Where a child, which had been awarded to the custo ly
of the father by a decree of divorce in the District Court, was placed in
the hands of the sheriff under an order of the circuit judge procured by
such parent, directing the sheriff to deliver the child into the custody
of a person residing in another county, held, that the district judge
had no jurisdiction to issue an order upon the application of the mother
enjoining the removal of the child from the county, and directing its
delivery by the sheriff to another person. Id.
See BOUNDARY LINE, 1.
HIGHWAY, 5.
PRACTICE, 22.
1. LEASE: SURRENDER OF. To constitute the surrender of a lease, which
will relieve the lessee from future liability for rent, the assent of the
lessor to such surrender is necessary. Facts considered which were held
not to show such assent. Martin v Stearns et al., 345.
- LIEN OF LANDLORD. Under section 2017 of the Code, a land-
lord has a lien upon all property of the tenant, not exempt from execu-
tion, used upon the leased premises, for the rent of the entire term of
the lease, and such lien attaches to the property as soon as brought
upon the premises. Id.
3. ASSIGNMENT OF LEASE: ATTACHMENT. The assignment of a lease of....
real estate is valid, and vests the assignee with all the rights of the
landlord, including the right to an attachment for non-payment of rent.
Haywood & Son v. O'Brien et al., 537.
See MORTGAGE, 4.
REPLEVIN, 4.
1. REVOCATION OF: MUNICIPAL CORPORATION. A license to sell intoxi-
cating liquors may be revoked by a city for a violation of the ordinance
under which it was granted. The City of Ottumwa v. Schaub, 515.
1. RECOGNIZANCE FOR STAY OF EXECUTION: FAILURE TO RECORD.
tions 3293-3293 of the Revision, relating to stay of execution, provide
that the surety may be taken and approved by the clerk and the recog-
nizance entered of record, and that every recognizance so taken shall
have the effect of a judgment confessed against the property of the
sureties. Where a stay bond, executed and filed with the clerk, was
lost and no entry thereof made upon the records of the court, held, that
it did not become a lien upon the property of the surety as against sub-
sequent incumbrancers without actual notice. Waldron Bros. v. Dick-
erson et al., 171.
A decree of the court afterward entered upon a show-
ing of the fact of the filing of the bond, and declaring the recognizance
to be a lien upon the property of the surety from the time of such filing,
would not conclude the holders of incumbrances taken prior to such
decree, who were not parties to the proceeding. Id.
See LANDLORD AND TENANT, 2.
MORTGAGE, 10, 11.
RAILROADS, 2, 3.
1. PROCEEDS OF: DISTRIBUTION. Under section 1182 of the Code, the pro-
ceeds of a policy of insurance upon the life of an individual become the
separate property of the husband, or wife and children, of such indi-
vidual, or, in case the insured leaves a wife and no children, of the wife,
to the exclusion of the other heirs, and section 2372 should be construed
in harmony with such provisions. Rhode v. Bank et al., 375.
1. PROBABLE CAUSE: CONVICTION. In an action to recover damages for
malicious prosecution, the fact of conviction upon such prosecution is
not conclusive evidence of probable cause for its institution, but may be
rebutted by proof that the conviction was based upon false and perjured
testimony: in the absence of such proof, however, the judgment of con-
viction will be deemed conclusive. Bowman v. Brown et al., 437.
The fact that the prosecuting witness did not testify
falsely upon the trial will not relieve him from liability if he instituted
the prosecution maliciously and without probable cause. Id.
: EVIDENCE CONSIDERED. Evidence considered which was held
insufficient to support a verdict for damages on occount of malicious
prosecution. Id.
1. COUNTY SUPERINTENDENT: TEACHER'S CERTIFICATE. Mandamus will
not lie to compel the issuance of a teacher's certificate by the county
superintendent; the superintendent being vested with a discretionary
power, the court may compel him to act upon an application, but cannot
control his discretion. Bailey v. Ewart, 111.
A marriage between parties one of whom
has a husband or wife living is absolutely void, and no rights of the
other party are affected thereby. This is not altered by the fact that
the statute provides for actions to annul such marriages. Drummond
v. Irish, 41.
1. LIABILITY OF MASTER FOR SERVANT'S ACTS. Defendants were owners
of a brewery and employed an armed watchman to guard the property
and prevent breaches of the peace. Plaintiff's intestate, being intoxi-
cated and disorderly, was pursued by the watchman, and while retreat-
ing was shot and killed: Held, that the shooting was not done in the
line of the watchman's duty, and that defendants were not liable there-
for. Golden v. Newbrand et al., 59.
2. EVIDENCE: ADMISSION. The testimony of defendants' superintendent
in a former action to which defendants were not parties was not admis-
sible against them, and, not being part of the res gesie, would not
constitute an admission by them. Id.
3. EMPLOYE: WAIVER OF DEFECT. An employe who knows, or by the
exercise of ordinary diligence could know, of defects in the things
about which he is employed, and continues in the service without objec-
tion and without promise of change, waives all right to recover for inju-
ries caused thereby, and this waiver cannot be affected by the particular
situation in which he may be placed, or the rapidity and promptness
with which he is required to act at the time of the injury. Perigo v.
The C., R. I. & P. R. Co., 276.
4. NEGLIGENCE: LINE OF DUTY. Plaintiff's intestate was engaged in
mining coal in the mine of defendant. He left the room in which he
was working and entered another to visit the occupants, and while there
the roof gave way, by reason of the age and insufficiency of the props,
causing his death: Held, that. not being engaged in the line of his duty
at the time of the injury, he stood in the same relation to the defendant
as a visitor to the mine, and could not complain of defendant's negh-
gence. Wright v. Rawson, 329.
1. AS MAGISTRATE: FEES IN STATE CASES. The mayor of a city is not
entitled to fees from the county for services rendered as magistrate in
state cases, under section 506 of the Code. ADAMS, J., dissenting.
Upton v. The County of Clinton, 311.
1. SUB-CONTRACTORS: PAYMENT. Sub-contractors who furnish labor or
materials for the erection of a building are required to take notice of the
terms of the principal contract, and the owner is protected in making
payments to the principal contractor in accordance with the terms of his
contract, unless notified of claims for material or labor furnished before
such payments are due. Stewart & Hayden v. Wright et al., 335.
2. REDEMPTION FROM JUDICIAL SALE:
JUDGMENT. Where in proceed-
ings to establish a mechanic's lien against property which had been sold
under a decree of foreclosure, since the claim accrued, the mortgagor
and his wife, who had parted with the equity of redemption, were the
only parties defendant, it was held that the judgment would not auth-
orize the holder of the claim to redeem from the foreclosure sale. Spink
r. McCall, 4382.
3. MANNER OF ENFORCING. Mechanic's lens which were filed before the
taking effect of chapter 100, laws of 1876, and which are first liens upon
the building but subject to others upon the realty, can only be enforced
by a sale and removal of the building or structure. The First National
Bank of Waterloo v. Elmore et al., 541.
4. ASSIGNMENT OF CLAIM. Prior to the taking effect of chapter 4, laws of
1874, the assignment of a claim for which a mechanic's lien was held
did not operate as a transfer of the lien. The First National Bank of
Decorah v. Day Brothers et al., 680.
— CONTRACT, Where the defendants executed a draft upon a third
person which they sold to the plaintiff, stating that they held a mechan-
ic's lien for the indebtedness of the drawee to them, it was held that
such facts would not constitute an implied contract for the assignment
of the lien to the plaintiff. Id.
1. PRIOR LIENS: MORTGAGEE IS PURCHASER. A mortgagee of real estate
is a purchaser, within the meaning of the recording laws, and his mort-
gage, when taken in good faith, is subject only to such prior liens as
were of record at the time of its execution. Patton e. Eberhart et al., 67.
2. CONSIDERATION: VENDOR'S LIEN. The assignment of a note given for
the purchase money of land carries with it the lien of the vendor, and
such lien constitutes a sufficient consideration for a mortgage afterward
executed upon the property by the vendee and his wife to secure the
payment of the note. Reynolds v. Morse et al., 155.
3. HOMESTEAD. A mortgage upon the homestead in the ordinary form and
signed by the husband and wife is valid, although the property is not
designated therein as the homestead of the mortgagors. Id.
4. ATTORNMENT OF TENANT.
before the expiration of the
foreclosure sale, is invalid.
The attornment of a tenant to a mortgagee.
mortgagor's right of redemption under the
Mills v. Heaton, 215.
5. INDEBTEDNESS CREATED BY: PERSONAL JUDGMENT. A mortgage, in
the ordinary form of a conveyance subject to defeasance upon payment
of certain sums by the mortgagor, does not create an indebtedness for
which a personal judgment can be rendered against the mortgagor.
Weil v. Churchman et al., 253.
6. REPLEVIN: DISMISSAL BEFORE ISSUE JOINED. Where an action of
replevin was dismissed by the plaintiffs before issue joined, and an
order entered for the return of the property, which was not complied
with by the plaintiffs, it was held that a chattel mortgage executed by
them while in possession of the property, before the issuance of a writ
of restitution, and taken by the mortgagee in good faith, was valid.
Case & Co. v. Woleben, 389.
7. WANT OF CONSIDERATION: ASSIGNMENT. Where a mortgage purport-
ing to secure a certain promissory note of the mortgagor was executed
to one having knowledge that it was without consideration, and no note
was ever delivered, it was held that an assignee of the mortgage took
it subject to all equities existing between the original parties, and that
it could not be enforced. Burbank v. Warwick et al., 493.
8. VALIDITY: NATIONAL BANKS. While the taking of a mortgage by a
national bank, to secure a loan made at the time, is by implication pro-
hibited by section 5186 of the Revised Statutes of the United States, a
mortgage so taken is not void, but may be enforced, the penalty for
violation of the statute being enforceable only by the government by a
revocation of the bank's charter. Following Union National Bank v.
Mattheirs, 98 U. S., 621; First National Bank of Waterloo v. Elmore
et al., 541.
9. MERGER: PURCHASE OF LEGAL TITLE. The purchase by a mortgagee
of the legal title to the property covered by the mortgage will not
operate as a merger and extinguish the lien of his mortgage unless
such is his intention, and the intention will not be presumed where his
interest requires that the mortgage should remain in force. Id.
10. FIXTURES: MACHINERY. Where a chatte! mortgage was executed
upon certain machinery which was afterward placed in a mill, and it
appeared that the machinery was but slightly attached to the building
and could be removed without injury to the realty, it was held that
such mortgage was valid as against a prior mortgage of the real estate.
Id.
Where the holder of a first mortgage on land
also held a third mortgage upon the same land as collateral to the first,
and the property was sold by him under a foreclosure of the latter, it
was held that, as the sale operated to discharge the first lien, the holder
of a second mortgage would be required to redeem therefrom by paying
the amount of the first mortgage debt. Strong et al. v. Burdick et al.,
: TAXES PAID BY MORTGACEE. A mortgagee who has purchased
a tax title on the mortgaged property for the protection of his lien, and
who does not claim title thereunder as against other lien holders, is
entitled to add the amount paid by him to his claim, and to be rena-
bursed therefor by a junior mortgagee seeking to redeem. Id.
See CONVEYANCE, 3, 4.
PROMISSORY NOTE, 4.
VENDOR'S LIEN, 1.
1. IMPROVEMENT OF STREETS. Facts considered which were held to show
that an improvement of a street was such as would authorize the levy
of a special tax upon adjoining property for its cost, as distinguished
from repairs. Koons v. Lucas, 177.
: STREET RAILWAY. A street railway company having a right of
way for its track over a street cannot be taxed for the cost of an im-
provement of the street under section 466 of the Code. Id.
3. CITIES: POWER TO OFFER REWARDS. A city organized under the gen-
eral incorporation laws of this State has no power to offer a reward for
the detection of criminals. Hanger v. The City of Des Moines, 193.
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