Volume 192 — Iowa Reports

<p>1 NEGLIGENCE: Electric Charge on Abandoned Line. An electric eom-pany which, with the knowledge that a mine is being dismantled, causes its abandoned transmission line to said mine to bo heavily charged with electric current, for the sole purpose of protecting the line from trespassers, without giving notice of such fact to those who, it may fairly anticipate, may be working about the mine, is liable for the proximate results of its said act.</p> <p>2 TRIAL: Excluding Exhibits Prom Jury Room. An exhibit which simply bears on the credibility of the testimony of a witness may very properly be excluded from the jury room.</p> <p>3 TRIAL:' Instructions — Correct But Nonexplicit. Correct but nonexplieit instructions are all-sufficient, in the absence of request for greater elaboration.</p> <p>4 APPEAL AND ERROR: Parties Entitled to Allege Error. A judgment defendant may not predicate error on the rendition of a judgment of subrogation in favor of an intervener, of which plaintiff does not complain.</p>

<p>1 CORPORATIONS: Fiduciary Relation of Officers — Failure to Reveal Facts. A surrender to a corporation, for a valuable consideration, of corporate stock may not be repudiated on the ground that, after the surrender had been informally agreed on, but before the surrender had been formally executed, the officers of the corporation negotiated for an advantageous sale of the property, and did not reveal such faet to the surrendering stockholder.</p> <p>2 PRINCIPAL AND AGENT: Ratification of Unauthorized Contract. Principle affirmed that the ratification of an unauthorized contract relates back to the time when the contract was made.</p> <p>3 FRAUDS, STATUTE OF: Executed Contracts. The statute of frauds becomes quite immaterial, in a controversy over an executed contract.</p> <p>4 ESTOPPEL: Change of Position. One may not repudiate his own acts and conduct which have caused another to radically change his financial condition.</p>

— D. E. Maguire, Judge. Plaintipp appeals from tbe judgment of tbe court in a law action, consolidated with two actions in equity, and also from the separate decree entered in each of tbe equity actions. Tbe issues and material facts are fully stated in tbe opinion.

— F. F. Dawley, Judge. Aotion to recover on a policy of insurance. Defenses were interposed that the insured committed suicide, and that certain answers made to the medical examiner by the insured were false. The trial court directed a verdict for the defendant! P1a.int.ifF appeals.

<p>ADVERSE POSSESSION: Evidence. Evidence held to justify decree enjoining interference with a private way acquired under claim of adverse possession.</p>

<p>1 JUDGMENT: What Constitutes Direct Attach. A reply to a defensive plea of adjudication, to the effect that such alleged adjudication was obtained by specified fraudulent and collusive means, constitutes a direct and not a collateral attack on the judgment.</p> <p>2 INJUNCTION: Vacation of Temporary Writ — Balance-of-Convenience Rule. A temporary injunction restraining a benevolent insurance association from increasing rates and from suspending the insured plaintiff will not be vacated when such vacation might irreparably injure plaintiff, while a continuance of the order will not injure defendant. Especially is this true when plaintiff’s material allegations of fraud stand uiuleniod on the record.</p>

— C. C. Bradley, Judge. Action in equity, to enjoin a board of supervisors from carrying into effect a compromise contract, whereby the construction company was to complete a certain segment of an improvement for a certain consideration, and was to be relieved from constructing the other portion of the improvement, and from its liability under the original contract. Facts appear in the opinion.

' — -Charles A. Dewey, Judge. AotioN for specific performance, and to recover damages for tbe alleged breach of a written agreement to convey real property, and to cancel and set aside a deed executed by plaintiff and wife on August 28, 1917, conveying 160 acres of land in Poweshiek County to the defendant Jackson, and to cancel the record thereof.

<p>EXECUTORS AND ADMINISTRATORS: Allowance to Surviving Spouse — Acceptance of Will no Bar. A wife, on the death of her testate husband, may claim her allowance for one year, though she accepts the provisions of a will which provides that the provisions therein for the wife shall be “in lieu of all statutory provisions in her favor.”</p>

— C. W. Vermilion, Judge. Plaintiee claims that she is tbe illegitimate child of tbe decedent, Evan Jones, and as such is bis sole heir, and entitled to bis entire estate. Tbe administrator of the estate is made a party, and also tbe brothers and sisters of tbe said decedent, who daim that tbe estate of tbe decedent descends to them. Tbe court denied tbe plaintiff tbe relief sought, and she prosecutes tbis appeal.

— R. G. Popixam, Judge. Action in equity, to determine the priority of liens. There was a decree in the court below in favor of plaintiff, and the defendant Bell appeals.

<p>APPEAL AND ERROR: Reversal — Law of Case — Retrial on Same Record. A ruling on appeal that the record revealed a jury question is absolutely binding on the trial court on retrial on the same record, and the trial court -must take notice of such record.</p>

<p>Appeal from Polk District Court. — -James C. Hume, Judge.</p> <p>Appeal from a decree in a suit in certiorari, to review tbe action of the secretary of state and tbe executive council of tbe state of Iowa in refusing to file certain articles of -incorporation.</p>

<p>Appeal from Polk District Court. — HubeRT Utterbaok, Judge.</p> <p>Action in equity for the cancellation of a deed, and for the annulment of two certain promissory notes, one for $1,000 and another for $1,500. A deed was executed, to secure the payment of the latter note.- The defendant Musgrave filed answer and counterclaim, asking judgment upon the $1,500 note, which was payable to him. The court found in favor of the Des Moines Life & Annuity Company and of the Iowa Loan & Trust Company, but entered judgment against the defendant Musgrave and the Des Moines Finance Company. They alone appeal. The further material facts are stated in the opinion.</p>

— P. C. Winter, Judge. Action at law to recover $1,000, the face value of a life insurance policy issued by defendant on the life of Clarence D. McCoy, plaintiff’s husband. The insured was in the military service, and was killed in action in France. Defendant claims that it had no notice that insured was in the military service.

<p>LANDLORD AND TENANT: Use of Outside Wall. A tenant has a right to the use of the outside wall of leased premises, and may devote such wall to any proper and nonharmful use, even though, when he became such tenant, such wall Avas not exposed) but later became exposed by a shortening of an adjoining building.</p>

<p>1 PLEADING-: Demurrer — Waiver. A demurrer is but a legal exception -to the sufficiency of a pleading, and is waived by a subsequent pleading.</p> <p>2 EVIDENCE: Parol as Affecting Writings — Collateral Oral Contract for Discharge. Parol evidence is competent, between the original parties to an apparently complete and delivered written contract, to show a collateral, contemporaneous, and inducing agreement, under which the written contract was, under certain conditions, to be relinquished and discharged. So held where the maker of notes representing the purchase price of a farm was allowed to show an oral, contemporaneous, collateral contract, under which lie was to be released from the notes in ease he sold the farm to one who would assume the indebtedness evidenced by the notes.</p>

<p>Appeal from Page District Courts — Thomas Arthur, Judge.</p> <p>Action in equity for the specific performance of a written contract for the sale of the business of a dentist and the personal property used in connection with said business, and for an injunction to restrain the defendant from engaging in the practice of dentistry contrary to said contract. Plaintiff was granted a decree, as prayed, and the defendant appeals.</p>

<p>Appeal from Linn District Court. — F. F. Dawley, Judge.</p> <p>Dependants operated in Cedar Rapids a restaurant known as tbe “College Inn,” under a written lease with the plaintiff. This action was originally instituted to enforce a landlord’s-lien on defendant’s property located on tbe leased premises. Intervener’s claim is predicated on tbe allegations that the personal property in controversy was sold to the defendants, and that title to said property remained in the intervener until the performance of certain conditions on the part of- the defendants. A part of the purchase price of the merchandise sold to defendants was paid, and notes secured by mortgage were executed and delivered for the balance. The defendants made no appearance nor filed answer in this action. The trial court established the lien of the intervener as superior to the landlord’s lien, and judgment was entered accordingly. Plaintiff appeals.</p>

<p>WATERS AND WATERCOURSES: Decree in re Construction of Dam. Ambiguous decree construed, and held to authorize the construction and maintenance of a dam to a height contemplated by the parties at the time the decree was entered, especially when the one complaining did not show that he would be damaged by the proposed construction.</p>

<p>Appeal from Woodbury District Court. — George JepsON, Judge.</p> <p>Overruling the finding of the industrial commissioner, the trial court held that appellee was entitled to compensation under the act, because an employee of defendant. Defendant appeals.</p>

<p>EVIDENCE: Parol as Affecting Writings — Uncertain and Ambiguous Contract Clause. In the quest, for the real moaning of an uncertain and, ambiguous clause of a written contract, the court may resort to parol evidence of the conversations, statements, circumstances, and conduct of the contracting parties relative to the subject-matter of such clause. So held as to a written lease which provided that ‘' said lessor agrees to have some tiling done on the premises and said lessee agrees to haul all the tile “ * *. Lessor does not agree to make any other improvements.’7</p>

— H. H. Boxes, Judge. Aotion for damages for alleged negligence of tbe defendant county in constructing and maintaining a culvert upon the highway. At the close of plaintiff’s evidence, there was a directed A'crdict for the defendant. The plaintiff appeals.—

— R. M. Weight, Judge. Aotion on account, for goods claimed to have been sold and delivered to defendant. Verdict for plaintiff, and judgment thereon. Defendant appeals. Facts in the opinion.

— Chas. K. Dewey, Judge. Tiie defendant was convicted of the crime of rape, and from a judgment sentencing him to the penitentiary at Anamosa for an indeterminate term of 20 years, he appeals.

— H. S. Dugan, Judge. Tiie defendant, having been indicted and convicted on charge of feloniously forging and altering a written contract, appeals.'

- — Lester L. Thompson, Judge. The defendant' was indicted for maintaining a liquor nuisance, and upon trial was convicted. He appeals.

— C. W. Vermilion, Judge. Dependant was accused and convicted of the crime of larceny for the theft of an automobile. He appeals.

<p>1 CRIMINAL LAW: Affidavits in re Change of Venue.' A petition for change of venue in a criminal caso, without the supporting affidavits required by statute, is fatally defective. (See. 5344, Godo of 1897.)</p> <p>2 CRIMINAL LAW: Change of Venue — Amendment to Petition. The court, after properly overruling a petition for a change of venue for insufficiency thereof, has a discretion in refusing an application to amend such defective petition.</p> <p>3 CRIMINAL LAW: Appeal — Scope of Review. Rulings as to trial jurors in criminal cases will not bo reviewed on appeal, when there must bo a reversal, irrespective of such rulings; likewise as to rulings as to grand jurors when the reversal does not work a sotting aside of the indictment.</p> <p>4 CRIMINAL LAW: Belated Objection to Grand Juror. After a grand juror is sworn in, it is too late to interpose the objection that the juror is related to the prosecutrix by consanguinity or affinity within the ninth degree — assuming that such objection is available to the accused.</p> <p>5 TRIAL: Exclusion and Separation of Witnesses. The court, on entering an order excluding witnesses from the court room during the trial, does not abuse its discretion by making an exception in the ease of the father of an immature prosecutrix.</p> <p>6 WITNESSES: Good-Character Witness — Scope of Cross-Examination. A good-character witness may bo cross-examined by a series of questions tending to reveal his standard for good moral character. This may bo done.by asking the witness whether ho would consider a person of good moral character if he (the witness) had known that tlio party whose character he has supported had been guilty of a specified immoral act.</p> <p>7 EVIDENCE: Allowable Conclusions. Examination of witness reviewed, and hold to reveal no unallowable conclusions.</p> <p>8 APPEAL AND ERROR,: Insufficient Assignment. A brief point which lodges complaint against a ruling by the court, but in no manner indicates where the ruling may be found in the record, is quite insufficient to justify review.</p> <p>9 EVIDENCE: Handwriting — Signatures for Comparisons. On the issue of the genuineness of a signature, it is error to refuse, in part, an offer of admittedly genuine signatures, for the purpose of comparison with the writing in issue.</p> <p>10 EVIDENCE: Handwriting — Comparison—Condition Precedent. Proof of the genuineness of handwriting which is offered in evidence for comparison with writings in issue is a condition preeed’ont to the reception of sueh handwriting; and there is no presumption that one who signed a check also wrote the body of the cheek.</p> <p>11 TRIAL: Excluding Books from Jury Room. The court may very properly exclude from the jury room a collateral book, only four pages of which are material, and material only as showing the qualifications of an expert witness.</p> <p>12 EVIDENCE: Handwriting — Comparisons—Refusal of Writing Made in Presence of Jury. It is not reversible error to refuse to permit a defendant on trial in a criminal ease wherein his handwriting was in issue to make or prepare a writing in the presence of the jury for the purpose of comparison with the writing in question, when admittedly genuine writings of the accused were already before the jury.</p> <p>13 EVIDENCE: Documentary Evidence — Unsigned Writings. Unless it be shown that the party against whom they are offered is in some manner responsible therefor, it is reversible error to receive in evidence writings which are (1) unsigned and unaddresscd, (2) legally irrelevant and immaterial, and (3) of little probative value in any view, but which may have appeared to the jury to be of prime importance.</p> <p>14 EVIDENCE: Documentary Evidence — Unsigned and Unaddressed Writings. Unsigned and unaddressed writings, material and relevant to the issue on trial, are admissible when a jury question is presented on the issue whether said writings were written by the one against whom they are offered.</p> <p>15 EVIDENCE: Relevancy, Competency, and Materiality. On the trial of an indictment for rape, evidence by prosecutrix that she got certain unsigned and unaddressed notes (alleged to have been written by defendant) from a certain receptacle which had been agreed on by her and tlie accused, and other evidence by other members of the family that said notes had been taken from prosecutrix by her mother and delivered to the father of prosecutrix, is incompetent, and its reception is prejudicial error, because tending' in itself to induce the jury to believe that defendant did write said notes.</p> <p>16 RAPE: Corroboration Beyond Reasonable ‘Doubt. Corroboration of prosecutrix in a prosecution for rape must bo shown beyond a reasonable doubt. It is reversible error to instruct the jury that corroboration may be found on a preponderance of the evidence.</p> <p>17 CRIMINAL LAW: Reasonable Doubt “From Evidence.” It is roversible error to instruct that a doubt, to be “reasonable,” must arise from the evidence, as such instruction excludes all reasonable doubts that may arise from the want of evidence.</p> <p>18 TRIAL: Instructions- — Correct But Not Explicit. Principle reaffirmed that an instruction is all-sufficient when it is correct but is not as explicit as counsel may desire, and no elaboration is requested.</p> <p>19 TRIAL: Instructions — Assumption of Fact. A recital to the effect that the court had required the State to elect which particular transaction “developed” by it would be relied upon for a conviction is not an assumption that such transaction has, in fact, been established.</p> <p>20 APPEAL AND ERROR: Time for Exceptions. An order that defendant may have a stated time in which “to file a motion for now trial and exceptions to instructions” grants defendant the right to file his motion at the stated time and to embrace therein his exceptions to the instructions.</p> <p>21 APPEAL AND ERROR: Indefinite Assignment. An assignment to the effect that “the court erred in overruling the motion in arrest of judgment and for new trial” is fatally indefinite, when the motion is based on 13 distinct grounds, with many subdivisions.</p> <p>22 APPEAL AND ERROR: Scope of Review. Misconduct of jurors will not be reviewed on appeal when there must be a reversal irrespective of such misconduct.</p>

— M. E. Hutoi-iisoN, Judge. The defendant appeals from a conviction of the crime of attempting to produce a miscarriage. Tbe facts, so far as they are necessary to the decision of the points presented for review, will be stated in tbe course of the opinion.

— E. G-. Albert, Judge. Aotion to recover an installment of interest upon a contract for the purchase of real estate. The facts are fully stated in the opinion. Verdict and judgment for plaintiff, and defendant appeals.

— Milo P. Smith, Judge. Each of the two above-entitled eases was brought in equity, to rescind the sale to plaintiff of 10 shares of the capital stock of the Washington Refining Company, and to recover from defendants the price paid therefor, as well as for the recovery of an amount alleged to have been paid by the plaintiff, B. Tapper, as indorser upon the promissory notes of said corporation. The two cases were tried.together on the same record.

— Joseph E. Meyer, Judge. Aotion in equity for accounting against the defendant corporation and for judgment in such amount as may be found due plaintiff under the terms of a written contract, as compensation for services rendered by him as manager of defendant’s paper and woodenware department.

— H. S. Dugan, Judge. Aotion at law upon a drainage bond, to recover the amount of preliminary expenses incurred by the plaintiff county in a proceeding to establish a drainage district in the counties of Polk, Warren, and Marion. There was a judgment for plaintiff, and defendants appeal.

— R. G-. Popham, Judge. Action lor damages growing out of a collision between a horse and buggy driven by the plaintiff, and an automobile driven by the defendant Olive Yetter. The jury returned a verdict in favor of the plaintiff, and the defendants appeal.—

<p>TRUSTS: Fiduciary Relations — Parent and CMld. A parent who, in 1 good faith and for adequate consideration, purchases property in which his minor child, as an heir, has an interest which is negligible, owing to the incumbered condition of the property and its liability for other debts, does not, because of the existing fiduciary relation, become a trustee of the property for the benefit of the ehild.</p> <p>TENANCY IN COMMON: Acquisition, of Outstanding Title by Co-2 tenant. A mother who purchases an outstanding title to property which is held by her in common with her minor child, and at all times thereafter, with knowledge of the ehild, takes possession, and claims and exercises absolute ownership over the property for more than ten years after the child attains its majority, acquires full title by adverse possession, even though it be conceded, arguendo, that the original acquisition of the outstanding title by the mother amounted to nothing more than an equitable redemption of the property for the common benefit of herself and ehild.</p>

<p>Appeal from Decatur District Court. — H. K. Evans, Judge.</p> <p>Aotion on a promissory note. The facts are stated in the opinion. Judgment for plaintiff, and the defendant, Gross, appeals.</p>

— Seneca CorNell, Judge. ACTION for damages to a shipment of grapes. Directed verdict for defendant, and judgment against plaintiff for costs. Plaintiff appeals. The material facts are recited in the opinion.

— D. M. ANDerson, Judge. DEFENDANT was convicted in mayor’s court of violation of an ordinance of the city of Bloomfield, regulating the speed of automobiles upon the public streets. He appealed to the district court, where the action of the mayor’s court was sustained, and he now prosecutes his appeal to this court.

— Senboa CoRnell, Judge. A PROCEEDING to establish alleged lost corners of a residence lot. The plaintiff moved for a continuance, and for time to file exceptions to a commissioner’s report. His motion being overruled, he refused to appea.r at the trial, and his petition was dismissed for want of prosecution. He has appealed'.

— P. C. Winter, Judge. Appellee brought this action to recover damages for the breach of a contract between himself and appellant which provided for exchange of properties. Appellee alleged that he suffered damages because the premises received by him were subject to a lease extending from March 1, 1919, to March 1, 1920, whereby he was denied possession of the premises on March 1, 1919, on which date, under the contract, he was to receive possession.

— F. F. Dawley, Judge. ■ - Action brought by the executors of her estate for the construction of the will of Harriette S. Daniels, who died October .24, 1919. A full statement appears in the opinion.

— James W. Willett, Judge. Actton to recover damages for personal injury claimed to have'been caused by the negligence of the defendants. Verdict for the plaintiff, and defendants appeal.

<p>Appeal from Des Moines District Court. — OSCAR Hale, Judge.</p> <p>Suit for specific performance of a contract to sell real estate. Decree for plaintiff. Defendant appeals.</p>

— Seneca CoRnell, Judge. The defendant was convicted in tbe court below of tbe crime1 of forgery, and sentenced to an indeterminate sentence in tbe penitentiary, and be appeals.

— D. M. AndeRSOn, Judge.’ The defendant was convicted of manslaughter, and prosecuted an appeal. He made application to the district court, under the statute, for an order that a transcript of the evidence in said cause be ordered at the expense of the county. The application was refused, and defendant appeals from the order denying said application.

— Earl Peters, Judge. ACTION in equity, to determine the validity of an election establishing a consolidated school district, and to enjoin the treasurer and director from issuing bonds. By stipulation of the parties, it was agreed that the court might treat the action as an appropriate one, whether technically so brought or not. There was a decree dismissing plaintiff’s petition, and he appeals.

<p>Appeal from Page District Court. — E. B. Woodruff, Judge.</p> <p>ActioN brought to recover compensation for waiting on prisoners, as provided in Section 511, Code Supplement, 1913, Paragraph 17. Trial to the court without a jury. Recovery was denied, and plaintiff appeals.</p>

— F. 0. EllisoN, Judge. Notion at law to recover $7,187, proceeds of four drafts issued by plaintiff as drawer and paid by plaintiff as drawee, and alleged to have a forged or unauthorized indorsement thereon, through which defendant bank secured its title prior to presentment and payment. Verdict of jury under direction of the court, finding for defendant. Judgment entered against plaintiff for costs. Plaintiff appeals.

— C. C. HamiltoN, Judge. ACTION in equity, to enjoin defendants from interfering with his operation of a so-called jitney bus on the streets of Sioux City, and to enjoin defendants from prosecuting him for the violation of an ordinance passed pursuant to Chapter 115, Acts of the Thirty-ninth General Assembly.

<p>1 LANDLORD AND TENANT: Rent — Payment—Evidence. Evidence held to present a jury question on the issue whether a tenant and landlord had contracted for the sale and delivery of personal property in payment of the rent.</p> <p>2 WITNESSES: Impeachment — Former Testimony on Retrial. Principle reaffirmed that, upon the retrial of an action, the testimony given upon the retrial is the testimony upon which the cause must be determined, and that the testimony given upon the first trial can be considered only as impeaching testimony.</p>

<p>Appeal from Polk District Court. — Lester L. TitompsoN, Judge.</p> <p>This is an appeal from a probate order, entered in the estate of F. R. McClellan. Objections were filed by Mand E. Hart, sole heir of the decedent, to the certain report of the widow, as administratrix. Her objections were all overruled, and the report approved, and the allowances prayed for therein were all granted.</p>

— John W. Anderson, Judge. Suit for divorce on the ground of cruel and inhuman treatment. There was a decree for the plaintiff, and the defendant appeals.

- — W. G. Sears, Judge. Suit in equity, to set aside certain paving assessments and to cancel the lien thereof against the property of the plaintiff. A demurrer to tbe petition was sustained, and the plaintiff appeals.

<p>1 MUNICIPAL CORPORATIONS: Public Improvements — Assignment of Contract — Priority in re Subcontractor. One who, as collateral security, takes an assignment of sums falling due under a public improvement contract, takes subject to the subcontractor’s contract right to be first paid, even though the assignment was known to the city and subcontractor before the work was done or materials furnished.</p> <p>2 MUNICIPAL CORPORATIONS: Public Improvements — Contract Method for Protecting Subcontractors. A contract for the construction of a public improvement may provide a contract method for securing the payment of 'claims of subcontractors, and in such ease the latter may disregard the statutory method.</p> <p>3 MUNICIPAL CORPORATIONS: Public Improvements — Filing Claims of Subcontractors. A provision in a contract for the construction of a public improvement that subcontractors shall file their claims with the mayor and city council is substantially complied with by filing such claims with the city cleric.</p>

<p>Appeal from Des Moines Municipal Court. — T. L. Sellers, Judge.</p> <p>Action to recover damages resulting from a collision between an automobile driven by the employee of the plaintiff and an automobile driven by the alleged employee of the defendant. Defendant appeals from a verdict and judgment against it/—</p>

— C. C. Bradley, Judge. Aotion brought by appellee, W. J. Bennett, to recover rent from appellant Theodore Kroger, tenant, during the year 1920, on certain land. The real controversy, however, is between ap-pellee, Bennett, the owner of the land, and appellant J. P. Marx, intervener, who had contracted for purchase of the land, and claims that he was entitled to possession of the land, under such contract, during the rental xoeriod, and entitled to receive the rent.

— D. W. Hamilton, Judge. Suit in equity, brought to subject property of the husband, appellee Frank Gr. Welch, to the satisfaction of a judgment obtained against the wife, Mrs. Frank Gr. Welch, for the cost of a monument erected by appellant at the grave of the infant daughter of Welch and his wife. Relief was denied, and plaintiff appeals.

<p>Appeal from Mahaska District Court. — H. F. Wagner, Judge.</p> <p>Plaintiff brought this action for damages for breach of the covenants of a warranty deed, in that the defendant had failed to pay certain taxes upon the conveyed premises; wherefore the plaintiff had been compelled to pay the same. The defendant admitted his liability for such breach, and for the amount of damages claimed by the plaintiff, but set up a counterclaim for damages against the plaintiff for the collection of certain rents upon property conveyed by plaintiff to defendant, which rents were the property of the defendant, as alleged. The plaintiff denied all liability on the counterclaim, and averred that the items set up in such counterclaim had all been adjusted and included in a certain $4,000 note'which was executed by plaintiff to defendant at the time of the' execution of the contract and deed, whereby the defendant became entitled to such items. At the close of the evidence, the trial court directed a verdict for the defendant on his counterclaim. Plaintiff appeals.</p>

- — Hubert Utterbaoe, Judge. Plaintiff seeks to disaffirm contracts for the purchase of several automobiles, entered into while a minor, and to recover the various sums paid therefor. Judgment for plaintiff. Defendants appeal.

— William Hutchinson, Judge. Aotion for damages for personal injury resulting to plaintiff from a fall upon tbe stairway in the building of the defendant. Verdict for tbe defendant, and tbe plaintiff appeals.—

— D. W. Haiiilton, Judge. PROCEEDING in probate, to set aside an order for tbe sale of real estate. Judgment denying the relief sought.

<p>Appeal from Mahaska District Court. — Charles A. Dewey, Judge.</p> <p>Aotion to quiet title to certain property. Defendant filed a cross-petition, asking that the title to the said premises be quieted in him. The court dismissed the plaintiff’s petition, and entered a decree quieting the title in the defendant, upon his cross-petition. Plaintiff appeals.'</p>

<p>Appeal from Momroe District Court. — C. W. Vermilion, Judge.</p> <p>Action to recover damages for the alleged wrongful interference by the defendant with plaintiff’s access to the water of a certain pond or reservoir, used by him for watering stock. The facts are fully stated in the opinion. See, also, McCoy v. Chicago, Milwaukee & St. Paul R. Co., 176 Iowa 139. A jury was waived, and the cause tried to the court, resulting in a judgment for plaintiff for $600. Defendant appeals.</p>

<p>JUDGMENT: Default — Nonjurisdiction to Set Aside. The court has no jurisdiction, after the passing of a term, to set aside a default judgment, though unsigned, on a motion filed after the term, even though the motion is equivalent to a petition, when the judgment plaintiff is not brought i/nto court as to said motion in the manner required for the bringing of an original action, and makes no appearance to said motion. (Sees. 3790, 4095, Code, 1897.)</p>

<p>Appeal from Polk District Court. — Lawrence De Graee, Judge.</p> <p>Aotion at law upon a contract. At tbe close of .the plaintiff’s evidence, there was a directed verdict for the defendant, • and the plaintiff appeals.</p>

<p>Appeal from Iowa District Court. — Ralph Otto, Judge.</p> <p>Action at law to recover damages for injury sustained by plaintiff by tbe falling of a tractor wheel at tbe station of tbe defendant company. Tbe court directed a verdict for tbe defendant, and plaintiff appeals.</p>

<p>Appeal from O’Brien District Court. — WilliaM Hutohinson, Judge.</p> <p>Action upon an account. Verdict and judgment for plaintiff. Defendant appeals.</p>

— A. J. House, Judge. Aotion in equity to enjoin the collection of drainage taxes. Judgment in the court below dismissing plaintiffs’ petition. Pláintiffs appeal.

— D. W. Hamilton, Judge. Aotion to quiet title to certain real estate and to recover possession thereof, and for an accounting for rents and profits. A cross-petition was filed, praying that the title to said described real estate be quieted in the defendant Gagle. The court dismissed the plaintiffs’ petition, and by decree quieted the title to the real estate in controversy in the defendant. Plaintiffs appeal. Gagle is sole appellee.

<p>Appeal from Polk District Court. — J. D. Wallingford, Judge.</p> <p>ACTION for personal injury. Verdict and judgment for the defendant. Plaintiff appeals.</p>

— George A. WilsoN, Judge. DEFENDANT appeals from a conviction in the court below of the crime of larceny. The facts are fully stated in the opinion.

— Hubert Utterback, Judge. Suit in equity, to foreclose a mortgage. Various defenses were interposed, including tbe defense of fraud and that of the statute of limitations. There was a decree dismissing the petition, and the plaintiff appeals.

— William Hutchinson, Judge. Aotion to recover damages, based on alleged false representation of seed corn sold by defendant to plaintiff and bis assignees. Tbe jury returned a verdict for plaintiff in tbe amount of $119.96. Judgment was entered on tbe verdict, from which judgment defendant appeals.

<p>NEGLIG-EN CE: Contributory Negligence — When Jury Question. Principle reaffirmed that negligence per se may not be declared on any state of facts, unless the court can say that such must be the judgment of all fair-minded men. Evidence as to a collision between an automobile and a street ear on a dark, foggy night reviewed, and held to present a jury question on the issue of contributory negligence.</p>

<p>Appeal from Poweshiek District Court. — H. F. Wagner, Judge.</p> <p>ACTION upon an account for materials furnished and for work and labor performed by plaintiff for the defendant upon several buildings owned by defendant. Judgment for plaintiff. Defendant appeals.</p>

— Charles A. Dewey, Judge. Aotion in equity, to quiet title to all minerals underlying certain real estate which is described in the opinion. There was a decree and judgment in favor of the defendants, and plaintiffs appeal.

— Lawrenoe De Grape, Judge. Aotion in equity for the specific performance of a contract to convey real estate. Decree for plaintiff. Defendant appeals.

<p>RAILROADS: Accidents at Crossing — Negligence Per Se of Minor. A boy 15 years of age, and of'average mentality, who, on a clear day and without distracting circumstances, and at a time when ho is expecting a train, drives upon a familiar railroad crossing with an easily managed team, and at all times after reaching a point 25 feet from the track has an unobstructed view of an on-coming train for a distance of from 237 to 400 feet, is guilty of contributory negligence per Se, even though he says he looked and listened up to the instant of collision.</p>

<p>1 MUNICIPAL CORPORATIONS: Public Improvements — Recovery of Deposit. The published notice of the reception of bids on a paving improvement is not mandatory, in so far as it fixes the amov/nt of the deposit to accompany the hid. A bidder who makes the'deposit in the amount called for by the plans, and learns, before his bid is accepted, that said deposit is materially less than required by said notice, and does not withdraw his bid or deposit, may not recover his deposit when it appears that the city was compelled to readver-tise and to relet the contract at a loss exceeding the deposit.</p> <p>2 MUNICIPAL CORPORATIONS: Public Improvements — Discrepancy Between Notice and Specifications. A bidder whose accepted bid is exactly responsive to the specifications as to the thickness of a proposed paving may not complain that the published notiee for bids was somewhat equivocal as to thickness.</p>

— F. C. Platt, Judge. AotioN in equity to quiet title and determine tbe priority of judgment creditors in relation to tbe enforcement of tbeir claimed liens against a pension-money homestead. The opinion states tbe facts. Tbe trial court .entered a decree in favor of tbe plaintiff. Defendant appeals.-

— H. S. DugaN, Judge. Aotion to foreclose a mortgage prior to due date by reason of a default on the part of the mortgagor to pay the interest at the time stipulated. Decree entered finding equities in favor of the plaintiff.

— J. H. Applegate, Judge. ACTION of mandamus, to require the defendant, as county superintendent of schools in Madison County, Iowa, to issue call for an election upon the organization of a consolidated independent school district. The application was denied by the trial court, and plaintiffs appeal.

— W. G. Sears, Judge. The plaintiff, employee of the defendant, made claim for compensation for an alleged injury resulting in hernia, while in tbe defendant’s service. The arbitration committee called to consider the claim rejected it by a majority finding which was concurred in by two of its members, the third member dissenting.

— H. S. Dugan, Judge. ACTION at law, in which appellant asks judgment against defendant Zieman on the answer of the garnishee.

— E. B. Stiles,-Judge. AotioN at law by the beneficiary of an insurance certificate issued by the defendant, to recover the amount of the certificate, with interest. The certificate was issued on the life .of Albert E. Fellers, now deceased. Plaintiff is his mother, and the beneficiary named in the certificate. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.

<p>Appeal from Des Moines Municipal Court. — J. E. MershoN, Judge.</p> <p>ActioN of forcible entry and detainer, for the possession of a certain house and lot in the city of Des Moines. Trial to a jury, and verdict directed for the plaintiff. Defendants appeal.</p>

<p>Appeal from, Polk District Court. — Joseph E. Meyer, Judge.</p> <p>Action for divorce. Decree entered finding equities in favor of plaintiff. Defendant appeals.</p>

— Osoar Hale, Judge. APPLICATIONS in probate to require the executor of decedent testator to convey to appellees certain real estate in conformity with the terms of the will. The material facts are stated in the opinion. The trial court sustained the appellees’ contentions.

<p>1 CERTIORARI: Validity of Ordinance. Certiorari will lie, to test the validity of an ordinance vacating an alley.</p> <p>2 CERTIORARI: Evidence Dehors Return. Proceedings in certiorari need not be heard solely on the return. Any testimony may be received, if it bears on the issue of illegality or jurisdiction.</p> <p>3 MUNICIPAL CORPORATIONS: Arbitrary Vacation of Alley. The vacation of a much used alley which extends entirely through a bloeh, for the sole purpose of selling such vacated strip only to the adjoining landowners, is an arbitrary exercise of the power of the council, and therefore void.</p>

<p>Appeal from Delaivare District Court. — H. B. Boies, Judge.</p> <p>The nature and effect of this controversy are sufficiently disclosed in the following opinion. The relief sought by the plaintiffs having been denied by the district court, they have appealed.</p>

— B. B. Stiles, Judge. Suit in equity, to foreclose three real estate mortgages amounting to a sum total of $46,000. These mortgages were executed on May 10, 1918, and drew interest from March 1, 1919, and purported to become due in seven years from March 1, 1919, with interest at 5 per cent. The plaintiff purported to declare the same due, by reason of certain accelerating provisions contained in the mortgages.

— H. S. Dugan, Judge. Suit for damages for breach of contract. Because of a prayer for equitable relief, the case was brought on the equity side, and so tried. There was a decree for the plaintiff, and the defendant appeals.

<p>INTOXICATING- LIQUORS: Contempt — Medical Compound as Beverage. An intoxicating liquor injunction is not shown to have boon violated by testimony establishing the faet that a medical compound in a substantial quantity, and containing 16VL per cent, by volume, of alcohol, was found in the possession of a retail druggist, with counter undisputed, unimpeached testimony showing: (1) That said quantity of aleohol was only sufficient to act as a solvent; (2) that the effect of said aleohol was neutralized by the medicinal ingredients; and (3) that physical debility, acute diarrhea, pain, vomiting, and prostration would result if said compound were taken in doses exceeding one and a half ounces.</p>

<p>1 DEEDS: Setting Aside — Fraud and Duress. Evidence reviewed, and held that the grantor in deeds executed the same without fraud or duress, and for the purpose of waiving her apparent rights of dower, and in accordance with a pre-existing but lost antenuptial contract.</p> <p>2 WITNESSES: Competency — Transaction with Deceased. A grantee in a quitclaim deed, defending against the charge that the deed was fraudulently procured, in addition to testifying that plaintiff executed the deed for the purpose of carrying out a lost antenuptial contract between plaintiff and. grantee’s father may also testify to relevant conversations with plaintiff and the deceased father as to the existence of such a contract.</p>

<p>1 ARSON: Failure to Prove Corpus Delicti.. The corpus delicti in arson— a felonious, willful, and malicious burning — may not be established from any combination of circumstances which may reasonably be reconciled with the theory that the fire was not of felonious origin.</p> <p>2 CRIMINAL LAW: Motive. Proof of motive is not proof of corpus delicti.</p>

<p>Appeal from Polh District Court. — Hubert UtteRbaok, Judge.</p> <p>The defendant was indicted for murder in the second degree. Trial to a jury, and conviction for manslaughter. Defendant was sentenced to the penitentiary for a period not exceeding that provided by the statute. Defendant appeals.—</p>

<p>1 MUNICIPAL CORPORATIONS: Ordinances — One Reading Without Suspension of Rules. A record which affirmatively shows that a proposed ordinance was not given three readings, and that the statutory rule so requiring was not suspended, is fatally defective.</p> <p>2 MUNICIPAL CORPORATIONS: Ordinances — Bunching Various Proposed Ordinances. Various proposed ordinances may not be bunched under one motion and enacted en masse.</p>

<p>Appeal from Polk District Court. — Hubeet UttERBACK, Judge.</p> <p>Under a search warrant, 25 cases of Old Reserve and a small quantity of Beef, Iron & Wine and of Stearns Tonic were seized. The principal contention is in regard to the Old Reserve Tonic. The National Selright Association is a wholesale drug firm, with its principal place of business in Des Moines, Iowa. It appeared, and filed a resistance, claiming to be the owner, and that the liquors seized are bona-fide medicinal preparations, and not intoxicating liquor, and incapable of being used as a beverage. It asked the return of the liquor. The liquor was seized January 25, 1921. The trial court ruled that Old Reserve and Beef, Iron & Wine were intoxicating liquors, capable of being used as a beverage, and that they were banned by the Iowa law; and that the Old Reserve comes under the ban of the Iowa law, notwithstanding the Federal statute and the certificate or permit from the Federal authority. The liquors were ordered destroyed. The defendants appeal.</p>

<p>Appeal from Madison District Court. — J. H. Applegate, Judge.</p> <p>The defendant was indicted under Paragraph 2 of Section 20 of Chapter 275, Acts of the Thirty-eighth General Assembly, the indictment charging her, in substance, with the crime of having in her possession a motor vehicle with the serial number or engine number of said motor vehicle defaced, altered, or tampered with, and without having in her possession a certificate of registration and transfer from the proper officer, showing good and sufficient reason why said numbers were defaced, changed, or tampered with, and so on. The indictment charges that the motor Vehicle in question was-a Buick touring car K-45, 1921 model. The defendant pleaded not guilty, and trial was liad to a jury. At the close of the State’s evidence, and again at the close of all the evidence, defendant moved for a directed verdict, on the ground that the evidence was not sufficient to convict, and that there was no evidence to show that defendant had knowledge that the numbers were defaced or altered, if they were. The motions were overruled. The jury found defendant guilty, and sentence was pronounced. Defendant appeals.—</p>

<p>Appeal from Dallas District Court. — H. S. Dugan, Judge.</p> <p>Aotion in equity. The opinion sufficiently states the case. Decree for plaintiff as prayed, and defendant and intervener appeal.</p>

<p>Appeal from Delaware District Cov/rt.- — H. B. Boies, Judge.</p> <p>AotioN at law, to recover damages for the death of Heman Young, who was killed, as plaintiff claims, by coming- in contact with defendant’s high-tension electric light wire, while he was in the act of constructing a telephone service line. There was a jury trial, and a verdict for the defendant. The plaintiff’s motion for new trial was sustained, and defendant has appealed from that ruling.</p>

<p>Appeal from Buchanan District Court. — H. B. Boies, Judge.</p> <p>ActioN by plaintiff, to recover money paid to defendants on a contract for purchase of real estate, because of their failure and inability, as plaintiff alleges, to furnish an abstract showing merchantable title, as required by the contract. The two cases named in the caption were brought separately, but since they involved the same questions, they were by ag’reement consolidated, and'tried as in equity. Equitable relief was asked, but it is conceded now that the only question is whether plaintiff is entitled to recover the money paid by him on the' execution of "the contract, with interest, and the damages claimed. The trial court found that the abstracts of title tendered by defendants did present a merchantable title to the lands; that defendants did have a good and sufficient title to their lands in fee simple; and that .they tendered conveyance thereof to plaintiff. The petitions of plaintiff were dismissed, and judgment rendered against him for costs. The plaintiff appeals.</p>

<p>1 TRIAL: Direction of Verdict — Undenied but Impeached Testimony. One or more witnesses whose testimony, if true, establishes the cause of action pleaded, may have their credibility so successfully shaken on cross-examination as to present a jury question, even though the opposing party did not specifically deny the testimony.</p> <p>2 TRIAL: Instructions — Manifest Purpose. Wlien the language of an instruction correctly presents to the jury a material principle of law, and when such is manifestly its sole purpose, it will not bo stamped as erroneous because an unnecessary phrase or clause thereof is incorrectly stated, but subsequently properly covered.</p> <p>3 LIBEL AND SLANDER: Mental Pain. One who lias been slandered by words actionable per se may, under proper pleadings, testify to the mental pain suffered thereby.</p> <p>4 LIBEL AND SLANDER: Mitigation of Actual Damages. Mitigating circumstances tending to prove the bad character and reputation of plaintiff as to the very trait as to which plaintiff claims to have been slandered, may be considered in reduction of actual damages, even though defendant maliciously spoke the slanderous words.</p> <p>5 LIBEL AND SLANDER: Repetition of Slander to Unimpleaded Parties. Testimony tending to show the repetition by defendant of a slander to persons other than those specially pleaded, is receivable on the issue of malice, but not as a basis for the assessment of damages.</p> <p>6 LIBEL AND SLANDER: Reputed Wealth of Defendant. The general reputation and standing of defendant in an action for slander are admissible as bearing on the influence his words may have in the community; hut testimony tending to show his reputed wealth in specific amount is wholly inadmissible.</p>

<p>HIGHWAYS: Abandonment. A highway must be deemed legally abandoned when, for almost half a century after its legal establishment, it remains unopened, unimproved, obstructed by cross-fences, in places naturally impassable, and with a degree of public use quite negligible.</p>

— James W. Willett, Judge. Aotion to recover damages for claimed breach of a verbal contract between appellees and appellant to sell appellant a farm of 160 acres and 10 acres of timber land remote from the farm. At the close of the testimony of plaintiff, on motion of defendants, the court directed a verdict. Judgment was entered on the verdict, from which plaintiff appeals.

<p>Appeal from Fayelte District Court. — IT. E. Taylor, Judge.</p> <p>ActiON in replevin, to recover possession of certain household goods and other chattels. Verdict and judgment for plaintiff, and defendant appeals.</p>

<p>1 DIVORCE: Presumption in re Decree Against Insane Defendant. A decree of divorce, rendered at a time when the defendant is insane, carries a presumption that it was granted on causes fully accrued prior to insanity.</p> <p>2 DIVORCE: Decree Against Insane Defendant — Fraud. Evidence held insufficient to establish fraud in obtaining a divorce from an insane wife.</p> <p>3 DIVORCE: Insanity of Defendant. Insanity of a defendant is no bar to an action for divorce for grounds fully matured prior to the insanity.</p> <p>4 DEEDS: Deed by Insane Wife Followed by Her Divorcement. The fact that a deed executed by a wife for the purpose of relinquishing dower was executed while she was insane, becomes immaterial when, subsequent to said execution, the husband obtains a divorce from said wife.</p>

<p>Appeal from Floyd District Court. — C. H. Kelley, Judge.</p> <p>Action upon an accident policy for death benefit. Jury waived, and cause tried to the court. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Des Moines Municipal Court. — J. E. Mershon, Judge.</p> <p>Aotion to recover damages for injuries sustained by plaintiff, caused by stepping in a hole in the floor of the basement of the boiler room under defendant’s place of business. Verdict for plaintiff, and défendant appeals.</p>

<p>Appeal from, Mills District Court. — Earl Peters, Judge.</p> <p>ACTION for the construction of a will. The facts appear in the opinion.</p>

<p>Appeal from Waterloo Mumdpal Court. — O. B. Courtright, Judge.</p> <p>ACTION at law to recover damages by reason of alleged false and fraudulent representations of the defendant, inducing the execution of a written contract of purchase of defendant’s one-half interest in a partnership business by copartner plaintiffs. Jury waived and cause tried to the court. Judgment entered in favor of plaintiffs and defendant appeals.'</p>

— F. F. Dawley, Judge. Appeal from condemnation proceedings instituted by the Independent School District of Cedar Kapids; Iowa, against certain real estate of the plaintiff. Petition was dismissed on the ground that the service of notice of appeal made upon the sheriff of Firm County was not sufficient and conferred no jurisdiction upon the district court to try said cause. Plaintiff appeals.—

<p>1 ASSAULT AND BATTERY: Civü Action — Nonremote Threats. In an action for damages for assault, nonremote threats by defendant of physical violence to plaintiff are admissible on the issue of malice.</p> <p>2 APPEAL AND ERROR: Harmless Error — Error Against Prevailing Party. The court will not determine whether testimony bearing on an issue was admissible, when the jury found in complainant’s favor on such issue.</p> <p>3 APPEAL AND ERROR: Harmless Error — Presumption That Jury Obeyed Instructions. In an action for. assault, involving several elements of damages, including loss of time, the defendant may not complain of an instruction that no damages shall bo allowed for loss of time unless the evidence shows the value thereof, even though the evidence does not show such value.</p> <p>4 ASSAULT AND BATTERY: Excessive Verdict — $500. Verdict of $500 for assault and battery held not excessive.</p>

— Earl PeteRS, Judge. ACTION to recover damages for personal injuries. Verdict by the'jury for defendant, by direction of the court. Plaintiff appeals.

— Homer A. Fuller, Judge. ACTION for the construction of a will, and to restrain trustees named in the will from an alleged misappropriation of trust funds. The relief sought was denied, and petitioners appeal.

— Joseph E. Meyer, Judge. Action in equity, for the rescission of a contract for the exchange of real property, and to cancel certain deeds and other instruments executed in pursuance thereof. Decree in the court below dismissing plaintiffs’ petition, and they appeal.

— Charles A. Dewey, J udge. ORIGINAL action in certiorari, to review tlie granting of an order by the judge of the district court of Washington County, Iowa, appointing a temporary guardian for petitioner.

<p>Appeal from Polk District Court. — L. L. Thompson, Judge.</p> <p>Action at law, to recover money judgment upon a written contract of indemnity. Tbe material facts are sufficiently stated in tbe following opinion. There was a judgment for plaintiff, and defendants appeal.</p>

<p>Appeal from Winnebago District Court. — M. F. EdwaRDS, Judge.</p> <p>Aotion to recover tbe purchase price of personal property. Counterclaim by defendant. Judgment on the counterclaim. Plaintiff appeals.</p>

A.ppeal from Fremont District Court. — E. B. Woodruee, Judge. Aotion to quiet title to certain lands. Decree as prayed, and defendants Hall and Foster appeal. The facts appear in the opinion.

<p>MORTGAGES: Oral Contradiction of Written Assumption of Payment. One who, in the exchange of equity for equity, takes a deed in which ho inadvertently assumes the payment of a pro-existing mortgage on the property (to which mortgage he is a stranger) may, when sued on such assumption, show by oral testimony that there was no consideration for such assumption of payment, and that the contract for exchange Aid not, in fact, provide for such assumption.</p>

<p>Appeal from Woodbury District Court. — C. C. Hamilton, Judge.</p> <p>Aotion in equity to enforce specific performance of a land contract. The trial court determined the equities to be with plaintiff. Defendants appeal.</p>

— II. E. TayloR, Judge. AotioN on attachment bond, to recover damages on account of alleged wrongful suing out of an attachment and levy upon a restaurant property. Trial to a jury. Verdict for $1,095 for plaintiff, and defendants appeal.

— W. J. Springer, Judge. Aotion to determine whether certain personal property is subject to a collateral inheritance tax. Finding and judgment in favor of the State.

<p>BURGLARY: Proof of Intent. Proof "beyond a reasonable doubt of the intent charged is always necessary. Proof hold insufficient.</p>

<p>1 ADULTERY: Sufficiency of Evidence. Evidence relative to the adulterous disposition of tlie parties, opportunity to commit the act, and other incriminating circumstances, held to present a jury question on the issue of guilt.</p> <p>2 ADULTERY: Commencement of Prosecution — Assumption of Pact. Instructions which assume, on conflicting and indefinite testimony, that a prosecution for adultery was commenced on the complaint of the wife, aro prejudicially erroneous.</p> <p>3 ADULTERY: Instructions — Assumption of Fact of Marriage. When the testimony tending to show a marriage is positive and undisputed (in a prosecution for adultery), the court may instruct that such fact stands established.</p> <p>4 CRIMINAL LAW: Instructions — Assumption of Record Stipulation. The court may, in its instructions in a criminal case, assume as true a fact admitted of record.</p> <p>5 STIPULATIONS: Presumption. A record stipulation of fact carries the presumption, even in a criminal cause, that it was entered under an agreement by both parties.</p>

— J. B. BoCkaeel-low, Judge. DeeeNdaNt was indicted for the crime of larceny of a Ford touring car. He was convicted, and appeals.

— H. E. Frye, Judge. Trial on an indictment for the crime of breaking and entering a building in the nighttime resulting in a verdict of guilty. Motion for new trial was overruled and judgment was entered on the verdict. Defendant appeals.'

<p>WATERS AND WATERCOURSES: Drainage of Dominant Lands — Increased and Accelerated Flow. Owners of dominant lands may, without liability in damages, construct upon their lands ditches in the natural course of drainage, for the purpose of carrying surface waters to a highway culvert which lies in the pathway of such drainage, even though the flow of such waters is increased and accelerated at the point whore, after passing through the culvert, they reach the "servient lands.</p>

— J. B. RoCKAEEllow, Judge. ACtion to enjoin a trespass. All of the material facts are stated in tlie opinion. Judgment and decree for plaintiff, as prayed. Defendant appeals.'

— J. B. Rogkafellow, Judge. Two cases, one an original proceeding in certiorari in this court, and the other an appeal in equity from a decree of the district court of Harrison County, are consolidated by stipulation and submitted together by agreement of the parties, in which proceeding we acquiesce. The facts appear in the opinion. In the certiorari case, the order of the lower court is — Annulled. The equity case is

<p>Appeal from Palo Alio District Court. — N. J. Lee, Judge.</p> <p>Suit in equity, for the specific performance of an alleged contract for conveyance of land. There was also a cross-action, or counterclaim, in equity, ashing that the alleged contract be found null and void, and that the same be canceled of record. Pending the trial, plaintiff dismissed his petition, and the issues upon the cross-petition were tried, and found in favor of defendants. The plaintiff appeals.</p>

<p>1 EXECUTION: Special Levy Ineffectual as to Bank Deposit. A levy on the mechanical equipment of a plant cinder a special foreclosure execution does not roach a bank deposit which accumulates from the management of the plant by a custodian, pending sale, and which is deposited in the name of the mortgagor. It follows that the bank, being without notice of any change in the nature of the account, may charge the said deposit with the amount of the mortgagor’s past-due note to the bank.</p> <p>2 EXECUTION: Amendment of Writ. A mere custodian of property, ponding sale under special execution, has no standing to demand a nunc pro tunc amendment of the writ by inserting therein (as permitted by the decree) a clause authorizing a general levy to collect a balance due on the judgment.</p>

— D. M. AndeRSON, Judge. Aotion for damages for alleged breach of warranty and for false representations made by defendant to plaintiff in the sale of a jack for breeding purposes. There was a'general denial by defendant, and a counterclaim for damages against the plaintiff for alleged breach of warranty and for false representations made by plaintiff in the sale to the defendant of certain cows which were received by the defendant as part payment for the jack in question.

— D. M. ANDERSON and FiiANCis M. Hunter, Judges. Action in equity, for the specific performance of an oral contract by the alleged terms of which appellant agreed to furnish all of the coal appellee would require from May, 1916, to April 1,1917, at an agreed price per ton for steam and mine-run coal. Appellant, in December, refused to supply appellee with coal at the price which it is claimed was fixed by the oral contract.

<p>Appeal from Aclair District Court. — H. S. Dugan, Judge.</p> <p>Plaintiff brought action in replevin against the Greenfield Savings Bank, to recover possession of a written instrument in the form of a promissory note which he alleges was obtained from him by fraud and without consideration. Writ of re-plevin was issued, and the writing was taken thereunder and delivered to plaintiff. Before the cause came on for trial, the Commercial Savings Bank of Des Moines intervened, alleging itself to be the real owner and holder of said instrument in due course, having purchased the same before due, in goo’d faith, and without knowledge or notice of any defect in the title thereto or of any defense on part of the maker. On these allegations, the in-tervener demands that it be adjudged the owner and entitled to the possession of the note, and that the same be surrendered; or that it have judgment against plaintiff for the full amount thereof, principal and interest.</p> <p>The Greenfield Savings Bank answers that, at the time this suit was begun, it held the alleged note for collection only, on account of the intervener, from whom it had been received for that purpose, and disclaims all other interest in the subject-matter of the controversy.</p> <p>Answering the petition of intervention, plaintiff denies the same, and denies that intervener is a holder of the alleged note in due course. He further alleges that, in January, 1919, one Coughlin, an agent of a corporation known as the Associated Packing Company, fraudulently induced plaintiff to give his notes to the amount of $20,000, in two subscriptions of $10,000 each, for 200 shares of the stock of said company; and that, in connection therewith, and as an inducement to the first subscription, said Coughlin, as such agent, made and delivered to plaintiff a written agreement to resell said shares of stock for plaintiff within one year, at a net profit of $27.50 per share, and to make such sale before any of the notes given therefor by plaintiff should become due. Said writing also represented' that the said company was solvent, and would sell the full amount of $2,-000,000 stock of the packing company. This paper was signed by the “Associated Finance Company, by T. H. Coughlin.” Soon after the first subscription, plaintiff further alleges that he was, by the like representations of said Coughlin, induced to subscribe for a second block of 100 shares of said stock, with the verbal agreement that the terms of the written agreement above described should apply to the second subscription; and that the notes given by plaintiff therefor should be held and retained by said company, and not be sold or negotiated; and that, upon demand by plaintiff within 60 days, said notes would be redelivered to him, and the stock subscription canceled. In witness of this agreement, Coughlin made and delivered to plaintiff a receipt for the notes thus obtained,’ upon which receipt was written the words, “This application held by T. TI. Coughlin until option of the purchaser, namely.” One of the notes thus receipted was for $2,500, payable in one year, an'd is the same note now in litigation. Plaintiff further alleges that, within the period, of 60 days, he elected to cancel his said subscription, and demanded a return of his notes. He further alleges that Cough-lin’s statements and representations inducing him to sign said papers were false, and known to be false by said Coughlin, and made for the purpose of deceiving him, and that plaintiff was thereby deluded and induced to enter into the deal; that he has never received said shares of stock or any consideration whatever for the giving of said notes; that said packing company is bankrupt, and its affairs are now being wound up-by a receiver; that the note in controversy was delivered by Coughlin to the intervener in breach of faith, and contrary to the agreement upon which he received it; and that the same was taken over by the intervener not in good faith, and subject to the plaintiff’s defense thereto. The issues were tried to a jury, which returned a verdict for the plaintiff for the possession of the note, and the intervener appeals.</p>

<p>Appeal from Polk District Cou-rt. — Hubebt Utterback, Judge.</p> <p>Action in equity on a written contract, entered into between plaintiff as owner, and J. C. Mardis Company and J. C. Mardis, as sole proprietor of the Mardis Company, as general contractor, whereby the said contractor was to purchase all material and employ all labor necessary to complete, and to erect and complete an office building in Des Moines, Iowa, for plaintiff; and against the United States Fidelity & Guaranty Company, of Baltimore, on its bond, guaranteeing the performance of said contract by the contractor; and against a large number of persons furnishing labor and material entering into the construction of the building, under contracts made by them with the general contractor. The parties interested in the controversy, having or claiming liens against the property or liable in connection with the transaction, were made defendants, to the end that all the rights and liabilities of the respective parties interested might be determined. The result of the trial was that plaintiff was given judgment against the Mardis Company, Mardis, and the surety company for $45,539.72, made up of the following items: $19,-354.03, the total amount for which the other defendants and cross-petitioners who furnished labor and material were given judgment against plaintiff and the Mardis Company; $23,185.69, the total amount of money expended by plaintiff in completing the building, over and above the amount agreed upon in the contract, after deducting all credits due the general contractor; and $3,000 damages for delay on the part of the general contractor, at $50 per day for 60 days, after deducting the number of days’ delay for which the contractor was not chargeable. The surety company and Mardis have appealed, and plaintiff, in a cross-appeal, appeals from the judgments rendered against him in favor of subcontractors or materialmen, and from the refusal of the court to allow him damages for more days’ delay than was allowed.</p>

— L. N. Hays, Judge. ACTION at law, to recover damages for fraud and misrepresentation in the sale and exchange of real estate. Trial to a jury. At the close of plaintiff’s evidence, the trial court directed a verdict for defendant. Plaintiff appeals.

<p>Appeal from Boone District Court. — G. D. THOMPSON, Judge.</p> <p>In the district court, four cases were consolidated for trial, and such consolidated case is now presented to us on appeal. Each case below presented an appeal from an order of the board of supervisors, assessing benefits for a graveled road upon the lands included in the district. The district court materially modified the order of the board of supervisors, and from such order of modification the board has appealed.</p>

<p>Appeal from Polk District Court. — Lester E. Thompson, Judge.</p> <p>Suit in equity, to quiet title. There was a demurrer to the petition, and the plaintiff appeals.</p>

— W. G. SeaRS, Judge. PlaiNtiee claims compensation from defendant because of a bernia from strain, resulting, as be claims, from an injury sustained while performing bis work as an employee of defendant. Plaintiff’s claim was disallowed by the arbitration committee, and on review, by the industrial commissioner.

— Earl Peters, Judge. Aotion to reeover damages for wrongful discharge, on December 9, 1919, of plaintiff, who had engaged to work for defendant as a farm laborer for one year, beginning March 1, 1919. There was a trial to a jury, resulting in a verdict for the plaintiff for $50. Judgment was entered on the verdict. Facts appear in the opinion. Plaintiff appeals.

— Milo P. Smith, Judge. Aotion to recover on two promissory notes. Defense: That the notes were obtained by fraud, and that the plaintiff is not a bona-fide holder in good faith. Opinion states the facts. Judgment for the plaintiff. Defendant appeals.

— O. D. Wheeler, Judge. Suit in equity, to construe a will and to quiet title. There were answers and cross-bills by the defendants. The decree awarded the property to the defendant Harriet M. Moore, and dismissed the petitions and the cross-bills of all other defendants. The defendant Ambler appeals.

<p>1 TAXATION: Notice of Expiration óf Right of Redemption — Insufficient Affidavit. An affidavit by tlie holder of a tax-sale certificate as to the service of notice of expiration of right of redemption is fatally defective when it simply states that said notice was served, "as shown by the return," and it is made to appear that the day of service named in the return is incorrect. (Sec. 1441, Code Supp., 1913.)</p> <p>2 TAXATION: Redemption — Waiver in re Tender. A tax certificate holder whose refusal to accept a proffered redemption was based solely on the ground that he then held a tax deed to the property may not, after the redemptioner has acted on the assumption that his tender was ample, change ground and base the refusal on the ground that the tendered amount was too small.</p> <p>3 TAXATION: Redemption — Failure to Apply Redemption Funds. Failure of the county auditor to comply with the direction of a redemp-tioner to apply redemption funds to sales under wMch tax deeds would be first due, will be corrected in equity.</p> <p>4 TAXATION: Redemption — False Return of Service. A false return of service of notice of expiration of right of redemption is no return. So held where the return showed service on a day earlier than the notice was served.</p> <p>5 TAXATION: Sale — Expiration of Right of Redemption — Service on Sunday. The statutory requirement that a notiee of expiration of right of redemption from tax sale shall be served “in the manner provided for the service of original notices” forbids service on Sunday, unless the notice is accompanied by a proper affidavit that service will be impossible unless made on said day. (Sec. 1441, Códe Supp., 1913; See. 3522, Code, 1897.)</p>

<p>Appeal from Story District Court. — R. M. Wright, Judge.</p> <p>Aotion in equity, to enjoin tbe collection of special assessments levied to pay for certain work of repair and reconstruction of paving in tbe city of Ames. A decree was granted as prayed, and tbe city appeals.</p>

<p>1 BOUNDARIES: Legal Center of Section. Principle recognized that the legal center of a section is the point where a straight line connecting the east and west quarter corners crosses a straight line connecting the north and south quarter corners.</p> <p>2 ADVERSE POSSESSION: Mistaken Possession. Title by adverse possession may not be based on a mistaken possession, — that is, on a possession which the possessor intended to coincide with the calls of his deed, but which, by mistake, was in excess thereof.</p>

— P. C. Winter, Judge. Ti-ie first of the above-entitled actions is in quo warranto, to test the right to hold the office of school director in the consolidated independent school district of Hopeville, Clarke County, Iowa. Plaintiff claims that the district was never legally organized, and that, therefore, the persons claiming to have been elected directors thereof are not such officers, and that they have no right to exercise the functions.

<p>1 MUNICIPAL CORPORATIONS: Public Improvements — Contract for Assessment Under Pront-Foot Rule. A property owner who contracts that his property may be assessed for a public improvement by the "front-foot rule” necessarily abandons all right to have an assessment on the basis (1) of benefits, (2) of not to exceed 25 per cent of value, (8) of area, and (4) of uniformity with other properties.</p> <p>2 MUNICIPAL CORPORATIONS: Public Improvements — Division of Property After Contract for Assessment. A contract by an owner that his property may be assessed for an abutting improvement under the "front-foot rule” necessitates an assessment based on the theory that the entire property abuts upon the improvement, and not on the theory that an abutting part of the property subsequently sold should bear the entire assessment.</p> <p>3 MUNICIPAL CORPORATIONS: Public Improvements — Sufficiency in re Objection to Assessment. Where a property owner contracted that his property might be assessed under the "front-foot rule,” for the cost of a contemplated abutting improvement, and subsequently so divided the property by sales that only a part of the original tract abutted upon the improvement when completed, an objection that an assessment on the conveyed part for the entire cost was “unequal and inequitable” is sufficient to present the claim that the assessment on said part should be levied on the theory that the entire property, as it existed before sale, abutted upon the improvement.</p>

— E. M. Wright, Judge. Aotion on a promissory note in the sum of $2,000 executed by Anfin Weeks to the Bank of Holmes and indorsed severally by the defendants. Cause tried to the jury and verdict returned in favor of plaintiff and judgment entered accordingly. Defendants appeal.

<p>DESCENT AND DISTRIBUTION: Living Children and Grandchildren. Intestate property, in excess of cost of administrators and of dower, if any, descends to such of testator’s children and to such heirs of a predeceased child of testator as me living at the time of testator’s death.</p>

— R. M. Wright, Judge. Action at law to recover $600.13 on an alleged recission of a contract of purchase and sale of a Master truck. At the close of the testimony the court directed a verdict in favor of the plaintiff and judgment thereon was entered accordingly. Defendants appeal.

— R. M. Weight, Judge. PlaiNtiff obtained a judgment against defendant by default. Thereafter, defendant filed its application to set aside the default, which was sustained by the court. The plaintiff appeals.

— H. E. FRY, Judge. Aotion at law by plaintiff as a holder in due course on a promissory note executed by defendants. Defendants plead fraud in the inception of the note. Verdict of jury finding for the defendants and judgment for costs entered against plaintiff. Plaintiff appeals.

<p>1 PLEADING-: Action on Open Account — Presumption from Verification. A verified petition, in an action on open account, accompanied by a bill of particulars, precludes a directed verdict in favor of a defendant who stands on a sweeping unverified denial.</p> <p>2 EVIDENCE: Competency — Value not Provable by Ex-Parte Order. The value of goods may not be proven by -a written order made out by a salesman after obtaining an oral order.</p>

<p>Appeal from Boone District Court. — R. M. Wright, Judge.</p> <p>ACTION on the ease to recover damages based on the negligence of the defendants. The opinion states the facts. The trial court directed verdict and entered judgment for costs against plaintiff. Plaintiff appeals.</p>

<p>1' TRIAL: Instructions — Paraphrasing Allegations of Negligence. The court may very properly paraphrase and condense different grounds of negligence.</p> <p>2 NEGLIGENCE: Assumption of Risk — Inaccurate Plea. A plea that miners, by leaving their tools in the mine during the nighttime, assumed tlie risk of loss from the flooding of the mine, is sufficient to justify the presentation of the issue, though rendered somewhat inaccurate by being referred to as a risk "incident to the employment. ’ ’</p> <p>3 MINES AND MINERALS: Operation of Mines — Subterranean Waters. Principle recognized that the opening up of subterranean waters in mining operations may be an accident over whieh the mine owner may have no control, and for which he would not be responsible in damages.</p>

<p>ESTOPPEL: Nonrelianee on Acts of Ownership. A husband who is in fact the owner of property, but who, without making any gift of the property to his wife, allows her to deal with and handle it as her own property, may nevertheless assert his ownership against his wife’s creditor who became such long before the husband even purchased the property.</p>

<p>1 RAILROADS: Killing of Stock — Negligence and Proximate Cause as Jury Question. Negligence and proximate cause need not be established beyond a reasonable doubt. Evidence that a path of broken-down weeds led from a railroad track to the bottom of the grade incline, and that at said latter point were found the dead bodies of stock in a mangled condition, without any other explanation of the cause of death, presents a jury question on the issue whether the stock was hit by a passing train.</p> <p>2 RAILROADS: Failure to Fence — Excessive Demand for Stock Killed. When the value of stoek killed upon a railway right of way (primarily because of laek of proper right of way fence) is in issue, the court must not instruct that, if plaintiff is found to be entitled to recover, 1 ‘ he will he entitled to recover double the actual value of the stock,” even though the record shows without dispute that plaintiff served upon the defendant, in the time and manner provided by law, an affidavit of value, and that the defendant refused to pay the amount of the demand. Manifestly, the findings of the jury may demonstrate that the affidavit fixed the value clearly, though innocently, in excess of the actual value — which fact would, in itself, prevent the allowance of double damages.</p> <p>3 RAILROADS: Failure to Fence — Loss of Stock — Judgment Notwithstanding Verdict. When an affidavit as to the value of stock killed on a right of way (primarily because of the lack of a proper right of way fence) fixed the value at $400, and the jury was peremptorily told that, if plaintiff was found to be entitled to recover, he should be allowed, under the statute, double the actual value of the stock, and the jury returned a verdict for $300, a conclusive presumption is generated that the value of the stock was found to be $150, and judgment should have been entered accordingly, irrespective of any speculation as to how the jury may have arrived at their verdict.</p>

<p>1 DEEDS: Failure to Record — Subsequent Bona-Fide Purchasers. One who buys telephone poles erected on land and seeks to recover from the grantor the value thereof, on the theory that the grantor’s subsequent conveyance of the iand carried title to the poles to the grantee of the land, must establish the fact that the grantee of the land bought without knowledge of the rights of the owner of the poles.</p> <p>2 DEEDS: Failure to Record — When Subsequent Purchaser Charged With Notice. Principle reaffirmed that one who purchases real property is charged with notice of the rights of one in possession. So held as to electric light poles standing upon the land, in active use by the owner thereof.</p>

<p>1 CONTRACTS: Validity — Undue Influence. Evidence attending the assignment of practically the entire estate of an aged and enfeebled father to Ms son reviewed, and held to sustain a finding by the trial court that the same was obtained by undue influence.</p> <p>2 G-UARDIAN AND WARD: Sale by Ward Pending Guardianship. Property in the possession of a legally appointed guardian may not be sold and assigned by the ward. Especially is the court justified in holding the contract void when both parties to the contract had full knowledge of the guardianship, and when the contract by its own terms recognized the invalidity thereof, pending the continued existence of such guardianship.</p> <p>,3 CONTRACTS: Waiver and Substitution. One who enters into an executory contract for the care and'support of a person must be held to abandon all rights under the contract when, subsequent to the execution thereof, he enters into and executes a separate and different contract with the legally appointed guardian óf such person for the same care and support.</p>

<p>Appeal from Hamilton District Court — G. D. Thompson, Judge.</p> <p>The opinion sufficiently states the case.</p>

<p>1 APPEAL AND ERROR: Scope of Review — Instructions—Waiver of Exceptions. Instructions not excepted to in the trial court will not be reviewed on appeal.</p> <p>2 APPEAL AND ERROR: Insufficient Exception to Instructions. An exception to an instruction to the effect that "the court erred in giving Instruction No. 8 on the measure of damages" is wholly insufficient to raise any question.</p> <p>3 DEATH: Funeral Expenses — Evidence. The issue as to the amount of funeral expenses is properly submitted to the jury on evidence showing (1) the amount of the bills, and (2) the fact that the charges were the general charges for such services. Especially is this true when the charges in question were manifestly moderate in amount.,</p> <p>4 MUNICIPAL CORPORATIONS: Ordinances — Presumption. The enaetment of an ordinance, under Sec. 1571-m20, Code Supp., 1913, limiting the speed of automobiles on the public streets, may generate a presumption that the eity has erected the warning signs provided and required by said section.</p> <p>5 EVIDENCE: Relevancy and Competency — Condition of Place of Accident. Evidence is proper that, almost immediately following an accident, different articles of personal property having fair relation to the accident w.ere found scattered along the place of the accident, even -though no evidence was offered in the way of identifying the said articles.</p> <p>6 HIGHWAYS: Automobile Accident — Jury Question in re Negligence. Evidence reviewed, and held to present a question for the jury on the issue of the negligence of an automobile driver and of a 14-year-old child who was attempting to cross a street between intersections.</p>

<p>1 HOMICIDE: Irrelevant Testimony as Basis for Sentimental Argument. Irrelevant testimony in a murder ease by the wife of deceased to the effect that she was pregnant is improper. While such testimony may not constitute reversible error, it is error.</p> <p>2 HOMICIDE: Evidence — “Purpose” in Meeting Party — Assumption of Truth. Evidence by the wife of a deceased in a murder case relative to the purpose of herself and husband and others in meeting defendant at the time of the killing reviewed, and held to constitute reversible error, because (1) wholly irrelevant, (2) incompetent, and (3) assuming -the truth of a fact very prejudicial to defendant, of which fact there was no competent evidence.</p> <p>3 HOMICIDE: Dying Declarations — Showing in re Competency. Dying declarations of the deceased are not admissible in criminal causes, in the absence of clear proof that the deceased had abandoned all hope of living, and was fully conscious at the time of making the declarations of impending death. Evidence held insufficient to justify admission.</p> <p>4 HOMICIDE: Dying Declarations — Permissible Scope. Dying deelara-tions must be confined in their recitals:</p> <p>(1) To matters relating to the identity of the parties involved in the immediate killing; and</p> <p>(2) To matters constituting the res gestae of the killing.</p> <p>5 EVIDENCE: Kes G-estae — Mere Narrative. No fixed time or distance from the main occurrence can be established, to determine what shall be considered a part of the res gestae. Instinctiveness — spontaneity — is the ever-present requisite. A mere narrative of a past occurrence cannot be entertained. A statement by an aeeused as to how the homicide had occurred, made some 30 minutes after a homicide, and after ho had gone some distance to his home, held a mere narrative, and inadmissible.</p> <p>6 HOMICIDE: Self-Defense — Denial of Eight to Act on Appearance. An instruction that an accused may not justify a shooting on the ground of self-defense unless he was actually assaulted by the deceased is reversibly erroneous, because denying to the accused, as an ordinarily prudent person, the right to act on the reasonable appearanee of things, — the evidence showing that the shooting occurred at nighttime, and tending to show that the accused had reason to expect a murderous assault upon him by the deceased.</p>

<p>Appeal from Marion District Court. — H. S. Dugan, Judge.</p> <p>Action at law to recover loss for the death of 67 hogs owned by plaintiff and insured by the defendant insurance company. Verdict of the jury finding for the plaintiff in the stun of $1,141.62 which amount was reduced by the court to $887.06 and judgment entered accordingly. Defendant appeals.</p>

<p>1 SALES: Warranties — Jury Question. Positive and somewhat equivocal testimony attending the sale of a corn picker reviewed, and held to present a jury question on the issue of warranty.</p> <p>2 SALES: Rescission — Jury Question. Evidence attending the quite extensive use and long retention of an article reviewed, and held to present a jury question on the issue of rescission hy the buyer.</p>

<p>Appeal from Calhoun District Court. — E. G-. Albert, Judge.</p> <p>The opinion sufficiently states tlie ease.</p>

<p>HIGHWAYS: Law of Road — Jury Question in re Negligence. Evidence attending tlie driving of an automobile upon the wrong side of the street, and the action of a pedestrian, in going diagonally across the street in front of the car, reviewed, and held to present a jury question on the issue of the driver’s negligence, and of the contributory negligence of the injured person.</p>

— C. C. HamiltoN, Judge. Aotion at law, to recover upon policies of insurance. There was a trial to the court without a jury. Judgment for the defendant, and plaintiff appeals.

— H. B. Taylor, Judge. Aotion for recovery of commission for sale of real estate. Trial to the court. Judgment was rendered in favor of plaintiffs for $800, from which defendant appeals. Plaintiffs claim a contract for sale of defendant’s land, 240 acres, situated in Fayette County, Iowa, and that, in pursuance of such contract, they bargained and sold the land on June 27, 1919, to Dan B. Terry and James Bloom, at a price of $32,400, $135 per acre.

— E. B. Woodruee, Judge. Proceeding in probate, in which Emma H. Caldwell, widow of Alexander Caldwell, deceased, seeks an allowance for support, under the provisions of Code Section 3314. The trial court made an allowance of $1,200, from which order Andrew J. Caldwell, executor of the estate of Alexander Caldwell, deceased, appeals.

— T. L. Sellers, Judge. Aotion of forcible entry and detainer, to recover possession of land. Judgment for defendant, and plaintiff appeals.

<p>Appeal from Davis District Court. — C. W. YeRmilion, Judge.</p> <p>The opinion states tbe case.</p>

- — Seneoa Cornell, Judge. This is an action for damages resulting in personal injuries to plaintiff, growing out of a collision between one of defendant’s trains and plaintiff’s automobile. Trial to a jury. Verdict and judgment for plaintiff for $2,000. The defendant appeals.

<p>WILLS: Nonlapse of Devise and Bequest to Wife. A testamentary provision by a lrusband to the effect that his wife shall have one third of all his property (exactly what the statutory law of descent gives, in the absence of a will) is, in legal effect, a declaration that testator does not intend to create a devise and bequest 6y will, but intends that the wife shall take her rights under the statutory law of descent. It follows that, if the wife predeceases her husband, her heirs do not take one third. On the other hand, a testamentary provision to the effect that "the wife shall take one third of the husband’s property, and, in addition, an estate for life, or during widowhood, in the remaining two thirds, is, in legal effect, a declaration that he creates a devise and bequest, which, as to said one third, will not lapse, in ease the wife predeceases him, but which will descend to her heirs.</p> <p>Weaver, Preston, and De Grape, JJ., dissent.</p>

— George Jepson, Judge. .Aotion at law to recover damages for the death of deceased. He was a passenger in one of defendant’s taxicabs. The car was being driven by one Reed, one of defendant’s' employees. It is claimed by plaintiff that the cab was overturned,' and that deceased was killed because of the negligence of defendant and its driver. The accident happened about 4 o’clock in the morning of October 3, 1919.

— Hubert Utterbaoe, Judge. Action to set aside certain deeds on the grounds that the same were obtained by undue influence, and that the grantor was mentally incompetent to execute the same. The trial court dismissed the plaintiffs’ petition.

E. Craig, Judge. Aotion at law, to recover damages for alleged breach of contract for the exchange of property, and for other damages alleged to have been occasioned to the plaintiff by false representations by the defendant. There was a jury trial. Verdict and judgment for plaintiff, and defendant appeals.

— C. C. Hamilton, Judge. Aotion to recover damages for the use and occupation of land sold to plaintiff by appellant, who is alleg’ed to have wrongfully refused to yield possession of the property for a period of two years. Plaintiff also demanded recovery on certain items more particularly mentioned in the opinion. By order of court or agreement of parties, the cause appears to have been tried as in equity.

- — -George Jepson, Judge. The assessor fixed the actual value of plaintiff’s bridge, or that part of it assessable in Iowa and in the taxing district of Sioux City, at $360,000, and the assessable value at $90,000. The valuation so fixed was as of date of January 1, 1919. The assessment so fixed was confirmed by the board of review.

— Lester L. Thompson, Judge. Suit in equity by the plaintiffs as certificate holders of the principal defendant as a fraternal insurance association, to enjoin it from enforcing a recent by-law, purporting to increase 'the rates of assessment. After a trial on the merits, there was 'a decree for plaintiffs. The defendants appeal.

— J. W. Kintzinger, Judge. Aotion for personal injuries suffered by plaintiff by reason of a collision between an automobile in which the plaintiff was riding, and a street car which was operated by the defendant. The jury returned a verdict for the plaintiff, and defendant appeals.

' — Homer A. Fuller, Judge. PROCEEDINGS in certiorari, to’test tbe legality of tbe action of tbe district court of Ringgold County in refusing a change of venue to plaintiffs, under Section 3505, Subsection 6, of tbe 1913 Supplement, in an action brought against plaintiffs, George W. Bilbo and Mary S. Bilbo, by Bert Teale, in Ringgold County, upon a promissory note.

<p>Appeal from Butter District Court. — C. H. Kelley, Judge.</p> <p>Action for personal injuries sustained by the plaintiff in falling down a stairway in the defendant’s bank building. Verdict and judgment for plaintiff. Defendant appeals.</p>

— F. F. Dawley, Judge. Aotion for compensation under the Workmen’s Compensation Act. The industrial commissioner and the district court held that the appellee was entitled to compensation, under the provisions of said act. The executor of the estate of the employer, now deceased, appeals from such finding.

— Seneca Cornell, Judge. AotioN for damages for -personal injuries sustained by plaintiff while at work in defendant’s coal mine. There was a verdict for the defendant, and judgment was entered thereon, from which the plaintiff has appealed.

<p>1 HOMESTEAD: Wife’s Homestead Not Liable for Husband’s Debts. Evidence lield to show that the purchase price of a homestead was furnished solely by a wife, and that she was the sole owner thereof, with consequent result that the same was not liable for the debts of the husband.</p> <p>2 TRUSTS: Executed Trusts — Parol Evidence. The objection that parol evidence is inadmissible to establish an express trust becomes quite immaterial when the trust has been fully executed.</p>

<p>1 DEEDS: Undue Influence — Importunity and Persuasion. Principle reaffirmed that undue influence in the execution of a deed may not be predicated on importunities, requests, and persuasions, so long as they do not go to the point of overthrowing the will of grantor.</p> <p>2 DEEDS: Mental Incompetency — Forgetfulness and Age. Principle reaffirmed that the clear, convincing, and satisfactory showing necessary to set aside a deed on the ground of mental incompeteney is not necessarily established by a mere showing that the grantor was aged and forgetful.</p>

— W. S. Hamilton, Judge. Plaintiff appeals from the order and judgment of the court quashing the service of an original notice.

— James C. Hume, Judge. This is an appeal by the defendants from an order granting a temporary injunction. The one question for our consideration is whether such temporary writ was improvidently granted.

<p>1 APPEAL AND ERROR: Rehearing — Mandatory Nature of Notice. The statutory rule that notice of intention to petition for a rehearing must he served on both the opposite party and the clerk of the Supreme Court within 30 days after the filing of the opinion is mandatory, and in the absence of such service, the petition for rehearing will be dismissed.</p> <p>2 APPEAL AND ERROR: Waiver of Statutory Rules. Principle reaffirmed that the Supreme Court may not waive statutory rules governing appellate procedure.</p> <p>3 APPEAL AND ERROR: Extensions of Rule Time. Principle reaffirmed that applications for extension of time in which to perform acts of appellate procedure must be made before the established rule time has expired.</p>

<p>TRIAL: General Finding by Court. A general finding by the court for defendant implies that the court has found in defendant’s favor on every material issue.</p>

— J. H. Applegate, Judge. Action in equity to partition with supplemental petition to quiet title and determine the validity of certain liens on the lands in controversy. Defendants Malone and Zellmer appeal.-—

— F. F. Dawley, Judge. Aotion at law, to recover damages for the death of Charles Coleman, alleged to have been caused by the negligence of the defendant, judgment for defendant, and plaintiff appeals.

<p>Appeal from Van Burén District Court. — D. M. Anderson, Judge.</p> <p>Aotion to cancel and set aside a collateral inheritance tax assessed against the property of plaintiff. Petition was dismissed at plaintiff’s costs and judgment entered accordingly. Plaintiff appeals.</p>

<p>WILLS: Construction — Restraint on Alienation. A testamentary provision to the effect that a devisee shall not, during his lifetime, sell a fee is void, especially when testator makes no provision for a forfeiture of the fee in ease the provision against a sale is violated.</p>

— E. M. McCall, Judge. Aotion in equity for judgment for an unpaid balance of the purchase price of a land contract, and for decree of foreclosure on said contract. The trial court found in favor of the plaintiff and the defendant city of Ames appeals.

— CnAS. A. Dewey, Judge. On January 23, 1917, plaintiff filed her petition in two counts. The petition alleges that she was married to Jeff J. Henry in June, 1914. The first count alleges that, in November, 1915, plaintiff’s husband deserted her, and that prior thereto the defendant had alienated his affections. The means employed are stated in detail.

<p>VENDOR AND PURCHASER.: Injury to Property After Contract of Sale. A mutually obligatory, unconditional contract of sale of real estate, though payment, possession, and actual conveyance be postponed, constitutes the purchaser the equitable owner of the land, and such owner must bear an unavoidable and unlooked-for loss which overtakes the property prior to the day when possession is given. So held where buildings were destroyed by lightning.</p>

<p>Appeal from Poweshiek District Court.- — Chas. A. Dewey, Judge.</p> <p>Aotion in equity for the partition of real estate among the heirs of James Ramsey deceased. Judgment and decree was entered in favor of the defendants. Plaintiffs appeal.</p>

<p>Appeal from Davis District Court. — F. M. Hunter, Judge.</p> <p>ActioN for divorce. Decree for plaintiff. Defendant appeals.</p>

— P. C. Winter, Judge. Aotion in quo warranto, to test the legality of the organization of defendant school district, and to oust its officers. The basis of the action is the alleged illegality in organizing the district. The plaintiffs demanded a jury. The trial court sustained defendants’ position that plaintiffs had waived a jury trial, and a jury was denied.

<p>HUSBAND AND WIPE: Alienation of Affections — Burden of Proof. A lrusband who alleges that his stepchildren alienated the affections of his wife must establish actual, intentional, and malicious alienation. Evidence held insufficient.</p>

<p>1 TAXATION: Void Assessment. An assessment on, the corporate stock of a merchant corporation (instead of on the stock of merchandise) is void, and neeossarily is not a charge on the funds of the corporation in the hands of a receiver. (Sees. 1338, 1323, Code, 1897.)</p> <p>2 TAXATION: Assessment — Appeal—Void Assessment. A void assessment may he questioned even though no, appeal has been taken therefrom.</p>

— Osoar Hale, Judge. ACTION at law, tried to tbe court, by agreement, without a jury, to recover upon a certificate issued by defendant on the life of Jed Webster, deceased, in which plaintiff was named as beneficiary. The defendant made no contest, but asked, and was permitted by the court, to pay the amount of the policy into court. This was done, and the defendant discharged from further liability.

— W. G. Sears, Judge. Appeal from the action of the district court in confirming a special assessment for paving, levied by the city council of Onawa, Iowa, against the property of the appellant.-

<p>INJUNCTION: Public Utility Rates. A public utility should not bo temporarily enjoined irom charging a rate in excess of the rate fixed by ordinance when it is made to appear (1) that the ordinance rate is, prima facie, confiscatory; (2) that the council, on proper application by the utility, has refused to entertain so much as an investigation into the inadequacy of the ordinance rate; and (3) that the utility offers to deposit the excess charge with a trustee until final decree is entered.</p>

— ¡George Jepson, Judge. Suit to foreclose a mechanics’ lien for labor. There was a decree for plaintiff, and the defendants appeal.

— F. D. Letts, Judge. Aotion for damages for suing out a search warrant under which plaintiff’s premises were unlawfully searched. There was a judgment upon verdict for $479, and the defendant appeals.

<p>Appeal from Iowa District Court. — E. G. Popham, Judge.</p> <p>Appeal from an award under the ’Workmen’s Compensation Act. The facts are fully stated in the opinion.</p>