Volume 91 — Iowa Reports

— Hon. A. Yan Wagenen, Judge. Action in equity to determine the priorities between creditors of O’Mere & Webster to a fund in the hands of the defendant Black as trustee. Decree was entered, from which the plaintiff, Reynolds, the defendants Sioux National Bank and W. W. Byam appeal.

— Hon. H. E. Deemer, Judge. Action for damages for the wrongful taking possession of real estate, and for the value of certain crops taken. Trial to the court, and judgment against plaintiffs for costs, from which they appeal.

— Hon. Scott M. Ladd, Judge. Action to recover an amount alleged to be due on account of' farm machinery and supplies sold and delivered. After the evidence had been submitted on the trial, the court directed a verdict for the plaintiff, and judgment was rendered in its favor for the sum of two thousand, nine hundred and eighteen dollars and forty-four cents and costs. The defendant appeals.

— Hon. W. I. Babb, Judge. Action in equity for an injunction to restrain the defendant from making certain grade-crossings. There was a hearing on the merits, and orders from which both parties appeal, the defendant having taken the first appeal.

— Hon. J. H. Pbeston, Judge. Action to contest the election of the incumbent to the office of justice of the peace. The court organized for the trial rendered judgment in favor of the contestant. From that judgment the incumbent appealed to the district court. After the evidence had been submitted in that court, the jury was directed to return a verdict in favor of the incumbent, which was done, and judgment was rendered on the verdict. The contestant appeals.

— Hon. 3?. R. G-aynob, Judge. Action in equity for judgment on a promissory note, and decree foreclosing a mortgage on real estate to secure same. Decree was entered as prayed, from which defendants appeal.

— Hon. George W. Wakefield, Judge. Action to recover for injuries sustained by falling into a cellar way in one of defendant’s sidewalks.

<p>Appeal from Adair District Court. — Hon. J. H. Hendebson, Judge.</p> <p>Action for the foreclosure of a mortgage. Decree for plaintiff, and the defendants appealed.</p>

— Hon. J. C. Sherwin, Judge. This is an action at law, and involves the title to a quarter-section farm in Mitchell county. Both sides to the controversy claim title under the last will and testament of Janet Eckford, deceased. There was a judgment in favor of the defendants, and the plaintiffs appeal.

— Hon. A.R. Dewey, Judge. Lucinda and Wyatt Van Kleek, prior to February 8, 1892, had been husband and wife, and were divorced. Thomas Flynn is a son of the plaintiff, and Ed Van Kleek is a son of the defendants Lucinda and Wyatt Van Kleek. Prior to the eighth day of February, 1892, Lucinda Van Kleek was the owner of twenty-five acres of land, which is the subject of controversy in this suit.

— Hon. D. R. Hindman, Judge. Action to recover for personal injuries sustained by the plaintiff through the negligence of a. coemployee while in the employ of defendant as a section hand, and while propelling a hand car on its track. The defendant demurred to the petition on the ground that the wrong complained of was not in any manner connected with the use and operation of its railway.

— Hon. George W. Wakefield, Judge. Action in equity to restrain the defendant from obstructing an alleged highway. There was a hearing on the merits, and a decree in favor of plaintiff. The defendant, Socrates Smith, appeals.

— Hon. Feed ' O’Donnell, Judge. Action upon an attachment bond, executed by defendants Nicholas Kehoe, as principal-, and Michael Hogan and Patrick Kehoe as sureties, “to M. M. Car-ville and Daniel King.” Defendants Michael Hogan and Patrick Kehoe demurred to the petition, and, the demurrer being sustained, plaintiff excepted, and elected to stand upon his petition, whereupon judgment was entered against him, from which judgment he appeals.

— Hon. G-eoege W. Wakefield, Judge. Action for damages for personal injuries. Trial to jury. Verdict and judgment for plaintiff, and the defendant street railway company appeals.

<p>Appeals from Polk District Court. — Hon. S. F. Balliett, Judge.</p> <p>Actions for damages against the Iowa State Agricultural Society. Plaintiffs appeal.</p>

<p>Appeal from Wapello District Court. — Hon. A. R. Dewey, Judge.</p> <p>Action to enjoin the maintaining of a liquor nuisance. Decree for plaintiff, and the defendant appealed.</p>

— Hon. S. H. Fair-all, Judge. Action upon a policy of insurance against loss by fire. Trial by jury. Verdict and judgment for the-plaintiff, and defendant appeals.

— Hon. S. F. Balliett, Judge. Action at law to recover the sum of two thousand, six hundred aiid thirty-five dollars and thirty-five cents alleged to be due for beer sold and delivered, and for beer barrels, kegs, and cases delivered and not returned. The defendant, by way of counterclaim, asked judgment for the amount of money he had paid to plaintiff for beer. A jury was impaneled, and the trial of the cause was commenced.

— Hon. George H. Carr, Judge. The defendant made to the plaintiff, on the eighteenth day of May, 1885, a deed to the northeast quarter of the northeast quarter of section 20, township 96, range 32 west, for a consideration of six hundred dollars. In the deed is a clause as follows: “And the Des Moines and Ft.

— Hon. James D. Smythe, Judge. The interveners, John V. Farwell & Company, seek to recover of J. H. F. L. E. Weber an amount alleged to be due for goods sold and delivered to him, and to subject property which he had mortgaged, and afterward assigned for the benefit of his creditors, to the payment of their claim. Judgment was rendered, denying the interveners relief, as against the assignment, and they appeal.

— Hon. J. H. Henderson, Judge. Action to recover for the malicious destruction of a garden crop, and for the malicious conversion of a patch of potatoes. Defendant answered,■'denying generally, and set up as counterclaim a claim for- hay, fruit, corn, etc., damages to well, trees, and team, and a failure to properly attend to defendant’s crops.

<p>2 3 Estates of Decedents: rank of claims. Code, 2421, entitling elaimants to equitable relief, deals with fourth class claims alone, and no “peculiar circumstances” can change the relative rank of claims. Brewster v. Kendrick, 17 Iowa, 479, overruled. In re Wonn’s Estate, 80 Iowa, 750, 45 N. W. Bep._ 1063, distinguished.</p> <p>1 Same. At any rate, the fact that claimant is a nonresident and ignorant of Iowa statutes, would not, even, amount to any of the causes for which section 2421 may aid fourth class claims.</p>

— Hon. James D. Smythe, -.Judge. Action in equity-to have set aside an alleged redemption of real estate from judicial sale. There was a hearing on the merits, and a decree in favor of plaintiff. The defendant appeals.

— Hon. J. O. . Sherwin, Judge. This case was in this court on appeal before, and is reported in 84 Iowa, at page 655, 51 N. W. Eep. 145. The facts are there stated, and, as the cause was retried on the same issues, it is not important that we should restate them here. It is sufficient to say that the action is upon a promissory note, with a defense of want of consideration.

<p>Appeal from Davis District Court. — Hon. W. I. Babb, Judge.</p> <p>This is an action for tbe partition of real estate. There was a petition of intervention filed by George F. Bare, in which he claimed an interest in the land. A demurrer to the petition of intervention was sustained, and the intervener appeals.</p>

— Hon. Charles D. Goldsmith, Judge. Action at law to recover three times the value of certain alleged shade and ornamental trees, which the plaintiff claims were willfully cut .down by the defendant. There was a .trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

— Hon. H. Bank, Jr., Judge. This action was commenced May 20, 1891, by sei’ving an original notice on the local agent of the defendant. The action is upon a policy of insurance against loss by fire, issued to Nannie M. Smith in consideration of five dollars and twenty cents premium paid, and assigned, with the consent of the defendant, to the plaintiff.

<p>Appeal from Allamakee District Court. — Hon. L. O. Hatch, Judge.</p> <p>Action on two school orders. Trial to court. Judgment for plaintiff:, and defendant appeals.—</p>

H. M. Townee, Judge. Action at law to recover the possession of real estate. There was a trial by jury, and a verdict' and judgment for defendant. The plaintiff appeals.

<p>Appeal from Taylor District Court. — Hon. B. C. Henry, Judge.</p> <p>On November 27, 1887, the defendant was charged by indictment with having, on or about the third day of November, A. D. 1887, willfully, feloniously, deliberately and premeditatedly, and of his malice aforethought, hilled and murdered Emmett Eeed. The defendant was tried, found guilty of murder in the first degree, and the penalty of death fixed by the jury. Judgment was entered on the verdict, and, on defendant’s appeal, said judgment was reversed and the case remanded, on the eighth day of May, 1890. 45 N. W. Eep. 385. At the September term, 1890, of the district court, the case was continued; and on December 11, 1890, the defendant filed his petition for a change of venue on account of excitement and prejudice against him in said county, which petition was verified by him on the eleventh day of February, 1890. In support of this petition, defendant filed his affidavit, verified December 11,1890, together with the affidavit of seven citizens of the county. Affidavits were filed by the state in resistance, and on December 13,1890, the court overruled said petition for change of venue, to which defendant excepted. On December 13, following, the case was called for trial to a jury, and on the twenty-third the jury returned their verdict as follows: “We, the jury, find the defendant guilty of murder in the first degree, and fix his punishment to be imprisonment in the penitentiary, at hard labor, during his life.” The defendant moved to set aside the verdict, and for a new trial, for reasons stated, which motion was overruled, and judgment was entered against him on the verdict, from which judgment he appeals.—</p>

— Hon. J. H. Peeston, Judge. Action to recover damages resulting from the death of H. P. Ford. Trial to jury. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. George W. Wakeeield, Judge. The plaintiff is the owner of certain lots on Jennings street, in the defendant city.

<p>Appeal from Crawford District Court. — Hon. Charles-D. Cold smith, Judge.</p> <p>Action against a school treasurer and the sureties on his bond for an alleged balance due the district. Trial to court. Judgment for plaintiff. Defendants-appeal.</p>

<p>1 2 3 4 5 Trustee: Liability of Sureties. Where a will directs the appointment of a trustee to control the property of the estate, subject to the direction of the court, the bondsmen of one appointed "trustee under the will to take charge of the rents of real property” and who execute a bond undertaking faithful performance of the trust "according to the terms of the will and direction of the court,” are liable for notes converted by the trustee; all parties, including the court, having dealt with the defaulter as having all the power designed to be conferred on him by the will. See Lees v. Wetmore, 58 Iowa, 180, 12 N. W. Rep. 238.</p>

<p>1 3 4 Trust Declaration: Construction: heir. A writing provided that the beneficiary of a trust fund should draw nothing but the interest on the same during the life of her husband, and left the fund to others if she died without “heir.” The donee died without children, leaving as sole heirs her husband, and a mother whom donor had never seen. He habitually used “heir” and “child” as synonyms. The writing is not self explaining and is ambiguous in other respects. Held, parol is here admissible to fix the amount of the trust fund and to point out the persons entitled thereto. The word “heir” as here used means “child.”</p> <p>2 Trust Fund: Title in Beneficiary. Where notes are indorsed to a trustee “for the use of” another, the title is in the trustee, though the indorsement does not state the nature of the trust.</p>

<p>1 2 Negligence: Insufficient Petition. It is not negligence to allow a tooy nine years old to remain where small trees are toeing chopped down. A general allegation that the hoy’s foot was “negligently cut with an ax” is insufficient when it is not charged that the ax was negligently used.</p>

<p>3 2 1 4-5 6 Obstruction of Highway: Notice to Remove. A road recorded as sixty feet wide has a deep cut about twenty feet wide at bottom, and on the edge of the banks there is a wire fence. Plaintiff notified the road supervisor to remove it, and the latter gave a notice to remove, of nearly six months, to the landowner. No one but plaintiff complained, and he told the supervisor that he would be satisfied to peaceably obtain a forty foot road. Before this suit was begun, the fence was changed to leave forty feet. Held, such fence was a direct obstruction of travel under Code, 993, though it did not cross the road, and it could not be taken down without notice to the landowner. If the notice to the landowner does not exceed six months, its reasonableness can be questioned by no one but the landowner and should not be submitted to the jury. Serving notice on the owner for a forty foot road is, here, a defense to the supervisor, especially as such defense was not assailed.</p>

<p>Appeal from Cass District Court. — Hon. N. W. Macy, Judge.</p> <p>Action in equity to set aside a deed of conveyance of certain land. Decree was entered for the plaintiff. Defendants appeal.</p>

— Hon. Lot Thomas, Judge. The following is appellant’s statement of the issues: “On the eleventh day of August, 1891, the plaintiff filed in the district court of Olay county her petition, alleging, in substance, that in the month of July, 1890, she sold to the defendant certain real estate for the sum of eleven hundred dollars, and he was to pay and assume a mortgage thereon in the sum of six hundred dollars, and also to pay the expense of the last sickness andburial'of…

— Hon. J. H. Applegate, Judge. Action in equity for alimony. Pending a hearing ■on the merits, the district court made an allowance to enable the plaintiff to prosecute the case, and for temporary support, and from that order, the defendant appeals.

— Hon. J. L. Stevens, Judge. Action in equity to quiet the title to that part of the northeast quarter of the southeast quarter of section 36, in township 89 north, of range 20 west, fifth principal meridian, Iowa, Hardin county, lying east of the center of the Iowa river, containing about six acres. Each party claims by chain of title; also by prescription ; and each asks to be quieted in his title.

— Hon. W. I. Babb, Judge. G-. E. Whitlock is a registered pharmacist. On the third day of August, 1892, he filed an application in the court below for a permit to buy, keep, and sell intoxicating liquors for lawful purposes. He published a notice of his application, and served the same on the county attorney. The county attorney resisted the application, and a hearing was had, and the permit was granted. The county attorney appeals.

— Hon. L. G-. Kinne, Judge. This is an action at law to recover damages for a personal injury sustained by C. S. Tenney, the assignor of the plaintiff, by being struck by a locomotive engine on defendant’s railway. There was a trial by jury. At the close of the introduction of' the evidence in behalf of both parties, on motion of the defendant, the court instructed the jury to return a verdict against the plaintiff.

<p>Appeal from Polk District Court. — Hon. W. F. Con-bad, Judge.-</p> <p>The following is appellants’ statement, in argument, of the facts set out in the petition: “The plaintiffs were architects in the city of Des Moines. One J. F. Tierney, the owner of the realty described in the petition, employed them, at an agreed percentage of the cost of certain improvements, to plan, devise, and construct plans and specifications for the remodeling and rebuilding of the building. then standing upon the realty. By virtue of this employment, they were necessarily compelled to go, and did go, upon the premises, and into the buildings and improvements then standing, and measured the walls thereof, and dug into the earth about the foundation and examined the walls and foundations, and spent much time and labor in and upon the said buildings and improvements. Upon the said measurements and examinations, they devised and constructed, upon the said premises and in their office, plans and specifications for the erection and completion of the improvements then situate upon the said realty, and the owner accepted such plans and specifications. The plaintiffs’ duly filed their statement for a mechanic’s lien in Polk county, where the land is situated. The defendants purchased the property of J. F. Tierney with full knowledge of the existence of the claim of plaintiffs, and that they had not been paid for their labor. The plaintiffs brought suit in due time to foreclose their lien, and the defendants demurred to the petition, which was sustained. The plaintiffs appeal.”</p>

<p>Appeal from Franklin District Court. — Hon. D. E. Hindman, Judge.</p> <p>The plaintiff is the owner of a section of land in Franklin county, and she is a resident of Pennsylvania. The land, in whole or in part, was occupied and used by the defendant for the years 1884, 1885, 1886, and 1887; and the averments of the petition are that the occupancy was a willful trespass; and this action is to recover the damage therefor. The answer is a denial and pleads matter of defense and in mitigation. The cause was tried to a jury, that returned a verdict for the plaintiff, and from a judgment thereon the defendant appealed.</p>

<p>Appeal from Clay District Court. — Hon. George H. Carr, Judge.</p> <p>Action for damages. Verdict and judgment for defendant. Plaintiff appeals. From a ruling amending the order overruling the motion for a new trial, defendant appeals. Plaintiff having first served notice of his appeal, he will be treated as appellant.</p>

<p>Homestead: Exemption to Nonresident Heir. Under Code, 2008, a nonresident, adult heir can hold his share in the homestead of a deceased parent, though he has, before the death of the parent, signed a note waiving homestead and exemption rights.</p>

<p>Establishment of Highway: notice, a highway is not legally established, where a published notice of its laying out does not contain the names of certain nonresident persons who own the abutting land, according to the auditor’s transfer booh, and where no notice is served on a railroad company which runs aeross said abutting land. Code, 936.</p>

— Hon. D. Eyan, Judge. Action at law, on a policy of insurance to recover for the loss of a horse. After the evidence for the plaintiff had been submitted, the court directed the jury to return a verdict for the defendant, which was done. From the judgment rendered on the verdict, the plaintiff appeals.

<p>2 Costs — When Properly Taxed to One Getting Verdiet. Plaintiff sues for damages. Defendant counterclaims with, an undisputed note which is allowed him less a sum given plaintiff for damages. Held, the costs are properly taxed to defendant. 1 Evidence — Error without Prejudice. Where, in an action for fraudulent representations, it is clear that the value of the property sold has been grossly exaggerated, it is not prejudicial to have allowed some witnesses, whose competency is doubtful, to say what the property was worth.</p>

<p>Appeal from, Story District Court. — Hon. S. M. Weaver, Judge.</p> <p>The defendants were the owners of the property which became the capital stock of the Scandia Publishing Company, incorporated in Iowa with a capital stock of fifty thousand dollars, divided into shares, of ten dollars each, with its place of business at Story City, Iowa.' The company became incorporated in March, 1891, and in June thereafter, the defendants sold to the plaintiff twenty-five shares of the stock of the corporation for its par value, two hundred and fifty dollars, which plaintiff has fully paid up. This, action is brought to recover the amount thus paid, under averments that the purchase was made upon representations that the capital stock of the company, was of par value, and would pay a good dividend, and that the representations were fraudulently made. It is further averred that the company was incorporated with a view to cheat and defraud plaintiff and others to whom the stock should be sold, and that the stock was of but little or no value when sold to the plaintiff. The. answer puts in issue the facts pleaded as to the fraud, and upon the trial there was a verdict and judgment for plaintiff, from which defendants appealed.</p>

<p>Appeal from Story District Court. — Hon. S. M. Weayee, Judge.</p> <p>This is a suit in equity by which the plaintiff seeks to enjoin the defendant from causing water to flow through a drain 'tile on land of the plaintiff, to his damage, and for two hundred dollars damages for , injury to plaintiff’s land, which damages accrued up to the time of commencing suit. There was a hearing on the merits, and the plaintiff’s petition was dismissed. Plaintiff appeals.</p>

<p>Appeal from KeoJcuh' Superior Court. — Hon. Henby Bank, Jb., Judge.</p> <p>Proceeding- in equity to enjoin the defendant from casting water on plaintiff’s land. Plaintiff appeals from part of decree.</p>

<p>3 Condemnation for Cemetery Purposes: power of township-trustees. ■ Code 476, as amended, fry Acts Sixteenth General Assembly, chapter 130, section. 3, gives township trustees power to-condemn, land for cemetery purposes, “when it shall be deemed necessary.” Held, the trustees are exclusive judges of the existence of the “necessity.”</p> <p>2 3 4 Jurisdiction of District Court. The district court has no jurisdiction of such a condemnation proceeding until the trustees have determined that there is need of condemnation; and whether they have-made such determination, is a question for the court. Such action-fry the trustees is binding without notice, and nothing is to be-submitted to the jury except the amount of compensation due.</p> <p>1 Practice in Supreme Court: indefinite assignment. An assignment asserting that a demurrer, containing more than one ground,, was improperly sustained, is too indefinite.</p>

<p>2 3</p> <p>Recovery of Land Sold for Taxes: Limitation. Cutting and stacking hay on, and plowing fire breaks about wild land sold for taxes, by authority of the record owner, are acts of possession within Code, 902, which prescribes that actions to recover land sold for taxes must be brought within five years after the execution and recording of the tax deed; especially when the owner of the 'fee regularly paid taxes during the period of such occupancy.</p> <p>1 Same. That statutory provision has no application to wild, unoccupied prairie land.</p>

<p>4 5 6 7 Partition of Decedent’s Estate: When Allowed: bond not receivable. Such, partition proceeding may be begun before it is determined whether the personalty will pay debts, but no decree can be rendered till that question is settled, though petitioners give bond to pay all demands against the estate. Snyder v. Snyder, 75 Iowa, 255; 39 N. W. Eep. 297, followed.</p> <p>8 Adverse Possession: insanity. Title by adverse possession can not be acquired against a person insane.</p> <p>1 Transactions with Decedent. When plaintiff testifies to one transaction with decedent, defendant’s right to testify is limited to the same transaction.</p> <p>2 3 Evidence Insufficient to show that deed was without eonsideration and not delivered.</p>

<p>2 1 Right to an Open Railroad Crossing Not Absolute. The fact 'that a landowner must cross the track to reach a highway and his pasture, does not entitle him to an open crossing, when its construction would make collision with stock probable, and create much danger in the operation of the railroad. .</p> <p>3 Right to) Permit Gates to Remain Open. When it appears that serious accidents to stock are threatened if the gate is left open, the owner may be ordered by injunction to. keep it closed except When the crossing is being actually, and in good faith, used by passers, or to drive stock.</p>

<p>1 2 3 Homestead: Survivor’s Exemption: abandonment. Where a surviving husband neither occupies, nor intends to occupy, his deceased wife’s homestead, his undivided distributive share therein is subject to sale for his debts, although the only son and heir of the deceased has allowed the husband to control the homestead for his own benefit. See Code, 2007, 2008. Bwdiclc v. Kent, 52 Iowa, 585, 3 N. W. Bep. 643; Bradshaw v. Hwst, 57 Iowa, 748, 11 N. W. Bep. 672; Darrah v. Cunningham, 72 Iowa, 125, 33 N. W. Bep. 445; McDonald v, McDonald, 76 Iowa, 137, 40 N. W. Bep. 126, distinguished.</p>

<p>1 2 3 Service by Publication: Affidavit. An affidavit was mad© that personal service could not be made on defendants within the state. The petition was filed the day after said affidavit was verified. Held the effect of this affidavit is prospective. It is not limited to the day of verification, and covers the whole prescribed period for service for the term of court intended for the suit.</p>

<p>Default: Opening by Justice. A justice is not warranted insetting aside a default because defendant’s name is misspelled in the copy of the notice left with him, the original being correct and duly-served.</p>

<p>Appeal from Mitchell District Court. — Hon. John C. Sheewin, Judge.</p> <p>Action in equity to set aside certain conveyances of real and personal property, to recover the property, and for general equitable relief. There was a hearing on the merits, and. a judgment for the defendants. The plaintiff appeals.</p>

<p>Husband and Wife: medical aid given wipe. A husband is liable for medical services rendered the wife, at her request, while the two 2 are living apart under an agreement that the wife should have an allowance for support, if the physician has no knowledge of said matters.</p> <p>1 Practice in Supreme Court: certificate for appeal can not be enlarged by agreed abstract, and none but certified matters will be considered.</p>

<p>Appeal from Marshall District Cov/rt. — Hon. J. L. Stevens, Judge.</p>

— Hon. H. E. Deemer, Judge. Plaintiffs brought this action at law, aided by attachment, to recover from the defendants, Caplan & Nathan, for goods sold and delivered. The attachment was levied upon a certain stock of merchandise, as the property of the defendants. Levinston Brothers intervened, claiming to own the merchandise seized under the attachment.

<p>Appeal from Johnson District Court. — Hon. S. H. Fairall, Judge.</p> <p>In October, 1884, the north half of lot 20, in block 1, in BerryhilPs addition to Iowa City, was sold for taxes, and purchased by one J. W. Dvorsky, who assigned the certificate of sale to J. J. Novak on the tenth day of August, 1887. On the twenty-first day of December, 1887, the treasurer of Johnson county issued to Novak a deed, in pursuance of the sale for taxes; and by eonveyances, defendant Murphy is now the owner of the title derived from such tax sale. With a view to terminating the period of redemption, J. J. Novak, on the "twenty-third day of August, 1887, caused a notice to be served under the provisions of Code, section 894, and the proof of service of the notice is by an affidavit indorsed on the back thereof, as follows:</p> <p>“State of Iowa, Johnson County. I, John J. Lorack, Jr., of said county, being duly sworn, do upon my oath depose and say that I received the within notice for service on the twentieth day of August, 1887, •and that I served the same on E. G-. Stevens, therein named, at the place, date, and in manner, as follows: At Iowa City, Iowa, on twenty-third day of August, 1887, by reading to him the Within notice, and giving said E. G. Stevens a true copy! thereof. John J. Lor.ack, Jr.</p> <p>“Subscribed and sworn to before me by John J. Lorack, Jr., this twenty-third day of August, 1887. Max Otto, Clerk of the District Court in and for Johnson Co., Iowa.”</p> <p>The affiant, John J.Lorack, Jr., at the time of the service of the notice, was not in the employ of Novak, in any sense, except that he took the notice and made the service at the request of Novak, and received his pay for the service. On the fifteenth day of October, 1890, plaintiff brought this suit, asking that he be permitted to redeem from the sale for taxes, and that the tax deed be declared void. A trial was had upon issues joined, and the district court gave a decree for plaintiff,, .from which the defendants appealed.</p>

<p>Appeal from Clayton District Court — Hon. W. A. Hoyt, Judge.</p> <p>Action at law to recover the amount of certain assessments made according to the provisions of a policy of insurance, A demurrer to one of the divi•sionsi of the answer was overruled. The plaintiff ■elected to stand on the demurrer, and appeals.</p>

<p>Appeal from Polk District Court. — Hon. C< P. Holmes, Judge.</p> <p>Dependant was indicted and convicted of a liquor nuisance, and appeals.</p>

<p>Appeal from Dickinson District Court. — Hon. George H. Carr, Judge.</p> <p>Action for slander. Trial by jury. Verdict and judgment for defendant. Plaintiff appeals.</p>

— Hon. A. B. Thoenell, Judge. Chables R. Hannan is receiver for Kimball-Champ Investment Company, and both are parties defendant in this suit. About the first of May, 1890, the plaintiff entered into a contract with the Judd-Wells Company and C. B. Judd to furnish labor and building materials for twelve houses to be erected on lots in certain additions to the city of Council Bluffs.

Lot Thomas, Judge. Action to recover the possession of specific personal property. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. Lot Thomas, Judge. Proceeding to ascertain tbe damages caused by taMng land of tbe plaintiffs for right of way purposes. There was a trial by jury and a judgment, from wbicb tbe defendant appeals.

<p>Appeal from Pottawattamie District Court. — Hon. H. E„. Deemer, Judge.</p> <p>Action for the recovery of money deposited with defendants to secure surety on attachment bond. From an order sustaining a motion for a new trial as to defendant Wright, and overruling a motion for a new trial as to defendant Baldwin, defendants appeal.</p>

— Hon. H. E. Deemeb, Judge. Action to recover for personal injuries sustained by reason of a defective sidewalk. Verdict and judgment for plaintiff. Defendant appeals.'

— Hon. O. M. Waterman, Judge. Action in equity to declare two certain deeds, a mortgage, and a promissory note fraudulent and void, to set aside and cancel the same, and to enjoin the transfer of said note and mortgage. Decree was rendered in favor of the plaintiffs. Defendants appeal.

— Hon. A. B. . Thoknell, Judge. This is a suit in equity, and it involves the title to forty acres of land. There was a decree for the plaintiff. Defendants appeal.

— Hon. N. W. Macy, Judge. Action in equity to quiet in plaintiff .the title to certain real estate. There was a hearing on the merits, and a decree for the defendants. The plaintiff appeals.

— Hon. A. B. Thoenell, Judge. Action to subject real estate to the payment of a judgment. Decree for plaintiff, and the intervener appealed.

— Hon. Henby Bank, Jb., Judge. R. B. Geant is the traveling agent of the plaintiff company. On the sixteenth day of December, 1890, he purchased a ticket on defendant’s line of road from Memphis to Kahoka, both points being in the state of Missouri. Grant had with him as baggage two sample trunks.

— Hon. J. E,. F. McG-ee, Judge. Action at law to recover one half of the value of a. wall, and for its use. There was a trial by the court without the aid of a jury, and a judgment for the-plaintiff. The defendant appeals.

— Hon. H. C. Teayeese, Judge. Pboceeding to set aside the will of Richard Butcher, deceased. From a verdict and judgment sustaining said will, contestants appeal.

— Hon. Walter I. Smith, Judge. Action at law to recover attorney’s fees of the defendant for legal services rendered in prosecuting certain proceedings for contempt for the violation of injunctions restraining the keeping of nuisances by the sale of intoxicating liquors. There was a demurrer to the petition, which was sustained, and the plaintiff appeals.

— Hon. N. W. Maoy, Judge. Action at law, aided by attachment to recover of W. S. Bruen an amount alleged to be due. The intervener claims a lien on the attached property superior to that acquired by the plaintiff. There was a trial by the court, without a jury, and a judgment against the intervener, from which it appeals.

<p>Appeal from Benton District Court. — Hon. John B. Caldwell, Judge.</p> <p>Action on a promissory note. Trial to a jury. Verdict and judgment for defendants. Plaintiff appeals.</p>

<p>1 Rescission for Mistake: Unchallenged Pleading. Where issue is joined, by reply, on a defense that a contract was entered into by defendant though mistake of fact, and the jury finds, specially, that such mistake was made, a general verdict for plaintiff giving damages for the breach of said contract, should yield to the special finding.</p> <p>2 3 Motion Non Obstante, undisputed faets may be considered, in passing upon.</p>

— Hon. E. L. Burton, Judge. Action for the recovery of specific personal property and damage for its detention. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. James-D. Smythe, Judge. This is a suit in equity by which the plaintiff seeks-to enjoin-the defendant from making an excavation, and erecting a wall and a freight depot, in what is-known as “Front Street,” in the city of Burlington. The defendant answered the petition, and there was a hearing on the merits, which resulted in a decree for the plaintiff. Defendant appeals.

— Hon. S. H. Baieall, Judge. Action in equity to enjoin the defendants from keeping a liquor nuisance and for its abatement. A demurrer to the petition was sustained, and, the plaintiff having refused to plead further, a decree was rendered in favor of the defendants. The plaintiff appeals.

— Hon. Walter I. Smith, Judge. Action in equity to foreclose a mortgage. Defense, payment of the notes, and a claimed right of redemption from a certificate of sale under a mortgage foreclosure on a mortgage given by defendants to the Western Loan & Trust Company, which certificate plaintiff purchased. Decree dismissing the petition and cross petition, and taxing a part of the costs to defendants. They appeal.

— Hon. C. D. Goldsmith, Judge. Plaintive states, as his cause of action, that the defendant executed and delivered to him an instrument in writing as follows: 4'Dow City, Iowa, July 15, 1882. 4 ‘For value received I hereby guarantee the payment of the interest to accrue for two years from this date on twelve sundry notes signed by Charles R. Talcott and Daniel W. Grace (six notes each), aggregating the sum of three thousand, eight hundred dollars; same having been given in…

— Hon. H. M. Towner, Judge. In 1890 the defendant was cashier of the plaintiff bank, located at Crestón, Iowa. John Gibson was at that time president of the bank.

— Hon. Charles D. Goldsmith, Judge. Action at law to recover damages alleged to have been caused by the defendant in setting dogs upon colts owned by the plaintiff. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. J. L. Husted, Judge. The defendant was tried for the crime of murder in the first degree, was found guilty of murder in the second degree, and was adjudged to be imprisoned in the penitentiary at Anamosa at hard labor for the term of twenty years. From that judgment he appeals.—

— Hon. t). R. Hindman, Judge. The defendant was indicted for the crime of murder. He was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for five years, and he appeals.

— Hon. Geoege W. Paine, Judge. Quo waeeanto to determine the rights of the relator and the defendant to the office of councilman in the incorporated town of Arcadia. The district court gave judgment for the relator, and the defendant appealed.

— Hon. J. E. E. MoG-ee, Judge. This is a civil action by ordinary proceeding under chapter 6, title 20, of the Code, wherein the plaintiff asks, for reasons alleged, that the charter and franchise of the Iowa corporation “be ordered and adjudged forfeited, and the same be canceled and the said corporation dissolved, and that the defendant the Nebraska corporation, as well as the defendant the Iowa corporation, be required to show cause, if there be any, why such order and…

— Hon. John W. Habvey, Judge. Action to recover for occupancy of an alley. Answer pleading the statute of limitations. Demurrer to answer, overruled. Plaintiff excepts and appeals.

<p>Appeal from Des Moines District Court. — Hon. James D. Smythe, Judge.</p> <p>Suit in equity to foreclose a mortgage. From a decree in plaintiff’s favor the defendants appeal.</p>

— Hon. Lot Thomas, Judge.' The defendant was convicted of the crime of seduction, and adjudged to be imprisoned in the state penitentiary at Anamosa for the term of eighteen months. From that judgment he appeals.

— Hon. S. F. Balliet, Judge. Action to foreclose a mechanic’s lien. Mary E. Rawson and others, defendants, contracted with J. H. Robinson, who is also a defendant, to do the mason work in the erection of a brick building on a lot owned by them. The plaintiff subcontracted with Robinson to furnish the brick for the building, and they were so furnished; the last of them being delivered on the twenty-fourth day of June, 1891.

<p>Certiorari to Woodbury District Court. — Hon. A. Van Wagenen, Judge.</p> <p>The plaintiff is a practicing attorney, and the defendant is a.judge of the district court. This is a proceeding by certiorari to review an order made by the defendant by which the plaintiff was adjudged to be in contempt of court by reason of failing to produce certain books of account, kept by the Franz Brewing Company, before a commissioner, for the purpose of using the said books, or copies of parts thereof, in taking depositions in an action then pending.</p>

— Hon. A. E. Dewey, Judge. 1 This action is against M. J. Carney as principal, and G-. B. McG-all, Dennis Creeden, C. W. Jordan, and Michael Mitchel, as sureties on the official bond of said Carney as marshal of the city of Oskaloosa.

— Hon. L. O. Hatch, Judge. Defendant was indicted, tried, and convicted of a criminal offense, the exact nature of which is not stated, and he appeals.

<p>Appeal from PolJc District Court. — Hon. W. E. Conrad, Judge.</p>

— Hon. G-eoege W. Wakefield, Judge. Action at law to recover damages for tbe failure to deliver a team of horses. A verdict was returned in favor of defendant by direction of the district court, and from the judgment rendered on the verdict, the plaintiff appeals.

Lot Thomas, Judge. This case was brought under section 3408 of the Code, which provides that “parties to a question of difference which might be the subject of a civil action, may, without action, present an agreed statement of the facts thereof to any court having jurisdiction of the subject-matter.” Judgment was rendered in favor of the plaintiff, from which the defendant appeals, the trial judge having granted a certificate as provided in section 3173 of the Code.

<p>Appeal from Lee District Court. — Hon. J. M. Casey, Judge.</p> <p>Action for malicious prosecution. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.</p>

— Hon. James¡ D. Smythe, Judge. This is an action at law upon a promissory note, purporting to be signed by the firm of Steinbrecher & Hertzler, against the firm, and John Steinbrecher and A. Hertzler, the individual members thereof.

— Hon. J. H. Applegate, Judge. The following are the facts and conclusions of law as found by the district court: “This is a suit upon a promissory note for three hundred dollars, of date of October 20, 1890, in favor of plaintiff, and signed by the firm name of Koehler, Dickey & Co. Bach of the parties waived trial to a jury, and same is tried to the court without jury.

— Hon. F. C. Mitchell, Judge. On the seventh day of October, 1889, a colt belonging to plaintiff was killed by a train of cars on defendant’s line of road, at or near what is known as ‘ ‘Bellerton’s Crossing,” in Wapello county.

— Hon. P. W. Burr, Judge. This is a proceeding in probate, involving the liability of the defendants as sureties upon a guardian’s bond. There was a finding and judgment against the defendants, and they appeal.

Amealfrom Woodbury District Court. — Hon. A. Van Wagenen, Judge. Action at law to recover from defendant an amount alleged to be due for board furnished to another. There was a trial by the court without a jury, and a judgment for the plaintiff. The defendant appeals.

— Hon. Geokge W. Wakefield, Judge. Plaintiff brings this action to recover judgment upon a promissory note executed to him by the defendants, John Anton, Peter Anton, and Nic Anton. The defendants Peter Anton and Nic Anton answered. They admit that they signed said note, and aver that they did so as sureties for John Anton.

— Hon. John T. Stoneman, Judge. Action at law on a contract for insurance.

<p>Appeal from Aclams District Court. — Hon. W. H. Tedeord, Judge.</p> <p>Action to- foreclose certain mortgages. Decree for defendant appellees. Plaintiffs and defendant Lombard appeal.</p>

— Hon. A. Van Wagenen, Judge. Action in equity to quiet the title to real estate. There was a hearing on the merits, and a decree in favor of the plaintiffs, from which the defendants appeal.

— Hon. A. W. Wilkinson, Judge. Suit in equity to set aside ,a conveyance of real estate for fraud. From a decree in favor- of plaintiff both parties appeal. The defendant Knapp, having first perfected his appeal, will be called the appellant.

<p>Appeal from Woodbury District Court. — Hon. George W. Wakefield, Judge.</p> <p>Action to recover for overcharges upon freight. Verdict and judgment for plaintiffs. Defendant appeals.</p>

<p>Appeal from Lee District Court. — Hon. J. M. Casey, Judge.</p> <p>Action in equity to foreclose a mortgage. Judgment and decree for plaintiff as prayed. The defendant J. L. Keithler appeals.</p>

— Hon. J. D. Gifein, Judge, Action for personal injury alleged to have been caused by negligence in the operation of defendant’s train. .Judgment for plaintiff, and the defendant appeals.

— Hon. A. Van Wagenen, Judge. June 21, 1890, plaintiff commenced this action to recover possession,' as absolute owner thereof, of a certain stallion known as “Chere,’’ purchased by defendant October 21, 1887, from L. M. Hartley, of the alleged value of five hundred dollars. Plaintiff alleges that its ownership and right to the possession of said horse was acquired by the purchase of a mortgage on said horse, given by defendant to L. M'.

’ Appeal from Ringgold District Court. — Hon. W. H. Tedfoed, Judge. The plaintiff is the executor of the last will and testament of'Jacob W. Unangst, who died in Mercer county, Illinois, on the nineteenth day of October, 1885. During his lifetime, he signed, as surety for his son, D. M. Unangst, a note to Mrs. Agnes Whan.

<p>1 2 6 Slander: Justification. Where evidence tended to show that plaintiff cut harness belonging to the defendant’s father and was seen then leaving the father’s granary, and that granary soon after was found to be on fire, Held, that in an aotion accusing plaintiff of setting said fire, a verdict for defendant will stand. Plaintiff was, at any rate, entitled to nominal damages, only, and a failure to award such is not ground for reversal.</p> <p>3 Assault: Question for Jury, When. Whether a mere touching of the person is assault and battery, was, in this ease, properly sent to the jury.</p> <p>4 5 Plea of Guilty Not Conclusive in Civil Suit. Pleading guilty of assault and submitting to a nominal fine does not prevent showing in a suit for the assault that defendant was not guilty of it.</p>

<p>Appeal from Jones District Court. — Hon. James D. Gteeen, Judge* •</p> <p>Action to recover for costs and expenses paid in maintaining deceased, an insane person, at the state hospital, and at plaintiff’s county poorhouse. The case was tried to the court, and judgment rendered in favor of the defendant. Plaintiff appeals.</p>

<p>4-5 6 7 8 Fraud in Purchase: Rescission. A charge that a rescission of a sale is warranted if the buyer intended to defraud the seller when the goods were ordered or when they arrived, is erroneous. The fraud designated must exist at or before the purchase.</p> <p>9 Same. The seller should not be required to prove fraudulent representation and concealment of insolvency. Insolvency is simply evidence on the main question' — fraudulent intent.</p> <p>11 12 Same Evidence. Á buyer from a fraudulent vendee has the burden of showing that he bought without knowledge of the fraud or notice o£ facts which would have put an ordinarily prudent man on such inquiry as would reveal the fraud; though the seller pleads that defendant knew of the fraud, and the latter denies the allegation in his answer.</p> <p>13 Buyer for Value. Payment with antecedent debt, does not constitute.</p> <p>2 Other Frauds. Where vendee, without taking them from the carrier that brought them to him, reships goods to another person, evidence of similar frauds is admissible.</p> <p>3 Opinion as to Intent, when admissible. The seller may, after testifying that the buyer claimed to be buying for one purpose and showing that the purchased goods were used for an entirely different one, give his opinion as to defendant’s intent in buying..</p> <p>1 Assessor. On the question whether the buyer from a fraudulent vendee had means to buy, the assessor at the buyer’s residence may say that the buyer had but little property there for two years before the purchase.</p> <p>10 Practice. Where fraudulent representations are admitted under a general allegation of fraud, the impropriety of such admission can not be first raised by an exception to an instruction.</p>

— Hon. W. F. Conrad, Judge. Action at law to recover damages alleged to have been caused by the wrongful acts of defendants, in injuring the reputation and good name of plaintiff, and in depriving her of her husband and of a home, in causing her husband to ill use her and for the loss of social position, and for mental and physical suffering. There was a trial by jury, and a verdict for the plaintiff in the sum of four thousand dollars.

— Hon. George W. Wakefield, Judge. This is a suit in equity to quiet the title of the plaintiff in certain real estate. The defendants answered the petition, and there was a hearing on the merits, and a decree in favor of the plaintiff, from which she appeals, -for the reason that the decree does not grant the relief she demanded.

— Hon. C. P. Holmes, Judge. Action in equity to ascertain and settle the order of payment of certain claims for mechanics’ liens. There was a hearing on the merits, and a decree from which J. H. Queal & Co. appeals.

— Hon. Scott M. Ladd, Judge. Plaintiff brings this action to recover for wages as a farm hand, and for other items of account, including money loaned. The account aggregates one thousand, three hundred and eighty-four dollars and forty-two cents, upon which there is a conceded credit of two hundred and twelve dollars and fifty cents, and a balance claimed of one thousand, one hundred and seventy-one dollars and ninty-two cents.

- — Hon. Scott M. Ladd, Judge. Action at law to recover damages for levying, upon an execution, on certain personal property, and selling the same. It is claimed the plaintiff held a valid chattel mortgage upon the property. There was a trial by jury, verdict and judgment for plaintiff, and the defendant appeals.—

Appealfrom Wapello District Cowt. — Hon. J. C. Mitchell, Judge. Action in equity by the guardian of the children of defendant to recover certain pension money drawn by defendant, and to make the same a lien upon certain real estate, and for an accounting. Prom a decree dismissing plaintiff's bill, be appeals.

— Hon. Joseph C. Mitchell, . Judge. Plaintiff’s action is in two counts. In his original petition he states as his cause of action, in the first count, that, “at a point on said road where the same crosses the public highway,” the defendant negligently injured three of his colts.

— Hon. D. R. Hindman, Judge. Action against defendants for the amount due on a note which it is alleged defendants agreed to pay as a part of the purchase price of land. Trial to court, and decree for plaintiff. Defendants appeal.

— Hon. J. L. Stevens, Judge. ACTION in equity for judgment on two promissory notes executed by defendants to plaintiff in part payment for a steam engine, and for decree foreclosing a mortgage on real estate given to secure said notes. Defendants answered, alleging a warranty of said engine, a breach thereof, and asked to recover damages. Plaintiff replied, denying the warranty.

<p>Appeal from Mitchell District Court. — Hon. John C. Sherwin, Judge.</p> <p>Action for the recovery of a commission for selling a farm. Judgment for plaintiffs on'one count of petition, and plaintiffs’ case dismissed as to the other count. Both parties appeal.</p>

<p>Instruction given need not be repeated : sentence not excessive.</p>

<p>Evidence insufficient to show that a deed was intended to be a lease for life.</p>

<p>Pleading over, waives ruling on demurrer.</p>

— Hon. S. M. Weaver, Judge. This is a suit in equity, by which the plaintiff seeks to set aside a a deed to certain real estate, and to recover an undivided interest in eighty acres of land, in which she claims to be a tenant in common with the defendants. The cause was fully heard on its merits, and there was a decree for defendants. Plaintiffs appeal.

— Hon. D. B. Hindman, Judge. Action for a decree for specific performance to convey real estate. Decree for plaintiff, and defendant appealed.

— Hon. H. Bank, Judge. The plaintiff is a vendor of milk in the city of Keokuk, which he delivers to his customers from a wagon. The defendants are the owners of the Keokuk elective railway. The plaintiff attempted to drive his team and wagon across the defendants’ railroad track at the intersection of two streets in the city, and his wagon was struck by one of the defendants’ cars, and he brought this action to recover damages for the injury resulting from the collision.

— Hon. John C. Sherwin, Judge. This is a controversy involving the right of possession of a quarter section of land, and the rent for the occupancy of the same for the year 1891. The action was tried in the court below as an equitable proceeding,and the plaintiff’s petition was dismissed, and he appeals.'

— Hon. H. E. Deemer, Judge. This is a suit in equity, which involves the ownership of a farm of two hundred acres in Shelby county. The plaintiff claims that he is the real owner, and that the defendants hold certain deeds which are in the form of conveyances of the title, but that the same, in truth and fact, amount to a mortgage, and he seeks by this action to redeem the land from the mortgage lien.

— Hon. N. W. Macy, Judge. Action to recover for personal injuries sustained because of an. alleged defect in a public sidewalk. Verdict and judgment for plaintiff. Defendant appeals.

- — Hon. W. F. Brannan, Judge. Action to recover damages for an assault and battery. Verdict and judgment for the plaintiff, and the defendant appealed.

<p>Appeal from loica District Court. — Hon. S. H. Eairall, Judge.</p>

The defendant was convicted of the crime of keeping a house of ill fame, and judgment entered against him, from which he appeals.—

<p>Appeal from Henry District Court. — Hon. W. I. Babb, Judge.</p> <p>The defendant was indicted for the crime of larceny. He was found guilty by the verdict of a jury, and from a judgment on the verdict he appeals to this court.</p>

G-. W. Wakefield, Judge. Between May 6 and December 18, 1890, the plaintiff sold to the defendant lumber to the value of two thousand, thirty-six dollars and twenty-eight cents, for which amount this action is brought. During the period of such sales, the defendant firm consisted of S. L. and John Staebler and Jacob Henn.

— Hoij. J. H. Preston, Judge. Action for the specific performance of an alleged agreement for the conveyance of real estate. There was a hearing on the merits, and a decree in favor of the defendants. The plaintiff appeals.

— Hon. George W. Wakefield, Judge. The defendants in the above entitled cases were indicted, and upon separate trials they were found guilty of stealing a cow, and they appeal.

<p>Appeal from Clarice District Court. — Hon. H. M. Towner, Judge.</p>

— Hon. S. H. Fairall, Judge. Indictment for an assault with intent to commit rape. Verdict of not guilty, and the state appealed.

<p>Appeal from Km-rison District Gowrt. — Hon. George W. Wakefield, Judge.</p> <p>Action for a divorce. Decree for plaintiff. Defendant appeals.—</p>

— Hon. A. W. Wilkinson, Judge. The plaintiff seeks by this action to recover a debt against the defendant Ann B. Ludden, and, as part of the'relief demanded, she asked that the judgment be made a lien on forty acres of land which it is alleged was set off to Ann Ludden as the widow of Amenzo Ludden, deceased.

— Hon. A. R. Dewey, Judge. This is an appeal from an order of the court removing D. S. Crawford as guardian of two minor children of W. T. Crawford, deceased. By the same order, the court appointed Sarah C. Crawford guardian of said children. D. S. Crawford appeals.

<p>Individual liability of administrator. One is so liable who colludes in a sale below value, and to deprive creditors of assets.</p>

— Hon. Geo. W. Wakefield, Judge. This is an appeal from a decree appointing a receiver to take possession of certain real estate pending the foreclosure of a mortgage. The appeal was taken by L. Knaebel, who intervened as a defendant in the action.

— Hon. A. Van Wagenen, Judge. Action for rent. There was a demurrer to the second division of the answer, which the court sustained, and from the ruling the defendant appealed.

<p>Alteration of deed: laches: estoppel.</p>

<p>Appeal from Appanoose District <fowt. — Hon. H. C. Traverse, Judge.</p>

<p>Evidence sufficient to sustain injunction on liquor nuisance.</p>