Volume 90 — Iowa Reports

<p>Replevin: both parties claiming ownership. Where "both parties to a replevin suit claim to own the property in controversy, the right oí possession depends upon the fact of ownership. (1)</p> <p>Non prejudicial instruction. Plaintiff sought to recover as to certain boohs which defendant disclaimed owning. There was an instruction that plaintiff could not recover as to those books unless demand therefor had been made upon defendant, and refused. There was no proof of demand, but plaintiff recovered nothing for said books. Held, not prejudicial to defendant. (3)</p> <p>Bemittitur: not objectionable, when. Defendant ean not complain because plaintiff remits so much of his judgment as is unsupported by the proof. (4)</p> <p>Conflicting evidence: review on appeal. Where the evidence, in a law action, conflicts, it will not be reviewed on appeal. (1)</p> <p>Note. — The numbers following each section oí the syllabus indicate what division of the opinion the section deals with,</p>

<p>Notice to Insurer: by recording mortgage. Recording a mortgage on insured proporty is not such constructive .notice to the insurer as to make its subsequent acceptance of premiums from^the mortgagor a waiver of conditions in the policy prohibiting mortgaging without the insurer’s consent. Under Code, section 1944, entry by the recorder simply gives constructive notice of the rights of the grantee to persons dealing with reference to the title of the property affected by the entry. (5)</p> <p>PRACTICE: ADMITTING TESTIMONY AFTER CASE IS CLOSED. Rests within the sound discretion of the trial court. (7)</p> <p>Practice in supreme court: motion to strike: notice. Amotion to strike will be overruled where no notice of its filing has been given. (2)</p> <p>Necessary recitals in abstract not supplied by bill op exceptions, A recital in the bill of exceptions, that it contains all the evidence given, received or offered, does not show that- the abstract is an abstract of all the evidence; and on such record, such questions, only, as may be determined without reference to the evidence, will be considered. (4)</p> <p>Assignments op error to be specipic. An assignment directed against instructions by number, only, and which points out no particular error, is insufficient. (6)</p> <p>Same. An assignment, that "the court erred in overruling the defendant’s motion for new trial,” which motion contains twelve grounds, does not properly raise the question whether special findings have support in the evidence. (6)</p>

Appeals from Cedar District Court. — Hon. J. H. Peeston, Judge. Actions to recover sums of money paid by the plaintiff for the support of the defendants in the hospital for the .insane at Mt. Pleasant. The actions were tried and submitted together to the court, without the aid of a jury, and a judgment was rendered in favor of the plaintiff, and against the defendant, in each case, for the amount demanded, and costs. The defendants appeal.

— Hon. Charles D. Leggett, Judge. Action for the recovery of specific personal property, of which plaintiff claims right of possession as absolute owner thereof. Defendant answered, denying that plaintiff was owner, or entitled to possession, of any part of the property in question, and alleging that she is the absolute owner, and entitled to retain possession thereof.

— Hon. S. F. Balliett, Judge. Action in equity to recover the amount due on certain promissory notes made by defendant, the Carver Coal & Mining Company, and other claims, and for ' the foreclosure of a mortgage' executed to secure their payment. The defendant, the Eagle Iron Works, filed an answer and cross petition, in which it claimed to be entitled to a mechanic’s lien on the mortgaged property, superior to that created by the mortgage of plaintiff.

— Hon. Lot Thomas, Judge, The plaintiffs are wholesale dealers in merchandise, and the defendants are a partnership composed of Thomas W. Rae and J ames Harker. They are retail dealers, and this action was brought against the defendant partnership, and the individual members thereof, for goods sold by the plaintiffs to the defendants. No defense to the claim of plaintiffs was made by the defendant partnership, nor by the defendant Thomas W. Rae.

— Hon. H. C. Traverse, Judge. Action to recover for personal injuries alleged to have been caused by the negligence of defendant in permitting snow and ice to accumulate on one of its sidewalks. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.—

— Hot. A. R. Dewey, Judge. The defendants signed and delivered to the plaintiff the following instrument: '“$450.00.

<p>Appeal from Decatur District Court. — Hon. W. H. Tedford, Judge.</p> <p>Action in equity to reform a deed. Judgment and: decree for plaintiff. Defendants appeal.</p>

— Hon. J. M. Casey, Judge. Action, aided by attachment to recover the amount of certain promissory notes. The writ of attachment was levied upon a stock of merchandise and upon real estate. A receiver was afterwards appointed to take charge of the attached property, who entered upon the discharge of the duties of the receivership.

— Hon. Soott M. Ladd, Judge. Action to recover the balance alleged to be due on two school district orders. The defendants answered the petition. There was a demurrer to the answer, which was sustained. The plaintiff excepted to the ruling on the demurrer, and judgment was rendered as prayed in the answer. Plaintiff appeals.

<p>Appeal from Mahaska District Court. — Hon. A. E. Dewey, Judge.</p> <p>Indictment for larceny. Verdict of guilty, and •& judgment from which the defendants appeals.—</p>

Court. — Hon. J. H. Peeston,. Judge. Plaintiee, as administrator of the estate of J. W.. Bowen, deceased, brings this action to recover upon three promissory notes. Defendant answered, admitting liability on the notes, and setting up as counterclaim an alleged indebtedness of the deceased to him on account for boarding, merchandise, meat, etc.,, furnished by defendant.

— Hon. J. H. Apple-gate, Judge. Action upon a promissory note. Trial by jury, and verdict and judgment for the defendants. Plaintiff appeals.

— Hon. James D. Smythe, Judge. Action at law to recover damages of the defendant for failure to comply with an alleged contract to furnish and maintain, in the streets of the plaintiff city, •one hundred and twenty-five arc electric lights. A jury was waived, and a trial was had before the court. A .judgment was rendered against the defendant for three thousand, nine hundred and ninety-nine dollars and ninety-nine cents, and it appeals.

— Hon. H. 0. Traverse, Judge. Habeas -corpus. The defendant is sheriff of Davis county. The plaintiff was, on his plea of guilty,, convicted of violating the law against the sale of intoxicating liquor. A fine was imposed, and a judgment rendered against him for costs, with an order for imprisonment till both were paid. He paid the fine,, and he stands imprisoned for nonpayment of the costs,, and this proceeding is to test the validity of the-imprisonment.

— Hon. H. C. Traverse, Judge. Action to recover for damages to a team, wagon,, and harness. Trial to a jury. Verdict and judgment, for plaintiff. Defendant appeals.

<p>Principal and Agent: fraud on principal. Where an agent buys property for his principal, represents to him that he paid one thousand, five hundred dollars for it when, in fact, he paid but one thousand, one hundred dollars, and invests^the four hundred dollars, or part of it, in certain lots, the principal is entitled to judgment for four hundred dollars and to have the judgment made a lien upon said lots.</p>

<p>Master and Servant: assumption or Risk. While defendant’s fireman was acting as engineer, his negligence caused plaintiff, a brakeman, to he injured. Meld, that the mere fact that plaintiff knew the fireman was so acting, and his failing to object does not preclude his recovering, as having assumed the risk, nothing appearing to show that plaintiff had reason to believe the fireman incompetent. (1)</p> <p>Pleading. Assumption of risk by plaintiff is an affirmative defense, and must be pleaded. (1)</p> <p>Absence or part of crew: negligence. Whether the absence of the conductor and the engineer, leaving but three of the crew, was or was not the cause of the improper movement of the train which led to plaintiff’s injury, is for the jury. (2)</p> <p>Verdict: sufficient evidence. It appears that plaintiff, making a coupling, had signalled the acting engineer to stop, that the train had nearly stopped, that the plaintiff, while trying to change the link, had his hand caught between the bumpers by reason of the train’s suddenly backing without notice. Reid, that a verdict for plaintiff will stand. (2, 3)</p>

<p>Superior Court: Jurisdiction. McClain’s Code, section 782, does not deprive the superior court of jurisdiction to direct a sale of property under a foreclosure granted by it, but the process for the sale must issue out of the district court, on a transcript filed therein. (2)</p> <p>Consent to sale without such process : waiver. When land is sold by consent of all parties, under an order of the superior court, the parties consenting can not question the sale because not made under process of the district court. (3)</p> <p>Setting! aside sale: insupeioient cause. The fact that one consenting party did not bid at the sale by reason of an erroneous belief that the sale was invalid, because made under the order of the superior court, will not set the sale aside. (3)</p>

— Hon. Charles D. Leggett, Judge. Action of mandamus to compel the defendant, as treasurer of the incorporated town of Eldon, to pay a certain order. Judgment was entered in favor of the plaintiff. Defendant appeals.

— Hon. David Ryan, Judge. Action in equity to set aside a sheriff’s sale of real estate, and to enjoin the execution of a sheriff’s deed, A demurrer to the petition was sustained, and, plaintiff electing to stand on her petition, judgment was rendered in favor of the defendants for costs. The plaintiff appeals.

— Hon. C. P. Holmes, Judge. The plaintiff is the administratrix of the estate of Peter Burg, Jr. Peter Burg, Jr., was. a child three years of age, in October, 1890, living with his parents near the line of defendant’s road within the city limits-of Des Moines, some three miles west from the passenger depot in the city.

<p>Sale of Intoxicating Liquors: vekdict not excessive. A verdict of one thousand dollars will stand against one of several who sold liquor to a man who was reduced; thereby from being a prosperous ■business man to a sot, who exhausted his property, virtually ruined his business, squandered, the means of supporting his wife and all of which led to his abusing his wife. (9)</p> <p>Amendment During Trial. Where plaintiff flies an amendment to petition merely specifying the manner in which sales to her husband have injured her, defendant, not having moved for a continuance, can not object thereto. (4)</p> <p>Instructions: not INCONSISTENT. An instruction limiting plaintiff’s recovery, at all events, to sales made within two years before commencement of suit, is not inconsistent with another, that if no sales occurred up to a certain point of time within the two years, recovery was limited to after that point of time and before the beginning of suit. (5)</p> <p>Same. The court need not define the word, “contributed,” used in an instruction. (7)</p> <p>Admission of Evidence: error cured. Admitting evidence as to the number of plaintiffs children is cured by an express instruction telling the jury what it should consider in determining the liability of the defendant, which does not make the number of children an element. (8)</p> <p>Stipulation as to Transcript: effect of. A stipulation that a certain transcript of the notes made by the reporter, certified by the clerk as such, may be filed in the appellate court as the only trans-script to be filed under appellee’s denial of appellant’s abstract, “appellee merely intending to question the correctness of the record as to the evidence in the cause,” merely dispenses with the clerk’s transcript of the reporter’s translation, and does not preclude appel-lee from objecting that the evidence has not been properly preserved. (2)</p> <p>Shorthand Notes: How Made of Record. Where the shorthand notes are filed in the clerk’s office properly certified by the judge and the reporter, they become a part of the record without any direction to that effect in the judge’s certificate. (2)</p> <p>Translation: time of filing. Where the notes, in a law action, are filed with the clerk in time, duly certified by judge and reporter, they become a bill of exceptions, and it is not material that a translation thereof is not filed until after the time allowed wherein to settle a bill of exceptions. (2)</p> <p>Amended Assignment of Errors: when not stricken. An amended assignment of errors filed without leave, after appellee’s argument, will not be stricken when appellee is not prejudiced or submission delayed, and where the amendment is in furtherance of justice. (3)</p>

— Hon. J. M. Casey, Judge. Action to recover for damages alleged to have been caused by the negligence of defendant in not delivering in due time a telegraphic message. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. A. W. Wilkinson, Judge. This action is to recover upon a promissory note executed February 24, 1890, by the defendants, C. H. Young, Thomas C. Young, and R. A. Creger, for three hundred dollars,, payable to the order of the Mutual Trust & Loan Company six months after date.

— Hon. W. A. Hoyt, Judge. . The plaintiff is the editor of the New Hampton •Courier, and the defendant, of the New Hampton Tribune, — newspapers published in Chickasaw county, Iowa. These two, with four other papers, were applicants for the county printing at the January session of the board of supervisors, 1892. The proceedings of the board were such that it awarded the printing to four of the papers, among which was the defendant’s paper,— the New Hampton Tribune.

— Hon. L. GK Kinne, Judge. . Action to recover damages for the loss of certain ' cattle which, it is alleged, died from the disease called “Texas fever,” which disease was contracted by contact with a cow which the defendant unlawfully transported into this state from the state of Illinois. There was a trial by jury, and a verdict and judgment for the plaintiffs. Defendant appeals.

— Hon. H. M* Townee, Judge. Action to recover damages for personal injuries,, and for* damages to horses and wagon. Jury trial. Verdict, by order of court, for defendant. Plaintiff appeals.

— Hon. Scott M. Ladd, Judge. On Novemer 15, 1889, plaintiffs commenced this action, asking for an attachment, and to recover for goods sold and delivered. On the same day an attachment was issued to Webster county, and on that day levied upon certain chattels, the property of defendant J. Szold.

<p>Appeal from Wright District Court. — Hon. J. L. Stevens, Judge.</p> <p>Action for personal injuries. Judgment for plaintiff, and the defendant appeals.</p>

— Hon. J. H. Henderson, Judge. Action on a note, and for the foreclosure of a mortgage securing the same. From a judgment and decree dismissing plaintiff’s hill, it appeals.

— Hon. A. R. Dewey, Judge. Action in equity to foreclose a school fund mortgage upon certain real estate. There was a full hearing on the merits of the case, and a decree for the defendants. Plaintiff appeals.

<p>Appeal from Poweshiek District Court. — Hon. A. R. Dewey, Judge.</p> <p>Indictment for liquor nuisance. Verdict for defendant by direction of the court. The state appeals.</p>

— Hon. J. H. Henderson, Judge. This is a proceeding in probate. The matter involved is a claim against the estate of Uriah Marietta, ■deceased, presented by the plaintiff. The claim was resisted by the administrator, and a trial was had before the court without a jury, and the claim was ■allowed, to the extent of five hundred and twenty dollars. The defendant appeals.

— Hon. D. Ryan,. Judge. Action in equity for a mandatory injunction. There was a hearing on the merits, and a decree from which plaintiff appeals.

— Hon. D. J. Lene-han, Judge,. O. F. Hodge is the owner of certain lots and parts-of lots in block 20 in the Dubuque Harbor Improvement’s addition to the city of Dubuque, Iowa, and, on the second day of June, -1890, he gave to the plaintiffs a mortgage on said lots to secure the sum of eight thousand dollars, said mortgage being filed for record on the eighteenth day of July, 1890.

— Hon. Georg-e W* Paine, Judge. PlaiNtifes bring this action to recover the balance due upon a promissory note. They allege that the defendants were a copartnership in the business of buying, preserving and shipping eggs at Ida Grove, said business being under the management and control of the defendant Rollins.

— Hon. David Evan, Judge. Action to recover upon a policy of insurance against loss by fire. The case was tried to a jury, and on motion a verdict was ordered for the defendant. Plaintiff appeals.

— Hon. Lot Thomas, Judge. This is a suit in equity for the partition of certain real estate. There was an issue made as to the extent of the interests of the respective parties to the land which is the subject of the suit. The court entered a decree fixing the shares of the parties in accord with the claim made by the plaintiff. A part of the defendants in the action appealed.

<p>Appeal from Polk District Court.-. — Hon. C. P. Holmes, Judge.</p> <p>Action in equity. Judgment and decree for defendants. Plaintiff appeals.</p>

— Hon. J. E. E. McG-ee, Judge. Action at law to recover the contract price of one iron safe sold by the plaintiffs to the defendant. There was a trial before the court without the intervention of •a jury, and a judgment for the plaintiffs. Defendant .appeals.

— Hon, A. B. Thornell, Judge. The defendant company operates a line of street railway on some of the streets in Council Bluffs, Iowa, and in Omaha, Nebraska. The plaintiff resided in 1890 in Council Bluffs, and was employed as a draughtswoman in an office in Omaha. She traveled to and from her work on defendant’s railway.

— Hon. J. K. Johnson, Judge. Plaintiff alleges that be is administrator of the estate of William B. Johnson, deceased; that said Johnson came to his death while in the employ of defendant, because of certain specified acts of negligence on the part of defendant, wherefore he asks to recover damages. Defendant answered, denying generally, and alleging a waiver by the deceased as to the matters alleged as negligence, and that he was guilty of contributory negligence.

— Hon. P. B. Wolee, Judge. Action to recover damages to the estate of P. W. Davies, deceased, alleged to have resulted from negli.gence on the part of defendant which, caused his death. There was a trial by jury, and a verdict and judgment ■for plaintiff. The defendant appeals.

— Hon. J. L. Husted, Judge. Action to recover damages for the loss of an elevator by fire, alleged to have been caused by negligence on tbe part of defendant. A demurrer to tbe answer was overruled. Tbe plaintiffs electing to stand on tbeir demurrer, judgment was rendered against them for costs and they appeal.

— Hon. D. J. Lenehan, Judge. Action in equity for a partition of certain real estate of which Ezra Barnes died seised. The plaintiff claims to be the widow of said deceased, and, as such, entitled to a distributive share in' said real estate. The defendant, Mary E. Barnes, claims to be the widow of said deceased, and to be entitled to all of said real estate, under the last will and testament of said Ezra Barnes, deceased.

— Hon. Lot Thomas, Judge. This action is upon two promissory notes, aggregating one thousand, three hundred and fifty-five dollars, upon which there is a conceded credit of six hundred and seventy-three dollars and fifty-three cents. The answer disputes the correctness of two of the items of credit given, and claims additional credits, as to which issue is taken.

<p>Conflict of Laws: Action on Note. Anote dated, “Storm Lake, Iowa,” executed and delivered by a resident of Iowa in New York, reserved a rate of interest legal in Iowa but illegal in New York, the parties intending that Iowa law should govern the contract, is enforceable in Iowa. (3)</p> <p>Variance by Parol. Whether the presumption that a note is payable where dated is rebuttable by parol is not decided. (3)</p> <p>Proving Needless Allegation. An averment showing how title to a note was obtained is unnecessary where the payee has possession of it, and need not be proven until the presumption of ownership raised by that possession is overcome. (2)</p>

— Hon. H. C. Traverse, Judge. The plaintiff company is the publisher of the Chariton Democrat, published in Lucas county. The Chariton Patriot and the Chariton Herald are also published in that county, the Patriot being published by the defendant Lewis. Each, under the law as to county printing, filed with the county auditor certified statements of bona fide subscribers, and the board of supervisors selected- the Herald and Patriot, and awarded to them the printing.

— Hon W. F„. Bbannan, Judge. Action to recover the amount due on certain prom- ' issory notes given by the defendant W. G-. Holmes. His wife and codefendant Hannah Holmes-, filed a. demurrer to the petition, which was overruled, and then filed an answer, which contained two divisions. A. demurrer of the plaintiff to the second division was overruled. He elected to stand on his demurrer, and judgment was rendered in favor of Hannah Holmes for costs. The plaintiff appeals.

— Hon. J. L. Husted, Judge. Aotiou to recover for damages alleged to have been caused to plaintiff by sales of intoxicating liquors made by defendant to the husband of plaintiff, and to establish a lien therefor upon certain real estate; also, to recover an amount alleged to be due on account. There was a hearing on the merits, and a decree in favor of defendant. The plaintiff appeals.

— Hon. Gr. W.. Ruddick, Judge. On the eleventh day of February, 1892, one Arms-bury made to tbe plaintiff a written assignment of bis-property for tbe benefit of bis creditors. This action was brought by tbe assignee to recover damages of tbe defendants for wrongfully taking and disposing of certain property belonging to tbe insolvent assignor. It was held by tbe district court that tbe defendants were not liable, and plaintiff appeals.

— Hon. John J. Ney, Judge. This is a suit in equity, and involves the rights of the plaintiff and the defendant in certain real estate •and personal property once owned by Ami H. Trask, now deceased. There was a decree in the district court for the defendant, and plaintiff appeals.

— Hon. James D. Smythe, Judge. The following is a statement of facts as made by appellant: “On the twenty-ninth of December, 1884, Samuel C. Davis & Company sued out of the district court of Lee county an attachment against John H. Schwartz, the plaintiff herein, on' the sole ground that Schwartz was then about to dispose of his property with intent to defraud his creditors.

— Hon. S. M. Weaves,, Judge. The Tuthill Spring Company brings this action in equity, and alleges that it is a judgment creditor of the Shaver Wagon Company, an insolvent corporation organized under the laws of Iowa; that at the time of the creation of said indebtedness, the rendition of said judgment, and the commencement of this action, there stood in the name of defendant Smith capital stock of said company in sum of ten thousand dollars, no part of which was paid, and in…

— Hon. S. M. Weaver, Judge. Action in equity to have set aside as fraudulent a certain chattel mortgage, and to subject the mortgaged property to the payment 'of judgments owned by plaintiffs. There was a hearing on the merits, and a decree in favor of the defendants. The plaintiffs appeal.—

<p>Highway: Sufficiency of Petition to Give Board Jurisdiction. A petition asking that a highway described, “be-,” and which in no way indicates the relief desired, does not confer jurisdiction to establish a highway upon the board of supervisors. - Code, 922; Mo-ColUster v. Shuey, 24 Iowa, 36B; State v. Pitman, 38 Iowa, 252; Stevens v. The Board, 41 Iowa, 343; Harris v. The Board, 55 N. W. Rep. 324; State v. Barlow, 61 Iowa, 572, and Curtis v. The County, 72 Iowa, 151, distinguished.</p>

— Hon. S. M. Weaver, Judge. Action to recover for personal injuries, sustained, as is alleged, by reason of defendant’s negligence in permitting one of its sidewalks to be and remain in a dangerous condition. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. Q-. W. Ruddick, Judge. Action in equity to have set aside the sale of certain lots made on account of a sidewalk tax, and to have the tax declared to he void. There was a hearing on the merits, and a decree in favor of the plaintiff. The defendants appeal.

— Hon. S. M. Weaver, Judge. Action at law to recover the sum of two hundred ■dollars which plaintiff alleged he deposited with the defendant hank. The defendants denied that the alleged deposit was made. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendants appeal.

— Hon. O. M. Wateb-man, Judge. Action to enjoin the opening of an alley in the defendant city. The intervener claims the alley as appurtenant to a lot owned by her. The district court dismissed the petition of plaintiff and the answer of defendant, and gave judgment establishing intervener’s right to the ally. The plaintiff appeals.

— Hon. L. Gr. Kinne, Judge. Action for the recovery of specific personal property, it being for a horse alleged in the petition to be of the value of eighty dollars; and there is a claim for twenty dollars for wrongful detention. Tire answer denies the right of the plaintiff to the possession of the horse, ¡and admits that the defendant’s claim to the possession of the horse is by virtue of a chattel mortgage, as stated in the petition.

— Hon. W. A. Hoyt, Judge. Plain-tied asks that she be divorced from the defendant on the ground of cruel and inhuman treatment endangering her life, and for alimony. Defendant denies the allegations of cruel and inhuman treatment, and asks to be divorced from the plaintiff on the ground of desertion, and that a certain conveyance of land, executed at his instance, to the plaintiff, be •set aside, andthathe be decreed to be the absolute owner of said land.

<p>Appeal from Lo-uisa District Court. — Hon. A. R. Dewey, Judge.</p> <p>Action in equity to establish a resulting trust. Judgment and decree for defendants. Plaintiff Appeals.</p>

— Hon. Walter I. Smith and Hon. A. B. Thornell, Judges. Action on the official bond of a constable, to remover the value of certain corn alleged to have been illegally taken and sold to satisfy an execution. A ■demurrer to the petition was sustained, and, the plaintiff refusing to plead further, judgment was rendered in favor of the defendants for costs. The plaintiff .appeals.

— Hon. W. A. Hoyt, Judge. The plaintiff is the publisher of the New Hampton Times, a weekly newspaper published in Chickasaw county. He applied to the board of supervisors of that county in January, 1892, to have his paper selected as one of the official newspapers of the county, under the provisions of section 307 of the Code. The board ignored that paper, and selected four others. Erom that action the plaintiff appealed to the district court.

— Hon. A. R. Dewey, Judge. Action against defendants for damages arising from willful trespass, in mining coal on plaintiff’s land. Trial to jury. Yerdict and judgment for plaintiff. Defendants appeal.

<p>Abatement: Other Action Pending. An action to enforce a lien in which there is dispute as to how much defendant has paid is not abated by the pendency of another action, as to which defendant simply avers that, if it be determined therein that a certain two-thousand. dollars was applied as a payment, the payments would aggregate seven thousand, five hundred dollars. Such plea merely sets up a fact to be considered in determining how much has been paid.</p> <p>Variance: Objection too Late. It can not be urged here for the-first time, that nothing but an issue not made by the pleadings was tried and determined.</p>

— Hon. W. F. Conrad, Judge. This action is to recover the contract price of beer alleged to have been sold by the plaintiff, as a corporation, under the laws of Wisconsin, to the defendant, and delivered at Milwaukee, Wisconsin, for shipment to Des Moines, Iowa, for sale in original packages. There was a denial, and a counterclaim for money paid to plaintiff for beer sold to defendant in violation of the laws of Iowa.

— Hon. W. F. Beannan, Judge. This is an action to recover damages on an injunction bond. There was a trial by jury. At the close of the introduction of plaintiff’s evidence, on motion of defendant’s counsel, the court instructed the jury that the plaintiff had failed to introduce any evidence in support of the allegations of his petition, and there should be a verdict for the defendant.

— Hon. John J. Ney, Judge. This is an action to recover damages for a personal' injury resulting in the death of Hugh 0. Haggerty. From a judgment on a verdict for the plaintiff, the defendant appeals.

— Hon. Chaeles D. Goldsmith, Judge. Franklin and Aner E. Bradshaw are husband and wife, and plaintiffs in the first above entitled action. On the first day of July, 1881, Franklin Bradshaw being the owner of the southeast quarter of section 21, township 85 north, of range 29, in Greene county, the plaintiffs joined in a mortgage thereon to Edward Heliker, trustee for Thomas W. Marshall, to secure the sum of seven hundred and fifty dollars.

— Hon. C. M. Waterman, Judge. Action in equity for the partition of certain real estate, and for other equitable relief. From .a judgment and decree in part denying plaintiff the relief prayed she appeals.

— Hon. Walter I.. Smith, Judge. Action in equity to reform certain written instruments, and for judgment thereon. Decree was entered. dismissing plaintiff’s petition, and for costs, from which, he appeals.

<p>Redemption from Tax Sale: Offer to Repay Taxes. A pleading offering to pay all taxes due which are not barred by the statute of limitations, is sufficient though it aver that all the taxes paid by plaintiff more than five years before suit was begun are barred. (2)</p> <p>Same: Abatement by Transfer, The fact that pending decree to repay taxes into court there is a transfer of the land by defendant, and that the grantee pays in the money, will not necessarily entitle plaintiff to relief in this court. Code, section 2561. (5)</p> <p>Same: Variance in Initials. A variance in the middle initial of tlie grantee does not render the deed incompetent where his identity is established. (1)</p> <p>Same: burden of proof. One who produces a deed need not show that grantee was single and that the land was not a homestead. (1)</p> <p>Failure to Pay Taxes on Wild Land. Failure to pay taxes on unimproved and uninelosed land does not necessarily defeat the right to redeem from the holder of an invalid tax title. Mathews v. Cub hertson, 83 Iowa, 440, distinguished. (3)</p> <p>Deed: Subsequently Acquired Title. Where grantor, by warranty deed, subsequently acquires title, it inures to his grantee. (1)</p> <p>Statute of Limitations must be Pleaded. A denial that a tax sale was irregular does not authorize proof of the existence of possession for five years which bars the action under Code, section 902. (3)</p> <p>Entering Delinquent Tax on List. Where there is a sale had for the tax of 1877 and the delinquent taxes for prior years are not entered on the tax list for 1877, the sale is invalid. (3)</p>

<p>Appeal from Howard District Court. — Hon. L. O. Hatch, Judge.</p> <p>Appeal from the judgment of the district court reducing the amount of plaintiff’s assessment on moneys and credits.</p>

— Hoe. James D-Gteeen, Judge. An action to recover the value of five hundred and twenty-three bushels of corn, taken by the defendant from plaintiff’s farm in .Cedar county. From a judgment below for the plaintiff, the defendant appealed.

<p>Appeal from Fremont District Court. — Hon. N. W. ‘ Macy, Judge.</p> <p>Action in two counts to recover on two written subscriptions made by the defendant to the capital stock of said company, “to be paid when railroad is ■completed and cars running from Tabor to Malvern, Iowa.” Plaintiff alleges, compliance with, said condition, that defendant refuses to pay, and makes profert of the certificates of stock, and .asks to recover. Defendant answers that it is provided in plaintiff’s articles of incorporation that the road should he built “from within the corporate limits of Tabor, Fremont county, Iowa,” that he made said subscriptions upon the agreement, understanding, and representations that the road would be so completed and operated, and denies that it has. been so completed and operated. The defendant also set up a counterclaim for rent that is not disputed. The case was tried to a jury, and a verdict returned for .the defendant. Plaintiff appeals.</p>

<p>Mortgage: fraudulent insertions: evidence considered. A mortgagor and Ms wife testified that certain lands to which he had a hond for deed were fraudulently put into the mortgage, in which they were corroborated by entries and a cancellation made on the bond. The application for the loan included the land in question, and so did the mortgage for commission. The conveyances, the mortgagee and another testified that the instrument was' unchanged, which claim is borne out by its inspection. The last two also testified that the mortgagor and wife fully understood what the mortgage covered. - E'eld, that defendant’s claim was not established. (2)</p> <p>Subrogation: Payment on Assumed, Debt. Where one buys the equity in land held on bond for deed, agreeing to pay what is due on the bond, the land bought being also mortgaged, he can not against foreclosure of the mortgage, be subrogated ¿to the ’rights of the holder of the bond to the extent of what’ he has paid upon it. Assuming the bond, made what was due upon it a primary liability of the assumer, in which ease there can be no subrogation. (3)</p> <p>Alienation: Mortgaged Property. Where a part of mortgaged property is alienated, it must bear the mortgage debt pro rata, according to value to be ascertained without regard to improvement by the purchaser, made after the giving of the mortgage. (5)</p> <p>■Same: exhausting land not alienated. When the mortgagor has no title left in the mortgaged property when the mortgage is foreclosed, the rule that unsold mortgaged property shall first be exhausted, has no application. (4)</p>

<p>Appeal from Monroe District Court. — Hon. W. I. Babb, Judge.</p> <p>Action on a policy of insurance against loss by fire. There was a trial by jury, and a verdict and judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Shelby District Court. — Hon. Walter I. Smith, Judge.</p> <p>Action to recover damages alleged to- bave been caused to the estate of plaintiff’s intestate by negligence on the part of defendant. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.</p>

<p>Lost Petition Affecting Real Estate: presumption as to. It is presumed that a petition affecting realty, under Code, 2628, -which makes its filing notice, describes land included in a subsequent decree in the cause, and where that decree is in aid of an attachment of the land, the presumption can not be overcome by testimony giving a mere deductive impression that the petition did not describe the land covered by the decree.</p> <p>Description in decree: sufficiency of. A decree describing a fractional part of a section as “N2, S. E4., S. E4., 36,” etc., is sufficient.</p> <p>Laches in Asserting Title. A delay of six years is1 no bar to an action to quiet title against a eotenant where each has paid taxes part of the time, the land was open to the public most of the time, and where the defendant, while controlling the land in the absence of plaintiff, has been fully compensated for improvements by use of the land and has failed to make such adverse claim as would set the statute of limitations to running.</p>

<p>Appeal from Blackhawlc District Court. — Hon. J. D. Lenehan, Judge.</p> <p>Proceeding in equity to establish plaintiffs’ right to certain assets converted by defendants, and for the cancellation of certain stock and bonds, and for damages, and other equitable relief. Decree below for defendants, and dismissing plaintiffs’ bill at their costs, from which this appeal is prosecuted.</p>

— Hon. J. M.. Casey, Judge. The plaintiff is the owner of sixty-sis acres of land, in Des Moines county, and one of the defendants is. clerk of the township, and the other is supervisor of' the road district in which the land is situated. Defendants have heretofore claimed and now claim the right to-maintain and improve a public highway across the land of the plaintiff.

' Appeal from Cass District Court. — Hon. Walteb I. Smith, Judge. Action for the partition of real estate. There was a hearing on the merits, and a decree, from which the plaintiffs and certain defendants appeal.

— Hon. Scott M. Ladd, Judge. Indictment for designedly and by false pretenses securing tbe signature of another to a written instrument. There was a verdict of guilty and a judgment, from which the defendant appealed.

— Hon. W. I. Babb, Judge. The defendant was jointly indicted with Spencer Gile for the crime of feloniously breaking and entering a certain railroad car, with intent to commit larceny. The defendant Russell was separately arraigned, tried and convicted, and adjudged to be confined in the penitentiary at Fort Madison at hard labor for one year, from which judgment he appeals.

— Hoar. D. RyaN, Judge. The defendant was convicted, and fined one hundred dollars, for knowingly, willfully, and unlawfully receiving, for the purpose of delivering to another, certain intoxicating liquors, which were being, as it is alleged, unlawfully conveyed in this state. He appeals.

— Hon. Charles D. Goldsmith, Judge. Action in equity to recover amounts alleged to be due on promissory notes, and for the foreclosure of mortgages given to secure their payment. There was a hearing on the merits, and a decree for the plaintiff. The defendants appeal.

— Hon. J. H. Henderson, Judge. The defendant was indicted in tbe district court of Polk county for the willful, deliberate, and premeditated murder of E. H. Wishard. The venue of the-case was changed to the district court of Warren county, where a trial was had which resulted in a ver-diet and judgment for manslaughter. The defendant, appeals.

— Hon. J. L. Stevens, Judge. Action in equity for tlae abatement of a nuisance alleged to have been caused by keeping for sale, and selling, in premises described, intoxicating liquors, in violation of law. There was a hearing on the merits, and a decree from which defendants James L. Williams and H. E. J. Boardman appeal.

— Hon. W. A. Hoyt, Judge. The defendant was convicted in tbe court below of an assault with intent to commit a rape, and be appeals.

— Hon. Charles D. Goldsmith, Judge. This action was commenced before a justice of the peace, and taken on appeal, by the defendant, to the district court, where the judgment was affirmed on plaintiff’s motion. Defendant’s motion to set aside the judgment and affirmance was overruled, from which ruling the defendant appeals upon a certificate of the trial judge.

— Hon. H. E. Deemer, Judge. The defendant was indicted for murder, pleaded guilty, and was sentenced to be hanged. He appeals.

— Hon. George W Paine, Judge. Plaintiffs state, as their cause of action, that they are practicing attorneys at law, and as such were retained by the defendant to defend an 'action pending against him; that they rendered services in defending said action, and paid expenses incurred therein, all of the reasonable value of one hundred and thirty-three dollars and. fifteen cents; and that only twenty dollars thereof has been paid, wherefore they ask to recover one hundred and…

— Hon. L. O. Hatch, Judge. The defendant was indicted for the crime of- adultery, convicted, and sentenced to the penitentiary for the term of one year. He appeals.

— Hon. J. H. Preston, Judge. This is an action for the partition of certain real estate, and to cancel a mortgage upon the same, executed to the defendant, William King, by Margaret Herr, now deceased. • There was a decree providing for the partition of the property as prayed, but it was held by the district court that the mortgage of King was a valid lien upon the land. The plaintiffs appeal—

— Hon. L. GL Kinne and J. R. Caldwell, Judges. Action in equity for the partition of real estate. There was a hearing on the merits, and a' decree in favor'of the plaintiffs. The defendants Jessie Gr. Phillips and Bertha M. Phillips appeal.

— Hon. Scott M. Ladd, Judge. Action to rescind the contract for the sale of a horse, and cancel a conveyance of land. From a judgment dismissing the petition, the plaintiff appealed.—

<p>Appeal from Pottawattamie District Court. — Hon. A. B. Thornell, Judge.</p> <p>Deeendant was tried and convicted of the crime1 of uttering a forged instrument, and appeals.</p>

— Hon. J. H. Preston, Judge. Action at law to recover the possession of specific personal property. There was a trial by jury, and a verdict and judgment for defendant. The plaintiff appeals.

— Hon. W. F. Conrad, Judge. This is a suit in equity, and it involves a church controversy between two opposing parties, each claiming to be the true adherents of the Evangelical Association of North America. There was a decree dismissing the plaintiff’s petition, and they appeal.

— Hon. A. Van Wagenen, Judge. The defendants were charged by indictment with the crime of adultery. There was a trial, a verdict of' guilty, and a judgment on the verdict. The defendants appeal.

— Hon. F. E. G-ay-nor, Judge. The plaintiff commenced this action in equity to enjoin the defendants from foreclosing a chattel mortgage upon the ground that the debt secured thereby was largely made up of usurious-interest. There was a hearing on the merits, and a decree for the defendants. Plaintiff appeals.

— Hon. H. C. Tbavebse, Judge. Action to set aside a sheriff's sale of certain premises, and to quiet the title to the same in the plaintiffs. Decree for plaintiffs, and the defendants appeal. — ■

— Hon. James D. GlEEEN, Judge. Action in equity -to quiet title to a certain four acre tract of land. Decree was entered dismissing plaintiffs’ petition, from which decree they appas!.

<p>Appeal from Calhom District Court. — Hon. G-eoeg-e W. Paine, Judge.</p> <p>Action for damages resulting from personal injuries. Trial to jury. Yerdict for plaintiff. Defendant appeals.</p>

— Hon. H. E. Deemer, Judge. Actions in equity for the enforcement of a certain order made by the board of railroad commissioners of Iowa. Demurrers to petitions sustained; and plaintiff •electing to stand upon its pleading, and refusing to plead further, its petitions in each case were dismissed at its costs. From these rulings and judgments, plaintiff appeals.

— Hon. G-eorge W. Paine, judge. The plaintiff is the widow of Bichard Biohards, deceased, and the defendants are his children and heirs at law. This action was brought by the plaintiff for the purpose of procuring a decree by which her distributive share in certain land owned by the deceased should be set apart to her, and also to determine other rights which she claimed under the provisions of the last will and testament of her husband.

— Hon. James D. Gteeen, Judge. The plaintiffs are the executors of Herman Foster, deceased, who died testate on the fifteenth day of January, 1892. The defendant, Elizabeth C. Beebe, on the fourth day of April, 1884, made her two notes to Samuel N. Goodhue for two hundred dollars each, and secured the same by mortgage on two lots in Marion, Iowa.

— Hon. J. H. Preston, Judge. Action to recover for injuries alleged to have been caused by negligence on the part of defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. S. H. Fairall, Judge. Action for' the recovery of certain real estate, together with the rents and profits thereof. Estella McFadden intervened. From a decree in favor of the intervener, and against the plaintiff, the plaintiff and defendants appeal.

— Hon. James D. Giffen, Judge. Action on policy of insurance. There was a verdict and judgment for the defendant, and -plaintiff appeals.

— Hon. J. M. Casey, Judge. This is an action at law to recover damages for a personal injury received by the plaintiff while engaged in raising a smoke stack into an upright position. The smoke stack was part of an electric light plant owned by the defendants. While engaged in raising the stack with a derrick, the machinery and appliances connected therewith broke and gave way, and the stack fell, by reason of which the plaintiff was seriously injured.

— Hon. Chaeles A. Bishop, Judge. Action to recover possession of a certain strip of land heretofore conveyed, as per deed set out, as a right of way, to the defendant’s grantor by the plaintiff and another, then owners of the tract out of which said strip was taken.

— Hon. C. P. Holmes, Judge. Action on an account, aided by attachment. The account is admitted, and a cross action filed for the wrongful suing out of the attachment. There was a verdict and judgment for the defendant. The court refused the defendant an attorney’s fee, and both parties have appealed.

— Hon. James D. G-ieeen, Judge. Action to set aside the probate of a will, and to have the will declared to be void. There was a trial by jury, and a verdict and judgment for the defendants. The plaintiff appeals.

— Hon. G-. W. Wakefield, Judge. Action for the wrongful suing out of an attachment. There was a judgment for the plaintiff, and the defendants appeal.

— Hon. W. F. Conrad, Judge. Action to oust the defendant Parsons from the office of secretary of the senate of the twenty-fourth general assembly of Iowa, to adjudge the plaintiff entitled thereto, and to reinstate him therein.

— Hon. James D. Gteeen, Judge. The defendant was indicted, convicted, and. sentenced for the crime of forgery, and appeals.

— Hon. A. B. Thornell, Judge. Action for the foreclosure of a mortgage on real estate. From a decree for the plaintiff the defendant appealed, and the decree was reversed. A modified decree was thereafter entered by the district court, ordering a sale of the property subject to the right of redemption, and the plaintiff appeals.

— Hon. A. B. Thornell, Judge. The plaintiff, a mutual insurance company upoD the assessment plan, brings this action at law to recover of the defendant, as a member of said company, an assessment made upon a policy held by him for two thousand, three hundred dollars; said assessment being to pay a judgment in favor of Thomas Weidman, also a member, for two thousand and twelve dollars, rendered on account of a loss sustained by him under his policy from the plaintiff.

— Hon. W. I, Babb, Judge. Action for personal injuries in a coal shaft. There-was a judgment for the plaintiff, and the defendant, appealed.

— Hon. N. W. Macy, J udge. Action in equity for the cancellation of a conveyance of real estate. There was' a hearing on the merits, and a decree in favor of the plaintiff. The defendants appeal.

— Hon. S. M. Weaves, Judge. This is an action upon four promissory notes executed by the defendant, and an account for interest on a balance alleged to be due the plaintiff. The defendant, by his answer, denied indebtedness upon the account, and alleged that the promissory notes were fully paid by the seizure of certain property rights and credits of defendant under a chattel mortgage given to secure the payment of said notes.

<p>Appeal from Keokuk Superior Court. — Hon. H. Bank, Jr., Judge.</p> <p>Action on a policy of insurance. Jury trial; verdict and judgment for the plaintiff:. The defendant appeals.</p>

— Hon. James D. GIieeen, Judge. The plaintiff; brings this action in equity upon a certificate of life. insurance issued by the defendant, a mutual life insurance company upon the assessment plan, to the deceased husband of the plaintiff, in which certificate the plaintiff is named as the beneficiary.

— Hon. J. H. Pees-ton, Judge. Action upon a promissory note. There was a demurrer to the petition, which was overruled, and judgment was entered for the plaintiff. The defendants appeal.

— Hon. D. B. Hindman, Judge. On September 9, 1889, the plaintiff filed his petition to recover upon a policy of insurance against loss by fire, issued to him by the defendant.

— Hon. H. E. Deemer, Judge. The plaintiff commenced this action in the court of a justice of the peace of Avoca, to recover a sum of money. On the application of the defendant, the action was dismissed by thejjustiee. That proceeding was reviewed by the district court, by means of a writ of error and, in effect, affirmed. From the judgment-of the district court the plaintiff appeals.—

— Hon. N. W. Maoy, Judge. This suit is a controversy between the creditors of the defendant H. B. Allen, an insolvent debtor, on the one side, and the defendants Smith & Cullison, who claimed to have purchased the property of said Allen, on the other. It is claimed by Smith & Cullison that they took a bill of sale of the personal property of said Allen, and a deed or conveyance of his real estate, in good faith, and for a valuable consideration.

<p>Certiorari to Mahaslca District Court. — Hon. D. Byan, Judge.</p> <p>Certiorari proceedings to test the legality of an order punishing the plaintiff for a contempt.</p>

<p>Unconditional conveyance intended as mortgage: evidence.</p>

— Hon. C. A. Bishop, Judge. Action upon three promissory notes. There was a demurrer to the petition, which was sustained, and the petition was dismissed. Plaintiff appeals.

— Hon. J. B. Caldwell, Judge. Action on four promissory notes aided by attachment. The notes aggregated, -at their maturity, three thousand, seven hundred dollars.

— Hon. J. H. Applegate, Judge. Action to recover for labor and for material used in tbe improvement of a dwelling house, and to foreclose a mechanic’s lien ¿hereon. Judgment was entered in favor of the plaintiffs for twenty-eight dollars and five cents, and for one half of the costs. Defendant appeals.

<p>Appeal from Johnson District Court. — Hon. S. H. Fairall, Judge.</p>

<p>Adultery: evidence warrants conviction: no error in instructions.</p>

— Hon. P. B. Wolke, Judge. Action to recover double the value of a bull alleged to have been killed on defendant’s right of way because of the same not being fenced. Answer, general denial. Verdict and judgment for plaintiff. Defendant appeals.

<p>Appeal from Wiwnelago District Court. — Hon. John C. Sherwin, Judge.</p> <p>Action on a written contract. Judgment for plaintiff. Defendants appeal.</p>

<p>Contempt: liquor nuisance. One who unlawfully sells liquor in a certain place is not in contempt of an injunction to which he was no party, and which restrained another from selling in said place. Buhl-mon v. Humphrey, 86 Iowa, 597, and Newcomer v. Bucher, '56 N. W, Kep. 499, followed.</p>

— Hon. W. A. Hoyt, Judge. Action to recover damages for the breach of a contract by which the defendant bargained and sold to the plaintiff and one Henry Elliot certain real estate and personal property. There was a trial by jury, and a verdict and judgment for plaintiff for one hundred and sixteen dollars, and defendant appeals.

— Hon. Lot Thomas, Judge. Action in equity for judgment on three promissory notes aggregating three thousand, three hundred and sixty dollars, executed by the defendant Carl Hintz to Doris Peters or order, in consideration for certain land purchased from William Peters. Also for decree foreclosing a mortgage on said land, executed by the defendants to secure said notes.

This is an action of eertíorari to test the legality of certain proceedings wherein the plaintiff was adjudged guilty of contempt.

<p>Appeal from Polk District Cowt. — Hon. C. P. Holmes, Judge.</p>

— Hon. George 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 railway commissioners, and applicable to its road. Judgment was rendered in favor of the plaintiffs. Defendant appeals.

— Hon. Charles D. Goldsmith, Judge. Action for divorce on the ground of desertion. The defendant, by cross petition, seeks a divorce on the ground of cruel and inhuman treatment. The district court dismissed both petitions, and the plaintiff appealed.

— Hon. Charles D. Goldsmith, Judge. This cause was tried below as an equitable action, and is to be so tried in tbis court.

This is a proceeding in certiorari to review the action of the district court of Woodbury county in adjudging plaintiff guilty of contempt.

— Hon. S. P. Balliett, Judge. Action in equity to restrain the defendants Horn removing or otherwise interfering with part of the railway track of the plaintiff. There was a hearing on the merits, and a decree in favor of the defendants. The plaintiff appeals.