Volume 173 — Iowa Reports

— A. P. Barker, Judge. Action to test defendant’s right to the office of councilman of the city of Davenport resulted in a judgment ousting him. He appealed, and on motion the judgment was suspended, pending the appeal. The plaintiff has moved to set aside such order, and this is the subject of the annexed opinion.

— C. B. Bradshaw, Judge. Plaintiffs bring this action at law to recover commissions alleged to have been earned by them in the sale oí real estate for M. C. Howard in his lifetime. Defendant denies the claim and denies that the contract of sale, for negotiating which plaintiffs demand a recovery, was ever authorized or approved by Howard.

— Lorin N. Hays, Judge. This is a contest to ascertain who was elected superior judge by the voters in the city of Perry, November 3, 1914. 'Robert S. Barr was the only candidate for nomination at the primary in June preceding and, of course, was duly nominated and his name printed in the non-partisan judicial ticket on the ballot used at the election. He received 214 votes.

— C. B. Robbins, Judge. Action at law upon a promissory note. Defendant admitted the execution of the note, denied the transfer thereof by the original payee, Amos Diehl, to the plaintiff, pleaded the mental incompetency ^ of the payee to make a transfer of the note, alleged that the transfer was without consideration, and further pleaded a release, settlement and discharge of tbe note.

— Clarence Nichols, Judge. Action at law upon a written contract to recover the agreed compensation for the use of certain machinery leased by the plaintiff to the defendant, and for damages for certain breaches of the contract. The answer was a general denial of all damages claimed by plaintiff, and a counterclaim for damages for alleged false representations and breach of implied warranty. There was a verdict and judgment for the plaintiff, and defendant has appealed.

— C. G-. Lee, Judge. Suit in equity to declare a forfeiture and to recover an acre of ground and to quiet the title. There was a decree for the plaintiff. The defendant appeals.

<p>1 BANKS AND BANKING: Deposits — Erroneous or Improper Credit— Right to Correct. The entry on the books of a bank of a credit in favor of one dealing with the bank, followed by the issuance and delivery of a deposit slip, does not conclude the bank, and such entry, if erroneous, or made under a misapprehension of the facts, may be corrected, so long as it remains a mere matter of bookkeeping.</p> <p>PRINCIPLE APPLIED: A judgment defendant arranged with a bank for the money to pay the judgment and directed the bank to send the money to the clerk of the courts. The judgment plaintiff seems to have had an account at the bank. The cashier, instead of sending the money to the clerk, delivered to the judgment plaintiff a deposit slip or receipt for the amount and credited the latter’s account accordingly. The next day, the cashier learned that claim was made that certain attorneys had a lien oh the judgment and, thereupon, he forwarded the money to the clerk and cancelled the credit theretofore made in favor of the judgment plaintiff. Held, the bank was within its rights— that the issuance of the slip and the entering of the credit did not transfer to the judgment plaintiff the title to any money.</p> <p>2 ATTORNEY AND CLIENT: Authority of Attorney — Receiving Money Due on Judgment. An attorney whose authority has not been revoked has authority to receive from the clerk the amount of a judgment rendered in a proceeding in which the attorney was employed by the judgment plaintiff.</p> <p>PRINCIPLE APPLIED: See No. 1. After the money was paid to the clerk, it was paid to the attorney who obtained the judgment for the judgment plaintiff. The authority of the attorney had never been revoked. Held, the payment to the attorney was, in legal effect, payment to plaintiff.</p>

— W. H. McHenry, Judge. Action brought to declare void an ordinance vacating a certain alley.

— Franklin C. Platt, Judge. For many years, Boehmlér, a shareholder, was the secretary of the defendant association, and had unlawfully appropriatéd and converted to his own use its moneys, paid in by its members. The 20 shares owned by him were of par value of $100 a share, when fully matured.

— W. N. Treichler, Judge. Action at law to recover damages for the death of William J. Kirby, due to the explosion of the boiler of a steam locomotive upon which he (Kirby) was an engineer. Defendant denied the negligence charged and pleaded contributory negligence of the deceased. Upon the issues joined, the case was tried to a jury, resulting in a vferdict and judgment for plaintiff in the sum of $30,000, and defendant appeals.

— C. W. Mullan, Judge. This was an action brought by the plaintiff to recover of the defendant damages for an injury to his minor son, sustained while said son was in the employ of the defendant as brakeman on an interstate train. It is conceded that the son and defendant were engaged in interstate commerce at the time.

— C. E. Albrook, Judge. Action at law upon a promissory note -made by the defendants in the lifetime of the intestate. There was a judgment for plaintiff, and defendants appeal.

<p>Appeal from O’Brien District Court. — William Hutchinson, Judge.</p> <p>The opinion states tlie case.</p>

— -Milo P. Smith, Judge. The plaintiff was prosecuted in the police court of Cedar Rapids for discharging firearms within the city limits, in' violation of a city ordinance. Prom a judgment of conviction, he appealed to the district court. Upon trial there, he was again convicted and has appealed to this court.

— W. N. Treichler, Judge. Action for malicious prosecution against defendant Textbook Company, its agents and servants. Verdict and judgment for plaintiff in the sum of $2,500, and defendants appeal.

— J. H. Applegate, Judge. This is a proceeding by certiorari to test' the legality of the proceedings in reference to an attempted second consolidation of the defendant district with another district, or part thereof. The issue was decided in favor of the defendants, and judgment was rendered against plaintiff for costs. The plaintiff appeals.

<p>Appeal from Hamilton District Court. — Charles E. Albrook, Judge.</p> <p>The opinion sufficiently states the case.</p>

— F. M. Hunter, Judge. This is an action to recover damages for injuries resulting in tbe death of plaintiff’s intestate through the alleged negligence of the defendant company. There was a trial to a jury and a verdict and judgment for plaintiff. Defendant appeals.

— Milo P. Smith, Judge. Action at law upon a promissory note given for the purchase price of a horse. Defendant pleaded a breach of warranty in the sale of the animal. He also pleaded a rescission of the contract, -because of the breach of warranty. He further pleaded false and fraudulent representations of the animal, and averred that he rescinded the sale because thereof.

— W. H. Fahey, Judge. Appeal from the action of the district court in reducing drainage assessments. The facts are more fully stated in the opinion. Defendants appeal.

— M. F. Edwards, Judge. This is an appeal from an order of the district court, directing a sale of certain real estate alleged to have been a part of the estate of Mary Clary, deceased, to pay legacies. The appellant, Emma Clary McCoy, who is a daughter of said Mary Clary, deceased, claimed to be the owner of the real estate in dispute, under a deed executed by Mary Clary and placed in escrow until the death of said Mary, and at her death delivered to said Emma Clary McCoy.

— Milo P. Smith, Judge. Mandamus proceeding whereby the plaintiff seeks to compel the defendant railway company to provide him with an adequate private crossing. There was a decree for the plaintiff, and the defendant appeals.

— F. O. Ellison, Judge. Suit in equity to set aside a conveyance of land as having been obtained by defendant from the plaintiff through fraud and undue influence. Trial being had, there was a decree dismissing the petition, and the plaintiff has appealed.

<p>Appeal from Dubuque District Court. — J. W. Kintzinger, Judge.</p> <p>Criminad prosecution whereby the defendants are charged with keeping a house of ill fame in the city of Dubuque. They pleaded not guilty. "Upon trial had, there was a verdict of guilty and judgment accordingly. The defendants have appealed.</p>

<p>Appeal from Webster District Court. — C. G. Lee, Judge.</p> <p>Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.—</p>

— Henry Sidwold, Judge. Action for the construction of a will and for an order on the administrator tó distribute in accordance with plaintiffs’ claims. The facts appear more fully in the opinion. The trial court held that the four defendants, other than the administrator, were each entitled to one eighth of the estate, or, together, one half, as children of the husband of Mary Duncan, deceased. The plaintiffs appeal.

<p>Appeal from Des Moines District Court. — Oscar Hale, Judge.</p> <p>Action on warranties resulted in judgment as prayed. The defendant appeals.</p>

<p>Appeal from Linn District Court. — F. O. Ellison, Judge.</p> <p>Condemnation proceeding for railroad right of way purposes. Both parties appealed from the award of the sheriff’s jury. In the district court, the appeals were consolidated and tried as one case. From the award and judgment in the district court, the defendant has appealed.</p>

<p>1 PLEADING: Matters Requiring Specific Pleading — Compromise and Settlement. A settlement must bo specifically pleaded. (See. 3629, Code, 1897.) The pleader cannot do this by causing the trial court to enter a notation of his claim on the calendar.</p> <p>2 APPEAL AND ERROR: Review — Scope—Record Presented — Sufficiency. It is quite elementary that he who complains of error must present enough of the record to enable the court .to determine the question.</p>

H. Kelley, Judge. Action to recover possession of a certain lodge room, which, it is charged, is wrongfully withheld from the plaintiffs, contrary to the terms of a lease under which defendants . entered and now claim right of possession. There was a verdiet and judgment for defendants, and plaintiffs appealed.—

— Wm. S. Ayres, Judge. Action for damages on breach of contract to sell stock resulted in a verdict and judgment thereon for defendant. The plaintiff appeals.

— A. N. ITobson, Judge. • This is a complaint of the refusal of the court, at the instance of appellant, who is a creditor, to set aside the final report of the receiver, and to allow appellant to make objections to such report.

— -M. F. Edwards, Judge. Action to contest the will of Daniel O’Connor. The contestants are his six daughters. The proponents of the will are the widow and three sons. The verdict was against the validity of the will. The proponents have appealed.

— Q. H. Kelley, Judge. Appeal from -an order of the trial court setting aside plaintiff’s judgment against the defendant and setting aside the defendant’s default. From such order, the plaintiff has appealed.

— M. F. Edwards, Judge. Action in equity to enforce specific performance of contract for the purchase of land by defendant from the plaintiffs. Decree for plaintiffs as prayed, and defendant appeals.—

— O. D. Wi-ieeler, x Judge. In an action to foreclose a trust deed on the property of the defendant railway company, Ií. F. Saar intervened, claiming to hold a vendor’s lien upon a strip of ground across his land, which he had deeded to the railway for its right of way.

<p>Appeal from Blackhawk District Court. — Franklin C. Platt, Judge.</p> <p>Action to recover for personal injuries. Verdict for the defendant. • Plaintiff appeals. Affirmed.</p>

<p>Appeal from Plymouth District Court. — William Hutchinson, Judge.</p> <p>The opinion states the case.</p>

<p>EXECUTORS AND ADMINISTRATORS: Allowance to Surviving Wife and Children — Discretion of Court — Evidence. Evidence reviewed, and held, in view of the provisions of the will, that an allowance of $40 a month for the care of the two minor children, in addition to considerable other property received by the wife, was proper.</p>

— David Mould, Judge. Opinion on Rehearing. On petition of Claude William Gamier, filed in the office of the clerk of the district court, the applicant was appointed and qualified as administrator of the estate of John W. Stone, alleged to have died intestate in the state of Illinois (of which state he was a resident), leaving personal estate in Iowa, for the preservation of which, administration in this jurisdiction was'necessary.

<p>Appeal from Pottawattamie District Court. — E. B. Woodruff, Judge.</p> <p>The defendant, having been convicted of murder in the second degree, appeals.</p>

— C. B. Robbins, Judge. The defendant purchased a piano from one Schlussman. Later, plaintiff, claiming to be the owner of the piano, brought an action against defendant for the recovery of its possession, and, upon trial to the court without a jury, there was a judgment in plaintiff’s favor. The instrument, which had been taken under the writ and turned over to plaintiff, was left in its possession, and there was no judgment or assessment fixing its value.

<p>Appeal from Linn District Court. — E. O. Ellison, Judge.</p> <p>The opinion states the material facts. — Reversed.</p>

t — C. B. Bobbins, Judge. Action in equity to enforce collection of benefits of policy or certificate of insurance issued by the defendant brotherhood upon the life of one Emsley Hayden. There was a decree in plaintiff’s favor, and the last named defendant appeals.

— W. S. Hamilton, Judge. This action was brought by plaintiff to recover damages alleged to have been sustained by him because of alleged negligence of defendant in failing to pay to him at Detroit, Michigan, the sum of $15.00, by virtue of a money transfer message from Fort Madison, Iowa.

— D. F. Coyle, Judge. Action iu equity to restrain the alleged wrongful taking of sand and other material from within the high-water mark limits of the body of water known as Storm Lake, in Buena Vista County, Iowa. There was a decree defining the level of the lake and the high-water mark or boundary thereof. It also enjoined certain defendants from trespassing upon the lands within such boundary and dismissed the petition as against other defendants.

— C. G-. Lee, Judge. This is an action at law upon a promissory note. At the close of all the testimony, there was a directed verdict for the plaintiff. The defendant appeals.

— -Q-eorge W. Dunham, Judge. Plaintiff asks a divorce from the defendant on account of his alleged cruel and inhuman treatment, and for alimony. Defendant denies the facts alleged in the petition, and, after a full trial, the district court dismissed the plaintiff’s petition, and from such ruling and judgment, the plaintiff appeals. — •

<p>Appeal from Superior Court of Cedar Rapids. — C. B. Robbins, Judge.</p> <p>The opinion states the case.</p>

— Milo P. Smith, Judge. Action at law to recover commission alleged to have been earned by plaintiff in procuring a purchaser of the property of defendant. There was a verdict for plaintiff, and from the judgment entered thereon, the defendants appeal.—

— Frank Cummings, Judge. This is a condemnation proceeding for railroad right of way purposes. There was an award by the verdict of the jury and a judgment against the defendant railway company for the costs of the action. The defendant has appealed. — -

— J. J. Clarke, Judge. Action for damages for negligent delay in the shipment of stock. There was a trial to a jury and a verdict for the defendant. Upon motion of plaintiff, a new trial’was ordered. From such order, the defendant has appealed.

<p>INJUNCTION: Bond — Action on Bond — Proper Parties Plaintiff. Joint defendants in an action for injunction may be joint plaintiffs in an action on tbe injunction bond.</p>

<p>1 APPEAL AND ERROR: Assignment of Errors — Omnibus Assignment. An omnibus assignment of error is insufficient to raise any question. So held where the assignment was the naked statement that, "The court erred in admitting the testimony of" (eight named witnesses).</p> <p>2 EVIDENCE: Declarations — Explanatory of Possession of Property. Declarations of a party while in possession of personal property, explanatory of such possession, as that he holds in his own right or otherwise, are competent, even though the one against whom they are offered was not present when the declarations were made.</p> <p>3 SALES: Conditional Sales — Sales Under Guise of Lease — Legal Effect of Instrument Controlling. Irrespective of the words employed, if the essential legal effect of an unrecorded written contract is to effect a sale of personal property and to make the transfer of title or ownership thereof depend upon a condition, it is a conditional sale, and void as to creditors or purchasers of the one in actual possession obtained in pursuance of such contract, when such creditors or purchasers have no notice of such unrecorded contract. Contract analyzed and held to constitute a conditional sale and not a lease. (Sec. 2905, Code, 1897.)</p> <p>4. APPEAL AND ERROR: Review — Questions of Pact — Conflicting Evidence. Under a fair conflict of evidence, the findings of a jury on questions of fact are conclusive with the appellate court. So held where the jury found that the defendant did not have notice of a nonrecorded contract of conditional sale.</p> <p>5 SALES: Conditional Sales — Abandonment of Contract Before Rights of.Creditors Attach — Evidence. Evidence reviewed and held insufficient to show that a conditional contract of sale had been abandoned and the relation of bailor and bailee substituted before the rights of creditors and purchasers attached.</p> <p>6 TRUSTS: Express Trusts — Construction of Deed — “Secured Creditors’’. Trust deed analyzed, and held not to contemplate that the trustee would diminish the fund in his possession by recognizing alleged liens against which he could raise a legal objection.</p> <p>7 SALES: Conditional Sales — Recording Act — Who Is a “Purchaser’’? The trustee in a deed of trust of all of grantor’s property, duly authorized and obligated in the deed to sell such property and, generally, to close up all the affairs of the grantor and to pay all the creditors of grantor in proportion to their claims, said deed of trust having been accepted by both trustee and certain creditors, is a purchaser within the meaning of Sec. 2905, Code, 1897, providing that unrecorded conditional contracts of sale are void “against any creditor or purchaser”, without notice. Such a deed is, in effect, -a mortgage.</p> <p>8 TRIAL: Instructions — Form, Requisites and Sufficiency — Reference to Pleading. Reference to the pleading, by name, in the instructions is not required. The all-important essential is to fairly state to the jury the nature of the several disputed questions of fact upon which it is required to pass.</p>

— L. N. Hays, Judge. This is an action at law to recover damages for personal injury sustained by the plaintiff. It has once before been in this court, where the judgment of the trial court was. reversed. Landis v. Interurban Railway, 166 Iowa 20. A procedendo issued to the trial court on September 30, 1914. Some time after that, a paper denominated an amended and substituted petition was filed by plaintiff, setting up substantially the same grounds of negligence.

— Charles A. Dudley, Judge. Action to recover damages for personal injury. There was a directed verdict for the, defendant. Plaintiff appeals.—

— George W. Dunham; Judge. Action at law for damages on account of the death of plaintiff’s intestate. There was a directed verdict and judgment for defendant, and plaintiff appeals.

— Charles W. Mullan, Judge. Action in equity to enjoin a sheriff’s sale under execution of certain 150 shares of capital stock of the Black Hawk Building Company. The plaintiff bank claims to hold said shares as collateral security for a loan. The defendant bank, as a judgment creditor of the original owner of the shares, caused a levy of execution to be made upon such shares.

— F. M. Hunter, Judge. Action to oust the defendant company and its poles and wires from the streets, alleys and public places of the city of Chariton. The demurrer of the defendant to the petition was sustained. Plaintiff elected to stand upon the petition, and judgment was entered against the plaintiff. Plaintiff appeals.

Certiorari from Carroll District Court.- — M. E. Hutchison, Judge. Certiorari proceedings from a finding of the district court of Carroll County adjudging respondents Judge and Bunting not guilty of a contempt of court in selling or keeping for sale intoxicating liquors contrary to law.

— F. M. Hunter, Judge. Action to recover damages for injury to cattle and depreciation in value, due to a failure on the part of the company to transport and deliver them át their destination within a reasonable time.

— E. B. Woodruff, Judge. Action to recover damages based on the failure of the defendant to deliver to the plaintiff certain premises leased by the defendant to the plaintiff under written lease. Opinion states the facts. Verdict and judgment for the plaintiff. Defendant appeals.

— Thomas Arthur, Judge. The defendants’ wall fell on Walter L. Goodwin as he-was passing, and killed Mm. In this action, the administratrix of his estate claimed damages thereto, but the verdict was for defendants. From judgment thereon plaintiff appeals.

<p>-1 HOMESTEAD: Transfer or Incumbrance — Agreement to Convey Easement — Wife Not Signing — Effect. A written contract to convey to the public an easement only, across a homestead, may be specifically enforced though only signed by the husband, who owns the property, the easement not being such as to affect the substantial enjoyment of the homestead as such. So held under a contract to convey a strip of land for an alley. (See. 2974, Code, 1897.)</p> <p>2 DEDICATION: Nature and Requisites — Intention—Acceptance. No particular formality is required to constitute a dedication of land to a public use. Any act or declaration, whether written or oral, which clearly expresses an ■intention to dedicate, will constitute a dedication, if accepted by the public.</p> <p>PRINCIPLE APPLIED: Plaintiff owned land immediately north, of and abutting on defendant’s land. Plaintiff agreed to give a. strip of land along the east side of liis property for an alley. Defendant in return agreed, in writing, to give a strip-of land along the north side of his land for an alley. The two strips joined. Both opened upon public streets. Plaintiff afterwards built a store building along the north side of the strip which defendant had agreed to give. This strip was used, generally, by the public without objection from defendant. Subsequently, it was paved and paid for by plaintiff and defendant. Held, a dedication was clearly shown.</p>

<p>1 CRIMINAL LAW: Trial — Conduct of Counsel — Improper Argument. It is reversible error for the county attorney, on the trial of an indictment for murder, to state to the jury that, on a former trial on the indictment, the defendant was convicted of manslaughter. Such statement is in clear violation of the statute, and prejudice is conclusively'presumed. (Sec. 5423, Code, 1897.)</p> <p>CRIMINAL LAW: Trial — “Argument”—Opening Statement as 2 Constituting. An “opening” statement to the' jury is ah argument within the meaning of Sec. 5423, Code, 1897, prohibiting any reference to a former verdict on the retrial of a criminal charge, “either in the evidence or in argument”.</p>

— O. D. Wheeler, Judge. Action for the recovery of damages resulted in the judg.ment against defendant, from which it appeals.

<p>Appeal from, Linn District Court.- — W. N. Treichler, Judge.</p> <p>Action to recover for personal injuries. Verdict and judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Muscatine District Court. — A. P. Barker, Judge.</p> <p>Action to construe a will and for an accounting.</p>

— John F. Oliver, Judge. Action to enjoin the defendants from acting as directors of the Consolidated Independent School District of Holly Springs and from abandoning the schools of the districts from which taken. The petition was dismissed, and plaintiff- appeals.

<p>1 EVIDENCE: Negligence — Reasonable Care — Custom. Custom does not, of itself, fix a legal standard of care, but may have material bearing thereon. When plaintiff’s care is in issue and his conduct does not amount to negligence per se, he may show that other people, generally and customarily, did just as plaintiff did at the time in question, provided it be first clearly shown that the facts and conditions under which people customarily acted were substantially the same as the facts and conditions under which plaintiff acted. Evidence held properly rejected, because of failure to show similarity of conditions.</p> <p>PRINCIPLE APPLIED: Action for personal injury. An obstruction, unknown to plaintiff, existed on the parking on the west side of a street near a mail box. At about 9 o’clock, on a very dark night, with no lights in the street, plaintiff went diago- . nally across the street from the east side thereof, where she roomed, to the mail box in order to mail letters, fell over the obstruction and was injured. Evidence was offered that people residing on the east side of the street customarily passed diagonally across the street to the mail box for the purpose of depositing mail therein, but no attempt was made to show that such customary acts were done during dark nights when no lights were burning. Held, evidence properly rejected.</p> <p>2 MUNICIPAL CORPORATIONS: Negligence — Crossing Street Other Than at Regular Crossing. Negligence cannot be predicated on the act of one oblivious of the existence of any obstruction in a public street, in crossing said street on a dark night, with no'lights burning, at a point other than a regular crossing.</p> <p>3 MUNICIPAL CORPORATIONS: Streets — Extent and Degree of Care Required — Instructions Indirectly Limiting Duty to Sidewalks. An instruction which directly told the jury that the obligation of a city to keep its streets in a reasonably safe condition was confined to the sidewalks and regular crossings would be manifestly erroneous; an instruction which indirectly so states is equally erroneous.</p> <p>4 TRIAL: Instructions — Undue Emphasis on Plaintiff’s Theory — Er-ror. It is error to so draw instructions as to emphasize features in the testimony on one side, while sinking out of view portions of the testimony on the other side, deserving of equal attention.</p> <p>5 MUNICIPAL CORPORATIONS: Defective Street — Imprudence of Passing Over — Jury’s and Injured Person’s Viewpoints Contrasted — Contributory Negligence. If one passes over or across a public street, in which, an obstruction exists, and. knows that it is imprudent to do so,, and is injured, the penalty pronounced is one of contributory negligence. But this principle has no application when the injured party has no knowledge of the obstruction. In such case, it is error to instruct that the jury should find that the injured party was guilty of contributory negligence, if they, the jury, believe that it was imprudent to pass over the street. The viewpoint of the jury after the injury has occurred and the evidence has been presented, and the viewpoint of the injured party under the conditions facing him at the time of the injury, present a radical and self-evident difference.</p> <p>6 MUNICIPAL CORPORATIONS: Negligence — Defects in Street— Known and Unknown Defect Contrasted. One who passes over or along an obstruction in a public street and is injured thereby, knowing of the existence of the obstruction, knowing that it is imprudent to attempt to so pass, and knowing of a safer way which he might take, is guilty of contributory negligence. Self-evidently, this principle has no application when the injured party had no knowledge of the existence of the obstruction.</p> <p>7 EVIDENCE: Personal Injury — Present Pain — Complaints. Com-plaints of present pain on the part of plaintiff are admissible in an action for damages for personal injury.</p>

<p>1 DISORDERLY HOUSES: Evidence — Reputation of House — Non-Applica!)ility of Statute. Under a charge of keeping a “disorderly house” in violation of a city ordinance, evidence of the reputation of the house is not admissible. Sec. 4944, Code, 1897, authorizing such evidence under a charge of keeping a house of ill fame, is not applicable in such a case. '</p> <p>2 WITNESSES: Impeachment — Contradictory Statements — Rebuttal. Evidence in rebuttal which is competent as impeaching testimony should not be excluded because tending to support plaintiff’s main ease.</p>

<p>1 ROBBERY: Assault With Intent to Rob — Elements of “Assault”— Evidence. One is guilty of an assault who makes active preparation to do unlawful corporal violence to another and, with the ability and intent to immediately apply such violence, does some overt act indicative of such intent. Such overt act is necessity, but direct attempt at. violence is not necessar'y.</p> <p>PRINCIPLE APPLIED: An accused, late at night, entered a room and found the occupant asleep. The accused removed his shoes and, armed with a billy in one hand and a loaded revolver in the other, stealthily approached the cot and, without touching the person of the sleeping man, reached under the pillow in search of money. The sleeping man awoke and sprang to his feet, and the accused instantly fled. The accused claimed that the weapons were intended to "bluff” the sleeper if he awoke and made an attack, but there was direct evidence that the accused stated to a confederate that he (the accused) intended to hit the sleeping man. Held to constitute a definite menace of violence toward the sleeping man and to justify the conviction of an accomplice of assault with intent to rob.</p> <p>2 ROBBERY: Assault With Intent To Rob — Absence of Assault in Attempt — Subsequent Assault to Escape — Effect. If the element of "assault” is absent in the actual attempt to commit an offense, such element is not supplied by a later assault committed by the accused, after being discovered and in an attempt to escape.</p> <p>PRINCIPLE APPLIED: (Additional to No. 1.) In the attempt to escape, the accused either fell down or was knocked down, and the man whose money the accused had attempted to get tried to hold him. A confederate hit the man who was holding the accused, and the confederate and the accused escaped. Held, this latter assault would not supply the absence of an assault in the effort to get the money (assuming, arguendo, that there was such absence).</p> <p>3 ROBBERY: Assault With Intent to Rob — Elements of Offense — Trial —Instructions. An instruction in a prosecution for assault with intent to rob which omits all reference to the elements of "force or intimidation” is fundamentally erroneous.</p>

— W. IT. McHenry, Judge. The trial court found that a nuisance, created by the illegal sale of intoxicating liquors, existed on certain premises owned by the defendant Conkling.

<p>1 EVIDENCE: Parol As Affecting Writing — Deposit Slip. A memorandum or deposit slip, showing the receipt by a bank of a stated sum of money for account of a named person,- and containing no promise to repay, is not a “certificate of deposit”, but a receipt only, and is open to parol explanation.</p> <p>2 WITNESSES: Competency — Communications Between Husband and Wife — Transfer of Claim. A wife is a competent witness to prove the transfer of the property by the husband to the wife and what the husband said to the wife at the time in relation thereto. Such transaction is not a “communication” between husband and wife within the prohibition of Sec. 4607, Code, 1897.</p> <p>3 EVIDENCE: Hearsay — Effecting Gift or Transfer of Property. What a donor or grantor said in effecting a gift or transfer of property is not hearsay.</p> <p>4 GIFTS: Delivery — Sufficiency. Delivery may be effected by words only. So held in the ease of a gift of personal property by a husband to his- wife.</p>

— Hubert Utterback, Judge. Actions in equity. The two cases were submitted together, separate judgments to be entered.

<p>Appeal from Sioux District Court. — W. D. Boies, Judge.</p> <p>Action for damages consequent on alleged malpractice resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals.</p>

— Hugh Brennan, Judge. Suit to'cancel a contract to purchase shares of capital stock in the American Chronograph Company and recover the amount paid thereon. Defendant H. G. Sedgwick filed a counterclaim, demanding judgment for the balance of the purchase price. Both the petition and counterclaim were dismissed. H. G. Sedgwick appealed and, as he has departed this life since, the administrator of his estate has been substituted as party defendant.