Volume 186 — Iowa Reports

— W. S. Hamilton, Judge. Action for rent due. Landlord’s attachment was issued and levied upon the property of the tenant upon the leased premises. Intervener Currier intervened as an alleged purchaser of the property thus attached. The issue on the intervention was tried by the court without a jury, and resulted in judgment for the plaintiff, dismissing the intervention. The intervener appeals.

<p>HIGHWAYS: Prescription — Public Ownership of Land. Evidence 1 reviewed, and held sufficient to sustain a finding that land either was a part of highway, having been acquired by prescription, or was owned by the public, as being below the high-water mark of a navigable river.</p> <p>DEDICATION: Nature and Requisites — Evidence—Estoppel—Buy2 er’s Reliance on Plats. Evidence reviewed, and held .sufficient to sustain a finding that defendants' had dedicated their rights, if any, to the public.</p>

<p>CHATTEL MORTGAGES: Cancellation of Lien. A mortgage lien is</p> <p>1 not lost by tbe unexecuted acceptance by the mortgagee of an offer by one of several joint mortgagors to surrender tbe mortgaged property, followed by tbe turning over of the said property by tbe mortgagors, with tbe consent of tbe mortgagee, to a third party, who agreed to pay to mortgagee the unsurrendered mortgage notes.</p> <p>CHATTEL MORTGAGES: Burden to Establish Cancellation. He</p> <p>2 who asserts that a mortgagee has so conducted himself as to work a cancellation of tbe mortgage lien must so show by a preponderance of the testimony.</p>

<p>RECEIVERS: Grounds of Appointment — Assets of Corporation in Danger of Dissipation. In a wife’s suit in equity for assembling assets of corporation and distribution of its assets, where stock belonging to her husband had been awarded to her as alimony, and then, on appeal, the provision for alimony was converted into a money judgment, with right to hold the stock until the money was paid, and where the husband, under a dissolution of the corporation, claimed by her to be illegal, has secured the money for the said stock, and claims that it has been paid on his personal debts, a preliminary order appointing a receiver . to take possession of such assets of the corporation as are discoverable will not be interfered with, it appearing prima facie that the assets are in danger of dissipation or concealment, and that the assets, largely in notes and mortgages, will draw interest in the hands of the receiver as well as anywhere, and no objection being made to personality of receiver nor as to security exacted from bim.</p> <p>Salinger, J., dissents.</p>

— W. W. Cárdele, Judge. Action by plaintiff to recover a balance alleged to be due on a promissory note, executed by the defendant, and to foreclose a pledge of 95 shares of stock owned by the defendant in the Citizens Trust & Savings Bank, of Perry, Iowa, which were given as security for the payment thereof. Defendant filed a cross-petition, asking damages for false representation in the sale of property by plaintiff to defendant.

F. Coyle, Judge. Action at law to recover damages growing out of personal injuries sustained by plaintiff while in the employ of defendant, while in the construction of a drainage ditch. There was a trial to a jury, resulting in a verdict for plaintiff for $4,500. After the verdict, and before judgment, the trial court sustained defendant’s motion in arrest of judgment, and rendered judgment against plaintiff for costs. The plaintiff appeals.

— C. 0. Kelley, Judge. As we view it, the ultimate question is whether the board of supervisors of the county acted without jurisdiction in vacating an alleged highway. All other questions turn upon that. The trial court held that the action of the board was void, and the plaintiffs appeal.

Appeal 'from Scott District Court. — William Theophilus, Judge. ' The question in this case involves the construction of Section 1481-al, Code Supplement, 1913, and the real question is whether the exemptions found in that statute are limited only to institutions of the character involved in this suit within the state of Iowa. The district court held that the statute, properly construed, limited the exemptions to institutions and societies within the state of Iowa.

— C. H. Kelley, Judge. The plaintiff claims that defendant negligently set fire to certain stocks of farming implements kept by the plaintiff in its warehouse at Mason City. There was verdict and judgment thereon for plaintiff, and defendant appeals.

— H. K. Evans, Judge. Suit by a guardian to set aside a deed previously executed by liis ward. There was a decree for the defendant. Later, a new trial was ordered and had. As a result of the second trial, partial relief was given the plaintiff. The defendant has appealed.

— H. B. Boies, J udge. Quo warranto proceeding to test the legality of the appointment of the defendant as judge of the municipal court of the city of Waterloo. The district court dismissed the proceeding, and the plaintiffs appeal.

— C. W. Vermilion, Judge. Action to recover for personal injuries alleged to have been sustained while one Walter O. Warner was in the employ of the defendant. A verdict was directed for the defendant, and plaintiff appeals.

— Tuos. Arthur, Judge. ■ Action at la>v to recover on a promissory note. The petition was in two counts. At the .close of the testimony, the court sustained defendant’s motion for a directed verdict as to the first count, and submitted to the jury the issues raised by the second count. There was a disagreement of the jury as to this. Plaintiff’s motion for a new trial as to the first count was sustained, .and defendant appeals.

<p>SALES: Conditional Sales — Recovery of Payments — Allowance for 1 Use and Depreciation — Pleading. Even if a buyer of a piano under a conditional sale contract, upon the seller’s retaking possession for default in payments, would be entitled to the return of such payments, he cannot recover such payments without deducting reasonable allowance for the use and depreciation of the piano.</p> <p>Evans and Pbeston, JJ., dissent.</p> <p>PLEADING: Demurrer — Determination—Cannot Aid Pleading. The 2 court is obliged to either overrule or sustain in toto a demurrer to the petition as the pleader has seen fit to frame it, and cannot add to or take anything from it, in aid of the ruling. In a suit at law by the buyer of a piano, under a conditional sale contract, to recover payments made, on a demurrer to the petition on the ground of failure to take notice of reduction for the use and depreciation of the piano, the court can only sustain the demurrer, as it cannot add to the petition a tender to do equity.</p> <p>Evans and Pbeston, JJ., dissent.</p> <p>SALES: Conditional Sales — Recovery of Payments — Allowance for 3 Use and Depreciation — Pleading—No Necessity for Counterclaim. In an action by the buyer for 'the recovery of payments made upon a piano which has been retaken by the seller, the seller is not required to plead the use and depreciation of the piano by way of set-off or counterclaim, as the buyer is required to'plead the amount of her unpaid demand after taking into consideration such use and depreciation.</p> <p>Evans and Peeston, JJ., dissent.</p> <p>PLEADING-: Demurrer — Conclusion of Law — Non-Rescission of Con-4 tract. Whether the retaking by the seller of a piano, which had been sold on payments, with title remaining in seller, for default of payments, was a rescission of the contract, was a question of law, and a demurrer to a petition for the recovery of payments made thereunder did not admit the conclusion in the petition that, under the law, the facts alleged in the petition worked a rescission.</p> <p>SALES: Conditional Sales — -Retaking Possession — Non-Rescission. 5 The retaking -of a piano, where -the contract for its conditional sale authorizes a taking of possession on default in payments, does not work a rescission of the contract so as to require restoration by the seller of payments already made by the buyer, but is a proceeding under and in affirmance of the contract.</p> <p>SALES: Conditional Sales — Retaking Possession — Seller Can Retain 6 Payments Made. Regardless of any forfeiture clause in a conditional sale contract under which the seller retains title to property, with right to retake it on default of the buyer, the seller may, where the buyer i-s wholly at fault, retake such property without rescission, and without repaying any partial payments received by him.</p> <p>SALES: Conditional Sales — Retaking—Right to Possession by Seller. 7 That a seller makes claim to be the absolute owner of a piano which he has retaken from the buyer under a conditional sale contract providing for such retaking in case of default in payments, and providing that title shall remain in the seller, only adds possession to the title, and does not give the buyer the right to recover the payments he has made.</p>

<p>APPEAL AND ERROR: Review — Brief Points. Appellate review is 1 limited to what is presented by the “Brief Points.”</p> <p>APPEAL AND ERROR: Harmless Error — Evidence Received With-2 out Objection. Where no objection was made to reception of testimony, nor motion made'to strike out the same, its exclusion is not error.</p> <p>TRIAL: Reception of Evidence — Rejection—Inadmissible for Pur3 pose Offered. Evidence is properly excluded which is not admissible for the purpose for which counsel declares it is offered.</p> <p>HUSBAND AND WIFE: Evidence — Alienation of Affections — Im4 materiality of Testimony. Testimony of a third person that he had talked with the husband as to his conduct towards his wife, and as to what sort of a girl she was, and that she was a nice and pleasant little lady, there being no showing that the defendants in the alienation suit had anything to do with the witness’ going to the husband, did not in any degree tend to prove that the defendants did anything towards promoting the continuance of the marital relation, or to bring about proper treatment of the wife by the husband.</p> <p>APPEAL AND ERROR: Review — Waiver of Objections by Not Rais5 ing in Brief Points. Action of trial court in rejecting testimony will not be considered on appeal, where not in the class covered by the brief points.</p> <p>. .USBAND AND WIFE: Evidence — Alienation of Affections — Imrna6 terial Testimony. Where, in an action by thp wife against the parents of her husband for the alienation o’f his affections, one of the defendants had testified to having told the wife that rumor accused her of unehastity, and that the husband had said it- was a lie, an explanation by the witness why she told the matter would not tend to show that the witness was making an effort with either the husband or the wife to induce either or both of them to continue the marital relations.</p> <p>EVIDENCE: Husband and Wife — Alienation of Affections — Mental 7 Attitude. In an alienation suit, the wife may testify directly to her mental and emotional attitude toward her husband, and causes producing the same. Therefore, held that, in such an action by the wife against the husband’s parents, it was error to strike out testimony of one of the defendants as a witness that she was willing, at ithe time the wife was taken from defendants’ home, for her to remain.</p> <p>HUSBAND AND WIFE: Alienation of Affections — Grounds—Design 8 and Malice. There can be no recovery by the wife against the parents of her husband for the alienation of his affections unless they designed and intended to effect an alienation and separation, and what they did in furtherance of this design accomplished the ■alienation and separation; and malice must be shown. The parents are within their rights in giving advice to their children, even after the marriage of the' children, and if the advice, being merely indiscreet, tends to promote an estrangement, the parents are within their rights in giving such advice, unless prompted by malice.</p> <p>APPEAL AND ERROR: Review. In determining whether there 9 was a case for the jury, the appellate court cannot interfere with the verdict of the jury unless it can say, as a matter of law, ■that the proof adduced was insufficient to sustain the verdict; and the narrow question is, Could the jury find that the necessary elements in the proof have been established?</p> <p>TRIAL: Directed Verdict — Strongest Inferences Reasonably Deduci10 ble from Most Favorable Evidence. As against a motion to direct a verdict for the defendant, the plaintiff is entitled to have taken as true the evidence adduced, and to have the benefit of the strongest inferences reasonably deducible from such evidence.</p> <p>HUSBAND AND WIFE: Alienation of Affections — Circumstantial 11 Evidence — Nature of Proof. An alienation suit can be established by circumstantial evidence, by facts that do not make the whole case, aided by just inferences from these facts in combination with others.</p> <p>HUSBAND AND WIFE: Alienation of Affections — Sufficiency of 12 Evidence. Evidence reviewed, and held sufficient to sustain a verdict of the jury in favor of a wife against the parents of her husband for alienation of affections.</p> <p>TRIAL: Instructions — Form, Requisites, and Sufficiency — Correct but 13 Not Explicit — Waiver. The remedy for an instruction that merely lacks in fullness is to offer instructions supplying what is lacking.</p> <p>APPEAL AND ERROR: Review — Instructions—Insufficient Assign-14 ment. It is not the duty of the appellate court to examine the charge of eight pages as a whole, to ascertain whether, somewhere in it, there is an instruction which offends against a rule asserted in a brief point.</p> <p>NEW TRIAL: Grounds — Newly Discovered Evidence — Misconduct 15 of Jury. The court did not err in overruling a motion for a new trial on the ground of newly discovered evidence, in that, during ^n. adjournment of the trial, the plaintiff engaged in a conversation in a low tone with one of the jurors, where there was no showing that the defendants were not advised of this before the trial closed, and the matter was not called to the attention of the court before the motion for the new trial was filed; as it was their duty to make objection then, and to ask an inquiry into what was said and done, and to make application to have the panel dismissed and a new trial then ordered.</p> <p>NEW TRIAL: Grounds — Newly Discovered Evidence — Insufficient 16 Showing — Lack of Diligence. Such diligence as would make it an abuse of the discretion of the court to overrule a motion for new trial on the ground of newly discovered evidence is not shown by an affidavit stating “that, prior to the trial, I made all the investigation that I could, in effort to find testimony to present at said trial, and then I did not learn of the matters and things hereinafter set forth until the close of the trial.”</p>

— AYilliam Hutchinson, ^ Judge. The plaintiff and appellee has verdict and judgment for damages caused by her alleged debauchment by defendant, and his alleged wrongful discharging her from his employ.

— Trios. J. Guthrie, Judge. This is an original action in certiorari to test the legality of an order of the court below,- committing plaintiff to jail for refusing to answer certain questions propounded to him in a proceeding auxiliary to execution. The witness refused to answer, upon the ground that his answers might tend to incriminate him.

<p>WILLS: Validity — Undue Influence — Presumption — Relationship— Burden of Proof. Affectionate relationship existing between mother and daughter, and the fact that they have lived together most of their lives, will not cast upon .the child, as a beneficiary in the -mother’s will, the burden of proof of showing that the will was without undue influence.</p>

<p>ASSIGNMENTS FOR BENEFIT OF CREDITORS: Administration 1 of Assigned Estate — Executory Contract of Assignor — Assignee to Accept or Repudiate. An assignee for the benefit of creditors takes an executory contract of his assignor to convey land, subject to carrying it out or repudiating it within a reasonable time.</p> <p>VENDOR AND PURCHASER: Rescission — Restoration of Oonsidera2 tion. Where $500 had been paid on a land contract, the vendor could not repudiate the same without paying back what had been paid.</p> <p>ASSIGNMENTS FOR BENEFIT OF CREDITORS: Administration 3 of Assigned Estate — Assignee Represents Assignor and Creditors. While the assignee for benefit of creditors in the management of the estate represents both the assignor and creditors, his primary duty is to the creditors.</p> <p>ASSIGNMENTS FOR BENEFIT OF CREDITORS: Administration 4 of Assigned Estate — Contract of Assignor — Assignee Must Return Benefits upon Repudiation. While the right rests in the assignee for benefit of creditors to refuse to perform his assignor’s improvident contract, yet he so far stands in the place of the assignor that he cannot repudiate the contract and at the same time retain for the creditors the benefits received from the contract.</p> <p>ASSIGNMENTS FOR BENEFIT OF CREDITORS: Filing Claims— 5 Non-Necessity on Repudiation of Contract. One who has, under an executory contract of purchase of land, made an advance • payment, may recover the same of the vendor’s assignee for the benefit of creditors, who has repudiated the contract, without filing the claim against said estate.</p>

Appeal /rom Pollo District Court. — Hubert Utterback, J udge. Action to recover the purchase price of certain horses. Verdict and judgment for the plaintiff. Defendant appeals.

— Hubert Utterback, Judge. Action in certiorari to test the action of the civil servicé commission in discharging plaintiff from the police force. Demurrer to the petition. Demurrer overruled. Defendants appeal.

<p>CRIMIN'AL LAW: Former Jeopardy — Search Warrant Proceedings 1 against Liquors. Search warrant proceedings under Sec. 2415, Code Suppl. Supp., 1915, while in their nature quasi criminal, are, however, primarily against the liquors seized, and not against a person voluntarily appearing therein for the purpose of claiming the seized liquors; and therefore Sec. 2, Ch. 322, 37th G. A., granting the State the right to appeal in such proceedings, is not unconstitutional as violating the provision of Sec. 12, Art. 1, of the State Constitution, that one cannot be placed in a second jeopardy for the same offense; and therefore one appearing to claim such liquors was not placed in jeopardy, and an appeal lies by the State to the district court from the adjudication in the justice’s court that the liquors were not kept for sale in violation of law.</p> <p>CONSTITUTIONAL LAW: Ex Post Facto Laws — Relate Only to 2 Penal Actions. Ex post faeto laws relate only to penal and criminal actions.</p> <p>CONSTITUTIONAL LAW: Ex Post Facto Laws — Appeal in Search 3 Warrant. Sec. 2, Ch. 322, 37th G. A., authorizing an appeal by the State in proceedings for condemnation of liquors, relates only to procedure, and is not ex post faeto as to such proceedings instituted before the act went into effect.</p> <p>INTOXICATING- LIQUORS: Search Warrant Proceedings — Appeal 4 hy State. An appeal by the State from a judgment against it in a proceeding for condemnation of liquors, under Sec. 2, Ch. 322, 37th G. A., was sufficiently perfected where written notice of appeal was stamped as filed by the justice on the day of the judgment, but prior to the entry of the judgment upon the docket, the delivery thereof to the justice being the equivalent of an oral notice of appeal, which .fact is required to be entered on the docket by the justice.</p>

<p>Appeal from Chiclcasaio District Court. — A. N. Hobson, Judge.</p> <p>Suit in equity to set aside and cancel certain deeds and other instruments. The facts are fully stated in the opinion.</p>

— Milo P. Smith, Judge. Appeal from the action of the court in refusing to strike an amendment to the petition. Opinion states the facts. Defendant appeals.

— Thos. J. Guthrie, Judge. Thio Chicago Great Western Railway Company appealed to the district court of Polk County “from the condemnation proceedings, from the award, and from the assessment of damages” of a sheriff’s jury in proceedings instituted by the Des Moines Western Railway Company to condemn a right of way across the tracks and right of way of the Great Western Company at a point in the city of Des Moines.

<p>Appeal from Polk District Court. — -Hubert Utterback, ■ Judge.</p> <p>Action to recover damages for personal injury. Opinion states the facts. Verdict and judgment for plaintiff in the court below. Defendants appeal.</p>

<p>Appeal from Madison District Court. — J. H. Applegate, -Judge.</p> <p>Suit in equity to enjoin defendant city and its officers from interfering with certain improvements constructed by the plaintiff in a public cemetery. The material facts are stated in the opinion. The trial court dismissed the bill, and plaintiff appeals.</p>

— E. G-. Albert, Judge. Action by plaintiff, who claims a landlord’s lien on property, to enjoin the defendant, who holds chattel mortgage thereon, from foreclosing the same.

<p>Appeal from Wright District (Jourt.- — E. M. Wright, Judge.</p> <p>Action for damages under the Federal Employers’ Liability Act. Judgment for plaintiff. Defendant appeals.</p>

<p>PRINCIPAL AND SURETY: Suretyship and Indemnity Contrasted. 1 A bond which provides that it is given for the full performance of a named contract, and makes said contract a part of the bond, and distinctly provides that the surety assumes the obligation of “suretyship only,” imposes an original obligation on the surety to carry out and perform all the terms of the bond equally with the principal, barring only the fact that the surety may be released by some material act of omission or commission ■by the obligee.</p> <p>PRINCIPAL AND SURETY: Liability on Unadjudicated Claims. 2 One who has contracted for the erection of a building on his premises, and has reserved the right to discharge claims and liens which the contractor may allow to be placed upon the property, may, in case such liens are filed, pursue one of two courses:</p> <p>First. He may, in good faith, pay unquestioned claims; or Second. He may allow the claims to be adjudicated against himself, even m the absence of the principal contractor; and Third. He may, in either case, enforce full reimbursement írom a surety.</p> <p>PARTIES: Principals and Sureties. The obligee in a bond may sue 3 the surety therein without joining the principal.</p>

<p>PRINCIPAL AND AGENT: Duties of Agent — Misconduct—Proximate Cause — Insufficient Evidence. Causal connection between the- act alleged and tbe damage suffered must be established.</p>

— Alfred N. Hobson, Judge. Action for divorce on tlie grounds of cruel and inhuman treatment. Decree for the plaintiff in the court below. Defendant appeals.-

— James DbLand, Judge. Matthew Byrne was twice married. He died, leaving him surviving several children of his first marriage, and the wife and two children of his second marriage. By his will he provided a life support of $25 per month for one child of his first marriage, and a legacy of $15 each to the other children of that union.

<p>Appeal from Polk District Court. — Hubert Utterback, Judge.</p> <p>Action upon a policy of life insurance.</p>

<p>INSURANCE: Failure to Apply Excess Assessment. A forfeiture 1 may not .be declared fór nonpayment of an assessment, when the insurer has an unapplied assessment in his possession.</p> <p>INSURANCE: Refusal to Receive Assessment. A forfeiture may 2 not be declared when the insured offers to pay an assessment, and such offer is refused, on the mistaken assumption by the insurer that the insured is in default in the payment of a prior assessment.</p> <p>INSURANCE: Waiver of Prompt Payment. An insured may not 3 claim that the insurer has waived the prompt payment of assessments when his default, if any, occurred immediately after he had been specifically notified that promptness would be insisted on.</p>

<p>APPEAL AND ERROR: Law of Case. A holding, on appeal, that 1 a jury question was presented on the issues of negligence and contributory negligence, is the law of the case on all futurp appeals on substantially the same evidence.</p> <p>WITNESSES: Contradicting Irrelevant Matter. It is not necessa2 rily reversible error for the court to permit the contradiction of immaterial and irrelevant matter voluntarily developed by both parties.</p> <p>NEGLIGENCE: Instructions — Degree of Care, etc. — Instructions as 3 to the degree of care required in the maintenance of a gate to an elevator, and as to the necessity of notice, express or implied, of the defective condition thereof, reviewed, and held to fully protect the. defendant.</p> <p>TRIAL: Excessive Verdict — §8,000. On the issue whether a verdict 4 is legally excessive, some fair consideration must be given to the recognized nation-wide change in economic conditions. Verdict of §8,000 for very serious personal injury held nonexcessive.</p>

— Thos. A. Guthrie, Judge. Action to recover damages for personal injury. Opinion states tlie facts. Verdict and judgment for plaintiff in the court below. Defendant appeals.

Appeal ¡rom Johnson District Court. — R. P. Howell, Judge. Hugi-i R. Owens was killed by driving his automobile into an opening in a public highway caused by the washing out of a bridge. This action is brought by his administrators for damages.

— L. N. Hays, Judge. Action at law to recover damages. Directed verdict and judgment for plaintiff, and defendant appeals. The material facts are stated in the opinion.

— C. H.' Kelley, Judge. Action at law to recover damages for alleged failure of the defendant to perform a certain written option contract for the sale of land. Verdict and judgment for plaintiff. Defendant appeals.

<p>SALES: Termination of Contract Terminates Restriction on Resale. 1 A buyer of property who simply contracts that he will not resell the property outside certain prescribed territory may, without liability for damages, sell where he pleases after the other party to the contract has terminated it, pursuant to a reserved right so to do.</p> <p>CONTRACTS: Operation and Effect of Termination. A legally ter2 minated contract cannot control transactions subsequent to the termination.</p> <p>CONTRACTS: Deposit to Insure Contract. A deposit of money for 3 the purpose of insuring performance of a contract in a specified particular may not, after spell performance, be withheld for another and different purpose.</p> <p>EVIDENCE: Indefinite Non-Trade Terms. A vague, meaningless,</p> <p>4 and non-trade term, employed in a contract, may not be utilized as a framework around which to build a contract by parol.</p>

<p>MASTER AND SERVANT: Workmen’s Compensation Act — Appeals. 1 Procedure for the taking of appeals is governed by Sec. 17, Ch. 270, Acts of the 37th. G. A., even as to injuries occurring prior to July 1, 1917.</p> <p>MASTER AND SERVANT:i Injury “Arising Out of” Employment. 2 An injury to a servant who is, at the time, in the course of his employment "arises out of’ his employment when it reveals some causal connection with the general conditions existing on the master’s premises, even though such conditions do not generally exist in the particular place of work assigned to the servant, and even though, at the precise time of injury, the servant is performing an unnecessary but non-prohibited act personal to himself, i. e., lighting a cigarette.</p> <p>PRINCIPLE APPLIED: A servant was an electrician. He came upon the master’s premises, prepared himself for his work, and approached his work bench. In the act of so doing, he struck a match and. lit a cigarette. Instantly thereafter, a violent explosion occurred. A portion of his left hand was blown away, and the left side of his body at the waist line was burned. Pieces of copper were discovered — presumably in the wound or clothing. An hour later, a dynamite cap was found in the pocket of the clothes which the servant wore at the time, and In the pocket from which he took the match. The servant denied that he consciously took such cap upon the premises. The commissioner did not find to the contrary. Such caps were in use on other parts of the master’s premises, but their presence in the building where the servant in question worked was strictly forbidden. Smoking in the servant’s building was not prohibited. It seems to have been conceded that the servant was injured by the explosion of one of these caps.</p> <p>Held, the injury “arose out of’ the employment, and the lighting of the match did not deprive the servant of the benefits of the Compensation Act.</p> <p>MASTER AND SERVANT: “In the Course of Employment.’’ A 3 workman who, being on the master’s premises, is in the act of approaching his work bench for the purpose of entering upon his daily tasu, is “in the course of his employment.”</p> <p>MASTER AND SERVANT: Findings of Fact on Appeal. The court 4 will not disturb a non-fraudulent finding of fact by the industrial commissioner, but will set aside an order or decree of such commissioner when the facts so found are insufficient to support or warrant such an order or decree.</p>

— L. DeOraee, Judge. Action at law, to recover upon a certificate of accident insurance issued by the defendant association to Ted Thomas Rowe. There was a. verdict and judgment for plaintiff, and defendant appeals.

— Ti-iomas J. Guthrie, Judge. Suit in equity by Riparian proprietors to restrain the defendants from repairing and reconstructing the Center Street dam across the Des Moines River in the city of Des Moines. The Des Moines ice & Cold Storage Company and the state of Iowa intervene. The court dismissed plaintiffs’ petition, and also the petition of intervention of the state. Plaintiffs, the state of Iowa, and the defendant city gave notice of appeal.

— Milo I\ K.mitii, Judge. This is a suit in equity, to establish a claim in favor of plaintiff in the receivership of the Iowa Mercantile Company, an insolvent corporation. There was a judgment upon a counterclaim interposed by the receiver for damages for the alleged breach of certain contracts for merchandise sold to the corporation, and plaintiff appeals.

— Lorix N. Hays, Judge. Action in quo warranto to test the legality of the formation of a consolidated independent school district. Opinion states the facts. The case was decided on demurrer. The district court held the consolidated district legally formed, and dismissed plaintiffs’ petition. Plaintiffs appeal.

— Hubert Utterback, Judge. Action to recover for personal injuries. Opinion states the issues and the facts. Directed verdict for the defendant. Plaintiff appeals.

- — M. F. Edwards, Judge. Motion to dismiss an appeal, on the ground that the appellant did not authorize the appeal. Opinion states the facts. Motion sustained.

<p>NUISANCE: Damages — When Original — When Continuing. When 1 a nuisance is permanent in its construction, _ and fixed, determinable, and permanent damages at once result from the very nature of such construction, the damages are original, — that is, all damages, present and prospective, accrue at once.</p> <p>PRINCIPLE APPLIED*: An electric power company erected a permanent concrete dam across a river, in order to generate power for its plant. In so doing, it ignored the law relative to the assessment of damages by reason of overflow, etc. Later, the company settled with a landowner for the damages to his land, which had been, to some extent, overflowed. Still later, the said owner sold his land, by ordinary warranty deed. Still later, trouble with other landowners having arisen, the company instituted what it ought to have instituted in the first place: to wit, proceedings to have assessed the damages consequent on the construction of the dam. The grantee, heretofore spoken of, was made a party to the proceedings, and interposed a claim for damages. Held, the damages consequent on the construction of the dam were original, and accrued, consequently, to the former owner.</p> <p>PLEADING: Amendment — Ad Quod Damnum Proceedings. On ap2 peal, in ad quod damnum proceedings, from the award of the jury, amendments are allowable, by the party instituting the proceedings, to the effect that the damages had been fully adjusted with a former owner of the land.</p> <p>FRAUDS, STATUTE OF: Real Property, Etc. — Eminent Domain— 3 Agreement to Settle Damages. An agreement to settle damages to la-nd consequent on the construction o,f a dam which overflowed the land, is not within the statute of frauds.</p>

— J. J. Clark, Judge. Action at law. Trial to the court without a jury. The controversy is over conflicting claims growing out of a certain contract for the construction of a drainage ditch. The facts, so far as material, are stated in the opinion. There was a judgment for plaintiff and certain interveners, from which the surety upon the contract appeals.

— R. M. Wright, Judge. Action for damages for personal injuries. Verdict and judgment for plaintiff, and defendant appeals.

— Charles W. Mullan, Judge. This action involves the question of priority of liens upon the property of a tenant and upon the proceeds of a public sale of such property. From the findings of the trial court, the plaintiff alone appealed.

<p>WATERS AND WATERCOURSES: Surface Waters — Nuisances— 1 Remedies — Injunction. If an injury to the plaintiff by a levee built by. the defendant to reclaim land is tangible and definite, the plaintiff is entitled to injunctive relief, even though such relief will defeat the reclamation project of the defendant.</p> <p>WATERS AND WATERCOURSES: Surface Waters — Nuisances— 2 Remedies — Intangible and Indefinite Damages. Where a levee, constructed by defendant, would merely retard the drainage of flood waters from plaintiff’s land, and there had been no increase in the area of plaintiff’s land that would overflow by reason of the levee, and since, if an overflow should occur, crops would, in any event, be destroyed by the submerging, the levee will not be enjoined; and where the evidence shows that any damage by reason of holding the flood waters on plain- • tiff’s land for a longer time than they would otherwise remain would be problematical, and the defendant is presumed to be solvent, and can respond in damages, should any he sustained, and, if an injunction issues, is sure to he deprived of the opportunity of producing crops which the levee saves, the injunction should be denied, and plaintiff left to his remedy of lawr.</p> <p>APPEAL AND ERROR: Reversal — Improvident Injunction — Dis-3missal of Petition with Leave to Renew upon Injury. Where the appellate court finds tliat the granting of an injunction is improvident, and that no such extraordinary relief was due, and that the injunction should have heen denied, because plaintiff has an adequate remedy at law, it may reverse, with direction to dismiss the petition with leave to renew whenever defendant’s levee is causing the plaintiff any actual damages ■ as to water upon his land.</p>

<p>Appeal from Woodbury District- Court. — J. W. Anderson, Judge.</p> <p>This is an action at law in two counts, to recover damages for a breach of contract on the part of defendants, plaintiff alleging that the contract was broken, in that the defendants, in violation of said contract, transferred some real estate of which plaintiff was the owner, without obtaining plaintiff’s consent thereto. The second count is for damages caused by defendants’ transferring certain rent notes, of which plaintiff claims to have been the half owner', without plaintiff’s knowledge or consent. There was a trial to a jury, and a verdict and judgment for plaintiff. Defendants appeal.</p>

— E. P. Howell, Judge. Action for damages consequent on delay in shipping corn by plaintiff from Oxford, Iowa City, and Tiffin to Chicago, Illinois, over the defendant’s line of railway, resulted in the verdict against the defendant and judgment thereon. Both parties appeal, defendant’s appeal being first perfected.

— H. E. Fry, Judge. Action for damages. The petition was in three counts. Two of the counts claimed damages for assault and battery, and the third claimed damages for the conversion of straw. There was a verdict for the plaintiff upon all the counts. A motion for new trial was sustained as to the second count and overruled as to the others. Judgment was entered on the verdict as to the first and third counts. The defendant appeals.

— R. M. Wright, Judge. Suit to determine the shares of the estate of J. M. Col-burn, deceased, to which plaintiffs and defendants are each entitled, resulted in a decree declaring each of the former entitled to one fourth, and each of the latter to one twelfth thereof. The defendants appeal.

<p>DIVORCE: Alimony — Fraudulent Conveyance — Knowledge of Gran- • 1 tee. Where a husband was directed by a divorce decree to convey real estate to his wife, but immediately left the city, and conveyed, for a consideration of $1.00, property worth $1,600, to a resident of another city, who knew of the divorce -decree, fraud * in the conveyance was sufficiently established.</p> <p>COURTS: Jurisdiction — Real Estate. Real property, as a general 2 rule, is subject to the jurisdiction of the courts of the state where it is located.</p> <p>DIVORCE: Judgment or Decree — Jurisdiction—Courts of This State 3 Can Enforce Foreign Judgment. An action can be brought in-the courts of this state to enforce the judgment of the courts of another state in a divorce suit for alimony, costs, and attorney’s fees.</p> <p>COURTS: Jurisdiction — Enforcement of Decree in Divorce Suit 4 A court of equity of the state of Washington, having personal jurisdiction of the parties in a divorce suit, had jurisdiction to grant a decree requiring the defendant to make conveyance of land in this state as alimony. Such a decree operates only in personam, and gives the judgment creditor the right to maintain an action in this state to require the defendant to convey the land here, when, by his fraud, he has put it beyond the power of the Washington court to require him to do so.</p> <p>DIVORCE: Judgment or Decree — Enforcement of Foreign Judgment. 5 Evidence reviewed, in an action to require conveyance of land in Iowa which had been ordered by a Washington court to bo conveyed by a divorce defendant as alimony to his wife, and held that the Iowa court exercised proper discretion in requiring the husband to convey the land to his divorced wife.</p> <p>DIVORCE: Judgment or Decree — Alimony—Final until Modified. 6 A divorce decree as to alimony, although subject to change, under Sec 3180, Code, 1897, is a final judgment until modified.</p> <p>EVIDENCE: Presumptions — Statutes of Sister State. In the ah 7 sence of a showing to the contrary, it will be presumed that the statutes of the state of Washington as to changing a divorce decree are the same as in this state.</p> <p>JUDGMENT: Jurisdiction — Time of Taking Effect. Ordinarily, a 8 decree, if held for a few days or longer, will, when entered, relate back to the date of the decision, where the rights of no innocent third persons intervene.</p> <p>COURTS: Jurisdiction — Enforcement of Foreign Judgment for Ali-i) mony. Where a court of the state of Washington enjoined a divorce defendant from transferring any of his property, and thereafter rendered a decree requiring him to convey to his divorced wife real estate in Boone, Iowa, which was not specifically described, and the property was conveyed- to one in this state who knew that the husband had been so directed to convey, the wife could, in an action in this state against the husband and said grantee, compel the conveyance of said property to her.</p> <p>DIVORCE: Alimony — Setting Aside Fraudulent Transfer. A fraud-10 ulent transfer of property made by a husband to defeat bis wife’s claim for alimony will be set aside.</p>

— William Hutchinson, Judge. The defendant was convicted of the crime of having maliciously threatened one Bahnson, with intent to compel him to purchase certain dray line property against his will. He appeals.

— Franklin C. Platt, Judge. Action in equity to determine whether plaintiff should bear the expense of installing and maintaining the crossing of its tracks across one of defendant’s side or additional tracks, or whether such expense should be borne by the defendant company.

<p>CONTRACTS: Parties, Proposals, and Acceptances — Compliance with Advertisement. Where an advertisement, signed by an advertiser, offering a free trip to the Panama Exposition, was complied with by a reader, and his part of the agreement was fulfilled, a contract was established which was binding upon the advertiser, and upon which an action for its breach could be predicated.</p>

<p>Appeal from Hardin District Court. — B. M. Wright, Judge.</p> <p>Appellants complain because tlie trial court overruled objections made by them to the report of the executor and the executrix.</p>

Action for damages by an employee against his employer for personal injuries sustained in the course of his. employment. At the close of the evidence, there was a directed verdict for the defendant. The plaintiff appeals.—

— H. B. Boies, Judge. Appeal from a judgment in certiorari proceedings. This case was originally tried before the arbitration committee, which found for appellee Norma Wright. Thereafter, the cause was reviewed by the district court, upon application of plaintiffs, appellants, which court confirmed said finding. The plaintiffs appeal.

<p>ACKNOWLEDGMENT: Certificate of Acknowledgment — Presump - 1 tion. The certificate of a notary public to the acknowledgment of the execution of a deed is not only presumptively true, but the presumption in its favor is a strong one, and nothing but clear and convincing evidence will suffice to contradict it.</p> <p>DEEDS: Validity — Forgery—Insufficiency of Evidence. Evidence 2 reviewed, in a partition suit where it was claimed that the plaintiff’s deed was a forgery, and held insufficient to sustain the charge of forgery.</p>

<p>Appeal from Webster District Court. — E. M. Wright, Judge.</p> <p>Action for an accounting upon the rescission of a contract. The trial court entered judgment for a balance in favor of plaintiff. The defendant appeals.</p>

— J. H. Applegate, Judge. Action in equity, to enjoin the board of supervisors and the auditor from opening a highway through plaintiff’s farm, without paying him compensation for .the land taken therefor. The facts are more fully stated in the opinion. The trial court found against the plaintiff, and he appeals.

— W. W. Cardell, Judge. Appeal by an attachment plaintiff from an order of the trial court fixing the amount of liability of a garnishee as a supposed debtor of the attachment defendant.

— M. F. Edwards, Judge. Action to recover damages from tlie defendant railroad company, and one of its engineers, in negligently, as is alleged, striking plaintiff, as he attempted to cross the railroad track in an automobile. There ivas a trial to a jury, and a verdict for plaintiff for $2,500, and the defendants appeal.

<p>Appeal from• Woodlury District Court. — J. W. Anderson, Judge.</p> <p>The statement of the case appears in the body of the opinion.</p>

— M. F. Edwards, Judge. The appellee purchased an automobile of the appellants. He gave his notes for the purchase price. A contract was signed, which gave a lien on the automobile for the purchase price. Later, he executed a deed to the appellants. He replevined the notes.

— James W. Willett, Judge. Tiie action was tried in equity. The controversy arose over a claim filed by appellant against the assignee, and the -estate of the 1). E. Baker Lumber Company. Objections were filed by the assignee and certain creditors and stockholders of the lumber company. The claim was disallowed by the trial court, and claimant, plaintiff, appeals.

— H. E. Fry, Judge. In the district court, this was an appeal from certain drainage assessments made by the board of supervisors. Five appeals were consolidated and tried together, and are involved herein. Upon trial in the district court, partial relief was granted to the complainants. The board of supervisors, on behalf of the district, appeal.

— H. B. Boies, Judge. Action by a subcontractor, for materials furnished, upon the bond given by the principal contractor to the property owner. A demurrer to the petition was sustained. The plaintiff, electing to stand upon its pleading, has appealed.

— A. P. Barker, Judge. Action for damages for alleged diversion of water up-' on the lands of the plaintiff. Some features of the controversy were before us in Chicago, R. 1. d P. R. Co.'v. Lynch, 163 Iowa 283. The case was tried to a jury, and a verdict rendered for the defendant. The plaintiff appeals.

• — M. E. Hutchison, Judge. Plaintiff charges defendant was negligent in the maintenance of a bridge, and that thereby her intestate came to his death. She has verdict and judgment, and defendant appeals.

— P. M. Wrtgiit, Judge. Plaintiff claims defendant is liable to her for failing to deliver, by a stated time, money transmitted by it for her by telegraph. She has verdict and judgment, and defendant appeals.

— Lawrence DeGraff, Judge. Suit in equity to cancel certain amendments to the articles of incorporation adopted by the membership of the defendant company. Upon trial had, the district court dismissed the petition. The plaintiff appeals.

<p>APPEAL AND ERROR: Decisions Reviewable — Order Overruling 1 Motion to Dismiss Bill in Equity — Failure to Renew. Failure to renew, at the close ol all evidence, a former motion to dismiss bill in equity, for lack of proof, works a waiver of the latter ruling, but not a waiver of the right to insist, in the Supreme Court on appeal, that the evidence is insufficient to sustain the decree.</p> <p>INSURANCE: Accident Insurance — ‘‘Injury Intentionally Inflicted’ ’ 2 Defined. The words "intentionally inflicted injury,” in an accident insurance policy, construed to mean “an injury specifically intended to cause the injury done;” and held that, under accident policy having such a provision, recovery could be had for the death of the insured, caused by being struck by a brick thrown by another person with intent to injure, but with no intent to kill insured.</p> <p>INSURANCE: Accident Insurance — Presumption—Death from Ex-3 ternal, Visible Injury. .Where death is shown to have resulted from an external, visible injury, the presumption obtains that it was accidental, and not intentionally inflicted, either by the insured or by another person.</p> <p>INSURANCE: Accident Insurance — “In Any Degree’’ under the 4 Influence of Intoxicating Liquors. Under a provision in an accident insurance policy that there would be no liability for an accident while insured was "in any degree under the influence of intoxicating liquors,” it is not a defense to show that insured had been drinking to considerable extent, or that he was in some degree under the influence of intoxicating liquors, but it must be shown that he was intoxicated in a substantial degree.</p> <p>INSURANCE: Accident Insurance — Affirmative Defenses — Burden on 5 Insurer. The burden of proving affirmative defenses in the nature of an exception, relieving insurer from liability, is on the insurer.</p> <p>INSURANCE: Accident Insurance — Contracts—Construction Most 6 Favorable to Insured. A stipulátion or exception to a policy of insurance emanating from the insurer is, when capable of two meanings, to be construed in favor of the insured, and the terms of such an exception are to be construed most strongly against the insurer.</p> <p>TRIAL: Reception of Evidence — Continuance. Where a case of sur7 prise was made out, by reason of the fact that defendant’s witnesses from Florida testified differently than they had testified at an inquest in that state, plaintiff was properly granted a continuance, so that she could take depositions contradicting their' testimony.</p> <p>APPEAL AND ERROR: Trial — Continuance—Harmless Error. Ordi8 narily, no substantial prejudice could result from granting a continuance; but if it did, it would be iuie to reverse on the ground of error in granting the continuance, as a remand would have to be granted in an appeal on the equity side, and evidence obtained during the appeal could' be used on the new trial; and a reversal will not be ordered, simply to inflict costs.</p> <p>APPEAL AND ERROR: Trial — Continuance and Reopening of Case Í) Discretionary with Court. The granting of a continuance and of a motion to reopen a case, and allowing the introduction of additional evidence, is largely discretionary, and will not, ordinarily, be interfered with on appeal.</p>

— Thomas Arthur, Judge. Ti-ie plaintiff alleges that defendant represented certain swine claimed by plaintiff to have been bought of defendant were free from all infection, and had been duly immunized, and warranted that this was so; and that, in reliance, he bought and paid for said animals. He alleges that this warranty was breached, to his damage. Be has verdict and judgment, and defendant appeals.

— R. M. Wright, Judge. Suit in equity whereby the plaintiff, as a creditor, seeks to establish his claim as a lien upon the alleged homestead of the debtor defendant, on the ground that the claims of the plaintiff accrued, prior to the acquisition of the homestead. There was a decree dismissing the petition, and the plaintiff has appealed.

— James D. Smyti-i, Judge. Action at law to recover damages for an alleged breach of contract. Trial to a jury, and at the close of plaintiff’s evidence, the trial court directed a verdict for defendant E. E. Holliday on the ground that he had not obligated himself in the written contract to pay for the property, and that plaintiff made no claim in the petition against him. We do not understand appellant to complain of this ruling.

— George Jepson, Judge. Action iu equity, to restrain defendants from using a bequest of $2,000 made by one S. B. Starr, deceased, and asking that the bequest be decreed to be a conditional bequest, and asking that plaintiffs, as heirs of said S. B. Starr, be decreed to be the owners thereof, and for judgment and general equitable relief. The defendants’ demurrer to the petition was sustained, and the plaintiffs appeal. The facts are more fully stated in the opinion.

— George Jepson, Judge. Action in equity to enjoin a nuisance alleged to have been maintained by defendants other than Merkin, in maintaining in the building in question a place used for purposes of lewdness, assignation, and prostitution, and asking that a $300 tax be imposed upon the real property.

<p>Appeal from, Polk District Court. — Lawrence DeG-raff, Judge.</p> <p>Action for damages by an administratrix for the wrongful death of her intestate, who was accidentally killed in the course of his employment as an employee of the defendant. There ivas a verdict for the plaintiff, and the defendant appeals.</p>

<p>Appeal from Polk District Court. — Hubert Utterback, Judge.</p> <p>Action for damages for. surgical malpractice. At the close of plaintiff’s evidence, there was a directed verdict for the defendant. The plaintiff appeals.</p>

— C. N. Houck, Judge. Three suits were brought on four promissory notes, secured by mortgage on the maker’s land, and judgment and decree of foreclosure prayed. These suits were consolidated, and, on hearing, decree entered as prayed. The defendants Rudolph Ott and Alwine Ott appeal.

— Lorin N. Hays, Judge. An injunction was awarded, restraining the defendants from closing up an alleged public highway, and defendants appeal.

<p>Appeal from Clinton District Goiort. — Wm. Ti-ieopi-iilus, , Judge.</p> <p>Action to recover damages. Appeal by plaintiff from a directed verdict for defendant.</p>

<p>Appeal from Hamilton District Coiwt. — R. M. Wright, Judge.</p> <p>The opinion states the case.</p>

— O. B. Robbins, Judge. Action to recover the value of certain goods. Opinion states the facts. Verdict for the defendant in the court below. Plaintiff appeals.

— J. B. Rockafellow, Judge. Action against a copartnership on ñve promissory notes, three for $105 and two for $100 each. At the close of the evidence, both parties moved for a directed verdict, whereupon the jury was dismissed, and the cause, by agreement, submitted to the court. Plaintiff was awarded judgment as prayed, and defendant appeals.

— 'Shelby Oullison, Judge. Action to recover liquidated damages. It appears that the plaintiff and the defendant entered into a written contract, by the terms of which plaintiff purchased from the defendant certain property used in and about his blacksmith shop, and the good will of his business, for a consideration to be determined by the parties by methods provided for in the contract.

— J. B. Rockafellow, Judge. Action for damages. The facts are fully stated in the opinion. There was a verdict below, by direction of the court, for defendant. Plaintiff appeals.

— William Hutchinson, Judge. Appeal from the assessment of tbe value of shares of stock issued by a national bank resulted in confirmation thereof. The bank appeals.

<p>USURY: Application of Payments — Discharge of Principal. All 1 sums paid as usury will be applied to the discharge of the principal.</p> <p>MORTGAGES: Rights and. Liabilities of Parties — Sale of Mort-2 gaged Property — Accounting. A lender, sustaining- the relation of a mortgagee to a borrower, having sold the mortgaged property, will be held to account for the value thereof as a mortgagee in possession. '</p> <p>ACCOUNT, ACTION ON: Evidence — -Laches. Evidence reviewed, 3 in a suit for accounting by a borrower against a lender, who had taken property as security on a debt, and held insufficient to charge the borrower with laches in delaying the bringing of the suit.</p>

— M. F. Edwards, Judge. Action to recover the purchase price of certain machinery which plaintiff claims to have sold and delivered to the defendant. There was a trial to the court, resulting in a dismissal of plaintiff’s petition, and judgment against it for costs. Plaintiff appeals.

<p>Appeal from Shelby District Gowrt. — E. B. Woodruff, Judge.</p> <p>Appeal from award of damages made in a proceeding to appropriate certain lands of the plaintiff for school purposes. The district court dismissed the appeal, on the ground that it was not taken in time, and the action of the district court was by appeal brought to this court. Reversed and remanded, with instructions to proceed in accordance with this opinion.</p>

<p>Appeal from Mahaska District Court.- — Henry Silwold, Judge.</p> <p>Appeal from an order of the court below reversing the finding and order of the industrial commissioner, reviewing a decision and award of arbitrators.</p>

<p>Appeal from Clot/ District Court. — D. F. Coyle, Judge.</p> <p>This controversy involves a contest of the will of L. 0. Burgin, deceased. Judgment was entered upon the verdict of the jury, finding that the testator was of unsound mind at the time the will was executed. Proponent appeals.</p>

<p>Appeal from Lmn Distriot Gowt. — W. N. Treichjder, Judge.</p> <p>The plaintiff church filed a claim against the estate oí John B. Leigh, to recover the amount of a fund alleged to have been held in trust for its benefit by the said Leigh in his lifetime. The trial court found for the plaintiff, and the defendant appeals. The material facts are stated in the opinion.</p>

<p>WILLS: Construction — Bequests—Trusts—“Use and Benefit.” A devise to a trustee, “to he received and held in trust by her for the use and bemefit of my child until such child becomes of age and at that time said property shall go to and become vested in him. If said child shall not live until he reacn the age of 21 and leave no children then share given to vest in trustee as her own," did not give said child during his minority the right to the rents and profits derived from the trust; and the words “use and benefit” are descriptive of the character of the trustee’s holding, and do not enlarge the rights of the fhinor in or to the property.</p>

<p>Appeal from Crawford District Court. — E. G. Albert, Judge.</p> <p>Action to recover damages alleged to have been caused by the falling of the plaintiff’s bull into an open ditch, left by the defendants on its streets, unguarded. Verdict and judgment for the plaintiff. Defendants appeal.</p> <p>Affirmed.</p>

<p>SALES: Conditional Sales — Chattel Mortgage — Title Not Passing 1 until Price Paid. A contract specifically providing that title shall not pass until the full amount of the purchase has been paid, is a conditional sale contract, and not a chattel mortgage, there being nothing in the facts and circumstances surrounding the transaction to indicate a different intention.</p> <p>SALES: Conditional Sales — Lien and Priority — Description of Prop-2 erty — Sufficiency to Impart Notice. Although a description of property in a recorded conditional sale contract, standing alone, might not be sufficient for constructive notice, yet it will give constructive notice to third parties where, taking the contract as a whole, it is ' sufficiently definite to suggest such inquiry as wouiu enable a person examining the record to locate and identify the property.</p> <p>SALES: Conditional Sales — Recording Acts — In County Where Prop-3 erty Delivered and Purchaser Shortly after Resides. A conditional sale contract, hied in the county where the property was delivered, and where purchaser shortly after moves with his family, with the purpose of claiming it as his residence, was recorded in the right county. Section 2906, Code, 1897.</p> <p>SALES: Conditional Sales. Where a conditional sale contract of 4 property provided that 40 per cent of the money earned with said property by the purchaser should be applied on the purchase price, a subsequent mortgagee could not contend that the amount due was automatically reduced hy 40 per cent of the amount earned, where the parties to the sale contract made no such application.</p>

<p>APPEAL AND ERROR: Decisions Reviewable — Writ of Error. An 1 appeal from the ruling of a superior court on a writ of error from a justice court brings up for review in the Supreme Court no questions' of fact.</p> <p>MASTER AND SERVANT: Workmen’s Compensation Act — Insur2 anee — Liability of Insurer. The only liability of an insurer under the Workmen’s Compensation Act, Secs. 2477-m41, 2477-m47, Code Supp., 1913, is that there shall be assured the payment of compensation “under this act,” and that the insurer shall he bound by every agreement, award, or judgment rendered against the insured.</p> <p>MASTER AND SERVANT: Workmen’s Compensation Act — Attor3 ney’s Lien — Employer’s Liability. Tbe Workmen’s Compensa- . lion Act does not create or impose upon tbe employer any liability to tbe attorney of his employee, and to have a lien against such employer, under Sec. 321, Code, 1897, the amount of the same must be approved in writing by a judge of a court of record, or by the Iowa industrial commissioner; and where the claim of the injured employee was settled without suit, and, at the time of the payment therefor, the attorney had not acquired any lien, he could not thereafter acquire one.</p> <p>MASTER AND SERVANT: Workmen’s Compensation Act — Attor4 ney’s Lien — Notice to Insurer. No notice having been given to the insurer of an employer of an attorney’s lien, under Sec. 321, Code, 1897, providing that the lien should date only from the time of giving notice in writing to the adverse party, there was no notice to the insurer by the giving of such a notice to the employer; and the provision of Sec. 2477-m47, Code Supp., 1913, by which the insurer is bound by the knowledge and notice possessed by the employer, and jurisdiction of the employer is jurisdiction of the insurer, does not apply, as it is limited to the binding effect upon the insurer of the liability established against the employer in favor of the employee under the Compensation Act; and the judgment obtained by the attorney for his services was not a judgment or award in favor of the employee, and therefore did not relate to any liability imposed by the Compensation Act.</p>

<p>CORPORATIONS: Liability for Corporate Debts — Unpaid Stock 1 Subscription. A subscriber to corporate stock, induced to become such by fraud, is not liable for his unpaid subscription to a receiver of the company, after its insolvency, except as to claims in the receiver’s hands, to be satisfied out of the corporate assets that accrued after the subscriber had obligated himself as a stockholder.</p> <p>CORPORATIONS: Liability for Corporate Debts — ¡Claims Accruing 2 after Stock Subscription — Presumptions. It is not to be presumed that there are claims in the hands of the receiver of an insolvent.corporation that accrued after a subscriber to its corporate stock obligated himself as a stockholder, from the mere general statement or proof that the corporation was insolvent when the receiver was appointed.</p> <p>APPEAL AND ERROR: Reservation of Grounds — Belated Objections. 3 An objection of alleged laches of the defendant, in failing to discover fraud and demand rescission before he was sued on a contract, raised for the first time in the Supreme Court, cannot be considered as affecting the merits of defendant’s appeal.</p>

— J. B. Rockafellow, Judge. Action for damages consequent on breach of contract. Defendant tendered the return of money paid in excess of the price of the corn taken. Jury was waived, and recovery for damages was denied, and judgment entered for the amount tendered. The plaintiff appeals.

<p>Appeal from Polk District Court. — 'Lawrence DeGrafe, Judge.</p> <p>Action in equity to subject certain land to tbe payment of a judgment. Decree dismissing plaintiff’s petition. Plaintiff appeals.</p>

— John T. Moffit, Judge. Action on a promissory note. Defendant admits tlie execution and delivery of tlie note, and pleads: (1) That the note was obtained by fraudulent representation; (2) that the note was not to become operative as a binding contract until after defendant had an opportunity to investigate the truth of the representations made, and whether or not the matters for which the note was given would constitute a good investment.

<p>APPEAL AND ERROR: Reservation of Grounds — Vague and Indefi1 nite Objections. Objections to a verdict that it was contrary to and in violation of the law as given to the jury, and that the court erred in admitting evidence over objections, and erred in sustaining objections to evidence, and that the court erred in so writing and reading his instructions to the jury as to confuse them, and to render it impossible for them to understand the law of the case, and.unable to apply it to the facts, and that the court erred in each and every paragraph of its instructions to the jury, are of such vague and indefinite character that an exception to the ruling thereon raised no question for the consideration of the Supreme Court.</p> <p>APPEAL AND ERROR: Review — Scope and Extent in General — Ap2 peal from. Ruling on Motion for New Trial. Where an appeal is not taken from the judgment, but from the ruling on a motion for a new trial, it does not bring up for review in the Supreme Court any alleged error occurring in the trial, except as the-ruling complained of has been carried along in the motion as a ground for setting aside the verdict.</p> <p>APPEAL AND ERROR: Review — Scope and Extent in General— 3 Credibility and Weight of Testimony. Upon an appeal in an ordinary action, it is not within the province of the Supreme Court to pass upon the credibility of the witnesses or upon the weight of their testimony.</p> <p>EVIDENCE: Opinion Evidence — Nonexpert Witness. As a general 4 rule, to entitle the opinion of a nonexpert witness that the testator was of unsound mind to any consideration, the witness must disclose the facts upon which his opinion is based; and where the facts so disclosed are not such as to reasonably support the conclusion of unsoundness, his opinion is without value, and has no tendency to rebut the usual presumption of sanity.</p> <p>WILLS: Testamentary Capacity — Evidence. Evidence reviewed, In 5 a contest of a will on the ground of the testator’s mental incapacity, and held sufficient to sustain a verdict setting aside the will.</p> <p>WILLS: Probate, Establishment, and Annulment — Duty of Executor 6 —Assessment of Costs. It is the duty of the executor of a will to file it for probate, and to make all reasonable efforts to sustain its validity; and it must be assumed that the defense of a will was made in good faith, and the proponent should not be penalized by the assessment of the costs.</p> <p>WILLS: Probate, Establishment, and Annulment — Costs—Discretion 7 of Court. The trial court has a certain discretion in determining whether costs were properly incurred by the proponent in the contest of a will.</p>

<p>Appeal from Mills District Gourt. — Thomas Arthur, Judge.</p> <p>Action in equity to rescind and cancel contract for sale of land. There was a decree for plaintiff, as prayed, and defendants appeal.</p>

<p>Appeal from Cass District Court. — J. B. Rockafellow, Judge.</p> <p>Suit in equity to rescind a written contract for an exchange of real estate. There was-a cross-petition by defendant, praying specific performance of the contract. A trial resulted in the dismissal of the cross-petition, and a decree for plaintiff as prayed. Defendant appeals.</p>

<p>CORPORATIONS: Liability for Corporate Debts — Claims Against 1 Officers for Exceeding Statutory Indebtedness. .The fact that claims of creditors had been filed with the receiver of an insolvent corporation would not prevent the bringing of an action by stockholders, pending receivership, against the directors and officers, for the existing indebtedness of the corporation, on the ground of their wrongful conduct in incurring an indebtedness in excess of that allowed by the articles of incorporation and the laws of the state.</p> <p>RECEIVERS: Powers and Duties — Position in Litigation. A reeeiv2 er of an insolvent corporation is an officer of the court, required to handle the same under the direction of the court, and is not a necessary party to a suit between stockholders and creditors of the corporation, as against its officers and directors, for claims against ■ said officers and directors on excess indebtedness, and he cannot raise -any question as to the propriety of litigating such issues or complain thereof.</p> <p>CORPORATION'S: Liability for Corporate Debts — Failure to Comply 3 with Statutory Requirements. Sec. 1611, Code, 1897, provides that articles of incorporation must fix the highest amount of indebtedness or liability to which the corporation is at any one time to be subject, and Sec. 1613, Code Supp., 1913, requires the publishing of the amount of capital stock authorized, and also the highest amount of indebtedness to which the corporation may subject itself; and where the only definite limitation on the indebtedness to be found in the articles was grossly in excess of what the indebtedness of the corporation might be, there was a violation of the said sections, and, under Sec. 1616, Code, 1897, making the individual property of the stockholders liable for the corporate debts upon the failure to substantially comply with the statutory requirements, the stockholders of said corporation were individually liable.</p> <p>CORPORATIONS: Officers and Agents — Eligibility of Director not 4 Dependent on Being Stockholder. There is no statutory requirement that an officer or director of a corporation shall be a stockholder, and, unless the articles of the corporation or the by-laws so provide, it is not necessary that he be such.</p> <p>CORPORATIONS: Officers and Agents — Statutory Liability — Ab-5 sence of Design to Deceive. Where there was no design on the part of directors of a corporation to deceive or defraud anjmne, they are not liable to creditors under Sec. 1620, Code, 1897, which provides that intentional fraud in failing to comply substantially with the articles of incorporation, or in deceiving the public or individuals in relation to their means or liabilities, shall be a misdemeanor, and that anyone guilty thereof shall be liable to a person damaged therefrom.</p> <p>CORPORATIONS: Officers and Agents — Statutory Liability — Diver-6 sion of Funds. There was no diversion of funds, under Sec. 1621, Code, 1897, providing for liability for wrongful diversion by the payment of dividends, where the profits of the corporation were sufficient up to that time to permit such a payment.</p> <p>CORPORATIONS: Officers and Agents — Indebtedness Exceeding 7 Statutory Allowance — Actual Knowledge Necessary. The provision of Sec. 1622, Code, 1897, that the directors and officers of a corporation “knowingly consenting” to the incurring of indebtedness in excess of the amount permitted by law shall be liable to its creditors for such excess, means, with knowledge that the indebtedness exceeds two thirds of the corporate stock. Actual knowledge is required, and it cannot be inferred from mere inattention or neglect on the part of the officers; and it is not enough that it might have been obtained by the exercise of due care.</p> <p>CORPORATIONS: Officers and Agents — Indebtedness Exceeding 8 Statutory Allowance — Renewal of Valid Obligation Not Violation. Renewal of a past existing indebtedness is not a violation of Sec. 1622, Code, 1897, providing against the incurring of indebtedness in an amount exceeding that permitted by law, where the indebtedness was valid at the time at which it was incurred.</p> <p>CORPORATIONS: Officers and Agents — Statutory Liability — Negli9 gence. The neglect of the officers and directors of a company in not instructing its manager not to incur further indebtedness, after knowing that the capital had been wiped out and debts created, there being no intentional fraud, did not make them individually liable to creditors.</p> <p>CORPORATIONS: Liability for Corporate Debts — Stockholders Sev10 erally Liable. On a failure of a corporation to comply with Sec. 1611, Code, 1897, requiring that the articles must fix the highest amount of indebtedness to which the corporation may at any one time be subjected, each of the stockholders is liable for all of the debts of the corporation, and no one of them can complain of a judgment against him for his proportionate share of the indebtedness, instead of a judgment of the entire ' indebtedness against all of the stockholders.</p>

<p>DRAINS: Establishment — Objections of Landowner. In a drainage 1 district where already three fourths of the work of dredging has been done at a large expense, and arrest of its operation a mile above the outlet would deprive the district of drainage, for which it has paid, and voluntarily assumed the burden, relief will be granted to a landowner, asking that its progress be stopped, only upon a clear and satisfactory showing of his right to demand it.</p> <p>DRAIN'S: Establishment — Appeal—Scope of Inquiry. Principle rec-2 ognized that the Supreme Court will consider no objections to ■ the order of the board of supervisors in establishing a public drainage improvement, except such as were raised before the board.</p> <p>EMINENT DOMAIN: Proceedings to Take — Additional Right of 3 Way for Drainage Ditch — Notice. A landowner notified as to the taking of land for additional right of way for drainage district cannot complain that other persons whose lands were also taken were not properly notified.</p> <p>DRAINS: Right of Way — Enlargement—Slight Change in Location— 4 Not New Improvement. A slight change in the location of a ditch and enlargement of ditch right of way, wholly upon land of a single owner, who consented thereto and waived any claim for damages, does not constitute a new and independent enterprise.</p> <p>DRAINS: Change in Outlet — Remoteness of Prospective Litigation. 5 Possibilities that change ip place of outlet of drainage district might give rise to expensive litigation and claims of owners out of the district, there being nothing in the record indicating that damage would result to the property of any person that would not result under the original plan, are too remote to affect the validity of the action of the board of supervisors in making the change.</p> <p>DRAINS: Modification, in Plan — Eliminating Bends in Stream. A 6 modified plan of a drainage ditch, providing for cutting off the bends in the river, instead of emptying into stream at top of bend, and for securing increased fall and efficiency by conducting the current of the stream across the neck of land, held to be a mere incident of the drainage system, and not to invalidate the action of the board of supervisors.</p> <p>DRAINS: Objections to Establishment — Greater Cost than Original 7 Estimates. That changes were made by the board of supervisors, there being no showing that cost of drainage district would be increased thereby, and that expense on the ditch, when only partially completed, exceeds the entire original estimated cost, constitute no reason for denying power of board to complete the improvement.</p> <p>APPEAR AND ERROR: Decisions Reviewable — Pointing Out Pro-8 vision Violated. To entitle one to a review in the Supreme Court of the question of the constitutionality of a statute or of proceedings, the objections must point out the section .or the provisions of the Constitution which it is claimed have been violated.</p>

<p>COMMERCE: Interstate — Employee Not Engaged, in — Workmen’s Compensation Act. A freight conductor on a railway, employed on a line entirely within the state, who had placed a car engaged in interstate commerce out of his train upon a transfer track, and then had taken his train to the railway yards, where it was placed on the siding, and the caboose and motor were uncoupled and taken to the yard office, where he boarded the caboose, and who was thereafter killed by falling from the platform of the caboose, while taking it and the motor to the barns, held not to have been engaged in interstate commerce at the time of his injury, and to have been within the scope of the Iowa Workmen’s Compensation Act. (Sec. 2477-m et seq., Code Supp., 1913.)</p>

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

— O. EL Kelle.y, Judge. Defendant was indicted on the charge of obtaining money by false pretenses, entered a plea of not guilty, was convicted, and appeals.

— E. M. McCall, Judge. Appeal from a decree of the court granting a divorce, based upon the grounds of cruel and inhuman treatment. Decree granted plaintiff as prayed. Defendant appeals.

<p>Appeal from Allamakee District Cowt. — W. J. Springer, Judge.</p> <p>Action at law to recover damages alleged to have been sustained by the plaintiff by reason of the defendant’s negligence in transporting and delivering a shipment of horses from Postville, Iowa, to the Union Stockyards at Chicago, Illinois. Verdict and judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Crawforcl District Cowrt. — M. E. Hutchison. Judge.</p> <p>Action in partition. Mrs. Jacobs, one of the defendants, and also intervener, claims to be the absolute owner of the property sought to be partitioned, under the Rule in Shelley’s Case. The opinion states the facts. The application of the Rule in Shelley’s Case was denied to Mrs. Jacobs. She appeals.</p>

<p>WILLS: Construction — Bequests. Under a will bequeathing the 1 entire estate to testator’s two sons, and providing for the payment by the two sons of the mortgage and; for repairs on homestead owned by testator’s wife, and for good and reasonable support as long as she remained his widow, such charges were the equivalent of a bequest to her, and sums and expenses paid by one of the sons for his mother’s care, support, nursing, and necessities, were a payment of the indebtedness which he impliedly assumed by the acceptance of said devise in his favor, and created no indebtedness on her part.</p> <p>GIFTS: Evidence. Evidence reviewed, and held insufficient to 2 show that a mother had made a gift of property to her son.</p> <p>TRUSTS: Establishment — Evidence. Evidence reviewed, and held 3 insufficient to show that property received by a son from his mother was for a consideration, or that the same was received by him without fraud or undue influence on his part.</p> <p>DEEDS: Validity — Want of Valuable Consideration. 'Mere want of 4 valuable consideration is insufficient to set aside deed to son from his mother, in action brought by her heirs after her death.</p> <p>DEEDS: Validity — Presumptions — 'Evidence — Burden of Proof. 5Where the grantee in deeds from his mother was her only Iiving child, and her sole agent and confidential adviser, and one one to whom she looked for help and direction, she being advanced in years, physically disabled, and her mental powers , being weakened, a presumption of fraud or undue influence arose, and the burden rested upon him to show his good faith in taking conveyances from her.</p> <p>WITNESSES: Competency — Transaction with Deceased. A son was 6 incompetent to testify under the statute as to transactions had by him with his deceased mother.</p> <p>DEEDS: Validity — Undue Influence — Evidence. Evidence reviewed, 7 and held to confirm and strengthen the presumption that conveyances to a son by his mother were the result of undue influence on his part.</p>

<p>Appeal from Taylor District Court. — Thos. L. Maxwell, Judge.</p> <p>Action in equity to establish plaintiff’s alleged title to a fractional interest in certain land, and for partition thereof. Decree substantially as prayed, and certain of the defendants appeal. The opinion states the material facts.</p>

<p>PARTNERSHIP: Authority of Partner — Borrowing Money for Use 1 of Partnership. A member of a partnership has a right to borrow money for. the use and benefit of the partnership.</p> <p>PARTNERSHIP: Mutual Rights, Etc. — Ownership of Contract. 2 Where a partnership had a dealer’s contract with a motor car company, and two of the partners advanced money for the purchase of stock in said company, and for a demonstrator, and the articles of partnership provided that, upon a partner’s paying his pro rata share of the cost, he might acquire an interest in said stock issued to the other two partners, which was later reissued to the partnership, the contract belonged to the partnership.</p> <p>USURY: Contracts — Terms at Time of Execution. A contract is 3 not usurious unless it is made so by its terms at the time of execution.</p> <p>EVIDENCE: Burden of Proof — Proving Usury. The burden of 4 proving usury rests upon the one alleging it.</p> <p>CONTRACTS: Legality of Object and Consideration — Share of 5 Profits in Lieu of Interest. A contract between a lender and a ■borrower for a share of profits in lieu of interest, if bona fide, is not illegal.</p> <p>PARTNERSHIP: Settlement and Accounting — Sale of Partnership 6 Property. Evidence reviewed, and held insufficient to show that part of the partnership property had been disposed of at a discount, without the knowledge or authority of the other partners.</p>

— H. B. Boies, Judge. Supplemental Opinion on Rehearing July 10, 1919. Suit in equity to quiet title, and for damages to real estate. Decree and judgment in favor of plaintiff. Defendant appeals.

<p>- Appeal from Pocahontas District Gourt. — D. F. Coyle, Judge.</p> <p>Action in. equity for the cancellation of assessments levied upon the lands of the plaintiffs for the alleged expense or cost of maintenance, cleaning, and repairing of certain drainage ditches. On trial, the district court dismissed the bill, and plaintiffs appeal.</p>

<p>Appeal from Wapello District Court. — Seneca Cornell, Judge.</p> <p>The necessary fads are slated in tlie opinion.- -</p>

<p>Appeal from Sac District Court. — M. E. Hutchison, Judge.</p> <p>Action in equity to establish and quiet plaintiff’s claim of title to a half interest in 160 acres of land. The defendants deny plaintiff’s claim to the ownership of any part or interest in the property. Trial to the court, petition dismissed, and plaintiff appeals.</p>

<p>Appeal from Dallas District Court. — -Lorin N. Hays, Judge.</p> <p>■Suit in equity to set aside an execution sale of land, and for Other relief. Bill dismissed, and plaintiff appeals.</p>

— J. B. Rockafellow, Judge. Action at law to recover the possession of personal property. The court having sustained a demurrer to defendant’s answer, she elected to stand on her pleading, and from the judgment entered against her, she appeals.-

<p>Appeal from Linn District Cowrt. — F. O.' Ellison, Judge.</p> <p>The opinion states the case.</p>

— O. D. Wheeler, Judge. The county treasurer and county auditor of Pottawattamie county having entered a tax against the Koochiching Company and its stockholders on the alleged taxable value of the shares of stock in said corporation, the company appealed therefrom to the district court, which found for the company, and set aside the assessment.

— J. J. Clark, Judge. Action in equity, to foreclose a contract for , the sale of land. The defendants alleged that the contract was procured by fraud and false representations as to the character, quality, and value of the land, for which reason they ask that they have affirmative relief for. the rescission of the agreement, and for an assessment .of damages in their favor.

<p>Appeal from Lirm District Court. — 'Milo P. Smith, Judge.</p> <p>The opinion states the case.</p>

— R. M. Wright, Judge. The indictment charges that John Butler and William Butler willfully, unlawfully, and feloniously kept, and carried around on their persons, and in a vehicle, intoxicating liquors, with intent to sell and dispose of the same, by gift or otherwise. This is an appeal from a conviction under this indictment.

— Thomas Arthur, Judge. The indictment accused defendant of the crime of having carnal knowledge of an imbecile, who is described in the charge as a “female naturally of such imbecility of mind as to prevent effectual resistance.” There was a plea of not guilty. Upon trial to a jury, defendant was convicted, and appeals.

— K. EJ. Willcockson, Judge. Plaintiff and defendant entered into a contract wherein it was agreed that, upon certain conditions, defendant should execute a clear warranty deed to plaintiff for certain Iowa land. Defendant refused to make this conveyance. Plaintiff brought this action to compel specific performance of the contract, praying alternative relief if specific performance be not decreed. The court decreed the alternative relief, and defendant appeals.

— C. H. Kelley, Judge. Action to recover the amount of a dishonored bank check. Plaintiff also asked and procured a writ of attachment, to be issued and levied on defendant’s property. Defendant denied indebtedness on the check, and counterclaimed for damages for the alleged wrongful attachment. There was a general verdict for plaintiff for $105.80, also a special finding awarding damages in favor of the defendant for $105.

— E. Gr. Albert, Judge. Both parties seek a divorce on the ground of desertion. Opinion states the facts. Decree for the plaintiff in the court from which the appeal is taken. Defendant appeals.

— A. N. Hobson, Judge. Action brought after the will of Dorothea Oorts was admitted to probate, to set aside Item 10 thereof, upon the ground of undue influence inducing the execution thereof. There was a verdict in favor of plaintiff, and defendants appeal.

— E. G. Albert, Judge. Action to recover on a written contract for the sale of paint. Opinion states the facts. Judgment for the defendant in the court below. Plaintiff appeals.

— J. B. Bockafellow, Judge. Action in equity to establish and confirm the plaintiff’s claim to title to certain land, and for other equitable relief. On trial, the court found for the defendants, and dismissed the bill. Plaintiffs appeal.

— E. G-. Albert, Judge. Defendants appeal froDi the judgment of the court below, overruling a demurrer to plaintiff’s answer to defendants’ cross-petition.

— Hubert Utterback, Judge. Action to recover damages under Section 2340, Supplement to the Code, 1913-, based on the ground that defendant’s dog attacked and attempted to bite the plaintiff, and that she suffered injury by reason thereof. There was a directed verdict for the defendant. Plaintiff appeals.

<p>GIFTS: How Effected — Oral Gift of Land — Delivery with Intent to 1 Pass Title at Present Time. Proof of delivery of possession and the holding of possession .for any length of time after delivery does not, in and of itself, establish a gift. There must be shown an intent and purpose on the part of the giver to make a present gift and to pass the title to the donee upon delivery of possession, followed by such delivery in pursuance of that purpose and intent.</p> <p>GIFTS: Evidence — Burden of Proof — Essential Elements — Clear, Sat-2 isfactory, and Conclusive Showing. The burden of proof to establish an oral gift of land is on the donee, to prove by clear, satisfactory, and conclusive showing all the elements essential to a consummated gift.</p> <p>GIFTS: How Effected — Evidence—Nature of Proof. The elements 3 sufficient to a gift may be shown by facts and circumstances, as well as by direct testimony.</p> <p>WORDS AND PHRASES: “Intent.” “Intent” is an act or emo4 tion of the mind, seldom, if ever, capable of direct or positive proof, but is arrived at by such just and reasonable deductions from the acts and facts proven as the guarded judgment of a reasonably prudent and cautious man would ordinarily draw therefrom.</p> <p>GIFTS: How Effected — Sufficiency of Evidence — Oral Gifts — Occu5 pancy and Improvements by Donee. Where one delivered the possession of land to his son, with the express purpose of passing the title to him, by gift, and the son took possession of the property in reliance upon that express purpose, and made suitable improvements upon the land in reliance thereon, occupying it until his death under that supposition, the title passed to him, even though there was no conveyance in writing; and upon his death, his heirs can quiet title against the donor.</p> <p>WITNESSES: Competency — Transaction with Deceased — Oral Gift 6 of Land. In an action by the heirs of the donee to establish an oral gift of land by a father to a son, the father, under Section 4604, Code, 1897, is prohibited from testifying concerning a contract made by him with the son at the time the son took possession of the land.</p> <p>GIFTS: Review — Sufficiency of Evidence — Oral Gift of Land. Evi7 dence reviewed; and held that an oral gift of land had been made by a father to his son, and that the finding of the court to the contrary was not supported by the evidence.</p>

— O. S. Franklin, Judge. Action at law to recover possession of .a certain automobile. Verdict and judgment for plaintiff, and defendant appeals.

— E. G-. Albert, Judge. Suit in equity to establish and foreclose a mechanics’ lien. The trial court found for defendants, and plaintiff appeals.

<p>Appeal from Dubuque District Court. — D. E. Maguire, Judge.</p> <p>Appeal from a ruling on a motion to set aside a default and judgment. Motion overruled. Defendant appeals.</p>

<p>Appeal from Harrison District Gourt. — J. B. Bockaeellow, Judge.</p> <p>Suit in equity to quiet title to a narrow strip of, land claimed by the owners of adjoining city lots. Decree in favor of plaintiff, as prayed. Defendant appeals.</p>

<p>Appeal from Cedar District Court. — F. O. Ellison, Judge.</p> <p>Action in equity to set aside a deed of conveyance. Petition dismissed, and plaintiff appeals.</p>

— Joseph E. Meyer, Judge. Action in equity to recover for certain building material alleged to have been furnished the defendants, and to establish a mechanics’ lien thereon. There was a decree for the recovery of the amount claimed, as against W. F. Kucharo & Company, and petition dismissed as against the other defendants. Kucharo & Company appeal.

— E. B. Woodruff, Judge. Action by a wife to establish her right to a distributive share in certain lands claimed to be the property of her husband at the time of his death. Answer by a daughter, denying the ownership of the property in the husband at the time of his death, and claiming ownership to the property under gift. The opinion states the facts.

<p>Appeal from Cerro Gordo District Cou/rt. — M. F. Edwards, Judge.</p> <p>Action in equity to establish a trust, and to. recover the amount of a deposit in the defendant bank. The petition was dismissed, and the plaintiff appeals.</p>