Volume 177 — Iowa Reports

Certiorari from Woodbury District Court. — John W. Anderson, Judge. Certiorari proceeding to test the validity of-a commitment for contempt of court for the violation of an injunction in the sale of intoxicating liquors or being concerned therein. The trial court found the defendant in the contempt proceedings, the plaintiff in this case, guilty, and committed him to the reformatory at Anamosa, Iowa, for a period of not exceeding one year.

— Francis M. Hunter, Judge. This action was brought by plaintiff, a copartnership, against the defendant, to recover upon a policy of insurance the sum of $708.53, with interest, for damage by fire which occurred on the 7th day of August, 1912, by the destruction of property described in the policy. A jury was waived and the case tried to the court upon an agreed statement of facts, with a small amount of oral testimony.

<p>Appeal from Muscatine District Court. — L. J. Horan, Judge.</p> <p>Supplemental opinion on petition for rehearing. — • Rehearing</p>

<p>TRUSTS: Establishment of Trust — Following Trust Property or Pro-1 ceeds — Showing Necessary — Fraud. One who has been fraudulently deprived of his property and seeks to establish a trust against the defendant and defendant’s general creditors, must actually point out his property which is the subject of the trust, or actually show that his property has passed into other identified property and is preserved in that form in the hands of defendant.</p> <p>CORPORATIONS: General Creditors — Fraudulent Transfer of Assets 2 —Creditor’s Lien. Equity regards the property of a corporation as held in trust for the payment of the debts of the corporation, and recognizes the right of creditors to pursue such property into whosesoever possession it may be transferred, unless, in the ordi-, nary course of business, it has passed into the hands of a bona fide purehaser.</p> <p>PRINCIPLE APPLIED: Plaintiff brought action against a corporation for rescission of a fraud-induced contract for the purchase of corporate stock. All the stockholders knew of the suit. Less than two weeks thereafter, the stockholders, under a perfectly amicable arrangement, caused the corporation and its property to be placed in the hands of a receiver, on the ground of insolvency, and, on the same day, the court ordered the sale of the corporate property on a date two weeks thence. The property was so sold to the president of the corporation, the sole consideration being a promise to pay the debts of the corporation. The receiver was discharged the next day. No notice of any step in the receivership proceedings was ever served on any creditor. Three weeks later, the sole stockholders of this now defunct corporation organized a new corporation (with a name, almost identical with the old), became its sole stockholders, and the said property, bought by the president for himself and associates, was conveyed to the new corporation. The.stockholders in the new corporation paid nothing for their new stock. Subsequent to these manipulations, plaintiff secured judgment against the defunct concern. Held, the transfer was not in good faith in the ordinary course of business, and equity would decree a lien on said property in the hands of the new corporation.</p> <p>RECEIVERS: Nature of Receivership — Friendly (?) or Adversary (?) 3 Evidence reviewed, and held to show that the receivership in question, was not adversary, but a friendly proceeding among all the stockholders to so manipulate the affairs of the corporation as to defeat a creditor in the collection of his claim.</p> <p>PRINCIPLE APPLIED: See No. 2.</p>

— A. J. House, Judge. Action to recover from the purchaser of corporate property the amount of a debt due from the corporation to the plaintiff, based on the theory that the defendant, the purchaser, agreed, as a part of the consideration of the sale to him of the corporate property, to pay all the corporate debts. Trial to a jury. Yerdict for the plaintiff, which, on the motion of the defendant, was set aside on the ground that the verdict was not supported by the evidence.

— R. M. Wrigi-xt, Judge. This is an action by plaintiff against one Burns, a contractor, and the appellant, Southern Surety Company, which signed a bond in the sum of $2,000 with said contractor as surety. The case was tried to the court without a jury. The court found for plaintiff, and rendered judgment against the surety company for $2,000, the amount of the bond, with interest and costs. The surety company appeals.

— Robert Bonson, Judge. Contestant was an independent candidate for the office of coroner of Dubuque County at the general election of 1914, and the incumbent, the regularly nominated candidate on the democratic ticket. The latter was declared elected, by the board of supervisors, whereupon a contest was instituted and the incumbent declared elected, by the court of contest.

Wright District Court. — Charles E. Albrook, Judge. Action at law to recover $424 rent alleged to be due on an oral contract; a second count to recover tbe same upon a quantum meruit for the use of land. The defendant counterclaimed, and asked to recover $360 rent paid by him and $200 for work and labor in preparing and plowing land and putting it in condition for cropping as soon as it should be tiled under an agreement as alleged by him.

— W. H. McHenry, Judge. Action for balance of account, to which defendant pleaded a counterclaim. Judgment was entered for plaintiff, and the counterclaim dismissed. The defendant appeals.

— Thomas Arthur, Judge. Action on a contract resulted in a verdict for plaintiff, but, on motion of defendant, the verdict was set aside and a new trial ordered. The plaintiff appeals.

— M. P. Smith, Judge. Action for damages alleged to bave been caused by a defective sidewalk resulted in a verdict for defendant and judgment thereon. The plaintiff appeals.

<p>WILLS: Remainders — Contingent (?) or Vested (?). A remainder 1 is contingent when it is so limited as to take effect (a) as to a person not in esse, (b) as to a person not ascertained, (c) upon an event which may never happen, or (d) upon an event which may not happen until after the determination of the particular estate. Will construed, and held to create a contingent remainder.</p> <p>• PRINCIPLE APPLIED: A will devised all of testator’s property to trustees, with power and direction to manage, and to pay the net income to the wife during her life. It then provided: “Upon the death of my said wife, all of my estate then remaining shall be taken absolutely ... by my six children (naming them), who may he living at that time, and the issue of any such child who may be then deceased, such issue taking the share to which such deceased child would be entitled, if living. . . .” Held, the estate in remainder here created was contingent (1) on the child’s outliving the wife, and (2), if the child did not outlive the wife, on the leaving of issue: therefore, the child who died before the death of the mother, and issueless, took no estate.</p> <p>WILLS: Remainders — Construction—“Upon.” A devise to a re-2 mainderman “upon” the death of the life tenant does not necessarily have reference solely to the time the estate is to he enjoyed. Such term may refer to the time of the vesting of the estate.</p>

— Henry Silwold, Judge. This is an appeal from an order of the district court sustaining objections to the final report of the executor of the estate of John R. Barnes, deceased. The executor sought to deduct the sum of $3,714.20 from the distributive share of the objector. The objections were filed by Mary B. Lackey, daughter, of said deceased.

<p>LIBEL AND SLANDER: Libels Per Se — Charging Violation of Or-1 dinance. A false and malicious publication that plaintiff, mayor of one city, had been convicted of violating an ordinance of a neighboring city governing the speed of automobiles, and had been fined $15, is libelous per se.</p> <p>Evans, C. J., and Preston, J., dissent, holding that the ruling on demurrer was right because no defamatory publication was pleaded.</p> <p>LIBEL AND SLANDER: Libels Per Se — Provoking to Wrath. A 2 false and malicious publication that one Jones had employed another to move a house for him, and that such undei’taking by said employee had been stopped by injunction, on account of the manner in which the work was being done, because violative of an ordinance enacted while Jones was mayor of the town, and representing that the mayor was defendant in said action while he ought to have been plaintiff, is libelous per se.</p> <p>Deemer, Ladd and Gaynor, JJ., dissent.</p> <p>Evans, O. J., and Preston, J., dissent, holding that the ruling on demun'er was right because no defamatory publication was pleaded.</p> <p>LIBEL AND SLANDER: ‘ Libels Per Se — Pleading—Erroneously 3 Sustaining Demurrer — When Harmless Error — Damages. A ruling erroneously sustaining a demurrer to a petition for damages for libel per se, on the .mistaken theory that no cause of action is pleaded, will be affirmed on appeal when it appears from said pleadings that plaintiff could, in no event, recover nore than nominal damages. So held where the false charge was (a) that a house mover employed by plaintiff had been enjoined, along with plaintiff, from moving a tractor over paving, in violation of an ordinance enacted while plaintiff was mayor of the town, and (b) that plaintiff had been convicted and fined for violating a speed ordinance.</p> <p>Deemer, Ladd and Gaynor, JJ., dissent.</p>

<p>INFANTS: Offenses — Incorrigibility—Juvenile Court — Petition—Suf1 ficiency. The petition for an order respecting the custody and control of an incorrigible infant is sufficient, which alleges that such infant (a) is 11 years of age, (b) is under the- control of a named person, (c) is not an inmate of any state institution, (d) is not charged with any crime, but (e) is a dependent, neglected and delinquent child, and is, in fact, incorrigible. (See. 254-al4, Code Supp., 1913.)</p> <p>INFANTS: Offenses — Juvenile Court — Summons and Notice — Waiver. 2 Neither summons nor notice need bo issued, nor date of hearing fixed, in proceedings under the Juvenile Act (Chapter 5-B, Tit. Ill, Code Supp., 1913), when the infant appears at the hearing in person, by attorney, and by his mother.</p> <p>COURTS: Jurisdiction — Presumption—Notice or Appearance — Juve3 nile Proceedings. The contrary not affirmatively appearing, it will be presumed that an order or judgment of the district court was entered only after proper service of notice, or appearance. So held as to an order in juvenile proceedings.</p> <p>INPANTS: Offenses — Juvenile Court — Guardian Ad Litem. A guará dian ad litem need not be. appointed in proceedings for juvenile delinquency, etc.'</p> <p>INPANTS: Offenses — Juvenile Court — Notice. The appearance of 5 the mother, in juvenile proceedings against her child, renders notice to others unnecessary.</p>

<p>DESCENT AND DISTRIBUTION: Persons Entitled — Paternity— 1 Evidence. Evidence reviewed, and held sufficient to sustain a finding that plaintiff was a son of deceased.</p> <p>DESCENT AND DISTRIBUTION: Persons Entitled — Paternity— 2 General and Notorious Recognition. General and notorious reeoguitioú of the paternity of a child may be established even though there is a showing of occasional denials of such paternity by the putative father.</p> <p>DESCENT AND DISTRIBUTION: Persons Entitled — Paternity— 3 Notorious Recognition. General and notorious recognition by a putative father of the paternity of a child need not be such that it was known to even a majority of the people in the community.</p>

— F. 0. Ellison, Judge. Suit to quiet title in 80 acres of land. A cross-petition was filed, praying that relief be denied plaintiff and title be quieted in defendant. On hearing, the cross-petition was dismissed and title quieted in plaintiff. The defendant appeals.

Action to recover possession of real estate. Cross-petition asking equitable relief, and that the title to this disputed tract be quieted in defendants. Judgment and decree for the defendants on cross-petition. Plaintiff appeals.

— H. K. Evans, Judge. Suit iu equity to enjoin defendants from interfering with plaintiffs in the use and enjoyment of a certain strip of land and to require defendants to remove certain obstructions placed thereon. Defendants challenged plaintiffs’ right to sue, denied their title or right to enjoy the strip, pleaded abandonment and non-user thereof and estoppel and the statute of limitations.

— N. J. Lee, Judge.. Action to recover the contract price of goods sold and delivered under a written contract. The answer was a general denial, with an admission, however, of the execution of the contract and of the receipt of the goods thereunder.

— E. M. McCall, Judge. Charles A. Johnson died intestate, December 3, 1914, leaving him surviving seven children. His wife had previously departed this life. He had acquired Lot 4 in Block 13 in Hornstein’s First Addition to the city of Boone, July 2, 1901, and occupied it as a homestead from that time until his death.

— Lawrence DeGraee, Judge. Action to recover for money had and received. Judgment for the plaintiff in the court below for part of plaintiff’s claim. Both parties appeal.

<p>Appeal from Cass District Contri. — E. B. Woodruff, Judge.</p> <p>The opinion states the ease. The plaintiff appeals.</p>

B. Thornell, Judge. Action on a promissory note resulted in a directed verdict and judgment against defendant, from which, he appeals.

— George Jepson, Judge. Suit brought by Vernie Smith to recover damages alleged to have been caused by his being burned in a fire on a dump ground in the yards of defendant company at Cherokee, Iowa. There was a trial to a jury. Defendant introduced no evidence. At the conclusion of plaintiff’s testimony, the trial court directed a verdict for the defendant. Plaintiff appeals.

<p>DIVORCE: Alimony — Modification of Decree — Power of Court. The 1 court has no inherent power to 'modify a decree of divorce as regards alimony — no power to so modify except for such fraud or mistake as would justify a modification or change of (my judgment.</p> <p>DIVORCE: Support of Children — Modification of Decree. A decree 2, 5 of divorce awarding the custody of children, but with no allowance for their support, may be so subsequently modified, on a showing of- change of conditions, as to provide for such allowance to the one having such custody. Evidence reviewed, and held excessive.</p> <p>DIVORCE: Alimony — Modification of Decree — Fraud. Evidence re-3 viewed, and held insufficient to show that all reference to alimony for the wife was omitted from the decree of divorce in her favor by reason of the fraud of the husband.,</p> <p>DIVORCE: Alimony — Silence of Decree — Subsequent Modification. 4 A decree of divorce, silent as to any alimony for the successful party, cannot thereafter be so modified as to provide for alimony, even on a showing of change in financial condition.</p> <p>DIVORCE: Support of Children — Modification of Decree. 2,5</p>

— Lawrence DeGraff, Judge. The indictment charges the defendants with the crime of nuisance. Trial to a jury. There was a directed verdict for the defendants, and the State appeals.

— M. F. Donegan, Judge. The petition in the first of the above entitled causes alleged that defendant was maintaining a place in the city of Davenport wherein intoxicating liquors are kept for sale and sold, and prayed that the same be .enjoined as a nuisance. The defendant, in his answer, alleged compliance with the mulct law, but for its alleged repeal, and pleaded that such repeal had not been effected, because of matters considered in the opinion.

— W. D. Boies, Judge. Criminal prosecution charging the defendant with the maintenance of a liquor nuisance. There was a plea of not guilty and a plea in abatement. There was a verdict of guilty and a judgment of conviction entered thereon. Defendant appeals.

<p>APPEAL AND ERROR: Briefs — Overpresentation. The practice of 1 overpresenting a point on appeal by a flood of authorities on elementary principles of law, or by a like citation of authorities which have but shadowy, if any, application, is strongly discouraged.</p> <p>HOMICIDE: Defense of Another — Belief of Accused — Knowledge of 2 One Assaulted. The honest and reasonable viewpoint of one who claims to have killed in defense of another controls, not the knowledge of such other that he was not in danger.</p> <p>HOMICIDE: Defense of Another — Belief of Accused — Limiting Ver3 diet to Manslaughter; If the accused committed a homicide in the honest and reasonable belief that another was about to be killed, or to receive great bodily injury, he is entitled to an absolute acquittal, irrespective of amy other findings by the jury. It follows that in such a case it is fundamentally erroneous to instruct (a) that, if the one defended was not, in truth, in any such danger, and (b) that, if deliberation, premeditation and malice aforethought be lacking, the verdict could not be above manslaughter.</p> <p>HOMICIDE: Defense of Another — Evidence—Ancient Threats and 4 Assaults. Antecedent threats and assaults in the presence of the accused, made by deceased against and upon the one assaulted, men though very remote, in point of time, from the fatal encounter, are admissible as bearing on the state of mind of the- accused when the fatal shot was fired, especially when such prior threats and assaults are of the same nature as those occurring at the time of the fatal encounter. So held where the threats and assaults were made six years prior to the killing of deceased.</p> <p>HOMICIDE: Defense of Another — Evidence—Belief of Accused— 5 Conclusion. Defendant, on trial for homicide, but claiming that she shot in defense of another, may testify directly, as an allow-able conclusion, as to her belief and apprehension that such other was in danger of being killed or of suffering some great bodily injury.</p> <p>TRIAL: Reception of Evidence — Objections—Conclusions—Homicide. 6 A question not on its face calling for a conclusion should not be excluded on that ground. Motion to strike is the proper practice if an objectionable conclusion be stated.</p> <p>PRINCIPLE APPLIED: Defendant was on trial for killing her husband, but claimed she fired in defense of her son. Held, the following questions were improperly excluded as calling for conclusions:</p> <p>1. Whether she (defendant) ever heard deceased make any threats against her son.</p> <p>2. Whether she saw deceased pursuing the son with a razor.</p> <p>3. Whether she had, on a certain occasion, accused the deceased of trying to kill the son.</p> <p>4. What was the occasion of the son’s leaving home on a certain occasion.</p> <p>5. What reason she had for believing the deceased would kill the son.</p> <p>HOMICIDE: Defense of Another — Evidence—Belief of Accused— 7 Reasons for Belief — Conclusions. Objectionable conclusions are not called for by asking one who is defending a homicide on the ground of having fired in defense of another, to detail the reasons for believing that deceased was about to' kill such other person and to detail the facts and circumstances supporiinff such belief.</p> <p>PRINCIPLE APPLIED: Defendant was on trial for homicide, and was defending on the plea that she fired in defense of her son. The following questions were held proper:</p> <p>1. What made you think the deceased would kill your boy?</p> <p>‘2. What reason did you have for believing that deceased would kill your son?</p> <p>3. What facts did you know of that caused you to believe that deceased would kill your son?</p> <p>4. What circumstances did you know of in the previous relations between deceased and your son that caused you to believe that deceased would kill your son?</p> <p>TRIAL: Reception of Evidence — Objections to Answer Without Mo-8 tion to Strike — Effect. Sustaining an objection which was interposed to a question after it was answered, as effectually removes the answer from the record and from the jury as though there had been a motion to strike the answer.</p> <p>HOMICIDE: Malice Aforethought — Lack of Malice — Evidence. Be-9 cause of irrelevancy and immateriality, it is not available to- a defendant accused of a homicide to show that, soon after the homicide, defendant gave to an outsider directions to take possession of everything and directions “as to how the body of deceased should be put away.”</p> <p>EVIDENCE: Acts, Declarations and Conversations — Introduction of 10Part — Effect. The introduction of part of a conversation by one party arms the other party with the right to introduce any omitted part of the conversation. So held in a homicide case as to a conversation had with defendant shortly -after the killing. (Section 4615, Code, 1897.)</p> <p>APPEAL AND ERROR: Harmless Error — Erroneous Exclusion of 11 Evidence. The erroneous exclusion of evidence on cross-examination is rendered harmless by the neglect of the injured party to avail himself of the excluded evidence when the same witness, eoncededly non-hostile, is later called as his own witness.</p> <p>HOMICIDE: Defense of Another — Evidence—Burden of Proof. The 12 State has the burden of proof to show that defendant, on trial for homicide, did not act in defense of another. Instructions reviewed, and held to meet this rule.</p> <p>EVIDENCE: Res Gestee — Ultimate Test — Spontaneity—Logical Re-13 lation. The ultimate test by which to determine whether proffered testimony is res gestee is, (a) spontaneity, and (b) logical relation of the offered testimony to the main event.</p> <p>EVIDENCE: Res Gestse — Improper Limitation — Impeachment. That 14 which is res gestee is always substantive evidence of the matters stated. Limiting its effect, in the present case, to impeaching purposes, was error.</p> <p>CRIMINAL LAW: Instructions — Advice and Caution — Disparage-15 ment of Defense — Self-Defense. It is the right and duty of the court, when necessary in the interest of justice, to give such advisory and cautionary instructions to the jury as to the nature of a defense as will enable the jury to reach a true and just verdict.</p> <p>PRINCIPLE APPLIED: The following instruction is approved: “That the defense of self-defense, and the evidence relating thereto, should be carefully scrutinized, and considered and weighed by the jury, to the end that, if an accused was in fact acting in self-defense, he should not be found guilty, but, if he was not acting in self-defense, then a due regard for the ends of justice and peace and welfare of society demand that persons guilty of crime may not make use of that plea as a means of defeating justice, and to protect them from criminal responsibility for a violation of the criminal statutes of our state.”</p> <p>CRIMINAL LAW: Defenses — Indirect Extrajudicial Confessions of 16 Another. Indirect extrajudicial confessions of another cannot aid an accused, — for instance, that such other, (a) immediately after the shooting of deceased, was seen on the premises with a revolver in his hand, (b) was subsequently accused of the crime, and (c) has fled the jurisdiction of the court.</p> <p>HOMICIDE: Instructions — Guilt of One Other Than Accused — At-17 tendant Acts. Even though accused relies on the plea of justifiable homicide, yet, on the question of who fired the fatal shot, the jury should, by proper instructions, be directed, if request is made, to consider the acts of others, intimately related to and attending the acts of accused. So held where another than accused was present when accused fired at deceased, had a revolver in his hand immediately after the said shooting, shortly thereafter hid certain cartridges, and, later, denied having had possession of said articles.</p>

<p>ADULTERY: Evidence — Sufficiency—Disposition and Opportunity. 1 Disposition to commit adultery and opportunity to commit it are not, of themselves, sufficient to support a conviction. Evidence reviewed, and held that the evidenee embraced much more than mere disposition and opportunity.</p> <p>ADULTERY: Election Between Acts — Continuous Adulterous Per-2 formance. No election need be required by the State of the aet on which it will rely for a conviction when the record, ample to support a conviction, does not show any specific and definite act of sexual intercourse, but simply a continuous adulterous performance between the defendant and the guilty spouse.</p> <p>CRIMINAL LAW: New Trial — Reference to Pailure to Testify. A 3 declaration by the public prosecutor in argument, on the trial of a charge of adultery in which defendant was not a witness, that "There has not been any testimony to explain why they (manifestly meaning defendant and the guilty spouse) were out on that lonely byway; why have they not explained that?" is not such a reference to defendant’s failure to testify as to necessitate a new trial under Sec. 5484, Code, 1897, the guilty spouse, not on trial, being present and not having made any explanation.</p>

— Francis M. Hunter, Judge. The defendant was indicted, tried and convicted for maintaining a liquor nuisance, and appeals.

<p>INCEST: Evidence — Good Character. General good moral character 1 is a defensive circumstance in a prosecution for incest.</p> <p>CRIMINAL LAW: Evidence — Motive for Prosecution. The sinister 2 motive for a criminal prosecution is relevant and material. So held where the theory of the defense was that a charge of incest was inspired by the very great intimacy between defendant’s landlord and defendant’s wife, and the feeling of hostility engendered thereby between defendant and his wife and children.</p> <p>CRIMINAL LAW: Trial — Argument—Due Bounds. It is not re-3 versible error for the public prosecutor to assert, in argument to the jury, (a) that he had no doubt of defendant’s guilt, (b) that he would not prosecute if he had such doubt, and (c) that the court records of the state show that a large percentage of incest eases are between father and daughter.</p> <p>WITNESSES: Competency — Husband and Wife — Criminal Law. A 4 wife is a competent witness to testify against her husband charged with incest. (See. 4606, Code Supp., 1913.)</p> <p>WITNESSES: Examination — Leading Questions. The trial court has 5 a wide discretion as to waiving the rule of evidence which condemns leading questions. So held where the witness, prosecutrix in an incest case, was 11 years of age and face to face in the court room with the defendant, her father.</p>

— Thomas Arthur, Judge. Action for damages consequent on the overflow of plaintiff’s land, alleged to have been caused by insufficient openings for the passage of water under defendant’s railway bridges, resulted in judgment against defendant, from which it appeals.

<p>MUNICIPAL CORPORATIONS: Town Plats — Effect—Villages Un1 incorporated. Effect of platting lands within incorporated cities and towns into lots, streets, etc., and the like platting of lands within unincorporated villages, contrasted and discussed.</p> <p>MUNICIPAL CORPORATIONS: Town Plats — Plats Antedating In-2 corporation — Rights Acquired. Whether an incorporated town, by the act, of incorporation, acquires the fee to village streets embraced within the incorporation, or only an easement therein, qucere. (See Secs. 638, 917, 1482, 1507, Code, 1897.)</p> <p>MUNICIPAL CORPORATIONS: Town Plats — Vacation Before Ac-3 ceptance — Effect. The filing of a town plat is, in ease of village lands, a continuing tender to the public of an easement, only, in the streets, and, in the case of lands within an incorporated town or city, a like tender to the city or town of the fee to the streets. In either case, there must he an acceptance of the tender hefoo-e the public acquires any rights thereunder. Acceptance delayed beyond a reasonable time, with no intervening right attaching in others, arms the then owner of the abutting lands with right to withdraw the tender by a vacation of the plat and to take possession of the vacated street. (Secs. 917-920, Code, 1897.)</p> <p>MUNICIPAL CORPORATIONS: Town Plats — Vacation—Judgment 4 Confirming — Effect—Res Adjudicata. A judgment of court, all parties interested being before the court, confirming the vacation of a part of certain streets of a town plat by the owner of the abutting lands, acting under Section 919, Code, 1897, necessarily embraces a finding of the existence of all the facts entitling the owner to vacate, to wit: (a) That the streets sought to be vacated had not been accepted by the city; (b) that said streets were not needed by the public; and (c) that the vacation abridges no right of any other proprietor in the plat: and such judgment, not having been appealed from or in any wise modified, becomes a finality. (Sec. 920, Code, 1897.)</p> <p>MUNICIPAL CORPORATIONS: Town Plats — Partial Vacation— 5 Conditions. The owner of lands within a town plat has an absolute right to vacate a pwrt of such plat and the streets embraced therein (a) if the vacation abridges no right of any other proprietor in the plat, (b) if the vacation closes no traveled highway, and (c) if the streets sought to be vacated, are not needed. Evidence reviewed, and held to sustain the validity of a vacation. (Sec. 919, Code, 1897.)</p> <p>Saiinser, J., dissents.</p> <p>MUNICIPAL CORPORATIONS: Town Plats — Vacation — Paying 6 Taxes on Vacated Streets — Effect. The fact that he who assumes to vacate certain streets thereafter paid taxes on such vacated lands, while not controlling on the validity of the said vacation, has bearing on the intention of the one assuming to vacate and the town thereafter questioning the validity of such attempted vacation.</p> <p>MUNICIPAL CORPORATIONS: Town Plats — Vacation—“Need” 7 for Street. On the question of the “need” for a street sought to be vacated under Sec. 919, Code, 1897, regard must be had to the future.</p>

<p>APPEAL AND ERROR: Remand. — Procedendo — Compliance. 1 Amended decree in purported compliance with, the decree • of the appellate court reviewed, and held to be in compliance with the opinion and order rendered.</p> <p>EQUITY: Pleading — General Prayer — Effect. Under a general 2 prayer for relief in an equity action, the court is empowered to make such adjudication as will accord relief to plaintiff, even though his theory of the facts is not established. So held where . plaintiff, a lot owner, claimed he had the right to pass over a strip of land because it was a street, and the court found it was not a street, but was land reserved for railway purposes for the use and benefit of the lot owners.</p> <p>CERTIORARI: When Writ Lies — Legality on Decree on Remand. 3 Certiorari will lie to determine whether the district court exceeded its jurisdiction in entering a decree in a cause remanded by the appellate court.</p>

<p>BROKERS: Authority — Authority to Sell. Written authority “to 1 sell” on certain specified terms, and not merely to find a purchaser, carries authority, mtlwn the authorized limits, to do all things necessary to make a binding enforceable contract — for instance (a) to receive the authorized cash payment, or (b) to enter into a contract under the terms authorized.</p> <p>SPECIFIC PERFORMANCE: Contracts Enforceable — Unauthorized 2 Contract by Broker. A contract for the sale of land, by and in the name of brokers, but in excess of th&vr authority, is nonenforeeable.</p> <p>PRINCIPLE APPLIED: Brokers were authorized to sell on the following terms: $500 cash; $1,500 on March 1, 1914; balance in 10 years, at. 5 per cent.</p> <p>The brokers entered into a written contract as follows: Cash, $500; $1,500, or more, March 1, 1915; option to pay $100 or any multiple thereof on any interest day; grantor to furnish an abstract showing good and sufficient title clear of all liens and incumbrances.</p> <p>Held, non-enforeeable by grantee.</p> <p>BROKERS: Authority — Agreement to Furnish Abstract. Naked 3 authority “to sell” land carries no implied authority to bind the owner to furnish an abstract of title.</p> <p>BROKERS: Authority — Extent of Authority — Duty to Take Notice. 4 One dealing- with a broker for the purchase of lands must take notice of the extent of the authority of the broker.</p> <p>ESTOPPEL: Equitable Estoppel — Mending Hold in Litigation — Non-5 Communicated Reasons. A party may assign any reason, howsoever frivolous or unfounded, for repudiating a contract, and, after action is commenced, may mend his hold and assign a good reason, when the frivolous and unfounded reason was never communicated to the one commencing the suit, and in no wise influenced his action. So held where the original reasons assigned were stated to one’s own agent and were never communicated to the other party.</p> <p>BROKERS: Authority — Unauthorized Contract — Ratification. Evi6 denee reviewed and held insufficient to show a ratification of an unauthorized contract of sale.</p> <p>BROKERS: Pleading — Issue as to Agent’s Authority. The issue as 7 to the authority of a broker to enter into the contract in question is necessarily raised by a petition alleging that the contract was entered into pursuant to authority, followed by an answer by defendant denying such allegation.</p>

<p>DEEDS: Validity — Fraud and Duress. Evidence reviewed, and held to show that certain preposterous and senseless threats, made to a weak and ignorant grantor by a grantee who had been grantor’s counselor for years, was the moving cause for the execution of the deed of gift, and invalidated the same.</p>

<p>CRIMINAL LAW: Argument of Counsel — Inflammatory Appeals— 1 New Trial. Enlarging in argument on the enormity of the crime charged and its dire effect on posterity, and arguing that, therefore, an acquittal should not be lightly brought about, do not constitute such an appeal as will, of itself, entitle defendant to a new trial, especially in view of the fact .that the lower court refused a new trial on such ground.</p> <p>CRIMINAL LAW: Argument of Counsel — Presumption. It will be 2 presumed, nothing appearing to the contrary, that argument by a public prosecutor was a legitimate response to an argument for the defendant.</p> <p>SEDUCTION: Chaste Character — Conduct of Prosecutrix with DeS fendant. The jury, in passing on the question whether prosecutrix was of chaste character, must not be deprived of the right to consider the conduct of prosecutrix with defendant, (a) even though defendant denies all intercourse with prosecutrix, and (b) even though tho evidence of misconduct between prosecutrix and defendant is meager and weak and is strongly disproved by the testimony for the State.</p> <p>SEDUCTION: Error — Estoppel by Inconsistence in Testimony. A 4 defendant who denies in toto, in a seduction charge, that he ever had sexual intercourse with the prosecutrix, is not thereby estopped to demand that the jury be given the right to consider, in so far as it militates in his favor, what prosecutrix says did take place in the way of -intercourse between them.</p> <p>SEDUCTION: Chaste Character — Instructions—Degree of Proof. 5 Instructions reviewed, and held not vulnerable to the objection that defendant must conclusively establish the unchastity of the prosecutrix in a seduction charge.</p> <p>CRIMINAL LAW: Instructions — Correct, Though Inexplicit. If an 6 instruction is correct as given, though not as explicit as desired, request must be made for the more explicit instruction, in order to predicate error.</p>

— W. S. Ayres, Judge. Habeas corpus proceedings to secure the release of plaintiff from the custody of defendant sheriff and an agent of the state of Colorado, who are holding him under an executive order issued by the governor of this state upon requisition of the governor of Colorado. The trial court denied the application, and plaintiff appeals.

— George Jepson, Judge. Original proceeding in certiorari to test the validity of the judgment of the district court in committing the plaintiff therein to the penitentiary for one year at hard labor, upon proof of the violation of the decree heretofore rendered, enjoining plaintiff from maintaining a liquor nuisance.

<p>APPEAL AND ERROR: Review — Scope and Extent — Theory in 1 Lower Court. If a cause has been treated in the lower court as one in equity, it will be so reviewed on appeal.</p> <p>MUNICIPAL CORPORATIONS: Severance of Territory — Review 2 of Authorities. Authorities governing severance of territory reviewed.</p> <p>MUNICIPAL CORPORATIONS: Severance of Territory — Evidence. 3 Evidence reviewed, and held sufficient to sustain the refusal of the trial court to sever territory.</p>

— W. N. Treichler, Judge. Action for personal injuries. Verdict and judgment for the plaintiff in the court below. Defendant appeals.

— F. M. Powers, Judge. Action in which guardian claims exemption to property sold by her as guardian. Opinion states the facts. Judgment below

The petitioner was indicted for incest. He was tried and convicted, and on Ms motion obtained a new trial. He was tried again, and the jury disagreed. It was discharged, and the defendant, petitioner here, held for further trial. He has not yet been tried. He brings this application to test the legality of certain proceedings had during the two trials to which he has’been subjected.

<p>ADVERSE POSSESSION: Nature and Requisites — Color of Title— 1 Claim of Right — Overhanging Eaves. The fact that a strip of land was for more than 10 years overhung by the eaves of a bay window works no title by adverse possession, in the absence of (a) color of title, or (b) claim of right to possession. (See. 3004, Code, 1897.)</p> <p>PRINCIPLE. APPLIED: A lot was 168 feet 5 inches long. Pursuant to divorce decree, the wife, without reservation of a/ny hind, conveyed to the husband the north 82 feet 6 inches of the lot, and the husband, in like manner, conveyed to the wife the south 85 feet 11 inches. The eaves of the bay window on the house situated on the wife’s portion of the lot extended, but without her or her husband’s knowledge, 9 inches over the husband’s south line. Three years later, the husband sold his portion of the lot, and his grantee, 11 years later, erected a building thereon, and in so doing cut off this 9-inch projection of the eaves of the bay window. During these 14 years, the wife’s house remained as from tl;e. beginning, the . wife at no time making any claim to any of the land which she had deeded to the husband (except in so far as such claim might be inferred from her act in maintaining her bay window), nor did she at any time occupy or use the ground overhung by the said eaves. If she was entertaining during all this time any claim to this overhung ground because the eaves of her house overhung it, neither the husband nor his grantee knew of such claim. Held, title in the wife to this overhung strip by adverse possession must wholly fail, because (a) she had no color of title and (b) she had made no claim of right to the possession of the land.</p> <p>ADVERSE POSSESSION: Evidence — “Use”—Notice of Adverse 2 Claim. Adverse possession of real estate must be established (a) by evidence distinct from and independent of the use, and (b) by evidence that the party against whom the claim is made had express notice thereof. (Sec. 3004, Code, 1897.)</p> <p>PRINCIPLE APPLIED: See No. 1.</p> <p>BOUNDARIES: 'Acquiescence — Nonapplicability of Doctrine. The 3 fact that for more than 10 years the eaves of a bay window extended some inches over an adjoining lot without the knowledge of either lot owner that they so extended, and consequently without any notice that such extension was under a claim of right, excludes all application of the doctrine of boundary lines by acquiescence.</p> <p>PRINCIPLE APPLIED: See No. 1.</p> <p>DIVORCE: Decree — Non-Record Stipulation — Effect. An unques4 tioned decree in divorce proceedings, adjusting the property rights of the parties, followed by conveyances by the parties in .compliance with the decree, supplants and merges all non-recorded stipulations of the parties with reference to property rights.</p> <p>NEW TRIAL: Newly Discovered Evidence — Non-Change in Record 5 Eacts. New trial will not be granted because of the discovery of an original instrument which in no wise changes the secondary evidence of its contents already appearing in the record. -</p>

<p>INSURANCE: Accident Insurance — Action—Pleading—Sufficiency. 1 It is suggested that, in an aetion on an accident policy of insurance, the pleading is sufficient if it alleges generally: (a) the existence of the policy; (b) that decedent met his death in a manner covered by the policy; and (c) that all conditions of the policy had been complied with. (Section 3626, Code, 1897.)</p> <p>PLEADING: Construction — Ultimate Fact Allegation Controls Evi2 dentiary Matter — Accident Insurance. A pleading, the proper allegations of which show, on its face, a good cause of action, is not demurrable because exhibits, voluntarily and unnecessarily attached and made a part thereof, tend, in an evidentiary way, to show that said allegations of the petition proper are untrue. In other words, allegations of proper ultimate facts control evidentiary matter unnecessarily attached to and made a part of the petition.</p> <p>PRINCIPLE APPLIED: The holder of an accident insurance policy died as the result of taking poison. In an action on the policy, the petition alleged:</p> <p>1. That said poison was accidentally taken.</p> <p>2. That said poison was not taken voluntarily or involuntarily.</p> <p>3. That said taking was the result of an accident, as provided in said policy and the articles of incorporation and by-laws.</p> <p>The pleader also attached, unnecessarily (Section 3626, Code, 1897), as exhibits and as part of the petition, the following: (1) Articles of incorporation and by-laws; (2) a coroner’s certificate, and another by a friend, that deceased died from accidental poisoning; (3) proofs of death, containing statements and certificates as to the cause of death, by those present and who attended deceased, and, inter alia, reciting that deceased complained of pain in his stomach, went to a doctor, returned, complained of pain in his legs, and expressed wonder as to what the doctor had given him, and soon went into convulsions and died. Prom these exhibits it appeared that the attending physician certified to his opinion that the “injury itself, independent of all other causes, produced the death,’’ and that, the taking of the poison was not voluntary; also, that there were no external signs of injury on the body.</p> <p>From the articles of incorporation and by-laws, it appeared that liability attached for death resulting "from bodily injury effected solely by external, violent and accidental means, and without intervening cause;” but did not attach (a) for death "resulting from the voluntary or involuntary taking of poison,” or (b) if the occasion of the accident be bodily infirmity, or (c) if the occasion of the accident be medical treatment.</p> <p>Defendant demurred, because the petition showed on its face: (a) that death was not caused by accidental means; (b) that death was caused by a voluntary or involuntary taking of poison; (c) that death was caused by an accident resulting from bodily infirmity; and (d) that death was caused by an accident resulting from medical treatment. Held that the admission by the demurrer of the truth of the ultimate allegations of fact of the petition was not overcome by the evidentiary matters appearing in the exhibits; that such admission rendered said evidentiary matters inoperative.</p> <p>INSURANCE: Accident Insurance — Exemptions—"Voluntary or 3 Involuntary Taking of Poison.” An exemption, in an accident policy of insurance, of liability for death "resulting from the voluntary or involuntary taking of poison,” manifestly contemplates liability for some deaths occasioned by poison; but whether an aceidental taking of poison is a "voluntary or involuntary taking of poison,” within the meaning of the above exemption clause, quaere.</p>

<p>CRIMINAL LAW: Instructions — Conflicting Instructions — Embez1 zlement — Elements, Reversal must follow tbe giving of instructions announcing both correct and incorrect rules under -which to arrive at a verdict, with consequent unsolvable uncertainty as to which rule the jury followed.</p> <p>PRINCIPLE APPLIED: The court" in one paragraph correctly-told the jury that one charged with embezzlement' could not be convicted in the absence of proof of a fraudulent intent. In another paragraph, the jury was told (a) that it could convict if defendant was short in his accounts, (b) that the owner had demanded the return of the money, and (c) that defendant had not returned or accounted for the money.' Held, the two instructions were fatally conflicting, and reversal must follow.</p> <p>APPEAL AND ERROR: Right of Review — Estoppel—Inviting 2 Action of Court. A litigant may not urge the court into a certain line of action and, after the court has complied, predicate error thereon. So held in an embezzlement case, wherein defendant requested instructions to the effect that, before conviction could be returned, certain named things must be proven; and the court having, in substance, complied with the request, defendant later alleged that-naid enumerated things were not sufficient.</p> <p>TRIAL: Instructions — Conflicting Instructions — Nonapplicability of 3 Doctrine. The doctrine of reversible error because of conflicting instructions is not applicable to an alleged conflict that gives complainant greater advantage than he asked or was entitled to.</p> <p>EMBEZZLEMENT: Conversion — Fraudulent Conversion of Money 4 Accounted For. An employee may be guilty of the embezzlement of money collected by him and promptly paid to the employer. More concretely, the employee is guilty of embezzlement by collecting money on a certain claim due the employer, by fraudulently concealing the fact that he has collected such particular, claim, and by remittance of said money to the employer for the purpose of concealing. a former embezzlement by him of the employer’s ' funds.</p> <p>EMBEZZLEMENT: Indictment — Aggregate or Limited Charge— 5 Scope of Evidence.</p> <p>(1) An indictment charging the aggregate of a series of embezzlements as one embezzlement — that is, so drawn as to treat a series of embezzlements during the same employment as one act of embezzlement — renders admissible, as substantive evidence, all such series of embezzlements.</p> <p>(2) An indictment so drawn as to limit the charge to one or more distinct acts of embezzlement occurring during the same employment, or to embezzlements occurring between specified dates of the employment, renders inadmissible, except as bearing on motive and intent, any acts of embezzlement beyond those specified, or not occurring within the specified time.</p> <p>TRIAL: Reception of Evidence — Limiting Purpose of Evidence— 6 When Request Must Be Made. Request to the court to limit the purpose for which particular evidence is received must be made ivhen the evidence is offered and received, and if not so made, may be ignored by the court. So held in an embezzlement case wherein evidence of embezzlements other than those charged was received, without limiting said evidence to the issue of motive or intent.</p> <p>EMBEZZLEMENT: Evidence — Office Books — Identification and 7 Proof Necessary to Admissibility. Entries in the books and records of an office in which defendant was employed are not admissible to prove an embezzlement charge against defendant, unless the State first proves (a) that they were in the handwriting of defendant, or (b) that they were made under the directions of defendant, or (c) that defendant had knowledge of the contents of entries made by persons other than himself.</p> <p>EVIDENCE: Best and Secondary — Complicated Books — Contents. 8 The rule requiring, the production of the best evidence is not violated by permitting a witness to testify that the contents of named exhibits do not appear in certain books of a complicated nature then before the court and jury.</p> <p>EMBEZZLEMENT: Instructions — Sufficiency. An instruction, in 9 keeping with defendant’s claim, that he could not be convicted if the money was taken or stolen by someone other than defendant, is not in reason to be-understood as saying that he must be convicted unless the shortage occurred in that manner, when the jury was also told that defendant could not be convicted “if the State has failed to prove beyond a reasonable doubt that defendant wrongfully embezzled and appropriated the money to his own use. ’ ’</p> <p>INDICTMENT AND INFORMATION: Duplicity — Embezzlement-10 “Money, Checks, and Drafts.” No duplicity is involved in an indictment, and no occasion for an election by the State in the trial thereof, which charges the embezzlement of “money, checks and drafts,” let alone where the indictment avers “that money, cheeks and drafts were received and collected,” and that there ■was an embezzlement of “the aforesaid sum of money.” (See. 5302, Code, 1897.)</p> <p>EMBEZZLEMENT: Evidence — Variance—Proving Less Than Al-ii leged — When Not Fatal. An indictment which alleges the embezzlement of “money, drafts and checks” may be validly supported by evidence of the embezzlement of money only, no variance resulting from proving less than is alleged when that which is jjroven is sufficient to sustain a conviction.</p> <p>EMBEZZLEMENT: Agents and Servants — “Cashier”—Sufficiency 12 of Proof — Election. An averment that defendant embezzled certain money “as cashier” is sufficiently proven by evidence that he was either cashier, servant or agent. Therefore, under such a charge no election to proceed against defendant “as servant” or ‘ ‘ as cashier ’ ’ may be required.</p> <p>EMBEZZLEMENT: Ownership of Property — Corporations De Facto. 13 Corporate capacity is sufficiently proven by evidence establishing a de faeto corporation — for instance that the alleged corporation was carrying on business as a railway and was acting as a corporation.</p>

<p>APPEAL AND ERROR: Review — Evidence—Unsupported Theory— 1 Pair Question of Pact. Conceding that the truth of < a theory is not established by circumstantial evidence which is just as consistent with the nonexistence of the truth of the theory as with its existence, yet it j¡s a principle applicable to cases of circumstantial evidence alone. It has, by its very terms, no application to a case wherein the theory presented has support in both direct and circumstantial evidence, and wherein is presented a fair question of fact, for the jury, not for the appellate court.</p> <p>EVIDENCE: Relevancy, Materiality and Competency — Necessity for 2 Foundation' — Theft by Employee. If offered testimony goes no farther than to.furnish a peg upon which the jury may hang a mere conjecture, it is fatally lacking in foundation.</p> <p>PRINCIPLE APPLIED: A Des Moines bank shipped to the Bank of Irwin a package supposed to contain $2,000. The package passed through the hands of several of the employees of the express company, but, when it reached the Bank of Irwin, it contained nothing but waste paper. The express company paid the loss to the Bank of Irwin and brought suit against the Des Moines bank, on the theory, that the money had been fraudulently taken from the package by some employee of the bank before it was delivered to the express company. The Des Moines bank defended on the theory that some employee of the express company abstracted the money. The express company (plaintiff) sought to show that, at the time it received the package, one Spencer was in the employ of the defendant bank, and was subsequently convicted of embezzling the funds of the bank. It was not shown that Spencer handled or had access to the package. Meld, the offered evidence was not admissible because of lack of proper foundation.</p> <p>EVIDENCE: Relevancy, Materiality and Competency — Condition of 3 Rifled Money Package. Any evidence that tends in any reasonable degree to establish the probability or improbability of a fact in issue, no matter how slight its weight may be, is relevant. So held in regard to the condition of a rifled money package.</p> <p>PRINCIPLE APPLIED: (Pacts additional to those under lío. 2.) The rifled package was not produced at the trial, having been lost, and it became material to show its condition when delivered to tlie Bank of Irwin. When delivered to the Bank of Irwin, the employee in charge tore off a corner of the envelope, inserted his finger and ripped down the end, discovering soft mucilage which adhered to his finger. After the theft was discovered, the package was, at different times, in possession of a special agent of the express company, officers of the Des Moines bank, and a bonding company. The special agent testified that, ..when he first saw the package, the paper under the seal „ of the envelope was smooth, clean, and with no appearance of having been tampered with. At one time the package was taken to Chicago, and later expressed back to Des Moines. The Bank of Irwin brought suit against the express company to recover the loss, and on the trial of that cause, some five months later, one of the attorneys for the bank carefully examined the package. At the instant trial, it was shown that the package was in substantially the same condition at the time of the trial of the Bank of Irwin v. Express Company, as it was when received by the Bank of Irwin, all the persons having possession thereof, after the theft was discovered, testifying in relation thereto. Held, it was error to refuse to permit the attorney in the instant trial to testify as to the condition of the package at the time he examined it. Held, also, the foundation for the testimony of the said attorney was sufficiently shown.</p> <p>EVIDENCE: Relevancy, Materiality and Competency — Condition of 4 Rifled Money Package — Foundation. The foundation for the introduction of relevant evidence in regard to the condition of an object or thing at the time in issue is sufficiently shown by evi- ■ dence that the condition of the said object or thing at the time witness acquired his knowledge, and at the time- in issue, was substantially the same. So held in regard to the condition of a rifled money package.</p> <p>PRINCIPLE APPLIED: See No. 3.</p> <p>APPEAL AND ERROR: Review — Excluding Question- — Sufficient 5 ^howing as to Evidence Sought. Counsel who has his question excluded must see to it that the record shows what evidence was sought to be elicited by the question. This may sufficiently appear (a) by the form of the question itself, or (b) by counsel’s statement as to what he expects to elicit. In instant case, held, the question sufficiently indicated the evidence sought.</p> <p>PRINCIPLE APPLIED: (See facts under Nos. 2 and 4.) The question asked the witness in instant ease was “Will you now describe to the jury the condition of the envelope as it appeared or when you examined it?’’</p> <p>Salinger, J¡, dissents as to the application made of the principle.</p>

<p>VENDOR AND PURCHASER: Rescission by Purchaser — Fraudulent 1 Representation — Non-reliance Thereon. Contracts of sale may not be rescinded by reason of vendor ;s false representation, when vendee made his own examination of the property and, by reason thereof and of other knowledge brought to his attention, he evidently did not rely on the representations made by vendor.</p> <p>VENDOR AND PURCHASER: Rescission by Purchaser — Fraudulent 2 Concealment — Duty to Speak. Concealing a fact material to a transaction, knowing that the other party is acting in the full belief that no such fact exists, and affirmatively encouraging such belief, is as much a fraud as if the existence of such fact were expressly denied, and entitles the one defrauded to rescind. So held where a vendor, who knew that vendee had examined the land and knew that vendee was acting in the belief that no serious danger existed from washing by the river, subsequently learned that the river was rapidly washing away the land, and did not communicate such fact to the vendee, and encouraged vendee to believe that the conditions remained the same as when vendee examined the land.</p> <p>VENDOR AND PURCHASER: Rescission by Purchaser — Defense— 3 Contracting in Recognition of Defects. Evidence reviewed, and held insufficient to show that the defects in the land, of which vendee complained in his action for rescission, were taken into consideration in fixing the purchase price.</p> <p>VENDOR AND' PURCHASER: Rescission by Purchaser — When 4 Vendee Entitled to Money Judgment. Prompt and justifiable rescission by a vendee entitles him to a money judgment against the vendor for the loss, when vendor has sold the property received to an innocent purchaser.</p>

— W. G-. Sears, Judge. Action at law to recover damages for wrongful levy of. attachment upon property exempt from execution. Yerdiet and judgment for plaintiff, and defendants appeal.

— D. M. Anderson, Judge. The defendant, having been indicted and convicted upon a charge of adultery, has appealed from the judgment rendered against him.

— Thomas L. Maxwell, Judge. Action at law to recover damages caused ‘by defendant’s failure to perform a written contract for exchange of land owned by defendant in Manitoba for other property owned by plaintiff in Colorado. There .was a verdict and judgment for the defendant, and plaintiff appeals.

<p>APPEAL AND ERROR: When Appeal Lies — Sale of Litigated Prop-1 erty — Purchase Price in Escrow. A properly perfected appeal from a judgment awarding defendant the rights of a pledgee may be maintained by plaintiff, even though it appears that plaintiff has sold his interest in the subject-matter of the litigation to an intervener, who has dismissed his appeal, when it appears that . part of the purchase price is in escrow awaiting the outcome of the appeal.</p> <p>APPEAL AND ERROR: Perfecting Appeal — Acceptance of Service 2 —Authority of Attorney. Notice of appeal is properly served on the attorney who appeared in the trial court. (Section 4114, Code Supplement, 1913.)</p> <p>APPEAL AND ERROR: When Appeal Lies — Reluctance of Appel3 lant to Maintain — Effect. A properly perfected appeal is in no wise affected by the fact that appellant appears to have taken the appeal with reluctance.</p> <p>ATTORNEY AND CLIENT: Authority of Attorney — Intervention— 4 Service of Pleading. Pleadings may very properly be served upon any attorney of record.</p> <p>APPEAL AND ERROR: Perfecting Appeal — Notice—Party Without 5 Interest. A party who has parted with all interest in the subject-matter of the litigation need not be served with notice of appeal.</p> <p>COURTS: Jurisdiction — Writs to Preserve Appellate Jurisdiction— 6Inherent Power of Court. The Supreme Court, and any judge thereof, aside from the Constitution (Article 5, Section 4) and aside from statute (Sections 4100, 4109, Code, 1897), has inherent power and a discretion, regulated by the balance of inconvenience or injury to the respective parties, to issue all writs and processes, • either commanding or restraining action, necessary for the exerpise and enforcement of the appellate jurisdiction of the court, and to preserve the status quo of the litigants, pending appeal.</p> <p>PRINCIPLE APPLIED: Plaintiff owned certain stocks in a motor car company, and an automobile. Defendant claimed to be a pledgee of the property, to secure advances made. An intervener claimed to have purchased the property of plaintiff. Decree was entered in favor of defendant, fixing the amount of his lien. Plaintiff and intervener appealed. Defendant started to foreclose his lien. On application to a judge of the Supreme Court, and on a showing that the property was of a highly fluctuating value, an order was entered, not only commanding defendant not to proceed with his foreclosure, but commanding defendant to surrender the property to the intervener, upon the making by intervener of a named deposit in money rvith the clerk to abide the outcome of the appeal. Held, the order was -within the jurisdiction of the court and judge, not only in so far as-it restrained action, but in so far as it commanded affirmative action.</p> <p>CONTRACTS: Action for Breach — Judgment—Merger of Contract 7 Rights. Contract rights are merged in the judgment obtained on the contract. Therefore, where a defendant secured a judgment that he was the pledgee of property, as security for advances made in a specified amount, held, no contract rights were impaired by the entry of an order, on appeal, commanding defendant to surrender the property to the owner on the owner’s making a deposit with the clerk to abide the outcome of the appeal.</p> <p>PRINCIPLE APPLIED: See No. 6.</p>

<p>CRIMINAL LAW: New Trial — Passion and Prejudice — Affidavit— 1 Effect. An affidavit, in support of allegations in a motion for a new trial, that the verdict is the result of passion and prejudice, is futile, and unknown to our practice.</p> <p>CRIMINAL LAW: Appeal — Absence of Objections — Effect. Defend-2 ant in a criminal case has no right, in the trial of the case, to allow matters and things to occur without objection or exception of any kind, and then, on appeal, predicate error thereon and demand reversal. Defendant is not above complying with the rules of the court, even though Section 5462, Code, 1897, does command the appellate court to review the cause without regard to technical defects. So held where instructions were not excepted to, and where evidence was received without objection.</p> <p>CRIMINAL LAW: Appeal — When Verdict Not Conclusive. Criminal 3 causes on appeal will neither be tried de novo nor will a verdict be allowed to stand which is against the olear weight of the evidence.</p> <p>CONSPIRACY: Evidence — Sufficiency. Evidence reviewed, and 4 held that the overt acts relied on by the State were insufficient to sustain a verdict of guilt of conspiracy to burn property with intent to injure insurers.</p> <p>CRIMINAL LAW: Motive — Failure of Proof — Effect. Principle ree5 ognized that proof of a motive is not necessarily essential to a valid verdict of guilt.</p> <p>CRIMINAL LAW: Verdict — Verdict on Suspicion. Principle reeog6 nized that evidence which gives rise to only a suspicion of guilt will not sustain a verdict.</p> <p>CRIMINAL LAW: Verdict — Sufficiency of Evidence — Pact Holding 7 in Appeal of Codefendant — Effect. A ruling, on an appeal by one defendant, that the evidence is sufficient to sustain a conviction, does not rule the court on another and subsequent appeal by another defendant in the same indictment, unless at least both records are before the court and are, in effect, the same.</p>

Appeal, from Mahaska District Court. — Henry Silwold, Judge. Suit in equity, to establish and enforce a trust. Defendant, individually and as trustee, filed a motion to strike, and for a more specific statement, and also a motion to strike, and separate causes of action.

— Hubert Utterback, Judge. The plaintiff alleged in his petition that the defendants constituted the' executive council, W. S. Allen being secretary of state; that, at the primary election on June 5, 1916, the electors voted to nominate four candidates for the office of judge of the Supreme Court; that the returns disclosed that the plaintiff received 14 votes more than any person voted for as candidate, other than H. E. Deemer, W. D. Evans and Wm.

— F. M. Hunter, Judge. Action in equity for the appointment of a receiver for a certain stock of goods and for other relief. There was a decree as prayed, and the defendants, except W. W. Israel, appeal. The material facts are stated in the opinion.

— David Mould, Judge. Action in equity in wbicb plaintiff seeks to establish that certain money and a certain note which are a part of the proceeds of the sale of certain real estate, which money and note are held by the defendant bank, belong to her, and not to the defendant Leonard Lamkin. There was a decree for plaintiff, and the defendant Leonard Lamkin appeals.

— Lawrence DeGraee, Judge. Action at law to recover upon an alleged contract to equip and install a smokeless furnace in the factory of defendant. There was a trial to a jury and a verdict and judgment for plaintiff, and defendant appeals.

— B. P. Cummings, Judge. Action to recover damages for personal injuries. There was a trial to a jury, and a verdict and judgment in favor of plaintiff for $1,000, from which defendant appeals.

— D. M. Anderson, Judge. Action upon a life insurance certificate issued by the defendant to Eva M. Retherford, now deceased, who was the wife of plaintiff. Plaintiff was a beneficiary named in the certificate. There was a trial to a jury. At the conclusion of the evidence, the court sustained the defendant’s motion for a directed verdict in its favor. Judgment was rendered in favor of defendant, and plaintiff appeals.

— C. W. Vermilion, Judge. Action at law to recover damages because of defendant’s failure to perform a contract for the conveyance of land. Trial to a jury. When the evidence had been taken on part of plaintiff, the trial court, on motion, directed a verdict for the defendant. Plaintiff appeals. The essential facts are stated in the opinion.

— W. S. Ayres, Judge. This is an action in equity for the reformation of a lease to real estate, and it is asked that the first of two leases be canceled and decreed to be merged in the second lease. The case was dismissed as to defendants Kirchner and Glick, who, it appeared at the time of the trial, had no interest in the case. The trial court found for the plaintiff, and the defendant F. A. Rife appeals.

— James P. Hewitt, Judge. Action at law brought by appellant to recover the value of'one half of what plaintiff'calls a wall in common, owned by and constructed at the cost of the appellant and used by appellee, and to recover for the-value of nine inches of ground, being one half of the ground upon which said wall is located.

— R. M. Wright, Judge. This is an appeal from special assessments imposed upon a lot of the plaintiff’s for paving, curbing and guttering the street upon which said lot abuts, known as Willson Avenue. The assessment for paving was in the sum of $200.95, and for curbing and gutter, $41.93. Separate appeals were taken from each assessment, but the two were consolidated and tried as one case in the district court.

— F. M. Hunter, Judge. Action upon a promissory note in the sum of $200, -executed by defendants to Theo. A. Craig, and by Craig endorsed to plaintiff. The making of the note is admitted, but defendants claim that it was and is void and of no effect, because ■ founded, in part at least, upon an illegal and immoral consideration, in that it was based upon a promise by plaintiff to secure a divorce from her husband within a fixed time.

— John F. Talbott, Judge. Action in equity. Plaintiff, about December 11th, 1913, requested defendants to compensate plaintiff for damages, as plaintiff alleges, because of defendants’ appropriation for railroad purposes, in the transportation of their coal, of a right of way through lands of which plaintiff claimed to be the owner. .

— M. E. Hutchison, Judge. This was a contest over tlie admission to probate of the alleged will of Oren K, Eveleth. Contestants objected to the probate upon two grounds: First, the alleged testamentary incapacity of the deceased; and, second, undue influence of Emery J. Eveleth, the proponent and sole beneficiary.

— Wm. Hutchinson, Judge. Action to recover the amount paid by plaintiff for a silo which, he purchased from defendant. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— J. L. Kamrar, Judge. Action at law by plaintiff to recover $164.78 upon contract for 226'bushels of corn at the agreed price of 73 cents per bushel, delivered by plaintiff, as he claims, to the defendants. Trial to a jury, and, at the conclusion of the evidence, the court directed a verdict for the plaintiff. Defendants appeal.