Volume 195 — Iowa Reports

<p>Appeal from Polk District Court. — Hubert Utterback, Judge.</p> <p>This was an appeal to tbe district court from tbe action of tbe city council, levying an assessment for improvements on West Forty-seventh Street in defendant city. Plaintiff bad filed ber objections to tbe proposed assessment by tbe council, wbieb assessment was thereafter duly levied. Tbe property involved was Lots 32 to 36, inclusive, of Waveland Place. Tbe appeal to tbe district court was tried in equity. After bearing, the trial court ordered that tbe assessment against Lots 33,' 34, and 36 should stand as originally made by the council,- that tbe assessment against Lot 32 should be reduced from $520.05 to $450; and that tbe assessment against Lot 35 should be reduced from $441.96 to $325. Plaintiff appeals.</p>

<p>Appeal from, Louisa District Court. — Oscar Hale, Judge.</p> <p>The defendant was indicted for the crime of larceny. Verdict of jury finding the defendant guilty, and he was sentenced to the penitentiary for the statutory period. Defendant appeals.</p>

<p>Appeal from Poweshiek District Court. — Charles A. -Dewey, Judge.</p> <p>'< Action in equity for the reformation of a policy of fire insurance and the recovery of judgment thereon. Decree was entered for the plaintiff.</p>

<p>Appeal from Woodbury District Court. — Miles Newby, Judge.</p> <p>Action in equity, to restrain defendants from occupying a strip of ground claimed to be within the boundary of a tract owned by plaintiff. Defendants pleaded acquiescence, estoppel, and the establishment of the boundary line by agreement. Decree was entered in favor of the plaintiff, and defendants appeal.</p>

<p>Appeal from Poweshiek District Court. — H. F. Wagner, Judge.</p> <p>Proceedings in garnishment under execution. The answers of the garnishee were controverted under the statute, and upon trial, the court awarded judgment against the garnishee, and it appeals.</p>

<p>Appeal from Osúeola District Court. — C. C. Bradley, Judge.</p> <p>Action to recover damages for tbe death of plaintiff’s intestate. There was a verdict for the defendant, and the plaintiff appeals.</p>

<p>1 BILLS AND NOTES: Negotiability — Omission, of Revenue Stamps. Principle reaffirmed that the negotiability of a promissory note is not destroyed by the mere fact that the Federal revenue siamps are not affixed thereto.</p> <p>2 TRIAL: Taking Case From Jury — Directed Verdict on Note. The in-dorsee of a negotiable promissory noté is necessarily entitled to judgment against the maker when there is no evidence to sustain either (1) the pleaded issue of fraud in procuring the note or (2) the impleaded (but submitted) issue of fraud in negotiating the note.</p> <p>3 BILLS AND NOTES: Holdership in Due Course — Note as Part of Executory Agreement. Knowledge on the part of the indorsee of a negotiable promissory note that the note had been executed pursuant to an unperformed executory agreement (i. e., to convey land at a future date) is not sufficient, in and of itself, to charge the indorsee with notice of any fraud or bad faith on the part of the original payee and indorser.</p>

<p>Appeal from Sioux District Court. — C. C. Bradley, Judge.</p> <p>Appeal from an award for damages in condemnation proceedings for the construction of a public highway.</p>

<p>Appeal from Poweshiek District Court.&emdash;H. F. Wagner, Judge.</p> <p>Action against executors of the estate of one Latcham, to establish a claim on a promissory note. Claimant is the wife of decedent. On a hearing, the trial court disallowed the claim, and claimant appeals.</p>

— D. W. Hamilton, Judge. Action at law upon four promissory notes, aggregating $11,000, and each signed by the eight defendants. The plaintiff was not the payee of the notes, but took the same as an alleged holder in due course. The defendants pleaded that the notes were obtained from them by fraud, and that they were negotiated in breach of faith, and without authority. The trial court directed a verdict for the defendants. The plaintiff appeals.—

<p>Appeal from Keokuk District Court. — H. F. Wagner, Judge.</p> <p>This is an action upon a policy of insurance. Tbe defense was a general denial, and tbe further affirmative defense that the policy of insurance was obtained by fraud and misrepresentation, and that the conditions of the policy were violated after the issuance thereof. At the close of plaintiff’s evidence, the trial court directed a verdict for the defendants, and the plaintiffs appeal.</p>

<p>Appeal from Mahaska District Court. — H. F. Wagner, Judge.</p> <p>Dependant was indicted, tried, and convicted of murder in tbe first degree, and sentenced to imprisonment for life in tbe penitentiary, from wbicb sentence this appeal is prosecuted.—</p>

— W. G. Sears, Judge. Indictment for grand larceny. The indictment charged that the defendant did feloniously steal and carry away one Ford touring car of the value of $500, and the property of J. E. Hambliu, and that said property was in the possession of Yirgil Keefe at the .time of the taking. There was a verdict of guilty and judgment thereon, and defendant appeals.

— W. G-. Sears, Judge. Appellant was indicted for the offense of aiding and assisting prisoners to escape from jail. He was convicted, and appeals.

— F. D. Letts, Judge. The indictment charged defendant with the crime of lewd, immoral, and lascivious acts with a child. The jury returned a verdict of guilty, and the court entered sentence of imprisonment in the penitentiary for not more than three years, as provided by Section 4938-a, Supplement to the Code, 1913, from which judgment, defendant prosecutes this appeal.

— W. G. Sears, Judge. Action at law, to recover $1,500 deposited with' a bid for the construction of a certain building as a guaranty that plaintiff would enter into a contract if the same was awarded to him. A verdict was returned for the plaintiff, and defendants appeal.-

<p>1 WAREHOUSEMEN: Injury to Property — Applicability of Evidence. In a two-count action against a warehouseman for neglect in the care of the property, testimony tending, under one count, to show neglect in carrying out a special agreement as to the eare of the property may also be admissible in prima-faeie support of the second count, based on the warehouseman’s statutory ■ duty; and in such ease it would necessarily be error to dismiss the said seeond count, for want of evidence.</p> <p>WAREHOUSEMEN: Negligence&emdash;Presumption. Tlie presumption of 2 negligence on the part of a warehouseman who receives personal property in good condition and redelivers it in a damaged condition, applies only when the property is of such a nature that loss or damage cannot ordinarily oecur without negligence.</p>

<p>1 PARTITION: Sale (?) or Partition in Kind (?) An order to the effect that property eannot be equitably divided in kind, but should be sold, based in large part on the fact that numerous mortgages exist on the entire property, is not impeaehed by the naked assertion of an owner that it can be so divided.</p> <p>2 PARTITION: Reference in re Division in Kind. Referees need not be appointed to pass on the question whether the property may be equitably divided in kind, when it is shown to the court at the trial that such division cannot be made.</p>

- — George W. Cullison, Judge. Action to recover on a bond given to plaintiff by defendant. Jury was waived, and case tried to the court. Facts appear in the opinion. Judgment was entered on the bond, from which judgment, defendant appeals.

— James De Land, Judge. Plaintiee sued to recover $20,000 actual and .exemplary-damages for libel. The opinion states the case. Trial to a jury. Verdict and judgment for defendants. A number of special interrogatories were also propounded to and answered by the jury. Plaintiff appeals.

<p>Appeal from Polk District Court. — Joseph E. Meyer, Judge.</p> <p>Proceeding under the Workmen’s Compensation Act. It was ordered therein by the industrial commissioner that the defendant continue to pay compensation to the plaintiff, as the surviving spouse of an injured workman, notwithstanding that she had remarried since the death of such workman, and was. no longer dependent for support upon the compensation originally awarded to her. Upon appeal by the defendant to the district court, such order was affirmed there. From the judgment of the district court, the defendant has appealed to this court.</p>

<p>1 TAXATION: Inheritance Tax — Exemption. That clause of Sub. (e) 1 of Sec. 5, Oh. 38, 39 G. A., which provides that, “if an estate tax * * * was collected from such estate,” means (if it means anything) the same as though it read, “if an inheritance tax * * * was collected from sueh share of the estate.” This subsection inaccurately expresses the idea that inheritance taxes will not be imposed oftener than once in two years upon the passing of the same property in successive inheritances.</p> <p>2 TAXATION: Inheritance Tax — Burden in re Exemption. An heir has 2 the burden to show that lids inheritance is exempt from an inheritance tax.</p>

<p>Appeal from Boone District Coiort. — R. M. Wright, Judge.</p> <p>Action to quiet title to certain real estate. A demurrer to defendant’s answer was overruled. The plaintiffs elected to stand upon the petition, and judgment was entered for the defendant. Plaintiffs appeal.</p>

<p>APPEAL AND EEEOR: Right of Eeview — Instituting New Action. A plaintiff may not appeal from a judgment in abatement of his action when, immediately following said adverse judgment, he institutes a new action on the same claim, under facts which avoid the former plea in abatement.</p>

— H. B. Fry, Judge. Action by a subcontractor, to foreclose a mechanics’ lien for material furnished to the principal contractor. Defendants deny that the lien was filed within statutory time, and plead a full settlement with the principal contractor, and knowledge thereof by the plaintiff before said lien was filed. They also contend that the last item furnished by plaintiff was not furnished in good faith, but for the sole purpose of attempting to secure a lien.

<p>1 WITNESSES: Cross-Examination — Permissible Exclusion. . Whether a reward had been offered for the capture of burglars is not cross-examination of testimony confined exclusively to the condition of the banking rooms on the morning following the burglary.</p> <p>2 CRIMINAL LAW: Continuance — Admission to Avoid. An unsueeessful effort on the part of the county attorney to defeat a motion for a continuance, by conceding that the testimony of certain witnesses whose names were indorsed oh the indictment was irrelevant, incompetent, and immaterial, is no obstacle to the offering of such testimony at a subsequent term.</p> <p>3 CRIMINAL LAW: Evidence! — Incriminatory Declarations by Third Party. Declarations which are incriminatory of the accused on trial, and in his immediate presence, but made by a third party, are admissible for what they are worth.</p> <p>4 CRIMINAL LAW: Evidence — Demonstrative Evidence. Record re-viewed, and held to justify the reception in evidence in a burglary case of certain gas tanks, rubber hose, and acetylene torches.</p> <p>4 TRIAL: Instructions — Correct But Not Elaborate. Instructions which 5 are correct are all-sufficient, in the absence of a request for elaboration.</p>

<p>EMBEZZLEMENT: Evidence — Sufficiency. Testimony relative to a charge of embezzlement of corporate stock by an agent reviewed, and held ample to support a verdict of guilty.</p>

— J. J. Clark, Judge. Action for damages for a personal, injury resulting to plaintiff by reason of a collision with defendant’s automobile. The defense was a general denial. At the close of plaintiff’s evidence, the trial court directed a verdict for the defendant, and entered judgment accordingly. The plaintiff appeals.—

<p>Appeal from Polk District Court. — Lawrence De Graee, Judge.</p> <p>Action of right to obtain possession of real estate. Defendant denied plaintiff’s title to the premises, and claimed ownership and right of possession in himself. The court entered a decree providing for performance of an outstanding contract between the parties. Plaintiff appeals.</p>

<p>CONTINUANCE: Admission to Avoid — Effect. The State, after admitting that a named person would, if present, testify to certain alleged faets, as recited in an affidavit for a continuance, may not, under any circumstances, show by cross-examination, or assert in argument: (1) That such person is a myth; or (2) that, if he is not a myth, he would not, if present, testify as the State has admitted he would testify. The State may, however, always show that the statements or matters to which the absent witness would testify, if present, are not true.</p>

— H. E. Taylor, Judge. Suit in equity, for foreclosure of mortgag'e and other equitable relief. Decree granting foreclosure as prayed, but attaching thereto certain conditions, to which the plaintiff and the de- fendants Miller and wife except. The nature of the controversy-will be more fully stated in the opinion.

<p>RAILROADS: Operation — Inadequate Bridge Opening. A mihvay 1 company must exercise reasonable care to provide bridges which will permit the free flow of such waters as may reasonably be expected. Instructions reviewed, and held not to make the railway company an insurer of the sufficiency of the bridge openings.</p> <p>TRIAL: Instructions — Repetitions. Requested instructions are prop-2 erly rejected when they consist of a repetition, under the guise of new phraseology, of full and definite instructions on the same point already given by the court.</p>

— Charles A. Dewey, Judge. Action to recover damages for an injury caused by a collision between an automobile driven by the plaintiff and a railroad train, at a street crossing. Verdict for the plaintiff, and defendant appeals.

— C. C. Hamilton, Judge. In the district court, this was an appeal from an order by the Iowa industrial commissioner, under the Workmen’s Compensation Law, whereby an award of compensation was denied to the applicant, the appellee herein. The trial court reversed the order of the industrial commissioner, and ordered an allowance of compensation for six weeks, and a further allowance for a proposed surgical operation.

<p>Appeal from Woodbury District Coiirt. — C. C. Hamilton, Judge.</p> <p>Defendant was convicted of the crime of breaking and entering, and sentenced, from which sentence this appeal is prosecuted.</p>

<p>1 INTOXICATING LIQUORS: Bootlegging — Evidence. Evidence re-viewed, and held sufficient to present a jury question on the issue whether defendant was guilty of the crime of bootlegging.</p> <p>2 CRIMINAL LAW: Testimony of Accomplice — ^Instructions. Instruetions on the subject of corroboration of an accomplice are not rendered improper because of the omission of the statutory language to the effect that ‘ ‘ corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof. ’ ’</p> <p>3 INTOXICATING LIQUORS: Possession — Evidence. Evidence held to show possession of intoxicating liquors on the part of the accused.</p> <p>4 CRIMINAL LAW: Parties to Offense — Joint Enterprise. Record held to amply justify the court in advising the jury as to the law applicable to a joint criminal enterprise.</p>

— C. C. Hamilton, Judge. Action for damages for fraudulent representations in the sale of real estate. At the close of plaintiffs’ evidence, and upon the motion of the defendants, the trial court abated the action for want of jurisdiction, on the ground that the plaintiffs had obtained apparent jurisdiction of the defendants only by resort to deceit and trickery. Judgment was entered against the plaintiffs for costs, and they appeal.

<p>1 LANDLORD AND TENANT: Actions — Lien—Priority Over Purchaser. In a contest between a landlord and a purchaser of property after it had been taken and used upon the leased premises, the exact time of purchase is quite immaterial. The all-controlling question is the exempt or nonexempt character of the property.</p> <p>2 LANDLORD AND TENANT: Actions — Intervention—Necessary Allegations. An intervener in a landlord’s attachment who claims an automobile by purchase from the tenant, who had used the same on the leased premises, must (1) allege and (2) prove that the automobile was exempt to the tenant.</p>

— J. D. Wallingford, Judge. The plaintiff bank, as assignee of George F. Lambert & Company, sued the defendant county for the recovery of an amount alleged to be due from the defendant upon a contract made between tbe defendant- county and said George F. Lambert & Company. There was a directed verdict and judgment for defendant, and plaintiff appeals.

— Lorin N. Hays, Judge. Action in equity, to recover upon a promissory note and to. enforce a lien for the payment thereof upon certain shares of bank stock. Decree as prayed, and defendant appeals.

<p>1 BILLS AND NOTES: Holder In Due Course — Burden of Proof. Proof on the part of the maker of a negotiable instrument that it was given as the purchase price of certain goods which the payee at the time knew he could never furnish, establishes such fraud as to cast upon the holder the burden to show that he was a holder in due course.</p> <p>2 APPEAL AND ERROR,: Waiver — Insufficient Defense. The objection that the defense pleaded is insufficient in law is waived by failure to question it in the trial court.</p> <p>3 COSTS: Taxation — Fee for Rejected Witness. Pees for a witness called in good faith by the successful party may be taxed against the losing party, even though the testimony of such witness was,, to a great extent, excluded.</p>

<p>Appeal from Marshall District Court. — James W. Willett, Judge.</p> <p>Suit in equity, whereby it is sought to adjudicate the question of title to certain five certificates of stock for 10 shares each, of the Iowa Railway & Light Company. The defendant, Fanny Williams, claims the ownership of the stock as a donee from the original plaintiff, Miller. The question presented upon the record is whether there was a completed gift of these certificates. Decree went for the plaintiff, and defendant appeals.—</p>

<p>1 MUNICIPAL CORPORATIONS: Governmental and Proprietary Functions — Negligence in re Waterworks. A city is liable in damages consequent upon the act of its board of waterworks trustees in negligently maintaining, as a proprietary function, the instrumentalities of a municipally owned waterworks plant, even though said instrumentalities are also employed as a governmental function.</p> <p>2 MUNICIPAL CORPORATIONS: Officers, Agents, and Employees— Waterworks Trustees as Agents. The board of waterworks trustees (Ch. 288, 38 G. A.) is simply the agent of the city.</p> <p>3 NEGLIGENCE: Contributory Negligence — Failure to Guard Against Flood. A property owner, in an action against a city for damages consequent upon the negligent maintenance of a city:owned hydrant, may not be said to be guilty of contributory negligence per se because he locates his building on ground lower than the graded level of an adjacent street, or because he failed to construct his building with water-tight doors and windows, or to provide a drain for escaping waters.</p> <p>4 TRIAL: Special Interrogatories — Nondeterminative Facts. There need be no submission to a jury of interrogatories which do not call for ultimate.facts determinative of some issue.</p> <p>5 EVIDENCE: Hearsay — Withdrawal. Hearsay testimony which is no part of the res gestae is properly withdrawn from the jury.</p>

<p>FALSE PRETENSES: Instructions&emdash;Element of Intent. Under an 1 indictment for false pretenses, instructions relevant to the element of "intent” are sufficient which declare that the State must prove "beyond a reasonable doubt that false representations were knowingly made by the defendant with the specific intent to defraud. ’ ’</p> <p>2 TRIAL: Instructions — Correct but Nonelaborate. Instructions which are correct are all-sufficient, in the absence of a request for elaboration.</p>

<p>1 CRIMINAL LAW: New Trial — Death of Reporter. Defendant’s in-ability, owing to the death of the official court reporter, to present, on appeal in a criminal case, a transcript of the trial court record will not be recognized as cause for a new trial, when the record is substantially presented by an abstract of the defendant’s own making, together with an undenied amendment thereto.</p> <p>2 CRIMINAL LAW: Appeal and Error — Presumption. It will be presumed that the court had some proper reason for excluding testimony, when the appellant does not show by the record what the reason or objection to the testimony really was.</p> <p>3 CRIMINAL LAW: Trial — Instructions—Alibi. The rights of a defendant relative to a claimed alibi are sufficiently guarded by instructions to the effect that he must establish the alibi by a preponderance of the testimony, but that the jury must acquit if, on the whole record, it has a reasonable doubt as to the defendant’s guilt.</p> <p>4 CRIMINAL LAV/: New Trial — Newly Discovered Evidence. Newly discovered evidence of an impeaching character, and on a collateral issue, is not ground for a new trial.</p> <p>5 CRIMINAL LAW: Argument and Conduct of Counsel — Presumption. The county attorney’s argument will be presumed to be justified by the record, in the absence of some showing to the contrary.</p>

<p>Appeal from Union District Court. — P. C. Winter, Judge.</p> <p>Quo warranto, to test the legality of a franchise granted appellee at the general election held in the city of Crestón, November 2, 1920. The case was tried to a jury; but, at the close of the plaintiff’s evidence, upon motion of appellee, the issues were withdrawn from the jury, and, after the introduction of defendant’s testimony, the court dismissed plaintiff’s petition. Plaintiff appeals.</p>

— Joseph E. Meyer, Judge. A suit in equity for an accounting. It is contended that the parties hereto were engaged in a joint adventure in the construction of the cantonment at Camp Dodge, the government contract for which was taken in the name of the defendant Charles Weitz’ Sons. The court denied the relief sought. The facts appear in the opinion.