Volume 160 — Iowa Reports

— Hon. W. N. Treichler, Judge. Plaintiff’s intestate was struck and killed by one of the defendant’s trains upon a highway crossing. Alleging negligence of the defendant with respect to such accident this action is brought at law to recover damages. The plaintiff obtained verdict and judgment, and defendant appeals.

— Hon. Byron W. Preston, Judge. Action for damages resulted iu a directed verdict for defendant and judgment thereon. The plaintiff and intervener appeal.

<p>Appeal from Jasper District Court. — Hon. John F. Talbott, Judge.</p> <p>Action to recover for services rendered as a farm hand.</p>

— Hon. David Mould, Judge. Action to recover on an alleged overdraft and upon two promissory notes executed by defendant to plaintiff. Proper allegations having been made for an attachment, a writ was issued, which was levied upon defendant’s property. Defendant admitted the making of the notes in suit, but denied tbe overdraft, and, alleging that the grounds for attachment were false and untrue, filed a counterclaim for the wrongful suing out of the attachment.

— Hon. Milo P. Smith, Judge. Action to recover damages for the death of two' imported draft stallions, due to the negligence of the defendant, a common carrier, which undertook to transport them from the city of New York to Fairfax, Iowa. The trial court, upon motion, directed a verdict for the plaintiff in the sum of $200, and taxed the costs to the plaintiff. Plaintiff alone appeals.

—Hon. F. R. Gaynor, Judge. . . . This is an action for personal injuries. The plaintiff is the widow and administratrix of one M. W. Carter. Carter was a conductor or foreman in charge of a switching train of the Chicago, St. Paul, Minneapolis & Omaha Railroad Company.

<p>Appeal from Boone District Court. — Hon. C. G. Lee, Judge.</p> <p>This is an injunction proceeding brought by the plaintiff to challenge the correctness of the grade at which the defendant Electric Company maintains its street car tracks’ upon Tama street in front of plaintiff’s property in Boone. Upon trial there was a decree dismissing the petition, and plaintiff has appealed.</p>

— Hon. John F. Oliver, Judge. Action at law to recover commissions for assisting defendants in finding and securing certain real estate in the states of North and South Dakota. A jury was waived, and the case, on issues joined, was tried to the court, resulting in a judgment for plaintiff for part of the amount claimed, and defendants appeal.

— Hon. R. P. Howell, Judge. Action on a certificate of membership in the defendant association resulted in judgment for damages, from which it appeals.

— Hon. R. M. Wright, Judge. This action was brought for an accounting for a settlement of partnership affairs and to dissolve a partnership. There was a trial on plaintiff’s petition and on the defendant’s answer and cross-bill, and a decree. Plaintiff filed a motion for a new trial, which was sustained by the court, and the defendant appeals.-

<p>1 Negligence: injury to pedestrian: submission op issues: evidence. In this aetion for injury to plaintiff from being struck by a delivery wagon when the horse hitched to the same was not under the control of its driver, evidence simply that the horse stopped and then started at a high rate of speed as the driver went to his head to start him, did hot authorize submission to the jury of either the vicious character of the horse, or defendant’s alleged negligence in permitting the driver to handle him, or that of the driver in leaving his seat and going to the horse’s head to start him.</p> <p>2 Same. In permitting the horse to start rapidly while the driver was on the ground, and in failing to seize the reins after springing into the wagon and thus gain control of the horse, would have authorized the jury to find the driver negligent, and this issue was properly submitted.</p> <p>3 Same: what constitutes driving horses. One may be driving a horse faster than an ordinary and moderate gait, in violation of a city ordinance, though not at the time holding, the reins; as where the driver while on the ground started the horse on the-run and after getting into the wagon made no effort to seize the reins and control .the animal.</p> <p>4 Same: evidence: hearsay. Before the declarations of a member of a firm are binding upon the firm, it must appear that he had power to act for his principal, and that his act was within the scope of his authority.’ Thus plaintiff’s testimony that she was told that the horse and wagon which struck and injured her belonged to the defendant, a corporation, was not admissible, in the absence of evidence that her informant was an agent' or officer of defendant and had- authority to speak.</p> <p>5 Same: ownership oe property: evidence: presumptions: Where it appeared that defendant was engaged in the mercantile business and the vehicle by which plaintiff was struck and injured was a delivery wagon with defendant’s name painted thereon, while possibly but slight evidence of ownership, was sufficient to make a prima facie case, and in the absence of any showing to the contrary, to take the issue of ownership to the jury; and it will also be presumed that the person in possession of the wagon at the time of the accident was acting for the owner rather than for himself.</p>

<p>Appeal from, Scott District Court. — Hon. ¥m. Theophilus, Judge.</p> <p>Action to recover damages for injuries received by Harry Tbobe by a weight used on an elevator in defendant’s building, resulting in the death of Thobe. The defendant denied all negligence on its part and pleaded that the negligence, if any, was that of a fellow servant of Thobe. On the issues joined the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.</p>

— Hon. C. H. Kelley, Judge. The defendant was indicted, charged with the crime of larceny from a building. The indictment charges the taking of seventy-four mink pelts or skins, and alleges the value of the property taken to have been $303. Defendant was tried and convicted of the crime of larceny; the jury finding the value of the property taken to have been $88. He was sentenced to serve an indeterminate term in the penitentiary, not exceeding five years, and he appeals.

Certiorari from Carroll District Court. — Hon. M. E. Hutchinson, Judge. Proceedings in certiorari to review tbe action of the court in finding the petitioner, Ed. Harris guilty of contempt in the violation of a certain decree of injunction against certain premises.

<p>1 Criminal law: seduction: non-marriage: evidence. It must appear on a prosecution for seduction that the prosecutrix was an unmarried woman; but this faet may be sufficiently shown by proof of facts and circumstances warranting the inference that she was unmarried at the time of the alleged crime.</p> <p>2 Same: previous chaste character: evidence. A prosecutrix for seduetion is presumed to have been of previous chaste character; and where her previous character is assailed the issue is for the jury.</p> <p>3 Same: trial: misconduct in argument. Where the court told the jury that the prosecutor had no right to slate in their presence that many witnesses had been subpoenaed to assail the character of the prosecutrix but had not been called, and that they should only consider the evidence on the subject and give no heed to the remark of counsel, any prejudicial effect from such statement was obviated.</p>

<p>1 Estates of decedents: action by foeeign administrator. Ordinarily a foreign administrator cannot sue in this state to recover assets belonging to the estate until lie has qualified under the statute of this state; but where there was neither property, creditors nor beneficiaries of a non-resident decedent, and no administration was ever granted here and no one entitled thereto, a foreign administrator may sue in this state on a cause of action for decedent’s death, accruing in another state and under a statute of that state, for the benefit of the widow and next of kin.</p> <p>2 Same: limitations: pleadings. A foreign statute limiting the time of bringing actions must be pleaded and proved, when relied upon as a defense to an action brought in this state. And where the petition in an action by a foreign administrator against a non-resident defendant, for the negligent death of his intestate, brought under a statute of the foreign state limiting the time of bringing action, failed to allege as required by the law of that state that decedent left a widow and next of kin, but the evidence showed that fact, and the court, after verdict, allowed an amendment to conform the petition to the proof in that respect, defendant was not then entitled to plead the statute of limitations; as such a plea is an affirmative defense which defendant was entitled to plead regardless of the insufficiency of the petition to state a cause of action.</p> <p>3 Same: limitations: statutes. A cause of action arising under a foreign statute is not barred by the statute of such state limiting the time of bringing actions, but is barred by.the provisions of Code section 3452, providing that such actions are barred here whenever barred by the foreign statute under which they arose.</p> <p>4 Same. The statute of limitations is tolled by the commencement of an action, and will not run against an appropriate amendment to the petition, filed after the expiration of the statutory period.</p> <p>5 Same: procedure. Where suit upon a cause of action arising under a foreign statute was commenced in this state within the statutory period, the court acquired jurisdiction, and the procedure of this state and not that of the state where the cause of action arose governs thereafter; so that it was proper to permit an amendment to the petition after expiration of the statutory period, even though such amendment would not have been permitted in the courts of the sister state.</p>

— Hon. R. M. Wright, Judge. On an indictment for murder in the first degree, defendant was convicted of murder of the second degree, and sentenced to imprisonment in the penitentiary for fifteen years, from which sentence he appeals.

<p>1 Mutual insurance: contract: conditions precedent. Where the contract of insurance of a mutual benefit association, as embodied in its articles of incorporation and. by-laws that are made a part of the contract, provides that upon acceptance of the application the association will issue a certificate of membership, which shall be effective only from the date of its delivery, and while the member is in good health and free from disability, the certificate is not operative until the date of its delivery, although previously issued ; and the insured cannot recover for injuries received prior to that date, in the absence of fraud or some legal reason for avoiding that provision of the contract.</p> <p>2 Same: waiver oe conditions. The provisions of an insurance contract that it shall not become effective until delivery to the insured, and while in good health and free from disability, may be waived by the company for whose benefit they are made; but such provisions are not waived by delivery at a time when the insured was laboring under disability, which faet was concealed from the company.</p>

— Hon. A. N. Hob-son, Judge. Suit in equity to enjoin and restrain defendants, their agents, servants, and employees, from demanding, collecting, or receiving any amount whatever under a contract or arrangement entered into between them, which contract, it is claimed, was and is monopolistic in character; invalid, because in restraint of trade; and unfair, because intended to drive, all competitors from the market. -, The trial court granted part of the relief prayed, and…

<p>1 SDrainage: assessment: notice of appeal: jurisdiction. Where the notice of appeal from an assessment for drainage purposes is given by one previously a stranger to the proceedings, in which specific land is described as belonging to the appellant, the district court does not acquire jurisdiction to review the assessment of other land within the district.</p> <p>2 Same: appeal: tbial de novo. Drainage proceedings are triable de novo on appeal, and the question of jurisdiction may be raised at any stage of the proceedings, either in the trial court or on appeal.</p>

— Hon. C. H. Kelley, Judge. Action by tbe administrator of the estate of Peter Fillenwarth to recover certain property of decedent, alleged to have been appropriated by defendant, and also the amount owing on certain notes, alleged to have been executed by the latter to decedent. Judgment was entered as prayed, from which defendant appeals.

— Hon. David Mould, Judge. Action at law upon a policy of life insurance. Trial to jury, verdict and judgment for plaintiff, and, defendant appeals.

— Hon. D. M. Anderson, Judge. Suit in equity by plaintiff, a daughter of John Klise, to set aside a deed executed by said John Klise to his brother George because of alleged mental incapacity and undue influence. Plaintiff’s petition was dismissed, and she appeals.

<p>1 Actions: misjoinder or causes and parties. Causes of action upon. distinct contracts, all of which are between the same parties and have relation to business of the same general character, may be sued in one action. Thus an employer, under separate contracts for different periods, and the surety for the faithful performance of the contracts, may be joined in one action upon the several contracts.</p> <p>2 Principal and surety: liability op surety: measure or damages: instruction. Where there was no evidence that the surety- on a fidelity obligation was not aware of the state of the account between his principal and the employer, at the time he beeame responsible for the performance of the former’s contracts, an instruction that the liability of the surety should be measured by that of his prineipal and recovery awarded accordingly was not erroneous, simply because the indebtedness of the principal arose largely under earlier contracts, and because the failure of his principal to settle the earlier claims was not communicated to the surety before entering into new contracts.</p> <p>3 Same: contracts of employment: settlements: presumption. Where contracts of employment contained no reference to a settlement of prior dealings between the parties, and there was no provision for any continuing obligation, except the agreement to make new contracts after a stated period if the employee satisfactorily performed- the service, no presumption in law of a settlement of mutual claims prior to the time of making a new contract arose.</p> <p>4 Same: breach of contract: counterclaim : waiver: pleading. Where an employer sued upon separate and independent contracts of employment covering successive periods to recover from an employee the amount claimed to be due, treating the several contracts as distinct causes of action, the employee, a traveling salesman, was entitled to counterclaim for breach of contract, including a claim for excluding him from part of his territory assigned him by the contracts; unless the right of counterclaim had been lost or waived, which fact constitutes an affirmative defense and must be pleaded to be of avail.</p> <p>5 Same: settlement: evidence. The fact that new contracts are entered into between the parties is not conclusive that there was a settlement or adjustment of claims arising under earlier contracts, but its weight and effect are for the consideration of the jury.</p> <p>6 Same: pleadings: evidence. In general a party alleging a material and disputed fact is entitled to put in evidence any and all legitimate matters having a tendency to establish its truth. So where the defendant, a traveling salesman, alleged by way of counterclaim that his employer through his auditing agent had refused to allow him to make sales in part of his territory according to his contract of employment, and had refused to supply goods to fill his orders, evidence of the statements and conduct of the auditor, who was authorized to settle the accounts of salesmen, was admissible in support of the allegations.</p> <p>7 Same: liability of surety. The liability of a surety for the performanee of an employment contract cannot exceed that of his principal.</p>

— Hon. K. B. Willcockson, Judge. Action in equity to reform deed and recover for shortage, in acreage. There was a counterclaim. On hearing, both petition and counterclaim were dismissed without prejudice to the. beginning or maintenance of an action on either at law. The plaintiff appeals.

— Hon. F. M. Hunter, Judge. Action to require defendants to levy a tax for the payment of a certain judgment against the city of Chariton resulted in an order as' prayed without prejudice to the maintenance of a suit to set aside or correct said judgment because of illegal warrants having been included therein.-

— Hon. A. D. Bailie, Judge. Proceeding to quiet title upon petition and cross-petition. Decree, from which both parties appeal.

<p>Appeal from Dallas District Court. — Hon. W. H. Fahey,Judge.</p> <p>The opinion states the case.</p>

— Hon. Chas. Albrook, Judge. Appeal from an award of damages in a drainage proceeding. There was a verdict for the plaintiff for an amount, larger than that allowed by the Supervisors, and the Supervisors appeal.

— Hon. C. B. Bradshaw, Judge. Proceedings by certiorari to test the right of the Attorney-General to appear before the grand jury in the county of Marshall. The right was denied by the court below.

<p>1 Appeal: review of instructions : motion for new trial. Any matter which has been passed upon by the trial court and the ruling properly excepted to may be reviewed on appeal without a motion for a new trial. So that a motion for new trial is not essential to a review of instructions given by the court, as the same are of necessity considered, determined and passed upon by the court in preparing and reading them to the jury. The statutes concerning motions for new trial have relation to those matters which eannot otherwise be called to the attention and pa'ssed upon by the trial court.</p> <p>2 Evidence: mortality tables: admissibility. Mortality tables are admissible in personal injury actions for the purpose of aiding the the jury in arriving at the probable expectancy of the injured party, in view of .all the conditions surrounding the life of the particular individual, both before and after the injury; and are applicable to eases where the injuries are such that in aJJ probability the life of the injured person will be materially shortened, although not of the same probative force as where the nature of the injury is not such as to affect longevity, or where death occurs.</p> <p>3 Same: instructions. Where mortality tables are introduced in evideneé the jury should be carefully instructed as to the effect to be given such evidence, that they may not be misled concerning its value and weight. Thus where plaintiff suffered injuries likely to shorten his life, the court should have clearly directed the jury that future damages were recoverable only for such length of time as the plaintiff was likely to live in his injured condition, rather than have authorized recovery for the length of time plaintiff would probably have lived if uninjured, and shoirld have limited consideration of the mortality tables as evidence to that end.</p> <p>4 Master and servant: negligence: assumption oe risks: instruutions. A servant assumes the ordinary risks incident to his employment, but the extraordinary risks created or enhanced by the employer’s negligence are not assumed, unless so obvious that he should have known of them, and in that event he is held to have had knowledge; so that an instruction submitting plaintiff’s assumption of certain risks arising from defendant’s alleged negligence, omitting the element of what he might have known in the exercise of reasonable care was not erroneous, as applied to the facts in this cáse. And even though he knew of "the defectivo conditions it would not necessarily follow that he appreciated the danger.</p>

<p>1 Criminal law: adultery: evidence. The correspondence between one charged with adultery and her paramour is admissible in a prosecution for the offense for the purpose of showing an adulterous disposition, although prior to the time of the alleged crime.</p> <p>2 Saíne: evidence. The evidence on this prosecution for adultery is held sufficient to support conviction.</p> <p>3 'Same: sufficiency of evidence. Although mere opportunity, coupled with an adulterous disposition, is not alone sufficient to warrant conviction for adultery, still where opportunity and disposition is supplemented by evidence of the situation and position of the parties, there may be a conviction without proof of actual co-habitation.</p> <p>4 Same: instruction. Where the court clearly instructed that defendant could only be convicted upon proof beyond a reasonable doubt of adultery committed in' the county, consideration of like acts or admissions outside of the county was thereby excluded, except for the purpose, of showing an adiilterous disposition.</p> <p>5 Same; former adjudication. An acquittal of one of the parties guilty of adultery is not a bar to a prosecution of the other.</p> <p>6 . Same: excessive sentence. The maximum sentence of three years in the penitentiary for the crime of adultery is held excessive in this case, and is reduced to three months in the county jail and a fine of $100.</p>

<p>1 Evidence: expert testimony: personal injury: cause or pain. Where a physician has qualified as an expert he may state whether the physical condition of his patient might, with reasonable probability, be attributed to a certain injury; as, where plaintiff received an injury to his head, it was competent for the physician to state whether severe headaches and defective hearing were reasonably attributable to the injury, although he should not be permitted to state what in fact caused the same.</p> <p>2 Highways: travelers: duty to turn out or look behind: negligence. No duty rests upon the driver of a vehicle to exercise care to avoid collision with another approaching from the rear, until he has become aware of danger from that source. He is not required to turn aside to permit the vehicle in the rear to pass, or to look and listen before slowing or stopping his own, unless aware that the approaching vehicle is in such close proximity as to constitute negligence on his part to slacken his speed or stop.</p> <p>3 Special Interrogatories: failure to answer. Failure of the court to require the jury to answer a special interrogatory before receiving the verdict, which was not insisted upon at the trial, is not the subject of complaint on appeal.</p> <p>4 New Trial: inadequacy of verdict. Where there is uncontroverted-evidence of substantial damage in a personal injury action, a verdict for $1 should be set aside as inadequate, and a new trial should be granted.</p>

<p>1 Trial: withdrawal of issues: when conclusive. Withdrawal from the jury of a defense of fraud pleaded by a guarantor, from which no appeal was taken, is conclusive and cannot be questioned, on an appeal upon other grounds.</p> <p>2 Contracts: guaranty: fraud. One who has procured a contract by falsehood and deceit will not be heard to say when attempting to enforce the same in a court of equity, that the injured party should not have allowed himself to be deceived, even though the false statements were made by an agent. Thus where a guarantor, who was unable to read, claimed that the contract was procured by the fraud of plaintiff’s agent, who read the document to him as a mere recommendation rather than as a financial obligation which it in fact .was, he could not avoid the effect of the agent’s deceit upon the theory that the grantor should not have relied thereon. 3 Same: construction: notice: waiver. The doubtful provisions of a contract will be construed most strongly against the party preparing the instrument. So that where a contract of guaranty prepared by the obligee "waived "acceptance and all notices,” notice of acceptance was unnecessary, but the guarantor was entitled to notice of his principal’s default. 4 Same: counterclaim: insufficiency of evidence. The evidence in this action upon a contract of guaranty, to which defendant pleaded a counterclaim for failure to notify him of the default of his principal, is held insufficient to authorize a submission of the counterclaim to the jury.</p>

<p>Appeal from Lee District Court. — Hon. H. Bank, Jr., Judge.</p> <p>Action for deceit, brought by plaintiff against defendant, who is her mother-in-law, in which she claimed that she was induced to enter into a marriage with defendant’s son by reason of certain false and fraudulent representations regarding the ownership of certain land. Defendant pleaded a general denial, and on the issues so joined the case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $1,600, and defendant appeals.</p>

<p>Appeal from Madison District Court. — Hon. W. H. Fahey, Judge.</p> <p>Action in replevin to recover a half interest in a certain' safe levied on under execution, and claimed to be exempt on the grounds that the plaintiff was a physician and surgeon and used the same in and about his business.</p>

— IIon. William Theophilus, Judge. Suit in equity to enjoin the maintenance of a liquor nuisance in the city of Davenport.

— Hon. F. W. Eicheeberger, Judge. Action for breach, of promise of marriage. Seduction was also pleaded in aggravation of damages. Defendant denied generally and pleaded a settlement; accord and satisfaction. Plaintiff denied the settlement and pleaded that a receipt set forth in defendant’s answer had been altered, changed, and forged after she had signed and delivered the same.

<p>Appeal from Hardin District Court. — Hon.. Chas. E. Albrook, Judge.</p> <p>Action upon a policy of insurance against loss by fire. Decree for plaintiff. Defendant appeals.</p>

<p>1 Appeal: assignment op error: bill op exceptions. Misconduct in argument will hot be reviewed on appeal unless the alleged erroneous matter is presented by a proper bill of exceptions.</p> <p>2 Same: bill of exceptions signed by attorneys. A bill of exceptions signed and sworn to by the attorneys for one of the parties, after a refusal by the court to sign the same, is not in compliance with the statute applicable to such ease, and will not be considered.</p> <p>3 Evidence: mental capacity. While a non-expert witness cannot testify to the insanity of a person before he has detailed the particular facts upon which he bases his conclusion, this rule does not apply where he is called to testify to the sanity gf a person at a particular time; and where he has known the party inquired about for some time and never knew anything unusual in his speech or actions, he may state as his conclusion that the party was sane, without giving any special reasons therefor.</p> <p>4 Same: rebuttal evidence. Where the defense in a criminal prosecution offered evidence of the insanity of defendant, the state was entitled to prove sanity covering practically the same time as the evidence for the defendant, though not confined to the time of defendant’s criminal act.</p> <p>5 Criminal law: confession : admissibility. The written confession of a crime, showing upon its face that it was made without threats or promises of any kind, supplemented by the testimony of those present that it was freely made, is admissible over the objection that the same was not voluntary.</p> <p>6 Same: murder: self-defense: instructions. Where the defendant, armed with a deadly weapon, sought for deceased who was unarmed and trying to escape, and shot and killed him, and there was no evidence that the act was done in self-defense, refusal to instruct on that subject was not erroneous.</p>

— Hon. C. G. Lee, Judge. Action for writ of mandamus to compel defendants as school directors to maintain a school. To the petition as amended demurrer was filed which was sustained. Plaintiff elected to stand upon his pleading, and judgment was rendered against him for costs. He appeals.

— Hon. Hugh Brennan, Judge. . Action to recover for services and for expenses incurred under contract of employment. Trial to a jury. Verdict and judgment for plaintiff, from which defendant appeals.

<p>1 Fraudulent conveyances: knowledge of grantee. Fraud of the grantor alone is not sufficient to cancel a conveyance on that ground; it must also appear that the grantee had knowledge of the grantor’s fraudulent intent, or of facts which would put him on inquiry.</p> <p>2 Same: mortgages: foreclosure: prior conveyance: attack by mortgagee. In this action a deed creating an estate for years in certain grantees and a life estate in others was recorded, and thereafter plaintiff accepted a note of the grantor and another in settlement of his claim, for which a new note of the grantor and wife was later substituted and secured by a mortgage purporting to cover the entire interest in the land so conveyed. Held, that the mortgagee in relying on his mortgage took, not according to its terms, but such interest in the premises as the grantor had, which he was presumed to know; and that he could not attack the deed as fraudulent in his action to foreclose the mortgage.</p> <p>3 Same:. subsequent creditors : right to attack. A conveyance of property cannot be attacked as fraudulent by one holding a claim - against the grantor which arose after the conveyance.</p> <p>4 Same: burden of proof. One attacking a conveyance as fraudulent has the burden of showing the amount of his claim which arose prior to the conveyance and was thus affected by the fraud, that his rights may be definitely determined.</p>

— Hon. M. E. Hutchinson, Judge. Action in partition involving the construction of a will giving to tbe wife a life estate in her husband’s property, .and involving her right to take both the life estate and her distributive share, and involving also the question whether or not the wife elected to take the life estate bequeathed her, in lieu of her statutory rights, the rights of the parties accruing under statutes enacted prior to the statutes now in force.

<p>Appeal from, Keokuk District Court. — Iíon. B. W. Preston, Judge.</p> <p>Action for damages for alleged malpractice. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.</p>

— PIon. Hugh Brennan, Judge. Action at law to recover the value of a horse killed by the defendant. Defendant pleaded that he was a regular police officer of the City of Des Moines, and also a regular police officer of the Iowa Humane Society, and that in virtue of his authority as such he killed the horse in question, after he had been examined by two veterinary surgeons and pro-nounced “disabled and unfit for further use;” for the purpose of ending his suffering.

<p>1 Action for money paid: issues: evidence. In an action for money alleged to have been expended for defendant’s benefit, to which defendant pleaded that the expenditure was in connection with a joint venture for the benefit of both, evidence that defendant was ready and willing to account for and to pay plaintiff his share of the profits, was relevant and unobjectionable as raising an equitable issue.</p> <p>2 Same: admission of incompetent ' evidence : prejudice. The admission of incompetent and immaterial evidence is not ground for new trial, where the same was in strict accord with appellant’s own evidence and could not have tended to prejudice the jury, or to divert their minds from the issues in the case.</p> <p>3 Same: burden of proof: instruction. A party cannot complain of an instruction which conforms to Ms pleading' and proof. Thus where plaintiff alleged and his evidence tended to show that he purchased certain property for the benefit of defendant, at his request, and that he agreed to repay the plaintiff for the same, plaintiff could not complain of an instruction that the burden was on him to prove such facts.</p>

<p>Instructions: how construed. In determining whether an instruction would tend to mislead the jury the court will consider the charge as a whole. The issues in this case, involving the question of whether in the purchase of a certain business plaintiff was to receive one half the net profits arising from its operation, and whether payments received by him were intended to apply on such profits; or whether the amount invested by plaintiff was a loan on which the payments were to apply, were clearly submitted by the instructions given when considered as a whole.</p>

Cou-rt. — Hon. Lawrence De Crape, Judge. Action to recover for professional services performed by plaintiff for defendant. There was a directed verdict for plaintiff. Defendant appeals.

— Hon. F. M. Hunter, Judge. Action to recover commission for sale of real estate. Opinion states the facts. Trial to a jury. At the conclusion of plaintiff’s testimony, the court directed a verdict for the defendant. Plaintiff appeals.

W. H. Fahey, Judge.. Action at law upon a certificate of membership, issued by the defendant, a beneficiary society, to Ralph Y. Collier. By the terms of the certificate, defendant agreed to pay to Mirtel G-. Tomlinson, a sister of the insured, the sum of $500 in ease of death of the member within one year from the date of the certificate; $750 in the event it occurred during the second year; and $1,000 in the event it occurred after the second year.

— Hon. A. D. Bailie, Judge. Plaintiff sued to recover damages for the partial destruction of thirty-one acres of meadow and hay land, and for rendering the same of less value for said purposes; and in a second count for burning twenty tons of tame hay in stack, alleged to have been negligently caused by sparks from one of defendant’s engines. Plaintiff claimed $300 on both counts. There was a trial to jury and a verdict and judgment for plaintiff for $230. Defendants appeals.

— Hon. Hugh Brennan, Judge. This is a certiorari proceeding brought by the plaintiff in this court. The petition challenges the legality of certain orders of the defendant as district judge of Polk county and avers the same to be illegal and void on the ground that they were entered without authority of law and in excess of jurisdiction. We are called upon to review the legality of the order complained of.

<p>1 Railroads: evidence: conclusions. Where a witness was shown to be familiar with the usual, proper and customary manner in which the duties of brakemen were ordinarily performed, he was competent to state whose duty it was to put out signal flags, although the inquiry was in the form of a question as to the duty of a third party.</p> <p>2 Same: negligence: pleadings.- limitations. An amendment to the petition in an action for negligence, though filed more than two years after the cause of action accrued, whieh was a mere amplification of the original charge of negligence, was not subject to the bar of the statute of limitations.</p> <p>3 Same: negligent assumption op risk. Where a servant has been put to work in a place where signals or guards are reasonably necessary to his safety, the duty of providing such signals or guards devolves upon the master, and the servant may assume that such precaution has been taken for his protection, unless he himself was charged with the duty or knew that the master had not provided therefor. Thus where a servant was directed to go under a car which was standing upon a side track to make repairs, the company was negligent in failing to provide signals to prevent the moving of the car while he was thus engaged.</p> <p>4 Same: negligence op pellow servant. A servant injured while repairing a railway ear, by a moving engine or car negligently brought in collision therewith, is within the protection of the statute abolishing the fellow servant rule in cases of negligent acts by an employee, when such negligence is in connection with the use or operation of a railway. In the instant case the liability of defendant was the same whether the co-employee was a vice-principal or fellow workman.</p> <p>5 Same: contributory negligence. The plaintiff, who was directed to repair a car from beneath, was not negligent as a matter of law in failing to ascertain, either by asking or inspecting, whether the company had performed its duty in setting out warning signals for his protection.</p>

— Hon. John F. Talbott, Judge. Action to recover damages for injuries received by plaintiff, who was a servant of' the defendant company, engaged in operating a gasoline engine, for the purpose of pumping water from a coal mine.

— IIon. Charles E. Albrook, Judge. This is an action for damages brought under the provisions of the Employer’s Liability Act enacted by Congress. The action was brought by the administrator in behalf of the parents of the deceased. There ivas a verdict for the plaintiff, and the defendant has appeal.

<p>1 Negligence: building operations: evidence. In this action for the death of a child while upon a public street, caused by the fall of a plank negligently knocked from or near the top of a hoisting tower by a cement bucket as it was being hoisted, the evidence is held to require submission of the question whether defendant was negligent in hoisting the bucket after it was too late in the day for the workmen to see where the bucket should be stopped.</p> <p>2 Same: building operations: negligence: degree op care. It will not be presumed from the simple granting of a permit to occupy a portion of a public street with material and machinery 'in the construction of a building, that more than a reasonable use of the street essential to that purpose was granted. And while travelers, including children, may not complain of such obstructions or of injuries sustained in coming in contact therewith, it is still the duty of the contractor to exercise care commensurate with the danger in using such instrumentalities. He will not be excused from liability for his negligence causing an injury and death by the fact that his material and machinery were by permission located in the street, but he is subject to the same rule of care which is exacted of owners of buildings abutting upon the street to guard' against objects falling therefrom; that is the highest degree of care.</p> <p>3 Same: death op minor: damages: evidence. In an aetion for the wrongful death of a minor, evidence of his father’s trade and-occupation is admissible, as tending to show what vocation the decedent would likely have followed but for his untimely death; and in the instant case evidence of the value of property accumulated by the father may have tended to corroborate his testimony as to his past earnings and was not prejudicial, especially as the amount of his cash in bank was developed on cross-examination.</p> <p>4 Same: evidence: relevancy. Where it did not appear that deeedent, a young child, had gone in close proximity with the work or machinery, the inquiry as to whether the father had cautioned him to keep away from the men, teams and machines, was irrelevant and properly refused.</p>

— Hon. F. M. Powers, Judge. Suit to recover $1,235 for false representations, by an agent of the defendant, in the sale of ten shares of stock in defendant corporation. There was a verdict and judgment for plaintiff in the sum of $500. The plaintiff appeals.

<p>Appeal from Blachhawk District Court. — Hon. Franklin C. Platt, Judge.</p> <p>Indictment for murder. From sentence of imprisonment upon a conviction of manslaughter, defendant appeals.</p>

Hugh Brennan, Judge. Suit in equity by resident taxpayer against the city of Des Moines and a contracting construction company to enjoin them from constructing a sewer known in the record as the seventh ward sewer, and from assessing plaintiff’s property in payment therefor. There was a decree dismissing the petition, and the plaintiff appeals.

•Appeal from Shelly District Court, Hon. O. D. Wheeler, Judge. Proceeding by trustee in bankruptcy to recover property for the benefit of the creditors of the insolvent debtor. Decree for defendants. Plaintiff appeals.

— Hon. F. M. Powers, Judge: Appeal from an order granting a temporary injunction, restraining defendants from operating a saloon in the town of Charter Oak.

F. M. Powers, Judge. ' Defendants were enjoined from operating a saloon on lot 3 and block 3, in the town of Charter Oak, Iowa, on three grounds: First, that the business was not conducted on a public business street; second, that the bar was not in plain view from the street; third, that they sold to minors. Defendants appeal.

— Hon. F. M. Powers, Judge. Action to enjoin defendant from maintaining a dam across Coon river, and for damag-es claimed to have been sustained by the plaintiff by tbe backing of water upon his land above the point where it is claimed the dam was erected and maintained. Judgment and decree for the defendant. Plaintiff appeals.

Milo P. Smith, Judge. Action in equity upon a benefit certificate, issued by the defendant company, upon the life of William G. Wales. The beneficiaries named in the certificate were the wife and surviving children of the insured.

Milo P. Smith, Judge. Suit in equity on behalf of the owner of real estate to enjoin a tenant from removing'a building therefrom which liad been erected by the tenant thereon during his tenancy.

Charles S. Bradshaw, Judge. Action in equity to enjoin-the sale and transfer of the business and property of the Des Moines Life Insurance Company. Application for issuance of preliminary -injunction denied, and plaintiff appeals. The material facts are stated in the opinion.

— Hon. R. P. Howell, Judge. Action by plaintiff as a taxpayer of the city to enjoin defendant city and its officers from, issuing any bonds, notes, or other obligations of said city in payment for work or material done or furnished by defendants Lehmann & Bradley, under a contract for paving Court street, in said city, and from incurring any obligation on the part of said city by reason of the grading, curbing, or paving of said street, and from using any of the public funds…

— Hon. Byron W. Preston, Judge. The plaintiff purchased from defendant a team of mules which he alleges defendant warranted to be gentle and true and not liable to run away. Plaintiff paid the agreed price and took the mules but alleges that on attempting to use them they promptly ran away with him and proved to be intractable and unmanageable.

— Hon. Z. A. Church, Judge. * * Action of replevin for the possession of a note executed by the plaintiff. Verdict and judgment for plaintiff. The chemical company appeals.

Milo P. Smith, Judge. The plaintiff filed a petition for divorce March 22, 1911, alleging that he had been a resident of Linn county for four years. An original notice was served on defendant in Barton county, Mo., and decree was entered as prayed April 12, 1911. The defendant filed a petition August 12th, following, praying that the decree be set aside. This petition was dismissed, and the decree granting the divorce confirmed. The defendant appeals.

W. H. Fahey, Judge. The defendant Johnston paid to the treasurer of the plaintiff county certain taxes levied upon certain national bank stock. The act under which the levy was made was afterwards declared invalid. Thereupon the county refunded to the defendant the amount so paid by him. Thereupon the county brought this action to recover of the defendant the tax so refunded. Judgment for the defendant. Plaintiff appeals.

W. H. Treichler, Judge. Appeal from tbe action of the court in. setting aside the submission of the cause and granting plaintiff leave to file an amendment to his petition.

<p>Appeal from Fayette District Court. — Hon. A. N. Hobson, Judge.</p> <p>Action for deceit practiced in a land deal.</p>

— Hon. Hugh Brennan, Judge. Action at law to recover damages for injuries to land alleged to have been occasioned by the diversion of flood waters upon the premises of the plaintiff. There was judgment for plaintiff, and defendant appeals.

<p>1 Wills: CONSTRUCTION: WHEN DEVISE BECOMES EFFECTIVE. A devise to one person with a devise over to another in ease the first named beneficiary dies without issue, is to be interpreted as having reference to the death of such beneficiary before the will takes effect by the death of the testator; and if the beneficiary be living at the death of the testator then the devise takes effect, although the time for its enjoyment is postponed to,some future period or date of distribution.</p> <p>2 Same: devise of realty: when treated as personalty. Where land is devised with directions to sell the same and distribute the proceeds at some future time, it is to be treated as a devise of personalty.</p> <p>3 Same: descent and distribution: interest of surviving spouse. Under a will directing the sale of realty and a division of the proceeds equally among testator’s children, and in case any child shall die leaving no issue his share shall be divided among the survivors, the interest of a daughter vested upon the death of the testator, and was not lost by reason of her death thereafter, and prior to distribution, without issue: So that her surviving husband took an interest under the statutes of descent in the share which would have gone to her had she survived the period of distribution.</p> <p>Í Jurisdiction: how acquired. Where a defendant does not appear to an action or proceeding, either in person or by counsel, jurisdiction must be made to appear by the service of notice upon him, which is sufficient to satisfy the statutory and constitutional requirements.</p> <p>5 Same: judgments: equitable relief. Jurisdiction, either by notice or appearance, will be presumed in support of a judgment of a court of record which is in due form; but this presumption is not conclusive, and where it is sufficiently negatived by competent evidence a court of equity will interfere to avoid the apparent adjudication.</p> <p>6 Same: notice of action: sufficiency. The office of a notice of an action or proceeding is to inform the defendant of the cause or causes upon which the plaintiff expects to ask the judgment of the court; and the court acquires no jurisdiction, in the absence of an appearance, to try and determine matters of which the defendant has not thus been given notice. Thus where notice was given simply of a petition for an order to sell the real property, of an estate, the court acquired no jurisdiction thereby to adjudicate- the interest of the party thus served in the estate.</p> <p>7 Judgments: default: action to set aside. A party can only be in default for non-appearance when he has had notice of the claim asserted against him; the mere entry of default without notice constitutes no adjudication, and the statutory proceeding for vacating judgments and for new trial is not an exclusive remedy in such eases, but the aggrieved party may attack the validity of such an adjudication in any form of proceeding in which it is pleaded against him.</p> <p>8 Same: equitable relief: distribution of estates. In an equitable action for relief against a decree authorizing an executor, who had power under the will to sell real estate and distribute the proceeds, to convey the real estate to the distributees in satisfaction of their claims, the deeree being void in so far as it cut off the rights of the husband of a deceased distributee, the proper order was, not to direct a sale of the land for partition, but to ascertain the reasonable value of the husband’s share in the land and to enter judgment therefore as a lien against the property; and the judgment in such case should not require defendants to account for the rents and profits of the land.</p>

— C. E. Bansieb, Judge. Action at law to recover damages for injuries sustained by plaintiff in a collision of street ears upon defendant’s line of road. Trial to a jury, verdict for plaintiff in the sum of $10,000, which the court reduced to $7,500, and for that amount, with interest, rendered judgment. Defendant appeals.

— Hon. Robert Bonson, Judge. Action to recover damages for libels published of and concerning the plaintiff. Defendants pleaded justification; that the publications were privileged; that they were published in good faith and for justifiable ends. On the issues joined the ease was tried to a jury, resulting in a verdict and judgment for - plaintiff, and defendants appeal.

— Hon. F. C. Platt, Judge. Action in equity to enforce performance of contract for conveyance of real estate. Petition dismissed, and plaintiff appeals.