Volume 60 — Iowa Reports

The plaintiff, a practicing physician, brings this action to recover of the defendant one hundred and four dollars and fifty cents, on account of medical attendance and medicines furnished Mrs. Johnson, a poor person. The cause was tried to a jm-y, and verdict was returned for the defendant. The plaintiff appeals. They, material facts are stated in the opinion.

This is a proceeding in the Circuit Court, sitting as a court of probate, upon a claim filed by plaintiff against the estate of which defendant is administrator. The full amount of the claim was allowed by the final order of the court, from which defendant appeals. The facts of the case appear in the opinion.

This is an appeal from an award of commissioners appointed by the sheriff, upon a proceeding for tbe condemnation of land for right of way. Tbe court, upon motion of tbe defendant, dismissed tbe appeal. A. L. Oonnable appeals. Tbe facts are stated in the opinion.

Afjpeal from Madison Circuit Court. Action in equity to restrain the sale of certain real estate belonging to the plaintiff, for the purpose of paying a certain special tax assessed by the city of Winterset, for the construction of a gutter. A temporary injunction was granted which was dissolved at the hearing. The city pleaded a counterclaim and asked that a judgment be rendered against the plaintiff for the amount of the tax. Such relief was refused and both parties appeal.

These cases involve questions touching the rights of the respective plaintiffs to appeal from certain assessments of damages, made in the condemnation of land for right of way for the Chicago, Milwaukee & St. Paul railroad in Emmet county. The Circuit Court dismissed the appeals, and both parties, in all the cases, appeal to this court. The plaintiffs first perfected their appeals and will therefore be designated as appellants.

This is an action in chancery to foreclose a mortgage upon real estate executed by Moses Parks and his wife, Lucinda Parks, to secure their promissory notes. Pending the proceedings in the court below both of the mortgagors died. John Rutledge, executor of Moses Parks, and other persons, were substituted as defendants.

This is an action of replevin for two horses and harness, and a wagon, which it is alleged the defendant, as a sheriff, siezed under an execution against the plaintiff. The plaintiff alleges that the property is exempt from execution.

It appears from the averments that Tostevin & Le Ray is a co-partnership in the manufacture of fanning mills, and that Peter Le Ray and J. P. Tostevin are the individual members of the partnership, and it is alleged that on the 14th of February, 1880, one W. IT. Keefer made and delivered to the plaintiffs an order in these words: “Messrs, Tostevin & Le Ray, Raeine, Wis.

This action was brought before a justice of the peace to recover $11.76. Judgment was rendered for the plaintiffs for the amount claimed. The defendants appealed to the Circuit Court. The plaintiffs filed a motion to dismiss the appeal on the ground that the amount did not exceed $25. The court sustained the motion and dismissed the appeal. From the order sustaining the motion and dismissing the appeal the defendants appeal to this court.

Action to set aside and declare void the sale of certain real estate for delinquent taxes voted in aid of the construction of a railroad. Judgment for the plaintiff and the defendant appeals.

Appeal from Union (Jweuit Court. Action for tbe recovery of specific personal property. From tbe judgment rendered tbe defendant appeals.

The plaintiffs bring this action for the possession of certain real estate, and claim title thereto as the children of the late Minerva Pierson, deceased, begotten by her husband, George W. Pierson. The defendant for answer claims title to the land under a deed of conveyance from Minerva Pier-son and her husband. The plaintiffs filed a demurrer to the answer, which the court overruled. The plaintiffs appeal.

Action upon a promissory note. The defendant for answer averred that the' note was materially altered after its execution. There was a trial without a jury, and judgment was rendered for the defendants. The plaintiff appeals,

This is a suit, aided by attachment, upon seven promissory notes executed by the defendants to the order of Hulbert Bros., and by them indorsed before maturity, and held by the plaintiff as collateral security for money advanced to Hulbert Bros. The defendant for answer alleges that the notes were fully paid in money and property to Hulbert Bros., who were authorized by plaintiff to receive such payment.

Action at law to recover for services rendered by plaintiff, who is a real estate broker, in selling a tract of land owned by plaintiff. Judgment upon a verdict was rendered for plaintiff. Defendant appeals. The facts of the case are stated in the opinion.

This is an appeal of H. E. J. Boardman, receiver in case of How & Co. and Greer & Co., from a decree requiring bim to pay over to the clerk of the court the amount of money paid to and received by Mm, found by the court to be $1,308.95. The facts are stated in the opinion.

Action upon certain promissory notes, and for the foreclosure of a mortgage upon certain real estate given to secure said notes. The answer admitted the execution of the notes and mortgage, but averred that the defendant M. V. B. Howell, at the time the same were.executed was mentally incompetent to contract, by reason of the excessive use of intoxicating liquors. There was also the further defense that the’ notes and mortgage were usurious.

Action at law to recover the price of a stock of goods sold by plaintiff to defendant, Winters. There was a judgment, upon a verdict, against both defendants, who now appeal to this court.

<p>1. Husband and Wife: family expenses: statute of limitations. The obtaining of a judgment against the husband alone, though with his consent, upon a demand for family supplies, for which the property of both the husband and wife was originally liable under § 2507 of the Revision of 1860, did not operate to extend the time of enforcing the claim against the property of the wife, until such judgment was itself barred by the statute of limitations. Lawrence v. Sinnamon, 24 Iowa, 80, distinguished.</p>

<p>1. Bankruptcy: assignee’s title to realty: federal jurisdiction exclusive. The legal title to certain real estate was in B. & (Jo., who were adjudged bankrupts, whereupon the legal title vested in their assignee, who afterwards, with the approval of the bankruptcy court, conveyed the property to T. But the equitable title was in P., who, before the petition in bankruptcy was filed, had executed a mortgage on the property. This action bqing brought in the State court, on the same day when B. & Co. were adjudged bankrupts, against P., B. & Co. and T., to foreclose the mortgage, held that, since the relief asked could be granted only by holding the legal title of the assignee to be inferior to the equitable title of P., such relief must be sought in the federal courts, whose jurisdiction in such case is exclusive. Wetmore v. McMillan, hi Iowa, 344, distinguished.</p>

Apjyealfrom Johnson District Gowt. Action in Equity. Tbe relief asked is that the plaintiff recovertjudgment against tbé defendant, Termehr, and that a conveyance of real estate to the defendant, Goetz, be set aside as fraudulent, or that an equitable lien be established tliereon in favor of the plaintiff, and that the premises be sold to satisfy such lien. The court denied the relief asked and dismissed the petition. The plaintiff appeals.

Action at law to recover damages resulting from a nuisance, and asking for an abatement thereof under Code, section 3331. There was a judgment upon a verdict for defendant; plaintiff appeals.

The defendant was convicted of the crime of larceny, and sentenced to the penitentiary for three years. He now appeals to this court.

This is an action in equity by wbicb it is sought to subject certain real estate, the'title to which is in the appellant, to the payment of a judgment against GL W. Thurlby, the husband of the defendant. There was a decree for the plaintiff, and defendant, Harriet Thurlby, appeals.

This is an action of replevin for a quantity of lumber. The cause was tried to the court, and judgment was entered for the plaintiffs. The defendants appeal.

<p>1. Practice in Supreme Court; filing bill of exceptions: regularity presumed. It is neither necessary nor usual for the abstract to state that the bill of exceptions was filed in the clerk’s office. In the absence of controversy, this is assumed; and, in case of controversy, recourse is had to the transcript. And when the transcript shows that the bill of exceptions was signed by the judge in due time, and filed in the clerk’s office at some time, although the date of such filing may be a matter of doubt, it will be presumed, in the absence of all showing to the contrary, that it was filed within the proper time.</p> <p>2. -: -: transcript consulted. Where a controversy arises as to the contents of a bill of exceptions, a statement in appellee’s abstract not controverted by appellant will be taken as true; but if the appellee in his abstract states that no proper bill of exceptions has been filed, and moves to strike out the evidence on that ground, we do not take such statement to be true, even though it be not controverted, but refer to the transcript for the determination of the question.</p> <p>3. Practice: law action: preserving evidence and instructions. In a law action, it is sufficient for the purposes of an appeal, if the evidence is properly made a part of the record by bill of exceptions, and the instructions are identified by bill of exceptions, or in any other proper manner. It is not necessary that the evidence and instructions be certified by the judge.</p> <p>4. -: bill of exceptions : identifying evidence. Where a bill of exceptions referred to the evidence in the following manner: “The following testimony and rulings were had and reduced to writing by said reporter, being all the testimony on said trial: (Here insert evidence in full):” held a sufficient and unmistakable reference to the testimony taken down by the reporter and by him duly certified and filed in the clerk’s office. i(Code, § § 2334 and 3777.)</p> <p>5. -:-: identifying instructions . Where the court instructed the jury orally, and the instructions were to be taken down by the reporter, and by him duly certified and filed with the evidence, and the bill of exceptions referred to such instructions in the following manner: “After the argument of counsel in said cause, and by and with the consent of counsel, the court instructed the jury orally, which was reduced to writing by the reporter, as follows: (Here insert instructions):” — Held a sufficiently definite reference to identify the instructions.</p>

Action to foreclose a mortgage in the ordinary form, executed by Tilomas E. Palmer and wife. John H. Gear, trustee, and the First National Bank of Chariton, were made defendants, it being alleged that they were lien holders junior to the mortgage. Thos. E. Palmer and wife filed a cross-petition which was answered by the other defendants. There was a decree foreclosing the mortgage, but the relief asked for in the cross-petition was denied. The defendants, Thos.

This cause was before tbe court at. a former term. An opinion was filed reversing the decree of tbe Circuit Court. See 57 Iowa, 197. Tbe cause now comes on for bearing on motion of plaintiff for a decree in tbis court, grabting such relief as tbe court below should have granted, and to which tbe plaintiff is entitled under tbe pleadings.

Action at law to recover a statute penalty: A demurrer to the petition was sustained, and judgment was rendered therein for defendant. Plaintiff appeals.

Action by a sub-contractor to establish a mechanic’s lien, which the court refused to the extent claimed by the plaintiffs, and they appeal.

This is an action to recover upon a written and printed contract or order for the erection of lightning rods upon the dwelling house of the defendant. It is claimed that the rods were placed upon the building in accordance with the contract, and judgment is demanded for the amount named therein. A mechanic’s lien was filed for the claim, and the petition is in equity, and prays for a decree foreclosing the lien.

The parties are school-districts organized under the laws of the State. The territory of the defendant formerly belonged to plaintiff. The proceeding was instituted by arbitration. for the equitable division of the assets and liabilities of the old district between it and the new district. Upon motion of plaintiff judgment was rendered against defendant for a sum greater than was awarded by the arbitration, whereupon it appealed to this court.

Action upon a contract to deliver corn. The plaintiff avers in his petition that the defendant entered into a written contract with him, whereby he agreed to deliver to him at Anita, Iowa, in May, June and July, 1881, sixteen hundred bushels of dry, sound, shelled corn, at twenty-six cents per bushel; that the sum of $5.00 was paid by him to the defendant to apply upon tlie contract and that the defendant had wholly failed to deliver the corn as agreed.

In 1872 the plaintiff sold to J. R. Flaugber one lady’s gold watcb and chain for $96.65, one ring for $6.00, and other small articles of jewelry, amounting in all to $107.65. On the 15th day of July, 1872, J. R. Flaugher executed his note to plaintiff, on account of said articles, for $107.65, payable in sixty days, with interest at ten per cent.

Actions to foreclose separate mortgages. There was a decree in each case granting the relief prayed for in the respective petitions. Defendants in each case appeal.

The plaintiff commenced an action against the defendants, alleging tbat tbe defendants sold and delivered to plaintiff, and warranted to be sound, a certain borse which had the glanders, and which died of said disease soon after it came into the possession of the plaintiff.

This is au action of mandarrms by which it is sought to compel the defendant, who is mayor of Columbus City, to issue to the plaintiff a license authorizing him to sell wine and beer, and also to keep billiard tables, for the period of one year from the thirteenth day of April, 1881. Upon a tidal the District Court refused to grant the writ prayed for by plaintiff, and he appeals.

Action by a physician to recover for medical and surgical services rendered by him to a pauper. The cause was tried by the court without a jury and judgment rendered for defendant. Plaintiff appeals.

This is an original proceeding in tbe Supreme Court. Tbe plaintiffs are tbe lieirs at law and devisees of John B. Casey, wbo died in tbe State of Kentucky. Tbe defendant, Stewart, was appointed administrator of said estate in Iowa.

Action in equity. The defendant pleaded a tender and judgment was rendered against the plaintiff for costs. The plaintiff appeals.

<p>1. Invalid Tax Sale: redemption; amount to redeem. Where the owner of land seeks to redeem the same from an invalid tax-sale, he is required to pay the purchaser only the amount of his hid, with six per cent interest thereon.</p>

This is an action for the value of two horses of which the plaintiff alleges he was the owner, and that defendant converted the same to his own use. The answer was a general denial. A jury was waived, and a trial was had before the court, and judgment was rendered for the plaintiff. Defendant appeals.

This is an action for a balance due on a promissory note executed by the defendants and one Shetler to the plaintiff. There was a trial to the court which resulted in a judgment for the plaintiff, and defendants appeal.

Action to recover for injuries sustained on defendant’s sidewalk. Jury trial. Verdict and judgment for plaintiff for $1,000. The defendant appeals.

The defendant was convicted upon an indictment charging him with the seduction of a woman of previously chaste character. He now appeals to this court.

This is an action at law against Charles L. Sumbardo, and Wm. Hintrager, as co-partners, to recover upon an account for goods sold to C. L. Sumbardo & Co. bj plaintiff. There was a judgment upon a verdict for plaintiff. Defendant appeals. The facts of the case necessary for a proper understanding of the points ruled appear in the opinion. -

Action upon an account. In 1875, the firm of Wallbaum, Bridges & Oo. did certain work in constructing the Chicago, Clinton & Western Railroad. This action is brought by the plaintiff as the alleged assignee of the account for such work, and against the defendant, Hinckley, upon an alleged promise to pay for the same.

Action in equity to redeem certain real estate from an alleged mortgage. The plaintiff, on the 10th day September, 1880, obtained of defendant $100, and at the same time executed to him a deed of the premises in controversy. The defendant at the same time executed to the plaintiff an agreement in these words: “On or before the 10th day of March, I agree to sell to J. M. Wyllie the house and lot I bought from him to-day, for the consideration of one hundred and fiv-e dollars.

This is a proceeding in equity for a decree that a deed absolute on its face is a mortgage, that defendants account for moneys received from rents and sales, that plaintiff may be allowed to redeem on payment of any balance due, and that his title be established and confirmed. The court dismissed the plaintiff’s petition, and he appeals.

Action for judgment on a promissory note and for the foreclosure of a mortgage. The defense pleaded was usury, and upon a trial a judgment- and decree were rendered for the plaintiff. Defendant appeals.

The plaintiffs aver in their petition that the defendant as a common carrier entered into an agreement with them, whereby it undertook to transport for them a car-load of butter from Cedar Rapids, Iowa, to Denver, Colorado, and to deliver the same in good condition; that the butter was delivered to the defendant at Cedar Rapids in pursuance of such agreement, but that the defendant failed to deliver the same at Denver in good condition, whereby the plaintiff sustained…

Action in equity to redeem from an execution sale. The defendant was formerly the wife of the plaintiff. She obtained a divorce and a decree for alimony. Under the decree she caused certain real estate, the title to which was in the plaintiff, to be sold on execution, and she became the purchaser.

The plaintiff alleges in his petition that, being the owner of a certain promissory note, he delivered it to the defendant, in 1867, for collection-^ that the defendant failed, to look after the collection of the note, and, in consideration of such neglect and the probable loss of the money due on said note, the defendant, in 1876, promised 'the plaintiff in writing that he would pay said note, and further that, in 1877, the defendant verbally promised to pay the amount of…

<p>1. Execution: action auxiliary to: interest in land. Where defendant B. made advances to defendant V., with the understanding that he should be re-paid out of the profits of certain real estate which he purchased at the request of V., and that the remainder of the profits should be equally divided between them, held that, in the absence of any evidence that the arrangement was entered into to delay the creditors of V., he had no interest in the land which could be subjected to an execution against him. The most he had was an interest in the profits if any.</p>

<p>1. Former Adjudication: binding only between parties. A former adjudication in a proceeding to which the real parties in interest were not made parties, does not bar a subsequent action by the same plaintiff against the real parties in interest.</p> <p>2. Execution: off-setting mutual judgments: attorney’s lien: assignment. T. had sued H., and, after several appeals and re-trials, it resulted that there was judgment in favor of H. against T. for $326.24 debt, and $214.48 cost, and in favor of T. against H. for $175.75 costs which were payable to T. personally. But before these judgments were rendered, H’s attorneys had, by proper notice, claimed an attorney’s lien for their services in the case, upon whatever might be found due from T. to H. After the judgment against T. was rendered in favor of H., he assigned it to his attorneys in consideration of their fees alone. It appears that H. was insolvent. After this, executions were issued upon both judgments. Held that the lien attached to only so much as should he found due from T. to H. upon the adjustment of the whole case; that is, the difference between the two judgments; and that the assignment carried to H.’s attorneys only this difference; and that it was the duty of the sheriff holding both executions to off-set the one judgment against the other, under section 3097 of the Code, and to receive from T. the difference between the two judgments in satisfaction of both executions. Bell v.\ Perry & Townsend, 43 Iowa, 368, distinguished.</p>

<p> Appeal from. Harrison District Court. </p> <p>Action for libel. A demurrer to the petition was sustained. Plaintiff appeals.</p>

Action to recover damages sustained by the burning of certain stacks of wheat and other property by fire, set out as the plaintiff claims, by an engine belonging to defendant. Trial by jury, judgment for the plaintiff, and defendant appeals.

Action upon a contract. In December, 1874, the defendant’s intestate, Peter Roberts, and others, entered into a written contract with Peter A. Dey, the plaintiff’s assignor, whereby they agreed to pay Dey annually certain sums of money respectively, the amount agreed to be paid by Roberts annually being $50.

This is an action of replevin for certain articles of personal property.

This is an action for a personal injury. There was a trial by jury which resulted in a verdict and judgment for plaintiff, and defendant appeals. ' The facts of the case appear in the opinion.

Action upon a contract. The plaintiff avers in its petition, in substance, that the plaintiff is a corporation; that it was in debt, and had need to raise money by subscription to pay the indebtedness; that several persons subscribed and promised to pay the plaintiff various sums respectively; that among them the defendant subscribed and promised to pay the plaintiff $50; that the plaintiff, relying upon the subscriptions, borrowed of one Jamison the amount necessary to pay…

<p>1. Mechanic’s Lien: priority oyer senior mortgage. While it is true that, under section 2135, subdivision 4, of Miller’s Code, a mechanids lien will, under certain circumstances, have priority over a senior mortgage, yet this provision has no application to a case where the mortgage was foreclosed and the premises sold thereunder, before the materials for which the lien is claimed were furnished.</p>

This is an action upon a promissory note. The defendant failed to appear, and judgment was rendered against him by default. He afterwards appeared and moved to set aside the judgment and default. This motion was overruled, and defendant appeals.

This is a proceeding by certiorari to review the action of the board of supervisors of Delaware county, in submitting to the electors of said county the question of relocating the county seat of said county at the town of Manchester. The court adjudged that the action and proceedings of the board of supervisors, in ordering a vote upon the question of the re-location of the county seat, be affirmed. The plaintiffs appeal. The facts are stated in the opinion.

<p> Appeal from Shelby Cvrouit Court. </p> <p>Action eor slander. There was a judgment upon a verdict for defendant. Plaintiff appeals.</p>

Action to recover damages for the breach of a covenant against incumbrances in a conveyance of real estate. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals.

Action commenced before a justice of the peace to recover for damages alleged to have been done by the defendant’s cattle and hogs.

Action on a policy of insurance against loss or damage by fire. The policy contained a provision, which, was made a warranty, that any other insurance, whether valid or -invalid, would render the policy void, unless the consent of the company thereto was indorsed on the policy in writing. This was pleaded by defendant as a defense. There was no reply. Trial by jury, and judgment for the plaintiffs, and defendants appeal.

Action to set aside a sheriff’s deed of forty acres of land, and to quiet title thereto. Both the plaintiff and defendant claim under one Wilson Jewett. The defendant brought an action in attachment against Jewett, and levied upon the land, on the 24th day of August, 1876. In December of the same year he obtained judgment, caused the land to be sold upon execution, and purchased the same at execution sale.

These actions are submitted together as arising to some extent out of the same facts. The first is brought by David Jack, to recover rent upon an alleged lease of 240 acres of land. The second is brought by Mary E. Jack, to recover possession of 80 acres of the same land. The matters of defense will be set out hereafter. The actions were tried as equitable actions.

Apjyeal from Benton Circuit Court. In November, 1881, Gf. F. Moulton was engaged in the business of buying and shipping grain. He owned a grain elevator, office and scales, at Mt. Auburn, in Benton county, which were situated on land belonging to the B., O. R. & N. Railroad Company. He also owned at the same place three cribs of corn. He carried on a branch of his business at Garrison, in Benton county, where he had one crib of corn.

Action upon a promissory note. There was' a judgment upon a special verdict for plaintiff. Defendant appeals. The facts of the case are stated in the opinion.

This is a contest between tbe plaintiffs as mortgagees, and tbe defendants as attaching creditors, of certain personal property, for priority of lien. The court found in favor of plaintiffs. Tbe defendants appeal. Tbe facts are stated in the opinion.

This is an action upon two promissory notes, one for $800 and one for $1,200, and to foreclose a mortgage executed to secure them. Decree for plaintiff. Defendants appeal. The material facts are stated in the opinion.

Action upon three promissory notes. Defense that the notes were given for plows purchased by defendants of the plaintiffs, which plows were worthless, by reason of being made of defective materials. There was a trial by jury, and verdict and judgment for the plaintiffs. Defendants appeal.

This is an action for a divorce and alimony. The defendant, Coenan, is the holder of a mortgage upon certain real estate in which alimony is claimed, and he was made a party defendant under the claim that the mortgage was made by the defendant, Sesterhen, to him, without consideration, and for' the purpose of defrauding the plaintiff. Ooenan answered the petition, and his rights were determined in the action, without objection to the joinder of parties.

This action was brought to recover for certain money alleged to belong to the plaintiff, and to have been collected by the defendant for the plaintiff’s use.

Action brought before a justice of the peace upon a promissory note, where there was a judgment for defendant. Upon appeal to the Circuit Court, judgment was rendered for plaintiff; defendant appeals.

The Chicago & Northwestern Railway Company was garnished as a debtor of Jacob Kernes. Upon the answer of the company judgment was rendered against it for $45.50. The railway company appeals. .

This is an action in equity for tbe foreclosure of a mortgage. The petition was dismissed. The plaintiff appeals. The facts are stated in the opinion.

Action in attachment upon two promissory notes. The defendant admitted the execution of the notes, but pleaded, by way of counter-claim, damages for breach of warranty in the sale of a horse, and for wrongfully suing out the attachment and expenses incurred in defending against the same. He asked judgment for $57, and costs. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff for $1.37 damages, and $80.25 costs.

v Action for damages for killing a steer. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

The plaintiff alleges that the defendant, Alexander Haley, as constable, willfully and with intent to oppress the plaintiff, levied an execution upon a double seated two-horse wagon, well knowing that it was exempt from execution, and took and carried it away, and deprived the plaintiff of the use of it. Judgment is asked against the defendant for $200. There was a jury trial, resulting in a verdict and judgment for the plaintiff in the sum of $25.75. The defendant appeals.

On the 27th day of October, 1880, J. & P. Sullivan filed, on the probate side of the Circuit Court, a petition as follows: “Now come J. & P. Sullivan, judgment creditors of the estate of James O’Neill, deceased, and state as follows: That heretofore, on the 27th day of February, A. D. 3877, they obtained a judgment against James O’Neill, in his lifetime, for the sum of $58.15, in the Circuit Court of Dubuque county, which became and was a lien upon O’Neill’s real estate in…

The defendants and others were petitioners for the establishment of a public road in Winneshiek county. The line of the proposed road passed over certain lands of the plaintiffs, and they filed a claim for damages in the sum of two hundred dollars.

<p>1. Kailroads; violation oe Sunday law: damage to stock. A railroad company incurs no other penalty for running trains on Sunday than the fine provided by section 4072 of the Code. The liability of such company for killing an animal by a train run on Sunday is to be determined by the same rules as if the accident had occurred on a secular day.</p>

Action in chancery to set aside the conveyance of certain lands made by defendant, Thomas Farrell, to his co-defendant, Michael, on the ground that it was executed to defraud plaintiffs, who are judgment creditors of Thomas, by defeating their judgments. The petition prays that the land may be declared to be subject to the lien of plaintiffs’ judgments. Upon a trial on the merits, a decree was entered granting the relief prayed for in plaintiffs’ petition. Defendants appeal.

This is a controversy as to the ownership of 100 acres of land in Jasper county. The plaintiffs are the heirs at law of Peter Chambers, deceased, who was the owner of the land at the time of his death. The defendant, William Watson, claims to be the owner under a devise made in the last will and testament of Peter Chambers. The Circuit Court held that the will was inoperative as to the land in question, and gave the plaintiffs judgment for the possession thereof.

This is an action brought in the court below against defendant, C. F. Rollins, upon a promissory note. The Union Pacific Railway Company was attached as garnishee. ■ There was a trial between the plaintiff and garnishee, and a judgment was rendered for the plaintiff, from which the garnishee appeals.

District Court. In January, 1877, George F. Wright, one of the defendant’s commenced an action against Amasa E. Swift for the recovery of $16,000, and caused to be attached seven hundred and forty-nine shares of the Council Bluffs Gas Light Company. At the April term, 1877, A. E. Swift entered an appearance and signed a stipulation for the continuance of the cause to the following November term.

This is a proceeding for an injunction to restrain the sale under execution of the plaintiff’s homestead. The petition alleges in substance the following facts: In October, 1870, the plaintiff subscribed $100 to the Chicago & Southwestern Railway Company, and gave his promissory note therefor.

Action iu chancery to foreclose a mortgage. Upon a trial on the merits, plaintiff’s petition was dismissed; he now appeals to this court.

Action for specific performance, and the recovery of a money judgment against the defendants. They pleaded the statute of frauds and a prior adjudication. The court rendered a, money judgment, as asked, but refused to decree a specific performance, and both parties appeal.

Action upon a bond. The plaintiff at the time of the acts complained of was the clerk of the District and Circuit Courts of Mahaska county, and the defendant, D. H. Le Suer, was his deputy, and one Rhinehart was surety ujion Le Suer’s bond. Rhinehart has since died testate, and the defendants, John M. McKinley and J. W. Smith, are executors of his will.

This is an action upon an account for goods alleged to have been sold to the defendants as partners. Judgment was demanded against the defendants severally. There was a trial to the court without a jury and judgment was rendered against the defendant Hintrager, and he appeals.

Action for a divorce. Upon a trial on the merits the Circuit Court dismissed plaintiff’s petition; she now appeals to this court.

Appeal frofi Dallas Gi/rcuit Court. The defendant was indicted for laraeny. He was tried, convicted, and sentenced to the penitentiary for eighteen months, and he appeals.

This action was commenced in 1878, as an action at law, aided by attachment, to recover of the defendant an alleged balance of $150, claimed to be due the plaintiff on an unsettled partnership account between the parties, growing out of their business in operating a thrashing machine, in the year 1877. An attachment was issued and was levied upon the defendant’s interest in a thrashing machine owned by the parties.

Action to recover for sidewalks constructed by the plaintiff, on a street in front of the defendant’s premises. Trial to the court, judgment for the defendant, and the plaintiff appeals.

Action for divorce on the ground of inhuman treatment. The defendant denied the allegations of inhuman treatment. There was a decree for the plaintiff. The defendant appeals.

This is an action to recover damages for injuries sustained by plaintiff on the defendant’s sidewalk. The trial resulted in a verdict and judgment for plaintiff for $500. The defendant appeals.

<p>1. Contract: breach op: right op action by delinquent party. Where defendant agreed with plaintiff to deliver to him a certain amount of com, and received $70 as part payment, but when he offered the com, plaintiff refused to receive it, held that plaintiff could not thus break the contfact, and then maintain an action against the defendant for $70, less the amount that defendant was damaged by his refusal to receive the com.</p> <p>2. Assignment of Error: must be specipic. Where a motion for a new trial was based upon the ground that the verdict was contrary to the evidence, and upon five other grounds, an assignment of error in these words: “The court erred in overruling plaintiff’s motion for a new trial,” is not “as specific as the cause will allow,” and, therefore, not sufficiently specific, under section 3207 of the Code, to warrant this court in inquiring whether ornot the verdict is supported by the evidence.</p>

The plaintiff is the duly appointed and qualified administrator of the estate of one Harrison Y. Osborn, deceased. As such he brings this action to recover of the defendants for certain money, which it is alleged belongs to the estate, and has come into the hands of the defendants, and is wrongfully retained by them. The defendants for answer pleaded a general denial.

The defendant and proponent filed in the probate court a paper purporting to be the will of her deceased husband, Iiosea Milburn, and asked that the same might be admitted to probate. The plaintiff and contestant filed and pleaded certain matters which she claimed amounted to a revocation of the will, and objected to its probate. To the matter pleaded by the plaintiff, the defendant demurred, and the demurrer was sustained. The plaintiff appeals.

These cases are submitted together as arising out of the same state of facts, and involving the same .questions of law. The plaintiffs brought their actions in attachment respectively against the defendant Kendall, and levied upon a small stock of goods. Garrett intervened in each action, averring in his petition of intervention, in substance, that he is the owner of the stock by purchase from Kendall.

<p>1. Will: REVOCATION BY CANCELLATION: FACTS NOT CONSTITUTING. The cancellation of the signature to a ■will, made by drawing a scroll through it in such a manner as not to render it illegible, where such a cancellation is not witnessed in the same manner as the making of a new will, as required by section 2330 of the Code, held not to constitute a revocation of the will.</p> <p>2. -: REVOCATION of: EVIDENCE: TESTATOR’S DECLARATIONS OF his intention. The statute requires that, in order that an act may work the revocation of a will, it must be done with that intention. When, therefore, the act is sufficient, to work a revocation, if done with that intention, the declarations of the testator may be admissible to show the intention; but they are not admissible for that purpose, when the act done does not amount to a revocation, even if done with that intention.</p>

The plaintiffs brought this action in attachment against the defendant, Albert, and caused the attachment to be levied upon a stock of goods. On the next day, W. IT. Dunlap bi’ought a similar action, and the attachment was levied on the same stock of goods, and he now intervenes hex-ein. On the same day on which Dunlap levied upon the goods, but after such levy, Albert made a genei’al assignment for the benefit of his creditors to Jaxnes Braidwood, who intexwenes herein.

Plaintiff filed a claim against the'estate of Polly Heald, of which defendant is administrator, for $241.60, on account of board, nursing and medical treatment to the intestate, from January 1, 1868, to October 26, 1879. The claim was admitted by the administrator’s indorsement thereon. Put it was contested, and came up for adjudication by the Circuit Court sitting as a court of probate.

This action was brought to recover damages for an injury received by the plaintiff hy being thrown from a wagon in one of the streets of Ottumwa, the accident having been occasioned, as it is alleged, by reason of one of the wheels of the wagon coming in contact with a stone, which the city authorities had negligently allowed to remain upon the street.

The plaintiffs appeal from the judgment of the Des Moines Circuit Court approving the report* of John Patterson as guardian. The facts are stated in the opinion.

The plaintiff is a physician, a resident of the defendant, and brings this action to recover damages caused by a horse and buggy being precipitated down a declivity in one of the streets of the city. It is stated in the petition that “ Eighth Street is one of the prominent and much used streets in said city.” Such street runs practically north and south from Division, across Market, to Yalley Street.

Action to quiet tbe title in plaintiff to an undivided moiety of a lot in the city of Davenport. A demurrer to plaintiff’s petition was sustained, and a decree dismissing- it was entered, from which she appeals^

The defendant was indicted and convicted of obtaining money upon false pretenses and was sentenced to the penitentiary for the term of three years. He new appeals to this court.

Action to recover damages alleged to have been sustained by reason of the unlawful appropriation of .certain corn upon which the plaintiff had a landlord’s lien. The defendant concedes tthat he appropriated the corn, but denies that he is liable therefor, because he says that he purchased the same of the plaintiffs tenant, the owner of the corn, as he had a right to do, and the plaintiff’s lien, if any, thereby became divested.

The defendant was convicted of tbe crime of seduction, and sentenced to tbe penetentiary for two years. He appeals. Tbe facts are stated in tbe opinion.

Action to recover possession of certain land in the city of Ottumwa. The land in question is a part of the bed of the JDes Moines Eiver, between high and low water mark, on the north side. The defendant, and those under whom it claims, have maintained and operated a railroad across the land since 1859.

<p>1. Bailroads: injury to stock running at large: runaway team. A team of horses which are harnessed to a wagon, and which have escaped from the control of their owner, is included under the term “ live stock running at large,” as used in section 1289 of the Code; and under that section, a railway company whose train ran upon and injured a team so running at large, at a place where it had the right to fence its track, is liable to the owner for his damages.</p> <p>2. -: -: negligence oe owner. The mere negligence of the owner in such a case will not defeat his recovery. The statute provides that the company shall he liable unless the damage was caused by the willful act of the owner or his agent.</p>

The plaintiffs commenced this action to recover of the defendants the sum of $321.70, for certain horse collars sold and delivered to defendants.

The defendant was convicted of the crime of disposing of intoxicating liquor to one Johnson, an intoxicated person. Judgment having been rendered upon the verdict, he appeals to this court.

On the.17th of July, 1875, one John Coates purchased' 160 acres of land of the Iowa Railroad'Land Company. The purchase price of the land was $1,056. He made a cash payment of $211.20, and contracted to pay the balance of the purchase-money and interest thereon in installments; and entered into four written agreements (one for each forty acres of the land) with the Land Company, providing that upon full payment of the purchase-money the land should be conveyed to him.

<p> Appeal from Story District Court. </p> <p>Indictment for larceny, trial by jury, verdict guilty, and judgment. Tbe defendant appeals.</p>

Action at law to recover damages for personal injuries resulting from a fall upon the sidewalk of the city, caused by its defective condition. ' There was a judgment upon a verdict for defendant. Plaintiff appeals.

Appeal from Webster District Court. The defendant was indicted for the crime of embezzlement-. He was tried and convicted,' and now appeals to this court.

Action in equity. The relief asked is that it be established by a decree of the court that Henry W. Lee was a trustee in respect to certain real estate described in the petition, and a building erected thereon, and that his estate is entitled to be reimbursed out of the trust property the amount of advances made by him in excess of the receipts, and that the same be established as a first lien upon the real estate, and the same sold under the decree of the court, in default…

Action in chancery. The petition prays that defendants may be enjoined and restrained from laying down a switch and side-track, connected with the Chicago, Burlington & Quincy Railroad, upon certain streets in the city of Burlington. A preliminary injunction in accord with the prayer of the petition was allowed. From the order allowing the injunction defendants appeal.

Action in equity to reform a policy of fire insurance, and enforce payment for a loss alleged to have occurred under it. The building which the policy purports to cover is described as being on the southeast quarter of section 2, township 70, Yan Burén county. The building destroyed was on the southwest quarter of the section. The policy ran to the plaintiff, ~W. E. Baldwin.

This contest involves the power and authority of the defendant to order the cost of a sewer on Valley Street in said city, and along and in front of real estate owned by the plaintiff, to be paid by the owners of adjacent property. The question involved is whether the adjacent property owners shall be liable for the construction of the sewer, or whether it shall be paid by the levy and collection of a general tax for that purpose.

Action in chancery to^enjoin defendants from carrying on the blacksmith business in a shop built and maintained near plaintiff’s dwelling. After a trial upon the merits, a decree was entered as prayed for in plaintiff’s petition.

The plaintiff commenced an action on the 8th day of May, 1880, to foreclose a school-fund mortgage, executed in August, 1874. In June, 1880, judgment was rendered against the defendant for $463.29, and for an attorney’s fee of $52. -At the December Term, 1880, the defendant moved the court for a re-taxation of the attorney’s fees, and the court thereupon reduced the attorney’s fees to $25. The plaintiff appeals.

This cause was before in this court, and is reported in 55 Iowa, 657, to which, for a more full statement of the facts, reference is made. The defendants, Ormsby Bros. & Co., as agents of the plaintiff, sold a farm, the legal title to which was in the plaintiff, and had in their possession $640 of the purchase money.

Action to recover double damages for stock killed by a train on the defendant’s road, at a place where it is alleged the defendant had a right to fence, and neglected to do so. Jury trial, verdict, and judgment for plaintiff for $110. The defendant appeals. The facts are stated in the opinion.

Action to recover for professional services rendered by plaintiffs, wbo are attorneys at law. There was a judgment upon a verdict for defendant. Plaintiffs appeal.

Action before a justice of tbe peace on an account. Tbe defendant pleaded “that be is in no manner indebted to tbe plaintiff, but, on the contrary, plaintiff is indebted to him.” Judgment for the defendant, and the plaintiff appealed to the Oircuit Court, where judgment was rendered against him, and he appeals.

<p>1. Criminal Law: accomplice: evidence. On a trial for burning a jail, a witness who testified that, on the night of the fire, the defendant invited him to go down and see him “upset the jail;” that he did go down, and saw him wrench off the lock from the door of the jail and enter it; and that the defendant afterwards confessed to him that he had burned the jail — was not shown by such testimony to be an accomplice, .and there was no occasion for the court to instruct the jury as to the necessity of his being corroborated, to justify them in finding a verdict of guilty.</p> <p>2. -: venue: incorporated town: judicial notice. When a crime is alleged to have been committed in an incorporated town, the courts will take judicial notice of what county such town is situated in, and, in such case, a failure to prove the-countyis not fatal.</p>

On the 17th day of May, 1880, the plaintiffs attempted to cross a county bridge, in Poweshiek County, with a road grader and some horses. The bridge broke down and preeipitated the grader and horses, and men in charge of them, to the bed of the stream below.

<p> Appeal from Worth District Oowrt. </p> <p>Action in chancery. Upon a demurrer to the petition, it was dismissed. Plaintiff appeals.</p>

Indictment for an assault upon a girl between six and seven years old, with intent to commit a rape. Trial by jury, verdict guilty, and judgment sentencing the defendant to be confined in the penitentiary for two years, and he appeals.

This is an action in equity to subject the homestead of the defendants, who are husband and wife, to the satisfaction of a judgment recovered by the plaintiff against the defendant, J. A. Brewer. The cause was tried to the court upon an agreed statement of facts. The death of Harrison Eobb was suggested, and Hester A. Eobb, his widow,*and beneficiary under his will, was substituted as plaintiff.

Action to recover for beer sold and delivered by the plaintiffs to the defendant. Trial to the court, j udgment for the plaintiffs, and the defendant appeals.

This is an action to recover damages for a personal injury. There was a trial by jury, and a verdict and judgment for the defendant. Plaintiff appeals.

This is a proceeding to establish a claim against the estate of Herman Kahle/ deceased, which claim consists of two promissory notes which were executed by Ralile in his-lifetime. The defendant pleaded that the notes were without consideration, and that they had been paid by Kahle. There was a trial by jury, which resulted in a verdict and judgment for the defendant. Plaintiff appeals. ' ,

The plaintiff alleges in his petition that the defendant ordered of plaintiff a fire-proof safe, at the price of $85, that plaintiff shipped to defendant the safe called for by said order, and that defendant has failed to pay the price thereof. The order, a copy of which is set out in the petition, calls for a safe with fancy Japanese painting, bouquets on the sides, mortar on outside of door, for drug store, and name on one drawer.

<p> Appeal from Black Hawk Circuit Court. </p> <p>The material facts in this case are as follows: Michael Woods and Catherine Shannon were married in 1865. At the time of the marriage, Catherine Shannon was, by a former marriage, the mother of Mary Shannon and Archibald Shannon, who were then minors. After the said marriage there were born to the parties thereto three children, who are now minors. In October, 1874-, Michael Woods disappeared, and from that time to the present has never been heard from by his family or friends, and they do not know whether he is dead or alive. When Woods left his home, he was the owner in fee of sixty-three acres of land, and Catherine Woods,, his wife, was owner in fee of sixty acres of land, adjoining the land of her husband, and which she acquired before her said marriage. Both of said tracts were used and occupied as one farm by the said parties, and from which they supported themselves and family. The dwelling house in which they lived was situated on the part of the farm owned by Catherine Woods, but the land belonging to her was barren, and much of it untillable, and for that reason that portion of the farm belonging to said Michael constituted the chief means of support of the family. Neither of said parties ever had the homestead in said premises platted or set apart as provided by law.</p> <p>After Michael Woods disappeared, the said Catherine remained upon said farm, with her children, and supported them from the proceeds thereof, until her death, which occurred in July, 1877. After the disappeai’ance of Michael Woods, one Milks commenced an action against Woods, and sued out an attachment, and caused the same to be levied upon the said land of Michael Woods,-and served said Woods with notice of the action, by leaving a copy with said Catherine, and, on such service, a judgment was recovered, and special execution was awarded for the sale of the land. Catherine Woods, being then in possession, gave written notice to the sheriff that she claimed a homestead right in the lands levied upon, and made a written demand that he should cause to be jdatted to her and set apart as a homestead that part of said land now claimed by the plaintiff. The sheriff disregarded said demand and notice, and sold the land to the plaintiff, wrho purchased the same- with full knowledge of “such facts.” This action was brought to recover the land of said minor children, and these facts having been submitted to the court by the averments of the answer and cross-bill, to which there was a demurrer by the plaintiff, the court held that the sheriff’s sale was valid,, and the said facts constituted no defense to the action. Defendants appeal.</p>

This is .an action at law to recover possession of land. The amount originally in controversy was forty acres. The case was before us, and was reversed, on a former appeal.. See 52 Iowa, 238. The cause being remanded, the plaintiff amended his petition, alleging that he is entitled to the immediate possession of the property in dispute, except one acre in a square form in the northeast corner thereof.

<p>1. County Treasurer: settlement with supervisors: how ear conclusive upon himsele and sureties. Where a county treasurer was elected for a new term, and, before the approval of his new bond, settled with the county supervisors, and the supervisors, pursuant to section 690 of the Code, indorsed upon his new bond a certificate, stating that he had fully accounted for and produced all the funds with which he was chargeable, as shown by his balance-sheet, which he had certified to be correct and which they had approved, held, in an action against the treasurer and the sureties on his new bond, for a defalcation alleged to have occurred during his new term of office, that, while the treasurer himself was estopped, his sureties were not estopped, by the representations of the treasurer in such settlement, from showing, in their own exoneration, that the treasurer had not in fact, at such settlement, produced the funds with which he was chargeable, as shown by his balance-sheet, but that he had produced certificates of deposit, checks and other promises to pay, which had been loaned to him for the purposes of such settlement, and did not represent money in his hands, but which the supervisors had unlawfully counted as money, without making due inquiry as to their value, and that the defalcation of their principal had actually occurred prior to such settlement, and prior to the date of the bond on which they were holden.</p> <p>2. Jury: drinking intoxicating liquors: new trial. Anew trial was properly refused when demanded by one defendant, on the ground that the jury had during the trial been drinking intoxicating liquors, but it appeared that only one of the jurors had been so drinking, and he at the solicitation of a co-defendant.</p> <p>3. Practice in Supreme Court: argument on re-hearing. The petition for a re-hearing is the argument therefor. If the court so indicates, the opposite party may file a reply. Rule 88, Code, § 3202. But this is the end of the argument; and a rejoinder to such reply will, on motion, be stricken from the files.</p>

The plaintiff brings this action to recover of the defendant the amount of a promissory note, executed by the defendant to the plaintiff, for the sum of $200, dated December 21, 1870, payable twelve months after date, with interest at eight per. cent, and upon which are several indorsements of credits aggregating $136.

This proceeding was commenced by tb'e administrator of John Sunderland, for the purpose of having determined who were his heirs and entitled to inherit his estate. Ella Louise Eoote Sunderland claimed that she was such heir. The Circuit Court held that she was not, and she appeals.

The petitions, in substance, state tliat the plaintiffs are owners of certain real estate in the town of Adel, which abuts on Ferry Street in said town, and that defendants have constructed a railroad along said street, since the first day of September, 1873, and are operating the same, without having obtained the consent of the plaintiffs, and without having their damages assessed as provided by law. To recover such damages is the object of this action.

Action to recover for potatoes and hay, sold and delivered by the plaintiff to the defendants. The latter pleaded a counter-claim. Trial to the court, judgment for the defendants, and plaintiff appeals.

The defendant was convicted of the crime of larceny, and sentenced to the penitentiary for eighteen months. From the judgment he appeals to this court.

The plaintiff claims of the defendants a balance alleged to be due upon a contract for the purchase of real estate, and asks a foreclosure of the contract, and a judgment for attorney’s fees stipulated for in the contract.

This is an action in equity to enforce the specific performance of an alleged contract of the defendant for the sale to plaintiff of forty acres of land. The court granted the'plaintiff the relief prayed. The defendant appeals.

The defendant is the owner of a thrashing machine, the tumbling rods of which were not boxed as provided by statute, and,, because of such fact, the plaintiff was injured. To recover damages therefor is the object of this action. Trial by jury, judgment for the plaintiff and defendant appeals.

<p> Appeal from Chickasaw Circuit Court. </p>

<p> Appeal from Floyd District Court. </p> <p>Action to subject certain real estate to the payment of a judgment obtained by plaintiff against Adam Witcik. Judgment for defendants and plaintiff appeals.</p>

Action to set aside certain conveyances of real estate. In March, 1878, the plaintiff obtained a judgment against the defendant, T. H. Mink, for $5,000. The legal title to the real estate in question is in Eva K. Mink, the wife of T. H. Mink. This action is brought to subject it to the payment of the judgment, on the ground that T. H. Mink is the equitable owner of it, and that the defendant, Eva, has no beneficial interest in it.

The defendant was indicted for the crime of obtaining property under false pretenses. Verdict and judgment having been rendered against him, he appeals to this court.

The plaintiff, Rebecca J. Hubbard, brings this action as guardian ofher insane husband, Harrison Hubbard, to procure the restoration of a bond for a deed, surrendered by Hubbard to the defendant, John H. Hoag, after, as is alleged, he became insane. The court dismissed the plaintiff’s petition and she appeals.