Volume 167 — Iowa Reports

— Hon. Clarence W. Nichol, Judge. Action in equity in which plaintiff claims to be the owner in fee of an undivided two-thirds interest in a considerable amount of real estate described in the petition, and asking that his title be established and quieted. He bases his claim upon his right of succession as sole heir of his mother, Mary E. Sherlock, deceased. The trial court after a trial dismissed the petition. Plaintiff appeals.

— Hon. H. K. Evans, Judge. Action at law for damages because of tbe alleged vacation of a public highway. Trial to the court, without a jury. Judgment for plaintiff. Defendant appeals.

— Hon. F. C. Platt, Judge. The defendant, having been indicted and convicted upon a charge of murder in the second degree, has taken an appeal from the judgment against her. The material facts are stated in the opinion.

— Hon. D. F, Coyle, Judge. The fee title to the fractional quarter section of land is in the plaintiff, Kirby, a resident of Emmet county, and of him the other plaintiff, Taylor, purchased the same September 16, 1910, under written contract, by the terms of which, upon payment of the purchase price, Kirby was to convey the premises to Taylor and the latter entered into possession March 1, 1911.

— Hon. William Theo- . philus, Judge. Suit in equity for specific performance of a written contract for the exchange of appellant’s land in Canada for appellees’ house and lot in Davenport, Iowa, and asking that defendants be compelled to execute a deed to plaintiff for the Davenport property. Defendants asked affirmative equitable relief as to certain matters growing out of the transaction.

<p>Appeal from Woodbury District Court. — IIon. John F. Oliver, Judge.</p> <p>Action in equity to enjoin an alleged liquor nuisance. Petition dismissed, and plaintiff appeals.</p>

<p>Pleadings: amendment: discretion. The court in its discretion may 1 allow the plaintiff in an action for money advanced to reply to the answer after verdict, and thus for the first time allege that certain items were by mistake omitted from a receipt given the defendant for money advanced, and thus conform the pleadings to the evidence.</p> <p>Judgments: admission : effect. Where defendant in his answer ad-2 mitted that plaintiff was entitled to recover on his claim as made by the petition, a judgment for that amount was proper, regardless of an unpleaded written agreement between the parties which would defeat recovery.</p> <p>Direction of verdict: When justified. The uneontradieted testimony . 3 of plaintiff as to the amount due him, in response to whieh defendant offered simply a receipt or memorandum calling for a less amount, was sufficient to sustain a directed verdict for the amount of plaintiff’s claim, where plaintiff fully explained a mistake in the receipt, which explanation defendant in no manner contradicted.</p>

Certiorari from Webster District Court. An original proceeding initiated in this court to review an order or judgment of the district court of Webster county, Hon. R. M. Wright presiding, by which complainant was found guilty of contempt of court. The facts, so far as they are essential to a disposition of the case are stated in the opinion.

— Hon. C. W. Vermillion, Judge. Action at law to reeover double damages for a trespass upon plaintiff’s property in the mining and taking away of coal under lands claimed to be owned by them. The trial court dismissed the petition as to Maggie Mathias, but rendered judgment in favor of the other plaintiffs, arid defendant appeals.

<p>Trial: issues of law and fact : determination. Where the evidence 1 regarding a material fact is such that honest minds may fairly differ as to the existence or non-existence of the ultimate fact sought to be established, the issue is for the jury; but where there is no dispute in the evidence as to the existence or non-existence of the fact, or where it is such that reasonable minds cannot honestly differ then it becomes a question for the court.</p> <p>Contributory negligence: burden of proof: evidence. To recover 2 upon the ground of negligence the plaintiff must not only prove the negligence of the defendant, but he must also affirmatively show his own freedom from contributory negligence. In this action the evidence fails to show that plaintiff, a transfer man of mature years while at the station to meet the trains, was free from contributory negligence in crossing one of the tracks, in that it fails to show that he exercised reasonable care to discover an approaching train which struck him, and which he knew was momentarily expected to arrive.</p> <p>Same: instinct of self-preservation. Where there were no eyewit3 nesses to an accident resulting in death, and to the manner in which deceased was conducting himself at the time or immediately before, a presumption arises that he was exercising reasonable care for his own safety at the time; but this presumption is one of fact and whether it was overcome by other circumstances shown in evidence is a question for the jury to determine. This presumption, however, does not obtain where there was direct evidence of the circumstances offered by the party invoking it, or where it was within the power of the party whose duty it was to prove the circumstances to produce affirmative evidence of the facts.</p> <p>Same: diversion op attention. To excuse one of contributory negli4 gence on tbe ground that bis attention was diverted from himself' and his peril, there must be some showing of facts which, under usual and ordinary circumstances, would hav.e the effeet of diverting his mind from a vigilant care of his own personal safety.</p> <p>Same: burden of proof. In personal injury actions the burden is 5 always upon the plaintiff to negative contributory negligence; and while the absence of any eyewitness to the circumstances surrounding a tragedy may give rise to an inference that the party was in the exercise of care for his safety, such inference cannot be relied upon to excuse the plaintiff from producing such evidence as was at hand or within his reach, tending to show the conduct of deceased to the time of the tragedy, thus in effect shifting the burden to defendant to show that the injured party was in fact negligent.</p>

<p>Appeal from Wapello District Court. — Hon. F. M. Hunter, Judge.</p> <p>Proceeding to establish against the estate of Benjamin Harman a claim based upon a promissory note given by him to his wife. From an order establishing the claim this appeal is taken.</p>

— IIon. Robert Bonson, Judge. Dependant was indicted on the charge of rape, committed on a child under the age of fifteen years. Upon a conviction, defendant appeals.

— IIon. F. M. Hunter, Judge. Action at law to recover damages for injuries done to plaintiff’s team and harness, due to a defective approach to a county bridge in the defendant county. The case was tried to the court without a jury, resulting in a judgment dismissing plaintiff’s petition, and he appeals.

<p>Negligence in breeding animals: evidence. One negligently permit-1 ting a stallion to injure a mare while in the act of breeding her is liable therefor. The evidence is held to show that the groom was negligent in failing to assist the stallion, resulting in a wrong entry, from the effects of which the mare died.</p> <p>Same: negligence: unavoidable accident. Omission to do that 2 which a reasonably prudent and cautious person would do under like circumstances is negligence, and cannot be considered an accident. Thus where it was the duty of the groom to assist a stallion when bree'ding a mare, which he failed to do and injury thus resulted to the mare, it will not be considered an accident.</p> <p>Appeal: review of court findings in law actions. Where a law 3 action is tried to the court its finding has the force and effect of a jury verdict, and if there is evidence to support it the finding will not he disturbed on appeal, although the appellate court might have reached a different conclusion.</p>

— Hon. David Mould, Judge. Action for damages caused by a nuisance. From a verdict and judgment for plaintiff, the defendant appeals.

— Hon. O. D. “Wheeler, Judge. Proceeding to establish the lieu of a judgment against real estate. Defenses, that the judgment was void and the real estate exempt as a homestead. From a decree in favor of plaintiff, defendants appeal.

— Hon. John F. Oliver, Judge. Action at law upon five promissory notes, executed by the Glendell Dairy Company, by Henry 0. Harstad, president, and defendant J. E.' Schultz. Defendant pleaded a mutual mistake in the signing of the notes, in that his signature was appended thereto, not for the purpose of assuming a personal liability, but for and on behalf of the dairy company, and as its secretary; and he asked that the notes be reformed so as to express this intent.

<p>Appeal from Woodbury District Court. — Hon. John F. Oliver, Judge.</p> <p>Appeal from an order granting a rehearing or a new trial upon the report of an administratrix, who gave notice of the hearing of her final report by publication only.</p>

— Hon. Milo P. Smite, Judge. This is an action to recover the value of certain material used by the plaintiff in constructing a sidewalk in front of his premises which was ordered removed by the city council and a new walk placed in its stead.

— Hon.-F.' M. Hunter, Judge. Action on a contract for digging wells. From a verdict and judgment for plaintiff, the defendants appeal.

<p>Evidence: admission op additional evidence: discretion. It is within 1 the discretion of the trial court to permit a party to introduce additional evidence after the conclusion of the case, but before final submission to the jury.</p> <p>Municipal corporations: defective walks : contributory negligence: 2 evidence. To constitute contributory negligence on the part .of one using a defective sidewalk, from which an injury results, it must appear that the injured person knew that the.walk was in a dangerous condition and that he knew, or must have known by the exercise of reasonable care for his safety, that it was unsafe for him to attempt its use. The question of whether plaintiff appreciated the Manger and was imprudent in attempting to use the walk in the instanf case was f pr the jury. -</p> <p>Same: instructions. A pedestrian is not bound to take another and 3 better sidewalk to reach his destination if he believés, or has reason to believe, that he can safely use the walk over which he’is passing; and the use of a walk which an ordinarily prudent person believes, or has a right to believe, he can use in safety is not of itself contributory negligence. The instructions as given by the court on these questions were correct.</p> <p>Appeal: additional briers: motion to strike. The appellate court i will consider its own cases regardless of whether they are cited in the briefs of counsel; and for that reason a motion to strike an additional brief citing merely decisions of this state, but containing no additional argument, on the ground that it was filed too late will be overruled.</p>

— Hon. D. M. Anderson, Judge. Action to recover damages for a breach of the covenants of warranty in a deed executed by defendants to plaintiff William Horn, and one John Scott, now deceased, due to a shortage in the number of acres of land conveyed. Various issues were tendered by the pleadings which will be referred to in the body of the opinion, and upon these issues the case was tried to the court, resulting in a judgment for the plaintiffs, and defendants appeal.

— Hon. H. K. Evans, Judge. Suit for the partition of certain real estate. Sarah E. Hibbs, a defendant and appellant, claimed an one-fourteenth interest in the lands against some of the other, parties plaintiff and defendant. The trial court found that Sarah E. Hibbs had no interest or share in the lands, and she appeals,—

— Hon. F. 0. Ellison, Judge. Action to enjoin the defendant from maintaining tiling on his land, the effect of which was to gather surface water from defendant’s land into a swale or depression thereon, from which it passed onto plaintiff’s land to the plaintiff’s injury.

<p>Conspiracy: evidence. The defendant bank agreed with plaintiff to 1 act as her agent in the sale of property on which she held a. mortgage, and to turn over the proceeds to apply on her debt from the mortgagor. After the sale defendant assigned notes held by it to another bank that also held notes of the mortgagors, and it immediately began suit thereon and garnished the funds in defendant’s hands. Defendant did not disclose the contract with plaintiff in that proceeding. Held, that the evidence was not sufficient to require submission to the jury of a charge of conspiracy between the two banks to defraud plaintiff of the proceeds of the property.</p> <p>Estoppel: failure to plead. The fact that defendant made no claim 2 in the garnishment proceedings to a portion of the proceeds of the sale, which it was agreed should be applied on rent due the defendant, did not estop it from asserting its claim for the rent in this action by plaintiff for the proceeds of the sale; as defendant was not a party to the garnishment proceedings, and could not assert its claim therein.</p> <p>Damages: interest. In this action to recover the proceeds of the sale, 3 the plaintiff, after allowing defendant’s claim for rent, was entitled to interest on the balance from the time it was received by defendant from the sale in the absence of a tender by defendant of the balance due.</p>

— Hon. Wm. Hutchinson, Judge. Out of the establishment of what is known as drainage district No. 2, of Woodbury and Monona counties, two actions arose, which were consolidated and tried together in the district court. The first was a claim for damages filed by plaintiff with the county auditor of Monona county, in which he asked damages done his property by the establishment of the district. The board rejected plaintiff’s claim, and he appealed to the district court.

— Hon. David Mould, Judge. Lizzie Jacobs, an heir and devisee of Peter Cornils, deceased, filed a petition for the construction of the will of the deceased, and to this the trustees appointed by the will demurred. This demurrer was overruled, and they thereafter filed an answer.

— Hon. Clarence Nichols, Judge. Action to enjoin tbe defendant from manufacturing or selling a certain spark plug, claimed to be made in imitation of spark plugs manufactured by the plaintiffs, alleging that the same contain special features which distinguished plaintiff’s manufactured article from all others, and to enjoin the defendant from using its corporate name, claiming that the same resembled plaintiff’s to such an extent that it caused confusion to the publie mind,…

— Hon. Thomas L. Maxwell, Judge. Proceeding to subject eertaiu real estate to an execution. Claim of homestead and former adjudication. From a decree dismissing his application for a modification of a former decree, the defendant appeals.

— Hon. ~W'. D. Boies, Judge. Proceeding in probate for the construction of a will. The trial court ruled that the widow takes a life estate, and she appeals.

— Hon. Henry Silwold, Judge. This is au appeal from an order in probate, by which appellants were directed to stop payment of certain drafts, and that the defendant bank issue duplicates of said drafts to the administrator. The State Bank of Fremont and E. E. Austin, the cashier, appeal.

— 'Hon. Henry Silwold, Judge. This is a proceeding in probate. The issue between tbe parties arises upon objections to the final report of the executor., The objections were sustained, and he appeals'.

<p>Carriers: interstate commerce: pleadings. Where the defendant 1 express company, in an action against it to recover an alleged.overcharge for an interstate shipment, admitted that it was within the Interstate Commerce Act, the sufficiency of the petition with reference to such act was properly raised by demurrer, although there was no allegation referring to the terms of the act.</p> <p>Same: rates: presumption. Where plaintiff alleged that he paid a 2 certain transportation charge at the time of shipment, and was required to pay an additional sum at destination, but- failed to allege that the total payment was not the true and published rate, it will be presumed, in an action to recover the alleged- overcharge on the interstate shipment that the total amount paid was the legal rate.</p> <p>Same: rates: failure to post. Failure to keep express rates posted .3 at stations as required by tbe Interstate Commerce Act is not essential to make the rates legally operative.</p> <p>Same: rates: pleadings. In an action against a carrier to recover 4 an alleged overcharge, the allegation that if the rate charged was the true tariff, the defendant’s agent falsely and wrongfully stated to the plaintiff that the rate was a lesser sum, which he paid upon making shipment, was consistent with the fact that the agent made a mistake or that he favored plaintiff with a lower rate, and in either event would be false and wrongful.</p> <p>Same: rates: rebate: overcharge: recovery. Under the pro-5 visions of the Interstate Commerce Act any concession from the published rates is an unlawful rebate. So that where plaintiff paid a certain charge upon making an interstate shipment, and an additional sum at destination, which was the legal rate, he could not recover the latter sum either on the ground of fraud, deceit, or the authority of the carrier’s agent to bind it; as neither the carrier nor its agent could lawfully contract for shipment at less than the filed and published rate.</p>

<p>Assault and battery: evidence: submission of issues. In this action. 1 for assault and battery, the evidence is reviewed and held to require submission of the question of the character and nature of the assault.</p> <p>Same: excessive verdict: new trial. A verdict may be so excessive 2 as to indicate passion and prejudice, and to authorize a new trial for that reason; but it, does not necessarily follow that a new trial should be granted because the verdict is excessive. Thus where an excessive verdict for assault and battery was reduced by the trial court, the defendant was not entitled to a new trial.</p>

— Hon. A. J. House, Judge. Action on a benefit certificate issued to Nathan Keith and payable to Lizzie Keith, plaintiff, who was his wifi,. Judgment for plaintiff. Defendant appeals.

— Hon. Wm. Hutchinson, Judge. An action to foreclose a mechanic’s lien on an account for constructing a well upon the premises of the defendant. There was a decree for the plaintiff for the full amount claimed, and the defendant appeals.

<p>Appeal from Osceola District Court'. — Hon. Wm. Hutchinson, Judge.</p> <p>A suit in equity to set aside a purported contract of sale of land, and to remove the cloud thereof from the plaintiff’s title. There was a cross-bill by the defendant, asking the specific performance of such contract. Decree for plaintiff, and defendant appeals.</p>

<p>Contract for sale of land: agency: commission: evidence. In this 1 action to recover a commission for procuring a purchaser of land, which the owner conveyed to a purchaser procured by another agent, the evidence as to which agent first reported a sale that was ratified by the owner is held to authorize a verdiet for the plaintiff. Same: recovery oe additional commission. Where the owner of the 2 land and an agent agreed upon the commission in case of a sale, and further agreed that if the agent procured another to assist iii making the sale the owner should pay such other agent an additional commission, evidence merely that the original agent took a party with him when showing the land, who simply pointed out the location of the tile laid in the land, was not sufficient to authorize recovery of the additional commission by the original agent.</p>

— Hon. J. H. Applegate, Judge. Suit in equity for specific performance of a contract of exchange of properties. The trial court dismissed the petition, and the plaintiff appeals.

— Hon. K. E. Willcockson, Judge. Action to recover back money alleged to bave been obtained by defendant from the plaintiff through false and fraudulent representations. There was a general denial by the defendant. Verdict and judgment for the plaintiff, and the defendant appeals.

<p>Appeal from, Clinton District Court. — Hon. William Theophilus, Judge.</p> <p>Indictment for incest. Judgment for defendant. The State appeals.</p>

<p>Appeal from Grinnell Superior Court. — Hon. P. G. Norris, Judge.</p> <p>Appeal from an order denying a petition for a new trial. Plaintiff appeals.</p>

— Hon. W. H. Fahey, Judge. Action to recover an installment of rent, under a written lease and a rent note. The defendant admitted the execution of the writing. He pleaded an affirmative defense and several counts of a counterclaim. He was successful as to one count, and the plaintiff’s recovery was reduced accordingly by the verdict. From a judgment in his favor for the reduced amount, the plaintiff has appealed.

— Hon. William Theophilus, Judge. Proceeding in equity to restrain the closing of a public street, and interference with plaintiffs’ right of access and use. From a decree in favor of plaintiffs, defendants appeal —

<p>Certiorari: remedy by appeal. Certiorari will not lie to correct an 1 erroneous ruling, no matter how palpable the error, if there is a plain, speedy and adequate remedy by appeal.</p> <p>Change of venue: appeal. An appeal will not lie directly from a rul2 ing on a motion for change of venue; but on an appeal from the final judgment the ruling on the motion to change may be reviewed.</p> <p>Certiorari: nature of remedy. As a general rule certiorari is not 3 available to review a ruling upon a motion for change of venue, except where the court has imposed illegal conditions or otherwise acted illegally, or in excess of its jurisdiction.</p> <p>Same. The remedy in ease one seeks to restrain the action of eourt in 4 case it proposes to act in excess of its jurisdiction, or for entire want of jurisdiction, i* a writ of prohibition and not a writ of certiorari.</p>

<p>Carriers: interstate shipment: regulation. An interstate shipment 1 of property is governed by the regulations imposed by Congress; and the state statute providing that no contract, receipt or rule shall exempt the carrier from any liability which would exist in the absence of such agreement or rule has no application.</p> <p>Same: contracts of shipment: rates: value in case of loss. 2 Where an interstate carrier has regularly filed a tariff of rates, showing different rates upon the same commodity, based upon different valuations, the schedule of rates becomes a part of the contract of shipment, and automatically fixes the rate when the value is specified in the contract; and where a shipper agrees to a certain valuation for the purpose of securing the lower rate he is bound by the value so fixed in ease of loss.</p> <p>Same: contract of shipment: consideration: evidence. Where 3 both plaintiff and defendant pleaded the contract of interstate shipment, which fixed the value of the property for the purposes of shipment, and provided that the recovery in. ease of loss should not be greater than the stipulated value upon which the rate of shipment, was based, it was competent for the defendant to show the consideration for the contract, and for that purpose the tariff and schedule of rates was receivable in evidence.</p> <p>Same: shipment of live stock: negligence: evidence. Where a 4 contract for the interstate shipment of hogs provided that the shipper should prepare and bed the car, and there was an issue as to whether a number of the hogs died in transit because of plaintiff’s negligence in preparing the car, or because of ¿he negligence of defendant in failing to properly water them, evidence of the manner of preparation of the other cars in which hogs were shipped in the same train, and which received the same treatment, none of which died, was admissible.</p>

— Hon. Geo. W. Dun-ham, Judge. Garnishment proceedings against Roberts and the People’s National Bank of Independence, Iowa, garnishees, to satisfy a judgment held by. plaintiff against Will Clemans and Estella Clemans. A mortgagee of certain chattel property, and the landlord on whose land the property was kept, appeared and made claim to the property.

— Hon. H. K. Evans, Judge. Defendant was indicted, tried, and convicted of tbe crime of assault with intent to commit rape, and he appeals.—

<p>Appeal: argument: motion to strike. An argument on appeal will 1 not ordinarily be stricken because filed out of order, provided it is filed in time.</p> <p>Estates of decedents: claims: notice: delay: relief. Where 2 an administratrix having a claim against the estate employed counsel to look after it and he prepared the claim which was verified, but by-oversight neglected to file the same for nearly a year, when the same was filed but no notice served on the special administrator within the statutory time, and upon discovery of the oversight the administratrix employed other counsel and the heirs appeared and contested the claim, the equitable circumstances were sufficient to justify the delay in giving- the notice and to authorize a hearing upon the merits of the claim.</p> <p>Same: claims: notice: limitations. An objection to the allowance 3 of a claim against an estate, on the ground that it was barred and no statutory notice of the same was given, must be affirmatively shown by the party making the objection; and proof simply that notice of a claim was given by publication without showing an order for publication was not sufficient to set the statute of limitations in motion.</p> <p>Same: claims: pleading: proof: variance. The fact that one 4 having a claim against an estate was variously described as Lizzie, Elizabeth and Mrs. Craig, or that a middle name was sometimes used and sometimes omitted, did not create a variance between the pleadings and proof, especially where the witness used the names synonymously.</p> <p>Same. It is not necessary that a claim against an estate shall be stated 5 with the same fullness and particularity as a petition in an ordinary ease; nor is the same conformity of proof to the allegations of the claim required as in ordirfary actions.</p> <p>Same: claims: evidence: sufficiency of proof. Proof of money 6 had and received by decedent for the use and benefit of claimant will support a claim against the estate for money loaned; and when thus established it is not incumbent upon claimant- to prove nonpayment, and the burden of showing payment rests upon the parties resisting the claim. Evidence held sufficient to establish the claim of the wife against her husband’s estate for money belonging to her and collected by him.</p> <p>Same. One asserting a claim against an estate need not prove that the 7 indebtedness arose on the exact date alleged, but may rely on a different time.</p>

<p>Criminal law: murder: instructions: self-defense. On this prose-1 cutioh for murder the instructions upon the subject of self-defense, when construed together, are held not prejudicial; as shifting the burden of proof on that issue to the defendant.</p> <p>Same: murder: submission of issues. Where defendant on a prose-2 ention for murder in the first degree had time for reflection after a prior assault and a continuous altercation, and upon decedent’s return to the place where defendant was standing, threatening him with injury, defendant struck the fatal blow, and upon the trial pleaded self-defense, the court was justified in submitting the questions of murder in the first and second degrees.</p> <p>Same: flight: evidence. -The flight of a person is no more than a 3 confession of his guilt, and is not admissible as substantive evidence in favor of another charged with the same offense.</p> <p>Same: appeal: objections not urged below. A party can not urge 4 on appeal questions not raised in the trial court. Thus when defendant accused of murder made no-objection to the instructions in the trial court because not submitting the different degrees of assault, and failed to raise the question in a motion for a new trial he could not urge the point on appeal.</p> <p>Same: submission of issues: prejudice. Where there was evidence 5 that decedent was injured before the injury inflicted by the defendant, and the court instructed that to justify conviction the jury must find beyond a reasonable doubt that decedent came to his death as the result of the injury inflicted by defendant, as charged in the indictment, no prejudice to him resulted because pf omission to submit the included offense of assault.</p>

<p>Certiorari from Wapello District Court. — Hon. C. "W. Vermillion, Judge.</p> <p>Proceeding, in contempt for a violation of a liquor injunction. Judgment for the defendants.-</p>

— Hon. Hush Brennan, Judge. Suit in equity to set aside certain conveyances of real estate, for an accounting as to the rents and profits of the land covered by the conveyances, to charge defendants as trustees of certain funds paid to the deceased, Callanan, and to require an accounting from them, and for general equitable relief.

<p>Appeal from Allamakee District Court. — Hon. L. E. Fellows, Judge.</p> <p>Appeal from an order of the district court imposing a collateral inheritance tax upon a part of the estate of Hannah H. Adams, deceased.</p>

<p>Appeal from Polk District Court. — Hon. Chas. S. Bradshaw, Judge.</p> <p>Action at law to recover damages for a breach of contract to lease certain premises in the city of Des Moines. Trial to a jury, directed verdict for defendant, and plaintiff appeals.</p>

— Hon, Lawrence De Graff, Judge. Action at law to recover damages for breach of contract to sell and convey real estate. Defendant W. S. Hawthorne was dismissed from the ease on the theory that he was a mere agent for the sale of the property, his eodefendant being the principal and the real owner thereof.

— Hon. R. P. Howell, Judge. Action on notes, aided by attachment, with counterclaim against the attachment bond.. From a verdict and judgment on the counterclaim, allowed against the amount due on the notes, the plaintiff appeals.

<p>Evidence: mailing op letter : presumption. The depositing of a letter 1 properly stamped and addressed with the postoffi.ee department raises a rebuttable presumption that the same was received in due course of mail by the party to whom addressed.</p> <p>Evidence: contradiction op witness. It is competent for a party to 2 contradict the testimony of his own witness by proof of facts relevant to the issue.</p> <p>Same: admissions: hearsay. Where corporate stock was attached, 3 but an intervener claimed a lien thereon, and sought to show by an officer of the Corporation that he had received notice of the assignment of the stock to the intervener as collateral security, which the officer denied receiving, contrary admissions of such officer were incompetent as hearsay; as neither the officer nor the corporation had any interest in the suit.</p>

<p> Certiorari to Polk District Court. </p> <p>Appeal having been taken from a finding of the board of supervisors that a statement of consent for the sale of intoxicating liquor was sufficient, the complainant moved for an assignment of the cause for trial at the pending or next succeeding term. The motion was denied, and upon such ruling writ of certiorari was brought to this court.</p>

<p>Conveyances: construction: joint tenancy. A deed will be eon-1 strued according to the intent of the parti's, as gathered from the whole instrument; and while the granting clause when considered alone may aptly convey a fee, still if from the instrument in its entirety it clearly appears that the parties intended thereby to create a joint tenancy with right of survivorship it will be so construed, there being no fatal repugnance in the terms of the instrument.</p> <p>Same. A joint tenancy with the right of survivorship may be created 2 by a conveyance to two or more persons, where such intent clearly appears; the statute merely providing that such conveyances shall create a tenancy in common "unless a contrary intent is expressed.”</p> <p>Same. Where the clear intent of a conveyance was to create a joint 3 tenancy between'the grantor and the grantees, and provided that the one dying last should be the absolute owner, the use of the word "inherit” in connection with the survivorship, while not strictly accurate when applied to acquiring title by survivorship, will be treated as a mere inaccurate use of the word.</p> <p>Same. The provision of a conveyance that all of the parties may occupy 4 the property as a home so long as they remain unmarried, but upon the marriage of a party such right shall cease, is not inconsistent with a joint tenancy, but merely provides a contingency upon which the tenancy shall cease.</p> <p>Same: survivorship: rights op parties. Under a conveyance creat5 ing a joint tenancy and providing that in ease of the death of one of the grantees the surviving parties shall succeed to the interest of the deceased, the survivors take directly from the grantor and not through decedent, and the creditors of the decedent have no right in the property as against the survivors.</p>

— Hon. W. H. Fahey, Judge. Action to enjoin the defendant from maintaining a liquor nuisance. An injunction was denied, and from this ruling the plaintiff appeals.

<p>Negotiable instruments: holder in dub course: defense of usury: 1 statutes. The provisions of the Code of 1897 relative to usury, . the penalty for usury and recovery by a good faith purchaser on a usurious instrument, were not repealed by the Negotiable Instruments Act, either directly or by implication; but when the provisions of the latter act are construed in connection with the original statutes, as must be done so as to give effect to all provisions, if possible, the defense of usury is still available as against a holder in due course, the same as prior to the passage of the Negotiable Instruments Act.</p> <p>Same: bona fide purchaser: evidence: submission of issue. The 2 uncontradicted evidence of the purchaser of a note that he took the same without notice that it had its "inception in fraud may not justify the direction of a verdict in his favor; but there may be facts and circumstances in connection with the transaction which, considered together with the direct evidence on the subject, require •a submission of the issue to the jury. In the instant case the ques- . tion of whether the plaintiff was an innocent holder was for the jury.</p> <p>Same: negotiability. The negotiability of an instrument is not af3 feeted by a provision which waives the .provisions of any law intended for the benefit of the maker.</p> <p>Exclusion of evidence: waiver of error. Where the court excluded evi- • 4 dence at the time it was first offered, but subsequently during the trial changed his ruling and announced that it would be received, and the party then offered part of his evidence on the subject, though unable at the time to produce it all because of the absence of witnesses, but he asked no postponement until he could procure their attendance, he was not in position to urge error in the original ruling.</p>

<p>Judgments: liens upon real estate: satisfaction. The fact that a 1 judgment creditor applied a payment upon an open account held by him against the debtor, under an arrangement with the trustee of the judgment debtor, and executed a quit-claim deed to land held by the trustee under a trust arrangement to which he was not a party, did not release other land from the lien of the judgment although he knew that the debtor had sold and conveyed the same.</p> <p>Same: marshalling, of assets. The further fact that the judgment 2 creditor also released notes held by the trustee, the proceeds of the sale of the land, did not entitle a purchaser of land from the debtor, which had not been transferred to the trustee and was still subject to the lien of the judgment, to a marshalling of assets; especially as other creditors interested in the trust were not parties to the action.</p>

<p>Actions: forum: review on appeal. When an action has been brought 1 in equity and tried upon the theory that it was one of equitable jurisdiction, it will be so considered on appeal, whether the pleadings present an action properly triable in equity or at law.</p> <p>Same: appeal: adjudication. Where plaintiff brought an equitable 2 action to recover wages alleged to be due, and upon appeal the judgment for plaintiff was reversed without an order for remanding the cause or for a new trial, and a subsequent application in the appellate court for a lesser sum was refused, the trial court had no authority thereafter upon a motion based upon the same pleadings, record and evidence, to enter a judgment for plaintiff for a lesser sum; as the determination of the appeal was a final adjudication of all the issues involved.</p> <p>Same: appeal: reversal: dismissal of action: taxation of costs. 3 Where the appellate court adjudges that plaintiff is not entitled to recover on his petition, it is not necessary for the defendant to have the petition dismissed by the trial court, although the appellate court failed to enter a formal dismissal; as the case was no longer pending in any court. It was proper, however, upon the filing of a procedendo for the defendant to move for a retaxation of costs.</p>

— Hon. C. E. Albrook, Judge. ' Action for damages for alleged negligence wbicb caused the death of. plaintiff’s intestate. There was a verdict and judgment for the plaintiff, and the defendant- appeals.

<p>Drainage: assessment of benefits: matters to be considered. In 1 an apportionment of the cost of a drainage system the court may take into consideration the fact that certain tracts are so situated and of such topography that their drainage had been accomplished in whole or in part by the owners, through natural means or otherwise, and reduce the assessment of benefits which would otherwise accrue to such lands by reason of the construction of the system.</p> <p>Same. The fact that certain lands in a drainage district are so situated 2 by reason of their elevation that they do not need a drain of extraordinary depth may be taken into consideration in apportioning the cost of the same; but it does not necessarily follow that they are to be relieved entirely from the cost of such drain, although chiefly required to drain lands of a lower elevation in the district.</p> <p>Same: assessments: prejudice. That the trial court requested the 3 engineer to furnish a statement of the comparative eost of the different sections of the drain and its branches, which the court used in arriving at the assessments, was not prejudicial, where the computations were advantageous to the appellant.</p> <p>Same: appeal: correction of order. Where some of the appeals in 4 a drainage proceeding were withdrawn and others were disposed of by stipulation, and were either not brought to the attention of the court or were overlooked in the court’s final order, the order will be corrected on appeal.</p>

— Hon. C. G. Lee, Judge. Action in partition. Defendant Hauge is the owner of the interest of Mrs. Elizabeth McNamara Nelson, one of the heirs, by purchase at execution sale. The trial court charged this interest with a portion of a purchase-money mortgage, executed by Mrs. Nelson and other heirs, for the share of Wm. H. McNamara, another heir. Hauge appeals.

— Hon. Charles E. Albrook, Judge. Plaintiff sought to recover $111.10 for medicines and medical supplies furnished one Julia Evans, an indigent person, upon the verbal order of the trustees. There was a trial to the court, without a jury, and a judgment for defendant. Plaintiff appeals.

<p>Appeal from Franklin .District Court. — Hon. R. M. Wright, Judge.</p> <p>The opinion sufficiently states the case.</p>

— Hon. Charles S. Bradshaw, Judge. Action for damages for personal injuries. There was a verdict and judgment for the defendant, and plaintiff appeals.

— Hon. Hugh Brennan, Judge. Action against the administrator of John J. Riley, and against his widow and daughter, as beneficiaries of his estate. The plaintiff claims to be the owner of an undivided one-third of the estate of decedent, Riley, as an adopted child under and by virtue of a certain contract of adoption. A demurrer to his petition was sustained. He elected to stand upon his petition.

— Hon. R. M. Wright, Judge. Suit at law upon an account for services rendered by plaintiff as a physician and for medicine furnished the defendants. Trial to a jury. Judgment for plaintiff. Defendants appeal.

- — -Hon. Charles S. Bradshaw, Judge. This action was brought by plaintiff to recover damages resulting from the change of the established grade in front of plaintiff’s premises on East Locust street, in the defendant city. There was a trial to a jury, resulting in a verdict and judgment for plaintiff for $150. Plaintiff appeals.

— Hon. Wm. S. Ayres, Judge. • Action on promissory note. The trial court having set aside a default which had been entered against the defendant Laura B. Hammond, the plaintiff appeals.

<p>Original notice: service upon insane person: acceptance of serv1 ice by acting superintendent. The acceptance of service of notice of a suit for a patient confined in the hospital for the insane by one purporting to be the acting superintendent is not void, in the’ absence of any evidence as to how long he had been acting, whether he was a deputy or otherwise explaining his authority; as the court will assume that an acting superintendent was in charge of the hospital and acted with authority in accepting service of the notice.</p> <p>Same: waiver of irregularity. An irregularity in the service of 2 notice upon an insane person is waived by the voluntary appearance to the action of the regular guardian, the filing of answer and making defense for the incompetent.</p> <p>Insanity: presumption:' instructions. When a patient has been 3 discharged from a hospital for the insane as cured, it will be presumed that his sanity exists until the contrary is made to appear. Thus where there was evidence both for and against the sanity of a patient at a time subsequent to his discharge, an instruction that where a condition has been established a presumption obtains that it has existed and will continue to exist for some time, in the absence of evidence to the contrary, when followed by an application of the principle to the facts, was correct and sufficiently favorable to the defendants, who were alleging the insanity of the maker of the note in suit.</p> <p>Non-expert evidence. A non-expert witness cannot give his opinion 4 as to the sanity of a person without first detailing the facts upon which' his opinion is based.</p> <p>Evidence of value: competency of witness. A farmer who owned 5 horses and raised the one in question was competent to testify as to its value.</p> <p>Taxation of attorney’s fees. Attorney’s fees are not taxable in a suit 6- upon a note unless the statutory attorney’s affidavit is filed with and at the time of filing the petition.</p>

— Hon. Henry Bank, Jr., Judge. The trial court sustained a demurrer to plaintiff’s petition for a writ of habeas corpus, and plaintiff was remanded to the custody of defendant. Plaintiff appeals.

— Hon. O. D. Wheeler, Judge. ■ Action tried by agreement as in equity to determine the ownership of two certificates of deposit. The widow had possession of the certificates, which were properly indorsed in blank by the person to whom they were payable. The trial court refused to order the widow to turn the certificates over to the administrator; holding that the evidence did not overcome the presumption arising from the indorsement and the possession.

<p>Appeal from Story District Court. — Hon. Chas. E. Albrook, Judge.</p> <p>The opinion states the nature of the ease and the material facts.</p>

— Hon. J. H. Applegate, Judge. The defendant appeals from a judgment of conviction under an indictment charging him with unlawfully holding himself out as a physician and assuming to treat sickness and disease without a certificate authorizing him to engage in such practice.

— Hon. W. H. McHenry, Judge. This is a will contest. Tbe testator was T. W. Henry, wbo died a resident of Polk county in January, 1913. The chief beneficiary designated in the will was the surviving widow. The decedent left surviving him a son and daughter by a former marriage. These are the contestants of the will.

— Hon. George H. Castle, Judge. Action at law in replevin to recover certain personal property. Trial to a jury, and, at conclusion of plaintiff’s testimony, the court directed a verdict for the defendant. Plaintiff appeals.

— Hon. C. H. Kelley, Judge. Action at law to recover damages for breach of a contract to lay tile. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

<p>Partnership: evidence. In this proceeding to enforce the payment of 1 partnership notes against the estate of a decedent, on the theory that he was a member of the partnership, the evidence is held insufficient to establish the partnership relation.</p> <p>Same: partnership liability: estoppel. One may be estopped by 2 his acts and conduct to deny liability as a partner, although not in fact a member of the firm; and one holding himself out, or knowingly permitting himself to be held out to another as a partner, maybe liable for partnership indebtedness to one in good faith relying on the assumption of the partnership relation, although the relation did not in fact exist. Where, however, such a firm creditor knew or had good reason to know that such pretended partner was not in fact a partner an estoppel does not exist; as a creditor of the firm must show that he would not have extended the credit, unless he knew or had reason to know that such person was a member of the firm.</p> <p>Same: partnership liability: evidence. In this action the evidence 3 is held insufficient to show that decedent held himself out, or permitted himself to be held out, as a member of the partnership liable on the notes in suit.</p> <p>Evidence: statements oe a decedent. Although the statements of a 4. deceased person are admissible in evidence, when made many years before and are detailed from memory only, they are not entitled to great weight.</p>

— Hon. George Jepson, Judge. Action to restrain the defendant from trespassing on plaintiff’s land, and to ascertain and fix the true boundary line between the two parties. The opinion states the facts.

— Hon. John F. Oliver, Judge. Action on an alleged contract for broker’s commission in the sale of real estate. Defense that the contract was not in writing, and void -under the law of Nebraska, where made. Judgment for the defendant, and plaintiffs appeal.

— TIon. R. P. Howell, Judge. Appeal from a judgment for double damages for killing stock, and from an order granting a new trial as to a verdict directed against plaintiff on another cause of action pleaded in a separate count.

— Hon. C. A. Dudley, Judge. Action to recover interest on preferred stock of a corporation under a written guaranty. From a directed verdict and judgment for plaintiff, the defendants appeal.

— Hon. Thos. Arthur, Judge. The petition praying that the collection of a special tax be enjoined was dismissed, and plaintiff appeals.

— Hon. Hugh Brennan, Judge. Action by a trustee in bankruptcy to recover money distributed to a creditor within four months prior to filing of the petition therein resulted in judgment as prayed. The defendant appeals.

<p>Real property: evidence as to its character: competency. A party who had no personal knowledge that a tract of land inspected by him was the tract in controversy, but simply stated that it was pointed out to him by a third party as such tract, was not qualified to testify to the character of the land as being the identical land in controversy, and in an action involving fraudulent representations as to its character.</p>

<p>Wills: construction: distribution per oapita. Where real property is disposed of by will the estate passes by the terms of the will as an instrument of purchase, and not under the statute of descent. In the instant case the testator made a bequest to certain grandchildren to be distributed equally between them, and gave the residue of his estate to his wife for life, the remaining estate upon her death to be distributed among his heirs, share and share alike. He further provided that in ease any heir should not survive the wife the sum which would have gone to such deceased heir should be divided share and share alike among his heirs. Held, that the will embraced not only his living children but also the heirs of a 'deceased child at the time of his death; that the gift was per capita and not per stirpes, and that there could only be a substitutional gift upon the event of the death of an heir during the lifetime of the wife.</p>

— Hon. O. D. Wheeler, Judge. Action at law to recover .a balance claimed to be due on the purchase price of a certain tract of land, sold by plaintiff to defendant. Trial to the court without a jury. Judgment for defendant, and plaintiff appeals.

— Hon. Thomas Arthur, Judge. Action in equity to compel the transfer upon its books of shares of stock in defendant corporation. Cross-petition praying that the proffered certificate be canceled. From a decree against plaintiff, and in favor of defendant on its cross-petition, the plaintiff appeals.

Proceeding in certiorari to test the legality of fines and commitment for contempt, for failure to respond to subpoenas to testify by deposition, at the instance of the opposite party on pending actions.

— Hon. D. M. Anderson, Judge. Action on a promissory note to which the defendant Hinkle only interposed a defense. Verdict was directed as prayed, and judgment entered thereon. H. A. Hinkle 'appeals.

— Hon. James P. Hewitt, ■ Judge. Action for damages for personal injury because of negligence. Yerdict and judgment for plaintiff, and defendant appeals.

— Hon. N. J. Lee, Judge. Action to enjoin the obstruction of a road and to restrain the defendant from interfering with the use of the same by the plaintiff. Plaintiff claims a dedication of the road to the public, or that the public had acquired a prescriptive right to the use of the road. Decree for the plaintiff. Defendant appeals.

<p>Appeal from Cedar Rapids Superior Court. — Hon. C. B. Bobbins, Judge.</p> <p>Action to recover damages for personal injury. The opinion states the facts.</p>

— Hon. John F. Oliver, Judge. Appeal from a ruling on demurrer to a petition, which charged liability and damages for wrongful interference by defendant as to a contract between plaintiff and another.

— Hon. George H. Castle, Judge. Action for personal, injuries resulting from an obstruction on a sidewalk. From a verdict and judgment for plaintiff, the defendant appeals.

— Hon. E. B. Wood-ruff, Judge. Action to recover damages for alleged violation of a trust by an agent, for recovery on an oral guaranty, and for conversion. From a verdict and judgment for defendant, the plaintiff appeals.

<p>Appeal from Decatur District Court. — Hon. Thos. L. Maxwell, Judge.</p> <p>Appeal by defendant from a conviction of incest. — Affirmed.</p>