Volume 182 — Iowa Reports

<p>1 INDICTMENT AND INFORMATION: Amendment — Matters of Form — Erroneous Designation of Judicial District. An indictment may be so amended by the county attorney as to correct an error in a mere matter of form. So held as to an indictment actually returned by the grand jury of the Avoca, Pottawattamie County, 'district, for an offense committed within that district, amended by striking from the caption the words “Council Bluffs” and inserting the word “Avoca.” (Sec. 5289, Code Supp., 1913.)</p> <p>2 INDICTMENT AND INFORMATION: Requisites and Sufficiency- — ■ Caption. Principle recognized that the caption to an indictment is not a material part thereof.</p> <p>3, INCEST: Evidence 13 '— Prior Incestuous Acts — Miscarriage. Evidence as to incestuous acts between prosecutrix and the defendant, prior to the act on which conviction is sought, and evidence as to a miscarriage following one such act, is admissible, the former tending to show the sexual relation existing between the parties, the latter as tending to corroborate the prosecutrix as to the occurrence of such prior acts.</p> <p>4 CRIMINAL LAW: Trial — Reception of Evidence — Timely Motion To Strike — Incest. Whether testimony which is properly in the record during one stage of the proceeding is erroneously retained in the record after the happening of proceedings which, it is claimed, render its further retention improper; is properly raised, at the time the latter proceedings are had, by a motion to strike. So held in an incest case where, after election by the State, it was sought to exclude from the record evidence of prior incestuous acts.</p> <p>5 INCEST: Corroboration of Prosecutrix — Condition of Sexual Organs. Testimony as to the physical condition of the private parts of the prosecuting witness in an incest case subsequent to the happening of the specific act upon which conviction is sought, and in the absence of any other showing of cause for such condition, may be corroborative of a recital' by prosecutrix of numerous prior incestuous acts occurring between her and defendant.</p> <p>6 INCEST: Accomplice — Corroboration—Age of Consent. A prosecutrix under the age of consent may not be an accomplice in the crime of incest. It follows that no corroboration is absolutely required. (See Sec. 5489, Code, 1897.)</p> <p>7 WITNESSES: Impeachment, Etc. — Hypothetical Basis Without Foundation in Record — Incest. Witnesses may not be impeached upon a hypothetical basis which has no foundation in the record. So held where defendant in a prosecution for incest sought to show by expert testimony that premature sexual development is likely to detrimentally affect the mental processes of a female, there being no .attempt whatever to show that the prosecutrix in question was mentally deficient.</p> <p>8 APPEAL AND ERROR: Review — Presumptions—Exclusion of Question — Necessity to Show Prejudice. Error may not be predicated on the exclusion of questions which in no manner suggest the answer expected. So held as to certain excluded questions put to a medical expert.</p> <p>9 TRIAL: Misconduct of Court — Prompt Withdrawal. Withdrawal of possibly prejudicial remarks by the court cures the error-, if any, in making them.</p> <p>10 CRIMINAL LAW: Instructions — Forrh, Requisites and Sufficiency— Assumption of Fact — Incest. Instructions reviewed, and held non-assumptivé of the fact of prior incestuous relations of the parties.</p> <p>11 CRIMINAL LAW: Instructions — Withdrawal Favorable to Defendant. An accused may not complain of instructions which-wholly withdraw from consideration all evidence by the State of incestuous relations between prosecutrix and defendant subsequent to the transaction on which the State elects to rely.</p> <p>12 CRIMINAL LAW: Instructions — Form, Requisites and Sufficiency— Good Character. Instructions relative to the effect of good character in a criminal prosecution reviewed, and held correct.</p> <p>3, 13 INCEST: Evidence-Prior Incestuous Acts — Miscarriage.</p> <p>14 TRIAL: Instructions — Form, Requisites and Sufficiency — Correct But Not Explicit — Criminal Law. Instructions which are correct, though not as explicit as desired, are sufficient, in the absence of a request for the more explicit one. So held as to an instruction relating to prior incestuous acts.</p> <p>15 TRIAL: Misconduct of Counsel — Withdrawal—Effect. Promptly sustaining objections to improper argument, followed by equally prompt withdrawal of the remarks by counsel and further direction by the court to the jury to wholly disregard the same, has large curative qualities on the error.</p>

— J. H. Applegate, Judge. Proceeding in probate at law for the allowance of a claim filed by plaintiff, Brown, against tbe estate of Nancy B. McIntosh. An alloAvance Avas granted, and the interveners appeal. —

— K. E. Willcockson, Judge. Action in equity to quiet title. By his answer, the defendant, C. B. Patterson, sets up a claim of title to an undivided part of the property. A demurrer to his answer was sustained, and decree rendered as asked by the plaintiff. Defendant Patterson appeals.

— James W. Willett, Judge. Suit in partition of lands. A decree confirming shares was entered April 4, 1913. Pursuant thereto, a partition in kind Avas had as to a large part of the property. Other property was ordered sold. On December 9, 1914, two of the defendants seiwed notice upon their codefendants of the filing of a cross petition, asking that the decree confirming shares be vacated and set aside. This cross petition had .been filed on June 14th.

— C. E, Albrook, Judge. The right of way and other lands owned by plaintiff within the above-named district were assessed with a part of the cost of constructing the drainage system, and it appealed to the district court from the assessment so made. On a hearing of the evidence, the court confirmed assessment as levied by the board of supervisors, and plaintiff again appeals.—

— J. H. Applegate, Judge. Suit in equity to establish a vendor’s lien upon certain real estate for the amount of certain notes given for the purchase money, and to recover judgment on such notes as are due, the notes, however, not being in the possession of the executor. The answer was, in effect, a general denial.

— J. B. Rockaeellow, Judge. ‘ Action to recover tlie past due installments of the purchase price of land under a contract of sale. The answer admitted the contract, and pleaded a tender with costs. With his answer, the defendant filed a motion praying for judgment upon the pleadings. This motion was sustained, and the petition was by the court dismissed. The plaintiff has appealed.

— J. B. Rockaeellow, Judge. Action for balance alleged to be owing on a promissory note. Pleas of payment and estoppel were interposed, and (he cause transferred to the equity side of the calendar. On hearing, the petition was dismissed. The plaintiff appeals. —

■Appeal from Blaelc Hauole District Court. — George W. Dun-ham, Judge. Suit upon a certificate of insurance. Defense that decedent engaged in a prohibited occupation, and that, though this did not cancel the certificate, it relieved defendant from liability for injuries directly traceable to being engaged in the prohibited occupation. Reply that defendant has waived and is estopped to urge said defense, and that the injury was not directly traceable to said occupation.

— Thomas Arthur, Judge. Appeal from the action of the city council of the city of Council Bluffs, Iowa, sitting as a hoard of review for the equalization of the assessment of property within the city limits. Decree in the district court dismissing plaintiffs’ petition. . Plaintiffs appeal. —

— M. E. Hutchison, Judge. The board of supervisors established ,a drainage district and included certain lands of appellant therein. There was an appeal to the district court. The cause was tried and, at the close of the plaintiff’s testimony, the court sustained a motion approving and confirming the action of the board of supervisors in the establishment of the district. The decree so provided. Appellant has appealed.

— Thomas Arthur, Judge. Suit in equity to reform a contract for the sale of real estate on the ground of mutual mistake as to the acreage in the tract sold. The defendant denies that there was any mistake, and especially denies that there was any mistake on his part. There was a decree for the plaintiff, and the defendant appeals . —

— Charles A. Dudley, Judge. Action to recover damages for the death of plaintiff’s intestate, caused by a fall of slate in defendant’s mine. Trial to a jury, and at the-close of plaintiff’s testimony, there was a directed verdict for ’the defendant. Plaintiff appeals. —

— E. M. Wright, Judge, Action to recover the price paid for a stallion on the ground of rescission of the contract for Jpgal cause. The answer was a general denial. There was a verdict for the plaintiffs. The defendant appeals. —

Appeal, from Lirm District Oourt. — F. O. Ellison, Judge. Action in equity by John Palumbo to set aside a decree of foreclosure of a mechanics’ lien. Decree as prayed. This controversy, by stipulation,' reaches this court under the title which was carried in the foreclosure suit, in which Palumbo was a defendant. The opinion states the facts.—

Appeal /rom Black Sa/wk District Court. — H. B. Boies, Judge. Action, to recover the amount due on a shipment of oil. Defense, plea of payment. Opinion states the facts. Judgment for defendant in the court below. Plaintiff appeals.

— Thomas Arthur, Judge. Action at law for damages for breach of contract in the sale of real estate. There was a cross bill asking reformation of the contract. Upon motion of the defendant, the trial of the issues- set up in the cross bill was transferred to the equity side, and trial thereon was had, resulting in a dismissal of the cross bill. The defendant has appealed.—

<p>1 EVIDENCE: Relevancy, Materiality, and. Competency — State of Mind — Inducing Cause. It is competent for one, when such is the issue, to state the inducing cause of his action. So held as to what induced a settlement.</p> <p>2,9 PAYMENT: Recovery of Payments — Fraud as Inducing Cause— Reliance. One seeking to recover payments because of fraudulent representations need not show that such fraud was the only thing that influenced him in making the payment. It is sufficient if such fraud was the controlling factor.</p> <p>3. FRAUD: Nature of Fraud — Fraudulent Settlement of Disputed Claim Fraud will vitiate a settlement, even though the settle ment is on a disputed claim.</p> <p>4 TRIAL: Instructions — Form, Requisites, and Sufficiency — Presumption Attending Settlement. The legal presumption attending the settlement of a disputed claim is sufficiently presented to the jury by an instruction placing the burden on the one attacking the settlement to show that it was procured by fraud.</p> <p>5 APPEAL AND ERROR: Assignment of Error — Failure to Submit Brief Points. Assignment oí errors without brief points will he disregarded.</p> <p>6 EVIDENCE: Opinion Evidence — Appearance of Sickness in Animals. A farmer without knowledge of veterinary science is competent to state th^t farm animals did not, at a named time, appear to 'bo side.</p> <p>7 EVIDENCE: Admissions — Non-Material. Admissions. Non-material admissions of a party are properly excluded.</p> <p>8 EVIDENCE: Relevancy, Materiality, and Competency — Remote and Speculative Matters. On the issue whether domestic animals were diseased, evidence that the owner was using them for food is too remote for admissibility.</p> <p>2, 9 PAYMENT: Recovery of Payments — Fraud as Inducing Cause— Reliance.</p> <p>10 DAMAGES: Measure of Damages — Recovery of Payments — Fraud. In an action to recover payments on the sole issue of fraud, the measure of recovery is the total amount paid.</p>

<p>1 DEEDS: Rescission — Fraud—Failure to Return Consideration — Effeet. A deed obtained by fraud may not be rescinded and an accounting had of the rents and profits unless the consideration paid be returned or legally tendered by the one defrauded, or by the one occupying his shoes, and financial distress is no excuse for a non-return or tender. In other words, such return or tender is an essential and unavoidable element of a legal rescission.</p> <p>2 DEEDS: Validity' — Fraud and Undue Influence. Principle recognized that a deed obtained by fraud is not void, but voidable. .</p> <p>3 ELECTION OF REMEDIES: Fraud — Confirmation or Repudiation of Deed. Principle recognized that one defrauded into the execution of a deed may elect:</p> <p>1. To confirm the deed and recover his damages; or</p> <p>2. To rescind tlie deed and recover the land with the rents and profits.</p> <p>4 DEEDS: Rescission — Fraud—Return of Consideration — Action hy Heir of Grantee. The consideration paid by one who fraudulently obtains a deed must be returned or tendered to him, in order to work a rescission, even though the action is by one who has succeeded to the rights of the defrauded grantee, and even though the one so succeeding never received any of the consideration.</p>

<p>Appeal from Lyon District Court. — William Hutchinson, Judge.</p> <p>Action in equity to establish plaintiff’s title to 134 acres of land in Lyon County, and to redeem the same from the lien and claim of the defendants, who are alleged to be holding the legal title in trust as security for the payment of a debt. The trial court dismissed the petition, and plaintiff appeals. —</p>

<p>Appeal from Harrison District Court. — E. B. Woodruff, Judge.</p> <p>Suit to quiet title. The defendant Joicy Browning set up a claim of title to an undivided one-half interest in the tract in controversy. By cross-petition, she asks to quiet her title. There was a decree for plaintiffs as prayed, and the defendants have appealed. —</p>

<p>1 MASTER AND SERVANT: Master’s Liability — Extent in General —Dual Injury — Evidence. Evidence is admissible to show that a servant’s injury resulted from one of two injuries or from a combination of two injuries.</p> <p>2 MASTER AND SERVANT: Tools, Etc. — -Unnecessary and Voluntary Use of Tools. A servant may not recover for an injury caused by the voluntary use of a tool by the servant without the express or implied direction of the master.</p> <p>3 MASTER AND SERVANT: Tools, Etc. — Simplicity of Task — Non-Necessity to Furnish Tools. A task may be so simple in its execution as to exclude any duty on the part of the master to furnish any tool. So held as to the task of unloading ties.</p> <p>4, 6 MASTER AND SERVANT: Warning and Instructing Servant— Simplicity of Task. A task may necessarily be so simple as to absolve the master-from all duty to warn and instruct the servant. So held as to the task of piling railway ties, weighing 140 pounds, upon a pile 2% feet high.</p> <p>5 NEG-LIGENCE: Acts Constituting Negligence — Lifting Car From Railway Track. It is not negligence for a master to require seven able-bodied men to lift a-section men's car from the track at a point where the track is .on practically level ground, when, as a matter of practice, four men were commonly and without difficulty performing the same task.</p> <p>4, 6 MASTER AND SERVANT: Warning and Instructing Servant— Simplicity of Task.</p> <p>7 MASTER AND SERVANT: Assumption of Risk — Servant Qvertaxing Himself. A servant assumes the risk of overtaxing his physical powers. So held where one strained himself in lifting.</p>

<p>Appeal from Wright District Court. — Wm. Theophiltjs, Judge.</p> <p>Action to recover the purchase price of a certain heating plant and to foreclose a mechanics’ lien thereon. Judgment and decree for the defendant in the court below, dismissing plaintiff’s petition. —</p>

<p>1, 4 PLEADING: Admissions — Admission of Legal Conclusion — Effect. A pleader may contradict his own admission of the correctness of a legal conclusion.</p> <p>PRINCIPLE APPLIED: See No. 2.</p> <p>2 WILLS: Vested or Contingent Estates — Postponing Division — Effect. A devise to one for life, with remainder over equally to Ms children, vests the children, as remaindermen, with a fee simple title instantly upon the death of the testator. Postponing division in order to lei in a life estate does not prevent the vesting of title, unless the devise clearly so provides.</p> <p>PRINCIPLE APPLIED: A will devised to a son a life estate in mortgage-encumbered lands. The will provided for equal division of the property among the son’s children after his death. It provided also that, if the son predeceased the testator, the property was to pass to said children upon the death of testator. The son and one child survived testator. Later, two other children were born to the son. Thereafter one child died. Still later, the mortgage was foreclosed, without any service on said two living children, sale was had, deed was issued, and one Killion acquired the title so conveyed. After foreclosure, another child died. The son and his wife were the sole heirs of said two deceased children. After the death of the two children, the son and his wife conveyed the land, and Killion acquired the title so conveyed. The son died, survived by the one remaining child. Action was brought to quiet title in said surviv-' ing child to the entire land. The guardian alleged: (a) The probate of said will; and (b) that no remainder vested until the death of the son, and that, therefore, said remainder vested solely in said surviving child. The defendant Killion admitted said allegations, but pleaded the said foreclosure in bar, and the trial court sustained the plea. On appeal, the opinion was confined solely to the holding that the foreclosure was void, as to said surviving child, because of lack of notice. Perfunctory attention was given, on appeal, to the question whether the surviving child took, under the will, all or a part only of the land. A general order of reversal was entered.</p> <p>After remand, defendant Killidn, by amendment, offered to plead, in effect: (1) That, upon the death of the testator, the entire remainder vested instantly in the one child then living; (2)that twice thereafter, on the birth of the two other children, the remainder opened in order to let in said after-born children; (3) that, as a consequence, each of the three children became fully vested during their lifetime, and as remainder-men, with a fee to one third of the land; (4) that the son and wife inherited the two thirds left by the two deceased children; and (5) that the final surviving child oioned only a one-third interest in the land. This amendment was rejected. On motion, decree was entered in favor of said final surviving child for the entire land. On appeal, held:</p> <p>(1) That said rejected amendment correctly construed the will. '</p> <p>(2) That defendant, after remand on the first appeal, might, without any pleading, ignore his said admission that the final surviving child became vested with the title to all the property, because such admission was an admission of the correctness of the plaintiff’s legal conclusion as to the proper construction of the will.</p> <p>(3) That, if said admission be treated as one of fact, it was neutralized by the qualifying clauses of the pleadings, and by the practical construction and treatment accorded it by the parties and by the courts.</p> <p>(4) That, under the general order of remand, the trial court should have proceeded just as though it had held, on the first hearing, that the foreclosure was void as to said child, and should then have proceeded to construe the will and determine the relief to which the plaintiff child was entitled.</p> <p>3 REMAINDERS: Vested Remainders — Descent. Remaindermen, with vested title subject to a life estate, hold the property, not as joint tenants, but as tenants in common; and upon the death of one tenant in common, his vested estate passes, in the absence of a will, to his heirs.</p> <p>PRINCIPLE APPLIED: See No. 2.’</p> <p>1,4 PLEADING: Admissions — Admission of Legal Conclusion — Effect.</p> <p>5 PLEADING: Admissions — Admissions of Fact — Construction. An admission of a fact may he wholly nullified hy qualifying clauses and limitations, and hy the practical construction and treatment accorded it hy the parties and hy the courts.</p> <p>PRINCIPLE APPLIED: See No. 2.</p> <p>6 APPEAL AND ERROR: Reversal — General Order of Remand — Effeet. A general and unqualified reversal of a judgment or decree, without other order or direction, works a complete nullification of said judgment or decree, and leaves the case as though said judgment or decree had never been entered.</p> <p>PRINCIPLE APPLIED: See No. 2.</p> <p>7 PLEADING: Amendments — Equity Causes — Amendments After Reversal. Principle recognized that amendment to pleadings in an equity cause may be permissible even after reversal on appeal.</p> <p>PRINCIPLE A'PPLIED: See No. 2.</p>

— E. G. Alberts, Judge. Action for damages consequent on collision with telephone wire Avas tried, submitted to a jury, and a verdict returned for defendant, and judgment was entered thereon. The plaintiff appeals. —

<p>Appeal from Black Hawk District Court. — George W. Dun-ham, Judge.</p> <p>Suit to recover a commission for the sale of real estate. There was a verdict for the plaintiff, and the defendant appeals. —</p>

— O. W. Mullan, Judge. Action to enforce an agreement, whereby it is claimed that defendant received a sum of money originally deposited with the Delaware County State Bank, and afterwards taken over by defendant upon an agreement to return the same to plaintiff on demand, if plaintiff did not receive title to certain land in the state of Texas, which plaintiff had purchased from the American & Canadian Land Company.

<p>Appeal from Polk District Court. — Hugh Brennan, Judge.</p> <p>Tbe plaintiff complains that he suffered loss because of various representations which induced him to buy an electric bus of the defendant. Plaintiff had verdict, and defendant appeals. —</p>

<p>1 PLEADING: Amendments — Division Into Counts. Pending motion for directed verdicts, amendments are proper which do no more than to divide the petition into counts.</p> <p>2 LIMITATION OP ACTIONS: Computation of Period — Amendments Pleading New Cause of Action, Etc. No new cause of action is pleaded 'by an amendment which simply divides a petition into counts, and amplifies the former statements thereof.</p> <p>3 EVIDENCE: Relevancy, Competency, and Materiality — History of Transaction. The natural incidents of a case, — those things which, within proper limits, constitute the history of preliminary transactions leading up to and explaining the one on which the action is based, — are always admissible.</p> <p>4 APPEAL AND ERROR: Right of Review — Overruled Motion for Directed Verdict — Waiver. Motion for directed verdict at close of plaintiff’s testimony must, if overruled, be renewed at close of defendant’s testimony, or waiver results.</p> <p>5 PRINCIPAL AND AGENT: Power of Agent — Authority to Arrest Embraces Authority to File Information. Authority of a railroad detective to make arrests’ for criminal disturbances on the grounds of the company, necessarily embraces the further power to do' that which will make the arrest latoful: to wit, file information for the prosecution of the offender.</p> <p>Salingek, X, dissents.</p> <p>6 PRINCIPAL AND AGENT: The Relation — Policemen Acting for Railroad Company — Jury Question. No conclusive presumption necessarily arises that policemen, duly appointed by the public authorities of a city, act, in the performance of their duties. †or and on behalf of the city.</p> <p>PRINCIPLE APPLIED: Two men were employed and paid by a railway company as special watchmen. They were duly appointed and sworn in by the proper city authorities, and were detailed to act as special officers for the company; but just who detailed them does not conclusively appear. They did not report to the city, nor to the city chief of police. The city did not fix their .hours of work. The two men were under the supervision and control of a special agent of the company, who, in turn, received his orders from other superior officers of the company. These two policemen made an arrest, but whether for violation of city ordinance or state law does not appear. In an action for false arrest, the court allowed the jury to say whether, in making the arrest, the policemen were acting for the city or for the railroad company.</p> <p>Held, proper.</p> <p>7 PRINCIPAL AND AGENT: Powers of Agent — Acts Within Scope of Employment But in Disregard of Orders. So long as an agent acts within the scope of his employment, it is immaterial that he acts willfully and in disregard of orders.</p> <p>8 MALICIOUS PROSECUTION: Termination of Prosecution — Dismissal by County Attorney. Voluntary dismissal of a criminal action by the county attorney is a termination of the cause for the purpose of an action of malicious prosecution.</p> <p>9 ARREST: Mode of Making — Non-Necessity for Force or Physical Restraint. Actual force or visible physical restraint is not necessary in order to make a valid arrest.</p> <p>10 APPEAL AND ERROR: Assignment of Error — Errors En Masse. An assignment to the effect that the court erred in refusing to give each and every one of 24 different requested instructions will he wholly disregarded.</p> <p>11 EVIDENCE: Relevancy, Competency, and Materiality — Non-Issuable Matters. Whether plaintiff, in an action for malicious prosecution, was, at a time prior to the arrest in question, a passenger or a trespasser on defendant's train, is wholly immaterial when such prior time was not issuably connected with said arrest.</p> <p>12 APPEAL AND ERROR: Parties Entitled to Allege Error — Invited Error. Inviting error precludes subsequent complaint.</p> <p>13 MALICIOUS PROSECUTION: Actions — Arrest Without Warrant— Justification — Burden of Proof. One who arrests without a warrant must justify the arrest.</p>

— Milo P. Smith, Judge. This is a controversy over the title and right of custody of certain personal property owned in her lifetime by Efíie M. Fenton, deceased. The plaintiff is the duly appointed administrator of her estate. The defendants are alleged donees of the property. The property consisted, in the main, of Loan Association certificates, and bank deposits evidenced by pass books.

— B. F. Cummings, Judge. Action to recover compensation for services rendered and meals furnished. The defendant put in issue some of the allegations of the petition by denial or avoidance, and interposed a counterclaim in nine divisions. On trial, there was a verdict for plaintiff, and judgment entered thereon. The defendant appeals.

— E. P. Howell, Judge. We are asked to review an order of the district court in approving certain reports in probate, and one striking out an amendment to objections filed subsequent to the making of said approval.. The appeal impleads a guardian and an executor, and is being prosecuted by a minor devisee.—

Certiorari from Polic District Court. — Chas. A. Dudley, Judge. This is an original proceeding complaining that the defendants acted illegally and beyond jurisdiction in not cancelling an original decree of disbarment, and in refusing to further modify said original decree, and in other respects.

<p>Appeal from Sioux District Court. — William Hutchinson, Judge.</p> <p>Plaintiff was denied a decree of divorce from defendant, and appeals. —</p>

— M. E. Hutchison, Judge. The plaintiff, a corporation, is an execution creditor of Cooper & Collins, a partnership. It levied an execution by garnishment of the First National Bank of Woodbine, as garnishee and as alleged debtor of Cooper & Collins. The issue is between the plaintiff and the garnishee.

— E. M. Wrigi-it, Judge. Action to recover fqr personal injuries. The opinion shows the facts. Verdict and judgment for the plaintiff. Defendant appeals. —

— E. M. McCall, Judge. Action to recover the purchase price of certain laud sold by the defendants to the plaintiff, on the ground that the purchase was induced- by fraud. Verdict and judgment for the plaintiff. Defendants appeal. —

<p>HUSBAND AND WIFE: Separate Maintenance — Grounds—Sufficiency. Separate maintenance decree may not be entered on the ground of cruel and inhuman treatment unless the evidence would justify a decree of divorce if one were asked. Evidence reviewed, and held insufficient.</p>

— William Hutchinson, Judge. Plaintiff seeks to recover damages for breach of contract. Verdict ivas directed against him, and he appeals.—

— -Thomas Arthur, Judge. Suit to recover damages, on the ground that defendants sent an obligation of the plaintiff to it out of the state of Iowa, with intent to deprive the plaintiff of the benefit of the Iowa exemption laws, and that such wrongful intent was accomplished by depriving the plaintiff of wages which could not have been reached had suit been brought in Iowa. Plaintiff had a verdict for both actual and exemplary damages, and defendants appeal. —

— George W. Dun-ham, Judge. Appellee had a verdict for services rendered appellant’s decedent. The sole question presented by the appeal is whether testimony for plaintiff was received in violation oí Section 4604 of the Code.

— F. O. Ellison, Judge. Suit to foreclose a mortgage. ■ The answer put in issue its alleged maturity, and, by way of counterclaim, prayed judgment for $4,698.77 in damages consequent on plaintiff’s failure to satisfy two mortgages on which there remained owing such sum, and for $18,000 alleged to have been obtained by deceit in misrepresenting the value of certain lands in New Mexico.

- — Hubert Utterback, Judge. Action by a trustee iu bankruptcy to recover from the transferee of property the amount thereof, on the theory that it was made at a time when the transferor was insolvent, and in fraud of the rights of creditors. Judgment dismissing plaintiffs petition. Plaintiff appeals.

— M. E. Hutchison, Judge. Action of replevin for the possession of a note executed by the plaintiff, as maker, to' the defendant Paxton-Eckman Chemical Company, as payee. The ultimate question in controversy is whether the note was obtained from the plaintiff by fraud, and, therefore, whether he is entitled to the possession of the same as having rescinded the fraudulent transaction. There was a verdict for the plaintiff, and the defendant appeals.

- — Hugh Brennan and W. H. McHenry, Judges. We pretermit the usual preliminary statement, because, as will presently appear, we should be enabled to make it only by an examination of the entire record.

— William D. Boies, Judge. Defendant McPherson contracted with Sioux County to do certain bridge work. The appellant is a subcontract- or, who furnished materials that wefit into said construe-, tion. The defendants other than McPherson became sureties on a bond running to the county. The appellant brought suit on the bond, and, because a demurrer to its petition was sustained, it appeals.

<p>1 CONTRACTS: Construction — Reasonablenessi—Antenuptial Agreements. A construction which will work unfair or unreasonable results will not be placed upon a contract unless the terms thereof force the court so to do. So held as to an antenuptial contract.</p> <p>2 CONTRACTS: Conditions Subsequent — Antenuptial Contracts — Improvements. An antenuptial contract, under which one party waived all dower interest in tbe farm of the other, but was to have a share of the increased value thereof and improvements placed thereon, reviewed; and held that the non-making of improvements was, in effect, the breach of a condition subsequent, and did not cancel the contract.</p> <p>3 HUSBAND AND WIFE: Marriage Settlements — Subsequent Misconduct of Party — Effect. The subsequent misconduct of a party to an antenuptial contract, of such grave nature as to result in a divorce to the other party, does not cancel such contract as to provisions which, in their very nature, are already executed.</p>

— Henry Silwold, Judge. Plaintiff brought suit on notes executed by the defendant. An equitable counterclaim being interposed, the cause was transferred to equity, and sent to a referee. He found for the plaintiff.

— M. F. Edwards, Judge. Suit in equity in behalf of the state of Iowa against the defendant to recover $100 per year for the years 1910, 1911, 1912, 1913, and 1914, as alleged license or inspection fees due from the defendant to the state of Iowa, under the provisions of Section 5077-al0, Code Supplement, 1907. There was a demurrer to the petition, which was overruled. The defendant electing to stand upon his demurrer, judgment was entered accordingly.

A2>peal from Carroll District Court. — E. G. Albert, Judge. Action for damages resulting from a collision at a private crossing over defendant’s road. Judgment for plaintiff, from which defendant appeals.

Appeal jrom Allamakee District Court. — -W. J. Springer, Judge. Action on a certificate issued by the defendant, The Modern Woodmen of America, to plaintiff. Intervention by nephews of deceased, on the ground that plaintiff was ineligible as dependent.

— Franklin C. Platt, Judge. Action at law to recover bait the costs of maintaining a flagman at the crossing of the appellant road by that of appellee. The.demand is based upon a contract entered into between the two companies. The appellee defended that it was a condition precedent in the contract that the contribution should be made only if and after the city of Waterloo 'by ordinance required a flagman at that crossing, and that the 'condition precedent has not occurred.

— Robert T. Bonson, Judge. Appeal by. plaintiff from an order overruling her motion to set aside a decree rendered in her favor.

— C. B'. Robbins, Judge. Action brought in equity for an accounting, and for damages against defendant -as the alleged agent of plaintiff. Plaintiff corporation is the assignee of William King, W. E. Yessler, and W. A. Hubbard; the last named parties are the persons who, it is claimed, made the contract with defendant. Hereafter, for convenience, we shall refer to the said three parties as plaintiff, instead of saying each time, plaintiff’s assignors.

— M. F. Edwards, Judge. Action in equity by plaintiffs to quiet title. The action involves the construction of a will. The plaintiffs appeal from so much of the ruling of the trial court as sustained the first and third grounds of defendants’ demurrer to the petition, and defendants appeal from so much of the ruling of the district court as overruled the second ground of the demurrer. Plaintiffs first perfected their appeal, and are the appellants.

— Hubert Utterback, Judge. Defendant was indicted on the charge of incest, tried to 'a jury, and convicted. From the judgment of conviction, he appeals. —

— Henry Silwold, Judge. This action involves the right to maintain a dividing line between tracts of land owned by the parties, respectively, bas'ed' bn the theory of acquiescence. The opinion states the facts. Decree in the district court dismissing plaintiff’s petition. —

— N. J. Lee, Judge. Petition in equity for an accounting. The opinion states the facts. Decree for the plaintiff in the district court. Defendant appeals.

— D. F. Coyle, Judge. Action iu equity to establish and confirm plaintiff’s title to certain land, and for other relief. Decree as prayed, and defendants appeal.

— R. P. Howell, Judge. Action in mandamus to require defendant to pay plaintiff certain taxes. A demurrer to plaintiff's petition was sustained, and judgment rendered against plaintiff for costs. Plaintiff appeals.

— Oscar Hale, Judge. Action in equity to quiet title. ' Plaintiffs are the widow and son of Ben Pranger, deceased, who was the son of defendant. They allege that defendant made a gift to said deceased son, in parol, in 1904; that deceased took possession thereunder, farmed the land, claiming it as his own, until his death in 1915, for more than ten years, claiming to own the same; and that he made improvements.

— W. J. Springer, Judge. Action on a note. Defendant filed a counterclaim The trial court directed a verdict against plaintiff on its alleged cause of action, and the jury returned a verdict for the defendant on the counterclaim. Judgment was entered thereon, and plaintiff appeals.

— Henry Bank, Judge. The plaintiff, a prisoner in the state penitentiary at Fort Madison, Iowa, petitioned for a writ of habeas corpus, directed to the warden of that institution, to test the legality of the restraint exercised over him. The substance of the complaint will be set out more fully in the opinion. The district court denied the relief asked, an'd the petitioner appeals.

— Thomas Arthur, Judge. On September 2, 1914, the Greigs and Intervener Maynes entered into written contract, by which the first sold and agreed to sell to the last certain described'lands, “and appurtenances thereto belonging.” This contract was not recorded.

— A. N. Hobson, Judge. Ti-ie defendants Rudolph and Alwine Ott are husband and wife, and Albert Ott is their son. Plaintiff, sometime prior to the commencement of this suit, obtained judgment in the district court of Fayette County against Rudolph and Alwine Ott for $7,968.74. This judgment is based upon a $4,400 note executed by Rudolph Ott, May 9, 1907, to Adam Kiefer.

— E. B. Woodruff, Judge. Action for damages consequent on alleged misrepresentation of land resulted in judgment against defendant, from which he appeals. —

— F. M. Powers, Judge. Suit in equity to enjoin the defendants, directors and officers of a school corporation, from appropriating, contributing, or paying out public school funds for the support, or in aid of the maintenance or support, of a parochial school, and for other equitable relief. The defendants denied the allegations of the petition; and, on trial to the court, a decree was entered substantially as prayed, and defendants appeal.

— H. K. Evans, Judge. The plaintiff appeals from the order and judgment of the trial court establishing and confirming the assessment of an inheritance tax. The material facts are stated in the opinion.

— N. J. Lee, Judge. Action in replevin for the possession of certain described steers and heifers, alleged to be wrongfully detained by the defendant. There was a judgment for plaintiff, and defendant appeals.

'Appeal from Des Moines Municipal Court. — Eskil G. Carlson, Judge. Action at law to recover for services rendered in defendant’s behalf. There was a trial to the court, and judgment for defendant. Plaintiffs appeal.

— Seneca Cornell, Judge. Action upon promissory notes. Trial to a jury. At the close of the testimony, the court directed a verdict for the plaintiff, and judgment was entered upon the verdict. The defendant appeals.

— R. P. Howell, Judge. Action to quiet title. Opinion states the facts. Decree in the court below dismissing plaintiffs’ petition. Plaintiffs appeal.

— J. W. Anderson, Judge. This is an action at Jaw, brought by the plaintiff in his own behalf and in behalf of twenty-three other persons who have assigned to him their claims, to recover from the city of Sioux City the amount of. certain license fees paid by the plaintiff and his assignors, as plumbers, in the years 1911, 1912, 1913, and 1914. The petition is in sixty-nine counts, upon all of which the plaintiff recovered the sum total of $4,234. The defendant appeals.

— Seneca Cornell, Judge. Action for damages on an injunction bond. There was a verdict for plaintiff. From the judgment entered thereon, the defendant has appealed.

<p>1 INSURANCE: Avoidance of Policy — Untrue Statements Which Inhere in Company’s Certificate of Health. Untrue, but non-fraudulent, statements by a proposed insured, bearing solely on his present condition of health, inhere in a “certificate of health or insurable fitness” subsequently issued by the insurer’s medical examiner, even though the proposed insured made the statements (a) under an agreement that they should be treated as material, (b) for the purpose of obtaining insurance, and (c) with knowledge that the insurer believed them to be true and was relying thereon. (Sec. 1§12, Code, 1897.)</p> <p>PRINCIPLE APPLIED: The report of a medical examiner, acting for the company, showed (1) the questions put to th§ insured and the latter’s answers thereto, and (2) the questions, put by the company to the medical examiner himself, and the latter’s answers thereto. In the former, the insured unequivocally answered that he was not then using intoxicating liquors, and had never used them to excess. The facts were that, at all times during the nine years immediately preceding the making of said answers, the insured had not used such liquors, but at all times- during the three years immediately preceding said nine years, he had used such liquors to great excess. That part of the medical examiner’s report which dealt with his own answers concerning the insured’s condition of health was held by the court to constitute a declaration that the insured was a fit subject for insurance, within the meaning of Sec. 1812, Code, 1897. In an action on the policy, the company did not plead fraud in the making' of said statements.</p> <p>Held, the untrue, but non-fraudulent, statement with reference to the insured’s prior habits bore solely on his present condition of health; and inhered in the subsequently issued certificate of health by the company’s medical examiner.</p> <p>2 INSURANCE: Avoidance of Policy — Untrue Statements Bearing on Health — Certificate of Health — Estoppel. An insurance company which issuesi a policy after its own medical examiner has, without fraud on the part of the insured, reported or certified to the company that the insured is a fit subject for insurance, may not thereafter plead that the insured was not, in fact, in the condition of health required by the policy at the time of its issuance. And the answers of a medical examiner to the questions put to him by his company may as effectually constitute a certificate or report of insurable fitness as the most formal and direct statement to that effect by the said examiner. (Sec. 1812, Code, 1897.)</p>

— J. W. Anderson, Judge. Suit in equity for specific performance. The parties to the controversy are owners in severalty of lands abutting on each side of a section line. There were five or six of such abutting owners. They were all more or less desirous of having a street and highway laid and opened along such section line. It is claimed on behalf of the plaintiffs that each agreed to donate the necessary strip of ground opposite his land for such purpose.

- — Wm. Hutchinson, Judge. Suit in equity to enjoin a nuisance in tbe operation of a sand pit within the corporate limits of the plaintiff town. There was a decree for the plaintiff, and the defendant appeals.

— J. W. Anderson, Judge. Suit to enjoin the collection of' a special 'assessment levied on plaintiff’s lots, resulted, on hearing, in the dismissal of the petition. The plaintiff appeals.

— A. B. Thornell, Judge. Suit to foreclose two mortgages resulted in a decree as prayed. Subsequently, Bricker and wife were allowed to interpose a defense, and to file a cross-petition against Huber. On bearing, tbe decree was modified, and judgment was entered on the cross-petition against Huber. Tbe plaintiff and Huber appeal.

— George Jepson, Judge. The plaintiff is an attachment creditor of the defendant Flagstad. It served its attachment by ¡garnishment of Steele-Siman Company, a supposed debtor of Flagstad’s. The Farmers & Merchants National Bank of Webster intervened in the garnishment proceeding, claiming to be the owner of the funds in the hands of the garnishee. Judgment went by default against the attachment debtor.

<p>Appeal from Fremont District Court. — E. B. Woodruff, Judge.</p> <p>Action to quiet title. Decree for the plaintiff. Defendant appeals.</p>

<p>Appeal from Marion District Court. — Lorin N. Hays, Judge.</p> <p>Action on two promissory notes resulted in the dismissal of the petition. The plaintiff appeals.'</p>

<p>BONDS: Requisites and Validity — Want of Consideration — Proof. Proof of want of consideration for corporate bonds ought to be decidedly clear, when they were issued under unanimous consent of all the stockholders, and under the supervision and approval of the state authorities having control over such matters.</p>

<p>Appeal from Wapello District Court. — Francis M. Hunter, Judge.</p> <p>The plaintiff and appellee liad verdict for a commission which he claims is due him because he found-a buyer who was ready, willing, and able to buy, on terms proposed by the defendant, and defendant declined to sell on such terms. Defendant appeals.</p>

— R. M. Wright, Judge. Ti-ie action is, in effect, one claiming damages for a trespass committed by the defendant in putting its telephone poles and telephone line upon the land of plaintiff. He had a verdict.

— W. S. Hamilton, Judge. This is a habeas corpus proceeding. A writ was issued, and a hearing had in the district court. The plaintiff is a convict in the penitentary at Fort Madison. The defendant is the warden. The question involved is whether the .plaintiff's prison term has expired. The trial court denied his petition, and he appeals.

— James W. Willett, Judge. The appellee is the assignee of one Bradford, and, under his assignment from Bradford, made claim for alleged services rendered said estate by Bradford. The claim was allowed, and Farber, as administrator de bonis non, appeals.

<p>Appeal from Grundy District Court.- — Geo. W. Dunham, Judge.</p> <p>Appeal from the commitment of appellant to tbe Hos-ital for Inebriates.</p>

'Appeal from Woodbury District Court.- — -George Jepson, Judge.

<p>FRAUDS, STATUTE OF: Real Property — Leases Exceeding One Year — Admissions. An oral lease for more than a year may be established by calling the defendant lessee as a witness, and establishing: (a) That defendant had been informed that his agent had entered into such a lease; and (b) that defendant, acting solely with reference to such information, issued checks in payment of the rent. Especially is this true when such pay- • ments were continued for more than a year, with frequent effort by lessee to secure a reduction of the rent. (Sec. 4628, Code, 1897.)</p>

<p>Appeal from Monona District Court. — George Jepson, Judge.</p> <p>Action to recover the price of a railroad ticket and a penalty of $100, under the provisions of Code Section 2128-c. There was a judgment for the plaintiff, and the defendant appeals.</p>

<p>MASTER AND SERVANT: Place for Work — Non-Inherently Dangerous Defects — Servant’s Failure to Discover. A place of work is not legally unsafe for a competent and experienced servant because of the existence in such place of a simple defect, which such servant, though possessed with adequate equipment, inadvertently failed to discover, though charged with such particular duty.</p> <p>PRINCIPLE APPLIED: Brace rods are placed on the inside of engine water tenders in order to prevent bulging of the sides. They are fastened at each end with ordinary angle irons and bolts. In time, they become loose. A competent and experienced workman, equipped with proper tools and light, entered the manhole of a tender, with explicit direction to find and repair all loose rods. He later found it necessary to leave the tender, for a supply of bolts. The top of the manhole was beyond his reach. About a foot to the side of the manhole, and two feet from the bottom of the tender, was a brace rod, upon which the workmen stepped, in order to reach the top of the manhole. This rod was loose; but the workman had not discovered such fact, though he could easily have done so. The location of the rod was such that the workman, in his effort to get out of the manhole, necessarily applied a lateral pressure to the rod, whereupon it, being loose, slipped from its' place of fastening, and the workman fell and was injured. Held, the place was not unsafe, in a legal sense, by reason of the rod’s being loose.</p>

<p>Appeal from Marion District Court. — 3. H. Applegate, Judge.</p> <p>Ti-ie defeudaut was indicted for fraudulent banking. There was a verdict of guilty and judgment thereon, and the defendant appeals.</p>

<p>Appeal from Davis District Court. — D. M. Anderson, Judge.</p> <p>Appellant was indicted for “assault with intent to murder.” He was convicted of an assault with intent to do great bodily injury, and appeals.</p>

— Hubert Utterback, Judge. Defendant was convicted of the crime of lewd, immoral, and lascivious acts, as defined by Section 4938-a, Supplement to the Code, 1913; and judgment of imprisonment in the county jail for an indeterminate period, not to exceed four months, was entered against him. From this judgment, the' defendant appeals.

— J. H. Applegate, Judge. This is an action- in equity”to set aside a contract, by the terms of which plaintiff, appellant, agreed to accept as her share of her husband’s estate the sum of $1,000, certain personal property, the use of the homestead, together with the sum of $6,000, willed to her by her deceased husband in lieu of dower, homestead, and other rights, and praying that she be decreed to have a one-third interest in the estate of her deceased husband, which she…

— M. F. Edwards, Judge. Action in equity for a mandatory injunction requiring defendant to accept in payment for services rendered in handling freight for the plaintiff, a sum less than the published tariff rate for long distance haul, on the theory that the services were in the nature of switching service; or if not, that defendant had so construed the service, in that it hauled for others in a like situation and charged for so doing as for a switching service.

— Wm. Hutchinson, Judge. Suit in equity to establish the boundary line between the respective lots of plaintiff and defendant. Appellant’s brief ’ states that there was a decree dismissing the petition. It does not appear from the abstract, however, that any decree was entered. The case having been discussed on the merits by both parties, we shall treat it accordingly.—

— L. N. Hays, Judge. Some forty or more persons join as plaintiffs, and say that they are residents, citizens, and taxpayers of the territory in Marion County, Iowa, proposed to be included in and to constitute a part of the proposed Consolidated Independent School District of Dallas, Marion County, Iowa, and residents of that part of said territory lying outside of the incorporated limits of the town of Dallas, with which it is proposed to consolidate the said outside…

— W. H. Fahey, Judge. Action to recover for heat furnished. Defendant admitted amount of heat radiation furnished, but alleged that the price was excessive, and, by way of counterclaim, sought to recover previous alleged overcharges, and also amount paid for electric meter rentals. A demurrer to that portion of the counterclaim praying to recover meter rentals was sustained.

— Geo. J. Jepson, Judge. Suit in equity to reform a written contract on the ground of mutual mistake. There was a trial to the court, and a decree dismissing the petition. Plaintiff appeals.—

<p>1 MASTER AND SERVANT: Workmen’s ‘Compensation Act — Rejectioii of Act — Negligence—Nonnecessity to Plead. Negligence of a master who has elected to reject the provisions of the Workmen’s Compensation Act need not in any wise be pleaded. Proximate negligence is presumed. The master must exculpate himself. (Sec. 2477-m, Code Supp., 1913.)</p> <p>2 JURY: Qualifications, Etc. — Attorney and Client. In a mine worker’s action for personal injury, by reason of defects in the mine, a member of a local miners’ union, which local union is a part of the organization composing a district union, and to which latter union said member contributes dues, etc., is not a “client” of an attorney employed by the executive committee of the district union and paid out of funds to which said member has contributed, even though such member 'has a vote in the selection of such committee, but is in no wise financially interested in the cause on trial. t</p> <p>Evans, J., dissents as to the qualifications of the juror.</p> <p>3 JUEY: Qualifications, Etc. — Necessity for Specific Objection. Objections to the qualifications of a juror must be specific, and the objector must stand or fall thereon.</p> <p>4 NEGLIGENCE: Evidence — Similar Conditions — Scope of Admissibility. Evidence that the particular defect which rendered a mine dangerous at the point of injury existed throughout the mine, is admissible for the one purpose of showing notice to the master of the condition of the mine.</p> <p>5 NEGLIGENCE: Acts Constituting Negligence — Failure to Inspect Mine. Failure of a master to perform his statutory duty to properly inspect his mine establishes negligence, especially when he had been specifically informed of the existence of a particular danger.</p> <p>6 MASTEE AND SEEVANT: Workmen’s Compensation' Act — Negligence of Both Master and. Servant. Under the Workmen’s Compensation Act, the master is liable for an injury to the servant when the injury results from the combined contributory negligence of both of said parties.</p>

— Wm. H. McHenry, Judge. Action on a benefit certificate issued to one J. W. Olson, payable upon his death to his wife, the plaintiff herein. Judgment for the defendant in the court below, dismissing plaintiff’s petition. Plaintiff appeals. Opinion states the facts.

B. Robbins, Judge. Action in replevin to recover the possession of a certain automobile. Opinion states tbe facts. Judgment for tbe plaintiff in tbe court below. Defendant appeals.—

— J. W. Anderson, Judge. Action in equity to reform a promissory note and to recover the amount due thereon. Decree for the plaintiff. Defendants appeal.

— John F. Talbott, Judge. Action in equity to remove trustee, and for an accounting.. There was a decree for the defendant, and plaintiff appeals.

— W. M. McHenry, Judge. Action to recover damages for the death of deceased in defendant’s mine. Trial to a jury, and a directed verdict for the defendant. Plaintiff appeals.

— W. H. McHenry, Judge. Action for damages for injury in coal mine. Trial to a jury, and verdict and judgment for plaintiff. Defendant appeals.

— A. J. House, Judge. Action for damages on account of injuries resulting from- the collision of a motor truck with one of defendant’s street cars. The court directed a verdict for the defendant. Plaintiff appeals.

— W. H. McHenry, Judge. Action to recover damages because of plaintiff’s falling into a catch basin, because of a defective cover thereon, which turned edgewise and gave way when plaintiff stepped upon it. Trial to a jury, and verdict and judgment for plaintiff for $850. Defendant appeals.

— Lawrence DeGraff, Judge. Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.

— R. M. Wright, Judge. Action to restrain the collection of certain personal taxes. Opinion states the facts. Decree for the plaintiff in the court below. Defendant appeals.

<p>Appeal from Polk District Court. — W. S. Ayres, Judge.</p> <p>Suit for divorce. Cross-petition by defendant. Decree awarding plaintiff divorce and alimony. — Modified and affirmed.</p>

— Henry Silwold, Judge. Action for damages on account of alleged fraudulent representations by defendants in tlie exchange of real properties. Verdict and judgment for plaintiff. Defendants appeal.

H. Kelley, Judge. Action in equity to set aside a deed for the conveyance of real estate. Upon trial to the court, the petition was dismissed, and the plaintiffs appeal. The material facts are stated in the opinion.

<p>1 DIVORCE: Grounds — Drunkenness—Knowledge of Complainant. One who marries a known habitual drunkard, under promise of the offending party to reform, will not be granted a divorce on tbe ground that such habit of drunkenness continued.</p> <p>2 DIVORCE: Grounds — Cruelty—Desertion—Evidence. Evidence held insufficient to grant a divorce on the grounds of either cruelty or desertion.</p>

— J. J. Clark, Judge. Action at law to recover damages from defendant for the alleged seduction of plaintiff. Judgment for plaintiff, and defendant appeals.

— W. H. McHenry, Judge. The defendant appeals from a judgment of $100 on a demand for $10,000 for having alienated the affections of plaintiff’s wife.

— J. B. Rockafellow, Judge. Action by executor of the estate of Sarah Briggs, deceased, against defendants on a contract, resulted in judg-, ment as prayed. The defendants appeal.

— James W. Willett, Jndge. Action to recover damages for forcible defilement. Judgment for the plaintiff in the court below. Defendant appeals. Opinion states the facts.

— C. W. Vermilion, Judge. Action for damages. Verdict in favor of the defendant King, and against the defendant W. J. Steckel, for $9,361.65. From a judgment rendered against him thereon, defendant Steckel appeals. The facts are stated in the opinion.

— C. A. Dudley, Judge. Defendant and appellant claims that, by a contract between the parties, defendant is entitled to retain half of the proceeds of a judgment, as compensation for services in obtaining that judgment, and that, at all events, his services were reasonably worth a sum equal to half of said proceeds. Plaintiff claims the contract is void for champerty, and that the jury allowed the defendant to retain more than his services were worth. Defendant appeals.

— Lawrence DeG-raff, Judge. The plaintiffs and others in the same class, and all minors, were by the defendants excluded from the benefits of a public school, under a rule adopted by the defendant board. A petition seeking a mandatory order to restore the plaintiffs to admission in said schools was dismissed, and thé plaintiffs appeal.

— W. H. McHenry, Judge, Action upon a note for the recovery of the purchase price of a popcorn machine. The purchase price was $375, of which $150 has been paid. Defendant claimed he had rescinded the contract because the machine did not comply therewith, and that he never accepted the machine, and he asks to recover the payment made.

<p>1 HUSBAND AND WIFE: Failure to Support — Willfulness—Evidence —Sufficiency. Evidence reviewed, and held sufficient to make a prima-facie case of willful refusal and neglect to support a wife. (Sec. 4775-a, Code Supp.. 1913.)</p> <p>2 HU-SBAND AND WIFE: Failure to ’Support — Desertion—JustiScation. Insertion of a wife by -the husband -does not absolve the husband from the duty to support, unless the wife’s conduct has been such as to grant him a divorce.</p> <p>3 HUSBAND AND WIFE: Failure to Support — Defenses. A charge against a husband of willfully failing and neglecting to maintain and provide for his destitute wife, may be met by the defense: (a) That her conduct had been such as to justify a divorce on his part, and that, ,as a consequence, he left her; (b) that his ill health prevented him from maintaining her; -and (c) that he was unable to obtain employment</p> <p>HUSBAND AND WIFE: Failure to Support — -Evidence-—Transactions Subsequent to Indictment. In a prosecution of a husband for failure to support his wife, evidence of what the husband did subsequent to the indictment may, if relevant and material, be admissible, as bearing on the situation of the parties at and prior to the return of the indictment.</p> <p>5 HUSBAND AND WIFE: Failure to Support — “Cause” for Desertion, and Nonsupport Contrasted. A husband who leaves his wife without any cause may, nevertheless, have good cause for failure to maintain her: to wit, sickness on his part, inability to secure employment, etc. “Cause” for literal desertion and “cause” for non-support must not be confused. (Sec. 4775-a, Code 'Supp., 1913.)</p>

— Milo P. Smith, Judge. While appellant was in an automobile driven by her fifteen-year-old son, this car collided with a street car operated by the defendant company, and plaintiff brings suit for damages sustained by alleged negligence in the operation of said street car. Verdict was directed for defendant, and plaintiff appeals.

— M. F. Donegan, Judge. This is a contest upon the will of Patrick Hanrahan. A verdict resulted, admitting the will to probate. The contestant appeals.

<p>1 COURTS: Jurisdiction — Dismissal—Effect. The dismissdl of an action terminates the jurisdiction of the court therein, and nullifies every previous order made therein. So held in an action wherein the court had ordered an autopsy on the body of the deceased plaintiff.</p> <p>PRINCIPLE APPLIED: An action for damages for personal injury was pending in Cedar County. The plaintiff resided in Muscatine County, and died there, pending said action. The defendant immediately obtained from the Cedar district court an order for an autopsy on the bo’dy of said plaintiff, on the claim that said autopsy would reveal death by cancer, and not by reason of any injury inflicted by defendant on said plaintiff. Following the order for an-autopsy, said action was immediately dismissed. Later, the court made a further order that the sheriff take possession of the dead body in Muscatine County. Held, the dismissal terminated all jurisdiction in the court over the action, and nullified the order for the autopsy and all orders pertaining thereto.</p> <p>2 INJUNCTION: Preliminary and Interlocutory — Dissolution—Degree of Proof. When the nature of a case is such that its purpose will be wholly defeated unless a temporary injunction is issued, such temporary injunction should not be dissolved, except on a showing that would defeat the case on its ultimate merits. So held where the injunction was to restrain an autopsy on the body of a deceased person.</p>

— Francis M. Hunter, Judge. The accused, Frank Dangelo, with others, was indicted for murder in the first degree. He was first put on trial, and convicted of murder in the second degree, and sentenced (o .imprisonment in the penitentiary for life. He appeals.—

<p>Appeal from Greene District Court. — M. E. Hutchison, Judge.</p> <p>Suit against a contractor and the surety on Ms bond for failure to perform the contract. Various defenses, were interposed by cross-petition. The trial court cancelled the contract and the bond sued upon. Plaintiffs appeal.</p>

— Wm. Hutchinson, Judge. Appellant seeks an injunction to restrain the appellees from moving certain buildings which appellee James H. Noble placed upon the land of appellant’s ward, while a tenant. This relief was denied, and the petition of appel: lant dismissed, and he appeals.

— Francis M. Hunter, Judge. Plaintiffs obtained decree that defendants execute deed to them without any reservations therein, making the lands conveyed subject to a lease made by defendants to one Kendall. The defendants appeal, and contend that the sale was made subject to such a lease.

— H. E. Fry, Judge. Proceeding in equity involving the propriety of an order to a receiver of an insolvent corporation. The controversy arises between the receiver of the corporation and the owner of the real estate which was occupied as a factory by the corporation.

<p>Appeal from Pocahontas District Court. — D. F. Coyle, Judge.</p> <p>While defendant bank owned certain lands, a drainage district was established, and an award made for anticipated injury to said lands. No security for payment of these damages was given, nor payment of same made, nor the land taken, until after these lands were sold by the bank to those whom plaintiffs represent. The trial court held that the vendees are entitled to said award, and.the vendor bank appeals.</p>

<p>Appeal from Bremer District Gourt. — C. H. Kelley, Judge.</p> <p>Milton L. Willson was employed by the defendant corporation to work about a movable dirt shovel, which operated on its own power; and while so employed, was injured, through the negligence of a fellow employee. Verdict was directed for the defendant, because the trial court held that the work in doing which Willson was injured was in no manner connected with the use and operation of any railway. Plaintiff appeals.</p>

<p>1 DIVORCE: Evidence — Sufficiency of One Ground. One fully establisted ground for divorce is all-sufficient, and .otter alleged grounds may be ignored.</p> <p>2 EVIDENCE: Relevancy, Materiality, and Competency — Ctaracter or Reputation. Prior to tte impeactment of a witness, evidence of tis good, moral ctaracter or tis good reputation for truth and veracity is not material.</p>

<p>1 MASTER AND SERVANT: Wrongful Discharge — Damages—Mitigation — Burden of Proof. The prima-facie measure of damages for the wrongful discharge of a servant is the contract wage. The defending master may counter with a showing, in mitigation, of what the discharged servant actually did earn, during the contract period, in any line of employment, or of what he might reasonably have earned in employment of the same general nature as covered by the contract.</p> <p>2 DAMAGES: Measure of Damages — Adopting Minimum in Lieu of Maximum. A litigant may adopt a minimum measure of damages in lieu of a maximum fixed by law. So held where a wrongfully discharged servant, instead of demanding the measure of recovery fixed by law, demanded recovery for the cash deposit made by him in order to secure the employment.</p> <p>3 MASTER AND SERVANT: Wrongful Discharge — Damages—Ulnauthorized Mitigation. A master who grants employment upon the servant’s malting a cash deposit, and then wrongfully discharges the servant, may not, in defense of an action to recover the deposit, prove, in mitigation of damages, what the servant did earn or might have earned, during the period of wrongful discharge, in other employment.</p> <p>4 CONTRACTS: Acceptance — Acquiescence and Acceptance of Benefits. One who is, originally, an entire stranger to a contract, may be legally bound thereby' by subsequent acquiescing conduct, including the accepting of benefits. So held where the agent of a corporation individually entered into a contract with a subagent, and the corporation received and retained the consideration advanced by the subagent.</p> <p>5 CONTRACTS: Construction — Parties—Nonprivity. No privity of contract exists between agents who have separate and distinct contracts with the same principal, covering separate and distinct territory, in which contracts each agent agrees to forfeit to his principal a stated discount in case he sells the prineipal’s goods outside the territory covered by his contract. It follows that an agent who sells in prohibited territory is not liable in damages to the agent in such territory.</p>

<p>1 EXEMPTIONS: Property and Eights Exempt — Personal Earnings of Wife. The personal earnings of the wife of the head of a family, earned by the wife in an independent employment, are not exempt from execution or attachment levy. (Sec. 4011, Code, 1897.)</p> <p>2 HUSBAND AND WIFE: Wife’s Separate Estate — Personal Eamings — Ownership—Exemption. Personal earnings of a wife in her own independent employment belong solely to the wife. So held where the husband claimed that the wife’s earnings were exempt, on the theory that such earnings belonged to him. (See Secs. 3162, 3164, Code, 1897.)</p> <p>3 COSTS: Taxation — Futile Garnishment. Costs attending a futile garnishment should be taxed to the execution, or attaching, plaintiff. (Sec. 3853, Code, 1897.)</p> <p>4 COSTS: Taxation — Garnishee’s Answer to Levying Officer. The taxable costs for serving an execution include the taking of the-garnishee’-s answer by the levying officer. (Secs. 3939, 3941, Code, 1897.)</p> <p>5 COSTS: Taxation — Mileage. Double mileage may not be taxed by an officer in going to one locality and serving two persons in the same proceeding. The taxable mileage is to and from said locality, plus the mileage in going from one person to the other. (Sec. 511, Par. 12, Code Supp., 1913.)</p> <p>6 COSTS: Taxation — Notice of Garnishment. The taxable costs for serving an execution do not include the service on the execution defendant of notice of garnishment. (Sec. 511, Par. 2, Code Supp., 1913.)</p>

<p>1 QUO- WARRANTO: Nature and Grounds — Illegality in Corporate Organization. — Schools and School Districts. An information in the nature of quo warranto is the exclusive remedy to test the legality of'the organization of a municipal corporation. So held as to a public school corporation. (Sec. 4313, Code. 1897.)</p> <p>2 SCHOOLS AND SCHOOL DISTRICTS: Consolidated Districts— Election — Notice—Sufficiency. The statutory requirement that “not less” than ten days’ notice of elections shall be given does not prohibit a fifteen days’ notice. (Sec. 2746, Code, 189.7.)</p> <p>3 SCHOOLS AND SCHOOL DISTRICTS: School Buildings — Improper Location of Sites — Remedy. The exclusive remedy to test the fitness and propriety of a schoolhouse site (no fraud being properly pleaded) is by appeal from the decision of the board of directors to the county superintendent, and from the latter’s decision to the state superintendent of public instruction. (Secs. 2818, 2820, Code, 1897; Sec. 2773, Code Supp., 1913.)</p> <p>4 SCHOOLS AND SCHOOL DISTRICTS: Meetings — Meetings Outside District' — Legality. A school board may validly transact its ordinary business at any ' point in any civil township in which any of the territory of the’district is situated. So held where the board met at a point outside the district, but within the township which embraced part of the district, and selected a schoolhouse site. (Sec. 2757, Code Supp., 1913.)</p>

<p>MUNICIPAL CORPORATIONS: Streets, Etc. — Defects, Obstructions, and Liability. Negligently permitting snow and ice, by non-natural causes, to accumulate upon the public streets, in a rough., rounded, and uneven condition, matures a cause of action in favor of one injured thereby, provided the injured party is not himself guilty of contributory negligence.</p>

— Milo P. Smith, Judge. Action to recover damages for personal injuries. Opinion states the facts. Judgment for the plaintiff. Defendant appeals.

— H. E. Fry, Judge. Suit to partition real estate. The defendant claimed to be the absolute owner of the real estate involved, and therefore denied the interest of - the plaintiffs therein. The real question at issue was whether the defendant was the beneficial owfier of the property, the legal title to which was held in his lifetime by J. H. Servis, the deceased husband of the defendant.

— E. M. McCall, Judge. Suit in equity, based upon alleged fraudulent representations relative to mining privileges. There was a decree for defendants. Plaintiff appeals. The necessary facts are stated in the opinion.

<p>Appeal from Wapello District Court. — Seneca Cornell, Judge.</p> <p>Jones & Ricard, who had operated a restaurant known as the Imperial Grill in.Ottumwa for about three months, on September 15, 1916, filed a general assignment for the benefit of creditors to E. EL Emery, as assignee. Notice such as required was given, and lie duly qualified. The building occupied belonged tó A. G. Leighton, and had been leased by him to Jones & Ricard at a monthly rental of $125, payable monthly in advance. Rent accrued at the time of the assignment amounted to $132.50, and the rent during the six months following would amount to $750, as the lease commenced January 12, 1916, and extended until September 20, 1920.</p> <p>The assigned property consisted , of “leasehold, soda fountain carbonator, steam table, cigar cases, ice box, buffet, eating and other tables and chairs, candy case, store pastry, oven, work table, water heater, phonograph and discs, urns, lighting fixtures, linen, silver and tableware and dishes, glassware, tools and appliances, cash register, fans, typewriter, safe, food provisions, supplies and stock in trade, and any and all personal property on said premises or connected therewith and pertaining to said business;” and the place was described as the southeast corner of Market and East Second Streets in the city of Ottumwa, Iowa, and the business, as general restaurant; also, the SE 12 feet of Lot 113 and the NW 33 feet of Lot 112, Block 7, city of Ottumwa, Iowa, subject to a mortgage of $3,000 to bank. The equity in said property is estimated by the assignee to be worth about $1,250, but assignee has so far been unable to find a purchaser for the same. The estimated value of this property, as found in the inventory, was $2,885.94, together with $21 in cash, $221.62 in accounts, and the lot, subject to mortgage, estimated to be worth $1,250, or $5,378.66 altogether.</p> <p>On the day the assignment was filed, the assignee applied to the district court for an order authorizing him to continue the business, representing that the furnishings, fixtures, etc., were new; that closing the business “would result in loss in trade and income and in prestige; whereas, by keeping it a going concern, some net revenue may be derived, and the property would command a much higher figure at sale as a going concern than as a dead one.” He further represented that he had “not sufficient cash to pay help or buy the supplies necessary for operating the business;” that he had consulted the creditors, and the consensus of their opinion was in favor of conducting the business “experimentally for a while, say a month, under the order of court;” and he recommended that an order be entered allowing him “to borrow sufficient money to conservatively operate said business for a month, same to be paid in full, and not pro rata, out of the first proceeds or assets out of the estate or of the receipts.” Thereupon, the court entered “an order permitting him to conduct the business as a going concern for approximately a month; and the court, being informed in the premises, does hereby order that the assignee continue the business for a period of not exceeding 30 days, and to that end may employ necessary help and purchase supplies and incur an indebtedness of not exceeding $200, to be paid as a preferred claim out of the proceeds of the business or the property covered by the deed of assignment.” On oral application, October 14, 1916, an order was entered by the court that “the assignee in this cause be and he is hereby authorized to continue business under former order for one week further.” On October 21, 1916, another order was entered, on oral application, “that the assignee in this canse be and he is hereby ordered to continue business under former order for a period of 30 days from date.” On December 20th of the same year, the assignee reported that operating the restaurant had resulted in financial loss, and had been discontinued, and recommended that the personal property be sold separately or in bulk at public or private sale, and called the court’s attention to the fact that about $565 in rent had become due and remained unpaid, and prayed that the landlord be cited to show cause, if any he had, why the court should not authorize such sale,” and hold the proceeds thereof subject to the landlord’s lien, in such sum and for such term and upon such terms and conditions as the court may determine.” The landlord, Leighton, appeared on the same day, and Avaived all objection to the sale, insisting, however, “that, as to the full proceeds of all of such property so sold, the court should require the assignee to hold and apply the same first to the payment of said rent due and to become due for such period as the court may fix.”</p> <p>The court ordered the assignee to sell the property, as prayed, subject to its approval, and that the proceeds “be held by the assignee pending the further order of the court determining the rights of the landlord and of all other persons thereto.” The personal property was sold for $1,688.62. Out of this, the assignee first paid $140 for wages of employees, and he so reported, and that he had advanced $183.71, and paid bills out of the business in the experi-. mental conducting of the business, $1,661.45, and had contracted bills which were unpaid, aggregating $1,029.07. He claimed $100 for his services and a like amount for his attorney, and stated that there was owing accrued rent to Leighton $565, and $317.50 to accrue before the expiration of six months after the making of the assignment. He acknoAvledged receipt of $1,897.62 in prosecuting the business, and that he had in bank $96.72, of which $52 had been collected on accounts. On this report, he prayed that the moneys in his hands be applied preferentially in the following order: (1) The indebtedness of $1,029.07, incurred in continuing the business; (2) reimburse assignee the $183.71 advanced by him, and labor claims of $140; (3) costs, including a fee of $100 for his services; (4) attorney’s fee of $100; (5) rent due landlord, A. O. Leighton; and (6) general creditors. On March 19, 19Í7, the court entered an order directing the assignee, first, to pay the third and fourth of the above items; second, the labor claims; third, reimburse himself the $183.71; fourth, reimburse himself any other items advanced; fifth, pay outstanding debts incurred in conducting business; sixth, rents owing Leighton; and seventh, the general creditors.- As this order was entered within three months from the filing of assignee’s report of claims, it was, by the order of March 31st following, suspended, and assignee directed not to make any payments until “further order and proceedings of court.” On the same day, Leighton filed objection that he had a lien on the property for the rent owing him; and later, on April 27, 1917, filed a petition of intervention, in which he showed the rent due and to become due, as heretofore stated, alleged that property on which same was a lien, valued at $2,000, came into assignee’s possession, was sold under order of court, as heretofore recited, and that proceeds in excess of $1,600 were derived therefrom; and he prayed that, after the satisfaction of the labor claims in the sum of $140, the court direct payment, of rent from the proceeds of said sale. Upon submission of the objection and this petition, the court rescinded the order of March 31, 1917, and confirmed that of March 19, 1917, and found that:</p> <p>“The landlord, A. C. Leighton, has a just claim against said estate in the sum of $882.50 for rent of said restaurant-premises at the southeast corner of Market and East Second Street in the City of Ottumwa; that part of said rent was past due and delinquent at the time the court, by its orders of September 15, 1916, October 14, 1916, and October 21, 1916, authorized the assignee to continue the business; that, by not exercising his right to aSsert ■ landlord’s lien, and by not objecting to said orders, and by his appearance in writing, filed December 20, 1916, to application of the assignee for rule on him to show cause why the assignee should not be permitted to sell the personal property, the landlord is now estopped to assert priority of his lien over costs of the estate, duly proven preferred labor claims, reimbursement to the said E. H. Emery for $183.71 moneys advanced to himself as assignee, under order of court, and indebtedness incurred by the assignee in the sum of, to wit, $1,029.07, for the employment of necessary help and purchase of supplies in conducting said business under said orders of court. That, after payment of the foregoing items out of proceeds realized by assignee from sale of property of the estate, now confirmed, the assignee is ordered to apply the balance, if any, upon said landlord’s claim. And it further appearing that the assignee holds, as the property of said estate taken from said restaurant premises, one coffee urn, one ice box in sections, electric light fixtures, and tableware, consisting of knives, forks., etc., -the same are hereby impressed with a landlord’s lien in favor of said A. C. Leighton upon his said claim. If the said A. C. Leighton and assignee can agree on prices at which such articles may be sold, the assignee is authorized to sell same, and apply the proceeds upon said landlord’s lien. If they cannot agree, or find a purchaser, either may apply to the court for order to cover. The court further orders that if, by the foregoing, the said landlord’s claim is not paid in full, that then, out of the proceeds, if any, of sale by the assignee of the equity in the residence property, 425 West Fourth Street, Ottumwa, comprising part of said estate, the assignee shall first pay the balance of the said landlord’s claim, before the said proceeds are used for any other purpose except necessary costs, unless the court, upon' notice, may order to the contrary.”</p> <p>A. C. Leighton appeals.</p>

<p>1 WILLS: Construction- — -Remainders to “nearest Blood Connection.” A devise of a life estate to a daughter (who dies without issue), with remainder to the life tenant’s “nearest blood connection,” carries the remainder (neither parent surviving) to the sole surviving sister of the life tenant, in preference to surviving nephews and nieces.</p> <p>2 REMAINDERS: Vested or Contingent — Wills—Intent of Testator. A devise of a -life estate, with evident contemplation that the remainder would pass to the possible children of the life tenant, but with a later specific provision that the remainder shall pass to the life tenant’s “nearest blood connection,” with a further provision for trusteeship over the property during the life of the life tenant, postpones a vesting of the remainder until the death of the life tenant.</p>

— Wm. Theophilus, Judge. Action of replevin for the possession of a colt. There was a verdict and judgment for the defendant, and the plaintiff appeals.

— Seneca Cornell, Judge. The appellant intervener is a mortgage creditor of the defendants.- The appellees claim that they have priority over the mortgage by reason of the levy of an attachment. The trial court held this claim of priority good in part, and the intervener appeals.