Volume 62 — Iowa Reports

This is a proceeding for the condemnation of a right of way for the defendant’s railroad through the farm of the plaintiff. The sheriff’s jury appraised the plaintiff’s damages at §500. The plaintiff appealed, and a trial by jury was had in the circuit court, and the damages were assessed at $2,100. The defendant appeals.

This is an action to recover for a personal injury which, it is alleged, was received by plaintiff by reason of a fall upon a defective sidewalk. There was a trial by jury, and a ver-diet and judgment for the plaintiff. The defendant appeals.

The petition states that .tbe defendant is a corporation; that tbe plaintiff was a member thereof and entitled to enjoy all the privileges and franchises pertaining to such membership ; that the plaintiff was notified by the clerk or secretary of the defendant that ata meeting of the corporation she “was expelled therefrom, and cut off and cast out from her privileges and franchises as a member of the organization.” The notice referred to is as follows: “Mason City, Iowa,…

<p> Appeal from Clay District Court. </p> <p>This action is an equitable one, and was commenced on the fifteenth day of October, 1881. The petition alleges, in substance, that for the year 1872 an illegal school tax was levied upon the district township of Spencer, and collected and paid over to the treasurer of said district township; that the territory now included in the defendants then formed a part of the territory of the plaintiff', and that, in the year 1874, the defendants were formed out of said territory;- that the boards of directors of the plaintiff and the defendants made an equitable division of the assets and liabilities, but did not take into account said illegal tax, because.it was not then known whether said tax would be refunded; that in April, 1876, the board of supervisors of Olay .county ordered tliat said illegal tax be refunded, and the treasurer of said county has refunded $1,736.67 thereof, all out of money in his hands belonging to plaintiff, which refunding was made April fifth, and May sixteenth, 1876; that after July first, 1881, and before October fifteenth, 1881, the plaintiff presented its claim to the board of directors of each of the defendants, and asked that it be audited and allowed, which was refused; that this action was originally commenced at the April, 1879, term, and on the 23d of April, 1881, plaintiff failed in said action, upon defendants’ demurrer to the petition being sustained in the supreme court, which failure was not caused by negligence in the prosecution of said action. Plaintiff prays an accounting and judgment against each of the defendants. The defendants demurred to the petition upon the ground, among others, that the petition shows upon its face that the cause of action is barred by the statute of limitations. The court sustained the demurrer. The plaintiff appeals. For the former opinion in this case, see 56 Iowa, 85.</p>

<p>1. Criminal Law: information under town ordinance: duplicity: surplusage. Where an information under a town ordinance charges an offense punishable under the ordinance, and also an offense punishable only under the laws of the state, the information is not bad for duplicity, but that portion charging an offense of which the town has no jurisdiction may be disregarded as mere surplusage, and it will not vitiate a judgment of conviction for the other offense.</p> <p>2. -: -:-. Where a town ordinance authorized “any number of violations of the ordinance to be included in one complaint,” an information under the ordinance, charging more than one offense as defined therein, was not bad for duplicity.</p> <p>3. Cities and Towns: ordinance : paiit illegal — remainder valid. Where an ordinance, besides prohibiting the sale of malt and vinous liquors, which the town had authority to do, prohibited also the sale of intoxicating liquors, which it had no power to do, held that the ordinance could be enforced as to the sale of malt and vinous liquors.</p> <p>4. -: -: EVIDENCE oe publication. In the absence of a statute to the contrary, oral evidence is competent to prove the publication of an ordinance.</p> <p>5. -: PASSAGE OP ORDINANCE: SUSPENSION OP RULES: PRESUMPTION. Where the record of a town council recites that the rules were suspended upon the passage of an ordinance, the record will, in a collateral proceeding, be conclusively presumed to be correct, though it fails to show the number of votes cast for and against the proposition to suspend.</p>

This is an action to recover damages for tbe alleged breach, of covenants in a deed to certain land. Tbe cause was refered to a referee for trial, and tbe referee reported in favor of tbe plaintiff. The report was approved by the court, and judgment was rendered thereon, and defendant appeals.

Action for an injunction to restrain. the defendant, Kennedy, as road supervisor, from removing a fence from an alleged public highway. A temporary injunction was granted, and the same was afterward dissolved. From the order dissolving the injunction the plaintiff appeals.

This is ail action to recover part of tbe purchase price for a tract of land sold by the plaintiff to the defendant. There was a demurrer to the petition, which was sustained. Plaintiff appeals.

The defendant was convicted of entering, without breaking, a dwelling house in tbe night time, with intent to commit larceny, and was sentenced to the penitentiary for four years. From the judgment he appeals.

The plaintiff, as the indorsee before maturity of a negotiable promissory note for $645, executed by Solon Bryan to the order of P. E. Nelson, brings this action to recover the amount of said note, and to foreclose a mortgage to secure the same, executed by Mary E. Bryan and Solon Bryan upon their homestead.

AotioN in equity, tlie object of which, was to enjoin the execution of a tax deed for certain real estate to the defendant. The injunction was made perpetual, and defendants appeal.

Action to recover for work done in building a railroad, and to enforce a mechanic’s lien therefor. A trial was had without a jury, and judgment was rendered for defendants. Plaintiffs appeal. The facts of the case are fully stated in the opinion.

ActioN in equity to set aside a conveyance of real estate, on the ground that the same was made to hinder and delay creditors. Judgment for the defendants, and plaintiff appeals.

The defendant was convicted of the crime of perjury. The facts involved in the question of law ruled by this court appear in the opinion.

The petition states that defendant is the owner of a vicious dog, “which was in the habit of biting children and other persons without cause, and defendant, well knowing his vicious and ferocious habit, and that he had repeatedly bitten children and other persons, wrongfully and negligently permitted him to run at large, and, while so, he bit the plaintiffs legs and ankles,” to her great damage. Trial by jury, verdict and judgment for plaintiff for $365.

AotioN to replevy a cow and calf. Tbe property, in March, 1881, belonged to one Perkins. The plaintiffs claim that they acquired title to the property by purchase from Perkins’ wife. After the alleged purchase, the defendant, as a creditor of Perkins, attached the same as Perkins’ property. The plaintiffs brought this action to recover possession. There was a trial to the court, and judgment was rendered for the plaintiffs. The defendant appeals.

The questions presented in this case pertain to tbe sufficiency of the plaintiff’s petition. The court below sustained a motion to strike out a part, and afterward sustained a demurrer to the remainder. The plaintiff elected to stand upon its petition, and judgment was rendered for the defendant. The plaintiff appeals.

ActioN to recover possession of personal property, and damages for its unlawful detention. No bond was executed, and the property was not delivered to the plaintiff.

The plaintiff, as sole heir of John Lambert, deceased, brings tbis action to recover tbe balance of a note for $850, due June 16, 1876, executed to John Lambert by Cbristain Shitler and Joseph Shitler. Tbe defendant, Joseph Sliitler, for answer alleges that be was merely a surety upon tbe note, and that in the month of May, 1877, after tbe note became due, John Lambert, for a valuable consideration, extended tbe time on said note to Christain Shitler, tbe principal thereon.

AotioN at law to recover possession of real estate. The defendant pleaded that he was in possession of the premises, and bad been for more than ten years, and that Jobn I. Blair owned tbe real estate in controversy, and sold tbe same to Fuller, to whom a contract was given, whereby Blair agreed to convey to Fuller upon tbe payment of tbe purchase-money; and that Fuller bad assigned tbe contract to defendant.

This is an action to recover of defendant commissions, which the plaintiff alleges he earned as an employe of the defendant in the sale of McCormick machinery in the year 1878. The canse was tried to a jury, and judgment was rendered in favor of plaintiff for $147.50. The defendant appeals. The material facts are stated in the opinion.

AotioN by a judgment lien-holder to redeem certain real estate from a prior mortgage debt.

Appeal from Qarroll District Oourt. ActioN for a divorce. Up on. a trial on tbe merits, a decree was rendered divorcing tbe parties. Defendant appeals.

<p> Appeal from Polk Circuit Court. </p> <p>This is an action upon a policy of insurance issued on tbe twenty-eiglith day of November, 1877, for the term of five years, to recover for losses by ñre occasioned to the insured property on the twenty-third day of September, 1881.</p> <p>The. answer alleges that the policy contains a provision that, “if said property shall he sold, conveyed or encumbered, in whole or in part, whether by legal process, judicial decree, mortgage, voluntary transfer or otherwise, * * * without the written consent of this company obtained, the policy shall in either event immediately thereafter cease and be null and voidthat the plaintiff, on the thirtieth day of March, 1881, executed and delivered a written instrument for the sale of said premises as follows: “Daniel Kempton agrees to sell his farm of seventy and fifty-five hundredths acres for $35 per acre * * * to George II. Warner, secretary, and for the American Emigrant company, of Hartford, Connecticut, and give possession of the same on or before November 1, 1881, but not before October 1, 1881, and agrees to deposit a good and sufficient wai’ranty deed for said farm with Mr. C. E. Fuller, in the office of the Iowa Loan and Trust company, executed by said Kempton and Mary Jane Kempton, his wife, within a few days after signing this contract, to be delivered to said Warner as provided below. Geo. II. Warner, secretary of American Emigrant. Company, agrees to pay the said Fuller the above stipulated price of $35 per acre, and lift the said deed in 0. E. Fuller’s hands, upon possession of farm being given by said Kempton, but not before October 1, 1881. * * * Said farm and buildings are to be delivered by Kempton in as good condition as • they are now in, the destruction by the elements excepted.”</p> <p>The petition further alleges that, on the twelfth day of October, 1881, the plaintiff, pursuant to said contract, executed to the American Emigrant company a warranty deed for said premises, and that, by reason of the facts stated, the policy was void at the time of the loss, and the plaintiff had no'insurable interest in the property. A demurrer was filed to this answer, which was sustained, and judgment was rendered for the plaintiff. The defendant appeals.</p>

ActioN to recover upon an account against defendant for certain work and labor done for defendant by one Farnsworth, the assignor of plaintiff. There was a trial by the court, and judgment for the plaintiff. Defendant appeals.

<p>1. Practice in Supreme Court: rehearing on petition only. After the court has examined the record in a cause, and filed an opinion dismissing' the appeal on the ground of defects in the record, it is not competent for the appellant, without obtaining a rehearing, to simply ignore the former decision, and bring the ease again before the court upon a corrected record.</p>

ActioN in equity for specific performance and for general relief.

This is au action to recover damages for the value of a horse which, it is alleged, was killed by falling into an unfinished well, which the defendant left open and unprotected upon her uninclosed land. There was a demurrer to the petition, which was sustained, and plaintiff appeals,

It appears from the record in this case that the defendants were members, and constituted the executive committee, of the “Ottumwa Temperance Beform Club.” This organization was not an incorporated society or company, but was a mere voluntary association of persons. The executive committee of the club entered into a written contract with plaintiff, in the name of the club, for the lease of a hall for the use of the association.

Action upon a bond for tlie payment of one thousand dollars, purporting to be issued by the defendant in satisfaction of a judgment against it. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals,

ActioN in replevin. The defendant is the sheriff of Polk county. As such, he received a writ of attachment in an action brought by H. B. Claflin & Co. against W. K. Bird, and levied the same upon certain personal property. The plaintiff claims to be the owner of the property, and entitled to the immediate possession. Under such claim, he brought this action to recover possession, and for damages.

Tiie defendant was indicted for the crime of the robbery of one Sam Lee. Yerdict and judgment were rendered against him, and he appeals to this court.

The defendants, Alexander Graham, Sophia Graham, John Dames, and Hattie Dillon were indicted for the crime of larceny. Yerdict and judgment were rendered against them. Alexander Graham and John Dam6s were sentenced to the penitentiary for ten years, Sophia Graham for six years, and Hattie Dillon for two years. They all appeal.

This is an action to recover damages for an alleged failure of tbe defendant to deliver 3,000 busbels of corn in compliance with a written contract. There was a trial by jury, and a verdict and judgment for the defendant. Plaintiff appeals.

ActioN to recover for bay wrongfully converted by tbe defendant to his own use, and to recover damages by reason of the defendant’s failure to deliver corn as he contracted to do. Trial by jury, verdict and judgment for the defendant, and plaintiff appeals.

This is an action in equity for tbe redemption of lands sold under tbe foreclosure of a mortgage. Tbe facts are as follows: On tbe lltli day of September, 1874, Daniel Burns executed to tbe defendant, Walter Shay, a mortgage on tbe lands in controversy. In J une, 1878, said Burns executed to plaintiffs a mortgage on tbe same lands.

<p> Appeal from Lúeas District Oourt. </p> <p>Action in equity. Judgment for plaintiff, and defendants appeal. «</p>

Appeals from Adams District Court. The cases are submitted together as involving the same questions of law. Sigler and' Thomas are creditors of one Parsons. Each, having a judgment against him obtained in the district court of Adams county, caused an execution to issue, and caused Hoffman to be garnished.

ActioN in chancery to construe a will, and to set aside certain bequests therein made. A demurrer to tbe petition was sustained, and, plaintiffs refusing to amend, tbe petition was dismissed. • Plaintiffs appeal. The facts of tbe case are fully stated in tbe opinion.

This is an action at law by which the plaintiffs seek to recover damages of the defendant for fraudulently representing to the plaintiffs the financial condition of one ITntley, whereby plaintiff's were induced to extend credit to Hutley to their injury, There was a trial by jury, which resulted in a verdict for the defendant. A motion for a new trial was overruled, and judgment was rendered upon the verdict. Plaintiffs appeal.

Appeal from Jasper District Court. The defendant was indicted and tried for murder in the first degree, and convicted of manslaughter. lie appeals.

ON the sixteenth day of September, 1875, Loretta Long, since intermarried with one Shropshire, widow of-Jesse Long, deceased, was duly appointed administratrix of the estate of her deceased husband, and executed a bond as administra-trix, with the plaintiff and defendant as sureties, in the sum of $175,000.

AotioN to foreclose a mortgage given to secure certain promissory notes. The defendants .pleaded, in substance, that the transaction out of which the notes and mortgage grew was never consummated, and that the notes and mortgage never took effect. There was a decree for defendants. The plaintiff appeals.

Action to recover' upon tbe warranty of a deed for land. The cause was tried to a jury, and a verdict rendered for plaintiff under direction of the court, and judgment accordingly. Defendant appeals.. The facts of the case appear in the opinion.

The proponents presented for probate the last will and testament of Robert Stephenson, Sen., deceased. The contestants admitted that Robert Stephenson signed the paper purporting to be his will, and that the same was properly witnessed, but they resisted the probate of the will on the ground that it was procured by fraud and undue influence, and that the testator was of unsound mind, and incapable of making a valid will. The issue was tried to a jury.

Action to recover for personal injuries sustained by plaintiff’s intestate while in the service of defendant as a brakeman, which resulted in his death. The cause was tried to a jury and, upon the close of plaintiff’s evidence, the circuit court directed the jury to return a verdict for defendant, whereon a judgment was entered. Plaintiff appeals.

This is a proceeding in equity for a decree declaring the defendant’s stable and privy a nuisance, and for an injunction perpetually restraining and enjoining the defendant from keeping and maintaining the same. The court dismissed the plaintiff’s petition. The plaintiff appeals.

ActioN to recover damages for an alleged personal injury. The cause was tried by jury, and a verdict of $175 was returned for the plaintiff, upon which j udgment was reudered. Defendant appeals.

The plaintiff, claiming to be the owner of certain real estate under a tax deed, commenced this action to restrain the defendants from selling the same under execution against a former owner. Judgment for defendants, and plaintiff appeals.

This is an action in equity' to quiet title to certain forty acres of land. Tbe defendants filed a general demurrer to tbe petition, wliicb tbe court sustained. Tbe plaintiff appeals.

This is an action to recover of the defendants damages for occupying tlie plaintiffs’ premises by the defendant’s line of railway. The court sustained a demurrer to the plaintiffs’ reply, and rendered judgment for the defendants. The plaintiffs appeal. The facts are stated in the opinion.

The defendant, in locating and constructing its railroad, desired the right of way across a tract of land of forty acres, the property of plaintiff. The parties not being able to agree upon the compensation to be paid to the plaintiflj commissioners were appointed by the sheriff of Polk county, where the land is situated. The commissioners assessed the damages at the sum of $500.

AotioN in equity to set aside a conveyance of real estate by the defendant, Wacbenlieim, to one Mattes, on tlie ground that it was made to hinder and delay creditors. The relief ashed by the plaintiffs was granted, and the defendants appeal.

ActioN commenced before a justice of the peace to recover the possession of specific personal property consisting of wine and beer, and certain begs containing the same. The defendant, among other things, pleaded that he was marshal of the incorporated town of Perry, and that he had seized the property in controversy under legal process issued under and in pursuance of an ordinance of said town and the statutes of the state.

UpoN the issues joined, the plaintiff recovered a judgment; but the defendants filed a motion to tax certain costs to tbe plaintiff, which was overruled, and defendants appeal.

The plaintiff commenced an action against tbe defendants, and caused to be attached a certain stock of goods. Ren Oo-lieu intervened in the action, and claimed that be was entitled to the possession of tbe attacked property, under a general assignment of Frank and Son for tlie benefit of creditors. The cause was tried to the court, and judgment was rendered in favor of tbe intervenor. The plaintiff ajipeals.

AotioN in equity to set aside a deed of one hundred and sixty acres of land. The plaintiff is the widow of one William Palmer, deceased. In April, 1881, she and her husband executed the deed in question to the defendant, Daniel Palmer, who was the son of William Palmer by a wife from whom he had been divorced. In February, 1882, William Palmer died.

The plaintiff claims of the estate of ITenry Malone, deceased, $1,000 for boarding deceased from December, 1870, to December, 1880, $1,200 for work on his farm, and $190 for money advanced to him. The cause was referred, and, upon the referee’s report, judgment was rendered in favor of the administrator for costs. The plaintiff appeals.

ActioN at law. There was a judgment upon a verdict for plaintiff. Defendant appeals. The facts of the case appear in the opinion.

Aotiok upon a statutory indemnifying bond. The defendants, Wright & Spencer, obtained a' judgment against one J. B. Sweet, Jr., and caused an execution to be levied upon certain goods, giving the sheriff an indemnifiying bond under the statute. The plaintiff, claiming to be the owner of the goods, brings this action against Wright & Spencer as principals upon the bond, and against the defendants, George Grlielc and T. J. Eletcher, as sureties.

Oiroidt Oou/rt. ActioN under section 476 of the Code, to determine the compensation that should be awarded the defendants for right of way for a street across their depot grounds. The defendant, tlie I. E. & S. O. R. R. Co., filed an answer claiming six hundred dollars. The defendant, the Ill. Oen. R. R. Co., filed no answer, and was defaulted. Upon trial to a jury, verdict and judgment were rendered in favor of the defendants for $175.

This action was brought by the plaintiff, as assignee of the Dubuque & Sioux City Railroad Company, to recover for taxes paid by that company on certain land in Webster county, belonging to defendant, Stryker. The Dubuque & Sioux City Bailroad Co. claimed to be the owner of the land at the time the taxes were levied, and which land it conveyed by a deed of warranty.

This is an action against tbe defendant on certain guardian’s ' bonds, which it is alleged be signed as surety for Eleanpr S. Wood, plaintiff’s guardian, and also to recover upon a certain promissory note executed by tbe defendant to tbe plaintiff. There was a trial by tbe court, and a judgment was rendered for tbe plaintiff for $300. Defendant appeals.

Tins is an action of replevin for a large quantity of corn in bins, in Corning and Preston, and in an elevator owned by the defendant, Lilly. The trial was to a jury, and resulted in a verdict and judgment for tlie plaintiffs. The defendants appeal.

AotioN upon an official bond given by the defendant, Eegan, as notary public. The other defendants are sureties upon the bond.

AotioN in chancery to foreclose a mortgage. There was a decree of foreclosure as to part of the land described in the mortgage, and a judgment against the mortgagors for the amount of'the debt. Plaintiff appeals. The facts of the case are stated in the opinion.

AotioN at law upon an account for certain buggies and other goods ordered by defendants of plaintiff. There was a judgment upon a verdict for plaintiff for a part of the claim, from which it appeals. The facts of the case are stated in the opinion.

AotioN for an injunction to restrain the collection of a judgment. There was a decree for the plaintiffs. The defendant appeals.

Appeal from Dallas Circuit Court. AotioN to foreclose a chattel mortgage. The relief asked by the plaintiffs was granted, and defendants appeal.

This is an action against the defendant as the indorser of a promissory note for $1,000, executed to the order of defendant by one Jephtha Turner. The defendant for answer alleges that he was insane at the time he assigned the note to the plaintiff, and that he exchanged the note for one-half the plaintiff’s stock of hardware and business in Indianola, which the plaintiff represented to be worth $1000, but which, in fact, was not worth one-half that amount.

Tiib plaintiff brings tbis action for tbe recovery of damages for an alleged breach of warranty in a conveyence of certain real estate, situated in tbe state of Missouri.

ActioN in equity to establish a trust in certain land embraced within, the town plat of the town of Stuart, Guthrie county. The defendant demurred to the plaintiff’s- petition, and the demurrer was overruled. From the order overruling the demurrer the defendant appeals.

The petition states, in substance, that the defendant, Granger, recovered a judgment against the plaintiff on a policy of insurance, and that no notice of the pendency of the action was served on plaintiff, who has a meritorious defense to said action. The relief asked is that the judgment be set aside, and that plaintiff may have a new trial of said action, as the statute provides. The court found for the defendant and dismissed the petition. The plaintiff appeals.

Aotion to foreclose a mortgage. The plaintiff is content with the relief granted, but the defendant, Gleason, is not, and appeals. His co-defendant, W. T. Laughlin, is the real party in interest adverse to Gleason.

, wbo were sub-contractors under John Eitzgerald, wbo was the principal contractor with the defendant in building its line of railway, to render personal services to them in the prosecution of the work of building said company’s line, as their book-keeper, cashier and general superintendent of the working force employed by said Jesse Stubbs & Co. on said railroad, and that, in pursuance of said contract, be rendered such personal services for the period of seven months,…

ActioN to recover damages of tbe defendants for alleged unlawful sales of intoxicating liquors to plaintiff’s husband, by reason of which plaintiff was injured in her person, property and means of support. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendants appeal.

The plaintiff alleges, in bis petition, in substance, that be was in tbe employment of defendant, performing tbe duties of a helper in its machine shops, and that he was instructed by the defendant’s master mechanic to remove the old brasses belonging to the boxing of certain car wheels and axles, which were covered over with poisoned grease, and that plaintiff was dangerously poisoned by the handling of such brasses, necessitating the amputation of the middle finger of his…

A motioN was made by defendants in tbe court below, sitting as a court of probate,-in tbe matter of tbe estate of Sopbia H. Warren, deceased, that an entry be made of record of the consent of the husband of tbe testator to take under tbe will. Tbe motion was sustained, and plaintiffs appeal.

ActioN to recover damages caused by tbe failure of tbe defendant to convey certain real estate to the plaintiff, which tbe latter claims the defendant agreed to convey to him. Tbe cause was referred, and tbe referee found for tbe defendant, and bis report was confirmed bj tlie court, and plaintiff appeals.

PuaiNTIff and another person made a wager. The defendant was stakeholder, and the plaintiff seeks to recover of him the amount the plaintiff deposited in his hands. Judgment was rendered for the defendant, and the plaintiff appeals.

AotioN for damages alleged to have been sustained by the plaintiff, by reason of the killing of a horse by the defendant in the operation of its road. The petition contains two counts. In the first the plaintiff claims double damages. In the second he claims single damages. A jury was called, and the plaintiff’s evidence was introduced, when the defendant made a motion to dismiss the plaintiff’s action, which motion the court sustained. The plaintiff appeals.

This case is a continuation of that of Stange v. Hill & West Dubuque Street Railway Company, 54 Iowa, 669.

The plaintiff alleges in his petition that he assigned to Webster, Linderman & Co. certain- judgments, as collateral security for a note, and that Barnhart and Cadwell, acting as attorneys for' Webster, Linderman & Co., collected said judgments, and appropriated to their own use all of the moneys collected above what was sufficient to satisfy said note. The plaintiff prays judgment for $600.

This is an action in equity to enforce tbe specific performance of an alleged contract for the sale of block 70, in the town of Emmetsburg. The court found for the defendants. The plaintiff appeals. The material facts are stated in the opinion.

AotioN to remove a cloud from the plaintiff’s title, and to quiet the same. Tbe plaintiff avers that be is the owner of the real estate in question, but that the defendant makes some claim to it.

This is an action of replevin, by which it was sought to recover an undivided half of twenty acres of growing corn. There was a demurrer to the petition, which was overruled, and defendant appeals.

<p> Appeal from Adams District Court. </p> <p>This is an action of replevin for two borses and one set of double harness, levied upon by the defendant, as sheriff, under an execution against the plaintiff, and which the plaintiff now claims were exempt from execution, as the team and harness with which he habitually earned his living as a farmer. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.</p>

The plaintiff claims of the defendant $400 on account of an alleged breach of the covenants of seizin and warranty in a deed conveying eighty acres of land. The cause was tried to the court, and judgment was rendered for the defendant. The ¡plaintiff appeals. The facts are stated in the opinion.

The plaintiff, and other persons, are tbe owners of certain lots situated on and near the east bank of the Des Moines river, in the city of Des Moines. These lots have been subject to overflow in times of flood from the water of the river, and from the Coon river, which empties into the Des Moines river from the west.

Tile plaintiffs recovered a judgment against tbe defendant before a justice of tbe peace. Tbe defendant filed a bond for an appeal, but not until after tbe lapse of more than twenty days from-thfe rendition of tbe judgment. Tbe appeal, however, was allowed by tbe justice, and a transcript was filed in tbe circuit court. Tbe plaintiffs moved in tbe circuit court for an order dismissing tbe appeal, and for judgment on tbe appeal bond against the defendant and bis sureties.

<p>1. Tax Sale and Deed: defective Notice: certificate not merged in void deed. Where the holder of a certificate of purchase at tax sale surrendered his certificate and obtained a deed upon a defective and insufficient notice of the expiration of the time of redemption, the deed was void, and the surrender and cancellation of the certificate were also void, and the holder thereof had the right thereafter to proceed thereunder to lay the foundation for a deed by giving proper notice.</p> <p>2. -: Redemption erom: opeer too late. Where the owner of land sold for taxes does not offer to redeem until after the holder of the certificate is entitled to a deed, which he is prevented from obtaining only by an injunction wrongfully sued out by the owner, the offer comes too late, and the title passes to the holder of the certificate.</p>

ActioN of replevin for certain borses, and corn in the crib. There was a judgment upon a verdict for plaintiff. Defendant appeals. The facts of the case fully appear in the opinion.

AotioN upon an indemnifying bond executed by the defendants, pursuant to the provisions of Code, § 3056. There was a j'udgment upon a verdict for plaintiff. Defendants appeal.

In August, 1877, Mary Byers executed ber last will and testament, devising all ber property, both real and personal, after tbe payment of debts and funeral expenses, to tbe Presbyterian eburcb at Libertyville, Jefferson county, Iowa, and appointing tbe defendant, W. R. McCartney, executor. At tbe time of ber death sbe owned certain real estate in question. Tbe will was duly admitted to probate.

This is a proceeding under chapter 56, Title 25, of the Code, to charge defendant with the support of a bastard child. The case was tried to a jury and, upon the evidence introduced by plaintiff, the court directed the jury to find for defendant, which was done. Plaintiff appeals.

The plaintiff appeals from an order of the court striking tlie cause from the docket. The facts are stated in the opinion.

Action on promissory notes. An attachment was sued out. Tbe defenses were that there was no consideration for the notes and that they were usurious. A counter-claim was pleaded, claiming damages on the ground that the attachment had been wrongfully and maliciously sued out. Trial before a jury, verdict for the defendant, and plaintiff appeals.

Action upon a promissory note for $500, signed by the defendants, Morris McHenry, Hugh McWilliams, E: Hef-felfinger and H. C. Laub. The note was made payable September 1, 1873. The action was commenced December 27, 1882. The defendants pleaded that the note was barred by the statute of limitations, except as to $100, setting out a certain agreement by which they averred that the time of payment was changed, and made earlier than by the terms of the note, except as to $100.

The plaintiff commenced an action against J. S. Bailey upon a promissory note, and caused a writ of attachment to issue thereon, on the ground that said Bailey was a non-resident of the state, and on the 7th day of February, 1883, the Union Pacific Eailway Company was attached as garnishee, and cited to appear and make answer on the 12th day of February, 1883.

ACTION for damages alleged to have been sustained by reason of the breach of a contract. The plaintiff leased to the defendant certain real estate, situated on Walnut street, in the city of Des Moines.

Action on a policy of insurance against loss by fire. Trial by jury; verdict and judgment for plaintiff; and defendant appeals.

ActioN to recover for the value of certain lumber furnished by plaintiff upon the request of the board of health of the city of LeMars and the overseer of the poor, which was used in building a pest house necessai-y for the proper care of certain persons found in the city afflicted with the small pox. A demurrer to the petition was sustained, and the plaintiff standing upon the petition', judgment was rendered against him. He now appeals.

This is an action to recover damages occasioned, as it is alleged, by an unlawful, wrongful and malicious removal of tbe plaintiff and bis family from, certain real estate. Tbe defendants moved to strike out certain paragraphs from tbe petition as irrelevant and redundant, indefinite and uncertain, and as being mere conclusions of law. Tbe motion was sustained, and tbe plaintiff appeals.

AotioN under chapter 68, Acts of tbe Fifteenth General Assembly, to recover the penalty therein provided for illegal charges paid by’plaintiff to defendant on account , of goods transported upon its railroad. The cause was tried to the court without a jury, and, upon facts found, judgment was rendered for plaintiff. Defendant appeals. The facts of the case are fully stated in the opinion.

This is an action upon a promissory note. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal. The facts of the case appear in the opinion.

The main object of this action is to determine the title and ownership of certain land described in the pleadings. There was a trial before the- court, and judgment for the defendants. The plaintiff appeals.

AotioN upon a policy of insurance. There was a judgment upon a verdict for plaintiff. Defendant appeals. The facts of the case are stated in the opinion.

The plaintiff is the owner of two quarter sections of land. He planted twenty-four acres of forest trees on one quarter section, and twenty-three acres on the other. The trees were planted and cultivated for timber, and were not more than twelve feet apart, and on January 1,1881, they were in good condition, standing and growing on the land. Part of the trees were planted in 1879, and all of them were planted within nine years previous to January, 1881.

The plaintiff claims of tbe defendant $2,363.90, the alleged value of certain household goods delivered to the defendant in Chicago for transportation to Atchison, Kansas, which defendant has failed to deliver to plain tiff, the consignee. There was a verdict and judgment for the plaintiff. The defendant appeals. The material facts are stated in the opinion. The case was before ns upon a former appeal. See 57 Iowa, page 42.

Ajpjpeal from, Union District* Oov/rt. AN information was filed before a justice of the peace, charging defendant with permitting a minor to remain in a billiard saloon kept by cfefendant, in violation of the statute. Upon an appeal to the district court, defendant wa's convicted. He now appeals to this court.

The defendant was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for thre'e years. He now appeals to this court. The facts of the case are stated in the opinion.

AotioN upon a commissioners’ award of riglit of way damages. There was a verdict for the plaintiff, and judgment was rendered thereon. The defendant appeals.

The plaintiff claims that in May, 1877, he entered into a written contract with defendant, by which he leased to defendant part of a lot in Council Bluffs, for the period of five years, and that defendant by said contract agreed to pay as rent twelve dollars per 'month, monthly in advance, and that there is due to plaintiff the sum of two hundred and forty dollars on said lease.

INDICTMENT for robbery from tbe person of one Anderson. Trial by jury, verdict “guilty,” judgment, and defendant appeals.

The plaintiff commenced tbis action before a justice of the peace upon an account, claiming the sum of $78. The defendant denied any indebtedness, and alleged that the subject matter of the suit was submitted to arbitrators, who made an award that defendant should j>ay plaintiff $45. The defendant tendered this sum, and deposited it in court. The cause was tided to a jury, and verdict was returned and judgment rendered for plaintiff for $65.

This action was brought to compel the defendant to put. in an ojien crossing and a cattle guard at a point designated by him in a notice served by him upon the defendant. The court dismissed the plaintiff’s jietition, and rendered judgment for the defendant for costs. The plaintiff appeals.

The plaintiff brings this action in equity to quiet bis title to certain forty acres of land. The court entered a. decree, for plaintiff as prayed in the petition. The defendant appeals. The material facts are stated in the opinion.

Shelby District Court. AotioN in equity to establish an equitable right to a certain fund. There was a decree for the defendants. The plaintiffs and intervenor appeal.

<p>1. Witness: subpcenaed prom without the state: mileage: liability op county in criminal case. Where a witness is subpcenaed from beyond the jurisdiction of the court, while in a civil case his mileage in reaching the court’s jurisdiction could not be taxed to the party who did not subpoena him, he might recover it from the party who did subpoena him, as for service rendered and expense incurred at his request. And in a criminal case, where he is subpcenaed from beyond the state lines to testify on behalf of the state in a case where the defendant is found not guilty, if he obeys the subpoena, he may recover of the county, in addition to his per diem and mileage within the state, mileage at the same rate for the distance from his place of residence to the state line.</p>

<p>Appeal from, Iowa District Court.</p> <p>The plaintiff commenced an action to recover of one Peter Hiney damages for the alleged unlawful sale of intoxicating liquors to Henry Loan, the plaintiff’s husband. In an amendment to the petition, the plaintiff alleged that Peter Hiney used and occupied certain premises described, owned by the defendant, Etzel, and others, for the purpose of selling intoxicating liquors therein, with the consent and knowledge of the owners, and sold on said premises intoxicating liquors to said Henry Loan. The plaintiff prays that the judgment recovered against Peter Hiney may be declared a lien upon said premises. On the 7th day of April, 1877, judgment was rendered against Peter Hiney for $600 and costs, and the cause was continued as to Anna Etzel. Subsequently, by agreement of parties, the cause as to Anna Etzel was referred to Hon. L. B, Patterson, to report the evidence and conclusions of law and fact. Upon the report of the referee, judgment was rendered against the plaintff for costs. The plaintiff appeals.</p>

<p> Appeal from Lmn, District Oowrt. </p> <p>This is an action upon' a fire insurance policy. There was a trial by jury, which, resulted in a verdict and judgment for the plaintiff. Defendant appeals.</p>

<p>1. Practice in Supreme Court: verdict: evidence to support: defective abstract. This court cannot consider whether or not a verdict is supported by the evidence where the evidence is not all before the court; and the printing in the abstract of the certificate of the judge, showing that all the evidence is preserved of record, is not of itself sufficient to show that the abstract sets out all the evidence.</p> <p>2. Evidence: admissibility of: false- representations made to third parties. In an action based upon alleged false representations made by defendants to plaintiff, whereby plaintiff was induced to enter into a contract of agency to his damage, evidence that defendants had made similar representations to others, with whom they were seeking to make similar contracts of agency, was admissible to corroborate the testimony of plaintiff as to the representations made to him.</p> <p>3. -: false representations: materiality of. Where defendants, in order to induce plaintiff to become their agent for the sale of fence posts, falsely represented that the posts were manufactured at more than one place, such representation tended to create the belief that the posts were in demand, and evidence of such representation was material in an action based upon false representations.</p> <p>4.-:-:-: contradiction of written receipt. Where, in pursuance of a contract, certain notes were given by plaintiff to defendants, and their receipt taken therefor, in an action by plaintiff against defendants, based upon alleged false representations whereby plaintiff was induced to enter into the contract, held that plaintiff might prove that the defendants falsely represented that the notes were to be held as collateral security — such evidence being offered to establish the charge of false representations, and not to contradict the receipt.</p> <p>5. -:-: relevancy of. Where defendants, in order to induce plaintiff to enter into a contract of agency for the sale of certain articles, agreed to furnish the articles to him at a given price, such agreement was-a representation that they could be furnished at that price, and defendants’ subsequent refusal to furnish them at that price tended to show that the' representation was false; and evidence of such refusal was, therefore, admissible in an action against defendants based upon false representations leading to the contract.</p>

<p> Appeal from Mills Circuit Court. </p> <p>JudgMent for plaintiff, and defendants appeal.</p>

Action for services in assisting the defendant in mating sales of lands. The plaintiff’ avers, in substance, that in 1880 the defendant was the owner of certain so-called indem-nitj swamp lands; that it employed him through its agent, one Baxter, to find a purchaser for the lands; that he did find such purchaser, and negotiated a sale, which was adopted- and completed by the defendant; and that his services were reasonably worth $356.71.

This is a case, prosecuted without action, upon an agreed statement of facts, wherein plaintiff sought an injunction restraining defendants from opening an extension of a street. The district court dismissed the proceeding, and plaintiff appeals.

This is an action to recover of defendants the sum of $200, which, it is alleged, they received from the plaintiff as part of the purchase money of certain real estate, which they contracted as agents of one Walker to sell and convey to the plaintiff, and which contract of sale was never consummated, because defendants did not and could not give the plaintiff possession of the land. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff.

Defendant was convicted of tbe larceny of a borse, and sentenced to tbe penitentiary for three years. He now appeals to this court.

This is an action to recover damages for stock killed by defendant at a point where it had the right, but had failed, to fence. The petition contains five counts. The first count . alleges that, on the twenty-sixth day of February, 1881, the defendant ran its train over, and killed, a tliree-year-old heifer, the property of the plaintiff, of the value of $25.

ActioN for an injunction to restrain tbe defendant, Seaton, as sheriff, from applying certain money on an execution in his bands. There was a decree for tbe plaintiffs. Tbe defendants appeal.

The petition states: First, That plaintiffs are the widow and heirs at law of Josiah Wearin, deceased; Second, That plaintiffs, as such widow and heirs at law, are the owners of certain real estate, described in the petition; Third, That defendant makes some claim to said real estate adverse to the plaintiffs; and, Fourth, That said real estate has been actually and notoriously in possession of their ancestor and themselves for the last twenty years, under a claim of…

This is an action brought by the plaintiffs, who are trustees of Greenfield township, Jones county, to recover upon an official bond of the defendant, Bare, given by bina as road supervisor of a road district in said township. It is alleged that there has been a breach of the bond, because said Bare Las failed to account for and pay over certain public money which .catne into his hands as such officer. The defendants filed an answer to the petition.

AotioN in equity for an accounting and other relief. The court decreed that there was due tbe plaintiff from tbe defendant a certain sum, and entered a decree tberefor, and also that tbe defendant should convey to tbe plaintiff certain land in Page county. Both parties appeal, tbe defendant perfecting bis appeal first.

The petition alleges, in substance, that plaintiff was married to defendant May 8, 1879, and, wit-li the exception of a short time, continued to cohabit with defendant until January 8, 1883; that about January 1, 1883, defendant commenced to abuse and ill treat plaintiff, calling her a thief, and demanding explanations, and informing her that she could no longer live with him, or be supported by him, unless explanations of his accusations were made, of which plaintiff was…

The plaintiff is tbe widow of J. Q. Coates, deceased, and the administratrix of bis estate, and she seeks to recover damages for injuries resulting in the death of the deceased, from being caught in a frog and run over by .one of defendant’s trains, while engaged in coupling cars at Yinton, in this state. There was a trial by j ury, which resulted in a verdict and' judgment for plaintiff for $5,000. Defendant appeals.

The plaintiff is the owner of a judgment against B. W. Cronan. An execution was issued on the judgment, and the defendant was garnished as a supposed debtor of Cronan, which alleged obligation or debt grew out of a claim for compensation for viglit of way which, defendant had condemned through certain land of Cronan. A trial was had without a jury, and a judgment was rendered for the plaintiff for $50. The garnishee appeals.

B. W. Spabgub died intestate in tbe year 1880. He was tbe owner of a residence in tbe village of Yillisca, and of a farm in that vicinity. Mary Spargur was bis widow, and •entitled to one-tbird of bis real estate.' After bis death sbe •continued to occupy tbe residence in tbe village, and Sarab M. Hall, a daughter, with her family, also occupied tbe residence, under a contract to board her mother for a certain compensation.

The defendants constitute tbe board of supervisors of Fremont county. Tbe plaintiff applied for a writ of certiorari to test tbe legality of tbe proceedings of tbe board in selecting tbe Sidney Union Advocate and Farragut News as tbe official papers of Fremont county.

This is an action in equity to set aside a sheriff’s sale of certain real estate, and cancel the certificate of sale, upon the alleged ground that the judgment upon which the sale was made was not the indebtedness of 'the plaintiff, nor a lien upon the land sold. There was a trial by the court and a decree for the plaintiff. Defendants appeal.

ACTION in chancery to restrain defendants from interfering with and obstructing a private way granted plaintiff. Upon a trial upon tbe merits, plaintiff’s petition was dismissed. He now appeals to this court.

. ActioN in equity. The relief asked is that an injunction issue restraining the defendant from the commission of certain alleged trespasses, and that the damages for certain trespasses committed be ascertained, and that the plaintiff recover a judgment therefor. An injunction was issued, which the defendant moved to dissolve upon the answer and certain affidavits in support thereof. Affidavits were also filed by the plaintiff in resistance of the motion, which was overruled.

Appeal from Pottawattamie Circuit Court. AotioN of replevin. The cause was tried without a jury, and judgment rendered for defendant. Plaintiff appeals.

The plaintiffs are creditors of one Cable. As such they brought this action in attachment against him before a justice of the peace, and caused a notice of garnishment to be served upon Singmaster as garnishee. The justice rendered judgment against both the principal defendant and the garnishee. An appeal was taken to the circuit court, and judgment was rendered against the principal defendant, but the garnishee was discharged. The plaintiffs appeal.

The defendant is administrator of the estate of G. Oarjien-ter, deceased. The plaintiff erected a monument to the memory of the deceased, and sought in this proceeding to obtain payment therefor from the estate. Certain of the heirs at law of the deceased objected to the allowance of the claim, and upon a trial the court refused to allow the claim, and the plaintiff appeals.

<p> Appeal from Butler District Court. </p> <p>AotioN to foreclose a mortgage on real estate, executed by G. W. and Patrick Keenan to James Keenan. Tbe defendants, claiming to be tbe owners of tbe mortgaged premises, were made parties to tbe action, and a decree was rendered foreclosing tbe mortgage, and defendants appeal.</p>

ActioN before a justice of the peace to recover double the value of a calf killed by a train on defendant’s road, at a place, as claimed by the plaintiff, where the right to fence existed. By agreement of the parties, the j ustice made a finding of facts, and rendered judgment for the plaintiff. The defendant sued out of the circuit court a writ of error. The judgment of the justice was affirmed, and the defendants appeal.

<p> Appeal, from Polk Circuit Court. </p> <p>This is an action for the foreclosure of a mechanic’s lien. The circuit court found the amount due the plaintiff to be $30,110. A judgment was entered against the Des Moines & St. Louis R. R. Co. for that amount, and tlie same was established as a mechanic’s lien upon the railroad of the defendant, and declared to be prior and superior to the liens of the other defendants. The defendant' appealed, and, desiring to supersede the judgment and decree, an application was made to the clerk of the circuit court to fix the amount of tlie penalty in the supersedeas bond. Tire clerk fixed it at $64,000, being double the amount of the judgment, with interest and costs. Thereupon appellants applied to one of the justices of this court to fix the amount of the bond.</p> <p>A hearing was had, and the penalty in the bond was fixed at $2,000, with leave to appellee, if he should be so advised, to move the full bench for an increase of the penalty.</p> <p>That motion, having been made, is now submitted to the court for its determination.</p>

This is an action to recover damages for tbe breach of a bond, and also for an injunction against the defendant, to prohibit him from working at the blacksmithing business in-Postville, or within four miles thereof. A temporary injunction was granted, which was dissolved on motion, and plaintiff appeals.

ActioN in chancery to settle the business of a copartnership, and to recover an amount due plaintiff, one of the partners, which he alleges is in the hands of defendant, his copartner. The cause was sent to a referee, and upon his' report a decree was entered for the value of the assets of the firm found to be in defendant’s hands. Defendant appeals.

These are actions upon a supersedeas bond given in actions appealed to this court. A demurrer to the petition in each case was sustained, and judgment thereon was rendered for defendants. Plaintiffs appeal. The cases, involving the same facts, were submitted upon one abstract.

ActioN in chancery to foreclose a mortgage. There was a decree granting the relief prayed for by plaintiff. The defendant, Scofield, alone appeals. The facts of the case appear in the opinion.

ActioN in replevin brought to recover possession of certain hay, oats and corn. The plaintiff claims the right of possession by virtue of a chattel 'mortgage. The defendants claim the right of possession under the levy of an execution issued upon a judgment against the mortgagor. There was a trial to a jury, and verdict and judgment were rendered for tlie defendants. The plaintiff appeals.

AotioN upon an account for goods sold and delivered. The defendant for answer averred certain facts as constituting payment. Tbe plaintiff demurred to the answer upon the ground that the facts averred did not constitute payment. The court sustained the demurrer, and the defendant electing to stand upon his answer, judgment was rendered for the plaintiff. The defendant appeals.

The petition states that the defendants are the owners of a slaughter-house, which is situated near the limits of the city of Davenport, and near one of the suburbs thereof, in which the plaintiffs reside. “ That at said slaughter-house large numbers of cattle, sheep and hogs are confined in small enclosures or pens, where they are fed and watered, and the excrement, decayed food, slop and other filth, retained and allowed to decay; that said cattle, sheep and hogs are at…

Afpfpedl from Buchanan District Cowl This is an action to recover damages for an alleged breach of the official bond of tbe defendant, Currier, wbo is sheriff of Buchanan county. There was a trial by the court, and a judgment for the defendants. Plaintiff appeals.

This is an action to recover damages for the breach of the covenants in a deed for certain real estate. The action was aided by an attachment. The defendant, in addition to an answer putting, in issue the plaintiffs right of recovery, set up a claim for damages for the alleged wrongful suing out of the writ of attachment.

ActxoN to recover for the support of two paupers, and also for certain expenses incurred in behalf of an insane person, and for damages caused by him. The defendant demurred to certain counts of the petition, and moved to dismiss as to other counts. • Both the demurrer and motion were sustained. The plaintiff appeals.

ActioN to recover for the breach of a contract to marry. There was a judgment upon a verdict for plaintiff. Defendant appeals. The facts of the case involved in the questions ruled by the court appear in the opinion.

Tiie plaintiff brings this action for the recovery of $206.50, a balance which he alleges to be due him as rector, for the year 1880, of St. Mark’s church of Waterloo, of the denomination known and styled “The Protestant Episcopal Church in the United States of America.” Upon the production of the plaintiff’s evidence, the court, upon motion of the defendant, directed a verdict for the defendant. The plaintiff appeals.

The petition states tbat the defendant is engaged in the business of mining coal, and that it was its duty to “provide good and safe mines, and to keep them in good repair, and particularly to see to and provide good, safe, sufficient and properly placed supports, props, good and safe road ways, and good working faces.” That defendant, not regarding its duty in this respect, negligently failed to provide the necessary timber to secure the mine where the plaintiff’s intestate…

IN July, 1880, Jno. H. Iselin and Henry II. Iselin were partners, doing business under the name and style of John H. Iselin & Oo. As such partners they became indebted to the First National Bank of St. Paul and A. ~W. Sleeper & Bro. To secure said indebtedness, John II. Iselin and. wife and Henry Iselin executed to A. W. Sleeper, trustee, a deed of trust on certain real estate.

The defendant, Loomis, obtained an injunction against tbe plaintiffs, J. W. Nord and Geo. Ford. Afterward tbe action was dismissed by bim. This action is brought upon the injunction bond to recover for damages alleged to have been sustained by reason of the injunction, and also for attorney’s fees alleged to have been paid. There was a trial to the court, and judgment was rendered for tbe plaintiffs. Tbe defendants appeal.

This is an action to. recover damages for property destroyed by a fire set out by an engine on tbe defendant’s road. There was a jury trial, resulting in a verdict and j udgment for plaintiff for.$497.80. The defendant appeals.,

Afjpeal from Allamakee Circuit Court. In June, 1877, the plaintiff recovered a judgment in the district court against Malacbi Powers, who died in September, 1878, and the defendant was appointed administrator of his estate. Notice of his appointment and qualification as such was given October 20, 1878.

The defendants-recovered a judgment against the plaintiff by default, and this action was brought to set the same aside, under sections 3154, 3157 and 3158 of the Codé, on the ground of “ unavoidable casualty or misfortune,” which prevented the plaintiff from defending the action to which it is alleged she had a good defense. The court held that the plaintiff was not entitled to the relief asked, and she appeals.

AotioN to quiet title to lot 245 in tbe city of Dubuque. The plaintiff claims under a tax deed executed to him by the treasurer of the city of Dubuque, in pursuance of a tax sale purporting to be made upon a special tax for laying a plank sidewalk in front of the lot. The defendant, Kiene, claims to be the owner in fee simple of the- south half of the lot, and the defendant, Zumlioff, of the north half.

AotioN in chancery to enforce the right of a junior mortgagee to redeem from a sale of the mortgaged premises upon a decree foreclosing a senior mortgage, on the ground that the junior mortgagee was not made a party to the proceeding foreclosing the senior mortgage. A decree authorizing redemption, upon the payment of a sum therein specified, was entered. Plaintiffs appeal.

Stewart & Aiman, a mercantile firm, made an assignment of their property to N. Stewart for the benefit of their creditors. The assignee made a report to the circuit court, showing, among other things, that he had paid a claim against the assignors for the sum of $7,340, secured by notes and a chattel mortgage upon the property of the firm, to the First National Bank of Independence.

The plaintiff’s petition in substance alleges that certain territory, comprising four hundred and eighty acres, is included within the boundaries of plaintiff, and that, on the ninth day of April, 1881, the county superintendent of Linn county, without any power or authority, made an order detaching said territory from the plaintiff, and attaching it to the defendant; that the assessor of Rapids township, in which said lands are situated, listed and assessed said lands for…

AotioN iu chancery to set aside a sheriff’s deed of lauds sold, upon an execution issued upon a decree foreclosing a mortgage. A demurrer to tbe petition rvas sustained. Plaintiffs electing to stand upon their petition, a decree was entered dismissing it, from which they appeal.

The plaintiff’s minor son, wlien driving a team of horses, hittíhed to a wagon, on a highway, attempted to cross the defendant’s road at the crossing. The team was struck by a passing train, and the plaintiff’s son killed. To recover for the services of his son during minority, and for the value of the horses, harness and wagon, this action was brought. The ground of recovery stated in the petition is the negligence of the defendant.

Action to recover damages to the estate of which plaintiff is the administrator, resulting from the death of the intestate, caused by personal injuries received by him through the alleged negligence of defendant, while he was in its employment as a brakeman. There was a judgment upon a verdict for plaintiff. Defendant appeals.

The plaintiffs, as tbe beirs of John Pliilp, Jr., deceased, on the 12th day of December, 1883, commenced this action to recover of the defendant $2,500, upon a policy of insurance upon the life of the said John Philp.

In April, 1819, Hinkley and Norris contracted with Des Moines county to erect a court bouse for the sum of $86, 200.00. In October, 1879, they gave to the National State Bank an order on the county for ail money due them on the contract. The county had knowledge of this order, and the same was filed in the office of the county auditor. Under it the bank drew all the money due under the contract, except the final estimate.

AotioN of REPLEVIN. There was a judgment upon á verdict for plaintiff. Defendant appeals. The facts involved in the questions ruled by the court are stated in the opinion.

AcnoN IN CHANoery. The appeal in this case was taken by defendant from the order of the circuit court overruling his motion to enter a decree upon a jprocedendo issued by this court. The facts of the case upon which the decision is based appear in the opinion.

AonoN in equity to foreclose a mortgage. In April, 1873, O. C. Peters executed a mortgage to the plaintiff on “Lot eight of Zulauf’s sub-division to the city of Ottumwa, said lot being situated at the corner of Front and McLean streets in said city.” In March, 1874, “to correct an error” in the foregoing, the mortgagor executed another mortgage to the plaintiff, which states that the description which reads, lot 8, “Zulauf’s sub-division,” should read “Zollar’s addition to…

<p>1. Redemption: from mortgage foreclosure: by junior lien-holder kot made a pabty. A junior lien-holder lias in equity a right to redeem from a senior mortgage until that right is cut off by foreclosure, ancl it is not affected by foreclosure proceedings to which he is not made a party. Such equitable right to redeem is not taken away or abridged by the statute providing for redemption after foreclosure.</p> <p>-■: -: of homestead by judgment creditor. A mere judgment creditor has no lien upon the debtor’s homestead, and he has no right to redeem the same from one who purchases it under the foreclosure of a senior mortgage.</p> <p>3. -:-: terms of. A junior incumbrancer, in making redemption from a senior mortgage, is required to pay the full amount of the mortgage debt, even though he seeks to redeem but a part of the mortgaged premises.</p> <p>4. Mortgage:, payment or purchase of: merger: redemption. Where one obtains the legal title to land under the foreclosure of a mortgage made by another, and he afterwards purchases and has assigned to him a junior mortgage made by the same mortgagor upon the same land, under the circumstances revealed in this case, the transaction will not be regarded as a payment of the junior mortgage, and a judgment creditor not made a party to the forecloseure suit, and whose judgment is of later date than the junior mortgage thus purchased, ■ cannot redeem in equity from such purchaser, without paying the amount of the junior as well as of the senior mortgage.</p> <p>5. Action in Equity: parties defendant. All the persons necessary to the full and final determination of the interests involved should be made parties to a suit in equity; but the rights and liabilities of such as are not made parties cannot be adjudicated.</p> <p>G. Redemption: from mortgage foreclosure: by junior incum-brancer not made A PARTY: terms of. One who purchases real estate under the foreclosure of a mortgage, to which a junior incumbrancer was not made a party, holds the property subject to redemption by such junior encumbrancer, and must account for the rents and profits of the premises while enjoyed by him, and is entitled to credit for improvements made and for taxes paid upon the land.</p>

<p>1. Contract to Sell Land; performance: facts rot constituttngí. Where, by the terms of a contract, a real estate agent, upon “finding a purchaser” for a tract of land, -was to receive certain compensation for his services, and he found one who said that he would take the land, hut the owner, having then sold the land to another, was unable to make a deed to the agent’s alleged purchaser, held that the agent could not recover the agreed compensation, without showing that the purchaser found by him was in a condition to comply with the contract, or to respond in damages for a failure so to do.</p> <p>2. Practice in Supreme Court: objection too late. A discrepancy between the allegations and the proof cannot be urged for the first time in this court.</p> <p>3. Evidence: tkactice : contradicting one’s own witness. A party is never precluded from introducing other evidence contradicting the statements of his own witness. And so, where plaintiffs introduced defendant’s answer as'evidence on their behalf, they were not bound by the denials therein contained, but could show by other evidence that the things denied were true.</p>

Appeal from Hardin Circuit Court. Aotion upon covenants of warranty. Judgment was rendered for the plaintiff, and the defendant appeals.

Action to recover upon a guaranty of two promissory notes executed by one Snygg to 0. Eussell & Co., tlie plaintiff’s assignors. The defendant for answer averred that the guaranty was made without consideration. He also, as a second defense, pleaded a prior adjudication. To so much of the answer as set up a prior adjudication the plaintiff demurred, and the demurrer was sustained, to which ruling the defendant excepted.

Action oe Replevin. There was a judgment upon a verdict for plaintiffs.' Defendants appeal. The facts of the case involved in the questions decided appear in the opinion.

The defendant was indicted for murder in tbe first degree. Tie was tried, found guilty, and sentenced to death. lie appeals to this court for a reversal of the judgment against him.

ActioN in equity to set aside a contract of subscription to tbe capital stock of the defendant, The Hawkeye Pump and Windmill Oo. There was a decree for the plaintiff. The defendant appeals.

This is a creditors’ bill alleging, in substance, that Martin and Mary Oibnla were husband and wife, and that, being largely indebted, they conveyed certain real estate described in the petition to their two sons, Frank and John, who are made defendants, for the purpose of hindering and defrauding the creditors of the said Martin and his wife. The court found for the plaintiff, and defendants appeal.

ActioN to foreclose a mortgage executed by tbe defendant corporation. Sobert Waller intervened, and seeks to have established a lien prior to that of the mortgage. The court found and entered judgment for the intervenor, and the plaintiff alone appeals.

The plaintiffs claim to be the equitable owners of certain real estate, and by tbeir petition they seek to set aside and cancel certain conveyances thereof to the defendant. The defendant claims to be the legal and equitable owner of the land. There was a decree for the defendant, and plaintiffs appeal.

AotioN IN equity. It is stated in tbe petition that plaintiff, in 1876, was the owner of. certain described lands. That liis title was derived from Palo Alto county under tbe swamp land grant, and that bis title was perfect, except that the lands had not been patented by tbe state of Iowa to said comity.

ActioN in chancery to enforce a mechanics’ lien in favor of a sub-contractor. Judgment was entered against the contractors, but the petition was dismissed as to the owners of the property, the court holding that plaintiffs are not entitled to a lien. Plaintiffs appeal.

The plaintiff was in charge of, and shipped from Nora Junction, a station on defendant’s road, a carload of cattle. After the cattle were placed in the car, tbe plaintiff went to tbe depot for tbe purpose of signing tbe shipping contract. While there, he was informed by the agent that he would have to make haste if he got to the caboose before the train started.

<p> Appeal from Poweshiek Circuit Court. </p> <p>The facts are sufficiently stated in the opinion.</p>

Ajppeal from Lee District Court. Action in chancery to partition certain real estate, being parts of two lots in the city of Keokuk. The plaintiff claims to be the owner of the undivided one-third of the property, and alleges in bis petition that the defendant owns the undivided two-thirds. The defendant denies the interest and claims set up by plaintiff, and alleges that he holds the title to the whole property.

The petition states that the plaintiff is the owner of certain real estate, and that defendant entered thereon without his consent, destroyed fences, committed waste, and has taken and appropriated a strip of land for right of way, and has constructed its road thereon, without having obtained the right to do so; wherefore a recovery is asked.

This action involves less than $100. 'It was tried before a justice of the peace, and taken by a writ of error to the circuit court, where the judgment of the justice was reversed and the plaintiff's petition dismissed, and judgment rendered against him for costs.' Plaintiff appeals.

<p>Record incomplete: appeal dismissed.</p>

<p>Record insufficient: judgment affirmed.</p>

This is an action in equity, by which the plaintiff claims to be the owner of certain real estate, which, it is alleged, she inherited from Washington Phipps, deceased. The ground of the claim is that she is the illegitimate and only child of Phipps, and that in his lifetime he recognized her as his child, and that such recognition was general and notorious and in writing.

Action at law to recover damages for the obstruction of an alleged right of way over land, and for the obstruction of a highway which is claimed to have been established by prescription. There was a trial by the court, and a'judgment was rendered for the defendant for costs. Plaintiff appeals.