Volume 80 — Iowa Reports

<p>Appeal from Union District Court. — Hon. R. C. Henry, Judge.</p> <p>Action on a promissory note for one hundred and fifty dollars. The execution of the note is admitted, but it is alleged to be void because given in fulfillment of a gambling contract, of which the following is a copy:</p> <p>“Crestón, Iowa, December 5, 1888.</p> <p>“In consideration of thirty dollars paid me this day by L. J. Cusick, I hereby guaranty to him that the five cars of cattle shipped by Cusick Bros., on December 8, to Chicago, shall sell in Chicago for four (4) cents per pound, and, he having a one-half interest in said cattle, I agree to make good to him any loss by reason of said cattle selling for less than four cents. That is, I am to pay him the difference, if any, between the price the cattle sell for and four cents on his half interest, in case they sell for less than four cents. Said difference to be paid to him on receipt of account sale, and, if said cattle sell for more than four cents, I am to have the difference. C. W. Carroll.”</p> <p>“I agree to pay C. W. Carroll whatever said cattle sell for over four cents, on my half interest.</p> <p>“L. J. Cusick.”</p> <p>The answer sets out the contract and contains averments that when the contract was made the cattle were in transit to the Chicago market; that they were sold for less than four cents per pound; and that the note in suit was given to said Cusick to make good to him the four cents per pound for the cattle under the contract, and that there was no other consideration for the note. A demurrer to the answer presents the question as to the validity of the contract. The district court sustained the demurrer, and from a judgment for plaintiff for the amount of the note the defendants appeal.</p>

— Hon. H. C. Traverse, Judge. The defendant was jointly indicted with one Henry Yance for the crime of larceny alleged to have been committed on the sixteenth day of May, 1887; the property stolen being one two-year-old heifer of the value of twenty dollars, and one one-year-old heifer valued at twelve dollars, the property of N. Ruby, , A change of venue was granted to the defendant Yance, and, this defendant having pleaded not guilty, the case was tried to a jury, and a…

— Hon. J. M. Casey, Judge. The plaintiff is the owner of a farm in Lee county, ahd the defendants are the railroad commissioners of this state. The railroad of the Chicago, Santa Pe and California Railway Company is completed and in operation over the plaintiff ’ s land, and said company made application to said commissioners for a certificate authorizing the condemnation of part of plaintiff’s land for necessary additional depot grounds.

— Hon. A. How at, Judge. Action to recover for personal injuries sustained by plaintiff’s intestate. A demurrer to the petition was sustained, and, plaintiff refusing to further plead, judgment was rendered in favor of defendant for costs. The plaintiff appeals.

<p>Divorce: desertion : lack of affection. A wife cannot justify her desertion of her husband, so as to avoid a decree of divorce based on such desertion, on the ground meiely that her husband does not love her, or on any other ground which would not authorize an action for a divorce on her part. ( See opinion for citations.)</p>

— Hon. O. M. Waterman, Judge. The plaintiff was indicted before the district court of Jackson county for the crime of keeping and maintaining a nuisance, under the law for the suppression of intemperance, and convicted on his plea of guilty. The court “thereupon sentenced the defendant to pay a fine of three hundred dollars and costs, including an attorney’s fee of fifty dollars, to be taxed with the costs,” and gave judgment therefor.

— Hon. R. C. Henry, Judge. The defendant was accused of the crime of murder, committed, as was charged, in the killing of one John Hidinger. He was convicted of murder of the second degree, and sentenced to a term of imprisonment, from ■which, judgment he appealed to this court.

— Hon. J. J. Ney, Judge. Action to recover for tlie false and fraudulent representations made by defendants as to certain land in Nebraska traded to plaintiff, with a stock of merchandise, for a farm in Buchanan county, and a small tract of land in Linn county. There was a judgment on a verdict for plaintiff. Defendant» appeal. This case has before been in this court. 77 Iowa, 594.

—I-Ion. W. B. Lewis, Judge. Action for the partition of real estate; the question in this court being one of title under the terms of a deed of conveyance. The district court gave judgment favorable to the defendants, from which the plaintiff appeals.

— Hon. John L. Stevens, Judge. The defendant seeks to recover the value of improvements made upon the land of plaintiff. There was a trial by jury, which resulted in special findings, and judgment in favor of defendant. The plaintiff appeals.

— Hon. Makcus Kavanagh, Jb., Judge. Action to recover upon a policy of • insurance against loss or damage by fire. The petition shows that defendant issued to plaintiff: a policy upon property in Pennsylvania, insuring him against loss or damage by fire, for which he paid the premium ; that while said policy was in full force the property . was totally destroyed by fire, of which he gave notice and proofs of loss, as required.

— Hon. John L. Stevens, Judge. Action to recover upon a letter of credit signed by defendant, upon which the plaintiff discounted a bill of exchange drawn on defendant, pursuant to the letter of credit. The cause was tried to the court without a jury, and judgment was rendered for defendant. Plaintiff appeals.

— Hon. H. C. Traverse, Judge. The defendant was accused of an assault by information before a.justice of the peace. He was tried and convicted. He appealed to the district court, where he was again tried, with a like result. From a judgment upon the conviction he appeals to this court.

— Hon. Marcus Kayanagh, Jr., Judge. Action against the defendant, a registered pharmacist, to recover penalties prescribed by statute for unlawful sales of intoxicating liquors. The petition charges seven' sales to one James Murphy, a person in the habit of becoming intoxicated. Defendant answered, admitting that he was a registered pharmacist, and denying every other allegation of the petition. Trial to a jury. Verdict for plaintiff for two hundred dollars.

— Hon. C. M. Waterman, Judge. The defendant was indicted for the crime of keeping a house of ill-fame, tried by a jury, and found guilty. From the judgment rendered on the verdict he appeals.

— Hon. John C. Shebwin, Judge. Action to quiet the title oí plaintiff in certain lands. After a trial on the merits, a decree was entered in favor of plaintiff, as prayed for in his petition. The defendant appeals.

— Hon. G. W. Ruddick, Judge. The plaintiffs are the trustees and the clerk of Grant township, in the defendant county, and by. virtue of their offices they constitute the board of health of said township.

— Hon. C. M. Waterman, Judge. The plaintiff seeks to recover of the defendants, who are common carriers of passengers and baggage, the value of certain wearing apparel, ornaments and ■other property which were stolen from certain trunks of the plaintiff and her husband, while being conveyed as baggage from Davenport, in this state, to the city of Los Angeles, in the state of California.

— IIoh. Marcus Kavanag-h, Jr.. Judge. ■ Action to recover amounts paid by plaintiff to redeem from certain tax sales, alleged to have been paid for'tlie use and benefit of defendant. The defendant answered, pleading a former adjudication, and also alleging that the purchase at said tax sales was with his money, and, therefore, denying that the money paid by plaintiff to redeem from said tax sales inured to the benefit of the defendant.

— Hon. J. H. Henderson, Judge. This is an action in equity for tbe foreclosure of two mortgages upon certain real estate. The defendant McCall is the owner of a judgment which he claims is a lien on the land superior to the mortgages. The district court determined that the mortgages were the prior lien, and the defenant McCall appeals.

— Hon. S. H. Fairall, Judge. This is a proceeding to set aside the approval of an administrator’s report, and to open an account therein set out, and for other relief. The district court dismissed the petition, and rendered judgment in favor of defendant for costs. The plaintiffs appeal.

In June, 1888, the defendants were accused and convicted before the police court of the city of Clinton of the offense of keeping a saloon open after eleven o’clock p. m. on the fourteenth day of June, 1888, contrary to an ordinance of said city.

— Hon. David Ryan, Judge. The defendant district, by its board of directors, made to the plaintiff the following order, of the date indicated thereby: “State oe Iowa, Oskaloosa, Sept. 20, 1886. “ The Treasurer of District Township of Monroe, in Mahaska County: “Pay to Yaggy, West & Boucher or order the sum of two hundred and forty-five dollars on March 1, 1887, from the contingent fund, for eight revised anatomical studies. By order of the board of directors. ' “Wm.

— Hon. O. F. Loofbourow, Judge. ' This is a proceeding by garnishment, whereby plaintiffs, as attaching creditors of Skelton & Rice, seek to charge the garnishees, on the ground that they hold property of defendants in attachment. A motion to strike the pleading of plaintiffs, controverting the garnishees’ answer denying their liability in the proceeding, was sustained. Plaintiffs appeal.

<p>Appeal from Poweshiek District Court. — Hon. D. Ryan, Judge.</p> <p>The plaintiff is the wife of William A. McVey. In the yeai’ 1883, she commenced an action against one Casper Nelk for damages she alleged she had sustained by reason of the unlawful sale of intoxicating liquors to her husband. A trial was had, which resulted in á judgment for the plaintiff. Nelk kept his saloon at Brooklyn, in Poweshiek county, on a certain lot owned by the defendant herein. It appears that Nelk owned the building in which he carried on his business. After judgment was rendered an execution was issued thereon, and the building was levied Upon and sold for a small amount, which, with the costs, was credited on the judgment. This action in equity was commenced in the year 1884, in which the plaintiff demands a decree establishing the judgment as a lien upon the said land of defendant, and upon the saloon building, prior to any lien of the defendant for rent, upon the ground that the alleged unlawful sales of intoxicating liquors to her husband were made with the knowledge and consent of the defendant. The defendant took issue with the averments of the petition, and the cause was set down for trial on written evidence in the form of depositions. A trial was had, and a decree was entered for the plaintiff. Defendant appeals.</p>

— Hon. Charles H. Phelps, Judge. Action to recover $131.20, balance claimed under contract for lighting, extinguishing and cleaning defendant’s street-lamps, and for gas furnished during the quarter ending October 1, 1888. The case was submitted to the court, and upon the finding of facts and conclusions of law made, judgment was entered dismissing the plaintiff’s petition, and for costs, from which plaintiff appeals.

— Hon. L. O. Hatch, Judge Action of replevin for a ferry-boat. There was a demurrer to the answer, which was overruled, and plaintiff appeals.

— Hon. D. JLenehan, Judge, Action to recover damages on áccount of an alleged breach of contract for the support of plaintiff. When the evidence had been fully submitted; the court directed the jury to return a verdict for the defendant, which was -done, and judgment was rendered in his favor for costs. The plaintiff appeals.

— Hon. N. W. Maoy, Judge. About the tenth day of July, 1887, the following instrument was executed: “lease. “This agreement witnesseth that Margaret R. and T. J. Moore have this day leased to Herman Yieth all the buildings on lots 17 and 18, in block 6, Oakland, Iowa, for the period of one year from March 1, 1887, at the monthly rental of $12.50, in advance, on the first day of each month.

— Hon. S. M. Weaver, Judge. Action to recover the possession of specific personal property. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendants appeal.

— Hon. George. H. Carr, Judge. Action in equity to enjoin a sheriff’s sale of certain real estate. There was a ■ decree for the plaintiff. Defendants appeal.

— Hon. Marcus Kavanagh, Jr., Judged Action in equity to foreclose certain chattel mortgages, and a mortgage on real estate, and for decree to establish priorities. The case was submitted to the district court, and decree entered, from which the plaintiff appeals.

— ITon. J. K. Johnson, Judge. Action in chancery to restrain defendants from enforcing a judgment upon the homestead of plaintiff. The relief prayed for by plaintiff was granted by the decree of the district court, from which defendants appeal. The facts fully appear in the opinion.

•Appeal from Mahaska District Court. — IIon. W. R. Lewis, Judge. On the eighth day of December, 1886, while the plaintiff was crossing the defendant’s , road with his team and wagon, they were struck by an engine, and one horse killed, and the other horse and the wagon were injured ; and this action is to recover the damage sustained thereby. Prom a judgment for plaintiff the defendant appeals.

— How. Gr. W. Wakefield, Judge. The plaintiff averred in her petition that on or about July 3, 1888, the defendant, by means of flattery,false promises, deceits and devices, seduced and debauched her, she being an unmarried woman of previously chaste character. The answer of the defendant was a general denial. There was a trial by jury, and a verdict and judgment for the plaintiff for fifteen hundred dollars, and defendant appeals.

— Hon. D. J. Lenehan, Judge. Action on a promissory note. The district court directed a verdict for the plaintiff, and from a judgment thereon the defendant appeals.

<p>Appeal: eight to : pleading aptee demurrer. It appearing by the record in this case that plaintiff amended her petition after a demurrer thereto was sustained, held that she thereby waived her right to appeal from the order sustaining the demurrer.</p>

— Hon. L. d. Hatch, Judge. Action in equity to set aside a conveyance of real estate. There was a trial on the merits, anda judgment in favor of defendants for costs. The plaintiff appeals.

— Hon. C. F. Looeboubow, Judge. Action aided by attachment to recover the amount of certain promissory notes and accounts. Defendant seeks to recover, by way of counter-claim, for the alleged wrongful suing out of the writ of attachment. There was a trial by a jury, and a verdict and judgment for plaintiffs; The defendant appeals.

— Hon. S. M. Weaver, Judge. From the spring of 1884 to about December 10, 1886, the firm of Eiker & King was engaged, in Ft. Dodge, Iowa, as furniture dealers. The plaintiff was the father of one member of the firm, and father-in-law of the other. On the tenth day of March, 1884, the firm gave to the plaintiff its note for three thousand dollars ; and on the eighteenth day of June thereafter it gave its note for one thousand dollars.

— Hon. Dell Stuart, Judge. Action to establish a claim against the' estate of James H. Argo, deceased. The case was tried to a jury, and at the close of plaintiff’s testimony the court, on motion of the defendant, instructed the jury to return a verdict for the defendant, to which plaintiff excepted. Yerdict for deféndant, and judgment on the verdict, from which plaintiff appeals.

— Hon. W. R. Lewis, Judge. This is an appeal from an order made on a motion to retax costs. The facts appear in the opinion. The plaintiff appeals.

—Hon. H. S. Fairall, Judge. The plaintiff is the owner of a farm, and the defendant cultivated part of the same in corn and oats in the year 1887, and agreed to deliver to the plaintiff two-fifths of the grain raised. In the month of November of that year the corn was not all gathered, and the defendant turned some cattle on the land,, intending to allow them to run upon that part where the corn had been husked, but they escaped, and destroyed some of the crop.

.Appeal from Pottaioattamie District Court. — Hon. H. E. Deemer, Judge. This is an action in chancery to foreclose a contract ' by which plaintiff obligated himself to convey certain lands upon the payment of an amount of cash and the ■execution of notes and mortgages for the balance. Upon a trial on the merits, plaintiff’s petition was dismissed. He now appeals to this court.

— Hon. Bell Stuart, Judge. This is a proceeding in garnishment. The plaintiff is the owner of a judgment against Ursula Bridenstine. He issued an execution upon the judgment, and attached Ursula Bridenstine, as administratrix of the estate of I. W. Bridenstine, deceased, as garnishee, claiming that she, as administratrix, owed a debt to herself as an individual. The defendant answered as garnishee, upon which answer the plaintiff moved for judgment.

— Hon. Gr. M. GrILCHKIST, Judge. This is a proceeding for a mandamus. The petition was dismissed upon a judgment sustaining a demurrer thereto. Plaintiff appeals.

— How. H. E. Deemed, Judge. This is an action in equity, and involves the validity of a tax title to forty acres of land. The plaintiff is the owner of the patent title, and claims that the tax title is void. The defendant maintains the validity of the tax deed, and in a cross-bill prays for a decree quieting his title. There was a decree for the defendant, and plaintiff appeals.

— Hon. C. H. Lewis, Judge. Action in equity to foreclose a mortgage, and to redeem from an execution sale under a prior mortgage. It appears without conflict that in May, 1876, R. B. Young executed to Sarah A. Fry a mortgage upon the land in question -to secure payment of a note, which note and mortgage were assigned to Gr.

— Hon. Scott M. Ladd, Judge. Plaintiffs state their cause of action in two’ counts.

— Hon. E. E. Aylesworth, Judge. ACTION to recover for medic'al services rendered by the plaintiff to tbe defendant. There was a trial by jury, and verdict and judgment for defendant. Plaintiff appeals.

— I-Ion. H. E. Deemeb, Judge. Aotiow to recover tbe amount of a promissory note. Tbe making and delivery of tbe note are admitted, but tbe defendants allege that it was given in renewal of a usurious loan, upon wbicli tbe amount recoverable bas been fully paid. There was a trial by jury, wbicb resulted in a verdict and judgment for plaintiff. Tbe' defendants appeal.

— Host. Chas. H. Phelps, Judge. Actioh in chancery to recover judgment on notes and an account against one of the defendants, and for a decree to subject to the judgment certain notes given to the other defendant, the wife of the maker of the notes, and to enjoin him from transferring them. There was a judgment and a decree for plaintiff. The wife appeals.

— How. S. H. Faikall, Judge. ACTION to open final settlement of accounts of defendant as executor, and consider objections to report. Prom an order refusing the application the plaintiff appeals.

— Hon. G. W. Ruddick, Judge. ActioN on a policy of insurance to recover for damages to a dwelling-house, barn and cattle of plaintiff, caused by a tornado. The cause was tried by the court, and a judgment rendered in favor of plaintiff. The defendánt appeals.

■Appeal from■ Jones District Court. — How. J. H. PrestoN, Judge. AotioN upon a promissory note. The cause was tried by a jury. Upon direction of the court, a verdict was had for plaintiff, and judgment rendered thereon. Defendant appeals.

— Hoik. G-eokge W. Wakefield, Judge. Action to recover possession of two trotting borses, known as “Elmwood Chief” and “Edgewood,” and certain harness and blankets. The defendant was the owner of the property in question, and sold the same to one George^ F. Wilson, who thereafter contracted the sale thereof to the plaintiff.

— Hon. Jas. D. Gieeen, Judge. Action for the interpretation of a will, brought by the widow of the testator, who is an executrix of the will, and a devisee and legatee thereunder. A demurrer to plaintiff’s petition was overruled. Defendants appeal.

— Hon. Dell Stuart, Judge. This is an action in equity by which the plaintiff seeks to subject certain land to the payment of a judgment rendered in favor of Melvina Bone, his intestate, and against T. S. Tharp and William Hicks, and the administrator of Aaron Hicks, upon a certain promissory note executed by said Tharp and by William Hicks and Aaron Hicks. Upon a 'full trial on the merits, a decree was entered for the defendants, and the plaintiff appeals.

— Hon. David • Ryan, Judge. Actions at law upon promissory notes. Trial to tke court, and judgment for defendants,-with findings of facts and of law. Plaintiff appeals. The cases, resting upon substantially the same facts, are submitted' together.

— Hon. C. P. Loofbourow, Judge. This is a proceeding for an order nunc pro tunc in regard to the payment of the claims of creditors. Relief was granted as prayed, and defendants appeal.

.Appeal from Delaware District Court. — Hon. John J. Ney, Judge. Action to recover the avails of a certain beneficiary ■certificate issued by the defendant. The defendant, not questioning its liability for the payment of the amount specified in the certificate, paid the same into court for the party legally entitled thereto ; and hence the controversy is between the plaintiff and the intervenor.

— Hon. J. B. Cl eland, Judge. Action for personal injuries sustained by falling on a sidewalk in the defendant city. There was a judgment for defendant, and the plaintiff appeals.

— Hon. H. E. Deemer, Judge. Action to recover damages for delay in shipping a carload of onions from Carson, Iowa, to Omaha, Nebraska, by reason of which delay it is claimed that the onions became heated, damaged and worthless. There was a trial by jury, and a verdict and judgment for plaintiff. Defendant appeals.

— Hon. David Ryan, Judge. On demurrer to a petition to vacate a judgment, and for injunction.

— Hon. Geo. H. Care, Judge. • Defendant was indicted and convicted of tbe ■ crime of burglary, and now appeals to this court.

<p>Appeal from Keokuk District Court. — Hon. W. R. Lewis, Judge.</p> <p>Appeal on certificate of the trial judge.</p>

— Hon. Josiah Given, Judge. The plaintiff is an attorney by profession, and the defendant is a physician. Both are residents of the city of Des Moines.

— Hon. Jas. D. GtIFFEN, Judge. Action to recover damages for an alleged rape. . There was a trial by jury, and a verdict and judgment in favor of plaintiff. The defendant appeals.

<p>Appeal from Iowa District Court. — Hon. S. H. Fair all, Judge.</p>

— How. J. H. Preston, Judge. This is an action at law by which the plaintiff seeks to recover damages oí the defendant for an alleged wilful trespass upon certain land, and cutting down and removing certain timber therefrom. There was a trial by jury, verdict and judgment for the plaintiff, and the defendant appeals.

— Hon. N. W. Macy, Judge. Action in chancery to enjoin the treasurer of the county from issuing a tax deed, and the purchaser from receiving it, on account of irregularities in the tax proceeding and insufficiency of the notice of the expiration of the time for redemption. There was a decree grant- - ing the relief prayed for by plaintiff. Defendants appeal.

— Hon. George H. Carr, Judge. In October, 1888, both plaintiff and defendant had hay stacks on the same section in Emmet county. On the thirtieth day of the month a destructive prairie fire was raging and approaching the stacks of both parties; the stacks of the parties being somewhere from one-fourth to a half mile apart.

— Hon. David Ryan, Judge. Action to recover one hundred dollars, with interest, claimed to be due upon contract for the sale of real estate. Answer admitting the contracts set out, alleging full payment, and pleading a counter-claim for $23.20 taxes paid for plaintiff, ten dollars’ damages for plowing up meadow, and fifteen dollars’ damages for failing to remove fence.

<p>Appeal from Appanoose District Court. — Hon. H. C. Traverse, Judge.</p> <p>Action on a policy of fire insurance. From ,a judgment for plaintiff the defendant appeals.</p>

.Appeal from Jones District Court. — Hon. James D. Gtieeen, Judge. action to recover damages caused by the falling of a bridge. There was a trial by jury, and a verdict and judgment for plaintiff. • The defendant appeals.

— Hon. C. M. Waterman, Judge. This is an action for the partition of certain real estate. It is alleged in the petition that the defendants S. H. Brazell and the Clinton National Bank claim to hold liens upon the property, but that the same are subject to the claims of the plaintiffs.

— Hon. John J. Net, Judge. Action to foreclose a mechanic's lien against the property of defendant Hintrager.

— Hon. W. F ' Conrad, Judge Action to recover damages for false imprisonment. There was a trial by jury, and a verdict and judgment in favor of plaintiff. The defendants appeal.

<p>Appeal from Dallas District Court. — Hon. O. B. Ayees, Judge.</p> <p>' Action on promissory notes. Judgment for defendant, and the plaintiff appeals.</p>

<p>Appeal from Polk District Court. — Hon. W. E. Conrad, Judge.</p> <p>The plaintiffs’ petition was in the usual form for the foreclosure of a mechanic’s lien, and shows that about the first of June, 1888, it sold to the defendant Tibbies Manufacturing Company lumber of the value'of $3,402.72, for the erection of certain factory buildings in Des Moines, and asking judgment, and the establishment of its lien.' The Tibbies Manufacturing Company answers, denying allegations of the petition, and averring the purchase of the lumber to be from one Robert Fullerton, who was a member of the plaintiff firm, and bought of the defendant twenty shares of its stock at the agreed price of one hundred dollars per share, and agreed to pay therefor in lumber, and that the lumber in question was delivered and received in payment for said stock. The district court determined the issues in favor of the defendants, and from its judgment the-plaintiff appeals.</p>

<p>1. Chattel Mortgage: garnishment of mortgagee : irregular foreclosure : liability. Where a mortgagee of chattels was garnished on execution against the mortgagors, and he after-wards took possession of the property under his mortgage, and proceeded to foreclose the same by public sale, at which he acted • as auctioneer, and himself bid upon and purchased the property, and credited the purchase price upon his, mortgage, held that such proceeding was irregular, but not fraudulent or void, and that he should be held to account for the value of the property, and, if that was more than the amount due him, there should be judgment .against him as garnishee for the residue.</p> <p>2. The Same: evidence. In such case evidence was properly admitted which tended to show the amount of property taken, and its value.</p> <p>3. Appeal: abstract filed too late : effect. An . appellee’s abstract will not be stricken from the files because not filed in proper time, where it does not appear that the submission of the cause was delayed, or the appellant prejudiced by the delay.</p>

— Hon. C. H. Lewis, Judge. This is an action in equity, by which the plaintiff, as assignee' of a corporation known. as the St. Paul Harvester Works, seeks to redeem certain land from a sheriff’s sale. An answer was filed, and an issue made up, and the cause was tried upon its merits, and a decree was entered for the plaintiff. Defendants appeal.

<p>Appeal from Polk District Court. — Hon. Josiah Given, Judge.</p> <p>Action in equity to foreclose a trust deed. The .material facts are stated in the opinion.</p>

<p>Appeal from Dubuque District Court. — Hon. John J, Net, Judge.</p> <p>Action to recover for a threshing machine. There was a judgment on a verdict for defendants. Plaintiffs appeal. This case has before been in this court. See 75 Iowa, 45.</p>

— Hon. A. W. Wilkinson, Judge. Plaintiffs in the case first entitled bring their action as heirs at law of Rachel Holderbaum, deceased, to have their interest in her distributive share in the estate of her deceased husband, M. Holderbaum, set off to them. W. R. Shriver, as the administrator of the estate of Adam Hochstetler, deceased, and Josiah Hochstetler intervened as creditors of the estate of M..

— Hon. Chas. A. Bishop, Judge. This action was commenced on the fourth day of April, 1888; and the plaintiff claimed in his petition the sum of two thousand dollars as a balance due him for services rendered while constable of Saylor township, Polk county. The defendant denied any indebtedness to the plaintiff, and denied that plaintiff was elected constable, and denied that he was a resident of Saylor township.

— Hon. D. D. , Miracle, Judge. Action to recover two hundred and fifty dollars’ damages to plaintiff’s team and threshing outfit, by the falling of one of defendant’s bridges while said team and outfit were being moved across the same.

— Hon. Marcus Kavanagh, Jr., Judge. Action at law, on a policy of insurance, to recover the value of a building destroyed by fire. From the ruling of the court on a motion of defendant to try certain issues as in equity, both parties appeal; the appeal of plaintiff being first perfected.

— Hon. Charles A. Bishop, Judge. This is a summary proceeding instituted by Mary S. Berry against her attorney for the recovery of money. From a judgment rendered in her favor the attorney appeals.

— Hon.. W. P. Conrad, Judge. In December, 1884, there was pending in the district court of Polk county a suit of M. W. Lynch ». J. P. Nugent (parties herein), upon a petition as follows : ‘ ‘ Second Count. The plaintiff states that the defendant is pastor of the Catholic church in East Des Moines, know as ‘St. Michael’s Parish,’ and has the principal control and management of said church.

— How. John B. Cleland, Judge, Action to recover damages for the loss of six stacks of hay, alleged to liave been burned by fire from one of defendant’s engines. Answer, denying every allegation not expressly admitted ; admitting that it is a corporation, and was operating a line of railway, as alleged, and alleging that, if any fire escaped from its engines, it was from engine number 213 ; also alleging the exercise of due care on defendant’s part.

<p>Appeal from Sioux District Qourt. — Hon. C. H. Lewis, • Judge.</p> <p>Action upon two promissory notes. A writ of attachment was issued and levied upon certain land. Petitions of intervention were filed, in which it was claimed that Prank B. Severance, the defendant in the action, had no interest in the land subject to attachment. Issues were made up upon this question, and a trial was had, and it was determined that said Prank B. Severance, at the' time the writ of attachment was levied, had an interest in the real estate in question subject to attachment. The petitions of intervention were dismissed, and the intervenors appeal.</p>

— Hon. Gr. W’ Ruddick, Judge. March 3, 1885, plaintiff filed his petition alleging that, on November 7, 1884, lie was a passenger on one of defendant’s trains from Mason City to Sheffield, in a caboose attached to a freight train ; that en route the train separated, the engine and a number of cars going forward, leaving the caboo.se and several cars that were stopped ; that defendant’s engineer wilfully, carelessly and negligently backed the engine and cars attached thereto…

— Hon. J. H. Macombbb, Judge. Action on promissory note. The important portion of the answer is as follows : “Further answering, defendant says that at or about the date of said note defendant purchased from the plaintiff one threshing-machine separator, for which the defendant gave the promissory note herein sued upon in payment; * * * that the consideration for which said note was given wholly failed, for the-reason that the said threshing-machine separator proved to be…

— IIon. J. H. Ma comber, Judge. This is an appeal from an order of the district court granting a new trial in an action to recover the value of certain beer sold by the plaintiff to the defendant. The sale of the beer was,admitted, but the defendant alleged that it was sold contrary to law. He had paid on the account sued on some one thousand and fifty dollars, which included the value of some beer bottles which were returned to the plaintiff.

— Hon. Gteoeg-e W. Wakefield, Judge. Action to recover' for money received by defendants as plaintiff’s agent. There was a judgment upon a verdict for defendants. Plaintiff appeals.

— Hon. J. H. Preston, Judge. On tlie evening of October 5, 1888, tbe plaintiff was walking along Second street, in tbe defendant city, and was injured by falling through the walk close to and in front of a store-building owned at the time by defendant Mansfield. The opening through which plaintiff fell is a part of what is known as an “area way,” quite common in cities, and designed to admit light and air to the basement.

<p>Intoxicating Liquors: contempt of injunction : sentence : suspension op execution. Defendants were found guilty of contempt for violating injunctions against saloon nuisances maintained by them, and they were each adjudged to pay a fine, and to be imprisoned in default of such payment. The judgment in each case contained the following condition : “ The execution of this judgment is to be suspended during the- pleasure of the court; but whenever the court, or one of the judges thereof, so directs, execution and warrant of commitment are to issue.” Held that the court had no authority thus to suspend at pleasure the execution of judgment for a crime committed, and that the condition was void, and of no effect to delay execution of the sentence in either case.</p>

— How. C. H. Phelps, Judge. ProceediNG- by certiorari to have set aside the assessment of certain personal property, and taxes levied thereon. There was a trial by the court, and a judgment in favor of plaintiff. The defendant appeals.

— How. W. R. Lewis, Judge. This is an action upon an administrator’s bond. The plaintiff was a creditor of the estate, and his claim was duly proved and allowed by the court, but was not paid. There was a trial by the court, and a judgment for the plaintiff. Defendants appeal.

— Hon. J. H. Macombek, Judge. ACTION to recover upon six separate contracts, in writing, whereby the plaintiff sold to the defendant certain lots in Bowling Green' addition to the city of Omaha. Answer in four counts, to the second oE which a demurrer was sustained. The’ first count is a general denial.

— Hon. D. J. Lenehan, Judge. PROCEEDING for the abatement of a saloon nuisance. The cause was submitted bo the district court on the following stipulation and evidence: “E. H. Dickinson ) a. t In district court, Dubuque “ W. E. Bentley et al. j county, Iowa. No. 8,160. ‘ ‘ Stipulation and agreement in reference to the above-named and numbered thirty-five cases.

— Hon. John C. ■ Si-ieewin, Judge. This is an action for tbe partition of real estate. Pending tbe action, tbe intervenor, James Dobbin, commenced a suit by attachment, and recovered judgment against Mary A. Aplington, tbe plaintiff, wbo was tbe owner of one, undivided eigbtb of tbe land, and tbe writ of attachment was levied on her undivided share.

— Hon. Geo. M. Gtlchrist, Judge. Action to recover the value of a colt which it is alleged was killed by one of defendant’s trains, by reason of_ the alleged negligence of defendant in permitting a cattle-guard on its line of railway to become and remain full of snow, so that said colt became entangled in said cattle-guard, and broke its leg, and was run over and killed by an engine and train of cars. There was a trial by jury, and a verdict and judgment for the plaintiff.

— Hon. C. H. Lewis, J udge. Defendant demurred to plaintiff’s petition as amended, non the ground that the facts stated do not entitle the plaintiff to. the relief demanded. The demurrer being sustained, and plaintiff: electing to stand upon the petition as amended, judgment was entered dismissing the petition, and against plaintiff for costs, from which plaintiff appeals

— ITon. Scott M. Ladd, Judge. Action in equity to recover for money deposited by tbe treasurer of plaintiff with the assignors of defendant. There was a trial by the court, and a decree in favor of the plaintiff. Defendant appeals.

— Hon. Marous Kavanagh, Jr., Judge. This is an action to quiet the title to certain real estate in the plaintiff against certain attachments and judgments held by the defendants against the firm of Lynch Bros., composed of Morris Lynch and James Lynch, Jr. There was a trial upon the merits, and a decree for the plaintiff. Defendants appeal.

— Hon. Soott Mi Ladd, Judge. Action in chancery to recover money belonging to the township, of which plaintiff is clerk, deposited by a former clerk in a bank which subsequently became insolvent, and assigned its property to defendant for the benefit of its creditors. There was a decree for plaintiff. Defendant appeals.

— Hon. Dell Stuabt, Judge. ' Action to recover for stone furnished by plaintiff to defendant. The case was tried without a jury, and a judgment was rendered for plaintiff. Defendant appeals. The case has before been in this court. 72 Iowa, 65.

— Hon. C. H. Lewis. Judge. This action involves the title of eighty acres of land. The plaintiff claims under a tax sale and deed, and the defendant is the owner of the patent title. There was a decree for the plaintiff, and defendant appeals

<p>Appeal from Polk District Court. — Hon. Marcus Kavanagii, Jr., Judge.</p> <p>Action on a promissory note. Judgment, for defendants, and the plaintiff appeals.</p>

— IIon. Gf. W. Ruddiok, Judge. The grand jury of Bremer county returned an indictment against the defendant, the charging part of which is as follows: “The said Edward Clark, on the third day of December, in the year of our Lord one thousand, eight hundred and eighty-seven, in the county of Bremer and state of Iowa, did, with a deadly weapon, to-wit, a certain billiard cue, the particular description of which is to this grand jury unknown, which the said Edward Clark then…

— Hon. John W. Harvey, Judge. Action in chancery to declare anote to be usurious, and a deed absolute to be a mortgage securing it, and to-redeem therefrom. Upon the hearing on the merits, the-deed was held to be a mortgage, and judgment was entered on the note, and the mortgage was foreclosed.,

— Hon. Chas. D. Leggett, Judge. ■ Action by the administrator of the estate of Dennis Murphy, deceased, to recover damages for injuries which resulted in the death of said Murphy, and for which defendant is alleged to be responsible. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. Chas. D. Leggett, Judge. Action for damage because of overflow of plaintiff ’ s lands, caused by the construction of defendant ’ s road. Judgment for plaintiff, and defendant appeals.

— Hon. James D. Gieeen, Judge. This is an action in equity to enjoin the defendant from' using, befouling and diverting the water of a certain spring to the damage of the plaintiff. There was a full trial upon the merits, and a decree was entered for the defendant. Plaintiff appeals.

— Hon.'* W. F. Conrad, Judge. The plaintiff and defendant were parties defendant in the case of CMcago Lumber Co. ». Tibbies Manuf . Co., ante, p. 369, and were made parties therein, because the holder of mechanics’ liens on property involved in that suit. Robertson also filed petitions of intervention, claiming priority of liens. In that suit the lien of Barrack & Son was decreed superior to that of Robertson, and Robertson appeals, entitling the cause on appeal as above.

— Hon. John T. Stoneman, Judge. The plaintiff is a judgment creditor of the Star Wagon Company of Cedar Rapids, Iowa, and as such garnished the defendant, who appeared, and answered; and thereafter the plaintiff filed its pleading controverting such answer, and averring that the garnishee was a debtor of the Star Wagon Company in the sum of ten ■thousand dollars, and also that he had in his custody property belonging to the wagon company to a large amount, and averring a…

— Hon. J. L. Stevens, Judge. Action upon a promissory note made July 25, 1887, by-defendant to E. C. Johnson or bearer, for six hundred dollars, due October 1, 1888, with ten per cent, interest, payable annually, with ten per cent, on interest ■due, attorney’s fees if action is commenced, and a clause conferring jurisdiction on any justice of the peace.

— Hon. J. H., Henderson, Judge. Action to recover possession of two promissory notes executed by the plaintiff to one Morse, and held by- the defendant. The grounds alleged for recovering the notes are that defendant and others, by false and fraudulent means, induced the plaintiff to execute said notes, the consideration for which was illegal, was against good morals and public policy, has wholly failed, and was for a gambling contract.

— Hon. John L.. Stevens, Judge. Action to charge the defendant with being the father of a bastard child. Plea of not guilty, trial to a jury, and verdict of guilty. Defendant’s motion for a new trial being overruled, judgment was entered on the verdict, and defendant appeáls.

— IIon. John W. Harvey, Judge. Action on a policy of insurance to recover the value of certain property destroyed by fire. There was a trial by jury, and a verdict and judgment for plaintiff. The defendants appeal.

— Hon. Geo. W. Wakeeield, Judge. Action upon a written contract under which plaintiff performed labor and services for defendant. There was a judgment upon a verdict for plaintiff. Defendant appeals.

— ITon. W. F. Conrad, Judge. • The defendants were jointly charged, by indictment, of the crime of nuisance, as defined in section 1543 of the Code. The defendant George Muggie was ¡separately tried, and a verdict of guilty, as charged, returned. Defendant Muggie’s motion for new trial being overruled, judgment was pronounced upon the verdict, from which he appeals.

— Hon. Soott M. Ladd, Judge. This is a proceeding by which it is sought to charge the defendant with being the father of a bastard child of one Emma Jetter. The defendant pleaded that he was. not guilty of the charge. There was a trial by' jury, and a verdict of guilty.

— Hon. S. M. Weaver, Judge. Dependant was convicted of the crime of murder in the second degree, and was adjudged to be confined in the penitentiary at Ft. Madison at hard labor for the term of fifteen years, and to pay the costs of prosecution. From that judgment he appeals.

- — Hon. J. C. Si-ierwin, Judge. Mandamus to compel defendants to construct a crossing and cattle-guards on its railroad track where a highway crosses it. A demurrer to the petition was overruled. Defendant electing to stand upon its demurrer, judgment was entered for plaintiff. Defendant appeals.

, — Hon. J. K. Johnson, Judge. Appellants were convicted of the crime of resisting an officer. From a judgment imposing a fine of one hundred- dollars on each they appeal.

— Hon. W. F. Conrad, Judge. This action is based upon the following state of facts: In July and August, 1883, the Des Moines, Osceola and Southern Railroad Company, the then owner of the railroad property now owned and operated by the defendant, the Des Moines and Kansas City Railway Company, without the payment of damages to the plaintiff’s abutting property, laid down a railroad track in the street south of the plaintiff’s property, and another track partly in an alley on…

— Hon. J. H. Macomber, Judge. Action to recover damages for breach of covenants of warranty in a deed of conveyance.

— How. S. H. Faikall, Judge. Action upon an account. There was a verdict and judgment for plaintiff for a part of'her claim, from which she appeals.

<p>Appeal from Washington District Court. — IIon. W. R. Lewis, Judge.</p> <p>The defendant was tried and convicted of the crime of manslaughter, and he appeals:</p>

. Appeal from, O'Brien District Court. — Hon. O. H. Lewis, Judge.

— Hon. Henry Bank, Jr., Judge. The plaintiff and defendant are both corporations doing business in Lee county, Iowa. Both were creditors of Swiggett Bros., a firm doing business at Bosworth, Carroll county, Missouri. It coming to the knowledge of the parties that Swiggett Bros, were about to dispose of their property, each promptly dispatched its agent to collect or secure its claim.

<p>Appeal from Butler District Court. — Hoe. Joiie C. Sherwie, Judge.</p> <p>Actioe to recover double the value of a mare alleged to bave been killed by defendant in operating its railway. Tkere was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.</p>

— Hon., Josiah Gtiven, Judge. On tbe tweuty-tbird day of May, 1887, the incorporated town of North Des Moines - by its council adopted a resolution by which it was determined that what was known as “ Sixth street” in said town, from the north end of Sixth-street bridge, should be graded, curbed and paved. In pursuance of this resolution, the paving of said street was awarded to J. B. Smith & Co., as contractors.

— Hon. .S. H. Faiball, Judge. These cases were submitted upon the same abstracts and arguments, and involve the same questions, and they will be determined in one opinion. They are actions in chancery, and involve the ownership of fifty thousand dollars of stock .in the Iowa City Gaslight Company, a corporation organized under the laws of this state, and other questions pertaining to certain acts of the incorporation and its officers.

— Hon. C. F. Looebotjrow, Judge. The plaintiff is a corporation doing a banking business at Council Bluffs, Iowa. In 1887, the defendant was engaged in buying and skipping cattle to one A. Greenameyer, at Council Bluffs. As the shipments of cattle were made, defendant would draw- on Greenameyer through the bank at Iowa City, and the drafts would be paid by the plaintiff bank. These drafts were drawn on the day a shipment was made, or a day or two thereafter.

<p>Appeal from Pottawattamie District Court.— Hon. Geobg-e Cansón, Judge.</p> <p>This is an action in equity by which the plaintiff seeks to subject a farm to the payment of a judgment against the defendant Andrew Martin. The legal title to the land is in the defendant, W. F. Crangle. The defendant Martin was formerly owner thereof, and it is charged that the conveyance from Martin to Crangle was voluntary, without consideration, and .fraudulent and void as to the plaintiff, who was a creditor of Martin when the conveyance was made. There was a decree for the plaintiff. Defendant appeals.</p>

— ITon. O. B. Atees, Judge. Action in equity to foreclose a mortgage alleged to Pave been executed by defendants, John and Jennie Smith, on the northwest quarter of the southeast quarter, and the north fifteen acres of the west twenty-five acres of the southwest quarter of the southeast quarter, of section 1, township 75, range 18, Marion county.

— How. L. G. Kinne and How. G. M. Gilchrist, Judges. ACTION to recover double the amount oí damages to stock alleged to have been caused by reason of the failure of defendant to keep closed a gate at a point where it had the right to fence. There was a trial by jury, and a verdict and judgment for plaintiff. The 'defendant appeals.

— Hon. Scott M. Ladd, Judge. ActioN in chancery to redeem from a decree of ■ foreclosure and sale thereon of the property mortgaged, on the ground that plaintiff was not served with notice of the foreclosure proceedings. There, was a decree dismissing plaintiff’s petition. He now appeals to this court.

<p>Railroads: death oe brakeman : CONTRIBUTORY negligence : proximate cause. The rear brakeman. on one of defendant’s freight trains was charged by the conductor with the duty of setting out two cars and making other changes m the train at a certain station, and with the direction of all movements of the engine necessary to accomplishing that work. He was perfectly familiar with the depot grounds, switches and sidetracks at the station in question. In setting out the two cars, he left them in such a position on the sidetrack that there was only room for a car on the main track to pass them without collision, and so that they were wrongfully left standing upon the crossing of a city street. In the further movement of cars under the brakeman’s direction, two cars were kicked back on the main track, past the two cars which had so been set out, with such speed as to indicate negligence on the part of the engineer. The conductor, seeing these cars moving at an undue rate of speed, directed the brakeman to catch, them. In obedience to this order, he began climbing the ladder upon the side of one of the moving cars, and, while intent upon so doing, the moving cars passed the cars which had been set out. and, because there was not room for his body between the moving and the standing cars, he was caught between them, and so injured that he died. Held that he was guilty of negligence in leaving the cars on the sidetrack so near to the main track, — there being no reason why he might not have had them moved further along the track, and left at a proper distance from the main track, and off the street crossing; also, that, though the engineer was guilty of negligence in kicking the other cars back with undue speed, the brakeman’s own negligence contributed to his death, and that there could be no recovery therefor.</p>

— IIow. J. H. Peestoít, Judge. Lura M. Need, as heir at law, filed objections to the final report of the executors; and from an order overruling the objections, and approving the report, she appeals.

— Hon. J. M. Casey, Judge. Action to' recover possession of specific personal property and damages resulting from its detention. There was a trial by jury, and a verdict and judgment for plaintiff. The defendants appeal.

— Hon. Josiah Given, Judge. This is a garnishment proceeding. Upon a trial on the merits of the case in the court below the garnishee was discharged. Plaintiffs appeal.

— Hon. Charles H. Bishop, Judge. The plaintiff in-this action seeks to recover damages for tke alleged breach of a contract of partnership, entered into between the parties on the first day of January, 1886. The ground of recovery is that the defendant wrongfully dissolved the partnership before its expiration, without just cause. There was a trial by jury, and a verdict and judgment for Dlaintiff, and defendant appeals.

O. P. Loofbourow, Judge. Plaintiff brings this action upon an attachment bond given by the defendant to procure the issuing of an attachment against plaintiff’s assignors, wherein the cause alleged was that they (Cocke & Morgan ) were about to dispose of their property with intent to defraud their creditors. Trial to a jury. Yerdict for defendant. Plaintiff’s motion for new trial overruled, and judgment on the verdict. Plaintiff appeals.

— Hon. D. R. Hindman, Judge. The plaintiff firm is a judgment creditor of the defendant, John A. Martin. Samantha Martin is the defendant and intervenor in the suit, and is the wife of John A. Martin. Arthur P. Martin is the son of John A. and Samantha Martin. Samantha Martin is the owner of the legal title to a certain farm in Hardin county, on which was the personal property, the ownership of which is involved in this proceeding.

— IIon. Andrew Howat, Judge. This is a proceeding by petition, asking that the defendant, an assignee, be ordered to pay plaintiff the amount of its claim arising on account of money paid by its treasurer without authority to the Grlobe Plow Works, which was used in its business and in the payment of debts. There was a trial to the court, and a judgment for a part of the sum claimed. Plaintiff appeals.

<p>Certiorari to Jasper District Court. — Hon. J. K. Johnson, Judge.</p>

— Hon. Scott M. Ladd, Judge. This is an action in equity by which the plaintiff seeks to quiet his title to certain lands in O’Brien county. There was a decree for the plaintiff, and defendant appeals.

Court. — How. J. M. Casey, Judge. Action to foreclose a mortgage. The defendants, Rees & Co., set up a junior mortgage. There is no controversy as to plaintiffs’ mortgage and a judgment held by another defendant. The sole contest is over Rees & Co.’s mortgage; the mortgagors, Steely and wife, insisting that it is invalid, and should not be enforced. By the final decree, Rees & Co.’s cross-bill, settingup the mortgage, was dismissed. They now appeal to this •court.

— Hon. J. B. Cleland, Judge. Action in equity to enforce a trust and to compel an accounting. There was a trial by the court, and a decree was rendered in favor of plaintiffs. The defendant appeals.

— ITon. Josiah Given, Judge. Action in chancery to enforce a mechanic’s lien; judgment was. entered against the defendant, but no mechanic’s lien was recognized or enforced. Defendant Munger and plaintiffs both appeal; defendant first.

— Hon. H. O. Traverse, Judge. Application for the allowance of certain claims against the estate of decedent as of tile third class. From an order making tlie allowance as prayed, certain creditors of the estate appeal.

<p>Appeal from, Lee District Court. — Hon. J. M. Casey, Judge.</p> <p>Action to recover for personal injuries received by plaintiff’s intestate, resulting in his death, while in the employment of defendant in the operation of its railroad. The injuries were caused by the negligence of defendant’s employes. There was a judgment upon a verdict for plaintiff. Defendant appeals.</p>

— Hon. D. D. Miracle, Judge. Actions in equity to quiet the title to real estate. There was a trial on the merits, and a decree in favor of plaintiff in each case. The defendants in each case appeal.

Dell Stuart, Judge. Action in equity to enjoin and abate a saloon nuisance. Judgment and decree was given for plaintiff, and the defendants appeal.

— Hon. John W. Harvey, Judge. This appears to be an action for the foreclosure of a mortgage, a decree was entered for the plaintiffs, and the cause is presented here by the defendants.

— Hon. Chas. A. Bishop, Judge. Defendant was indicted and convicted for the crime of maintaining a nuisance by keeping a place for the unlawful sale of intoxicating liquors. He appeals to this court.

J. P. Conner, Judge. Action in equity to enjoin the transfer of a promissory note and to compel its surrender and cancellation. There was a trial on the merits, and a decree was rendered in favor of plaintiff for the surrender of the note. Defendant appeals.

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

<p>No Showing of Appeal: dismissal.</p>

— Hon. J. H. Preston, Judge. William Cory died, leaving six heirs to his estate. The administrator filed his final report, showing the estate settled, except distribu tion to the heirs, and that he had on hand for distribution $2,869.39. The heirs aré William, Samuel, Abel and Daniel Cory, and Elizabeth and Sarah Martin.

<p>Appeal from Polk District Court.— Hon. Marcus Kavanagh, Jr., Judge.</p> <p>Action on a promissory note." Judgment for defendant in each case, and the plaintiffs appeal.</p>

— Hon. W. F. Conrad, Judge. Defendant was convicted of keeping intoxicating liquors for illegal sale, upon an information before a magistrate, and upon appeal to the district court was again convicted upon a verdict of a jury. He now appeals to this court.

— Hon. W. F. Conrad, Judge. The defendant was tried and convicted upon a charge of keeping and maintaining a liquor nuisance, and he appeals.