Volume 179 — Iowa Reports

— M. F. Donegan, Judge. This is a controversy over the boundary lines of plaintiff’s lots in the town of Bettendorf. The action is to quiet plaintiff’s title to a strip which defendant contends is a part of one of the streets of the town, and another strip which the town claims is an alley. The trial court dismissed plaintiff’s petition, and he appeals.

— Hubert Utterback, Judge. This is an action in equity, in which plaintiff claims that defendant was a partner in the horse business. Plaintiff asks to have the alleged partnership dissolved, an accounting had, and judgment against defendant for half the losses. The trial court found in favor of the plaintiff, and rendered judgment against defendant for $1,735.44. The defendant appeals.

— C. B. Bobbins, Judge. Action at law to recover upon a certificate of life insurance issued by the defendant association on the life of Anthony Michalek. There was a directed verdict and judgment' for the defendant, and plaintiff appeals.

— Milo P. Smith, Judge. . Action at law to recover damages for an alleged libel published of and concerning the plaintiff.

— E. B. Woodruff, Judge. Action in equity for the annulment of a contract entered into between the defendant town and one Beebe for the paving of certain named streets, .and to restrain the town and its officers from proceeding with the work of constructing such paving and from levying any assessment to pay the cost or expense thereof. There was a decree for the defendants and plaintiff appeals.

— Wm. Theopi-iilus, Judge. Action at law to recover upon a policy or certificate of insurance issued by the appellant to Marvin W. Teeple. There was a directed verdict and judgment for plaintiff, and defendant appeals.

— Charles A. Dudley, Judge. This is an action at law to recover $500,000 for royalties alleged to be due on a license contract made between the plaintiff and the American Arithmometer Company, the defendant’s assignor. .The appeal is by plaintiff from a holding of the district court, sustaining, in part, defendant’s motion to strike parts of plaintiff’s petition, and from the ruling of the district court in sustaining defendant’s demurrer to the remainder of the amended…

— E. B'. Woodruff, Judge. Suit to set -aside a decree of divorce and for allowance of a distributive share of the property of deceased party, and, if not set aside, for additional alimony. On hearing, the petition was dismissed. The plaintiff appeals.

— A. P, Barker, Judge. Action in equity to establish and confirm plaintiff’s alleged interest in certain real property. Petition dismissed, and plaintiff appeals.

- — F. 0. Ellison, Judge. Defendant is a life insurance company, organized under the laws of the state of Connecticut, and licensed to do business in the state of Iowa. In the year 1883, the plaintiff, Peter C. Frick, entered into contracts for life insurance in the defendant company, in what was known as its Safety Fund Department. The insurance was represented by five policies or contracts for $1,000 each.

- — H. K. Evans, Judge. In his lifetime, Patrick Hallagan obtained a judgment against defendant Dowell in a court of the state of Indiana. He brought action in this state upon that judgment. So far as we are concerned with it, defendant pleaded that, since the rendition of the judgment, he had been discharged in bankruptcy, and thus freed from liability under the alleged judgment.

— Franklin 0. Platt*, Judge. Archibald Livingston died testate March 19, 1909, and objections to the probate of his will and two codicils were filed by lateral heirs. On trial, a verdict for proponent was directed, and an order entered admitting the will and codicils to probate. The contestants appeal.

— Robert Bonson, Judge. Action at law to recover damages for personal injuries received by plaintiff, while in defendant’s employment as a helper to a head m el ter, in a brass foundry conducted by the company in connection with its manufacturing plant in the city of Dubuque.

Polk District Court.- — W. S. Ayres, Judge. . Action at law, in which plaintiff seeks to recover as beneficiary under a certificate of accident insurance issued to one George B. Murphy. There was a trial to a jury. At the close of the testimony, (he trial court directed a verdict for plaintiff on plaintiff’s motion. Defendant appeals.

— W. H. Fahey, Judge. Action at law to recover damages for the wrongful destruction of trees planted within the hounds of the street fronting upon the plaintiff’s residence property. Verdict and judgment for plaintiff, and defendant appeals.—

— D. M. Anderson, Judge. Action at law to recover a broker’s commission for finding a purchaser for certain coal lands belonging to defendant. The case is bottomed on an express agreement on the part of the defendant to pay plaintiff 5 per cent commission on the selling price of the lands. The defendant filed a general denial, and also an affirmative defense, to be hereinafter noted.

— Chas. E. Alisrook, Judge. Appears from the orders of the board of supervisors were taken to the district court. These appeals were consolidated, and on hearing, the assessments on all but two 40-acre taicts were approved, and these reduced. The several landowners appeal.

— W. H. Fahey, Judge. Action upon a promissory note for $1,784, dated June 21, 1913, by its terms due January 1, 1914. The note Avas executed by defendant, and payable to Star Land Company. It Avas indorsed in blauk before maturity by the payee, and discounted by plaintiff bank. There Avas a trial to a jury, and verdict and judgment for defendant. Plaintiff appeals.

— R. P. Howell, Judge. Automobiles driven by tbe parties hereto collided August 30, 1911. Both claim damages, plaintiff in the petition, and defendant in his counterclaim. Trial resulted in a verdict for the defendant and judgment thereon. The plaintiff appeals.

<p>BILLS AND NOTES: Bona Fide Purchaser — Presumption. One 1 who has possession of a note under indorsement to him is presumed to be a holder in good faith and without notice, until evidence appears that in some manner taints the note or shows that it was wrongfully put into circulation.</p> <p>CONVERSION: Nature and Grounds of — Purchase of Property not 2 Paid For. One who purchases property may not he charged with conversion simply because his vendor has not paid therefor.</p> <p>PLEADING: Issue, Proof and Variance — Evidence to Conform to 3 Pleading. One may not base his claim for á recovery against defendant on the plea that he had loaned certain property to another, and that such other had wrongfully sold the property to defendant, who converted the same to his own use, and subsequently claim a recovery on the theory that, even though he had sold the property to such other person, the defendant was liable because such other person had not paid plaintiff.</p> <p>APPEAL AND ERROR: Review — Exclusion of Testimony — Neces4 sity to Show Prejudice. Error may not be predicated on the exclusion of testimony, unless the record, in some affirmative manner, shows the nature and effect thereof.</p> <p>WITNESSES: Competency — Transaction With Deceased — Assignee 5 of Deceased. An assignee of a note, plaintiff in an action against the maker thereof, is a competent witness to personal transactions with the deceased payee of the note.</p>

— H. K. Evans, Judge. Action for breach of warranty, iu which defendants interposed a counterclaim praying recovery of an amount paid by them to discharge the remainder of a foreclosure decree not satisfied by the sale of the mortgaged land. On hearing, judgment was entered for plaintiff as prayed, and the counterclaim dismissed. The defendants appeal.

— J. D. Smyth, Judge. Action by the administrator cle Tjonis non of Theodore Wykert against the administrator and beneficiaries of the-estate of Elizabeth Wykert, widow of Theodore, to recover the proceeds of sale of certain real estate belonging to the estate of Theodore, the widow being at the time of her death the executrix of the will of Theodore. The trial court found for the plaintiff, and the defendants have appealed.

— Milo P. Smith, Judge. Suit in equity, to enjoin the defendants from trespassiug upon plaintiff’s property. Tlie defendants denied the trespass, and by way of cross-bill prayed that the plaintiff be enjoined from interfering with their use of certain “ways, roads and streets.” There was a decree requiring the defendants each to contribute to the maintenance of certain, roadways the sum of $5 per year, as a condition to their use of such roadways.

Certiorari from Woodbury District Court. — J. W. Anderson, Judge. Certiorari to review the action of the said judge. The plaintiffs were adjudged guilty of having violated a temporary injunction, enjoining them from violations of the laws of the state regulating the sale and keeping for sale of intoxicating liquors, and bring this proceeding to review the judgment finding they had violated said injunction.

Appeal pom Wmnosldelc District Court. — A. N. Hobson, Judge. Action for damages, actual and exemplary, by the plaintiff against the defendant for the alleged debauching of his minor daughter. Actual damages for expenses • and loss of service are claimed under the provisions of Code Section 3471. The defense was a general denial. There was a verdict for the plaintiff for $6,500, and the defendant appeals.

— William Hutchinson, Judge. A demurrer was sustained to a counterclaim filed by the defendants in a suit against them for the purchase price of some paint delivered to them. At the close of the trial, a verdict was rendered against the defendants. Subsequently, a motion for new trial, filed by defendants, was sustained, and the plaintiffs appeal from that ruling. — Affirmed.

— D; M. Anderson, Judge. Suit for specific performance of an oral contract to convey by quitclaim deed an undivided one-seventh interest in a certain 120 acres of land situated in Lucas County. It is averred that the defendants received from the plaintiff the full consideration agreed upon for such conveyance. The defense is a specific denial that the defendants ever agreed to convey the premises in question. There was a decree for the plaintiff, and the defendants appeal.

— John F. Talbott, Judge. Action to recover liquidated damages based upon a failure of defendant to perform a contract at the time stipulated. Counterclaim to recover money paid upon the purchase price of the land, based on the ground of mutual rescission of the contract of sale. Judgment for the defendant in the court below. Plaintiff appeals.

— John F. Talbott, Judge. Action for damages consequent on an alleged nuisance resulted in a judgment against defendant, from which it appeals.

— Milo P. Bmith, Judge. Appeal by the plaintiff from certain rulings concerning attacks made upon pleadings filed by plaintiff. It is not clear whether complaint is made of the rulings of Judge Ellison as well as those of Judge Smith. —

— Lorin N. Hays, Judge. Action for damages for negligent delay in the shipment of stock. There was a verdict for the plaintiff, and the defendant appeals.

— H. B. Boies, Judge. Action to enjoin the defendant from constructing a schoolhouse. On hearing, the petition was dismissed. Plaintiffs appeal.

— Wm. Hutchinson, Judge. Suit in equity to quiet title to lands, and in effect to reform a deed by striking out the name of a grantee therein. The trial court refused relief, and the plaintiff has appealed.

— W. D. Boies, Judge. Action of partition brought by the plaintiff, an illegitimate child, claiming to have inherited a child’s interest from her putative father, who died testate. There was a demurrer to her petition, which was sustained, and she appeals.

— T). M. Anderson, Judge. The petition declares that damages are due because, upon the matters alleged, defendant should be charged with and to have breached an implied warranty that hogs sold by him were fit for the use he knew plaintiff would put them to. From sustaining a demurrer to this petition, plaintiff appeals.

— E. M. McCall, Judge. Defendant appeals from a conviction on an indictment charging him with having obtained money from Boone County under false pretenses, whereby said county was defrauded and cheated to the amount of $94.70. —

— Lorin N. Hays, Judge. Suit to quiet title to a strip of land and obtain possession thereof. In defense, defendant pleaded ownership, acquiescence and adverse possession. On hearing, the petition was dismissed, and plaintiff appeals.

— William Hutchinson, Judge. Appeal from proceedings to condemn a strip of land from defendant’s depot grounds as an alley. A directed verdict for defendant was returned, and judgment entered thereon. The plaintiff appeals. —

— W. G. Sears, Judge. Suit in equity to reform a contract of guarantee and to recover thereon. There was a judgment for the plaintiff, and the defendant appeals.

— D. M. Anderson, Judge. Action upon a promissory note. The defendant pleaded pai ment and a counterclaim. There was a judgment for the plaintiff for the full amount of the note, less a payment of $300 admitted by the plaintiff. The defendant appeals.

— AV. D. Boies, Judge. Action for damages resulted in a verdict for defendant. On plaintiff’s motion, a new trial was granted, and from this i’uling defendant appeals.

<p>JUDGMENT: Opening or Vacating — Void Judgment — Divorce. 1 Lapse of time does not, of itself, bar a motion to set aside a void decree. So held in divorce proceedings.</p> <p>JUDGMENT: Opening or Vacating — Void Judgment — Procedure. 2 The proper procedure lo set aside a void judgment is by motion.</p> <p>DIVORCE: Judgment or Decree — Nonconelusiveness of Finding on 3 Question of Residence. The granting of a decree of divorce necessarily embraces a finding that the recipient of the decree is a resident of the county; but such finding, when induced by fraud and perjury, on ex parte hearing, on service by publication, is not conclusive.</p> <p>.DIVORCE: Jurisdiction — Nonresidence c ' Both Parties. Jurisdic4 tion of proceeding for divorce is not obtained in the absence of bona fide residence in the county, animo manendi, of at least one of the parties.</p>

<p>Appeal from Marshall District Court.- — B. F. Cummings, Judge.</p> <p>Suit to foreclose a mechanics’ lien. Abbott & Son, in a petition of intervention, asked the foreclosure of a lien as subcontractors. On hearing, the petition was dismissed, and judgment was entered on the petition of intervention against the plaintiff for the amount claimed, less $25.17 paid into court by defendants, and that intervener have such sum hut he denied other relief. The intervener appeals.-</p>

— Edward M. McCall, Judge. Certiorari to test the legality of certain proceedings of the defendant boards, and praying that they be annulled. The petition was dismissed, and plaintiffs appeal.

— Seneca Cornell, Judge. Appeal by defendant from order appointing receiver, and by plaintiffs from an order overruling motion to strike will or declare it inoperative, and an order sustaining an application that the trial of an equity cause be postponed until contest on will be determined. —

<p>CONTRACTS: Modification and Merger — Evidence. The plea that 1 a written contract was set aside and an oral one substituted therefor is not sustained by evidence of indefinite and uncertain conversations between the parties.</p> <p>CONTRACTS: Consideration — Fulfilling Existing Obligation. 2 Merely fulfilling an existing obligation will not supply a new consideration for an additional promise.</p>

Certiorari from Woodbury District Court. — W. G. Sears, J udge. Certiorari, contesting the legality of the court’s action in a proceeding modifying a decree of divorce in so far as it relates to the alimony granted, brought under the provisions of Section 3180 of the Code of 1897, the contention being that the court acted illegally, in so far as it decreed that the defendant was not holden for accrued and unpaid amounts provided for in the original decree.

— J. H. Applegate and ' W. IT. Fai-iey, Judges S. D. Alexander was owner of the north two thirds of Lot 5 in Block 17 in Winterset, and, on November 7, 1911, by his attorney in fact, contracted to convey it to Cornell, McMillan and Bertholf, acting for the plaintiff, for the considera! ion of $1,000 in cash and $7,000 upon the conveyance of (he property, to be made after December 1st of the same year.

Action to remove an administrator on the ground that the deceased was not a resident of the county making the appointment, at the time of his death. Plaintiff’s petition was dismissed in the court below, and he appeals.

— Lawrence DeGraef, Judge. Action for damages for personal injuries sustained by the plaintiff while working for the defendant in a manhole. The injury resulted from the partial falling of a bucket of cement. At the close of plaintiff’s evidence, there was a directed verdict for the defendant. The plaintiff appeals.—

Mullan, Judge. Action to quiet title to real estate, and to remove the cloud of a judgment held by the defendant the Winthrop State Bank, against the former owner of an interest in the real estate involved.

— Geo. W. DuNham, Judge. Appeal from an order of the district court fixing a valuation upon certain shares of corporation stock for the purpose of assessment and taxation. The proceeding originated with the county auditor, who listed and assessed' such shares against the appellant as omitted property under the provisions of the statute. From such action’ of the auditor, the appellant appealed to the district court, where he obtained partial relief.

— R. P. Howell, Judge. Cora E. Meginnes filed a claim for amount alleged due on a note given to her by decedent shortly before his death. Trial resulted in a judgment as prajmd. The executrix and the administrator with the will annexed appeal.—

— R. M. Wright, Judge. Action against the administrator and widow for specific performance of a contract of the decedent to convey to the plaintiff certain real estate. There was a decree for the plaintiff, and the defendant appeals.

<p>EVIDENCE: Best and Secondary — Non-original Entry Books — Be-1 freshing Memory. A non-original entry book, the accuracy of which is verified, may be used by a witness to refresh his memory, and is admissible in connection with the testimony of the witness.</p> <p>EVIDENCE: Opinion Evidence — Custom and Usage. Evidence re-</p> <p>2 viewed, and held wholly insufficient to establish a custom or general usage among dealers in goods sold on the installment plan, to empower their superintendents to employ livery service at the expense of such dealers.</p>

— Franklin 0. Platt, Judge. Action to recover damages for personal injury. Verdict for the plaintiff. Motion for a new trial by the defendant. New trial granted. Plaintiff appeals.

— W. H. McHenry, Judge. Action for damages for personal injuries. At the close of plaintiff’s evidence, there was a directed verdict for the defendant, and the plaintiff appeals.

— C. A. Dudley, Judge. Action upon a certificate - of accident insurance to recover a death benefit. The issues were made by a general denial. At the close of plaintiff’s evidence, there was a directed verdict for the defendant. The plaintiff appeals.—

— W. H. Fai-iey and J. H. Applegate, Judges. Action for damages resulted in judgment for plaintiff, and thereafter, a petition for new trial was dismissed. The defendant appeals.

— W. H. McHenry, Judge. Action to recover for the value of property alleged to have been converted by defendant, resulted in the judgment as prayed, though in a lesser amount. Defendant appeals.

<p>Appeal from Woodbury District Court. — John W. Anderson, Judge.</p> <p>Action to recover damages for personal injury. Verdict and judgment for the plaintiff. Defendant appeals.—</p>

— TV. D. Boies, Judge. Proceeding in probate wherein the widow of the decedent made an application that she be allowed to withdraw her previous election to take under the will, and that she be permitted to claim her distributive share under the statute. The petition was resisted by the executor of the estate and the residuary legatee. The trial court sustained the widow’s petition and set aside her election. The other parties have appealed.

<p>HIGHWAYS: Establishment — Notice—Defective Service — Appear-1 anee — Effect. Defective service of the notice relative to the establishment of highways is rendered harmless by the appearance of the one defectively served. Section 1495, Code Supp., 1913.</p> <p>HIGHWAYS: Establishment — Surveys, Etc. — Non-necessity. No 2 survey or marking out is necessary when the precise location of the road is designated. So held when the location was designated as “on named section lines, and of the statutory width,” though the section lines did not exactly join. Section 1489, Code, 1897.</p> <p>HIGHWAYS: Establishment — Location—Non-joining Section Lines 3 —Presumption. Where the petition, report and order called for a continuous road along a north and south line lying between four sections, and said line between the two north sections did not exactly join with the line between the two south sections, it will be presumed: (a) That the said lines are already connected by an east and west road; or (b) that the connection between the two non-joining ends is to be made on (.he east and west section line.</p> <p>HIGHWAYS: Establishment — Location—Mile Posts, Stakes, Etc.— 4 Non-necessity. Mile posts, stakes, etc., are only required where surveys are required. Section 1490, Code, 1897.</p> <p>HIGHWAYS: Establishment — Bridges—Provision Non-jurisdiction-5 al. The statutory provision for a report as to the number and cost of bridges necessary on a proposed highway is directory only. Section 1493, Code, 1897.</p> <p>HIGHWAYS: Establishment — Conditions. Conditions other than 6 technical payment of damages awarded may be exacted as a condition to the establishment of a highway.</p> <p>HIGHWAYS: Establishment — Conditions Imposed — Certainty Re-7 quired. The orders of the board of supervisors, in establishing a highway, to the effect that the same be placed in a certain condition, will not be construed as placing such burden personally upon the petitioners, in the absence of clear and definite language to that effect.</p> <p>HIGHWAYS: Establishment — Conditions—Delay in Fulfilling— 8 Effect. Delay on the part of petitioners in paying the damages consequent on the establishment of a highway, as required, in no wise affects the legality of said establishment when the delay is occasioned by litigation concerning the amount of said damages.</p> <p>HIGHWAYS: Establishment — Conditions—Failure to Fix Time 9 Limit. The statutory requirement that the board fix a day on which the conditions imposed on the establishment of a highway be complied with, is directory. Sec. 1502, Code, 1897.</p> <p>STATUTES: Construction — Mandatory or Directory. Principle 10 recognized that statutes fixing the date for the doing of something which may as effectually be done at any other time, and merely for the orderly transaction of business, are usually regarded as directory.</p> <p>HIGHWAYS: Establishment — Location—Fatal Indefiniteness. • An 11 order establishing a highway must locate the highway with precision. An order accompanied by no plats or surveys, and from which it is utterly impossible to determine the location, is fatally defective.</p>

— Hubert Utterback, Judge. Action in equity to enjoin an alleged liquor nuisance. There was a decree for plaintiff, and defendants appeal. — ■

■ Appeal from PolJc District Court. — Hubert Utterback, ■ Judge.

Appéal from Powesliiek District Court. — Henry Silwold, Judge. Action in equity to reform a written lease, .and for general equitable relief. There was. a trial upop the merits,, and a decree dismissing plaintiff’s petition. Plaintiff appeals.

<p>BASTARDS: Evidence — Degree of Proof — Corroboration. Princi1 pie recognized that, in a prosecution under the Bastardy Act, corroboration of the complainant is not absolutely necessary.</p> <p>BASTARDS: Evidence — Sufficiency. Evidence reviewed, and held 2 sufficient to sustain a verdict of guilt 'in bastardy proceedings.</p>

— A. N. Hobson, Judge. Action to enjoin defendant from keeping and selling intoxicating liquor in a building on the premises described in the petition. A trial was had in vacation as to one of the defendants, Len Silka, on the application for a temporary injunction on August 19, 1916.

— K. E. Willcockson, Judge. Suit in equity for the foreclosure of a mortgage against the sanatorium company. Hollingsworth, as administrator, and others, intervened, claiming that they, or the estate which they represent, hold' a lien prior to plaintiff’s mortgage, and they asked that their prior lien - be protected. The-trial court, upon issues joined, granted-the relief prayed by plaintiff,' and dismissed the petition of intervention, and interveners appeal.

<p>Appeal from Union District Court__Thus. L. Maxwell, Judge.</p> <p>Action to recover the possession of a certain trad of land in Union County. Defendants claim to be the owners of the land by purchase from one J. H. Garrells, the prior owner thereof, and aver that plaintiff had knowledge and notice of this purchase when he acquired his title. The case was tried to the court on these issues, resulting in a judgment dismissing plaintiff’s petition, and he appeals. — ■</p>

<p>Appeal from Washington District Court. — Henry Silwold, Judge.</p> <p>Action to recover damages for defendant’s failure to comply with an agreement to exchange certain lands in Kansas for some personal property, and money which plaintiff delivered and paid to the defendant. Defendant’s answer was a general denial, and a plea that he never agreed to give plaintiff a deed to Kansas land, and that, while he received certain property from plaintiff, it was practically worthless, and that all defendant undertook to do was turn plaintiff ■ over to one Fletcher, Fletcher being authorized by the agreement to subrogate plaintiff to the rights which he (defendant) .had, if any, to the Kansas land. Upon the issues joined, the case was tried to a. jury, resulting in a verdict for plaintiff in the sum of $200. Plaintiff remitted all of this verdict in excess of $180, and judgment was entered for this latter amount. Defendant appeals.</p>

— K. E. Wtillcockson, Judge. Action to recover damages for injuries to an'automobile, due to the alleged negligence of the defendant in permitting an obstruction in one of its streets. A jury was called, and at the conclusion of the plaintiff’s -testimony, defendant filed a motion for a directed verdict. This motion was 'sustained, and judgment entered against plaintiff for costs, and he appeals.

— Thomas L. Maxwell, Judge. Suit in equity to set aside a judgment of the district court of Clarke County, in an action of replevin brought by defendant against the plaintiff herein. The trial court sustained a demurrer to the petition as amended, and plaintiff appeals.

<p>Appeal from Clinton District Court'. — M. F. Donegan, Judge.</p> <p>' Action at law to recover upon contract for services rendered. Verdict and judgment for plaintiff, and defendants appeal.</p>

<p>COVENANTS: Covenants of Title — Covenants Against Incum1. Frances — Special Assessments — Deeds. Contract covenants against “liens or incumbrances,” and escrow deeds executed with like covenants or warranties, are not breached by the subsequent levy of special assessments prior to the release of the deeds from escrow.</p> <p>PRINCIPLE APPLIED: A vendor, as part of an exchange, agreed to convey lands “free and clear of all liens and incumbrances,” except a named mortgage, and to furnish an abstract showing good, merchantable title, “subject only to the mortgage lien above described.” Deed was executed accordingly, and placed in escrow to be delivered March 1st following. Some four months subsequent to the contract, and some two months ■prior to March 1st, a special assessment of $970 was levied upon the land by reason of a public drainage improvement thereon. .The deal was closed, under agreement that the controversy as to who should pay this special assessment should be litigated. Held, neither the contract nor the warranty was breached.</p> <p>TAXATION: Nature of Taxes — Special Assessments — Distinction. 2 Distinction between “taxes” and “special assessments” discussed.</p>

— John F. Talbott, Judge. ' Action in equity for the partition of real estate. There was a decree as prayed, and defendants appeal.

— John F. Talbott, Judge. Action in equity for divorce. Upon hearing the evidence, the trial court dismissed the petition, and the plaintiff appeals.

<p>MECHANICS’ LIEN: . Eight to Lien — Homestead—Wife as Stranger 1 to Contract. A homestead is subject to a mechanics’ lien for materials, etc., furnished under a contract with the owner, even though the spouse of the owner does not join in said contract. See Sections 2974, 2975, Code, 1897.</p> <p>MECHANICS’ LIEN: Nature, Grounds, Etc. — Constitutionality. 2 The mechanics’ lien statute is not unconstitutional because giving liens to subcontractors who bav.e no contract relations with, the owner.</p> <p>CONSTITUTIONAL LAW: Obligation of Contracts — Creation of ' 3 Liens. Freedom of contract does not prevent the regulation of contracts and the imposition of liens by statutes which furnish due protection to all parties. So held under the mechanics’ lien statute.</p>

<p>Appeal from Fremont District Court. — A. B. Thornell, Judge.</p> <p>Suit in equity for an accounting and for general equitable relief. There was a decree as prayed. The defendant Butterfield appeals.</p>

— Hubert Utterback, Judge. Suit in equity against the city of Des Moines to cancel a certain assessment for street improvements, on the ground that the city had no power to make the same, and that such assessment was void. Berry hill joined with the plaintiff as intervener. The trial court entered a decree cancelling the assessment as to the intervener and dismissing the petition as to the plaintiff. The plaintiff has appealed.

— H. E. Fry, Judge. Appeal in a drainage proceeding. In the district court, the respective plaintiffs were appellants from an order entered by the board of supervisors in a drainage proceeding. The two appeals were consolidated, and the trial court sustained the appeal of each plaintiff. From such order of the trial court, the defendants have appealed.

— W. H. McHenry, Judge. ' A judgment relied upon as being an.adjudication was so corrected in chancery as that it was no longer available to defendant as an adjudication. From this correction, defendant appeals.

<p>JUSTICES OF THE PEACE: Appeal — Transcript, Verdict as.Part 1 of — Construction. The verdict of the jury in justice court, in the absence of any docket entries thereon by the justice, may be resorted to, on appeal, to determine whether the defendant on the trial before the justice had actually filed a counterclaim.</p> <p>JUSTICES OF THE PEACE: Appeal — Non-effect of Errors Before 2 Justice. On appeal from a judgment of a justice of the peace, it is quite immaterial (a) whether the parties, on the trial before the justice, acquiesced in oral pleadings when they should have been in writing and verified, or (b) whether the justice erroneously permitted oral pleadings when they should have been in writing and verified.</p> <p>JUSTICES OF THE PEACE: Appeal — Errors or Omissions in Docket 3 Entries — Correction. On appeal from a judgment of a justice of the peace, errors or omissions in the docket entries of the justice may be corrected or supplied by the district court. Sec. 4557, Code, 1897.</p> <p>JUSTICES OF THE PEACE: Appeal — Transcript—Omission in 4 Docket Entries — Affidavits—Competency. On appeal from a judgment of a justice of the peace, affidavits are competent to show an omission in the docket entries of the justice. So held where the docket entries failed to show the filing of a counterclaim by defendant.</p>

— C. W. Vermilion, Judge. Ti-iis case involves a controversy over a line fence. Opinion states the facts. Decree for the defendants in the court below. Plaintiffs appeal..

— Henry Silwold, Judge. Indictment charging defendant with the crime of assault with intent to inflict great bodily injury upon one Harry Horn, by operating and running an automobile over said Horn with specific intent to inflict a great bodily injury upon him and otherwise maltreat him, contrary to statute. Defendant appeals from a conviction under this indictment. —

— E. B. Woodrupf, Judge, Domonick Gross filed his final report as administrator of the estate of Henry Stude, deceased, March 27, 1915.

— R. M. Wright, Judge. Action to quiet title and cancel certain deeds, on tlie theory that the deed which is the basis of all conveyances is a forgery. Decree for the plaintiff in the district court. Defendants appeal.

— E. G. Albert, Judge. Action to recover from the defendant the sum of $1,000 as having been paid to the defendant by the plaintiff by mistake. The case was brought and tried in equity. The trial court found for the plaintiff, and the defendant appeals.

A-ppeal from Lee District Court. — H. Bank, Jr., Judge. Appeal from the action of the district court in a proceeding in certiorari instituted in said court, involving the legality of the .action of the board of supervisors of Lee County in the establishment of a certain highway. Upon full hearing in the district court, the writ of certiorari was dismissed. Plaintiff appeals to this court. —

W. Vermilion, Judge. Action to recover rent and enforce a landlord’s lien. Judgment for the plaintiff in the district court for part of the amount claimed. Opinion states the facts.

— Oscar Hale, Judge. This is an action at law to recover damages for an alleged breach of the provisions of a written contract to convey to plaintiffs certain real estate, and, in . a second count, the damages resulting from an alleged failure of appellee to perform the duties imposed upon him by law as a ■ trustee holding legal title to said real estate, pending the date fixed for the execution and delivery of a deed of conveyance.

— W. S. Ayres, Judge. Certiorari in the nature of an appeal from the judgment of the district court of Polk County, finding the plaintiffs herein guilty of contempt in the violation of a liquor injunction decree previously entered against them.

— George Jbpson, ■ Judge. This case involves a controversy over a division line. Plaintiff claims the line by acquiescence. Decree for the plaintiff. Defendants appeal.

— O. D. Wheeler, Judge. Action by the plaintiff against the sheriff to recover the value of an automobile alleged to be the property of the plaintiff, and wrongfully attached by the sheriff as the property of another. The real defendant in interest is Florine, the attachment creditor. The debtor in the attachment suit was Gray, an automobile dealer. Fpon trial to a jury, there was a general verdict and special findings for the plaintiff, and the defendant appeals.

— E. G. Albert, Judge. Suit in equity by one partner against the other for a partnership accounting and for a dissolution of the partnership. Third parties are made defendants as alleged custodians of the partnership funds, or as parties having wrongfully appropriated such funds to the discharge of the individual debts of one of the partners. There was a decree dismissing the petition, and the plaintiff appeals.

'Appeal from Calhoun District Court. — M. E. Hutchison, Judge. Action for the price of a corn hinder resulted in a verdict for plaintiff. On motion of the defendant, the verdict was set aside and a new trial ordered. The plaintiff appeals.

— Hubert Utterback, Judge. Action in equity, by which plaintiffs seek to enjoin the officers of defendant city from levying a paving assessment. Appellees are property owners along Grand Avenue in the city of Des Moines, owning property abutting on or lying within 300 feet of either side of Grand Avenue, between the west line of Nineteenth Street and the east line of Twenty-eighth Street. The defendants are officers of the city, and the contractor is also made a defendant.

— M. E. Hutchison, Judge. This is an action to construe a will and to quiet title in the plaintiffs to certain real estate. The plaintiffs are sons of the testatrix, and the defendants are her other children and children of a deceased son. The children of the deceased son are Leo Austin Elvin, Winifred Elvin and Cecil Elvin. These are minors, aged, respectively, 12, 10 and 9 years. They are also nonresidents.

— Milo P. Smith, Judge. The action is for damages, actual and exemplary, for assault and battery. There was a trial to a jury, and a verdict and judgment for plaintiff in the sum of $1,500. Defendant appeals.

— W. S. Ayers, Judge. Suit in equity to restrain defendants, and in effect the city of Des Moines, from taking further steps to open a street, and from expending any money therefor. A demurrer to the petition was sustained, the petition dismissed, and plaintiff appeals.

— W. S. Ayers, Judge. Action upon a mining lease to recover the stipulated payments provided therein. There was a trial to the court without a jury, and a judgment for the plaintiff, and the defendant appeals.

'Appeal [rom Grinnell Superior Court. — P. G. Norris, Judge. Action to recover the amount alleged to be due for personal services. General denial on the part of the defendants. A special plea of accord and satisfaction. Judgment for the defendants in the court below, based on the finding of accord and satisfaction. Plaintiff appeals.

— P. G. Norris, Judge. Appeal by plaintiff from an order of the lower court in sustaining defendant’s motion to strike certain parts of plaintiff’s amended petition, and in sustaining defendant’s motion for a more specific statement. —

— George W. Dunham, Judge. In the district court, this was an appeal by the plaintiff from an order of the city council of Waterloo, assessing against her property a part of the cost of a-certain sewer. She denied- liability for any part of such cost, on the ground that she received no benefit therefrom. Her contention was sustained in the district court, and a cancellation of the assessment was ordered.

— M. F. Edwards, Judge. Action to construe a will. The question presented is whether the children of the testator took a vested or a contingent remainder at the time of his death. The remainder was subject to the life estate of the widow. One son died without issue, after the death of the testator, but before the death of the widow. The deceased son left a widow surviving him.

<p>EXECUTORS AND ADMINISTRATORS: Claims — Amendment After Expiration of Time Limit. A claim in probate, based on an express promise to pay for certain services, and duly filed within the statutory time, may, after the time for filing claims has elapsed, be so amended as to enable claimant to recover, either on the express promise or on a quantum meruit.</p>

— G-eorge W. Dunham, Judge. This action, tried as in equity in the district court, is an appeal from a decree of the district court of Black Hawk County, Iowa, rendered on the 6th day of October, 1914, cancelling a special assessment against Lots 1, 2, 3, 4 and 5 in Block 42, Lots 1, 2, 3, 4 and 5 in Block 55, Lots 6, 7, 8, 9 and 10 in Block 58, Lots 6, .7, 8, 9 and 10, in Block 59, all in B'aker’s Addition to West Waterloo, Iowa, levied by the city council of the city of…

— E. G. Albert, Judge. The board of said county established a drainage district known as No. 198. The appellants, 23 in number, filed objections before the board of supervisors to the establishment of said district. The objections were not all on the same grounds. Some of them raised certain questions, and others different questions. The objection of some of the appellants covers the question presented here for determination.

<p>MINES AND MINERALS: Leases — Actions For Royalty — Burden of Proof. A 20-year coal mining lease, wherein lessee, with no surface rights, agreed to pay, annually, after 3 years, the sum of $1,000 as a minimum annual royalty, does not impose on the lessor the burden of proof to show, as a condition to the recovery of such minimum royalty, that the premises contain merchantable, minable or workable coal.</p>

<p>FRAUDULENT CONVEYANCES: Grounds of Invalidity — Intent— —Knowledge of Debtors’ Involved Conditions — Evidence. Evidence of quite involved transactions, attending the giving of deeds and mortgages, reviewed, and held to present the case of a bona fide creditor seeking in good faith to protect his interest, without knowledge of the debtors’ financial obligations to other creditors.</p>

— EL K. Evans, Judge. These two cases were brought in equity to foreclose mortgages on real estate. By agreement, the two cases were tried together in the district court, and are so presented here. The defendants alleged payment to the First National Bank of Corning, Iowa, which defendants allege was the agent for plaintiff, and also pleaded by way of estoppel that plaintiff could not now claim that the bank did not have authority to receive payment.

<p>HIGHWAYS: Law of Road — Operating Automobile on Left-hand 1 Side — Negligence. Principle recognized that one who operates his automobile on the left-hand side of the highway may be guilty of negligence. Section 1571-ml8, Code Supplement, 1913.</p> <p>HIGHWAYS: Law of Road- — Driving on Left-hand Side — Effect. 2 One may drive his horse in any part of the street, provided that, upon meeting another coming from the opposite direction, he give one half the traveled way and keep to the right of the center thereof.</p> <p>HIGHWAYS: Law of Road — Applicability of Statute. The statute 3 (Section 1569, Code Supplement, 1913) requiring persons on horseback or in vehicles, meeting each other on the highway, to give one half of the beaten path by turning to the right, applies only when travelers on a single highway approach each other from opposite directions.</p> <p>NEGLIGENCE: Contributory Negligence — Disregard of Known 4 Danger. One who has adequate knowledge of the danger threatening him by reason of the negligent acts of another, and makes no effort to avoid such danger, though having ample time to do so, is guilty of contributory negligence. So held where one made no effort to avoid a negligently operated automobile.</p>

— Henry Sijowold, Judge. This is a proceeding to probate tbe will of Wyatt Adkins, deceased. There was a directed verdict for proponent, admitting the will to probate. The contestants' appeal.—

— J. B. Rockafellow, Judge. Plaintiff alleged in Ms petition that, during a period of 7 years prior to January 1, 1911, he was sheriff of Page County, and as such was in charge of the county jail and custodian of the prisoners committed thereto — ■ , ■ “That, from the beginning to the end of said period, he waited on said prisoners, the same being equivalent to 7,006 days for one prisoner,. as shown by tabulated statement hereto annexed, marked Exhibit ‘A’ and made a part of…

— Wm. H. McHenry, Judge. This is an action or petition for new trial, brought by tlie defendant, appellant, to set aside a decree of divorce granted against lier, and that she be permitted to file her answer to plaintiff’s original petition and to make defense in the divorce case, and for all other and proper relief in the premises, for the reason that she claims that said decree is invalid because obtained by fraud.

— W. S. Ayers, Judge. This is an appeal from a judgment of said district court directing said Civil Service Commission to reinstate the plaintiff, a policeman, whom said commission had discharged, and who, as an honorably discharged soldier, was within the so-called Soldier’s Preference Law.

- — -A. B. Ti-iornell, Judge. Action to recover damages for personal injuries. Verdict and judgment for the plaintiff. Defendant appeals.—

'Appeal from Grundy District Court. — George W. Duni-iam, Judge. Action for damages for personal injuries alleged fo have been sustained in a collision between plaintiff’s motorcycle and the defendant’s automobile. At the close of plaintiff’s evidence, there was a directed verdict for the defendant. The plaintiff appeals.

— W. D. Boies, Judge. Action by the plaintiff, as a vendee of real estate, to recover from the defendant, as vendor thereof, the amount of taxes paid by the vendee which became a lien upon the real estate after the execution of the contract of sale, but before the execution of the conveyance and before the delivery of possession. There was a judgment for plaintiff, and the defendant has appealed.

<p>Appeal from Jones District Court. — William N. Trrichler, Judge.</p> <p>Suit to recover damages for injuries to plaintiff’s decedent. Verdict directed for defendant. Plaintiff appeals.—</p>

— N. J. Lee, Judge. Action to recover damages for an alleged libel. Opinion states the case. Demurrer to petition sustained. Plaintiff elected to stand on his petition. Thereupon, his petition was dismissed, and judgment entered against the plaintiff for costs.

— E. B. Wood-ruff, Judge. Mary Ransom and Amasa Bybee applied for an order to probate an alleged will of Ann Bybce’s. The application was denied, and proponents appeal.

<p>BOUNDARIES: Description — Waters and Watercourses — “Bank” 1 of Stream — Deeds. A deed of land “lying and being on the right bank of White Breast Stream (or in the bend thereof)” conveys to the center of the stream, the grantor so owning, and.the deed being silent as to any intention to reserve the strip lying between the top of the bank and center of the stream, or any part thereof.</p> <p>VENDOR AND PURCHASER: Quantity of Land — Deficiency—Evi2 dence. Evidence reviewed, and held to show that the computation made on a survey was so imperfect as not to establish the claim that there was a deficiency in the acreage called for by the deed and bond.</p>

<p>Appeal from Pottawattamie District Court. — Thomas Arthur, Judge.</p> <p>Action to construe a will. Decree for plaiutiff in the district court.</p>

— H. E. Fry, Judge. Action to recover value of stallion, alleged to have been converted by defendant to his own use resulted in judgment against defendant, from which he appeals.

— Ralph P. Howell, Judge. Action involving the contest of a will, based on the ground that tlie same was procured by undue influence. Verdict and judgment setting aside the will. Defendants, proponents, appeal.'

— Edward M. McCall, Judge. Habeas corpus proceedings in behalf of Selina Eisting by her father resulted in an order restoring the child to the custody of defendants. The plaintiff appeals.

<p>PLEADING: Defense in General — Failure to Question Insufficient 1, 5 Defense — Effect. A legally insufficient defense, unquestioned by motion, demurrer, or reply, is good.</p> <p>BILLS AND NOTES: Action — Defense—Payment. Evidence re-2 viewed, and held sufficient to show that the notes sued on had been pártially paid.</p> <p>EVIDENCE: Parol as Affecting Writing — Agreement as to Endorse-3 meats. A promissory note is in no wise varied by oral evidence to the effect that certain funds, belonging to the makers, and to be subsequently collected by the payee, should be endorsed on the note.</p> <p>EVIDENCE: Admissions — Books of Accounts of Adverse Party. 4 Entries in the books of accounts kept by the adverse party, and in the nature of admissions on a material issue, are admissible.</p> <p>PLEADING: Defense in General — Failure to Question Insufficient 1, 5 Defense — Effect.</p>

— Chas. A. Dudley, Judge. Suit in equity to recover damages for alleged breach of a contract of insurance, and praying an accounting for the purpose of determining the amount of damage. The trial court dismissed the petition, on the ground that no breach by the defendant was shown. The plaintiff appeals.

— Henry Silwold, Judge. Action to recover damages for alleged fraud and misrepresentation in exchange of properties. Judgment for plaintiff in the court below. Defendant appeals.

— C. B. Robbins, Judge. This cause was fully submitted to a justice of the peace on Thursday, July 24, 1913, and he entered judgment therein on Monday, July 28, 1913. The question we have is whether this entry was made so late as that the judgment is void.

— E. B. Woodruff, Judge. Appeal from special assessments made against abutting property for street improvements.. Both parties appeal.

<p>JUDGMENT: Action on Judgment — Foreign Dormant Judgments. 1 A foreign judgment, dormant and nonrevivable, but not barred by the statute of limitation of such foreign state, will support an action in this state at any time within 20 years from its date.</p> <p>JUDGMENT: Action on Judgment — Defense—Fraud—Evidence— 2 Sufficiency. Evidence reviewed, in an action on a judgment, and held ■ insufficient to show that defendant was fraudulently-induced not to make defense to the original action.</p> <p>JUDGMENT: Opening or Vacating — Justifiable Judgment Procured 3 by Fraud. Principle recognized that, in the absence of any showing of defense to a judgment, the same should not be disturbed, even under a plea of fraud in procuring it.</p> <p>COSTS: Security for Payment — Substitution of Resident Plaintiff. 4 The good-faith substitution of a resident plaintiff in lieu of a nonresident one, subsequent to the filing of a motion for cost bond, but before ruling thereon, justifies the overruling of said motion. So held where an .administrator was so substituted. Sec. 3847, Code, 1897.</p>

— Lorin N. Hays, Judge. The decedent, A. C. Hickman, was surety on a note given by one L. L. Dunham to the appellant bank. Upon suit brought by the bank to recover judgment on said promissory note, the administratrix of Hickman contended that her decedent, being a surety on the note, was released from liability because the plaintiff! had failed to comply w.ith the requirements of Sections 3064 and 3065, Code, 1897.

— E. G. Albert, Judge. Action for boring and casing four wells resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals.

<p>NEW TB.IAL: Grounds — Perjury. Perjury on the material issues of a cause is not ground for-a new trial.</p>

— George H. Castle, Judge. Action to recover damages for personal injury occasioned by falling over an obstruction on- a public street. Verdict and judgment for tbe plaintiff. Defendant appeals.

— W. S. Hamilton, Judge. Action to recover damages for personal injuries suffered by appellant. A verdict was directed against him, and he appeals.

B. Rockafellow, Judge. Application to remove an executor. Opinion states the facts. Judgment for the defendant in the court below. Plaintiff appeals.

— J. B'. Rockafellow, Judge. Action in equity to subject certain property to the payment of certain judgments held by the plaintiff. Defense, that the property is the homestead of the defendant. Reply, that the homestead character did not attach until after the debt accrued on which the judgments were founded. District court dismissed plaintiff’s petition. Plaintiff appeals.

— J. H. Applegate, Judge. Action for damages consequent on the death of Helen Rolfs, caused by a collision with defendant’s automobile. From judgment for defendant, the plaintiff appeals.

<p>Appeal from Ch&rolcee District Court. — W. D. Boies, Judge.</p> <p>Appellees had judgment at law fqr attorney fees. Defendant appeals. —</p>

— Gi-ias. E. Albrook, Judge. Verdict and judgment against appellant for wrongfully cutting and injuring shade trees on property of appellee.

— R. M. Wrigi-it, Judge. Action for damages consequent on change of grade resulted in judgment against the defendants, from which they appeal.

— John L. Kamrar, Judge. Motion to set aside a judgment entered against the plaintiff. Motion overruled. Plaintiff appeals. Opinion states the 'facts.

— Charles W. Mullan, Judge. The parties were divorced in 1907. A stipulation was entered into in connection with the decree of divorce. This action is based upon that stipulation, possibly upon the stipulation and the decree. In this action, appellee seeks to hold appellant liable on account of certain expenditures made by her in the education and maintenance of the child of the appellant. Of the allowance made by the trial court, the appellant here and now complains.

'Appeal from Muscatine District Court. — Wm. Theophilus, ' Judge. 'Action in equity to quiet title to a portion of tbe right of way of plaintiff railway company within the corporate, limits of the city of Muscatine. There was a decree quieting in plaintiffs the title to all the real estate involved in the suit.

<p>Appeal from Black Hawk District Court. — H. B. Boies, Judge.</p> <p>Action for damages resulted in judgment for plaintiff, ■ from- which defendant appeals.</p>

'Appeal from Jasper District Court. — K. E. Willcockson, Judge. • Action in equity for partition of real estate. Defendants’ demurrer to the petition having been sustained, plaintiff appeals.

— Milo P. Smith, Judge. Defendant was convicted of the crime of being armed with-and having a revolver concealed upon his person, and was sentenced to an indeterminate term in the penitentiary at Fort Madison.

— W. S. Hamilton, Judge. Action for damages for alleged injuries to a right of redemption in certain real estate. There was a general denial by the defendant. The jury rendered a verdict for plaintiff for $53,000, and the defendant appeals.

— Ralph P. Howell, Judge. Action to recover damages for personal injury. Opinion states the facts. Verdict and judgment for the plaintiff in the court below. Defendant appeals.

— Milo P; Smith, Judge. Action against defendants for the alleged conversion of a promissory note. Trial to a jury, and a verdict and judgment against both defendants. The defendant William Crosby appeals.

— O. G; Lee, Judge. ■ Suit for an accounting between the parties and to settle the title to lands acquired by each. On hearing, decree was entered, from which both parties appeal, that of defendant being first perfected.

— Thomas Arthur, Judge. Action for balance owed on shoes purchased. Defendant pleaded rescission and return of a part thereof, and claimed damages consequent on an alleged breach of warranty on the remainder. There was a verdict for less than the amount sued for, and judgment thereon. The defendant appeals.

— A. N. Hobson, Judge, Action at law to recover damages. The alleged cause of action is stated in two counts: First, that defendant wrongfully alienated the affections of plaintiff’s wife; and, second, that defendant seduced and1 debauched plaintiff’s wife. On trial in the district court, the jury found for the plaintiff on the first count or charge only, and assessed his recovery at $1,000. From the judgment entered on this verdict, the defendant appeals. —