Volume 34 — Iowa Reports

The petition of plaintiffs states that the defendant being the owner of. land, on which the town of Kossuth, in Des Moines county, now stands, laid off the said land into town lots, streets, squares and alleys, as shown on the plat annexed to the petition, and dedicated said streets, squares and alleys to the use of the public and the citizens of said town; that after said town was so laid off and said streets, etc., dedicated as aforesaid, the plaintiff Tost became the…

The plaintiff, in his petition, alleges that he is the owner in fee simple of certain lands described, and entitled to the immediate possession thereof, and that defendant wrongfully and unlawfully holds possession of the same. Judgment for the - possession and damages is demanded.

The German Catholic Congregation of Iowa City is a voluntary association, unincorporated, and composed of many members. Held: resolved to sell block 34 for the payment of the debts incurred, and appointed Charles A. Yogt and William Louis to conduct the sale. These parties, not being able to effect a sale, executed and delivered to William II. Hubbard, as trustee of the creditors, a deed of trust of said block.

Appeal from Henry District Court. The defendant was indicted, tried, convicted and sentenced for the crime of seduction, and he appeals.

Action to recover for injuries received by falling into an excavation in tbe sidewalk, alleged to bave been carelessly and negligently left unguarded. Tbe defendant denied tbe allegations of carelessness, etc., on its part, and averred that plaintiff was careless and negligent. Trial to jury; verdict and judgment for plaintiff for $2,000. Tbe defendant appeals.

The petition alleges that on tbe 3d day of June, 1863, a contract in writing was made and entered into between the county of Boone and tbe plaintiff, tbe material portion of wbicb is as follows: “Tbe county of Boone,in the State of Iowa, * * * for tbe purpose of making, or aiding in making, tbe Cedar Rapids and Missouri River railroad through said county of Boone, has tbis day bargained and sold, and by these presents does bargain and sell, to tbe said party of tbe second…

The plaintiff filed Ms petition in the district court of Polk county, praying the specific performance of the contract hereinafter set out, entered into between the county of Cerro Gordo and P. C. D. McKay.

This cause was submitted to the court below, for the purpose of determining the question of the defendants’ liability, upon an agreed statement of facts of which the following is the substance, to wit: George O. Merrick was the owner of lot 286 in the city of Ottumwa, and commenced the erection of a brick building thereon.

S. Stout, do hereby sell to-John M. Folger, all my right, etc., in the hotel known as the Des Moines House, for the consideration of one thousand dollars.

The plaintiff, William Plunt, recovered judgment against Jonas Hoover, one of defendants, in the district court of Mahaska county, in October, 1867, upon an indebtedness which accrued in 1865, growing out of a sale of a patent right for which Hunt paid Hoover $3,000, in which sale Hunt claimed he had been defrauded, and recovered judgment against Hoover thereon. James M. and William Hoover are sons of Jonas Hoover.

This action was commenced before a justice of the peace on written petition, in which plaintiff claims damages by reason of the cattle of defendant wrongfully breaking and entering his close and destroying his crops. The answer, also in writing, denies specifically each allegation in the petition. There was a trial before the justice, and judgment for the plaintiff.

This action was commenced October 15, 1870, to foreclose a mortgage, executed May 11, 1848, to the school fund commissioner of Des Moines county, by A. E. Harker and wife, on lot No. 150, in the city of Burlington ; given to secure a note for $300, money loaned by said commissioner to said Harker, due May 11, 1851, with ten per cent interest; judgment was asked for the $300, with interest from January 1, 1869.

Action upon a policy of insurance on a stock of saddlery, leather, tools, etc., in Keokuk. The petition contains the usual averments of tbe execution of tbe policy, tbe loss, tbe proof of loss, non-payment, etc. Tbe answer is in denial, and also averring a warranty contained in tbe application, and a breach of it; fraudulent overvaluation; false statements in proof of loss, and assignment of tbe policy after loss, contrary to its express conditions.

This is an action to recover of the estate of Alfred Reeves, deceased, the amount of a judgment obtained by John Tresler against said Alfred Reeves on the 25th day of October’, 1857. The cause was before this court at the December term, 1870, on appeal from the ruling of the district court sustaining a demurrer to a petition in equity ashing that the lien of the judgment be revived. This ruling was held to be erroneous and the cause remanded.

The plaintiff brought his action before a justice of the peace, to recover, under section 6, chapter 169, Laws of 1862, double the value of a steer alleged to- have been hilled by the defendant’s cars on the line of its road, at a place where the road was not fenced, and where the defendant had a right to fence. Judgment was rendered for plaintiff for $60.00.

Action at law to recover for work and labor done, and materials furnished by plaintiff in building a catholic church. The petition alleges the performance of the work, the furnishing of the materials, and defendant’s promise to pay therefor. The answer of defendant admits plaintiff’s employment, but denies the other allegations of the petition.

This action is brought to recover of the defendants the value of certain promissory notes, which she alleges were wrongfully and fraudulently obtained by the defendants from her possession, and by them converted to their own use.

Action in equity to enjoin the sale for taxes of certain lands belonging to the plaintiff and situated in Carroll county, and to set aside previous sales thereof for taxes. The county of Carroll, its treasurer, and the purchasers at the previous sale, are made parties defendants.

Ordinary action for the recovery of real property — certain premises in the city of Des Moines. The defendant R. G. Orwig denies plaintiff’s ownership, and avers that he is in possession as tenant of one Samuel Orwig of Union county, Penn.

. The plaintiff instituted suit in tbe Mills circuit court against the defendant on a promissory note, and obtained an attachment upon the ground that defendant had disposed of his property in part, with intent to defraud his creditors.

Ajpjoeal from Clarice Circuit Court. The plaintiff filed in tbe circuit court of Clarke county a petition, claiming of the defendant the sum of $2,300.20 upon an account, the various items of which were attached to the petition.

Action of replevin for a quantity of beer. Petition alleges that plaintiff “ owned and kept the same with lawful intent, and not for the purpose of sale in violation of law.

The defendant was indicted for the murder of Ms father, John Porter. At the August term, 1869, of the Madison district court, he was tried, found guilty of murder in the second degree, and sentenced to imprisonment in the penitentiary for twenty years. Defendant appeals. The neees - sary facts are stated in the opinion.

This action is brought to enjoin the collection of taxes levied by the county, defendant, upon the S. E. J of Sec. 6, Township 81 N. of R. 30, west of 5th p. m., it being a part of the lands granted by congress to Iowa for Agricultural College purposes. The defendants demurred to the petition, which was overruled; and, standing upon their demurrer, judgment was rendered as prayed for in the petition. The defendants appeal.

Appeal from, Lee District Court. The defendants were indicted and convicted for obstructing a highway, and appeal to this court.

Action to recover tbe possession of a part of lot 260, in the n°Ubern addition to the’ city of Burlington, being a strip of about the width of fifteen feet, of the south end of said lot, Trial to the court without a jury, and judgment for plaintiff. Defendant appeals.

Action to recover for personal injuries to the plaintiff, caused by a collision of defendant’s engine and train of cars with the plaintiff’s wagon, in which he was riding, at a highway and railroad crossing. The plaintiff, in his petition, alleged his own care, the defendant’s negligence, and the resulting injury. The defendant, by answer, denied the plaintiff’s allegations specifically. There was a jury trial, with verdict and judgment for $5,000 for plaintiff.

The plaintiff and appellant in bis petition avers that the city of Dubuque procured the grading, paving and macadamizing of a public street in said city, in pursuance of a contract made with one Byer, which was approved by the city, and assigned by Byer to Rebinan; that out-lot No. 692 of the city is owned by the defendants, and is abutting upon the street so improved; that the city council has levied a special tax or assessment on said lot as defendant’s share of the cost…

On tbe 18th day of August, 1853, Samuel E. Vinton and Eitz Henry Warren entered into a contract as follows: “Memorandum of an agreement entered into this 18 th day of August, 1853, between Samuel F. Yinton of the first part, and Fitz Iienry Warren of the second part, witnesseth, that the said Yinton agrees to furnish, by the 15th of September next, for investment in the public lands of the United States, in the State of Iowa, at the minimum price, on or near the line of the…

It is alleged ia tbe petition, that on the 81st day of December, 1861, the hoard of supervisors of Olay county, Iowa, allowed to J. Hindelspeyer the sum of $500 as money due him for materials furnished and labor performed for the county, and ordered their clerk to issue warrants therefor, which action of the board, was, and is, duly recorded; that by virtue of such authority the clerk issued a warrant for $250, dated December 31, 1864, No. 346, and signed the same, but…

Action upon a promissory note. Trial to the court without a jury. Judgment for plaintiff. Defendant appeals. The facts involved in the points ruled by the court appear in the opinion.

The applicant for the writ of habeas corpus in this case, John S. Curley was, at the March term, 1811, of the district court for Polk county, convicted of the crime of nuisance, and was sentenced to pay a fine of $800 and costs; and in defaidt of payment to stand committed to the county jail for the period of two hundred and forty days, unless the same was sooner paid. .

Action In chancery to quiet in plaintiff the title of certain lauds. Upon a hearing the relief prayed for by plaintiff was denied, and a decree accordingly entered. Certain taxes paid by plaintiff upon the land were adjudged to be repaid him, and the same declared to be a lien upon the property. Plaintiff appeals. The facts of the case appear in the opinion.

These are actions in chancery, prosecuted by the several plaintiffs, to restrain the city of Davenport from the collection of certain municipal taxes assessed and levied upon certain real estate within the corporate limits of the city. Decrees were rendered by the district court in each case restraining the collection of the taxes upon the property of the plaintiffs, involved in the respective actions.

Action to recover for the alleged uegligeut grading and improving the streets of defendant, and suffering the gutters to become filled with debris, whereby, it is claimed, plaintiff’s propery has been overflowed and injured. Answer in denial. Jury trial. Yerdict and judgment for defendant. Plaintiff appeals. The necessary facts are stated in the opinion.

This action was commenced before a justice of the peace, and is based upon a promissory note made by defendant to plaintiff, payable fourteen months after date, with a condition that if not paid when due, it should bear ten per cent interest from date. No place of payment was specified in the note. The justice of the peace rendered judgment for plaintiff for the balance due upon the note, with interest from date. A like judgment was also rendered in the circuit court.

This is a suit in equity brought by Thomas Scott and others, citizens and tax payers of the city of Davenport, against the city, for the purpose of restraining it, by injunction, from issuing the bonds of the city for the sum of $300,000, for the purpose of borrowing money to erect “water-works ” in and for the use'of the city, which, it is alleged, the city authorities are about to issue contrary to law.

The petition shows that the plaintiff is the widow of Charles Metteer, deceased, who died November 30,1870.,' that the deceased left a will containing the. following pro-, vision for the plaintiff : “ After the payment of my debts, I give' and bequeath to my wife, Zilpha Metteer, all my property, real and personal, except what is hereinbefore devised; to be held by her during her natural life, for her sole use and benefit.

Action before a justice of tbe peace to recover damages for the alleg-ed forcible seizure aud detention of five hogs, the property of plaintiff. Answer in general denial, and that the defendant, as the acting sheriff of Johnson county, in virtue of an execution issued from the district court of said county, levied upon and took possession of, and holds said hogs as the property of B. W. Byington, to be dealt with according to law; judgment for plaintiff.

Action at law to recover damages for the breach of an. alleged contract for the sale and conveyance of certain real estate. The contract, as claimed by plaintiff, was made by correspondence between the parties, the plaintiff being in Dubuque, and the defendant in Washington city. The negotiation was commenced by plaintiff writing to defendant in May, 1866; the precise terms of this letter do not appear in the evidence, at least the parties do not agree as to its contents.

This is an action upon a policy of insurance on the life of James A. Miller, late husband of plaintiff. There was-a verdict and judgment for plaintiff. Defendant appeals.

Action for the recovery of expenses incurred by plaintiff in constructing a sidewalk in front of a lot owned by defendant, pursuant to the provisions of the charter and certain ordinances of the city of Davenport. The answer of defendant sets up in substance that he is, and for many years has been, the owner of said lot, situated in the most populous portion of the city.

Action to recover for the wrongful conversion of certain wheat alleged to have been stored with defendants. Yerdict and judgment for defendants. Plaintiff appeals. The further facts are stated in the opinion of the court.

Appeal -from.Buchanan District Oou/rt On the 3d day of March, 1811, the plaintiff filed in the Buchanan district court a petition alleging in substance that, December 1, 1869, Ingraham, Kennedy and Day commenced an action in the circuit court of Buchanan county against this plaintiff and the defendant S. L. Wilmer, on a claim of $1,200, for lumber sold and delivered to them as copartners in business.

<p>Attorney : power to stipulate. Stipulations made in open court by the attorney of a county, in respect to a cause therein pending against the county, are, when authorized and free from fraud, valid and binding, and cannot be repudiated by the successors in employment of the attorney who made the agreement while acting in behalf of the county. So held, in respect to an agreement thus entered into, that a certain case should abide the result of another cause then pending against the county in the same court.</p>

The plaintiff brought his action against the defendant Collins, on a judgment rendered in Wisconsin, in which action an attachment was asked and issued. The sheriff levied the attachment on certain real estate described in his return. The levy was made December I, 1810.

The petition states plaintiff’s cause of action to he as follows: One Hannah Davis recovered a judgment against A. W. Davis, in the district court of Bremer county, which was a lien on certain lands. The plaintiff, however, became the owner of one-half of the judgment by assignment from the plaintiff in the judgment. An execution was issued thereon, and put into the hands of defendant Connor, who was the sheriff.

<p>Jurisdiction: on appeal: waiver, of objections: foeeign judgment. A justice of the peace'of the State of Wisconsin failed to render judgment on a verdict for plaintiff returned by the jury impaneled to try the cause. The defendant appealed to the county court, where both parties appeared and entered upon a trial of the cause, without any objection on the part of either that no appeal lay from the verdict of thejury; and judgment was rendered against plaintiff. Held, in an action in one of the courts of this State, on the transcript of such judgment and proceedings, that the appearance of the parties and their going to trial on the merits, gave the appellate court jurisdiction of their persons, and rendered its proceedings and judgment valid, it appearing that such court, under the laws of Wisconsin, would have had jurisdiction to try the cause had it been originally commenced there.</p>

<p> Appeal from Bucha/uan Circuit Court. </p> <p>The facts sufficiently appear in the opinion.</p>

This is an action in chancery. The petition alleges that plaintiffs are the owners of lot 404, in the city of Dubuque, which lies upon a street or highway running along a navigable slough connecting with and being a part of the Mississippi river, so that said street or highway, and nothing more, is between plaintiffs’ property and said navigable water.

Action by plaintiffs to recover the consideration paid by them to defendant for intoxicating liquors, sold in violation-of law by the defendant to the plaintiffs, who also purchased the same for a re-sale in violation of law. Trial to a jury resulting in a verdict and judgment for plaintiffs for $385.83. The defendant appeals.

On tbe 1st day of October, 1866, tbe defendant was appointed administrator of tbe estate of Charles Seymour, deceased, and letters of administration were issued to him on the same day. Publication of notice of administration was completed March 1, 1867. On the 13th of April, 1869, the plaintiff placed notice of her claim against the estate in the hands of the sheriff for service, and on the 19th of April her petition was filed.

Action to recover certain real estate. Judgment for plaintiff. Defendants appeal. The further necessary facts appear in the opinion.

Action to recover the sum of $150 for professional services rendered defendant as an attorney. Writ of attachment was issued and'levied upon forty acres of real property. At the time the services were rendered, the defendant was a married man and the head of a family, residing upon the attached property with his wife and a minor child, and he continued to reside thereon at the time the attachment was levied.

Plaintiffs brought an action against L. B. Norton and L. W. Johnson, in the Benton district court, for the March term, 1869. The original notice was served personally on Norton, who was a resident of the county, and by publication on Johnson who was a non-resident of the State. Judgment was rendered against Johnson at the March term, 1869.

This action was brought originally before a justice of the peace, and appealed to the circuit court.

Defense, that the note was given for a reaping and mowing machine, which was warranted by plaintiffs, and that the warranty was broken. Jury trial. Yerdict and judgment for defendant. Plaintiffs appeal. The necessary facts ¡appear in the opinion.

Action to recover for injuries to plaintiff’s team by locomotive and cars of defendant. Demurrer to petition sustained. Plaintiff appeals.

The plaintiff commenced an action against M. H. Crosby on a promissory note, and 'asking a writ of attachment. The petition was filed June 16th, 1871, the writ issued, and on the same day certain personal property belonging to Crosby was attached thereon.

Appeal' from Bueham/na/n District Court. Action to recover damages for tbe death of plaintiff’s intestate, George Inglesbee, caused by defendant’s servants in running a train of cars upon, and in keeping in repair its road. There was a verdict and judgment for plaintiff. Defendant appeals.

Action to recover damages of the defendant, a practicing physician, for alleged negligent, ignorant and unskillful treatment, by him, of the plaintiff’s arm, the bones of-which had been fractured near the wrist.

This action was brought against W. K. Nugent and M. D. Sherrick, who were partners in the practice of medicine and surgery. The plaintiff claimed to recover for alleged want of skill, care and diligence on the part of defendants, who were called by him to treat a compound oblique fracture of both bones of his right leg, between the ankle and knee. The defendant Sherrick died, and the action was tried to a jury as against Nugent alone.

This is an action in chancery to enforce the collection of a certain tax levied by defendant, the school district. A demurrer to the petition was overruled and a decree thereupon rendered, enjoining the collection of the tax in question. The defendant appeals. The facts of the case appear in the opinion.

Action to recover of tbe defendant tbe value of certain articles furnished tbe poor of Tama county, at tbe special instance and request of tbe township trustees of Toledo and Otter Creek townships.

On the 9th of November, 1871, the defendant filed in the office of the clerk of the Bremer county district court, a statement of confession, of judgment, as follows: “ I, J. N. Platt, hereby confess judgment in favor of Milton Thorp, the plaintiff herein, for the sum of $400, and authorize the clerk of said court to enter judgment against me for said sum, with costs. “ This confession of judgment is for the sum agreed upon between the parties hereto, in settlement of the…

Ayypcalfrom Scott District Court. This action was commenced on the 17th day of October, 1869, by Scott county, against Thomas K. Fluke, as principal, and J. E. Stevenson and others, as sureties, upon a treasurer’s bond executed January 2, 1866, conditioned that said Fluke, who had been elected treasurer for said county, should render a true account of, and promptly pay over, etc., all money coming to his possession as treasurer.

Action upon the following recognizance: “ County of Eayette : An order having been made on the '5th day of March, 1870, hy E. O. Little, a justice of the peace of the township of Washington, that Martin Marrion he held to answer upon a charge of assault and battery with intent to kill, upon which he has been duly admitted to bail in the sum of $500, we, Thomas Cannon, Michael Flanigan and Thomas McCuniff, of the township of Oran, Fayette county, Iowa, farmers by occupation,…

Action for the recovery of $429.89, the value of liquors sold to defendant. Defense that plaintiffs’ claim, is for intoxicating liquors sold defendant by plaintiffs, for the purpose of being sold in Iowa contrary to. law, of which plaintiffs had notice before the sale. Jury trial. Yerdict for defendant. Motion for a new trial overruled. Judgment upon the verdict. The plaintiffs appeals. The necessary facts are stated in the opinion.

On the 11th day of March, 1869, Lewis G. and Samuel Wheeler entered into a contract with the defendant, Olaibourn Day, for tbe sale to bim of tbe undivided one-half of a certain two hundred and forty acres of land, the said defendant agreeing to pay therefor the sum of $4,000, “ on the first day that a .railroad is built and completed to the village of Decorah, in said Winneshiek county.” It was further agreed that each party should bear an equal part of the expense of the…

Action to recover double the value of eight hogs, hilled by a train on defendant’s road. Judgment for plaintiff. .Defendant appeals. The facts are stated in the opinion.

Action to recover damages for the failure of defendant to perform his covenants contained in a lease of a grist mill, made by the defendant to the plaintiff. There was a demurrer by defendant to certain ■ counts of the petition, which was sustained. The plaintiff appeals.

Action in equity to redeem two hundred and eighty acres of land from tax sales. The plaintiffs are the children and heirs-at-law of John Jacobs, deceased, who died in Ohio, November 1, 1860, seized in fee of the land in controversy, leaving seven children, three of whom were then minors. The tax sale was made October 5, 1863, for the delinquent taxes of 1861 and 1862.

Action to recover damages for an assault and battery, Jury trial; verdict and judgment for $150, for plaintiff. The defendant appeals. See opinion for further facts.

Action to recover the value of services rendered in assisting to run a raft from Dexterville to Dubuque, under a contract with one Joseph Sylvester, the alleged pilot, and for the establishment of a lien therefor against the raft. Answer in denial.

This was a proceeding under chapter 55, of tbe Eevision of 1860, for tbe assessment -of damages caused by tbe defendant taking two lots in tbe town of North McGregor for tbe right of way of its railroad. Both parties appealed from tbe verdict of tbe sheriff’s jury. Tbe cause was tried on appeal in the circuit court to a jury, wbo rendered a verdict for plaintiff for $10,000 damages. Defendant appeals to this court.

The petition alleges that defendants are non-residents of the State, and transient merchants; that, on the 14th day of December, 1870, within the corporate limits of the town of Decorah, they sold at auction, goods, wares and merchandise, without obtaining a license therefor, as required by the terms of an ordinance of said town, entitled, “ An ordinance to regulate and license auctions and transient merchants, hucksters, pediere and pawnbrokers,” whereby defendants became…

Action in chancery. The relief asked is, that the legal title of certain lands held by defendants be conveyed to plaintiff; that an account of the sales of certain other lands held by them under the same title, which had been before the commencement of this suit sold and conveyed, be taken, and also that an account of the rents and profits of all of said lands be had; that judgment be rendered for the amount due plaintiff, and that he have proper process to recover the…

This action is brought to recover the amount oí an alleged bid at a sheriff’s sale of property.

The petition alleges that one O. O. Lee, being, on the first day of May, 1857, the owner of certain real estate in Decorah, Iowa, sold the same to Ebenezer Baldwin for the consideration of $1,000, taking his two promissory notes of $500 each, bearing ten per cent interest per annum, payable on the first day of February, 1858, and first day of August, 1858, respectively; that said Lee executed to Baldwin a bond for a deed'to said premises; that the note first falling due was…

On tbe 28th day of Ja-nnary, 1870, the plaintiff filed his petition, claiming of the defendants, David Bane and Cruson Bane, $800 upon a promissory note made on the 27th day of May, 1856, by. the defendants, David Bane and Cruson Bane, jointly and severally, to the plaintiff’s intestate, Bobert Bane, for $336, payable six months after date, with interest.

Action on a promissory note, and for the foreclosure of a mortgage made to secure the same. Trial by the court. Judgment and decree for plaintiff. Defendants appeal. The further facts are stated in the opinion.

The petition states that, in May, 1870, plaintiff stored with defendant six hundred and fifty bushels of wheat to be sold by defendant when he should sell his own wheat; that the wheat was sold by defendant on the 20th of July, 1870 ; that defendant has paid plaintiff, on account of such sale, the sum of $325, and that there is still a like sum due thereon. The petition claims the further sum of $25 for a gun.

<p> Appeal from Jones District Court. </p> <p>Action to recover damages for the injuring of a heifer, and the hilling of two heifers and a steer, the property of plaintiffs, by a locomotive and train of defendant. Jury trial. Yerdict and .judgment for plaintiffs. Defendant appeals. The necessary facts are stated in the opinion.</p>

Action commenced on the 16th day of March, 1871, to recover the value of seven years’ service rendered defendant, from September, 1854, to September, 1861. Defense, denial and plea of statute of limitations. Jury trial. Verdict and judgment for plaintiff. Defendant appeals. The facts are stated in the opinion.

Action upon a promissory note given to plaintiff’s intestate ; defense, usury. Upon the trial defendants offered to prove by one of themselves, Buckingham, that the note was given under an agreement to pay usurious interest. Upon the objection of plaintiff, the evidence was excluded. Judgment was rendered for plaintiff, from ¡which defendants appeal.

W. Nose, and payable to defendant, who indorsed the same to plaintiff. The petition alleges that the note was made and indorsed in the State of Illinois, where all the parties then resided.

Action to recover damages for the non-performance of a contract to purchase a reaper. The defendant made a proper showing that he resided in Allamakee county, and thereupon the court, upon his motion, changed the venue to that county. From this order plaintiffs appeal.

Appeal fr.om Tama Circuit Court. Replevin for two horses. There was a verdict and judgment for plaintiff. Defendant appeals. The facts of the case appear in the opinion.'

Action by the plaintiffs, as trustees of Mendon township, to require the defendant to make certain alterations in its railroad along and across the highway between the city of McGregor and the village of North McGregor, and situate in said Mendon township.

Action upon contract for a balance due upon the sale of a lot, at an alleged price of $400, $120 of which price was paid at the time of contract. The plaintiff averred a tender of a deed.

Action upon two promissory notes, executed by S. D. Daily, payable to JB. Roop or leader, dated October 6, 1862, due one and two years from, date, and each for the sum of $200, and assigned after maturity, as is alleged, as follows: “ I hereby sign -the, within to A. P. Richards, for value received.

This is an appeal from a ruling upon a motion to re-tax costs. There were twelve appeals, with different plaintiffs, in right-of-way cases pending against the same defendant, and for trial in the same court at the same time, and were all disposed of in the first five days of the term. There was a large number of witnesses subpoenaed in each case, including the parties plaintiff in the others.

<p>1. Bills and notes: demand and notice : partnership : evidence. In an action against a partnership, as guarantor of a bill of exchange, evidence that one of the partners admitted the liability of the firm is admissible, as tending to prove either the fact of notice of nonpayment to it, or of its waiver thereof.</p> <p>2. Partnerships liability of partners. In an action against a firm, as a guarantor of commercial paper drawn upon a third party, the onus is on the defendants to show that the guaranty was executed by a member of the firm, outside of its business and without authority. Want of authority, on the part of the member executing the guaranty, would not relieve him from personal liability.</p>

This action is brought by one legatee, to compel contribution by another, for the real estate devised to the former, which had been taken for dower and debts.

Action upon a promissory note for $213, made by defendant, October 11, 1869, payable twelve months after date, with ten per cent interest, to the order of E. S. Howe, and indorsed by the payee, in blank. Defense, that the note had been altered in a material part, by writing the words “ ten pr ct inst,” in a blank in said note, after the same was executed and delivered, so as to increase defendant’s liability, and of which plaintiff had knowledge before he purchased the note.

This is a proceeding upon the complaint of the mother of a bastard child, charging defendant with being its father and claiming to recover for its support. Defendant demurred to the complaint on the ground that the circuit court has no jurisdiction of cases of this kind. The demurrer was overruled and defendant appeals.

The defendants were indicted and convicted of a conspiracy to rob and steal from one T. B. Bodes and other persons unknown, and were sentenced to the penitentiary for three years. From the judgment they prosecute this appeal. The facts, necessary for a proper understanding of the points ruled, are found in the opinion.

Action in chancery to set aside and avoid certain tax deeds. On the 2d day of March, 1838, plaintiff located a military bounty land warrant, issued to him for services in the war of 1812, upon the land involved in this suit. A patent for the land was issued April 10, 1860. The land was assessed for taxation for the years 1859, 1860, 1861,1862. The taxes so assessed being delinquent and unpaid, the lands were sold to defendant therefor.

Action in chancery to foreclose a mortgage given to secure certain notes made payable to one Erickson, or order. The petition, after setting out the notes and mortgage and making sufficient averments as to the non-payment of the debt, etc., alleges that the mortgage was assigned to plaintiff, who now holds and owns it, together with the notes. Defendants demurred to the petition, on the ground that no copy of the assignment is set out in the petition.

Defendants were jointly indicted for burglary, and, upon separate trials, each were convicted. They prosecute separately these appeals to this court, which were heard and submitted together.

<p> Appeal from Lee Oweuit Oov/rl. </p> <p>This action was commenced, before a justice of the peace, upon the 26th day of January, 1869, upon a due-bill executed by the defendant, dated West Point, October</p> <p>28, 1854, in these words : “ On settlement, due W. R. Stewart or order $15.35, with ten per cent.” The defendant admitted the execution of the note, and pleaded the statute of limitations. On the trial, before the justice of the peace, the plaintiff recovered judgment for the full amount of the due-bill and interest. The defendant appealed to the circuit court, where, on a trial to the court, judgment was rendered for the defendant. The plaintiff appeals to this court.</p>

This is a proceeding, commenced, as the law requires, before tbe sheriff and a jury of tbe proper county, to assess tbe damages sustained by plaintiff, by reason of tbe location of defendant’s railroad over bis lands. Tbe plaintiff appealed from tbe assessment made by tbe jury to tbe circuit court. Upon a trial in that court, a verdict and judgment was rendered in bis favor for $800. Defendant appeals to this court.

Action against tbe maker and indorser of a note for $260, dated Clifton Springs, N. Y., June 25th, 1870, and made by Louisa A. Bivers, payable to the order of John D. Bivers, on the 1st day of December, 1870, at the banking house of B. F. Allen, in Des Moines, Iowa, with seven per cent interest from date.

Action in chancery. Tbe petition alleges that'plaintiff purchased of defendant Susan Brazee certain land in' the corporate limits of- the city of Des Moines, for which she executed, to plaintiff, a deed of general warranty. To secure a part of the purchase-money remaining unpaid, he executed his notes and mortgage to said defendant.

This is a proceeding, under Revision, section 3501, to vacate a judgment and obtain a new trial in a case of Holborn against Brewer, wherein judgment was rendered by default against Brewer for the full amount of the note sued on. The ground for a new trial was that specified in subdivision 7, section 3499, for unavoidable casualty preventing the party from defending. The district court denied the relief. The plaintiff herein appeals.

Action for the recovery, of real property. Plaintiff avers his absolute ownership of lots eleven and twelve of block eight in Kilbourne’s addition to Keokuk; that defendants wrongfully withhold possession from him. Defendants answer in denial; that the defendant Catharine is the owner; and also that the property is their homestead, and has been since 1856. Trial to the court. Judgment for plaintiff. The defendants appeal.

Action for trespass. The plaintiff alleged that defendant willfully, unlawfully and maliciously threw down and removed the plaintiff’s fence inclosing his cultivated fields; claiming $500 damages.

Suit in equity to set aside a conveyance of certain land, made by defendant Judd to his co-defendant, Ladd, and to compel a specific performance by Judd of Ms contract to convey said land to plaintiff. The cause was tried by the first method, and judgment was rendered for plaintiff as prayed for. The defendants appeal.

Action to recover damages of defendant for his failure to perform his agreements in a certain contract of lease, the items of which are set out in an account; upon an account for sundries and for balance due on a note, claiming $376.37. Answer in denial; averment of matter excusing failure to comply with, the terms of the lease; tender of amount defendant admitted to be due on the note, and also setting up a counter-claim and ashing judgment upon it.

Suit in equity to enjoin the collection of a judgment rendered in the Boone District Court on the 11th day of September, 1861, in favor of Boone county, for the use of the school fund, against David Hamilton and wife and Theodore De Tar, for $187.57 and costs. An execution was issued on said judgment January 24,1871, and placed in the sheriff’s hands.

This is an action to foreclose a mortgage. The original notice was duly served in tbe county eleven days before tbe term. At the appearance term, and on tbe second day thereof, tbe defendants appeared and asked leave, as a matter of right under tbe statute, to plead within sixty days from tbe day of completed service. Leave was granted accordingly, and tbe cause continued, to which tbe plaintiff duly excepted, and now appeals.

Action for trespass iu throwing down, plaintiff’s fences, exposing his crops, and, also, in cutting down and destroying the plaintiff’s thicket of timber.

Action to recover damages for the breach of an alleged promise to marry. The defendant, for answer, first denied the promise; and second, averred that, since the promise, the plain tiff had conducted herself in a dissolute manner, and had been guilty of adultery. Trial to a jury; verdict and judgment for plaintiff for $5,400. The defendant appeals.

This action was commenced on the 27th day of December, 1870, the plaintiff claiming $643.44 as balance due him from defendants on bank account, etc. The plaintiff obtained a writ of attachment, on the ground that the defendants had disposed of their property with intent to defraud their creditors. The writ of attachment was served on the same day, December 27, 1870, by levying on lot 4, block 50, in Atlantic, and other property.

Action for trespass in entering upon plaintiff’s lot in Sioux City, and constructing a side track tkereon; the plaintiff averred that the trespass was willful and oppressive, etc. The defendant, for answer, denied the allegations of the petition; and also alleged that it became necessary to have the use of part of said lot for -a side track, and that defendant negotiated for said lot and the plaiutiff refused to convey, as he agreed, etc., and that defendant filled a part of…

Action of replevin, for one brown mare, brought before a justice of the peace in Fayette county. Answer in denial, and, also, that the court had no jurisdiction, for that defendant is a resident of Buchanan county, and service of notice upon him was made there, and the mare was replevied by the constable in said county. There was a jury trial before the justice of the peace, resulting in a verdict and judgment for the plaintiff, for the mare, and $20 damages.

Action to recover damages for cattle injured and killed by tbe defendant’s engine and train of cars. The plaintiff obtained a verdict for $220.95. The defendant appeals. The further facts are stated in the opinion.

Actions of mandamus. These two cases grew out of similar facts, and involve the same principles.

Petition in equity to correct the amount of a judgment entered through mistake of plaintiff’s attorney. Demurrer to petition overruled. Defendants appeal.

Dependant was convicted of the crime of establishing and continuing a public nuisance, in maintaining a place for selling, and keeping with intent to sell, intoxicating liquors, and fined in the‘sum of $100. He appeals to this court.

The plaintiff purchased of the defendant a Marsh Harvester, and took from him a written warranty of it. This action is brought to recover the amount paid therefor, with interest, alleging a breach of the written warranty.

It is agreed by counsel that the defendant was arrested, tried before the police magistrate of the city of Davenport, and found guilty of violating an ordinance of the city,- and fined $3 and costs; that defendant appealed to the district court, where he interposed a demurrer to the information for the reasons: ' ££ 1st. That although section 6, article 8 of the original charter of the city of Davenport, passed February 5, 1851, provides : ‘ That all suits, actions- and…

Action for divorce. Motion for temporary alimony sustained._ Defendant appeals. Tbe necessary facts appear in tbe opinion.

Action for criminal conversation with plaintiff’s wife at various times, and particularly about the 11th or 12th of April, 1870. Answer in denial of the acts charged in April, 1870, and pleading the statute of limitations, as to the remainder. Yerdict and judgment for plaintiff.

Action of replevin by plaintiff, a married woman, to recover of tbe defendant, wbo is sheriff of Marshall county, a certain mare, levied on by him tinder an execution against James S. Presnall, husband of plaintiff.

75, balance of an account. On the 27th day of February, 1871, the original notice was duly served on the defendant, and proof thereof filed with the clerk, on the 1st day of March following. At the appearance term the defendant filed an answer alleging a settlement of the claim with plaintiffs on February 17,1871, by the payment of $200, and an agreement to pay all the expenses in the case. There was a jury trial, verdict and judgment for plaintiffs for $17.79.

The defendants were jointly indicted for tbe crime of incest, in that, being brother and sister, they did unlawfully and feloniously intermarry with each other. They were separately tried, and each convicted. They prosecute separate appeals to this court; but, the record in. each being identical, the cases are submitted together.

Appeals- from orders of Hon. H. W. Mamoell, Judge of the Fifth Ju&idal District. These cases, as they involve the same legal questions, and present the same facts, are submitted together. In the first case an injunction was allowed, in the second an injunction was refused upon the petition of the city against the same parties who are plaintiffs in the other case. The city appeals in both cases. The facts, apjiear in the opinion.

Action to enforce a mechanic’s lien. Judgment for plaintiffs. Defendant appeals. The facts of the case are fully stated in the opinion.

This is an action for partition of real property. Francis Clement was formerly the owner of the pi’operty; his first wife was Prudence Clement, by whom he had several children, the plaintiff Benjamin being one of them, and the others are made defendants. • Francis and Prudence Clement were divorced in 1854, and certain real property was decreed to her in fee, as alimony. Afterward he married Charity Clement, with whom he lived for a time.

Action to recover damages suffered by the plaintiffs, for the alleged careless and negligent manner in which the defendant had constructed the gutters and drains in the streets and alleys on which plaintiffs’ property abutted.' The plaintiffs claimed for damages suffered in 1862, and continuously thereafter, up to the date of bringing suit, July, 18T1. A demurrer to all claims, prior to five years before suit, was sustained. The answer of defendant is in denial.

<p>NEW TRIAD: INSTRUCTIONS: CONTRIBUTORY NEGLIGENCE.</p> <p>The plaintiffs bring- suit to recover damages for injuries to their horse, caused by the alleged negligence of the defendant, consisting in the use of bad and insufficient material in one of their bridges across a gutter in one of the streets of the city of Davenport, whereby the plaintiffs’ horse broke through the same and was injured, without any negligence on their part.</p> <p>The defendant answers denying all the allegations of the petition. Jury trial. Verdict for plaintiff, and defendant appeals.</p>

<p>PLEADINGS: INTERROGATORIES TO ANSWER.</p> <p>This is an action brought on two written agreements each of the following purport:</p> <p>“ I, Abner "Woods, hereby agree that I will pay to The Central Railroad of Iowa, one hundred dollars at the completion of said road to Grinnell, provided at that time I am a resident and owner of property in this county.</p> <p>“(Signed) A. "Woods.</p> <p>“ Grinnell, July 24th, 1869.”</p> <p>The petition states in substance that these promises to pay were made by defendant to induce the railroad company to build their railroad through Poweshiek county to the town of Grinnell, and in consideration of the promise of the company to so build their road to said town, and to issue certificates of stock in said road, upon the payment of the money he had thus promised; that the road was built to Grinnell according to the agreement of the company to do so; that certificates of stock had been made out and were' ready for delivery upon payment by defendant, and that defendant still resided and owned property in the county, but refused to pay.</p> <p>It is also alleged that the said written promises sued on were transferred to plaintiffs about the first day of May, 1870, by delivery.</p> <p>The answer admits the execution of the agreements set out in the petition, that the railroad was completed to Grinnell by the third day of December, 1870, and that at that time he was a resident of, and property owner in Poweshiek county, but denies all the other allegations in the petition, and avers that said agreements were made and accepted as voluntary gifts to the railroad company, and not upon the consideration alleged or upon any consideration whatever.</p> <p>To the answer five interrogatories are annexed, with defendant’s affidavit thereto, stating that his answer is true, as he believes, and “ that the subject of the interrogatories, as he verily believes, or some of them, are in the personal knowledge of the plaintiffs, and that the answers, if truly made from such knowledge, will sustain the claim of the defense or a part thereof.”</p> <p>The answer and interrogatories were filed before and about the time the cause was called for trial, whereupon plaintiffs filed a motion to strike out the interrogatories, which was sustained, and defendant excepted. The cause was then tried before the court without a jury, and judgment rendered for plaintiff, which was duly excepted to. Various rulings on the trial were also excepted to and assigned as error by defendant.</p> <p>The further necessary facts appear in the opinion. Defendant appeals.</p>

<p>TAX SALE AND DEED: STAMPS.</p> <p>Ordinary action for the recovery of real property, the north-west of the south-east, and the north-east of the south-west of section twenty-one, township eighty-five north, of range five west. Answer in denial, and also averring that 'defendant is the owner in fee simple of the land sued for. Trial to the court. Judgment for defendant. Plaintiff appeals.</p>

<p> Appeal from Dubuque District Court </p>

<p> Appeal from Tama Circuit Court </p>

<p> Upon Certiorari to Polk District Court </p>

<p>Appeal from Muscatine Court,</p>

<p> Appeal from Kossuth District Court </p>

<p> Appeal from Decatur District Court </p>

<p>Action to recover the possession of certain fractional-lots in the city of Clinton. The canse was referred, and, upon a report finding the facts and the law adversely to plaintiff, judgment was rendered for defendant. Plaintiff appeals.</p>

<p> Appeal from, Muscatine Circuit Court </p>

<p> Appeal from Dubuque District Court </p>

<p> Appeal from Buchcnan Circuit Cowrt </p>

<p> Appeal from Howard District Court </p>

<p> Appeal from Winnesheik Circuit Court </p>

<p>FRAUDULENT CONVEYANCE.</p> <p>The plaintiff obtained a judgment against the defendant, John.. Hanna; be caused execution to issue thereon, and to be levied upon certain real property, the legal title to which appeared, by the records, to be in the defendant, Lucy Hanna; the property was sold under execution and purchased by the plaintiff. This action is .brought in equity to set aside Lucy Hanna’s title on account of fraud, and to quiet the title in plaintiff. The district court rendered judgment as prayed for. The defendants appeal. The facts are stated in the opinion.</p>

<p> Appeal from Butler District Court </p>

<p>CONVEYANCE: NOTICE.</p> <p>Action in equity. The petition alleges that, in April, 1857, plaintiff purchased of defendant Banks, by a verbal agreement, certain lands, and procured him to execute a bond and afterward a deed therefor to one Bothis, with whom plaintiff had pending some negotiations for a trade. In consequence of the failure of these negotiations the bond and mortgage were never delivered, but were fraudulently procured and filed for record, the bond on the 11th of April, 1857, and the deed on the 12th of September, 1860. The bond has no certificate showing that it was acknowledged. One Wray, now deceased, it is alleged, Subsequently purchased the land of Banks, with notice, however, of plaintiffis claim. The widow and heirs of Wray, who are defendants, join ■with Banks in an answer, and allege the purchase of the lands by Wray on the 19th day of October, 1857, without notice, either actual or constructive of plaintiff’s claim.</p> <p>Upon the final hearing, a decree was rendered quieting the title to the lands in plaintiff. Defendants appeal.</p>

<p> Appeal from the Blackhawk Circuit Court </p>

<p> Appeal from Jefferson District Court </p>