Volume 181 — Iowa Reports

<p>PLEADING: Amendments — Shifting From Equity to Law — Effect. 1 It is permissible, in a purely equitable action, to so amend as to convert the same essential cause of action into one purely at law. Right to change of forum is the only result.</p> <p>CONTRACTS: Action for Breach — Pleading—Express Contract Ex-2 eludes Quantum Meruit. Quantum meruit and evidence thereunder have no place in an action wherein the record shows beyond question that the parties had expressly agreed on the amount of compensation.</p> <p>APPEAL AND ERROR: Review — Presumption—Commingling 3 Quantum Meruit and Express Contract. Prejudicial error results from receiving evidence and submitting instructions as to quantum meruit when the record shows beyond question that the parties had expressly agreed as to the amount of the compensation, even though the court, in submitting the theory of quantum meruit, limited recovery to the amount actually agreed upon.</p> <p>Evans, J., dissents.</p> <p>ESTOPPEL: Grounds of Estoppel — Inconsistent Conduct — Belated 4 Objections. One who has employed an expert to supervise certain work, in accordance with definite plans and specifications, is not estopped from objecting to the sufficiency of the results of such supervision by the fact that he was present during the progress of the work and then made no objections.</p>

— W. H. Fai-iey, Judge- This appeal involves whether the trial court erred in refusing to hold that an earlier judgment estopped plaintiff from maintaining a suit to recover possession of real estate.

— J. W. Anderson, Judge. Action to enjoin the obstruction of a natural watercourse, and the diverting of the natural flow of the water in its natural channel, to the prejudice of the plaintiff. Decree for the plaintiff in the court below. Defendant appeals.

— Henry Silwolb, Judge. Action by the remainderman against a life tenant to recover for taxes assessed but not levied during the existence of the life tenancj. After the expiration of the life tenancy, the plaintiff, the remainderman, paid the tax, and now seeks to recover from, the life tenant the -amount paid. Judgment for the plaintiff in the court below. Defendant appeals. Opinion states the facts.

— IF. II. MoI-Tenry, Judge. Action to recover damages on account of personal injuries suffered by plaintiff while in the employ of the defendant, alleged to have been dne to the negligence of the defendant, to which no negligence on part of the plaintiff contributed. A verdict for defendant was directed, and this is an appeal from that order.

— D. M. Anderson, Judge. Suit to set aside and rescind a contract and deed. A counterclaim was interposed, and, on hearing, both the petition and countercláim were dismissed. Both parties appeal, the appeal oí defendants being first perfected.

<p>EVIDENCE: Presumptions — Confidential Relations — Undue Influ1 ence — Deeds. The presumption that one occupying a close and confidential relation with another exercised undue influence in securing from such other a deed to valuable property, constitutes substantive evidence of the fact, and such presumption is very materially strengthened by a showing: (a) that grantor was very sick at the time; (b) that grantor was without business experience; (c) that the consideration was inadequate; and (d) that the circumstances strongly indicated that grantor was imposed on in the transaction. Evidence reviewed, and held insufficient to overcome the presumption.</p> <p>PRINCIPLE APPLIED: A widow, under a devise from her husband, owned 240 acres of land, of a value of from $36,000 to $48,000. She had no business experience, had no adequate knowledge of values, had never made even the ordinary domestic purchases, seldom left the farm, and had never ridden on a railway train. After her husband’s death, she allowed two of her sons to farm the land absolutely as they saw fit. Even her meager wants were poorly supplied by these sons. She survived her husband ten years, though in constantly failing health. She was very sick and in much pain during the last two months of her life, though rational until shortly before her death. A year prior to her death, she executed a will devising her property equally to her several children, with one exception. One month before her death, she deeded the entire farm to defendant, one of the sons who had farmed the land, for a consideration of $18,000. No security was furnished. Defendant gave his personal note for $18,000 at 4 per cent, due 15 years after date. A printed provision in the note under which the payee might declare the entire sum due for nonpayment of interest, and one in regard to attorney’s fees, were scratched out. The note provided that the mother should have a home on the farm -during her lifetime. Evidently, the defendant had for years been planning to secure this deed. He had offered “to divide” with another heir if the deed could be secured. When the deed was executed, a physician was called in to determine whether the mother was competent to execute it. The ■deed was drawn by an attorney evidently acting in the interest of defendant. His testimony as to what then occurred carried an odor of improbability. Defendant, sinee the father’s death, had been Ms mother’s sole and absolute manager, and had the fullest control of all her affairs.</p> <p>Held, not only to raise a presumption that the deed was secured by undue influence, but that the record did not overcome such presumption.</p> <p>WITNESSES: Credibility- — Interest and Bias — Attorney as Witness. 2 The act of an attorney in combining the character of attorney and witness in a proceeding in which he is actively interested, and in which his testimony is vital, is a positive breach of professional ethics.</p>

— E. M. McCall, Judge. Action for damages consequent from falling because of a defective sidewalk resulted in a judgment for plaintiff. The defendant appeals.

<p>BROKERS: Commission — Procuring Cause- of Sale — Conclusion of 1 Witness. The conclusion of a witness .that he did. not purchase certain property by reason of anything said or done by a broker is not controlling on the question of the efficient cause of the sale if the facts and circumstances relating to what the broker did say and did do fairly justify a different conclusion.</p> <p>BROKERS: Commission — -Attempt by .Broker to Prevent Sale— 2 Failure of Proof — Directed Verdict. A broker who is content to show the reasonable value of services • in fully effecting a sale may .not recover when the record reveals the fact that-the broker carried his services to the point of bringing the seller and 'purchaser together; that thereupon dispute arose between the seller and'the broker as to the commission to be paid in case of a sale, and that -the- broker then made no further effort to effect the sale, but actively attempted to prevent it. This is true because, conceding, arguendo, that he might recover the value of his services up to the point of time when he sought to defeat the sale, the record was barren of evidence of such value. ■ ■</p> <p>EVIDENCE: Opinion Evidence — Value—Improper • Inclusion of 3 Facts. An opinion as to the total unitemized value of several items of services is wholly nullified when it appears that some of the items included in the estimate are material but wholly unallowable.</p>

<p>Appeal from Guthrie District Court. — J. H. Applegate, Judge.</p> <p>Action at law for the recovery of a commission for the sale of real estate. There was a verdict for the plaintiff, and the defendant appeals.</p>

— Charles W. Mullan, Judge. Suit to have certain property decreed to have been transferred to defendant in trust for plaintiff, and that same be turned over to her. Decree was entered against defendant, from which she appeals..

<p>PROCESS: Original Notice — Requisites—Insufficient Statement of Relief Demanded. An original notice of suit which, recites that plaintiff will ask the foreclosure of his mortgage and a personal judgment against the mortgagor only, confers no jurisdiction on the court to decree that a mortgage held by a defaulting defendant, even though in form an absolute deed, is junior to the mortgage held by plaintiff.</p>

<p>Appeal from Harrison District Court.- — A. B. Thornell, Judge.</p> <p>Opinion states the facts.</p>

— Milo P. Smiti-i, Judge. Suit on promissory note executed by tbe defendant, Lottie J. Mohn; defense that plaintiff obtained same by fraud, and that there is no consideration for it. Both plaintiff and defendants moved for a directed verdict. The motion of defendants was sustained, and plaintiff appeals.

— R. M. Wright, Judge. Action in equity to foreclose a mortgage securing a note given by the defendants to the guardian of the plaintiff. The plaintiff prevailed, and defendants appeal.

E. Willcockson, Judge. As appellant states his claim, this is an action at law brought by plaintiff to recover damages for injuries caused by defendant’s negligence and malpractice as a physician and surgeon, and by his fraud and fraudulent deception therein in connection with electric rays, radio-exposures, and use of an X-ray machine and medical services therewith. Plaintiff sued for $50,000.

— R. P. Howell, Judge. - Action at law to recover $318 for services rendered to the defendant by plaintiff in the vaccination of hogs. It was alleged that such was the agreed value of the services. The defendant admitted the services, but denied the value thereof.

— A. B. Thornell, Judge. The will and two codicils were presented for probate. Objections were interposed! by decedent’s son. Probate was denied, and proponents appeal.

A.ppeal from Tan Burén District Gotirt. — 'Seneca Cornell^ Judge. Action in certiorari to test the legality of the action of the board of supervisors in dismissing a petition filed by the plaintiffs asking the re-establishment of a highway. The opinion states the facts.

<p>Appeal from Union Distriot Gourt. — H. K. Evans, Judge.</p> <p>Suit in equity to determine whether or not the appellant, who is the mother of appellee Walter Quick, and was his guardian, should be decreed to pay over the proceeds of land sold by her, the claim being that the land sold belonged to the minor. The court so decreed, and Iva Cretors appeals.</p>

<p>Appeal from Johnson District Court. — R. P. Howell, Judge.</p> <p>Action on the contract resulted in judgment as prayed. The defendants appeal.</p>

<p>Appeal from Davis District Court. — Seneca Cornell, Judge.</p> <p>The question here is whether, where one has intermeddled in an estate left in Kansas, by taking possession of its property and dealing with it as an administrator might, he can, upon making appearance in an Iowa court, be compelled, the rights of creditors not interfering, to account to the heirs for their share in such estate. The trial court held that this might not be done; hence this appeal.</p>

— F. O. Ellison, Judge. Suit for commission alleged to be due for complying with a written contract to obtain a purchaser for land, and securing a contract of sale.

<p>RELEASE: Validity — Fraud—Expression of Opinion. Fraud suf1 fieient to avoid a release may not be built up solely on the good-faith expression of a mere naked opinion.</p> <p>Applied where the one giving the release had full knowledge of his own injury and his ability to do work, where the one charged with fraud did not have such knowledge, but stated to the injured party “that he was making a big fuss over his injury, that said injury was of a trifling nature, and that he ought to have been at work for the past six weeks.”</p> <p>Applied also where the statement was made “that plaintiffs shoulder (which was injured) would be all right.”</p> <p>Applied also where a physician honestly believed and stated that certain injuries were not permanent, etc.</p> <p>RELEASE: Validity — Fraud—Promise of Employments-Breach 2 —Effect. Fraud sufficient to avoid a release may not be predicated on the breach by the one receiving the release of a promise “to take care of or employ” the releasor.</p> <p>RELEASE: Validity — Fraudulent Concealment — Evidence—Suffi3 ciency. The plea that the physician representing the one to whom a release was executed fraudulently concealed from the injured party that said injured party had an incurable dislocation, or one which rendered subsequent dislocations highly probable, is not established by evidence of the condition of the injured party after a second dislocation.</p> <p>FRAUD: Pleading — Avoidance of Release. One seeking to avoid 4 a release of a claim for personal injuries on the ground of fraudulent concealment by those representing the one receiving the release, must, as a condition to the introduction of evidence bearing thereon, specifically plead the ultimate facts constituting such fraud.</p> <p>RELEASE: Validity — Fraudulent Concealment — War of Opinions. 5 The plea of fraudulent concealment in the condition of an injured party, sufficient to avoid a release, wholly fails when the evidence shows nothing more than the expression of an honest opinion by the physician charged with the fraud, and the expression of a contrary and equally honest opinion by other physicians.</p> <p>EVIDENCE: Presumptions — Unsupported Deductions. Quite mani6 festly, one may not make a prima-facie case by drawing conclusions from facts not shown.</p> <p>APPEAL AND ERROR: Harmless Error — Non-Fraudulent Represen7 tations — Reliance—Refusal to Permit Showing. While reliance on alleged fraudulent representations is an important element, yet harmless error results from refusing to permit a party to testify that he did so rely, when the representations are held non-fraudulent.</p> <p>APPEAL AND ERROR:' Issues and Questions in Lower Court— 8 Trial Theory — Counter Theory on Appeal. A trial in the lower court on the theory of delibérale fraud will not be reviewed on appeal on the theory of an honest mutual mistake.</p> <p>PLEADING: Defenses — Inconsistency. Defenses which are not mere-9 ly inconsistent with but destructive of each other are not allowable.</p> <p>RELEASE:” Validity — Mistake—Fact and Opinion Contrasted. Mu-10tual mistake sufficient to avoid a release must be a mistake of a past or present material fact, and not error in opinion respecting future conditions.</p> <p>CONTRACTS: Rescission — Mutual Mistake — -Failure to Tender Con-11sideration Received — Effect. Rescission of a contract on the grounds of mutual mistake demands, as a condition precedent, a return or a tender of return of the consideration received. {Reddington v. Blue, 168 Iowa 34, distinguished.)</p>

<p>Appeal from Woodbury District Court— John W. Anderson, Judge.</p> <p>Action to specifically enforce a contract entered into between the plaintiff and tiie defendant, ivhich contract was executed and delivered in South Dakota, October 29, 1912, covering an exchange of lands in South Dakota, and to recover damages claimed to have been sustained by reason of a breach of the contract by appellant, in case specific performance of the contract could not be had.</p> <p>Defendant denied the validity of the contract and the right to specific performance thereof, because, as he alleged, the contract was signed and delivered upon the condition that the brothers and sisters of defendant, who owned interests in the land to be conveyed to plaintiff, should, after being advised of the contract, approve and ratify the same and join defendant in the conveyance to plaintiff; that his brothers and sisters refused to so approve, making it impossible for defendant to convey the title, in accordance with the contract, and because thereof the contract was never completely delivered; second, that the execution and delivery of the contract were induced by the fraudulent representations of plaintiff with respect to the character and value of the land which he was to convey to the defendant, and that because of this fraud the contract was rendered void and unenforcible; and third, that the appellee’s title to the land was not good and merchantable.</p> <p>At the time of the delivery of the contract, defendant paid plaintiff $1,000 as a part of the consideration for the exchange of the properties, and by cross-petition defendant- sought to recover back from plaintiff the $1,000 so paid, and he asked for general equitable relief. By the terms of the contract, plaintiff sold to defendant 640 acres of land in Lyman County, South Dakota, for a consideration of $27,200, to be paid: $1,000 when the contract was delivered; $4,000 on March 1, 1913, without interest before due; $7,200 on March 1, 1918, with a first mortgage back; ■and the remaining $15,000 to be paid to plaintiff by defendant’s conveying'to plaintiff 160 acres- of land in Clay County, South Dakota; transfer of title and possession to take place March 1, 1913. Under the contract, both parties were to furnish abstracts showing good and merchantable title, and the contract provides:</p> <p>“Time shall be understood to be of the essence of this contract, and failure on the part of said second party (Yerzani) to fulfill all the covenants herein agreed to, shall work -a forfeiture of all his rights hereunder, including the amount or amounts paid prior to that time.”</p> <p>The execution and delivery of the contract are' admitted. Defendant alleges that, within the time specified for performance of the contract, he orally notified plaintiff that his brothers and sisters would not convey, and demanded the surrender and cancellation of said contract and the return of the $1,000.</p> <p>The alleged false representations are that the Lyman County land was first-class farm land in every respect and worth at least $40 an acre. The defendant alleges that he afterwards discovered that the land was infested with noxious and poisonous vegetation, and was unfit for live stock or for the purposes for which he bought the land, and that, by reason thereof, he notified plaintiff that he elected to rescind the contract, and that he would not carry out or perform the same. Defendant further alleges that the title was not merchantable and was encumbered with mortgages, judgments and taxes, and he says that it was orally agreed by and between plaintiff and defendant that the contract should be regarded as rescinded by mutual agreement, and the defendant acted and relied upon the agreement and rescission.</p> <p>Defendant in his counterclaim pleaded the statute of South Dakota, where the contract was executed, which statute is as follows:</p> <p>“Section 2345. Specific perfoi-mance cannot be enforced against a party to a contx*act in' any of the following cases:</p> <p>“1. If he has not received an adeqxiate consideration for the contract.</p> <p>“2. If it is not, as to him, just and equitable.</p> <p>“3. If his assent was obtained by misrepresentation, concealment, circumvention, or unfair practice of any party to whom performance would become due under the contract, or-by any px'omise of such party which has not been substantially fulfilled; or,</p> <p>“4. If his assent was given under the influence of mistake, misapprehension, or surprise, except that where the contract provides for compensation in case of mistake, a mistake within the scope of such provision may be conpensated for, and the contract specifically enforced in other respects, if proper to be so enforced.” Compiled Laws, 1913, Yol. 2, Civil Code.</p> <p>He further alleges that said Section 2345, as above set forth, is now and at all the times in controversy herein was a valid and existing statute of the state of South Dakota, in which state the contract in controversy herein was made, executed and delivered.</p> <p>The trial court dismissed plaintiff’s petition and the defendant’s cross-petition, and rendered judgment against plaintiff for costs. The defendant appeals.</p>

<p>Appeal from Kossuth District Court. — N. J. Lee, Judge.</p> <p>Plaintiff brought this action in mandamus to compel the board of supervisors and auditor to draw a warrant to him in payment of a claim for damages from the establishment of a drainage district, which claim had been filed and allowed. Defendant Senneff filed a cross-petition asking mandamus against the auditor and board to deliver the warrant to him. The district concedes that the award is due to either plaintiff or Senneff, and is ready to pay to the one entitled thereto. After trial on the merits, the court found that the equities were with the defendant Senneff, and the plaintiff appeals.</p>

<p>Appeal from Wayne District Court. — H. K. Evans, Judge..</p> <p>Contest over the matter of selecting an official newspaper. The facts appear in the opinion.</p>

— Thomas L. Maxwell, Judge. On March 15, 1915, Scott Liggett, appellee herein,, was, by written contract, employed by the township trustees of Jackson Township, Wayne County, Iowa, as highway superintendent. A blank form of contract furnished the trustees' by the state highway commission was used. On November 29th following, appellee filed itemized statements of the services rendered, charging therefor on the basis of a schedule set out in the written contract.

<p>Appeal from Humboldt District Court. — E. F. Coyle, Judge.</p> <p>Action for specific performance and for injunction. There was a decree for plaintiff in the first case and for the defendants in the second. The facts will be sufficiently stated in the opinion. Adams et al., defendants in the first case and plaintiffs in the second, appeal.</p>

<p>CRIMINAL LAW: New Trial — Matters Not in Evidence. The act 1 of jurors in stating.and reiterating to their fellow jurors, during their deliberations, as of their own personal knowledge, influential facts which are derogatory to the accused, which are wholly aside the record, and which bear strongly on a material and sharply contested issue, demands the granting of a new trial. So held where jurors had stated that they personally knew that the accused had, for years, been under the influence of intoxicating liquors.</p> <p>HOMICIDE: Manslaughter — Evidence—Reckless Conduct — Intoxi2 cation. On the trial -of an indictment for manslaughter by means of reckless conduct, evidence is admissible that, at the time of the conduct in question, defendant was intoxicated.</p> <p>CRIMINAL LAW: New Trial — Application:—Affidavits—Compe3 tency. Affidavits are competent to show that jurors were improperly influenced by prejudicial evidence which was wholly aside the record.</p>

<p>VENDOR AND PURCHASER: Rescission by Purchaser — Deprecia1 tion in Value. Depreciation in the value of land after the ex-, ecution of a contract of purchase affords no ground for rescission when the depreciation is due to conditions known to exist at the time of the execution of the contract. So held where the depreciation was due to a threatened change in the course of the Missouri River.</p> <p>EQUITY: Decree — Decree Nonconformable with Proof — Court-Made 2 Contract. Decrees in equity must conform to the' proofs. Equity may not make a new contract for the parties.</p> <p>PRINCIPLE APPLIED: A purchaser agreed to pay $15,000 for certain lands. Of this amount, $12,500 was to he in the form of a ten-year mortgage. A $6,700 mortgage, on which a balance of $4,000 was due, existed on the land. The vendor was obligated to remove this lien. The vendor conceived the idea oí himself borrowing the $4,000, and himself executing a mortgage on the land therefor, and then inducing the purchaser to assume said $4,000 mortgage and to execute an $8,500 mortgage, instead of one for $12,500. The purchaser agreed to this scheme, and executed said $8,500 mortgage and took a deed from the vendor, agreeing to assicme a $4,000 mortgage. Through some misunderstanding, these instruments were prematurely delivered. Later, the vendor secured a release of the $6,700 mortgage without making the $4,000 loan. In an action by the vendor for specific performance, the court decreed that the purchaser should execute to the vendor the $4,00.0 note and mortgage which the vendor had omitted to execute.</p> <p>Held, unauthorized.</p>

<p>MUNICIPAL CORPORATIONS: Public Improvements, Etc. — Assess-1 ments — Plans and Specifications — Substantial Compliance. Evidence reviewed, on the issue of substantial compliance with the plans and specifications of a paving' contract, and held to authorize an assessment.</p> <p>MUNICIPAL CORPORATIONS: Public Improvements — Assessments 2 —Presumption. Principle recognized that an assessment of benefits is presumptively correct.</p>

<p>MUNICIPAL CORPORATIONS: Torts — Nuisance—Unauthorized 1 Nuisance by Private Parties. A city which has in no manner assumed jurisdiction or control over a natural watercourse within its corporate limits, is not liable in damages resulting from the acts of private parties in converting said watercourse into a nuisance by -depositing offensive matter in said watercourse without the knowledge or consent of the city authorities.</p> <p>MUNICIPAL CORPORATIONS: Police Power — Manner of Exer2 cise — Abatement of Nuisance. Principle recognized that the statutory power of municipalities (Sec. 696, Code Supp., 1913) to abate nuisances must be exercised solely by means of duly enacted ordinances.</p>

Api)eal from Jackson District Gourt. — Wm. Ti-ieophilus, Judge. Action to recover for services rendered by plaintiff as a surgeon, in treating an employee of defendant’s named Watson, and for services of Dr. Armstrong in assisting, and for hospital charges, the latter claims having been assigned to plaintiff. Trial was had to a jury, and on verdict for plaintiff, judgment was entered. The defendant appeals.

— John T. Moffit, Judge. Action at law upon a promissory note made by tbe defendant Miles and a separate written guaranty thereof by defendant Ford. Tbe guarantor denied liability, upon grounds explained in tbe opinion. On tbe issue joined between plaintiff and Ford, there was a directed verdict for tbe latter, and from tbe judgment entered thereon, the plaintiff appeals .-

<p>Appeal from Tama District Court. — B. F. Cummings, Judge.</p> <p>The opinion state the case.</p>

— J. M. Anderson, Judge. Defendant appeals from a judgment in favor; of plaintiff for $400 damages which, she claims to have suffered because of the icy condition of an alley crossing in defendant city.

— Thomas L. Maxwell, Judge. Suit to enjoin the foreclosure of a chattel mortgage and the sale of property covered thereby. Decree for plaintiff. Defendant appeals.

— W. G-. Sears, ' ’ Judge. Plaintiff in his petition seeks to recover $840 due from the defendants F. R. and Eral Dicks as rent for a farm cultivated by them during the season of 1915.

— W. G. Sears, Judge. Action in replevin. On or about the 12th day oí April, 1915, plaintiff sold to defendant a quantity of furniture, located in a rooming house in Sioux City, Iowa.

— E. G. Albert, Judge. Action to recover damages for an alleged slander. Verdict and judgment for plaintiff, and defendant appeals.

— D. M. Anderson, Judge. Dependant, who was indicted under the provisions of Section 4823 of the Supplement to the Code, 1913, was tried and acquitted by the jury. An instruction requested by the State was refused, and exception taken. The State appeals. The material facts are stated in the opinion.

— D. M. Anderson, Judge. Plaintiff’s principal cause of action is based upon three promissory notes. There was one for $2,000 and one for $500, each dated March 5, 1913, with interest thereon at 7 and 6 per cent respectively, payable semiannually, and, in case of default in the payment thereof when due, both principal and interest to draw interest at 8 per cent. The $2,000 note was made payable to Steckel & Son; the $500 note to William H. Morain.

<p>Appeal from Marshall District Court. — J. W. Willett, Judge.</p> <p>Ti-ie opinion sufficiently states the case.</p>

— Walter Cardell, Judge. Action to recover double damages for the killing of plaintiff’s horse upon the defendant’s track, the said horse having escaped from a pasture, as alleged, to the defendant’s right of way, through a fence which it was the duty of the defendant to maintain.

<p>Appeal from Page District Court. — A. B. Thornell, Judge.</p> <p>The question is whether what is claimed to he property impressed with a spendthrift trust for defendant Frank Williams was rightly subjected to an order in a divorce decree granting plaintiff, who was then the wife of said Williams, alimony.</p>

— W. N. Treichler, Judge. The plaintiff alleges that, when she was 12 years and 6 months of age, she was injured while in the employ of the defendant, working about dangerous machinery belonging to it. The trial court directed a verdict for the defendant, and the plaintiff appeals.,

— C. B. Robbins, Judge. Plaintiff claims to have been injured by a fall upon a sidewalk, caused by alleged negligence of defendant in allowing snow and ice to remain on the walk. She has judgment upon verdict. The appeal presents whether testimony of a physician offered by defendant was rightly excluded for being privileged under the statute.

— F. O. Ellison,'Judge. This is a proceeding in equity to test the legality of an acting school corporation. The plaintiffs are taxpayers, and have sought their remedy by injunction. There was a decree in their favor, holding the organization of the defendant school district to be illegal and void. The defendants have appealed.

<p>CRIMINAL LAW: Jurisdiction — Judgment in Absence of Formal 1 Information. A judgment of conviction for crime entered by .a justice of the peace without formal written information, as commanded by Section 5576, Code, 1897, is a nullity.</p> <p>CRIMINAL LAW: Former Jeopardy — Bad-Faith Prosecution. A 2 collusive judgment of conviction, obtained by the accused himself in order to prevent a prosecution on the merits by the State, is no obstacle to a prosecution.</p>

— J. H. Applegate, Judge. Defendant was indicted jointly with her son on a charge of murder in the first degree. Trial was had to a jury. The jury returned a verdict of guilty of murder in the second degree. Defendant appeals. For reasons pointed out in this opinion, the cause is reversed.

— E. G. Albert, Judge. Indictment charging assault with intent to commit rape. Defendant was found guilty as charged, and appeals.

— William Hutchinson, Judge. The plaintiff is the sister of defendants, John, Henry William and Louis Bader. She alleged in her petition, filed June 29, 1916, that she acquired the two lots in controversy by deed from her mother, Amelia Bader, March 28, 1908, the same being recorded April 29, 1910; that said Amelia departed this life in April, 1910 ;■ and that said defendants claim some interest in the lots. She prayed that her title be quieted.

<p>VENUE: Change of Venue — Residence—Nonresidence of Codefend1 ants. Defendant, in an action on a promissory note, may not have the venue changed to the county of his residence unless he shows that his codefendants are nonresidents of the county where the action is brought. fSec. 3501, Code, 1897.)</p> <p>VENUE: Change of Venue — Fraud in Inception of Contract. “Fraud 2 in the inception of a contract” is ground for change of venue to the county of defendant’s residence only when the contract is specifically performable in the county where action is brought. (Sec. 3505, Code Supp., 1913.)</p> <p>PARTNERSHIP: Representation of Firm — Non-Trading Corpora-3 tions. Circumstances attending the carrying on of a non-trading partnership may show authority in one partner to sign notes in the firm name.</p> <p>TRIAL: Instructions — Applicability to Evidence. Instructions 4 non-applicable to the evidence are properly refused.</p> <p>NEW TRIAL: Grounds — Erroneous Instructions — Failure to Dis-</p> <p>5 cover — Necessary Showing. Objections to instructions, urged for the first time in a motion for a new trial, must be accompanied by something more persuasive than a mere assertion that they were not discovered by the objecting party at the time of trial. There must be a “showing” by means of some evidentiary matter. (Sec. 37'05-a, Code Supp., 1913.)</p> <p>WORDS AND PHRASES: “Show” and “State” Contrasted. “To 6 show” means to demonstrate by satisfactory proof.</p>

— W. H. Fahey, Judge. Action for false representations in the exchange of lands. Trial to a jury, verdict for the defendant, and plaintiff appeals.

— J. H. Applegate, Judge. The petition alleged that, about October 11, 1913, Theodore Hartwell sold and conveyed to E. O. Bailey Lot 8 in Block 16 in Pitzer and Knight’s Addition to Winterset for $300, said Bailey and wife executing, as part consideration, two notes of $100 each, one payable October 5, 1914, and the other a year later; that, about the time the first note became due, Bailey employed Hoy to procure an extension of time or a new loan to take up the said notes;…

Washington District Court. — Henry Silwold, Judge. Action for damages for alleged negligence of the de-. fendant in permitting noxious weeds to grow upon its roadbed, including sand burs and thistles.

— George W. Dunham, Judge. Action to recover for personal injuries. Opinion states the facts. The court below directed a verdict for the defendant. Plaintiff appeals.

Ap>peal from Keokuk District Court. — K. E. Willcockson, Judge. Plaintiff brought this action upon a promissory note. The defendant admitted the execution of the note and pleaded a counterclaim for damages for a breach of warranty ill*the sale of a stallion, the note sued on being given for the purchase price thereof. At the close of the eyideuce, the trial court dismissed the counterclaim and entered judgment for the plaintiff for the amount of the note.

-— K. E. Willcockson, Judge. Suit to set aside conveyance oí certain lands, and to settle title thereto in plaintiff. From decree as prayed, defendant appeals.

— K Action for damages for delay in the shipment of stock. At the close of the evidence, there was a directed verdict for the defendant, and the plaintiff appeals.

<p>WITNESSES: Competency — Immature Children. The ancient 1 and conclusive presumption that a child under the age of nine years was an incompetent witness has no place in our modern law. With us it is simply a fact question whether' the child, irrespective of his age, has, when offered as a witness, sufficient understanding to comprehend that, when he is placed under oath, he is pledged to tell nothing hut the truth and will he punished if he does not. Held, a child of seven years was, under the record, competent.</p> <p>CRIMINAL LAW: Parties to Offense — Accomplices—Immature 2 Children — Corroboration. Mere submission of a child of seven years to a crime against nature gives rise to no presumption of consent on the part of such child to such act; therefore, not being deemed an accomplice from the act of submission, his uncorroborated testimony will support a conviction.</p>

— J. H. Applegate, Judge. This is a suit in equity, in which plaintiffs seek and had injunctive relief to prevent certain of the defendants from acting as officers of the so-called Consolidated Independent School District of Earlham, the prayer for relief being bottomed on the claim that said consolidated district has no legal existence. Defendants appeal.

— C. B. Bradsi-iaw, Judge. This is a mechanics’ lien foreclosure. From the findings made and decree entered, the Farmers Mercantile Company alone appeals.

— M. F. Edwards, Judge. Suit in equity to quiet title to real estate. Trial to the court, petition dismissed, and plaintiffs appeal.

— Hubert Utterback, Judge. Action in equity to have a conveyance of real estate declared a mortgage, and to make redemption therefrom. Decree for plaintiff for the relief asked in part, and both parties appeal. The defendants Cohen Bros., being first to perfect their appeal, will be denominated the appellants.

Ajipeal from Scott District Court. — A. J. House, Judge. Action at law to recover rent alleged to be due plaintiff for property situated in tbe city of Davenport, Iowa, by virtue of a written lease. There was a trial to a jury. The execution of the lease was admitted, and defendant assumed the burden of proof and offered its testimony. Plaintiff moved for a directed verdict, which motion was overruled.

— Seneca Cornell, Judge. Action to recover damages for the death of intestate, which resulted from a fall of slate in defendant’s mine. Trial to a jury, and at the close of all the testimony, the trial court sustained defendant’s motion for a directed verdict. Plaintiff appeals.

— George Jepson, Judge. From a judgment entered by default, and from the court’s refusal to set the same aside and permit defendant to answer, he appeals.

<p>Appeal from Polio District Court. — Hubert Utterback, Judge.</p> <p>Dependant was indicted for perjury and convicted, and appeals. Opinion states the facts.</p>

<p>SUBROGATION: Extent and Limitation of Eight — Doctrine Inap1 plicah-Ie to Primary Liability. The right of subrogation never follows an actual primary liability. In other words, one who pays a debt in performance of his own covenants is not entitled to subrogation. In such case, payment is extinguishment.</p> <p>PRINCIPLE APPLIED: The treasurer of a miners’ union was under a fidelity bond wherein the surety agreed to hold the union harmless for any act of “fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction or misapplication on the part of said employe, directly or through connivance with others.” The union had its money on deposit in a hank. On orders properly drawn, the said treasurer forged the names of the payees; the hank, without authority, paid the orders; and the treasurer wrongfully appropriated the money to his own use. The union brought action on the bond. The surety impleaded the bank, and prayed for judgment against said bank in a sum equal to any judgment which the union might obtain against it (the surety). Held, the surety was primarily liable for the treasurer’s misappropriation, and was not entitled to be subrogated to any right of the union against the bank.</p> <p>PLEADING: Demurrer — Motion as Demurrer. A motion to strike 2 a pleading wholly bad may be treated as a demurrer.</p>

— R. P. Howell, Judge.. Action by the administrator for damages for personal injuries resulting in the death of plaintiff’s intestate. The injuries resulted from a collision at a railway crossing within the village of Ladora. There was a directed verdict for the defendant, and the plaintiff appeals.

— W. H. McHenry, Judge. Action on a policy for loss by burglary. The jury, by direction of the court, at the close of plaintiff’s testimony returned a verdict for defendant. Plaintiff appeals. The facts are stated in the opinion.

— D. F. Coyle, Judge. Action in equitj for rescission and for alternative relief. There was a decree for plaintiff, and defendants appeal.

<p>Appeal from Lee District Oourt. — W. S. Hamilton, Judge.</p> <p>The facts are sufficiently stated in the opinion.</p>

— F. D. Letts, Judge. Action by plaintiff to recover damages alleged to have been sustained by reason of the false arrest and imprisonment of the plaintiff by^Usiendant. Trial to a jury, and verdict and judgment for plaintiff for $175. Defendant appeals.

— -Thos. L. Maxwell, Judge. Action at law to recover on a fire insurance policy. Trial to a jury, and verdict and judgment for plaintiff. Defendant appeals.

<p>Appeal from Polio District Court.- — Lawrence DeGraef, Judge.</p> <p>Ti-ie opinion states the case.</p>

— W. S. Ayres, Judge. Action for damages resulting from an automobile collision. Verdict and judgment in favor of plaintiff for $5,000. Defendant appeals.

District Court. — Lawrence DeGraff, Judge. Action for damages on account of alleged deceit in the exchange of property. Motion to withdraw some of the issues from the jury was sustained. Verdict for plaintiff for $700. Plaintiff appeals.

— William Theophilus, Judge. Action on account for goods sold and delivered to the defendant as trustee. The cause was tried to the court without a jury, and judgment entered for the defendant, dismissing plaintiff’s petition. Plaintiff appeals.

— William Hutchinson, Judge. Action at law to recover damages for breach of promise of marriage. There was a trial to a jury, and a verdict and judgment for plaintiff for $15,000. Defendant appeals.

<p>TRIAL: Instructions — Non-Applicability to Evidence. Instructing on issues wholly without support in the evidence is reversible error. So held in an action on a guaranty.</p>

— R. P. Howell, Judge. Action for damages. Verdict of the jury and judgment for plaintiff. • Defendants appeal. The facts are stated in the opinion.

— R. M. Wright, Judge. This action was originally brought in partition. Thereafter, two of the parties to the suit filed an amended and substituted petition, claiming all the property involved in the original suit and all other property owned by decedent at the time of her death, alleging that they acquired such right under a contract made by their father with the decedent for. their use and benefit. The opinion states the facts.

— F. D. Letts, Judge. Action for damages. By direction of the court, the jury returned a verdict for the defendant. Plaintiff appeals. The facts are fully stated in the opinion .

<p>Appeal from Union District Court. — H. K. Evans, Judge.</p> <p>The defendant was convicted upon charge of keeping a house of ill fame, and appeals.</p>

— W. H. McHenry, Judge. Action to recover damages for personal injuries caused by reason of the alleged negligence of defendant, in running into the rear of plaintiff’s buggy with an automobile driven by defendant. The transaction occurred August 19, 1915, at about 8 P. M., at the intersection of Southeast Sixth Street with the Burlington Railroad tracks in Des Moines, Iowa.

— Ti-ios. L. Maxwell, Judge. Action at law by plaintiff, as administrator of the estate of W. W. Johnson, deceased, for damages caused by the alleged negligence of the defendant. There was a trial to a jury, and a verdict for plaintiff for $5,000; but the trial court required plaintiff to remit $2,000 or submit to a new trial. The remittitur was made, and judgment entered for $3,000. The defendant appeals.

<p>Appeal from, Monona District Oowrt. — -W. G. Sears, Judge.</p> <p>Plaintiff was granted a clivorce on the charge of cruel and inhuman treatment. Defendant appeals.</p>

<p>APPEAL AND ERROR: Reservation of Grounds — Failure to Object 1 to Instructions. Instructions must be objected to in order to secure review on appeal.</p> <p>BILLS AND NOTES: Consideration — Want of Consideration — Evi2 dence. A renewal note, even though extending the time of payment, is without consideration if the original note was without consideration. It follows that a defense that was pleadable to the original note is pleadable against the renewal.</p> <p>TRIAL: Instructions — Applicability to Evidence. Issues wholly 3 without support in the evidence must not be submitted. So held as to the issue of want of consideration and falsity of representations concerning a promissory note.</p> <p>BILLS AND NOTES: Holder in Due Course — Defective Indorsement 4 • — Effect. The plea of holdership in due course is materially discredited when allowed to rest on an indorsement which is open to the reasonable possibility of having been made without authority. So held where the original payee was a corporation, and the indorsement was in the corporation name, “per L. A. Miller,” there being no showing as to the official position, if any, occupied by “Miller,” or his authority.</p>

— O. D. Wheeler, Judge. Appeal from -a decree setting aside the findings and-order of the board of supervisors of Fremont County, establishing a drainage district.

— A. B. Thornell, Judge. Action for damages for personaj injuries. At the close of the evidence there was a directed verdict for the defendant, on the ground of failure of proof of negligence. Later, plaintiff’s motion for new trial was sustained. From such order the defendant has appealed.

— Thos. J. Guthrie, Judge. Action on a policy of live stock insurance, brought to recover for the death of 260 head of horses. The defendant filed a motion for more specific statement, calling for a detail of the circumstances of the death of each animal, including the time and place thereof. This motion was overruled, and the defendant has appealed from such ruling.

— O. D. Wheeler, Judge. The appellees, who were plaintiffs below, procured the cancellation and setting aside of a deed to certain real estate which had been executed and delivered by one Patrick Ratigan and the plaintiff and appellee, Anna Ratigan, his wife, to the father of Patrick. The appeal is from the decree thus canceling.

<p>Appeal from Wapello District Court. — Seneca Cornell, • Judge.</p> <p>The defendant appeals from a conviction of assault with intent to commit statutory rape.</p>

— J. E. Mershon, Judge. Original proceeding in this court brought to test the legality of an order by the municipal court of the city of Des Moines, refusing to the plaintiff herein a change of place of trial in g, certain action pending in such municipal court wherein Levich was plaintiff and the complainant herein was defendant.

— M. E, Hutchison, Judge. The trial court sustained an objection on part of appellee to the imposition of a collateral inheritance tax, and directed a cancellation of said tax by the.clerk of the court. Hence this appeal.

— W. H. McHenry, Judge. Suit to recover the value of services upon a quantum meruit. At the close of plaintiff’s evidence, the trial court directed a verdict for the defendant. The plaintiff appeals.

— R. P. Howell, Judge. Consolidated suits. The inquiry on appeal resolves itself into whether it was error to deny the alternative, prayer of appellants that a deed and contract to reconvey given to appellant be foreclosed as a mortgage.

<p>Appeal from Webster District Court. — H. E. Fry, Judge.</p> <p>Suit to rescind a contract resulted in the dismissal of the petition. The plaintiff appeals.</p>

— E. M. Wright, Judge. The corporate limits of the town of Slater originally included the W% SW% of Section 29, SEyj, and Ey2 SW]4 Section 30, and the north 20 acres of the NE]4 NE% Section 31, in Township 82 North, Eange 24 West of the 5th P. M., or 340 acres. In 1911, the territory was extended so as to include all of Sections 29., 30, 31 and 32, except the SW% of Section 31, which is a part of Sheldahl, or 2,400 acres.

— B. M. Wright, Judge. Action at law to recover on a quantum meruit for alleged services rendered as a cement mason and for certain other services rendered as a carpenter and for certain overtime as a farm laborer. The answer was a general denial, a plea of settlement, and a counterclaim. Verdict for plaintiff, and defendant has appealed.

— O. S. Franklin, Judge. Action for the commission alleged to have been earned in finding a purchaser for real estate resulted in a directed verdict and judgment thereon for defendant. The plaintiff appeals.

— H. E. Fry, Judge. Suit to enjoin defendant from teaching school in pursuance of a contract entered into prior to the organization of the board of directors of plaintiff district, but to be performed thereafter, resulted in a decree as prayed. -'The defendant appeals.

— W. S. Ayres, Judge. Suit in equity to foreclose a chattel mortgage. The answer admitted the execution of the mortgage and notes sued on, and averred, in substance, that they were obtained by false and fraudulent representations.

- — Charles A. Dudley, Judge. On a former trial, the present appellant recovered a judgment. This was, on appeal, reversed, on the ground that, upon the record, the plaintiff had failed to make a case by the evidence. Procedendo issued in the usual way; the plaintiff had the cause reassigned for trial.

— W. H. McHenry, Judge. This is an action at law upon an account for lumber and cement. The defense was a general denial, plea of payment, plea of novation, plea of estoppel. The case was heard in the first instance by a referee, who found for the plaintiff for the full amount of its claim. The report of the referee was approved and confirmed in the district court, and judgment entered accordingly. The defendant appeals.

.Appeal from Boone District Court. — B. M. Wright, Judge. •Proceeding to establish a boundary line between two quarter-section farms. The plaintiff claimed a line by acquiescence. By cross-bill the defendant claimed a true line, and claimed that the same had been mutually recognized as such by the respective owners of the farms. There was a decree for the defendant.

<p>CONTRACTS: Validity — Assent—Drunkenness—Effect. Drunkenness, in order to avoid a contract with reference to nonnecessaries, must he such as to render the party incapable of understanding the nature and effect of the agreement or its consequences.</p>

— Wu. Hutchinson, »Judge. Action for damages consequent upon the removal of lateral support. From judgment against her, the defendant appeals.

— Charles A. Dudley, Judge. Here there was a conviction on an indictment charging the crime of keeping a house of prostitution, and defendant appeals.

— W. H. Fahey, Judge. Suit to have restored a deposit made as an evidence of good faith in a contract to buy bonds issued by the appellee. The trial court found for the defendant. Plaintiff appeals.

— W. H. McHenry, Judge. Action at law upon a fire insurance policy for recovery of the value of a crib of pop corn destroyed by fire. The only issue, made upon the trial and presented here is the question of the the amount and value of the property so destroyed. The jury rendered special findings to the effect that the quantity was 78,400 pounds, and that the value thereof was 2% cents per pound. A judgment was entered accordingly, and the defendant appeals.

— -William Hutchinson, Judge. Action for damages consequent on the alleged alienation of the affections of plaintiff’s husband by his father resulted in a judgment against defendant for $18,000. The defendant appeals.

— N. J. Lee, Judge. This is a suit in equity, in which the plaintiffs, who were stockholders in the defendant the State Bank of Bode, complain of the dissolution of that bank, the sale of its assets, and the formation of the defendant State Savings Bank of Bode, asserting that all these things should be held fraudulent as to plaintiffs, and praying, among other things, that plaintiffs should be given such interest in the new bank as they owned in the old.

— W. D. Boies, Judge. Action to recover a balance alleged to be due plaintiff on the exchange of land. The opinion states the facts.

— A. N. Hobson, Judge. Action to recover for loss of goods shipped over defendants’ roads. The opinion states the facts. Judgment in the court below for the defendants. Plaintiff appeals.

— M. F. Edwards, Judge. Appeal from an order of the district judge, made at chambers in another county, vacating and setting aside a judgment dismissing a cause of action for want of prosecution.

— C. H. Kelley, Judge. Action to cancel an option to purchase an interest in land, executed by plaintiff James A. Ferguson to John M. Ferguson, and to cancel two mortgages executed by John M. Ferguson and wife to the defendant bank. Demurrers to the petition were sustained, and plaintiffs appeal.

— C. H. Kelley, Judge. The surviving widow of deceased filed an application in the clerk’s office praying an order authorizing herself as administratrix to distribute to herself the proceeds of certain life insurance on the life of her husband. The lower court overruled a demurrer to the resistance filed thereto by the only heir at law of deceased, and from a judgment thereon dismissing said application the widow appeals to this court.

— John T. Moffit, Judge. Suit in equity for the foreclosure of a mortgage. The defendant pleaded payment of the mortgage debt. Decree for plaintiff, and the defendants Prymek appeal.

<p>Appeal from Fayette District Court. — A. N. Hobson, Judge.</p> <p>Defendant was indicted on the charge of carrying concealed weapons, convicted, and appeals.</p>

— Oscar Hale, Judge. Action at law brought by plaintiffs, who are stock shippers, for damages for refusal of defendant company to furnish cars to ship stock from the town of Marsh, Iowa, to Chicago. Plaintiffs allege they were compelled to keep the cattle in the stockyards of defendant for some time at expense, to their damage in the sum of $200. The case was tried to the court without a jury, upon an agreed statement of facts.

— R. P. Howell, Judge. Action at law to recover damages on account of the death of plaintiff’s intestate. Verdict and judgment for plaintiff, and defendant appeals.

— F. M. Hunter, Judge. Action by «wife against husband for separate maintenance and support. Decree as prayed, and defendant appeals.

<p>Appeal from Scott ^District Court.- — F. D. Letts, Judge.</p> <p>Suit in equity to quiet title. Decree for defendant. Tlie facts are stated in the opinion. Plaintiff appeals.</p>

<p>MUNICIPAL CORPORATIONS: Officers, Employees, Etc. — Police-1 men’s Pension — Unauthorized Deprivation. A policeman once duly placed upon the pension rolls of the city may not be removed therefrom except on notice and hearing, as provided by Section 932-p, Code Supp., 1913.</p> <p>WORDS AND PHRASES: “Pension” and “Compensation” Con-2 trasted. The' term “pension,” as employed in the Policemen’s Pension Act (Section 932-j et seq., Code Supp., 1913), and the term “compensation,” as employed in the Workmen’s Compensation Act (Section 2477-m et seq., Code Supp., 1913), are not synonymous.</p> <p>STATUTES: Construction — Mandatory (?) or Directory (?). Prin3 ciple recognized that, when the provision of a statute is of the essence of the thing required to be done, it is mandatory. So recognized in a cause involving the procedure to be followed in order to deprive a policeman of the benefits of a pension fund.</p> <p>STATUTES: Validity — Public Policy. It is idle to argue to the 4 court that a constitutional statute is against public policy.</p> <p>MASTER AND SERVANT: Workmen’s Compensation Act — Award 5 — Appeal—Power of Court. It is suggested, argumentatively, that the court, on appeal from an award, may pass on the question of the servant’s legal right to the award made.</p>

— D. F. Coyle, Judge. Suit in equity by the heirs of Thomas Maher, deceased, to set aside a conveyance of 80 acres of land, and to quiet title thereto. The court dismissed plaintiffs’ petition and entered judgment against them for costs. From this judgment, plaintiffs appeal. The facts are fully stated in the opinion.

<p>Appeal from Butler District Court. — M. F. Edwards, Judge.</p> <p>Action for damages. Verdict aud judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Davis District Court. — Seneca Cornell, Judge.</p> <p>The opinion sufficiently states the case</p>

<p>LANDLORD AND TENANT: Leases — Provision for Renewal — Oc1 cupancy toy Succeeding Tenant. The removal of one tenant from rented premises, and the act of another in moving in and paying the same rent as was paid toy the former tenant, do not constitute such assumption of the former tenant’s lease as to hind the latter tenant to a provision in said former lease to the effect that remaining in possession for a stated time after the expiration of the lease shall work a year’s renewal of said lease.</p> <p>COVENANTS: Covenants Running With Land — Provision for Re-2 newal of Lease. A provision in a lease that tlie act of the lessee in remaining in possession of the leased premises for a period of three days after the expiration of the lease shall work a renewal of the lease for another year is not a covenant “running with the land.”</p> <p>LANDLORD AND TENANT: Tenancies at Will — Holding Over. A 3 holding over toy a tenant, after the expiration of a lease, for a stated time, and pending negotiations for a new lease, constitutes a tenancy at will.</p> <p>CONTRACTS: Construction — Practical Construction toy Parties — Ef4 feet. The practical construction placed upon a contract toy the parties may quite persuasively point the way to the court to reject a contrary and subsequently asserted construction. So held on an issue as to the proper construction of that part of a lease providing for renewal.</p> <p>APPEAL AND ERROR: Presumptions — Existence of Essential Fact. 5 It will be presumed, on appeal, that the trial court found the existence of a fact, when such fact is essential to sustain the judgment.</p>

— W. G. Sears, Judge. Action at law to recover damages for alleged slander. Verdict and judgment for plaintiff for $150, .and defendant appeals.

<p>Appeal from Pollc District Court. — -Lawrence De Graff, Judge.</p> <p>Action for damages. The demurrer of defendants was sustained, and the plaintiff appeals.</p>

— H. K. Evans, Judge. Action in equity to enforce specific performance of contract. Decree for plaintiff, and the defendant Plain Dealer Publishing Company appeals. The material facts are stated in the opinion.

— H. K. Evans, Judge. Action at law to recover commissious alleged to have been earned in the sale of land for the defendant. Verdict and judgment for plaintiffs, and the defendant appeals.

— Wm. Tiieophilus, Judge. Suit in equity to enjoin the collection of a special assessment levied on plaintiff’s property for the cost of paving the street upon which it abuts. There was a decree for plaintiff, and defendants appeal.

<p>Appeal from Scott District Court. — M. F. Donegan, Judge.</p> <p>The opinion states the case.</p>

<p>CEBTioKABI: Proceedings and Determination — Scope of Beview— Discharge of Policeman — Insufficiency of Evidence. On certiorari to review the action of the Civil Service Commission and other city'officers in discharging an employee, the sufficiency of the evidence on which the discharge was based will not be reviewed. The review will go no further than to determine whether the discharging hoard and officers exceeded their jurisdiction, or otherwise acted illegally.</p>

<p>DRAINS: Establishment — -Engineer’s Report — Sufficiency. Prelim-1 inary reports by the engineer, even though lacking in some information which might be of value, may be sufficient to give the establishing board jurisdiction. So bold when the report clid show (a) the boundaries of the proposed district, (b) the location, starting point, route, and terminus of each of the proposed drains, (c) the overflowed lands, and (d) elevations and depressions.</p> <p>DRAINS: Establishment — Territorial Extent — Lands Already Fully 2 Drained. Lands already completely tiled are justifiably included within a drainage district if some special benefit will result to the lands by reason of the drainage district’s furnishing a more adequate outlet for said tile.</p>

- — M. F. Edwards, Judge. Action at law to recover upon contract of employment. Verdict and judgment for plaintiff, and defendant appeals.

— J. J. Clark, Judge. Action to test the legality of the attempted consolidation of certain territory in Bremer and Fayette Counties into a consolidated school district. There was a trial to the court upon an agreed statement of facts. Plaintiff’s petition was' dismissed, and it appeals.

<p>Appeal from Des Moines Municipal Gourt. — Jos. E. Meyer, Judge.</p> <p>The opinion states the case.</p>

— C. H. Kelley, Judge. Appeal from an order in probate cancelling and setting aside allowance made to the widow for her support.

<p>Appeal from Johnson District Court. — R. P. Howell, Judge.</p> <p>Action for specific performance. There was a decree for plaintiff, and defendants appedl.'</p>

— Charles A. Dudley, Judge. Original writ of certiorari sued out of this court to the district court of Polk County, whereby the legality of its action is challenged.

— W. H. Fahey, Judge. Suit by a subcontractor to foreclose a mechanics’ lien. The original defendants in the case were the property owner and the principal contractor. There was a decree for plaintiff, and the defendant owner has appealed.

Polh District Court. — Lawrence DeGraff, Judge. Action to recover rental fees for the space occupied by defendant with its poles and wires in the streets of the city of Des Moines under an ordinance passed by the city on December 30, 1912. The petition is in five counts, and seeks, to recover the sum of $1 for each pole and $1 for each mile of wire in the streets for the years 1910, 1911, 1912, 1913, and for part of the year 1914.

— D. F. Coyle, Judge. Action to recover an alleged overpayment on a contract for the excavation of a drainage ditch. Verdict for the plaintiff by direction of the court, for the full amount claimed. Defendant appeals.

— Hugh Brennan, Judge. Landlord's attachment. Parties intervened, claiming their mortgages were superior to the lien for rent. Interveners defeated in justice court. A reversal by the district court on writ of error is appealed from.

— C. A. Dudley, Judge. This is an action in equity, to restrain defendant from carrying on unfair trade and from continuing unfair competition, as plaintiff alleges. In the action, an application for a temporary writ of injunction was made, and a hearing had thereon. This appeal is from an order of the district court granting a temporary restraining order. The defendant appeals.

— O. E. Albrooic, Judge. This is an action at law to recover damages from the defendant for its alleged negligence in striking and injuring plaintiff’s automobile. There was a trial to a jury, and a verdict and judgment in favor of plaintiff in the sum of $800. The defendant appeals.

— E. B. Woodruff, Judge. Action by way of garnishment. Burke, garnishee, appeals from a judgment rendered against him in favor of the plaintiff. No notice of appeal was served on the judgment defendant.

— J. B. Rockafellow, Judge. The action is one by plaintiff against defendant to have certain alleged taxes declared null and void, and to have a tax certificate of purchase, a tax sale, and the sale of lands based upon said taxes, canceled, on the ground that there was no valid listing, assessment or levy of said taxes, because the assessor who attempted to list the property liable for taxes failed to attach his oath to the assessment rolls, as required by Code Section 1365.