Volume 189 — Iowa Reports

<p>Appeal from Polk District Court. — Thos. J. Guthrie, Judge.</p> <p>Action to recover damages for a breach of contract to ship oil. At the conclusion of plaintiff’s evidence, the court directed a verdict for the defendant. Plaintiff appeals.—</p>

<p>INSANE PERSONS: Justifying Reasonable Restraint. An insane person -who is dangerous to himself and others if permitted to go at large may, without process of law, be reasonably restrained by one who, by relationship or otherwise, is the natural or proper custodian of such insane person. But the one who does so restrain has the burden to justify his conduct by proof of every fact called for by the rule.</p>

<p>1 LANDLORD AND TENANT: Holding Over — Effect. Under a lease providing that the lessee might have an extension for a named time by giving a prescribed notice, the naked holding over, without giving such notice, will not be deemed such extension.</p> <p>2 FORCIBLE ENTRY AND DETAINER: Limitation on Action. A landlord who serves his tenant at will with a 30-ddy notice of the termination of the tenancy, and then allows the tenant to remain in possession for 30 days following the expiration of said notice, may not resort to an action of forcible entry and detainer.</p>

<p>1 TRIAL: Combining Equitable Issues Arising at Law and in Equity. Equitable issues, practically identical, and arising in two actions, one at law (replevin) and one in equity, between the same parties, over tbe same subject-matter, may very properly be consolidated and tried in tbe equitable action, especially when a trial of tlie equitable issues will be determinative of tbe entire controversy.</p> <p>2 EQUITY: Doing Equity — Forfeiture. Equity will not permit a contract forfeiture for nonpayment of a balance due, when it appears that the property bas already been paid for in an amount gre» . ítv t¡s of its value.</p>

— W. D. Boies, Judge. John Swain, a resident of Plymouth County, Iowa, died, April 27, 1917. Shortly after his death, a written instrument purporting to be the last will and testament of the deceased, was filed for probate by fpur of his children, Patrick Swain, Thomas Swain, George Swain, and Ellen Ackerman.

<p>Appeal from Polk District Court. — Joseph E. Meyer, Judge.</p> <p>Both parties appeal from the decree of the court below, involving an assessment against the plaintiff for drainage benefits. Plaintiff first gave notice of appeal, and is designated herein as appellant.</p>

<p>Appeal from Plymouth District Court. — William Hutchinson, Judge.</p> <p>The present action ivas commenced in partition. A cross-petition was filed by certain of the defendants, asking that a certain stipulation and decree be set aside and held for naught. The rights of the parties in the action of partition are based upon the decree here attacked. There was a decree for the plaintiffs as prayed, and the cross-petitioners’ petition dismissed.</p>

<p>Appeal from Poweshiek District Court. — D. W. Hamilton, Judge.</p> <p>Suit for decree that plaintiff, an adopted son, is entitled to the estate of James Patterson, deceased. Collateral heirs pleaded that plaintiff had relinquished his right to inherit. On hearing, decree was entered, as prayed. Defendants appeal.-</p>

— R. G. Poppiam, Judge. Action upon an-alleged preliminary contract for insurance for $1,000 upon the life of one Clarence A. Reynolds. There was a trial to a jury, which, by direction of the court, at the conclusion of all the testimony, returned a. verdict in favor of the defendant, and plaintiff appeals.

<p>Appeal from Carroll District Cowt. — E. G-. Albert, Judge.</p> <p>Action to recover the contract price of a -monument. Verdict and judgment for the plaintiff in the district court. Defendant appeals.</p>

<p>1 DIVORCE: False Charges of Infidelity. False charges of infidelity made in a pleading constitute cruel and inhuman treatment, especially when aided’ by oft repeated, vile, and abusive language.</p> <p>2 DIVORCE: Alimony — Division of Property. Evidence reviewed, and held to require a decree equally dividing the real estate of the parties.</p>

<p>1 WILLS: Jury question as to Mental Incompetency. Evidence reviewed in detail, and held to present a jury question on the issue oí testamentary capacity.</p> <p>2 WILLS: Unnatural Distribution as Bearing on Mental Competency. An unequal' and unnatural distribution o£ property by testator, no explanation appearing, presents a circumstance for consideration on the issue of testamentary capacity.</p> <p>3, 5 WITNESSES: Transactions With Deceased. A witness who is incompetent to testify to personal transactions or communications with a person since deceased, is not incompetent to testify to matters of observation, bearing on the physical condition of such person; i. e., (1) “that he was delirious;” (2) “that he was kind of murmuring and talking to himself about things that happened years ago;” (3) “that he talked incoherently.”</p> <p>4 EVIDENCE: Duration of Condition of Mind. An expert who has personal knowledge of the condition of a testator at a certain time may testify, not only (1) as to testator’s mental incompetency at said time, but (2) as to the probable duration thereof.</p>

<p>1 ACTIONS: Consolidation by Stipulation. Irrespective o£ the statute (Sec. 3644, Code, 1897), relative to the consolidation of actions, it is competent for parties, with the approval of the court, to stipulate for consolidation and for the terms thereof.</p> <p>2 SCHOOLS AND SCHOOL DISTRICTS: Vacancy in Office of Treasurer. The office of school treasurer is a “civil” office and, notwithstanding the provisions of Art. 9 of the Constitution, relative to the state board of education, becomes vacant whenever the incumbent ceases to be a resident of the district. (Sec. 1266, Code, 1897.)</p> <p>3 OFFICERS: Vacancy — Permanent Removal from District. An office becomes vacant whenever the incumbent permanently removes from the district for which he was elected or appointed, even though he has not taken up a permanent abode elsewhere.</p> <p>4 MANDAMUS: Possession of Funds of Public Office — Mandamus (?) or Quo Warranto (?) Mandamus is the appropriate remedy to compel the turning over of the funds and papers belonging to a public office, and in such case the court will determine whether plaintiff has prima-facie title to the office, even though quo warranto is the sole remedy for finally testing the title to the office.</p> <p>5 ACTIONS: Consolidation — Effect of Stipulation. The agreed consolidation of two separate actions, with stipulation for one decree, brings into existence a new action, with the issues of the former two actions; and a stipulation that such consolidation shall be without prejudice to issues raised in the former actions will not reach the point of determining for the court the judgment which shall be entered on the findings made.</p>

<p>Appeal from Hamilton District Court. — R. M. Wright, Judge.</p> <p>A dispute over a dividing line between lot owners. Opinion states the facts. Decree for the defendant in the court from which the appeal is taken. Plaintiff appeals.</p>

<p>Appeal from Polk District Court. — Lawrence De Graff, Judge.</p> <p>Action in replevin to recover an automatic sprinkler system, installed on premises at 410-414 Eighth Street, Des Moines, known as the Empress Theater. Jury waived, and the cause tried to the court. From judgment entered against them, defendants appeal.</p>

<p>Appeal from, Linn District Court. — F. F. Dawley, Judge.</p> <p>Action at law for damages, aided by attachment. R. Lord intervened, alleging in his petition that he was the holder of a prior mortgage upon the attached property, and asked that his rights thereunder be protected. Judgment was entered in the main action as prayed, and the lien of the attachment confirmed. The court also found that the lien of intervener was prior and senior to the attachment lien,, and that plaintiffs were not entitled to a vendors’ lien, as alleged in their answer to petition of intervention. Plaintiffs appeal.</p>

— J. B. Rockafellow, Judge. Action to recover for injuries received by a fall upon one of defendant’s sidewalks. The opinion states the facts. Verdict and judgment for plaintiff. Defendant appeals.—

<p>Appeal from Butler District Court. — M. F. Edwards, Judge.</p> <p>Defendant appeals from a judgment for damages for the relocation of a public highway.</p>

— W. J. Springer, Judge. Action to recover for board and lodging furnished one Runion, a man of unsound mind. The opinion states the facts out of which the controversy arises. A motion was made to transfer to equity, and overruled. From this ruling the defendants appeal.

<p>Appeal from Benton District Court; — James W. Willett, Judge.</p> <p>The trial court dismissed a petition of said Collins to construe a will. Said interveners Hartman Company appeal.</p>

<p>Appeal from Polk District Court. — Lawrence DeGraff, Judge.</p> <p>Action to recover damages for diverting water on plaintiff’s land, through a ditch constructed by the defendant. At the conclusion of all the evidence, the court directed a verdict for the defendant. Plaintiff appeals. For a full statement of the facts, see opinion of this court on former appeal, reported in 184 Iowa 384.</p>

— R. G. Popi-tam, Judge. Suit in equity to quiet title to a body of land comprising 7 or 8 acres. The defendant denied the material allegations of the petition, and presented a cross-bill, asking to quiet title in himself to the same body of land. A trial being had, there was a decree for the defendant. The plaintiff appeals.

<p>Appeal from Webster District -Court, — R. M. Wright, , Judge.</p> <p>Dependant appeals from an order refusing to dissolve a temporary writ of injunction.-</p>

<p>1 LANDLORD AND TENANT: .Premises — Possession, Enjoyment, and Tlse — Repairs. In the absence of a covenant or agreement •by the landlord to make repairs, or to maintain the leased premises in a safe and suitable condition for the occupancy and use of the tenant, he is not bound to do so.</p> <p>2 LANDLORD AND TENANT: Premises — Possession, Enjoyment, and Use — Duty of Landlord. While a tenant could not require the landlord to repair a defect existing at the time of the lease, or occurring thereafter from causes other- than the landlord’s acts, nevertheless the landlord was under .an implied obligation not to disturb.or otherwise interfere with the leased premises.</p> <p>3 LANDLORD AND TENANT: Premises — Possession, Enjoyment, Use — Duty of Landlord. It was the duty of the landlord, after removal of tlie building adjoining the one leased, to take such steps as were reasonably necessary to maintain the leased building in the condition in which it was at the time the lease was entered into, except as to defects or injuries other than from his acts.</p> <p>4 LANDLORD AND TENANT: Premises — Possession, Enjoyment, and Use — Negligence of Landlord. Evidence reviewed, in an action against a landlord by a tenant for injuries to property from the collapse of a wall on leased premises, and held sufficient to go to the jury on the question whether the landlord was negligent, and had caused an adjoining building to be removed, without making reasonable provision for protecting the leased premises from becoming untenantable or dangerous, because of the weakening or exposure of the wall and foundation to the action of the elements.</p> <p>5 RECEIVERS: Negligence — Duty to Tenant on Company’s Property. Evidence" reviewed, in an'action against a receiver of a railway for injuries to property by the removal of adjoining wall of leased premises; where there was nothing, to indicate that the receivership was not for the general purpose of defending and protecting the property of the railway company, and held, sufficient to go to the jury upon the question whether the receiver, who had boon appointed after the removal of the wall, was negligent in failing to brace the tenant’s wall, after notice, that the foundation was giving away.</p>

<p>Appeal from Dubuque District Court. — D. E. Maguire, Judge.</p> <p>Action in equity for divorce. Decree for plaintiff, and defendant appeals,</p>

— Henry F. Wagner, J udge. Suit in equity to set aside certain deeds of real estate. The plaintiffs are the heirs at law of the grantor of such deeds. The grounds of attack were: (1) That the grantor lacked mental capacity to make the same; (2) that the execution of the same by the grantor was procured by fraud and undue influence. .After a tria] upon the merits, there was a decree dismissing the petition. The plaintiffs appeal.

<p>1 FRAUD: Fiduciary Relations. A showing of long-continued intimate relations between a nonassertive sister of but little education and experience, and a domineering brother of good education and wide business experience, may be sufficient to cast upon the brother the burden of proof to show freedom from fraud of a conveyance executed by the sister to the brother without consideration.</p> <p>2 TRUSTS: Parol Evidence. While parol evidence is inadmissible to establish an express trust in real estate, yet one who is admittedly the owner of real estate may, in explanation of his title, orally testify that his grantor never was the owner of the property, was simply a trustee for the one so testifying, and that the grantor’s deed was simply in execution of the trust.</p> <p>Preston, Salinger, and Stevens, JJ., dissent on the question of fact.</p>

— W. J. Springer, Judge. Defendant appeals from a judgment upon the verdict of a jury. The material facts are fully stated in the opinion.

— F. O. Ellison, Judge. Action by the plaintiff in each suit against defendants for damages. The causes were tried together, and resulted in separate verdicts, and judgment in favor of each of the plaintiffs. The defendants appeal.

<p>1 DRAINS: Substantial Benefits and Moderate Costs. An order establisbing a drainage district will not be reversed, when it is made to appear that the improvement will result (1) in substantial benefits, (2) at comparatively moderate cost.</p> <p>2 DRAINS: Appeal — Delay—Effect. The reluctance ot the appellate court to interfere with orders establishing drainage improvements will, it is impliedly suggested, be increased in the same ratio that there is delay in prosecuting the appeal.</p>

Appeal '¡rom Shelby District Court. — Thomas Arthur. J udge. Suit for tlie partition of real estate. Defendants appeal from a judgment upon demurrer to answer.

— W. J. Springer, Judge. Original proceeding in equity for the vacation of a judgment and decree in a divorce action, and for a new trial. A demurrer to plaintiff’s petition was sustained, and he appeals.

— R. M. Wrigi-it, Judge. In the district court, this was an appeal by McLain from an order of the city council of Ames, assessing drainage benefits against a portion of his farm. The district court awarded him partial relief. From such order of the district court, the city council has appealed. In the discussion of the case, we shall refer to McLain as the plaintiff, and to the city council as the defendant,

— C. W. Vermilion, J udge. The controversy herein involves certain probate proceedings in the district court. It' involves the title to a certain 40-acre tract of land, Avliich was devised by the will of Sexton Mount, probated in November, 1885. An administrator de bonis non of the estate of Sexton Mount was appointed, upon the application of appellee Kurtz. This procedure was resisted by appellant, Wilkerson, upon grounds to be stated in the opinion.

<p>Appeal from Mahaska District Court. — K. E. Willcocksox, Judge.</p> <p>This is a will contest. At the close of all the evidence, there was a directed verdict for the proponents. The contestants appeal.</p>

— F. O. Ellison, Judge. Action to recover for personal injury. Opinion states the facets. Directed verdict for the defendant. Plaintiff appeals.

— John T. Moffit, Judge. The plaintiff brings this action in her own behalf and in behalf of her minor daughter, to have quieted in her the title to 240 acres of land. She claims this in her own right as widow, and in her daughter’s right as heir of one Rudolph Kasper. Her claim is that the father and mother of Rudolph, who are defendants in this suit, gave this land in controversy to Rudolph, in consideration of his paying $725 annually during the lifetime of the father.

<p>TRUSTS: Engrafting Trust on Legal Title. A trust will not be engrafted on a legal title, in the absence of very clear and definite supporting testimony. Evidence involving dealings between a mother and son, with intermingling of funds from various sources, reviewed, and held insufficient to establish any trust relation.</p>

<p>1 NEGLIGENCE: Negligence Arising Out of Contract Relation— Strangers to Contract. A temporary amphitheater, erected in the public street by a contractor for another, with negligence of such a nature that the same might have been readily discovered on quite reasonable examination, is not such an imminently dangerous structure as to come within any exception to the rule that negligence arising out of contract relations will not give a cause of action to one who is a total stranger to the contract.</p> <p>2 NEGLIGENCE: Res Ipsa Loquitur. Principle recognized that the doctrine of res ipsa is applicable only, as a general rule, when all the instrumentalities which might cause an injury are under the exclusive control and management of the defendant.</p> <p>3 NEGLIGENCE: Extent of Permissible Reliance on Contractor. A photographer who has caused a temporary amphitheater to be constructed by a contractor for photographic purposes, and has exclusive custody of such structure after its completion, may, perhaps, so rely on the skill of the contractor as to be excused from inspecting the structure and from discovering weakened timbers; but he may not be excused from guarding the structure in order to prevent the removal of supporting parts thereof, if such guarding appears reasonably necessary.</p>

<p>1 PLEADING: Want of Verification — -Waiver. Failure to move to strike an unverified answer works a waiver of the defect.</p> <p>2 AFFIDAVITS: Cross-Examination of Affiant Discretionary. Whether an affiant shall he called for personal cross-examination is very largely within the discretion of the court. (Sec. 4678, Code, 1897.)</p> <p>3 DIVORCE: Wife Liable for Temporary Alimony and Suit Money. A wife, plaintiff in a divorce action, may, on a proper showing, he compelled to pay temporary alimony and suit money to an impecunious husband.</p> <p>4 DIVORCE: Insufficient Temporary Alimony. In the absence of a definite showing of inadequacy in the allowance of temporary alimony, the appellate court will decline to interfere, and will leave the matter for adjustment on final hearing on the merits.</p>

<p>1 PARTIES: Real Party in Interest. One in whose name a contract is made for the benefit of another, or the beneficiary of such contract, may be a party plaintiff to enforce the contract.</p> <p>2 UMITATION OF ACTIONS: Unwritten Continuing and Unexecuted Contract. An action to recover sums of money, under a continuing and unexecuted contract for the support of plaintiff’s wards, is not barred, though brought more than five years after the expenditures were made.</p> <p>3 FRAUDS, STATUTE OF: Party’s Direct Obligation. A contract directly binding the obligor tor the support and education of the wards of another is not within the statute of frauds.</p> <p>4 PLEADING: Pleading Conclusion. An allegation that “the contract alleged * * * is so vague * * * that it cannot be enforced, and (defendant) denies that said contract has any validity,” is a pure conclusion, and properly stricken on motion.</p> <p>5 ELECTION OF REMEDIES: Single Contract. The doctrine of election of remedies has no application to an action wherein plaintiff rests his right of recovery on a single contract, even though his testimony is conflicting as to when and where the contract was made.</p> <p>6 APPEAL AND ERROR: Indefinite Brief Point. A brief point which asserts “that the court erred” in a certain ruling, and then, in substance, directs the court to wander through the reporter’s notes to find the reasons for such error, will be given no consideration.</p> <p>7 TRIAL: Instructions — Correct But Not Explicit. A correct instruction, but one not just as explicit and all-embracing as counsel would like to have it, is sufficient, in the absence of a request for amplification.</p> <p>8 APPEAL AND ERROR: “Moot” Questions. Remanding a cause for complete retrial -nuiy render an assignment of error wholly moot. So held where the assignment was (1) excessive verdict, (2) verdict contrary to charge, (3) improperly permitting the belated filing of a claim, and (4) refusal of a continuance.</p> <p>9 EVIDENCE: Conclusion. It is objectionable to permit a witness, after reciting what was said, to interject the statement, “He as much as said that, you know.”</p> <p>10 TRIAL: Order of Evidence. One may be permitted to show the amount of his expenditures for which recovery is sought, before proving the contract giving right to recover therefor.</p> <p>11 EVIDENCE: Hearsay. Testimony that a third party “consented” to a contract is not hearsay when plaintiff’s claim is that the making of such contract was conditional on the consent of such third party.</p> <p>12 TRIAL: Examination — Question Not Revealing Purpose. One may not complain of the exclusion of a question which does not reveal wliat was sought to he proven, and counsel makes no statement of what he expects to prove.</p> <p>13 WITNESSES: Transaction with Deceased. The interest which will exclude a witness from testifying to a transaction with a deceased must he direct and immediate.</p> <p>14 WITNESSES: Transaction with Deceased- — Disqualifying “Interest.’’ A guardian who, under a claim that decedent obligated himself to pay for the care of the guardian’s wards, prays for an allowance for the wards from decedent’s estate is, irrespective of her position as a plaintiff, incompetent to testify to the terms of the contract with decedent, or to any essential fact dependent on the contract when it appears that, if the prayer be granted, a fund will he created from which the guardian will be personally reimbursed for large outlays made for her wards.</p> <p>15 VERDICT: Motion for Direction — Waiver and Effect. A defendant who unsuccessfully moves for directed verdict at the close of plaintiff’s evidence, and does not renew the motion at the close of all the evidence, waives error in the ruling; yet he may, in motion for new trial, continue to insist that the evidence is insufficient to support the verdict.</p>

<p>1 MECHANICS’ LIENS: Personal Contracts with Owner’s Agent. Contracts by an agent in Ms own name, (1) pursuant to his contract with the owner, (2) tor the benefit of the owner, and (3) with the owner’s approval, bind the owner’s property, even though the materialman originally supposed he was contracting with the owner’s contractor.</p> <p>2 PRINCIPAL AND AG-ENT: Retaining Benefit and Denying Authority. A principal may not retain the benefits of a contract and then deny the authority of an agent to enter into such contract.</p> <p>3 MECHANICS’ LIENS: Timely Filing. The issue whether a lien was filed within 30 days becomes quite unimportant when it is conceded that the materialman filed within 90 days, and the court finds that he was a principal contractor.</p>

<p>1 ASSAULT AND BATTERY: Other Offenses to Show Purpose. In damage action for lascivious assault, evidence of an unalleged previous and nonremote assault on plaintiff is admissible, as bearing on defendant’s purpose in making the later assault, on which recovery is sought.</p> <p>2 EVIDENCE: Lascivious Relation of, Parties. In damage action for lascivious assault, statements by defendant to plaintiff and others, suggestive of a lascivious disposition toward plaintiff, are admissible, as tending to prove such disposition.</p> <p>3 TRIAL: Misconduct in Argument — Inadequate Objection. Objection to improper argument is waived by the objecting counsel by tacitly directing the arguing counsel to proceed with his argument, after a controversy as to the propriety of the argument.</p> <p>4 TRIAL: Verdict — Impeachment. Jury-room arguments based on the evidence may not be shown by affidavits.</p>

<p>Appeal from Linn District Court. — F. O. Ellison, Judge.</p> <p>Action in equity to restrain the defendant from obstructing a natural waterway. Cross-petition by defendant, also praying an injunction. The material ’ facts are stated in the opinion. The court dismissed defendant’s cross-petition, and caused a decree to be entered in favor of plaintiff, substantially as prayed. Defendant appeals.—</p>

<p>Appeal from Webster District, Court.• — R. M. Wright, Judge.</p> <p>Appeal from an order confirming the sale of land by referee in partition.</p>

<p>Appeal from Hamilton District Court. — R. M. Wright, J udge.</p> <p>Claim for $3,900 against tbe estate of the decedent, based upon an account for services rendered by the grandmother of the plaintiffs to the decedent for a period of 26 years. There was a trial to a jury, and a verdict for the plaintiffs for the full amount claimed. The defendant has appealed.</p>

<p>Appeal from Mahaska District Court. — K. E. Willcockson, Judge.</p> <p>John W. McMillan died before his wife, Mary Ann McMillan, and died testate. Mary Ann McMillan and her son, W. H., executed a note to appellee, Oskaloosa Savings Bank. This is a controversy over whether Mary A. McMillan has an interest in the estate of her predeceased husband which may be subjected to the payment of said note. In effect, the trial court held that she had such an interest, and the administratrix appeals.</p>

<p>NEGLIGENCE: Willful Failure to Exercise Customary Caution. One who deliberately refuses to do a feasible and accustomed thing, which would have avoided the accident, may not recover of another for the resulting injury. So held where one ran an engine from a loading platform upon a fiat car, without equalizing, icith accessible blocks, the difference in height of the platform and car.</p>

— J. B. Rockafellow, Judge. Suit iu equity for specific performance of an alleged contract of sale of a farm. The contract, if such, consisted of telegrams and letters.

<p>Appeal from Linn District Court. — Milo P. Smith, Judge.</p> <p>Action in equity to rescind a land trade. Opinion states the facts. Decree for the plaintiffs in the court below. Certain of the defendants appeal.</p>

<p>MUNICIPAL CORPORATIONS: Paving Contract — Substantial Compliance With Resolution. The construction of a concrete pavement 6 inches in thickness is a substantial compliance with a resolution of necessity fixing the thickness at -7 inches, in the absence of evidence showing that the reduction will materially impair tbe durability of the pavement.</p>

<p>Appeal from Winneshiek District Court. — C. H. Houck Judge.</p> <p>Suit to cancel deed purporting to convey certain lots of plaintiffs’ to J. D. Layton, and to quiet title therein. Layton alleged title in the property, and prayed that it be quieted. On hearing, the petition was dismissed, and the relief prayed by Layton granted. The plaintiffs appeal.—</p>

<p>Appeal from Fayette District Court. — H. E. Taylor, Judge.'</p> <p>Plaintiff is a widow, about 80 years of age, and the defendant John Saundry is her son, and his codefendant, his wife. Plaintiff brings this action to set aside a deed conveying a farm of 120 acres to her son, and to recover $5,000 alleged to be due her as rent. There was a decree and a judgment for $2,000 in favor of the plaintiff in the court beloAV. Defendants appeal.</p>

<p>1 DESCENT AND DISTRIBUTION: Distributive Share — Evidence. Evidence held to show that, in the division of an estate, the widow took certain real estate as part of her distributive share.</p> <p>2 WITNESSES: Competency — Transaction With Deceased. In order to exclude the evidence of an interested party as to a transaction with a deceased person, the objection must be to the incompetency of the witness, not to the incompetency of the evidence.</p>

— H. A. Fuller, Judge. Action at law to recover $141.23, for goods alleged to have been sold by plaintiff to the defendant. Trial to a jury, and verdict and judgment for the defendant. The plaintiff appeals.

<p>1 TAXATION: Shares of Bank Stock — Real Estate Deduction. The method provided by Sec. 1322, Code Supp., 1913, for the assessment of the shares of stock of national, state, and savings banks and loan and trust companies is, in view of its legislative history, and purpose to render absolutely uniform the method of assessing taxes on banking capital, exclusive of anything in the prior section of. the Code of 1897, known as Sec. 1324. It follows that from the total amount of capital, surplus, and undivided profits there should be deducted the amount of capital actually invested in real estate, and not the amount which the assessor has seen fit to place on such real estate for taxation purposes. ■</p> <p>2 TAXATION: Double Taxation on National Banks. Principle recognized that there can be no double taxation on the shares of stock of national banks.</p>

<p>1 HOMICIDE: Nonpositive Identification of Accused. Evidence held to sustain a verdict of guilt, even though the identification of the accused was not altogether positive.</p> <p>2 HOMICIDE: Negativing Self-Defense. Circumstantial evidence reviewed, and held to negative a plea of self-defense.</p> <p>3 CRIMINAL LAW: Failure to- Call All Witnesses. The State is not bound, on the trial of a criminal, to call every attainable witness; neither is the accused entitled to an instruction that the failure to call an attainable grand jury witness creates a presumption that the testimony of such omitted witness would be adverse to the State. Especially is this true when other witnesses testify to every, fact immediately attending the comí mission of an offense which the omitted witness could testify to.</p> <p>4 CRIMINAL LAW: Suggesting Conviction on Former Trial. It is not error for the court to say to the jury “that, Try reason of a former trial, the defendant cannot be convicted of murder in the first degree.” Such expression does, not, in effect, tell the jury that the defendant has already been convicted of second-degree murder.</p> <p>5 EVIDENCE: Res Gestae. Statement of a witness, material, and explanatory of circumstances immediately -preceding a homicide and connected therewith, reviewed, and held to constitute a part of the res gestae.</p> <p>6 TRIAL: Gambling on Result of Answers. Objections to questions must be timely. A litigant may not gamble on the result of an answer — retain it if favorable, move to strike if unfavorable.</p> <p>7 CRIMINAL LAW: Misconduct in Argument. The appellate court will not declare prejudicial a statement by the prosecutor in argument that defendant is “guilty as hell,” when it appears that such claim of prejudice has been overruled by the trial court. , ■</p> <p>8 CRIMINAL LAW: Curing Error by Striking Testimony and by Instructions. Error, if any, in receiving testimony is cured by striking it from the record, and by pointed instructions to disregard it.</p> <p>9 HOMICIDE: Self-Defense — Instructions. Instructions, reviewed, and held (1) not to turn the jury into a field of mere conjecture on the subject of self-defense, nor (2) to assume that deceased was not armed with a dangerous weapon.</p> <p>10 CRIMINAL LAW: Inexplicit but Correct Instructions. Instructions inexplicit, but correct so far as they go, are sufficient, in the absence of a request for more explicit ones.</p>

<p>1 PROSTITUTION, HOUSE OF: Declarations of Inmates. Declarations by tbe inmates of .a house are admissible on the issue whether it is a house of prostitution. (Sec. 4944-h9, Code Suppl. Supp., 1935.)</p> <p>2 PROSTITUTION, HOUSE OF: Abatement — Knowledge of Owner. A house of prostitution may be abated and the house closed, irrespective of the knowledge of the owner of the premises.</p> <p>3 PROSTITUTION, HOUSE OF: Imposition of Mulct Tax — Knowl- ' edge of Owner. Premises which are shown to be used for purposes of prostitution are presumptively liable to the $300 mulct tax. Want of knowledge on the part of the owner.of such prohibited use will defeat the tax, but the owner has the burden to so show.</p>

<p>Appeal from Woodbury District Court. — John W. Anderson, Judge.</p> <p>The defendant was indicted, tried to a jury, and convicted of the crime of sodomy, and appeals.</p>

<p>Appeal from Johnson District Court. — R. G. Popiiam, Judge;</p> <p>Appeal from a judgment of conviction for fraudulently uttering a forged instrument.</p>

- — B. F. Cummings, Judge. Defendant was convicted of grand larceny, and appeals from the judgment of the court sentencing him to imprisonment in the penitentiary at Fort Madison.-

— J. IT. Applegate, J udge. This is an appeal by the plaintiff from certain orders of the district court: First, dissolving a temporary injunction; and second, refusing, upon final hearing, to order a permanent injunction. The defendant is a public utility cor poration, holding a franchise- from the toivn of Woodward, plaintiff, for the maintenance and operation of its electric light plant in such town. It furnished the service for many years, at rates provided by ordinance.

— John W. Anderson, Judge. Suit in equity for an accounting, and for a division of assets in which the three parties to the suit were jointly interested. The contending parties are the plaintiff Ward and the defendant, Chew. Harris joined as coplaintiff with Ward. The defendant, Chew, ñíed a cross-bill, asking for partition in kind of the assets, which consisted of real estate. The decree granted the relief prayed in the cross-petition. The plaintiff Ward has appealed.

— W. S. Hamilton, Judge. Action at law to recover damages alleged to have been occasioned by negligence of the defendant to a boat owned by the Steiner Amusement Company, which has assigned to the plaintiff its claim for compensation. There was a directed verdict and judgment for the defendant, and plaintiff appeals.

<p>Appeal from Decatur District Court. — Thomas L. Maxwell, Judge.</p> <p>Suit in equity to reform a contract of purchase of real estate, and to recover from the seller the excess purchase price paid therefor by the purchaser by the mutual mistake of the parties. This excess payment arose out of a shortage of acreage in the tract purchased. There was a decree for the plaintiff, and the defendant has appealed.</p>

<p>Appeal from Cedar District Court. — -John T. Moffit, Judge.</p> <p>On July 21, 1915, John Gladfelter and three others filed their petition to the board of supervisors of Cedar County, praying that “a road commencing at a point 80 rods and 20 feet south of the northwest corner of Section 21, Township 80 north, Range 3 west of the 5th P. M., and running thence south on the section line between Sections 21 and 20 until it intersects Cedar River, be vacated.” The commissioner appointed by the county auditor reported in favor of the vacation of the highway, on March 21, 1918, and on April 8th following, John Yonota, Jr., filed a claim for damages consequent on said vacation, and, three days latefi, John Yonota filed a like claim for $1,000 damages. Thereupon, appraisers were appointed, as provided by Section 1499 of the Code, and later reported that no damages would result from the vacation proposed. Objections to said vacation had been filed May 4, 1918, for that “said road is the only road reaching the said river for many miles, and the same is the only highway that is laid out reaching lands of John Yonota lying on the said river, and is the only highway that is available for John Yonota, Jr., who owns 5 acres of land lying east of the said highway about 40 rods.” On June 2d following, the board of supervisors entered an order denying the claims for damages, and vacating the road. Thereupon, an appeal to the district court was effected. That court sustained a motion to dismiss such appeal, on the ground that no appeal may be taken from an order by the board of supervisors denying damages on vacation of a highway. From this order John Yonota and John Yonota, Jr., appeal.</p>

— Milo P. Smith, Judge. Suit to set aside a conveyance, as having been obtained by fraud, resulted in a decree as prayed. The defendant appeals.

— Thomas, J. Guti-irie, Judge. Motion to set aside services of original notice and judgment was overruled. The defendants appeal.

— D. W. Hamilton, Judge. . Action in equity to enjoin the defendant city and A. H. Bioli, proposed grantee of an- electric franchise, from proceediug under ordinances- duly passed by the city council,' granting to-Rich a franchise to operate an electric light plant within the corporate limits of the city.

— J. B. Rockafellow, Judge. . The defendant ivas charged with the- crime of rape upon Flossie Hogáboom, who -was 13 years- of age. He was tried and convicted. He

— E. G. Albert, Judge. A demurrer to the petition on the' ground that the facts alleged did not warrant the relief sought,, was sustained. The plaintiff appeals.

— Hubert Utterback, .Judge. In this suit,, begun February 21, 1918, the plaintiff, as executor of C. M. Sexton, deceased,, prays that the defendant C. L. Percival Company and its officers be required to issue a certificate for 15 shares of stock to him, as such executor. Prior to 1901, a corporation known as the D. H. McDoneld Company was organized.

<p>EMINENT DOMAIN: Eight to Condemn Private Way. A landowner who has, or may obtain, a vested interest in a private way which will afford him reasonable opportunity to pass to and from his land, and enable him to reach a public way, may not condemn a private way over the land of another. (Sec. 2028, Code Supp., 1913.)</p>

<p>Appeal from Greene District Court. — M. E. Hutchison, " Judge.</p> <p>Action to recover damages for an alleged seduction. Opinion states the facts. Verdict and judgment for the plaintiff. Defendant appeals.</p>

— Milo P. Smiti-i, Judge. For reasons that will appear in the opinion, it is not required that any preliminary statement be made at this point.

— R. M. Wright, Judge. The opinion sufficiently states the nature of the case and the material facts. From judgment in favor of the defendant, plaintiff appeals.

— H. B. Boies, Judge. No statement is required at this point, beyond saying that the jurisdiction of this court is challenged because of a failure to serve some of the parti^p defendant with notice of appeal.

— William Hutchinson, Judge. Action at law to recover upon a life insurance benefit certificate. There was a trial to the court without a jury. Judgment for the plaintiff, and defendant appeals.—

<p>1 WILLS: Life Estate (?) or Fee (?) A devise to a wife, in words unquestionably, but not expressly, creating a fee, if such words stood alone, but followed by a later nonrepugnant paragraph directing a division of all property “remaining” after the death of the wife equally among testator’s children, rpust, in order to give effect to all that testator has declared, be construed as a life estate only, with power to sell.</p> <p>2 REMAINDERS: Vested (?) or Contingent (?) A devise of a life estate, with power to sell and with direction to .divide all property “remaining” after the death of the life tenant among named persons, creates a vested remainder.</p>

— W. S. Hamilton, Judge. Action at law to recover upon an accident insurance policy. Trial to a jury. At the close of plaintiff’s evidence,' the trial court sustained defendant’s motion for a directed verdict in its favor. Plaintiff appeals.

— E. B. Woodruff, Judge. Action a.t law to recover judgment upon certain promissory notes, payment of which, it is alleged, was, for a valuable consideration, assumed by the defendant. Notice was served' upon the defendant in Page County, Iowa, on September 8, 1919, to the effect that a petition demanding such recovery Would be filed in the office of the clerk of the district court of said county on or before October 1, 1919.

— -Lorin N. Hays, Judge. Appellant, Hattie S. Richmond, claims that the defendant bank converted certain certificates of deposit transferred to her by her father. The administrators above named intervened, claiming, among other things, that the certificates belonged to the estate of the plaintiff’s -father, because he was mentally incapable to make the transfer. There was verdict and judgment against the plaintiff, and she appeals.

— W. W. Cardell, Judge. Suit to rescind on account of fraudulent representations, alleged to have induced plaintiff to purchase certain town lots. He has recovered the purchase price, and defendant appeals.

<p>1 NEW TRIAL: Petition for New Trial — Discretion. Conceding, arguendo, that the court has a discretion in granting a new trial on petition, yet such discretion may not be carried to the extent of granting a new trial, in the absence of substantial proof of the allegations of the petition. Evidence held wholly insufficient to establish either fraud in obtaining a default or a custom alleged to have been violated in entering the default.</p> <p>2 CERTIORARI: Judgment as Adjudication. A judgment, on certiorari, that a default had been set aside in an improper manner — without application or hearing — is no impediment to the setting aside of such default in a proper manner.</p> <p>3 APPEAL AND ERROR: Law of Case. A finding that a petition stated a cause of action is conclusive on appeal'from;an order setting aside a judgment by default.</p> <p>4 NEW TRIAL: Fraud in Obtaining Default. A statement by counsel, when obtaining a default, (.1) that, if good cause, were thereafter shown why said judgment should be set aside, he would expect the court to set it aside, and (2) that the defendant had been dilatory, furnishes no basis for granting a new trial on petition, especially when it does not appear that the court entered the default in reliance thereon.</p>

<p>1 EMINENT DOMAIN: Access to Premises. Evidence held to show that the building of a viaduct had, in some degree, interfered with access to adjoining property, and therefore that a jury question on the issue of damages was presented.</p> <p>2 EMINENT DOMAIN: Authorized Improvement. Statutory authority to a railway corporation to construct a viaduct over its tracks, does not absolve the corporation from the duty to pay resulting damages to abutting property. (See Sec. 2017, Code Supp., 1913.)</p>

Hays, Judge. Suit on policy. Defense that same had become suspended for nonpayment of premium note. Verdict directed for defendant. Plaintiff appeals.

— W. Gr. Sears, .Judge. Action to recover judgment against defendant upon' its written obligation to pay a certain sum of money, with interest. Trial to the court, and judgment against defendant for $117.80 and costs. Defendant appeals.

— K. E. Willcockson, Judge. Action for damages for the wrongful death of plaintiff’s decedent. There was a verdict for the plaintiff, and defendant appeals.

<p>1 MUNICIPAL CORPORATIONS: Negligence — Depression in Walk. Tlie maintenance in a sidewalk of a depression with ragged and dilapidated edges, even though the depression is of slight depth, — some two inches, — may present a jury question on 'the issue of negligence.</p> <p>2 NEW TRIAL: Newly Discovered Evidence — Failure to Investigate Known Facts. Diligence in the matter of newly discovered evidence as ground for new trial demands that a party proffering the new evidence follow up and investigate during the trial suggested facts brought to light during the trial.</p> <p>3 TRIAL: View of Premises. The court is within its discretion in refusing to permit the jury to view the scene of an accident at a trial over two years after the accident, and at a time when the condition of the walk had materially changed.</p> <p>4 NEGLIGENCE: Defining Reasonable Condition. The court need not “define the condition in which a walk must be in order to be in a reasonably safe condition,” especially in the absence of a request.</p> <p>5 NEGLIGENCE: Evidence — Condition After Injury. Evidence of physicians reviewed, as to the physical condition of an injured party as late as two years after an injury, and held properly received, over the objection that it was too remote.</p>

— Lorix N. Hays, Judge. On October 21, 1919, plaintiffs filed in the district court a petition for certiorari, against defendánts, asking that the proceedings of the county board of education, in sustaining the objections to the boundaries of the proposed consolidated independent school district of Jefferson, be annulled and set aside. Trial was had, under stipulation that it be tried under Section 4160 of the Code.

— George Jepson, Judge. C. L. Chapman, plaintiff’s decedent, has verdict and judgment as damages for an assault committed on him by defendant, Peter Lamp. Defendant appeals.

— R. M. Wrigiit, Judge. Action at law' to recover damages by reason of sickness on the part of Alfred Davis, alleged to have been caused by the eating of Van Camp’s pork and beans. At the close of all the evidence, there was a directed verdict for defendant. Plaintiff appeals.

<p>1 JUDGMENT: Construction of Contractual Decree. In the construction of a contractual decree, the facts and circumstances attending the execution of the contract, which was, in part, carried into the decree, may he given due consideration.</p> <p>2 JUDGMENT: Construction of Contractual Decree. A contractual decree requiring defendant “to pay all the expenses of each of said children while they are away from the home of their mother, at school or college, and shall pay (other named expenses of the children) until each of said children is of legal age,” is reviewed, and, in the light of the circumstances, is held to charge defendant with the college expenses of the children, even after they attained their majority.</p> <p>3 DIVORCE: Modification of Contractual Decree. A contractual deScree (based upon a contract entered into prior to the decree of divorce) wherein defendant was charged generally with the obligation to defray the expense attending the education of his children after attaining their majority, may, on defendant’s subsequent default, be so modified as to fix and determine the specific amounts which defendant shall pay for said purpose.</p> <p>4 PLEADING: Failure to Obtain Leave to Amend. An amendment will not be stricken for want of leave, if leave would have been given, if asked.</p> <p>5 INFANTS: Action by Next Friend — Abatement. An action beneficial in its nature, brought hy a minor by his next friend, does not automatically abate, upon the minor’s attaining his majority.</p> <p>6 EQUITY: Once-Acquired Jurisdiction. Principle recognized that equity, having once acquired jurisdiction, will adjudicate all matters pending, even though some such matters are purely law questions.</p> <p>7 PARTIES: Beneficiary Under Contractual Divorce Decree. In an action to enforce a contractual divorce decree, in so far as it obligated defendant to furnish his child with a college education, even though the child has attained its majority, the child is a proper party plaintiff.</p> <p>S DIVORCE: Support of Children. A fair and just contract, carried into the decree of divorce, and providing for the support of the children of the parties by one of the parties, may be enforced.</p> <p>9 DIVORCE: Contractual Decree in re Support of Children — Enforcement. When one parent is, by the decree of divorce, obligated to provide for the support and education of a child, in accordance with a fair and just contract which is carried into the decree, and refuses to carry out such obligation, the other party to the proceeding may recover of the defaulting party sums necessarily expended in supporting and educating the child.</p> <p>10 DIVORCE: Contractual Decree in re “Extraordinary” Expense— Attorney Fees. In an action to enforce a contractual decree, in so far as such decree was for the benefit of minors, held that the court might make a reasonable allowance of attorney fees in favor of the minors.</p>

— J. W. Anderson, Judge. The trial court adjudged that, on settlement of the affairs of a partnership at one time existing between these parties, a stated sum was due the plaintiff, appellee, and gave him decree and judgment for that amount. Defendant appeals.

— C. W. Vermilion, Judge. The plaintiff has verdict and judgment for a land broker’s commission, and this appeal presents various objections thereto.

<p>TRIAL: Transfer to Law on Failure to Prove Equity. One who pleads himself into equity, hut demonstrates, on the trial in equity, that the action is solely at law, may not complain of the action of the court in declining to retain further jurisdiction, and in transferring the cause to the law calendar, and especially so when defendant was asking for such transfer.</p>

— D. W. Hamilton, Judge. This appeal involves the single question of whether the trial court erred in- holding, on objection made at special appearance, that notice served on an alleged agent was insufficient to confer jurisdiction.

— Hubert . Utterback, Judge. Action in equity to enjoin the removal of a school building, formerly used by the subdistrict, to another site within an independent consolidated district, and to enjoin the collection of certain taxes levied for school purposes, and also to enjoin the issuance and sale of bonds voted at a special election for the erection of a school building within said district. A demurrer to plaintiff’s petition was sustained, and they appeal.

Appeal -from Webster District Court. — Edward M. McCall, Judge. Upon the withdrawal of counsel for the claimant, the claim of the Portland Cement Corporation was dismissed by the court. On application by that corporation, the dismissal was vacated, and the claim reinstated. Therefore, the administratrix appeals.

<p>Appeal from Monona District Court. — George Jepson, Judge.</p> <p>On December 7, 1915, Anton Ullrich made his last will. He died on January 16, 1916. The will ivas admitted to probate. It named appellant, Christina Ullrich, executrix, and she qualified and acted. The trial court found that, in May, 1917, the estate was fully settled, the executrix discharged, and “her bondsmen released.” So far as the order appealed from rests on finding the release of the bondsmen, it is erroneous; because, by reasou of the provisions in the will, there were no bondsmen.</p> <p>On the 2áth day of June, 1919, Christina Ullrich filed a paper in probate, which ivas styled an “application to sell land.” Therein it is recited that Christina is the widow of Anton Ullrich; that,, “as such executrix,” she has paid all the indebtedness of the estate, and has turned over to herself, the widow, “the real property.” It is further alleged the will provides ':</p> <p>“If for any reason my wife as executrix thought best to sell the town property she shall have the right to do so, and to use the proceeds from the sale for any necessary purpose, or to invest in other property.”</p> <p>It is next alleged that applicant is endeavoring to educate her minor son, Bernard, now a student at the State University of Iowa; and that, in order that she may have the necessary means to complete his education, she needs to dispose of the “town property in Mapleton, as provided in said will.” Further, it is alleged that she proposed to purchase a home in Iowa, City, wherein she can board and room students, and so pay for the keeping of said minor; and that she will be unable to do this, unless permitted to sell said Mapleton property “belonging to estate of said decedent, and described in said last will.” The prayer is that she “may be authorized to dispose of said premises and invest the proceeds in a home in Iowa City.” This application was contested by the son older than Bernard. The court dismissed the application, and denied the right to dispose of said premises, as prayed. Christina A. Ullrich appeals.</p>

<p>Appeal from Linn District Court— Milo P. Smith, Judge.</p> <p>Intervener, Armstrong, prayed that a judgment he had obtained against the Mercantile Company should be made a preferred claim on assets in the hands of a receiver of that company. His petition of intervention having been dismissed, he appeals.</p>

— O. D. Wheeler, Judge. To the claim of the plaintiffs that a stated balance was due them for having given services as attorneys under written contract, various defenses were interposed. The plaintiffs liad judgment, as prayed,, and defendants appeal.

— George Jepson, Judge. The decedent obtained a policy of insurance in the defendant company. Gus Kascoutas was the beneficiary, if he survived the insured. He intentionally caused the death of assured. The appellant administrators contend that this gives the estate of decedent the proceeds of said policy. The trial court took the contrary view, and directed verdict for defendant. Plaintiffs appeal.

<p>FALSE IMPRISONMENT: 'Proximate Cause. Evidence reviewed, and held wholly insufficient' to present a jury question on the issue whether defendant’s conduct was the proximate and efficient cause of the arrest of plaintiff.</p>

<p>Appeal from Wapello District Court. — C. W. Vermilion, Judge.</p> <p>Appellee, plaintiff, has verdict a.nd judgment on a fire policy issued by defendant. It appeals.</p>

— James DeLand, Judge. Action for damages resulting from the alleged breach of an oral contract for the sale of corn. By direction of the court, the jury returned a verdict in favor of defendant, and plaintiff appeals from a judgment thereon for costs —

— Joseph E. Meyer, ' J udge. A demurrer to an indictment charging the defendant with the crime of conspiracy to commit adultery with one Clara Watts was sustained, and the State appeals.—

<p>1 DIVORCE: Impossibility of Obtaining Corroboration. Corroboration of the truth of the assigned ground for divorce must be produced, even though, from the very nature of the wrongful act, it may be practically impossible to obtain such corroboration. So held as to a charge of excessive sexual indulgence.</p> <p>2 DIVORCE: Untrue but Justifiable Accusations. Accusations of misconduct which are untrue in fact, but made in good faith and in the reasonable belief of their truth, are not grounds for divorce, even though accompanied by a measure of abuse and threats prompted by such justifiable belief.</p> <p>3 DIVORCE: Bad Faith in Consummating Marriage — Effect. Entering into the marriage relation in bad faith, and with ulterior motives, may present a very persuasive reason why such person should be denied a decree of divorce.</p> <p>4 DIVORCE: Bad Faith of Wife as Grounds. One party to a marriage may not have a divorce on the sole ground that the other party entered into the relation in bad faith, and With ulterior purpose of obtaining the property of the applicant for divorce. DIVORCE: Nonproof of Loss of Health. .Proving grounds for</p> <p>5 divorce without proving that health or life has been endangered thereby, presents a total failure of proof.</p>

<p>1 NEGLIGENCE: Contributory Negligence Per Se. One who, in full possession of sight and hearing, arid without distracting circumstances, walks at night on a railway track and up a heavy grade, and permits himself to be hit from the rear by a heavy freight train, drawn by two engines without headlight, but with unusual noise, is guilty of contributory negligence pc.r se.</p> <p>2 NEGLIGENCE: “Last Clear Chance.’’ The “last clear chance” doctrine is not available to an injured party who. by his own pleadings or otherwise, negatives wantonness or the essential fact that the injured party was seen at any time prior to the injury.</p>

■ — F. M. Hunter, Judge. Action for partition of certain property in Iowa and lands in Colorado and Nebraska. There was a decree for plaintiffs, finding that some of them were the owners of certain portions of the property in controversy, and ordering partition of the remainder. The defendants appeal.—

— Thos. J. Guti-irie, Judge. The controversy berein was submitted in the district court upon an agieed statement of facts, under the provisions of Chapter 13, Title XXI, of the Code (Sections 4377 to 4384, inclusive). It involves the construction of Section 1333, Code Supplement, 1913, as to what shall be deemed the “gross amount of premiums received,” for the purpose of collecting the 2% per cent taxes thereon.

<p>1 NEGLIGENCE: Non-Duty to Apprehend Unusual Occurrence. Even though a person may, in a measure, know that his dog, of mature years, cherishes a lurking antipathy against a Ford automobile, yet such owner is under no legal obligation to apprehend that said dog, after wandering afield in the nighttime for a distance of 80 rods from home, may fall asleep upon a 2-foot bank bordering the public highway, and may feel displeased ■when his rest is disturbed by the sudden approach of his arch enemy, and may express his displeasure by jumping into the roadway and hurling one “bark” at his distmber, and may thereupon be unceremoniously run over, with far greater resulting damages to the Ford and its occupants than to the dog. Damnum, absque injuria.</p> <p>2 ANIMALS: Collision with Dog in Highway. Evidence reviewed, and held insufficient to sustain a verdict for damages by reason of a collision with a dog in the public highway.</p>

— Chas. A. Dewey, Judge. This is a proceeding under the Iowa Workmen’s Compensation Statute, by dependents, to recover for the death of a workman from an injury alleged to have arisen out of and in the course of his employment by defendants. The claim was disallowed by the arbitration committee before which the evidence ivas taken. The evidence ivas all certified, and was properly before the commissioner and before the district court, and is before us.

A.ppeal from Marshall District Court. — James W. Willett, Judge. Action at law to recover damages for injury to baggage. There was a verdict and judgment for plaintiff, and defendant appeals.

— D. W. Hamilton, J udge. Prosecution for maintaining a liquor nuisance. There was a trial to a jury, and a verdict finding the defendant guilty. Judgment was entered upon the verdict,, and the defendant appeals.

<p>1 MASTER AND SERVANT: Workmen’s Compensation Act — Cross-Examination. Tlie fact that the Workmen’s Compensation Act casts upon a rejecting master the presumption of negligence, furnishes no reason why the master should not, in the cross-examination of the employee, he confined to the points brought out on direct examination.</p> <p>2 TRIAL: Refusal to Order Interpreter. Refusal to order an examination of a witness through an interpreter will not he disturbed, in the absence of a showing of abuse of discretion.</p> <p>3 MINES AND MINERALS: Miner’s Working Place — Instructions. Instructions reviewed, relative to the reciprocal duties of operator and miner as regards the miner’s working place, and held unobjectionable.</p> <p>4 TRIAL: Misconduct of Counsel. Explicit direction by the court to the jury to disregard misconduct on the part of counsel has large curative qualities.</p>

<p>1 FRAUDS, STATUTE OF: Personalty — Delivery. An owner of cat-</p> <p>tie, seeking to enforce an oral contract of sale on which no payment had been made, may not base delivery to the buyer either:</p> <p>1. On mere words of the alleged contract, when the cattle were, at the time, in the owner’s possession in the stockyards of a distant state, or</p> <p>2. On the fact that the alleged buyer received and appropriated to his own use the proceeds of a subsequent sale of cattle, when such transaction was, in view of the relations of the parties, perfectly consistent with the claim of no sale.</p> <p>2 FRAUDS, STATUTE OF: Testimony of Adverse Party. A petition which seeks to enforce an oral contract which is within the statute of frauds, is demurrable, unless it contains an allegation that plaintiff relies on the testimony of the adverse party to prove the contract. The Code of 1897 has not changed this rule.</p> <p>3 FRAUDS, STATUTE OF: Defendant as Witness. A defendant against whom an alleged oral contract which is within the statute of frauds is sought to be enforced, may become a witness on Ms own dehalf, and. testify as to the real nature of the transaction in question, and plaintiff will not de permitted, to contradict such testimony.</p>

— Milo P. Smith, Judge. Action in equity to enforce specific performance of the defendants’ contract to purchase land owned by the plaintiff. There was a decree in favor of the defendants, and plaintiff appeals.

— C. W. Vermilion, Judge. Action at law, to recover damages occasioned by the death of Willard White, while in the service of the defendant coal company. Trial to a jury. Verdict and judgment' for the plaintiff, and defendant appeals.’

<p>1 RAPE: Nonresistance as Bearing on Consent. A single threat to kill, unaccompanied by any demonstration of brutal force or of dangerous weapons, will not excuse a total failure of a female to make outcry or resistance, hy word or act, when she is a woman of mature years, a widow, fully conscious, and in possession of ordinary physical powers.</p> <p>2 RAPE: Definition. Definition of rape reviewed, and held sufficient, under the record presented, though subject very properly to amplification.</p>

— Ralph Otto, Judge. The accused was indicted for murder in the first degree, and convicted of manslaughter. She appeals.

— P. C. Winter, Judge. Defendant H. A. Witty and his brother, Oliver Witty, were indicted, accused of the crime of nuisance, in that they kept intoxicating liquor in the house where they dwelt, and used such dwelling house for the purpose of there selling intoxicating liquor, and were tried. Oliver Witty was acquitted, by direction oí the court. Defendant H. A. Witty was convicted, and fine of $300 imposed. Defendant H. A. Witty appeals.

— Homer A. Fuller, Judge. Action at law to recover damages for personal injury. Verdict and judgment for defendant, and plaintiff appeals.

<p>1 INSURANCE: Non-Necessity for Reformation. Reformation of a policy, in order to correct a mistaken description of personal property, is not necessary, when the property may be and is definitely and unquestionably identified by extrinsic evidence. Especially is this true when the description is inherently ambiguous.</p> <p>2 INSURANCE: Fraud in Obtaining Policy. An insurer may not avoid a policy for misrepresentation as to the manner in which the insured acquired the policy, unless the record reveals some dishonest motive, or the fact that the insurer has been misled.</p> <p>3 INSURANCE: Representation as to Location of Property. A representation that a motor vehicle was usually kept in a “private garage” is not violated by keeping the vehicle in a shed or “lean-to” on the insured’s barn, even though the shed is also used for housing other vehicles, and even though a portion of the shed is fenced off for stock.</p> <p>4 INSURANCE: Estoppel in re Location of Property. An insurer who accepts a premium, with full knowledge of the nature of the place where an insured automobile is to be kept, may not avoid liability on the plea that the insured described the place as a “garage,” when it was not strictly such.</p> <p>5 INSURANCE: Negligence of Insured. The fact that a fire was caused by the mere negligence of the insured is no defense to an action on the policy.</p>

— C. W. Vermilion, Judge. Defendant was indicted for larceny by embezzlement. It was charged that defendant, as agent for Frank Youtsey and Anna B. Youtsey, embezzled $2,525.35. Defendant was tried and convicted, and appeals.-

— Milo P. Smith, Judge. Action to recover damages for death. Directed verdict for the defendant. Plaintiff appeals. Opinion states the facts.

— James W. Willett, Judge. Action in equity, brought to specifically enforce the following provisions made in a lease between plaintiff and defendant: “It is further agreed that the lessee shall have the option and privilege of purchasing said property at the price of $8,000, July 1, 1918, at -which time, should he exercise the option to purchase, the lease shall terminate.” It appears that, since the lease was executed, the property has been improved by the city, by the…

<p>Appeal from Des Moines Municipal Court. — W. G-. Bonner, Judge.</p> <p>Suit for commission on sales of adding machines resulted in judgment as prayed. The defendant appeals.—</p>

— M. F. Edwards, Judge. Appeal from the action of the district court in refusing to confirm a sale made by its receiver. Opinion states the facts.

— A. N. Hobson, Judge. Action in tlxe name of the administrator of the estate of Edward Waters for damages.. While attempting to cross defendant’s track at a highway crossing,, the automobile in which deceased was-riding, was struck by one of its engines, killing him instantly, severely injuring his wife, and completely demolishing his automobile.

<p>1 VENDOR AND PURCHASER: Option (?) or Purchase (?) Option contract for the purchase of lands-reviewed, and held that the payment made thereunder constituted a part of the purchase price of the land, and not a part of the purchase price of' the option.</p> <p>2 MORTGAGES: Assumption of Payment. The assumption of payment of a mortgage on purchased land may not be avoided on the plea that, subsequent to the assumption, the discovery was made by the promisor that the mortgage covered lands ■ additional to that purchased.</p> <p>3 VENDOR AND PURCHASER: Option Contract. Contract reviewed, and held to be a mere option to buy, even though the price paid therefor was apparently grossly excessive.</p> <p>4 VENDOR AND PURCHASER: Forfeiture of Contract. An option contract for the purchase of realty becomes a contract of purchase whenever part of the purchase price is paid, and may then be forfeited only under the provisions of Sec. 4299 et seq., Code Supp., 1913.</p>

— H. K. Evans, Judge. Action in equity, to enjoin the collection of certain taxes levied upon the property of plaintiff to defray the cost of highway paving on North Cherry Street, in the city of Crestón, Iowa. Plaintiff appeals from the judgment of the court, dismissing his petition.

<p>DIVORCE: Unauthorized Annulment. The district court has no jurisdiction to set aside a decree oí divorce for fraud in its procurement, at a term subsequent to the entry of the decree, and on the hearing of an application confined solely to a prayer for modification of the alimony provision; and especially is this true where, in the meantime, both parties have remarried.</p>

— John E. Craig, Judge. Defendant, by special appearance, challenged the jurisdiction of the court to enter judgment. On hearing, jurisdiction so to do was sustained, and judgment entered on default. Defendant appeals.

Appeal-from Cherokee District Court. — William Hutchinson, Judge. Suit in equity to enjoin the defendant from trespassing upon plaintiffs’ property, and especially from cutting a certain second crop of clover hay, then growing upon said premises. A temporary injunction was issued, and thereafter a trial was had on the merits. The trial court dismissed the plaintiffs’ petition, and they appeal.

— William Hutchinson, Judge. Action by plaintiff on account. The defense was a general denial, and a counterclaim on account. The case was sent to a referee, who heard the evidence and reported his findings. Over the objections of the defendant, these findings were approved, and judgment entered accordingly. The defendant appeals.

— Joseph J. Clark, Judge. . Exceptions were taken to the executor’s final report, and, on trial, the executor was ordered to turn over to the legatees! or their representatives, four shares of stock, of the par value of $1,000 each, in .the J. Decker & Sons Company, $1,680 in dividends collected, with interest thereon, and a balance of $1,722.67 on four shares in said company, appropriated to his own use, with interest. The executor appeals.

<p>EXECUTORS AND ADMINISTRATORS: Interrogatories in re Claims. The statutory provisions (Secs. 3604 et seg., Code, 1897), relative to the attaching of interrogatories to petitions, answers, or replies, are applicable to proceedings in probate for establishment of claims. (Sec. 3341, Code, 1897.)</p>

<p>Appeal from Tama District Court. — James W. Willett, Judge.</p> <p>Supplemental proceedings after decree of specific performance, seeking to adjudicate plaintiff’s damages for defendant’s wrongful delay of performance. There was a decree for plaintiff, and the defendant appeals.</p>

<p>Appeal from Woodbury District Court. — George Jepson, Judge.</p> <p>Action at law to recover commission for the sale of real estate. The answer was a general denial. There was a trial to a jury, and a verdict and judgment for the plaintiffs. The defendants appeal.</p>

— H. S. Dugan, Judge. Action to recover for a commission for the sale of real estate. Trial to a jury, and, at the close of the testimony, the court sustained plaintiff’s motion for a directed verdict against two of the defendants,, Frank and Ernest, and dismissed the petition as to Faye Conway, on the ground that as to her no agency was proven, and that the evidence does not show that either of appellants had any authority to .make a contract for Faye.

<p>Certiorari to O’Brien District Court. — William Hutchinson, Judge.</p> <p>Proceedings in certiorari, to test the legality of the action of the district court in refusing a change of venue to the relator, pursuant to Section 3505, Subdivision 6„ of the 1913 Supplement, in an action brought against the relator, as defendant therein, in O’Brien County, the relator being a resident of Winnebago County.</p>

<p>TRUSTS: Trustee’s Power to Lease. A testamentary trustee, though invested with legal title, and in actual possession and occupancy of the property with the consent of the trust beneficiaries, and though the property be a homestead, may not, in the absence (1) of necessity therefor and (2) of the consent of the trust beneficiaries, and especially after the trust period has expired and the right to distribution among the bene^ficiaries has matured, execute a valid lease of the trust property, either in an individual or a trust capacity.</p>

— B. M. Wright, J udge. Counterclaim asserting that damages were due from plaintiff because of a contract made between plaintiff and defendant. A demurrer to the counterclaim ivas overruled. Hence this appeal.

— Willi\m Hutchinson, Judge. In substance, this was a suit to recover on an alleged warranty. The trial court declined to direct a verdict for defendant, and, on submission to the jury, it returned a verdict for plaintiff. Defendant appeals.

— J. W. Anderson, Judge. • The plaintiff sues for damages on account of an alleged trespass by defendant’s permitting his hogs to escape upon lands owned by the plaintiff, and there to destroy the corn of plaintiff. Verdict was directed for defendant, and plaintiff appeals.

— J. H. Arplecíate, Judge. Action Ivy plaintiff, as a lessor, to recover upon a lease the rentals due thereunder for a period of 10 months, the defendant, as lessee, having surrendered the premises prior to the accrual of such rents. The general defense was that the defendant was a tenant at will, and terminated his tenancy in due form, by service of a JO-day notice. There was a trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.'

— George Jepson, Judge. The above-named defendants were jointly indicted for the larceny of an automobile, a Cole Eight coupe.. The defendant William McClain was separately tried. From a judgment of conviction, he has appealed.

— Homer A. Fuller, Judge. The defendant appeals from a conviction on an indictment charging that he- “did attempt, by speech, action, and manner of speaking, to incite, abet, promote, and encourage hostility and opposition to the government of the state of Iowa and of the United States, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Iowa.”

Court. — Seneca Cornell. Judge. The State appeals from order directing verdict for defendant. The facts are stated in the opinion.

— J. W. Anderson and W. G. Sears, Judges. The appellant was indicted for the crime of breaking and entering. He was tried to a jury, found guilty, and judgment pronounced. He appeals.

Woodbury District Court. — J. W. Anderson, Judge. The defendant John Monroe was indicted jointly with another for grand larceny,, in that they jointly stole a suit of clothes, of the value of $50. The defendant John Monroe has appealed.

<p>Appeal from Woodbury District Court. — George Jepson, Judge.</p> <p>Appeal from an order granting a new trial.</p>

Dunham, Judge. Action for damages consequeut upon the drowning of Velma Leona Gregson, resulted in a directed verdict for defendant and judgment thereon. Plaintiff appeals.—

— H. F. Wagner, Judge. Original action upon a promissory note in justice of the peace court. Judgment for plaintiff, and defendant appealed to the district court, where a trial tvas had to a jury, resulting in a verdict and second judgment in favor of plaintiff. Defendant appeals.

<p>1 INSURANCE: Failure to Attach Copy of Application. A misrepresentation by insured of his age is not provable, when neither the application (which contains the misrepresentation) nor a copy thereof is attached to the policy, whether the policy he issued hy a domestic or a foreign company, and whether the action in which such proof is .sought to be made is at law or in equity. (Secs. 1741, 1819, Code, 1897.)</p> <p>.2 CORPORATIONS: Right of Foreign Corporation. Principle reaffirmed that a foreign insurance corporation may not transact business in this state unless with the consent of the state, and unless compliance is had with the laws of this state.</p> <p>3 CORPORATIONS: Foreign Corporations — “Doing Business in this State.” The act of a foreign corporation in soliciting insurance in this state, of a citizen of this state, and delivering the policy in this state, constitutes a “doing (of) business in this state.” (Secs. 1741, 1819, Code, 1897.)</p> <p>4 INSURANCE: Failure to Attach Copy of Application. Failure to attach an application for insurance, or a copy thereof, to the policy, works no invalidation of the policy, but simply prevents the insurer from pleading, proving, or disproving such application or any part thereof, when the same bears on the validity of the policy.</p> <p>5 INSURANCE: Understating- Age — Amount Recoverable. The provision of Sec. 1813. Code, 1897, as amended by Ch. 348, Sec. 11, 38 G. A. (1919), providing that, in case the insured has understated his age, recovery shall he limited to the amount which the premium paid would have purchased at the correct age, has application only to those cases wherein the fact of understating the age is legally provable by the insurer. In other words, if the copy of the application containing such “understating” of age, or a copy thereof, be not attached to the policy, then the fact of such “understating” of age is not legally provable, and Sec. 1813 has no application.</p>

<p>FRAUDS, STATUTE OF: Agreement to Procure Easement. An agreement to procure an easement is not within the statute of frauds. Evidence reviewed, and held to show that such was the contract.</p>

<p>Appeal from Mahaska District Court. — Chas. A. Dewey, Judge.</p> <p>Action for damages consequent on carrying goods to the wrong destination and delivering to a person other than consignee, resulted in judgment as prayed. The defendant appeals.</p>

<p>NEGLIGENCE: Nonattractive Nuisances. A plank shelf along the side of a cofferdam, adjacent to a bridge abutment which was securely inclosed by a substantial barbed wire fence, located in the open country and fairly removed from habitation, is not an “attractive nuisance” in such sense as to render the owner responsible for the death of an immature child, who, as a mere licensee, at the best, went upon the shelf and fell therefrom into the water.</p>

— -Hubert Utterback, Judge. Action at law by the Overland Sioux City Company,, Incorporated, against R. J. Clemens; and another action at law by the same company against Ashton Clemens was begun, and later consolidated. A demurrer on the ground that the facts stated in each division of each petition did not entitle plaintiff to the relief prayed, was sustained, and, as the plaintiff refused to plead over, judgment was entered, dismissing the petition; and plaintiff appeals.

— D. W. Hamilton, Judge. Action to partition real estate. The facts are stated in the opinion. Trial was had upon the issues presented by appellant and intervener. Decree adverse to his contention, and he appeals.

<p>Appeal from Polk District Oow't. — Joseph E. Meyer, - Judge.</p> <p>The accused was convicted of having owned or kept intoxicating liquors, with intent to sell the same in Polk County. She appeals.</p>

— D. W. Hamilton, Judge. Action to recover for the value of services claimed to have been rendered under an alleged oral contract. There was a verdict and judgment in the court below for plaintiff, and defendant appeals.

— H. B. Boies, Judge. Action on certain promissory notes, aided by issuance and levy of writ of attachment. Memorandum of filing of bond was not entered in appearance docket, and on that ground intervener prayed in his petition that the attachment be dissolved, and moved that the levy thereof be discharged. On hearing, the court dismissed the petition of intervention, and overruled the motion to discharge the levy. The intervener appeals.

<p>Appeal from Pollc District Cowrt. — Hubert Utterback, Judge.</p> <p>Ti-ie plaintiff brings this action at law under the Federal Employers’ Liability Act, to recover damages for personal injuries alleged to have been suffered by him by reason of the defendant’s negligence. On trial to a jury, there was a directed verdict and judgment for the defendant, and the plaintiff appeals.</p>

<p>Appeal from Johnson District Court. — R. G. Popi-iam, Judge.</p> <p>Action to recover damages for malpractice. Opinion states the facts. Judgment and verdict for the plaintiff. Defendant appeals.</p>

— C. H. Kelley, Judge. The appellee, the sendee of an interstate telegraph message, obtained verdict and judgment for $250 on account of alleged negligence in failing to deliver said telegram. The appellant contends that permitting this recovery was violative of valid contract limitations, under which there was no right to recover beyond a return of the amount paid for transmitting said message, and, in any event, no right, to recover more than $50.

— J. I). Wallingford, Judge. This is an appeal from the judgment of the district court in a certiorari proceeding, whereby an order of the civil service commission of the city of Des Moines, confirming the discharge of a policeman, was annulled. From the judgment, the defendants have appealed.

<p>Appeal from Page District Court.- — J. B. Rockafellow, Judge.</p> <p>Suit in equity for a partnership accounting. There was a decree for the plaintiff, and defendant has appealed.</p>

<p>APPEAL AND EB.ROB,:. Estoppel by Taking Benefit of Decree. A litigant who, on one distinct cause of action, prays for several different kinds of relief, and is .awarded a decree for some of the relief asked, and .thereupon avails himself of the benefits of such granted relief, may not thereafter appeal from that part of the decree ■ denying relief. So held -where a' landlord plaintiff, being granted an injunction against the unlawful use of premises by the .tenant, availed himself of the findings therein as a basis for an action, of 'forcible, entry and detainer, and thereafter attempted to appeal'from .that par.t of the decree which denied his prayer for a cancellation of the lease. (Sec. 4113, Code, 1897.) . - ■■</p>

— Joseph J. Clark, Judge. Action to recover damages on account of alleged malpractice in the treatment of plaintiff’s fractured leg. Trial to a jurj'-, verdict and judgment for plaintiff for $500. Defendant appeals.