Volume 86 — Iowa Reports

— Hon. O. B. Ayers, Judge. Michael Holderbaum died, testate, in June, 1879, leaving asa part of his estate one thousand, one hundred and… Held: in effect, that the will authorized the execution of the mortgage and decreed it valid. It, however, excluded a part of the loan from the operation of the mortgage as being in excess of the authority granted by the will. From a judgment enteredinharrnony with that view both parties appeal, the appeal of defendants being first taken.

<p>Appeal from Louisa District Court. — Hon. J. K. Johnson, Judge.</p> <p>Action for damages caused by surface water discharged upon the plaintiff’s lands. , From a verdict and judgment for the plaintiff, the defendant appeals.</p>

<p>Appeal from Harrison District Court. — Hon. Gr. W. Wakefield, Judge.</p> <p>The defendant was accused and found guilty of the crime of nuisance committed by keeping for sale, in a building he controlled, intoxicating liquors in violation of law. From a judgment requiring him to pay a fine of. four hundred dollars and costs he appeals.</p>

<p>Appeal from Monroe District Court. — Hon. E. L. Burton, Judge.</p> <p>Appeal from the action of the hoard of equalization of the city of Albia in relation to an assessment upon the capital stock of a, national bank. The facts are stated in the opinion of the court.</p>

<p>1. Garnishment: delay in taking answer of garnishee : discharge. A garnishee is not entitled to a discharge on motion because of the failure of the garnishing creditor to have his answer taken within a year after notice of garnishment, where it appears that the garnishee has not been prejudiced by reason of the delay, and that he might have applied to the court at any time to have his answer taken, but omitted to do so.</p> <p>2. --: EXECUTOR SUBJECT TO, BEFORE FINAL ORDER OF DISTRIBUTION. Under .the provisions of section 2976 of the Code, an executor is subject- to garnishment, in respect to a legacy due an attachment or judgment debtor, before, a final order is made for the distribution of the estate.</p>

<p>Appeal from Mahaska District Court. — Hon. D. Eyan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>1. Judgment: collateral attack: introduction of evidence. A judgment is not subject to collateral attack because of 'an alleged irregularity in the introduction of evidence in the case wherein such judgment was rendered.</p> <p>2. -: action: counterclaim to application for alimony. In an action upon a judgment for temporary alimony recovered by a. wife pending proceedings commenced by the husband for a divorce, the husband is not precluded from setting up, by way of counterclaim, a cause of action for money due from the wife, and existing in his favor at the time said judgment was rendered, upon the ground that such claim was a proper matter of defense to the application for temporary support, and must he presumed to have been adjudicated, where it is not shown that there has been a final determination in the divorce proceeding.</p>

<p>Appeal from Clayton District Con/rt. — Hon. L. O. Hatch, Judge.</p> <p>M. H. Adams owned a horse ferryboat, running between the village of Clayton, in Clayton county, Iowa, and a point on the opposite side of the river in Wisconsin. On the eleventh day of January, 1886, he made to one Chandler a chattel mortgage on said boat to secure eighty-five dollars and fifty cents; and on the eleventh day of May, 1886, he made another mortgage thereon to one Schulte to secure the sum of three hundred dollars. Both mortgages contained provisions that the mortgagee could take possession of the boat at his election, were duly recorded in Clayton ■county, Iowa, and were duly assigned to the plaintiff. Under employment by Adams, the defendant Blake worked for him in operating the boat from April 10 to July 16, 1886, for which there is due to Blake eighty-three • dollars and ninety-three cents. Under the provisions of chapter 12, title 20, of the Code, “Of Actions against Boats or Rafts,” Blake obtained a warrant and seized the boat. Thereafter the plaintiff, as a mortgagee, brought this action in replevin to recover the possession. To the answer, based on the facts as stated, the distinct court overruled a demurrer, and gave judgment .for the defendants, from which the, plaintiff appeals.</p>

— Hon. Marcus Kavanagh, Jr., Judge.- Action for damages for a personal injury sustained by the plaintiff by falling into an area way or stairway leading to the basement of a brick building. There was a trial by jury, and a verdict and a judgment for the plaintiff. The defendants appeal.

<p>Appeals from Bes Moines District Court. — Hon. Chas. H. Phelps, Judge.</p> <p>Proceeding to abate a saloon nuisance. Tbe district court sustained a motion to strike tbe petition from tbe files, and tbe plaintiff appeals.</p>

<p>Appeal from Marshall District Court. — Hon. S. M. Weaver, Judge.</p> <p>This is a suit in equity. The plaintiffs are creditors of E.' Cunninghan & Co., a partnership which was-at one time engaged in the mercantile business at-Oilman, in Marshall county. On the tenth day of' March, 1890, said partnership made certain chattel mortgages upon their stock of goods and other assets;, and Mary A. Horton, a member of said partnership,, conveyed to E. M. Hungerford a farm of one hundred, and .sixty acres; and on the same day the members of' said partnership executed a general assignment for the-benefit of their creditors. The plaintiffs claim that the chattel mortgages and the conveyance of the land are void, because they were parts of the general assignment. The court found that said instruments were not void, and the petition was dismissed. The plaintiffs, appeal.</p>

<p>Aerolites: ownership: replevin. Where an aerolite, weighing sixty-six pounds, huried itself in the ground where it fell to the depth of three feet,- held, that it thereupon heearae the property of the owner of the soil upon whieh it fell, rather than that of one who discovered it the next day after its fall, and dug it up out of the ground.</p>

— Hon. J. C. Sherwin, Judge. February 9,1891; the plaintiffs brought this action against Stewart & Hunter, doing business in Cerro Gordo county, and C. M. C. Stewart, a resident of said county, and F. M. Hunter, a resident of Pottawattamie county, as members of said firm, on account for. goods sold and delivered to the firm since June 11, 1890.

—Hon. L. 0. Hatch, Judge. Action in equity to set aside and cancel a judgment rendered by a justice of the peace for want of jurisdiction, and to enjoin the enforcement of an execution issued thereon. There was a trial to the court, and the plaintiff’s bill was dismissed. The plaintiff appeals.

— Hon. J. O. Sherwin, Judge. Action in equity to enforce performance of an alleged agreement to compromise a judgment or to obtain a new trial. After a bearing upon tbe merits, judgment was rendered in favor of defendant. Tbe plaintiff appeals.

— Hon. B. C. Henry, Judge. Action for the value of a horse killed on the defendant’s railway. The cause was tried to the court without a jury, and from a judgment for the plaintiff the defendant appeals.

— Hon. Lot Thomas, Judge. The plaintiff owns a judgment rendered in his favor against the defendant Haywood for two hundred dollars,. drawing ten per 'cent, interest, and sixteen dollars and twenty-five cents costs. In aiother action judgment was rendered against the plaudit! and in favor of Haywood for one hundred and thirty-seven dollars and. fifty cents and for seventy dollars and ninety-five cents costs.

— Hon. Q-. W. Ruddick, Judge. This is an action at law to recover two hundred and ninety-four dollars for the insertion of an advertisement in a newspaper called the “Farmers’ Review.” The defendants admitted liability in the sum of one hundred and twenty-five dollars, and denied that they were indebted to the plaintiff in any other or further amount.

— Hon. John C. Sherwin, Judge. This is a proceeding by certiorari, instituted in this court by the plaintiffs to test the legality of the action of the defendant, a district judge, in rendering a judgment againt the plaintiffs as sureties on an injunction bond.

— Hon. A. B.. Thoenell, Judge. The defendant was convicted of the crime of' seduction, and adjudged to be imprisoned in thepenitentiary for the term of fourteen months. He appeals.

— Hon. R. C. Henry, Judge. This is an agreed case, submitted upon the following statement of facts, with certain omissions which are deemed unimportant in its consideration: “First. That the plaintiff is a copartnership composed of D. and-A. B. Stearns and L. P. Sigler and Francis Yarga, and doing business under the firm name of the ‘Leon Loan & Abstract Company.’ Second.

District Court. — Hon. C. F. Looeboueow, Judge. Action upon an injunction bond executed by Elizabeth Babcock as principal and the defendant, Bead, as her surety, in an action wherein Elizabeth Babcock was the plaintiff; and this plaintiff and others were the defendants.

<p>1. Fire Insurance: re-formation of policy: .loss: limitation of actions. Where an action to recover upon a fire insurance policy failed because of the discovery upon the trial that the property described therein was not the property intended to be insured, and-for the loss of which recovery was sought, and thereupon the plaintiff commenced an action in equity for the re-formation of the policy so as to make the same apply to the property intended to be insured, and, having obtained a decree, brought another action to recover for the loss under the policy, which action was commenced more than a year after the loss occurred, but within six months after the former action was determined, held, that for the purpose of avoiding a provision in the policy limiting the time for the commencement of action thereon to one year from the date of loss, the second suit to recover for the loss should be deemed a continuation of the first, in accordance with the provisions of section 2537 of the Code.</p> <p>2. -: PROOFS OF LOSS: waiver. The insufficiency of proofs of loss will be deemed waived' where, with the assent of the insurer, the question of the amount of the loss sustained by the insured has been submitted to arbitrators, and the arbitration conducted to a conclusion.</p> <p>3. -: TITLE TO PROPERTY: REPRESENTATIONS: KNOWLEDGE OE agent: estoppel. Where a soliciting agent for an. insurance company forwards an application for insurance, and is to receive the policy for delivery, but before its receipt by the agent the applicant, upon further information, notifies the agent of facts which might defeat the policy, and relies upon the representations of the agent that such facts do not change the legal effect of his application, the construction of the agent will be held to be that of the company, and will estop the company from setting up such facts in defense to an action on the policy.</p>

— Hon. O. P. Holmes,. Judge. This is an action in equity to recover a judgment on certain promissory notes, and to foreclose a mortgage upon certain real estate given to secure the payment of the notes. There was a judgment and decree for the plaintiff, and the defendants appeal.

— Hon. J. O. Shebwin, Judge. Action to recover an amount alleged to be due to tbe plaintiff for services rendered as pastor. By direction of the court, the jury returned a verdict for the defendants, and the plaintiff appeals.

— Hon. J. J. Ney, Judge. About November 3, 1863, one Sara Lee Porter was the owner and holder of certain bonds which had been issued by the city of Dubuque. At said time one H. A. Wiltse agreed with B. W. Poor, the intervenor, that they would procure said bonds to collect at twenty-five per cent, of the amount.

<p>1. Deceit: misrepresentation of vendor as to title to real estate: remedy of vendee. An action for deceit -will lie against a vendor of real estate for misrepresentations as to his title.</p> <p>2. Promissory Note: defenses: evidenoe. The grantor’s misrepresentations being set up as a defense to a promissory note given for part of the purchase money for the property in question, and for the purpose merely of showing a failure of consideration, no claim for damages being made, held, that evidence that the grantee knew of the defects in the tax title, upon which the conveyance to him'was based, and of the amount for which he could have purchased the patent title, was properly excluded.</p> <p>3. Practice: introduction of evidence : discretion of court . The reception of further testimony in a cause after the evidence has been declared closed, rests with the discretion of the trial court, and its action will not be disturbed upon appeal where no abuse of such discretion is shown.</p> <p>4. Evidence: leading questions. A question put to the plaintiff, the assignee of said note, as to what the grantor said with reference to himself or his grantor’s having had actual possession of the property in question, held, not to be objectionable as leading.</p> <p>5. Practice in Supreme Court: verdict: conflict in evidence: appeal. The verdict of a jury will not be disturbed upon appeal, where there is evidence to support it, although upon the whole record the court might reach a different conclusion.</p>

— Hon. C. P, Loofbourow, Judge. Action on the bond of W. L. Pratt, as principal, and the other defendants as his sureties, for two thousand, seven hundred and fifty-two dollars and seventy-six cents. Prom a verdict for the defendants, the plaintiff, appeals.

— Hon. George H. Carr, Judge. Action to recover damages for negligently setting fire to weeds and dry grass upon certain prairie land of the defendants, and permitting the same to escape from their control. There was a demurrer to the petition, which was sustained, and judgment rendered for the defendants for costs. The plaintiff appeals.

— Hon. George H: Carr, Judge. Action in equity to enforce an order of the board of railroad commissioners of the state of Iowa, requiring the defendants, the Chicago,Milwaukee & St. Paul Railway Compay and the Chicago & Northwestern; Railway Company, to connect their tracks at Algona. A demurrer to the petition was overruled. The defendants refused to plead further, and appeal.

— Hon. S. H. Fairall, Judge. The petition recites that in a suit pending in Iowa county at the instance of Novak and Jilek, Louis and Dora Le Grand were designated as defendants.

— Hon. A. E. Dewey, Judge. The defendant was indicted under section 1543 of the Code for the crime of nuisance. The case was tried to a jury, and upon the conclusion of the evidence for both parties, the court, upon its own motion, instructed the jury to find the defendant not guilty, which was done, and judgment entered discharging the defendant. The state appeals.

<p>Appeal from Hamilton District Court. — Hon. D. R„ Hindman, Judge.</p> <p>The defendants were indicted, convicted and sentenced for a conspiracy, and appeal.</p>

— Hon. D. Eyan, Judge. The defendants, M. Hines & Co., engaged to sink an artesian well for the plaintiff city, and this action is to recover damages for a breach of the contract. The action was aided by an attachment, by virtue of which a levy was made on the tower, boilei^, engine, and machinery used in the labor of sinking the well.

J. H. Henderson, Judge. Action to recover damages for injuries to the plaintiff’s intestate, resulting in his death, alleged to have been caused by his being thrown violently forward while walking upon one of the defendant’s public sidewalks by reason of a loose board therein being tipped up by a person walking in the opposite direction.

— Hon. Lot Thomas, Judge. Action to recover the possession of specific personal property. There was a trial by jury, and a verdict and judgment in favor of the defendant. The plaintiffs appeal.

<p>Appeal from Council Bluffs Superior Cowrt. — Hon. J. E.. F. McG-ee, Judge.</p> <p>Action on a supersedeas bond. Judgment for the defendants. The plaintiffs appeal.</p>

— Hon. Geo H. Carr, Judge. Action to recover the purchase price of two harrows and “extra parts” thereof, sold by the plaintiff to defendants, of the value of thirty-seven dollars and fifty cents. The defendants, ansjvering, presented a counterclaim for a breach of the conditions of the sale, and claimed damages in the sum of one hundred dollars and interest. The court directed' a verdict for the plaintiff, and from a judgment thereon the defendants appeal.

— Hon. C . P. Holmes,. Judge. Appeal by the plaintiffs from an order sustaining a motion of the defendants Abigail E. Baker and E. S. Harter, requiring the plaintiffs to credit certain sums of money in a certain order upon the decree formerly entered in this case.

— Hon. George WWakefield, Judge. Action upon a policy of insurance upon a steam flouring mill, with its machinery and contents, situated at Onawa, in Monona county. There was a trial by' jury, and a verdict and judgment for the plaintiffs.. The defendant appeals.

— Hon. J. H. Preston, Judge. This is an action for damages. The plaintiff, a subcontractor under the defendant, in 1887, entered into an agreement with the latter to grade a certain section of the Cedar Rapids & Chicago railroad, then being built between Cedar Rapids and Manchester.

— Hoñ. C. H. Phelps, Judge. The plaintiff is a city of the first class, and the defendant is a corporation engaged in the business of furnishing water to the city for the purpose of extinguishing fires, and to its inhabitants for domestic uses.

— Hon. A. Howat, Judge. Action on a certificate of membersbip and insurance, issued by the defendant. It was tried as in equity, and a judgment was rendered in favor of the defendant for costs. The plaintiff appeals.

— Hon. S. H. Fairall, Judge. This is a suit in equity, by wbieb the plaintiff seeks to rescind a contract of exchange of certain real estate. There was a full trial upon the merits of the case, and a decree for the plaintiff. The defendant appeals.

.Appeal from Scott District Court. — Hon. Andrew Howat, Judge. Action to recover for taxes paid to the defendant city for the construction of a sewer. There was a judgment for the defendant, and the plaintiff appeals.

— Hon. John 0» Sheewin, Judge. The defendant was convicted of the crime of nuisance, alleged to have been committed by maintaining a place in which he kept for sale and sold intoxicating liquors in violation of law. From a judgment requiring him to pay a fine of five hundred dollars, an attorney’s fee of twenty-five dollars, and costs, he appeals.

— Hon. Scott M.. Ladd, Judge. Action to recover for the breach of a warranty of' a stallion as a reasonably sure foal getter. From a., judgment for the plaintiffs the defendants appeal..

— Hon. H. E. Deemer, Judge. This is an action in equity brought to enforce an alleged order of the railroad commissioners requiring the defendant to build a bridge over its railroad track at such a height as that trains on the railroad may pass under the bridge.

H. E. Dbemer, Judge. Mandamus to compel the defendants as members of the board of supervisors to levy a tax. Judgment for the defendants, and the plaintiff appeals.

— Hon. George W. Wakeeierd, Judge. Proceeding for the severance of territory included within the limits of an incorporated town. There was a trial by the court, and a judgment in favor of the defendant. The plaintiffs appeal.

— Hon. M. Havana gh, Jr., Judge. Action to recover for services rendered and expenses, incurred in obtaining a loan of money.. There was a trial by jury, and a verdict and judgment in favor of the plaintiffs. The defendants appeal.

— Hon. Charles A. Bishop, Judge. Action on a policy of insurance, to which, there was a defense that the action was prematurely brought, and that the insured violated certain conditions of the policy. There was a trial to the court without a jury, and a judgment for the plaintiff. The defendant appeals. This action is based upon .a policy of insurance executed by the defendant, and covering a stock of goods of the plaintiff.

— Hon. G-eobg-e W, Wakefield, Judge. Action at law to recover the amount alleged to be due oil bonds issued by the defendant. There was a trial by the court without the aid of a jury, and a judgment rendered in favor of the defendant. The plaintiff appeals.

— Hon. J. L.. Stevens, Judge. Action at law to recover damages for the breaking-down of a county bridge, by which a steam engine, a. threshing machine and a span of horses were injured. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. The defendant appeals..

— Hon. George W. Ruddick, Judge. The plaintiff, as mortgagee, brought this action in the Worth district court, to foreclose a mortgage upon certain real estate in that county, executed to the plaintiff September 20,1886, by the defendant, H. J. Stiger, to secure the payment of one thousand, four hundred dollars, with interest. The plaintiff also asks personal .judgment against the defendants H. J. Stiger, A. S. Wilcoxen and Lowry Goode.

— Hon. D. Ryan, Judge. This is an action at law to recover damages for a nuisance, and asking for its abatement. There was a verdict and judgment for the plaintiff. Upon the rendition of the verdict, the plaintiff moved the court to enter an order enjoining or abating the nuisance. This motion was overruled, to which ruling the plaintiff excepted, and appeals. Judgment wás entered upon the verdict.

— Hon. H. O. Traverse, Judge. Action to recover the rents and profits of real estate. There was a judgment for the plaintiff, and the defendant appeals.

— Hon. J. L. Stevens,, J udge. Action to recover an amount alleged to' be due to-the plaintiff for personal services rendered on account of the defendant. A’jury was impaneled to try the cause, but the court took the case from the jury, and rendered judgment in favor of the defendant. The plaintiff appeals.

— Hon. D. E. Hindman, Judge. This is an action to recover damages for a personal injury. The plaintiff, a young man aged nineteen years and eight months, was injured in mounting a moving box car for the purpose of setting the brake thereon.

— Hon. C. P. Holmes, Judge. Action of mandamus to compel the defendant, Shaffer, as secretary of the Iowa State Agricultural Society, to issue certificates as provided in section 1112 •of the Code, certifying that the plaintiff society had reported to the board of directors of the Iowa State Agricultural Society for the years 1888 and 1889, as required by law.

— Hon. J. H. Applegate, Judge. Action on the award of fence viewers. There was a trial by jury, and a verdict for the defendant. A motion for a new trial, filed by the plaintiff, was overruled, and he appeals.

— Hon. H. M. Townee, Judge. Action to, enjoin the defendants from opening, working, or using certain land for a public highway. There was a decree dismissing the plaintiff’s bill, and he appeals.

— Hon. D. Ryan, Judge. The district court sustained a motion of the plaintiffs for a judgment nunc pro tune against John N. Martin. From the order sustaining the motion, and from the judgment rendered thereon, he appeals.—

— Hon. Charles A. Bishop, Judge. On the twenty-first day of May, 1887, the parties, through their respective agents, entered into a written contract, by tbe terms of which the plaintiffs exchanged a certain hotel property in Indianola, Iowa, for two hundred and twenty acres of land in Lee county, Iowa, the property being properly identified in the agreement. It is not necessary to set out the agreement.

<p>Criminal Procedure: trial for misdemeanor in absence of defendant: withdrawal of COUNSEL. Where an attorney, appointed by the court to defend one charged with the commission of a misdemeanor, appeared at all stages of the ease up to the time of trial, with knowledge of the defendant’s absence, and when the case was called for trial, in the absence of the accused, and without giving any reason therefor, or making any request for the protection of his client, announced to the court that he withdrew his appearance for the defendant, held, that the court might have declined to recognize the withdrawal, and required the attorney to have continued his appear- ' anee; but that it was error to proceed with the trial in the absence of the accused, and without his being represented by counsel.</p>

— Hon. L. O. Hatch, Judge. Action in equity to enforce against the property of the defendant a judgment rendered against her husband. From an order sustaining a demurrer to-the petition the plaintiffs appeal.

— Hon. William P. Brannan, Judge. Action in equity for the interpretation of a will. Prom a decree in favor of the plaintiff, the defendant, Senna A. Hunter, appeals.

— Hon. W. H. Tedeord, Judge. Action in equity to enjoin the defendants from selling two mules. There was a decree for the plaintiff,, and the defendants appeal.

— Hon. S. H. Faiball,. Judge. Action against the defendant for his failure and refusal to deliver to the plaintiff a one hundred dollar bill in exchange for one hundred dollars in hills and coin of smaller denomination received by him.. There-was a verdict for the defendant, from which the plaintiff .appeals. It appears that about September 20, 1887, the defendant entered the store of the plaintiff at Parnell, Iowa, and asked for change for a one hundred dollar bill.

— Hon. D. J. Lenehan, Judge. Action for specific performance of a contract. There was a decree for the plaintiff, and the defendant and intervenor appeal.

— Hon. A. Howat, Judge. The defendant was indicted and tried for tbe crime ■of forgery.

— Hon. S. M. Weaver, Judge. The plaintiff, as mortgagee of lots 1, 2, 3, 4, and 5, in Sargent & Baebring’s subdivision of block one hundred and eighteen of the town companies’ addition to the city of Fort Dodge, Webster county, Iowa, prosecutes this action to enjoin the defendant from causing said real estate to be levied upon and sold under a certain judgment in his favor, rendered in the district court of that county against Gh T. Baehring and W..

— Hon. David Ryan, Judge. The defendant company is a corporation, and this action is to cancel five hundred shares of the stock held by the defendant McNeil as void, because fraudulently issued, and for an accounting for moneys expended by the corporation. The decree was entered for the defendants, and the plaintiff appeals.

— Hon. David BrYAN, Judge. Proceeding on a motion to dissolve an injunction. The district court granted the motion, and the plaintiff appeals.

<p>Appeal from Audubon District Court. — Hon. H. E. Deemer, Judge.</p> <p>This ease involves the validity of a chattel' mortgage upon certain personal property. The plaintiff is the mortgagee, and the mortgage was executed by one A. 13. Case. The defendant purchased the property of Case after the mortgage was executed, delivered, and recorded. The action .is to recover the value of the property. There was a trial by the court, and it was found that the defendant was the owner, and the plaintiff appeals.</p> <p>If the certificate is to be construed in the light of what is contained in the instrument purporting to have been acknowledged, then we submit the certificate was sufficient to entitle said instrument to be recorded, and that the record thereof imparted constructive notice. Bell v. Evans, 10 Iowa, 353; BrunswickBalke-Collender Co. v. Brackett, 33 N. W. Rep. (Minn.) 214; Smith v. Boyd, 5 N. E. Rep. 319. Where a eer-' tificate of acknowledgment is ambiguous, the court may look to the instrument to which the certificate is attached, as well as to the certificate, for the purpose of determining and arriving at the true meaning of the officer. Wilcoxen v. Osborn, 77 Mo. 621; Lincoln v. Thompson, lb Mo. 613; Samuels v. Shelton, 48 Mo. 444; McClure v. McClurg, 53 Mo. 173; Ives v. Kimball, 1 Mich. 316; Harrington v. Fish, 10 Mich. 415; Newton v. McKay, 29 Mich. 1; Nelson v. Graff, 44 Mich. 433; Calumet, etc., Co. v. Bussell, 68 111. 426; Logan v. Williams, 76 111. 175; Hiles v. La Flesh, 59 Wis. 465; Middleton v. Findla, 25 Cal. 80; Brooks v. Chaplin, 3 Yt. 281; Anqier v. Schieffelin, 13 Am. Rep. 659; Furnam v. London, 13 Serg. & E. (Pa.) 386; Basshor v. Steivart, 54 Md. 376; Kelly v. Rosenstock, 45 Md. 389; Hall v. Gettings, 2 H. & J. (Md.) 380; Wise v. Postlewait, 3 W. Ya. 452; Sharpe v. Orme, 61 Ala. 263; Ingraham v. Grigg, 13 Smed. & M. (Miss.) 22; Morse ■v. Clayton, 13 Smed. &M. (Miss.) 373; Lone v. Shields, 3 Yerg. (Term.) 405; Kelly v. Calhoun, 95 U. S. 710. The omission of the grantor’s name when it can be supplied by the instrument or signature is not a fatal defect, and it is now generally held that if the name can be ascertained from the deed, the certificate must be sustained. Wise v. Postelwait, 3 W. Ya. 452; Phillips v. Ruble, Litt. Sel. Cases (Ky.) 221; Magness v. Arnold, 31 Ark. 103; Sanford v. Buckley, 30 Conn. 344; Wilcoxon v. Osborn,- 77 Mo. 621; Lincoln v. Thompson, 75 Mo. 613; Chandler v. Spear, 22 Yt. 388; Donahoe v. Lawson, 2 Ala. 203; Lane v. Shields, 3 Yerg. (Tenn.) 405.</p> <p>The question for determination in this case is whether the omission of the name of A. B. Case, the grantor, from the certificate of acknowledgment to the mortgage, is fatally defective; so that the record thereof does not afford constructiye notice of its contents. The law on the subject is very fully collected and cited in American and English Encyclopedia of Law, 147 to 159, title, Acknowledgment, paragraph 4; also in a note to Livingston v. Kittell, 41 Am. Dec. 166. As to identity of the party, at page 175. As to omission of grantor’s name, page 175. Also in a note to Wickersham v. Reeves, 1 Iowa (Cole’s), 413. Nothing will be presumed in favor of a certificate. It must comply substantially with the statutory requirements and state all the facts necessary to show a valid official act. Am. and Eng. Ency. of Law, 149, title, Acknowledgment, par. 4, citing: Tiffany v. Glover, 3 G-. Gt. 387; Wickershamv. Beeves, 1 Iowa, 413; Dickerson v. Davis, 12 Iowa, 353; Neioton v. Samuels, 17 Iowa, 528; Buell v. Irwin, 24 Mich. 145; Spitmagle v. Vanhesch, 13 Neb. 338; Becker v. Anderson, 11 Neb. 497; Wells v. Atkinson, 24 Minn. 161; Bigelow v. Livingston, 2 E. Minn. 57; Kelley v. Calhoun, 95 U. S. 710; Carpenter v. Dexter, 8 Wall. 513. See, also, Watson v. Bailey, 2 Am. Dec. 462. The following cases expressly hold that the omission of the grantor’s name from the certificate of acknowledgment is a fatal defect. Smith v. Hunt, 13 Ohio St. 260; Hayden v. Westcott, 11 Conn. 129. We have been unable to find any Iowa case on the precise point, but some of the Iowa cases treat of the subject of defective acknowledgments, and may throw some light on this ease. See Schafenburg v. Bishop, 35 Iowa, 60; Bell v. Evans, 10 Iowa, 358; Tiffany v. Glover, 3 G., Gr. 387; Wicker-sham v. Beeves, 1 Iowa, 417; Beynolds v. Kingsbwy, 15 Iowa, 238. In Smith v. Hunt, 42 Am. Dec. 201 (13 Ohio, 260), an acknowledgment in this form was held fatally defective; omitting caption. “Personally appeared-, who acknowledged that he did sign and seal the foregoing instrument, and that the same is his free act and deed. Wm. Burton, justice of the peace.” In Stanton v. Button, 2 Conn. 527, there was an omission of the word “acknowledged” and the court properly held that the certificate did not import .that the grantor had acknowledged the deed, and that it was fatally defective. In Hayden v. Westcott, 11 Conn. 129, the name of the person who appeared was omitted, and the certificate varied somewhat from the usual form. There the words were: “Personally appeared -, and acknowledged this instrument .by him sealed and subscribed, to be his free act and deed.” A majority of the court were of the opinion that the certificate did not fairly import that the grantor appeared, for that although the words “by him sealed and subscribed,” referred to the grantor, they did not, with certainty, to a common intent refer to the person who appeared to make the acknowledgment. It is the purpose of our statute, that a party may, by ex parte evidence, prove a mortgage so that it may be recorded, and the record thereof afford constructive notice of its contents. It is the peculiar duty of the officer under this statute, to prove by his certificate — which he cannot impeach — the identity of the party who makes the acknowledgment, with that of the mortgagor. The defect in this case, as we think, is the failure of the certificate to prove the identity of the party who pretends to acknowledge with that of the grantor. This fact, under our statute, ought to be .proven positively by the certificate. It would be a mischievous rule to establish that a statute of this kind is complied with by taking the intent for what the act should have been, or that the omission of careless officers shall be helped out by such indulgences. Where the acknowledgment is fatally defective the record of the deed does not give constructive notice. Dussaumey. Bennett, 5 Iowa, 95; Brinton v. Seevers, 12 Iowa, 389; Reynolds v. Kingsbury, 15 Iowa, 238. Not even if the record shows it correct. Netuman v. Samtiels, 17 Iowa, 528; Simms v. BLervey, 19 Iowa, 273.</p>

— Hon. John L. Stevens, Judge. The plaintiffs, heirs at law df J. Meyeringh, deceased, bring this action to charge the defendant, as administrator, with the proceeds of a certain policy of life insurance on the life of said deceased, upon the grounds that he “allowed the same to be squandered and consumed.” J. D. Newcomer, as guardian of the minor heirs of the deceased, intervenes, asking like relief against the defendant, Wendt.

— Hon. J. L. Stevens, Judge. Action in equity to recover of /Reuben Dunkelberger the amounts due on certain promissory notes, and to foreclose mortgages given to secure their payment. From a decree rendered after a hearing on the merits, Utley & Boynton appeal.

— Hon. J. K.. Johnson, Judge. Oeetioeaex,to the defendant, as judge of the sixth, judicial district of Iowa, to test the validity of a judgment for contempt against the plaintiff in this proceeding.

— Hon. J. K. Johnson, Judge. Certiorari to the defendant as judge of the sixth judicial district of Iowa. On the thirteenth day of June, 1888, the plaintiff' in this suit, as defendant in a suit then pending, was-enjoined from maintaining a nuisance by keeping and ■selling intoxicating liquors in a certain building in Oskaloosa, which is in the sixth judicial district of Iowa.

— Hon. Charles D. Goldsmith, Judge. Action for damages for the nondelivery of grain. There was a verdict and judgment for the plaintiff, and the defendant appeals.

— Hon. John L. Stevens, Judge. The facts in this case are stated in the opinion. Prom an order sustaining a motion to strike an amended and supplemental petition the plaintiff appeals.

— Hon. A. B. Thornell, Judge. The plaintiffs state as their cause of action that on or about the eighth day of June, 1886, they sold to the defendant, by a verbal contract, one Excelsior reaper and twine binder, six foot cut, for the agreed price of one hundred and seventy-five dollars to be paid in cash upon the delivery of the machine, or to be settled for by notes, with six per cent, interest thereon from date; that on or about June 11, 1886, they delivered said machine…

— Hon. L. G-. Kinne, Judge. This is an action in equity, and it involves the rights and liabilities of the respective parties to a right of way and grade of a railroad from Belmond, in Wright county, to Forest City, in Winnebago county. The plaintiffs claim that they were the owners of said right of way and grade, and that the defendants wantonly, maliciously, and piratically took possession of said grade, and laid down a railroad track thereon, which they are now operating.

—Hon. D. B. Hindman, Judge. Action in equity to set aside a conveyance of real estate. From an order sustaining a motion of the defendant to dismiss the action, the plaintiff appeals.

— Hon. Charles D, Goldsmith, Judge. Action in equity to redeem certain real estate from a tax sale. There was a full hearing upon the merits and.a decree for the plaintiff. The defendants appeal.

Appeal- from Marshall District Court. — Hon. John L,. Stevens, Judge. Appeal from the action of the district court refusing to annul the plaintiff’s assessment. Plaintiff claims-that he had no moneys and credits taxable for the year-1890, in the city of Marshalltown; that his moneys and credits were taxable in State Center, and were assessed there for the year 1890; that he was assessed with a. piano in said city of Marshalltown for the year 1890.

— Hon. Gr. W. Wakeeield, Judge. Action to recover the sum of four hundred and fifty dollars and interest, which the plaintiff ‘ claims to be due him as assignee. There was a trial to the court without a jury, and a judgment for the plaintiff. The defendants appeal.

— Hon. W. F. Conrad,. Judge. This is an action at law, and it involves the title to a horse power cornsheller. There was a trial by jury, and the court directed a verdict for the defendants. The plaintiff appeals.

— Hon. George Carson, Judge. Action in equity to transfer the foreclosure of certain chattel mortgages to the district court, for an accounting and other relief. There was a hearing, and a decree on the merits. The plaintiff appeals.

— Hon. J. C. Sherwin, Judge. Action to recover for merchandise sold and delivered. The defendant seeks to recover on a counterclaim for breach of warranty in the sale of a ruling machine. There was a trial to the court, and judgment in favor of the defendant. The plaintiff appeals.

— Hon. Walter I,. Smith, Judge. The defendant was indicted for the crime of' larceny from a building in the nighttime, and was convicted of simple larceny. He appeals.

— Hon. D. B. Hindman, Judge. Action for damages for refusal of the defendant to comply with his written contract for the purchase of a harvester. The defense was breach of warranty. There was a trial to a jury, resulting in a verdict and judgment for the defendant. The plaintiff appeals.

— Hon. J. P. Connor, Judge. Action in three counts to recover damages for an alleged willful, malicious, and unlawful taking, injuring, and conversion of a certain stock of jewelry, fixtures, safe, showcase, and jeweler’s tools, kept by the plaintiff in his business as a jeweler in a certain .storeroom, and for the wrongful taking and detention of the possession of said room.

— Hon. S. H. Fair all, Judge. This action was commenced August 11, 1890, to recover forty-six dollars, with interest at six per cent, from February 20, 1886, on an account for medical services rendered at various dates between May 27, 1884, and August 20, 1885.

— Hon. George,W. Wakefield, Judge. Action for seduction. The damages claimed are for loss of time, medical services, and expense incident to confinement, trouble and expense in attending,,' caring for, and clothing the child, and for mental •anguish and loss of character. There was a verdict -and judgment for the plaintiff, and the defendant •appeals.

. Appeal from Woodbury District Court. — Hon. Scott M. Ladd, Judge. The plaintiffs bring this action in equity to foreclose a mortgage upon real' estate executed by Reinhart Sevening, deceased, and the defendant, Mathilda Sevening, his wife, to James Conn, deceased, to secure the payment of one promissory note of said Reinhart Sevening to said James Conn.

— Hon. S. M. Weaver, Judge. This action was brought before a justice of the peace to recover tbe amount of an award made by township trustees acting as fence viewers, in the matter of the alleged failure of the defendant to erect that part of a partition fence set apart to him on the line of the lands owned by the plaintiff and the defendant; A trial was had before the justice of the peace, which resulted in a judgment for the plaintiff.

— Hon. J. H. Henderson, Judge. The defendant Allen Hamrick is the assignee of Jacob Oppenheimer, an insolvent. The other defendants are sureties upon the assignee’s bond. The plaintiff is a creditor of Jacob Oppenheimer, and he seeks by this action to recover judgment on the bond, because of the alleged failure of the assignee to pay to the plaintiff certain money in obedience to an order of court. There was a trial by the court, and a judgment for the plaintiff.

Appeal 'from Lyon District Court. — Hon. G-eorge W. Wakefield, Judge. Action in equity to compel the defendant to conform its charges to the schedule of maximum rates made by the board of railroad commissioners, and applicable .to its road, and to compel it to refund certain charges. The cause was tried upon an agreed statement of facts, and a judgment was rendered in favor of the defendant. The plaintiffs appeal.

— Hon. J. E. F. McG-ee, Judge. Action of mandamus to compel the payment of certain judgments. A demurrer to. the answer was sustained, and judgment was rendered in favor of the plaintiffs as prayed. The defendants appeal.

— Hon. D. E. Hind-man, Judge. Action for the partition of certain lands, and to set aside a deed executed by the plaintiff, George Yazel, to his sons, David and Joseph Yazel, of a certain interest in the lands sought to be partitioned. There was a decree for plaintiffs, and-the defendants David and Joseph. Yazel appeal.

— Hon. W. A. Hoyt, Judge. Proceeding by certiorari, instituted in this court by the plaintiffs to test the legality of the action of Hon. W. A. Hoyt, district judge, in refusing to find the defendants guilty of a contempt.

— Hon. George W. Wakefield, Judge. Action for damages to the plaintiff’s real estate, resulting from a change of grade in certain streets. A demurrer to. the petition was sustained. The plaintiff excepted, and, standing on his petition, and refusing to plead further, judgment was rendered against him for costs, and dismissing his action. He excepted and appeals.

— Hon. D. B. Hindman, Judge. Action for damages for the breach of an oral contract of warranty of a harvester bought by plaintiff of the defendant. There was a trial to a jury resulting in a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. Scott M. Ladd, Judge.. The defendant was indicted for rape, was found guilty of an assault with intent to commit rape and sentenced to be confined in the penitentiary for the term of three years and six months. He appeals.

— Hon. Scott M. Labb, (Judge. This is an action by which it is sought to set aside and cancel certain tax deeds to certain real estate. The plaintiff claims to hold the patent title to the lands, and the defendants claim under the tax deeds. The plaintiff demurred to the answer of the defendants, and also filed a motion to strike from the files a part of the answer.

— Hon. James D. Gtefen, Judge. The plaintiff seeks by this action to recover damages for the killing of two horses and the destruction of a wagon by the breaking down of a bridge which was built and maintained by the county. There was á trial by jury, and a verdict and judgment for the defendant. The plaintiff appeals.

— Hon. G-eobge W. Wakefield, Judge. Action to recover the value of merchandise alleged to have been sold and delivered by plaintiffs to the defendant. There was a trial by jury, and a verdict and judgment in favor of the defendant. The plaintiffs appeal.

<p>1. Promissory Note: right or action: pleading. Where in an action upon a promissory note, the plaintiff alleges that he is the absolute and unqualified owner of said note, and issue is joined on such averment, proof of such ownership on the part of the plaintiff is necessary to entitle him to recover.</p> <p>2. -: -: ownership: evidence. The plaintiff’s cashier tes- " tilled that he paid one hundred dollars over the counter for the note in suit, and that such payment was made during banking hours and in the usual course of business, and that the bank was the absolute and unqualified owner of the note. It appeared, however, that said note was taken, with eleven others, just before maturity, by a resident of this state, to the plaintiff bank in Kansas, and, that about the same time, the plaintiff purchased two other lots of notes, all of which were made at the same town in Iowa, and were payable there; and that the plaintiff received said note from a stranger, who guarantied the genuineness of the signature, the collection thereof, .“with all expenses connected therewith,” provided said note was placed in the the hands of a firm of attorneys named, who were residents of the town in Iowa where said note was taken. Held, that as, under the instructions of the court, the .burden of proof was upon the plaintiff to establish its ownership of said note, the finding of the jury that the plaint-, iff was not the owner of said note, was not without support under the ■ evidence.</p>

— Hon. D. R. Hindman, Judge. The defendant was indicted, tried, and convicted of the crime of nuisance. His motion for new trial was overruled, and judgment entered against him on the verdict, from which he appeals.

Appeals front O’ Brian .District Court. — Hon. Frank R. Gaynor, Judge, Actions in equity to enforce orders of the railroad commissioners requiring the defendant to set apart grounds on its side tracks at Hartley, Iowa, for the use of the Sunny Hill Alliance, No. 1506, for the erection of a coal shed. Motions to make more specific, and to strike out parts of ■ the petition, were overruled. The defendant excepted. Demurrers to the petition were also overruled.

— Hon. Gr. W. Wakefield, Judge. The plaintiff avers, in substance, that bn the twentieth clay of July, 1889, the defendant, O. H. Dean, made to Nichols, Shepherd & Co., four promissory notes, for three hundred and fifty-two dollars and fifty cents each, due respectively, January 1, 1890, 1891, 1892, and 1893; that the last of the series of notes was signed by both C. H. Dean and Silas Dean; that C. H. Dean, gave as security for the payment of the notes, a chattel mortgage on…

— Hon. George W. Wakefield, Judge. Action in equity to set aside certain conveyances of real estate, and for the appointment of a receiver. From a decree in favor of the plaintiff the defendants Lucius H. B. Baymond and Bebecca Baymond appeal.

— Hon. J. H. Macombeb, Judge. The plaintiffs are residents of Grant township, in Carroll county. The particular place of their residence is on section 18, and the north half of the northwest quarter of sections 19 and 30, in said township, The said territory is attached to the independent school district of Carroll for school puiposes.

— Hon. L. O. Hatch, Judge. Action for personal injury resulting in the death of the plaintiff’s intestate. Judgment for the plaintiff, and the defendant appeals.

— Hon. J. E. E. MoG-ee, Judge. This is an action to recover of the defendant two hundred and ninety-eight dollars claimed to have been illegally paid him for services as alderman of the plaintiff city, and. for services as a member of the board of equalization. A jury was waived, and there was a trial to the court, resulting in a judgment for the plaintiff-. The defendant appeals.

— Hon. Lot Thomas, Judge. Action at law to recover damages of the defendants for herding cattle upon certain wild and uninclosed land, by reason of which the grass thereon was pastured ' and permanently injured and practically destroyed. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal.

'.Appeal from Fremont District Court. — Blots. H. E. Deemer, Judge. The defendant was convicted of the crime of seduction, and adjudged to be imprisoned in the penitentiary at Ft. Madison, at hard labor, for the term of two years. Prom that judgment he appeals.

— Hon. Lot Thomas, Judge. Action in two counts to recover damages for an alleged wrongful conversion of seventeen head of cattle and fifty-eight head of hogs. The plaintiff alleges in the first count that he had a landlord’s lien upon said property for rents due to him from N. H. Jacobs, and that the defendant purchased the cattle and hogs from Jacobs, and has converted them to his own use, and refuses to account therefor.

— Hon. Charles H. Phelps, Judge. Action in chancery by a creditors’ bill to set aside certain deeds, and subject the land conveyed to the payment of certain debts held by plaintiff and an intervenor against the grantor in the deeds. The relief sought in the petition was granted by the decree of the district court. Defendants appeal.

Appeal fropi Dallas District Court. — Hon. J. H. Henderson, Judge. This action was brought to recover an amount claimed to be due the plaintiffs from the defendants upon an account which arose in the business of purchasing and selling live stock. There was a cross-petition in equity filed by the defendants in which they demanded an accounting of all the transactions between the parties.

— Hon. Wm. F. Brannan? Judge. This is an appeal from an order sustaining a demurrer to a petition for a retaxation of costs in a contest as to the validity of an instrument purporting to be the last will and testament of Juliette Carman, deceased. The effect of the decision of the district court was that the costs were properly taxed to the estate of Juliette Carman.

— Hon. L. G. Kinne, Judge. The plaintiff, a resident taxpayer of the defendant city, brings this action to declare the revised ordinance number 21 of said city, and two written contracts made thereunder, between the city and William A. Hunter, null and void, and to enjoin the allowance or payment of any bills for the rent of electric lights out of the general fund of the city under said ordinance and contracts. The defendants demurred upon the grounds: “First.

— Hon. S. M. Weaver, Judge. Action against the defendant as indorser of a draft. There was a judgment for the plaintiff. The defendant appeals.

— Hon. W. A..Hoyt, Judge. Action at law to recover the sum of five hundred and seventy-seven dollars, which the plaintiff alleges was deposited with the clerk of the district court as a tender in a certain action against the plaintiff, and which the plaintiff alleges the defendant drew from the custody of the clerk, and converted to his own use, in violation of an agreement to pay the same in part payment of a certain mortgage.

— Hon. W. A. Hoyt, Judge, Action in equity to recover an amount alleged to be due on a promissory note, and for the foreclosure of á mortgage given to secure its payment. After a hearing on the merits, a decree was rendered in favor of the defendants. The plaintiff appeals.

■ — Hon. D. J. Lenehan, Judge. This action is based upon the same facts and transactions as that between the same parties reported in 83 Iowa, 705, except that this action is for the value of the crop of 1890, while that action was for the crops of the years 1888 and 1889. In this ease there was a judgment for the plaintiff, and the defendant appeals.

— Hon. W. H. Tedford, Judge. Action in equity to enjoin the sale of real estate under execution. From a decree in favor of the plaintiff the defendants appeal.

— Hon. H. E. Deemer, Judge. Action to recover damage for an alleged breach of a verba! agreement to sell and deliver corn. There was a trial by jury, and a verdict and judgment in favor of the defendant. The plaintiffs appeal.

— Hon C. H. Lewis, Judge. This is an action in equity, the object of which is to quiet the alleged title of the plaintiff in certain real estate, situated in Woodbury county. There was a full trial upon the merits, and a decree for the defendant. The plaintiff appeals.'

— Hon. W. A. Hoyt, Judge. Indictment for rape. There was a verdict and judgment for the state, and the defendant appeals.

<p>Appeal from Harrison District Court. — Hon. Geo. W. Wakefield, Judge.</p>

- — Hon. J. K. Johnson, Judge. Certiorari to the defendant, as district judge of the sixth judicial district of Iowa, to test the validity of a judgment in a contempt proceeding forthe violation of an injunction.

— Hon. Charles D. Goldsmith, Judge. Action on a policy of insurance, 'wherein there was a judgment for the plaintiff. The defendent is indicated as appellant.

<p>Appeal from Polk District Court. — Hon. W. E. Conrad, Judge.</p> <p>Action on a policy of insurance. There was a judgment for the plaintiff, and the defendant appeals.</p>

— Hon. D. Ryan, Judge. Action at law to recover damages for the killing of two colts by a locomotive engine upon the defendant’s railroad. There was a trial by jury, and a verdict and judgment from the plaintiff. The defendant appeals.

<p>Appeal from Woodbury District Court. — Hon. G. W. Wakefield, Judge.</p> <p>Action to quiet title. "There was a decree for the plaintiff, and the defendant appeals.</p>

— Hon. J. H. Macomber, Judge. Action in equity to recover the amount of certain promissory notes, and to foreclose certain chattel mortgages. From a decree giving him but a part of the relief demanded the plaintiff, appeals.