4. ESTABLISHMENT OF STREETS.
The exercise of the power to establish
streets, conferred upon cities and towns by section 464 of the Code, will
not be reviewed by the courts upon the ground that it is in conflict with
the public interest, the decision of the city or town authorities upon that
question being conclusive. The Town of Cherokee v. The S. C. & I.
F. Town Lot and Land Co., 279.
: EVIDENCE. In proceedings to assess damages to certain prop-
erty by reason of the location of a street thereon witnesses testifying to
the value of the land are not required to be experts. Residents of the
town, familiar with the premises and having ordinary opportunities of
knowing the value of real estate in that locality are competent. Id.
- Evidence of the price at which other tracts of land in
the same neighborhood have been sold is admissible, the difference in
location, character and value between them and the tract in question
being shown. Id.
DAMAGES. The diversion of travel from other streets, caused by
the opening of the new street, is a remote consequence of the appropria-
tion of the land and does not constitute ground for the allowance of
damages. Id.
: OFFER: COSTS. In such a proceeding the offer of the town to
submit to a judgment for a stated amount will not, in case of a verdict
for a smaller sum, authorize the court to tax the costs to the land owner
under section 2900 of the Code, that section not being applicable to such
actions. Id.
9. CHANGE OF GRADE: INJURY TO PROPERTY. Under section 469 of the
Code a city is liable in damages for injury caused by changing the estab-
lished grade of streets to adjoining property improved with reference to
the former grade, whether the injury is direct, and caused by the neg
ligence of the city, or consists of a general depreciation in value in
consequence of the change. Hempstead v. The City of Des Moines,
303.
: MEASURE OF DAMAGES. The measure of damages is
the diminution in value of the entire realty, and is not limited to the
injury to improvements alone. Id.
——: REMEDY. Where the city council establishes a new
grade, but annuls the appraisement of damages made under the statute,
a property owner may maintain an action against the city to recover for
the injury to his property. Id.
12. INJURY TO PROPERTY BY CHANGE OF GRADE: MEASURE OF DAM-
AGES. Where the established grade of a street is changed, resulting in
damage to adjacent property, recoverable under section 469 of the Code,
the measure of damages is the difference in value of the property result-
ing from the change, and the city is entitled to have set off against the
amount of the damage any enhancement in value of the property by
reason of the change. Meyer v. The City of Burlington, 560.
See EVIDENCE, 21.
LICENSE, 1.
TAXATION, 5.
See MORTGAGE, 8.
USURY, 1.
1. WAREHOUSEMAN: BURDEN OF PROOF. In an action to recover of a
railroad company for the loss of goods delivered to it for transportation,
where it was admitted by the pleadings that the goods were destroyed
by fire while in defendant's warehouse, and alleged that such fire
occurred through defendant's negligence, held that the burden of proof
was upon the plaintiff to establish such negligence before he could
recover. Denton v. The C., R. I. & P. R. Co., 161.
2. CONTRIBUTORY: WHEN NOT A DEFENSE,
In an action to recover for
injury caused by defendant to the estate of plaintiff's decedent by sell-
ing liquors to said decedent until he became intoxicated and unconscious,
and then expelling him from a saloon, at a late hour of the night,
thereby causing his death from exposure, it was held erroneous to instruct
the jury that the purchasing and drinking of the liquor by the deceased
constituted contributory negligence, which would bar a recovery.
Weymire o. Wolfe, 533.
See MASTER AND SERVANT, 4.
1. DRAFT: GRACE. A draft in which no time for payment is mentioned is
payable on demand, and is not entitled to grace. This rule of the law
merchant is not changed by chapter 81, laws of 1876. First National
Bank of Davenport v. Price & Sanford, 570.
INTEREST. The fact that such a draft calls for interest after
maturity does not indicate that it is not payable on demand. Id.
3. COLLECTION: NEGLIGENCE. Where the plaintiff in reply to a letter from
defendants directed them to protest a draft previously sent them for col-
lection, and afterward remitted to them the cost of such protest, it was
held that such acts constituted no defense to an action to recover from
defendants for negligence in not sooner presenting the draft for pay-
ment. Id.
See PROMISSORY NOTE, 2, 6.
1. NEWLY DISCOVERED EVIDENCE. A new trial will not usually be granted
upon the ground of newly discovered evidence when such evidence is
merely cumulative in character. Facts considered which were held
insufficient to entitle a party to a new trial. Bailey, Wood & Co. v.
Landingham et al., 415.
1. POSSESSION OF REAL ESTATE, Facts considered which were held to
constitute possession of real estate, and under such circumstances as to
be notice of the claim of title under which it was held. The case dis-
tinguished from Rogers v. Hussey, 36 lowa, 664. Wrede v. Cloud
DRAFT, 3.
JURISDICTION, 1.
PRACTICE, 7.
REPLEVIN, 2, 3.
SALE, 2, 3.
TAX SALE AND DEED, 5, 6, 7.
See MUNICIPAL CORPORATIONS, 8.
1. CUSTODY OF CHILDREN: DIVORCE. When parents are living apart the
courts may make such orders regarding the custody of their children as
their welfare demands, and may, during the pendency of proceedings
for divorce between the parents, award the custody of the children to
either parent, or provide for their separate maintenance, being governed
always by a regard for the welfare of the children. Green v. Green, 403,
See JURISDICTION, 3, 4.
SERVICES, 1.
1. MEMBERS OF PARTNERSHIP.
Where an action is brought against a
defendant as a member of a firm the court may properly allow the other
partner to enter appearance as a party defendant. Peck et al. v. Par-
chen et al., 46.
See CONTRACT, 4.
EVIDENCE, 17.
PRACTICE, 9.
SCHOOL DISTRICT. 1.
1. PROMISSORY NOTE: INDORSEMENT. Where, by the terms of a contract.
a firm were to indorse certain notes taken by them as agents, which
they did not do at the time the notes were taken, it was held that after
dissolution the partner authorized to settle the business of the partner-
ship had power to bind it by a guaranty of the notes in the firm name.
the guaranty being the same in effect as an indorsement with waiver of
notice of non-payment and protest. The Star Wagon Co. v. Swezey,
Lebo & Co. et al., 391.
2. SETTLEMENT: IMPEACHMENT OF. Where there has been an accounting
between partners, and neither fraud nor mistake affecting the whole
account as stated is shown, such account will be deemed correct except
as to such specific items as can be shown to be erroneous by the party
seeking to impeach the settlement. Hunter v. Aldrich et al., 442.
3. EVIDENCE: BOOKS OF ACCOUNT. Facts considered and held to render
the books of account of a partnership admissible in evidence in an
action between the partners. Id.
4. SETTLEMENT OF: INJUNCTION. Facts considered which were held to
anthorize the issuance and continuance in force of an injunction restrain-
ing the surviving member of a partnership and others from disposing
of the partnership assets, pending a settlement of the firm accounts.
Fletcher v. Vandusen et al., 448.
5. PROMISSORY NOTE: AUTHORITY TO EXECUTE. Where a firm by a viola-
tion of their contract of agency became liable to their principal for the
amount of certain notes taken by them as agents, it was held that
either partner had authority, in settlement of the claim of the principal,
to bind the firm by signing its name to the notes as co-maker, although
the execution of notes was no part of the firm business. Brayley v.
Hedges, 623.
See CONTRACT, 11, 14.
PARTIES, 1.
1. PARTIAL: DISPUTED CLAIM. An instruction charging the jury that the
payment of part of an admitted debt would not support a promise to
forgive the remainder, and that simply an agreement to take less than
the amount due of a disputed debt, without payment, was not binding,
was held to be correct. Bryan v. Brazil, 359.
See AccoUNT, 1.
JUDGMENT, 5.
MECHANIC'S LIEN, 1.
PROMISSORY NOTE, 3.
1. AMENDMENT. Where an amendment to a petition to which a demurrer
had been sustained stated no further facts, but merely conclusions of
law from the facts before pleaded, held, that a motion for more specific
statement was properly sustained. Lane v. The B. & S. W. R. Co., 18.
2. SUFFICIENCY: CONTRIBUTORY NEGLIGENCE. The averments of a peti-
tion to recover for personal injuries considered and held not to show
contributiory negligence. Luby v. The C., R. I. & P. R. Co., 168.
3. VERIFICATION: AMENDMENT. A defective verification of a petition in
attachment may be amended under section 3021 of the Code. Lowen-
stein v. Monroe and Foster, 231.
4. WHEN NOT SPECIFIC: WAIVER. Where a petition contains all the alle-
gations necessary to entitle the plaintiff to relief, the fact that they are
not specific will not defeat a recovery in the absence of a motion assail-
ing such defect. The District Township of Coon v. The Board of
Directors of the District Township of Providence et al., 287.
5. PARAGRAPH: LEGAL CONCLUSION. A paragraph in a petition in equity
which states only legal conclusions may be stricken out on motion,
though the facts upon which such conclusions are based are averred in
other paragraphs of the same pleading. Cooper v. French, 531.
6. DENIAL OF SIGNATURE: BURDEN OF PROOF. A party may put in
issue the genuineness of his signature to a written instrument in suit by
a pleading not under oath, but the burden of proof upon such issue,
under the provisions of section 2730 of the Code, devolves upon him.
Brayley v. Hedges, 623.
7. FORCIBLE ENTRY AND DETAINER. A petition in an action of forcible
entry and detainer considered, and held not to be objectionable as show-
ing that the title to real estate was involved in the action. Jordan v.
Walker, 647.
Where the petition in an action of forcible entry and detainer
averred that the title to the property was in plaintiff, and that the
defendant was a tenant at will holding over after notice to surrender
possession, and the answer set up a verbal contract with plaintiff, in
pursuance of which the legal title to the property was conveyed to him
by the defendant, as security for the payment of money only, and
averred that defendant was entitled to retain possession under said
contract, it was held that such answer presented a good defense, and
that a demurrer thereto was erroneously sustained. Id.
9. AMENDMENT: APPEAL FROM JUSTICE. Amendments to the pleadings
may be allowed by the Circuit Court in a case appealed from a justice
of the peace, in furtherance of justice, and in the exercise of a sound
discretion. Clou v. Murphy, 695.
PRACTICE, 3, 6, 11, 20, 25, 29
1. ACTION TO QUIET TITLE. An action to quiet title may be maintained
in all cases where the defendant makes some claim adverse to the estate
of the plaintiff, even where the former is in the actual possession of the
land. Lewis v. Soule et al., 11.
2. FORM OF ACTION. The fact that legal relief is sought in an action in
equity cannot be urged in abatement for the first time on appeal. Id.
3. AMENDMENT: WAIVER OF ERROR. The filing of an amendment to a
pleading which has been held insufficient upon demurrer, is a waiver of
the right to assign the sustaining of the demurrer as error.
The B. & S. W. R. Co., 18.
4. WAIVER OF ERROR: INSTRUCTION. Where evidence tending to prove
a special contract was introduced without objection under a petition
claiming to recover generally for services rendered, held, that it was
not error to instruct with reference to the special contract. Gaston et
al. v. Austin, 35.
|