Volume 166 — Iowa Reports

<p>Master and servant: negligence: proximate cause: evidence. The 1 proximate cause of an injury for which an employer is liable is one which directly produces, or directly occurs in producing the injury; and in the event of an unbroken connection between the negligent act and the injury, the act is the proximate cause of the injury. Under the evidence in this ease the question of whether defects in an emery wheel which burst, causing plaintiff’s injury, was the proximate cause thereof was for the jury.</p> <p>Trial: admissions op counsel in argument: conclusiveness. While 2 formal admissions made by counsel during the progress of a trial are binding, when so intended, the concessions of counsel made in the heat of argument are not conclusive, but are the proper subject of comment by counsel for the adverse party.</p> <p>Master and servant: negligence: assumption op risk: evidence. 3 Under the evidence in this' case the question of whether the plaintiff assumed the risk of injury from the breaking of an emery wheel, while operating the same, was for the jury.</p> <p>Same: contributory negligence. Under the evidence it was also a 4 question for the jury to determine whether plaintiff was guilty of sueh negligence as to preclude recovery for his injury, caused by the bursting of the emery wheel which he was operating.</p> <p>Same: negligence of vice-principal. An employee, whose duty it was 5 to employ men, provide the necessary appliances and direct them in their work, and who was not at the time of plaintiff's injury actively engaged in the operation of the machine with which he was at work, was a vice-principal; and upon notice his failure to remedy a defective appliance was that of the master for which he was liable.</p>

<p>Dower: limitation of actions: antenuptial contracts: fraud. The 1 statute of limitations will not begin to run against a wife’s right of dower until the death of the husband; and where her rights depend upon an antenuptial contract prohibiting participation by each in the property of the other, which the wife contended she was fraudulently induced to sign, it is not necessary to protect her rights that she bring action to set the contract aside during her husband’s life time, as such contract has a vital bearing only on her right of dower. This .rule does not apply as between the widow and third parties, who acted in good faith on the strength of such contract.</p> <p>Husband and wife: antenuptial contracts: burden op proof. An 2 antenuptial contract fixing the property rights of the parties is valid and binding when honestly made, but is void if procured by fraud or duress, the same as other contracts. In the making of such contracts the law requires the utmost good faith on the part of both, and where such a contract is apparently unreasonable the burden of showing that it was fairly entered into is upon the party seeking to establish it.</p> <p>Equitable actions: admission op evidence. In equitable actions ineom-3 petent evidence cannot be excluded by the trial court, though exceptions to the same must be noted; and on appeal the incompetent testimony will be rejected.</p> <p>Fraud: antenuptial contract: evidence. In an action to set aside 4 an antenuptial contract fixing the rights of each spouse in the property of the other, the evidence is reviewed and held insufficient to show that the contract was unfair, secretive, overreaching or unjust in any .respect.</p> <p>Same: burden of proof. Where both parties to the marriage were of 5 advanced age, had families of their own and the wife sought the marriage desiring a home, and the husband’s children were opposed to the marriage on the ground that it would affect their inheritance, an antenuptial contract by which the wife waived her dower right in the property of the husband cannot be said to be so unreasonable as to cast the burden of proving that it was fairly entered into upon those claiming its validity.</p>

— Hon. LoRin N. Hays, Judge. Action to recover damages for injuries sustained by plaintiff, and for loss and destruction of his property in a collision with a motor car, on defendant’s line of road, at a highway crossing in or near the city of Perry. From a verdict and judgment for plaintiff, defendant appeals.

— Hon. M. E. Hutchi-son, Judge. Action for balance due on a contract to furnish butter to be sold in the market, and for damages for loss sustained in being compelled to sell below the contract price. Prom a verdict and judgment for plaintiff, the defendant appeals.—

<p>Wills: construction: general and SPECIFIC legacies. A legacy payable 1 out of no particular fund or article belonging to the estate is called a general legacy, and when it can be thus satisfied it is called a specific legacy.</p> <p>Same: pecuniary legacies: payment. Pecuniary legacies are payable 2 from the personal estate after the payment of debts, if no other fund is provided for the payment of debts; and if the remaining personalty is not sufficient to pay the same general legacies of that character abate, in the absence of any other provision for their payment.</p> <p>Same. The devise of a specific sum of money to the children of testatrix, 3 further described as the amount given testatrix by them out of their share of their father’s estate and by her invested in her homestead, which was to be sold by the executors, is a specific legacy and should be paid in full from the proceeds of the homestead, regardless of the sufficiency of the estate to pay other general bequests.</p> <p>Same: codicil: construction: intent. A will and codicil must be eon-4 strued together and, in the absence of a conflict therein which cannot be reconciled, the codicil will not be held to express the testator’s final intent any more than if it was a part of the original will. Thus where the testatrix' merely gave a daughter a specific sum of money, which was a general legacy, a codicil giving her an additional sum for life, which standing alone could not be considered as either specific or substitutional, does not change the character of the bequest. It is the testator’s intent which must govern in all cases.</p> <p>Same: substituted bequests: chakactek oe same. Where a specific 5 legacy was revolted by a codicil and the same sum given to another, payable from the same source and as a mere substitution, the latter bequest was also specific and subject to the same incidents and conditions as the original bequest.</p>

<p>Conversion: judgment: conclusiveness. Where plaintiff brought suit for the purchase price of a quantity of cigars, and defendant claimed that he was to have credit for unsalable cigars returned and was to hold the same as bailee, but that plaintiff refused to accept those tendered by defendant, a judgment upon a verdict sustaining defendant’s contention and allowing him eredit for unsalable cigars was conclusive on that subject, in the absence of an appeal, and obligated defendant to return the same when demanded, a failure to do which rendered him liable in conversion.</p>

<p>A divorce will not be granted on a charge of cruel and inhuman treatment, upon a showing merely of facts amounting to incompatibility of temperament. The treatment complained of must be such as to endanger the life of plaintiff. Evidence held insufficient to authorize a divorce.</p>

— Hon. Milo P. Smith, Judge. Action by a foreign receiver to recover damages based upon an alleged conspiracy. Plea by demurrer, of the statute of limitations, and want of right to sue. From a ruling sustaining the demurrer, the plaintiff appeals.

<p>Appeal from Webster District Court. — Hon. C. E. Albrook, Judge.</p> <p>Action at law for recovery of damages for personal injury, resulting in the death of the intestate. Prom judgment entered on a directed verdict for defendant, the plaintiff appeals.</p>

<p>Wills: vested remainder: dower. Where a will devised all of testator’s estate to his widow for life, with the remainder upon her death to his children, the children were vested with the title and ownership of the real property immediately upon the death of the testator, subject only to the life estate of the widow; and were possessed of the same within the meaning of Code section 3366, relating to dower; and upon the death of one of the children prior to the death of the widow, and while she was still in the possession and enjoyment of the life interest, the surviving spouse of such deceased child was entitled to dower therein.</p>

— HON. J. F. Clyde, Judge. ACTION to compel executor to discharge mortgages on property specifically devised, from personal property shown to be in the hands of the executor. Decree in favor of the executor. Applicants appeal.

<p>Appeal from Dubuque District Court. — Hon. J. W. Kint-zinger, Judge.</p> <p>Appeal by defendant from a ruling granting a new trial.</p>

— C. H. Kelley, Judge. IndictmeNT for larceny from a building. From a verdict and judgment convicting the defendant of larceny, he appeals.

— Hon. John F. Tal-bott, Judge. Action to partition certain real estate, and for the sale thereof because it could not be partitioned in kind. The trial court established the interests of the various parties, and some of the defendants undertook an appeal. Appeal

— Hon. K. E. Wilcox-son, Judge. Action at law to recover damages for injuries received by plaintiff, an employee of defendant, due to a fall of slate in defendant’s mine. The defendant denied the negligence charged, and pleaded contributory negligence and assumption of risk. At the close of plaintiff’s testimony, defendant filed a motion for a directed verdict, and this motion was sustained. Plaintiff appeals.

— Hon. F. 0. Ellison, Judge. Action to recover possession of real property, and for damages. From a verdict and judgment for plaintiff, the defendant appeals.

— HoN. Chas. A. Dudley, Judge. ActioN to recover damages for an injury occasioned by tbe negligent operation of an automobile upon tbe public streets of Des Moines. Verdict and judgment for the plaintiff. Defendants appeal.

<p>Foreign statutes: enforcement in this state. A foreign statute, penal 1 in character and therefore contrary to the public policy of this state, will not be enforced by the courts of this state; but where the statutes of a foreign state give a right of action for the wrongful death of a person, and have been construed by the courts of that state as providing only compensatory damages, they will be so construed when sought to be enforced in this state.</p> <p>Actions: accrual in foreign state: jurisdiction. An action may be 2 maintained in any state on a cause of action accruing in another state, if not contrary to the law or public policy of the state in which it is brought.</p> <p>Wrongful death: recoverable damages : law op porum. Only eompen-3 satory damages are recoverable in this state for a wrongful death; and in bringing an action here for a death occurring in a foreign state all claim for punitive damages which might be recovered in the foreign state is waived, as the amount of recoverable damages pertains to the remedy and is governed by the law of the forum.</p> <p>Same: jurisdiction. The mere fact that recoverable damages for a 4 wrongful death occurring in a foreign state are not as great under the law of this state as in the foreign state, will not affect the jurisdiction of the courts of this state.</p> <p>Same: right op action:' conflict of laws. The fact .that an action 5 for a wrongful death may be maintained in this state by the personal representative of deceased, while in the state of Missouri, where the cause of action accrued, the right of action survives first to the surviving spouse and then to the minor children of deceased, presents no such conflict in the policy of the statutes as will defeat the action brought in this state.</p> <p>Same: death op railway employee: interstate commerce: what law 6 governs. Where decedent was employed in coaling a' railway engine, which was being made ready for hauling freight from the state of Missouri and other states into the state of Kansas, he was engaged in interstate commerce; and the action for his injury and death while thus employed should have been brought and determined under the act of congress governing the liability of common carriers for injuries to employees, rather than under the state statutes.</p> <p>Federal statutes: CONSTRUCTION. The liberal construction given the Fed-7 eral Employers’ Liability Act by the federal courts will be followed by the state courts in an action under that statute.</p> <p>Interstate commerce: evidence. The identification of the tender of the 8 engine, which decedent was loading when killed, by an employee whose duty it was to keep a record of each engine and tender supplied with coal, as the one attached to the train hauled into another state, was sufficient to support a finding that it was being used in interstate commerce.</p>

— Hon. C. H. Keleey, Judge. Dependant was indicted and convicted of cheating by false pretense. It was alleged that he obtained certain money, from one Dickinson, upon a check drawn upon a bank in which he had no funds, and no ground for believing that the check would be paid when presented.

— Hon. P. M. Powehs, Judge. Action by a minor to set aside a decree on the ground that no proper service was made upon him of the proceeding in which the decree was entered. Decree for the defendant. Plaintiff appeals.

<p>Appeal from Limn District Court. — Hon. Milo P. Smith, Judge.</p> <p>Appeal from the action of the court in granting a new trial. Defendant appeals.</p>

— Hon. M. E. Hutchinson, Judge. PROCEEDING to enjoin the defendant from interfering with the erection of telephone poles and wires in the town of Vail. From a ruling on a motion to strike certain paragraphs from 'the amended and substituted petition, the plaintiff appeals —

— Hon. O. D. WheeleR, Judge. Will contest on the grounds of unsoundness of mind and undue influence. Issue of undue influence withdrawn from the jury. Question of unsoundness of mind submitted. Yer-diet for proponents. From an order admitting will to probate, contestants appeal.

<p>Appeal from Carroll District Court. — Hon. F. M. PoweRS, Judge.</p> <p>Action at law. The opinion states the material facts.' — ■</p>

— Hon. R. P. Howell, Judge. Action to recover for a car of apples alleged to have been damaged by freezing while in defendant’s care, and because of its negligence. Trial to a jury. Verdict and judgment for plaintiff for $297.48. Defendant appeals.

— Hon. Clarence Nichols, Judge. On complaint duly filed by order of his honor, C. G. Lee, presiding over the district court in and for Webster county, D. M. Kelleher, Esq., filed a complaint against W. F. Condon, accusing him of conduct unbecoming an attorney and counselor at law, and upon hearing, the Hon. Clarence Nichols presiding, the license of said Condon as attorney and counselor at law was suspended until further order of the court in the premises. He appeals.

— L. N. Hayes, Judge. Action lor damages because of the alleged seduction of plaintiff by defendant. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.

<p>Judgments upon several causes of action: reversal: effect. Ordi-1 narily a law action embracing several issues which have been tried together and disposed of by one judgment when reversed on appeal as to some of the issues will be remanded for a retrial of the whole ease; but where the action embraced several distinct causes stated in separate counts, a reversal of the judgment in favor of one of the parties upon one count will not operate as a reversal of the judgment in favor of the other party upon the other separate and distinct counts, from whieh no appeal was taken. Upon reversal the causes of action thus disposed of should be treated as eliminated from the case, and a motion to strike them from the petition was unnecessary and could properly be denied, but no prejudice resulted from sustaining the motion, and therefore an assignment of error based upon the ruling will not be sustained on appeal.</p> <p>Same. The reversal of a judgment on appeal renders it of no further 2 force or effect; and a motion to expunge it from the record is not necessary for the purpose of designating the issues for retrial, although the granting of such motion may not be prejudicial to the party who obtained the judgment.</p> <p>Same. Upon the reversal of a judgment for plaintiff in a law action, 3 based upon an indivisible claim, which is met by one or more defenses, with or without a counterclaim, and an ordinary money judgment is entered for part or all of plaintiff's claim, a reversal of the judgment with a general order for a new trial re-instates the case for trial upon the issues joined the same as if no trial had taken place; and if the judgment appealed from was a general one in favor of plaintiff for the difference between his claim and defendant’s counterclaim, the defendant, upon reversal, is not entitled to judgment' upon its counterclaim before retrial of the case, but the same remains as a triable issue, even though the amount due on the counterclaim -was determined by a special finding.</p>

<p>Municipal corporations: power to require license and bond op 1 workmen. A municipality has only such powers as are conferred upon it by the statutes, or arise by necessary implication from those expressly granted, or are indispensable to the purpose of its creation. The statutes authorizing municipalities to malee regulations providing against danger from fires, electrical apparatus, etc., do not authorize a town owning an electric light plant to require workmen to procure a license, and to give a bond indemnifying the town and its superintendent of public works against liability for injury resulting from negligence in doing the work.</p> <p>Same: lighting system : regulations. A town owning an electric light 2 plant has power to regulate the method of wiring, to provide for inspection of plans prior to making connections, and to require conformity to standards reasonably necessary for safety and efficiency.</p>

— Hon. John F. Oliver, Judge. Action t.o recover a balance due on the purchase price of corn sold and delivered by the plaintiff to the defendant. The answer admitted that the amount claimed by plaintiff would have been due under the contract if the com delivered had been of the quality contracted for. An affirmative defense setting up breach of contract was pleaded, and will be set forth in the opinion herein.

— Hon. B. W. PRESton, Judge. The defendant was indicted for murder in the first degree and convicted of murder in the second degree. He appeals.

— Hon. W. S. Withrow, Judge. Action to set aside the probate of a will. At the close of plaintiff’s evidence the trial court directed a verdict for the defendants and dismissed the petition. The plaintiff appeals.

— Hon. William Hutchinson, Judge. Action in equity to set aside certain deeds and for other relief. Petition dismissed, and plaintiff appeals. The nature of the issues joined and the material facts are stated in the opinion.

— Hon. C. G-. Lee, Judge. Action at law upon an account for merchandise sold and delivered. The defendant pleaded a general denial, and by amendment pleaded that some of the goods were worthless, and were returned to the plaintiff on that account. There was a verdict for the plaintiff. Thereupon the defendant filed a motion for a new trial, which was sustained. From the order granting a new trial, the plaintiff has appealed.-

— Hon. C. G. Lee, Judge. Appeal from an assessment of benefits in a drainage proceeding. From the assessment ordered against it by the board of supervisors, the plaintiff appealed to the district court of Story county. Upon trial had, the assessment was affirmed by the district court. From such order, the plaintiff has again appealed. —

This is an 'original action by certiorari to have determined the validity of an order removing petitioner as administrator. The proceedings are dismissed, and the judgment

— HoN. ARTHUR P. Barker, Judge. AotioN for damages for wrongful conversion of merchandise shipped by the plaintiff over the defendant’s railway. The answer admitted the shipment and denied the conversion; the real question in the case being whether the defendant made an unauthorized delivery of the shipment at its destination to a third person. At the close of the evidence, there was a directed verdict for the defendant, and the plaintiff appeals—

— Hon. R. M. Weight, Judge. Suit for separate maintenance. The trial court, without making any finding of facts or stating his conclusions of law, found for the defendant generally, and dismissed the petition. Plaintiff appeals.

— Hon. Henry Bank, JR., Judge. • Action to quiet title to certain real estate. Defendant T. N. Murray claimed to be the owner, under a certain deed and by adverse possession and acquiescence. There was a decree for the defendant T. N. Murray that he was the owner, and the plaintiff’s petition was dismissed. Plaintiff appeals.

<p>Death: suicide: accident: peesumption: evidence. Love of life 1 is so strong that where there was no witnesses to a death, the result of a revolver shot, the presumption obtains that it was accidental rather than suicidal; and this presumption has the force of affirmative evidence and will prevail unless so negatived by the surrounding facts and circumstances as to leave no other reasonable hypothesis than that of suicide. In the instant case the evidence is held to justify submission of the question of whether deceased took his own life or was accidentally shot.</p> <p>Same: insurance: suicide: bueden op peoop. Where the certificate 2 of a fraternal insurance association exempts the association from liability for a death resulting from suicide it has the burden of showing that death resulted in that manner.</p> <p>Insurance: suicide: instkuction. The certificate of insurance involved 3 provided that the association should not be liable if the insured committed suicide, whether sane or insane. The association contended that death resulted from suicide, but there was no question raised as to the sanity of deceased. Held, the instruction that deceased intentionally took his own life must appear to defeat liability was not erroneous, because ignoring the provision that suicide while insane would avoid the certificate.</p> <p>Same: suicide: accidental death: construction op policy. The 4 provision exempting an insurance association from liability in case the insured should die from his own hand or act has reference only to suicidal death, and not to an involuntary or accidental death.</p> <p>Same: instruction. Where the court instructed that plaintiff, the 5 beneficiary, was bound by all the terms and conditions of the contract between deceased and the defendant association, it was a sufficient charge that plaintiff was bound by the provision of the certificate exempting the association from liability in case of suicide.</p>

— Hon. C. W. Vermillion, Judge. Action by the plaintiff against the administratrix of the estate of Oliver A. Parks, to recover an amount equal to the full net value of the estate over and above the claims of creditors and the costs of administration. The claim is based upon an alleged verbal contract, whereby the decedent, for a consideration, agreed to devise and bequeath to plaintiff all of his property.

— Hon. W. H. McHenry, Judge. Action by an administratrix for damages for the death of the decedent, caused as alleged by the negligent conduct, of defendant’s employee, whereby he drove defendant’s automobile into collision with the decedent. At the close of the plaintiff’s evidence the trial court directed a verdict for the defendant. From such order, the plaintiff has appealed.—

<p>Acknowledgments: when defective: constructive notice. A notary’s certificate of acknowledgment which fails to recite that he is a notary in and for the county where the acknowledgment purports to have been taken, independently of the caption to the certificate, is fatally'defective; and the' recording of an instrument thus defectively acknowledged does not impart constructive notice.</p>

— Hon. W. S. Withrow, Judge. THERE are two appeals, the first from an interlocutory decree, and the second from a final decree which ordered the sheriff to reduce the height of a dam and abate the nuisance caused by its construction and maintenance above the height authorized. The cause was tried as in equity, and there was a decree for defendants upon their equitable answers. The facts will more fully appear in the opinion.

— Hon. Chas. E. Ransier, Judge. PROSECUTION for larceny by embezzlement. Tbe defendant was indicted under Code § 4842. The specific charge was that he fraudulently embezzled and converted to his own use the sum of $350 collected by Mm as agent of, and for the use of, the Farmers’ Savings Bank of Morrison, Iowa. There was a verdict and judgment of guilty, and the defendant appeals.

— Hon. W. H. McHeney, Judge. , . Defendant was indicted and convicted of murder in the second degree, and appeals, alleging as the only ground for reversal that the verdict is not supported by the evidence.—

— Hon. J. H. Applegate, Judge. Action at law to recover upon defendant’s subscription to the capital stock of the plaintiff company. Verdict and judgment for the plaintiff, and defendant appeals.

— Hons. J. F. Clyde and C. H. Kelley, Judges. Aotion by abutting property owner to recover damages from an interurban railway company occasioned to his property by the use of the street by said company for purposes other than that of a street railway. Plaintiff appeals.—

— Hon. A. N. Hobson, Judge. Indictment for maintaining stockyards in such manner as to canse a public nuisance. From a judgment on verdict of guilty, tbe defendant appeals.

— Hon. M. E. Hutchi-son, Judge. Action in equity to have a certain cbattel mortgage declared to be fraudulent and void because made to binder and delay the creditors of the mortgagor, Brown, and to recover the. value of the mortgaged property from the defendant mortgagee for the reason that he sold and converted the same to his own use and now holds the same under a pretended foreclosure of his mortgage.

<p>Railroads: personal injury: speed op train: evidence. The evi-1 dence in this action is held to require submission oí the question of the speed at which defendant’s engine was being operated at the time plaintiff was struck and injured, and to support a finding that it was operated at a speed exceeding that fixed by an ordinance of the city.</p> <p>Same: negligent operation op train: excessive speed: contribu-2 TORY negligence. It is the duty of a railway company to operate its trains within the limits of the city at a rate of speed as fixed by an ordinance of the city; and one rightfully crossing the depot grounds and tracks with knowledge that the speed of trains therein was limited by ordinance, may regulate his own conduct with respect thereto, and may rely on the assumption that the company will not willfully disregard the ordinance.</p> <p>Same: contributory negligence. While one upon the terminal tracks 3 of a railway must anticipate that trains are liable to pass over the tracks at any time, he may also expect that they will be operated at a lawful speed; and when plaintiff, having looked in the direction from which the engine came that struek him, saw no approaching engine within several hundred feet, he cannot be said as a matter of law to have been guilty of contributory negligence in continuing his course along the tracks for a distance of less than one hundred feet without again looking, where he knew that trains in that locality were limited to a speed of six' miles per hour by a city ordinance.</p> <p>Same: reliance upon engine signals. The law requires that the bell 4 shall be rung when an engine is passing through a terminal station; and one rightfully upon the terminal tracks inay rely upon a discharge of that duty and govern himself accordingly.</p> <p>Same: negligence: last clear chance: submission op issue. The 5 doctrine of last clear chance presupposes negligence on the part of plaintiff, discovery of which requires defendant to exercise reasonable care to avoid injuring him; but where plaintiff was walking between the tracks at a terminal station and in no danger at that point, but was immediately struek when he stepped upon the track, defendant’s duty to stop the engine only arose when it became apparent that plaintiff was about to step upon the track, and as no time elapsed between his doing so and the accident, submission of that issue as a ground of recovery without qualification or informing the jury of the defendant’s duty in respect to the matter was prejudicial error.</p>

<p>Bankruptcy: recovery op preferences. In the action by a trustee 1 in bankruptcy to recover preferential payments made in an attempt to compromise and settle with creditors, the evidence is held to show that the guardian of an incompetent surety on the insolvent’s notes did not consent to the attempted settlement prior to bankruptcy proceedings, by which a class of creditors received the proceeds of certain insurance policies pro rata, and the holders of the notes were to receive the proceeds of the other assets of the bankrupt.</p> <p>Same: insolvency: evidence. The evidence is also held to show 2 that the bankrupt was insolvent at the time of the pretended settlement.</p> <p>Same: voidable preferences : evidence. Where certain creditors 3 of a bankrupt had notice that it was proposed to distribute a certain fund among them, ignoring othei creditors, and that the proceeds from another source which it was proposed to distribute among another class of creditors'would not give such creditors the same pro rata share of the bankrupt's estate, they had reasonable cause to believe that a preference was intended to be given within the bankruptcy law.</p> <p>Same: recovery of preferences by trustee. Where the attorney 4 for an insolvent collected and had in his hands funds belonging to his client, and in arranging a settlement with creditors acted for the insolvent and not as trustee for the creditors, preferential payments made from the funds were recoverable by the trustee for the insolvent in bankruptcy proceedings, although the funds were collected by the attorney more than four months prior to the petition in bankruptcy.</p>

— Hon. Thomas L. Maxwell, Judge. Action at law upon two policies of insurance issued by the defendant on the life of Sherman E. Hicks, now deceased. There was a verdict and judgment for plaintiff, and defendant appeals.-

— Hon. Clarence Nichols, Judge. Action for personal injuries to a passenger in alighting from a street ear, charged to have been caused by the negligence of the defendant.

<p>Criminal law: appeal. Affidavits and sworn statements made long 1 after the entry of a judgment of guilty in a criminal case cannot be made the basis of reversal on appeal.</p> <p>Same: term op imprisonment. A judgment of conviction limiting 2 the term of imprisonment is of no effeet to reduce the imprisonment below a life term as fixed by statute.</p> <p>Same: habeas corpus: scope op inquiry. In habeas corpus pro-3 ceedings after imprisonment under a judgment of a court having apparent jurisdiction, the only question which can be inquired into is the jurisdiction of the court pronouncing the judgment. The record of the proceedings leading up to the judgment cannot be impeached or denied in such a proceeding.</p> <p>Same.' Where a criminal defendant claims to have been deceived into 4 entering a plea of guilty, or did not understand that it was entered, it was open to him to raise the question when the judgment was entered, and if the record did not correctly state the facts to then apply for its correction; this cannot be done in habeas corpus proceedings after judgment and imprisonment.</p>

<p>New trial: meritorious defense. Judgment by default was entered 1 against plaintiff for the attachment and sale of property in a foreign state, alleged to have been assigned for the benefit of creditors. Plaintiff petitioned for a new trial after the term, and in its answer of merits submitted with the petition alleged that the assignment was invalid because not in conformity with the statute of that state, and because all of the property of the debtor was not included in the assignment. Seld, that the answer presented a meritorious defense and was sufficient to sustain the application to set aside the judgment.</p> <p>Same: judgment on default: trial notice: waiver. Where a 2 cause has once been continued and an answer is on file the filing of a trial notice is necessary to bring the case on for trial, except the parties consent thereto. An assignment of the cause upon call of the calender in the absence of the defendant or his counsel will not obviate the necessity of a trial notice, and a judgment on default thus entered may be set aside.</p> <p>New trial: discretion. The court has a large discretion in the matter 3 of granting new trials, and this discretion applies to a petition to set aside a judgment filed after the term as well as to a motion during the term.</p> <p>Same: unavoidable casualty. The fact that the attorney in the case 4 upon whom his client alone relied removed from the state and gave the case no further attention, without the knowledge of the client until after a default was entered against him, was such unavoidable casualty as would authorize a new trial after the term; and even though the evidence was conflicting on the subject of the client’s knowledge there was no abuse of discretion in granting a new trial.</p>

— Hon. W. N. TREichleR, Judge. Action at law to recover damages for injuries received by plaintiff, an employee of the Chicago, Milwaukee & St. Paul Railroad Company, due to a collision between a train on its road, with one operated by defendant on its line, at a crossing of the two within the city of Cedar Rapids.

— Hon. James P. Hewitt, Judge. PROCEEDINGS for the condemnation of certain real estato belonging to the plaintiffs, in Des Moines, Iowa, for city purposes. Plaintiffs appealed from an award made by a sheriff's jury, to the district court, and upon a trial of that appeal to a jury they were awarded the sum of $31,000.00, which was $1,500.00 less than the award by the sheriff’s jury. They appeal.

— Hon. F. M. Powees, Judge. Aotion by trustee in bankruptcy to recover of the defendant certain money claimed to have been received and held by defendant for tbe purpose of aiding the bankrupt in defrauding his creditors. Judgment and decree for the plaintiff. Defendant appeals.

<p>Appeal from Polh District Court. — HoN. W. H. McHenry, Judge.</p> <p>Appeal from a conviction of an assault with intent to commit rape.</p>

— IÍON. O. D. Wheeler, Judge. This is an action of mandamus to compel the defendants, the board of supervisors of Harrison county, to construct a bridge over a drainage ditch in their county. Defendants answered that in their opinion the bridge should not be built, because there was no necessity therefor, and^ because the expense was such that it should not be built, inasmuch as there was already another bridge near at hand which would answer all purposes.

— Hon. J. F. Clyde, Judge. Anna Margrethe Anderson died testate September 16, 1909. Her will was probated, and H. S. IToug appointed executor. The latter dying, C. L. Hanson was appointed administrator with the will annexed.

<p>Marriage and divorce: appeal: death op appellant. Where the 1 defendant in an action for divorce died pending an appeal from judgment granting to plaintiff a divorce and alimony, and denying defendant’s cross petition for divorce, the husband’s executors cannot prosecute the appeal from the judgment on the cross-petition. •</p> <p>Same: divokoe: inhuman treatment: adultery: evidence. In 2 this action for divorce brought by the wife on the ground of cruel and inhuman treatment, to which defendant pleaded in a cross-petition adultery of the wife and asked divorce, the evidence is held sufficient to sustain plaintiff’s charge of inhuman treatment, and insufficient to show adultery on the part of plaintiff.</p> <p>Same: alimony. Where a husband was worth approximately $50,000 3 an award as alimony of practically one-third of that sum, the wife being given the care of the three minor children for whose support she was liable, is upheld.</p> <p>Same: divorce: conditional decree. In equitable actions the de-4 crees in many cases must be conditional to work out the equities of the parties. Thus the provision in a decree of divorce awarding the wife alimony, that in case she was compelled to pay any part of a judgment that might be obtained in an action then pending against both parties for conspiracy, she might recover such sum from -the husband, that his property should be liable therefore as between them, was proper. The trial court, however, had no power to order that in case of the husband’s appeal, and only then, he should pay a certain sum each month to the support of the wife during the pendency of the appeal; as jurisdiction after appeal is vested solely in the appellate court.</p> <p>Same: allowance of attorney fees. An allowance of $350 by the 5 trial court and $150 in the appellate court as plaintiff’s attorneys’ fees in an action for divorce, which involved only fact questions, was adequate compensation.</p>

— Hon. W. N. Treich-ler, Judge. Action to recover damages for injuries received-by plaintiff in an automobile accident.' Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— Hon. F. R. Gaynor, judge. Action for rent. By way of counterclaim, defendant prayed for damages in removing water and débris from the basement of the leased building, and a diminution of rent because of its partial destruction thereby. These were allowed, and plaintiff appeals.

— Hon. O. D. Wheeler, Judge. Action to remove the foreclosure of a chattel mortgage by notice and sale to the district court of Pottawattamie county. The foreclosure was commenced by Geo. B. Lane, and he caused notice to be served upon plaintiffs Geo. W. Little et al. Little et al. then brought action to enjoin the foreclosure and to remove the same to the district court, making Lane and the defendant herein parties defendant.

— HoN. Henry T. Silwold, Judge. Action on contract for minimum royalty on coal not mined resulted in a verdict and judgment for the defendant. The plaintiff appeals.

<p>Wills: legacies: deferred payments: interest. Where a bequest is 1 made payable at a specified time after the testator’s death payment at that time without interest will satisfy the legacy; but where the will as a whole indicates an intention to make the legatee an unqualified beneficiary as of the date of the testator’s death, nothing being postponed except the right to demand and receive possession of the legacy, the beneficiary is entitled to the income or . the accumulations of the fund from the date of the death of the testator.</p> <p>Same: legacies: interest: accumulations. Interest upon a legacy 2 not paid when due is not considered a part of the gift, but is rather a penalty for non-payment of the bequest when due; but where a legacy vested on the death of the testator, with payment postponed until the majority of the beneficiary, the beneficiary was entitled to an accounting for tlie ineome during minority, not as interest, strictly speaking, but on the theory that it is a part of the gift to be paid with the original bequest.</p> <p>Same: specific legacies: deferred payments: right to accumula-3 tions. The will in question bequeathed a specific sum to a minor daughter for the purpose of equalizing advances made to an older daughter, to be paid her when she arrived at the full age, and provided for an equal division of the balance of the estate between two daughters. The will also requested the appointment of a guardian for the property of the minor, and authorized the executrix to pay the specific legacy either in cash or by the assignment of securities. Held, that it was the intention of the testator as indicated by the will as a whole that the specific bequest should vest upon his death, with the right of possession deferred until the beneficiary arrived at majority, and that the accumulations on the bequest prior to possession belonged to the beneficiary and were not a part of the residuary estate.</p> <p>Same: legacies: accumulation. The fact that a legacy is vested and 4 not contingent is not of itself sufficient reason in all cases to determine the right of the legatee to the accumulations accruing upon the fund, but it is a circumstance of weight and value to be considered on that question.</p> <p>Same: advancement: value: evidence. The statement of the testator 5 in his will that he had made advancements in a certain sum to one daughter, and to equalize the share of another daughter in the estate bequeathed to her an equal sum, is conclusive upon the party to whom the advancements were made; and evidence that property advanced was worth less than the valuation placed by the testator is not admissible.</p> <p>Same: bequest to widow: right to accumulations. Under a will giv-6 ing a widow the homestead and one-third of the estate in lieu of dower, her interest vested upon the death of the testator, and she was entitled to her proportionate share of the accumulations of the estate during the time of administration.</p>

— Hon. LAWRENCE De GRafe, Judge. This is an action in equity for partition of certain real estate, six hundred and forty acres in Monona county, Iowa, of the value of about $50,000. It is the claim of plaintiff: that she is an illegitimate child of Edwin R. McNeill, deceased, and that she was generally and notoriously recognized by him as such. Defendants are the widow and children of said deceased, who deny that plaintiff is entitled to an interest in the property.

— IloN. Lawrence De Gkapf, Judge. ActioN at law upon a contract for the exchange of a stock of merchandise for a tract of land. The material facts are sufficiently: stated in the opinion. At the close of the testimony the court directed a verdict for all of the defendants, and from such order and the judgment entered thereon the plaintiff appeals. —

— HoN. C. W. VerMILLION, Judge. This is an action brought originally in probate, being an application for the sale of real estate to pay indebtedness. It was transferred to the chancery docket and tried as an equitable action. All the defendants except Belle Workman were in default.

— HoN. F. M. Powers, Judge. ActioN in equity in the nature of a creditor’s bill to subject certain land to the payment of a judgment obtained by plaintiff against F. W. Daiker and Theresa Daiker. There was a decree for plaintiff, and defendants appeal.

— HoN. Milo P. Smith, Judge. This is a certiorari proceeding brought by the plaintiff in the district court against the school district and its board of directors to have the action of the school board, wherein they seek to condemn certain premises for schoolhouse grounds, reviewed and declared null and void because, as is alleged, the school board exceeded its jurisdiction, power, and authority, under the statute, and otherwise acted illegally.