Volume 191 — Iowa Reports

<p>MORTGAGES: Absolute Deed as Mortgage. An absolute deed, honestly obtained on a fair and approximately adequate consideration, ■with a naked option to vendor to repurchase, will not be held'to be a mortgage, even though the only consideration for the deed is money loaned by grantee to grantor, when it appears that the parties mutually intended the absolute deed to act as a satisfaction of the said loan and of a former deed admittedly given and held as a mortgage.</p>

<p>Appeal from Linn District Court. — Milo P. Smith, Judge.</p> <p>The appeal is by the plaintiff. She complains that the allowance of alimony to her and the provision for the support of the children of the parties are both inadequate. —</p>

<p>Appeal from Polk District Court. — Joseph E. Meyer, Judge.</p> <p>This is an appeal by plaintiffs, or objectors, from the action of the district court in overruling appellants’ objections to paving assessments, and in confirming the assessment made by the city council. The case was tried as in equity. The plaintiffs appeal. —</p>

— E. M. MoCall, Judge. The defendant was convicted of tbe crime defined by Section 4790, Code Supplement, 1913, viz.: of having burglar’s tools or implements in his possession, with intent to commit the crime of burglary. He appeals. —

<p>Appeal from, Samson District Court. — A. B. ThoRNEll, Judge.</p> <p>Plaintiee has verdict and judgment for alleged damage to his crops and alleged depreciation of the value of his land caused by overflow waters, charged to be due to negligent conduct on part of defendant. Defendant appeals. —</p>

<p>Appeal from Harrison District Court. — George W. Cullison, Judge.</p> <p>Action in the name of Francis Chambers, father and next friend of his minor children, Mabel and Florence Chambers, against the members of the school board of the Independent School District of Missonri Yalley and L. F. Smylie, superintendent of said schools, to enjoin the collection of tuition for the attendance of said minors at the high school in said district. The court dismissed the petition, and plaintiffs appeal. —</p>

— Henry F. Wagner, Judge. Action by Mary E. Hess, plaintiff, claiming to be the widow of James O. Hess, who died intestate on January 25, 1919, by virtue of a common-law marriage, to establish her dower interest in his estate. The court below found that plaintiff was not the widow of James 0. Hess; deceased, and was not entitled to a distributive share. Plaintiff appeals. Facts in the opinion.—

<p>ASSAULT AND BATTERY: Civil Liability — “Pitchfork” as Deadly Weapon. A pitchfork used solely “as a club ancl with a side motion’’ is not a deadly weapon per se. It follows that the court need not— at least not in the absence of a request — instruct that it is unlawful for a person assaulted to use a deadly weapon unless assault is made with sueh a weapon or in such manner as would cause a person of ordinary courage to believe that he was in imminent peril of losing his life or suffering great bodily injury.</p>

— CháRles A. Dewet, Judge. This action involves the construction of the will of tlie said decedent, and tlie determination of whether or not the' widow of said decedent elected to accept the provisions of said will.—

<p>Appeal from Wright District Court. — H. E. Fry, Judge.</p> <p>Will contest. Appeal from verdict and judgment thereon, admitting will to probate. —</p>

<p>CONSTITUTIONAL LAW: Construction — Estoppel to Question Constitutionality of Statute. A party may not, in order to secure a benefit, cause proceedings to be had under a statute, and, after securing the benefits, assert the unconstitutionality of the statute. So held where parties petitioned for the selection of trustees to repair a drainage improvement, and later questioned the constitutionality of the statute.</p>

— EaRL PeteRS, Judge. Plaintiees, and Roadifer & Roadifer and H. L. Robertson, attorneys for plaintiffs, appeal from the judgment of the court below dismissing certain claims filed by them against the guardian and estate of Katbryn Paulson, and against Katbryn Paul-son, appellee herein.

<p>Appeal from Page District Court.- — Earl Peters, Judge.</p> <p>Aotion for the foreclosure of a mechanic’s lien claimed for work done in repairing a roof. Defendants filed a counterclaim for damages caused by reason of plaintiff’s negligence in doing the work. The court awarded defendants damages in the sum of $150, and allowed plaintiff the balance of its claim, and foreclosed plaintiff’s mechanic’s lien for said amount. Plaintiff appeals. —</p>

<p>BILLS AND NOTES: Actions — Stopping Payment on Check. Stopping payment on a check subjects the drawer to instant suit thereon, irrespective of the transaction out of which the cheek arose.</p>

— Ralph Otto, Judge. PROCEEDINGS in quo warranto to determine the legality of 'the organization of the consolidated independent school district of Millersburg, Iowa County. Relators appeal from the ruling of the court below, sustaining a demurrer to the petition.—

— Earl Peters, Judge. This is an action at law for injuries claimed to bave been suffered by tbe plaintiff by reason of being struck by an automobile driven by tbe defendant. Tbe jury returned a verdiet in favor of tbe plaintiff, and tbe defendant appeals. —

<p>Appeal from Washington District Court. — JOHN F. Talbott, Judge.</p> <p>Suit in equity, to establish a credit of $2,000 on certain notes executed by plaintiffs as payers to Ed Klopfenstein as payee, which notes are held by the defendant as collateral security for an indebtedness owing by Klopfenstein to the defendant bank. There was a decree below dismissing the petition; also, rendering judgment against the plaintiff on a counterclaim for $1,000. The plaintiff lias appealed. —</p>

<p>JUDGMENT: By Confession. — “Full Faith and Credit” Clause. Judg-1 ments rendered in a foreign state under a legally authorized warrant of attorney, which provides that “any attorney of any court of record” may confess judgment against the maker, will be given “full faith and credit” in the courts of this state.</p> <p>JUDGMENT: Action on — Nonallowable Counterclaim. In an action on 2 a judgment, defendant, in the absence of any plea of fraud in the procurement of the judgment, may not plead, as a set-off or counterclaim, the invalidity of the original obligation upon which the judgment was rendered.</p> <p>JUDGMENT: Action on — -Allowable Defense. An action on a foreign 3 judgment is subject to the defense that the warrant of attorney on which the judgment was rendered was fraudulently obtained.</p>

<p>PAYMENT: Application — Failure to Give Definite Direction. A lender who makes a loan to a borrower and takes chattel security on certain property, on the assumption that a third party holds the borrower ’s prior note, secured on the same property, and who desires to retain control of the loan until the third party's obligation is released, must, in turning over the amount of the loan to the third party, definitely instruct such third party to’apply the money only on such obligation, or to return the money. Without such definite instruction, the third party may, if he holds no such note and security, apply the remittance on any obligation held by him against the borrower. So hold where the lender sent a draft to the third party for the full amount of the loan, with a letter stating that the draft was '‘in full payment” of the borrower’s note, “secured by 20 head of red steers,” and with a request that the uncaneeled note and a release of the mortgage be returned. The third party held no such security, and applied the draft on other indebtedness of the borrower. Sold, the application was proper.</p>

— O. D. Wheeler, Judge. Aotion to recover damages for injury to auto truck and contents thereof, caused by the alleged negligence of defendants. Directed verdict for defendants, and judgment entered against plaintiff for costs. Plaintiff appeals.

<p>APPEAL AND ERROR: Reservation of Grounds — Absence of Rulings. 1 Objections without rulings thereon, present no ground for review on appeal.</p> <p>WITNESSES: Transactions With Deceased — Inferable Pact. Principle 2,8 reaffirmed that a party to an action against the personal representatives of a deceased is not incompetent to testify to nonprohibited facts from which, by inference, other facts may be found, even though the faet found by inference is a fact to which the witness is not competent to testify directly. Held that such a witness might testify that she placed the subject-matter of an alleged gift "in a suit ease, in the presence of ’ ’ deceased.</p> <p>APPEAL AND ERROR: Estoppel to Allege Error. One may not predi-4,6 cate error on the overruling of his objection to the introduction of testimony, when he later permits the introduction of the identical testimony, without objection.</p> <p>WITNESSES: Transactions With Deceased — Handwriting. A party to 5 an action against the personal representatives of a deceased is a competent witness to testify to the handwriting of deceased.</p>

— R. G-. Popham, Judge. This is a will contest. The testatrix was Mary J. Moore, who died in March, 1919, at the age of about 85 years. The grounds of the contest were alleged undue influence and mental incapacity of the testatrix. The trial court submitted the ease to the jury upon the sole issue of mental incapacity. There was a verdict for the contestants. Thereafter, the trial court sustained the proponent’s motion for a new trial.

<p>EVIDENCE: Declarations Against Interest. The written declaration of 1 the holder of the legal title to real estate, to the effect that a named party was in possession under an agreement under which he should take absolute title upon’ the death of the declarant, is competent evidence to prove such agreement.</p> <p>DEEDS: Evidence — Impeachment of Deed. A grantor may not im-2 peach his deed by subsequent declarations, even though the deed was without consideration.</p> <p>QUIETING- TITLE: Plaintiff in Possession. A deed will not be set 3 aside on a naked showing that defendant grantee knew of plaintiff’s possession, and could easily have learned that plaintiff was asserting title. Plaintiff must distinctly prove his allegations as to the terms of his possession.</p>

— E. M. McCall, Judge. The defendant appeals from a conviction of murder in the second degree. The material facts are stated in the opinion.- — ■

<p>JUDGMENT: Conclusiveness — Election for Incompetent Surviving 1 Spouse. One wlio applies for and secures from tlie court an order to the effect that an incompetent surviving spouse shall take a distributive share, instead of a life estate under the will, may not thereafter question the legality or correctness of such election. (Sec. 3376, Code Supp., 1913.)</p> <p>WILLS: Distributive Share (?) or Life Estate (?) — -Election Relating 2 Back. An election by the court for an incompetent surviving spouse establishes the status of the widow in relation to her husband’s estate from the date of the testator’s death. (Sec. 3376, Code Supp., 1913.)</p> <p>DESCENT AND DISTRIBUTION: Undivided Distributive Share — Li-3 ability of Cotenant for Rent. An heir who, with the surviving spouse, is rightfully in possession of property in whieh the spouse has an undivided, distributive share, is not liable to the spouse for rent, until such share is set off to the spouse.</p> <p>TENANCY IN COMMON: Liability of Cotenant for Rent. A tenant 4 in common, in possession of the undivided property, who in no wise denies the right of his eotenant to also take possession, is not liable for rent to the tenant out of possession. (See 37 G-. A., Oh. 27, for new statute.)</p> <p>DESCENT AND DISTRIBUTION: Distributive Share — When Defeated 5 by Conversion. An heir may not defeat the widow’s application to have her distributive share set aside, by showing that the widow has converted to her own use moneys and credits of the estate in excess of the value of her said share, unless he shows that he had an interest in such moneys and credits.</p> <p>PAYMENT: Voluntary Payments — Recovery. A tenant in common, in 6 possession, who voluntarily pays rent to his eotenant, also in possession, may not recover such payments on the naked plea that Tie did not understand his rights.</p> <p>DESCENT AND DISTRIBUTION: Distributive Share — Collection of 7 Rents — Accounting. A widow who for many years collects the rents for the devised property, manifestly with the understanding on the part of herself and all the heirs that she was a life tenant of such property, and then has her relation to the property changed to that of an owner of an undivided distributive share, will be held to have sustained the latter relation to the property from the death of testator, and, in the setting off of the distributive share, must account to the heirs for such rents.</p> <p>LIMITATION OF ACTIONS: Tolling Statute by Inconsistent Conduct. 8 A widow who has, for 17 years, collected rents for devised property on the assumption that she was entitled thereto under a life estate therein, but who, thereafter, on her own application, was adjudged to have taken an undivided distributive share in the property, will not be permitted, in an action to set aside such share, to interpose these 17 years as a bar to the demand of the heirs that she account to them for the rents collected.</p> <p>TENANCY IN COMMON: Tenancy Implied, in Order to Avoid Statute 9 of Limitation. Where a widow, for more than 10 years, continues with the heirs in a joint occupancy of lands, without any application to set apart her distributive share, equity will imply a mutual agreement between her and the heirs for a tenancy in common, against which no statute of limitation runs.</p> <p>PARTITION: Allowable Counterclaim — Accounting in Probate. In par-10tition for the setting aside of the distributive share of a surviving wife, who was executrix of the estate, the heir may interpose a demand for a general accounting as to all estate matters, including an accounting for Tents collected for lands m which the wife had no distributive share. (See. 4240, Code, 1897.)</p> <p>DESCENT AND DISTRIBUTION: Distributive Share — Failure to Ac-11 count. The surviving wife’s claim to a distributive share may not be defeated by the naked plea that she has not made an accounting as executrix.</p> <p>PARTITION: Distributive Share — Establishment of Liens. An heir, in 12 an action by the surviving widow to have her distributive share set off, may, under a general prayer for equitable relief, have judgment for his interest in rents collected by the widow as executrix, and may have such interest made a lien on sueh distributive share.</p> <p>WILLS: Distributive Share — Accounting for Rents. A surviving widow 13 who has acted as executrix of the estate will be charged, in an action by her to set off her distributive share, not with the amount of the rental value of the real estate, but with the amount actually collected by her, less taxes and maintenance charges imposed on her by the will.</p> <p>PARTITION: Distributive Share — Lien for Improvements. Where the 14 cost of improvements made by the heir was made a charge solely against the widow’s distributive share, held that it should be made against the common property.</p> <p>INTEREST: When Nonchargeable on Trust Funds. Interest, prior to 15 suit brought, will not be exacted on rents collected by a surviving widow, which became a trust fund in her hands, (1) when the collections were made with the full acquiescence of the heir, (2) when the widow never trafficked therein, and (3) when the heir never made demand therefor, until the final accounting.</p> <p>DESCENT AND DISTRIBUTION: Distributive Share Including Build-16 ings. A widow’s distributive share will not necessarily be so set off as to include the building, when the record reveals the fact that she had allowed her strict stati tory right to expire by lapse of time, and was simply a tenant in common with the other heirs, and especially when the widow dies, pending suit, and her heirs are substituted as plaintiffs.</p>

<p>Appeal from Polk District Court. — Joseph B. Meyer, Judge.</p> <p>Aotion for damages consequent on a fall as plaintiff was about to alight from a street car, resulted in a directed verdict for defendant, and judgment thereon. Plaintiff appeals.—</p>

<p>SPECIFIC PERFORMANCE: Oral Contract With Possession and Part 1 Payment. An oral contract for the purchase of real estate, followed by possession and part payment by the purchaser, is specifically ' enforeible. Evidence held sufficient to show the contract and possession and payment thereunder.</p> <p>LIMITATION OF ACTIONS: Specific Performance of Oral Contract 2 For Realty. An action for specific performance of an oral contract for the purchase of realty (under which possession was taken and part payment was made) is an action “for the recovery of real property. ’ ’</p> <p>APPEAL AND ERROR: Reservation of Grounds — Waiver. A wife, 3 defendant in an action against her husband for specific performance of a contract for the conveyance of real estate, may not raise the point for the first time on appeal that she had never agreed to the contract.</p>

<p>WILLS: Revocation — Revocation by Codicil. A clearly granted life estate in realty, with remainder over to a named person, is not revoked by a codicil which, after granting additional rights to the life tenant, conveys to trustees all the real property of which the testator may die seized, with directions to sell and distribute the proceeds to legatees named in the will and codicil. It is held that the trustees took only that quantum of interest in the real estate which the purpose of the trust required, — that quantum which would permit the formerly clearly granted estates to stand.</p>

<p>Appeal from Wapello District Court. — F. M. Hunter, Judge.</p> <p>Aotion at law to recover an alleged commission for services by plaintiff under a written contract with defendant. Directed verdict for defendant, and judgment entered against plaintiff for costs. Plaintiff appeals. —</p>

<p>Appeal from, Story District Court.- — R. M. Wright, Judge.</p> <p>Aotion in equity to construe tbe last will and testament of S. J. Marvick, deceased; and on tbe ruling in favor of plaintiff in two particulars, defendants appeal. —</p>

— C. H. Kelley, Judge. Suit in equity to set aside an executory contract for the sale of land, on the ground of fraud and undue influence. There was a decree for the plaintiff, and the defendants appeal. —

— J. B. 'Wallingford, Judge. Aotion at law to recover from defendant $500 paid by plaintiff to defendant for a lot of land, which was not conveyed. Plaintiff claimed there was a shortage in the land, and in its petition elected to rescind. Five or ten days thereafter, defendant sold the tract to other parties, at the same price. The defendant claimed, among other things, that plaintiff had repudiated the contract, and therefore had no right to rescind.

<p>NEGLIGEECE: Jury Question: — Automobile Accident. Evidence and 1 instructions relative to an automobile accident reviewed, and held to properly present a jury question, on the issue of the negligence of the defendant and the contributory negligence of the plaintiff.</p> <p>TRIAL: Instructions — Copying Pleadings. Stating issues in the lan-2 guage of noneomplieated pleadings is not reversible error.</p> <p>TRIAL: Instructions — Sufficiency in General — “Proximate Cause.’’ 3 It is not neeessary for the court to use the term “proximate cause’’ every time the defendant’s alleged negligence is referred to in the instructions.</p> <p>HIGHWAYS: Law of Road — Wrong Side of Street. Instructions re-4 viewed, and held to fairly embrace the thought that a driver is not necessarily negligent because he may not be on the side of a street on which he is ordinarily required by law to travel.</p> <p>NEGLIGENCE: Instructions — Specific Items of Negligence. After the 5 court has fully and correctly covered the subject of negligence and contributory negligence, it is not error to refuse instructions which deal with the effect of specific items of evidence.</p> <p>TRIAL: Instructions — Refusal When Point Fully Covered. Instructions 6 are properly refused when the point is fully covered in other portions of the charge.</p>

— M. F. Edwards, Judge. Original petition to this court for a writ of certiorari to review tbe action of tbe district court of Iowa in and for Winnebago County, Hon. M. F. Edwards, Judge, in overruling tbe motion of tbe relator for change of venue to Polk County.—

<p>HIGHWAYS: Condemnation for Private Way — Existing Inadequate Way. An owner of land who has an inadequate and insufficient private way to his land may condemn an adequate and sufficient way, and it is no defense to the exereise of such right that a way other than the one sought to he condemned, might be bought from another party. So held where the existing way was only 10 feet wide, and passed over extremes of high and low lands.</p>

<p>INSURANCE: Death “While Engaged in Military Service.” Death 1 during the time the insured is in training at a government naval station, preparatory to being assigned to active duty in the navy in a war then pending, but from a disease then generally prevalent among all classes of people within and without the military and naval service, is not a death “while engaged in the military or naval service in time of war,’’ within the meaning of a policy of insurance exempting the insurer from liability.</p> <p>Arthur, J., dissents.</p> <p>PLEADING: Prayer as Basis for Judgment. A prayer (1) for reforma-2 tion, (2) for judgment on the reformed writing, and (3) for general equitable relief, authorizes judgment on the original writing, in case the court finds reformation is unnecessary.</p>

<p>MARRIAGE: Presumption — Burden of Proof. A presumption of valid-1 ity attends a consummated contract of marriage, — a presumption which, will be overthrown only by clear and convincing evidence. Evidence reviewed in detail, in a ease where the validity of a marriage was questioned on the ground that a foreign divorce was void, and held to establish the validity of said foreign decree and the consequent validity of a subsequent marriage, — the one in question.</p> <p>DIVORCE: Bad Paith of Innocent Party in Making Default. The fact 2 that one party to a marriage relation permits the other party thereto to seeure a divorce by default, at a time when the former party had a cause for divorce against the one securing the divorce, does not show such bad faith as will deprive the one making default from acting thereon and contracting a legal marriage. So held where the parties, at the time of the action, were residents of different states.</p> <p>DIVORCE: Alimony — Absence of Children — Life Expectancy. The 3 fact that there are no children, and that plaintiff’s life expectancy -is greater than defendant’s, is an element or circumstance which may be given some consideration in fixing alimony for plaintiff, the innocent party.</p> <p>DIVORCE: Alimony — $100,000. Evidence reviewed, and an award of 4 alimony in the sum of $100,000 approved.</p>

Appeal ftom Mahaska District Court. — Charles A. Dewey, Judge. Aotion against tbe defendant city for damages on account of injuries claimed to have resulted from a fall upon a defective sidewalk. The court instructed the jury to return a verdict for defendant, and plaintiff appeals from a judgment against him for costs. —

<p>Appeal from Wapello District Court. — Seneoa Cornell, Judge.</p> <p>Frederick H. Fiedler became a member of the defendant association in October, 1910, and continued in good standing until his death, in October, 1917. The petition is in two counts, one demanding recovery of an indemnity of $5,000, and the other for $500. The difference arises from conditions contained in the by-laws. Section 2 of Article VI thereof provides that:</p> <p>. “Whenever a member in good standing shall through external, violent and accidental means receive bodily injuries which shall independent of all other causes result in death within ninety days from the date of the receipt of said injuries, the beneficiary named in his application * * * shall be paid the sum of five thousand dollars.»”</p> <p>Section 6 of the same article declares that:</p> <p>“ (1) The association shall not be liable in any manner to any member or beneficiary for any indemnity or benefit for death, disability or loss resulting wholly or partially, directly or indirectly^ f^om * * # injuries inflicted by the insured upon himself, while sane or insane, whether resulting fatally or otherwise. Each of the foregoing conditions, causes or acts are exempted from all the provisions of these by-laws granting to members or beneficiaries thereof benefits or indemnity; (2) the association shall not be liable under the provisions of Sections 1, 2 and 3, of this article in excess of one tenth of the amounts therein provided for benefits or indemnity, for injuries or the results therefrom under any of the following circumstances, to wit, injuries resulting from the discharge of firearms where there is no eyewitness to the discharge except the member himself; (3) the association shall not be liable under provisions of Sections 1, 2 and 3 of this article in excess of one tenth of the amount therein provided for, benefits or indemnity, for injuries or the results therefrom under any of the following circumstances, to wit: injuries intentionally inflicted upon the insured by another person, injuries received while violating the law, injuries resulting from the discharge of firearms where there is no witness to the.discharge except the member himself; and (4) the association shall not be liable, under the provisions of Sections 1, 2 and 3 of this article in excess of one tenth (1/10) of the amounts therein provided for benefits or indemnities for injuries or the results therefrom from any of the following circumstances, to wit: injuries intentionally inflicted- upon the member by another person.”</p> <p>The cause was tried to a jury, and the court instructed that the evidence was without dispute that the insured “came to his death from a wound produced by the discharge of a bullet from a revolver, and that there was no eyewitness to the discharge of this revolver, except the deceased himself. ’ ’ The sole issue submitted was whether death was accidental or suicidal, and the jury found it to have been accidental, and returned a verdict against the defendant for $500, on which judgment was entered. The plaintiff appeals. —</p>

<p>Appeal from Shelby District Court.- — J. B. Rookaeellow, Judge.</p> <p>Aotion for damages consequent on alleged breach of covenant of' deed resulted in the dismissal of the petition. The plaintiff appeals. —</p>

<p>Appeal from Polk District Court. — George A. Wilson, Judge.</p> <p>Aotion at law for recovery of damag’es. Directed verdict and judgment for defendant, and plaintiff appeals. —</p>

<p>Appeal from Lee District Court. — W. S. Hamilton, Judge.</p> <p>Aotion to recover upon contract for services rendered by tbe plaintiff. The facts are sufficiently stated in the opinion. There was a judgment for the plaintiff, and defendants appeal.-—</p>

<p>Appeal from Shelby District Court.■ — Earl Peters, Judge.</p> <p>Aotion by claimant, appellee, to establish claim against the estate of Andrew Frederickson, deceased, for her services in the family of Frederickson, in caring for Frederickson and his wife, and performing household work. Trial to a jury. Verdict was rendered in favor of claimant. Defendant administrator appeals. —</p>

<p>Appeal from Woodbury District Court. — John W. AndeRSON, Judge.</p> <p>Aotion for damages for personal injuries resulting from an automobile collision upon a street intersection. There was a verdict for plaintiff, and judgment thereon for $6,708.40. The defendant appeals. —</p>

<p>Appeal from Linn District Court. — F. F. Dawley, Judge.</p> <p>ACTION at law to recover attorney fees. A demurrer to the petition was filed by two of the defendants, and was sustained by the court. The plaintiff, electing to stand upon his petition, has appealed. —</p>

<p>SPECIFIC PERFORMANCE: Inability to Definitely Determine Contract. Specific performance of a contract for the sale of real estate will not be decreed when the record demonstrates that the parties are in dispute as to the terms on which the land was to be sold, and the court, from such record, is unable to clearly and definitely determine the truth of the matters in dispute. So held where the undeterminable matter was a dispute as to the payment of interest on drainage taxes.</p> <p>Faville, J., dissents.</p>

<p>Appeal from Polh District Court. — Hubert Utterbaok, Judge.</p> <p>AotioN for divorce. Decree for plaintiff. Defendant appeals.</p>

<p>Appeal from Fayette District Court. — H. E. Taylor, Judge.</p> <p>Aotion for divorce. Decree for plaintiff, as prayed. Defendant appeals. —</p>

<p>Appeal from Dallas District Court. — Lorin N. Hays, Judge.</p> <p>The plaintiffs are the owners of four 40-acre tracts of land, included in a drainage • district known as No. 64, in Dallas County. The district having been duly established and the improvement completed, an assessment was levied upon the lands within the district, for the expense so incurred. The amount so levied upon the plaintiff’s property aggregated $5,833.26. To this assessment plaintiffs filed objections, alleging that the same was higher in proportion than the amount charged upon other lands similarly situated and similarly benefited, and greatly in excess of the benefits derived by said lands from the improvement, and was unjust and inequitable. These objections were overruled by the board of supervisors. From this order plaintiffs appealed to the district court, where the several appeals were consolidated and tried together.</p> <p>The court, having heard the evidence, confirmed the assessments, subject, however, to certain conditions hereinafter shown, and the plaintiffs again appeal. —</p>

<p>ABBEST: Conduct Provoked by Officer. An arrest is unlawful when 1 the arresting officer has no warrant, when no offense has been committed, and when the cause for arrest was provoked by the impertinent conduct of the officer himself.</p> <p>PRINCIPAL AND SURETY: Action on Bond — Burden of Proof. In an 2 action for false arrest, and on the arresting officer’s bond, conditioned “without fear, favor, fraud, or oppression to discharge all the duties *** required of his office by law and the ordinance of the said city,” the burden of proof rests on the surety to show that no law or ordinance required such a bond.</p>

<p>Appeal from Jones District Court. — F. 0. Ellison, Judge.</p> <p>Aotion on a note. Trial to a jury. Verdict and judgment for the defendant. Plaintiff appeals. —</p>

— J. W. Kintzinger, Judge. DEPENDANT was convicted of the crime of murder in the first degree, and sentenced to life imprisonment in the state penitentiary at Fort Madison. From this judgment he appeals.

— Milo P. Smith, Judge. Action for slander. The facts are fully stated in the opinion. There ivas a verdict and judgment for plaintiff in the court below for $5,000 against both defendants, who.appeal.

— Joseph E. Meyer, Judge. Notion brought under the Workmen’s Compensation Law by-Edith Zenni, plaintiff, surviving spouse of Charles Zenni, deceased, asking an award on account of injury sustained by Charles Zenni, resulting in his death, while in the employ of the defendant South Des Moines Coaí Company. —

<p>'TRIAL: Estoppel to Question Special Finding. He wlio secures tlie sub-1 mission of a direction to the jury to find specially on a given point, may not successfully ask the court to disregard the finding returned, even though the propriety of the original submission is debatable.</p> <p>MASTER AND SERVANT: Measure of Damages For Wrongful Dis-2 charge. A servant working solely on commissions on sales obtained at his own expense may not, when wrongfully discharged, recover any part of his probable commissions during the contract period, unless he shows what deductions should be made (1) for expenses and (2) for the value of his time.</p> <p>LIBEL AND SLANDER: Charge of Unfaithfulness to Employer — Effect. 3 A written, published charge that an employee has been guilty of dishonorable and unfaithful conduct toward his employer, of such a nature that such charge, if believed, would naturally injure the employee, and prevent him from securing employment, constitutes a libel per se, and casts upon the author of the charge the burden to overthrow three resulting legal presumptions, to wit:</p> <p>(1) That the charge was false.</p> <p>(2) That the author was actuated by malice.</p> <p>(3) That the one so assailed has been damaged in some amount.</p>

<p>MASTER AND SERVANT: Workmen’s Compensation Act — “Casual” Employment. One who is employed at irregular intervals of time, and for no stated time or compensation, to perform “odd jobs,” is a casual employee, within the meaning of the Workmen’s Compensation Act. So held as to one who was employed to clean out a room just vacated by the employer.</p> <p>Weaver, J., dissents.</p>

<p>TRIAL: Instructions — Testimony in Equipoise. Refusal to instruct as 1 to the effect of testimony in equipoise will not constitute reversible error, when the court correctly and fully instructs as to the burden of proof.</p> <p>TRIAL: Instructions — Harmless Inconsistency. One who has the bene-2 fit of a correct instruction on a subject-matter may not complain that, in later instructions, the court introduced inconsistent elements which did not render the edrreet instruction less favorable to the complainant.</p> <p>EVIDENCE: Competency — Customary Charges as Evidence of Value. 3 Evidence of the customary charges of brokers for services in the locality in question is competent on the issue of quantum meruit.</p> <p>EVIDENCE: Competency, Relevancy, and Materiality- — Claim as After-4 thought. Evidence tending to show "that a party’s claim was an afterthought is relevant and material.</p>

<p>A-ppeal from Ida District Court. — E. G. Albert, Judge.</p> <p>Applioation for the appointment of a guardian of the property of a foreign ward. A temporary guardian, appointed by the district court of Ida County, Iowa, for the said ward, appeared and resisted the application of the alleged foreign guardian for appointment by said court. A trial was had upon the issue so tendered, and the foreign guardian was appointed as guardian of the property of said ward in this state. The temporary guardian appeals. —</p>

<p>SALES: Failure to Inspect as Precluding Counterclaim. The rule that, 1 when goods are furnished under an executory contract as to quality, and such quality is readily discernible on inspection, the buyer’s failure to so inspect,'and his retention of the goods without objection, preclude a subsequently asserted counterclaim for damages, does not apply to a sale induced T>y false and fraudulent representations.</p> <p>TB.IAL: Instructions — Absence of Evidence to Justify. An instruction 2 to the effect that, if a buyer failed to inspect goods and discover their nonconformity to contract, he would forfeit his right to counterclaim for damages, is erroneous, when the applicable evidence manifestly demonstrates that no mere inspection would reveal such nonconformity.</p>

<p>WILLS: Conflicting Claims Under Devise and Oral Contract. A devise will not be set aside in favor of a claimant to tlie same property under an alleged oral contract unless the evidence is very clear and convincing. Evidence held insufficient.</p>

<p>Appeal from Polk District Court. — Hubert Utterbaoe, Judge.</p> <p>Action for damages by a purported purchaser of real estate against alleged agents who assumed to act as such, and as such to sell the land to the plaintiff; whereas, in fact, they lacked authority to make such sale. The same cause of action is set forth in the second count, with the additional allegation that the representations of the agents were made fraudulently, in that they knew that they were false when they made them. There was a trial to a jury and a verdict for the plaintiff and judgment entered thereon. The defendants appeal. —</p>

— D. W. Hamilton, Judge. Aotion at law to recover from defendants tbe amount alleged to be due to the plaintiff upon a promissory note. Trial to a jury. Verdict and judgment for plaintiff, and defendants appeal. —

<p>PRINCIPAL AND AGENT: Authorized Agent May Ratify Act of Unauthorized Agent. An agent who has authority to sell goods in the first instance may validly ratify the sale of said goods "by another agent who had no authority to make such sale.</p>

<p>HIGHWAYS: Obstructions — Trustee’s Power to Enjoin. Township trustees may maintain an action to enjoin an obstruction of its highway as actually located and used, even though such road is not, in fact, on the legally established line. In such action the legal boundary lines of the highway may not be adjudicated. (See. 1527-sl7, Code Supp., 1913.)</p>

<p>CUSTOMS AND USAGES: Gross Profits. In an action by a servant 1 to recover his compensation in the form of a certain percentage of the net profits, as per contract, evidence is admissible as to the custom which had prevailed in that particular store in former years in computing such profits.</p> <p>TRIAL: Instructions — Correct But Nonexplicit. Correct but nonex-2 plieit instructions are all-sufficient, in the absence of a request for greater elaboration.</p> <p>MASTER. AND SERVANT: Compensation — Evidence—Sufficiency. Evi-3 dence held to sustain a verdiet, in an action for compensation in the form of a contract percentage of the net profits of a business.</p>

<p>Appeal from Polk District Court. — George A. Wilson, Judge.</p> <p>Aotion at law to recover damages for personal injury. Verdict and judgment for defendant. Plaintiff appeals. —</p>

<p>BOUNDARIES: Conflicting Monuments and Field Notes. Established government monuments prevail over field notes, even when such monuments are wholly obliterated, provided the evidence is sufficient to identify the places where such monuments were originally located. If such monuments are wholly obliterated and incapable of relocation, resort must necessarily be had to the field notes. Survey record reviewed and confirmed in accordance with the holding of the trial court, even though not in harmony with the field notes.</p>

<p>DEEDS: Cancellation Because of Duress — Evidence. In an action by a 1 wife for the cancellation of her deed on the ground of coercion by her husband, evidence of the husband’s prior brutal treatment of his wife may be material.</p> <p>DEEDS: Cancellation — Mental Incompetency and Duress — Innocent 2 Grantee. When it is made to appear that a deed was executed because of the mental ineompeteney of the grantor, and of duress inflicted upon him, it is incumbent on the grantee, in order to avoid a cancellation, to show that he had no knowledge of such ineompe-teney and duress.</p>

<p>Appeal from Dubuque District Court.^ — D. E. MaguiRE, Judge.</p> <p>James F. McLaughlin, a resident of Dubuque, Iowa, died, July 24, 1916. After bis death, a written instrument, purporting to be bis last will and testament, was admitted to probate. Thereafter, in September, 1918, the plaintiff, a sister and heir of the deceased’s, brought this action at law, to contest the validity of the will on the alleged ground that, at the date thereof, the testator was mentally incompetent to make a valid will, and that the same was procured to be made by undue influence exercised over him by another sister, Bridget McLaughlin, a chief beneficiary of the instrument. There was a trial of the issues to a jury. At the close of the testimony, the court sustained the defendants’ motion for a directed verdict in their favor, sustaining the validity of the will, and judgment was entered accordingly. Plaintiff appeals. —</p>

<p>EVIDENCE: Presumptions — Force and. Effect of Presumption. It is 1 not error, in a civil ease, for the court to refuse to instruct that, on an issue involving the commission of erime, “a natural presumption of innocence exists,” and that such presumption “has the force of affirmative evidence.”</p> <p>EVIDENCE: Weight and Sufficiency — Circumstantial Evidence. An 2 allegation of fact may not be said to be proven by circumstantial evidence, unless the circumstances relied on are of such a nature and are so related that such fact is the only conclusion that can be fairly drawn from such circumstances. Applied on the issue whether an insured had willfully burned the insured property.</p>

<p>Appeal from Floyd District Court. — C. H. Kelley, Judge.</p> <p>The plaintiff charges defendant has converted described personal property, and should be made to respond to plaintiff in damages. He has verdict and judgment for $2,508.79. Defendant appeals. —</p>

<p>DIVOECE: Corroboration of Harsb Conduct.* Evidence of cruelty in 1 the form of harsh and persistent unkind conduct and, willful disregard of the feelings of the wife may be sufficiently corroborated by evidence tending to show a hostile and malicious spirit on the part of the husband against the wife.</p> <p>CONTINUAN CE: Insufficient Grounds. An oral motion for a eontinu-2 anee on the ground of the absence of a witness, unsupported by any showing of surprise, and apparently for the sole purpose of cross-examining sueh absent witness in the event that he was used as a witness, is properly overruled.</p>

<p>NEGLIGENCE: Jury Question. Evidence in a personal injury case 1 reviewed, and held to present a jury question on the issue of defendant’s negligence (1) in not keeping a proper lookout for persons on the track; (2) in operating the car at a dangerous rate of speed; and (3) in failing to stop the car, in view of deceased’s dangerous position.</p> <p>NEGLIGENCE: Contributory Negligence — Jury Question. Evidence 2 in 'a personal injury ease reviewed, and held to present a jury question on the issue of deceased’s contributory negligence in walking in the nighttime along a street and on the tracks of a street railway.</p>

<p>PLEADING: General Denial — Evidence Admissible. Under a general 1 denial of a contract as pleaded by plaintiff, defendant may testify as to his version of the contract. So held where plaintiff alleged that he was employed generally by defendant to find a purchaser for defendant’s -property, and. defendant, under a general denial, was permitted, not only flatly to deny the pleaded contract, but to testify that in no event was he to sell unless his wife consented thereto.</p> <p>TRIAL: Instructions — Basis for Applicable Instruction. Testimony ad-2 missible under the pleadings necessarily furnishes basis for applicable instructions.</p>

<p>WILLS: Election by Spouse — Nature of Evidence to Show,. The bring-1 ing of an action by a wife to enforce the provisions of her husband’s will in her favor is sufficient evidence of her election to take under the will.</p> <p>WILLS: Construction — Ambiguous Antecedent. A devise of a life 2 estate in realty to a daughter of testator’s, with remainder over to her heirs, with the added clause, “but she shall pay to my said wife, each year so long as she may live, $2.00 per acre cash,’’ construed, and, in view of the will as a whole, held to require the annuity to be paid so long as the wife lived, and not so long as the devisee daughter lived.</p> <p>WILLS: Construction — When Annuity Charge on Land. A devise of 3 realty, coupled with a proviso that the devisee shall pay an annuity to a named person during the lifetime of the latter, with no proviso that a breach in payment will forfeit the devise, will be construed as a charge on the land.</p>

<p>BANKRUPTCY: Jurisdiction of Courts — Setting Aside State Judgment. A judgment of the bankruptcy court that named property be freed from a preferential judgment of a state court is a finality, except on appeal in said bankruptcy proceeding, and precludes the state ceurt from in any manner readjudieating the right of the plaintiff in such preferential judgment to said property.</p>

<p>Appeal from Mills District Court. — Thomas Arthur, Judge.</p> <p>Aotion'in equity to reform a contract of insurance made with the defendant company to recover indemnity for the loss of an automobile by theft. Trial to the court and decree as prayed, and the defendant appeals. —</p>

<p>Appeal from Woodbury District Court. — J. W. Anderson, Judge.</p> <p>Aotion in equity for an accounting, and to impress a trust in favor of plaintiff on certain funds in tbe bands of tbe defendant. A demurrer to tbe plaintiff’s petition was sustained, and plaintiff elected to stand on bis petition, and appeals from tbe judgment dismissing tbe same. —</p>

<p>TRIAL: Instructions — Correct But Not Explicit. Correct but non-1 explicit instructions are sufficient, in tlie absence of a request for more detailed instructions. So held where plaintiff alleged no specific acts of negligence, but the court, in correct but general language, submitted all acts of negligence shown by the evidence, and where plaintiff made no request for greater elaboration.</p> <p>TRIAL: Instructions — Submission of Noncontroverted Fact. Plaintiff 2 may not complain of the submission to the jury of a noncontroverted fact, when the record reveals the further fact that plaintiff was, on other sustainable grounds, denied any recovery.</p> <p>TRIAL: Instructions — Repetition of Rule. Repetition of a rule of law, 3 while undesirable, does not, of itself, constitute reversible error.</p> <p>NEGLIGENCE: Jury Question. Principle reaffirmed that the issue of 4 contributory negligence must be submitted to the jury unless the facts are clear and undisputed, and the cause and effect so apparent to every candid mind that but one conclusion may fairly be drawn therefrom.</p> <p>HIGHWAYS: Law of Road — Presumption of Negligence. The pre-5 sumption of negligence which arises from the act of operating an automobile on the highway at a speed in excess of 25 miles per hour is applicable to both parties to a collision,- — to the defendant on the issue of his negligence, and to the plaintiff on the issue of his contributory negligence.</p> <p>HIGHWAYS: Law of Road — Speed Less Than 25 Miles. The operator 6 of an automobile may be guilty of negligence in operating his car at a speed which is less than that speed (25 miles) which generates a statutory presumption of negligence.</p> <p>TRIAL: Instructions — Omission Supplied in Other Instruction. An 7 instruction which is erroneous because of the omission of an essential element of the law may find ample cure in other instructions which clearly and definitely include such omitted element.</p>

<p>CONTRACTS: Consideration — Presumption From Writings and Re-1 citáis. An instrument which (1) purports to be a contract, (2) is in writing, and (3) recites a definite and valuable consideration, furnishes, in and of itself, substantive evidence that such instrument was, in fact, entered into on sufficient consideration; and the sole survivor who predicates rights thereon may stand on such showing, and demand that his opponent (1) negative the passing of any consideration at the time the instrument was executed, and (2), with due reference to the contract recitals, negative every reasonable hypothesis out of which a consideration for the contract might fairly be deemed probable.</p> <p>Contract by a mother that her property should pass, on her death, to her son and daughter-in-law reviewed, and held to quite clearly point to a remote conveyance by the son and wife to the mother of the son’s interest in his father’s estate, as a consideration for the mother’s contract.</p> <p>CONTRACTS: Consideration — Past Consideration. A transaction 2 which has apparently been fully closed may furnish ample consideration for a related instrument, executed many years later, when the recitals of the written instruments constituting the former transaction, aided by the illuminating and attending side lights, fairly justify the conclusion that such former transaction was not, in fact, closed, in the sense that the consideration therefor had been fully performed.</p> <p>DEEDS: Recital of Consideration. The recitals of a consideration in 3 a conveyance, with showing, however, that no consideration passed to the grantor at the time the conveyance was executed, when read in the light of the circumstances attending the conveyance, may quite clearly demonstrate that the conveyance was not intended as a gift.</p> <p>CONTRACTS: Consideration — Performance. Articles of copartnership 4 between a mother and son reviewed, and held, in view of the circumstances surrounding the parties, not to constitute a performance by the mother of the consideration imposed on her by a deed of conveyance by the son to the mother.</p> <p>CONTRACTS: Construction — Contractual (?) or Testamentary (?) 5 An instrument executed by a mother and son, which provides that the property of the mother shall remain her absolute property during her lifetime, and that the son shall have no right or claim thereto during such lifetime, but that the son, on the mother’s death, shall "inherit” such property as the mother "may die seized” of, will not be held to be testamentary when, from the instrument as a whole, it is manifest that the parties intended the instrument to be contractual.</p>

<p>Appeal from Des Moines Municipal Court. — J. E. Mershon, Judge.</p> <p>Suit by tbe plaintiff, as trustee in bankruptcy of tbe King Manufacturing Company, to recover from tbe defendant bank the sum of $800, paid to such bank within four months prior to tbe adjudication of bankruptcy. It is alleged that, when the defendant bank received such payment of $800, it bad good cause to believe its debtor to be bankrupt, and that tbe payment of such sum by tbe debtor constituted a preference, within tbe meaning of tbe Federal Bankruptcy Act. Tbe defense was a general denial. There was a trial to tbe court, and a judgment dismissing the petition.. Tbe plaintiff appeals. —</p>

<p>COSTS: Security for Payment — Erroneous Refusal. The erroneous re-1 fusal to order a bond for costs becomes quite harmless when plaintiff is wholly successful in his action.</p> <p>LIMITATION OF ACTIONS: Fraudulent Concealment ef Legacy. An 2 action to recover a legacy which has been fraudulently concealed may be brought at any time during the statutory period after the fraud has been discovered.</p> <p>ADVERSE POSSESSION: Hostile Possession — Trustee and Cestui Que 3 Trust. The possession of an executor is not adverse to the claims of a legatee.</p> <p>WILLS: Legacy — Action to Recover — Laches. Evidence reviewed, and 4 held insufficient to bar an action to recover a legacy, though the action was delayed some 20 years.</p> <p>TRIAL: Instructions — Submission of Non-jury Matter. Instructions 5 which inferentially submit a non-jury matter are harmless when the jury did not assume to pass thereon and the court itself made the proper order. So held as to a legacy’s being a charge upon certain land.</p>

— W. J. Springer, Judge. This is an action for damages for personal injuries. The trial court held that the city of Decorah was not liable for the negligence, if any, of the contractor, the other defendant, and directed a verdict in favor of the city. The case was submitted to the jury as to the construction company upon the allegations of negligence, as to allowing the steam to pop ofí, and negligently operating the traction engine.

<p>NEGLIGENCE: Contributory Negligence — Approaching Railway Crossing. The operator of an automobile who approaches a railway crossing with which he is perfectly familiar at a speed of some 8 miles an hour, and who, for g, distance of 75 feet from the crossing, has a practically continuous view of the track for 300 feet, and drives upon the crossing and is injured by a passing train, is guilty of contributory negligence. For an added reason, he is guilty of such negligence when it appears that he was given timely warning of the approach of a car, both by an occupant of the ear and by a flagman stationed at the crossing.</p>

<p>CHATTEL MORTGAGES: Insufficient Description. A description in 1 a chattel mortgage of “the crop from. 11 aeres of the following described property, wMch is planted to hay’’ is insufficient to impart notice to third parties.</p> <p>LANDLORD AND TENANT: Waiver of Lease Clause. Evidence held 2 insufficient to show a mutual cancellation of the provisions of a lease.</p> <p>DISMISSAL AND NONSUIT: Dismissal in Replevin. Whether plain-3 tiff in replevin who has obtained the property on the writ and sold the property may dismiss, quaere.</p> <p>DISMISSAL AND NONSUIT: Denial of Right — Indefinite Record. He 4 who complains that he was denied the right to dismiss must present a record from which it can be definitely determined at what particular stage of the proceedings he sought to exercise the right.</p> <p>TRIAL: Directed Verdict — Least Value Under Evidence. Plaintiff 5 may not complain of a properly directed verdict against himself when such verdict was computed on the basis of plaintiff’s lowest estimate of value and defendant does, not object.</p>

<p>Appeal from Polk District Court. — Joseph E. Meyer, Judge.</p> <p>Appeal by defendant from a conviction of the crime of murder in the first degree and sentence of life imprisonment.—</p>

<p>Appeal from Polk District Court. — Joseph E. Meyer, Judge.</p> <p>The defendant was convicted of the crime of robbery, and appeals. —</p>

<p>JUDGMENT: Conclusiveness — Persons Primarily Liable. One who is only secondarily liable for the results of an act of negligence must, when sued, notify the party carrying the primary liability to appear and defend, and, in the absence of such notice, the resulting record, covering the trial, judgment, and satisfaction thereof by the party secondarily liable, is wholly unimportant, in an action against the primary party for reimbursement, save as it may have bearing on the question of damages. Necessarily is this true when such offered record reveals the fact that the parties may have been joint wrongdoers.</p>

<p>MASTER AND SERVANT: Workmen’s Compensation Act. A servant may be acting “in the course of his employment,’’ and an injury to liim may be one “arising out of Ms employment,’’ even though., when he is so acting, and when he is so injured, he is technically outside the precise scope of his employment, by reason of the fact that a sudden and unlooked-for danger menaces his master’s property. So hold where the engineer of a pumping station attempted to remedy an unanticipated break in the crossarm on a pole carrying electricity.</p>

— Chas. A. Dewey, Judge. Action in equity by a mortgagor of real estate who bad, previous to the institution of proceedings to foreclose the mortgage executed by him, parted with title, to compel the purchaser at the execution sale on foreclosure to carry out an oral agreement made by him, at the time of such sale, to transfer his interest in the property to plaintiff, upon the payment of certain designated sums.

— H. F. WagNer, Judge. ActioN in equity, to cancel and set aside a contract for the purchase of real estate and a deed conveying a certain residence property to the defendant. Decree as prayed, and defendant appeals. —

<p>SCHOOLS AND SCHOOL DISTRICTS: Consolidated Districts — Notice — Newspaper of General Circulation. Notice of an election to vote on the question of the formation of a consolidated school district, to be composed of territory from more than one county, need not, when no newspaper is published within the proposed district, be published in a newspaper which has a “general” circulation in eaeh of the said different portions of territory which it is proposed to inelude within the district. The proposed district will be treated as a unit, and general circulation therein is all-sufficient.</p>

<p>Appeal from, Linn District Court. — F. 0. EllisoN, Judge.</p> <p>ACTION to cancel a certain contract on the ground of fraud and false representations, and for damages. A decree was entered, dismissing plaintiff’s petition, and plaintiff appeals.—</p>

— F. F. Dawley, Judge. Aotion brought to recover on an open account for asphalt fluxing oil furnished defendant. Defendant counterclaimed. Verdict for defendant and judgment thereon. Plaintiff appeals.

<p>EXECUTION: Sales — Sale Under Reversed Judgment. The measure of damages for selling property on execution on a judgment subsequently reversed on appeal is the reasonable value of the property on the date of levy, with interest to date of recovery.</p>

<p>NEW TRIAL: Inadequate Recovery — Nominal Verdict. If the evidence in an action for personal injury would justify the jury in denying plaintiff any damages, a verdict for plaintiff for $1.00 will not entitle plaintiff to a new trial on the theory that sueh verdict was a finding that plaintiff was entitled to recover, and that $1.00 was wholly inadequate. In such a case, a verdict for $1.00 will be treated as a verdict for defendant.</p>

<p>INJUNCTION: Interference with De Facto Officer. Injunction will 1 lie in favor of one who is in .possession of an office and who is at least a de facto incumbent thereof, to restrain interference with the discharge of the duties of the office, until the right to the office may be determined by quo warranto.</p> <p>INSURANCE: Eraternal Beneficiary Society — Officer (?) or Employee 2 (?) The incumbent of an official position in the organization and management of a fraternal beneficiary society who is designated by by-laws as a “supreme officer” is not a mere “employee,” though appointed by the board of directors.</p> <p>INJUNCTION: Directory Provision in re Entry on Calendar. The 3 statutory requirement that temporary injunctions shall be granted, in term time, only by an order entered upon the calendar after the petition is filed and so entered, is directory.</p>

— Lorin N. Hays, Judge. This is, in form, a suit in partition of real estate. The defendants denied the interest of the plaintiffs in such real estate. This issue was made by a demurrer to the petition. The demurrer was sustained and the petition dismissed. The plaintiffs appeal. —

— C. C. Biíadley, Judge. Defendant was indicted for the crime of keeping a gambling- house, and, before plea was entered, moved to set aside the indictment, for the reason that certain persons were present before the grand jury during the investigation of the cause, in violation of Section 5319 of the Code. Motion was overruled, and cause proceeded to trial. Verdict of jury finding defendant guilty, and judgment entered thereon. Defendant appeals.

— C. C. Hamilton, Judge. Verdiot of jury finding defendant guilty of the crime of receiving stolen property. Defendant entered a special plea of former jeopardy, by virtue of an acquittal on an indictment charging breaking and entering, based on the same transaction. From the ruling of the court on the special plea and the judgment entered on the verdict, defendant appeals. —

— George JepsoN, Judge. Defendant was indicted by the grand jury of Woodbury County for murder in the first degree. A change of venue was taken to Monona County, and upon trial he was found guilty by the jury of murder in the second degree. He was sentenced to imprisonment for life, and appeals. —

— E. B. Woodruff, Judge. DEFENDANT appeals from a judgment of conviction of the crime of murder in the second degree, sentencing him to imprisonment in the penitentiary at Fort Madison at hard labor for. 15 years. —

— J. W. ANDERSON, Judge. The appellant was indicted for the alleged larceny of an automobile, and upon trial to a jury was found guilty. From the judgment entered on the verdict, he appeals. —

<p>INTOXICATING- LIQUORS: Liquor as Evidence — Want of Identification. On the trial of an indietment for the unlawful sale of intoxicating liquors, it is reversible error to receive liquors in evidence, along with testimony tending to show the percentage of alcohol therein, unless it is first established: (1) That said liquors are the liquors sold by defendant; and (2) that, when such liquors were analyzed, they were in the same condition in which defendant sold them.</p>

<p>Appeal from Winneshiek District Court. — H. E. Taylor, Judge.</p> <p>Appeal from judgment imposing fine on defendant for illegal sale of intoxicating liquor. —</p>

— JOHN W. Anderson, Judge. By verdict of the jury and judgment of the court thereon, the defendant was convicted of robbery, and was duly sentenced therefor. He has appealed. —

— George Dunham, Judge. Aotion to quiet title in plaintiff against unknown claimants of 105 acres of land, including 8 acres which defendants John House and Anna House claim to own and defend. Facts appear in the opinion. —

— J. E. Williams, Judge. Action against both the maker and indorser on a promissory note.. There was a directed verdict for the defendants. Plaintiff appeals. —

— HubeRT Utterbaok, Judge. AotioN in equity to recover an amount equal to a special assessment of $359.49, with interest tbereon, and also an amount equal to tbe interest on a paving contract, which interest was not included in assessment certificates. Appeal from judgment in favor of plaintiff. Facts appear in the opinion. —

— C. N. Houck, Judge. Aotion for partition of real estate. Decree was entered, dismissing plaintiff’s petition, and sbe appeals. Tbe facts appear in tbe opinion. —

— P. C. Winter, Judge. Aotion at law, to recover from the defendant, Kirby, the amount of a. promissory note made by Ed L. Dryden and L. N. Cleveland to the order of J. T. Harrell, of which Kirby is alleged to have assumed payment. Kirby resists the demand thus made, on the ground that the alleged contract for the assumption of the debt was obtained from him by fraud. Verdict and judgment for defendant, and plaintiff appeals. —

— EaRL PeteRS, Judge. Suit to enforce specific performance of an alleged contract for the sale of land. On hearing, the petition was dismissed, and the plaintiff appeals. —

Appeal .from Taylor District Court. — P. C. WinteR, Judge. . Appeal by. plaintiff from an order overruling his motion, in Three divisions: To strike'certain portions of defendant’s answer, as being conclusions of law, redundant, immaterial, and surplusage; to make the answer more specific in certain respects; and to require defendant to separate the answer into counts or divisions. The trial court overruled the motion, and plaintiff appeals. —

— A. N. Hobson, Judge. Action in equity, in tlie name of the assignee of a judgment, to compel the clerk of the district court to set aside and cancel an entry satisfying a judgment, and to recover proceeds of said judgment in the hands of the clerk and the defendant bank, and for other general equitable relief. The facts are somewhat complicated, and are fully stated in the opinion.

<p>DIVORCE: Cruelty — Coarse and Vulgar Conduct. Evidence of coarse and vulgar conduct toward' a wife reviewed, and held to establish her right to a decree, notwithstanding a holding of the trial court to the contrary.</p>

— Ralph Otto, Judge. Aotion for damages against tbe defendant city for personal injuries caused by a defective sidewalk. A^erdict in favor of plaintiff in tbe sum of $3,500, which was reduced, by filing a remittitur, to $2,500, and judgment was entered accordingly. Defendant appeals. —

<p>Appeal from Pottawattamie District Court. — Ti-iomas Arthur, Judge.</p> <p>The opinion sufficiently states the case. —</p>

— E. B. Woodruee, Judge. Aotion in two counts: one for alienation of affections and one for criminal conversation. The answer alleged that' plaintiff and his wife had since been divorced, at the instance of the wife. A demurrer to the allegations of the answer was overruled. Plaintiff elected to stand on his demurrer, and judgment ivas entered accordingly, and plaintiff appeals. —

— W. G. Sears, Judge. Aotion to recover damages to a wheat crop, caused by an overflow of water due to an alleged failure on the part of defendants to erect dikes on certain parts of their land leased to plaintiff. Upon the conclusion of the plaintiff’s testimony, the court sustained defendants’ motion for a directed verdict, and entered judgment against plaintiff for costs. Plaintiff appeals. —

— E. M. McCall, Judge. ACTION in mandamus to compel the defendants to issue warrants in payment for the construction of a drainage ditch. The relief prayed for was denied, without prejudice to the right of the plaintiff to file an amendment upon quantum meruit. Plaintiff appeals. —

— C. H. Kelley, Judge'. Aotion to foreclose a real estate mortgage. Execution of the note and mortgage was admitted. Defendants set up a counterclaim, based on breach of the covenant of warranty in a deed made by plaintiff to Mary McCoy, and a deed made by Mary McCoy to defendant C. E. Carragher. Decree of foreclosure was entered, and judgment on the notes. Facts appear in the opinion. —

E. Taylor, Judge. AotioN in certiorari, to review the action of the judge of the thirteenth judicial district, entered in vacation, requiring certain affiants to appear for examination before the district court of 'Winneshiek County, Iowa. —

— J. J. Clark, Judge. ACTION by one mortgagee against another for the alleged conversion of the proceeds of the sale of the mortgaged property. Verdict for plaintiff, by direction of the court. Defendant mortgagee appeals. —

— Francis M. HuNTER, Judge. ACTION was instituted under tlie Workmen’s Compensation Law of Iowa by the dependent widow of Chas. A. Flint against his employer, the city of Eldon, and the Continental Casualty Company, its insurance carrier, to recover compensation for his death on February 3, 1919, resulting from injuries received, as alleged, on October 30, 1918.

— Osoar Hale, Judge. Action in equity, in which plaintiff seeks to redeem land under execution sale. Plaintiff also asked an injunction to restrain the sheriff and the administratrix from proceeding with the sale under the levy on the equity of redemption. A temporary injunction was granted. After a full trial, the trial court found for the defendants, dismissed plaintiff’s petition, and dissolved the temporary writ. The plaintiff appeals.—

— F. M. Hunter, Judge. The defendant, administrator of the estate of Evan Jones, deceased, appeals from the judgment of the district court allowing a claim made against such estate by the plaintiff. —

— F. 0. EllisoN, Judge. PlaiNtiee brought this action to recover a fund of $3,550 in the hands of defendant bank. The bank held the money under instruction to pay it to J. H. Miller, appellant, and Miller claims it. Appellants R. R. Bagley and A. W. McGregor make conditional claim to the fund. The court awarded the fund to plaintiff, from which decree this appeal is prosecuted. Facts appear in the opinion. —

<p>Appeal from Union District Court. — H. K. Evans, Judge.</p> <p>AotioN at law to recover $1,200 as commission or bonus for services by plaintiff in the sale of the defendant’s farm. Verdict of the jury finding for the plaintiff, and judgment entered accordingly. Defendant appeals. —</p>

— C. W. Vermilion, Judge. Aotion in equity by tlie lieirs at law of Peter G. Ballingall, deceased, praying that they be decreed to be the owners of the Ballingall hotel property in the city of Ottumwa. A demurrer to the petition was sustained, and judgment entered in favor of defendants for costs. Plaintiffs appeal. —

— Earl Peters, Judge. Aotion for alienation of affections. A verdict was directed in favor of the defendant Charles Holdorf, and plaintiff appeals. It appears from the record that a verdict was returned against the appellee Sophie Holdorf, and a motion for a new trial as to said defendant was sustained. No question is raised in regard to the case against Sophie Holdorf on this appeal. —

<p>BANKS AND BANKING: Presumption of Delivery of Certificate of 1 Deposit. Delivery of certificates of deposit to a wife may be inferred from the fact that the husband, in connection with a general purpose to make disposition of his property prior to his death, caused the certificates to be made payable to himself or to his wife, and that the wife was, after the death of the husband, in unquestioned possession of the certificates. (See Sec. 1889-b, Code Supp., 1913.)</p> <p>DEEDS: Fraud Unquestioned by Grantor. A conveyance which is un-2 questioned by a mentally competent grantor may not, during the lifetime of the grantor, be questioned by a prospective heir of the grantor.</p>

— James DeLand, Judge. 'The claimant, Ella M. Burgin, presented a claim against tbe administrator of her deceased husband’s estate for reimbursement of expenses incurred by her for attorney fees and medical testimony in an unsuccessful attempt on her part to establish the purported will of the deceased husband. Her petition was dismissed, and she has appealed. —

— H. K. Evans, Judge. Aotion on behalf of the administrator of the estate of Charles Emerson, deceased, for instructions relative to the distribution of property of the decedent testator, and to have certain provisions of the will construed.

— James DeLaNd, Judge. Fannie S. McAllister appeals from numerous orders of the probate court, including the approval of the executor’s final report and order for distribution. Sue A. McAllister, appellee, filed a cross-appeal from an order of the court affecting the distribution of life insurance. The material facts are recited in the opinion.- —

— James DeLand, Judge. Trial was had upon exceptions to a guardian’s report. Upon trial had, the trial court approved the report as to many items,approved the same in part as to many other items, and disapproved the same as to many others. The guardian was allowed credit for all items approved, and was charged upon such basis with the balance remaining in her hands. The appeal is by the guardian. —

— B>. M. Wrigitt, 'Judge. Action in equity, commenced by J. H. Salisbury, to restrain tbe defendant boards of supervisors from enforcing tbe collection of, and tbe defendant bank from paying, two checks for $5,000 each, drawn by Mm and payable to ‘ ‘ county auditor or order,” upon tbe Farmers State Bank of Dows, Iowa, and duly certified by said bank.

<p>RELEASE: Ineffectual Impeachment. A release and settlement of an unliquidated claim, entered into by one who, while confined to his bed, was in full possession of his faculties, and after ample legal advice and consultation with relatives and friends as to the advisability of a settlement, may not be overthrown by a showing- that the agent who secured the settlement objected, when the settlement was made, to the presence of attorney for claimant, and enlarged on the possible duration of the litigation in ease no settlement was made.</p>

<p>Appeal from Harrison District Court. — Earl Peters, Judge.</p> <p>Aotion upon an account. Verdict for plaintiff. The court suspended the entry of judgment on the verdict, and.plaintiff appeals. —</p>

<p>REFORMATION OF INSTRUMENTS: Mutual Mistake in re Mortgages. A reformation of a land contract will be granted on a clear allowing that an assumption of a mortgage of $6,500 at 6 por cent was a mutual mistake, in that what was really intended was the assumption of two mortgages, one for $6,500, at 5% per cent, and one for a sum equal to % of 1 por cent on said amount.</p>

<p>Appeal from Polk District Court. — HubeRt Utterback, Judge.</p> <p>Claim under the Workmen’s Compensation Act. The industrial commissioner denied the claimant any relief. The district court reversed the action of the commissioner, and from the decisions so rendered, this appeal is prosecuted. —</p>

<p>TAXATION: Unauthorized Assessment by County Treasurer. An assessment of bank stoek under See. 1322, Code Supp., 1913, -which has passed the boards of review, and remains unchallenged during the current year by tlie county auditor, under See. 1385-b, Code Supp., 1913, becomes a finality. In other words, even though the assessor fails to eorreetly compute the value of the stock from the statement furnished by the bank, in that he omits to take into consideration certain elements of value which would have enhanced the value of the stock, nevertheless the values so omitted are not property which the county treasurer may assess, under See. 1374, Code, 1897, as property “withheld or overlooked.’’ Especially is this true when it appears that the first-entered tax has been paid.</p>

<p>MUNICIPAL CORPORATIONS: Pensions — Resignation ’in Case of 1 Disability. A policeman who, while in service] becomes mentally or physically permanently disabled from performing his duties, is entitled to the statutory pension, and it is immaterial whether he leaves the service by resignation or by retirement by the governing board. (See. 932-n, Code Supp., 1913.)</p> <p>MUNICIPAL CORPORATIONS: Pensions — Service bj£ Pensioner. A 2 policeman who, by reason of mental or physical permanent disability, retires from the service by voluntary resignation, and enforces his right to a pension, may be required to 'perform such light police service as may be within his capabilities. (See. 932-n, Code Supp., 1913.)</p>

<p>Appeal from Des Moine.s Municipal Court. — W. Gr. Bonner, Judge.</p> <p>Action for damages to plaintiff’s automobile in a collision between said automobile and a street car operated by the defendants. Tried to the court without a jury. Judgment for plaintiff, and defendants appeal. —</p>

<p>Appeal from Crawford District Court. — E. G. Albert, Judge.</p> <p>Action to quiet title. Decree in favor of defendants James and Emma Coleman Rollins. Plaintiffs appeal. —</p>

<p>Appeal from Taylor District Court. — Homer A. FulleR, Judge.</p> <p>Suit by plaintiff against her former husband, asking a de-eree for alimony supplementary to her decree of divorce obtained by her in Arkansas, wherein no alimony was allowed. She also prayed an allowance for the support of a minor child of the marriage. Upon motion of the defendant, the allegations of the petition upon which plaintiff predicated her claims for allowance of alimony to herself were stricken. Plaintiff appeals. —</p>

<p>Appeal from Harrison District Court. — Earl PbteRS, Judge.</p> <p>ACTION to enjoin defendants from issuing and selling bonds of the consolidated independent school district, on the ground that the election at which defendant directors were chosen was void, because such election was held by two judges instead of three. Injunction was denied, and plaintiff appeals. —</p>

— W. G. Sears, Judge. Aotion in equity to enjoin and restrain defendant from maintaining an alleged liquor nuisance. Decree was entered upon default, which, upon motion of defendant, was vacated and set aside by the trial court. From said ruling, plaintiff appeals.

<p>Appeal from Hamilton District Court. — R. M. Wright, Judge.</p> <p>Aotion ou a promissory note executed by the defendant to plaintiff. Verdict and judgment for the defendant for costs. Plaintiff appeals. —</p>

<p>MALICIOUS PROSECUTION: Probable Cause per se. Evidence held to conclusively show the existence of probable cause on the part of a prosecutor in causing an arrest for willful trespass on property held by cotenants.</p> <p>Stevens and Faville, JJ., dissent.</p>

<p>Appeal from Palo Alto District Court. — Jajaes DeLand, Judge.</p> <p>Action to recover commission for finding a purchaser for defendant’s farm. Under direction of the court, a verdict was returned for defendant. Plairitiff appeals. —</p>

— W. G. Seaes, Judge. ACTION in equity, to enjoin defendant from practicing medicine. Decree for defendant, dismissing plaintiffs’ petition on the merits, after trial. Plaintiffs appeal. —

<p>DEEDS: Validity — Mental Incompetency. Evidence relative to the mental competency of an aged and infirm grantor reviewed, and held not to present such clear and satisfactory showing of incompetency as wonld justify the setting aside of the deed.</p>

<p>Appeal from Des Movnes Municipal Court.- — W. .G. Bonner, Judge.</p> <p>Action to recover damages sustained by destruction by fire of a portion of a crop of growing cherries. The cherries were growing in an orchard situated on land adjoining ground occupied by defendant’s gasoline filling station. The filling station was consumed by fire, and the heat and flames destroyed the cherries. The case was tried to the court with a jury. Verdict in favor of plaintiff for $159.12 was returned, upon which judgment was entered. Defendant appeals. —</p>

<p>Appeal from Pottawattamie District Court. — Thomas ARTHUR, Judge.</p> <p>Action in equity to enjoin the maintenance of a railway embankment across plaintiff’s lands, causing surface water to accumulate, and for damages to growing crops. The injunction prayed for was denied, and the plaintiff was awarded damages, and from such award the defendant appeals. —</p>

<p>Appeal from Harrison District Court, — E.. B.. 'WoodRuee, Judge.</p> <p>Appeal from tlie establishment of a subdrainage district.—</p>

<p>Appeal from Plymouth District Court. — William Hutchinson, Judge.</p> <p>Action at law. The opinion sufficiently states the case. From a judgment dismissing its petition the plaintiff appeals.—</p>

<p>Appeal from Monona District Court. — W. G. Sears, Judge.</p> <p>Action to recover damages for personal injuries caused by the alleged negligence of the defendant company while plaintiff was in its employ. Defendant pleaded that both plaintiff and defendant were working under the terms and provisions of- the Workmen’s Compensation Law of Iowa, and that, therefore, the district court had no jurisdiction of the parties or the subject-matter. This defense was overruled, and cause submitted to the jury. Verdict finding for plaintiff in the sum of $4,500, and judgment was entered accordingly. Defendants appeal. —</p>

<p>Appeal from Woodbury District Court. — John W. Anserson, Judge.</p> <p>Notion by tbe lessee of a building to recover damages of tbe lessor, for tbe value of a stock of merchandise consisting of drugs, paints, and oils, wbieb, it is charged, was totally destroyed as tbe result of the negligent manner in which the lessor caused certain repairs and alterations to be made upon the leased premises. There was a verdict in favor of plaintiff for $71,-532.74 and interest. Defendant appeals from the judgment entered thereon. The material facts are stated in the opinion.—</p>

<p>OFFICERS: Noncreation of Office. A' legislative act which provides 1 for an additional district court judge does not create an office.</p> <p>OFFICERS: Existence of Vacancy. A vacancy in office occurs instanter 2 upon the passage and approval of a legislative act which authorizes the governor to appoint an additional district judge in a named district.</p> <p>CONSTITUTIONAL LAW: Increase of Salary of Judges — Appoin-3 tees. The constitutional prohibition that the salary of judges of the district court shall not be increased ‘ ‘ during the term for which they shall have been elected,” applies to judges appointed by the governor to fill vacancies, as well as to those elected by the people. (Const., Art. 5, See. 9.)</p> <p>CONSTITUTIONAL LAW: Increase of Salary of District Judge. The 4 constitutional prohibition that the salary of a judge of the district court shall not be increased “during the term for which he shall have been elected,” is not violated by a salary-increasing act passed by the assembly and approved by the governor prior to the passage, approval, and publication of the act under which the judge is appointed, even though the salary-increasing act did not become effective until a later date, — July 4th, following.</p> <p>STATUTES: “Law” With Effectiveness Postponed. A legislative aet 5 becomes a law instanter upon its due passage and approval by the governor notwithstanding the fact that the date when it becomes effective is postponed.</p>

— E. M. McCall, Judge. Action upon five promissory notes for $200 each. The answer admitted the execution of the notes, but set up a counter-<4 aim for damages, to which plaintiff interposed a demurrer, which was sustained. Defendant refusing to plead further, judgment was entered against him for costs, and he appeals.—

— M. F. EdwaRds, Judge. The defendant was convicted of a violation of Chapter 198 of the Acts of the Thirty-eighth General Assembly, which prohibits the use of any language other than English, in teaching secular subjects in the public or private schools of this state. Prom such conviction and sentence thereon, this appeal is prosecuted. The opinion states the facts. —

<p>Appeal from Des Moines Municipal Court. — T. L. Sellers, Judge.</p> <p>Action at law to recover upon defendant’s note or agreement in an application for insurance to pay premium. Plaintiff claims that $90 is due. Defendant alleges that the consideration for the note has wholly failed, for that the application was never accepted by a delivery of the policy to him. By way of counterclaim, defendant says that, if the policy was in force, insuring him against loss of his crops by hail, then he is entitled to recover, from the plaintiff $500 for loss of crops: $150 for loss in July and $350 in August. He alleges that he gave proofs of loss within the proper time by letter to the plaintiff, and that plaintiff waived any other or further proofs. These matters were all appropriately answered by plaintiff in reply. Trial to a jury. At the close of the evidence, each party moved for a directed verdict. Defendant’s motion was overruled, and plaintiff’s sustained; and verdict and judgment were rendered in favor of plaintiff for the $90, with interest. The defendant appeals. —</p>

— W. G. SeaRS, Judge. Notion to enjoin the maintenance of a nuisance, under the so-called “Red Light” law. Decree was entered, granting partial relief, as prayed for in the petition. Plaintiff appeals.—

— George W. Wood, Judge. Action to recover damages for personal injuries. Verdict of the jury and judgment for plaintiff. Defendants appeal.—

— H. S. Dugan, Judge. Aotion for a writ of mandate to compel the officers of the Independent School District of Casey, Iowa, to execute and deliver to the plaintiff a diploma certifying her graduation on May 30, 1918, from the Casey high school in said district, and to execute ánd deliver. to her a certified copy of her scholastic grades during her four years of attendance in said high school.

— C. W. Vermilion, Judge. Action by the administrator, to sell real estate alleged to belong to Guy N. Warner, deceased, in order to pay debts. The cause was transferred to equity, and there was a decree for plaintiff, as prayed. Appellant was denied the relief asked by her, and she appeals. —

— SeNECA CORNELL, Judge. ActiON at law for damages on account of personal injury. Tbe jury returned a verdict for defendant, which, on plaintiff’s motion, was set aside, and new trial ordered. Defendant appeals.

— J. W. Anderson, Judge. Aotion at law upon a contract of guaranty. There was a directed verdict and judgment for plaintiff, and defendant appeals. The facts are sufficiently stated in the opinion. —

— D. M. AndeRson, Judge. ActioN in equity, to cancel certain notes 'and a real estate mortgage securing same, executed by tbe plaintiff to defendant insurance company, and assigned to Van Evera & Company. Tbe loan of $2,500 upon its receipt by one Wilson, alleged to be the agent of the defendants, was converted by tbe said agent to bis own use. Upon tbe finding that Wilson was the agent of plaintiff, the petition was dismissed at plaintiff’s costs. Plaintiff appeals. —

— E. G. Albert, Judge. Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals. For former opinion, see 173 N. W. 882.

<p>EXECUTORS AND ADMINISTRATORS: Power to Order Dismissal of Foreign Suit. A probate court has power to direct its own administrator to dismiss an action instituted by the administrator in the courts of a foreign state against a defendant who is subject to personal service in this state for personal injury inflicted in this state on the deceased, even though said action is authorized by the Federal Employer’s Liability Act to be brought in the courts of said foreign state. (37 G. A., Ch. 293.)</p>

— William Hutohinson, Judge. Action to declare certain proceedings of the conncil of the incorporated town of Sibley, Iowa, to be null and void, and to declare a contract for construction of certain paving to be void, and seeking to enjoin the defendants from acting under said alleged invalid proceedings of the town council.

— E. G. Albert, Judge. Suit in equity by plaintiff and interveners, taxpayers, to enjoin defendants, contractors, and the city of Jefferson from carrying out a contract for construction of pavement. From decree in favor of plaintiff and interveners, defendants appeal.

— Geoege A. WilsoN, Judge. The cause tried was to determine the ownership of the proceeds of a certificate issued by the defendant insurance association. The insurance association paid the money into court on interpleading for determination between plaintiff and interven-ers as to the ownership. Plaintiff claimed the fund as the original beneficiary.

— H. S. Dugan, Judge. ActioN in quo warranto to test tbe validity of tbe organization of tbe Consolidated Independent School District of Rich-land, Adair County, Iowa, and to oust the school officers-elect. Plaintiff’s petition was dismissed by the trial court, and judgment entered for costs. Plaintiffs appeal. —

— William Hutchinson, Judge. Action seeking to bind defendant to specific performance of a contract made by bis agents for the sale of his land to plaintiff. Relief denied. Plaintiff appeals. Facts appear in opinion. —

— D. W. Hamilton, Judge. Action for damages alleged to have resulted from the acts of a vicious dog owned or harbored by the defendant. The material facts are referred to in the opinion. There was a verdict and judgment for plaintiff, and defendant appeals. —

- — F. 0. Ellison, Judge. Action to recover damages against defendant landlord, based on fraudulent concealment of hog cholera infection of the leased premises, from which the tenant claims his hogs contracted cholera and died. There was a directed verdict for defendant, and judgment thereon against plaintiff for costs. Plaintiff appeals. Pacts appear in the opinion. —

— F. F. Dawley, Judge. This action involves a contest on the will of Samuel Armstrong, deceased. The jury returned a verdict that the testator, at the time of executing the alleged will, was of unsound mind, and judgment was entered on said verdict, denying admission of said will to probate. Proponents appeal. On motion, the court taxed the costs against the estate, from which ruling the contestant prosecutes a cross-appeal. —

— Charles A. Dewey, Judge. Aotion to recover damages for personal' injuries alleged to have been caused by the negligence of the defendant in operating one of its trains over a public crossing. The case was tried to a jury, which trial resulted in a verdict for the plaintiff, and judgment was entered on the verdict.

— A. P. Barker, Judge. Aotion at law, to liave a guardian of property appointed for the defendant, as a person of unsound mind and incapable of managing his ordinary business affairs. Jury waived, and cause tried to the court. Judgment entered, dismissing petition and taxing costs to plaintiffs. Plaintiffs appeal. —

— P. C. WINTER, Judge. ACTION at law to recover damages for injuries to plaintiff’s cattle in the sum of $153, caused by the failure of defendant to maintain a certain part of the division fence between the respective farms of plaintiff and defendant, under the terms of an alleged oral contract between the parties. Verdict of jury finding for the plaintiff, and judgment entered accordingly. Defendant appeals. —

— Charles A. Dewey, Judge. Aotion in equity to construe a will. The trial court construed the will and codicils together, and as claimed by plaintiff and by defendant Mattie M. Primer, giving to her the estate. The other defendants appeal. —

Appeal- from Polk District Court. — Thomas J. GutthRie, Judge. In tiie district court, this was an appeal from the action of the city council of Des Moines, acting as the board of review, in tbe matter of an assessment of tbe shares of stock of the plaintiff bank. The appeal was presented to the district court in the form of a petition filed by the plaintiff, to which petition the defendants demurred. The district court overruled the demurrer.

<p>Appeal from Fayette District Court. — W. J. SPRINGER, Judge.</p> <p>Action at law to recover damages for personal injury. There was a directed verdict for defendant, and plaintiff appeals.—</p>

<p>PAYMENT: Payment of Draft With Worthless Check. A draft which, on its face, requires payment to he made in cash or its equivalent only, and likewise limits the authority of the collecting bank to collecting and remitting to the drawer, is not paid by the act of the collecting bank in receiving the check of the drawee on the collecting bank for the full amount of the draft, and surrendering the latter, when such check, without any fault on the part of the maker, turns out to he worthless.</p>

— J. H. Applegate, Judge. Action at law to recover $2,250, the balance of the purchase price on real estate sold by plaintiff to defendant.' Trial to the court without a jury. Judgment for plaintiff for the amount claimed, and that the warranty deed and abstract deposited with the clerk should be delivered to the defendant. The defendant appeals. —

— D. W. Hamilton, Judge. Suit to foreclose a mortgage. Defendant pleaded a counterclaim for damages, based on false representations claimed to have been made by plaintiff in the exchange of lands, the land received by defendant in the exchange being the land on which the mortgage sought to be foreclosed was given. A balance after canceling the mortgage was allowed on counterclaim, and judgment entered accordingly. Plaintiff appeals. —

— D. W. Hamilton, Judge. Suit in equity to set aside and cancel contract for sale of land. Prayer of petition denied, and cross-petition of the defendant Carpenter for specific performance of the contract sustained. The plaintiff appeals. —

<p>Appeal from Monona District Court. — George Jepson, Judge.</p> <p>Action at law, to recover commission alleged to have been earned by plaintiff as defendant’s agent in the sale of land. There was a directed verdict for plaintiff, and defendant appeals. —</p>

— GeoRGE W. Dunham, Judge. Action at law to recover compensation under the Workmen’s Compensation Statute. Judgment for plaintiff, and defendants appeal. . The material facts are stated in the opinion.—

— W. G. SeaRS, Judge. ActioN at law to recover an amount alleged to be due plaintiff upon the rescission of a contract for the purchase of land. The facts are stated in the opinion. From a judgment in favor of defendants, the plaintiff appeals.' —

<p>COMPROMISE AND SETTLEMENT: Retention of Benefits. A party may not repudiate a compromise and settlement while retaining all the benefits and advantages thereof.</p>

<p>INSURANCE: Cancellation of Policy — Request for Cancellation — Ef- ' 1 feet. A written, unanswered inquiry by an insured to the insurer as to the terms on which the policy may be canceled does not, ipso facto, and as a matter of law, constitute a cancellation of the policy.</p> <p>INSURANCE: Pleading — Insufficient Plea of Cancellation. A general 2 statement in an answer that a policy of insurance "was canceled prior to loss” presents no issue.</p>

— George A. Wilson, Judge. The opinion sufficiently states the facts. There was a decree for plaintiff, and the defendants appeal. —

— Joi-iN W. Anderson, Judge. ACTION at law, to recover $3,000 damages alleged to have been suffered by plaintiff, by being run over by the driver of defendant’s automobile. Trial to a jury, which returned a verdict for plaintiff for $656.35, which the court thought was not in harmony with and in obedience to the instructions of the court, in that the verdict included items not submitted to the jury, and in excess of the amount authorized by the instructions.

<p>Appeal from Lee District Court. — Henry Bane, Jr., Judge.</p> <p>Action for damages under the Federal Employers’ Liability Act, instituted by Margaret Bennett, as administratrix of the estate of Frank M. Bennett, deceased, against the Atchi-son, Topeka & Sante Fe Railway Company, predicated on the negligence of defendant railway company, causing the death of the said Frank M. Bennett, who, at the time of his death, was. in the employ of the railway company as trackwalker. The opinion states the facts. Verdict of jury, finding for the plaintiff in the sum of $5,000, and judgment entered accordingly. Defendant appeals. —</p>

<p>Appeal from Pottawattamie District Court. — 0. D. Wheeler, Judge.</p> <p>Aotion to quiet title to real estate in plaintiffs against the defendant, and to settle the title by an interpretation and eon-struction of a will. Decree for plaintiffs, and defendant appeals. Facts are set out in tbe opinion. —</p>

— H. S. Dugan, Judge. Aotion at law, to recover damages for personal injury. There was a trial to a jury, a verdict and judgment for the plaintiff, and the defendant appeals. —

<p>Appeal from Des Moines Municipal Court. — J. E. Mershon, Judge.</p> <p>Action to recover a real estate broker’s commission. Verdict for plaintiff, and defendant appeals. —</p>

<p>NEW TRIAL: Conditions Precedent. An applicant for a new trial un-1 der Sec. 4091 et seq., Code, 1897, must assume tlie burden to establish two faets:</p> <p>1. His grounds for a new trial.</p> <p>2. The existence of a cause of aetion or defense, as the case may be. ></p> <p>TRIAL: Law(?) or Equity (?) — Equitable Proceeding for New Trial. 2 A proceeding for a new trial on the ground of fraud, in an action of partition involving an issue of title, is properly tried in equity, especially when such trial was acquiesced in by the parties in the trial court.</p> <p>NEW TRIAL: Grounds — Fraudulent Concealment of Deed. The con-3 eealment by a litigant, during an equitable trial, of a deed which was material to a pending issue of title, when such deed was produced in such time that, by stipulation, both parties had the full benefit of said deed on trial de novo on appeal, is not such fraud as will authorize the granting of a new trial, under See. 4091, Code, 1897.</p> <p>DEEDS: Execution Without Delivery. The retention by grantor, up 4 to the time of- his death, of a full warranty deed, executed with the undoubted intent on his part to ultimately deliver the deed to grantee, and with the equally undoubted intent of grantor to have control of and enjoy the property during his lifetime, and to cast the entire ownership of the property upon grantee upon the death of grantor, necessarily deprives the instrument of all legal effect.</p> <p>DEEDS: Conditional Delivery. Principle reaffirmed that no legal de-5 livery of a deed is effected by passing the deed to the grantee on a condition which never happens.</p>

<p>Appeal from Johnson District Court. — R>. G. Popham, Judge.</p> <p>PROCEEDING in condemnation of right of way or easement across appellant’s land, for the erection thereon of poles and wires to carry electric current for light, power, and heating purposes, under Chapter 174, Acts of the Thirty-fifth General Assembly. Prom an award of damages by a jury, plaintiff prosecutes this appeal. —</p>

— Milo P. Smith, Judge. ACTION to recover damages for injuries resulting' in the death of plaintiff’s intestate. Suit was brought under the Federal Employers’ Liability Act. The court directed a verdict in favor of the defendant. Plaintiff appeals. —

— W. J. Springer, Judge. Proceeding to establish plaintiff’s right to inherit, as heir of Martin Erickson, deceased. Relief was awarded as prayed. The administrator of the estate and guardian of the estate of a minor heir appeal. —