Volume 154 — Iowa Reports

— Hon. W. R. Green, Judge. Action to enjoin the collection' of costs of paving a street 'apportioned to and assessed against the several lots of’ plaintiffs. On bearing, the petition was dismissed, and plaintiffs appeal.

<p>Appeal from Polk District Court. — Hon. Jas. A. Howe, Judge.</p> <p>The opinion states the case sufficiently.</p>

<p>Appeal from Woodbury District Court. — Hon. John E. Oliver, Judge.</p> <p>Christ. Ihmes died January 6, 1910, and upon the admission of his will to probate, W. M. Murphy was appointed executor thereof. The petition of the latter disclosed that decedent left no real estate, and that, after the payment of debts and. costs of 'administration, there will be left for distribution about $8,240, and he prayed for construction of the decedent’s will and direction as to the distribution of the estate. The will, in so far as material, is in words following:</p> <p>Second. Subject to the foregoing, I give to my two children, Anna Maria Katherena Ihmes and Frederick William Ihmes, the sum of one thousand ($1,000) dollars each, the same to be paid to them upon their becoming of legal age respectively.</p> <p>Third. I give to Mrs. Katherena Mahnke, one thousand dollars ($1,000) ; to Fred Uda, one thousand dollars ($1,000) ; to the German Lutheran Church of Sioux City, Iowa, two thousand dollars ($2,000); to the St. Vincent’s Hospital of Sioux City, Iowa, one thousand dollars ($1,000) ; and to the Old Men’s Home of Sioux City, Iowa, one thousand dollars ($1,000).</p> <p>Fourth. All the remainder and residue of my estate after the payment of the above bequests and expenses of administration, I give to the Good Shepherd’s Home, of Sioux City, Iowa, whatever the same be and wherever situated.</p> <p>Hue notice was given, -and St. Paul’s German Evangelical Lutheran Church answered claiming to he the beneficiary intended in the bequest to “the German Lutheran Church,” and also alleged that the other beneficiaries last mentioned in the will were entitled to take. The Sisters of St. Benedict of Sioux City, Iowa, interposed a petition, alleging that it was incorporated to conduct a hospital and old people’s home, and as such, did conduct the St. Vincent Hospital at Sioux City, and also the Home of Old People, wherein it cared for old men and women who might enter under certain restrictions, and the petitioner alleged that St. Vincent Hospital was intended by the decedent; that no such place as Old Men’s Home was known; and that testator intended the Home of Old People operated by petitioner. J. M. Wormley was appointed guardian ad litem of Frederick William and Anna Maria Katherena Ihmes, and in answer for them alleged that the bequests to the German Lutheran Church, St. Vincent’s Hospital, the Old Men’s Home, and the Good Shepherd Home were to corporations, and, as the law prohibited more than one-fourth of the estate to be willed to corporations, prayed that the same be enforced. On hearing, decree was entered declaring none of the three bequests last mentioned was to a corporation and ordering distribution as prayed by St. Paul’s German Evangelical Lutheran Church and the Sisters of St. Benedict. The guardian ad litem appeals.</p>

<p>Attorneys’ fees: part of costs. Attorneys’ fees taxed as provided 1 in a written instrument are part of the costs incidental to the action, and not of the amount in controversy, and belong to the person in whose favor they are taxed.</p> <p>Judgments: application of payment to cleric. A judgment debtor 2 can not direct the application of an involuntary payment made to the clerk of court.</p> <p>Same. The clerk of court has no right to apply an involuntary pay-3 ment by the judgment debtor to items of cost in which he has no interest, but the same belongs to the creditor for application as required by law; and he may direct a part therof to payment of attorneys’ fees taxed in the case.</p>

— Hon. N. IL G-aynob, Judge. Plaintiees are resident taxpayers -of tbe county of Lyon, and as such, tbey made demand upon the board of supervisors of the county to bring action against the defendant to recover from'him money which be bad drawn from the county treasury for bis services as auditor, in excess of tbe amount -of compensation allowed by statute.

<p>Boundaries: relocation. The mere survey of a boundary line once established by acquiescence and adverse possession, though by mutual consent and agreement of the parties, will not effect a change in the line, but there must be an express agreement that it shall be thus changed. And even though there was an oral agreement to change the line by a resurvey this must have been followed by possession or improvement thereto to be effective.</p>

<p>Appeal from Mahaska District Court. — IIon. B. W. Preston, Judge.</p> <p>The plaintiff obtained judgment for $100 against Ella McDowell October 21, 1901, and on May II, 1909, caused execution to issue thereon and H. D. Parker, executor of the estate of B. E. Winldeman, deceased, to be served with notice of garnishment. Upon the settlement of the estate, the executor had in his hands $213.84, after the payment of debts and expenses of administration and was ordered by the court to deposit the same with the clerk for future disposition.</p> <p>By the second clause of his will, Winldeman had bequeathed to his niece, Ella Winldeman, since married to McDowell, the sum of $600, to be paid to her as soon after his death as possible. By the third clause he bequeathed the rest of his estate to his nephews, James M. and Melvin Winldeman. The residuary legatees intervened, claiming that the testator had satisfied the legacy to Mrs. McDowell prior to his death, and that they were entitled to his entire estate.</p> <p>The issues were tried to the court aud judgment entered finding there to have been no ademption, and ordering the judgment to be paid from the legacy to Mrs. McDowell. The interveners appeal.</p>

— Hon. Robert Eonson, Judge. Action to recover damages for personal injuries received by plaintiff while in «defendant’s employment. At the conclusion of the evidence for defendant, the court, on defendant’s motion, directed a verdict in its favor, and from judgment on such directed verdict plaintiff appeals.

' — Hon. John F. Oliver, Judge. Three actions, the first by this plaintiff to replevin chattel property alleged to be covered by a mortgage, the second by plaintiff in equity to foreclose chattel mortgages, and the third by defendants to recover an alleged balance due on account, were by agreement consolidated in the lower court, and tried to a jury under a stipulation that the issues between the parties were, first, whether the amounts due and owing on certain promissory…

<p>Intoxicating liquors: injunction: specification of grounds: ap1 peal. Where the relator in an action to abate a liquor nuisance submits to an order of court requiring him to specify the violations of law relied upon, he can not upon appeal inject into the case new grounds of complaint: Nor will those grounds alleged in the information which are not argued by the relator be considered on appeal.</p> <p>Same: requalification: new bond. A liquor dealer who has been 2 enjoined for the violation of law can not claim the future protection of the law without qualifying anew by filing a new bond. And the fact that he was knowingly violating the law when he was enjoined would not make his bond then in force a new bond for his future protection.</p>

<p>Carriers: injury to live stock: negligence: burden of proof. The 1 shipper of live stock who accompanies the shipment has the burden of showing negligence of the carrier causing injury to the stock, even though the jury may find that the shipper was not negligent; and an instruction under such circumstances that the burden .is upon the carrier to show that the injury was due to •some cause over which it had no control was erroneous.</p> <p>Same: contracts of shipment: specification of route: oral evi2 dence. A carrier can not impose upon the shipper any duty of accompanying the shipment; his duties only arise out of the fact that he does accompany the shipment, and therefore he may rely on the fact that the shipment will be made over the route specified in the bill of lading: So that where the shipper undertook to accompany the shipment but left the train because his car was taken over a different route, his testimony, in an action for injury to the shipment, concerning the verbal agreement as to the route was admissible as explaining his conduct in leaving the train, although the route was specified in the written bill of lading.</p> <p>Same. Where the original contract did not specify the route of ship-3 ment but the same was contained in a contemporaneous bill of lading, not offered in evidence by either party, the shipper’s testimony that the route was agreed upon when the contract of shipment was made was competent to corroborate his version of the contents of the bill of lading.</p> <p>Same: liability of carrier. A carrier of live stock is not liable 4 for injury thereto while in transit unless the result of its negligence, regardless of whether it was such as would ordinarily occur or was of an extraordinary character.</p> <p>Same: damages: evidence. Where the shipper, in estimating the 5 damages to the shipment, has given his estimate of the value thereof had it been delivered in reasonably good condition and also the value in its actual condition, he may be cross-examined concerning what he paid for the shipment, as a test of his opinion as to value.</p>

— IIon. Thomas L. Maxwell, Judge. The South Side Lumber Company recovered judgment for $172.61 against the plaintiff, H. Gf.

Appeal ftom Woodbury District Gourt. — How. David Mould, Judge. Action to subject real property to the satisfaction of the plaintiff’s judgment resulted in the dismissal of the petition. The plaintiff appeals.

<p>Appeal from Davis District Court. — IIon. F; W. Eiciielbérger, Judge.</p> <p>Action to recover damages for personal injuries suffered by plaintiff through defendant’s negligence as the result of falling from a freight car in a rapidly moving train, in which car plaintiff was riding as a passenger in charge of stock, which was being transported therein. There was a verdict for plaintiff, and from, judgment on such verdict the defendant appeals.</p>

— IIon. D. M. Anderson, Judge. Suit in equity against a sheriff and an execution plaintiff to set aside a sheriff’s sale, and to enjoin the issuance of the sheriff’s deed thereunder to certain real estate. The plaintiff alleged that she was the owner of such real estate, whereas it was levied upon by the sheriff as the property of her husband under an execution against him. There was a decree for the plaintiff, and the defendants appeal.

— TTon. F. O. Ellison, Judge. Habeas corpus proceedings brought by the plaintiff, an inmate of the penitentiary, to test the legality of his imprisonment. The district court refused to sustain the writ and remanded plaintiff to the custody of the warden. From this order an appeal has been taken. The material facts are stated in the opinion.

— Hon. Henry Bank, Jr., Judge. Suit in equity to quiet plaintiff’s title to a certain lot in the city of Keokuk.

<p>Garnishment: foreign judgments : jurisdiction. A defendant against whom a judgment has been rendered in a foreign state is not subject to garnishment for the indebtedness in a proceeding in this state; as the courts of this state have no jurisdiction to protect the judgment defendant as. garnishee against the enforcement of the judgment in the foreign state and a second payment of the debt.</p>

<p>Appeal from Jefferson District Court. — Hon. D. M. Anderson, Judge.</p> <p>Application to set aside a default and judgment against the defendant. The trial court denied the application, and defendant appeals.</p>

— Hon C. W. Vermillion, Judge. Action of mandamus to install the appellant, an honorably discharged soldier of the Civil War, in the position of janitor of the courthouse of Ottumwa, by virtue of his right to preference in such employment, under the soldiers’ preference law (Code Supplement 1907, section 1056-a15.

— Hon. R. P. Howell, Judge. Action on an indemnifying bond given under section 3992 of the Code. Upon motion of the defendants, the trial court struck certain allegations of the petition relating to attorney’s fees and exemplary damages. From this ruling, the plaintiff has appealed.

<p>Appeal from Keokulc District Court. — Hon. W. G. Clements, Judge.</p> <p>Proceedings in the lower court with reference, to the allowance of a claim of Eliza Johnson, widow of deceased, of $300 for support during the year following the death of deceased, resulted in an order for such an allowance in the sum of $250. The executor appeals.</p>

— Hon. Henry Bank, Jr., Judge. On July 21, 1910, plaintiff filed a petition alleging that the defendant Kate Sliph owned lot 125 in the city of Ft.

<p>Mechanics’ liens: enforcement against public buildings: attorneys’ fees. The statute relating to claims of subcontractors for material or labor used in the construction of a public building, etc., and providing for an adjudication of the same in an equitable action and the taxation of an attorney’s fee against the losing party and in favor of the corporation, contemplates the taxation of attorney’s fees against the losing party after a trial as therein provided. But where the contractor, as in this case, and the corporation induced the subcontractor to settle his action against both for less than the amount of his claim, and there was no suggestion that he should be subjected to further loss by the payment of attorney’s fees, he was not the losing party within the contemplation of the statute, and the corporation was estopped from claiming the assessment of such fees against him.</p>

— IIon. Vh. Hutchinson, Judge. Action at law to recover damages caused by a fire set out by defendant’s agents. Trial to a jury, directed verdict for defendant, and plaintiff appeals.

<p>Appeal from Lyon District Court. — Hon. David Mould, Judge.</p> <p>From judgment, awarding plaintiff damages, defendant appeals.</p>

<p>Appeal from Marion District Court. — Hon. J. D. Gamble, Judge.</p> <p>Action for the specific performance of a contract to convey real estate. The trial court found that there was a contract between plaintiff and defendant, William Fetzer, but that, as defendant, Alberta Fetzer, wife of William, was an innocent purchaser of the land from her husband, the contract could not be specifically . enforced, and, in lieu thereof, judgment was rendered against William for the value of the land, to wit, $5,500, with interest. Defendant William Fetzer appeals from the judgment against him, and plaintiff also served notice of appeal. No appearance has been made for plaintiff in this court, and the case will be considered only in so far as it involves defendant William Fetzer’s appeal.</p>

— Hon. H. M. Towner, Judge. Action to recover damages for personal injuries, alleged to have resulted to plaintiff by reason of the negligent operation by defendant of an automobile, causing the fright of a team of horses and the overturning of the buggy to which they were hitched, and in which plaintiff was seated. There was a verdict for plaintiff in the sum of $10,000, and from judgment on this verdict defendant appeals.—

— Hon. K. E. Wilkockson, Judge. Suit in equity to enjoin interference with a private roadway. There was a decree for the plaintiff, and the defendant appeals.

— Hon. E. P. Howell, Judge. Action to quiet title to an eighty-acre tract of land in Iowa county. There was a decree for plaintiff, and defendants appeal.

<p>Appeal from Van Burén District Court. — Hon. M. A. Hoberts, Judge.</p> <p>Action to recover possession of certain liquors. Judgment for defendant, and plaintiff appeals.</p>

— Hon. James D. Smythe, Judge. Suit in equity to establish a lien or trust upon certain lands, the title to which is in defendant Dolan, for the appointment of a trustee in place of Dolan, and for other equitable relief. The trial court dismissed plaintiff’s petition, and he appeals.

— Hon. W. N. Treichler, Judge. This is an action on service of' notice by publication for divorce and alimony.

— Hon. M. A. Boberts, Judge. Suit to enjoin the defendant from laying a side track. From decree as prayed, the defendant appeals.

— Hon. F. ]R. Gaynor, Judge. In a suit to enjoint the use of a party wall and the cutting of an opening therein, the evidence was introduced and the cause submitted. Thereupon the defendants filed a bond, conditioned as provided in section 3002 of the Code, and, the same being duly approved, the petition was dismissed and the costs taxed to defendants. The plaintiff appeals.

— Hon. John F. Oliver, Judge. Action to recover damages growing out of defendant’s failure to promptly deliver u telegram. Trial to a jury. Yerdict for plaintiffs in the sum of $900, and defendant appeals.

Appeal, from Plymouth District Court. — Hon. N. B. Gay-nor, Judge. In form, this-is an. actiou or claim for rent against the administrator of P. J. Boyle. The controversy, however, is between the plaintiff and the intervener who claims a part of the rent as the vendee of the leased premises, and as having acquired the same before the rent accrued. There was a judgment for the plaintiff, and the intervener appeals.—

<p>Appeal from Johnson District Court. — IIon. 3&. P. Howell, Judge.</p> <p>This is an 'action to set aside 'the probate of the will of Ellen J. Fainall, deceased, and to declare the said will null and void. A jury was called, and at the conclusion of the testimony the trial court directed a verdict for the defendants. Plaintiff appeals.</p>

'Appeal from, Washington District Court — Hon. Byron W. Preston, Judge. Action at law to recover damages for breach of of a contract to convey real estate. Trial to a jury, verdict and judgment for plaintiff for part of the amount claimed, and he appeals.

— Hon. J. M. Parker, Judge. Action at law to recover damages occasioned by the flooding of the plaintiff’s market garden. Judgment for plaintiff, and defendant appeals. The material facts are stated in the opinion.

— Hon. M. A. 'Roberts, Judge. Action to quiet title. There was a decree granting relief as against one of the defendants and -as to others denying the full Belief prayed in the petition. Both the plaintiffs and the defendants appeal, but, as defendants’ appeal was first perfected, they will be treated as appellants.

— Hon. R. M. Wright, Judge. Dependant was indicted, tried 'and convicted of the crime of larceny, 'and from the judgment imposed, appeals.

— IIon. John E. Oliver, Judge. This is a proceeding in probate. It is an application on the part of the widow as the proponent of her husband’s will for an order on the executor directing him to pay her the reasonable expense incurred by her in obtaining the probate of such will. The application was denied, and she appeals.

— Hon. Chas. E. Al-brook, Judge. Action at law to recover damages for mental suffering caused by defendant’s refusal to permit plaintiff to visit his sick child and to attend its funeral. The trial court ordered a verdict for defendant, and plaintiff appeals.

<p>Appeal from Hamilton District Court. — Hon. R. M. Wright, Judge.</p> <p>The defendant appeals from a judgment convicting him of having maintained a liquor nuisance.</p>

— Hon. D. M. Anderson Judge. Action in equity to enforce specific performance of a written contract for the sale or exchange of lands. There was a decree as prayed, and defendants appeal.

— Hon. J. J. Clark, Judge. Action to recover for a loss by fire, alleged to be covered by a policy of insurance in the defendant company. The court sustained a demurrer to the petition, and on the election of plaintiff to stand on his pleading, judgment was rendered for the defendant, from which the plaintiff appeals.

— Hon. Clieeord P. Smith, Judge. Action on a policy of insurance issued by a farmers’ mutual company. By agreement it was tried in equity. There was a decree dismissing the petition. Plaintiff appealed.

— Hon. John Siiortley, Judge. Action at law to recover damages for alienation of affections. Trial to a jury, verdict for $10,000, which -the trial court reduced to the 'Sum of $5,000 and for which amount judgment was rendered for plaintiff. Defendants appeal.

<p>Seduction: verdict upon conflicting evidence. In this action for i seduction the evidence is such as would support a verdict for either party and the finding of the court will not therefore be disturbed.</p> <p>Same: damages. The verdict awarding plaintiff $2,000 damages in 2 'this action is sustained.</p> <p>Same: instructions. The instructions in an action will not be dis-3 turbed because lacking somewhat in directness of statement concerning the decisive question in issue, if upon the whole record the jury could not have been misled thereby; especially where no more specific statement was required. In this action the instructions, while not as clear as might have been, are not prejudicially erroneous because permitting a finding of the claimed seduction at a different date from that alleged, and the awarding of damages therefor.</p> <p>Same: previous chaste character: instructions. An action for 4 seduction may be maintained although the plaintiff does not put her previous chaste character in issue; but when withholding that issue she can not recover damages for loss of character, shame or disgrace, and the court’s instructions limiting recovery in this respect were proper.</p>

— Hon. John F. Oliver, Judge. This is 'an action for damages against eighteen, ¡defendants for unlawfully obstructing a stream, and thereby causing plaintiff’s premises to be flooded to his injury.

<p>Vendor and purchaser: mortgages: latent lien for interest: notice. A purchaser of land who redeems from the foreclosure of a third mortgage is chargeable with notice of a first mortgage which is of record and of the amount due theron, hut is not chargeable with notice of a latent lien for interest on the first mortgage paid hy a second mortgagee to prevent foreclosure of the first mortgage while he was foreclosing the second mortgage, and which was not included in the judgment and sale of the land under the second mortgage.</p>

— Hon. Henry Bank, Jr., Judge. Suit in equity by guardian to set aside certain deeds made by his ward on the ground of mental incompetency and undue influence. There was a decree for the plaintiff as prayed. The defendant appeals.

<p>Pleadings: demurrer: sufficiency. A demurrer alleging'that the 1 facts stated in plaintiff’s petition do not entitle him to any recovery, because failing to allege or show that defendant ever became liable on any enforceable contract entered into by him, is sufficient to raise the question of whether -any cause of action upon the contract was stated.</p> <p>Orders for payment of money: acceptance: extent of liability. 2 Defendant agreed to pay plaintiff a royalty on goods manufactured according to a secret process furnished by plaintiff in monthly payments to a certain sum. Held, that an order to pay said sum to a third party on account of the contract, and accepted by the defendant, required defendant to make only such payments as it would have been required under the contract to make to the plaintiff; and knowledge of defendant that the payee in the order had advanced to plaintiff the full sum of money represented by the order would not have increased defendant’s liability thereon.</p> <p>False representations: matters of opinion. The representations 3 of defendant in this case that it had ample facilities for the manufacture and marketing of the product, that it could and would produce larger profits, certainly in excess of a certain sum, upon the strength of which plaintiff made a loan and accepted an order on defendant for the amount stated, were mere expressions of opinion as to future possibilities which did not render defendant liable for deceit because of failure of the contract to produce the expected amount of earnings; or work an estoppel against defendant to deny its liability for the entire amount of the order, irrespective of the royalties earned.</p>

<p>Appeal from Polk District Court. — Hon. James A. Howe, Judge.</p> <p>Suit in equity to rescind and to set aside conveyances of property, real and personal, on the ground of fraud. There was a decree for the plaintiff, and the defendants Hanson and Eilce appeal.</p>

<p>Wills: construction: life estate. A will devising to the widow 1 all of testator’s estate for her support and that of the minor children, and in case of her death before the minor children reach their majority or become able to support themselves the estate to be kept for their support, and upon the death of the invalid children prior to the death of the widow then the estate upon her death to be equally divided among the surviving children, vested the widow with a life estate simply; and upon her failure to elect 'to take under the will she took a distributive share under the statute.</p> <p>Same: partition: distribution of estate. Under the foregoing 2 provision of the will in question it is held, that upon the death of the widow leaving an invalid minor child it was the purpose of the testator that such child should be provided for during its entire disability, regardless of age, and that the other minors were not to be supported from the estate after arriving of age; and that upon partition provision should be made for keeping two thirds of the estate for the support of the invalid, and upon its death distributed among the surviving children, the other one-third going immediately to such children.</p> <p>Partition: attorneys’ fees. Where there is a contest in partition 3 proceedings over the title to the property, and both parties employ attorneys, fees are not taxable to the estate in favor of the plaintiff’s attorneys.</p>

— Host. J. J. Clark, Judge. This controversy had its origin in a probate proceeding. It is a contest between the widow on the one hand, and the heirs at law on the other, and involves the validity of an antenuptial contract. The trial court sustained the validity of such contract. The widow, Isabella Uker, has appealed. The appellees are the children of the decedent by a former marriage.:

<p>Appeal from Polk District Court. — Hon. W. H. McHenry, Judge.</p> <p>Action to recover the contract price of a machine that the defendant agreed to purchase. Judgment for the plaintiff; the defendant appeals.</p>

<p>Appeal from Story District Court. — Hon. C. G. Lee, Judge.</p> <p>Action at law upon a policy of life insurance. There was a verdict and judgment for the defendant, and plaintiff appeals.</p>

<p>Appeal from Polk District Court. — Hon. W. H. McHenry, Judge.</p> <p>Action at law to recover damages for personal injuries received by William F. Gordon, deceased, while in the employ of the defendant company. The action was commenced by the deceased during his lifetime; but during its pendency he died, and his administratrix was substituted as plaintiff. Trial to a jury, verdict and judgment for plaintiff in the sum of $3,850, and defendant appeals.</p>

— Hon. D. M. Anderson, Judge. Action in equity to enjoin the defendants from crossing the plaintiff’s land where there is an allegal highway, and to quiet title. There was a judgment for the defendants, and plaintiff appeals.

— Hon. Hugh Brennan, Judge. Suit oh promissory note executed by W. S. Hawthorne aided by the levy of a writ ,of attachment. II. C. Hawthorne intervened, claiming the property, and from the dismissal of the petition of intervention, he appeals.—

<p>Estates of decedents: dower: nonresident aliens. Code, section i 3368, providing that as against a purchaser from a nonresident alien the survivor shall not be entitled to a distributive share in the estate of deceased, if at the time of the purchase the survivor was also a nonresident alien, applies to a resident of another state. And the term purchaser as used in the statute does not include a devisee,, but has reference to a purchaser for a consideration.</p> <p>Descent and distribution: conveyance to wife: gifts: advance-2 ments. Where a husband conveys property to his wife or purchases it in her name, paying therefor with his own means, the transaction is presumptively a gift, in the absence of a statute or evidence to the contrary, and hot an advancement; and she can not be held to account to him, or upon his death to his personal representatives.</p> <p>Same: contracts between husband and wife: dower. The statute 3 declaring that a husband or wife has no interest in the property of the other which is the subject of contract between them is a statute of descent and distribution; and a contract between them with reference to the wife’s interest in the husband’s estate is void as against her right of dower, and as against devisees of the husband who were not misled by a conveyance from him to her pursuant to an oral contract that the same should be in lieu of dower.</p>

<p>Fraudulent representations: pleadings: evidence. The allegations I of a petition in an action for breach of warranty and false representations inducing the sale of land, that defendant falsely represented that there was no laid out road across the premises, had reference to a statutory highway, and proof that the public had used the highway for many years was not admissible because not in conformity with the allegations of the petition.</p> <p>Conveyances: breach of warranty. A statutory highway, if known 2 to a purchaser, would not constitute a breach of a general covenant of warranty.</p> <p>Fraudulent representations in sale of land. One who knew before 3 purchasing land that the public was using a highway over the same can not recover damages for the alleged false representation that the same was only temporary.</p>

<p>Appeal from Polk District Court. — —Hon. W. H. McHenry, Judge.</p> <p>Action upon a check drawn by defendant upon the People’s Trust Company of Pella, Iowa, which was duly protested for nonpayment. Defendant pleaded that the check was without bonsideration, and that his promise, if any, was within the statute of frauds, and therefore void. Hpon the issues joined, the case came on for hearing to a jury, and at the conclusion of the testimony each party moved for a directed verdict. Plaintiff’s motion was overruled, and defendant’s was sustained, and a judgment was entered on the verdict returned according to the court’s direction. Plaintiff appeals.</p>

— Hon. Hugh Brennan, Judge. Action to recover damages for the death of John J. Doty, who is alleged to have lost his life because of the negligence of defendant. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

<p>Marriage and divorce: alimony. Where a wife has been granted a divorce on the ground of habitual drunkenness and neglect she is entitled to a fair share of. the husband’s property, not however to an allowance which amounts to a legal forfeiture ot his entire estate.</p> <p>In this action the wife is given one-third of the real estate clear of liens and the husband’s two-thirds, charged with the mortgage indebtedness and all other liens' chargeable against the property, and taxable costs of the suit.</p>

<p>Appeal from Grundy District Court. — Hon. F. C. Platt, J udge.</p> <p>Action to recover damages for false imprisonment. There was a directed verdict, and a judgment thereon for the defendant. The plaintiff appeals.</p>

<p>Appeal from Clay District Gourt. — Hon. A. D. Bailie, • Judge.</p> <p>Appeal from an award of damages for the proposed construction of a ditch across plaintiff’s land.</p>

<p>Cotenants: adverse possession: ouster: evidence. One tenant in 1 common may oust his cotenants, and by a hostile possession under claim of right maintained for a sufficient length of time acquire the entire title; and the ouster may be constructive as -well as actual. But an ouster and hostile title will not be found and upheld upon doubtful or equivocal evidence; especially where the cotenants are members of the same family. In this action the evidence is held insufficient to show ouster of his cotenants by a father, who had acquired an interest along with his children in the property of his deceased wife, so as to entitle him to the entire property to the exclusion of the interests of the children.</p> <p>Same. It is the duty of a cotenant in possession to pay taxes, and 2 such payment is of slight significance on the question of ouster.</p> <p>Same: burden of proof. A cotenant claiming title to the entire 3 tract by adverse possession has the burden of establishing ouster by clear and persuasive evidence.</p> <p>Partition: attorney fees. In contested partition suits, attorneys’ 4 fees are not taxable in favor of plaintiff’s attorney.</p>

<p>Wills: contract to devise: evidence: sufficiency. The evidence in this action is reviewed and held insufficient to establish an agreement on the part of decedent that if plaintiff would live with his family he would leave her a portion of his estate.</p>

<p>Criminal law: burglagy: evidence. On this prosecution for burglary 1 the evidence is reviewed and held sufficient to support a verdict of conviction.</p> <p>Same: evidence: erroneous admission: prejudice. Evidence which 2 was rendered inadmissible because of failure to connect defendant with the fact thus proven was not prejudicial to him, where the same was later stricken from the record.</p> <p>Same: trial: separation of witnesses. The separtion of witnesses 3 upon the trial is largely a matter of discretion and unless abused the appellate court will not interfere- with the order.</p>

— Hon. H. M. Townee, J udge. This is a habeas corpus proceeding, whereby the petitioner seeks to obtain custody of his minor daughter. The defendant is the maternal grandfather of the minor, in whose family the minor and her mother had lived for about one year before these proceedings were begun. In this home the mother died Octoer 10, 1910, and this proceeding was begun a few days thereafter. The petition was dismissed, and the petitioner appeals.

— Hon. Henry Bank, Jr., Judge. These two cases are the aftermath of Miller v. Kramer, 148 Iowa, 460. One is a continuation of the former case, being an appeal from a decision on the merits, and the other is a certiorari proceeding brought to determine the legality of the entire proceeding in the main case.

<p>Appeal from Jefferson District Court. — Hon. D. M. Anderson, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Attorneys’ liens. An attorney’s lien is purely statutory and unless 1 the facts bririg the case within the terms of the statute no lien exists.</p> <p>Same: to what attaches. An attorney’s lien attaches to money due 2 his client and in the hands of the adverse party or his attorney in an action in which his services were rendered, and not for a share of the recovery stipulated for by contract.</p> <p>Attorney and client: champertous agreements. An agreement by 3 which an attorney contracts to prosecute certain demands, by the terms of which no settlement can be made of the matters involved without the full concurrence and approval of the attorney, is champertous and void, because giving the attorney an interest in the subject matter of the suit.</p> <p>Attorneys’ liens: enforcement: parties: pleadings. Where plain-4 tiff is seeking to recover a sum held by defendant and an attorney claims a lien thereon for services rendered, the court may properly order that the attorney be made a party, under the provisions of Code, section 3466. But when thus brought in he can not by cross-petition against the plaintiff assert a cause entirely independent of his right to a lien upon the funds in controversy, and thus deprive the plaintiff of the right of a jury trial on the issues raised by his cross-petition; his rights as a party under such circumstances are no greater than they would have been had he intervened under the provisions of Code, section 3594.</p>

— Hon. H. P. Howell, Judge. Action to recover a commission under a contract to procure a purchaser for a farm. There was a verdict and judgment for plaintiff for the amount claimed, and defendant appeals.

— Hon. William Hutchinson, Judge. Action in equity to recover tbe purchase price of an electric engine, and to enforce a mechanic’s lien therefor against the premises of defendants, upon which the engine had been placed for use in connection with such premises. There was a decree for the plaintiff, and defendants appeal.

<p>New trial: newly discovered evidence: sufficiency. In this action 1 to charge defendant as the confidential advisor of a deceased person with property entrusted to him, it was made to appear that a certain certificate of deposit and notes had been entrusted to defendant by decedent, and there was no showing of their return to him. Held, that affidavits in support of defendant’s motion for a new trial on the ground of newly discovered evidence showing a return of the certificate and its payment to decedent by the bank, and of the notes and of their subsequent payment by the persons to whom they were giyen, disclosed sufficient newly discovered evidence to require the granting of a new trial;</p> <p>Bailees: delivery of property to an incompetent: liability there-2 for. Where one who held securities belonging to another, adjudged an habitual drunkard, delivered ’ them to him after the commencement of proceedings for the appointment of a guardian, he could not be held liable for the value of the securities by an heir of the incompetent, after his death; the appointment of a guardian not having been made at the time of the delivery.</p>

<p>Divorce: desertion: evidence. Where a husband has deserted his 1 wife for the statutory period she is entitled to a divorce on that ground, unless during such period he has in good faith invited her to return without imposing any improper qualifications or conditions. In this action the evidence is reviewed and held sufficient to show that the defendant deserted plaintiff by compelling her to leave home.</p> <p>Same: conditional offer of cohabitation. The offer of a husband 2 to renew cohabitation with his wife whom he has deserted, on condition that she desist from offering her counsel in their mutual business affairs, will not interrupt the running of the statutory period of desertion.</p> <p>Same: alimony. In this case there were five minor children and 3 the custody of the youngest daughter and son was awarded the plaintiff. The defendant was worth from $20,000 to $25,000 and plaintiff was given $500 temporary alimony and $7500 permanent alimony. Held, on appeal that the permanent alimony should be reduced to $5000.</p> <p>Same: temporary alimony: effect of remarriage. The fact that 4 pending the appeal in this case the plaintiff married another did not deprive her of the right to the temporary alimony awarded.</p>

— IIon. James W. Bollinger, Judge. Action to quiet title. The petition alleges that the defendants claim a right of roadway over plaintiff’s land. Such right is challenged by the plaintiff, and a decree quieting his title is prayed. The defendants, who are husband and wife, admit that they claim a right of roadway over plaintiff’s land. There was a decree for the defendants, and the plaintiff appeals.

H. K. Evans, Judge. This action was brought in equity to recover from the directors of the Corning State Savings Bank the losses alleged to have been sustained by the plaintiff as surety for F. L. La Rue, as administrator of two estates; the petition alleging that he had deposited the funds of said estates in the Corning State Savings Bank, which he himself had rendered insolvent by his criminal and illegal acts, while acting as president and manager of said bank.

C. H. Kelly, Judge. Action for personal injuries resulting from a collision with, one of defendant’s trains on a public highway crossing. There was a verdict and judgment for the plaintiff. Defendant appeals.

B,. M. Wright, J udge. The treasurer and auditor notified James Dowling of being apprised that he was possessed of $25,000 in moneys and credits .omitted from taxation in 1904 and the- three years following, and of the time and place fixed for hearing, and on December 31, 1908, assessed moneys and credits at the actual value of $15,250 in each for the first two years mentioned, and $2,000 less for each of the succeeding years, and demanded of him taxes and accrued interests,…

D. JSmythe, Judge. The foregoing cases are of a similar character, involving the validity of the same proceedings for special assessment of the cost of a certain sewer, and will be disposed of in a single opinion. The trial court held the assessments invalid, and the city appeals. The material facts are stated in the opinion.

— Hon. Z. A. Church, Judge. Suit ou a fraternal beneficiary certificate. There was a directed verdict for the plaintiff and a judgment thereon. The defendant appeals.

’Appeal from Webster District Court. — Hon. R. M. Wright, Judge. Action upon a parol contract, whereby the plaintiff undertook to clean out a certain drainage ditch at an agreed price $1.50 per rod. There was a verdict and judgment for the plaintiff for a part of his claim. The defendants appeal.

<p>Appeal from Story District Court. — IIon. C. Gr. Lee, Judge.</p> <p>Action for damages for interference with plaintiff in the performance of a building contract, and for causing delay in such performance to the injury of plaintiff. Defendant counterclaimed for damages for_ breach of the same contract. There was a verdict and judgment for the plaintiff, and defendant appeals.</p>

<p>Appeal from Franklin District Court. — Hon. Chaeles E, Albrook, Judge.</p> <p>Action for the construction of a will. Judgment- for defendants. Plaintiff appeals.</p>

— Hon. W. H. McHenry, Judge. Action at law to recover damages for personal injury. There was a directed verdict and judgment for the defendant, and plaintiff appeals.

— IIon. J. J. Clark, J udge: Action in equity to enjoin tbe maintenance of an alleged liquor nuisance. Decree as prayed, and defendants appeal.

— How. C. W. Ver- ‘ mirrion, Judge. Originarry this was au action in equity to enjoin defendants from cutting trees and committing other trespasses upon a certain ten acres of land in Wapello county. After defendants had answered claiming title to the property, plaintiffs amended their petition, asking that their title to the property be quieted, and that they have a decree for possession thereof.

R. M. Wright, Judge. In separate proceedings for the eodemnation by defendant of a right of way through two farms, each consisting of a tract of one hundred and sixty acres, it appeared that there was a life estate in each farm belonging to Elise D. McCaskey as widow of H. A. McCaskey, deceased, who had at one time been the owner in fee of both farms, and that the remainder was in these plaintiffs as heirs of said H. A. McCaskey.

— Hon. C. E. Albrooic, Judge. The nature of this litigation and statement of the material facts will be found in the opinion.

<p>New trial: discretion. The action of the trial court in granting a 1 new trial is the exercise of a discretion seldom interfered with on appeal.</p> <p>Same: criticism of argument. Criticism by the court of counsel’s 2 argument to the jury is also a matter of discretion.</p>

— Hon. W. R. Green, Judge. The defendant was accused of having committed lewd and lascivious acts with a child under 13 years of age, and appeals.

<p>Jurors: disqualification: judicial discretion. The disqualification 1 of a juror because of an opinion as to the guilt of defendant is a matter resting largely within the trial court’s discretion. And where, as in this case, the juror staled that he had formed an opinion based upon what had been told him, which might be hard to lay aside, and might to some extent influence his verdict, but that he thought that he could try .the case and render a verdict on the evidence alone there was no abuse of discretion in overruling a challenge to him; but although the court’s action in overruling a challenge in such cases may be technically right it is better to give the defendant the benefit of the doubt if the juror discloses such a condition of mind as to render his qualification a fair question of doubt.</p> <p>Criminal law: murder: evidence. In this prosecution for murder it 2 was not prejudicial error for the court to exclude testimony that a third person had admitted hilling the deceased when he had himself testified to that fact, and when the jury evidently believed the state’s eye witnesses who testified that the defendant struck the fatal 'blow.</p> <p>Same: evidence: exhibits. Where the defendant, as in this case, 3 attempted to show that deceased was killed by a blow upon the head at another place, and which inflicted an injury different from that relied on by the state, it was proper to receive in evidence the skull of deceásed and for the jury to take the same to the jury room, to aid in determining the exact location and character of the wound which killed deceased.</p> <p>Same. Where it was shown that accused struck decedent with a 4 club of the same general description as the one found where defendant had been after the affray, the club so found was sufficiently identified to permit its admission as an exhibit.</p> <p>Same: instructions: use of deadly weapon. Where the undis5 puted evidence showed that death resulted from the use of a deadly weapon, an instruction that if a person make an assault and death ensues, the presumption is warranted that he intended •to murder if there was no evidence to show that he intended lesser injury, was not erroneous because omitting any reference to the use of a deadly weapon.</p> <p>Same: refusal of instructions. The refusal of a requested instruc6 tion which is fully embodied in those given by the court is not erroneous.</p> <p>Grand jurors: disqualification. A grand juror is not necessarily 7 disqualified because he had formed an opinion as to the guilt or innocence of defendant providing the facts which he had heard were true, where he stated that such opinion would not prevent him from rendering a true verdict on the evidence.</p> <p>Same: verdict: passion and prejudice. Where the evidence is sufficient to support a verdict of guilty and the record bears no evidence that the jury was prejudiced against defendant himself, although the facts detailed may have aroused the prejudice of the jury against the crime itself, the verdict will not be disturbed on the ground of passion and prejudice.</p>

— Hon. K. E. Wilcockson, Judge. The defendant was convicted of having entered into a conspiracy to do an illegal act injurious to public morals and appeals.

<p>Drainage: establishment of districts: subsequent annexation of 1 territory. Section 1989-354, as amended by chapter 119 of the Thirty-Third General Assembly, authorizes the annexation of territory to an established district after the improvement in the original district has been completed, the same as prior thereto; and this construction of the statute does not supplant section 1989-325, which has reference to those cases where the improvement has proven insufficient to drain all the lands necessarily tributory thereto.</p> <p>Same: establishment of subdistricts : statutes. Section 1989-323 2 provides for the establishment of a subdistrict composed of lands within the limits of a drainage district previously established; but it is not necessary for the annexation of territory that it be situated wholly within an original district. By the provision of section 1989-354, lands outside the original district may be annexed and made a part thereof, and they then become subject to the provisions of the previous statute the same as though originally within the district, and a subdistrict may be formed therefrom.</p> <p>Same: jurisdiction. Where a drainage district was established by 3 the joint boards of two counties, the organization of a subdistrict therein is subject to the jurisdiction of the two boards, although the land lies wholly within one county.</p>

<p>Criminal law: declarations of conspirators : admissibility. Before 1 the declarations of one alleged confederate are admissible against another it must appear that a confederation existed at the time of their utterance. On this prosecution for burglary the rule was satisfied by a showing that they were together at the burglarized premises and came away carrying stplen property; if, however, there was any error in admitting the evidence in this case it was not prejudicial, for defendant admitted all the declarations it tended to establish.</p> <p>Same: burglary: indictment: description of offense. Where the 2 defendant conceded that he committed an act constituting the crime of burglary, the fact that the indictment charged him with breaking and entering a railway car while the proof showed that the structure entered was the box of a freight car, with the trucks removed and occupied by trainmen as a boarding house, was not such a variance as to require a reversal; for even though there was a misdescription of the place the indictment was subject to amendment, and a remanding of the case for that purpose would be of no advantage to defendant.</p> <p>Same: instructions: assumption of fact. The court in a criminal 3 case may assume and treat in its instructions as true a particular evidential fact which both parties admit, and concerning which there is no controversy. Thus as both parties treated the structure burglarized in this case as a railroad car, the instruction that the jury should find such to be the fact did not constitute an interference with the province of the jury, and was not prejucial to the defendant.</p>

<p>Explosive appliances: defective gas plant: evidence. In this ac-1 tion for injuries inflicted by the explosion of an acetylene gas tank, the evidence is held sufficient to warrant a finding that the gas plant was defective at the time it was purchased by plaintiff, in that the carbide cartridge would not fall easily into place when refilling the tank, owing to a small piece of solder attached to the seam of the inner side of the sheath of the cartridge.</p> <p>Same: contributory negligence. Although the carbide cartridge might. 2 have been placed in position by manipulation, notwithstanding the obstructing solder, the plaintiff was not guilty of contributory negligence as matter of law, under the circumstances shown, because failing to so manipulate the cartridge or remove it entirely before the explosion, but that question was for the jury; nor was plaintiff’s wife who accompanied him to the plant in the basement for the purpose of assisting in refilling it guilty of negligence as matter of law, in trying to escape from the basement up a stairway through which she had entered it for-the purpose of avoiding the danger from an explosion.</p> <p>Appeal: review of questions not raised below. Questions not 3 raised in the trial court will not be reviewed on appeal. Thus in this case the question of defendant’s contention that plaintiff was not entitled to recover for the wife’s injury, because she was not a party to the contract for the purchase of the lighting plant can not be considered on this appeal, because not raised in the lower court.</p> <p>Expert evidence, ft was competent in this action for an expert in 4 the manufacture and installing of gas plants to testify that if the solder was in the cartridge when made, and caused the shell to stick, it was not perfect manufacture, and that the solder found in the cartridge could not have gotten there during the explosion.</p>

— How. Hugh Brennan, Judge. Action at law to recover damages for the death of Geo. Hraha, Jr., due to a fall of slate in defendant’s mine. Trial to a jury, verdict and judgment for plaintiff in the sum of $3,850, and defendant appeals.

<p>Patents: sale of exclusive rights : false representations : rescis1 sion. The transfer of an exclusive right under a patent for certain territory is an assignment of the patent itself to that extent and vests title therein in the assignee, under which he may sell the same either in whole or in part or maintain an action to restrain its infringement; but the sale and assignment merely of the right of manufacture and sale of the product to be produced under the patent does not create in the assignee any right in the patent itself; and representations made, either written or oral, that the assignor owns and transfers an exclusive right under the patent, when he in fact owns a mere license to manufacture and sell the product, is a material misrepresentation which will authorize the assignee to rescind the contract of purchase, regardless of any fraudulent intent on the part of the assignor.</p> <p>Same: ratification. The right of an assignee of a patent to rescind 2 his contract on the ground of false representations of the assignor is not affected by any ratification by the patentee himself, after the assignee has discovered the fraud and repudiated the contract: Nor will the fact that the assignee might have perfected his title as against the patentee affect the right of rescission, as he is not bound as matter of law to follow that course.</p> <p>Same. The fact that the assignee of a patent accepted under false 3 representations may have received some benefit, or manufactured articles pursuant to the assignment and prior to the discovery of fraud, will not affect the right of rescission, where he offered to return the benefits received.</p> <p>Same: proof of knowledge of fraud. It is not necessary in an 4 equitable action to rescind a contract on the ground of false representations to prove knowledge of the fraud by the other party.</p>

<p>Master and servant: negligence: proximate cause. Failure to 1 properly guard dangerous machinery as required by statute is negligence; and where the plaintiff, while attempting to oil the machinery with which he was at work, slipped on an icy floor and thereby thrust his hand into the unguarded cog wheels of the machine, -the defendant’s negligence in failing to guard the wheels may properly have been found the proximate cause of the accident.</p> <p>Same: contributory negligence as a defense. Contributory negli2 gence is a defense to an action for injuries resulting from a master’s violation of the factory act.</p> <p>Same: assumption of risk. A servant does not assume the risk of 3 injury from machinery left unguarded in violation of the statute, where it is no part of his duty to provide guards therefore.</p> <p>Same: contributory negligence. In this action the question of 4 whether plaintiff was negligent in oiling machinery with which he was at work and while it was in motion, and under conditions not necessarily such as to cause apprehension of danger and to suggest the adoption of a different method of oiling machines, was for the jury.</p> <p>Same. One is not necessarily negligent in adopting a dangerous 5 method of accomplishing a purpose when a safer-way is open to him, but this question depends on the circumstances.- In this case the plaintiff was injured while performing a service in the manner shown him by the foreman, and the question of whether the injury was the proximate result of some fault on his part was for the jury.</p>

—Hon. Hugh Brennan, Judge. Action at law to recover agents commissions on sale of real estate. Verdict and judgment for plaintiff, and defendant appeals.

<p>Compromise and settlement: conclusiveness: evidence. In this 1 action to cancel a note and mortgage, given in settlement of a claimed balance due defendant, on the grounds that the same were without consideration and induced by fraud, the evidence is held to show that the claimed settlement between the parties of previous indebtedness was not conclusive but was made in reliance upon statements of the mortgagee, and that if his computation was not cprrect he would make it right.</p> <p>Same: amount of indebtedness: fraud: evidence. The evidence 2 is also held to support a finding that the note and mortgage were excessive because of defendant’s false representations as to the amount of his claim, and that the court was justified in ordering credit thereon for the excess.</p>

<p>Negligence: proximate cause. To charge the owner with legal 1 liability for the injury of one upon his premises it must be shown that he was guilty of negligence and that such negligence was the proximate cause of the injury.</p> <p>Same: dangerous machinery: injury to stranger: liability. The 2 owners and proprietors of shops and factories may be liable for negligence by exposing and leaving in an unguarded condition in an open or public place dangerous machinery likely to attract children, where their presence may be known or reasonably apprehended ; but such owners or proprietors are not precluded from the right to use their appliances and machinery in their own buildings and upon their own premises as may best serve their advantage, and when neither expressly inviting children to enter there or to put themselves in a place of danger they will not be liable for an injury not wantonly inflicted.</p> <p>Same: duty to guard machinery : wanton carelessness : evidence. 3 In this action for injury to a boy while playing upon defendant’s premises the evidence is held insufficient to show such permission or indulgence of the boys in and about the place as to charge defendant with the duty to lock its doors and guard its machinery; or to show wanton or reckless starting of the machinery with knowledge that the plaintiff was in a place of danger.</p>

— Hon E. P. Howell, Judge. Action in equity for partition of real estate. There was a decree for the defendant, and plaintiffs appeal. The material facts are stated in the opinion.