Volume 44 — Iowa Reports

The plaintiff claims of the City of Muscatine and the Muscatine Westeim1 Railway Company $6,000 damages, and alleges as the ground of such claim, that plaintiff was the owner of certain lots fronting on Water street in said city, and that in the month of May, 1872, the defendant, the City of Muscatine, carelessly, negligently and unnecessarily granted to the Muscatine Western Railway Company authority to construct a railway along said street, and that the said company…

S. Maynard, as collector of taxes of Bloomfield township, Winneshiek county; to recover a balance due from him for taxes collected, and also against W. H. Baker, T. A. Wendell and N. Peckham, as sureties upon said Maynard’s official bond. A trial was had to the court upon the following stipulated facts: “1.

Appeal frorh Lirm Distriet Court. Action for injury from the sale of intoxicating liquor to the plaintiff’s husband. Judgment for defendant. Plaintiff appeals,

Appeal from the Woodbury District Court. This is an appeal from an order appointing a receiver, on a petition for the settlement of a partnership.

<p>1. Receiver: when to be appointed. Where the bond, or mortgage pledges the income, rents or profits to the payment of the debt, the creditor need not conclusively establish his right to recover before he is entitled to ask for the appointment of a receiver; it is sufficient if he show a probable right to recover.</p> <p>2. -:--: insolvency. In such a case, if the debtor is insolvent the appointment of the receiver follows as a matter of course.</p>

The petition avers in substance that tbe defendant, The Independent School District of Mitchell, employed its co-defendants, John Pratt and George Moses, to drill a well in the school-house yard, with machinery which it was dangerous to leave unlocked and unguarded; that said well was to be -sunk for the improvement of the district property; that said work was let to said Pratt & Moses at a certain rate per foot, and the said district had no direct control over the same;…

This suit was brought to cancel of record two mortgages executed by plaintiff to defendant upon a certain piece of land in Floyd county. The defendant denied the allegations of the petition, and by cross-petition prayed for a foreclosure of the mortgages. The plaintiff for a reply to the cross-petition averred that the mortgages were usurious.

Afjgeal from Washington Circuit 'Court. This is an action for the foreclosure of a mortgage. There was a decree for the plaintiff, and defendants appeal. The facts appear in the opinion.

This is an action upon an attachment bond, plaintiff claiming to recover because the writ of attachment was willfully, wrongfully and maliciously issued. There was a verdict and judgment for defendant. Plaintiff appeals.

The plaintiff recovered a joint judgment for two thousand dollars against the defendants, Hans Ehlers and three others, for injuries alleged to have been sustained by her by reason of the intoxieatjon of her husband produced by the defendants. Defendants appeal.

In this case, a verdict having been returned for plaintiff, the defendant moved to set it aside and grant a new trial, upon the ground of the misconduct of a juror in drinking intoxicating liquor during the progress of the trial.

<p> Appeal from, Eeohuh District Court. </p> <p>The defendant was convicted upon an indictment charging an offense in the following language: “That on etc., at etc., the defendant upon one Jernsha A. L., a female child under the age of......years, to-wit: seven-years of age, did feloniously make an assatilt with intent the said Jerusha A. L. feloniously to ravish and carnally know by force and against her will.” From a judgment upon such conviction defendant appeals to this court. The facts of the case involved in the points ruled in the opinion appear therein.</p>

<p>1. Jurisdiction: original notice: pleading. Where the original notice stated that the plaintiff claimed a certain sum of money on a note and the foreclosure'of a mortgage, but the petition, while describing the mortgage, failed to ask a foreclosure therof, held, that a judgment of foreclosure was not void, but voidable only, and might be set aside upon motion, but that the judgment for the amount due upon the note should stand.</p> <p>2. —:-: special execution: judicial sale. Special execution having issued under the decree, the defendant selecting an appraiser, and • a the property having been sold, the sale was not invalidated by the error in the form of the judgment and execution.</p> <p>3. Practice: amendments: when made. Amendments in furtherance of justice may be made at any time, and it is competent to amend after judgment when ho new cause of action is introduced, the granting of such an amendment resting within the sound discretion of the court.</p>

This is an action in equity in which plaintiffs claim that they borrowed money of defendant, Boardman, at different times at usurious rates „ of interest, and for some of such loans deposited promissory notes as collateral security; that by the collection of said collaterals Boardman has received payment for most of said loans.

In 1870, one Grim was the owner of part of an ont lot in the city of Ottumwa, upon which was situated a woolen manufactory propelled by a steam engine, and which manufactory contained all the usual machinery and appliances for manufacturing cloth from wool. On the 1st day of October, 1870, said Grim executed a trust deed on said real estate to secure a loan of $4,000 from the Lamar Insurance Company.

Indictment charging that defendant made an assault in and upon Dennis Ryan, with intent to kill and murder the said Ryan. Trial, verdict of guilty, and judgment sentencing the defendant to the penitentiary for the period of five years. Defendant appeals. The facts are sufficiently stated in the Opinion.

Action to determine adverse claims to an interest in lands. Tbe petition alleges that plaintiff is the owner of an undivided one-half oí “ the mineral right ” in a mineral lot in the city of Dubuque, and the holder of the whole of “ the working” interest therein, under an obligation to pay a certain rent, which he has exercised and enjoyed uninterruptedly for twenty years.

The plaintiffs claim of the Iowa Eastern Railway Company $2,180.82, on account of ties furnished the company for the construction of its road-, and ask that a lien therefor may be established. The intervenors allege that .they are the holders of bonds of the company secured by a mortgage upon the road, and claim that the mortgage is entitled to priority over the lien of the plaintiffs. Other facts are stated in the opinion.

In consideration of the conveyance by plaintiff to tbe defendant, Elizabeth Kistner, of one hundred and twenty acres of land, the defendants conveyed to plaintiff eighty acres of land and paid him the sum of $500.

The defendant was indicted for rape, was tried, convicted of an assault with intent to commit a rape, and was sentenced to the penitentiary for three years. He appeals.

This is an action founded upon coupons of certain railroad bonds issued by the city of Keokuk to the Keokuk, Fort Des Moines & Minnesota Railroad Company, January 1, 1856, in pursuance of two elections held on the 7th day of January, 1854, and on the 17th day of October, 1855, respectively.

Defendant was indicted for the crime of murder in the first degree, was tried and convicted for murder in the second degree, and sentenced to the penitentiary for thirteen years, from which judgment he appeals. The further facts are stated in the opinion.

The defendant, having been indicted for keeping a house of ill fame, filed a plea of not guilty, and afterward applied for leave to withdraw her plea, and to file a motion to set aside the indictment; the application and motion being in the following words: “The State oe Iowa v. Madam Hale. “ Comes núw the defendant and files this her motion asking leave of the court to withdraw her plea of not guilty, and file a motion to set aside the indictment, as provided in section…

This is an action to recover for services rendered by the plaintiff, who is a minor and sues by his next friend, under contract with defendant.

Plaintiff brought an action by attachment against defendant, Lee, before a justice of the peace, and served process of garnishment upon Gray, who, answering, admitted that he had in his possession $68.55-100 and a watch of the value of $8, the property of defendant.

The defendant and John Chancey were indicted for killing John Shea in Wapello county, on the 13th day of August, 1874, and charged with the crime of murder in the second degree. Yerdict of guilty, judgment, and defendant appeals.

The plaintiff alleges in his petition in substance that on the 5th day of July, 1870, he held a valid claim under the pre-emption laws of the United States, and under the laws of Iowa, to the south-east quarter of section number thirty-six, in township number ninety-two, of range forty-eight, and was then, and from about April 1,1870, had been, in possession of and residing on the same; and had erected a good, substantial dwelling house, and made valuable improvements…

The petition alleges that the defendant is a corporation organized under the laws of this State for common school purposes, and that in 1869 the said corporation made and issued twenty bonds for the sum of five hundred dollars each, payable to, bearer, at the Hardin County Bank, to which bonds interest coupons were attached, maturing- semi-annually, at ten per cent per annum; that said defendant contracted with Foster & Brother to erect afiarge brick building in said…

In May, 1870, the defendant executed and delivered to the plaintiff a county warrant, and on the 7th day of June, 1870, plaintiff presented said warrant to the treasurer of' the defendant for payment. Payment was not made for want of funds, and the treasurer indorsed the presentment for payment with the date, and signed the same. Plaintiff again presented said warrant for payment in April, 1875.

This is an action for the possession of out lot No. 2, in the town of Libertyville, the plaintiff claiming to own the same. The defendants deny that plaintiff owns the lot; allege that Clarissa J. Wilson owned it, and that any claim that plaintiff may have is but a lien thereon, a mortgage for money advanced. The court found that plaintiff is the owner and entitled to the immediate possession, of the lot, subject to defendants5 rights as occupying claimants.

The petition alleges that plaintiff -is the owner of certain lands described therein, that defendant makes some claim thereto, and asks that his title be established and quieted. Among other defenses relied on is that plaintiff purchased the lands at a tax sale held in July, 1868, and obtained deeds in pursuance to such sale in J uly, 1871, and that there was unlawful combination among the bidders at such sale; that there was a private and not a public sale.

This is an action to recover for personal injuries resulting-in the death of plaintiff’s intestate, received while he was in the employment of the defendant. It is alleged in the petition that the death of the intestate was caused by the negligence of his co-employes, without his fault. There was a verdict and judgment for plaintiff; defendant appeals.

<p> Appeal from Davis Circuit Court. </p> <p>A sufficient statement of the facts is contained in the opinion.</p>

This action was brought November .4, 1873, to set aside a tax deed made to the defendant, John Scott, and his conveyance of the same land to William O. Wright. John E. Hayes, the auditor, and E. G. Day, the treasurer, of Story county, are also made defendants.

The plaintiff filed in the Cass District Court his petition, in substance as follows: “That on the 9th day of September, 1874, the defendants were doing a banking business in Atlantic, Cass county, Iowa, under the firm name of Smith & White, and so continued for some months thereafter.

This is an action to quiet in plaintiff, as against defendant, the title to the south-east quarter of section 10, township 93, range 12. The cause was tried by the court. The plaintiff offered in evidence the following testimony: A certified copy of the booh of original entries, page 112, showing that the land was entered by Jacob and Frederick Robi, under certificate 35,136, on the 4th of September, 1855.

This is an action for the recovery of damages sustained by the failure of the defendant to erect and maintain cattle guards. The defendant upon the trial admitted the following facts: The defendant’s road was constructed over and through the real estate in petition described in the year 1858. At the time said road was constructed over said land, said real estate was inclosed in common with other lands belonging to one L. O. Killiam.

Action upon an account and promissory note executed by O. H. Bryson, and on a bond, whereby the other defendants. became bound to answer for the debt of their co-defendant. The account is for sewing machines delivered to defendant, C. IT. Bryson, as agent for their sale, under a written agreement between her and J. A. Stebbins & Co., and the note is executed to the same firm. Both instruments are assigned to plaintiff.

<p> Appeal from Wapello District Oowt. </p> <p>Action to recover double the value of a horse killed upon defendant’s railroad.</p> <p>The horse, with some four others, came upon defendant’s railroad from a public highway. There was no cattle guard or fence to prevent the passage of stock from the public road to defendant’s railroad on the right of way of said road, nor was the said road or right of way fenced between the highway and the place of injury; but the defendant had the right to fence the same.</p> <p>Just prior to the occurrence of the injury, the said horse and four others were on the defendant’s right of way between the public highway and a bridge in the defendant’s road. The defendant’s passenger train, going south, passed across the public highway toward the bridge.</p> <p>The engineer on the train sounded the whistle of his engine in the usual way to drive stock from the track. The sounding of the whistle and rapid approach of the train caused the horses to run rapidly along the track. The plaintiff’s horse ran upon the bridge and fell among the timbers, and received injuries of which it died. There was a narrow passage down the side of the fill of the railroad, leaving the track at a point thirty feet north of the bridge, where two of the horses escaped from the track; while plaintiff’s horse and two others, being behind, kept the track until they ran upon the bridge.</p> <p>The bridge was so constructed as to leave nothing but cross ties a foot or more, apart to cross upon. The train stopped about fifteen feet before reaching the bridge, but not until after it passed the point where the passage way was by which the other two horses escaped from the track.</p> <p>Trial without a jury. Judgment for plaintiff. Defendant appeals.</p>

The petition states that plaintiff is the absolute owner in fee. simple by inheritance and devise through Jane Murphy, of certain real estate described therein; that defendants make some adverse claim to said real estate; and asks that his title be established in fee simple and the same quieted.

<p> Appeal from Van Burén Gireuit Court. </p> <p>In June, 1870, the defendant recovered a judgment against the plaintiff in the Circuit Court of Yan Burén county, on a promissory note. The judgment was rendered by default and the object of this action, which was commenced in 1874, is to perpetually enjoin the collection of said judgment on the ground that it was fraudulently obtained and has been paid or satisfied. The Circuit Court found for the plaintiff and rendered a decree accordingly, and the defendant appeals.</p>

Action in replevin to recover a calf. The Circuit Court made the following finding of facts and conclusions of law: “ That the evidence in the case… Held: the judgment should be entered for the defendant for the return of the property or its value, $15, and so finds.” ' ' Judgment confirming plaintiff’s title to the property and for costs against the defendant, and against surety on the appeal bond, which is excepted to at the time (by the defendant), and defendant appeals.

The plaintiff avers in his petition that on the 18th of January, 1873, judgment was rendered in Polk County Circuit Court against S. M. Ralston and J. B. Ralston, for the sum of $241.09 debt, and costs $41.09 in favor of the plaintiff; that prior to February 11th, 1873, plaintiff caused an execution to be issued on said judgment, and placed the same in the hands of the sheriff of Madison county for service.

The plaintiff having recovered judgment against the defendant, Howard, garnished the Murray Iron Works Co., as debtor of said Howard. The said company was required to appear and answer, and did appear and answer at the October Term, 1875, of the court.

In July, 1874, the plaintiff brought this action for a divorce, on the ground of the alleged adultery of the defendant. She also claimed alimony and the custody of their only child, a boy of the age of seven years. The defendant, by answer, denied the fact of adultery, and also controverted the allegations of the amount and value of his property, alleged by the plaintiff as the basis of her claim for alimony.

This is an action brought by one claiming to be a junior lien-holder by judgment, to redeem - lands covered by a mortgage after a foreclosure to which he was not a party. There was a decree in the District Court dismissing plaintiffs’ bill, after a trial upon the merits, from which they appeal. The facts of the case involved in the question decided in the opinion appear therein.

The plaintiff recovered in the court below a judgment against the defendant for the sum of $150.57 and costs, which judgment was paid. Afterward the plaintiff appealed to this court, and a motion is now made to dismiss the appeal.

<p>1. Board of Supervisors: taxation: equalization. The Board of Supervisors.has jurisdiction to increase or diminish the valuation of personal property in any town or township in the county, and may add or deduct a given per centage to or from the assessed valuation.</p>

<p> Appeal from Lee Circuit Court. </p> <p>The defendant brought an action against James Byers before a justice of the péace, and sued out therein a writ of attachment, by virtue of which a mule and harness were attached. The plaintiff' intervened in said action, claiming that he was the owner of the mule and harness, and asking that he be permitted to so show on the trial, and asked judgment and damages for said property and costs.</p> <p>There was a trial, and the property adjudged to belong to the plaintiff. Whereupon he brought this action to recover, as reasonable and necessary expenses, certain costs and attorney fees incurred by him, and the value of the use of said property during the time it was held under the writ of attachment.</p> <p>To the petition the defendant demurred on the ground that “ all damages and costs, as set out in the petition, are such as could and should have been recovered in suit brought to protect his (plaintiff’s) right, and cannot now be recovered in another suit.”</p> <p>This demurrer was sustained, and plaintiff appeals.</p>

Action in equity to settle a partnership. There was a reference, and upon the coming in of the referee’s report the same was confirmed, and plaintiff appeals.

Action in equity. The petition states that S. R. Mather executed four promissory notes and secured the same by mortgage, and in September, 1870, one Keck brought suit on the notes and stated that the same were secured by mortgage on certain lands, describing them, and asked that the judgment obtained on the notes operate as a lien on the lands from thé date of the mortgage; that in June, 1870, the Farmers’ & Merchants’ Bank recovered a judgment against Mather, in the Circuit…

Action in equity. At the April term, 1874, tlie case was submitted to be beard in vacation on written evidence, and by arguments of counsel in writing. In August, 1874, in vacation, the judge filed bis decision dismissing plaintiff’s petition, and rendering a decree upon defendant’s cross-petition. A decree was drawn up by defendant’s counsel and entered of record as of the April term, 1874.

The plaintiff avers in its petition that the defendant is acting and exercising powers as a corporation, to-wit: as an independent school district, without being authorized by law so to do. Trial without a jury. Judgment for defendant. Plaintiff appeals.

Jacob Ashcraft was the owner in fee of 221 acres of land, upon which he and Elizabeth his wife had for many years resided. In 1869 they sold said land to their son, T. E. Ashcraft, for an agreed consideration of $3,000, to be secured by mortgage on all the premises excepting sixty acres. This sixty acres, which included the homestead, was to be conveyed back by T. E. Ashcraft to his mother, Elizabeth, and to his brother, Albert Ashcraft, jointly.

Action at law to recover for personal injuries inflicted upon plaintiff by a train on defendant’s railroad striking a wagon, in which plaintiff was riding, at a place where a highway crossed defendant’s railroad. There was a verdict and judgment for plaintiff. Defendant appeals. The cause has before been in this court, see 39 Iowa, 523.

Ajyjpeal from Scott District Gourt. The plaintiffs in the first of the above actions are stockholders in the Scott County Agricultural Society, a corporation organized under chapter 44 of the Code of 1851, Bev., § 1187, not for pecuniary profit, and brought their action against the defendants therein' for the purpose of preventing said society from paying certain notes and a mortgage given to secure the same on the fair-grounds belonging to such society, on the ground that…

The defendant, George W. Ferguson, sold the N. 1¿- of S. E. J Sec. 3, 86, 29, in Webster county, Iowa, to one Johnson, and conveyed the same to him by deed, with covenants of warranty and of right to convey, the consideration expressed in the deed being five hundred dollars, although in fact it was much less.

Action to foreclose a mortgage upon 840 acres of land in Jones county. The defendant and appellant, Edgar Loomis, claims to have a judgment lien upon the mortgaged land, and sets up by way of defense and cross-petition that the plaintiff’s mortgage is void, or if not, that his said judgment lien is paramount thereto. The essential facts are as follows: In July, 1871, the title to the land was in one Merrick. He conveyed to the defendant, Emily J. Montgomery.

Action in chancery to quiet title to lands. The petition alleges that plaintiff holds the fee simple title to the property, and that defendants set up a claim thereto under a tax deed, which is averred to be void on account of certain matters set out in the petition.

<p>1. Dower: nature of: protection for. Although the wife’s dower during the life of her husband is inchoate and uncertain, yet it possesses the element of property to such a degree that she may maintain an action for its protection, and for relief from fraudulent alienation by her husband.</p> <p>2. -: fraud: sheriff’s sale. Where the husband by negligence or fraudulent connivance permitted his son by a former marriage to obtain possession of his realty, by acquiring a sheriff's deed thereon, held that the proceeds, in excess of the amount of the judgment under which the property was sold, should be subjected to the wife’s claim of dower.</p>

The plaintiffs commenced this action on the second day of December, 1874, to recover of defendants the sum of $5,975.09. On the same day an attachment was issued therein and levied upon the stock in trade of defendants, situated at Independence, Buchanan county, valued at $12,500.

The plaintiff claims of defendant damages in the sum of $1,000, alleged to have been sustained at divers times in the years 1872, 1873 and 1874, in consequence of the defendant’s permitting an embankment to be thrown up above the established grade on a street in front of plaintiff’s premises, and constructing-an insufficient culvert for the passage of the surface water, whereby plaintiff’s premises were flooded and his property was injured.

Action to recover for personal injuries sustained by plaintiff from having been struck by a locomotive of defendant when crossing its railroad. The accident, it is alleged, occurred on account, of the negligence of defendant’s employes operating the locomotive and train to which it was attached. There was a trial to a jury, and a verdict and judgment for plaintiff in the sum of $7,100. Defendant appeals. The cause has twice before been in this court.

This is an appeal to the Circuit Court from an assessment of damages by a sheriff’s jury, for the right of way through plaintiff’s land. In the Circuit Court the jury returned a verdict for plaintiff for the sum of $1,530. The defendant filed a motion to set aside the verdict and for a new trial, on the ground that the damages are excessive. The court overruled the motion, but reduced the damages to $1,000, and rendered judgment against defendant for costs.

Action in equity for specific performance of a contract. The plaintiff claims to have purchased the land in question of .the defendant, White, through his agents, Henderson & Bro. The defendant, Brown, claims to have purchased the land of White, through his agents, Creighton & Todhunter. White claims that he sold to Taylor, and not to Brown. The facts are stated in the opinion. Decree for plaintiff. Defendant, Brown, appeals.

W. B. Jones et al., defendants and appellants, filed their petition before the boai’d of supervisors of Des Moines county, praying for the establishment of a public highway in Bui-lington township, in said county, which said proposed highway ran through the plaintiff’s land. The plaintiff filed a claim for damages, which claim was disallowed, and the plaintiff appealed to the Circuit Court in said county, where there was a trial by jury.

This action has been already twice before this court. It was commenced in 1866. See 28 Iowa, 250, and 39 Id., 553. In the last appeal the case being in equity was tried anew in this court on its merits.

<p>1. Conveyance: warranty: damages. One holding lands under a deed of warranty may at his peril acquire a paramount title in defense of his possession, and may recover of his grantor upon the covenants of his deed. The measure of recovery is the damage actually sustained, not exceeding in amount the consideration in the deed upon which the action is brought.</p>

Action to redeem from a foreclosure sale. The plaintiffs are junior mortgagees and were made defendants in the foreclosure suit. The defendant in this suit was the holder of the senior mortgage, and purchased at the foreclosure sale. Within the time allowed by statute for redemption, these plaintiffs tendered the amount of the defendant’s bid with interest.

On tbe 26th day of December, 1873, the plaintiff filed his amended and substituted petition, alleging in substance that the defendant, Stephen Wicks, for thé purpose of securing to one D. Whitney a note for $300 and interest, on the 21st day of April, I860, executed to said Whitney a mortgage upon his dower interest in a certain piece of land 132 feet square, in the south-east corner of block No, 10, in the village of De Witt, That the fee simple in said land was in his…

<p>1. Practice: depositions: amendment of certificate. Where the certificate of the officer taking depositions did not show that the same were read over to the witnesses before they were subscribed and sworn to, it was held that the officer might subsequently file an amended certificate conforming to the facts.</p> <p>2. Railroads: liability for malicious acts of employes : master and servant. A railway company is liable for the malicious and criminal acts of its employes toward passengers while they are exe- • cuting what they suppose to be the orders of the company, even though the orders do not in fact contemplate such acts.</p> <p>3. -: damages: injury to feelings. Mental anguish arising from the nature and character of the assault is a proper element of compen- ■ satory damages, and the outrage and indignity which have accompanied an injury are to be estimated as well as its physical effects, even in cases where exemplary damages do not lie. Day, J., dissenting.</p> <p>4. -: verdict: when excessive. While in actions for damages for ' personal injuries, the court is disinclined to disturb the verdict of the jury on the ground that it is excessive, yet it will not permit a verdict to stand which appears to be the result of passion or prejudice.</p> <p>5. -: -: -. Where a passenger, seeking to enter a car reserved for ladies, was ejected with violence, whereby he suffered severe bodily injuries, and recovered a judgment against the railway company for $12,000, it was held that the amount should be reduced to $7,000. Beck, J., dissenting.</p> <p>6. Jurisdiction: transfer of cause to u. s. court: pendency in • state court. Where, after a procedendo had been issued, a petition for rehearing was filed within sixty days, it was held that the cause could not be transferred to the Federal Court upon the filing of a petition therefor and bond in the court below, in accordance with the ' requirements of the act of 1875, pending the action in the Supreme ' Court.</p>

Watson brought an action against John Montgomery, B. B. and Sarah O. Jack, the object of which was to obtain the correction of a deed, executed by Watson to B. B. Jack.

The object of this action is to restrain the defendants, by injunction, from removing certain supports in a coal mine leased by the defendants of the plaintiffs. The Circuit Court found for the plaintiffs and entered a decree accordingly, and the defendants appeal.

The petition in this case alleges that in November, 1872, the defendants recovered a judgment for $1,155.17, in the Circuit Court of Black Hawk county, against the plaintiffs on a policy of insurance. It is claimed that said judgment is .void for the reason that no original notice was ever served on the plaintiff herein, and that plaintiff had no knowledge of the action on said policy until after the final- adjournment of the term at which said judgment ivas rendered.

<p>1. Pleading: PRACTICE IN EQUITY: AMENDMENT AFTER REMAND. After a reversal in an equitable action which is remanded for further proceedings not inconsistent ■with, the opinion of the court, the unsuccessful party may file an amended or additional pleading, upon such a showing of newly discovered evidence as would entitle a party to a new trial in an action at law.</p> <p>2. -: estoppel: taxation. Where, in an action by a county.to quiet title to certain lands, it was answered that the county had received taxes upon the same, an amendment to the effect that the taxes had been received by inadvertence was the introduction of new matter proper to be shown.</p>

This is a proceeding by mandamus to compel defendants to levy a tax for the payment of a judgment against the town of Algona. Upon a trial on the merits a peremptory writ of mandamus was awarded against defendants, and from such judgment they appeal. Other facts of the case appear in the opinion.

<p>1. Contract: construction of. Two parties constructed buildings upon adjacent lots separating them by a partition wall, and usin^the third story as a common hall; the contract between them provided that access to the hall should be by an outside stairway, erected upon the land of one of the parties, which should be used in common by both, and used exclusively for ingress and egress to and from the hall; the hall having ceased after a time to be profitable, one of the parties commenced an action for the division of-the hall and construction of a partition wall to the roof: Held, that the relief asked should be granted, and that the use of the stairway should be continued to both parties.</p>

Action in equity for specific performance of a contract. The defendant's’ intestate, one S. O. Breese, sold to plaintiff certain lots in Grimesville, Iowa, upon which a steam sawmill .was situated, and gave plaintiff a bond for a deed. Plaintiff claims . that he fully paid for said lots, and prays that the defendants, as administrators of said Breese’s estate, be decreed to execute to him a deed.

The petition, states that William E. Brown being the owner of the real estate in controversy, he and his wife on tlie 27th day of December, 1850, conveyed' the same to their son, William Brown, who entered into possession and departed this life in the year 1854, leaving the “ petitioner as his son and sole heir and the owner of said land in fee.” “And petitioner further shows at the time of the death of his said father, he was about six years of age; that he was born in the…

On the 24th day of December, 1872, the plaintiffs commenced this action in the Jackson District Court, to restrain the defendants from selling 'under execution, issued upon a judgment against Elbridge G. Potter, in favor of the defendant, Seuleria Phillips, certain lands which plaintiffs claim are their property, described in the petition as follows: The NW J of section 16, and the SWJ- and the S of NW J, and the SW J of the NE J of section 9, the NE ¿ of section 16, the SE…

On the 11th day of February, 1873, the plaintiff filed in the Mahaska District Court a petition, alleging in substance, that on the 2d day of September, 1869,-the defendant executed a certain writing, by which he agreed to convey to the Iowa Bailroad Company and their assigns not exceeding one hundred feet in width over any land owned by him, for a railroad; that plaintiff became the owner of said writing as assignee of the Iowa Bailroad Company, and built a railway over…

Jesse S. Long died in 1875, in Jasper county, Iowa. Loretta Long, plaintiff herein, is his widow, and Alice Hewitt is his daughter by a former marriage. ; He had no other children. Loretta Long filed her petition in the court below, making Alice Hewitt and Jennie May Long defendants, demanding the assignment of dower in the real estate of deceased.

This is the same case that was determined in 38 Iowa, 456. The cause having been remanded to the court below, the plaintiffs, on the 24th day of May, 1875, filed their amended petition praying a judgment for the taxes and penalties from the year 1856 to the year 1870, both inclusive, and that the same be declared a lien upon the premises in question.

The jury in this case having returned a verdict for the plaintiff, the- court, on the 23d day of February, 1876, overruled the motion to set aside the verdict, and for a new trial, and rendered'judgment in favor of plaintiff for the sum of $600.

Action to recover the possession of certain real estate in Keokuk county. The plaintiff introduced in evidence a tax deed of the land in question. The defendants,.who claim to hold the patent title to the land, introduced evidence tending to show that the land in question was sold in a mass with a large number of other tracts, and that there was no public outcry or offer of the land.

The plaintiff is the wife of the defendant, James Stinson, and is residing with him upon the sixty acres of land which is in controversy in this suit. This land was purchased by the said James Stinson, of one Dawkins for $1,800. About $1,200 or $1,400 of the purchase money was paid from the proceeds of a former homestead owned by said Stinson. The purchase money not all being paid, Dawkins gave Stinson a bond for a deed, retaining the legal title for his security.

Plaintiff commenced this action against defendant Ransom to recover a balance due for the building of a burial vault. Ransom, not disputing the amount claimed, answered that he made the contract for building the' vault in writing with one A. Waulbaum, who assigned it to the plaintiff, and that prior to the completion of the work he was garnished as a supposed debtor of Waulbaum, by Cockrell & Train and R. Kockneiman and W. Mispelt.

The petition states that the plaintiff, being the owner of certain real estate, and defendant being desirous of constructing its road over the same, caused commissioners to be appointed by the sheriff for the purpose of assessing the damages caused by the right of way; that damages were accordingly assessed, from which defendant took an appeal to the Circuit Court, and that judgment was rendered in such court in favor of the plaintiff; that such judgment and damages have not…

This action was commenced on the 6th day of' November, 1874.

Afpeal from Jasper Circuit Court. The plaintiff claims six hundred and forty dollars on three promissory notes and the foreclosure of a mortgage executed to secure them.

The plaintiff claims that on the 25th day of June, 1857, he made proof of improvement upon the east half of the southwest quarter.of section nineteen, in township No. eighty, range No. twenty-six, before L. D. Burns, the county judge of Dallas county, by testimony fully satisfactory and in accordance with the law and the rulings of the county judge, that he then offered to pay the pre-emption money, and has ever since been ready and willing to pay into the county treasury…

The following information was filed before a justice of the peace: “STATE OF IOWA, ) Clayton County. j State of Iowa, ) Clark Thompson. ) Before T. C. Thompson, Justice of the £>eaGG‘ “ Albert P. White, a resident of Clayton county, Iowa, says that he has reason to believe, and does believe, that Clark Thompson has in his saloon building, in Strawberry Point, intoxicating liquors, such as alcohol, wine, brandy and whisky, and that said intoxicating liquors are owned and kept…

It is alleged in the petition that plaintiffs are the owners of certain lots in the city of Burlington upon which they had costly improvements, consisting of a brewery and appurtenances; that one of said lots, being No. 25, is bounded on the east by Front street, and others are immediately back of, or west from said lot 25; that said lot 25 is bounded on the south by Angular street; that according to the city plat Front street extends from the easterly line of said lot 25 to…

On the 18th day of November, 1872, the plaintiff commenced this action for the possession of certain lands, alleging that she is the owner, and- entitled to the immediate possession thereof. The answer denies that plaintiff owns the lands; alleges that defendant owns them, and by way of cross-petition asks that plaintiff’s title be set aside, and the title of defendant be quieted and established. On motion of defendant the cause was transferred to the equity calendar.

Appeal f rom Davis Circuit Court. Plaintiff brought an action in the Davis Circuit Court against J. O. Smythe, J. W. Barnes and the Burlington and Southwestern Railroad Company, and recovered therein a judgment against Smythe and Barnes jointly for $1,158.80, and another judgment against Barnes alone for $110.80. These judgments'were rendered upon'the claims sued upon in the action in which there was but one trial, and are included in the same record entry.

On the 25th day of May, 1873, plaintiff filed his petition, in substance as follows: First Count.

This is an action for tlie recovery of two horses, a buggy and two sets of harness. The plaintiff claims that he is entitled to the possession of said property as administrator of Matthew Bunbury, deceased; and alleges that said deceased was the absolute owner and entitled to the possession thereof at the time of his death. The defendant claims to be the absolute owner and entitled to the possession thereof, and also denies plaintiff’s right to the possession.

The facts of this case will be found sufficiently stated in Peilly v. Ringland et al., 39 Iowa, 106. The action was originally one of replevin brought by Peter Reilly for stacks of wheat, barley and oats, and damages for the wrongful detention thereof.

The plaintiff alleges that inc November, 1874, he delivered to defendant, at Ottumwa, three car-loads of cattle, in good condition, which defendant undertook, as a common carrier, to safely transport to Altoona, Iowa, and there deliver them to the plaintiff; that defendant did not safely deliver said cattle according to its undertaking, but that many of said cattle were killed, and others injured in the course of transportation, to plaintiff’s damage in the sum. of $364.

Action to settle a partnership and adjust the account between the members of the firm under the following article of partnership: “F. S. Boardman, having now a lease from Close Brothers for the paper mill at Ooralville and the power to run it, with certain franchises therein set out, this day assigns the same to Boardman & Co., a firm this day created, composed of F. S. Boardman and S. M. Close, who stipulate as follows: “The business of said firm shall be the purchase of…

The plaintiff showed in its petition in substance that the defendant was clerk of the city council of Keokuk, and that by ordinance of said city it was made his duty to act as collector of said city, and keep appropriate books; that in the discharge of his duty as collector he kept a cash book; that by ordinance it was provided that the mayor should have general supervision of all the city officers, and should, as often as he should deem necessary, examine into the condition…

The plaintiffs in this action were sued by the defendants, Johnston & Co., in the Circuit Court of Wapello county. After the issues had been made the case was removed by change of venue to the Circuit Court of Davis county, and judgment was rendered in that court in favor of the said Johnston & Co. This action is brought to enjoin the said Johnston & Co. from.collecting said judgment.

This cause was before us on a former occasion, on the appeal of plaintiff from a decree dismissing bis petition. The cause was then reversed, and it was ordered that, if plaintiff so elect, a decree in conformity with the opinion be entered in this court, or that the cause be remanded to the court below for the entering of such decree. See40 Iowa, page 196.

Application to the plaintiff as sheriff of Monroe county was made by the defendant in due form of 'law to cause to be assessed the damages to the owners by reason of the taking of the right of way for a railroad over nineteen tracts of land owned by as many different persons. The said sheriff proceeded to appoint six disinterested freeholders, as required by'Sec. 1244 of the Code, to assess the damages of the respective owners.

Action to redeem from a mortgage which is in form an absolute conveyance.

The defendant was convicted on an information before a justice of the peace, charging the offense of assault and battery. Upon an appeal taken by defendant, the District Court dismissed the cause for want of jurisdiction in the justice of the peace trying it. The State appealed from this decision of the District Oourt, which was reversed in this court. See 41 Iowa, 424.

Replevin to recover two colts. There was a trial to the court without a jury, and a judgment for plaintiff. Defendant appeals. The facts of the case appear in the opinion.

Action to recover the purchase price of a threshing machine, claimed to have been sold and delivered by plaintiff to the defendants. The plaintiff agreed to repair a second-hand machine, and the defendant, Baker, agreed to purchase the same when repaired if on trial it proved satisfactory. Baker was to execute notes for the price of the machine, and Schone agreed to sign the notes as surety for Baker. There was a judgment for plaintiff, and defendants appeal.

On the 26th day of January, 1874, one Milton Z. Price conveyed to the defendant, E. N. Cole, a lot in.Mason City, on which there was a mortgage to secure the sum of $1,837.50, with interest from June 1, 1871, at ten per cent. On the 17th day of March, 1874, one Dewey, who held the note and mortgage, obtained a decree of foreclosure against Cole for the amount due on the note, the clerk by mistake assessing it at $1,786.38, instead of $1,825.15, the real amount due.

The plaintiff claims as the assignee of seven contracts, executed by defendants, of one of which a copy is as follows: “Received of C. C. Cowell for Thompson in store for account and risk of C. C. Cowell, one hundred and eighty-three bushels No. 3 wheat, loss by fire, heating and the elements at owner’s risk.

The defendant is treasurer of the city of Des Moines. The plaintiff holds a judgment against said city for the sum of $7,500.

Action in equity to enforce an alleged right of redemption ' from a sheriff’s sale, after the expiration of the statutory period of one year.

This suit was brought to recover of defendant a reasonable compensation for boarding defendant and his minor son for several years. It is alleged that the boarding was furnished at defendant’s request, but that no agreed price was specified.

In tlie petition the plaintiff states that William Trout, now deceased, was his brother and that a “ strong affection existed between them on account of their'relationship; that prior to the year 1869, petitioner resided in the Dominion of Canada, and was not in affluent circumstances, and could with difficulty support himself and family, but that he had at that time secured a home and was laboring with better success and brighter prospects; that William Trout wrote to him…

Action to recover the value of a dog, maliciously and willfully shot and killed by the defendant. The answer denied the allegations, and averred “ the dog was killed on defendant’s premises while in the act of chasing, worrying, injuring and killing his domestic animals, consisting of horses, cattle, hogs, hens and chickens.” There was a jury trial, verdict and judgment for the plaintiff, and defendant appeals.

On the 12th day of October, 1870., the plaintiff commenced this action claiming of the defendant $75,000 for libel. Held: and, on the 22d day of April, 1872, the case was continued. On the 21st day of May, judge Bagg overruled the motion for a new trial, and ordered judgment to be entered on the verdict. This order was received and filed, and entered on the record May 25th, and judgment was afterward entered on the verdict by the clerk.

The plaintiff commenced this action before a justice of the peace, claiming of defendant, for the use of the school fund, the sum of one hundred dollars, for selling and giving intoxicating liquors to one John Manning, who was at the time intoxicated. The justice rendered judgment for one hundred dollars and costs. The caus^ was appealed to the Circuit Court, where the same judgment was rendered. The court submitted a finding of facts, as follows: “ 1.

This is an action upon three promissory notes. The answer admits the making of the notes, but alleges that at the time of the execution thereof defendants had been adjudged bankrupts, and had procured their discharges in bankruptcy and were released thereby from the payment of this and all their existing debts; that said notes were given for a debt contracted long before said adjudication in bankruptcy, and there was no consideration therefor excepting said former discharged…

The plaintiffs claim to be tbe owners of tbe undivided onelialf of 40 acres of land. Held: by purchase, three interests in the land, and that there were three other interests, and that the land had been sold for taxes, that he had bought it in, and would be entitled to a deed in October, 1867; that on the faith of such representations defendant purchased the land of Wilson, paying him full value therefor; that defendant…

The defendant, Searle, was clerk of the District and Circuit Courts for Mahaska county. A judgment was rendered in the District Court of said county, in favor of the county for the use of the school fund, for some six hundred and fifty dollars. The defendants in said judgment paid the amount thereof to the defendant Searle, as clerk, and he paid the same to one Ruan, who was county auditor.

The defendants petitioned the board of supervisors of Mahaska county for the establishment of a public road. The proposed road passed over certain improved lands of the plaintiff, and he made a .claim for damages. On the hearing before the board a compromise was effected by which all of the parties claiming damages, including the plaintiff, withdrew their opposition, and the order was made by the board establishing the road as a consent road.

This is an action in equity for the conveyance of real estate, and an accounting of the rents and profits. The plaintiff’s petition was dismissed, and he appeals.

On tbe 27th day of September, 1875, the plaintiff filed a “petition in the Circuit Court of Polk county, against the defendants, averring that in 186é they were duly incorporated under the laws of the State of Iowa; that at about the time of the incorporation, the city council of the city of Des Moines granted to them a valuable franchise, which in sub-' stance provided that, for the term of fifteen years then next ensuing, the plaintiff should have the exclusive privilege…

The plaintiff alleges in substance that the District Township of White Oak and the District Township of Oskaloosa was each respectively a municipal corporation, duly created and acting; that about the 22d day of June, 1867, the superintendent of schools, with the consent of the respective boards of directors of said corporations, attached a portion of Oskaloosa township to the District Township of White Oak, for school purposes; that the board of directors of White Oak…

Action oh promissory notes given in part consideration for a reaping and mowing machine, purchased by the defendant. The undisputed facts are that in June, 1872, the defendant purchased the machine of Charles Allen, who represented that he was agent of the plaintiffs, for one hundred and seventy-five dollars, and he paid Allen ten dollars in cash, and gave the notes sued on for the residue of the purchase money.

Action at law. The petition alleges that plaintiff on the 18th day of June, 1874, delivered to the Kansas City, St. Joseph & Council Bluffs Railroad Company, at St. Joseph, a box of household goods to be transported by the way of Hopkins to Albia, in this State, receiving a receipt therefor, of which the following is a copy: “Kansas City, St. Joseph & Council Bluffs R. R. Co., received of John O’Rourke, in apparent good order, except as below specified, the under named…

Appeal f rom Adair Circuit Court. Action in equity to enjoin the execution of a tax deed.

Plaintiffs are wholesale merchants at Des Moines, Iowa, and the defendant is a retail dealer, residing and doing busi-' ness at Sioux Rapids, in Buena Yista county.

The defendant was the owner of 31 acres of land in Jasper county on which he with his family resided, it being a homestead. In October, 1872, he sold and conveyed his said homestead to one Eberhart, for the sum of sixteen hundred dollars, and took a mortgage on said land for fourteen hundred dollars of the purchase money. Eberhart failed to pay the notes secured by said mortgage, and in March, 1874, defendant obtained a foreclosure of the mortgage.

<p> Appeal from Webster Circuit Cou/rt. </p> <p>. Action upon a fire insurance policy for the loss of a dwelling-house. There was trial by jury, verdict and judgment for plaintiff, and defendant appeals.</p>

Action for the recovery of forty acres of land based on a tax sale and deed. There was trial by the court, judgment for plaintiff, and defendant appeals.

In 1873, but whether before or after the Code took effect •does not appear, Nancy Neeley diéd intestate, without issue, seized of certain real estate. Her parents were dead at the' timé of her decease. The appellants, B. F. Wise and others, are her brothers and sisters. After the death of her mother, her father married Julia Ann McCoy, by whom he had three children.

This suit was brought to recover for mason-work in building a stone church. The petition asks for the establishment of a mechanic’s lien. It was claimed by the defendants that the work was unskillfully done. There was judgment for the plaintiff; defendants appeal.

Action to recover the value of two trunks and their contents. The facts are stated in the opinion. Trial without a jury. Judgment for plaintiff. Defendant appeals.

Lands of defendants were sold upon a decree foreclosing a mortgage executed by them to plaintiffs. At the next term of the court, and before the time for redemption had expired, defendants filed their motion to set aside the sale, which was overruled. They now appeal from that decisipn.

Action on policy of insurance. Article 14 of the policy is in the following words: “No insurance, whether original or continued, shall be considered as binding until actual payment of the premium, either in cash or by note, and where a note is received this company shall not be liable for any loss or damage under this policy, occurring at the time when such note or any part thereof, given for such premium in whole or in part, shall be past due or unpaid.” A premium note was…

On the 6th day of February, 1875, the plaintiff commenced ah action against S. A. Russell,, claiming of him the sum of $4,000, and caused T. P. Mathews and John Ledlie, as individuals and.as a copartnership, to be garnished. On the 6th day of May, 1875, plaintiff recovered judgment against the defendant Russell, in the sum of $3,000. Afterward, the garnishees appeared in person and by attorneys, and filed thbir answers.

Action for tbe recovery of the purchase price of an organ sold by plaintiff to defendant. The facts necessary to an understanding of the questions decided are stated in the opinion.

On the 7th day of December, 1871, the plaintiff recovered a judgment against defendant, Elwood Lindley, for about $138. In November, 1871, the defendant, E. R. Lindley, commenced an action against said Elwood Lindley, her husband, for a divorce, and alimony.

This action is upon a promissory note. In addition to the ordinary allegations pf a petition on a note, it is averred that the note was executed and delivered in the.State of Pennsylvania, and, it being what is denominated a judgment note, plaintiff took judgment thereon in rem, in that state, without any service of summons or notice on defendant; that she afterward commenced a suit on said judgment in the Cherokee Circuit Court, and declared thereon as a personal judgment;…

Action of replevin for a house not attached to land. There was a trial to the court, without a jury, and judgment for plaintiff. Defendant appeals.

Action in chancery. The petition alleges that John M. Jones sold to J. F. Roller, April 15, 1871, a block in an addition to the town of Knoxville, which was sub-divided into eight lots, numbered from one to eight consecutively, and executed a bond for a deed, to be delivered upon payment of the consideration, $600,. and interest at ten per centum per annum, according to the terms of a promissory note executed by Roller to Jones. The bond was hied for record April 28, 1871.

<p>Certiorari to Van Burén Circuit Court.'</p> <p>The defendant having been held in contempt of the Circuit Court, and a fine of $35 adjudged against him, these proceedings in certiorari were instituted by him, alleging that the court below exceeded its jurisdiction, and otherwise acted .illegally. The facts appear in the opinion.</p>

On the 12tb day of January, 1870, the plaintiff filed in the Wapello District Court a petition in substance alleging that, pursuant to an… Held: the county judge of Wapello county subscribed for one thousand shares to the capital stock of the defendant, of one hundred dollars each, payable in installments of five per cent per month, to be paid by the issuance of the bonds of said county, taken at par, and having twenty years to run, and that said county was to receive for…

The petition in substance alleges that about August 29th, 1871, plaintiff recovered against Matilda Trau a judgment for $391.64, and that at that time Matilda Trau was the owner and in possession of lot No. 462, in the City of Burlington, with the buildings thereon, upon which plaintiff’s judgment became a lien; that about the 2d day of July, 1872, Matilda Trau being about to remove permanently out of the State, made and caused to be recorded a deed conveying said' lot to…

The defendants were indicted and convicted for keeping and maintaining a nuisance. There was a jury trial in each case, and the time occupied in each case was three hours. The clerk taxed in each case a jury fee of $24.00. The defendants filed a motion to retax the costs. The court overruled the motion. Defendants appeal. -

These cases, prosecuted in chancery, involve substantially the same facts, and the. same questions of law arise in each. The Corning Town Co. seeks to set aside a tax title held by defendant, to the e se J of se J- section 34, T. 72, R. 34, and the other plaintiff, Loomis, upon the same state of facts, seeks to avoid a like title upon the west half of the forty acre tract of which the land claimed hy plaintiff in the other case is a part.

Appeal from, Van Bu/ren District Court. The defendants were indicted and convicted of the crime of nuisance and now appeal to this court.

The plaintiff and defendant were candidates for the office of superintendent of common schools. The defendant received a majority of the votes cast and the plaintiff in the manner pointed out by law commenced proceedings contesting the right of defendant to hold such office, and claiming that he was duly and legally elected and was entitled to have and hold said office.

Action in equity. The petition states that plaintiff is the owner of certain real estate described therein, having derived his title from the United States; that within a year previous to the commencement of the actiofi, he discovered on record in the proper county a deed conveying the premises to Osman Osier, signed by Cornelius Hurley, Sr., as attorney in fact for him, which deed was executed without his knowledge or authority; that said deed is fraudulent and casts a…

An indictment was presented against the defendants as follows: “The grand jury of the county of Clarke, in the name and by the authority of the State of Iowa, accuse Dick Dean and John Nealy of the crime of keeping a nuisance, committed as follows: The said Dick Dean and John Nealy, on the 14th day of January, in the year of our Lord 1815, in the county aforesaid, did unlawfully keep, own, control, continue, establish and manage a building for the purpose and intent of…

Action to foreclose a mortgage. The plaintiff sold the premises to the defendant Hanson and one Charles Wienkoop, now deceased. His administrator, Louis Cavalier, and his widow, Ernestine Wienkoop, are made defendants. The mortgage was given by said Hanson and Charles Wienkoop for the purchase money, and was executed at the same time that a deed of the premises was executed to them by the plaintiff.

The plaintiff claims to be the absolute owner of certain lands, and asked in his petition that defendants be barred from setting up or claiming any right or title thereto. The title of the plaintiff is based on a tax sale made on the 1st day of November, 1869, for the taxes of 1868. The defendants claim the tax sale and deed to be void. There was a trial to the court, and judgment rendered in favor of the plaintiff, and the defendants appeal.

On tbe 8th day of February, 1876, plaintiff filed her petition claiming of one Thomas McGrew damages for selling spirituous liquors to her husband, within the four preceding months. The petition alleges that the defendant, McCoid, owned the premises upon which the liquors were sold, and that McGrew dealt in intoxicating liquors ' therein with McCoid’s knowledge and consent.

This action was brought to enforce the specific performance of a contract, which was in the following words: “ This agreement, made and entered into this 19th day of January, 1875, witnesseth that M. McKenzie, hereby agrees to convey to Ole Lawson or Ills assigns the southwest quarter of the southwest quarter of section 28, township 94, range 41 west, on condition that said Ole Lawson shall pay off and discharge two promissory notes this day given by M. McKenzie to Gabriel…

This action was brought to the December Term, 1875, the petition having been filed October 26, 1875. The defendant answered December 7,1875.

On the 14th day of November, 1874, an indictment was presented against the defendants, accusing them of the crime of nuisance, committed as follows: “That on the first day of January, 1874, and other days, the defendants did, in the county of Bremer, use, occupy and continue a certain house, in which drunkenness, quarreling, fighting, breaches of the peace, gambling, prostitution and lewdness were carried on, and which was knowingly permitted by said defendants; said house…

This is an action for damages for injury to the person, property and means of support of plaintiff, because of the alleged sale of intoxicating liquors by defendant to Milton II. Good-enough, the plaintiff’s husband. The answer was a general denial. There was trial by jury, verdict and judgment for plaintiff for $154, actual damages, and $900, exemplary damages, and defendant appeals,

<p> Appeal from Muscatine District Oowrt. </p> <p>This action was brought by Catharine M. Merry to recover damages on account of personal injuries sustained by her, and. for loss by injuries to her horse and buggy from the falling of a bridge erected by the county of Muscatine, and constituting a part of a highway, while she was attempting to cross such bridge. There was a verdict for defendant. Pending a motion for a new trial, plaintiff died, and the administratrix of her estate was substituted as plaintiff. The motion was overruled and judgment was entered upon the verdict. The administra trix appeals.</p>

The plaintiffs hold a mortgage upon a lot in Council Bluffs, executed to them by the defendant, David Gray. The defendant, D. H. White, holds a judgment rendered prior to said mortgage, in the District Court of Pottawattamie county, against said Gray, in favor of one Kay, the same being now assigned to said White.

The object of tbe first of tlie above actions is to set aside as fraudulent, and because obtained by reason of undue influence, certain conveyances of real estate made by Arthur Wolcott to the defendant. The second to set aside for the same reasons, a will of the said Arthur Wolcott, whereby he devised to the defendant the real estate described in said conveyances.