Volume 94 — Iowa Reports

— Hon.W. A. Spurrier, Judge. Suit in equity to enjoin and abate an alleged liquor nuisance. Tlie cause was- tried to the court, and ai decree entered dismissing plaintiff’s petition* and it appeals.

— Hon. C. M. Waterman, Judge. Defendant was jointly indicted with her husband, Harvey Burgor, for 'the crime of setting fire to an inhabited building. Upon a trial to a jury she was convicted, and her husband acquitted. From a sentence of imprisonment in the penitentiary for nine months, she appeals.

— Hon. M. J. Wade, Judge. Defendant was indicted, tried, and convicted of the crime of larceny. From the imposition of a fine of ope hundred dollars he appeals.

<p>Appeal from Mahaska District Court. — Hon. A. R. Dewey, Judge.</p> <p>Action in equity to enjoin the continuance of an alleged liquor nuisance. Decree for plaintiff. Defendants appeal.</p>

— Hon. J. M. Casey, Judge. Action to recover damages for a personal injury réceived by the plaintiff by being struck and knocked down by a railroad car on one of the defendant’s tracks in its switch yards at Ft. Madison. There was a trial by jury. At the close of the introduction of the evidence the court, on the motion of the defendant, instructed the jury to return a verdict for diefendant, which wás done, and from a verdict on the judgment the plaintiff appeals.

— How. S. M. Weaver, Judge. Defendant was indicted and traed for the crime1 of “an assault with intent to maim and disfigure.” He was found “guilty of assault with intent to inflict great bodily injury,” and adjudged to- pay a fine of two hundred dollars and costs, and in default of the payment of said fine to stand committed for the term of sixty days. Defendant appeals.

— Hon. J. M. Casey, ' Judge. This is a proceeding in probate by which the plaintiff seeks to establish a claim against the estate of Sophia Herring, deceased. The First Methodist Episcopal .Church of Ft. Madison is the principal legatee under the will of the deceased, and it appeared to the proceeding, and resisted the claim of the plaintiff. ■ There was a trial by jury, which resulted in a verdict and judgment for the plaintiff. Defendant appeals.

— Hon.D. Ryan, 1 Judge. - ' • - The' defendant was indicted and convicted of the crime of “breaking and entering a building in which goods, merchandise, and valuable things were kept for use and deposited.” Judgment of imprisonment in the penitentiary for three years and for costs was entered against him from which he appeals.

<p>Appeal from Floyd District Court — Hon P. W. Burr, Judge. . ■</p> <p>Indictment for a liquor nuisance!Judgment 'of ■ conviction, and the defendant appeals.'</p>

— Hon. H. C. Traverse, Judge. Indictment and trial for a liquor nuisance. Verdict of guilty, and sentence pronounced thereon, from which the defendant appeals.

-^-Hon. W. D. Tisdale, Judge. The plaintiff firm is the publisher of the Chariton Herald, one of the official papers of Lucas county for the publication of its proceedings.

— Hon. D. Ryan, judge. Action upon a written contract, as follows: “This indenture, made and entered ini» this seventeenth day of January, 1891, witnesseth, that the said first party lease to second party the following described personal property, to-wit, — one saw rig, complete — from the first day of February, 1891, to the first day of February, 1892, inclusive. * * * And the said second party agrees to pay first party, as rent for the sarnie, eight dollars and…

— Hon. H. C. Traverse, Judge. Action at law to recover damages for diverting the natural flow of water from the land of the defendant on the land of the • plaintiff, and for entering on plaintiff’s land and maliciously destroying his trees, and removing earth from the land of the. plaintiff to the land of the defendant.

— Hon. John B. Caldwell, Judge. Defendant was accused by information, in seven counts, of selling intoxicating liquors contrary to law. Trial was had before a justice of the peace, and judgment rendered against defendant on certain of said counts, from which he appealed to the district court. The case was tried in the district court to a jury, and a verdict returned against the defendant on the first, second, and fourth of said counts. Judgment wais entered on the verdict.

<p>Appeal from Des Moines District Court. — Hon. J. M. Casey, Judge.</p> <p>Action to recover damages for an alleged nuisance. Trial to the court. Judgment for plaintiff. Defendant appeals.</p>

— Hon. J. IX Smythe, Judge. Action at law to recover insurance premiums collected by defendants for the St. Paul German Insurance Company. Trial to a jury. At the conclusion of the testimony the court directed a verdict for defendants', and plaintiff appeals.

— Hon. J. D. Smythe, Judge. On the ninth day of September, 1889, the1 plaintiff, by written contract, leased to defendant Dayton, and one George Heider two hundred and sixty acres of land in Des Moines county, Iowa, for the term of five years, from and after January 1, 1890, at the agreed yearly rental of eight hundred dollars; payment for the first year to be made in advance, and for each subsequent year at the end of the year.

— Hon. H. Bank, Jr., Judge. Action in equity to quiet in plaintiff the title of certain real estate. There was a hearing on the merits, and a decree for the plaintiff. Defendants appeal.—

— Hon. W. D. Tisdale, Judge. Action, at law to recover the amount due on an account. The action was commenced in justice’s cornet. A demurrer to the answer, which contained a counterclaim, was sustained, and' judgment was rendered against the defendant as prayed. The proceedings were reviewed in the district court by writ of error and approved. The defendants appeal.

— Hon. J. H. Apple-gate, Judge. Action at law to recover for injuries- alleged, to have been sustained by reason of negligence on the part of defendant. There wasi a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals-.

— -Hon. John J. Net, Judge. Action in equity to have declared void a special election held to determine whether a courthouse should be built, and to authorize the use of certain, funds in building it, and to enjoin the defendants and their successors in office from adopting measures to build a court house, and from using money of the county for that purpose. There was a hearing on the merits, and a decree for the defendants. The plaintiffs appeal.—

— Hon. W. H. Tedeord, Judge. Action at law to recover money alleged to be due. A jury having been waived, there was a trial by the court, and a judgment in favor of the defendant for costs. The plaintiff appeals.

— Hon. J. H. Apple-gate, Judge. Action at law to recover the purchase price of a binder. Defense, breach of warranty and failure of consideration. Trial to a jury, and, at the conclusion of defendant’s testimony, the court directed, a verdict for plaintiff, and defendant appeals.

— Hon. W. H. Tedeord, Judge. Suit in equity to set aside and cancel a deed for .certain lands in Decatur county, and to quiet plaintiff’s title in said property. From, a decree for plaintiff, the defendant Rich appeals.

— Hon. W. I. Babb, Judge. Action at law upon a promissory note of the defendant E. J. Sterrett, payment of which was guarantied by defendant Conrad Sterrett, Defense, payment and release by the substitution of one Brayton as paymaster. Trial to a jury, verdict and judgment for defendants, and plaintiff appeals.

— Hon. J. L. Stevens, Judge. Suit in equity to enjoin a nuisance alleged to have been created by defendant in establishing a place called “Market Square” within the city, whereat hogs, cattle, grain and produce were kept and sold, and for other relief. * Defendant was enjoined from using the place unless it removed the excrement deposited by the live stock daily, and otherwise the relief prayed for was denied. Plaintiff appeals.

<p>Appeal from Tama District Court — Hon. J. R. Caldwell, Judge.</p> <p>Indictment. Verdict of guilty and the defendant appeals.</p>

— Hon. W. D. Tisdale, Judge. Action at law to recover of the defendant the sum of one hundred and sixty dollars for boarding his wife. There was a trial by jury, and a verdict for the defendant. A motion for a new trial was sustained, and the verdict was set aside, and a new trial ordered. Defendant appeals.

<p>Appeal from Wapello District Court. — Hon. W. D. Tisdale, Judge.</p> <p>Action for damages for a personal injury. Trial to a jury. Verdict and judgment for plaintiff. Defendants appeal.</p>

— Hon. George . H. Carr, Judge. Action to quiet title in the plaintiff to the east half of the northwest quarter, section S3, township 99, range 38, W., fifth F. M., Dickinson county, Iowa, and for other relief. The issues and the facts sufficiently appear in the opinion. Decree was entered in favor of the plaintiff, from which the defendant appeals.—

— Hon. W. I. Babb, Judge. Action to recover a commission on a contract for the sale of real estate. Judgment for defendant, and plaintiff appealed.

— Hon. H. E. Deemee, Judge. Action to recover damages for personal injuries sustained because of a dangerous obstruction in one of the streets of the city, which was knowingly, negligently, and carelessly permitted to be and remain in said street by the defendant’s officers. The defendant answered, admitting that it was a municipal «orpora.tion organized as a city of the first class, and denying •every other allegation in the plaintiff’s petition contained.

— Hon. W. H. Ted-ford, Judge. Action at law to recover damages for a personal injury alleged to have been caused by reason of a defect in one of the streets of the defendant town. There was a demurrer to the petition, which was sustained, and the plaintiff excepted to the ruling, and judgment was rendered for the defendant for costs. Plaintiff appeals.

<p>Assignment of Error. That the court erred in sustaining defendants’ demurrer to plaintiffs’ reply, in entering judgment against appellants and in favor of appellees for costs, and erred in dismissing plaintiffs’ petition, are too indefinite.</p>

— Hon. A. R. Dewey, Judge. Action to recover for fees as constable. Counterclaims for taxes. Judgment for the defendant, from which the plaintiff appealed.

<p>Appeal from Des Moines District Court. — Hon. J. M. Casey, Judge.</p> <p>Action for damages for an alleged nuisance. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.</p>

Appeal -from Buchanan District Court. — Hon. John J. Ney, Judge. Action at law to recover damages for injuries done to some live stock shipped by plaintiff from Independence, Iowa, to Jamestown, N. D. The court, after sub-matting the case to the jury, recalled them, and gaye a peremptory instruction to find for defendants upon the pleadings. On plaintiff’s motion a new trial was-granted, and defendants appeal.

— Hon. N. B. Hyatt, Judge. Suits in equity to quiet plaintiffs’ title in and to lot 1, block 36, and lot 6, block 25, in East Ft. Dodge. From a decree for plaintiffs, defendant appeals.—

— Hon. N. B. Hyatt, Judge. Action to recover specific personal property. The court directed the jury to return a verdict for plaintiff, and defendant appeals.

Appealfrom Tama District Court. — Hon. John R. Caldwell, Judge.

— Hon. J. L. Stevens, Judge. Action at law to recover on account of an alleged breach of warranty in a conveyance of land. There was a trial by the court without a jury, and a judgment for the plaintiff. The defendant appeals.

— Hon. D. H. Hind-man, Judge. The defendant was convicted of the crime of uttering and publishing as true a false and forged instrument in writing, knowing the same to be false and forged, and was adjudged to be imprisoned in. the penitentiary for the term of two years. From that judgment he appeal's.

— Hon. S. M. Weaver, Judge. Action in equity for the specific performance of an alleged agreement to convey real estate, for an accounting, and for general equitable relief. A demurrer to the petition was sustained, and, the plaintiff refusing to plead further, judgment was rendered in favor of the defendants for costs. The plaintiff appeals.—

— Hon. John J. Ney, Judge. Action at law to recover the value of property alleged to have been conveyed by the plaintiff for the benefit of the defendant. When the evidence was fully submitted, the court directed a verdict for defendant, and rendered judgment in his favor for costs. Plaintiff appeals.

— Hon. Henry Bank, Jr., Judge. Action at law on a guaranty in writing of the liability of another. After the evidence had been fully submitted, the court directed a verdict for the plaintiff, and' rendered judgment in its favor for the amount of the verdict. The defendant appeal®.

<p>Appeal from Hardin District Court. — Hon. S. M. Weaver, Judge.</p> <p>■ Action on account. Judgment for plaintiff, and the defendant appealed.</p>

— Hon. C. M. Waterman, Judge. i R. W. Hinkhouse, guardian, appealed from the action of the board of equalization of the town of Wilton in refusing to equalize or cancel an assessment upon personal property belonging to his ward. From an order overruling his demurrer to defendant’s answer plaintiff appeals.

<p>3 Negligence per se: railroads. Kicking cars within a city, at illegal speed, with no one at hand, to check them or give warning to men working on parallel tracks, is negligence per se.</p> <p>4 5 Contributory Negligence: jury question. A track repairer stepped from a track where he was working, to let an engine pass. His attention was momentarily diverted; in a few seconds he was injured by kicked cars coming on a parallel track. He was inexperienced and had looked in that direction a moment before. Held, whether he contributed to the injury was a jury question. Haden v. Railway, 48 N. W. Rep., 733; Sehaible v. Railway, 56 NT. W. Iiep., 565; Keefe v. Railway, 93 Iowa, 183; Ruelow v. Railway, 93 Iowa, 340; Rutherford v. Railway, 59 N. W. Rep., 303, and Wilbur v. Railway, 57 N. W. Rep., 356, distinguished. See Kentucky Go. v. Smith, 18 L. R. A. 63, and note, and Pomporisov. New York Ry. (Conn.) 33 L. R. A. 530.</p> <p>6 Rothrock and Granger, JJ., dissenting.</p> <p>1 Practice. Defendant cannot complain that an issue was not stated by the court, where it is fully submitted in an instruction given on request of defendant.</p>

— Hon. P. W. Burr, Judge. It is in substance, shown by the petition that the plaintiff owns land in .sections 35 and 36 in one of the townships of the defendant county; that on the line between said sections is a public highway; that the natural drainage of the land in section 35 is across the line of said highway, the line of which drainage is now, and for a long time past has been, defined by a natural depression, and by ditche's excavated by plaintiff; that prior to the…

<p>Appeal from Taylor District Court. — Hon. H. M. Towner, Judge.</p> <p>Actions ' in equity. Decrees for plaintiffs. Defendants appeal.</p>

— Hon. N. B. Hyatt, Judge. Action to recover damages for being assaulted and abused and compelled to get off a train on the defendant’s railroad. At the close of tbe introduction of tbe evidence in bebalf of tbe plaintiff tbe court, on motion, instructed tbe jury to return a verdict for tbe defendant. From a judgment on tbe verdict thus returned i be plaintiff appeals.

- — -Hon. J. HE Hendeeson, Judge. This is a suit in equity to subject certain real estate to the payment of a judgment in favor of the- plaintiff, and against the defendant J. D. Smith. The defendants are husband and wife. After the cause of action upon which the judgment was rendered accrued, but before suit was brought thereon, the husband conveyed the real estate to Ms wife, and the plaintiff claims that the conveyance was fraudulent as to the creditors of the husband.

— Hon. A. Van Wagenen, Judge. Plaintiff states as a cause of action that on May 20,1887, the defendant H. F. Hogan executed to H. D. Booge, Jr., Ms promissory note, and mortgage on certain real estate to secure the same, which note was assigned to plaintiff, after maturity and is unpaid; that defendants Worth B. Reeve and William T. Reeve purchased said real estate, and assumed and agreed, as part of the purchase price, to pay said note and mortgage.

<p>Probate of Will: lost codicil. Proof that a codicil is lost will not defeat the probate of a confessedly last and duly made will, where the contents of the codicil are nob shown.</p>

— Hon. Frank R. G-aynor, Judge. Action to recover damages for the alleged negligent killing of five head of cattle by one of defendant’s freight trains, at a public highway crossing, in the night time of October 6,1890. The case was tried to a jury, and a verdict returned in favor of the plaintiff. Defendant’s motion for a new trial was overruled, and judgment entered on the verdict. Defendant appeals.—

— Hon. A. Van Wagenen, Judge. Plaintiff states as her cause of action, in substance, as follows: That she is the owner of lots 9 and 10 in block 48 in the town of Woodbine, in said county. That on the twentieth day of April, 1893, defendant served notice on her that, by virtue of three executions issued by the clerk of the district court of said county in the cases entitled, he had levied upon said lots as her property, and advertised the same to he sold.

- — Mow. John C. Sherwin, Judge. , Action at law to recover compensation alleged to ,be due for services rendered in the sale of real estate. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. A. J. House, Judge. The defendant leased the plaintiff his mill, operated by water power, for a term of years. The lease was made in May, 1890, and in March, 1891, the dam was destroyed by a flood, and the use of the mill was 1-ost to plaintiff; and this action is to recover damages for a breach of the terms of the lease, in not repairing the dam. Judgment for plaintiff, and the defendant appealed.

&emdash;Hon. Stephen F. Balliet, Judge. Plaintiff states his cause of action as follows: “That the defendant is indebted to the plaintiff in the .sum of one thousand six hundred dollars, held by him in trust for plaintiff, that being the amount realized from the sale of the real estate herein described, which amount defendant, at various times after the receipt of the same as trustee, agreéd to pay plaintiff.

— Hon. J. M. Casey, Judge. Tlie defendants, other than the company named above, are the Burlington, Cedar Rapids & Northern Railroad Company, Adam Moehn, and C. W. Rand, receiver.

<p>10 Will Contest: evidence. Declarations of testator, both before and after the execution of the will, as to her feeling toward contestant, her reasons for not recognizing him in the will, legatee’s influence over him and the disposition he desired to make, are admissible to show undue influence.</p> <p>6 Opinion: evidence is not admissible to show that testator acted under the control of a legatee.</p> <p>9 Same. A witness who has said that testator’s talk was disconnected, should be allowed to explain in what manner it was disconnected.</p> <p>1 Personal transaction. A contestant cannot state what testator said to him about disposing of his property, on the theory that it cannot be known until after the contest is decided whether contestant is a legatee.</p> <p>2 3 Same. Neither can he give an opinion as to sanity based on such conversations.</p> <p>4 5</p> <p>Same. But he may state testator’s condition, based on observation,</p> <p>though he may not answer a question which includes knowledge by observation and that derived from statements made to him.</p> <p>Same. And he may give testator’s declarations in a conversation in which witness took no part.</p> <p>7 Practice: admissions op party. Statements of legatee as to the distribution of the property, made before the execution of the will, are inadmissible.</p> <p>11 Statement of counsel. Where the court holds evidence admissible, if counsel will state it to have a certain purpose, and such statement is made, it is error to exclude the evidence.</p>

— Hon. George H. Carr, Judge. Proceeding in probate for the allowance of a claim against the estate of W. J. Collins, deceased. Judgment refusing to allow the claim, and dismissing petition at costs of plaintiffs, and they appeal.

— Hon. James D. Smythe, Judge. Action to recover damages, for tbe alleged wrongful taking of twenty-four barrels of linseed oil, tbe property of tbe plaintiff, by tbe defendant, as sheriff, under an execution in fa/vor of H. S. Clark & Co. against Mark & Mellinger, as tbe property of said Mark & Mel-linger. Yerdict and judgment in favor of tbe defendant. Plaintiff appeals.

<p>Appeal from, Chickasaw District Court. — Hon. L. O. Hatch, Judge.</p>

— Hon. John C. Sherwin, Judge. Action upon a policy insuring the plaintiff against loss by fire. Trial by jury. At the close of „the introduction of the evidence the court directed the jury to return a verdict for the plaintiff. From a judgment on the verdict, defendant appeals.

— Hon. N. B. Hyatt, Judge.- Action in equity to quiet title to certain real estate claimed by the plaintiff as depot grounds. Decree as prayed. Defendant appeals.

— Hon. J. H. Henderson, Judge. The parties, at the date thereof, executed the following contract: “Winterset, Iowa, Feb. 28,1893. S. W. Farmer bought of B. L. Thrift thirty-nine head of cattle, to be weighed up on full feed and shrunk three per cent, any time between the 1st and 20th of May, 1893, for which S. W. Farmer agrees to pay B. L. Thrift five cents per pound. Also from forty to fifty fat hogs to be weighed at Thrift’s, and delivered by Thrift in Winterset.

— Hon. D. R. Hind-man, Judge. Action to recover damages for a personal injury. Verdict and judgment for plaintiff. Defendant app eals.

<p>Appeal from Hamilton District Court. — Hon. Charles D. Goldsmith, Judge.</p> <p>Action in equity to enjoin the collection of a tax. Decree for plaintiff. Defendants appeal.</p>

The defendant was the presiding judge at the March term of the district court in and for Monona county in the year 1894, at which term there was pending an action for divorce of Maria Hamman, plaintiff herein, against Henry Hamman; and during said term, and on the twenty-sixth of March, a decree was entered in said case, awarding to the plaintiff a divorce, and making such a disposition of the property found to have been accumulated by both of the parties that the defendant…

— Hon. W. D. Tisdale, Judge. Action to recover one hundred' and forty-nine dollars and eleven cents, with interest from April 5, 1893, alleged to be due as a balance on a contract for the sale of a stock of merchandise. Defendant denies that he is indebted to plaintiff. The facts and the issues will sufficiently appear in the opinion.

— Hon. George H. Carr, Judge. Action for taxes paid by mistake. The court overruled a demurrer to the petition, and from a judgment the defendant appealed.

— Hon. L. O. Hatch, Judge. Action at law to recover for a personal injury. Trial by jury. Judgment and verdict for tbe plaintiff. Defendant appeals.

<p>Appeal from Delaware District Court. — Hon. John J. Net, Judge.</p>

<p>Appeal from Mitchell District Court. — Hon. P. W. Burr, Judge.</p> <p>Proceeding in probate for the allowance of a claim against an estate. Claim disallowed. Claimant appeals.</p>

— Hon. J. H. Preston, Judge. Action at law to recover damages for personal injuries received by plaintiff in a collision with one of defendant’s cars at a street crossing in the city of Cedar Rapids. The case was tried tqva jury, verdict and judgment rendered for plaintiff, and defendant appeals.

— Hon. P. W. Burr, Judge. Action at law to recover for the conversion by, defendant of certain oats, upon which the plaintiff claimed a landlord’s lien. The case was tried in the court without a jury, and judgment rendered for plaintiff. Defendant appeals.

— Hon. F. R. G-aynor, Judge. Or the nineteenth day of November, 1892, the dead body of William Follis was found underneath a railway bridge in Sioux City, Iowa, across Perry creek. .The body was lying face down in the water, and had evidently fallen or was thrown from the bridge. Deceased held a policy of accident insurance in the defendant company; Ms wife, the appellee herein, being the beneficiary named therein.

— Hon. Soott M. Ladd, Judge; This is a controversy between creditors, as to their respective priorities to the funds of the Sioux City Dry-Goods Company, now in the hands of W. F. Thomas, assignee. The lower court held that plaintiffs were entitled to* share with the other creditors who had filed their claims within the three months provided by the statute, and the assignee and other creditors appeal.—

— Hon. Georoe H. Carr, Judge. Action at law to recover.attorney’s fees and incidental costs and expenses. The court directed a verdict for defendant. Plaintiffs appeal.

— Hon. George W. Wakefield, Judge. Action at law to- recover for services alleged to have been rendered in the sale of real estate. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiff appeals.

Appealfrom Monona District Court. — Hon. E. R. G-aynor, Judge. Action in equity for the interpretation of the will of Baxter Whiting, deceased. There was a hearing on the merits, and a decree in favor of the Home for Aged Women of Cleveland, Ohio. The defendants, the Home for Aged Women of Cedar Eapids, Iowa, and the Clarissa C. Cook’s Home for the Friendless of Davenport, Iowa, appeal,

Appealfrom Clayton District Court.-HoN. L. 0. HATcH, Judge. Action at law to reewer the amount of a loss alleged to ha~e been covered by a, policy of insurance issued by the defendant There was a trial by ju~y, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. Geobge W. Waxeeield, Judge. , Action ait law on a policy of insurance. A demurrer .to the petition was sustained, and, the plaintiff refusing to plead further, judgment was rendered in favor of the defendant for costs. The plaintiff appeals.—

— Hon. Frank. R. Gaynor, Judge. Action in equity for judgment upon notes and for the foreclosure of a mortgage securing said notes. Decree for plaintiff. Defendant appeals.

— Hon. N. B. Hyatt. Judge. The issues in this case are upon the answers of the garnishee. Judgment for the garnishee, and the plaintiffs appealed.

— Hon. A. Van Wagenen, Judge. The plaintiff leased to Al. Holman and Thomas Barry certain land for the year 1893, and they sublet a part of it to J. A. Miller. Of the grain raised on the land, and on which plaintiff had a lien, ninety bushels and twenty pounds of wheat and three hundred and thirty bushels and twenty-four pounds of flax, of the agreed value of two hundred'and ninetyHsix dollars and forty-five cents, were sold to the defendant company.

<p>Jurisdiction on Appeal: notice. Where an abstract shows date of serving notice of appeal but not the date of the judgment, the appeal will be dismissed because it does not affirmatively appear that notice was served within due time.</p>

<p>Appeal from Plymouth District Court. — Hon. Soott M. Ladd, Judge.</p> <p>Action on a bond. Trial to court. Judgment for plaintiff, and defendants appeal.</p>

— Hon. J. L. Husted, Judge. Action at law to recover an endowment upon certificates in the defendant association. The lower court overruled a demurrer to the plaintiff’s petition, and rendered judgment against defendant for the sum of one thousand dollars, and defendant appeals.—

— Hon. Soott M. Ladd, Judge. Action in equity to quiet in the plaintiff ¡the title to two hundred and forty acres of land in O’Brien county, claimed by the defendant. There was a hearing on the merits, and a decree for the plaintiff. The defendant appeals.

— Hon. H. E. Deemer, Judge. Action at law to recover the amount of a promissory note alleged' to have belonged to the plaintiff, and to have been collected by the defendant. A motion to strike out portions of the answer filed by the defendant was sustained, he refused to plead further, and judgment was rendered in favor of the plaintiff for the amount of the note and costs. The defendant appeals.

<p>1 4 2 5 Insurance: waiver. A fire destroyed all of plaintiff’s papers of account except a small day book. Defendant’s secretary requested plaintiff to get duplicate bills of his purchases and agreed to send' an adjuster, after they should be secured. Plaintiff understood that the duplicate should cover since December, 1892, and defendant, that they should embrace since January, 1892. Plaintiff did procure duplicates covering purchases after December, 1892, and notified the insurer that he would be ready for the adjuster after March 5,1893. He also, within sixty days after loss, served proof of loss on the soliciting agent of the defendant and mailed a copy to the insurer. The company answered said notification of readiness to receive the adjuster, by an inquiry if it was to be understood that plaintiff would then have duplicate bills since January 1, 1892, “according to our understanding,” and advised plaintiff that when it was informed that such duplicates were on hand, it would “give the matter the necessary attention.” Plaintiff answered, “of course, as you have our understanding regarding the duplicate bills, nothing further need be said in the matter. The proof of loss we sent you, and made service here.’’ The company answered: “Our soliciting agent sends us a> paper served on him. We have received a similar paper from sheriff. We decline to accept it as proof of loss as being incomplete and unsatisfactory. Since the loss was reported we have tried to ascertain its amount, and you have wholly failed to give us the information to which we are entitled, and in accordance with our requests. We hold these papers subject to your order. We notify you that only such papers as comply in every respect with the printed conditions of our policy will be accepted as proper proofs of said loss.” EM, a finding that all proofs of loss except such as the duplicates covering a period since December, 1893, constituted» was waived, will not be interfered with.</p> <p>'3 6 Same. That the policy required assured to produce books of account and other proper vouchers, and permits copies and extracts to be taken therefrom, does not make it his duty to provide such duplicate bills, and thus prevent their furnishing from being a consideration for a waiver.</p>

— Hon. L. O. Hatch, Judge. Suit in equity to quiet plaintiff’s title to lot 6, block 20, in the city of Decorah, Iowa, and to set aside and cancel certain deeds covering the property from W. W. McHenry and wife to Lawrence Allison, and from Lawrence Allison to his codefendant, Richard F. Allison.

— Hon. Charles D. Goldsmith, Judge. Action in equity to recover for labor and materials furnished for the erection of buildings on two lota in the town of Vail, and to establish a mechanic’s lien for the amount due. There was a hearing on the merits, and a decree in favor of the plaintiff, as prayed, for the sum of one hundred and thirty-one dollars and sixty-four cents and costs. The plaintiff appeals.

<p>Appeal from Buena Vista District Court. — Hon. Loir Thomas, Judge.</p> <p>Action to subject property to the payment of a judgment. Judgment for defendant, and the plaintiff .appealed.</p>

<p>Damages: change oe grade. Under Code, section 469, which provides that where a city has established the grade of a street, and any person has made improvements thereon, and the city alters such grade to the injury of such property, the city shall respond in damages, the owner of a house built on the established grade, which was subsequently changed by the city, can recover for injury, though the final grade is on a line with the then natural surface of the street.</p>

— Hon. J. H. Henderson, Judge. Action in equity to redeem from a sale of land on a judgment and decree of foreclosure of a mortgage. Decree was entered dismissing plaintiff’s petition, and (quieting the title of tbe defendant Jolm Mellet to the land described. Plaintiff appeals.

— Hon. Lot' ' Thomas, Judge. Action at law to recover damages for the alleged conversion) of certain personal property upon which plaintiff had a landlord’s and mortgage lien. Trial to-a jury. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. Walter I. Smith, Judge. Creditors’ bill to set aside a conveyance of real estate from defendant H. C. Roark to bis wife, Mary J. Roark, and to subject tbe property to tbe payment of plaintiff’s judgment. From a decree for plaintiff, defendants appeal. —

— ITon. Walter I. Smith, Judge. Plaintiff’s intestate was killed on defendant’s line of road, and this is an action to recover damages to her estate. The court directed a verdict for the defendant, and the plaintiff appealed.

— Hon. D. R. Hind-man, Judge. Plaintiff asks an order to sell an undivided one-half offthe homestead property of herself and deceased husband, to pay debts of said estate. Defendants, the brothers and sisters of deceased, and only heirs, answered, alleging, among other defenses, that this action is barred by the statute of limitations. As the other defenses are not insisted upon in argument, they need not be noticed. Decree was entered granting an order as prayed.

— Hon. A. Van Wagkenen, Judge. Suit in equity to foreclose a mortgage executed by defendants upon certain real estate to secure the payment of eight notes made by defendants to plaintiff’s assignor, S. F. Winch.

— Hon. H. K Deemer, Judge. . Action in equity to recover the amount due on two promissory notes, and for the foreclosure of a mortgage given to secure their payment. The defendants filed a motion to strike certain portions of the petition. The motion was overruled in part.- The defendants LibbieG.

— Hon. A. B. Thornell, Judge. Action on a written contract for the purchase price of a piano. Trial to a jury. Verdict and judgment for defendant. Plaintiff appeals.

<p>Appeal from Cass District Court. — Hon. A. B. Thornell, Judge.</p> <p>Action at law to recover specific personal property levied upon by tbe defendant as belonging to L. O. Peterman. Verdict and judgment for plaintiff for tbe 'major part of the property, and for defendant for the remainder. Defendant appeals.</p>

— Hon. A. Van Wagenen, Judge. . Action at law to recover for work and labor, for slanderous utterances used by defendant of and concerning the plaintiff, and for alienating the affections of her husband. Trial to a jury. Verdict and judgment for plaintiff for the alleged slander and alienation of her husband’s affections. Defendant appeals. — ■

— Hon. George W. Paine, Judge. Tbe parties entered into an oral agreement, whereby the defendants were to drill and case for the plaintiff a well for the agreed price of one dollar and twenty cents a foot for the first one hundred feet, and twenty-five cents per foot additional after that depth. The well was drilled to a depth of one hundred and twenty feet, for which the plaintiff gave his note for one hundred and forty-nine dollars.

Cross Appeals from Hamilton District Court. — Hon. D. R. Hindman, Judge. Plaintiff prosecutes this action in equity to cancel a certain contract .in writing for the sale and conveyance of three hundred and nineteen acres of land described. Issues were joined as will hereafter appear.

— Hon. J. H. Preston, Judge. Action to test the right of the defendant Smith to the office of mayor, -and the defendants Boyd and Keedick to the office of trustees, of the incorporated town of Mt. Vernon, Iowa.

— Hón. A. B. Thornell, Judge. Action at law against Thomas J. Eyan and James Atkinson to recover the amount alleged to be due on a promissory note. William Manatt intervened, and claims to be the owner of the note. There was a trial by jury, and a verdict for the plaintiff, on which judgment was rendered against Atkinson for the amount of the note. Atkinson and Manatt appeal.

— Hon. O. M. Waterman, Judge. This is an action at law to recover a broker’s commission for the sale of certain real estate. The action was commenced before a justice of the peace, where it was tried, and then appealed to the district court. There was a trial by a jury, and the court directed the jury to return a verdict for the defendant. From a judgment on the verdict, the plaintiff appeals.—

— Hon. S. M. Weaver, Jurlge. February 7, 1894, plaintiff filed his petition, alleging that he is the owner and holder of the promissory note set out; that there is due and owing to him thereon the sum of one thousand four hundred and three dollars and twenty-eight cents, no. part of which bias been paid; wherefore he asks judgment against the defendants for that amount, and for costs and attorney’s fees.

— Hon. J. H. Peeston, Judge. Action at law to recover damages alleged to have been caused by malicious prosecution of criminal proceedings instituted by the defendants. There was a trial by jury, and a verdict and judgment in favor of the plaintiff, and against the defendants Anton Novak amd Jacob Pauba. Prom that judgment 'the defendants named appeal.

— Hon. Charles D. Goldsmith, Judge. This is a proceeding in pairtitioin. Thle court granted! the prayer of plaintiffs’ petition, and defendants Sarah Bell Moody, W. C. Moody, Jr., and! Peter Turner appeal. The facts are stated in the opinion.

— How. A. E. Dewey, Judge. The defendant was indicted for the crime of. murder* in the first degree. He was convicted of the crime of manslaughter, and sentenced to a term of. six month® in the. penitentiary, from which 'he appeals.—

— Hon. J. H. Preston, Judge. The petition- in s-ubstauce, stows that the defendant is a pharmacist in the city of Cedar Rapid-s; that plaintiff, being in need of medicine, went to defendant’s store, and asked for whisky alnld quinine; that -the defendant either willfully or negligently, gave to plaintiff, instead of whisky and quinine, some dangerous or violent drug or medicine, which plaintiff believes to have been croton oil, which plaintiff took; and that it made him…

— Hon. P. W. Burr, Judge. Plaintiff, tire owner of ninety acres of land situated within the incorporated limits of the defendant city, prosecutes .this action to cancel certain taxes levied upon said lands for general, incorporation purposes for the year 1893, and to restrain the collection, thereof. Judgment was entered for plaintiff as prayed. Defendant appeals.

<p>Appeal from Fremont District Court. — Hon. A. B. Thornell, Judge.</p> <p>Action in equity. Decree for plaintiff. Defendant appeals,</p>

— Hon. F. R. GIaynor, Judge. Action at law to recover damages for the death of plaintiff’s intestate, which, it is alleged, was caused by the negligence of the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff for five hundred dollars. The plaintiff appealed.—

— Hon. D. R. Hind- ' man, Judge. This is a suit iu equity, involving the title to a forty-acre farm. There was a decree for the plaintiff, and the defendants appeal.

— Hon. C. P. Holmes, Judge. Action iu equity to quiet in the plaintiff the title to certain real estate. There was a heating on the merits, and a decree for the plaintiff. The defendants appeal.

— Hon. J. B. Caldwell, Judge. Action by H. C. Sanford1 against the First National Bank of Belle Plaine and S. B. Hamilton to recover as liquidated damages certain moneys deposited with defendant bank by Hamilton, to be paid plaintiff in the event Hamilton failed to consummate an agreement of partnership entered' into with plaintiff. The court directed a verdict for plaintiff, and defendant Hamilton appeals.

— Hon. J. J. Hey, Judge. The plaintiff is administrator of (the estate of Robert K'eatley, deceased'. This action was brought to- recover damages of the -defendant for causing the death of the deceased, which occurred by reason of a railroad car -on thle defendant’s road1 leaving the track, and tipping over, and falling -on Mm. There was a trial- by jury, which resulted in a verdict and judgment f-or the plaintiff. Defendant appeals.

— Hon. W. H. Tisdale, Judge. Action: upon a written contract, to recover three hundred and) fifty-seven dollars, with interest, for shoves sold and delivered. Defendants answered, and' the case proceeded to trial. After plaintiff rested, the defendants withdrew their answer, and filed- a substituted answer. The original answer isi not set out in the record.

— Hon. J. H. Preston, Judge. December 17,1890, defendant was indicted' for tbe crime of murdering his father-in-law, one G. P. Fifield. In June, 1894, he was tried and convicted of the crime of murder in the second degree, and was sentenced to imprisonment for life. He appeals.

<p>Appeal from Sr-ott District Court. — Hon. C. M. Waterman, Judge.</p> <p>Action to recover upon a contract for drilling a well, and to establish a mechanic’s lien.</p>

<p>Undenied amendment to abstract is deemed true.</p>

— Hon. D. Rtan, Judge. Suit in equity to have an absolute deed made by plaintiff to defendant declared a mortgage, for an accounting, and other equitable relief. From a decree dismissing the plaintiff’s petition, he appeals.

— Hon. D. R. Hindman, Judge. Action to recover the value of two horses injured by the defendant. Verdict and judgment for plaintiff. Defendant appeals. The negligence charged in the petition is in improperly constructing the cattle guard, in permitting it to become filled with snow and ice, and in failing to stop the train after the horses were seen by defendant’s employes who were in charge of the train.

Appealfrom Harrison District Court. — Tl This is a proceeding by which the plaintiff seeks by garnishment to subject a! certain promissory note in the possession of Stem & Milliman to the payment of a judgment against the defendant, O. W. Girton. M. E. Girton intervened in the action, claiming to be the owner of the note. There was a trial before the court without a jury, and a judgment for the plaintiff. M. E. Girton appeals.—

— Hon. A. R. Dewey, Judge, The plaintiffs are six in number. The defendants are the defendant city and one Fitzgerald, its street commissioner. North B street is in the defendant city, running north and south, and the plaintiffs are property owners on either side of it, and reside on said street. The petition represents: “(3) That said North B street has been established and open for more than forty years.

— Hon. A.Van Wagenen, Judge. Action at law to recover damages for a personal injury. Trial by jury. Verdict and judgment for the plaintiff. Defendant appeals.

<p>Appeal from Polk District Court— Hon. C. P. Holmes, Judge.</p> <p>Action to set aside a deed of conveyance. Judgment for defendants, and the plaintiffs appealed.—</p>

— Hon. P. W. Burr, Judge. Action upon complaint of E. P. Stubbs, a resident and citizen of Cerro Gordo county, to abate, as a nuisance, a certain place owned by defendant Ward and kept by defendant Lantz, for the sale of intoxicating liquors, contrary to law.

<p>Negligence. It is held that the court should not have allowed jury to find that an engineer was negligent for simply whistling “off brakes.” Ochiltree v. R’y, 93 Iowa, 628, followed.</p>

<p>Liquor nuisance: held established.</p>

— Hon. J. M. Casey, Judge. On the eighth day of March, 1880, the plaintiffs, William Coulee .and wife, made to the defendant their promissory note for one thousand two hundred dollars, and secured- the same by mortgage on the southeast quarter, section 15, township 67, range 5, W., In Lee county, Iowa.

— Hon. C. M. Waterman, Judge. Action at law to recover for personal injuries alleged to 'have been sustained by the plaintiff in consequence of negligence on the part of the defendant. There was a trial by jury, and a verdict for the plaintiff. A motion for a -new trial, filed by the defendant, was overruled, and judgment was rendered on the verdict. The defendant appeals.

— Hon. A. R. Dewey, Judge. Action in equity for divorce and for .the custody and control of minor children. There was a hearing on the merits, and a decree of divorce was rendered in favor of the plaintiff, but she was denied the custody and control of the children. The defendant appeals.—

<p>Evidence fails to show delivery of deed.</p>

<p>•Judgment lien held superior to &, claim of equitable title to land.</p>

— Hon. J. M. Casey, Judge. Action for the partition of real estate. The defendant Ann Brennan makes equitable Claim against her cotenants for four hundred and forty dollars for taxes and insurance paid, and for permanent improvements, upon the property. It appearing that the property could not be divided, decree was entered for its sale, a referee appointed, and it was ordered that out of the proceeds he pay Ann Brennan one hundred dollars in satisfaction of said claim.

— Hon. T. M. Giberson, Judge. Action te recover six hundred dollars, as double damages for killing one horse and injuring another, because of certain alleged acts of negligence upon the part of the defendant. The case was tried to a jury, and a verdict returned in favor of the plaintiff for two •hundred dollars. Plaintiff moved for a new trial upon the ground that the amount of damages allowed is too small.

<p>Appeal from Davis District Court. — Hon. W. I. Babb, Judge.</p> <p>Albert J. Thorp was convicted of the crime of larceny, and ■appeals.</p>

— Hon. W. D. Tisdale, Judge. W. B. Waddle was indicted for the crime of endeavoring to commit, or procure another to commit, perjury. He was convicted of the offense charged, and sentenced to imprisonment in the county jail, and from the judgment pronounced appeals.

<p>Appeal from Woodbury District Court. — Hon. F. R. Gaynor, Judge.</p> <p>Indictment for adultery. ' Verdict of guilty, and a judgment from which the defendant appealed.</p>

— Hon. George W. Paine, Judge. The defendant was indicted, tried, and convicted at the crime of stealing hogs, and appeals,

— Hon. John R. Caldwell, Judge. The defendant was convicted of the crime of nuisance, committed by owning and keeping for sale and selling, in a certain building, intoxicating liquors, in violation of law. From the judgment rendered against him he appeals.-—

— Hon. J. H. Applegate, Judge. Action at law to recover for the death of the plaintiff’s intestate, which is alleged to have been caused by the negligence of the defendant. There was a trial by jury, and a verdict for the defendant, by direction of the couri. From .he judgment rendered in favor of the defendant for costs, the plaintiff appeals.

— Hon. M. J. Wade, Judge. Action to recover certain personal property which was in the possession of the defendant Thomas Boyle, as sheriff, under writs of attachment against W. H. Evans. The plaintiff claims that he was the owner of the property at the time it was seized upon the attachments. There was a trial by jury, and a verdict and judgment for the defendants. Plaintiff appeals.

— Hon. John R. Caldwell, Judge. Action In equity to compel specific performance of a written contract for the sale and conveyance of certain real estate described, and also to recover -damages for causes hereafter stated. Defendant denies that the written contract set out contains all the agreement between the parties.

<p>Highway damages held inadequate.</p>

<p>Reversal which approves denial op motion por change op venue DOES NOT REMAND THE MOTION POR RETRIAL.</p>

<p>Appeal from Polk District Court. — Hon. C. P. Holmes, Judge.</p> <p>Action upon a promissory note. Trial by jury. -Verdict and judgment for the-plaintiff. Defendant appeals.</p>

— Hon. Scott M. Ladd, Judge. This is a suit in equity for an accounting by the defendant, who was assignee of an insolvent debtor. There was a full hearing in the district court, and a decree was entered against the plaintiffs, from which they -appealed—