Volume 97 — Iowa Reports

— Hon. George H. Carr, Judge. Action to enforce specific performance of a contract for the sale of land. Judgment for the defendant Osgood, and the plaintiff and the other defendants appealed.

— Hon. H. M. Towner, Judge. Action for damages arising from a breach of warranty in a deed. Decree for plaintiff, and defendants Oarmean appeal.

— Hon. S. M. Weaver, Judge. Action to recover upon a policy of insurance against loss by fire. Issues were joined, and the case tried to a jury. At the conclusion of the evidence for plaintiff, defendant moved for a verdict, which motion was overruled; and, the defendant electing to stand on said motion, no further evidence was offered.

— Hon. Charles D. Goldsmith, Judge. Action at law to recover, the possession of books . of account and accounts. A demurrer to the petition was. sustained, and, the plaintiff having refused to plead further, judgment was rendered in favor of the defendant. The plaintiff appeals.

— Hon. P. W. Burr, Judge. Action upon an accepted bill of exchange. Trial by the court, without a jury, and judgment for the plaintiffs. Defendants appeal.

— Hon. S. M. Weaver, Judge. The plaintiff is the wife of N. J. Khutasel, who is a judgment debtor of the Citizens’ State Bank. The defendant, as sheriff, by virtue of an execution, seized some hogs as the property of N. J. Rhutasel. Plaintiff brought replevin for the hogs as the owner thereof, a,ud by virtue of a writ the coroner took the hogs from the defendant, and delivered them to the plaintiff.

<p>Appeal from Polk District Court. — Hon. C. P. Holmes, Judge.</p>

— Hon. W. S. Lewis, Judge. Action at law upon a contract of guaranty executed by appellee, Graves. The case was tried to the court without a jury, and judgment was rendered dismissing plaintiff’s petition. Plaintiff appeals,—

— Hon. N. Wo Macy, Judge. Action at law to recover damages for a personal injury. Trial by jury. Verdict and judgment for the plaintiff, and defendant appeals.

— Hon. Frank R. Gtaynor, Judge. Suit in equity to partition or sell certain real estate, in which plaintiff claims to have a life estate in virtue of the terms of a certain will executed by one Sarah Smith during her lifetime. The defendants demurred to the petition. The demurrer was sustained, and plaintiff appeals.

— Hon. B. P. Birdsall, Judge. The defendant was indicted for and convicted of a liquor nuisance, was sentenced to pay a fine and appeals.

— ■Hon. Walter I. Smith, Judge. This is a proceeding by motion to set aside a judgment, and a sheriff!s sale made thereunder. From the order of the district court overruling the motion, the defendant appeals.

— Hon. P. R. Gaynor, Judge. Action to recover the amount of certain assessments on real estate sold by the defendant to the plaintiff. The cause was tried as in equity, and a judgment was rendered in favor of the plaintiff for four hundred and sixteen dollars and eight cents, and costs. The defendant appeals.

— Hon. M. J. Wade, Judge. This is a suit in equity to quiet the plaintiff’s title to certain real estate. The defendant Emily L. Rieckhoff filed an answer and cross petition in which she claimed to be the owner of two-fifths of the property, and she demanded a partition of the same. There was full hearing on the merits, and a decree was entered for the plaintiff, as prayed in the petition. Defendant Emily L. Rieckhoff appeals.

J. H. Applegate, Judge. Action at law to recover from defendants the amount of a certain check issued by defendant Sisson, upon the Exchange Bank of Earlham, to one J. C. Hill, and by Hill indorsed and assigned to the plaintiff: Trial to a jury, verdict and judgment for defendants except J. C. Hill, and plaintiff and defendant J. 0. Hill appeal. —

— Hon S. M. Weaver, Judge. The defendants, other than George H. King, are John F. Scott, 0. F. Dorrance, and some seven others. In 1890 the defendant King entered into a written contract with Franklin county, Iowa, to erect in said county a court house, for the agreed price of forty thousand dollars, the said King to furnish the labor and materials therefor. The contract contained specifications as to the construction and the payments to be made.

<p>Statute of Limitations: fraud. Where an administratrix knew that her intestate was killed while in defendant’s employ, the running of limitations against the claim for damages was not interrupted by defendant’s representations that it was in no manner to blame for deceased’s death, nor by its concealment of the facts concerning the accident which caused his death.</p>

<p>Appeal from Tama District Court. — Hon. John R. Caldwell, Judge.</p> <p>Proceeding for the construction of a will. Judgment, from which the plaintiffs appeal.</p>

<p>1 Evidence. The petitions, notices, writs, and returns, in actions instituted against a judgment debtor by other parties, are not admissible in evidence against a garnishee who claims the property by virtue of possession taken under a mortgage to him, recorded before either of the actions were commenced, for the purpose of' showing the alleged motive with which such mortgage was recorded.</p> <p>4 3 Jury question. In a proceeding to charge defendant garnishee with certain property alleged to belong to defendant’s debtors, it appeared that the garnishee received from his co-defendants, a mortgage on their stock of goods; that the garnishee stood in intimate relation to co-defendants; and that the mortgage.was not recorded until he learned that a claim was about tó be prosecuted against them. Meld, that the question whether there was an agreement not to record the mortgage was for the jury. The doctrine of scintilla of evidence as laid down in Meyer v. Mouek, 85 Iowa, 319, applies to the duty of the trial court and not to the supreme court.</p> <p>2 3 Construction: instructions. An instruction that if a mortgage under which garnishee claimed garnished property was not recorded, through oversight, and not kept from record pursuant to an understanding between the garnishee and the judgment debtor that it should not be recorded, with intent thereby to preserve the credit of the judgment debtor, then the verdict should be for the defendant, is not erroneous as easting the burden of proving the validity of the mortgage on the garnishee, where the rule as to the burden of proof was covered in another instruction.</p> <p>Kinne, J., took no part.</p>

<p>1 Deed as Mortgage: Evidence. A sheriff’s deed on foreclosure will not be construed to be an equitable mortgage, even though the grantee agreed that the foreclosed parties could redeem by paying the amount due, with interest, where they continued in possession for nine years under leases, by which they agreed to pay money rent for the land, during which they made charges for improvements to the land, such leases containing nothing from which could be inferred any claim of equitable ownership, by them, to the land</p> <p>2 Same. A deed absolute on its face will be construed to be a morfcgage, only, on the most clear and satisfactory proof that it was intended by the parties as security for the payment for money, the courts in such cases not being limited to the instrument itself, but looking to the whole circumstances of the transaction.</p>

<p>Appeal from Woodbury District Court. — -Son. A. Van Wagenen, Judge.</p> <p>Action at law on a bond given by an insurance agent to secure the faithful performance of his duties. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiff appeals.</p>

<p>Appeal from Woodbury District Court. — Hon. Scott M. Ladd, Judge.</p> <p>Action at law to recover an amount alleged to be due for an excavation made for the defendant. There was a trial by jury, and a verdict and judgment for the plaintiffs. The defendant appeals.</p>

<p>3 Partnership: One partner may execute, in the firm name, a note in settlement of a debt on which the firm is liable.</p> <p>1 2 Same. The dissolution of a partnership does not relieve one partner from liability on a note executed after dissolution, in the partnership name, by another partner, to a former customer, where no notice of the dissolution was given to that customer and no notice was published.</p>

<p>Construction Writing: warranty. A guaranty of a specific amount of water, to be furnished by waterworks, to be constructed for a town, is not modified by the fact that the town, for the information of bidders, in its specifications stated the depth and thickness of the water-bearing strata, with the requirement that the well * should be sunk to certain depth.</p>

— Hon. C. P. Holmes, Judge. Action at law to recover commissions for the sale of a threshing machine and engine.' A demurrer to the original petition, was sustained on the twentieth day of October, 1894, and plaintiffs were given fifteen days in which to further plead. On October 27, they filed an amended and substituted petition.

<p>Appeal from Polk District Court. — Hon. S. F. Balliett, Judge.</p> <p>Action to foreclose a mortgage, and for the appointment of a receiver. Judgment for plaintiff, and the defendants appealed.</p>

<p>Appeal from Polk District Court. — Hon. W. A. Spurrier, Judge.</p> <p>The plaintiffs are owners of lots abutting on West Locust street, in tbe city of Des Moines. Tbe defendants are members of tbe city council of said city, and the clerk thereof, and as such members, they constitute a board, for tbe assessment of property for public improvements, in said city. In June, 1894, tbe board of public works of said city, entered into a contract, with tbe Des Moines Brick Manufacturing Company, to pave West Locust street, from tbe east line of Tenth street, to tbe west line of tbe alley, in block 47, of J. Lyon’s addition, and to pay therefor one dollar and thirty-nine cents per square yard. Tbe street was paved, in pursuance of tbe contract, and tbe defendants, as tbe board of assessors, made tbe assessment for the improvement in two parts, by assessing the owners of lots from “east line of Tenth street, to one-half of Twelfth street,” at the rate of four dollars and seventy-seven cents per front foot, and from the one-half of Twelfth street, west, at the rate of three dollars and seven cents per front foot. The • petition shows that, because of this division iu making the assessment, there is assessed, east of Twelfth street, one dollar and seventy cents more per foot front than there is west of Twelfth street, and because of such proceeding it is said that the board has exceeded its jurisdiction, and is acting illegally, and a writ of certiorari is asked, which issued, and also an order restraining proceedings on the part of the board. The board made its return to the district court, showing that the contract for the paving was made, as alleged in the petition; that the assessment was in two parts, as therein alleged; that in making such assessments separate plats were filed with the city clerk; that the line of street included in the contract is “in fact, and substantially, two different streets,” having entirely different width between the curb lines; that said street, from West Tenth street to West Twelfth street is, in fact, forty-two feet between the curb lines, and west of Twelfth street, only thirty-four feet between the curb lines. The return shows other facts, not important to be noted. The cause was submitted on the petition return, a demurrer to the petition, and a motion to dissolve the injunction, or restraining order, and the district court sustained both the demurrer and motion, and dismissed the petition. The plaintiffs appealed.</p>

<p>1 Statute of Limitations. The statute of limitations does not begin to run against a cause of action for damages, arising from the construction of an approach to an embankment, in the rear of plaintiff’s property, until the approach is so far completed that it abuts thereon.</p> <p>2' Estoppel. One who, as a condition of a settlement of a claim against a railway company for damages to his property caused by an .embankment, requires the company to build an approach from his property thereto, cannot claim damages for the building of such approach where it was properly erected, though the building of the approach was but what the law required to be done.</p>

<p>Appeal from Lyon District Court. — Hon.- Scott M. Ladd, Judge.</p> <p>Action to recover the price paid for a harvester. Verdict and judgment for plaintiff. Defendant appeals.</p>

F. R. Gay nor, Judge. This is a proceeding to subject certain money alleged to belong to John M. Raymond, to the payment of a judgment against him in favor of the plaintiff. The money is in the hands of John W. Woods & Sons, and they were garnished, and the matter was tried upon the answer of the garnishees, and upon the claims of the other creditors of Raymond, who intervened in the action.

— Hon. George W. Wakefield, Judge. This is a certiorari proceeding, for the review of the action of the council of the incorporated town of Boyden, in extending a street across the depot grounds of the plaintiff. There was a trial on the merits, and a judgment dismissing the petition. The plaintiff appeals.

<p>Appeal from Tama District Court. — Hon. John E. Caldwell, Judge.</p> <p>Action at law to recover compensation for services alleged to have been rendered in securing a purchaser for real estate. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiff appeals.</p>

— Hon. J. H. Preston, Judge. Action at law to recover from the defendant the amount of a promissory note executed by his wife prior to her death, and upon account for work and labor performed by plaintiff at defendant’s instance and request. Trial to a .jury. Verdict and judgment for plaintiff, and defendant appeals.

— -Hon. Charles D. Goldsmith, Judge. The defendant is a corporation duly organized under the laws of this state, and is engaged in the insurance of live stock. The plaintiff brought this action to recover for services rendered to the defendant as its agent. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.

— Hon. George W. Wakefield, Judge. Action in equity to enjoin the payment and for the cancellation of certain school-district bonds. Decree for plaintiffs, and the defendants appeal.-

<p>Assuming' Mortgage: payment. As between a mortgagor and one who, as part of the purchase price of the mortgaged land, assumes the payment of the mortgage, the mortgage is paid. Hence, one who buys from a grantee who in buying, treated a mortgage on the land bought as part consideration of the purchase, cannot, upon paying the note secured by the mortgage and taking an assignment of it, compel the maker to pay it.</p>

— FIon. A. W. Wilkinson, Judge. Action at law to recover from defendant the amount of a certain check issued to plaintiff by one W. F. Smith, and which it is claimed the defendant promised and agreed to pay. The defense is practically a general denial. The court, on motion, transferred the case to the equity docket, and plaintiff appeals.

— Hon. W. D. Tisdale, Judge. Proceedings for the probate of the will, with objections on the ground of undue influence, and that the testatrix was of unsound mind. The probate of the will was refused, and the proponent appealed.—

— Hon. A. Yan Wagenen, Judge. The defendants are husband and wife. The wife is the owner of a homestead. The plaintiffs in this action are creditors of the husband, and they seek to subject the homestead, to the extent of two thousand dollars and interest, to the payment of the husband’s debts.

— Hon. J. H. Apple-gate, Judge. Action in equity to recover from defendant, John Cheshire, the amount due on a promissory note made by him, and to foreclose alien claimed by the plaintiff on thirty shares of the capital stock of the defendant, the Warren County Bank, pledged to secure the payment of the note. There was a hearing on the merits, and a decree for the plaintiff. The Warren County Bank appeals.

— Hon. William Gr. Thompson, Judge. Action at law, aided by a landlord’s attachment, to recover an amount due as rent under a lease of real estate. A petition of intervention was filed, there was a trial by jury, and a verdict and judgment for plaintiffs. The interveners appeal.

— Hon. W. F. Conrad, Judge. Madison Young died in 1878, testate, and P. M. Casady became the administrator of his estate with the will annexed. One of the legatees was four years of age when Madison Young died, and, by the terms of the will, final distribution could not be made until such legatee attained his majority.

— Hon. J. H. Preston, Judge. Action to recover for money alleged to be due to the plaintiff, as an heir of George House, deceased. There was a trial by jury, and at the close of the introduction of the evidence in behalf of the plaintiff, the court, on motion of the defendant, * instructed the jury to return a verdict for the defendant. From a judgment on the verdict, the plaintiff appealed.

— Hon. T. M. Giberson, Judge: Action at law, upon a policy of insurance, issued by the defendant company,' upon the life of Matthew Goodwin. Trial to a jury. Yerdict and judgment for plaintiff, and defendant appeals.

<p>2 Taxation: notice. A notice of expiration of redemption from a sale of land for taxes, addressed to “Am. Ex. Bank,” in which name the land is assessed, complies with the Iowa statute, requiring the notice to be served on the person in whose name the land is taxed, although the full name of the owner is “American Exchange national Bank, of the city of New York.”</p> <p>3 Same. A recital in a tax deed that the certificate of the sale was assigned to a specified person and by him to the grantee in the deed, is, by the express provision for the Iowa Code, section 888 > presumptive evidence of the assignment.</p> <p>I Evidence. The possession of a certificate of sale of land for taxes, and the indorsement thereon of the name of the purchaser at the sale, are nrima faoie evidence of ownership by the possessor, under Iowa, Code, section 888, making such certificate assignable by indorsement.</p>

— Hon. D. R. Hindman, Judge. Suit in equity to quiet the title to certain lands, which were included in what is known as the “Des Moines River Land Grant.” The defendants pleaded the statute of limitations, and claim title by adverse possession. They also interposed a counterclaim, asking that the title be quieted in them.

— Hon. T. M. ' Gtberson, Judge. Action at law to recover the alleged contract price of a hot water boiler and heater, and for certain attachments thereto. There was a defense setting up a breach of warranty of the articles sold, and for damages on account thereof, as well as for damages for breach of warranty for another hot water boiler sold by the plaintiff to the defendants. There was a trial by. jury. Verdict and judgment for the defendants. Plaintiff appeals.

— Hon. B. P. Birdsall, Judge. Action in equity to have canceled a tax deed of real estate. There was a hearing on the merits, and a decree for the plaintiffs. The defendants appeal.—

— Hon. B. P. Wolfe, Judge. The plaintiff is the owner of lot 5, and the defendant, Margaret Davis, is the owner of lot 6, in block 14, in the city of Clinton, Iowa. These lots are contiguous, and the defendants have erected a stone wall, on the line between the lots, eighteen inches in thickness, so that one-half thereof, rests on the land of the plaintiff. This wall, to the height of the surface of the ground, was built in April, 1892, and it so remains to this time.

<p>Appeal from Johnson District Court. — Hon. S. H. Fair-all, Judge.</p> <p>Action on a promissory note. Trial to the court. Judgment for plaintiff. Defendants appeal.</p>

<p>Appeal from Calhoun District Court. — Hon. George W. Paine, Judge.</p> <p>Action on a policy of fire insurance. Judgment for plaintiff, and defendant appealed.</p>

— Hon. S. H. Fair-all, Judge.- Action in equity, for an accounting to recover any balance found to be due, and for general equitable relief. There was a hearing on the merits, and a decree for the defendants. The plaintiff appeals.—

S. F. Balliet, Judge. Action in equity, to set aside certain curbing and paying assessments, and the certificates issued thereon. Decree for defendants, and plaintiff appeals.

— Hon. M. J. Wade, Judge, The first entitled case, involving less than one hundred dollars, comes to us on the certificate of the trial judge, and the following are facts presented therein: “The plaintiff is, and for many years last past has been, a resident of the town of Tipton, Cedar county, Iowa. Since the year 1887, he has been operating a creamery in the town of Solon, Johnson county, Iowa.

— Hon. W. F. Conrad, Judge. Action at law to recover of, the defendants upon an account for services rendered. There was a trial by jury, and a verdict and judgment for the plaintiff The defendant, Anna C. Smith, appeals.

— Hon. Henry Bank, Jr., Judge. Action at law on an account, and to recover rent for the use of portions of a barn. There was a trial by the court without a jury, and a judgment for the plaintiff for the amount of his account. From that judgment he appeals.

- — Hon. M. J. Wade, Judge. Action at law upon a certificate of membership in the defendant company, issued to Martin L. Grimes, in which plaintiff is the beneficiary. The district court sustained a demurrer to the defendant’s answer, and defendant appeals.

<p>Judicial Sale: construction of statute. Code, section 3089, provides that if a purchaser on execution sale fails to pay his bid when demanded, the plaintiff may elect to proceed against him, or the sheriff "may treat the same as a nullity. On a sale with redemption, a bid of five hundred and twenty dollars was accepted for property worth eleven thousand dollars. The purchaser did not attempt to pay his bid for nearly thirty days after demand, and the plaintiff made no election to proceed against the purchaser, the sheriff then accepted the amount of the execution, and costs, and returned the execution satisfied. Held, a refusal to order the sheriff to make deed to the purchaser will be upheld.</p>

— Hon. C. P. Holmes, Judge. Action to recover for a personal injury. There was a demurrer to the petition, which was sustained,- and plaintiff appeals.

<p>Practice Supremo Court: waiver. An allegation in an answer in an action to recover personal property setting up fraud in a sale a reason why defendant should have possession, to the sufficiency of which no objection is made, will be taken as a defense, and a finding by the jury of such fraud, is conclusive on appeal, of the right of possession. See 96 Iowa, Í.</p> <p>On Re-hearing. This language should be construed as limited to the facts of this case.</p>

— Hon. James D. Gieein, Judge. Action in equity. The plaintiffs are physicians, and, as such, rendered professional services for and to Eliza A. Beam, about June, 1890, of the value of about seventy-six dollars. Mrs. Beam died testate, in August, 1890; and the defendant, Kurtz, was appointed administrator of her estate, with the will annexed, and duly qualified. The defendant, Charles E. Beam, is a son of Mrs. Beam, and a legatee in the will.

— Hon. W. A. Hoyt, Judge. Action to recover for the use and occupation of certain real estate, and for trespassing upon the same, and for obstructing streets and alleys adjacent to said property, to the damage to plaintiff. There was a trial by jury, verdict and judgment for the plaintiff, and defendant appeals.

<p>Appeal from Clinton District Court. — Hon. W. F. Brannan, Judge.</p> <p>We shall only set out such of the facts as may be necessary to a proper understanding of the questions presented and determined. November 21, 1882, the Mississippi Valley Spiritualist Association was incorporated as the Iowa Conference of Spiritualists, the name being afterwards changed to the Mississippi Valley Spiritual Association. This body will hereafter be referred to as the “Association.” The object of this corporation was stated to be the promotion of general intelligence, good morals, liberal sentiments, and the teaching of spiritualism, through its phenomena and philosophy. The usual officers were provided for. The corporation was authorized “to make contracts, acquire and transfer property, * * * and make by-laws and rules and regulations * * * for the management of its affairs, according to law.” There was no provision for issuing shares of stock, and none were issued. This corporation had contracted for the purchase of certain land, for the sum of two thousand, eight hundred dollars, to be used as a camping ground. It entered into the possession of said premises, and dedicated the same as the Mt. Pleasant Park, and began holding camp meetings thereon in 1883. In 1884, it was determined that, to accomplish the objects of the association, a stock company must be formed. Thereupon, in the spring of 1884, the Mt. Pleasant Park Stock Company was organized and incorporated. This corporation will hereafter be referred to as the “Stock Company.” The object of the stock company was, as an auxiliary of the association, to raise funds with which to purchase said park, and to improve the same, for the use of the association, and for other purposes which might afford a revenue to the company. The capital stock was limited to fifty thousand dollars, in shares of ten dollars each. Provision was made for the usual officers, and an executive board. Each stockholder was authorized to cast one vote for each share of stock, and it required two-thirds of the directors to constitute a quorum. It should be said that most of the time the offices in both corpora-1 tions were filled by the same persons. The association passed a resolution, authorizing its president and secretary to enter into a contract with the stock company, authorizing it to take title to the land, and requiring it, “as an auxiliary association,” to meet all the obligations of the association; to improve and furnish the grounds for the association, as it might determine, for its camp meetings. The resolution also provided, that “the • stock company, after paying all expenses each year of said camp meeting, may make a dividend of the balance of the funds raised, * * * unless the amount shall exceed eight per cent, on * * * money expended on said grounds, in which case, the balance exceeding eight per cent, shall be subject to the direction of the association;" also, that the association might, at any time thereafter, reimburse the stock company “for all money expended by them," and require the stock company to convey the park to said association. In pursuance of this resolution, which was passed early in 1884, as it afterwards appeared, the president and secretary of the association entered into a contract with, the stock company, which, in some respects, exceeded the authority given them, viz:, in authorizing the stock company, in a certain event, to sell the park, and in reimbursing the stockholders, by paying the amount of their stock, with interest thereon. It appears that this contract was never reported to the association for its approval, but in 1888, it discovered what had been done, and, at a meeting of both the stock company and association, the contract so made was modified, by eliminating the two provisions above referred to. Prior to this change in the contract, and in 1885, this stock company made an extraordinary effort to sell its stock; and, it is claimed, that in reliance upon said contract, as originally made, the plaintiff and others subscribed and paid for additional stock to pay for the park grounds, and a deed was taken in the name of the stock company. It appears, however, that the balance due for the park was paid, not by the stock company, but by the directors giving their notes, which obligations were finally paid in 1892, by the association, as a debt of the stock company. In 1891, committees were appointed by the two corporations to arrange for a transfer of the property to the association. They agreed upon a report, which was approved by the majority of the stockholders of the stock company, and by both corporations. That agreement was, in substance, that the association should assume all debts and liabilities of the two corporations, pay the debts, and, for the stock liability, the association should execute its notes to the stock company, or to the holder of any stock who desired to surrender his stock to the association, for the face value of the stock, and the association to receive a conveyance of the park. In pursuance of this arrangement, the officers of the stock company executed to the association a trust deed conveying the property to it, and subjecting said property to the same liability for all indebtedness of the stock company, and also to all claims of the stockholders, the notes for stock liability to be paid in five years, without interest. It was also provided that the notes should be liens upon the park until paid; that the title and interest of the stock company should not cease until all such liabilities were paid. This deed was unanimously approved and confirmed by the stock company. Plaintiff refused to take the notes of the association, and instituted this suit, in which he makes the two corporations, only, defendants. In his bill he seeks to recover the amount he has paid for stock, with interest thereon; asks for the appointment of a receiver, and for a sale of the land, and payment of his claim out of the proceeds. Against this claim the defendants urge (1) the invalidity of the original contract under which plaintiff claims; (2) acquiescence in, and ratification of the acts done, and which are now complained of; (B) that plaintiff has no right to sue in his own name. The court below dismissed plaintiff’s petition, and rendered a judgment against bim for the costs, and he appeals.</p>

<p>Appeal from Calhoun District Court. — Hon. Charles D. G-oldsmith, Judge.</p>

H. M. Towner, Judge. Dependant was jointly indicted with one Melville Philpot, his cousin, for the crime of rape. Melville was first tried, and acquitted. Defendant, upon his trial, was convicted of the crime of an assault with intent to commit rape, and was sentenced to the penitentiary for the term of five years. He appeals.—

<p>2 False Pretenses. Under Code, section 45, subdivisions 9 and 10, making the word 1 ‘property” embrace real and personal property, and including under personal property, “evidences of debt,” a nonnegotiable draft, drawn on an insurance company, by its authorized adjuster, in settlement of a claim, subject to the company’s approval, is “property,” within Code, section 4073, punishing any person who obtains money, goods, or property, by f alsepretenses, though such draft be never approved or accepted.</p> <p>1 Same. Misrepresentations by the insured, as to the age and soundness of horses, for the death of which a claim is made under a policy of insurance, may constitute false pretenses, within Iowa Code, section 4073, making it an offense for any person designedly, and by false pretenses, with intent to defraud, to obtain money or other property.</p>

<p>Appeal from Keokuk District 'Court. — How. A. R. Dewey, Judge.</p> <p>The defendant ^vas indicted for the murder of Walter Clark. There was a trial, which resulted in a verdict of guilty of murder in the second degree, and a judgment of imprisonment in the penitentiary for eighteen years. Defendant appeals.</p>

<p>Evidence: witness. The impeachment of a witness, by evidence of his bad character, does not absolutely destroy the credibility of the witness and his testimony, but the jury may consider it, if it is sustained by other corroborating evidence, or if, for any other reason they believe that he testified truly.</p>

— -Hon. John 0. Sherwin, Judge. The defendant was convicted on an indictment charging him with assault on Josephine Style, a female, with intent to commit a rape, on the fifteenth day of March, 1894. His motion for a new trial was overruled, and judgment entered against him, from which he appeals.

— Hon. A. N. Hobson, Judge. At the September term, 1898, the defendants were indicted for the crime of assault, with intent to commit murder. They were arraigned, and pleaded not guilty.

<p>Appeal from Pottawattamie District Court. — Hon. A. B. Thornell, Judge.</p> <p>Indictment for larceny. Verdict of guilty and a judgment thereon, from which the defendant appealed.</p>

— Hon. A. J. MoCrary, Judge. The defendant was convicted of the crime of robbery, and from the judgment, which required him to be imprisoned in the state penitentiary at Ft. Madison, at hard labor, for the term of three years, and to pay the costs, he appeals.

— -Hon. Soott M. Ladd, Judge.' The defendant was convicted of the crime of nuisance, committed by maintaining a place in which he kept for sale, and sold, intoxicating liquors, in violation of law. From the judgment, which required him to pay a fine and costs, he appeals.

— Hon. A. B. Thornell, Judge. The defendant was convicted of the crime of breaking and entering a building, with the intent to commit a public offense; and from the judgment, which required that he be imprisoned in the state penitentiary at Ft. Madison, at hard labor, for the term of one year, and pay the costs, he appeals.—

— Hon. W. I. Babb, Judge. This is a proceeding in • probate for an order requiring the defendant to pay taxes on certain real estate. From an order granted as prayed, the defendant appeals.

<p>Appeal from Cass District Court.- — Hon. Walter I. Smith, Judge.</p> <p>Indictment for fraudulent banking. Verdict of guilty, and judgment, from which the defendant appealed. —</p>

<p>Appeal from Warren District Court. — Hon. J. H. Apple-gate, Judge.</p> <p>Defendant was indicted, tried, and convicted of the crime of seduction, and he appeals.</p>

— Hon. A. B. Thor nell, Judge. The defendant was jointly indicted with William McLaughlin, Walter Case, Charles Jones, and William Mushrush for the crime of murder in the first degree, in the killing of one Frank H. Leib. This defendant was separately tried, and convicted of the crime of manslaughter, and judgment of imprisonment in the penitentiary for a term of five years entered against him, from which he appeals.

— Hon. P. W. Burr, Judge. - Indictment for burglary. Plea of not guilty. Jury trial. Verdict and judgment against tbe defendant, and he appeals.

— JIon. J. M. Casey, Judge. Action upon a written guaranty of payment indorsed on a promissory note. There was a trial to the court, without a jury, and a judgment was rendered for the defendant, for costs. Plaintiff appeals.

— Hon. T. M. Fee, Judge. This is an appeal from an order taxing costs which accrued in an action between the parties. The defendant appeals because the sum of one hundred and forty-five dollars, the cost of the shorthand reporter’s transcript of the evidence was taxed to her. The transcript was ordered and paid for by the plaintiff, the same being used in presenting an appeal to this court from a former trial in the district court.—

— Hon. M. J. Wade, Judge. Indictment for obstructing a public highway. Verdict of guilty, and a judgment, from which the defendant appealed.

— Hon. J. M. Casey, Judge. Action in equity for judgment on a note and the foreclosure of a mortgage'securing it. A decree was entered granting a portion of the relief asked by plaintiffs, and denying them other relief, from which they appeal.

— Hon. W. H. Ted-ford, Judge. Action in equity to set aside certain chattel mortgages as having been executed in fraud of creditors, or to decree them to constitute an assignment for the benefit of creditors. Decree dismissing plaintiffs’ bill at their costs, and establishing the lien of said mortgages in favor of the defendants. Plaintiffs appeal.—

— Hon. J. H. Applegate, Judge. Action of replevin to recover the possession of certain blasting powder from the defendant, Amos, Norman Haskins, receiver of the Black Diamond Coal and Mining Company, and M. M. Barr, a judgment creditor of the mining company, intervened. There was a trial to a jury, resulting in a verdict and judgment for the intervener, Barr, and plaintiff appeals.—

<p>6 Evidence. A surety counter-claimed for wrongful attachment, and also alleged that the debt for which he was surety had been released in consideration of a mortgage given by the principal debtor. Evidence was admitted that the surety had stated he was liable for a security debt and intended to make a conveyance in order to avoid it. There was no evidence that he knew of the execution of said mortgage when he made said statement. Held, it was proper to charge that such evidence bore only on whether the attachment was wrongfully issued and could not be considered on whether or not the alleged agreement to release had been made.</p> <p>1 3 Parol: Variance: recited consideration. The rule excluding parol evidence to vary the consideration, as fully stated in a written instrument, does not apply to third persons not parties to the written agreement, whose rights may be affected by the character of the consideration.</p> <p>7 Instruction Construed. A surety claimed a release because his prin cipal had given a mortgage to secure both the surety and other debts. The court charged that “plaintiff could not release any of the mortgaged property or appropriate it to any purpose other than the payment of the mortgage debt,” without releasing the surety to the extent of the value of property otherwise appropriated. Reid, this does not charge that the mortgaged property must be first appropriated to pay the surety debt.</p> <p>Wrongful Attachment: measure or damages. Evidence that an attachment debtor was prevented by the levying of the attachment from carrying out an arrangement for the purchase of property,and that he was prevented from sowing a crop thereon, is inadmissible on the question of the amount of damages for wrongfully suing out the attachment, as the damages which it seeks to establish are too remote and speculative.</p> <p>8 Practice: verdict construed. Plaintiff brought action on notes, aided by attachment. Certain defenses, as well as a counterclaim for wrongful suing out of the attachment, were interposed. There was a special finding that the attachment was wrongful and a general verdict for one dollar for defendant. Held, this is a general verdict against plaintiff on all the issues, defenses, and counter-claim, and the court was not authorized to enter judgment for plaintiff on the notes, after subtracting the dollar allowed defendant by the verdict, attorney’s fee due on account of the wrongful attachment, and part of the costs.</p> <p>4 5 Harmless error. The admission of incompetent evidence as to the damages resulting from a wrongful attachment and an erroneous charge as to exemplary damages, are harmless when it appears by the special and general verdict that nominal damages, only, . were allowed.</p>

— Hon. A. R. Dewey, Judge. This is an appeal from the decree of the district court, canceling and setting aside an assessment for taxation made upon the property of plaintiff, by the board of equalization of the city -of Newton.

— Hon. James D. Smythe, Judge. Plaintiff was injured by tbe fall of a scaffold erected by Ms immediate employer, in the construction of a certain brick building for the defendants, Unterkircher & Sons, in the city of Burlington, and he brought this action to recover damages, alleging that one Hummerum had the contract for doing the brick work, and defendant Hemphill for the carpenter work, all under the direction, supervision, and control of Unterkircher & Sons, or their…

— Hon. H. M, Towner, Judge. This is a proceeding in forcible detainer, by which the plaintiff seeks to obtain the possession of a farm of two hundred and forty acres. There was a demurrer to the petition, which was sustained, and judgment was entered for the defendants. Plaintiff appeals.—

— Hon. T. M. Giberson, Judge. Action to recover damages for personal injuries sustained by plaintiff’s minor son, Garfield Goodrich, alleged to have been caused, without fault or negligence on the part of said minor, and because of certain specified acts of negligence on the part of the defendant.

<p>Appeal from Van Burén District Court.- — Hon. W. I). Tisdale, Judge.</p>

— Hon. W. I. Babb, Judge. As originally commenced, this was an action at law, upon an injunction bond, made and executed in a certain suit, wherein defendants herein secured an injunction against the plaintiff, restraining him from selling coal in a particular locality, and to certain persons. ' The defendants filed an answer and a cross bill in equity, denying that the injunction was wrongfully sued out, and asking that they have in this action, a decree, permanently…

— Hon. H. E. Deehbr, Judge. This is an action at law, brought by.Jha,.plaintiff on a claim of his own, and as assignee of the claims of a number of other taxpayers of the city of Council Bluffs, to recover certain taxes which he, and they, paid to aid in the construction of a bridge over the Missouri river between the cities of Council Bluffs, Iowa, and Omaha, Neb. The facts and issues will appear in the opinion.

— Hon. A. W.' Wilkinson, Judge. December 2, 1892, plaintiff brought this action against Thomas J. Swan, to recover five thousand dollars, with interest, on a promissory note executed to plaintiff, October 8, 1890. Plaintiff caused an attachment to issue upon the ground that defendant, Thomas J. Swan, was a non-resident of the state, which attachment was levied upon one hundred and ten shares of the capital stock of the Warren County Bank, owned by said Swan.

<p>Appeal from Monroe District Court. — Hon. W. I. Babb, Judge.</p> <p>Action on a policy of fire insurance. Judgment for plaintiff, and the defendant appealed.</p>

— Hon. J. H. Applesate, Judge. Action at law to recover damages for the alleged violation of a written contract. There was a demurrer to the petition, which was sustained, and judgment was rendered for the defendant, for the costs of the action. Plaintiffs appeal.

— Hon. Fred O’Donnell, Judge. Defendant was held in jail to answer before the grand jury for the crime of larceny from a building in the nighttime. At the September term, 1895, he was brought before the grand jury for the purpose of exercising his right of challenge.

<p>Appeal from O’Brien District Court. — Hon. Scott M. Ladd, Judge.</p> <p>Quo warranto to test the right of the defendant to hold the office of mayor of the 'city of Sheldon. Judgment for the relator, and the defendant appealed.</p>

— Hon. H. C. Traverse, Judge. Action in equity to restrain the building of a schoolhouse. From an order of the district court granting a temporary injunction as prayed, the defendants appeal.

— Hon. A. W. Wilkinson, Judge. Action at law to recover the amount appearing to be due on a promissory note. An answer to the peti- • tion was filed, a demurrer thereto was sustained, and, the defendant refusing to plead further, judgment was rendered in favor of the plaintiff for the amount of the note and costs. The defendant appeals.

— Hon. J. H. Henderson, Judge. Action at law to recover for the alleged conversion of personal property. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— -Hon. P. B. Wolfe, Judge. Action in equity to quiet in the plaintiff, Isaac Baldwin, the title to certain real estate, and for general equitable relief. The defendant, Hill, and interveners, D. L. Ryder and Almira M. Ryder, ask that the title be quieted in Hill. There was a hearing on the merits, and a decree in favor of Hill. The plaintiffs appeal.

— Hon. C. M. Waterman, Judge. Application in probate for the allowance, in favor of the estate of the stepmother of the decedent, of a share in his estate. There was a hearing on the merits, which resulted in an order making the allowance asked, and directing its payment. From that order, the administrator of the estate and Josephine T. Brisbin, and William F. Parker, appeal.

<p>Practice Supreme Court. A statement contained in an amended abstract filed by appellee, that the abstract filed by appellant, and the one by appellee do not together contain all the evidence offered or received on the trial, will be taken as true, and the appeal dismissed, unless appellant files a further abstract, either in affirmance of the correctness of his original abstract, or in denial of appellee’s abstract; and such denial cannot be made in the argument.</p>

— Hon. B. P. Birdsall, Judge Suit in equity to enjoin defendant from maintaining obstructions in a certain alley in the town of Cambridge. Defense, adverse possession. The cause was tried to the court, and a decree' was entered as prayed. Defendant appeals.

— Hon. S. M. Weaver, Judge. Aotion at law to recover damages for personal injuries sustained by plaintiff, in an accident at a street crossing, in the town of Hampton. Trial to a jury. The court directed a verdict for defendant, and plaintiff appeals.

— Hon. B. P. Birds all, Judge. The plaintiff is a manufacturing firm, at Beloit, Wis. In November, 1892, the defendant firm, doing business at Ames, Iowa, gave to one Baldwin, a traveling salesman for plaintiff, a written order for agricultural implements, to be shipped to Ames, about February 14,1893. The amount of the order, after the deduction of the value of one plow, was two hundred and thirty-six dollars and twenty-five cents.

<p>Dower. A wife is entitled, to dower in land alienated by her husband, in the deed of which she did not join, according to the law in force at the time of such alienation, notwithstanding his death takes place after the passage of Iowa Code, 1873, section 2440, declaring estates of dower and courtesy abolished, and giving the surviving spouse a fee-simple interest in one-third of the estate of the deceased, as such act merely abolishes the use of the words “dower” and “courtesy,” as descriptive of the enlarged estate.</p>

— Hon. D. R. Hind-man, Judge. Action to recover a balance alleged to be due from tbe defendant to the plaintiff upon the sale of a quantity of jelly. There was a trial before the court, without a jury, and a judgment was entered for the defendant for costs. Plaintiff appeals.

— Hon. W. F. Brannan, Judge. Plaintiff brought this action at law to recover eight hundred dollars and interest, upon a policy of insurance against loss by fire, issued io him by the defendant.

— Hon. W. F. Bean-nan, Judge. Suit in equity to foreclose a mortgage given by defendants to plaintiff. The defendants pleaded a mistake in the note and mortgage, asked that the same be corrected to conform to the understanding of the parties, and that the suit be abated. Decree for plaintiff, and defendants appeal.

— Hon. C. D. Goldsmith, Judge. Plaintiff, the duly appointed receiver of the firm of Weil, Dreyfus & Co., brings this action to recover the possession of three certain boxes of general merchandise, of the value of seven hundred and ten dollars and fifty-nine cents, of which he alleges he is the absolute and unqualified owner, from the possession of the defendant sheriff.

— Hon. John C. Sherwin, Judge. This is a suit in- equity, by which the plaintiff demands that the board of supervisors of Cerro Gordo county be restrained and enjoined from enforcing a certain order, or resolution, of said board. There was a demurrer to the petition, which was sustained, and plaintiff appeals.

<p>1 Fraudulent Conveyance: homestead. The owner of a homestead may, as against creditors who have no lien upon it, convey it without consideration, and it is immaterial with what motive he conveys, and how much he is indebted.</p> <p>2 Practice: cross bell. Where, in an action to set aside a conveyanee as fraudulent, it appeared that there was a mistake in the description of the land, it was proper, on cross petition, to correct the description, in the decree declaring the conveyance valid.</p>

<p>Appeal from Clinton District Court. — Hon. A. J. House, Judge.</p> <p>Action on a note and for the foreclosure of a mortgage securing it. Decree for plaintiff, and the defendant Clinton county appeals.</p>

<p>Appeal from Winneshiek District Court. — Hon. A. N. Hobson, Judge.</p> <p>Suit in equity to foreclose a mortgage. Defense, statute of limitations and payment'of the note secured by the mortgage. Trial to the court, judgment and decree for plaintiffs as prayed, and defendants appeal.</p>

— Hon. D. R. Hind-man, Judge. Action to recover compensation for services in procuring a purchaser of a stock of goods. Judgment for plaintiff, and the defendant appealed.

<p>Appeal from Johnson District Court. — Hon. 8. H. Pair-all, Judge.</p> <p>Action in equity to cancel and set aside a deed of conveyance, on the grounds of fraud and undue influence and inadequacy of consideration, and for an accounting for rents and profits. Decree was entered in favor of the plaintiff. Defendant appeals.</p>

<p>Appeal from, Marshall District Court. — Hon. S. M. Weaver, Judge.</p> <p>Action for damages to ahorse.- Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.</p>

<p>1 3 Fraudulent Couveyauee: too may set aside. One who has recovered a judgment for a tort, may attack, as fraudulent, a conveyanee made by the judgment debtor, before the rendition of the judgment, where the tort was committed in whole or in part, prior to the conveyance.</p> <p>8 Res Adjudicata. Where the validity of a previous settlement was in issue in an action for damages, and was determined by the jury, it became res adjudieata, and cannot be relitigated in an action to subject lands to the payment of the judgment for damages.</p> <p>2-5-7 Evidence. Held to be sufficient to set aside conveyance.</p> <p>6 Husband and wife: Consideration. An advance by the wife to her husband, of money, at different times, part of which is used in the support of the family, without any promise by him of repayment, is not a valid consideration, as against creditors, for a conveyance to lier of tlie husband’s real property.</p> <p>4 Subsequent Creditors. A conveyance made with intent to hinder, delay, and defraud creditors, is invalid as to subsequent, as well as to antecedent creditors.</p>

<p>Corporation Stock: waiver of lien: Estoppel In an action, by a corporation, to enforce a lien on shares of its capital stock, under a by-law providing that no transfer of stock should be made when the registered holder is indebted to the company, defendant testified that he told officers of the plaintiff company, that he was about to make a loan on certain stock, and asked information as to its value, and that no claim of lien was then made. Plaintiff’s officers testified, that they had no recollection of any such disclosure The holder of the stock testified, that he told an officer of plaintiff, that he was about to pledge the stock, and that no lien was asserted at the time. The stock, so transferred, was presented to plaintiff, as notice of the transfer, and an indorsement made on the stubs in the stock-book, stating the stock was held by defendant as collateral. Held, that plaintiff was estopped from now claiming any lien under the by-law.</p> <p>Same. Where the holder of stock assigned the same to defendant as collateral, the corporation being notified thereof, but no actual transfer was made on the corporation books, and afterwards the stock was assigned to the corporation as security for the registered holder’s indebtedness, the corporation having had actual notice of the transfer to the defendant, cannot maintain a superior claim to the stock, on the ground that no transfer was formally made on the books, as required by a by-law providing that no transfer shall be valid unless so made.</p>

<p>Guaranty: merger. The guarantor of a first mortgage upon real property, is not liable thereon after its holder, who is also the holder of a second mortgage, has foreclosed such second mortgage and acquired a fee in the property.</p>

— Hon. A. W. Wilkinson, Judge. Action to quiet title. Decree for defendant, Mary E. Goodman, and plaintiff appeals. This action was brought by the plaintiff to quiet title to, and recover possession of a lot in the city of Perry.

— Hon. A. W. Wilkinson, Judge. The amount involved is less than one hundred dollars, and the case comes to us on the certificate of the trial judge. The action was commenced before a justice of the peace, where the plaintiff filed a petition asking to recover sixty-five dollars and eighty-three cents, on a statement of facts showing fraudulent representations, because of which plaintiff had accepted from defendant a less amount than was due him.

<p>Appeal from Keokuh District Court. — Hon. Ben McCoy, Judge.</p>

<p>2 Practice. Where a court, without objection, adopts a theory as the law of a case, it is error to exclude testimony, which is material under such la»w, whether the law made is correct or not. 1 Practice" Supreme Court. Misconduct of counsel will not be reviewed1 where it is denied in an additional abstract, and appellee does not reaffirm. If he does reaffirm, he must file transcript.</p>

<p>Appeal from Boom District Court. — Hon. S. M. Weaver, Judge.</p> <p>Action to recover damages, caused by a failure to deliver a telegram. Yerdict and judgment for defendant. Plaintiff appeals.</p>

— Hon. T. M. Fee, Judge. The defendants, other than Holmes, are the Farmers’ & Traders’ Bank, of Bonaparte, and F. T. Cramer. The facts, for the purposes of this appeal, may be somewhat abbreviated. The plaintiff sold to the defendant Holmes, eighty acres of land, for the agreed price of three thousand dollars. Of the agreed price, all except two hundred and thirty-eight dollars and fifty-four cents was to be applied to discharge liens on the land; and it has been so applied.

— Hon. B. P. Birds all, Judge. Action in equity to recover an amount alleged to be due the plantiffs for services rendered as architects, and to establish a mechanic’s lien therefor. There was a hearing on the merits, which resulted in the dismissing of the petition. The plaintiffs appeal.—

— Hon. J. L. Hus-ted, Judge. Proceeding in probate by the widow of the decedent for the allotment of her share in the estate. An answer to her application was filed, to which she demurred. The demurrer was overruled. She elected to stand upon it. Judgment dismissing her application at her cost, was rendered, and she appeals.—

— -Hon. M. J. Wade, Judge. Action in equity to recover certain real estate, and for general equitable relief. Certain of the defendants claim to own the land, and ask that the title thereto be quieted in them.. There was a hearing on the merits, and a decree for the defendants. The plaintiffs appeal.

— Hon. A. B. Thornell, Judge. Action at law to recover the possession of certain car loads of grain. The Citizens’ State Bank intervened in each case, and claimed to he the owner of the grain. By agreement of the parties the two actions were tried together, as one. After the evidence had been submitted, a motion for a verdict for the intervener in each case was sustained, and verdicts were returned, and judgments rendered in accordance with, that ruling.

<p>Practice — Evidence. Plea of guilty is not conclusive in subse* quent civil suit.</p>

<p>Appeal from O’Brien District Court. — Hon. Scott M. Ladd, Judge.</p>

<p>Appeal from Cedar Bapids Superior Court. — Hon. Thomas M. Giberson, Judge.</p> <p>Action on promissory notes. Trial to a jury, and verdict and judgment for plaintiffs. Defendants appeal.</p>

— Hon. W. F. Conrad, Judge. Action at law to recover on account of personal injuries 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.

<p>Appeal from Jones District Gourt — Hon. J. D. Giffen, Judge.</p> <p>This is a suit in equity, by which the plaintiff seeks to enjoin the defendant from maintaining a mill dam at such a height as to damage the property of the plaintiffs by back water. There was also a claim to recover for damages alleged to have been sustained. The defendant answered, denying chat the water in his dam was at a greater height than he had a right to maintain it. The case was fully heard on its merits, and a decree was entered dismissing the petition, and the plaintiffs appeal.</p>

<p>Appeal from Oseeold District Court. — Hon. George W. Wakefield, Judge.</p> <p>The defendant, with two others, was indicted for larceny. Defendant was tried, convicted, sentenced, and appeals.</p>

J. J. Tolerton, Judge. Action to recover damages for burning grass. Trial to a jury, verdict for defendant, and plaintiff appeals.

<p>Undenied additional abstract. Appeal dismissed.</p>

— Hon. B. P. BiRDSALL, Judge. This is an action at law upon an alleged verbal contract of insurance against the loss by fire of a grain elevator and grain stored therein, and machinery connected therewith. There was a trial by jury, which resulted in a verdict for the plaintiff. The defendant appeals from a judgment on the verdict.