Volume 87 — Iowa Reports

— Hon. J. H. Pbeston, Judge. The defendant was indicted, tried and convicted of the crime of incest with his step-daughter, Sarah D. Cowden. Judgment was entered against him on the verdict, from which judgment he appeals. The correctness of the appellee’s amended and additional abstract being denied, and no transcript filed, the case must be considered upon the appellant’s abstract alone.

<p>Appeal from Jones District Court. — Hon. J. H. Pbeston, Judge.</p> <p>This is an action at law based upon a judgment of the circuit court of Shelby county, in the state of Tennessee.* There was a trial before the court, a jury having been waived, and a judgment was rendered for the defendant for costs. The plaintiffs appeal.—</p>

— Hon. F. B. Gaynor, Judge. Action to establish a mechanic’s lien, which the district court refused, and the plaintiff appealed.

<p>Appeal from Jones District Court. — Hon. J. H. Preston, Judge.</p> <p>Action to recover damages for an alleged rape. Jury trial. Verdict and judgment for plaintiff. Defendant appeals. —</p>

<p>Appeal •from Buena Vista JDisb-iet Court. — Hon. Lot Thomas, Judge.-</p> <p>The defendant was accused and convicted of the crime of nuisance, committed by owning and keeping in a building intoxicating liquors, with intent to sell them in violation of law. From a judgment imposing a fine of four hundred dollars and costs, he appeals.</p>

<p>Appeal from Hamilton District Court.— Hon. S. M.. Weaved,, Judge.</p> <p>Action at law to recover of the defendant one thousand dollars and interest upon ¿ certain benefit certificate issued by the defendant to JohnE. G-ary, husband of the plaintiff. Said certificate was made payable to the plaintiff after the death of her husband, who departed this life August 30, 1888. The plaintiff alleges as a reason why she does not set out said certificate as a part of her petition that it was not in her possession, but in the possession of one E. H. Gary, of Illinois, he having obtained the same by fraud, deceit, threats, and false representations. In an amendment to her petition she sets out said certificate, having been permitted through the courtesy of the defendant’s attorneys, to make a copy thereof. The defendant’ admits its liability on the certificate, but alleges that on August 30, 1888, the plaintiff executed and delivered to E. H. G-ary, a written assignment of said certificate, and that she has not since been the owner thereof. The defendant also answered, setting out a certain proceeding in chancery in the superior court of Cook county, Illinois,, which will be hereafter noticed, claiming that by reason of said proceeding the plaintiff is barred from recovering in this action. There was a trial by jury, and a verdict for the plaintiff. The defendant appeals.—</p>

— Hon. S. H. Faiball, Judge. The defendant was accused of the crime of burglary, tried, and found guilty, and adjudged to be imprisoned in the state penitentiary, at hard labor, for the term of-five years. From that judgment ho appeals. —

— Hon. Charles A. Bishop, Judge. Action in equity to compel the specific performance of a contract fot the conveyance of certain real… Held: “That where time is really material to the parties, the right to the specific performance may'be dependent on it.” See, also, McKay v. Carrington, 1 McLean, 50. So in a contract to sell and convey a patent right within a reasonable time, it was held that time was material, and that an offer to perform in fifteen months was too late.

— Hon. A. B. Thornell, Judge. Action to recover damages for injuries to the plaintiff’s horse, by reason of the alleged negligence of the defendant in constructing an insufficient culvert in a street of the city, which caused the street to overflow and, become obstructed with mud, rubbish, stones, bricks, and other refuse matter. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. The defendant appeals. —

— Hon. Marcus Kayanagh, Judge. This action is upon a written lease signed by the plaintiff and the defendants, whereby the plaintiff leased to the defendants certain lots for use as a brickyard for three years ending January 1, 1887.

<p>Appeal from Polh District. Court — Hon. Charles A. Bishop, Judge.</p> <p>Proceedings to set aside a decree. The facts are stated in the opinion. —</p>

— Hon. J.H. Preston, Judge. Action in equity to subject certain real and personal property to the payment of judgments claimed by the plaintiffs. From a decree in favor of the plaintiffs, the defendants F. D. Weaver and Nancy L. Weaver appeal. —

— Hon. Marcus Kavanagh, Jr., Judge. This is an action in equity by which the plaintiff, who is a resident and taxpayer in the independent district of Des Moines, seeks by proper decree to enjoin the said school district and the other defendants, who are its directors, secretary and treasurer, from carrying out and performing an alleged contract with the defendant B\ S. Whiting, a member of said board, by which the said board employed said Whiting to superintend the erection…

<p>Appeal from Scott District Court. — Host. W. F. Beannan, Judge.</p> <p>Indictment for burglary. Verdict of guilty, and a judgment from which the defendant appealed.—</p>

— Hon. N. W. Macy, Judge. - A BEHEAEiNG- having been granted, this case is again before us for consideration. The former opinion will be found in 50 N. W. Rep. 64.

— Hon. Charles D. Leggett, Judge. Action upon certain promissory notes, and for the foreclosure of a mortgage on certain real estate given to secure the payment of the notes. The notes and mortgage were -executed by the defendant Dennis Haney to secure quite a large amount of indebtedness to the bank.

— Hon. George H. Care, Judge. Action in equity to quiet in the plaintiff the title to certain real estate. A demurrer to the petition haying been filed and overruled, the defendants refused to further plead, and a decree was rendered in favor of the plaintiff. The defendants appeal. —

— Hon. G-eorqe H. Cade, Judge. Action in equity by the plaintiff, claiming to be the owner of certain land, to enjoin the defendants from selling the same on an execution issued on a judgment in favor of the defendant Litchfield and against ’ Johnson. Judgment and decree for the plaintiff. The defendants appeal. —

<p>Appeal from Harrison District Court. — Hon. Gr. W.. Wakerield, Judge.</p> <p>Action to recover damages for the alleged wrongful seizure and sale of property under a chattel mortgage. The defendant appeals. —</p>

<p>Appeal from Bes Moines District Court. — Hon. James D. Smythe, Judge.</p> <p>On April 7, 1891, J. H. Sturgis filed his petition showing that he is the father of Mary E. S. Johnson, then about seven years of age; that some years previous •she was adopted by Frank A. and Amelia S. Johnson both of whom are now deceased; that said minor needed the care and protection of the petitioner, and that he was a householder, and able to care for said child; that .at the time of the decease of said Johnson, which was since the decease of his wife, he claimed to be a resident of Des Moines county, Iowa; that said child has no legally appointed guardian, and can not be so well taken care of as by the petitioner, — wherefore he asks “that he may be appointed guardian of the person of .said minor child.”</p> <p>On the eleventh day of April following, D. W. Diggs filed a remonstrance, stating that said minor child was adopted by Mr. and Mrs. Johnson some years previous, by contract with the petitioner, and according to the laws of Dakota, in which territory said parties then resided; that said Johnson and wife took the child, and gave it their surname, according to the contract; that by the laws of Dakota said Sturgis was relieved of all care of said child, and responsibility to and for said child, and thereafter had no right over it. He sets out the statute of South Dakota authorizing the court to appoint guardians of “minors who have no guardian legally appointed by will or deed, and who are inhabitants or residents of the county, or who reside out of the territory, and have estates within the county.” He alleges that Mr. Johnson executed his last will, which was duly probated in the Des Moines district court, wherein he nominated the remonstrator, D. W. Diggs, to be guardian of the person and property of said child, and that in pursuance thereof he took charge of said child, and then had her at his home in South Dakota. He made further statements as to his ability and qualifications to care for said child as guardian, and urged that for the reasons stated the district court of Des Moines county had no jurisdiction to appoint another as guardian.</p> <p>The petitioner filed a motion to strike said remonstrance, and thereafter D. W. Diggs filed objections to the appointment, of said Sturgis as guardian, setting forth the adoption of the child by Frank A. Johnson, and the appointment of the objector in the will; that no facts were shown that he is not a proper person to take charge of said child; that he had had charge of her since the death of Mr. Johnson; that he had filed his petition in this court for letters of guardianship, as provided in said will, — and prayed that evidence might be heard, showing that the welfare of said child would be best promoted in his custody. An order was entered sustaining the motion of the petitioner to strike from the files the remonstrance of Mr. Diggs, and appointing the petitioner guardian of the person of said minor from which D. W. Diggs appeals. —</p>

<p>Exemptions: property purchased with pension money. Property purchased by a pensioner with his pension money is exempt from the payment of his debts; and if he gives the money to his wife, and she buys property with it, such property is in her hands exempt from his debts, whether the gift be regarded as a valid one or not. Robinson, O. J., and Kinne, J., dissenting.</p>

<p>Eight of Way: deed: constuuctioit. By a written agreement, signed "by the parties hereto, the plaintiff, in consideration of the right of way “granted” to it for a railroad track to connect its fail-grounds with the main line of an established railroad, agreed to pay to the defendant two hundred dollars per year for the term of five-years. Held, that it was a conveyance of a perpetual right of way, and not a mere lease for the term of five years.</p>

<p>1. Assault With Intent to Commit Manslaughter: statutory offense. Assault with, intent to commit manslaughter- is one form of crime defined "by section 3876 of the Code, which provides that “if any person assault another with intent to commit any felony or crime punishable by imprisonment in the penitentiary * * * he shall be punished,” etc.</p> <p>2. Indictment: date of presentment: presumption. Where the indorsement upon an indictment recited that it was presented to the court “at the May term, 189-, ” and was filed the eighth day of May, 1891, held, that the presumption was that it was found and presented at the May term, 1891, and that a motion to vacate it because it did not show the year and term at which it was found was properly overruled. '</p> <p>3. Criminal Law: change of venue: certification of papers. When a change of venue is taken in a criminal case, it is the duty of the clerk, under section 4377 of the Code, to transmit the original indictment and minutes of testimony taken before the grand jury to the court where the case is to be tried, and no certification of these papers by him is required. Sections 4293 and 4294 of the Code, providing that these papers shall be filed by the clerk “and remain in his office as a record,” are not, when properly considered, in conflict with the above.</p>

<p>Appeal from Linn District Court. — Hon. J. H. Peeston, Judge.</p> <p>Action to recover damages resulting from the death of the plaintiff’s intestate, which is alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment in favor of the plaintiff. The defendant appeals. —</p>

— Hon. W. F. Conbad, Judge. Action to recover the possession of a horse. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal. —

— Hon. James D. Smythe, Judge. Action on the official bond of a special administrator. There was a trial by the court and a judgment in favor of the defendants. The plaintiff appeals.—

— Hon. H. C. Traverse, Judge. Action to enjoin the defendants from foreclosing a chattel mortgage executed by the plaintiffs to them October 31, 1888, on their stock of merchandise in Pleasant Plain, Iowa, to secure the payment of one thousand, seven hundred and sixty-five dollars and twelve cents, due to the defendants, and five hundred and forty-one dollars and ninety-two cents, due to Beiderbecke & Miller, and to cancel said mortgage, and for damages.

<p>Appeal from Union District Court. — Hon. H. M. Townee, Judge.</p> <p>Action to recover for taxes paid. There was a judgment for the plaintiff, and the defendant appeals.</p>

— Hon. Dell Stuart, Judge. Action in equity to decree a deed absolute on its face to be a mortgage, and to redeem therefrom. From a judgment and decree for the plaintiff, the defendant appeals. —

— Hon. E. L. Burton, Judge. The plaintiffs are husband and wife and judgment debtors to defendant M. A. íáteffen. E. B. Kinnick is a codefendant, and is sheriff of Davis county. The judgment against the plaintiffs was entered in September, 1877.

— Hon. 0. D. Leggett, Judge. This controversy involves the ownership of two hundred and sixty-five shares of the capital stock of the Davis County Bank. The plaintiff is a stockholder in the bank, and claims to be the owner by purchase from one John Small. The defendant, Lovett, is cashier of the bank, and he el aims that the shares of stock were purchased of Small by the said bank. After the action was'commenced, S. Gf.

— Hon. W. H. Tedeord, Judge. Action at law to recover the sum of three hundred and twenty-five dollars and ninety cents, which the plaintiff alleges to be due to him from the defendant on account of a breach of contract by which the defendant sold to the plaintiff a one-sixth interest in a partnership known as the “Occidental Goal Company.” There was a trial to the court, and a judgment for the plaintiff. The defendant appeals. —

<p>Appeal from Monroe District Court. — Hon. E. L. Burton, Judge.</p> <p>This is a proceeding in probate to ascertain and settle the distributive share of claimants to the estate of a person deceased. From a judgment in favor of the defendants, the plaintiff appeals. —</p> <p>The husband can not dispose of his personal property by will so as to deprive the wife of her distributive share. Ward v. Wolf, 52 Iowa, 465; Linton v. Crosby, 61 Iowa, 401. These decisions are based on section 2452 of the Code, which is to the effect that, the widow’s share can not be affected by any will of her husband, etc. It is held that the term ‘ ‘widow’s share” refers to her share of personal as well as real estate, and, therefore, she could claim one third of the personal property in opposition to the husband’s will. The decision establishing this rule, Ward v. Wolf, supra, was approved by a bare majority of the court (Seevers and Day, JJ., dissenting), and the rule of property established by it is believed to be different from that of any other country subject to the common law. The rule of the common law has always been, and still is, even in this state, that the wife has no legal interest in her husband’s personal property, but the same is subject to his absolute control during their joint lives. To take away from the husband, therefore, the power to do by will that which he has the full and absolute power to do by deed, is the only instance known to the law in which there is an absolute right of control during life, and an equally absolute prohibition as to control by will. The question in this case is, does the same rule apply to the will of the wife. Section 2452, says, that the widow;s share shall not be affected by any will of the husband, etc.' There is no express declaration of the statute that the husband’s share shall not be affected by any will of the wife, but we are referred to section 2440, as bringing the husband within the provisions of section 2452. This declares “that all the provisions made in this chapter in regard to the widow of a deceased husband shall be applicable to the surviving husband of a deceased wife.” In Wilson v. Breeding, 50 Iowa, 633, the court holds, that this provision of section 2440 is applicable to real estate only. In Houston v. Lane, 62 Iowa, 291, the court holds that section 2440 renders section 2452 applicable to the husband of a deceased wife, but this case evidently related to real estate, and the decision, therefore, is not inconsistent with what is stated on that point in Wilson v. Breeding, supra. The husband is estop-ped in the present case by the facts alleged in the second paragraph of appellant’s pleading, which shows: First. Knowledge of the will by Jones, and that he made no objection thereto. Second. Expression by him of consent and acquiescence, and that she was thereby induced to make no other disposition of her property. Third. That Jones received and accepted from the testator during her lifetime a check for the one thousand dollars bequeathed him by the will. Fourth. That, after the death of the testator, he cashed the check and obtained the proceeds of the same. Hainan v. Iowa Legion of Honor, 78 Iowa, 240. Section 2203 of the Code has no application to this case. Houston v. Lane, 61 Iowa, 291, is not in conflict •with, the position of the appellants in this case. That case relates in a great degree to real estate, and in regard to that acts constituting an estoppel as to personal property would not have such bearing. As for the provisions of section 2452, they only constitute a general rule as to property, and there is no reason why the general rule contained i'n this section should not be subject to the law of estoppel to the same extent that other general rules affecting property are subject to that law. Payment by the bank of the check given the husband was necessary to complete the gift, and the death of the wife before payment operated in law as a revocation. 8 Am. and Eng. Encyclopedia of Law, title, Gifts, 1321, 1344; Burke v. Bishop, 21 Am. Rep. 568; First National Bank v. Dubuque B’y Go., 52 Iowa, 378.</p> <p>This court did not have before it in Wilson v. Breeding, 50 Iowa, 633, the subject raised by the appeal in this case. The question we are now arguing is, whether the wife has power to dispose of her personal property by will to a third person, which will be binding upon her husband after her death. In Houston, Administrator, v. Lane, 62 Iowa,-291, we have a decision directly in point holding that section 2440 applies to a surviving, husband of a deceased wife. Section 2440 of the Code makes sections 2436 and 2452 applicable to the surviving husband of a deceased wife. These are all found in the same chapter 4, and leave no room for doubt that the husband is not bound by the will of the wife disposing of her personal property. The rule is very well settled in this state, that the right of the husband to his distributive share of one-third can not be defeated short of his consent to take under the will being actually entered upon the records of the court, within six months from receiving notice. The facts relied on for estoppel in the case at bar are not néarly so strong as the facts referred to in the case of Houston, Administrator, v. Lane, supra. It is now held that the delivery of a check either inter vivos or donatio causa mortis operates, eo instanti, as an assignment or transfer of the money in the bank called for by the check, and that its binding force does not depend upon the collection of the money before the death of the drawer, or upon a presentment and acceptance of the check before drawer’s death. 2 Morse on Banks and Banking [3 Ed.], section 548, 549, 550. Morse does not agree with Williams on Executors, but with Grant on Banks and Banking [3 Ed.], 107.</p>

— Hon. J. H. Preston, Judge. The defendant is the treasurer of Cedar county, and this action is to recover the amount of two warrants issued by the board of supervisors of Cedar county, and presented to the defendant for payment, and payment refused.

— Hon. William: I. Babb, Judge. Action in equity to restrain tbe defendants, the incorporated town of Cincinnati and its council and street commissioner, from removing or destroying-certain buildings, fences and trees, and for general equitable relief. The cases were tried and submitted together in the district court. Prom a decree in favor of plaintiffs, the defendants appeal. —

— Hon. H. M. Towner, Judge. Action by the plaintiff, as administratrix of John Butler, deceased, for damages arising from the killing of said Butler by the defendant. There was a trial to a jury, resulting in a verdict and judgment for the plaintiff. The defendant appeals. —

— He®. J. W. Harvey, Judge. Action to recover four hundred and twelve dollars on account for goods sold and delivered November 15, 1889. The plaintiffs seek to charge the defendants with said goods upon two grounds, namely, that they were sold to them as a copartnership, and that they were purchased of the plaintiffs by McCoy on credit, in pursuance of a conspiracy between the defendants to defraud the plaintiffs and others.

Appeals .from Lucas District Cowrt. — Hon. W. I. Babb, Judge. Held: that there was no legal question involved in Mashburn v. City of Bloomington, 32 Ill. App. 245, relied on by appellant.

— Hon. W. F. Oojírad,, 1 Judge. The parties are corporations, the plaintiff being-organized under the laws of Ohio, and the defendant under the laws of Iowa.

<p>Promissory Note of Corporation: signature by one as presi- / DENT: CONSTRUCTION: PAROL EVIDENCE INADMISSIBLE TO EXPLAIN. A promissory note reading "we promise to pay,” etc., and containing no reference in the body of the note to the character or capacity of the makers, was signed "Dubuque Mattress Co., John Kapp, Pt.” Held, that, upon the face of the -note, Kapp wasjiersonally liable, and that oral testimony was inadmissible to show that he was at the time president of the company, and authorized to sign notes for it, that the note was given for goods sold to the company, and was intended to bind it alone, and that the payee knew that fact when he took it. —Kinne and Granger, JJ., dissenting.</p>

— Hon. L. 0. Hatch, Judge. The defendant was charged with the 'crime of nuisance, m obstructing a public highway. He pleaded a former trial and acquittal of the same offense. There was a trial, resulting in a verdict for the defendant. The state appeals. —

— Hon. W. H. Ted-ford, Judge. Action to recover damages of the defendant, a druggist, for selling and putting up carbolic acid instead of spirits of niter, by reason of which mistake the acid was given to the plaintiff’s mare, causing her death. Verdict and judgment for the plaintiff. The defendant appeals. —

— Hon. D. Ryan, Judge. This is an appeal from an order of the district court overruling an application for the allowance of interest on an award of damages made to the plaintiff, by reason of condemnation proceedings for right of way over his farm for the defendant’s railroad. The plaintiff appeals. —

— Hon. J. D. Gteeen, Judge. The defendants are William G-. Peet, as executor, and also individually, and Matilda Peet. Matilda Peet is the widow of James M. Peet, deceased. The other defendant, William G-. Peet, is a son, and the plaintiff is a daughter, of said James M. Peet, who died testate, and this is an action in chancery to construe the will and an antenuptial contract.

— Hon. W. H. Tedford, Judge. Action to recover double the value of a colt alleged to have been killed by a locomotive engine of the defendant in consequence of a failure on its part to maintain a sufficient fence at a point on its railway where it had a right to fence. There was a trial by jury, and a verdict and judgment in favor of the plaintiff. The defendant appeals. —

— Hon. H. M. Townee, Judge. This is an action in equity, by which the plaintiff demands that the defendant be decreed to issue and deliver to the plaintiff a fire insurance policy in pursu-' ahce of an alleged agreement for insurance upon certain buildings and property. It is averred in the petition that after the right to a policy had accrued to'the plaintiff the property was destroyed by fire, and judgment is demanded for the amount of the loss.

— Hon. John W. Harvey, Judge. Action on a policy of fire insurance. There was a trial by jury, and a verdict and judgment in favor of plaintiff. The defendant appeals. —

— Hon. H. C. Traverse, Judge. Samuel Simmons died about March, 1888, in Wapello county, without issue. The plaintiffs in this isqit were his brother and sister, and the defendant L. A. Middleton was his stepson.

— Hon. C. F. Couch, Judge. Action against the defendant for services rendered as an attorney. Answer in denial. There was a trial to tbe court and judgment for the defendant, from which the plaintiff appeals. —

— How. A. W. Wilkinson, Judge. Action to recover double the value of a colt alleged to bave been injured and rendered worthless by a locomotive engine of the defendant at a point onits railway where the right of way was not fenced, but where'the right to fence existed. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals. —

— Hon. C. M. Waterman, Judge. Action in equity to quiet title in the plaintiff to certain lands as against an attachment levied thereon in favor of the defendant. A decree was entered dismissing the plaintiff’s petition, from which he appeals.

The plaintiffs at the suit of William Drake, were enjoined from maintaining a liquor- nuisance on certain premises. The injunction was issued January 14,1888. On the twenty-eighth day of March, 1892, contempt proceedings were instituted for a violation of the injunction, and on the fourth day of April, 1892, the plaintiffs were attached, and brought before the court, and a hearing set for April 9, 1892.

<p>Appeal from Guthrie District Court. — BLon. O. B. Ayehs, Judge.</p> <p>Action for personal injuries. From a judgment for the defendant, the plaintiff appeals. — Reversed.</p>

— Hon. John J. Ney, Judge. Action to recover damages because of a personal injury, received by the plaintiff by driving a team and wagonette off an embankment in a street or road in the city of Cedar Palls. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals. —

— How. W. R. Lewis, Judge. ActioN to recover the possession of specific personal property. There was a trial by the court without a jury, and a judgment in favor of the plaintiff. The defendant appeals. —

— Hon. W. R. Lewis, Judge. Action in equity to recover an amount alleged to be due for services rendered, and for board furnished to the defendant and to others on the defendant’s account. The defendant seeks to recover on a counterclaim for family supplies furnished. There was a trial on the merits, and a decree in favor of the plaintiff. The defendant appeals. — Affirmed.

— Hon. L. 0. Hatch, Judge. Action on three notes, and to foreclose a mortgage securing the same. Judgment -and decree for the plaintiffs, and they appeal. —

— Hon. S. M. Weaver, Judge. The plaintiff, a senior lienholder, as mortgagee, brings this action to enforce a redemption from a sale on execution upon a judgment in favor of the defendants which is junior to her mortgage-, and for other relief incident to the redemption. A decree was entered dismissing the plaintiff’s petition, from which she appeals. —

<p>Appeal from Buchanan District Court. — Hon. D. J. LerehaN, Judge.</p> <p>ActioN to foreclose a- mechanic’s lien. From a decree for the plaintiffs, the defendant appeals. —</p>

— Hon. D. R. Hind-man, Judge. Action upon a promissory note. There was a trial by jury, resulting in a verdict and judgment for the defendant. The plaintiff appeals. —

— Hon. J. L. Stevens, Judge. This is an action in equity, by which the plaintiff seeks to enjoin the defendants, the city of Marshalltown and George Barstow, street commissioner, from constructing a crossing over Main street, in said city. A temporary injunction was granted, without notice, at the commencement of this suit. An answer was filed by the said city, and at the same time a motion was filed to dissolve the temporary injunction.

— Hon. L. 0. Hatch, Judge. This is a proceeding in probate to establish a claim against the estate of a person deceased. From an order allowing the claim as one of the third class, the administratrix appea-ls.

— Hon. F. B. Gaynor, Judge. Action to recover the value of mortgaged chattel property. There was a judgment for the plaintiff and the defendants appeal. —

— Hon. George W. Wakefield, Judge. Proceeding- under the bastardy act. Prom a verdict of guilty, and a judgment for maintenance, the defendant appeals. —

— Hon. L. O. Hatch, Judge. ActioN at law upon a policy insuring one A. V. Lewis against the loss by death, caused by disease or accident, of a certain bay stallion. There was a trial by jury, and a verdict and judgment for the plaintiffs. The defendant appeals. —

— Hon. John L. Stevens, Judge. Action to recover possession of certain steers. There was a trial to the court, resulting in judgment for the' plaintiff. The defendant appeals. The plaintiff claims possession, of thirty-seven head of steers by virtue of' a chattel mortgage thereon, of date February 25, 1885, given by L. W. Fisk & Son, which mortgage was duly filed for record, and recorded on the same day.

— Hon. S. H. Fairall, Judge. Indictment for embezzlement. The court directed a verdict for the defendant, and the state appealed.—

— Hon. S. M.. Weaver, Judge. The plaintiff sues to recover of the defendants five hundred and twenty-two dollars and eighty-nine cents, a balance claimed to be due to him after deducting charges from the sale of a car of forty-eight hogs shipped by him, in his own name, to the defendants as commission merchants, and sold by them. The defendants admit the receipt and sale of the hogs, and that the amount claimed was received from the sale, after deducting charges.

— Hon. W. A. Hoyt, Judge. Action to recover damages to growing timber by reason of a fire alleged to have been set out by one of the defendant’s locomotive engines while drawing a train of cars on the defendant’s railroad. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. The defendant appeals. —

— Hon. John L. Stevens, Judge. Action to compel the defendants to construct a crossing over certain railway tracks in a street of the plaintiff. There was a trial by the court, and a judgment in favor of the plaintiff. The defendants and an. intervenor appeal. —

— Hon. Geobge H. Cakb, Judge. The plaintiff brought suit against the defendants L. Y. Keeney et al. on account, and aided the same by attachment, by virtue of which it seized a quantity of personal property and real estate. Such proceedings were had that on the sixth day of January, 1891, a default and judgment were entered for the plaintiff against the defendants for two hundred and seventy-three dollars and seventy-six cents and costs.

— Hon. W. A. Hoyt, Judge. Action to enjoin the obstruction of an alleged public highway.

— Hon. D. E. Hind-man, Judge. Action on a promissory note. There was a defense of former adjudication, and a counterclaim for the value of a horse. From a judgment for the plaintiff, the defendant appeals. —

— Hon. A. B. Thornell, Judge. The plaintiff commenced an action of forcible detainer before a justice of the peace in which he demanded that the defendant be removed from certain real estate owned by the plaintiff. The ground of the action was that the defendant was a tenant wrongfully holding over after the termination of a lease of the premises. There was a judgment for the plaintiff. The defendant sued out a writ of error to the district court.

— Hon. S. M. Weaver, Judge. Action to recover the amount of a promissory note. The defendants Crist and Smith plead a failure of consideration, and, in a cross petition, demand judgment against their codefendants, Springer & Willard. There was a trial by jury, and a verdict and judgment in favor of Crist and Smith against the plaintiff and their codefendants. The plaintiff and Springer & Willard appeal. —

— Hon. Lot Thomas, Judge. This is an action in equity, and it involves the rights of the creditors of Gr. W. Miller to priority in the distribution of the proceeds of certain personal property. There was a full hearing on the merits, and a decree for the plaintiffs. The defendants appeal.—

— Hon. John C. Sherwin, Jndge. Action in equity for the foreclosure of a mortgage on real estate. A receiver of the mortgaged premises was appointed in vacation, a motion for his discharge was afterwards made and sustained, and from the order sustaining the motion the plaintiff appeals. —

<p>1. Assignment of Wages: suegtoienoy op writing: intention. Where an employee of a railroad company addressed a letter to one as auditor, without naming the company for which he was auditor, and requested him to pay his salary for the month just past, and for the next six months to come, to one B., on account of his indebtedness to B., and the company recognized this as an assignment of the employee’s wages to B., and had paid his wages to B. for several months, when it was garnished as the debtor of the assignor, held, that though the writing was informal as an assignment, yet, having been intended, accepted and acted upon as an assignment of the assignor’s wages to B., it was effectual for that purpose.</p> <p>2. -r: VALIDITY AS TO WAGES YET TO BE EARNED. An assignment of wages yet to be earned is good as against the1 claims of attaching creditors, if accepted, and if, at the time it is made, there is an existing engagement or employment by virtue of which wages are being, and in the future may reasonably be expected to be, earned, even though there is no contract or fixed time of employment.</p>

<p>Liquor Nuisance: injunction: stipulation: delay in entey or decebe: validity: contempt. In an action to enjoin one from selling intoxicating liquors contrary to law, and for an abatement of • the nuisance, the prayer of the petition was for a temporary injunction, and that it be made perpetual on final hearing. The defendant having pleaded guilty to the charge, and stipulated for judgment and the issuance of a temporary injunction, as prayed in the petition, the court made the entry on the records of the court, “Judgment as per stipulation," but there was no decree until a year and seven months thereafter, when a decree for a permanent injunction was signed. In proceedings against said defendant for contempt for the violation of said injunction, held, that, under the stipulation and plea of the defendant, the court would have been warranted in entering a decree-for a permanent injunction when said stipulation was filed, and, the case continuing to stand on the calendar undisposed of, the court did not lose jurisdiction to enter said decree by reason of the delay. The plaintiff herein having been arraigned for a violation of said decree after it was signed, and writ issued, the fact that the decree was-dated back to the day the plea was entered was immaterial.</p>

— Hon. George H. Carr, Judge. Action on a policy of fire insurance. There was a trial by jury, and a verdict and judgment in favor of the plaintiff. The defendant appeals. —

— Hon. E. L. Burton, Judge. Action to recover for personal injuries received by the plaintiff by jumping from one of the defendant’s passenger trains while in motion, because, as is alleged, •of his being willfully and negligently urged and compelled by the defendant’s brakeman to do so. The defendant answered, denying every allegation in the petition. The case was tried to a jury, and a verdict for the-plaintiff and answers to certain interrogatories returned.

— Hon. C. H. Lewis, Judge. Action in equity to enjoin tbe defendants from foreclosing a certain chattel mortgage as to certain of tbe property described therein, claimed by the plaintiff as exempt, and for an accounting as to the amount due on the mortgage, for judgment for one hundred and sixty-four dollars, with interest, to be credited on the mortgage, and for leave to redeem the property claimed as exempt by paying the balancé, if any, found due on the mortgage.

<p>Appeal from Shelby District Court. — Hon. Walteb I. Smith, Judge.</p> <p>Action in equity to recover the value of building materials sold, and to establish and enforce a mechanic’s lien. There was a hearing on the merits, which resulted in a decree in favor of the plaintiff as against the'defendant E. M. Offineer, and against the plaintiff and in favor of the defendant R. E. Offineer. The plaintiff appeals. —</p>

— Hon. A. B. Thor-nell, Judge. This is an action in equity to quiet the title of the plaintiff to certain real estate in Mills county. There was a decree for the plaintiff, and the defendants app eal.

— Hon. H. E. Deemer, Judge. Plaintiff, .a judgment creditor of A. M. Dunn, prosecutes this action in equity to set aside a warranty deed from A. M. Dunn to William M. Dunn for certain lands, executed May 28j, 1880; also to set aside a deed of conveyance for said land from William M. Dunn to Sarah E. Dunn, executed November 5, 1885; and that said land be subjected to the payment of his judgment.

— Hon. A. R. Dewey, Judge. About the first of November, 1890, there was ■found in a cattle guard on the defendant’s road a crippled steer, which was taken out and drawn to a place on the public highway near where the same is crossed by the defendant’s road, and left there dead.

<p>1. Sale of Stallion : interpretation op contract. A stallion five years old was sold with a warranty that he would prove an average breeder, but it was agreed that he should not be regarded as fully tested until he should have been tried two years; also that the seller should not he responsible on account of disease or accident to the horse after leaving his stable. Held, that if the horse was sound when sold, the contract imposed upon the purchaser the risk of his living for the two years required to make the test, and that, since the horse died in a little more than four months, the test necessary to show a breach of the warranty became impossible, and no liability therefor could be asserted. ,</p> <p>2. -: FRAUDULENT REPRESENTATIONS: SCIENTER. One who Sells a stallion upon representations that he is sound and of pure Norman blood, is not liable for such representations, though false, unless he knows at the time that they are false; it is not enough that he does not know them to be true.</p> <p>3. -: WRITTEN CONTRACT: FALSE REPRESENTATIONS: EVIDENCE. It is not the law of this state that, where there is a written contract of sale, oral testimony is not admissible to prove false representations whereby the sale was consummated.</p> <p>, 4. --•: FRAUDULENT REPRESENTATIONS: 'EVIDENCE. No action fOr fraud can be maintained upon a representation, made by the seller of a stallion, that he will not .produce sorrel colts, as it is necessarily a mere matter of opinion.</p>

<p>1. Accident Insurance: compliance with conditions op policy: BURDEN op proop. In an action upon a policy of accident insurance which contains conditions, the violation of which would defeat a recovery, it is not incumbent upon the plaintiff to allege and prove compliance with such conditions on his part, but noncomplianee is a matter of defense, to be alleged and proved by the defendant.</p> <p>2. -: -: evidence. The assured was killed by falling from a street car, and the defense was that he came to his death by a violation of the conditions of the poliey, in that he was not exercising due care for his personal safety, and that he was intoxicated. The jury having found specially that the insured was not intoxicated at the time of the accident, and that he was using due care, and the evidence being so conflicting that a disinterested person who read the testimony might have doubts as to the fact, held, that a verdict for the plaintiff would not be disturbed by the supreme court. Riding upon tíie rear platform of a street car is not in itself such a want of care as to defeat a recovery in such case.</p> <p>3. -: -: -. In such case a physician, who testified that he had se.en the assured at the hospital, was not permitted to state whether he noticed anything about his breath indicating intoxication. jBeld, that this was not error, since the time when the insured was seen was not shown; and as the defendant did not renew the question after such time was shown, he has no ground for complaint.</p> <p>4. 'Verdict: failure to answer special interrogatories: effect. A general verdict is good, even though special interrogatories are not answered, if it has support without such special findings. Accordingly, where the jury reported that they could not agree upon two of the special interrogatories, it was not error for the court to direct them, if possible, to agree upon the others, and to return their, findings with the general verdict, where the two interrogatories in question did not relate to ultimate facts, and no possible answers to them would have been ground for setting aside the general verdict.</p>

— Hon. N. W. Maoy, Judge. L. Whited died testate in April, 1889, leaving Mary A. Whited as Ms widow. The following are the provisions of his will in her favor: “Second.

<p>’Evidence: -taken subject to objection: eraotioe. Where, upon trial to the court, certain evidence is admitted subject to an objection, and the objector does not except, and no other action is had upon the point, the objection is waived, and can not be renewed in the supreme court.</p>

<p>1. Chattel Mortgages: sumtciency ov description. Where the description of property in a chattel mortgage was, “One "bay stallion with small white star in forehead, two years old, past; one chestnut sorrel stallion with white tail and mane, with small white star in forehead, seven years old,” and the instrument described the mortgagor as a resident of P. county, and had a provision against removing the property from that county, but stipulated that, in case of a foreclosure, the sale should be at a place named in C. county; and it also contained a statement that the mortgagor was the owner of the property; and it appeared that the property was on the farm of the mortgagor, in P. county, and was the only property he had answering to said description, held, that the description was sufficient to make the record of the mortgage constructive notice to subsequent purchasers.</p> <p>2. Livery Stable .Keeper: hen: waiver: revival. Where one who had the possession of certain horsos had them kept in a livery stable and was indebted for their keeping when taken away by a mortgagee, by virtue of his mortgage, but the mortgagee did not then pay the stable keeper, nor take an assignment of his claim and lien, 7ieW,_that the lien was waived, and that it was not revived by the subsequent payment bythe mortgagee, of the amount due the keeper, and the assignment of the lien to him, it not appearing that the assignment was executed pursuant to any agreement made when the horses were taken away.</p>

<p>Surety: notice to creditor to sue: discharge. Under sections 2108 and 2109 of the Code, when a creditor, upon due notice by a surety, fails for ten days either to sue the principal or to permit the surety to do so, the-latter is absolutely discharged, and the question of prejudice by the delay is immaterial. Accordingly, where there were two principals, and at the time the notice was given by the surety the creditor had already begun suit on the note, and had served notice thereof upon the surety and one of the principals, but the other principal was not served, though he afterwards accepted service and waived time, but it was more than ten days after the notice given by the surety, held, that, as to the principal last served, there was a failure to comply with the notice, and that the surety was discharged.</p>

— Hon. J. E. F. McG-ee, Judge. The plaintiff commenced an action against the defendant, Finney, and sued out an attachment. The Union Pacific Railway Company was garnished as a supposed debtor to Finney. The garnishee was adjudged to be in default for failure to answer. A motion was made to set aside the default. The motion was overruled and the railway company appeals.—

— Hon. S. M. We ayer, Judge. Action against the defendants, as commission merchants, for the balance claimed to be due from them as proceeds of sales of cattle shipped by the plaintiff. There was a trial to the court, resulting in a judgment for the plaintiff. The defendants appeal.

<p>Contract: re-formation: grounds for.' Where a petition for the reformation of a written contract alleged that the plaintiff knew, at the time the contract was executed, that one of the elements of the agreement was omitted therefrom, and requested that it be inserted, but that the defendant refused to have it inserted, but orally agreed that the same should be binding upon him the same as if inserted in the written contract, held, that it was demurrable on the ground that the facts stated did not entitle the. plaintiff to the relief demanded; such relief being warranted only when, through fraud, accident or mistake, the written contract fails to express the real agreement of the parties.</p>

— Hon. Scott M. Ladd, Judge. Action to recover damages alleged to have been caused by the neglect of the defendant, as county recorder, to index, within due time, a chattel mortgage filed in his office for record. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiff appeals. —

— Hon. Soott M. Ladd, Judge. Action in equity for the foreclosure of a mechanic’s lien. Judgment dismissing the plaintiff’s bill, and he appeals. —

— Hon. Charles H. Bishop, Judge. Action to recover the amount due on two promissory notes. There was a trial to the court, without the intervention of a jury, and a judgment in favor of the plaintiff. The defendants appeal. —

— Hon. J. H. Henderson, Judge. Action to recover possession of two promissory notes executed by the plaintiff, .for two hundred dollars each, payable to G-. B. Morse, or bearer, January 1, 1889.

— Hon. J. H. Applegate, Judge. Action by the plaintiff j a commissioner of insanity of the defendant county, against it, for services as such commissioner. Trial to the court. Judgment for the plaintiff, and the defendant appeals. —

— Hon. Scott M. .Ladd, Judge. Action at law, aided by attachment. The Chicago, Milwaukee & St. Paul Railway Company was garnished as a supposed debtor of Callopy, the defendant in the action. Judgment was rendered for the plaintiffs against the defendant. The garnishee answered that it was indebted to Callopy in a certain amount, and judgment was rendered against the garnishee for the amount admitted to be due. The defendant and garnishee appeal. —

— How. W. I. Babb, Judge. Action to determine the right to the office of sheriff of Henry county, Iowa, as between the relator Jacob Perine and the defendant George Yan Beek, and for certain other relief.

— Hon. F. R. Gaynor, Judge. Ou the ninth day of September, 1891, the grand jury of Sioux county returned an indictment, in due form, charging the defendants with maintaining a nuisance by keeping and controlling a building for the sale of intoxicating liquors.

— Hon. W. A. Hoyt, Judge. Action to redeem from a tax sale. There was a ■decree for the plaintiff, and the defendants appeal.

— Hon. Scott M. Ladd, Judge. Action at law to recover possession of real estate. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal. —

— Hon.-Gr. W. Wakefield , Juclge. Action to recover an amount alleged to be due by virtue o.f a lease of farm land. After all tbe evidence bad been submitted, a verdict for tbe plaintiffs was returned, by direction of the court, and a judgment for two hundred and four dollars and costs, was rendered in their favor. Tbe defendant appeals. —

— Hon. N. W. Macy, Judge. Action at law, in three counts, to recover for services in purchasing hogs for the defendants. A verdict was returned for the plaintiff: for three thousand, seven hundred and eighty-five dollars and seventy cents; also certain special findings, which show that the verdict was rendered upon the second count of the petition. Judgment was entered on the verdict for three thousand, two hundred and sixty-one dollars and eighteen cents, with interest.

-^-Hon. D. Ryan, Judge. Motion for judgment against Bliss, garnishee, as trustee of property willed to Blanche A. Briggs. Motion overruled. The garnishee discharged. The plaintiff excepts, and appeals. — Having in clear and unmistakable language vested the title to this property in Mrs. 'Briggs, under the fourth paragraph of the will, the testator could not ■divest her of such title, except by equally clear and unmistakable terms.

— Host. Scott M. Ladd, Judge. The defendant company operates a motor line of road from Sioux City to Riverside Park, a distance of about four miles. The next friend, by whom this suit is maintained, is the mother of Dora A. Curtis. The father of Dora was the holder of an annual ticket on the line of road as follows: “$25.00 $25.00 “Sioux City and Highland Park Railway Company. “Pass W. H. Curtis and family. Annual ticket.

— Hon. W. F. Conrad,. Judge. Action at law to recover from trie defendant, as a stockholder of . the Des Moines, Osceola & Southern Bailway Company. There was a judgment for the plaintiff, from which the defendant appeals. —

— Hon. G-eorg-e W. Wakefield, Judge. Frank Snowden was indicted for keeping a liquor nuisance. He gave a bond in the sum of five hundred dollars for his appearance to answer the indictment, with the defendant, Beebee, as surety. Snowden made default, and the bond was duly forfeited, and suit ordered to be brought thereon, which suit resulted in a judgment against the defendant for five hundred dollars, and costs amounting to seventeen dollars and fifteen cents.

— Hon. C. P. Holmes,. Judge. This is an action founded upon an order of the-railroad commissioners requiring the defendant tore-establish and maintain a station on its line of railroad at a place called “Leslie.” The district • court, after hearing the testimony of a large number of witnesses, entered a decree dismissing the petition. The^ plaintiff appeals. —

— Hon. G-bobge W. Wakefield, Judge, Action in equity to recover the amount due upon certain promissory notes, and to foreclose a real estate mortgage given to secure their payment. There was a hearing upon the merits, and a decree in favor of the plaintiff. The defendant, Joseph Bonard, appealed.—

— J. E. F. McG-ee, Judge. Agtioh on account to recover one hundred dollars for medical services. Answer denying generally. Trial and verdict and judgment for- the defendant, from which, the plaintiff appealed. Upon the appeal the case was reversed and remanded. See 80 Iowa, 245. After procedendo was filed, the defendant withdrew her answer, and filed a motion to dismiss, for the reason that the court had no jurisdiction.

— Hon. C. P. Holmes, Judge. Action by writ of certiorari to inquire into the legality of certain action of the defendant board with respect to the plaintiff college. Judgment was entered in the district court dismissing the petition, from which judgment the plaintiff appeals. —

— Hon. Ebank E. G-aynob, Judge. The defendant, William Thompson, was convicted of the crime of larceny, and adjudged to be imprisoned in the penitentiary at Anamosa for the period of sis months, and to pay the costs. From that judgment he appeals. —

— Hon. Scott M. Ladd, Judge. This is an action in equity against the defendant to discover alleged assets of the estate of one Frank Teabout, deceased, and to have her decreed to hold certain real property in trust for his estate. The decree, in part, found for the plaintiff, and, as to some of Ms claims, his petition was dismissed. Both parties appeal. —

— Hon. N. W. Macy,. Judge. The defendant was convicted of the crime of nuisance, alleged to have been committed by erecting and maintaining a building, and keeping for sale- and selling therein intoxicating liquors in violation of' law. From a judgment which required him to pay a fine and costs he appeals. The state appeals from so* much of the judgment as fixed the amount of the fee-for the county attorney. —

— Hon. GeoegeW. Wakeeield, Judge. This is an action between a farm tenant and his landlord. The plaintiff and another rented a farm of the defendant for the years 1888, 1889, and 1890.. The plaintiff’s partner in the enterprise was one Collins. The farm was cultivated by the plaintiff and Collins in the year 1888.

— Hon. D. R. Hind-man, Judge. The defendant was accused of the crime of keeping for sale and selling, in a place named, intoxicating liquors, in violation of law, was tried by a jury, and found guilty. From the judgment rendered on the verdict, he appeals. —

— Hon. Scott M. Ladd, Judge. Action in equity to cancel and set aside a, release and satisfaction, entered on the record, of a certain trust deed, executed by the defendant Maxwell to secure his certain promissory note, and for judgment and decree foreclosing said trust deed, and declaring the plaintiff’s lien superior to the interest or liens of the defendants. A decree was entered dismissing the plaintiff’s petition, from which he appeals.

— Hon. George W. Paine, Judge. Action on a promissory note, and for the foreclosure of a mortgage. There was a judgment for the defendant, and the plaintiffs appeal. —

— Hon. J. H. Pees-ton, Judge. The defendants were indicted for a nuisance. They demurred to . the indictment, and the demurrer was overruled. They stood on their demurrer, and, refusing to plead further, sentence was imposed. The defendants appeal. —

— Hon. Charles D. G-oldsmith, Judge. Certiorari to the defendants, as members of the board of supervisors of Calhoun county.

— Hon. W. F. Conrad, Judge. This is an action to recover the amount claimed to he due upon a policy of insurance on the life of David M. Twiss. The plaintiff herein is the beneficiary named in said policy. No defense was made in behalf of the defendant the Guaranty Life Association, and a judgment was rendered against it for the sum of two thousand dollars and interest, being the full amount claimed. The defendant the Southwestern Mutual Benefit Association made defense.

— Hon. Geokge W. Wakefield, Judge. Action in equity to recover the amount due on account of a promissory note, indorsed by defendant D. W. Braden, and to subject to its payment certain lands claimed by defendant Isaac K. Wood as assignee of Braden. There was a hearing on the merits, and a decree in favor of the assignee. The plaintiff appeals.

<p>-Appeal from Carroll District Court. — Hox. J. P. Conner, Judge.</p> <p>The plaintiff brought this action to recover damages for an alleged breach of the covenants of warranty in a deed. The defendant answered, admitting the-execution of the deed, denying every other allegation, and setting up a counterclaim for damages for an alleged breach of the covenants of warranty in a deed, executed by the plaintiff to him, for lot 1 and the east ten feet of lot 2, biock21, in the town of Carroll, Iowa. The breach claimed is that a certain building situated on said lots belonged to one Sprague. The plaintiff' replied, admitting the execution of the deed, and alleging that it was made in pursuance of a written contract, and that by mistake and oversight there was left out of the contract the reservation of the right of Sprague to remove the building; that, prior to the delivery of' said deed, the defendant released the plaintiff from liability by reason of said building, by agreement in parol, whereby the plaintiff was induced to deliver said deed. The plaintiff asked that the written contract be . re-formed, and that the reservation made with reference-to said building be inserted therein, and that the contract, so re-formed, be decreed to be a part of said deed. The case was tried as in equity, and, after the evidence was introduced, the plaintiff dismissed her1 cause of action without prejudice, and judgment was entered in favor of the defendant on his counterclaim for one hundred and eighty dollars, with interest at six per cent, from February 1, 1890, from which the plaintiff appeals. —</p>

<p>Appeal from Floyd District Court. — Hon. George W. Buddick, Judge.</p> <p>Action to recover for personal injuries caused by tbe negligence of defendant’s employees in failing to ring tbe bell of an engine running upon tbe defendant’s railroad. The cause was tried to a jury, and upon direction of the court a verdict was rendered for the defendant. The plaintiff appeals. —</p>

— Hon. J. K. Johnson, Judge. Action for personal injuries. There was a judgment for the plaintiff, and the defendants appeal. — ■