Volume 157 — Iowa Reports

<p>Appeal from Monona District Court. — Hon. David Mould, Judge.</p> <p>This is an action of replevin. Tbe property in controversy is a team of borses and wagon. Tbe plaintiff claims tbe possession thereof by virtue of a chattel mortgage executed by one F. E. MacNutt on January 10, 1907. The defendant claims the property under an alleged purchase of the same from said F. E. MacNutt subsequent to the execution of the mortgage. At the close of the evidence, the trial court directed a verdict for the plaintiff. Defendant appeals. —</p>

— Hon. W. (x. Clements, Judge. Action to enjoin, a nuisance caused by the casting of water by defendant upon plaintiff’s land and to recover damages for the continuance of the nuisance. Defendant denied the alleged nuisance and pleaded that he did no more than discharge the water from his land upon the land of the plaintiff, which was the servient, estate, into a natural swale or water course.

— Hon. E. W. EiObcerlberger, Judge. Action for damages for personal injuries. At tbe close of the evidence, the trial court- directed a verdict for the defendants. Plaintiff appeals.

<p>Appeal from Linn District Court. — Hon. Milo P. Smith, Judge.</p> <p>Action in replevin for the possession of a buggy. There was a judgment for defendant, from which plaintiff appeals. —</p>

<p>Appeal from, Dallas District Court. — Hon. W. H. Eahey, Judge.</p> <p>Action at law to recover back money paid by mutual mistake under the provisions of a written contract. There was a verdict and judgment for the defendant. Plaintiff appeals. —</p>

Certiorari from Mahaska District Court. — Hon. K. E. Wiloockson, Judge. This proceeding by certiorari is brought to review the action of the trial court in committing the plaintiff for contempt in refusing to answer 'certain questions propounded to her as a witness before the grand jury, in a prosecution of her husband for the crime of forgery.—

— Hon. W. S. Withrow, Judge. Action for slander. There was a verdict for the plaintiff for $300 and judgment entered thereon. Defendant appeals. —

<p>Appeal from Mahaska District Gourt. — Hon. John F. Talbot, Judge.</p> <p>The facts are stated in the opinion. —</p>

<p>Wills: construction: estate for life.. A devise of real and personal 1 property to the wife while she remained testator’s widow was in effect a 'devise to the widow for life or during her widowhood, and conferred upon her no estate of inheritance. And a further provision that she should take charge of everything ■and use it to the best of her knowledge and. ability, without bond or security, did ■ not have the effect to render the estate one in fee simple.</p> <p>Same. The subsequent provisions of the will devising a life estate 2 to the widow, that in case she should remarry she should have one-third of the property and the balance should be divided among certain children, she to have the use of the estate prior to remarriage, did not give her an absolute power of sale but simply the right to take and use the property, which was consistent with the life estate granted, and did not convert it into a fee simple orr the theory that there may not have been any property left at her remarriage to be divided.</p> <p>Costs: apportionment. Parties unsuccessfully resisting an appli3 cation to set aside the sale o'f an administrator and for his removal, can not complain of an apportionment of the costs and’ the taxation of a portion against them.</p>

<p>Appeal from J ohnsan District Court. — Hon. K. P. Howell, Judge.</p> <p>The opinion states the case.</p>

<p>Appeal from Cherokee District Court. — -Hon. Wm. Hutchinson, Judge.</p> <p>The opinion states the ease. —</p>

— Hon. Z. A. Church, Judge. A demurrer to the petition as amended- was sustained, and, as plaintiff elected to stand on the ruling, petetion was dismissed. Plaintiff appeals. —

— Hon. A.. D. Bailie, Judge. Appeal from judgment of the district court reducing the assessment made upon plaintiffs land for the construction of a ditch. —

— Hon. W. S. Hamilton, Judge. Action at law upon a policy of fire insurance. The ease having been assigned for trial, and plaintiff not appearing on the- date so fixed, a dismissal was ordered and a judgment entered for costs. Thereafter plaintiff moved to reinstate the case, making a showing of merits and of circumstances explaining and excusing its failure to appear on the day assigned. Motion overruled, and plaintiff appeals. —

!Appeal from Polk District Court. — Hon. James A. Howe, Judge.

— Hon. C. W. Vermillion, Judge. Defendant was indicted for the crime of manslaughter, due to the reckless and careless use of a deadly weapon. Upon trial to a jury he was convicted of the crime charged and appeals. —

— Hon. K. P. Howell, Judge. The defendant was indicted for the alleged murder of Oliver P. Driver. To this charge he pleaded not guilty, and upon the trial was convicted of murder in the second degree. Prom the judgment entered on this verdict he appeals. The material facts are' stated in the opinion.—

— Hon. E. B. Gay-nor, Judge. Action to recover a sum of money paid by one Nothem during his lifetime to E. J. Edmonds, now deceased, and to defendant Londergan. It is claimed that said payment was made through mistake, or that the payment was not taken into account in a settlement of partnership affairs of H. Nothem & Co., of which firm all parties were members.

<p>Divorce: cruel and inhuman treatment:' alimony: evidence. In this action by the wife for divorce and alimony on the ground of cruel and inhuman treatment, the evidence is reviewed and held to support a decree for plaintiff, and an allowance of $5,000 permanent alimony.</p>

— Hon. Hugh Brennan, Judge. The defendants were separately indicted, tried, and convicted for the crime of illegal practice of medicine, and each has appealed from such conviction. —

<p>Appeal from Webster District Court. — Hon.' C. G. Lee, Judge.</p> <p>The defendant, having been convicted of the crime of rape, appeals. —</p>

<p>Judgments: extent of lien. A judgment lien is purely a creature of 1 the statute, which is applicable alike to both legal and equitable interests in lands; but the lien does not attach to the land or create any property right in the judgment creditor; it simply attaches to the debtor’s interest in the land, and if his interest is subject to any infirmity or condition by which his interest ceases to exist the lien ceases with it.</p> <p>Same: interest of legatee: extent of judgment lien. Where the 2 executors were empowered by the terms of the will to sell the real estate to pay debts and legacies, a judgment creditor of one of the devisees, who was given an undivided interest in the residue of the estate, acquired no lien upon the land by virtue of the judgment which could be enforced against it in the hands of a purchaser from the executors, even though he purchased with notice of the judgment; the purchaser taking title through the executor and not through the judgment debtor.</p>

<p>Criminal law: abortion: necessity to save life: evidence. On the prosecution of a physician for abortion the burden is upon the state to negative the defendant’s good faith exercise of his best skill and understanding, believing the operation necessary to save the patient’s life. In the instant case the evidence is held insufficient to show that defendant did not in good faith and in the exercise of skill and understanding believe that the operation- was necessary to save the life of the patient.</p>

<p>Schools: notice of board meetings: sufficiency of notice. The 1 statute providing that a special meeting of the board of school directors- may be called upon notice of the time and place, delivered to each member in person, does not contemplate the mailing of notice to the members; and an attempt to serve notice by mail which does not reach the member to be notified is insufficient, notwithstanding the good faith of the secretary of the board in ■attempting to give the notice; and the proceedings of the board in the absence of a member to whom legal notice of the meeting was not given are invalid.</p> <p>Same: sale-of school property: power of electors : injunction. 2 The statutes expressly confer upon the electors of a school corporation, at the annual or a special meeting duly called for that purpose, power to direct the sale or other disposal of any school ■house or site, or other property belonging to the corporation; and a court of equity will only interfere with an exercise of this power, when the question, properly submitted, presents a clear ground of equitable relief. The mere fact that a school house had been built but never used for any purpose does not create in the taxpayer a vested right therein which will prevent a sale by the electors.</p>

<p>Appeal from Hardin District Court. — Hon. O. Gr. Lee, Judge.</p> <p>Action to recover damages for injuries received by plaintiff as a result of alleged negligence on the part of defendant in operating an automobile. There was judgment for plaintiff, from which defendant appeals.—</p>

— Hon. O. H. Kelly, Judge. Appeal from a judgment of the district court reducing an assessment upon certain real estate in the city of Charles City owned by plaintiff from $5,000 to $4,200.

<p>Appeal from Polk District Court. — IIon. Lawrence De Grane, Judge.</p> <p>The facts are stated in the opinion. —</p>

<p>Telephone associations: membership: transfer of same. In this • action by a mutual telephone company to enjoin defendants from connecting with or using its lines, it appears that the articles of the telephone association provide for a membership fee which entitled the member to one phone, and that they prohibit the sale of the membership right without first offering it to the association, except that a purchaser of the farm may have the first right to purchase the seller’s telephone rights. Held, that a warranty deed of the farm, with all appurtenances thereto belonging, did not operate to pass the vendor’s membership in the association to the purchaser, and that the association is entitled to enjoin the purchaser from connecting with and using the line.</p>

<p>Highways: removal of obstructions: parties. A township road i supervisor has authority to maintain an action to remove an obstruction from a highway, and where he joins with the township trustees as plaintiff, the right of the trustees to maintain the action is immaterial.</p> <p>Same: adverse possession: estoppel: evidence. Title to a highway 2 can not be acquired by adverse possession, although inclosed by fences and occupied by adjoining owners for more than ten yearsj but a highway may be so occupied that the public will be estopped from claiming it. In the instant case the evidence is held insufficient to estop the public from claiming the highway.</p> <p>Same: removal of obstructions: injunction. Where a landowner 3 assisted in erecting an obstruction in the highway, and a codefendant asserted that it would have been replaced if removed by the road supervisor, they were properly enjoined from interfering with the highway upon removal of the obstruction by the supervisor.</p>

<p>Appeal from Story District Court. — Hon. C. G. Lee, ' Judge.</p> <p>' The opinion states the ease. —</p>

<p>Appeal: special findings: conclusiveness. The appellate court 1 will not disturb the finding, in answer to a special interrogatory, which has support in the evidence.</p> <p>Evidence: matters of fact and not opinion. A witness who was at 2 the scene of the collision of an automobile with a horse and assisted in extricating the horse, was competent to state that the machine was in gear and that the brakes were not set, over the objection that the inquiry called for an opinion and not a fact.</p> <p>Same: nonexpert evidence: matters of observation. A nonexpert 3 witness is competent to testify to the appearance and actions of one who has suffered a personal injury, when confined to his own observations.</p> <p>Contributory negligence: evidence: habits. Where there were no 4 eyewitnesses to an accident, a general habit of the injured party, relative to his claimed negligence at the time of the injury, may be shown, as bearing on his exercise of care in that respect. Thus where it was claimed that decedent was asleep in his carriage when injured by collision with an automobile, it was competent to show his habit of sleeping when driving.</p> <p>Admission of evidence: harmless error. In this action for injuries 5 to decedent by collision of his horse and carriage with an automobile, evidence of the admissions of decedent with reference to his conduct with another horse and carriage, more than a year previous, was not reversible error, even if erroneously admitted.</p> <p>Evidence: transactions with a decedent. The testimony of the 6 mother of deceased that she had given him his time, that he worked for himself, collected his own wages, owned property and conducted his own business, was neither objectionable as incompetent, nor as relating to a personal transaction.</p> <p>Highways: negligent speed of automobile: instructions. An in-7 struction following the language of the statute, that one operating an automobile at an average speed of more than twenty miles-per hour is prima facie guilty of negligence, was not erroneous, although the language may be somewhat obscure.</p> <p>Same: operation of automobiles: care. The driver of an automo-' 8 bile is bound to know that people are likely to be traveling the highway at all seasons of the year, and all times of day and night, and he has no right to expect a free and unobstructed driveway.</p> <p>Emancipation of minor: evidence: sufficiency: waiver: instruc9 tion. Even if the testimony of a brother of decedent that decedent, a minor, had been living in his family, attending to his own business and drawing his own wages, was not sufficient to show his emancipation, the mother’s evidence that he had been emancipated was sufficient, in the absence of an objection on the trial that she was not the proper person to emancipate him; and as'such objection was not .made prior to submission of the appeal, it was waived, and failure to show that the father was not living was not material.</p> <p>Damages: instruction : presumption. Where there was no eviiodence that decedent’s harness was injured in a collision of his horse with an automobile, and no evidence of its value, it will be presumed that the jury followed -the instruction of the court, directing them to allow damage to the harness only in the event damage was proven; and it will also be presumed that no damage was allowed on that account, but if any damage was allowed on that account it must have been small, and no reversal should be ordered.</p>

<p>Drainage: assessment of benefits: review on appeal. The fact 1 that many considerations enter into the assessment of benefits in drainage cases by a board of supervisors will not relieve the courts, on appeal, of the responsibility of trying such questions, anew, when properly presented, although the action of the supervisors will not be lightly interfered with.</p> <p>Same: comparison of benefits. On appeal from an assessment of 2 benefits to a particular tract it is not necessary that a comparison of the. assessment with that of all the other tracts in the district be made, to entitle the question to consideration. Just how wide a range the comparison should take is a matter of judgment in each case, to be exercised by the complaining party at his peril.</p> <p>Same: assessments: how determined. The cost of constructing a 3 drain across a particular tract within a drainage district is not the basis for making the assessment to that tract and even though the assessment as made by the supervisors is less than the average cost per acre of constructing the drain across that tract, it may not be equitable as compared with the assessment of other tracts. A reduction of the assessment in the instant case by the lower court is held proper.</p>

— Hon. James A. Howe, Judge. This is a controversy between adjoining lot owners over the location of tbeir dividing line. The plaintiff brought this action to enjoin interference with his fence. There was a decree for the plaintiff establishing the line as claimed by him. The defendants appeal. —

— Hon. Wm. Theorhilvs, Judge. Suit to recover damages for a personal injury. Verdict and judgment for the plaintiff. The defendant appeals. — •

— Hon. W. H. McHenry, Judge. In proceedings instituted before a justice of the peace of Polk county for the condemnation and destruction of a barrel of beer, alleged to have been kept by defendants for sale in violation of law, the justice ordered that said property be condemned and destroyed.

— Hon. Charles E. Albrook, Judge. The plaintiffs filed before the city council of Et. Dodge their objections to a special assessment on their property for a street improvement.

<p>Appeal from Cerro Gordo District Court. — Hon. J. F-Clyde, Judge.</p> <p>From a judgment convicting Him of larceny from a dwelling the defendant appeals. —</p>

— Hon. K. E. Wilcockson, Judge. Action at law to recover damages for alleged negligence in the treatment of a diseased horse. Verdict and judgment for plaintiff, and defendant appeals. —

<p>Attachment: counterclaim: amendment on retrial: change of i issue. Where an attachment was dissolved on the ground that the fund garnished belonged to defendant as executrix and not individually, and on a counterclaim for damages the court on appeal held that defendant was not damaged, for the reason that the attachment did not prevent payment to her as executrix, an amendment to the counterclaim on retrial, alleging that plaintiff knew when the fund would be paid to the garnishee and that he would' retain the same until the garnishment was disposed of; that while the fund technically belonged to defendant in her representative capacity plaintiff knew that she had an individual interest therein, and that she could not make distribution until the garnishee was; discharged; and that the garnishment was made to injure and deprive her of her interest therein, did not change the issue tendered originally so as to avoid the effect of the prior decision, as it pleaded no facts as the basis of liability not appearing in the former record.</p> <p>Same: dissolution of attachment : attorney’s fees. Attorney’s fees 2 are not allowable for procuring the discharge of an attachment, where no property was wrongfully levied upon.</p>

<p>'Appeal from Des Moines District Court. — Hon. W. S. Withrow, Judge.</p> <p>Suit to require defendants, as trustees of the estate of George O. Lauman, to pay to plaintiff certain moneys as income derived therefrom; the same having been obtained by virtue of being given the right, as stockholders in a bank, to subscribe for additional stock. The petition was dismissed and plaintiff appeals. —</p>

— Hon. L. E. Eel-lows, Judge. Suit in equity to set aside a decree of divorce secured by defendant against one Wyman Luther, and to determine the interests of the plaintiffs in some real estate .in Buchanan County, Iowa. The trial court dismissed the petition, and plaintiffs appeal. —

— Hon. F. M. Powers, Judge. On petition of plaintiffs, a temporary guardian of the property of John K. Lang was appointed, and on trial the jury found that a permanent guardian should be appointed to manage his property and affairs. He appeals.

<p>Appeal from Iowa District Court. — Hon. E. P. Howell, Judge.</p> <p>The facts are stated in. the opinion. —</p>

<p>Public lands: decisions of interior department: conclusiveness, i The state courts are bound by a final decision of the Interior Department that lands are in fact swamp and subject to selection under the swamp land Act.</p> <p>Same: swamp lands: grant: title. The grant of swamp lands 2 under the Act of Congress of 1850 was a present grant, the legal title however remaining in the Government until selection by the counties for the purpose of identification; but upon obtaining legal title by selection it relates back to the grant itself.</p> <p>Same: taxation. The fact that the title to swamp land when ac-3 quired relates back to the grant by Congress will not of itself validate a sale of the land for taxes, made while the title stood in the Government or county; as during that time the land was exempt from taxation.</p> <p>Same: swamp land grant: effect. Under the swamp land Act of 4 1850, requiring selection and proof of the character of the land before patent to the state, the general government holds the legal title in trust for the state and county until the selection is made and the patent issued.</p> <p>Same: conflicting titles: estoppel. A wife holding a quitclaim 5 deed from the county conveying swamp land, made after the patent issued to the county, is not estopped from challenging the validity of a tax deed under a sale made when the land was not subject to taxation, by reason of the fact that her husband had made an invalid homestead entry -upon the land. Besides the estoppel pleaded was of no avail because the plaintiff must recover, if at all, upon the strength of his own title.</p> <p>Same: tax title to swamp land: proof. The holder of a tax title 6 to swamp lands can not rely thereon, in the absence of a showing that during the years for which the lands were taxed the state and county had parted with their title, or were estopped from claiming title thereto. In the instant case the evidence shows that the county had parted with its title to one of the lots in question, but not to the others, when the sales under which plaintiff claims were made.</p> <p>Same: estoppel. Where the county sold and retained the purchase 7 price of swamp land, and thereafter listed and assessed the same for taxes, it was estopped from claiming that the land was not sold and not subject to taxation, as against the holder of the tax title; and the county’s grantee was subject to the same estoppel.</p> <p>Same. Where the county made executory contracts for the sale of 8 swamp land which were never performed, and the deposits made thereon were kept intact and 'finally refunded, but the county levied assessments and sold the land at tax sale, it was not thereby es-topped to deny that it had parted with its title or that it was subject to taxation.</p> <p>Taxation: sales: Caveat emptor. The doctrine of caveat emptor 9 applies to purchasers at a tax sale, and they therefore take no-interest in lands not subject to taxation.</p>

<p>Wills: election by widow. A will bequeathing one-half of all tes1 tator’s estate to his widow in fee and the other half to her for life, with the provision that whatever remained at her death of the one-half given her for life should go to the heirs of the testator, gave the wife - a .life estate in the remaining one-half and left nothing from which she could take a distributive share; and she was required to elect whether she would take under the will or the statute.</p> <p>Same. The final report of the widow' as executrix under the will 2 of her husband, giving her one-half the estate in fee and the other half for life, which showed the probate of the will, full settlement of the estate, and that she was in possession of all the property, was a sufficient election to take under the will.</p> <p>Same: devise: heirs: nonresident aliens. Nonresident aliens can 3 not acquire real property under a will devising the same to the legal heirs of the testator; as the legal heir of another must have inheritable blood, and the statutes of this state prohibit such aliens from taking the property of testator, either by descent or devise.</p> <p>Same: remainder: when vested. A will bequeathing a life estate 4 to the widow and whatever may remain to the legal heirs of the testator, vests the remainder in those heirs qualified to take the property at the time of the testator’s death; it is only the enjoyment that is postponed.</p> <p>Acknowledgment of instruments: qualification of notary. An 5 attorney for the mortgagee in foreclosure proceedings has no such interest in the matter as will disqualify him from taking the acknowledgment of the sheriff’s deed, and thus render the same invalid.</p> <p>Co-tenants: ouster: adverse possession. Ordinarily a tenant in 6 'common can not hold adversely to his co-tenant, or a life tenant to the remaindermen; but this rule only applies where the.relationship is continuous. So that where a life tenant foreclosed a mortgage which she held upon the property and acquired a sheriff’s deed, the remaindermen having knowledge of the proceedings, and thereafter claimed to hold the property under color of the sheriff’s deed, there was a sufficient ouster to set the statute of limitations in motion.</p> <p>Wills: election: satisfaction of debt to legatee. Under a will 7 giving the widow one-half the property in fee and the remainder for life, the interest under the will being less in value than the amount of a valid mortgage held by her on the property, she was not put to an election; and as the will provided for the payment of all just debts, the doctrine of satisfaction of the mortgage has no application, as that question arises only where the legacy is equal to or greater than the debt.</p> <p>Former adjudication. To constitute a former adjudication there 8 must be an identity of subject matter, cause, parties and of quality of the persons: Thus in an action by remaindermen against those claiming under the life tenant who foreclosed a mortgage on the property and held it adversely for the statutory period, the judgment between the plaintiffs and a third person in the partition of other land owned by plaintiff’s testator was not an adjudication of plaintiff’s rights in this action.</p>

— Hon. C. Gr. Lee, Judge. Suit to recover damages occasioned by one of the defendant’s trains. Verdict and judgment for plaintiff. Defendant appeals. —

<p>Automobile accident: contributory negligence : evidence. The evi1 dence in this action is reviewed and held to show that plaintiff, the driver of an automobile which collided with a street car, was conclusively negligent in approaching the crossing, and that a verdict should have been directed for defendant.</p> <p>Same: last clear chance: submission of.issue. Where an auto-2 mobile accident was clearly the result of the driver’s negligence, and he was in no apparent peril up to the very moment of collision with a street car, when the accident was unavoidable, and there was no evidence that the motorman knew that plaintiff’s attention was diverted, there was no basis for submission- of the action on the theory of the last clear chance.</p> <p>Appeal: reservation of exceptions: motion for new trial. Where 3 defendant moved for a directed verdict at the close of plaintiff’s evidence, and again at the close of ' all the evidence, and requested several instructions asking for a directed verdict because of insufficiency of the evidence, saving proper exceptions to the court’s adverse rulings, the sufficiency of the evidence was reviewable on appeal although no motion for a new trial was made.</p>

<p>Appeal from Lee District Court. — IIon. Henry Bank, Judge.</p> <p>Proceedings in probate for an order to sell certain real estate, claimed to have belonged to Matilda Brumagem at the time of her death, in order to pay claims against her estate. Certain heirs of Mrs. Brumagem were made parties to the application, and three of these appeared and filed a demurrer thereto. The surviving husband of Mrs. Brumagem filed a petition of intervention, and one of the creditors also intervened, asserting her claim as such, and also as one of the heirs of the deceased. Defendants moved to strike parts of the second petition and for a more specific statement in the first one. The case was submitted on the demurrer to the application, and this demurrer was sustained and the application to sell dismissed. The administrator appeals. —</p>

— I-Ion. J. H. Apple-gate, Judge. ■ Action in equity to enforce the specific performance by defendant of a contract to convey entered into between defendant and plaintiffs. Plaintiffs alleged ownership of the property and the tender of a warranty deed constituting full compliance with the contract on their part and the refusal of the defendant .to accept.

<p>Wills: construction: life estates. In the construction of a will the court will give effect as far as possible to every part of the instrument for the purpose of carrying out the evident intent of .the testator. By one paragraph of the will in the instant case the testator gave his wife all his property of which he might die seised, and provided in subsequent paragraphs that after her death certain children should receive legacies, the residue to be divided equally between his children. Held, that the wife took only a life estate.</p>

<p>Specific performance. Specific performance of a contract is a mat-1 ter of equity rather than strict right.</p> <p>Contracts: parol evidence: variance. A condition precedent to the 2 effectiveness of a contract, which does not go to its terms but to the question of whether there was in fact a completed agreement, may be shown by parol.</p> <p>Same: specific performance: condition precedent. Where a con-3 tract to convey real estate was signed in triplicate by the husband alone, with the understanding that the wife was to sign one copy and when this was done the papers were to be exchanged, her signature was a condition precedent 'to the consummation of the contract, without which specific performance will not be decreed.</p> <p>Same: appeal: review. On an issue of specific performance which 4 is close in its facts some weight will be given the finding of the trial court, although the action is triable anew on appeal.</p> <p>Same: specific performance. Where the contract to convey land, 5 all subject to a mortgage and including the homestead, was not signed ’by the wife and upon request she refused to sign the same, and subsequently the land was sold to others who purchased in good faith, specific performance of the contract was properly refused on the ground that it might be detrimental to the interests of the wife and lead her into litigation.</p>

<p>Appeal from Scott District Court. — -Hon. William Theopiiilus, Judge.</p> <p>Suit iu equity to enjoin Hugh Corrigan from maintaining a liquor nuisance. Corrigan interposed a demurrer in the court below, which was sustained. From such ruling the plaintiff has appealed. —</p>

— Hon. Hugh Brennan, Judge. Suit to recover damages for the wrongful levy of an execution on exempt personal property. There was a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. Hugh Brennan, Judge. Action at law to recover damages for personal injury. There was a verdict and judgment for plaintiff, and defendant appeals. —

<p>Criminal law: seduction: evidence: instruction. Where an ac-I cused, by false promise, protestations of love, deception or other artifice, persuades a chaste woman to yield her virtue, when but for some ór all of these she would not have done so, he is guilty of the crime of seduction; and an instruction to that effect was proper, even though there was evidence that a conditional promise of marriage was what finally induced her to yield.</p> <p>Same: evidence. The question of whether the prosecutrix in this 2 case yielded in consequence of defendant’s false promise, protestations of love, deception or. other artifice, is held under the evidence to have been for the jury.</p> <p>Same: evidence. Where the question of sexual intercourse is re-3 duced to a mere matter of barter and sale, as a promise of future marriage in exchange for present sexual favors, it will not amount to seduction; but where a young girl yielded her virtue to one professing love and affection, had previously made her a promise of marriage and insisted that under the circumstances there was nothing wrong in the indulgence, the fact that she required him to renew his promise that he would marry her if anything happened was not sufficient to preclude his conviction for seduction.</p>

<p>Municipal corporations: street obstructions: negligence: evii dence. A city may authorize the use of areas for admitting light from the street to the basements of abutting buildings, and this authority may be implied from long acquiescence in their use; but a property owner may be liable for negligence in the use of the same, notwithstanding the permission. The evidence in this case, that defendant maintained a two-inch plank covering over the window grating in the walk, on which plaintiff stumbled and was injured, was sufficient to take the question of his negligence in so doing to the jury.</p> <p>Same: negligence: evidence. The property in this case was in 2 the possession of a tenant at the time of plaintiff’s injury, and the court instructed that defendant could not be held liable unless it was found that the obstruction was furnished by defendant for use by the lessee, for the purpose and in the manner it was used at the time of the accident. Held, that the evidence that defendant furnished the cover for the opening constituting the obstruction was sufficient to take the question of defendant’s liability to the jury.</p>

<p>Appeal from Scott District Court. — Hon. L. J.. Horan, Judge.</p> <p>Action for damages resulted in judgment against defendant, from which it appeals. —</p>

<p>Contracts: cancellation: equitable jurisdiction. The cancella1 tion of an instrument can only be obtained in an equitable action : So that where plaintiff pleaded a contract, its breach, and demanded liquidated damages, and defendant admitted its execution but denied its effectiveness because of certain conditions, and in a cross-petition pleaded fraud and asked a cancellation of the contract, the court properly transferred the cause to the equity side of the docket.</p> <p>Same: rescission: fraud: estoppel. A party is not estopped from 2 pleading fraud in the procurement of a contract until the fraud is discovered. Thus where a refusal to perform a contract for the exchange of lands was based on the ground that the contract was not completed, and defendant pleaded that all he knew of the land the adverse party was to convey was what he stated, and upon subsequent investigation found the statements false, he was not estopped from pleading the fraud, When sued for liquidated damages for refusal to perform, as ground for rescission.</p>

— -Hon. E. M. Hunter, Judge. Action for damages against an employer for personal injury sustained by his employee in a coal mine. The defense was a general denial and a plea of contributory negligence and assumption of risk. At the close of plaintiff’s evidence, the trial court directed a verdict for the defendant. Plaintiff appeals. —

— Hon. W. H. McHenry, Judge. Action upon a promissory note. There was an intervention by one Wilson, the payee of the note, and alleged assignor to the plaintiff. On May 29, 1911, judgment was rendered for the plaintiff upon the pleadings for the full amount of the note, $1,158. Two days later and at the same term a motion was filed by the intervener to set aside the judgment. On June 3 this motion was sustained in part, and the judgment as entered was modified.

<p>Insurance: indemnity against automobile accidents: legality, 1 Neither subdivision 5-cl. i, nor subdivision 5-cl. 2, of section 1709 of the Code Supplement of 1907, authorize the issuance of a policy indemnifying the owner or driver of an automobile, who is not an employer, against liability for damages resulting from an accident caused by the negligence of such owner or driver in operating the machine; as the first subdivision limits indemnity to personal injuries suffered by the insured himself, and not against liability for some negligent or wrongful act of his; and the second authorizes indemnity to an employer only, as against liability arising out of some act of his employee, and prohibits liability insurance not therein authorized.</p> <p>Same: foreign insurance companies: interstate comity. The leg-2 islature has power to prescribe the terms and conditions upon which foreign insurance companies may do business in this state, and the courts will not override the will of the legislature on the ground of interstate comity.</p>

— Hon. William Hutchinson, Judge. Action in equity. The nature of the controversy and the material facts are stated in the opinion. —

<p>Intoxicating liquors: petition of consent: reputable witness. A 1 single illegal act of one obtaining signatures to a petition of consent to the sale of liquor, done several years prior to obtaining the signatures, is not alone sufficient to disqualify him as a subscribing witness thereto, under the statute requiring that the signatures shall be accompanied by the affidavit of some reputable person.</p> <p>Same: signatures to consent petition. Where voters sign their . 2 names to a petition of consent to the sale of liquor in the sarpe manner as they appear on the poll list of the preceding election, though not in their usual and correct form, such signatures are in compliance with the statute requiring thát the petitioners shall be those voting at the last election, as shown by the poll lists.</p>

<p>Marriage and divorce: common law marriage. Cohabitation and 1 the reputed relation of husband and wife may be shown as tending to establish the relation of husband and wife and the mutual ■ recognition of the existence of a marriage, the fundamental inquiry being the. mutual intent of the parties, which will be established if it appears that they have lived together intending thereby •to become husband and wife; but neither the intention nor consent to the status of marriage can be inferred from cohabitation alone, and reputation will only be considered as bearing on the question of intent.</p> <p>Same: evidence. The evidence in this case is reviewed and- held 2 insufficient to establish a common law marriage, although tending to show cohabitation, and that in their business relations the parties acted in some respects as husbands and wives usually act.</p> <p>Same. Where the evidence shows a divided reputation in the com-3 munity on the question of a common law marriage it is without probative effect. ■</p> <p>Same: cohabitation. Where cohabitation in the beginning was 4 illicit, affirmative proof of a present intention to assume legitimate relations as husband and wife is essential to establish a marriage. In the instant case no such intention is shown.</p>

— Hon. Byron W. Preston, Judge. Action for slander. Defendant denied the alleged slander and pleaded certain facts in mitigation, which need •not be here set forth. On the issues joined, the case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $4,000, and defendant appeals.—

<p>Appeal from Mahaska District Court. — Hon. John B. Tabbott, Judge.</p> <p>Action for damages resulted in judgment against the defendant, from which it appeals. —</p>

— Hon. F. M. Powers, Judge. Action to quiet title in plaintiff to an undivided interest as tenant in common in a quarter section of land, title to which was at one time in Allen Murphy, plaintiff’s grandfather, of whose estate plaintiff claims that she is joint heir with the defendants, and asking partition. By cross-petition all the defendants save Joshua Murphy ask the same relief as to their joint undivided interests as heirs of Allen Murphy.

— Hon. W. G-. Clements, Judge. Plaintiff claims to be tbe illegitimate son of Evan H. Sldllman, deceased, who in his lifetime recognized such relationship. Sldllman died without will, and this action was begun to establish plaintiff’s alleged rights as an heir of the estate. Decree as prayed, and defendants appeal.

— Hon. W. H. Mo-Henry, Judge. This action and twenty others consolidated therewith are in the nature of appeals from special assessments levied by the city council of Des Moines for the expense of certain street paving. The particular nature of the controversy and the material facts are fully stated in the opinion, —

— Hon. Charles S. Bradshaw, Judge. The defendant was indicted for burglary. He entered a plea of not guilty. A trial was had to a jury.' A verdict of guilty was rendered, and judgment entered thereon. Defendant appeals. —

'Appeal from Polls District Court.-. — Hon. Chas. S. Bradshaw, Judge. Defendant, with three others, was indicted for the crime of breaking and entering the Polk county courthouse. He was separately tried, found guilty of the offense charged, and sentenced to the penitentiary for the term of ten years. Prom the judgment imposed, he appeals. —

<p>Municipal corporations: public improvement: exercise of power. 1 A city has statutory power to contract for a public improvement, and in doing so exercises a proprietary or quasi private power for its own benefit and that of the inhabitants, as distinguished from its legislative, public and governmental power; and is governed by the same rules in the exercise of such power as govern private individuals or other corporations.</p> <p>Same: liability of city: Ultra vires: estoppel: ratification. A 2 city having power to contract for a public improvement, irregularities in the exercise of that power will not relieve it from liability for benefits actually received under the contract: Nor can it escape liability on a plea of ultra vires, when the contract has been fully performed and it has received the benefits, but under such circumstances it is estopped, the same as an individual, from retaining the benefits and at the same time denying liability. Furthermore under the evidence in this case there w;as a ratification of the contracts for sewer construction, and a waiver of the right to object thereto.</p> <p>Same: accord and satisfaction. A compromise, accord and satis3 faction by a city with the holder of assessment certificates issued under a public improvement contract is as binding upon it as though a private individual.</p> <p>Judgments: former adjudication. The judgment in an action to ■ 4 enjoin the enforcement of special assessments, in which the city joined with the contractor and certificate holders as a party defendant, that the cost of the improvement could not be taxed against the plaintiff in that case and enjoining a further levy, but not determining any'question between the city and its co-defendants, was not an adjudication of the right of the assignees of the holders of the certificates to enforce the same in a subsequent action.</p>

— Hon. L. J. Horan, Judge. Suit in equity to enjoin defendant from tearing out a stairway which is used in common for adjoining buildings. The trial court dismissed the petition, and plaintiff appeals. —

— IIon. Hugh Brennan, Judge. Action upon a contract for services as a lecturer. There was a counterclaim for a' breach of the contract. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. John D. Oliver, Judge. In a proceeding instituted in tbe district court of Cherokee county by a petition filed by the plaintiff, asking the appointment of' a guardian for the defendant alleged to be incompetent to manage his affairs and addicted to the excessive use of intoxicating liquors, the judge of said court appointed Wm. Mulvaney temporary guardian for the defendant.

<p>Appeal from Hamilton District Court. — Hon. Robert M. Wright, Judge.</p> <p>The facts are stated in tbe opinion. —</p>

— Hon. Robert M. Wright, Judge. Action to recover damages for personal injuries received by plaintiff while employed in the defendant’s mine, alleged to have been due to the negligence of defendant. There was a verdict and judgment for plaintiff and defendant appeals. —

— Hour. William H. McHenry, Judge. Action for the purchase price of capital stock illegally issued resulted in judgment as prayed. The defendants appeal. —

— Hon. Hugh Brennan, J udge. Suit to recover damages for malpractice. There was a verdict and judgment for the plaintiff. The defendant appeals. —

— Hon. E. O. Platt, Jiidge. The defendant Netcott is a principal contractor, who entered into contract with the defendant school district for the erection of a schoolhouse. The plaintiff is a subcontractor, who furnished Netcott over $6,000 worth of lumber and material for the construction of such public building.

— Hon. K. P. Howell, Judge. Action to recover possession of certain real estate and to establish, plaintiff’s title thereto. Defendant demurred to the petition, and, this demurrer having been sustained, plaintiff elected to stand on his petition, and judgment was rendered for defendant. Plaintiff appeals. —

— Hon. R. P. Howell, Judge. Action to recover for rent alleged to be due from James Constantine, and to establish an alleged mortgage lien therefor on goods transferred by him through another to Demetrios Constantine. Relief, though for a lesser amount, was awarded as prayed. Demetrios Constantine appeals. —

— IIon. A. J. House, J udge. From an additional allowance to plaintiff of temporary alimony or suit money in a suit for divorce under the title above given, defendant. 'appeals.- —

<p>Pleadings: amendment. It was not an abuse of discretion for the l court to permit the defendant, at the close of all the evidence, to amend his counterclaim for the wrongful suing out of an attachment, so that the same would be based on the attachment bond.</p> <p>Wrongful attachmént: malice: burden of proof: instruction. 2 Under a counterclaim for wrongful attachment, an instruction that if plaintiff had no reasonable cause to believe the ground alleged for the attachment to be true, the jury might infer that it was maliciously sued out, was neither erroneous nor placed the burden on plaintiff to show want of malice; especially as the court further told the jury that the burden was upon defendant to show that plaintiff had no reasonable cause to believe that the ground stated for the attachment was true, which carried with it the burden of proving malice.</p> <p>Same: burden of proof. Where there is direct proof of malice in 3 suing out an attachment, it combines with the inference of malice to be drawn from the fact that the attaching creditor had no reasonable cause for believing that the ground of the attachment was true, in establishing the preponderance of evidence required of the party alleging that the attachment was wrongful.</p> <p>Same: exemplary damages : excessive verdict. The allowance of 4 exemplary damages and the amount thereof rests with the jury; and the instruction that where malice is found the jury is not limited to actual damages, nor required to scrutinize the amount of the verdict very closely, was not erroneous; as it could only be understood to apply to the amount of exemplary damages. There was warrant for the allowance of both actual and exemplary damages in this case, and the verdict is not so large as to warrant interference.</p>

— IIon. Hugh Brennan, J udge. This is an action at law upon a certificate of membership in the defendant association. Th,e defendant is a mutual association and purports to issue accident insurance to its members. Thomas D. Brinsmaid was one of its members in good standing. It is averred that he lost his life on November 27, 1907, by drowning at Long Beach, Cal. The circumstances of his death are made to appear by the evidence in the record.

— Hon. F. O. Ellison, Judge. Action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant. ' There was a verdict for the defendant) and from the judgment on such verdict the plaintiff appeals.—

<p>'Appeal from Jones District Court. — IIon. W. N. Treichler, Judge.</p> <p>Action for admeasurement of dower. Judgment decreed in favor of applicants. —</p>

— Hon, Hugh Brennan, Judge. TnE City of Des Moines instituted condemnation proceedings to award tbe damages to plaintiff’s leasehold, due to the construction of a viaduct over certain railway tracks in the City of Des Moines. The defendant sheriff selected a jury, which awarded the plaintiff the sum of $2,000.

- — IIon. M. E. Hutchison, Judge. The defendant was indicted with, one Roy Mertens for murder in the first degree.

— How. A. B. Thorn ell, Judge. Action to recover damages, resulting from injuries received by being thrown from a horse, which it is claimed became frightened at an automobile on the public highway.

— Hon. R. P. Howell, Judge. Action for personal injuries by reason of the alleged negligence of a brakeman. There was a demurrer to the petition which was sustained, and the plaintiff appeals.—

<p>Appeal from Linn District Court. — Hon. M. P. Smith, Judge.</p> <p>Action in equity to restrain the defendant from diverting tbe waters of a running stream from its natural course on his land to the land of the plaintiff and for damages. Judgment and decree for the plaintiff. —</p>