Volume 156 — Iowa Reports

<p>Contracts: assignment of wages: validity. A contract by which 1 an’employee, for the purpose of obtaining credit, gives the master authority to deduct from his wages an amount sufficient to pay his living expenses is not void as a unilateral contract, oías a mere license or privilege without consideration; since thereby the employee was enabled to procure credit and thus secure his employment.</p> <p>Same: rights of assignee. The assignee of the wages of a rail-2 way employee acquires no greater right thereto than the assignor had at the time of the assignment.</p> <p>Garnishment: service of notice. Where the statute of a foreign 3 state provided that notice of garnishment in justice court should be served in such manner as the justice directed, and he ordered service of notice by mail on the claimant of the fund, service (had in that manner was sufficient.</p> <p>Same: foreign judgments: conclusiveness. Where-a debtor has 4 been regularly garnished in a foreign state the claimant of the fund by assignment, who had proper notice of the garnishment but failed to .appear and protect his rights, can not maintain suit against that garnishee for the fund in the courts of this state.</p>

<p>Appeal from Polh DisMct Court. — IIon. Lawrence De- ’ graee, Judge.</p> <p>Action to establish and foreclose liens. Two actions were brought by the same plaintiff against different defendants. , They were so related in their facts that they were consolidated by agreement and tried together. There was a decree for the plaintiff in both actions, and the defendants have appealed.</p>

<p>Sales: transfer of title: delivery through carrier. Where the i seller of property consigned the same to his own order for' shipment, taking a bill of lading and requiring a surrender of the same properly indorsed before delivery of the property to the purchaser, and the bill of lading with a draft attached was forwarded for collection, the title and control of the property remained in the seller until payment of the draft and delivery of the bill of lading to the purchaser, although there was a direction on the bill of lading to deliver the same to the pur-, chaser.</p> <p>Same. Where property is consigned to the seller with instructions 2 to deliver the same to 'the purchaser upon payment of a sight ' draft and surrender of the bill of lading, .the fact that the purchaser was to pay transportation charges did not constitute the carrier his agent, so that mere delivery of the property to the carrier was delivery to the purchaser', thus passing the title. Neither did the fact that the bill of lading bore a direction to deliver the property to the purchaser -waive, the express provision that the same properly indorsed should be required before delivery; nor did it constitute the purchaser the consignee of the shipment.</p> <p>Same. Where the seller of property, consigned to his own order, 3 in good faith negotiated the bill of lading with a draft for the price attached, the legal title to the property vested in the purchaser of the bill of lading and draft, and this title could not be divested by the unauthorized act of the carrier in delivering the property to the purchaser without requiring a surrender of '•the bill of lading as provided therein, or by garnishment of the buyer by a creditor of the seller.</p> <p>Garnishment: notice to garnishee. A judgment against a gar-4 nishee who had no notice of the garnishment is invalid.</p>

— IIon. Lorin N. Hayes, Judge. Action, at law to recover attorney’s fees -against the defendant county for services rendered by the plaintiff, an attorney at law, in certain- disbarment proceedings and under regular appointment by the court to such services. There was a demurrer to the petition, which was overruled. The defendant elected to stand upon its demurrer, and judgment was accordingly -entered for the plaintiff, and the defendant appeals.

— -Hon. J. F. Clyde, Judge. Action to recover damages for the wrongful killing of plaintiff’s intestate and to recover the value of certain' personal -property destroyed at the same time. A trial to a jury resulted in a verdict and judgment for the plaintiff. The defendant appeals.

<p>Railroads: ejection of passengers: intoxication. The statute 1 authorizes railway companies to eject intoxicated passengers from itheir trains as a protection to the traveling public from the misconduct of drunken and disorderly persons; hut in doing so they are not at liberty to use excessive force, or to knowingly -imperil life or limb. In the ins-tant case the conductor was justified in ejecting plaintiff, not only oil the ground of intoxication but also because of refusal to pay his fare.</p> <p>Same: ejection of persons from station. A railway company may 2 forcibly eject persons from its passenger stations, except within a reasonable time before, during or after the arrival and departure of its -trains; but are not permitted to knowingly imperil the life or limb of such persons in so doing.</p> <p>Evidence: admissions. The admissions of a party to an action 3 should not be excluded because his attention was not called to them while testifying as a witness.</p> <p>Railways: ejection of passenger from station: excuse: evidence. 4 Proof .that a station agent offered to take an intoxicated .person whom he had excluded from the station home with him, did not relieve the company from liability for his injury from exposure, where the agent must have known that he was in such condition that he did not understand the offer. In the instant case the evidence is such as to require submission of the questions whether the agent offered to take the plaintiff home with him, or whether .the agent knew that plaintiff did not understand the offer.</p>

District Court. — Hon. R. P. Howell, Judge. Action to quiet title. It was brought against the defendant Josefa Yittengl as, sole defendant. The petition was in the statutory form. The real purpose of the action, however, was to remove from plaintiff’s title the cloud of an apparent lien of a judgment held by the defendant Josefa against the former husband of the plaintiff. The defendant set up such judgment, and asserted her alleged lien.

— Hon. A. D. Bailie, Judge. Suit in equity to set aside and cancel a tax levied upon certain real estate in Emmet County, to enjoin the collection of said tax, and for other equitable relief. Decree dismissing’ the petition, and plaintiffs appeal.

<p>Real property: leases: enforcement. One not a party to a lease i of real estate, in connection with which there is a building restriction agreement, is in no position to enforce the agreement.</p> <p>Same: municipal corporations: streets: added width: rights of . 2 city. Under an agreement of the owners of property abutting on a street to add to the width of the sidewalk in front of the property and not to erect buildings thereon, with no intention to dedicate the same but rather to ’hold it for the convenience of the owners, the use of the strip by the public will be deemed referable to the agreement with, no right thereto in the city, except such as the agreement may confer; and such use will not ripen into a title or claim by prescription.</p> <p>Same: easements: threatened interference: injunction by ten-3 ant. An agreement of the owners to add a strip of their abutting property to the sidewalk space, and not to build thereon, constitutes a covenant running with the land and binding upon subsequent grantees; and a tenant entitled to the use and benefit of such an easement has such an interest therein that he may enjoin anyone threatening to interfere with that use.</p> <p>Same: specific performance. Specific performance of a contract 4 rests largely in the discretion of the court, and will' be denied where enforcement would result' in great hardship, not merely pecuniary loss; or where the party complaining has been guilty of laches, or has acquiesced in the doing of the thing of which he complains.</p> <p>Same:- building covenants: rights of tenant.__ The owner of 5 property for -the benefit of which -he has made.building restrictions can not deprive his tenant of the right to such restrictions.</p> <p>Sanie: abandonment of rights: evidence. The owner or lessee 6 of property, for the benefit of which building restrictions have been created, will not be held to have abandoned his right to enforce the same by permitting slight and immaterial violations of the agreement, so long as the right to enforce the same is of value to him, and such violations do not interfere with the substance of the agreement. In the instant case the showing is held insufficient to establish abandonment or waiver of the right to insist on the restrictions of a building covenant. ,</p> <p>Same: estoppel. The fact that plaintiffs had used a small portion 7 of the strip of land in controversy not strictly in accordance with the building covenant, by erecting thereon temporary show cases with permission of adjoining owners, and with the understanding that they were to be removed at any time in case of protest, did not estop them from claiming the right to enforce the covenant against the erection of a permanent structure covering practically the entire strip.</p>

— Hon. James A. Howe, Judge. Action in equity to enjoin tbe defendant as road supervisor from opening and maintaining a ditcb along the highway in front of plaintiffs’ premises so as to prevent or interfere with convenient access to said premises from said highway and from so interfering with the natural drainage of the surface water from plaintiffs’ land upon the highway as to cause such water to run through such ditch in front of the plaintiffs’ premises.

— -Hon. Lawrence De Grade, Judge. In this special proceeding to determine whether L. J. Klemm, one of the defendants, was entitled to redeem from an execution sale under foreclosure of plaintiff’s mortgage, the court held that such redemption could not be made, and from this ruling Klemm appeals.

— -I-Ion. A. B. .Thornell, Judge. Suit on two promissory notes. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.

— Hon. James A. Howe, Judge. Action originally brought by the Agar Packing Company to recover treble damages from defendant for unlawful discrimination in freight rates and other violations of our, statutes with reference to the duties of common carriers. The Packing Company having been adjudged a bankrupt, its trustee was substituted as plaintiff, and it is now prosecuting the action.

— Hon. A. B. Thornell, Judge. Action on alleged oral promise by defendant to pay •to plaintiffs the amount of certain claims held by plaintiffs against one 'Whitsett-.

<p>Appeal'from Webster District Court. — Hon. C. G. Lee, Judge,</p> <p>The facts are stated in the opinion.</p>

— IIon. James A. Howe, Judge. Appeal from a paving assessment ordered by the city ' council of Des Moines. Upon a hearing in the district court, the assessment was confirmed, and the appeal dismissed. From such order, the property owner has appealed to this court.

— Hon. Franklin C. Platt, Judge. Action to enjoin tbe levy, as a specific assessment, of tbe cost of constructing a sidewalk against plaintiff’s lot. On Behring tbe'petition was dismissed. Tbe plaintiff appeals.

— Hon. A. D. Bailie, Judge. Action to recover damages to the estate of Yeager resulting from his death, which is alleged to have been caused by the negligence of defendant, in whose employment he was engaged as bralceman when he was injured. There was a verdict for the plaintiff, and defendant appeals.

— Hon. C. Gr. Lee, Judge. Action at law to recover damages for au alleged nui-san.ee caused by casting water upon plaintiff’s land. Trial to a jury, verdict and judgment for plaintiffs in the sum of $106.33, and defendant appeals.

<p>Appeal from Pottawattamie District Court. — Hon. A. B. Ti-iornell, Judge.</p> <p>In a proceeding for the probate of the will of James Lawless, deceased, plaintiff, a minor, by his guardian and next friend, filed objections to the probate on various grounds. Objections were also filed by Michael Lawless. On issues properly raised the case proceeded to trial on the objections interposed by William J. Lawless, minor; Michael Lawless having withdrawn his objections filed. At the conclusion of the introduction of evidence in behalf of the plaintiff, the court, on motion, directed a verdict for the defendants, the proponents of the will, and a judgment was entered admitting the will to probate, from which judgment the plaintiff appeals.</p>

<p>Mortgages: concurrent liens: effect of assignment. Separate 1 mortgages simultaneously executed, between the same parties and covering the same property are not necessarily to be regarded as a single instrument, but each as a distinct contract complete in itself; and when simultaneously filed they create concurrent liens, and in the absence of ari agreement the assignment of one will not give it priority over the other.</p> <p>Same: foreclosure of one concurrent -mortgage: effect. The 2 foreclosure by the mortgagee of one of two concurrent mortgages covering the same property, after ah Unrecorded assignment of the other, will not discharge the assigned mortgage; the assignee not having been made a party to the foreclosure and there having been no reference to the assigned mortgage in the foreclosure proceedings.</p>

<p>Appeal from Pottawattamie District Court. — Hon. A. B. Thornell, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Polls District Court. — IIon. W. H. McHenry, Judge.</p> <p>The facts are stated in tbe opinion.</p>

<p>Appeal: law of the case. A determination by the appellate court 1 on a former appeal that the evidence'was sufficient to take the case to the jury on all the issues raised became the law of the case, whether right or wrong.</p> <p>Malicious' prosecution: probable cause: effect of settlement. As 2 a general rule the settlement or attempted settlement of a debt with an accused does not of itself show that a criminal prosecution was instituted without probable cause; and it is also generally true that a dismissal, of criminal proceedings brought about by the accused, or by reason of a settlement, is not such a termination of the proceedings as will justify an action by the defendant therein for malicious prosecution; but an agreement not to prosecute upon payment of a debt is prima facie evidence of want of probable cause, which, in the absence of evidence to the contrary becomes conclusive.</p> <p>Same. Ordinarily an action for malicious prosecution will not lie 3 for the prosecution of a civil suit; but if there has been a seizure of goods or an arrest of the defendant, therein it will lie.</p> <p>Same: essential elements. To sustain an action for malicious 4 prosecution the previous prosecution mu.st be shown, its instigation by the defendant, its termination by acquittal or discharge of plaintiff, want of probable cause and malice. There must be a -complete ¡termination of the original prosecution, but this may be shown by an acquittal, discharge after preliminary examination, or by a dismissal of the prosecution.</p> <p>Same:- right of recovery: effect of conviction. Conviction of 5 an accused upon false testimony and without foundation in law will not defeat an action for malicious prosecution: Nor will an acquittal entitle him to recover if it is shown that he was in fact guilty of the original charge against him.'</p> <p>Same: probable cause. Probable cause is a defense to any action 6 dor malicious prosecution; so that settlement of an action for malicious prosecution of a civil suit by payment of money, either upon defendant’s procurement or by a settlement understandingly made and without duress, is a distinct admission that something was due and constitues a defense to the action for malicious prosecution.</p> <p>Same: malice. If one uses the criminal law for some collateral 7 or private purpose, rather than to vindicate the law itself, or knowing that only a civil wrong has been committed, he will toe deemed to have acted maliciously.</p> <p>Same: termination of prosecution. T^he dismissal of a prosecu8 tion with the taxation of costs against the county is a sufficient ¡termination of the proceeding to authorize an action for malicious prosecution.</p> <p>Same: settlement of prosecution : duress : evidence. The settle-9 ¡ment of a prosecution by one charged with a crime must have been voluntary on his part to prevent his suing for malicious prosecution. In this action the evidence is held to show that settlement of the prosecution was induced by duress and that the proceeding was instituted to compel payment of a civil debt.</p>

<p>Appeal from Shelby District Court. — Hon. E. 33. Wood-ruff, Judge.</p> <p>The facts are stated in the opinion.</p>

— IIon. F. M. Powers, Judge. 'Action to quiet title and to recover possession of a fractional forty acres of land. The defendant answered that he was in possession of the land in pursuance of purchase thereof from the plaintiff through its officers. By cross-bill he prayed that his title thereto be quieted. There was a decree for the defendant on his cross-bill, and the plaintiff appeals.

<p>Appeal from the Pottawattamie District Gourt. — EEon. O. D. Wheeler, Judge.</p> <p>The opinion states the case.</p>

<p>Certiorari from Carroll District Court. — Hon. F. M. Powers, Judge. .</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Cerro Oordo District Court. — Hon. J. J. ' Clark, Judge.</p> <p>Action to recover damages for personal injuries received by plaintiff while in defendant’s employment, and alleged to have been due to defendant’s negligence. • There was a verdict for plaintiff, and from judgment on this verdict the' defendant appeals.</p>

— Hon. Hugh Brennan, Judge. The defendant oity, having proceeded in a proper manner to provide for the construction of a viaduct in one of its streets over the tracks of certain railway companies, which viaduct was to be constructed at the expense of such companies, caused proceedings to be instituted for appraising, assessing, and determining the damages caused to property abutting on the street by reason of the construction of such viaduct and its approaches.

— How. James D. Smythe, Judge.' Appeal from a decree of the district court cauceliug an assessment against plaintiff, Barbydt, of $250,000 on moneys and credits for the year 1910.

<p>Municipal corporations: county printing: procedure. In contests 1 over the selection of county newspapers, and the awarding of county printing, the protests and pleadings should not be construed with too much strictness; as the proceedings are largely informal in character, before a board not accustomed to judicial procedure, and usually conducted by the contending owners of the newspapers.</p> <p>Same: appeal: service of notice. An appeal from the action of 2 the supervisors in designating official county newspapers is to be taken as in ordinary actions, by service of notice upon the publisher against whom the protest has been lodged; it need not be served upon any county official.</p> <p>Same: trial: depositions: waiver of error. An appeal from an 3 order of the supervisors designating official county newspapers is a special proceedings; and, while not triable to. a jury, is to be heard as an ordinary action, and the court is not authorized to order the case tried upon depositions or other written evidence. And although the appellant may have complied with an unauthorized order requiring the action to be tried on depositions, having excepted to the order, he did not thereby waive the error.</p> <p>Same: right to offer additional evidence. Even though the appel4 lant in such a case suffered no prejudice by an erroneous order that the case be tried on depositions, still a refusal to permit him to introduce additional testimony on the trial was erroneous.</p> <p>Shme: appeal: prejudice: presumption.- The rule that when error 5 is once shown, in an action triable on appeal upon the assignments of error, prejudice will be presumed, applies to an appeal -from an order designating official newspapers, and a reversal will be ordered unless it is affirmatively shown that no prejudice resulted. And the appellant need not present more of the record than is sufficient to show the errors complained' of. If the appellee claims that the erroneous rulings were not prejudicial he must show that fact.</p>

<p>Municipal corporations: public improvement: resolution of neces1 sity. The statutes contemplate that the resolution of necessity for the construction of a public improvement, which is to be made at the expense of abutting property, shall describe the adjacent property to be assessed; and failing tó do so a contract for the work is invalid.</p> <p>Same: sewerage: presumption as to outlet. Failure in the first 2 instance to provide an outlet for a sewerage system will not render a contract for the construction of the work invalid; as it will be presumed that the city will provide such an outlet as will render the system serviceable.</p>

— How. Robert Bow-sow, Judge. Action iu equity, brought by plaintiff, as administrator of the estate of Minette Levi, to subject to the payment of her debt to the firm of James Levi & Co. certain described real property, which during, her lifetime had been conveyed to the defendant without consideration and by way of gift by a deed deposited with a third 'person and delivered to defendant only after- grantor’s death; the allegation being that at the time of the execution of…

— Hon. D. M. Anderson, Judge. Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.

— IIon. Lawrence De Grape, Judge. This is an appeal from an assessment of omitted moneys and credits. Plaintiff was assessed by the treasurer of Polk County with omitted credits to the amount of about $15,000, and from such assessment appealed to the district court. Upon trial in that court the assessment was confirmed, and plaintiff appeals.

— Hon. Byron W. Preston, Judge. This is an action upon a certificate of membership in a mutual accident association. Under the terms and conditions of the certificate, $5,000 became payable to the plaintiff, as beneficiary thereunder, in case of the death of the assured by external, violent or accidental means. The defendant answered with a general denial. It also pleaded affirmatively that the death of the assured was the result of bodily ' infirmity and disease.

— ÍIon. William Theopiiilus, Judge. Suit in equity to enjoin a liquor nuisance. A motion by defendant for more specific statement was sustained. The plaintiff elected tp stand upon her petition and refused to amend, whereupon the court dismissed her petition, and she appeals.

<p>Appeal from' Taylor District Court. — IIon. H. M. Towner, Judge.</p> <p>Action on two insurance policies resulted in judgment as prayed. The defendant appeals.</p>

— Hon. Milo P. Smith, Judge. Action to recover the amount due on two promissory notes, dated December 15, 1903, each for $800, and payable July 1, 1905, and July 1, 190Y respectively to the order of Henry Lefebure signed by the four persons named as defendants in the title of the action, as above given, and-others. Plaintiff alleged that it became the holder of said notes for value and in good faith, before maturity, without any notice of defenses thereto.

— Hon. S. B. Snyder, Judge. Action to recover alleged excessive charges, damages to stock shipped, and loss of time resulted in a verdict for the plaintiff, and judgment was entered thereon. The defendant appeals.

— Hon. E. M. Powers, Judge. Action for damages for alleged negligence in leaving certain . drainage ditches open and exposed, by reason of which injury.resulted to'the plaintiff. There was a general denial and a plea of contributory negligence. There was a trial to a jury, and a verdict and judgment for the plaintiff, and defendants appeal.

— Hon. Z. Á. Church, Judge. Action for commissions alleged to have been earned in finding purchaser of land. Prom judgment as prayed, tbe defendant appeals.

<p>Municipal corporations: extension of limits: review of proceed-1 ings : Certiorari. In the absence of fraud the action of a town 'council or of the electors in extending the limits of the incorporation' can not be reviewed by certiorari, on the ground that there was no necessity for the extension; hence evidence that the purpose of the extension was to derive revenue from the town, to sell bonds and to increase the indebtedness, was not admissible : Nor in such a proceeding, can there be a recount of the ballots cast on the question of extension.</p> <p>Same: Certiorari: abstract: return: amendment. It is permis2 sible in certiorari proceedings to review the action of a town council in extending the limits of the town for ‘defendant to amend the abstract curing an alleged defective description of the territory, and to amend its return by striking out that part showing that the polls were not opened until after the proper hour.</p> <p>Same: review of ministerial acts. Certiorari will not lie to re-3 view a ministerial act; such as the receiving or rejection of votes by the judges at a municipal election on the question of extending the town limits.</p> <p>Same: municipal elections: records. The record of a town coun4 cil is not conclusive on the question of when the polls of a municipal election were opened; as the same is not the record of the judges and clerks of the election.</p> <p>Same: defective ballot: review: Certiorari. Certiorari will lie 5 to review the action of an inferior tribunal only when it has acted in a judicial or semi-judicial character, and then only when the act was without jurisdiction or otherwise illegal; it is not the proper remedy for the correction of mere errors, nor of ministerial, administrative or legislative acts; nor to control the discretion of a judicial or semi-judicial body: Thus where the proper officials, in preparing the ballot used at an election on the question of extending the limits of an incorporated town, a .purely ministerial act, omitted therefrom a description of the territory to be added, which constituted the only error complained of, and it in no manner prejudiced' any 'elector, certiorari was not available for the purpose of vitiating the whole proceeding; but there was an adequate remedy either by injunction or quo warranto.</p>

— Hon. F. M. Powers, J UDGE. Appeal from an order of the district court reducing assessments for benefits against certain tracts of land owned by plaintiff within a drainage district established by the board of supervisors of Greene county, Iowa.

— ~Kon. Z. A. Church, Judge. Appeals from orders dismissing appeals taken by the plaintiffs from awards of damages due to tbe establishment of a drainage district to the district court of Sac county,

- — Hon. E. P. Howell, Judge. Suit to enjoin defendants from erecting a fence along the south line of and otherwise improving a strip of ground eight or ten .feet wide. On hearing, decree was entered as prayed. The defendant appeals.

<p>Master and servant: guarding dangerous'machinery: factory act: 1 construction. Where specific descriptions in a statute of persons or things are followed by general words not so specific, the latter descriptions are to be construed as applicable to a class of persons or things alike or similar to those designated by the preceding specific descriptions; unless the specific words describe things of different classes, or include all things in their class, or an application of the rule would render the general words meaningless. The factory act providing that “all saws, planers, cogs, gearing, belting, shafting, set screws and machinery of every description shall be properly guarded,” is construed as an exception to the general rule, in that the specific descriptions refer to machinery or parts of machinery different from one another, and therefore the term “machinery of every description” was intended to comprehend all machines of a character dangerous to employees operating them without proper guards.</p> <p>Same. Wherever any machine is shown to be dangerous to em-2 ployees when operated without proper 'guard, the requirement of the statute to guard the same becomes as mandatory as if the same was particularly described therein; and proof of its operation unguarded makes a prima facie case of negligence. In the instant case the evidence is held to show a traveling crane is such a machine and requires guards.</p> <p>Same. The fact that machinery is located some distance above the 3 floor will not relieve the master of the duty of properly guarding it, if of such a character .that injury to employees is reasonably to be apprehended when required to work about it.</p> <p>Same: contributory negligence. The evidence in this case is held 4 insufficient to show as a matter of law that plaintiff was guilty of contributory negligence in placing his hand upon the track of a running crane.</p> <p>Same: safe place to work: submission of issue. It is also held 5 that the evidence' was sufficient to justify a finding that some provision for warning plaintiff of the approach of the crane was necessary to render the place where plaintiff was at work safe, and hence -a submission of the employer’s negligence in this respect was proper.</p>

— Hon. I). M. Anderson, Judge. Action for damages to cattle shipped over defendant’s line of railway resulted'in a judgment for plaintiff. The defendant appeals.-

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

— IIon. Jas. W. Bollinger, Judge. Action at law to recover damages for the death of the plaintiff’s intestate. Verdict and judgment for plaintiff, and defendant appeals.

— IIon. Milo P. Smith, Judge. Action of mandamus wherein plaintiff, an owner of property on either side of defendant’s line of railway seeks to compel defendant to construct an underground crossing on its roadbed for use in connection with plaintiff’s premises; and for judgment for. $500 damages for failure to maintain an adequate crossing from August 1, 1906, down to the date of the institution of the action.

— Hon. C. GL Lee, Judge, Action for an injunction restraining defendants from trespassing on plaintiffs’ land by erecting a fence thereon, and requiring that defendants remove from said land any fencing material which may have been placed thereon by them. There was a decree for plaintiffs, and the defendants appeal.

<p>Fraternal insurance: beneficiaries: rights of parties. The bene1 ficiary named in a certificate of mutual benefit insurance has no vested or property interest therein which is the subject of sale and transfer, and the extent of the insured’s control over it is the right to select a new beneficiary; so that any promise on ' his part to keep the same in force for the benefit of another in case of the death of the beneficiary named, will not create an enforceable obligation. Thus where the rules of the association provided that in case the beneficiary was not living at the death, of a member, his wife, if living, should be entitled to the benefit, but if not, then it should be paid to his children: Held, that upon the death of the beneficiary and later the assured, without change in beneficiary, his second wife was en-entitled to the benefit, although he had promised his first wife, the named beneficiary, that he would keep the certificate alive for the benefit of a child of the first wife.</p> <p>Same: estoppel. The party claiming an estoppel has the burden of 2 proof on that question. In the instant case the evidence is held insufficient to show that decedent’s second wife was estopped from claiming the benefits under the certificate, as against a child by his first wife; the certificate as originally issued providing for payment of benefits to the widow, if living, and no change ever having been made.</p>

— Hon. F. M. Hunter, Judge. Suit in equity to enjoin the collection of a judgment, for a decree of subrogation, and for an order enjoining the transfer of certain lands pending the action. A temporary injunction and restraining order was issued, which, upon defendants’ motion, was dissolved, and plaintiff appeals.—

— IIon. Charles E. Albrook, Judge. Suit in equity to impress a. trust upon thé title or estate held by the defendant, ,¥m. R. Matt. There was a decree for the defendant, and all other parties appeal.—

— Hon. J. H. Apple-gate, Judge. Action to enforce specific performance of a written contract for the sale and transfer to plaintiff of a law business with law library and office furniture and fixtures, and to enforce specific performance of an alleged oral contract to transfer to plaintiff certain bank stock, and, further, for an accounting of moneys received and expended in connection with the business of the law partnership.

— TIon. F. M. Powers, Judge. Suit to foreclose contract for the sale of land, resulted in a decree as prayed though for a lesser amount. The defendants appeal.

— Hon. E. O. Ellison, . Judge. Action for damages resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals.—

<p>Appeal from, Polls District Court. — ITon. Hugi-i Brennan, Judge.</p> <p>The facts are stated in the opinion.</p>

— Hon. W. H. Fahey, Judge. Action for the partition of real estate from a decree establishing the interests of the various parties and ordering a sale of the property, all parties appeal. As defendant Wm. Pleasant Eollins first perfected his appeal, he will be called appellant.

— Hon. Milo P. Smith, Judge. From a decree declaring certain sums owing plaintiffs, and establishing liens on an alleged trust fund on deposit with the Cedar Rapids National Bank and ordering payment therefrom, the defendants appeal

— Hon. K. E. Wilcockson, Judge. An indictment for burglary under the provisions of section 4791 of the Code. There was a plea of not guilty, and a verdict and judgment of conviction. The defendant John Rogers appeals.

<p>Appeal from Union District Court. — Hon. Ti-ios. L. Maxwell, Judge.</p> <p>The district court approved of the finding that the statement of consent to the sale of intoxicating liquors in the city of Crestón was sufficient. The plaintiff, who objected' to such statement, appeals.</p>

— Hon. James P. Hewitt, Judge. 'A. proceeding by certiorari was instituted in the lower court to annul a certain alleged illegal action of the board of supervisors of Polk county, as a board of canvassers, in declaring the result of a recount of the ballots cast at a primary election, as a result of which recount it was declared that A. O. Eisher was the candidate of the Hepublican party for the office of member of the board of supervisors.

— Hon. N. M. Hunter, Judge. Defendant was indicted for the crime of murder in tbe ’ first degree. Hpon trial to a jury he was convicted of the crime charged and sentenced to the penitentiary for life. He appeals.

<p>Banks and banking: negotiable instruments : good faith purchase : gambling contracts. A certificate of bank deposit is a negotiable instrument by which the issuing bank obligates itself to pay to the rightful holder the sum named in the certificate; and one acquiring the certificate under a blank indorsement in due course of business for value, before maturity and without notice, is a bona fide holder, under the Negotiable Instruments Act.</p>

<p>Appeal from Mahaska District Court. — Hon. B. W. Preston, Judge.</p> <p>The- defendants were jointly indicted for burglary. There was a verdict and judgment of conviction and they appeal.</p>

'Appeal from Woodbury District Court. — Hon. F. R. Gay-nor, Judge. A writ of certiorari was issued by the district court to the defendants. Judgment was entered annulling an assessment of plaintiff’s property. Defendants appeal.—

<p>Justices of the peace: submission of cause: continuance: jurisdiction. Where a justice court took a case under advisement at the close of the evidence, the parties agreeing to make their argument 'in the form of written briefs to be filed later, there was not a final submission at the time the case was taken under advisement, so as to require the entry of judgment within three days ’thereafter, - but rather a postponement until the filing of briefs: Nor did the justice lose jurisdiction on the ground of an indefinite adjournment, as it was Competent for the parties to agree •to a continuance to a time to be fixed by the justice.</p>

— Hon. H. K. Evans, Judge. A suit in equity to require defendant to assess its members t'o provide a fund from which to pay benefits to which plaintiff is entitled, and for judgment therefor. The petition was dismissed, and plaintiff appeals.

<p>Appeal from Blachhawh District Court. — Hon. C. E. Ransier, Judge.</p> <p>'A petition of general consent for tbe sale of intoxicating liquors in the city of Waterloo under the provisions of the mulct act having been presented to the board of spervisors was canvassed, and ’ found insufficient. Erom this finding plaintiffs herein appealed to the district court. Upon trial of said appeal the petition was found to have been signed by the requisite number of voters, showing a majority of 59 names after deducting signatures subject to proper objection, and the order entered by the board of supervisors was reversed. From the judgment so entered the defendants appeal to this court.</p>

— Hon. K. E. Wilcockson, Judge. Prosecution for rape. Defendant was found guilty of an assault witb intent to commit rape, and appeals. —

— Hon. H. M. Anderson, Judge. Action at law to recover'' a sum of money alleged to have been received by the defendant for the use of the plaintiff, Ruth Sutcliffe. There was a directed verdict for the defendant, and plaintiffs appeal. The material facts are stated in the opinion.

<p>Appeal from Clarice District Court. — Hon. Thomas L. Maxwell, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Malicious prosecution: probable cause: evidence. Before com-1 mencing a criminal prosecution the complainant must use ordinarily reasonable and prudent means to ascertain the facts upon which the 'prosecution is based; and the question of probable cause is for the jury except where the evidence is such that all reasonable minds must reach the same conclusion therefrom.</p> <p>Same: advice of counsel as a defense. The advice of an attorney 2 to constitute a defense to an action for malicious prosecution must be based upon a full and fair statement of all the facts within the defendant’s knowledge, and the advice must have been acted upon in good faith and with a belief that there was good •cause for the prosecution; and these are generally questions for .the jury.</p> <p>Same: conspiracy. Evidence that several persons were jointly in-3 strumental in filing a crimnál information thus causing a prosecution, and of their participation therein, will justify a finding of a conspiracy to prosecute the plaintiff.</p> <p>Same: malice. Malice may be inferred from want of probable 4 cause; and such inference alone will support a‘finding of malice.</p> <p>Same: probable cause: malice: instructions. Where the- court 5 instructed that plaintiff must show that he was prosecuted substantially as alleged in the petition, that the prosecution was malicious and without probable cause and he must so prove, an instruction that defendants admitted that plaintiff was prosecuted substantially as alleged, was not objectionable as leading the jury to think that probable cause and malice were admitted.</p> <p>Same: conspiracy: evidence. Evidence that defendants agreed that 6 one of them should file an information causing the arrest of plaintiff, and that they should jointly assist in the prosecution, justified a finding that they both instigated or procured the prosecution, and rendered both liable for malicious prosecution.</p> <p>Same: damages: instruction. Where the plaintiff asked as part 7 of his damages a certain sum for attorney’s fees, and the evidence showed that he had paid or agreed to pay a less sum, and there was no showing that the jury allowed more on this item than the evidence warranted, the instruction that they might allow such attorney’s fees as were proven, not in excess of the amount claimed, was proper. •</p>

— Hon. Frank W. Eichelberger, Judge. Action for breach of promise of marriage. Trial to a jury. Verdict and judgment for defendant,, and plaintiff appeals.

— How. Lorin N. Hays, Judge. Notion at law to recover damages for injuries received by plaintiff while a passenger on one of defendant’s trains. Trial to a jury. Verdict and judgment for plaintiff in the sum of $3,000, and defendant appeals.

— IIon. O. W. Vermillion, Judge. Action upon a promissory note for $3,000 purporting to be signed by the defendants Loyd D. Burton and S. A. Burton. There was a joint answer in general denial and a denial of signing the note in the form sued upon. Later the defendant, S. A. Burton, denied the genuineness of the signature under oath. On motion of the defendants the cause was transferred to the equity side for the purpose 'of an accounting on a cross-bill filed.

<p>Divorce: judgment for alimony: appeal: amount of bond: reformation. On appeal from a judgment for alimony payable in monthly installments the appeal bond need not be for the full amount of the judgment, but liability on the bond may be limited to the amount which will accrue pending the appeal; and where the court fixed the amount of the bond to cover that portion of the judgment accruing pending appeal, but by mistake it was drawn to cover the entire judgment, it may be reformed to conform to the order of the court.</p>

<p>Sales: action for price: burden of proof. In an action for goods sold and delivered, to which defendant answered by a general denial, the burden was upon plaintiff to prove that he sold or furnished the goods to defendant at his request, the nature or description of the same, the agreed price, or, in the absence of an agreement, the reasonable value of the goods.</p>

<p>Municipal corporations: commission form of government: powers. 1 Cities, including those organized by special charter, adopting the commission form of government retain the powers previously exercised.</p> <p>Same: special charter cities: bridge taxes. A county has no 2 authority to levy a bridge tax on property within special charter cities, but such cities have exclusive power to' levy such taxes to be expended for bridge purposes within their limits; and this right is not affected by adoption of the comnyssion form of government.</p>

— Hon. W. S. Hamilton, Judge. This is an action in equity to enjoin the prosecution by defendant against plaintiff of a suit, aided by attachment, in a court of Missouri to recover damages • for slander and malicious prosecution for. words spoken and acts done in Lee county of this 'state, of which county the plaintiff and defendant are both residents.

— Hon. Wm. Hutchinson, Judge. ■ Action to recover attorney’s fees under Code, section 321. A demurrer to the petition was sustained, and, the plaintiffs electing to stand on their petition, it was dismissed, and they appeal.

— Hon. H. K. Evans, Judge. Action at law to recover for goods sold and delivered. Defendant admitted purchasing the goods, but denied acceptance or delivery. The case was tried to the court without a jury, resulting in a, judgment for defendant, and plaintiff appeals.

— Hon. Byron W. Preston, . Judge. Appeal by plaintiff from au order overruling an application to reinstate on tbe calendar a cause dismissed for want of prosecution.

— Hon. W. S. Withrow, Judge. Suit in equity to set aside a deed on the grounds of mental incapacity and undue influence. Judgment for the defendants. Plaintiff appeals.

<p>Master and servant: issues: pleadings: instructions. In this 1 action to recover tips paid an employer by mistake, in which a settlement was pleaded by defendant, and in reply plaintiff pleaded that the settlement was procured by fraud and that he was a minor and had disaffirmed it, a failure to instruct as to the effect of the settlement was without prejudice to the defendant, where the jury found that the tips, were personal gifts to the plaintiff and that he had not contracted to pay them to defendant; as the action was not upon any contract requiring repudiation to entitle plaintiff to recover, and under the facts proven defendant could not avoid liability on any theory.</p> <p>Same: compensation of servant: tips: burden of proof. Tips 2 given a servant, over and above the regular charge for the service, belong to the servant; and the burden is upon the employer to show a contract by which they were to be turned over to him.</p>

— Hon. F. W. Eichelberger, Jtidge. Action at law to recover damages ‘ for an alleged slander. The plaintiff recovered judgment for $500, and defendant appeals.

<p>Chattel mortgages: oral agreement: garnishment. A chattel lien 1 may be created by oral agreement, and where the agreement is followed by a change of possession the property is not subject to attachment. Thus where a debtor orally agreed with a creditor and a third person to sell certain property and place the proceeds in the hands of the third party for the benefit of the creditor a lien was created; and when the fund passed to the third party it was in effect delivered to the creditor and was not subject to garnishment, even though a portion of the fund was received by him after service of garnishment.</p> <p>Same: extinguishment of lien. Chattel mortgage liens are ex-2 tinguished by a sale of the property by agreement of the parties, and the mortgagee’s rights thereafter are to the proceeds according to the agreement.</p>

— IIon. H. E. Wilcookson and Hon. John E. Talbott, Judges. Action at law to recover _ damages from the county for failure of its officials to award a bridge contract to plain-jiff; he being, as is alleged, the lowest bidder for the work. The trial court sustained a .demurrer to the petition, and plaintiff appeals.

— Hon. Wm. Hutchinson, Judge. This is an action to recover the purchase price of an automobile truck sold by plaintiff to defendant with a .written warranty. In his answer the defendant pleaded representations of the plaintiff with reference to the truck which were not met and complied 'with.

<p>Appeal from Washington District Court. — Hon. K. E. Wilcockson, Judge.</p> <p>The facts are stated in the opinion.</p>

— Hon. F. M. Hunter, Judge. Action at law upon a promissory note. The payee of the note was T. H. Corrick, who transferred the same in due form to the plaintiff. The defendant set up the' following defenses: (1) That-the note was void because issued in violation of. the provisions of section 1641-b, Code Supplement; (2) that it was void for want of consideration and because the consideration had failed; (3) that it was obtained by false and fraudulent representation.

<p>Reference of causes: appointment and qualification of referee: i statutes. The provisions of the statutes relating to the appointment, acceptance and qualification of a referee appointed by the court to try and report a cause are directory only, and do not go to his power to act as referee. And the error of failing to sign his report may be cured by afterward affixing his signature and refiling the report.</p> <p>Same: time for filing report. The general rule is that a referee 2 should file his report at the next succeeding term, in the absence of an order of court fixing the time for filing the same; but the time may be extended by agreement: Thus where the court in the order of appointment fixed no time for the referee to report, and the parties stipulated that he should make and file his report as of the last day of a certain term, and that the same should be submitted in vacation if the court was not in session and decree entered as of that term, he was authorized to file his report at any time during that term and until the commencement of the succeeding term; but upon his failure to so file the report he lost jurisdiction of the case.</p> <p>Same: waiver of failure to file report: estoppel. Exceptions to, 3 the first report of a referee and motions to set it aside, filed a short time before moving to strike out the report, were not a waiver of the referee’s failure to file a second report within the proper time, where the motion to strike was made as soon . as counsel learned of the filing of the second report.</p> <p>Same. Ordinarily there can be no estoppel to assert that a referee’s 4 report was not filed in time.</p>