Volume 92 — Iowa Reports

<p>Appeal from Iowa District Court. — Hon. S. H. Fairall, Judge.</p> <p>Action for work, labor, and board. Judgment for plaintiff. Defendant appeals.</p>

— Hon. H. M. Towner, Judge. This is a suit in equity by which the plaintiff demands the cancellation of certain promissory notes. and mortgages executed by the plaintiff to the defendant. There was a hearing on the merits, and a decree for the plaintiff. Defendant appeals.

— Hon. D. Eyan, Judge. Action for damages resulting from a defective bridge. With the above entitled action was consolidated that of S. Fulmer v. Mahaska County, the cause of action having been assigned to E. L. Fulmer. Judgment for defendant for costs, and the plaintiff appealed.

— Hon. H. M. Towner, Judge. Proceeding to vacate a decree and sale of real estate thereunder, and for a new trial. A demurrer to the petition was sustained, and judgment was rendered in favor of the defendants for costs. The plaintiff appeals.

— Hon. W. D. Tisdale, Judge. Indictment for publicly professing to treat diseases while an itinerant vendor of drugs, nostrums, etc., without license. The district court sustained a demurrer to the indictment, and the state appealed.

<p>Appeal from Lyon District Court. — Hon. Soott M. Ladd, Judge.</p>

— Hon. S. P. Balliet, Judge. Plaintiff, a judgment creditor of an insolvent corporation known as the Des Moines Baseball Association, asks to charge the defendants, as stockholders in said corporation, with said indebtedness, upon the following grounds: “That in organizing said corporation no notice was published, and especially no notice stating the highest amount of indebtedness to which said corporation was to be subject, and the articles of incorporation did not fix the…

— Hon. C. M. Waterman, Judge. Action upon a policy of insurance issued by defendant company upon the life of John Doerr. The district court sustained a demurrer to defendant’s answer, and, defendant electing to stand upon its answer, judgment was rendered against it, and it attempted to appeal.

— Hon. P. B. Wolfe, Judge. Action at law to recover fees alleged to be due the plaintiff for services rendered by him as constable. There was a trial by the court without a jury, and a judgment in favor of the plaintiff for a part only of the amount claimed. Prom that judgment he appeals.—

— Hon. W. I. Babb, Judge. Plaintiee brings this action to recover possession of certain lands situated in Lucas county, Iowa. She avers that she is the sole and absolute owner of said lands, and shows as her chain of title an original entry thereof by William McQuary, and a conveyance June 17, 1890, from William McQuary to her.

— Hon. J. L. Stevens, Judge. Action at law to recover damages for an alleged malicious prosecution. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

awle District Court. — Hon. C. E. Couch, Judge. On the the second day of April, 1888, Elizabeth M. McPherson, deceased, who was then the owner in fee of certain lands in Black Hawk county, conveyed the same to the defendant, Martha E. Berry, for the expressed consideration of twelve thousand dollars; the real consideration, however, being an agreement on the part of this defendant to care for' and support Elizabeth M. McPherson and her son Henry, who was and is feeble…

— Hon. D. Ryan, Judge. In 1887, the firm of Hampe Brothers was the owner of forty acres of land in Louisa county, Iowa, on which there was a frame dwelling, sixteen by eighteen feet, and a log house of the same dimensions, the two buildings being two feet apart.

<p>2 3 4 Survey: Center of Section. Act of Congress of February 11, 1805, provides that boundaries not then run or marked shall be ascertained by running straight lines from established to opposite corners. Code, Iowa, 373, requires county surveyors to be governed by act of congress and the instructions of the secretary of the interior. In 1868, the land department instructed government surveyors that where no such lines had been run, said act required the ‘'intersecting” method, Eeld, this construction is binding upon this court, and the center of a section must be found by that method; i. e., such center is that point where a line drawn from the quarter corner on the east and the quarter corner on the south, to the opposite quarter corner, intersect.</p> <p>1 Practice: continuance: costs. Error, ‘if any, in allowing a continuance and refusing to tax costs of term to applicant, is harmless where it does not appear that there were such costs.</p>

— Hon. S. M. Weaver, Judge. Action at law to recover the amount of plaintiff’s bid at tax sale for certain property alleged to have been defectively described in the tax list and in the certificate issued to him, and the amount of subsequent taxes paid by him as purchaser of the property sold for taxes. The case was tried to the court without a jury, judgment rendered for defendant, and plaintiff appeals.

— Hon. W. I. Babb, Judge. Dependant was charged with having, on the twenty-third day of February, 1893, committed a rape upon Ella Shelton, a female over thirteen years of age. He was convicted of an assault with intent to commit a rape, and moved for a new trial, on the ground that the verdict was against the evidence and contrary to law, and because of misconduct of the county attorney.

— Hon. • James D. Smythe, Judge. Action in equity to recover the amount due on a promissory note, and for the foreclosure of a mortgage given to secure its payment. There was a hearing on the merits, and a decree in favor of the plaintiff. The defendants appeal.

— Hon. J. H. Applegate, Judge. . Action to foreclose a mortgage on certain lands in Dallas county, executed by defendant Wetmore to M. D. McFarland to'secure the payment of certain promissory notes, which notes and mortgage were assigned to plaintiffs before due.

— Hon. H. M. Towner, Judge. Action for a divorce. There was a hearing on the merits, and a decree for a divorce, as demanded. The defendant appeals.

— Hon. D. E. Hindman, Judge. James Welsh is one of the plaintiff firm. Defendant was the owner of a section and a--, half of land in Hamilton county, Iowa, and he agreed with James Welsh that if he could find him a purchaser for the farm he would pay him a commission. At first there-was an agreement that if a purchaser was found that would pay for the farm forty thousand dollars, the commission should be six hundred dollars.

— Hon. A. B. Dewey, Judge. Action in equity to enjoin the obstruction of a highway. Judgment against plaintiffs for costs, and they appeal.

— Hon. Scott M. Ladd, Judge. Action at law to recover damages for breach, of warranty in the sale of a stallion. The eas.e was tried to a jury. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. S. F. Balliet, Judge. Action on the official bond of defendant Wilkin-' son, as clerk of the court. The sureties alone appeared, and judgment being entered against them, they appeal upon a certificate of the trial judge, as follows: “Be it remembered that in the above entitled cause are involved the following questions, marked numbers 1 and 2, to wit: Number 1.

— Hon. N. W. Maoy, Judge. This is an action to recover damages for the death of William D. Talty, the minor son of' the plaintiff. The death of the deceased was caused by the caving of a bank of sand at or near the north line of Fourth street, in the city of Atlantic.

<p>Recording Acts: assignment op mortgage. G. borrowed of D. The loan was evidenced by a note made to D.’s wife and secured by a trust deed naming her as cestui and D. as trustee. Mrs. D. never had any interest in the note or trust deed. D. sold the note to plaintiff. No evidence of the sale was recorded. Before maturity, G. obtained a loan of M. to pay off the D. note, and M. took a mortgage on the land. He did pay it to D. who then and there, alone, satisfied the trust deed and embezzled the money. Meld, the fact that Mrs. D. did not join in the satisfaction can not avail plaintiff. It simply enables him to assert against M. whatever Mrs. D. could do; and she never had any equity in the land because she had no interest in the note.</p>

<p>Appeal from Cedar District Court. — Hon. J. H. Preston, Judge.</p> <p>Action to quiet title. Decree for defendant Levy, administrator. Plaintiff and defendant Davis appeal.</p>

— Hon. J. L. Stevens, Judge. Action of right to recover the possession of lot number 17, block number. 91, in the city of Boone. On motion of the plaintiffs the cause was transferred to the equity side of the calendar, and tried to the court. Decree for plaintiffs, and defendant appeals.

— Hon. D. Eyan, Judge. Action in equity to compel the defendant to collect and pay an assessment on two certificates of membership held by the plaintiff. There was a hearing on the merits, and a decree for the plaintiff. The defendant appeals.

— Hon. H. E.Deemeb, Judge. Action for the recovery of damages for the death of Frederick J. Hawley, a minor child. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. Henby Bank, Jb., Judge. Action at law to recover attorney’s fees. The cause was tried before the court without a jury, and a judgment was rendered for the plaintiffs for three hundred dollars. Defendant appeals.

— Hon. Scott M. Ladd, Judge. Action for the value of a horse killed because of a defective bridge. Judgment for plaintiff, and the defendant appealed.

<p>Appeal from Mahaska District Court. — Hon. D. ' • Ryan, Judge.</p> <p>Suit in equity to enjoin an alleged liquor nuisance. The petition alleges that the defendant and one John Smith, in a certain building in the town of Elida, in Mahaska county, sold and kept for sale intoxicating liquors, contrary to law. There was a trial to the court, decree against Smith on default and against the building and lot upon which it is situated, also an order dismissing the petition as to defendant, Elizabeth Price, and the state appeals.</p>

— Hon. P. B. Wolfe, Judge. Action at law to recover damages for the death of James Keefe, alleged to have been caused by negligence on the part of the defendant. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. Hatch, Judge. L. O. Injunction to restrain the defendants from opening a public alley. Decree for defendants, and the plaintiffs appealed.

<p>Appeal from Woodbury District Court. — Hon. George W. Wakefield, Judge.</p> <p>Appeal from the ruling of the court dismissing plaintiff’s action, and rendering a judgment for defendant, notwithstanding the verdict, in an ad quod damnum proceeding.</p>

<p>1 Master and Servant: contributory negligence. A brakeman was ordered to go to the head of his train, to flag. He knew that ties were being thrown out of a ear in that train by men who were not warned of his passing, and who could not see him until he came opposite the door of that ear, or nearly so. While passing the opening he was injured by a tie thrown out of it. Held, he was. guilty of negligence, and would have been so if he had been directed to go by the particular route which he took, and directed to. hurry.</p> <p>•2 Practice. It is not error to refuse letting defendant plead a settlement alleged to have been made long before the trial, after plaintiff has closed his evidence.</p>

— Hon. S. F. Balliet, Judge. Action of replevin to recover certain personal property. There was a trial by jury, which resulted in a verdict ■ and judgment for plaintiff. Defendant appeals.

— Hon. John O. Sheewin, Judge. Appeal from an order dismissing the petition of David M. Benton, guardian of George O. Benton and Grace Benton, asking that certain money in the hands of E. L. Smalley, as guardian of their property, be transferred to David M. Benton, who is the duly appointed guardian of their persons and property within and for the county of Trempealeau, in the state of Wisconsin.

— Hon. N. B. Hyatt, Judge. Action at law to recover the possession of specific personal property. From a judgment in favor of the defendant, rendered on her motion, the plaintiff appeals.

— Hon. A. YanWagenen, Judge. Action to recover damages for alleged negligence causing the death of plaintiff’s intestate. The case was tried to a jury, and a verdict returned in favor of the plaintiff for one hundred dollars.

— Hon. Scott M. Ladd, Judge. Action to recover specific personal property. Trial to a jury. At the conclusion of the testimony the court directed a verdict for plaintiff, and defendant appeals.

— Hon. Lot Thomas, Judge This is a suit in equity, by which the plaintiffs claim title to, and possession of, certain land, and they demand that said title and possession be quieted as against the defendants. A writ of injunction was invoked and granted, by which the defendants were restrained from taking the possession of the land in dispute. The district court entered a decree dismissing the plaintiffs’ petition, and they appeal.

<p>1 Railroads: Negligence: employee. Assuming that a plaintiff who, knowing that it was customary to cut a train at a certain point, stepped on the track at once after the first section had passed, was negligent, the jury might still allow him to recover for injury by the rear section, if the employees on that section could see him on the track when the rear end of the train was yet three hundred feet from him.</p> <p>2 Who is engaged in “operating” the road. A section foreman engaged in repairing the track for the present operation of trains, is engaged in the business of “operating a railroad” within Code, 1307.</p> <p>3 4 Instructions: Construed. Where an injury totally disables for a time and merely lessens earning capacity for another period, an instruction allowing the amount that could have been earned during the first period and also for “any decreased capacity” to earn money in the past, means that the allowance for “decreased capacity” applies to that time only in which the injured person could work, but not to his full capacity.</p>

F. R. Gaynor, Judge. Action at law to recover damages for delay in the shipment of thirteen cars of cattle from Genesee, Idaho, to Sioux City, Iowa. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— Hon. Fred O’Donnell, Judge. Action at law to recover damages alleged to have been caused by negligence upon the part of the defendant, which resulted in the -death of the plaintiff’s intestate. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. A. YanWagenen, Judge. Action to recover the value of board and the use of a room furnished by the plaintiff to the minor son •of defendant. There was a trial by the court on an agreed statement of the facts, and a judgment for plaintiff for the amount of her claim. The defendant appeals.

— Hon. D. Ryan, Judge. On August 22, 1889, Haydock commenced this action against the defendant, Patton, claiming immediate possession of certain chattel property held by the defendant, as sheriff, under attachments, claiming that the attachments were void, on account of a failure to deposit or tender to parties holding prior chattel mortgages upon property, the amount due thereon.

— Hon. A. R. Dewey, Judge. The defendant was indicted in the district court of Keokuk county, Iowa, for the crime of murder, and, upon trial, was found guilty “of an assault as charged in the indictment.” Judgment was entered as follows: “It is therefore ordered and adjudicated by the court that the defendant, Bruce Belle, pay a'fine of fifteen dollars and costs of this prosecution to the extent of fifty dollars, and, in default of the payment thereof, an execution issue…

— Hon. Lot Thomas, Judge. Suit in equity to set aside a conveyance of land for fraud. Decree for plaintiff,' and defendant appeals.

— Hon. A. VanWagenen, Judge. Actions at law to recover damages for personal injuries alleged to have resulted from negligence on the part of the defendants. In each case there was a trial by jury, and a verdict and judgment for the plaintiff. Defendant, the Boston Investment Company, appeals.

— Hon. C. M. Watee- ■ man, Judge. • Plaintiff states, as her cause of action, that deceased, while in the employ of the defendant, and while walking on one of its tracks, was, without fault or negligence on his part, run upon by one of defendant’s engines, and so injured that he died; that said engine was negligently run upon deceased, “without giving any warning, and while the train was moving at a slow rate of speed, so that the same could have been stopped before the…

<p>Appeal from Dickinson District Court. — Hon. Geobge H. Cabb, Judge.</p> <p>Action for the recovery of personal property. Verdict and judgment for plaintiff. Defendant appeals.</p>

— Hon. H. M. Towner, Judge. Action to compel specific performance of contract in parol for the purchase of land, or to recover damages for a breach thereof, upon the claim that defendant had received part of the purchase price in part performance of said contract. Defendants demurred to the petition, and, the demurrer being sustained, and plaintiff refusing to further plead, judgment was entered against him, from which he appeals. We have no argument for appellees.

<p>Insurance: Construction of Policy. A policy allowing use “for any mercantile purposes,” does not allow a restaurant. Kinne, J., dissents.</p> <p>2 Practice: Supreme Court: second appeal. Such a construction made on first appeal remains the law of the case, though there be evidence on second trial, that the term “mercantile purposes” may mean “restaurant.”</p> <p>4 Evidence. Before it can be shown that gasoline may be used in a building used “for mercantile purposes” in spite of a clause in the policy forfeiting it, on the ground that permitting a certain use of a building allows that to be used which is customarily used in such a building, it must first be shown that such use of the building was permitted.</p> <p>1 Notice to agent. While notice to an agent is binding on principal though the agent was not, at the time notice is given, employed in the work of his agency, a talk about a building belonging to another than the policy holder and which was insured, is not notice as to the building in controversy.</p> <p>3 Same. Admissions of a soliciting agent tending to show that he gave notice to the company, are inadmissible.</p>

— Hon. J. H. Hendebson, Judge. Action for damages caused by diverting water from a flowing well. Verdict and judgment for plaintiff. Defendant appeals.

<p>Appeal from Floyd District Court. — Hon. P. W. Burr, Judge.</p> <p>Action for damages for an assault and battery. Judgment for the plaintiff, and the defendant appeals.</p>

<p>Appeal from Palo Alto District Court. — Hon. G-eorge H. Carr, Judge.</p> <p>Action at law upon.a policy of fire insurance. Trial to a jury, verdict and judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Woodbury District Court. — Hon. George W. Wakefield, Judge.</p> <p>Action at law to recover damages which resulted from the death of the minor son of the plaintiff, alleged to have been caused by negligence on the part of the defendant. When the evidence had been fully submitted, the jury, on the motion of the defendant, was instructed to return a verdict for it, which was done, and judgment was rendered on the verdict. The plaintiff appeals.</p>

Caldwell,'Judge. This is an action for the partition of -certain real estate. There was a decree for the plaintiffs. Defendants appeal.

— Hon. Soott M. Ladd, Judge. This action is against the Dubuque & Sioux City and the Illinois Central Railroad Companies; the former being the owner and lessor, and the latter the lessee and operator, of what is known as the Illinois Central Railroad.

— Hon. Henry Banks, Jr., Judge. Action for injury to stock shipped on defendant’s line of road. Judgment for plaintiffs, and the defendant appealed.

<p>Appeal' from Delaware District Cowrt. — Hon. Fred •O’Donnell, Judge.</p> <p>Action for the recovery of the value of a horse. Verdict for plaintiffs. Defendant appeals.</p>

<p>1 2 Statute of Limitation: New Promise. A wrote, “let me know if you intend to settle with me about the note I hold against you.” B. answered, “I received your letter; will come up after harvest, and the note, you know that I will pay what I can, and what is right.” Eeld, not a sufficient admission to remove bar of the statute.</p>

<p>1 Land Sale Commission. Where one procures a buyer ready and willing to take land on terms made by the owner, it is no defense that the owner, knowing this, voluntarily sells to that buyer on different terms.</p> <p>2 Evidence. Statements of and acts by defendant in plaintiff’s absence, looking toward a revocation of an agent’s authority to sell, are not binding on plaintiff.</p>

<p>1 Eailroads: Lost Baggage: evidence. One who writes a railroad to send its “usual permit," enabling travelers to cheek jewelry, can not say that he is ignorant of a rule requiring such permits.</p> <p>2 3 4 Evidence. It is not necessary, in order to waive such a rule, that a receiving baggage man should have actual notice that the goods offered for checking are jewelry; neither can there be a recovery because the plaintiff had no actual knowledge of such a rule. In either case it is sufficient that ordinary care would have obtained the knowledge.</p> <p>1 Acceptance of Bond. A bond which is returned on account of defective acknowledgment, is not accepted.</p>

— Hon. F. R. G-aynor, Judge. Action at law upon an alleged contract to recover the sum of one hundred and twenty dollars as commission or compensation for procuring a purchaser for certain real estate.

— Hon. W. 1. Babb, Judge. Plaintiff’s assignor contracted with the defendant company to transport a railroad grader’s outfit from Ottumwa, Iowa, to Lathrop, Missouri, at an agreed-price of thirty-five dollars per car.

— Hon. George W. Wakefield, Judge. Proceeding to establish a claim against the estate of D. H. Shannon, deceased. Trial to a jury. Verdict and judgment for defendants. Plaintiff appeals.

— Hon. S. F. Balliet, Judge. Peo deeding to establish a claim against the estate of T. E. Brown, deceased. Trial to a jury. Verdict by direction of the court for defendants. Plaintiff appeals.

— Hon. George W. Wakeeield, Judge. Action in equity to correct an alleged mutual mistake in a deed of conveyance in the description of. the land. Defendants denied that there was any mistake. Decree was entered for the plaintiff. Defendants appeal.

— Hon. F. B. Gaynor, Judge. Plaintiee asks to recover on an instrument in writing as follows: “Le Mars, Io., May 19,1884. “In consideration of the sale of my land in 31, 93, 46, through agency of Geo.

— Hon. S. F. Balliet, Judge. Action to recover damages for the alleged breach of a written contract. There was a judgment for the plaintiff, and the defendants appeal.

— Hon. 8. M. Weaver, Judge. . Action in equity to redeem certain land from a tax sale and deed. There was a decree dismissing plaintiffs7 petition, and they appeal.

— Hon. J. H. Preston, Judge. Action to recover for a personal injury received by the plaintiff while engaged as a brakeman on the defendant’s road. There was a judgment upon the verdict for the plaintiff, and the defendant appeals.

— Hon. J. L. Husted, Judge. Action at law to recover upon a life insurance certificate issued to Lewis E. Rice. There was a trial by jury, and upon the close of the introduction of the evidence the court, on the motion of the plaintiff, directed a verdict against the defendant for the amount named in the certificate. Defendant appeals.

— Hon.P.B. Wolee* Judge. Suit by creditors’ bill to set aside certain conveyances of real and personal property, alleged to be in fraud of creditors. Decree dismissing plaintiff’s petition, and he appeals.

— Hon. W. F. Conrad, Judge. Action in equity to recover amounts alleged to be due on assessment certificates issued for paving, and to establish liens therefor. There was a hearing on the merits and a decree in favor of the plaintiff. The defendants appeal.

— Hon. D. Ryan, Judge. Action against the defendant for damages resulting from a failure to transmit-and deliver -a telegraph message. Jury trial. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. W. I. Babb, Judge. The defendant was indicted, tried, and convicted for murder in the second degree, and he appeals.

<p>Appeal from Shelby District Court. — Hon. Walter I. Smith, Judge.</p> <p>Indictment for seduction. Verdict of guilty, and defendant appealed.</p>

— Hon.. George, H. Caer, Judge. The defendant was charged with the crime of unlawfully selling intoxicating liquors. The court directed a verdict for defendant, and the state appeals.

— Hon. Soott M. Ladd, Judge. Defendants were indicted, convicted, and sentenced for the crime of setting fire to combustible matter in a building with intent to burn said building. They appeal.

— Hon D. Ryan, Judge. This is an action in equity for an injunction to restrain the defendants from keeping and maintaining a saloon in the city of Oskaloosa. The cause was submitted in the district court on an agreed statement of facts. A temporary injunction was allowed by the court, and defendants appeal.

— Hon. D. Evan, Judge. Suit in equity to enjoin a liquor nuisance. The district court sustained a demurrer to the plaintiff’s petition, and it appeals.

— Hon. John C. Sherwin, Judge. Defendant was indicted for the crime of rape. Upon trial to a jury he was convicted of an assault with intent to commit rape, and sentenced to the penitentiary for the term of eighteen months, and he appeals.

<p>1 Criminal Practice. A statement that the record does not show any evidence denying intercourse, promise of marriage, or seduction, is not such a reference to defendant’s failure to testify as will grant a new trial under Code, 3636, as amended.</p>

— Hon. N. B. Hyatt, Judge. The defendant was convicted of the crime of murder in the first degree, and was adjudged-to be imprisoned in the penitentiary at Ft. Madison, at hard labor, for the term of his natural life. From that judgment he appeals.

<p>2 Criminal Practice. A conviction will not be reversed because the wrong person signed the indictment.</p> <p>3 Same. Orie appointed to act as special county attorney may appear before the grand jury as the regular county attorney could.</p> <p>1 Resignation of county attorney should be made to the board of supervisors, though that of district attorney was required to be made to the governor.</p>

— Hon. John R. Caldwell, Judge. Appellant states Ms cause of. action as follows.“That on or about the seventeenth day of November, 1892, while he was engaged in his said vocation (as a printer) the defendants injured and dangerously wounded him by the unlawful, negligent, and reckless handling and discharge of a dangerous weapon, to wit, a gun, and from such injury and wound he suffered great pain of body and mind.” He asks to recover, damages in the several particulars…

— Hon. P. W. Burr, Judge. Proceeding by certiorari to test the legality of the action of the board of supervisors of Hancock county, Iowa, in establishing a drainage district. Judgment against plaintiff, and he appeals.

— Hon. C. P. Holmes, ' Judge. The defendant was indicted, tried, and convicted for the crime of seduction, and he appeals.

— Hon. C. P. Holmes, Judge. J. C. Anderson made to plaintiff his two promissory notes, due at different dates and for different amounts, secured by mortgage on real estate. J. C. Anderson deceased, and the defendants are his widow and children, heirs at law. It does not appear that administration has been granted upon the estate. This action is in equity to foreclose the mortgage, and no personal judgment is asked.

— Hon. D. R. Hindman, Judge. Plaintiee claimed three hundred and fifty dollars’ damages in a proceeding on the petition of the defendant and others to vacate a certain highway. The appraisers allowed him twenty-five dollars, and the.board of supervisors increased the allowance to sixty dollars. Plaintiff served notice of appeal to the district court upon the four persons whose names first appear on the petition, including the defendant, but not upon, the county auditor.

Appeals from Allamakee District Court. — Hon. L. O. Hatch, Judge. Actions to recover certain legacies, and to' establish liens therefor against certain real estate. Decrees for plaintiffs. Defendants appeal.

— Hon. N. W. Maoy, Judge. These cases, being identical in their facts except in one particular, are ■ submitted together. Plaintiff brought these actions to recover upon two separate injunction bonds executed by the defendant Gray as principal, with the defendant Underwood as his surety on one and the defendant Hattenhaur as his surety on the other.

— Hon. D. Ryan, Judge. The defendant was indicted for breaking and entering a store building in which goods, wares, and merchandise were kept for sale, use, and deposit, with the felonious intent to commit the crime of larceny. There was a trial by jury, and a verdict of guilty, and judgment on the verdict. Defendant appeals.

— Hon. F. R. G-aynor, Judge. Suit in equity to establish the trust character of certain funds in the hands of the defendants, and to recover from them the amount of a draft drawn by one H. E. Brandt upon defendants, which it is claimed they agreed to pay. Judgment for plaintiff, and defendant appeals.

— Hon. G-eorge W. Wakefield, Judge. Action at law to recover for the conversion of some corn alleged to belong to plaintiffs. Trial to a jury. Verdict and judgment for plaintiffs, and defendant appeals.

— Hon. D. Ryan, Judge. The defendant was accused by indictment of the crime of murder in the first degree, was tried by. jury, found guilty of the crime of murder in the second degree, and was adjudged to be imprisoned in the penitentiary at Ft. Madison at hard labor for the term of twenty years. From that judgment he appeals.—

— Hon. S. H. Fairall, Judge. The defendant was convicted of the crime of setting fire to certain material, with intent to cause a building to be burned, and adjudged to be imprisoned at hard labor for the period of four years. From that judgment he appeals.

<p>1 2 3 4 5 6 7 10 8 9 Contract: Consideration. For his own good, the holder of a second mortgage agreed with the holder of the third to keep the interest on the first mortgage paid, if the holder of the third mortgage would, for a fixed time, forbear a foreclosure to which he was then entitled. The second mortgage holder, instead, took an assignment of interest coupons attached to said first mortgage. Before the maturity of the coupons the second mortgage was foreclosed and the holder of the third was a party. The first was also foreclosed and redeemed by the holder of the third without knowledge that the holder of the second was asserting said coupons against him. Held, the agreement was on sufficient consideration. The foreclosure, before maturity of the coupons, does not estop the holder of the third mortgage from resisting the collection of said coupons.</p>

<p>1 Riparian Rights. Where a lake is drained in one year by a diteh and the cutting in of a river, an owner of land to the shore line acquires no title to the lake bed, by accretion or reliction.</p> <p>2 Same. Title to land on a lake or pond, not navigable, does not extend beyond the natural shore.</p>

— Hon. W. A. Spurrier, Judge. Action of mandamus for an order commanding the defendant, as auditor of state, to issue his warrants upon the state treasury for the payment of a certain claim audited and certified by the executive council. An order was granted as prayed, and defendant appeals .

— Hon. E. L. Burton, Judge. Action at law to recover the sum of eight hundred dollars on an alleged oral contract for the insurance of a barn which was destroyed by fire on the twenty-first day of July, 1892. The defendant denied that there was any contract of insurance. There was a trial before the court without a jury, and a judgment was rendered for the defendant for costs. Plaintiff appeals.

<p>Appeal from Fremont District Court. — Hon. Walter I. Smith, Judge.</p> <p>Action to recover double damages for the killing of colts and hogs belonging to the plaintiff by the operation of defendant’s trains, because of a neglect of defendant to maintain a proper or sufficient fence. Defendant, in a count of its answer, pleaded that it purchased the right of way across the land of plaintiff’s predecessor, and that by the terms of the conveyance the grantor was to make a five-board fence along both sides of the right of way, of material to be furnished by defendant company; that the defendant did furnish the material, and that “any fault or negligence in the construction of the said fence along the said right of way was wholly the act of the plaintiff, and if the same was in any manner defective in its construction it was through the negligence of the plaintiff.” To the answer was attached, as an exhibit, the conveyance of the right of way, containing the agreement to make the fences. To the answer pleading such defense there was a demurrer, which the court sustained, and upon a trial of issues formed there was a judgment for plaintiff, from which the defendant appealed.</p>

— Hon. Scott M. Ladd, Judge. Action to recover the balance of the purchase price of a stock of goods. Trial to the court, judgment for the plaintiff, and defendants appeal.

<p>Appeal from Polk District Court. — Hon. W. F. Conrad, Judge.</p> <p>Action to foreclose a chattel mortgage executed by the defendant Yeomans to the plaintiff Taylor, and to establish a landlord’s lien on certain chattels in favor of plaintiffs under a lease from Taylor to Yeomans. Defendant Gilbert answered, setting up a prior recorded chattel mortgage on part of the property, and claiming priority thereunder over plaintiff’s mortgage and landlord’s lien. The pleadings and exhibits thereto are quite voluminous, but, as the principal contention is whether the description of the property in the recorded mortgage to defendant Gilbert is sufficient • to charge subsequent purchasers and incumbrancers with notice, the pleadings need not be more fully stated. Decree was entered in favor of the plaintiff, and dismissing defendant Gilbert’s cross bill, wherein he asked a foreclosure of his mortgage. Defendant Gilbert appeals.—</p>

<p>Appeal from Wapello District Court. — Hon. E. L. Bubton, Judge.</p> <p>Action on a policy of life insurance. Judgment for plaintiff, and the defendant appealed.</p>

<p>1 2 Change of Homestead. Where the first homestead was in a tract of one hundred and seventy acres, which tract, with a creamery upon it, was worth six thousand dollars, a finding that the homestead forty acres therein equaled nine hundred dollars, the value of ’.the second homestead will not be disturbed; and it is not essential that money received for the forty, alone, was actually invested in the new homestead.</p> <p>3 Same: wipe’s debt. That the second homestead is taken in the wife’s name, does not render it liable to debts made by her before she acquired it.</p>

<p>Appeal from Pottawattamie District Court. — Hon. A. B. Thornell, Judge.</p> <p>This is an action at law brought by the plaintiff against the defendant, who is sheriff of Pottawattamie county, to recover damages for the alleged conversion of a certain stock of merchandise, consisting of tobacco, cigars, pipes, etc., owned by one C. M. Oberholtzer, and by him mortgaged to the plaintiff to secure a note, in the sum of seven thousand, nine hundred and twenty-seven dollars, made by the said O. M. Oberholtzer to the plaintiff. The defense was that defendant took possession of the said stock of goods under and by virtue of an attachment issued in a certain case wherein M. Kin-ports was plaintiff, and C. M. Oberholtzer was defendant, and that he afterward sold the same, and applied the amount received upon the judgment that Kinports recovered in his suit; that plaintiff’s mortgage was wholly without consideration, and executed with intent to hinder, delay, and defraud the creditors of C. M. Oberholtzer; that plaintiff was at all times the owner in fact of the stock of merchandise, and that O. M. Oberholtzer had no interest therein; that, while the business was carried on in the name of O. M. Oberholtzer, yet the obligations created by him were in fact the obligations of plaintiff, and the mortgage was made as a scheme or trick to enable plaintiff to defraud his creditors; that O. M. Oberholtzer was in no way indebted to plaintiff, for that the business wholly belonged to plaintiff. The reply was a denial of the allegations of the answer, and a plea of estoppel. On the issues thus joined there was a trial to, a jury, which returned a verdict for plaintiff, on which judgment was rendered, and defendant appeals.</p>

Appeals from Cass District Court. — Hon. N. W. Maoy, Judge. The first of these actions is a suit in equity to establish a trust in certain funds in the hands of the defendants and appellees, arising from the sale of a farm in Cass county, Iowa, by defendant Priest. The second is a law action, aided by attachment, to recover for an alleged conversion of certain moneys belonging to the estate of Elizabeth V. Priest, deceased.

<p>Appeal from, Crawford District Court. — Hon. G-. W. Paine, Judge.</p> <p>Action at law to recover damages for the destruction of a wagon belonging to plaintiff, and for personal injuries inflicted upon him through the alleged negligence of the defendant. Trial to a jury, verdict and judgment for defendant, and plaintiff appeals.—</p>

<p>2 3 Partnership: interest as expense. A firm agreed to furnish, a buyer money with whieh to buy stock, without stating that it had the money or how it would be obtained. As compensation, said buyer was to have a share in the profit of the venture, realized by one member of the firm. The money was obtained by borrowing on interest. H.'eld, the interest paid is to be treated as expense in determining the buyer’s compensation.</p> <p>1 Pleading and practice. Where defendant, in an accounting between partners, simply denies plaintiff’s claim that a profit was made, and the evidence shows a loss instead of a profit, defendant can not recover half of such loss from plaintiff.</p>

<p>Appeal from O’Brien District Court. — Hon. George W. Wakefield, Judge.</p> <p>Action in equity to have set aside an entry of judgment against the plaintiff, and a sheriff’s sale and conveyance of real estate made by virtue of the judgment, and for general equitable relief. The defendants resist the granting of the relief demanded, and ask that certain amendments to the petition and attachment bond filed in the action in which the judgment in question was rendered be permitted, and for general equitable relief. There was a hearing on the merits, and a decree in favor of the plaintiff, from which the defendants appeal.</p>

<p>5 Defective County Bridge. It is proper to charge that a county board should appoint one competent to inspect bridges, if its members lacked the requisite skill.</p> <p>1 Notice. Evidence that a member of the board had notice of defects in a bridge, prior to a meeting held before an accident on such bridge, is admissible.</p> <p>3 Incompetent testimony. It calls for a conclusion to ask a member whether notice of defects in a bridge was brought to the board.</p> <p>2 Expert Testimony. A bridge builder may testify in regard to the effect of decaying timber, the ordinary life of timbers used in the bridge involved, and the use of various parts of the bridge and the consequence of defects in them.</p> <p>6 Verdict for one thousand dollars not excessive in a case of permanent injury, by laming, where plaintiff’s j aw is injured, his hearing impaired, his teeth broken, and pain suffered by him.</p> <p>4 Practice. Instruction may treat a matter as in issue where the parties so treat it, though the evidence upon it is very slight.</p>

<p>Appeal from Polk District Coivrt. — Hon. S. F. Balliet, Judge.</p> <p>Action at law to. recover the amount alleged to be due on a subscription to the Cottage Hospital at Des Moines. There was a trial by jury, and, at the close of the introduction of the evidence, the court, on motion of the plaintiff, directed the jury to return a verdict for the amount claimed in the petition. From a judgment on the verdict the defendant appeals.—</p>

<p>Appeal from Pottawattamie District Court. — Hon. H. E. Deemer, Judge.</p> <p>Action on an accident insurance policy. Verdict and judgment for plaintiff, and defendant appeals.—</p>

— Hon. A. Van Wagenen, Judge. The plaintiff is acting as a corporation. This is an action at law to recover a balance claimed to be due from the defendant upon a subscription of ten thousand dollars to the capital stock of the said corporation. There was a trial before the court without a jury, and a judgment was rendered for the plaintiff. Defendant appeals.

— Hon. J. H. Preston, Judge. Action at law to set aside the will of James Johnson, deceased. The case was tried to a jury that returned a verdict for plaintiff, which verdict the court, on motion, set aside, and awarded a new trial, and ' from the ruling the plaintiff appealed.

— Hon. Soott M. Ladd, Judge. The above entitled actions were brought to enjoin the collection of certain judgments in Lyon county, Iowa, and for a decree canceling the same of record. By a stipulation the two causes were consolidated and tried in the district court as cause number 958. In each of the cases W. F. Stilwell et al., intervened, and the district court dismissed the petitions of the plaintiffs and interveners, and they each appealed.

— Hon. E. L. Bueton, Judge. Plaintiff brings this action in equity to cancel a contract in writing entered into between the plaintiff and W. E. Chambers, now deceased, for the exchange of certain pieces of real property, on the ground of nonperformance and inability to perform said contract on the part of deceased and his executrix.

— Hon. C. D. G-old-smith, Judge. Action at law to recover an amount alleged to be due the plaintiff for services rendered the defendant in purchasing' and selling land. There was a trial by jury, and a verdict for the defendant. The plaintiff appeals.

— Hon. J. H. ■ Preston, Judge. This is an action at law to recover damages from defendant, who is a physician, for alleged malpractice in setting and caring for a fractured limb. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— Hon. C. P. Holmes, Judge. Action at law to recover of the county certain fees said to have been earned by plaintiff’s assignors as justice and constable and watchman of certain property taken under a search warrant. Prom a judgment for defendant, plaintiff appeals.

<p>Appeal from Linn District Court. — Hon. J. H. Preston, Judge.</p> <p>Action at law to recover damages for malicious, prosecution. Trial to a jury, verdict and judgment for plainti.fi:, and defendant appeals.</p>

<p>Appeal from Linn District Court. — Hon. J. H. Preston, Judge.</p> <p>Action for damages for a personal injury. Verdiet and judgment for defendant. Plaintiff appeals,—</p>

— Hor. C. D. Goldsmith, Judge. Action to recover the rental value of a farm, and for damages. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. W. D. Tisdale, Judge. Application for an allowance of temporary alimony. Allowance of one hundred and. ten dollars ordered paid plaintiff. Defendant appeals.

<p>1 2 Res Judicata. A nonresident who assigns a right of action upon a bond simply in order that such action may be prosecuted is bound by the result of a suit brought upon the bond by the assignee.</p> <p>3 Practice. Where evidence warrants a directed verdict, error in ordering trial to be to the court, is without prejudice.</p> <p>4 Same. Where matters in bar and in abatement are pleaded, a judgment which does not state upon which plea is founded, is presumed to be based upon the matter in bar. Code, 2851.</p> <p>5 Same: on appeal. An appeal is taken from a judgment, later, from another that such judgment sustains a plea of res judicata. Held, on the second appeal, no facts involved in the first will be taken judicial notice of.</p>

<p>Appeal from Pottawattamie District Court. — Hon. Walter I. Smith, Judge.</p>

<p>Appeal from Black Hawk District Court. — Hon. J. L. Hosted, Judge.</p> <p>This is a controversy between W. W. Miller and William Dorris as to which one of them shall be appointed executor of the estate of John E. Miller, deceased. Miller was first appointed. His appointment was afterward set aside, and Dorris was appointed. Dorris did not qualify within ten days after his appointment, and the court, on application of Miller, again appointed him to the position. Dorris appeals.</p>

<p>Appeal from Polk District Court. — Hon. S. F. Balliet, Judge.</p> <p>Action to recover double damages for killing one horse and injuring two others. Verdict and judgment for plaintiffs. Defendant appeals.</p> <p>The petition charges that on July 19, 1892, three horses belonging to plaintiffs, which were running at large in their pasture, went upon defendant’s right of way by reason of a defective fence, at a place where defendant had the right to fence its track, and were while there so frightened by defendant’s cars and engines that they ran into a bridge, or culvert, and were injured; that one of the horses was so seriously injured that it was killed by defendant’s employees, and the others were permanently injured. Other allegations are made as to the value of the horses, the amount of damage, the sums expended in and about caring for their injuries, and the service of the affidavit and notice as a basis for the claim of double damages. The defendant admits that the horses got upon the track, and became frightened by a train of cars, and that they ran into a bridge, and were injured. It also admits the service of the affidavit and notice. All other allegations of the petition are denied. The cause was tried to a jury, which returned a verdict for plaintiffs, upon which judgment was entered.</p>

<p>Use op private lane held not to have made highway so as to excuse railroad from fencing.</p> <p>Abstract questions will not sustain appeal on certificate.</p>

<p>Appeal from, Scott District Cowt. — Hon. P. B. Wolfe, Judge.</p> <p>This is an appeal from an order granting a new trial in an action for the alleged wrongful conversion of a stock of boots and shoes. There was a trial by jury, and a verdict for plaintiff, which was set aside, and a new trial ordered. Plaintiff appeals.</p>

<p>Appeal from Lyon District Court. — Hon. Frank B. Gaynor, Judge.</p> <p>This is an action at law to recover the contract price of two Boss weighers and loaders sold by the plaintiff to the defendants. There was a trial by jury, and a verdict and judgment for the defendants. Plaintiff appeals.</p>

<p>Appeal from Boone District Court. — Hon. N. B. Hyatt, Judge.</p> <p>Proceeding, under the statute to condemn certain liquors known as "Jackson’s Health Beer” as intoxicating liquors kept for unlawful sale. On the trial in the district court on appeal the jury found specially that said liquors were kept for sale in the county at the time they were seized; that they contained alcohol, and were intoxicating liquors, as defined in the instructions. Defendant’s motion for a new trial was overruled, and judgment entered condemning said liquors, and ordering their destruction; also adjudging that defendant Fairgraves pay costs. Defendant Fairgraves appeals.</p>

— Hon. J. C. Sherwin, Judge. This action was commenced in justice’s court to recover one hundred dollars damages for hay destroyed by setting out fire. Defendant appeared, and moved for a continuance, which being overruled, he moved that the ease be certified to the district court, which also being overruled, he withdrew from the court, and offered no testimony or argument in defense.

— Hon. D. Ryan, Judge. Dependant was indicted, tried, and convicted of the crime of perjury, and sentenced to imprisonment in the penitentiary for the term of two years, and he appeals.

— Hon. John J. Ney, Judge. Defendant was charged by indictment with having willfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, killed and murdered one Patrick O’Donnell. Having pleaded not guilty, he was put upon trial, and a verdict returned finding him guilty of the crime of manslaughter.

— Hon. A. B. Thornell, Judge. Indictment for larceny from a building in the nighttime. Verdict of guilty, and the defendant appealed. Because of the financial inability of the defendant, who is confined in the penitentiary, this case is submitted on a typewritten copy of the record.

— Hon. C. P. Holmes, Judge Indictment for nuisance in the sale of intoxicating liquors. Verdict of guilty, and a judgment, from which the defendant appealed.

— Hon. W. F. Conrad, Judge. The defendant was convicted in police court of the crime of owning and keeping intoxicating liquors in this state with intent to sell the same, in violation of law. He appealed to the district eourt, and was again convicted. From the judgment of that court he appeals.

— -Hon. George W. Wakefield, Judge. Action for the value of a box of merchandise. — From a verdict and judgment in favor of the plaintiffs, defendant appeals.

<p>Appeal from Calhotm District Court. — Hon. George W. Paine, Judge.</p> <p>Action upon a promissory note. Trial hy jury. Verdict and judgment for defendants. Plaintiff appeals.</p>