Volume 64 — Iowa Reports

Action for fees alleged to be due for tbe service of subpoenas in state cases. At tbe time of tbe service, there were seven state cases pending in Shelby county, in which the testimony of one Wyland was desired, who resided in Benton county.

This is an action in equity, by wbicli it is sought to redeem certain land from a sale upon the foreclosure of a mortgage. There was a demurrer to the petition, which was overruled, and the defendant, T. B. Parker, appeals.

Action to recover possession of a promissory note, or the value thereof. The court directed the jury to find for the defendant, and the plaintiff appeals.

' Action on a policy of insurance in the usual form, to recover damages 'sustained by the destruction by lire of the property insured.

Action in chancery. There was a decree rendered in the circuit court granting the relief prayed for by plaintiff'in bis petition. Defendants appeal. The facts of the case appear in tlie opinion.

Plaintiff brought this action to recover damages against defendant, Kirt, on account of sales by him to her husband of intoxicating liquors, which caused his intoxication, whereby she was injured, as she alleges, in her means of support.

Action for damages on account of the unlawful obstruction by defendant of a public highway. ' The cause was tried to the court, and the judgment was for defendant. Plaintiff appeals.

<p>1. Promissory Note: innocent holder: fraudulent inception: evidence. Where an action is brought upon a negotiable note by one claiming to be an innocent holder for value before maturity, and the defense is that the note was obtained by fraud and without consideration, the burden is upon defendant to prove such defense, and, as tending to prove it, evidence of fraud practiced in the transaction in which the note was given is both competent and material.</p> <p>2. Practice in Supreme Court: assignment of errors: too general. Where an assignment of errors is so general that any one of a number of rulings might be considered under it, it is insufficient, under section 3207 of the Code, and will be disregarded. .</p>

Action upon an information charging the defendant with a violation of an ordinance passed by the town council of the plaintiff town. The defendant demurred to the information, and the demurrer was sustained, and judgment was rendered against plaintiff for costs. The plaintiff appeals.

The defendants were tried and convicted of tbe crime of breaking and entering’ a dwelling’ bouse in tbe nigbt time, in wliicli goods, merchandise and valuable things were kept for use, sale and deposit, with the intent to steal and carry away ¡property therein kept. There was a trial, which resulted in the conviction of all of the defendants, and they appeal.

The petition states that “the defendant delivered to plaintiff a note having indorsed upon the back thereof tlie name of the payees, Brown, Campbell & Gould, and requested plaintiff to indorse the same for the accommodation of the maker, Lee, and that plaintiff did thereupon write bis name ’on the back thereof, and underneath the name of Brown, Campbell & Gould, as a second indorser, and redelivered said note so indorsed to said' Gould; that said Brown, Campbell & Gould were…

Tiie plaintiff is tlie administrator of the estate of John Way, deceased. The action was brought by the decedent. After his death the present plaintiff was substituted. The plaintiff claims to recover for a personal injury alleged tc have been received by the decedent as a passenger on one of defendant’s trains, and by being thrown against a cupola platform, by defendant’s negligence in making a coupling.

This is an action by which the plaintiff seeks to recover of tlie defendant $2,521 and interest, upon a claim under an ordinance and contract for tbe use of certain public lire hydrants. The defendants admitted an indebtedness of $1,379.20, and denied any liability in excess of tliat amount. There was a trial to the court without a jury, and judgment was rendered for the plaintiff for the full amount claimed. Defendant appeals.

This action is against the town of Bellevue, the individuals composing the town council, and others, and the petition states that the defendants unlawfully entered certain premises, and with force and violence pulled down and destroyed a dwelling house, the property of the plaintiff. The defendants justified under a resolution of the town council, declaring the building a nuisance, and ordering its abatement by the destruction of the house.

Action in chancery to foreclose a mortgage. Upon the final hearing on the merits, the circuit court rendered a decree foreclosing the mortgage, but refused to render a personal judgment against the mortgagor; but such refusal is declared to be without prejudice to a future action, should it be brought by plaintiff, to recover a personal judgment against defendant. Plaintiff appeals.

The plaintiffs and other creditors of one E. Mitchell commenced an action against him by attachment, and garnished W. M.- Crowley, who was notified to appear and answer as garnishee on.the first day of the next term of the circuit court. Crowley appeared in obedience to the notice, and the court adjourned on that day, without taking any action upon the garnishment.

George W. Rtiddick, Jxhdge of the Twelfth Judicial District. Upon tbe application of the plaintiff, a writ of habeas corpus was issued, for the purpose of testing the validity of the detention of a child in the custody of the defendant. There was a return to the writ, and at the hearing the child was remanded to the care and custody of the defendant. The plaintiff appeals.

Action on a promissory note. Defendant admits tbe execution of tbe note, but alleges that tbe consideration thereof has failed. lie says that the note was given for part of the price of a corn-sheller sold him by plaintiffs; that said corn-sheller was warranted by plaintiffs to be well made, of good material, and to do good work; but that there has been a failure of this warranty in this, that the shelter would not do good work, nor could it be made to do good work.

In the year 1883, the assessor of the township in which plaintiff resides assessed him on $2,000 as moneys and credits. Plaintiff petitioned tlie board of equalization to strike this item from his assessment, on the ground that he did not own any moneys or credits on the first of January; and, his petition being denied, he appealed to the circuit court. There was a trial in that court, and judgment was entered for defendants. Plaintiff appeals.

The plaintiff in this case seeks to recover certain real estate from the defendant, upon the alleged claim that the same was purchased by the defendant, H. 0. Hieronymus, with the money of the plaintiff, and that the title thereto was taken by said defendant in his own name, when it should have been taken in the name of the plaintiff. There was a trial by the court, and a decree for the defendants. Plaintiff appeals.

Plaintiff alleges that he entered into a contract with defendant, whereby she rented a farm of eighty acres to him for the term of one year, and for which he agreed to pay as rent the sum of two hundred and forty dollars, for which amount lie gave his promissory note; that at the time the contract was made defendant was the owner of the premises, but the undivided one half thereof was incumbered with the lien of a judgment against a third party, and, soon after the term of…

Appeal from Winneshiek District Court. Action in equity. The facts are sufficiently stated in the opinion. Decree-for the defendants, and plaintiff appeals.

Action in equity. The plaintiff avers that she is the widow of W. C. Stidger, who died intestate in 1880; that during her marriage to him he was seized in fee simple of certain real estate in the city of Red Oak Junction; that she has never made any relinquishment of her rights in said property, and that the same has not been sold on execution or judicial sale. She prays that her share may be set out to her.

Action to recover for personal injuries sustained by plaintiff, who was a brakeman in the employment of defendant, and, while in the discharge of his duties, was struck by a cattle-chute, located upon a side track of defendant’s road, and thereby thrown to the ground under the cars, which ran over one of his legs, rendering amputation necessary. There was a judgment upon a verdict for plaintiff. Defendant appeals. The case has before been in this court. See 57 Iowa, 623.

Action on a promissory note executed by defendant, and payable to Low Bros. & Co., and by them indorsed to plaintiff. Defendant aswered that the consideration of the note was money lost on a gambling contract. A demurrer to this answer was sustained, and, defendant refusing to plead further, judgment was rendered against him for the amount of the note, and he appeals.

These are actions at law to recover for money paid as premiums upon certain policies of insurance successively issued to plaintiff, tbe last one being held void, in an action thereon 'to recover for a loss, on the ground that the assured held but a mortgage interest in the property insured, while the policy was issued to him as the absolute owner.

<p> Appeal from Butler District Oourt. </p> <p>Action at law. A demurrer to the petition was sustained, and the plaintiff appeals.</p>

This is an action in equity, by which the plaintiff seeks to cancel of record a certain mortgage upon forty acres of land, executed by her to the defendant, Pitzelberger. It is claimed that the mortgage is void because it was never delivered to Pitzelberger, and because part of the consideration therefor was intoxicating liquors sold by said defendant to plaintiff’s husband in violation of law. There was a trial in the district court, and a decree for the defendant.

This action was commenced before a justice of the peace for alleged forcible entry and detainer. When the cause came on for hearing, the justice, becoming satisfied that- the action involved the title to real estate, and that he, therefore, had no jurisdiction to try the same, made an order transferring the cause to the circuit court.

Action to recover for property sold and delivered, and on an accepted draft. Judgment for tbe defendant, and the plaintiffs appeal.

Appeal from Linn District Oowrt. Appeal from an order dissolving an injunction allowed by the judge of the district court at chambers. Plaintiffs appeal. The facts of the case fully appear in the opinion.

The petition contains three counts. In the first, the plaintiff seeks to charge the defendants upon a draft as the drawers thereof. In the second, it seeks to recover the same amount as for money loaned. On the third, it seeks to recover the same amount upon the alleged ground that the defendants assigned to the plaintiff indebtedness to that amount due from one Yalleau, and afterwards collected the indebtedness from Yalleau.

This action was brought by plaintff on a promissory note, given by defendant and two others to one Edward Foster. The suit was instituted before the maturity of the note, and it is alleged in the petition that defendant is about to dispose of his property with intent to defraud his creditors, and it is prayed that a writ of attachment issue against his property. An attachment >was issued, and certain property belonging 'to defendant was seized thereon.

Action upon an account for labor and materials furnished in building a creamery. It is brought against Montgomery Bell and Martha Bell, as executors of the estate of Elisha Bell, deceased. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendants appeal.

This is an appeal by tbe plaintiff from an order of tbe circuit court in relation to certain costs in a proceeding to establish a public road.

Action on an account for certain buggies and carriages, among which was a “ cnt-iinder barouche,” sold and delivered by the plaintiff to the defendant. The price at which the buggies and carriages were sold, and the amount paid thereon, is stated in the petition. The answer admitted the purchase at the price stated, except the “cut-under barouche;” which the defendant denied having purchased.

Appeal from Des Moines District Court. Action on a lies insurance policy. Trial by jury, verdict and. judgment for the defendant, and the plaintiff appeals.

This is au appeal from an order of the circuit court, affirming certain action of the board of equalization of the city of •Davenport, Scott county. The party herein named as plaintiff, the Davenport National Bank, applied by petition to the board to cancel an assessment'for taxes made upon the shares of stock in the bank. This the board refused to do.

Action for damages on account of slanderous words spoken of plaintiff by defendant’s intestate. There was a verdict and judgment for plaintiff for $1,000. Plaintiff appeals.

<p> Appeal from Blade HawJp District Court. </p> <p>Action in equity for specific performance, and for other relief, and for general relief. The court refused to decree a specific performance, .but allowed the plaintiffs certain damages, and rendered judgment therefor against both defendants, The Burlington, Cedar Rapids & Northern R’y Co., and The Burlington, Cedar Rapids & Minn. R’y Co. The B., C. R. & N. R’y Co. appeals.</p>

This is an action in equity, by which the plaintiff • seeks to protect a right of dower and homestead, to which she alleges she is entitled in certain real estate. There was a demurrer to the petition, which was sustained, and the plaintiff appeals.

<p> Appeal from Fctyette Circuit Court. </p> <p>Action to quiet title. The original notice was served on defendant, James, by publication, and judgment by default was entered against him. He appeared within two years and moved the court for a retrial of the cause, which motion was granted. The cause was submitted to the court on an agreed statement of facts, and an order was entered confirming the former judgment. Defendant appeals.</p>

Action in equity to restrain the defendant, Ray, who is county treasurer, from executing a tax deed to certain lauds to the other defendants. There was a decree in accordance with the prayer of the petition. Defendants appeal.

Action upon an account for lumber, and to enforce a mechanic’s lien. The plaintiff furnished lumber as a sub-contractor to the defendant, Winhley, as contractor, to be used in the erection of a dwelling house for the defendant, Murphy. The court rendered judgment against Winhley for $754/94, but denied the plaintiff a mechanic’s lien. The plaintiff appeals from the ruling denying a lien.

Action in chancery to require defendants, one of whom is a road supervisor, and the others sureties on his official bond, to restore a water-course, changed by defendant, the road supervisor, to its original channel, and to recover damages, resulting from the change. There was a decree in the court below for defendants. Plaintiff appeals.

Action in equity to set aside certain conveyances of real estate. There was a decree for the plaintiff. The defendants appeal.

Plaintiffs brought an action by attachment against defendants, Wamsley and Hartness, and caused The Butler County Bank to be served with process of garnishment. The garnishee answered, denying indebtedness to defendants, and denying that it held any property of defendants. Issue was joined upon this answer, and, upon the final hearing of the case, the garnishee was discharged. Plaintiffs appeal. The facts of the case appear in the opinion.

Action in chancery to foreclose a mortgage. There was a decree in which judgment was rendered against the mortgagors for the amount of the debt, and the mortgage was foreclosed as to all of the defendants, some of whom appeal. The facts of the case appear in the opinion.

Action for damages on account of the unlawful sale by defendant of intoxicating liquors to plaintiff’s husband, which caused his intoxication, whereby she was injured in •her means of support. There was a verdict and judgment for plaintiff, and defendant appeals.

Tuts is an action in equity which involves the title to three hundred and twenty acres of land in Sioux county. There was a decree in the district court for the plaintiff, and the defendant appeals.

This is a proceeding to determine upon certiorari tbe validity of the establishment of a certain alleged public road. The writ was granted and served upon the defendants as members of the board of supervisors of Floyd county. A return was made to the writ by the defendants, and a trial was had, and the plaintiff’s petition was dismissed, and judgment was rendered against him for costs. He appeals.

This is an action involving the title to a part of a lot in the city of Council Bluffs. There was a decree in the court below for the defendant. Plaintiff appeals.

G. H. Travese, Judge of the Circuit Court of the Second Judicial District. Habeas corpus. The plaintiff was committed by a justice of the peace to answer before the grand jury for the crime of adultery, presented in an information filed against him before the justice.

Action in equity for specific performance and for other relief. The court dismissed the plaintiff’s petition, and he appeals.

Action to recover certain taxes illegally and erroneously collected, • as is alleged, from plaintiff. Plaintiff obtained j udgment in the district court for a portion of the amount claimed, but the court denied it relief as to the balance of the claim. Plaintiff appeals.

Action at law upon a policy of insurance. There was a judgment upon a verdict for plaintiff, from which defendant appeals. The facts of the case appear in the opinion.

The petition, as amended, states that the defendants and others formed a benevolent society for the prevention and suppression of intemperance, known and designated as the Ottumwa Temperance Reform Club, and that they were chosen to represent such society as its executive committee; that in March, 1878, the defendants entered into a written contract of lease with plaintiff, by the terms of which said Ottumwa Temperance Reform Club was to and did occupy the premises described…

Action to foreclose a mortgage executed by the defendants. Miller and wife. The defendants, Adams & Eldridge, were made defendants on the ground that they claimed a lien on the property, which the plaintiff claims was junior to the mortgage. Adams & Eldridge filed an answer, and claimed therein that their lien was superior to that of the plaintiff. The court held otherwise, and Adams & Eldridge appeal.

Action on a policy of insurance against loss or damage hy fire. There was a verdict and judgment for plaintiff. Defendant appeals.

Action to recover specific personal property, to-wit, certain agricultural implements. Certain of tbe defendants, to-wit, A-rnasa Cottrell and La Bell Wagon Company, demurred to the petition, and the demurrer was sustained. The plaintiffs electing to stand upon their petition, judgment was rendered for the defendants. The plaintiffs appeal.

The defendants were jointly indicted and convicted of murder in the second degree, and each was sentenced to imprisonment in the penitentiary for the term of twenty-one years. They now appeal to this court.

The plaintiff was an employe of the defendant, and his occupation was that of a sweeper in its round-house, and lie claims that, without fault or negligence on his part, he fell into a hole, which had been negligently and carelessly left uncovered by the defendant’s other employees, whereby lie was greatly injured. Trial by jury, and judgment for the defendant, and the plaintiff appeals.

<p>1. Highway: established without notice: jurisdiction ,of supervisors : obstruction by land-owner. No presumption can be entertained in favor of the jurisdiction of the county supervisors to establish a highway; and where defendant was indicted for obstructing an alleged highway over his own land, but the record failed to show that any notice had been served upon him of the proceedings for the establishment of the highway, or that he had in any way waived such notice, and there was no evidence aliunde (if, indeed, it were competent) of such notice or waiver, held that the proceedings were without jurisdiction and void, and that a conviction under the indictment could not be sustained. State v. Berry, 12 Iowa, 58, and Alcoit v. Acheson, 49 Id., 569, followed.</p>

This is an'action for a personal injury alleged to have been received by plaintiff by falling upon a defective sidewalk in Mason City. There was a trial by jury, and a verdict for the plaintiff for one dollar, and he appeals.

Defendant was convicted of grand larceny, and sentenced to the penitentiary for the term of three years. He now appeals to this court.

The plaintiff ajtplied for and obtained an order of removal to - the circuit court of the United States. Erom this order the defendant appeals.

This action is prosecuted by plaintiff to recover damages in’consequence of a personal injury sustained by him, as he alleges, in consequence of the- negligence of the defendant in permitting an obstruction to remain in one of its streets. There was a verdict and judgment for plaintiff in the circuit court, and defendant appeals.

Action in equity to enjoin the enforcement of a certain judgment rendered by a justice of the peace. There was a trial to the court, and judgment for the plaintiff. The defendants appeal.

The plaintiff is a judgment creditor of the defendant, Samuel Cook, and as such he brings this action in equity against him and his wife, Sarah Cook, to set aside a deed of certain real estate, and a bill of sale of certain personal property, alleged’ to have been executed to her by her husband without consideration, and for the purpose of defrauding his creditors. There was a decree for the plaintiff, and the defendants appeal.

Action to enforce a mechanic’s lien. The defendant was engaged in building a hotel in the city of Des Moines, under a contract with one Cate to furnish the labor and materials.' The plaintiff furnished brick as a sub-contractor under Cate, and this action is brought on a balance of account for such brick. The last charge was made July 30,1881. The statement and affidavit for a lien were filed August 8, 1881, and notice thereof was served upon the defendant upon the same day.

This is an action in equity for an injunction to restrain the issuance of a warrant for certain money by the auditor of state, and the payment of the same by the state treasurer to the Farmers’ Protective Association. Upon the filing of the petition a temporary injunction was allowed. The defendant filed a sworn answer to the petition, and moved to dissolve the injunction upon bill and answer.

This is an action to recover the possession of land occupied by defendant with its railroad track, being a strip one hundred feet broad extending through plaintiff’s farm. A demurrer to defendant’s answer was sustained, and a demurrer to an amendment to plaintiff’s petition was overruled. The defendant failing to plead further, and the plaintiff’s damages being assessed by a jury, judgment in favor of plaintiff was rendered, from which defendant appeals.

Indictment charging that the defendant “ did erect, establish and continue a certain building and place, in which he kept and sold, and kept with intent to sell, all intoxicating liquors, to-wit, whiskey, gin, rum, alcohol and wine.” The indictment was found in March, 1882, and charged that the crime was committed in April, 1881.

Plaintiff brought this action to recover possession of a strip of land one hundred feet in width through a certain forty acre tract. She alleges in her petition that she is the owner of said strip of land, and that she is entitled to the possession thereof, and that defendants unlawfully keep her out of possession theieof. The defendants in their answers deny plaintiff’s ownership and right of possession of the premises.

Action upon an information for tbe violation of an ordinance designed to prevent tbe sale of intoxicating liquor in tbe city of Albia, and at all places within two miles of tbe corporate limits. There was a trial before tbe mayor of tbe city. • Tbe defendant was found guilty, and judgment was rendered upon tbe finding. From tbe judgment the defendant appealed to tbe district court, and verdict and judgment were rendered against him in that court. He now appeals to this court.

Action before a justice of the peace upon an information against certain intoxicating liquors. The defendants, Bensberg & Cheadle, were served with notice under the supposition, as we infer, that they were the owners, or claimed to be. They appeared and demurred. The justice overruled the demurrer, and on trial rendered judgment that the liquor be forfeited.

Action in chancery to subject, by a creditor’s bill, certain, property to judgments recovered by plaintiffs. There was a decree in favor of plaintiffs. Befendants appeal.

An information was filed before a justice of the peace by B. E. Pasley against the defendant, charging the latter with the crime of assault and battery. There was a trial before a jury, and the defendant was found not guilty, and thereupon the justice taxed the costs to said Pasley as prosecuting witness, and he appealed to the district court. Judgment was rendered against Pasley by the district court, and he appeals.

Plaintiff brought tbis action in equity to subject certain' real estate, tbe title'to which, is in defendant, to a judgment which lie obtained against defendant’s husband.

Plaintiff filed liis petition in tbe court below, and demanded a judgment against tbe defendants upon a promissory note, and a decree foreclosing a mortgage upon certain real estate, given by Henry Kassing and Celinda Kassing, to secure tbe payment of tbe note. At tbe September term, 1883, of said court, Henry Kassing and Celinda Kassing appeared by counsel. Tbe defendant, Loper, made default. A judgment and decree were rendered as prayed against all of tbe defendants.

Appeal f rom Linn District Court. It is stated in the petition that the plaintiff is a minor, and was in the employ of the defendant as a brakeman on a freight train, and that, without negligence on his part, when endeavoring to couple certain cars, because of defendant’s negligence, his hand was caught and injured. The ground of the negligence stated in the petition is that the cars were violently and forcibly thrown together.

This is an action to recover double the value of certain cattle alleged to have been hilled by one of the defendant’s engines at a point on its-railroad where it had the right to keep and maintain a fence, and where, at the time of the accident, there was no fence. The petition also contained a cause of action for allowing fire to escape from one of defendant’s engines and destroying a fence, the property of plaintiff.

These actions were originally brought at law against tlie respective defendants first named in the titles of the cases, to recover lands. By amendments of the respective petitions, the American Emigrant Company was made a defendant to each action, and the causes were transferred to the equity docket upon pleadings presenting equitable grounds of relief or of defense.

Action to recover attorney’s fees. Upon the motion of defendants, the venue of the cause was changed on the ground that the action was brought in the wrong county, and not in the county of defendants’ residence. Erom the order changing the venue of the case plaintiffs appeal.

The defendant was accused of the crime of murder, committed, as charged in the indictment, in the killing of one William Swanson. He was convicted of murder of the second degree, and was sentenced to a term of imprisonment in the penitentiary, and from this judgment he appeals.

The plaintiff by petition to the cireuit court asked that the appointment of defendant as administrator of the estate of Melville Madden, deceased, be revoked. The request was denied, and therefrom plaintiff appealed.

The defendant was indicted for murder in the first degree. He was convicted of manslaughter, and sentenced to the penitentiary for seven years. From the judgment he appeals.

Action to recover alimony on tlie ground that the defendant has failed and refused to provide for the maintenance and support of the plaintiff and her child. The defendant in his answer pleaded that plaintiff, without sufficient cause, had abandoned him and the home provided for her, and refused to live with him, although he had frequently requested and urged her to do so.

The plaintiff, as a resident and tax-payer of the independent district of Bloomfield, and patron of the public school taught in the district, brings this action against the teachers of the school and directors of the district, and prays for an injunction to prevent the reading or repeating of the Bible, or any part thereof, in the school, and to prevent the singing of religious songs in the school.

■ The plaintiff, A. Baudouine, is a merchant doing business in the city of New York. As sucb, lie sold and delivered goods to tlie defendant, W. D. Grimes, of Burlington, Iowa, doing business under tlie name of W. D. Grimes & Co. This action is brought on account for goods thus sold and delivered. To the account the defendant pleaded a counter-claim. The controversy arises upon the question as to the validity of the counter-claim.

Pbainxiffs are property owners and tax-payers in Madison township, Lee county. Defendant, Blackburn, is county treasurer, and the object of this action is to restrain the collection of a tax voted in aid of the Fort Madison & Northwestern Railway Company. The relief asked by the plaintiffs was granted, and the defendants appeal..

This action is brought by plaintiff to recover an installment of interest which he alleges accrued in his favor on the first of March, 1880, on a certain title bond given by him to 'defendant, conditioned for the conveyance to defendant of certain real estate. Judgment was rendered for plaintiff in tlie circuit court, and defendant appeals.

On the twelfth clay of January, 1883, the plaintiff filed her petition against the defendant for a divorce. The original notice was personally served on the defendant on the sixteenth day of January, 1883. At the time of the filing of the petition, plaintiff'filed a motion for temporary alimony, together with affidavits in support thereof.

.Plaintiffs brought'this action in equity to recover an alleged balance due them for work and labor performed by them in constructing the embankment or earth work of twenty-six miles of railway for the defendant. The judgment of the circuit court was for defendant, and plaintiff appeals.

B. P. Mells was appointed guardian of O. L. Bland, a minor, and accepted the trust on the twenty-fourth day of August, 1877. Mells made no report of his guradianship to the court at any time during the minority of his ward. After Bland became twenty-one years of age, he caused a citation to issue from the court below, requiring his said guardian to make a report. A report was accordingly filed, to which Bland made certain objections and exceptions.

This is an action for a personal inj ury which, the plaintiff alleges he received by being run over by one of defendant’s trains. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

<p> Appeal from Appanoose Circuit Court. </p> <p>The defendant, as sheriff, under two writs of attachment, levied on the property in controversy, consisting of two horses, a one-seated top buggy and a buffalo robe, and the plaintiff seeks in this action to recover said property, on the ground that it was exempt from execution. Trial to the court, judgment for the plaintiff, and the defendant appeals.</p>

<p> Appeal from Monroe Circuit Court. </p> <p>Action for the recovery of five car loads of coal. There was a verdict and judgment for defendant. Plaintiff appeals.</p>

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

The plaintiff was a passenger on a freight train operated by the defendant, and claims to have been injured because of the negligence of the employes of defendant in the operation of the train. Trial by jury, judgment for the plaintiff, and defendant appeals.

A/ppeal from Dallas Circuit Court. This action was originally commenced before a justice of the peace, by a petition in which the plaintiff claimed fourteen dollars and twenty-five cents “ for services performed for the defendant.” A demurrer to the petition was overruled by the justice of the peace. The defendant applied to the circuit court for a writ of error. The writ was denied, and the judgment cf the justice was affirmed. Defendant appeals.

These two proceedings are in equity, and it ■ is sought thereby to subject certain personal and real property, the title to which is in J. A. Rivers, to the payment of judgments against E. B. Rivers. The actions were united, and tried in the court below as one, and a decree was entered for the plaintiffs. Defendants appeal.

Appecd from, Guthrie Distriet Gourt. Action to quiet the title and recover the possession of certain land. Defendant, Elvira, in an answer and cross-bill, claims title and the right of possession, and alleges that a deed from her to plaintiff, under which he claims title, was procured by fraud. She prays that the deed may be set aside and her title quieted. The petition of plaintiff was dismissed, and a decree was entered granting relief to defendant. Plaintiff appeals.

Action to recover for taxes alleged to have been illegally exacted of the plaintiff by the defendant, and paid by plaintiff under such illegal exaction. There was a trial to a jury. A peremptory instruction having been given by the court to the jury to render a verdict for the defendant, a verdict was rendered accordingly, and judgment was rendered thereon. The plaintiff appeals.

.Action upon a bond given to discharge property seized under a writ -of- attachment. The cause was tried to the court without a jury, and judgment rendered for defendant. Plaintiff appeals.

The plaintiffs sold and delivered goods to the defendant, W. II. Peterson, and they bring this action against him on his contract to pay for the goods, and against the defendant, S. P. Harvey, as guarantor of the contract.

<p> 'Appeal from Wayne Circuit Court. </p> <p>Action on two promissory notes payable to W. W. Campbell or bearer, and to foreclose a mortgage given to secure the same. Trial to the court, judgment for the plaintiff, and the defendants appeal.</p>

District GouH. This is a suit on a promissory note for $1,218.50, executed by the defendants, and payable November 1, 1882, on condition that plaintiffs, who are the payees named therein, shall perform a written agreement of even date therewith.

This is an action in equity, and involves tlie title to one-hundred and twenty acres of land. Tlie plaintiff claims to be the owner in fee of the land, and prays that his title may be-quieted. The defendant claims that he is the absolute owner,, and, by a cross-petition, demands that the title may be quieted in him Upon a trial in the circuit court, the petition and' cross-petition were dismissed without prejudice, and both: parties appeal.

Action to quiet title to a certain tract of land in the city of Des Moines, known as Market Square. The defendant, the city of Des Moines, filed an answer, in which it averred, among other things, that in January, 1856, one W. A. Scott, through whom the plaintiffs claim title, being then the owner of the land, made a statutory dedication of the same as pub-lie ground.

It appears from the averments of the petition that on the fourth day of June, 1878, the plaintiff recovered a judgment in the circuit court of Linn county, against the Burlington, Cedar Bapids and Minnesota Bailroad Company, for some sixty-five thousand dollars, and that on the twentieth day of June, 1880, an execution was issued on said judgment and placed in the hands of the sheriff, who, being unable to find any property of said railway company, made a demand upon the…

Action to redeem from a tax sale. The plaintiff averred in his petition, in substance, that since January, 1875, he has been the owner of a certain forty acres of land in Olay county; that he failed to pay the taxes thereon for the year 1878, and that in November, 1879, at an adjourned tax sale, the county treasurer sold the land to the defendant; that for each and every other year until the commencement of this suit the plaintiff has paid the taxes on the land; that from…

Action for the specific preformance of an oral contract whereby the defendant agreed to convey to the plaintiff certain real estate. ‘Trial to the court, judgment for the plaintiff and the defendant appeals.

Afpeal from Polk Circuit Court. Action to recover for personal injuries sustained by plaintiff, by reason of having been bitten by a dog owned by defendant. There was a judgment on a verdict for plaintiff. Defendant appeals.

Plaintiffs allege in their petition that they are the publishers of a newspaper in the city of Red Oak, and that, at the instance and request of defendant, they published in their said newspaper the report of the city clerk on the system of water works constructed by the city, and that said report amounted to four hundred and seventeen squares, and that the value of publishing the same was one dollar per square.

It appears from the petition in this case that Philena Y. Davis was the lawful wife, and is now the widow, of John Davis, deceased, who died seized of a quarter section of land in Madison county. Pliilena Y. Davis is, and has been for a number of years, incurably insane, and has been kept in one of the state insane asylums, and in the county poor house of Madison county.

<p>1. Corporations: issuance of stock for less than par: liabilty OF THE HOLDERS FOR UNPAID BALANCE: TEB RUM DISCUSSED AND applied. The directors of a corporation have no power to issue stock for less than its par value, or with an understanding that the unpaid balance shall not he called for; and to do so is a fraud upon the law, the other stockholders and the creditors of the company, and the transaction will not be sustained, but the persons so securing the stock will be liable for the unpaid balance in an action by a creditor of -the corporation, under § § 1082 and 10S4 of the'Code. And it is not necessary to such liability that the holder of the stock so issued should have subscribed for the same, for his acceptance of the stock, with knowledge of the facts, is sufficient to create the liability. Nor is the rule different where the corporation is insolvent, and its stock of, at most, doubtful value, and the stock is issued to a creditor in settlement of a demand which it had no other means of paying. Accordingly, in this case, where a railway company was indebted to a construction company in the sum of $70,000, which it was unable to pay, and, in satisfaction of the debt, it issued to the construction company certificates of stock of the face value of $350,000, which shares were distributed among the members of the construction company, held that such members were stockholders, the same as if they had subscribed for the stock and paid 20 per cent thereon, and that they were liable, under the statute, to a creditor of the corporation, to the extent of the unpaid 80 per cent of the par value of the stock, — the $70,000 debt, paid by the stock issued, being only 20 per cent of the par value of the $050,000 of stock so issued.</p> <p>Rothroce:, C. J., and Seevbrs J., dissenting.</p>

The defendants, Greenbaum, Schroder & Co., at the time of the transactions in question, were merchants, and doing business as such in the city of Burlington. The plaintiffs, E. S. Jaffray & Co., and Dunham, Buckley & Co., were creditors of Greenbaum, Schroder & Co. As such, they brought their respective actions in attachment against them.

Action in chancery to quiet tbo title to certain land in plaintiff. There was a decree entered in the circuit court granting the relief prayed for in plaintiff’s petition, and awarding to it possession of the land, from which defendant appeals. The controlling facts of the case appear in the opinion.

Action on a policy of insurance against loss and damage by fire. There was a verdict and judgment for plaintiff in the circuit court, and defendant apjieals.

Afjgeal from Pollc Circuit Court. The plaintiff appeals from an order remanding the cause to the federal court. The defendant appeals from an order overruling a motion made by the defendant to make one Johnson a party. The plaintiff perfected his appeal first.

Action to quiet tbe title to eighty acres of land in plaintiff as against certain adverse claims of tbe defendant. There was judgment for plaintiff, and defendants appeal.

<p>1. Murder: record examined and judgment affirmed. The evidence in this case examined, and held to support the verdict of guilty of murder in the second degree; and, no error appearing in the instructions or rulings of the court, the judgment upon the verdict is affirmed.</p>

Action to refcover upon a’ contract, for the transportation of a car load of apples from Oskaloosa to Council Bluffs. There was a judgment upon a verdict for plaintiff. Defendant appeals.

The Northwestern Masonic Aid Association filed a petition in which both the plaintiffs and defendant were made defendants, the object of the action being to determine which of the parties was entitled to certain life insurance, which the association was willing to pay to whichever party was entitled thereto.

Action to recover a judgment against the defendants, Kniss & Walters, and to establish a mechanic’s lien against the Chicago, Milwaukee & St. Paul R. R. Co. Trial to the court, judgment against Kniss & Walters, but the court refused .to establish a mechanic’s lien against the railroad company. Kniss & Walters appeal.

Action to enforce a mechanic’s lien for the price of lightning rods furnished for and affixed to a building upon a contract with the owner. A demurrer to the petition was sustained, and, plaintiffs refusing to plead further, a judgment was entered for defendants, from which plaintiffs appeal.

<p>1. Appeal.to Supreme Court: less than $100: certificate of trial judge: presumption as to filing. In the absence of evidence to the contrary, it will be presumed that a certificate foran appeal, signed at the term at which the case was tried, was also filed at that term.</p> <p>2. -: -: requisites of certificate. Where an appeal to this court involves less than $100, the certificate of the trial judge must state the identical questions of law on which an opinion is desired; and this must be done in such a way that it shall not be necessary to examine the record in order to understand the questions.</p>

Action in chancery by a creditor’s bill to subject certain real and personal property to a judgment against defendant. B. B. Rivers, which, it is alleged, he fraudulently conveyed to Ms wife and co-defendant, J. A. Rivers. At the trial upon the merits plaintiff’s petition was dismissed. lie now appeals to this court.

Action for an injunction to prevent the sale upon execution of a certain lot in the city of Des Moines. The lot was at one time, owned by one Gardner. The plaintiff is a purchaser from and grantee of Gardner. The defendants, Tluiscamp Bros.* aré judgment creditors of Gardner, having obtained a judgment against him, in the circuit court of Dallas county.

Action on two promissory notes. The defendants answered the petition separately, but both pleaded substantially the following defenses: First, That the consideration for the notes was certain lumber purchased by the defendants, as partners, of the plaintiff, and that a mortgage was given tbereon, and on other property, to secure the payment of the notes; Second, That the partnership was dissolved in September, 1880, and that the defendant, Paisley, took all the partnership…

<p>1. Taxation: property of municipal corporation : exemption. The property of ar. incorporated town, when devoted entirely to the , public use, and not held for any pecuniary profit, is exempt from taxation, under section 797 of the Code; but where property is devised to trustees, in trust for the town, with a provision that the rents and profits shall be applied to a public purpose, it is held for pecuniary profit, in contemplation of the statute, and is subject to taxation. Compare Fort Des Moines Lodge v. Polk Co., 56 Iowa, 34.</p>

<p> Appeal from Adavr District Court. </p> <p>This action was brought by plaintiff to establish his right to redeem certain lands.from a tax sale. The case was submitted on an agreed statement of facts. The judgment was for plaintiff, and defendant appeals.</p>

<p>1. Fraudulent Conveyance: case not warranting relief. Upon considering the petition and evidence in this case, held that the court was not warranted in setting aside the conveyance in question as being in fraud of subsequent creditors.</p> <p>2. Pleading: waiver of defect: evidence, A failure to attack a petition by motion or demurrer may be a waiver of a defect, as a matter of pleading, but it is not a waiver of the proofs necessary to entitle plaintiff to the relief demanded.</p>

<p>1. Intoxication of Juror: new trial. This court cannot say that there was error in overruling a motion for a new trial on the ground that one of the jurors was intoxicated one evening during the trial, where there was no evidence that he was in any degree under the influence of intoxicating liquors at any time while hearing the evidence and the arguments of counsel, or while deliberating upon the verdict.</p>

Ajojoeals from, Story District Oourt. Actions at law upon a bond executed to secure tbe performalice by defendants of a contract to bnild a school-house. There was a judgment upon a verdict for plaintiffs in each case, from which defendants appeal. The facts of the cases appear in the opinion.

<p> Appeal from Story District Court. </p>

This is an action to recover damages for a personal injury, received by the plaintiff by being forcibly removed from a railroad train by a brakeman in the employ of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

Action in equity to set aside certain conveyances of real estate, and a mortgage on the same. There was a decree for all the defendants except John 0. French. The plaintiffs appeal.

This action is brought by the plaintiff, as the assignee of one Henry of certain alleged wheat receipts. The defendants are the owners of a warehouse, used for the storage of grain. In September, 1874, they received from Henry a certain quantity of No. 2 wheat, and afterwards delivered a portion, but the balance they shipped out and sold, without Henry’s knowledge or consent.

The plaintiffs are lot owners in the city of Des Moines, and claim to have sustained damages by reason of the construction of the defendant’s road on a street on which their respective lots abut. The plaintiffs instituted proceedings for the assessment of their respective damages by commissioners. From the assessment in each case both parties appealed. Both cases were tried to a jury. In the former case there was a verdict for the plaintiff, and judgment was rendered thereon.

This action was brought before a justice of the peace. It is brought to recover damages for the killing of a horse belonging to plaintiff, by a locomotive and train of cars on defendant’s railway. Plaintiff alleges, in his petition, that said horse was of the value of $150, but he asked for judgment for $100 damages and costs.

'Appeal from Mahasha District Court. Action upon a policy of fire insurance. There was a trial to a jury, and verdict' and judgment were rendered for the plaintiff. The defendant appeals.

Action to recover damage for a personal injury received by tbe plaintiff wlieu in tbe employ of the defendant. Tbe latter moved tbe court to transfer tbe cause to tbe federal court. Tbe motion was overruled, and defendant appeals.

Appeal from Mahaslea Gireuit Gourt. Action to reform a contract in relation to real estate,-and for specific performance. Both parties appeal.

<p> Appeal from Webster District Court. </p>

The plaintiff was a brakeman on a freight train, and claims to have been injured by reason of the negligence of the engineer. and fireman in failing to obey a signal given by him to stop the train, so that he could with safety make a coupling it was his duty to make. The plaintiff claims to have been free from negligence on his part. Trial by jury and judgment for the plaintiff. The defendant appeals.

Action To recover on account of personal injuries sustained by plaintiff while in the employment of defendant as a brakeman, which are alleged to have been caused by the negligence of other employes of defendant, engaged with plaintiff in operating the cars at the time of the injury. There was a verdict and judgment thereon for plaintiff. Defendant appeals. The facts of the case are fully stated in the opinion.

Plaintiff brought this action in equity to quiet his title to three hundred and twenty acres of land. Defendant denied that plaintiff was the owner of the land, and in a cross petition alleged that she was the absolute owner thereof, and prayed that her title thereto be quieted. The judgment of the circuit court was for plaintiff. Defendant ajipeals.

The plaintiff procured a judgment against one Harshaw, and caused the defendants to be garnished as his debtors. The answers of the garnishees were controverted by the plaintiff, and there was a trial before a jury. The court directed the jury to return a verdict for the defendants, which they did, and judgment was rendered thereon. The piaintiffs appeal.

Action to recover of defendant, Diehl, money paid to him as sheriff, in proceedings had under the statute for a condemnation of a right of way for a railroad. Hathway intervened, claiming the money on the ground that he was the owner of the land. A demurrer to plaintiff’s answer to the petition of the intervenor was sustained. Erom this ruling the plaintiff appeals.

This is an action to recover damages for the value of a cow killed by one of defendant’s engines, at a public crossing, by reason, as it is alleged, of the crossing of the railroad track being insufficient and unsafe, There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

'This is an action for a personal injury received by the >plaintiff while engaged in repairing a car of the defendant, which was standing upon a side track in the city of Des Moines. When the plaintiff had introduced all of his evidence, and rested his case, the court, on motion of the defendant, directed the jury to return a verdict for the defendant. ’The plaintiff appeals.

Plaintiff’s intestate, while in defendant’s employ as a fireman on one of its engines, was killed, hy being knocked from the engine by a bank of snow near the track and run over by the train. This action is prosecuted by plaintiff to recover the damages to the estate caused by his death. There was a verdict and judgment for plaintiff, and defendant appeals.

Action to recover damages for the hilling of a horse by a train of the defendant. There was a trial by jury, and a verdict and judgment for plaintiff. Defendant appeals.

<p> Appeal from Webster District Gov/rt. </p>

J. D. Griffin, Judge of the District Gourt of the Eighth Judicial District. Action to enjoin the collection of a tax voted by the directors of the defendant district for the erection of a schoolhouse. An injunction was granted which, on motion, was dissolved, and the plaintiff appeals.

This action in equity was brought to obtain an injunction to prevent the defendants from occupying certain premises, to-wit, an alley, for the vacation of which certain proceedings by ordinance had been had by the city council of the plaintiff city, and over which alley the defendants had built an opera house. The action was also brought to set aside the ordinance, and for a decree that the defendants remove the obstruction from the alley and pay damages.

Action for a divorce on the the grounds of such inhuman treatment as to endanger the life of the plaintiff, adultery and willful desertion, and absence for more than two years without reasonable cause. There was a denial of the allegation^ of the petition, and in a cross-petition the defendant asked that he be granted a divorce on the grounds of abandonment, cruelty, and because the plaintiff had committed the crime of arson.

This is an action to recover tbe value of a horse, the prop erty of plaintiff, which it is alleged was killed by one of defendant’s trains. There was a trial by the court, and judgment for the plaintiff. Defendant appeals.

The plaintiff, as assignor of the Iowa Homestead Company, brings this action to recover for certain taxes paid for the use and benefit of the defendant, Plumbe. The court rendered a judgment for the taxes paid, but allowed interest only from the time of the commencement of the action, and allowed a lien upon each tract of forty acres for only the taxes paid upon that tract. Both parties appeal, the plaintiff perfecting his appeal first.

• Appeal from Cerro Gordo District Comt. Action in equity to subject certain real estate to the payment of a judgment against J. J. Glasier, on the ground that a conveyance thereof to Jacob Glasier had been made for the purpose of defrauding the creditors of the former. There was a decree for the plaintiff, and the defendant appeals.

The defendants, Martin Wbeeler and Henry Wheeler, as partners, executed to the plaintiff two promissory notes, payable at J. McDaniels’ bank in Cass county.

ourt. Action to foreclose a deed of trust on real estate executed by the defendant. Thostenson, Long and Breckenbridge were made defendants, on the ground that Thostenson had conveyed to them. The contest on this appeal is between Long and Breckenbridge, the latter being the appellant.

The petition states that the plaintiff and defendant were married in 1851, and that he has been guilty of adultery. The relief asked is a divorce and an allowance of alimony. The allegations of the petition were denied, and the defendant pleaded that the plaintiff, at some time unknown to the defendant, had married one John W. Smith, in the state of Illinois. Decree for the plaintiff, and the defendant appeals.

The petition alleges, in substance, that in August, 18S1, Alexander and Mary Lereaux placed in the hands of the defendant $140, under a parol agreement that the defendant would furnish the balance necessary to purchase the certificate of sheriff’s sale to certain real estate owned by the Lereauxs, and to which their right of redemption existed, and would purchase and hold the certificate of sale as security for the money advanced by him, and, upon payment of the money…

Proceedings for tbe condemnation of a right of way through certain land in Marshall county. An award was made by commissioners, but tbe plaintiff, being dissatisfied with the amount awarded, undertook to appeal to the circuit court of the county. The defendant appeared and filed a motion to dismiss the appeal, the motion being based upon grounds stated as follows: “1.

The plaintiffs are judgment creditors of the defendant’ Christian Turner, the husband of the defendant, Christena L. Turner. . They bring this action for the purpose of subjecting to the payment of their judgment certain real estate, purchased by and standing in the name of the defendant, Ohristena. They base their right of action upon the allegation that the real estate was purchased with the money of her husband. The defendants deny that it was purchased with his money.

This case was before the court at a former time, and the judgment of the district, court was reversed. See 62 Iowa, 714. Upon the procedendo being filed in the distriet court, the plaintiff moved for judgment in accordance with the opinion of the supreme court, and the defendants moved the court to change the place of trial, on the ground that,the trial judge was so prejudiced against them that they could not obtain a fair trial.

.The defendant, Whelan, is sheriff, and, as such, at the instance of the Chicago, Milwaukee, and St. Paul E. Co., appointed six free holders to assess the damages sustained by owners of real estate in said county for right of way appropriated by said railroad company.

Appeal froon Humboldt District Cowl. Action in equity to quiet title to certain land in Humboldt county. There was a decree for the plaintiff, and the defendant appeals.

<p>1. Practice in Supreme Court: motion to strike out evidence: affidavits to support. A motion to strike the evidence from the abstract, on the:ground that it was not preserved by bill of exceptions, or otherwise properly identified, cannot he supported or attacked by affidavits, but must be determined from the record itself.</p> <p>2. -: EVIDENCE NOT IDENTIFIED STRICKEN FROM ABSTRACT. Where it does not appear from the record that the evidence in a law ease was preserved by bill of exceptions, or otherwise identified, though it does appear that it was taken down and filed by the short-hand reporter, and the abstract purports to contain only what, in the opinion of counsel, the evidence tends to establish, that portion of the abstract purporting to set out the evidence will he stricken out on motion.</p> <p>3. Railroads: failure to maintain cattle-guards : injury to stock : double damages. A cattle-guard is not an essential portion of a fence, within the meaning of the statute providing for the recovery of double damages for injuries to stock in eases where railroad companies neglect to maintain fences; but, under section 1288 of the Code, a company is liable for single damages only where stock is injured by reason of negligence in keeping a cattle-guard in repair.</p> <p>4. -: injury to stock: herd-law: contributory negligence: evidence. Where plaintiff, in a county where the herd-law was in force, turned his horses into an enclosure upon his farm fenced with a hedge fence, and they escaped therefrom without his knowledge, and strayed upon the defendant’s track, where they were killed by a passing train, held that he could not be considered guilty of contributory negligence, in the absence of proof that the fence was not reasonably sufficient.</p>

This cause involves less than twenty-five dollars. It was commenced before a justice of the peace, where there was a judgment rendered against the plaintiff, who appealed to the circuit court. A motion was made by the defendant to dismiss the appeal, which was sustained, and judgment was rendered. against A. A. Williams, as surety in the appeal bond, for the amount of the judgment before the justice of the peace. Plaintiff and said Williams appeal.

Plaintiff alleges in his petition that, in the fall of 1881, he rented a farm to defendant, Wait, for the term of one year, the term ending March 1, 1883; that the contract of lease was in writing, and, by its terms, Wait agreed to pay, as rent for the premises, the sum of $575, on the twentieth of October, 1882; that he raised a crop of flax on said premises during the term of the lease, which he sold to the defendants, Hanson & Mills, for the sum of $1,756.25; that Wait…

This is an action in equity to cancel certain certificates of tax sales issued by the treasurer of Lee county, and the tax collector of the city of Keokuk, on the sale of certain property ■ for delinquent taxes. The district court rendered judgment for plaintiff. Defendant appeals.

The petition states that the plaintiff is owner of a certain described piece of real estate, which lies contiguous to, and is bounded on the west by, Okoboji Lake, and that the defendant has erected a dam across the outlet of the lake, which has caused the water to rise and remain many feet above the natural level, thereby causing the banks of the lake to overflow, whereby his real estate has been greatly injured.

Action upon a bond to secure the payment of money provided for by a stipulation filed in a cause pending in court. A demurrer to defendant’s answer was sustained, and, refusing to further plead, judgment was rendered against him, from which he appeals.

Action upon an alleged parol contract of insurance. There was atrial toa jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

This action involves the title and ownership of two horses- and a wagon. The property was levied upon by the defendant, who is sheriff, by virtue of an execution against ThomasDowdell, the husband of the plaintiff. The plaintiff claims-that she is the owner of the property. The defendant claims-that whatever title the plaintiff has in the property is fraudulent as to the creditors of the husband.

The plaintiff, Mary E. Lormer, brought this, her action in attachment, against the defendant, Allyn, and garnished the defendant, Kirk. The garnishee answered, showing that lie was in possession of certain personal property, as mortgagee of Allyn. One Barnard intervened, claiming certain accounts, which accounts both the plaintiff and Kirk claim passed to the latter under the mortgage. The intervenor also claimed certain money collected on accounts of like character.

The defendants were indicted and convicted of the offense of resisting a receiver appointed by the court in the discharge of his duty. They now appeal to this court.

Appeal f rom Dubuque Circuit Court. TnE plaintiff claims of tlie defendant $10,000 on account of injuries to tlie plaintiff’s property on the ninth day of September, 1875, and the fourth day of July, 1876, from a large flow of water passing over Seventeenth street in the city of Dubuque.

Action to recover damages sustained by reason of the malicious prosecution of a eivil action by the defendants against the plaintiffs. There was a judgment upon a verdict for defendants. Plaintiff appeals. The facts involved in the questions ruled by the court are fully stated in the opinion.

The plaintiff owns certain land in Tama county. The defendant constructed, and is maintaining, its road through the land. It has paid all the damages assessed, but the plaintiff claims certain interest upon the damages, and asks that the amount be ascertained, and also for an injunction to restrain the defendant from using the right of way, if the interest that shall be found due shall not be paid within such time as shall be fixed for its payment.

<p>1. Taxes: assessment of: omission of owner’s name in tax-list: validity. Where the taxes on land were duly assessed to the owner, the omission of the owner’s name in transcribing the tax into the tax-list did not invalidate the assessment.</p> <p>2. Tax Sale and Deed: sale for several years: part good — part bad: validity of deed: rule stated and applied. Where land is sold for the taxes of several years, and a deed made pursuant to such sale, the deed is valid, if the sale is legal for the taxes of one of the years, though it is illegal as to the taxes of the other years. Accordingly, in this case, where the land was sold for the taxes of 1873, 1874, 1875 and 1876, the sale and deed were not invalidated by the fact that the taxes for the first three years'had 'not been carried forward on the tax lists, as required by section 845 of the Code, — the sale for 1876' being valid, and sufficient to sustain the tax title.</p> <p>3. Taxes: “erroneously or illegally exacted or paid:” code, §, 870: construction., In section 870 of the Code, which provides, among other things, for the refunding of taxes in certain cases, the words “erroneously or illegally exacted or paid” include taxes paid by . a purchaser at tax sale, for which the land is illegally sold, because the taxes have not been brought forward on the tax' lists, as provided by . section 845 of the Code; and the words “such erroneous tax,” after-wards occurring in said section, are equally inclusive.</p> <p>4. Tax Sale: notice to redeem: service on “person in possession;” construction. Section 894 of the Code, requiring notice of the expiration of the time for redemption of land from tax sale to be served on the “person in possession,” has reference to the person in actual possession only, and does not require such notice to be served upon the owner of land in the actual possession of no one. See Fuller v. Armstrong, 53 Iowa, 683.</p> <p>5. -; ---: LAND TAXED TO NO ONE: NO NOTICE: VALIDITY OF DEED. A tax deed, otherwise valid, will not be set aside on the ground that no notice of the expiration of the time for redemption was served upon the person in whose name the land was taxed, when, according to the averments of the petition, it does not appear to have been taxed to anyone. Compare Fuller v. Armstrong, supra, and Tuttle v. Griffin, ante, p. 455.</p>

<p>1. Negligence: defective structure: knowledge of owner: burden of proof. Action to recover for a personal injury caused by a car-door falling upon plaintiff from one of defendant’s freight trains, while it was passing along the street where plaintiff was standing. The court gave the jury the following instruction: “When the accident is one that ordinarily would not have happened had the defendant exercised ordinary care, proof of the accident and its attending circumstances raises a presumption of negligence on the part of the defendant, and the burden of proof is then cast upon it to rebut the presumption.” Held that the case did not justify the instruction, but that it fell under the ordinary rule that, where the defendant is charged with negligence in the use of a structure which has become defective, it is incumbent upon the plaintiff to prove that the defect came to the knowledge of the defendant, or existed for such a length of time that knowledge should be presumed. See opinion for authorities sustaining the rule.</p>