Volume 96 — Iowa Reports

— Hon. Lot Thomas, Judge. Action for the recovery of specific personal prop«erty. Judgment for defendant, and the plaintiff appealed.

<p>2 4 Levy: Actual Custody. Where the sheriff in attaching a stock of implements makes full inventory, leaves the goods in the building, puts them in charge of a bailee.from whom he takes receipt and whom he directs to hold the property until further order of court, it is a sufficient compliance with Code, 2967, which requires the sheriff to take property into his custody, if it be capable of manual delivery, though attaching defendant had access to the building, was allowed to use some of the office furniture in it, and through misapprehension sold two pieces of the machinery which were left on the outside of the building.</p> <p>1 3-5 6 Notice. The notice required by subdivision 1 of Code, 2967, to be served on the attaching defendant, must be in writing and it must not merely give notice that the writ has issued but also that levy has been made.</p> <p>7 Waiver: estoppel! Where plaintiff has insisted on holding the property of defendant under levy of an attachment in spite of the fact that no written notice of levy was served, it is estopped to assert against a counterclaim for wrongful attachment, that defendant has waived the failure to notify by acquiescence in the levy after notice by word of mouth.</p> <p>8 Estoppel: Practice. One cannot complain of an instruction which is in harmony with one offered by himself.</p>

<p>Appeal of One Defendant. Where, after judgment against a principal and two sureties on a bond, one of the sureties alone appeals, without serving notice of appeal on his cosureties, the appeal will be dismissed. See Ash u. Ash, 90 Iowa, 229.</p>

<p>1 2 8 4 5 Partnership. For convenience, P. carried on a business under the name of P. & Co. He had a contract with plaintiff’s husband that the latter should act as manager of the business, that P. should control it and direct said manager, who should be compensated by receipt of one-half of the net profits, nothing being said about sharing losses. Said manager, without the knowledge of P. made a note to plaintiff, signing thereto the name of P. & Co., by himself as manager. Plaintiff knew that her husband was, alio wed to draw but a limited sum monthly. Held, there was no partnership inter se, that plaintiff cannot recover against P. without proof that she was ignorant of the provisions of said contract or proof that she was induced to believe by defendant’s acts that a partnership existed.</p>

— Hon. N. W. Macy;, Judge. Action at law' upon two. promissory notes. Defense, payment. Trial to a jury. Verdict and judgment for defendants, and plaintiffs appeal.

— Hon. A. Van Wagenen, Judge. Suit in. equity to restrain an execution, sale of certain real ..estate levied upon as the property of one E. G. Tyler, to remove a cloud upon plaintiff’s title .created by a certain judgment in favor of Budd against said Tyler, and for other relief. From a decree dismissing plaintiff’s petition in part, she appeals.

<p>Appeal from Wright District Court. — Hon. E>. R. Hind-man, Judge.</p> <p>Plaintiff, in- 1891, leased to- the defendants a creamery building and certain personal property for the period of three years. The property was situated at Belmond, Io-wa. In December, 1892, the property was burned; and this- action is to- recover therefor, on the ground of negligence in operating and caring for the boiler and engine therein. There was a judgment for the plaintiff, and the defendants appealed.—</p>

<p>1 4 5 3 Plea of Performance: issue upon. While our Code allows the performance of conditions precedent to be alleged as a general conelusion and requires an answer controverting such an allegation to state specifically in what particular there was non-performance (Code, 3715, 3717), the plaintiff may waive the benefits given him by these statutory provisions; and where be attempts to set out the facts constituting performance on his part, instead of contenting himself with stating performance as a conclusion, an issue is raised by answer in the nature of a general denial, though it fails to point out in what particular there was no performance. Hagan v. Oo., 81 Iowa, 333, distinguished and modified.</p> <p>3 6 Proof of toss. Where such proof fails to comply with the requirements, either of the policy issued or the Code, it is inadmissible in evidence, and a verdict should be directed for the insurer.</p> <p>7 Waiver of proofs of loss is not available unless pleaded.</p>

<p>1 Evidence. Where one side urges that no wages were paid and the other asserts payment in full, plaintiff may state what amount defendant has paid him on account of wages.</p> <p>3 Same. On defendant’s allegation that plaintiff’s services were paid for in care and education, plaintiff may show what work he did and what clothing he was furnished.</p> <p>5 10 Same. Plaintiff stated that he was taken sick in defendant’s house after he had been turned off by defendant; that plaintiff paid one and the county the other doctor. Held, not to be prejudicial error; especially where defendant urges that plaintiff was paid not only in education, clothing, etc., but in the benefits and influences of a home, care bestowed, and all these matters that influence and surround boys and really fix and determine their character and work in manhood.</p> <p>2 Relevancy. Where one is sued for the service of a minor whom he took to live in his family, it is immaterial how long the minor lived with the person from whom he was taken, what efforts had been made to get him a home and whether the minor considered himself to be the adopted son of defendant.</p> <p>4 6 7 8 9 Services of Member of Family. The presumption is that such services were rendered gratuitously and plaintiff must overcome it by evidence fairly showing that there was an express promise to pay or a“n understanding and expectancy that payment would be made; and on the question whether the defendant expected to pay, it may be shown that he promised plaintiff a sum of money and a team if he would continue to live with him a certain time. Neither is the amount which may be recovered limited to such sum and team.</p>

— Hon. Charles D. Goldsmith, Judge. Proceeding for1 the interpretation of a will which contained a devise of real estate. From, a judgment in1 favor of the defendant, the plaintiff appeals:—

— Hon. J. L. Husted, Judge. Action in equity to enjoin the defendants from withdrawing the First Free Baptist Church of Waterloo, Iowa, from the Free Baptist and uniting with the Baptist denomination. The plaintiffs filed a petition in which an injunction was asked. A temporary injunction was granted and thereafter an answer was filed, and also a motion, supported by affidavits to dissolve the injunction.

<p>Appeal from, Warren District Court. — Hon. J. H. Henderson, Judge.</p> <p>Action on a policy of fire insurance. Judgment for the plaintiff, and the defendant appealed.</p>

<p>1 Husband and Wife: debtor and creditor. Where a wife permits the husband to expend her money for the support of the family and in his business, without any contract for its repayment, she cannot, in the absence of an express agreement, recover the amount so advanced.</p> <p>2 Practice: trial to court. In a trial by a court, on motion to dismiss for want of evidence, the question is whether plaintiff has made his case by a preponderance of the evidence.</p>

<p>Appeal from Carroll District Court. — Hon. Georg-e W. Paine, Judge.</p> <p>Action- upon- a promissory -note. Trial to the court. Judgment ior plaintiff. Defendant appeals.</p>

— Hon. A. Yan Wagenen, Judge. The firm of Stick, Kem-p & Co. was composed of Daniel Stick, his son D. L. Stick, and J. A. Kemp. In June, 1891, the firm engaged in a business of general merchandise in Sioux City, Iowa, and for that purpose it leased of the intervener State Bank Building Company, a building, and occupied 'the same. The interveners M. A. and L. J. Stick are the wives, respectively, of Daniel and D. L. Stick.

— Hon. C. D. Goldsmith, Judge. Suit in equity to restrain an execution sale of real estate which plaintiff claims to be the owner of. Decree for plaintiff, and defendants appeal.—

— Hon. S. F. Balliet, Judge. The defendant was indicted for willfully, feloniously, and unlawfully using a certain instrument upon the body of one Helen Berhow with thé intent to produce a miscarriage. There was a trial by jury and a verdict of guilty. From a judgment on the verdict the defendant appeals.

— Hon. James D. Gteein, Judge. Prior to the first of June, 1891, W. H. Thompson, wais the owner of a stock of jewelry at Cedar Rapids, Iowa. Held: and before' it was placed of record, Stein & Elbogan Company, without knowledge of the mortgage, sold to Thompson goods on credit, for which about May 5, 1893, there was a balance due of one hundred and sixty-nine dollars and twenty-eight cents.

— Hon. John R. Caldwell, Judge. Suit in equity to enforce a certain chattel mortgage, executed by G. F. Snyder to plaintiffs, to secure a certain note in .the sum of five hundred dollars. From a decree refusing the foreclosure of the mortgage, plaintiffs appeal.

— Hon. D. J.. Lenehan, Judge. Action in equity to have set aside a general assignment for the benefit of creditors, to have declared not collectible certain instruments in writing executed by the plaintiff and others, to have canceled an assessment made on those instruments, to enjoin the maintenance of actions to recover the assessment, for the appointment of a. receiver, to require an assessirnent against certain guarantors, and for general equitable relief.

— Hon. D. B>. Hindman, Judge. Action on a promissory note. Judgment against defendant Getz and in favor of plaintiff; also judgr ment in favor of Geéz and against the defendant society. Both Getz and the Equitable Life Assurance Society appeal.

C. P. Holmes, Judge. Action at law by plaintiff, a judgment creditor of the Olsen-Welch Printing Company, a corporation organized under tbe laws of this state, to recover the amount of its judgment from the defendant, a stockholder in said corporation, under the provision of sections 1082-1084 of the Code of Iowa, The case was tried to the court without the intervention of a jury,, and! judgment was rendered for plaintiff. Defendant appeals.

— Hon. S. M. Weaver, Judge. Action to- recover damages for setting out a fi.ru which burned up a large quantity of hay, the property of the plaintiff. There was a trial by jury, and a verdict and judgment for the defendant, and plaintiff appeals.

— Hon. Geobge W. Paine, Judge. In 1889, the plaintiff was clerk of the defendant county, and one Lynch was his deputy, and this action is for money paid by the plaintiff for the services of the deputy. There was a judgment for plaintiff, and the defendant appealed.

— Hon. D. Ryan, Judge. This action was commenced by Abel E. Dungan to recover for personal injuries alleged to have been sustained while a passenger on one of defendant’s trains, because of the negligent of defendant’s employes in not permitting the train to remain stopped long enough for him to alight therefrom at the place of his destination, and because of starting said train with a sudden jerk, and because there was no chain or rope between the guard rails on the rear…

— Hon. N. W. Maoy, Judge. Action to recover a balance due on a sale of cattle and hogs. Judgment for plaintiff, and defendant appealed.

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

<p>1 2 Eax Deed: notice to redeem. Land was taxed to a wife. She and her husband occupied it. Notice to redeem from the tax sale was served on the husband alone. Held, a tax deed based on the sale is void — Code, 894.</p> <p>5 Practice: pleading. Petition to redeem from tax sale which does not show that petitioner has paid all taxes must be attacked by demurFsr or motion in arrest, and the defect is waived if the objection be taken by answer.</p> <p>8 4 Practice in Supreme Court: objection below. Where the allegations of a cross bill are denied in a petition, they will not be deemed admitted for want of reply. And where an equity cause has been tried below as though said allegations were denied, they will be deemed denied on appeal.</p> <p>6 Same. Objections to a deposition taken before a stenographer on agreement cannot be first urged on appeal.</p> <p>7 Presumption in payor oe court below. Where deeds which it is complained are defectively acknowledged do not appear in the record, it will be presumed that the court below rightly admitted them.</p>

— Hon. J. H. Preston, Judge. Action at law to recover damages from defendant for maliciously destroying a cattle pass claimed by plaintiff across and under a highway bridge in Oedar county, Iowa. There was a trial to a jury, and at the conclusion of plaintiff’s testimony the court directed a verdict for defendant. Plaintiff appeals..

— Hon. S. F. Balliet, Judge. Action at law to recover tbe value of a mink dolman. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants appeal.—

— Hon. J. H. Apple-gate, Judge. The plaintiffs are the publishers of the Guthrian a weekly newspaper published in Guthrie county. In January, 1893, they applied to the board of supervisors of that county to have their newspaper selected as one of the official newspapers of the county under the provisions of section 307 of the Code. The hoard denied the application, and selected the Guthrie Times, a weekly newspaper published in the county by the defendant.

— Hon. J. H. Preston, Judge. Action at law to recover for the .breach of warranty of a threshing machine sold by the defendant to the plaintiffs. Trial by jury. Verdict and judgment for the plaintiffs. Defendant appeals.

— Hon. J. H. Henderson, Judge. Plaintiff, a judgment creditor of the defendant B. N. Peck, prosecutes this action to subject two pieces of real estate described, to the payment of his judg; ment.

— Hon. John R. Caldwell, Judge. Edward1 Drahos was a member of the defendant company, and as such he held a certificate entitling the plaintiff as. beneficiary therein, to five thousand dollars in case of his death by accident.

<p>Law of the Case. Where it is instructed that a sale by an insane person is valid if made upon a present consideration, a verdict setting the sale aside should not be allowed to stand where it is clear that a present consideration passed.</p> <p>Deemer, J., took no part.</p>

— Hon. A. Yan Wagenen, Judge. Action ait law upon a policy of flue insurance. Verdict and judgment for plaintiff, and defendant appeals.

<p>Appeal from Council[ Bluffs Superior Court.- — Hon. J. E. F. McGee, Judge.</p>

— Hon. Lot Thomas, Judge. Plaintiffs' starte- a® their cause of action that on the twenty-sixth day of August, 1893, Henry Neble and Fred Boese executed and delivered to them a chattel mortgage upon thirty head of cattle described’ therein, of the actual value of seven hundred dollars, to secure payment of a promissory note for six .hundred and fifty dollars, no part, of which has been paid; that the defendant ha® taken possession of and wrongfully detained said property…

— Hon. George W. Wakefield, Judge. Action in equity to enjoin the collection of certain taxes, and- to recover taxes paid. A demurrer to the petition was sustained, and judgment was rendered i:n favor of the defendant® for costs. The plaintiff appeals.

<p>Negligence:, railroad. In an action for injuries received by plaintiff’s wife while driving in a buggy on a highway running near defendant’s tracks, through the negligent sounding of the whistle on defendant’s engine, whereby the horses became frightened, there was evidence that the engineer had sounded four blasts on the whistle when about forty or fifty rods from the team, and eighty rods from a crossing ahead, toward which.the team was making, and gave one blast for brakes when about five hundred feet from the team, and that the team was not excited thereby; that the team instead of making the crossing, turned into a field, near the track; that, when they were one hundred and twenty feet from the tracks, the engineer again sounded the whistle for a release of the brakes; and that, immediately thereafter, the team became unmanageable. Held, that the last sounding of the whistle, in view of the fact that former whistles had not frightened the team, was not negligence, unless, in the exercise of reasonable prudence, the engineer should have known that the sounding of the whistle at that time would have frightened them.</p>

— How. Z. A. Chúroh, Judge. Indictment for seduction. Verdict of guilty. Defendant sentenced to be imprisoned - in the istate penitentiary for the term, of eighteen months, and he ■appeals.

— Hon. B. McCoy, Judge. The defendant was indicted upon a charge of being an itinerant vender of drugs and medicine, intended for the treatment of 'diseases, and for advertising himself as a healer of disease, by the use of •drugs and nostrums, manipulations, and other expedients, the defendant not having a license a® such, as required by law.

<p>Appeal from Dallas District Court. — Hon. A. W. Wilkinson, Judge.</p> <p>Indictment for rape. V-erdict of guilty, and judgment thereon. The defendant appealed.</p>

— Hon. A. W. Wilkinson, Judge. ¡ The defendant was indicted, tried, and convicted of the crime of iseducing one Stella Arnold, and he appeals:

— Hon. Ben McCoy, Judge. The defendant and Lucy Young were jointly ■ehargedi by indictment with the crime of keeping a house of ill fame. The case was dismissed as to the defendant Lucy Young, and the defendant Herbert Young was put on trial before a jury. A verdict of guilty was returned against him, and judgment of imprisonment in the penitentiary for the term of six months, and for costs entered thereon, from which he •appeals.

<p>Appeal from Lyon District Court. — Ron. J. F. Oliver, Judge.</p> <p>The defendant was indicted, tried and convicted of the crime of rape. Judgment was rendered against him that he be imprisoned in the penitentiary for fifteen years, from which he appeals.</p>

<p>Appeal from Calhoun District Court. — Hon. S. M. Weaver, Judge. ‘</p> <p>The defendant was indicted, tried, and convicted of the crime of murder in the second 'degree, and he appeals;</p>

<p>Appeal from Lee District Court. — Hon. J. M. Casey, Judge.</p> <p>John E. Craig is executor of the estate of Harrison Tucker, deceased. Appellant seeks to have seventy-five dollars and seventy-two cents due to her from said estate, declared to be a preferred debt. The ciase was submitted upon an agreed statement of facts, and the preference claimed- by plaintiff denied. The plaintiff appeals upon a certificate of the trial judge that the case involves .a question of law upon which it is deemed desirable to- have the opinion of the supreme court.</p>

<p>Jury Trial: waiver. A defendant being tried in the district court for a misdemeanor cannot waive trial by jury. Code, 4347.</p> <p>Kinne, J., dissents.</p>

<p>Appeal from Poweshiek District Court. — Hon. D. Ryan,. Judge.</p> <p>Defendant was indicted, tried, and convicted of tihie crime of keeping a liquor nuisance, and appeals.</p>

<p>Appeal from, Polk District Court. — Hon. W. F. Conrad, Judge.</p> <p>Indictment for robbery. Verdict of guilty, and j udgment thereon. The defendant appealed.</p>

<p>Appeal from Plymouth District Court. — PI on. Scott M. Ladd, Judge.</p> <p>The defemdiamt Atlee Hart wag jointly indicted with J. L. Lewis upon a charge of maliciously and feloniously threatening to accuse Daniel T. Gilman find D. T. Hedges of the crime of adultery, with the intention to -extort friom said Gilman and' Hedge® a large sum •of money, to)-wit, the -sum of One thousand two hundred dollars. The indictment was found and- presented in Woodbury county. The defendant Hart demanded a •separate trial, and on his application the venue was changed to Plymouth county, where he was tried and convicted, and the caise is here upon hi® appeal from the sentence or judgment pronounced upon a verdict of guilty.</p>

— Hon. N. Wb. Macy, Judge. Defendant was indicted, tried, and convicted of the crime of receiving stolen goods, and sentenced to-three years in the state penitentiary. He appeals.—

<p>Appeal from Polk District Court. — Hon. W. F. Conrad, Judge.</p> <p>The defendant, Robert Callahan, was convicted of the crime of robbery, and from the judgment which required him to be imprisoned in the penitentiary in Fort Madison for the term of ten years, he appeals.—</p>

— Hon. W,A. Hoyt, Judge. The defendant was accused by indictment of the crime of nuisance, committed by maintaining a place for the keeping for sale and selling intoxicating liquors in violation of law. He was tried by the court without the aid of a jury, was found- guilty, and adjudged to pay a fine of three hundred dollars and costs. From that judgment he appeals.

<p>Exceptions. A widow who lives alone and has no family is not “tha head of a family” within the meaning of statutes allowing such head to hold certain personal property exempt. See note to Stultz v. Sale (Ky.) 13 L. R. A. 143.</p>

<p>Plea and Proof. An allegation that defendant “had notice” admits proof of either actual or constructive notice.</p> <p>2 Evidence: municipal corporations. Evidence of the condition of a walk a year before an accident caused by a defect therein, is admissible to show its actual condition at the time of the accident, and that it has been in a defective and dangerous condition for such a length of time as to charge the city with notice thereof, in connection with evidence that its condition has not been substantially altered in the interval. .</p> <p>2 Same. Evidence that persons were seen to stumble at the defective part of a walk, and that one person was seen to stop and push the broken board down with his cane, before the accident in question, is admissible to show the condition of the walk at the time of the accident, in connection with other evidence showing that there has been no substantial change in the interval.</p> <p>1 Harmless error. The overruling of objections to questions is not prejudicial where several witnesses, including one for the objecting party, testify without objection to the same effect as the answer elicited by such questions.</p>

<p>1 2 3 Burden of Proof: warranty. A heating apparatus was sold with warranty. Part of the price was to be paid when the job was completed, and the balance was to be paid the following spring “providing said apparatus works in accordance with guaranty.” The part payment was made. It was put in so early that it could not well be used at once. The seller sued to recover the deferred payment. Held, the burden was upon the buyer to plead and prove the warranty was broken. Wernli v. Collins, 87 Iowa, 549; Jackson v. Creswell, 94 Iowa, 713; Elliott v. Caldwell, 45 N. W. Rep. 845, and Bell v. Harvey, 14 N. W. Rep. 699, distinguished.</p> <p>4 Rescission: warranty. One who seeks to recover the purchase price paid on account of a breach of warranty must show a return or offer to return. Therefore, it was error to charge that it could be recovered back if an apparatus did not work according to warranty, without fault on the buyer’s part.</p>

<p>Nuisance. Where a rendering establishment is so conducted for reasons inhering in the nature of the work as to become injurious and offensive to those living adjacent, they may enjoin its further maintenance though the general public is affected in the same manner as said private plaintiffs. Code, 3331.</p>

<p>Appeal from Union District Court. — Hon. W. H. Tedeord, Judge.</p> <p>On May ,22, 1894, plaintiff brought this action in equity to enjoin the defendant sheriff from making a sheriff’s deed for certain real estate to the defendant Carter, and to declare that the judgment upon which the sheriff sold the property is not a lien thereon. Decree was entered in favor of the plaintiff, from which ,the defendants appeal.</p>

<p>Appeal from Davis District Court. — Hon. H. C. Traverse, Judge.</p> <p>On April 5, 1894, plaintiff filed an account, duly verified, claiming of the defendants three hundred and sixty dollars for nine hundred bushels of corn “from ■crop of 1890,” less fifty-six dollars credited for money paid. ' Defendant answered denying any indebtedness; and alleging that on November 21, 1891, plaintiff had filed her final report and petition for discharge; that at the February term, 1892, said report was approved, and plaintiff discharged, as shown by the order of the court set out; wherefore he avers that the administration of the affairs of said estate were adjudicated and forever closed, and asks that this proceeding go no further, and that said claim be dismissed. Plaintiff, in reply, admits that she filed a final report, and was discharged, as alleged, but says said estate was not fully settled, for that this claim was not included, and never has been settled. She avers that on March 14, 1894, “the estate of said H. C. Jordan was reopened, -the order of final discharge set aside, and this plaintiff was empowered to proceed as administratrix of said estate upon filing a new bond in the sum of $600.” She alleges that she filed the bond, took out new letters, and in all respects complied with the law and order of the court. Her petition and the order of the court thereon are set out as exhibits to the reply. Defendant demurred to the reply upon ground® in substance as follows: That the facts alleged in the reply are no defense to, and do not avoid, the defense pleaded in the affirmative allegations of the answer; that said reply shows that long prior to making said, order of March 14,1894, the estate of H. C. Jordan, deceased, had been fully administered upon, adjudged legally closed, and the administratrix discharged, wherefore the court had no jurisdiction to make said order of March 14, 1895. This demurrer was sustained, and, plaintiff electing to stand upon her reply, judgment was entered against her, from which she appeals.</p>

<p>.Practice in the Supreme Court: abstract. When the abstract does not assert that it contains all the evidence, the sufficiency of the evidence and whether instructions were applicable and sufficiently full cannot be determined on appeal, though the certificate of the reporter to the shorthand report and the bill of exceptions were set out.</p>

<p>Practice Supreme Court: certificate. This court will not pass upon a certificate when the question submitted can be determined only by sifting an agreed statement' of facts covering three pages of the abstract.</p>

Appealfrom Union District Court. — Hon. H. M. Towner, Judge. Action for the wrongful levy of an attachment. The court directed a verdict for the defendants, and the plaintiff appealed.

— -Hon. J. J. Tol-LERTON, Judge.' Indictment for propelling a steam engine on the highway without haying a competent man in front, and in not stopping- said engine as by law required. Verdict of guilty and judgment thereon. The defendants appealed.

— Hon. H. C. Traverse, Judge. Appellants’ abstract shows that on August 16, 1894, plaintiff filed a petition alleging, in substance, as follows: That about September, 1888, Banks M. Winton died intestate, leaving Nellie M. Winton, his widow, and Charles, Jessie, and Ralph Winton, minors, his only children, surviving him.

— Hon. W. D. Tisdale, Judge. Action at law upon a contract made by defendant through its secretary, S. W. Johnson. Defense, want of authority in the secretary to make the contract, and a claim that the instrument is not an absolute promise to pay a sum certain, but when construed with the articles of incorporation and by-laws of the defendant company, amounted to no more than a promise to pay the amount realized from the assessments made upon the members of the association.

— Hon. Henry Bank, Jr., Judge. Action at law, aided by attachment, upon an open account for goods sold and delivered.

— Hon. H. E, Deemed, Judge. The defendant was indicted for the crime of perjury, was convicted, and adjudged to be confined in the penitentiary for the term of three years. He appeals.

<p>Appeal from Polk District Court. — Hon. W. A. Spurrier, Judge.</p> <p>Action on a bond. Judgment against the defendants. The defendant Hoffman appeals.</p>

— Hon. C. M. Wateeman, Judge. Action at law upon a policy of accident insurance.. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. Lot-Thomas, Judge. Action at law to recover damages for a personal injury. From a judgment on a verdict for the plaintiff, the defendant appeals.

<p>Appeal from Carroll District Court. — Hon. C. D. Goldsmith, Judge.</p>

<p>1 3 4 Alteration of Note: good faith buyer. Where a blank left in a note-is, after delivery, fraudulently filled so as to provide for the payment of interest, the note is void in all hands, unless some negligence of the maker appear.</p> <p>2 Jury Question. Where there is evidence that circumstances existed which ought to have put the buyer of a note on inquiry and other-evidence that the note was bought for value, without notice and before maturity, the question whether the purchase was in good-faith was for the jury.</p>

— Hon. John J. Net, Judge. These cases were submitted together, and ¿m opinion filed at the October, 1894, term. A rehearing was granted on defendant’s petition, and the cases are again submitted together. The petitions in each case were- in two counts.

<p>Appeal from Palo Alto District Court. — Hon. George H. Carr, Judge.</p>

— Hon. S. F. Balliet, Judge. Indictment for murder. There was a verdict of guilty, and a judgment imposing the death penalty. The defendant appealed.

— Hon. H. C. Traverse, Judge. Action in equity to recsver an amount due for building materials and to foreclose a mechanic’s lien. There was a hearing on the merits, and a judgment for the defendants. The plaintiff appeals.

— Hon. L. O. Hatch, Judge. Action at law on a guardian’s bond, to recover an amount alleged to be due from the principal. There •was a trial by the court without a jury, and a judgment for the plaintiff, from which the defendants H. P. Lane and Anna A. Lane appealed. Proceedings were afterwards had in the district court for the correction of the record, which resulted in an order correcting it, and from that order the same defendants appeal.

— Hon. A, W. Wilkinson, Judge. The defendant was convicted of the crime of assault with intent to commit rape, and from the judgment which required him to be imprisoned in the penitentiary for a term of two years, he appeals.—

— Hon. G-eorge H. Carr, Judge. Action in equity to restrain the enforcement of a judgment by execution until the liability of the plaintiffs by virtue of certain garnishment proceedings is determined, and for other relief. Franklin Floete appeared in the action, and filed therein a petition in intervention. To that the defendants Elizabeth Sherbondy, Milt. H. Allen, C. D. Hendershott, and J. B. Lewis, sheriIf of Clay county, filed a demurrer, which was overruled.

— Hon. Lot Thomas, Judge. Suit in equity for the specific performance of a contract to sell real estate. From a decree for plaintiffs, defendant appeals.-—

— Hon. B. P. Birds all, Judge. Suit in equity to set aside and correct a decree rendered in a foreclosure proceeding in which the defendant herein was plaintiff and plaintiff was defendant, and for a new trial. The lower court sustained a demurrer to the plaintiff’s petition, and plaintiff appeals.

— Hon. D. E. Hind-man, Judge. Action on a promissory note. Trial to jury as to defendant Bangs. Verdict for plaintiff by direction of the court, and defendant Bangs appeals.

— :Hon. W. H. Tedeord, Judge. This action was commenced to recover judgment against the defendants upon three promissory notes executed by the defendant Spencer, and for the foreclosure of a chattel mortgage given by Spencer to secure the payment of the notes.

— Hon. George W. Burnham, Judge. The defendant was indicted for the crime of rape, and was convicted of an assault with intent to commit rape. He appeals.

— Hon. (George W. Paine, Judge. Action on accounts for good® sold and delivered.. Judgment for the defendants, and the plaintiffs. appeal.

- — -Hon. W. A. Hoyt, Judge. Action at law to recover attorney’s fees.

— Hon. C. P. Holmes, Judge. Quo warranto to test tbe right of the defendant city to exercise corporate authority over certain territory added to- said city by legislative -enactment. Prior to 1890 the corporate limits of the city of Des Moines embraced eight square miles.

— Hon. J. M. Casey, Judge. Action upon a written contract to recover for-services as engineer and draftsman, and for money paid out and expended for defendants’ benefit. There-was a trial before the court, without a jury, and a judgment for the plaintiff. The defendant Diver-appeals.

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

— Hon. Walter I. Smith, Judge. This is a garnishment proceeding in which plaintiff is seeking to subject to the payment of a judgment he holds against defendant Sturm certain wages due Sturm from the railroad company. The lower court rendered judgment against the garnishee, and it appeals.

— Hon. D. P. Hindman, Judge. Plaintiff entitles this action as above, and asks-certain relief on behalf of H. L. Tiffany, insane, against the defendant Worthington, as guardian, and alleges as… Held: on appeal to this court, that the payment of said sums by Worthington, guardian, did not defeat the defendant’s appeal in that case. See 84 Iowa, 123 (50 N. W. Eep. 554).

— Hon. N. B. Hyatt, Judge. This is a suit in equity to quiet the plaintiff’s title to forty acres of land in Hamilton county. The defendant answered, denying that plaintiff had title to the property, and by way of cross bill he claimed that he was the owner, and he asked that his title be quieted as against the plaintiff. There was a decree for the plaintiff, and defendant appeals.

— Hon. H. E„ Deemer, Judge. Action in equity to rescind and cancel a certain contract for shares of the capital stock in the defendant company on the ground of fraud, and for judgment against the defendants for five thousand dollars paid for said stock, with interest. Defendants answered, in effect, denying generally the allegations of fraud and alleging a settlement whereby plaintiff is estopped from maintaining this action.

<p>Appeal from Marion District Court. — Hon. A. W. Wilkinson, Judge.</p> <p>Action for personal injuries. Judgment for plaintiff, and the defendant appealed.</p>

— Hon. L. E.. Fellows, Judge. Action in equity for a specific performance of a contract to convey certain real estate. Decree for intervener. Plaintiff appeals.

— Hon. J. L. Husted, Judge. This is a suit in equity to enjoin the defendants, who are officers of an alleged unincorporated society or voluntary association, from using the name of the “Grand Lodge of the Ancient Order of United Workmen of Iowa,” usually written and known as the “G. L. A. O. U. W. of Iowa;” to restrain them from trons1acting business, and from conducting a life insurance business upon the mutual assessment plan under that name; and for such other relief as…

— Hon. Charles D. Gtoldsmith, Judge. Action in equity to subject land to the payment of a judgment. There was a hearing on the merits, and a decree for the defendants. The plaintiff appeals.

— Hon. A. R. Dewey, Judge. This is a proceeding in equity for the interpretation of the will of John Stewart, deceased. From the decree rendered, a part of the defendants appeal.—

- — -Hon. P. W. Burr, Judge. Action against the defendant for the recovery of a balance claimed to be due for lumber furnished a contractor for the erection of a school house for defendant district. Demurrer to petition sustained, and plaintiffs appeal.

— Hon. Soott M. Ladd, Judge. This is a proceeding to establish and fix certain disputed corners and lines separating the lands owned by the parties to the suit, under the provisions of McClain’s Code, sections 4507-4510.

■Appeal from Page District Court. — Hon. W. S. Lewis, Judge. Action ini equity to recover judgment on four promissory notes, and for decree foreclosing a chattel mortgage on one Aultman-Taylor threshing machine, given to secure said notes.

— Hon. H. Bank, Jr., Judge. Action to foreclose a mortgage securing certain bonds. There was a decree for plaintiff, and a sale of the property. From an order of the court refusing to set aside the sale and grant another, the plaintiff and interveners appealed.

— Hon. J. J. Hey, Judge. This case involves the right of subcontractors to mechanics’ liens upon a dwelling house which defendant Hopkins, as contractor, built for the defendants Ellen H. Ballou and F. B. Ballou. In addition to the plaintiffs there were several other subcontractors who claimed liens. These claimants are E. Kline, G. F. ■Grane, L. M. Stevens, I. R. Preble, M. V. Iliff, and J. C. Primus. All of the subcontractors commenced actions to establish their liens.

— Hon. A. Van Wagenen, Judge. On tiie first day of August, 1893, the plaintiffs filed an application for an order to require the garnishee to account for moneys received.

— Hon. N. W. Macy, Judge. Action at law to recover damages 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 the plaintiff. The defendant appeals.—

— Hon. Frank R. G-aynor, Judge. Action at law to recover damages for injuries sustained by plaintiff, growing out of a fall upon a sidewalk in tbe defendant town, which the defendant negligently and carelessly allowed to become rotten and out of repair. Verdict and judgment for plaintiff and defendant appeals.

— Hon. John R. Caldwell, Judge. Action in equity to recover judgment against the defendants on one promissory note executed by them for eight hundred dollars, with interest at six per cent., payable to the order of Martin Turney one year after date, and dated April-, 1893; also, for decree foreclosing a mortgage upon real estate executed by the defendants to secure the payment of said note.

— Hon. D. R. Hind-man, Judge. This action was brought to recover three hundred •dollars as compensation to the plaintiffs for selling a farm for the defendant. There was a trial by jury, and a verdict for the defendant. Plaintiffs filed a motion for a new trial, which motion was sustained, and defendant appeals.

<p>Mental Incapacity: evidence. Conflicting evidence reviewed and held to warrant a finding that a husband was of sound mind when he made a deed of trust to his mother-in-law for the benefit of his wife.</p>

<p>, Appeal from Cherokee District Court. — Hon. Gr. W. Wakefield, Judge.</p> <p>Action for personal injuries. Judgment for plaintiff, and defendant appeals .-</p>

— Hon. Scott M. Ladd, Judge. Plaintiff brings this action to charge the defendants as indorsers of two promissory notes executed to them by one F. M. Bisbee, and indorsed by them before maturity to the Hartley State Bank, by indorsement as follows: “Pay Hartley State Bank or order.

— Hon. S. M. Ladd, Judge. Suit in equity to quiet title to certain lands in O’Brien county. The plaintiff is the holder of a tax deed to the lands in dispute, issued to him by the treasurer of the county in the year 1875.

— Hon. W. A. Hoyt and L. E. Fellows, Judges. i Suit in equity to enjoin the defendant from trespassing on certain real estate. A .temporary injunction was allowed. A motion was made to dissolve •the injunction, which motion was overruled. Later on, another motion to dissolve was presented, and this last motion was stricken from the files on motion of the plaintiff. Defendant appeals.

— Hon. J. H. Henderson, Judge. The defendant, .F. P. Cooper, was convicted of the crime of obtaining property by false pretenses, and from the judgment, which provided foor his imprisonment in the penitentiary ait Fit. Madison for a term of eighteen months he appeals.

<p>Appeal from Mahaska District Gourt. — Hon. D. Ryan, Judge.</p> <p>Action to recover for personal injuries sustained by the plaintiff while -in the employment of the defendant as brakeman' on a freight (train, land while engaged in coupling oars, because of certain 'alleged negligence on the part of the defendant. The defendant answered, denying generally, and the cause was tried ■to a jury. At the 'Conclusion- of the evidence for the plaintiff, the defendant moved for a verdict, which motion was- sustained, and to which plaintiff excepted. Plaintiff 'appeals.</p>

<p>Appeal front Warren District Court. — Hon. J. H. Applegate, Judge.</p> <p>The plaintiff, a firm doing a private banking business, brought ¡this action iin equity to recover ome hundred and fifty-five doiluns, with interest upon a promissory note alleged to toe lost or destroyed, and to foreclose a chattel mortgage given to secure the same. Plain/tiff alleges that it 'is the owner of said mote and mortgage, 'and that said note is due and unpaid. The defendant answered, admitting the execution of said note and mortgage, hut denying that he Is indebted Ithereom, denying that the same, is lost or destroyed, or that 'the plaintiff is 'the owner 'thereof, 'or has any interest ■therein, and alleging that the same was fully paid to the plaintiff. 'He alleges by way of cross claim that in the year 1890-ihe paid 'to 'the plaintiff one hundred dollars, to be credited on a note for Six 'hundred and twenty-five dollars, which the plaintiff then held against him; that plaintiff failed to credit said amount on said note, «amid falsely and fraudulently stated to defendant that said amount had been credited oin the note in -suit Which had been ■lost, knowing that said note had not been tost, but was fully paid, and delivered to 'the defendant; that by said false statements defendant was pursuaded to. pay to plaintiff one hundred dollars more 'than was due; wherefore he prays judgment against the plaintiff for one hundred dollars, with interest. Plaintiff, in reply, denies that ithe note iim suit has beeu paid, denies 'the allegations of false and fraudulent representations, 'and denies that plaintiff made on overpayment of one hundred dollars, <or of -any other sum. The case was tried to the -court, and judgment and decree entered to favor of -the plaintiff. Defendant appeals.</p>

— Hon. S. P. Baddiet, Judge. The ¡defendant was indicted, -tried, land convicted of the crime of murder in ¡the first degree, and 'he appeals.

— Hon. Fred O’Donnell, Judge. Proceeding to set aside the probate of and to annul the will of Phoebe H. Harris, deceased.. The court directed a verdict for the defendants, and 'the plaintiff appealed.

<p>Appeal from Des Moines District Court. — Hon. James D. Smyths,. Judge.</p>

<p>Appeal from, Webster District Court. — Hon. D. R. Hindman, Judge.</p>

— Hon. E. E. Cooley, Judge. Plaintiff .stated' ae his cause of action' that on December 21, 1892, he w>as the owner of four horses, one iset of harness, one lumber wagon, one pair of bobsleighs, and one road cart, ail of the value of four hundred' and twenty-four dollars; that on that day defendant took possession of said property, and wrongfully converted the same to his benefit, and that on 'that day plaintiff demanded said property from the defendant, who refused to give…

— Hon. A. K. Dewey, Judge. Action for fraud, to toe sale of a patent of or an improvement •to a hydrocarbon burner, for toe state of Missouri, toe sale being for one-half interest (therein. Judgment for plaintiff, and toe defendant appealed.—

<p>Appeal from Hamilton District Court. — Hon. D. R. Hindman, Judge.</p> <p>Plaintiff stated as- ’his cause of action that on or about the -day of May, 1889, he entered into a verbal 'Contract with the defendant for the erection of one hundred and fifty mites in length of fence on the .line of Its road 'between Fort Dodge and Waterloo and from Waterloo to Lyle, (he to furnish alii fools and men necessary to do the work, and defendant to -furnish all material, said work to be commenced by the fifteenth of June, 1889, and completed before January 1, 1890; that plaintiff was -to receive therefor thirteen cents per post or panel; that plaintiff purchased a large •number of tools, employed and hoarded men, and incurred other expenses, preparatory to commencing said work, and was fully prepared and equipped, and ready to perform said contract; that the defendant, Without canse or justification, refused him said contract, 'and would not allow him to go to work on the same; that he used efforts to obtain other employment during the season of 1889, but was unable to make the loss good; that by-reason of the refusal of the defendant to fulfill said contract he is damaged in the sum of three thousand dollars which he asks to recover. The defendant answered, denying each and .every of said allegations, and alleging -in substance as follows: That -about the twentieth of June, 1889, the defendant -offered to enter into a contract with plaintiff -for said work, or any part thereof, and 'that -afterward, on- the ninth day of July, 1889, the plaintiff entered Into a eon-tract in- writing with the defendant to do a certain part of said work, namely, from Waterloo to Lyle; wheref ore plaint iff is estopped from maintaining this action. Defendant denies -that any other than sa-id written contract w-as ever entered tato. The case was tried to a jury, and .& verdict and judgment for five hundred -dollars rendered in favor of the plaintiff. Defendant appeals.</p>

— Hon. P. W. Burr, Judge. Action to recover six hundred and eight dollars and seventy-two cents, balance alleged to be due for flour furnished by the (plaintiff to be sold on commission, and sold. The defendant answered, denying generally, and the case was tried to a jury. Verdict and judgment were rendered ;in favor of defendant. Plaintiff appeals.

éppeal from Appanoose District Court. — Hon. H. C. Trívers, Judge. This is a suit in equity to redeem real estate from a sale made in pursuance of the foreclosure of a mortgage. There was a decree in the court below for the plaintiff, and defendant apeals.

<p>Appeal from Plymouth District Gourt. — Hon. F E. Gaynor, Judge.</p>

■Appeal from Jones District Court.— Hon. James D. Gieeen, Judge. Action in equity for the Interpretation of a will and an ante-nuptial contract. The district court rendered a decree from which appeals were taken by all of the parties to the action. The result is shown in the final opinion reported in 87 Iowa, 286 (54 N. W. Rep. 215).

— Hon. J. H. Applegate, Judge. Action of replevin to recover certain goods and 'merchandise. Trial by jury. Verdict and judgment for plaintiff. Defendant app eals.