Volume 93 — Iowa Reports

John T. Stoneman, Judge. .Action to recover for personal injuries sustained by plaintiff, a minor, while in the employ of the defendant. When plaintiff had offered all his evidence, the court, on motion of the defendant, instructed the jury to return a verdict for the defendant. Plaintiff’s motion for a new trial was overruled, and judgment entered on the verdict. Plaintiff appeals.

<p>Insurance: construction op policy. One receives goods to be 1 paid for if sold, unsold goods to be returned. He obtains a policy in his own name insuring said goods, intending to insure to the full Value of the property. His title and said intention are 2 known to the insurer. Held, the fact that the policy limits recovery to an amount not exceeding “the interest of the insured” does not prevent plaintiffs recovering the full value of goods . destroyed, though his personal interest in such goods may be less than their value.</p>

— Hon. J. C. Mitohell, Judge. Suit in equity for the specific performance of a contract to convey real estate. Decree for plaintiff, and defendants appeal.'

Court. — Hon. Henry Rank, Jr., Judge. Suit in equity to enjoin a liquor nuisance. There was a decree dismissing the plaintiff’s petition at his costs, and both parties appeal..

— -Hon. W. I. Babb, Judge. .Proceedings to establish a claim against an estate. From an order establishing and allowing the claim, the administrator appeals.

— Hon. J. H. Preston, Judge. Action for breach of covenants in a warranty deed. There was a judgment for the defendant, from which plaintiff appeals.

— Hon. J. R. Caldwell, Judge. Action at law upon a negotiable promissory note. A demurrer to tbe petition was overruled, and, the defendant electing to stand upon his demurrer, judgment was rendered in favor of the plaintiff for the amount which appeared to be due on the nóte. The defendant appeals.

— Hon. Walter1 I. Smith, Judge. This is a suit in equity by which the plaintiffs seek to subject certain real estate to the payment, of two judgments rendered in favor of J. H. Russell, deceased, against the defendant, David Gray. It is claimed in behalf of plaintiffs that said real estate was conveyed to the defendants U. H. White and Jane White in fraud of the rights of the said Russell and other creditors of Gray.

— Hon. J. H. Preston, Judge. This suit involves the title to a school house site, of which each of the parties claims to be the owner. There was a decree for the plaintiff, and defendant appeals.

— Hon. W. I. Babb, Judge. Action to recover damages for a personal injury. Verdict and judgment for defendant. Plaintiff appeals.

— How. James D. Smythe, Judge. Action for rent, aided by a landlord’s attachment.

— Hon. E. L. Burton, Judge. The plaintiff is administratrix of the estate of Charles Fosburg, deceased: The defendant is a corporation, and is the owner of an extensive coal mine in Wapello-county. The deceased was a coal miner, and was killed in the defendant’s mine by tlie falling of slate from the roof of one of the entries in the mine.

<p>Appeal from Polk District Cotirt. — Hon. S. F. Balliet, Judge.</p> <p>Proceeding for the construction of a will. Decree for plaintiffs, and defendants appeal.</p>

— Host. J. M. Casey, Judge. Action to recover damages for a personal injury.

— Hon. J. H. Hen-DERSON, Judge. Action for damages resulting from a personal injury. Verdict and judgment for plaintiff. Defendant appeals.

— IioN. E. L. Bur-tow, Judge. Action in equity to set aside the probate of two paragraphs of the will of P. G. Ballingall, deceased, and to have them decreed to be void and of no effect. The relief demanded was granted in part, and the executors of the will, the defendant the Ottumwa Library Association, and fehe plaintiffs appeal, the appeal of the executors and the library association haying been first taken.

— Hon. Stephen F Balliet, Judge. Action a.t law for the recovery of damages alleged to' have been sustained by reason of a breach of contract on the part of the defendant. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiff appeals.

— HoN. W. F. Be ANNAN, Judge. Action at law to recover for tbe use of a horse. The defendant demurred to' the petition, and thé demurrer was overruled, and defendant refusing to plead further, the court rendered judgment against defendant, and he appeals.

A. W. Wilkinson, Judge. This is an action in equity by which the plaintiff seeks to enjoin the collection of certain taxes. The defendant Hoffman was treasurer of the county at the time of the commencement of the suit There was a hearing on the merits, and a decree was entered for the plaintiff. Defendants appeal.

— Hoít. W. S. Lewis, Judge. Indictment for an assault with an intent to commit rape. Verdict of guilty, and a judgment, from which the defendant appealed.

— Hoist. J. H. Apple-g-ate, Judge. This is an action to recover damages for the breach of an alleged marriage contract. Trial by jury. Verdict and judgment for the plaintiff. Defendant appeals.

— How. A. R. Dewey, Judge. Action in equity to compel the payment of a judgment. Trial to the court, and decree for plaintiff. Defendant appeals. It appears that one Dudley was a receiver of a railroad, under the appointment of the United States Circuit Court in Iowa, in a case pending therein wherein the Central Trust Company was plaintiff and the Iowa Central Kailway Company was defendant.

— Hon. S. F. Balliet, Judge. The action against James Pierce is to recover damages for writing and publishing a certain letter alleged to be libelous, and the action against the defendant Young is for publishing the same in a newspaper. Demurrers were filed to each petition on the ground that the matter set out as published is not libelous.

— Hon. John L. Stevens, Judge. Action at law on ai promissory note. The defendant, in answer, pleaded: First, that he never signed the note in suit as suc*h; second, fraud in the inception of the note; third, want of consideration. The case was tried to a jury, which returned a verdict for defendant, on which judgment was rendered, and plaintiff appeals.

— HoN. L. 0. Hatch, Judge. Suit in equity to foreclose a mortgage. Defendants, other than the administrator, Platt, answered, averring that the notes in suit were not due; that plaintiff had done nothing to declare any option he might have of declaring them due; and averred a tender of the interest) due before the commencement of the suit.

— Hon. A. Van Wagenen, Judge. Action to recover an amount alleged to be due on a promissory note. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiffs appeal.

- — Hon. GS-. W. Paine, Judge. Action at law to recover damages for failure to deliver one thousand one hundred and fifty bushels of oats according to contract. Trial to a jury. Verdict and judgment for plaintiff, and defendants appeal.—

— Hon. C. D. Goldsmith; Judge. On the seventh day of November, 1892, the Bank of Kirkman drew its draft on the First National Bank of Carroll, Iowa, with the defendant as payee, for the sum of three hundred and fifty dollars. The defendant sold the draft to the plaintiff bank, and transferred it by bis indorsement in blank, on tbe eighth day of November, 1892. On the same day the plaintiff sent the draft for collection to its correspondent, the Valley Bank of.

<p>Appeal from Blackhawk District Court. — Hon. D. J. Lenahan, Judge.</p>

— Hon. John J. Net, Judge. Proceeding in probate against Sarah Malyin, as administratrix of the estate of Samuel Malyin, deceased, for a judgment against her for the value of the share of- his estate belonging to said contestant, which has been wasted.

— Hon. J. L. Husted, Judge. This action is brought to recover upon a certificate of insurance issued by the defendant to Edward Rowell for two thousand dollars, payable athis death to his wife, Margaret Rowell. Margaret Rowell, claiming that her said husband was dead, served proofs of death upon the defendant on July 20, 1889, and demanded payment of said certificate, which was refused.

— Hon. P. B. Wolee, Judge. This is an action at law to recover tbe value of three pianos, which it is alleged were the property of the plaintiff. The defendants answered the petition, and afterward filed an amendment to the answer, which set up an additional defense. The plaintiff demurred to the amendment to the answer. The demurrer was overruled, and judgment was rendered for defendants. Plaintiff appeals.

— HoN. J. E. P. McG-ee, Judge. Action at law upon 'an accepted bill of exchange. Defense, want of consideration, fraud in the inception of the bill, and alteration thereof after delivery. The case was tried to the court without .a jury, and judgment rendered for defendant. Plaintiff appeals.—

— Hon. John J. Net, Judge. This is an action to recover the sum of three hundred and seventy-eight dollars, for which it is alleged the defendant is liable to the plaintiff by reason of the wrongful, and negligent act of the defendant in not appropriating said money to the payment of a promissory note upon which plaintiff was liable as surety. There was a trial by jury, and a verdict and judgment for the defendant. Plaintiff appeals.

— Hon. A. R. Dewet, Judge. Suit in equity to quiet plaintiff’s title to certain real estate in Poweshiek county. The parties each claim to he the owner of the land through certain contracts and conveyances from one W. S. Decker. From a decree dismissing the plaintiff’s petition, and defendant W. S. Decker’s cross petition, the plaintiff and the cross petitioner appeal.

— Hon. J. L. Stevens, Judge. This is a suit in equity to set aside a written satisfaction and settlement of a judgment, and to award execution- on tbe judgment There was a decree for the defendants, and plaintiff appeals.—

— Hon. C. M. Waterman, Judge. The defendants are the Davenport, Iowa & Dakota Railroad Company and the Farmers’ Loan Sc Trust Company of New York. Williams & Flynn were contractors with the defendant railroad company for the construction of its line of road from Davenport some thirty miles to the crossing of the C. N. W. Railway Company. E. Fitzpatrick was a sub-contractor with Williams & Flynn, and the plaintiff firm was a subcontractor under Fitzpatrick.

— How. ..Walter I Smith, Judge. Action to recover upon a policy of insurance against loss by fire. Plaintiff alleges that the merchandise and fixtures insured were destroyed by fire on or about the first day of July,' 1889. Defendant answered, admitting the policy, that the fire damaged some of the insured property, and denying that the fire occurred on the first day of July, 1889.

.Appeal from Clinton District Court. — Hon. P. B. Wolee, Judge. Action in equity to restrain the defendant from' removing the body of one Philip Deeds, and to quiet plaintiff’s title to a burial lot Philip Deeds was first married in 1837, and lived with his wife until her death, in 1862. At her death, and by the consent of all parties, she was interred in the lot now claimed to be owned-by plaintiff, and which is in the cemetery at Lyons, Iowa,.

Apjpecd from Van Burén District Court. — Hon. E. L. Burton, Judge. This is a proceeding in probate to establish against the estate of Moses Stout, deceased, a claim based on an account and on a promissory note. The claim was allowed as to the account, but was disallowed as to the note. The plaintiff appeals.

— Hon.E. L. Burton, Judge. Action for personal injuries on defendant’s road. There was a verdict and judgment for the defendant, and the plaintiff appealed.

<p>Buyer of Mortgaged Chattels. Where the giver of a recorded mortgage, in. possession, is allowed to sell in the usual course of trade, the mortgagor cannot recover a portion of the goods sold on credit, in good faith, nor recover for their value.</p>

— Hon. J. C. Sher-wiN, Judge. Action at law to recover damages by reason of a personal injury alleged to biave been caused by defendant’s dog. There was a demurrer to the petition, which was sustained. Plaintiff elected to stand upon his petition, and judgment was rendered against him for costs, and he appeals.

— Hon. -D. R. Hindman, Judge. Action at law to recover damages for injuries sustained by Earl Thomas, a minor son of the plaintiff, through the alleged negligence of the defendant company. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

— Hon,_J. C. Sher-wir, Judge. Action in, equity to subject real estate to the payment of two judgments. There was a hearing on the merits, and a decree in favor of the plaintiff. The defendant Thomas McCook appeals.

— Hon. A. W. Wilkinson, Judge. Action in equity to enjoin defendants from collecting and: appropriating a certain tax to th'e establishment of a highway. Defendants- demurred upon the ground that the facts stated ini the petition do not entitle the plaintiffs to the relief prayed for. The demurrer was sustained, amid, plaintiffs electing to stand on their petition, judgment was entered dismissing the same, from which they appeal.

— Hon. H. M. Towner, Judge. The first of tbe above-entitled actions is a proceeding in probate, by which Mary A. Mohler demands that her dower or distributive share be set off to her, as the widow of Anthony Shank, deceased. The other case is a 'Suit in equity by the heirs of Anthony Shank, and against Mary A. Mohler and others, to quiet the title of said heir$ against any claims of Mary A. Mohler in the estate of said Shank. Both of said actions were tried by the court.

— -Hon. W. H. Ted-eord, Judge. Albert A. Maiken was a son of the plaintiff:, in the employ of the defendant company for some time prior and up to September 20,1891, when he was killed while engaged as brakeman on á freight train.

— How. J. H. HeN-DERSON, Judge. Action at law to recover commission for the sale of real estate. Trial to a jury. Yerdict and judgment for plaintiff, and defendant appeals.

— How. J. H. HeN-DEES0N, Judge. This is a suit in equity for the specific performance of an alleged contract for the sale of two hundred and forty acres of land. There was a decree for the defendant, and plaintiff appeals.

<p>Estate of Decedents: compensation of trustee. One who, under a will, acts in the dual capacity of trustee and executor should be paid for his services as trustee, as executors are paid under Code, 2494. In order to recover for extraordinary services as either executor or trustee, under Code 2495, it must appear that such were necessary, and that the statutory compensation under Code 2494, is not sufficient.</p> <p>Interest on funds. The charging an executor with interest on undistributed funds is a discretionary matter.</p>

- — Rem. D. Ryan, Judge. Action for fraudulent representations in the sale of land. Counterclaim and judgment for the defendant from which the plaintiff appealed.-

— Hon. P. B. Wolfe, Judge. Action in equity to set aside a conveyance of real estate, and to subject the property conveyed to the payment of a judgment owned by the plaintiff. There1 was a hearing on the merits, and a judgment in favor of the defendants for costs. The plaintiff appeals.

— How. N. W. Macy, Judge. Action at law to recover1 money paid by plaintiff to defendants for intoxicating liquors during the years 1881,1882,1883, and 1884. There- was a trial to a jury, and at the conclusion of plaintiff’s evidence, defendants moved the court for a verdict. The motion was sustained, and verdict and judgment rendered for defendants, and plaintiff appeals.

— Hoe. J. L. Husted, Judge. Action in equity to recover the amount due upon two promissory notes, and to foreclose a mortgage given to secure their payment. Demurrers to the petition were sustained, and the plaintiff refusing to plead further, judgment was rendered in favor of the defendants for costs. The plaintiff appeals.

N. B. Hyatt, Judge. Action upon a promissory note executed by defendant and E. L. Lemert, dated September 19, 1888, for one thousand six hundred dollars, payable one year after date, with ten per cent, interest, to plaintiff or order. Defendant answered, alleging that he signed said note as surety; that, when he signed it, there was no payee named therein; and that the name of plaintiff was afterwards inserted therein, without his knowledge or consent.

Appeal froyn Franklin District Court. — Hon. D. R. Hindman, Judge. Action upon a promissory note. So far as appears from this record, no defense -was made by tlhe defendant E. E. Leach. The defendant G-illetlt filed an answer, and there was trial by jury, 'which resulted in a verdict against the plaintiffs, and from a judgment on the verdict they appeal.

<p>Appeal from Calhoun District Court. — Hon. Charles D.-Goldsmith, Judge.</p> <p>Action in equity for specific performance. Decree for plaintiffs. Defendant appeals.</p>

<p>Appeal from Dubuque District Court. — Hon. J. L. Hosted, Judge.</p> <p>Proceedings in probate to establish, a claim for services against the estate of George Eidler, deceased. A jury was impaneled, and evidence for the plaintiff was submitted. At the close of her testimony, the court directed a verdict for defendant, on hi's motion, and rendered judgment against the plaintiff 'for costs. She appeals.</p>

<p>Appeal from Johnson District Court. — Hon. S. H. Fairall, Judge.</p> <p>Suit in equity to' establish and dissolve a partnership between plaintiff and defendant, and for an accounting. From a decree and judgment for plaintiff, defendant appeals. —</p>

<p>Justice of the Peace: Jurisdiction. A justice has no jurisdiction to 2 enter judgment against one who does not live in the township 3 where the action is brought and is not served in it, at the suit of a non-resident of Iowa.</p> <p>4 Same; damages. A justice is not liable in damages because he 6 enters up a judgment, void for want of jurisdiction, in good faith.</p> <p>Same. And a constable is protected in levying execution on such 6 judgment, unless the levy is willfully excessive -or oppressive.</p> <p>Practice on Appeal: amount in controversy. When malice is 1 charged and the prayer is for actual and punitive damages aggregating more than one hundred dollars, an appeal lies without certificate.</p>

<p>Statute of Limitations. An action grounded upon the fact that a deed 1 covenanted title, that there was a mortgage, that defendant knew this and concealed it, and that plaintiff was compelled to pay the 3 mortgage, may be brought within ten years after payment of the incumbrance, and is not founded on deceit..</p> <p>Action on Covenant. The grantee in a deed covenanting against 3 incumbrances may recover though he knew of the incumbrances before he took the deed.</p> <p>Practice on Appeal. That the judgment exceeds the amount prayed 4 in the petition, can not be first raised on appeal.</p>

<p>Appeal from Clarke District Court. — Hon. H. M. Townee., Judge.</p> <p>This action was commenced November 20, 1889, against C. W. Cowles, George H. Cowles, and others. C. W. Cowles alone was served and appeared. Before issue was joined, C. W. Cowles was adjudged insane by the court of Nebraska, and Ida C. West appointed guardian of liis person and property. On April 29,1890, in obedience to an order of the District Court of Clarke county, Iowa, said guardian appeared and answered. On May 19, 1890, plaintiff filed an amendment to Ms petition, alleging the death of George H. Cowles; that his estate was insolvent; and that C. W. Cowles had removed from the state; and asking an attachment against the , property of O. W. Cowles,, which was issued, and levied upon certain property. At the February term, 1891, the case was tried upon the issues joined as. an equity cause, and taken under advisement. On the twenty-eighth day of April, 1892, and before a decision had been rendered, the death of G. W. Cowles being suggested, George L. Moore, executor, was made a party, and answered, denying generally the allegations of the petition. On July 11, 1892, judgment was entered in favor of the plaintiff for thirteen thousand six hundred dollars, debt, and one hundred and seventy-six dollars, attorney’s fees and costs, with eight per cent, interest from date of judgment; and it was ordered that said executor pay said amount as a claim against said estate. The issues and facts sufficiently appear in the opinion. The defendant George L. Moore, executor, appeals.</p>

<p>Appeal from Louisa District Court. — Hon. A. E. Dewey, Judge.</p> <p>Action on promissory notes. Defense, a failure of consideration. Judgment for the defendant, and tbe plaintiff appealed.</p>

— Hon. J. L. Husted, Judge. Suit in equity to compel the defendant, a mutual life insurance company, to levy an assessment upon its members for the purpose of paying plaintiff the amount of a certificate, in which she is beneficiary upon the life of one Flora Garretson. There was a trial to the court, which resulted in an order directing the company to make the assessment, and defendant appeals.

— How. Charles D. Goldsmith, Judge. Action at law to recover the sum of one hundred and twenty dollars1, which the plaintiff alleges is due Mm from the defendant ais a real estate agent’s com-misgion for selling two hundred and forty acres of land. The defendant, by his answer1, denied that the plaintiff made a sale of said land', and' denied that he was indebted to plaintiff in any amount.

— Hon. Peed O’Donnell, Judge. Action playing for the construction or setting aside of a will. The District Court sustained a demurrer to the petition, from which order the plaintiffs appealed.

— Hon. C. M. Waterman, Judge. Plaintiff, a minor, prosecutes this action by Ms nest friend to recover of defendant, a corporation, damages for personal injuries sustained by plaintiff because of alleged negligence of one of defendant’s employes while, in the line of Ms employment. Defendant answers denying the alleged negligence. The- case was tried to a jury, and verdict and judgment for defendant. Plaintiff appeals.

<p>Appeal from Pottawattamie District Court. — Hon. H. E. Deemer, Judge.</p>

— HoN. N. B. .Hyatt, Judge. ■ Action at law to re coyer an amount alleged to be due from the defendant for hogs and cattle to- him sold. The action was aided by attachment, under which Lusch, Carton & Co., doing business under the name of the Bank of Ackley, were garnished. Their answers were taken, and showed that at the time of the garnishment they were owing Patten the sum of five hundred and eighty-seven dollars.

— How. F. B,. GtAYNOR, Judge. Action at law to recover damages for breach of contract, for alleged overcharges of freight, and for discriminating against plaintiff in freight rates. Defendant demurred to the petition, and, the demurrer being-sustained, plaintiff elected to stand upon his petition, and judgment was rendered against -him for costs, and he appeals.

Ajpjpectl from Keokuk District Court. — Hon. David Ryan, Judge. Action in equity for the interpretation of tbe will of Obarles L. Jordan, deceased, and to recover a portion of bis estate. There was a bearing on tbe merits, and a decree in favor of tbe defendants. Tbe plaintiff appeals.

— Hon. H. C. Traverse, Judge. Action upon a bill of exchange. Trial by jury. At the close of the introduction of the evidence, the court, on motion of the plaintiff, instructed the jury to return a verdict against the defendant. From a judgment on the verdict the defendant appeals.

— Hon. John J. Ney, Judge. Plaintiff brings this action in equity, under a contract sel .out, to enjoin the defendant from obstructing or cutting off the supply of gas to plaintiff’s residence and street lamps.

— Hon. A. Van Wagenen, Judge. Action in equity to restrain the defendant from practicing medicine in the town of Woodbine or vicinity. Decree for plaintiff. Defendant appeals.—

— Hon. N. B. Hyatt, Judge. Action for the recovery of specific personal property. Judgment for the defendant, and the plaintiff appealed.

— Hon. S. P. Balliet, Judge. Action to recover for a personal injury sustained by plaintiff by tire alleged negligent management and operation of a locomotive engine 'at the crossing’ of a street in the city of Des Moines. There was a trial by jury. At the close of the introduction of the evidence the defendant presented a motion for a direction to return a verdict for the defendant. The motion was sustained, and the verdict was returned according to the direction.

— Hon. F. R. Gaynor, Judge. Suit in equity to reach certain property in the possession of the Le Mars National Bank, W. H. Dent, and G. C. Maclag’an, and subject it to the payment of a judgment held by plaintiffs against defendants' Henrich & Tomlinson (Henry Henrich and F. M. Tomlinson). From a decree dismissing plaintiff’s petition, they •appeal.

Appeals from Hardin District Court. — Hon. S. M. Weayer, Judge. Actions in .equity to quiet the title of the plaintiffs to lots in thie town-of Ackley. The actions were heard together on the same evidence. There was a decree in each against the defendants, and they appeal.—

<p>Mutual Life Insurance: notice. Where the contract requires notice 1 to be mailed to the “last address as shown by the branch books,” there is no right to avoid the policy for nonpayment of assessment because a notice, duly stamped, was left on a desk from which the mail carrier habitually took letters so lying there, to 2 deposit in the mail, said notice being addressed not to the last address shown by the branch book but to the then actual address of the member.</p> <p>Djbemee, J., takes no part.</p>

— Hon. J. G. Mitchell, Judge. This action was originally brought by John Van Winkle to recover for personal injuries alleged! to have been sustained by him while in the employment of the defendant as' a brakeman, and while engaged in coupling an engine and “foreign” freight car, without fault on his part, and because of the defendant’s negligence, as follows: “The defendant was negligent in moving back upon him when caught; in not obeying his signal; in not stopping; in not…

<p>Appeal from Clayton District Court. — Hon. W. A. Hoyt, Judge.</p> <p>Action to recover money overpaid. Judgment for plaintiff, and the defendant -appeals'.</p>

<p>Appeal from Carroll District Court. — Hon. George W. Paine, Judge.</p> <p>Action on a subscription. Judgment for plaintiff, and the defendant appealed.</p>

— Hon. J. L. Husted, Judge. This is an action at law to recover damages for seizing' and destroying five barrels of beer alleged to be the property of the plaintiff. A jury was waived, and the canse was tried by the court, and a judgment was rendered for the plaintiff. Defendants1 appeal.—

<p>Contract: Material Alterations. Defendant signed a subscription 2 paper. Others signed a subscription paper for the same purpose. 2 Tne two papers were identical, except that the last had the words “the amount set opposite our names.” The signatures to the last were detached and appended to the first. Held, the quoted 4 words were surplussage. The two papers were one contract. There was no material alteration of the first paper.</p> <p>Subscription: revocation. It is no defense that a subscription was 5 rescinded by the signer after the acceptance but before anything was done or expended under it. Seale v. Bead, 52 Iowa, 308, and Lodge v. Farnham, 11 Pac. Rep., -592, distinguished.</p> <p>Same. Neither are false representations that a creamery would yield 6 a stated profit and that its stock would be of great value.</p> <p>Practice. Pleadings, instructions, verdict, and special findings, are 1 part of the record and need not be preserved by bill of exceptions.</p>

— Hon. WhA. Hoyt, Judge. Action in equity to enjoin the maintenance of ai nuisance caused by the beeping for sale, and selling, in a place specified, intoxicating liquors in violation of law, and to abate the nuisance. The defendants appeared and answered. A demurrer to the answer of the defendant George Higgins was sustained. There was a hearing on the merits, and a decree in favor of Ihe plaintiff. The defendants Mary Steyer and George Higgins appeal.

— HoN. A. B. Thornell, Judge. Action at law to recover for personal injuries sustained by tire plaintiff, and alleged to have been caused by the negligence of the defendant There was a trial by jury, and a verdict for the plaintiff. Motions in arrest of judgment, for judgment in favor of the defendant on the first count of the petition, and for a new trial were filed by the defendant and overruled, and it appeal s.-

<p>Estoppel. A Dakota bank can not take the benefits of having land 2 lying in Dakota sold for it, and urge that banks are prohibited by the laws of that state from dealing in land.</p> <p>Evidence authorizes verdict that deal was with the bank instead of 1 its individual owners.</p>

<p>Appeal from Polk District Court. — Hon. C. P. Holmes, Judge.</p> <p>Action to recover damages for the violation of a contract. Verdict and judgment for plaintiff. Defendant appeals.</p>

— Hon. W. D. Tisdale, Judge. Action under section 1289 of thie Code,, to recover double damage's for tine alleged killing of two horses, because of defects in defendant’s right of way fence. The case was tried to a jury, and a verdict returned in favor of thie plaintiff, on which judgment was entered, and from which defendant appeals.

— Hon. A. Yan Wagenen, Judge. S. H. Adam® was killed by being knocked down and run over by one of defend'amBs locomotive engines in its switch, yards at Sioux City. The plaintiff is Ms widow, iand administratrix of his estate. This action was brought to recover damages for causing the death of Adams. From a judgment upon the verdict of a¡ jury the defendant appeals.

— Hon. James D. Smyth, Judge. Action in equity to recover tlie amount of a promissory note, and to foreclose a mortgage on real estate given to secure its payment. There was a hearing on the merits, and a decree in favor of the plaintiff, as prayed. The defendants appeal.

— Hon. James D. Giefbn, Judge. On the twenty-fifth day of Aug'ust, 1892, there was filed in the office of the clerk of the District Court of Linn county, Iowa, for probate1, a paper purporting to be the last will and testament of Sampson C. Beyer, deceased. This paper bear® date February 18, 1886, and to it is attached what appears to be a codicil, of date July 27, 1891. These papers are each signed by the maker, and witnessed according to law.

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

— Hon. Soott M. LAnn, Judge. The defendant is the administrator of the estate of Fred B. Close, deceased. In the lifetime of dose hie was surety for the plaintiff, on an appeal bond, in am action appealed to this court. In that proceeding Close paid, as such surety, two hundred and twenty-six dollars and sixty-two cents.

— Hon. A. B. Thornell, Judge. Action in equity to recover the amount due on a promissory note, and to foreclose a mortgage given to secure its payment. There was a hearing on the merits, and a decree in favor of the defendants, Joseph C. and Lenora 0. Hardesty. The plaintiff appeals.—

— Hon. A. B. Thobnell, Judge. Action for damages by a husband for loss of services of his wife by reason of a personal injury. Verdict and judgment for defendant. Plaintiff appeals.

— Hon. Soott M. Ladd, Judge. This is a suit in equity to establish a mechanic’s lien. Thera was a demurrer to the answer, which was overruled. Plaintiff elected to stand on its demurrer, and there was a decree for the defendant. Plaintiff appeals.

— Hon. J. D. Q-ieeen, Judge. The plaintiffs are husband and wife, and the defendant is their son.

— Hon. A. B. Thornell, Judge. Action at law on an alleged guaranty of a draft. At the conclusion of the evidence for the plaintiff, the court sustained a motion to direct the jury to return a verdict for the defendant A verdict was returned as directed, and upon it a judgment in favor of the defendant for costs was rendered. The plaintiff appeals.—

— Hon. S. E. Balliet, Judge. The plaintiff is a judgment creditor of the defendant E. J. Cooper. An execution was issued on the judgment, and the Marquardt, Savings Bank was garnished as a supposed debtor of Cooper. Indebtedness was denied by the garnishee, and issue was taken upon the denial. There was a trial to the court without a jury, and from a judgment in favor of the garnishee for costs the plaintiff appeals.

<p>. Appeal from Cedar Rapids Superior Court. — Hon. John T. Stonehan, Judge.</p>

— Hoít. C. D. Goldsmith, Judge. Action at law to- recover a part of thie purchase price of reial estate alleged to have beeu wrongfully retained by the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. David Ryan, Judge. The defendant Elizia K. Woodman is the executrix of the estate of Mrs. M. M. Howe, deceased. On the first day of December, 1876, one John Q. Howard made to A. J. Kane his two promissory notes, aggregating-one thousand two hundred and thirty-nine dollars and two cents, and secured the same by mortgage on real estate in Keokuk county. Both of these notes matured, by their terms, January 4, 1878.

— Hon. C. P. Holmes, Judge. Action for judgment upon a paving certificate, and to reform and correct said certificate. Decree for plaintiff. Defendants appeal.

— Hon. J. H. Preston, Judge. Action at law to recover for money received- by virtue of judgments rendered against D. Weaver. A motion to strike and a demurrer to the petition were sustained. Tire plaintiff refused to plead further, and appeals.

— Hon. John H. Caldwell, Judge. Action at law to recover an amount alleged to have been found and agreed to be due on 'settlement of accounts. There was a trial by jury, and judgment for. the plaintiff. The defendant appeals.

— Host. A. Yan Wag-enen, Judge. Action in equity for an accounting, and to recover an amount alleged to be due tbe plaintiff. There was a hearing on the merits, and a decree in favor of the plaintiff. The defendants Jackson, Patterson & Co., Andrew M. Jackson, and J. O. Patterson appeal.—

— Hon. J. H. Preston, Judge. This is a proceeding to establish a claim against the estate of John Christman, deceased. There was a full hearing on the evidence, and the claim was not allowed. Plaintiffs appeal.

<p>Compensation of Sheriff. A sale under special execution is advertised. Before sale the judgment is paid and execution recalled. Held, no fee for “collecting judgment” should be allowed. Litch-field v. Ashford, 70 Iowa, 393, distinguished.</p>

<p>Delivery: Evidence. On one side, a witness said that decedent, shortly before his death, walked across a room and handed a son an envelope. The son recorded a deed. Decedent at one time intended to convey to the son. On the other, there is a preponderance that the father was too feeble to so act at the time; that the grantee, both before and after the death, acted as though the •decedent’s land was not his; and he witnessed an attempt to ■devise it to others, without asserting title. Held, a finding that there was no delivery will stand.</p>

— Hon. A. Van Wag-enen, Judge. Action at law to recover money alleged to.have been paid to tbe defendants for the benefit and use of the plaintiff. The defendants, by counterclaim^ seek to recover of the plaintiff compensation for effecting a sale of real estate owned by the plaintiff. There was a trial by jury, and a verdict and judgment for defendants. The plaintiffs appeal.

— Hon. H. E. Deemer, Judge. This is a controversy over the alleged homestead rights of Peter Beck and Amelia Beck, in a certain building and lot in the city of. Council Bluffs. There was a judgment or order establishing the alleged right in part of the property, and William Groneweg, assignee, appeals.

H. E. Deemer, Judge. The petition shows that the plaintiff is the executor of the will of Horace Everett, deceased; that Horace Everett owned the northwest quarter of section two, township seventy-four, range forty, west; that the defendant hoard established a “consent road” or public highway over and across said land, without the consent of said Horace Everett, upon the consent of other parties, as to.their lands, and that no damages were paid to said Everett.

<p>Defective Sidewalk: evidence. Finding that a loose plank caused 1 injury, that it was due to defective construction, and that the city was negligent, sustained. Cook v. Anamosa, 66 Iowa, 437, distinguished.</p> <p>Same: practice. Evidence that other planks in the same part of 3 the walk were loose, is admissible. Buggies v. Nevada, 68 Iowa, 185, distinguished.</p> <p>Instructions. One charged on the facts essential to recovery for being injured by a defective sidewalk, negligence in maintanance 3 and notice; another that plaintiff must prove injury caused by the defect. Held, it was proper to give both.</p>

Areals from O’Brien District Court. — Hon. F. R. Gaynoe, Judge. These are actions in equity to quiet in the plaintiffs the title to certain land in O’Brien county. The actions were heard by the District Court and determined together, and decrees were rendered in fayor of the defendants. The plaintiffs appeal.

<p>Practice: discretion. Where on a petition to set aside a default for “unavoidable casualty” under Code, 3154, the evidence conflicts, a refusal to grant a petition will not be disturbed without proof of abuse of discretion.</p>

<p>Appeal from Pottawattamie District Court. — Hon. A. B* Thobnell, Judge.</p> <p>Action to quiet title to five acres of land. Decree for plaintiff, and the defendant appealed.</p>

<p>Instruction: harmless error. If it be true that a gift of liquor tc an intoxicated person creates no liability in damages, a charge 1 making one liable for “furnishing” liquor, is not prejudicial where it is conclusively shown that the liquor was sold, and where other instructions make selling an essential.</p> <p>Exemplary Damages may be recovered under Code, 1557, if actual 2 damages caused by selling liquor are shown. Willfulness and 3 wanton disregard of the rights of others are not essential.</p> <p>Misconduct of Counsel. Counsel said that certain witnesses testified 4 as they did because they and defendants were Germans and old friends, and said, “the witnesses call itB. B., you and I know it was beer.” Held, it might well have been omitted, but it is not cause for reversal.</p>

— Hon. J. H. Preston, Judge. This is an action at law to'recover damages from defendant for negligently failing to deliver a telegram notifying plaintiff of the death of his mother, in the state of Ohio, whereby he was prevented from attending her funeral. There was a trial to a jury, verdict and judgment for plaintiff for the sum of one hundred dollars, and defendant appeals.

— Hon. S. M. Weaver, Judge. . Tbis action was commenced November 16, 1893, upon a judgment rendered November 8, 1871, in the Circuit Court of Allamakee county, in favor of deceased and against defendant Plaintiff alleges “that, since the rendition of said judgment, defendant has been a nonresident of Iowa for more than two years and one month; that the record of said judgment was never lost or destroyed, and no cause existed for bringing action on this judgment prior to…

— Hon. W. H. Tedeord, Judge. Action at law to recover money had and received by defendant. Trial to a' jury. Verdict and judgment for plaintiff, and defendant appeals.