Volume 178 — Iowa Reports

— F. O. Ellison, Judge. 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 ease. From the award and judgment in the district court, the defendant has appealed.

— George W. Dunham, Judge. Action at law, to recover damages for injuries sustained by plaintiff, in a collision with a street car belonging to the Waterloo, Cedar Falls & Northern Railway Company, while being operated upon one of the streets of defendant city. The city was made a party, because it is claimed that the accident grew out of, or was caused, in part at least, by a defect in one of its streets, which it negligently failed to repair.

— F. M. Powers, Judge. Action in equity for divorce, on the ground of cruel and inhuman treatment. There was a decree for plaintiff, and defendant appeals.

<p>1 ACTIONS: Dismissal and Nonsuit — Belated Filing of Petition— Waiver. Failure to file petition at time stated in the original notice entitles defendant to a dismissal.</p> <p>2 APPEARANCE: Special Appearance — Answering Over — Effect. Error in improperly overruling a motion to dismiss, made on special appearance, is waived by answering over and going to trial on the merits.</p> <p>3 INTOXICATING LIQUORS: Nuisance — Action to Abate — Pending Search Warrant Proceeding — Abatement Plea. Search warrant proceedings against certain alleged intoxicating liquors, pending on appeal in the district court after partial condemnation by the justice court, may not be pleaded in abatement of an action to enjoin a liquor nuisance on the premises on which the liquors were seized, even though the search warrant proceedings are prior in point of time.</p> <p>4 INTOXICATING LIQUORS: Nuisance — Action to Abate — Evidence. Evidence reviewed and held sufficient to support an order of abatement of an intoxicating liquor nuisance.</p> <p>5 INTOXICATING LIQUORS: Nuisance — Action to Abate — Belated Repentance. Defendant's plea of voluntary abatement of a nuisance may be disregarded when, in view of the belated repentance, the court feels that an order of abatement will be conducive to defendant's good conduct.</p> <p>6 INTOXICATING LIQUORS: Nuisance — Action to Abate — Costs. Improper to tax costs to a defendant, in an action to enjoin an intoxicating liquor nuisance, y;ho is not shown to have had knowledge of the illegal use of the property.</p> <p>7 INTOXICATING LIQUORS: Nuisance — Action to Abate — Knowledge of Owner. An order of abatement of an intoxicating liquor nuisance, and for tho closing of tlie building, is proper, though the owner of the premises had no knowledge of the illegal use to which the building was being put.</p>

— J. L. Kamrar, Judge.. This is an action for personal injuries, caused by collision- with and overturning of plaintiff’s buggy by defendant’s automobile. There was a trial to a jury, which resulted in a general verdict for the defendant. Two special interrogatories were answered by the jury that plaintiff was guilty of contributory negligence, and that the accident was caused by negligence on the part of both plaintiff and defendant.

—William Theophilus, Judge. Plaintipp alleges, substantially, that he and defendant agreed to enter into a written lease for a theater building; that plaintiff paid defendant $298 on the strength of the agreement; that defendant refused to make the lease and plaintiff never obtained possession of the building, and defendant refuses to pay back the money paid. Trial to a jury. Defendant offered no evidence. There was a verdict for plaintiff for $298, with interest.

— W. G. Sears, Judge. This is an action of mandamus against the sheriff of Woodbury County to compel the issuance of a sheriff’s deed to certain real estate, in pursuance of an execution sale thereof. The trial court dismissed the petition, and the plaintiff appeals.

— W. S. Hamilton, Judge. The promissory note was given for $5,900 as part of. the purchase price of the land, covered by the mortgage executed by the maker to secure its payment, and is in words following: ‘ ‘ Five years after date I promise to pay to Henry Renard or order, Five Thousand Nine Hundred Dollars, at The State Central Savings Bank, Keokuk, Iowa, for value received, with interest at the rate of 5 per cent per annum after date until: paid, payable annually; and if…

— Thomas L. Maxwell, Judge. Dependant was convicted of a misdemeanor, in that he refused to answer a certain question propounded to him by the census enumerator, touching incumbrance upon his land. Convicted in the court below and appeals.

— Francis M. Hunter, Judge. G. N. Wailes died September 25, 3913, leaving eight children him surviving, and three children of a deceased son, William. After the payment of all debts, funeral expenses and the costs of administration, there remained for distribution $4,445.05, and there were 80 acres of land in Republic County, Kansas.

— H. K. Evans, Judge. Action for damages for personal injuries. There was a verdict for the’ plaintiff, and the defendant appeals.—

— Thomas L. Maxwell, Judge. The petition states .a cause of action in replevin, alleging ownership of a span of mules; that the cause of deten: tion by defendant Hale was that he claimed to have sold the mules to collect an indebtedness of $30; and that defendant Dugan claimed to have bought of Piale. Prayer was for, possession or value, as is usual in such cases.

— D. M. Anderson, Judge. Conviction for tlie misdemeanor of practicing osteopathy without first having obtained and filed with the county recorder a certificate of the state board of medical examiners authorizing defendant to practice.

— John F. Talbott, Judge. Action in equity to subject certain lands to the payment of a judgment recovered by plaintiff against the defendant Charles Wolford. There was a decree granting the relief prayed for in part only, and plaintiff appeals.

— W. G. Sears, Judge. Action for damages resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals.—

— David Mould, Judge. J. A. Blondel is owner of tbe SW% of See. 20 in Willow Township of Woodbury County, except the east 2 acres, and also the SE % and the E y¡ SW % of Sec. 19. One Spooner owns the W % SW *4 of Sec. 19; and Medbury, E. and A. O. King, the land immediately south of said sections.

— W. G. Sears, Judge. Action for the value of certain corn, covered by two chattel mortgages executed by F. A. Godsey and wife to plaintiff and sold by said Godsey to defendants, resulted in judgment as prayed. The defendants appeal.

— 0. W. Vermilion, Judge. Appeal from the action of the court in a personal injury case in refusing to require the jury to retire and reconsider the verdict as to a materia] fact, after the verdict had been returned under a stipulation for a sealed verdict, it appearing that, by consent of the parties, the jury had been- permitted to seal their verdict and separate before the verdict was opened and read. Opinion states the facts.

— H. Bank. Jr., Judge. A demurrer to the petition was overruled, and, as defendants elected to stand on the ruling, decree was entered as prayed. Defendants appéal.

<p>Appeal from Dallas District Court. — J. H. Applegate, Judge.</p> <p>Action in equity to affirm an attempted rescission of contract for the sale of land, and to recover property, or its value, delivered to the vendor on his contract. Decree in the .court below dismissing plaintiff’s petition. Plaintiff appeals.</p>

- — J. H. Applegate, Judge. Action to declare the organization of a consolidated independent school district illegal, and to enjoin its officers from exercising any jurisdiction over certain territory alleged to belong to the plaintiff district and incorporated in the consolidated independent district. The court below dismissed plaintiff’s petition.

— D. M. Anderson, Judge. On February 8, 1913, Politha Palmer died intestate, and on the 28th day of the same month, J. E. McIntosh was appointed administrator of her estate. He filed his report as such, July 18, 1914, showing that, after the payment of all debts and expenses of administration, he had $848.63 on hand for distribution.

<p>Appeal from Warren District Court. — W. H. Fahey, Judge.</p> <p>Action at law for damages for injury to plaintiff’s automobile. The injury resulted from an accident upon a county bridge, alleged by the plaintiff to have been defective in its construction and maintenance. There was a verdict for the plaintiff, and the defendant has appealed.</p>

<p>Appeal from Guthrie District Court.- — Lorin N. Hays, Judge.</p> <p>Action upon a promissory note, purporting to- have been made by defendants, Hardin and Purdy. Defendant Plardin made no defense, but Ms codefendant, Purdy, denied Ms signature, or that be authorized anyone to sign the same for' him.' ’ This denial was not under oath. On the issues thus joined, the cause was tried to a jury, resulting in a verdict and judgment for plaintiff for the amount of the note, and defendant Purdy alone appeals.</p>

— AY. AY. Cardell, Judge. Action to recover damages for defendant’s wrongful discharge of plaintiff from his (defendant’s) employ. The defendant admitted the discharge, but pleaded that such discharge was.for due cause. Upon the issues joined, the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

— L. N. Hays, Judge. Action for damages for negligence in causing, or permitting, the obstruction of a street, whereby the plaintiff was thrown from a motorcycle and severely injured. There was a trial to a jury, and a verdict and judgment for plaintiff. The defendant has appealed.

— W. D. Boies, Judge. Action at law to recover damages for personal injury-alleged to have been caused by defendant’s negligence. Verdict and judgment for''plaintiff, and defendant appeals.—

— J. H. Applegate, Judge. The plaintiffs above named, each holding one or more alleged promissory notes made by Samuel Rule in his lifetime, filed their several claims against his estate. The heirs of the deceased were permitted to appear in the hearing and resist the allowance. In each instance the claim was allowed as prayed, and defendants appeal.

— -H. K. Evans, Judge. Action in equity, to set aside and hold for naught a certain ordinance granted by the city of Osceola to the other defendants, to maintain a telephone system within the city of Osceola, and to use the streets, as far as necessary*, to effectuate that purpose. Opinion states the facts. Decree for the defendant in the court below. Plaintiff appeals.

— L. N. Hays, Judge. Action at law to recover damages on account of an alleged malicious prosecution. The trial court directed a verdict for defendants, and plaintiff appeals.

<p>Appeal from Guthrie District Court. — J. H. Applegate, Judge.</p> <p>Suit in equity to quiet plaintiff’s title to land. There was a decree as prayed, and defendants appeal.</p>

<p>Appeal from Muscatine District Court. — A. P. Barker, Judge.</p> <p>This is an appeal by defendant from an order granting plaintiff a new trial.</p>

— W. II. Fai-iey, Judge. Action at law to recover $1,000 on a land contract, which, as plaintiff contends, was stipulated, damages for loss, expense, inconvenience, etc., occasioned by the failure of appellant to perform his part of the contract. There was a trial to the court, without a jury, and judgment for plaintiff for the amount claimed, with interest. Defendant appeals.—

Appeal frmn Madison District Court. — W. H. Fahey, Judge. This is an action on a note, given by defendants Siedel for the second installment of rent for the year from March 1, 1913, to March 1, 1914. Plaintiff had possession of the farm land by virtue of a contract entered into by and between plaintiff and one John Joeckel. Plaintiff did not comply with the terms of that contract,' and failed to make payment due on July 1, 1913, and subsequent payments.

— W. W. Cardell, Judge. Action to recover damages. The petition was in two counts, the first asking to recover for a breach of warranty, and the second count for fraud and false representations committed by defendant in inducing plaintiff to enter into the contract. There was a trial to a jury, and a verdict for plaintiff for $500, upon which judgment was entered, and the defendant appeals.

— W. W. Cardell, Judge. The issues in this case are similar to those in the case of C. T. Kirkwood against this same defendant, decided at the present sitting, except that, in the instant ease, there was no second contract to build a house. In this case there was a trial to a jury, and a verdict and judgment for plaintiff. The defendant appeals.

— W. W. Cardell, Judge. Action by plaintiff to recover damages for breach of a warranty in a contract for sale of a lot. The issues, or some of them, are similar to those against this defendant decided at the present sitting. Plaintiff alleged that she had paid the full purchase price of said lot, $450, and that the street car line warranted in the contract had never been constructed, and that, by reason thereof, she was damaged in the sum of $300.

— W. D. Boies, Judge. Action in equity to enjoin an alleged liquor nuisance. There was a trial to the court, and plaintiff’s petition was dismissed. Plaintiff appeals.

— W. D. Boies, Judge. This is an appeal from the action of the district court in sustaining defendants’ demurrer to plaintiffs’ petition, filed in a drainage proceeding. The plaintiffs appeal.

— C. W. Vermilion, Judge. Action for slander. At the close of the plaintiff’s evidence, there was a directed verdict for the defendant, and judgment entered thereon. Plaintiff has appealed.

— IT. E. Pry, Judge. Dependant was indicted for breaking and entering with intent to commit larceny, tried to a jury, and convicted. He appeals.

— II. Bank, Jr., Judge. This case involves the homestead right in a certain two-story brick building. On the death of the owner, the widow elected to take her homestead right in lieu of her distributive share. The question here is whether a portion of this building was in fact a homestead, and passed to her under ele'ction. The opinion states the facts. Decree below established a homestead right in the entire building in favor of the defendant, the widow.

— W. S. Ayres, Judge. Action to recover damages claimed to have resulted to the estate of which plaintiff is administratrix, occasioned by the death of the deceased, caused or brought about by the negligence of the defendant. The opinion states the issues and the facts. Verdict and judgment for the plaintiff below. Defendant appeals.

<p>1 TENANCY IN COMMON: Rights of Co-Tenants — Ouster—Deed to Entire Premises — Adverse Possession. The delivery by one co-tenant to a stranger, and the recording of an unqualified warranty deed of the entire premises held in common, followed by possession in the grantee, under the good-faith belief that he is the absolute owner, works a complete ouster of all other co-tenants of the grantor, and an adverse possession in grantee, which, if continued openly and without interruption for ten years, bars the title of the ousted co-tenants.</p> <p>PRINCIPLE APPLIED: In 1875, upon the death of their father, eight brothers and sisters inherited the land in question. One, a half-sister to the others, had, for many years, been wholly separated from all other members of the family, and her residence was unknown to any of them. She was equally without knowledge of the residence of her father and seven brothers and sisters. This absent sister was overlooked in settling the estate, there being, however, no personal property. In 1880, the seven children agreed that, if they found the other sister, certain of them would, in stated sums, raise $200 for her as her share in the land, and at this' time (1880), and in 1883, conveyances were so made that a brother Frank owned all the land except the absent sister’s share. The absent sister was found in Canada, in 1886, eleven years after the father died, and she was then informed of the land left by her father. Some $80 was sent to her by two of the heirs, as payment on the $200. She accepted it without comment. She was told then that the land had been convoyed to Frank. In 1891, Frank, by absolute warranty deed, which was at once recorded, conveyed the land to one Dirks, who went into immediate possession and always thereafter remained in possession, and at all times in good faith believed he was the absolute owner; until, after the lapse of more than 20 years from the date of the deed from Frank, the absent sister sought, by partition, to recover her share in the land. For the first time, Dirks then learned of this absent sister. Held, the conveyance by Frank to Dirks was an-ouster of his co-tenant, the absent sister, and the possession by Dirks was adverse, and, as it had continued openly and without interruption, for more than 10 years, the title of the sister was extinguished.</p> <p>2 LIMITATION OF ACTIONS: Real Property — Acts of Ouster by Co-Tenants — Adverse Possession. A eo-tenant may, by his acts of entry or possession of the property held in common, with the express or implied knowledge of the other co-tenants, so declare his intentions to exclude his co-tenants from all interest in the property as to work an ouster of such other co-tenants and start the statute of limitations against them. So held where one co-tenant absolutely sold the entire premises.</p> <p>PRINCIPLE .APPLIED: See No. 1.</p> <p>3 ADVERSE POSSESSION: Hostile Character of Possession — Extent of Claim — Presumption. One entering into possession of land' is presumed to do so under a claim as broad as the provisions of the deed under which he claims title. So held where grantee took possession under an absolute deed from a co-tenant, supposing the grantor was the absolute owner.</p> <p>PRINCIPLE APPLIED': See No. 1.</p>

. Appeal from Black Hawk District Court. — Charles W. Mullan, Judge. Action to recover a commission for sale of real estate. Verdict and judgment for the plaintiff. Defendant appeals.—

— Milo P. Smith, Judge This is an action in equity, to establish a boundary line between the property of the plaintiff and the defendant. Opinion states the facts. Decree for the plaintiff in the court below.

<p>Appeal from Johnson District Court. — R. P. Howell, Judge.</p> <p>Action to quiet title. Opinion states the facts. Decree below dismissing plaintiffs’ petition.</p>

— William S. Ayres, Judge. Action on an account.- The defendant pleaded overcharges..and failure to allow discounts, by way of a set-off. The verdict was for plaintiff for much less than claimed, and from judgment thereon, it appeals.

— R. P. PIowell, Judge. Action for indemnity on an insurance policy resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals.

<p>1 INSURANCE: Life Insurance — Automatic Suspension — Waiver. A provision in a policy of life insurance automatically suspending tlie policy for the nonpayment of dues or assessments by a stated time, is, in the absence of fraud, waived by the unconditional receipt and retention of such payments by the company, after the time stipulated, with knowledge, express or implied, that the policyholder was, in good faith, making' such payment for the solo, purpose of preserving the life of his policy.</p> <p>PRINCIPLE APPLIED: A fraternal beneficiary certificate of insurance provided that failure to pay assessments and d^ies on or before the last of each month ipso faeto suspended the insured and terminated the insurance. The insured^ on February 16th, when he was in good health, drew and forwarded his cheek in payment of his February assessment. For some reason 'not disclosed, the check did not reach the local lodge officials until March 5th. In the meantime, and on February 22d, the insured was taken sick. The payment received on March 5th was accepted by the lodge officials, and they sent the insured a receipt for the February dues and, by an endorsement on the receipt, directed him ivhere to send, assessments. The said officials did not then know that the insured .was ill, but made no inquiries of any kind. The March and April assessments were paid strictly on time, and were accepted unconditionally. No fraud was practiced by the insured. Insured died Ui April, following, of the sickness contracted on February 22d. Held, there was a double waiver of the, right to forfeit the policy, (1) by the unconditional acceptance and retention of the payment received on March 5th, and (2) by the like subsequent acceptance and retention of the payments for March and April.</p> <p>2 CONTRACTS: Forfeiture — Waiver. A -provision for the forfeiture of all rights under a contract, made for the distinct benefit of one of the parties thereto, may be waived by such party, even though he has carefully stipulated against such waiver. So held as to a provision automatically suspending a life insurance policy for the nonpayment of dues and assessments within a stipulated time.</p> <p>INSURANCE: Life Insurance — Automatic Suspension — Avoidance of Waiver. The waiver of forfeiture by the conduct of an insurance company in unconditionally receiving and retaining payments of assessments and dues, which were made after the time specifically required by the policy, without fraud on the part of the insured, is not obviated by the fact that the company, when it received the payment, cl-id not know that the insured was in ill health.</p> <p>PRINCIPLE APPLIED: See No. I.</p> <p>4 INSURANCE: Life Insurance — Forfeiture—Waiver of Former Forfeiture. An unconditional acceptance of an assessment on a policy of insurance waives all former known grounds of forfeiture.</p> <p>PRINCIPLE APPLIED: Roe No. 1.</p> <p>5 PRINCIPAL AND AGENT: The Relation — Stipulation Against Fact —Insurance. It is futile to attempt to stipulate that a certain person is not the agent of another, when in truth anil faol he is such agent. So held where a policy of insurance provided, in effect, that the officers of the local lodge should not be considered the agents of the parent lodge.</p>

<p>1 NEW TRIAL: Motion for — Sustaining Motion Generally — Effect. The overruling of a motion for the court to specify the grounds on which it sustained a motion for a new trial is, in effect, a ruling that it sustained the motion on all the grounds urged.</p> <p>2 NEW TRIAL: Grounds — Grounds Once Rejected on Appeal. A now trial may not bo granted on grounds once held on appeal in the-same case to be untenable.</p> <p>3 NEW TBIAL: Grounds — Erroneous Instructions Unquestioned by Exception. A new trial may not be granted by the trial court because of erroneous instructions to which no exceptions were taken before the same were read to the jury, and as to which there was no showing that such errors were mol discovered at the time of trial. (Sec. 3705-a, Code Supp., 1913.)</p> <p>4 VENDOB AND PURCHASER: Breach of Contract — Breach by Vendor — Measure of Damages. The measure of damages for breach by vendor of a contract to sell land is the difference between the contract price and the market value of the land (if it is more than such contract price), plus any amount paid by vendee on the purchase price.</p> <p>5 NEW TRIAL: Grounds — Blanket Assignments — Appeal and Error. A motion for a new trial on the blanket assignment “that the court erred in overruling objections to questions propounded by plaintiff and in sustaining those to questions asked by defendant,” demands scant attention, and is too indefinite for review on appeal.</p> <p>6 NEW TRIAL: Grounds — Proceeding Favorable to Movant. A new trial may not be granted because of action by the court and jury favorable to movant.</p> <p>7 NEW TRIAL: Grounds — Misconduct of Counsel — Admonition by Court — Effect. Misconduct of counsel in argument, especially counsel pro se, in going outside the record evidence, may justify the trial court in granting a new trial, even though, when the misconduct occurred, the trial court fully admonished the jury to wholly disregard the unwarranted statements.</p>

'Appeal from O’Brien District Court. — W. D. Boies, Judge. Action for damages for breach of oral guarantee of certain roofing material. There was a verdict and judgment for the plaintiff, and the defendant has appealed.

— John W. Anderson, Judge. From a conviction upon an indictment'charging him with conspiracy to do illegal acts injurious to the public morals, poliee and to the administration of public justice, the defendant appeals.

<p>Appeal from Story District Court. — R. M. Wrigi-it, Judge.</p> <p>The dispute is whether the allowance to the county attorney of 10 per cent of the fine' collected, which is authorized by Section 2429 of the Code, “in all actions in equity against persons charged with keeping a nuisance, and to abate the same, ’ ’ is also authorized where the abatement of the nuisance follows as an incident to a conviction for maintaining a nuisance. Appellant asserts that the statute is broad enough to fix'that percentage, though the abatement be not obtained in an action in equity; while the appellee contends that, except where the abatement is obtained in an action in equity, the percentage allowance is controlled by Code Section 3869, which, instead of 10 per cent, allows that much on all but the first $200 or fraction thereof recovered, and a smaller percentage on the excess above $200. The trial court held with the appellee.</p>

<p>1 FRAUD: Pleading — Variance. Allegations of the representations inducing a sale or exchange arc sufficiently met by proving representations having the same general meaning and effect. (See See. 3639, Code, 1807.)</p> <p>PRINCIPLE APPLIED: Plaintiff pleaded that the alleged false representation was “that the land was all very level plow land, all tillable.”</p> <p>The proof shows that the representation was “that the land was good hard’land” (meaning that it would not blow away); “that the land was all smooth steam plow land” (meaning that it could'be cultivated with a steam plow); “that it was all good level land steam plowed and all fit and subject to cultivation.”,</p> <p>Held, no variance.</p> <p>2 PLEADING: Issue, Proof and Variance — Affirmative Showing of Prejudice. Variances between allegation and proof aro immaterial, unless the complaining party affirmatively establishes (a) that he has been misled, and (b) in what particular manner he has been misled. (Sec. 3597, Code, 1897.)</p> <p>3 PLEADING: Amendments — Amendment Pending Motion for New Trial. An amendment to moot the proof is allowable as late as the pendency of a motion for a new trial, (Sees. 3600, 3760, Code, 1897.)</p> <p>4 PLEADING: Issue, Proof and Variance — Principal and Agent. Allogations that certain alleged false representations were made by the defendant may be met by proof that such representations were made by the defendant’s agent.</p> <p>5 PRATJD: Reliance on Representations — Evidence. Plaintiff, seeking to recover damages for false representations, may very properly testify to what defendant’s agent said to him, prior to the closing of the deal, relative to the defendant’s business, his financial responsibility, his high standing as a citizen, and to the fact that the agent’s information as to the character of the property had been acquired from defendant himself. All this has bearing (a) on plaintiff’s belief in the truth of the representations; (b) on his reliance on such representations; (c) on his right to so rely; and (d) on his ewre in so doing.</p> <p>6 WITNESSES: Competency — Transactions with Deceased — Reliance on Palse Representations. An interested litigant is not prohibited by the so-called “Dead Man’s Statute” (Sec. 4604, Code, 1897) from testifying against the administrator of a deceased:</p> <p>1. To facts from which, by inference, other facts may be found; nor</p> <p>2. To facts which deceased could not dispute were he alive.</p> <p>PRINCIPLE APPLIED: Plaintiff was seeking to recover, against the estate of a deceased, damages on account of false representations made by deceased to plaintiff. Plaintiff first established by other admittedly competent witnesses that deceased did make to him (plaintiff) certain representations. Plaintiff himself was then permitted to testify that he relied upon the various statements made by deceased, and %cas induced thereby to make the trade.</p> <p>Held, the ruling was proper.</p> <p>7 PRATO: Measure of Damages — Sale of Land — Pact Representation as to Value. The measure of damages for false representations in the sale or exchange of land is:</p> <p>1. The difference between the market value of the land as it was in fact at the time of the sale or exchange, and what it would have been worth had it been in the condition as represented; or</p> <p>2. The difference between the specifically represented fact value (if such was the representation), and what it was reasonably worth at the time the sale or exchange was made.</p>

The plaintiff, having been assessed for the amount of $10,000 upon his taxable personal property,'to which sum there was added the further amount of $10,000 by way of penalty, appealed therefrom to the city board of review.

— W. II. Faiiey, Judge. Action for damages for failure to convey real estate, pursuant to contract. There was a verdict for the plaintiff, and the defendant has appealed.

<p>Appeal from Polh District Court. — Lawrence DeG-raee, Judge.</p> <p>Action to recover a subscription, originally made by Charles Philpott, deceased, for the purpose of opening a street in the city of Des Moines. It is claimed that Carpenter assumed, and agreed to pay, this subscription. Carpenter denied that he agreed to pay the subscription, and further alleged that any such agreement was without consideration and void. On the issues joined, the case, was tried to the court, without a jury, resulting in a judgment finding both defendants liable; but Carpenter’s liability, as between him and Philpott, was declared primary. Carpenter appeals.—</p>

<p>1 SUNDAY: Work and Labor — Criminal Prosecution — Information— Sufficiency. An information under the statute prohibiting non-necessary and non-charitable work on Sunday, need' not allege that the alleged violation was “to the disturbance of the public peace.”</p> <p>2 STATUTES: Construction — Preambles, Etc. Principle recognized that resort may be had to the preamble or title or chapter headings of a statute, in order to ascertain the legislative intent, only when the language of the statute is ambiguous or doubtful.</p> <p>3 SUNDAY: Works of Necessity, Etc. — Bartering. The ordinary work or employment of a barter is not a work of charity or necessity within the meaning of the so-called Sunday statute. (Sec. 5040, Code, 1897.)</p> <p>4 CONSTITUTIONAL LAW: Sunday Laws — Works of Necessity and Charity. Statutes prohibiting- non-necessary and non-charitablo work on Sunday are constitutional. (Sec. 5040, Code, 1897.)</p> <p>5 SUNDAY: Works of Necessity, Etc. — Validity of Statute. A statute prohibiting all non-necessary and non-charitable work on Sunday is not invalid because of the all-inclusive character of the language used, and a consequent failure to enumerate each and every avocation of the human family which is prohibited.</p>

<p>1 LIMITATION OP ACTIONS: Ignorance of Praud — “Discovery.” The time within which an action for relief on the ground of fraud may be brought commences to run:</p> <p>1. Whenever the complainant has such knowledge or notice as would lead a reasonably prudent person to make inquiries which would disclose the fraud, and</p> <p>2. Ordinarily, where the fraud consists in making conveyance of lands, whenever the deed is properly recorded.</p> <p>PRINCIPLE APPLIED: A husband and wife had two minor children, a boy and a girl. The wife died owning 320 acres of land. The husband was appointed administrator, and, under probate proceedings fully complying with all forms of law, the land was sold to satisfy a claim held by the husband against the estate, and the husband became the purchaser. His deed was recorded in 1883. Until his death in 1914, a period of 31 years, he held open and notorious possession of said land under claim of absolute ownership. This husband remarried. By his will he devised said land for life to his widow, with remainder over to his four children by this last wife. The two children by said former wife reached their majority some -15 years prior to the death of their father. As early as 1903, when they were both of full age, one of them, who wras above the average in intelligence, had revealed to him in some suggestive way his possible interest in said land. He knew his mother owned the land at her death. He secured an abstract of title, had it in his possession for years, and obtained a legal opinion that the father’s title was good. The sister, as early as 1905, learned of this knowledge on the part of her brother. Neither said anything to their father about the land. In 1914, after the death of the father, these two children, as plaintiffs, sought to partition the land, on the claim that the purchase of the land by the father was, as to them, a constructive fraud. Held that, irrespective of the effect of the record of the probate matters and the father’s deed, the plaintiffs legally “discovered” the fraud, if any, as early as 1903, and the ñve years provided in Section 3332, Code, 1897, for questioning an administrator’s deed, had expired prior to bringing the action.</p> <p>2 PARTITION: Joinder of Actions — Irregularity of Administrator. Irregularities of an administrator in receipting for shares belonging to his minor children, 'without authority so to do, may not be corrected in an action by said children to partition lands, formerly belonging to said estate and alleged to have been fraudulently purchased by the father, even though the amounts so receipted for were in part the proceeds of such sale.</p>

— W. H. Fahey, Judge. Petition to vacate and set aside a judgment, and for a new trial of an action in which Albert C. Watson was plaintiff and William Horner was defendant, wherein Watson secured judgment by default against Horner for the sum of $800 and costs, the said action growing out of an automobile accident, the defendant William Horner being the owner and driver of the ear which struck Watson.

<p>1 APPEAL AND ERROR: Review — Questions of Fact — Conflicting Evidence. Under a fair conflict of evidence, the findings of tlic court on questions of fact have the same force as a jury finding, and are conclusive with the appellate court.</p> <p>2 APPEAL AND ERROR: Harmless Error — Excluding Repetition of Testimony. Tho court may vory properly rofuso to permit needless repetition of testimony by the same witness.</p> <p>3 JUDGMENT: Entry — Form—Following Trial' Theory and Pleading. A judgment entry in harmony with the trial theory and the pleadings is sufficient.</p> <p>PRINCIPLE APPLIED: Plaintiff, as executor, suing for rent, was met with a counterclaim for the return of rent already paid. This counterclaim was dismissed by the court. Whether plaintiff was the proper party against whom to plead the counterclaim, was not in the case, either on the trial theory or on the pleadings. Halil, the court was not in error in failing to state in the judgment entry that the cause was dismissed without prejudice to a future action against plaintiff wulividiially.</p>

<p>Appeal from Cherokee District Court.-— Wm. Hutchinson, • Judge.</p> <p>This is an action in equity, brought by appellants, who are heirs of James Dalton, deceased, for the purpose of partitioning 384 acres of land in Cherokee County and a residence lot in Le Mars, in Plymouth County, Iowa. Defendant, Margaret Dalton, is the widow of deceased, and the other defendant is a minor heir. Separate answers were filed. Plaintiff! interposed a demurrer to the answer of the widow, which was overruled, and plaintiffs appeal.</p>

<p>1 MASTER AND SERVANT: Workmen’s Compensation Act — Court Decree — Errors in Computation — Appeal. The decree of the court, in aid of the enforcement of the findings of boards of arbitrators or industrial commissioner under the Workmen’s Compensation Act, will not be reversed for errors in computation as to the amount of the accumulated unpaid payments, not called to the attention of the court, but raised for the first time on appeal.</p> <p>2 MASTER AND SERVANT: Workmen’s Compensation Act — Reduction of Payments by Physical Recovery — Burden of Proof. An employer lias the burden of proof to show that the servant has recovered his earning power, and that the payments should be reduced in accordance with the order of the arbitrators or commissioner.</p> <p>3 MASTER AND SERVANT: Workmen’s Compensation Act — Arbitration — Taxation of Pees. The fees of arbitrators under the Workmen’s Compensation Act are properly taxed to the employer.</p> <p>4 MASTER AND SERVANT: Workmen’s Compensation Act — Pindings of Arbitrators — Hospital Pees — Review by Court. The court, upon entering a decree in aid of the enforcement of an award under the Workmen’s Compensation Act, may not review the allowance of hospital fees made by the arbitrators or commissioner, especially where the employer, bn appeal, asserts that he “does not complain of any finding of fact or conclusion of law extending back beyond the decree of the court. ’ ’.</p> <p>Appeal from Carroll District Court. — M. E. IIutci-iison, Judge.</p>

— C. A. Dudley, Judge. This is au appeal by J. T. Norris, claimant, from certain orders of the district court in probate in the estate of L. B. Gray, deceased.

<p>Appeal from Polk District Court. — W. S. Ayres, Judge.</p> <p>The opinion states the ease. — Affirmed.</p>

— Charles A. Dudley, Judge. This is a certiorari proceeding, in the nature of an appeal from an order of the district court of Polk County in a contempt proceeding adjudging the plaintiff Keenhold guilty of contempt of court, and adjudging fine and imprisonment against him therefor.

Appewl from Winneshiek District Cowrt. — A, N. Hobson, Judge. This is an action in equity for the specific performance of a contract to convey lands. Defendant’s demurrer to the petition was sustained. Plaintiff appeals.

Appeal ¡rom Plymouth District Court. — William Hutchinson, Judge. Action upon two promissory notes. Defendant pleaded payment of one note, and admitted the execution and delivery of the other; and, for the amount thereof,( with interest and costs, offered to confess judgment. The case was tried to the court without a jury, resulting in a judgment for the amount of both notes.

<p>1 CRIMINAL LAW: Trial — Harmless Error — Remarks of Counsel. Error may not be predicated on statements of counsel as to matters of fact patent to the jury. So held where counsel for the State remarked to the jury that the arguments for the State were being' taken down by the reporter.</p> <p>2 CRIMINAL LAW: New Trial — Objectionable Argument — Belated. Objections. Objections to argumentativo statements are too late when made for the first time in a motion for new trial.</p> <p>3 CRIMINAL LAW: Trial — Improper Reception of Evidence — Withdrawal — Effect. The withdrawal of improperly received evidence, with instruction to the jury to disregard the same, ordinarily cures all error in the original reception.</p> <p>á CRIMINAL LAW: Trial — Private Assistant to County Attorney— Prohibition. A privately employed attorney may assist the county attorney in the trial of a criminal action, even though, at a time prior to his connection with such criminal action, such assisting attorney had been interested in a civil action which involved the matters and things 'involved in the criminal action, but had severed all connection with such civil action prior to any connection with the criminal action. It is a present interest which disqualifies. (Section 305, Code, 1897.)</p> <p>5 CRIMINAL LAW: Trial — Private Assistant to County Attorney— (Failure to Move for Exclusion. Failure, in the trial of a criminal action, to apply to the trial court for the exclusion of a disqualified privately employed attorney, works a waiver of the objection. So held, where such objection was raised before one trial judge on a .trial which resulted in a disagreement, but was not renewed on a retrial before another judge.</p>

<p>NEW TRIAL: Grounds — Inadequacy of Verdict in Tort Case. New trial may be granted on the ground of inadequacy of damages awarded in an action for willful and malicious tort..</p>

J. Springer, Judge. Plaintiff brought action in justice court against defendant, to recover the balance of the purchase price of a planing machine, claiming that there was due him the sum of $78, with interest from December 16, 3913. Defendant answered, denying plaintiff’s claim, and pleaded a counterclaim growing out of the transaction, amounting to $110.

— N. J. Lee, Judge. Action at law to recover damages on account of personal injuries alleged to have be'en occasioned by the negligence of defendant’s intestate. Judgment for plaintiff,, and defendant appeals.

— William ITutci-iinson, Judge. Action at law to recover the amount due and unpaid on the purchase price and the face value of defendant’s capital stock in the’ Knowlton Manufacturing Company, a corporation. The indebtedness was evidenced by a note given for the purchase price of the stock, and the consideration for the note was the four shares of stock in the corporation.

— W. S. Ayres, Judge. Action at law to recover commission on the sale of real estate. Judgment for plaintiff, and defendants appeal.—

— W. H. Faiiey, Judge. Action in partition. There was a decree for plaintiff, by which he and his two sisters and a brother, defendants, were each given one fourth of the real property. The decree also reformed an alleged misdescription as to a part of the land. The defendants appeal.

Appeal frovi Polk District Court. — Citas. A. Dudley, Judge. Action for damages for breach of warranty in the sale of an automobile. The principal defendant is the Great Western Automobile Company, a nonresident corporation. The only service of original notice on such defendant was made upon an alleged agent in Des Moines. Such defendant appeared specially and denied the agency, and likewise the validity of the service and the jurisdiction of the court.

— William Hutchinson, Judge. Action upon a promissory note, signed by the defendants.

— R. P. ITowell, Judge. Action lor damages for personal injuries. These were sustained in a collision of plaintiff’s automobile with defendant’s interurban car, at an intersection of the highway and the railway. There -was a verdict for the plaintiff and judgment entered thereon, from which the defendant has appealed.

— William Ti-ieopiiilus, ' Judge. Suit in equity brought by the heirs of Thomas Wilson, deceased, to set aside a conveyance of something like 400 acres, made by said Wilson before his death to defendant, C. A. Butterfield, a son. of Thos. F. Butterfield’s, also deceased. It is claimed that, at the time the conveyance was made, Thos.

— Seneca Cornell, Judge. Action for commission alleged to have been earned in finding a purchaser for land resulted in a judgment as prayed.

<p>1 APPEAL AND ERROR: Assignment of Errors — Assignment by Nonappeilant. The assignment of errors by a nonappealing appellee on rulings fully corrected in the trial court presents no question to the appellate court.</p> <p>2 JUDGMENT: Default — Vacation—Unavoidable Casualty. An unavoidable casualty sufficient to justify the vacation of a default judgment may consist of a pardonable misunderstanding on tbe part of counsel as to time when an answer was due.</p> <p>3 PRINCIPAL AND SURETY: Liability of Surety — Paid Surety— Strict Construction of Contract. Principle recognized that the contract of a surety who becomes such for a consideration is construed most favorably to the insured.</p> <p>4 PRINCIPAL AND SURETY: Discharge of Surety — Indemnity Bond —Breaches of Building Contract — Effect. Departures from the terms of a building contract which do not enlarge the liability of the surety on a bond given in connection therewith, are of no consequence when the undertaking of the surety is solely to indemnify the obligee from loss in case the .obligee, in accordance with the contract, pays out money in discharge of the contractor’s liability, and the contractor fails to reimburse the owner (obligee in the bond) therefor.</p> <p>5 CONTRACTS: Building Contracts — Construction—Allowable Payments — Principal and Surety. A contract for the construction of a building to cost $12,000, “subject to additions and deductions,” and providing for payments of “85 per cent of all work completed and all materials on the ground,” does not necessarily limit payments in the aggregate to 85 per cent of $12,000. In other words, so long as the owner pays no more than 85 per cent of “all work completed and ail materials on the ground,” he is not guilty of disregarding his contract, even though such payments exceed 85 peícent of $12,000, it appearing that the contract for $12,000 was less than the actual cost of the building.</p> <p>6 PRINCIPAL AND SURETY: Discharge of Surety — Contract Below Cost — Effect. The fact that the actual cost of the building is greater than the bid at which the contract was taken, does not release the surety.</p> <p>7 PRINCIPAL AND SURETY: Discharge of Surety — Pailure to Retain -Percentage of Payments — Presumption. The presumption that a failure to retain the proper percentage of payments under a building contract is prejudicial to the surety, is rebuttable.</p> <p>8 PRINCIPAL AND SURETY: Discharge of. Surety — Payments Without Architect’s Certificate — Effect. 'Payments on a building contract, without the certificate of the architect, as required by the contract, does not work a release of the 'surety, if it clearly appears that the .payments made were in fact earned, and were within the presci’ibed limits of the woi-k done.</p>

— D. M. Anderson, Judge. A suit in equity, to settle and determine conflicting claims of the parties to a right of way, for the construction, use and operation of a railroad for the transportation of… Held: as to still another portion, that neither party had title. The defendant alone appeals.-

• — E. M. Wrigi-it, Judge. Action at law to recover damages. Verdict and judgment for plaintiff, and defendant appeals. The material facts are stated in the opinion.

PRINCIPLE APPLIED: See No. 2. Appeal from Cherokee District Court. — W. D. Boies, Judge. Action at law to recover damages for alienation of the affections of the plaintiff’s wife. Judgment for plaintiff, and defendant appeals.

— F. 0.-Platt, Judge. Action to recover for personal injury of plaintiff, charged to be due to negligence of defendant. A verdict was directed against plaintiff on the ground that the defendant was not negligent, and that the plaintiff was guilty of contributory negligence. Plaintiff appeals.

— J. L. Kamrar, Judge. Suit in equity, to enjoin the alleged diversion of water from its natural watercourse. There was a decree for the plaintiffs, and the defendants appeal.

— William Hutchinson, Judge. Suit for personal injuries sustained. Through the town of Alvord, the track of defendant runs north and south. Along its west rail lie two planks, about 6 feet long, and some 22 inches wide. Adjoining these' planks and running west, is a cement walk, about 6 feet wide. During the evening of February 28, 1913, in freezing weather, some ice had formed upon this walk, and some 2 feet west of the west rail.

<p>Appeal from Carroll District Court. — F. M. Powers, Judge.</p> <p>The.facts sufficiently appear in the opinion. The defendants appeal.-</p>

— H. K. Evans, Judge. Action to quiet title to a strip of land. The real controversy is over tbe location of the partition line between adjoining landowners. There was a decree for the plaintiff in each case, and the defendant has appealed.

— W. J. Springer, Judge. Plaintiff claims that defendant made certain false representations to Mm wMeh induced Mm to buy a tract of land at $97.50 per acre, for wMch tbe seller received but $95 an acre, and that defendant fraudulently received the difference between what was paid and received, to wit, the sum of $500. Plaintiff had verdict and judgment for $500, and defendant appeals.

— E. B. Woodruff, Judge. Suit to set aside a tax deed, redeem from tax sale, and for accounting of rents and profits. On hearing, decree was entered as prayed. The defendant appeals.

— Lawrence DeGrafe, Judge. This is an appeal from the removal of appellant Conte, as administrator of the estate of Bagnola, and appointing appellee as administrator in his stead, and from a refusal to vacate said order, and to reinstate appellant as administrator.

— -L. J. Horan, Judge. Action to recover damages for the alleged malicious suing out of a search warrant, under which it is claimed that plaintiff’s .house was wrongfully searched. Verdict and judgment for the defendant in the court below. Plaintiff appeals.

<p>1 DRAINS: Establishment — Conclusive Finding as to Benefits — Reclassification. The act of establishing a public drainage improvement embraces a conclusive finding that all lands included .within the district will be specially benefited by the improvement, and, in proceedings to improve the ditch and render it effective, said former finding is not open for review.</p> <p>2 DRAINS: Assessments — Inequitableness—Evidence. It cannot be determined that an assessment is inequitable, in the absence of evidence properly comparing such assessment with other assessments within the district.</p>

— Henry Bank, Jr., Judge. Suit to recover for various items of labor and farm products furnished defendant. Defense, payment, and one in the nature of set-off or counterclaim. Verdict and judgment for plaintiff. Defendant appeals.

— W. H. McHenry, Judge. Action to recover damages for personal injuries occasioned by falling down an elevator shaft. Opinion states the facts.

— W. G. Sears, Judge. Suit to enjoin the trustees of a drainage district from proceeding with certain proposed drainage improvements. A petition of intervention was filed, and to answer thereto, a demurrer interposed and sustained. There was an answer to the original petition, and the cause submitted on an agreed statement of facts. The defendants appeal.

— Thomas Arthur, Judge. Indictment for assault with intent to commit murder. There was a verdict of guilty as alleged in the indictment, and the judgment entered thereon. The defendant appeals.—

— R. M. Wright, Judge. The petition, among other things, alleged, In substance, that the Independent School District of Union had been organized as such for more than 10 years, and included a territory of substantially four sections; that it included the incorporated town of Union, with a population of 800 inhabitants; that, prior to March 9, 1914, a suitable schoolhouse had been erected and schools maintained therein; that, on the date last mentioned, the proposition to…

<p>EXECUTION: Sale — Sale for Less Than Judgment — Right of Purchaser of Equity of Redemption. A sale of land on execution, for less than the amount of the judgment, exhausts the Hen of the judgment, and enables a purchaser of the owner's equity of redemption to redeem from the sale by paying the amount for which the land was sold, and to take the land free from any future levy for the amount remaining due on the judgment.</p>

<p>1 SALES: Rescission by Buyer — Tender—Implied Tender. Tender— an offer to return the property — as a condition precedent to the maintenance of an action to recover the price paid, may be implied. So held as to the correspondence of the parties.</p> <p>Ladd and Gaynor, JJ., dissent as to the sufficiency of the letters to show a tender.</p> <p>2 CONTRACTS: Rescission — Contract Conditions as to Rescission— Sales — Tender. A contract specifying the procedure to be followed in case the buyer of property elects to demand a return of the consideration paid, cannot be added to by the imposition of conditions additional to those so specified. So held on the question of the necessity for a tender.</p> <p>PRINCIPLE APPLIED: Plaintiff, in the purchase of corporate stock, contracted that, if he should decide not to keep the stock, the sellers would, at the price paid and within two years, “take the said stock off the buyer’s hands,” provided he (the buyer) gave the sellers tlwrty days’ notice in icriting of his (the buyer’s) intention. The plaintiff, within the time specified, gave the specified written notice. Held, formal tender or offer to return the stock could not be required of the buyer.</p>

— E. M. McCall, Judge. Suit praying for the construction of the will of J. H. Carleton, deceased, and the cancellation and surrender to plaintiff of a note and, mortgage executed by it to him. Decree was entered as prayed. The defendants, as executors of his estate, appeal.

— 3. T. Moppit, Judge. Action to recover property sold and delivered, on the ground that the purchaser was insolvent, and that the check delivered by him in payment for the property was dishonored. There was a judgment for the plaintiffs and the defendants appeal.-

— B. B. Woodruff, Judge. A resolution of necessity for curbing and paving the street in front of Jorgen Hansen’s property, was adopted by the city council of Missouri Valley, January 6, 1914. In pursuance thereof and other proceedings, the regularity of which is not questioned, said street was curbed and paved later in the year.

<p>Appeal from Delaware District Court. — Franklin C. Platt, Judge.'</p> <p>Myrtle L. Irish, now deceased, obtained a policy of insurance on her life from the defendant insurance company. Upon her decease, the appellant, McDonald, claiming to act as administrator of the estate of the said Myrtle Irish, recovered a judgment upon said policy. Thereafter, a new trial was granted the defendant. This appeal is from that order.</p>

<p>1 INCEST: Corpus Delicti — Corroboration—Sufficiency. Evidence reviewed, and held (a) to support a verdict of guilt of incest, and (bj to show sufficient corroboration of prosecutrix.</p> <p>2 WITNESSES: Credibility — Character and Conduct — Effect. Principle recognized that the mental attitude and conduct of a witness goes only to the weight and credibility of the testimony given by the witness.</p> <p>3 CRIMINAL LAW: Trial — Instructions—Character Evidence. On the subject of character evidence, defendant’s rights are fully protected by an instruction, (a) that, if the. jury entertained a reasonable doubt of defendant’s guilt, upon the whole record, they should acquit; and (b) that good character was sufficient to generate such- doubt, even though, without proof of good character, they would convict.</p>

— John T. Moeeit, Judge. Action to recover damages for injury to á carload of charcoal, en route from Carters, Michigan, to Cedar Rapids, Iowa, the same having been damaged by' fire before it reached defendant’s line. The suit is bottomed on'an alleged agreement of defendant’s agent at Cedar Rapids to pay the claim. A jury was waived, and the cause tried to the court, resulting in a judgment for plaintiff, and defendant appeals.

— W. II. McHenry, Judge. This is an action to recover rent alleged to be due for business property in the city of Des Moines. There was a trial to a jury. At the close of the testimony, the court sustained plaintiff’s motion to direct a verdict for $2,795.22. Judgment was rendered against defendant E. M. McCray for that amount, and he appeals.

<p>Appeal from Winnebago District Court. — J. J. Clark, Judge.</p> <p>This is a controversy over tbe boundary lines of plaintiff’s property in the town of Forest City. The defendant claims that plaintiff’s fences, trees, etc., are out in the streets which are on three sides of her property, and that a public alley to the south thereof has been completely enclosed by her; and, as defendant was threatening to open said alley and to remove her fences, she brought this action to quiet her title in all the property claimed by her, and to enjoin defendant from opening the alley, or from in any way interfering with her possession of the property, as claimed by her. Upon a hearing to the court, plaintiff’s north and west lines, as claimed by her, were established, but her east line was removed a few feet to the westward, and the alley to the south was ordered opened. Both parties appeal; but, as plaintiff alone perfected her appeal, and defendant is not now seriously insisting upon more relief than was granted it on the north and west sides of plaintiff’s property, we shall consider nothing but plaintiff’s appeal.</p>

— Wm. H. McHenry, Judge. Action at law upon a promissory note made and executed by defendant to one T. J. Gooch, and by the latter assigned to plaintiff. The defense was that the note was executed and delivered on Sunday. The case was tried to the court, without a jury, resulting in a judgment dismissing the petition.» Plaintiff appeals.

— Milo P. Smiti-i, Judge. Action upon a contract of guaranty, made by defendant as an inducement to plaintiff to purchase some land in North Dakota. Defendant admitted the making of the contract, but claimed that it did not cover the loss claimed by plaintiff; that it was without consideration; and that it never became effective.

— Milo P. Smith, Judge. The two eases entitled as above were consolidated and tried in the district court as one, and will be so treated here. They are injunction actions, brought to enjoin the Consolidated School District, its officers and directors, from transacting any business as such, and asking the court to declare all the proceedings relating to the creation, organization and establishment of the district; null and void.

G-. Albert, Judge. Suit in equity to cancel a contract between defendant Herman Hagge; and Tbos. Jochimsen, for tbé sale of certain lands now claimed by plaintiff. The trial court denied the relief asked by plaintiff, and he appeals.

— F. O. Ellison, Judge. This was an application by plaintiff for the appointment of a guardian of the property of defendant. There was a trial to a jury, and a finding by it that defendant was incompetent to care for her business, and a guardian was appointed. From such appointment, the defendant appealed.

— Lawrence DeG-raee, Judge. Action of replevin, to recover something like 601 maps and plats of real estate in the city of Des Moines, showing the location of buildings and other improvements thereon, which said maps and plats, it is claimed, were used in the office of and by the city assessor of the city of Des Moines.

— A. N. Hobson, Judge. Action in equity to rescind an exchange of lands because of alleged fraud and misrepresentation on part of defendants. There was a decree for plaintiff, and defendants appeal.—

— A. N. Hobson,Judge. This is a proceeding in certiorari brought in the district court of Chickasaw County by Sheakley &. Kennedy Bros, and thirty-six others as plaintiffs, against the county board of review of that county, to test the authority of said board of review to make certain changes in the assessment of merchandise in certain of the cities and towns in said county, and to annul and set aside the action of said board in changing said assessments.

— C. W. Vermilion, Judge. Action in mandamus to compel compliance with, the terms of a franchise granted to defendant. Decree was entered as prayed. The defendant appeals.

<p>Appeal from Crawford District Court. — F. M. Powers, Judge.</p> <p>Opinion states the facts. Decree for the defendant in the. court below. Plaintiff appeals.</p>

— Lawrence DeGraff, Judge. Action at law to recover damages for personal injury. There was a directed verdict and judgment for the defendants, and plaintiff appeals.

— E. G. Albert, Judge. Appeal from rulings on motions to strike, and for more specific statement, addressed to a petition filed by plaintiff against defendant, to recover compensation for personal services to be rendered by plaintiff and his wife, and for damages for a wrongful discharge of plaintiff under a contract for services for one year.

— C. A. Dudley, Judge. Action at law to recover damages for the death of plaintiff’s intestate. There was a trial to a jury, and verdict and judgment for plaintiff. Defendant appeals.

— F. M. Powers, Judge. 'Action for divorce, on the grounds of habitual drunkenness and cruel and inhuman treatment. Decree for plaintiff, and defendant appeals.

— O. D. Wheeler, Judge. Action to recover damages for personal injury, based on the Federal Employers’ Liability Act. Opinion states the facts. Verdict and judgment for the plaintiff. Defendant appeals.

<p>Appeal from Pottawattamie District Court. — J. B. Rockaeedlow, Judge.</p> <p>Action on a bond resulted in a verdict and judgment thereon for plaintiff. The defendant appeals.</p>

— C. W. Mullan, Judge. Proceedings in contempt, in which the city council were called upon to show reason why they should not be punished for contempt as for a violation of an in junctional order entered against the'city, restraining the council from making an assessment against plaintiff’s lots. Opinion states the facts. Judgment for defendants in the court below, discharging defendants from the charge of contempt. Plaintiff appeals.

— W. S. Ayres, Judge. Plaintiff sues to recover damages for personal injury, and from a judgment in ber favor against both defendants they appeal. The material facts are stated in the opinion.—

— O. D. Wheeler, Judge. Original action to set aside the probate of the will of John Horsley, deceased. The only ground of attack submitted to the jury was mental incapacity. There was a verdict for the contestants. The proponent appeals.

— C. W. Vermilion, Judge. Action to recover for services rendered a. wife in a divorce proceeding against her husband. Judgment for the defendant in the court below. Plaintiff appeals.

- — E. M. McCall, Judge. Indictment charging defendant with the seduction of Hattie Arends. The Honorable D. C. Chase was employed as special counsel to aid the State. His so acting, was objected to on the ground that he was disqualified by the provision of Section 305 of the Code of 1897, which prohibits an attorney from thus assisting the State if he be interested in a civil action in which the recovery might be had upon what is involved in the criminal prosecution.

— Charles A. Dudley, .Judge. Conviction for maintaining a nuisance by selling intoxicating liquor and keeping same with intent to sell within a building in Polk County, contrary to law. Defendant was ordered to pay a fine of $1,000 and the costs of suit, including an attorney’s fee of $50, and appeals.

— E. B. Wood-ruff, Judge. On application for divorce instituted by Minnie Albertus, and cross-petition by her husband, Charles A.'Albertus, the present appellant, a divorce was decreed, and none of the children of the marriage given into the custody of the mother. Two, young boys, were given to the father. The other, Mabel, then a very young girl, was placed in the custody of her maternal grandparents, with whom her mother at* present lives.

— T. L. Maxwell, Judge. Action in equity, to set asid© a judgment and for a new trial, based on the ground that the plaintiff in a law action was denied the right to be heard on appeal, because bill of exceptions was not preserved and filed within 30 days from the entry of the judgment, it appearing'that, within 30 days from the rendition of the judgment, the plaintiff requested the official shorthand reporter to attach a certificate to the minutes of the testimony taken by…

<p>1 JUDGMENT: Lien — Attaches to Interest of Judgment Debtor Only. A judgment does not become a lien upon real estate of which the judgment defendant has been deprived of all interest prior to the entry of judgment in the district court. So held where the judgment defendant, a railway company, was, through receivership proceedings, deprived of all title to certain real estate, and the same taken over by a reorganized company, prior to the filing in the district court of a judgment against the insolvent and defunct company.</p> <p>2 DEEDS: Form and Contents — Failure to Specifically Describe Property — General Clause — Effect. Uncertainty in description of real property such as to nullify a deed does not necessarily result from employing a general conveyance clause in lieu of a specific description by platted lot and block numbers. So held where, after more specific descriptions, appeared "and all other property owned by” (naming grantee), and "all other property (of grantee) of every kind and nature and wherever situated . . . whether or not herein specifically described.”</p> <p>3 RECEIVERS: Allowance and Payment of Claims — Failure to File as Per Order of Court — Effect. Purchasers, at receivership sale, of the property of an insolvent, are under no obligation to pay claims held against the insolvent, but not filed in the receiver-ship proceedings as required by the orders of eojirt. So held where a judgment holder sought to enforce his judgment after sale and deed in receivership proceeding.</p> <p>4 WITNESSES: Privileged Communications — Duty of Attorney to Claim. An attorney should claim the privilege to keep inviolate the confidential communications of his client, in the absence of any showing that the client waives the benefit of such privilege. So held where an attorney was asked to produce the correspondence of his client.</p> <p>5 TRIAL: Reception of Evidence — Equity Causes — Privileged Communications. The mere fact that a trial is in equity is no justification for the reception of manifestly inadmissible evidence. . So held where the court, in an equity cause, refused to receive confidential communications to an attorney. . • -</p>

— A. J. House, Judge. Action at law to recover tbe sum. of $2,000 upon a certificate of membership by defendant to Charles V. Cook. -Verdict for $1,813 directed for plaintiff. Defendant appeals.—

— Thomas Arthur, Judge. Suit to cancel the levy and enjoin the collection of taxes for school purposes of the Consolidated Independent School District of Beebeetown, resulted in the dismissal of the petition. The plaintiffs appeal.

— F. O. Ellison, Judge. Action in equity to establish in plaintiff the title to a strip of land now and for many years past occupied by defendant as a railway sidetrack or service track, extending from its main line on the Davenport division some 2,250 feet north, and to a plant once occupied by the Diamond Creamery Company. Decree for plaintiff. Defendant appeals.;—

— W. N. Treichler,' Judge. All three of the foregoing cases involve, under the decision arrived at, the single question whether an appeal was duly perfected from certain assessments made by the defendant city against the property of appellees, on February 18, ■1914. A motion to' dismiss appeal interposed by the defendant in each case was overruled, and hence this appeal. — ■

<p>DEEDS: Recording — Failure to Record Contracts Affecting Real Estate — Subsequent Purchasers. An assignee of a contract which affects real estate must record the same in order to be protected against subsequent purchasers of the real estate, for a valuable consideration, without notice. (Sec. 2925, Code, 1897.)</p> <p>PRINCIPLE APPLIED: Heinse agreed in writing to sell his lands to Lessenich. This contract was at once recorded. Lessenich attempted to rescind the contract, and thereby he and Heinse became involved in litigation. Later, and during the pendency of this litigation, Heinse, for value, assigned his interest in this contract to the Bailey State Bank. The bank did not reoord this assignment. Still later, Heinse for a valuable consideration sold all his interest in said lands to Hedrick, who knew of the contract between Heinse and Lessenich, but had no knowledge that Heinse had assigned the contract to the bank. Neither Hedrick nor the bank had so far been in possession of the land. Lessenich abandoned his attempt to rescind. In a controversy between Hedrick and the bank, held Hedricks’ rights were srxperior to those of the bank.</p>

<p>1 CHATTEL MORTGAGES: Lien and Priority — Notice—Want of Notice — Evidence—Sufficiency. That an execution creditor did not, prior to his levy, have actual notice of the existence of a chattel mortgage, is sufficiently shown, in the first instance, by testimony to that effect by such creditor’s general manager.</p> <p>2 CHATTEL MORTGAGES: Lien and Priority — Description of Property — Sufficiency to Impart Notice. Constructive notice of the existence of a chattel mortgage, duly recorded, is not imparted to the world by a property description which may he applied to any of a class, without anything, to single out the particular property in question from other propeo-ty of the same class.</p> <p>PRINCIPLE APPLIED: The property covered by a chattel mortgage was' described así</p> <p>“One Regal Undei'-slung Model ‘N’ roadster automobile. Now in the possession of the mortgagor and usually kept at his place of business in Brooklyn, Iowa, and owned by the mortgagor.”</p> <p>The "model” should have been designated as "M” instead of "N.”</p> <p>The mortgagor resided and was doing business at Brooklyn, and the mortgage was promptly recorded in the county in which Brooklyn was situated. While the car, prior to the execution of the mortgage, had been kept and used by the mortgagor at his place of business in Brooklyn, yet, when the mortgage was executed, the car was, and for some four months had been, in a garage at Marshalltown for repairs, and it remained there for some five months after the mortgage was executed, when it was levied on by an execution creditor of the mortgagor, which creditor had no actual notice of said mortgage. Held that, irrespective of the error in designating the model as "N,” the description simply designated a general class, with nothing to point out which one of such class was intended, and therefore, and in view of the non-possession of the ear by the mortgagor, the mortgage imparted no constructive notice to the execution creditor.</p> <p>3 CHATTEL MORTGAGES: Lien and Priority — Description of Property — Incorrect Statement — Effect. A clause in a chattel mortgage which, if true, would aid in the description of the property, but which is in fact untrue, cannot be said to furnish any aid in ascertaining the particular property covered by the mortgage. So held as to an incorrect statement as to the possession by the mortgagor.</p> <p>á CHATTEL MORTGAGES: Lien and Priority — Description of Property — Parol Evidence to Aid — Competency. Parol testimony concerning inquiries not suggested by a chattel mortgage is incompetent. .</p>

Appeal-from, Polk District Court. — C. A. Dudley, Judge. The plaintiff was recorder of Polk County, and defendant, her deputy. Plaintiff claims under an oral agreement, under which she paid defendant $25 a month above the compensation allowed him by statute, on condition that he should refund if the board of supervisors should refuse to allow plaintiff for this expenditure. The board refused to make such allowance. Defendant refused to reimburse.

— O. D. Wheeler,Judge. Appellant prayed a decree canceling certain acts done and proposed for the purpose of effecting a consolidation of school districts, and further prayed an injunction to restrain defendants from carrying or seeking to carry out and putting into execution an alleged consolidation, and from levying any taxes or imposing any burdens of tax upon the district, territory and property therein situated which comprises the territory within an alleged…

• — F. M. Powers and M. E. Hutchison, Judges. Action to set aside the probate of the will of Margaret McHugh. The petition prayed also for other relief. The various defendants filed answers, counterclaims, and cross-petitions. Because of the refusal of the plaintiff to comply with a certain order of the court, his petition was by the court dismissed.

— A. B. Titornell, Judge. This action involves the proper construction of a will; involves a controversy between the executor of the will and a legatee named in the will, over the right to rent certain real property disposed of in the will. The opinion states the facts.

— A. B. Ti-iornell, Judge. Action in equity for an injunction. Opinion states the facts. Judgment for the defendant in the court below. Plaintiff appeals.

<p>Appeal from Johnson District Court. — R. P. Howell, Judge.</p> <p>Action for' balance owed on contract resulted in judgment as prayed. The defendant appeals.</p>

<p>Appeal from Hancock District Court. — Joseph J. Clark, Judge.</p> <p>Decree for the plaintiff in the court below. Defendant appeals. The opinion discloses the facts.</p>

— II. E. Pry, Judge. Action brought by a ward, on attaining her majority, against her guardian, to recover an amount of money received by the guardian, as such, and against the husband of the guardian, for the wrongful conversion of the fund received. Judgment in the court below dismissing plaintiff’s appeal.

— D. M. Anderson, Judge. Proceeding in equity to • obtain a mandatory injunction requiring the defendant company to remove a certain concrete pier erected by it over a stream, on its right of way. The theory of the plaintiff is that he had a permissive right to nse the space under the bridge as a passageway for cattle, and that the pier obstructs and interferes with the exercise of this right. Decree for the defendant in the court below, dismissing plaintiff’s petition.

<p>Appeal from Polk District Court. — Wm. S. Ayr.es, Judge.</p> <p>The opinion sufficiently states the case.</p>

- — W. H. McHenry, Judge. Action at law to recover of defendant on a supersedeas bond, which had been signed by said defendant as surety. There was a trial to a jury. At the close of plaintiff’s evidence, the court sustained defendant’s motion for a directed verdict. Judgment was rendered against plaintiff for costs. Plaintiff appeals.

<p>Appeal from Sac District Court. — E. G. Albert, Judge.</p> <p>The opinion states the essential facts.</p>

— Milo P. Smith, Judge. This is an action at law, brought by the trustee of the bankrupt estate of John W. Garrett to recover money paid on default ■ judgment against Garrett within four months preceding the filing of the petition in bankruptcy. There was a trial to a jury, and, at the close of the testimony, the trial court directed a verdict for the defendant, and rendered judgment against plaintiff for costs. Plaintiff appeals.—

— John W. Kintzinger, Judge. Action brought to obtain judicial construction of the will of Jacob Sperner, deceased. From the ruling and judgment of the trial court, the plaintiffs appeal.

-r — E. G.' Albert, Judge. Appeal by the defendant from the allowance of a claim in favor of -plaintiff against the estate of Nancy McGee, deceased. The material facts are stated in the opinion.—

<p>Appeal from Linn District Court. — Milo P. Smith, Judge.</p> <p>The defendant is the executor of the will of John B. Leigh, deceased. The plaintiff filed a claim against the estate of Leigh for the payment of a promissory note. The claim was contested by the executor, and upon trial to the court it was rejected, and plaintiff appeals.</p>

<p>Appeal from Clinton District Court. — J. L. Horan, Judge.</p> <p>The opinion states the ease.</p>

— Charles B. Robbins, Judge. Appeal by plaintiff from tbe order of tbe trial court setting aside a default and judgment entered thereon against the defendant. The material facts are stated in the -opinion.

-^-D. F. Coyle, Judge. . This is an action in equity, to partition about 900 acres of land situated in Iowa in the counties of Kossuth, Humboldt, Webster and Pocahontas, formerly owned by David K. Jackman, who died testate on July 16, 1877, a citizen of the state of New Hampshire. The will was executed' in that state May 30, 1873. The will of the widow, Seraphina. R. Jackman, was executed in September, 1908. Two codicils to her will were executed, in 1910 and 1913.

— M. E. Hutchison, Judge. Action in equity to restrain the defendant, acting as road supervisor, from removing certain fences, and from trespassing upon the lands of the plaintiff. The trial court found for the defendant, and the plaintiff appeals.

— John T. Moppit, Judge. Action to recover damages occasioned to abutting property by cutting or excavating a street below the established grade. There was a directed verdict, and from the judgment thereon, plaintiff appeals.