Volume 155 — Iowa Reports

— Hon. B. M. Wright, Judge. Action in equity for the construction of the will of' Mary Burwell, deceased. Decree as prayed by plaintiffs, and defendants appeal.

<p>Appeal from Plymouth District Court. — Hon. Wm. Hutchinson, Judge.</p> <p>Action in equity to establish a trust in real estate. Demurrer to petition sustained and plaintiff appeals.—</p>

<p>Appeal from Woodbury District Court. — Hon. R. R. Gay-nor, Judge.</p> <p>Suit in equity by the plaintiffs named and others to recover of the defendants and P. O. Molan on account of fraud iu the purchase of lands. There were judgments against the defendants Ivens and Andre, from which they appeal.</p>

— Hon. P. C. Platt, Judge. Under an indictment for incest alleged to have been committed by having camal intercourse with his daughter, the defendant was tried and convicted and sentenced to imprisonment in the penitentiary. Prom this conviction the defendant appeals.

— Hon. W. H. McHenry, Judge. - Action to recover for injuries sustained by plaintiff while riding in a passenger elevator operated in an office building belonging to and under the control of the defendant estate. There was a verdict for the plaintiff for $4,000, and from judgment on this verdict the defendant appeals.—

<p>Eminent domain: private use of property: injunction: collateral.</p> <p>1 attack. The question of whether condemnation proceedings are in fact unauthorized, because the land to be taken is to be used for a purely private purpose, can be raised and determined in the condemnation proceedings and on appeal therefrom; and an independent action in equity to enjoin the use of the property based upon that question alone is a collateral attack upon the condemnation proceedings and will not lie.</p> <p>Same: right of way: unauthorized use: evidence. The assignees 2 of a lease have no greater rights thereunder than their assignors. So that where the assignors acquired a right of way for track purposes, limited to the life of the lease and solely for constructing a railroad for a purely private purpose, a subsequent use of the-right of way by the assignees of the lease for general passenger and freight business was unauthorized; and where the lease itself did not specify the purpose for which the road was originally intended parol evidence was admissible to show such purpose.</p> <p>Same: estoppel. Where it was sought to enjoin the use of a rail-3 road for carrying passengers and cement products, the right of way having been originally acquired for sole use in connection .with a coal mine, the plaintiff was not estopped from resisting a diversion of its use by the fact that he knew of the construction of the cement plant, where there were other convenient railroads with which it might be connected, and proper objection was made to condemnation proceedings for acquiring a strip of land necessary to connect with the track, and such public use of the right of way was not begun until after commencement of this action to enjoin the same.</p>

— Hon. A. P. Barker, Judge. In a proceeding for the probate of the will of Mary Hannaher, deceased, Patrick Hannaher, her only son, named in the will as executor, being the proponent, there was a contest by her daughters on the grounds of want of mental capacity, fraud, and duress.

— Hon. R. M. Wright, Judge. This is a controversy over the distribution of attorney’s fees growing out of a contract for a part of the recovery in the case of Wells v. W. U. Tel. Co., which case finally reached this court, and was disposed of by an opinion reported in 144 Iowa, 605. The trial court made a division according to the terms of the contracts entered into between the attorneys, and plaintiffs appeal. —

<p>Fences: order of fence viewers: validity. An order of township l trustees as fence viewers, requiring one of two adjoining landowners to repair one-half of a partition fence, is not void because making no reference to the other half of the fence and containing no finding that the same is adequate.</p> <p>Same: collateral attack. An order of fence viewers can not be 2 collaterally attacked in an action to recover the value of repairs, because of a failure to comply with the order to repair a portion of the fence, except on the ground of total want of jurisdiction in the fence viewers to make the order.</p>

<p>Appeal from V/oodbury District Gouri. — Hon. David Mould, Judge.</p> <p>Action at law to recover upon a policy of fire insurance. There was a directed verdict and judgment for defendant, and plaintiff appeals.</p>

— Hon. O. H. Kelley, Judge. In a proceeding instituted by the defendant to condemn a right of way for the extension of Sixth street in that city across the depot grounds of the plaintiff, there was an award of damages by the commissioners, and the plaintiff brought the case into the lower court by an appeal.

Appeahfrom Fayette District Court. — Hon. A. N. Hobson, Judge. Suit in equity to enjoin and abate a liquor nuisance. The trial court by its decree dismissed the petition as against the defendant Romberg, the owner of the premises, but awarded perpetual injunction as against the other defendants, and they appeal.

<p>Mortgages: payment of taxes: duty of mortgagee. A mortgagee 1 is under no obligation to pay taxes upon the mortgaged property, under a provision in the mortgage that he may do so and recover the amount from the mortgagor.</p> <p>Same: foreclosure: liability of mortgagor. It was no defense 2 available to the mortgagors in this foreclosure that the mortgagee extended time of payment to the grantee of the mortgagors without their knowledge or consent, where the contract under which they conveyed required them to obtain an extension of the loan.</p> <p>Same: insurance by mortgagee. The right of a mortgagee to carry 3 insurance upon the property at the expense of the mortgagor does not create any affirmative duty on his part to obtain insurance.</p> <p>Same: removal of improvements : liability of mortgagee. A mort4 gagee not in possession can not be held liable for the removal of improvements from the property by another.</p> <p>Same: limitations: laches. This action to enforce personal lia5 bility against the mortgagors after conveyance of the property was not barred, although service upon the mortgagors was not made within ten years from maturity of the note, as they were nonresidents of the state for a portion of the intervening time; and as the mortgagee did not learn of their return to the state until a short time before service was had, and as the mortgagors had no reason to believe that the debt was paid, their plea of laches was not available to them.</p> <p>Alteration of instruments: evidence. The name of a subsequent 6 purchaser of mortgaged property, appearing in such a place on the mortgage note as to indicate that it was a mere memorandum made by the payee, was not such an alteration of the instrument by an additional signature as would affect the liability of the makers thereon.</p>

<p>Appeal' from Emmet District Court. — Hon. A. D. Bailie, Judge.</p> <p>Action at law for damages for breach of contract.</p> <p>There was judgment for the plaintiff, and the defendant appeals.</p>

Certiorari proceedings to review the action of the defendant judge in making an order for a change of venue to the district court of Page county, Iowa.

— Hon. O. D. Wheeler, Judge. Action on account brought in the justice court. Judgment was entered for plaintiff. Defendant appealed to the district court. After two trials in the district court, each of which resulted adversely to him, the plaintiff moved to dismiss the appeal. His motion was overruled by the district court, and from such order he appeals to this court.

<p>'Appeal from Pottawattamie 'Disirict Gourt at Avoca. — Hon. E. B. Woodruff, Judge.</p> <p>Proceedings to enjoin plaintiff from executing or enforcing a judgment for the possession of certain real estate. A temporary writ or restraining order was issued which was dissolved upon motion, and plaintiff’s demurrer to defendant’s petition for the restraining order was sustained. Defendant Rust appeals.</p>

<p>Livery stable keepers: contract of hire: limitation of right to hire. A livery man is not bound to let his rigs to everyone who seeks to hire them, but he may by contract limit the service to parties named therein, and the personal right thus created is not transferable without his consent.</p>

— Hon. George H. Castle, Judge. In this action, brought by plaintiff to recover balance of compensation due to him under a written nontract with defendant, there was an equitable answer setting up grounds for reformation of the contract. The issue raised by a reply to this answer was tried on evidence, and a decree was entered in defendant’s favor granting a reformation. From this decree, the plaintiff appeals.

<p>Contracts: personal services: evidence. Where one contracts to 1 have work done at his own expense the law implies a promise to pay, unless it is shown that the same was to be performed without any intention of accepting payment. In the instant case the evidence is held to require the submission of the questions of promise to pay and intent to demand payment.</p> <p>Same: evidence. In this action, upon an account for services, evi2 dence that plaintiff told defendant before commencement of suit that his account would not have been as large had defendant not testified as he did in another action was an admission, which should have been received over an objection that it occurred during an attempt at a compromise and settlement.</p>

<p>Intoxicating liquors: canvass of consent: publication of notice. 1 The publication of a notice of the canvass of a statement of general consent to the sale of liquor in newspapers which must have been designated as the county official papers, had the supervisors performed their duty in designating official papers, was a sufficient notice to comply with the statute regarding publication of such notice.</p> <p>Same: statements of consent: withdrawals: reinstatement. Pe2 titioners having signed a general statement of consent to the sale of intoxicating liquor may subsequently reconsider their action and withdraw their names from such, statement; but having so withdrawn their names and the time to again sign a consent pe-, lition having passed, they can not reinstate their names by the ' filing of withdrawals of such withdrawals.</p> <p>Same: comparison of names with poll books. Names signed to a 3 petition of general consent must correspond with the names appearing on the poll books of the last general election filed with the county auditor, and although the poll books are duplicates, one of which was filed with the city clerk, still such poll book is not competent for the purpose of comparison, as the statute requires that the book used for that purpose shall be the one filed with the county auditor.</p> <p>Ladd and Evans, JJ., dissenting.</p> <p>Same: affidavit: reputable person: evidence. The statute re-4 quires that the affidavit accompanying a statement of consent in proof of the signatures must be made by a reputable person; but the mere fact that the affidavit contains a false statement, or that the affiant had previously been convicted of crime does not necessarily show that he was not a reputable person.</p> <p>Same: appeal. A citizen and taxpayer of the county may appeal 5 from a judgment of the court reversing a finding of the board that the statement of consent was insufficient, where he appeared in the district court for the purpose of sustaining the action of the board.</p>

<p>Insurance: casualty policy: actual loss: payment: evidence. Under a contract of indemnity against actual loss, and not liability-alone, recovery can not be had except upon proof of actual loss. In this action the evidence is held to show that the plaintiff under an employers’ liability contract paid a judgment recovered for the death of an employee with its own funds, and that defendant could not claim nonliability on the contract on the ground that the payment was by plaintiff’s stockholders and not plaintiff itself.</p>

— Hon. E. B. YVoodrupp, Judge. This is a controversy over a note which plaintiff claims was given him by Mary E. Mallory, deceased, just prior to her demise. The trial court awarded the note to plaintiff, and defendants, Edward B. Mallory, husband of the deceased, and Earl B. Mallory, her son, appeal. Defendant Christensen is the maker of the note, and stands indifferent as between the other parties.

— Hon. A. D. Bailie, Judge. Suit to recover commissions. Trial to a jury, and verdict and judgment for the plaintiffs. The defendant appeals.

<p>Appeal from Gass District GouH. — IIon. E. B. Woodruff, Judge.</p> <p>Suit in equity to enjoin the levy of an execution and the enforcement of a judgment rendered in favqr of one Theo. II. Brown against intervener Eloto. The trial court granted' the relief prayed, and defendant appeals.</p>

<p>Appeal from Wapello District Court. — Hon. D. M. Anderson, Judge.</p> <p>Action at law to recover damages from the defendant, a common carrier, for injury and loss to property in course of transportation. There was a judgment for plaintiffs, and defendant appeals.</p>

— How. C. G. Lee, Judge. Dependant was indicted for the crime of an assault with, intent to murder. Bpon a second trial, the case having once before been in this court, he was convicted of an assault with intent to commit great bodily injury, and was sentenced to the county jail for the period of one year. He appeals. —

— Hon. L. E. Fellows, Judge. Action in equity to remove a cloud from plaintiff’s title to land occasioned by the record of a mortgage given thereon by a prior owner, which mortgage is alleged to be barred by the statute of limitations. Decree as prayed, and defendant appeals.

<p>Appeal from Polk District Court. — IIon. AY; H. McHenry, J udge.</p> <p>Action to recover damages for- personal injuries received by plaintiff while upon a passenger train which was being operated.by the receivers of the Chicago Great AYestern Railway Company. The defendant, the Chicago Great Western Railway Company, is sought to be held as purchaser of the property from the receivers in virtue of its contract with the receivers. The trial court sustained a demurrer to the plaintiff’s petition, and he appeals.</p>

<p>Judgment by. Default: vacation : statutes. A judgment entered in 1 the absence of defendant, on issues joined and evidence adduced, is not a judgment by default within the meaning of the statute; and the statute providing for the setting aside of defaults has no application in such cases.</p> <p>Same. Where litigants are deprived of an opportunity to be heard on 2 the issues, either by mistake, misunderstanding or casualty, the court has inherent authority to make such order as will afford opportunity for a hearing on the issues at the same term, although there is no express statute to that effect. Thus where defendants’ attorneys after answer arranged with a resident attorney to inform them of the time the cause was assigned for trial, and thereafter the resident attorney was suddenly called out of the state and the cause was assigned and tried without the knowledge of defendants or their counsel until after entry of judgment; Held, that a motion filed during the term to set aside the default and judgment ■should have been granted.</p>

Certiorari from Polk District Court. — Hon. Lawrence De Grave, Judge.

— Hon. Clarence Nichols, Judge. Proceedings for the removal of Arminda C. Fry, as administratrix of the estate of Ira H. Fry, deceased. The trial court ordered the removal of the administratrix, and she appeals.

<p>Municipal Corporations: sidewalks : contributory negligence. In 1 this action for injury caused by a hole in the sidewalk from which a post had previously been removed, the fact that plaintiff himself sometime previously removed the post was not material, further than to show his knowledge of the. condition of the walk and the danger naturally to be apprehended; as in merely removing the post he was not guilty of negligence as a matter of law.</p> <p>Evidence: conclusions : discretion. The inquiry by plaintiff of a 2 witness in an action for a sidewalk accident, if in passing over the walk he had noticed any defects therein, is objectionable as calling for a conclusion; but is less so when coming from the city for the purpose of showing negatively that there was nothing unusual or noticeable in the condition of the walk, and the permission of the inquiry by the city is within the discretion of the court.</p> <p>Appeal: evidence: objections: review. Where testimony upon a 3 former trial is read by agreement, the terms of which do not appear, it is the duty of the appellate court to pass upon objections ■ to evidence as though the rulings were made upon the oral examination of the witness, where it is not claimed that the objection violates the agreement.</p>

— Hon. Z. A. Church, Judge. Action to recover a sum of money alleged to be due plaintiff under a contract with the defendant school district, of which plaintiff was at one time the treasurer.

'Appeal from Wapello District Court. — Hon. D. M. Anderson, Judge. 'Action to recover the purchase price of certain marble sold and delivered to defendant under an oral contract. The defendant admitted the making of the contract and the delivery of the marble, but by way of counterclaim asked damages on account of delay in furnishing the marble and for negligence in the manner of laying it in the building for which it was intended.

<p>Officers: acceptance of second office: incompatibility. If a person, 1 while holding a public office, accepts another incompatible with the first he thereby vacates the first office; and-in determining the question of incompatibility 'inherent inconsistency in the nature and duties of the two offices, when considered in the light of public policy, is of controlling importance, rather than physical inability to discharge1 the duties of both offices at the same time.</p> <p>Same: mayor and justice of the peace. The statutes of this state 2 contemplate three judical officers in each township embracing an incorporated city or town, two justices of the peace and a mayor who, in a large measure have concurrent jurisdiction, so that the duties of a mayor and justice are incompatible, when viewed in the light of public policy as expressed in the statutes creating the offices and defining the powers, and duties of each.</p>

<p>Appeals from, Shelby District Court. — Hon. E. B. Woodruee, Judge.</p> <p>Actions to recover moneys alleged to be due on .a school district treasurer’s bond. Judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from Van Burén District Court. — Hon. E. W. Eioherlbergee, Judge.</p> <p>Action to recover damages for personal injury. Judgment for plaintiff, and defendant appeals. The material facts are stated in the opinion.</p>

W. E. Greene, Judge. Action for damages for alleged libel by the publication of two libelous articles concerning the plaintiff. The defendant admitted the publications, and pleaded that the articles complained of were fair and accurate reports of judicial proceedings, and were therefore privileged, and pleaded further that the matters published were in fact true. There was a verdict for the plaintiff, and the defendant has appealed.

— Hon. Hugh Brennan, Judge. Action at law to recover damages for injuries sustained by plaintiff, due to a fall upon one of the sidewalks of the defendant city. Trial to a jury, directed verdict for defendant, and plaintiff appeals.

<p>Appeal from the Sac District. Court. — F. M. Powers, Judge,</p> <p>Action at law to recover damages due to injuries received by plaintiff in being struck by an automobile operated by tbe defendant upon a street in tbe city of Storm Lake. Verdict and judgment for plaintiff in the sum of $200, and defendant appeals.</p>

<p>Attorney’s Liens: notice: sufficiency. In giving notice of an 1 attorney’s lien it is not necessary that the notice state the terms of his contract of employment, but if the notice is sufficient to estab- . lish a lien on the sum due his client, the adverse party then settles with the client at his peril and can not assume that the lien of the attorney is limited to reasonable compensation regardless of the terms of his contract.</p> <p>Same: enforcement of lien. A judgment against his client in 2 favor of an attorney for his compensation will not affect .the right to enforce his lien as against the adverse party.</p> <p>Same:'amount of-recovery. Under a contract of employment by 3 which an attorney is to receive from his client for services a stated portion of the amount recovered or received in settlement, the adverse party served with notice of the lien is liable to the attorney for his proportion of the sum involved in'the settlement with the . client, irrespective of the amount actually. paid the client under the settlement.</p>

— Hon. Z. A. Church, Judge. Action on contract to recover the contract price per foot for drilling a well. The contract was only partly performed; plaintiff alleging that he was prevented from full performance by the refusal of defendants to furnish “necessary casing.” The defendants answered with a general denial, but admitted the execution of the contract and pleaded a counterclaim for breach of the same. At the close of the evidence each party moved for a directed verdict.

<p>’Appeal from Linn District Court. — Hon. Milo P. Smith, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Linn District Court. — Hon. Milo P. Smith, Judge.</p> <p>A Decree of divorce on the ground of cruelty was prayed in the petition. The defendant answered, and in a cross-petition a like decree was sought on the same ground and because of habitual drunkenness on the part of plaintiff. On hearing a decree of divorce was entered on the cross-petition, but, as the division of property was not satisfactory to defendant, she appeals.</p>

<p>Criminal law: robbery: evidence. In this prosecution for robbery the evidence is reviewed and held sufficient to support conviction.</p>

— Hon. Z. A'. Church,. Judge. Action at law to recover damages for injuries received’ by Wilma Stokes, due to being thrown from a buggy; the horse to which it was hitched having become frightened, as is claimed, by reason of a show wagon, which was allowed to remain on one of the streets in the defendant city. Trial to a jury, verdict and judgment for defendant, and plaintiff appeals.

— Hon. Milo P. Smith, Judge. This is a contest over the probate of a will of Maurice Cahill, Sr. deceased. The objections interposed were want of testamentary capacity; and the contestants asked the probate of a prior will. Upon trial to a jury there was a verdict finding Cahill competent on August 4, 1908, to make a will, and the paper executed on that date as his last will and testament was admitted to probate. Contestants appeal.

<p>Appeal from Harrison District Court. — IIon. E. B. Wood-burr, Judge.</p> <p>Action to recover damages for the alleged wrongful act of defendants in cutting openings through a highway, embankment, thus permitting surface water to flow upon and across the plaintiff’s land, with the result that his growing crops were seriously injured! There was a verdict for plaintiff in the sum of $625.27, and from a judgment on this verdict the defendants appeal.</p>

<p>Appeal from Linn District Court. — Hon. Milo P. Smith, Judge.</p> <p>The defendant was indicted for the murder of his wife, and, being convicted of. manslaughter, appeals.—</p>

— Hon. F. M. Powers and Z. A. Church, Judges. ®N the petition of Albert and Frederick Winkler, •and over the objections of Cora L. Lyons and others, a. drainage district was established by the board of supervisors. Also commissioners assessed the costs of the improvement against the several tracts of land benefitted; and to the report filed by them Mrs. Lyons and others interposed objections, which were overruled, and the portion of costs assessed against her land increased.

— Hon. C. B. Robbins, Judge. Action for damages brought in the Superior Court of Cedar Rapids against the defendants jointly. It is averred that they did willfully, and with intent to extort, present to his employer railway company a wage assignment order, and did' thereby cause plaintiff to be discharged from the service. The defendants were both nonresidents of Linn county; Lutz being a nonresident of the state, and Bothell being a resident of Johnson county.

<p>Appeal from Polk District Court. — IIon. W. H. McHenry, J udge.</p> <p>Action to recover damages for personal injury. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Crawford District Court. — Hon. Z. Á. Church, Judge.</p> <p>The facts are stated in the opiniom</p>

— Hon. Thos. R Maxwell, Judge. This is a proceeding for the construction of the will ■of Windsor Richards, deceased. It is claimed that the will .gave his widow, Elizabeth, also deceased, an estate in fee-of all his real estate and all his personal property absolutely.

— Hon. Chas. E. Eansier, Judge. Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. ' B. M. Weight, Judge. Action for reformation of a deed. Tbe defendants by cross-petition ask that the title to the property in controversy be quieted in them and that they may have parition thereof. The intervener, claiming title under plaintiff, joins in praying for reformation of the deed, and by way of answer to the cross-petition plaintiff and intervener ask that title be quieted in them.

'Appeal from Carroll District Court. — Hon. F. M. Powers, Judge. Action at law to recover • tbe price of four pianos alleged to bave been sold tbe defendant. There was a directed verdict and judgment for tbe plaintiff, and defendant appeals.

— Hon. W. N. Treichler, Judge. Action in equity to obtain a construction of tbe will of James B. Wilson, deceased. From the findings and decree entered therein, two of the defendants, William M. Wilson and James R. Hanna, appeal.

<p>Adoption of children: statute. The statute authorizing the exe1 cution of adoption papers by the mayor of a city or the clerk of the district court, where a child has been abandoned by its parents, does not confer authority to so act upon the mayor of a town.</p> <p>■Weaver, J., dissenting.</p> <p>Same: ineffective articles given force as a contract. Although 2 an instrument may be insufficient to effect the statutory adoption of a child, still, where it has been long recognized and acted upon, and the consideration therefor has been rendered, it may be given force as a contract, under which the child may assert an interest in the estate of its adoptive parent. And such is the effect given the instrument in the instant case.</p> <p>Estates of decedents: widow’s homestead right: evidence. A 3 widow’s homestead right is one of occupancy only and may be lost by abandonment, and when once lost the party entitled to the fee may enforce such right unincumbered by the homestead. The evidence in this case shows an abandonment of the homestead right by subsequent marriage and residence in a foreign state, although but for a brief time.</p> <p>Same: domicile of wife. The common law rule that the legal set-4 tlement and domicile of the wife follows that of the husband prevails in this state.</p>

<p>Intoxicating liquors: nuisance: good faith sales as defense. A i sale of liquor by one not holding a permit to any person under any circumstances or for any purpose is unlawful; and his good faith or reasonable effort to avoid imposition does not constitute a defense to an action to enjoin the nuisance.</p> <p>Same: injunction : discretion : costs. The court may in its dis-2. cretion refuse a permanent injunction restraining the illegal sale of liquor, where it satisfactorily appears that the nuisance has been in good faith abated by the defendant, which is in no sense a merely formal act for the temporary purpose of shelter ' while threatened injunction was impending; but this discretion is not unlimited and is rarely exercised in favor of a defendant clearly shown to have violated the law, except when accompanied by the taxation of all costs against defendant.</p>

— Hon. James W. Bollinger, Judge. Action in equity for the specific performance of a contract for the conveyance of real estate. Judgment for the plaintiff. The defendants appeal.

<p>Appeal from,' Sac District Court. — Hon. Z. A. Church, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Adulteration of products: statutes. No purity test for boiled linseed 1 oil is provided for by section 2510-e of the Code Supplement; the test for boiled oil is the temperature at which it must be heated: So that one exposing for sale or selling boiled linseed oil, composed partly of linseed oil and partly of petroleum, is not guilty of a violation of the statute because the same was not chemically tested for purity.</p> <p>Same: information: sufficiency. The recital in an informa2 tion “said boiled oil being misbranded and- adulterated” was not the allegation of any fact, but' the mere conclusion of the pleader; and failed to charge' a violation of the statute requiring any vessel containing the oil to be distinctly marked as pure linseed oil raw or boiled.</p>

<p>Appeal from Webster District Oourt. — Hon. R. M. Wright* Judge.</p> <p>StiiT to recover personal injuries. Verdict 'and judgement for plaintiff. Defendants appeal.</p>

<p>Certiorari proceedings to the Linn District Court.</p>

<p>Criminal law: larceny :. included offenses. While the crime of 1 simple larceny is included in the crime of larceny from a dwelling house in the night-time, still where the evidence clearly shows that the defendant is either guilty or not guilty of the greater offense, omission to instruct on the offense' of simple larceny was not erroneous.</p> <p>Same: larceny: evidence. In this prosecution for larceny from a 2 dwelling in the night-time the evidence is held to support a a verdict of guilty.</p>

— Hon. M. E. Hutchinson, Judge. The defendants were convicted 'of the crime of conspiracy to commit a felony, to wit, to kidnap the two minor children of the defendant Joe Dewey. The defendants .appeal.

— -Hon. H. Bank,' Jr., Jttdge. Action at law upon a promissory note purporting to have been -executed by defendant to William Van Sickle, Sr., on June 15, 1893. Various defenses were interposed, which will be referred to in the body of the opinion, and upon the issues joined the case was tried to a jury, resulting in a verdict and judgment for defendant, and plaintiff appeals.

<p>Criminal law: desertion: former conviction. The former conviction of a husband for willful neglect to provide for his destitute wife is not a bar to another prosecution for the same offense, after expiration of his former sentence.</p>

— Hon. W. E. Green, Jud^e. Indictment charging crime of burglary. Verdict of guilty, and from the judgment thereon the defendant appeal's.

<p>Appeal from, Carroll District Court. — Hon. M. E. Hutch-* inson, Judge.</p> <p>The defendant was indicted for burglary alleged to hare been committed on the night of October 15, 1911, in the city of Carroll. There was a trial to a jury and a verdict of guilty, and judgment was entered thereon. Defendant appeals.</p>

<p>Appeal from, Polk District Court. — Hon. Lawrence De Graee, Judge.</p> <p>The plaintiff was owner of -tike east forty-four feet of lots five and six in block G in Scott & Dean’s addition to the city of Des Moines. The lots faced on East Third street and for many years bad been • permanently improved with sidewalks, curbing, and brick pavement at a grade regularly established! in 1870. This 'grade -at the northeast corner of the lots was 21.35 feet above the datum plane, and 21.85 'at the southeast corner thereof. In May and June, 1910, the J. W. Turner Improvement Company, acting under a contract with the city, paved said East Third street in front of said lots “with one course of paving brick upon a foundation of concrete with cement top fillersaid pavement being permanent. This- was done without putting tlhe bed of the street to the established grade, -and said pavement was not laid so as to conform to the established grade but was laid and is from ten to eighteen inches above 'the same and also that omuéh above ■the old pavement mentioned to plaintiff’s great damage. The petition so alleged and also that, said pavement was of inferior quality and not properly laid, and that objections in writing on these grounds,, and also that the pavement was laid much above the established grade, were, duly filed with the city clerk before the city council assessed the costs thereof, and that it was not laid at the established grade was known to the members of 'the city council before making an -assessment. That body levied an -assessment ag’ainst the plaintiff’s lots July 13, 1910, for the cost of said pavement in front of the east ■ forty-four feet of lot five $357.80, and in front of the east forty-four feet of-lot six $357.27, and assessment certificates were prepared accordingly. These were about to be delivered to the contractor when this suit was begun praying that defendants be enjoined from so doing and from collecting the assessment. In the second case, Samuel B. Curtis et al. v. the. same defendants, the allegations were substantially the same save that plaintiff owned the east half of lots seven and eight immediately south of those of Shaver, "and (the elevation of the new paving was from two to ten inches above the established grade. In the third case, A. W. Hudson v. the same defendants, like averments are found in. the petition save that plaintiff’s lots one and two in Stewart & Huegles subdivision of lot one in block one of Scott fc Dean’s addition are on the opposite side of the street and next to East Walnut street, and the elevation of the new pavement is from ten to two inches above the established grade. A demurrer on the ground that the facts stated did not entitle the plaintiff to the relief prayed was filed in each case. These demurrers were -at first overruled, but on the following day the orders so ruling were set aside and the demurrers sustained. The plaintiff in each case refused to plead further and appealed.</p>

— Hon. J. P. Lyman, Judge. Suit in equity to enjoin defendants from cutting off plaintiff’s water supply and for other relief. A temporary writ was ordered, and upon trial to the court the temporary writ was dissolved, a permanent injunction denied, and plaintiff was found to be indebted to defendant for water furnished down to the time of the commencement of the suit in the sum of $55Y.05. Plaintiffs appeal.

!Appeal from Mahaska District Court. — Hon. B. W.. Preston, Judge. The defendant was indicted for the crime of murder and convicted of manslaughter. He appeals.

'Appeal from Iowa District Oourt. — IIon. B. P. Howell, Judge. Action brought against an administrator for board, washing, and horse feed furnished to the decedent for two hundred and thirty-four weeks between November 1, 1902, -and January 1, 1908. $3.50 per week is claimed for board, and $0.25 per week for washing and $50 for horse feed, making a total of $927.50.

<p>Nuisance: street obstructions: injunction. It will be presumed 1 that a city will perform its statutory duty of keeping streets and alleys free from nuisance; so that where the construction of a building the full size of the lot, not in itself a nuisance, may create a nuisance simply by the falling of water from the roof into an alley and there freezing, the city can not be enjoined from permitting the water to be thus discharged.</p> <p>Same: area-ways. A city may permit area-ways or entrances to base-2 ments and cellars from a public street or alley, where the same are properly protected and do not unreasonably interfere with the convenient use of such way.</p> <p>Party walls: reservation of easement: rights of parties. Where 3 the right to an entrance through a party wall, at a point not occupied by the adjoining building, was reserved in a deed to the adjoining lot, an acceptance of the deed with such reservation constituted a binding consent to the maintenance of the opening for the convenient use of the easement. And a decree requiring the closing of other openings in the party wall when the adjoining owner desired to use the same was a sufficient protection of plaintiff’s rights in that regard, over the objection that the wall was rendered useless as a party wall by reason of the openings.</p> <p>Same: construction of party wall. Where the middle line of an 4 extended party wall coincided with the middle line of the old .wall, but was somewhat thicker and heavier than the old wall, the court’s order in directing a removal of the additional thickness from plaintiff’s land is sustained, although the court expresses doubt whether as a matter of law defendant could be required to build the additional wall of the same thickness as the ■ old one, or if a heavier wall was required he could be compelled to build it all on his own land.</p> <p>Easements: termination. As a general rule an easement in a par-5 ticular building, coupled with no right in the soil upon which it stands, is terminated by a destruction of the building; but if the easement consists of a fight in or over a particular piece of land for the benefit of another tract of land, then the right is appurtenant to the land and not merely some structure thereon, and does not fail with the destruction of the building. In the instant case the easement is held appurtenant to and running with the land.</p>

'Appeal from Mahaska District Court. — Hon. K. E. ,Wii ■Action to recover stipulated percentage of fines collected resulted in the dismissal of the petition. The plaintiff appeals.

— Hon. John F. Oliver, Judge. The assessor of Sioux City assessed the Farmers’ Loan & Trust Company as follows: Capital, surplus, and undivided profits......$300,577 70 Less real estate otherwise assessed .....................$189,405 99 Less Hanford Produce Company stock otherwise assessed under merchant and manufacturing statute ............*....... 97,000 00 - 286,455 99 Balance hereby assessed...............$ 14,171 71 The offset for Hanford Produce Company stock held as…

— Hon, M. A. Roberts, J udge. Action for damages for tbe negligent killing of plaintiff’s intestate. There was a verdict for tbe plaintiff for $1,400, and defendant appeals.

— Hon. Henry Bank, Jr., Judge. Action in equity to enjoin a liquor nuisance. Defendants’ motion for a more specific statement was sustained in part, and, the plaintiff electing to stand on bis petition, judgment was rendered for defendants. Plaintiff appeals.

<p>Municipal corporations: street improvement: intersections: assessment of cost. The statutes relating to the improvement of streets and assessment of the cost against abutting property contemplate that the cost of paving street intersections shall be considered in connection with the entire improvement and taxed to the entire property abutting on that part of the street improved, though not situated-at the corner of the intersection.</p>

— Hon. F. C. Platt, Judge. Action for rent due, aided by landlord’s writ of attachment, levied on the property kept by the tenants in the leased premises. K. F. Mathews and DeEtt Pierce served notices of claims for labor performed within ninety days. F. O. Jackson filed a petition of intervention, in which he asserted title to the property under the foreclosure of two chattel mortgages and tendered in court an amount equal to the rent due.

— Hon. A. N. Hobson, Judge. Proceeding to determine the sufficiency of a statement of consent under the provisions of the so-called Mulct Law in and for Winneshiek county. The board of supervisors of such county held the statement of consent to be sufficient under the provisions of section 2449 of the Code. Upon appeal to the district court, this order was reversed, and it was adjudged that such statement of consent was insufficient under the provisions .of such section 2449.

— Hon. B. W. Preston, Judge. Action to recover a sum of money paid under duress. Trial to a jury. Verdict and judgment for plaintiff, and defendants appeal.

— Hon. Chas. E. Albrook, Judge. The plaintiff brought her action for separate maintenance. The defendant filed a cross-bill for divorce on the ground of desertion. There was a decree dismissing the plaintiff’s petition and awarding the decree of divorce to the defendant. The plaintiff has appealed.

'Appeal from Shenandoah Superior Court. — Hon. George H. Castre, Judge. Action by plaintiff against the defendant as a brokerage firm to recover the profits inuring to the plaintiff upon the purchase and sale of grain in his behalf. There was a trial to the jury and a verdict and judgment for the plaintiff, and the defendant appeals.

— Hon. W. H. McHenry, Judge. Action on an injunction bond to recover damages for loss of time and attorney fees expended in defending an injunction suit and obtaining >a dissolution of a temporary injunction. At the close of plaintiff’s evidence there was a directed verdict for the defendant. Plaintiff appeals.

— Hon. Hugh Brennan, Judge. Action at law to recoven damages for loss of interest on certain assessments for street improvement due to the unreasonable and negligent delay of the city in levying the assessments against the property benefited by the improvement. The trial court sustained a demurrer to the petition, and plaintiff appeals.

— ILon. E. O. Ellison, Judge. This is an action to set aside tbe will of Sarab J. Livingstone and the former probate thereof. At the close of plaintiff’s evidence, the trial court directed the jury to return a verdict for the defendants, which was accordingly done. From a judgment, dismissing the petition, the plaintiff has appealed.

Appeals from Taylor District Court. — Hon. H. K. Evans, Judge. In the first of the entitled actions recovery for unpaid purchase price of eighty acres of land was sought, and in the second the relief prayed was that title thereto be quieted in plaintiff. The suits were heard together on the same evidence, but separate decrees entered. The decree in the first was as prayed^ and in the second the petition was dismissed.

'Appeal from Boone District Court. — Hon. C. G. Lee, J udge. Action to recover back $259.44 with, interest, as the amount overpaid in the discharge of a note. Thene was a verdict for tire plaintiff in the amount claimed, and she ■appeals from 'the ruling of the court sustaining a motion for a new trial.

— Hon. Franklin C. Platt, Judge. Action to recover damages for personal injuries alleged to have been received by plaintiff .as the result of negligence of defendant in the management of his automobile. There was a verdict for the defendant, and from judgment on this verdict plaintiff 'appeals.

— Hon. Frank W. Eiciielberger, Judge. Action was brought by stockholders of the defendant corporation for the appointment of 'a receiver with directions that he sell the fair grounds of the association and distribute the proceeds among the stockholders. A temporary receiver ivas appointed by the court with direction that he cause to be published a. notice of dissolution and a notice of the appointment of a receiver to wind up the affairs of the corporation.

— Hon. R. P, Howell, Judge. Action to recover compensation for labor performed; damages for the wrongful discharge of plaintiff as a farm hand, and for the board of farm hands kept at defendant’s request. Defendant admitted that he was owing plaintiff $40 for labor performed, but denied all other claims.

— Hon. M. P. Smith, Judge. Appeal from an order refusing to 'dismiss plaintiff’s •cause of action and tbe entry of judgment 'dismissing tbe petition as amended on tbe merits.

— Hon. J. M. Parker, Judge. Proceedings to establish claims on behalf of the State against Jesse Cole, as administrator of the estate of Joseph M. Ford and Nathan Hacldey, 'deceased, respectively, and also to establish claims against Jesse Cole as guardian of 'Wan. W. Rood, a person of unsound mind, and a like claim against said Cole as guardian of one Philo Broekway, also a person of unsound mind. The trial court refused to establish the claims, and the State -appeals.

— Hon. W. N. Treichler, Judge. Indictment for murder in the first degree. The defendant was found guilty of manslaughter and judgement entered accordingly. Defendant appeals.

— Hon. O. D. Wj-ieerei:, Judge. Suit to recover part of the commission received by the defendants for the exchange of lands. Trial to a jury and verdict, and judgment for the plaintiff. The defendants appeal.

<p>Appeal from Polk District Court.- — Hon. Hugh Brennan, Judge.</p> <p>Suit to recover damages for a personal injury. Judgement for plaintiff. The defendant appeals.</p>

— Hon. R. R. Howell, Judge. The defendant was convicted before the mayor of peddling within the limits of the city without first having procured a license. On appeal to the District Court it was conceded by the defendant that he was engaged in peddling, within the terms, of an ordinance, and evidence was introduced -for the purpose of showing that the provisions of the ordinance were unreasonable.

!Appeal from Des Moines District Court. — Hon. James D. Smyth, Judge.

Appeal ■from Crawford District Court. — Hon. P. M. Powers, Judge. Action to recover amount paid on judgment. Verdict was directed as prayed and judgment entered thereon. The defendant appeals.

<p>.Master and servant: scope of employment: evidence. In this ac-1 tion for the death of an employee while going into a mine to procure drinking water for the men, the evidence is held to support a finding that an employee acting as vice-principle directed the decedent to enter the mine for that purpose.</p> <p>Same: negligence of master: evidence. Evidence reviewed and 2 held to justify a finding that it was perilous for one without ■experience to make use of the elevator for the purpose of entering the mine, at the time decedent was injured, without warning and instruction to first ascertain the condition of the ma- , chinery operating the elevator.</p> <p>Same: scope of employment: negligence of master. Where an 3 employee is not engaged for any particular task, but to do whatever he may be directed, he may recover for acts done within the scope of his employment and by direction of a vice-principal, from which injury results to him through the negligence of the master.</p> <p>Same: duty to warn. Before a master is required to warn and 4 instruct an adult employee it must appear that the employee was inexperienced or otherwise without knowledge of the peril, and that the employer was not aware of or had no reasonable ground to believe him inexperienced. And where the record is silent on these matters the presumption obtains that the employee knew the danger, and an issue of failure to warn should not be submitted.</p> <p>Contributory negligence: evidence. .Under the evidence the ques-5 'tion of decedent’s negligence in entering defendant’s mine for drinking water was for the jury.</p>

<p>Appeal from Washington District Oouri. — Hon. K. E. Willcockson, Judge.</p> <p>This is an appeal from a conviction for the crime of seduction.</p>

'Appeal from Fayette District Court. — Hon. A. N. Hob-son, Judge. Action in equity to enjoin the defendant city and its officers from entering into a contract with intervener, Horrabin, for the grading, curbing, guttering, and paving of a certain street under a bid of intervener' accepted by the city council. A permanent injunction was granted by the lower court, and the intervener, Horrabin, appeals.

<p>Appeal from Pottawattamie District Court.— Hon. W. R. Green, Judge.</p> <p>Action for damages resulted in a judgment for defendant. . The plaintiff appeals.</p> <p>—</p> <p>Affirmed.</p>

<p>'Appeal from Superior Court of Cedar Rapids. — Hon. 0.. B. Bobbins, Judge.</p> <p>The opinion states the case.</p>

— IIon. Hugh Brennan, Judge. Action at law upon a policy of insurance issued to the plaintiff against loss or injury by tornado or windstorm to a certain church building. The defendant denies liability. The interveners are mortgagees, holding liens upon the property, 'and asserting a right to share in. the proceeds of the insurance. Judgment for plaintiff, and interveners .and defendant appeal.

— IIon. F. E. Gaynor,' Judge. Action on an accident policy to recover a stipulated benefit for disability resulting from accidental means. At' the conclusion of plaintiff’s evidence, the court, on defendant’s motion, directed a verdict in its favor, and from a judgment on this verdict plaintiff -appeals.

<p>Appeal from Bremer District Court. — Hon. J. F. Clyde, Judge.</p> <p>The plaintiffs appeal from an order dissolving a temporary writ of injunction.</p>