Volume 76 — Iowa Reports

— Hon. George W. Wakefield, Judge. The defendant is a corporation engaged in loaning money on real-estate security, and negotiating loans, buying and selling lands, investing in real estate, and receiving funds in trust, and investing the same. In June, 1885, the defendant made a loan of eight hundred dollars to one Wellman, and took from him, as security for the loan, a mortgage upon eighty acres of land in Woodbury county.

— Hon. James 1). Giffen, Judge. Plaintiff brought an action for the recovery of damages for the. injury to her means of support caused by the unlawful sale of intoxicating liquors to her husband by the defendant Benham. The property in which the business was carried on was owned by defendant Owen, and he was made a party, to the end that any judgment which should be recovered against Benham might be established asa lien on the property.

— Hon. Marcus Kavanagh, Judge. The defendants are the officers of a school district in Sac county, and this is an action of mandamus to compel them to levy and collect a tax to pay and satisfy a judgment recovered by the plaintiff against the school district. The defendants pleaded payment. Trial to the court and judgment for the defendants, and the plaintiff appeals.

— Hon. Josiah Given, Judge. Action to recover for services rendered by the assignors of plaintiff. There was a trial to the court and a judgment for plaintiff. The defendant appeals.

<p>Appeal from Crestón Superior Court. — How. George ■ P. Wilson, Judge.</p> <p>Action on a promissory note. Trial by the court. Judgment for defendants, and plaintiffs appeal.</p>

— Hon. J. H. Macomber, Judge. Defendant, who is sheriff of Ida county, levied certain executions, which were issued on judgments against C. L. Finley and Finley & Maxwell on a stock of merchandise. Plaintiff brought this action to recover the value of the goods, alleging that he was the owner of the same, and that neither Finley nor Finley & Maxwell had any interest in them.

— Hon. J. W. Harvey, Judge. This is an action in equity, by which the plaintiff demanded that the defendant be enjoined from breaking. down gates inclosing his land, and driving cattle thereon. There was. an answer to the petition, and a hearing had upon the merits, and a decree was entered for the plaintiff, and defendant appeals.

— Hon. J. H. Macomber, Judge. Oh the tenth day of October, 1884, the plaintiff and defendants, Philetns R. Hicks and Alma Hicks, made their promissory note, in favor of E. A. Richmond, for $262.50. To secure the payment of this note, Philetus R. and Alma Hicks executed a mortgage on the north half of the northwest quarter of section 21, township 86, range 32 ; and plaintiff joined with said defendants in executing a mortgage on the south half of said quarter section.

<p>1. Fraudulent Conveyance : valid except as to creditors. A fraudulent conveyance of real estate, as between the parties and all the world except creditors, is valid, and vests the title in the grantee. (See cases cited in opinion.)</p> <p>2. -: actions to SET aside : priority OF RIGHT. The creditor who first begins an action to set aside á fraudulent conveyance of land by his debtor obtains the first lien, even though another creditor, who begjns his action later, obtains the first judgment to set aside the conveyance.</p> <p>3.--:--:---: PURCHASE OF JUDGMENTS BY FRAUDULENT grantee : merger. After a fraudulent conveyance of land, certain actions were brought to subject the land to the payment of certain judgments against the grantor,' and these judgments were afterwards assigned to the grantee, but the actions were never prosecuted to a termination. Afterwards this action was begun by another judgment creditor of the grantor for the same purpose. Held that the judgments purchased by the fraudulent grantee did not merge in the legal title simply because he could not prosecute to judgment, against himself, the action to subject the land to them payment, and that a decree subjecting the land to the payment of the judgment sued on in this case was erroneous in not providing for the payment, first, of the judgments purchased by the grantee, which were prior liens on the land, and in no way tainted with the fraud in the conveyance. (See opinion for cases followed.) [Reed, J. dissenting. ]</p>

— Hon. W. F. Conrad, Judge. Action to obtain possession of and quiet the title to real estate. Trial to the court, judgment for the plaintiff, and defendants appeal.

— Hon. W. P. Conrad, Judge. On the thirty-first day of January, 1887, one B. P. Allen was appointed receiver of the Monarch Insurance Company, and qualified and entered upon the discharge of the duties required by the appointment. On the eighth day of the next month Allen resigned, and was succeeded by plaintiff. On the twenty-third day of May, 1887, the plaintiff filed his petition in this proceeding, entitling it as in the original action for the appointment of a receiver.

District Court. — Hon. J. H. Pbeston, Judge. The defendant is a life insurance company, organized under what is known as the “Assessment Plan.” On the eighth day of July, 1882, it issued a policy or certificate of membership, as it is denominated, to W. H. Hewitt, a resident of the city of Marion, in this state. On the morning of the fourteenth of July, 1882, the dead body of Hewitt was found in a ditch in the city of Omaha.

— Hon. D. J. Lenehan, Judge. This is an action at law to recover damages for the death of Edward C. Kuhns, which was caused by the derailment of a locomotive engine upon which he was a fireman in the employ of the defendant. There were several acts of negligence charged against the defendant, all of which were denied. A trial by jury resulted in a verdict and judgment for the plaintiff. Defendant appeals.

— Hon. W. P. Conrad, Judge. Plaintiff is a constable, and he brought this action against Polk county to recover fees for serving certain warrants of search and seizure issued by justices of the peace, under the statute for the suppression of intemperance.

— Hon. Dell Stuart, Judge. This action was brought on a policy of insurance to recover for a loss sustained by the burning of the property alleged to have been insured. There was a trial to the court and a judgment in favor of plaintiffs.

— Hon. H. E. Deemer, Judge. An indictment was returned by a grand jury of Pottawattamie county against E. D. Cross, accusing him of a public offense. , The venue of the cause was subsequently changed to Montgomery county, where it was tried. The district court ordered that the jury be kept together during the trial, and in pursuance of that order the jurors and the bailiff in charge of them were furnished meals during the trial by plaintiffs. On the trial Cross was acquitted.

<p>Appeal from Webster District Court. — IIon. John L. Stevens, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Larceny: obtaining garments from tailor by false pretense of intending to pay for them. Where the owner of goods parts with their possession without the purpose of parting with the property therein, and expects their return or disposition according to his direction, or expects payment for them to complete a sale thereof, the taking and conversion, with the felonious intent to deprive the owner of the goods, is larceny. So, if possession of the goods is obtained by a trick, artifice or false pretense, with the felonious intent on the part of accused to convert them to ]iis own use, he is guilty of larceny. Accordingly, held, in this case, that where defendant obtained from his tailor’s employe finished garments, upon the pretense that he would pay for them when he got to his room, whither he invited the employe to accompany him, but when he arrived at what he falsely represented to be his room, he, by a trick, escaped from the employe, taking the garments with him without paying for them, and disappeared, he was guilty of larceny.</p>

<p>Appeal from Mitchell District Court. — Hon. John B. Cleland, Judge.</p> <p>Indictment for seduction. Trial by jury; verdict, guilty ; and judgment. The defendant appeals,</p>

— How. George Carson, Judge. This is a controversy growing out of the settlement of the estate of Thomas Leacox.. The plaintiff is a son and heir of the deceased, and the defendant is the administrator of the estate. The administrator filed his report, and the plaintiff filed exceptions thereto. An issue was made up between the parties, and the cause was referred to a referee, who found the facts and conclusions of law, and reported in favor of the plaintiff.

— Hon. Cnarles H. Phelps, Judge. This is an action in equity to subject certain personal and real property, the title to which was vested in defendant Hawthorn by certain conveyances from his co-defendant Mahaffey, to the satisfaction of two judgments recovered by the plaintiffs against said Mahaffey.

— Hon. J. B. Cleland, Judge. Action in equity to recover certain real estate, or its value. After a trial on the merits, the district court rendered judgment in favor of defendants. The plaintiff appeals.

— Hon. J. J. Net, Judge. , Action of replevin to recover the possession of certain personal property. There was a judgment upon a verdict for plaintiffs. Defendant appeals.

— Hon. Josiah Given, Judge. The plaintiff was surety for the defendant upon a promissory note, and on the fourteenth day of December, 1886, paid the same, which then amounted to some $3,800. He brought this action to recover the sum so paid.

— IIon. Josiah Given, Judge. The defendant was tried before a justice of the peace on a charge of transporting intoxicating liquors without having a certificate from the auditor of the county authorizing him to engage in that business. He was found guilty, and upon an appeal to the district court he was again adjudged to be guilty. He appeals.

— Hon. Marcus Kavanagh, Judge. - Plaintiff, as assignee, brought this action to recover the amount of certain taxes which were paid by his assignor on a lot in the city of Des Moines, and which he alleges defendant was bound to pay by the terms of a lease under which he held possession of the lot. Defendant pleaded a contract of release. Plaintiff demurred to the answer, but the demurrer was overruled, and, judgment having been entered against him, he appeals.

— Hon. G-eorge Carson, Judge. Action for goods sold and delivered. There was a trial by the court, and, judgment being for defendant, plaintiffs appeal.

— Hon. Dell Stuart, Judge. The defendant was indicted for the crime of nuisance alleged to have been committed by the illegal sale of intoxicating liquors. There was a trial to a jury and a verdict and judgment, in favor of plaintiff. The defendant «appeal s.

II. E. Deemed, Judge. Action for the partition of real estate, and to set aside a mortgage. The relief asked was granted, and the defendant Bitzer appeals.

— Host. Chas. D. Leggett, Judge. Defendant was indicted and convicted of keeping a nuisance by maintaining a place for the sale of intoxicating liquors. He now appeals to this court.

Apppal from Tama District Court. — Hon. L. Gr. Kinne, Judge The defendants — three in number — were indicted for an assault with the intent to inflict a great bodily injury. Two of them were convicted; the other was acquitted. The defendants convicted appeal to this court.

— Hon. J. H. Henderson, Judge. Defendant appeals from tlie judgment of the district court which requires him to be imprisoned in the penitentiary at Fort Madison for the term of four years. The facts are stated in the opinion.

— Hon. J. M. Casey, Judge. Action at law to recover upon an account for merchandise. There was a trial to the court without a jury, and judgment was rendered for the plaintiffs for the amount claimed. Defendants appeal.

— Hon; C. T. Granger, Judge. This is a certiorari proceeding to test the validity of an order for the punishment of an alleged contempt of court.

<p>Appeal from Lucas District Court. — Hon. . Dell Stuart, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Executor: action to compel to qualify or renounce : accounting for property. One claiming to be an heir of the testator' sought in this action an order summoning a person named in the •will as executrix to appear and qualify within a prescribed time, or that she be-deemed to have surrendered the appointment, and that she be required to file an inventory. Held that the order was properly denied, because if, as the petition .alleges, she failed to qualify, as provided by law, there was a vacancy which the court .would fill upon proper application ; and if she had any of the property of the estate without having qualified as executrix, she should account for it to' the personal representative, and not to the court.</p>

— Hon. Lot Thomas, Judge. Action in equity to abate an alleged nuisance. The district court, on the hearing, dismissed the petition. Plaintiff appeals.

<p>Appeal from Des Moines District Court. — Hon. Chas. H. Phelps, Judge.</p> <p>Appeal from, an order of tlie district court refusing an injunction.</p>

— Hon. Heney Bank, Je,, Judge. This is an action upon an account for merchandise sold and delivered by the plaintiff to the Dodson & Hills Manufacturing Company, defendant. An attachment was issued upon the ground that the defendant was a non-resident of the state; and the Diamond Jo Line of steamers, a corporation, was garnished in the action, upon the claim or supposition that it had property in its possession belonging to the defendant, which was liable to attachment.

— Hon. J. M. Cásey, Judge. Action to restrain and for the abatement of an alleged liquor nuisance'. A demurrer to the answer was overruled, and judgment rendered for defendant. Plaintiff appeals.

— Hon. John W. Harvey, Judge. The plaintiff is the son and one of the heirs-at-law of John W. Harrow, deceased, and the defendant is the executor of the estate of said John. The plaintiff filed a claim against the estate, consisting of a note executed by Ms father, and also for work and labor performed by him under a contract with his father, and asked the same to be allowed as claims against the estate.

— Hon. G-eorge H. Carr, Judge. This is an action in equity to quiet in plaintiff the title to certain lands in Emmet county. Defendant in a cross-petition demanded the same relief. The •district court, on a final hearing, dismissed plaintiff’s petition, and entered judgment for defendant, quieting he title in him. Plaintiff appeals.

— Hon. George H. Carr, Judge. Action in equity to quiet title, to real estate. The district court entered judgment for plaintiff. Defendants appeal.

<p>Appeal from Wapello District Court. — Hon. Charles D. Leggett, Judge.</p> <p>This is an appeal by plaintiff from a judgment of the district court rendered upon an award of arbitrators.</p>

— Hon. Marcus Kavanagh, Judge. The defendant, was indicted and convicted for malicious threat. He now appeals to this court.

<p>Appeal from Monona District Court. — Hoar. O. H. Lewis, Judge.</p> <p>The facts are stated in the opinion.</p>

— Hon. Dell Stuart, Judge. Action to compel the defendant to execute and deliver to plaintiff a sheriff’s deed. A demurrer to the petition was sustained. Plaintiff refusing to further plead, judgment was rendered in favor of defendant for costs. Plaintiff appeals.

— Hon. C. H. Lewis, Judge. The defendant was indicted, tried and convicted' of maintaining a nuisance by unlawfully keeping and selling intoxicating liquors in a certain building. He appeals.

— Hon. Dell Stuart, Judge. Action at law to recover damages arising from false and fraudulent representations as to the ownership and title of certain lands, inducing plaintiffs to convey to defendants certain other lands in exchange for the land first named. There was a verdict and judgment for plaintiffs. Defendants appeal.

— IIon. R. C. Henry, Judge. Plaintiff seeks to subject lboney in the possession of the garnishee, which belongs to N. S. Young, to the payment of a judgment in favor of plaintiff and against N. Young. From a judgment rendered in favor of plaintiff the garnishee and N. S. Young appeal.

<p>Appeal from Adair District Court. — Hon. A. W. Wilkinson, Judge.</p> <p>The defendant was convicted of the crime of seduc-. tion, and now appeals to this court.</p>

<p>Appeal from Guthrie District Court. — Hon. J. II. Henderson, Judge.</p> <p>An information was filed charging the defendant with the violation of an ordinance of the town. • There was a trial before the mayor. The defendant was convicted, and appealed to the district court, "where there was a trial before a jury, and from the judgment entered on the verdict the defendant appeals.</p>

— Hon. R. C. Henry, Judge. Action at law to recover judgment upon a delivery-bond executed by tbe defendants for tbe release of certain personal property wbicb was attached in an action by tbe plaintiff against one A. W. Raymond. There was a trial by jury, and a verdict and judgment for tbe plaintiff. Defendants appeal.

— Hon. D. J. Lenehan, Judge. Action for partition of real estate. Demurrer to the petition, which was sustained, and the plaintiff' appeals.

<p>Appeal from Poweshiek District Court. — Hon. W. R. Lewis, Judge.</p> <p>Action to recover specific personal property. Judgment for the defendants, and plaintiff appeals.</p>

— IIon. John J. Ney, Judge. * ' Indictment charging the defendant with the larceny of- two horses. Yerdict, guilty, and judgment The defendant appeals.

— Hon. C. H. Lewis, Judge. This is an action at law upon three promissory notes. There was a trial by jury, and a verdict and judgment for the defendants. Plaintiff appeals.

— Hon. C. IT. Lewis, Judge. This is an action of replevin for twenty hogs. The plaintiff: claims the property by virtue of two chattel mortgages upon the same. The defendant is a constable, and seized the. hogs upon execution on a judgment against one Grlenn. There was a demurrer to the petition, which was overruled, and defendant appeals.. .

— Hon. O. W. Wakefield, Judge. Action to recover on the official bond of D. W. Apperle as superintendent of schools for Sioux county, for an alleged failure to perform official duties. A demurrer to the petition was sustained. Plaintiff electing to stand on its pleading, judgment was entered against it for costs.

— Hon. S. M. Weaver, Judge. Action in equity to quiet title to real estate. Both, parties ask affirmative relief. Judgment for plaiiitiff, and defendants appeal.

<p>Assignment: equitable : of certificate of purchase at sheriff’s SALE.- A former, owner of land, but whose rights therein had been extinguished, claimed that he had the right to redeem it from a foreclosure sale. P., the holder of the certificate of sale, made no objection, but could not find the certificate, but told him to go and pay the money to the clerk, which he did, andP. received the money and left the certificate, unassigned, with the clerk. Held that this was an equitable assignment of the certificate to the person paying the money, and entitled him to a sheriff’s deed at the expiration of the year for redemption.</p>

— Hon. John J. Net, Judge. Certain liquors claimed to be intoxicating were duly seized under legal process. P. C. Cummings appeared and claimed to be the o wner of such liquors. A trial was had before a j ustice of the peace, who found the liquors were not intoxicating, and ordered that they be returned to the claimant. An appeal to the district court was taken, and judgment was rendered for the defendant. The state appeals.

— Hon. C. II. Lewis, Judge. This is an action to recover tlie possession of certain lots in the town of Dunlap, upon the ground that the plaintiff is the owner thereof. It is conceded that the egal title is in the plaintiff, but the defendant claims that he is the equitable owner of part of the lots, by-purchase from the plaintiff, and full payment therefor. He disclaims having the possession of or any interest in the other lots.

<p>Appeal from Audubon District Cotort. — Hon. A. B. Thornell, Judge.</p> <p>The facts are stated in the opinion.</p>

— IIon. O. H. Lewis, Judge. Action to recover for money alleged to have been loaned, and for the value of personal property alleged to have been taken and used by defendant. There was a verdict and judgment for plaintiff, and defendant . appeals.

— Hon. J. M. Casey,' Judge. Action for the recovery of specific personal property. Plaintiff claimed to have purchased the property from James S. Lewis. Defendant Hardin is marshal of' the city of Keokuk. He seized the property under a writ of attachment issued by the superior court of Keokuk in an action in which defendant Younker whs plaintiff and said Lewis defendant.

— Hon. Marcus Kavanagi-i, Jr., Judge. Dependant was indicted, tried and convicted upon a charge of keeping a liquor nuisance, and he appeals.

— Hon. David Ryan, Judge. Action to recover for a binder- sold to defendant. There was a trial by jury and a verdict and judgment for plaintiffs. The defendant appeals.

— Hon. A. B. Thornell, Judge. Plaintiff brought an action on a written contract, of which the following is a copy: “$1,000. June 1, 1881. For value received, I hereby agree to pay to Mortimer Hunt, or order, the sum of one thousand dollars, with interest at eight per cent, per annum from the date of this note.

— Hon. Dell Stuart, Judge. Action to foreclose two equitable mortgages securing a promissory note executed by defendants. By the decree, after trial on tlxe merits, the relief prayed for, as against Gr. Gr. Seal, was granted, but refused as to the other defendant. The defendant Gr. Gr. Seal and plaintiff both appeal!

S. H. Fair all, Judge of the Eighth Judicial District. Action in chancery in the district court of Johnson county to enjoin defendants from publishing and enforcing a schedule of rates, or tariff of charges, for the transportation of property by the railroads of the state. A temporary injunction was allowed by the How. S. H. Faieall, judge of the district court, and a motion to dissolve it was overruled.

— Hon. J. H. Preston, Judge. Defendants, I. H.. Shaver, and others are manufacturers of crackers in Cedar Rapids. ■ On the sixth of October, 1886, they procured from plaintiff a policy of insurance for $2,500. Of that amount $525 was placed on the building used as a manufactory, $925 on the machinery and fixtures, and the residue on stock and materials used in the business and manufactured goods in the building.

Action in chancery to dissolve a partnership, and to settle its affairs. A decree to that effect was entered, and provision was made for the division of the assets of the firm. The costs incurred in the case, and the expenses made by the receiver who was appointed upon plaintiff’s application to take charge of the property and business of the firm, were directed by the decree to be paid out of the money in the hands of the receiver. Plaintiff appeals.

<p>Appeal: error must affirmatively appear. Where errors complained of do not appear in the record, this court cannot presume error, but must presume, in favor of the trial court, that no error occurred.</p>

Franklin District Court. — Hon. S. M. Weaver, Judge. Action to quiet the title of plaintiff in certain land, based upon a tax sale and deed. Defendants denied the validity of plaintiff’s title, and, in a cross-petition, asked to be allowed to redeem from the tax sale and deed. Upon a trial on the merits, plaintiff’s petition was dismissed and defendants were permitted to redeem as prayed for in the cross-bill.

Plaintiffs brought an action on an account for goods and merchandise sold to defendant. They sued out a writ of attachment, which was levied on certain real estate. Defendant moved to discharge the property from the levy, on the ground that it was exempt from seizure. The court sustained that motion, and the present appeal is from that order.

— Hour. S. II. Fairall, Judge. This is an action to recover damages which the plaintiff incurred by reason of a fall from an alleged defective and improperly constructed sidewalk.' There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals.

Action to foreclose a mortgage. The petition alleges that the property conveyed, through mistake, is misdescribed in the mortgage. Plaintiffs pray that the mortgage may be reformed, and the mistake. corrected. There was a decree granting the relief prayed for by plaintiff. One of the mortgagors and his wife, who joined in the execution of the mortgage, appeal.

— Hon. S. M. Weaver, Judge. Action for the specific performance of a contract. There was a decree granting the relief prayed for by plaintiff. Defendants appeal.

— Hon. C. P. Looebourow, Judge. Action to recover for personal injuries sustained by plaintiff’s intestate while employed by defendant as an. engineer, which resulted in his death, and were occasioned by defendant’s negligence. There was a judgment on a verdict for plaintiff. Defendant appeals.

— Hon. D. I). Miracle, Judge. action to foreclose a mortgage. Upon atrial on the merits plaintiffs’ petition was dismissed. They appeal to this court.

— Hon. John L. Stevens, Judge. jAction to enjoin and restrain the collection of a tax voted by the electors of the township of Alden, Hardin county, to aid in the construction of the Forest City & Southern Railway on the ground of defectsin the proceedings and non-compliance with the conditions of the vote. A decree granting the relief prayed for was, upon a trial on the merits, rendered for plaintiffs. Defendants appeal.

— Hon. J. H. Macomber, Judge. Action to recover damages on account of grain, grass, etc., burned on plaintiff’s land by a fire set out from an engine operated upon defendant’s railroad. There was a judgment on a verdict for plaintiff. Defendant appeals.

— Hon. A. B. Thornell, Judge. Action in chancery to enjoin defendant, who is the sheriff, from selling certain land upon execution, on the ground that it is exempt from sale for the reason that it is plaintiff’s homestead. Upon trial on the merits, the district court dismissed plaintiff’s petition. He now appeals to this court.

— Hon. J. II. Macomber, Judge. Action to recover tlie purchase price of a span of horses sold by plaintiff to defendant. There was a verdict and judgment for plaintiff. Defendant appeals.

— Hon. David Ryan, Judge. This is an action at law to recover for the breach of an alleged parol warranty as to the quality of certain land. There was a demurrer to the petition, which was sustained. Plaintiff appeals.

— IIon. Josiah Given, Judge. An information was filed against defendant before a justice of the peace, which, the justice held, charged the crime of assault and… Held: charged the crime of assault and battery. Defendant was convicted of assault and battery, and from the judgment pronounced against him he appealed to the district court. On.a trial in that court he wjas found guilty of an assault, and sentenced to pay a fine, and from that judgment he appeals to this court.

<p>Appeal from Keokuk District Court. — Hon. J„ K. Johnson, Judge.</p> <p>The defendant was indicted, tried and convicted of the crime of rape, and he appeals.</p>

— Hon. D. J. Lenehan, Judge. Proceedings by certiorari to test the legality of a tax voted by the electors of the independent district of Pleasant Grove, in the county of Black Hawk, for highway purposes. A demurrer to the answer and return to the writ of certiorari was overruled.' The plaintiff electing to stand on the demurrer, judgment was rendered against him for costs, from which he appeals.

— Hon. George H. Carr, Judge. Action to recover damages resulting to plaintiff by defendant’s herding and pasturing cattle upon plaintiff’s uninclosed land. A demurrer to plaintiff’s petition was overruled. From this decision defendant appeals.

— Hon. C. F. Cough, Judge. Action to recover damages for personal injuries sustained by the assignor of plaintiff. After the plaintiff had submitted the evidence on his part, the court instructed the jury to return a verdict for the defendant. Yerdict was returned and judgment rendered in favor of defendant. The plaintiff appeals.

<p>Appeal from, Keokuk District Court. — Hon. J. K. Johnson, Judge.</p> <p>Action on a foreign judgment. From a judgment rendered thereon defendant appeals.</p>

— Hon. C. H. Lewis, Judge. Action for the recovery of specific personal property. There was á jury trial and a verdict for defendant. Judgment was rendered thereon in his favor, and plaintiff appeals.

— Hon. S. H. Fair all, Judge. Action at law on a policy of insurance issued by defendant to recover tlie value of a building destroyed by fire. There was a trial to the court, and a judgment in favor of plaintiff. The defendant appeals.

<p>Surety: on liquor-seller’s bond : alteration : discharge. The principal in the bond in question had made application for a permit to sell intoxicating liquors for lawful purposes in a certain town, and the application described the particular house in which the sales were to be made, as the law required that it should. For the purpose of obtaining such permit, the bond in question was executed. Tho bond referred to the application, and recited the town in which the sales were to be made, but not the lot and block, and it did not recite the fact that the application was for leave to sell such liquors for mechanical, culinary and sacramental purposes only, but these matters were inserted in the bond after its execution. The condition of the bond was that the principal should “ faithfully carry out the provisions of all laws now or hereafter in force relating to the sale of intoxicating liquors.” Held that the bond was not materially altered by the insertion of the matters above referred to, and that the sureties were not discharged thereby. (Compare Rowley v. Jewett, 56 Iowa, 494, and Briscoe v. Reynolds, 51 Iowa, 675.)</p>

— Hon. O. B. Ayres, Judge. Action at law to recover damages to certain lands by reason of back-water and . overflow caused, as it is alleged, by embankments and an insufficient passageway for the water of the South river, and by making certain changes in the channel of said stream. There was a trial ,by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals.

David R. Foster executed a will which was duly admitted to probate, and this action was brought to determine the right of his widow to a share of' the personal estate. The court held that it was not essential that the widow should elect to take under the will. The heirs at law appeal.

— Hon. S. M. Weaver, Judge. Plaintiff, as administratrix of James Dale, deceased, seeks to recover damages caused by Ms death. There was a trial by jury, and a verdict and judgment were rendered in favor of plaintiff for the sum of six thousand dollars, and costs. The defendant appeals.

<p>Appeal from WrigM District Court. — Hon. D. D. Miracle, Judge.</p> <p>Action in equity to restrain the sale of land on execution. There was a trial on the merits, and a decree for plaintiff. The defendants appeals.</p>

— Hon. Marcus Kavanagh. Jr., Judge. Action in equity by a creditor’s bill, to subject certain property, conveyed by defendant to his wife, to a judgment against him in favor of plaintiff. Other judgment creditors intervene, asking the enforcement of their judgments in the same way. Plaintiff’s petition was dismissed upon a trial on the merits. He and the intervenors appeal.

— IIon. P. J. Lenehan, Judge. Action on a promissory note. The, defendant pleaded payment in part, and one of the defendants set set-up a counter-claim. A demurrer to the counter-claim wkS' sustained. There was a trial by jury, and a verdict and’judgment for plaintiff. Defendants appeal.

— Hon. Lot Thomas, Judge. Plaintiees were the owners of a quantity of hay destroyed by fire on the ninth day of October, 1886. They allege that the fire was wrongfully caused by defendant, and seek to recover its value. There was a trial by jury, and a verdict and judgment for plaintiff's. The defendant appeals.

— Hon. D. D. Miracle, Judge. The plaintiff seeks by this action to recover damages for a personal injury received while engaged as a car-repairer in the employ of the defendant. There was a trial by jury. At the close of the. introduction of the plaintiff’s evidence, the court upon motion directed a verdict for the defendant. Plaintiff appeals.

John B. Cleland, Judge. This action is founded upon nine orders issued .by tbe township clerk of Erin township, Hancock county, to the supervisors of highways in certain road districts in the township. A writ of mandamus was demanded to compel the defendants, who are the township trustees and clerk of said township, to pay said orders out of the road funds of said township, and to levy a tax for that purpose.

— Hon. S. M. Weaver, Judge. The plaintiff commenced an action in attachment against the defendant Whinery. Certain personal property was attached. The defendants Chapin & Lundy intervened in the action, and claimed the property under chattel mortgages made by Whinery to them. There were demurrers to the petitions- of intervention, which demurrers were sustained, and the intervenors appeal.

— Hon J. B. Cleland, Judge. This is a certiorari proceeding to test the validity of an order requiring the plaintiff to answer questions in regard to a certain issue involved in an action then pending, to which she was a party defendant.

— Hon. C. F. Couch, Judge. • This is an action to recover of the defendant, Henry Ricbter and the other defendants, who are sureties upon his official bond as auditor of the city of Dubuque, certain money which came .into his hands as such auditor, and which, plaintiff avers, he is rightly entitled to, and which said Richter refuses to pay to him. There was a demurrer to the petition, which was sustained, and plaintiff appeals.

— Hon. . J. B. Cleland, Judge. Action in chancery to restrain the collection of a tax voted by the electors of a township in aid of the construction of a railroad. Upon a trial on the merits plaintiffs’ petition was dismissed. They now appeal to this court.

— Hon. John B. Cleland, Judge. Action in equity to subject certain real estate to the payment of a judgment. The cause was dismissed by the court, and a motion to set aside the order of dismissal, and to set a day for trial, was overruled. The plaintiff appeals.

— Hon. L. Gr. Kinne, Judge. Action to foreclose several mortgages. There was a' decree granting the relief prayed for in plaintiff’s petition. Defendant, Mary Long, appeals.'

Court. — Hon. Lot Thomas, Judge. Action in chancery by Martha Johns and others against M. E. Griffin and others, to quiet the title to lands. There was a decree granting the relief prayed for in the petition. Defendants appeal.

— Hon. H. E. Deemer, Judge. Action at law. A demurrer to the petition was sustained in the district court. Plaintiff standing on his petition, judgment was rendered against him. He now appeals.

— Hon. J. H. Preston, Judge. This is a garnishment proceeding in which Fannie A. Lincoln is sought to be charged as having money or property in her hands belonging to defendant George A. Lincoln, who is her husband. The proceeding against him was dismissed-. Plaintiffs appeal.

— Hon. James D. Giffen, Judge. Action to recover of defendants damages for obstructing a private way over the land of defendant, which plaintiff held under a contract with defendants. The petition also asks that defendants may be restrained from further obstructing the way. There was a judgment on a verdict for defendants. Plaintiff appeals.

- — Hon. W. F. Conrad, Judge. This is a proceeding to establish a claim against an estate upon an account filed, which was disallowed by the administrator. The case was tried to a jury, and a verdict rendered for plaintiff, which the district court set aside, as being unsupported by the evidence. . Plaintiff appeals.

<p>Appeal: jurisdiction : amount in controversy. Action to replevy certain attached goods. The jury found that the goods, to the value of one hundred and eighteen dollars, were subject to the attachment. The defendant thereupon moved for judgment for forty-four dollars, the amount due in the attachment suit, and costs, and relinquished all claim to judgment for a greater sum. Held that the amount thus claimed was then the amount in controversy, as shown by the pleadings, and it being less than one hundred dollars, an appeal to this court would not lie from a judgment for defendant for that amount, without a certificate of the trial judge, as provided by section 8118 of the Code.</p>

— Hon. Marohs Kayanagh, Judge. Action to recover for injuries sustained by plaintiff from a fall while she was walking upon a sidewalk of the city. There was a judgment upon a verdict for plaintiff. Defendant appeals.

— Hon. C. F. Cioucn, Judge. This is an appeal by defendants from a decree entered in the' district court in pursuance of decisions of this court to be found in 73 Iowa, 399.

— Hon. Gf. W. Ruddick, Judge. Action to cancel certain notes and a mortgage securing their payment, on the ground that the debt for which the securities were given had been paid. Upon a trial on the merits the district court dismissed plaintiff’s petition, and entered a decree upon defendant’s cross-petition, foreclosing the mortgage. Plaintiff appeals.

•Appeal from Webster District Court. — Hon. John L. Stevens, Judge. Plaintiff appealed from the. report of commissioners appointed to appraise the damages caused by the appropriation of land by defendant for right-of-way purposes. A jury trial was had in the district court, which resulted in a verdict and judgment in favor of plaintiff for the sum of one thousand dollars. The defendant appeals.

Hon. John B. Cleland, Judge. Plaintiff seeks a divorce from defendant, on the grounds of adultery and cruel and inhuman treatment. Defendant denied the grounds alleged, and asked a divorce from plaintiff on the ground of cruel and inhuman treatment. The circuit court found that neither party was entitled to the relief demanded, and rendered judgment accordingly.

— Iíon. J. H. Preston, Judge. Action in chancery by a creditor’s bid to subject certain lands to judgments against one of the defendants. Plaintiffs ’ petition was dismissed, and they appeal.

— Host. A. W. Wilkinson, Judge. Action in attachment. The defendant pleaded a counter-claim. There was a trial to a jury, and verdict and judgment were rendered for the defendant. The plaintiff appeals.

— Hon. Q-eoroeH. Carr, Judge. Action to recover the possession of a mule. A bond was filed by plaintiff, and a writ of replevin was issued, and served by taking and returning the mule to plaintiff. The cause was tried to a jury, and a verdict and judgment rendered for defendant. The plaintiff appeals.

3. Courts: rules of practice : power to make. Chapter 134, Laws of 1886, empowering the judges of the state in convention to adopt rules of practice to prevail in all the districts of the state, does not abrogate the common-law power of the district court of a particular district to make a rule upon a point not covered by the rules adopted byjtlie judges in convention ; nor does it abrogate a rule, in existence in a particular district when the act was passed, on a point not…

— Hon. Charles H. Phelps, judge. . - . This is an action in equity for tlie partition of -real estate. The district court on a final hearing of the cause adjudged that plaintiff had no interest in the property and dismissed her petition, and she appeals.

— Hon.. • Chaeles D. Leggett, Judge. Action in equity to recover an installment of interest alleged to be due on a promissory note, and for the foreclosure of a title-bond. The district court overruled defendant’s demurrer to the petition, and he appeals.

— Hon. S. M. Weaver, Judge. '/ Action at law to recover from a stockholder of a corporation for pecuniary profits the amount of a debt against it, reduced to judgment, upon the grounds that th:e law was not complied with by the incorporators in the proceedings for the organization of the corporation. Upon a trial to the court without a jury a judgment was rendered for defendant. Plaintiff appeals.

— Hoar. S.- M. • • ... Weaver, Judge. . ¡ At the general election in the year 1887, the plaintiff and the defendant were opposing candidates for the office of superintendent of schools for Wright county. The board of canvassers for said county declared the defendant to be the successful candidate, having received more votes for the office than the plaintiff.

— Hon. I-I. E. Deemer, Judge. Action, by the county of Cass and its treasurer to recover the amount of a tax, for the payment of which the defendants are alleged to be liable. Judgment was rendered in favor of defendants for costs, and plaintiffs appeal.

— Hon. S. H. Fairall, Judge. Action to recover damages for an alleged breach, of an obligation to maintain certain fences and railway-crossings. After all the evidence was submitted in the court below, the jury were instructed to return a verdict for defendant, which was done. Judgment was rendered on the verdict, and plaintiff appeals.

Appeals from Audubon District Court. — Hon. A. B. Thornell, Judge. i These are actions to recover tlie value of certain personal property taken and converted by defendant. The plaintiffs in the first case were mortgagees of the property taken, and in the second case the plaintiff was the owner. The cases are submitted for decision together ; the questions of law involved in each being the same, and the facts upon which such questions are involved being alike in each case.

— Hon. George H. Carr, Judge. Action to quiet the title to certain lands, after a trial on the merits, plaintiff’s petition was dismissed. It now appeals.

D. D. Miracle, Judge. ■ On the second day of February, 1885, the firm of Thompson & Thompson was doing business at Dakota City, in Humboldt county, and were owing the plaintiffs $2,193.92, and to secure the same made their mortgage conveying a stock of merchandise, and also their books of account and accounts due and to become due *, and the mortgage was on the same day properly filed for record in Humboldt county.

— Hon. John W. Harvey, Judge. The transaction out of which this action arose was an exchange by plaintiff with defendant R. A. Crippen of certain real estate in the state of California for real estate and personal property in this state. The California property consisted of an undivided two-thirds of fifty-nine lots in the city of Los Angeles, 357 acres of land near Santa- Monica, and 1,680 acres in Antelope valley.

— Hon. J. B. ■ Cleland, Judge. The defendants in this case are J. N. Waller, Robert Lindon, Hubert Milner and Leroy Waller.

<p>Appeal from Franlclin District Court. — Hon. John L. Stevensj Judge.</p>

— Hon. Dell Stuart, Judge. Action brought in chancery. Upon motion of defendants it was transferred to the law docket, and upon a trial to the court without a jury judgment was rendered for defendants. Plaintiff appeals.

— How. George H. Carr, Judge. This action was commenced on the thirtieth day of September, 1885. It is a bill in equity by which the plaintiff seeks to set aside and cancel a decree foreclosing a mortgage upon certain real estate, and a sheriff’s deed made in pursuance thereof, and a subsequent deed made by the defendant Oceana Snyder to the defendant Minnie Jacobs.

— Hon. C. F. Looebourow, Judge. Plaintiff commenced an action against defendant to recover the amount due on certain notes and an account. In aid of that action, an attachment was issued, and levied upon the property in controversy. At a subsequent date, J. Y. Hinchman intervened in the action, claiming to own' the attached property. Judgment was rendered against defendant for the amount of plaintiff’s claim.

— Hon. R. C. Henry, Judge. Action in chancery to set aside and cancel a judgment on the ground that it was fraudulently entered, and to enjoin and restrain the enforcement of an execution issued thereon. After a trial on the merits, a decree was entered granting the relief prayed for in the petition. Defendants appeal.

— Hoet. Chaeles H. Lewis, Judge. This is an action in equity to cancel a conveyance of real estate, and quiet in plaintiff the title thereto. The district court entered judgment in accordance with the prayer of the petition. Defendant Cooper appeals.

— Hon. Charles H. Phelfs, Judge. ' These causes involve the same questions, and will be disposed of in a single opinion. Defendant’s intestate was one of the incorporators of a company known as the “Burlington Plow Company.” He was also director of the company and its president. The actions were brought to charge the estate with certain debts of the corporation, it having become insolvent.

— Hon. J. H. Preston, Judge. Action to recover for injuries sustained by reason of the change of grade of a street of the defendant city. A demurrer to the petition was sustained, and, plaintiff refusing to plead further, judgment was rendered for defendant. Plaintiff appeals.

— Hon. A. B. Tiiornell, Judge. Plaintier brought this action against F. L. Boynton and James McClure, to recover of them the sum of five thousand dollars for an.alleged trespass upon and injury to real estate. The cause was tried to a jury, and a verdict returned in favor of plaintiff for'twenty - five dollars as against Boynton, and $22.70 as against McClure. A motion for a new trial was overruled, and judgments were rendered in favor’ of plaintiff on the verdict.

— Hon. C. II. Lewis, Judge. Action to recover for an assault and battery committed in an attempt to ravish plaintiff. There was a judgment on a verdict for plaintiff. Defendant appeals. The case has before been in this court. See 65 Iowa, 168. *

— Hon. 0. H. Lewis, Judge. . Action on a policy of insurance. A demurrer to the reply of plaintiff to defendant’s answer was sustained, and,0 plaintiff standing upon his pleading, judgment was rendered against him, from which he appeals.

— Hon. H. E. Deemer, Judge. Action in equity to enforce the specific performance of a contract for the sale of certain real estate. There was a trial upon the merits, and a decree for the plaintiff. Defendant appeals.

<p>Appeal from O'Brien District Court. — Hon. Scott M. Ladd, Judge.</p> <p>Action for the recovery of: specific personal property. Verdict and judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Clay District Court. — Hon. Lot Thomas, Judge.</p>

<p>Appeal from Union District Court. — Hon. R. 0. Henry, Judge.</p> <p>Action of replevin. There was a judgment upon a verdict for defendant. Plaintiff, appeals.</p>

— Hon. Lot Thomas, Judge. This is an action for reimbursement for taxes paid upon certain real estate which had been adjudged to be the property of the defendant. There was a trial by the court, and a judgment was rendered for the plaintiff for part of the amount claimed. The plaintiff appeals, and claims that the district court should have awarded him. judgment for taxes paid in years prior to those for which allowance was made.

Ajypeal from Washington District Qourt. — Hon. D. Ryan, Judge. Action in equity to foreclose a mortgage on lands, securing a promissory note. .There was a decree granting the relief payed for in .-the petition.- Defendants appeal.

— Hon. D. Ryan, Judge. Action to quiet the title to lands, and for an accounting. There was a decree quieting the title of plaintiff to a part of the lands, but no other relief was granted. Defendant appeals.

<p>Appeal from Guthrie, District Court. —Hon. O. B. Ayers, Judge.</p> <p>Action to enforce judgments at law against certain lands. After a trial on the merits a decree was entered dismissing plaintiff’s petition. He now appeals to this court.</p>

— Hon. A. B. Thornell, Judge. Plaintiffs commenced an action, aided by attachment, to recover of A. J. Russell an amount due, and caused the Mills County National Bank, of G-lenwood, to be garnished as a supposed debtor of Russell. Judgment was subsequently obtained by plaintiffs against Russell for $793.86. The answer of the garnishee was filed, and controverted by appellants. A trial by jury was had on the issues thus raised.

<p>1. Mortgage: what is not : deed with agreement to reconvert. An absolute deed contained an agreement on the part of the grantee to give to the grantor a bond to reconvey upon the payment of a certain sum. Held that this did not show a debt from the grantor to the grantee, and that the deed was given to secure it, and was, hence, only a mortgage.</p> <p>2. Evidence: exclusion : error without prejudice. The exclusion of competent evidence is error without prejudice where it appears that the result could not lawfully have been different had the evidence been admitted.</p>

<p>Appeal: no notice on clerk below : dismissal. There being nothing in the record of this case, as presented to this court, to show that notice of the appeal has been served on the clerk of the district court from which it comes, as required by section 3178 of the Code, this court has no jurisdiction except to dismiss the cause ; and this it must do, although the question is not raised by counsel.</p>

<p>Judgment: lien : property held in trust or as gift : evidence. Plaintiff’s wife was, before her marriage, a judgment debtor. After the marriage, plaintiff, ignorant of the judgment, conveyed real estate to her without consideration and without her knowledge, and when he handed her the deed, and she informed him of the judgment, he said he was sorry, and. in a few days she reconveyed to him, also without consideration. After this the property was1-1 sold upon execution on the judgment, and bought in by the judgment creditor. Plaintiff at all times exercised complete ownership over the property, collecting the rents, etc. He now seeks to have the title quieted in himself and to have the sale avoided on the ground that the conveyance was but a “ testamentary devise, or a naked trust,” to which the judgment did not attach as a lien when the title was in his wife. But held that plaintiff’s own testimony showed that the conveyance was designed as a gift, and that the property was legally sold as the property of the wife to satisfy the judgment against her.</p>

— Hon. D. Ryan, Judge. This action was brought to recover a sum of money which plaintiff alleges was wrongfully paid to defendants by W. R. Sage, her agent, who had it in possession for her, and was received and converted by defendants. There was a verdict and judgment for plaintiff, and defendants appeal.

— Hon. A. H. Stutsman, Judge. This is an action at law to recover fees and mileage alleged to be due plaintiff for attending before a magistrate in a preliminary examination. The district court rendered judgment for defendant. Plaintiff appeals.

— Hon. Josiah Given/Judge. Action to foreclose a mortgage. The court refused' to send' the issue arising on a counter-claim interposed by defendant to a jury. Defendant declining to proceed further, the court entered judgment for plaintiff, and defendant appeals.

<p>Appeal from -Tones District Court. — Hon. James I). G-ifeen, Judge.</p> <p>Appeal from an order for the sale of attached property. '</p>

— Hon. C. H. Lewis, Judge, The defendants were at one time practicing law under the partnership name of Evans & Roadifer, and this action was brought to recover a certain amount of money collected by them as such attorneys, which they had refused to account for. The defendant Roadifer alone appeared, and pleaded a prior adjudication, and also a counter-claim, based on alibelous communication. Trial by jury, judgment for the plaintiff, and the defendant Roadifer appeals.

— Hon. D. J. Lenehan, Judge. Action to recover for personal injuries alleged to have been received by reason of .defects on one of thfe streets of the defendant city. There was a judgment upon a verdict for defendant. Plaintiff appeals. .

— Hon. C. F. Couch, Judge. Action in chancery to set aside a deed made without consideration, and procured by the persuasion and importunities of persons acting for the, grantee in the deed. Upon a trial on the merits plaintiff’s petition was dismissed. She now appeals.

<p>Appeal from Pocahontas District Court. — Hon. Lot Thomas, Judge.</p> <p>Action to redeem from a tax sale and deed thereon, made to defendants, on the grounds that plaintiff paid to the treasurer of the county the amount of taxes for which the land was sold, and that no notice of the expiration of the time of redemption was given, as required by law. Upon a trial on the merits, plaintiff’s petition was dismissed. The title of the land was quieted in defendants, as prayed for in their cross-petition. Plaintiff appeals.</p>

— Hon. John J. Ney, Judge. Action upon a contract to execute and issue a policy of insurance. Upon a trial toa jury the court, at the close of the plaintiff’s evidence, directed a verdict for defendant. Plaintiff appeals.

— Hon. Marcus Kavanagh, Judge. .• Action to recover for injuries resulting from a wuund by a pistol ball inflicted by defendants while attempting to arrest another. There was- a judgment upon a verdict for plaintiff. Defendants appeal. • ■ ■

<p>1. negligence: loss of deposit by insolvency of joint agent: who bears LOSS. Defendant had agreed with plaintiff upon the terms of a contract for right of way over plaintiff’s track, and a deed was to be made accordingly, for which defendant was to pay one thousand dollars. By the agreement defendant was to deposit the one thousand dollars with one H., which it did, and plaintiff received defendant’s order on H., accepted by H., for the money, to be paid on delivering the deed to H. The contract contemplated that the transaction should be completed with reasonable dispatch, and defendant was already in possession of the right of way; but plaintiff, without good excuse, delayed the execution of the deed for nearly two years, when H. had become insolvent, though he was solvent for fifteen months after the deposit was made with him. Held, in an action against defendant for the specific performance of the contract, that, since the deposit had been lost through plaintiff ’s laches, it could not recover the money of defendant, but, upon defendant’s cross-bill, plaintiff should be required to execute and deliver the deed for right of way.</p> <p>2. The Same: evidence of taking back deposit. In such ease H. was allowed to testify on plaintiff ’a behalf that a certain company of another name owned the defendant’s road, that he entered the one thousand dollars to the credit of that other company, and paid it out for defendant, and rendered accounts to the other company. Held that this was incompetent for the purpose of showing that defendant had received back the deposit of one thousand dollars, and thus prevented H. from making payment of the money to plaintiff.</p>

— Hon. H. C. Traverse, Judge. Action at law to recover a certain royalty or rent accruing upon a lease of coal lands, which was assigned to plaintiffs by one of the lessors in payment of services rendered by them as attorneys for him. The case was tried without a jury, and judgment had for defendant. Plaintiffs appeal.

— Hon. Josiai-i Given; Judge. . Defendants were indicted and tried for the crime of nuisance, alleged to have been committed in Polk county between the eighth day pf April and the twenty-second day of'May, 1886. They were found guilty, and each was adjudged to pay a fine of one thousand dollars, and costs. From that judgment they appeal.

— Hon. C. F. Cough, . Judge. Action on an alleged acceptance. The district court sustained a motion to strike out certain allegations' in the petition. Defendant then filed a demurrer to the petition, which was also sustained. Plaintiff appeals.

— Hon. ■ Walter I. Hates, Judge. Action in chancery to cancel and set aside a deed for lands, and for a settlement and accounting for moneys received by defendant as the guardian of plaintiff, appointed by reason of .the fact that plaintiff was declared insane. There was a decree granting the relief prayed for by plaintiff. Defendant appeals.

The plaintiff is the wife of John Thill, and this action is to recover damages for his intoxication caused by defendants. There was a trial to a jury, and a verdict and judgment for the plaintiff, and the defendants appeal.

— Hon. John L. Stevens, Judge. Action to recover for the wrongful occupation and use of land. Upon a trial to a jury, a verdict for defendant was entered upon the' direction of the court. Plaintiff appeals.

— Hon. S. M. Weaver, Judge. Action upon a bond given by defendant Neil and his sureties, the other defendants, to secure the proper performance of his duties and obligations as an agent of plaintiff, and the payment of all sums of money received by him for plaintiff.

— Hon. H. E. Deemer, Judge. This is an appeal by tbe plaintiff from an order made by tlie court below changing the record entry of a decree for a foreclosure of a mortgage upon certain real estate. The facts appear in the opinion.

— IAom. Charles H. Phelps, Judge. This is an action in equity by which, the plaintiff seeks to quiet the title in him to a tract or sub-division of land. There was a decree for the defendant and the plaintiff appeals.'

— Hon. C. F. Couch, Judge. Action to recover damages for injuries to Joseph Miller, the plaintiff’s intestate, which resulted in his death. The injury was caused by a construction train upon which the deceased was riding, and which, it is alleged, was so negligently operated that it spread the rails, left the track, and partially turned over, and in consequence thereof Miller was killed.

— Hon. R. C. Henry, Judge. Action to foreclose a mortgage ■ on real estate executed by the Osceola Land Company. B. L. Harding was made a defendant, and he filed a cross-petition, claiming a mechanic’s lien on the mortgaged property. Decree foreclosing the mortgage and establishing ■ the mechanic’s lien, which was declared to be the superior lien, and the plaintiffs appeal.

Appeals from Adams District Court. — How. R. 0. HenbYj Judge. The plaintiff in the three cases claims to be the owner in fee-simple of the south half of the northeast quarter, and the north half of the southeast quarter, of section 10, township 71, range -34, and seeks to redeem the same from certain tax sales under which defendants claim title. . This land was purchased from the government by James C. Taylor, in 1855.

— I-Ion. W. It. Lewis, Judge. Action to recover for damages sustained by plaintiff, and alleged to have been caused by negligence on the part of defendant. The cause was tried to a jury, and a verdict returned in favor of plaintiff for $12,500. A motion for a new trial was overruled, and a judgment rendered in favor of plaintiff for the amount of the verdict. Defendant appeals.

— Hon. J. B. Cleland, Judge. Action to recover damages caused by fire set out by an engine on defendant’s road. Trial by jury. Nerdict and judgment for plaintiff, and the defendant appeals.

— Hon. David Ryan, Judge.' Action for the recovery of damages for seduction.. At the close of plaintiff5 s evidence, the court directed the jury to return a verdict for defendant, and entered judgment on the verdict returned in obedience to that direction. Plaintiff appeals.

— Hon. .Tort att Given, Judge. The defendant was convicted of the crime of nuisance by the verdict of a jury, and the court pronounced a judgment against him, imposing a fine of one thousand dollars, and costs of the prosecution. Defendant appeals.

— Hon. John L. Stevens, Judge. Action on the covenants in- a deed executed by the defendant, conveying certain real estate to the plaintiff. The breaches stated in the petition are that the defendant was not lawfully seized of, and did not have lawful authority to sell and convey, said premises, and that the plaintiff was compelled to purchase the superior title.

— Hon. I). J. Lenehan, Judge. Action to recover the value of personal property sold by defendant by virtue of a special execution. A demurrer to the petition was sustained. Plaintiff electing to stand upon its pleading, judgment was rendered in favor of defendant for costs. The plaintiff appeals.

— Hon. J. J. Ney, Judge. This is an appeal from an order overruling a motion to vacate a temporary injunction. The material facts are stated in the opinion.

— Hon. Henry Bank, Jr., Judge. This is an action in equity; for an accounting. By agreement of tbe parties the cause was sent to a referee, who reported his finding of facts and conclusions of law, to which all of the parties filed exceptions. The conclusion of the referee was that plaintiff was entitled to recover the sum of $7,142.26, with interest from the date of the commencement of the suit.

<p>1. Jury Trial: right to: amendment after order for trial to court : discretion of court. When a cause is set down for trial to the court without a jury, and no exceptions are taken thereto, it must be presumed, in the absence of any showing to the contrary, that it is done with the consent of all parties, and if amendments are afterwards filed and new parties brought in, and the situation is so changed that some of the parties desire a jury trial, they are not then as a matter of right entitled to it, but it is a question for the 'sound discretion of the court; and this court will not interfere with the exercise of such discretion unless it is made to appear that it has been abused.</p> <p>2. Practice: setting day for trial : discretion of court : waiver. The proper and efficient conduct of the business before trial courts absolutely demands that a large discretion be reposed in them in regard to the assigning of causes for trial, and the exercise of such discretion will not be interfered with unless it appears that a wrong has been done or a right invaded. But error, if it be conceded, in setting a cause for trial on a certain day is waived, when it is afterwards set for an earlier day, and no objection is made to such order.</p> <p>3. Continuance: absence of witness: diligence. After this cause had been set down for trial on a certain* day, defendants saw one of their witnesses, and he agreed to be present at the trial, but he was not subpoenaed, and he failed to appear. Held that this was not such diligence as entitled them to a continuance on account of his absence.</p> <p>4./ Evidence: incompetent : admission, on trial to court, subject to objection : presumption as to prejudice. In a law action tried to-the court, where evidence objected to is admitted “subject to the objection,” and it appears to this court that the objection was well taken, it will yet be presumed, in the absence of a contrary showing, that the court did not consider the evidence, and that the error was, therefore, without prejudice. (Hunt v. Higman, 70 Iowa, 406, followed; Williams v. Soutter, 7 Iowa, 435 ; distinguished.)</p> <p>5. Pleading: inconsistent • claims in different counts. A plaintiff may in the same action, in different counts, join a claim to recover rent of real estate under an implied contract, and also a claim for damages for the ■wrongful occupation of the same real estate for the same time. In this case the first claim was set up in the original petition, and the second one in an amendment. (See Code, sec. 2630, and JaeJc v. Des Moines & Ft, D. Ry, Co., 19 Iowa, 627.)</p> <p>6. Former Adjudication: title to real estate. In an action to . recover for rent and for the wrongful occupation of “real estate, defendants could not question plaintiffs’ title, because, in former actions, defendants assailed the same 'title and were defeated, and as to them that matter was adjudicated. (See cases cited in opinion.)</p>

— Hon. George H. Carr, Judge. This is an action in equity, by which the plaintiffs seek to quiet their alleged title to certain lands situated in Kossuth county. The defendants deny that the plaintiffs have any title to the land, and claim title in themselves, and pray that their title may be quieted. There was a decree for the defendants, and plaintiffs appeal.

— Hon. John T. Stoneman, Judge. In December, 1875, the plaintiff was a minor seventeen years of age, and owned in fee-simple the west forty-five acres of the north half of the northwest quarter of section 16, township 85, range 6, in Linn county.

<p>Appeal from Sioux District Court. — Hon. Scott M. Ladd, Judge.</p> <p>Action in equity to quiet title to a tract of land. Judgment for defendant, and plaintiff appeals.</p>

— Hon. John B. Cleland, Judge. Defendant instituted a suit on a money demand against plaintiff, in which they sued out an attachment, on which, the sheriff seized a stock of groceries.

— How. 0. Hedges, Judge. This is an action in equity by which the plaintiff seeks to set aside and vacate certain deeds,' and a mortgage upon real estate, and to procure a decree quieting the title to the property in the plaintiff. There was a decree in the court below for the plaintiff, and the defendants appeal.

—Hon. A. B. Thornell, Judge. 'Action for the recovery of damages for a personal injury sustained by plaintiff, as she alleges, in consequence of a defect in a sidewalk in one of the streets of the defendant city. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. Scott M. Ladd, Judge. Action in equity to quiet the title to real estate. Judgment for the defendant, and the plaintiffs appeal.

— Hon. S. H. Fairall, Judge. Action in chancery to quiet the title to land. There was a decree granting the relief prayed for by plaintiff. Defendant appeals.

— Hon. Josiah Given, Judge. The plaintiff brought this action to recover double the value of seven calves, of which he was the owner, and which he claims were so injured, while running at large, by the trains of the defendant in operating its railroad; that they had to be killed ; and that the injuries were inflicted at points on the road where the right of way was not fenced and where the defendant had a right to fence.

<p>1. Mortgage: of real estate, with assignment of rent : recording : notice as to rent. Bents of real estate are not real estate ; and a real estate mortgage, in-which the rents of the building are assigned to the mortgagee, does not, by being recorded as a real-estate mortgage only, impart constructive notice to the lessee of the mortgagee’s interest in the rents. What the effect of recording the instrument also as a chattel mortgage would have been, is not determined.</p> <p>2. -:--: NOTICE TO SUB-LESSEE : LESSEE NOT BOUND. In such case, actual notice to the sub-lessee of the buildings of the assignment of the rents would not bind the lessee, unless the sub-lessee was the lessee’s agent when he received such notice.</p>

— Hon. Charles H. Phelps, Judge. Action to recover rent for the use and occupation of real estate. Trial to the court. Judgment for the defendants, and the plaintiff appeals.

<p>Attachment s intervention : burden of proof : instruction. In an action by attachment, a prior purchaser of the property intervened, and the only issue upon which the cause was tried was whether the intervenor’s purchase was or was not in fraud of the vendor’s creditors. No question was made as to who had the burden of proof, and no instruction, was, asked on that point. .The court instructed the jury that to entitle intervenor to a verdict he must show by a preponderance of the evidence that he was the owner of "the property ; also that, whether the intervenor was the owner, was dependent upon the validity of his purchase, and if he bought with intent to defraud the creditors of his vendor, the sale was invalid. Held that, since these instructions stated the law correctly, and did not in terms state that intervenor had the burden to prove his good faith in the purchase, and since, as the case was tried, the material question was fairly submitted to the jury, a reversal ought not to be had' upon the ground that the court laid upon intervenor the burden of proving his good'faith, If he desired a definite instruction on that point he should have asked for it.</p>

<p>Contract for Sale of Land: assignment to a. and sale op land TO B. : GARNISHMENT OP B. AS DEBTOR OP ASSIGNOR : INTERVENTION OP A. Defendants held a written contract for the sale to them of real estate. They sold the property to garnishee, but assigned their written contract to intervenor, to secure him and other creditors to the extent of the money which garnishee should pay for the property. Plaintiffs, with knowledge of these facts, caused the garnishee to be attached as the debtor of defendants, and he answered that he was indebted for the property, but intervenor came in and claimed the money. Held that the assignment by defendants to intervenor of their written contract carried with it the debt due from garnishee for the property, and that it was immaterial whether there was or was not another assignment of such debt prior to the garnishment, and that the submission of such question to the jury was error.</p>

<p>Criminal Case: no error found.</p>

<p>Appeal from Polk District Court. — Hon. Josiah Given, Judge.</p>

<p> Appeal from the Dubuque District Court. </p>

<p>Appeal from Polk District Court — Hon Josiah Given, Judge.</p>

<p>Appeal from Polk District Court, — Hon. Josiah Given, Judge.</p>

<p> Appeal from Council Bhiffs Superior Court, </p>

— Hon. H. E. Deemer, Judge. Action to dissolve a partnership between plaintiff and defendant Russell for the purchase and sale of lands in Kansas and to specifically enforce the conveyance of lands and transfer of contracts which he is required in equity to do. The relief prayed for in the petition was granted by the final decree of the district court. Defendants appeal.

<p>Appeal from Polk District Court. — Hon. Josiah Given, Judge.</p> <p>The defendant was indicted, tried, and convicted of keeping and maintaining a liquor nuisance. He appeals.</p>

<p>Appeal from Ringgold District Court. — Hon. J. W. Harvey, Judge.</p>

Action in equity to recover taxes paid under the same circumstances substantially stated in Goodnow v. Moulton, 51 Iowa, 555. There was judgment for the plaintiff and the defendant appeals.