Volume 66 — Iowa Reports

<p>1. Criminal Procedure; trial without plea; no prejudice — no reversal. Where defendant demurred to the indictment, and upon the overruling of the demurrer he neglected to plead, and through inadvertence the cause went to trial without any plea, but was tried in all respects and by all parties as if a plea of not guilty had been entered, held that defendant was not prejudiced by the irregularity, and that a judgment of conviction upon a verdict of guilty should not be set aside. Code, § 4538.</p>

<p> Appeal froon Pollo Circuit Court. </p> <p>Action to foreclose a mortgage. The Ohicago Lumber Company was made defendant, as claiming to have a mechanic’s lien upon the premises. The court granted a decree foreclosing the mortgage, and established the mechanic’s lien of the Chicago Lumber Company. The defendants, Garvey and wife, appeal.</p>

<p>1. Railroads: injury to stock breaking through fence: sufficiency of fence. A railroad company is not liable for injury to domestic animals which get upon the track by breaking through a fence which is reasonably sufficient to turn live-stock.</p>

Plaintiff brought this action to recover the amount of three installments of rent, which he alleges are due him under a certain lease given by him to defendant.

Afjieal from Black Hawk Circuit Court. The petition states that the grand lodge of the Ancient Order of United Workmen of Iowa is a corporation duly organized under chapter 2, title 9, of the Code of Iowa, relating to corporations other than those for pecuniary profit; that its articles of incorporation were duly filed and recorded in the recorder’s office of Scott county, in” said state, in June, 1874.

The plaintiff appealed to tbe circuit court from the orders, rulings and assessments made by the defendant in relation to the assessment of the plaintiff, as agent, for the purpose of taxation. He also sued out a writ of certiorari from the same court for the purpose of correcting the said assessment. Both cases were heard on the same evidence, and the circuit court affirmed the assessment, and the plaintiff appeals.

This is an action upon a promissory note. There was a trial by jury, and a verdict and judgment for tbe defendant. Plaintiff appeals.

This is an action for damages for personal injury received by the plaintiff while engaged as a brakeman in coupling cars upon defendant’s road. There was a trial by jury, wliicli resulted in a verdict and judgment for the plaintiff. Defendant appeals.

Plaintiff brought this action to recover possession of a town lot in the village of Yan Nést. He alleged in his petition that he was the owner of the property, and entitled to possession of the same, and that defendants wrongfully and unlawfully kept him out of possession. Attached to the petition, as an exhibit, was an abstract of title, showing the claim of title under which plaintiff claimed the property.

Action upon a promissory note. The defendants admitted the execution of the note, and filed a counter-claim, in which they averred that the note was given for a kiln of brick sold to one of them with a warranty; that the warranty had been broken; and that the damages sustained exceeded the amount of the note. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendants appeal.

Action to recover specific personal property. The relief asked is as follows: “ Wherefore your petitioner prays for the issuance of a writ of replevin for the recovery of said goods, wares and merchandise, and, in case of his failure to recover the same, that he have judgment for said sum of $500, and that he have judgment against the said defendant for the said sum of $25 damages, and costs of suit.” Trial to the court, and j udgment for the plaintiff as follows: “ It is…

This is an action for the abatement of a nuisance, and to enjoin defendant from further keeping and maintaining the same. A temporary writ was issued on the order of the judge of the district court. Defendant filed a motion to vacate the order for a temporary injunction, which was overruled, and he appeals from this order.

The petition states that the defendant caused a notice to be published that the district contemplated the erection of a school-house, and proposals therefor were invited, and that it was stated in the notice that the contract for building the house would be awarded to the lowest responsible bidder.

It is averred in the petition “ that while the plaintiff was in her home in Gilman, in said county, engaged in domestic affairs, on the twelfth day of February, 1881, during the absence of.her husband, she was willfully, wickedly and violently assaulted in a hostile manner by the defendant, who did then and there sieze hold of plaintiff by the hands, arms and body, agains't her will, and did unlawfully push and thrust plaintiff against the door, house and room, with the…

Action in equity. The relief asked is that the corporation defendant be enjoined from condemning, under the statute, a right of way over certain real estate owned by the plaintiffs for railway purposes. A temporary injunction was granted, which, on the filing of the answer, was dissolved, and the plaintiffs appeal.

Originally, this was an action of forcible entry and detainer, commenced before a justice of the peace. The justice,being of opinion that the title to real estate was involved, certified the case to the circuit court, where the plaintiff filed a petition, and thereby claimed a recovery of the real estate, and rents and damages. The court found for the plaintiff, and rendered judgment-accordingly. The defendant appeals.

Action on a written contract, whereby the defendant agreed to pay the plaintiff, its general manager, two dollars for “every certificate of membership issued, or that may be issued, by said society.” Trial by jury, verdict for the plaintiff, judgment, and he appeals.

The administrator of the estate of Eli A. Collins appealed from certain orders and proceedings of the circuit court sitting as a court of probate. The facts are stated in the opinion.

This is an action for the abatement of a nuisance. There was a verdict for plaintiffs. Defendant filed a motion in arrest of judgment, which the court sustained. Plaintiffs appeal.

<p>1. Practice in Supreme Court: criminal case: poverty oe appellant: PRINTING ABSTRACTS: RULES DISREGARDED: SUBMISSION SET aside. Where the appellant is a defendant in a criminal case, and it is shown by his own affidavit that he is unable to pay for the printing of an abstract, and by the affidavit or professional statement of his counsel that there is merit in the appeal, the rules in regard to printed abstracts may be waived; but in such case it is the printing only, and not the abstract, that is waived. And in this case, where there wa3 no such showing, and the cause was submitted on the written transcript of the record and the original transcript of the reporter’s notes and a printed argument of the defendants’ counsel, the submission was set aside, with leave to defendants to present the case in the manner prescribed by the rules.</p>

<p> Appeal from, Clinton Circuit Court. </p> <p>Action to recover for the value of certain rails, trees, wire and fence posts alleged to have been taken and carried away by tbe defendant from a farm purchased by plaintiff of the defendant, and which property it is alleged- passed with the farm as a part of the purchase. There was a trial to the court and a finding of facts, and judgment was rendered upon the finding in favor of the plaintiff. The defendant appeals.</p>

<p> Appeal from Pottawattamie District Court. </p> <p>The'plaintiff and defendant were formerly husband and wife. They did not live happily together, and separated, and were divorced. No alimony was provided for by the decree, the parties having made what was supposed to be an equitable arrangement as to the division of the property. Two written contracts were entered into between them in relation to the property. In the last contract the defendant bound himself to convey to plaintiff an interest in certain land held by some minor children, or pay her the value thereof when they should arrive at age. This suit is brought for an alleged breach of this undertaking. The plaintiff alleges that the interest of said children in said land was sold at guardian’s sale, and that plaintiff became the purchaser under an oral agreement with defendant that he would repay to her the purchase-money paid by her. There was a trial to the court, and a judgment for the defendant. Plaintiff appeals.</p>

<p> Appeal from Sao CircvÁt Court. </p> <p>The plaintiff, Fannie Bowen, brings this action to set aside a tax sale to certain land in Sac county, and to quiet her title to the land. The court set aside the tax sale as to an undivided half of the land, and quieted plaintiff’s title to such half. The defendants appeal.</p>

<p>1. Intoxicating Liquors: nuisance: abatement. Littleton v. Fritz, \ 65 Iowa, 488, followed.</p>

<p>1. Criminal Law: perjury: oath to tax assessor: jurisdiction op assessor to administer: indictment. In an indictment for perjury, the jurisdiction and authority of the officer to administer the oath must be shown by proper averment; but this may be done either by an express averment that the officer had jurisdiction and authority, or by setting out such facts as make it judicially to appear that he had such authority and jurisdiction. In this case, where defendant was charged with perjury in making oath before the tax assessor, held that, upon the averment in the indictment that the assessor “ was legally authorized and empowered ” to administer the oath to defendant, the facts essential to his jurisdiction and authority to administer it might be shown, and that the indictment in that respect was sufficient.</p> <p>2. -: -: -: materiality op statements sworn to: indictment. In an indictment for perjury, the materiality of the alleged false testimony must be shown, either by express averment, or by the statement of such facts as show its materiality. And so, in an indictment for false swearing before a tax assessor in relation to the assessable property of defendant, it is necessary to allege that the property sought to be withheld from taxation by the false oath was assessable by the assessor who administered the oath; and, for want of such' allegations, the indictment in this case (see opinion) held bad on demurrer. '</p>

This is a controversy among the creditors of the defendant, T. B. Myers, an insolvent, as to the distribution of the proceeds of the sale of a stock of goods in the hands of a receiver, who, under the appointment of the court, took possession of the goods and disposed of them. The receiver was appointed on the petition of certain creditors.

Action in equity to establish plaintiff’s right to redeem certain real estate from a sale on execution., It is alleged in the petition that one Theodore Johnson purchased of defendants a certain 80-acre tract of land, and agreed to pay them therefor the sum of $1,320, and that he gave them therefor liis five promissory notes falling due at different times, and that they gave him a title-bond, whereby they bound themselves to convey said land to him on the payment of said…

This is an action in equity, by wbicli the plaintiff seeks to cancel a tax deed for 40 acres of land.

The plaintiff furnished lumber for the erection of certain buildings which the defendant Goble built for the defendant Davison. The plaintiff brings this action to establish a mechanic's lien upon the premises, and he also asks for a judgment for the amount due him against the defendants Wright and Carleton, who became guarantors for Goble for the performance of his contract.

' The defendant entered into a contract with tlie plaintiffs to deliver to them 9,000 bushels of corn. The plaintiffs concede that he delivered to tliein 7,532 3-7 busliels, but aver that he delivered only that amount, and failed to deliver the balance called for by the contract, to-wit, 1,467 4-7 bushels, and they bring this action for damages.

Judgment having been rendered against the appellant, and the amount in controversy being less than $100, certain questions have been certified for the determination of the supreme court.

The plaintiff seeks by this action to recover the value of a horse, which he claims was killed by falling into a sewer, which was negligently constructed and negligently allowed to become out of repair by the defendant. There was a trial by jury, which resulted .in a verdict and judgment for the plaintiff. Defendant appeals.

<p> Appeal from Clay Circuit Court. </p> <p>The facts are stated in tbe opinion.</p>

Tms is an action to recover certain money paid by the plaintiff as a tax-sale purchaser of certain real estate, which it is alleged was sold to it by mistake, the taxes thereon having been previously paid. There was a demurrer to the petition, which was overruled, and, the defendant failing to answer, judgment was rendered for the plaintiff. Defendant appeals.

This is an action to recover double tlie value of two hogs, the property of the plaintiff, which were killed by a train of cars on defendant’s railroad, at a point where it had the right to fence its road, but had not done so. Upon a trial of the case a judgment was rendered for the plaintiff, and defendant appeals.

The defendant is a corporation existing and doing business under the laws of Iowa. The plaintiff, in her petition, claimed that defendant obligated itself to pay her $2,000, as part of a beneficiary fund, upon the death of David Underwood. Trial to the court, judgment for the plaintiff, and defendant appeals.

<p> Appeal from Cerro Gordo District Court. </p> <p>This is an action of certiorari, by which plaintiff sought in the court below to test the legality of certain criminal proceedings before a justice of the peace. A demurrer to the petition was sustained, and plaintiff appeals.</p>

<p> Appeal from Cedar District Court. </p> <p>Action upon a policy op pire insurance. The defendant, for answer, pleaded certain verbal representations, which it alleged were false and fraudulent. It also pleaded that the plaintiff failed to make preliminary proof as required, and pleaded some other matters. It did not set out a copy of any application or representation, nor show that any copy was attached to or indorsed upon the policy. The plaintiff demurred to six divisions of the answer, in some of which were- set up the alleged false and. fraudulent representations; the demurrer being based upon the ground that no copy thereof had been attached to or indorsed upon the policy. The court overruled the demurrer, and, the plaintiff electing to stand upon his demurrer, judgment was rendered against him for costs. The plaintiff appeals.</p>

The indictment in the case charged that “ Calvin Ormiston, David Ormiston and Charles Bramer did wickedly and maliciously conspire together with intent wrongfully to injure the person and character of one Charles Blanchard, and to assault the said Charles Blanchard, with the felonious intent to inflict upon him a great bodily injury, in violation of law; and in pursuance of said conspiring together said defendants did, in the night-time, feloniously decoy said Charles…

This is an appeal by tbe intervenors from an order of tbe district court, approving the final report of a receiver appointed in tbe main case, and allowing bis account.

<p>1, Railroads: throwing cars together on side-track: injury to person unloading car: NEGLIGENCE. The plaintiff was a teamster who was engaged at the time in loading lumber, owned by his employer, upon his wagon from a oar standing on one of several side-tracks. He had warning of an approaching engine, but not of an approaching car, and he did not know on what track the engine was approaching. With a view of protecting himself and his team from possible danger, which, however, he had no reason to think imminent, he undertook to dismount from the car, and, in doing so, placed his left foot upon a link which projected from the draw-head of a car standing on the same track and near to the car which he was unloading. Just then a car, of whose approach plaintiff had no notice, was thrown against the one on the link of which his left foot was resting, and it was thrown against the-car from which he was dismounting, crushing his foot between the draw-heads of the two cars. Under all the circumstances of the case, (see opinion,) held (1) that it could not be said as a matter of law that plaintiff was negligent in attempting to dismount when he did. (2) That, since plaintiff was rightfully where he was, and since the car was placed where it was for the purpose of unloading, and since, even if defendant’s employes did not know that plaintiff was there, they had reason to anticipate that someone might be there, it was negligence on their part thus to throw the car back, as they did, upon others standing upon the sidetrack for the purpose of unloading.</p> <p>: imruted negligence. In such case the negli2. gence of plaintiff’s son, eleven years old, who was on the wagon and saw the car coming, but failed to notify his father of the fact, could not be imputed to the father.</p> <p>3. -: -:-: right to unload: freight not paid. In such case, the plaintiff was not a trespasser on account of the fact that the freight had not been paid; since it appears that the defendant had waived its lien for freight.</p> <p>4. Pleading: redundant averments: proof: instructions. Where the petition contains redundant averments, it is not necessary for the plaintiff to prove them, nor for the court to instruct as to them.</p> <p>5.-:-:-: instructions reviewed and approved. In the second, third and fourth divisions of the opinion, the instructions given by the court are reviewed in the light of appellant’s criticisms, and held correct. See opinion.</p>

<p>1. Attachment: whit against firm: seizure of property of partner: action on bond. Where an action in attachment was brought against a firm arid against the individual members thereof, but the bond which plaintiff filed ran to the firm alone, and not to the individual members, and the clerk, following the bond, issued the writ against the property of the firm only, but the sheriff thereunder seized the individual property of one of the members, held that such seizure was not warranted by the writ, and that an action for trespass might be maintained therefor, but that the partner whose property was so seized could not maintain an action on the attachment bond on account of the damage done him by such seizure, — the bond being only for the security of the firm against the wrongful suing out of the attachment, and not to secure others against the tortious acts of the sheriff in levying the writ.</p>

On the twenty-sixth day of March, 1883, J. S. Jones made an assignment of bis property to Timothy Brown, Esq., for the benefit of his creditors. Before making the assignment Jones was in business as a merchant, and the only property received by the assignee was the stock of merchandise which Jones had on hand, and the fixtures in the store-rooms occupied by him while in the business.

<p>1. Appeal to Supreme Court: appellant without interest: appeal dismissed. Where it appears from the record that one of the appellants has no interest in the controversy, the appeal as to him will be dismissed.</p> <p>2. -: taken too late: appeal dismissed. Where an appeal is taken more than six months after the date of the orders appealed from, the appeal will be dismissed.</p> <p>3. Decree by Default: irregularity in setting aside cured by subsequent hearing. If it was irregular and illegal to set aside a decree by default against defendant in this case, and to grant a new trial, after the term at which the decree was rendered, and without notice to the plaintiff, yet, since it appears that plaintiff afterwards made and fully argued an elaborate motion to the court to set aside the order vacating the decree and granting a new trial, and the parties and the facts were then all before the court, and the court, being thus advised, refused to vacate the order setting aside the decree, held that this was as fair an adjudication of-the matter as if plaintifE had been brought into court in the first instance, and that, the adjudication being itself right, he has no ground for complaint in this court.</p>

<p> Proceeding tipon a Writ of Habeas Corpus. </p>

<p> Appeal from Plymouth District Cowrt. </p> <p>Defendants are the keepers of a hotel, and plaintiff was a guest at their bouse, and while there contracted the small-pox. She brought this action to recover damages sustained by her in consequence of the sickness caused by said disease. She alleged in her petition that defendants represented to her that their hotel was a desirable place for guests, and that it was free from small-pox, and that there was no person in said hotel who was infected with that disease, and that, relying upon the truth of these representations, she consented to become a guest at said hotel. But she alleges that the representations were false, and were known by defendants to he false when they made them, and that the disease was then in the hotel, and that there was a person then in the house who was afflicted with the disease. These allegations are all denied by the defendants in their answer. There was a verdict and jndgment for plaintiff, and defendants appeal.</p>

<p>1. Tax Sale and Deed: tax paid before sale: deed invalid: evidence. Action to set aside a tax deed on the ground that the tax was paid before the sale; and, upon consideration of the evidence, (see opinion,) held that the prior payment of the tax was established.</p> <p>2. New Trial: newly-discovered evidence: insufficient showing. Where a new trial was asked on the ground of newly-discovered evidence, but it was not shown that the defendants did not have knowledge of the newly-discovered facts at the time of the first trial, held that the motion , was properly overruled, though it was shown that they were non-residents of the state, and the preparation of the case devolved exclusively upon their attorneys, and that one of the attorneys had no knowledge of the alleged new facts.</p> <p>3. -: -: CHARACTER OF EVIDENCE insufficient. A new trial should not be granted upon the ground of newly-discovered evidence, when such evidence, if admitted, could not change the result.</p> <p>4. Tax- Sale and Deed: tax paid before sale : payment of subsequent TAXES BY PURCHASER: DEED SET ASIDE IN EQUITY: REIMBURSEMENT of purchaser: statute of limitations. Where land was sold for taxes which had before been paid, and the tax deed taken pursuant to the sale was therefore invalid, but the owner of the land allowed the tax purchaser, in good faith, to pay the taxes on the land for more than twenty years, and then called.him into a court of equity, where his invalid tax title was set aside, held (1) that the purchaser was entitled to judgment against the owner of the land for all the subsequent taxes paid by him, with six per cent interest on each payment from the date thereof, and to have the judgment made a lien on the land; and (2) that the statute of limitations had no application to the case, since the right to be reimbursed was a mere equity incidental to the relief asked by and granted to plaintiff. Thode v. Spofford, 65 Iowa, 294, distinguished.</p>

<p> Appeal from Muscatine District Court. </p> <p>Action to recover for personal injuries sustained by plaintiff by falling into a scuttle-bole constructed by defendant in a side-walk of a street upon which a building owned by him was erected. A judgment was rendered upon a verdict for plaintiff. Defendant appeals.</p>

<p>1. Assignment of Error: what is sufficient. Where a motion was based, on a single ground, and the assignment of error was that the motion was erroneously sustained, the assignment was sufficiently specific.</p> <p>2. Appeal from Justices’ Courts: jurisdiction: amount in controversy. In determining the jurisdiction of the circuit court to entertain an appeal from a justice’s court, as based on the amount in controversy, that amount is to be found from the pleadings in the case. The judgment rendered by the justice, and the costs made before him, have nothing to do with the matter. Lundak v. C. & N. W. R’y Co., 65 Iowa, 473, and Perry v. Conger, Id., 583, followed.</p>

<p>1. Contract: construction: purchase. The contract set out in the opinion held not to be a contract of purchase, or of agreement to purchase.</p> <p>2. Assignment of Errors: not sufficiently specific. Where a motion is based upon different grounds, it is insufficient to assign as error simply that the court overruled the motion.</p> <p>3. --: evidence wanting. An assignment of error, that “tlie verdict is contrary to the law and the evidence,” cannot be considered, where the abstract does not purport to contain all the evidence.</p>

The plaintiff, by the proceedings in this case, claims that on the twenty-sixth day of October, 1877, be was tbe owner of a bouse and lot in tbe city of Crestón, and that on that day be borrowed of tbe defendant tbe sum of $600, and, to secure tbe payment of said sum, be conveyed said bouse and lot to tbe defendant by a general warranty deed, and that on tbe same day tbe defendant executed to tbe plaintiff a contract in writing, by which be bound himsplf to reeonvey tbe…

This is an action for a personal injury. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals. •

Action in equity to set aside an administrator’s sale of real estate. There was a decree for the plaintiffs. The defendant appeals.

Plaintiff instituted an action against one J. P. Creager on a promissory note given by him. Judgment was rendered in said action in plaintiff’s favor for $2,034.28. An attachment was sued out in the cause, and A. J. Crittenden was garnished thereon as a supposed debtor of the defendant.

On the twenty-fourth day of June, 1882,;David Dows & Go. caused an attachment to be issued against Grant & Johnston, and thereon a'large amount of personal and real property was attached as the property of Grant & Johnston.

The defendant was convicted of a misdemeanor in violating an ordinance of the town of State Center, and was adjudged to pay a fine of $25. Erom the judgment he appeals to this court.

TWt plaintiff seeks by tbis action to recover damages of the defendant for composing and publishing an alleged libel concerning the plaintiff. A jury ivas impaneled for the trial of the cause, and the plaintiff introduced his evidence in support of his cause of action, whereupon the defendant moved the court to dismiss the action, upon the ground, among others, that there was an entire failure of proof on the part of the plaintiff. The motion was sustained.

Action commenced before a justice of tbe peace to recover $35 for tbe services of an attorney at law. An appeal to the circuit court was taken by tbe defendant, and was dismissed on tbe ground that tbe amount in controvery was less tlian $25.. Defendant now appeals to this court.

This is an action in equity to restrain defendant and its officers from interfering with plaintiffs in their work of grading and filling certain lots belonging to them. The district court rendered judgment in favor of plaintiffs. Defendant appeals.

Action to recover for personal injuries sustained by plaintiff’s wife, by reason of .a fall caused by a defective sidewalk. .There was a judgment upon a verdict for plaintiff. Defendant appeals.

This is an action in equity, by which the plaintiff seeks to enjoin the defendant, who is marshal of the incorporated town of Kellerton, from removing certain platform scales from one of the streets of said town, in pursuance of an ordinance of the town council. There was a demurrer to the petition, which was sustained. Plaintiff appeals.

Plaintiff brought this action in justice’s court on a claim for §17. He recovered judgment for part of the amount, but the justice entered an order taxing the costs to him. The next day after the judgment and order were entered, plaintiff filed a motion to retax the costs to defendant.

The defendant was, on the thirtieth day of November, 1883, indicted for selling intoxicating liquors on the first day of May, 1883. It is alleged that the offense charged is the third; defendant having been twice before convicted of a like offense. A judgment upon a verdict of guilty was rendered, from which defendant appeals.

This is an action in equity involving the title to certain real estate in the city of Oskaloosa. There was a trial to the court, and a decree for the plaintiff. Defendant appeals.

Ad quod damnum proceedings to assess the damages sus- ' tained by plaintiff by reason of tbe appropriation of his land for tbe use of defendant’s railroad. Upon appeal to tbe circuit court, judgment upon a verdict for plaintiff was rendered. Defendant appeals.'

Action to recover for personal injuries sustained by plaintiff’s wife by reason of a buggy, in which she was riding, being backed by the horse off an embankment constituting the approach to a county bridge. It is alleged that the accident resulted from the dangerous condition of the bridge and approach, caused by negligence in constructing and maintaining them. There was a judgment on a verdict for plaintiff. Defendant appeals.

<p>1. Practice in Supreme Court: findings of trial court to sustain judgment. The findings of fact by the trial court in- this case are so indefinite and uncertain that the judgment based thereon cannot be sustained. For the facts, see opinion.</p>

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

Tuts is an action in equity, and involves a controversy between the parties growing out of a partnership in the cultivation of a certain farm. The cause was referred to a referee to try and determine and report to the. .court. The referee reported the facts and his conclusions of law. The plaintiff filed exceptions to the report, which were .heard by the court, and the report was modified, and a final decree was entered. Plaintiff' appeals.

Affeal from Harrison District Court. The petition states that the plaintiff “ is the owner and entitled to the immediate possession of the N. of N. E. ¿ and N. E. of N. W. ¿ section 15, township 78, range 44, and S. W. ¿ of N. E. ¿ of section 15, township 78, range 44, containing 160 acres, situated in Harrison county, Iowa.

Action for an injunction, and to foreclose a mortgage. A preliminary injunction was allowed, but the defendants filed an answer and moved to dissolve the injunction. The motion was sustained. From the order sustaining the motion the plaintiff appeals.

Action to set aside certain conveyances of land made by tbe defendant, William Perry, to bis wife in ber life-time, and also to determine tbe interest of tbe said Perry in tbe real estate of wbicli bis wife died seized, and to subject sucb interest to tbe payment of a judgment obtained by the plaintiff against him.

Action in clianeery to set aside tbe collection of a certain tax voted by the electors of the township of Alden to aid in the construction of the railrord of the defendant corporation. A demurrer to the petition was sustained by the district court, and thereupon the petition was dismissed. Plaintiffs appeal.

Action in chancery to enforce a mechanic’s lien for the value of lumber furnished by plaintiff, and used by defendants in the construction of mining shafts. A judgment was had for plaintiffs, but the abstract does not show that it was made a lien on defendant’s lands. Defendant appeals.

Action at law to recover upon an agreement to repay to plaintiff certain moneys by him paid upon a contract to purchase lands which, by the agreement, was canceled. There was a judgment upon a verdict for plaintiff. Defendant appeals.

Action in chancery to enforce a mechanic’s lien against a railroad company and a sub-contractor, for work in construcing a railroad. There was a judgment against plaintiff upon issues involved between him and the sub-contractor. The causeas to other defendants was continued. Plaintiff appeals.

- Ti-ie. petition states that Albert Bryant, deceased, was an employe of the defendant, and that the engine on which he was fireman was thrown from the track with great violence, without negligence on the part of the deceased, whereby he was instantly killed.

Plaintiff brought this action to recover damages for an. alleged trespass, committed by defendant in tearing down and removing a certain gate and fence which inclosed a tract of land belonging to plaintiff, and which was used by him as a pasture.

The defendant was indicted for the crime of an assault with intent to commit murder. IIe was tried, and convicted of an assault with intent to commit manslaughter, and .lie appeals.

<p>1. Mortgage: of remainder afterlife-estate: foreclosure: who pays taxes. W. and wife owned the whole interest in real estate in such a way that the wife had a life-estate, and the husband the remainder, coupled, however, with the condition that he should pay the taxes. He mortgaged his interest to plaintiff, and in an action to foreclose the mortgage the wife, being made a party, pleaded that her husband had failed to pay the taxes, and that the property had been sold for taxes, and that, to protect her life-estate, she had been compelled to redeem and to pay subsequent taxes, and asked that plaintiff be compelled to refund to her the money so paid. It appeared, also, that after the beginning of the suit the husband had quit-claimed his interest to the wife, thus vesting the fee-simple title in her. But the court decreed that plaintiff should reimburse the wife for taxes paid, as a condition to the issuance of an execution, and that plaintiff, as the purchaser at the sale, should pay future taxes; and the decree is approved and affirmed.</p>

This action involves the question of the proper distribution of the avails of a life insurance policy. The circuit' court held that the plaintiffs were entitled to the whole of the proceeds of the policy, and defendants appeal.

Action to set aside a conveyance of forty acres of land, as made in fraud of creditors. There was a decree for the plaintiff. The defendants appeal.

<p>1. Practice in Supreme Court: equity case: evidence wanting: JUDGMENT AFFIRMED.</p>

Action upon two promissory notes given for a binding harvester. At the time the harvester was sold to the defendant it was a wire binder.

Action to . recover damages sustained by the plaintiff because of her seduction by the defendant. Trial by jury. Judgment for the plaintiff, and the defendant appeals.

Appeal from Winneshiek District Court. Defendant was indicted and convicted of an assault with intent to commit a rape, and now appeals to this court.

Action'to recover compensation for the negotiation of the sale of certain lands owned by defendant, under a contract between the parties. There was a judgment upon a verdict for defendant. Plaintiff appeals.

The petition states that the “ plaintiff was employed by the defendant as a brakeman, * * * he being a minor, young ¿and inexperienced in the dangers incident to the operation of railroad trains, and being only seventeen years of age,” and while in such employment as brakeman on a freight train he was ordered by the conductor, * * * whose orders defendant required him to obey, “ to assist in making a flying switch, and to watch the uncoupling of the cars while he was on the…

Action to recover double damages for injuries to plaintiff’s horses, caused by their running upon defendant’s railroad track and into trestle work, through fright caused by an approaching engine. The accident occurred at a point where defendant had the.right to fence its railroad track. There was a judgment upon a verdict for plaintiff. Defendant appeals.

Action in equity to foreclose a meclianic’s lien. It is alleged' in the petition that plaintiff sold certain building materials to defendants Walrod & Son, which were used by them in the errection of a building on a lot owned by them in the town of Irwin; that a settlement of the account was afterwards had with them, by which it -was determined that the amount of the indebtedness was $354.21, for which amount they gave their promissory note due in fifty days, with ten per…

Action in chancery to enjoin defendant from selling, upon execution, certain land claimed by plaintiff as her homestead, and requiring him to summon a jury, as required by Code, § 2002, to determine her homestead rights in the land. A demurrer to the petition was sustained. Plaintiff appeals.

Action in chancery to avoid and cancel a lease, to recover possession of the land, and for general equitable relief. There was a decree for plaintiff. Defendants appeal. '

The plaintiffs claim to have purchased of the defendant, Caroline E. Ricketts, 120 acres of land in Plymouth county, and they bring this, their action in equity, to enforce specific performance of the alleged contract. The defendant denies the contract. The court dismissed the plaintiff’s petition, and they appeal.

Action to recover the value of property destroyed by a fire set out by an engine operated upon defendant’s railroad. There was a judgment, upon a verdict for plaintiff. Defendant appeals.

Plaintiffs brought this action to recover damages on account of certain alleged breaches by defendant of a contract entered into between defendant and Platt Smith, as attorney for certain judgment creditors of the Dubuque Southwestern Eailroad Company, on the twenty-eighth day of June, 1867.

The petition and amendment thereto state that the plaintiff and the defendant Henry Platner are husband and wife, and that they are living'separate and apart from each other; that the said defendant refuses to contribute to the support of the plaintiff and her children, and she asks that she be allowed alimony for their support. She does not ask for a divorce.

Appeals from Des Moines Circuit Court. Actions at law. Judgment for defendant, and plaintiffs appeal. The facts are stated in the opinion.

This is an action of replevin, in which the plaintiff claims to be the owner of certain store-goods and merchandise, which the defendant held as sheriff upon a writ of attachment, at the suit of a creditor of one Salisbury. The plaintiff’s claim is founded upon three chattel mortgages executed by said Salisbury, and possession of the goods under said mortgages.

Appeals from Monroe District Court. These cases involve substantially the same questions, and they will be disposed of in one opinion.

<p>1. Contract: lightning-rods : fraud : oral represent ations merged in writing: instance. All oral representations and' inducements which precede or are contemporaneous with a written contract are , merged therein, unless they amount to such fraud as avoids the contract. So, where the agent of a lightning-rod company stated to defendant that he was acquainted with the cost of lightning-rods, and that it would cost about thirty dollars to properly place rods on his buildings, but a written contract was entered into and signed by defendant for placing rods on his buildings at a certain price per foot, and the cost under the contract amounted to much more than thirty dollars, held that defendant was bound by the terms of the written contract.</p> <p>2.--:--:---: negligence in signing writing. Where one negligently signs a written contract without tailing the precaution to read it or have it read, he is bound by its terms, and the courts can grant him no relief, if by such negligence he is defrauded.</p>

Plaintiff brought this action to recover certain premiums paid to defendant by plaintiff’s testate on a life insurance policy. . The circuit court sustained a demurrer to the petition, and, plaintiff’ declining to amend, judgment was entered dismissing the cause, from which she appeals.

This is a controversy respecting the right of the plaintiff to vacate part of the plat of an addition to Iowa City. The plaintiff claimed the right to vacate two blocks, and the streets and alleys through the same, and by a written instrument executed, acknowledged and recorded, he declared the same vacated. The defendant, by its street commissioner, proceeded to open up a street between said two blocks.

This is a proceeding instituted in the name of the city of Newton and D. Pinch, street commissioner of the city, to compel the defendant to repair a crossing where one of the streets of the city crosses the defendant’s road. Judgment was rendered for the plaintiffs, and the defendant appeals.

Action to recover of the defendant for certain goods sold and delivered to one Buchanan, for which the defendant bound himself to pay, as the plaintiffs claim. Trial by jury, verdict for defendant, and judgment. The plain tiffs appeal.

<p>1. Criminal Law: waiver of jury: conviction illegal. One indicted for a felony cannot waive a trial by jury, and a conviction without a jury is illegal. -State v. Carman, 63 Iowa, 130, followed.</p>

Action for damages on account of a personal injury sustained by plaintiff while traveling on one of the streets of the defendant city, and which was occasioned, as is alleged, by a defect in said street. There was a verdict and judgment for defendant, and plaintiff appeals.

Appellants were garnished on execution, as supposed debtors of S. A. Broadwell, against whom plaintiff had obtained a judgment in the circuit court of Harrison county. They appeared and answered, denying any indebtedness to Broadwell, but admitted that they had received a note for $315, given by one Silsby, for certain property belonging to Broadwell, which he had purchased, and that they had received and appropriated the proceeds of said note.

Action to recovery for a personal injury. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

This is an action to recover damages, which the plaintiff alleges he sustained by reason of the construction of a railroad track in a public street, opposite to a certain city lot owned by him. There was a trial by j ary, which resulted in a verdict and judgment for the plaintiff for $300. Defendant appeals.

Action to correct a desci’iption in a mortgage, and to foreclose the same. The defendant Spillman was made a party as claiming an interest in or lien upon the land; but the plaintiff avers that whatever interest in or lien upon the land Spillman may have is inferior to the plaintiff’s mortgage. The court sustained the plaintiff’s claim of priority as to forty acres of the land, and denied it as to eighty acres. Both parties appeal; the plaintiff perfecting his appeal first.

<p> Appeal from Audubon District Court. </p> <p>Action to foreclose a mortgage. The plaintiff and the defendants, Jones, Dickey & Oo. appeal.</p>

Action upon a promissory note for $800. The defendant admits the execution of the note, but avers that he paid one-half of the note in money, and gave a note for $400 for the balance. There was a trial.to a jury, and verdict and judgment were rendered for the defendant. The plaintiff appeals.

In September, 1875, one J. M. Shinn, being the owner of a, town lot in Crestón, mortgaged the same to II. P. Chapman, to secure the payment of $600. Afterwards Shinn mortgaged the lot to one Howell to secure the payment of certain money. In May, 1876, Howell indorsed the note secured by the said second mortgage to one Piggott by a blank indorsement, and at the same time delivered to Piggott the mortgage securing the same. Chapman commenced suit to foreclose his mortgage.

This action was commenced in 1875 to recover damages for an alleged breach in the convenant against incumbrances in a deed to a lot iu the town of Buena Yista, Clayton county. The incumbrance complained of consisted of a railroad, which was built and maintained across a portion of the lot. The defendants by an answer and cross-bill claimed damages of tbe plaintiffs for the breach of the convenant against incumbrancee in a deed to forty acres of land.

<p>1. Township Trustees as Board of Health: delegation of power to employ physician : ratification. A township board, of health cannot delegate its statutory power to employ a physician to a committee, none of whom are members of the board; nor can the members of the board, by their separate acts and declarations, ratify the employment of a physician by such committee. Such ratification, in order to bind the county to pay for the physician’s services, should be made by the board of health, acting as a body, before the services are performed. See case cited in opinion.</p>

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.

This is a proceeding under the statute to establish a lost corner. Miller’s Code, 81. A commissioner was appointed, who made a survey, took evidence and made a report. The defendants filed objections to the report and moved to set it aside.

Defendant is a manufacturer of mill-machinery, and it sold to the .Grundy County Mill Company the machinery for a mill. Plaintiff acted as the agent of the Grundy County Company in making the purchase, and he alleges that defendant agreed to pay him a commission of two hundred and-seventy-one dollars on said purchase, and that it did pay him seventy-five dollars of the amount, and he brought this action to recover the balance thereof.

<p> Appeal from, Linn District.. Court. </p> <p>Action in equity to enjoin tlie levy of an execution on specific real estate, on the ground that the judgment had ceased to be a lien, and the jfiaintiff claimed that certain judgments belonging to him, although subsequent in point of time, were prior liens on the real estate. The defendant, in addition to controverting the claim of plaintiff, filed a cross-petition, in which she, in substance, claimed that she had an equitable mortgage or lien on the specific real estate, and she asked that the same be foreclosed. The court dismissed the cross-petition, and entered a decree that plaintiff had the prior lien on the real estate. The defendant Meriam appeals.</p>

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

The grand jury of Dubuque county presented an indictment against the defendant, accusing him of the crime of larceny from the person of another. He pleaded not guilty, was tried, convicted, and sentenced to a term of imprisonment in the penitentiary at Anamosa, and from this judgment he appeals.

Action to recover money paid for the defendant as his surety. Plaintiff moved the court for judgment on the pleadings, which was overruled, and he appeals.

This is an action of mandamus. There was a demurrer to the petition, which was sustained. Plaintiffs excepted to the ruling on the demurrer, and appeal from the judgment dismissing the action.

<p>1. Insane: rehearing by commissioners: appeal. A person found by the commissioners of insanity to be insane may appeal to the circuit court within ten days after the finding is filed; (Chap. 152, Laws of 1880;) but the statute does not provide for a rehearing before the commissioners; and from a refusal by them to grant a rehearing an appeaL will not lie.</p>

These two appeals involve the same question, and may be determined as one case. The question is whether a certain mortgage, executed by C. P. Bateman to Harrison Bruner, is of any validity. Tlie circuit court held that the mortgage was invalid, and Bruner appeals.

Ajpjpeal from Pollc Circuit Court. This is an action in equity, brought by plaintiff to cancel and set aside a deed, by which lie conveyed certain real estate in the city of Des Moines to defendant Amy A. Bucle, and to recover $500, which he paid defendant C. M. Buck in the same transaction in which said deed was given.

Appeal from Pottawattamie Circuit Court. Action in equity to quiet the title to real estate. Judgment for the plaintiff, and the defendant Cassady appeals.

Appeals from Pocahontas Circuit Cowrt Actions to set aside certain tax deeds. The court dismissed the plaintiffs’ petition, and they appeal.

These are actions in equity to set aside two mortgages given by defendant John Seney and wife to Charles Seney, and to subject the property covered thereby to the payment of certain judgments obtained by plaintiffs against John Seney and the firm of Combellick & Seney. The petitions in the several cases are substantially alike, and they were all submitted on the same evidence. There are two counts in each petition.

Action for the recovery of certain personal property. Plaintiff alleges in his petition that he is the owner of the property in question, and had it in possession, and that defendant took possession of it and claimed to hold it on an execution against one E. M. Clark.

<p>1. Promissory Note: genuineness or signature: how assailed: practice on appeal. The signature of a promissory note cannot be assailed on appeal to this court, either directly or collaterally, where no question of that bind was raised in the trial court.</p> <p>2. Fraudulent Conveyance: evidence: contradiction oe witness by prior expression oe opinion. Where a witness testified to facts tending to show that the conveyance in question was not fraudulent, it was not competent on cross-examination to asb him whether he had not stated the evening before that it was “ a swindle all the way through.”</p> <p>3. Evidence: secondary: contents or invoice bill. The invoice of a bill of goods is itself the best evidence of its contents, and secondary evidence thereof is not admissible without a foundation therefor being laid.</p> <p>4. Instructions: must be construed together. Each instruction must be considered as a whole, and in the light of the rest of the charge, and if, when so considered, the jury has not been misled, no reversal will be granted on account of the instructions.</p> <p>5. New Trial: misconduct or counsel: discretion or trial court respected on appeal. Whether a new trial should be granted on account of the alleged misconduct of counsel in argument to the jury is a question which lies very much in the discretion of the trial court; and the decision of that court will not be disturbed on appeal, unless it is made affirmatively to appear that that discretion has been abused to the prejudice of appellant.</p> <p>6. Verdict: conflicting evidence: no reversal. The evidence being in conflict, the verdict cannot be disturbed for want of support in the evidence.</p>

<p>1. Arbitration :• submission under statute: judgment on award! If parties design to ask the aid of the courts for judgment upon an award of arbitrators, the agreement to submit to arbitrators must specify the court in which the judgment is to be rendered, (Code, 8 3417,) and must in other respects conform to the requirements of the statute.</p> <p>2. -: SUBMISSION AT COMMON law: AClttON ON AWARD: DEPARTURE prom agreement. Parties may, without complying with the statute, make such a submission to arbitrators, either by parol or in writing, as will be binding upon them; and in such case an action may be maintained on the award; (see cases cited in opinion;) and departures from the agreement, which in no manner affect the right of the parties, will not defeat the action.</p> <p>3. -:--: judgment on award: evidence to support on appeal. This court is not authorized to disturb a judgment in an action at law on a common law award, unless it is plainly and palpably unsupported by the evidence.</p>

<p> Appeal from Mitchell Circuit Court. </p> <p>This action was commenced in 1874. The plaintiff claimed of the defendant Thompson some <$275 damages for setting fire to and destroying certain stacks of wheat, the property of the plaintiff. The cause was aided by an attachment, which was levied upon certain property of the defendant. The defendants D. II. Saxton and I. F. Smith executed a bond as sureties under the statute, and the attached property was discharged and restored to the defendant. The case was twice tried in the court below, and twice reversed in this court. It was again tried in the court helow, and a judgment was rendered for the plaintiff, and against the sureties in said bond. From this judgment the sureties appeal.</p>

<p> Appeal from Cedar District Court. </p> <p>Action for money alleged to have been collected by defendants for plaintiff. The defendants denied that they collected as much as the plaintiff alleged, and set up two ■matters of counter-claim greatly exceeding the plaintiff’s claim. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendants appeal.</p>

<p> Appeal from Floyd Circuit Cou/rb. </p>

<p>1. Reference: exceptions to conclusions of law: appeal: record. Where exceptions were taken to the legal conclusions only of a report of referees, and not to the finding of facts, and the court overruled the exceptions and confirmed the report, and from such order an appeal was taken to this court, held that the evidence on which the findings of fact were based was not necessary to enable this court to determine the only question raised by the appeal, to-wit, whether the admitted facts warranted the legal conclusions which the referees and the court deduced therefrom.</p> <p>2. Homestead: what exempt as: dwelling and business rooms combined. Where the buildings on a city lot were used in part for the dwelling of the owner and his family, and in part for business.purposes, and the portions used for business exceeded $300 in value, held that the portions used for business were not exempt as appurtenant to the homestead, under § 1997 of the Code, and that such portions might be sold under execution .against the owner, together with such easements as were necessary to their proper use and enjoyment. Compare Rhodes v. McCormack, 4 Iowa, 368, and Mayfield v. Maasden, 50 Id., 517. For the particular facts of this case see opinion.</p>

<p> Appeal from Harrison District Court. </p> <p>The defendant was indicted for an assault with intent to murder. He was tried, and convicted of the crime charged, and he appeals.</p>

<p>1. Mechanic’s Lien; upon improvements on another’s land. A person who wrongfully makes improvements on another’s land cannot defeat a mechanic’s lien on the improvements by showing that he had no right to enter upon the land; neither can a purchaser from him of the improvements.</p> <p>2. -: UPON IMPROVEMENTS, WITHOUT CONTRACT WITH OWNER ON pee. Under § § 2180 and 2136 of Miller’s Code, a right to a lien on improvements may exist without any contract with the owner of the fee, but by contract with the owner of the improvements.</p>

Action to recover for cattle killed by one of defendant’s trains. Trial by jury; verdict for defendant; and tbe plaintiff appeals. .

Action to recover damages sustained by the plaintiff by reason of a defective cross-walk constructed and maintained by the appellant. Trial by jury, judgment for the plaintiff, and the defendant appeals.

' Action to quiet title to certain land in Kossutb comity. The plaintiffs, George Smith and William Smith, show in their petition that one George Smith, of the state of Illinois, died seized of the land; that the plaintiffs became devisees of the land under the will of George Smith, deceased; that one Hunt and one Cowdry were appointed executors in the will; that the testator, by his will, authorized and empowered them to sell and convey, for such prices and on such terms as…

<p>1. Attorney’s Fees: recovery of on contract providing for same: time of filing affidavit. In order to recover an attorney’s fee on a note or contract providing therefor, the affidavit required by § 3, chap. 185, Laws of 1880, must be filed when the original petition in the case is filed.</p> <p>Adams, J., dissenting.</p>

Action to recover for cider sold and delivered, and for cash paid for printing, and for freight on the cider. The defendant denied the allegations of the petition, and pleaded that the cider was purchased in Council Bluffs, and was guarantied in writing to give satisfaction; that defendants relied thereon; and that the cider was of poor equality, unsalable, and not of the character guarantied. Trial by jury, verdict for defendants, and judgment thereon. The plaintiffs appeal.

Action to foreclose a mortgage executed by Wenzel Taylor to his wife, Barbara, and by her assigned to the plaintiff. The defendants were made parties on the ground that they had liens on the mortgaged property which were junior to the plaintiff’s lien. The circuit court adjudged that the lien of the defendants was superior to the mortgage, and the plaintiff appeals.

This is an action in equity to set aside a sheriff’s sale of certain lands, upon the ground that the sale was made in violation of plaintiff’s homestead rights in part of the premises. At the March term, 1884, of the district court, the cause was continued, and it was ordered that the evidence in the case should be taken in the form of depositions. At the November term, 1884, the plaintiff, having failed to take any depositions, moved the court for a continuance of the cause.

This suit involves the right of the plaintiff to a homestead exemption of a house and town lot. The circuit court held that the property was not exempt as a homestead, and plaintiff appeals. The facts appear in the opinion.

The defendant was convicted upon a charge of stealing a horse from one Buchanan, in Marshall county, and sentenced to imprisonment in the penitentiary for two years. He appeals.

The defendant was indicted for the crime of uttering and publishing a forged note. Yerdict and judgment were rendered against him, and he appeals to this court.

<p>1. Insurance: cancellation op policyby election op the assured: ASSIGNMENT OP UNEARNED PREMIUMS: RECOVERY OP BY ASSIGNEE: FORFEITURE OP POLICY BY ADDITIONAL INSURANCE. Defendant issued to one M. two policies of insurance for five years, each stipulating against other insurance, and for cancellation at his pleasure. After fifteen months AT. was induced to have the property insured in another company, and, to avoid the forfeiture of the said policies, he concluded to elect to have them canceled, and to demand of the defendant the unearned premiums, under chap. 39, Laws of 1878. But he did not notify defendant of liis election, nor request of it a cancellation. He, however, assigned the policies to plaintiff, the agent of the other company, by a writing on each of them as follows: ‘ ‘ Dor value received, I hereby assign to C. H. Colby, Esq., the unearned premiums under this policy, also .this policy for cancellation, and authorize him to collect such unearned premium.” After plaintiff had insured the property in his company, he tendered the policies to defendant for cancellation, and demanded the unearned premiums thereon. Held (1) that M.’s election to have the policies canceled, and his assignment of them to plaintiff, without any notice or request to defendant, did not have the effect to terminate the contracts of indemnity contained therein, and create a liability on the part of defendant to refund the unearned premiums at that time; and (2) that if M.’s assignment could, under any circumstances, have the effect to transfer to plaintiff his right to unearned premiums, still, as plaintiff did not tender the policies for cancellation until after they had been forfeited by the additional insurance, he could not then recover such premiums, because the policies were defunct in law.</p>

Action in equity to subject certain real estate, the legal title to which is in Kathinka Gaylord, wife of E. S. Gaylord, to the payment of a judgment against her husband, her co-defendnat, on the ground that the real estate was conveyed to said ICathinka for the purpose of defrauding the creditors of her co-defendant. Judgment for the defendants, and the plaintiff appeals.

Defendant was indicted for murder in the first degree, and, upon trial, was convicted of an assault with intent to do a great bodily injury, and from a judgment upon this conviction appeals to this court.

At the time of intestate’s death lie was in the employment of defendant as an engineer, operating a locomotive running upon defendant’s road. The injuries resulting in his death were received while engaged in such employment. There was a judgment upon a verdict for plaintiff. Defendant appeals.

Action in chancery to foreclose a mortgage. There was a decree granting the relief prayed for in the petition. Defendant Mun'zenmaier appeals.

Action in chancery to subject certain real estate to a judgment recovered by plaintiff againt D. G. McLean. There was a decree in the court below granting the relief prayed for in plaintiff’s petition. Defendant appeals.

<p> Appeal from Dallas Circuit Comt. </p> <p>Action to recover for personal injuries sustained by plaintiff while in the employment of defendant as a brakeman. There was a judgment upon a verdict for plaintiff. Defendant appeals. •</p>

<p>1. Appeal to Supreme Court: timely notice to clerk necessary. An appeal to this court cannot be maintained unless notice of the appeal is served on the clerk of the court below within the time prescribed by statute.</p> <p>2. -: WAIVER OP STATUTORY NOTICE BY APPEARANCE, IN APPELLATE court: practice. A failure to serve notice of an appeal to this court upontheclerk of the trial court within the time required by thestatute is not waived by the appearance of the appellee in this court, and the filing of papers relating to the merits of the case; especially when such appearance is made before the expiration of the time allowed for completing such service. On the other hand, motions to dismiss for such defects are frequently submitted in this court with causes presented upon their merits.</p> <p>3. -: notice op: error in: correction by lower court. A notice of appeal to this court should be filed with the clerk below, and it is one of the original papers, and becomes a part of the record in that court; and it is subject to correction, on motion, in that court, within the time prescribed by statute. Code, § 3156.</p>

Action in chancery to enjoin defendants from entering upon certain property owned by plaintiff, and from interfering with her possession thereof. There was a decree entered by the district court, granting the relief prayed for in the petition. Defendants appeal.

<p>1. Railroads: right op way under deed: right to use sand prom right op way. Plaintiff conveyed to defendant by a quit-claim deed a “right of way” over certain land, “for all purposes connected with the construction, use and occupation of said railway.” Held that the deed did not confer upon defendant the right to take sand from the right of way to construct a round-house, because such use of the land was not included in the purpose for which the land was granted, as shown by the terms of the deed. On the other hand, held that, as the deed con- # veyed an easement only, for certain well defined purposes, the plaintiff might take sand from the right of way, so long as he did not interfere with such uses of the land by defendant as were contemplated in the deed. See opinion for an elaborate argument of the ease upon the authorities by Beck, Ch. J., and for a statement of the views of Roth-rock J., concurring.</p> <p>2. Evidence; admission op: error without prejudice. The admission of incompetent evidence to prove what is admitted by the pleadings is error without prejudice.</p> <p>S. Railroads: destruction op meadow by negligent pire: measure op damages. Where the evidence tended to show that plaintiff’s meadow was so injured by a tire negligently set out by defendant that the roots of the grass were destroyed, so that the meadow would not produce grass for mowing, held that the court properly instructed the jury that plaintiff’s measure of damages was the cost of restoring the meadow to as good a condition as it was in before the fire.</p>

<p>1. Tax Sale and Deed: purchase by agent oe land-owner: agency not established. TKe question in this case was whether plaintiff’s tax title was invalid on the ground that plaintiff’s purchase at tax sale was made while plaintiff was defendant’s agent, charged with the duty of protecting defendant’s interests in the premises; but, upon consideration of the evidence, held that, while plaintiff’s cashier was, in his personal capacity, and not as cashier, defendant’s agent, plaintiff was not such agent, — there being no proof of an express contract of agency on its part, nor of any circumstances from, which such contract could be presumed or implied. For facts see opinion.</p>

Plaintiff brought this action to recover the value of a horse which he placed in defendant’s charge to be cared for and fed for a consideration, and which he alleges was hilled through defendant’s negligence. There was a verdict and judgment for plaintiff, and defendant appeals.

<p>1. Attachment: discovery of property by examination of defendant: jurisdiction: evidence. A defendant in attachment maybe compelled to appear before a judge and give information concerning his property, under § 2968 of the Code, whenever the necessary facts required by said section are made to appear by the affidavit of the plaintiff. No other evidence is required of those facts.</p> <p>2. Practice in Supreme Court: contradiction of judge's certificate to the evidence. Where a judge makes a sufficient authentication of the evidence in a case, it must be accepted in this court as conclusive, and cannot be contradicted by affidavits purporting to show irregularities in taking and preserving the evidence.</p> <p>3. Contempt: order of commitment for: preservation of evidence on which it is based. Where on a hearing before a judge a party is committed for a contempt, the judge must file and preserve a statement of the facts on which the order is founded; (Code, § 3497;) but where all the proceedings were taken down by a short-hand reporter, and his notes were extended and filed, and the transcript thus preserved contained a statement of all the necessary facts, held that this was a sufficient compliance with the statute.</p> <p>4.-: power of judge to punish for. A defendant in attachment, who is called before a judge to discover his property, under § 2968 of the Code, may, under § 349 of the Code, be punished by the judge for contempt in refusing to answer a proper question. The power to punish for such contempt is not confined to the courts.</p>

The defendant was. convicted of the crime of obtaining property under false pretenses. Judgment was rendered upon the verdict, and he appeals.

Action to foreclose a mortgage on real estate; and it is stated in tire petition that the defendant Weller has an interest in or lien on the mortgaged property which is junior and inferior to the mortgage. Weller answered the petition, and in substance pleaded that his interest in or lien on the premises was based on a mechanic’s lien which was prior and superior to the lien of the mortgage.

Action for damages alleged to have been sustained by the the plaintiff by reason of the taking of a certain mare from his possession. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendants appeal.

• Appeal from Houcard Circuit Court. Action in chancery to enforce certain liens, judgments and claims held by plaintiffs against property of the defendants Strother & Conklin. Other creditors, holders of judgments and liens, were made defendants. A receiver of-the property of the debtors was appointed. By the final decree no part of the proceeds of the property was appropriated to the payment of the claim held by plaintiffs. They appeal to this court.

Action in chancery to foreclose a mortgage. A judgment for the debt secured by the-mortgage was rendered against one of the mortgagors (there were two)„ and against the administrator of the other, who had died before the suit was commenced, but the circuit court refused to render a decree foreclosing the mortgage and declaring it a lien upon the land therein described. Plaintiff appeals.

Appeal from Delaware District Gowrt. Action to recover possession of land. There was a judgment for defendant in the court below. Plaintiff appeals.

<p>1. Criminal Law: resisting receiver in executing order of court: code, § 3960. The conclusion reached in the original opinion herein, reported in 64 Iowa, 729, to the effect that one who resists a receiver in the execution of an order of the court is indictable, under § 3960 of the Code, reconsidered in an elaborate argument by Beck, Ch. J., and adhered to by the court.</p> <p>2. -: RESISTING EXECUTION OF LEGAL ORDER: RIGHT OF PERSON having order to oall for aid. Because one charged with the execution of a legal order has no authority to call for aid in so doing, it does not follow that one who resists him is not guilty of a crime under § 3960 of the Code.</p> <p>3. Receiver: execution of legal order by: right to call for aid. Since it is a criminal offense to resist a receiver in executing a legal order, (Code, § 3960,) he may oppose such resistance with all the means at his command, and he may call on the sheriff, and through him may have the power of the county, to prevent the commission of the crime, and thus to enable him to execute the order.</p>

Acton in chancery to recover for taxes paid by plaintiff from 1864 to 1871, inclusive, upon certain lands owned by defendants, and to enforce a lien thereon for the amount so paid. There was a decree in the court below for plaintiff. Defendants appeal.

Action in chancery to foreclose and enforce a mechanic’s lien. There was a decree rendered by the district court granting the relief prayed for by plaintiffs, from which some of the defendants, who are lien holders upon the same land against which plaintiffs’ lien is enforced, appeal.

Action in chancery to enforce the specific performance of a contract to .convey land, and for other relief. A decree for specific performance was denied, but a judgment for damages in the sum of $1,300 was rendered against defendant. Other facts of the case appear in the opinion. Both parties appealed; the plaintiff first.

Defendant was indicted and convicted of forcibly rescuing one held in lawful custody under a criminal charge. He now appeals to this court.

<p> Appeal from Clayton District Court. </p> <p>Action at law to recover money deposited by plaintiff witli defendants. A demurrer to defendants’ answer was sustained, and, standing on their pleading, they appeal from a judgment for plaintiff.</p>

<p> Appeal from Jasper Circuit Court. </p> <p>Action in chancery to enforce the collection of a tax voted to the New Sharon, Coal Yalley & Eastern Nail way Company to aid in the construction of its railroad. The relief prayed for in the petition was granted by the final decree in the case. Defendants appeal.</p>

<p> Afjpeal from, Page District Co%t/rt. </p> <p>Action in chancery to set aside a judgment at law, and for a new trial of the issues in the case wherein.the judgment was rendered. A demurrer to the petition was sustained, and it was dismissed. Plaintiffs appeal.</p>

Action in chancery to set aside and declare void a judgment recovered by defendant Hunt against plaintiff, and to restrain the enforcement of an execution issued thereon. A demurrer to the petition was sustained, and, plaintiff declining to amend, it was dismissed. He now appeals to this court.

Action in chancery to quiet the title of certain land, and to restrain defendant from committing trespass thereon by cutting and removing wood and timber. There was a decree in the court below dismissing plaintiff’s petition, from which he appeals.

Plaintiffs brought this action in equity for the purpose of having a certain ordinance of the city of Burlington declared invalid. The circuit court, on a hearing of the case on its merits, dismissed the petition. Plaintiffs appeal.

The indictment is for murder in the second' degree, and charges that the defendant “ did willfully, maliciously and feloniously administer or cause to be taken by one Ella Vaughn, then and there being pregnant with child, a quantity of some noxious drug or substance * * * with the specific intent then and there to produce a miscarriage and abortion of said Ella Vaughn, * * * from the effects of and by reason of said drugs so administered the said Ella died.” In a second…

Appeal from O’Brien District Court. Action to recover damages for a libel. There was a judgment upon a verdict for plaintiffs. Defendant appeals.

Action by a wife against the keeper of a saloon, wherein intoxicating liquors were sold, to recover for injury which she sustained by reason of the habitual intoxication of her husband, caused' by the sale of liquors to him at defendant’s saloon. There was a judgment upon a verdict for plaintiff. Defendant appeals.

Action upon an account for goods used in the defendant’s family. There was a trial to the court, and judgment was rendered fo.r the defendant. The plaintiffs appeal.

Action in equity. The parties were partners, and this action was brought to settle the partnership accounts. From the decree the defendants appeal,

The plaintiffs each instituted a suit on a money demand against defendant, R. S. Kendall, and in each suit a writ of attachment was issued against the property of defendant. The sheriff made an attempt to levy said writs on a certain stock of goods which had formerly belonged to defendant, but which at the time were in possession of the intervenor.

Action to recover for an injury alleged to have been sustained through the negligence of the defendants in giving the plaintiff a large -and improper dose of belladonna. There was a trial to a jury, and verdict and judgment were rendered for the plaintiff. The defendants appeal.

This is an action in equity by which plaintiff seeks to redeem forty acres of land from a tax sale. There was a decree for the defendants, and the plaintiff appeals.

The plaintiff by this action seeks to enjoin the defendant Anderson, who is treasurer of Lee county, from distraining certain goods and merchandise for the purpose of collecting the state, county and other taxes thereon for the year 1884. There was a demurrer to the petition, which was sustained. Defendants appeal.

The plaintiff claims that, while passing along a sidewalk upon one of the streets of Mt. Ayr, she stepped upon a loose board in the walk and fell, and was thereby seriously and permanently injured.

Action to recover for personal injuries sustained by plaintiff from a fall, caused by her slipping into a hole in a sidewalk over which she was passing at the time. There was a verdict for plaintiff, and judgment thereon. Defendant appeals.

Action to recover damages for maliciously causing the levy of an execution on certain goods and chattels of the plaintiff. Trial by jury. Yerdict and judgment for .the plaintiff for $700. The defendant appeals.

Action on an official bond. Defendant McCully was clerk of the circuit court, and the other defendants are sureties on his official bond.

These are actions on a bond given by the defendants to the sheriff of Des Moines county, by which they bound themselves to-indemnify him against the ^damages which he might sustain in consequence of the seizure and sale of certain personal property on execution, issued on' a judgment in favor of defendants and against Sweney & Bell, and to pay any claimant of said property any damages which he might sustain in consequence of such seizure and sale of said property.

The defendant was convicted of murder in the first degree, and sentenced to confinement in the penitentiary for life, lie appeals to this court.

These cases were consolidated and tried together as involving the same question. The plaintiff' in each case seeks to foreclose a mortgage upon the S. W. J of the N. E. ^ of section 17, township 70, range 25, in Decatur county. The mortgages were executed by the defendant Bullard. He makes no defense. No one, indeed, contests the validity of either mortgage. In each case the plaintiff in the other case is made defendant with Bullard.

Action of forcible entry and detainer, commenced before a justice of the peace. Upon appeal to the circuit court judgment was rendered for the defendant, and the plaintiff appeals.

<p> .Appeal from O’Brien Bistriefi Court. </p>

What purported to be tbe last will of Jobn R. Parsons was filed in tbe circuit court, and plaintiffs, as proponents, asked that the same be established and admitted to probate. Tbe defendants, as contestants, objected to tbe admission of tbe proposed will to probate.