration by the jury are a correct application of the general rule to the facts of the case.</p>

<p>Appeal from Keokuk District Court. — Hon. K. E. Willcockson, Judge.</p> <p>The defendant was convicted of larceny, and sentenced under the indeterminate sentence statute to imprisonment in the reformatory at Anamosa for a term not exceeding five years. Erom this sentence he appeals.</p>

<p>Criminal law: seduction: corroborating evidence. On a prosecu1 tion for seduction the jury should be instructed that neither acquaintance of the parties, opportunity to commit the crime, nor the birth of an illegitimate child will, alone, constitute such corroboration of the prosecutrix as will justify conviction; and this is especially true respecting the birth of a child.</p> <p>Samé: instruction. An instruction respecting corroboration of a 2 prosecutrix for seduction which is so broad as to permit the jury to consider the birth of a child as a corroborating circumstance, and which enumerates a number of circumstances, some of which are not corroborative, but permits such a finding upon proof of any of the enumerated circumstances, is erroneous.</p> <p>Same: deception: instruction. An instruction permitting a find-3 ing that seduction was accomplished by means of caresses, independent of defendant’s intent to deceive thereby, is erroneous.</p>

<p>Criminal law: rape : alibi : instructions. On this prosecution for rape the evidence of alibi is held insufficient to justify a submission of that defense to the jury, and it is held, that by its submission the defendant and his defense were placed in a false light before the jury.</p> <p>McClain and Deemer, JJ., dissenting.</p>

<p>Appeal from Plymouth District Court. — Hon. Wm. Hutchinson, Judge.</p> <p>Abpeal from an order overruling defendant’s motion to discharge an attachment and release a garnishment had under the attachment.</p>

<p>Trial: defendants severally sued: burden of proof. Tn an action 1 against defendants severally the court in its discretion may allow separate trials or permit the action to proceed against all of them; and if the latter course is adopted it will not relieve the plaintiff from the burden of establishing his cause of action against each.</p> <p>Same: judgment: new trial. Where defendants are severally sued 2 under a contract of employment the court is expressly authorized by statute to render judgment against one or moire on a general verdict, and to grant a new trial to those against whom the evidence is not sufficient to authorize judgment.</p>

— Hon. R. P. Howell, Judge. Action to recover damages for personal injuries. There was a verdict and judgment for the plaintiff, and the defendant appeals.

<p>Criminal law: murder: evidence. On this prosecution for murder 1 the evidence is reviewed and while conflicting is held sufficient to support conviction for murder in the second degree.</p> <p>Same: evidence: right to be confronted with witnesses: consti2 tutional law. The testimony of a witness taken upon the first trial of a cause may be read upon the second trial by the official reporter, as provided by Code Supp., section 245-a, where the witness is beyond the reach of a subpoena; and the same is not in violation of the constitution which accords to all persons in criminal prosecutions the right to be confronted with the witnesses against them.</p> <p>Same: manslaughter: when not an included offense. The crime 3 of murder involves the element of malice, while that element is not essential to the crime of manslaughter, and for that reason the latter is regarded as a distinct crime and not a mere degree of the higher offense, though included therein: So that where the killing of a human being is accomplished by the use of a weapon calculated to produce death the presumption that the act was done in malice arises; and where there is no evidence to rebut this presumption the crime of manslaughter is not involved, and the question of defendant’s guilt of the lesser offense need not be submitted as an included offense.</p> <p>Weaver, J., dissenting.</p>

<p>Appeal: matters not argued: review. Where exception to a rul- • 1 ing is not argued the appellate court will not search and analyze the record in order to discover error.</p> <p>Slander and libel: justification: pleading. A plea in justification 2 of a slander must be as broad as the charge made: So that a plea which fails to admit the use of the words charged, but alleges the use of other and different words and justification for their use, is insufficient. The plea of justification must also allege the truth of the charge rather than a belief in its truth.</p> <p>Same: pleadings. The striking of one division pleading justifica3 tion is harmless error where another like plea is allowed to stand.</p> <p>Trial: special interrogatories: failure to answer: procedure. 4 The objection that interrogatories submitted by the court on its own motion are returned unanswered should be raised by a request that the jury be required to answer them. It is too late to raise the question in a motion for a new trial.</p> <p>Same. A general verdict for plaintiff under proper instruction as 5 to the form of verdict in case of a finding for either of the parties, and the answer 'to a special interrogatory stating the allowance on one of plaintiff’s causes of action, was a sufficient answer to an interrogatory left unanswered, as to what if any thing was allowed defendant on his counterclaim.</p> <p>Same. As a general rule failure of the jury to answer a special 6 interrogatory upon a material fact is to be regarded as a finding against the party having the burden of proof on that issue.</p> <p>New trial: newly discovered evidence. A party is not entitled to 7 a new trial on the ground of newly discovered evidence where he had talked with the witness prior to the trial and knew, or should have known, that his testimony might become material, but made no effort to have him present. And if surprised by the other evidence developed on the trial, rendering material that claimed as newly discovered, he should then have moved a continuance that he might produce such testimony.</p>

— Hon. C. W. Vermillion, Judge. Action to recover damages for tbe death of Clyde Kessler, a child of about two years of age, under circumstances stated in the opinion. There was a verdict and judgment for the plaintiff, and defendant appeals.

— Hon. W. Gr. Clements, Judge. Action in equity to abate a nuisance, and to enjoin the defendant from maintaining a building on certain premises. There was- a judgment giving the plaintiff only a part of the relief she asked, and she appeals.

<p>Appeal from Harrison District Court. — Hon. O. D. Wheeler, Judge.</p> <p>Proceeding for the establishment of a drainage district. The district was established by order of the board of supervisors of Harrison county. Upon appeal to the district court such order was confirmed. Prom the order of the district court, the objectors have appealed.</p>

<p>Taxation: collateral inheritance statute: retroactive effect, i The collateral inheritance statute has no retroactive effect, and is therefore not applicable to rights which had become vested prior to its taking effect. So that real estate which passed to heirs before the act became effective, although they may not have taken possession until afterwards, is not subject to the tax; nor does it apply to personal bequests under a will probated before the passage of the act, although the estate may not have been settled until afterward.</p> <p>Same: transfer of present interest in property: testamentary 2 disposition. A contract in the nature of a conveyance, creating at the time of its execution a vested interest in real property, subject only to a postponement of the right of possession and enjoyment until the death of the grantor, is not a testamentary disposition of the property but is in effect a transfer of a present interest therein; and its character as such is not affected by a condition therein which may subsequently happen, as to the amount of the shares which the grantees may respectively take; and the interests thus acquired are not subject to the collateral inheritance tax.</p> <p>Same: vested remainders. An interest in property created by will 3 or deed in the nature of a remainder becomes vested at the time the instrument takes effect, and is not subject to an inheritance tax under a statute subsequently passed.</p> <p>Deemer, J., dissenting.</p>

— JIon. Henry Bank, Jr., Judge. Suit in equity to enjoin and restrain defendant from constructing and maintaining a dam in an artificial ditch across certain lands owned by the respective parties. The defendant filed a cross-bill, in which he asked an injunction against the plaintiffs, forbidding them from opening or cleaning out the ditch.

<p>Schools: appeal: determination by state superintendent: final-1 ity. Determination by the State Superintendent of Public Instruction on appeal from the action of a school board, concerning a matter exclusively within its jurisdiction, is final and will not be reviewed by the courts.</p> <p>Same: Mandamus. Mandamus will lie to compel a school board to 2 perform the final determination of the State Superintendent, rendered on the appeal of a question of which the school authorities have exclusive jurisdiction, when the board arbitrarily refuses to comply therewith.</p> <p>Same: constitutional law: due process. The enforcement by 3 mandamus of an order of the State Superintendent, made on appeal from a school board, directing the board to furnish transportation for the pupils to other districts, rather than to provide a temporary school within the district, is not a deprivation of property without due process of law.</p>

<p>Appeal from Jasper District Court. — Hon. B. W. Preston, Judge.</p> <p>Ti-ie opinion states the essential facts of the case.</p>

<p>Appeal from Dubuque District Court. — Hon. M. C. Matthews, Judge.</p> <p>Proceeding by mandamus to compel tbe defendant, James R. Pickley, chief of police of the city of Dubuque, to reinstate the plaintiff as a captain on the police force. A demurrer to the petition was overruled, and the defendant, James R. Picldey, electing to stand thereon, judgment was rendered for the plaintiff as prayed. James R. Pickley appeals.</p>

— Hon. John F. Oliver, Judge. Action at law to recover damages for injuries sustained by plaintiff, an employee of defendant, while working about an appliance known as a back-fat machine. Trial to a jury; verdict and judgment for plaintiff in the sum of $1,100. Defendant appeals.

<p>Injunction: recovery of damages upon bond. To authorize recovery 1 on an injunction bond the obligee must show that he suffered damage by reason of the issuance of the writ, or that some lawful or substantial right was interfered with. Thus a railway company, not entitled to the proceeds of a township tax until the trustees have certified to the treasurer 'a compliance with conditions authorizing its payment, can not recover damages on the bond in an action restraining the treasurer from paying the tax.</p> <p>Same: evidence. In an action on an injunction bond given to re-2 strain a township treasurer from payment of a tax levied to aid in the construction of a railway, evidence that the trustees, in refusing to certify that the company had complied with the conditions authorizing its payment, had acted under the advice of counsel who were also attorneys for the obligors on the bond,, was properly refused, where there was no claim that the obligors induced the trustees to refuse the certificate.</p>

<p>Pleadings: demurrer: waiver. Want of capacity to sue which is 1 apparent on the face of a petition is demurrable, and unless a demurrer is interposed the objection is waived.</p> <p>Actions: one or more suing for all interested. Where a question 2 is one of general interest to many persons, or the parties are so numerous as to make it impracticable to bring them all before the court, one or more may maintain or defend the action for the benefit of all.</p> <p>Pleadings: amendment:' discretion. The right to amend a plead-3 ing is largely discretionary and where a new cause of action or defense is not introduced the rule is to allow it; but where all the facts alleged in an amendment pleading an estoppel as an affirmative defense were known to the defendant prior to filing his answer, hut the amendment was not offered until after plaintiff had closed his evidence, there was no abuse of discretion in striking it from the files.</p> <p>Estoppel. An essential element of estoppel is prejudice growing out 4 of reliance upon the conduct of the other party, and must be shown to support the plea.</p> <p>Injunction: trespass: inadequacy of legal remedy. Where the 5 acts of a party may cause irreparable injury or multiplicity of suits, or are acts of trespass constantly repeated though of trifling injury, equity will grant relief because of inadequacy of the legal remedy. Thus where parties wrongfully persist in connecting their telephone lines with those of a company they may he enjoined from so doing in the future, although the acts amount merely to a trespass.</p> <p>Telephones: mutual associations: duty to extend service. A 6 mutual telephone company, organized solely for the benefit of its members, is not bound to extend its membership or to provide connecting lines for others.</p>

— Hon. B. W. Preston, Judge. Indictment for maintaining a liquor nuisance. There was a verdict of guilty, and judgment thereon. The defendants appeal.

— Hon. Wm. H. McHenry, Judge. Action in equity brought by plaintiff as surety on a bond given by the Marsh Bridge Company to secure the performance hy the latter of the obligations of a contract with the city of Des Moines for the construction of a concrete bridge across the Des Moines river within the city limits, known as the Locust Street Bridge, to procure its release from liability oil such bond, or to be subrogated to the rights of claimants for labor and material, who…

<p>Appeal from Clay District Court. — Hon. A. D. Bailie, Judge.</p> <p>An action of slander in which the plaintiff recovered. The defendant appeals.</p>

— Hon. R. P. Howell, Judge. Action in equity asking that a judgment and default against the plaintiff be set aside. There was a judgment for the defendant, and the plaintiff appeals.

<p>Appeal from Woodbury District Gourt. — Hon. William Hutchinson, Judge.</p> <p>Action on an attachment bond. Verdict and judgment for plaintiff. The defendants appeal.</p>

— Hon. C. B. Bradshaw, Judge. Suit to recover the value of rent reserved in hind. The court directed a verdict for the defendant, and after-wards set it aside and granted a new trial. The defendant appeals.

<p>Appeal from, Wright District Gourt. — IIon. Chas. E. Albrooic, Judge.</p> <p>Appeal from a decree establishing certain lines and corners.</p>

— Hon. F. R. Gaynor, Judge. Suit to recover for a personal injury. There was a directed verdict for the defendants and a judgment thereon. The plaintiff appeals.

— Hon. Wm. Hutchinson, Judge. Abpeal from decree affirming the establishment of a drainage district by the board of supervisors of Woodbury and Monona counties.

— Hon. W. S. Withrow, J udge. Suit to recover damages for an unlawful invasion of the plaintiff’s home. Judgment for the defendant, from which the plaintiff appeals.

— Hon. J. H. Apple-gate- Judge. Action for money had and received. The defendants are the administrators of the original defendant, S. L. Collins. There was a verdict for the plaintiff, and defendants appeal.

<p>Appeal from Polk District Court. — Hon. Jesse A. Miller, Judge.</p> <p>Action at law to recover damages for unlawful interference with trade. Judgment for plaintiff, and defendants appeal. The plaintiff also appeals, but in the discussion of the case defendants only will be spoken of as appellants.</p>

<p>Appeal from Pottawattamie District Court. — Hon. W. E. Green, Judge.</p> <p>The defendant appeals from a judgment of conviction on charge of larceny.</p>

— Hon. D. M. Anderson, Judge. Action at law to set aside a will on the ground of undue influence. Verdict and judgment for the plaintiff. The defendants appeal.

- — ITon. Byron W. Preston, Judge. Action to recover a sum of money secured .by defendant from plaintiffs through fraud and deceit. Defendant’s defense was a general denial. At the conclusion of' the testimony, the trial court directed a verdict for defendant, 'and plaintiffs appeal.

<p>Appeal from Pollc District Court. — IIon. Lawrence De Graee, Judge.</p> <p>The defendant was accused of having carnal knowledge of an insensible female, and convicted of having assaulted such female with intent to have carnal knowledge of her. He appeals.</p>

<p>Appeal from Polk District Gourf. — Hon. Lawrence De Gcraee, Judge.</p> <p>Indictment f'or rape. Trial to a jury, verdict of an assault with intent to commit rape, and defendant appeals.</p>

— Hon. D. V. Jackson, Judge. Action at law upon a foreign judgment against defendant, Eolland E. Vincent. . A writ of attachment was issued and levied upon certain real estate as the property of the defendant. A petition of intervention was filed by the intervener, whereby he claimed to be the owner of the land. There was a judgment for the intervener. Plaintiffs appeal.

— IIon. J. I. Clark,Judge. Plaintiee filed a claim in probate against the estate of P. J. Clarke, deceased, and asked that it be established and given a preference in the payment of claims. The administrator admitted 'the claim, but denied plaintiff’s right to be treated as a preferred creditor. The trial court allowed the claim, but refused to give it preference over those of other creditors, and plaintiff appeals.

— IIon. J. F. Clyde, Judge. Suit in equity for an accounting of an alleged partnership and for the recovery of money had and received, and for the value of alleged services. The answer contained a general denial and a counterclaim for money loaned. There was a decree for the plaintiff for $1,247. Defendants appeal.

— Hon. O. G. Bee, Judge. Action to recover expenses for care and medical treatment of a nonresident pauper resulted in the dismissal of the petition. Plaintiff appeals.

— Hon. Lorin N. Hays, Judge. Action for specific enforcement of an antenuptial contract by which defendant had agreed in writing that she would claim no right or interest in the real estate or personal property of plaintiff by reason of a contemplated marriage between them, and- would join with plaintiff in any deed or conveyance of his property which he should make for the purpose of relinquishing her dower right. There was a decree for plaintiff, and defendant appeals.

<p>Bigamy: evidence: certified record: identity of names. On a prosecution for bigamy in which defendant claimed he had never been legally married to prosecutrix, because at the time of their alleged marriage he had another living wife from whom he had not been divorced, the certified record of divorce from another county is admissible on that question; and where the names disclosed thereby are the same or very similar it is sufficient, in connection with his declaration that he had been divorced from his former wife, to identify him as the defendant therein. In this action there was no such dissimilarity in names as to destroy the efficacy of the certified record.</p>

— Hon. Lawrence De Graee, Judge. Action to cancel a contract for tbe purchase of certain real estate in Warren county, Iowa, and to recover the sum of $200 paid by plaintiff on said contract. Defendants demurred to the petition, and, their demurrer having been overruled, they elected to stand thereon, and judgment was rendered against them as prayed. They appeal.

<p>Life insurance: failure to pay premium: forfeiture. Where it 1 was provided in a policy of life insurance issued Sept 23, 1907, that the annual premiums should be paid on August 7th each year, and also provided that,thirty days grace should be granted for payment of all premiums, failure to pay a premium within thirty days from the date specified for payment forfeited the policy.</p> <p>Same: conversion from term to life policy. The policy in this 2 case also provided that during the first year from date it should be a term policy, and if the second year’s premium be then paid it should become a limited payment life policy. Held, that the contract could be converted into a limited payment life policy by payment of the second year’s premium at any time within a year from the date of the policy, and was not limited by the thirty days’ grace.</p>

<p>Appeal from Hancock District Gourt. — Hon. J. J. Clark, Judge.</p>

— Hon. D. V. Jackson, Judge. Action to recover damages for personal injuries received by plaintiff while in defendant’s employ engaged in the operation of a' laundry mangle. A previous trial resulted in a verdict for plaintiff in a sum of $17,375, and a new trial was granted on defendant’s motion. The ruling of the court granting such new trial was sustained on plaintiff’s appeal to this court. See 145 Iowa, 212.

— LIon. James A. Howe, Judge. Suit in equity to establish a r'esulting trust in an undivided one-half of certain real estate. There was a decree for the plaintiff, and the defendants appeal.

— 33on. M3 A. Boberts, Judge. Action to recover for services rendered as health officer of the City of Eldon. There was a directed verdict for the plaintiff.’ The defendant appeals.