THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF Law Library University of Notre Dame E.C.Strv^r son Hockwe^ -City Iowa KINNE'S Revised Edition, 1897, JN TWO VOLUMES VOL. II. BY L. G. KINNE, Ex-Chief Justice of the Supreme Court of Iowa. Law Lecturer at the Iowa State University at Iowa City and at the Iowa College of Law at Des Moines, Iowa. : CHICAGO: CALLAGHAN AND COMPANY. 1898. Entered according to Act of Congress, In the year 1888, By CALLAGHAN & COMPANY, In the Office of the Librarian of Congress, at Washington, D. C. Entered according to Act of Congress, in the year 1898, By CALLAGHAN & COMPANY, In the Office of the Librarian of Congress, at Washington, D. C. Composition by The Brown-Cooper Typesetting Co. Chicago. CONTENTS. VOLUME II. CHAPTER XLVIII. OF GARNISHMENT. Sec. 771. Garnishment, how effected. 772. Of taking the answer by the sheriff. 773. When garnishee to appear at court. 774. Who may be garnished. 775. Who can not be garnished. 776. Of proceedings when garnishee dies. 777. Of fees and mileage of the garnishee. 778. Of waiver by garnishee of his exemption. 779. Penalty for failure to attend and answer. 780. Of showing cause against the issuance of an execution Set- ing aside default. 781. Of the garnishee's liability for costs. 782. Of the garnishee's exonerating himself. 783. Of the garnishee's liability for interest. 784. Of the position of the garnishee and his rights generally. 785. Of controverting the answer of the garnishee, and of trial. 786. Of notice to the principal defendant. 787. Of showing the exemption of the property, etc. 788. When judgment will be rendered against a garnishee. 789. Of the form of the judgment. 790. Of debts due by negotiable paper. 791. Of conclusiveness of the judgment, appeals, etc. CHAPTER XLIX. OF EXECUTIONS AND EXEMPTIONS. Sec. 792. Within what time an execution may issue. 793. What judgments and orders are enforceable by execution. 794. Into what counties the writ may run. 795. When issued on Sunday. 796. Of the issuance of the writ and of the duty of the clerk. 797. Of the requisites of the writ generally. 798. Of proceedings when the writ is issued to another county. 799. Of forms of executions. 800. When a stay of execution is allowed. 801. Of debts contracted prior to September 1, 1873. iii IV CONTENTS. Sec. 802. Of stay bonds and their approval. 803. Effect of stay after execution has been Issued The bond. . 804. Of sureties preventing or determining the stay of execution. 805. Duty of sheriff on receiving an execution. 806. Same When against principal and surety. 807. Of the levy of the execution. 808. When sheriff dies or goes out of office. 809. How the levy is made. 810. Of levying on judgments, bank bills, etc. 811. Of proceedings by garnishment. 812. Of levying on mortgaged chattels. 813. Of the levy on partnership property, and proceedings there- under. 814. Of executions against municipal corporations. 815. How stock interests of the defendant in a corporation levied on. 816. Debtor may pay the sheriff. 817. Effect of the levy Surplus, etc. 818. When an indemnity bond may be demanded. 819. Levy discharged, when. 820. Of the bond, its terms and conditions. 821. Of the application of proceeds, etc. 822. What property is exempt from execution. 823. Same Of personal earnings, etc. 824. Same Of pension money. 825. Of insurance money. 826. Same Of exemptions to unmarried persons. 827. Same Of the head of the family. 828. Same When exemptions not allowed Of absconding, etc. 829. Of other exemptions. 830. Of waiver of right of exemption. 831. Of securing the claims of laborers of insolvent corporations. 832. Of depriving persons of the benefit of the exemption laws. 833. Of exchange of exempt property, liens, etc. 834. Of construction of the statute, remedy, etc. CHAPTER L. OF PROCEEDINGS AUXILIARY TO EXECUTION. Sec. 835. Of proceedings after execution is returned. 836. Of proceedings before execution is returned. 837. Of granting the order. 838. Of the examination of the debtor. 839. Of power of the court or officer on the hearing. 840. Of disposal of equitable interests in lands. 841. Of debtor in contempt. 842. When a warrant of arrest will issue. 843. When the debtor may give bond. 844. Of the effect of the statute. 845. Of compensation of officers, etc. CONTENTS. V Sec. 846. Of actions by equitable proceedings. 847. Of the petition in equity supplemental to execution. 848. Of the answers. 849. Of the lien. 850. Of enforcing surrender of property. CHAPTER LI. OF ACTIONS FOR THE RECOVERY OF REAL PROPERTY. Sec. 851. When an action of right will lie. 852. When an action to quiet title will lie. 853. Of the parties. 854. Of proceedings in an action to recover real property. 855. Of proceedings in an action to quiet title. 856. Of service of notice. 857. Of the petition in an action of right. 858. Of the answer. 859. Of practice. 860. Of the verdict 861. Of judgment. 862. Of limitations, etc. 863. Of tenants. 864. Of notice in actions to quiet title. 865. Of the petition to quiet title. 866. Of disclaimer and costs. 867. Of new trials. 868. Of appeals. 869. Of constructive notice. CHAPTER LIT. OF ACTIONS ON OFFICIAL SECURITIES AND FOR FINES AND FORFEITURES. Sec. 870. Of bonds of public officers. 871. When the action lies. 872. May be several actions on the same security. 873. Extent of liability of sureties. 874. Of the petition. 875. Fines and forfeiture. 876. Of the petition in cases of forfeiture. 877. To what county fines belong. 878. Effect of paying part of a fine. 879. Of recovery of fine paid. CHAPTER LIII. OF ACTIONS AGAINST RAILWAY COMPANIES FOR DAMAGES CAUSED BY FIRE, AND FOR INJURIES TO STOCK. Sec. 880. Of former statutes. 881. Of the liability under the present statute. 882. Of liability of company operating a road. VI. CONTEXTS. Sec. 883. Of contributory negligence. 884. Of the evidence. 885. Of damages. 886. Of the petition. 887. Of liability of railway companies for killing stock, etc. 888. Same Of stock "running at large." 889. Same Of fencing at depot grounds and highways. 890. Same Of failure to repair fences. 891. Same Of double damages. 892. Of the affidavit and notice. 893. Of practice, evidence, etc. 894. Of speed of trains. CHAPTER LIV. OF ACTIONS OF REPLEVIN. Sec. 895. When the action lies. 896. When the action does not lie. 897. Of place of bringing suit. 898. Of the parties. 899. Of the proceedings. 900. Of the petition. 901. Of the bond. 902. Of the writ of replevin. 903. Of service of the writ. 904. Of the delivery bond. 905. Of the sheriff's return. 906. Of pleadings, practice, evidence, etc. 907. Of the verdict. 908. Of the judgment, etc. 909. Of the execution. 910. Of proceedings when property has been concealed. 911. Of detinue. CHAPTER LV. OF ARBITRATION. Sec. 912. What may be submitted. 913. Of the submission. 914. Of the powers of the arbitrators. 915. Of the award. 916. Of proceedings on an award in court. 917. Of bonds to abide the award. 918. Of common law submissions and awards. 919. Of the action on the award or bond. CHAPTER LVI. OF THE ADMISSION OF ATTORNEYS. Sec. 920. Of statutory provisions. 921. Of rules of the supreme court. CONTEXTS. Vlt CHAPTER LVII. OF THE ADMINISTRATION OF OATHS. Sec. 922. Who may administer. CHAPTER LVIII. OF ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. Sec. 923. When valid as a general assignment. 924. When valid as a partial assignment. 925. Of assignments embraced in several instruments. 926. Of defective assignments. 927. Of insolvency. 928. Of assignments by partners. 929. Of the inventory. 930. Of property passed by the assignment. 931. Of the rights of the assignee. 932. Of the duty of the assignee. 933. Of the notice. 934. Of the filing of claims. 935. Of claims filed after three months. 936. Of the assignees report of creditors. 937. Of contesting claims. 938. Of priority of taxes. 939 Of preferred claims. 940. Of dividends. 941. Of the settlement. 942. Of sale of the property. 943. Of removal of the assignee. 944. Of the death or misconduct of the assignee. CHAPTER LIX. OF THE WRIT OF CERTIORARI. Sec. 945. When the action will lie. 946. When the action will not lie. 947. Of parties to the action. 948. What court may grant the writ. 949. Of the proceedings. 950. Of the petition for the writ and of notice. 951. Of the writ and of service and return. 952. Of the hearing. 953. Of limitation of the action, etc. ' CHAPTER LX. OF CHATTEL MORTGAGES. Sec. 954. Of mortgages on after acquired property. 955. Of mortgages on growing crops, and crops to be grown. 956. Of mortgages of book accounts. Vlll CONTENTS. Sec. 957. Description of the property. 958. Of the effect of retention of possession by the mortgagor, and of sale by him of the property. 959. Of the effect of agreements not to record. 960. Of questions of priority over landlord's liens. 961. Of priority of the lien generally. 962. Of mortgages between husband and wife. 963. When an instrument is a chattel mortgage, and when an assignment for the benefit of creditors. 964. Of agreements between mortgagor and mortgagee regarding the time of sale. 965. Of second mortgages. 966. Of protection to diligent creditors. 967. Of action to recover property mortgaged Actions at law. 968. Of the mortgagor's interest in the property before sale. 969. Of the mortgagor's interest after sale. 970. Of the interest of the mortgagee in the property. 971. Of equitable mortgages. 972. When valid against existing creditors, etc. 973. Of waiver of the lien and of estoppel. 974. Of the enforcement of foreign mortgages. 975. Of foreclosure by notice and sale. 976. Of the notice in such cases. 977. Of service of the notice. 978. Of parties to the proceedings. 979. Of the sale and of attorney's fees. 980. Perpetuating evidence of the sale, etc. 981. Of the validity of the sale. 982. Of the power of sale. 983. Of the remedy, costs, etc. 984. Of injunction and transfer to the district court 985. Of proceedings in the district court. 986. Relating to levies on mortgaged personal property. 987. Of the sale of chattel mortgage property which has been pledged as collateral. CHAPTER LXI. OF CONTEMPTS. Sec. 988. What acts and omissions are deemed to be contempts. 989. Of contempts of the general assembly. 990. Failure to answer interrogatories, a contempt. 991. Disobedience of judgments or orders, a contempt. 992. Of contempts in proceedings auxiliary to execution. 993. Of contempts in equitable proceedings. 994. Of contempts in violation of injunctions. 995. Of contempts in habeas corpus proceedings. 996. Of contempts for failure to obey a subprena, 997. Of acts which are not considered contempts. 998. Of the punishment for contempts. CONTENTS. IX Bee. 999. The preservation of the evidence. 1000. Of the trial, pleadings, evidence, etc. 1001. Of appeals. 1002. Punishment for contempt, not a bar to an indictment. CHAPTER LXII. OF CHANGING THE NAMES OF PERSONS. Sec. 1003. Of power to change the names of persons. 1004. Of the petition. 1005. Of the order. 1006. "When the change takes effect. 1007. Of the notice. CHAPTER LXIII. OF DIVORCE ANNULLING MARRIAGES AND OF ALIMONY. Sec. 1008. Of jurisdiction and trial. 1009. Of the grounds for a divorce generally. 1010. Of adultery. 1011. Of desertion. 1012. Of conviction for a felony. 1013. Of habitual drunkenness. 1014. Of inhuman treatment. 1015. Of condonation and misconduct of the plaintiff. 1016. Of the petition. 1017. Of cross-petition, etc. 1018. Of temporary alimony. 1019. Of attachment. 1020. Of attorney's fees. 1021. Of the custody of children. 1022. Of allowance of permanent alimony without divorce. 1023. Of the power to grant permanent alimony. 1024. When an allowance of alimony is proper. 1025. Of allowing specific property. 1026. Of the lien of the judgment. 1027. Of setting aside the decree and of its modification, etc. 1028. Of the causes for annulling marriages. 1029. Of the petition, etc. 1030. Of the legitimacy of children, etc. CHAPTER LXIV. OF HABEAS CORPUS. Sec. 1031. When the writ lies. 1032. When it does not lie. 1033. Of the petition. 1034. Of the application for the writ. 1035. Of the issuance of the writ. X COXTEXTS. Sec. 1036. Of notice to the county attorney. 1037. Of service of the writ. 1038. Of disobedience of the writ. 1039. Duties of the officer. 1040. Of the precept and when it will issue. 1041. How the precept is served. 1042. Presumptions Appearance of the parties. 1043. Of contempt and attachment. 1044. Of commitment for failure to comply with the writ. 1045. Of the service of the attachment. 1046. Of the answer to the writ. 1047. Of pleas to the answer. 1048. Of the trial and judgment. 1049. Of proceedings by habeas corpus for the custody of children. 1050. Of disobedience of an order of discharge Filing of papers. CHAPTER LXV. OF THE HOMESTEAD. Sec. 1051. When the homestead is exempt. 1052. When it is not exempt. 1053. Same Of debts contracted prior to its purchase. 1054. When sold for debts created by written contract. 1055. Of the head of the family. 1056. Of conveyance, incumbrance, *ndgments, etc. 1057. Of the extent of the homestead. 1058. Same Of several lots. 1059. Same What it embraces. 1060. Of selecting and platting the homestead. . 1061. Of changing the limits of the homestead. 1062. Of pleading and practice. 1063. Of dispute as to what constitutes the homestead How de- termined. 1064. Of the action of the court, etc. 1065. Of the occupation of the homestead by the survivor, etc. 1066. Of the election to hold the homestead in lieu of dower. 1067. Of the disposal of the homestead. 1068. Of sale or devise of the homestead. 1069. Of abandonment of the homestead. CHAPTER LXVI. OF INJUNCTIONS. Sec. 1070. Object and purpose of injunctions. 1071. Granted to abate nuisance relating to manufacture and sale of intoxicating liquors. 1072. How actions to enjoin nuisances relating to manufacture and sale of intoxicating liquors should be brought. 1073. Of the application in such actions. CONTENTS. XI Sec. 1074. When an injunction will be granted generally. 1075. When an injunction will be refused. 1076. Of parties to the action.- 1077. How and at what time it may be granted. 1078. Same. 1079. Rules governing the granting of injunctions Powers of the court. 1080. By whom and when a temporary injunction may be granted. 1081. When not granted without notice. 1082. Form and requisites of the petition. 1083. Of the allowance of the writ. 1084. Of the bond. 1085. Of actions on injunction bonds. 1086. Issuance of the writ. 1087. Of vacation and modification of the injunction. 1088. Of dissolution of the injunction. 1089. Relating to pleading and practice. 1090. Violation of injunction How punished. 1091. Of amendments. CHAPTER LXVII. OF LANDLORD AND TENANT. Sec. 1092. To what the lien of landlord attaches. 1093. When he has no lien. 1094. Concerning the priority of the lien. 1095. When the lien attaches, and its continuance. 1096. Of waiver or loss of the lien. 1097. Of injunctions against tenants. 1098. Of proceedings against third persons to recover for property sold them by tenant, and of actions for injuries to the crop. 1099. Cases in which the landlord may assert his lien. 1100. Of the remedy. 1101. Of payments by the mortgagee of rent. 1102. Of enforcement of the lien. 1103. Of the petition. 1104. Of the attachment. 1105. Of the levy of the writ. 1106. Of pleading, etc. CHAPTER LXVIII. OF MANDAMUS. Sec. 1107. Object and purpose of the ordr. 1108. By whom issued. 1109. Will not issue to control discretion. 1110. When the order will be issued. 1111. When the order will be refused. 1112. On whose petition granted. xii CONTENTS. Sec. 1113. When action for may be joined with other causes of action. 1114. Of the petition. 1115. Of practice. 1116. Of the order. 1117. Of power of the court. CHAPTER LXIX. OF MECHANIC'S LIENS AND CLAIMS. Sec. 1118. Of claims of sub-contractors of public buildings and im- provements. 1119. Same Manner of making claim. 1120. Same Adjudication of claim Release of Filing prevented, how. 1121. Of liens for opening, developing and operating coal mines. 1122. Who may have a mechanic's lien. 1123. When no lien allowed because collateral security is taken. 1124. Other cases in which the right to a lien is denied. 1125. Of the contract. 1126. Of liens on the wife's property by virtue of contracts made with the husband. 1127. Extent of the lien generally. 1128. Of priority of the lien. 1129. When the lien attaches Its continuance. 1130. Of preserving the lien. 1131. Of the duties of the clerk. 1132. By whom and in what court liens may be enforced. 1133. Who made defendants. 1134. When lien will be forfeited. 1135. Of pleadings, practice, etc. 1136. Of satisfaction of the lien. 1137. Of the petition. 1138. Of judgment. 1139. Of limitation of actions. 1140. Of sub-contractors Who are. 1141. Of the sub-contractor's lien How preserved and how dis- charged. 1142. Of payments made by the owner to the contractor within the thirty days, etc. 1143. Extent of lien of sub-contractor When claim filed after thirty days. CHAPTER LXX. OF REAL ESTATE MORTGAGES. Sec. 1144. How and where foreclosed. 1145. Of parties. 1146. Of election When separate actions are brought upon note and mortgage. 1147. Of the petition. CONTENTS. Xlll Sec. 1148. Of the judgment. 1149. Of attorney's fees. 1150. Of the execution. 1151. Of assignment to junior incumbrancers. 1152. Of the surplus arising from the sale. 1153. Of other liens. 1154. Of the sale, and of satisfaction of the mortgage. 1155. Of the duty of the clerk. 1156. Of foreclosure of title bonds. 1157. Of the cancelation of real estate contracts. 1158. Of pleadings, practice, etc. 1159. Of redemption. 1160. Of priority of liens, intervening equities, indexing, etc. 1161. Of release and merger. CHAPTER LXXI. OF MOTIONS AND ORDERS. Sec. 1162. Of the form and requisites of motions, etc. 1163. Of notice of motions. 1164. Of service and return of notice. 1165. Of the hearing. 1166. Of orders. CHAPTER LXXII. OP NUISANCE. Sec. 1167. Definition of nuisance. 1168. Of the action and when it will lie. 1169. When the action will not lie. 1170. Of the petition. 1171. Of the abatement of nuisances by parties injured thereby. 1172. Power of municipal corporations to determine what consti- tutes a nuisance. 1173. Of practice. 1174. Of the order of abatement. CHAPTER LXXIII. OP PARTITION. Sec. 1175. Of voluntary partition. 1176. Of partition by suit. 1177. Of parties to the action. 1178. When partition is not the proper remedy. 1179. Of partition of water power, mills, machinery, dams, etc. 1180. Of the interest of the widow, and of the homestead. 1181. Of partition of land owned by a firm. 1182. Of notice. 1183. Of the petition and what it must contain. 1184. Of the answer. Xiv CONTENTS. Sec. 1185. Of minors. 1186. Of disclaimer. 1187. Of practice. 1188. Of incumbrances. 1189. Of judgment. 1190. Of the appointment of referees. 1191. Of directions to referees. 1192. Of the qualification of referees. 1193. When referees need not be appointed. 1194. Of duties of referees where partition of the property is made. 1195. Of the report of referees of partition. 1196. When the report will be set aside. 1197. Of confirmation of the report. 1198. Of bond of referees where a sale is made. 1199. Of notice of sale. 1200. Of the report of sale by referees. 1201. When the sale may be set aside. 1202. Of confirming the sale, and of the conveyance. 1203. Effect of such conveyance. 1204. Of investing proceeds of sale. 1205. Of costs and attorney's fees. 1206. Of appeals. 1207. Of the record. CHAPTER LXXIV. OF PRESUMPTION OF REGULARITY OF PROCEEDINGS OF OFFI- CERS AND COURTS OF INFERIOR JURISDICTION. Sec. 1208. When proceedings of officers and courts presumed regular. CHAPTER LXXV. OF PROCEEDINGS TO REVERSE. VACATE AND MODIFY JUDG- MENTS, OR THE PROCEEDINGS OF BOARDS OR IN- DIVIDUALS ACTING JUDICIALLY. Sec. 1209. When judgments will be modified or vacated. 1210. Same In case of mistake, neglect or omission of the clerk, etc. 1211. Same For fraud, etc. 1212. Same For erroneous proceedings against a minor or person of unsound mind. 1213. Same For the death of one of the parties before the judg- ment is rendered. 1214. Same For unavoidable casualty or misfortune, etc. 1215. Same For error in a judgment shown by a minor, etc. 1216. Of equitable proceedings. 1217. When the application may be by motion. 1218. When the application must be by petition. 1219. Same When grounds discovered after term. CONTENTS. XV Sec. 1220. Of pleading, practice, etc. 1221. When the judgment will be vacated. 1222. Of injunction to suspend proceedings. 1223. Of judgment. CHAPTER LXXVI. OF QUO WARRANTO. Sec. 1224. Object and purpose of the writ. 1225. When the action will lie. 1226. When it will not lie. 1227. Of the commencement and prosecution of the action. 1228. Of pleading and practice. 1229. Of the petition. 1230. Of the trial and judgment 1231. Of the power of the court. CHAPTER LXXVII. OF RECEIVERS. Sec. 1232. An executive officer. 1233. When power should be exercised. 1234. Appointed in any civil action. 1235. Not appointed for benefit of strangers. 1236. Of the application. 1237. Of notice of the application. 1238. Of the petition. 1239. In cases of partnerships. 1240. In cases of mortgaged property. 1241. In cases of corporations. 1242. Rights of third parties protected. 1243. His qualifications. 1244. His powers and duties. 1245. His liability. 1246. His compensation. 1247. He can not be garnished. 1248. Of appeal. CHAPTER LXXVIII. OF REDEMPTION. Sec. 1249. What property is subject to redemption. 1250. Of the certificate of sale. 1251. Of redemption made by the defendant. 1252. When redemption may be made by creditors. 1253. Who is a creditor under the statute. 1254. Of redemption by holder of mechanic's lien. 1255. Of redemption in equity. 1256. What law is applicable to the sale. 1257. Of creditors redeeming from each other. XVI CONTENTS. Sec. 1258. Of computing the time of redemptioa 1259. Of the terms of redemption. 1260. Same. 1261. Who obtains the property. 1262. Of the mode of redemption. 1263. Of settling controversies as to the right to redeem or as to the amount to be paid. 1264. Of redemption from sale in parcels, and of the interest of tenants in common. 1265. Of the rights of the purchaser. 1266. Of assigning the right to redeem. 1267. Of the sheriff's deed. 1268. When the deed is constructive notice. 1269. Of the sheriff's return. 1270. Of damages for injury to property, etc. CHAPTER LXXIX. OF REVIVOR OP JUDGMENTS. Sec. 1271. When judgments will be revived. 1272. Of the sheriff's duty. 1273. Of the affidavit. 1274. Of execution against surviving defendants. 1275. When execution may be quashed. 1276. Of proceedings when all the defendants are dead. CHAPTER LXXX. OF SHERIFF'S SALE. Sec. 1277. Of the notice of the sale. 1278. Of selling without notice. 1279. Of the time and manner of sale. 1280. Of postponing the sale. 1281. Of the surplus arising from the sale. ' 1282. Of proceedings when property is unsold, etc. 1283. Effect of sale without notice to the defendant. 1284. Of plan of sale by defendant. 1285. When sales will be set aside. 1286. When sales will not be set aside. 1287. Sales must be set aside when purchaser fails to pay. 1288. Sales set aside when defendant has no title, etc. 1289. Of the rule of caveat emptor. 1290. Of the disposition of money and choses in action. 1291. Of satisfying judgment against an executor, or decedenS. 1292. Of setting off mutual judgments. 1293. Of sale of leasehold interest, etc. 1294. Of the appraisement of personal property. 1295. Of the sheriff's return. 1296. Of the rights of the purchaser, and who may purchase. 1297. Of the return of the purchase money, canceling satisfaction, etc. CONTENTS. XV11 CHAPTER LXXXI. OF SUMMARY PROCEEDINGS. Sec. 1298. When allowed. 1299. Of the form of proceedings. 1300. Of notice. 1301. Of the hearing. CHAPTER LXXXII. OF TRESPASS. Sec. 1302. What is trespass. 1303. When the action will lie. 1304. Who may maintain the action. 1305. When the action will not lie. 1306. Of the petition. 1307. Of practice. CHAPTER LXXXIII. OF WASTE. Sec. 1308. Waste defined. 1309. Of the commission of waste. 1310. Of the judgment. 1311. When a person will be deemed to have committed waste. 1312. Of the petition. CHAPTER LXXXIV. OF APPELLATE PROCEEDINGS. Sec. 1313. Of time of taking an appeal. 1314. When an appeal lies. 1315. When an appeal will not lie. 1316. What will amount to a waiver of the right to appeal. 1317. Of the amount in controversy How determined. 1318. Of the form and requisites of the certificate. 1319. Of the time of making the certificate, etc. 1320. Of questions involving an interest in real estate. 1321. Of notice of appeal. 1322. Of service of the notice Perfecting the appeal. 1323. Of filing the notice Waiving irregularities, etc. 1324. Of the supersedeas bond. 1325. Of proceedings when bond is defective Of the supersedeas. 1326. Who may appeal. 1327. Of the certification of the record When necessary and how obtained. 1328. Of denials of the transcript and the perfection of the record. 1329. Of certifying the record in an equity case. XV111 CONTENTS. Sec. 1330. Of the form of the transcript. 1331. Of corrections of the record, etc. 1332. Of inspection of original papers. 1333. Of the form and requisites of the abstract. 1334. Of the construction and modification of rules. 1335. When the appeal will be dismissed or the judgment affirmed. le>36. When the abstract will be deemed true. 1337. When the abstract may be attacked by motion. 1338. Of the filing and service of amended and additional ab- stracts. 1339. When the abstract must contain all the evidence, or all the instructions. 1340. What is sufficient to show that the abstract contains all the evidence. 1341. Assignment of errors, when necessary. 1342. Of the sufficiency of the assignment of errors. 1343. Of service and filing the assignment of errors. 1344. Of the form of the assignment and of the effect of failing to argue assignments. 1345. Of the argument. 1346. Of the duty of the clerk. 1347. Of motions. 1348. Of affirmance of cases in the supreme court. 1349. Of reversal of cases in the supreme court. 1350. Of the effect of judgment in supreme court and of remitting part of judgment, etc. 1351. Of the effect of a prior decision on a second appeal. 1352. Of proceedings in the lower court after a cause is reversed and remanded. 1353. Of power of supreme court and of executions therefrom Restoration of property. 1354. Of opinions of the court Rules. 1355. Cases where no motion for a new trial is necessary, etc. 1356. Of the lien of the judgment of the supreme court, etc. 1357. Of the procedendo Of decree, withdrawing papers. 1358. When causes will be tried de novo in the supreme court. 1359. Of regulations as to the method of trial. 1360. What must appear of record to warrant a tr'.al de novo. 1361. Of the judge's certificate to the evidence, its requisites, and when it must be filed. 1362. Of the clerk's certificate. 1363. Of the hearing and determination of appeals in equitable actions. 1364. Of questions as to the admissibility of evidence. 1365. When the case will be remanded. 1366. Of the decree in a cause triable de novo. 1367. Of proceedings in the lower court in an equitable action after it is remanded. 1368. Questions not raised in the court below, will not be con- sidered on appeal. 1369. Of the presumptions which obtain with reference to the pro- ceedings of the court below. CONTENTS. XIX Sec. 1370. Same Where the evidence is not all before the court. 1371. What is error without prejudice Generally. 1372. When rulings upon demurrer, or with reference to plead- ings will be without prejudice. 1373. Of error without prejudice in rulings upon the evidence, etc. 1374. Of error without prejudice in the giving of instructions. 1375. Of the discretion of the court below, etc. 1376. Of the petition for rehearing, when filed. 1377. Of the argument. 1378. Of the action of the court. CHAPTER LXXXV. STATUTES AND RULES REGULATING THE PRACTICE IN THE SUPREME COURT. Sec. 1379. Of the adoption of rules. 1380. Of the organization. 1381. Of the jurisdiction. 1382. Of the terms. 1383. Of appeals. 1384. Of docketing causes. 1385. Of advancing causes. 1386. Of abstracts, transcripts and records. 1387. Of supersedeas bonds. 1388. Of the trial, decision and execution. 1389. Of motions. 1390. Of briefs and arguments. 1391. Of decisions and opinions. 1392. Of records and reports. 1393. Of judgments and decrees. 1394. Of executions. 1395. Of rehearings. 1396. Of preparing and printing abstracts, transcripts, briefs, ar- guments and petitions for rehearing. 1397. Of appeals in criminal actions. 1398. Of the construction and modification of the rules. 1399. Of the distribution of printed matter. 1400. Of the return of papers and exhibits. 1401. Of costs. 1402. Of the admission of attorneys. CHAPTER LXXXVI. OF THE UNWRITTEN PRACTICE OF THE SUPREME COURT. Sec. 1403. Preliminary statement. 1404. Of advancing causes. 1405. Of oral arguments. 1406. Of the submission of causes. 1407. Of setting aside submissions. XX CONTENTS. Sec. 1408. Of restraining orders. 1409. Of alimony in divorce proceedings. 1410. Of attorney's fees. 1411. Of costs. CHAPTER LXXXVII. OF THE FORCIBLE ENTRY AND DETENTION OF REAL PROP- ERTY. Sec. 1412. Of jurisdiction of the action. 1413. When the action lies. 1414. Parties to the action. 1415. Of the notice to quit. 1416. Of the petition. 1417. Of service of notice Appearance, etc. 1418. Of trial When by equitable proceedings.. 1419. When action barred, etc. 1420. Of the judgment. KINNE'S PLEADING AND PRACTICE. CHAPTER XLVIII. OF GARNISHMENT. Sec. 771. Garnishment, how effected. 772. Of taking the answer by the sheriff, 773. When garnishee to appear in court. 774. Who may be garnished. 775. Who can not be garnished. 776. Of proceedings when garnishee dies. 777. Of fees and mileage of the garnishee. 778. Of waiver by garnishee of his exemption. 779. Penalty for failure to attend and answer. 780. Of showing cause against the issuance of an execution, set- ting aside default. 781. Of the garnishee's liability for costs. 782. Of the garnishee's exonerating himself. 783. Of the garnishee's liability for interest. 784. Of the position of the garnishee and his rights generally. 785. Of controverting the answer of the garnishee and of trial. 786. Of notice to the principal defendant. 787. Of showing the exemption of the property, etc. 788. When judgment will be rendered against a garnishee. 789. Of the form of the judgment. 790. Of debts due by negotiable paper. 791. Of conclusiveness of the judgment, appeal, etc. Section 771. Garnishment, how effected. At- tachment by garnishment creates no lien on the property, but the remedy is of a personal nature against the garn- ishee. 1 It is effected by informing the supposed debtor, i Moore v. Walker, 46-164; McConnell v. Denham, 72-494. 1 Vol. II-l 2 GARNISHMENT. [ 771. or person holding the property, that he is attached as garnishee, and by serving him with an original notice in the manner provided for in civil actions, forbidding his paying any debt due by him to the defendant, or there- after to become due, and requiring him to retain posses- sion of all property of the defendant, then or thereafter being in his custody or under his control, in order that the same may be dealt with according to law; and the sheriff must summon such persons as garnishees as the plaintiff may direct. And unless three answers are re- quired to be taken they must be cited to appear on the first day of the next term. 2 The plaintiff may in writ- ing direct the sheriff to take the answers of the garn- ishees, and attach such answers to his return to the writ, 3 Such direction should be indorsed on the writ and may be as follows: FORM OF DIRECTION OF PLAINTIFF TO SHERIFF TO TAKE ANSWER OF GARNISHEE. The sheriff to whom the within writ of attachment is directed, is hereby ordered to take the answer of (here name person) garnished herein in the manner provided by law, and attach said answer to his return on the within writ. Dated the day of , 18. , plaintiff. This notice may be signed by the attorney of the party, and it may also be written on a separate paper, in which case it must be entitled in the cause and the form changed accordingly. The notice of garnishment may be in the following form: FORM OF NOTICE OF GARNISHMENT. Title, Venue. To (here insert names of parties garnished) : You, and each of you, are hereby notified that you are attached as garnishees in the abov entitled cause, and that you are forbidden to pay any debt due by you to the defendant therein, or which may hereafter become due, and that you are required to retain possession of all property of the said de- 2 Code, Sec. 3935; Van Fossen s Code, Sec. 3935; Conable v. v. Anderson, 8-251. Hylton, 10-593. 772. J GARNISHMENT. 3 fendant now, or hereafter, being in your custody or under your control, in order that the same be dealt with according to law. (When the sheriff has no direction to take the answer the following must be added, and it may be when the answer is taken if it is desired to have the garnishee present at court.) And you are further notified to appear at the next term of said court on the first day thereof, to be commenced on the day of , 18 , at the court house in said county, then and there to answer such interrogatories as may be propounded to you, or you will be liable to pay the entire judgment which the said plaintiff has obtained, or eventually obtains, against said defendant. , sheriff of county, Iowa. 772. Of taking the answer by the sheriff. When the sheriff is directed to take the answer of the garnishee he must first administer to him the following oath: 4 FORM OF OATH ADMINISTERED BY SHERIFF TO GARNISHEE. You do solemnly swear (or affirm) that in the case of v. , in which you are attached as garnishee, you will true answers make to the questions propounded to you as such garnishee, so help you God. The deputy sheriff has the same power as the sheriff to administer the oath and take the answers. 5 After the oath is administered the officer must propound the fol- lowing questions in writing, and write the answer to each thereunder. 6 FORM OF QUESTIONS TO BE PROPOUNDED TO GARNISHEE. 1. Are you in any manner indebted to the defendant in this suit, or do you owe him money, or property, which is not yet due? if so, state the particulars. Answer (here insert answer). 2. Have you in your possession or under your control, any prop- erty, rights or credits of the said defendant? if so, what is the value of the same, and state all the particulars. Answer (here insert answer). 3. Do you know of any debts owing to the said defendant, whether due or not due, or any property, rights or credits belonging to him and now in the possession or under the control of others? if so, state the particulars. Answer (here insert answer). * Code, Sec. 3935. e Code, Sec. 3939. e Code, Sees. 499, 510 4 GARNISHMENT. [ 773. (After the answers are written out they should be signed and sub- scribed as shown below.) I do solemnly swear that I have made full and true answers to the above questions, touching the matter wherein I have been attached as garnishee, so help me God. Subscribed and sworn to before me, and in my presence by , this day of , 18. , sheriff of county, Iowa. The notice of garnishment, and questions and answers of the garnishee should be properly marked as exhibits and attached to and made a part of the officer's return to the writ 7 773. When garnishee to appear at court. If the garnishee refuses to answer fully and unequivocally, all the foregoing interrogatories, he must be notified and re- quired to appear and answer on the first day of the next term of court, and he may be so required in any event if the plaintiff notify him to that effect. 8 The sheriff can not garnish a party nor take his answer without having a writ of attachment. 9 It is competent for a corporation aggregate to answer in writing, or through some officer or agent authorized to do so and cognizant of the facts. 10 It is held that if the notice be served on the garnishee it is valid although it does not require him to appear on the first day of the next term to answer. 11 The garnish- ment process may be served before service of the notice of the commencement of the action. 12 The questions propounded to the garnishee in court may be the same as those the sheriff is required to ask, or any others the court may deem right and proper. 13 And it is within the discretion of the court to require that the questions to be propounded to the garnishee be written out and sub- mitted to the court before being answered. 14 A wife 7 Code, Sec. 3939. 10 Bailey v. U. P. R. Co., 62-354. s Code, Sees. 3935, 3940; Thomp- n Gilmor v. Cohn, 71 N. W., 244. son v. Silvers, 59-670; Westphal v. 12 Phillips v. Germon, 43-101. Clark, 42-371; Parmenter v. Childs, is Code, Sec. 3941; Walker v. 12-22; Allison v. C., B. & Q. R. Co., Irwin. 62 N. W., 785. 76-209. 14 Elwood v. Crowley, 64-68. 9 Van Fossen v. Anderson, 8- 251. 774.] GARNISHMENT. 5 garnished as a debtor of her husband, is not exempt from answering questions touching such indebtedness, on the ground that such answers would be testimony against her husband, as it could not be regarded as against her husband's interest that his property should be subjected to the payment of his debts. 15 The garnishee may be asked any questions tending to reveal the true character and consideration of the transaction. 16 He may make special answer for his own benefit, and is not obliged to assume the responsibility of a categorical answer to the general questions, but may explain the circumstances in which he stands. 17 And he has the right to have the cor- rectness of an interrogatory adjudicated by the court, and is not bound to submit to any and every conceivable question without objection, or if he objects, become liable to pay the entire debt of the principal action, in case his objection shall prove to be unfounded. 18 When the garnishee appears in pursuance of notice, the court will appoint a commissioner to take his answer on the oral motion of the plaintiff, his attorney or the garnishee. 19 The creditor has a right to examine the garnishee per- sonally, and a sworn answer of a garnishee may be stricken from the files. 20 774. Who may be garnished. A sheriff or con- stable may be garnished for money of the defendant in his hands. 21 So also may a judgment debtor of the de- fendant, when the judgment has not been previously as- signed on the record, or by writing filed in the office of the clerk, and by him minuted as an assignment on the margin of the judgment docket. An executor may be garnished for money due from the decedent to the de- fendant. 22 So also a fund in court may be garnished by leaving with the clerk of the court a copy of the writ of is Thompson v. Silvers, 59-670. 21 Code, Sec. 3936; Patterson v. iBebb v. Preston, 1-460. Pratt, 19-358; Reifsnyder v. Lee, "Bebb v. Preston, 3-325; Same, 44-101; Com. Ex. Bk. v. Mc T .eod, 1-460. 65-665; Hoffman v. Wetherell, 42- is Sawyer v. Webb, 5-315. 89; Minthorn v. Hemphill, 73-257. i Thomas v. Hoffman, 62-125. 22 Code, Sec. 3936; see Clark v. 20 Penn v. Phelan, 52-535. Shrader, 41-491. 6 GARNISHMENT. [. 774. attachment, with a notice that he is attached, specifying the fund. 23 All private corporations may be garnished. 24 A notice of garnishment directed to and served on one member of a partnership will not hold a debt due by the firm to the defendant, but it will support a judgment against the firm as garnishees when it is directed to the firm, and served on a member who answers in behalf of the firm. 25 A trustee can be garnished, and the surplus money arising from the sale under a trust deed held, and such surplus applied to satisfy the debt of the person entitled thereto. 26 An agent may be garnished and a fund in his hands held. 27 A mortgagee in possession of chattels may be garnished, and required to answer as to the amount of his claim yet unpaid, the amount and value of the property, and may be held responsible for the sale and disposition of the mortgaged property over and above the payment of his own claim. 28 But a mortgagee of personal property not in his possession, can not be garnished. 29 The guests of an inn-keeper may be garn- ished in an action by a creditor against the inn-keeper but if the inn-keeper requires the guests to pay, or pledge payment in advance, no indebtedness arises that is the subject of garnishment, and this is so, though prior to such advanced payment or pledge, the guests may have been served with process of garnishment; such a garn- ishment would only hold the amount due in the ordinary- way from the guests. 30 Money belonging to a principal, deposited by an agent in a bank as his agent, can not be garnished by creditors of the agent. 31 Where mort- gaged chattels have been seized by an officer to be sold 23 Code, Sec. 3937; Patterson v. 28 Torbet v. Hayden, 11-435; Pratt, 19-358. Campbell v. Leonard, 11-489; z* Taylor v. B. & M. R. R. Co., Downer v. Garretson, 24-351; 5-114; Wales v. Muscatine, 4-302; Fountain v. Smith, 70-282; Brain- Burton v. Dist. Twp., 11-166; Bu- ard v. Van Kuren, 22-261; Davis v. chanan County Bk. v. C., R. I. F. Wilson, 52-187. & N. W. R. Co., 62-494. 29 Curtis v. Raymond. 29-52; 25 Bean v. Barney, 10-498. First Nat'l Bk. v. Perry, 29-266. 28 Cook v. Dillon, 9-407. 30 Caldwell v. Stewart, 30-379. 27 First Nat'l Bk. v. D. & St. P. 31 DCS Moines Cotton Mill Co. v. R. Co., 45-120. Cooper, 61 N. W., 1084. 775.] GAKNTSHMENT. 7 under the mortgage, the balance of the proceeds, after satisfying the mortgage, is the property of the mort- gagor, and subject to garnishment in the sheriff's hands. 32 But the garnishment of a judgment debtor does not affect the rights of claimants, but simply the lia- bility of the garnishee. 33 Ordinarily, one indebted to, or having property of another, may be garnished. 34 The landlord's interest in growing crops can be reached only by garnishment of the tenant. 35 A garnishment will be valid as against a fund of which the garnishee is the equitable custodian. 36 A party who it is claimed has fraudulently purchased property may be garnished by the creditor of the vendor. 37 And a mortgagee who it is claimed fraudulently took his mortgage may be garn- ished by a creditor of the mortgagor. 38 775, Who can not be garnished. A municipal or political corporation can not be garnished, and this rule is universal in its application, and the objection may be made at the time or before filing answer. 39 Prior to the revision of 1860, a municipal corporation could be garnished, but if it was exempt, it was a privilege which it alone could assert; it could not be interposed by the debtor. 40 A receiver can not be garnished; property in his hands, being in custody of the law, can only be reached by proper petition to the court. 41 The holders of certain notes and accounts, assigned to them for col- lection, and the proceeds to be applied on certain speci- fied debts of the assignor, were held not subject to garn- ishment by other creditors of the assignor. 42 A county 32 Hoffman v. Wetherell, 42-89. so Code, Sec. 3936; Jenks v. 33 Howe v. Jones, 57-130. Osceola, 45-554; Clapp v. Walker, 34Kesler v. St. John, 22-565; 25-315; Caldwell v. Stewart, 30- Nat'l Bk., etc., v. Chase, 71-120; 379. see Deere v. Young, 39-588. *<> Clapp v. Walker, 25-315; Bur- ss Howard County v. Kyte, 69- ton v. Dist. Twp., 11-166; Wales v. 307. Muscatine, 4-302. 36 Des Moines County v. Hink- 41 Martin v. Davis, 21-535; Mc- ley, 62-637. Gowan v. Myers, 66-99. 37 G-oll & Frank Co. v. Miller, 87- 42 Van Winkle v. I. I. & S. F. Co., 426; Liddle v. Allen, 90-738. 56-245. ss Citizens State Bk. v. Council Bluffs Fuel Co., 89-618. 8 GARNISHMENT. [ 775 can not be garnished. 43 A judgment defendant in an action in the district court can not be attached as garn- ishee, and subject to a judgment in a garnishment pro- ceeding in the circuit court. 44 The preference which the law gives the creditors of a partnership to be first satis- fied out of the firm property, will be protected in pro- ceedings by garnishment by firm and individual cred- itors. 45 Real estate of a debtor, the title to which is in another person, can not be reached by garnishment. 46 Personal property under the control of the garnishee but situated out of the State where the action was brought can not be reached by this process. 47 Nor can the court in a garnishment proceeding against a non-resident acquire such jurisdiction over him while he is temporarily in the State, as to reach indebtedness which is not in any way connected with an office or agency of the garnishee in this State. 48 Where a mortgage authorized the appoint- ment of a receiver the rents accruing after his appoint- ment are not subject, to garnishment by other creditors. 4 " An action will lie against one who maliciously and with- out probable cause garnishes the exempt earnings of his debtor, knowing them to be exempt, with the purpose of harassing the latter's employers, and thereby compelling him to pay the debt out of such exempt money in order to avoid discharge. 50 The fact that plaintiff stipulates to dismiss an action on payment by the defendant of a cer- tain sum to other persons, does not, in the absence of fraud, render such money subject to garnishment by his creditors. 51 A notice of garnishment directed to the mayor, recorder and treasurer of an incorporated city, by their individual names and name of office, respectively, informing them that they, and each of them, were "at- 43 County of Des Moines v. Hink- 47 Montrose Pickle Co. v. Dodson ley, 62-637. & Hills Mfg. Co., 76-172. 44 McGuire v. Pitts, 42-535. 4s German Bk. v. American F. 45 Switzer v. Smith, 35-269; see Ins. Co., 83-491. Harlan v. Moriarty, 2 G. Gr., 486; 49 Stetson v. Nor. Inv. Co., 70 N. Robinson v. Moriarty, 2 G. Gr., W., 595. 497. BO Nix v. Goodhile, 63 N. W., 701. Baxter v. Myers, 85-328. si Phillips v. Van Horn, 68 N. W., 452. 776,777.] GAENISHMENT. 9 tarhejd and held as garnishees as a debtor and a person holding property of the defendant, did not give the court jurisdiction of the city as garnishee. 52 Where, by the terms of a policy of fire insurance, the same became forfeited and void, the company was not liable to be garnished as a debtor of the policy holder, there being no legal indebtedness on the part of the com- pany. 53 A judgment for damages done to a homestead can not be garnished to satisfy another judgment which is not a lien on the homestead. 54 And when a, judgment debtor and creditor are both residents of this State, and the creditor seeks, in tht- courts of another State, to subject to the payment of his judgment the exempt wages of the debtor due him from a railroad company, doing business in both States, he will be enjoined from so proceeding and may be punished for violating such injunction. 55 Ordinarily an executor or an administrator can not be garnished until payment of the creditor's claim is ordered, or the estate fully set- tled and an order of distribution made. 56 776. Of proceedings when garnishee dies. If the garnishee dies after he has been summoned by garnish- ment, and pending the litigation, the proceedings may be revived by or against his heirs or legal representa- tives. 57 777. Of fees and mileage of the garnishee. When the garnishee is required to appear at court, unless he has refused to answer before the sheriff, he is entitled to the pay and mileage of a witness, and may in like man- ner require payment beforehand in order to be made liable for non-attendance. 58 But a failure to pay fees and mileage does not relieve the garnishee from the ob- 62 Clafflin v. Iowa City, 12-284. Willard v. Sturm, 65 N. W., 847. 53 Victor v. Hartford F. Ins. Co., se Boyer v. Hawkins, 86-40; 33-210; see McArthur v. Garman, Shepherd v. Bridenstine, 80-225. 71-34. 57 Code, Sec. 3938. 54 Mudge v. Lanning, 68-641; see 58 Code, Sec. 3942; Westphal v. Kaiser v. Seaton, 62-463. Clark, 42-371; Stockberger v. Lind- 55 Teagler v. Landsley, 69-725; sey, 65-471. Hager v. Adams, 70-746; and see 10 GARXismiEXT. [778,779,780. ligation to retain in his possession the property of the defendant, under his control, and to withhold payment of any money due him, and such fees and mileage may subsequently be paid or tendered and his attendance at court thus secured. 59 The power to compel the attend- ance of a garnishee is not limited to seventy miles as in the case of witnesses. 60 Where a garnishee, without de- manding his fees and mileage, attends court, he can not then demand, as a condition to testifying, his fees and mileage; whether he might not, after appearance, be en- titled to one day's attendance before answering, has never been decided by our supreme court, but it would seem that he might insist on such payment. 61 778. Of waiver by garnishee of his exemption. The objection that the garnishee is exempt from the process of garnishment is a privilege which he alone can assert, 62 and the garnishee may waive the exemption. 63 779. Penalty for failure to attend and answer. If the garnishee has been duly summoned, and his fees paid or tendered, if demanded, and he fails to appear and answer, without sufficient excuse for his delinquency, he will be presumed to be indebted to the defendant to the full amount of the plaintiff's demand, and his default may be taken and judgment rendered thereon. 64 But for a mere failure to appear, he is not liable to pay tne amount of the plaintiff's judgment until he has had an opportunity to show cause against the issuing of an exe- cution. 65 Nor should he, failing to appear, be taxed with interest and costs. 66 780. Of showing cause against the issuance of execution Setting aside default. A garnishee in de- 69 Same as No. 58. Clark, 42-371; Parmenter v. Childs, eo Same as No. 58. 12-22; Thomas v. Hoffman, 62-125; 6i Stockberger v. Lindsey, 65-471. Thompson v. Silvers, 59-670; Mc- ea Wales v. Muscatine, 4-302; Donald v. Finley. 87-529. Burton v. Dist. Twp., 11-166. es Code, Sec. 3943; Langford v. esciapp v. Walker, 25-315; Tay- Ottumwa W. P. Co., 53-415; Pad- lor v. B. & M. R. R. Co., 5-114; den v. Moore, 58-703; McPhail v. Jenks v. Osceola, 45-554; Des Hyatt, 29-137. Moines County v. Hinkley, 62-637. ee Langford v. Ottumwa W. P. e* Code, Sec. 3943; Westphal v. Co., 53-415. 780.] GARNISHMENT. 11 fault must be served with notice to show cause why exe- cution should not issue against him, and this notice is not a scire facias. 67 It may be in the following form : FORM OF NOTICE TO GARNISHEE TO SHOW CAUSE. Title, ) Venue, f To , garnishee: You are hereby notified that on the day of , 18 , by the judgment of the court, rendered in the above entitled action, you were made liable, as a garnishee, to pay the judgment rendered by said court in favor of plaintiff, and against , for the sum of dollars; and you are hereby further notified to be and appear, before noon of the second day of the term, 18 , of said court, which will commence on the day of , 18 , at the court house in , in said county, and show cause why execution should not issue against your property to satisfy said judgment. , attorney for plaintiff. In no case, however, can a judgment be rendered against a garnishee until ten days after service of no- tice on the principal defendant. 68 It is the duty of the garnishee to show that he has a good excuse for being in default, that he was not acting in contempt of court, and that he had a good defense, which may be made to ap- pear by answering the statutory questions, denying his indebtedness. 69 The showing of the garnishee for set- ting aside the default and against the issuance of an exe- cution should be in writing under oath, and should set forth fully the facts, and be accompanied by a motion asking that the default be set aside. The motion and showing may be as follows: FORM OF MOTION TO SET ASIDE DEFAULT. Title, > Venue. $ The undersigned garnishee in the above entitled cause moves the court to set aside the default and judgment entered against him in this cause, and that no execution be issued on such judgment, and for cause erFifield v. Wood, 9-249; Evans Williams, 61-612; Wise v. Roth- v. Mohn, 55-302; Langford v. Ot- schild, 67-84; Hamilton Buggy Co. tumwa W. P. Co., 53-415; Padden v. v. Iowa Buggy Co., 88-364; Ammer- Moore, 58-703; Duncan v. Sanga- man v. Vosburg, 70 N. W., 620. mon F. Ins. Co., 35-20. 69 Parmenter v. Childs, 12-22; es Code, Sec. 3947; Williams v. Evans v. Mohn, 55-302. 12 GARNISHMENT. [ 780. of such motion presents the affidavits of himself and , which are attached hereto and made a part of this motion. , garnishee. (The motion may be signed by the attorney of the garnishee.) FORM OF SHOWING TO SET ASIDE DEFAULT AND AGAINST THE ISSUANCE OF EXECUTION. State of Iowa, ) >DD. County, j j > garnishee in the above entitled cause, being duly sworn, on oath say:' That as such garnishee I fully expected to be present at this court on the - day of , 18 (the time the notice re- quired him to appear), and give my answer as such garnishee; that I was on the morning of said day taken violently ill and was then and ever since have been, until to-day, unable to leave my bed (or, as the case may be, state the facts fully). That at the time I was garnished, and ever since that time, I was not and have not been in any manner indebted to the defendant in said action, nor have I during said time owed him money or property which is not due, nor have I during said time had in my possession or under my control, any rights, property or credits of said defendant, nor do I know of any debts owing to said de- fendant, due or not due, nor of any property, rights or credits belong- ing to him and now in the possession or under the control of others. That my failure to be present in accordance with the notice served on me w^s not due to any desire to disobey the orders of this court, but was unavoidable for the reasons heretofore given. The affidavit should not only be signed but sworn to, and it should be accompanied by one or more affidavits corroborating the statements of the garnishee. If the showing to set aside the default is supported only by the affidavit of the garnishee, the court may refuse to set it aside. 70 A judgment by default against a garnishee who failed to appear, constitutes no bar to a subsequent ac- tion against him on the same debt for which he was gar- nished, by one claiming to own the same by assignment from the defendant in the attachment proceedings prior to the garnishment. 71 Where a garnishee has been re- quired to make his answer more specific, and, upon fail- ure to do so, judgment has been rendered against him by default, a motion to set aside the default must be made at the term when it was entered. 72 The notice to show TO Parmenter v. Childs, 12-22. 72 S'camahorn v. Scott, 42-529. 71 McPhail v. Hyatt, 29-137. 780.] GARNISHMENT. 13 cause may be served during the term at which the gar- nishee is required to appear. 73 Where a garnishee, after answering the statutory questions, was summoned be- fore a referee for further examination, but refused to answer, it was held that plaintiff might have taken judg- ment against her, but failing to move for judgment, or having moved and not insisting on a ruling on his mo- tion, but procuring an order for the further appearance and examination of the garnishee, she had a right to as- sume that no judgment would be rendered against her until such further examination had been completed, and it was further held on appeal to the supreme court from the ruling of the court below, excusing the garnishee from answering further, that judgment could not be rendered against her in the supreme court, although it reversed the ruling of the lower court. 74 Service of an original notice of the action alone will not do away with the necessity for serving notice on the principal defend- ant. 75 But the principal defendant may by appearing waive the service of notice. 76 When the court appoints a commissioner to take the answer of a garnishee, with- out fixing a time or place for such answer to be made, the garnishee should not be held to be in default for failure to appear and answer, unless notified by the commis- sioner of the time and place fixed for taking his answer. 77 Where the garnishee fails to appear in response to the notice to show cause why execution should not issue, no new judgment need be entered, and no motion is neces- sary. 78 Where the court has not acquired jurisdiction of the garnishee by proper notice, the fact that the gar- nishee, when served with notice to show cause, appears and protests that the court has not jurisdiction, will not render the judgment valid. 79 If the garnishee has appeared but failed to answer in 73 Langford v. Ottumwa W. P. ?T Thomas v. Hoffman, 62-125. Co., 53-415. 78 Langford v. Ottumwa W. P. 74 Thompson v. Silvers, 59-670. Co., 53-415. 75 Wise v. Rothschild, 67-84. 79 Padden v. Moore, 58-703. 76 Hamilton Buggy Co. v. Iowa Buggy Co., 88-364. 14 GARNISHMENT. [ 781, 782. accordance with an order of the court, judgment on de- fault may be rendered against him under section 3788 of the code, and it can only be set aside as provided in section 3790 of the code. 80 But where the garnishee ap- pears in response to the notice to show cause and makes a proper showing, the default will be set aside. 781. Of the garnishee's liability for costs. Or- dinarily a garnishee is not liable for costs, but if he re- fuses to answer, or seeks to avoid a fair investigation of his liability to the party attached, he will be charged with the costs caused by such conduct. 81 The failure of the garnishee to pay into court before answering does not render him liable for costs. 82 782. Of the garnishee's exonerating himself. The garnishee may at any time after answer exonerate himself from further responsibility by paying over to the sheriff the amount owing by him to the defendant, and placing at the sheriff's disposal the property of the de- fendant, or so much of said debts and property as are equal to the value of the property to be attached, all of which may afterward be treated as though attached in the usual manner. 83 But a judgment against a gar- nishee will not be discharged by the payment of a sum less than the amount of such judgment, even though the judgment be rendered for a greater sum than is actually due. 84 When property is turned over by the garnishee to an officer upon certain conditions, such conditions should be recognized when shown to the court and carried out. 85 But the garnishee can not be held liable for not turning over property to the sheriff when he holds it under a lien which has not been satisfied. 86 Nor for property not so Scamahorn v. Scott, 42-529. 172; Kramer v. Adams, 63 N. W., si Randolph v. Heaslip, 11-37; 180; B. & M. R. R. Co. v. Hall, Fifield v. Wood, 9-249; Fagg v. 37-620. Parker, 11-18. 84 B. & M. R. R. Co. v. Hall, 37- 82 Randolph v. Heaslip, 11-37. 620. ss Code, Sec. 3944; Randolph v. 85 Buckham v. Wolf, 58-601. Heaslip, 11-37; Montrose Pickle Co. ss Smith v. Clark, 9-241. v. Dodson & Hills Mfg. Co., 76- 783, 784.] GARNISHMENT. 15 in his possession, nor when he only has a right of pos- session. 87 783. Of .the garnishee's liability for interest. A garnishee is not chargeable with interest on funds in his hands after the service of notice of garnishment, unless the presumption which obtains that they were not used by him from that time, but kept as a separate fund to answer the judgment of the court, is in some manner over- come, and this rule is not changed by the provisions of the code, section 3944. 88 784. Of the position of the garnishee and his rights generally. A garnishee occupies the relation of defendant to the principal action, and can not, it seems, take a change of venue; and when either of the parties to the principal action have taken a change of venue in which the garnishee has not joined, the cause as to him will be heard in the court where it was commenced. 89 A garnishee is, however, not a party to an action in such a sense that he is required to make defense for either of the parties, between whom he is supposed to be indiffer ent as to the merits of the case, nor is he bound to inter- pose his exemption as a defense, and if he does not do so, and a judgment is rendered against him, it can not be at- tacked in a collateral proceeding for the purpose of again holding the garnishee liable to the principal defendant. 90 But if a garnishee fraudulently procures himself to be garnished without the knowledge of his creditors, for a debt, the proceeds of which are exempt, and does not set up such exemption or notify his creditors, he is guilty of fraud, and will not be released from liability by a judg- ment against him. 91 A garnishee can not be made liable for property which is never in his possession or under his control. 92 The garnishee occupies the same position as if ST Smalley v. Miller, 71-90. 43-385; Leiber v. U. P. R. Co., 49- ss Moore v. Lowrey, 25-336. 688; Wignall v. Union C., etc., Co., saWestphal v. Clark, 42-371; 37-129. Miller v. Mason, 51-239. 9 * Smith v. Dickson, 58-444. o Moore v. C., R. I. & P. R. Co., 2 Kiggins v. Woodke, 78-34. 16 GAENISHMENT. [ 784. the defendant had sued him. 93 And while his position can be no worse than it would be if the defendant was en- forcing his claim, neither can he occupy any better posi- tion. 94 He must not be placed in a situation, except by his own negligence or carelessness, where he will be com- pelled to pay the debt twice. 95 He must pay no money to his creditor until he is discharged as gar- nishee; if he does, he may be compelled to pay it again. 96 He can not be held liable for a debt which had no existence at the time of the garnishment. 97 And in order to make the garnishee liable it must appear that he was indebted to the defendant when the notice was served, or afterward. 98 If his indebtedness is only con- ditional, judgment should not be rendered against him until the condition is fulfilled. 99 When it was agreed by and between the mortgagor, the mortgagee and attach- ing creditors, that the property should be sold in bulk and the proceeds applied upon the attachment, it was held that the proceeding amounted to a transfer of the equity of redemption of the mortgagor, and took priority over a subsequent garnishment by a second attaching creditor, of the surplus in the sheriff's hands after the satisfaction of the first mortgage. 1 A garnishee who has notice of an assignment of a negotiable debt before answering, and fails to set up that fact in defense, and allows judgment to go against him, can not plead such judgment against the assignee. 2 And where the. credit or of the garnishee has, by assignment in any form, appro- priated the property or indebtedness, and the assignment has been accepted by the assignee, the garnishee can not be held liable. 3 The burden is on the defendant, or gar- 93Fifield v. Wood, 9-249; Smith McCord v. Beatty, 12-299; Houston v. Clark, 9-241; Walters v. Wash- v. Wolcott, 7-173. ington Ins. Co., 1-404; Williams v. 96 Hughes v. Monty, 24-499. Housell, 2-154; Burton v. Dist. 97 Thomas v. Gibbons, 61-50. Twp., 11-166. 98 Weire v. Davenport, 11-49. * Smith v. Clark, 9-241; Fifield 99 Williams v. Young, 46-140. v. Wood, 9-249; Hartington v. i Phelps v. Winters, 59-561. Risdon, 43-517; Victor v. Hartford 2 Dalhoff v. Coff man, 37-283; Ins. Co., 33-210; Cox v. Russell, 44- see Bailey v. U. P. R. Co., 62-354. 556; Metcalf v. Kincaid, 87-443. a Smith v. Clarke, 9-241; see 95 Burton v. Dist. Twp., 11-166; 785-] GARNISHMENT. 17 nishee, to show that the amount due the defendant in the principal action is exempt as earnings, and unless that fact clearly appears, the debt will be held subject to the garnishment. 4 And where an attorney is garnished for money collected by him on a note, and he has knowledge of facts which, if pleaded and proven, would have pro- tected the rights of an assignee of such note, he should have set up such facts in his answer. 5 If issue is not taken on the garnishee's answer at the term it is filed, the garnishee is entitled to notice. 6 The fact that one or more terms intervene between the garnishment and the judgment against the garnishee does not show an abandonment of the proceeding. 7 The garnishee will not be held liable for the proceeds of exempt property of the debtor, held by him at the time of the garnishment under a mortgage which he has sold, or allowed to be sold, for the debtor's benefit. 8 So long as money paid into court by a garnishee has not been paid over to the execution plaintiff, a third party claiming it may inter- vene in an action, and assert his claim to the money. 9 Where one delivered his property to a railroad company for shipment, and it was garnished and held the goods, and neither the company nor the officer knew the goods were exempt, and the officer, on learning that fact, re- leased them, it was held that neither the creditor, the company nor the officer were liable to the judgment debtor. 10 785. Of controverting answer of the garnishee and of trial. When the answer of the garnishee is made either before the sheriff or at court, the plaintiff may controvert by pleadings filed, any fact or facts con- tained in the answer, and may in such pleadings specif- ically set out the facts relied on by him to show the lia- bility of the garnishee, and the issue thus joined must Moore v. Lowrey, 25-336; Phillips 1 Phillips v. Germon, 43-101. v. Germon, 43-101. 8 Brainard v. Simmons, 67-646. * Oakes v. Marquardt, 49-643. Code, Sec. 3928; Edwards v. 6 Large v. Moore, 17-258. Cosgro, 71-296. 6 Kienne v. Anderson, 13-565. 10 Hynds v. Wynn, 71-593. Vol. II-2 18 GARNISHMENT. [ 785. be tried in the usual manner, and the answer of the gar- nishee is competent testimony on such trial. 11 The plaintiff's pleading will be sufficient if it denies the answer of the garnishee. 12 The proceeding is to be tried as an ordinary proceeding, and none but legal issues can be tried therein. 13 The parties have a right to have a general verdict when the issue is tried to a jury. 14 It is not permissible to further examine the garnishee on a jury trial on issues joined on the garnishee's answers since new issues might be opened, and for the further rea- son that the examination of the garnishee is not a matter for the jury. 15 The credit and weight to be given to the answer of the garnishee must be left for the determina- tion of the jury, without instructions or reference thereto from the court. 16 Though the answer of the garnishee may positively deny any indebtedness, yet the facts and circumstances disclosed in the answer may show that he is indebted and liable, and such facts and circumstances may be relied on by the plaintiff to establish liability. 17 The liability of the garnishee will never be presumed, nor will he be charged on his answer alone, unless it con- tains a clear admission of a debt due to, or the possession of money or property of the defendant, not exempt from execution. If the question of his liability is left in rea- sonable doubt, judgment should be rendered in his favor. 18 If the garnishee's answer is not controverted, it must be taken as true. 19 If the garnishee has a lien on attached property in his hands, he has a right to hold it until such lien is discharged. 20 The trial of an issue upon the answer of the garnishee denying indebtedness, must take place in the court wherein the principal action 11 Code, Sec 3945; Drake v. Buck, McNanny, 37-75; Bean v. Barney, 35-472; Brainard v. Simmonds, 58- 10-498; Drake v. Buck, 35-472. 464; Easley v. Gibbs, 29-129. IT Bebb v. Preston, 1-460; Church 12 Henny Buggy Co. v. Patt, 73- v. Simpson, 25-408. 485. is Morse v. Marshall, 22-290; is Seers v. Thompson, 72-61. Smith v. Clark, 9-241; Farwell v. 14 Shadbolt & Boyd Iron Co. v. Howard, 26-381; Letts-Fletcher Co. Camp, 80-539. v. McMaster, 83-449; Kiggins v. . is Kelley v. Andrews 71 N. W., Woodke, 78-34. 251. I &*L4^ i/7 19 Bean v. Barney, 10-498. is Code, Sec. 3945; Fairfield v. 20 Smith v. Clark, 9-246. 785.] GARNISHMENT. 19 is pending, and the garnishee is not entitled to a change of venue to the county of his residence. 21 If the gar- nishee denies any indebtedness, and the plaintiff files a pleading controverting such answer, alleging in general terms an indebtedness, the garnishee can not object to the introduction of evidence, tending to show an indebt- edness, having failed to demur or move to make the plead- ing more specific. 22 If a garnishee after making his answer fails to move to be discharged, he must take no- tice of whatever is done in the case, and follow it until it is disposed of. 23 If the garnishee answers confessing an indebtedness, the defendant may make any objection that the indebtedness is exempt from execution a.gainst the debtor, or that the principal judgment is satisfied, or any other defense of like nature. 24 The pleading con- troverting the answer need not be sworn to. 25 The gar- nishee process only reaches the right which the defend- ant actually has in the property at the time it is sought to be attached. 26 Whether the facts show an indebted- ness to the principal debtor is a question of law, but if the answer is controverted and evidence introduced, the supreme court can not pass on the correctness of the de- cision unless all the evidence is before it. 27 Though the notice to a garnishee to appear and answer specifies the wrong court, yet, if answers are taken by the sheriff, under execution from the proper court, and such answers are duly returned, the court acquires jurisdiction to render judgment against the garnishee. 28 When a debt- or is garnished in a suit against a creditor, but no judg- ment has been rendered in the proceeding, he may, in defense to an action by the assignee of his creditor's claim, to whom such claim has been assigned after the 21 Miller v. Mason, 51-239; Smith 25 Code, Sec. 3586. v. Dickson, 58-444; see Westphal v. 26 Thomas v. Hillhouse, 17-67; Clark, 42-371, where it is intimated Huntington v. Risdon, 43-517, and a change of venue would lie. cases cited. 22 Ruby v. Schee, 51-422. 27 Sheppard v. Downing, 14-597. 23 Chase v. Foster, 9-429. 28 Fanning v. Minn. R. Co., 37- 24 Wales v. Muscatine, 4-302. 379. 20 GARNISHMENT. [ 785. garnishment, plead the pendency of such proceeding as a matter in abatement but not in bar of the action. 29 While a garnishment of an employer for wages of an employe will hold not only wages due, but such as after- ward become due, yet, as the employe, if a married man, is entitled to have ninety days' wages exempt by the code, section 4008, the employer is not liable to a judgment in such a case, unless it appears that at the time of the garnishment, or some time subsequent thereto, he had more than ninety days' wages in his hands. 30 The gar- nishee's answer is in the nature of evidence, and is not a part of the record unless made so by a bill of exceptions. 31 A garnishee procuring himself to be garnished without the knowledge of his creditor, for a debt the proceeds of which are exempt, and failing to plead such exemption, or notify his creditor so that he might do so, is guilty of a fraud and will not be released from liability by a judg- ment against him. 32 When a garnishee answered that he was informed and believed that the defendant was a married man living with his family, it was not sufficient to show the right of exemption; it should have been al- leged to be a fact and also that he was a resident of this State. 33 An indebtedness due from a resident of this State to a non-resident for services rendered outside of the State, is subject to garnishment in an action brought against such non-resident by publication. 34 The equity of redemption of the mortgagor of personal property, after condition broken, is subject to sale or transfer and passes under a general assignment, and after such as- signment, the mortgagee is not subject to garnishment in a suit against the mortgagor. 35 Judgment against a garnishee can not be properly entered where there is no return to the writ of attachment showing the fact of gar- nishment. 36 When the trial is required to determine the 29 Cllse v. Freeborne, 27-280. 3* Mooney v. U. P. R. Co., 60- so Davis v. Humphrey, 22-132. 346. si Brainard v. Simmons, 58-464. ss Gimble v. Ferguson, 58-414. 32 Smith v. Dickson, 58-444. se Rock v. Singmaster, 62-511; 33 Smith v. C. & N. W. R. Co., McDonald v. Moore, 65-171. 60-312. 785.] GARNISHMENT. 21 rights of all the parties, the question as to whether the garnishee is indebted to the defendant, is not to be pre- sented separate from that as to whether the debt in his hands is to be condemned for the payment of such debt. 37 Where the garnishee seeks in equity to have a judgment against him set aside, on the ground that the notice- is not sufficient to confer jurisdiction, the burden is not on him to show that he was not indebted, but is on the adverse party, and a notice to a garnishee requiring him to appear on any other day than the first day of the next term of court is void. 38 A judge can not, in the absence of an agreement, hear and determine in vacation a mo- tion for the discharge of a garnishee against whom a judgment has been rendered in a justice's court, and who appealed therefrom. 39 Where a garnishee received a note belonging to the principal debtor, with the under- standing that he should collect it and apply the proceeds to the payment of a debt owing to him by the principal debtor, and that the residue should be paid to another creditor of the principal debtor, but such creditor was not a party to the arrangement, it was held that such residue in the hands of the garnishee was subject to gar- nishment as the property of the principal debtor. 40 If the garnishee claims the fund in his hands as compen- sation for services rendered the principal debtor, it is incumbent on him to prove the value of such services, or that they were performed for a stipulated price. 41 Where the allegations pleaded to controvert the answer of a garnishee do not tend to establish his liability, they should be stricken out on motion. 42 The exemption laws of another State or Territory can not be pleaded, or re- lied on as a defense, either by the garnishee or judg- ment debtor in a garnishment proceeding in this State. 43 Where the garnishee before the execution was issued 37 Williams v. Williams, 61-612. Broadstreet v. Clark, 65-670; ss padden v. Moore, 58-703. Newell v. Hayden, 8-140; Leiber v. 39 Laughlin v. Peckham, 66-121. U. P. R. Co., 49-688; Mooney v. 40 Witter v. Little, 66-431. U. P. R. Co., 60-346; B. & M. R. Co. 41 Same as No. 40. v. Thompson, 31 Kan., 180 *2 McDonald v. Moore, 65-171. 22 GARNISHMENT. [ 786, 787. stated to the execution plaintiff that he was indebted to the execution defendant, and he would withhold payment until he could be served with notice of garnishment, he was not thereby estopped from denying that he was in- debted to the execution defendant at the time he was garnished. 44 While it is not held that a reply to the answer of the garnishee is necessary, yet, if no reply is filed, the issues are limited, and, in such case, fraud not having been pleaded, can not be submitted to the jury. 45 If a judgment appearing of record to belong to the execu- tion defendant, in fact is owned by another, it can not be subjected to execution, when it appears that the execu- tion plaintiff has not been prejudiced by the fact that the judgment appeared to belong to his debtor. 46 786. Of notice to the principal defendant. No judgment can be entered in any garnishment proceedings condemning the property or debt in the hands of the gar- nishee, until the principal defendant has had ten days' notice of such proceedings; such notice, if the case is in the district court, must be served in the same manner as an original notice. 47 And the original notice will not answer in lieu of the notice required by the statute. 48 But the principal defendant may by appearing waive the notice. 49 After the principal defendant has been noti- fied, he is bound to take notice of any further steps in the garnishment proceedings. 50 , A notice in .suit in the justice court stated that an attachment had been issued and a railroad company named had been attached as a garnishee. It was held that it was a sufficient statutory notice upon the principal defendant. 51 787. Of showing the exemption of the property, etc. The defendant in the main action may, by suitable 44 Starry v. Korab, 65-267. v. C., R. I. F. & N. W. R. Co., C2- 45 Freese v. Co-operative Coal 494. Co 67-42 r8 Wise v - Rothschild, 67-84. ..Beaver Val,e y Bt v. Cousins, B^g^**^ * ' "code. Sec. 3947; Williams v. w ' *< v. Vosburg, 70 N V/ A. 7 Williams, 61-612; Wise v. Roths- si Ammerman v. Vosburg, 70 N/ child, 67-84; see Buchanan Co. Bk. W., 620. 788.] GARNISHMENT. 23 pleading filed in the garnishment proceedings, set up facts showing that the debt or the property, with which it is sought to charge the garnishee is exempt from execu- tion, or for any other reason is not liable for plaintiff's claim, and if issue thereon be joined by the plaintiff, it must be tried with the issues as to the garnishee's lia- bility. If such debt or property, or any part thereof, is found to be thus ex.empt or not liable, the garnishee must be discharged. 52 788, When judgment will be rendered against a garnishee. When it appears from the answer of the garnishee, or on trial of an issue on his answer, that he was indebted to the defendant, or had any of the defend- ant's property in his hands, either at the time of being served with the notice of garnishment, or at any time subsequent thereto, he is liable to the plaintiff in case judgment is finally recovered by him, to the full amount of that judgment, or to the amount of the indebtedness of the garnishee and of the property so held by him ; and a conditional judgment will be entered against him for the amount due from the garnishee to the defendant in the main action, or for the delivery to the sheriff of any money or property in the garnishee's hands, belonging to the defendant in the main action, within a time fixed by the court, and for the value of the same as fixed in said judgment, if not delivered within the time thus fixed unless before such judgment is entered he pays or delivers the money or property owing or in his hands to the sheriff, which he may do at any time after answer and before judgment. The property thus delivered will be treated as if levied upon under the writ. 53 Judgment can not be rendered against a garnishee unless judgment has been recovered against the defendant in the main action. 54 An answer of the garnishee that he was in- debted to the defendant on the evening of a certain day 82 Code, Sec. 3948. v. Albaugh, 2 G. Gr., 125; Bean v. 63 Code, Sec. 3946. Barney, 10-498; Toll v. Knight 15- ci Barton v. Smith, 7-85; Wilson 370. 24 GARNISHMENT. [ 789. about the time of the service of the notice of garnishment, (it having been served the next day) will warrant a judg- ment against him. 55 Where the garnishee held property of the execution debtor to the value of seven hundred dollars under a chattel mortgage, which was fraudulent, because made for the purpose of putting the property beyond the reach of creditors, but a portion of the prop- erty so held was exempt in the hands of the execution debtor, judgment could not be rendered against the gar- nishee for the value of the exempt property, and there being no evidence of its value, the court could not de- termine the extent of the garnishee's liability and could not render any judgment against him. 56 The garnishee will not be required to pay over more than the amount of the plaintiff's judgment, interest and costs. 57 Where a judgment is rendered against the defendant the court will take judicial notice of the fact and that plaintiff is a creditor of the defendant. 58 789. Of the form of the judgment. The judgment must be for the amount found against the garnishee, but to be discharged by him on paying the money, or deliver- ing the property to the sheriff, on failure of which the judgment may, on motion, be made absolute. 59 But the judgment against the garnishee can not ex- ceed that against the defendant in the principal action, and the costs in such action. 60 If the debt from the gar- nishee to the principal defendant is not due, execution must be suspended until its maturity. 61 The garnishee can not be made liable on a mortgage which is not nego- tiable but is assignable, unless the mortgage is produced, or the garnishee completely exonerated or indemnified from liability thereon, after he may have satisfied the judgment. 62 And a garnishee will be liable to a judg- es Hoops v. Culbertson, 17-305. o Timmons v. Johnson, 15-23; 56 Brainard v. Simmons, 67-646. McDonald v. Creager, 65 N. W., 5T McDonald v. Creager, 65 N. 1021. W., 1021. ei code, Sec. 3949. ss Kenosha Stove Co. v. Shedd, 62 Timmons v. Johnson, 15-23; 82-540. Yocum v. White, 36-288. 59 Stadler v. Parmlee, 14-175. 789.] QAENISHMENT. 25 ment if he, after garnishment, pays over money in his hands to the defendant as agent when such payment is so made with the knowledge of the garnishee that it is for the purpose of defrauding creditors of the defendant, and defendant was, in fact, the owner of the money, and the garnishee knew that the object of the garnishment was to reach it. 63 Where a garnishee had been a partner of defendant and held unpaid accounts belonging to the firm, judgment should be rendered only that he pay over the sum to which the defendant was entitled, as the same should be collected. 64 A money judgment can not be rendered against a garnishee upon his answer showing that he has in his possession property of the defendant upon which he has a lien, without giving him an oppor- tunity to discharge the judgment by a surrender of the property upon provision being made for the payment of his lien. 65 The court can not render a contingent or al- ternative judgment. 66 If the garnishee is found indebt- ed to the defendant on a contract payable in property other than money, the judgment must be conditioned that it may be discharged in property, or on failure there- of become absolute and a general execution issue. 67 Where the liability of other garnishees would be in- creased by the discharge of one, such other garnishees have an interest in the determination of the liability of their co-garnish.ee. 68 An unconditional judgment should not be rendered against a garnishee until judgment is rendered against the defendant, but a conditional judg- ment may be entered which will hold the debt or prop- erty pending the final adjudication. 69 The garnishee can not object to a judgment by confes- sion under which it is sought to hold him liable on ac- count of errors or irregularities which do not render it es Kesler v. St. John, 22-565. ee Battell v. Lowery, 46-49; see e* Cox v. Russell, 44-556. Seals v. Wright, 37-171. ss Hawthorn v. Unthank, 52-507; e? Stadler v. Parmlee, 14-175; Capital City Bank v. Wakefield, 83- Ransom v. Stanberry, 22-334. 46; Brakke v. Hoskins, 67 N. W., cs Creasap v. Bower, 41-210. 235. en Capital City Bank v. Wake- field, 83-46. 26 GARNISHMENT. [ 790. void. 70 The garnishee can maintain an action to set aside a judgment rendered against him by fraud. 71 And see. 72 790. Of debts due by negotiable paper, No judgment can be rendered against a garnishee on a debt due by a negotiable or assignable paper unless such paper is delivered, or the garnishee completely exoner- ated or indemnified from all liability thereon, after he may have satisfied the judgment. 73 But if he fails to require the indemnity, and does not interpose to pre- vent a judgment against him, the judgment rendered against him will constitute no defense in an action by the holder of the paper, who received i,t before the gar- nishment. 74 Where the answer of a garnishee shows that he holds a note executed by a third party to the debtor which he received from the latter for the pur- pose of paying a certain judgment against the debtor, on which the garnishee is a surety for the stay of execu- tion, judgment can not be rendered against the gar- nishee. 75 Where the answer shows that the garnishee holds a mortgage on personal property of the debtor which is in the possession of the latter, and the value is not shown, no judgment can be rendered against him. 76 While the rights of the holder of a promissory note may be affected by a garnishment of the maker, before the transfer under which he claims, the rights of a holder who receives a note before garnishment are not affected thereby. 77 An order for a judgment in the alternative, or on condition that certain things are not done, is not a final judgment on which execution can issue, and if execution is issued thereon it may be enjoined. 78 The provisions of section 3950 of the code may be TO Henny Buggy Co. v. Patt, 73- mons v. Johnson, 13-23; McCord v. 485. Beatty, 12-299; Stevens v. Pugh, 7iSearle v. Fairbanks, 80-307. 12-430; McPhail v. Hyatt, 29-137. 72 Boyle v. Maroney, 73-70. 74 Yocum v. White, 36-288. 73 Code, Sec. 3950; Yocum v. 75 Dryden v. Adams, 29-195. White, 36-288; Hughes v. Monty, 76 First Nat'l Bk. v. Perry, 29-266. 24-499; Seals v. Wright, 37-171; 77 Fowler v. Doyle, 16-534. Kauffman v. Jacobs, 49-432; Tim- 78 Seals v. Wright, 37-171. 791.] QAENISHMENT. 27 waived by the garnishee. 79 Under the revision of 1860 it was held that the garnishee was liable on negotiable paper assigned after maturity, without indemnity being given. 80 791. Of conclusiveness of the judgment, appeal, etc. The judgment in the garnishment action condemn- ing the property or debt in the hands of the garnishee to the satisfaction of the plaintiff's claim, is conclusive between the garnishee and the defendant, and is a judg- ment in rem and can not be collaterally attacked. 81 The clerk in docketing the original action must show by a statement therein all the garnishments in the case, and when judgment is rendered against a garnishee such judgment must distinctly refer to the original judg- ment. 82 An appeal lies in all garnishment cases at the instance of the plaintiff, the defendant, the garnishee or any intervenor claiming the property or money. 83 In a garnishment proceeding before a justice of the peace having jurisdiction of the person of the garnishee, as well as the subject-matter of an erroneous judgment, which is rendered against the garnishee, from which he neglects to appeal, a court of equity will not grant relief. 84 The legal effect of a judgment against the garnishee on his answer, condemning the property in his hands, is to satisfy to the extent thereof, the indebtedness between the garnishee and the principal debtor, and the judg- ment need not in terms express such satisfaction. 85 Money paid out by a garnishee in connection with the proceedings in the original case, but not in accordance with any judgment in such case, can not be allowed in satisfaction of his indebtedness. 86 An assignee of non- 79 McPhail v. Hyatt, 39-137. 82 Code, Sec. 3952; Boyd v. Rut- so McCord v. Beatty, 12-299; S-te- ledge, 25-271. vens v. Pugh, 12-430; Walters v. ss Code, Sec. 3953; Sinard v. W. Ins. Co., 1-404; see HugKes v- Gleason, 19-165; Fanning v. Minn. Monty, 24-499. R. Co., 37-379; see Daniels v. Clark, si Code, Sec. 3951; Stadler v 38-556; Farwell v. Tiffany, 82-405. Parmlee, 14-175; Houston v. Wai- s* B. & M. R. R. Co. v. Hall 37- cott, 1-86; Moore v. C., R. I. & P. 620. R. Co., 43-385. so Stadler v. Parmlee, 14-175. se Myers v. McHugh, 16-335. 28 GARNISHMENT. [ 791. negotiable paper must give the maker notice of the as- signment before such maker is required to answer as garnishee in a suit against the assignor, or at least be- fore judgment is rendered against such garnishee, or he will be barred by the judgment. 87 If the debtor brings suit against the garnishee in this State for a debt due him, the latter may set up the fact that he has been garnished on such debt in another State. 88 If the de- fendant relies upon garnishment proceedings in an- other State as a bar to an action, he may show that the principal judgment on which the garnishment proceed- ing is based, is invalid for want of service of notice. 89 The release of a garnishee who is, in fact, indebted, does not estop the creditor from levying on property bought with money paid by the garnishee to the debtor, and which was due and unpaid at the time of garnishment and release. 90 Where a judgment debtor has been gar- nished and judgment rendered against him, without no- tice of a prior assignment of the judgment, the assignee can not compel payment while the judgment in the gar- nishment proceedings remains in force. 91 Where one pleading is filed controverting the answers of two gar- nishees, and afterward one garnishee is dismissed, plain- tiff may file further pleading, taking issue on the answer of the one not discharged. 92 An erroneous judgment appealed from will not be reviewed by the supreme court unless it appears that exception was taken at the time o its rendition. 93 An appeal lies from an order dis- charging a garnishee. 04 Plaintiff, a judgment creditor, obtained a decree setting aside a fraudulent deed by the debtor and adjudging that the rents of property so con- veyed (which accrued in 1890 and 1891) were subject to 87 Walters v. Washington Ins. i McGuire v. Pitts' Sons, 42-535. Co., 1-404; McCord v. Beatty, 12- 92 Coffman v. Ford, 56-185. 299. 93 Eason v. Lester, 31-475; Pig- ss Moore v. C., R. I. & P. R. Co., man v. Denny, 12-396; McKinley v. 43-385; Leiber v. U. P. R. Co., 49- Bechtel, 12-561; Downing v. Har- 688. mon, 13-535; Robison v. Saunders, as O'Rourke v. C., M. & St. P. R. 14-539; Perkins v. Whittam, 14- 55-332. 596. o Milligan v. Bowman, 46-55. 94 National Bk. v. Chase, 71-120. 791.] GARNISHMENT. 29 % plaintiff's judgment if taken by due process of law, but the plaintiff had no lien thereon. Afterwards plaintiff garnished "W", in whose possession the rents were. "D" intervened, claiming the fund on the ground that he had recovered judgment against the defendant in 1892, and had garnished "W" before the notice was served in plain- tiff's case, but he failed to show whether he became a creditor of defendant before or after the fraudulent deed was made, or that the same was invalid as to him. It was held that plaintiff's claim was entitled to priority over that of "D's" claim. 95 When an order is entered in garnishment proceedings and the garnishee has uncol- lected securities of the debtor in his hands which he is required to account for, supplemental proceedings may be had on his failure to account and further orders be made, and a garnishee who is required by order of the court to account for the proceeds of securities in his hands after collections is entitled to credit for proper expenses of collections, and may pay attorneys in neces- sary litigation reasonable compensation. 96 The fact that a garnishee testified that the money attached was given him by the debtor to pay a claim, does not estop him to deny obligation on the claim when suit is brought there- on against him. 97 Garnishee proceedings commenced in this State against a railroad company for wages due an employe are not abated by the commencement of an action in another State by the employe against the rail- road for such wages. Nor does a judgment recovered against the railroad in such action bar the garnishment proceeding. The retroactive provision in a law giving exemptions can not avail in a garnishment proceeding instituted before the passage of the law. 98 s Clark v. Raymond, 66 N. W., 97 Walker v. Irwin, 62 N. W., 785. 86. eswillard v. Sturm, 65 N. W., McDonald v. Creager, 65 N. 847. W., 1021. CHAPTER XLIX. OF EXECUTIONS AND EXEMPTIONS. Sec. 792. Within what time an execution may issue. 793. What judgments and orders are enforceable by execution. 794. Into what counties the writ may run. 795. When issued on Sunday. 796. Of the issuance of the writ, and of the duty of the clerk. 797. Of requisites of the writ generally. 798. Of proceedings when the writ is issued to another cotfnty. 799. Of forms of executions. 800. When a stay of execution is allowed. 801. Of debts contracted prior to September 1, 1873. 802. Of stay bonds and their approval. 803. Effect of stay after execution has been issued The bond. 804. Of sureties preventing or determining the stay of execution. 805. Duty of sheriff on receiving aji execution. 806. Same When against principal and surety. 807. Of the levy of the execution. 808. When sheriff dies or goes out of office. 809. How the levy is made. 810. Of levying on judgments, bank bills, etc. 811. Of proceedings by garnishment. 812. Of levying on mortgaged chattels. 813. Of the levy on partnership property, and proceedings there- under. 814. Of executions against municipal corporations. 815. How stock interests of the defendant in a corporation levied on. 816. Debtor may pay the sheriff. 817. Effect of the levy, surplus, etc. 818. When an indemnity bond may be demanded. 819. Levy discharged, when. 820. Of the bond, its terms and conditions. 821. Of the application of proceeds, etc. 822. What property is exempt from execution. 823. Same Of personal earnings, etc. 824. Same Of pension money. 30 792.] EXECUTIONS AND EXEMPTIONS. 31 825. Of insurance money. 826. Same Of exemptions to unmarried persons. 827. Same Of the head of the family. 828. Same When exemptions not allowed, of absconding, etc. 829. Of other exemptions. 830. Of waiver of right of exemption. 831. Of securing the claims of laborers of insolvent corporations, etc. 832. Of depriving persons of the benefit of the exemption laws. 833. Of exchange of exempt property, liens, etc. 834. Of construction of the statute, remedy, etc. Section 792. Within what time an execution may issue. An execution is said to be a writ directed to an officer authorizing him to carry into effect the judgment of the court, 1 and executions may issue at any time be- fore the judgment is barred by the statute of limitations, and upon judgments in the district and supreme courts into any county which the party ordering may direct, but one execution can be in existence at the same time on the same judgment or order. 2 An execution may issue on a judgment after the lien thereof on land has expired, and at any time within twenty years, and a sale of real estate thereunder will pass all the interest of the defendant therein at the time of the levy. 3 If there is no valid existing judgment when the execu- tion is issued it is void. 4 And a subsequent entry of a judgment will not relate back so as to legalize an execu- tion issued when no judgment had been entered. 5 An execution must be regarded as "in existence" until it is returned, even though the return day is past; and a sale under a second execution issued before the first is returned will be set aside as to a judgment creditor pur- chasing at the sale. 6 While the provision of the statute that but one execu- tion can be in existence at the same time is mandatory, 1 Bouv. Law Die. 495. * Balm v. Nunn, 63-641, and 2 Code, Sec. 3955; Stahl v. cases cited. Root, 34-475; Ayres v. Campbell, 8 Winter v. Coulthard, 62 N. W., 9-213. 732. 3 Stahl v. Roost, 34-475. e Merritt v. Grover, 57-493, and 61-99. 32 EXECUTIONS AND EXEMPTIONS. [ 793. yet sueh provision may be waived by the party for whose benefit it was enacted; and when the party against whom an execution was issued knew that another execution was in existence and stood by and made no objection at the sale under the second execution, and, at the expira- tion of the period of redemption, surrendered possession of the property voluntarily, he could not afterward, in the absence of a showing that the land sold for less than its value, and an offer on his part to pay the judgment, complain. 7 The mere issuance of a second execution be- fore the return of the first under which a levy has been made will not of itself establish an abandonment of such levy. 8 It is not necessary to give the defendant in an execution notice of its issuance. 9 A,JJ execution on a judgment in justice's court on a transcript which is not filed in the office of the clerk of the district court can not issue after ten years. 10 A second execution should not issue until the levy under a prior one has been dis- posed of. 11 When a superior court has been abolished, executions from its records are to be issued by the clerk of the district court, under the seal of said court. 12 Executions should only issue in the name of the judg- ment creditor or his assignee, except in case of his death, bankruptcy, or the like. 13 793. What judgments and orders are enforce- able by execution. Judgments and orders requiring the payment of money or the delivery or the possession of property are enforceable by execution, and obedience to those requiring the performance of other acts is to be coerced by attachment for contempt. 14 A court of law by its judgment declares the conclusion of the law on the facts proved, leaving the party to the proper process to enforce it; it grants specific relief only in actions in T Merritt v. Grover, 61-99. McWilliams v. Myers, 10-325. * West v. St. John, 63-287. " Code, Sec. 277. Ayres v. Campbell, 9-213. Cornell v. Doolittle, 2 G. Gr., 10 Givens v. Campbell, 20-79; 385; McWilliams v. Myers, 10-325; Code, Sec. 4539; Walton v. Wray, Meek v. Bunker. 33-169. 54-531; Woods v. Haviland, 59-476. " Code, Sec. 3954. 79i, 795.] EXECUTIONS AND EXEMPTIONS. 33 rem, 15 and it is held the proper method of enforcing obedience to a continuing order in the nature of a man- datory injunction is by attachment for contempt. 16 Execution can not be issued on a judgment after the death of the defendant, 17 and in such a case the judg- ment should be filed as a claim against the decedent's estate. 18 Executions may be recalled by the court when they have been improperly issued, and when an execu- tion is allowed, it will be presumed it was done by one authorized. 19 An order to pay to the clerk a sum of money in a divorce action for alimony is enforceable by execution. 20 For a discussion of the issuance of a special execution for the sale of attached property refer- ence is made to the chapter herein on attachments. 794. Into what counties the writ may .mn. Executions from the district or supreme court may issue into any county which the party ordering may direct. 21 But when a judgment is rendered in one county and a transcript filed in another, execution must issue from the former county for the sale of land in the latter, and a sale made under an execution issued in the latter county is invalid. 22 But execution may issue from the county where the judgment was rendered into any county in the State. 23 The provision of the statute that a transcript must be filed is directory. 24 795. When issued on Sunday. An execution may be issued and executed on Sunday when an affidavit is filed by plaintiff, or some person in his behalf stating that he believes he will lose his judgment unless process issues on that day. 25 Such affidavit may be in the follow- ing form : is Kramer v. Rebman, 9-114. 21 Code, Sec. 3955. ie State v. Baldwin, 57-266. 22 Furman v. Dewell, 35-170; IT Welch v. Battern, 47-147; see Seaton v. Hamilton, 10-394. Sprott v. Reid, 3 G. Gr., 489. 23 Anderson v. Hall, 48-346. is Bayless v. Powers, 62-601. 2* Hubbard v. Barnes, 29-239; is Mayfield v. Bennett, 48-194; McGinnis v. Edgell, 39-419; see Preston v. Wright, 60-351. Foreman v. Higham, 35-382. 20 Allen v. Allen, 72-502. 25 Code, Sec. 3956. Vol. II 3 34 EXECUTIONS AND EXEMPTIONS. [ 796, 797. FORM OF AFFIDAVIT FOR ISSUANCE OF EXECUTION ON SUNDAY. Title, ) Venue. J State of , ) County. j 5>i ' I, , being duly sworn, say: That on the day of 18 , I obtained a judgment in the district court in and for said county in the above entitled action against the defendant (or plaintiff) for dollars debt and dollars costs, which remains wholly un- satisfied (or as the case may be); that I verily believe I will lose my said judgment unless an execution be this day, Sunday, issued and exe- cuted. (Add certificate of officer.) 796. Of the issuance of the writ and of the duty of the clerk. When a judgment is rendered the clerk must, on demand of the party entitled thereto, at once issue an execution, and at the same time enter on his judgment docket the date of its issuance, and to what county and officer issued. 26 797. Of the requisites of the writ generally. The execution must intelligibly refer to the judgment, stating the time and place at which it was rendered, the names of the parties to the action, and to the judgment, its amount, and the amount still to be collected thereon, if for money, and if not for money it must state what act is to be performed, and if against the property of a judgment debtor, it should require the sheriff to satisfy the judgment interest and costs out of the property of the debtor, subject to execution describing such property. 27 A slight variance between the amount stated in the execution and that stated in the judgment will not viti- ate the writ. 28 Below will be found a form of execution which can be used in ordinary cases. ae Code, Sec. 3957. 28 Williams v. Brown 28-247- *T Code, Sec. 3960. see Burdick v. Shigley, 30-63. 797. ] EXECUTIONS AND EXEMPTIONS. 35 GENERAL FORM OF EXECUTION FOR MONEY. State of Iowa, To the sheriff of county, greeting: Whereas, on the day of , A. D. 18 , judgment was rendered in the district court of county against (here insert names of parties against whom judgment was rendered) for the sum of dollars debt and dollars cost of suit at the suit of (here insert names of parties to the suit), you are therefore hereby commanded to cause to be made of the goods and chattels, lands, tenements and effects of the said (name of party against whom judgment was rendered), in your county, subject to execution, the said sum with interest at - - per cent, per annum from the day of , 18 , and costs in the sum of dollars, and accruing costs by levy and sale according to law, and of this writ make legal service and due return to the court with- in seventy days from the date hereof. Witness, , clerk of said court, with the seal thereof hereto affixed at , Iowa, this day of , 18 . [Seal.] , clerk, etc. If the execution issue against real or personal prop- erty in the hands of personal representatives, heirs, devi- sees, legatees, tenants of real property, or trustees, it must require the sheriff to satisfy the judgment, interest and costs out of such property. 29 It must not be levied on exempt property. 30 A lien will not be lost because property is levied on and sold under a general execution when the sale should have been made under a special execution. 31 When the remedy will be exhausted. 32 If it issue for the delivery of possession of real or per- sonal property, it must require the sheriff to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the sheriff to satisfy any costs, damages, or rents and profits, with interest, recovered, by the same judg- ment, out of the property of the party against whom it was rendered, subject to execution, and the value of the property for which judgment was recovered must be specified therein, if a delivery thereof can not be had, and it shall in that respect be regarded as an execution 29 Code, Sec. 3961. si Valley Nat. Bk. v. Jackaway, so Nix v. Goodhile, 63 N. W., 701. 80-512. 32 Bevans v. Dewey, 82-85. -36 EXECUTIOXS AND EXEMPTIONS. [ 798. .-against property. 33 And when it requires the perform- .ance of any other act, a certified copy of the judgment irnay be served on the person against whom it is rendered, >or upon the person or officer who is required thereby, or tby law, to obey the same, and his obedience thereto en- forced. 34 An execution which sufficiently describes and identi- fies the judgment so as to render certain the authority on which it was issued invests the officer w^ith power to levy and sell, 35 and slight defects in the execution will not render it invalid. 36 798. Of proceedings when writ is issued to an- other county. In case an execution is issued to a county other than that in which the judgment is ren- dered, and is levied upon real estate in such county, a transcript of such judgment must be filed in the office of the clerk of the district court of said county, who must make an entry thereof in the judgment docket of said court, and the officer making the levy must make an entry thereof upon the incumbrance book showing the same particulars 1 required in case of an attachment of real estate, which will be bound from the time of such entry. 37 But it seems that an execution may issue into any county and a valid sale of the property be made as between the parties and subsequent purchasers having actual notice, notwithstanding no transcript of the judg- ment is filed in the county where the land is situated which is sold. 3 The provision of the statute requiring transcript to be filed in the foreign county is directory, but in the absence of actual notice the proceedings of levy and sale, where such transcript is not filed, will not impart constructive notice to the purchaser prior to the filing of the sheriff's deed. 39 But the deed z when record- as Code, Sec. 3962. Dean v. Goddard, 13-292; Williams 34 Code Sec. 3963. v. Brown, 28-247; Cunningham v. 35 Dean v. Goddard, 13-292; Felker, 26-117. Sprott v. Reid, 3 G. Gr., 489; Shel- ^ Code, Sec. 3958. don v. Van Buskirk, 2 Comst, 473; Hubbard v. Barnes, 29-239, Elliott v. Cronk's Adm'rs, 13 and see cases cited under No. 40. "Wend., 35. 39 Hubbard v. Barnes, 29-239; secooley v. Brayton, 16-10; McGinnis v. Edgell, 39-419; Fore- 799.] EXECUTIONS AND EXEMPTIONS. 37 ed, will be constructive notice of the title to a purchaser; the purpose of filing a transcript is only to make the judg- ment a lien. 40 The powers of the clerk are only such as are given in this section; he cannot receive payment of the judgment nor satisfy it 41 799. Of forms of executions. Below will be found several forms of executions in addition to the general form heretofore given. It will be observed that no par- ticular form of words need be used. All that is required is that the execution in each case contains sufficient to comply with the statutory requirements heretofore stated: FORM OF EXECUTION FOR THE DELIVERY OF SPECIFIC CHATTELS. The State of Iowa. To the sheriff of county, greeting: Whereas, on the day of , A. D. 18, by the judgment of the district court held at the court house in in said county, recovered against the possession of the following described per- sonal property, to-wit: (here describe the property) or in case a deliv- ery thereof can not be had then for dollars, the value thereof duly assessed, and also (here state any other sums recovered as damages, costs, etc.) in a certain action then pending in said court wherein the said was plaintiff and the said was defendant, which said judgment remains in full force and unsatisfied. You are therefore com- manded that you cause the above described property forthwith ta be delivered to the said , and that you cause to be made of the goods and chattels, lands and tenements of the said , subject ta execution in your county, the sum of dollars damages and dollars costs of said action together with all the legal costs that may accrue by virtue of this writ, with legal interest, and also in case a delivery of said property can not be had, that you cause to be made, as aforesaid, the further sum of dollars with interest thereon from the day of A. D. 18 , and have you said moneys, etc. (a in form of general execution heretofore given). FORM OF EXECUTION ON TRANSCRIPT OF JUDGMENT FROM A JUSTICE OF THE PEACE. The State of Iowa. To the sheriff of said county, greeting: Whereas, on the day of , A. D. 18 , a duly certified transcript of a judgment from the docket of , a justice of the peace man v. Highan, 35-382; see Code, 14-400; Hendershott v. Ping, 24- Sec. 3958. 134. 40 Foreman v. Highan, 35-382; *i Hawkeye Ins. Co. v. Luckow, Code, Sec. 3802; see Lathrop v. 76-21. Brown, 23-40; Blaney v. Hanks, 38 EXECUTIONS AND EXEMPTIONS. [ SCO. of county, was filed in the office of the clerk of the district court of said county, and a memorandum thereof was entered on the judgment docket of said court, and whereas it appears from the transcript that did on the day of , A. D. 18 , recover a judgment against , for the sum of dollars and costs of suit, before , justice of the peace. You are therefore hereby commanded, etc. (as in form of general execution heretofore given). (For form of execution in case of sale of real estate under mortgage- foreclosure reference is made to the chapter on mortgages.) 800. When a stay of execution is allowed. On all judgments for the recovery of money, except those rendered in any court on appeal, or writ of error thereto, or in favor of a laborer or mechanic for his wages, or against one who is surety in the stay of execution, or against any officer, person or corporation, or the sureties of any of them, for money received in a fiduciary capac- ity, or for the breach of any official duty, there may be a stay of execution, if the defendant therein shall, within ten days from the entry of judgment, procure one or more sufficient freehold sureties to enter into a bond acknowl- edging themselves security for the defendant for the payment of the judgment, interest and costs from the time of rendering the judgment until it is paid. If the sum for which judgment was rendered, inclusive of cost, does not exceed one hundred dollars, execution may be staj-ed for three months; if such sum and costs exceeds one hundred dollars, it may be stayed six months. 42 A subsequent purchaser of mortgaged property, who has assumed as between himself and the mortgagor, the payment of the mortgaged debt, and who is a co-defend- ant with the mortgagor in an action to foreclose the mort- gage, may, without the mortgagor's consent, stay the execution on the judgment of foreclosure. 43 And a stay of execution properly taken, is not rendered invalid by the failure of the clerk to require the sureties to justify. 44 The provisions of the stay law are general, and apply to justices' courts as well as courts of record, 45 and it Code, Sec. 3996. ** Du Bois v. Bloom, 38-512. 43 Moses v. The Clerk, etc., 12- *s Brown v. Markley, 58-689. 139. 801, 802.] EXECUTIONS AND EXEMPTIONS. 39 seems that any one may stay a judgment who, being a party to the proceeding, has such an interest as that in equity as between him and the judgment debtor, he may be compelled to pay the debt. 46 But no stay is allowed on a judgment rendered against one who is a surety in a stay of execution, nor to a judgment obtained by a laboring man or mechanic for his wages; nor will an appeal be allowed after stay is taken, it being a waiver of a right to appeal. 47 The time of the stay begins to run from the time the judgment is rendered. 48 801. Of debts contracted prior to September 1, 1873. The provisions -of the existing law relating to stay of executions do not apply to contracts made prior to September 1, 1873, such contracts being governed by the law in force at the time they were made. 49 802. Of stay bonds and their approval. The surety for a stay of execution may be taken and approved by the clerk, and the bond must be recorded in a book kept for that purpose, and will have the force and effect of a judgment confessed, from the date thereof, against the property of the sureties, and the clerk must enter and index the same in the proper judgment docket. 50 Unless the surety objects, and such objection appears of record, he will be presumed to have consented to the stay, and thereby waived the right to redeem his prop- erty, if sold under execution. 51 The right of trial is waived by executing a bond. 52 Officers approving stay bonds, unless waived in writing, by the party in whose favor the judgment is rendered, must require the affida- vits of the signers of such bond to the effect that they own real estate, not exempt from execution, and exclu- sive of incumbrances, to the value of twice the amount of the judgment. 53 The act of the clerk in passing upon 46 Moses v. The Clerk, etc., 12- eo Code, Sec. 3999. 139. BI Chase v. Wilty, 57-230. *i Code, Sec. 3998; Seacrist v. 2 Cavender v. Heirs of Smith, jSfi-vvman, 19-323. 5-157. Okey v. Sigler, 82-94. os Code, Sec. 3997. 49 Code, Sec. 3996; Revision of 1860, Sec. 3293. 40 EXECUTIONS AND EXEMPTIONS. [ 802. the sufficiency of a stay bond is not judicial, and he is liable for any damage sustained by the judgment cred- itor by reason of his negligence in accepting an insuffi- cient bond, and taking the affidavit of the surety will not exonerate the clerk from liability. 54 Where a stay bond has been taken and filed with the clerk, and was lost, and no entry with reference thereto made on the records of the court, it was held it did not become a lien upon the property of the surety, as against subsequent incum- brances, without actual notice. 55 Parol evidence is not admissible to prove that a stay bond was not filed at the time stated in the record. 56 Even when a stay bond is accepted and approved, in a case in which the debtor is not entitled to a stay of exe- cution, it is nevertheless a lien on the land owned by the surety, the clerk's action in accepting or approving such bonds not being subject to review in a collateral pro- ceeding. 57 The right of action against the clerk for dam- ages arising from his fault in approving a stay bond does not accrue until the expiration of the stay, and the right of action of the clerk against his deputy for a like fault arises at the same time, and it is no defense for the dep- uty that the principal had previously approved bonds signed by the same surety. 58 The determination of the clerk as to w r hether a stay bond is filed witliin the time required by law, or whether the filing of it is essential to its validity, is a judicial act, and an error in such a case will render the judgment voidable, not void. 59 Bond for stay of execution in any case may be in the following form: FORM OF STAY BOND. Title, ) Venue. J We hereby acknowledge ourselves security for the defendant herein for the payment of the judgment, costs and interest thereon, rendered by the district court of Iowa in and for county, in the above entitled siHubbard v. Switzer, 47-681; " Wishard v. Biddle, 64-526; see see Moore v. McKinley, 60-367. Maynes v. Brockway, 55-457. as Waldron v. Dickerson, 52-171. ss Moore v. McKinley, 60-367, cs Maynes v. Brockway, 55-457. and cases cited. 59 Maynes v. Brockway, 55-457. 803. ] EXECUTIONS AND EXEMPTIONS. 41 action, on the day of , 18 , against said defendant, for the purpose of a stay of execution thereon for - months, and to that end we hereby undertake and promise to pay the said judgment, inter- est, costs and accruing costs, at or before the expiration of the said term of the stay of execution, and upon the expiration of said term we hereby authorize and empower the clerk of said court to issue execu- tion against us as provided by law. Dated this day of , 18. And the affidavit required by statute may be in the following form: FORM OF AFFIDAVIT OF JUSTIFICATION BY SURETIES. State of Iowa, ) County. [ I, , do solemnly swear that I am a resident and a freeholder of the State of Iowa, and am worth the sum of dollars beyond the amount of my debts and have property liable to execution in this State equal to the sum of dollars. (Must be sworn to.) Where there are two or more sureties they may each make a separate justification for an amount which in the aggregate will be sufficient, or they may justify to- gether and the above form can be changed accordingly. This bond must be approved by the clerk by making the proper indorsement thereon. 803. Effect of stay after execution has been issued The bond. When the stay is taken after exe- cution has issued, and the clerk has accepted and ap- proved the bond, he must immediately notify the sheriff of the stay, who must forthwith return the execution with his doings thereon. 60 And all property levied on before stay of execution and all written undertakings for the delivery of personal property to the sheriff must be relinquished by the offi- cer upon stay of execution being entered. 61 The giving of the bond will not release any judgment lien by virtue so Code, Sec. 4000. ei Code, Sec. 4001. 42 EXECUTIONS AND EXEMPTIONS. [ 804. of the original judgment for the amount then due. 02 Some courts have held that a judgment and its legal in- cidents can not be affected by an antecedent or contem- poraneous, independent, collateral agreement to stay execution. 63 804. Of sureties preventing or determining the stay of execution. At the expiration of the stay the clerk must issue a joint execution against the property of all the judgment debtors and sureties, describing them as debtors or sureties in the writ; the liabilities of such sureties will be subject to that of their principal. 04 But a delay in issuing the execution after expiration of the stay, will not discharge the lien of the judgment. 65 The sheriff must return on the execution what amount is made from the principal debtor and what amount from the sureties. 66 When any court renders judgment against two or more persons, any one of whom is surety for any other in the contract on which the judgment is founded, there will be no stay of execution allowed, if the surety objects thereto at or before the time of rendering the judgment; and if such objection is made, the court will order that no stay be allowed unless the surety for the stay of execution will undertake specifically to pay the judgment in case the amount thereof can not be col- lected from a principal defendant, and the judgment must recite that the liability of such stay is prior to that of the objecting surety. 67 Any surety for the stay of execution may file with the clerk an affidavit stating that he verily believes he will be compelled to pay the judgment, interest and costs thereon, unless execution issues immediately, and if he gives notice thereof in writ- ing to the party for whom he is surety, the clerk must thereupon issue execution forthwith, unless other suffi- cient surety is given within five days after such notice is 62 Code, Sees. 3999, 4006. es Parish v. Elwell, 46-162, and ss Woolworth v. Drinker, 11 cases cited. Ohio St., 593; Fullam v. Valentine, ee Code, Sec. 3966. 11 Pick., 156; see Tousey v. Bish- e- Code, Sec. 4003; see Okey v. op, 22-178. Sigler, 82-94. 6* Code, Sec. 4002. 805. ] EXECUTIONS AND EXEMPTIONS. 43 given. 68 If other sufficient surety is given it will have the force and effect of the original surety entered before the filing of the affidavit, and will discharge the original surety. 09 805. Duty of sheriff on receiving execution. When the sheriff receives an execution he must receipt for it if required, stating the hour when the same was received, and must make sufficient return thereof, to- gether with the money collected, on or before the seven- tieth day from the date of its issuance. 70 And he must indorse thereon the day and hour when he received it, and the levy sale, or other acts done by virtue thereof, with the date and dates and amounts of any receipts or payments in satisfaction thereof, and these indorsements must be made at the time of the receipt or acts done. 71 But a failure to return the execution within the seventy days does not render the officer liable to damages unless special injury is alleged and proved. 72 And it has been held that the failure of the sheriff to make return for the year during which redemption was allowed did not render the sale void. 73 Sales made after the expiration of the seventy days are good if the levy was made when the execution was alive. 74 And sales made on justices' executions are good though made after the seventy days if the levy was made within that time. 75 If the execution is lost it would seem that the return might be made on a copy, but unless the fact of such loss or destruction be shown by the return, a return made on a copy could not be introduced in evidence, nor could the return be explained by parol unless it is shown that the execution has issued and a levy been made there- under and the execution has been lost and can not be produced. 76 If the right of the sheriff to subject the es Code, Sec. 4004. 74 Stein v. Chambless, 18-474; 69 Code, Sec. 4005. Mooney v. Mass, 22-380; Childs v. TO Code, Sec. 3964. McChesney, 20-431; Butterfield v. 71 Code, Sec. 3965. Walsh, 21-97; Thorington v. Allen, 72Musser v. Maynard, 55-197, 21-291; Wright v. Howell, 35-288. and cases cited. 75 Walton v. Wray, 54-531. TS Cooper v. French, 52-531. ?o West v. St. John, 63-287; Code, 4-4 EXECUTIONS AND EXEMPTIONS. [ 806. property levied on to the satisfaction of the execution is contested by an action of replevin, he should not make any return of the execution until the final disposition of the replevin suit. 77 A statement in the return of an execution which is entered on the judgment record and which recites acts of a person other than the officer, is without authority and can not be relied on by a subse- quent incumbrancer. 78 If the sale is treated as a nullity by the parties, parol evidence is receivable to show that it never was completed. Irregularities in the officer's return will not ordinarily prejudice a purchaser at the sale. 79 Matters not recited in the return may be shown by parol testimony. 80 806. Same When against principal and surety. The clerk issuing an execution on a judgment against principal and surety, must state therein the order of lia- bility recited in the judgment, and the officer serving it must exhaust the property of the principal first, and of the other defendants in the order of liability thus stated. 81 But this only applies when judgment has been obtained against both principal and surety, and not then unless the order of liability is stated in the judgment. 82 And one of two joint judgment debtors can not compel the creditor to resort to the other first unless so directed in the judgment. 83 The term surety, as herein used, embraces accommodation indorsers, stayers, and all other persons whose liability on the claim is posterior to that of another; but the surety must, if required by the officer, show property of the principal to entitle him to the benefit of these provisions of the statute. 84 And all the parties, in all cases, will be considered as equally liable unless the order of liability is shown to the court Sec. 3968; Flannigan v. Althouse, Gr., 385; Humphry v. Beeson, 1 G. 56-513; Le Barren v. Taylor, 53- .Gr., 199. 637. 80 Smith v. De Kock, 81-535. 77 Cox v. Currier. 62-551. i Code, Sec. 3966; Bockholt v. TS Aultman v. McGrady, 58-118. Kraft, 78-661. 79 Winnebago County v. Brones, 82 Palmer v. Stacy, 44-340. 68-682; Hopping v. Burnam, 2 G. 83 Palmer v. Stacy, 44-340. Gr., 39; Corriell v. Doolittle, 2 G. 84 Code, Sec. 3966. 807.] EXECUTIONS AND EXEMPTIONS. 45 and recited in the judgment; and the clerk issuing exe- cution on the judgment containing such recital must set out such order of liability therein, and the officer holding the execution must show in his return the amount collected from the principal and from the surety. 85 After exhausting the property of the princi- pal the officer must subject the property of the other parties in the order of their liability in the execution. But the party subsequently liable must, if requested by the officer, show property of the party liable before him to entitle himself to the benefit of the provisions of the statute heretofore mentioned. 80 Any act of the creditor which entitles the principal to claim for any time an exemption from performance, will work a discharge of the surety; but if time is given the principal w T ith the consent of the surety, it will not operate as a discharge, nor will it when the surety ratifies such act. 87 And this is true after the contract has passed into a judgment. 88 A judgment defendant who is a surety for his co-defend- ant has such an interest against his co-defend,ant that he may show property of his principal which is subject to execution for his debts. 89 In an action at law on a note against principal and surety, when the surety pleads his suretyship and asks judgment accordingly, plaintiff may dismiss as to the principal and pursue the surety alone; as to plaintiff both are principals. 90 807, Of the levy of the execution. After the officer receives an execution it is his duty to proceed to execute it with diligence, and in doing so an exact de- scription of the property at length, with the date of the levy, must be indorsed on or appended to the execution; if it is not executed, or is executed in part only, the rea- son therefor must be set out in the return. 91 And the ss Code, Sec. 3966; see State v. ss Hershler v. Reynolds, 22-153; McGlothlin, 61-312; Walters v. Chambers v. Cochran, 18-159. Wood, 61-290. 89 Delevan v. Pratt, 19-429. se Code, Sec. 3966. so Dorothy v. Hicks, 63-240. ST Hershler v. Reynolds, 22-153. i Code, Sec. 3968; Citizens Nat. Bk. v. Loomis, 69 N. W., 443. 46 EXECUTIONS AND EXEMPTIONS. [ 808. officer's return indorsed on the writ is the best and gen- erally the only evidence as to what property is covered by the levy. 92 If it is shown that the execution and re- turn are lost, then parol evidence is admissible to show the contents of the return, but for no other purpose. 93 Sales made under levies not in compliance with the statu- tory requirements are void. 94 Where an officer levied an execution on standing corn by going into the field for that purpose and notifying persons interested that he had made the levy, it was held a good levy as against such persons, and it was not necessary to keep a guard over the field to maintain the levy. 95 A levy on a safe which is locked and its contents described in the return as "Notes and money and books," is a good levy on notes payable to the execution defendant and contained there- in. 96 When the writ is sent into another county than that in which the judgment was rendered, return may be made by mail, but money can not be thus sent except by direction of the party entitled to it, or his attorney. 97 The mortgagor of chattels in possession for a definite time may have his interest therein levied on before the expiration of such period. 98 A leasehold interest may be levied on. 99 And so may an equitable interest in real property, 1 and so may property intended for a special use. 2 808. When sheriff dies or goes out of office. In case the sheriff dies or goes out of office before return- ing the execution, his successor, or other officer author- ized to discharge his duties in such a case, the coroner, may proceed in the same manner thereon that the sheriff should have done. 3 And the sureties on the official bond of the coroner are liable for his acts while he is acting as sheriff ex officio. 4 92 Flannigan v. Althouse, 56-513. 9s Rindskoff v. Lyman, 16-260. 3 LeBarron v. Taylor, 53-636. Sweezy v. Jones, 65-272. 9* Payne v. Billingham, 10-360. i Lippencott v. Wilson, 40-425. as Barr v. Cannon, 69-20; Stuart 2 Coffey v. Wilson, 65-270. v. Phelps, 39-14. 3 Code, Sec. 506. as Smith v. Clark, 69 N. W., 1011. * Tieman v. Haw, 49-312. 97 Code, Sec. 3959. 809.] EXECUTIONS AND EXEMPTIONS. 47 809. How the levy is made. The officer must execute the writ promptly by levying on the property of the judgment debtor, collecting the things in action by suit in his own name, if necessary, or by selling the same and the other property and paying to the clerk or the plaintiff the proceeds or so much thereof as will sat- isfy the execution, he may retain his own costs on re- ceipting therefor on the judgment docket. 5 And by the term property, is meant real as well as personal prop- erty. 6 A judgment creditor may elect, but is not com- pelled to take in payment of his debt, script, or the ordi- nary evidence of indebtedness issued by a corporation. 7 There must be a levy on, or a seizure of the property, 8 and to be a sufficient levy, it must describe the property taken with such certainty as to enable the successor of the sheriff, if one should be appointed, or the purchaser at the sale, to find and identify it. 9 To make a valid levy on personal property, the officer must take or have it within his power or control, or at least within his view, and if so having it, he makes a levy upon it, it will be good if followed up, in a reasonable time, by his taking pos- session of the property in such a manner as to apprise the world of its having been levied on. 10 And he may take possession by placing the property in the control or possession of some third person, but if left in the posses- sion and custody of the defendant, the levy will not be -good. 11 The officer must in all cases select such prop- erty, and in such quantity, as will be likely to bring the amount required to be raised as nearly as practicable, and having made one levy, may afterward make other levies, if he finds it necessary, but no writ of execution is a lien on personal property until the actual levy thereon. 12 The officer levying the writ is held to the s Code, Sec. 3969; Hawkeye v. 387; Rix v. Silknitter, 57-262; Bor- Diddy, 84-634; Stuart v. Trotter, der v. Benge, 12-330. 75-96. 11 Kingsberry v. Buchanan, 11- e Harrison v. Kramer, 3-543. 387; Rix v. Silknitter, 57-262; t Oswald v. Thedinga, 17-13. Techmeyer v. Waltz,, 49-645. sDownard v. Crenshaw, 49-296. 12 Code, Sec. 3970; Reeves v. Se- Payne v. Billingham, 10-360. brun, 16-234. 10 Kingsberry v. Buchanan, 11- 48 EXECUTIONS AND EXEMPTIONS. [ 810. exercise of ordinary care in the preservation of the prop- erty levied on, while it remains in his hands or under his control. 13 When the levy is excessive the sale will be set aside even though the whole property sold has been previously attached in the same action. 14 The mere noting the fact of a levy on personal property without taking and keeping possession of it, is not a levy suffi- cient to create a lien. 15 A levy on a growing crop is not valid as against after-acquired liens, if made so long before the officer can properly proceed to advertise and sell it, as to evince an intention on the part of the judg- ment creditors to hold the levy for the time being merely as a security; and, indeed, the tendency of our court seems to be to hold that immature growing crops can not be levied on and sold. 16 For a failure to perform his duty the officer is liable if it appear that the property levied on belonged to the execution defendant, was sub- ject to levy and was lost because of the officer's negli- gence. 17 810, Of levying on judgments, bank bills, etc. Judgments, bank bills and other things in action may be levied on and sold or appropriated, and assignments thereof by the officer will have the same effect as if made by defendant. 18 When a railroad company received a number of its own mortgage bonds from a debtor, in payment of his debt, not for the purpose of canceling the same, but with the intention of putting them in circulation as securities, such bonds were property of the corporation and could be levied on. 19 Generally it may be said the right to levy on and sell personal property is measured by the power to take and deliver possession of it. 20 It has been is Cresswell v. Burt, 61-590, and 57-336; Ellithrope v. Reidesil, 71- cases cited. 316. Cook v. Jenkins, 30-452. " Hawkeye L. Co. v. Diddy, 84- is Techmeyer v. Waltz, 49-645; 634. Rix v. Silknitter, 57-262. Code, Sec. 3971. is Burleigh v. Piper, 51-649; see i 9 Hetherington v. Hayden, 11- Downard v. Groff, 40-597; Heoht v. 335. Dethman, 56-679; Martin v. Knapp, 20 Campbell v. Leonard, 11-489. 811.] EXECUTIONS AND EXEMPTIONS. 49 held that the mortgagor of personal property in posses- sion of the mortgagee has no interest in it subject to levy; but provision is now made by statute for levying on mortgaged chattels. 21 A promissory note may be levied on and sold on execution. 22 Under section 3272 of the revision of 1860, which did not expressly include judgments, it was held that a judgment could not be reached by levy and sale on execution, 23 but that the proper method of procedure was to garnish the judgment debtor. Under sections 3971 and 4035 of the code an assignment of a promissory note by an officer levying on and selling it has the same 'effect as if made by the defendant in execution. 24 And the word "defendant," as used in the statute, includes not only the execution de- fendant, but the defendant in a garnishment proceeding auxiliary to execution. A judgment may now be levied on and sold as other personal property. 25 When land is sold on execution issued on a judgment which was not a lien on it, and such sale is set aside, the satisfaction of the judgment by the sale should also be set aside. 26 811. Of proceedings by garnishment. In pro- ceedings by garnishment on execution, the garnishee must be served as in case of an attachment; his answer may be taken by the officer or he may be notified to ap- pear in court, and in every particular the proceedings must be the same as under garnishment on attachment as near as practicable. 27 And proceedings by garnish- ment on execution will not, in any manner, be affected by the expiration of the execution or its return, and when parties thereunder have been garnished, the officer must return to the next term of court thereafter a copy of the execution with all his doings thereon, so far as they re- 21 Code, Sees. 3979 to 3990; 24 Earhart v. Gant, 32-481. Campbell v. Leonard. 11-489; Tor- 25 Ochiltree v. The M., I. & N. R. bet v. Hayden, 11-435; Gordon v. Co., 49-150; see Osborn v. Cloud, Hardin, 33-550; Vanslyck v. Mills, 23-104: Beaver Valley Bk. v. Cou- 34-375; Wells v. Sabelowitz, 68- sins, 67-310. 238. 26 Farmer v. Sasseen, 63-110. 22 Osborn v. Cloud, 23-104. 27 Code, Sec. 3975; Ball v. Cedar as Osborn v. Cloud, 23-104. Valley Creamery Co., 67 N. W., 232. Vol. IT 1 50 EXECUTIONS AND EXEMPTIONS. [ 812. late to said garnishment, and the clerk must docket an action thereon without fee, and the further proceedings must conform to proceedings in garnishment under at- tachments. 28 When issue is not taken on the answer of the garnishee at the term it is filed, he is entitled to notice unless he voluntarily appears. 29 A fund in court may be levied on. 30 Formerly the statute did not require notice of the garnishment proceeding to-be given to the judgment debtor. 31 Now such notice is necessary. 32 812. Of levying on mortgaged chattels. Mort- gaged personal property, not exempt from execution, may be taken on attachment or execution issued against the mortgagor if the officer, or the attachment or execu- tion creditor, within ten days after such levy shall pay to the holder of the mortgage the amount of the mort- gage debt and interest accrued, or deposit the same with the clerk of the district court of the county from which the attachment or execution issued for the use of the holder of the mortgage, or secure the same as hereinafter provided. 33 When the debt secured by the mortgage is not due as shown by the mortgage, the officer, or the attachment or execution creditor must also pay or deposit with the clerk interest on the principal sum at the rate specified in the mortgage for the term of sixty days from the date of the deposit unless the debt secured falls due in a loss time, in which case interest must be deposited for such shorter period. 34 If within ten days after such levy the attachment or execution creditor does not pay the amount, make the de- posit, or give the security required; the levy will be dis- charged and the property restored to the possession of zs Code, Sec. 3976. 33 Code, Sec. 3979: Blotcky v. 29 Kienne v. Anderson, 13-565. O'Neill, 83-574; Danforth v. Har- so Patterson v. Pratt, 19-358. low, 76-236: Deering v. Wheeler, si Smith v. Dickson, 58-444. 76-496; Willson v. Felthouse, 90- 32 Code Sec. 3947; Hamilton 315. Buggy Co. v. Iowa Buggy Co., 88- 34 Code, Sec. 3980. 364; Ammerman v. Vosburg, 70 N. W., 620. 812. ] EXECUTIONS AND EXEMPTIONS. 51 the person from whom it was taken and the creditor will be liable to the holder of the mortgage for any damages sustained by reason of such levy. 35 When such sum is paid to the holder of the mortgage or deposited with the clerk, the attachment or execution creditor will be subrogated to all the rights of such holder and the proceeds of the sale of the mortgaged property will be first applied in the discharge of such indebtedness and the costs incurred under the writ of attachment' or execution. 36 If for any reason the levy upon the mortgaged prop- erty is discharged or released without a sale thereof, the attachment or execution creditor who has paid or de- posited the amount of the mortgage debt will have all the rights under such mortgage possessed by the holder at the time of the levy. If the holder thereof desire to be reinstated in his rights thereunder he may repay the money received by him with interest thereon at the rate borne by the mort- gage debt for the time it has been held by him and de- mand the return of the mortgage, whereupon his rights thereunder will revest in him and the attachment or exe- cution creditor will be entitled to the deposit made, or any part thereof remaining in the hands of the clerk, or any money returned to the clerk by the holder of the mortgage. 37 The holder of the mortgage must before receiving the money tendered to him by the attaching or execution creditor or deposited with the clerk, state over his signa- ture and under oath, on the back of the mortgage, the amount due or to become due thereon, and deliver the same, together with the note or other evidence of indebt- edness secured by said mortgage, to the person paying the said amount or to the clerk with whom the deposit is made, and the holder of the mortgage will only receive as Code, Sec. 3981. Code, Sec. 3983. 30 Code, Sec. 3982; Frantz v. Hanford, 87-469. 52 EXECUTIONS AND EXEMPTIONS. [ 812. the amount so stated to be due and the surplus, if any, will be returned to the person making the deposit. 38 When the attaching or execution creditor thus pays the amount of the claim under the mortgage, he will not be required to give an indemnifying bond on notice to the sheriff by the holder of the mortgage of his right to the property thereunder, or if one has been given, it will be released. 39 If under execution sale the mortgaged property does not sell for enough to pay the mortgage debt, interest and costs of sale, the judgment creditor will be liable for all costs thus made, but if a greater sum is realized the officer conducting the sale must at once pay to the mort- gage holder the amount due thereunder and apply the surplus on the execution. 40 For the purpose of enabling the execution or attach- ing creditor to determine the amount to be tendered or deposited to hold the levy under the writ of attachment or execution, the person entitled to receive payment of the mortgage debt must deliver to any such person, upon written demand therefor, a statement in writing under oath showing the nature and amount of the original debt, the date and the amount of each payment, if any, which has been made thereon, and an itemized statement of the amount then due and unpaid. 41 If the right of the mortgagee to receive such or any sum is for any reason questioned by the levying creditor, he may within ten days after the levy or after demand is made for a state- ment of the amount due, commence an action in equity to contest such right, upon filing a bond in a penalty double the amount of such mortgage, conditioned for the payment of any sum to be found due to the person entitled thereto, with sureties to be approved by the clerk, and if such mortgagee is a non-resident or his resi- dence is unknown, service may be had by publication as in other actions, but if such residence becomes known ss Code, Sec. 3984. * Code, Sec. 3986; Tyler v. Budd, 3 Code, Sec. 3985. 64 N. W., 679. *i Code, Sec. 3987. 812.] EXECUTIONS AND EXEMPTIONS. 5$ before final submission, the court may order personal service to be made. If commenced at law the court may transfer the same to the equity calendar as in other cases. The court may appoint a receiver and must de- termine the amount due on the mortgage and all other questions properly presented, and may continue and pre- serve or dismiss the lien of the levy, the costs to be taxed to the losing party. If there are two or more mortgages, the creditor may admit the validity of one or more, and make the required deposit as to such, and contest the other, and where there are two or more such mortgages, each of which is questioned, a failure to establish the invalidity of all will not defeat the rights of the levying creditor, but in such case the decree must determine the priority of liens and direct the order of payment out of the proceeds of the property, which must be sold under a special execution to be awarded in said cause. A cred- itor may, however, contest in any other way the validity of any mortgage. 42 A failure to make the statement above mentioned when required will postpone the lien of the mortgage and give the levy of the writ of attachment or execution priority over the claim of the holder there- of. 43 If the mortgagee before the levy of an attachment or execution has been garnished at the suit of a creditor of the mortgagor, a creditor desiring to seize the mort- gaged property under a writ of attachment or execution must pay to the holder of the mortgage, or deposit with the clerk, in addition to the mortgage debt, the sum claimed under the garnishment. 44 Prior to the enactment of this statute it was held, generally, that the interest of the mortgagor in mort- gaged chattels could not be levied on. 45 And it was also held that the proper method of reaching mortgaged chattels was by garnishment of the mortgagee. 46 The 42 Code, Sec. 3988; Hibbard v. ** Code, Sec. 3990. Zenor, 75-471; Thomas v. Farley Campbell v. Leonard, 11-489 r Mfg. Co., 76-735; Citizens State Bk. Gordon v. Hardin, 33-550; Van- v. Council Bluffs Fuel Co., 89-618; slyck v. Mills, 34-375; Porter v, Clark v. Patton, 92-247. Knight, 63-365. Code, Sec. 3989. 46 Torbet v. Hayden, 11-444; J54 EXECUTIONS AND EXEMPTIONS. [ 813. levy of an attachment on mortgaged chattels is not void .because of a failure to pay or offer to pay the mortgage 'debt where the creditors are contesting the validity of the mortgage. 47 Before a creditor can contest the right of the mortgagee under this statute he must acquire an apparent lien upon the property by making a levy as therein provided. 48 But when a mortgage is alleged to be fraudulent the creditor may resort to any other rem- edy which was available to him before the passage of this statute. 49 As to the effect of the levy upon a subse- quent valid mortgage taken with knowledge of the levy. 50 Where execution is levied on mortgage chattels the deposit by the execution creditor of the amount of the mortgage debt is properly deducted from the amount realized at the sale. 51 813. Of the levy on partnership property and proceedings thereunder, When the officer has an exe- cution in his hands against one owning property jointly, in common or in partnership with another, he may levy on and take possession of such property sufficiently to enable him to appraise and inventory the same, and for that purpose must call to his assistance three disinter- ested persons; which inventory and appraisement must be returned by the officer with the execution, and he must state in his return who claims to own the prop- erty. 52 And in such a case, the plaintiff will, from the time the property was so levied on, have a lien on the interest of the defendant therein and may commence an action in equity to ascertain the nature and extent of such interest, and to enforce the lien, and if it be deemed necessary or proper by the court, a receiver may be appointed to take possession of the property. 53 The interest of the defend- Buck-Reiner Co. v. Beatty, 82-353; so Clark v. Patton, 92-247. Blotcky v. O'Neill, 83-574. si Tyler v. Budd, 64 N. W., 679. 47 Hibbard v. Zenor, 75-471. Code, Sec. 3977; Lambert v. Thomas v. Farley Mfg. Co., Powers, 36-18; see Richards v. 76-735. Haines, 30-574. 49 Citizens State Bk. v. Council 53 Code, Sec. 3978; Richards v. Bluffs Fuel Co., 89-618. Haines, 30-574; Lambert v. Pow- 814. ] EXECUTIONS AND EXEMPTIONS. 55 ant in the assets of a partnership of which he is a mem- ber, is liable on execution, and must be first exhausted before resort can be had to his homestead. 54 When a separate creditor of an individual partner levied on and sold partnership property, without bringing an action to determine the partner's interest therein, as provided by law, such sale was held invalid as against creditors of the partnership who afterward levied on the same property. 55 When it is sought to reach an interest of a party in partnership property, the burden is on the plaintiff to show that the party is a member of the partnership, and, unless such fact is established by the evidence, the ap- pointment of a receiver to determine the value of his interest is erroneous. 56 The creditor of an insolvent per- son may subject to the payment of his debt, real prop- erty, the title to which is in the insolvent's wife's name, but toward the payment of which the debtor has con- tributed, to the extent of such contribution, and this is so even though the property in controversy is the home- stead. 57 814. Of executions against municipal corpora- tions. If the sheriff has in his hands an execution against a municipal corporation, he must levy the same upon the property of such corporation, not exempt from execution, if any be found, and, if none such is found, the sheriff must return the writ, reciting the facts in his return; if no property be found, or if the judgment cred- itor elect not to issue execution against the corporation, a tax must be levied as early as practicable to pay off the judgment, and when a tax has been so levied and any part thereof collected, the treasurer of the corporation must pay the same to the judgment creditor or to the clerk of the court in w r hich judgment was rendered in satisfaction thereof. 58 A municipal corporation can ex- ers, 36-18; Aultman v. Fuller, 53- Be Dupuy v. Sheak, 57-361. 60. 57 Croup v. Morton, 49-16. 54 Lambert v. Powers, 36-18. BS Code, Sec. 3973. 55 Aultman v. Fuller, 53-60. 56 EXECUTIONS AND EXEMPTIONS. [ 815. ercise the power of taxation only when expressly con- ferred by statute. 59 But when a judgment against a municipal corporation can be paid in no other manner, it is the duty of the corporate authorities to levy a special tax to discharge the same if within the limit of their power to levy taxes. 60 And such duty will be enforced by mandamus. 61 And when it is not in the power of the corporation to pay off the judgment by a single levy, it may make levies from year to year until the indebted- ness is paid. 62 While a judgment creditor may take the scrip of a municipal corporation in payment of his judg- ment, he is not compelled to do so. 63 It was held under the revision of 1860 that if the proper officers of a munici- pal corporation having power to levy a tax for the pay- ment of a judgment refused to do so after a demand made, they were individually liable. 64 If the current ex- pense of a corporation absorbs the entire tax author- ized to be levied, the officers of such corporation are not liable for refusing to make a further levy, nor for a failure to set apart a portion of that levy in payment of the judgment, 65 and the provisions of section 3049 of the code are applicable to school districts. 66 If the corporation purposely makes its assessment and valuation low to avoid a judgment against it, it may be compelled by mandamus to make a fair assessment. 67 The tax may be an addition to that provided for in sections 496 to 498 of the code. 68 815. How stock interests of the defendant in a corporation are levied on. Stock interests owned by the defendant in any company or corporation, also debts due him and property of his in the hands of third per- 59 Clark v. Davenport, 14-494; es Porter v. Thompson, 22-391; Jeffries v. Lawrence, 42-498: Iowa Oswald v. Thedinga, 17-13. R. L. Co. v. County of Sac, 39-124. 64 Same as No. 63 above. so Oswald v. Thedinga, 17-13; es Porter v. Thompson, 22-391; Coy v. Lyons, 17-1; Coffin v. City Coffin v. Davenport, 26-515. Council, etc., 26-515; Porter v. ee Boynton v. Dist. Twp., 34-510; Thompson, 22-391; Iowa R. L. Co. Stevenson v. Dist. Twp., 35-462; v. County of Sac, 39-124. Brown v. Crego, 32-498; State v i Coy v. Lyons, 17-1; Boynton v. Davenport, 12-335. Dist. Twp., 34-510. or Coffin v. Davenport, 26-515. 62 Boynton v. Dist. Twp., 34-510. sRice v. Walker, 44-458. 816, 817.] EXECUTIONS AND EXEMPTIONS. 57 sons, may be levied upon by process of garnishment. 69 But, as we have seen, judgments owned by him may be levied on and sold under execution without garnish- ment. 70 816. Debtor may pay the sheriff. After the rendition of a judgment, any person indebted to the de- fendant in execution may pay to the sheriff the amount of such indebtedness, or so much thereof as is neces- sary to satisfy the execution, and the sheriff's receipt will be a sufficient discharge of the debt to the extent of such payment. 71 The assignee of railroad bonds under an assignment made after the levy of an execution thereon takes them subject to the levy. 72 817. Effect of the levy, surplus, etc. When property subject to execution, and sufficient to pay the debt, has been levied on and advertised as provided by law, n-either plaintiff nor his assignee can treat it as a nullity, and sue out a second execution to be levied on additional property; sometimes the writ may be ordered returned by the plaintiff or his assignee after levy and before sale, as when further time is given, or the proceed- ings are illegal, or irregular, or when the sale, if made, would be void. 73 When the sheriff levies on the prop- erty of a third person the act is a tort and the writ does not protect him, 74 and the officer is liable as a trespasser to the owner. 75 Or the owner may replevin the property without making any demand therefor. 76 Where a sur- plus arises from a sale of property by the sheriff on fore- closure of a mortgage, and he has an execution in his hands against the party entitled to such surplus, he may levy on such surplus and apply it on such execution. 77 And when he has other executions in his hands he may 69 Code, Sec. 3974; Claflin v. Downard v. Grenshaw, 49-296; Iowa City, 12-286; Lambert v. Pow- Code. Sec. 4042. ers, 36-18. 74 Shea v. Watkins, 12-605. 70 Code, Sec. 3971. 75 Rakestraw v. Hamilton, 14- 71 Code, Sec. 3972. 147. 72 Hetherington v. Hayden, 11- 76 Gimble v. Ackley, 12-27; Shea 335. v. Watkins, 12-605. 73 McWilliams v. Myers, 10-325; 77 Payne v. Billingham, 10-360. 58 EXECUTIONS AND EXEMPTIONS. [ 818. apply the surplus thereon, whether it arises from a sale of mortgaged premises or on a general execution; if a sur- plus still remains, it must be paid to the debtor unless there are liens upon the property which ought to be paid therefrom and the holders of them make claim to such surplus, in which case the same must be paid into the hands of the clerk to be applied as ordered by the court. 78 Property in the hands of a receiver appointed by the court is not liable to be seized on execution. Ordinarily a levy on sufficient personal property to satisfy the judg- ment becomes prima facie a satisfaction of the claim as to junior execution creditors, and sometimes, it seems, as to the defendant in execution. 80 And a release of the levy without the knowledge of a surety will release him, and no judgment can be sued on while property sufficient to satisfy it is held under execution. 81 818. When an indemnity bond may be de- manded. An officer must levy the execution in his hands on any personal property in the possession of, or thai he has reason to believe belongs to the defendant, or on which the plaintiff directs him to levy, unless he has received notice in writing under oath from some other person, his agent or attorney, that such property belongs to him, or, if after levy he receives such notice, he may release the property unless an indemnifying bond is given, but the officer will be protected from all liability by reason of such levy until he receives such written notice. 82 And the provisions of this section apply also to levies under special execution. 83 A judgment creditor to induce the sheriff to sell property levied upon under an execution where no notice had been received that the property was claimed by a third person, voluntarily ex- 78 Code, Sec. 4030. Pease, 42-488; Finch v. Hollinger, 79 Martin v. Davis, 21-535. 43-598; West v. St. John, 63-287; so Lucas v. Cassady, 2 G. Gr., Cox v. Currier, 62-551; Allen v. 208; Williams v. Gartfell. 4 G. Gr., Wheeler, 54-628; Evans v. Thurs- 287; see Reed v. Crossthwaite, 6- ton. 53-122: Whitney v. Gammon, 219. . 67 N. W., 405. si Sherraden v. Parker, 24-28; 83 Bank of Reinbeck v. Brown, Peck v. Parchen, 52-46. 76-696. 82 Code, Sec. 3991; Koster v. 818. ] EXECUTIONS AND EXEMPTIONS. 50 edited a bond to indemnify the sheriff conditioned to pay "to any claimant of the property" the damages he may sustain in consequence of the levy and sale. Such creditor and his sureties were not liable on the bond. 84 Under code 3991 it is sufficient to serve the notice on the deputy who made the levy, and the claimant having delivered the notice and a copy to the deputy, and he having read the original, and indorsed acceptance of service thereon and returned it, keeping a copy, the service is sufficient. 85 The action of replevin will not lie against an officer holding the property under execu- tion, unless, prior to the commencement of the suit, he is served with written notice of the ownership of such property. 86 But it seems that the failure of plaintiff to plead service of his notice may be waived, as may objec- tions to the sufficiency of the notice or service. 87 The reading of a bill of sale to the officer does not constitute the notice required by the statute. 88 An officer can not recover for expenses and attorney's fees in defending a replevin suit for the property levied on in which he is successful. 89 Service of the written notice upon the dep- uty sheriff who made the levy is sufficient, 90 and where the execution was levied on mortgaged chattels and the mortgagee gave written notice to the officer that he was the owner of the chattels by virtue of the chattel mort- gage, and demanded their immediate return, it was held the notice was sufficient. 91 Where an officer had several executions in favor of several plaintiffs and all against the same defendant which he levied on the property as that of the defendant, which was claimed by a third per- son as owner, and such third person gave one notice to s* Whitney v. Gammon, 67 N. W., s Gray v. Parker, 49-624. 405. 89 Rickabaugh v. Bada, 50-56; ss Peterman v. Jones, 63 N. W., Danforth v. Harlow, 76-236; Dolit- 338; Burrows v. Waddell, 52-195. tie v. Hall, 78-571. se Finch v. Hollinger, 43-598; Burrows v. Waddell, 52-195; Koster v. Pease, 42-488; Peterson Waterhouse v. Black, 87-317; Tur- v. Espeset, 48-262; Allen v. Wheel- ner v. Younker, 76-258; Linden v. er, 54-628; see chapter on Attach- Green, 81-365. ments. Gunsel v. McDowell, 67-521. ss Harrier v. Fassett, 56-264. i Curtis v. O'Brien, 20-376; Fe- sewaugh v. Eridgeford, 69-334; javary v. Broesch, 52-88. see Malvin v. Christoph, 54-562; 62 Van Stadden v. Kline, 64-180. Rawson v. Spangler, 62-59. . es Congregational Society T. 57 Malvin v. Christoph, 54-562; Fleming, 11-533. Code. Sec. 4017; Glover v. Narey, encode, Sec. 4007; Whiting r. 92-286. Story County, 54-81; Davenport v. ss Richard v. Haines, 30-574. Peoria F. & M. Ins. Co., 17-276; sa Code, Sec. 4017; Ellsworth v. Fort Dodge v. Moore, 37-389; Lewis Savre, 67-449. v. Chickasaw County., 50-234; Lor- 70 EXECUTIONS AND EXEMPTIONS. [ S30, 831. premises owned by it and used for a hospital. 65 Insur- ance money is by statute exempt from execution. 66 830. Of waiver of right of exemption. Any person entitled to any of the exemptions provided by sec- tion 4008 of the code does not waive his rights by failing to designate or select such exempt property, or by failing to object to a levy thereon, unless failing or refusing so to do when required in writing to make such designation or selection by the officer about to levy. 67 A waiver of exemption laws contained in a promissory note will not, when judgment is obtained thereon, entitle plaintiff to have execution levied on property exempt from execu- tion. 68 Under the former law, if the owner of exempt personal property was present at the levy and permitted the property to be taken, without objection, he was deemed to have waived his right of exemption, and was estopped from afterward asserting it. 69 When it ap- pears that the debtor has the right to select one of sev- eral vehicles as exempt, and such selection was made before levy, it should be respected by the officer. 70 831. Of securing the claims of laborers of in- solvent corporations, etc. When the property of any company, corporation, firm or person is seized upon by any process of any court, or placed in the hands of a receiver, trustee, or assignee for the purpose of paying or securing the payment of the debts of such company, corporation, firm, or person, the debts owing to em- ployes for labor performed within the ninety days next preceding the seizure or transfer of such property, to an amount not exceeding one hundred dollars to each person, are preferred debts and will be paid in full, or if ing v. Small, 50-271; Charnock v. worth v. Savre, 67-449; see Angell Dist. Twp., 51-70. v. Johnson, 51-625; Mofflt v. Ad- es Davenport v. Peoria F. & M. ams, 60-44; Glover v. Narey, 92- Ins. Co., 17-276. 286. ee Code, Sec. 1805; but see Me- es Curtis v. O'Brien, 20-376. Clure v. Johnson, 56-620; Smedley 69 Angell v. Johnson, 51-625; v. Fell, 43-607; Murray v. Wells, Moffit v. Adams, 60-44; Green v. 53-256; Friedlander v. Mahoney, Blunt, 59-79. 31-311. 70 Parker v. Haley, 60-325. 67 Code, Sees. 4008,4017; Ells- 832.] EXECUTIONS AND EXEMPTIONS. 71 there is not sufficient realized from such property to pay the same in full, then after the payment of costs, ratably out of the fund remaining, but such preferences shall be junior and inferior to mechanics' liens for labor in open- ing and developing coal mines. 71 Any employe desiring to enforce his claim for wages at any time after the seizure of the property under exe- cution or writ of attachment and before sale thereof is ordered, must present to the officer levying on such prop- erty or to such receiver, trustee or assignee, or to the court having custody of such property, or from which such process issued, a statement under oath showing the amount due after allowing all just credits and set-offs, and the kind of work for which such wages are due, and when performed, and unless objection be made thereto as provided in the following section, such claim must be allowed and paid to the person entitled thereto, after first paying all costs occasioned by the proceeding out of the proceeds of the sale of the property so seized or placed in the hands of a receiver, trustee, or assignee, subject to the provisions of the preceding section. 72 Any person interested may contest any claim or any part thereof by filing objections thereto supported by affidavit with such court, receiver, trustee, or assignee, and its validity must be determined in the same way the validity of other claims are which are sought to be en- forced against such property. 73 Claims of employes for labor if not contested, or if allowed after contest, will have priority over all claims against, or liens upon property, except prior mechanics' liens for labor in opening or developing coal mines as allowed by law. 74 832. Of depriving persons of the benefit of the exemption laws. If any person, with intent to deprive a resident in good faith of this State of the benefit of the exemption laws thereof, sends a claim against such resi- 71 Code, Sec. 4019. 73 Code, Sec. 4021. 72 Code, Sec. 4020. 74 Code, Sec. 4022. 72 EXECUTIONS AND EXEMPTIONS. [ 833, 834. dent and belonging to a resident, to another State for action, or causes action to be brought on such claim in another State, or assigns or transfers such claim to a non-resident of the State with intent that action thereon be brought in the courts of another State, the action in either case being one which might have been brought in this State, and the property or debt sought to be reached by such action being such as might, but for the exemption laws of this State, have been reached by action in the courts of this State, he is guilty of a misdemeanor and may be punished by a fine of not less than ten nor more than fifty dollars. 75 833. Of exchange of exempt property, liens, etc. When property which is exempt is exchanged for property not by law exempt, the latter is liable for the owner's debts. 76 If exempt property is converted into a money claim against the will of the owner, it seems that such money will be exempt for a reasonable time. 77 The statute as to exemptions does not prevent the at- tachment of other liens recognized by law, such as inn- keepers' liens. 78 A mortgagor of exempt property may maintain an action for a wrongful levy thereon. 79 834. Of the construction of the statute, remedy, etc. It is the policy of courts to construe exemption laws with great liberality. 80 And when property ordi- narily exempt, ip levied on, on the ground that the owner is about to leave the State, the owner, in an action against the officer for the wrongful conversion of the property, is not estopped by his declarations of intention previously made, and evidence of such declarations is not admissible against him unless made at, after, or so near the time of starting, as to be a part of the res gesta. 81 And in such a case it is not competent for the 75 Code, Sec. 4018; Willard v. " Swan v. Bournes, 47-501; Sturm, 65 N. W., 847. Munson v. Porter, 63-453. 76 Friedlander v. Mahoney, 31- Evans v. St. Paul, etc., 63-204. 311. so Bevan v. Haydcn, 13-122; Dav- TT Kaiser v. Seaton, 62-463; is v. Humphrey, 22-137; Kaiser v. Mudge v. Lanning, 68-641. Seaton, 62-463. si Tubbs v. Garrison, 68-44. 834.] EXECUTIONS AND EXEMPTIONS. 73 officer to show that he was informed, before making the levy, that plaintiff had left the State. 82 The exemption of property from sale on execution relates to the remedy and is governed by the lex fori and not by the lex loci contractus; hence, if the remedy is sought in this State, our laws govern. 83 2 Same as No. 81. U. P. R. Co., 60-346; Leiber v. U. P. ss Newell v. Hayden, 8-140; Hel- R. Co., 49-688; Burlington & M. R. fensteinv. Cave, 3-287; Smith v. C. Co. v. Thompson, 31 Kan., 180; & N. W. R. Co., 60-312; Mooney v. Broadstreet v. Clarke, 65-670. CHAPTER L. OF PROCEEDINGS AUXILIARY TO EXECUTION. Sec. 835. Of proceedings after execution is returned. 836. Of proceedings before execution is returned. 837. Of granting the order. 838. Of the examination of the debtor. 839. Of power of the court or officer on the hearing. 840. Of disposal of equitable interests in lands. 841. Of debtor in contempt. 842. When a warrant of arrest will issue. 843. When the debtor may give bond. 844. Of the effect of the statute. 845. Of compensation of officers, etc. 846. Of actions by equitable proceedings. 847. Of the petition in equity supplemental to execution. 848. Of the answers. 849. Of the lien. 850. Of enforcing surrender of property. Section 835. Of proceedings after execution is re- turned. When an execution against the property of a judgment debtor, or one of several judgment debtors on the same judgment, has been issued from the superior dis- trict or supreme court to the sheriff of the county where such debtor resides, or, if he does not reside in the State, to the sheriff of the county where the judgment was ren- dered, or a transcript of a justice's judgment has been filed, and execution issued thereon is returned unsatis- fied, in whole or in part, the owner of the judgment is entitled to an order for the appearance and examination of such debtor. 1 The following form may be used in this case: i Code, Sec. 4072; Osborn v. Reardon, 79-175; Reardon v. Hen- ry, 82-134. 74 836.] PROCEEDINGS AUXILIARY TO EXECUTION. 75 FORM OF PETITION FOR EXAMINATION OF JUDGMENT DEBTOR. Title, | Venue. ) The plaintiff states: 1. That judgment was rendered in this court in favor of the plaintiff and against the defendant, , on the day of - 18 , for the sum of - - dollars, said judgment drawing per cent, interest from date of its rendition, and for costs. 2. That an execution was duly issued on said judgment, on the - day of , 18 , against the property of the said defendant in the county of , Iowa, which has been returned by the sheriff of said county wholly (or partly, as the case may be) unsatisfied. 3. That said defendant resides in said county of , Iowa. Wherefore plaintiff asks that an order issue for the appearance and examination of said defendant. , plaintiff. (Add verification). (The petition may be signed by attorney and verified by plaintiff or his agent, or attorney, if they show proper knowledge of the facts.) 836. Of proceedings before execution is returned. The same kind of an order may be obtained at any time after the execution has been issued, upon proof, by affida- vit of the party or otherwise, to the satisfaction of the court or judge who is to grant the same, that any judg- ment debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment. 2 A second examination without a new affidavit may be held to be a continuation of an examination previously had. 3 Such affidavit may be in the following form: FORM OF AFFIDAVIT FOR ORDER BEFORE RETURN OF EXECU- TION. Title, Venue. State of Iowa, County. y ' I, , being duly sworn, depose and say that I am the plaintiff In the above entitled action; that judgment was rendered thereon in my favor and against said , defendant, on the day of , 18 , in this court for dollars, drawing per cent. interest from date of its rendition, and for costs. 2 Code, Sec. 4073. 3 McDonnell v. Henderson, 74- 619. ?G PBOCEEDIXGS AUXILIARY TO EXECUTION. [ 837. That on the day of , 18 , an execution was issued on said judgment directed to the sheriff of said county; that said de- fendant is a resident of said county, (or if of another county so state), and that he has property therein which he unjustly refuses to apply toward the satisfaction of said judgment. (Add verification.) (This affidavit may be sworn to before any officer having authority to administer an oath.) The proceedings treated of in this chapter are not ex- clusive for the purpose of discovering a judgment debtor's property and subjecting it to execution in satisfaction of the judgment, but it is a proceeding at law additional to the remedy provided in equity. Before it can be made available there must be a judgment or order enforceable by execution. And it has been held that an order that an execution issue against a corporation, with a clause inserted therein directing that it shall be levied upon the property of certain stockholders, does not render such stockholders judgment debtors within the meaning of the statute, and they can not be compelled, after the return of such an execution, to disclose property in the summary manner provided by this statute, as there is no judgment against them individually. 4 837. Of granting the order. The order may be made by the superior or district court of the county in which the judgment was rendered, or by the district court of the county to which execution has been issued, or in vacation by a judge of said court, and it may require the debtor to appear and answer before such court, or judge, or before a referee appointed for that purpose by the court or judge issuing the order, to report either the evidence or the facts. 5 It may be in the following form : Title, J Venue, f It appearing to the undersigned by the petition (or affidavit, as the case may be) that a judgment has been rendered (here recite the statements of the petition or affidavit). Therefore, in the name of the State of Iowa, you, the said defendant, are hereby commanded to * Code, Sees. 4072, 4073; Bailey B Code, Sec. 4074. v. The D. W. R. Co., 13-97. 838-9.] PROCEEDINGS AUXILIARY TO EXECUTION". 77 appear before (the court, judge or referee, as the case may be), at the (fix the town or city) in county, on the day of , 18 , at , o'clock . M., to make discovery concerning your property. Dated the day of , 18. (Signature of judge). If the order issues when the court is in session it should be under the hand of the clerk and seal of the court, and in such case the order should read as of the court, instead of the judge. 838. Of the examination of the debtor. As has been seen the examination may be had before the court, judge or referee appointed for that purpose. 6 The debtor may be interrogated in relation to any facts calculated to show the amount of his property or the disposition he has made of it, or any other matter pertaining to the purpose for which the examination is permitted to be made, and the interrogatories and answers must be reduced to writ- ing, and preserved by the court or officer before whom they are taken. All examinations and answers must be under oath, and no person on such examination is excused from answering any question on the ground that his ex- amination w r ill tend to convict him of a fraud, but his answers can not be used in evidence against him on a prosecution for such fraud. 7 Witnesses may be required by the order of the court or judge, or by subpoenas from the referee, to appear and testify upon such examination in the same manner as upon the trial of an issue. 8 839. Of power of the court or officer upon the hearing. If any property, rights or credits subject to execution are found on the examination, an execution may be issued; and the same be levied thereon as in other cases. The court or judge may order any property of the judgment debtor not exempt by law in the hands of him- self, or of any other person or corporation, or due to the judgment debtor, to be delivered up or in any other mode Code, Sec. 4074. s Code, Sec. 4076; McDonnell v. T Code, Sec. 4075; see Parks v. Henderson, 74-619. Johnson, 86-475. 78 PROCEEDINGS AUXILIARY TO EXECTTiOX. [ 840. applied toward the satisfaction of the judgment. 9 But such an order should not be made when the ordinary processes of law are adequate for the subjugation of the property to the payment of the debt 10 The object of this proceeding is to obtain an order for the payment of the debt, and not alone to settle the right of the creditor to the application of the proceeds of a certain fund. 11 It has been held, however, that the provisions of the law, in so far as they purport to confer upon the examining officer the power to order any property in the hands of the judg- ment debtor, or of others, to be delivered up and applied in satisfaction of the judgment under which the proceed- ings are had, and the further power to punish, as for con- tempt, any disobedience of any order made by the exam- ining officer, are repugnant to sections 9 and 10 of article 1 of the constitution, and therefore void. But this decision has been overruled and the present law held constitu- tional. 12 The court or judge may also, by order, appoint the sheriff of the proper county, or other suitable person, a receiver of the property of the debtor, and may also, by order, forbid a transfer or other disposition of the prop- erty of the judgment debtor not exempt by law, or may forbid any interference therewith. The court, judge or referee has power to continue his proceedings from time to time until they shall be completed. 13 840. Of disposal of equitable interests in land If it appears on the hearing that the judgment debtor has any equitable interest in real estate in the county in which the proceedings are had, as mortgagor, mortgagee, or otherwise, and the interest of the debtor can be ascer- tained, as between himself and the person holding the legal estate, or having any lien on or interest in the same, without controversy as to the interest of such person, the receiver may be ordered to sell and convey such real estate, or the debtor's equitable interest therein, in the 9 Code, Sec. 4077. berry v. Edwards, 67-621; Farmer loReardon v. Henry, 82-134. v. Hoffman. 67-678; Marriage v. 11 Ex par*" Grace, 12-208. Woodruff. 77-291. 12 Ex parte Grace, 12-208; Eiken- is Code, Sec. 4081. 841-3.] PROCEEDINGS AUXILIARY TO EXECUTION. 79 same manner as is provided by law for the sale of real estate on execution. 14 And if the sheriff is appointed re- ceiver, he and his sureties will be liable on his official bond for the faithful discharge of his duties as such receiver. 16 841. Of debtor in contempt. If the judgment debtor fails to appear after being personally served with notice to that effect, or if he fails to make full answers to all proper interrogatories propounded to him, he will be guilty of contempt, and may be arrested and imprisoned until he complies with the requirements of the law in this respect. And if any person, party or witness disobey an order of the court, or judge, or referee, duly served, such person, party or witness may be punished as for con- tempt, 16 The order mentioned must be in writing, and signed by the court, or judge, or referee making the same, and must be served as an original notice in other cases. 17 If, however, a party is present and has had an opportunity to be heard, it need not appear that he has been served with the order contemplated by the statute. 18 842. When a warrant of arrest will issue. Upon proof to the satisfaction of the court, or judge authorized to grant the order, that there is danger that the defendant will leave the state, or that he will conceal himself, the court or judge, instead of issuing the order, may issue a warrant for the arrest of the debtor and for bringing him forthwith before the court or judge authorized to take his examination; and after he is thus brought before said court or judge he may be examined in the same manner and with like effect as heretofore stated. 19 And this war- rant may be issued by a referee appointed by the court to examine the judgment debtor. 20 843. When the debtor may give bond. On being brought before the court or judge he may enter into an "Code, Sec. 4079. 134; Esty v. Fuller Impt. Co., 82- 18 Code, Sec. 4080. 678. Code, Sec. 4082; Eikenberry v. 17 Code> Sec - 4083 - Edwards, 67-621; Farmer v. Hoff- 61 " McDonne11 v. Henderson, 74- man, 67-678; Marriage v. Wood- 10 Code, Sec. 4085. ruff, 77-291; Reardon v. Henry, 82- 20 Marriage v. Woodruff, 77-291. 80 PROCEEDINGS AUXILIARY TO EXECUTION. [ 844-6. undertaking in such sum as the court or judge shall pre- scribe, with one or more sureties, that he will attend from time to time for examination before the court, or judge, as shall be directed, and will not in the meantime dispose of his property or any part thereof, in default of which he shall continue under arrest and may be committed to jail on the warrant of such court, or officer, from time to time, for safe keeping until the examination is concluded. 21 844. Of the effect of the statute. It was held by the supreme court that the provisions of chapter 126 of the revision, and which are almost identical with the law now under consideration, were unconstitutional. 22 But recently the present law has been construed by the su- preme court and held constitutional, though Beck and Adams, justices, dissent. 23 845. Of compensation of officers, etc. Sheriffs, referees, receivers and witnesses receive such compensa- tion as is allowed for like services in other cases, to be taxed as costs in the case, and the collection thereof from such party or parties as ought to pay the same may be enforced by an order or execution. 24 846. Of actions by equitable proceedings. At any time after the rendition of a judgment an action by equitable proceedings may be brought to subject any property, money, rights, credits or interest therein be- longing to the defendant, to the satisfaction of the judg- ment, and in such action persons indebted to the judg- ment debtor, or holding any property or money in which such debtor has any interest, or the evidences of sureties for the same, may be made defendants. 25 Under the re- vision of 1860 it was necessary to issue execution on the judgment and have it returned unsatisfied, either in whole or in part, for want of property of the judgment debtor to 21 Farmer v. Hoffman, 67-678; 621; Farmer v. Hoffman, 67-678; Code, Sec. 4086; Ex parte Grace, Marriage v. Woodruff, 77-291. 12-208; Eikenberry v. Edwards, 67- 2^ Code, Sec. 4084. 621. 2.1 Code, Sec. 4087; Rridgman v. 22 Ex parte Grace, 12-208. McKissick. 15-260; Faivre v. Gill- 23 Eikenberry v. Edwards 67- man, 84-573. 847.] PROCEEDINGS AUXILIARY TO EXECUTION. 81 satisfy the same before this proceeding could be com- menced. 26 In the absence of a holding that it is not neces- sary to issue execution and have it returned unsatisfied before bringing this action, the safer practice is to do so. 27 But it is held that the lien of a judgment attaches to an equitable interest in real estate, and it may be subjected to the satisfaction of the judgment by proceedings in equity for that purpose, and a junior judgment creditor by first instituting his proceedings in equity to subject the property to the payment of his debt thus acquires a pri- ority over the senior judgment creditor who is less dili- gent. 28 This action can only be maintained after a judg- ment has been recovered. 29 By this proceeding he ac- quires a lien on the property. 30 The notice and copy of the petition must be served or a lien will not be effected. 31 847. Of the petition in equity supplemental to execution, FORM OP PETITION IN EQUITY SUPPLEMENTAL TO EXECU- TION. Title, ) Venue. ) Par. 1. Plaintiff states: That on the day of , 18 , judgment was rendered in the (name of court) in his favor and against the defendant for dollars and costs. Par. 2. That on the day of , 18 , an execution was issued on said judgment directed to the sheriff of county, Iowa, in which the defendant resided, and the same has been re- turned wholly unsatisfied, and no property of said defendant sub- ject to execution could be found in said county on which to levy, and said judgment is wholly unsatisfied. Par. 3. That said defendant, , on the day of , 18 , (before judgment was rendered) was the owner of the following described real (or personal) property, to wit, (here describe it) and did make a pretended conveyance (or sale) of the same to the said , defendant, with the intent to hinder, delay and defraud plaintiff in the collection of his said judgment, and the said , defendant, took such conveyance (or made such purchase) with the like intent and without any consideration paid therefor. 28 Revision, Sec. 3150; see Lov- 20 Faivre v. Gillman, 84-573; ing v. Pairo, 10-282, 289. Ware v. Delahaye, 64 N. W., 640. 27 McCormick Harv. Mch. Co. v. so Falker v. Linehan, 88-641. Gates, 75-343. . i Ware v. Delahaye, 64 N. W., zs Bridgman v. McKissick, 15- 640. 260. Vol. II-6 83 PROCEEDINGS AUXILIARY TO EXECUTION. [ 848J50. / Par. 4. That said defendant, , is indebted to the" , in the sum of dollars upon a negotiable promissory note which is now held by the said , defendant, dated the day of , 18 , payable on the - - day of - , 18 , and given for $1,000 and drawing - - per cent, interest from date (or state that he holds money or property or securities belonging to the debtor, or in which he has an interest, and state how he is indebted, as that the judgment debtor has made an assignment for the benefit of creditors, which was done to defeat, delay and defraud plaintiff, etc.). Wherefore plaintiff asks that said conveyance (or sale or assign- ment) be decreed and adjudged to be fraudulent and void as against him; that the said defendants, and , be compelled to account, under the direction of the court, for all money, property, securities, etc., and surrender the same, under the directions of the court, and that plaintiff's judgment may be satisfied out of the same, together with the costs of this proceeding. , attorney for plaintiff. (Add verification.) 848. Of the answers. The answers of all the de- fendants must be verified by their own oath and not by that of an agent or attorney, and the court must enforce full and explicit discoveries in the answers by process of contempt, or upon failure to answer the petition, or any part thereof, as fully and explicitly as the court may re- quire; the same, or such part not thus answered, will be deemed true, and such order made or judgment rendered as the nature of the case may require. 32 849. Of the lien. Plaintiff will acquire a lien on the property of the judgment debtor, or his interest there- in, in the hands of any defendant, or under his control, which is sufficiently described in the petition, from the time of the service of notice and a copy of the petition on the defendant holding or controlling such property, or any interest therein. 33 An ordinary original notice, with a copy of the petition, must be served on the defendants, to which they must appear and plead in the time pre- scribed for pleading in equitable actions. 34 850. Of enforcing surrender of property. The court must enforce the surrender of the money, or securi- Code, Sec. 4088. Douglass. 89-150; Ware v. Purdy, ss Code, Sec. 4089; Boggs v. 60 N. W., 526. 34 Code, Sec. 4088. 850.] PROCEEDINGS AUXILIARY TO EXECUTION. 83 ties therefor, or of any other property of the defendant in the execution which may be discovered in the action, and for this purpose may commit to jail any defendant or garnishee failing or refusing to make such surrender until it shall be done, or the court is satisfied that it is out of his power so to do. 35 And the provisions of the law relat- ing to equitable proceedings apply as well to equities of the debtor in real property as to moneys, choses in action or other personal property, but as to real property the remedy is merely cumulative. 36 35 Code, Sec. 4090. as Bridgman v. McKissick, 15- 260. CHAPTEE LI. Sec. 851. When an action of right will lie. 852. When an action to quiet title will lie. 853. Of the parties. 854. Of proceedings in an action to recover real property. 855. Of proceedings in an action to quiet title. 856. Of service of notice. 857. Of the petition in an action of right. 858. Of the answer. 859. Of practice. 860. Of the verdict. 861. Of judgment. 862. Of limitations, etc. 863. Of tenants. 864. Of notice in actions to quiet title. 865. Of the petition to quiet title. 866. Of disclaimer and costs. 867. Of new trials. 868. Of appeals. 869. Of constructive notice. Section 851. When an action of right will lie. Any person having a valid, subsisting interest in real property, and a right to the immediate possession thereof, may re-- cover the same by an action against any person acting as owner, landlord or tenant of the property claimed. 1 But an action by ordinary proceedings will not lie in favor of one not claiming to have the legal title, but simply the right of possession. 2 To maintain the action, the party must have a valid, subsisting interest in the premises, and a right to the im- mediate possession, and the defendant must be acting as iCode, Sec. 4183; Beatty v. 2 Kitteringham v. Blair Town Gregory, 17-109; Doolittle v. Har- Lot and Land Co., 66-280; Paige v. rington, Mor., 226; Kerr v. Leigh- Cole, 6-153; Pendergast v. B. & M. ton, 2 G. Greene, 196. R. R. Co., 53-326. 84 852.] BECOVEBY OF BEAL PEOPEBTY. 85" owner, landlord or tenant 3 One seeking to redeem in equity from a tax deed should bring his action under section 1440 of the code. 4 An action to establish and quiet title is an action for the recovery of real prop- erty and plaintiff must show title in himself. 5 The plain- tiff must recover on the strength of his own title. 6 The action of right is maintainable for corporeal, but not in- corporeal, hereditaments. The general rule being that an action of ejectment will lie for anything real of which the officer can deliver possession. 7 852. When an action to quiet title will lie. An action in the nature of an action of right will lie in favor of one having an interest in real property (whether in pos- session or not), against another who claims title to it, al- though not in possession of the property, for the purpose of determining and quieting the title. 8 But it will not lie against judgment creditors, and others not claiming title,* nor can it be maintained against one holding a certificate of tax sale and not claiming title. 10 But it will lie at the instance of executors, who, by the will, are given posses- sion and control of real property, for the purpose of carry- ing out the provisions of the will, 11 and it lies against a non-resident defendant, and the statutes relating to ser- vice of notice by publication apply in such a case, 12 and it may be maintained in all cases where the defendant makes some claim adverse to the estate of the plaintiff,, even if the defendant is in possession of the land. 13 It will lie by a claimant of swamp lands by conveyance from the state to quiet his interest. 14 It will lie by a legatee to quiet title against the widow of the testator who claims dower therein, 15 and by a railroad company to which land s See Nos. 1 and 2. Fejervary v. Langer, 9-159. * Callanan v. Lewis, 79-452. 10 Eldridge v. Kuehl, 27-160, 176, s Schlosser v. Crookshank, 65 N. " Laverty v. Sexton, 41-435. W., 344. 12 Miller v. Davison, 31-435. oMcCarty v. Rochel, 85-427; is Lewis v. Soule, 52-11; see- Kreuger v. Walker, 80-733. Bartlett v. Love, 48-103, 107; Lees- 7 Beatty v. Gregory, 17-109; see v. Wetmore, 58-170. Bush v. Sullivan, 3 G. Greene, 344. i* Snell v. D. & S. C. R. Co., 78- s Code, Sec. 4223; Fejervary v. 88. Langer, 9-159; Standish v. Dow, is Peet v. Feet, 81-172. 21-363; Eldridge v. Kuehl, 27-160. . 86 BECOVEKY OF SEAL PROPERTY. [ 853-856. has been granted after it has complied with the condi- tions of the grant 16 853. Of the parties, If the plaintiff in an action of right seeks to recover damages against the ancestor for rents and profits his administrator and heirs must be made parties. 17 An agent of the owner can not maintain an action in his own name. 18 The landlord in such action may be sub- stituted, when it appears that the defendant is only a ten- ant, but such substitution is not required, as the action may proceed against the tenant alone, but in such case the landlord would not be bound unless he had been notified of the action. 19 854. Of proceedings in an action for the recov- ery of real property. Actions for the recovery of real property must be by ordinary proceedings, and there can be no joinder and no counter claim therein except like proceedings, and as provided by statute; 20 but an equit- able defense may be interposed in this action. 21 The joinder of actions referred to in the statute relates to the cause of action, and not to the relief sought, and it seems an action in equity will lie if full relief can not be obtained by a decree quieting title. 22 855. Of proceedings in an action to quiet title. The action to quiet title, except as otherwise provided, is to be conducted as other actions by equitable proceed- ings. 23 856. Of service of notice. If the defendant is a non-resident and has an agent of record for the property in this State, service of the notice may be made on such agent in the same manner and with like effect as though made on the principal. 24 i Cole v. D. M. V. R. Co., 76-185. 186; Kramer v. Conger, 16-434; IT Cavender v. Smith, 8-360. Warren v. Crew, 22-315; Shawham isMcHenry v. Painter, 58-365. v. Long, 26-488; Van Orman v. i State v. Orwig, 34-112. Merrill, 27-476. 20 Code, Sec. 4182. 22 The County, etc., v. The I. F. 21 Rosierz v. Van Dam, 16-175, & S. C. R. Co., 49-657, 662. and see Thompson v. Hurley, 19- 23 Code, Sec. 4227. 331; Van Orman v. Spafford, 16- 24 Code, Sec. 4186. 857.] RECOVERY OF REAL PROPERTY. 87 857. Of the petition in an action of right. The plaintiff must recover on the strength of his own title. 25 Where the action is brought by a tenant in common or joint tenant of real property against his co-tenant, the plaintiff must show in addition to his evidence of right, that the defendant either denied the plaintiff's right, or did some act amounting to such denial, 26 and it would seem that the denial of plaintiff's right should be averred in the petition. If one tenant is a disseisor of his co- tenant he is liable to an action for rents and for waste. 27 The petition should also state that the plaintiff is en- titled to the possession of the premises, particularly de- scribing them, and state the quantity of his estate, and the extent of his interest therein, and that the defendant unlawfully keeps him out of possession, 28 and the dam- ages, if any, which he claims for withholding the property, and if other damages than the rents and profits are stated, it should set out the facts constituting the cause of such claim. 29 But the objection that plaintiff can not recover without proof that the defendant denied his right before suit brought, can not be made for the first time in the su- preme court 30 The plaintiff need not attach to his peti- tion the evidence upon which he relies to prove his title. 31 The plaintiff must attach to his petition an abstract of the title relied on, showing from and through whom such title was obtained, together with a statement of the book and page where the same appears of record, and if such title or any portion thereof is not in writing, or does not appear, that fact must be stated in the abstract. 32 As to when an action is one of right and not of trespass. 33 The petition may be in the following form: / 25 Code, Sec. 4184; Hurley v. Blair, 38-649; Larum v. Wilmer, Street, 29-429; 'Armstrong v. Pier- 35-244; Dunn v. Starkweather, 6- son, 4 G. Greene, 45; McCarty v. 466. Rochel, 85-427; Heitfz v. Cramer, so starry v. Starry, 21-254, 256. 84-497; Kreuger v. Walker, 80-733. si Boardman v. Beckwith, 18- 2 Code, Sec. 4185. 292; Larum v. Wilmer, 35-244, 247. 27 Dodge v. Davis, 85-77. 32 Code, Sec. 4188. as Barrett v. Love, 48-103, 123. ss Van Sickle v. Keith, 88-9. 29 Code, Sec. 4187, see Phillips v. 88 RECOVERY OF REAL PROPERTY. [ 858. FORM OF PETITION IN ACTION OF RIGHT. Title, ) Venue, j The plaintiff states: That he is entitled to the immediate possession of the following described property, to wit (give a particular description of the prem- ises) ; that he is the absolute owner thereof in fee simple (or what- ever the quantity of his estate, and the extent of his interest therein may be; that the defendant unlawfully keeps the plaintiff out of possession of said premises (and in case where the action is by one tenant in common or joint tenant against his co-tenant- insert the following: "that prior to the commencement of this action plaintiff demanded of said defendant possession of said premises, and said defendant denied plaintiff's right to the same or to any part thereof,") and that the plaintiff has sustained damages by reason of the wrong- ful withholding of said property by the defendant, in the loss of the rents and profits (if other damages are claimed, state the facts con- stituting the claim,) thereof, in the sum of dollars. Wherefore the plaintiff demands judgment for the immediate pos- session of said real property, and for dollars, damages and costs. , attorney for plaintiff. (Attach abstract of title.) (The petition may be verified, but need not be unless it is sought to quiet title.) 858. Of the answer. The defendant must attach to his answer, if he claims title, an abstract of the title relied on, showing from and through whom such title was obtained, together with a statement showing the book and page where the same appears of record, and if such title, or any portion thereof, is not in writing, or does not appear of record, such fact must be stated in the ab- stract. 34 The answer of the defendant, and of each, if more than one, must also set forth what part of the land he claims, and what interest he claims therein generally, and if as a mere tenant, the name and residence of his landlord must be given. 35 If defendant fails to state what interest in or title to the premises he claims, such answer is fatally defective, nor can he in his answer set out plain- tiff's title and then allege defects therein^ thereby raising immaterial issues. 36 a* Code, Sec. 4188. with. 18-292; Larum v. Wilmer, 35- 85 Code, Sec. 4189; Phillips v. 244,247. Blair, 38-649; Boardman v. Beck- se Gillis v. Black, 6-439. 859.] RECOVERY OF REAL PROPERTY. 89 Facts constituting an estoppel in pais need not be spe- cially pleaded ; the averment of the facts constituting de- fendant's interest is sufficient 37 If defendant aver and prove that he has a crop sowed, planted, or growing on the premises, the jury must find the value of the premises from the date of the trial till January 1st next succeeding, and no execution will issue till that time, if defendant executes, with sureties to be approved by the clerk, a bond in double such sum, to pay said snrn at that date. This bond has the force and effect of a judgment, and if not paid when due, execution may issue thereon. 38 Defendant may plead and rely on an equitable title as a defense. 39 Such bond may be in the following form : FORM OF BOND FOR PAYMENT OF RENT IN ACTION OF RIGHT. Know all men by these presents, that we, - , principal, and and , sureties, are held and firmly bound unto in the sum of - dollars, lawful money of the United States, well and truly to be paid to the said - , his heirs, executors and assigns. The condition of this obligation is such, that whereas, on the - day of - , 18 , in an action of right then pending in the district court of the State of Iowa, in and for - county, wherein W as plaintiff, and said -- was defendant, it was found by the verdict of a jury, and determined by the judgment of the court in said action, that the said plaintiff recover the premises in con- troversy therein; that the said defendant is in the actual possession of, and has crops sowed (or planted or growing) thereon, and that the value of said premises from the date of said verdict until the 1st day of January, 18 , is the sum of - dollars. Now, if the said shall and will pay to the said - on the 1st day of Janu- ary, 18 , the said sum of - dollars, so assessed, then this obliga- tion to be void, otherwise to remain in full force and virtue. Dated this - , 18. - , principal. I sureties. (Add justification and approval.) 859. Of practice. The trial may be to a jury, or by consent to the court, or a referee. When it appears that a defendant is only a tenant the landlord may be substi- 87 Phillips v. Blair, 38-649. 39 Adams County v. Graves, 75- ss Code, Sec. 4202. 642. 90 RECOVERY OF EEAL PEOPERTY. [ 859. tuted by serving an original notice on him, or by his volun- tary appearance, and the judgment will in such case be conclusive against him; 40 but the statute does not require such substitution. 41 It is not necessary, when the de- fendant makes defense, to prove him in possession of the premises. 42 A demurrer to the petition should be sustained when the action is by ordinary proceedings, when plaintiff does not claim to have the title; nor in such a case should the cause be transferred to the equity docket, no equitable re- lief being asked. 43 And a defendant in this action who holds a lien on the property can not foreclose it by way of counter claim. 44 This action against a person in pos- session can not be prejudiced by any alienation made by such person after the action is commenced. 45 The court, on motion, and after notice to the opposite party, may, for cause shown, grant an order allowing the party applying therefor to enter upon the land in contro- versy and survey the same for the purpose of the action; such order must describe the property, and a copy thereof must be served on the owner or person having the occu- pancy and control of the land. 46 Either party must fur- nish the adverse party with a copy of any unrecorded con- veyance, or furnish a satisfactory reason for not so doing within a reasonable time after demand therefor. No written evidence of title can be introduced on the trial unless it has been sufficiently referred to in the abstract, which may, on motion, be made more specific, and may be amended as other pleadings by the party setting it out. 47 When the plaintiff is entitled to damages for withhold- ing or using, or injuring his property, the defendant may set off the value of any permanent improvements made thereon, to the extent of the damages, unless he prefers to 40 Code, Sec. 4190; State v. Or- ** Kemerer v. Bournes, 53-172, wig, 34-112. 176. *i State v. Orwig, 34-112. Code, Sec. 4192; Jordan v. 42 Code, Sec. 4191. Ping, 32-64. Kitteringham v. Blair Town *e Code, Sees. 4193, 4194. Lot and Land Co., 66-280; see Page v Code, Sec. 4188. v. Cole, 6-153; Pendergast v. B. & M. R. R. Co., 53-326. 860. 861.] RECOVERY OF REAL PROPERTY. 91 avail himself of the law for the benefit of occupying claim- ants. 48 When an owner in possession of real property brings an action against adverse claimants to quiet his title, he will be entitled to the relief sought, if sustained by the proofs; under a general prayer for relief, if the petition embodies the essential averments of the statute, though it is mani- fest that it was not framed with special reference thereto. 49 An instrument which is the basis of title may be intro- duced in evidence by a party, before showing its connec- tion with the rest of his claim of title. In order to recover, title must be traced back to a common source, to the gov- ernment, or to one under whom both parties claim. In case title to real estate is in question, the fact that a party's only title is by an executory contract may be shown by parol, as a measure of directing the further in- vestigation of title. 50 The right of recovery is to be lim- ited to and determined by the pleadings. 51 860. Of the verdict, The verdict may specify the extent and quantity of the plaintiff's estate, and the prem- ises to which he is entitled, with reasonable certainty, by metes and bounds, and other sufficient descriptions, ac- cording to the facts proved, 52 and a general verdict in favor of the plaintiff without such specifications, entitles the plaintiff to the quantity of interest or estate in the premises as set forth and described in the petition. 53 In case of wanton aggression on the part of the defendant, the jury may award exemplary damages. 54 861. Of judgment. If the interest of the plaintiff expire before the time in which he could be put in posses- sion, he can obtain a judgment for damages only; 55 but the above provision does not apply to a case when, during action pending, the plaintiff conveys the land; in such Code, Sees. 4199, 2964; Par- 52 Code, Sec. 4195. sons v. Moses, 16-440. 53 Code, Sec. 4196. Paton v. Lancaster, 38-494. 54 Code, Sec. 4200. BO Davis v. Strohm, 17-421. 65 Code, Sec. 4197. 6i Pfotzer v. Mullany, 30-197. 92 RECOVERY OF REAL PROPERTY. [ 862. case it may continue to be prosecuted in bis name. But it does apply when the plairftiff holds a limited and de- terminable estate which expires pending the proceed- ings. 56 When it appears that the plaintiff is entitled to the im- mediate possession of the premises it seems judgment will be entered and an execution issued accordingly, 57 and plaintiff may have judgment for the rent or rental value, of the premises which accrues after judgment, and before delivery of possession, by motion, in the court in which the judgment was rendered, ten days' notice thereof in writing being given, unless judgment has been stayed by appeal, and bond given, in which case the motion may be made after the affirmance of the judgment 58 862. Of limitations, etc, No recovery can be had by the plaintiff for the use and occupation of the premises for more than five years prior to the commencement of the action. 59 A doweress can only recover damages for detainer of her dower from the proper party (as measured by use and profits at least) from the time of demand, pro- vided the time of such demand was not more than six years prior to the commencement of the suit, and she can only recover for the six years preceding the commence- ment of the suit in any event. 60 The limitation in this section has no aplication to the right of an occup3 T ing claimant to recover for improvements. 61 The plaintiff, where he holds the legal title and right of possession, may recover for the use and occupation of the land, as well as title and possession. 62 In an action against the ancestor where the heirs are made parties after his death, they are not liable for damages for rents and profits, while the an- cestor held possession, but only during the time they are in possession. 63 An action to recover for use and occupation of real property, must be brought within five years from the Be Jordan v. Ping, 32-64. so O'Farrell v. Simplot. 4-381. "Code, Sec. 4203; see Dunn v. i Parsons v. Moses, 16-440. Starkweather, 6-470. 62 Dunn v. Starkweather, 6-470. 6s Code, Sec. 4204. es Cavender v. Smith, 8-360. 69 Code, Sec. 4198. 8G3-S65.] EECOVERY OF EEAL PROPERTY. 93 time when the cause of action accrued. 64 If possession is relied on to bar an action of right, it must be uninter- rupted, and the length of time and possession relied on must be set forth in the answer. 65 863. Of tenants. A tenant in possession, in good faith, under a lease or license from another, is not liable beyond the rent in arrears at the time of suit brought, and that which may afterward accrue, during the con- tinuance of his possession. 66 864. Of notice in actions to quiet title. The notice in this action must accurately describe the prop- erty, and in general terms the nature and extent of plain- tiff's claims, and is to be served as in other cases. 67 Such notice may be served by publication and will cut off the rights of a non-resident. 68 It may be in the following form: FORM OF NOTICE IN ACTIONS TO QUIET TITLE. Title, ) Venue, j To : Sir: You are hereby notified that there is now (or state when there will be) on file in the clerk's office of the district court in and for said county, the petition of the plaintiff - , in which he states that he is the owner in fee simple of (here accurately describe the premises) and praying that the title thereto be quieted in him and that you be barred and forever estopped from having, or claim- ing, any right or title thereto adverse to the plaintiff. Now, unless you appear thereto and defend before noon of the second day of the (name of term) term, 18 , of said court, which will commence on the - - day of - , 18 , at the court house in - , Iowa, default will be entered against you, and a decree rendered thereon as prayed. , attorney for plaintiff. 865. Of the petition to quiet title. The petition in an action to quiet title must be under oath, and must set forth the nature and extent of the plaintiff's estate, and describe the premises as accurately as possible and e* Tibbetts v. Morris, 42-120; see v. Gardner, 25-102; Stanborough v. Muir v. Bozarth, 44-499. Cook, 83-705. cs Wright v. Keithler, 7-92; Gil- <" Code, Sec. 4224. lis v. Black, 6-439. es Knudson v. Litchfield, 87-111. eo Code, Sec. 4201; see Gardner 94 RECOVERY OF EEAL PROPERTY. [ 866. aver that he is credibly informed and believes that the de- fendant makes some claim adverse to the plaintiff, and pray for the establishment of plaintiff's estate against such adverse claims, and that the defendant be forever estopped from having or claiming any right or title to the premises adverse to plaintiff. 69 It may be in the following form: FORM OF PETITION TO QUIET TITLE. Title, Venue. The plaintiff states: Par. 1. That he is the absolute owner in fee simple of the fol- lowing described real estate, to wit: (Here describe the premises as accurately as possible.) Par. 2. That he is credibly informed and believes that the de- fendant makes some claim adverse to the estate of the plaintiff in said property. Par. 3. Wherefore, the plaintiff prays that his title and estate be established against the adverse claims of the defendant, and that said defendant and all persons claiming by or through him be barred and forever estopped from having or claiming any right or title ad- verse to the plaintiff in and to said premises, and that the title thereto be quieted in the plaintiff and that the defendant be adjudged to pay the costs of this proceeding. , attorney for plaintiff. (Add verification.) The plaintiff may unite in his petition a prayer to re- cover possession, and one that the cloud on his title be re- moved. 70 866. Of disclaimer and costs. The defendant may appear and disclaim all right and title adverse to the plaintiff, in which case he will recover his costs. In other cases costs will be taxed in the discretion of the court. If a party twenty days or more before bringing suit to quiet title to real estate, requests of the person holding an apparent adverse interest or right therein the execution of a quit claim deed thereto, and shall also tender to him one dollar and twenty-five cents to cover the expense of the execution and delivery of the deed, and he shall re- fuse and neglect to comply therewith, the filing of a dis- cs Code, Sec. 4224; Paton v. Lan- 70 Lees v. Wetmore, 58-170. caster, 38-494. 867. J RECOVERY OF REAL PROPERTY. 95 claimer of interest or right will not avoid costs in an action thereafter brought, and the court may in its dis- cretion, if the plaintiff succeeds, tax in addition to the ordinary costs of court, an attorney's fee for plaintiff's attorney not exceeding twenty-five dollars if there is but a single tract not exceeding forty acres in extent or a sin- gle lot in a city or town involved, and forty dollars if but a single tract exceeding forty acres and not more than eighty acres; in cases in which two or more tracts are included that may not be embraced in one description, or single tracts covering more than eighty acres, or two or more city or town lots, a reasonable fee may be taxed, not exceeding, proportionately, those above s a led. 71 867. Of new trials. In any of the causes men- tioned in this chapter 3 of Title 21 of the Code, the court, in its discretion, may grant a new trial on the application of any party thereto, or those claiming under a party, made at any time within one year after the former trial, although the grounds for a new trial in other cases are not shown; but only one such new trial shall be granted. 72 If the application for a new trial be made after the close of the term at which the judgment was rendered, the party obtaining a new trial must give the opposite party ten days' notice thereof before the term at which the ac- tion stands for trial. 73 The result of a new trial granted at a term subsequent to the one at which the first trial was had will not affect the rights of third parties, ac- quired in good faith, for a valuable consideration, since the former trial. 74 But a party who, on such new trial, shows himself en- titled to lands which have so passed to the purchaser in good faith, may recover the amount of damages against the other party in the same or a subsequent action. 75 The party who is successful in such new trial shall, if the case 71 Code, Sec. 4225, 4226; Deacon Butterfield v. Walsh, 25-263; The v. Central la. Inv. Co., 63 N. W., County, etc., v. The I. F. & S. C. R. 673. Co., 49-657. 72 Code, Sec. 4205; Newell v. San- 73 Code, Sec. 4206. ford, 10-396; White v. Poorman, 74 Code, Sec. 4207. 24-108; Floyd v. Hamilton, 10-552; 75 Code, Sec. 4207. 96 RECOVERY OF REAL PROPERTY. [ 80S. require it, have his writ of execution to restore him his property. 76 The statute does not seem to contemplate any notice to, or defense by, the opposite party as to the application for a new trial. 77 Greater latitude is given the courts with reference to new trials in this action than in any other. 78 A mistake by a third party in selecting a paper to be used as documentary evidence when not discovered in time to correct it before the conclusion of the trial, is good cause for a new trial in an action of right 79 The unsuccessful party in an action of right is entitled to the benefit of the provision of the statute relating to new trials in such cases, when the defense is equitable in its nature, as well as when it is legal, 80 nor will the fact that the petition, in addition to asking that plaintiff's ti- tle be quieted, prays for other equitable relief regarding the land, take the case out of the provisions of the law re- lating to granting new trials, in relation to quieting title; and a new trial in such a case will be granted for failure to make defense through mistake which is due to mis- information and not to neglect. 81 But it will not be granted to relieve a party from results of his own negli- gence. 82 The law does not contemplate a trial upon an application for a new trial. 83 868. Of appeals. An appeal may be taken from an order of the court granting a new trial, but such order will not be interfered w T ith unless it is shown that the dis- cretion vested in the court has been abused, or that great injustice has been done the appellant A stronger case must be made than would be required to justify the re- versal of an order refusing a new trial. 84 And an appeal lies from the final judgment in an action of right, that is, 76 Code, Sec. 4207. si The County, etc., v. The I. F. 77 The County, etc., v. The I. F. & S. C. R. Co., 49-657. & S. C. R. Co., 55-157. 82 Russell v. Nelson, 32-215. 78 White v. Poorman, 24-108; ss The County, etc., v. The I. F. Newell v. Sanford, 10-396. & S. C. R. Co., 49-657. 79 Floyd v. Hamilton, 10-552. s* Newell v. Sanford, 10-396. so Butterfield v. Walsh, 25-263. 869.] EECOVEEY OF EEAL PROPERTY. 97 from the judgment and decree adjudicating the rights of the parties as to title. 85 869. Of constructive notice, When any part of the real property which is the subject of the action is sit- uated in any other county than the one in which the action is brought, the plaintiff must, in order to affect third persons with constructive notice of the pendency of the action, file with the clerk of the district court of such county a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the property in the county affected thereby, who must at once index and enter a memorandum thereof in the incumbrance book, and from the time of such index- ing only will the pendency of the action be constructive notice to subsequent purchasers or incumbrancers there- of, who will be bound by all the proceedings taken after the filing of such notice to the same extent as if parties to the action; and within two months after the determina- tion of such action, there shall be filed with such clerk a certified copy of the final order, judgment or decree, and he must enter and index the same as if it had been ren- dered in his county, or the notice will cease to be con- structive notice. 86 ss McMurray v. Day, 70-671; see Code, See. 3544. Williams v. Wells, 62-747. Vol. II 7 CHAPTER LII. OF ACTIONS ON OFFICIAL SECURITIES AND FOR FINES AND FORFEITURES. Sec. 870. Of bonds of public officers. 871. When the action lies 872. May be several actions on the same security. 873. Extent of liability of sureties. 874. Of the petition. 875. Fines and forfeitures. 876. Of the petition in cases of forfeiture. 877. To what county fines belong. 878. Effect of paying part of a fine. 879. Of recovery of fine paid. Section 870. Of bonds of public officers. Our stat ute provides that the official bond of an officer is to be construed as security to the body politic or civil cor- poration of which he is an officer, and also to all the mem- bers thereof, severally, who are intended to be thereby secured. 1 871. When the action lies. The action will lie in favor of a land owner against a sheriff for money re- ceived by him from a railroad company on the condem- nation of the right of way, upon the expiration of the thirty days allowed for an appeal from such proceed- ings; but it is barred unless brought within three years after it accrues, and the bar of the statute operates in favor of both the sheriff and the sureties on his bond. 2 1 Code, Sec. 4336. Lins, 57-235; Wells v. Stomback, 2 Code, Sees. 3447, 4336; Lower v. 59-376, 378; Bank of Reinbeck v. Miller, 66-408; see Prescott v. Gou- Brown, 76-696; Walters-Gates v. ser, 34-175; State v. Henderson, 40- Wilkinson, 92-129; State v. Far- 242*; Keokuk County v. Howard, rell, 83-661; Eyerly v. Board, 77- 41-11; Wadsworth v. Gerhard, 55- 470; Hintrager v. Richter, 76-406; 367; Steel v. Bryant, 49-116; Moore Sac County v. Hobbs, 72-69. v. McKinley, 60-367; Dewey v. 98 872-874.] ACTIONS ON OFFICIAL SECURITIES, ETC. 99 It will lie against a sheriff and his sureties far tres- passes committed by him in attempting to perform his official duties, 3 and against a constable and sureties on his bond, where the constable acting in his official ca- pacity levies on and sells property exempt from execu- tion. 4 And against the sheriff when his deputy collects money on an execution and fails to pay it over to the par- ties entitled thereto. 5 872. May be several actions on the same secur- ity. A judgment in favor of a party for one delinquency does not preclude the same, or another party, from an action on the same security for another delinquency, ex- cept that sureties can be made liable in the aggregate only to the extent of their undertaking. 6 873. Extent of liability of sureties. Sureties on official bonds are liable only for acts done by the prin- cipal during the term for which the bond was given, nor are they responsible for the acts of the officer after his term has expired, although his successor may not have qualified. 7 874. Of the petition. The petition may be in the following form: FORM OF PETITION AGAINST SHERIFF FOR NEGLECTING TO PAY OVER MONEYS COLLECTED ON EXECUTION. Title, Venue :\ The plaintiff states: That at the times hereinafter mentioned the defendant was the sheriff of the county of , and State of Iowa. That on the day of , 18 , at , an execution was duly issued in form and effect as required by law against the property of one and in favor of the plaintiff upon a judgment for the sum dollars principal, and dollars costs, which had been duly recovered in favor of the plaintiff against said in district court of the county of , in this State, and said execution was, by the plaintiff, di- rected and delivered to the defendant as such sheriff. That the de- fendant thereafter as such sheriff collected and received upon said exe- s Charles v. Haskins, 11-329. Code, Sec. 4337; Charles v. * Strunk v. Ocheltree, 11-158. Haskins, 11-329. B Brayton v. Town, 12-346. i Wapello County v. Bigham, 10- 39. 100 ACTIONS ON OFFICIAL SECURITIES, ETC. [ 875, 876. cution for the use and benefit of plaintiff the sum of dollars, besides the costs and his lawful fees thereon. That more than seventy days had elapsed since the issuance and delivery of said execution to the defendant, before this action was commenced. That said defendant, in violation of his duty as said sheriff, has failed and neglected to pay over to the plaintiff the amount so col- lected or any part thereof, though often requested so to do, to the damage of this plaintiff, in sum of dollars, no part of which has been paid. Wherefore plaintiff demands judgment against said defendant for dollars, with interest thereon from the day of , 18 , and costs of this action. , attorney for plaintiff. (Add verification if desired.) 875. Fines and forfeitures. Fines and forfeit- ures not otherwise disposed of go into the treasury of the county where the same are collected for the benefit of the school fund, 8 and actions for their recovery may be prosecuted by the officers or persons to whom they by law belong in whole or in part, or by the public officers into whose bauds they are to be paid when collected. 9 A judgment for a penalty or forfeiture rendered by col- lusion, does not prevent another action for the same sub- ject-matter. 10 876. Of the petition in cases of forfeiture. The petition in an action to recover on a forfeited bond may be in the following form: FORM OF PETITION IN ACTION ON A FORFEITED BOND. Title, Venue. Your petitioner claims of the defendants, and , the sum of hundred dollars and for cause of such claim states: That heretofore, to wit: on the day of , 18 , the grand jury of the county of , in the State of Iowa, duly returned into court an indictment against one , charging him with the crime of (here insert the crime charged) which said indictment was duly and properly filed by the clerk of the district court of said county and State. That the judge of said court made an order on said indictment admitting the said to bail in the sum of hundred dollars. s Code, Sec. 4338; Const., Art. Code, Sec. 4339. 9, Sec. 4. 10 Code, Sec. 4340. 877, 878.] ACTIONS ON OFFICIAL SECURITIES, ETC. 101 That afterward, to wit, on the day of - , 18 , the de- fendants, and , made their certain bond, a copy of which bond is hereto attached and marked exhibit "A" and made a part hereof, conditioned that the said should appear and answer said indictment and abide the orders and judgments of the court, and not depart without leave of same, and if they failed to perform either of these conditions, they would pay to the State of Iowa, the sum of hundred dollars. That the said bond was on the day of , A. D. 18 , accepted and approved, and duly and properly filed in the office of the clerk of said district court. That at the term of said court for the year 18 , the said was duly ar- raigned on said indictment, and that on , 18 , the said plead guilty of the charge contained in said indictment, to wit (here insert crime charged) ; and that on the day of , 18 , the said was, by the judgment of the court then and there pro- nounced, sentenced to pay a fine of dollars and costs taxed at dollars. That at the term, 18 , of said district court, the said was called to surrender himself in execution of the judgment but failed to appear, when the court made a further order declaring the bond given by said defendants herein forfeited. That the said having failed to abide the judgment of the court by surrendering himself in execution thereof, as these defendants agreed he should do, the whole amount of said bond, to wit: dollars, became by the terms thereof due the plaintiff, and no part thereof has been paid. Wherefore plaintiff demands judgment against the defendants in the sum of dollars and costs. , county attorney, of county, Iowa. (Add verification.) 877. To what county fines belong, When a criminal case is taken on a change of venue to another county and fines which have been imposed are paid in to the clerk of the county where the case is finally dis- posed of, they are "collected" within the meaning of the law in that county and should be paid into its treasury. 11 878. Effect of paying part of a fine. If one is convicted of a crime, and fined, and in default of pay- ment of the same is committed to prison for a time fixed, he can not, after being imprisoned for a part of the time, pay a part of the fine, and have his term of imprisonment reduced pro tanto. 12 11 Pottawatamie County v. Car- ren County v. Polk County, 89-44. roll County, 67-456. See also War- 12 Galles v. Wilcox, 68-664. 102 ACTIONS ON OFFICIAL SECTJEITIES, ETC. [ 879. 879. Of recovery of fine paid. One who is ar- rested for the violation of a void ordinance, and pleads not guilty, but makes no objection to the ordinance, is found guilty and fined, and pays the same while under arrest, without protest, believing that the judgment against him is valid, does not pay under duress and can not recover back the money so paid. 13 is Bailey v. Paulina, 69-463; see Kraft v. City of Keokuk, 14-86; Espy v. Ft Madison, 14-226. CHAPTER LIII. OF ACTIONS AGAINST RAILWAY COMPANIES FOR DAMAGES CAUSED BY FIRE AND FOR INJURIES TO STOCK. Sec. 880. Of former statutes. 881. Of the liability under the present statute. 882. Of liability of company operating a road. 883. Of contributory negligence. 884. Of the evidence. 885. Of damages. 886. Of the petition. 887. Of liability of railway companies for killing stock, etc. 888. Same Of stock running "at large." 889. Same Of fencing at depot grounds and highways. 890. Same Of failing to repair fences. 891. Same Of double damages. 892. Of the affidavit and notice. 893. Of practice, evidence, etc. 894. Of speed of trains. Section 880. Of former statutes. Prior to the en- actment of the present law it was held that in actions to recover damages caused by fire set out by the engine of a railway company that it was incumbent on the plaintiff to show negligence of the defendant, and proof of the injury complained of was not sufficient to make out a prima facie case. 1 881. Of the liability under the present statute. The statute provides that any corporation operating a railway shall be liable for all damages by fire that is set out or caused by operating of said railway, and such damages may be recovered in the same manner as is pro- i Gandy v. C. & N. W. R. Co., C. & N. W. R. Co., 31-176; Kesee v. 30-420; McCummons v. C. & N. W. C. & N. W. R. Co., 30-78; McCor- R. Co., 33-187; Garrett v. C. & N. mick v. C., R. I. & P. R. Co., 41- W. R. Co., 36-121; see Jackson v. 193. 103 104 ACTIONS AGAINST EAILWAY COMPANIES. [ 882. vided by law in regard to injuries to stock, except as to double damages. Under this statute it is held that no absolute liability is created against the defendant, but the statute makes the fact of the injury prima facie evi- dence of the negligence of the defendant, which pre- sumption of negligence may be rebutted by evidence showing its freedom from such negligence. 2 And this same doctrine is recognized and approved in the latter cases. 3 Under this statute it was held that where the plaintiff in a reasonable attempt to save the property of another from destruction by fire set out by defendant's negligence received a personal injury that he might re- cover. 4 The question to be determined under the statute is, did defendant's engine set out the fire, if so, was the engine properly constructed and operated, and in good condition? and the duty of a railroad ^company to use the best devices available to prevent the escape of fire does not depend upon and is not fixed by the usage of other roads. 5 This statute does not invalidate a con- tract between a company and one given a license by it to erect a building on the right of way and which by its terms relieves the company from liability for an injury caused by its negligence. 6 882. Of liability of company operating a road. The liability imposed by statute is not confined to the company which owns the railroad by the operation of which the damage was caused; but a company which is operating a line of railway owned and also used by an- other company which permits combustible matter to ac- cumulate on its right of way, by reason of which fire from the engine of the company so operating the road 2 Small v. C., R. I. & P. R. Co., Co., 77-661; Rose v. C. & N. W. R. 50-338; Slossen v. B., C. R. & N. R. Co., 72-625; West v. C. & N. W. R. Co 51-295; Libby v. C., R. I. & P. Co., 77-654; Babcock v. Railway, R Co. 52-92; Code, Sec. 2056; Bab- 62-593. cock v C. & N. W. R. Co., 62-593; * Liming v. 111. Cent. R. Co., 81- Seska v. C., M. & St. P. R. Co., 77- 246. 137 5 Metzgar v. C., M. & St. P. R. s Leland v. C., M. & St. P. R. Co. Co., 76-387. (not reported), 23 N. W. Rep. page e Griswold v. 111. Cent. R. Co., 90- 390; Engle v. C., M. & St. P. R. 265. 883-4.] ACTIONS AGAINST EAILWAY COMPANIES. 105 originates on such right of way, is liable for the damages which result. 7 883. Of contributory negligence. Prior to the enactment of the present provision of the code, it was held that the plaintiff, by his negligence or want of care, might contribute to produce the injury complained of, and if he did so, he could not recover; but what acts of commission or omission on his part would amount to negligence was a question for the jury to determine. 8 Later, it was suggested that it might not be incumbent on the plaintiff to prove his freedom from negligence. 9 But it is now held that the negligence of plaintiff, which may have contributed to the result complained of, will not defeat his recovery. 10 884. Of the evidence. The fact of the fire being prima facie evidence of negligence, the plaintiff, it seems, need only prove the fact that it was set out by defend- ant's engine used in the operation of its road, and that he suffered damages thereby, their amount, that they have not been paid, also the corporate character of the defendant He need not prove negligence on part of the defendant even if he pleads it. 11 Nor need he prove that he did not contribute to produce the injury. 12 Having established the facts above stated the plaintiff has made his case, which entitles him to recover unless the negli- gence which the law thus infers is overcome by proof of due care and freedom from negligence on the part of the defendant. 13 That an engine caused several fires on the 7 Slossen v. B., C. R. & N. R. Co., 50-338; Code, Sec. 3639; Engle v. 60-215. C., M. & St. P. R. Co., 77-661; Rose s Kesee v. C. & N. W. R. Co., 30- v. C. & N. W. R. Co., 72-625. 78; Garrett v. C. & N. W. R. Co., 12 See references to preceding 36-121; and see Slossen v. B., C. N. section. & N. R. Co., 60-221; Engle v. C., M. is Small v. C., R. I. & P. R. Co., & St. P. R. Co., 77-661. 50-338; Slossen v. B., C. R. & N. R. 9 Ormond v. C. la. Ry. Co., 58- Co., 60-214; Babcock v. C. & N. W. 742. R. Co., 62-593; West v. C. & N. W. "West v. C. & N. W. R. Co., 77- R. Co., 77-654; Leland v. C., M. & 654; Engle v. C., M. & St. P. R. Co., St. P. R. Co., 23 N. W. Rep. page 77-661; see Rose v. C. & N. W. Co., 390; Engle v. C., M. & St. P. R. Co., 72-625; Seska v C., M. & St. P. R. 77-661; Greenfield v. C. & N. W. R. Co., 77-137. Co., 83-270. 11 Small v. C., R. I. & P. R. Co., 106 ACTIONS AGAINST RAILWAY COMPANIES. [ 884. same trip may be shown for the purpose of proving that it was out of repair, or negligently constructed, or negli- gently handled or operated. 14 But it can not be shown that other fires occurred along the right of way in the same vicinity shortly after the engines passed over the road and before the fire that destroyed the plaintiff's property. 16 After the defendant has introduced evi- dence showing its freedom from negligence plaintiff may rebut the same by evidence of a circumstantial character showing defendant's negligence. 16 As that the engine which set out the fire had set out other fires on the same trip, or that the fire caught in dry grass and weeds on the right of way, or other facts showing defendant's neg- ligence. 17 The fact that the right of way was procured from the owner of the land on which the damages com- plained of occurred, will not prevent a recovery if such damages could not properly have been taken into con- sideration in estimating the right of way damages. 18 And it has been held that a railroad company was liable for damages by fire communicated by its negligence to a building of a third person and from such building to plaintiff's buildings, regardless of the negligence of the owner of the intermediate structure. 19 In an action by a tenant to recover the value of a crop destroyed by fire set by the defendant's engine, it appeared that the plain- tiff did not pay cash rent for the premises, and it was held error not to permit him to be cross-examined as to whether he was to give a share of the crop as rent. 20 But one who is a trespasser can not maintain an action against a'railroad company for negligence in the destruc- tion of crops which he has raised, as such trespasser, on land to which he has no title and of which he was not i* Slossen v. B., C. R. & N. R. Co., i Babcock v. C. & N W R Co 60-215; Lanning v. C., B. & Q. R. 62-593. Co., 68-502; West v. C. & N. W. R. " Engle v. C., M. & St P R Co Co., 77-654; Johnson v. C. & N. 77-661. W. R. Co., 77-666. is Rodemacher v. C., M. & St. P. IB Babcock v. C. & N. W. R. Co., R. Co., 41-297. 62-593; Hudson v. C. & N. W. R. is Small v. C., R. I. & P. R Co Co., 59-581; Bell v. C., B. & Q. R. 55-582. Co., 64-325. 20 Ormond v. C. la. R. Co., 58-742. 885-6. ] ACTIONS AGAINST RAILWAY COMPANIES. 107 in possession, and which were on such land when burned, 21 but it would be otherwise as to a licensee, 22 and as to what is sufficient evidence of title. 23 885, Of damages. In this class of actions ordin- arily the damages recoverable will be the market value of the property burned or destroyed. But the measure of damages will depend somewhat on the character of the thing destroyed. Thus if an action be brought for dam- ages for burning meadow or pasture land, it is clear that plaintiff, if entitled to recover, may show what it would cost to restore the meadow or pasture to as good a condition as it was in before the fire, and such sum will be the measure of his damages. As to what evidence is proper in such cases. 24 And if growing timber, an orchard, or a grove is burned, the value of it to the farm on which it is situated may be recovered, and this may be established by showing the value of the farm with the grove as it was before the fire, and its value imme- diately after the fire, and doubtless it may be established in other ways. 25 886. Of the petition. It would seem that the petition will be good if it alleges the corporate capacity of defendant and the fact that it was at the time of the alleged injury running and operating a railroad over and across the plaintiff's farm, that while so operating its road its engine set fire to and burned the property of plaintiff, and the damage resulting therefrom, and that such damage is unpaid. It is not necessary to aver negligence on part of defendant nor the exercise of due care on part of plaintiff. 26 21 Murphy v. S., C. & P. R. Co., Co., 66-606; and see Hamilton v. 55-473; Lewis v. C., M. & St. P. R. D. M. & K. C. R. Co., 84-131. Co., 57-127; Comes v. C., M. & St. 25 Brooks v. C., M. & St. P. R. P. R. Co., 78-391. Co., 73-179; see Williamson v. Mil- 22 Metzgar v. C., M. & St. P. R. ler, 55-86; Leiber v. C., M. & St. P. Co., 76-387; Bullis v. C., M. & St. R - Co -> 84-97; Greenfield v. C. & P T? On 7fi-fiSO N - w - R - Co., 83-270; Rowe v. C. 2 f T/iVmon Tf> Jt, M W T? P & N. W. R. Co., 71 N. W., 409. v, LJ v ? r ?' ^ ^ ?" 2S Sma11 v " C - R ' L & P - R - Co " 77-666; Fish v. C., R. I. & P. R. Co., 50 . 341; Rose v c & N w R Co ] 72-625; Engle v. C., M. & St P. R. 2* Vermilyea v. C., M. & St. P. R. Co., 77-661. 108 ACTIONS AGAINST RAILWAY COMPANIES. [ 886. The petition may be in the following form: FORM OF PETITION FOR DAMAGES CAUSED BY FIRE SET BY AN ENGINE OF A RAILROAD COMPANY. Title, Venue. Plaintiff states: That at the time of the fire and damages herein- after mentioned he was and still is the owner and in possession of the following described premises (here describe the land) and that the same was meadow land well seeded and in good condition for raising grass, and that at the time hereinafter mentioned said land had a good crop of grass thereon. That on the day of , 18 , the defendant was and still is a corporation and railway company running and operating its rail- way (over, across and through the land above described) in county, Iowa, by the name and style in which it is sued herein. That at the time aforesaid and while so operating its railway as aforesaid, fire and sparks emitted and thrown from the locomotive en- gine run by defendant on its said railway set fire to the grass and weeds upon defendant's right of way, which spread to and burned and destroyed acres of the grass aforesaid and the roots thereof, being situated on (here describe the land) the property of plaintiff, to his damage in the sum of dollars, no part of which has been paid. Wherefore, etc. , attorney for plaintiff. It will be noticed that the above form does not con- tain any allegation that the fire occurred without the fault or negligence of plaintiff, and in view of the recent decisions of the supreme court, it is not believed such an allegation is necessary. If the action is for the burning of articles detached from the realty the petition can be changed accordingly. If it is sought in one action to recover for damages caused by the setting of several fires, each should be stated in a separate count of the petition. FORM OF A PETITION TO RECOVER FROM A RAILWAY COM- PANY FOR SETTING OUT FIRE CAUSING DAMAGE TO AN ORCHARD. Title, ) Venue. ) The plaintiff states: That the defendant is a corporation duly organized, and during all the times herein referred to was operating a line of railway through county, Iowa, from Clinton to Council Bluffs, Iowa. That the plaintiff is now, and for many years last past 887.] ACTIONS AGAINST RAILWAY COMPANIES. 109 has been the owner of a valuable farm of about 500 acres in (here insert description of land) county, Iowa, and was such owner and in possession of it on the day of , 18 , and defendant's line of railway passed through said farm. That upon said farm there existed a large apple orchard, producing annually a crop of great value. That on or about the day of , 18 , the defendant in operating its said railway through said farm carelessly and neg- ligently allowed fire to escape from one of its locomotive engines and set on fire, and injured and destroyed of the property of plaintiff about 1,000 matured apple trees to plaintiff's damage in the sum of about | . Plaintiff further stated that he is unable to state the number of the engine which set said fire, but avers that it was a freight engine which was going east at the time the fire was set, being about one o'clock P. M. of the day of , 18 . Plaintiff avers that the defendant negligently allowed said engine to get out of order and to remain out of repair and was guilty of neg- ligence in operating the same while in such condition. Plaintiff is un- able to state fully the defects of said engine, but avers that it was in such defective condition and so out of repair that while in motion it would throw out and drop large chunks and coals of fire along the road and in the adjacent fields. That by reason of said facts and without fault of this plaintiff his property was set on fire, damaged and destroyed by the negligent acts of the defendant in the sum of dollars, no part of which has been paid. Wherefore plaintiff demands judgment for the sum of dollars, with interest and cost of suit. , attorney for plaintiff. 887. Of liability of railway companies for killing stock, etc. FORM OF PETITION AGAINST RAILROAD COMPANY FOR STOCK KILLED WHEN ROAD IS NOT FENCED. Title, ) Venue, f Plaintiff states: That the defendant is a corporation owning and operating a railway in and through county, Iowa, by running its engine and cars thereon, and on the day of , 18 , while so engaged in running and operating its said railway, at a point on the said road in said county where the defendant had the right to fence the same, but had not done so, said defendant by its agents, servants and employes ran an engine (or its train of cars) against and upon a certain gray mare (then running at large), the property of the plaint- iff, and of the value of hundred dollars, whereby said mare was killed (or injured). That on the day of , 18 , (more than thirty days before suit is brought if double damages are claimed), plaintiff caused a written notice, accompanied with an affidavit of said killing of (or injury to) said mare to be served on , the station 110 ACTIONS AGAINST EAILWAY COMPANIES. [ 888. (or ticket) agent employed in the management of the business of the defendant at , in said county. Copies of said notice and affidavit are hereto annexed and made a part of this petition marked exhibits "A" and "B" respectively. That said defendant has neglected and re- fused to pay the value of (or damage caused to) said mare. Wherefore plaintiff demands judgment for hundred dollars (double the value of the mare) and costs. (Signature.) (Attach exhibits "A" and "B.") EXHIBIT "A." To the (name of railroad company) : You are hereby notified that on the day of , 18 , while an engine (or train of cars) was being run and operated by your agents, servants 34 - 128; State V " Harris - 38- * r 17 ' 242; Weir v. Allen, 47-482, and 20 Berry v. Berry, 31-415. cases cited 21 Funk v. Israel, 5-438; Smith v. 23 Finch v. Hollinger, 43-598; Montgomery, 5-370; Cooley v. Raster v. Pease, 42-488; Gray v. Davis, 34-128; Stanchfield v. Palm- Parker, 53-5j05; Richabaugh v. er 4 G. Gr., 23; Gilchrist v. Moore, Bada, 50-56; Peterson v. Espeset, 7-9; Smith v. McLean, 24-322; Red- 48-262; Gray v. Parker, 49-624; ding v. Page, 52-406; Oswego S. Co. Burrows v. Waddell, 52-195; Wads- v. Lendrum, 57-573; Robinson v. worth v. Wallinker, 41-395; West Keith, 25-321; Delaney v. Holcomb, v. St. John, 63-287; Baxter v. Ray, 26-94; Jones v. Clark, 37-586; Leek 62-336; Allen v. Wheeler, 54-628; v. Chesley, 67 N. W., 580; Ruiter v. Wells v. Chapman, 59-658. 3 897.] ACTIONS OF REPLEVIN. 121 recover back a horse which was traded on Sunday. 24 The action may lie against the sheriff for property held by him subject to an execution where no notice is served on him as provided by law, if the want of such notice is not pleaded in the answer. 25 The action will not lie to take property from the possession of an officer upon the mere allegation that the judgment has been satisfied. 26 Where an officer acting under a tax w r arrant for the collection of taxes erroneously assessed by a board having competent authority, seizes property, replevin will not lie therefor. 27 Nor will it lie against one who does not detain from the plaintiff the possession of the property. 28 Where the sheriff in levying on personal property under an execution simply made a list of the property and took a delivery bond from the execution defendant therefor, it was held such defendant could not maintain replevin against the officer for the property. 29 Ordinarily it will not lie to try the title to an office, and especially so if the holder of it is not a party to the action. 30 Nor can the interests of part- ners be determined in an action of replevin. 31 Nor will it lie at the instance of one joint owner of property when it can not be divided. 32 So it has been held not to lie for the recovery of property sold when it was claimed the consideration had failed. 33 897. Of place of bringing suit. The action must be brought in the county where the property, or some part of it, is situated, 34 or where the defendant resides. 35 It can not be brought in the county from which the property has been wrongfully removed, unless that be the defend- ant's residence. 36 And it has been held that where the ac- tion w r as begun in the county where the property was 24 Kelley v. Cosgrove, 83-229. cases cited; see Francis v. Young, 25 Warder v. Hoover, 51-491. 24-375. 26 Armel v. Lendrum, 47-535. 33 Gittings v. Carter, 49-338. 27Belbo v. Henderson, 21-66; 34 Code, Sec. 4163. Emerick v. Sloan, 18-139. 35 Hibbs v. Dunham, 54-559; Par- 28 Hove v. McHenry, 60-227. ker v. Norris, 56-295; Code, Sec. 26 Same as No. 28. 4168. *o Lufkin v. Preston, 52-235; see se Hibbs v. Dunham, 54-559; Par- 57-28. ker v. Norris, 56-295; Porter v. si Kuhn v. Newman, 49-424. Dalhoff, 59-459. 32 Read v. Middleton, 62-317, and 122 ACTIONS OF KEPLEVIN. [ 898. situated, but against a defendant residing in another county, a failure to secure the property under the writ, did not defeat the jurisdiction of the court to entertain the case to the end, and defendant was not entitled to have the case removed. 37 Plaintiff need not aver the place of detention of the property, and no issue can be raised on that question except by a motion to change the place of trial to the proper county. 38 898, Of the parties. The action should be brought by the party claiming possession of the prop- erty. 39 One partner can not maintain the action against the other. 40 The owner of personal property taken by an officer, under a writ of replevin in an action to which such owner w r as not a party, may bring an action and replevin the property. 41 And an assignee in bankruptcy may bring an action to recover property belonging to the bank- rupt's estate, when the right thereto does not depend on the bankrupt law; and if the assignee has such an in- terest that he could intervene, he can bring an indepen- dent action for the recovery of the property. 42 If a third person claims the property, or any of it, the plaintiff may amend his petition and bring him in as a co-defendant, or the defendant may obtain his substitution in the proper mode, or the claimant may himself intervene, by the process of intervention. 43 But the remedy by intervention is not exclusive, and an independent action may be main- tained by the third person claiming the property. 44 In case of intervention the judgment concludes all the par- ties. 45 Where one is substituted for the sheriff in an ac- 3T Laughlin v. Main, 63-580; see 4 Fort Dodge v. Moore, 37-388; 5i Cure v. Wilson, 25-205; Duffey Smith v. McLean, 24-322. v. Dale, 42-215; Hoover v. Rhoads, 6-505. 124 ACTIONS OF REPLEVIN. [900. a partial recovery the proper judgment can be entered for the property recovered, but such allegations of value do not limit the amount of defendant's recovery, in case he is successful, even though such allegations are not de- nied in the answer. 55 As to what may be shown as evi- dence of value. 56 P3. The facts constituting the plaintiff's right to the resent possession of the goods or property must be stated, and the extent of his interest therein, whether it be a full or qualified ownership. 57 If he is the absolute owner, a statement of that fact is sufficient. 58 If he claims a special property in the goods the facts upon which his right of possession rests must be pleaded. When owner- ship is put in issue. 59 4. It must also be stated that the property was neither taken on the order or judgment of a court against him, or against the property, but if it has been taken by either of these modes, then it must state the facts constituting an exemption from seizure under such process. 60 The facts constituting an exemption under this paragraph are such as would render the property exempt under section 4017 of the code. 61 Property in the custody of the law, under an order or judgment of, or writ from, any court, if the process under which it is held is legal, can not be re- plevied unless it is exempt from seizure. 62 When the property is claimed as exempt from seizure under the process, the facts must be stated, showing such exemp- tion; but in replevin for mechanic's tools, seized under execution and claimed as exempt, the petition need not state that the tools are those with which the plaintiff "habitually earns his living." 63 Under th code of 1851 it was held that in a petition in an action to recover prop- ss Code, Sec. 4163, Sub. 2; Chica- 12-47; Kingsbury v. Buchanan, 11- go and S. W. R. Co. v. Northwest- 387. ern U P Co 38-377 59 Mclntire v. Eastman, 76-455. WMlnkon v. Lewis, 78-620; " Code Sec 4163, Sub 4 ,,.,, oo C,AO 61 Armel v. Lendrum, 47-535. Miller v. James, 83-242. 62 Funck v. Israel, 5-438; Miller 57 Code, Sec. 4163, Sub. 3; Har- v . Bryan, 3-58; Smith v. Montgom- vey v. Pinkerton, 70 N. W., 192. 6 ry, 5-370; Cooley v. Davis, 34-128. ss Cassel v. Western Stage Co., es Perkins v. Wisner, 9-320. 900.] ACTIONS OF BEPLEVIN. 125 erty seized under execution, on the ground of its exemp- tion, that it w T as not necessary to allege that plaintiff was a resident of the State. 64 Property cannot be taken under a writ of replevin from an officer holding it under a writ properly issued in a criminal proceeding. 65 If the process under which the property is held is void, replevin may be maintained. 66 5. The petition must also allege that the property is wrongfully detained; the gist of the action is the wrong- ful detention of the property, and a failure to allege this fact is a fatal defect, and may be taken advantage of on demurrer, in arrest of judgment or on error. 6 ' 1 6. The facts constituting the alleged cause of the de- tention, according to the best belief of plaintiff, must also be alleged. 68 7. The amount of damages, if any, which affiant be- lieves the plaintiff ought to recover for the detention of the property must be stated. 69 8. A proper prayer for judgment. 70 The petition must be signed by the plaintiff or his attorney, and verified; and an affidavit signed "G. W. & B. H.," and sworn to by both plaintiffs, was held good. 71 If the writ is to issue or be served on Sunday, the petition must contain the addi- tional statement that the plaintiff believes he will lose his property unless process issues on that day. 72 The petition in an action of replevin may be in the following form: FORM OF PETITION IN REPLEVIN. Title, ) Venue, f The plaintiff for a cause of action against the defendant states: That he is the absolute and unqualified owner of a certain red cow, three 'years old, having a white star on her forehead, and being branded with the letter "S" on her right shoulder; that he acquired said ownership by purchase (or state that he has a special property 64 Newell v. Hayden, 8-140. 69 Code, Sec. 4163, Sub. 6. 65 Lemp v. Fullerton, 83-192. TO Williams v. Wilcox, 66-65. ee Morgan v. Zenor, 88-175. ?i Cure v. Wilson, 25-205; Duffey T Draper v. Ellis, 12-316; Hough- v. Dale, 42-215; Hoover v. Rhodes, taling v. Wells, 59-287, and cases 6-515; see Turner v. Younker, 76- cited. 258; see chapter on Verification. Code, Sec. 4163, Sub. 5; Nolan 12 Code, Sec. 4165. v. Jones, 53-387. 126 ACTIONS OP REPLEVIN. [ 901. in the cow, viz., that he is the bailee of said cow for a term of three months from the day of , 18 , she having been put in the possession and charge of plaintiff, to keep for said time, he to have the milk from said cow for furnishing her food and care, and that - is the general owner, or as the case may be) ; that the defendant wrong- fully detains possession of said cow from the plaintiff, at county, Iowa; that said cow is of the actual cash value of dollars; that said cow was neither taken on the order or judgment of a court against the plaintiff, nor under an execution or attachment against him, or against the property (if the property was taken on such process, it must be so stated, and the facts showing the exemption alleged); that the alleged cause of detention, according to the best belief of the plaintiff, is (here state the alleged ground of detention, viz., that she is held by the defendant as sheriff of county, Iowa, by virtue of an execution in his hands, issued out of the office of the clerk of the district court of county, Iowa, in a cause wherein was plaintiff, and was defendant, and wherein judgment was ren- dered against said defendant, which said execution was by said sheriff levied on said cow as the property of said , or as the case may be); that the plaintiff has sustained damages, by reason of the said wrongful detention, in the sum of dollars, no part of which has been paid. Wherefore plaintiff asks a writ of replevin for said property, and demands judgment for the said property (or for the possession thereof, as the case may be), or for the value thereof, if the same can not be found, and for his damages and costs. , attorney for plaintiff. (Add verification.) When the action is against a sheriff or constable hold- ing the property by virtue of an execution or attachment, the petition must allege the service of the notice required by the statute on the officer before suit was commenced, and in such a case the following should be inserted in the petition before the prayer: FORM OF ADDITIONAL ALLEGATIONS IN PETITION OF SERVICE OF NOTICE. "And plaintiff further avers that on the day of , 18 , (before suit was commenced) he served a written notice on said de- fendant that the cow described in this petition belonged to him, and demanded therein that said defendant release her and turn her over to this plaintiff, which he has failed and refused to do; a copy of said notice is hereto attached marked 'A' and made a part hereof." 901. Of the bond. Before a writ of replevin can issue the plaintiff must execute a bond to the defendant 901.] ACTIONS OF REPLEVIN. 127 with sureties to be approved by the clerk in a penalty of at least equal to twice the value of the property sought to be replevied, conditioned that he will appear at the next term of the court and prosecute his action to judgment, and return the property, if a return be awarded, and also pay all costs and damages that may be adjudged against him. This bond must be filed with the clerk of the court and is for the use of any person injured by the proceeding, and a judgment for money rendered against the plain- tiff must also go against the sureties on the bond. 1 Said bond may be in the following form: FORM OF REPLEVIN BOND. Know all men by these presents: That we , of the county of and State of Iowa, princi- pal, and and , of the county of and State of Iowa, sureties, are held and firmly bound unto , in the penal sum of dollars, lawful money of the United States, well and truly to be paid to the said , his heirs, executors and assigns. The con- dition of this obligation is such that whereas the said did, on the - - day of - , 18 , file his petition in the clerk's office, in the district court of the State of Iowa, in and for county, claiming of the said the present possession of (here describe the chattels as in the petition) and asking the issuance of a writ of re- plevin therefor. Now, if the said shall appear at the next term of said court and prosecute his said action to judgment, and return the property, if a return be awarded, and also pay all costs and dam- ages that may be adjudged against him in said action, then this obliga- tion to be void, otherwise to remain in full force and virtue. Dated the day of , 18. , principal. ' j- sureties. (Add justification.) The sureties in the bond by signing it covenant and agree that a judgment for money against the principal shall be rendered against them also. 2 When the property levied upon under execution was replevied in an action by the execution defendant, who was the general ow r ner, and sold to a bona fide purchaser, it was held that as to such purchaser the filing of the replevin bond operated i Code, Sec. 4167-4176. 2 Hershler v. Reynolds, 22-152. 128 ACTIONS OF REPLEVIN. [ 902. to release the property from the lien of the execution. 3 If the defendant has a lien upon the property he is entitled in an action on the bond to recover the value of his in- terest at the time the property was taken. 4 In some cases a tender or offer to deliver the property to the plaintiff may relieve the surety on the bond. 5 902. Of the writ of replevin. When the proper bond is filed the clerk must issue an order or writ of re- plevin directed to the sheriff, commanding him to take the property therein described and deliver it to the plaintiff. An original notice must be served on the defendant as re- quired by statute. 6 The writ above mentioned may be in the following form: FORM OF WRIT OF REPLEVIN. The State of Iowa. To the sheriff of county, greeting: Whereas, , plaintiff, on the day of , 18 , filed his petition in the clerk's office of the district court of the State of Iowa, in and for county, sworn to as required by law, against , defendant, claiming of him the following described personal property, to wit (here describe property as in plaintiff's petition), which the said plaintiff alleges is wrongfully detained from him by the said defendant, and the plaintiff having executed a bond to the defendant, with sureties approved by me as required by law, and filed the same in my office, you are, therefore, hereby commanded to take the said property above described and deliver the same without delay to the plaintiff, and of this writ make legal service and due return thereof to said court on or before the first day of the next term thereof, to be begun and holden at the court house in , in the county of , Iowa, on the day of , 18 . Witness , clerk of the district court, with the seal of said court hereunto affixed, this day of , 18 . [Seal.] , clerk, etc. When the petition shows that the property has been wrongfully removed into another county from the one in which the action was commenced, the writ may issue from the county from w r hence the property was wrongfully taken, and may be served in any county w r here the prop- s Gimble v. Ackley, 12-27. s Nimon v. Reed, 79-524. 4 McMeekin v. Worcester, 68 N. e Code, Sec. 4168. W., 680. 903. J ACTIONS OF REPLEVIN. 129 erty may be found, in the same manner, and with like effect, as in the county where suit is brought. 7 When any of the property is removed to another county after the commencement of the action, the officer to whom the writ is issued may follow the same and execute the writ in any county of the State where the property is found, and for the purpose of following the property duplicate writs may be issued, if necessary, and served as the original. 8 When the petition alleges that the property has been wrongfully removed out of the county before the commencement of the suit, the writ must set out this allegation, so as to show on its face the authority for its being executed in a county other than the one in which it was issued. 903. Of service of the writ. When the writ is placed in the sheriff's hands he should execute it at once by taking possession of the property described therein, if the property is found in the possession of the defendant or his agent, or of any other person who obtained possession thereof from the defendant, directly or indirectly, after the order was placed in the sheriff's hands; and for such purpose he may break open any dwelling house, or other inclosure, having first demanded entrance and exhibited his writ if demanded. 9 When the sheriff has obtained possession of the property, or any of it, he must forthwith deliver it to the plaintiff, unless a bond is given as here- after stated, and if instead of taking actual possession of the property the sheriff leaves it with the defendant, tak- ing his receipt therefor, the plaintiff acquires no posses- sion of the property, and may take a money judgment in case he recovers. 10 If it appears by affidavit that the property claimed has been disposed of or concealed, so that the writ can not be executed, the court or judge, upon verified petition, may compel the attendance of the defendant, or other person claiming or concealing the property, and examine him on oath as to the situation of 7 Code, Sec. 4168. 10 Code, Sec. 4172; Davis v. Bay- s Code, Sec. 4169. liss, 51-438. Code, Sec. 4170; Smith v. Eals, 81-235. Vol. IT-3 130 ACTIONS OF REPLEVIN. [ 904. the property, and punish a willful obstruction, hindrance or disobedience of the order of the court as in case of con- tempt 11 The judge in vacation may punish a willful disobedi- ence or hindrance of the execution of the writ, as well as any disobedience of any order made necessary by the proceedings to examine the defendant under oath. 12 The affidavit should state the facts showing the property has been disposed of, or concealed, and the defendant may be brought before the court as in cases of proceedings auxil- iary to execution. 13 The facts must be stated in writing; oral evidence is not proper. 14 The affidavit may be in the following form: FORM OF AFFIDAVIT OF CONCEALMENT. State of Iowa, County, f 88 ' being duly sworn, say: That on the day of 18 , I commenced an action in the district court of county, Iowa, against to recover the possession of- the following described personal property, to wit (here describe the property as in the petition). That the said has concealed (or disposed of) the property claimed (or some portion of it, as the case may be), so that the order of replevin in (or order of the court issued in said action, as the case may be) can not be executed (here state the facts showing the disposition of or concealment of the property). He therefore asks that sa'id may be brought before this court (or judge) to be dealt with according to law. (Add certificate of officer.) . The above affidavit must be made by some person know- ing the facts, and the statement in the affidavit of the facts, or of the circumstances tending to establish them, should be as full and accurate as the nature of the case permits. Where no order of replevin is asked, but the examination of the defendant is desired after a final judg- ment, the affidavit must be changed accordingly. 904. Of the delivery bond. At any time before the actual delivery of the property to the plaintiff, the 11 Code, Sec. 4171. 13 Code, Chapter 4, Title 19. 12 Code, Sec. 4171; State v. Mey- i* Code, Sec. 4466; State v. Mey- ers, 44-580. ers, 44-580. 904. ] ACTIONS OF REPLEVIN. 131 defendant may stay all proceedings under the writ of replevin, and retain the property in his own possession by executing a bond to the plaintiff, with sureties to be approved by the clerk, or sheriff, conditioned that he will appear in and defend the action, and deliver the property to the plaintiff, if he recover judgment therefor, in as good condition as it was when the action was commenced, and that he will also pay all costs and damages that may be adjudged against him, for the taking or detention of the property, which bond must be delivered to the officer who must return the property to the defendant, and the officer must return the bond with the writ to the clerk making reference to such bond in his return. 15 If the defendant gives a delivery bond for the property, and it perishes in his hands, plaintiff's measure of damages is the same as if the property had been preserved to abide the result of the action. 16 The bond may be in the following form: FORM OF DELIVERY BOND IN REPLEVIN. Know all men by these presents: That we , principal, and and , sureties, are held and firmly bound unto , his executors and assigns, in the penal sum of (the sum must be fixed by the clerk or sheriff accepting the bond in sufficient amount to cover the value of the property claimed, and all damages and costs) well and truly to be paid. The condition of this obligation is such: That whereas in an action in the district court of - - county, Iowa, wherein is plaintiff and is defendant, a writ of replevin has been issued, directing the sheriff of said county to take the personal property therein described, and deliver the same to said plaintiff. Now, if the said shall ap- pear and defend the said action, and deliver the said property to the plaintiff, if he recover judgment therefor, In as good condition as it was when said action was commenced, and will also pay all costs and damages that may be adjudged against him, for the taking (or the detention, as the case may be) of said property, then this obligation to be void, otherwise to remain in full force and virtue. Dated the day of , 18 . , principal. (Add justification.) 16 Code . Sec. 4172. le Hinkson v. Morrison, 47-167- Lillie v. McMillan, 52-463. 132 ACTIONS OF KEPLEVIN. [ 904. The bond must be approved by the officer accepting it, as follows: FORM OF APPROVAL OF ABOVE BOND. I hereby approve the within bond and the sureties therein, this day of , 18 , clerk (or sheriff). If the bond is executed in the presence of the clerk or sheriff, the approval should be in the following form: FORM OF APPROVAL OF ABOVE BOND. Executed in my presence, and I hereby approve the within bond and sureties therein, this day of , 18 . , clerk (or sheriff). And in using either form the approval must be indorsed on the bond. The officer accepting and approving the bond must require the sureties to justify as to their quali- fications to become bondsmen. When the property is so retained by the defendant, he must permit the sheriff and plaintiff to inspect the same, and if the plaintiff requests it, the sheriff must cause the property to be examined and appraised by two sworn appraisers, chosen by the parties to the action, and in case they cannot agree he must select a third, and an appraisement agreed to by two of them will be sufficient, and he must return their appraisement with the execution. 17 The following forms may be used : FORM OF NOTICE TO CHOOSE APPRAISERS. To (or to , his agent or attorney): You are hereby notified that by virtue of an order of replevin to me directed, issued out of the office of the clerk of the district court of county, Iowa, in an action therein pending, wherein - - is plaintiff and is defendant, and commanding me to take pos- session of (here describe the property as in the petition), I have taken possession of said property; and whereas, the said , defendant in said action, has given a delivery bond, and said property has been turned over to him, and whereas, said , plaintiff in said action, has requested me to have said property appraised, you are therefore required to choose an appraiser on your behalf (or on behalf of said defendant), to value said property according to law. Dated the day of - , 18. , sheriff, etc. IT Code, Sec. 4173. 905.] ACTIONS OF REPLEVIN. 133 FORM OF APPRAISEMENT. State of Iowa, ) _ County, f We, the undersigned appraisers, selected to value the property here- inafter described, which was taken by , sheriff of county, Iowa, by virtue of an order of replevin issued out of the clerk's office of the district court in favor of , against certain personal prop- erty below described, in the possession (or under the control of) , defendant in said action, do hereby report that we have valued said property according to its fair value at this time, and that the schedule hereto annexed contains a correct inventory of said property, and that the values therein affixed to each article respectively are the fair values thereof, viz.: schedule of property appraised (here give a description of each article of personal property with the value set opposite thereof). Signed this day of , 18. ' t appraisers. The appraisement must be sworn to as follows: FORM OF OATH TO APPRAISEMENT. State of Iowa, ) County, f s We (names of appraisers) being duly sworn, depose and say that the foregoing is a just and true appraisement of the property in the above schedule described at this time, ao we believe. ' [ appraisers. (Add certificate of officer.) 905. Of the sheriff's return. The sheriff must re- turn the writ of replevin on or before the first day of the trial term of court, with a statement of his doings under it, which should be indorsed on the back of the writ, or, if on a separate paper, should be attached thereto, and this return must particularly describe any property taken under the order. 18 The taking of a receipt of the defend- ant for the property is not authorized by statute and does not constitute a levy; actual possession of the property must be taken. 19 The form of return may be as follows: is Code, Sees. 4172, 4174. is Davis v. Bayliss, 51-438. 134 ACTIONS OF BEPLEVIN. 906. FORM OF RETURN OF WRIT OF REPLEVIN. State of Iowa, 1 I BQ v SS. County I, , sheriff of said county, hereby certify and return: That the within writ of replevin came into my hands for service, on the day of , 18 . That on the same day (or if on another day, state the fact) by virtue thereof I took the following described personal property found in the possession of the defendant at said county, to wit (here give a particular description of the property taken). And I forthwith delivered the same to the plaintiff herein, (or if a delivery bond is taken, the return should recite that fact, the approval of the bond and the return of the property to the possession of the defendant). And I now return this writ executed. Dated this day of , 18 . , sheriff, etc. Fees, | . The writ and bond, if one is taken, must be returned to the clerk and by him filed and preserved. 906. Of pleading, practice, evidence, etc. The defendant may plead and prove any defense, legal or equitable, which goes to defeat the plaintiff's right of re- covery, but defenses not raised by the pleadings are not available on appeal. 20 The question is, in whom was the right of possession at the time the suit was instituted. Plaintiff having alleged it to be in him, it is not necessary for defendant to plead property in himself, or that he is entitled to the possession. 21 And generally it may be said that whatever tends to disprove plaintiff's right to recover, may be given in evidence under a denial of that right; but if it is sought to attack plaintiff's right of pos- session for fraud, it must be specially pleaded. 22 If pos- session only is claimed, plaintiff may maintain the action by proving general ownership, or special property in the goods. 23 In an action of replevin against an officer who has levied on property under an execution against a third 20 Code, Sec. 3566; Jansen v. Ef- 23 Cassel v. Western Stage Co., fey, 10-227; Palmer v. Palmer, 90- 12-47; Corbitt v. Heisey, 15-296; 17; Chapin v. Garretson, 85-377. Jansen v. Effey, 10-227; Water- si Hunt v. Burnett, 4 G. Gr., 512; house v. Black, 87-317; Smith v. Campbell v. Williams, 39-646. Eals, 81-235; Hibbard v. Zenor, 82- 22 Gray v. Earl, 13-188; Jansen v. 505; Harvey v. Pinkerton, 70 N. Effey, 10-227; Parsons v. Hedges, W., 192. 15-119. 906.] ACTIONS OF REPLEVIN. 135 person, the defendant may plead that since the com- mencement of the action a landlord's lien has been estab- lished against it and the property taken from him to sat- isfy such lien, and this though plaintiff was not a party to the landlord's attachment. 24 A farmer engaged in raising, handling and selling horses and acquainted with their value, may testify as to the value of a race horse. 25 When the defendant relies on legal process to justify him in taking the property, he must plead the writ or process under which he acted. 26 An officer in defending an action in replevin may jus- tify under writs still in his hands, and not yet returned, and such defense will not be affected by a failure to re- cover judgment in the action in which such writs is- sued. 27 When the order of replevin is quashed for defects in the affidavit or order, it does not affect the action, but only abates the order, and when defendant has demurred or answered, he can not afterward move to quash the order. 28 For instructions in case of replevin, reference is made to the case of McCoy v. Cadle, 4 Iowa, 557. In an action of replevin for property seized by virtue of a writ of attachment, but claimed to be exempt from such seiz- ure, the objection can not be made that it takes issue upon the facts stated as grounds for an attachment. 29 The residence of plaintiff, when material, may be proved without being pleaded, but if plaintiff is a non-resident of the State, and hence not entitled to the property in question as exempt, such defense should be specially pleaded. 30 If the petition alleges the right of possession as in plaintiff, an answer which does not specifically deny that fact, but states facts sufficient to defeat plaintiff's recovery, is good. 31 When the action is against a sheriff or constable, and the want of service of notice of owner- si Neeb v. McMillan, 68 N. W., 27 Kingsbury v. Buchanan, 11- 438. 387. 25 Leek v. Chesley, 67 N. W., 580. 28 Beard v. Smith, 9-50. 26 Kingsbury v. Buchanan, 11- 29 Mumma v. McKee, 10-107. 387; Gray v. Earl, 13-188; Parsons ao Newell v. Hay den, 8-140. v. Hedges, 15-119. ai Skinner v. C., R. I. & P. R. Co., 12-191. 136 ACTIONS OF BEPLEVIX. [ ^'06 ship is not pleaded, and defendant proceeds to trial on the question of ownership of the property, plaintiff will, on proper proof, receive the property, but may be ad- judged to pay the costs. 32 A surety in a replevin bond can not, in an action of replevin instituted by his princi- pal before a justice of the peace, prosecute an appeal in his own name, and have the issue between his principal and the defendant retried in the district court. 33 Quash- ing the writ will not cause the suit to abate, and in a proceeding to quash the writ on the ground of fraud in procuring jurisdiction of the property, such process should not be set aside, unless the evidence is clear and satisfactory. 34 It is held to be error to render judgment against plaintiff for a mere failure to produce the writ after it has served its purpose, and the property has been seized under it. 35 Demand of possession before commenc- ing the action need only be made when it is necessary to terminate the right of possession in defendant and confer it on plaintiff; that is, where the possession of defendant was in its inception rightful, a demand must be made. 36 But where both parties claim title to the property and the right of possession incident thereto, no demand need be made. 37 Nor need it be where the original taking is wrongful or illegal. 38 If property is sold on trial and notes are given for the purchase money, no part of which has been paid, in an action of replevin to recover the prop- erty a demand is not necessary. 39 Where the judgment in a replevin suit simply determines the right of possession, the title may afterward be determined in an action on the bond. 40 Where one sought to recover possession of prop- erty held by a sheriff, but failed to allege service of notice 32 Warder v. Hoover, 51-491. ST Smith v. McLean, 24-322; Leek 33 Crites v. Littleton, 23-205. v. Chesley, 67 N. W., 580. . s* Minott v. Vineyard, 11-90; ss Stanchfield v. Palmer, 4 G. Gr., Goodon v. Bucknell, 38-438, and 23; Robinson v. Keith, 25-321; De- cases cited. lancey v. Holcomb, 26-94. 35 Saubman v. Greatrakes, 34- 39 p e ck v. Bonebright, 75-98. 598; see Beard v. Smith, 9-50. Harmon v. Goodrich, 1 G. Gr., se Gilchrist v. Moore, 7-9; Smith 13; Buck v. Rhodes, 11-348; Haw- v. McLean, 24-322; Ruiter v. Plate, ley v. Warner, 12-42; Hall v. 77-17; Leek v. Chesley, 67 N. W., Smith, 10-45. 580. 007.] ACTIONS OF KEPLEVIN. 137 of ownership, and upon demurrer being interposed upon that ground, the court allowed him to dismiss his action on payment of costs, and on payment to the sheriff of the amount of the judgment for which the property was seized, to retain possession of it, it was held not to be error. 41 In an action of replevin, when the defendant retains the property it is not necessary, in order to recover a judgment for the value of the property, for the plaintiff to show the value of each article; it is sufficient in such a case to show the aggregate value of the property wrong- fully detained. 42 A failure to prove that the property sought to be replevied is detained in the county where suit is brought, will not defeat the action when suit is brought in the county where the defendant resides. 43 907. Of the verdict. When by the verdict there will be a judgment for the recovery or the return of the property, the jury must assess the value of the property, and also damages, for the taking or detention, and, when required to do so by either party, they must fix the value of each article of property and find which is entitled to possession, designating his right therein and the value of such right. 44 And if they fail to do so when re- quired, they may be sent back to amend their verdict. 45 But when the ownership and right of possession of the property is in question, being put in issue on the allega- tions of plaintiff's petition, the defendant setting up no special property in himself, a verdict for plaintiff, which assessed the value of the property and the damages for wrongful detention only, was held sufficient in form. 46 And where property taken in execution was taken from the sheriff by replevin and the plaintiff in said action failed to prosecute the same successfully, the measure of the defendant's damages is the balance due him as 41 Reisner v. Currier, 58-213. Reel. 75-304; Peck v. Bonebright, 42 Goldsmith v. Willson, 67-662. 75-98. 43 Same as No. 42. 45 Reed v. Thayer, 9 Ind., 157. 4* Code, Sec. 4175; see Van Horn 46 Cassel v. Western Stage Co., v. Overman, 75-421: Neeb v. Me- 12-47. Millan, 68 N. W., 438; Coleman v. 138 ACTIOXS OF REPLEVIN. [ 908. execution plaintiff, with interest and costs. 47 So, where the petition alleged the value of the property, and that plaintiff was the absolute owner and the possession was taken under the writ from defendant and delivered to plaintiff, a verdict in the words "we, the jury, find for the plaintiff," was held good. 48 But where an action of re- plevin was tried to the court and judgment found for plaintiff, it was held the defendant could not have been prejudiced by the failure of the court to assess the value of each article of property. 49 908. Of the judgment, etc. Certain requisites of the judgment herein treated of apply to the verdict. The judgment must determine which party is entitled to the possession of the property, and must designate his rights therein, as absolute owner or otherwise, and if the party in whose favor judgment is given has not the possession of the property, the judgment must also determine the value of his right therein, which right is absolute as to an adverse party having no right in said property, and the judgment must also include such amount as damages as the party may be entitled to for the illegal detention of the property. If judgment be against the plaintiff for the money value of the property, it shall also be against the sureties on the bond. 50 In an action of replevin the court can not render judgment in favor of defendant for the value of goods included in plaintiff's claim which were not taken under the writ. In such action a judg- ment in favor of several defendants jointly for the value of the goods was erroneous where one of them claimed no interest therein. And a judgment for the value of the goods in favor of a defendant who claimed them under a mortgage but introduced no evidence to show any in- terest in the property was erroneous. 51 And whenj)_laint- iff.4isniisses his action before an answer is filed, the de- fendant is entitled to have judgment for his interest in the property replevied, but if he files answer, notwith- Hayden v. Anderson, 17-158. oo Code, Sec. 4176. Newlin v. Reed, 30-496. si Jandt v. Potthast, 71 N W 49 Williams v. Wilcox, 66-65. 216. 908.] ACTIONS OF EEPLEVIN. 139 standing the dismissal, claiming other and further relief, plaintiff should be allowed to plead thereto and introduce evidence upon such issue. 52 In rendering the judgment on a verdict in favor of the defendant, interest may be allowed him on the value of the property from the time it was wrongfully taken. 53 The defendant in replevin may, after the action has been dismissed by plaintiff, have an alternative judgment for the return of the prop- erty, or the amount of his damages against both principal and sureties on the bond. 54 Generally the judgment in replevin, when plaintiff fails to maintain his action, should be for a return^of the property. 55 The entire legal rights of the parties to the suit in the property in contro- versy should be adjudicated in the main action, and such adjudication is conclusive and final. 56 And in such ac- tion, when it is adjudicated that the property replevied was subject to a judgment, which plaintiff was compelled to pay, his remedy is not by an action for a wrongful con- version against the sheriff who levied on the property under the judgment. 57 The defendant can only recover the value of his right in the property, and it can not ex- ceed the amount of the claim for which he held the prop- erty when taken from him. 58 If a party holds the prop- erty for a lien thereon he is entitled in an action for a recovery of the property by the owner to a judgment for its possession, and in default thereof a money judgment for the amount of his lien. 59 When the property for which a bond has been given by defendant is not forth- coming to answer the judgment, and a party entitled thereto elects to take a money judgment for the value thereof, such a judgment may be entered against the principal and sureties on the bond. 60 A money judg- ment, taken as heretofore stated, and in lieu of property 52 Crist v. Francis, 50-257; see sen v. Bffey, 10-227; Mason v. Funk v. Israel, 5-438; Jansen v. Richards, 12-73. Effey, 10-227; Marshall v. Bunker, B Hayden v. Anderson, 17-158. 40-121. 67 Finch v. Hollinger, 46-216. 53 Heard v. Gallagher, 14-394. 58 McNorton v. Akers, 24-369; *Wilkens v. Treynor, 14-391; Morris v. Burley, 74-45. Clark v. Warner, 32-219. sa Kundson v. Geison, 38-234. 55 Chadwick v. Miller, 6-38; Jan- o Code, Sec. 4179. 140 ACTIONS OF REPLEVIN. [ 908. exempt from execution, will also be to the same extent exempt from execution and from all set-off or diminution, either by the adverse party or by any other person, and such exemption may, at the option of the party entitled thereto, be stated in the judgment. 61 Where the defend- ant who is not the general owner of the property, recovers judgment for the possession based on the special prop- erty therein, the judgment should not be for the value of the property, but only for the value of his interest there- in; and in an action on the bond, or on the assessment of damages in the principal action, where plaintiff has failed to prosecute his suit, and a return of the property is ordered, plaintiff in the replevin suit may show that the other party is not the owner of the property, for the purpose of determining the measure of damages. 62 Where grain was taken on a writ of replevin, and threshed and sold, by the plaintiff, and on the trial the ownership was found to be in the defendant, the measure of his recovery on plaintiff's bond was held to be the market value of grain at the time of trial, less the cost of threshing and marketing, it not appearing that plaintiff had acted in bad faith in obtaining the writ, 63 The bona fide pur- chaser of property (after the replevin bond is given) held under execution, takes the property discharged of the lien; 64 whether the successful party must elect at the time judgment is entered as to whether he will take the property or its value, or may do so when execution issues, seems to be in doubt; but where judgment was entered that plaintiff have immediate possession of the property, and in default thereof recover its value, it was held that the judgment amounted to an election to take the prop- erty, and it should have been accepted when tendered and the judgment satisfied. 65 Where plaintiff neglected to ask for a judgment for possession of the property, but si Code, Sec. 4181; Harrier v. es Clement v. Duffy, 54-632." ' Fassett, 56-264. * Gimble v. Ackley, 12-27. 62 Havely v. Warner, 12-42; Buck s Oskaloosa S. E. Works v. Nel- v. Rhoads, 11-348; Hayden v. An- son, 54-519; see Williams v. Chap- derson, 17-158; see Ormsby v. man, 60-57. Nolan, 69-130. 8 908.1 ACTIONS OF EEPLEVIX. O J asked for a money judgment for its value, and the prop- erty was in plaintiff's possession, under the order of re- plevin, and the court upon the merits rendered judgment that plaintiff have and recover possession, and no objec- tion was raised in the petition or judgment, such objec- tion can not be raised in the supreme court. 66 Where mortgaged chattels were levied on under execution against the mortgagor, and the mortgagee replevied them, and judgment was rendered for the defendant (the officer who made the levy), the plaintiff can not complain that the judgment should have been for the return of the property, or in default thereof for the amount due on the execution, so long as he can discharge the same by a return of the property. 67 If the plaintiff in an action against an officer has obtained possession of property levied on, and dismisses his action before issue is joined, and the property is allowed to remain in the plaintiff's hands, a mortgage executed by him on it, during said time, will be superior to the claim of the officer under a writ of restitution, or a subsequent levy, the plaintiff be- ing in fact the real owner. 68 The statute provides two distinct remedies; first, the delivery of the property to the plaintiff; and, second, when it can not be delivered, the rendition of a judgment in his favor for its value. 69 Where the jury found generally for the defendant for a certain sum, but did not award him the possession of the property, it will not be presumed that he was found en- titled to its possession. 70 If, after the property is seized, it is determined in some other forum that plaintiff is not the owner of it, the defendant is not entitled to judgment by default for its value, and the plaintiff may introduce evidence as to such value. 71 When the judgment was for a return of the property and in default thereof the plaintiff recover of defendant a certain sum as its value, it was held that the defendant could elect to tender the property within a reasonable time, and if he did so, 66 Williams v. Wilcox, 66-65. 69 Laughlin v. Main, 63-580. T Ormsby v. Nolan. 69-130. TO Hunt v. Bennett, 4 G. Gr., 512. s Case v. Woleben, 52-389. TI Dehr v. Lampton, 31-172. 142 ACTIONS OF REPLEVIN. [ 908. plaintiff might be enjoined from enforcing his money judgment. 72 And where, by the act of the parties, the property is restored to defendant before judgment is ren- dered in his favor, he can only recover damages for its un- lawful detention. 73 When the action is to recover prop- erty seized under an execution, and it is determined that the execution is void, plaintiff is entitled to judgment for the return of the property. 74 If the plaintiff fails to pros- ecute his suit, defendant will be entitled to recover such damages as he may prove himself entitled to, either in the action of replevin or in an action on the bond, nor can an action of replevin be so dismissed as to deprive defend- ant of his right to have damages assessed and a return of the property awarded unless he consents thereto. 75 When the property, though exempt from execution, is voluntarily sold, a money judgment for its purchase price is not exempt. 76 If the judgment in a replevin suit de- termines the title to the property, it can not be questioned in an action on the bond, but it is otherwise where the right to possession only is settled. 77 While the judg- ment, if in favor of defendant, should direct a return of the property, yet the surety on the bond will be bound, though the judgment against the principal be for the value of it only. 78 And the judgment on the replevin bond is at least prima facie evidence of the measure of damages, in an action against the obligor on a bond of indemnity, given to secure a surety on the replevin bond; and if it appears that he has paid the whole amount of such indebtedness it will establish his claim unless it be rebutted. 79 And in an action on a replevin bond, for fail- ing to return the property, the record in the replevin suit is admissible in evidence. 80 The liability of sureties on a replevin bond under particular facts and circumstances 72 McClelland v. Marshall, 19-561. 13; Buck v. Rhodes, 11-348; Haw- 78 Harrow v. Ryan, 31-156. ley v. Warner, 12-42. 74 Balm v. Nunn, 63-641. ? Mason v. Richards, 12-73. 75 Hall v. Smith, 10-45. T Lyon v. Northrup, 17-314, and 76 Harrier v. Fassett, 56-264, and cases cited. cases cited. so McGinnls v. Hart, 6-204. 77 Harman v. Goodrich, 1 G. Gr. f 909.] ACTIONS OF REPLEVIN. 143 is further discussed in the cases cited. 81 In an action against a sheriff to recover property illegally seized, plaintiff will not be permitted to show, by way of dam- ages, that he was compelled in order to obtain his writ to deposit with his surety a bond to indemnify him. 82 Plaintiff is not limited in recovering damages for deten- tion of the property to cases where he takes judgment for its possession, but may recover such damages when he elects to, and does take judgment for its value. 83 If the defendant has a lien on the property the value of his lien must be determined and he should recover costs if he has the right of possession. 84 The holder of a first mortgage on personal property, which has been sold by a second mortgagee, the purchaser being in possession, can not in replevin against the two refuse to take the property under his writ and recover judgment for its value against the second mortgagee who has parted with his interest and possession. 85 In a replevin action it was held that the fact that pending such suit defendant sought and failed to establish a mechanic's lien on a building cover- ing the property sought to be replevied, did not bar his right to judgment. 86 909, Of the execution. If the party found entitled to the property is not already in possession of it by de- livery under the writ or replevin or otherwise, he may at his option have execution for the specific delivery of the property, or for the value thereof, as determined by the jury, and if any article of the property can not be ob- tained on execution, he may take the remainder with the value of the missing articles. 87 Defendant is entitled to a money judgment at his option when he is found en- si McNorton v. Akers, 24-369; s< Harvey v. Pinkerton, 70 N. W., Hershler v. Reynolds, 22-152; Jan- 192. sen v. Effey, 10-227; Kurd v. Gal- ss Nichols v. Sheldon Bk., 67 N. lager, 14-394; Struman v. Robb, W., 582. 37-311; Edwards v. Cottrell, 43-194. 86 McMeekin v. Worcester, 68 N. 82 Wilson v. Hillhouse, 14-199. W., 680. ss Cook v. Hamilton, 67-394; 7 Code, Sec. 4178; see Oskaloosa Hartley State Bk. v. McCorkell, 91- S. E. Works v. Nelson, 54-519. 660; Turner v. Younker, 76-258; Mclntire v. Easlinan, 76-455. 144 ACTIONS OF EEPLEVIN. [ 909. titled to the possession of the property, and is not already in possession of it. 88 But this election is only intended to apply to cases in which the court has jurisdiction to try and determine the merits of the controversy, and not to a case where the plaintiff is defeated for lack of juris- diction of the court trying the case. 89 The execution must require the sheriff to deliver the possession of the property, particularly describing it, to the party entitled thereto, if he is not already in possession of it, and may at the same time require the sheriff to satisfy any costs, damages, or rents and profits, with interest, recovered by the same judgment, out of the property of the party against whom it was rendered, subject to execution, and the value of the property for which judgment was re- covered should be specified therein, if a delivery thereof can not be had, and must, in that respect, be deemed an execution against property. 90 The execution may be in the following form : FORM OF EXECUTION IN REPLEVIN. The State of Iowa. To the sheriff of county, greeting: Whereas, on the day of , 18 , by the judgment of the district court of county, Iowa, recovered against - the possession of the following described personal property, to wit: (here describe each article of property, affixing the value thereto as found by the jury or the court), together with (state other sums re- covered as damages, costs, etc.) in a certain action then pending in said court, wherein - - was plaintiff and - - was defendant, which judgment remains in force and unsatisfied. You are therefore commanded that you cause the said above described property forth- with to be delivered to the said , and that you cause to be made of the goods and chattels, lands and tenements of the said , sub- ject to execution in your county, the sum of dollars damages, and dollars costs of said action, together with all legal costs that may accrue by virtue of this writ, with legal interest, and also in case a delivery of said property, or any part thereof, can not be had, that you further cause to be made of the goods and chattels, lands and tenements of said , subject to execution, the sum of the value of said property as above specified with legal interest thereon from the day of , 18 , (date of the judgment) and have said money in our said court in seventy days from the date hereof, to 88 Clark v. Warner, 32-219. so Code, Sec. 4177. sa Williams v. Chapman, 60-57. g 910, 911.] ACTIONS OF REPLEVIN. 145 render the same unto the said , and have you then and there this writ with your doings thereon. Witness - , clerk of said court, with the seal thereof hereto affixed, this day of , 18 . [Seal.] , clerk, etc. If the officer levies on the property of a third person the act is a tort, and the writ affords no protection; he is liable to the true owner in trespass for the value of the goods. 91 Or replevin may be brought without making a demand for the property. 92 910. Of proceedings when property has been concealed. When it appears by the return of the officer, or by the affidavit of the plaintiff, that any specific prop- erty which has been adjudged to belong to one party, has been concealed or removed by the other party, the court or judge may require such party to attend and be ex- amined on oath, respecting such matter, and may enforce its order in this respect as in cases of contempt. 93 911. Of detinue. This action is substantially the same as replevin, differing only in the following respects, viz.: In an action of detinue the petition asks the de- livery of the property claimed after judgment. No bond is required, and no writ asked for or 'issued when the action is begun, and if the plaintiff fails in his action he is liable only for a judgment for costs. It af- fords persons Who are unable to give a bond an oppor- tunity to recover possession of personal property. The action lies whenever the action of replevin will lie, and it is in substance the same under the code as it was at com- mon law, except as to the enforcement of the judgment. The form of petition used in replevin may be used in this action except the prayer. The form of prayer should be as follows: FORM OF PRAYER TO PETITION IN DETINUE. Wherefore plaintiff demands judgment for said property to be de- livered to him, or for the value thereof if the same can not be found, and for damages and costs. si Shea v. Watkins, 12-605. ss Code, Sec. 4180; see chapter on 92 Shea v. Watkins, 12-605. Contempts. Vol. iiio CHAPTER LV. OF ARBITRATION. Sec. 912. What may be submitted. 913. Of the submission. 914. Of the powers of the arbitrators. 915. Of the award. 916. Of proceedings on an award in court. 917. Of bonds to abide the award. 918. Of common law submissions and awards. 919. Of the action on the award or bond. Section 912. What may be submitted. All contro- versies which might be the subject of civil action, may be submitted to the decision of one or more arbitrators, in the manner provided by our statute. 1 The submission may be of any particular matters or demands, or of all demands which the one party has against the other, or of all mutual demands on both sides. 2 The subject matter of an action may, by an order of court upon agreement of the parties, be submitted to arbitration while said ac- tion is pending; 3 and the parties to an action pending may, by agreement and without any order of the court, submit to arbitration all matters involved in such action between them; 4 but in such case the agreement of sub- mission must be acknowledged; 5 but it has also been held that such submission, when made by court by consent of iCode, Sec. 4385; Conger v. lough, 21-111; McKinnis v. Free- Dean, 3-463; Tomlinson v. Ham- man, 38-364; Woodward v. Atwater, mond, 8-40; Van Horn v. Bellar, 3-61; Fink v. Fink, 8-313; Higgins 20-255; McKnight v. McCullou^. v. Kennedy, 20-474; Ratliff v. 21-111; McKinnis v. Freeman, 38- Mann, 5-423; City of Marion v. 364'; Gorman v. Millard, 50-554; Ganby, 68-142; Richards v. Holt, City of Marion v. Ganby, 68-142; 61-529. Richards v. Holt, 61-529; Donican s Code, Sec. 4388; Schomer v. v. Mulry, 70-583. Lynch, 11-461; Marion v. Ganby, 2 Code, Sec. 4387; Tomlinson v. 68-142. Hammond, 8-40; Van Horn v. Bel- * Higgins v. Kennedy, 20-474. lar, 20-255; McKnight v. McCul- 5 Fink v. Fink, 8-313. 146 913.] ARBITRATION. 147 the parties, need not be in writing, nor need it be signed and acknowledged. 8 A proceeding to condemn land for the extension of a street in a city may be submitted to arbitrators, 7 so the question of whether an alleged nui- sance should be abated may be submitted to arbitrators. 8 .A public corporation may arbitrate matters of difference between it and its officers. 9 913. Of the submission. The parties, or those who might lawfully have controlled a civil action in their be- half for the same subject-matter, must sign and acknowl- edge a written agreement, specifying particularly what demands are to be submitted, 10 the names of the arbitra- tors 11 and the court by which the judgment on their award is to be rendered. 12 The submission may be in the following form: FORM OF SUBMISSION TO ARBITRATORS. Whereas differences have existed between us with relation to cer- tain claims and demands which has against , now to the end that the same may be fully and finally settled we, and , do mutually agree that all claims and demands which the said has against the said - - of every kind and nature (or if it is desired to submit certain particular matters or demands they should be specifically set forth), be and the same are hereby submitted to and as arbitrators, who shall have full power to hear and determine the same at - in - - county, Iowa, after giving at least days' notice in writing to each of us, and at said hearing either party thereto may be represented by counsel, and may produce such evidence as he deems proper, which shall be heard by said arbi- trators, and that within days after said hearing, said arbitrators shall make their award in writing, in which they shall determine what amount, if anything, is due from the said to , and when the same shall be paid, which shall be within days there- after, and said award shall be signed by said arbitrators, and judg- ment shall be rendered by the district court of county, Iowa, e City of Marion v. Ganby, 68-142. ward v. Atwater, 3-61; Sweney v. 7 City of Marion v. Ganby, 68- Davidson, 68-386; Skrable v. Pryne, 142. 93-691; Older v. Quinn, 89-445. s Richards v. Holt, 61-529. " Code, Sec. 4386; McKnight v. Dist. Twp. v. Rankin, 70-65. McCullough, 21-111. 10 Code, Sec. 4386; Fink v. Fink. 12 Code, Sec. 4386; Love v. Burns, 8-313; McKnight v. McCullough, 35-150; Foust v. Hastings, 66-522; 21-111; Love v. Burns, 35-150; see City of Marion v. Ganby, 68- Foust v. Hastings, 66-522; see City 142. of Marion v. Ganby, 68-142; Wood- 148 ARBITRATION. [ 913. lor the amount found due by said award, which award shall be filed with the clerk of the district court of county, Iowa, within days after the same has been made. Said arbitrators are hereby authorized to fix the amount of fees which shall be allowed, or taxed, in favor of witnesses that may come before them, and they shall be allowed for their own services at the rate of - - per day during the time they are actually employed in said arbitration, which costs and fees shall be allowed by them in said award. Dated at , this day of , 18. FORM OF ACKNOWLEDGMENT TO THE SUBMISSION. State of Iowa, ) gs County, f Be it remembered, that on this - day of , 18, before the undersigned, a notary public in and for said county, personally appeared and , to me personally known to be the identical persons whose names are affixed to the foregoing submission to arbi- tration, and acknowledged that they signed and executed the same as their voluntary act and deed, for the purposes therein mentioned. (Add official signature and seal.) Generally, an agent can not submit matters in dispute to arbitration, unless authorized by his principal; 13 but if he has authority to prosecute a suit, he may submit to a reference under a rule of court; 14 nor can one partner, unless expressly authorized so to do, submit partnership controversies to arbitration, 15 but it seems such unau- thorized submission would bind the one making it. 16 A proceeding under the code, to condemn land for the extension of a city street, is a suit pending within the meaning of section 4388 of the code, and mav be sub- o * * mitted to arbitrators, on the agreement of parties, by order of the court. 17 So, the question whether or not an alleged nuisance should be abated may be submitted, 18 and questions concerning boundary lines. 19 A claim of is Trout v. Emmons, 29 111., 433. i Jones v. Bailey, 5 Cal., 345; i* Buckland v. Conway, 16 Mass., Karthaus v. Ferrer, 1 Pet., 222. 396. if City of Marion v. Ganby, 68- 15 Jones v. Bailey, 5 Cal., 345; 142. Buchanan v. Curry, 19 John, 137; is Richards v. Holt, 61-529. Buchhoz v. Grandjean, 1 Mich., i Jones v. Boston Mill Corp., 367; Backus v. Coyne, 35 Mich., 5. 6 Pick., 148; Id., 4 Pick., 507. 914.] ARBITRATION. 119 dower may be submitted. 20 The submission in any case can not be revoked, except by consent. 21 So, when changes in civil township boundaries are made, and a dis- trict is to be divided, if the respective boards of directors can not agree on an equitable division of assets and liabil- ities, they must choose arbitrators to decide it, and their decision will be final. 22 Where parties agreed orally to settle difficulties by arbitration, and have selected arbi- trators to whom they furnished evidence of their respec- tive claims, and where the arbitrators refuse to settle certain claims and the parties waive them and an award is found in favor of one party, and complied with by him, but it was not made in writing, and satisfaction there- with was expressed by both parties, they are bound by the award. 23 Provisions in the articles of incorporation of an insurance company that all disputed claims shall be arbitrated before suit and the award be final and con- clusive will not be enforced. 24 Where a policy provided that differences as to the amount of the loss should at the written request of either party be submitted to arbi- tration, and that no action should be brought until after the award, arbitration in the absence of a request, therefore, is not a condition precedent to an action even if such provisions are valid. 25 914. Of the powers of the arbitrators. It would seem that where the court would not have jurisdiction of the subject-matter submitted, then the arbitrators can have none, 26 and the award being in such a case void, a release of an action by one of the parties filed in pursu- ance of such submission is void. 27 Arbitrators are governed by the same rules as refer- ees, except as otherwise agreed upon by the parties, or as 20 Cox v. Jagger, 2 Cow., 638; 24 Prader v. Nat'l Masonic Ace. Green v. Ford, 17 Ark., 586. Assn., 63 N. W., 601. 21 Code, Sec. 4390. 25 Davis v. Anchor Mut. Fire Ins. 22 Code, Sec. 2802; Dist. Twp. v. Co., 64 N. W., 687. Dist. Twp., 45-104; Ind. Dist., etc., 2 Williams v. Walton, 9 Cal., v. Ind. Dist., etc., 45-391; Dist. 142. Twp. v. Dist. Twp., 60-141. a? Whitney v. Stone, 23 Cal., 275. 23 Skrable v. Pryne, 62 N. W., 21. 150 AEBITEATION. [ 915. otherwise set forth in the statute. 28 They are, however, not required like referees to make a finding of facts and their conclusions of law based thereon. 29 They can not amend their award after it is once made and delivered except by consent of parties. They must appoint the time and place of hearing unless the same are fixed in the submission. 30 and must give each party timely notice of the time and place so fixed. 31 The notice of hearing may be in the following form: FORM OF NOTICE OF HEARING BY ARBITRATORS. To : You are hereby notified that the undersigned, who were agreed upon by you and to hear and determine (here state what claims and demands were included in the submission), have duly qualified and will meet at in the city of , Iowa, at o'clock, - noon, for the purpose of hearing any evidence and proof which may be submitted by either party as well as any arguments that may be made. Dated , Iowa, this day of , 18 . , ) signature -, f of -, J arbitrators. But a surety on a submission is not entitled to notice of the hearing, 32 but the parties may waive notice. 33 After due notice, if one party fails to appear, they can proceed to hear and determine the controversy without him. 34 In the absence of an agreement they may refuse to hear counsel. 35 They have power to administer oaths, 36 and compel the attendance of witnesses. 37 They can not go behind the question submitted. 38 915. Of the award. If the time within which the award is to be made is fixed in the submission, no award 28 Code, Sees. 4389, 3736 to 3739, ss Hill v. Hill, 11 Sm. & M., 616; 3745, 3748; Thompson v. Blanch- Harding v. Wallace, 8 B. Monroe, ard, 2-44; McKnight v. McCul- 536. lough, 21-111; Tomlinson v. Ham- 34 Code, Sec. 4391; Russell on Ar- mond, 8-40. bitration, 3 Ed., p. 191. 20 McKnight v. McCullough, 21- as Morse on A. and A., page 130. 111. ss Code, Sec. 4389; Older v. so Morse on Arbitration and Quinn, 89-445. Award, p. 116. 37 Code, Sec. 4389. si Morse on A. and A., p. 117. ss Wyman v. Hammond, 55 Me., 2 Farmer v. Stewart, 2 N. H., 97. 534. 915. ] ARBITRATION. 151 made after that time will have any legal effect unless made upon recommitment of the matter by the court to which it is reported. 39 If the time of filing the award is not fixed in the submission, it must be filed within one year from the time such submission is signed and ac- knowledged, unless the time is by mutual consent ex- tended. 40 The award must be in writing, and must be delivered by one of the arbitrators to the court desig- nated in the agreement, or it may be enclosed and sealed by them and transmitted to the court, and not opened until the court orders, 41 but they may deliver their award to the clerk of the court personally in vacation. 42 .It must be submitted in the manner required by the statute if the court is to be asked to enter judgment on the award. 43 Unless the submission provides otherwise, or parties consent to a minority award, all the arbitrators must concur in the award. 44 If there is no provision in the submission respecting costs, the arbitrators may ap- portion the same in their discretion. 45 In the absence of any provision in the submission, the arbitrators may make their award payable in installments without in- terest. 46 The award may be in the following form: FORM OF AN AWARD. In the matter of the controversy ) Award between , of and . ) arbitrators. The undersigned arbitrators who were duly appointed in the an- nexed submission to hear and determine all claims and demands which the said had against the said of every kind and nature, (or if certain particular demands only were submitted, so state) met at , in county, Iowa, on the day of , 18 , and were then and there duly sworn as such arbitrators, and we did give to each of the parties to said submission days' notice in writing as Code, Sec. 4392. Cullough, 21-111: Fink v. Fink, 8- 40 Code, Sec. 4393. 313; Love v. Burns, 35-150; Foust 41 Code, Sec. 4394; Love v. v. Hastings, 66-522; Sweney v. Burns, 35-150, 153. Davidson, 68-386. 42 Love v. Burns, 35-150, 151; Me- ** Richards v. Holt, 61-529. Knight v. McCullough, 21-111. 45 Code, Sec. 4400; Ratlifl v. 43 Code, Sees. 4385, 4386; Conger Mann. 5-423. v. Dean, 3-463; M'cKnight v. Me- 46 Donican v. Mulry, 70-583. 152 ARBITEATION. [ 916. that we would meet on the day of 18 , at , in county, Iowa, at o'clock, noon, and then hear the evidence and proofs of said parties, and the arguments of their counsel, and we met at said time ajid place, and after hearing all the evidence, proofs and arguments, we do find and adjudge that there is now due and owing from the said to the said the sum of - dollars, which sum it is ordered that said - pay to said - within days from this date. We further find that (here name the witnesses) were each in attendance - days on said hearing, and they are allowed dollars per day for each day's attendance as their fees. That we, as arbitrators, have each been occupied in the hearing of said controversy and in agreeing upon and in preparing our award, days. Dated , Iowa, the 18. signature of arbitrators. 916. Of proceedings on an award in court. The cause will be entered in the docket of the court at the term to which the award is returned, and will be called up and acted on in its order. But the court may require actual notice to be given either party, when it appears necessary and proper, before acting on the award. 47 The award may be rejected by the court for any legal and suf- ficient reasons, or it may be re-committed for a hearing to the same arbitrators, or to any others agreed upon by the parties, or appointed by the court if they cannot agree. 48 It may be rejected if it appears that one of the parties was not bound by or did not authorize the arbi- tration, 49 or if one of the arbitrators refused to act. 50 It may entertain jurisdiction to set aside an award made by arbitrators under the code to make division of assets and liabilities in case of a division of a district township. 51 But it can not decrease the amount of the award in such case, nor differently apportion the costs. 52 It may be set aside for fraud, mistake, misconduct or *? Code, Sec. 4396. Daniels v. Van Fossen, 11-195; is Code, Sec. 4397; Sullivan v. Sharp v. Woodbury, 18-195. Frink, 3-66; Dunn v. Starkweather, * Sweney v. Davidson, 68-386. 6-466; Ratliff v. Mann, 5-423; Hig- o Kent v. French, 76-187. gins v. Kinneady, 20-474; Sweney si Dist. Twp. v. Dist. Twp., 54- v. Davidson, 68-386; M. & M. R. 286. Co. v. S. C. & St. P. R. Co., 49-604; sz Dist. Twp. v. Ind. Dist., 60- Depew v. Davis, 2 G. Gr., 260; Me- 141; Ratliff v. Mann, 5-423. 916.] ARBITRATION. 153 partiality of the arbitrators. 53 To entitle a party to have an award set aside for a mistake or for fraud he must show the same and that he was prejudiced thereby and that, but for it, the award would have been different. 54 If there be error or mistake in their finding it must be made apparent. 55 The decision of the arbitrators will stand until it is shown that they have abused the discretion given them by law and the agreement of submission. 56 Nor will an award be set aside because it was not "enclosed and sealed and transmitted to the court" when the record shows that it was placed in the hands of the clerk by one of the arbi- trators. 57 Nor can an award be rejected or re-committed at the mere discretion of the court. 58 But if, by the terms of the submission, they are to determine all questions at issue, it may be set aside if not final and conclusive of the rights of the parties. 59 It will not be set aside for mistake unless it is shown that if the mistake had not occurred the award would have been different, and more favorable to the party complaining. 60 When the award has been adopted it must be filed and entered of record, and will have the same force and effect as the verdict of a jury; judgment may be entered and execution issued thereon. 61 And when the award has been returned to court it is a proceed- ing in court, and prior to its adoption is in the nature of a verdict which has been agreed upon but not reported, and the parties cannot abandon the proceeding and sue upon the award as a common law award. 62 Our statute pro- vides that nothing in it shall be construed to affect in any manner the control of the court over the parties, the arbitrators or their award; nor to impair or affect any ac- tion on the award, or on any bond or other engagement to ss Sullivan v. Frink, 3-66; Adams ss Brown v. Harper, 54-549. v. Bowery Fire Ins. Co., 85-6. 59 The M. & M. R. Co., v. The S. s* Tank v. Rohweder, 67 N. W., C. & St. P. R. Co., 49-604. 106. 60 Gorham v. Millard, 50-554. 55 Dunn v. Starkweather, 6-466. ei Code, Sec. 4398. 56 Ratliff v. Mann. 5-423. 62 Older v. Quinn, 89-445 57 Higgins v. Kinneady, 20-474. 154 ARBITBATIOtf. [ 917, 918. abide an award. 62 When an appeal is taken to the su- preme court on a judgment rendered on an award, copies of the submission and award, together with all affidavits, must be filed with the clerk of the supreme court. 63 A justice of the peace may render a judgment on an award when the amount is within his jurisdiction. 64 And an appeal will not lie from a judgment of a justice on an award, and his refusal to set aside the award or to re- commit the case may be reviewed on writ of error. 65 The willful misconduct of an arbitrator may be shown to de- feat an arbitrator who sues for his fees. 66 917. Of bonds to abide the award. Often when parties submit matters in controversy to arbitrators, they, at the time of making the submission, enter into a bond to abide the determination of the arbitration. Said bond may be in the following form: FORM OF BOND TO ABIDE AWARD OF ARBITRATORS. I, , hereby acknowledge myself indebted to in the penal sum of hundred dollars, lawful money of the United States, well and truly to be paid. The condition of this obligation is this, that whereas said and did, on the day of , 18 , enter into a written agreement to submit certain claims and demands therein mentioned to and as arbitrators to hear and de- termine, now if the said shall well and truly abide by the award which may be made by said arbitrators, and fulfill all the condi- tions thereof on his part, then this obligation to be null and void, otherwise to be in full force and virtue. Dated day of , 18. , principal. , surety. (The above form of bond can be changed to suit each case, or a mutual obligation may be entered into between them.) 918. Of common law submissions and awards, At common law parties might submit by parol, or in writing, any matter in controversy between them to arbi- tration, and that power has not been affected by the statute. 67 And the remedy upon an award of arbitrators 62 Code, Sec. 4401. Bever v. Brown, 56-565. s Code, Sec. 4399. ? Morse on A. & A., p. 43; Con- e* Whitis v. Culver, 25-30. ger v. Dean, 3-463; McKinnis v. 5 Whitis v. Culver, 25-30. Freeman, 38-364; Fink v. Fink, 8- 919.] ARBITRATION. 15 J when the submission has not been in conformity with the statute is by an action thereon. 68 Such a submission is construed most liberally, 69 and in the absence of a show- ing of fraud, or partiality, a common law award will be sustained; 70 and mere departures from the agreement of submission, which in no way affect the rights of the par- ties, will not defeat an action on a common law award. 71 Nor will a judgment on a common law award be disturbed unless it be plainly and palpably unsupported by the evi- dence. 72 919. Of the action on the award or bond, After the award is made, if the party who has a duty to perform under it, fail to comply with its provisions, an action will lie on the award against him, 73 or if a bond has been given conditioned for compliance with the award, an action may be brought on it. 74 The petition on an award may be in the following form: FORM OF PETITION ON AN AWARD OF ARBITRATORS. Title, ) Venue. \ The plaintiff for cause of action against the defendant states: That on or about the day of , 18 , certain disputes and controversies existed between the plaintiff and defendant concerning (here insert statement of disputes as set forth in submission), and thereupon on the day above mentioned, said plaintiff and defendant agreed in writing to submit the same to and as arbi- trators between them, a copy of which said agreement is hereunto an- nexed and marked exhibit "A," and made a part thereof. That thereafter said arbitrators duly qualified and after giving due notice to each of said parties of the hearing of the matters in dispute between plaintiff and defendant, did on the day of , 18 , at , hear said parties and the evidence and arguments introduced by them, and on the same day (or if another day state the time), said arbitrators duly made and published their award in writing of and concerning the matters so referred to them, and thereby awarded and 313; Foust v. Hastings, 66-522; TO McKinnis v. Freeman, 38-364. Love v. Burns, 35-150; McKnight 7i Foust v. Hastings, 66-522. v. McCullough, 21-111. 72 Foust v. Hastings, 66-522. os Conger v. Dean, 3-463; Me- 73 McKinnis v. Freeman, 38-364; Kinnis v. Freeman, 38-364; Thorn- Foust v. Hastings, 66-522; Code, ton v. McCormick, 75-285. Sec. 4401. e McKinnis v. Freeman, 38-364. 74 Code, Sec. 4401; Estee's Pldg. Vol. 1, Sec. 651. 156 AKBiTKATION. [ 919. found; that said defendant was justly indebted to the plaintiff in the sum of dollars, for and on account of (here insert statement of matters on which amount was found due), a copy of which said award is hereto attached and marked exhibit "B,V and made a part hereof. That plaintiff duly performed all the conditions of said award on his part, and afterward, on or about the - day of , 18 , caused a notice of said award and its terms and conditions to be served on the defendant, and then demanded of him payment of said sum of - dollars, so awarded to the plaintiff, as aforesaid. That the defendant has not paid the same nor any part thereof though the time within which said sum was to be paid according to the terms of said award has long since elapsed, and there is now due from the defendant to the plaintiff thereon the sum of - - dollars, with interest at - - per cent, from the - - day of - , 18 , for which amount plaintiff prays judgment against said defendant and for the costs of this action. (Add verification.) , attorney for plaintiff. (Attach the exhibits referred to in the petition.) An action to recover on an award is an action at law, and can not be referred against the objection of a party. 75 76 McMartin v. Bingham, 27-234; see Bellows v. Dist. Twp., 70-320. CHAPTER LVI. OF THE ADMISSION OF ATTORNEYS. Sec. 920. Of statutory provisions. 921. Of rules of the supreme court. Section 920. Of statutory provisions. The power to admit persons to practice as attorneys and counselors in the courts of Iowa, or any of them, is vested exclusively in the supreme court. 1 Every applicant for admission must be at least twenty-one years old, of good moral character and an inhabitant of the State, and must have actually and in good faith pursued a regular course of study of the law for at least two full years, either in the office of a mem- ber of the bar in regular practice of this State or other State, or of a judge of a court of record thereof, or in some reputable law school in the United States, or partly in such office and partly in such school, but in reckoning such period of study the school year of any such law school consisting of not less than thirty-six weeks, exclusive of vacations, shall be considered equivalent to a full year. 2 Every such applicant must be examined by the court, or by a committee of not less than three members of the bar appointed by the court, as to his learning and skill in the law; and the court must be satisfied, before admitting to practice, that the applicant has actually and in good faith devoted the time above stated to the study of the law, and possesses the requisite learning and skill therein. 3 Such examinations must be held in open court; pro- vided that the graduates of the law department of the State university may be examined at the university in 1 Code, Sec. 309. s Code, Sec. 311. 2 Code, Sec. 310. 157 158 THE ADMISSION OF ATTOBXEYS. [ 921. Iowa City by a committee of not less than three members of the bar or judges of courts of record appointed by the supreme court for that purpose; and upon the certificate of such committee that such candidates possess the learning and skill requisite for practice of the law, they shall be admitted without further examination. 4 A person becoming a resident of this State, after having been admitted to the bar of any other of the United States in which he has previously resided, may, in the discretion of the court, be admitted to practice in Iowa without ex- amination or proof of period of study or proof of other qualifications required herein, and on satisfactory proof that he has practiced law regularly for not less than one year in the State from which he comes, after having been duly admitted to the bar according to the laws of such State. 5 Persons admitted- to the bar must take an oath, or affirmation, to support the constitution of the United States and of the State of Iowa, and to faithfully dis- charge the duties of an attorney and counselor of this State, according to the best of their ability. 6 The supreme court is authorized by the law to prescribe by general rules, the mode in which examinations shall be conducted, and in which the qualifications required as to age, residence, character and term of study shall be proved, and may make further rules not inconsistent with the law for the purpose of carrying out its object and in- tent, 7 Members of the bar from other States, actually engaged in any cause or matter pending in any court in this State, may be permitted by such court to appear in and conduct such cause or matter, while retaining his resi- dence in another State, without being subject to the pro- visions of the law heretofore stated. 8 921. Of rules of the supreme court. The su- preme court has adopted the following rules which are now in force with reference to admission to the bar, viz: * Code, Sec. 312. 1 Code, Sec. 315. B Code, Sec. 313. 8 Code, Sec. 316. e Code, Sec. 314. 921. J THE ADMISSION OF ATTORNEYS. 159 98. Examinations of applicants for admission to the bar will be held at each regular term of the court com- mencing on the first day of the term. 99. Each applicant for admission shall, at least five days before the first day of the term at which he asks to be examined, file with the clerk a written request for ex- amination in his own handwriting and signed by himself, accompanied with proofs of his qualifications as to age, residence and character and time of study, as required by code, section 310, all prepared and presented in the man- ner prescribed by these rules. 100. Proof of qualification as to age, character, place of residence, and time and place of study, shall be by affi- davit made before some officer authorized to administer oaths. When made before an officer not having a seal, other than a judge of the supreme, district or superior courts of this State, his official character and signature shall be authenticated by a proper certificate, attested by the seal of a clerk of a court of record. The proof of the applicant's character, residence and age, shall be by affidavits from at least two witnesses, and the applicant shall also make affidavit as to his age and place of residence. Proof of his term of study shall be by affidavit of the member of the bar or judge, with whom he pursued his studies; and when he has studied at a law school, such fact and his term of study shall be shown by the affidavit of one or more of the professors or instruc- tors of such school. Such affidavits must show that the applicant has actually, and in good faith, pursued the study of the law in the manner and for the time prescribed by the statute; and must also show that the affiant is a practicing lawyer, judge of a court of record, or professor or instructor in a law school at which the applicant studied. 101. In estimating the time of study, a school year of thirty-six weeks spent in a reputable law school in the United States shall be equivalent to a full year spent in an office, and a fraction of a school year spent in such law school shall be considered the equivalent of the same frac- 160 THE ADMISSION OF ATTOBNEYS. [ 921 tion of a full year spent in an office of an attorney or judge. 102. On the morning of the first day appointed for the examination, the court will appoint a committee of not less than three members of the bar, who, with the attorney general, as ex officio chairman of the committee, will assist in the examination of applicants for admission. 103. The court will also prepare not less than thirty printed questions to be submitted to each applicant which he shall answer in writing. While engaged in answering these questions he shall not have access to books or pa- pers, nor will he communicate with any one upon the sub- ject of the examination. The printed questions will be varied at each term. 104. Upon consideration of the proofs as to qualifica- tion and of the oral and written examinations, the court will admit or reject the candidate. 105. Students in the law department of the university who are recommended by the faculty of said department as candidates for graduation, and as persons of good moral character who have actually and in good faith stud- ied law for the time and in the manner required by statute, at least one year of such study having been as a student in said department, may be examined at the uni- versity by a committee composed of not less than three persons, members of the bar, or judges of courts of record, appointed by the supreme court for that purpose, and upon the certificate of such committee that such candi- dates possess the learning and skill requisite for the prac- tice of law, they shall be admitted without further exam- ination. 106. The chief justice or any judge of this court may administer the oath prescribed by the statute at Iowa City to each and every person recommended by the examining committee appointed to examine students of the law de- partment, and the person so administering the oath shall report to the clerk of this court the names and postoflice addresses of the persons so admitted. The clerk will thereupon enter of record the fact of their admission, and upon payment of the requisite fee will issue to each of the ,921.] THE ADMISSION OF ATTOKNEYS. 161 persons so reported, a certificate of admission to the bar. 107. Any person who becomes a resident of this State after having been admitted to the bar of any other of the United States in which he has previously resided, upon satisfactory proof that he is at least twenty-one years of age, of good moral character and an inhabitant of this State, and that he has practiced law regularly for not less than one year in the State from which he came, may be admitted to practice in this State without examination, or proof of the period of study required of other applicants. Proof of admission to the bar in another State may be made by the original certificate of admission, or by a duly authenticated copy of the record showing his admission to the bar, proved as records of sister States, must be when admitted in evidence in the courts of this State. Proof of other qualifications must be made in the same manner as the showing required of applicants for exam- ination. 108. Any member of the bar of another State actually engaged in any cause or matter pending in this court may appear in and conduct such cause or matter, while re- taining his residence in such other State, without being admitted to practice under the foregoing provisions. Vol. 11-11 CHAPTER LVII. OF THE ADMINISTRATION OF OATHS. Sec. 922. Who may administer. Section 922. Who may administer. Judges of the supreme, district, superior and police courts, clerks of said courts and their deputies; county auditors and their deputies; justices of the peace and notaries public within the counties of their residence; sheriffs and their depu- ties, in cases where they are authorized by law to select commissioners or appraisers, or to impanel jurors for the view or appraisement of property, or are directed as an official duty to have property appraised, or take the answers of garnishees; the governor, secretary of State, auditor and treasurer of State, in any matter pertaining to the business of their respective offices, or that may come before them for consideration and action as members of the executive council; the mayor and clerk of cities and towns; judges and clerks of election, township clerks, the chairman of the board of supervisors; the surveyor or coroner in any county, in relation to any duty imposed upon either of them where the administration of an oath may be required ; members of all boards of any state in- stitutions, of all commissions, boards or bodies created by law, and all persons, referees or appraisers appointed by authority of law, who have any duty to perform by virtue of their office or appointment requiring the admin- istration of oaths, are authorized to administer oaths and take affirmations. Notaries public may perform such services in any ad- joining county in which they have filed with the clerk of the district court a certified copy of the certificate of their appointment 1 The court, that is, the judge while hold- ing court, may administer an oath. 2 i Code, Sec. 393. 2 State v. Caywood, 65 N. W. Rep., 385. 162 CHAPTER LVIII. OF ASSIGNMENTS FOR THE BENEFIT OF CREDITORS. Sec. 923. When valid as a general assignment. 924. When valid as a partial assignment. 925. Of assignments embraced in several instruments. 926. Of defective assignments. 927. Of insolvency. 928. Of assignments by partners. 929. Of the inventory. 930. Of property passed by the assignment. 931. Of the rights of the assignee. 932. Of the duty of the assignee. 933. Of the notice. 934. Of the filing of claims. 935. Of claims filed after three months. 9i56. Of the assignee's report of creditors. 937. Of contesting claims. 938. Of priority of taxes. 939. Of preferred claims. 940. Of dividends. 941. Of the settlement. 942. Of sale of the property. 943. Of removal of the assignee. 944. Of the death or misconduct of the assignee. Section 923. When valid as a general assignment. Under our law no general assignment of property by an insolvent person, firm or corporation, or in contem- plation of insolvency, for the benefit of creditors, will be valid unless it is made for the benefit of all the creditors in proportion to the amount of their respective claims; and the assent of the creditors to such an assignment is presumed. 1 Such an assignment may be in the form of a deed and may be executed in another State. 2 If the instrument purports on its face to be a general assignment it will be so treated, although it designates persons as creditors who. do not hold valid claims. 3 It would, however, be otherwise if it is made for a fraud- iCode, Sec. 3071. s Hamilton-Brown Shoe Co v 2 Schee v. La Grange, 78-101. Mercer, 84-537. 163 164 ASSIGNMENTS. [ 923. ulent purpose or for the benefit of a portion of the cred- itors only. The following matters will not avoid an assign- ment: Omitting property which is exempt from execution; the fact that the assignor supposes he will escape further liability for his debts; the fact that some of the creditors are attempting to defraud others under the assignment; 4 the fact that the assignee is directed to sell the property when convenient, and as soon as it can be done without material sacrifice; 5 a provision in an assignment for the payment of the debts as fast as they become due; 6 a pro- vision authorizing the assignee to compound with debt- ors ; 7 the failure of the assignee to report the amount and condition of the estate; 8 the employment by the assignee of the assignor. 9 The following matters w r ill avoid an assignment: When it is for the benefit of creditors and preferences are given; 10 authorizing the assignee to sell on credit. 11 A creditor or a co-debtor may be the assignee. 12 Deliv- ery of the assignment to the attorney of the assignor, with directions to file it is in effect a delivery to the assignee. 13 A general assignment directing the appli- cation of the property of the insolvent to the payment of his debts will not affect a creditor's right to priority. 1 * A general assignment for the benefit of creditors may be in the following form: FORM OF A GENERAL ASSIGNMENT FOR THE BENEFIT OF CREDITORS. The undersigned (name), a (describe the business), residing in the city (or town) of , in the county of , and State of Iowa, being insolvent and being desirous of having all of my property which is sit- uated in the city (or town) of , in county, Iowa, applied in payment of my debts, do hereby make a general assignment to (name of assignee) as assignee, a (state his business), residing in the city (or town) of , in the county of , and State of Iowa, of all of < Bradley v. Bischel, 81-80. 10 Wise v. Wilds, 77-586; Arnold 5 Wooster v. Stanfield, 11-128. v. Wilds, 77-593. e Meeker v. Sanders, 6-60. " Meeker v. Sanders, 6-61; Berry 7 Berry v. Hayden, 7-469. v. Hayden, 7-469. s Savery v. Spaulding, 8-239. Wooster v. Stanfield, 11-128. Savery v Spaulding, 8-239. * 3 American v. Frank, 62-202. i* In re Carter, 67 N. W., 239. ?. } 88 ' 924, 925.] ASSIGNMENTS. 165 my property both real and personal of every kind and nature, and authorize said assignee to sell the same and apply the proceeds thereof, to the payment of all of my debts and for the -benefit of all of my creditors in proportion to the amount of their respective claims with- out any preferences whatsoever. Dated this , day of , 18. , assignor. State of Iowa, County. Be it remembered that on this day of , 18 , per- sonally appeared before me (name), a notary public in and for (name of county), (name of assignor), the assignor above named, presumably known to me to be the identical person whose name is affixed to the above and foregoing instrument, as assignor, and acknowledged the execution of the same to be his voluntary act and deed for the pur- poses therein mentioned. Witness my hand and notarial seal the day and date above written. [Seal.] (Signature of notary), Notary public in and for : County, Iowa. 924. When valid as a partial assignment. The common-law right of an insolvent to make a partial assignment for the benefit of creditors is not affected by the statute. 15 And the provisions of the statute with ref- erence to a general assignment do not apply in such a case. 16 If a debtor acts without fraud he may even transfer property to certain creditors in payment of their claims and thereafter make a general assignment. 17 A debtor may encumber all of his property to secure a portion of his debts, even though nothing is left for the payment of other creditors. 18 Nor will the validity of such partial assignment be effected by the knowledge of the debtor that other creditors are not provided for, or that he knew he was insolvent, or that he intended to exclude other creditors from sharing in his estate. 19 925. Of assignments embraced in several in- struments. No general rule can be laid down from is Loomis v. Stewart, 75-387. 13-474; Davis v. Gibbon, 24-257; IB Buck v. Chase, 85-296. Farwell v. Howard, 26-381. IT Lampson v. Arnold, 19-479; 19 Cowles v. Rickets, 1-582; But- Van Patten v. Burr, 52-518; Bolles ler v. Diddy, 83-533; Stewart v. v. Creighton, 73-199. Mills County Nat'l Bk., 76-571; is Rollins v. Shaver Wagon, Southern White Lead Co. v. Haas, etc., Co., 80-380; Hutchinson v. 73-399. Watkins, 17-475; Fromme v. Jones, 166 ASSIGNMENTS. [ 926. which it can be determined in all cases when several in- struments are executed by the debtor disposing of his property for the benefit of his creditors, whether the various instruments will be treated as constituting a single transaction, a disposition of all of the debtors' property with preferences and therefore void as a gen- eral assignment or not. In the following cases it was held that under the facts the instruments were to be treated as a general assignment, with preferences, and therefore void. 20 In the following cases the instruments, though exe- cuted near the same time, were held valid: 21 In deter- mining whether a disposition of property is a general assignment, in such cases, the intention of the parties is controlling. 23 If the party thus disposing of his prop- erty intended to make an assignment and if the instru- ments were all a part of the same transaction they will be construed as constituting a general assignment and being with preferences will be void. 23 On the other hand, if there was no intention to make an assignment, and if the several instruments were independent transac- tions, they will be held good. 24 926. Of defective assignments. An assignment for the benefit of creditors to be valid must be uncondi- tional, otherwise it will be void. 25 But mere informality will not defeat an assignment. 26 And an assignment making no reference to real estate, but apparently de- 20 Burrows v. Lendorff, 8-96; 24 Cleveland, etc., Stove Co. v. Cole v. Dealhman, 13-551; Van Pat- Welson, 80-697; Loomis v. Stewart, ten v. Burr, 52-518; Moore v. 75-387; Gage v. Perry, 69-605; Far- Church, 70-208; Rock Island Plow well v. Jones, 63-316; Van Patten, Co. v. Breese, 83-553; Falker v. v. Thompson, 73-103; Bradley v. Linehan, 88-641; Van Horn v. Hopkins, 67 N. W., 261; In re Smith, 59-142. Bloomfleld Woolen Mills, 70 N. W., 21 McCandless v. Hazen, 67 N. 115; Farwell v. Cunningham, 86- W., 256; Clement v. Johnson, 85- 67; Farwell v. Weber, 91-122; 566; Gage v. Parry, 69-605; Le Kohn v. Clement, 58-589; Carson v. Moyne v. Braden, 87-739. Byers, 67-606; Aulman v. Aulman, 22 Letts v. McMaster, 83-449. 71-124; Garrett v. Burlington Plow 23 Perry v. Vezina, 63-25; Greg- Co., 70-697; Jaffray v. Greenbaum. Ion v. Creglon, 69 N. W., 446; El- 64-492. well v. Kimball, 69 N. W., 286; 25 Sperry v. Gallaher, 77-107; Bradley v. Bailey, 64 N. W., 758; Williams v. Gartrell, 4 G. Gr., 287. Cadwells Bk. v. Crittenden, 66-237. 26 Meeker v. Sanders, 6-61. 927, 928, 929.] ASSIGNMENTS. 167 signed to be a general assignment was held good as such. 27 An assignment regular on its face can not be collaterally attacked. 28 927. Of insolvency. One may be said to be in- solvent so as to justify the making of an assignment for the benefit of creditors if he is unable to pay his debts in the usual course of business, or to proceed in business without making a general arrangement with his cred- itors. 29 928. Of assignments by partners. Generally an assignment by one partner of the firm's property will not be good and will not prevent an attachment by a creditor of the firm. 30 When a firm executed a conveyance covering all of their property to a trustee and authorized him to dispose of the same for the benefit of creditors and providing for the benefit of certain creditors it was held that the con- veyance constituted an assignment and was invalid as to creditors and would not prevail as against an attach- ment levied on the property. 31 929. Of the inventory. The assignment must be in writing and set out the name of the assignor, his resi- dence and business, the name of the assignee, his resi- dence and business, and in a general way the property assigned and its location, and the purpose of the assign- ment; it must be signed and acknowledged in the manner prescribed for the execution and acknowledgment of deeds, and must be recorded in the office of the recorder of the county where the assignor resides, and in any other county in the State in which he has real property to be assigned thereby, in the records of deeds and indexed in the proper index books. The as- signor must annex to the assignment an inventory, under oath, of his estate, real and personal, according to the 27 Loomis v. Griffin, 78-482. Savery v. Spaulding, 8-239; see In 28 McCandless v. Hazen, 67 N. re Bloomfield Woolen Mills, 70 N. W., 256. W., 115. 20 State v. Cadwell, 79-432; Me- so Loeb v. Pierpont, 58-469. Candless v. Hazen, 67 N. W., 256; si King v. Gustafson, 80-207. 168 ASSIGNMENTS. [ 930, 931. best of his knowledge, and a list of his creditors and the amount of their respective demands, but such inventory will not be conclusive as to the amount of the debtor's estate; and such assignment will vest in the assignee the title to any other property belonging to the debtor at the time of making the assignment, not exempt from execution. As soon as the assignment is recorded it must be filed, with the inventory and list of creditors, in the office of the clerk of the district court, as must all sub- sequent papers connected with the proceedings. 32 The provision of the law as to recording is intended for the protection of subsequent purchasers and when an assignment was properly executed and acknowledged and the assignee had consented to accept the trust prior to the levy of an attachment, it was held that the failure to record it until a few seconds after the writ came into the sheriff's hands would not invalidate the assignment. 33 And an assignment for the benefit of creditors, though not acknowledged or recorded takes precedence over a judgment rendered after its execution. 34 From time to time as additional property may come into the hands of the assignee he must file an additional inventory and valuation of it and may thereupon be required to give additional security. 35 930. Of property passed by the assignment. The equity of redemption of a mortgagor of personal property passes by the assignment. 36 All property pos- sessed by the assignor at the time of the assignment passes by it. 37 931. Of the rights of the assignee. The as- signee and creditors have no greater rights than the assignor had. 38 Nor has the assignee higher rights than the creditors themselves would have had, had the assign- ment not been made. 39 32 Code, Sec. 3072. Gage v. Perry, 69-605; Prouty v. 33 American v. Frank, 62-202. Clark, 73-55. ** Munson v. Frazer, 73-177. ss Meyer v. Evans, 66-179; Schal- as Code, Sec. 3082. ler v. Wright, 70-667. 86 Gimble v. Ferguson, 58-414. so Davenport Plow Co. v. Lamp., 37 Goldsmith v. Willson, 67-662; 80-722. 932, 933.] ASSIGNMENTS. 1G9 932. Of the duty of the assignee. The assignee must file with the clerk of the district court where the assignor resides a true and full inventory and valuation of the estate under oath, and must give a bond to the clerk, for the use of the creditors, in double the amount of the inventory and valuation, with one or more sure- ties, to be approved by said clerk, for the faithful per- formance of his trust and may then proceed under said assignment. 40 Taking possession of the property is evidence of an acceptance of the trust and he may bring an action in relation to the property before he has filed his inventory and bond. 41 If the assignee orally agrees to accept the trust be- fore the assignment is executed and after it is filed for record an attachment is levied on the property, the as- signment will take effect before the levy of the attach- ment. 42 933. Of the notice. The assignee must at once give notice of the assignment by publication in some newspaper in the county for six weeks and must mail a notice to each creditor of whom he is informed, directed to his usual place of residence, requiring him to present his claim under oath to him within three months there- after. 43 The creditor must at his own risk see to it that his claim reaches the assignee in time or at least is mailed in time to reach him within the time provided. 44 But the creditor should file his claim even if not notified. 45 A creditor can not insist upon the invalidity of the as- signment and at the same time seek to share under it. 46 If the creditor has special security he may be required by the other creditors to exhaust it before claiming a dividend. 47 40 Code, Sees. 3073, 3082. 74-403; In re Assignment of Rea, 41 Price v. Parker, 11-144. 82-231. 42 Singer v. Armstrong, 77-397. 45 Carter v. Lee, 82-26. Code, Sec. 3074. 45 Loomis v. Griffin, 78-482. 44 Conlee Lumber Co. v. Meyer, 47 Wurtz v. Hart, 13-515. 170 ASSIGNMENTS [ 934, 935, 936. The time for filing claims begins to run from the date of the first publication in the newspaper. 48 934. Of the filing of claims. All creditors must file their claims with the assignee within three months from the date of the first publication unless the court shall extend the time, which it may do in its discretion when peculiar circumstances seem to justify, but in no case can time be extended beyond nine months. The claims must be clearly and distinctly stated and sworn to by the claimant or by some person acquainted with the facts. 49 935. Of claims filed after three months. Cred- itors may claim debts to become due, as well as debts due, but on debts not due a reasonable rebate must be made if the same do not draw interest, and all creditors not filing their claims within three months from the first publication of notice will not be permitted to participate in the dividends until after the payment in full of all claims presented within said time, except as otherwise provided. 50 But an application to have a claim already filed may be made after the three months. 51 And a creditor having collateral security need not file his claim with the assignee. 52 As to priority of claims. 53 936. Of the assignee's report of creditors. At the expiration of the three months the assignee must re- port and file with the clerk of the court a true and full list, under oath, of all such creditors of the assignor as shall have claimed to be such, with a statement of their claims, an affidavit of publication of the notice, and a list of the creditors, with their places of residence, to whom notice has been mailed, and the date of such mail- ing. 54 The failure of the assignee to perform his duty Scott v. Thomas, 62 N. W., " i n re Knapp, 70 N. W., 626. 790; Code, Sec. 3075. Satterlee v. Kirby, 86-518. 49 Code, Sec. 3075. es Budd v. King, 83-97. 'so Code, Sec. 3083; Carter v. ** Code, Sec. 3076; Conlee Lum- Lee, 82-26; In re Assignment of ber Co. v. Meyer, 74-403; In re As- Holt, 45-301; Conlee Lumber Co. v. signment of Rea, 82-231. Meyer, 74-403; McKinley v. Nourse, 67-118; see Code, Sec. 3075. 937, 938, 939.] ASSIGNMENTS. 171 will not be allowed to predjudice the rights of a claim- ant. 55 Under some circumstances one, by filing a claim with the assignee, will not be prevented from claiming a preference, nor be estopped from disputing the validity of the assignment. 56 Section applied. 57 937. Of contesting claims, Any person inter : ested may appear within three months after the filing of the report and contest the claim or demand of any cred- itor by filing written exceptions thereto with the clerk, who must cause notice thereof to be given to such cred- itor, which must be served as an original notice and re- turnable at the next term, when the court will hear the proofs and allegations of the parties, and render such a judgment as shall be just, and it may allow a trial by a jury. 58 No pleadings are required in addition to such exceptions. 59 In this proceeding the court may deter- mine the question of priority among creditors. 60 But an independent action in equity may be brought to deter- mine questions of priority. 61 Whether under this section a cause might, on motion, be transferred to the equity docket when equitable issues were involved is an open question. 62 938, Of priority of taxes. Assessments on prop- erty held under assignments for the benefit of creditors or taxes levied thereon under the laws of the State or the ordinances of a municipal corporation are entitled to priority and to be paid in full by the assignee and such claims need not be filed with him. 63 939. Of preferred claims. If a claim is for per- sonal services rendered the assignor within ninety days 55 Lacey v. Newcomb, 63 N. W., Perry v. Murray, 55-416. 704. si Knoxville Nat'l B'k v. Ham- 56 Muse v. Satterlee, 81-491; rick, 67-583; but see Mehlhop v. Franzen v. Hutchinson, 62 N. W., Ellsworth, 64 N. W., 638. 698. e 2 In re Assignment of Hobson, 57 In re Cadwells Bk., 89-533. 81-392. ss Code, Sec. 3077. es Code, Sec. 3078; Brooks v. 6 In re Assignment of Guyer, Eighmey, 53-276; Huiscamp v. Al- 69-585; In re Cadwells Bk., 89- bert, 60-421; Brown v. Kiene, 72- 533. 342. 172 ASSIGNMENTS. [ 940, 941. next preceding the execution of the alignment, it must be paid in full. 64 940. Of dividends. Subject to the provisions of the preceding section and of the following section and if no exception be made to the claim of any creditor, or if the same has been adjudicated, the court will order the assignee, from time to time, to make fair and equal dividends among the creditors of the assets in his hands in proportion to their claims, and as soon as may be to render a final account of his trust to the court, which will allow him such compensation in the final settlement as may be considered just and right. If, upon making the final dividend to the creditors the assignee shall be unable, after reasonable efforts, to ascertain the place of residence of any creditor, or any person authorized to receive the dividend due him, he must report such fact to the court, with evidence show- ing diligent attempts to find such party, whereupon the court may, in its discretion, order the distribution of said unclaimed dividend among the other creditors. 65 The court may direct the assignee as to payments to be made without the formal application of either party. 66 941. Of the settlement. The assignee is at all times subject to the supervision and orders of the court or judge, and he may be compelled by citation or attach- ment to file reports of his proceedings and of the situa- tion and condition of the trust, and to proceed in the execution of his duties; and he must dispose of all per- sonal property and divide the proceeds of the same among creditors as they may be entitled thereto within six months from the date of the assignment, and must dispose of real estate within one year from such date, and make full settlement by that time, unless the court or judge, for good reason shown, shall extend the time within which such disposition or settle- 4 Code, Sec. 3079. 68 In re Assignment of Hooker, es Code, Sec. 3079; In re Carter, 75-377. 67 N. W., 239. 942, 943.] ASSIGNMENTS. 173 ment shall be made. 67 If the assignment is claimed to be fraudulent by a creditor he should attack it in the as- signment proceedings, and can not levy an attachment upon the property in an action against the assignor. 68 The assignee may not pay an illegal claim simply be- cause no exception has been made thereto by a creditor. 69 An assignment will not be declared fraudulent or void for want of any list or inventory. The court or judge upon the application of the assignee or of any creditor may compel the appearance in person of the debtor before him to answer under oath as to such matters as may be inquired of him, and he may be fully examined under oath as to the amount and situation of his estate, and the names of the creditors and the amounts due to each, with their places of residence, and he may be compelled to deliver to the assignee any property or estate embraced in the assignment. 70 942. Of sale of the property. The assignee may dispose of and sell all the assigned estate, real and per- sonal, which the debtor had at the time of the assign- ment, and may sue for and recover in his name every- thing belonging or appertaining to said estate, and gen- erally may do whatever the debtor might have done in the premises; but no real estate can be sold without notice published, as in case of sales on execution, unless the court or judge shall otherwise order, and no such sales will be valid until approved by such court or judge. 71 And an assignee's sale is a judicial sale and cilts off the right of dower. 72 943. Of removal of the assignee. Upon a writ- ten application of two-thirds of the creditors in number, and two-thirds in amount, the court must remove the as- signee and appoint in his place a person approved by the creditors in the same number and amount, and the per- eT Code, Sec. 3080; McCandless v. Code, Sec. 3081. Hazen, 67 N. W., 256. Code, Sec. 3084; Lynch v. s Hamilton-Brown Shoe Co. v. Simmons Hardware Co., 80-503; Mercer, 84-537. Waterman v. Baldwin, 68-255. In re Cadwells Bk., 89-533. " Stidger v. Evans, 64-91. 174 ASSIGNMENTS. [ 944. son so removed must immediately turn over to the clerk of the district court, or to any person appointed by the court, all moneys and property of the estate in his hands. If an assignee resides out of the estate, or becomes insane, or otherwise incapable of discharging the trust, the court may, upon ten days' notice to him or his attorney, remove him and appoint another in his stead. 73 And at- torney's fees in resisting a removal when the motion was overruled were held properly taxed to the estate. 74 944. Of the death or misconduct of the as- signee, If an assignee die before closing his trust, or if he fail or neglect for the period of twenty days after the making of an assignment to file an inventory and valuation, and give bond, the district court, or any judge thereof, of the county where such assignment is recorded, on the application of any person interested, must appoint some person to execute the trust who shall on giving bond with sureties, as required of an assignee, have all the powers of the assignee first appointed, and be sub- ject to all of the duties imposed by law. If any bond or surety is found to be insufficient, or on complaint before the court or judge, it shall be made to appear that any assignee is guilty of wasting or misapplying the trust estate, such court or judge may require additional secu- rity, may remove the assignee and appoint another in his place, and such person so appointed on giving bond shall execute such duties and may demand and sue for all the estate in the hands of the person removed, and recover the amount and value of all moneys and property or estate wasted and misapplied from such person and his sureties. 75 Any judge of the district court in vacation has power under this chapter to issue citations and attachments, order the sale of personal or real property, and to approve the sales and deeds thereof. 76 7 Code, Sec. 3085. 75 Code, Sec. 3086; Drain v. Mick- 74 in re Cadwells Bk., 89-533. el, 8-438. TO Code, Sec. 3087. CHAPTEE LIX. OP THE WRIT OF CBRTIORARL Sec. 945. When the action will lie. 946. When the action will not lie. 947. Of parties to the action. 948. What court may grant the writ. 949. Of the proceedings. 950. Of the petition for the writ, and of notice. 951. Of the writ, and of service and return. 952. Of the hearing. 953. Of limitation of the action, etc. Section 945. When the action will lie. Certiorari is defined as a writ issued from a superior court directed to one of inferior jurisdiction commanding the latter to certify and return to the former the record in the par- ticular case. 1 It is granted whenever especially author- ized by law, and especially in all cases when an inferior tribunal, board or officer exercising judicial functions is alleged to have exceeded its proper jurisdiction, or is otherwise acting illegally, when, in the judgment of the court in which the writ is sought, there is no other plain, speedy and adequate remedy. 2 When the proceedings of the inferior court, board or tribunal are irregular and no plain, speedy and adequate remedy at law is provided by appeal, certiorari will lie. 3 So when the trial court 1 Bouv. Law Die., 14th Ed., pg. Court, 84-167; Ind. Dist of Ot- 251. tumwa v. Taylor, 69 N. W., 1009. 2 Code, Sec. 4154; Edgar v. Greer, s The M. & M. R. Co. v. Ros- 14-211; Royce v. Jenney, 50-676; seau, 8-373; Davis County v. Horn, Smith v. Powell, 55-215; Coburn v. 4 G - Greene, 94; Dubuque v. Reb- Mahaska County, 4 G. Greene, 242; a n > l ^l Rockwell v Bowers, . TO. . . 88-88; Dunham v. Pox, 69 N. W., College of Physicians and Sur- 436; ' Rockafellow v . ' Board of geons v. Guilbert, 69 N. W., 453; Equalization, 77-493; Hamman v. Abney v. Clark, 87-727; Currier v. Van Wagenen, 62 N. W., 795; Cal- Mueller, 79-316; State v. District lanan v. Lewis, 79-452. 175 176 THE WRIT OF CERTIORARI. [ 945. exceeds its jurisdiction in acting upon a procedendo from the supreme court, its proceedings may be corrected by certiorari. 4 And orders punishing for contempt can only be taken to a higher court by certiorari. 5 The writ may be granted to test the legality of the action of township trustees in calling an election for the purpose of voting on the question of a tax to aid in the construction of a railroad. 6 So also to determine the jurisdiction of the board of supervisors to remove a county seat. 7 And the action of the board of supervisors in the establishment of a road may be reviewed by certiorari when it is shown that they exceeded their jurisdiction, or acted illegally. 8 The writ may issue when the board of directors of a dis- trict township direct their secretary not to certify for collection a tax voted by the electors of the district 9 And it lies when a board of equalization exceeds its powers by raising an individual assessment. 10 When an assessor fails to make on his books the corrections ordered by the township board of equalization, and such books have passed beyond his control, an action of certiorari will lie for their correction. 11 It lies to review the action of a city council in improperly vacating streets, 12 and to test the legality of the action of such a council in condemn- ing land for a street. 13 And to question the action of township trustees in consolidating road districts. 14 And where a judge, in vacation and without notice to the other party, changes the conditions of a decree of di- vorce. 15 And where a court in an equitable action to redeem from a tax deed entertained a motion for a new trial after the cause was decided, and without notice to 4 Edgar v. Greer, 14-211. 10 Royce v. Jenney, 50-676; Polk s The First Cong. Church, etc. v. County v. Des Moines, 70-351; City of Muscatine, 2-69; Code, Sec. Rockafellow v. Board of Equaliza- 4468; Dunham v. State, 6-245; tion, 77-493. Henry v. Ellis, 49-205; Currier v. " Keck v. The Board of Super- Mueller, 79-316. visors, 37-547. e Jordan v. Hayne, 36-9. 12 Stubenraugh v. Neyenesch, 54- i Bennett v. Hetherington, 41- 567. 142; Herrick v. Carpenter, 54-340. ia Rockwell v. Bowers, 88-88. a McCollister v. Shuey, 24-362; i* Dunham v. Fox, 69 N. W., 436. McCrory v. Griswold, 7-248; Mof- is Hamman v. Van Wagenen, 62 fitt v. Brainard, 92-122. N. W., 795. Smith v. Powell, 55-215. 946.] THE WRIT OF CERTIOEARI. 177 the opposite party. 16 And to review the proceedings of a board of supervisors whereby a taxpayer's taxes are wrongfully increased. 17 And so in this proceeding a tax- payer having no greater interest than any other taxpayer may question the action of the city council in remitting taxes assessed. 18 And a resident of the county appear- ing before the board of supervisors and objecting to the granting of a permit to sell intoxicating liquors may have the proceedings of the board reviewed by certiorari. 19 Certiorari will lie to correct an unwarranted change of a court record, 20 and it lies when a tax is voted by a town- ship to aid in the construction of a county bridge and the board of supervisors have not first determined the cost. 21 And under certain peculiar facts it was held to lie. 22 946. When the action will not lie. It will not lie if a plain, speedy and adequate remedy is afforded at law by appeal or otherwise, nor when the party fails to appeal in time, 23 nor will it lie against a court of pro- bate for refusing to correct a mistake in the settlement of an administrator's account, as the remedy is by ap- peal. 24 Nor will it lie generally when an appeal can be taken. 25 It will not lie to review the question of dam- ages for land taken for a highway. 26 Nor does it lie when the district court did not exceed its jurisdiction in enter- taining an action on a school order against several inde- pendent districts into which the district issuing the order had been subsequently divided. 27 And when the is Callanan v. Lewis, 79-452. v. Swafford, 5-552; Spray v.Thomp- 17 Goetzman v. Whitaker, 81- son, 9-40; Davis County v. Horn, 4 527. G. Greene, 94; Sunberg v. The Dist. is Collins v. Davis, 57-256. Ot, etc., 61-597; Flagg v. Parker, is Darling v. Boesch, 67-702, and 11-18; State v. Wilson, 12-424; see Welch v. Board of Supervisors, Ransom v. Cummins, 66-137; 23-199; Smith v. Yoram, 37-89; State v. Schmidtz, 65-556; Ind. Iowa News Co. v. Harris, 62-501. School Dist. v. Dist. Ct, 48-182; 20 Code, Sec. 4154; Hawkeye Ins. Brockman v. Creston, 79-587. Co. v. Duffee, 67-175. 24 O'Hare v. Hempstead, etc., 21- 21 Retz v. Tannehill, 69-476. 33. 22 Rowley v. Baugh, 33-201; State 25 Spray v. Thompson, 9-40. v. Fidelity & Casualty Co., 77-648. 26 McCrory v. Griswold, 7-248. 23 McCrory v. Griswold, 7-248; 27 The Ind. Dist. of Asbury v. Meyers v. Simms, 4-500; McCune The Dist. Court, etc., 48-182. 178 THE WBIT OF CERTIORARI. [ 947. act sought to be reviewed is of a legislative or discre- tionary, rather than of a judicial character, the action will not lie. 28 Questions of fact can not be reviewed in this manner. 29 Nor can a party thus review some erro- neous ruling of an inferior tribunal. 30 The finding of a board of supervisors on questions of fact arising out of applications to sell intoxicating liquors can not be re- viewed in this manner. 31 It will not lie to review the action of a city board of equalization in reducing the assessment of the property of the city water works com- pany. 32 And where the question sought to be reviewed is only the amount of damages or the failure to make an award on the proper day, it will not lie. 33 947. Of parties to the action. One who has no specific right which is violated by a city ordinance, can not contest its validity by certiorari proceeding. 34 But it is held that one taxpayer may thus have reviewed the action of the city council in remitting taxes assessed against another taxpayer, although such plaintiff has no greater interest in the matter than any other tax- payer. 35 And a taxpayer may maintain the proceeding to review the action of the board of supervisors whereby his taxes are increased. 36 And when the remedy is sought for the purpose of correcting proceedings to assess damages resulting from the establishment of a road, several owners of distinct pieces of land can not join as plaintiffs. 37 So when taxes have been levied in different townships in aid of a railroad, the levy in each township must be treated as distinct, and taxpayers of different townships can not join as plaintiffs in this action to test the validity of such taxes. 38 The officer against whom the writ issues should be made a defend- 28 iske v. City of Newton, 54- 32 p o lk County v. City of Des 586; Smith v. Board of Supervis- Moines, 70-351. ors, 30-531; Iowa Eclectic Med. 33 Cedar Rapids, I. F. & N. W. Coll. Assn. v. Schrader, 87-659. R. Co. v. Whelan, 64-694. 2Tiedt v. Oarstenson, 61-334; s* i s ke v. City of Newton, 54- Hildreth v. Crawford, 65-339; Bar- 586. ling v. Boesch, 67-702. as Collins v. Davis, 57-256. so O'Hare v. Hempstead, 21-33. as Goetzman v. Whitakar, 81-527. si Darling v. Boesch, 67-702; see ST Chambers v. Lewis, 9-583. Forbes v. Delashmutt, 68-166. ss Woodward v. Gibbs, 61-398. 948, 949.] THE WKIT OF CEBTIORABI. 179 ant, naming him; it is not sufficient to merely state his official title. 39 Under the law authorizing boards of su- pervisors to issue permits to sell intoxicating liquors, any citizen if a party may have its action reviewed by certio- rari. 49 But it will not lie at the instance of one in no way affected by the proceedings in which the writ is sought. 41 But in a proceeding to review the action of a board of supervisors in assessing the costs of construct- ing a levee upon adjoining land, different property own- ers, whose property is subject to the assessment, may join as plaintiffs. 42 948. What court may grant the writ. The writ may be granted by the district court, or by the judge thereof. But if the writ is to be directed to such court, or judge, or to the superior court or its judge, then it must be granted by the supreme court, or by a judge thereof, and must command the defendant therein to cer- tify fully to the court issuing the writ, at a time and place specified therein, a transcript of the records and proceed- ings, as well as the facts in the case, describing or refer- ring to them, or any of them, with convenient certainty, and also make due return of the writ, and when allowed by a court it must be issued by the clerk thereof and under its seal. 43 Under the revision of 1860 the circuit court did not have jurisdiction in certiorari cases. 44 But this was afterward conferred on it. 45 949. Of the proceedings. The action must be prosecuted by ordinary proceedings so far as applicable, and an appeal lies from the judgment of the court to the supreme court as in other ordinary actions, and the rec- ord is to be prepared in the same manner, 46 and the find- ings of the court have the same presumptions in their favor. 47 Under the revision it was a special proceeding. 48 sa Keck v. Board of Supervisors, "Thompson v. Reed, 29-117- 37-547; Chambers v. Lewis, 9-583. Hunt v Free 29 156 .reene, 94 Code, Sec. 4161. 42 Richman v. Board, etc., 70-627. 47 Remey v. Board of Equaliza- "Code, Sec. 4155; State v. Dis- tion, 80-470. trict Court, 84-167. *s Revision, Sees. 2606, 2607; 180 THE WRIT OF CERTIOKABI. [ 950. 950. Of the petition for the writ and of notice. The petition for the writ must state facts constituting a case wherein the writ may issue, and must be verified by affidavit; and the court, or judge, before issuing the writ, may require notice of the application to be given the adverse party, or may grant the writ without notice. If a stay of proceedings is sought the writ can only be granted upon reasonable notice 49 of the time, place, and court, or judge before whom the application will be made, which must be fixed by the court or judge to whom the application is presented, who must require a bond and fix the penalty and conditions thereof; the sureties may be approved by the court or judge granting, or the clerk issuing, the writ, and which bond must be filed with the clerk, 50 and when proceedings are had under section 4156 of the code the remedy is full and complete, and the proceedings of the inferior tribunal may be stayed when the writ is applied for. 51 The petition for the writ may be in the following form: FORM OF PETITION FOR WRIT OF CERTIORARL Title, Venue, The plaintiff states: That the above named defendants are members of the board of supervisors of county, Iowa. That said board has exceeded its jurisdiction in this, that on the day of , 18 , at the session an order was made by said board establishing a certain county road as follows (here describe road as in order). That said road established as aforesaid passes over and across plaintiffs' land as fol- lows, viz.: (describe the premises and the location of the road over them). That no notice whatever was given of the time when a pe- tition for the establishment of said road would be presented; that no viewer was appointed to examine and report on said proposed road (here state any other illegalities complained of). Plaintiff further states that said board has ordered that said road b~e opened and worked (or as the fact may be). That plaintiff has no plain, speedy and adequate remedy for the injury done him by said illegal act except by certiorari. Wherefore he prays that a writ of certiorari issue from this court commanding Thompson v. Reed, 29-118; Ains- o Code, Sees. 4156, 4157. worth v. House. 31-504. si Stubenraugh v. Neyenesch 54- Iske v. City of Newton, 54-586. 571. 951.] THE WEIT OT CEBTIOBABI. 181 the said defendants herein to certify fully to this court a transcript of the records and proceedings in reference to the establishment of said road, with all the facts relating to the same, and that said proceedings may be annulled, set aside and held for naught, and that he have judgment for costs. , attorney for plaintiff. (Add verification.) The notice of the application may be in the following form: FORM OF NOTICE OF APPLICATION FOR WRIT. Title, | Venue, J You are hereby notified that will make application to (name of court or judge), at o'clock A. M., on the day of , 18 , at , in county, Iowa, for a writ of certiorari to remove into said court the records and proceedings in the above en- titled cause (here set out the proceedings sought to be removed), at which time and place you can attend, if you desire. , attorney for plaintiff. 951. Of the writ, and of service and return. The writ is issued by the clerk, under the seal of the court, and may be in the following form: FORM OF WRIT OF CERTIORARI. To (names of all defendants, as in petition), greeting: Whereas, on the petition of , it has been made to appear to the (name of court or judge) that you have exceeded your jurisdiction as the (board of supervisors, or as the case may be) of county, Iowa, and are proceeding illegally in the matter of the establishment of (a road or other proceeding, as the case may be). You are, there- fore, hereby commanded that you certify and return fully to our said court, on the day of , 18 , a transcript of the records and proceedings, as well as the facts in the case (describing them, or any of them, as the case may be, with convenient certainty) of the (name and describe the case), as fully as the same are now before you; and have you then and there this writ. Witness , clerk of said court, with the seal thereof hereto affixed, this day of , 18 . [Seal.] , clerk, etc. The writ must be served and proof of service made, in the same manner as an original notice in an action, ex- cept that the original must be left with the defendant, 182 THE WRIT OF CEBTIORABI. [ 952. and the return or proof of service made upon a copy. 52 And if the return to the writ is defective the court may order a further return to be made, and may compel obedi- ence to the writ and to such further order by attachment, if necessary. 53 The appearance of a party to the writ cures any defect in the writ or the service of it. 54 The defendant should certify to the court issuing the writ a full and perfect transcript of the record and proceedings in the case. . 952. Of the hearing. When a full return has been made the court must proceed to hear the parties, or such of them as may attend for that purpose, on the rec- ords, proceedings and facts as certified, and such other testimony, oral or written, as either party may introduce pertinent to the issue, and may give judgment affirming or annulling the proceedings in whole or in part, or, in its discretion, correcting the same and prescribing the manner in which the defendant shall further proceed. 55 And though a writ be defective in not ordering the facts to be certified, yet, if they are in fact certified, a motion to quash the writ for the defect will not lie. 56 Under the revision it was held that trial in this pro- ceeding, after the writ had been returned, must be had on the record alone and that evidence aliunde was not admissible. 57 Under the law now all facts relating to the matter, whether of record or not, may be certified and oral evidence introduced on the hearing. 58 But the court will not consider errors or irregularities relating to, or dependent on facts, not stated in the petition, nor will allegations without a return to sustain them be ground for interference. 59 The supreme court may, in this action, modify the judgment of the court below rendered in a proceeding for contempt. 60 And in a proceeding in cer- 52 Code, Sec. 4158. 57 Smith v. Board of Supervisors, 03 Code, Sec. 4159. 30-531; Jordan v. Hayne, 36-9. oiRemey v. Board of Bqualiza- os Code, Sec. 4160; Tiedt v. Cars- tion, 80-470. tensen, 61-334. OB Code, Sec. 4160; McKinney v. oa Everett v. The C., R. & M. R. Baker, 69 N. W., 683. Ry. Co., 28-417; Jordan v. Hayne, 56 Richman v. Board, 70-627. 36-9, and 15. o State v. Myers, 44-580. 953.] THE WKIT OF CEKTIOEAEI. 183 tiorari as to the legality of the action of the board of supervisors in establishing a road, notice of appeal can not be served on the county auditor. 61 As to the sufficiency of the return in particular cases. 63 It is held that parties may waive the writ and submit themselves to the jurisdiction of the court. 63 The audit- or's cerificate touching the receipt of certain evidence by the board of supervisors will not overturn its action. 64 The supreme court can not inquire whether the evidence before the lower court justified the order and thus review its decision. 65 Judgment on the bond provided in this proceeding can not be summarily entered. 66 953. Of limitation of the action, etc, No writ can be granted after twelve months have elapsed from the time the inferior court, tribunal, board or officer has, as alleged, exceeded its proper jurisdiction, or has other- wise acted illegally. 67 But a writ of certiorari to the board of supervisors directing them to certify up a tran- script of their proceedings upon the question of the re- moval of a county seat is not barred until twelve months after the adoption of the order submitting the question to a vote. 68 When a petition for certiorari was filed with due diligence, but the writ was delayed on account of the disqualification of the judge to take cognizance of the case, it was held the plaintiffs did not lose their rights by reason of the delay. 69 If issued in time the writ is not required to be returned within the twelve months. 70 61 Polk v. Foster, 71-26. er Code, Sec. 4162; Jamison v. 62 Stone v. Miller, 60-243; Schroe- The Board, etc., 47-388; Shepard der v. Carey, 11-555. v. Supervisors, 72-258. ea Groves v. Richmond, 56-69. 68 Jamison v. The Board, etc., 6* Woolsey v. Board, etc., 32-130. 47-388. es Wise v. Chancy, 67-73. 69 Bush v. Dubuque, 69-233. ee Smith v. Bissell, 2 G. Greene, TO Remey v. Board of Equaliza- 379. tion, 80-470. CHAPTER OF CHATTEL MORTGAGES. Sec. 954. Of mortgages on after-acquired property. 955. Of mortgages on growing crops and crops to be grown. 956. Of mortgages of book accounts. 957. Description of the property other than book accounts. 958. Of the effect of retention of possession by the mortgagor and of sale by him of the property. 959. Of the effect of agreements not to record. 960. Of questions of priority over landlord's liens. 961. Of priority of the lien generally. 962. Of mortgages between husband and wife. 963. When an instrument is a chattel mortgage and when an as- signment for the benefit of creditors. 964. Of agreements between mortgagor and mortgagee regarding the time of sale. 965. Of second mortgages. 966. Of protection to diligent creditors. 967. Of action to recover property mortgaged Actions at law. 968. Of the mortgagor's interest in the property before sale. 969. Of the mortgagor's interest after sale. 970. Of the interest of the mortgagee in the property. 971. Of equitable mortgages. 972. When Valid against existing creditors, etc. 973. Of waiver of the lien and of estoppel. 974. Of the enforcement of foreign mortgages. 975. Of foreclosure by notice and sale. 976. Of the notice in such cases. 977. Of service of the notice. 978. Of parties to the proceedings. 979. Of the sale and of attorneys' fees. 980. Perpetuating evidence of the sale, etc. 981. Of the validity of the sale. 982. Of the power of sale. 983. Of the remedy, costs, etc. 984. Of injunction and transfer to the district court 985. Of proceedings in the district court. 986. Relating to levies on mortgaged personal property. 987. Of the sale of chattel mortgage property which has been pledged as collateral. 184 954, 955.] CHATTEL MOKTGAGES. 185 Section 954. Of mortgages on after-acquired prop- erty. 1 The law is now well settled that one may mort- gage property to be acquired in the future. 2 Especially is this true where the property is in existence at the time the mortgage is executed. 3 Where a mortgage on a stock of goods provides for a lien on the goods which may be pur- chased and added to the stock, it is good. 4 But a mort- gage will not be held to cover after-acquired goods unless it is expressly provided for in the mortgage. 5 955. Of mortgages on growing crops and crops to be grown. Where a mortgage, after describing cer- tain property, included "all crops to be grown or raised" by the mortgagor in a certain year, on land described therein, it was held that it was good as against a creditor of the mortgagor, and that it attached to the property when it came into existence, and that the record of the mortgage imparted notice. 6 But a mortgage on crops to be grown or planted, in order to be regarded as valid against third parties, must state the year or term in which they are to be grown. 7 But a mortgage on crops "grow- ing" is good. 8 If the owner of land executes a mortgage on crops afterwards to be grown, and thereafter, and be- fore planting the crop lets the land to a tenant who puts in a crop, the- mortgage by the lessor will not attach to the crop planted by the lessee. 9 The landlord's share of crops to be grown under a lease will be bound by a chattel mort- gage from the time such share is set apart, and such a iAs to mortgages on the in- B Philips v. Both, 58-499; Lormer crease of stock see Thompson v. v. Allyn, 64-725; McArthur v. Anderson, 63 N. W., 355. Garman, 71-34; Iowa State Nat'l 2 Scharfenburg v. Bishop, 35-60; Bk. v. Taylor, 67 N. W., 677. Fejavary v. Broesch, 52-88; Ste- o Wheeler v. Becker, 68-723; see phen v. Pence, 56-257; Beall v. Muir v. Blake, 57-662; Wright v. White, 94 U. S., 382; Arques v. Dickey Co., 83-332. Wasson, 51 Cal., 620; Hughes v. 7 Pennington v. Jones, 57-37; Wheeler, 66-641; Brown v. Allen, Muir v. Blake, 57-662; Hayes v. 35-306; Holley v. Brown, 14 Conn., Wilcox, 61-732; Crary v. Currier, 255; Abbott v. Goodwin, 20 Me., 62-535; Van Patten v. Leonard, 55- 408; Pierce v. Emory, 32 N. H., 520; Stephens v. Pence, 56-257; 484, and see Dunham v. Isett, 15- Rowley v. Bartholomew, 37-374; 284, and cases cited; Thompson v. Eggert v. White, 59-464. Anderson, 63 N. W., 355. s Luce v. Morehead, 73-498. s Hushes v. Wheeler, 66-641. 9 Knaebel v. Wilson, 92-536. * Philips v. Both, 58-499. 186 CHATTEL MOBTGAGES. [ 956, 957. mortgage will be prior to the claims of an attaching creditor who garnishes the tenant after the execution of the mortgage. 10 956. Of mortgages of book accounts. Book ac- counts may be mortgaged. 11 But such a mortgage which fails to show the county or state in which the accounts are to be earned, or the person against whom they might accrue will not create a lien on unearned accounts. 12 So a mortgage on "our accounts" is not good as against third parties without notice. 13 Nor is one which describes the accounts as "book accounts" or "book accounts for goods sold." 14 But a description of "all books of account and accounts and notes contracted and to be contracted from the sale of merchandise" was held good. 15 And while a description in a chattel mortgage of notes and book ac- counts may be insufficient as to a third person without notice, it may be good as between the parties thereto, and in such a case if the mortgagee, before being served with a notice of garnishment, has taken possession of the property and caused it to be sold and has bid it in the defective description is cured as against the party gar- nisheeing. 16 957. Description of the property other than book accounts. The property sought to be covered by the mort- gage should be as accurately and specifically described as its nature will permit, and to defeat a subsequent sale of chattels, the description in the mortgage must be so spe- cific as to enable third persons, who have examined the record and made such inquiries as the instrument itself suggests, to identify the property covered by the mort- gage. 17 The sufficiency of the description of property in 10 Riddle v. Dow, 66 N. W., 1066. is Kelley v. Andrews, 71 N. W., 11 Sandwich Mfg. Co. v. Robin- 251. son, 83-567; Davis v. Pitcher, 65 N. IT Winter v. Landphere, 45-73; W./1005; Lawrence v. McKenzie, Smith v. McLean, 24-322; Rhuta- 88-432. sel v. Stephens, 68-627; Wells v. 12 Sandwich Mfg. Co. v. Robin- Willcox, 68-708; Wheeler v. Beck- son, 83-567. er, 68-723; Hayes v. Wilcox, 61-732; is Sperry v. Clark, 76-503. Peterson v. Foil, 67-402 ; Yount v. i* Laurence v. McKenzie, 88-432. Harvey, 55-421; Pennington v. is Davis v. Pitcher, 65 N. W., Jones, 57-37; Eggert v. White, 59- 1005 464; Broch v. Barr, 70-399; Gil- 958. ] CHATTEL MORTGAGES. 187 a chattel mortgage has been frequently passed upon by our supreme court; an extended review of these cases is not necessary. In addition to those heretofore referred to, the following cases will be found to present the law on this subject. 18 958. Of the effect of retention, of possession by the mortgagor and of sale by him of the property. A chattel mortgage providing that the mortgagor may re- tain possession and dispose of the property by sale, is not fraudulent 19 In case of a foreign mortgage retention by a mortgagor of possession beyond the time stipulated in the mortgage may render it fraudulent and void as to sub- sequent purchasers, if such retention is with the consent of the mortgagee. 20 A provision in a mortgage for the mortgagor to retain possession of the goods and sell them, receiving the money therefor, and after paying his own expenses and the expenses of sale to pay the proceeds to the bankers of the creditor does not render it void. 21 But facts and circumstances showing that the retention is for the benefit of the mortgagor alone, will justify a jury in finding it not bona fide. 22 If there is no actual intent to defraud, a chattel mortgage is not rendered per se fraud- ulent by an agreement of the parties that the mortgagor Christ v. McGee, 67 N. W., 392; bridge, 74-550; Norris v. Hix, 74- Andregg v. Brunskill, 87-351; 524; Luce v. Moorehead, 73-498; Sandwich Mfg. Co. v. Robinson, Towslee v. Russell, 76-525; Barrett 83-567; Taylor v. Gilbert, 92-587; v. Finch, 76-553; Cook v. Gilchrist, King v. Howell, 62 N. W., 738; 82-277; Kern v. Wilson, 82-407; City Bk. v. Ratkey, 79-215; Shell- Chapin v. Garretson, 85-377; Myers hammer v. Jones, 87-520; Citizens' v. Snyder, 64 N. W., 771; John- Nat'l Bk. v. Johnson, 79-290; Ken- ston v. Rider, 84-50; Kneller v. yon v. Tramel, 71-693; Iowa State Kneller, 86-417; Funk v. Mer. Nat'l Bk. v. Taylor, 67 N. W., 677; Trust Co., 89-264. Haller v. Parrott, 82-42; Piano i Torbet v. Hayden, 11-435; Mfg. Co. v. Griffith, 75-102; Me- Kuhn v. Graves, 9-303; Campbell Garry & Brown v. McDonnell, 82- v. Leonard, 11-489; Hughes v. 732; Haller v. Parrott, 82-42; Ma- Cory, 20-399; Jessup v. Bridge, 11- girl v. Magirl, 89-342. 572; Frnmme v. Jones, 13-474; is Caldwell v. Trowbridge, 68- Smith v. McLean, 24-322; Jordan 150; Ivins v. Hines, 45-73; Everett v. Lendrum, 55-478. v. Brown, 64-420; Barr v. Cannon, 20 Simms v. McKee, 25-341. 69-20; Ormsby v. Nolan, 69-130; 21 Adler v. Clafflin, 17-89; Kenyon v. Tramel, 71-693; Warner Hughes v. Cory, 20-399; Meyer v. v. Wilson, 73-719; State Bk. v. Gage, 65-606; Starker v. McCosh Felt, 68 N. W., 818; King v. How- Iron & Steel Co., 62 N. W., 848. ell, 62 N. W., 738; Piano Mfg. Co. 22 Wilhelmi v. Leonard, 13-330. v. Griffith, 75-102; Clapp v. Trow- 188 CHATTEL MORTGAGES. [ 959. might retain possession and dispose of the property in the ordinary course of trade. 23 And the reservation in a mort- gage of power to sell in the ordinary course of trade does not invalidate it. 24 Nor will the fact that a mortgage does not require the mortgagor to account for the proceeds of sales of the property affect its validity, 25 and the retain- ing possession by the mortgagor and reserving the right to sell the property in the ordinary course of trade apply- ing the proceeds to his own use will not render the mort- gage fraudulent 26 A provision in a mortgage that the mortgagee will not take possession until default, unless necessary for protection against other creditors, is not per se fraudulent. 27 So a mortgage given to trustees upon a stock of goods to secure certain creditors, is not void because it provides for an extension of the time of the indebtedness, and that the mortgagor shall have the right to retain possession and carry on the business in the usual retail way for a certain time, paying the costs and expenses of running the busi- ness, and keeping up the stock to what it was when the mortgage was given. 28 959. Of the effect of agreements not to record. If a mortgage is witheld from record for the purpose of enabling the mortgagor to obtain credit it is invalid as against creditors who became such while the mortgage was thus withheld. 29 But a mere failure to record a mortgage will not render it fraudulent as to subsequent mortgagees in the absence of any showing that it was withheld from record by virtue of an agreement between the parties or at the request of the mortgagor. 30 23 Sperry v. Etheridge, 63-543; 27 Gilmore v. Kilpatrick-Kock Meyer v. Evans, 66-179. Dry Goods Co., 70 N. W., 175. 2* Clark v. Hyman, 55-14; as Hughes v. Cory, 20-399; Jaf- Hughes v. Cory, 20-398. fery v. Greenbaum, 64-492. 25 Clark v. Hyman, 55-14. 29 Goll & Frank Co. v. Miller, 26 Meyer v. Evans, 66-179; see 87-426; Snouffer v. Kinley, 64 N. Hughes v. Cory, 20-399; Clark v. W., 770. Hyman, 55-14; Sperry v. Ethe- so Mull v. Dooley, 89-312; H. E. ridge, 63-543; Jaffery v. Green- Spencer Co. v. Papach, 70 N. W., baum, 64-492; Meyer v. Gage, 65- 748; In re Bloomfield Woolen 606. Mills Co., 70 N. W., 115. 960, 961.] CHATTEL MORTGAGES. 189 960. Of questions of priority over landlords' liens. A lease giving a landlord a mortgage on the ten- ant's goods and not recorded, is not valid as against a mortgage subsequently executed on the same goods and recorded, where the holder has no notice of the prior mort- gage. 31 The lien created by a chattel mortgage upon goods used in a hotel before the beginning of a lease of the building is superior to the landlord's lien for rent. 32 Where there was a prior unrecorded mortgage upon goods which were claimed under a landlord's lien, and after the landlord's lien had attached the note secured by the mort- gage was sold and transferred to a third party, but no as- signment of the mortgage recorded, and the mortgagee fraudulently entered satisfaction of the mortgage on the margin of the record, and after this by an agreement be- tween the landlord and the lessees a third party was sub- stituted for one of the original lessees, no new lease being made, these transactions did not have the effect to make the landlord's lien superior to the lien of the mortgage. 33 The lessor of a hotel has no lien for rent on property owned by the lessee's wife, though it be used in the hotel during the term of the lease, and where she mortgaged such property to secure a debt, and the mortgage was re- corded, and the lessee afterward sold his lease to a party, and the wife sold the mortgaged property to the same party subject to the mortgage, and he took possession un- der such purchase, it was held that the lessor had a lien on the property to secure the rent accruing after the pur- chaser took possession, but that such lien was inferior to the mortgage which the original lessee's wife had placed on the property. 34 961. Of priority of the lien generally. When an action of replevin was dismissed by plaintiffs before issue joined, and an order entered for the return of the prop- erty, which was not complied with by plaintiffs, it was held that a chattel mortgage executed by them while in si Pitkins v. Fletcher, 47-53. si Perry v. Waggoner, 68-403; 32 Rand v. Barrett, 66-731. see Jarchow v. Pickens, 51-381. as Rand v. Barrett, 66-731. 190 CHATTEL MORTGAGES. [ 961. possession of the property, and before the issuance of the writ of restitution, taken by the mortgagee in good faith, was valid, the ownership and right to possession of the mortgagor being afterward established. 35 A writ of at- tachment issued out of the United States court directing the marshal to attach the property of "A" is no defense in an action against him by "A's" mortgagee for convert- ing chattels covered by the mortgage. 36 Where a debtor agreed to execute to one of liis creditors a mortgage on stock, but the animals were not specifically pointed out and agreed upon, and the debtor afterward executed a mortgage upon cattle and filed it for record, and the mort- gagee had notice of it, but before the mortgage came into his possession and on the same day, a creditor levied an attachment on the property, the attachment was held to be a first lien thereon. 37 Where the mortgagor sold the property, with the consent of the mortgagee, the pur- chaser agreeing to pay part of the mortgage debt, and agreeing that the lien should continue, and the purchaser sold the property to one who had no knowledge of the agreement, and no actual notice of it, the lien of the mort- gage followed the property into the hands of the last pur- chaser. 38 An unrecorded chattel mortgage of a building erected on leased premises will not take priority over a mortgage on the landlord's interest in the premises when it appears that it was intended that the building should constitute a permanent improvement. 39 Where a payee of a note secured by chattel mortgage gave it to the maker and took a new one different in amount, and payable at a different date, without any agreement to show that it was to be secured by the mort- gage, he lost his right to the security as against the holder of other notes secured by the mortgage. 40 Where a mort- gagee, acting under a power of sale in a mortgage, sold the mortgaged property to a purchaser who bought it for B Case v. Woleben, 52-389. as Oswald v. Hayes, 42-104. Sperry v. Etheridge, 70-27. 9 Fletcher v. Kelly, 88-475. 37 Cobb v. Chase, 54-253; Day *o Wilhelml v. Leonard, 13-330 v. Griffith, 15-104. 961.] CHATTEL MORTGAGES. 191 the benefit of a co-mortgagee at about one-sixth of its actual value, the purchaser in such case did not acquire the title to the property, divested of the equity or right of redemption in the mortgagor, or junior mortgagee. 41 When a sale under execution is made of property mort- gaged, and before the levy the sheriff and the attorney for the judgment plaintiff knew of the mortgage, and the purchaser at the sale had knowledge of it before he paid the purchase money, he is not protected as a bona fide purchaser. 42 The owner of land in fee who leased it to the owner of a mill situated thereon, and who purchases the mill and lease, does not thereby extinguish the lien of an existing chattel mortgage on the mill. 43 When the mortgagor re- tains possession of the property, the mortgage, to be no- tice to third parties and take precedence over a subse- quent attachment, must be filed for record in the county where the holder of the" property resides, or the attach- ing creditors must have had notice of the mortgage. 44 Where one, prior to becoming insolvent, executed a chattel mortgage to secure a pre-existing debt and sub- sequently made an assignment for the benefit of credit- ors, the property so mortgaged passed to the assignee charged with and subject to the mortgage. 45 The interest retained by the mortgagor in property mortgaged when the mortgagee has the right at any time to take posses- sion, can not be levied on and sold under execution or at- tachment against the mortgagor, and one who secures a second mortgage thereon while such property is in the custody of the officer under such levy, will hold it or its proceeds against the attaching creditors. 46 i Alger v. Farley, 19-518. Carson & Rand L. Co. v. Bunker, 42 Cummings v. Tovey, 39-195; 83-751; Ordway v. Kittle, 83-752; Campbell v. Leonard, 11-489; Gor- Coleman v. Reel, 75-304; American don v. Harding, 33-550. Wheel Works v. Whinnery, 76- 43 Denham v. Sankey, 38-269. 400; Cole v. Green, 77-307; Luce v. 4* Code, Sec. 2906; Stewart v. Moorehead, 77-376; Citizens Nat'l Smith, 60-275; Allen v. McCalla, Bk. v. Johnson, 79-290; Piano Mfg. 25-464; Manny v. Woods, 33-265; Co. v. Griffith, 75-102. Hessler v. Wilson, 36-152; Kern v. 45 Meyer v. Evans, 66-179; see Wilson, 82-407; Hibbard v. Zenor, Sec. 934. 82-505; Cook v. Gilchrist, 82-277; 46 Wells v. Sabelowitz, 68-238. 192 CHATTEL MORTGAGES. [ 961. Where a husband made a chattel mortgage of a stock of goods to his wife and sent it to the recorder for record, all without her knowledge, and there was no evidence that it was to be delivered to her, or that it was for her use, it did* not constitute a delivery of the mortgage to her, and attachments levied upon the goods after the date of the mortgage were prior liens, even though she knew of the mortgage before the attachments were levied. 47 Where goods were in the hands of a party who was an unsatisfied pledgee of the mortgagor at the time when the mortgage was made, and when the property was seized thereunder, and he objected to such seizure and claimed to be the owner of the property but did not claim a lien upon it, his failure to assert his lien did not preclude him from recovering for the conversion of the property. 48 The assignee of a mortgagor may recover by action of detinue specific personal property from attaching creditors which is under mortgage by the debtor, and which mortgage is prior to both the assignment and the attachments. 49 Where mortgaged chattels have passed into the hands of the mortgagees, their possession is notice of their in- terest to subsequent attaching creditors, and in such case it is immaterial that the mortgage was not recorded. 50 To set aside a sale of mortgaged chattels made by the mortgagee at the instance of garnishing creditors of the mortgagor, fraud must be established, and mere inade- quacy of price alone is not sufficient to establish it. 51 Creditors of the mortgagor, who, subsequent to an agree- ment between the mortgagor knd the mortgagee with ref- erence to place of sale of the property, garnish the mort- gagee, are bound by such agreement and can not have it set aside in the absence of proof of collusion and fraud. 52 The mortgagor of mares, mortgaged before the colts were foaled, has, prior to the time they should be weaned, no interest in them subject to attachment. 53 One who in- 47 Wadsworth v. Barton, 68-599. Code, Sec. 4468; First Cong, ss State v. Meyers, 44-580; Jor- Ch. v. Muscatine, 2-69; Dunham v. dan v. Circuit Court. 69-177. State, 6-245; Henry v. Ellis, 49-205; aa Ex parte Holman, 28-88. Lindsay v. Clayton Dist. Court, 75- " Hogue v. Hayes, 53-337. 509; Currier v. Mueller, 79-316; State v. Dist. Court, S-1-1C7. 218 CONTEMPTS. [ 1002. bar to an indictment, but if the offender is indicted and convicted for the same offense, the court, in passing sen- tence, must take in consideration the punishment before inflicted. 60 Any officer authorized to punish for contempt is a court within the meaning of the law. 61 It is held that a judge may in vacation punish for con- tempt. 62 eo Code, Sec. 4469. a State v. Meyers, 44-580. ei Code, Sec. 4470. CHAPTER LXII. OF CHANGING THE NAMES OP PERSONS. Sec. 1003. Of power to change the names of persons. 1004. Of the petition. 1005. Of the order. 1006. When the change takes effect. 1007. Of the notice. Section 1003. Of power to change the names of persons. The district or superior court has power to change the names of persons, in the manner hereinafter stated. 1 1004, Of the petition. A person desiring to change his name must file his petition in the district or superior court of the proper county, verified by his oath, stating that he is a resident of the county, and has for one year then last past been an actual resident of the State. It must also give a description of his person, stating, as accurate- ly as possible, his age, height, the color of his hair and eyes, the place of his birth, and the names of his parents. 2 A petition for this purpose may be in the following form: FORM OF PETITION FOR CHANGE OF NAME. Title, Venue. To the district court of the State of Iowa, in and for county: Your petitioner represents that his name is ; that he is a resident of county, Iowa; that he has for one year last past been a bona fide resident of the State of Iowa; that his age is years, height, feet and inches; hair , and eyes ; that he was born in (here state the town or city, and country or State where born) ; that his parents were (here give the names and residence of parents) ; that he is desirous of, and files this petition for the purpose of having his name changed from to that of . (Signature of petitioner.) (Add usual verification.) i Code, Sec. 4471. 2 Code, Sec. 4472. 219 CHANGING NAMES OF PERSONS. [ 1005-6-7. 1005. Of the order. Upon the above petition the court will make an order of record, giving a description of the applicant, as set forth in his petition, the new name given, and fix the time at which the change shall take effect, which shall not be less than thirty days there- after, and directing in what newspaper of general circula- tion in the county notice of such change shall be pub- lished. 3 The order changing the name may be in the following form: FORM OF ORDER CHANGING NAME OF A PERSON. In the matter of the petition of for a change of name. Be it remembered that on this day of , 18 , the pe- tition of for a change of name came on for hearing before the court, and the court being satisfied that the statute in such cases made and provided has in all respects been complied with by the said , it is therefore ordered that the prayer of the said applicant, who is named in said petition as , and described as years of age, feet and inches in height, and hair and eyes , and that he was born in (town or city) in (here insert State or country where born), that his parents were (here give name and residence of parents), be granted; that the said applicant's name be changed from to , and that he shall hereafter be known in law and in fact by the name of from and after the - day O f > ig . And it is further ordered and directed that notice of this order and of the change of name of said applicant be published in (here insert name of newspaper) a newspaper of general circulation in county, for four consecutive weeks previous to the taking effect of the change of name hereby ordered. 1008. When the change takes effect. Previous to the time prescribed for the taking effect of such change of name, the applicant must cause notice thereof to be published for four consecutive weeks in the paper ordered by the court. 4 1007. Of the notice. The notice mentioned in the above section may be in the following form: FORM OF NOTICE OF CHANGE OF NAME. Notice is hereby given that on the day of , 18 , an order was made by the district court of county, Iowa, by which the name of a person described as being years of age (here Code, Sec. 4473. * Code, Sec. 4474. 1007.] CHANGING NAMES OF PERSONS. 221 insert same description as in petition and order) was changed from to that of - , and that said change will, by order of said court, take effect on and after the day of , 18. (Signature.) On the filing in the office of the clerk of said court of the ordinary proof of such publication, and on the clay fixed by the court in said order, the change of name will be complete. The proof of publication above mentioned must be pre- served by the clerk. 5 The clerk should make a complete record of all the proceedings in such cases, to the end that it may always appear that every step required by statute has been properly taken. A change in the name of a partnership does not have the effect to revoke or annul an agency conferred upon it, when the firm under the new name is composed of the same persons as that under the old one. 6 e Code, Sec. 4475. Billingsley v. Dawson, 27-210. CHAPTER. LXIIL OF DIVORCE, ANNULLING MARRIAGES AND OF ALIMONY. Sec. 1008. Of jurisdiction and trial. 1009. Of the grounds for a divorce generally. 1010. Of adultery. 1011. Of desertion. 1012. Of conviction for a felony. 1013. Of habitual drunkenness 1014. Of inhuman treatment. 1015. Of condonation and misconduct of the plaintiff. 1016. Of the petition. 1017. Of cross-petition, etc. 1018. Of temporary alimony. 1019. Of attachment and injunction. 1020. Of attorney's fees. 1021. Of the custody of children. 1022. Of allowance of permanent alimony without divorce. 1023. Of the power to grant permanent alimony. 1024. When an allowance of alimony is proper. 1025. Of allowing specific property. 1026. Of the lien of the judgment. 1027. Of setting aside the decree and of its modification, etc. 1028. Of the causes for annulling marriages. 1029. Of the petition, etc. 1030. Of the legitimacy of children, etc. Section 1008. Of the jurisdiction and trial. The district court in the county where either party resides, has jurisdiction of the subject-matter relating to granting divorces, annulling marriages and allowing alimony. 1 The action is not local but transitory, and the court being satisfied of the residence of the plaintiff may try the case regardless of the residence of the defendant. 2 But the residence required of the plaintiff is a legal, not merely an actual residence, 3 and a mere temporary so- 1 Code, Sec. 3171. s Hinds v. Hinds, 1-36. 2 Smith v. Smith, 4 G. Gr., 266. 222 1008.] DIVORCE, ANNULLING MARRIAGES, ETC. 223 journ for a season without the intention of making the place his domicile is not sufficient to constitute residence within the meaning of the statute. 4 A Utah divorce ob- tained without jurisdiction or where neither party re- sided within the Territory, is absolutely void. 5 In a pro- ceeding for a divorce the law recognizes the husband and wife as having separate domiciles, hence a divorce may be granted in an action brought in a county where either of them resides. 6 When an action for a divorce is brought in one State by the husband against the wife, who resides in another State, and jurisdiction is acquired by publication, the court may declare the status of the parties, and grant the decree, but can not make a valid decree as to the custody of the children, who are non- residents of the State where the divorce proceedings were had. 7 But if the children were within the jurisdic- tion of the court when the decree w T as granted, though granted in another State, it will be treated as conclusive and binding upon the courts of this State, when the right to the custody of such children is called in question in this State, until such decree is modified, reversed or set aside for cause shown to the jurisdiction rendering it 8 The legislature has no powder to grant divorces. 9 A di- vorce granted in the State of Nebraska in accordance with its laws and on notice by publication against a resi- dent of this State is valid. 10 A want of jurisdiction of a court to grant a divorce, owing to the non-residence of the plaintiff, can not afterward be interposed by such plaintiff as an" objection to the decree, when it appears that she authorized the cause to be prosecuted and re- ceived the money which was allowed as alimony. 11 It may be established by parol evidence that a decree of divorce granted in another State is void for want of jurisdiction under the laws of such State. 12 A supple- 4 Smith v. Smith, 4 G. Gr., 266; 9 Const. Art. 3, Sec. 27; see Lev- Whitcomb v. Whitcomb, 46-437; ins v. Sleator, 2 G. Gr., 604. see Rush v. Rush, 48-701. 10 Van Orsdal v. Van Orsdal, 67- s State v. Fleak, 54-429. 35. e Kline v. Kline, 57-386. " Ellis v. White, 61-644. 7 Kline v. Kline, 57-386. 12 Neff v. Beauchamp, 74-92. s Wakefield v. Ives, 35-238. 224: . DIVORCE, ANNULLING MARRIAGES, ETC. [ 1009-10. mental decree as to alimony in the court of another State under a decree of divorce previously rendered in that State will be recognized in this State. 13 The action must be prosecuted by equitable proceedings and no cause of action, except for alimony, can be joined with it, 14 and the action is triable de novo in the supreme court, 15 and the appearance term is the trial term. 16 Divorce cases must be tried in open court; they can not be tried by a referee, but the testimony may be taken by a commis- sioner and the cause tried in open court. 17 The verifica- tion of the petition is not jurisdictional, but the action must be prosecuted by the injured party in his personal capacity, and it cannot be instituted by a guardian of one of the parties. 18 A divorce can not be granted by consent of parties unless proper grounds are shown for a divorce. 19 1009. Of the grounds for a divorce generally. A divorce can only be granted for some of the causes stated in the statute. 20 Hence a divorce can not be granted for impotency, insanity or idiocy. 21 A decree of divorce is an adjudication of all causes for divorce existing at the time it is rendered. 22 The violation of an antenuptial contract is not a ground for a divorce. 23 1010. Of adultery. In order to establish adultery it is not necessary to prove the fact of the adultery, but it may be inferred from the circumstances. If the cir- cumstances, when all taken together, tend to establish the criminal disposition of the party charged with adul- tery and a like disposition of the particeps criminis and an opportunity to commit the act, it will ordinarily be sufficient to warrant the inference that the act was, in fact, committed, and especially so when the acts of the is Alderson v. Alderson, 84-198. is Code, Sec. 3781; Lyster v. Lys- n Code, Sec. 3430. ter, 1-130. is Sherwood v. Sherwood, 44-192. 20 Miller v. Miller, 43-325; York is Code, Sec. 3656. v. Ferner, 59-487; see McCraney v. IT Hobart v. Hobart, 45-501; McCraney, 5-232. Code, Sec. 3173. 21 Wertz v. Wertz, 43-534. is Mohler v. Shanks Estate, 93- 22 Rivers v. Rivers, 65-568. 273; see Van Duzer v. Van Duzer, 23 Owen v. Owen, 90-365. 65-625. 1011.] DIYOECE, ANNULLING MARKIAGES, ETC. 225 parties are inconsistent with any rational theory of in- nocence. 24 And when a wife deserts her husband with- out reasonable cause, and before she has been absent long enough to entitle him to a divorce, he commits adul- tery, she is entitled to a divorce and to alimony. 25 While, as a general rule, the adultery of plaintiff in an action for a divorce will bar her from procuring a divorce on the ground of a like crime committed by the defendant, yet where the marriage of plaintiff, which is claimed to be adulterous, was contracted in ignorance of the fact that the first husband, the defendant, was alive, and he had not in fact been heard from for many years, such second marriage was held not to defeat her action against the defendant for a divorce. 26 Adultery com- mitted after the marriage is one of the statutory grounds for a divorce. 27 1011. Of desertion. A divorce may be granted one party to the marriage when the other willfully deserts him or her, as the case may be, and absents himself with- out a reasonable cause, for two years. 28 And a reason- able cause is said to be such cause as would, prima facie, entitle the party so deserting to a divorce. 29 But where the separation was mutually agreed upon, neither party is entitled to a divorce on the ground of absence of the other, until such party offers to, and expresses a willing- ness to live with the other, and such offer must appear to be made in good faith. 30 And in an application for a divorce on the ground of desertion, the petition must state that such desertion was without reasonable cause. 3 ' For a discussion as to what will constitute desertion, reference is made to the cases cited. 32 2*Inskeep v. Inskeep, 5-204; 221; Taylor v. Taylor, 80-29; Names v. Names, 67-383; see Hag- Packard v. Packard, 90-765; Owen gard v. Haggard, 62-82; Aitchison v. Owen, 90-365. v. Aitchison, 68 N. W., 573; Pea- 20 Pierce v. Pierce, 33-238; see vey v. Peavey, 76-443; Carlisle v. Douglass v. Douglass, 31-421; Tay- Carlisle, 68 N. W., 681. lor v. Taylor, 80-29. 25 Dupont v. Dupont, 10-112. so Farber v. Farber, 64-362 2 Smith v. Smith, 64-682. si Pinkney v. Pinkney, 4 G. 27 Code, Sec. 3174. Greene, 324; Owen v. Owen, 90-365. 28 Code, Sec. 3174; Doolittle v. 32 Pilgrim v. Pilgrim, 57-370; Doolittle, 78-691; Day v. Day, 84- Lane v. Lane, 67-76; Atkinson v. Vol. II 15 226 DIVOECE, ANNULLING MARRIAGES, ETC. [ 1012-14. 1012. Of conviction for a felony. The statute makes the conviction for a felony after the marriage of one of the parties to the marriage contract a cause for a divorce. 33 But such conviction must be final, and a divorce will not be granted on this ground when there has been a conviction in the lower court, and an appeal therefrom is pending and undetermined ; 34 but where the action for a divorce was brought pending such appeal and a divorce granted, and the conviction was afterward affirmed by the supreme court, it was held another ac- tion for a divorce might be brought and the first action would not be a bar thereto. 35 1013. Of habitual drunkenness. So a divorce may be granted when, after marriage, one of the parties to the marriage contract becomes addicted to habitual drunkenness; 36 and to constitute one an habitual drunk- ard it is not necessary that the party be in that condition during business hours. 37 What constitutes an habitual drunkard, so as to entitle one to a divorce, has never been determined by our court. 38 1014. Of inhuman treatment. A divorce may be granted when either party to the marriage contract is guilty of such inhuman treatment as to endanger the life of the other. 39 The question is, considering the treat- ment in the past, is there reasonable ground to appre- hend danger to the life or health of the party. 40 And there may be inhuman treatment endangering life Atkinson, 67-364; Doolittle v. Doo- Aitchison, 68 N. W., 573; Van Du- little, 78-691; Day v. Day, 84-221; zer v. Van Duzer, 70-614; Doolittle Packard v. Packard, 90-765. v. Doolittle, 78-691; Douglass v. ss Code, Sec. 3174. Douglass, 81-258; Potter v. Potter, s*Vinsant v. Vinsant, 49-639; 75-211; McKee v. McKee, 77-464; Rivers v. Rivers, 60-378. Gilbertson v. Gilbertson, 78-755; 35 Rivers v. Rivers, 65-568. Edgerton v. Edgerton, 79-68; so Code, Sec. 3174. Evans v. Evans, 82-462; Tiffany v. 37 Wheeler v. Wheeler, 53-511. Tiffany, 84-122; Owen v. Owen, 90- ss Wheeler v. Wheeler, 53-511, 365; Coulthard v. Coulthard, 91- and cases cited; Lewis v. Lewis, 742; Ennis v. Ennis, 92-107; 75-200. Schlichtl v. Schlichtl, 88-210; Fel- so Code, Sec. 3174; Freerking v. ton v. Felton, 62 N. W., 677; Prath- Freerking, 19-34. er v. Prather, 68 N. W., 806; Beebe v. Beebe, 10-133; Knight Briggs v. Briggs, 71 N. W., 198; v. Knight, 31-451; Aitchison v. Hart v. Hart, 74-487. 1015.1 DIVORCE, ANNULLING MARRIAGES, ETC. though no physical injury is sustained, as when threats- to do injury or to take life are made, coupled with the- ability and intent so to do. 41 So, treatment calculated to affect the mind of a party so as to destroy her health, and ultimately endanger life, or which involve, by nat- ural consequences, a permanent, injurious and prejudi- cial effect on a party, is sufficient grounds for a divorce, 42 and so is persistent abuse in the presence of one's chil- dren, and in the presence of neighbors and others, by applying epithets imputing unchastity. 43 As to what has been held in particular cases sufficient evidence of inhuman treatment reference is made to the cases cited. 44 But inhuman treatment resulting from insanity is not ground for divorce. 45 But the facts showing inhuman treatment must be pleaded and a general allegation to that effect is not good. 46 But the facts as alleged need not be proved; it will be sufficient if from the evidence it appears that the treatment is inhuman. 47 A wife is not entitled to a divorce on the grounds of cruel treatment, endangering her life, although the husband admits that he struck her on one occasion, two years before they sep- arated, where he was generally industrious and kind to- his family, and their difficulties were largely due to her quarrelsome disposition and the evidence fails to show that her health was impaired or her life endangered by his conduct towards her. 48 1015. Of condonation and misconduct of the plaintiff. If the inhuman treatment was caused by the applicant's own misconduct, no divorce will be granted. 4 * And where the wife voluntarily has sexual intercourse with her husband after the commencement of suit for 41 Sackrider v. Sackrider, 60-397; Wertz v. Wertz, 43-534. 42 Caruthers v.Caruthers, 13-266; 46 Freerking v. Freerking, 19-34. Cole v. Cole, 23-433. 47 Cole v. Cole, 23-433. 43 Wheeler v. Wheeler, 53-511. *& Felton v. Felton, 62 N. W., 44Harnett v. Harnett, 55-45; 677. Platner v. Platner, 66-378; Sester- < Knight v. Knight, 31-451; see hen v. Sesterhen, 60-301; Rivers v. Marsh v. Marsh, 64-667; Edgerton. Rivers, 60-378; Whaley v. Whaley, v. Edgerton, 79-68. 68-647; Maben v. Maben, 72-658; and see No. 40 above. 228 DIVORCE, ANNULLING MARRIAGES, ETC. [ 1016. Divorce, ordinarily it will be a condonation of the act or .acts complained of. 50 But such is not the case where the intercourse was involuntary. 51 Nor will the fact that the wife, after beginning her action for a divorce, re- mained in the same house with her husband and did his housework, amount to condonation. 52 1016. Of the petition. The petition may be in the following form: FORM OF PETITION FOR A DIVORCE. Title, ) Venue. ) The plaintiff states: Par. 1. That she is now and has been for the last (more than a year) years past, a resident of the State of Iowa, and residing at -ra\ in/J^j^pvcounty, and that she has resided at said place continuously during all of said time (or if absent a part of the time state the entire length of her residence in the State, after deducting all absences from the State). Par. 2. That the residence of said plaintiff, as above stated, has been in good faith, and not for the purpose of obtaining a divorce only. Par. 3. That this application is made in good faith and for the purpose set forth herein. Par. 4. That plaintiff and defendant were married at (place) in (county and State) on the day of , 18 , and lived together as husband and wife until the day of , 18 . Par. 5. That during all the time plaintiff and defendant so lived together as husband and wife, this plaintiff at all times conducted her- self toward her said husband as a dutiful and loving wife. Par. 6. That on the - - day of , 18 , the defendant, in violation of his marriage vows, and without any fault of plaintiff, will- "" fully deserted this plaintiff-and has ever since absented himself from her without any reasonable or just cause therefor. Par. 7. That there was born to plaintiff and defendant, as the issue of said marriage, a son, named (here give his name), now - years of age, and who has resided with plaintiff ever since his birth. Par. 8. That plaintiff has no property in her own right, and no / means with which to prosecute this suit, and her only means of main- taining her said son and herself is by working out as a servant. Par. 9. That defendant is possessed of personal property, consist- l/ ing of (here describe it), worth dollars, and has real estate, un- incumbered, situated in county, Iowa, worth - dollars. 50 Harnett v. Harnett, 55-45; i Cochran v. Cochran, 35-477; Cochran v. Cochran, 35-477; Ses- Sesterhen v. Sesterhen, 60-301. terhen v. Sesterhen, 60-301; but 52 Harnett v. Harnett, 59-401. see Douglass v. Douglass, 81-258; Lewis v. Lewis, 75-200. 1017.] DIVORCE, ANNULLING MARRIAGES, ETC. 229 Wherefore plaintiff prays that she may be divorced from the de- fendant; that she may be awarded the custody of her said minor son (naming him); that she may be allowed the sum of dollars as temporary alimony, and on final tearing, the sum of dollars, as permanent alimony, out of her said husband's estate, and that she have judgment for said alimony, and that execution issue to make the same, and for such other and further relief as may be equitable in the premises, and for costs. o (The petition must be verified by the applicant.) The petition, if for cruel and inhuman treatment, must set out the facts constituting it, as "That on the - - day of - , 18 , the defendant drew and pointed a loaded revolver at plaintiff and threatened to take her life,"etc. It will be noticed that some of the allegations in the fore- going form of petition are only necessary when the de- fendant is a non-resident of the State; 53 it can be changed to suit the circumstances of each case. Although the statute requires the petition to be veri- fied, yet if it is not verified it will not prevent the court from having jurisdiction of the cause; but the petition should always be verified. 54 But the fact that a petition was not verified can not be urged in a collateral attack. 55 1017. Of cross-petition, etc. The causes for di- vorce heretofore mentioned may be taken advantage of by either husband or wife, and the husband may also obtain a divorce from his wife when she, at the time of the marriage, was pregnant by one other than such hus- band, of which fact he had no knowledge, unless such husband has an illegitimate child or children then living which was unknown to the wife at the time of their mar- riage. 56 The defendant may obtain a divorce in any case whore entitled to it by filing a cross-petition in the ac- tion, 57 and the cause of action thus set up by the defend- ant may be based on causes of divorce occurring subse- quent to the commencement of the original action, and will be regarded as a counter claim. 58 53 Code, Sees. 3172, 3173. se Code, Sec. 3175; Branum v. 5-t Code, Sec. 3173; McCraney v. O'Conner, 77-632. McCraney, 5-232; Van Duzer v. 57 Code, Sec. 3176. Van Duzer, 65-625; Mohler v. "* Wilson v. Wilson, 40-230. Shanks Estate. 93-273. Code, Sec. 3570. 55 Ellis v. White, 61-644. 230 DIVORCE, ANNULLING MARRIAGES, ETC. [ 1018. 1018. Of temporary alimony. Temporary ali- mony can not be allowed without the fact of the mar- riage between the parties is either admitted or proved. 59 It may be allowed before right to divorce is established. 60 But when, after a divorce, the parties again lived to- gether as husband and wife, it was held to sufficiently establish the marital relation to justify granting tem- porary alimony. 61 / The judge in vacation can not make an allowance of temporary alimony. 62 When the wife brings an action for alimony without a divorce, a tem- porary allowance may be made her the same as if she sought a divorce. 63 Orders regarding temporary ali- mony and for attorney's fees are not to be regarded as a final adjudication of the rights of the parties. 64 But tem- porary alimony is not allowed' in an action to set aside a voidable decree of divorce. 65 Defendant answering her hi&band's bill for divorce alleged that his conduct had compelled her to leave him, and asked an allowance for temporary alimony, plaintiff dismissed his bill. De- fendant moved for judgment for costs and attorney's fees, but annotion by plaintiff to strike out that part re- lating to attorney's fees was sustained, it was held that such ruling was not an adjudication of defendant's right to attorney's fees when the matter came on for hearing on the motion for temporary alimony, and that the dis- missal of the bill did not deprive the court of jurisdiction to inquire as to defendant's right to alimony. 66 The application for temporary alimony may be made in the petition or by motion setting out the circum- stances and situation of the applicant, and the amount needed to pay attorney's fees, witness' fees, and to maintain the applicant pending the proceedings, and if the witnesses are to be brought from a great distance, 59 Code, Sec. 3177; York v. York, es Finn v. Finn, 62-482; Graves 34-530; Wilson v. Wilson, 49-544; v. Graves, 36-310; Simpson v. Simp- Smith v. Smith, 61-138. son, 91-235. eo Campbell v. Campbell, 73-482. 64 Clyde v. Peavy, 74-47. ei McFarland v. McFarland, 51- er> Shaw v. Shaw, 92-722. 565. ee Q'Neil v. O'Xeil, 69 N. W., 523. ea Code, Sec. 3177; Prosser v. Prosser, 64-378. 1019.] DIVORCE, ANNULLING MAE1UAGES, ETC. 231 such fact, and all other facts showing the amount asked to be a proper allowance, should be set out. 67 And tem- porary alimony may be granted to either party in a di- vorce proceeding as against the other. 68 Nor can the husband off-set as against the amount he is directed to pay, the value of the household goods appropriated by the wife. 69 The failure of the plaintiff to pay temporary" alimony may be punished by dismissing the action, or striking the petition from the files, but this can not be done when the defendant fails to pay money awarded/ as temporary alimony. 70 1019. Of attachment and injunction. The peti- tion may be presented to the court or judge for the allow- ance of an order of attachment, and the court or judge may, by indorsement thereon, direct such attachment and the amount for which the same may issue, and the amount of the bond, j^jmy, that shall be given; and the clerk must issue the same accordingly, and any prop- erty taken by virtue thereof will be held to satisfy the judgment or decree of the court, but it may be discharged or released as in other cases. 71 But the provisions of the general attachment law are not applicable to attach- ments in divorce cases. 72 Nor is the remedy by attach- ment to restrain the disposition of the property of the defendant exclusive of that by injunction. 73 And the attachment in divorce cases may be levied on the home- stead, and it may Ibe granted in a suit to annul ^amar- ri;i t L'(s as well as in an action for a divorce. 74 Such an attachment may issue to compel the performance of an order to pay temporary alimony. 75 A conveyance of property made and accepted with the purpose of putting the property beyond the reach of such an attachment is 67 Champlin v. Champlin, 42-169; Baily, 69-77; Allen v. Allen, 72-502. Van Duzer v. Van Dtizer, 65-625; ?i Code, Sec. 3178. Briggs v. Briggs. 36-383; Maben v. ?2 Smith v. Smith, 61-138. Maben, 67-284; Miller v. Miller, 43- " Wharton v. Wharton, 57-696; 325; Peavey v. Peavey, 76-443; Dullard v. Phelan, 83-471. Campbell v. Campbell, 73-482. ~* Daniels v. Morris, 54-369. es Small v. Small, 42-111. " Van Duzer v. Van Duzer, 65- 69 Dayton v. Drake, 64-714. 625. Peel v. Peel, 50-521; Baily v. 232 DIVOECE, ANNULLING MARRIAGES, ETC.[ 1020-22. invalid. 76 The filing of a petition for a divorce which asks for permanent alimony to be made a lien upon the defendant's real estate will not of itself create a lien ihereon." But no such attachment can affect the lien of a creditor of the husband, whose judgment is obtained prior to the decree; nor can the decree be dated back to the time of the attachment, so as to cut out intervening judgments. 78 1020. Of attorney's fees. Attorney's fees may be taxed as a part of the costs in favor of the successful party, but can not be made a lien upon the homestead of the opposite party. 79 The attorney for the wife may sue and recover from the husband for his attorney's fees for the wife in a divorce proceeding, nor, in order to recover, need he show that the wife was entitled to a divorce. 80 An attorney can, for services rendered a client, in a di- vorce suit, recover of her husband only what the services were reasonably w r orth where rendered, and witnesses testifying to the value of such services must show that they know the rates charged in the vicinity where the services w T ^re rendered. 81 1021. Of the custody of children. The control of the children of the parties is in the court pending, the suit as well as when final decree is granted. 82 Put the right of custody does not survive the death of the party entitled thereto. 83 1022. Of allowance of permanent alimony without divorce. An action may be brought for alimony alone when the wife is separated from the husband on account of misconduct on his part w r hich justified the separa- te Picket v. Garrison, 76-347. si Stevens v. Ellsworth, 63 N. W., 77 Scott v. Rogers, 77-483. 683. 78 Daniels v. Lindley, 44-567. 2 Code, Sees. 3177, 3180; Green 79 Wilson v. Wilson, 40-230; see v. Green, 52-403; Zuver v. Zuver, Porter v. Briggs, 38-166; Johnson 36-190; Cole v. Cole, 23-433; Hunt v. Williams, 3 G. Gr., 97. v. Hunt, 4 G. Gr., 216; Farrer v. o Preston v. Johnson, 65-285; Farrer, 75-125; Aitchison v. Aitchi- Porter v. Briggs, 38-166; Sherwin son, 68 N. W., 573. v. Maben, 78-467; Doolittle v. Doo- ss Barney v. Barney, 14-189. little, 78-691; Clyde v. Peavy, 74- 47. 1023-24. J DIVORCE, ANNULLING MARRIAGES, ETC. tion. 84 But an action can not be maintained for alimony as an independent proceeding after the divorce of the parties. 85 But a wife residing in this State, against whom a valid decree of divorce has been rendered in an- other State, according to its laws, can not afterward maintain an action in this State for alimony out of y^op- erty not belonging to her former husband at the time of the granting of such divorce. 86 1023. Of the power to grant permanent alimony. The power to allow alimony is an incident of the power to grant a divorce, and it may be granted though not claimed in the original notice. 87 And this is true though the service is had by publication only, and in such a case the court can declare and enforce a lien for alimony against real estate of the defendant, situated in another county. 88 And alimony may be granted though no refer- ence thereto is made in the pleadings. 89 Nor will an agreement for settlement in view of separation bar a claim for alimony in a subsequent action for a divorce. 90 A contract may be made between husband and wife mak- ing provision for her in lieu of alimony. 91 But alimony can not be allowed unless the relation of husband and wife exists. 92 1024. When an allowance of alimony is proper. Where the wife, without sufficient cause, had left the husband, and the latter afterward committed adultery, for which a divorce was granted the wife, it was held that she was entitled to alimony. 93 Ordinarily where the husband obtains a divorce from his wife on the ground of adultery, she will not be awarded alimony. 94 And generally alimony is not given to the party in fault. 95 In s-t Graves v. Graves, 36-310; Whit- so Zuver v. fcuver, 36-190. comb v. Whitcomb, 46-437; Finn o Wilson v. Wilson, 40-230; v. Finn, 62-482; Farber v. Farber, Campbell v. Campbell, 73-482. 64-362; Plainer v. Platner, 66-378; i Martin v. Martin, 65-255, and Simpson v. Simpson, 91-235. cases cited. ss Wilde v. Wilde, 36-319. 2 Blythe v. Blythe, 25-266. ss Van Orsdal v. Van Orsdal, 67- ^ Dupont v. Dupont, 10-112. 35. 94 Fivecoat v. Fivecoat, 32-198. ST McEwen v. McEwen, 26-375. s Barnes v. Barnes, 59-456. 8* Harshberger v. Harshberger, 26-503. 234: DIVORCE, ANNULLING MAERIAGES, ETC. |_ 1025-27. the cases cited below the amount and kind of alimony proper to be allowed in particular cases is considered. 00 1025. Of allowing specific property. A specific part of the husband's estate may be allowed the wife as alimony. 97 But ordinarily specific property should not be thus allowed as alimony, especially so if the husband is able to pay in money the amount to be allowed. 98 And it seems to be held that in no case should more than one third of the husband's property be allowed as alimony, and sometimes a less amount." 1026. Of the lien of the judgment. Alimony may be made a lien on the homestead, 1 but a general judgment for alimony, in some cases at least, can not be enforced against a homestead. 2 But where the decree makes the alimony a lien on the homestead the fact that such prop- erty is a homestead, must be set up in the action as it can not be taken advantage of after decree. 3 A judgment for alimony decreed to be a lien as against property of the defendant in another county will take priority over a sub- sequent attachment of such property, although the at- tachment is prior to the filing of a transcript of the lien in the county where the land is situated. 4 And sometimes alimony will be decreed to be a lien prior to an existing mortgage. 5 1027. Of setting aside the decree, and of its modi- fication, etc. A decree of divorce may be set aside for fraud in obtaining it, though the rights of subsequent in- nocent parties have intervened, and the plaintiff has re- married. 6 And in such case the fraudulent decree is no defense to a prosecution for adultery for cohabiting with 6Abey v. Abey, 32-575; Farley Zuver v. Zuver, 36-190. v. Farley, 30-353; Sesterhen v. Ses- i Wilson v. Wilson, 40-230. terhen, 60-301; Day v. Day, 84-221; 2 Byers v. Byers, 21-268. Doolittle v. Doolittle, 78-691; Doug- 3 Hemenway v. Wood, 53-21. lass v. Douglass, 81-258; Parker v. * Harshberger v. Harshberger, Albee, 86-46; Abel v. Abel, 89-300; 26-503. Ensler v. Ensler, 72-159. 5 Sesterhen v. Sesterhen, 60-301. " Jolly v. Jolly, 1-9; Twing v. Whitcomb v. Whitcomb, 46- O'Meara, 59-326; see Russell v. 437; Rush v. Rush, 46-648, and 48- Russell, 4 G. Gr., 26. 701. as Inskeep v. Inskeep, 5-204. 1027. ] DIVORCE, ANNULLING MARRIAGES, ETC. 235 a woman to whom the party procuring the divorce was married after the divorce was granted, and before it was set aside. 7 But it has been held that a divorce claimed to have been procured by fraud would not be set aside at the instance of the husband, who had himself been divorced in another State, and who waited a year after knowing of such fraudulent divorce, and until his wife had re-married, before moving in the matter. 8 The stat- ute authorizes subsequent changes to be made by the court, with reference to alimony, the custody of children, and the maintenance of the parties. 9 But such changes can not be made after the death of a party against whom the change is sought. 10 But in other cases the court pos- sesses the power to modify the decree, even though the parties have removed from the State. 11 But this power to change or modify the decree exists only when there is a change in the circumstances or conditions of the parties. 12 Nor, it seems, will a decree be modified on account of change in the conditions of the party, when such change has been brought about by the improper conduct of the party seeking a change in the decree. 13 Nor will a decree be so changed as to allow alimony when none was claimed, or intended to be claimed, when the divorce was granted. 14 Nor can a judge in vacation and without no- tice to the parties change the terms of a decree. 15 While it is a question whether any court other than the one granting the decree can change or modify it, yet another court may make an order in a habeas corpus proceeding, relating to the custody of a child, which will be valid. 10 Until modified, the decree is valid and binding, and can not be attacked or changed in a collateral proceeding. 17 One to whom a divorce is granted has no further right or T State v. Whitcomb, 52-85. 12 Blythe v.Blythe, 25-266; Wilde s Webster v. Webster, 54-153. v. Wilde, 36-319. 9 Code, Sec. 3180; Sherwood v. is Fisher v. Fisher, 32-20. Sherwood, 56-608; Boggs v. Boggs, "Rouse v. Rouse, 47-422. 49-190; White v. White, 75-218; 15 Hamman v. Van Wagenen, 62 Reid v. Reid, 74-681. N. W., 795. 10 O'Hagan v. O'Hagan, 4-509. " Shaw v. M'cHenry, 52-182. 11 Andrews v. Andrews, 15-423; IT Jennings v. Jennings, 56-288. Jungk v. Jungk, 5-541. 236 DIVORCE, ANNULLING MARRIAGES, ETC. [ 1028-30. interest in the property of the other party than is given by the decree, and can not claim any share of it as dower in case of survival. 18 A proceeding for a divorce abates upon the death of the defendant 19 In making its orders for an attachment or for alimony, or for the custody of the children, the court must take into consideration the age and sex of the plaintiff, and the physical and pecuniary condition of the parties, and all other matters which are pertinent, which facts may be shown by affidavits in addition to the pleadings, or by other evidence as the court or judge may direct. 20 1028. Of the causes for annulling marriages. Marriages may be annulled for the following reasons: 1. When the marriage between the parties is prohibited by law. 2. When either party was impotent at the time of the marriage. 3. When either party had a husband or wife living at the time of the marriage; provided they have not, with a knowledge of such fact, lived and co- habited together after the death of the former spouse of such party. 4. W T here either party was insane or idiotic at the time of the marriage. 21 1029. Of the petition, etc. The petition must be filed in such cases as in an action for divorce, except that some one of the causes for annulling the marriage must be stated. 22 From the form given of a petition for a di- vorce one can readily be drawn to annul a marriage. When the validity of a marriage is doubted, either party may file a petition setting up the fact and it will be an- nulled or affirmed according to the proof. 23 1030. Of the legitimacy of children, etc, When a marriage is annulled on account of consanguinity or affinity of the parties, the issue will be illegitimate; if because of the impotency of the husband, any issue of the isBoyles v. Latham, 61-174, and Henke, 58-457; Carpenter v. Smith, see McCraney v. McCraney, 5-232; 24-200; Drummond v. Irish, 52-41; Winch v. Bolton, 63 N. W., 330. Wier v. Still, 31-107; Shaw v.Shaw, iO'Hagan v. O'Hagan, 4-509; 92-722. Barney v. Barney, 14-189. 22 Code, Sec. 3183. 20 Code, Sec. 3179. 23 Code, Sec. 3184. 21 Code, Sec. 3182; State* v. 1030.] DIVORCE, ANNULLING MARRIAGES, ETC. 237 wife will be illegitimate, but when it is annulled on ac- count of non-age, insanity or idioi-y, the issue is the legit- imate issue of the party capable of contracting mar- riage. 24 If a marriage is annulled on account of a prior marriage, and the parties contracted the second marriage in good faith, believing the prior husband or wife to be dead, that fact must be stated in the decree, and the issue of the second marriage begotten before the decree of the court is the legitimate issue of the parent capable of con- tracting. 25 In case either party entered into the contract in good faith, supposing the other to be capable of con- tracting, and the marriage is declared a nullity, such fact must be entered in the decree, and the court may award such innocent party compensation as in cases of divorce. 26 Where a person after his second marriage lived in the town where the first wife lived and she did not question the validity of the second marriage nor the legitimacy of the issue thereof, the presumption is the parties to the first marriage were divorced before the second marriage, and that the issue of each marriage will inherit from their father. 27 And see further as to presumptions. 28 2* Code, Sec. 3185. 27 Leach v. Hall, 64 N. W., 790. 25 Code, Sec. 3186. 28 Blanchard v. Lambert, 43-228; 21 Code, Sec. 3187; Daniels v. In re Estate of Edwards, 58-431. Morris, 54-369; Barber v. Barber, 74-301. CHAPTER LXIV. OF HABEAS CORPUS. Sec. 1031. When the writ lies. 1032. When it does not lie. 1033. Of the petition. 1034. Of the application for the writ 1035. Of the issuance of the writ. 1036. Of notice to the county attorney. 1037. Of service of the writ. 1038. Of disobedience of the writ. 1039. Duties of the officer. 1040. Of the order and when it will issue. 1041. How the order is served. 104f. Presumptions Appearance of the parties. 1043. Of contempt and attachment. 1044. Of commitment for failure to comply with the writ 1045. Of the service of the attachment 1046. Of the answer to the writ. 1047. Of pleas to the answer. 1048. Of the trial and judgment. 1049. Of proceedings by habeas corpus for the custody of children. 1050. Of disobedience of an order of discharge Filing of papers. Section 1031. When the writ lies. It lies to ascer- tain whether any person is rightfully in confinement or not and the cause of his confinement. 1 It lies in every case of illegal restraint. 2 It lies in every case when the application therefor is made as required by law, except in case of rebellion or invasion, when the public safety may require it. 3 It has always been regarded as the great safeguard against oppression and wrong, and the bulwark of per- sonal liberty. 4 It lies to inquire into the legality of a 1 Story on Const., Vol. 2, Sec. Const, of U. S., Art. 1, Sec. 9, clause 1339. 2. 2 Shaw v. McHenry, 52-182, 184. * Story on Const, Vol. 2, Sec. s Const, of Iowa, Art. 1, Sec. 13; 1339. 238 1032.] HABEAS CORPUS. 239 restraint in case one is imprisoned by a usurper in office. 5 It lies for the purpose of inquiring into the validity of an enlistment into the army of the United States. 6 It has been held to lie in a case where one charged on preliminary information with a crime, waived a hearing and gave bond with sureties for his appearance at the next term of court, and where he was arrested at the in- stance of his bondsmen, who surrendered him to the sher- iff; and in that case the plaintiff claimed that the law under which he was charged with the crime was uncon- stitutional and he applied for a writ of habeas corpus; it was held that his sureties had no right to arrest him for the purpose of his own exoneration, but that the court would not be justified in refusing to entertain the case, when the determining of the constitutionality of the law was of great importance to the public interest. 7 As a justice of the peace has no power to compel a party to appear by subpoena and make affidavit which is sought only as information on which to base a civil action, the writ will lie to release one who has been committed for disobedience of such subpo3na. 8 It will also lie in favor of persons confined as insane, and the question of insanity will be decided at the hear- ing, and if the judge decides that the person is insane, such decision will be no bar to the issuance of a writ the second time, whenever it is alleged that such person has been restored to reason. 9 It lies where minor children are alleged to be concealed in one of two counties, and the court in either -county will have jurisdiction to issue the writ. 10 1032. When it does not lie. It does not lie unless application is made to the judge most convenient in point of distance to the applicant, unless a sufficient reason be stated in the petition for not making the application to the more convenient court or judge thereof. 11 o Ex parte Strahl, 16-369. Code, Sec. 2306; In re Breese, e Ex parte Anderson, 16-595. 82-573. 7 Brown v. Duffus, 66-193. 10 Rivers v. Mitchell, 57-193. s Dudley v. McCord, 65-671. "Code, Sec. 4420; Thompson v. 240 HABEAS COEPUS. [ 1033. It does not lie where, from the showing of the peti- tioner, the plaintiff would not be entitled to any relief. 12 It does not lie for the purpose of revising a judgment and proceedings of a competent court, which had jurisdiction of the case, and this is true even though the conviction be irregular or erroneous. 13 It does not lie by a State court to release one who is held in custody under an order of a United States court, issued in the regular course of its procedure. 14 Nor will it lie in case where a court hav- ing jurisdiction of a cause is proceeding to arrest a party for contempt; in such a case no other court can inter- meddle with, or stay the proceedings. 15 So it will not lie to inquire into the right of one who is holding an office by color of right, though he be not an officer de jure. 16 It will not lie where a person is held to answer to the grand jury, and he claims that the evi- dence on which he was committed was insufficient in law, and on such grounds sues out a writ of habeas corpus, he and trie sheriff agreeing in the petition and answer as to what the evidence was. 17 Nor will it lie to determine w r hether the offense for which one is imprisoned is a crime under the statute, nor to correct an erroneous taxation of costs. 18 Nor will it lie in case fraud is found by a com- petent tribunal, to question the correctness of that find- ing on bringing up the body of the fraudulent debtor. 19 Nor to attack the validity of a judgment unless it is void. 20 Nor to release a prisoner because the length of imprisonment for the non-payment of a fine is not fixed. 21 1033. Of the petition. Application for the writ of habeas corpus must be made by petition, must be sworn to and must state: 1st. That the person in whose behalf it is sought is restrained of his liberty, and the Oglesby, 42-598; Shaw v. McHenry, n Ex parte Holman, 28-88. 52-182, 184. is Ex parte Holman, 28-88; see 12 Code, Sec. 4421. Robb v. McDonald, 29-330. is piatt v. Harrison, 6-79; Zelle i Ex parte Strahl, 16-369. v. McHenry, 51-572; Ex parte instate v. Rosecrans, 65-382. Grace, 12-208; Robb v. McDonald, is State v. Orton, 67-554. 29-330; Ex parte Holman, 28-88; i Ex parte Grace, 12-208. State v. Orton, 67-554; Jackson v. 20 Turney v. Barr, 75-758. Boyd, 53-536. 21 Eisner v. Shrigley, 80-30. 1033.] HABEAS CORPUS. 241 person by whom, and the place where he is restrained, mentioning the names of the parties if known, and if un- known, describing them with such particularity as is practicable. 2d. The cause or pretense of such restraint according to the best information of the applicant, and if it be by virtue of any legal process, a copy thereof must be annexed, or a satisfactory reason given for its absence. 3d. It must state that the restraint is illegal and wherein. 4th. That the illegality of the imprisonment has not al- ready been adjudged upon a prior proceeding of the same character, to the best knowledge and belief of the appli- cant. 5th. It must also state whether application for the writ has been made to and refused by any court or judge, and if such application has been made, a copy of the peti- tion in that case with the reasons for the refusal thereto appended must be produced, or satisfactory reasons given for the failure to do so. 22 The petition must be sworn to by the person confined, or by some one in his behalf, and presented to some court or officer authorized to allow the writ. 23 It may be in the following form : FORM OF PETITION FOR HABEAS CORPUS. Title, ) Venue. j To the supreme (or district) court, (or any judge of either as the case may be, naming judge to whom application is made), of the State of Iowa: The petition of respectfully shows that he is restrained of his liberty by , sheriff of county, Iowa, at the county jail of said county (or if at any other place state it), in (name of place where person is restrained) ; that the cause or pretense of such res- traint according to the best information of your petitioner is by virtue of a warrant of commitment, a copy of which is hereto annexed and marked exhibit "A." (If a copy can not be obtained state the reason and what efforts have been used to obtain it.) Your petitioner further states that said restraint is illegal, and that said illegality consists in this, to wit (here state the alleged ille- gality) ; that the legality of said imprisonment has not been adjudged 22 Code, Sec. 4417; Platt v. Har- Strahl, 16-369; Ex parte Anderson, rison, 6-79; Zelle v. McHenry, 51- 16-595: Thompson v. Oglesby, 42- 572; Ex parte Holman, 28-88; Robb 598; Shaw v. McHenry, 52-182, 184. v. McDonald, 29-330; Ex parte 23 Code, Sec. 4418. Vol. 1116 242 HABEAS COKPUS. [ 1034. upon a prior proceeding of this character, to the best knowledge and belief of your petitioner; that application for the writ of habeas corpus has not been by your petitioner, or any one in his behalf, made to and refused by any court or judge (if such application has been made that fact should be stated and a copy of the petition in such case with the reasons for the refusal thereof appended thereto must be produced or satisfactory reasons given for the failure to do so). Wherefore, your petitioner prays a writ of habeas corpus to the end that he may be dis- charged from said illegal imprisonment (or to the end that he may be admitted to bail, as the case may be). , petitioner. (or , attorney for petitioner, as the case may be). (Add verification.) (Attach and mark the exhibits referred to in the petition.) If the application for a writ is made by some one in behalf of a person confined the form must be changed ac- cordingly and be sworn to by the person making the ap- plication. 1034, Of the application for the writ. A writ of habeas corpus may be allowed by the supreme, district or superior court, or any judge thereof, and may be served in any part of the State, 24 and when the writ is properly applied for it must be allowed by the court or judge to whom application is made, providing, of course, such application be made to the proper court or judge. 25 The application for the writ must be made to the court or judge most convenient in point of distance to the appli- cant, and the more remote court or judge, if applied to for the writ, may refuse the same unless a sufficient rea- son be stated in the petition for not making the applica- tion to the more convenient court or judge thereof. 26 The court or judge applied to may refuse to allow the writ, whenever it appears from the showing of the petitioner that the plaintiff would not be entitled to any relief. 27 When any court or judge refuses the writ his reasons for so doing must be appended to the petition, and returned to the person applying for the writ. 28 2* Code, Sec. 4419. 27 Code, Sec. 4421. 25 Code, Sees. 4420, 4423. as Code, Sec. 4422. 26 Code, Sec. 4420; Thompson v. Oglesby, 42-598; Shaw v. McHenry, 52-182, 184. 1035, 1036.] HABEAS CORPUS. 243 1035. Of the issuance of the writ. It is the duty of the court or judge to whom the application is made, if it shows sufficient grounds for relief and is in the form provided by law, to allow the writ, which may be in the following form: FORM OF WRIT OF HABEAS CORPUS. The State of Iowa. To the sheriff of county, Iowa (or to as the case may be) : You are hereby commanded to have the body of by you un- lawfully detained as is alleged before the court (or before me, or before , judge of the judicial district of Iowa, or judge of the supreme court of Iowa, as the case may be,) at , on the day of , 18 , (or immediately after being served with this writ) to be dealt with according to law, and have you then and there this writ witb a return thereon of your doings in the premises.29 In witness whereof I have hereto signed my name and affixed hereto the seal of said court. [Seal.] , clerk of the court of Iowa. When a writ is allowed by the court it is to be issued by the clerk, but when allowed by a judge he must issue the writ himself, subscribing his name thereto without any seal. 30 Any judge, whether acting individually or as a mem- ber of the court, who wrongfully and willfully refuses to allow the writ when properly applied for, forfeits to the party aggrieved the sum of one thousand dollars. 31 So whenever it appears to any court or judge author- ized to grant this writ, from evidence from a judicial proceeding before them, that any person within the juris- diction of such court, or officer, is illegally imprisoned or restrained of his liberty, such court or judge shall issue or cause to be issued the writ as aforesaid, though no- application be made therefor. 32 1036. Of notice to the county attorney. The court or officer allowing the writ must cause the county attorney of the proper county to be informed of the is- suance of the same and of the time and place when and where it is made returnable. 33 20 Code, Sec. 44?3. 32 Code, Sec. 4426. so Code, Sec. 4424. 33 Code, Sec. 4427: Miller T. 31 Code, Sec. 4425 Buena Vista County, 68-711. 244 HABEAS CORPUS. [ 1037. When the notice above required is not given, the coun- ty attorney, the court, or judge, can not, by the appoint- ment of a member of the bar to appear for the defendant, confer upon said attorney the right to demand of the county pay for his services; whether it could be done if the county attorney had been notified and failed to ap- pear, quaere. 34 The notice to be given the county attorney may be in the following form: FORM OF NOTICE TO COUNTY ATTORNEY. To , county attorney of county, Iowa:" You are hereby notified that a writ of habeas corpus has been issued by me (or by the court) to inquire into the cause of the imprisonment of , now confined in the jail of county; that said writ is made returnable before me (or said court), at the court house (or if at any other place designate it), in , on the day of - , 18, at - o'clock in the noon of said day, when and where you can attend if you think proper. Dated this day of , 18. , judge, etc. (The court or judge issuing the writ may cause the notice to the county attorney to be given by the plaintiff's attorney, or by the clerk of the court when it is issued by the court.) 1037. Of service of the writ. The writ may be served by the sheriff or by any other person appointed for that purpose, in writing, by the court or judge by whom it is issued or allowed; if served by any other than the sheriff he possesses the same power and is liable to the same penalty for non-performance of his duty as though he was the sheriff. 35 The proper mode of service is by leaving the original writ with the defendant, and preserving a copy thereof, on which to make the return of service, but a failure in this respect will not be held material. 36 If the defendant can not be found or if he has not the plaintiff in custody, the service may be made upon any person having the plaintiff in his custody in the same manner and to the same effect as though he had "-* Miller v. Buena Vista County, ^ Code, Sec. 4428. 8-711. so Code, Sec. 4429. 1038, 1039.] HABEAS COBPUS. 24:5- been made defendant therein. 37 If the plaintiff can be- found and no one appear to have the charge or custody of him, the person having the writ may take him into custody and make return accordingly. 38 And if necessary to obtain possession of the plaintiff's person, in such case the person having the writ may ar- rest the defendant and bring him before the officer before whom the writ is made returnable. 39 If the defendant conceals himself or refuses admit- tance to the person attempting to serve the writ, or if he attempt wrongfully to carry the plaintiff out of the county, or the State, after the service of the writ, the sheriff or the person who is attempting to serve, or who has served the writ, is authorized to arrest the defend- ant, and bring him with the plaintiff before the officer or court before whom the writ is made returnable. 40 And in order to make such arrest the sheriff or person having the writ possesses the same power as is given to the sheriff for the arrest of a person charged with a fel- ony. 41 1038. Of disobedience of the writ. The writ of habeas corpus must not be disobeyed for any defects of form or misdescription of the plaintiff or defendant, pro- vided enough is stated to show the meaning and intent of the writ 42 If the defendant attempt to elude the service of the writ or to avoid the effect thereof by transferring the plaintiff to another or by concealing him, he w r ill, on con- viction, be imprisoned in the penitentiary, or county jail, not more than one year, and fined not exceeding one thousand dollars, and any person knowingly aiding or abetting in any such act will be subject to the same pun- ishment. 43 1039. Duties of the officer, If an officer refuse to deliver a copy of any legal process by which he detains. 37 Code, Sec. 4430. Code, Sec. 4432. ss Code, Sec. 4433. 42 Code, Sec. 4434. 39 Code, Sees. 4433, 4432. Code, Sec. 4435. Code, Sec. 4431. HABEAS CORPUS. [ 1040. the plaintiff in custody, to any person demanding the same, and who tenders the fees therefor, he will forfeit two hundred dollars to the person so detained. 44 1040. Of the order and when it will issue. The court or judge to whom the application for the writ is made, if satisfied that the plaintiff would suffer irrepar- able injury, before he could be relieved by the proceed- ings of habeas corpus, may issue an order to the sheriff, or any other person selected instead, commanding him to bring the plaintiff forthwith before such court or judge, 45 and when the evidence is sufficient to justify the arrest of the defendant for a criminal offense, in connec- tion with the illegal detention of the plaintiff, the order must direct the arrest of the defendant. 46 The order may be in the following form: FORM OF ORDER FOR PLAINTIFF. The State of Iowa. To the sheriff of county (or to some person selected and named), greeting: Whereas, has applied to me for a warrant for the body of , alleged to be illegally restrained of his liberty by in the county jail of county, Iowa, (or at , as the case may be). And whereas, it satisfactorily appears to me that the said - - is illegally restrained of his liberty by the said , and also that the said will suffer irreparable injury before he can be relieved by issuing the ordinary writ of habeas corpus. You are, therefore, hereby commanded that you fortEwith take the said and bring him before me to be dealt with according to law. Witness my hand this day of , 18 . , judge, etc. If the defendant is also to be arrested on the order, insert in the above form before the date-line and signa- ture the following: "And whereas it further satisfactorily appears to me that the said has committed the crime of (here name the offense) in connec- tion with the illegal detention of the said , you are, therefore, hereby commanded forthwith to arrest the said and bring him before me to be dealt with according to law, and have you then and there this writ with a return hereon of your doings in the premises." (Add date and signature as above.) " Code, Sec. 4436. 40 Code, Sec. 4438. 45 Code, Sec. 4437. 1041,1042,1043.] HABEAS CORPUS. 247 If the application is to the court, the order issues by the clerk with the seal of the court affixed. 1041. How the order is served. The officer or per- son to whom the order is directed must execute the same by bringing the defendant, and the plaintiff if required, before the court or judge issuing it, and thereupon the defendant must make return to the writ of habeas cor- pus in the same manner as if the ordinary course had been pursued. 47 1012. Presumptions Appearance of the parties. Any person served with a writ is presumed to be the person to whom it is directed, although it may be di- rected to him by the wrong name or description, or to another person. 48 And where service is made, as heretofore stated, the de- fendant must appear at the proper time and answer the petition, but no verification to the answer is necessary. 49 He must also produce the body of the plaintiff or show good cause for not so doing. 50 1043. Of contempt and attachment. A willful failure to comply with the foregoing requirements ren- ders the defendant liable to be attached for contempt and imprisoned until a compliance is obtained, and also subjects himself to the forfeiture of one thousand dollars to the party thereby aggrieved. 51 The attachment in such case may be in the following form: FORM OF ATTACHMENT FOR CONTEMPT IN DISOBEYING WRIT OF HABEAS CORPUS. The State of Iowa. To the sheriff of - county (or to any other person named), greeting: It appearing satisfactorily to me (or to the court), on the oath of , that to whom a writ of habeas corpus was de- livered commanding him to have the body of in said writ named before me (or before court), at , on the - 47 Code, Sec. 4439. so Code, Sec. 4443; Rivers v. 48 Code, Sec. 4441. Mitchell, 57-193. 4 Code, Sec. 4442. 5 * Code, Sec. 4444. 248 HABEAS ccmrus. [ 1044. day of , 18 , to be dealt with according to law, has willfully neglected to obey said writ, according to the commands thereof, by not producing the said before me (or before court), and also by not making return of said writ. You are, therefore, hereby commanded forthwith to arrest the said and bring him immediately before me, (or before court) at (state the place), in said county, to be dealt with according to law. And you are hereby further commanded to bring up and have before me at said time and place, the body of the said , who is alleged to be illegally restrained of his liberty by the said , at (here insert place where plaintiff is confined) to be dealt with according to law, and have you then and there this writ with a return thereon of your doings in the premises. Witness my hand this day of , 18 . , judge, etc. (If attachment is issued by order of the court, it must be signed by the clerk, and seal of the court affixed; if issued by the judge he must sign it himself without any seal.) 1044. Of commitment for failure to comply with the writ. A willful failure to comply with the above requirements renders the defendant, who has been pro- duced on attachment (before the court or judge), liable to be imprisoned until a compliance is obtained, and also subjects him to the forfeiture of one thousand dollars to the party thereby aggrieved. 52 And if on his appearance he still refuses to comply with the orders of the court, he may be committed to the jail of the county. The warrant of commitment may be in the following form: FORM OF WARRANT OF COMMITMENT. The State of Iowa. To the sheriff of county, greeting: To (or to any person named, as the case may be) : Whereas has been brought before me on an attachment for contempt issued by me stating (here set forth the contempt as stated in the attachment). And whereas the said still refuses to produce the body of said according to the command of said writ, and refuses to make a plain and unequivocal return and answer to said writ of habeas corpus, you are hereby commanded to take the said and him safely keep in the jail of county, Iowa, until he shall compiy with the said writ of habeas corpus, or until otherwise legally dis- charged. , judge, etc. (If the order for the warrant is made by the court it should b& signed by the clerk with the seal of court attached.) Code, Sec. 4444. 1045,1046.] HABEAS CORPUS. 249 1045. Of the service of the attachment. The at- tachment may be served by the sheriff, or any other per- son thereto authorized by the court or judge, who shall also be empowered to produce the body of the plaintiff, forthwith, and has for this purpose the same powers as are conferred upon him in similar cases heretofore ex- plained. 53 1046. Of the answer to the writ. The defendant upon his appearance must make answer in which he must state plainly whether he then has, or at any time has had, the plaintiff under control or restraint, and if so, the causes thereof. 54 Where the petition for habeas corpus alleged that minor children were concealed by the defendant in one of two counties, and the court in one of these counties issued the writ, and the defendant in his answer pleaded that the children were in a foreign jurisdiction, it was held that these facts did not deprive the court of jurisdiction or excuse the defendant from not producing the children in court in obedience to th? writ. 55 If he has transferred the plaintiff to another person, he must state that fact, and to whom and the time when, as well as the reasons or authority for such transfer. 56 If he holds him by virtue of legal process or written au- thority he must annex a copy thereof to his answer. 57 He must produce the bodies of the persons deprived of their liberties before the court or judge, or state in his return to the writ that he does not have the power to do so in obedience to the writ. 58 When the custody of a child is in controversy the controlling fact is the best interest of the child. 59 The answer of the defendant may be in the following form: ss Code, Sec. 4445. ee Code, Sec. 4447. s* Code, Sec. 4446; Rivers V. 67 Code, Sec. 4448. Mitchell, 57-195. es Rivers v. Mitchell, 57-195. 55 Rivers v. Mitchell, 57-195. 69 Kuhn v. Breen. 70 N. W.. 732. 250 HABEAS COEPUS. [ 1047, 1048. FORM OF ANSWER TO WRIT OF HABEAS CORPUS. Title, Venue. The defendant for answer and return to the writ of habeas corpus hereto annexed states: That at and before the coming of said writ to him, and prior to its service on him, to wit, on the day of , 18 , at , the said (here insert name of person mentioned in said writ), was placed in his custody by virtue of a warrant of com- mitment (or as the case may be), issued by (here state name and official character of the magistrate who issued warrant), a copy of which is hereto annexed; that the defendant now holds - - in custody by virtue of said warrant, and that in obedience to the said writ of habeas corpus the body of said is now produced by de- fendant before said , judge (or court, as the case may be), to be dealt with according to law, as by said writ commanded. , sheriff, defendant. (The answer need not be verified.) so 1047. Of pleas to the answer. The plaintiff may demur or reply to the defendant's answer, but no verifi- cation will be required to the reply. 61 Such reply may deny the sufficiency of the testimony to justify the action of the committing magistrate. 62 1048. Of the trial and judgment. Trial is by or- dinary proceedings, and the determination of the court upon the facts has the effect of a verdict of a jury, 63 and as it is a proceeding at law, neither party is entitled to a trial de novo in the supreme court. 64 The proceedings are not criminal in their nature, and the action should be in the name of the person alleged to be illegally re- strained and not in the name of the State. 65 Where the applicant is remanded to the custody of the defendant, the costs can not be taxed to the county. 66 All issues in the case are to be tried by the judge or court. 67 And on the trial the written testimony taken before the committing magistrate, may be given in evi- 60 Code. Sees. 4442, 4449. 6* Fouts v. Pierce, 64-71; Shaw v. 61 Code, Sec. 4449. Natchwey, 43-653. ea Code, Sec. 4450. es state v. Collins, 54-441. 63 Bonnett v. Bonnett, 61-199; ee state v. Collins, 54-441. Fouts v. Pierce, 64-71; Kuhn v. 67 Code, Sec. 4449. Breen, 70 N. W., 722; Jenkins v. Clark, 71-552. 1048.] HABEAS COEPUS. 251 dence in connection with any other testimony which may then be produced. 68 And if the plaintiff waived exami- nation before the committing magistrate, it will not pre- vent the introduction in a habeas corpus proceeding, of testimony, for the purpose of showing that he is detained upon insufficient evidence to sustain the charge. 69 The warrant of committment issued to the sheriff of the county in which the examination is held will author- ize the plaintiff's detention and custody by the sheriff. 70 It is not permissible to question the correctness of the action of a grand jury in finding a bill of indictment, or of the trial jury in the trial of a cause, nor of a court or judge when lawfully acting within, the scope of their au- thority. 71 If no sufficient cause of legal detention is shown, the plaintiff must be discharged. 72 Although the commitment of the plaintiff may have been irregular, still, if the court or judge is satisfied from the evidence before them that he ought to be held to bail or committed, either for the offense charged or any other, the order may be made accordingly. 73 The plaintiff may in any case be committed, admitted to bail, or his bail may be reduced or increased, as jus- tice may require. 74 The defendant may also be examined and committed, or bailed and discharged, according to the nature of the case. 75 Until the sufficiency of the cause of restraint is deter- mined, the defendant may retain the plaintiff in his custody, and may use all necessary and proper means for that purpose. 76 The plaintiff may in writing waive, or his attorney may waive, his right to be present at the es Code, Sec. 4450; Cowell v. Pat- Platt v. Harrison, 6-79; Zelle v. terson, 49-514; State v. Rosencrans, McHenry, 51-572; State v. Orton, 65-382. 67-554. GO Cowell v. Patterson, 49-514. 72 Code, Sec. 4452; Shaw v. Mc- 70 Cowell v. Patterson, 49-514. Henry, 52-182; State v. Kirkpat- 71 Code, Sec. 4451; Turney v. rick, 54-373. Barr, 75-758; Eisner v. Sprigley, " Code, Sec. 4453; Jackson v. 80-30; State v. Zimmerman, 83-118; Boyd, 53-536. Ex parte Grace, 12-208; Ex parte 74 Code, Sec. 4454. Holman, 28-88; Robb v. McDonald, 75 Code, Sec. 4440. 29-330; State v. Seaton, 61-563; TO Code, Sec. 4455. 252 HABEAS CORPUS. [ 1049. trial, in which case the proceedings may be had in his absence. If the waiver is made before the writ issues, it should be modified accordingly. 77 And in such case, the form of writ heretofore given will be changed by omitting the clause requiring the body of the plaintiff to be produced. 1019, Of proceedings by habeas corpus for the custody of children. In cases where it is sought by habeas corpus to obtain the control and custody of chil- dren, the controlling consideration is the interest of the child itself. 78 This is always the rule when the parent seeking the custody has, either by abandonment or con- tract, surrendered his personal legal right to such cus- tody. 79 And where a child, by permission of her parents, resided for a time with others, who sought to detain her beyond the expiration of the time, and with whom she preferred to remain, it was held that while the wishes of the child should not be disregarded, yet the controlling consideration would be the best interests of the child, with due regard to the natural rights of the parents. 80 As between the father and mother of a child, the former has no particular right to its custody, and it will be awarded so as best to promote the interests of the child. 81 Nor is the right of the parents to the custody of their children absolute under all circumstances; they may surrender the custody of the child to another, either by abandonment or contract, and in such case the matter of primary importance is the interest and welfare of the child. 82 A step-father of minor children, who are members of his family, stands in loco parentis to such children, and, under ordinary circumstances, can make no claim for their support and maintenance. 83 " Code, Sec. 4456. so state ex rel. Shaw v. Nacht- TS Fouts v. Pierce, 64-71; Jenkins wey, 43-653. v. Clark, 71-552; Kuhn v. Breen, si State v. Kirkpatrick. 54-373. 70 N. W., 722. *2 Bonnett v. Bennett, 61-199. Bonnett v. Bonnett, 61-199, ss Latham v. Meyers, 57-519. and eases cited; see Drum v. Keen, 47-435. 1050.] HABEAS COEPUS. 253 1050. Of disobedience of an order of discharge- Filing of papers Costs. Disobedience to an order of discharge subjects the defendant to attachment for con- tempt, and also to the forfeiture of one thousand dollars to the party aggrieved, besides all damages sustained by him in consequence of such disobedience. 84 When the proceedings are before a judge, except when the writ is refused, all the papers in the case, including his official .order, must be filed with the clerk of the district court of the county wherein the final proceedings are had, and a memorandum thereof must be entered by the clerk in liis judgment docket. 85 If the plaintiff is discharged, the costs must be taxed to the defendant unless he is an officer holding the plaintiff in custody under a warrant of arrest or commitment, or under other legal process, in which case the costs must be taxed to the county. If the plaintiff's application is refused, the costs must be taxed against him, and, in the discretion of the court, against the person who filed the petition in his behalf. 88 s* Code, Sec. 4457. so Code, Sec. 4459; State v. Col- ss Code, Sec. 4458; see also chap- lins, 54-441. ter on Appellate Proceedings. CHAPTER LXV. OP THE HOMESTEAD. Sec. 1051. When the homestead is exempt. 1052. When it is not exempt. 1053. Same Of debts contracted prior to its purchase. 1054. When sold for debts created by written contract. 1055. Of the head of the family. 1056. Of conveyance, incumbrance, judgments, etc. 1057. Of the extent of the homestead. 1058. Same Of several lots 1059. Same What it embraces. 1060. Of selecting and platting the homestead. 1061. Of changing the limits of the homestead. 1062. Of pleading and practice. 1063. Of dispute as to what constitutes the homestead How de- termined. 1064. Of the action of the court, etc. 1065. Of the occupation of the homestead by the survivor, etc. 1066. Of the election to hold the homestead in lieu of dower. 1067. Of the disposal of the homestead. 1068. Of sale or devise of the homestead. 1069. Of abandonment of the homestead. Section 1051. When the homestead is exempt, Ex- cept when otherwise provided by statute, the homestead of every family, whether owned by the husband or wife, is exempt from judicial sale, and so may be the proceeds of a sale of the homestead, where sold with the intention of investing in a new one and the husband dies before re- ceiving such proceeds. 1 Where a homestead acquired previous to the creation of a debt, was sold by the owner for other property of less value, which last homestead was acquired after the contraction of the debt but before judgment was rendered thereon, the new homestead was iCode, Sec. 2972; Schuttloffel v. Collins, 67 N. W., 337. 254 1051.] THE HOMESTEAD. 255 exempt. 2 The homestead character does not attach to property until it is actually occupied as a home. A mere intention to occupy it is not sufficient. 3 The fact that the vendor retains the legal title as security for the un- paid purchase money will not defeat the vendee's claim to a homestead in the property. 4 A tenant in common may hold a homestead in his interest in the undivided premises. 5 And so a tenant holding by an equitable title may have a homestead in lands which he occupies as a home. 6 And a building erected on leased land and occu- pied by the family as a home becomes a homestead. 7 And when the dwelling house is situated on land of the w r ife lying contiguous to that owned by the husband and both tracts were occupied as a homestead, it w T as held that the wife, as against her husband's creditors' Bright claim a homestead carved in part out of her own land, and in part out of the husband's. 8 An unmarried woman who had accepted, protected, and was providing for children of a deceased sister, w r as held entitled to the homestead exemption. 9 While a judgment under which a home- stead is not liable to sale does not attach as a lien there- on, yet it will attach if the homestead is abandoned. 10 The homestead of every pensioner who is a resident of this State, whether he is the head of a family or not, which is purchased and paid for with pension money or the proceeds or accumulation of such money, is exempt, and such exemption applies as against debts of such pensioner contracted prior to the purchase of such home- stead. 11 Where a portion of the homestead was by prop- zpierson v. Minturn, 18-36; but rington, 93-108; Neal v. Coe, 35- ece First Nat'l Bk. v. Thompson, 407. 72-417. * Stinson v. Richardson, 44- 3 Charless r. Lambertson, 1-435; 373; Lessell v. Goodman, 66 N. W., Williams v. Swetland, 10-51; Chris- 917. ty v. Dyer, 14-438; Cole v. Gil). 14- & Thorn v. Thorn, 53-706; Bolton 527; Hale v. Heaslip, 16-451; Page v. Oberne, 79-278. v. Ewbank, 18-580; Elston v. Rob- Hewett v. Rankin, 41-35. inson, 23-208; Givans v. Dewey, 47- * f elan v. DeBevard 13-53. 414; Yost , Devault, 9-60; Neal , J^^g^JMM Coe, 35-407; Cogwell v. Warring- 10 Lamb v. Shays, 14-567; Cum- ton, 66-666; First Nat'l Bk. v. Hoi- min^s v. Long, 1 <*> Anderson v. Culbert, 55-233. ^ 8 ~ 18 ; I? w,v a> "\,S' 7 ' 91 Adams v. Beale, 19-61; Bvers Co. v. McWilhams, 71-164. y Johnson, 89-278. ss Spafford v. Warren, 47-47; see 92 chrysty v. Dyer, 14-38: Mahon Clark v. Evarts, 46-248; Corbin v. v . Cooley, 36-479; see Burnap v. Minchen, 81-682; Seiffert & Wiese Cook, 16-149. 1056.] THE HOMESTEAD. 265 sign an instrument of conveyance or incimibrance of the homestead she will not thereafter be permitted to dis- pute its validity on the ground that she was ignorant of its contents, or that she was induced to do so by fraud, or deception of her husband, unless it be shown that the grantee, or mortgagee, had knowledge of the same. 93 A conveyance of the homestead from the husband to the wife will not vest her with such title that she alone can make a valid conveyance thereof. 94 A mortgage to which the concurrence of the wife is obtained by duress is void. 95 An express agreement on the part of a wife to convey a homestead will not bind her if not in writ- ing. 96 The subsequent adoption of property as a home- stead will not affect conveyances previously made. 97 And when leased premises are occupied as a homestead the husband alone can not make a valid assignment of such lease. 98 And the same is true where it is held under a contract of purchase. 99 If the wife is insane when she joins in the conveyance of the homestead it will be invalid. 1 The wife may join in a mortgage of the homestead for the payment of her husband's debts, or to secure their joint note. 2 It is held that when one takes possession of a homestead under a void transfer, but in good faith, and makes improvements which are proper, he is entitled to an allowance for the same, but whether the wife, who in such case attempted to convey the homestead, can re- cover rents and profits, quaere. 3 If the title to the home- stead has its inception in fraud, the homestead charac- ter can not be set up as against the claim of the one from whom it was obtained. 4 A judgment defendant who is 93 Edgell v. Hagens, 53-223; Van v. Richardson, 44-373. Sickles v. Town, 53-259; ^Etna L. 97 Yost v. Devault, 3-345. Ins. Co. v. Franks, 53-618; Sawyer o& Phelan v. De Bevard, 13-53. v. Perry, 62-238; see Johnston v. Drake v. Moore, 66-58. McPherran, 81-230. i Alexander v. Vennum, 61-160; 9-t Spoon v. Van Fossen, 53-494; see Abbott v. Creal, 56-175. Harsh v. Griffin, 72-608. 2 R O ck v. Kreig, 39-239; Low v. 95 1st Nat'l Bk. v. Bryon, 62-42. Anderson, 41-476. 96 Anderson v. Culbert, 55-233; s stinson v. Richardson, 44-373. Clay v. Richardson, 59-483; Down- * Muir v. Bozarth, 44-499. er v. Rodenbaugh, 61-269; Stinson 2G6 THE HOMESTEAD. [ 105G. a surety for his co-defendant may show that the judg- ment is for a debt antedating the acquisition of the homestead. 5 Creditors whose claims are not a lien on the homestead can not have the conveyance of it set aside. 6 Nor will a voluntary conveyance of a homestead be fraudulent as to creditors who have no lien there- on. 7 The law regarding homestead has, it is held, no application in a suit for divorce and alimony, and an at- tachment may issue in such cases against the home- stead. 8 The wife will not be affected by a suit foreclos- ing a mortgage against the homestead -to which she is not a party, 9 but her interest in a homestead covered by a mortgage executed by the owner before marriage will be junior to such mortgage, but she should be made a party to a suit foreclosing such mortgage to cut off her dower right. 10 Ordinarily one will be precluded from setting up a homestead right, or a right to the proceeds thereof, who fails to do so when the mortgage is fore- closed, or when he consents to the application of the surplus on such sale to the payment of certain debts, or when it is sold on a judgment for alimony. 11 The in- validity of a mortgage on a homestead executed by the husband alone, may be set up by a junior mortgagee against a prior mortgage. 12 The provisions of the code, section 4292, do not apply in case of homesteads. 13 The debtor can not enjoin the sale of the homestead on exe- cution on the ground that his other property has not been exhausted unless he avers that he has other prop- erty. 14 Nor can he complain that such other property is not first exhausted when he makes no objection to the s Delevan v. Pratt, 19-429. 10 Chase v. Abbott, 20-154; Lar- s Aultman v. Heiney, 59-654; son v. Reynolds, 13-579; see Good- Payne v. Wilson, 76-377; Beyer v. rich v. Brown, 63-247. Thoemine;, 81-517; Wells v. Ander- n Larson v. Reynolds, 13-579; son, 66 N. W., 102. Haynes v. Meek, 14-320: Collins v. ' Delashmut v. Trau, 44-613; Of- Chantland, 48-241; Brumbaugh v. ficer v. Evans, 48-557; Butler v. Zollinger, 59-384; Hemenway v. Nelson, 72-732; Wheeler & Wilson Wood, 53-21. Mfg. Co. v. Bjelland, 66 N. W., 12 Allen v. Bay, 9-509. 885. is Grant v. Parsons, 67-31. s Code, Sec. 3178; Daniels v. "Stevens v. Myers, 11-183; Morris, 54-369. Owens v. Hart, 62-620. 9 Burnap v. Cook, 16-149. THE HOMESTEAD. 267 sale, having notice thereof. 15 When a husband has con- tributed a portion of the purchase price of a homestead, the title of which is in his wife, creditors of the husband, whose claims antedate the acquisition of the homestead, may subject it to the satisfaction of such claims to the extent of his contribution thereto. 16 The earnings of a wife not derived from her separate property or business, but acquired in the management of family affairs, are not her separate property so that she can invest them in her homestead and have it exempt from the debts to which such homestead would be liable in the hands of her husband. 17 Minor children have no such interest in the homestead of their parents during their lifetime, as the law will enforce against the contracts, or acts of such parents. 18 In case a homestead is conveyed to the son of the owners, subject to the right of either of them to occupy it during life, and the husband, surviving, re- sided until his death with his son, who did not reside on the homestead, the son did not acquire the property as a homestead. 19 1C57. Of the extent of the homestead. The homestead must embrace the house used as a home by the owner thereof, and if he has two or more houses thus used by him at different times and places, he may select which he will retain as a homestead. 20 An actual re- moval from the homestead with no intention of return- ing will be a waiver or forfeiture of the homestead right as against purchasers or creditors, though no new home- stead be gained. 21 If, however, such removal is but tem- porary and third persons have not been led to believe that the property was not a homestead, by the owner out of possession, and to act on such belief by altering their condition, the homestead right will still subsist. 22 In i*Foley v. Cooper, 43-376; see i Reifenstahl v. Osborne, 66- McCleary v. Ellis, 54-311. 567. ie Croup v. Morton, 49-16, 53-599; 20 Code, Sec. 2977; Fyffe v. Beers Hamill v. Henry, 69-752; see First 18-4. Nat'l Bk. v. Hollinsworth, 78-575. 21 Fyffe v. Beers, 18-4. IT Hamill v. Henry, 69-752. 22 Davis v. Kelley, 14-523; Des is Collins v. Chantland, 48-241. Moines v. Sargent, 18-90; Brad- shaw v. Hurst, 57-745. 2G8 THE HOMESTEAD. [ 1058. these cases, each one must to a great extent be decided on its own peculiar facts. 23 Stronger and clearer proof of the abandonment of a homestead is required, where the lien sought to be enforced against it arose during the actual occupancy, than where it arose when the owner was not in actual possession. 24 Length of absence from the homestead is not conclusive evidence of abandon- ment, but is an important fact to be taken into consider- ation. For a discussion of the facts in particular cases with reference to abandonment the reader is referred to cases under the section treating of abandonment. A homestead law in force at the date of a contract becomes a part of it, and a repeal of the law does not impair the right of exemption. 25 In order to constitute a home- stead there must be a house situated on real estate which is used as a home. 26 But the homestead character will not be lost by the property being rented to a ten- ant. 27 Sometimes portions of a building used as a store are exempt from execution, while other portions of the same building are not exempt. 28 And it is held that when a wife owning a homestead left it and removed with her husband to another State for a temporary pur- pose, the intention to return will be presumed to con- tinue until the contrary is shown. 2 * Two tracts of laud belonging, the one to the husband and the other to the wife, may together constitute the homestead/' 50 Aban- donment of the homestead may be shown without proof of the acquisition of a new homestead. 31 1058. Same Of several lots. The homestead may contain one or more contiguous lots or tracts of land, with the buildings thereon, and other appurtenances, 23Fyffe v. Beers, 18-4; Dodds v. 23 Rhodes v. McCormick, 4-368: Dodds, 26-311; Stewart v. Brand, McCormick v. Bishop, 28-233; see 23-477. Wright v. Ditzler, 54-620: Mayfield 24 Davis v. Kelley, 14-523; Dun- v. Maasden, 59-517; Johnson v. ton v. Woodbury, 24-74. Moser, 66-536; Smith v Quig-ans '-;- Bridgmen v. Wilcut, 4 G. Gr., 65-637. 563: Coriell v. Ham, 4 G. Gr., 455. 20 Bradshaw v. Hurst. 57-745 26Windle v. Brandt, 55-221; see 30 Lovell v. Shannon. 60-713. Neal v. Coe. 35-407. si Cotton v. Hamil, 58-594 27 Rob v. McBride, 28-386. 1059.] THE HOMESTEAD. 269 subject to the limitations below stated. It must in no case embrace different lots or tracts, unless they are contiguous, or unless they are habitually and in good faith used as a part of it. 32 If within a city or town, the homestead must not ex- ceed one-half an acre in extent, otherwise it must not embrace, in the aggregate, more than forty acres; but if, when thus limited, in either case, its value is less than five hundred dollars, it may be enlarged until its value reaches that amount. 33 But the extent of a homestead situated in a town will not be limited to a half acre, un- less the territory embracing it has been platted. 34 There is no limit to the value of the building used as a home- stead, but only on the land. 35 When a husband and wife are occupying as a home- stead more land than the law exempts, and the home- stead has not been platted as required by statute, a mort- gage executed by the husband alone on any of the land is void; but a judgment rendered on a debt intended to be secured may be enforced against the excess of land so occupied, provided the homestead is marked off. 36 The value of the homestead does not affect the right of the owner to its exemption. It is a right conferred by stat- ute on rich and poor alike. Nor will a homestead out- side of a town plat 'be affected by the town being so ex- tended as to include it. 37 1059. Same What it embraces. A homestead may embrace leasehold property as well as a freehold, and it may attach to land in possession of a vendee under a contract when the legal title is in the vendor, 38 but it 32 Code, Sec. 2977; Reynolds v. Frost v. Rainbow, 85-289; First Hull, 36-394; Henderson v. Rain- Nat'l Bk. v. Hollinsworth, 78-575. bow, 76-320; First Nat'l Bk. v. 34 McDaniel v. Mace, 47-509; Fin- Hollingsworth, 78-575; Mann v. ley v. Detrick, 12-516; Truax v. Corrington, 61 N. W., 409; Johnson Pool, 46-256; Beyer v. Thoeming, v. Moser, 72-523; McClure v. Bra T 81-517. niff, 75-38; Arnold v. Gotshall, 71- s Rhodes v. McCormick, 4-368. 572; Cass County Bk. v. Weber, 83- ** Goodrich v. Brown, 63-247; 6; Woolcut v. Lerdell, 78-668; see Helfenstein v. Cave, 3-287, and Groneweg v. Beck, 62 N. W., 31. 6-374. 33 Code, Sec. 2978; Thorn v. 37 Finley v. Deitrick, 12-516. Thorn, 14-49; Yates v. McKibben, Pelan v. De Bevard, 13-53; 66-357; Boot v. Brewster, 75-631; Lessell v. Goodman, 66 N. W., 917. 270 THE HOMESTEAD. [ 10GO. must not embrace more than one dwelling house, or any other building, except such as are properly appurtenant to the homestead as such; but a shop or other building situated thereon and used and occupied by the owner in the prosecution of his own ordinary business, and not exceeding three hundred dollars in value, may be deemed appurtenant to such homestead. 39 But it will not embrace buildings appurtenant and which are leased to others. 40 A barn or stable used for ordinary purposes in connection with a homestead is exempt without re- gard to its value, as property appurtenant to the home- stead. 41 But a building or a portion of a building used as a place for the illegal sale of intoxicating liquors will not be exempt as a part of the homestead. 42 And rooms used for business purposes may lose their homestead character, except as they are appurtenant to the home- stead. 43 1060. Of selecting and platting the homestead. The owner, husband or wife, may select the home- stead and cause it to be platted, as hereafter set forth, but a failure to do so does not leave the homestead lia- ble, nor prevent the owner from claiming more than forty acres, and a selection by the owner will control. 44 The property occupied by the parties as a homestead will be regarded and treated as such' where the husband and wife fail to select their homestead. 45 The plat must be recorded to constitute a valid selection of a home- stead under the statue. 46 Where an officer holds an exe- cution against a homestead and 6ther lands, and the oc- cupants fail to select and plat a homestead, it is the duty of the officer to do so, and it seems a failure to do so and a sale en gross of the property will be void. 47 And he 39 Code, Sec. 2978; Rhodes v. Me- 45 Alley v. Bay, 9-509. Cormick, 4-368; Smith v. Quig- *o White v. Rowley, 46-680; Low- gans, 65-637. ell v. Shannon, 60-713; Martin v. 4oKurzv. Brusch, 13-371. Knapp, 57-336; Owen v. Hart, 62- 41 Wright v. Ditzler, 54-620. 620. 42 Arnold v. Gotshall, 71-572. 4- Code, Sec. 2979; Visek v. Doo- 43 McClure v. Braniff, 75-38. little, 69-602; Linscott v. Lamart, 44 Code, Sec. 2979; Nye v. Walli- 46-312; Owens v. Hart, 62-620; ker, 46-306; Linscott v. Lamart, 46- White v. Rowley, 46-680; Lovell v. 312; Green v. Farrar, 53-426. Shannon, 60-713. 1000.] THE HOMESTEAD. 271 must first exhaust other property, if there be any. But it is held that the requirement of the statute, code of 1873, section 1998, that the officer must select and plat a homestead in case the parties fail so to do, applies to special executions as well as to a general execution, and if a sale is made without platting the homestead it is voidable only. 48 The old statute expressly required the officer, in certain cases, to plat the homestead, and the above decisions were made under that law, now the statute contains no such provision, but in lieu thereof it is provided that upon the application of any creditor of the owner of a homestead, or of any other interested person, to the district court, such court must hear the cause upon the proof offered and fix and establish the boundaries of the homestead, and its judgment must be filed with the county recorder and recorded in his office. 49 In an execution sale of the interest of a tenant in common it is not proper for the officer to set off any specific portion of the property as a homestead. 50 But where a tract including the homestead was sold in a lump after being first offered in forties, it was held that no prejudice resulted from a failure of the sheriff to mark off and plat the homestead. 51 The homestead must be marked off by fixed and visible monuments, and in giving a description thereof, the direction and distance of the starting point from some corner of the dwelling house must be stated; the description and plat must then be filed and recorded by the recorder of the county in a book to be called a "homestead book," which must be provided with a proper index. 52 If the undivided interest of a tenant in common be sold, in land in which he has a homestead interest, the officer should not set off any portion as hir homestead. 53 The selection and platting of the homestead may be in the following form: 43 Newman v. Franklin, 69-244. si Brumbaugh v. Zollinger, 59- Martin v. Knapp, 57-366. 384. 49 Code, Sec. 2980. 52 Code, Sec. 2979. BO Farr v. Reilly, 58-399. BS Fair v. Reilly, 58-399. THE HOMESTEAD. [ FORM OF SELECTING AND PLATTING HOMESTEAD. I, - , being a resident of - - county, Iowa, and the head of a family, and now owning and residing on the following described real estate in said county (here describe land), do hereby select and plat as my homestead the following portion of said land, viz. : Begin- ning at a point rods due west of the northwest corner of my dwelling house, on the above described land and at the (here insert place in the section) thence north rods, thence east rods, thence south rods, thence west rods to the place of be- ginning, as will more fully appear in the plat below, wherein the points above described are designated by fixed and visible monuments, and said plat is made a part hereof (here make plat showing location of dwelling house and the lines and distances above mentioned and show- ing monuments set at points mentioned in above description). The above form of description sufficiently indicates what is necessary. The plat must be filed and recorded. FORM OF NOTICE TO PLAT HOMESTEAD. To (names of owners): You, and each of you, are hereby notified that by virtue of an ex- ecution directed to me from the clerk of the district court of - county, Iowa, dated the day of , 18 , that I did on the - day of , 18 , levy upon the following described property situated in county, Iowa, to wit (here describe the 'land levied on), and I will offer the same for sale at the court house in - , Iowa, on the day of , 18 , and you are requested to select, plat and record a homestead from the above described real estate on or before the day of - 18 , and in case you refuse, or neglect so to do, I shall have said homestead selected and platted as provided by law. Dated at , Iowa, the day of , 18 . , sheriff of county, Iowa. The application of the creditor to the court to fix and establish the boundaries of the homestead may be in the following form: FORM OF APPLICATION OF A CREDITOR TO THE DISTRICT COURT TO FIX AND ESTABLISH THE BOUNDARIES OF THE HOMESTEAD. In the matter of the application of ^ a judgment creditor of and for an order fixing and V establishing the boundaries of the home- I stead in the land of and . J Your petitioner shows to the court that the defendants and are the fee simple owners of the following described real estate (here describe it), situated in the county of , Iowa, and consisting 10 JO.] THE HOMESTEAD. 273 of acres. That they are entitled to have a homestead set apart therein. That your petitioner holds a judgment against said and which is in full force and unpaid, and which will be a lien upon all of said land not set apart as a homestead. Petitioner therefore asks that this court fix and establish the boundaries of said homestead in. said land and that due notice be given the owners of said land of the 'time fixed for the hearing of this application. , Attorney for petitioners. This form can readily be varied in case the petitioner has such other interest as to entitle him to make such an application. The statute does not expressly provide for a notice of the Hearing of an application to the court to fix and establish the boundaries of a homestead, but such a notice should be given and the court should fix and determine the time of notice. Such notice may be in the following form: FORM OF NOTICE TO OWNERS OF THE HEARING OF AN APPLI- CATION BY THE DISTRICT COURT TO FIX AND ESTAB- LISH THE BOUNDARIES OF THE HOMESTEAD. To (names of owners). You, and each of you, are hereby notified that (a judgment creditor of yours, or if a person otherwise interested so as to entitle him to make such application, state what said interest is) has made ap- plication to the district court of - county, Iowa, asking said court to fix and establish the boundaries of your homestead in the (here de- scribe the land) and said application will come on for hearing before said court at the court house in on the day of , 18 , at o'clock a. m., at which time and place you can offer such proof as may be proper touching the location of said homestead. Dated this day of , 18 Clerk of the district court of County, Iowa. The entry of judgment fixing and establishing the boundaries of said homestead may be in the following form : FORM OF ENTRY OF JUDGMENT FIXING AND ESTABLISHING THE BOUNDARIES OF A HOMESTEAD. In the matter of the application of , -v a judgment creditor of and I for fixing and establishing the boundar- V ies of a homestead in the land of I and . And now to wit, on this day of 18 , this cause came on to be heard before the court on the application of a creditor of and for the court to fix and establish the boundaries of the Vol. IT 18 274 THE HOMESTEAD. [ 1061. homestead of said and in the following described real es- tate (here describe the whole tract out of which the homestead is to be carved), and it appearing to the court that due and legal notice has been served of the hearing of said application as directed by the court has been served upon the aforesaid owners of said land, and the court hav- ing heard all of the proofs offered by all of the parties, and being fully advised in the premises, it is hereby ordered that the limits of the boundaries of said homestead are fixed and established as follows: (here insert the finding of the court which must accurately describe the homestead as provided in section 2979 of the code.) This entry must be filed and recorded in the recorder's office. It being perhaps a matter of doubt, as to whether un- der the present law an officer must plat a homestead in any case before proceeding to levy, I have retained the forms applicable to such cases and also referred to the cases touching that matter. 54 1061. Of changing the limits of the homestead. The owner may from time to time change the limits of his homestead by changing the metes and bounds, as well as the record of the plat and description, or may change it entirely or vacate it, but such changes will not prejudice conveyances or liens made or created pre- viously thereto, and no such change of the entire home- stead made without the concurrence of the husband or wife, will affect the rights of the one not concurring or those of the children. 55 The new homestead to the extent in value of the old is exempt from execution in all cases where the old or former homestead would have been exempt, but in no other, nor in any greater degree. 56 A change of home- stead by a judgment debtor from one parcel of laud to another, can not displace or affect the liens of judgments rendered before such change. 57 It has been held that when a judgment debtor changed his homestead from premises on a town lot to a tract of land not exceeding forty acres, and of no greater value than the former, that s^Bradshaw v. Renlck, 90-409; Dewell, 35-170; Marshall v. Ruri- Henderson v. Rainbow, 76-320; ick, 28-487; Sargent v. Chubbuck, Smith v. De Kock, 81-535. 19-37; Thompson v. Rogers, 51-333; 55 Code, Sec. 2981; Pearson v. White v. Kinley, 92-598; Atkinson Minturn, 18-36. v. Hancock, 67-452. ss Code, Sec. 2981; Furman v. 57 Elston v. Robinson, 21-531. 1061.] THE HOMESTEAD. 275 the new homestead was exempt, the lien of the judgment thereon being transferred to the old homestead. 03 Where there is an absolute abandonment of the premises, they become, like other property, subject to be seized and sold under execution. If the homestead is purchased in part with funds derived from the sale of a former one, and partly from other sources, and the new homestead does not exceed in value the old one, the new one will be exempt from debts contracted during and subsequent to the occupancy of the old one. 59 And a reasonable time will be allowed in which to purchase the new home- stead. 60 But where the proceeds of an Iowa homestead are invested in one in another State, and it is afterward sold and the proceeds invested in a third homestead in Iowa, it will not be exempt as against a debt contracted before it was purchased, as the homestead fund by the investment in another State loses its distinctive charac- ter. 61 And when the debtor holding a homestead ex- empt from execution for his debts exchanges the same for other property which he procured to be conveyed di- rectly to his wife, such property did not become subject to the payment of his debts and the conveyance to the wife was not fraudulent. 62 Section 2981 of the code ap- plied. 63 Money arising from the sale of a homestead is not exempt from garnishment, unless the sale was in pursuance of a design to purchase another homestead. 64 And the same is true as to the claims of -creditors gen- erally on the fund arising from the sale of the home- stead. 65 If, however, the proceeds of a homestead are, with the knowledge and consent of the wife, invested in the husband's business, he can not thereafter procure a new homestead which will be exempt from debts al- ready contracted in such business. 66 ss Furman v. Dewell, 35-170; see si Ro.erers v. Raisor, 60-355; Dai- Pearson v. Minturn, 18-36. ton v. Webb, 83-478. s Benham v. Chamberlin, 39-358; 2 Jones v. Brandt, 59-332. Lay v. Templeton, 59-684. 63 Atkinson v. Hancock. 67-452. o Benham v. Chamberlin, 39- ' 64 Huskins v. Hanlon. 72-37. 358; State v. Geddis, 44-537; Cow- Sohuttloffel v. Collins, 67 N. gell v. Warrington, 66-666: Mann W., 397. v. Corrington, 61 N. W., 409. 66 Peninsular Stove Co. v. Roark, 63 N. W., 326. 276 THE HOMESTEAD. [ 1002, 1003. 1062. Of pleading and practice. It is incum- bent on the party relying on the fact that his homestead was procured with the proceeds of a previous homestead and consequently exempt, to establish such fact. The party seeking to subject it to his claim makes a prima facie case by showing that his claim antedates the pur- chase of the homestead. 67 And a prima facie case of abandonment is made when the plaintiff avers that the party has abandoned the homestead and is a non-resi- dent, and a resident of another State, and the burden is on the defendant to set up his intention to return, if he has such, in his answer. 68 The homestead exemption pertains to the remedy, and is regulated by the law of such place. 69 When the surrender of the homestead is voluntary, the burden is on the one claiming the home- stead to show his intention to return. 70 The admission of evidence regarding surrendering the homestead and its effect in a contest between creditors discussed. 71 1063. Of dispute as to what constitutes the homestead How determined. In case of a disagree- ment between the owner and any person adversely in- terested as to whether any lands or buildings are prop- erly a part of the homestead, the sheriff having the exe- cution must, at the request of either party, summon nine disinterested persons, having the qualifications of ju- rors, and the parties, commencing with the owner of the homestead, must in turn strike off one person each until only three of the nine remain. Should either party fail to do so, the sheriff may act for him. These three must then proceed as referees to examine and ascertain all the facts of the case, and must report the same, with their opinion thereon, at the next term of the court from which the execution or other process may have issued. 72 The purpose of this is not to make a selection of a homestead, but to enable the court to de- 7 First Nat'l Bk. v. Baker, 59- ?o Newman v. Franklin, 69-244. 197; Paine v. Means, 65-547. fi Van Bogart v. Van Bogart, BS Orman v. Orman, 26-361. 46-359. ea Helfenstein v. Cave, 3-287. ?2 Code, Sees. 2982-2983. 1064.] THE HOMESTEAD. 277 termine whether certain land, claimed to be exempt, is in fact so. 73 And the section contemplates a case where homestead rights are conceded but there is a contro- versy as to where the line is to be drawn between what is exempt as a part of the homestead and what is not. 74 1064. Of the action of the court, etc. The court to which the report is made may, at its discretion, refer the whole or any part of the matter back to the same, or to other referees selected in the same manner, or as the parties otherwise agree, giving them directions as to the report required of them. 75 The referees should take and subscribe an oath, before proceeding to discharge their duties, which may be in the following form: FORM OF OATH OF REFEREES. Title. ) Venue. J State of Iowa, ) County, j We (here insert names of referees), residents and legal voters in said county, having been duly appointed referees, as provided by law in such cases, do solemnly swear (or affirm) that we will well and faithfully examine and ascertain all the facts in dispute between the parties in the above entitled case, in regard to whether any of the land or buildings levied on (or about to be levied on) by the sheriff under an execution in said cause, are properly a part of the homestead of the defendant there- in, and will make due report to said court at the next term thereof. (It must be signed by all the referees and sworn to.) When the court is sufficiently advised in the case it must make its decision and may, if expedient, direct the homestead to be marked off anew, or a new plat and de- scription to be made and recorded, and may take such further steps in the premises as in its discretion may appear expedient to attain the objects of the statute; it must also award costs as nearly as may be in accordance with the practice observed in other cases. 76 The extent or appurtenances of the homestead as thus established, may be called in question in like manner whenever a 73 White v. Rowley, 46-680; Me- " Code, Sec. 2983. Crackin v. Weitzel, 70-723. 76 Code, Sec. 2983. 74 McCrackin v. Weitzel, 70-723. 278 THE HOMESTEAD. [ 1065. change in value or circumstances justify such new pro- ceeding. 77 These provisions only apply when more than forty acres is claimed as a homestead. 78 1065. Of the occupation of the homestead by the survivor, etc. On the death of either husband or wife, the survivor, whether the owner of the homestead or not, may continue to possess and occupy it until it is otherwise disposed of according to law. 79 But, as has been seen, this right in the widow is that of occupancy alone, the title vesting in the heirs. 80 The right of occu- pancy carries with it the right to control or dispose of the rents and profits. 81 Nor does the marriage of a wife with a second hus- band deprive her of the right conferred, of occupancy and disposing of the rents and profits, or entitle the heirs at law of the first husband to partition. 82 But she can not, in case of such second marriage, when the title was in the deceased husband, abandon, sell, mortgage or convey the homestead; and if she does, the heirs of the deceased are entitled to a partition of it. 83 The surviv- ing husband or wife must elect between the retaining of the homestead and of dower, and the survivor can not have both. 84 Section applied. 85 A judgment against a surviving husband is not a lien on his homestead rights in the real property of his deceased wife, unless he has abandoned the same, nor can he create any valid lien thereon by mortgage. 86 Damages may be allowed the survivor in possession of the homestead for an injury done to her homestead right. 87 The wife's interest in the homestead property is present fixed and substantial, it Code, Sec. 2984. s* Stevens v. Stevens, 50-491; Green v. Farrer, 53-426. Whitehead v. Conklin, 48-478; But- 79 Code, Sec. 2985; Bournes v. terfield v. Wicks, 44-310. Keas, 21-257; Orman v. Orman, 26- ss Burdick v. Kent, 52-583; Brad- 361; Nicholas v. Purczell, 21-265. shaw v. Hurst, 57-745; Mahaffy v. so Johnson v. Gaylor, 41-362; Mahaffy, 63-64; Darrah v. Gun- Stevens v. Stevens, 50-491. ningham, 72-123. si Floyd v. Moser, 1-512. 86 Smith v. Eaton, 50-488; see 82 Nicholas v. Purczell, 21-265; Butterfield v. Wicks, 44-310. Bournes v. Keas, 21-257; Dodds v. * Cain v. C., R. I. & P. R. Co., Dodds, 26-311. 54-255. ss Size v. Size, 24-580; see But- terfield v. Wicks, 44-310. 1066.] THE HOMESTEAD. 279 and generally not affected by any omission, default or neglect of the husband, and within the meaning of a former statute it is real property. 88 1066. Of the election to hold the homestead in lieu of dower. The survivor cannot have both dower and homestead. It is held that the survivor may have a reasonable time in which to make an election whether to retain the homestead or to take the distributive share, and during said time may occupy and possess the homestead and receive the rents and profits thereof. 89 What acts will be treated as sufficient to show an election must depend upon the facts in each case. It is said that occupancy of the realty as a homestead will be considered as an election to hold it as such. 90 An occupancy of the homestead for ten years without making any claim to have dower admeasured is regarded as an election to take the homestead. 91 So continued oc- cupancy as a survivor will be deemed an election, 92 at least until the distributive share of such survivor is set apart. 93 But the survivor cannot be compelled to make an elec- tion until the question of the indebtedness of the estate is determined. 94 Nor will the fact of occupancy alone defeat the survivor's right to a distributive share as un- less the homestead is disposed of the survivor may con- tinue to occupy it. 95 Where under the provisions of a will the widow is en- titled to a life estate which may include the homestead, occupation of it will not be treated as an election to take it in lieu of dower, 96 and the same is true when the oc- cupancy is in accordance with the provisions of a de- vise. 97 ss Adams v. Beale, 19-61; Chase 93 McDonald v. McDonald, 76- v. Abbott, 20-154; Eli v. Gridley, 137; Schlarb v. Holderbaum, 80- 27-376. 394. ss Cunningham v. Gamble, 57- 9* Thomas v. Thomas, 73-657. 46; Egbert v. Egbert, 85-525. 95 Whited v. Pearson, 87-513. o Butterfleld v. Wicks, 44-310. os Hunter v. Hunter, 64 N. W., si Conn v. Conn, 58-747. 656. 92 Holbrook v. Perry. 66-286; ? In re Franke's Estate, 66 N. Stephens v. Hay, 66 N. W., 1048. W., 918; Blair v. Wilson, 57-177. 280 THE HOMESTEAD. [ 10G7. Reference is had to the following cases to determine as to what acts will be held to constitute an election. 98 The homestead right is not extinguished by any act short of a final order setting off the distributive share." The survivor electing to retain the homestead relin- quishes his distributive share, but such relinqtiishment applies only to the one-third in case there are children or other descendants entitled to inherit and not to the ad- ditional portion which the survivor may be entitled to as an heir at law, when there are no children. 1 If a widow is entitled as an heir at law to one-half of her husband's property, the other heirs cannot, in the par- tition of the realty, insist that she include the homestead in that share. 2 If the widow's share is set apart to her she will hold it free from the lien of a judgment which is not prior to the original homestead right. 3 Where the widow elects to occupy the homestead and acquires by inheritance from an heir an undivided share of the reversion, such share of the reversion is subject to execution for her debts. 4 1067. Of the disposal of the homestead. The partition or setting off the distributive share of a survi- vor in the real estate of the deceased is such a disposal of the homestead as is contemplated by section 2985 of the code, but the survivor may elect to retain the homestead for life in lieu of such share in the real estate of the de- ceased. If there be no survivor, the homestead descends to the issue of either the husband or wife, whichever may have held the legal title, according to the rules of de- scent, unless otherwise directed by will, and it will be held by such issue exempt from any antecedent debts of their parents, or their own, except those of the owner thereof contracted prior to its acquisition. 5 as Stevens v. Stevens, 50-491; 3 Briggs v. Briggs, 45-318; Knox Wilcox v. Wilcox, 89-388; Zwick v. v. Hanlon, 48-252. Johns, 89-550. * Strong v. Garrett, 90-100. 99 Hornbeck v. Brown, 91-316. s Code, Sec. 2985; Size v. Size, 1 Smith v. Zuckmeyer, 53-14. 24-580; Dodds v. Dodds, 26-311; 2 Nicholas v. Purczell, 21-265. Lorieux v. Keller, 5-196; Parsons 1068, 1069.] THE HOMESTEAD. 281 When the wife died without issue, seized of a home- stead, which the husband elected to retain, and after- ward abandoned the homestead, he was held entitled to one-sixth of the estate as heir at law. 6 The distributive share of a widow in lands owned by her husband, aside from the homestead, should bear its proportionate share of a mortgage indebtedness thereon made by her hus- band, and in which she joins. 7 The homestead is not liable in the hands of the survivor, or heirs, for funeral expenses, or expenses of the last sickness of the deceased owner. 8 1068. Of sale or devise of homestead. If there be no survivor or issue, the homestead may be sold on execution for the payment of any debts to which it might at that time be subjected, if it had never been held as a homestead. 9 And subject to the rights of the surviving husband or wife, the homestead may be devised as other real estate of the testator. 10 1069. Of the abandonment of the homestead. The question of abandonment hinges largely on the in- tention of the parties, and this must be gathered from the facts in each case. The following acts have been held not to amount to an abandonment: A temporary removal or absence when an intention to return exists. 11 Length of time of absence while not conclusive as to an abandonment may be an important fact in determining the intention to return, especially in the absence of other acts indicating the intention. 12 Stronger proof of abandonment is required when the v. Livingston, 11-104; Bournes v. Orman, 26-361; Davis v. Kelley, Keas, 21-257; Colton v. Wood, 25- 14-523; Morris v. Sargent, 18-90; 43. Bradshaw v. Hurst, 57-745; Shir- s Smith v. Zuckmeyer, 53-14; see land v. Union Nat'l Bk., 65-96; Butt*!rfield v. Wicks, 44-310; Meyer Griffin v. Sheley, 55-513; Zwick v. v. Meyer, 23-359; Burdick v. Kent Johns, 89-550; Repen v. Davis, 72- 52-583. 548; Boot v. Brewster, 75-631; Ben- 7 Trowbridge v. Sypher, 55-352. bow v. Boyer, 89-494; Ayres v. s Knox v. Hanlon, 48-252. Grill, 85-720; Jones v. Blumenstein, a Code, Sec. 2986. 77-361. 10 Code, Sec. 2987. 12 Dunton v. Woodbury, 24-74; 11 Fyffe v. Beers, 18-4; Orman v. Newman v. Franklin, 69-244. 282 THE HOMESTEAD. [ 1069. lien is claimed to have attached during actual occu- pancy, than when it arises when the owner of the prem- ises was not in the actual possession of them. 13 A home- stead may not be abandoned, though the head of the family goes to another State and acquires property there and intends to remove his family there if the family de- sire to retain the homestead as such. 14 A conveyance of the homestead by the husband to the- wife will not be an abandonment. 15 Nor is a conveyance of both to a third person in trust to be reconveyed to the wife. 16 But it might be otherwise if the husband conveyed to a third party, who thereafter conveyed to the wife, the occupancy meantime remaining unchanged. 17 A con- veyance in the form of a deed which is in fact a mortgage securing money borrowed of the grantee will not affect the homestead. 18 In the following cases the facts were held to show an abandonment. Where the wife, holding under a volun- tary conveyance from her husband, which was void for fraud as to creditors, dies, and the husband and children abandon the homestead. 19 Where the owner leaves the premises and acquires a new home. 20 Where he removes with no intention of returning. 21 Absence for two years without manifesting any intention to return and mean- time offering to sell or to trade the property. 22 Where one left the homestead and moved to a town to pursue his profession, with the intention of staying perma- nently if he could make a living. 23 Where the husband abandoned the homestead, became a citizen of another state and remained there for years with his wife and family having no definite time or plan of return. 24 Where the owner of the homestead removed permanently to his is Davis v. Kelley, 14-523. i Gardner v. Baker, 25-343. i-i Savings Bk. v. Kennedy, 58- 20 Davis v. Kelley, 14-523. 454; Lunt v. Neeley, 67-97. 21 Newman v. Franklin, 69-244. is Green v. Farrar, 53-426. 22 Dunton v. Woodbury, 24-74. is Hugunin v. Dewey, 20-368. 23 Kimball v. Wilson, 59-638. IT Jones v. Currier, 65-533. 2* Perry v. Dillrance, 86-424. is McClure v. Braniff, 75-38. 10G9. ] THE HOMESTEAD. 283 new place of residence. 25 Where one removed from his farm to a city and registered and voted in the city after he had made sale of the farm. 26 When the owner di- rected the sheriff to sell the homestead which he had left three years before and began his action to set aside the sheriff's deed five years after it had issued. 27 Where after a sale of a homestead under a foreclosure of a mort- gage, in which the wife had joined, she joined her hus- band in leasing the premises. 28 For other cases relating to this subject. 29 25 Cotton v. Hamil, 58-594. Brandt, 55-221; Van Bogart v. Van 26 Conway v. Nichols, 71 N. W., Bogart, 46-359; Parsons v. Cooley, 183. 60-268; Sibley v. Lawrence, 46-563; 27 Wilson v. Daniels, 79-132. Ditson v. Ditson, 85-276; Woods v. 2s Bradshaw v. Remick, 90-409. Davis, 34-264; Stewart v.' Brand, 29 Stinson v. Richardson, 44-373; 23-477; Leonard v. Ingraham, 58- Painter v. Steffen, 87-171; Givans 406; Baker v. Jamison 73-698. v. Dewey. 47-414; Windle v. . CHAPTER LXVI. OP INJUNCTIONS. Sec. 1070. Object and purpose of injunctions. 1071. Granted to abate nuisances relating to manufacture and sale of intoxicating liquors. 1072. How actions to enjoin nuisances relating to manufacture and sale of intoxicating liquors should be brought. 1073. Of the application in such actions. 1074. When an injunction will be granted generally. 1075. When an injunction will be refused. 1076. Of parties to the action. 1077. How and at what time it may be granted. 1078. Same. 1079. Rules governing the granting of injunctions Powers of the court. 1080. By whom and when a temporary injunction may be granted. 1081. When not granted without notice. 1082. Form and requisites of the petition. 1083. Of the allowance of the writ. 1084. Of Ijpie bond. 1085. Of actions on injunction bonds. 1086. Issuance of the writ. 1087. Of vacation and modification of the injunction, 1088. Of dissolution of the injunction. 1089. Relating to pleading and practice. 1090. Violation of injunction How punished. 1091. Of amendments. Section 1070. Object and purpose of injunctions. A writ of injunction is denned as a "judicial process, op- erating in personam, and requiring the person to whom it is directed to do, or to refrain from doing, a particular thing. In its broadest sense the process is restorative as well as preventive, and may be used both in the enforce- ment of rights and in the prevention of wrongs." 1 i High on Injunctions, Sec. 1; Cooke (Tenn.), 87; 2 Story's McDohogh v. Galloway, 7 Rob. Equity, Sec. 861. (La.) 442; Childress v. Perkins. 284 1071, 1072.] INJUNCTIONS. 285 1071. Granted to abate nuisances relating to the manufacture and sale of intoxicating liquors. The manufacture of any intoxicating liquors, except as permitted by law, is a nuisance, and may be enjoined and abated by suit in equity. 2 So if any person not holding a permit to sell intoxicating liquors, by himself, his clerk, servant or agent, shall, directly or indirectly, sell or give to any person such liquors, the building or erection, or the ground on or upon which such sale, or keeping with intent to sell, use, or give away intoxicating liquors, is carried on, continued or exists, and the furniture, fixtures, ves- sels and contents are declared to be a nuisance, and may be abated by an action in equity. 3 And in case of the mixing of any intoxicating liquors with beer or wine or cider, and the selling of the same by any party, or keep- ing them for sale as a beverage, the buildings and grounds where such liquor is sold, or kept for sale, and the furni- ture, fixtures and vessels, and the contents, are a nuisance and may be abated by an action in equity. 4 The keeping of any intoxicating liquors with intent to sell the same, or permit the same to be sold, in violation of law, the buildings and grounds wherein such liquors are sold or kept for sale, and the furniture, fixtures and ves- sels, and their contents, is a nuisance, and may be abated by an action in equity, 5 and a violation of the law per- mitting pharmacists to sell intoxicating liquors is a nuisance and when it exists may be abated by an action in equity. 6 1072. How actions to enjoin nuisances relating to manufacture and sale of intoxicating liquors should be brought. Such actions may be brought in the name of the State of Iowa, by the county attorney, and it is made his duty, when such nuisance exists, to institute and prosecute an action for its abatement, after he shall have 2 Code, Sees. 2382, 2405. * Code, Sees. 2382, 2405. s Code, Sec. 2405; State v. Way- 5 Code, Sees. 2382, 2405. nick, 45-516; Gray v. Steine, 69-124. e Code, Sec. 2386. Lemen v. Wagner, 68-660; Rad- ford v. Thornell, 81-709. 286 IX JUNCTIONS. [ 10 to received reasonable notice thereof. And any citizen may institute and prosecute such action, in any case, in his own name. 7 1073. Of the application in such actions. If the application for an injunction in such cases be made to the judge or court in vacation, or the court in term time, three days' notice must be given of the hearing, and, at the election of the applicant, the existence of the nuisance may be established by affidavits, depositions or oral testimony, unless the court or judge has other- wise ordered. 8 Notice of the application may be in the following form: NOTICE OF AN APPLICATION FOR AN INJUNCTION TO ABATE NUISANCE. Title, ) Venue, j ip o . ; defendant, or to (names of his attorneys, if known) : You are hereby notified that the plaintiff will, on the day of ( ig , at o'clock a. m., at Iowa, make application to the honorable , judge of the district court of the judicial dis- trict of Iowa, at chambers, on the petition and affidavits, copies of which are attached hereto, for an order for a temporary injunction, enjoining and restraining you, by yourself, agents and servants, from in any man- ner selling, or offering for sale, any intoxicating liquors in your place, in (city or town), Iowa, situated on lot number one, in block number one, in (city or town), in violation of law, and from keeping the same with intent to sell, use or give away, in violation of law, and you can appear at said time, and resist said application, if you desire. Dated, , the , 18. , county attorney, in and for county, Iowa. Code, Section 2405, allowing an injunction to issue to restrain a nuisance relating to illegal sale of intoxicating liquors, is not unconstitutional as depriving a defendant of a right to trial by jury, nor as an attempt to enforce the criminal law by civil action, nor does it become ex post T Code, Sees. 2406, 2405; Littleton Green, 73-688; Craig v. Hasselman, v. Fritz, 65-488; Pontius v. Wine- 74-538; Judge v. Kell, 74-486; brenner, 64-591; Applegate v.Wine- Geyer v. Douglass, 85-93; Maloney brenner, 66-67; Pontius v. Bow- v. Traverse, 87-306; Wood v. Baer, man, 66-88; Shermerhorn v. Web- 91-475; McQuade v. Collins, 61 N. ber, 67-278; Martin v. Blattner, 68- W., 213. 286; Fuller v. McDonald, 75-220; s Code, Sec. 2405. Littleton v. Harris, 73-167; Shear v. 1074. ] IXJUXCTIONS. , 287 facto in its operation. 9 Nor can one in such an action claim that he is about to be deprived of his property with- out compensation, in violation of the constitution of the United States, unless he shows that such property was owned by him, or by those under whom he claims, and used for the sale of intoxicating liquors prior to the enact- ment of the statute of 1855 of this State, which declared the building- or place where prohibited liquors were sold or kept a nuisance, and provided for its abatement. 10 Injunctions granted in these cases are binding through- out the judicial district. 11 If two parties are operating the business both must be made defendants in a proceed- ing to abate the nuisance. 12 As to when an injunction should be granted in such cases. 13 When it should not be granted. 14 1074. When an injunction will be granted gen- erally. An in junction may be granted as an independent remedy in any action by equitable proceedings when such relief would have been granted in equity previous to the adoption of the code; and in all cases of breach of contract or other injury, where the party injured is entitled to maintain, and has brought an action by ordinary proceed- ings, he may, in the same cause, pray and have a writ of injunction against the repetition or continuance of such breach of contract, or other injury, or the commission of any breach of contract or injury of a like kind arising out of the same contract or relating to the same property o Littleton v. Fritz, 65-488; Pon- is Bloomer v. Glendy, 70-757; tius v. Winebrenner, 65-591; Apple- Littleton v. Fritz, 65-488; Judge v. gate v. Winebrenner, 66-67; Pon- Krebs, 71-183; Tibbetts v. Burster, tius v. Bowman, 66-88; Shermer- 76-176; Martin v. Blattner, 68-286; horn v. Webber, 67-278; Martin v. Gray v. Stienes, 69-124; Littleton v. Blattner, 68-286; Jordan v. Circuit Harris, 73-167; State v. Douglass, Court, 69-177; McLane v. Bonn, 70- 75-432; McQuade v. Collins, 61 N. 752; State v. Jordan, 72-377; and W., 213; Hamilton v. Baker, 91- see Radford v. Thornell, 81-709. 100; Carter v. Steyer, 61 N. W., 10 McLane v. Leicht, 69-401. 956; Banner v. Holtz, 74-389; Pear- 11 Code, Sec. 2405; McGlasson v. son v. Int. Distillery, 72-348; Far- Johnson, 86-477; England v. John- ley v. O'Malley, 77-531; Farley v. son, 86-751; see Carter v. Steyer, Hollenfeltz, 79-126. 61 N. W., 956. i* Gray v. Stienes, 69-124; Shear 12 Shear v. Green, 73-688; see v. Green, 73-688; Danner v. Holtz, Pierson v. Int. Distillery, 72-348. 74-389; State v. Ballingall, 42-87; 288 INJUNCTIONS [ or right, and he may also, in the same action, include a claim for damages or other redress. 15 It may be granted in an action for breach of contract, 16 and in some cases when a trespass is threatened, 17 and also where a trespasser commits an irreparable injury and he is insolvent. 18 It may be granted to stay proceed- ings at law either before or after judgment. 19 It may State v. Price, 92-181; State v. Brinkman, 72-698. is Code, Sec. 4354; Elwell v. Greenwood, 26-377; Berger v. Arm- strong, 41-447; Hampson v. Weare, 4-13; Dunham v. Collier, 1 G. Gr., 54; Smith v. Short, 11-523; Givens v. Campbell, 20-79; Crawford v. Paine, 19-172; Way v. Lamb, 15-80; Kirchbaum v. Bridges, 1-14; Lash v. Butch, 4-215; Schricker v. Field, 9-366; Haight v. City of Keokuk, 4-199; Key City G. L. & C. Co. v. Munsell, 19-305; Litchfield v. Polk County, 18-70; Humphrey v. Dar- lington, 15-207; Taggart v. Woods, 20-236; Reno v. Teagarden, 24-144; Cracker v. Robertson, 8-404; Ana- mosa v. Wurzbacker, 37-25; Chi- cago & S. W. R. Co. v. Swinney, 38-182; Brigham v. White, 44-677; Stokes v. Scott County, 10-166; Horton v. Hoyt, 11-496; Connelly V. Griswold, 7-416; Iowa College v. Davenport, 7-213; McMahon v. City of Council Bluffs, 12-268; Musser v. Hershey, 42-356; Hough- am v. Harvey, 33-203; Zorger v. The Twp. of Rapids et al., 36-175; Rood v. Board, etc., 39-444; Spen- cer v. Wheaton, 14-38; Langworth v. City of Dubuque, 13-86; Olm- stead v. Board, etc., 24-33; Will- iams v. Peinny, 25-436; Cattell v. Lowery, 45-478; Gibbs v. McFad- den, 39-371; Ingham v. The C., D. & M. R. Co., 38-669; Richards v. The D. V. R. Co., 18-260; Henry v. The D. & P. R. Co., 10-540; Hibbs v. The C. & S. W. R. Co., 39-340; Holbert v. The St. Louis, K. C. & N. R. Co., 45-23; City of Council Bluffs v. Stewart, 51-385; Littleton v. Fritz, 65-488; Pontius v. Wine- brenner, 65-491; Applegatev. Wine- brenner, 66-67; Pontius v. Bov/- man, 66-88; Shermerhorn v. Web- ber, 67-278; Martin v. Blattner, 68- 286; Morgan v. Miller, 59-481; Dist. Twp. v. Dist Twp., 54-115; Hall v. Grouse, 14-487; Stafford v. Shortreed, 62-524; Hardin v. White, 63-633; Richmond v. The D. & S. C. R. Co. et al., 33-422; Brandriff v. Harrison County, 50- 164; Rice v. Smith, 9-570; Macklot v. City of Davenport, 17-379; Col- lins v. Ripley, 18-129; Sweatt v. Faville, 23-321; Martin v. Davis, 65 N. W., 1001; Thomas v. Farley Mfg. Co., 76-735; Ladd v. Osborne, 79- 93; Trulock v. Merte, 72-510; Tea- bout v. J affray, 74-28; Musch v. Burkhart, 83-301; Graves v. Key City Gas Co., 83-714; Moffit v. Brainard, 92-122; Clayton County v. Herwig, 69 N. W., 1035; Harbach v. D., M. & K. C. R. Co., 80-593; Standard Coal Co. v. Ind. Dist., 73-304; Troe v. Larson, 84-649; Brockman v. Creston, 79-587; Sny- der v. Foster, 77-638; Searle v. Abraham, 73-507; Wood v. Murray, 85-505; Ellison v. Smythe, 75-570. is Elwell v. Greenwood, 26-377; Berger v. Armstrong, 41-447; Macklot v. The City of Davenport, 17-379; Hall v. Grouse, 14-487; Richmond v. D. & S. C. R. Co., 33- 422; Brandriff v. Harrison County, 50-164; Rice v. Smith, 9-570. IT Morgan v. Miller, 59-481; Tru- lock v. Merte, 72-510; Martin v. Davis, 65 N. W., 1001; Ladd v. Osborne, 79-93. is Mills v. Hamilton, 49-105; Bol- ten v. McShane, 67-207; Davis v. Hull, 67-479; City of Council Bluffs v. Stewart, 51-385; Holbert v. The St. L., K. C. & N. R. Co., 45-23: Gibbs v. McFadden, 39-371; Musch v. Burkhart, 83-301; Graves v. Key City Gas Co., 83-714; see Waterloo v. Waterloo St. R. Co., 71-193. i'-> Hampson v. Weare, 4-13; Dun- ham v. Collier, 1 G. Greene, 54; Smith v. Sho; 11-523; Givens v. Campbell, 2U-79; Crawford v. 1074.] INJUNCTIONS. 289 issue to prevent trespass in violation of a mandate of a court, 20 to restrain the making, indorsement or negotia- tion of negotiable paper, or bonds, 21 the sale of land, the sailing of a ship, the transfer of stock, or the alienation of a certain chattel, to prevent the wasting of assets or other property pending litigation; 22 to prevent trustees from assigning a legal estate, or assignees from making a dividend; 23 to prevent the removing out of the jurisdic- tion, marrying or having any intercourse which the court disapproves of, with a ward; 24 to restrain the commission of waste; 25 to protect possession of public lands where there are conflicting entries until an appeal to the secre- tary of the interior is determined, 26 to restrain official action which would be illegal or unlawful; 27 to prevent the obstruction of the outlet of a lake; 28 to suppress the continuance of a public or private nuisance; 29 to prevent infringements of patents and the violation of copy- rights; 30 to restrain the collection of an illegal tax. 31 So one district township may have an injunction to restrain another district township from removing a school house Paine, 19-172; Way v. Lamb, 15-80; man v. Creston, 79-587; Hanson v. Kriechbaum v. Bridges, 1-14; Lash Hunter, 86-722. v. Butch, 4-215; Schricker v. Field, 23 Troe v. Larson, 84-649. 9-366; Haight v. The City of Keo- 29 Horton v. Hoyt, 11-496; Iowa kuk, 4-199; The Key City G. L. & College v. City of Davenport, 7- C. Co. v. Munsell, 19-305; Taggart 213; Coates v. City of Davenport, v. Wood, 20-236; Reno v. Teagar- 9-227; McMahon v. City of Council den, 24-144; Crocker v. Robinson, Bluffs, 12-268; Musser v. Hershey, 8-404; Anamosa v. Wurzbacker, 37- 42-356; Ewell v. Greenwood, 26- 25; Brigham v. White, 44-677; 377; Hougham v. Harvey, 33-203; Ramsdell v. Tama Water Power Bushnell v. Robeson, 62-540; Mill- Co., 84-484; Keokuk & N. W. R. hiser v. Willard, 65 N. W., 325. Co. v. Donnell, 77-221. so 2 Story Eq. Jur. Sees. 930 to 20 Ten Eyck v. Sjoburg, 68-625. 959; Eden on Inj., Chap. 1, pp. 1 21 Stokes v. Scott County, 10-166; and 2. Hull v. County of Marshall, 12-142; si Zorger v. The Twp. of Rapids, Spencer v. Wheaton, 14-38. 36-175, and cases cited; Rood v. 22 Eden on Inj., Chap. 1, pp. 1 Board Sup., etc., 39-444; Spencer v. and 2; Story Eq. Jur., Sec. 872. Wheaton, 14-38; Langworthy v. 23 Eden on Inj., Chap. 1, pp. 1 City of Dubuque, 13-86; Litchfield and 2; Story Eq. Jur., Sec. 872. v. Polk County, 18-70; Olmstead v. 2* 2 Story Eq. Jur., Sec. 872. Bd. of Sup., 24-33; Williams v. 25Cowles v. Shaw et al., 2-496; Peinny, 25-436; Cattell v. Lowery, see Wilson v. Hughell, Mor., 383; 45-478; The Iowa, F. & L. C. Ry. Ellison v. Smythe, 75-570. Co. v. Cherokee County, 37-483; 26 Wood v. Murray, 85-505. The Iowa Ry. L. Co. v. Story Coun- 27 Searle v. Abraham, 73-507; ty, 36-48; Standard Coal Co. v. Ind. Snyder v. Foster, 77-638; Brock- Dist., 73-304. Vol. 1113 290 INJUNCTIONS. [ 1074. from the territory of the former. 32 So the writ may issue to enjoin a road supervisor from interfering with fences, hedges, watercourses and the like; 33 to prevent a railroad company from condemning lands while pretending to want them for a use for which they were authorized to condemn, when, in fact, they wanted the lands for a pur- pose for which they could not legally condemn them; 34 to restrain collection of a tax voted to a railroad com- pany after such company has transferred its road, in pursuance of a purpose entertained from the beginning of which public notice was given the voters before elec- tion; 35 to restrain a public officer from the commission of an act which would be a public wrong; 36 to restrain the diversion of a street to objects and uses inconsistent with those for which it was granted, 37 and a railroad company may be enjoined from entering on and using land con- demned by them for right of way, unless they pay the damages awarded. 38 It will be granted to enjoin the enforcement of a judg- ment void for want of jurisdiction; 39 and to restrain a multiplicity of suits; to stop the progress of vexatious litigation; 40 to restrain the opening or vacation of a high- way; 41 to restrain the operation of a railway over the streets of a city where it has not paid damages to the abutting property owners; 42 to restrain the wrongful maintenance of a drain which casts an unusual amount of surface water upon one's premises. 43 A taxpayer and citizen may maintain an action to en- join the issuance by the county auditor of a warrant in 32 Dist. Twp. v. Dist. Twp., 54- Co., 10-540; Hibbs v. The C. & S. 115. W. R. Co., 39-340. 33 Bolton v. McShane, 67-207. 39 Connell v. Stelson, 33-147; see s* Forbes v. Delashmutt, 68-164. Hardin v. White, 63-633. 86 Blunt v. Carpenter, 68-265. 40 2 Story Eq. Jur., Sees. 901, 36 Collins v. Ripley, 8-129; Han- 902, 905, 906, 958. son v. Hunter, 86-722; Brockman 41 Moffit v. Brainard, 92-122; v. Creston, 79-587; Snyder v. Fos- Clayton County v. Herwig, 69 N. ter, 77-638. W., 1035. ST Ingham v. The C., D. & M. R. *2 Harbach v. D., M. & K. C. R. Co., 38-669. Co., 80-593. ss Richards v. The D. V. R. Co., Holmes v. Calhoun County, 66 18-260; Henry v. The D. & P. R. N. W., 145. 1075.] IX JUNCTIONS. 291 payment of a refund of taxes illegally ordered by the board of supervisors. 44 And the statute specially authorizes the issuance of an injunction when application is made to vacate or modify a judgment; 45 to restrain the foreclosure of a chattel mortgage by notice and sale; 46 to enjoin the erection or continuance of a nuisance; 47 and it will lie to restrain the collection of taxes levied without authority of law; 48 to restrain acts likely to cause irreparable injury in certain cases; 49 to restrain a judgment creditor living in this State, from subjecting to the payment of his judgment, in the courts of another State, the exempt wages of the debtor due him from a railroad company doing business in both States; when the judgment debtor is also a resi- dent of this State; 50 to restrain payment of more than a school house is reasonably worth to a contractor to whom the directors are about to pay the contract price, when the building fails to conform to the terms of the con- tract. 51 1075. When an injunction will be refused. In the following cases it has been held that a writ of in- junction would be refused: Where a creditor having a lien on real estate of his debtor, before obtaining judg- ment sought to restrain the sale of the same. 52 When it is sought to determine the right to a public office or franchise. 53 When it is sought to enjoin collection of taxes for mere irregularities in the assessment or where 44 Hospers v. Wyatt, 63-264. * Olmstead v. Bd. of Sup., etc., 45 Code, Sec. 4098. 25-33; The I., F. & S. C. Ry. Co. v. 46 Code, Sec. 4283; Hamlin v. Cherokee County, 37-483; The I., Parsons, 33-207; Braitch v. Gue- R. L. Co. v. Story Co., 36-48; Zor- lick, 37-212; Treanor v. Sheldon ger v. The Twp. of Rapids et al., Bank, 90-575. 36-175, and cases cited, and Stand- *7Ewell v. Greenwood, 26-377; ard Coal Co. v. Ind. Dist, 73-304. Bills v. Belknap, 36-583; Finley v. 49 Code, Sec. 4356. Hershey, 41-389; State v. Kartee, so Teager v. Landsley, 69-725; 35-221; Code, Sec. 4302; Shiras v. Hager v. Adams, 70-746. Olinger, 50-571; Baker v. Bohan- si Carthan v. Lang, 69-384. nan, 69-62; Miller v. Webster City, 52 Buchanan v. Marsh, 17-494, 62 N. W., 648; Trulock v. Merte, 72- and cases cited. 510; Millheiser v. Willard, 65 N. es Cochran v. McLeary, 22-75. W., 325. 292 INJUNCTIONS. [ 1075. an erroneous assessment works no injury. 54 One who is not injured by the fencing up of a street can not restrain its enclosure. 55 Where one sells his business and good will, and enters into bond not to engage in the same busi- ness at the same place. 56 Facts not warranting an in- junction in aid of landlord's lien. 57 The holder of a senior lien on real estate is not entitled to an injunction to re- strain a sale of property for satisfaction of junior lien. 58 So one holding a mortgage on chattels can not have an in- junction to restrain sale of same under a senior mortgage on the ground that the property is not covered by such senior mortgage. 59 And in some cases it will not be granted to delav execution on a judgment. 60 Nor will it lie to restrain the collection of a tax for a new school house on the ground that the district has a house, when it is not shown that the district does not need a new one; and after the house is built, and tax voted, a taxpayer can not restrain its collection on the grounds that the board did not consult with the county superin- tendent, and no proposals were invited, and the work was not let to lowest bidder, and no bonds were required of the contractors. 61 So one failing to show an interest in lands sold for taxes can not maintain action to restrain the county treasurer from executing a deed to the pur- chaser. 62 Nor will it be granted to restrain the execu- tion of a judgment regular on its face, when it is not shown that there is a good defense to the claim. 63 Nor to restrain an execution on a judgment, or declare the same invalid because of a defect in the action in which it was rendered, of which plaintiff had no knowledge at B* Patterson v. Baumer, 43-477; B6 Stafford v. Shortreed, 62-524. The C. R. & M. R. R. v. Carroll 57 stibbs v. Anger, 65-318; Mil- County, 41-153; Conway v. Younk- ner v. Cooper, 65-190. in, 28-295; The I. R. L. Co. v. Car- ** Wiedner v. Thompson, 66-283. roll County, 39-151; Same v. Sac B9 Rankin v. Rankin, 67-322. Co., 39-124; The S. C. & St. Paul eo Baker v. Ryan, 67-708. R. Co. v. The County of Osceola, i Casey v. The Ind. Dist. of 45-168; Wilson v. Cass County, 69- Nutt, 64-659. 147. 62 Johnson v. Brett, 64-162. BB Prince v. McCoy, 40-533. s Taggart v. Wood, 20-236. 1076.] INJUNCTIONS. 293 the time it was pending. 64 Nor to interfere with pro- ceedings of forcible entry and detainer, when there is no allegation of fraud, mistake, accident or surprise. 65 It will not lie to restrain the board of supervisors from act- ing in a matter over which they have exclusive juris- diction. 66 So when by agreement of parties a judgment is to be paid within a time fixed, and the judgment cred- itor before that time expires issues execution, the judg- ment debtor can not enjoin proceedings under the execu- tion without first offering to pay the judgment in accord- ance with the terms of the agreement. 67 Nor will it be granted when the party has a plain, speedy and adequate remedy at law, 68 nor where an injunction has already been granted to attain the same object. 69 1076. Of parties to the action. The lessor of a building in which intoxicating liquors are sold may be made a party defendant. 70 So one who is about to re- ceive conveyance of land in consummation of a con- spiracy to defraud the true owner, may be made a party defendant, and in such a case it is proper to make the county recorder a party defendant to prevent his record- ing the conveyance; but no judgment for cost should be rendered against him. 71 So when parties are numer- ous and it is impracticable to bring them all before the court, and they have a common interest in the subject of the litigation, they holding under a conveyance which de- fendants fraudulently seek to defeat, one of them may prosecute an action to enjoin the consummation of the fraud for the benefit of all. 72 Where the doing of certain work under the direction of a city council is enjoined, e*Wilsey v. Maynard, 21-107. ty, 77-226; Hanson v. Hunter, 86- es Lamb v. Drew, 20-15. 722. 6 Luce v. Feusler, 85-596. 69 Dickenson v. Eichorn, 78-710. 6T Anamosa v. Wurzbacher, 37- Martin v. Blattner, 68-286. 25. Palo Alto Bkg., etc., v. Mahar, ss City of Waterloo v. Waterloo 65-74; see Brandirff v. Harrison Street R. Co., 71-193; Thomas v. County, 50-164. Farley Mfg. Co., 76-735; Rockwell "2 p a io Alto Bkg., etc., v. Mahar, v. Bowers, 88-88; Ridley v. Dough- 65-74; Brandirff v. Harrison Coun- ty, 50-164. 294 INJUNCTIONS. [ 1077, 1078, 1079, the one employed to do the work is a proper party de- fendant 73 1077. How and at what time it may be granted. -The injunction may be applied for and granted as an in- dependent means of relief, or as auxiliary to other pro- ceedings; 74 and it may be either a part of the judgment rendered in the action, or it may, if proper grounds there- for are shown, be granted by order of the court or judge at any stage of the case before judgment, and in the lat- ter case will be known as a temporary injunction. 75 1078. Same. When it appears by the petition, which must be supported by affidavit, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission, or continuance, of some act which would produce great or irreparable injury to the plaintiff, or where during liti- gation it appears that the defendant is doing, or threat- ens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights, or respecting the subject of the action, and tending to ren- der the judgment ineffectual, a temporary injunction may be granted to restrain such act. It may also be granted in any case where it is specially provided by statute. 76 1079, Rules governing the granting of injunc- tions Powers of the court. In an action at law a party applying for a writ of -injunction need not bring himself within the rules and usages of a court erf chancery. It is sufficient if he comply with the statute. 77 The pro- visions of the statute authorizing the issuance of an in- junction in law actions, do not confer on law courts, gen- eral or special chancery jurisdiction, or power to grant new remedies beyond that of issuing and enforcing an injunction against the repetition or continuance of breaches of contract, or other injury, which, under the TS Bush v. Dubuque, 69-233. R. Co. v. Cedar Falls & M. R. Co., 74 Code, Sec. 4354. 76-702; Price v. Baldauf, 82-669. 75 Code, Sec. 4355. 7 ? Buchanan v. Marsh, 17-494; 76 Code, Sec. 4356; Zorger v. Hall v. Crouse, 14-487. Twp. of Rapids, 36-175; D. & S. C. 1080.] INJUNCTIONS. 295 statutes, authorize the issuance of the writ. 78 An in- junction should not be granted where asked as auxiliary relief by a motion without verification or bond. 79 Nor should it issue in aid of quo warranto proceedings brought in the name of the State. 80 1080. By whom and when a temporary injunc- tion will be granted. A temporary injunction may be granted by the court, or judge thereof, in which the action is pending, or is to be brought; or by any judge of the dis- trict court of such district, by a superior court in the proper county, and by any judge of the supreme court, or by a judge of any other district court But in causes where an action is pending, and the writ is applied for to effect the subject-matter of such action, it can only be granted by the court, or judge thereof, in which such action is pending. Nor will it be granted by any other judge of the district court of such district, or by a superior court, unless it satisfactorily appears by affidavit, that the court, or judge thereof, in which the action is brought, can not, for want of time, sickness or other disability, hear the same, or that the residence of the judge is incon- venient, or that it is for some sufficient reason imprac- ticable to make the application to him. Nor will it be granted by any supreme judge, or by a judge of any other district court, unless it be made satisfactorily to appear to such judge by affidavit, that the application can not, for some sufficient reason, be made to either the court, or judge, in which the action is pending, or to some other district judge of that district, if there be any, or to a superior court. 81 The supreme court has no power to grant any injunction upon original proceedings. 82 The writ may be granted in vacation; and by vacation is meant at any time when the court is not actually in ses- sion, and it is not restricted to the time between terms. 83 TS Richmond v. Dubuque & S. C. si Code, Sec. 4357; Cooney v. R. Co., 33-422. Moroney, 45-292. 79 Pendleton v. Laub, 64 N. W., ** Reed v. Murphy, 2 G. Greene, 653. 568. so State v. Simpkins, 77-676. 83 Thompson v. Benepe, 67-79; Code, Sees. 4357, 4362. 296 INJUNCTIONS. [ 1081, 1082. No injunction will be granted by a judge, after the appli- cation therefor has been overruled by the court; nor by a court or judge, when it has been refused by the court, or judge thereof, in which the action is brought. A judge refusing an injunction must, if requested by either party, give him a certificate thereof. 84 The refusal to grant a temporary injunction will not prevent the issuance of an injunction on a subsequent application presenting a dif- ferent case. 85 If the order is made by the court, the clerk must make an entry therein in the court record, and issue the order accordingly. If made in vacation, the judge must indorse said order upon the petition. 86 But this requirement is directory only, and the order may be made on a separate paper. 8T 1081. When not granted without notice. An in- junction will not be granted against a defendant who has answered, unless he has had notice of the application. 88 An injunction to stop the general and ordinary business of a corporation, or the operations of a railway, or of a municipal corporation, or the erection of any building, or other work, or the board of supervisors of any county, or to restrain a nuisance, can only be granted upon reason- able notice of the time and place of the application to the party to be enjoined, nor can any temporary writ of in- junction be allowed by any judge during term time, unless the petition is filed with the clerk and entered upon the calendar of that term, and if granted the order allowing it must also be entered. 89 The notice required by the statute is such notice as the court to whom the applica- tion is made direct, and the court may require notice of the application to be given in any case in which he may deem it proper. 1082. Form and requisites of the petition. The 84 Code, Sec. 4360. 87 Jordan v. Circuit Court, 69-177. ss Graves v. Key City Gas Co., ss Code. Sec. 4358. 83-714. 89 Code, Sec. -359; Hughes v. se Code, Sec. 4362. Eckerson, 55-641; Johnston v. C., M. & St. Paul Ry. Co., 58-537. 1082.] INJUNCTIONS. 297 petition must be sworn to. 90 It must conform to the re- quirements of a petition in equity, 91 and state the neces- sary facts showing plaintiff is entitled to the relief sought. The following forms may be changed to conform to the facts in each case: FORM OF PETITION FOR INJUNCTION TO ABATE NUISANCE RE- LATING TO THE SALE OF INTOXICATING LIQUORS. ! Title, ) Venue, j Par. 1. This action is instituted and prosecuted in the name of (name of party complaining) for the abatement of a nuisance. The said (name of the party complaining) complaining of the defendant herein, shows to the court: Par. 2. That said (name of party complaining) prosecutor, is now and for (insert number) years past has been an actual resident, and citi- zen of county, Iowa, and as such is interested in the peace, wel- fare and good order of the inhabitants of said county. Par. 3. That the defendant in the county and State aforesaid has established, and is using, keeping and maintaining, a building, situated on lot No. in block No. in the town (or city) of for the sale of intoxicating liquors as a beverage in violation of law, and as a place for the keeping of such intoxicating liquors, with intent to sell the same as a beverage in violation of law. Par. 4. That on and after the day of , 18 , and prior to the commencement of this action, the said defendant did illegally sell intoxicating liquors, to wit, whisky and brandy, at the place aforesaid, to the following named persons, viz.: To on the day of 18, ; to on the day of , 18 (here insert statement of all sales relied on as il- legal), and to numerous other persons whose names are unknown to the prosecutor herein. Par. 5. That the defendant at the place aforesaid and from the day of , 18 , until the day of 18 , has owned and kept in his building aforesaid intoxicating liquors for the purpose, and with the intent on his part to sell the same therein contrary to law. Par. 6. That unless restrained by this court, the said will continue at said place to illegally keep for sale, and sell, intoxicating liquors, and said building will continue to be a nuisance to the irrepara- ble injury of the plaintiff, this prosecutor, and the citizens of said county. Wherefore plaintiff prays that said nuisance may be abated and enjoined. That said defendant be enjoined by himself, agents or servants from in any manner selling in violation of law, or keeping for sale with intent to sell in violation of law, any intoxicating liquors in said building or any part thereof; that a temporary injunction issue in so Code, Sec. 4356. 91 See chapter on Petition. 298 INJUNCTIONS. [ 1082. accordance with this prayer and that on final hearing said injunction be made perpetual, and for such other relief as may be deemed equitable in the premises, and for costs, including a reasonable attorney's fee. , attorney for plaintiff. (Add verification.) FORM OF PETITION FOR INJUNCTION TO RESTRAIN JUDICIAL SALE. Title, Venue .1 The plaintiff states: Par. 1. That he is the owner in fee simple of the following described real estate, to wit (here describe the land). Par. 2. That on the day of A. D. 18, the defendant, , obtained a judgment in the (name of the court where the Judg- ment was rendered), against for dollars and costs. Par. 3. That an execution has been issued on said judgment, at the instance of the said , and placed in the hands of the said , who is the acting sheriff of county, Iowa, a copy of which is here- to annexed, marked exhibit "A," and made part hereof. Par. 4. That said defendant, , on the day of A. D. 18 , under said writ of execution, levied upon the real estate above described as the property of said , and has advertised the same for sale on said execution; a copy of the notice of sale is hereto annexed, marked exhibit "B," and made part hereof. Par. 5. That the said judgment is not, and at no time has been, a lien upon said real estate, or upon any part thereof, or upon any interest therein. Par. 6. That a sale of said property under said execution would create a cloud upon the plaintiffs title thereto, and the plaintiff is and will be remediless at law to remove such cloud. Wherefore, the plaintiff prays that a temporary injunction be issued to restrain said execution sale, and enjoining and restraining said plain- tiff from enforcing said judgment against said real estate, or any part thereof; that said judgment be decreed to be no lien on said real estate, and that on final hearing said injunction be made perpetual, and for such other and further relief as shall be adjudged equitable in the prem- ises and for costs. , attorney for plaintiff. (Add the usual verification, and annex the exhibits referred to in the petition.) In case a mortgagor files his petition in equity, and seeks by injunction to restrain a sale under the mort- gage, admitting that something is due thereon, he must plead a tender of, and offer to pay the amount due, be- 1083.] INJUNCTIONS. 299 fore he can have an injunction. 1 The petition must show that plaintiff has no adequate remedy at law, 2 and, as has been already stated, if it is sought to restrain the collec- tion of a judgment, the petition must show that the plain- tiff has a good defense to the action, or that a new trial would result differently. 3 He should show that injustice was done him, and that he could not have availed himself of his defense in a court of law, or that he has been pre- vented from so doing by fraud or accident, and through no fault or negligence on his part. 4 1083. Of the allowance of the writ. If the order allowing the writ is made in term time during a session of the court, the clerk must make an entry thereof on the record and issue the order; if made in vacation the judge must indorse the order upon the petition. 5 The judge must fix the penalty of the bond so as to be twice the prob- able amount of liability to be thereby incurred. 6 The court or judge, before granting the writ, may, if deemed advisable, allow the defendant an opportunity to show cause why such order should not be granted, 7 and if the court so orders, he will fix the time and place of hearing and require the plaintiff to serve notice on de- fendant. Such notice may be in the following form: FORM OF NOTICE OF HEARING OF APPLICATION FOR AN IN- JUNCTION. Title, ) Venue. ) To Sir: You are hereby notified that the above named plaintiff on the day of , 18 , filed in the clerk's office of the (name of court) his petition claiming (here state in general terms the nature of the ac- tion and the remedy sought) ; that said plaintiff has applied to the court (or judge) for an order for a temporary injunction as prayed in said pe- tition, and that the (court or judge) will hear said application on the 1 Stringham v. Brown, 7-33; Code, Sec. 4362. Sloan v. Coolbaugh, 10-31. Code, Sec. 4366; Hardin v. 2 Cowles v. Shaw, 2-496 (Cole's White, 63-633. Ed.); see cases cited. f Code, Sec. 4367; Curtis v. Crane, s Way v. Lamb, 15-79. 38-460. * Shricker v. Field, 9-366; John- son v. Lyon, 14-431. 300 ix JUNCTIONS. [ 1084. (state the time fixed) at (state place of hearing) when and where you may appear and show cause against said application if you think proper. (Signature of plaintiff or his attorney.) If on said hearing (or on reading the petition without having a hearing thereon) the court or judge order an in- junction to issue, such order may be as follows: FORM OF ORDER ALLOWING INJUNCTION. State of Iowa, ) County, f Upon reading the within petition (or hearing the parties) It Is ordered: That the writ of injunction therein prayed do issue, upon the filing of a bond in the office of the clerk of the court named in the peti- tion, conditioned as required by law, in the penalty of - dollars, with sureties to be approved by said clerk. Dated this day of , 18. , judge of (name of court). 1084. Of the bond. No injunction can issue (ex- cept to restrain nuisances relating to the manufacture and sale of intoxicating liquors), until a bond be filed in the office of the clerk of the court in a penalty which has been fixed in the order directing the writ to issue, with sureties to be approved by the clerk, and conditioned for the payment of all damages which may be adjudged against plaintiff, by reason of the injunction. 8 When proceedings in a civil action, or on a judgment, or final order, are sought to be enjoined, the action must be brought in the county and court in which such action is pending, or the judgment or order was obtained, unless such judgment or final order is obtained in the supreme court in which case the action must be brought in the county and court from which the case was appealed; and in an action to enjoin the proceedings in a civil action, or on a judgment or final orderthe bond must be further con- ditioned to pay such judgment or comply with such final order, if the injunction is not made perpetual; or to pay s Code, Sec. 4363; Reece v. Leacox, 59-42; Hibbs v. Western North way, 58-187; Carroll County Land Co., 81-285. V. I. R. L. Co., 53-685; Towle v. 1084.] INJUNCTIONS. 301 any judgment that may be ultimately recovered against the party obtaining the injunction, on the cause of action enjoined. 9 If the judgment is void by reason of want of notice an action to cancel it may be brought in any court of competent jurisdiction. 10 The bond may be in the fol- lowing form : FORM OF INJUNCTION' BOND. Know all men by these presents: That we , principal, and and , sureties, are held and firmly bound unto in the penal sum of dollars, lawful money of the United States, well and truly to be paid to the said and to his heirs, executors and assigns. The condition of the above obligation is such that whereas, the said has this day filed (or the exact day) in the office of the clerk of the district court of the State of Iowa, in and for county, a petition praying the issuance of an in- junction to restrain the sale of the following described real estate, to wit (here describe the premises), which on the day of A. D. 18 , was levied upon by the said - , the acting sheriff of county, under and by virtue of an execution issued from (name of the court), in favor of the said , and against one ; and whereas, on the day of A. D. 18 , the Hon. , judge of (name the proper court), made an order on said petition allowing said writ of injunction upon (here recite the terms of the order of allowance). Now, therefore, if the said shall and will pay all the damages which may be adjudged against him by reason of such injunction (if pro- ceedings in a civil action, or on a judgment or final order, are sought to be enjoined, then add the following: "And will also pay the said judg- ment," if one has been entered; if it is an order, say, "will comply with said order, if the injunction is not made perpetual;" if the action is pending say, "will pay any judgment that may be ultimately recovered against said plaintiff") : then this obligation to be void, otherwise to be and remain in full force and virtue. Dated this day of , 18. , principal, ' j. sureties. (Add justification.) The clerk may require the sureties to justify as in other cases, and must indorse upon the bond his approval of the sureties, and mark the bond filed. It is in the power Code, Sees. 4364, 4365; Davis v. 622; Hardin v. White, 63-633; Phe- Bonar, 15-171; Lcckwood v. Kitter- Ian v. Johnson, 80-727. ingham, 42-257; Anderson v. Hall, 10 State Ins. Co. v. Waterhouse, 48-346; Grattan v. Matteson, 51- 78-674; Phelan v. Johnson, 80-727. 302 INJUNCTIONS. [ 1085. of the court, in case the litigation is protracted, to re- quire an additional bond for further security to meet such contingency. 11 1085. Of action on injunction bonds. Any per- son for whose security an injunction bond must have been intended may maintain an action thereon, even though it be not payable to such person. 12 An injunction bond is to secure such damages as may be adjudged against the obligor in an action brought to determine whether any damages have been sustained a question which can not be settled in the injunction case; the value of the attor- ney's services in procuring a dissolution of the injunction is an element of such damages. 13 And no attorney's fees are recoverable for procuring affidavits on motion to dis- solve an injunction when the writ was granted on an insufficient petition. Nor can attorney's fees be allowed for services in the supreme court on an appeal from an order of dissolution. 14 In an action on the bond services of attorneys in securing a dissolution of the injunction may be recovered but not for defending the entire case. 15 Attorney's fees may be recovered when the injunction was the only relief demanded. 16 When defendant on filing his answer averred he did not intend to do the act enjoined, and moved for a dissolution of the injunction, it was held that it appeared that he had not been damaged, and though the motion had been sustained, he could not re- cover on the bond the expense incurred by him in procur- 11 Crawford v. Paine, 19-172. 113; Cedar Rapids, I. F. & N. R. 12 Code, Sec. 3467; Van Gorder v. Co. v. Cowan, 77-535. Lundy, 66-448, and see Pursley v. is Fountain v. West, 68-380. Hayes, 22-11; Garretson v. Reeder, 14 Elwood Mfg. Co. v. Rankin, 23-21; Sheppard v. Collins, 12-570; 70-403. Huntington v. Fisher, 27-276; IB Behrens v. McKenzie, 23-333; Moorman v. Collier, 32-138; Mor- Langworthy v. McKelvey, 25-48; gan v. Long. 29-434; Strunk v. Leonard v. Capital Ins. Co., 70 N. Ocheltree, 11-158; State v. Freder- W., 629; Carroll County v. Iowa R. icks, 8-553; Latham v. Brown, 16- L. Co., 53-685. 118; Bessinger v. Dickerson, 20- i Thomas v. McDonald, 77-301; 260; Rowley v. Jewett, 56-492; Bullard v. Harkness, 83-373; Colby Baker v. Bryan, 64-561; Jordan v. v. Meservy, 85-555; Reece v. North- Kavanaugh, 63-152; Wells v. Stem- way, 58-187; Ford v. Loomis, 62- back, 59-376; Allen v. Pratt, 79- 586. 1086.] INJUNCTIONS. 303 ing the dissolution of the injunction, 17 and an action on an injunction bond will not lie until after final hearing on the merits and not on dissolution, on motion before final hearing. 18 In an action on an injunction bond plain- tiff makes a prima facie case by showing the dissolution of the temporary injunction and the dismissal of the or- iginal suit. The burden is on defendant to show that the injunction rightfully issued. 19 On application for an in- junction a hearing was had and a temporary injunction granted, afterwards a supplemental petition was filed and a temporary injunction granted ex parte, after which defendant filed a motion to dissolve both injunctions. It was held that the hearing on the first petition was not equivalent to a hearing on a motion to dissolve or modify under Code Section 4371. 20 1086. Issuance of the writ. After the allowance of the writ, and the filing of a bond as heretofore stated, the clerk will issue it as follows: FORM OF WRIT OF INJUNCTION. The State of Iowa. To (name of the defendant or defendants), defendant (or defendants). Whereas - , as plaintiff, has this day filed in the office of the clerk of the district court, of the State of Iowa, in and for county, a petition duly sworn to, making and defendants therein, and praying that they be restrained from (state the acts sought to be en- joined). And whereas, the Hon. , judge of (name of court), has this day made an order allowing said writ of injunction to issue upon the filing of a bond, with sureties, pursuant to said order. And where- as, said order has been complied with, and such bond filed, and sureties approved: Now, therefore, you, the said and , defendants as afore- said, are hereby strictly enjoined and restrained from (here set out the acts sought to be enjoined at length), until the further order of our dis- trict court in the premises. And this injunction you must strictly ob- serve under the penalties of the law. Witness , clerk of said court, with the seal thereof hereto af- fixed, this day of A. D. 18. [Seal.] clerk - IT Bank of Monroe v. Gifford, 70- i Findlay v. Carson, 66 N. W., 580. 759. is Bk. of Monroe v. Gifford, 65- 20 Hinkle v. Saddler, 66 N. W., 648. 766. 304 INJUNCTIONS. [ 1087. The service must be made by reading the original to de- fendants, and giving each of them a copy, and as in all cases, the return should show the time and manner of ser- vice. When the sheriff is a party to the action, the writ should be served by the coroner of the county. 21 1087. Of vacation and modification of the injunc- tion. If the order is granted without allowing the de- fendant to show cause, he may, at any time before the next term of court, apply to the judge who made the or- der to vacate, or modify it, or he may make application to the judge of the court in which the action is pending. 22 Such application must be with notice to the plaintiff and upon the ground that the order was improperly granted, or it may be founded on the answer of defend- ants and affidavits, and in the latter case the plaintiff may fortify his application by counter affidavits and have reasonable time therefor. When relief is sought by injunction against fraud, which is the gravamen of the bill, the court will continue the injunction, though the defendant has fully answered the equity set up. 23 The judge must decide the matter at once, unless good cause is shown for delay. But the vacation of the order will not prevent the action from proceeding, if anything be left to proceed upon, 24 but only one motion to dissolve or modify an injunction upon the whole case will be al- lowed. 25 The motion to vacate may be in the following form: MOTION TO VACATE OR MODIFY INJUNCTION. Title, ) Venue. ) The defendant in the above entitled action moves the court to va- cate (or modify, as the case may be) the injunction herein granted, be- cause: 21 Code, Sec. 513. & St. Paul Ry. Co., 58-537; Walker 22 Code, Sec. 4368; Palo Alto Bkg. v. Stone, 70-103. etc., v. Mahar, 65-74. 2-4 Code, Sec. 4370. 23 Code, Sec. 4369; Huskins v. 25 Code, Sec. 4371; Hinkle v. McElroy, 62-508; Johnston v. C., M. Saddler, 66 N. W., 765. 1088.] INJUNCTIONS. 305 1. On the face of the petition, the order for an injunction was im- properly granted. 2. (State any other ground, or grounds, upon which the motion is based.) , attorney for defendant. 1088. Of dissolution of the injunction. The de- fendant may move to dissolve the injunction either before or after the filing of the answer. 26 Where the equity of the petition is admitted, or not denied, and the answer sets up new matter in avoidance, or contains matter amounting to a defense, it is equivalent to a denial of plaintiff's equities, and the injunction should be con- tinued till final hearing; and so it should where fraud is the gravamen of the petition. 27 But where motion to dissolve is made after an answer is filed, which plainly and without evasion denies in substance all the facts re- lied on in the petition, the injunction will be dissolved, unless there are circumstances making the case an excep- tion, as that irreparable mischief will result from a disso- lution. 28 But an order dissolving an injunction will not operate to dismiss the action. 29 A temporary injunction, granted by a judge in vacation, is not dissolved at the next term by the failure to procure an order making it perpetual. 30 The motion for dissolution should state specifically the grounds on which it is asked, or it will not be considered. 31 The motion for dissolution may be in the following form: MOTION TO DISSOLVE AN INJUNCTION. Title, Venue. The defendant in the above entitled action moves the court to dis- solve the injunction herein granted, because: 26 Code, Sec. 4361; Taylor v. 23 Taylor v. Dickinson, 15-483; Dickinson, 15-483. Stevens v. Myers, 11-183; Anderson 27 Fargo v. Ames, 45-494; Shriek- v. Reed, Id. 177; Russell v. Wilson, er v. Field, 9-366; Judd v. Hatch, 37-377. 31-491; Huskins v. McElroy, 62- 29 Massie v. Mann, 17-131; 508; Hayes v. Billings, 69-387; Waters v. Fredericks, 11-181; Rus- Stewart v. Johnson, 44-435; Walk- sell v. Wilson, 37-377. er v. Stone, 70-103; Burlington, C. so Curtis v. Crane, 38-459. R. & N. R. Co. v. Dey, 82-312. si Hall v. Grouse, 14-487. Vol. H20 306 INJUXCTIOXS. [ 1089. 1. The answer of the defendant plainly and without evasion denies all the facts stated in the petition. 2. (State any other ground, or grounds, upon which the motion is based.) , attorney for defendant. The case when at issue stands for trial as do other cases of the same kind, and, if possible, the entire case will be disposed of on the trial and the rights of all the parties determined. 1089. Relating to pleading and practice. The practice with reference to the hearing of an application for temporary injunction has not been, in some respects, uniform, and an indiscriminate use of affidavits is often permitted. While it is conceded that, from the circum- stances, liberality should be allowed the parties, yet it is certain that on such hearings there must be an end to the right to use affidavits and counter affidavits, and that it must be a rare case which will justify the court or judge in allowing greater liberality in the matter of affidavits than the statute expressly provides. Affidavits used on a hearing of an application for a temporary injunction are no part of the record, and will not be considered on appeal from the ruling unless they are preserved by bill of exceptions or certificate of the judge, and filed in the clerk's office. 32 A former acquittal upon a charge of the crime of selling intoxicating liquors contrary to law is not an adjudication that the party is not maintaining a nuisance, and is no bar to the issuance of an injunction to restrain him from continuing such nuisance. 33 A cause of action to enjoin a nuisance caused by the unlawful sale of intoxicating liquors is not re- movable to the United States circuit court there is no federal question involved. 34 The plaintiff in an injunction case can not, for the first time, in the supreme court, make the objection that he had no opportunity to controvert the affidavits made in 2 Hart v. Foley, 67-407. 3 * Lemon v. Wagner, 68-660. 88 Martin v. Blattner, 68-286. 1090.] INJUNCTIONS. 307 support of the answer on which a dissolution was grant- ed. 35 Under section 4368 of code, the defendant may, on answer alone, without affidavits, move for vacation of the injunction, in which case the plaintiff may support his petition by affidavits. 36 It is held that when petitions for the enjoining and abating of nuisances kept in violation of the prohibitory liquor laws, contained the necessary averments and no answers were filed, the averments of the petition were admitted by operation of law, and no evidence was necessary. 87 1090. Violation of injunction, how punished. Any judge of the supreme, district or superior court be- ing furnished with an authenticated copy of the injunc- tion and with satisfactory proof that such injunction has been violated, must issue his precept to the sheriff of the county wherein the violation occurred, or to any other sheriff, naming him, more convenient to all parties con- cerned, directing him to attach the defendant and bring him forthwith before the same or some other judge, at the place stated in said precept. 38 Said precept may be in the following form: FORM OF PRECEPT FOR VIOLATION OF INJUNCTION. Title, ) Venue, f The State of Iowa. To the sheriff of (or to some other sheriff named), greeting: Satisfactory proof having been furnished to the undersigned, judge of the (name of the court of which he is judge), by the plaintiff in the above entitled action, that the writ of injunction therein issued and served has been violated by the defendant (or defendants, naming them). You are, therefore, hereby commanded and directed to attach the SB Casey v. Ind. Dist. of Nutt, 64- ss Code, Sec. 4372; State v. Myers, 659. 44-580; McLane v. Granger, 74-152; se Palo Alto Bkg., etc., v. Mahar, Fisher v. Cass County Dist. Court, 65-74. 75-232; Silvers v. Traverse, 82-52; 37 Bloomer v. Glendy, 70-757; Lindsay v. Clayton Dist. Court, 75- Code, Sec. 3622; Alexander v. Do- 509. ran, 13-283; Singer Mfg. Co. v. Bil- lings, 39-347. 308 INJUNCTIONS. [ 1090. . said defendant (or defendants), and bring him (or them) before me (or some other judge, naming him), on the day of A. D. 18 , at , county of , State of Iowa. , judge, etc. When produced he may file his affidavit denying or sufficiently excusing the contempt charged, and the court may hear other evidence, oral or by affidavit, and if satisfied that the defendant is not guilty or that the con- tempt is sufficiently excused, he will be released and all affidavits will be filed with the clerk of the court for pres- ervation. 39 And in proceedings for the violation of an injunction the court will take judicial notice of its own order granting the injunction. 40 If the defendant is not so released, the judge may re- quire him to give bond with surety for his appearance at the next term of court, and also for his future obedience to the injunction, which bond should be filed with the clerk. 41 Said bond may be in the following form: FORM OF BOND FOR APPEARANCE OF DEFENDANTS. Know all men by these presents, that we, and princi- pals and surety, are held and firmly bound unto the State of Iowa, in the penal sum of dollars, lawful money of the United States, well and truly to be paid. The condition of the above obligation is such, that whereas the said an( j have this day been convicted of a contempt of court, before the Hon. , judge of the (name the proper court), for violat- ing and disobeying an injunction issued from the district court of the State of Iowa, in and for county, in an action wherein - plaintiff, and the said and are defendants. Now, if the said . a 'nd , and each of them, shall appear at the next term of said district court and abide the order of said court in the premises, and shall in the meantime obey the said injunction, then this obligation to be void, otherwise to remain in full force and virtue. Dated this day of A. D. 18 . (Add justification.) If defendant fails to give security, he may be com- mitted to the jail of the county where the proceedings are pending until the next term of the court, unless he so Code, Sec, 4373. 41 Code, Sec. 4374. 40 Jordan v. Circuit Court, 69- 177. 1090.] INJUNCTIONS. 309 gives the bond in the meantime. 42 The warrant of com- mitment may be in the following form: FORM OF WARRANT OF COMMITMENT. The State of Iowa. To the sheriff of county, greeting: Whereas, has this day been brought before the undersigned, sole judge of the (name of the court, or judge of the supreme court), upon the precept of (name of judge who issued the precept, or "on my precept,") issued on the day of A. D. 18 , charged with having violated an injunction issued from the (name the court from whence the writ issued) on the day of A. D. 18 , in an action pending in said court, wherein is plaintiff, and the said and are defendants. And whereas, the said , on being produced before me, failed to file his affidavit denying or sufficiently excusing the contempt charged, and the said having been required by me to give a bond in the sum of dollars, with surety, for his appearance at the next term of the court in which said action is pending, and for his future obedience to said injunction, which he has failed to do. Therefore, you are hereby commanded to take the body of the said into your custody, and him safely keep in the county jail of county, Iowa, until the next term of the district court therein, or until he is otherwise legally discharged. Witness my hand this day of A. D. 18 . , judge, etc. If the bond is given, the court at the next term will act on the case and punish the contempt, in case it is found to have been committed, in the -usual manner. 43 But in some cases the court issuing the injunction may in the same proceeding render a judgment against the one vio- lating it. 44 After a preliminary injunction has been granted restraining the payment of money by public offi- cers, the fact that payment is made in violation of the in- junction before the final hearing, will not affect the rights of the plaintiff on such hearing. 45 See chapter on con- tempts. For the punishment for violation of injunctions in liquor cases consult the cases cited below. 46 42 Code, Sec. 4375. Fisher v. Cass County Dist. Court, Code, Sec. 4376. 75-232; State v. Voss, 80-467; **Teager v. Landsley, 69-725; Cotant v. Hobson, 67 N. W., 255; Hager v. Adams, 70-746. Silvers v. Traverse, 82-52; McLane Cartham v. Lang, 69-384. v. Granger, 74-152; Currier v. Muel- 46Qoetz v. Stutsman, 73-693; ler, 79-316; State v. District Court, 310 INJUNCTIONS. [ 1091. 1091. Of amendments. The liberal provisions of the code in relation to the subject of amendments are, so far as reasonable and proper, applicable to injunction suits; 47 and the power of the court, or judge, to permit amendments is fully treated of in the chapter on that; sub- ject 48 84-167; Lindsay v. Clayton Dist. Des Moines Nav. & R. Co. r. Court, 75-509; McG-lasson v. John- Carpenter, 27-487. son, 86-477; Lindsay v. Hatch, 85- * Chapter on Amendments. 332. CHAPTER LXVII. OF LANDLORD AND TENANT. Sec. 1092. To -what the lien of the landlord attaches. 1093. When he has no lien. 1094. Concerning the priority of the lien. 1095. When the lien attaches, and its continuance. 1096. Of waiver or loss of the lien. 1097. Of injunctions against tenants. 1098. Of proceedings against third persons to recover for property sold them by tenants, and of actions for injuries to the crop. 1099. Cases in which the landlord may assert his lien. 1100. Of the remedy 1101. Of payments by the mortgagee of rent. 1102. Of enforcement of the lien. 1103. Of the petition. 1104. Of the attachment. 1105. Of the levy of the writ. 1106. Of pleading, etc. Section 1092. To what the lien of the landlord attaches. A landlord has a lien for his rent upon all crops grown upon the demised premises, and upon any other personal property of the tenant which has been used or kept on the premises during the term, and not exempt from execution; 1 and it extends to crops grown by a sub-tenant, 2 and to an agreement for mining coal, so as to create the relation of landlord and tenant and give a right to a landlord's lien. 3 The lien attaches not only in cases of agricultural lands, but also in case of houses and store rooms in cities and towns; 4 and it attaches to property kept upon the iCode, Sec. 2992; Thompson v. Lacey v. Newcomb, 63 N. W., Anderson, 86-703; Thompson v. 704. Anderson, 63 N. W., 355. * Grant v. Whitewell, 9-152. 2 Houghton v.Bauer, 70-314; Fos- ter v. Reid, 78-205. 311 312 LANDLOED AND TENANT. [ 1093. premises for the purpose of sale to customers, though it is not used thereon for any other purpose. 5 So it at- taches to crops grown on land rented on shares, the same as if the rent had been payable in money, and if in such cases the lessee fails to gather and deliver to the lessor his share of the crop, and the landlord is com- pelled to gather it himself, he has a lien for the value of such labor, as a part of the rent the tenant agreed to pay. 6 So it attaches to growing crops. 7 So it has been held to attach to a span of horses owned by the head of a family, and being the only horses he had, or used, and which were kept for use, and used, on the demised premises. 8 The landlord's lien attaches to crops raised on the de- mised premises, and is not divested by their sale by the tenant 9 The lien extends to all personal property used on the premises and which belongs to the tenant and is not exempt from execution. 10 And when the landlord attaches and removes the tenant's property for rent due, the property is also liable for rent accruing after such attachment and removal. 11 1093. When he has no lien. It is said that no lien attaches as against one who purchases a cow in good faith from a tenant, even though she had been used on the farm, it not being shown that she was purchased on the farm; 12 and as to stock kept for agricultural pur- poses, if the landlord suffers it to be sold, and it is sold bona fide, the purchaser will not be affected by a lien afterward established. 13 It was held not to attach to horses and wagons used by a grocer in connection with 5 Grant v. Whitewell, 9-152. Hammer, 68 N. W., 564; Kramer v. e Secrest v. Stivers, 35-580. Adams, 63 N. W., 180; Neeb v. Mc- 7 Rotzler v. Rotzler, 46-189; Fos- Millan, 68 N. W., 438. ter v. Reid, 78-205. 10 Wells v. Sequin, 14-143. s Richardson v. Petersen, 58-724. n Garner v. Cutting, 32-547, and Holden v. Cox, 60-449; Atkins cases cited. But see Code, Sec. v. Womeldorf, 53-150; Wright v. 2992. Dickey Co., 83-464; Evans v. Col- 12 Nesbitt v. Bartlett, 14-485; see lins, 62 N. W., 810; Blake v. Coun- Grant v. Whitewell, 9-152. selman, 63 N. W., 679; Frorer v. is Nesbitt v. Bartlett, 14-485. 1094.] LANDLOKD AND TENANT. 313 his business, but not kept on the premises leased for his grocery. 14 It will not lie in favor of the landlord who proceeds under the general attachment law. 15 Nor can he claim a lien as against a mortgage when he did not, at the time the mortgage was executed, have a subsisting contract by virtue of which the rent claimed was to accrue. 16 Nor will it lie for damages for failure to till land, or by reason of breaches of contract in the agreement of lease, which are not connected with the demise of the land. It can only lie for rent due. 17 Nor will it attach, it seems, to goods sold before the lien is enforced, where selling goods was the business for which the premises under the lien were used. 18 The landlord has no lien as against a mortgagee of personal property, when the mortgage is duly recorded before the property is brought on to, or used on the de- mised premises, even though the mortgagee may know that the property is being used upon leased premises. 19 The lessor of a hotel has no lien for rent on property owned by the lessee's wife, though it is used in furnish- ing the hotel during the term of the lease. 20 A wife's property cannot be taken under a landlord's attachment for rent not accrued, under a lease of property to the husband. 21 1094. Concerning the priority of the lien. The lien of a mortgagee of chattels whose mortgage is duly recorded, is prior to that of a landlord on whose prem- ises they may be afterward used by the mortgagor; al- though the mortgagee may have knowledge that such chattels were being used upon the leased premises, 22 and the landlord's lien on growing crops of a tenant who is cultivating the land on shares, even though the rent i* Van Patten v. Leonard, 55-520. 10 Jarchow v. Pickens, 51-381; is Clark v. Haynes, 57-96. Rand v. Barrett, 66-731. is Thorpe v. Fowler, 57-541. 20 Perry v. Waggoner, 68-403; IT Merrit v. Fisher, 19-354. see Jarchow v. Pickens, 51-381. is Grant v. Whitewell, 9-152; see 21 Shurz v. McMenamy, 82-432. Nesbitt v. Bartlett, 14-485. 22 Jarchow v. Pickens, 51-381; Rand v. Barrett, 66-731. LANDLORD AND TENANT. [ 1094. share has not yet been set apart to the landlord, can not be divested by a creditor of the tenant levying an at- tachment thereon; 23 and where, during the term of a lease, another lease was made between the same parties covering the same property, it was held that while the execution of the second lease operated as a cancellation of the first as between the parties, yet the landlord's lien for rent under the second lease upon property kept upon the premises at the time of the change, would not be postponed by reason thereof to that of a chattel mort- gage made by the lessee prior to such change, and of which the lessor had no knowledge at the time. 24 So it is said that when a farm tenant who was the head of a family, kept a span of horses upon the leased premises for use, and not for sale, and they were the only horses he owned or used, and the lease was not re- corded, nor was there any lien or incumbrance on the horses of record, and prior to the maturity of any rent the tenant traded the horres for another span to a per- son who had no actual knowledge of the lease, or where the horses were kept, and subsequently absconded with all his property, leaving the rent unpaid, that the horses were subject to the landlord's lien for rent. That the sale of them did not affect the lien, but was subject to it, and that, as the statute which created the lien provides no protection in favor of persons having no notice there- of, the property subject to the lien can not be transferred free from the lien. 25 So a landlord may follow the crops raised on the prem- ises and on which he has a lien, into the hands of one who buys them; 26 but a landlord can not have a lien prior to that of a mortgage, when, at the time the mort- gage was executed, he did not have a subsisting contract by virtue of which rent was to accrue; 27 nor will a land- 23 Atkins v. Womeldorf, 53-150. v. Collins, 62 N. W., 810; Blake v. 2* Rollins v. Proctor, 56-326. Counselman, 63-679; Frorer v. 25 Richardson v. Petersen, 58- Hammer, 68 N. W., 564; Kramer v. 724. Adams, 63 N. W., 180; Neeb v. zsHolden v. Cox, 60-249; Rich- McMillan, 68 N. W., 438. ardson v. Petersen, 58-724; Evans ZT Thorpe v. Fowler, 57-541. 1095, 1096.] LANDLORD AND TENANT. 315 lord's lien be prior upon goods used in a hotel to one created by chattel mortgage on them prior to the be- ginning of the landlord's lease. 28 So he has no lien on property of the wife which is used on the demised prem- ises. 29 A provision in a lease creating a lien on property exempt from execution is in its nature and effect a mort- gage and as such must be recorded to be valid against existing creditors or subsequent purchasers without no- tice. 30 1095. When the lien attaches, and its contin- uance. The lien attaches at the commencement of the term or as soon as the property is brought on the prem- ises, 31 for all rent to become due, or that will accrue dur- ing the entire term. 32 It continues for the period of one year after a year's rent, or the rent of a shorter period claimed, falls due; but it does not, in any case, continue more than six months after the expiration of the term. 33 If a stock of goods or merchandise or a part thereof, subject to a land- lord's lien, is sold under judicial process, order of court, or by an assignee under a general assignment for the benefit of creditors, the lien of the landlord will not be enforcible against the stock, or any of it, except for rent due for the term already expired, and for rent to be paid for use of demised premises for a period not ex- ceeding six months after the date of the sale, and this is so regardless of any agreement that the parties may make. 34 1096. Of waiver or loss of the lien. It can not be waived or lost by an unauthorized sale by the tenant of property kept for use and not for sale. 35 So the tak- zs Rand v. Barrett, 66-731; Man- Greenbaum, 56-211; Doane v. Gar- hattan Trust Co. v. S. C. & N. R. retson, 24-351. Co., 68 Fed. R., 72. 32 Garner v. Cutting, 32-547; 2 Perry v. Waggoner, 68-403. Grant v. Whitewell, 9-152; Carpen- so Sioux Valley State Bk. v. ter v. Gillespie, 10-592; Martin v. Honnold, 85-352. Stearns, 52-345: Gilbert, etc., v. si Garner v. Cutting, 32-547; Greenbaum, 56-211. Grant v. White-well, 9-152; Carpen- as Code. Sec. 2992. ter v. GiUespie, 10-592; Martin v. 34 Code, Sec. 2992. Stearns, 52-345; Gilbert, etc., v. ^ Holden v. Cox, 60-447; Rich- 316 LANDLOED AND TEXAXT. [ 1097. ing of a note for rent and the indorsement of it to an- other, does not prevent the landlord, who is compelled to take it up as indorser, from enforcing his lien for rent for which the note was given; 36 but proceeding under the general attachment law for rent not due will be a waiver of his lien. 37 The lien being a statutory one and for the benefit of the landlord, he may waive it, and he is presumed to waive his lien as to sales made in the ordinary course of trade. 38 But taking a chattel mort- gage, which, on account of a failure to record, he can not enforce, is not a waiver of his lien. 39 But the taking of security or of a mortgage while not conclusive as a waiver is a fact to be considered in determining whether the lien has been waived. 40 If a landlord proceeds un- der the general attachment law for rent not due, he will be confined to the remedy there given. 41 As to other cases of waiver. 42 1097. Of injunctions against tenants. The land- lord may have an injunction against the tenant or his assignee to prevent a sale and removal of property on which he has a lien, from the demised premises. 43 But a landlord who has a lien on growing crops, for rent due and unpaid, and which may be enforced by attachment, can not have an injunction to restrain the tenant from removing them from the demised premises. 44 Where a mercantile firm was occupying a leased store room, and the firm was dissolved by the death of one of the part- ners, the landlord had a lien for rent which would accrue under the lease, but the surviving partner had a right to close out the business in such a manner as he might ardson v. Petersen, 58-724, and Bergman v. Guthrie, 89-290 ; cases cited under section relating Jno. V. Farwell & Co. v. Stick, 61 to priority of lien. N. W., 565, and 64 N. W., 614; sa Farwell v. Grier, 38-83, and Lacey v. Newcomb, 63 N. W., 704; see German Bk. v. Schloth, 59-316. Mingus v. Daugherty, 87-56; Smith 37 Clark v. Haynes, 57-96. v. Dayton, 62 N. W., 650; Crill v. ss Grant v. Whitewell, 9-152. Jeffrey, 64 N. W., 625. 39 Pitkin v. Fletcher, 47-53. 43 Garner v. Cutting, 32-547, and 40 Rollins v. Proctor, 56-326; cases cited; Carson v. Electric Smith v. Dayton, 62 N. W., 650. Light & Power Co., 85-44. Clark v. Haynes, 57-96. ** Rotzler v. Rotzler, 46-189. 1098.] LANDLORD AND TENANT. 317 deem best for the interests of the creditors, the exec- utors of the deceased partner ard himself; and in such case the landlord could not have an injunction to compel the surviving partner to hold the goods till the expira- tion of the term of the lease, or to sell them in the usual course of trade, and especially so when the surviving partner was a man of ample means. 45 When it appears that the relation of landlord and tenant does not exist, an injunction will not lie to prevent an occupant of a store room from recovering his goods. 46 . 1098. Of proceedings against third persons to recover for property sold them by tenants and of ac- tions for injuries to the crop. A landlord has no such interest in the growing crops of his tenant, that he can maintain an action against a third person who injures them. 47 When the crops of the tenant on which the landlord has a lien are sold by the tenant and the proceeds taken by a third party, an action at law will lie against him for damages for the wrongful conversion of the property; and if such action is brought in equity it should be changed into the proper proceedings and transferred to the proper docket. Error as to the kind of proceedings will not abate the action. 48 If the purchaser of the crop on which such lien has attached has consumed it, an action of damages will lie against him for the value. 49 A failure to bring an action within six months after the expiration of the term against a purchaser from a ten- ant of property, subject to the lien, will defeat the ac- tion. 50 If, however, he assents to the sale of lien cov- ered grain to an innocent purchaser, he will not be per- mitted to enforce his lien thereon. 51 45 Milner v. Cooper, 65-190. * Holden v. Cox, 60- 449; Nickel- 46 Stibbs v. Agner, 65-318. son v. Negley, 71-546; Evans v. *7 Drake v. Chicago, R. I. & P. Collins, 62 N. W., 810; Blake v. Ry. Co., 70-59; Townsend v. Isen- Counselman, 63 N. W., 679; Frorer berger, 45-670; see Howard Coun- v. Hammer, 68 N. W., 564; Kramer ty v. Kyte et al., 69-309, and cases v. Adams, 63 N. W., 180. cited. 50 Nickelson v. Negley, 71-546. 48 Scallan v. Wait, 64-707; see " Wright v. Dickey Co., 83-464. Holden v. Cox, 60-449, and Rich- ardson v. Petersen, 58-724. 318 LANDLORD AND TENANT. [ 1099-1102. 1099. Cases in which the landlord may assert his lien. The landlord may assert his lien for rent when the tenant's property has been taken by one claim- ing to be owner in an action of replevin. 52 A creditor of a tenant who is cultivating land upon shares can not, by the levy of an attachment upon the growing crop of the tenant, deprive the landlord of his lien thereon. 53 1100. Of the remedy. The lien given the land- lord is purely a statutory remedy and will be strictly construed. It attaches for rent only and rent is a cer- tain profit, either in money, provisions, chattels or labor, issuing out of lands and tenements as return for their use, hence a landlord does not have a lien for damage for breach of other covenants in the lease. 54 The landlord may maintain an action for rent due without asking for an attachment; 55 or he may, it seems, amend his petition and make the affidavit provided by the statute and then have his writ. 56 He can not claim a landlord's lien if he proceeds under the general attachment law. 57 While the lien attaches for the entire term to property of the tenant brought on and used on the demised premises, yet it may not be enforceable as to rent not due, so long as the tenant conducts and carries on his business in the usual manner, and as contemplated by the terms and con- ditions of the lease. 58 1101. Of payments by the mortgagee of rent. The mortgagee of goods may, after being garnished by a creditor of the mortgagor, pay over out of the surplus in his hands after satisfying the mortgage debt, to the landlord, rents accrued for the use of the building in which the goods were kept, and which was in arrears when the mortgagee took posession. 59 1102. Of enforcement of the lien. The lien may be effected or enforced by the commencement of an ac- 62 Edwards v. Cottrell, 43-194. 57 Clark v. Haynes, 57-96; see as Atkins v. Womeldorf , 53-150. Sec. 1096 and cases cited. 54 Merrit v. Fisher, 19-354. 58 Gilbert v. Greenbaum, 56-211. 55 Bartlett v. Gaines, 11-95. o Doane v. Garretson, 24-351. 56 Bartlett v. Gaines, 11-95. 1103.] LANDLORD AXD TEXAXT. 319 tion within the time of its continuance for the rent alone, in which action the landlord will be entitled to a writ of attachment, upon filing with the proper clerk a verified petition stating that the action is commenced to recover rent accrued within one year previous thereto upon premises described in the petition. And the pro- cedure will be the same as in other cases of attachment, except that no bond will be required. If a lien for rent is given in a written lease or other instrument, upon addi- tional property, it may be enforced in the same manner and in the same action. 60 When the land is leased on the condition that the third of the crop shall be delivered to the owner in payment of rent, the owner acquires no title to a part of the crop reserved for the rent until it is set apart for him by the tenant. 61 Oops of a sub-tenant can be appropriated under a landlord's attachment in an or- dinary action against the original tenant for rent 62 The action for malicious prosecution in wrongfully suing out a landlord's attachment can not be interposed as a .counter claim in an action in which the attachment is sought. 63 1103. Of the petition, The petition to enforce a landlord's lien may be in the following form: FORM OF PETITION FOR LANDLORD'S LIEN. Title, Venue. The plaintiff states that on or about the day of , 18 , by an (oral or written) agreement he leased to the defendant for the term of years from the day of , 18 , the following de- scribed premises situated in the county of and State of Iowa, to wit: (Here describe premises.) That the said defendant promised and agreed to pay as rent for said premises the said sum of - - dollars, payable as follows, to wit: (Here set out how and when rent is payable.) That the said defendant entered upon and continued in possession of said premises during the term of said lease, and that there is now due Code, Sec. 2993; Grant v. 461; Atkins v. Womeldorf, 53-150; Whitewell, 9-152; Nickelson v. Howard County v. Kyte, 69-309. Negley, 71-546. 2 Houghton v. Bauer, 70-314. si Townsend et al. v. Isenberger, es Youngerman v. Long, 63 N. 45-670; Rees v. Baker, 4 G. Greene, W., 674. 320 LANDLOED AND TENANT. [ 1104, 1105. and owing from said defendant as rent for said premises the sum of dollars. That this action is commenced to recover rent accrued within one year previous thereto, upon the premises heretofore described. Wherefore the plaintiff demands judgment for the sum of dollars, with interest thereon at the rate of per cent, per annum from the day of , 18 , and costs of suit, % and that a writ of attachment issue for the enforcement of his lien. attorney for plaintiff. (If the agreement is alleged to be in writing a copy of it should be attached to the petition, and made a part of It.) (Add verification.) 1104. Of the attachment. The landlord's at- tachment may be in the following form: FORM OF LANDLORD'S ATTACHMENT. The State of Iowa. To the sheriff of county, greeting: Whereas has this day filed his verified petition in the office of the clerk of the district court in and for county, Iowa, claiming of the sum of dollars, with interest thereon as stated in said petition, and has stated in said petition that said action is commenced by him against the said to recover said sum of money and interest as rent accrued, within one year previous thereto, upon the following described premises situated in county, Iowa, to wit: (Here de- scribe premises.) Now, therefore, you are hereby commanded to attach the crops grown on said premises between the day of 18 , and the day of , 18 , and also any other personal property of the said which has been used or kept for sale on said premises be- tween said dates and not exempt from execution, wherever the same may be found in your county, or so much thereof as shall be necessary to satisfy said sum of dollars, and interest and costs of suit, and safely preserve the same to be dealt with according to law. And of this writ make due service and return of your doings here- under to our said court on or before the first day of the next term thereof. In testimony whereof I have hereunto set my hand and caused the seal of said court to be affixed this day of , 18 . [Seal.] , clerk of the district court of county, Iowa. 1105. Of the levy of the writ. The officer is bound to levy the attachment on any personal property in the possession of, or that he has reason to believe belongs to, the defendant, or on which plaintiff directs him to levy. 1105.] LANDLORD AND TENANT. 321 But if, after such levy, he receives notice in writing, under oath, from some other person, his agent or attor- ney, that such property belongs to him, and stating the nature of his interest, and the facts showing how and from whom he acquired such interest, and for what con- sideration, or from the defendant that the property is ex- empt from execution, the officer may release the property unless a bond be given; but the officer will be protected from all liability by reason of such levy, until he receives such notice. When the officer receives such notice he must give the plaintiff, his agent or attorney, notice that an indemnifying bond is required. Such bond may there- upon be given by or for the plaintiff, with sureties, to the officer, to the effect that the obligors will protect and indemnify him against the damages he may sustain in consequence of the seizure and sale, and warrant to any purchaser of the property such estate or interest therein as is sold, and thereupon the officer must proceed to sub- ject said property to the attachment, and return the bond to the district court of the county from which the execu- tion issued. If such bond be not given, the officer holding the attachment may, within a reasonable time after de- mand being made on said officer, restore the property to the person from whose possession it was taken, and the levy will stand discharged. 64 The bond above mentioned may be in the following form: FORM OF INDEMNIFYING BOND TO SHERIFF. Know all men by these presents: That we, , principal, and sureties, are held and firmly bound unto , sheriff of county, -Iowa, in the penal sum of dollars, lawful money of the United States, well and truly to be paid to the said , sheriff, as aforesaid, his heirs, executors or as- signs. The conditions of this obligation are such, that whereas, the said , sheriff, as aforesaid, has in his hands a certain writ of landlord's attachment issued from the office of the clerk of the district court of county, Iowa, on the day of , 18, for the sum of *Code, Sees. 3906, 3991, 3994, 3993; see chapter on Executions and Exemptions. 322 LANDLORD AND TENANT. [ 1106. dollars and costs in favor of and against , which said writ is directed to said sheriff. And whereas, said sheriff has by virtue thereof attached the follow- ing described property and now holds- the same. (Here describe property attached.) t And whereas, notice in writing under oath has been duly served on said sheriff that the property so attached belongs to , and that his interest therein is that of (absolute owner, or if otherwise state the fact), and that he acquired said interest (here state from whom and how he acquired it), and that he paid for said property the sum of (here state the consideration), and demanding that the said property be released. And whereas, notice of such claim and notice by the said has been given to , plaintiff in said action, that an indemnifying bond is required. Now, if said obligors shall and will indemnify the said , sheriff, against all damages which he may sustain in consequence of the seizure or sale under said writ of the following described personal prop- erty, to wit (here describe property attached), and shall and will pay to any claimant of said property all damages he may sustain in conse- quence of said seizure or sale thereof, and shall and will warrant and make good to the purchaser thereof at said sale all of the estate, and interest which shall be sold therein at said sale, then this obligation to be void, otherwise to remain in full force and virtue. Dated this day of , 18. , principal. sureties. (Add Justification by sureties.) t The sheriff taking the bond must approve the same, which approval may be in the following form: The foregoing bond taken and the sureties therein approved by me this day of , 18. , sheriff of county, Iowa. 1106. Of pleading, etc. The answer should state whatever defense the defendant may have in accordance with the usual rules of pleading. If the answer only takes issue on the indebtedness, and does not controvert the plaintiff's right to a lien, provided an indebtedness is proved evidence tending to show that a large portion of the rent for which the action is brought accrued more than a year prior to its commencement, is not admissible, and in such a case it is only necessary for the jury to pass 1106.] LANDLORD AND TENANT. 323 upon the issue of indebtedness to authorize the entry of a judgment recognizing the lien. 65 Where, after an assignment of a lease, the landlord sued out an attachment against the original lessees, and caused it to be levied on property of the assignees, and on the premises, and made service by publication after the proceedings had been amended to make the assignees parties, the levy did not confer jurisdiction, as the as- signees were not parties in the writ, and the fact that they afterward replevied the property did not cure the defect. 66 Whether a landlord's lien is assignable. 67 But the lease is assignable and it carries the lien of the land- lord with it, as well as all remedies for its enforcement. 68 A sheriff may show that property taken under the writ was delivered to a third person by direction of the attor- ney of the plaintiff in the attachment and thus avoid liability for the negligence of the receiptor. 69 65 Bartlett v. Gaines, 11-95. s Hay wood v. O'Brien, 52-537; SB Wells, etc., v. Sequin, etc., 14- Lufkin v. Preston, 52-235. 143. 69 Citizens Nat'l Bk. v. Loomis, T Farwell v. Grier, 38-83. 69 N. W., 443. OHAPTEK LXVIII. OF MANDAMUS. Sec. 1107. Object and purpose of the order. 1108. By whom issued. 1109. Will not issue to control discretion. 1110. When the order will be issued 1111. When the order will be refused. 1112. On whose petition granted. 1113. When action for may be joined with other causes of action. 1114. Of the petition. 1115. Of practice. 1116. Of the order. 1117. Of power of the court Section 1107. Object and purpose of the order. The object of a writ of mandamus is to maintain an order of a court of competent jurisdiction commanding an in- ferior tribunal, board, corporation or person, to do or not to do an act, the performance or omission of which the law enjoins as a duty resulting from an office, trust or station. 1 Formerly and under the code of 1851, the pro- ceeding by mandamus was a prosecution, in the name of the State, commenced by filing an information under oath; and on motion presented in open court, the court ordered an alternative writ to issue, or granted a rule to show cause why an alternative writ should not issue. The defendant made answer to this writ, upon which is- sues the cause was tried and a peremptory writ granted or refused. 2 1108. By whom issued. The order for a writ of mandamus may be issued by the district or superior court to any inferior tribunal, or to any corporation, officer or person, and by the supreme court to any district or su- iCode, Sec. 4341; State v. Coun- Vail, 43-142; Larkin v. Harris 36- ty Judge, 12-237, 246; Patterson v. 93. 2 Chance v. Temple, 1-178. 324 1109, 1110.] MANDAMUS. 325 perior court, if necessary; and also in any other case where it is found necessary for that court to exercise its legitimate power. 3 1109. Will not issue to control discretion. When discretion is left to the inferior tribunal or person, the mandamus can only compel it to act, but can not control such discretion, even though such discretion be exercised unwisely. 4 1110. When the order will be issued. The plaint- iff in any action except those brought for the recovery of specific real or personal property, may also as an auxil- iary relief have an order of mandamus to compel the per- formance of a duty established in such action. But if such duty, the performance of which is sought to be com- pelled, is not one resulting from an office, trust or station, it must be one for the breach of which a legal right to damages is already complete at the commencement of the action, and must also be a duty of which a court of equity would enforce the performance. 5 It will issue to enforce the discharge of an official duty where the exercise of discretion is not involved; 6 the or- der may be made to compel the auditor of State to issue his warrant upon the treasurer of State for a sum due a public officer on his salary. 7 So the duty of a city council to levy a tax not exceeding the maximum limit of the power of taxation, for the payment of a judgment against the corporation, upon which an execution has been issued and returned nulla bona, may be enforced by mandam- us; 8 and a county treasurer holding money collected s Code, Sec. 4342; Westbrook v. kin v. Harris, 36-93; Patterson v. Wicks, 36-382; Brown v. Crego, Vail, 43-142. 29-321. e Code, Sec. 4341; Bryan v. Cat- * Code, Sec. 4341; Bryan v. Cat- tell, 15-538; Case v. Blood, 71-632; tell, 15-538; Clark v. The Board of Dist. Twp. v. Ind. Dist., 72-687; Directors, etc., 24-26fr; Jones v. Newby v. Free, 72-379; Ridley v. Trustees, etc., 26-594; Scripture v. Doughty, 77-226; Hancock v. Dist. Burns, 59-70; Bailey v. Ewart; 52- Twp., 78-550; Ireland v. Hunnel, 111; Coy v. City Council of Lyons, 90-98. 17-1; Peters v. Warner, 81-335; ~ Bryan v. Cattell, 15-538. Malt Ext. Co. v. C., R. I. & P. R. s Coy v. The City Council of Co., 73-98. Lyons, 17-1; State v. County Judge, s Brown v. Crego, 29-321; Lar- etc., 12-237; State v. City of Dav- 326 MANDAMUS. [ 1110. upon a tax to pay a judgment against the county may by mandamus be compelled to pay the same to the judgment creditor on demand; 9 but in some cases it will not lie against an officer to compel a refunding of a tax, 10 and the directors of a school district refusing to levy a tax to pay a judgment against the district may be compelled by mandamus to do so, notwithstanding the fact that the electors of the district failed and refused to provide there- for by not voting the necessary tax; 11 and the board of supervisors may be compelled by mandamus, when act- ing as a board of canvassers, to declare elected, and issue a certificate to the person receiving the highest number of votes cast at an election. 12 This action will lie to com- pel a road supervisor to remove trees standing in and ob- structing the highway, when he fails to perform his duty in that respect. 13 So he may be thus compelled to re- move a fence or other obstruction improperly placed by him in a highway. 14 And a municipal corporation, which, in order to avoid the payment of its debts, purposely keeps the valuation and assessment of property in its limits too low, will be compelled by mandamus to make a fair assessment and apply in payment of a judgment against said corpora- tion, of the proceeds arising from the maximum tax levied thereon, such surplus as may remain after deducting the amount required for current expenses, 15 and a railway company may be by mandamus compelled to construct and maintain a private crossing where such duty is im- posed by law. 16 A board of school directors refusing to act in a proper case may be compelled to do so by man- damus; 17 and when the electors of a school district have enport, 12-335; see State v. The is Patterson v. Vail, 43-142. Mayor, etc., 18-388. i* Larkiu v. Harris, 36-93. Brown v. Crego, 32-498. is Coffin v. The City of Daven- 10 Eyerly v. Board, 81-189. port, 26-516. 11 Boynton v. The Dist. Twp., 34- ie Boggs v. C., B. & Q. R. Co., 510. 54-435. 12 Bradfield v. Wait, etc., 36- " Albin v. Board of Directors, 291; The State v. The County 58-77; Wood v. Farmer, 69-533. Judge, etc., 7-186; State v. Bailey Co. Judge, 7-390. 1110.] MANDAMUS. 327 determined that the school house of the district may at proper times be used for religious meetings and Sunday schools, the duty of the directors to open the house for the purpose may be enforced by mandamus. 18 So it will lie to compel the county treasurer to pay over to a rail- road company entitled thereto a tax voted and collect- ed; 19 and a municipal corporation may have an order of mandamus against a public officer after his resignation, to compel him to deliver the books and papers of the cor- poration, which he wrongfully detains; 20 and the proper county officer may by an order of mandamus be compelled to affix the county seal to county warrants legally is- sued, 21 and this writ may issue to enforce the collection of a judgment rendered in the United States court; 22 and proceedings may be had by mandamus to compel a municipal corporation to levy a tax to pay a judgment notwithstanding such judgment was also rendered against an individual who has property subject to an exe- cution; 23 and it will lie at the instance of proper parties to compel the directors of a district township to take ac- tion with reference to detaching certain territory from said township and adding it to an independent district having acted favorably thereto; 24 and it would seem that an order of mandamus would issue, to compel the ap- pointment of arbitrators to divide assets of a school dis- trict, when an independent district has been carved out of a district township, and the parties could not agree on a division; 25 and when a school house has been removed under an order of the directors, which order is reversed by the county and State superintendent, it is the duty of the board to return the school house to its former site, and mandamus will lie to compel them to do so, 26 and to compel a county judge to canvass the votes upon the ques- is Davis v. Boget, 50-11. 23 Palmer v. Stacy, 44-340. is The McGregor & S. C. R. Co. 2* Hightower v. Overhaulser, 65- v. Birdsall, 30-255; see Eyerly v. 347. Board, 81-189. 25 Case v. Blood, 68-486. 20 Keokuk v. Merriam, 44-432. 26 Atkinson v. Hutchinson, 68- 21 Prescott v. Gonser, 34-175. 161. 22 Ex parte Holman, 28-88. 328 MANDAMUS [ tion of removing a county seat; 27 to compel a city to col- lect and pay over damages to persons injured by laying out streets through their premises. 28 1111. When the order will be refused. It will not lie at the instance of a proprietor of a newspaper, to com- pel the board of supervisors to order publication of their proceedings in his paper; 29 nor in favor of a party ag- grieved by the action of a board of school directors, when he has an adequate remedy by appeal to the county su- perintendent, and from him to the superintendent of public instruction; 30 nor to compel county officers to strike out an assessment alleged to be erroneous; 31 nor in any case where the petition shows that the plaintiff has a plain, speedy and adequate remedy at law; 32 nor against the State; 33 nor can a debt, while it remains in its original form, and not reduced to judgment, be made the basis of an action of mandamus to compel the levy of a tax to pay the same, unless such proceedings were auth- orized by the law under which it was contracted; 34 nor will it lie to compel a municipal corporation, which re- quires all the proceeds of a tax which is up to the full limit authorized by law to meet ordinary expenses, to apply a part of such fund to the payment of a judgment against such corporation; 35 nor to compel the board of supervisors to levy a tax to pay a judgment rendered upon warrants issued for ordinary expenses and bridge pur- poses, when it appears that they have levied the maxi- mum rate allowed by law for such purpose; 36 nor to com- pel the issuance of a teacher's certificate by the county superintendent, but only to compel him to take some ac- tion on the application therefor; 37 nor will it lie to com- 2T Dishon v. Smith, etc., 10-213. 33 Mills Pub. Co. v. Larrabee, 78- zs state v. City of Keokuk, 9-438. 97. 29 Welch v. The Board, etc., 23- 34 Coy v. The City of Lyons, 17-1. 199. 35 Coffin v. The City of Daven- 30 Marshall v. Sloan, 35-445. port, 26-516. si Meyer v. The County of Du- ss p o lk v. Winett, 37-34; The buque, 43-592. Iowa R. & L. Co. v. Sac Co., 39-126. 32 Meyer v. The County of Du- ST Bailey v. Ewart, 52-111. buque, 43-592; Smith v. Powell, 55-215. 1112, 1113.] MANDAMUS. 329 pel an officer to do that which is not within his power to do; 38 nor against a religious corporation, to compel the reinstatement of a member expelled, and inquiring into the rightfulness of such action, no property interest or other valuable civil right being affected; 39 nor to compel the clerk of the courts to issue an execution on a judg- ment; 40 nor at the instance of a contractor against a school board, when the board, in inviting proposals, said : "The contract will be awarded to the lowest responsible bidder; the board reserves the right to reject any and all bids," and the contractor claimed to be the lowest respon- sible bidder; he could not compel the board to award him the contract; 41 nor to compel school directors to act in cases when they have met and are unable to agree; 42 nor will it lie to compel school directors to re- store territory. 43 1112. On whose petition granted. The order of mandamus is granted on the petition of any private party aggrieved, without the concurrence of the prosecutor for the State, or on the petition of the State by the county attorney, when the public interest is concerned, and is in the name of such private party, or of the State, as the case may be in fact brought. 44 It is doubtful if an actioi) by an independent school district against its president to compel him to perform a duty involves the public interest in such a sense as to require the action to be brought in the name of the State. 45 1113. When action for may be joined with other causes of action. When the action is brought by a pri- vate person it may be joined with a cause of action for such an injunction as may be obtained by ordinary pro- ceedings, or with any action except those brought for recovery of specific real or personal property. 46 ss Rice v. Walker, 44-458. "Code, Sec. 4345; but see Oden- sSale v. First, etc., 62-26. dahl v. Russell, 86-669; Crane v. 40 Pickel v. Owen, 66-485; see C. & N. W. R. Co., 74-330. Code, Sec. 4344. 45 ind. Dist. v. Rhodes, 88-570. 41 Hanlin v. Dist. Twp., 66-69. 46 Cooper v. Nelson, 38-440; 42 Case v. Blood, 68-486. Code, Sec. 4348. Barnett v. Ind. Dist., 73, 134. 330 MANDAMUS. 1114. 1114. Of the petition. As we have seen the order of mandamus is granted on the petition, and this petition must state the claim of the plaintiff, and facts sufficient to constitute cause for such claim; that the plaintiff, if a private individual, is personally interested therein, and that he sustains and may sustain damage by the non-per- formance thereof, and that performance has been de- manded by him and refused or neglected, and must pray for an order of mandamus commanding the defendant to fulfill such duty. 47 The petition may be in the following form : FORM OF PETITION IN MANDAMUS TO COMPEL TOWNSHIP TRUSTEES TO CERTIFY TO COUNTY TREASURER THAT THE CONDITIONS ON WHICH A TAX TO A RAIL- ROAD COMPANY WAS VOTED HAVE BEEN COMPLIED WITH. Title. Venue. The plaintiff states that the defendants, and each of them, are the duly qualified and acting trustees of township in the county of , and State of Iowa. .That at all the times hereinafter mentioned the railway com- pany was a corporation for pecuniary profit, duly organized and exist- ing under the laws of the State of Iowa, and engaged in the building and operation of a line of railway from the city of , Iowa, to the city of , Iowa, passing through said township. That on the day of 18 , at a special election, duly and legally called for that purpose, the electors of said township voted a special tax of per cent, upon the taxable property of said township, for the purpose of aiding the said railway company in the construction of its said railway. That said per cent, tax was voted to said railway company upon the following conditions to be performed by said railway company, to wit: 1. That one-half of said tax shall be due and collectible when said road is constructed through the said township, and the other half in the year following. 2. That fifty consecutive miles of said railway shall be completed, passing through said township, and the cars running thereon. 3. That said tax shall become null and void unless said railway shall be completed through said township as above specified, and the cars running thereon by the first day of December, 18 . 4. That said company was to erecc and maintain a depot within *7 Code, Sec. 4346; Coffin v. The City of Davenport, 26-516; Scrip- ture v. Burns, 59-70. 1114.] MANDAMUS. 331 fifteen hundred feet of the wind-mill used by the elevator company at the town of , in said township. 5. (Here insert any other conditions on which said tax was voted.) That said conditions were duly set forth in the notice of the special election at which said tax was voted, and were duly certified by the township clerk of said township, to the county auditor of county, together with the rate of per cent, of tax so voted, the year in which the same was to be collected and an exact copy of the notice under which said election was held, which certificate was duly filed for record in the office of the recorder of deeds of said county, on the day of , 18 , and recorded in book , on pages of miscel- laneous records of , Iowa. That said tax so voted was duly levied by the board of supervisors of said county and placed upon the tax list of said township, in all re- spects according to law, and a large portion of said fax has been paid to the county treasurer by the taxpayers of said township, to wit, the sum of about thousand dollars, and the same still remains in the hands of said county treasurer. That the conditions required of the said railway company upon which said tax was voted, were and have been fully complied with and performed on part of said railway company; that said railway company built, constructed and completed its said line of railway for a distance of fifty consecutive miles, the 'same passing through said township, and operated the same with cars running thereon, before the first day of December, 18 , and erected and maintained a depot within fifteen hun- dred feet of the wind-mill used by the elevator company at the town of , Iowa, in said township, and it thereupon became the duty of the trustees of said township to so certify to the treasurer of said county, as required by law. That said county treasurer refuses to pay over the said money so collected, in his hands, because said defendants have failed and neg- lected to make certificate required by law, as above set forth. The plaintiffs are personally and individually interested in having the above mentioned duty of said township trustees performed, and sustained, and will sustain, great damages by the non-performance of said duty, and have been damaged thereby to the sum of thousand dollars by the loss of interest on said taxes and otherwise. That on the day of , 18 , the plaintiffs, in writing, duly / demanded of said trustees that they make certificate to the county / treasurer, as required by law, showing that the conditions upon which/ said tax was voted had been fully complied with, a copy of which notice! is hereto annexed and marked "Exhibit A," and made part of this petiV tion. The said township trustees, the defendants above named, disregard- ing their duty in the premises, have failed and refused, and do still re- fuse, to make the certificate; for the purpose of unlawfully preventing the said railway company from collecting and receiving from said coun- ty any portion of said tax. Wherefore plaintiffs pray that a peremptory order of mandamus of 332 MANDAMUS. [1115. this court issue to be directed to said defendants, commanding them forthwith to certify to the said treasurer of said county, Iowa, that the conditions required of said railway company at said special election at which said tax was voted have been fully complied with, and performed, on part of said railway company, and that the plain- tiffs have judgment against the defendants, and each of them, for thousand dollars damages, and for costs of this proceeding. , attorneys for plaintiff. (Add verification.) (A copy of the notice referred to in petition should be attached thereto.) FORM OF PETITION FOR MANDAMUS. The plaintiff states: That (name of corporation) Is a civil corporation, organized under the laws of this State; that the defendants are the officers of said cor- poration authorized by law to levy and collect taxes for and on behalf of said corporation; that on the day of A. D. 18 , the plain- tiff recovered a judgment in this court, against said (name of the cor- poration) upon the ordinary evidence of indebtedness issued by said cor- poration for the sum of one thousand dollars and costs; that on the day of A. D. 18 , an execution was issued on said judg- ment and returned wholly unsatisfied, no property of said corporation being found on which to levy the same; that it became the duty of the defendants on or before the day of A. D. 18 , to levy a sufficient tax upon the taxable property of said (city or county) to pay the said judgment, with interest and costs; that on the day of - A. D. 18, the plaintiff requested of, and demanded that the de- fendants should and would levy such tax; that they have wholly neg- lected and refused to do so; that plaintiff is personally interested in the collection of the judgment herein referred to, whereby the plaintiff is greatly damaged and hindered in the collection of said judgment. Wherefore the plaintiff prays that a peremptory order of mandamus issue, commanding said defendants forthwith to levy and collect a suf- ficient tax to pay the said judgment, with interest and costs, together with the costs "of this,action, and pay the same to the plaintiff. , attorney for plaintiff. (Add the usual verification.) 1115. Of practice. The pleadings and other pro- ceedings in any action in which a mandamus is claimed, must be the same in all respects, as nearly as may be, and costs are recoverable by either party, as in an ordinary action for the recovery of damages, 48 nor is it triable de *8 Code, Sec. 4347; Chance v. of Keokuk, 41-689; Dist. Twp. v. Temple, 1-178; Dove v. Ind. Dist. Ind. Dist., 72-687. 1116, 1117.] MANDAMUS. 333 novo in the supreme court. 49 The order of mandamus can not properly be issued as preliminary or intermediate process, but only after hearing and judgment. 50 No counter claim is allowed, and no joinder except as here- tofore stated. 51 1116. Of the order. When the plaintiff recovers judgment the court may include therein a peremptory or- der of mandamus directed to the defendant commanding him forthwith to perform the duty required, and may award a money judgment for damages and costs, upon which execution may issue. 52 The order must simply command the performance of tlie duty, and must be di- rected to the party, and may be issued in term time, or in vacation, and shall be returnable forthwith, and no re- turn except that of compliance will be allowed; but time to return the writ may, upon sufficient grounds, be al- lowed by the court or judge, either with or without terms, in the exercise of a wise discretion. 53 The writ or order of mandamus may be in the following form: FORM OF PEREMPTORY ORDER OF MANDAMUS. The State of Iowa. To (name of defendant), greeting: Whereas, on the day of A. D. 18 , in an action then pending in the (name of the court), wherein was plaintiff, and defendant, judgment was rendered by said court that a peremp- tory order of mandamus issue in said action commanding you, the said defendant, to (insert the thing required to be done, or omitted). Now, therefore, you are hereby commanded, that immediately on the receipt of this order, you, (here insert the duty to be performed), and forthwith make return to our said court how you have complied with the demands of this order. Witness, , clerk of said court, with the seal thereof hereto affixed, this day of A. D. 18. [Seal.] , clerk. 1117. Of the power of the court. The court may, upon application of the plaintiff, besides, or instead of proceeding against the defendant by attachment, direct Dove v. The Ind. Dist. of Keo- si Code, Sec. 4348. kuk, 41-689. 52 Code, Sec. 4349. BO Wright v. Conner, 34-240. 53 Code, Sec. 4350. 334 MANDAMUS. [ 1117. that the act required to be done, be done by the plaintiff or some other person appointed by the court, at the ex- pense of the defendant ; and upon the act being done, the amount of such expense may be ascertained by the court, or by a referee appointed by the court, as the court or judge may order, and the court may render judgment for the amount of such expenses and costs, and enforce pay- ment thereof by execution. 54 During the pendency of the action, the court, or judge in vacation, may make temporary orders for preventing damages or injury to the plaintiff, until the action is decided. 55 When the State is a party it may appeal without security. 56 B* Code, Sec. 4351. B Code, Sec. 4353. ss Code, Sec. 4352. CHAPTEK LXIX. OF MECHANICS' LIENS AND CLAIMS. Sec. 1118. Of claims of sub-contractors of public buildings and im- provements. 1119. Same Manner of making claim. 1120. Same Adjudication of claim Release of Filing prevented, how. 1121. Of liens for opening, developing and operating coal mines. 1122. Who may have a mechanic's lien. 1123. When no lien allowed because collateral security is taken. 1124. Other cases in which the right to a lien is denied. 1125. Of the contract. 1126. Of liens on the wife's property by virtue of contracts made with the husband. 1127. Extent of lien generally. 1128. Of priority of the lien. 1129. When the lien attaches Its continuance. 1130. Of preserving the lien. 1131. Of the duties of the clerk. 1132. By whom and in what court liens may be enforced. 1133. Who made defendants. 1134. When lien will be forfeited. 1135. Of pleadings, practice, etc. 1136. Of satisfaction of the lien. 1137. Of the petition. 1138. Of judgment. 1139. Of limitation of actions. 1140. Of sub-contractors Who are. 1141. Of the sub-contractor's lien How preserved and how dis- charged. 1142. Of payments made by the owner to the contractor within the thirty days, etc. 1143. Extent of lien of sub-contractor, when claim filed after thirty days. Section 1118. Of claims of sub-contractors of pub- lic buildings and improvements. Every mechanic, la- borer or other person, who as sub-contractor performs work or labor upon, or furnishes material for the con- 335 336 MECHANICS' LIENS AND CLAIMS. [ 1119, 1120. struction of any public building, bridge or other improve- ment not belonging to the State, has a valid claim against the public corporation constructing such building, bridge or other improvement, for the value of such services and material in an amount not in excess of the contract price, to be paid for the same; but such corporation is not re- quired to pay such claim at any time before, or in any manner different from that provided in the principal con- tract. The corporation may pay its contractor accord- ing to the terms of its contract. 1119. Same Manner of making claim. Such claim is made by filing with the public officer through whom the payment is to be made an itemized and sworn statement of the demand within thirty days after the per- formance of the last work or labor, or the furnishing of the last portion of the material, and such claims have priority in the order in which they are filed, and the state- ment must show on its face that it is a sworn statement. 1 1120. Same Adjudication of claim Release of Filing prevented, how. Any party in interest may cause to be adjudicated the validity of such claim, its priority, the amount due thereon, or the mode and time of payment, by equitable action in the district court, and the court may assess a reasonable attorney's fee against a party failing and in favor of such corporation. 2 The contractor can at any time release such claim by filing with the treasurer of such corporation a bond for the benefit of such claimant, with sufficient penalty and sure- ties approved by such treasurer, conditioned for the pay- ment of the sum found due claimant, and the contractor may prevent the filing of such claims by filing in like man- ner a bond conditioned for the payment of persons who may be entitled to file such claims; actions may be brought on such bond by any claimant within one year after the cause of action accrues and judgment rendered iCode, Sec. 3102; McGillivray v. 93; Hunt v. King, 66 N. W., 71. Dist. Twp., 65 "N. W., 974; Epeneter 2 Code, Sec. 3103. v. Montgomery County, 67 N. W., 1121, 1122.] MECHANICS' LIENS AND CLAIMS. 337 thereon against the principal and sureties for any amount found due. 3 It is held that there is no law which will subject the indebtedness of a county to a contractor to the claim of a sub-contractor or laborer for work done on a county building or bridge under the contract, and that if the claim provided for in the statute is not filed within the thirty days, the party filing it can not claim a lien. 4 The bond will not be invalid if executed to the parties interested, instead of to the public corporation, nor because not specifying a penal sum, and in any event it may be good as a common law obligation. 5 1121. Of liens for opening, developing and operat- ing coal mines, Every laborer or miner who shall perform labor in opening, developing or operating any coal mine, may have a lien upon all of the property of the person, firm or corporation owning or operating such mine, and used in the construction or operation thereof, including real estate and personal property, for the value of such labor to the full amount thereof, to be se- cured and enforced in the same manner as are mechanics' liens. 6 1122. "Who may have a mechanic's lien. A me- chanic's lien is a right to a remedy against property and by which means real estate may be subjected to a specific lien for the payment of the claim, and a mechanic's lien is an insurable interest. 7 Every person who does or per- forms any work or labor upon, or furnishes any materials, machinery or fixtures for any building, erection or other improvement upon land, those engaged in the construc- tion or repair of any work of internal improvement, and those engaged in grading any land or lot, by virtue of any contract with the owner, his agent, trustee, contrac- tor or sub-contractor, upon complying with the require- ments of the statute, has, for his work and labor done, or Code, Sec. 3104. Code, Sec. 3105. * Breneman v. Harvey, 70-479, 1 Andrews v. Burdick, 62-714; and cases cited. Carter v. Humboldt Ins. Co., 12- s Carnegie v. Hulbert, 70 Fed., 287. 209. 338 MECHANICS' LIEXS AND CLAIMS. [ material, machinery or fixtures furnished, a lien upon such building, erection or improvement and upon the land belonging to such owner on which the same is situ- ated, to secure the payment of such work or labor done, or materials, machinery or fixtures furnished. 8 One who performs labor for a contractor in the erection of a build- ing may establish a lien against the building therefor, though no express contract for payment was made. 9 And the fact that such laborer also acts as overseer will not affect his right to a lien. 10 So a lien will attach in favor of one who has furnished labor or material in the erec- tion of lightning rods. 11 A day laborer on a railroad is entitled to a lien for his wages. 12 But such lien can not be enforced against the road if the contractor has fully paid the sub-contractor under whom such laborer worked, the full amount due under his contract, and this is so though the railroad company may owe the contractor a sum ex- ceeding the amount of the laborer's claim against the sub- contractor. 13 One who wrongfully makes improvements on another's land can not defeat a mechanic's lien on such improvements by showing that he had no right to enter upon the land, neither can a purchaser from him of the improvements. 14 One can not have a lien for money paid for the use of another. 15 But a lien will not lie for work or material for a sidewalk upon a street. 16 Nor in favor of one who, under a contract with an adjoining owner, builds a party wall partly on the latter's land. 17 An architect who prepares plans and specifications for the improvement of a building, which improvements are made, may have a lien. 18 Taking an appeal will not affect the lien. 19 Nor will taking a mortgage on the property unless it appears that it was the intention to look to Code, Sec. 3089. " Stubbs v. Clarinda, etc., 65-513. Fcerder v. Wesner, 56-157. Coenen v. Staub, 74-32. 10 Same as No. 9. " Swift v. Calnan, 71 N. W., 233. 11 Harris v. Schultz, 64-539. is Parsons v. Brown, 66 N. W., 12 Mornan v. Carroll, 35-22. 880; see Foster v. Tierney, 91-253. is Utter v. Crane, 37-631. Julien G. L. Co. v. Hurley, 11- i* Lane v. Snow, 66-544. 520. 1123.] MECHANICS' LIENS AND CLAIMS. 339 such security alone. 20 Nor will the taking of a note for the amount of the claim. 21 1123. When no lien is allowed because collateral security is taken. No person is entitled to a lien who, at the time of executing or making the contract for work, labor or material, or during the progress of the work, erection, building or improvement, takes any collateral security on said contract; but after the work is com- pleted, and the contractor or other person has become entitled to claim or establish a lien, the taking of col- lateral or other security will not affect the right to such lien unless the new security is by express agreement given and received in lieu of the mechanic's lien. 22 But the taking of a promissory note for the amount due for work done or materials furnished will not affect the right of a party to a lien unless so intended. 23 And the mere prom- ise of a subsequent purchaser of property subject to a mechanic's lien, in con ' deration of forbearance to pay the claim secured by the lien, is not taking collateral se- curity. 24 The taking of collateral security after the ma- terial is furnished, though the building be not completed, will not prevent one from having a lien. 25 And one who takes a negotiable note for the amount of his claim, and negotiates it, but upon its dishonor is compelled as in- dorser to take it up, may enforce his original right to a lien. 26 And if the right to a mechanic's lien has been for- feited by taking collateral security, such security may be surrendered and the lien by agreement of parties re- stored, and when so restored it w T ill become valid and ef- fective between the parties or those subsequently acquir- ing rights in the property as though no security had been taken. 27 The fact that a husband, as agent for his wife, 20 Gilchrist v. Gottschalk, 39-311. v. Taylor, 5-546; Scott v. Ward, 4 21 Green v. Ely, 2 G. Gr., 508; G. Gr., 112. Mix v. Ely, 2 G. Gr., 513; Logan v. 24 Mervin v. Sherman, 9-331. Attix, 7-77. 25 Bissell v. Lewis, 56-231. 22 Code, Sec. 3088; Atlantic Trust 26 German Bk. v. Schloth, 59- Co. v. Carbondale Coal Co., 68 N. 316; see Howley v. Warde, 4 G. Gr., W., 697. 36; Scott v. Ward, 4 G. Gr., 112. 23 Logan v. Attix, 7-77; Bonsall 27 Getchell v. Musgrove, 54-744. 340 MECHANICS' LIENS AND CLAIMS. [ 1124, 1125. contracts for material to be used in the erection of a building on her land, and also binds himself by such con- tract to pay therefor, will not constitute the taking of collateral security by the material-man, so as to defeat his right to a lien. 28 Nor will the fact that a contract for building a railroad provides that money specified therein should be paid by citizens of a county through which the road is to be built. 29 1124. Other cases in which the right to a lien is denied. The lien will attach only for work or labor done and materials furnished. 30 Breaking sod is not such "an improvement" upon land as to entitle the person perform- ing such labor to a mechanic's lien. 31 Nor is the build- ing of a sidewalk in the street. 32 Nor will it lie for the cost of a portion of a partition wall. 33 It has been held that where the contract for work, labor or materials is made with a person having no title to, or interest in the land, the lien could not be enforced. 34 And that mere possession of the realty, without right or interest therein was not sufficient. 35 So it has been held that no lien will lie for improve- ments voluntarily made on another's land, because there was no contract with the owner of the land. 36 And prior to the enactment of chapter 179, laws of 1884, no lien could be had against a school house, 37 nor against a build- ing owned by the county and used for county purposes, 38 nor against bridges built by the county. 39 1125. Of the contract. To entitle a party to a me- chanic's lien, the work or labor must have been done or performed, and the material furnished, under a con- 28 Bissell v. Lewis, 56-231. se Wilkins v. Litchfleld, 69-465; 20 Delaware R. C. Co. v. Daven- Littleton Sav. Bk. v. Osceola Land port and St. P. R. Co., 46-406. Co., 76-660; Templin v. C., B. & P. so Brown v. Rodacker, 65-55. R. Co., 73-548. si Brown v. Wyman, 56-452. 37 Charnock v. Dist. Twp., 51-70. 32 Coenen v. Staub, 74-32. ss Lewis v. Chickasaw County as Swift v. Calnan, 71 N. W., 233. 50-234; Whiting v. Story County, * Redman v. Williamson, 2-488. 54-81; Breneman v. Harvey, 70-479, SB Reed v. Huston, 12-35; see 39 Loring v. Small, 50-271. Lane v. Snow, 66-544. 1126.] MECHANICS' LIENS AND CLAIMS. 341 tract 40 There need be no express agreement that the mechanic is to have a lien for his work or materials. 41 The contract need not be in writing, and it would seem, in cer- tain cases at least, it may be implied from knowledge possessed by the parties. 42 If materials are furnished for building purposes in accord with an agreement or under- standing with the parties and the materials are so used, the seller may have a lien therefor, but if such materials are sold from time to time in the course of trade and nothing said, and no understanding had as to the purpose for which they are to be used, the seller will not be en- titled to a lien. 43 There should be something to show that the materials were furnished especially to be used in or about a building. 44 And it has been held that a lien on improvements may exist without any contract with the owner of the fee; all that is necessary is a*contract with the owner of the improvements. If materials are fur- nished for two buildings, it is not necessary to show that they went into the particular building on which it is sought to establish the lien. 45 1126. Of liens on the wife's property by virtue of contracts made with the husband. Where labor was performed on the wife's house under a contract with her husband, as her agent, for her use and benefit, and with her knowledge and consent, and for which both promised to pay, a lien exists against her property. 46 But the agency of the husband will not be presumed from the marital relation alone, nor from the fact that the lumber was purchased by the husband and used by him in the 40 Code, Sec. 3089; Logan v. At- ** Coates v. Shorey, 8-416; Jonea tix, 7-77; Coates v. Shorey, 8-416; v. Swan, 21-181; Stockwell v. Car- Neilson v. Iowa E. R. Co., 51-184; penter, 27-119; Miller v. Hollings- Jones v. Swan, 21-181; Stockwell worth, 33-224. v. Carpenter, 27-119; Conrad v. Lewis v. Saylor, 73-504; Will- Starr, 50-470. iams v. Judd-Wells Co., 91-378; *i Jones v. Swan, 21-181; Stock- Bartlett v. Bilger, 92-732; Roosa well v. Carpenter, 27-119; Foerder v. Billingsley, etc., Com. Co., 74-51; v. Wesner, 56-157; Carney v. Cook, see Bowman v. Newton, 72-90. 80-747. "Burdick v. Moore, 24-418; Neilson v. Iowa B. R. Co., 51- Kidd v. Wilson, 23-464; Frank v. 184. Hollands, 81-164. Coates v. Shorey, 8-416. 312 MECHANICS' LIENS AND CLAIMS. [ 1127. erection of a house upon the land of his wife. 47 When property is purchased by the husband to improve the land of the wife, and it is so used with her acquiescence in the enhancement of her separate property, with full knowl- edge on her part that it is not paid for, and of all the facts, the seller will have an equitable lien on the property for the value of the materials furnished. 48 But if a husband, against his wife's protest, purchases lumber on his own credit and uses it to build an addition to a barn on his wife's land, a lien does not attach to her land nor to the improvements made with such lumber for the price there- of. 49 The property of a married woman is subject to a lien for improvements made under a contract with her, or by any one authorized to contract for and bind her. 50 And it is presumed that such contracts might be ratified by the wife, even though the one making them had no authority so to do. 51 It is said that where a wife owns land and the husband erects a dwelling house thereon, that the establishment of a lien on the building is not in- consistent with her ownership of the land. 52 While mere knowledge of the wife that the husband is purchasing material on credit which is being used in constructing a building on her land will not subject such land to a me- chanic's lien therefor. 53 Where the wife furnished the husband with money to buy lumber for a house and he purchased the same with such money from plaintiff, with whom he had a general account for lumber, without directing on whose account the money paid should be applied, the seller can not apply payment on the hus- band's general account and claim a lien on the property of the wife. 54 1127. Extent of lien generally. The entire land upon which such building, erection or other improvement 47 Miller v. HolUsworth, 33- G. Gr., 435; Bissell v. Lewis, 56- 224, and 36-163; Price v. Seydel, 231. 46-696; Nelson v. Cover, 47-250. Burdick v. Moulton, 53-761. 48 Miller v. Hollingsworth, 36- " Estabrook v. Riley, 81-479. 1B3; see Nelson v. Cover, 47-250. " Young v. Swan, 69 N. W., 566. 49 Getty v. Tramel, 67-288. " Bartlett v. Mahlum, 88-329. BO Greenough v. Wiggington, 2 1127.] MECHANICS' LIENS AND CLAIMS. 343 is situated, including as well that part of the land not covered with the building, is subject to the lien to the extent of all the right, title and interest owned therein by the owner thereof, for whose immediate use or bene- fit the labor was done or performed, or the things were furnished; and when the interest owned in said land by the owner of such building, erection or other improve- ment is only a leasehold interest, the forfeiture of the lease for the non-payment of rent, or for non-compliance with any of the other stipulations therein, will not forfeit or impair a mechanic's lien, so far as concerns said build- ings, erections or improvements, but the same may be sold to satisfy the lien, and may be removed within thirty days after the sale thereof, by the purchaser. 55 So, the lien attaches to a building, for materials furnished for its erection, on land held by the vendee under contract of purchase, and such lien, as to the building, is prior to the vendor's lien for unpaid purchase price, but the ven- dor's lien is superior on the land. 56 It attaches to the homestead. 57 It attaches against a party having possession under a bond for a deed, and a subsequent procurement of the full legal title by the holder of the bond will not affect the lien. 58 And it is said the lien may be enforced when, by contract, payment was to be made in land or other property. 59 The lien attaches to the building or improvement erected with the mate- rials furnished, but does not follow the material in the hands of a vendee of the purchaser and attach to a build- ing erected by him out of such material. 60 But a lien will attach to an equitable title and follow it into the hands of any one to whom it may pass, and a mere substitution of another contract for that under which the property is held will not defeat the lien, if the new contract was given as evidence of the same rights which were held under the old. 61 The lien having once attached to land, will remain 55 Code, Sec. 3090. ** Same as No. 56. SB Stock-well v. Carpenter, 27- 59 Riiey v. Ward, 4 G. Gr., 21. 119; Monroe v. West, 12-119. e Heaton v. Horr, 42-187. 67 Code, Sec. 2975. ei Clark v. Parker, 58-509. 344 MECHANICS' LIENS AND CLAIMS. [ 1127. thereon after the improvements have been destroyed or removed. 62 A lien for materials furnished for the erec- tion of a house will not cover a separate house standing on the same undivided lot, but is confined to the house for which the materials were furnished and so much of the lot as is properly appurtenant thereto. 63 Every per- son for whose immediate use or benefit any building, erection or other improvement was made, having the ca- pacity to contract, including the guardians of minors or other persons, are included in the word "owner." 64 In section 3091 of the code, it is provided that when material has been furnished or labor performed in the construc- tion, repair or equipment of any railroad, canal, viaduct or other similar improvement, the lien therefor shall ex- tend and attach to the erection, excavation, embank- ment, bridges, road bed and all the land on which the same may be situated, including rolling stock thereto ap- pertaining and belonging, all of which, except the right of way, constitute the building, erection or improvement. Under prior laws it has been held in the case of Bear v. the B., C. K. & M. R. Co., 48 Iowa, 619, that a mechanic's lien does not extend to the whole line of the road, and that the improvements are of such a character that they can not be sold under the lien and removed by the pur- chaser; that the lien of a mechanic for repairs on a com- pleted railroad is not paramount to the lien of a mort- gage executed after the commencement and before the completion of the road, nor when the improvements con- stituted an integral part of the road; and in the case of Xelson v. The Iowa Eastern R. Co., 51 Iowa, 184, the court held that a mechanic's lien upon a railroad would not embrace the rolling stock thereon; also that a lien for materials furnished for the construction of a road covered only the completed portion of the road; but the fact that the road, as projected when the materials were 02 Same as No. 61. Carpenter, 27-119; Monroe v. West es Ewing v. Allen, 68 N. W., 702. 12-119; Jameson v. Gile 67 N W ' e* Code, Sec. 3096; Stockwell v. 396. 1128.] MECHANICS' LIENS AND CLAIMS. 345 furnished, was not fully completed, would not defeat the lien. 1128. Of priority of the lien. The lien takes prior- ity as between two or more persons claiming mechanic's liens upon the same property according to the order of the filing of the statements and accounts therefor. 65 They take priority over all garnishments upon the person of the owner for the contract debt made prior or subsequent to the commencement of the furnishing of the material or performance of the labor, without regard to the date of filing the claim for the mechanic's lien. 66 They will be preferred to all other liens and incum- brances which may attach to or upon such buildings, erections or other improvements, or either of them, and to the land upon which they are situated, made subse- quent to the commencement of said, buildings, erections or other improvements, provided that the rights of pur- chasers, incumbrancers and other persons who acquire interests in good faith for a valuable consideration, and without notice, after the expiration of the time for filing claims for liens, shall be prior to the claims of all con- tractors or sub-contractors who have not, at the time such rights and interests were acquired, filed their claims for mechanic's liens. 67 Liens for material or for work and labor including those for additions, repairs, and better- ments attach to the buildings, erections, or improve- ments for which they were furnished or done, in prefer- ence to any prior lien, incumbrance or mortgage upon the land upon which such erection, building or improvement belongs or is erected or put. When such material was furnished or labor performed for the erection or construc- tion of an original and independent building, erection or other improvement commenced since the attaching or execution of such prior lien, incumbrance or mortgage, the court may, in its discretion, order and direct such 65 Code, Sec. 3095; Robertson v. " Code, Sec. 3095; see Gilbert v. Barrack, 80-538. Tharp, 72-714. ee Code, Sec. 3095. 346 MECHANICS' LIENS AND CLAIMS. [ 1128. building, erection or improvement separately sold under execution, and the purchaser may remove the same with- in such reasonable time as the court may fix. But if the court finds that said building should not be separately sold it will take an account and ascertain the separate values of the land, and the erection, or building or other improvement and order the whole sold and distribute the proceeds of sale so as to secure to the prior mortgage, or other lien, priority upon the land, and to the mechanic's lien priority upon the building, erection or other improve- ment. If the material furnished or labor performed was for an addition to, repairs of or betterments upon build- ings, erections or other improvements, the court will take an accounting of the values before such material was fur- nished or labor performed, and the enhanced value caused by such addition, repairs or betterments, and upon a sale of the premises, distribute the proceeds of the sale so as to secure the prior mortgagee or lien holder priority upon the land and improvements as they existed, prior to 'the attaching of the mechanic's lien, and to the mechanic's lien holder priority upon the enhanced value caused by such additions, repairs or betterments, and in case the premises do not sell for more than sufficient to pay off the prior mortgage or other lien, the proceeds will be applied on such prior mortgage or other liens. 68 It has been held that a mechanic's lien had priority on the building over the lien of a vendor for the purchase money of the land. 69 And under a prior statute it was held a mechanic's lien for work or materials furnished in making additions or repairs to a building, would not be a prior lien on the building to a mortgage which had existed on the premises before such mechanic's lien. But the mechanic's lien would have priority as to an independent structure on the land. 70 And it is said that 68 Code, Sec. 3095; and German Frost v. Clark, 82-298; James v. Bk. v. Schloth, 59-316; Curtiss v. Gile, 67 N. W., 396; and see Town- Broadwell, 66-662; Miller v. Seal, send v. White, 71 N. W., 337. 71-392. Getchell v. Allen, 34-559; Equi- 69 Stockwell v. Carpenter, 27-119; table L. Ins. Co. v. Slye, 45-615; 1128.] MECHANICS' LIENS AND CLAIMS. 347 a mechanic's lien attaches from the commencement of the building or improvement, from the furnishing of the first item therefor, and takes precedence over a mortgage executed after that time, although the particular work or material for which the lien was claimed was not done or promised until after the making and recording of the mortgage. 71 That a party furnishing materials or ma- chinery for a building by the filing of his statement and claim for a lien acquires one upon the entire structure, and what he furnishes becomes in turn subject to all liens of his fellow mechanics which attached earlier. 72 A mechanic's lien will have priority over a mortgage exe- cuted and recorded within ninety days from the date of the last item of work done or material furnished. 73 Where a mechanic's lien was not filed against a railroad until twenty-six months after the materials were furnished, and a sale of the road made after the ninety days within which the lien should have been filed, held, that the pur- chaser at such sale took the road discharged of the lien. 74 And in the same case it was held that a mechanic's lien upon a railroad for the construction of a new bridge and abutment in place of an old one was not a paramount lien to a mortgage upon the road previous to the erection of such new bridge, and that the lien of a mechanic for re- pairs on a completed railway is not paramo.unt and su- perior to the lien of a mortgage executed after the com- mencement, and before the completion of the road, nor will the lien of the mechanic upon the particular work performed by him take precedence of such" mortgage, when the improvements he has made constitute an inte- gral part of the road. 75 The provisions of paragraph 4 O'Brien v. Pettis, 42-293; see Stock- Evans v. Gripp, 35-371; see Gil- well v. Carpenter, 27-119; Fletcher bert v. Tharp, 72-714. v. Kelley, 88-475; Bartlett v. Bil- 74 Bear v. B., C. R. & M R Co ger, 92-732; Luce v. Curtis, 77-3 <7. 48-619. 71 Neilson v. Iowa E. R. Co., 44- 75 Bear v. B., C. R. & M. Co., 48- 71; Iowa Mortgage Co. v. Shau- 619; (this case was decided on the quest, 70-124. law as it stood prior to the taking 72 Equitable L. Ins. Co. v. Slye, effect of Chapter 8 of Title 15 of the 45-615. Code.) 73 Lamb v. Hanneman, 40-41; 348 MECHANICS' LIENS AND CLAIMS. [ 1128. of section 3095 of the code, have no application when the mortgage has been foreclosed and the premises sold thereunder before the materials for which the lien is claimed have been furnished. In such case the statutory right to redeem is the only right which can be enforced. 76 Under a prior law it was held that the purchaser of a building sold on a mechanic's lien could only remove the same from the leased premises on the same terms that the tenant could, and if one of the conditions of the lease to the tenant was that he could not remove the building- while in arrears for rent, then the purchaser must pay the rent before he can remove it. 77 When plaintiffs under a contract with "W. & Son" furnished materials for the enlargement of a building occupied by them, and after- ward "W." mortgaged the premises to "E." plaintiffs, in an action to foreclose their lien, sought to have it estab- lished as superior to "E.'s" mortgage, but they failed to show that "W. & Son" had such an interest in the prop- erty that a mechanic's lien would attach thereto; it was held the evidence did not warrant a decree making their alleged lien superior to the mortgage. 78 October 20, 1882, "B." executed a deed of trust upon certain real estate to secure an existing debt. Between November 9, 1882, and April 3, 1883, the plaintiffs fur- nished "B." materials for the erection of a building on the real estate. June 4, 1883, the property was seized upon an attachment at the suit of "P." v. "B." July 3, 1883, plaintiffs filed their statement for a mechanic's lien; it was held that the deed of trust was superior to the me- chanic's lien on land and improvements; that the me- chanic's lien was superior to the attachment, because, while the statement for the lien was-not filed within nine- ty days, as required by statute, "P.'s" right accrued before the expiration of the ninety days, and by the express lan- guage of the statute, it is only purchasers and incum- brancers in good faith, without notice, whose rights ac- Shepherdson v. Johnson, 60- " Oswold v. Buckholtz, 13-506. 239. Dierks v. Walrod, 66-354. 1128.] MECHANICS' LIENS AND CLAIMS. 349 crue after ninety days, that are not defeated by the lien in such cases. 79 As between a party claiming a lien who has not filed his statement until after the expiration of the ninety days, and a prior mortgagee whose mortgage was not exe- cuted until after the expiration of such period, the bur- den of proving that the mortgagee had notice at the time of taking his mortgage, of the existence of the mechanic's lien, is on the one claiming such lien. 80 In a case where the lessees of a mill under verbal lease for five years, put in machinery and fixtures and afterward gave a chattel mortgage thereon, it was held that those furnishing the machinery who filed their statement in time, had a lien upon it prior to the mortgage, even though such fixtures were chattel property. 81 If a contract on which a lien is claimed does not provide for interest, or attorney's fees, the parties can not enter into a contract covering such items which will be binding as against a mortgage exe- cuted after the lien attached and prior to the making of such supplemental contract. 82 If one goes into posses- sion of property subject to a vendor's lien, it is prior to a mechanic's lien for materials subsequently furnished. 83 One acquiring a mechanic's lien is charged with notice of all liens effecting the property covered by it, whether they be recorded or not, and such lien holders, not made parties to an action to foreclose a mechanic's lien, will not be concluded by the decree, which is entered after the recording of such lien. 84 If the holder of a mechanic's lien buys the property covered by it at a judicial sale under a judgment on such lien, the lien will not be merged, so as to render it subor- dinate to an intervening mortgage, unless such was the intention of the parties. 85 A mechanic's lien for material for improvements on leased premises will be paramount 79 Curtis v. Broadwell, 66-662. ss Logan v. Taylor, 20-297. *o Hoskins v. Carter, 66-638, and 84 Nashua Trust Co. v. W. S. Ed- cases cited. wards Mfg. Co., 68 N. W., 587. si Nordyke v. Hawkeye W. M. ss Delaware R. C. Co. v. Daven- Co., 53-521. port & St. P. R. Co., 46-406. 82 Bissell v. Lewis, 56-231. 350 MECHANICS' LIENS AND CLAIMS. [ 1129, 1130. to the landlord's lien for rent and to a chatel mortgage taken by the landlord on the improvements before action was begun to establish the mechanic's lien. 86 But a me- chanic's lien will be inferior to a mortgage filed for record before work on the improvements began. 87 Further as to questions of priority. 88 1129. When the lien attaches Its continuance. Whatever is done by the mechanic under his contract, dates, as to his lien, from the day he commences work, and not from the time of actual performance of the sev- eral parts of the undertaking. 89 And the lien for all ma- terials furnished attaches when the first item is fur- nished. 90 The lien continues for ninety days after all the work is done, or all the material furnished under the con- tract. 91 And as between the parties to the contract, the lien may continue for a longer period, and so it may as against one whose rights against the property accrued before the expiration of the ninety days. 92 The doctrine above stated, that the lien attaches when the work first commences, or the first material is furnished, applies when a contract is shown, and the work is done continu- ously; not to cases where the work is done under differ- ent contracts, or where such time intervenes as to raise a presumption that the work had ceased, and the contract been completed. 93 1130. Of preserving the lien. The law keeps the lien alive for ninety days after the work under the con- tract is completed, or the materials are all furnished; but to preserve it after the ninety days, the person claim- ing the lien, whether contractor or sub-contractor, must file with the clerk of the district court of the county in which the building, erection or improvement to be SB National L. Co. v. Bowman, sa Moore v. West, 12-119. 77-706. so Jones v. Swan, 21-181; Dela- ST Bartlett v. Bilger, 92-732. ware R. C. Co. v. Davenport & St. ss Eagle Iron Works v. Des M. P. R. Co., 46-406; Conrad v. Starr, S. R. Co., 70 N. W., 193; Kiene v. 50-470. Hodge, 90-212; Luce v. Curtis, 77- si Code, Sees. 3092, 3093. 347; Townsend v. White, 71 N. W., 92 Code, Sees. 3092, 3093; Curtis 337; Iowa Mortgage Co. v. Shau- v. Broadwell, 66-662. quest, 70-124. 93 Jones v. Swan, 21-181. 1130.] MECHANICS' LIENS AND CLAIMS. 351 charged with such lien is situated, a just and true state- ment or account of the demand due him after allowing all credits setting forth the time when such material was furnished or labor performed, and when completed, and containing a correct description of the property to be charged with the lien, and verified by affidavit. Such verified statement must be filed by a principal contractor within ninety days, and by a sub-contractor within thirty days from the date on which the last of the material was furnished or the last of the labor performed. But a fail- ure or omission to file the same within the periods above stated will not defeat the lien except as against purchas- ers or incumbrancers in good faith without notice, whose rights accrued after the thirty or ninety days, as the case may be, and before any claim for the lien was filed. But when the lien is claimed upon a railway, the sub-con- tractor has sixty days from the last day of the month in which such labor was done, or material furnished, within which to file his claim therefor. 94 When a mechanic's lien which is junior to a mortgage on the premises is filed before the expiration of the ninety days, it will not be prejudiced by the commencement of a suit, to foreclose the mortgage prior to such filing, nor will such lien-holder be affected by such foreclosure proceeding to which he is not made a party. 95 If the party entitled to the lien fails to file the same until after the lapse of the ninety days, and the property in the meantime passes to an innocent purchaser, the lien can not be enforced against such pur- chaser, and this is so where the vendee takers the prop- erty under a bond for a deed and makes no actual pay- ments thereon, but executes his notes for the purchase price. 96 If a sub-contractor fails to do what is required of him by statute, it will be conclusively presumed that he has waived his right to a lien. 97 Against the holders 94 Code, Sec. 3092; Sanuval v. 95 Jones v. Hartsock, 42-147. Ford, 55-461; Jones v. Swan, 21- 96 Weston v. Dunlap, 50-183. 181; Ewing v. Folsom, 67-65; ? Brown v. Smith, 55-31. Jones, etc., Lumber Co. v. Murphy, 64-165. 352 MECHANICS' LIENS AND CLAIMS. [ 1130. of other existing liens it is not essential to the validity of a mechanic's lien that a statement and claim therefor should be filed with the clerk. 98 A sub-contractor on a railroad to secure a mechanic's lien must file his claim within sixty days from the last day of the calendar month in which the work was performed. The word "done" in the statute has reference to the time of the performance of the work and not to the time when the work of the sub-contractor is completed, and each month's work for this purpose is considered as sep- arate from that of the other months." It is said that one who has actual notice when taking a conveyance that material has been furnished for a building and has not been 'paid for, cannot take advantage of the negli- gence on the part of the claimant who has failed to file his statement for a lien. 1 If a lien is claimed for mate- rial furnished for, and used in, a building within ninety days prior to the time it is asserted, such claim cannot be enforced against a purchaser of the property without proof that the material was used in the particular build- ing. 2 The statement filed for the lien must be a F J _ate- ment or account of the demand due the plaintiff and must show the amount of the account on which the de- mand is founded. 3 Under the revision it was held that the name of the owner of the property against which the lien was claimed, need not be set out in the statement, and when the owner had died before the filing of the statement, it was held sufficient to make out the state- ment against the estate, though the names of the heirs owning the property were not stated. 4 When a sub- contractor filed a statement and claim for a mechanic's lien and included therein his account for money received and disbursed for his immediate employers, with his ac- count for labor performed by him, and claimed a lien for s Bissell v. Lewis, 56-231. Ewing v. Folsom, 67-65; Hug v. 9 Sandval v. Ford, 55-461. Hintrager, 80-359; Wetmore v. 1 Lee v. Hoyt, 70 N. W., 95. Marsh, 81-677; Novelty Iron 2 Roose v. Billingsly, etc., Com. Works v. Capital City Oat Meal Co., 74-51. Co., 88-524. s Valentine v. Rawson, 57-179; * Welch v. McGrath, 59-519. 1130.] MECHANICS' LIENS AND CLAIMS. 353 a general balance which was greater than the amount actually due him for labor, and such facts appeared on the face of his statement, it was held the claim filed w r as not a "just and true statement," as required by statute, and he was not entitled to a lien. 5 But see Chase v. Gar- ver Coal & Mining Co., 90 Iowa, 25. As to defective de- scription of the property. 6 As to mistakes in description and the effect thereof. 7 Unintentional mistakes in the account will not defeat the lien, but it would be other- wise if the account was erroneously stated with intent to defraud. 8 If one indebted to a lumber dealer on two accounts for material for two different buildings makes a payment which is first applied by the creditor to one account and afterward to the other, in the absence of mistake, the lien under the first account is released to the extent of such payment. 9 The statement for a lien may be filed by one of the members of a firm, but whether a statement filed after the assignment of the claim but in the name of the assignor, is sufficient, qua3re. 10 Where, by agreement between the owner and contractor, a claim which the former held against the latter was to be allowed as a payment on the last in- stallment to be paid under the contract, and the sub-con- tractor's claim for a lien was filed more than thirty days after the last item in his account, it was held he could recover only what remained due from the owner to the contractor after deducting the said claim. Under a prior statute it was held that a mechanic's lien for labor or material held good against intervening incumbrances for ninety days from the date of the last item without filing a statement or claim. After that time the filing was necessary to preserve the priority of the lien. 11 And it was held under chapter 5 Stubbs v. Clarinda, etc., 65-513. Green Bay Lumber Co. v. e Chicago Lumber Co. v. Des M. Miller, 62 N. W., 742. D. P., 65 N. W., 1017; Roose v. Chicago Lumber Co. v. Woods, Billingsly, etc., Com. Co., 74-51. 53-552. 7 Bissell v. Lewis, 56-231; Gray 10 Ford v. Ind. Dist., 46-294. v. Dunham, 50-170; Nat'l L. Co. v. "Noel v. Temple, 12-276; Jones Bowman, 77-706. Vol. n23 354 MECHANICS' LIENS AND CLAIMS. [ 1130. 49, laws of 1874, that the requirement of that statute that the written settlement with the sub-contracor should be given to the contractor by the laborer claiming the lien, was complied with by filing a settlement with the clerk of the district court within the thirty days al- lowed for filing the lien. 12 When the statement of the account was made in the name of the plaintiffs and the affidavit for the lien was made by the agent at the place where the material was sold, and stated that he was the agent of plaintiffs, that he sold the material, and there was due him a sum specified, and claimed a lien there- for, it was held that it was a claim for a lien by the plain- tiffs and not by the agent 13 So if the account is made out against the husband alone when the property is owned by the wife it will not defeat the lien, when notice of the lien filed, correctly described the property and claimed the lien against both husband and wife. 14 The lien as against the owner of the property is not defeated by a failure to file the state- ment with the clerk of the district court within ninety days from the time the work was done or materials fur- nished. 15 Below is given a form of account for mechan- ic's lien which can be varied to suit the circumstances of each particular case; it will be noticed, however, that the affidavit must be substantially the same in all cases. FORM OF STATEMENT OF ACCOUNT FOR MECHANIC'S LIEN. , in account with 1887, Dr. (1) January 2d, to (2) February 5th, to.. (3) March 15th, to v. Swan, 21-181; Evans v. Tripp, is Lamb v. Hanneman, 40-41. 35-371; Chicago L. Co. v. D. M. i* Burdick v. Moon, 24-418; Kidd D P Co., 65 N. W., 1017. v. Wilson, 23-464. 12 Bundy v. K. & D. M. R. Co., is Kidd v. Wilson, 23-464. 49-207. 1131.] MECHANICS' LIENS AND CLAIMS. 355 Cr. (4) February 10th, by cash. (5) March 20th, by cash... (6) May 1st, by cash 5 Balance due ? State of Iowa, ) County. f ss< , being duly sworn says, that on the day of , 18 , he made a contract with one to furnish materials (or labor, ma- chinery or fixtures, as the case may be) for a certain (building, erection or other improvement, as the case may be) situated upon the following described land of which the said was then and is now (or as the case may be) the owner, in (fee simple, or if it be a less interest state it,) to wit (describe the land) ; that under and by virtue of said contract the affiant furnished (materials, or labor and machinery or fixtures, as the case may be) for said (building, erection or other improvement) as specified in the above account, at the respective dates, and at and for the respective prices, stated in said account; that said account is a just and true account of the (labor done, or materials, machinery, etc., as the case may be) aforesaid, and there is due and owing him thereon after allowing all credits, the sum of dollars, for which he claims a mechanic's lien upon said (building, erection or improvement, as the case may be) including the land on which the same is situated. Subscribed and sworn to before me, and in my presence by the said this day of , 18. [Seal.] . , notary public, in and for county, Iowa. 1131. Of the duties of the clerk. It is the duty of the clerk when the account or statement is filed in his office to indorse thereon the date and hour of filing and make an abstract thereof in a book kept by him for that purpose and properly indexed, containing the date and hour of its filing, the name of the person filing the lien, the amount of the lien, the name of the person against whom the lien is. filed, and a description of the property to be charged with the lien. 16 But it was held under the revision, section 1851, which is similar to the provisions of the present law, that the requirement that the clerk's abstract should contain the is Code, Sec. 3100; Welch v. McGrath, 59-519; Ewing v. Folsom, 67-65. 356 MECHANICS' LIENS AND CLAIMS. [ 1132, 1133. name of the person against whose property the lien was filed, only required that it shall contain the name of the person against whom the account was filed, and the claim for a lien was made, and it did not require that the claim should state the name of the owner of the property against which the lien was claimed; and when the per- son against whom the claim existed was dead, the claim was properly filed as against the administrator of his estate, without naming the heirs who were the owners of the property against which it was sought to establish the lien. 1T When a claim for a lien was marked "filed," over the signature of one who appeared, from a jurat at- tached and belonging to the same paper, to be clerk of the district court, it was held that it appeared prima facie that the paper was filed by the clerk of the district court. 18 1132. By whom and in what court liens may be enforced. Any person having filed a claim for a mechanic's lien, and being entitled to such lien, may bring an action to enforce the same in the district or su- perior court of the county wherein the property to be affected by the lien is situated, and a like action may be brought on any bond given in lieu of a lien. 19 Suit to enforce a lien may be brought by one who becomes the owner of the debt by assignment, though the mere in- choate right to a lien is not assignable so as to vest in the assignee the right to file and perfect the same. 20 And in an action in equity to enforce a mechanic's lien the court may render a judgment on the account, though it does not find that plaintiff is entitled to an equitable remedy. 21 1133. Who made defendants. In an action to enforce a mechanic's lien, the party against whom it is sought to enforce the contract must, and all other per- IT Welsh v. McGrath, 59-519. 3099; Merchant v. Ottumwa, 54- is Ewing v. Folsom, 67-65. 451; First Nat. Bk. v. Day, 52- 19 Code, Sec. 3098. 680, and 64-118. 20 Brown v. Smith, 55-31; Lang- 21 Green Bay L. Co. v. Miller, 62 an v. Sankey, 55-52; Code, Sec. N. W., 742. 1134, 1135.] MECHANICS' LIENS AND CLAIMS. 357 sons interested in the matter in controversy and in the property charged with the lien may be made parties de- fendant, and if not made parties, they will not be bound by the proceedings. 22 And the owner of real property, on which a mechanic's lien is sought to be established, is a necessary party to an action for that purpose. 23 Other incumbrances of the same kind, who hold liens which are junior to the lien of plaintiff, must be made defendants, or they will not be bound by the proceed- ings; and, while mortgagees and judgment creditors may, at the option of the plaintiff, be made parties, yet the better practice is to make all persons defendants who have or claim liens which are junior to plaintiff's lien. 1134. When lien will be forfeited, Upon the written demand of the owner, his agent or contractor, served upon the person claiming the lien, the action for the enforcement of the lien must be commenced within thirty days thereafter or the lien will be .forfeited. 24 And where there was an attempt made to commence the action within the thirty days, but the notice served was void because not stating the term at which the defend- ant was required to appear, it was held that another no- tice, served after the expiration of the thirty days, to which defendant appeared, was not in compliance with the law, and the lien could not be established. 25 1135. Of pleadings, practice, etc. Actions to en- force mechanic's liens must be prosecuted by equitable proceedings, and no other cause of action cau be joined therewith. 26 But it has been held that where several parties commenced actions against a common defendant to enforce mechanic's liens, that it was competent for plaintiffs and defendant, by agreement, to have united therewith an ordinary action at law, prosecuted by or- 22 Code, Sec. 3462; Shields v. 24 Code, Sec. 3099. Keys, 24-298; Millard v. West, 50- 25 Jones, etc., v. Boggs, 63-589. 616. 26 Code, Sec. 3429; Sweetzer v. 23 Keller v. Tracey, 11-530. Harwick, 67-488. 358 MECHANICS' LIENS AND CLAIMS. [ 1135. dinary proceedings. 27 But where there is a misjoinder of causes of action the defect will be waived unless taken advantage of by motion at the proper time. 28 So, where an action at law was begun against one of the defend- ants on a promissory note, and plaintiffs afterward amended, bringing in other parties and seeking to fore- close and establish a mechanic's lien, the amendment was properly stricken from the files, the plaintiff refus- ing to elect on which cause of action he would stand. 29 The appearance term is the trial term in actions to en- force mechanic's .liens. 30 In an action to foreclose a me- chanic's lien, when there is a general denial of the peti- tion, plaintiff must prove that the buildings on which the improvements were made were situated on the land described in the statement and affidavit filed in the clerk's office, and that the defendant was the owner of the land, and such facts are not proved by the introduc- tion in evidence of such statement and affidavit. 31 As to what interest must be shown in real estate in order to enforce a lien against it 32 The fact that the contract for the lien is in writing will not exclude evi- dence to show the purpose for which the materials men- tioned in the contract were to be used. 33 The statement filed with the clerk is the limit of plaintiff's recovery only with respect to purchasers and incumbrancers. 34 Under a prior law it was held that the enforcement of a mechanic's lien was an action at law and no equity of re- demption existed. 35 This is changed by the existing statute making it a proceeding in equity, and the right of redemption exists from sales made under judgments enforcing mechanic's liens as in other cases. 36 27 Hines v. W. Coal & M. Co., 48- 32 Dierks v. Walrod, 66-354- Lane v. Snow, 66-544. 28 Code, Sec. 3548; Flynn v. Des ss Neilson v. Iowa E. R. Co 51- Moines & St. L. R. Co., 63-503; 184; and cases cited. Hines v. Homer, 86-594. 34 Same as No. 33. 29 Sweetzer v. Harwick, 67-488. 35 state v. Eads, 15-114, and cases so Code, Sec. 3656. cited. si Hutton v. Maines, 68-650; see as Code, Sec. 3429; Jones v. Har- Pease v. Thompson, 67-70. sock, 42-147; see Phelps v Pope 53-691. 1136.] MECHANICS' LIENS AND CLAIMS. 859 But a mechanic's lien before judgment thereon is not of such a character as to entitle the holder to redeem. 37 If the defendant, having been served with an original notice in an action to enforce a mechanic's lien, fails to appear and plead within the time provided by statute, judgment may be taken by default against him. Where a statement for a lien was filed against a society, and the sheriff was a member of its building committee, the delivery to him for service of a notice of the claim, and the filing thereof, addressed to the society, is not service on the society, it not appearing what the duties of the building committee were or that it was then in exist- ence. 38 On the foreclosure of a lien the claim can not be amended to include land omitted, as against a purchaser in good faith without notice, and after the time for filing liens has expired and before any claims for liens are filed. 39 Under section 3089, of the code, a right to a lien on improvements may exist without any contract with the owner of the fee, but by contract with the owner of improvements. 40 When a sub-contractor undertakes to enforce a me- chanic's lien he should show in his petition such indebt- edness from the owner to the contractor as will justify the court in decreeing a lien. 41 A lien will not be de- creed when the pleadings fail to show that the material was furnished or work done, upon an improvement, or that anything is due. 42 1136. Of satisfaction of the lien. Whenever a lien has been claimed by filing the same in the clerk's office and it is afterward paid, the creditor must ac- knowledge satisfaction thereof upon the proper book in such office, or otherwise, in writing, and if he neglects to do so for thirty days after demand in writing he will for- feit twenty-five dollars to the owner or contractor and ST Code, Sec. 4046. Gillivray v. Dist. Twp., 65 N. W as Steele v. McBurney, 65 N. W., 974. 332. 40 Lane v. Snow, 66-544. SB Chicago Lumber Co. v. D. M. Martin v. Morgan, 64-270. D. P., 65 N. W., 1017; and see Me- Roberts v. Campbell, 59-675. 360 MECHANICS' LIENS AND CLAIMS. [ 1137. be liable to any person injured to the extent of his in- jury. 43 If satisfied on the record, it will be sufficient to state in substance that the amount of the lien has been paid and satisfied; if the satisfaction is evidenced by a separate writing it may be in the following form: FORM OF ACKNOWLEDGMENT OF SATISFACTION OF MECHAN- IC'S LIEN. In consideration of the sum of dollars, in hand paid by , of county, Iowa, I hereby release and acknowledge satisfaction in full of a certain mechanic's lien for the sum of dollars, claimed and filed by me in the office of the clerk of the district court within and for county, Iowa, on the day of , 18 , on the follow- ing described property to wit: (here describe the property.) Witness my hand this day of , 18 . If satisfaction be thus made it must be filed with the clerk of the district court, who must enter satisfaction of the lien upon the record, or on the margin thereof, in .the same manner as the satisfaction of a mortgage is en- tered. 1137. Of the petition. The petition for a mechan- ic's lien may be in the following form: FORM OF PETITION FOR MECHANIC'S LIEN. Title, ) Venue, f Par. 1. Plaintiff states: That on the day of , 18, he made a parol (or written) contract with the defendant to furnish him (here state what, as lumber, etc.), for a certain two-story dwelling house (or barn, or store building, etc.), situated on the following described real estate (here describe the entire tract of land). Par. 2. That defendant, at the time said contract was made, was, and ever since has been, the owner in fee simple of said land, and the buildings situated thereon (if his interest is less than a fee simple, state what it is). Par. 3. That under and by virtue of the contract heretofore re- ferred to plaintiff furnished the lumber (or other materials, as the case may be), as set out in exhibit "A," attached hereto and made a part hereof. Par. 4. That said lumber was furnished for the building aforesaid Code, Sec. 3101. 1138.] MECHANICS' LIENS AND CLAIMS. 361 at the respective dates, and at and for the respective prices, as is shown in said exhibit "A." Par. 5. That on the day of - , 18, plaintiff filed in the office of the clerk of the district court of county, Iowa, a just and true account of his demand due and owing him from defendant for said lumber (or materials, etc.), furnished as aforesaid, verified by affidavit and claiming a mechanic's lien therefor; copies of said account and affidavit are attached hereto, marked exhibits "A" and "B" respectively, and made a part hereof. Par. 6. That the defendants , have, or claim to have, some lien or interest in or to the real estate heretofore described, but plaintiff avers that such lien or interest, if any, is junior and inferior to plain- tiff's said lien. Par. 7. That there is due plaintiff on said account the sum of dollars with interest thereon from the day of , 18 , for which he demands judgment against said defendant , with interest and costs, and prays that his mechanic's lien be established and en- forced against the building and land aforesaid as provided by law; that the lien of each and all of the defendants in this action to the real es- tate above described be decreed to be junior and inferior to plaintiff's lien thereon, and that the equity of redemption of each and all of said defendants be forever barred and foreclosed, and that special execution issue for the sale of said premises, or so much thereof as may be neces- sary to satisfy said judgment, interest and costs, and for such other re- lief as may be equitable in the premises. (Add verification and exhibits "A" and "B.") As the relief which should be prayed for will depend on the circumstances, the above form of prayer will have to be varied to suit the facts in each case. If a note has been taken for the amount of the account the following should be inserted in lieu of the first part of paragraph seven above: "That on the - day of - , 18 , the defendant, - , executed to plaintiff his certain promis- sory note in words and figures following, for the amount then due on said account (here set out the copy of note). That no part of said account or note has been paid, that it is plaintiff's property, and there is due plaintiff on said note the sum of - - dollars, with - - per cent, interest thereon from - - day of - , 18 , for which he pays judgment against said defendant and for costs." Then follow with prayer for lien, etc., as above. 1138. Of judgment. It is said that when a me- chanic's lien is confirmed by judgment, it is binding upon 362 MECHANICS' LIENS AND CLAIMS. [ 1139. the parties and all persons who are represented by them and claim under them, or are privy to them, and they are estopped from litigating that which is conclusive upon those with whom they thus stand related. 44 A judgment enforcing a mechanic's lien may be corrected by subse- quent proceedings to show that the lien attached at an earlier date, and it is held that the plaintiff is not estopped by the first entry from asserting his precedence over other lien-holders whose liens attached before that entry was made. 45 Whether this could be done against parties whose liens attached after the entry, qu^re. When the defendant in a mechanic's lien fore- closure is the owner of both land and building, and there is no prior lien on the land, it is error to order a sale of the building alone, as its removal from the land would defeat the owner's right of redemption. 46 Under a prior statute providing for a sale and removal of improve- ments in certain cases, it was held that if the nature of the improvement was such that it could not be removed, the lien would be postponed to the prior incumbrance on the land. 47 And it was also held erroneous to decree a sale of land and buildings together and the payment of a part of the proceeds to the mechanic's lien holder in case of liens on buildings erected after the giving of a mortgage. 48 Where a mechanic's lien which misdescribed what was intended to be covered thereby had been foreclosed, the lien did not thereby become merged in the judgment, so that another lien, correctly describing the property, might not be filed. 49 1139. Of limitation of actions. Actions to en- force mechanic's liens must be brought within two years from the expiration of the thirty or ninety days, as the case may be, for filing the claims. 50 And the failure of a 44 State v. Eads, 15-114. son v. Reuter, 29-176; see First 45 Monroe v. West, 12-119. Nat. Bk. v. Elmore, 52-541. 4 Early v. Burt, 67-716. 49 Gray v. Dunham, 50-170. 47 Conrad v. Starr, 50-470. eo Code, Sec. 3447; Sub. 4. 48Brodt v. Bohkar, 48-36; Wil- 1140, 1141.] MECHANICS' LIENS AND CLAIMS. 363 mechanic to file his statement and claim for a lien under the statute will not extend the time within which the action to enforce the lien must be commenced. 51 But a failure to enforce a lien until it is barred by the statute of limitations will not prevent the lien-holder from re- covering on his debt against a person bound therefor. 52 1140. Sub-contractors, who are. All persons furnishing materials or doing work for which a lien is allowed are considered sub-contractors, except such as have contracts directly with the owner, proprietor, his agent or trustee. 53 1141. Of the sub-contractor's lien, how pre- served and how discharged. To preserve his lien as against the owner, and to prevent payments by the lat- ter to the principal contractor, or to intermediate sub- contractors, but for no other purpose, the sub-contractor must, after commencing such labor or furnishing such material, and within thirty days after the completion thereof, serve on such owner, his agent or trustee, a writ- ten notice of the filing of said claim, which notice may be served by any sheriff or constable, or other person, and if the party to be served, his agent or trustee, is out of the county wherein the property is situated, a return of that fact by the person charged with making such service, will constitute sufficient service from and after the time it is filed with the clerk. But the lien of such sub-contractor may at any time be discharged by the owner, contractor or intermediate sub-contractor filing with the clerk of the district court a bond in twice the amount of the sum for which the claim for the lien is filed, with two or more sureties, to be approved by the clerk, conditioned for the payment of any sums for which the mechanic may obtain judgment upon the demand of which such statement or account has been filed. But if no claim for a lien is filed within the period heretofore si Gilchrist v. Gottschalk, 39-311; 02 Black v. Howell, 56-630. Squier v. Parks, 56-407; Dimmick BS Code, Sec. 3097. v. Hinckley, 57-757. 364 MECHANICS' LIENS AND CLAIMS. [ 1141. mentioned, and the notice thereof is not served, or if such things being done, the bond above provided is filed, then the owner or contractor may thereafter proceed to make payments and adjust their claims without regard to the lien of the sub-contractor, and the owner is not required to pay a greater amount, or in any other man- ner, or at any other time, than is provided in his con- tract. 54 The notice above mentioned may be in the fol- lowing form: NOTICE OF FILING CLAIM BY SUB-CONTRACTOR. To : You are hereby notified that I did, on the day of , 18 , file with the clerk of the district court of county, Iowa, a true statement or account of the amount due me after allowing all credits for materials furnished (or labor performed for the erection of a certain dwelling house, or other building or improvement, as the case may be) on the following described real estate (here describe it) ; and claiming a mechanic's lien on said building and lands for dollars, the bal- ance due me thereon. Dated this day of , 18. The bond above provided for may be in the following form: FORM OF BOND TO DISCHARGE LIEN OF SUB-CONTRACTOR. Know all men by these presents, that we , principal, and and , sureties, all of county, Iowa, parties of the first part, are held and firmly bound to , of county, Iowa, party of the second part, and sub-contractor, in the penal sum of (here insert amount, which must be twice the sum claimed by the sub-contractor, etc.,) dollars, lawful money of the United States, well and truly to be paid. The condition of this obligation is this: That whereas as (sub-contractor, or as the case may be,) did, on the day of , 18 , file in the office of the clerk of the district court of county, Iowa, a statement of his claim and account due and owing him from and claiming a mechanic's lien therefor on the following real estate described therein, viz.: (here describe the land as in the claim filed.) The condition of this obligation is this: That, if the said par- ties of the first part shall and will pay to said second party, his heirs, assigns or administrators, any sum of money for which said second party may obtain judgment upon the demand of which said statement 54 Code, Sec. 3093. 1141.] MECHANICS' LIEXS AND CLAIMS. 365 or account has been filed, then this obligation to be void, otherwise it is to be and remain in full force and virtue. Witness our hands this day of , 18 . , principal. ' j. sureties. (Add justification.) A written notice of the filing of the claim is required, as the statute recognizes no other as sufficient. 55 The lien of the sub-contractor attaches only to the ex- tent of the balance due the contractor at the time the notice was given. 56 A sub-contractor who holds an open and unsettled account against his principal contractor, can not bring an action against the owner and establish a lien against his property without adjudicating, or at- tempting in any way to adjudicate, his claim against his contractor, and if he stands by and sees the owner pay the contractor in full, he is estopped from afterward as- serting his claim. 57 If a contractor has received pay- ment in full before making an agreement with a sub- contractor for materials, the sub-contractor can have no lien against the owner. 58 And if the owner has, without knowledge of the claims of sub-contractors, paid the con- tractor in full, he will not be liable on the claims of sub- contractors. 59 As against a sub-contractor, the owner may pay the contractor in accordance with the provis- ions of his contract, if he has reserved no power therein to discharge the claims of sub-contractors, and this is so, regardless of any knowledge he may have that labor and material has been furnished by a sub-contractor which has not been paid for. 60 Until the expiration of BO Lounsbury v. The I., M. & N. 52-335; Robinson v. State Ins. Co., P. R. Co., 49-255; Cutler v. McCor- 55-489; Hug v. Hintrager, 80-359; mick, 48-406; Jeure v. Perkins, 29- Thompson v. Spencer, 63 N. W., 262; Frost v. Rawson, 91-553; 695; Wickham v. Munroe, 89-666; Walker v. Queal, 91-704; Steele v. Hazzard v. Council Bluffs, 87-51. McBurney, 65 N. W., 332; Merritt " Vreelan v. Ellsworth, 71-347. v. Hopkins, 65 N. W., 1015. ss Mallory v. Marion Water 5 Cutler v. McCormick, 48-406; Works Co., 77-715. Utter v. Crane, 37-631; Stubbs v. 09 Parker v. Scott, 82-266. Clarinda, etc., 62-280; Kilbourne v. eo Epeneter v. Montgomery Jennings, 38-533; Jones, etc., v. County, 67 N. W., 93. Murphy, 64-165; Stewart v. Wright, 366 MECHANICS' LIENS AND CLAIMS. [ 1142. the thirty days the owner cannot, as against sub-con- tractors, pay the contractor except as provided by the terms of the contract. 61 When the contractor for a building gave to a party furnishing materials an order upon the owner, which was accepted by him conditional upon the performance of the contract, it was held that whatever the contractor became entitled to thereafter must be applied in pay- ment of the order. 62 Sub-contractors on railroads, as well as other sub-contractors, must give notice of their claims within thirty days from the completion of their work, if they expect to preserve their lien. 63 A sub-con- tractor of a sub-contractor may have a lien. 64 1142. Of payments made by the owner to the con- tractor within the thirty days, etc. When the prin- cipal contractor recognizes the fact that there are to be sub-contractors whom the owner may be required to pay, and he knows that certain persons, as sub-contrac- tors, have furnished material, he will be liable to them if their claims are filed and notice served within the thirty days. 65 But it has been held that the owner, who in good faith pays the contractor within thirty days in accordance with the agreement between them, and with- out knowledge of the claim of a sub-contractor, will be protected. But if he have any knowledge of such claim, and pay within the thirty days, the sub-contractor's lien will be preserved. 66 This doctrine has been carried to the extent of holding that if the owner pay the contractor during the thirty days and in accordance with the terms of the contract, and without notice of any claims by sub-contractors, he will not be protected in such payment if he could prob- ably, by the exercise of reasonable diligence, have dis- covered that the sub-contractor was entitled to a lien; 61 Merritt v. Hopkins, 65 N. W., * Mears v. Stubbs, 45-675. 1015. 65 Winter v. Hudson, 54-336. 62 Cutler v. McCormick, 48-406. 66 Andrews v. Burdick, 62-714; 68 Sandval v. Ford, 55-461; Nash Fullerton v. Osborn, 72-472. v. C., M. & St. P. R. Co., 62-49. 1142.] MECHANICS' LIENS AND CLAIMS. 367 and in the same case it was held, that if the owner knew the contractor had to purchase his material, and if by inquiry he might have ascertained from whom it was bought, and he did not do so, and it was not paid for, he is not protected. 67 If the owner has knowledge of facts sufficient to put him upon inquiry, he should withhold payment during the thirty days. 68 But it seems that an owner who has not in his contract with his contractor, reserved the right to control funds in the interest of sub- contractors may pay his contractors in strict accord- ance with the terms of the contract, regardless of his knowledge as to any claim of any sub-contractor. 69 If, by the terms of the contract, the principal contractor is entitled to compensation in full before the work is com- pleted, and is paid before that time, and without any notice of claims for liens, no liens can be enforced against the owner or the property. 70 Where the owner, within the thirty days, paid certain sub-contractors who had not filed claims, the balance due under the contract, which was more than enough to pay plaintiff's claim, with knowledge that plaintiffs were also sub-contrac- tors, and plaintiffs filed their claims as provided by law, it was held that such owner was not justified in mak- ing such payments, but should have retained the same to pay liens in the order of their priority. 71 And it was also held that a statement filed, which showed the date the contract was made and the date the last work was done, was sufficient as against the owner of the property. Sub-contractors must take notice of the terms of the principal's contract, and, the owner is protected in making payments to the principal contrac- tor, in accordance with the terms of such contract, un- less notified of the claims of sub-contractors before such 67 Gilchrist v. Anderson, 59-274; e Epeneter v. Montgomery Fay v. Orison, 60-136; Martin v. County, 67 N. W., 93. Morgan, 64-270. TO Roland v. C., M. & A. R. Co., s Jones, etc., v. Murphy, 64-165; 61-380. Chicago Lumber Co. v. Woodside, TI Othmer v. Clifton, 69-656. 71-359. 368 MECHANICS' LIENS AND CLAIMS. [ 1143. payments are made. 72 Where a building contract pro- vided that sub-contractors should be paid by orders given by the principal contractor, and the owner had knowledge of the furnishing materials by certain sub- contractors, he was liable therefor, although he had made full payment to the principal contractor before no- tice of claim for lien had been filed and served, it having been filed and served within the thirty days. 73 Where the contractor gave bond for the execution of his con- tract, and the owner paid him in full before the expira- tion of the time allowed for filing liens by sub-contrac- tors, and he was afterward compelled to pay additional sums to satisfy such liens, he was not permitted to re- cover such additional sums from the sureties on the con- tractor's bond, he being negligent in paying the con- tractor prior to the expiration of the time for filing liens by sub-contractors. 74 1143. Extent of lien of sub-contractor when claim filed after thirty days. A sub-contractor may, at any time after the expiration of the thirty days, file his claim for a mechanic's lien with the clerk of the dis- trict court, in the manner before stated, and give written notice thereof to the owner, his agent or trustee, and from and after the service of such notice his lien will have the same force and effect, and may be prosecuted or vacated by bond, as if filed within the thirty days, but will be enforced against the property or upon the bond, if given by the owner, only to the extent of the balance due from the owner to the contractor at the time of the service of such notice upon the owner, his agent or trus- tee. But if, in such case, the bond is given by the contrac- tor, or person contracting with the sub-contractor, who files the claim for a lien, such bond will be enforced to 72 Stewart v. Wright, 52-335; 73 Winter v. Hudson, 54-336. Blanding v. Davenport, I. & D. R. 74 Lucas County v. Roberts, 49- Co., 88-225; Epeneter v. Montgom- 159. ery Co., 67 N. W., 93. 1143.] MECHANICS' LIENS AND CLAIMS. 369 the full extent of the amount found due the sub-con- tractor. 75 Where, by agreement between the owner and con- tractor, a claim which the former held against the latter was to be allowed as a payment on the last installment to be paid under the contract, and the sub-contractor's claim for a lien was filed more than thirty days after the last item in his account, it was held he could only Re- cover what remained due from the owner to the con- tractor after deducting said claim. 76 76 Code, Sec. 3094. * Ewing v. Folsom, 67-65. Vol. n-24 CHAPTER LXX. OF REAL ESTATE MORTGAGES. Sec. 1144. How and where foreclosed. 1145. Of parties. 1146. Of election, when separate actions are brought upon note and mortgage. 1147. Of the petition. 1148. Of the judgment 1149. Of attorney's fees. 1150. Of the execution. 1151. Of assignment to junior incumbrancers. 1152. Of the surplus arising from the sale. 1153. Of other liens. 1154. Of the sale, and of satisfaction of the mortgage. 1155. Oi the duty of the clerk. 1156. Of foreclosure of title bonds. 1157. Of the cancellation of real estate contracts. 1158. Of pleadings, practice, etc. 1159. Of redemption. 1160. Of priority of liens, intervening equities, indexing, etc. 1161. Of release and merger. Section 1144. How and where foreclosed, An ac- tion on a note, together with the mortgage or deed of trust for the foreclosure of the same, must be by equi- table proceedings in the district court, and in the county in which the property to be affected, or some part there- of, is situated. 1 Under the law providing for the fore- closure of mortgages and deeds of trust, by ordinary pro- ceedings, it was held that in equity the conveyance of land to a trustee for the payment of a debt with power to sell in case of default, should be treated as a mort- iCode, Sees. 3428, 3493, 4284, 181; Iowa L. & T. Co. v. Day, 63- 4287; Kramer v. Rebman, 9-114; 459; Equitable Life Ins. Co. v. Scott v. Simeral, 9-388; Lomax v. Gleason, 56-47; Cole v. Connor, 10- Smith, 50-223; McDowell v. Loyd, 299; Code, Sec. 3496. 22-448; Chadbourne v. Oilman, 29- 370 1145.] KEAL ESTATE MOBTGAGES. 311 gage. 2 And generally it is held that a deed absolute in form will be treated as a mortgage, when it is shown that it was executed for the purpose of securing the pay- ment of a debt existing at the time of its execution. 3 If it is doubtful whether the instrument is a mortgage or a conditional sale, a court of equity will treat it as a mort- gage. 4 And equity will regard any conveyance of land intended to operate as security for a debt, or the per- formance of a contract, as a mortgage. 5 1145. Of parties. The owner of the mortgage or deed of trust sought to be foreclosed must be made plain- tiff, but when a mortgage is given to secure the payment of several promissory notes falling due at different times, which notes afterwards become the property of different persons, the several holders of such notes can not unite as plaintiffs in a suit to foreclose the mortgage; for the purposes of suit they stand as independent mortgagees. 6 It is not necessary to make prior mortgagees parties defendant, as, their interest being paramount, they could not be affected by the decree. 7 Nor need subsequent mortgagees be made parties defendant. 8 But they and the purchaser of the mortgaged premises are proper parties defendant. 9 And they should always be made s Newman v. Samuels, 17-528. 5 Green v. Turner, 38-112; Clin- s Hall v. Savill, 3 G. Gr., 37; ton Nat'l Bk. v. Manwarring, 39- Boomer v. Stone, 38-685; Usher v. 281; N. Y. Piano Co. v. Mueller, 42- Livermore, 2-117; Vennum v. Bab- 467; White v. Lucas, 46-319; Bar- cock, 13-194; Key v. McCleary, 25- nett v. Nelson, 46-495; Hensley v. 191; Gardner v. Weston, 18-533; Whiffin, 58-426; Richardson v. Bar- Holliday v. Arthur, 25-19; Maple v. rick, 16-407; Holliday v. Arthur, Nelson, 31-322; Rosierz v. Van 25-19; Crawford v. Taylor, 42-260; Dam, 16-175; Chase v. Abbott, 20- Brush v. Peterson, 54-243; Radford 154; Clinton Nat'l Bk. v. Man war- v. Folsom, 58-473; see Huston v. ring, 39-281; Montgomery v. Chad- Seeley, 27-83. wick, 7-114; Trucks v. Lindsey, 18- e Ranken v. Major, 9-297; see 504; Green v. Turner, 38-112; Allen Kemerer v. Bournes, 53-172. v. Kemp, 29-452; N. Y. Piano Co. i Heimstreet v. Winnie, 10-430; v. Mueller, 38-552; Allen v. Fogg, Standish v. Dow, 21-363. 66-229. s street v. Beal, 16-68; Donnelly * Trucks v. Lindsey, 18-504; v. Rusch, 15-99. Scott v. Merwhirter, 49-487; Bar- Semple v. Lee, 13-304; Porter v. thell v. Syverson, 54-160; Hughes Kilgore, 32-379; Dyer v. Harris, 22- v. Sheaff, 19-335; Wilson v. Pat- 268; Douglass v. Bishop, 27-214; rick, 34-362; Bridges v. Linder, 60- but see Sutherland v. Tyner, 72- 190. 232. 312 UEAL ESTATE ilORTGAGEs. | parties, as otherwise they will not be affected by the decree, nor will their interest in the premises be divest- ed. 10 In an action to foreclose a mortgage all persons should be made defendants who have any interest in, or lien upon the mortgaged premises, which is, or is claimed to be, junior and inferior to the lien of the plain- tiff's mortgage. 11 If a junior incumbrancer is not made a party defendant, the court, on his application show- ing that he has an interest in the equity of redemp- tion, will permit him to come in as a party. 12 When a married woman joins with her husband in executing a mortgage, she must be made a defendant to bar her right of dower, and so she should be made a party defendant in an action to foreclose a mortgage on the homestead. 13 But it is not necessary to make parties, those who would not be affected by the judgment or decree, nor should those acting only as agents be made parties unless they are charged with fraud. 14 A mortgagor who has con- veyed his interest in the mortgaged premises is not a necessary party in a suit to foreclose. 15 But if he has conveyed with a covenant against incumbrances, he may become a defendant on his own application. 16 When money of one is loaned by another in his own name, the mortgagor and the administrator of the party furnishing the money may be joined in a petition seeking discovery from the administrator and the foreclosure of the mortgage. 17 And an administrator of the mortgagor is a proper party defendant in an action to foreclose, but loHeimstreet v. Winnie, 10-430; Donnelly v. Rusch, 15-99; Johnson Donnelly v. Rusch, 15-99; Davis v. v. Harmon, 19-56. Rogers, 28-413; Porter v. Kilgore, Chase v. Abbott, 20-154; Bur- 32-379; Douglass v. Bishop, 27-214; nap v. Cook, 16-149; see Carson v. Chase v. Abbott, 20-154; Anson v. Underwood, 12-52. Anson, 20-55; Gower v. Winches- i* Lyon v. Tevis, 8-79; Deland v. ter, 33-303; but see Sutherland v. Mershon, 7-70 Tyner, 72-232. is Murray v. Catlett, 4 G. Gr., 11 Bleidorn v. Abel, 6-5; Bunce v. 108; Johnson v. Monell, 13-300; West, 62-80; Brobst v. Thompson, Semple v. Lee, 13-304; Johnson v. 4 G. Gr., 135; Suiter v. Turner, Foster, 68-140; Watts v. Creighton, 10-517; Hogdon v. Heidman, 66- 85-154. 645. is Gifford v. Workman, 15-34; 12 Parrott v. Hughes, 10-459; Code, Sec. 3462. " Collier v. Collins, 9-126 . 1146. J SEAL ESTATE AlOETGAGES. 373 judgment should not be rendered against him per- sonally. 18 In an action brought by the beneficiary in a deed of trust or mortgage, to a trustee, to secure a debt due the plaintiff, to foreclose the same, the trustee is a necessary party. 19 Persons who should have joined as plaintiffs but have refused to do so, may be made de- fendants, the reasons therefor being stated in the pe- tition. 20 1146. Of election When separate actions are brought on note and mortgage. If separate actions are brought in the same county on the bond or note, and on the mortgage given to secure it, plaintiff must elect which he will prosecute, and the other will be dis- continued at his costs. 21 A mortgage conditioned that the maker of the note described therein shall pay the same when it becomes due, "with interest at the rate of ten per cent, per annum from date, payable annually, ac- cording to the tenor and effect of said note" may be fore- closed for interest due before maturity of the note. 22 And a mortgagee may foreclose his mortgage after re- covering judgment on the notes. 23 Nor is he confined to the remedy of foreclosure but may sue at law on the note, bond or other obligation secured by the mortgage, 24 or if the covenant for payment is contained in the mort- gage itself, that may be made the basis of the law ac- tion. 25 Under a prior statute it was held that the mort- gagee might, when there were subsequent incumbranc- ers, proceed in equity to settle the question of their liens, after taking judgment at law on the note against the mortgagor, and before proceeding to a sale of the prop- erty, and in such proceeding it was held proper to make the mortgagor a party. 26 is Darlington v. Effey, 13-177; v. Oascaden, 43-103; Newbury v. Hodgdon v. Heidman, 66-645. Rutter, 38-179. i Tucker v. Silver, 9-261. 25 Morrison v. Morrison, 38-73; 20 Code, Sec. 3463. Hendershott v. Ping, 24-134; Shear- 21 Code, Sec. 4288. er v. Mills, 35-499; Mathews v. 22 Bahr v. Arndt, 9-39. Davis, 61-225; see Wahl v. Philips, 23 Wahl v. Philips, 12-81. 12-81. 24 Ban tav. Woods, 32-469; Brown 20 Wahl v. Philips, 12-81; Morri- son v. Morrison, 38-73. 374 HEAL ESTATE MORTGAGES. [ 1147. 1147. Of the petition. The petition in a fore- closure suit may be in the following form: FORM OF PETITION IN FORECLOSURE. Title, ) Venue. j The plaintiff states: Par. 1. That on or about the day of , 18, the defend- ant (naming him) made his one certain promissory note in writing to (here insert name of party to whom the note was given) in words and figures following to wit: (here set out copy of note.) Par. 2. That to secure the payment of said note the said defendants (naming them) made and delivered to the said (naming payee) the cer- tain mortgage deed of said (name of grantors) upon the following de- scribed real estate to wit: (here describe real estate as in the mortgage) a copy of which mortgage is hereto annexed marked exhibit "A" and made a part of this petition. Par. 3. That said mortgage was duly filed for record in the office of the recorder of deeds of county, Iowa, on the day of , 18 , at o'clock m., and duly recorded in book , page Par. 4. That said note is still plaintiff's property, is due and wholly unpaid. Par. 5. That the defendants (naming defendants who have or claim a lien on the land) have or claim to have some lien upon, or in- terest in said premises, but the plaintiff alleges that whatever lien or interest the said defendants, or either of them, may have in the said premises, the same is junior and inferior to the lien of plaintiff's said mortgage. Par. 6. That since the execution of said mortgage and on the day of , 18 , plaintiff has paid taxes on said premises, duly levied, amounting to the sum of dollars. Par. 7. That plaintiff has been to the expense or dollars for an abstract of title to said mortgaged premises preparatory to the fore- closure of said mortgage. Par. 8. Wherefore plaintiff demands judgment against the said (here insert maker's name) for the amount due upon said promissory note, to wit: The sum of dollars with per cent, interest thereon from its date (or as the case may be) and for the sum of dollars paid to discharge th~e taxes on the mortgaged premises, with per cent, interest thereon from the time the same were paid, and for - - dollars paid for abstract of title to said premises and for costs including an attorney's fee of dollars; and plaintiff prays that said judgment may be decreed to be a lien upon said mortgaged premises from the date of said mortgage, to wit: the day of , 18 ; and that the lien of the said defendants, and each of them, upon the said mortgaged premises, may be decreed to be junior and inferior to the plaintiff's mortgage; that the equity of redemption of the said 1147.] KEAL ESTATE MORTGAGES. 375 defendants, and each of them, be forever barred and foreclosed, and that a special execution issue for the sale of said mortgaged premises, or so much thereof as shall be necessary to satisfy said judgment with interest and costs.* And that the court adjudge and decree that if any part of said mort- gaged premises be sold under this decree and not redeemed within one year from the date of sale, that a writ of possession issue under the seal of this court directed to the sheriff of said county, commanding him to put the purchaser under this foreclosure in possession thereof. , attorney for plaintiff. (Add verification.) In case some of the notes are not yet due, judgment may be had on those due and a sale ordered to pay all of them by making such a rebate on those not due as the court or judge may fix; and this rebate generally con- sists in stopping the interest on the notes not due at the time judgment is entered. 27 And in such case the fol- lowing should be inserted in the prayer at the point in- dicated by the star: FORM OF ADDITION TO PRAYER WHEN SOME OF THE NOTES SUED ON ARE NOT DUE. "And that the court may order and decree that if it becomes neces- sary to sell any part of said mortgaged premises to satisfy said judg- ment, that a sufficient amount thereof be sold to satisfy not only said judgment but the notes described in said mortgage which are not yet due." If it is a title bond which is to be foreclosed, the peti- tion may be in the following form: FORM OF PETITION FOR FORECLOSURE OF A TITLE BOND. ,\ Title, Venue The plaintiff states: Par. 1. That on the day of , 18 , he was the owner in / fee of the following described real estate (here describe it as in the bond) situated in county, Iowa. Par. 2. That on the - day of , 18, he sold said real -j. estate to the defendant (naming him) at and for the sum of dol- 27Carleton v. Byington, 24-172; 4293; Nat'l Bk. v. Dean, 86-656. Stafford v. Maus, 38-133; Code, Sec. 3?6 BEAL ESTATE MORTGAGES. [ 1148. lars, and that said defendant executed to this plaintiff his one certain promissory note therefor, in words and figures following, to wit: (here set out the note.) Par. 3. That at the time of the execution of said note, this plaintiff executed and delivered to the said defendant his certain title bond to said premises, a copy of which is attached hereto marked exhibit "A" and made a part hereof. Par. 4. That said bond was duly filed for record in the oflice of the recorder of deeds of county, Iowa, on the day of , 18 , and duly recorded in book , page . Par. 5. That said note is plaintiff's property and is due and unpaid. Par. 6. That the defendants (naming them) have or claim to have some lien upon, or interest in, said premises, but the plaintiff alleges that whatever lien or interest the said defendants, or either of them, may have in said premises, the same is junior and inferior to the lien of plaintiff thereon. Par. 7. That since the execution of said bond and on the day of , 18 , plaintiff paid the taxes on the said premises duly levied, amounting to the sum of dollars. Par. - 8. (Here insert paragraph regarding abstract fees if bond provides therefor, as in previous petition.) Par. 9. (Here insert paragraph relating to attorney's fee, if bond provides therefor, as in previous petition.) Par. 10. Wherefore plaintiff demands judgment against the said (here insert the name of maker of the note) for the amount due upon the said promissory note, to wit: dollars with per cent. interest thereon from the day of , 18 , and for the sum of dollars paid to discharge the taxes on the premises above de- scribed, with per cent, interest thereon from the time the same were paid, and for said abstract of title in the sum of dollars and for costs, including dollars attorney's fee, and asks that the de- fendant (the purchaser) be required to perform his contract (or that his interest in the property heretofore described be foreclosed and sold). That the lien of the said defendants, and each of them, upon the above described premises, may be decreed to be junior and inferior to plain- tiff's lien thereon, and that the equity of redemption of said defendants, and each of them, be forever barred and foreclosed; that a special exe- cution issue, etc. (Conclude as in form of foreclosure of mortgage above given, making such change as is necessary.) 1148. Of the judgment. On the foreclosure of a mortgage or deed of trust, the court must render judg- ment for the entire amount found to be due that is, when the relation of debtor and creditor exists out- side of the mortgaged property and must direct that the mortgaged property, or so much thereof as is neces- sary, be sold to satisfy the same, with interest and 1148.] EEAL ESTATE MOKTGAGES. 377 costs. 28 Where a mortgage provided for semi-annual payment of interest, and stipulated that a failure to pay it within thirty days after the time fixed should render the entire principal due, it was held that on such failure to pay the mortgagee had a right to declare the whole debt due, and foreclose his mortgage therefor. 29 No personal judgment can be rendered against the wife of a mort- gagor in a foreclosure proceeding where it is not al- leged in the petition that the debt secured by the mort- gage is one for which her separate property is liable, 30 unless it appears that she is a party to the note. As be- tween the parties to a mortgage, a judgment at law on the note it secures, is a lien from the date of recording the mortgage; but a judgment on a note secured by mortgage does not attach as a lien upon the mortgaged premises from the date of the mortgage unless the prop- erty is described in the judgment, and it is there ordered that it shall be a lien from the date of recording the mortgage. 31 The decree of foreclosure should direct a sale of so much of the mortgaged premises as may be necessary to satisfy the mortgaged debt and costs, and it is error to order a sale of the entire premises, and the payment of the balance remaining after satisfying the debt and costs, into court. 32 A personal judgment can not be rendered against a subsequent purchaser of the mortgaged property who is not a party to the note or mortgage. 33 But where the purchaser of mortgaged premises assumes and agrees to pay the mortgaged debt as a part of the consideration of the purchase, the mort- gage may be foreclosed and a personal judgment ren- dered against him; and parol evidence is admissible to as Code, Sec. 4289; Wood v. so McLaughlin v. O'Rouke, 12- Sands, 4 G. Gr., 214; Reunion v. 459; Knox v. Moser, 69-341. Kelsey, 10-443; Anderson v. Reed, si Banta v. Wood, 32-469; State 11-177; Carleton v. Byington, 24- v. Lake, 17-215; Christy v. Dyer, 172; Weil v. Churchman, 52-253; 14-443. Reed v. King, 23-500; Knox v. 32 Malony v. Fortune, 14-417; Moser, 69-341; Johnson v. Foster, Trieber v. Shafer, 18-29; see W. S. 68-140; Crowley v. Harader, 69- M. Co. v. Rutledge, 60-39; Pike v. 83; York v. Boardman, 40-57; Bris- Gleason, 60-150; Code, Sec. 4294. tol Sav. Bk. v. Stiger, 86-344. 83 Carleton v. Byington, 24-172. 2 Kramer v. Rebman, 9-114. 378 REAL ESTATE MORTGAGES. [ 1148. prove such an agreement. 34 Where the purchase is sub- ject to a mortgage, and the amount thereof has been re- tained by the purchaser out of the purchase money he will be held to have assumed the payment of the mort- gage, not so, however, where there is an exchange of properties unless there are words in the contract or deed indicating the assumption of a personal liability. 35 If a mortgagor sells only a portion of the real estate cov- ered by a mortgage and retains the ownership of the bal- ance, the portion he retains should be sold first under the foreclosure and the portion in the hands of his grantee should be sold to satisfy any balance remaining after the sale of the property retained by the mortgagor. 36 A sale of property under a judgment or foreclosure for one installment of the debt, discharges the property sold after redemption, from the lien of the mortgage for other installments. 37 When a mortgagor has disposed of all his interest in the property he is not a necessary party to a foreclosure suit, but in such a case, as against the owner of the property, the amount of the debt should be ascertained by the court and a special execution or- dered for the sale of the property. 38 Where a mort- gagee pays taxes and other prior claims to protect his own lien, he should only be allowed six per cent, interest on such advances as against a junior incumbrancer in a foreclosure proceeding, though he may have an agree- ment for ten per cent, with the mortgagor. 39 The form of judgment and decree of foreclosure given below will be found to contain sufficient in most cases: 34 Bowen v. Kurtz, 37-239 ; Grei- as Bristol Sav. Bk. v. Stige'r, 86- ther v. Alexander, 15-470; Aufricht 344. v. Northrup, 20-61; Myers v. Bow- se Mickley v. Tomlinson, 79-383. ers, 70-951; Wood v. Smith, 51- 37 Esher v. Simmons, 54-269; 156; Ream v. Jack, 44-325; Thomp- Todd v. Davey, 60-532; Micklewait son v. Bertram, 14-476; Ross v. v. Raines, 58-605; Poweshiek Kennison, 38-396; Lamb v. Tuck- County v. Dennison, 36-244; Harm* er, 42-118; Edwards v. Thostenson, v. Palmer, 61-483. 64-680; Hull v. Alexander, 26-569; as Johnson v. Foster, 68-140, and Iowa L. & T. Co. v. Mowery, 67- cases cited. 113. 39 Butterfield v. Hungerford, 68- 249. 1148.] REAL ESTATE MORTGAGES. 379 FORM OF JUDGMENT AND DECREE OF FORECLOSURE. Title, Venue. Be it remembered, that on this day of , 18 , it being afternoon of the day of the said term of the district court aforesaid, the above entitled cause came on in its order for hearing (name of plaintiff's attorney), appearing as counsel for plaintiffs (here insert names of plaintiffs), and (name of attorney for defendants), ap- pearing as counsel for defendants (here insert names of defendants), and the court having inspected the original notices and the services thereon, expressly finds that all the foregoing defendants (insert names of defendants served), have been duly and legally served with a suf- ficient original notice according to law, and in time for this term of court; that the subject-matter of the suit and the person of the defend- ants are now lawfully in the jurisdiction of this court; therefore, by order of the court, the said defendants (insert names of defendants served), not appearing (if any of the defendants appear state the facts with reference thereto, and that they filed answers, or as the case may be), and on motion of plaintiffs' counsel all of said defendants (or as the case may be) are adjudged of record to be in default. It is therefore ordered that this cause proceed to final determination, and after inspec- tion of the pleadings, the evidence and proofs of the plaintiff (or plain- tiff and defendant, as the case may be), and after argument of counsel, the court being duly advised in the premises, it is ordered, adjudged and decreed, that the issues are found for the plaintiff; that the allega- tions of the petition are true; that the mortgage and notes declared on are genuine, just, due and unpaid; that plaintiff is entitled under the stipulations of said mortgage to dollars for necessary abstracts of title, and to dollars taxes paid out on the premises since the giving of the said mortgage, and to damages upon the notes declared upon in the sum of dollars; therefore, a personal judgment is now rendered against the said defendant (naming him), for the aggre- gate sum of dollars, the same to draw per cent, interest per annum from this date, and tho costs of this action taxed at dol- lars, including dollars attorney's fees for foreclosing this mort- gage, said sums being hereby declared a lien on the mortgaged premises, to wit: (here describe premises as in the petition), from the date of the mortgage to wit (here insert date of mortgage), until fully paid. Said mortgage being recorded in book , page , in mortgage rec- ords of county, Iowa. And it is further ordered, adjudged, and decreed, that a special execution issue against the mortgaged premises to make said total sum and costs, and accruing costs (so far as the same is practicable), and that said property, or so much thereof as is necessary, be sold to satisfy the amount due, with interest and costs, thereunder, according to law, and that, at the election of plaintiff, the clerk of this court is authorized to insert in said special execution a clause requiring the sheriff to seize any property of the defendant, not exempt from execution, to satisfy any prospective balance on said judg- 380 EEAL ESTATE MORTGAGES. [ 11-19. ment after exhausting the mortgaged premises, or that after the return of said special execution, a general execution, if the plaintiffs so elect, shall issue to make any amount then remaining unpaid. And on and after the day of the sale the defendants, and each and all of them, and all persons claiming by, through or under them, are forever barred and foreclosed of all interests and equity in and to said mortgaged prem- ises, except such rights of redemption as are especially provided by law, and that if said real estate be sold and not redeemed, as provided by law, a writ of possession issue to the sheriff of this county, com- manding him to put the purchaser at said sale in possession of said premises. (If any of the parties are not served, conclude thus: "and as to the defendant , this cause is continued for service.") 1149. Of attorney's fees. A stipulation in a note or mortgage for the payment of an attorney's fee in case of collection by suit, is not usurious, and a reasonable fee may be recovered in the action without averring what amount is reasonable, 40 and formerly the attorney's fee might be included in the judgment. 41 Where it is stipu- lated that "in the event of foreclosure" a certain sum shall be taxed as attorney's fee, it was held that plaintiff could not recover attorney's fees if defendant, before de- cree of foreclosure was entered, paid or tendered to plain- tiff the amount of the mortgage and costs accrued. 42 Attorney's fees are only recoverable by virtue of a writ- ten contract agreeing to pay, and when judgment is re- covered on a written contract, made since July 4, 1880, containing an agreement to pay an attorney's fee, if the court is satisfied by the affidavit of the attorney engaged in the cause, which must be filed with the original papers at the commencement of the action, that there has been, and is no agreement, express or implied, between the attorney and his client or between the attorney and any other person, except a practicing attorney engaged with him as attorney in the case, for any division or sharing of the fee to be taxed, and that the defendant, Nelson v. Everett, 29-184; v. Harder, 45-677; Floyd County v. Weatherlyv. Smith, 30-131; McGill Morrison, 40-188; Bondurant v. v. Giffin, 32-445; Williams v. Meek- Taylor, 3 G. Gr., 561. er, 29-292; Sawyer v. Perry, 62- *i Shugart v. Pattee, 37-422. 238; Hawley v. Howell, 60-79; Schmidt v. Potter, 35-426. Schmidt v. Potter, 35-426; Johnson 1149.] EEAL ESTATE MORTGAGES. 381 if a resident of the county, and the suit is not aided by attachment, had information of and a reasonable op- portunity to pay the debt before the action wafe brought, unless it was payable at a particular place and the maker had not tendered the money due at such place, there will be an attorney's fee allowed by the court and taxed as a part of the costs, in an amount not greater than ten per cent, for the first two hundred dollars or fraction thereof, of the amount found due; for the excess of two hundred dollars up to five hundred dollars, five per cent. ; for the excess of five hundred dollars up to one thousand dollars, three per cent.; and for all in excess of one thou- sand dollars, one per cent. But not to exceed one half of the above fees can be re- covered in case payment is made after the commence- ment of the action and before return day, and in case of payment before judgment and after the return day, plain- tiff can not recover to exceed three fourths of the said amounts, and no fee will be allowed if the suit has not been commenced nor any expense incurred, nor if the affi- davit herein provided for is not filed with the original papers. 43 If the contract was executed prior to July 4, 1880, and it provides for attorney's fees, such sum may be allowed, as the court, from the evidence offered, may deem reasonable. But in case of default, attorney's fees can not be allowed and taxed, unless evidence is intro- duced of the value of such services. 44 A defendant in a foreclosure suit who does not seek to redeem, but who claims the land by a superior title, is not in a position to object to the amount of the attorney's fee allowed by the court. 45 The affidavit above mentioned may be in the following form: 43 Code, Sees. 3869 to 3871; Spies- Kelley, 88-475; Black v. De Camp, berger v. Thomas, 59-606; Wilkins 78-718. v. Troutner, 66-557; Sweney v. ** First Nat'l Bk. v. Krance, 50- Davidson, 68-386; Shenandoah 235. Nat'l Bk. v. Marsh, 89-273; Otcheck Winnebago County v. Brones, v. Hostetter, 77-509; Fletcher v. 68-682; but see Cook v. Gilchrist, 82-277. 382 EEAL ESTATE JIOKTGAGES. [ 1150. FORM OF AFFIDAVIT FOR TAXATION OF ATTORNEY'S FEES. Title, ) Venue, f , State of Iowa, County I ss. I, , being duly sworn, on oath depose and say that I am the attorney engaged in the above entitled cause for the plaintiff; that there has been and is no agreement, express or implied, between this affiant and his client, or between this affiant and any other person, except (name of attorney associated with him, if any), who is a prac- ticing attorney engaged with this affiant as attorney in this cause, for any division or sharing of the fee to be taxed herein; that this affiant is a regular attorney, and the fee to be taxed herein is in compensation for services actually rendered in this cause. That this action is not aided by attachment, that the defendant (naming the one against whom personal judgment is sought) has for more than days prior to the commencement of this action Ead actual notice that said note and mortgage was in my possession for collection at (naming the place) and has during said time repeatedly been urged by me to pay the same. (Add certificate of officer.) 1150. Of the execution, A special execution is- sues for the sale of the mortgaged property, or sufficient to satisfy the debt with interest and costs, and this sale is subject to redemption, as in case of sales made under a general execution. 46 If the mortgaged property does not sell for sufficient to satisfy the execution, a general execution may issue against the mortgagor, unless the parties have stipulated otherwise. 47 But where a mort- gage is made by one person to secure the debt of another, the mortgagor not signing a note or bond and becoming liable in no way, except as provided in the mortgage, 110 general execution can issue against him. 48 A stipula- tion in the mortgage, that a general execution shall not issue, is a bar to a general judgment on the note, 49 and where an indorsement was made on the note, to the effect that it "is confined to" the mortgage securing it, Code, Sec. 4289; see chapter on 253; see Newbury v. Rutter, 38-179. Redemption. * Chittenden v. Gossage, 18-157; 47 Code, Sec. 4290; Chittenden v. McLaughlin v. O'Rouke, 12-459; Gossage, 18-157; Anderson v. Reed, but see Newbury v. Rutter, 38-179. 11-177; Weil v. Churchman, 52- 49 Kenyon v. Kelsey, 10-443. 1150.] KEAL ESTATE MORTGAGES. 383 the payee was confined to his remedy of foreclosure, and was not entitled to a personal judgment. 50 A decree foreclosing a title bond as a mortgage, may provide for the issuance of a general execution, for any balance due after sale 9f the property on special execution. 51 If a wife joins her husband in executing a deed of trust upon land purchased by her, to secure notes made by the husband alone, for the purchase money, no personal decree can be rendered against her. 52 A decree of fore- closure of a title bond may require that the vendor exe- cute a deed with all the covenants stipulated in the bond, provided the full amount of the note or judgment is re- alized or paid by the purchaser. 53 The following form of special execution may be used: FORM OF SPECIAL EXECUTION. The State of Iowa. To the sheriff of county, greeting: Whereas (insert name of plaintiff), filed a petition in the court of county, for the foreclosure of a certain mortgage upon the real estate hereinafter described, making (here insert names of de- fendants) defendants therein, and whereas the district court at the term thereof A. D. 18, viz. : On the day of , 18, in said suit rendered judgment in favor of said plaintiff, and against (here insert name of defendant against whom judgment was rendered), for the sum of dollars damages, dollars costs, including attorney's fees, with interest on said damages, at the rate of per cent, per annum from the date of said judgment, and rendered a decree in said suit, forever barring and foreclosing the equity of redemption of said defendants in and to said mortgaged premises, and ordering that the same, or so much thereof as shall be necessary, be sold to satisfy said judgment, with the interest and costs aforesaid, and' ordered a spe- cial execution to issue. Therefore, you are commanded that of the fol- lowing described real estate in county, Iowa, viz.: (here describe real estate) or so much thereof as may be necessary by levy and sale, pursuant to the statute in such case made and provided, you cause to be made the sum of dollars debt, and the sum of dollars costs, including attorney's fees, with interest as aforesaid, and all accruing costs, and of this writ make due return to the court within seventy days hereof. so Elmore v. Higgins, 20-250. 62 Anderson v. Reed, 11-177. ei Grimmel v. Warner, 21-11. 53 Wall v. Ambler, 11-274. 38-i KEAL ESTATE MORTGAGES. [ 1151, 1152. Witness, , clerk of the district court of county, and the seal of said court affixed at my office in , in said county, this day of , 18. [Seal.] , clerk, etc. 1151. Of assignment to junior incumbrancers. At any time prior to the sale a person having a lien on the property which is junior to the mortgage, is en- titled to an assignment of all the interest of the holder of the mortgage by paying him the amount secured with interest and costs together with the amount of any other liens of the same holder which are para- mount to his, and he may then proceed with the foreclosure or discontinue it at his option. 54 And in such case it is sufficient if the junior incum- brancer tender to the mortgagee the amount secured by his mortgage with interest and costs before the fore- closure sale, though the tender be not accepted until after the sale. 55 Under section 4292 of the code the junior mortgagee is only entitled to an assignment of the prior mortgage as to the same land covered by his own mortgage. 56 1152. Of the surplus arising from the sale. If there is any surplus remaining after satisfying the mort- gage and costs, and if there be no other lien upon the property, such surplus must be paid to the mortgagor. 57 While such surplus, when remaining in the hands of the sheriff or under the control of the court, belongs to sub- sequent lien-holders in the order of their priority, and should be so awarded by the court; yet when the execu- tion does not direct the disposition of such surplus, and the sheriff, acting in good faith and without knowledge of subsequent liens, applies the money upon other execu- tions in his hands, against the mortgagor, he is not liable therefor to such lien-holders. 58 And when a surplus was realized by the sheriff, from the sale of a homestead under s* Code, Sec. 4292; Grant v. Par- se Grant v. Parsons, 67-31. sons, 67-31; Harbach v. Colvin, 73- BT Code, Sec. 4291. 638; Sessions v. Kent, 75-601. ss p o lk County v. Sypher, 17-358. 55 Marshall v. Ruddick, 28-487. 1153, 1154.] EEAL ESTATE MORTGAGES. 385 special execution, and the defendant permitted the sher- iff, without objection, to apply it on other executions, and turn the same over to such execution creditors, the debtor was estopped from recovering such surplus from the sheriff. 59 So a sheriff may apply a surplus on other exe- cutions in his hands. 60 And he may be garnished by a creditor of the mortgagor. 61 1153. Of other liens. If there are any other liens on the property sold, or other payments secured by the same mortgage, they must be paid off in their order, and if the money secured by any such lien is not yet due, a suitable rebate of interest, to be fixed by the court, or judge thereof, must be made by the holder thereof, or his lien on the property will be postponed to those of a junior date, and if there are none, such balance must be paid to the mortgagor. 62 1154. Of the sale, and of satisfaction of the mortgage. As far as practicable, only sufficient prop- erty can be sold to satisfy the mortgage. 63 And a re- fusal of the sheriff to sell the property in parcels when it is practicable and when the value of the property ex- ceeds the debt, invalidates the sale. 64 When, under a mortgage made by joint tenants, a part of the property is sold on the execution, upon a plan of division preju- dicial to the rights of one of such owners, the validity of such sale is not affected thereby, and the judgment cred- itor can not complain if the judgment is satisfied by the sale. 65 But in such case the owner who has been wronged may maintain an action against his co-tenant for re-im- bursement. 66 Whenever the amount due on any mort- gp^e is paid, the mortgagee or those legally acting for him must acknowledge satisfaction thereof on the mar- gin of the record of the mortgage, or by the execution of so Brumbaugh v. Zollinger, 59- es Code, Sec. 4294; Grapengather 384. v. Fejervary, 9-163. so Payne v. Billinsham. 10-360. * Grapengather v. Fejervary, 9- 61 Hoffman v. Wetherell, 42-89. 163; Lay v. Gibbons, 14-377, and 62 Code, Sec. 4293; Nat'l Bk. v. cases cited. Dean, 86-656. 65 Miller v. Felkner, 42-458. 66 Same as No. 65. Vol. H-25 386 EEAL ESTATE MORTGAGES. [ 1154. an instrument in writing, .referring to the mortgage, which must be duly acknowledged and recorded, and if he fails to do so within thirty days after being requested in writing, he will forfeit to the mortgagor the sum of twenty-five dollars. 07 No particular form of words is necessary to release a mortgage; no conveyance is neces- sary to accomplish that purpose; satisfaction may be entered as provided by statute upon the margin of the record of the mortgage, but this method is not exclusive, and when a mortgage is so satisfied the person so satis- fying it must be identified and his signature must be wit- nessed by the recorder or his deputy. 68 It has been held that the penalty for failure to satisfy a mortgage after notice to that effect has been given, is incurred when the mortgagee fails to do so within the time provided by statute after such request; and an entry of satisfac- tion after that time, even though made before suit is brought for the penalty, will not prevent its recovery by * the mortgagor. 69 But the assignee of a mortgage by an assignment not recorded, is not subject to the statu- tory penalty imposed upon a mortgagee for a failure to enter satisfaction of his mortgage of record when paid. 70 In such a case the satisfaction mu^t be made by the original mortgagee. 71 The notice to a mortgagee to cancel his mortgage may be in the following form: FORM OF NOTICE TO MORTGAGEE TO CANCEL MORTGAGE. To (name of mortgagee): You are hereby notified that the mort- gage held by you, dated the day of , 18, and executed by (here insert names of mortgagors) to you on the following described real estate, viz.: (here insert description of premises) and which is re- corded in book on page of mortgage records of county, Iowa, has been fully paid off and you are required to acknowl- edge satisfaction thereof properly of record as provided by law, within thirty days from date hereof. Dated the day of , 18. , mortgagor. 67 Code Sec. 4295; Deeter v. e Deeter v. Crossley, 26-180. Crossley,' 26-180; Lowe v. Fox, 56- TO Lowe v. Fox, 56-221 221- Kennedy v. Moore, 91-39. " Kennedy v. Moore, 91-39. es Code, Sec. 4295; Waters v. Waters, 20-363. 1155, 1156.] REAL ESTATE MORTGAGES. 387 1155. Of theduty of the clerk. Whenever a judg- ment of foreclosure is entered in any court, the clerk thereof must make upon the margin of the record of the mortgage foreclosed, in the recorder's office, a minute showing that said mortgage has been foreclosed, and in what court, and giving the date of the decree, and when the judgment is fully paid off and satisfied upon the judg- ment docket of said court, the clerk must enter satis- faction in full upon the margin of such mortgage, for which he is allowed a fee of twenty-five cents to be taxed as costs in the case. 72 1156. Of foreclosure of title bonds. An out- standing title bond for the conveyance of lands may be foreclosed like a mortgage when any part of the pur- chase money remains unpaid after the day fixed for pay- ment, whether time is or is not of the essence of the con- tract, and in such cases the vendee will be treated as the mortgagor of the property, and his rights foreclosed ac- cordingly. The petition in such case should ask the court to require the purchaser to perform his contract or to foreclose and sell his interest in the property. 73 And in case of a foreclosure of a title bond no tender of con- veyance is required. 74 But the vendor under a title bond is not confined to his remedy by foreclosure. He may proceed at law for the purchase money or any unpaid and matured installment of it. 75 The remedy by foreclosure is one which did not heretofore exist, but it does not prohibit the vendor from declaring a forfeiture of the contract in compliance with its terms. 76 The assignee of a contract for the sale of real estate, by accepting the assignment thereof, be- comes a party to the contract and personally liable 72 Code, Sec. 4296. 74 Stevenson v. Polk, 71-278. 73 Code, Sees. 4297, 4298; Hart- 75 Hershey v. Hershey, 18-24; man v. Clarke, 11-510; Tupple v. Page v. Code, 6-153. Viers, 14-575; Hershey v. Hershey, 76 Mickelwait v. Leland, 54-662; 18-24; Pierson v. David, 1-23; Blair Iowa R. L. Co. v. Mickel, 41-402; v. Marsh, 8-144; Gamut v. Gregg, Johnson v. Thornton, 54-144. 37-573; Page v. Cole, 6-153; Rubel- man v. Rummel, 72-40. 288 REAL ESTATE MORTGAGES. [1157. thereon for the purchase money unpaid. 77 The vendee to an outstanding title bond can not, by abandoning the contract or offering to surrender it, divest himself of his interest and liability. 78 Where the vendor proceeds to foreclose and sell the property he loses his lien for any balance of the purchase money not paid by the foreclosure sale. 79 And it seems that the assignee of a vendor of real estate who acquires the note given for the purchase price, with an agree- ment that he shall have the benefit of the security, may, in case of non-payment, bring action in his own name against the vendee and all persons claiming under him with notice. 80 1157. Of the cancellation of real estate con- tracts. Any contract hereafter made for the sale of real estate in this State and which provided for the forfeiture of the vendee's rights therein on the happening of cer- tain conditions, will not be forfeited or canceled unless thirty days before a declaration of forfeiture is made a written notice be served on the vendee or assignee, notice of whose right as assignee has been conveyed to the ven- dor and on the party in possession of said real estate, which notice must be served in the same manner and by the same parties authorized to serve original notices, and contain a declaration of an intention to forfeit said con- tract and the reasons therefor. 81 For th? period of thirty days after the service of said notice, the vendee or those claiming under him, may discharge any unpaid payments and costs of service of notice of forfeiture, be taxed as a part of the costs. 85 Attorney's fees will not be taxed in such cases where there is a contest. 86 Where the issue tried was whether defendant owned a certain interest in the land in con- troversy, and the land was divided by the parties them- selves after a decree giving him that interest plaintiff's attorneys are not entitled to have their fees taxed as costs as authorized in an action for partition. 87 1206. Of appeals. An appeal may be taken from a decree settling the rights and interests of the parties; such a decree is in that respect final. 88 And a party who, by the decree, is adjudged to have no interest in the property, may appeal therefrom as a final judgment as to himself. 89 And where an appeal is taken by one of several defendants it will be dismissed unless the co- defendants are served with notice thereof. 90 1207. Of the record. In this action there should be a complete record made of the entire proceedings; the necessity of this is apparent, as by this proceeding the title of real property is determined. As to approval of conveyances and especially those made in vacation see "Judgments," sections 672, 673. *4 Code, Sec. 4261. ss Williams v. Wells, 62-740. *s Code, Sec. 4272. so Ramsey v. Abrams, 58-512. se Finch v. Garrett, 71 N. W., 429. o Hunt v. Hawley, 70-183; Code, ST Everett v. Croskrey, 69 N. W., Sec. 4111. 1125. CHAPTER LXXIV. OF PRESUMPTION OF REGULARITY OF PROCEEDINGS OF OFFI- CERS AND COURTS OF INFERIOR JURISDICTION. Sec. ^208. When proceedings of officers and courts presumed regular. Section 1208. When proceedings of officers and courts presumed regular. The future proceedings of all officers and of all courts of limited and inferior juris- diction within this State will, like those of general and superior jurisdiction, be presumed regular, except in re- gard to matters required to be entered of record and ex- cept when otherwise expressly declared by statute. 1 When an oath to a pleading is administered by a justice of the peace, it will be presumed he did it in the proper county; and when the record of a sale of real estate of property of a ward by his guardian discloses nothing to render it void, it will be presumed valid. 2 And when the jurisdiction of an inferior tribunal has once attached, every intendment will be made in favor of the validity of its proceedings. 3 And when a magistrate takes bail in a proceeding before him, it will be presumed he had authority so to do. 4 And when the jurisdiction of a justice is, by consent, extended to a sum greater than one hundred dollars, in the absence of a showing to the con- trary, it will be presumed such consent was given before iCode, Sec. 4648; Richmond v. 55-634; Barney v. Chittenden, 2 G. Board of Supervisors, 70-627; Purs- Greene, 165; Bayard v. Baker, 76- ley v. Hayes, 22-11; Miller v. Cor- 220; American Emigrant Co. v. bin, 46-150; State v. Lane, 26-223; Fuller, 83-599; see Judgments and Church v. Grossman, 49-444; Good- Appellate Proceedings, rich v. Brown, 30-291; Read v. 2 Pursley v. Hayes, 17-310. Howe, 39-553; Little v. Sinnett, 7- s Pursley v. Hayes, 17-310; Hag- 324; State v. Berry, 12-58; Shaw- gerty v. Brown, 22-219; see No. 1 han v. Loffer, 24-217; Smith v. above. Eagle, 44-265; Caughlin v. Blake, * State v. Hufford, 23-579. 436 1:208.] REGULARITY OF PROCEEDINGS, ETC. -137 the suit was commenced. 5 But an affidavit that a per- son to be served with notice can not be found in the State must appear of record to confer jurisdiction. 6 The su- preme court will presume that an inferior court, in mak- ing an order for service of notice in a matter within its jurisdiction, complied with the law. 7 But when it ap- pears on the face of the record that an officer or court has not jurisdiction, the presumption of the statute is rebutted. 8 6 Hodge v. Ruggles, 36-42. i Lees v. Wetmore, 58-170, and a Bradley v. Jameson, 46-68, and cases cited, cases cited. Brown v. Davis, 59-641. CHAPTER LXXV. OP PROCEEDINGS TO REVERSE, VACATE OR MODIFY JUDG- MENTS, OR THE PROCEEDINGS OF BOARDS, OR INDIVIDUALS ACTING JUDICIALLY. Sec. 1209. When judgments will be modified or vacated. 1210. Same In case of mistake, neglect or omission of the clerk, etc. 1211. Same For fraud, etc. 1212. Same For erroneous proceedings against a minor or person of unsound mind. etc. 1213. Same For the death of one of the parties before the judg- ment is rendered. 1214. Same For unavoidable casualty or misfortune, etc. 1215. Same For error in a judgment shown by a minor, etc. 1216. Of equitable proceedings. 1217. When the application may be by motion. 1218. When the application must be by petition. 1219. Same When grounds discovered after term. 1220. Of pleading, practice, etc. 1221. When the judgment will be vacated. 1222. Of injunction to suspend proceedings. 1223. Of judgment. Section 1209. When judgments will be modified or vacated. In addition to the grounds for granting new trials heretofore considered, 1 the district court in which a judgment has been rendered or a final order made, and where the judge of said court has made a final order, has power after the term at which said judgment or order was made, to vacate or modify it in the follow- ing cases: 1. For mistake, neglect, or omission of the clerk, OP irregularity in obtaining the same. 2 2. For fraud practiced in obtaining the same. 3 i See chapter on New Trials. s Code, Sec. 4091; Lumkin v. a Code, Sec. 4091; Larson v. Will- Snook, 63-515; Miller v. Albaugh, lams, 69 N. W., 441. 24-128; Jones v. Leech, 46-186; 438 1210, 1211.] TO REVERSE OR MODIFY JUDGMENTS. 439 3. For erroneous proceedings against a minor or per- son of unsound mind, when such errors or condition of mind do not appear in the record. 4 4. When one of the parties has died before the ren- dition of the judgment or the making of the order if no substitute has been made of the proper representative before the rendition of the judgment or order. 5 5. For unavoidable casualty or misfortune, prevent- ing the party from prosecuting or defending the action. 6 6. For error in judgment or order shown by an infant within twelve months after arriving at full age. 7 1210. Same In case of mistake, neglect or omission of the clerk, etc. When a default and judg- ment are irregular they may be set aside, or where there has been a mistake of the clerk. 8 1211. Same For fraud, etc. A judgment ob- tained by fraud practiced by the successful party may be vacated even though an application for a new trial has been previously made on other grounds, and in such an application to vacate other facts than those connected with the cause may be united, when they constitute a defense to the claim on which the judgment is based. 9 So a judgment obtained by fraud against a school dis- trict may be vacated on petition, in an action commenced within one year after judgment was rendered, and the Brownell v. Storm Lake Bk., 63- Roper, 62-603; Snell v. Iowa Home- 754; Dalhoff v. Keenan, 66-679; stead Co., 67-405; Browning v. Brown v. Byam, 59-52; Ind. Dist. Gosnell, 91-448; Heathcote v. Has- v. Schreiner, 46-172; Rush v. Rush, kins, 74-566; Wishard v. McNeil, 46-648, and 48-701; State v. Whit- 78-40; White v. Gray, 92-525; Cal- comb, 52-85; Bennett v. Carey, 72- lanan v. ^Etna Nat'l Bk., 84-8; 476; Oliver v. Riley, 92-23; Heath- Ennis v. Fourth Street Bldg. Assn., cote v. Haskins, 74-566; Bennett 71 N. W., 426; Mogelberg v. Clev- v. Carey, 72-476; Seddon v. State; inger, 93-736. 69 N. W., 671. 7 Code, Sec. 4091; Hunt v. Ste- * Code, Sec. 4091; Bickel v. Ers- vens, 26-399; Dahms v. Alston, kine, 42-213; Webster v. Paige, 54- 72-411; Heathcote v. Haskins, 74- 461. 570. s Code, Sec. 4091; Oilman v. s Morgan v. Small, 33-118; Gold- Donovan, 53-362. smith v. Clausen, 14-278; Fuller v. e Code, Sec. 4091; Luscomb v. Stebbins, 49-376; Shelley v. Smith, Maloy, 26-444; Brewer v. Holborn, 50-543; Partridge v. Barrow, 27-96; 34-473; Niagara F. Ins. Co. v. Larson v. Williams, 69 N. W., 441. Rodecker, 47-162; Irions v. Key- Reno v. Teagarden, 24-144. stone Mfg. Co., 61-406; Teabout v. 440 TO REVERSE OR MODIFY JUDGMENTS. [ 1212, 1213. fact that the directors have levied a tax to pay it will not estop the district 10 Process in a cause served on the agent of an insurance company, in another county than the one where the loss occurred, is not such fraud as will authorize the setting aside the judgment, even though the agent on whom it was served undertook to put the notice where it would be mailed to the general agent of the company, and it never reached him, and he was ig- norant of the pendency of the suit. 11 A decree of divorce obtained by fraud may be set asi'de, notwithstanding the rights of third parties have intervened. 12 And a petition for a new trial on the ground of fraud need not allege it in terms; it will be sufficient if it sets out facts which in law amount to fraud. 13 Fraud and negligence of the party's attorney in not interposing a valid defense is no ground for vacating a judgment. 14 Fraud, in the former trial, being shown, which is sufficient to constitute rea- sonable grounds to believe that a different result may be anticipated on the re-trial, the judgment should be va- cated. 15 1212. Same For erroneous proceedings against a minor, or person of unsound mind, etc. When in an action against a minor an attorney appeared for him and was appointed guardian ad litem, it was held, in the absence of a showing of prejudice, the judgment should not be set aside because he did not appear by his regular guardian. 16 A minor cannot after the expiration of the year question the correctness of a judgment against him by collateral proceedings. 17 Other cases in which it was held that a minor was entitled to a new trial. 18 1213. Same For the death of one of the par- ties before the judgment is rendered. Where a judg- ment is rendered in favor of a party in an action after 10 Ind. Dist. v. Schreiner, 46-172. & Le Fever v. Stone, 55-49. 11 Niagara Ins. Co. v. Roderick, i* Jones v. Leech, 46-186. 47-162. 15 Brown v. Byam, 59-52. 12 Rush v. Rush, 46-648; Whit- is Webster v. Paige, 54-461; comb v. Whitcomb, 46-437; State v. Bickel v. Erskine, 43-213. Whitcomb, 52-85. 17 Dahms v. Alston, 72-411. is Heathcote v. Haskins, 74-570. 1214.] TO REVERSE OR MODIFY JUDGMENTS. 441 his death, the judgment is voidable only, and will be con- sidered valid unless set aside as provided in this chap- ter, on an adjudication that there is a valid defense to the action. 19 1214. Same For unavoidable casualty, or mis- fortune, etc. A party intending to appear and defend an action, but being prevented by illness from inter- posing his defense, which is a valid one, is entitled to have the judgment rendered by default against him va- cated. 20 But the mere loss of a note constituting a de- fense, is not ground for vacating a judgment. 21 And the loss of all the written evidence in a case on which it was tried, occurring after judgment, and appeal to the su- preme court, is no ground for a new trial, as it may on proper application be substituted. 22 A married woman, duly served with an original notice, is presumed in the absence of evidence to the contrary to understand' its object and purpose, and how the action will affect her rights, and if she neglects to appear and defend, and de- fault and judgment is taken against her, she can not have it set aside on the ground of unavoidable casualty or misfortune. 23 If the defendant is misled, by an error in the copy of the notice served on him, in regard to the time of the commencement of the term of court, it might be a sufficient averment of casualty or misfortune, but in such a case, where it appeared he had taken advice as to the necessity of his appearance, owing to certain alle- gations in the petition inconsistent with ihe notice, it was held he was not entitled to relief. 24 Negligence of one's attorney is not a ground for a new trial. 25 Xor is the absence of an attorney on account of other engage- ments. 26 But negligence of an attorney which is not 19 Gilman v. Donovan, 53-362. 23 Teabout v. Roper, 62-603. 20 Luscomb v. Moloy, 26-444; 24 Irions v. Keystone Mfg. Co., Brewer v. Holborn, 34-473; Tea- 61-406; Browning v. Gosnell, 91- bout v. Roper, 62-603. 448. 21 Miller v. Albaugh, 24-128; see 2.-. Jackson v. Gould, 65 N. W., Brewer v. Holborn, 34-473. 406; Church v. Lacy, 71 N. W., 338; 22 Loomis v. McKenzie, 48-416. Mogelberg v. Clevinger, 93-736. 2tf Grove v. Bush, 86-94. 4.12 TO REVERSE OR MODIFY JUDGMENTS. [ 1215, 121G. imputable to the client and which amounts to an un- avoidable casualty or misfortune may be ground for granting a new trial. 27 1215. Same For error in a judgment shown by a minor within twelve months alter arriving at full age. All of the cases which would come under this sub- division have been fully treated of in this chapter and in the chapter on new trials. 28 1216. Of equitable proceedings. Courts of equi- ty have jurisdiction to grant relief against judgments obtained by fraud in cases where the fraud is not discov- ered until the expiration of a year from the time of the rendition of the judgment. 29 But the remedy in such cases is defined by the statute, and relief can only be granted on the grounds set out in the statute, and a promise by one seeking to foreclose a mechanic's lien, that he would pay the claim of another person, holding a prior lien on the premises, if the latter would not ap- pear and assert such lien, is not such a fraud as will authorize the setting aside of the judgment, on failure of the promisor to make such payment. 30 A judgment can not be modified in equity when it was rendered for more than the amount due by agreement of the attorney of the party thereto. 31 When a judgment on a note was rendered for a much less sum than was really due, by reason of a mistake of the clerk in making the assess- ment, and the mistake was not discovered until after the time to correct the error by motion, and not until the case had been appealed to the supreme court and there affirmed on motion of the plaintiff, the appeal not hav- ing been perfected, and judgment rendered for the same amount as in the court below it was held the party might maintain an equitable proceeding in the court be- 27 Ennis v. Fourth Street Bldg. so Lumpkin v. Snook, 63-515; Assn., 71 N. W., 426. McConkey v. Lamb, 71-636; Lar- 28 See chapter on New Trials. son v. Williams, 69 N. W., 441; 2 Dist. Twp. v. White, 42-608; Jackson v. Gould, 65 N. W., 406. Bowen v. The Troy, etc., 31-460; si McConkey v. Lamb, 71-636. Clark v. Ellsworth, 84-525. 1217, 1218.] TO REVERSE OR MODIFY JUDGMENTS. 443 low to correct the error. 32 A judgment or decree should not be set aside without notice to the adverse party. 33 An action in equity to set aside a judgment will not lie for errors of the court which might have been corrected on motion or on appeal if they do not affect the jurisdic- tion. 34 1217. When the application may be by motion. The proceedings to correct mistakes or omissions by the clerk, or irregularity in obtaining the judgment or order, must be by motion served on the adverse party or on his attorney in the action, and within one year, and when made to vacate a judgment because of irregularity in obtaining it, the motion must be made on the second day of the succeeding term. 35 A mistake by the clerk in entering a judgment may be corrected by motion even after payment and satisfaction of the erroneous judg- ment by the defendant. 36 And a judgment prematurely rendered will be set aside on motion. 37 Courts possess the inherent power to enter judgments nunc pro tune, and the lapse of time will not bar its exercise, but sec- tion 4093, of the code, does" not apply to an application for a nunc pro tune order for the entry of judgment when that duty has been omitted by the clerk. 38 Nor to a mo- tion to correct a record made by a party against whom the court, by mistake, rendered a personal judgment without having jurisdiction. 39 Reference is made to the chapter on new trials for the form of the motion there given which may be used with such modifications as may be necessary. 40 1218. When the application must be by peti- tion. The proceedings to obtain a new trial where the defendant is served by publication, have already been discussed. 41 In all other cases mentioned in this chap- 32 Partridge v. Harrow, 27-96. 37 Huebner v. Farmers Ins. Co., ss Throckmorton v. Stout, 3-580; 71-20. Keeney v. Lyon, 21-277; Yetzer v. ss Fuller v. Stebbins, 49-376. Martin, 58-612. 39 Shelley v. Smith, 50-543. s* Geyer v. Douglass, 85-93. *<> Chapter on New Trials. ss Code, Sec. 4093. *i Chapter on New Trials. se Goldsmith v. Clausen, 14-278. 444 TO REVERSE OR MODIFY JUDGMENTS. [ 1219. ter, except those set forth in the preceding section, the party seeking to reverse, vacate or modif3 r a judgment or order must proceed by petition verified, which must set out the judgment or order complained of, the facts or er- rors constituting a cause for vacating or modifying it, and the facts constituting a defense to the action, if the party applying was a defendant in the judgment; and such pe- tition must be filed within a year after the judgment or order was made, unless the party instituting the pro- ceedings is an infant or person of unsound mind, in which case the petition may be filed within one year after the disability is removed, unless the proceedings are in equity. 42 An objection that an application to va- cate a judgment does not state the facts constituting a defense, and is otherwise informal, must be taken ad- vantage of by motion for a more specific statement, or by demurrer, and can not be raised on the trial on the merits, or on an appeal. 43 The provisions of section 4094, of the code, are directory only, and a petition not verified confers jurisdiction on the court which may allow the plaintiff to amend. 44 1219. Same When grounds discovered after term. Where the grounds for a new trial could not, with reasonable diligence, have been discovered until after the term at which the verdict, report of referee or decision was rendered or made, the application must be by petition filed, as in other cases, and not later than the second term after the discovery, and within one year after final judgment was rendered. The notice will be served and returned, and the defendant held to appear as in an original action; the facts stated will be consid- ered denied without answer, and the cause tried by or- Code, Sees. 4092, 4094; Keeney Nat'l Bk., 84-8; Worth v. Wetmore, v. Lyon, 21-277; Arnold v. Hawley, 87-62; Council Bluffs L. & T. Co. v! 67-313; Hintrager v. Sumbargo, 54- Jennings, 81-470; Walker v. Free- 604; Freeman v. Hart, 61-525; love, 79-752: Griffith v. Milwaukee Reno v. Teagarden, 24-144; Dist. Harv. Co., 92-634. Twp. v. White, 42-608; Bond v. Turner v. First Nat'l Bk., 30- Epley, 48-600; Callanan v. ^Etna 191. 4* Rush v. Rush, 46-648. 1220.] TO REVERSE OR MODIFY JUDGMENTS. 445 dinary proceedings. 45 The petition must show diligence to discover the evidence before trial. 40 The petition un- der this section must be filed and the notice served within a year from the date of the judgment, and the time commences to run from the date of the decree or judgment in the trial court. 47 1220. Of pleadings, practice, etc. In the pro- ceedings by petition treated of in this chapter, except as otherwise stated, the party will be brought into court in the same manner, on the same notice as to time, mode of service and return, and the pleadings, issues, and form and manner of trial will be governed by the same rules and all proceedings conducted in the same man- ner, as near as may be, and with the same right of ap- peal, as in an original action by ordinary proceedings, except that no new cause of action, or defense can be in- troduced, and the cause of the petition must be first tried and tried alone. The matters stated in the petition will be taken as denied without answer and the issues will be tried to the court. 48 To entitle a party to a new trial under the second or fifth grounds stated in code, section 4091, he must prove due diligence as well as the existence of good cause. 49 Pending an application for a new trial made subsequent to the trial term, under sec- tion 4092, of the code, it .has been held a change of venue might be granted for cause shown. 50 But it is held other- wise, under section 4091, subdivision 4, of the code. 51 A 45 Code, Sec. 4092; Richards v. Markley v. Owen, 71 N. W., 431: Nuckolls, 19-555; First Nat'l Bk. Mortell v. Friel, 85-738; Kruidenier v. Murdough, 40-26; see cases last v. Shields, 77-504; Wishard v. Mc- cited; McConkey v. Lamb, 71-636; Neil, 78-40; Callanan v. ytna Heathcote v. Haskins, 74-566; Nat'l Bk., 84-8; Lundon v. Wad- Council Bluffs L. & T. Co. v. Jen- dick, 67 N. W., 388. nings, 81-479; Reed v. Lane, 65 N. * Miller v. Albaugh, 24-128; W., 380. Stuckslager v. McKee, 40-212; 46 stuckslager v. McKee, 40-212. McConkey v. Lamb, 71-636; Heath- 47 Gray v. Coan, 48-424; Bond v. cote v. Haskins, 74-566; Council Epley, 48-600. Bluffs L. & T. Co. v. Jennines, 43 Code, Sees. 4092, 4095; Niagara 81-480; Reed v. Lane, 65 N. W., Ins. Co. v. Rodecker, 47-162; Car- 380. penter v. Brown, 50-451; Brown v. so Gibbs v. Buckingham, 48-96; Byam, 59-52; Darrance v. Preston, State v. Whitcomb, 52-85. 18-396; Bennett v. Carey, 72-476; si Oilman v. Donovan, 59-76. Mogelberg v. Clevinger, 93-736; 44:6 TO REVERSE OR MODIFY JUDGMENTS. [ 1220. petition under section 4092 for a new trial, which states that the grounds for a new trial could not, with reason- able diligence, have been discovered before, is not de- inurrable. 52 After a cause has been appealed and is pending in the supreme court, the court below can not make a nunc pro tune order without notice to the other party. 53 Where an insufficient petition for a new trial is filed within the year, and after the expiration of the year an amended petition is filed, setting up facts which would be sufficient, it was held not to entitle the party to a new trial. 54 A motion to vacate a judgment against a garnishee for failure to answer, when he had notice of the time and place when and where his answer was to be taken, may be made after the term at which judgment was rendered. 55 An appeal lies from a proceeding to va- cate a judgment for fraud. 56 But it can not be tried de novo in the supreme court. 57 Laches can not be imputed to one who brings his action within the time required. 58 The error in judgment referred to in subdivision 6, in section 4091, of the code, is error of law only. 59 It is only error of fact committed by a trial court that can be reviewed by a writ of error coram nobis. 60 An order for a guardian's sale is not a judgment, and the provisions of the law relating to reversing, vacating and modifying judgments, have no application to- such a case. 61 The petition in cases under section 4092, of the code, need only show the facts on which the new trial is asked, as in other cases. 62 Under the law providing for new trials it is held when the petition is based on the ground of accident or surprise, petitioner must show that he could not, by reason of the accident or surprise, with reasonable diligence, properly defend the action, or could not by such diligence have discovered the evi- 52 Woodman v. Button, 49-398. ss j n d. Dist. v. Schreiner, 46-172. ss Turner v. First Nat'l Bk., 30- so Bickel v. Erskine, 43-213. 191. 60 McKinney v. Western Stage 5*Harnett v. Harnett, 59-401. Co., 4-420. BS Thomas v. Hoffman, 62-125. i Bunce v. Bun Code, Sec. 4329. 33 Code, Sec. 4327. so Code, Sec. 4330. 84 Code, Sec. 4335. CHAPTER LXXVIL OF RECEIVERS. Sec. 1232. An executive officer. 1233. When power should be exercised. 1234. Appointed in any civil action. 1235. Not appointed for benefit of strangers. 1236. Of the application. 1237. Of notice of the application. 1238. Of the petition. 1239. In cases of partnerships. 1240. In cases of mortgaged property. 1241. In cases of corporations. 1242. Rights of third parties protected. 1243. His qualification. 1244. His powers and duties. 1245. His liability. 1246. His compensation. 1247. He can not be garnished. 1248. Of appeal. Section 1232. An executive officer. A receiver is an indifferent person between the parties to a cause, ap- pointed by the court to receive and preserve the property in litigation pendente lite, when it does not seem reason- able to the court that either party should hold it. 1 He is an officer of the court and the property entrusted to his care is regarded as being in custodia legis, for the benefit of whoever may finally establish title thereto. 2 1233. When power should be exercised. The power to appoint a receiver is an extraordinary one, 3 1 High on Receivers, Sec. 1; Hunt v. Wolfe, 2 Daly, 303; Battle Booth v. Clark, 17 How., 322; v. Davis, 66 N. C., 252; Hooper v. Waters v. Carroll, 9 Yerg., 102; Winston, 24 111., 353; Ellicutt v. Baker v. Administrator of Bacus, Warford, 4*Md., 80; Kaiser v. Kel- 32 111., 79; Devendorf v. Dickinson, ler, 21-95. 21 How., 275. 3 Crawford v. Ross, 39 Ga., 44; 2 Booth v. Clark, 17 How., 322; Furlong v. Edwards, 3 Md., 112. 456 1234.] RECEIVERS. 457 and always to be exercised with the utmost caution and only when the court is satisfied that it is necessary to prevent manifest wrong and injury. 4 But it need not appear that the party applying for a receiver is entitled to recover before such appointment can be made. It is sufficient if it appear from the showing made that he has a probable right to recover, 5 and a receiver will not be appointed unless a showing is made which clearly brings the case within the statute. 6 Xor, as a general rule, will a receiver be appointed at the instance of one tenant in common, who is out of pos- session, against one who is in possession, under such cir- cumstances that he is not liable to account. 7 1234. Appointed in any civil action. At com- mon law the power to appoint receivers was vested in courts of equity, 8 but under our statute a receiver may be appointed in any civil action or proceeding, whether legal or equitable, 9 where a proper case is made, and on petition of either party to the action, wherein he shows that he has a probable right to, or interest in, any prop- erty which is the subject of the controversy, and that such property, or its rents or profits, are in danger of being lost or materially injured or impaired; and on such notice to the adverse party as the court or judge shall prescribe, the court, or, in vacation, the judge thereof, if satisfied that the interests of one or both par- ties will be thereby promoted and the substantial rights of neither unduly infringed, may appoint a receiver. 10 Where an assignee for the benefit of creditors is enjoined from acting, a receiver may be appointed to take charge of the property. 11 * Crawford v. Ross, 39 Ga., 44. i Varnum v. Leek, 65-753. s Code, Sec. 3822; The Des s High on Receivers, Sec. 40. Moines Gas Co. v. West, 44-25; Code, Sec. 3822; Jones v. Graves, Cofer v. Echerson, 6-505; Saylor v. 20-596; Rabb v. Albright, 93-50; Mockbie, 9-211; Clark v. Raymond, Smith v. Dayton, 62 N. W., 650; 84-251; Dickerson v. Cass County Dickerson v. Cass County Bk., 64 Bk., 64 N. W., 395. N. W., 395. 6 Sleeper v. Iselin, 59-380; Wai- ' 10 Code, Sec. 3822. lace v. Pierce- Wallace Pub. Co., 70 n Walker v. Stone, 70-103. N. W., 216. 458 RECEIVERS. [ 1235, 1236, 1237. 1235. Not appointed for benefit of strangers. The party asking for the appointment of a receiver must have an existing interest in the property in controversy. If he has parted with his interest the court will refuse to make the appointment, even though the offense com- plained of was committed at a time when he had an in- terest in the subject-matter. 12 So, a stranger to the suit or proceeding, and having no interest therein, can not procure the appointment of a receiver. 13 1236. Of the application. The application for the appointment of a receiver may be embodied in the original petition in the cause, or it may be in an amend- ment to it setting forth facts which, with those stated ; n the original petition, are sufficient. 14 If it is in a case where no notice is required. 15 the ap- plication is usually heard on the petition of plaintiff and affidavits. 16 If notice is required, then the hearing will be on the petition, and other pleadings, if any, and such other proofs as the court or the judge deems proper. 17 The appointment of a receiver may be made at any stage of the case, even at final hearing. 18 So an appointment may be made in a proper case at any time during the pendency of the action and after an appeal is taken. 19 And one who has no right in the property cannot ques- tion the appointment of a receiver. 20 1237. Of notice of the application. Formerly no- tice of the application for the appointment of a receiver was required to be given the opposite party in nearly all cases, before the court would entertain the application, 21 and as a general rule it is held that if the appointment be 12 Smith v. Wells, 20 How. Pr., i Mitchell v. Roland, 63 N. W., 158. 606. is O'Mahoney v. Belmont, 37 N. 20 Bartlett v. Bilger, 92-732. Y. Supreme Ct. R., 223. 21 Verplank v. Mercantile Ins. n Jones v. Graves, 20-596. Co., 2 Paige, 438; Sanford v. Sin- 13 Maish v. Bird, 59-307. clair, 8 Paige, 373; Field v. Ripley, IB Code, Sec. 3822; French v. Gif- 20 How. Pr., 26; Blondheim v. ford, 30-148; Bisson v. Curry, 35- Moore, 11 Md., 365; Rogers v. 72, 80; Jones v. Graves, 20-596. Dougherty, 20 Ga., 271; Whitehead IT Code, Sec. 3822. v. Wooten, 43 Miss., 523. is Schulte v. Hoffman, 18 Tex., 678; High on Receivers, Sec. 109. 1237.] RECEIVERS. 459 made in vacation and without notice to the adverse party, it is error, 22 unless there are peculiar facts or cir- cumstances set forth in the petition rendering such ac- tion proper. Thus it is held that where the adverse party is not within the jurisdiction of the court, and can not be served with notice, or can not be readily served with notice, the court may, under some circumstances, appoint a receiver without notice. 23 So a receiver may be appointed before the defendant has been served with notice of the pendency of the action. 24 Notice of the application for the appointment of re- ceiver may be in the following form: FORM OF NOTICE OF APPLICATION FOR APPOINTMENT OF RECEIVER. Title, Venue. To , defendant, or to , his attorney: You are hereby notified that the plaintiff will on the day of , 18 , at the hour of o'clock A. M., at (place), Iowa, make application to the honorable , judge of the district court for the judicial district of Iowa, for the appointment of a receiver in the above entitled cause. Said application will be based on the petition of the plaintiff, now on file, and affidavits, copies of which are hereto at- tached. You can appear and resist said application if you see proper. Dated , 18. , plaintiff, by , his attorney. If, as is customary, the judge not only fixes the notice which shall be given the adverse party, but also orders copies of the affidavits to be served, such service may be made by an officer who should make proper return, or service may be accepted by the parties on said notice, thus: FORM OF ACCEPTANCE OF SERVICE. Due and legal service is hereby accepted of the within notice and copy of affidavits attached. Dated , 18. (Signature.) 22 French v. Gifford, 30-148; Bis- 23 Maish v. Bird, 59-307. son v. Curry, 35-72; Howe v. Jones, 21 Jones v. Graves, 20-596. 57-130. 460 BECEIVERS. [ 1238, 1239. 1238. Of the petition. The petition for the ap- pointment of a receiver may be in the following form: FORM OF PETITION FOR THE APPOINTMENT OF A RECEIVER. Title, | Venue, f Par. 1. The plaintiff states that on the day of , 18 , he entered into partnership with the defendant under a written agree- ment, a copy of which is attached hereto marked "A," and made a part hereof. Par. 2. That on the day of , 18 , and during the exist- ence of said partnership, said defendant took exclusive possession of the partnership books and all of the stock and property of said firm and has ever since prevented plaintiff from having any access to the same, and from in any manner participating in the partnership business and refuses to confer with plaintiff regarding said partnership business. Wherefore plaintiff prays that said partnership may be dissolved, that an accounting may be had under the order of this court of said part- nership business, and the amounts due plaintiff and defendant ascer- tained. That a receiver may be appointed to take possession of and sell said partnership property, and that the proceeds of said partnership property may be applied, first, in payment of the costs of said receiver- ship and, second, in payment of the partnership debts, and the balance be divided between said partners according to their respective rights thereto, and for such other and further relief as may be equitable in the premises and for costs. , attorney for plaintiff. (Add verification and attach exhibit "A" referred to.) 1239. In cases of partnership. Courts are fre- quently asked to appoint receivers in actions between partners for an account and settlement of their partner- ship affairs, and to close up the business of the firm; and their jurisdiction to do so in cases where the parties can not agree as to the disposition of the partnership prop- erty is well settled. 25 A partnership agreement is bind- ing upon the parties, and they must adhere to its terms. Neither partner is at liberty to recede from it against the will of the other, without a sufficient cause. Mere dissatisfaction by one partner will not justify him in filing a bill for dissolution, 20 where the partnership has not expired by virtue of the articles of agreement. It 25 Saylor v. Mockbie, 9-209. ze Henn v. Walsh, 2 Ed. Chy., 159. 1239.] RECEIVERS. 461 must appear that the case is such a one as would author- ize a decree for a dissolution of the partnership before the court will interfere by appointing a receiver. 27 In cases where the right to dissolve the partnership exists, and the articles of co-partnership do not provide for the settlement of the firm affairs, and the partners can not agree with reference thereto, a receiver will be ap- pointed on proper application therefor. 28 So an assignee of a partner who has succeeded to his interest in the firm, may have a receiver appointed in certain cases. 29 While it is the policy of the law and the courts in the appoint- ment of a receiver to wind up the business of the partner- ship as speedily as possible, yet, when it appears to the court to be for the best interest of the partnership that the business be carried on until the property can be dis- posed of, it may so direct. 30 The power of the court or the judge under the statute in exercising control over, or ordering the sale of the partnership property or the carrying on of the firm's business, seems to be ample to justify any action which the court, or judge, shall deem for the best interest of the parties. 31 It is a well settled rule that to entitle one claiming to be a partner to the appointment of receiver to wind up the partnership af- fairs, it must appear that there was a completed part- nership at least so as to entitle him to a participation in the profits of the business. 32 If, after the dissolution of the partnership, either partner uses the partnership property inconsistent with the winding up of its affairs, it is a fraud on the other partners, and upon the creditors of the partnership, and on proper application a receiver will be appointed to take charge of the property. 33 The 27 Jackson v. De Forest, 14 How., si Code, Sec. 3822; Saylor v. 81; Garretson v. Weaver, 3 Edw. Mockbie. 9-209. Chy., 385; Henn v. Walsh, 2 Ed. 32 Goulding v. Bain, 4 Sanf., 716; Chy., 129. Kerr v. Potter, 6 Gill., 404; Hobart 23 Law v. Ford, 2 Paige Ch., 310; v. Ballard, 31-521; Dupuy v. Sheak, Henn v. Walsh, 2 Edw. Ch., 129. 57-361. 29 Maynard v. Railey, 2 Nev., 313. as Gortner v. The Trustees of the so Martin v. Van Shaik, 4 Paige Villaare of Canajoharie, 2 Barb., Ch., 479; Allen v. Hawley, 6 Fla., 625; West v. Chasten, 12 Fla., 315; 164; Jackson v. De Forest, 14 How. Harding v. Glover, 18 Ves., 281. Pr., 81. 462 BECEIVEKS. [ 1240. acts of a partner which will justify a court in appointing a receiver at the instance of another partner to take pos- session and control of partnership property are many, and the following have been held sufficient: When, upon dissolution, one partner prevents or seeks to ex- clude the other from participation in the management of the firm effects. 34 Where a partner violates the arti- cles of co-partnership, or is guilty of a breach of duty. 35 Where there is a serious and apparently irreconcilable disagreement between the partners both as to the control and disposition of their effects and as to their respective demands against each other. 36 Where one partner mismanages the firm business, pro- ducing insolvency. 37 Where the conduct of the defend- ant partner has been such as to satisfy the court that he has deliberately resolved to break UD and ruin the firm business, and the personal relations between the part- ners are such that they could not carry on business ad- vantageously together. 38 A partner in possession is not entitled to a receiver in any case; 39 as the object and pur- pose of appointing a receiver as between partners is only for the protection of the party complaining against the adverse party in possession. 1240. In cases of mortgaged property. It seems that a receiver will not be appointed on the application of a mortgagee, to take possession of mortgaged premises, unless it clearly appears that the whole premises are in- sufficient to pay the debt, or that the court should take control of the estate to protect the rights of a party who has a clear and strong claim against it 40 Nor will a re- ceiver be appointed in an action to foreclose a mortgage when the rents and profits of the land are being applied 34 Terrell v. Goodard, 18 Ga., 664. so Smith v. Lowe, 1 Edw. Ch., 35 New v. Wright, 44 Miss., 202; 33. Allen v. Hawley, 6 Fla., 164. *o Callanan v. Shaw, 19-185; My- ss Whiteman v. Robinson, 21 ton v. Davenport, 51-583; White v. Md., 30. Griggs, 54-651; see also Edie v. Ap- 37 Boyce v. Burchard, 21 Ga., 74. plegate, 14-273. 38 Sutro v. Wagner, 8 C. E. Gr., 388. 12-10.] RECEIVEKS. 463 in payment of the mortgagee's debt, and necessary ex- penses incurred in the care and management of the property. 41 A mortgagee has the right to the appoint- ment of a receiver only as to property, upon which his mortgage is a lien, and then only where there is danger of its being lost or materially injured; he can not have a receiver to take charge of crops on the mortgaged premises during the period of redemption. 42 The ap- pointment of a receiver after a final judgment of fore- closure to take charge of mortgaged premises is unusual, and, if allowable at all, the application should be sup- ported by a strong showing. 43 Whether a receiver will be appointed in any case to take possession of a homestead pending proceedings to foreclose a mortgage thereon, qua?re. When a party ex- ecuted a chattel mortgage on his stock of merchandise to creditors having claims nearly equal in amount to the value of the stock, and the mortgagees have possession thereunder by an agent, and are selling the stock in the ordinary course of trade, and are garnished by an unse- cured creditor of the mortgagor, this is no ground for the appointment of *a receiver. 44 In cases not covered by this section of the statute the court may -appoint a re- ceiver in accordance with the stipulation, of the parties made in the contract creating the indebtedness. 45 The mortgagee of goods, whose debt is not due, but w r ho has taken possession of the property under his mort- gage which provided that he might take possession when- ever he should choose so to do, and sell the goods at pub- lic auction, or so much thereof as should be sufficient to pay the amount due, or to become due, as the case might be, with all reasonable costs pertaining to the sale of the same, and has been garnished by the creditors of the mortgagor, and has instituted his action in equity to foreclose the mortgage, he may have a receiver to take Myton v. Davenport, 51-583. *s Adair v. Wright, 16-387. 42 White v. Griggs, 54-651; Swan ** Silverman v. Kuhn, 53-436. v. Mitchell, 82-307; American Inv. Hubbell v. Avenue Inv. Co., Co. v. Farrar, 87-437. 66 N. W., 85. 4G-i RECEIVERS. possession of and sell the goods in the ordinary course of business; 46 it might be otherwise were it not for the provisions of the mortgage. 47 The decree rendered in an action for the appointment of a receiver in a foreclos- ure suit upon the the allegation that the property was in- adequate to pay the mortgage debt, constitutes an ad- judication upon the right of the receiver to collect the rents and profits of the property. 48 Though the mort- gage creates a lien upon the rents and profits and stipu- lates that a receiver maybe appointed, still the mortgagee is not, as a matter of course, entitled to have a receiver appointed after a judgment of foreclosure, if it does not appear that such rents and profits are being wasted or that they are being improperly applied on prior mort- gages. 49 And under a mortgage providing that in case of default the mortgagee might take possession and ap- ply the rents and profits to the satisfaction of the mort- gage, and when it was not stipulated that a receiver might be appointed it was held error to make such ap- pointment and to take possession of the property during the period of redemption for the benefit of the mort- gagee. 50 Nor is a mortgagee entitled to the appoint- ment of a receiver where the mortgage does not give the mortgagee the right of possession before sale, nor pledge the rents and profits. 51 If, however, the mortgage pledges the rents for the payment of the debt, and they are not so applied, and the tenant is a foreign corpora- tion and insolvent and the security is insufficient, and the mortgage authorizes a receiver to be appointed on de- fault, such appointment is proper. 52 1241. In cases of corporations. A receiver may be appointed for a corporation, and the power of courts to appoint receivers is frequently invoked in cases of 46 Maish v. Bird, 59-307. BI American Inv. Co. v. Farrar 47 Maish v. Bird, 59-307. 87-437. 4 Goodhue v. Daniels, 54-19. *z Stetson v. Northern Inv. Co., 49 Paine v. McElroy, 73-81. 70 N. W., 595. eo Swan v. Mitchell, 82-307. 1242, 1243.] RECEIVERS. 465 railroads. 53 An action resulting in the appointment of a receiver for a corporation is an adjudication of his power to sue for and receive an assessment upon unpaid stock. 54 This statute does not authorize the dissolution of a corporation nor the placing of its property in the hands of a receiver by a court of equity merely because there are dissentions among its stockholders. 55 1242. Rights of third parties protected. While the court will, in a proper case, appoint a receiver, yet if third parties have acquired rights in good faith, the court, or judge, will not order the property into a re- ceiver's hands; such parties' rights can not be adjudi- cated in this summary and collateral method; 56 but where a receiver had been appointed, and the party made no resistance to the order, and did not appeal from, the same, he could not afterward, by an assignment, direct the disposition to be made of any part of the property, as he had no control over the fund; it being in a court of equity he could not interfere in its equitable distribu- tion; 57 and when a receiver has been appointed, and it turns out on a hearing that the property belonged to in- tervening third parties, unless they be benefited by the appointment, they can not be made to pay any of the re- ceiver's fees and expenses. 58 1243. His qualification. The appointment may be in the following: form: Title, Venue FORM OF APPOINTMENT OF RECEIVER. .1 On reading the pleadings (and the affidavits of A B and C D, if any are filed) herein filed, and on motion of the plaintiff (and having heard defendant's counsel, if a hearing is had). Ordered: 1. That be, and he is hereby, appointed a receiver of (specify the property with as much particularity as possible). sa Cook v. Cole, 55-70; The Bk. ns Wallace v. Fierce-Wallace Pub of Montreal v. C., C. & W. R. Co., Co., 70 N. W., 216. 48-518. so Levi v. Karrack, 13-344. s* Stewart v. Lay, 45-604; Schoon- s- Tailor v. Gillen, 25 Tex., 508; over v. Hinckley, 48-82. McGowan v. Meyers, 66-102. ss Howe v. Jones, 66-156. Vol. 11-30 4G6 EECE1VEES. [ 1243. 2. That said hereby appointed, before entering upon the dis- charge of his duties, shall file a bond, with the clerk, with sureties to be approved by him, in the penalty of dollars, and take the oath prescribed by law. 3. That upon the filing of such bond, and taking of such oath, such receiver shall be vested with" the usual rights and powers of re- ceive'rs under this court (and specify any peculiar powers bestowed, or directions given). Done this day of , 18 . , judge, etc. Before entering on the discharge of his duties he must be sworn faithfully to discharge his trust to the best of his ability and must also file with the clerk a bond with sureties to be by him approved in a penalty to be fixed by the court or judge, and conditioned for the faithful discharge of his duties and that he will obey the order of the court in respect thereto; 59 the bond should be in substantially the following form: FORM OF BOND OF RECEIVER. Know all men by these presents that we, , principal, and and , sureties, are held and firmly bound unto (the parties in the action) in the penal sum of dollars, lawful money of the United States, well and truly to be paid to them, and each of them, and their heirs, executors and assigns. The condition of this obligation is such that whereas the said was, on the day of , A. D. 18 , appointed by the district court of the State of Iowa, in and for county (or by the judge of such court), a receiver in an action commenced (or pending) in said court, wherein is plaintiff and is defendant. Now, if the said (name) shall and will, well and faithfully discharge his duties as such receiver, and obey the orders of the court in respect thereto, then this obligation to be void, otherwise to remain in full force and virtue. Dated at , A. D. 18. , principal. sureties. (Sureties should justify as provided by the statute.) The clerk must make following indorsement approv- ing the sureties: 69 Code, Sec. 3823. 1244.] EECEIYERS. 467 FORM OF APPROVAL OF SURETIES. The sureties in the within bond approved by me, and bond filed in my office, this day of , 18 . , clerk, district court. The oath should be in the following form, and either written on the back of the bond or on a separate paper and attached to it: FORM OF RECEIVER'S OATH. I, , receiver in the case of v. , now pending in the district court of county, Iowa, do solemnly swear that I will faithfully discharge my trust as receiver in said cause to the best of my ability. So help me God. (Signature.) I hereby certify that the foregoing oath was administered to by me and subscribed by him in my presence this day of , 18 [Seal.] , clerk of the district court. The receiver, when qualified as above, may enter on his duties. 1244. His powers and duties. Being an officer of the court the receiver is in some respects but an agent of the court for the transaction of the business pertain- ing to his trust, subject to the control of, the court, or judge; he has power to bring and defend actions; to take and keep possession of property; to collect debts; to receive the rents and profits of real property and gen- erally to do such acts in respect to the property commit- ted to him as may be authorized. 60 Ordinarily a receiver's powers are derived from the order of appointment, but it would seem that some dis- cretion must be lodged in him as circumstances may arise calling for speedy action in order to preserve the property committed to his care, in which case courts seem inclined to uphold such action of the receiver when it is manifestly necessary to preserve and protect the property. Thus where certain "mills and a block" were committed to the control of a receiver, it was held he eo Code, Sec. 3824; Smith v. Dayton, 62 N. W., 650. 468 RECEIVERS. [ 1245. might prosecute an action relating to a wharf which was connected therewith, and was originally constructed for the purpose of more conveniently carrying on the mills. 61 He may maintain an action in equity against officers who conceal assets for the purpose of converting them to their own use. 62 Ordinarily he can not act in a foreign State or sue therein. 63 He may take property on ac- count of indebtedness, to be credited as may be approved by the court. 64 And see further as to his rights. 65 In a proceeding under the statute to wind up an insolvent bank the court may, on the application of a receiver, make an ex parte order for an assessment against the stockholders to discharge their liability subject to the right of each stockholder to contest such liability when sued for payment of the assessment. And in such case it is not necessary for the receiver to first exhaust all the assets before enforcing the stockholders' liability. 66 Where a receiver was appointed and an appeal taken from the order of appointment, and a supersedeas filed, the property did not pass into the custody of the receiver until he actually took possession of it, after an affirmance by the supreme court, and until that time the control of the property remained in the defendant. 67 The action resulting in the appointment of a receiver is an adjudication of his power to collect rents, or to sue for an assessment on unpaid stock of a corporation. 68 In all cases where the power of a receiver to do an act is in doubt he should, if possible, apply to the court which ap- pointed him for authority to act. 1245. His liability. As has been seen, the re- ceiver is at all times subject to the orders of the court, or judge, appointing him. If property committed to his ei Grant v. City of Davenport, 18- zer v. Applegate, 85-121; Polk v. 179. Carver, 91-570. 62 Brandt v. Allen, 76-50. ee state v. Union Stock Yards esAyres v. Siebel, 82-347; Bar- State Bk., 70 N. W., 752. ker v. Lamb, 68 N. W., 686. ? Cook v. Cole, 55-70. e* Everingham v. Harris, 68 N. 68 Stewart v. Lay, 45-604 ; Schoon- W., 804. over v. Hinckley, 48-82; Goodhue 65 Kimball v. Gafford, 78-65; Yet- v. Daniels, 54-19. 1245.] EECEIVERS. 469 care is lost or destroyed by reason of his negligence or dishonesty, he is liable. 69 When he acts in violation of the orders of the court appointing him, he may be lia- ble. 70 Where one was appointed receiver for a railroad! which was about to be built, and authorized to do and perform all acts and things necessary to construct and complete the line of road, and to borrow money for such construction, equipment and final completion, and issue certificates therefor which should be a first lien on the road, he was not thereby authorized to issue such certifi- cates for material for said road until the material had been furnished, and such certificates were void. 71 And as such certificates showed on their face that they were issued under the order of the court, the parties were chargeable with notice of the order and the extent of the receiver's power thereunder. 72 He is liable in an action providing for double damages in cases of injuries to stock where a road is not fenced if he is operating a railroad as a receiver. 73 When a railroad was sold under a mortgage foreclosure in which a receiver had been ap- pointed the purchaser took the property free from claims for injuries which had not been reduced to judgment. 74 He may be sued in a court of law in an action for dam- ages against the corporation of which he is receiver, without the plaintiff obtaining leave to prosecute his action from the court which appointed the receiver. 75 Wliere a receiver took possession of a railroad, under order of the United States circuit court, and during said time a claim for damages arose in favor of a party and against the receiver on account of personal injuries, and the cour't ordered the railway to be turned over to de- fendant on condition that it assumed the liabilities in- 69 Kaiser v. Kellar, 21-95. 73 Brockert v. Central Iowa R. TO Manning v. Monaghan, 1 Co., 82-369. Bosw., 459. 74 Brockert v. Iowa Cent. R. Co.,. 71 The Bank of Montreal v. C., 93-132. C. & W. R. Co., 48-518. 75 Allen v. Central R. R. Co., 42- 72 The Bk. of Montreal v. C., C. 683; Kinney v. Crocker, 18 Wis,,. & W. R. Co., 48-518; see Tripp v. 74; Paige v. Smith, 99 Mass., 375; Boardman, 49-410. Hall v. Parker, 111 Mass., 508. 470 BECEIVERS. [ 1246. curred while the road was operated by the receiver, and defendant accepted the property with conditions at- tached, it became liable to plaintiff on account of his claim for damages. 76 So, a receiver is not required to pay interest upon money received by him in discharge of his official duties, upon the ground that he mingles it with his individual funds, or draws therefrom money for his own use, and this is especially true where there is no evidence that he used the trust funds, or that he was negligent or unfaithful in the discharge of his duties. 77 When the property of any company, corporation, firm or person is seized upon by any process of any court of this State, or when their business is suspended by the action of creditors or put into the hands of a receiver or trustee, the debts owing their laborers or servants which have accrued by reason of their labor or employment to an amount not exceeding one hundred dollars to each em- ploye for work or labor performed within ninety days next preceding the seizure or transfer of such property, are to be treated as preferred and paid in full, and if there are not sufficient funds to pay them in full then the same are to be paid pro rata after paying costs. And if such servant or laborer present this claim under oath as provided by the statute within thirty days after such property has been placed in the hands of a receiver or trustee, the latter must pay said claim or claims to the person or persons entitled thereto (after first paying all costs) out of the proceeds of the sale of the property. 78 1246. His compensation. When the statute is silent regarding the compensation of receivers, it is in the power of the court to fix his compensation. 79 The amount of it will depend on the amount of time, care and skill required in the proper execution of his trust; 76 Sloan v. Central la. Ry. Co., ? Gardner v. Tyler, 3 Keyes, 505; 62-733. Magee v. Cowperthwaite, 10 Ala., "Radford v. Folsom, 55-282; 966; Baldwin v. Eazler, 34 N. Y. Howe v. Jones, 60-70. Supr. Ct. R., 275. 78 Code, Sees. 4019 to 4022; Rey- nolds v. Black, 91-1. 1247.] RECEIVEKS. and generally his compensation is paid out of the fund in his hands; nor can he, in a case where no question was made as to the propriety or legality of his appointment, and after he has closed his business, be compelled to ac- cept as part of his compensation a judgment against the party securing his appointment. 80 Nor can he be com- pelled to pay the costs of a reference growing out of the settlements of his accounts where no bad faith on his part is claimed. 81 But where the appointment of a re- ceiver was improper, and it is vacated by the court, the compensation to the receiver may be ordered paid, part from the fund and part by the plaintiff, in the discretion of the court. 82 A receiver may correct his report, and may deduct from the funds in his hands such sum as he may have been compelled to pay as attorney's fees and other charges for collecting the funds in his hands, where these disbursements w T ere made in good faith and were neces- sary to the party entitled to the fund. 83 Where, by agreement of parties, excessive compensation was al- lowed to a receiver, such allowance will not be set aside on the application of one of the parties made more than six months after the order was entered when no appeal has been taken. 84 Ordinarily, a receiver's compensation should be taken from the funds in controversy. 85 1247. He can not be garnished. The possession of the receiver being regarded as that of the court from which he derived his appointment, he can not be gar- nished, nor w r ill the court thus permit itself to be made a party to a litigation in another forum; the process of garnishment in such cases will be regarded as a nullity. 86 To permit him to be garnished would defeat the very ends for which he was appointed. 87 soRadford v. Folsom, 55-282. ss McGowan v. Meyers, 66-99; si Radford v. Folsom, 55-282. High on Receivers, Sec. 151; Tailor 82 French v. Gifford, 31-428. v. Gillen, 25 Texas, 508; see Noe ss Howe v. Jones, 60-78. v. Gibson, 7 Paige Ch., 513. 84 Russell v. First Nat'l Bk., 65- T Field v. Jones, 11 Ga., 413; see 242. Howard County v. Strother, 71-683. so Jaffray v. Raab, 72-335. 472 DECEIVERS. [ 1248. 1248. Of appeals. An appeal will lie from the order appointing or refusing to appoint a receiver. 88 Any irregularity in the proceedings of a receiver must be cor- rected by the court which appointed him, and can not be reviewed in an action in another forum. 89 While it seems a receiver can not appeal from an order directing him to turn over the property in his hands, yet when the order erroneously fixes the amount of property in his custody, and directs him to turn over more than he has, an appeal should be permitted. 90 ss The Des Moines Gas Co. v. Stewart v. Lay, 45-604. West, 44-25. so Howe v. Jones, 60-78. CHAPTEK LXXVIII. OF REDEMPTION. Sec. 1249. What property is subject to redemption. 1250. Of the certificate of sale. 1251. Of redemption made by the defendant. 1252. When redemption may be made by creditors. 1253. Who is a creditor under the statute. 1254. Of redemption by holder of mechanic's lien. 1255. Of redemption in equity. 1256. What law is applicable to the sale. 1257. Of creditors redeeming from each other. 1258. Of computing the time of redemption. 1259. Of the terms of redemption. 1260. Same. 1261. Who obtains the property. 1262. Of the mode of redemption. 1263. Of settling controversies as to the right to redeem or as to the amount to be paid. 1264. Of redemption from sale in parcels, and of the interest of tenants in common. 1265. Of the rights of the purchaser. 1266. Of assigning the right to redeem. 1267. Of the sheriff's deed. 1268. When the deed is constructive notice. 1269. Of the sheriff's return. 1270. Of damages for injury to property, etc. Section 1249. What property is subject to re- demption. As has been seen, any estate in real prop- erty greater than a leasehold interest, having two years of an unexpired term to run, which is sold on execution or attachment, is redeemable. 1 Yet it is held that a decree of sale without redemption, while erroneous, is not necessarily void. 2 1250. Of the certificate of sale. If the property 1 Code, Sec. 4043. see Moore v. Jeffries, 53-202; Gil- 2 Traer v. Whitman, 56-443, and lett v. Edgar, 22-293. 473 474 EEDEMPTION. [1250. sold be subject to redemption, the sheriff must, at the time of sale, execute to the purchaser a certificate of sale, which must contain a description of the property sold, a statement of the amount of money paid by the purchaser, and it must also state that unless redemption is made within one year thereafter, according to law, he, or his heirs or assignees, will be entitled to a deed of the land, or of the interest sold therein. 3 Such certificate is ad- missible in evidence, after the proper foundation is laid for the introduction of secondary evidence, as tending to show the existence and contents of the execution under which the sale was made. 4 If land has been ir- regularly sold under execution, the defendant can not pay off the judgment against him and, having procured the sale to be set aside on the ground of irregularity, compel the purchaser to look to the sheriff, or to the plaintiff, for reimbursement of the amount he paid. The court will, on motion, set aside the credit on the judg- ment to the extent of the bid, and order a re-sale of the property, for the purpose of indemnifying him, and to prevent such re-sale the defendant must reimburse the purchaser. 5 The certificate may be assigned, and the as- signee takes it subject to any equities existing against the assignor. 6 If the purchaser takes a deed at the sale relying on the claim that the other party has no right to redeem, it is not necessary that an offer to redeem be made in order to entitle the execution defendant to main- tain an action to set aside the deed. 7 If a creditor pays money to the purchaser by way of redemption, and takes an assignment of the certificate, he thereby acquires the rights of the purchaser although his redemption may not be effectual. 8 The certificate of sale may be in the following form: s Code, Sec. 4044. Grey v. Dye, 39-360; Hum v. Hill, * Conger v. Converse, 9-554. 70-38; Wilson v. Conklin, 22-452; 6 Fleming v. Maddox, 32-493. Streeter v. First Nat'l Bk., 53-177; e Van Gorder v. Lundy, 66-448; Brooks v. Keister, 45-303. see Seevers v. Wood, 12-295; Citi- ? Fitzgerald v. Kelso, 71-731. zens S. Bk. v. Percival, 61-183; Rush v . Mitchell, 71-333; Wil- Scribner v. Vandercook, 54-580; son v. Conklin, 22-452. 1251.] REDEMPTION. 475 FORM OF SHERIFF'S CERTIFICATE OF SALE. To whom it may concern: I, , sheriff of county, Iowa, hereby certify that by virtue of a general (or special as the case may be) execution to me directed, dated A. D. 18, and issued out of the clerk's office of the district court of the State of Iowa, in and for county, upon a judgment (or judgment and decree of foreclosure) rendered in said court on the - day of A. D. 18 , in favor of , and against , for the sum of dollars debt, and dollars costs, I did on the day of A. D. 18 , levy upon the following described real estate, to-wit (here describe the land levied on), as the property of the said to satisfy the said execution amounting to dollars debt, and dollars costs, together with interest and accruing costs thereon; that I gave four weeks' notice of the time and place of selling said real property under said execution, by posting up printed (or writ- ten) notices thereof at three public places in said county, one of which was at the court house in where the last district court was held, and by causing two publications of said notice to be made in the (name of paper), a newspaper printed at in said county, immediately before th'e time of sale; that in pursuance of the notice of sale, as afore- said, in conformity to law and by virtue of said execution, I did on the day of A. D. 18 , at o'clock in the noon of said day, at the front door of the court house in , in said county, expose and offer the said real estate for sale at public auction, and then and there bid the sum of dollars for the same, (or some part thereof as the case may bo), and that being the highest and best bid offered for said real estate (or some part of it) the same was there openly struck off and sold to the said , for the said sum of dollars, who then and there paid the amount of his said bid to me in cash. Now, unless redemption is made within one year after the date of said sale, according to law, the said , his heirs or assignees, will be entitled to a deed for the said real estate, sold as aforesaid and de- scribed as follows, to-wit (here describe the land sold). In witness whereof, I have set my hand this day of , A. D. 18 (same date as the sale). , sheriff of county, Iowa. 1251, Of redemption made by the defendant. 9 In no case where the defendant has taken an appeal from the district or superior court, even though no super- sedeas bond has been filed, or when he has stayed exe- cution on the judgment, can he redeem. In such cases the sale is absolute. Subject to the above qualifications the same rights of redemption exist whether the sale is made on a general or special execution. 10 Harrison v. Wilmering, 72-727. 10 Code, Sec. 4045; Lombard v. Gregory, 90-682. 476 REDEMPTION. Under provisions of prior law it was held that the vendee of an execution defendant whose land is sold on execution sale, as such vendee may redeem, even though his vendor has taken an appeal from the judgment; but in such a case, if such vendee has become the owner of the land and is in possession prior to the sale, he can not re- deem. 11 Where a party stays a judgment before a justice and a transcript is afterward filed in the higher court and an execution issues, and a sale is had thereon, such sale is absolute. 12 The defendant may redeem within one year from the day of the sale. 13 Statutory redemption can only be effected in the manner and within the time fixed by the statute. 14 If the appeal is not perfected until after the sale the right of redemption exists. 15 The grantee of an execution debtor acquiring the interest of his grantor after the right of a junior lien holder to re- deem is barred, may redeem without subjecting the prop- erty to the claims of such junior lien holder. 16 Redemp- tion by a surviving widow who was a grantee of the heirs of the deceased execution debtor, cuts off the lien of a junior incumbrancer who was a party to the action. 17 Land sold under a judgment against both a principal and surety may be redeemed by the surety. 18 If the debtor's right of redemption is sold under a second execution he may, within the time for redeeming from the first sale, redeem from both sales. 19 Under the code of 1851 the sale of mortgaged property on foreclosure, cut off all right of redemption. Redemption was required to be made before the sale. 20 When a judgmenthas attached as a lien on real estate and it is sold by the judgment debt- 11 Thayerv. Coldren, 57-110; Sie- 50-116; Hughes v. Feeter, 23-547; ben v. Decker, 53-24; Dobbins v. Bradford v. Bradford, 60-201, and Lusch, 53-304; Brown v. Markley, see Fitzgerald v. Kelso, 71-731. 58-689; see Munson v. Plummer, 14 Teabout v. Jaff ray, 74-28. 59-120. is Fitzgerald v. Kelso, 71-731. 12 Brown v. Markley, 58-689. is Moody v. Funk, 82-1. is Code, Sec. 4045; Webb v. Wat- IT Bevans v. Dewey, 82-85. son, 18-537; Mayer v. Farmers Ek., is Bleckman v. Butler, 77-128. 44-212; Hammersham v. Fairall, 44 is Harrison v. Wilmering, 72-727. 462; McKissick v. Mill Owners, etc., 20 Kramer v. Rebman, 9-114. 1251.] REDEMPTION. 477 or and by him conveyed by deed with covenants against incumbrances and of warranty, after which it is sold on execution issued on the judgment, it is held that the judgment debtor has the right of redemption for one year from the date of sale and the grantee has also the right to redeem as a subsequent purchaser, and one right is no bar to the other. 21 If the defendant in good faith pays, and the clerk receives, prior to the expiration of the time of redemption, an ordinary bank check, upon which he realizes the money, though after the expiration of the period of redemption, the money, being ready to be paid to the holder of the certificate of sale promptly and without trouble to him, the payment is good. 22 When the defendant has no right of redemption a judg- ment creditor who did not become such until after the sale can not redeem. 23 And a redemption effected by a sub-agent appointed by the agent is valid if ratified by the principal. 24 If on a sale, subject to redemption, the sheriff makes a deed to the purchaser instead of a certifi- cate of sale, it is an irregularity which will not deprive the judgment debtor of his right to redeem. 25 And it was held that when the debtor or his assignee redeemed land from a sale, it again became subject to sale for the satisfaction of any balance of the judgment under which the prior sale was made, which remained unsatisfied. 26 But this is otherwise when the redemption is made by a creditor or purchaser. 27 When a debtor conveyed to hi.s wife his right of redemption and furnished her the money to make redemption with interest, to hinder and delay his creditors, the land so redeemed remained subject to his debts. 28 The word defendant as used in section 3102 of the code 21 Harvey v. Spaulding, 16-397. Milliard, 14-128; Peckenbaugh v. 22 Webb v. Watson, 18-537. Cook, 61-477. 23 Brown v. Markley, 28-689. 27 Clayton v. Ellis, 50-590; Camp- 2*Teucher v. Hiatt, 23-527. bell v. McGinnis, 70-589; Harms v. 25 Olmstead v. Kellogg, 47-460. Palmer, 73-446; Hardin v. White, 20 Hayes v. Thode, 18-51; Stine v. 63-633. Chambless, 18-474; Crosby v. El- zs Peckenburgh v. Cook, 61-477. kader Lodge, 16-397; Curtis v. 478 REDEMPTION. [1251. of 1873 was held to mean the mortgagor. 29 It will be observed that in the present code the word "debtor" is used. The right of a judgment debtor to redeem, it seems, expires within a year from the date of sale, wheth- er a valid deed be then executed or not. 30 The legal estate of the owner is not divested by the sale until the time for redemption has expired and a deed is made to the purchaser; and a judgment recovered against him in the period allowed for redemption is a lien on his interest in the land and, in case he or his assignee redeems from the prior sale, such judgment may be enforced against the property so redeemed, although the holder of the judg- ment failed to exercise his own rights of redemption. 31 The defendant's right of redemption may be levied on and sold on execution. 32 The right of the defendant to redeem within a year, can not be extended by any act of his, such as a suit to redeem without more. 33 When a surety does not, as provided in section 4003 of the code, object to a stay of execution being granted, he will be considered as having assented thereto, and if it is taken, he will be held to have waived the right to re- deem his property, if sold under such judgment. 34 A party who is surety in a debt for which a judgment is rendered, but has no interest in the property sold, is not a defendant within the meaning of the law and can not redeem. 35 And where the owner of land who was entitled to redeem the same, paid the clerk the amount which said clerk claimed was necessary to effect a re- demption, but by error the sum paid was too small, and afterward, and prior to the expiration of the period of redemption, the grantee of the purchaser at the sale ob- tained a deed therefor, it was held in an action to cancel the deed and certificate, that they should be canceled and 29 Miller v. Ayres, 59-424. ss Hughes v. Feeter, 23-547. so Connor v. Long, 63-295; see 34 Chase v. Welty, 57-230; but Curtis v. Millard, 14-128. see Okey v. Sigler, 82-94. si Curtis v. Millard, 14-128; see ss Miller v. Ayres, 59-424; see Shimer v. Hammond, 51-401. Brooks v. Keister, 45-303; Bleck- 32 Barnes v. Cavanagh, 53-27; man v. Butler, 77-128. Crosby v. Elkader Lodge, 16-399. 1252.] KEDEMPTION. 479 the owner of the land permitted to perfect his redemp- tion by paying the additional sum necessary with ten per cent, interest thereon from date of sale. 36 The right of the defendant to redeem for the first six months after the sale is exclusive. 37 As to right of pos- session. 38 1252. "When redemption may be made by cred- itors. If no redemption be made by the defendant with- in the six months from date of sale, then any mortgagee or creditor of the defendant, whose demand is a lien on the land sold, may redeem the same at any time within nine months from the day of sale; nor can the time to redeem be enlarged by the consent of the purchaser. 39 A junior mortgagee, having assigned the mortgage as collateral security for a debt of his own, may redeem from a sale made on foreclosure of a senior mortgage, and such redemption will inure to the benefit of the as- signee of the junior mortgage; nor will the action of the assignee in such case, in refusing to ratify the acts of the assignor, affect his rights in respect to redemption. 40 The defendant or purchaser of the land only can object if the redemption is made by a creditor prior to the ex- piration of six months from the date of sale. 4 * The right of judgment creditors to ^em from sale of land of their debtor, is barred in nine months from the date of the sale unless exercised by some creditor within that time. 42 The restriction on the defendant as to re- demption, when he takes a stay of execution, or appeals, does not apply to creditors nor to a vendee of the execu- tion debtor. 43 The owner of a claim which has been al- lowed and established against the estate of a decedent may redeem by making application to the district court seWakefield v. Rotherham, 67- say v. Delano, 78-350; Bleckman v. 444. Butler, 77-128; Albee v. Curtis, 77- 37 Code, Sec. 4045. 644. as Code, Sec. 4045; Swan v. Mit- ' *o Manning v. Markel, 19-103. chell, 82-307; American Inv. Co. v. Wilson v. Conklin, 22-452. Farrar, 87-437. 42 George v. Hart, 56-706; New- 30 Code, Sees. 4045-4046; Newell ell v. Pennick, 62-123. v. Pennick, 62-123; George v. Hart, 43 Sieben v. Becker, 53-24; Tha- 56-706; Hum v. Hill, 70-38; Lind- yer v. Coldren, 57-110. 480 EEDEMPTIOX. [ or to any judge of the district where the real estate to be redeemed is situated. Such application will be heard after notice to such parties as said court or judge may direct and must be determined with due regard to the rights of all persons interested. 44 The holder of a judgment recovered on a debt contract- ed prior to the acquisition of a homestead, may redeem from a. sale of such homestead though the judgment rec- ord does not show the facts making the judgment a lien; proof of such facts may be made aliunde. 45 But an exe- cution creditor who has brought in the property under his execution does not have a lien on such property for any unsatisfied balance of his claim, and neither he nor his assignee can redeem under such sale. 46 A junior lien-holder not made a party to the foreclos- ure of a prior mortgage may redeem by action in equity. Not so, however, if his judgment has ceased to be a lien. 47 And in such action the lien-holder may have an account- ing of the rents and profits, and have them applied in satisfaction of the mortgaged debt from which he seeks to redeem. 48 Where a mortgage is foreclosed for one in- stallment of the mortgaged debt, or for a part of the sum secured by the mortgage, and the land sold therefor, the remedy of the mortgagee is thereby exhausted so far as the land is concerned; and he can not, after redemption of the land b '\e mortgagor, subject the land to the pay- ment of that part of the debt remaining unsatisfied, and this is so, though the mortgage secured different notes, some of which are assigned to a third party; and the as- signee of the mortgagor, 'prior to redemption, and who afterward redeems, acquires title to the premises free from the lien of the mortgage for any unpaid balance. 49 Code, Sec. 4046. lington M. L. Assn., 61-464; Ayers Phelps v. Finn, 45-447. v. Adair County, 61-728; Long v. 4G Clayton v. Ellis, 50-590; see Millet, 63 N. W., 190. Crosby v. Elkader Lodge, 16-399; 4 Bunce v. West, 62-80, and cases Barnes v. Cavanagh, 53-27; Peck- cited, enbaugh v. Cook, 61-477. * Escher v. Simmons, 54-269; 4" Jones v. Hartsock, 42-147; Mrcklewait v. Rains, 58-605; Harms American Buttonhole, etc., v. Bur- v. Palmer, 61-483. 1253, 1254.] EEDEMPTION. 481 A creditor who obtained a judgment against a grantor, who had made a fraudulent conveyance, is not entitled to redeem from execution sale of the property fraudulently conveyed, which is made under a decree obtained by other judgment creditors, subjecting such property to the lien of their judgments. 50 And when a party seek- ing to redeem was one of several plaintiffs at whose suit the property in question was in equity decreed to be subject to their judgments and sold to satisfy the same, he can not redeem. 51 Prior to the change in the statute it was held that the holder of a claim against an estate which had not been allowed by the court was not a cred- itor so as to be entitled to redeem. 52 After a sale of land on foreclosure on a claim of the mortgagee, he can not redeem therefrom. 53 Nor can an assignee of a portion of the mortgaged debt redeem from a sale on foreclosure of another portion. 54 1253. Who is a creditor under the statute. Any creditor whose claim becomes a lien prior to the expira- tion of the time allowed by law for the redemption by creditors, may redeem, and a mortgagee may thus re- deem before or after the debt secured by the mortgage falls due. 55 And a mortgagee wh^se mortgage secures a liability which is only contingent and may never ripen into a cer- tainty is, nevertheless, a creditor and entitled to re- deem. 56 And where a junior judgment creditor pur- chases at an execution sale, in satisfaction of a senior judgment, property on which his judgment is a lien, he may, like any other judgment creditor, redeem the prop- erty from such sale, though he thereby redeems from himself. 57 1254. Of redemption by the holder of a me- 60 Rowland v. Knox, 59-46. 54 Harms v. Palmer, 61-483. Bi Hayden v. Smith, 58-285; see Code, Sec. 4046. Clayton v. Ellis, 50-590. BB Crossen v. White, 19-109. 52 Byer v. Healy, 84-1. 57 Citizens Sav. Bk., etc., v. 53 Todd v. Davy, 60-532, and cases Percival, 61-183. cited. Vol. n31 482 BEDEMPTION. [ 1255. chanic's lien. A mechanic's lien before judgment is not of suck a character as to entitle the holder to redeem. 58 And in proceedings to establish a mechanic's lien upon real property which had been sold under a decree of fore- closure since the claim accrued, where the mortgagor and wife, who had parted with the equity of redemption, were the only parties defendant, it was held that the holder of the mechanic's lien and claim was not entitled to redeem from the foreclosure sale. 59 1255. Of redemption in equity. The right of re- demption by suit in equity in proper cases is not affect- ed by the provisions of the statute determining when re- demption may be made and it has often been held that one holding a junior lien, who is not made a party to the foreclosure of a prior lien, may, by proceedings in equity, be permitted to redeem. 60 But the holder of a junior judgment, who was not made a party to the foreclosure of a prior mortgage, because his judgment was not in- dexed, and said mortgagee had no actual notice of said judgment can not redeem. 61 Where the judgment debt- or in a mortgage foreclosure paid a part of the judgment, but was not credited for it, and the land was sold for the whole judgment, and bid in by the judgment creditor and the judgment debtor did not within the year offer to redeem by paying the balance justly due, it was held he could not invoke the aid of a court of equity. 62 When in an action to redeem from a foreclosure sale of land be- cause of irregularities in the appointment of appraisers, an order was made fixing the time within which plaintiff might redeem, he was not entitled to have brought into court for his use, whether he redeemed or not, a mort- gage for the purchase money held by the defendants from one to whom they had sold after their purchase at the foreclosure sale, and who was not shown to have had BS Code, Sec. 4046. si sterling Mfg. Co. v. Earley, 69- 59 Spink v. McCall, 52-432. 94. so American Buttonhole, etc., v. ez McConkey v. Lamb, 71-636. B. M. L. Assn., 68-327; Jones v. Hartsock, 42-147. 1256, 1257.] EEDEMPTION. 483 any notice of the irregularities complained of. 68 One whose land is wrongfully sold without redemption and for an inadequate price may have such sale set aside in equity. 64 Where a junior mortgagee whose mortgage was recorded, was not made a party to the foreclosure of the senior mortgage, the fact that after the foreclos- ure sale, and before the expiration of the statutory time to redeem therefrom he bought the land at a sale under foreclosure of his own mortgage for the full amount of his judgment will not preclude him from suing in equity to redeem from the sale under the senior mort- gage. 65 1256. What law is applicable to the sale. A sale of real property after the taking effect of the code of 1873, under a judgment rendered prior to that time, must conform to the law in force at the time the judgment was rendered, which gave the debtor the right to elect wheth- er the property should be appraised before the sale, or sold subject to redemption. 66 And where the judgment was rendered after that code took effect upon a debt con- tracted before that time, the sale must be made under the provisions of such code. 67 1257. Of creditors redeeming from each other. Creditors having the right of redemption may redeem from each other within the time heretofore stated. 68 Whenever a senior creditor redeems from a junior cred- itor the latter may in return redeem from the former, and so on, as long as the land is taken from him by virtue of a paramount lien. 69 After the expiration of nine months from the day of sale, the creditors can no longer redeem from each other, except as herein explained, but the debtor may still re- deem at any time within a year from the date of sale. 70 s Hall v. Ellis, 31-86. s Code, Sec. 4047; Seevers v: e* Fitzgerald v. Kelso, 71-731. Wood, 12-295; Phelps v. Finn, 46- es McCormick Harv. Men. Co. v. 447. Llewellyn, 65 N. W., 412. 69 Code, Sec. 4052. . 66 Holland v. Dickerson, 41-367. TO Code, Sec. 4053. " Babcock v. Gurney, 42-154; Fonda v. Clark, 43-300. 484 REDEMPTION. [ 1258, 1259. 1258. Of computing the time of redemption. In computing the time of redemption, the first day, being the day of the sale, should be excluded, and the right of redemption exists until the last moment of the same day of the succeeding year. 71 1259. Of the terms of redemption. The terms of redemption when made by a creditor in all cases will be the reimbursement of the amount bid or paid by the hold- er of the certificate, including all costs, with interest the same as the lien redeemed from bears, on the amount of such bid or payment, from the time thereof, but where a mortgagee whose claim is not yet due is the person from whom the redemption is thus to be made, he shall re- ceive on such mortgage, only the amount of the principal thereby secured with unpaid interest thereon to the time of such redemption. The terms of redemption when made by the title holder will be the payment into the clerk's office of the amount of the certificate and all sums paid by the holder thereof in effecting redemptions, add- ed to the amount of his own lien, or the amount he has credited thereon, if less than the whole, with interest at contract rate on the certificate of sale from its date, and upon sums so paid by way of redemption from date of payment, and upon the amount credited on his own judgment from the time of said credit, in each case in- cluding costs. 72 But when a senior creditor thus re deems from his junior he is required to pay off only the amount of those liens which are paramount to his own with interest and costs appertaining to such liens. 73 The holder of a junior mortgage made defendant in a fore- closure proceeding, may redeem after sale from the hold- er of the senior mortgage, who has bid in the property for less than the mortgage debt by paying the amount bid by such purchaser with interest and costs. He need not pay the whole mortgage debt. 74 But this rule is ap- TiTeucher v. Hiatt, 23-527. "Tuttle v. Dewey, 44-306; Hayes 72 Code, Sees. 4050, 405L v. Thode, 18-51; Iowa County v. 73 Code, Sec. 4048. Beeson, 55-262. 1259.] EEDEMPTION. 485 plicable only to statutory redemptions, not to those made in equity. 75 In redeeming from an execution creditor, who has pur- chased the property at the sale, the debtor need only pay the amount bid by such creditor and any portion of the judgment remaining unsatisfied is not a lien on the prop- erty sold. 76 The owner of a homestead mortgaged for the purchase money can not, by redeeming from a fore- closure sale for a part of the judgment only, hold the land free from the lien of the unsatisfied portion thereof. 77 When one redeems from a sale under a judgment which by mistake was rendered for too small a sum he need only tender the amount for which the property was bid off with interest and costs. 78 There is no distinction be- tween the debtor and creditor as to the- matter of making redemption, and the terms "his own lien" used in the statute refer to the. lien of the holder and not of the re- demptioner. 79 A junior creditor may, in all cases, prevent a redemp- tion by the holder of the paramount lien by paying off that lien, or by leaving with the clerk, beforehand, the amount necessary to do so. 80 And the junior creditor may redeem from a senior judgment creditor. 81 A junior judgment creditor, who purchases and takes an assignment of the certificate of sale from his senior creditor, to whom the land has been sold, will be regard- ed as a redemption creditor within the meaning of the statute, and to entitle a creditor or lien-holder junior to him to redeem the property from such sale, he must pay not only the amount for which it was sold, but also the amount of the other superior judgment liens held by the person thus holding the certificate of sale by assign- ment. 82 A redemption after six and prior to nine months 78 Iowa County v. Beeson, 55-262. 78 Day v. Cole, 44-452. 78 Clayton v. Ellis, 50-590; see 79 Clayton v. Ellis, 50-590. Barnes v. Cavanagh, 53-27; Cros- so Code, Sec. 4049. by v. Elkader Lodge, 16-399. si Code, Sec. 4049. 77 Campbell v. McGinnis, 70-589. 82 Goode v. Cummings, 35-67. 486 KEDEMPTION". [ 1260. of the sale can be made by the parties without the aid of the clerk and when they do what in law is necessary to constitute a redemption the act will be so treated. 83 What acts will amount to an equitable assignment of the certificate. 84 1260. Same. Section 4056 requiring a lien-holder in redeeming to pay the amount necessary to redeem into the clerk's office, applies only to redemptions made after the expiration of nine months from the date of sale, and not to redemptions made within the nine months, which may be made by paying the proper amount directly to the creditor, and taking an assignment of the certificate of sale. 85 The purchaser of a junior judgment, before the formal assignment thereof, and before the expiration of six months from the day of sale, who, intending to re- deem, pays to the purchaser of the land the amount of his claim, and takes an assignment of the certificate of sale, though his redemption may be informal, is still en- titled to be regarded as a purchaser and holder of the certificate; and a judgment creditor whose lien is in- ferior to his, in order to redeem, must pay such holder the amount of this certificate as well as the amount of his judgment. 86 The holder of a junior mortgage who is made a defendant in an action to foreclose a senior one, has the right to redeem after sale by paying the amount bid, with interest, within the time allowed by law, not- withstanding the amount so bid is less than the amount of the mortgage debt. 87 The purchaser of real estate under a judgment may redeem from a prior mortgage be- fore its foreclosure. 88 And a purchaser of mortgaged lands, whose deed is recorded at the time of the begin- ning of the action to foreclose, will not be bound by the foreclosure proceedings unless made a party thereto; but has the right to redeem by paying the mortgaged debt, ss Lamb v. Feeley, 71-742; West ss Goode v. Cummings, 35-67. v. Fitzgerald, 72-306; Lamb v. se Wilson v. Conklin, 22-452; see West, 75-399. Rush v. Mitchell, 71-333. 34 Gilbert v. Husman, 76-241; ST Tuttle v. Dewey, 44-306. Byer v. Healy, 84-1. ss Hammond v. Leavitt, 59-407. 1261.] REDEMPTION. 487 though he is not entitled to a judgment for the possession of the premises. 89 The amount necessary to redeem in an action by a mortgagor who was not made a party to a foreclosure suit from a sale under such foreclosure, must be deter- mined with reference to both the right to rents and the liability to pay for improvements, and while it is the gen- eral rule that such a redemptioner need not pay for per- manent improvements, yet it is held that as against a purchaser in possession in good faith, under the belief that he is the sole owner, with the consent, ex- press or implied, of the junior lien-holder, or when the latter has for a considerable time failed to assert his rights to redeem, he must, if he re- deems, pay for permanent improvements which have been made. 90 When the judgment in a foreclosure proceeding directed the sale of the property and provid- ed that the proceeds of sale should be applied in satis- faction of the judgment and costs, and that any balance should be applied in satisfaction of notes secured by the same mortgage, but not due, and the tract, eighty acres, was offered en masse, and bid in by the plaintiff in exe- cution for more than sufficient to pay the judgment, but he had not paid the amount into court; the defendant, it was held, could not redeem by paying the amount of the judgment only, but that he must pay the full amount bid at the sale. 91 The subject of redemption as applied to the priority of liens in particular cases, is further dis- cussed in the cases below cited. 92 1261. Who obtains the property. Unless the de- fendant redeems within one year the purchaser or the creditor who last redeemed prior to the expiration of the sa Porter v. Kilgore, 32-379. 34; Bacon v. Cotterell, 13 Minn., o Barrett v. Blackmar, 47-565; 194; Roberts v. Fleming, 53 111., American Buttonhole, etc., v. B. M. 196. L. Assn., 68-326; Montgomery v. i Williams v. Dickerson, 66-105. Chadwick, 7-114; Mickles v. Dill- z Gorder v. Lundy, 66-448; Dick- age, 17 N. Y., 80; Green v. Dixon, 9 erman v. Lush, 66-444. Wis., 532; Troost v. Davis, 31 Ind., 488 REDEMPTION. [ 1261. nine months from the date of the sale, will hold the prop- erty absolutely. 93 And in case the land is thus held by a redeeming cred- itor his lien and the claims out of which it arose will be held to be extinguished unless he pursues the following course. 94 If he is unwilling to hold the property and credit the debtor thereon the full amount of his lien, he must state the utmost amount he is willing to credit him with. If the amount paid to the clerk is in excess of the prior bid and liens, he must refund said excess to the party paying the same, and enter each such redemption made by a lien holder upon the sale book, and credit upon the lien, if a judgment in the court of which he is clerk, the full amount thereof, including interest and costs, or such less amount as the lien-holder is willing to credit therein, as shown by the affidavit filed. 95 When a junior judgment creditor redeemed from a sale under a senior judgment, and filed with the clerk within the time re- quired, a statement of the amount he was willing to credit on his judgment, which statement the clerk failed to enter on the sale-book until after ten days from the ex- piration of nine months after the day of sale, such neglect of the clerk did not invalidate the lien of the junior judg- ment. 96 When the debtor has actual notice of the filing of the statement he suffers no prejudice from want of con- structive notice; no particular form of statement is re- quired. It will be sufficient if it indicate clearly the amount he is willing to credit on his judgment. 97 When a national bank holding a second mortgage procured an assign- ment of the certificate of purchase issued under a judicial sale of the property under the first mortgage, and at the expiration of the period of redemption took a sheriff's deed, no entry having been made in the sale-book, it was held the transaction was a purchase, and not a redemp- tion. 98 The omission to file the statement above men- 93 Code, Sec. 4054. Craig v. Alcorn, 46-560. e* Code, Sec. 4055; Lamb v. Fee- ? Craig v. Alcorn, 46-560. ley, 71-742. 8 Streeter v. First Nat'l Bk., etc., es Code, Sec. 4056. 53-177. 1262.] EEDEMPTION. 489 tioned will not prejudice the right of other creditors to redeem, nor defeat the right of the debtor to demand the extinguishment of all claims of the creditor so failing to file his statement." Whether a senior lien-holder may redeem from a junior who has already redeemed from him, quaere. 1 1262. Of the mode of redemption. The mode of redemption by a lien-holder is by paying into the clerk's office the amount necessary to effect the same, computed as heretofore stated, and filing therein his affidavit or that of his agent or attorney, stating as nearly as prac- ticable the nature of his lien and the amount due and unpaid thereon. 2 If he is unwilling to hold the property and credit the debtor thereon the full amount of his lien, he must state the utmost amount he is willing to credit him with. If the amount paid to the clerk is in excess of the prior bid and liens, he must refund the excess to the party paying the same, and enter each such redemp- tion made by a lien-holder upon the sale book, and credit upon the lien, if a judgment in the court of which he is clerk, the full amount thereof, including interest and costs, or such less amount as the lien-holder is will- ing to credit therein as shown by the affidavit filed. 3 Ex- cept as otherwise provided, redemption has the effect of discharging and satisfying the whole debt and lien under which it is made. 4 And further as to the effect of a fail- ure to credit the amount a redemptioner is willing to allow on his claim. 5 The provision as to the whole of the redemptioner's claim being satisfied unless he pursues the course prescribed by the statute applies to redemp- tions made prior to the expiration of the nine months as well as to those made after that time. 6 The clerk, on such payment being made and the affidavit filed, when one is required, must give the person making such re- 99 Goode v. Cummings, 35-67. B Tharp v. Forrest, 76-195; Mont- 1 Phelps v. Finn, 45-447. nelier Savings Bk. v. Arnold, 81- 2 Code, Sec. 4056. 158. 3 Code, Sec. 4056. West v. Fitzgerald, 72-306. * West v. Fitzgerald, 72-306. 490 REDEMPTION. [ 1263, 1264, 1265. demption a receipt for the money, stating the purpose for which it was paid. A redeeming creditor is entitled to an assignment of the certificate issued by the sheriff to the purchaser at the sale. 7 Payment to the clerk by a bank check, if accepted by him, will be good in redemp- tion. 8 1263. Of settling controversies as to right to re- deem or as to the amount to be paid. If any question arises as to the right to redeem, or the amount of any lien, the person claiming such right may deposit the necessary amount therefor with the clerk, accompanied with an affidavit as heretofore stated, and also stating therein the nature of such question or objection, which shall be submitted to the court, or a judge thereof as soon as practicable, upon such notice as it or he may pre- scribe, of the time and place of the hearing of the con- troversy, at which time and place it will be tried upon such evidence and in such a manner as may be pre- scribed, and the proper order made and entered of record in the case in which execution issued and the money so paid will be held by the clerk subject to the order thus made. 9 1264. Of redemption from sale in parcels and of the interests of tenants in common. When property has been sold in parcels, any distinct portion may be re- deemed by itself. 10 In making redemption of a distinct portion of the property sold in parcels, it is necessary to pay the entire amount of the judgment under which the sale was made and which is a lien on the property. One cannot in such a case redeem by paying a propor- tionate amount of the lien. 11 And when the interests of several tenants in common are sold on execution, the undivided portion of any, or either of them, may be sepa- rately redeemed. 12 1265. Of the rights of the purchaser. The pur- chaser of the legal title of land at sheriff's sale takes the 7 Code, Sec. 4058. 10 Code, Sec. 4059. Webb v. Watson, 18-537. n Case v. Fry, 91-132. Code, Sec. 4057. 12 Code, Sec. 4060. 1266, 1267.] EEDEMPTION. 491 land free of any claim or title arising under any unre- corded deed or a mere equity of which he had no actual notice at the time of his purchase and which would be invalid as against an ordinary purchaser, and this is so both at law and in equity; and a judgment creditor pur- chasing at sheriff's sale, as above stated, is a purchaser within the meaning of code section 2925, and in the ab- sence of equitable circumstances is entitled to the same protection as any other bona fide purchaser. 13 But the purchaser of chattels at an execution sale takes such title only as the defendant in execution had at the time of the levy. 14 A tenant in possession of land sold on execution under a lease from the execution de- fendant, has no better right than his lessor and is charged with notice of sale, and can not hold the land after the period of redemption expires for the purpose of reaping a crop. 15 1266. Of assigning the right to redeem. The rights of the defendant in relation to redemption are transferable and the assignee has the same rights with reference to redemption that his assignor had prior to the assignment. 16 And the purchaser of property at a sale under a judgment which is junior to a ^mortgage, may redeem from such mortgage before its foreclosure in the same manner as the debtor might have re- deemed. 17 1267. Of the sheriff's deed. If the defendant or his assignees fail to redeem, the sheriff then in office must, at the end of the year, execute a deed to the person who is entitled to the certificate, or to his assignee, and if the holder of the certificate is dead the deed must be made to his heirs, but the property will be subject to the is Vannice v. Bergen, 16-555; n Rakestraw v. Hamilton, 13- Code, Sec. 2925; Bell v. Evans, 10- 147. 353; Evans v. McGleason, 18-150; is Wheeler v. Kirkendall, 67-612; Gower v. Doheney, 33-36; Hallo- Downard v. Groff, 40-597; Martin v. way v. Plainer, 21-121; Butterfield Knapp, 57-336. v. Walsh, 21-97; Wallace v. Bartle, ie Code, Sec. 4061; Stoddard v. 21-346; Walker v. Eleton, 21-529; Forbes, 13-296; Robertson v. Mo- Jones v. Brandt, 59-332; Curtis v. line, etc., Wagon Co., 88-463. Millard, 14-128. " Hammond v. Leavitt, 59-407. 492 REDEMPTION. [ 1267. payment of the debts of the deceased in the same manner as if acquired during his lifetime. 18 The sheriff in office when a certificate of sale made by his predecessor is pre- sented, is the proper officer to make the deed; it can not be executed by a sheriff whose term of office has ex- pired. 19 As the estate of the debtor is not divested until the execution of the deed, any crops on the premises which are matured do not pass thereby, although they were not matured at the time the purchaser was entitled to his deed ; but crops sown by the tenant after the sale, and which can not be harvested before a deed is due, pass to the purchaser of the land. 20 And a purchaser at a sale is entitled to rent accruing after he receives his deed. 21 Deeds executed by the sheriff at a sale on execu- tion are presumptive evidence of the regularity of all previous proceedings in the case, and are admissible in evidence without preliminary proof, nor need the deed recite the execution, and the description in the deed may cure uncertainties in the levy and return. 22 When the sheriff makes a mistake in the description of the land in a deed, the purchaser, or those claiming under him, may have it corrected in equity. 23 And the sheriff may execute a deed to a person other than the bidder at the sale if authorized so to do by him. 24 A sale under a void judgment will not be validated by recitals in the deed. 25 A sale for costs which have been satisfied under a prior execution is void. 26 If one not entitled to redeem pays money for that purpose and procures an as- signment of the certificate of purchase, he is entitled to a deed. 27 The purchaser is by the deed vested with the ownership of the premises and of the crops then grow- 13 Code, Sec. 4062. 431; Foley v. Kane, 53-64; Hum- is Conger v. Converse, 9-554; phry v. Beeson, 1 G. Gr., 199; Hop- Code, Sec. 4062. ping v. Burnam, 2 G. Gr., 39. 20 Everingham v. Braden, 58-133. 23 Ehelringer v. Moriarty, 10-78. 21 Wheeler v. Kirkendall, 67-612; 24 Ehelringer v. Moriarty, 10-78. Townsend v. Isenberger, 45-670; 25 Cassidy v. Woodward, 77-354. Martis v. Knapp, 57-336. 26 Soukup v. Union Inv. Co., 84- 22 Code, Sec. 4064; Conger v.Con- 448. verse, 9-554; Deere v, M'cConnells, 27 Rush v. Mitchell, 71-333. 15-269; Childs v. McChesney, 20- 1267.] EEDEMPTION. 493 ing thereon and of the right to immediate possession. 28 But the title to matured crops would not pass to the purchaser. 29 The deed will not be held void for uncer- tainty of description in a suit in equity brought by those claiming adversely thereto to quiet the title to the land in them, when it appears that the land in dispute was the land which was, in fact, sold by the sheriff under his writ, although it was defectively described in the deed; nor will such deed be void because executed by a dep- uty, or if issued prior to the expiration of the period of redemption; but, if it is absolute in form when it should be a certificate, it will not defeat the right of redemp- tion. 30 Ordinarily the following form of a deed will be found sufficient: FORM OF SHERIFF'S DEED. This Indenture, made on the day of A. D. 18 , by and between , sheriff of county, State of Iowa, of the first part, and , of the county of , State of , of the second part, witnesseth: That whereas, by virtue of a general (or special) execution directed to the sheriff of county, Iowa, and dated the day of , 18 , and issued out of the clerk's office of the district court of the State of Iowa, in and for county, under the seal thereof upon a judg- ment (or judgment and decree of foreclosure) rendered in said district court on the day of A. D. 18 , in favor of and against for the sum of dollars and cents debt, and dollars and cents costs, the said , sheriff, as afore- said, did, on the day of , A. D. 18 , levy upon the real estate hereinafter described as the property of the said , defend- ant, to satisfy the said execution, amounting to dollars and cents debt, and dollars and cents costs, together with in- terest and all accruing costs. And whereas, the said , sheriff, as aforesaid, after the levy upon the within described real estate, gave four weeks' notice of the time and place of selling the same under said execution, by posting up printed (or written) notices thereof at three public places in said county, one of which was at the court house in , where the last district court was held, and by causing two publications of said notice 28 Stanborough v. Cook, 83-705; 29 Everingham v. Braden, 58-133; Wheeler v. Kirkendall, 67-612; Richards v. Knight, 78-69. Martin v. Knapp, 57-336; Townsend so Hackworth v. Zollars, 30-433; v. Isenberger, 45-670. Olmstead v. Kellogg, 47-460; War- field v. Woodward, 4 G. Gr., 386. 494 BEDEMPTIOST. [ 1267. to be made in the (name of newspaper) a newspaper printed at , in said county, immediately preceding the day of sale. And whereas, the said , as sheriff aforesaid, in pursuance of the notice of sale aforesaid, in conformity to law and by virtue of said execution, did, on the day of A. D. IS , at the hour of o'clock, in the noon of said day, at (here state place of sale) in county, Iowa, expose and offer for sale at public auction the real estate hereinafter described, and did then and there sell the same at public auction to , for the sum of dollars, he being the highest and best bidder therefor. Whereupon the said sheriff, after receiving the said sum of money from said purchaser, made and delivered to him a certificate of sale as directed by law. And whereas, the time allowed by law for redeeming said premises having expired without any redemption thereof having been made. Now, therefore, this indenture witnesseth: That in consideration of the premises and of the said sum of dollars, so bid and paid as aforesaid, the receipt whereof is here acknowledged, I, the said , sheriff as aforesaid, party of the first part, do hereby sell and convey unto the said , party of the second part, his heirs and assigns forever, the following described real estate situated in county, and State of Iowa (being the same real estate hereinbefore referred to), to- wit (here describe it). The intention being to sell and convey hereby all the right, title, interest and estate which the said had in arid to said premises on the - - day of A. D. 18. To have and to hold the said real estate with all the appurtenances thereunto belonging to the said , his heirs and assigns forever, as fully and absolutely as the said party of the first part by virtue of the premises might and could sell and convey the same. In witness whereof, the said party of the first part has hereunto set his hand this - day of A. D. 18. , sheriff of county, Iowa. State of Iowa, ) County. \ ' Be it remembered, that on this day of A. D. 18 , be- fore me (name of officer), a notary public within and for said county, personally appeared , sheriff of county, Iowa, personally to me known to be the identical person whose name is subscribed to the foregoing deed as grantor, and acknowledged the execution thereof to be his voluntary act and deed as said sheriff for the purposes therein men- tioned. Witness my hand and seal the day and year last above written. [Seal.] , notary public, in and for county, Iowa. If the equity of redemption only has been sold, then the deed may be in the following form : This indenture made the A. D. 18, by and between sheriff of county, Iowa, of the first part, and , of the county 1267.] EEDEMPTION. 495 of , in the State of Iowa, of the second part, witnesseth, that whereas by virtue of the general execution directed to the sheriff of county, Iowa, dated the day of , 18 , and issued out of the clerk's office of the district court of the State of Iowa, in and for county, under the seal of said court, upon a judgment rendered in said district court on the day of , 18 , in favor of , and against , for the sum of dollars and cents debt, and dollars and cents costs, the said sheriff, as aforesaid, did on the day of '-, 18 , levy upon the real estate hereinafter described, including the right of possession, and the right and equity of redemption of the said in and to said lands (existing under a sale of said lands on the day of , 18 , by virtue of an execution against said and in favor of - , issued out of the office of the clerk of the district court of the State of Iowa, on a judgment rendered in said court, on the day of ) ; 18 , as the property of the said defendant, to satisfy the said exe- cution, amounting to dollars and cents debt, and dollars and cents costs, together with interest and accruing costs. And whereas the said , sheriff, as aforesaid, gave four weeks' no- tice of the time and place of selling said real estate under said execution by posting up printed (or written) notices thereof, at three public places in said county, one of which was at the court house in , where the last district court was held, and by causing two publications of said notice to be made in the (name of newspaper), a newspaper printed at , in said county, immediately preceding the date of sale, and whereas the said , as sheriff aforesaid, in pursuance of the notice of sale aforesaid, in conformity to law, and by virtue of said execution, did on the day of , 18 , at the hour of o'clock in the noon of said day, at the court house in , in said county, expose and offer for sale at public auction the real estate* hereinafter described, and did then and there sell the same at public auction, to one , without redemption, for the sum of dollars, he being the highest and best bidder therefor; now, therefore, this indenture witnesseth that in consideration of the premises, and of the said sum of dollars so bid and paid, as aforesaid, the receipt whereof is hereby acknowledged, I, the said , sheriff, as aforesaid, party of the first part, do hereby sell and convey unto the said , party of the second part, his heirs and assigns forever, the following described real estate situated in the county of and the State of Iowa, (being the same real estate hereinbefore described, and here describe land, and then follow with the words, "including the right of possession and right and equity of redemption of ," etc., as in the prior part of this form), to have and to hold the said real estate, with all the appurtenances thereunto belonging to the said , his heirs and assigns forever, as fully and absolutely as the said party of the first part, by virtue of the premises, might and could sell and convey the same. In witness whereof, the said party of the first part has hereunto set Ms hand this day of , 18. , sheriff of county, Iowa. (Add acknowledgment of previous form.) 496 REDEMPTION. [ 1268, 1269. And if the sale is of a leasehold interest in land these forms can be readily adapted for use in such a case. 1268. When the deed is constructive notice. The purchaser of real estate on execution which is sub- ject to redemption need not place any evidence of his purchase on record until sixty days after the expiration of the full time for redemption, as up to that time the publicity of the proceedings is constructive notice of the rights of the purchaser. 31 The provision requiring no- tice applies only as against purchasers from the judg- ment defendant. 32 But one who purchases after the ex- piration of one year and sixty days, having actual notice, or one who purchases with a fraudulent intent to defeat the title of the purchaser at the execution sale, will not be protected. 33 But the purchaser in good faith, with- out notice, after the expiration of one year and sixty days will hold the property against the purchaser at the execution sale who has neglected to put his deed on record. 34 1269. Of the sheriffs return. The sheriff must make a full and complete return on every execution which comes into his hands of his doings thereon, and file the same with the clerk of the court out of which the writ issued, within seventy days from the date of writ. But, as has been seen, if the levy has been made within the seventy days, the sale may be completed after that time, and in such cases, as also in cases where the property has been taken from him and his right to its possession is in litigation, he is not required to make his return within the seventy days. Every act of the officer done under the execution must be set out in his return; if he has summoned garnishees or taken their answers, si Code, Sec. 4063; Churchill v. s* Harrison v. Kramer, 3-543; Morse, 23-229; Hultz v. Zollars, 39- Churchill v. Morse, 23-229; Hultz 589; Wood v. Young, 38-102; Gard- v. Zollars, 39-589; Gardner v. ner v. Jaques, 42-577. Jaques, 42-577; Lindley v. Mays, 32 Lindley v. Mays, 66-265. 66-265; see McGinnis v. Edjell, 39- 33 Harrison v. Kramer, 3-543; 419; Cushing v. Edwards, 68-145. Walker v. Schreiber, 47-529; Rush v. Mitchell, 71-333. 1269.] REDEMPTION. 497 or if the property has been taken from him, or if he has been enjoined from selling it, these and other like facts, so far as they exist, should be set out in the return. Generally the sheriff's return should be in the follow- ing form: FORM OF SHERIFF'S RETURN ON EXECUTION. I, sheriff of county, Iowa, hereby certify and return that I received the within (or annexed) writ of execution, on the day of A. D. 18 , at o'clock in the noon of said day; that by virtue thereoT, I did, on the day of A. D. 18 , (or on the same day) levy upon the property of said , the defendant herein, described as follows (here describe the property, each tract of land or each article of personal property), and after making said levy I gave four (or three weeks in case of personal property) weeks' notice of the time and place of selling said (real) property, by posting up writ- ten (or printed) notices thereof, in three public places within my coun- ty, one of which was at the place where the last district court was held, and by causing two publications of said notice to be made in the (name of newspaper), a newspaper printed at , in said county of , immediately before said sale; that on the day of A. D. 18 , (twenty days before the day of sale), I served the said , who was in the actual possession of said real property, with written notice, stating that I had levied on said real property by virtue of this execu- tion, and mentioning the time and place of said sale, a copy of which is attached hereto marked exhibit "A," and made part of this return. (If the property levied on is personal then say) I further certify and return that for the purpose of ascertaining the value of said property, on the day of A. D. 18 , I caused A B and C D, two dis- interested householders of the neighborhood, to be selected, the former by said defendant and the latter by plaintiff (or as the case may be) as appraisers thereof, who then and there made and delivered to me an ap- praisement of said (personal) property, in writing, signed and sworn to by them, by which they appraised said property (here state the amount of the appraisement on each article of personal property, or by reference say) as shown by said written appraisement, which is hereto annexed marked exhibit "B," and made a part of this return. And I further certify and return, that in pursuance of said notice, I did on the day of , 18 , at o'clock in the noon of said day, that being the time appointed for said sale, at (here state place of sale) expose to sale at public auction the property aforesaid, to the highest and best bidder, for cash, and then and there sold (the premises or a part thereof, as the case may be; or where personal property is sold, say the goods and chattels to the persons respectively named in schedule "C" hereto annexed and made a part of this return, for the prices therein shown, they being the highest and best bidders therefor) to for the sum of dollars, he being the highest and best bidder therefor Vol. 1132 498 EEDEMPTION. [ 1269. (if the property Is personal and does not sell for two-thirds of the ap- praised value, the return should show that the property was offered for sale at public auction but could not be sold for two-thirds of its value or was sold for one-half the value, as the case may be), who then and there paid to me the said sum of dollars, so bid by him; whereupon i executed to the said a certificate of purchase in due form of law of the said sale, and I return said execution satisfied (or unsatisfied, as the case may be) with the sum of dollars made thereon, less dollars, sheriff's costs on execution retained by me. (See statement in full annexed marked exhibit "D." This statement will be found follow- ing the next form.) , sheriff of county, Iowa. If the right of possession and equity of redemption only has been sold, the return should be in the following form: FORM OF SHERIFF'S RETURN ON EXECUTION. I, , sheriff of county, Iowa, hereby certify and return, that I received the annexed execution on the day of , 18 , at o'clock in the noon; that by virtue thereof, I did, on the same day (or on the day of , 18 ), levy upon the property of said defendant , therein described, as follows, to-wit (here de- scribe the real estate and follow "including the right of possession and right and equity of redemption of the said , existing under a sale of said real estate on the day of , 18 , by virtue of an execution against said , and in favor of , issued out of the office of the clerk of the district court of county, Iowa, on a judgment rendered in said court, on the day of , 18 , in favor of , and against said "). And after making said levy I gave four weeks' notice of the time and place of selling said real prop- erty, by posting up printed notices thereof in three public places within my county, one of which was at the place where the last district court was held, and by causing two publications of said notice to be made in the (name of newspaper), a newspaper printed at , in said coun- ty of , immediately before said sale; that on the day of , 18 , twenty days before said sale, I served , who was in actual possession of said property, with written notice stating that I had levied on said real property, including the right of possession, and the right and equity of redemption, as aforesaid, by virtue of this ex- ecution, and mentioning the time and place of said sale, a copy of which is attached hereto marked exhibit "A," and made a part of this return; and I further certify and return, that in pursuance of said notice, I did, on the day of , 18, at o'clock in the noon of said day, that being the time appointed for said sale, at the front door of the court house, in , Iowa, expose to sale at public auction, as by law required, the property aforesaid (and there being no bidders, I then adjourned said sale for three days, when for like cause I again 1269.] REDEMPTION. 499 adjourned said sale for three days till the - day of - , 18 ), when I offered the said property at public outcry in parcels as by law required, to the highest and best bidder, for cash, (if there are no bids for the property in parcels, then the return should state) but receiving no bids for the same in parcels, I then offered the said property en masse, and I then and there sold (here describe land and follow as above, "including, etc.") without redemption, to - , for the sum of dollars, he being the highest and best bidder therefor, who then and there paid me the sum of - dollars, bid by him, whereupon L executed to the said - a deed in due form of law for the said real estate, and the right of possession and the equity of redemption therein, and I return this execution satisfied (or unsatisfied, as the case may be), with the sum of - dollars, made thereon, less - dollars, sher- iff's costs of execution retained by me. (See statement in full annexed marked exhibit "D.") - , sheriff of -- county, Iowa. The exhibits referred to in the return on execution should be properly marked and attached to the return and made a part of it. The statement referred to in the forms above given may be as follows: STATEMENT IN FULLr "D." Amount of judgment ......... 18 Interest at - per centum to . . 18 Court costs Sheriff's costs Amount due ................. 18 ........................ Amount paid ................ 18 ....... I- Balance due after 1st payment ............ .. .................. $ Interest to ................... 18 ........................... Amount due ................. 18 ........................... Amount paid ................ 18 ........................... I- Balance due after 2d payment .............................. $ Interest to ................... 18 ........................... Amount due on execution ---- 188 Amount bid by 500 BEDEMPTION. [ 1270. SHERIFF'S FEES IN FULL. DISPOSAL OF PROCEEDS. Service $ $ Sheriff's fees retained. Posting notices Court costs paid to clerk. Mileage Judgment paid to Notice of levy , Notice of sale Publication Notice to choose appraisers. | Total amount received. Notifying appraisers Appraisal day's sale adjournment Certificate . Sheriff's deed Commission Total $ , sheriff of county, Iowa. 1270. Of damages for injury to property, etc. The purchaser of real estate sold on execution, or any person who has succeeded to his interest, may, after his estate becomes absolute, recover damages for any injury to the property committed after the sale, and before pos- session is delivered under the deed. 35 5 Code, Sec. 4065; Miller v. Bridge and Terminal R. Co., 67 N. Ayres, 59-424; Flickinger v. Omaha W., 372. CHAPTER LXXIX. OF REVIVOR OF JUDGMENTS. Seo. 1271. When judgments will be revived. 1272. Of the sheriff's duty. 1273. Of the affidavit. 1274. Of execution against surviving defendants. 1275. When execution may be quashed. 1276. Of proceedings when all the defendants are dead. Section 1271. When judgment will be revived. The death of any or all of the joint owners of a judgment will not prevent an execution being issued thereon, but on such execution the clerk must indorse the fact of the death of those who are dead, and if all are dead, the names of their personal representatives, if the judgment passed to the personal representatives; or the names of the survivor's heirs, if the judgment was for real prop- erty. 1 And a levy of an execution after the death of the judgment plaintiff is invalid without such indorsement on the execution and a sale thereunder can be enjoined. 2 So, when an action is brought by mistake in the name of a deceased person, and judgment is rendered, and a sale had thereon, the proceedings are void. 3 A judgment against a decedent may be revived against his admin- istrator, 4 but not by the creditors suing the heirs. 6 For- merly, judgments were revived by suing out a writ of scire facias. 6 1272. Of the sheriffs duty. The sheriff, in act- ing on an execution indorsed as above provided, must proceed as if the surviving plaintiff or plaintiffs, or the 1 Code, Sec. 4067. Daniels v. Smith, 58-577. 2 Meek v. Bunker, 33-169. Bridgman v. Miller, 50-392. s White v. Secor, 58-533. Von Puhl v. Rucker, 6-187; * Carnes v. Crandall, 10-377; see Vredenburgh v. Snyder, 6-39. 501 502 EEVIVOE OF JUDGMENTS. [ 1273-1276. personal representatives or heirs, were the only owners of the judgment upon which it was issued, and bonds taken by him must be for their benefit. 7 1273. Of the affidavit. Before making the in- dorsements above stated, an affidavit must be filed with the clerk by one of the owners of said judgment, or per- sonal representatives, or heirs, or their attorney, of the death of such owners as are dead, and that the persons named as such are the personal representatives or heirs; and in case of personal representatives, they must also file with the clerk a certificate of their qualification, ac- cording to the laws of this State, unless their appoint- ment is by the court from which the execution issues, in which case the record of such appointment will be suf- ficient evidence of the fact. 8 1274. Of executions against surviving defend- ants. When a part of the joint debtors are dead exe- cution may issue against the survivors and their prop- erty. 9 But execution can not be issued against a de- ceased judgment debtor even though the judgment be rendered in an attachment proceeding and a sale of land on such an execution is void. 10 1275. When execution may be quashed. When the names of the personal representatives are not prop- erly stated by the clerk in his indorsement on the execu- tion, any debtor in such judgment may move to quash the execution for that reason, and during the vacation of the court he may obtain an injunction on making it ap- pear that the persons named are not entitled to the judg- ment on which the execution was issued. 11 1276. Of proceedings when all the defendants are dead. If all the defendants are dead, proceedings must be instituted to bring in their personal representa- tives; and for that purpose plaintiff must file his peti- T Code, Sec. 4068. Boyle v. Maroney, 73-70; Bull v. s Code, Sec. 4069. Gilbert, 79-547. Code, Sec. 4071. Code, Sec. 4070; Meek v. Bun- 10 Welch v. Battern, 47-147; ker, 33-169. 1276.] KEVIVOR OF JUDGMENTS. 503 tion, properly verified, and must set forth therein the rendition of the judgment, that it is unpaid, the amount due thereon, and pray for an execution to issue against the administrators of the deceased. It may be in the following form: FORM OF PETITION TO REVIVE JUDGMENT AGAINST AN AD- MINISTRAT'OR. Title, ) Venue. V Plaintiff states that on the day of , 18 , In an action pending in this court, wherein he was plaintiff and was defend- ant, the plaintiff recovered a judgment against said defendant for the sum of dollars and costs of suit, taxed at dollars; that said judgment has not, to the plaintiff's knowledge, information or belief, been paid or satisfied, and that there is now due thereon the sum of dollars, debt and interest, and dollars, costs; that the said died intestate on or about the day of , 18 , and that the said defendant is administrator of the estate of said decedent. Wherefore, he demands judgment that execution may issue on said judgment against the goods and chattels of said deceased in the hands of his said administrator and against the lands and tenements of said estate, to satisfy said judgment, with interest and costs. , attorney for plaintiff. (Add verification.) CHAPTER LXXX. OF SHERIFF'S SALE. Sec. 1277. Of notice of the sale. 1278. Of selling without notice. 1279. Of the time and manner of sale. 1280. Of postponing the sale. 1281. Of the surplus arising from the sale. 1282. Of proceedings when property is unsold, etc. 1283. Effect of sale without notice to the defendant. 1284. Of plan of sale by defendant. 1285. When sales will be set aside. 1286. When sales will not be set aside. 1287. Sales may be set aside when purchaser falls to pay. 1288. Sales set aside when defendant has no title, etc. 1289. Of the rule of caveat emptor. 1290. Of the disposition of money and choses in action. 1291. Of satisfying judgments against an executor or decedent. 1292. Of setting off mutual judgments. 1293. Of sale of leasehold interest, etc. 1294. Of the appraisement of personal property. 1295. Of the sheriff's return. 1296. Of the rights of the purchaser, and who may purchase. 1297. Of the return of the purchase money Canceling satisfaction, etc. Section 1277. Of notice of the sale. The sheriff must give four weeks' notice of the time and place of sell- ing real property, and three weeks' notice in case of the sale of personal property. 1 Notice must be given by posting in at least three public places in the county, one of which must be at the place where the last district court was held, and in addition to the posted notices, in case of sale of real estate, or where personal property to the amount of two hundred dollars or upward is to be sold, there must be two weekly publications of the notice iCode, Sec. 4023. 504 1278, 1279.] SHERIFF'S SALE. 505 in some daily or weekly newspaper printed in the county, 2 to be selected by the party causing the notice to be given, and the compensation for such publication will be the same as is provided by law for legal notices. But the proprietor of a newspaper can not, by man- damus, compel the publication of a notice in his paper. 3 1278. Of selling without notice. If the sheriff sell without giving the notice prescribed, he will forfeit one hundred dollars to the defendant in execution, and will be liable for all actual damages sustained by either party; but the validity of the sale will not be affected by reason of the sheriff's failing to comply with the law in this respect. 4 The purchaser at a judicial sale is author- ized in assuming that the judgment and levy are regu- lar; and other irregularities will not, in the absence of fraud, affect the title acquired by an innocent pur- chaser. 5 The statute requiring the notice of the sale is directory. 6 If the officer sell without notice, and the property brings a sum equal to its value, and the pro- ceeds of the sale are applied on the execution and costs, it would seem that the plaintiff sustained no actual dam- ages. 7 The penalty provided by statute can only be re- covered when actual damages are sustained. 8 1279. Of the time and manner of sale. The sale must be at public auction, between the hours of nine o'clock in the forenoon and four o'clock in the afternoon, and the hour of the commencement of the sale must be fixed in the notice. 9 The sheriff, for many purposes, is the agent of both parties, and he is invested, subject to the statute, with a sound discretion as to the time, place and manner of sale. 10 Improper conduct of the sheriff is not alone sufficient to set aside the sale when it is not 2 Code, Sec. 4024. Hopping v. Burnham, 2 G. Gr., 39, s Welch v. Board of Supervisors, Cooley v. Wilson, 42-425. 23-199. TCoffey v. Wilson, 65-270; En- 4 Code, Sec. 4027. field v. Blyler, 67-295. s Cooley v. Wilson, 42-425; see * Same as No. 7. Cavender v. Heirs of Smith, 1-306; Code, Sec. 4028; Swortzell v. Shaffer v. Bolander, 4 G. Gr., 201; Martin, 16-519. Burton v. Emerson, 4 G. Gr., 393; 10 Swortzell v. Martin, 16-519. 506 SHERIFF'S SALE. [ 1280. shown that the purchaser was connected with such con- duct. 11 And it will be presumed, in the absence of evi- dence to the contrary, that the sale was made as pro- vided by law. 12 The notice of sale may be in the follow- ing form: FORM OP NOTICE OF SHERIFF'S SALE. Notice Is hereby given that by virtue of a general (or special) execu- tion directed to me from the clerk of the district court of county, Iowa, on a judgment rendered in said court on the day of , 18 , in favor of , as plaintiff, and against (here insert names of all the defendants), as defendants, for the sum of dollars and costs, taxed at dollars and accruing costs, I have levied upon the following described real estate (or personal property), as the property of the said defendant (naming him), to satisfy said execution, to-wit (here describe the property fully). And I will proceed to sell said prop- erty, or so much thereof as may be necessary to satisfy said execution, with costs, and accruing costs (if real estate, say subject to redemption), at public auction, to the highest and best bidder, for cash in hand, on the day of , 18 , in front of the court house in , in county, Iowa, at the hour of o'clock . M., of said day, when and where due attendance will be given by the undersigned. Dated the day of , 18. , sheriff of county, Iowa. -, attorney for plaintiff. 1280. Of postponing the sale. When there are no bidders, or when the amount offered is grossly inade- quate, or when, from any cause, the sale is prevented from taking place on the day fixed, or the parties so agree, the sheriff may postpone the sale for not more than three days without giving any further notice of sale; which postponement must be publicly announced at the time the sale was to have been made, but not more than two such adjournments can be made, except by agreement of parties in writing and made a part of the return upon the execution. 13 The postponement of the sale is a matter largely in the discretion of the sheriff. 14 The fact that there was 11 Same as No. 10. " Code, Sec. 4029. 12 Cole v. Porter, 4 G. Gr., 510. Swortzell v. Martin, 16-519. 1281.] SHERIFF'S SALE. 50? one adjournment more than the statute authorized, and that the time was extended beyond a period fixed by law, is an irregularity which can only be taken advantage of when prejudice is shown. 15 But the adjournment of a sale by the plaintiff's attorney is a gross irregularity, and such adjourned sale is void. 16 And when there are no bidders, or the amount bid is grossly inadequate, the sheriff, in the exercise of his discretion, should ordinar- ily postpone the sale, especially if the debtor so requests, and if he does not postpone it, it may be set aside on proper application, made in due time. 17 A postpone- ment of a sale by agreement of parties, or at the instance and for the benefit of the defendant in execution, will not render the sale afterward made invalid as between the parties. 18 If the sheriff postpones the day of sale, such action must be taken on the day set for the sale, unless the parties otherwise agree. 10 1281. Of the surplus arising from the sale. When the property sells for more than the amount re- quired to be collected, the overplus must be paid to the debtor, unless the sheriff has another execution in his hands, on which the overplus may be rightfully applied, or unless there are liens upon the property which* ought to be paid therefrom, and the holders thereof make claim to such surplus and demand application thereon, in which case the officer must pay the same into the hands of the clerk of the district court, and it will be applied as the court may order. 20 While the surplus moneys arising from a sale of lands on mortgage foreclosure, in the sheriff's hands or under the control of the court, be- long to subsequent lien-holders in the order of their pri- ority, yet, when the execution on which sale is made fails to direct the disposition of the surplus, and the sheriff, acting in good faith and without knowledge of such is Reese v. Dobbins," 51-282. " Long v. Valleau, 66 N. W., 195. ie Wolf v. Van Meter, 27-348. 20 Code, Sec. 4030; Payne v. Bill- IT Same as No. 14. lingham, 10-360; Downard v. Cren- is Cornell v. Ham, 4 G. Gr.. 455; shaw, 49-296. Payne v. Billingham, 10-360. 508 SHEBIFF'S SALE. [ 1282. liens, applies the money on other executions in his hands against the mortgagor, he is not liable therefor. 21 1282. Of proceedings when property is unsold, etc. If the property levied on sells for less than is re- quired to satisfy the execution the judgment holder may order out another execution which must be credited with the amount of the previous sale, the proceedings of the sheriff on the second execution will be the same as on the first one. 22 When the property is unsold for want of bidders, and subject to the provisions of code, section 4041, the levy still holds good, and if there be sufficient time it may be again advertised and sold under the same execution, or the execution may be returned and one is- sued commanding the officer to sell the property, de- scribing it, previously levied on, to which a clause may be added that if such property does not produce a sum sufficient to satisfy such execution the officer shall pro- ceed to make an additional levy on which he must pro- ceed as on other executions, or the plaintiff may, in writ- ing, filed with the clerk, abandon such levy upon paying the costs thereof, in which case execution may issue with the same effect as if none had ever been issued. 23 But such second levy can not be made until the first is dis- posed of. 24 A sale under an execution which has ex- pired is valid if the levy was made Avhile the execution was in force. 25 This second execution for the sale of property levied on under prior writ is in the nature of a venditioni exponas, and it may be in the following form: FORM OP VENDITIONI EXPONAS. The State of Iowa. To the sheriff of county, greeting: Whereas by our writ of execution bearing date the day of , 18 , issued upon a certain judgment rendered in the district court of county, Iowa, at the term, 18 , thereof, in favor of and against for the sum of dollars damages and 21 Polk County v. Sypher, 17-358. Stein v. Chambless, 18-474; Childs 22 Code, Sec. 4031. v. McChesney, 20-431; Thorington 23 Code, Sec. 4042. v. Allen, 21-291; Moomey v. Maas, 2* Downard v. Crenshaw, 49-296. 22-380. as Butterfield v. Walsh, 21-97; 1283.] SHERIFF'S SALE. 509 dollars costs, you were commanded that of the goods and chat- tels, lands and tenements, of the said subject to execution you cause to be made the said sums of money with interest and all legally accruing costs, and that you have said moneys before our said court within seventy days from the date of said writ with' the return of your doings thereon; and whereas you have returned, that by virtue of said writ to you directed, you have levied upon and taken in execution certain real estate (or goods and chattels, describing them) of the said which remains in your hands unsold for the want of bidders, now, therefore, you are hereby commanded that you expose the said real estate (or goods and chattels) to sale to satisfy said execution with in- terest and costs, together with all legal costs made by virtue of this writ, and have said moneys in our said court within seventy days from the date hereof (to which the following may be added as provided by statute: "and if such property does not upon the sale thereof under this writ produce a sum of money sufficient to satisfy this execution, you are hereby further commanded to make of the goods and chattels, lands and tenements of the said a sum sufficient to satisfy said balance with interest and accruing costs and have the same," etc.) as the law requires, together with this writ, with a return thereon of your .doings under the same. Witness , clerk of said court, with the seal thereof hereto affixed this day of , 18 . [Seal.] clerk, etc. 1283. Effect of sale without notice to the defend- ant. When the debtor is in actual personal occupation, and possession of the lands levied on, the sheriff ^having the writ must, at least twenty days previous to the sale, serve him with written notice, stating that the execution has been levied on the land, and also stating the time and place of sale, and if a sale is made without giving this notice, it will be set aside on motion made at the same, or the next term of the court after such sale. 26 And this provision of the statute is applicable to sales under special as well as under general executions. 27 But this notice required to be served on the defendant, need not be given him when the land is in the possession and under the control of an agent. 28 Nor when the property is occupied by tenants. 29 And it will be presumed the 28 Code, Sec. 4025; Jensen v. 2? Jensen v. Woodbury, 16-516; Woodbury, 16-516; Fleming v. Fleming v. Maddox, 30-239. Maddox, 30-239; Babcock v. Gur- zs Bennet v. Burton, 44-550. ney, 42-154; Bennet v. Burton, 44- a Babcock v. Gurney, 42-154. 550. 510 SHERIFF'S SALE. [ 1284. proper notice was given unless the contrary appear. 30 Such notice may be in the following form: FORM OF NOTICE BY SHERIFF TO DEFENDANT IN POSSESSIONS!, OF LEVY AND TIME OF SALE. State of Iowa, \ County. ' S3> To : You are hereby notified that by virtue of an execution to me directed, issued out of the clerk's office of the district court of the State of Iowa in and for county, upon a judgment rendered in said court in favor of and against for the sum of dollars debt and dollars costs, I have levied upon the following real estate, to-wit (here describe the land), of which you are in actual occupation and possession. And that on the day of , 18 , at the front door of the court house in said county, at o'clock, . m., of said day I will offer the same for sale to the highest bidder at public auction to satisfy said execution with all legally accruing costs. Dated this day of , 18. , sheriff of county, Iowa. This notice should have indorsed on it the return of the officer serving it, thus: FORM OF RETURN OF SERVICE OF NOTICE OF LEVY AND TIME OF SALE. I hereby certify, that the above notice was served upon , who was in actual possession of the above described real estate on the day of , 18 , sheriff of county, Iowa. (This form may be on the same sheet following the notice.) 1284. Of plan of sale by defendant. At any time before nine o'clock in the forenoon of the day of sale, the debtor may deliver to the sheriff a plan of division of the land levied on, subscribed by him. And in that case the officer must sell according to said plan, so much of the land as may be necessary to satisfy the debt and costs and no more. If no such plan is furnished, the officer may sell without any division. 31 The general execution laws apply to all sales whether made under general or 30 Coriell v. Doolittle, 2 G. Gr., si Code, Sec. 4032. 385. 1283.] SHERIFF'S SALE. 511 special executions. 32 The intention of this provision of the law is to secure sales in separate tracts as the de- fendant may direct If, however, the lands cannot be sold in such separate tracts for want of bidders, they may afterwards be offered and sold en masse. 83 But the law relating to selling according to a plan of division furnished by defendant has been supposed to have no application to sales on special execution. 34 But recently it has been held otherwise. 35 1285. When sales will be set aside. When the execution covers different tracts of land, or a single tract susceptible of being advantageously divided, a sale of the same in gross is irregular, and will be set aside on motion, by proceedings in equity for that purpose. 36 But it seems it must be shown that the sale en masse worked an injury to the defendant before it will be set aside. 37 A sale to the plaintiff in execution for an inadequate price of a large number of city lots en masse and which were mostly separate from each other, is, at least as to lots still held by the purchaser, voidable, and may be set aside by an action for that purpose by the execution defendant; but such sale will be held valid as to the lots conveyed by the purchaser at sheriff's sale, to* third parties, in good faith, and who have improved them, after the lapse of several years. 38 When the officer's re- turn fails to show that lots were separately sold, the presumption is that he did his duty and sold them sepa- rately. 39 It is doubtful whether the fact two lots were sold together for a gross sum, can, after the period of re- demption has expired, and a sheriff's deed been executed and delivered, be made available to defeat the sale to a third party. 40 If, however, parcels or tracts are first 32 Same as No. 27, Sec. 1283. Love v. Cherry, 24-204; King v. S3 Connecticut Mut. L. Ins. Co. Tharp, 26-283. V. Brown, 81-42. 37 Cunningham v. Felker, 26-117; s* Malone v. Fortune, 14-417. Wallace v. Berker, 25-456. ss Taylor v. Trulock, 59-558. 88 Williams v. Allison, 33-278. se White v. Watts, 18-75; Lay v. sa Love v. Cherry, 24-204; Eggers Gibbons, 14-377; Boyd v. Ellis, 11- v. Redwood, 50-289. 97; Bradford v. Limpus, 13-424; *o Love v. Cherry, 24-204; see 512 SHEBIFF'S SALE. [ 1286. offered separately and not sold for want of bidders they may then be offered and sold en masse. 41 And a sale will be set aside where by reason of a mistake or misun- derstanding between the officer and one desiring to bid a higher bid than that on which the property was sold on was not recognized by the officer. 42 One holding two judgment liens on real estate who sells it under the junior lien without fraud or misrepresentation is not estopped from thereafter enforcing as against the pur- chaser of the property the senior lien held by him. 43 If the price is inadequate and the sale is without redemp- tion, the sale should be set aside, 44 and so it should in case only a portion of the land subject to the lien was sold by reason of a technical defect in describing the premises. 45 Sales will be set aside for gross inadequacy of price coupled with other circumstances tending to prove fraud, and where separate parcels are sold in gross, and when a sale is made on a second execution be- fore the return of the first. 46 A combination between the purchaser at the sale and other bidders to prevent com- petition, will vitiate the sale. 47 And sales will, in some cases, be set aside for fraud practiced by the officer conducting the sale, or by a pur- chaser thereat. 48 So sales will be set aside where the levy is excessive. 49 And where there is a mistake of law and fact growing out of representations as to the appli- cation of the proceeds. 50 1286. When sales will not be set aside. A sher- Whitney v. Armstrong, 32-9; Hill der v. Smith's Heirs, 1-306; Will- v. Baker, 32-303. iams v. Allison, 33-278; Swortzell *i Lamb v. McConkey, 76-47; v. Martin, 16-515; Miller v. Col- Connecticut Mut. L. Ins. Co. v. ville, 21-135; Twogood v. Stephens, Brown, 81-42. 19-405; Sioux City, etc., Land Co. 42 Cornoy v. Wetmore, 70 N. W., v. Walker, 78-476; Lehner v. Loom- 178. is, 83-416. 43 Matless v. Sundin, 62 N. W., 4? Fleming's Heirs v. Hutchin 662. son, 36-519. 44 Fitzgerald v. Kelso, 71-731. ** Swortzell v. Martin, 16-513, 45 Harrington v. Fidelity Loan & Fleming's Heirs v. Hutchinson, Trust Co., 91-703. 36-515; Cooper v. French, 52-531; 46Wood v. Young, 38-102; Merrit Wallace v. Berger, 25-456. v. Grover, 57-493; Boyd v. Ellis, 11- 49 Cook v. Jenkins, 30-452. 97; King v. Tharp, 26-283; Caven- eo Bay v. Harnett, 58-344. 1286.] SHERIFF'S SALE. 513 iff's sale will not be set aside on motion when the pur- chaser, who was not a party to the execution, has not been made a party to and received notice of the motion. 51 Nor will a sale be vitiated by the fact that several tracts were sold en masse, if they were first offered separately and no bids received therefor. 52 When a tract embrac- ing several acres was covered by a mortgage and after- ward divided into town lots by the owner of the fee, and was sold as a whole and not in parcels, it was held that the sale was not invalid, especially as it was not claimed that the whole tract was worth more than the amount of the debt 53 Nor will a sale be set aside for inadequacy of price only, 54 as the law presumes that the sale was regularly conducted in accordance with the require- ments of the statute. 55 Nor because of an omission to plat the homestead when the sheriff serves a notice on the owner reserving a specified tract as a homestead. 56 Nor because of a misnomer of the plaintiff in the title of the case in execution when the name and character of the action are correctly stated in the body thereof, nor by reason of defects in the notice. 57 Irregularities in the manner of making the sale which do not affect the power of the officer to make it will not render it void. 58 % And when the proceedings on a sheriff's sale are with the assent of the judgment debtor, he can not afterward be heard to object to their regularity. And he is estopped from so objecting when he has slept on his rights. 59 And siOsborn v. Cloud, 21-238; Shaffer v. Bolander, 4 G. Gr., 201; Wright v. LeClaire, 3-221; Lyster Cooley v. Wilson, 42-425; Cavender v. Brewer, 13-461; Polk County v. v. Smith's Heirs, 1-306; Hill v. Sypher, 17-358. Baker, 32-302; Davis v. Spaulding, 52 Hill v. Baker, 32-302; Burmei- 36-610; Coriell v. Ham, 4 G. Gr., ster v. Dewey, 27-468; see Foley v. 455; Olmstead v. Kellogg, 47-460, Kane, 53-64; Lamb v. McConkey, Cole v. Porter, 4 G. Gr., 510. 76-47. 5G Smith v. De Kock, 81-535. ss Street v. Beal, 16-68; see Wai- 5? Griffith v. Milwaukee Harv. lace v. Berger, 25-456. Co., 92-634. s* Hill v. Baker, 32-303; Wallace ss Burmeister v. Dewey, 27-468; v. Berger, 25-456; see Shine v. Hill, Hill v. Baker, 32-302; Davis v. 23-264; Griffith v. Milwaukee Harv. Spaulding, 36-610; Cavender v. Co., 92-634; Equitable Trust Co. v. Smith's Heirs, 1-306. Shr'ope, 73-297. 50 Crawford v. Grimm, 35-543; ssChilds v. McChesney, 20-431; Maquoketa v. Willey, 35-323; Cor- Johnson v. Carson, 3 G. Gr., 499; iell v. Ham, 4 G. Gr., 455; Cooley Vol. H33 514 SHEEIFF'S SALE. [ 1287, 1288. in certain special cases it is held an action will not lie to set aside the sale. 60 1287. Sales may be set aside when purchaser fails to pay. If the purchaser at the sale fails to pay the money when demanded, the judgment holder, or his attorney, may elect to proceed against him for the amount. If they do not do so, the sheriff may treat the sale as a nullity and may sell the property again on the same day, or after a postponement, as before stated. 61 In such case the sheriff should advertise and sell under a venditioni exponas, as under an ordinary execution. But a sheriff can not treat a bid as a nullity and issue a certificate to the next highest bidder; to do so would be a violation of law. He may disregard the bid and sell again, but if it is accepted, it is valid and binding. 62 If the bidder fails to pay the amount of his bid he cannot complain if the sheriff accepts from the debtor the amount of the judgment. 63 Where the plaintiff in ex- ecution is the purchaser at the sale and fails to pay the costs in the case the sheriff may treat the sale as a. nullity and adjourn it to another day. 64 If the sheriff treats the sale as complete it will be presumed that the execution plaintiff buying the property paid the costs. 65 1288. Sale set aside when defendant has no title, etc. When any person becomes a purchaser at a sher- iff's sale of any real estate on which the judgment upon which the execution issued was not a lien at the time of the levy, and which fact was unknown to the purchaser at the time of such sale, the district court, out of which the writ issued, will, on motion, set aside such sale. v. Wilson, 42-425; Exline v. Low- 5J-282; Morrison v. Spencer, 72- ery, 46-556; Merritt v. Grove, 61-99; 445. Williams v. Allison, 33-287; Cham- 62 Swortzell v. Martin. 16-519. bers v. Cochran, 18-159; Stewart v. s Long v. Valleau, 66 N. W., 195. Marshall, 4 G. Gr., 75. 64 Reese v. Dobbins, 51-282; Rit- eoRuthven v. Mast, 55-715; Mil- ter v. Henshaw, 7-97; Whitney v. ler v. Felkner, 42-458; Sigerson v. Armstrong, 32-9; see Chambers v. Sigerson, 71-476. Cochran, 18-159. 6i Code, Sec. 4033; Swortzell v. <* Haspham v. Worthington 69 Martin, 16-519; Reese v. Dobbins, N. W., 535. 1289.] SHEBIFF'S SALE. 515 Notice having been given to the debtor as in the case of an action, a new execution may be issued to enforce the judgment, and on making the order to set aside the sale, the sheriff or judgment creditor must pay over to the purchaser the purchase money. Such motion may be made by any person having an interest in the land. 66 If the judgment is against principal and surety and the sale is set aside, as hertofore stated, the surety will not be discharged unless he has, by reason of the sale, changed his condition or been prejudiced. 67 So sales will be set aside when property is bid in under a mistake as to the quantity of land sold. 68 Or the property is sold under a wrong description. 69 Or where a portion of the property is not described in the execution. 70 When the sale has been judicially set aside the satisfaction of the judgment which followed the sale and was entered of record by reason thereof, should also be set aside. 71 1289, Of the rule of caveat emptor. The sheriff in making a sale undertakes to sell only the interest or estate which the judgment debtor has in the property. His conveyance carries with it no warranty of title. The purchaser is bound to know at his peril of the title of the property purchased by him at such sale, and in the absence of fraud he can not avoid his bid or escape pay- ment of the purchase money by reason of a defective title in the judgment debtor. 72 But a purchaser at such sale, even if he be the plaintiff in execution, is protected against equities and unrecorded instruments of which he had no notice. 73 And a purchaser will not be relieved as Code, Sec. 4034; Hamsmith v. tiers v. Cochran, 18-159; Chapman Epsey, 19-444; Chambers v. Coch- v. Coates, 26-288; Thomas v. Ken- ran, 18-159; Dean v. Morris, 4 G. nedy, 24-397; Churchill v. Morse, Gr., 312; Reed v. Crosthwaite, 6- 23-229; Dean v. Morris, 4 G. Gr., 219; Boggs v. Douglass, 89-150. 312; Cameron v. Logan, 8-434; 67 Chambers v. Cochran, 18-159. Downard v. Crenshaw, 49-296; 8 Kellogg v. Decatur County, 38- Weaver v. Stacy, 93-683; Shaffer 524. v. McCrackin, 90-578. 9 Latimer v. Jones, 55-503. 73 Hamsmith v. Epsey, 19-44; TO Snyder v. Ives, 42-157. Evans v. McGlasson, 18-150; But- 71 Farmer v. Sasseen, 63-110. terfield v. Walsh, 21-97; Wallace v. 72 Holtzingerv. Edwards, 51-383; Bartle, 21-346; Walker v. Elston, Hamsmith v. Epsey, 29-444; Cham- 21-529; Gower v. Doheney, 33-36; 516 SHEEIFF'S SALE. [ 1290, 1291. against mere uncertainty in the description, where the land sold is, in fact, the same as that levied on. 74 Nor will a sale be set aside because of record incumbrances on the land amounting to more than its value. 75 1290. Of the disposition of money and choses in action. When money is levied on it may be appro- priated without being advertised and sold, and the same may be done with bank bills, drafts, promissory notes or other papers of like character, if the plaintiff will re- ceive them at their par value as cash, or if the officer can exchange them for cash at that value. 76 If choses in action can not be thus appropriated, they must be sold, and upon a sale of bills, notes or other writings, the sheriff may make the necessary assign- ments to pass the title to the purchaser, 77 and the sur- plus will be disposed of as provided in section 4030 of the code. 1291. Of satisfying judgments against an ex- ecutor or decedent. When a judgment has been ob- tained against the executor of one deceased, or against the decedent in his lifetime, which the personal estate of the deceased is insufficient to satisfy, the plaintiff may file his petition in the office of the clerk of the court, where the judgment is a lien against the executor, the heirs and devisees of the real estate, if there be such, setting forth the facts, and that there is real estate of the deceased, describing its location and extent, and praying the court to award execution against the same. 78 But before this can be done, collection must be first sought out of the personal estate, and for that purpose the judgment must be clearly stated, sworn to and filed as a claim against the estate, the same as any other claim. 79 Jones v. Brandt, 59-332; Bell v. Earhart v. Grant, 32-481; Ochiltree Evans, 10-353. v. M., I. & N. R. Co., 49-150; Code, 74 Hackworth v. Zollars, 30-433. Sec. 3971; see chapter on Judg- 75 McDonald v. Johnson, 48-72. ments. 76 Code, Sec. 4035. 78 Code, Sec. 4036; Bayless T. 77 Hetherington v. Hayden, 11- Powers, 62-601. 335; Campbell v. Leonard, 11-489; 79 Bayless v. Powers, 62-601. 1291.] SHERIFF'S SALE. 517 The petition for the purpose herein mentioned may be in the following form: FORM OF PETITION TO SUBJECT REAL ESTATE TO THE PAY- MENT OF A JUDGMENT AGAINST AN EXECUTOR OR DECEDENT. Title, Venue .1 Plaintiff states that on the day of , 18, he obtained judgment in this court against the defendant, , as executor of the last will and testament of , deceased (or against deceased, naming him, as the case may be), for the sum of dollars and costs of suit, which judgment remains in full force, and has not been paid (or if part paid, state the fact) ; that the personal estate of said deceased is insufficient to satisfy the said judgment (in whole or in part, as the case may be) ; that there is real estate of the deceased within this State, in county, Iowa, described as follows, to-wit (here describe the real estate) ; that said judgment has been duly stated, sworn to and tiled as a claim against the estate of the said (or as the case may be.) Wherefore, he prays the court to award execution against said real estate to satisfy said judgment, with interest and costs. , attorney for plaintiff. (Add verification.) The person against whom the petition is filed must be notified by the plaintiff to appear on the first day of the term and show cause, if any he has, why execution should not be awarded. 80 The notice must be served and returned in the ordinary manner and the same length of time allowed for appearance as in civil actions, and may be served on a non-resident by publication. 81 Such no- tice may be in the following form: FORM OF NOTICE TO EXECUTOR, ETC., OF PROCEEDINGS TO SUBJECT REAL ESTATE TO EXECUTION. To , executor, etc., and (here Insert names of all other parties as in petition) : You are hereby notified that the plaintiff on the day of , 18, recovered a judgment in this court against the de- fendant as executor of the last will and testament of , deceased, (or against , deceased, as the case may be) for the sum of dollars and costs of suit. That said judgment is in full force and un- paid; that it has been stated, sworn to and filed, as a claim against the estate of the said , that as the personal estate of said is in- so Code, Sec. 4037. si Code, Sec. 4038. 518 SHERIFF'S SALE. [ 1292. sufficient to pay the same, plaintiff will on the day of , 18 , file his petition in the district court of county, Iowa, asking that an execution be awarded against the following described real estate (here describe it), of said , that the same may be sold to satisfy said judgment, interest and costs, and the costs of this 'proceeding, and unless you appear at the next term of court to be begun and holden at the court house in in said county, on the day of , 18 , and show cause why said execution should not be awarded, the prayer of said petition will be granted and an execution awarded as prayed. , attorney for plaintiff. Unless good cause be shown to the contrary, the court at the proper time will award execution, 82 and the non- age of the heirs or devisees is not sufficient cause. 83 But a showing that the judgment had not been stated, sworn to and filed, as a claim against the estate, would be good cause for refusing to award execution against the real estate. 84 As would also the fact, if it is so found, that there is sufficient personal property to satisfy the judg- ment. 85 1292. Of setting off mutual judgments. Mutual judgments, the executions on which are in the hands of the same officer, may be set off, the one against the other, except that the costs can not be set off, unless the bal- ance of cash actually collected on the larger judgment is sufficient to pay the costs of both judgments, in which case the costs must be paid from such balance of cash in the sheriff's hands. 86 And when a judgment has been fraudulently assigned by the party in whose favor it was rendered, for the purpose of preventing a set-off, a court of equity will interpose and effect such set-off. 87 Under sections 4040 and 3465 of the code, an execution issued on a judgment in favor of a sole plaintiff may be set off against an execution issued on a judgment in which such sole plaintiff is a joint defendant. 88 Ordinarily the sher- iff has power only to set off executions in his hands when 2 Code, Sec. 4039. s Code, Sec. 4040. ss Code, Sec. 4039. 87 Hurst v. Sheets, 14-322 s* Bayless v. Powers, 62-601. ss Ballinger v. Tarbell, 16-491 SB Code, Sec. 4036. 1293, 1294.] SHERIFF'S SALE. 519 the parties to the judgments upon which they are issued are in both cases the same, and when the judgments are the property of the parties thereto. 89 The fact that a judgment has been assigned to the attorney in the case to secure his lien will not prevent the opposite party from setting off against it a judgment in his favor for costs in the same action. 90 1293. Of sale of leasehold interest, etc. When real property has been levied on, if the estate of the de- fendant therein is less than a leasehold interest having two years of an unexpired term, the sale is absolute. 91 When the estate is of a larger amount or interest, the property is redeemable as hereinafter stated. 92 A judg- ment is a lien on the debtor's leasehold interest in land and it follows the leasehold, though it be conveyed to other persons. 93 And such leasehold may be sold on execution after conveyance without the aid of a court of equity, and an action in equity can not be maintained for the purpose. 94 Real property is sold without appraisement. 1294. Of the appraisement of personal property. Personal property and leasehold interests in real* prop- erty having less than two years of an unexpired term, levied on and advertised for sale on execution, must be appraised before sale by two disinterested householders of the neighborhood, one of whom must be chosen by the execution debtor, and the other by the plaintiff, or in case of the absence of either party, or if either or both such parties refuse or neglect to make such choice, the officer making the levy must choose one or both, as the case may be, who must forthwith proceed to return to said officer a just and true appraisement under oath of said property, if they can agree, and in case they can not so Bell v. Perry, 43-368. 02 Code, Sec. 4043; chapter on Re- eo Tiffany v. Stewart, 60-207 ; Ben- demption. Bon v. Haywood, 86-107. as First Nat'l Bk. v. Bennett, 40- i Code, Sec. 4043. 537, and cases cited. 9* Sweezy v. Jones, 65-272. 520 SHERIFF'S SALE. [ 129-i. agree, they must choose another disinterested house- holder and with his assistance complete said appraise- ment, and the property can not upon the first offer be sold for less than two-thirds of such valuation, provided, the same must be offered for three successive days at the same place and hour of the day as advertised, and if no bid is received equal to two-thirds of the appraised value thereof, then it may be sold for one-half the valuation. 95 But it has been held that contracts made prior to the taking effect of the appraisement law of I860 were not affected thereby, even though enforced after the law took effect. 96 And under the revision, section 3362, it was held that the fact that one of the appraisers was not a householder, as required by law, did not render the sale void. 97 But in such a case, when lands were appraised at less than one-half their real value, the debtor was allowed to redeem from the judgment creditor. 98 And it was further held that a sale for a less proportion of the appraised value than the law then authorized would be invalid, at least as between the parties. 99 When it ap- pears that the sheriff in appointing an appraiser did not show in his return that the party for whom he acted in making such appointment was absent, or refused to act, such fact will not render the sale void, nor will the fact that the deputy sheriff selected one of the appraisers. 1 Notice must be given to the parties, their agents or at- torneys, of the levy, and it must require each of them to choose one appraiser. 2 It may be served in the ordinary manner, or if the parties are present when the levy is made, they may choose appraisers without formal writ- ten notice. The debtor cannot by stipulation in a mort- gage, or otherwise, waive the provision of the law re- quiring an appraisement. 3 The notice may be in the fol- lowing form : 5 Code, Sec. 4041. Maple v. Nelson, 31-322. Olmstead v. Kellogg, 47-460; i Preston v. Wright, 66-351; Rosier v. Hale, 10-470. Davis v. Spaulding, 36-610. T Hill v. Baker, 32-302. 2 Code, Sees. 4023, 4024. es Woods v. Cochran, 38-484. s Minneapolis Threshing Men. Co. v. Beck, 64 N. W., 637. 1294.] SHEEIFF'S SALE. 521 FORM OF NOTICE TO CHOOSE APPRAISERS. Venue. "I Title, / To (or his agent or attorney, as the case may be) : You are hereby notified that by virtue of an execution issued from the office of the clerk of the district court of county, Iowa, in the above entitled action, I have levied upon the following personal prop- erty as the property of said , viz. (here describe the property), and that I will have said property appraised on (day of the week), the day of , 18 . And you are required to select one disinterested householder of the neighborhood within three days to act as an ap- praiser on your behalf, to value said property and report the same to me, as required by law. Dated the day of , 18. , sheriff of county, Iowa. The sheriff, after the appraisers have been selected as provided by law, may issue to them the following ap- pointment: FORM OF APPOINTMENT OF APPRAISERS. Title, Venue. To (here insert names of appraisers), appraisers: On an execution issued from the office of the clerk of the district court of said county, on a judgment rendered in the above entitled action on the day of , 18 , against the defendant (or plain- tiff), for (amount) and per cent, interest and costs, I have levied on the following described property, to-wit (here describe property). You are, therefore, hereby notified that you are appointed appraisers to appraise under oath the present cash value of the above described personal property, and having performed that duty you will return a written report thereof as soon as practicable. Dated this day of , 18 . , sheriff of county, Iowa. The appraisers must be sworn as follows: FORM OF OATH OF APPRAISERS. State of Iowa, { gg 'I County We (names of appraisers), do each solemnly swear that to the best of our knowledge and ability, we will faithfully and impartially ap- praise the present cash value of the property described in the above appointment. (Add certificate of officer.) 522 SHERIFF'S SALE. [ 1295. After making the appraisement the appraisers should make the following return to the sheriff: FORM OF APPRAISEMENT. To the sheriff of county, Iowa: We, the undersigned, having performed the duties assigned us in the foregoing appointment, respectfully report that we have thoroughly ex- amined the property, described in our written appointment, and under oath have appraised the present' cash value of said property, at dollars (or if the articles of property are numerous, say, as shown In schedule "A" attached hereto, attaching a schedule with a description of each article of property, and its value set opposite). Witness our hands this day of , 18 . appraisers. These three forms may properly be put on one sheet. The revision required that when the property offered for sale under the writ was subject to prior liens, the amount bid should be the balance after deducting the amount of such prior liens from two-thirds of the appraised value. 4 Nothing is said in the code with reference to deducting prior liens in making the appraisement, and it would seem that they are not to be considered. 5 For further discussion of the subject of appraisement, which, as to sales of real estate, is almost obsolete, the reader is re- ferred to cases below. 6 1295. Of the .sheriff's return. After the sale the sheriff must make his return of the execution with a statement of his doings thereunder, together with the notice of appointment of appraisers, oath of appraisers, and appraisement of the property, which return should affirmatively show a compliance with the statute. But a failure of the officer to make return of a sale before the expiration of a year from the date of it will not invali- date the sale. 7 * Revision, Sec. 3360; Sargent v. Bolander, 4 G. Gr., 201; Johnson v. Pittman, 16-469; Brown v. Butters, Casson, 3 G. Gr., 499; Burton v. 40-544; Barber v. Tryon, 41-349; Emerson, 4 G. Gr., 393; Holland McDonald v. Johnson, 48-72. v. Dickerson, 41-367; Babcock v. 5 Van Slyck v. Mills, 34-375. Gurney, 42-154. e Fonda v. Clark, 43-300; McDon- i Cooper v. French, 52-531. aid v. Johnson, 48-72; Shaffer v. 1296.] SHERIFF'S SALE. 523 1296. Of the rights of the purchaser, and who may purchase. In treating of redemption we have spoken of the rights of the purchaser with reference to recording his deed; we now consider briefly the rights ac- quired by the purchaser generally at execution sale. If one purchases personal property at an execution sale his rights are only those of a judgment defendant at the time of the levy, being subject to the rights of prior pur- chasers. 8 And generally it may be said that a purchaser at an execution sale acquires no title when it is apparent from the record that the debtor had no interest in or title to the property. 9 In order to affect the right of a purchaser at an execution sale it must appear that the conveyance under which the adverse party claims was in fact made before the deed was filed for record. 10 But the purchaser at an execution sale will not obtain prior- ity over a purchaser at a previous sale of the same prop- erty under a mortgage executed and recorded prior to such sale. 11 A sheriff's deed under a sale on execution transfers the premises sold and also relates back to the time the judgment became a lien on the land. 12 An at- torney of an execution plaintiff who purchases at execu- tion sale property levied on by attachment, will not be deemed an innocent purchaser, but he and his heirs are chargeable with equities or with illegalities in the pro- ceedings. 13 But an execution plaintiff who purchases in good faith and before notice of appeal, will be protected the same as a stranger. 14 A judgment creditor who pur- chases at an execution sale an equitable interest in land, takes the premises subject to prior equities of third par- ties, of which he had no notice. 15 It is held that the plaintiff in execution, who purchases at the sale, is pro- tected against outstanding equities of which he had no notice, actual or constructive, before the sale. 16 One of s Rakestraw v. Hamilton, 14-147; Bell v. Hall, 4 G. Gr., 68. Thomas v. Hillhouse, 17-67. Kane v. Mink, 64-84. o Stuart v. Hines, 33-60. " Cook v. Jenkins, 30-452. 10 Brown v. Wade, 42-647; see 1* Frazier v. Craft, 40-110. Bonnell v. Allerton, 51-166. Wallace v. Bartle, 21-346. i Butterfield v. Walsh, 36-534, 524 SHEBIFF'S SALE. [ 1297. several execution defendants may purchase at an execu- tion sale the property of another defendant, 17 and a bid made at such sale may be transferred to another by con- sent of the court, and such other person will then be con- sidered the purchaser. 18 1297. Of return of the purchase money cancel- ing satisfaction, etc. When a sale has been judicially set aside, the satisfaction of the judgment which fol- lowed the sale should be set aside. 19 And the proceed- ing to set aside the sale should be brought in the court wherein the judgment was rendered. 20 One seeking to have a sheriff's sale set aside, must return or offer to re- turn the property or, if he has sold it, its proceeds. 21 A purchaser at an execution sale who pays his money with- out knowledge of any irregularities therein, is entitled, on the sale being set aside, to have the money he has paid refunded to him, and for such purpose may be sub- rogated to the rights of the execution plaintiff. 22 But the purchaser of premises under a foreclosure sale which is afterward set aside, is not liable for rent or waste ac- cruing between the time of sale and the time it was set aside, if possession was taken by another without his knowledge and he was not connected with the acts of the tenant. 23 To establish title under a sale on execution the purchaser may give in evidence the judgment and execution under which the property was sold and prove the sale by the sheriff's deed or the return on the execu- tion. 24 A purchaser of property held under execution is- sued on a void judgment may maintain an action against the officer for selling the property. 25 One acting as a public officer in making a sale can not be heard to object that he was not an officer de jure. 26 and cases cited; see Bear v. Bur- 21 First Nat'l Bk. v. Conger, 37- lington, C. R. & M. R. Co., 48-619. 474; Williams v. Allison. 33-278. 7 Winde v. Brandt, 55-221. -2 Fleming v. Maddox, 32-493; is Oilman v. Des Moines V. R. see Cotter v. O'Connell, 48-552; Co., 42-495. Osborn v. Cloud, 23-104. is Farmer v. Sasseen, 63-110; see 23 Vulgamore v. Stoddard, 21-115. Parks v. Davis, 16-20; State Bk. v. 21 Lepage v. McNamara, 5-124. Harrow, 26-426. 25 Gates v. Neimeyer, 54-110. 20 White v. Hampton, 14-66. 26 state v. Stone, 40-547. CHAPTEK LXXXI. OF SUMMARY PROCEEDINGS. Sec. 1298. When allowed. 1299. Of the form of proceeding. 1300. Of notice. 1301. Of the hearing. Section 1298. When allowed. Judgments or final orders may be obtained, on motion, by sureties against their principals; by sureties against their co-sureties, for the recovery of money due them on account of pay- ments made by them as such; by clients against attor- neys; plaintiffs in execution against sheriffs, constables and other officers, for the recovery of money or prop- erty collected by them, and for damages. 1 The court may make an order against a clerk to compel payment of money received by him on a judgment. 2 But sureties on official bonds are not included in this statute; they must be regularly brought into court as defendants, and have an opportunity to contest the claim made by the plaintiff. 3 1299. Of the form of the proceeding. The pro- ceeding is instituted by motion of the party entitled thereto setting forth the grounds on which he asks the judgment or order of the court, and may be in the fol- lowing form: FORM OF MOTION FOR SUMMARY PROCEEDINGS. Title, ) Venue. \ The plaintiff states: 1. That on the day of , 18, judgment was duly ren- iCode, Sec. 3826; Cross v. Ack- son v. Hays, 85-14; Logan v. Mc- i ey) 40-493; Hawk v. Evans, 76- Cahan, 71 N. W., 252. 593; State v. Morgan, 80-413. s Code, Sec. 3826; Bitting v. 2 Elliott v. Jones, 47-124; Peter- Moore, 53-593. 525 526 SUMMARY PEOCEEDIXGS. [ 1299. dered in this court in his favor against for the sum of dollars and costs. 2. That the said , the defendant herein, was attorney for this plaintiff in the suit when said judgment was rendered. 3. That on or about the - day of - , 18 , said defendant as such attorney for plaintiff herein received of the clerk of the district court of county, Iowa, the sum of dollars in full of said judgment and the interest thereon. 4. That this plaintiff is not indebted to defendant, and defendant neglects and refuses to pay said sum over to plaintiff though it has been demanded of him. Wherefore plaintiff moves for judgment against the said , de- fendant, as aforesaid, for the sum of dollars with damages and costs. , attorney for plaintiff. The form must be changed to suit the circumstances of each case. Thus, if the proceeding is against a sheriff who has collected funds on execution and refuses to pay over to the party entitled thereto, divisions 2, 3 and 4 of above form should be omitted and the following inserted in lieu thereof: FORM OP MOTION WHEN THE ACTION IS AGAINST AN OFFICER. FOR REFUSING TO PAY OVER. 2. That on the day of , 18 , an execution was issued on said judgment directed to and placed in the hands of said , the then acting sheriff of county, Iowa. 3. That the said has collected on said execution the sum of dollars, which he neglects and refuses to pay over either to this plaintiff or to the clerk of this court, though such payment has often been demanded. The motion must state the facts fully in each case, showing the right of the party to make the motion and to have judgment, and the relationship of the party mak- ing the motion to the one against whom it is directed must be shown, and the facts out of which the obligaion of the latter arises in favor of the plaintiff; thus if it is made by a client against his attorney it must state the facts showing the existence of such relation, and that the attorney has collected the money, and refuses to pay it over, or if a case of surety against principal it must show 1300, 1301.] SUMMARY PROCEEDINGS. 527 that relation, and the fact the surety has paid money for his principal and has not been reimbursed. 1300. Of notice. Notice of the motion must be served on the party against whom the judgment or order is sought, at least ten days before the motion is made. 4 The notice must state in plain and ordinary language the nature and grounds of the motion and the day on which it will be made. 5 And unless the motion is made and filed with the case on or before the day named in the notice it will be considered as abandoned. 6 The notice may be in the following, form : FORM OF NOTICE OF MOTION IN SUMMARY PROCEEDINGS. Title, Venue. To : You are hereby notified that on the day of , 18 , the plaintiff will move the court for a summary judgment (or order, as the case may be) against you on the following grounds: 1. That (here set out the grounds of the motion). And unless you appear and show cause to the contrary judgment will be rendered against you accordingly. , attorney for plaintiff. 1301. Of the hearing. The motion will be heard and determined without written pleadings and judg- ment given according to law and the rules of equity. 7 Where money of a third party is paid to the clerk in pur- suance of a decree of court, such third party has no right to object to the disposition of such money on the ground that he had no notice of the action in which the decree was rendered; if the decree is invalid it can not be at- tacked in that manner. 8 In the absence of a demand for a trial of the issues at law and for a jury it is not error to try the case to the court as an equitable proceeding. 9 * Code, Sec. 3827. ? Code, Sec. 3830; Mansfield v. Code, Sec. 3828; see Mansfield v. Wilkerson, 26-482. Wilkerson, 26-482. 8 Elliott v. Jones, 47-124. e Code, Sec. 3829; Mansfield v. Lothian v. Lothian, 88-396. Wilkerson, 26-482. CHAPTEK LXXXIL OP TRESPASS. Sec. 1302. What is trespass. 1303. When the action will lie. 1304. Who may maintain the action. 1305. When the action will not lie. 1306. Of the petition. 1307. Of practice. Section 1302. What is trespass. Trespass is an un- lawful act committed with violence vie et armis to the personal property or relative rights of another. 1 1303. "When the action will lie. It will lie for wilfully injuring any timber, tree, or shrub on the land of another; or in the street, or highway, in front of another's cultivated grounds, yard, or town lot, and on the public grounds of any town, or on land held by the State of Iowa for any purpose whatever. 2 So it will lie against one who drives his cattle upon another's land through a breach in the fence. 3 Or when one enters on the land of another and digs a ditch. 4 And it will lie against one who without leave raises a crop on another's land and removes it. 5 1304. Who may maintain the action. The suit may be instituted in the name of any person entitled to protect or enjoy the property trespassed upon, and if recovery be had the perpetrator must pay treble dam- ages. 6 It may be maintained by the owner of an estate in 1 2 Bouv. Law Die., 14th Ed., pg. s Erbes v. Wehmeyer, 69-85. 608. * Williams v. Mills Co., 71-367. 2 Code, Sec. 4306; Wilson v. Gun- 5 Kiernan v. Heaton, 69-136; ning, 80-331; Werner v. Flies, 91- Schmidt v. Williams, 72-317. 146. s code, Sec. 4306. 528 1305.] TKESPASS. 529 remainder, or reversion, for an injury to the inheritance. 7 So an heir, whether a minor or of full age, may maintain the action for injuries done in the time of his ancestor, as well as in his own time, unless barred by the statute of limitations. 8 And a purchaser at execution sale may maintain the action. 9 But this would not prevent the person occupying the land during the period of redemp- tion from using it in the ordinary course of husbandry, or from using timber for the purpose of making proper repairs thereon. 10 So the owner of a treasurer's certificate who purchases the land sold for taxes, may recover treble damages of one wilfully committing trespass thereon, 11 but the moneys recovered in such case will be paid by the officer collecting the same, to the county auditor of the county in which the lands are situated, and held by him and an entry made in a book kept for that purpose, until such lands are redeemed and a treasurer's deed shall have been executed to the holder of the certificate. If redemp- tion be made, the money will be paid to the owner of the land; if not redeemed, to the person to whom such deed is executed. 12 The tenant in possession may also have an action for such injuries. 13 So it is held when one is in constructive possession he can maintain the action of trespass. 14 The owner of real property, though it be actually occupied by a tenant, can maintain an action against a trespasser for injuries to the premises. 15 1305. When the action will not lie. The action will not lie against a person who is settled upon and oc- cupying any portion of the public lands held by the State of Iowa, where he is improving or cultivating said land in the ordinary course of husbandry, and not taking or 7 Code, Sec. 4307. 13 Elliott v. Foster, 33-216. s Code, Sec. 4308. 14 Terpenning v. Gallup, 8-74; s Code, Sec. 4309. Mann v. Lewis, 4 G. Gr., 494; Dor- 10 Code, Sec. 4309. cey v. Patterson, 7-420. 11 Code, Sec. 4311. is Printz v. Cheney, 11-469; see 12 Code, Sec. 4312. Brown v. Bridges, 31-138. Vol. H34 530 TRESPASS. [ 1306, 1307. using timber, or other materials, growing or being on said land, except as the same are necessary properly to enable him to suitably cultivate and improve the same. 16 1306. Of the petition. FORM OF PETITION 'IN AN ACTION OF TRESPASS ON REAL PROPERTY. Title, ) Venue. ) The plaintiff states: That on or about the day of , 18 , , said plaintiff, was the owner of the following described real estate in the county of aforesaid, and ever since that time has been the owner of the same (here describe the premises); that said premises are the culti- vated grounds (yard or town lot) of the plaintiff; that on said day and divers other days between that day and the commencement of this suit, the defendant unlawfully did enter upon said premises, and then and there cut down sugar trees standing and growing on said prem- ises, and of the value of dollars each, and converted the same to his own use, and no part of said sum has been paid plaintiff. Where- fore plaintiff prays judgment against the defendant for the sum of dollars and costs. -, attorney for plaintiff. (Prayer for judgment should be for three times the amount of dam- ages sustained.) 1307. Of practice. In order to maintain an action the plaintiff need not be in actual possession of the land at time of the commission of the trespass, provided he is the owner thereof, and there was no adverse possession in another. 17 But where a plaintiff in an action for trespass does not allege that he was in possession, but relies wholly on ownership, he must show, in order to re- cover, that he or his grantors obtained title from the gen- eral government. 18 And a deed constituting a necessary link in the chain of such title it admissible in evidence, although the description of the premises is defective; the defect may be cured by other competent evidence. 19 Trespass will i Code, Sec. 4310. Brown v. Bridges, 31-138; Printz v. "Terpenning v. Gallup, 8-74; Cheney, 11-46. Mann v. Lewis, 4 G. Greene, 494; is Heinrichs v. Terrell, 65-25. Dorcey v. Patterson, 7-420; see "Heinrichs v. Terrell, 65-25. 1307.] TKESPASS. 531 not be restrained by injunction when the injury is not ir- reparable, and the trespasser is solvent, and adequate damage may be recovered at law. 20 But an injunction will be granted to prevent the continuance of a trespass in defiance of the mandate of court. 21 A trespasser on a railroad track who is struck and injured by a train can not recover on account of negligence of the company, ex- cept negligence of the employes in not trying to avoid the injury after discovery of the danger. 22 And one who, without license, walks or stops to play or loiter on a railway track is a trespasser. 23 If a de- fendant in answering does not set up title in himself, in the premises on which the alleged trespass was com- mitted, he will not be permitted to give evidence of such title. 24 It is held that an appraisement made by two of the township trustees under the provisions of the code, for damage of trespassing animals is void if no notice was given the third trustee. 25 20 Bolton v. McShane, 67-207. 23 Masser v. C., R. I. & P. R. Co., 21 Ten Eyck v. Sjoburg, 68-625. 68-602. 22 Morris v. C., B. & Q. R. Co., 45- a* Dyson v. Ream, 9-51; iidler T. 29; Masser v. C., R. I. & P. R. Co., Smith, 10-587. 68-602. as Barrett v. Dolan, 71-94. CHAPTER LXXXIIL OF WASTE. See. 1308. Waste defined. 1309. Of the commission of waste. 1310. Of the judgment. 1311. When a person will be deemed to have committed waste. 1312. Of the petition. Section 1308. Waste defined. Waste is said by Mr. Justice Blackstone to be "a spoil or destruction in houses, gardens, trees or other corporeal hereditaments, to the disherison of him that hath the remainder or reversion in fee simple or fee tail." 1309. Of the commission of waste. If a guard- ian, tenant for life or years, joint tenant or tenant in common of real property, commit waste thereon, he is liable to pay three times the damages which have re- sulted from such waste, to the person who is entitled to sue therefor. 1 The provisions of this section do not ap- ply to an action against a tenant under a mining lease for mining coal outside of the limits specified in the lease. 2 1310. Of the judgment. Judgment of forfeiture and eviction may be rendered against the defendant, whenever the amount of damage so recovered is more than two-thirds the value of the interest such defendant has in the property injured, and when the action is brought by the person entitled to the reversion. 3 1311. When a person will be deemed to have committed waste. A person whose duty it is to prevent waste and who fails to use reasonable and ordinary care to avert the same, is deemed to have committed it. 4 1 Code, Sec. 4303. 8 Code, Sec. 4304. 2 Oskaloosa College v. Western * Code, Sec. 4305. Union Fuel Co., 90-380. 532 1312.] WASTE. 533 1312. Of the petition, The petition in an action for waste may be in the following form: Title, \ Venue. / The plaintiff states that he was, on the day of , 18 , and ever since has been, seized in fee simple of following described premises (here describe premises), and that on said date he leased to the defendant the premises above described for the term of years by written lease at the yearly. rent of dollars, payable (state as in lease) a copy of which is hereto annexed marked "A" and made a part hereof. That the said defendant in said lease covenanted with the said plaintiff that he, the said defendant (here set out the cove- nant in relation to keeping buildings and premises in repair), and said plaintiff says that the said defendant took possession of said premises under and by virtue of said lease and still keeps the same; that when he took possession of said premises they were in good repair and condi- tion, and that during the period of said occupancy and on the day of , 18 , and at divers times between that day and the com- mencement of this action, the said defendant spoiled and wasted said premises by (permitting the roofs of the building thereon to become open and leaky or by breaking down the doors, here state any other acts of waste) and has otherwise committed waste and destruction in and upon said premises, whereby the plaintiff has been damaged in the sum of dollars, no part of which has been paid, and the said de- fendant has and does threaten to commit further and other obstruction and waste on said premises in this, that he threatens to (here, state what defendant threatens to do, which is claimed to be waste). Plain- tiff, therefore, prays judgment against the said defendant for the sum of dollars and costs. , attorney for plaintiff. Where the above form of petition is in an action where it is sought to enjoin the continuance of the commission of waste before the final determination of the suit, the prayer for damages should be three times the amount which has resulted from such waste. 5 e Cowles v. Shaw, 2-496; Wilson v. Henzel, Morris, 461. CHAPTER LXXXIV. OF APPELLATE PROCEEDINGS. Sec. 1313. Of time of taking an appeal. 1314. When an appeal lies. 1315. When an appeal will not lie. 1316. What .will amount to a waiver of the right to appeal. 1317. Of the amount in controversy How determined. 1318. Of the form and requisites of the certificate. 1319. Of the time of making the certificate, etc. 1320. Of questions involving an interest in real estate. 1321. Of notice of appeal. 1322. Of service of the notice Perfecting the appeal. 1323. Of filing the notice Waiving irregularities, etc. 1324. Of the supersedeas bond. 1325. Of proceedings when bond is defective Of the supersedeas. 1326. Who may appeal. 1327. Of the certification of the record When necessary and how obtained. 1328. Of denials of the transcript and the perfection of the record. 1329. Of certifying the records in an equity case. 1330. Of the form of the transcript. 1331. Of correctness of the record, etc. 1332. Of inspection of original papers. 1333. Of the form and requisites of the abstract. 1334. Of the construction and modification of rules. 1335. When the appeal will be dismissed or the judgment affirmed. 1336. When the abstract will be deemed true. 1337. When the abstract may be attacked by motion. 1338. Of the filing and service of amended and additional ab- stracts. 1339. When the abstract must contain all the evidence, or all the instructions. 1340. What is sufficient to show that the abstract contains all the evidence. 1341. Assignment of errors When necessary. 1342. Of the sufficiency of the assignment of errors. 1343. Of service, and filing the assignment of errors. 1344. Of the form of the assignment and of the effect of failing to argue assignments. 1345. Of the argument. 534 1313.] APPELLATE PROCEEDINGS. 635 1346. Of the duty of the clerk. 1347. Of motions. 1348. Of affirmance of cases in the supreme court. 1349. Of reversal of cases in the supreme court. 1350. Of the effect of judgment in supreme court, and of remitting part of judgment, etc. 1351. Of the effect of a prior decision on a second appeal. 1352. Of proceedings in the lower court after a cause is reversed and remanded. 1353. Of power of supreme court and of executions therefrom Restoration of property. 1354. Of opinions of the court Rules. 1355. Cases where no motion for a new trial is necessary, etc. 1356. Of the lien of the judgment of the supreme court, etc. 1357. Of the procedendo Of decrees Withdrawing papers. 1358. When causes will be tried de novo in the supreme court. 1359. Of regulations as to the method of trial. 1360. What must appear of record to warrant a trial de novo. 1361. Of the judge's certificate to the evidence, its requisites, and when it must be filed. 1362. Of the clerk's certificate. 1363. Of the hearing and determination of appeals in equitabla actions. 1364. Of questions as to the admissibility of evidence. 1365. When the case will be remanded. 1366. Of the decree in a cause triable de novo. 1367. Of proceedings in the lower court in an equitable action after it is remanded. 1368. Questions not raised in the court below will not be con- sidered on appeal. 1369. Of the presumptions which obtain with reference to the pro- ceedings of the court below. 1370. Same Where the evidence is not all before the court. 1371. What is error without prejudice Generally. 1372. When rulings upon demurrer, or with reference to pleadings, will be without prejudice. 1373. Of error without prejudice in rulings upon the evidence, etc. 1374. Of error without prejudice in the giving of instructions. 1375. Of the discretion of the court below, etc. 1376. Of the petition for rehearing, when filed What confined to. 1377. Of the argument. 1378. Of the action of the court. Section 1313. Of time of taking an appeal. Ap- peals may be taken from the superior and district courts to the supreme court at any time within six months from the rendition of the judgment or order appealed from. 1 iCode, Sec. 4110; Rules, Sec. 9; Oppenheimer v. Barr, 71-525. 536 APPELLATE PKOCEEDIXGS. [ 1313. In computing the six months within which an appeal may be taken, the day on which the judgment was ren- dered will be excluded, and the corresponding day at the end of the time included. 2 The record must show that the appeal was taken in time. 3 The time of taking an appeal is jurisdictional and must affirmatively appear or the appeal w T ill be dismissed. 4 A failure to comply with the statute as to the service of notice of appeal will not be excused because the notice could not be served within the time required. 5 The time for taking an appeal must be computed from the time the decree or judgment is en- tered not from the time of making a subsequent order cor- recting mere formal defects. 6 It is not necessary that the notice of appeal be filed with the clerk within six months, 7 nor that the clerk's fees for a transcript be paid or secured within that time. 8 But the appeal need not be perfected within the six months, thus shorthand notes are not required in all cases to be filed within that time. 9 An appeal from the final judgment in due time will raise the objections to all previous proceedings in the case, although more than six months have elapsed since such proceedings were had. 10 If the judgment was, by agreement, rendered in vacation, as of the pre- ceding term, the time for taking an appeal will begin to run from the time the decision was, in fact, made. 11 But an appeal taken within six months from a decision of the court on a petition for a new trial, but more than six months from the rendition of the judgment on the ver- dict, will only bring up for review the action of the court relating to the petition for new trial. 12 And an appeal in zCarleton v. Byington, 16-588; * Fairburn v. Goldsmith, 56-347; Parkhill v. Brighton, 61-103; see Loomis v. McKenzie, 57-77. Ritchey v. Fisher, 85-560.* a Hammond v. Wolf, 78-227. s Gleason v. Collett, 77-448; 10 Halladay v. Johnson, 12-563; Wambach v. Grand Lodge, 88-313; Lesure Lumber Co. v. Mutual F. Taylor v. Taylor, 63 N. W., 180. Ins. Co., 70 N. W., 761. * Wambach v. Grand Lodge, 88- n Carter v. Sherman, 63-689; 313; Taylor v. Taylor, 63 N. W., Kendall v. Lucas County, 26-395; 180. McMurray v. Day, 70-671; see Will- 5 McNider v. Sirrine, 84-58. iams v. Wells, 62-747. Calef v. Cole, 93-679. 12 Cohol v. Allen, 37-449; Car- i Baldwin v. Tuttle, 23-66. penter v. Brown, 50-451; see Pat- 1314.] APPELLATE PEOCEEDIXGS. 537 an equity case, taken more than six months after the rendition of judgment, will not bring up for the consider- ation of the supreme court any of the proceedings prior to the filing of the motion for a new trial, and the court can not try the case de npvo. 13 The right of an appeal must, in all cases, be determined by the law in force when the judgment is rendered. 14 Sometimes the judgment relates back to a term of court in which case the time for taking the appeal is computed from the date the judg- ment was in fact entered. 15 1314. When an appeal lies. An appeal lies from the removal or suspension of an attorney. 16 The su- preme court has appellate jurisdiction over all judg- ments and decisions of all other courts of record, as well in civil actions as in proceedings of a special or inde- pendent character. 17 Under Code Section 4100 an ap- peal will lie by a city or its board of equalization in its behalf from a judgment canceling an assessment ren- dered on appeal from the board, though the city or board had no right to appeal in the first instance to the district court. And an appeal lies from the following orders: An order made affecting a substantial right in an action, when it, in effect, determines the action, and prevents a judgment from being taken; a final order made in special proceedings affecting a substantial right therein, and made on a summary application in an action after judg- ment; when an order grants or refuses, continues or modifies a provisional remedy, or grants, refuses, dis- solves or refuses to dissolve an injunction or attachment; when it grants or refuses a new trial; when it sustains or overrules a demurrer; an intermediate order involving the merits and materially affecting the final decision; terson v. Jack, 59-632; Wish- and see Carter v. Davidson, 73-45. ard v. McNeil, 78-40. ie Code, Sec. 329. 13 Bosch v. Bosch, 66-701. IT Code, Sec. 4100; Rules, Sec. 3; i* Rivers v. Cole, 38-677; Daven- Chicago, R. I. & P. R. Co. v. Dey, port v. Davenport, etc., 37-624. 76-278; In re Breese, 82-573; Farm- is Carter v. Sherman, 63-689; ers L. & T. Co. v. Newton, 66 N. Kendall v. Lucas County, 26-395, W., 784; State v. Van Beek, 87-569; Hodges v. Tama County, 91-578. 538 APPELLATE PEOCEEDIXGS. [ 1314:. an order or judgment in habeas corpus. 18 If any of the above orders or judgments are made or rendered by a judge the same may be reviewed as if made by the court. 19 An appeal lies from an order declaring a bail-bonu for- feited, 20 from a decree of partition, 21 from a decree for an accounting, 22 from an order denying the district attorney the right to appear for the county, 23 and from a decree though a cross-bill is pending, 24 and from a final order vacating a judgment, 25 and from a certiorari proceed- ing, 26 and from an order revoking a permit to sell liquor. 27 An appeal will only lie from an intermediate order when it affects the merits of the case. 28 But in such cases it has been held that an appeal would lie from a ruling sus- taining a motion to set aside an order made in a case directing the payment of a sum of money from one party to another, 29 and in some instances from a ruling on a motion to change the venue of a case. 30 So an appeal lies from a ruling on demurrer, 31 and from a ruling on a motion striking matter from a petition, thereby prevent- ing the introduction of evidence, 32 and from a ruling striking a petition of intervention from the files, 33 and from a decision overruling a motion to set aside a verdict in an ad quod damnum proceeding, 34 and from an order dissolving or sustaining an attachment, 35 and from a is Code, Sec. 4101; Rules, Sec. 4; 25 Dryden v. Wyllis, 51-534; Coffin v. Eisimrager, 75-30; In re Code, Sec. 4100. Estate of Pyle, 82-144; Price v. 2 Iske v. Newton, 54-586. ^Etna Ins. Co., 80-408; Hawk v. 27 State v. Schmidtz, 65-556. Evans, 76-593; Blair v. Blair, 74- 28 Richards v. Burden, 31-305. 311; Nat'l Bk. v. Chase, 71-120; 29 Guthrie v. Guthrie, 71-744. Clark v. Raymond, 84-251; Guthrie so Lucas County v. Wilson, 59- v. Guthrie, 71-744; Kell v. Lund, 354. 68 N. W., 593; Weiser v. McDowell. si Cowen v. Boone, 48-350; 93-772; Sieffert & Wise L. Co. v. Hampton v. Jones, 58-317; Arnold Hartwell, 63 N. W., 333; Bradley v. Kreutzer, 67-214; Code, Sec. v. Miller, 69 N. W., 426; Bicklin 4101; Seippel v. Blake, 80-143; v. Kendall, 72-490; Mahaska Coun- Thorpe v. Smith, 86-410; Weiser v. ty State Bk. v. Christ, 82-56; Bald- McDowell, 93-772; Bradley v. Mil- win v. Foss, 71-389; Kay v. Pruden, ler, 69 N. W., 426. 69 N. W., 1137. 32 Stanley v. Davenport, 54-463. i Code, Sec. 4102; Rules, See. 5. ss First Nat'l Bk. v. Gill, 50- 20 State v. Connehan, 57-351. 425; Bicklin v. Kendall, 72-490. 21 Williams v. Wells, 62-747. 34 Burnham v. Tho'mpson, 35-421. 22 McMurray v. Day, 70-671. ss Johnson v. Butler, 1-459; 23 Clark v. Lyon County, 37-469. Berry v. Gravel, 11-135. 2* Lucas v. Pickel, 20-490. 1314.] APPELLATE PROCEEDINGS. 539 judgment against a garnishee, 36 and from an order direct- ing a guardian to pay a judgment, 37 and from an order of a probate court in a special proceeding for the discov- ery of assets, 38 and from an order transferring or refusing to transfer a cause to the equity docket, 39 and from an order dismissing a special proceeding to compel an attor- ney to pay over money, 40 and from an order expunging a final order, 41 and on final judgment from an order upon a motion for a change of venue 42 and sometimes from a ruling on a motion to strike, 43 and from an order striking out an amendment to a petition which added another de- fendant and alleged that he was jointly liable with the original defendant and which set up ground for attach- ment against him, 44 and from an order allowing, refusing or dissolving an injunction, 45 and from an order appoint- ing or refusing to appoint a receiver, 46 and from an order recommitting a cause to arbitrators, 47 and from an order releasing the original defendants and substituting other defendants, 48 and from an order dismissing an appeal from justice's court, 49 and from a judgment rendered without authority, 50 and from a judgment by confes- sion, 51 and from a judgment by default or a decree pro confesso, 52 and from a decree determining a material is- sue, 53 and from an order quashing an original notice, 54 and from the action of the district or superior court in reference to violation of the law regulating railway com- 36 Bebb v. Preston, 1-460; Sinard 47 Brown v. Harper, 54-546. v. Gleason, 19-165; National Bk. v. 48 Sunberg v. District Court, 61- Chase, 71-120. 597. ST Coffin v. Eisiminger, 75-30. * Cumin v. Excelsior C. Co., 63- ss in re Estate of Pyle, 82-144. 94. as Price v. JEtna Ins. Co., 80-408. so Petty v. Durall, 4 G. Gr., 120. 40 Hawk v. Evans, 76-593. si Troxel v. Clarke, 9-201; Ed- 41 Guthrie v. Guthrie, 71-744. gar v. Greer, 7-136. 42 Kell v. Lund, 68 N. W., 593. 52 Woodward v. Whitescarver, 43 Seiffert & Wise L. Co. v. Hart- 6-1; Harris v. Kramer, 3-543; Carr well, 63 N. W., 333. v. Kopp, 3-80; Byington v. Cros- 44 Hay v. Pruden, 69 N. W., 1137. thwait, 1-148. 45 Trustees v. Davenport, 7-213; s Lucas v. Ptekel, 20-490. Bennett v. Hetherington, 41-142. 54 Elliott v. Corbin, 4-564; Wor- 46 Callanan v. Shaw, 19-183; ster v. Oliver, 4-345. Clark v. Raymond, 84-251. 540 APPELLATE PBOCEEDIXGS. [ 1315. parries, 55 and from an order granting or refusing a new trial, 56 and in cases of mandamus. 57 1315, When an appeal will not lie. Except as otherwise stated, an appeal will not lie unless it appears that a judgment has been rendered. 58 Thus, an appeal will not lie from a verdict. 59 Nor will an appeal lie when the party complaining has accepted the benefit of an ad- judication; 60 nor when the judgment appealed from has been voluntarily paid; 61 nor from an order arresting judgment; 62 nor from an order punishing for con- tempt; 63 nor from an order requiring a paper showing an acceptance under the provisions of a will to be put on record; 64 nor from an order granting a rule to produce books and papers; 65 nor from rulings not affecting sub- stantial rights nor involving the merits of the case; 66 nor as a rule from an order or ruling on a motion to strike allegations as irrelevant or redundant, 67 but it is other- wise as to a motion to strike a cross-petition from the files. 68 In case of certain intermediate orders it is held an appeal will not lie until final judgment is rendered. Of this class are orders permitting the introduction of further testimony in an equity case, after it has been re- manded by the supreme court, 69 and a finding of facts, 70 and rulings on a motion to supress depositions, 71 and generally orders granting or refusing a change of venue. 72 55 Code, Sec. 2137. es Cook v. Chicago, R. I. & P. R. se Newell v. Sanford, 10-396; Co., 75-169. Caffery v. Groom, 10-548; Baldwin 66 Quinn v. Capital Ins. Co., 82- v. Foss, 71-389. 550; Chicago, R. I. & P. R. Co. v. 57 Dist. Twp. v. Ind. Dist., 72-657. Dey, 76-278; Roberts v. Malloy, 69 58 Green v. Rouen, 59-83; Groves N. W., 674; State v. Arns, 72-555; v. Richmond, 58-54. Ida County v. Woods, 79-148. ss Heath v. Groce, 10-591; Pitt- 67 Allen v. Church, 70 N. W., 127; man v. Pittman, 56-769. Allen v. Cook, 71 N. W., '534; eo Buena Vista County v. I., F. & Specht v. Spangesberg, 70-488. S. C. R. Co., 55-157; Ind. Dist. v. es Mahaska County State Bk. v. Dist. Twp., 44-201; M. & M. R. Co. Christ, 82-56. v. Byington, 14-572. 69 Garmoe v. Thompson, 65-323. ei Borgalthous v. Farmers, etc., TO Boyce v. Wabash R. Co., 63-70. 36-250; Hipp v. Crenshaw, 64-404. 71 Baldwin v. Mayne, 40-687. 62 Wallis v. Sparks, Morris, 20. 72 Allerton v. Eldridge, 56-709; es Code, Sec. 4468; Dunham v. Groves v. Richmond, 58-54; Horak State, 6-245; First Cong. Ch. v. v. Horak, 68-49; Edgerly v. Stew- Muscatine, 2-69. art, 86-87. ei In re Estate of Slauson, 82-366. 1316 J -1PPHLULTE PROOEEDIITOS. . 641 Nor will an appeal lie from an order overruling a mo- tion to dismiss proceedings under a writ of habeas" corpus; 73 nor from an order sustaining exceptions to in- terrogatories to be answered by the mother of a child in a bastardy proceeding. 74 In the following cases it seems no appeal will lie: When a party procured the judgment from which he seeks to appeal. 75 When a stay of execution is taken, 76 or from an order of continuance, 77 or when the court re- fuses to compel a member of the bar to prosecute a dis- barment proceeding, 78 or from an order requiring secur- ity for costs, 79 or when an intermediate order is one not contemplated by law. 80 Ordinarily error in intermedi- ate orders upon questions of practice, the admission of evidence and the like, from which a direct appeal can not be prosecuted, may be urged upon an appeal from the final judgment, except as stated in this section; 81 but to be thus raised the record must show that a final judg- ment was rendered. 82 And it seems one may elect, in cases where an appeal is allowed from an intermediate order, to appeal at the time therefrom, or to do so on ap- peal from the final judgment. 83 An appeal from the final judgment brings up for review all intermediate rulings to which exceptions are prop- erly taken. 84 A direct appeal will not lie from a ruling refusing to strike out part of a petition. 85 1316, What will amount to a waiver of the right to appeal. The right to appeal, when such right exists, may be waived by the acts of the party entitled thereto. Thus when a party after perfecting his appeal from a judgment, consents to the transfer of the cause to 73 Smith v. Bigelow, 19-459. so Battle v. Lowery, 46-49. 74 State v. Arns, 72-555. si Richards v. Burden, 31-305. TO Hughes v. Feeter, 23-547. 82 Shannon v. Scott, 40-629; Jor- 7 Code, Sec. 3998; Seachrist v. dan v. Henderson, 19-565. Newman, 19-323. ss Jones v. Chicago & N. W. R. 7T Jaffray v. Thompson, 65-323. Co., 36-68. 78 Byington v. Moore, 70-206; 84 Palmer v. Rogers, 70-383; Le- Code, Sec. 4101. sure Lumber Co. v. Mut. Fire ins. 7 Des Moines Valley, etc., v. Co., 70 N. W., 761. Henderson, 38-446. ss Specht v. Spangenberg, 70-488. 542 APPELLATE PEOCEEDIXQS. [ 1317. another court for trial he waives his appeal. 86 And he waives such right to appeal from a judgment when he brings an action in equity to enjoin its collection. 87 And an error in dismissing a former action is waived by bring- ing a new action for the same indebtedness. 88 But the fact that there is another remedy for the error complained of will not take away the right of appeal from an erron- eous judgment or decision in any case where such ap- peal is authorized. 89 Nor will the acceptance of a por- tion of the judgment admitted to be due prevent an ap- peal from that part of it claimed to be erroneous. 90 Nor will the acceptance by the county treasurer of a fine im- posed by a justice of the peace, deprive the State of the right to appeal. 91 Nor will the involuntary payment of a judgment estop the party from appealing. 92 So the ac- ceptance of a tender, in some cases, will not waive the right of appeal. 93 Nor will the issuing of an execution (even after transcript is filed in the supreme court) when nothing is realized thereon. 94 Nor will the filing of a transcript of the judgment in another county. 95 If the right of appeal has been waived the appeal will be dis- missed on motion. 96 An agreement not to appeal from a judgment in consideration of a reduction thereof is not contrary to public policy. 97 1317. Of the amount in controversy How de- termined. No appeal can be taken in any case in which the amount in controversy between the parties as shown by the pleadings does not exceed one hundred dollars, unless the trial judge certifies during the term in which the judgment is entered that the cause is one in which an appeal should be allowed, and upon such certificate Lillie v. Skinner, 46-329. s Dudman v. Earl, 49-37; see ST Gordon v. Ellison, 9-317. Jewell v. Reddington, 57-92. ss Liebrick v. Stable, 66-749, and * Hornish v. Peck, 53-157. No. 87. 95 Tama County v. Melendy, 55- sa Wilson v. Sborick, 21-332. 395. so Upton Mfg. Co. v. Huiske, 69- 96 ind. Dist. v. Dist. Twp., 44- 557. 201; see Crane v. Guthrie, 48-693 si State v. Tait, 22-140. " Lundon v. Waddick, 67 N. W., 92 Grim v. Semple, 39-570; Bur- 388. rows v. Stryker, 45-700. 1317.] APPELLATE PEOCEEDINGS. 643 being filed the same is appealable regardless of the amount in controversy. But this limitation does not af- fect the right of appeal in cases which involve any inter- est in real property. 98 Nor is the right of appeal affected by the remission of any part of the verdict or judgment returned or rendered. It will be seen it must appear from the pleadings that it was possible for the court properly to render judgment against one of the parties for more than one hundred dollars." And in determin- ing the amount the allegations of the pleadings and not the prayer will govern, 1 and when a, part of the claim is conceded the amount in controversy is the balance, 2 and this is so when by tender the claim is reduced below one hundred dollars, 3 and the amounts of an original claim and of a counter claim can not be added together to determine the amount in controversy. 4 If plaintiff's claim is admitted and a counter claim pleaded, it deter- mines the amount in controversy. 5 If the defendant claims a credit for more than one hundred dollars on a claim of less than that amount, but interposes no counter claim, the amount in controversy is the amount of plain- tiff's claim. 6 When the plaintiff claims more than one hundred dollars, but introduces no evidence in support of part of it, such part will be deemed abandoned and not considered in determining the amount in controversy. 7 s Code, Sec. 4110; Van Sickle Ormsby v. Nolan, 69-130; Harring- v. Downs, 72-624; Chilton v. ton v. Pierce, 38-260; Babcock v. C., R. I. & P. R. Co., 72-689; Dist. Board, etc., 65-110; Henkle v. Twp. v. Ind. Dist., 72-657; Rules, Keota, 68-334; Ruiter v. Plate, 77- Sec. 9; Thurston v. Lamb, 90-363; 17; Buckland v. Shephard, 77-329; Buckland v. Shephard, 77-329; Schultz v. Holbrook, 86-569; Fill- Schultz v. Holbrook, 86-569; Fill- more v. Hintz, 90-758; Thompson more v. Hintz, 90-758; Central City v. Jackson, 93-376. v. Treat, 70 N. W., 110; Hiatt v. i Cooper v. Dillon, 56-367; In- Nelson, 69 N. W., 553; Thompson corporated town, etc., v. Treat, 70 v. Jackson, 93-376; Tuthill Spring N. W., 110; Fullerton v. Cedar Co. v. Smith, 90-331; Brock v. Barr, Rapids & M. C. R. Co., 70 N. W., 70-399; Edwards v. Cosgro, 71-296; 106; Hiatt v. Nelson, 69 N. W., Koltz v. Messenbrink, 74-242; Grif- 553. fin v. Harriman, 74-436; State v. 2 Thompson v. French, 57-559. McCullough, 77-450; Dist. Twp. v. 3 Marlow v. Marlow, 56-299. Ind. Dist., 72-687; Farley v. Geishe- * Madison v. Spitznogle, 58-369; ker, 78-453; Geyer v. Douglass, 85- Fox v. Duneau, 60-321. 93; Democrat Pub. Co. v. Lewis, Alsip v. Hard, 38-697. 90-304. e Kuntz v. Hoffman, 65-260. sa Madison v. Spitznogle, 58-369; 7 Same as No. 6. 544 APPELLATE PROCEEDINGS. [ 1318, 1319. In case an appeal from a justice's court is consolidated with an action in the district court and the aggregate amount in controversy exceeds one hundred dollars, an appeal will lie. 8 Whether interest will be taken into consideration in determining the amount will depend on circumstances, 9 and costs will not be taken into consid- eration in determining the amount in controversy. 10 In replevin, where the defendant only claims an interest in the property less than one hundred dollars in value, such interest determines the amount in controversy. 11 1318. Of the form and requisites of the certifi- cate. The change in the statute renders all decisions construing that part of the old statute touching setting out the questions of law which it was desired to have de- cided of no further use and they have therefore been omitted. The provisions of the statute under considera- tion are constitutional. 12 1319. Of the time of making the certificate, etc. The certificate must be made before the adjournment of the term of court at which the judgment was entered. 13 The certificate can not, by agreement, be made in vaca- tion. 14 It can not be made until the case is finally dis- posed of. 15 If, however, it appears that the certificate was signed in time, it will be presumed, in the absence of anything to the contrary, that it was filed within the proper time. 16 The obtaining of the certificate is not a matter of right. 17 The appellant can not question the s Brock v. Barr, 70-399; Edwards Diat. Twp., 51-206; Independ- v. Cosgro, 71-296; and see Tuthill ence v. Purdy, 48-675; Rose v. Spring Co. v. Smith, 90-331. Wheeler, 49-52; Lomax v. Plet- Dryden v. Wyllis, 51-534; cher, 40-705; Rivers v. Cole, Holmes v. Hull, 48-177; Hays v. C., 38-677; Hershfield v. First Nat'l B. & Q. R. Co., 64-593; Klotze v. Bk., 39-699; Nicely v. Rogers, 39- Messenbrink, 74-242; Griffin v. 441; Hinesley v. Mahaska County, Harriman, 74-436. 69-511; Morrison v. Ross, 90-524; 10 Hakes v. Dott, 54-17; Braden- Sayles v. Smith, 71-241; Rules, berger v. Rigler, 68-300; Ardery v. Sec. 9. C., B. & Q. R. Co., 65-723; but see 1* Fallon V. Dist. Twp., 51-206. State v. McCullough, 77-450. Hickok v. Buell, 51-655. 11 Mohme v. Livingstone, 54-458; i Long v. C., M. & St. P. R. Co.. Davis v. Upright, 54-752-. 64-541. 12 Andrews v. Burdick, 62-714. " Meeker v. C., M. & St. P. R. 13 Code, Sec. 4110; Fallen v. Co., 64-631. 1320, 1321.] APPELLATE PROCEEDINGS. 545 correctness of the certificate signed by the judge, 18 but its sufficiency is a jurisdictional matter, and will be taken notice of by the court. 19 The cases cited are to be read in the light of the requirement of the present statute which permits the certificate to be made during the term. 1320. Of questions involving an interest in real estate. An action to foreclose a mechanic's lien was held not to be a question involving an interest in real estate. 20 Nor does the fact that it is sought to establish a lien, special or general, upon real estate, make the case one in- volving an interest in real property. 21 But when there is involved the question of the right of the public to occupy and use real estate as a highway, the case comes within the exception provided by the statute, and is appealable regardless of the amount in controversy. 22 An action to quiet title as against a sheriff's deed on the ground that the property was a homestead involves an interest in real estate. 23 1321. Of notice of appeal. An appeal is taken and perfected by the service of a notice in writing on the ad- verse party, his agent, or any attorney who appeared for him in the cause in the court below, and also upon the clerk of the court wherein the proceedings were had, stating the appeal from the same, or from some specific part thereof, defining such part. 24 But if the appeal be from part of an order, or from one of the judgments of a final adjudication, or from part of a judgment, it will not disturb, delay or affect the rights of any party to any judgment, or part of a judgment, or order, not appealed from, but the same will proceed as if no appeal had been taken. 25 The notice may be in the following form : is Hager v. Adams, 70-746. 23 Jones v. Blumenstein, 77-361. i White v. Beatty, 64-331; Beach 24 Kennedy v. Rosier, 71-671; v. Donovan, 74-543. Weiser v. Day, 77-25; Searles v. 20 Andrews v. Burdick, 62-714. Lux, 86-61; Geyer v. Douglass, 85- 21 Colyar v. Pettit, 63-97; Johns 93; Lesure Lumber Co. v. Mutual v. Pattee, 61-393; Brown v. Smith, F. Ins. Co., 70 N. W., 761; Code, 76-315. Sec. 4114; Rules, Sec. 13. 22 MrBurney v. Graves, 66-314. 25 Code, Sec. 4113. Vol. 1135 546 APPELLATE PROCEEDINGS. [ 1322. FORM OF NOTICE OF APPEAL. Title, Venue. To the above named plaintiff, or to , his attorney, and to , clerk of said court: You are hereby notified that the defendant in said action has ap- pealed from the judgment (or some specified part thereof, or from some specified order made in the cause), of the (name of court), rendered in favor of plaintiff, at the term thereof, on the day of , 18 , to the supreme court of Iowa, and that said appeal will come on for hearing and trial in said court at the term thereof, to be held at Des Moines, commencing on the day of , 18 . , attorney for defendant. This notice of appeal must be served at least thirty days, and the cause filed and docketed at least fifteen days before the first day of the next term of the court to which the appeal is taken, or the case will not be submit- ted at that term, unless by consent of parties. 26 And if the appeal is taken less than thirty days before the term, it must be so filed and docketed before the next succeed- ing term. 27 1322. Of service of the notice Perfecting the appeal. An appeal is not perfected until the notice above stated is served upon both the party and the clerk. 28 A notice not signed is not good. 29 A failure to specify the term of court will not be fatal. 30 The service of the notice is essential to give the su- preme court jurisdiction. 31 The service of all notices of appeal, is the same as is provided for an original notice in the district court, and they may be served by the same person and returned in the same manner, and the or- iginal notice of the appeal must be returned immedi- ately after service to the office of the clerk of the district court where the suit is pending. 32 All other notices con- 2 Code, Sec. 4116; Rules, Sec. so Geyer v. Douglass, 85-93. 15. siMcClellan v. McCleilan, 2-312; "Code, Sec. 4116; Rules, Sec. Lewis v. Miller, 4 G. Gr., 95; Hunt 15; Micldey v. Tomlinson, 79-383. v. Clark, 46-291; see Horst v. Wag- 28 Code, Sec. 4114; Rules, Sec. ner, 43-373; Phillips v. Follett, 13; Phillips v. Follett, 69-39. 69-39. 29 Doerr v. Southwestern Mut. L. 32 Code, Sec. 4115; Rules, Sec. 14; Assn., 92-39. Littleton Sav. Bk. v. Osceola Land 1322.] APPELLATE PEOCEEDINGS. 54:7 nected with or growing out of the appeal must be served and the return made in like manner, and filed in the office of the clerk of the supreme court, and all notices when filed become a part of the record. Service of the notice can not be made by a party to the action. 33 Under the law there is no provision for making service of such a notice by leaving a copy with a member of the party's family, 34 and service of the notice upon the wife of the at- torney for the appellee is not good. 35 Service may be made by a written acknowledgment made by the person on whom it is served. 36 Service on a guardian ad litem of an insane person has been held good. 37 Cases of ser- vice on attorney. 38 In an action against a city and the board of equalization, notice of appeal served on the mayor or city clerk is sufficient. 39 And it may be made by taking an acceptance of ser- vice signed by the party. Such acceptance signed by the deputy clerk with the name of his principal by him as deputy, is a good service. 40 Such acceptance may be in the following form: . FORM OF ACCEPTANCE OF SERVICE OF NOTICE OF APPEAL. Due and legal service of the within notice of appeal is hereby ac- knowledged and a copy of the same received this day of , 18, -, attorney for plaintiff. So, in a proper case service may be made by publica- tion as in other cases; and if the party is a non-resident, but has an agent residing in this State, service may be made on him, and will take the place of service by publi- cation, and the proof of such service must be made in the manner provided for the proof of service of original notice Co., 76-660; Brundage v. Cheno- se Sanxey v. Iowa City, etc., 68- worth, 70 N. W., 211; Christie v. 542. Life Indemnity, etc., Co., 82-360. 37 Shoemake v. Smith, 80-655. 33 Draper v. Taylor, 47-407; 38 Goodwin v. Milliard, 76-555; Marion County v. Stanfield, 8-406. Bruner v. Wade, 85-666. 34 Draper v. Taylor, 47-407. 39 Farmers Loan & Trust Co. v. . 85 Webster v. Carson, 69-243. City of Newton, 66 N. W., 784. 40 Same as No. 36. 548 APPELLATE PEOCEEDINGS. [ 1323. on non-resident defendants. 41 If service is not made on the clerk the appeal will be dismissed. 42 1323. Of filing the notice Waiving irregulari- ties, etc. While the notice should at once after service be filed with the clerk, yet it is not necessary. 43 When four years intervened between the taking of the appeal and the filing of the transcript, it was held that an addi- tional notice must be served on the appellee. 44 Where an appeal was had from an order substituting a third party in place of the sheriff against whom the ac- tion was brought, it was held that the appeal might be prosecuted against the sheriff without notice being served upon the substituted party, such party having joined the sheriff in asking for such substitution. 45 A notice of appeal from a judgment brings up all the ob- jections properly saved on the trial including the motion for a new trial. 46 An appearance in the supreme court waives all irregularities in taking the appeal. 47 But it will not give jurisdiction when the court below had none. 48 Nor will such appearance by filing an abstract waive objection on account of want of notice, if such ap- pearance is made before the expiration of the time for serving notice. 49 Nor will it waive the giving of notice of an appeal. 50 Service of notice of appeal is jurisdic- tional and the record must show such service or the case will be dismissed. 51 Where a board of supervisors is *i Code, Sec. 4115; Rules, Sec. *? Romaine v. Commissioners, 14; McClellan v. McClellan, 2-312. Morris, 357; Morrow v. Carpenter, lnd. Dist. v. Apperle, 76-238; 1 G. Gr., 469. McManus v. Smith, 76-576; Red- *s Long v. Long, Morris, 381. head v. Baker, 80-162; State v. *a Brier v. C., B. & P. R. Co., 66- Clossner, 84-401; Merchant v. Sole- 602. man, 63 N. W., 464; Wheeler & BO Piummer v. People's Nat'l Bk., Wilson Mfg. Co. v. Sterrett, 62 N. 73-752; Ash v. Ash, 90-229. W., 675; Ainslie v. Wynn, 65 N. W., BI Michel v. Michel, 74-577; Bow- 401. man v. Day, 86-746; Norwegian 43 Baldwin v. Tuttle, 23-66; Brier Plow Co. v. Bruning, 65 N. W., v. C., B. & P. R. Co., 66-602; Little- 984; Brandenburg v. Keller, 69 N. ton Sav. Bk. v. Osceola Land Co., W., 448; Kimball v. Barngrover, 76-660. 80-768; Talbot v. Noble, 75-167; Byington v. Robinson, 16-591. Smith v. Des Moines, 84-685; 45 Sunberg v. Babcock, 61-601. Names v. Names, 74-213; Roundy 4 Gulliher v. C., R, I. & P. R. v. Kent, 75-662; McManus v. Swift, Co., 59-416. 76-576; Whitton v. Fuller, 77-599; 1324.] APPELLATE PROCEEDINGS. 549 sued notice served upon the county auditor will not be good. 52 1324. Of the supersedeas bond. An appeal will not stay proceedings on the judgment or order, or any part thereof, unless the appellant causes to be executed, before the clerk of the court which rendered the judg- ment or order, by one or more sufficient sureties, to be approved by such clerk, a bond to the effect that the ap- pellant will pay to the appellee all costs and damages that shall be adjudged against the appellant on the ap- peal; also, that he will satisfy and perform the judgment or order appealed from, in case it shall be affirmed, and any judgment or order which the supreme court may ren- der or order to be rendered, by the inferior court, not ex- ceeding in amount or value the original judgment or or- der, and all rents or damages to property, during the pendency of the appeal, out of the possession of which the appellee is kept by reason of the appeal. If the bond is intended to stay proceedings on only a part of the judg- ment or order, it must be varied so as to secure the part stayed alone. When such bond has been approved by the clerk and filed, he must issue a written order, requir- ing the appellee and all others to stay all proceedings under such judgment or order, or so much thereof as is superseded, as the case may be. 53 In cases wherein the appellant has perfected his appeal to the supreme court, and the clerk of the lower court has refused for any reason to approve the appeal bond offered, or makes the penalty, therein too large, or the conditions thereof un- just, the appellant may apply to the district court or to State v. Closner, 84-401; First Nat'l State v. Dolezal, 68 N. W., 917; Bk. v. City Council of Albia, 86-28; Swigart v. Jackson County, 66 N. Farrell v. Muscatine, 85-753; Man- W., 881; Sanger v. Skidmore, 66 del v. Friedman, 85-734; Donnelly N. W., 176. v. Cedar County, 75-536; Schooley Polk v. Foster, 71-26. v. Globe Ins. Co., 76-78; Iowa City " Code, Sec. 4128; Rules, Sec. v. Johnson County, 68 N. W., 815; 32; Phelan v. Johnson, 80-727; State v. McNamara, 66 N. W., 192; Lindsay v. Clayton District Court, Flagler v. Cameron, 68 N. W., 580; 75-509; Allen v. Church, 70 N. W. t State v. Benard, 68 N. W., 433; 127; Allen v. Cook, 71 N. W., 534. State v. Foresythe, 64 N. W., 265; 550 APPELLATE PEOCEEDIXGS. [ a judge thereof, who shall fix the amount and conditions of the bond and approve the same. 54 The application verified by the affidavit of the appellant or his attorney must contain a brief statement of the nature of the action in which the appeal was taken, of the judgment or order appealed from, of the steps taken by the appellant with reference to his appeal, and of his giving, or offering to give, an appeal bond, of the action of the clerk of the court below with reference to such bond, and wherein he has acted wrongfully. Pending the disposition thereof the judge may, by a written order, recall and stay all proceedings under the order or judgment appealed from until the decision of the application. 54 The bond when approved must be filed with the clerk who must issue a written order to stay proceedings. 55 Such bond may be in the following form: FORM OF SUPERSEDEAS BOND. Know all men by these presents that we, , principal, and and , sureties, are held and firmly bound unto , in the sum of dollars, lawful money of the United States, well and truly to be paid to the said , his heirs, executors and assigns. The condition of this obligation is such that whereas, the said has appealed from the judgment (or order, identifying it) of the district court of the State of Iowa, in and for county, rendered on the - day of , 18 , in an action then pending in said court, wherein said was plaintiff and the said was defendant Now, if the said appellant shall pay to the said appellee all costs and damages that shall be adjudged against said appellant on said ap- peal, and shall also satisfy and perform the said judgment (or order) appealed from, in case it shall .be affirmed, and any judgment or order which the supreme court may render or order to be rendered by the said district court, and all rents, or damages to the property during the pendency of the appeal out of the possession of which the appellee is kept by reason of the appeal, then this obligation to be void, otherwise to remain in full force and virtue. Dated this day of , 18 . principal, sureties. (Add justification.) a* Code, Sec. 4132; Rules, Sec. 33. SB Code, Sec. 4132; Rules, Sec. 33. 1325.] APPELLATE PKOCEEDINGS. 551 Said bond must be approved in form heretofore given, and the sureties must justify as provided by law. When the judgment or order to be stayed is for the payment of money, the penalty should be at least twice the amount of the judgment and costs, but in other cases the condi- tion must be to save the appellee harmless from the con- sequences of the appeal. In no case can the penalty be less than one hundred dollars. 66 The appeal is not per- fected by the filing of the supersedeas bond alone; the notice must also be served, and until it is served on the clerk he need not recall an execution, or issue an order to stay proceedings thereunder. 67 The bond, though ir- regular in form, may still be sufficient, 58 and may be amended. 59 An order of discharge in a habeas corpus proceeding cannot be suspended by the giving of a super- sedeas bond. 60 1325. Of proceedings when bond is defective. Of the supersedeas. The appellee may move the court rendering the judgment or making the order appealed from or the supreme court or a judge of either court, if in vacation, upon ten days' notice in writing to appellant to discharge the bond on account of defect in substance or insufficiency in security, which motion, if well taken, must be sustained, unless appellant shall, within a day to be fixed in the order made and filed therein, give a new and sufficient bond as required by said order. If the new bond is not given, proceedings shall be had in the lower court as though no bond had been given in the first instance. 61 But another supersedeas may be issued by the clerk upon the execution before him of a new and lawful bond with sufficient sureties. 62 The supersedeas may be in the following form: 56 Code, Sec. 4134; Rules, Sec. 35. Whitehead v. Thorp, 22-425. Flynn v. Des Moines & St. L. R. 59 Mitchell v. Goff, 18-424. Co., 62-521. eo State v. Kirkpatrick, 54-373. 5- 'Pratt v. Western Stage Co., ei Code, Sec. 4133; Rules, Sec. 34. 26-241. 62 Code. Sec. 4133; Rules, Sec. 34, ss Field v. Schricher, 14-119; 553 APPELLATE PROCEEDINGS. [ 1325. FORM OF SUPERSEDEAS. The State of Iowa. To , greeting: Whereas has appealed from the judgment (or order, identify- ing it) of the district court of county, Iowa, rendered on the day of , 18 , in an action then pending wherein was plaintiff and was defendant; and whereas the said has filed in my office this day a supersedeas bond in said cause with sureties approved by me. Now, therefore, you are hereby commanded and required to stay any and all proceedings in said cause (or on the part superseded) from and after the date hereof, and until said appeal is finally disposed of and determined. Witness clerk of said court, with the seal thereof hereto af- fixed, this day of , 18. [Seal.] , clerk, etc. The taking of an appeal from a part of a judgment or order and the filing the bond does not cause a stay of ex- ecution as to that part of the judgment or order not ap- pealed from. 63 If an execution has issued prior to the filing of the bond the clerk must countermand the same. 64 Property levied on and not sold at the time the counter- mand is received by the sheriff must forthwith be deliv- ered to the judgment debtor. 65 Such countermand may be in the following form: FORM OF COUNTERMAND. The State of Iowa. To , sheriff of county, Iowa. Whereas, has appealed from the judgment (or order) of the district court in and for county, Iowa, rendered on the day of , 18 , in an action then pending in said court wherein was plaintiff and was defendant; and whereas, on the day of , 18 , and after the delivery to you of the execution issued on said judgment, the said filed in my office a supersedeas bond in said cause with sureties approved by me. Now you are hereby commanded to forthwith return said execution without proceeding further thereunder. Witness, etc. (as in last form). On receipt of the above the sheriff should return the 3 Code, Sec. 4129. GO Code, Sec. 4131; Swift v. Con- * Code, Sec. 4130; Rules, Sec. 32. boy, 12-444. 1326.] APPELLATE PROCEEDINGS. 553 execution, stating his acts done under it, and that it was countermanded. 1326. Who may appeal. In order to appeal, one must be a party to the record. 66 Nor are the parties for whose benefit an action is brought or defended parties in such a sense as to be entitled to appeal. 67 Nor will an appeal lie in behalf of one who has stayed execution on the judgment. 68 A part of several co-parties may ap- peal, but in such case they must serve notice of the ap- peal upon those not joining therein, and file the proof thereof with the clerk of the supreme court. 69 If this notice is not served in such cases, the appellate court will dismiss the appeal. The co-parties, on being served, may elect to join in the appeal, in which case they are entitled to all the benefits of the same, and may file an assignment of errors, and may argue the case. 70 Nor can a defendant appealing complain of errors affecting only his co-defendant. 71 The co-defendant who is noti- fied of an appeal is presumed to join in the appeal, unless he refuses so to do, and will be liable for his due propor- tion of the costs. 72 And co-parties refusing to join in the appeal can not afterward appeal, nor can they derive any benefit from the appeal, unless from the necessity of the case. 73 No appeal can be taken by a deceased party. 74 A party not appealing can have no relief. 75 Borgalthous v. Farmers, etc., Hawkeye Ins. Co., 77-343; Laprell 36-250; Ferguson v. Board, etc., 44- v. Janosh, 83-753; Fisher v. Chaf- 701; State v. Jones County Judge, fee, 64 N. W., 662; Brundage v. 11-11; Phillips v. Shelton, 6-545; Chenoworth, 70 N. W., 211; Ash v. see Webster v. C., R. & St. P. R. Ash, 90-229; Marshall County v. Co., 27-315; Yarish v. C. R., I. F. Knoll, 69 N. W., 1146; Epeneter v. & N. W. R. Co., 72-556. Montgomery County, 67 N. W., 93. eTCode, Sec. 3464; Fleming v. TO Barlow v. Scott, 12-63; see Mershon, 36-413; Fuller v. Un- Moore v. Held, 73-538. known, etc., 9-430; see White v. TI Eyre v. Cook, 9-185. Hampton, 13-259; In re Estate of Code, Sec. 4112; Rules, Sec. 11. Bagger, 78-171. 73 Code, Sec. 4112; Rules, Sec. 11; esWaterford v. Eads, 10-592. Alexander v. Bufflngton, 66-360; 69 Code, Sec. 4111; Rules, Sees. 10, Devoe v. Hall, 60-749; Butter v. 11; Hunt v. Hawley, 70-183; Moore Barkley, 67-491. v. Held, 73-538; Wright v.Mahaffey, T* Tracy v. Roberts, 59-624. 76-96; Kellog v. Colby, 83-513; TS Huff v. Olmstead, 67-598; Soukup v. Union Inv. Co., 84-448; Lamb v. Council Bluffs Ins. Co., Payne v. Ranbuisk, 82-587; Day v. 70-238. 554 APPELLATE PROCEEDINGS. [ 1327. 1327. Of the certification of the record, when necessary, and how obtained. No transcript is neces- sary in the absence of a denial of the abstract or of a cor- rection of the same by an amended abstract. No certifi- cation of the record is required unless ordered by the supreme court or a judge thereof, which order must be made upon an application in writing or by motion, des- ignating the matters and things of record desired to be included therein, and showing the necessity therefor. The order, if granted, must contain similar designations and show the parts to be given by an abstract of the orig- inal record and the portions to be by transcript, and may require any or all the matters to be presented by an amended abstract. The application and order made must be filed in the office of the clerk of the supreme court, who must transmit the order to the clerk of the lower court and send a notice or a copy thereof to the ap- pellant or to his attorney. The order must be attached to and returned with the record certified, and be submit- ted with the papers in the case. The appellant, upon a notice or copy of the order being received by him, or his attorney, must, within five days, unless otherwise or- dered, pay or secure to the satisfaction of the clerk of the lower court, his fees and expenses for preparing and for- warding the record ordered, and upon failure to do so, the appeal, upon motion, may be dismissed or the judg- ment affirmed as the appellee may elect. 76 When certifi- cation of the record is required, the designated papers, notices, depositions, exhibits identified as evidence, no- tice of appeal with return or acceptance of service thereon, and any other paper filed in the case, or any part thereof, may be transmitted to the supreme court in the original form, or by a transcript of the same, except- ing that the short-hand reporter's translation of his re- 76 Code, Sec. 4122; Rules, Sec. 23; & Frank Co. v. Miller, 87-426; Win- Simplot v. Dubuque, 49-630; Van ter v. Central Iowa R. Co., 80-443; Ormer v. Harley, 71 N. W., 241; Taylor v. C. M. & St. P. R. Co., 80- Hampton v. Moorehead, 62-91; Aus- 431. tin v. Bremer County, 44-155; Goll 1327.] APPELLATE PEOCEEDINGS. 555 port shall be transmitted in its original form, but all en- tries of record must be certified by transcript. The clerk of the trial court must verify his return whether it be of the record or transcription thereof by his certificate, under seal, distinguishing between originals and tran- scripts, and such certification so made will constitute a part of the record in the supreme court. 77 FORM OF APPLICATION FOR AN ORDER OF CERTIFICATION OF THE RECORD. In the Supreme Court of Iowa, Term, 18 . , appellant, ) Motion for an order of cer- tification of the record, appellee. To the Honorable Supreme Court of the State of Iowa (or to , judge of the supreme court of the State of Iowa). The above named appellant states that on the day of , 18 , he filed with the clerk of this court a full, complete and correct abstract of record in this case, embracing the evidence therein. That on the day of , 18 , the appellee in said cause served u'pon this appellant's counsel, an amended abstract in said cause alleging that this appellant's abstract was unfair and setting forth therein a large amount of evidence which appellee claims was offered and intro- duced on the trial of said cause. That on the day of , 18 , appellant filed in this court a printed denial of appellee's amended ab- stract alleging therein that said appellee's amended abstract is unfair and untrue, and that the evidence therein set forth as having been of- fered and introduced in evidence was never offered or introduced in evi- dence. Said pretended evidence so set out in appellee's amended abstract would, if true, be very material in the determination of said cause. Appellant therefore moves the court for an order for tne certifica- tion of the record in the case from the district court, the said certification to embrace the following matters and things of record to wit: (here set out specifically just what part of the record it is desired to have certified). Appellant alleges that said certification of the record is necessary as said record will fully sustain appellant's denial of appellee's amended abstract. , attorneys for appellant. Upon examination of the application the court (or judge) will, if a proper showing is made, make an order Code, Sec. 4123; Rules, Sec. 24; 3-207; Blanchard v. Devoe, 80-521; Cox v. Macy, 76-316; Pilkey v. McArthur v. Shultz, 78-364; State Gleason, 1-85; Conrad v. Baldwin, v. Hall, 79-674. 556 APPELLATE PROCEEDIXGS. [ 1328. in pursuance of rule 23, which may be endorsed upon the application, and may be in the following form: FORM OF ORDER FOR CERTIFICATION OF THE RECORD. On examination of the within application it is ordered that the clerk of the district court of county, Iowa, certify to this court (here follow with a specific description of the parts of the record de- sired to be certified and designate what part shall be by abstract and what by a transcript of the original record). , chief justice. (or , judge, as the case may be.) 1328. Of denials of the transcript, and the per- fection of the record. A transcript may be denied; and when such denial is made it must be as specific as the case will permit. The trial court, the supreme court, or a judge of either court, may make any orders neces- sary to secure a perfect record or transcript thereof, upon a showing by affidavit or otherwise and upon such no- tice as the court or judge may prescribe. 78 The decisions below cited were made under the old statute which was much different from the present law. Under the prior law it was held that matters not appearing in the tran- script or record would not be considered, nor could they be made a part thereof by affidavits, this is the case as to improper remarks of counsel, and misconduct of the jury; 79 or in an action tried by ordinary proceedings by a mere certificate of the clerk. 80 Nor can the record or 78 Code, Sec. 4120; Rules, Sec. 26. Faulks, 83-423; Neitz v. Hilker, 84- 7 Bell v. Pierson, Morris, 21; 459; Underwood v. Lombard Inv. Powell v. Spaulding, 3 G. Gr., 417; Co., 84-25; Foster v. Hinson, 75- Perkins v. Testerment, 3 G. Gr., 291; Short v. C., M. & St. P. R. Co., 207; Pilkey v. Gleason, 1-85; Mus- 79-73; Jameson v. Weaver, 84-611; grave v. Brady, Morris, 456; Blan- Garrettson v. Ferrall, 92-778; Ruth chard v. Devoe, 80-521; McArthur v. Zimbleman, 68 N. W., 895; Siate v. Shultz, 78-364; State v. Hall, 79- v. Louderbeck, 65 N. W. ( 158; El- 674; State v. demons, 78-123; dridge v. Stewart, 66 N. W., 891; Knoebel v. Wilson, 92-536; Little State v. Helm, 66 N. W., 751. Sioux Sav. Bk. v. Freeman, 93-426; so Jordan v. Quick, 11-9; Garber Nelson v. C., M. & St. P. R. Co., v. Morrison, 5-476; State v. Jones 77-405; Rosenbaum v. Partch, 85- County, 11-11; Harmon v. Chand- 409; Pitts v. Lewis, 81-51; Barber ler, 3-150; Daniels v. Gower, 54- v. Sott, 92-52; Ford v. Easley, 88- 319; Keller v. Killion, 9-329; Pat- 603; State v. Black, 89-737; Light ter v. Wooster, 10-334; Knight v. v. Chicago, M. & St. P. R. Co., 93- Kelly, 10-104; Holmes v. Budd, 11- 83; State v. Kennedy, 77-208; Cox 186; McArthur v. Shultz, 78-S64; v. Macy, 76-316; Lookabill v. Barber v. Scott, 92-52; Ford v. 1329.] APPELLATE PEOCEEDIXGS. 557 the recitals in a bill of exceptions be contradicted by a certificate of the judge. 81 The bill of exceptions in an action tried by ordinary proceedings should be brought to the supreme court by copy, but an error in that respect will only work a con- tinuance in order to obtain a corrected transcript. 82 But a bill of exceptions not embraced in the record, nor prop- erly certified as a part of it, will not be considered. 83 No transcript is necessary in any case where it is waived by the parties, nor unless the parties in their abstracts fail to agree as to the record, nor unless the correctness of appellant's abstract is denied, in which case the question in controversy must be determined by an inspection of the transcript, which must be ordered by the court or some judge thereof. 84 And as abstracts are required in all cases, the court will not examine a transcript where no exceptions are taken to the abstract. 85 In practice transcripts are not often required, as the parties usually agree on an abstract embodying all of the record that they wish to take up. As to what is a part of the record, and when a bill of exceptions is necessary reference is made to the chapter on exceptions and bills of excep- tions. 1329. Of certifying the records in an equity case. Papers properly certified by the clerk will be pre- sumed to have been filed in the case. 88 If the evidence is not certified or identified it will be stricken out on mo- tion. 87 NOT will the court try the case anew where the certificate does not properly identify the evidence. 88 As Easley, 88-603; State v. Black. 89- ton v. Moorhead, 62-91; Austin v. 737; Neitz v. Hilker, 85-459; Jame- Bremer County, 44-155. son v. Weaver, 84-611; Corlis v. ss Montgomery County v. Am. Connable, 74-58. Em. Co., 47-91; Barnes v. Ind. i Pearson v. Maxfield, 47-135; Dist, 51-700; State v. Smouse, 49- Dedric v. Hopson, 62-562; Connor 634; Holmes v. Lucas County, 53- v. Long, 63-295; McArthur v. 211. Shultz, 78-364; Cox v. Macy, 76-315. ss Mays v. Deaver, 1-216. 82 Fernow v. D. & S. R. Co., 22- ST Brackett v. Belknap, 41-592; 528. see Shear v. Brinkman, 72-698. ss State v. Leis, 11-416; Wads- ss Wetherell v. Goodrich, 22-583; worth v. First Nat'l Bk., 73-425. Davenport v. Ells, 22-296; Grant v. s* Rules, Sees. 23, 24, 26; Hamp- Grant, 46-478; Teague v. Fortsch, 558 APPELLATE PBOCEEDIXGS. [ 1330. to what is a sufficient certification. 89 As to the manner of making matters of record and especially as to the re- porter's notes and how they and the translation of them must be certified, and when filed, and how exhibits must be identified therein consult the following cases, also chapter on exceptions and bills of exceptions. 90 The cer- tificates referred to in this section may be in the follow- ing forms: FORM OF CERTIFICATE TO DEPOSITIONS WHEN THE ORIGINAL DEPOSITION IS SENT UP. State of Iowa, ) County, f S I, , clerk of the district court of the State of Iowa in and for said county, hereby certify that the within (or foregoing) depositions being the original depositions filed in said cause (or other papers) were (or was) read in evidence on the part of the plaintiff, (or defendant) on the trial of (give title of cause) before said court, at the term thereof, 18. [Seal.] , clerk, etc. FORM OF CERTIFICATE TO A TRANSCRIPTION OF THE RECORD IN AN EQUITY CASE. State of Iowa, County, f 8S> I, , clerk of the district court of the State of Iowa, in and for county, hereby certify, that the foregoing is a full, true and per- fect transcript of the record in the above entitled cause, as fully as the same remains on file and of record in my office; and I further certify that the transcript of the depositions and papers certified by me as hav- ing been used in evidence on the trial of said cause, marked respectively, exhibits A, B, C, etc., constitutes a complete transcript of all the evi- dence offered, received or used in said cause on the trial thereof in said court. Witness, etc. (as in preceding form). 1330. Of the form of the transcript. When a transcript is required it may be in the following form : 66 N. W., 1056; Runge v. Hahn, v. Lowe, 40-220; Richards v. 75-733. Lounesbury, 65-587; De Long v. ss Ticonic Bk. v. Harvey, 16-141: Lee, 73-53; Lutz v. Aylesworth, 66- Davenport v. Ells, 22-296; Grant v. 629; Royer v. Foster, 62-321; John- Grant, 46-478; Cross v. B. & S. W. ston v. McPherran, 81-230; Blan- R. Co., 58-62; Chambers v. Ingham, chard v. Devoe, 80-521; Neitz v. 25-222; Teague v. Fortsch, 66 N. Helker, 85-743; Hammond v. Wolf, W., 1056; Runge v. Hahn, 75-733 78-227; Richardson v. Gray, 85- aoQaylord v. Taft, 53-756; Lowe 149; Fleming v. Stearns, 79-256. 1330.] APPELLATE PKOCEEDLNGS. State of Iowa, j County of sa ' In the district (or superior) court of Iowa, at a term begun and holden in the county of on the day of , A. D. 18 , before J. H. G., judge of the judicial district (or judge of the (superior court) of the State of Iowa. ..B. i vs. I .D. f A. B. vs. C Be it remembered that heretofore, to wit: on the day of , A. D. 18 , a petition was filed in the office of the clerk of the dis- trict (or superior) court, in and for the county of in words and figures following, to wit: (Here insert the petition in full.) (Proceed in the same manner in relation to whatever paper is filed, such as the original notice, or a petition for attachment, etc. If the cause has come from another county by a change of venue, begin as above: "Be it remembered," and state in like manner all that was done in the county from which the venue was changed.) And afterward th'ere was filed in the office of the said clerk a notice in the words and figures following, to wit: (Here insert the notice in full.) (Copy all indorsements on the face of the transcript, or copy or record, and not upon the back of the leaf.) Upon which (or attached to which) was a return as fallows: (Copy the officer's return, with all indorsements in full; if the suit be by at- tachment, copy the petition or affidavit, writ or attachment, bond, no- tice, return, etc.) And afterward, to wit: on the day of , A. D. 18 , there was filed in the office of the said clerk, an answer in words and figures following, to wit: (Here insert answer in full.) (Should the clerk doubt what the paper is let him call it a "paper in the words and figures following," etc. Where a paper is filed in term time, add the day of the term to the day of the month, as in the next form. A. B. vs. C. D. And afterward, to wit: on the day of , A. D. 18 , it being the day of the term of said court, the said A. B. (or plaintiff) filed the following demurrer to the answer of the said C. D. (or of the said defendant) to wit: (Here insert the demurrer in full.) (If a party files more than one pleading at the same time, they should be numbered in their legal order, as for instance a demurrer, and answer, and the transcript may say (stating the date), the 560 APPELLATE PROCEEDINGS. [ 1330. said C. D. (or defendant) filed his demurrer, plea and answer, which are filed subject to the rule.) A. B. vs C . B. vs. I . D. J And now, on this day of , A. D. 18 , it being the day of the said term thereof, this cause coming on for hearing on the plaintiff's demurrer to the defendant's answer, (copy the entry of the proceedings of the court, sustaining or overruling the demurrer). And afterward on the day of the said , it being the day of the said term, the said plaintiff filed his reply in the words and figures following, to wit: (Here set out reply in full.) And afterward on the same day the said defendant filed motion and affidavit for a continuance, as follows, to wit: (Here set out copy of motion and affidavit.) And the same being now heard and considered by the court, the said motion is sustained, and if is ordered that this cause be continued until the next term of the court (at the cost of the defendant). In the district (or superior) court, county. B. ) fs. > . D. > A. B. vs. C Term, A. D. 18. And now on this day of , it being the day of said term, this cause coming on for trial, came a jury, to wit: , twelve good and lawful men, who were sworn well and truly to try the issue between the said parties, and a true verdict render, accord- ing to the law and evidence given them in court. The jury retired to con- sider on their verdict, and afterward, on the same day, the jury returned into court and rendered its verdict, as follows: (Here insert in full the verdict as rendered.) (Or if the jury does not return until the next day.} A. B. . B. > rs. f . D. ' vs C And afterward, on the day of , A. D. 18, the Jury in the foregoing cause returned into court and rendered its verdict as fol- lows: (Here insert in full the verdict as rendered.) ..B. 1 rs. r . D. ' A. B. vs, C And afterward, on the day of , A. D. 18 , being the day of said term, the shorthand reporter filed his report in writ- ing, or in shorthand (as the case may be) certified as required by law, the translation of which, duly certified, was filed on the day of 1331.] APPELLATE PROCEEDINGS. 561 , A. D. 18, and is as follows: (Here attach the original transla- tion unless otherwise directed by order of the supreme court, or a judge thereof.) A. B. vs. C. D. Now on this day of , A. D. 18, the plaintiff filed his motion for a new trial, to wit: (Here insert in full the motion for a new trial.) A. B. vs. C. D. And now, on this day of , A. D. 18 , this cause coming up for a hearing on the motion of the plaintiff for a new trial, it is con- sidered by the court, that the same be overruled (or, as the case may be). (Then add the final entries of record, comprising final judgment, etc., and certificate of clerk.) Note: The foregoing form is only an example, and is to be varied according to the circumstances. The actual facts of the case will dic- tate what is to be done, but in all cases it is to be done substantially in like manner with the above, giving the proper order and date of the filing of papers and incorporating them at the proper date into the pro- ceedings of the court. When the order made by this court, or a judge thereof, pursuant to rules 21, 22 and 23, requires but a part of the record to be transcripted, the foregoing form should be so modified as that it will include only those matters di- rected to be certified. All others, except the mere formal parts, must be omitted. The certificate to the foregoing transcript may be as follows : FORM OF CERTIFICATE TO TRANSCRIPT. State of Iowa, County, f ss - I, , clerk of the district court of the State of Iowa, in and for county, hereby certify that the foregoing is a true and perfect transcript of the record in the above entitled cause (or so much thereof as is required to be certified), as fully as the same remains of record in my office. In witness whereof, etc. 1331. Of correction of the record, etc. Mistakes or omissions in the record, if any, must be corrected by Vol. 1136 562 APPELLATE PROCEEDINGS. [ 1332. proper proceedings. The lower court, the supreme court, or any judge of either court may make necessary orders to secure a perfect record or a transcript thereof, upon a proper showing and on such notice as may be pre- scribed. 1 And the written evidence in an equity case being lost may be supplied by substitution. 2 And the court below, after an appeal is taken, has jurisdiction and power to order a lost record substituted, or correct its record by supplying omissions, or to do any other act necessary to enable the appellate court to review the alleged errors of the trial court. 3 Evidence may be stricken from the record when not properly certified. 4 If the record, though partial, is sufficient to clearly show the ruling appealed from, the question raised will be de- cided. 5 Where appellant's counsel, without leave, re- moved certain exhibits from the transcript after it had been used by the court below, but the transcript as certi- fied appears to contain all of such exhibits, and no appli- cation was made below to correct the record, a motion to strike out the evidence because of the alleged mutilation of the record will be denied. 6 1332. Of inspection of original papers. When a view of an original paper or exhibit in an action may be important to a correct decision of an appeal, the court may order the clerk of the court below to transmit the same, which he must do in the manner provided for the transmission of certifications of the record. 7 iMahaffy v. Mahaffy, 63-55; * Becker v. Becker, 50-139; Maxon Brier v. C., B. & P. R. Co., 66-602; v. C., M. & St. P. R. Co., 67-22C; Campbell v. Long, 20-382; Stiles v. Buckwalter v. Craig, 24-215; Tif- Botkin's Estate, 30-60; Dobbins v. fany v. Henderson, 57-490; Goff v. Lusch, 53-304; Morris v. Steele, 62- Hawkeye, etc., 62-691; Eno v. 228; Tomlinson v. Funston, 1 G. Hunt, 8-436. Gr., 544; Tasker v. Marshall, 4-544; * Brackett v. Belknap, 40-704; Bartle v. Des Moines, 37-635; Alexander v. McGrew, 57-287. Hughes v. Stanley, 45-622; Code, e Hall v. Smith, 15-584; see Balm Sec. 4093; Rule, Sec. 26; Reynolds v. Nunn, 63-641. v. Sutliff, 71-549; De Wolfe v. Tay- e van Ormer v Harley 71 N W lor, 71-648; Code, Sec. 4127. 241. 2 L/oomis v. McKenzie, 48-416; i Code, Sees. 4122, 4125; Rules, Steiner v. Steiner, 49-70; State v. Sec. 25; Wing v. Stewart, 68-13. Dillard, 52-479; Coffeen v. Ham- mond, 3 G. Gr., 241. 1333.] APPELLATE PROCEEDINGS. 563 1333. Of the form and requisites of the abstract. All causes will be submitted upon abstracts of the par- ties except when a controversy arises as to the record. 8 The fact that the paper filed and intended as an abstract is not so entitled or designated will not prevent its being so considered. 9 It should not include questions and answers without regard to their materiality. 10 Nor should writs, services and other writings not material to the case be set out in it. 11 But it should show the fact of service of the notice of appeal, and it must show the name of the judge presiding at the trial. 12 If the evi- dence is not abridged in the abstract as required by the rules of the supreme court, or when such abstract in- cludes matters not properly a part of the record, the costs so improperly made will not be taxed up in favor of the party making them though he be successful. 13 At least thirty days before the day assigned for the hearing of a cause, the appellant must serve upon the attorney for each appellee a printed copy of so much of the ab- stract of the 'record as may be necessary to a full under- standing of the questions presented for decision, which must be prepared as required by rules 67, 68 and 69 of the supreme court. He must also, fifteen days before the first day of the term for which the cause is to be docketed for trial, file with the clerk twelve copies of said ab- stract, and no cause will be heard until thirty days after such service and fifteen days after such filing with the s Rules, Sees. 20, 21, 22, 23, 24, 25, Byam, 59-52; Baldwin v. Foss, 71- 26, 27, 28; Code, Sec. 4118. 389; Jons v. Campbell, 84-557; Noble v. Des Moines & St. L. R. McDermott v. Iowa Falls & S. C. Co., 61-637. R. Co., 85-180; Schneitman v. 10 Vaughn v. Smith, 58-553; Too- Noble, 75-120; King v. Mahaska tie v. Taylor, 64-629. County, 75-329; Albrosky v. Iowa 11 Tootle v. Taylor, 64-629. City, 76-301; Comes v. C., M. & St. 12 Rules, Sees. 66, 68, 117; Phil- P. R. Co., 78-391; Benton County lips v. Follett, 69-39; Kissinger v. Bk. v. Walker, 85-728; Meyer v. Council Bluffs, 72-471. Houck, 85-319; Reed v. Lane, 65 N. is Byerlee v. Mendel, 39-382; Dye W., 380; Boggs v. Douglass, 89-150; v. Young, 55-433; Poole v. Hintra- Lindsay v. Carpenter, 90-529; Mll- ger, 60-180; Donahue v. McCosh, more v. Hintz, 90-758; Burke v. 70-733; Chandler v. Freemont Dillon, 92-557; Gutherless v. Rio- County, 42-58; Macomber v. Peck, ley, 67 N. W., 109; Fitzgerald v. 39-351; Martin v. Cole, 38-699; Nolan, 71 N. W., 224; Rules, Sec. York v. Clemens, 41-95; Brown v. 95; Code, Sees. 4118, 4120. 564 APPELLATE PBOCEEDINGS. [ 1333. clerk, unless advanced by order of the court; nor will the cause be docketed unless this and other rules are complied with. In case of cross-appeals, the party first giving notice of appeal will be considered the appel- lant. 1 * If it appear from an inspection of the abstract that the appellant has negligently, or intentionally, failed to comply with the rule requiring only so much of the record as may be necessary to a full understanding of the question presented for decision to be included therein, the court may, in its discretion, order a new ab- stract prepared in conformity with such rule or affirm the judgment of the lower court without considering the appeal. 15 The abstract so filed will be presumed to contain the record unless denied or corrected by a subsequent ab- stract. Every denial must point out as specifically as the case will permit the defects alleged to exist in the abstract. A denial by the appellee will be taken as true unless the appellant sustains his abstract by a certification of the record. Should the appellee deem the appellant's ab- stract incorrect or unfair, he may prepare such addi- tional abstract as he deems necessary to a full under- standing of the questions presented to the court for de- cision. A denial of the appellant of such additional ab- stract, if not confessed, will be disregarded unless sus- tained by a certification of the record. The appellee must serve one printed copy of his additional abstract or denial on each appellant or his attorney, and deliver twelve printed copies thereof to the clerk within ten days after receiving the appellant's abstract, and a denial by the appellant must be served on the appellee, and twelve printed copies thereof delivered to the clerk within five days after service of the additional abstract. 18 Under prior statutes and rules it was held that a failure to file an abstract or argument within the time re- i* Rule, Sec. 20. i Code, Sees. 4118, 4120; Rule, IB Code, Sec. 4118; Rule, Sec. 21. Sec. 22. 1333.] APPELLATE PKOCEEDINGS. 565 quired by the rules would not be ground for striking it from the files and taxing costs to such failing parly when the submission of the cause was not delayed thereby, or the other party had not been prejudiced. 17 An abstract and argument filed after the submission of the case on a transcript of the record will not be consid- ered except on a proper showing. 18 All abstracts, denials of abstracts, briefs, arguments and petitions for rehearing must be printed upon un- ruled writing paper, with type commonly known as small pica, leaded lines, the printed page to be four inches wide by seven inches long, with a margin of two inches ; but the type in which extracts are printed may be small pica solid, or brevier with leaded lines. The first page of the abstract, denial, brief or argu- ment, must show the title of the cause, designating the appellant and the appellee, the term of the supreme court to which the appeal is brought, the court from which the appeal is taken, the name of the judge who presided at the trial, and the names of the attorneys for both the appellant and appellee. The abstract must be accompanied by a complete in- dex of its contents. 19 Abstracts of record must be made substantially in the following form: IN THE SUPREME COURT OF IOWA, January Term, 18 . John Doe appellant, J Appellant's Abstract of Record. Richard Roe, appellee, J , J ( " In E * uii ?" or " At Law '"> 17 Palo Alto County v. Harrison, v. Hutchinson, 88-320; Boggs v. 68-81; Doolittle v. Doolittle, 78- Douglass, 89-150; Doerr v. South- 691; Wilson v. Daniels, 79-132; western Mutual L. Ins. Co., 92-39; Spencer v. Moran, 80-374; Lathrop Croddy v. C., R. I. & P. R. Co., v. Doty, 82-272; Thomas v. Me- 91-598; Gregg v. Spencer, 65 N. W., Donald, 77-126; Scholl v. Brad- 411; Taylor v. C., M. & St. P. R. street, 85-551; Citizens State Bk. v. Co., 80-431; McDivitt v. Des Moines Council Bluffs Fuel Co., 89-61S; St. Ry. Co., 68 N. W., 595. Aultman & Taylor Co. v. Shelton, is State v. Windahl, 64 N. W., 90-288; Briggs v. Coffin, 91-329; 420. Bowman v Western Fur Mfg. Co., i State v. Abegglen, 69 N. W., 64 N. W., 775; Foley v. Tipton 256. Hotel Assn., 71 N. W., 236: Peck 566 APPELLATE PROCEEDINGS. [ 1333. Appeal from VariBuren District Court. John Smith, Judge.20 J. C. K. for the appellant. H. H. S. for the appellee. On the - - day of - , 18, the plaintiff filed in the Van- Buren district court a PETITION stating his cause of action as follows: (Set out all of petition necessary to an understanding of the ques- tions to be presented to this court, and no more. In setting out ex- hibits, omit all merely formal irrelevant parts, as, for example, if the exhibit be a deed or mortgage and no question is raised as to the ac- knowledgment, omit the acknowledgment. When the defendant has appeared it is useless to encumber the record with the original notice or the return of the officer.) On the day of , A. D. 18, the defendant filed a DEMURRER to said petition setting up the following grounds: (State only the grounds of demurrer, omitting the formal parts. If the pleading was a motion, and the ruling thereon is one of the ques- tions to be considered, set it out in the same way, and continue.) And on the day of , 18 , the same was submitted to the court, and the court made the following rulings thereon: (Here set out the ruling.) (In every instance let the abstract be made in the chronological order of the events in the case let each ruling appear in the proper connection. If the defendant pleaded over and thereby waived his right to appeal from these rulings, no mention of them should be made in the abstract, but it should continue.) And on the day of , 18 , the defendant filed his ANSWER to the petition, setting up the following defenses: (Here set out the defenses, omitting all formal parts. If motions or demurrers were interposed to this pleading, proceed as directed with reference to the petition. Frame the record so that it will properly present all questions to be reviewed and raised before issue is joined. When the abstract shows issues joined, proceed.) BILL OF EXCEPTIONS. On the day of , 18, said cause was tried to a jury (or the court, as the case may be) and on the trial the following proceedings were had: sopitkin v. Peet, 64 N. W., 793. 1333.] APPELLATE PROCEEDINGS. 567 (Here set out so much of the evidence and proceedings as is neces- sary to show the rulings of the court to which exceptions were taken during the progress of the trial.) INSTRUCTIONS. After the evidence and the arguments of counsel were concluded, the plaintiff (or defendant, as the case may be) asked the court to give each of the following instructions to the jury. (Set out the instructions referred to, and continue.) Which the court refused as to each instruction, to which said several rulings the plaintiff (or defendant) excepted at the time, and thereupon the court gave the following instructions to the jury: (Set out the instructions.) To the giving of those numbered (give the number) and to the giv- ing of each thereof the plaintiff (or defendant) at the time excepted. VERDICT. On the day of , 18 , the jury returned into court with the following verdict: (Set out the verdict.) MOTION FOR NEW TRIAL. On the day of , 18 , the plaintiff (or defendant) filed a motion praying the court to set aside the verdict and grant a new trial upon the following grounds: (Set out the grounds aforesaid for the new trial.) On the day of , 18 , the court made the following ruling upon said motion: (Set out the record of the ruling.) JUDGMENT. On the day of , 18 , the following judgment was en- tered: (Set out the judgment entry appealed from.) On the day of , 18 , the plaintiff perfected an appeal to the supreme court of the State of Iowa, by serving upon the defendant and the clerk of the district court of Van Buren county a notice of appeal. (If supersedeas bond was filed, state the fact.) ASSIGNMENT OF ERRORS. And the appellant herein says there is manifest error on the face of the record in this: (Set out the errors assigned.) 21 21 Rules, Sees. 66, 67, 68. 568 APPELLATE PBOCEEDIXQS. [ 1334, 1335. This outline is presented for the purpose of indicating the character of the abstract contemplated by the rule, which, like all the rules, is to be substantially complied with. Of course no formula can be laid down applicable to all cases. The rule to be observed in abstracting a case is: Preserve everything material to the questions to be decided, and omit everything else. The opinion of the trial judge is a proper, though not an essential part of the record on appeal. 22 1334. Of the construction and modification of rules. When, by reason of peculiar circumstances, the foregoing rules relating to the abstract, preparation, and argument of causes, ought to be waived or modified in any case, the party desiring such waiver or modification may, upon reasonable notice to the adverse party, apply to any judge of this court in vacation, or to the court in term time, for an order directing the waiver or modifica- tion desired. The application must be in writing, and set out the peculiar facts relied upon by the applicant, and be verified by the party, or a person having knowl- edge of the facts, and certified by counsel as being true and made in good faith. The order upon such applica- tion must be in writing, and be filed with the clerk of this court In no case will the rules be waived or modified upon agreement of counsel alone. 23 1335. When the appeal will be dismissed or the judgment affirmed. If an abstract of the record is not filed by appellant thirty days before the second term after the appeal was taken, unless further time is given by the court, or a judge thereof, for cause shown, the ap- pellee may file an abstract of such matters of record as are necessary, or may file a copy of the final judgment or order appealed from, notice of appeal and return of ser- vice thereof, certified by the clerk of the trial court, and 22 Gregg v. Spencer, 65 N. W., 63 N. W., 665; McLean v. Ficke, 62 411; Mellerup v. Travelers Ins. Co., N. W., 753. 23 Rules, Sec. 90. 1335.] APPELLATE PEOCEEDIXGS. 569 cause the case to be docketed, and the appeal upon mo- tion will be dismissed, or the judgment or order af- firmed. 24 If errors are not assigned and filed with the clerk of the supreme court, and a copy of the same served on the appellee or his attorney ten days before the first day of the trial term, the appellee may have the appeal dismissed or the judgment or order affirmed, unless good cause for such failure is shown. 25 Under the code of 1873 it was provided that no appeal will be dismissed or the judgment of the court below affirmed, because the cause was not docketed, or transcript or abstract filed, if it is made to appear that the appeal was taken in good faith and not for delay, or if, from the conduct of the ap- pellee or his counsel, appellant was induced to believe that no motion to dismiss or affirm would be made. 28 This provision is not retained in the present code. The objection that appellant has not filed a transcript must be raised by motion, and not after submission upon argument. 27 Where there is an issue as to the suf- ficiency of the abstract the burden is on appellant to produce a transcript of the record, and if he fails to do so, the appeal will be dismissed. 28 Under prior statutes it was held that if the appellee is served with the abstract and does not then or within a reasonable time thereafter indicate to appellant that he desires a transcript, but insists thereon at the term when the cause is to be submitted by filing a motion to dismiss or affirm, time will be given the ap- pellant to procure a transcript, and a continuance, if necessary, will be granted for that purpose. 29 And that an appeal would not be dismissed on motion for failure to file a transcript, but the court would order it filed, and 24 Code, Sec. 4120; Rules, Sec. 28. Rules, No. 21; Engleken v. Schultz, as Code, Sec. 4237; Rules, 37; 40-703. Engleken v. Schultz, 40-703; Con- 27 Simplot v. Dubuque, 4y-630; nor v. Long, 63-295; Ind. Dist. v. Holmes v. Hull, 48-177. Ind. Dist., 48-206; Betts v. Glen- as Cord v. Barry, 71 N. W., 228; wood, 52-124; Wise v. Ury, 72-74; Pratt v. Pratt, 69 N. W., 1128. Exchange Bk. v. Pottorfe, 65 N. W., 20 White v. Savery, 49-197; Artz 312; Smith v. Hill, 83-684. v. Culbertson, 71-366. ze Code of 1873, Sec. 4412; old 570 APPELLATE PROCEEDINGS. [ 1335. I continue the case until it could be done. 30 The motion to dismiss the appeal may be overruled pro forma in order that it may be left for determination in the final submis- sion of the cause, and such action will not prevent its consideration at that time. 31 And an appeal may be dis- missed when it appears that appellant is no longer en- titled to prosecute it. 32 So it may be dismissed when no judgment was rendered in the court below. 33 But a cause will not be affirmed or dismissed on motion on the ground that the case is not triable de novo, and there is no assignment of errors, 34 nor because it is claimed that the record does not sustain the errors assigned. 35 If, pending an appeal in a divorce case, one of the parties dies, the action abates. 36 A second motion to dismiss an appeal may be made upon a new and more perfect record. 37 An appeal may be dismissed by the State when it does not appear that it will prejudice the rights of the appellee. 38 But it would seem that an appeal could only be dismissed by the real party interested. 39 The supreme court may order a judgment of the lower court affirmed without prejudice. 40 When the supreme court can not determine from the pleadings what the issues are, they may remand the cause so that the par- ties may plead further. 41 An appeal may be dismissed if an appellant fails to pay or secure the clerk's fees for a certification of the record. 42 The cases below referred to were decided under the old statute. Under prior law the appeal was not perfected until the fees for a tran- 30 Manson v. Ware, 63-345; Aid- as Martin v. State F. Ins. Co., 58- rich v. Price, 57-151. 609; Warder v. Schwartz, 65-170; si Green v. Rouen, 62-89. Beiter v. Shadle, 70 N. W., 722. 32 Ind. Dist. v. Dist. Twp., 44-201; 34 White v. Savery, 49-197. Stanley v. Davenport, 54-463; as Balm v. Nunn, 63-641. Simonson v. C., R. I. & P. R. Co., se Barney v. Barney, 14-189. 48-19; Faucher v. Grass, 60-505; 37 Seacrest v. Newman, 19-323. Gresham v. Chantry, 69-728; Long ss state v. Moriarty, 20-595. v. Smith, 67-22; Code, Sec. 4151; 39 state v. Cavers, 22-343; see Rules, Sec. 30; Root v. Heil, 78- Marshall County v. Knoll, 69 N. 436; Price v. Baldaref, 90-205; West W., 1146. v. Fitzgerald, 72-306; Trulock v. 40 White v. Poorman, 24-108; Friendship Lodge, K. P., 75-381; Van Orman v. Spafford, 20-215. Chicago, R. I. & P. R. Co. v. Dey, 41 Lyon v. Tevis, 8-79. 76-278. 42 Loomis v. McKenzie, 57-77; Fairburn v. Goldsmith, 56-347. 1336.J APPELLATE PBOCEEDINGS. 571 script were paid or secured. 42 But the fees need not be paid until a transcript was required. 43 And no time was fixed by statute within which such fees must be paid. 44 1336. When the abstract will be deemed true. The abstract filed by the appellant, if no denial or ad- ditional abstract is filed by the appellee, will constitute the record and be regarded as a verity. It takes the place of the transcript and can not be impeached or con- tradicted in any other manner or to any greater extent than the transcript. 45 Nor can it be impeached by state- ments of counsel. 46 Nor can the abstract be impeached by a certificate of the clerk or judge, nor by affidavits, nor by a denial in an argument only. 47 And when an ab- stract purports to contain a copy of a paper which is a part of the record, it will be presumed that the whole paper is set out, unless the contrary is shown. 48 And when appellant's abstract states that an exception was taken, and it is not denied in an amended abstract, it will be presumed it was taken as stated. 49 If an abstract claims to be an abstract of all of the evidence and that statement is denied in appellee's abstract, the statement of appellee will be deemed true in the absence of a de- nial by the appellant. 50 If the appellee files an amended 42 Code, Sec. 4122; Rules, Sec. 29; 211; Kunz v. Young, 66 N. W., Day v. Hawkeye Ins. Co., 72-597; 879; McFarland v. City of Musca- Fitzgerald v. Kelso, 71-731; State tine, 67 N. W., 233. v. Rogers, 71-753; Moore v. Held, * Baird v. C., R. I. & P. R. Co., 73-538; Loomis v. McKenzie, 57-77; 61-359. Fairburn v. Goldsmith, 56-347; * Palmer v. Rogers, 70-381. Slone v. Berlin, 88-205; Bruner v. BO Kearney v. Ferguson, 50-72; Wade, 85-666; Searles v. Lux, 86- Rules, Sec. 22; State v. Seery, 64 61; Peterson v. Hays, 85-14. N. W., 631; Jamison v. Weaver, 87- Slone v. Berlin, 88-205. 72; Love v. Donaldson, 63-631; 44 Bruner v. Wade, 85-666. Wilmering v. Western Union Tel. 48 Code, Sec. 4118; Rules, Sec. Co., 63 N. W., 677; Hopkins v. C., 22; White v. Savery, 49-197; Kear- R. I. & P. R. Co., 64 N. W., 603; ney v. Ferguson, 50-72; Hardy v. Clark v. Tracy, 68 N. W., 435; Hart Moore, 62-65; Eldridge v. Bell, 64- v. Jackson, 57-75; Ham v. Wiscon- 125; State v. Seery, 64 N. W., 631; sin I. & N. R. Co., 61-716; Lucas Jamison v. Weaver, 87-72. v. Jones, 44-298; Daniels v. Lang- 46 Farmer v. Sasseen, 63-110; don, 52-741; Cole v. Croskery, 63- Weaver v. Kintzley, 58-191; Ken- 526; Maxwell v. La Brune, 68-689; drick v. Eggleston, 56-128; Van Brooks v. C., M. & St. P. R. Co., Winkle v. Iowa, etc., 56-245; Ran- 73-179; Richardson v. Hoyt, 60-68; kin v. Miller, 43-11. Burkhart v. Ball, 59-629; Kearney 47 Holmes v. Lucas County, 53- v. Ferguson, 50-72; Foley v. Hef- 572 APPELLATE PEOCEEDIXGS. [ 1336. abstract and the matters therein stated are not denied, they will be taken as true, and a denial, not confessed, will be disregarded if not sustained by a certification of the record. 51 But if appellant files a further ab- stract denying such matters with a certification of the record to sustain his original abstract the court will re- sort to the transcript to ascertain the facts. 52 By filing an additional abstract purporting to supply omissions in the original abstract, the party admits that the two abstracts contain all the evidence given on the trial, unless he also denies that the two abstracts contain all the evidence. 53 And this is true, though the original ab- stract does not state that it contains all the evidence, if the appellee files an amended abstract, setting out evi- dence alleged to have been omitted from the original, unless he states that with the additions made by him the abstracts do not contain all of the evidence. 54 If the ap- pellee contends that the two abstracts do not contain all of the evidence, such statement will be deemed true in the absence of a denial, or amended abstract accompanied or sustained by a certification of the record by the ap- pellant. 55 If the abstract of the appellant does not pur- feron, 70-572; Cleveland v. Atkin- Bluffs, 62 N. W., 675; Smith v. son, 63 N. W., 465; Capitol City Allen, 70 N. W., 694. State Bk. v. Hammer, 70 N. W., 52 White v. Savery, 49-197; Ztm- 89; Avery Planter Co. v. Martz, 65 merman v. Merchants & Bankers N. W., 989; Deere v. Allen, 64 N. Ins. Co., 77-350. W., 682; State v. Seery, 64 N. W., 53 Wells v. B., C. R. & N. R. Co., 631. 66-520; Wilson v. Palo Alto Coun- 51 Shattuck v. Burlington Ins. ty, 65-18; see Cross v. B. & S. W. Co., 78-377; Furenes v. Severtson, R. Co., 51-683; Connors v. Burling- 66 N. W., 918; Kunz v. Young, 66 ton C. R. & N. R. Co., 74-383; In re N. W., 879; Knight v. C., R. I. & P. Estate of Bagger, 78-171. R. Co., 81-310; Cox v. Mason City si Van Sandt v. Cramer, 60-424; & Ft. D. R. Co., 77-20; Crawford v. Starr v. Burlington, 45-87; Fergu- Berryhill, 66 N. W., 876; Riegle- son v. Davis County, 51-220; Cum- man v. Todd, 77-696; Brooke v. C., mings v. Browne, 61-385; Balm v. R. I. & P. R. Co., 81-504; Harper v. Nunn, 63-641; O'Brien v. Harri- Gleyslein, 85-709; Harrison v. son, 59-686. Snair, 76-558; Prescott v. Riverside 55 Love v. Donaldson, 63-631; Park R. Co., 68 N. W., 831; Pio- Brainard v. Simmons, 58-464; neer Impt. Co. v. Sterling Mfg. Co., Rules, Sec. 22; Wilmering v. West- 71 N. W., 409; Hiatt v. Nelson, ern Union Tel. Co., 63 N. W., 677; 69 N. W., 553; Bowman v. Western Hopkins v. C., R. I. & P. R. Co., Fur Mfg. Co., 64 N. W., 775; Dun- 64 N. W., 603; Clark v. Tracy, 68 gan v. Railway, 64 N. W., 762; N. W., 435; Barber v. Scott, 92-62; Hendricks v. City of Council Hoffman v. Fritz, 91-733. 1337, 1338.] APPELLATE PEOCEEDINGS. 573 port to contain all of the evidence, appellee may set forth in an amended abstract other portions of the evi- dence with a denial that both abstracts contain all of the evidence, and such denial will be taken as true in the absence of anything further from the appellant. 56 And generally it may be said that unless an additional or amended abstract is denied or amended and said denial or amendment sustained by a certification of the record, it will be presumed to present the record correctly, and will prevail against the original abstract, even though it seeks to eliminate something from the appellant's ab- stract 57 1337. When the abstract may be attacked by motion. If the abstract sets out evidence not in the record it may be stricken therefrom on motion of the ap- pellee. 58 And where the evidence is thus stricken out from the transcript and abstract, and a perfect tran- script is afterward filed but no new abstract, the court will only consider the original abstract as it is left after the evidence is stricken out. 59 But the court will not take a statement of the appellee in his abstract, that no bill of exceptions was filed, to be true, and on his mo- tion strike out the evidence without referring to the transcript to determine the truth of the allegation. 60 But it seems it may do so if appellee's statement is not de- nied or avoided by the appellant. 61 1338. Of the filing and service of amended and additional abstracts. We have already referred to the provisions of the statute and rules of court pro- viding for the filing and service of abstracts and amended abstracts. An amended abstract served thirty days before the case is submitted, will not be stricken so Cartwright v. Copess, 60-195; 526; Maxwell v. La Brune, 68-689; Hall v. Harris, 61-500; Howe v. Richardson v. Hoyt, 60-68; Burk- Jones, 66-156; Hassett v. Hassett, hart v. Ball, 59-629; Kearney v. i-304: Alexander v. McGrew, 57- Ferguson, 50-72; Rules, Sec. 22. 287; Hunter v. Des Moines, 74-215. ss Mudge v. Agnew, 56-297. '>' Hart v. Jackson, 57-75; Ham 59 Weider v. Overton, 47-538. v. W. I. & N. R. Co., 61-716; Lucas eo Wilson v. First Presb. Ch., oO- v. Jones, 44-298; Daniels v. Lang- 112. don, 52-741; Cole v. Croskery, 63- ei Armstrong v. Killen, 70-51. 574 APPELLATE PKOCEEDIXGS. [ loot). from the files because not served within the time fixed by the rules when no prejudice resulted from the delay. 62 And it has been held that an additional abstract filed by the appellant three months before the case was submit- ted, but after the filing of appellee's abstract, might, under the circumstances, be considered. 63 Nor will an amended abstract be stricken out because filed without leave or notice, 64 if the submission of the case is not thereby delayed. 65 An amendment can not be filed long after the case has been fully submitted. 66 An amend- ment to appellant's abstract, rendered necessary by rea- son of a motion in the court below, after the record was made up, will not be stricken from the files because it was not served on the appellee. 67 A party may be allowed to amend his abstract when the original does not fully present his case; but it should be done before the case is submitted, and, if application is made for leave to do so after the submission of the cause, it must be accompanied by a motion to set aside the sub- mission. 68 Nor can the appellant file an additional ab- stract with his argument in reply except to controvert the correctness of appellee's additional abstract. 69 An amendment of appellant's abstract filed without leave after appellee's argument is filed, may be stricken out on motion. 70 Where a motion was submitted with the case to strike out an amended abstract and argument because not filed within the time agreed upon by the parties, and the motion was overruled; no costs were taxed to the unsuccessful party for printing such ab- stract and argument. 71 And generally as to the right to ea Green v. Rouen, 62-89; see N. W., 419; State v. Windahl, 64 Davidson v. Carter, 55-117. N. W., 420. 63 Palo Alto County v. Harrison, 67 Peterson v. Adamson, 67-739. 68-81. es Wells v. B., C. R. & N. R. Co., 6* Frost v. Parker, 65-178; Harl 56-520; State v. Hamilton, 57-596; v. Pottawattamie County Mut. F. and see Fletcher v. Terrell, 50-267; Ins. Co., 74-39. Rogers v. Carman, 54-715. es Cason v. Ottumwa, 71 N. W., 6 Johnson v. C., R. I. & P. R. 192. Co., 51-25. es Hopper v. C., M. & St. P. R. TO i n re Caywood's Will, 56-301. Co., 91-639; State v. Thompson, 64 ?i Keegan v. Malone's Estate, 62- 208. 1339.] APPELLATE PROCEEDINGS. 575 amend an abstract. And when costs will be allowed therefor and taxed. 72 1339. When the abstract must contain all the evidence or all of the instructions. The court will not take the abstractor's statement of a fact when it does not appear of record. 78 There are some cases where the abstract must contain all of the evidence introduced on the trial in the lower court. Such is the case when it is sought to have reviewed a finding of facts made by a court, jury or referee. 74 And when it is claimed that the judgment is against the evidence. 75 And w T hen it is claimed that the damages are excessive. 76 And when it is claimed that the instructions are not applicable to the evidence. 77 And when it is contended that the verdict is contrary to the evidence or instructions. 78 And in all equity cases triable de novo in the supreme court the abstract must state that it contains all the evidence offered or received. 79 And if it is claimed that the in- 72 Bowman v. Western Fur Co., 64 N. W., 775; Groneweg v. Kus- worm, 75-237; Fitzgerald v. Nolan, 71 N. W., 224; Gutherless v. Ripley, 67 N. W., 109. 73 Dickerman v. Lubiens, 70-345; Anderson v. Leaverich, 70-741. 74 Andrews v. Kerr, 49-680; Walker v. Plummer, 41-697; Van Riper v. Baker, 44-450; Commercial Bk. v. King, 47-64; Price v. Bur- lington, C. R. & N. R. Co., 42-16; Rice v. Plymouth County, 53-635; Wisconsin, I. & N. R. Co. v. Seeor, 70-647; Kearney v. Ferguson, 50- 72; Andrews v. Kerr, 49-680; Par- sons v. Parsons, 66-754; Pioneer Impt. Co. v. Sterling Mfg. Co., 71 N. W., 409. 75 Wormley v. Dist. Twp., 45-666; Enix v. Miller, 54-551; see Holwig v. Rowler, 50-96; Price v. B., C. R. & M. R. Co., 42-16; In re Estate of Holderbaum, 82-69; Shattuck v. Burlington Ins. Co., 78-377; Neitz v. Hilker, 84-459; Brooks v. C., M. & St. P. R. Co., 73-179; Davis v. Campbell, 93-524. 76 Brant v. Lyons, 60-172. 77 Blackburn v. Powers, 40-681; Gantz v. Clark, 31-254; Rice v. Des Moines, 40-638; State v. Hemrick, 62-514; Wallace v. Robb, 37-192; see State v. Postlewait, 14-446; Mc- Intosh v.Kilbourne, 37-420; Laugh- lin v. Main, 63-580; George v. Swafford, 75-491; Blaul v. Tharp, 83-665; Lyman v. Landerbaugh, 75- 481;' Van Winkle v. C., M. & St. P. R. Co., 93-509; Wilson v. Phelps, 86-735; Stein v. Council Bluffs, 72- 180; Griffith v. B., C. R. & N. R. Co., 72-645; Evringham v. Lee, 78- 630; Trapnell v. Red Oak Junction, 76-744; Elder v. Stuart, 85-690; Herring v. Herring's Estate, 62 N. W., 666. 78 Rice v. Plymouth County, 33- 635; Caffery v. Groome, 10-548; Briggs v. Hartman, 10-63; Beal v. Stone, 22-447; Howell v. Snyder, 39-610; Bowman v. Western Fur Mfg. Co., 64 N. W., 775; Gray v. C., M. & St. P. R. Co., 75-100; Harri- son v. Snair, 76-558; Kinser v. Soap Creek Coal Co., 85-26; In re Estate of Holderbaum, 82-69; Thill v. Pohlman, 76-638; State v. Grossheim, 79-75; Neitz v. Hilker, 84-459; Chapel v. Wadsworth, 85- 742; Wertz v. Ind. Dist, 79-423. 79 Britton v. Central R. Co., 39- 390; Britt v. Case, 58-757; Greer v. Dickey, 53-755; Goodykoonts v. 576 APPELLATE PROCEEDINGS. [ 1340. structions, or some of them, are erroneous, they should all be set out, and the same is true when it is claimed the court erred in refusing an instruction asked. 80 When it is claimed the court erred in the admission or exclusion of evidence, all of the evidence should be set out, or at least sufficient to make the error com- plained of apparent. 81 If the court is asked to review the action of the lower court in ruling upon a motion for a new trial on the ground of the misconduct of jurors or of counsel, the record must show that it contains all of the evidence upon the question which was considered by the trial court. 82 1340. What is sufficient to show that the ab- stract contains all the evidence. The statement in the abstract to show that it contains all the evidence (in cases where it is necessary) will be sufficient if it fairly apprises the opposite party and the court that the ap- pellant claims that he has presented an abstract of all the evidence. 83 When the abstract contains a statement that it is an abstract of all the evidence, it will be pre- sumed, unless it appear to the contrary, that such is the fact, and that it was properly made a part of the record. 84 A statement that "the foregoing evidence is Ringland, 52-732; Overholt v. Chase v. Scott, 33-309; Huff v. Esmay, 54-748; Wilson v. Blair, Aultman, 69-71; Kreuger v. Sylves- 55-745; Green v. Rouen, 59-83; En- ter, 69 N. W., 1059. dersby v. Endersby, 49-694; An- si Chase v. Scott, 33-309; Cook v. drews v. Kerr, 49-680; Taylor v. S. C. & P. R. Co., 37-426; State v. Kier, 54-645; Underwood v. Lorn- O'Brien, 81-93; Peddicord v. Kile, bard Ins. Co., 84-25; Giltrap v. 83-542; Paddleford v. Cook, 74-4"33; Walters, 77-149; Reed v. Larrison, Deere v. Bagley, 80-197; Hirschl v. 77-399; Second Nat. Bk. v. Ash, Case Threshing Mch. Co., 85-451; 85-74; Carl ton v. Brock, 91-710; Bener v. Edington, 76-105; State v. Walrod v. Flanigan, 75-365; Parks Row, 81-138; Kuhn v. Gustafson. v. Garner, 77-154; Peoria Steam 73-633. Marble Works v. Linesenmeyer, 82 State v. Bigelow, 70 N. W., 80-253; Bailey v. Green, 80-616; 600; Grannis v. Chicago, St. P. & Shattuck v. Burlington Ins. Co., K. C. R. Co., 81-444. 78-377; Harper v. Gleyslein, 85- as Miller v. Wolf, 63-233; Bailey 709; Miller v. Terkeldsen, 80-476. v. Mut. Benefit Ass'n, 71-689; so State v. Nichols, 38-110; State Guinn v. Phoenix Ins. Co., 80-346; v. Williamson, 68-351; Moody v. St. Shattuck v. Burlington Ins. Co., 78- P. & S. C. R. Co., 41-284; State v. 377. Stanley, 48-221; State v. Johnson, s* Alexander v. McGraw, 57-287. 19-230; Bower v. Stewart, 30-579; 1340.] APPELLATE PROCEEDINGS. 577 by the court duly certified to be all the evidence offered by either party on the trial of the cause," is sufficient. 85 And when the abstract stated that it was all the evi- dence, and that within the proper time a bill of excep- tions was filed, embracing in the record the testimony set out, it was held sufficient. 86 And when it stated that it was all the evidence, and that it was taken down in writing- by order of the court, and made a part of the record, it was held the case was triable de novo. 87 Where certain depositions were referred to by the judge in his certificate as being marked, but the abstract did not identify them as being thus referred to in the certifi- cate, but it was alleged in an amended abstract that all the evidence offered, introduced or used on the trial was embraced in the original and amended abstracts, which allegation was not denied, it was held that the court would presume it had all the evidence before it. 88 It is not sufficient that it appears from the abstract that all the evidence was reported and certified to by the reporter and judge, nor is it sufficient to set out such cer- tificates; the abstract must state that the abstract is an abstract of all the evidence. 89 A statement in the bill of exceptions that it contains all of the evidence does not show that the abstract contains all of the evidence. 90 Nor will the fact that the abstract contains a copy of the certificate of the reporter and of the bill of exceptions signed by the judge. 91 An agreement for the submission of a case on the abstracts does not admit that all of the evidence is contained therein. 92 A statement that the ss Macleod v. Geyer, 53-615. Hasner v. -Patterson, 70-681; Huff ssDaere v. Needles, 65-101. v. Farwell, 67-298; Rice v. Plym- 8? Stoddard v. Hard wick, 46-160. outh County, 53-635; Wisconsin, I. 88 Paine v. Means, 65-547. & N. R. Co. v. Secor, 70-647; Drake soCassady v. Spofford, 57-237; v. Kaiser, 73-703; Polk County v. Ward v. Snook, 61-610; Hall v. Nelson, 75-648; Ainslee v. Wynn, Harris, 61-500; Phoenix Ins. Co. v. 65 N. W., 401; Capital City State Findley, 59-591; Ohrt v. Ober, 51- Bk. v. Hammer, 70 N. W., 89; Col- 540; Conwell v. House, 57-754; lins v. Wilson, 68 N. W., 916. Porter v. Stone, 62-442; Wisconsin, oo Wicke v. Iowa State Ins. Co., I. & N. R. Ce. v. Secor, 70-647; 90-4. Fulliam v. Muscatine, 70-436; m State v. Strohbehn, 65 N. W., Woodrum v. Carraher, 69-145; 304. * 2Koster v. Seney, 69 N. W., 868; Vol. H37 578 APPELLATE PROCEEDINGS. [ 1341. abstract contains "substantially" all the evidence, or that the evidence was "essentially as follows," or that it was "all the evidence bearing upon or introduced to sustain the issues and findings as to which plaintiff ap- pealed," or that it contains "the evidence," is not suffi- cient. 93 Ordinarily it is not necessary to set out in full the certificate of the judge in the abstract. 94 In the fol- lowing cases the sufficiency of the abstract is further dis- cussed. 93 Stipulations waiving a transcript and agree- ing that a cause hall be heard upon the abstract will not be a waiver of the statutory requirements as to ap- peals, nor of the objection that the abstract did not con- tain all the evidence. 98 1341. Assignment of errors when necessary. The abstract, except in cases triable de novo, must con- tain an assignment of errors; such assignment need fol- low no stated form, but must clearly and specifically in- dicate the very error complained of. Among several points in a demurrer, or in .a motion, or instructions or rulings on an exception, the one, or those relied upon, must be separately stated, and the court will only con- sider errors assigned with the required exactness; but the court must decide on each error thus assigned. 97 When such assignment is necessary, it must be served on the appellee or his attorney ten days before the first day of the trial term. Unless good cause for the delay be shown the appellee may have the appeal dismissed or the judgment affirmed. 98 Assignments of error are always necessary in a law but see Westervelt v. Huiskamp, 70 1045; Casey v. Ballon Banking Co., N. W., 125. 67 N. W., 98; Dean v. Zenor, 65 N. 93 Britt v. Case, 58-757; Blohm W., 410; Boyd v. Watson, 70 N. W., v. Sweeney, 66-604; Roe v. Wilmot, 120. 51-689; Parsons v. Parsons, 66-754. as Code, Sec. 4137; Rules, Sec. 37; 94Yantv. Harvey, 55-421. Conner v. Long, 63-295; Ind. Dist. as Van Winkle v. Iowa, etc., 56- v. Ind. Dist., 48-206; Betts v. Glen- 245; Higgins v. Mendenhall, 51-135. wood, 52-124; Wise v. Usry, 72-74; Lewis v. Pearson, 50-702; Al- Russell v. Johnston, 67-279; Ex- len v. Hull, 56-767. change Bk. v. Pottorfe, 65 N. W., a? Code, Sec. 4136; Rules, Sec. 312; Lundon v. Waddick, 67 N. W., 36; Shakman v. Potter, 66 N. W., 388. 1342.] APPELLATE PROCEEDINGS. 579 action," and they are necessary in equity cases when the case is not in proper form for trial de novo. 1 And they are necessary when the appeal is taken in an equity case from a ruling on a motion or demurrer. 2 But the failure to assign errors in time may be waived. 3 And sometimes an assignment will not be stricken. 4 And an assignment of errors may be amended. 5 But costs may be taxed to the party filing such amended assign- ment. 6 But such assignments are not necessary in an equity action which is triable de novo in the supreme court. 7 1342. Of the sufficiency of the assignment of errors. As has been seen, assignments of error must specify the very error complained of; and in the follow- ing cases assignments have been held insufficient in that respect : "That the court erred in its action in regard to the jury." 8 That "the court erred in overruling the de- fendant's exceptions to the report of the referee and en- tering judgment against defendant." 9 "That the court erred in rendering judgment for appellee." 10 That "the court erred in admitting certain evidence of the defend- ant against plaintiff's objection," 11 and assignments that "the verdict is contrary to law." "That the court ereed in admitting testimony on the trial." That "the 9Rarnhart v. Fair, 55-366; Livingstone, 57-307; Smith v. Hill, Wood v. Whitton, 66-295; Roberts 83-684. v. Cass, 27-225; Borland v. McNal- * Ingersoll v. Hay ward, 92-159; ly, 48-440; Boyd v. Watson, 70 N. Lundon v. Waddick, 67 N. W., 388. W., 120. s Stanley v. Barringer, 74-34; 1 Schmeltz v. Schmeltz, 52-512; Loughran v. Des Moines, 72-382; Cross v. B. & S. W. R. Co., 51-683; Kendig v. Overhulser, 58-195; Jordan v. Wimer, 46-65; Lutz v. Brown v. Rose, 55-734. Kelley, 47-307; Lynch v. Lynch, 28- e Stanley v. Barringer, 74-34. 326; Jones v. Clark, 37-586; Mai- ? Hackworth v. Zollars, 30-433; lory v. Luscombe, 31-269; Reed v. Sherwood v. Sherwood, 44-192; Larrison, 77-399; Giltrap v. Wai- Early v. Burt, 68-716; Code, Sec. ters, 77-149. 4136; Clark v. Raymond, 84-251. 2 Powers v. O'Brien Co., 54-501; s Hannon v. Chandler, 3-150; see Patterson v. Jack, 59-632; Bank v. Garrett v. Wells, 63-256. Pottorfe, 65 N. W., 312; see' last Hoefer v. Burlington, 59-281. reference. 10 Tomblin v. Ball, 46-190; Klotz a Exchange Bk. v. Pottorfe, 65 N. v. James, 64 N. W., 648. W., 312; Andrews v. Burdick, 62- n Merchants U. B. W. Co. v. 714; University of Des Moines v. Rice, 70-14. 580 APPELLATE PROCEEDINGS. [ 1342. court erred in excluding testimony" on the trial, or "in overruling defendant's motion in arrest of judgment and for a new trial," are all insufficient. 12 And in the cases cited below assignments were held insufficient. 13 If the assignment is as to error in instructions it will be disre- garded unless it point out the particular matter com- plained of. 1 * And in the following cases it was held that the error was pointed out with sufficient certainty. 15 An assignment to the giving of instructions designating them by number and saying that the court erred in giv- ing them and each one of them is sufficiently specific. 16 If a motion is made upon a statutory ground and the overruling of it is assigned as error, it will be sufficient. 17 It will be otherwise as to a motion containing several grounds. An assignment of errors in overruling a mo- tion for a new trial will not be good unless it points out the specific grounds of the objection. 18 And an assign- 12 Wood v. Hallowell, 68-377; Armstrong v. Killen, 70-51; Code, Sec. 4136; Hamilton Buggy Co. v. Iowa Buggy Co., 88-364; Mara v. Bucknell, 90-757. is Hawes v. Twogood, 12-582; Wilson v. Hillhouse, 14-199; Mor- ris v. C., B. & Q. R. Co., 45-29; Oschner v. Sc'hunk, 46-293; Bard- well v. Clare, 47-297; McCormick v. C., R. I. & P. R. Co., 47-345; Nockles v. Eggspieler, 47-400; Mof- fatt v. Fisher, 47-473; Benton v. Nichols, 47-698; Belts v. Glenwood, 52-124; Black v. Boyd, 52-719; Brown v. Rose, 55-734; Wilson v. Klokenteger, 56-764; Low v. Fox, 56-221; Vanderberg v. Camp, 68-212; Waller v. Waller, 76-513; Wads- worth v. First Nat. Bk., 73-425; Mc- Murray v. Capital Ins. Co., 87-453; Shroeder v. Webster, 88-627; see Duncombe v. Powers, 78-185; Al- broskey v. Iowa City, 76-301; Kauf- man v. Farley Mfg. Co., 78-679; Farmers Sav. Bk. v. Wilcka, 71 N. W., 200; Keokuk Stove Works v. Hammond, 63 N. W., 563; Burnside v. Eaton, 64 N. W., 786. i* Peck v. Hendershott, 14-40; Brewington v. Patton, 1-121; Blair v. Madison County, 81-313; Wicke v. Iowa State Ins. Co., 90-4. is Sherwood v. Snow, 46-481; Kendig v. Overhulser, 58-195; Clark v. Rails, 50-275; Hammer v. C., R. I. & P. R. Co., 70-623; Hath- away v. State Ins. Co., 64-229; Shaefert v. C., M. & St. P. R. Co., 62-624; Ludwig v. Blackshere, 71 N. W., 356. 16 Kendig v. Overhulser, 58-195; Clark v. Rails, 50-275; Wood v. Whitton, 66-295; Hammer v. C., R. I. & P. R. Co., 70-623; Hathaway v. State Ins. Co., 64-229; Koenig v. C., M. & St. P. R. Co., 65 N. W., 314. IT Thomas v. Hoffman, 62-125; see Nichols v. Wood, 66-225; Peter- son v. Walter A. Wood, etc., 66 N. W., 96; Moffit v Albert, 66 N. W., 162. is Leekins v. Nordyke, etc., 66- 471; Reilly v. Ringland, 44-422; Richardson v. McCormick, 47-80; Stevens v. Brown, 60-403; Marsel v. Bowman, 62-57; Terry v. Taylor, 64-35; McCormick v. C., R. I. & P. R. Co., 47-345; Oschner v. Schunk, 46-293; Foley v. Kirkland, 66-227; HaKHer v. Patterson, 70-681; Morris v. C., B. & Q. R. Co., 45-29; see Kit- terman v. C., M. & St. P. R. Co., 69-440; State v. Harbach, 78-475; Koenig v. C., M. & St. P. R. Co., 65 N. W., 314; Duncombe v. Pow- ers, 75-135. 1342.] APPELLATE PROCEEDINGS. 581 raent of error in a ruling of the court sustaining several demurrers of different defendants is not sufficiently specific. 19 An assignment of error that the court erred in his rulings on the objections to the questions, where the questions and objections are set out in the foregoing abstract, is too general to be considered. 20 Assignments that the court erred in sustaining defendant's demurrer and in entering judgment against plaintiff for costs, and in dismissing plaintiff's petition, are defective, in not pointing out any particular ground as error. 21 An as- signment of error that the court erred in sustaining a demurrer and an assignment that the court erred in sus- taining a motion for default and judgment and to strike an amended and substituted petition is not sufficiently specific. 22 An assignment which states that "The court erred in admitting testimony objected to by the defend- ant and in excluding testimony offered by defendant," is too indefinite. 23 An assignment of error presenting a question as to the correctness of a ruling based upon evidence will not be considered where the record does not show that it contains all of the evidence. 24 An as- signment of error in overruling objections thereto, "each of the following questions and answers," followed by page of printed questions and answers without objec- tions, is not sufficiently specific. 25 And an assignment of error that the court erred in rendering judgment will be valid only where the court rendered its decision in writ- ing, stating the facts found and the conclusions of law thereon, or where the case was tried by the court and the evidence was all brought up by a bill of exceptions. 26 Under proper circumstances an assignment of errors may be amended. 27 19 Bradley v. Johnson, 67-614. 2* Collins v. Wilson, 68 N. W., 20 Dungan v. Railway, 64 N. W., 916. 762. 25 Latimer v. State Bk., 71 N. W., 21 Esty v. McGee, 62 N. W., 673. 225. 22 Guyar v. Minnesota Thresher 26 Dean v. White, 5-266; Klotz v. Mfg. Co., 66 N. W., 83. James, 64 N. W., 648. 23 Buford v. De Voe, 65 N. W., 27 Hall v. Chicago, R. I. & P. R. 413 Co., 84-311; Bunyan v. Loftus, 90- 582 APPELLATE PROCEEDINGS. [ 1343, 13-14. 1343. Of service and filing the assignment of errors. If the assignment is filed at the time required it can not be stricken from the files, though not served or filed until after appellee's argument is filed. 28 But it has been held that the appeal will be dismissed if the as- signment is not served in time. 29 And an assignment presented by the appellant with his reply to appellee's argument will not be considered. 30 Nor will it be w T hen it is not filed within ten days before the first day of the term, and not until appellant's argument is filed. 31 An objection to an assignment will be deemed waived if not made before final submission. 32 An amended assiiiii- ment filed more than ten days before the term at which the cause is submitted, will be considered. 33 And an as- signment at the end of appellant's argument, which is not objected to by appellee until after the filing of his argument, and within two days of the submission of the cause, is sufficient. 34 1344. Of the form of the assignment and of the effect of failing to argue assignments. Assignments of error, though properly made, if not argued, will not be considered, and will be deemed waived. 35 The assignment may be in the following form: FORM OF ASSIGNMENT OF ERRORS. Title, ) Venue. \ Appellant assigns the following errors: 1. The court erred in admitting in evidence the deed (here desig- nate it). 122; Buhlman v. Humphrey, 86- Marker v. Dunn, 68-720; Goodnow 697; Stanley v. Barringer, 74-34. v. Wells, 67-654; Manning v. B., C. as Connor v. Long, 63-295. R. & N. R. Co., 64-240; Patterson 29 Ind. Dist. v. Ind. Dist., 48-206. v. Seaton, 70-689; Wood v. Hallo- so Betts v. Glenwood, 52-124. well, 68-377; Marsh v. C., R. I. & si Russell v. Johnston, 67-279; P. R. Co., 79-332; Estabrook v. Code, Sec. 4137; Wise v. Usry, 72- Riley, 81-479; Hull v. Ind. Dist., 74. 82-686; Young v. Omaha & St. L. 32 Andrews v. Burdick, 62-714. R. Co., 92-583; Niemeyer v. Wey- ss Kendig v. Overhulser, 58-195; erhaeuser, 64 N. W., 416; Dun- Brown v. Rose, 55-734. combe v. Powers, 75-185; Manning 34 University of Des Moines v. v. B., C. R. & N. R. Co., 64-240; Livingston, 57-307. Cason v. Ottumwa, 71 N. W., 192; ss Renwick v. D. & N. W. R. Co., McCandless v. Hazen, 67 N. W., 49-664; Parsons v. Parsons, 66-754; 2P6. 1345.] APPELLATE PROCEEDINGS. 583 2. The court erred in giving instruction number 1 asked by plain- tiff, in this, that (here point out the error). 3. The court erred in giving to the jury paragraph 1 of its charge to the jury in this (here point out the error). 4. The court erred in refusing to give instruction number 1, asked by the defendant. 5. The court erred, etc. (set out in the same manner any other er- rors complained of). While it is possible that the above form may require a more specific statement than is in all cases necessary, yet one can hardly be too spe- cific in pointing out the errors of which he complains. 1345. Of the argument. The printed brief and argument must state in divisions thereof properly num- bered, the several propositions of law claimed by the party making such brief or argument to be involved in the case before the supreme court, and the authorities re- lied upon in support of the same. When an authority cited is an adjudicated case, the brief or argument must show the name of the parties, the volume in which it is reported, and the page or pages containing the matter to which the attorney desires to call the attention of the court. When the reference is a text book, the number or date of the edition must be stated, with the number of the volume and page. 30 When the appeal presents to the court only questions of law upon rulings of the court below, the appellant must open and close the argument, and must, at least thirty days before the day assigned for the hearing of the case, serve upon an attorney for each appellee copies of his brief of points and authorities or argument. If appellee desires to be heard he must, at least ten days prior to the hearing, serve upon an attorney for each appellant, copies of his brief or argument; and the reply, if in print, must be served at least three days before the case is to be finally submitted. If the trial in the su- preme court is de novo, and the appellant has the burden, he must observe the foregoing rules. But if appellee has the burden he may waive his right to open the argument by serving notice in writing of his intention to do so upon 36 Rules, Sec. 69. 584 APPELLATE PROCEEDINGS. [ 1345. appellant or his attorney at least thirty days before the day assigned for the hearing of the cause. Appellant will then be entitled to open the argument, and must serve copies of his argument upon an attorney for each appellee ten days before the hearing. Appellee may then, and at least three days before the submission, serve upon an attorney for each appellant, copies of his argu- ment, which must be strictly confined to matters in re- ply to appellant's argument. A failure to comply with the above requirements will entitle the party not in default, unless the court shall, for sufficient cause, otherwise order, to a continuance, or to have the case submitted at his option upon the brief and arguments on file when the default occurred. 37 In a case triable de novo the party having the burden of proof in the case is entitled to the opening and closing of the argument. All printed briefs and arguments must be prepared as required by section 66 of the rules, and each party must file with the clerk twelve printed copies of each brief or argument, together with proper evi- dence of service of the same upon opposing attorneys. The clerk will note upon his docket the date of the service and filing of all manuscripts and arguments, and no brief or argument not served or filed within the time prescribed by the rules will be transmitted to the judges or considered by them in disposing of the case. No cause will be entered as submitted until the argu- ments are finally and actually concluded. 38 Under the prior rules arguments were sometimes filed after the opinion in a case had been written and the court was finally compelled to refuse to take the submission of causes until they had been fully argued. Notice in writ- ing or in print of intention to argue a case orally, must be served upon an attorney for the adverse party and filed with the clerk fifteen days before the first day of the term, and the party who fails to so serve ST Rules, Sec. 39; Steel v. Fife, 287; Devore v. Adams, 68-385. 48-99; Alexander v. McGrew, 57- 38 Rules, Sec. 40. 1345.] APPELLATE PROCEEDINGS. 585 and file such notice will not be entitled to argue orally, except in reply to an oral argument for the adverse party. 39 If appellant has given the notice, he is entitled to open and close the argument, unless the cause is triable de novo and the appellee has the burden. If the notice was given by appellee only, he is entitled to the opening, and the appellant must confine his remarks to a reply, unless the cause is triable de novo. If the cause is triable de novo and appellee has the burden, he may, if he has given the requisite notice, open and close the argument. 40 No oral argument can exceed one hour in length, un- less an extension of time is granted before the argument of the case is commenced. Only two attorneys will be heard on each side, but in case no oral argument is made on one side, only one attorney will be heard for the other. 41 A failure to file an argument will be considered an abandonment of the appeal, and in such case the decision of the lower court will be affirmed. 42 But a case not argued by the appellee will be reversed if the court reaches the conclusion that it ought to be reversed on any ground. 43 In an equity case if the appellee is plaintiff and files an argument and none is filed for the appellant the appeal will be treated as abandoned. 44 The court will not decide questions not argued by both sides unless it be absolutely necessary so to do. 45 An argument will not be stricken out because not tiled in time, but costs may be taxed to the party filing it. 40 But where a party has improperly filed the opening argument it may be 89 Rules, Sec. 41. Bluffs, 69-310; Russell v. Torbett, 40 Rules, Sec. 42. 81-754. 41 Rules, Sec. 43. 44 Beams v. Crawford, 86-753. 42 Mores v. Hanchett, 54-747; 45 McKern ' v. Albia, 69-447; Dining v. Bement, 54-156; Cline v. Deeds v. C., R. I. & P. R. Co., Phipps, 62-759; Lamp v. Sievers, 69-164; Gilfeather v. Council 66-85; Devore v. Adams, 68-385; Bluffs, 69-310; Humphrey v. Walk- McKern v. Albia, 69-447; Raynor v. er, 75-408; Dodd v. Scott, 81-319; Raynor, 77-282; State v. Price, 64 State v. Semotan, 85-57. N. W., 596. 4G Bartle v. Des Moines, 37-635; 3 Deeds v. C., R. I. & P. R. Co., Renwick v. Bancroft, 59-116; Smith C9-164; Gilfeather v. Council v. McFadden, 56-482; Cox v. F. C. 58C APPELLATE PROCEEDINGS. [ 1346. stricken from the files. 47 Where a cause has been regu- larly submitted, it will not be remanded on the mere statement of opposing counsel in a petition for a rehear- ing, that the argument was not properly served. 48 Points raised in oral argument which are not made in the print- ed briefs will not be considered. 40 It is not proper for an attorney in his argument to state facts outside the record impeaching the judicial conduct of the trial judge. 50 Reference in the argument to the abstract must give the pages where the matter re- ferred to can be found. 51 1346. Of the duty of the clerk. The clerk of the supreme court must docket the causes as the same are filed in his office, and arrange and set a proper number for trial each day of the term, placing together those from the same judicial district, and must cause notice thereof to be published and distributed in such manner as the court may direct. No cause will be docketed unless the abstract required by the rules is filed fifteen days before the first day of the term at which the cause is set down for trial, nor unless the docket fee is paid. 52 A cause will be docketed as it was in the court below and the party taking the appeal will be called the appellant, and the other party the appellee. 53 Causes not filed in time will go to the next term. The clerk, immediately after the time expires during which causes may be docketed for trial at a term of court, must make and cause to be printed without delay, the docket for the term, which must give all the causes, whether continuances or ap- pearances, for trial at such term, and shall designate the number, the party appealing, the court and county from which the appeal is brought, the counsel of the parties, the day each cause is assigned for trial and such other & S. R. Co., 66-289; Kellam v. Me- v. Drake, 69-760; Cassidy v. Palo Alpine, 63-251. Alto County, 58-125. 47 Devore v. Adams, 68-385. ^ Herriatt v. Kersey, 69-111. 8 Hall v. Harris, 61-500. 52 Code, Sees. 4117, 4121; Rules, 49 Iowa H. Co. v. Des Moines N. Sees. 15, 17. Co., 63-285. os Rules, Sec. 16. so Paine v. Frost, 67-282; see Sax APPELLATE PROCEEDINGS. 587 matter for information of the court and attorneys as may be conveniently given. He must forward to each judge of the court, to each attorney having causes at the term and to the clerk of the district and superior courts of each county a copy of said docket. 54 The clerk must with as little delay as possible, send to each judge of the court a copy of the abstracts, denials of abstracts, briefs and arguments, and other printed matter filed in each case docketed or set down for trial upon the docket of the term. 55 1347. Of motions. In addition to what has hereto- fore been said regarding motions it may be remarked that all motions made in a cause after judgment, or after the time assigned for the hearing of causes from the dis- trict from which it was appealed, will be heard only upon proof of service of reasonable notice'of such motion upon the adverse partj^. 56 All motions must be in writing, filed with the clerk, and entered upon the motion book, and served by copy of the same and of all affidavits or documents upon which they are based, upon the opposite party or attorney, ten days before the morning on which the causes for the district are set for hearing. Such op- posite party will then have five days to file papers in resistance to the same, copies of which must be served upon the other party or attorney, and no papers will be regarded which do not appear to have been so served; but this rule does not apply to motions the causes where- of arise after the filing of the abstract, but in such xBases timely notice of such motions must be given to the op- posite attorneys, nor does this rule apply as to time of service of motions for a continuance. 57 If service is not made as required the motion will not be considered, 58 and the same is true if no proof of service is on file. 59 Argu- ments in support of motions, if any, must be filed in writ- 54 Rules, Sec. 18. 58 Morrison v. Springfield En- ss Rules, Sec. 91. gine, etc., Co., 84-637; Wicke v. OB Rules, Sec. 38; Subd. 3. Iowa State Ins. Co., 90-4. 57 Code, Sec. 4138; Rules, Sec. 59 Blasser v. Moats, 81-460. 38; Subd. 1 and 2. 588 APPELLATE PEOCEEDIXGS. [ 1347. ing or print before the morning of the day set for hearing of the cause, and served by copy upon the opposite party or attorney when the motion is served. And arguments in resistance, if any, must be filed in writing or print be- fore the morning of the day set for hearing of the cause, and served by copy on the opposite party or attorney when the papers in resistance are served. 60 The death of one or all of the parties will not cause the proceedings to abate, but the names of the proper persons may be* substituted, as is provided in such cases in the district court, and the cause may proceed. The court may also grant a continuance when such a course will be calculated to promote the ends of justice. 61 When the appellant has no right, or no further right, to prose- cute the appeal, the appellee may move to dismiss the ap- peal, and if the grtfunds of the motion do not appear in the record, or by a writing purporting to have been signed by the appellant and filed, they must be verified by affidavit. 62 The appellee may, by answer or abstract, filed and verified by himself, agent or attorney, plead any facts which render the taking of the appeal improper or destroy the appellant's right of further prosecuting the same, to which answer the appellant may file a reply or abstract, likewise verified by himself, his agent or attor- ney, and the question of law or fact therein will be de- termined by the court upon evidence in the form of affi- davits unless otherwise ordered. 63 When the appellant has accepted the benefit of the judgment, or has settled or lost his interest in the subject matter of the appeal, or is not the real party in interest and never authorized the appeal it will be dismissed. 64 Also in other cases. 63 eo Rules, Sec. 38; Subd. 4. Code, Sec. 4152; Rules, Sec. 31. ei Code, Sec. 4150; Rules, Sec. 64 Root v. Heil, 78-436; Simonson 12; Geyer v. Douglass, 85-93; see v. C., R. I. & P. R. Co., 48-19; Lewis Barney v. Barney, 14-189; Kinney v. Tilton, 62-100; Price v. Baldaref, v. Kinney, 63 N. W., 452. 90-205; Faucher v. Grass, 60-505; 62 Code, ' Sec. 4151; Rules, Sec. Gresham v. Chantry, 69-728; Long 30; West v. Fitzgerald, .72-306; v. Smith, 67-22; West v. Fitzgerald, Trulock v. Friendship Lodge, etc., 72-306. 75-381; Chicago, R. I. & P. R. Co. er, Stanley v. Davenport, 54-463; v. Dey, 76-278. Trulcck v. Friendship Lodge K. P., 1348.] APPELLATE PPtOCEEDINGS. 589 1348. Of affirmance of cases in the supreme court. At the commencement of each term all the causes included in the assignment will be called in their order, but no case will be submitted on first call if any party object thereto. 66 The court will hear all causes included in the assignment, and take submissions thereof in the order in which they are assigned, excepting those which have been continued or otherwise disposed of by direc- tion of the court. 67 The supreme court may reverse, modify or affirm the judgment, decree or order appealed from, or may render such judgment or order as the in- ferior court should have done, according as it may think proper. 68 A party may urge new reasons in support of his points in the supreme court, and such court may affirm the judgment on other grounds than those on which the court below acted. 69 The supreme court, when it affirms a judgment, must also, if the appellee asks or moves therefor, render judg- ment against the appellant 'and his sureties on appeal bond for the amount of the judgment, damages and costs referred to therein, in case such damages can be ac- curately known to the court without an issue and trial. 70 Upon the affirmance of any judgment or order for the payment of money, the collection of which, in whole or in part, has been stayed by an appeal bond, the court may award to the appellee damages upon the amount so stayed, and, if satisfied by the record that the appeal was taken for delay only, may award as damages, not exceed- ing fifteen per cent, thereon. 71 If the supreme court af- firm the judgment or order, it may send the cause to the district court to have the same carried into effect, or it may itself issue the necessary process for the purpose, $ Hart v. Ensign, 61-724. 2 Shaw v. Nachtwey, 43-653; 1350.] APPELLATE PKOCEEDIXGS. 593 If final judgment is rendered in the supreme court on ap- peal, it is the judgment of that court which constitutes the final adjudication of the cause, and not the judgment of the court below. 90 And when the supreme court has? reversed the case and remanded it for a new trial, it will not, at a subsequent term, on motion, affirm a judgment rendered in favor of the appellant. 97 The supreme court has power, even aside from statutory provision, to cor- rect or cancel judgments improperly entered through mistake or oversight. 98 o 1350. Of the effect of judgment in supreme court and of remitting part of judgment, etc. If the appellee takes a new judgment in the supreme court against the appellant and his sureties on the appeal bond, it is a merger of the former judgment. 99 If there is no money judgment in the court below there can be none rendered in the supreme court on the appeal bond. 1 It is held that where usury is pleaded, that on appeal plain- tiff might remit the usury and that judgment might be rendered in the supreme court for plaintiff for the prin- cipal and for the school fund for such usury. 2 Wh^n plaintiff, in an action to recover damages in the lower court for injury to his stock killed on defendant's rail- road, recovered double damages in the lower court, but on appeal it was held that he was only entitled to single damages, a judgment might be rendered for him for such damages in the appellate court, he to pay the costs of appeal. 3 And a judgment may be modified when ex- cessive if a party consents thereto. 4 So, in some cases when the appellant offers to remit an erroneous excess of a judgment, judgment will be rendered in the appellate court for the proper amount. 5 When the supreme court 96 Griffin v. Seymour, 15-30. s Keyser v. K. C., St J & C. 97 Roberts v. Corbin, 26-315. B. R. Co., 56-440. 98 Drake v. Smythe, 44-410. * Pelley v. Walker, 79-142. 99 Swift v. Conboy, 12-444. s Bayless v. Hennessey, 54-11; 1 Berryhill v. Keilneyer, 33-20; Sanney v. I. C. G. Co., 68-542; Branscomb v. Gillian, 55-235; see Payne v. Billingham, 10-360; Mou- Ragan v. Day, 46-239. telins v. Wood, 56-254; Gere v. C. 2 Thompson v. Purnell, 10-205; B. Ins. Co., 67-272; Brentner v. C., see Hyde v. M. L. Co., 53-243. M. & St. P. R. Co., 68-530; see Vol. n38 594 APPELLATE PROCEEDINGS. [1351, 1352. deems the amount of the verdict excessive it will, on ap- peal, reduce it. 6 1351. Of the effect of a prior decision on a sec- * ond appeal. A decision on appeal constitutes the law of the case and will not, on a subsequent appeal of the same case, be overruled or re-examined, unless the issues have been changed. 7 1352. Of proceedings in the lower court after a cause is reversed and remanded. After a cause is re- versed with directions that a certain judgment be en- tered, no fact existing prior to the first trial can be inter- posed against the entry of such judgment. 8 If a case is reversed because the court below erred in overruling a motion to strike depositions from the files, and the cause is remanded, the lower court must try the case again. 9 But when the case is reversed on one point, other points passed on by the supreme court will in some cases be re- garded as finally determined by the appeal. 10 But if the action of the court below in overruling a motion for a new trial is reversed, the lower court must proceed to try the case, if anything is left to try. 11 If the reversal is for error of law in entering judgment on a finding of facts, and the case is remanded, judgment should be entered in the trial court at once. 12 But such is not the rule where a motion for a verdict on the evidence is overruled in the lower court and such ruling is reversed in the appellate Howe v. Sutherland, 39-484; Wag- & P. R. Co., 70-59; Davis v Curtis goner v. Turner, 69-127; Cooper v. 70-398; M. L. 0. Co. v. Montague' Mills County, 69-350; Kaufman v. 65-67; Lewis v. Burlington Ins' Dostal, 73-691. Co., 80-259; Heffner v. Brownell e McKinley v. C. & N. W. R. Co., 75-341; Burlington, C R & N R 44-314; Lombard v. C., R. I. & P. Co. v. Dey, 89-13; Larkin v. Bur- R. Co., 47-494; Noel v. Dubuque, lington, C. R. & N. R. Co., 91-654; B. & M. R. Co., 44-293; Small v. Garrettson v. Merchants & Bank- C., R. I. & P. R. Co., 55-582; Dick- ers Ins. Co., 92-293; Smith v Fos- ey v. Harmon, 26-501. ter, 85-705. 7 Adams v. B. & M. R. Co., 55- s Lord v. Ellis, 11-170. 94; Barton v. Thompson, 56-571; Kershman v. Swehla, 62-654 Simplot v. Dubuque, 56-639; Star 10 Croup v. Morton, 53-599. Wagon Co. v. Swezey, 63-520; Ellis n Pomroy v. Parmlee 10-154- v. State Ins. Co., 68-578; Dist. Twp. Dryden v. Wyllis, 53-390.' v. Ind. Dist., 69-88; Raridan v. C. 12 Roberts v. Corbin 28-355- Dre- I. R. Co., 69-527; Drake v. C., R. I. fahl v. Tuttle, 42-177. 1353.] APPELLATE PROCEEDINGS. 595 court, in such case further evidence may be introduced. 13 The court below on the filing of a procedendo directing it to enter judgment in accordance with its opinion must proceed to enter such judgment irrespective of notice to the adverse party or his intention to file a petition for a rehearing. 14 If, after the judgment of the supreme court, there is nothing left for the court below to act upon, the case therein should be dismissed, 15 or a judgment entered as may be proper under the facts and in such a case an- other trial is not necessary. 16 The fact that a case is re- manded does not prevent the granting of additional re- lief, but parties will not be permitted to plead a new cause of action. 17 The reversal on appeal of a cause in which a motion for change of venue has been overruled will not necessitate a re-trial of the motion for a change of venue where the ruling thereon was correct. 18 When the appellate court remands a cause to be carried into effect by the court below, such decision and the order of the court being certified thereto, and entered on the rec- ords of the court below, has the same force and effect as if made and entered during the session of such lower court. 19 See cases cited below. 20 A cause may be remanded for a new trial as to a cross- action alone. 21 1353. Of power of supreme court and of execu- tions therefrom Restoration of property. The su- preme court has power to prescribe rules for allowing appeals, on such other intermediate orders and decisions as are expedient, and for permitting the same to be taken and tried during the progress of the trial in the court be- low; but such intermediate appeals must not retard pro- is Meadows v. Hawkeye Ins. Co., " Leech v. Germania Building 67-57. Ass'n, 70 N. W., 1090. n Fenton v. Way, 44-438. is Stevens v. Ellsworth, 64 N. W., is Edgar v. Greer, 14-211. 668. is City Bank v. Radtke, 92-207; "Code, Sec. 4144; Rules, Sec. 56. Howe v. Jones, 71-92; Garmor v. 20 Miller v. Corbin, 48-525; Bates Windle, 76-239; Lombard v. Greg- v. Kemp, 13-223. ory, 88-431. 21 McAfferty v. Hale, 24-355. 596 APPELLATE PROCEEDINGS. [ 1333. ceedings in the trial in chief in the court below. 22 And it has power to enforce its mandates upon inferior courts and officers by fine and imprisonment, which imprison- ment may continue until the mandates are obeyed. 23 And it may issue all writs and processes necessary for the exercise and enforcement of its appellate jurisdic- tion. 24 Executions issued from the supreme court shall be the same as those from the district court, attended with the same consequences, and returnable in the same time. 25 In cases in which the judgment below is af- firmed in the supreme court, the party in whose favor judgment is affirmed may have execution either from the supreme court or the court below. In case of an execution from the supreme court, if the process of garnishment is served upon the exe- cution defendant, either principal or surety, the sher- iff, in addition to his return, must return a copy of the execution and his returns to the district or superior court from which the cause was appealed, and all issues of fact which may arise in such garnishment process, must be tried by that court. 26 The court may require the appellants to give security for costs under the same circumstances and upon the same showing as plaintiffs in civil actions in the court below. 27 Where an execution has been issued from the supreme court, and a levy on real property made under it, the district court of the county in which the levy is made may enjoin the sale of the land levied on. 28 Restoration of property taken under a judgment appealed from can not, in case of reversal, be given as a summary remedy when such property has, by voluntary sale, or by seizure and sale, passed to an innocent purchaser, or has in the bona fide discharge of a trust pursuant to an order of the court been turned over to another. 29 But where a judg- 22 Code, Sec. 4103; Rules, Sees. 2- Code, Sec. 4135; Rules, Sec. 3, 6. 93. 23 Code, Sec. 4147; Rules, Sec. 7. 23 Davis v. Bonar, 15-171; Massie 24 Code, Sec. 4109; Rules, Sec. 6. v. Mann, 17-131. 25 Code, Sec. 4153; Rules, Sec. 58. 20 Hanschild v. Stafford, 27-301; 26 Rules, Sec. 59. see Munson v. Plummer, 58-736. 1354.] APPELLATE PROCEEDINGS. ment under which the successful party has acted is re- versed, it is his legal duty to restore to the other party all the property, or its value, taken under the judgment, and, on a failure to do so, action may be brought against him therefor without making a demand. 30 A purchase at sheriff's sale by the plaintiff in execu- tion, or his attorney, with actual knowledge of a pending appeal, is at the peril of such purchaser, 31 nor will one be protected who purchases at such a sale and has not paid the consideration. 32 The statute authorizes the su- preme court, or the court below, to direct execution or a writ of restitution to issue to restore to appellant the property or its value which he may be entitled to by reason of the decision of the supreme court, and which was taken from him by the judgment or order of the low r - er court, 33 and property acquired by a purchaser in good faith, under a judgment subsequently reversed, will not be affected by such reversal. 34 But the provisions of the law for the protection of purchasers at judicial sales as against subsequent reversals of the judgment are not de- signed for parties claiming under a distinct title. 35 If a judgment creditor purchase before notice of appeal, and he again recovers in another trial, his title will not be affected. 36 And when plaintiff, in an action to ascer- tain w r hich of two persons was entitled to certain money due on real property, paid it into court, and it was paid over to one defendant on an adjudication of the court, and on an appeal by the other defendant it was adjudged to belong to him, he could not recover it from the plain- tiff, 37 and see. 38 1354. Of opinions of the court Rules. At the commencement of each term the causes will be called in so Zimmerman v. Nat. Bk., 56- 34 Code, Sec. 4146; O'Brien v. 133. Harrison, 59-686. 31 Twogood v. Franklin, 27-239. 35 Wood v. Young, 38-102. 32 O'Brien v. Harrison, 59-686. se Frazier v. Crafts, 40-110. 33 Code, Sec. 4145; Rule, Sec. 57; 37 White v.'Butt, 32-335. Ft. Madison Lumber Co. v. Batav- ss Davis v. Bonar, 15-171. ian Bank, 77-393; Weaver v. Stacy, 93-683. 598 APPELLATE PROCEEDINGS. [ 1354. their order, but no cause will be submitted on the first call if an}' party object thereto. 39 The court will hear all cases docketed when not continued by consent or for cause shown by the party unless otherwise directed by the court or the judges thereof, and the party may be heard orally or otherwise, in his discretion. 40 No cause is decided until a decision in writing is filed with the clerk. 41 The decisions of the court on all ques- tions passed upon by it, including motions and points of practice, shall be specifically stated, and shall be ac- companied by an opinion upon all such matters as are deemed of sufficient importance, together with any dis- sent therefrom, which dissent may be stated with or without an opinion; and all decisions and opinions, in- cluding dissents, shall be in writing and be filed with the clerk except rulings on motions which may be en- tered upon the announcement book. If the decision is not accompanied with an opinion, it shall briefly state the title of the case, the county from which the case was appealed, and the name of the pre- siding judge, the nature of the action, the names of coun- sel appearing on either side, and the conclusions reached. When the court is equally divided in opinion the judg- ment of the court below will stand affirmed, but the de- cision is of no further force or authority. In case of such division, opinions may be filed at the option of the court. If no opinion is filed a written announcement must be made of the division of the court upon the ques- tions presented, and that the judgment is affirmed by op- eration of law. The records and reports must in all cases show whether the decision was made by a full bench, and whether either, and if so, which of the judges dissented from the decision. 42 If a case is reversed upon errors in instructions and 8 Rules, Sec. 44. 42 Code, Sees. 198, 199; Rules, 40 Code, Sec. 4139; Rules, Sec. 44. Sees. 46, 47 and 48. 41 Code, Sec. 4139; Rules, Sec. 46. 1355, 1356.] APPELLATE PEOCEEDLNGS. 599 sent back for a new trial, the court will not express its opinion as to errors claimed to have been made in the admission or exclusion of evidence. 43 The rules of prac- tice in the supreme court will be framed and interpreted with a view to the submission of causes on their merits, 44 and such rules have the force and effect of laws duly en- acted. 45 1355. Cases where no motion for a new trial is necessary, etc. The supreme court will review any of the orders from which the law allows an appeal to be taken, if excepted to at the time, without a motion for a new trial being made on that ground in the court be- low. 46 A mistake of the clerk will not be ground for an appeal until the same has been presented and acted upon by the court below. 47 A judgment or order will not be re- versed for an error which can be corrected on motion in an inferior court, until such motion has been made and there overruled. 48 1356. Of the lien of the judgment of the su- preme court, etc. When a judgment is affirmed in the supreme court, and a procedendo issues, the lien of the judgment on real estate attaches and continues from the date on which the judgment was rendered in the court below; but when a judgment is rendered in the ap- pellate court against the appellant and the sureties on Gould v. C., B. & Q. R. Co., Vandebur, 50-651; Ottumwa Sav. 66-590; see Baker v. Kerr, 13-384. Bk. v. Ottumwa, 63 N. W., 672; Wil- 44 Palo Alto County v. Harrison, son v. Riddick, 69 N. W., 1039; Bull 68-81; Poole v. Seney, 70-275. v. Keenan, 69 N. W.,433; Shelley v. 45 State v. O'Day, 68-213. Smith, 66 N. W., 172; Weis v. Mor- 40 Rindskoff v. Lyman, 16-260; ris, 71 N. W., 208; Richman v. Code, Sec. 4106; see Code, Sec. Board, etc., 70-627; Kirk v. Litter- 4107; Brown v. Rosie, 55-734; Doe- est, 71-71; Rising v. Teabout, 73- fahl v. Tuttle, 42-177; Beems v. 419; British-American Ins. Co. v. Chicago, R. I. & P. R. Co., 58-150; Neil, 76-645;' Gray v. Wolf, 77-630; Hunt v. Iowa Cent. R. Co., 86-15; Ash v. Scott, 76-27; Fish v. Chica- Kaufman v. Farley Mfg. Co., 78- go, R. I. & P. R. Co., 81-280; Rey- 679. nolds v. Iowa & N. Ins. Co., 80- 47 Code, Sec. 4104. 563; Yan'cey v. Tatlock, 93-386; 48 Code, Sec. 4105; Garvin v. Ketchum v. Larkin, 88-215; Cox v. Cannon, 53-716; Smith v. Warren Mason City & Ft. D. R. Co., 77- County, 49-336; Black v. Boyd, 52- 20; Allen v. Seaward, 86-718; Snell 719; Dickey v. Harmon, 26-501; v. Dubuque & S. C. R. Co., 88-442: Finch v. Billings, 22-228; Keller v. Sayles v. Delubrey, 64-109; Shipley Jackson, 58-629; Carmichael v. v. Reasoner, 80-548. COO APPELLATE PROCEEDINGS. [ 1357. the supersedeas bond, the judgment of the court below is merged therein and the lien thereof discharged; and in such case the lien of the judgment in the supreme court dates from the time of its rendition only. 49 The effect of the appeal is to deprive the lower court of jurisdiction over the case. 50 1357, Of the procedendo Of decrees, with- drawing papers. The procedendo may be in the follow- ing form: FORM OF PROCEDENDO. State of Iowa, County .1 The State of Iowa, to the district court in and for county. Whereas the supreme court of said State being lately certified of the record and proceedings in a certain cause which was in the district court of the county of aforesaid, wherein was plaintiff and was defendant, from which judgment so rendered the said defendant ap- pealed to the said supreme court of Iowa, and said court having duly examined the record and proceedings aforesaid in the premises, on the- day of , 18 , did affirm the judgment aforesaid, as rendered by the court below. You are hereby commanded, that with the speed which of right and according to law you may, you proceed in the same manner as if no appeal had been taken to and prosecuted in this court, anything in the record or proceedings aforesaid heretofore certified to the contrary, not- withstanding. Witness , clerk of the said supreme court, with the seal of court hereto affixed, at Des Moines, this day of , 18 . [Seal.] , clerk, etc. No procedendo, except in criminal cases, and in cases where petitions for rehearing have been overruled, will issue in any case until the expiration of thirty days from the filing of the opinion in the case, except upon order of one of the judges of the court, upon cause shown. 51 A procedendo is not necessary to authorize the court below to redocket and proceed with the case in a proper man- ner, which may be done on proper notice to the adverse party, at any time after the time for rehearing has ex- 4 Code, Sees. 3801, 4128; Swift v. Laughlin v. O'Rouke, 12-459. Conboy, 12-444. BI Rules, Sec. 54. so Levi v. Karrick, 15-444; Me- 1358.] APPELLATE PROCEEDINGS. 601 pired. 52 Decrees to be entered in the supreme court must be prepared by the attorney of the parties in whose favor they are rendered. Copies must be served on the opposite attorney and filed in the court within twenty days after the attorney preparing them shall have re- ceived notice of the decision in the cause in which they are entered. 53 And when, by the decision of the su- preme court, a decree is to be entered in such court at the option of either party, such option must be declared and a decree furnished as above stated, within twenty days from the date at which the attorney required to prepare the decree received notice of the decision. 54 If a new trial is granted, the clerk, as soon as the cause is at an end in the supreme court, must transmit to the clerk of the court below, all original papers or exhibits certified up from said court; if a new trial is not awarded, or if the cause is triable de novo, either party desiring to with- draw the same may, by motion, showing proper grounds therefor, and upon five days' notice to the other party, or his attorney, secure an order from this court or a judge thereof, allowing him to do so, upon filing a receipt for the same with the clerk of this court. 55 1358. When causes will be tried de novo in the supreme court. A cause treated as an equitable one in the lower court will be so treated in the supreme court. 56 And all equity cases tried by the method provided by statute must, on appeal, be tried de novo. 57 Cases held not triable de novo. 58 We have considered elsewhere when equity cases may be tried on errors assigned, in 52 State v. Knouse, 33-365; Beck- T Blough v. Van Hoorbeke, 48- er v. Becker, 50-139. 40; Sherwood v. Sherwood, 44-192; 53 Rules, Sec. 52. Chambers v. Ingham, 25-222; 54 Rules, Sec. 53. Cooper v. Skell, 14-578; Howe Mch. 55 Rules, Sec. 92. Co. v. Wooley, 50-549; McClain v. 6Hintrager v. Sumbafgo, 54- McClain, 57-167; First Nat. Bk. v. 604; Balch v. Ashton, 54-123; Man- City Council of Albia, 86-28. Chester v. Hoag, 66-649; Fritzler v. ss Bohull v. Neiwalt, 75-109; Robinson, 70-500; Taylor v. Kier, Yocum v. Haskins, 81-436; Law- 54-645; Baldwin v. Davis, 63-231; rence v. Thomas, 84-362; Smith v. Dove v. Ind. Dist, 41-689; Bryant Knight, 77-540; Chase v. Weston, v. Fink, 75-516; Frank v. Hollands, 75-159. 81-164. 602 APPELLATE PROCEEDINGS. [ 1359, 13GO. case the proper steps have not been taken to have them tried de novo. 1359. Of regulations as to the method of trial. While the legislature can not take away the right of trial de novo on appeal in equity cases, yet it may regu- late the manner of the exercise of such right. 59 And when a divorce case was not tried in open court below, it was held it could not be tried de novo in the supreme court. 60 1360. What must appear of record to warrant a trial de novo. The evidence offered, as well as that received, must all be embodied in the record in order to try a case de novo in the supreme court. 61 If it is not, it will be presumed the action of the court below was cor- rect. 62 Nor will it be sufficient simply to set out in the records the facts found by the court. 63 And if there is a stipulation as to the facts, it must appear that the cause was, in fact, tried on such facts. 64 A trial de novo will not, however, be defeated if it clearly appears from the evidence that the evidence omitted was irrelevant or im- material. 65 But an appellee can not be heard to object that evidence admitted against his objection is not con- tained in the abstract. 60 We have omitted a reference to the decisions under prior statutes of certain steps formerly necessary to insure a trial de novo, as they are so Richards v. Hintrager, 45-253; Nat. Bk. v. Ash, 85-74; Carlton v. Sisters of Visitation v. Glass, 45- Brock, 91-710; Wolrod v. Flanigan 154; Andrews v. Burdick, 62-714. 75-365; Parks v. Garner, 77-154;' eo Hobart v. Hobart, 45-501. Peoria Steam Marble Works v. i Krappel v. Pfiffner, 24-176; Linesenmeyer, 80-253; Bailey y' Maxwell v. Lundy, 19-576; Van Or- Green, 80-616; Shattuck v. Bur- man v. Spafford, 16-186; Anderson lington Ins. Co., 78-377; Harper v v. Easton, 16-56; Kellogg v. Kel- Gleyslein, 85-709; Miller v. Ter- sey, 16-388; Muslon v. Turner, 20- keldson, 80-476; Ainsiee v. Wynn, 294; Pickett v. Hawes, 20-335; 65 N. W., 401; Wallick v. Pierce,' Wetherell v. Goodrich, 22-583; 71 N. W., 429. Lillie v. Skinner, 46-329; Cook v. 62 state v. Orwig, 27-528; Garner Woodbury County, 13-21; Shear v. v. Pomroy, 11-149. Brinkman, 72-698; Wise v. Usry, ea Robb v. Dougherty, 14-379. 72-74; Moody v. Edwards, 72-456; 64 Davenport v. Ellis, 22-296. Underwood v. Lombard Inv. Co., es p a i o Alto County v. Harrison, 84-25; Giltrap v. Walters, T7-149; 68-81. Reed v. Larrison, 77-399; Second ee Clinton L. Co. v. Mitchell 61- 132. 1361.] APPELLATE PROCEEDINGS. 603 of no practical utility under the present law. Else- where, when treating of abstracts, we have considered fully what the abstract must contain in equity cases. 1361. Of the judge's certificate to the evidence, its requisites and when it must be filed. All the evi- dence must be taken in writing at the trial, or by deposi- tion, and must be certified by the judge within the six months allowed for an appeal; 67 and it must affirmative- ly appear that the certificate was signed within the statutory time. 68 Nor can this requirement of the statute be waived by act of the parties. 69 But this cer- tificate, if made in time, will not be affected by the fact that it was made after the appeal was taken. 70 It has been held that where the certificate of the clerk is suffi- cient to enable the court to try the case de novo, the re- quirements of the statute as to the time of the making of the judge's certificate are not applicable. 71 But see Teague v. Fortsch, 66 N. W., 1056, where the Cross case is> overruled. If the court orders the evidence taken down in shorthand, and it is so taken and properly certified at the time, and is afterward transcribed, that is a suffi- cient taking down in writing. 72 The evidence must be certified by the judge. 73 But it has been held that if the judge's certificate is made in due form to the reporter's original notes as filed, it might be considered as so con- nected with the transcript when made and filed in time, as to constitute, with the reporter's certificate, a suffi- cient certificate of the evidence; but the certificate would 67 Code, Sec. 3652; Mitchell v. W., 1056; Runge v. Hahn, 75-733; Lamb, 59-36; Paige County v. Am. Lewis v. Markle, 71-652. Em. Co., 61-246; Marshalltown v. s Russell v. Johnston, 67-279; Forney, 61-578; Preston v. Hale, Mitchell v. Laub, 59-36. 65-409; Hartnett v. Sioux City, 66- Q Hartnett v. Sioux City, 66-253. 253; Wisconsin, I. & N. R. Co. v. Goff v. Hawkeye P., etc., 62- Braham, 71-484; Burnett v. Lough- 691. bridge, 87-324; Yetzer v. Wiles, 91- ti Cross v. B. & S. W. R. Co., 58- 478; Baldwin v. Ryder, 85-251; 62. Jamison v. Weaver, 84-611; Kava- 72 Ross v. LoomSs, 64-432; Howe Her v. Machula, 77-121; Thomas v. v. Jones, 66-156. McDonald, 77-126; State v. Boyd, 73 Carskaddon v. Bartlett, 63- 85-740; Teague v. Fortsch, 66 N. 180; Blanchard v. Devoe, 80-521; see No. 67 above. 604 APPELLATE PROCEEDIXGS. [ 1361. not be deemed complete until the transcript is made and certified by the reporter. 74 It is no objection to the trial of a case de novo that the evidence was not taken down by the reporter when it is tried on written evidence. 75 The judge's certificate has been held insufficient when not attached to any evidence or referring to any testi- mony as having been taken in writing. 76 But when, on a trial of an issue as to one defendant, he introduced the same evidence that was used on the hearing of the case as to another defendant, it w r as held that the evidence having been certified as introduced on the first trial, it need not be again certified. 77 The judge actually trying the case is the one to make the certificate, even though he is holding the court in ex- change with the regular judge. 78 It cannot be made by his successor in office. 79 But the statute now authorizes such signing by the successor. 80 The certificate of the judge must show that all the evidence offered is before the court; that it is all the evidence "introduced," is not sufficient 81 Nor is a certificate that it was all the evi- dence "used" 82 or "adduced." 83 But a certificate that it was all the evidence "offered, adduced and introduced," is sufficient, 84 and so is one that it "is all the evidence offered in said trial, as well as the evidence introduced and admitted and used in the trial," 85 or that it is "all the evidence submitted in said cause." 80 If a judgment appealed from is rendered on a referee's report it is not sufficient that the evidence is certified by such referee; it must also be certified by the judge. 87 Under the present statute, if the parties agree on the 74 Merrill v. Bowe, 69-653. Groneweg v. Barnum, 70-763; Polk 75 Gately v. Kniss, 64-537. v. Sturgeon, 71-395; Second Nat. 76 Alexander v. McGrew, 57-287; Bk. v. Ash, 85-74; Baldwin v. Ry- see Palo Alto County v. Harrison, der, 85-251. 68-81. 82 Hart v. Jackson, 57-75. 77 JEtna. L. Ins. Co. v. Bishop, ss Tuttle v. Story County, 56-316. 69-645. 84 Marshalltown v. Forney, 61- TS Howe v. Jones, 66-156. 578. 70 Teague v. Fortsch, 66 N. W., *$ Wood v. Wood, 61-256. 1056. 86 Miller v. Wolf, 63-233. so Code, Sec. 3749. 87 Porter v. Everett, 66-278; si Taylor v. Kier, 54-645; see Young v. Scoville, 63 N. W., 607. 1301.] APPELLATE PROCEEDINGS. 605 facts and reduce them to writing, such statement takes the place of depositions or of oral testimony reduced to writing, and becomes the evidence in the case, and upon such evidence the case may be tried de novo. 88 FORM OF CERTIFICATE OF SHORTHAND REPORTER TO HIS STENOGRAPHIC NOTES. Title, ) Venue, j I, , being the official shorthand reporter of the district court in and for the judicial district of Iowa, which district embraces the county of , do hereby certify that the above entitled cause was on the - - day of , 18 , tried before his honor (name of trial judge), at (name place) that I took down in shorthand the entire proceedings upon said trial, except the arguments of counsel, and that the shorthand notes to which this certificate is attached, embrace and contain, together with the exhibits, depositions and documentary evi- dence therein referred to and identified, all the evidence offered, re- ceived or introduced upon said trial, all objections to evidence offered as well as to that introduced; all rulings upon the same and all excep- tions thereto, and all proceedings had and done upon said trial, except the arguments of counsel. Dated this - day of , 18. (Signature.) Official shorthand reporter of the judicial district of Iowa. This certificate should be filed attached to the notes and filed with the same at the conclusion of the trial. It is well also to at the same time have the trial judge certify to the notes. Such certificate may be in the following form: FORM OF CERTIFICATE OF TRIAL JUDGE TO SHORTHAND NOTES. Title, Venue. I, , judge of the judicial district of Iowa, do certify that the shorthand notes above certified by , who is the official shorthand reporter of this judicial district, and to which this certificate is also attached do, together with the exhibits, depositions and docu- mentary evidence therein referred to and identified, embrace all of the evidence offered, received or introduced upon the trial of the above entitled cause, all objections thereto, all rulings on the same and all exceptions taken thereto, and all proceedings had and done on said trial ss Williams v. Wells, 62-740. GOG APPELLATE PROCEEDINGS .[1361. except the arguments of counsel, and the same are hereby made a part of the record in the case as provided by law. Dated this day of , 18. (Signature.) Judge of the Judicial District of Iowa. This certificate should be made as soon as the trial is concluded, and be attached to said notes, together with the reporter's certificate, and filed at once with the clerk. When the notes are transcribed into long hand the fol- lowing form of certificate may be used: FORM OF REPORTER'S CERTIFICATE TO TRANSLATION OF HIS SHORTHAND NOTES. Title, Venue. I, , the official shorthand reporter of the judicial dis- trict of Iowa, hereby certify that the above entitled cause was on the day of , 18 , tried before the honorable (name of judge) at (name the place); that I took down on said trial, in shorthand, the entire proceedings had therein, except the arguments of counsel, and that the above and foregoing is a correct translation of my said short- hand notes and that said translation to which this certificate is attached embraces, together with the exhibits, depositions and documentary evi- dence therein referred to and identified, all the evidence offered, re- ceived or introduced upon said trial, all objections to evidence offered, as well as to that introduced; all rulings upon the same, and all excep- tions thereto, and all proceedings had and done upon said trial, except the arguments of counsel. Dated this day of , 18 . (Signature.) Official shorthand reporter of the judicial district of Iowa. To this should be attached the judge's certificate, when the paper should be filed. From the foregoing forms a judge's certificate to the translation of the notes can readily be drawn. If evidence is adduced upon some interlocutory matter, as on a motion for a change of venue, a challenge to the panel of jurors, motion for a new trial, based upon mis- conduct of court, counsel, or jury, or in other like cases, the record must show that the supreme court has all of the evidence before it upon which the trial court acted. In such cases such evidence should be embodied in the bill of exceptions, which should clearly state that it con- tains all of the evidence relating to any such matter which it is desired to have the supreme court pass upon, 1362-1364.] APPELLATE PROCEEDINGS. 607 else snck question will not be considered. Of course the bill must be properly certified. See chapter on bills of exceptions. If it is desired to raise any question on the arguments of counsel and the above forms are used they should be so changed as to embrace the arguments. 162. Of the clerk's certificate, The certificate of the clerk that the transcript contains all the evidence on file does not sufficiently show that it was all the evi- dence used in the trial in the court below. 89 A certificate by the clerk that the printed abstract is an abstract of all the evidence as shown by the transcript made by the of- ficial reporter does not show that the record contains all the evidence. 90 1363. Of the hearing and determination of ap- peals in equitable actions. On an appeal in an equit- able action triable de novo, the court will inquire into the merits of the case, for the purpose of administering justice, guided only by the universal principles of equity jurisprudence. It will not be confined to errors apparent of record. 91 It will review and pass upon the facts, as well as the law of the case, 92 and will render such a judg- ment as the lower court should have rendered on the law and facts. 93 But it can only act on the testimony pre- sented and considered by the court below. 94 1364. Of questions as to the admissibility of evi- dence. On the trial of cases de novo on appeal, ques- tions as to the competency of testimony, admissibility of depositions, and the like, come up as original questions upon the objections made in the court below, and upon their decision the testimony is considered or rejected, as the case may be. If such testimony is found competent and admissible, it is considered, although excluded by the lower court; but the decision will not be thereby re- so Grant v. Grant, 46-478; Daven- i Austin v. Carpenter, 2 G. Gr., port v. Ells, 22-296; see Teague v. 131. Fortsch, 66 N. W., 1056. 02 Pierce v. Wilson, 2-20. 90 Collins v. Wilson, 68 N. W., 3 Sherwood v. Sherwood, 44-192. 916. 04 Walker v. Ayres, 1-449; Mc- Gregor v. Gardner, 16-538. 608 APPELLATE PROCEEDINGS. [ 1365. versed, unless the consideration of such testimony makes a different conclusion necessary. 95 Xor will a case be reversed for error in the admission of evidence. 96 The proper practice in the trial of such actions in the court below is to admit all of the evidence offered subject to the objection, or at least to have it made a part of the record, even though objections thereto are sustained; if this is not done, the cause may sometimes be remanded, or the defeated party will be compelled to have a review of the questions which are not permitted to be answered on error. 97 It was held in the trial of an equitable ac- tion where a deposition was erroneously stricken from the files, that the supreme court would not try the case de novo, considering such deposition, but would remand the case for a new trial to enable the party to introduce further evidence. 98 All questions may be presented in the supreme court w r hich legitimately arise on the record, whether urged or relied on in argument in the lower court or not. 1 Alleged errors in interlocutory pro- ceedings will not be considered, but. the case will be tried on its merits. 2 1365. When the case will be remanded. The de- cree of the lower court will be reversed when it is ap- parent from the record that there is not sufficient evi- dence to sustain it, but if the record entry recites that there was other evidence which would be sufficient, and which may have been lost, the case will be remanded for a re-trial. 3 But ordinarily it is not the duty of the court to remand the case when the evidence is not sufficient to support the judgment of the court below. 4 When, for want of proper steps being taken, the case, though equit- 5 Blough v. Van Hoorebeke, 48- s Sweet v. Brown, 61-69. 40; see Van Bogart v. Van Bogart, i Seymour v. Shea, 62-708. 46-359; Putney v. O'Brien, 53-117; 2 Hackworth v. Zollars, 30-433; Redhead v. Pratt, 72-99; Graf ton v. State v. Orwig, 27-528. Moorman, 88-736. 3 Webster County v. Taylor, 19- scRasner v. Patterson, 70-681; 117. see Hanks v. Van Garden, 59-179. * Wickersham v. Reeves, 1-413; o- Blough v. Van Hoorebeke, 48- Buttc'-field v. Wilton Collegiate 40; Clinton Lumber Co. v. Mitchell, Inst., 85-404. 61-132; Donnell v. Braden, 70-551. 1366, 1367.] APPELLATE PROCEEDINGS. 609 able, is not triable de novo and is tried on errors as- signed, it must be remanded for further proceedings in the lower court. 5 So a cause may be remanded to make necessary parties thereto. 6 1366. Of the decree in a cause triable de novo A decree will not be so modified as to render it more fa- vorable to the party not appealing. 7 Where the record does not show that the appeal was taken for delay, and the judgment of the lower court is affirmed after the ex- piration of the time fixed therein for performance by the unsuccessful party, the time of performance will be so extended as to permit him to perform. 8 Where the case is tried anew, and the action of the court below held er- roneous, the successful party is entitled to have such a decree as is proper on the record as made in the court below entered up in the supreme court; 9 yet there are exceptions to this rule. 10 1367. Of proceedings in the lower court in an equitable action after it is remanded. After the case is tried and remanded for decree in accordance with the decision of the supreme court, the pleadings can not be so amended as to present a defense which existed when the case was tried, except in rare cases. 11 But when a cause is thus remanded, it is in the discretion of the lower court to admit evidence omitted by inadvertence, or additional or amended pleadings may be permitted to be filed. 12 But material evidence discovered since the original trial, and matters arising since such trial which affect the merits of the case, may be shown after a cause is remanded, and the pleadings may be amended accord- ingly. 13 If the cause is remanded merely for judgment, it must be rendered as a matter of course, and upon mo- s Jordan v. Wisner, 48-180; 10 White v. Farlie, 67-628, and Kershman v. Swehla, 62-654. cases cited. s Postlewait v. Howes, 3-365. "Sexton v. Henderson, 47-131; T Smith v. Wolf, 55-555. see No. 12. s Daniels v. St. L., K. C. & N. 12 Adams County v. B. & M. R. R. Co., 56-192. R. Co., 44-335. First Nat. Bk. v. Baker, 60-132. is Sanxey v. Iowa C. G. Co., 68- 542. Vol 1139 610 APPELLATE PEOCEEDIXGS. [ 1368. tion, unless the unsuccessful party brings himself within some recognized rule entitling him to a new trial. 14 Where decree in partition allowed plaintiff for rents up to time of trial was modified as to some of the interests of the parties and remanded and a supplemental petition filed in the lower court claiming rents for the property after the trial, it was held that it did not set up a new cause of action, and the relief so demanded was prop- erly given on final decree. 15 The statement in an opinion on appeal as to a question of fact is not conclusive on the lower court on a second trial of the case. 16 1368. Questions not raised in court below will not be considered on appeal. We have before stated that the supreme court will not review or pass upon questions not raised in the court below; nor will it cor- rect errors which could have been corrected in the court below, until after a motion has been made in such court and overruled. 17 No useful purpose could be subserved by citing all of the cases applicable to the above proposi- tion, but the following cases are stated wherein it has been applied, viz.: To cases w r here new issues and new objections are first made in the appellate court. 18 When it is sought to sustain an erroneous ruling on a ground not urged below. 19 Objections to the service of the notice not made below. 20 Where objection is first made in the supreme court to the jurisdiction of the lower i* Austin v. Wilson, 57-586. 392; Zabel v. Nyenhuis, 83-756; is Leach v. Germania Building Shuck v. Chicago, R. I. & P. R. Co., Ass'n, 70 N. W., 1090. 73-333; Grill v. Jeffreys, 64 N. W., "Baxter v. Rollins, 68 N. W., 625; Leick v. Tritz, 62 N. W., 855; 721. Logan v. McCahan, 71 N. W., 252; IT Garvin v. Cannon, 53-716. Wilson v. Reddick, 69 N. W., 1039; is Patterson v. Stiles, 6-54; Me- Bull v. Keenan, 69 N. W., 433; Gregor v. Gardner, 16-568; Adams Boos v. Dulin, 68 N. W.,707; Means County v. B. & M. Co., 44-335; v. Yeager, 65 N. W., 993; Casey v. Oliver v. Depew, 14-490; Garland Ballow Banking Co., 67 N. W., 98; v. Wholebau, 20-271; Brazelton v. Moore v. Graves, 65 N. W., 1008; Jenkins, Morris, 15; Lower v. Klotz v. James, 64 N. W., 648; Lower, 46-525; Hinkle v. Saddler, Tyler v. Coulthard, 64 N. W., 681; 66 N. W., 765 Chase v. Kaynor, 78- State v. Seery, 64 N. W., 631; Hoff- 449; Brandt v. Allen, 76-50; Pence man v. Smith, 63 N. W., 182. v. Chicago, R. I. & P. R. Co., 79- 10 Knapp v. Sioux C. & P. R. Co., 389; Gate City Land Co. v. Heil- 65-91. man, 80-477; Benjamin v. Shea, 83- 20 Des Moines v. Layman, 21-153. 13G8.] APPELLATE PROCEEDINGS. 611 court. 21 Unless it appears that the trial court had no jurisdiction. 22 Objections to pleadings not raised by motion or demurrer t>elow. 23 Objections that the relief ranted was not asked for in the pleadings. 24 A defense not pleaded in the court below will be disregarded. 25 The question of variance between pleadings and proofs can not be first raised in the supreme court. 26 Nor can the fact that the jury was not sworn. 27 Objections to evidence ean not be first made in the ap- pellate court. 28 Nor to the form of the judgment. 29 Nor can a motion to vacate an injunction be first made after appeal; 30 and a question which can only be raised by a motion for judgment non obstante verdicto can not be first raised on appeal. 31 Nor can objections which might have been corrected below by a motion in arrest of judg- ment. 32 Nor objections that the judgment was exces- sive. 33 Nor an objection that the judgment was improp- erly entered. 34 Nor will a judgment by default be re- viewed until a motion has been made in the lower court to set it aside, and overruled. 35 Nor an error in the taxa- 21 Bridgman v. Wilcut, 4 G. Gr., 26 Singer v. Given, 61-93; Ress- 563; Davenport v. C., R. I. & P. R. ler v. Baxley, 81-750; JEtna Iron Co., 38-633; Spelman v. Gill, 75- Works v. Firmenich Mfg. Co., 90- 717; Corey v. Sherman, 64 N. W., 390. 828. 27 state v. Schlagel, 19-169. 22 Gould v. Hurto, 61-45; Grover 28 Johnson v. Miller, 69-562; v. Richmond, 53-570; St. Joseph State v. McLaughlin, 44-82; Coun- Mfg. Co. v. Harrington, 53-380. cil Bluffs L. v. Billups, 67-674; 23 Ruddick v. Patterson, 9-103; Luke v. Bruner, 15-3; Iowa H. Co. Williams v. Sill, 12-511; Davis v. v. Duncombe, 51-525; Childs v. Mc- Burt, 7-56; Gifford v. Ferguson, Chesney, 20-431; Lines v. Lines, 54- 19-166; McCoy v. Connell, 40-457; 600; Davidson v. Dwyer, 62-332; Moser v. Risdon, 46-251; Davis v. Sawin v. Union Building & Sav. Walter, 70-465; Wilson v. Harris, Ass'n, 64 N. W., 401. 68-443; Dubuque & S. C. R. Co. v. 29 Barlow v. Brock, 25-308; Rob- Cedar Falls & M. R. Co., 76-702; inson v. Keith, 25-321. Garrett v. Polk County, 78-108; so Bishop v. Carter, 29-165. Scott v. Chicago, M. & St. P. R. 3i Coonrod v. Benson, 2 G. Gr., Co., 78-199; Adams County v. 179. Hunter, 78-328; Mann v. Taylor, 32 Smith v. Warren County, 49- 78-355; Winkleman v. Winkleman, 336. 79-319. 33 Black v. Boyd, 52-719; Dickey 2-1 Iowa L. Co. v. Foster, 49-25; v. Harmon, 26-501; Finch v. Bil- Williams v. Wilcox, 66-65; see lings, 22-228; Keller v. Jackson, 58- Hoyt v. Hoyt, 68-703. 629. 25 Thompson v. Lee County, 22- 34 Carmichael v. Vandebur, 50- 206; Barlow v. Brock, 25-308; 561. Pierce v. Early, 79-199. 35 Hunt v. Stevens, 25-261; Sav- G12 APPELLATE PEOCEEDIXG3. [ 1369. tion of costs until a motion to re-tax has been made and overruled below. 36 Xor can mistakes of the clerk be first urged in the supreme court. 37 And the following ob- jections can not be first raised in the supreme court. An objection to the sufficiency of an affidavit for an attach- ment on motion to dissolve. 38 An objection to the form in which instructions were given, not made at the time they were given. 39 An objection not based on an ex- ception taken on the trial in the lower court. 40 An ob- jection to the action of the court in transferring a cause to the equity docket. 41 An objection to the form of an issue presented to the jury in an equity case. 42 To the allowance of interest upon the verdict of a jury from the time of the commencement of the action. 43 To an as- sessment of damages on an injunction long after its dis- solution. 44 To a decree of costs against defendants with- out specifying which one should pay them. 45 An objec- tion to the sufficiency of newly discovered evidence and to the affidavits embodying the same, not made in the court below. 46 For a misjoinder of parties not made be- low. 47 No appeal can be based on a ruling subsequently changed or set aside by the court. 48 1369. Of the presumptions which obtain with reference to the regularity of the proceedings of the court below. Every reasonable presumption will be entertained in favor of the ruling of the lower court, until overcome by something appearing of record, and ings Bk. v. Horn, 41-55; Pigman v. Corn Exchange Bank v. Schuttle- Denney, 12-396; McKinley v. Been- worth, 68 N. W., 827; Kelley v. Inc. tel, 12-561; Van Vark v. Van Dam, Town of West Bend, 70 N. W., 726; 14-232; Downing v. Harmon, 13- State v. Lee, 64 N. W., 284. 535; Pratt v. Western S. Co., 27- Gate City Land Co. v. Heil- 363. man, 80-477. se Hemphill v. Sallady, 1 G. Gr., Chamberlin v. Juppiers, 11- 801; Yeager v. Circle, 1 G. Gr., 438. 513. 37 Daniels v. Claflin, 15-152. Wadsworth v. Harrison, 14- ss Berry v. Gravel, 11-135. 272. 39 Davenport v. Cummings, 15- ** Woods v. Irish, 14-427. 219. 45 Martin v. Jones, 15-240. o Spelman v. Gill, 75-717; State * Darrance v. Preston, 18-398. v. Reasby, 69 N. W., 451; Dean v. *? Evans v. Hawley, 35-83. Zenor, 65 N. W., 410; Nat. Horse Thompson v. Burnham, 35-411. Impt. Co. v. Novak, 64 N. W., 616; 1369.] APPELLATE PKOCEEDINGS. 613 error must be made affirmatively to appear. 49 Thus it will be presumed that there was sufficient testimony to support the judgment, unless the contrary appears. 50 And in favor of the finding of the court, it will be pre- sumed that there was lawful evidence on w r hich to base it. 51 Nor will the appellate court presume that the proof in a case established a state of facts which would render the decision of the court below erroneous, if a state of facts can be supposed under which such decision would be correct, 52 Where no finding of facts is made, the pre- sumption is that the court found such facts as justified its conclusions of law, unless the contrary appears. 53 If a judgment is based on an authentication of a judgment from another State, which is insufficient, it will be pre- sumed that there was other evidence showing the judg- ment. 54 If attorney's fees are taxed after the rendition of a judgment in the case, it will be presumed such taxa- tion was made upon proper evidence, 55 and the same 49 Davis v. Moffltt, 4 G. Gr., 92; 78-632; Short v. C., M. & St. P. R. Hendrie v. Rippey, 9-351; David v. Co., 79-73; Ida County v. Woods, Leslie, 14-84; Morris v. Steele, 62- 79-148; State v. Coppock, 79-482; 228; Hintrager v. Kiene, 62-605; Ecklund v. Talbot, 80-569; Gavin Brobst v. Thompson, 4 G. Gr., 135; v. Bishoff, 80-605; Blair v. Madison Speers v. Fortner, 6-553; Scofield County, 81-313; Pickerell v. Hiatt, v. Ford, 56-370; Bower v. Webber, 81-537; Nat. State Bk. v. Boesch, 69-286; Hunt v. Highman, 70-406; 90-47; Wright v. Farmers Mut. State v. Hopkins, 67-285; Holland Live Stock Ins. Ass'n, 65 N. W. f v. Union County, 68-56; Keys v. 308; McVey v. Johnson, 75-165; Francis, 28-321; Fouts v. Pierce, Read v. Divilbliss, 77-88; Cahalan 64-71; Dixon v. State, 3-416; Isett v. Cahalan, 82-416; State v. Potts, v. Oglevie, 9-313; Stewart v. Bish- 83-317; Wightman v. Butler op, 33-584; State v. Foster, 40-303; County, 83-691; Bruner v. Wade, Thompson v. Winnebago County, 84-698; Donnelly v. Cedar County, 48-155; Pottawattamie County v. 75-536; Winey v. C., M. & Zt. P. R. Marshall County, 56-410; State v. Co., 92-622. Ross, 21-467; Ward's Heirs v. so Brady v. Malone, 4-146; Hef- Cochran, 36-432; Johnson v. Mantz, ferman v. Burt, 7-320; Jennings v. 69-710; State v. Gibbs, 39-318; Conn, 11-542; Willett v. Millman, Worthington v. Olden, 31-419; 61-123; Phillipps v. Phillipps, 46- Calder v. Smalley, 66-219; State v. 703; Ida County v. Woods, 79-148. Saunders, 30-582; Mills County Bk. si Henry v. Evans, 58-5<50; Bu- v. Perry, 72-15; In re Will of Nor- ford v. DeVoe, 65 N. W., 413; Wat- man, 72-84; Arneson v. Thorstad, kins v. Powell, 68 N. W., 597; City 72-145; Nat. State Bk. v. Delahaye, of Burlington v. Unterkircher, 68 82-34; Pierce v. Herrold, 83-764; N. W., 795. Smith v. Yager, 85-706; Minnesota 52 Crane v. Ellis, 31-510. Stone Ware Co. v. Knapp, 75-561; 53 Qskaloosa v. Pinkerton, 51- Donnelly v. Burkett, 75-613; Foster 697. v. Hinson, 76-714; Pingery v. C. & 54 ciemmer v. Cooper, 24-185. D. R. Co., 78-438; Ellis v. Butler, ss Kelso v. Fitzgerald, 67-266. 614 APPELLATE PROCEEDINGS. [ 1369. presumption exists to justify a finding that the defend- ant was duly and legally served with process. 56 So it will be presumed that there was evidence to support a default. 37 And if a decree recites that certain matters essential to the jurisdiction of the court were made to appear, it will be presumed such was the fact. 58 And when the record showed that the trial was not had to a jury, it will be presumed that a jury was waived. 59 The error must not only affirmatively appear, but it must do so with reasonable certainty. 60 The same presumption exists in favor of a record, 61 and as to pleadings, 62 and as to incidental rulings of the court during the trial. 63 When it appears that a motion or demurrer was filed, but the record is silent as to any ruling thereon, it will be presumed it was waived. 64 If no ground can be discov- ered or pointed out upon which the action of the court can be upheld, the presumption of regularity will be overcome. 65 If objection to the evidence is sustained, and the record does not show the ground of the objec- tion, if the evidence is vulnerable to any objection, it will be presumed that one was made and sustained. 66 Nor will it be presumed that the action of the court was based on anything not appearing of record when no other evidence than that of record could have been introduced in the court below. 67 The same presumptions as to regu- larity obtain with reference to the instructions given by the court below. 68 BO Kent v. Coquillard, 67-500. First Nat. Bk. v. Carpenter, 41-518; " Semple v. Lee, 13-304. Moore v. Gilbert, 46-508; Payne v. ss Jewett v. Miller, 12-85. Dicus, 88-423; Schroeder v. Web- 59 Hawkins v. Rice, 40-435. ster. 88-627; Corey v. Gillespie, 62 eo Randolph Bk. v. Armstrong, N. W., 837; Langhammer v. Man- 11-515; Gantz v. Clark, 31-254. Chester, 68 N. W., 688. GI Mahaska County v. Ruan, 45- os Baird v. C., R. I. & P. R. Co., 328; Mackemer v. Benner, 1 G. Gr., 61-359; see Emery v. Emery, 54- 157. 106. 2 Hervey v. Savery, 48-313. en Hoben v. B. & M. R. R. Co., es Clinton Nat. Bk. v. Torry, 30- 20-562. 85; Thompson v. Burnham, 35-411; T McGovern v. Keokuk L. Co., McCue v. Wapello County, 56-698. 61-265. e* Sigler v. Woods, 1-177; Busick es stier v. Oskaloosa, 41-353; v. Bumm, 3-63; Boardman v. Beck- Moody v. St. P. & S. C. R. Co., 41- with, 18-292; State v. Ross, 21-467; 1370, 1371.] APPELLATE PBOOEEDIiN GS. 615 1370. Same When the evidence is not all be- fore the court. If the evidence is not all before the court it will be presumed that there was evidence suf- ficient to support the verdict. 09 So it will be presumed that a sufficient showing was made to justify the court in dissolving an injunction, 70 and that there was evi- dence warranting the giving of the instructions which were given. 71 When the abstract only obtains a small part of the evidence an instruction can not be reviewed where the evidence must be consulted in order to de- termine its correctness. 72 Where instructions clearly relate to a matter of law, as shown by the pleadings, they will be considered on appeal in the absence of the evi- dence. 73 The same presumptions of regularity obtain in actions in equity, as at law. 74 1371. What is error without prejudice Gen- erally. The statute has wisely provided that no, excep- tion shall be regarded in the supreme court unless the ruling has been on a material point, and the effect thereof prejudicial to the rights of the party excepting. 75 284; State v. Stanley, 48-221;. War- Murray, 75-173; Coleman v. Reel, bassee v. Card, 74-306. 75-304; King v. Mahaska County, 09 State v. Pittman, 38-252; 75-329; Mclntire v. Eastman, 76- Wicke v. Iowa State Ins. Co., 90-4; 455; State v. Row, 81-138; Church- State v. Drorsky, 73-484. ill v. Groneweg, 81-449; Fisk v. C., TO Gray v. Montgomery, 17-66. M. & St. P. R. Co., 83-253; Hagan 71 Blackburn v. Powers, 40-681; v. Merchants, etc., Ins. Co., 81-321; Gantz v. Clark, 31-254; Rice v. Des Flanigan v. B. & O. R. Co., 83-639; Moines, 40-638; State v. Hemrick, Phelps v. Walkey, 84-120; Croddy 62-414; Wallace v. Roff, 37-192. v. C., R. I. & P. R. Co., 91-598; 72 Molony v. Railway, 63 N. W., Trulock v. Donahue, 85-748; Seska 690. v. C., M. & St. P. R. Co., 77-137; 73 Seevers v. Cabel, 62 N. W., Bever v. Spangler, 93-576; Ft. Mad- 669. ison L. Co. v. Batavian Bank, 77- 7i Garner v. Pomory, 11-149. 393; Chase v. Kaynor, 78-449; Rap- 75 Code, Sec. 3754; Hawkeye Ins. pleye v. Cook, 79-564; Worden v. Co. v. Brainard, 72-130; Moses v. H. & S. R. Co., 76-310; Edergly v. Penquit, 72-611; Potts v. Tuttle, 79- Stewart, 86-87; Hathaway v. B., C. 253; Chicago, R. I. & P. R. Co. v. R. & N. R. Co., 66 N. W., 892; Dey, 76-278; Schoenhofel Brewing Jones v. Cooper, 65 N. W., 1000; Co. v. Armstrong, 89-673; Whitney Mellerup v. Travelers Ins. Co., 63 v. Brownell, 71-251; Deere v. Wolf, N. W., 665; White v. Byam, 64 N. 77-115; Mayne v. Council Bluffs W., 765; Richardson v. McLaugh- Sav. Bk., 80-710; Farmers Bank v. lin, 92-393; Ida County v. Woods, Arthur, 75-129; Carruthers v. Me- 79-148. 016 APPELLATE PROCEEDINGS. [ 1371. And it has been very often decided that a cause would not be reversed on account of error committed by the court below, unless such error has, in fact, prejudiced the case of the one complaining, and, generally, that fact must be shown by the appellant. 76 But sometimes it is held that if the error appears it will be presumed to have been prejudicial. 77 Error will be regarded as without prejudice when it appears that justice has been done and that a new trial would result in the same verdict or judgment. 78 And this is so, though the jury failed to jrive nominal damages. 79 And error which would be o o ground for reversal of a cause may be waived by the act of the party complaining; thus rulings on motions to strike out evidence not having been made or insisted on, error in admitting the evidence is waived. 80 So subse- quent acts of the court may cure errors previously com- 76 Bremer County Bk. v. East- man, 34-392; Tuck v. Singer Mfg. Co., 67-576; Hoadley v. Hammond, 63-599; Boyce v. Wabash R. Co., 63-70; Wilson v. Me Adams, 10-590; Hoy v. Cowgill, 52-711; State v. Woodson, 41-425; Union, etc., v. Neill, 31-95; Will v. Wright, 32- 451; Hamilton v. Floyd, 20-598; Crawford v. Paine, 19-172; Hamil- ton v. Thorn, 66 N. W., 166; White v. Byam, 64 N. W., 765; see cases last above cited. 77 Smith v. Johnson, 45-308; Pot- ter v. C., R. I. & P. R. Co., 46- 399; Strobel v. Moser, 70-126; Car- lin v. C., R. I. & P. R. Co., 31-370; Bland v. Hixenbaugh, 39-532; Roby v. Appanoose County, 63- 113; Harrison v. Charlton, 37-134; George v. K. & D. M. R. Co., 53- 503; Ferguson v. Davis County, 51- 220; Moore v. C., St. P. & K. C. R. Co., 93-484; Neville v. C. & N. W. R. Co., 79-232; State v. Adams, 78-292. 78 Dawson v. Wisner, 11-6; Brad- dy v. Lumery, 11-29; Allison v. King, 25-56; McNally v. Shobe, 22- 49; Cooper v. Central R. of la., 44-134; Jamieson v. Perry, 38-14; Whiting v. Root, 52-292; Callanan v. Shaw, 24-441; Keokuk County v. Howard, 42-29; Blair Town Lot & Land Co. v. Hillis, 76-246; Newell v. Martin, 81-238; Rappleye v. Cook, 79-564; Van Gorder v. Sherman, 81-403; Ellithorpe v. Reidessell, 88-729; Ady v. Free- man, 90-402. 7 Watson v. Van Meter, 43-76; Rowley v. Jewett, 56-492; Phoenix Ins. Co. v. Findley, 59-591; Case, etc., v. Haven, 65-359; Watson v. Moeller, 63-161; Wire v. Foster, 62- 114; Norman v. Winch, 65-263; Madison County v. Tullis, 69-720; Thorpe v. Bradley, 75-50; Stuart v. Trotter, 75-96; Cook v. C., M. & St. P. R. Co., 83-278; Harwood v. Lee, 85-622; Schwartz v. Davis, 90-324; Tank v. Rohweder, 67 N. W., 106; Crawford v. Bergen, 91-675; Wil- liams v. Brown, 76-643; Faulkner v. Closter, 79-15; Fleming v. Stearns, 79-256. so State v. Stickley, 41-.J2; Prichard v. Hopkins, 52-120; Rock v. Wallace, 15-379; Wilson v. Mc- Adams, 10-590; Tyler v. Lang- worthy, 37-555; Anderson v. Cahill, 65-252; Putney v. O'Brien, 53-117; Henderson v. C., R. I. & P. R. Co., 48-216; State v. Eifert, C5 N. W., 309; Langhammer v. City of Man- chester, 68 N. W., 688. 1372, 1373.] APPELLATE PROCEEDINGS. 617 mitted. 81 And subsequent circumstances may render error without prejudice to the complainant. 82 1372, When rulings upon demurrer or with reference to pleadings will be without prejudice. If a demurrer is based on an insufficient ground and sus- tained, it will be without prejudice if it appears that there could have been no recovery upon the count to which the demurrer was directed; 83 and where the ac- tion is determined in favor of the party complaining, error in sustaining a demurrer to a portion of the peti- tion will be without prejudice, 84 and the same is true when the issue presented and ruled out on demurrer, is elsewhere presented and submitted to the jury. 85 And when the party amends after a demurrer is sustained; 86 and when a demurrer is overruled, but under the in- structions the issue presented in the demurrer was ex- cluded from the jury. 87 Error in striking an answer from the files is cured by permitting the defendant to prove the defense set up therein when the evidence fails to establish it, 88 and refusing to permit an amended answ T er to be filed will be error without prejudice, when the facts alleged therein might have been proved under the orig- inal answer. 89 1373. Of error without prejudice in rulings upon the evidence, etc. If the error in the admission or re- jection of testimony has worked no prejudice to the party complaining, the cause will not be reversed on ac- count pf such error. 90 The exclusion of evidence is error si Williams v. Brown, 28-247; ss Childs v. Dobbins, 61-109. Van Horn v Overman, 75-421; s* Scott v. Union County, 63-583. Amos v. Buck, 75-651; Way v. C. ^ McKeever v. Jenks, 59-300. & N. W. R. Co., 76-393; Seekel v. se Gillis v. Matthews, 4 G. Gr., Norman, 78-254; State v. Shank, 254. 79-47; In re Assignment of Rea, ST Flannagan v. McWilliams, 52- 82-231; Cahalan v. Cahalan, 82-416; 148; see Dist. Twp. v. Ind. Dist., Rea v. Scully, 76-343; State v. 63-188. Craig, 78-637; Hurlbut v. Harden- ss McNamara v. Estes, 22-246. brook, 85-606. * Hough v. Housel, 20-19; see 82 State v. Waterloo Sav. Bk., 39- Tabor v. Foy, 56-539. 706; Cutcomp v. Utt, 60-156: Ham- o Woodward v. Horst, 10-120; mitt v. Coffin, 3 G. Gr., 205; Wit- Quinton v. Van Tuyl, 30-554; more v. Burgan, 70-161; State v. Cooper v. Mills County, 69-350; An- Powell, 70 N. W., 592. drews v. Woodcock, 14-397; Drath 618 APPELLATE PROCEEDINGS. [1373. without prejudice when the witness is afterward al- lowed to testify fully as to the matters called for and ob- jected to. 91 And error in allowing the introduction of only a portion of a deposition is cured if the entire depo- sition is afterward introduced. 92 And error in overruling a motion to suppress a depo- sition will be without prejudice when the witness testi- fies in person, and his testimony is more favorable to the party complaining than that in the deposition. 93 Xor will it be reversible error to admit evidence to establish a fact when it is sufficiently established by other com- petent evidence. 94 And error in rejecting evidence will be without prejudice w r here the facts sought to be proved by such evidence are otherwise fully established. 95 A cause will not be reversed on account of a mere abstract error which could have worked no prejudice. 96 And v. Deitz, 15-436; Pelamourges v. Clark, 9-1; Chambers v. Grout, 63- 342; McKenzie v. Kilter, 27-254; Curl v. C., R. I. & P. R. Co., 63- 417; Weitz v. Ewen, 50-34; Walsh v. JEtna L. Ins. Co., 30-133; Mur- ray v. Wells, 57-26; Robinson v. Keith, 25-321; Kelley v. Ford, 4- 140; State v. Hallett, 63-259; Bray- ley v. Ross, 33-505; Courtwright v. Strickler, 37-382; Jaques v. Sax, 39-367; Holt v. Brown, 63-319; Bar- ker v. Kuhn, 38-392; State v. Smith, 46-670; Langford v. Ottum- wa W. P. Co., 59-283; Amsden v. D. & S. C. R. Co., 13-132; Asbach v. C., B. & Q. R. Co., 86-101; Be- ver v. Spangler, 93-576; State v. Smith, 68 N. W., 428; Ludwig v. Blackshere, 71 N. W., 356; Hauser v. Griffith, 71 N. W., 223. m Keough v. Scott County, 28- 337; State v. Geddis, 42-264; Alli- son v. C. & N. R. Co., 42-274; Ham v. W., I. & N. R. Co., 61-716; Reed v. C., R. I. & P. R. Co., 57-23; Abell v. Cross, 17-171; State v. Nel- son, 58-208; Belair v. C. & N. W. R. Co., 43-662; Sprague v. Atlee, 81-1; Miller v. James, 86-242; Brown v. S. C. & P. R. Co., 62 N. W., 737; Rosenthal v. Miller, 79-130; Bailey v. Bailey, 63 N. W., 341; Nagle v. Fulner, 67 N. W., 369; Kelly v. Stone, 62 N. W., 842; Orr v. Rail- way, 62 N. W., 851; Trimble v. Tantlinger, 69 N. W., 145; Strong v. Railway, 62-799. 2 Bixby v. Cascaddon, 63-164; Langhammer v. City of Manches- ter, 68 N. W., 688. 3 Curry v. Allen, 60-387. 9*McCrary v. Deming, 38-527; Le Grand Q. Co. v. Reichard, 40- 161; Wallace v. Wallace, 62-651; Jackson v. Boyles, 64-428; Stone v. Ballingall, 41-291; Des Moines v. Cassady, 21-570; Key v. Des Moines Ins. Co., 77-174; Seltz v. Hawkeye Ins. Co., 71-710; Morgan v. Wifley, 71-212; but see Oppen- heimer v. Barr, 71-525; Muir v. Miller, 82-700; Bartlett v. Fore- mans Fund Ins. Co., 77-155; State v. Black, 59-390; Darnell v. Ben- nett, 67 N. W., 273; Ward v. Rail- road, 65 N. W., 999. as State v. Woodson, 41-425; Hoadley v. Hammond, 63-599; State v. Pratt, 40-631; Bartlett v. Foremans Fund Ins. Co., 77-155; Parcell v. Reynolds, 71-623; Blot- cky v. Caplan, 91-352. 96 Hubbard v. Mason City, 60- 400; see Brown v. Hendrickson, 69- 749; State v. Middleham, 62-150; State v. Graham, 51-72; Cook Mfg. Co. v. Randall, 62-244. 137-1, 1375.] APPELLATE PROCEEDINGS. 619 error in the admission of evidence may be cured by the court instructing the jury plainly to disregard it. 97 The admission of incompetent evidence as to speculative damages is without prejudice where the verdict is for nominal damages only. 98 The admission of incompetent testimony is not prejudicial where it is subsequently stricken out on motion. 99 Where on a trial by the court incompetent evidence is admitted, subject to plaintiff's .objection, and judgment is rendered for plaintiff, it will be presumed on appeal that the trial court gave the evi- dence no consideration. 1 A party can not complain of evidence elicited by himself. 2 1374. Of error without prejudice in the giving of instructions. Causes will not be reversed for the giving of erroneous instructions which could have worked no prejudice to the one complaining. 3 And such erroneous instructions will be without prejudice when the verdict is in favor of the party complaining, or it is apparent that the jury were not influenced by them. 4 Error in general instructions to the jury as to matters of law will be deemed without prejudice where the ver- dict of the jury is special. 5 The error complained of, to justify a reversal, must be shown to have resulted in prejudice. 6 1375. Of the discretion of the court below, etc. This subject has been treated of to a considerable ex- 9T Cook v. Robinson, 42-474. McGregor v. Armill, 2-30; First - 93 De Goey v. Van Wyk, 66 N. Nat. Bk. v. Breese, 39-640; Gwinn W., 787. v. Crawford, 42-63; Peake v. Con- es State v. Oden, 69 N. W., 270. Ian, 43-297; Parkhurst v. Mastel- 1 Wright v. Farmers, etc., 65 N. ler, 57-474; Chlein v. Kabat, 72- W., 308. 291. 2 Nagle v. Fulher, 67 N. W., 369. * Dunham v. Dennis, 9-543; Hall s McKay v. Leonard, 17-569; Cla- v. Stewart, 58-681; Hall v. Ballou, gett v. Conlee, 16-487; Ocheltree v. 58-585; Lathrop v. C. I. R. Co., 69- Carl, 23-394; Hunt v. C. & N. W. 105; Brentner v. C., M. & St. P. R. Co., 26-363; Horr v. Reed, 20- R. Co., 68-530; Myers v. Wright, 591; Thompson v. Blanchard, 2-44; 44-38; see Tuck v. Singer Mfg. Co., Blackburn v. Powers, 40-681; State 67-576. v. Hart, 67-142; Sullivan v. Finn, s Wilkinson v. Conn. M. L. Ins. 4 G. Gr., 544; Farwell v. Salpaugh, Co., 1 30-119; Boals v. George, 30- 32-582; Cedar F. & M. R. Co. v. 601. Rich, 33-113; Olson v. Neal, 63- Shannon v. Scott, 40-629; Eyser 214; Martin v. Algona, 40-390; v. Weissgerber, 2-463; cases here- Clinton Nat. Bk. v. Graves, 48-228; tofore cited. APPELLATE PROCEEDINGS. [ 1376. tent in several chapters, and we shall now refer to a few of the cases only. Generally it may be said that motions for new trials are addressed to the sound discretion of the court, and its action will not be interfered with un- less it is manifest that it has abused such discretion. 7 The supreme court will not, on appeal, disturb the ver- dict of a jury when the evidence is conflicting, unless it appears to be the result of passion or prejudice. 8 And a finding which has support in the evidence and where the evidence is conflicting will not be disturbed on appeal. 9 A verdict will be set aside on appeal when a manifest injustice would be done by permitting it to stand. 10 1376. Of the petition for rehearing When filed What confined to. Xo petition for rehearing can be filed after sixty days from the filing of the opinion or decision of the supreme court. 11 Written notice of the intention to petition for a rehearing must be served on the opposite party, or his attorney, and the clerk of the supreme court within thirty days' after the filing of the opinion or decision, and if no such notice is served the petition for rehearing can not be filed after the expira- tion of thirty days from the time the opinion is filed. 12 If a petition for a rehearing is filed it will suspend the decision or procedendo, if the court on its presentation, 7 Pickering v. Kirkpatrick, 32- 70-122; State v. Lauderbeck, 65 N. 163; N. Y. P. Co. v. Muller, 38- W., 158; Farmers Co-Operative 552; Donahue v. Lannan, 70-73; Soc., etc., v. German Ins. Co., 66 Chambers v. Brown, 69-213; Sher- N. W., 878; Leek v. Chesley, 67 N. mer v. Gendt, 52-742; Hill v. Dens- W., 580; Duer v. Allen, 64 N. W., linger, 61-640; Latton v. C., R. I. 682; Taylor v. Western Union Tel. & P. R. Co., 69-338; Moran v. Har- Co., 64 N. W., 660; Schultz v. ris, 63-390; Rogers v. Winch, 65- Klatt, 62 N. W., 784; Bever v. 168; Primmer v. Primmer, 75-415; Spangler, 61 N. W., 1072. Saar v. Finken, 79-61; Bever v. McConkie v. Babcock, 70 N. W., Spangler, 93-576; Rogers v. Winch, 103; Creamery Pkg. Co. v. Union 76-546; Dalhofl v. Bennett, 77-140; Bk. of Wilton, 69 N. W., 676; Phil- Taylor v. C., M. & St. P. R. Co., lips v. Lund, 70 N. W., 1130; Bus- 80-431; Fulliam v. Hagens, 83-763; sard v. Bullit, 64 N. W., 658; Mis- Arctic King Ref. Co. v. Kelley, 63 souri K. & T. Trust Co. v. Gantt, N. W., 676; Murray v. Weber, 92- 62 N. W., 794. 757; Lyons v. Harris, 73-292. 10 Chicago Cottage Organ Co. v. a Harger v. Spofford, 46-11; Wit- Caldwell, 63 N. W., 336. ter v. Little, 66-43X; Maxon v. C., n Rules, Sec. 60; Code, Sec. 4149. M. & St. P. R. Co., 67-226; Melhop 12 Code, Sec. 4149; Rules, Sec. 61. v. Doan, 36-630; French v. Real, 1377.] APPELLATE PROCEEDINGS. 621 or one of the judges shall so order, in either of which cases such decision and procedendo will be suspended until the final determination of the petition. 13 Matters which were not in the original case can not be insisted upon in the petition for a rehearing, nor can the peti- tioner make a new case. 14 Nor can the court consider an additional abstract or amended record not before the court on the first hearing. 15 The discovery of additional evidence since the trial in the court Jbelow is no ground for a rehearing. 16 The case must be heard on the peti- tion on the same record as on the former trial. 17 A fail- ure of the abstract to show service of notice of appeal cannot be cured on rehearing. 18 No particular form is necessary for a petition for a rehearing. The petition for rehearing must be printed and, with proof of service thereof on the opposite party, or his attorney, be filed with the clerk of the court within sixty days after the opinion is filed, and may be made the argument or brief of authorities relied upon for a rehearing. It must in- clude a copy of the opinion or decision of the court to which objection is made, or a reference to the volume and page of the Northwestern Reporter in which it has been printed. The adverse party may file an argument in response. 19 If this is not done the petition for rehear- ing will be stricken from the files. 20 1377. Of the argument. A copy of the petition must be served upon the attorney of the adverse party, and if there be more than one, upon the attorney of each of them, within sixty days after the opinion or decision is filed; and twelve copies must be delivered to the clerk of the court. If there be a printed argument in resist- ance of the petition, a copy thereof nyust be served upon the attorney for the petitioner ten days before the day is Code, Sec. 4148; Rules, Sec. 65. Falls & S. C. R. Co., 85-180; Bar- ! Hintrager v. Hennessy, 46-600; ber v. Scott, 92-52. Mann v. S. C. & P. R. Co., 46-637. i^Zuver v. Lyons, 40-510. is Cramer v. Burlington, 45-627; i" Martin v. Cole, 38-141. Nixon v. Downey, 49-166; Parsons 18 Iowa City v. Johnson County, v. Parsons, 66-754; Simplot v. Du- 68 N. W., 815. tuque, 49-630; McDermott v. Iowa i Code, Sec. 4149; Rules, Sec. 62. 20 Kervick v. Mitchell, 68-273. G22 APPELLATE PROCEEDINGS. fixed for the hearing of the cause, and twelve copies must be delivered to the clerk of the court. The cause will be placed on the docket and assigned for hearing at the next term, the first day of which must not be less than twenty days after the filing of the petition. If the party applying for a rehearing gives notice of oral, argument in his petition, both parties will be entitled to be heard orally, unless the party giving notice waive oral argument. 21 The court will not grant a rehearing at the instance of a party who failed to file or make an argument when the cause was submitted, but may, on its own motion, order a rehearing to correct an error. 22 After the opposite party has filed a reply to a petition for rehearing, no further argument can be filed. 23 The stat- ute does not authorize the filing of a bill of review. 24 1378. Of the action of the court. If a curative act is passed while a case in which the defect sought to be cured is raised is pending in the supreme court on re- hearing, the case will be treated as if no opinion had been previously filed, and the defect will be deemed cured. 25 Where the judgment on appeal stands affirmed by rea- son of a divided court, such affirmance is subject to re- consideration on rehearing. If, on rehearing of a cause, the court is equally divided as to whether the former opinion should be adhered to, the cause will stand as if the court had been equally divided on the first hearing, and the judgment will be affirmed. 26 When, after the decision of a cause by the supreme court, a procedendo was filed in the court below, and the proper steps taken to remove the cause to the federal court, after which, and within the proper time, a petition for rehearing was filed in the supreme court and allowed, it was held on a mo- tion to dismiss in tbe supreme court that the cause was pending there and had not been removed. 27 When a re- 21 Code, Sec. 4149; Rules, Sees. 24 McGregor v. Gardner, 16-538. 63, 64. 25 Iowa R. L. Co. v. Sac County, 22 Wachendorf v. Lancaster, 61- 39-124. 509. 20 Zeigler v. Vance, 3-528; Rich- 23 Webster County v. Hutchin- ards v. Burden, 59-723. son, 60-721. 2- McKinley v. C. & N. W. R. 1383.] APPELLATE PROCEEDINGS. 623 hearing is ordered the first opinion is suspended and has no further effect except as it may be incorporated in or approved by the opinion finally filed after the rehear- ing. 28 Where error for which judgment is reversed in- volves a possible excess of two hundred dollars in the amount of plaintiff's recovery, his offer in the petition for rehearing to remit that amount, if former opinion is adhered to, will be acted on and the judgment so modi- fied will be affirmed. 29 Co., 44-314; Railroad Co. v. McKin- Stewart v. Stewart, 65 N. W., 976; ley, 99 U. S. S. Ct. Rep., 147. In re Peets Estate, 68 N. W., 705. as Pitkin v. Peet, 64 N. W., 793; 29 Irlbeck v. Bierl, 70 N. W., 206. CHAPTER LXXXV. STATUTES AND RULES REGULATING THE PRACTICE IN THE SUPREME COURT. Sec. 1379. Of the adoption of the rules. 1380. Of the organization. 1381. Of the jurisdiction. 1382. Of the terms. 1383. Of appeals. 1384. Of docketing causes. 1385. Of advancing causes. ' 1386. Of abstracts, transcripts and records. 1387. Of supersedeas bonds. 1388. Of the trial, decision and execution. 1389. Of motions. 1390. Of briefs and arguments. 1391. Of decisions and opinions. 1392. Of records and reports. 1393. Of judgments and decrees. 1394. Of executions. 1395. Of rehearings. 1396. Of preparing and printing abstracts, transcripts, briefs, ar- guments and petitions for rehearing. 1397. Of appeals in criminal actions. 1398. Of the construction and modification of the rules. 1399. Of the distribution of printed matter. 1400. Of the return of papers and exhibits. 1401. Of costs. 1402. Of the admission of attorneys. Section 1379. Of the adoption of the rules. The last legislature passed a joint resolution requesting the judges of the supreme court to revise the rules of the court. In view of the adoption of a new code, wherein some material changes are made in the practice, the re- quest was timely. A committee consisting of three mem- bers of the court was appointed to make the revision and report to the full court. The}' completed their work and reported at the May term, 1897, rules which, after 624 1380, 1381.] PKACTICE IX SUPBEME COURT. 625 . some slight modifications, were adopted by the court. It seems quite proper in a work like this to set out in full the rules. It was the author's intention to annotate these rules, as, however, many of them have already been referred to and annotated in prior chapters, it is deemed best to refer to such prior annotations without repeating them. Where it appears necessary, comments are made in addition to what has been heretofore said. These rules took effect on the first day of October, 1897, and are printed below exactly as they appear in the official edition. 1380. Of the organization. "Section 1. The supreme court shall consist of six judges, four of whom constitute a quorum for the transaction of business, but one alone may adjourn from day to day, or to a particular day, or until the next term. [Code, 193.] Sec. 2. The judge whose term first expires shall be the chief justice, and so on in rotation. [Const., art. V, 3.]" 1 1381. Of the jurisdiction. "Sec. 3. The su- preme court has appellate jurisdiction over all judg- ments and decisions of all courts of record, except as otherwise provided by law. [Code, 4100.] 2 Sec. 4. An appeal may also be taken to the supreme court from: 1. An order made affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment from which an appeal might be taken; 2. A final order made in special actions affecting a substantial right therein, or made on a summary appli- cation in an action after judgment; 3. An order which grants or refuses, continues or modifies a provisional remedy; grants or refuses, dis- solves, or refuses to dissolve an injunction or attach- ment; or grants or refuses a new trial; or sustains or overrules a demurrer; i Sec. 17. 2 Sees. 1314, 1315, 1353. Vol. 11-40 PRACTICE IN SUPREME COURT. [ 1382, 1383. 4. An intermediate order involving the merits or materially affecting the final decision; 5. An order or judgment on habeas corpus. [Code, 4101.] 3 Sec. 5. If any of the above orders or judgments are made or rendered by a judge, the same are reviewable, the same as if made by a court. [Code, 4102.] 4 Sec. 6. The supreme court has power to issue all writs ajid processes necessan- to secure justice to par- ties, and to enforce its appellate jurisdiction; and it may exercise supervisory control over all inferior judicial tribunals. [Const., art. V., 4; Code, 4109.] Sec. 7. It may enforce its mandates upon inferior courts and officers by fine and imprisonment, which im- prisonment may continue until its mandates are obeyed. [Code, 4147.]" 1382. Of the terms. "Sec. 8. The supreme court shall be held at the seat of government, and shall con- vene and hold three terms each year, one of which shall commence on the third Tuesday in January, one on the second Tuesday in May, and one on the first Tuesday in October. Each of said terms of court shall be for the submission and determination of causes and for the transaction of such other business as shall properly come before the court. All causes on the docket shall be heard at each term unless continued or othewise dis- posed of by order of the court. The court shall remain in session so far as practicable until it is determined what the opinion of the court shall be in all causes sub- mitted to it, except in causes where a re-arguinent is ordered. Judgments of affirmance, rulings and orders in causes submitted, and orders authorized by law may be made and entered by the court at any time regardless of the terms of court. [Code, 192.]" 5 1383. Of appeals. "Sec. 9. Appeals from the superior and district courts may be taken to the su- Sec. 1314. B Sec. 18. * Sees. 22, 1314. 1383.] PRACTICE IX SUPREME COUET. 627 preme court at any time within six months from the rendition of the judgment or order appealed from, and not afterward. No appeal shall be taken in any cause in which the amount in controversy between the parties, as shown by the pleadings, does not exceed one hundred dollars, unless the trial judge shall, during the term in which judgment is entered, certify that the cause is one in which the appeal should be allowed, and upon such certificate being filed the same shall be appealable re- gardless of the amount in controversy, but this limita- tion shall not affect the right of appeal in any action in which an interest in real estate is involved, nor shall the right of appeal be affected by the remission of any part of the verdict or judgment returned or rendered. [Code, 4110.] 6 Sec. 10. A part of several co-parties may appeal; but in such case they must serve notice of the appeal upon those not joining therein and file proof thereof with the clerk of the supreme court. [Code, 4111.] 7 Sec. 11. Co-parties refusing to join in an appeal can- not afterwards appeal or derive any benefit therefrom, unless from the necessity of the case, but they shall be held to have joined, and be liable for their proportion of the costs unless they appear and object thereto. [Code, 4112.] 8 Sec. 12. The death of one or all of the parties shall not cause the proceedings to abate, but the names of the proper persons shall be substituted, as is provided in such cases in the district court, and the case may pro- ceed. The court may also, in such case, grant a contin- uance when such a course will be calculated to promote the ends of justice. [Code, 4150.] 9 Sec. 13. An appeal is taken and perfected by the service of a notice in writing on the adverse party, his agent, or any attorney who appeared for him in the case in the court below, and also upon the clerk of the court e Sees. 22, 1313, 1316, 1319. s Sec. 1326. 7 Sec. 1326. 9 Sec. 1347. 628 PRACTICE IX SUPREME COURT. [ 1384. wherein the proceedings were had, stating the appeal from the same, or from some specific part thereof, defin- ing such part. [Code, 4114.] 10 Sec. 14. A notice of appeal shall be served and re- turn made thereon in the same manner as an original notice in a civil action and filed in the office of the clerk in which the judgment or order appealed from w r as ren- dered or made. All other notices connected with or growing out of the appeal shall be served and the return made in like manner and filed in the office of the clerk of the supreme court and all notices provided for in this section become a part of the record in the case on being filed. [Code, 4115.]" 11 1384. Of docketing causes. "Sec. 15. A notice of appeal must be served thirty, and the cause filed and docketed fifteen, days before the first day of the next term of the supreme court, or the same shall not be sub- mitted at that term, unless the parties consent thereto. If the appeal is taken less than thirty days before the term, it must be so filed and docketed for the next suc- ceeding term. [Code, 4116.] 12 Sec. 16. The cause on appeal shall be docketed as it was in the court below, and the party taking the ap- peal shall be called the appellant, and the other party the appellee. No case shall be docketed until the fees provided by law therefor have been paid. [Code, 4108, 4121.] 13 Sec. 17. The clerk shall docket the causes as they are filed in his office, and shall arrange and set a proper number for trial for each day of the term, placing to- gether those from the same judicial district. No cause shall be docketed unless the abstract is filed fifteen days before the first day of the term at which the cause is set down for trial unless otherwise ordered by the court. If the abstract is not so filed, the case shall be docketed 10 Sec. 1321. 12 Sees. 1321, 1322. 11 Sec. 1322. is Sec. 1346. 1385, 1386.] PEACTICE IN SUPREME COURT. C29 for the next succeeding term. [Code, 4117, 4119; Old Rules, 114.] 14 Sec. 18. Immediately after the time expires during which causes may be docketed for trial at a term of court, the clerk shall make and cause to be printed, with- out delay, the docket for the term, which shall give all causes, whether continuances or appearances, for trial at such term, which shall designate the number, the party appealing, the court and county from which the appeal is brought, the counsel of the parties, the day each cause is assigned for trial, and such other matter for information of the court and attorneys as may be conveniently given. He shall forward to each judge of the court, to each attorney having causes at the term, and to the clerk of the district and superior courts of each county, a copy of said docket. [Old Rules, Ho.]" 15 1385. Of advancing causes. "Sec. 19. If a cause involves the decision of a question of public importance, or rights which are likely to be lost or greatly impaired by delay, the court will, in its discretion, upon motion supported by affidavit, order the submission of the cause at a term in advance of that at which it would other- wise be submitted." Prior to the adoption of the above rule causes had been advanced when such action seemed necessary. It is not possible to frame a rule upon this subject which will be explicit and state just what causes may be advanced. Heretofore causes have been advanced which involved a contest over a public office; or of the collection of public taxes where many persons were in- terested; or where the constitutionality or legality of a public statute was involved ; or where a right of redemp- tion would expire before a cause could be heard and de- cided. 1386. Of abstracts, transcripts and records. "Sec. 20. At least thirty days before the day assigned i* Sec. 1346. 15 Sec. 1346. 630 PEACTICE IX SUPREME COURT. [ 138G. for the hearing of a cause, the appellant shall serve upon each appellee, or his attorney, a printed copy of so much of the abstract of record as may be necessary to a fall un- derstanding of the questions presented for decision, which abstract shall be prepared as required by 67, 68 and 69 of these rules. The appellant shall also, fifteen days before the first day of the term for which the cause is to be docketed for trial, file with the clerk twelve copies of said abstract. No cause shall be heard until thirty days after such service and fifteen days after such filing with the clerk, unless advanced by order of the court. In case of cross-appeals, the party first giving notice of appeal shall, under this rule, be considered the appellant. [Old Rules, 18.] 16 Sec. 21. If it appear from an inspection of the ab- stract that the appellant has negligently or intentionally failed to comply with the rule requiring only so much of the record as may be necessary to a full understanding of the question presented for decision to be included therein, the court may, in its discretion, order a new ab- stract prepared in conformity with such rule or affirm the judgment of the lower court without considering the appeal. 17 Sec. 22. The abstract so filed will be presumed to contain the record unless denied or corrected by a sub- sequent abstract. Every denial shall point out as spe- cifically as the case will permit the defects alleged to exist in the abstract. A denial by the appellee shall be taken as true unless the appellant sustains his ab- stract by a certification of the record. Should the ap- pellee deem the appellant's abstract incorrect or unfair he may prepare such additional abstract as he shall deem necessary to a full understanding of the questions presented to the court for decision. A denial by the ap- pellant of such additional abstract, if not confessed, will be disregarded unless sustained by a certification of the record. The appellee shall serve one printed copy of his i Sec. 1333. 17 Sec. 1333. PKACTICE IN SUPREME COURT. 631 additional abstract or denial on each appellant or his attorney and deliver twelve printed copies thereof to the clerk within ten days after receiving the appellant's ab- stract, and a denial by the appellant shall be served on the appellee and twelve printed copies thereof delivered to the clerk within five days after service of the addi- tional abstract. [Code, 4118, 4120.] 18 Sec. 23. No certification of the record shall be re- quired unless ordered by the supreme court, or a judge thereof, which order must be made upon an application in waiting or by motion, designating the matters and things of record desired to be included therein, and show- ing the necessity therefor. The order, if granted, shall contain similar designations and show the parts to be given by an abstract of the original record and the por- tions to be by transcript, and may require any or all the matters to be presented by an amended abstract. The application and the order made shall be filed in the office of the clerk of the supreme court, who shall trans- mit the order to the clerk of the lower court, and send a notice or copy thereof to the appellant or his attorney. The order shall be attached to and returned with the record certified, and be submitted with the papers in the case. The appellant, upon notice or copy of the order being received by him or his attorney, shall, within five days, unless otherwise ordered, pay or secure to the satisfaction of the clerk of the lower court his fees and expenses for preparing and forwarding the record or- dered. [Code, 4122; Old Kules, 12.] 19 Sec. 24. When certification of the record is required the designated papers, notices, depositions, exhibits iden- tified as evidence, notice of appeal with return or ac- ceptance of service thereon, and any other papers filed in the case, or any part thereof, may be transmitted to the supreme court in the original form or by a transcript of the same, excepting that the shorthand reporter's translation of his report shall be transmitted in its or- Sees. 1333, 1336. i Sees. 1327, 1333. 632 PEACTICE IN SUPREME COURT. [ 1386. iginal form, but all entries of record must be certified by transcript. The clerk of the trial court shall verify his return, whether it be of the record or transcription there- of, by his certificate, under seal, distinguishing between originals and transcripts, and such certification so made shall constitute a part of the record in the supreme court. [Code, 4123; Old Rules, 20.] 20 Sec. 25. Where a view of an original paper or ex- hibit in the action may be important to a correct de- cision of the appeal, the court may order the clerk of the court below to transmit the same, which he shall do in the manner provided for the transmission of certificates of the record. [Code, 4124.] 21 Sec. 26. A transcript may be denied; and when such denial is made it shall be as specific as the case will permit The trial court, the supreme court, or a judge of either court may make any orders necessary to secure a perfect record or transcript thereof, upon a showing by affidavit or otherwise, and upon such notice as the court or judge may prescribe. [Code, 4120.] 22 Sec. 27. The transcript of any paper or exhibit re- quired for use in the supreme court may be transmitted thereto by the clerk of the trial court, by express or other safe and speedy method, but not by a party or any attor- ney of a party. [Code, 4125.] 23 Sec. 28. If an abstract of the record is not filed by appellant thirty days before the second term after the appeal was taken, unless further time is given by the court, or a judge thereof, for cause shown, the appellee may file an abstract of such matters of record as are necessary, or may file a copy of the final judgment or order appealed from, notice of appeal and return of ser- vice thereof, certified by the clerk of the trial court, and cause the case to be docketed, and the appeal upon mo- tion shall be dismissed, or the judgment or order af- firmed. [Code, 4120; Old Rules, 21.] 24 20 Sees. 1327, 1333. 23 Sec. 1332. 21 Sec. 1332. 24 sees. 1333, 1335. 22 Sees. 1328, 1331, 1333. 9 1386.] PKACTICE IN SUPREME COUET. 633 Sec. 29. If the appellant fail to promptly pay or se- cure to the satisfaction of the clerk of the trial court, his fees and expenses for preparing and forwarding to the clerk of the supreme court any record ordered to be certified by the supreme court, or a judge thereof, upon receiving notice thereof or copy of the order therefor, the appeal, upon motion supported by proof of the facts, may be dismissed or the judgment affirmed as the appel- lee "may elect. [Code, 4122.] 25 Sec. 30. Where appellant has no right, or no further right to prosecute the appeal, the appellee may move to dismiss it, and if the grounds of the motion do not appear in the record, or by a writing purporting to have been signed by the appellant and filed, they must be veri- fied by affidavit. [Code, 4151.] 26 Sec. 31. The appellee may, by answer or abstract filed and verified by himself, agent or attorney, plead any facts which render the taking of the appeal im- proper or destroy the appellant's right of further prose- cuting the same, to which the appellant may file a reply or abstract likewise verified by himself, his agent or at- torney, and the question of law or fact therein shall be determined by the court, upon evidence in the form of affidavits unless otherwise ordered. [Code, 4152; Old Rules, 27.]" 27 It will be observed that the above rules make new pro- visions with reference to obtaining a transcript of the record. Under prior rules parties were free to procure a tran- script wherever they saw fit. Now the transcript can only be had upon the order of the court or of one of the judges thereof after the full showing required by the rules. This is quite a radical change in the practice which imposes much additional labor upon counsel and the court and its judges. The object no doubt was to Sec. 1335. 27 Sec. 1347. 26 Sec. 1347. PRACTICE IN SUPKEHE COURT. [ 1387. prevent sending up transcripts in cases where they were not necessary. 1387. Of supersedeas bonds. "Sec. 32. No pro- ceedings under a judgment or order, nor any part thereof, shall be stayed by an appeal unless the appel- lant executes a bond with one or more sureties to be filed with and approved by the clerk of the court in which the judgment or order was rendered or made, to the effect that he will pay to the appellee all costs and damages that shall be adjudged against him on the appeal, and will satisfy and perform the judgment or order appealed from, in case it shall be affirmed, and any judgment or order which the supreme court may render or order to be rendered by the inferior court, not exceeding in amount or value the original judgment or order, and all rents of or damages to property during the pendency of the ap- peal out of the possession of which the appellee is kept by reason of the appeal. If the bond is intended to stay proceedings on only a part of the judgment or order, it shall be varied, so as to secure the part stayed alone. When thus filed and approved, the clerk shall issue a written order renuiring the appellee and all others to stay all proceedings under such judgment or order, or so much thereof as is superseded thereby, but no appeal or stay shall vacate or affect such judgment or order. [Code, 4128.] 28 Sec. 33. If a party has perfected his appeal and the clerk of the lower court refuses for any reason to ap- prove the bond or requires an excessive penalty or un- just or improper conditions, he may apply to the dis- trict court or judge thereof, who shall fix the amount and conditions of the bond and approve the same. Pend- ing the application, the judge may, by a written order, recall and stay all proceedings under the order or judg- ment appealed from, until the decision of the applica- tion. The bond thus approved 'shall be filed with the zs Sees. 1324, 1325. 1388.} PRACTICE IN SUPREME COURT. 635 clerk, who shall issue a written order to stay proceed- ings. [Code, 4132.] 29 Sec. 34. The appellee may move the court rendering the judgment or making the order appealed from, or the supreme court, or a judge of either court, if in vacation, upon ten days' notice in writing to appellant, to dis- charge the bond on account of defect in substance or in- sufficiency in security, which motion, if well taken, shall be sustained, unless appellant shall, within a day to be fixed in the order made and filed therein, give a new and sufficient bond as required by said order. If the new bond is not given, proceedings shall be had in the lower court as though no bond had been given, but a new and sufficient bond may be given at any time with like effect and results as though given in the first instance. [Code, 4133.] 30 Sec. 35. If the judgment or order is for the payment of money, the penalty shall be in at least twice the amount of the- judgment and costs. If not for the pay- ment of money, the condition shall be to save the appel- lee harmless from the consequences of taking the appeal, but in no case shall the penalty be less than one hundred dollars. [Code, 4134.]" 31 1388. Of the trial, decision and execution. "Sec. 36. Except in actions triable de novo no question shall be considered by the supreme court unless pointed out by an assignment of error, which need follow no stated form, but must clearly and specifically indicate the very error complained of, and among several points made in demurrer, motion, instructions or rulings, the one, or those relied upon, must be separately stated. The court need consider only such errors as are thus assigned but must decide upon each one that is. [Code, 4136.] 32 Sec. 37. If errors are not assigned and filed, and a copy thereof served on the appellee or his attorney ten days before the first day of the trial term, unless good 29 Sec. 1324. 81 Sec. 1324. so Sec. 1325. 82 Sec. 1341. 636 PRACTICE IN SUPREME COURT. [ 1389. cause for the failure be shown, the appellee may have the appeal dismissed or the judgment or order affirmed. [Code, 4137.]" 33 1389. Of motions. "Sec. 38. (1.) All motions must be in writing, filed with the clerk and entered upon the motion book. No motion shall be submitted with- out being publicly called by the court, unless the parties otherwise agree. (2.) All motions must be served by copy of the same and of all affidavits or documents upon which they are based, upon the opposite party or attorney, ten days be- fore the morning on which the causes for the district are set for hearing. Such opposite party shall then have five days to file papers in resistance to the same, copies of which must be served upon the other party or attorney, and no papers will be regarded which do not appear to have been so served. This rule shall not apply to mo- tions the causes whereof arise after the filing of the ab- stract, but in such cases timely notice of such motions shall be given to the opposite attorneys. Nor shall this rule apply, as to time of service, to motions for continu- ance. (3.) Motions made in a cause after judgment rendered by the supreme court, or after the time assigned for the hearing of causes from the district from which it was ap- pealed, will be heard only upon proof of service of rea- sonable notice of such motion upon the adverse party or attorney. (4.) Arguments in support of motions, if any, must be in writing or print, and shall be filed before the morning of the day set for the hearing of the cause, and served by copy upon the opposite party or attorney when the mo- tion is served; and arguments in resistance, if any, must be in writing or print and filed before the morning of the day set for the hearing of the cause, and served by copy on the opposite party or attorney when the papers in resistance are served. [Code, 4138; Old Kules, 52.]" 3 * ss Sees. 1335, 1341. 34 Sec. 1347. 1390.] PRACTICE IX SUPREME COURT. G37 Counsel are not always careful to see that notice of mo- tions are served, or if served it is often the case that no return of service has been made when the time arrives for deciding upon the motion. Cases are often continued for service of the notice, or of the showing in support of the motion, or of the resistance. 1390, Of briefs and arguments. "Sec. 39. When the appeal presents to the court only questions of law upon rulings of the court below, the appellant shall open and close the argument, and must, at least thirty days before the day assigned for the hearing of the case, serve upon an attorney for each appellee copies of his brief of points and authorities or argument. If appellee desires to be heard, he shall, at least ten days prior to the hear- ing, serve upon an attorney for each appellant copies of his brief or argument; and the reply, if in print, shall be served at least three days before the case is to be final- ly submitted. If the trial in the supreme court is de novo, and the appellant has the burden, he shall observe the foregoing rules. But if appellee has the burden, lie may waive his right to open the argument by serving notice in writing of his intention to do so upon appellant or his attorney at least thirty days before the day as- signed for the hearing of the cause. Appellant will then be entitled to open the argument, and must serve copies of his argument upon an attorney for each appellee ten days before the hearing. Appellee may then, and at least three days before the submission, serve upon an attorney for each appellant copies of his argument, which must be strictly confined to matters in reply to appellant's argument. A failure to comply with the above require- ments will entitle the party not in default, unless the court shall, for sufficient cause, otherwise order, to a con- tinuance or to have the case submitted at his option upon the brief and arguments on file when the default oc- curred. [Code, 4139; Old Kules, 53, 57.] 33 Sec. 40. All printed briefs and arguments shall be 35 Sec. 1345. 638 PRACTICE IX SUPREME COURT. [ 1390. prepared as required by 66 hereof, and each party shall file with the clerk twelve printed copies of each brief or argument, together with proper evidence of service of the same upon opposing attorneys. The clerk shall note upon his docket the date of the service and filing of all manuscripts and arguments, and no brief or argument not served or filed within the time prescribed by these rules will be transmitted to the judges or considered by them in disposing of the case. No cause will be entered as submitted until the arguments are finally and actually concluded. [Old Rules, 53, 54.] 36 Sec. 41. Notice in writing or in print of intention to argue a case orally, shall be served upoji an attorney for the adverse party and filed with the clerk fifteen days be- fore the first day of the term, and the party who fails to so serve and file such notice shall not be entitled to argue orally, except in reply to an oral argument for the adverse party. [Old Rules, 55.] 37 Sec. 42. If appellant has given the notice, he is en- titled to open and close the argument, unless the cause is triable de novo and the appellee has the burden. If the notice was given by appellee only, he is entitled to the opening, and the appellant must confine his remarks to a reply, unless the cause is triable de novo. If the cause is triable de novo and appellee has the burden, he may, if he has given the requisite notice, open and close the argument. [Old Rules, 5T.] 38 Sec. 43. No oral argument shall exceed one hour in length unless an extension of time be granted before the argument of "the case is commenced. Only two attor- neys will be heard on each side, but in case no oral argu- ment is made on one side, only one attorney shall be heard for the other. [Old Rules, 56.] 39 Sec. 44. At the commencement of each assignment for the term all causes included in the assignment will be called, but the submission of a cause will not be taken 8 Sec. 1345. ss Sec. 1345. 87 Sec. 1345. 39 Sec. 1345. 1391.] PRACTICE IN SUPREME COURT. 639 on the first call if any party thereto object. The court will hear all causes included in the assignment and take the submissions thereof in the order in which they are assigned, excepting those which have been continued or otherwise disposed of by direction of court. [Code, 4139; Old Rules, 58, 68.]" 40 A careful study of the above rules will avoid much trouble, which has heretofore arisen, as to when counsel were entitled to be heard orally, and who should open and close the argument. Counsel sometimes seem to forget that with the vast amount of business before the court it is impossible to frequently extend the time for oral argument. A good oral argument, that is one direct- ed to the real points of contention, upon the law of the case, is always appreciated by the judges, and is very helpful, but an oral argument on fact questions can not, as a rule, be regarded as aiding the court, as in any event resort must be had to the record to settle disputed ques- tions of fact. Taking the submission of over five hundred cases a year and deciding them, it will be seen that it w r ould be about impossible for the judges to retain the points of an argu- ment on the facts and have them in mind when the case is considered and decided. It is not often that the time allowed for oral argument is extended. In nearly all cases which are argued orally it is found that the time allowed by the rules insures a better presentation of the case than is usual when the time is extended. 1391. Of decisions and opinions. "Sec. 45. The court may reverse, modify or affirm the judgment, decree or order appealed from, or render such as the inferior court should have done. [Code, 4139.] Sec. 46. No cause will be considered as decided until a written decision is filed with the clerk. The decisions of the court on all questions passed upon by it, including motions and points of practice, shall be specifically 40 Sees. 1348, 1354. 640 PKACTICE IX SUPREME COURT. [ 1392. stated, and shall be accompanied by an opinion upon all such matters as are deemed of sufficient importance, to- gether with any dissent therefrom, which dissent may be stated with or without an opinion; and all decisions and opinions, including dissents, shall be in writing and be filed with the clerk except rulings on motions which may be entered upon the announcement book. If the de- cision is not accompanied with an opinion, it shall briefly state the title of the case, the county from which the case was appealed, the n#me of the presiding judge, the nature of the action, the names of counsel appearing on either side, and the conclusions reached. [Code, 198, 4139.] 41 Sec. 47. When the court is equalh 7 divided in opinion the judgment of the court below shall stand affirmed, but the decision is of no further force or authority. In case of such division, opinions may be filed at the option of the court. If no opinion is filed a written announce- ment shall be made of the division of the court upon the questions presented, and that the judgment is affirmed by operation of law. [Code, 195, 198.]" 42 The change in the statute and in the rules contem- plates that cases may be decided without writing out an opinion. Heretofore a written opinion had to be filed in every case. Under the above provisions it is likely that no opinion will be written in at least one-third of the cases submitted. In all cases of affirmance, which in- volve no new question, they can, and no doubt will be dis- posed of under the provisions of the last clause of rule 46 above. This will greatly facilitate the business of the court, while working no injustice to litigants or their counsel. 1392. Of records and reports. "Sec. 48. The records and reports must in all cases sho.w whether a de- cision was made by a full bench, and whether either, and if so, which of the judges dissented from the decision. [Code, 199.] 41 Sec. 1354. Sec. 1354. 1393.] PEACTICE IX SUPREME COURT. 641 Sec. 49. All decisions and opinions of the court shall be published in the official reports, except such as the court may think unimportant. Decisions and opinions which are not to be included will be marked, 'Not to be officially reported,' and when so marked they shall not be included in the reports. [Code, 200; Old Rules, 60.]" 1393. Of judgments and decrees. "Sec. 50. The supreme court, if it affirms the judgment, shall also, if the appellee asks or moves therefor, render judgment against the appellant and his sureties on the appeal bond for the amount of the judgment, damages and costs re- ferred to therein, in case such damages can be accurately known to the court without an issue and trial. [Code, 4140.] 43 Sec. 51. Upon the affirmance of any judgment or or- der for the payment of money, the collection of which in whole or part has been stayed by an appeal bond, the court may award to the appellee damages upon the amount so stayed; and, if satisfied by the record that the appeal was taken for delay only, may award as dam- ages a sum not exceeding fifteen per cent, thereon. [Code, 4141.] 14 Sec. 52. Decrees to be entered in this court shall be prepared by the attorney of the parties in whose favor they are rendered. Copies shall be served on the oppo- site attorney and filed in the court within twenty days after the attorney preparing them shall have received notice of the decision in the cause in which they are en- tered. [Old Eules, 71.] 45 Sec. 53. When, by the decision, a decree is to be en- tered in this court at the option of either party, such op- tion shall be declared and a decree furnished under the above rule within twenty days from the date at which the attorney required to prepare the decree received notice of the decision. [Old Eules, 72.] 46 43 Sec. 1348. 45 Sec. 1357. Sec. 1348. 46 Sec. 1357. Vol. 1111 642 PRACTICE IX SUPREME COURT. [ 1394 Sec. 54. No procedendo, except in criminal cases and in cases where petitions for rehearing have been over- ruled, shall issue in an}- case until the expiration of thirty days from the filing of the opinion in the case, except upon an order of one of the judges of the court, upon cause shown. [Old Kules, TO.]" 47 1394. Of executions. "Sec. 55. If the supreme court affirms the judgment or order it may send the cause to the court below to have the same carried into effect, or may issue the necessary process for this purpose, di- rected to the sheriff of the proper county, as the party may require. [Code, 4143.] 48 Sec. 56. If remanded to the inferior court to be car- ried into effect, such decision and the order of the court thereon, being certified thereto and entered on the rec- ords thereof, shall have the same force and effect as if made and entered during the session of that court. [Code, 4144.] 49 Sec. 57. If by the decision of the supreme court, the appellant becomes entitled to a restoration of any part of the money or property that was taken from him b}' means of such judgment or order, either the supreme court or the court below may direct execution or writ of restitution to issue for the purpose of restoring to him such property or its value. [Code, 4145.] 50 Sec. 58. Executions issued from the supreme court shall be like those from the district court, attended with the same consequences, and returnable in the same time. [Code, 4153.] 51 Sec. 59. In cases in which the judgment below is af- firmed in this court, the parties in whose favor the judg- ment is affirmed may have execution either from this court or the court below. In case of an execution from this court, if a process of garnishment is served upon the. execution defendant, either principal or surety, the sher- 47 Sec. 1357. so Sees. 1348, 1353. *8 Sec. 1348. 6i Sec. 1353. 49 Sec. 1352. 1395.] PRACTICE IN SUPREME COURT. 643 iff, in addition to his return, shall return a copy of the execution and his returns to the district or superior court from which the cause was appealed, and all issues of fact which may arise in said garnishment process shall be tried by that court. [Old Rules, 67.]" 52 1395. Of rehearings. "Sec. 60. No petition for rehearing shall be filed after sixty days from the filing of the opinion or decision of the supreme court. [Code, 4149; Old Rules, 88.] 53 Sec. 61. Written notice of intention to petition for a rehearing shall be served on the opposite party or his attorney, and the clerk of the court, within thirty days after the filing of the opinion or decision, and if no such notice is served, the petition for rehearing shall not be filed after the expiration of such thirty days. [Code, 4149; Old Rules, 89.] 54 Sec. 62. The petition for rehearing shall be printed and, with proof of service thereof on the opposite party, or his attorney, shall be filed with the clerk of the court within sixty days after the opinion is filed, and may be made the argument or brief of authorities relied upon for a rehearing. It shall include a copy of the opinion or decision of the court to which objection is made, or a ref- erence to the volume and page of the Northwestern Re- porter in which it has been printed. The adverse party may file an argument in response. [Code, 4149; Old Rules, 90, 92.] 55 Sec. 63. A copy of the petition shall be served upon the attorney of the adverse party, and if there be more than one, upon the attorney of each of them, within sixty days after the opinion or decision is filed; and twelve copies shall be delivered to the clerk of the court. If there be a printed argument in resistance of the petition, a copy thereof shall be served upon the attorney for the petitioner ten days before the day fixed for the hearing of 62 Sec. 1353. 54 Sec. 1376. es Sec. 1376. 5 Sec. 1376. 644 PRACTICE IX SUPEEME COURT. [ 1396. the cause, and twelve copies shall be delivered to the clerk of the court. [Code, 4149; Old Rules, 90, 91.] 56 Sec. 64. The cause shall be placed on the docket and assigned for hearing at the next term, the first day of which shall not be less than twenty days after the filing of the petition. If the party applying for a rehearing shall give notice of oral argument in his petition, both parties shall be entitled to be heard orally, unless the party giving notice waive oral argument. [Code, 4149 ; Old Rules, 90.] 57 Sec. 65. If a petition for rehearing is filed, it shall suspend the decision, if the court or one of the judges upon its presentation so order, until after the final de- cision on the rehearing. [Code, 4148.]" 5S 1396. Of preparing and printing abstracts, transcripts, briefs, arguments and petitions for re- hearing. "Sec. 66. All abstracts, denials of abstracts, briefs, arguments and petitions for rehearing shall be printed upon unruled writing paper, with type common- ly known as small pica, leaded lines, the printed page to be four inches wide by seven inches long, with a margin of two inches; but the type in which extracts are printed may be small pica solid, or brevier with leaded lines. The first page of the abstract, denial, brief or argument, shall show the title of the cause, designating the appel- lant and the appellee, the term of the supreme court to which the appeal is brought, the court from which the appeal is taken, the name of the judge who presided at the trial, and the names of the attorneys for both the appellant and appellee. [Old Rules, 96.] 59 Sec. 67. The abstract must be accompanied by a com- plete index of its contents. [Old Rules, 9T.] 60 Sec. 68. Abstracts of record shall be made substan- tially in the following form: 68 Sec. 1377. 69 Sec. 1333. BTSecs. 1333, 1377. eo Sec., 1333. cs Sees. 1333, 1376. 1396.] PEACTICE IN SUPEEME COUKT. 645 IN THE SUPREME COURT OP IOWA. January Term, 1 . JOHN DOE, Appellant, | Appellant > s Abstract of Record. RICHARD ROE, Appellee, f (" In E 1 uity " or " At ***"> Appeal from Van Buren District Court. JOHN SMITH, Judge. J. C. K., for the Appellant. H. H. S., for the Appellee. On the day of , 18, the plaintiff filed in the Van Buren district court a PETITION stating his cause of action as follows: [Set out all of petition necessary to an understanding of the ques- tions to be presented to this court, and no more. In setting out exhibits, omit all merely formal irrelevant parts, as, for example, if the exhibit be a deed or mortgage and no question is raised as to the acknowledg- ment, omit the acknowledgment. When the defendant has appeared it is useless to encumber the record with the original notice, or the return of the officer.] pn the day of , 18, the defendant filed a DEMURRER to said petition setting up the following grounds: [State only the grounds of demurrer, omitting the formal parts. If the pleading was a motion, and the ruling thereon is one of the ques- tions to be considered, set it out in the same way, and continue.] And on the day of , 18 , the same was submitted to the court, and the court made the following rulings thereon: [Here set out the ruling. In every instance let the abstract be made in the chronological order of the events in the case let each ruling appear in the proper connection. If the defendant pleaded over, and thereby waived his right to appeal from these rulings, no mention of them should be made in the abstract, but it should continue.] And on the day of , 18 , the defendant filed his ANSWER to the petition, setting up the following defenses: [Here set out the defenses, omitting all formal parts. If motions or demurrers were interposed to this pleading, proceed as directed with reference to the petition Frame the record so that it will properly present all questions to be reviewed and raised before issue is joined. When the abstract shows issue joined, proceed.] 646 PEACTICE IN SUPREME COURT. [ 1396. BILL OF EXCEPTIONS. On the day of , 18 , said cause was tried to a jury (or the court, as the case may be) and on the trial the following proceed- ings were had: [Here set out so much of the evidence and proceedings as is neces- sary to show the rulings of the court to which exceptions were taken during the progress of the trial.] INSTRUCTIONS. After the evidence and the arguments of counsel were concluded, the plaintiff (or defendant, as the case may be) asked the court to give each of the following instructions to the jury: [Set out the instructions referred to, and continue.] Which the court refused as to each instruction, to which several rulings the plaintiff (or defendant) excepted at the time, and thereupon the court gave the following instructions to the jury: [Set out the instructions.] To the giving of those numbered (give the number) and to the giving of each thereof the plaintiff (or defendant) at the time excepted. VERDICT. On the day of , 18 , the jury returned into court with the following verdict: [Set out the verdict.] MOTION FOR NEW TRIAL. On the day of , 18 , the plaintiff (or defendant) filed a motion praying the court to set aside the verdict and grant a new trial upon the following grounds: [Set out the grounds aforesaid for the new trial.] On the day of , 18 , the court made the following rul- ing upon said motion: [Set out the record of the ruling.] To which the plaintiff (or defendant) at the time excepted. JUDGMENT. On the day of , 18 , the following judgment was entered: [Set out the judgment entry appealed from.] On the day of , 18 , the plaintiff perfected an appeal to the supreme court of the State of Iowa, by serving upon the defend- ant and the clerk of the district court of Van Buren county a notice of appeal. [If supersedeas bond was filed, state the fact.] Iu96.] PEACTICE IN SUPEEME COURT. 617 ASSIGNMENT OF ERRORS. And the appellant herein says there is manifest error on the face of the record in this: [Set out the errors assigned.] This outline is presented for the purpose of indicating the character of the abstract contemplated by the rule, which, like all the rules, is to be substantially complied with. Of course, no formula can be laid down applicable to all cases. The rule to be observed in abstracting a case is: Preserve everything material to the questions to be decided, and omit everything else. [Code, 3675, 3749; Old Rules, 98.] 61 Sec. 69. The printed brief and argument shall state in divisions thereof, properly numbered, the several prop- ositions of law claimed by the party making such brief or argument to be involved in the case before the su- preme court, and authorities relied upon in support of the same. When an authority cited is an adjudicated case, the brief or argument must show the names of the parties, the volume in which it is reported, and the page or pages containing the matter to which the attorney de- sires to call the attention of the court. When the refer- ence is a text-book, the number or date of the edition must be stated, with the number of the volume and page. [Old Rules, 99.] 62 Sec. 70. Transcripts of the record, when required by the supreme court, or a judge thereof, may be made sub- stantially in the manner following, viz. : State of Iowa, [ County of In the district (or superior) court of Iowa, at a term begun and holden in the county of , on the - day of - , A. D. 18, before J. H. G., judge of the judicial district (or judge of the superior court) of the State of Iowa. N. P. v. C. D. Be it remembered that heretofore, to wit, on the day of ei Sec. 1333. 62 Sec. 1345. G48 PRACTICE IX SU1 ; REME COURT. [ 1396. , A. D. 18 , a petition was filed in the office of the clerk of the district (or superior) court, in and for the county of in words and figures following, to-wit: [Here insert the petition in full.] [Proceed in the same manner in relation to whatever paper is filed, such as the original notice, or a petition for attachment, etc. If the cause has come from another county by a change of venue, begin as above. "Be .it remembered," and state in like manner all that was done in the county from which the venue was changed.] And afterward there was filed in the office of the said clerk a notice, in the words and figures following, to-wit: [Here insert the notice in full.] [Copy all indorsements on the face of the transcripts, or copy of record, and not upon the back of the leaf.] Upon which (or attached to which) was a return as follows: (Copy the officer's return, with all indorsements in full; if the suit be by at- tachment, copy the petition or affidavit, writ or attachment, bond, no- tice, return, etc.] And afterward, to-wit: on the day of , A. D. 18 , there was filed in the office of the said clerk, an answer in words and figures following, to-wit: [Here insert answer in full.] [Should the clerk doubt what the paper is, let him call it a "paper in the words and figures following," etc.] Where a paper is filled in term time, add the day of the term to the day of the month, as in the next form. A. B. ^. v. , v - r :. D. c. And afterward, to-wit: on the day of , A. D. 18 , it being the day of the term of said court, the said A. B. (or plaintiff) filed the following demurrer to the answer of the said C. D. (or of the said defendant), to-wit: [Here insert demurrer in full.] [If a party files more than one pleading at the same time, they should be numbered in their legal order, as, for instance, a demurrer and answer, and the transcript may say (stating the date) - the said C. D. (or defendant) filed his demurrer and answer, which are filed subject to the rule.] A. B. . B. l v - f . D. | And now, on this day of , A. D. 18 , it being the day of the said term thereof, this cause coming on for hearing on the plaintiff's demurrer to the defendant's answer [copy the entry of the proceedings of the court, sustaining or overruling the demurrer.] 1396.] PEACTICE IN SUPREME COURT. 64:9 And afterward, on the - - day of the said , it being the day of the said term, the said plaintiff filed his reply in the words and figures following, to- wit: [Here set out reply in full.] And afterward, on the same day, the said defendant filed motion and affidavit for a continuance, as follows, to-wit: [Here set out copy of motion and affidavit.] And the same being now heard and considered by the court, the said motion is sustained, and it is ordered that this cause be continued until the next term of the court (at the cost of the defendant). In the district (or superior) court, county. A. B. ) v. I term, A. D. 18. C. D. ) And now, on this day of , it being the day of said term, this cause coming on for trial, came a jury, to-wit: twelve good and lawful men, who were sworn well and truly to try the issue between the said parties, and a true verdict render, according to the law and evidence given them in court. The jury retired to consider on their verdict, and afterward, on the same day, the jury returned into court and rendered its verdict, as follows: [Here insert in full the verdict as rendered.] [Or if the jury does not return until the next day.] A. B. v. C. D. And afterward, on the day of , A. D. 18, the jury in the foregoing cause returned into court and rendered its verdict as follows: [Here insert in full the verdict as rendered.] A. B. i. D. . V ' f 1 D. \ C. And afterward, on the day of , A. D. 18, being the day of said term, the shorthand reporter filed his report in writ- ing, or in shorthand (as the case may be) certified as required by law, the translation of which, duly certified, was filed on the - - day of , A. D. 18 , and is as follows: [Here attach the original transla- tion unless otherwise directed by order of the supreme court, or a judge thereof.] A. B. C Now, on this day of , A. D. 18 the plaintiff filed his motion for a new trial, to-wit: . B. , Y ' f !. D. \ 650 PRACTICE IX SUPREME COURT. [ 1397. [Here insert in full the motion for a new trial.] A. B. , v - h C. D. [ And now, on this day of , A. D. 18 , this cause coming up for a hearing on the motion of the plaintiff for a new trial, it is con- sidered by the court, that the same be overruled (or, as the case may be). [Then add the final entries of record, comprising final judgment, etc., and certificate of clerk.] The foregoing form is only an example, and is to be varied according to the circumstances. The actual facts of the case will dictate what is to be done, but in all cases it is to be done substantially in like manner with the above, giving the proper order and date of the tiling of papers and incorporating them at the proper date into the proceedings of the court. When the order made by this court, or a judge thereof, pursuant to rules 22, 23 and 24, requires but a part of the record to be transcribed, the foregoing form should be so modified as that it will include only those matters directed to be certified. All other, except the mere formal parts, must be omitted. [Code, 3675, 3749, 4122, 4123; Old Rules, 100.]" C3 1397. Of appeals in criminal actions. "Sec. 71. The mode of reviewing in the supreme court any judg- ment, action, or decision of the district court in a crim- inal case, is by appeal. An appeal can only be taken from the final judgment and within one year thereafter. Either the defendant or State may appeal. [Code, T.448.] Sec. 72. An appeal is taken and perfected by the party or his attorney serving on the adverse party or his attorney of record in the district court at the time of the rendition of the judgment, and on the clerk of such court, a notice in writing of the taking of the ap- peal, and filing the same with such clerk with evidence of service thereof indorsed thereon or annexed thereto. [Code, 5449.] Sec. 73. When several defendants are indicted and 63 Sees. 1327, 1328. 1397.] PEACTICE IN SUPREME COURT. 651 tried jointly, any one or more of them may join in taking the appeal, but those of their co-defendants who do not join shall take no benefit therefrom, yet they may appeal afterwards. [Code, 5451.] Sec. 74. When an appeal is taken, it is the duty of the clerk of the court in which the judgment was rendered to forthwith prepare and transmit to the attorney-gener- al a certified copy of the notice of appeal in the case, with the date of service thereof, and, without unnecessary de- lay, to make out a full and perfect transcript of all papers in the case on file in his office, except the papers returned by the examining magistrate on the preliminary exam- ination, where there has been one, and of all entries made in the record-book, certify the same under the seal of the court, and transmit the same to the clerk of the supreme court. [Code, 5450.] Sec. 75. An appeal taken by the State in no case stays the operation of a judgment in favor of the defendant. [Code, 5452.] Sec. 76. An appeal taken by the defendant does not stay the execution of the judgment, unless bail is put in; but where the judgment is imprisonment in the peni- tentiary, and an appeal is taken within ninety days after judgment is rendered, and the defendant is unable to give bail, and that fact is satisfactorily shown to the court, or judge thereof, it may, in its discretion, order the sheriff or officer having the defendant in custody to de- tain him in custody, without taking him to the peniten- tiary, to abide the judgment on the appeal, if the defend- ant desires it. [Code, 5453.] Sec. 77. When an appeal is taken by the defendant, and bail is given, the clerk must give to the defendant, or his attorney, a certificate under the seal of the court that an appeal has been taken and bail given, and the sheriff or other officer having the defendant in custody must, upon receiving it, discharge the defendant from custody and cease all further proceedings in execution thereof, and forthwith return to the clerk of the court 652 PRACTICE IX SUPREME COURT. [ 1397. who issued it the execution under which he acted, with his return thereon, and if it has not been issued, it shall not be until after final judgment on the appeal. [Code, 5454.] Sec. 78. The party appearing is the appellant, the adverse party the appellee, but the title of the action shall not be changed on the appeal, and the cause shall be so docketed at the commencement of the period as- signed for trying causes from the judicial district from which the appeal comes, which causes shall take pre- cedence of all other business, be tried at the term at which the transcript is filed, unless continued for cause or by consent of the parties, and be decided, if practi- cable, at the same term. [Code, 5455.] Sec. 79. The personal appearance of the defendant in the supreme court on the trial of an appeal is in no case necessary. [Code, 5456.] Sec. 80. An appeal shall not be dismissed for any in- formality or defect in taking it, if corrected in a reason- able time, and the supreme court must direct how it shall be corrected. [Code, 5457.] Sec. 81. No assignment of error is necessary. [Code, 5458.] Sec. 82. Criminal actions shall be presented in the supreme court, by printed abstracts, denials, arguments and petitions for rehearing, as required by the rules ap- plicable to civil actions, provided that the defendant shall be entitled to close the argument. The provisions of the code and the rules of the court in civil procedure relating to the printing, serving and filing of abstracts, denials, arguments, petitions for rehearing, notice thereof and of oral arguments, motions and resistances thereto, the certification of the record and the filing of decisions and opinions, shall apply in criminal cases. [Code, 5459, 5461.] Sec. 83. If the appeal is taken by the defendant the supreme court must examine the record, without regard to technical errors or defects which do not affect the sub- 1397.] PRACTICE IX SUPREME COURT. G53 stantial rights of the parties, and render such judgment on the record as the law demands; it may affirm, re- verse, or modify the judgment, or render such judgment as the district court should have done, or order a new trial, or reduce the punishment, but cannot increase it. And in case the judgment of the trial court is reversed or modified in favor of the defendant on the appeal of the defendant, he shall be entitled to recover the cost of printing abstract and briefs not exceeding one dollar for each page thereof, to be paid by the county from, which the appeal was taken. [Code, 5462.] Sec. 84. If the state appeals the supreme court can- not reverse or modify the judgment so as to increase the punishment, but may affirm it, and shall point out any error in the proceedings, or in the measure of punish- ment, and its decision shall be obligatory at law. [Code, 5463.] Sec. 85. If a judgment against the defendant is re- versed without ordering a new trial, the supreme court must direct that the defendant be discharged and his bail exonerated, or if money be deposited instead, that it be refunded to him. [Code, 5464.] Sec. 86. On a judgment of affirmance against the de- fendant, the original judgment shall be carried into ex- ecution as the supreme court shall direct, except as other- wise provided. [Code, 5465.] Sec. 87. The decision of the supreme court, with any opinion filed, or judgment rendered, must be recorded by its clerk and after the expiration of the period al- lowed for a rehearing or as ordered by the court, or pro- vided by its rules, a certified copy of the decision and opinion shall be transmitted to the clerk of the trial court, filed and entered of record by him, and there- after the jurisdiction of the supreme court shall cease and all proceedings necessary for executing the judg- ment shall be had in the trial court, or by its clerk. [Code, 5466.] Sec. 88. Unless some proceeding in the district court 654 PEACTICE IN SUPEEilE COUKT. [ 1398, 1399. is directed, a copy of the judgment of the trial court and decision on appeal, or of the judgment and decision on appeal, certified by the clerk of the trial court, shall be delivered to the sheriff, or other proper officer, as an exe- cution, and shall authorize him to execute the judgment of the court, or take any steps required to bring the ac- tion to a conclusion. [Code, 5467.] Sec. 89. If a defendant, imprisoned during the pen- dency of an appeal, upon a new trial ordered by the su- preme court, is again convicted, the period of his former imprisonment shall be deducted from the period of im- prisonment to be fixed on the last verdict of conviction. [Code, 5468.]" 1398. Of the construction and modification of the rules. "Sec. 90. When, by reason of peculiar cir- cumstances, the foregoing rules relating to the abstract, preparation and argument of causes, ought to be waived or modified in any case the party desiring such waiver or modification may, upon reasonable notice to the ad- verse party, apply to any judge of this court in vacation, or to the court in term time, for an order directing the waiver or modification desired. The application shall be in writing, shall set out the peculiar facts relied upon by the applicant, and shall be verified by the party, or a person having knowledge of the facts, and certified by counsel as being true and made in good faith. The order upon such application shall be in writing, and shall be filed with the clerk of this court. In no case will these rules be waived or modified upon agreement of counsel alone. [Old Rules, 101.]" 64 1399. Of the distribution of printed matter. "Sec. 91. The clerk shall make the following distribu- tion, of all printed abstracts, denials of abstracts, briefs and arguments received under the foregoing rules: One copy to each judge of the court, one copy to the State library, two copies to the law department of the State university, and the remainder shall be placed in his office, 64 Sec. 1334. 14:00, 1401. "J PRACTICE IX SUPREME COURT. 655 one copy of which shall remain permanently among the files. [Old Kules, 102.]" C5 1400. Of the return of papers and exhibits. "Sec. 92. If a new trial is granted, the clerk, as soon as the cause is at an end in the supreme court, shall trans- mit to the clerk of the court below all original papers or exhibits certified up from said court; if a new trial is not awarded, or if the cause is triable de novo, either party desiring to withdraw the same may, by motion, showing proper grounds therefor, and upon five days' notice to the other party or his attorney, secure an order from the court or a judge thereof, allowing him to do so, upon filing a receipt for the same with the clerk of this court. [Code, 4126; Old Kules, 113.]" 66 1401. Of costs. "Sec. 93. The appellant may be required to give security for costs, under the same cir- cumstances and upon the same showing as plaintiffs in civil actions in the inferior courts may be. [Code, 4135.] 67 Sec. 94. When the parties, or their attorneys, shall furnish printed abstracts, denials of abstracts, briefs, ar- guments or petitions for rehearing in conformity to the rules of this court, the clerk will tax the actual cost of printing the same, which shall not exceed the sum of one dollar for every five hundred words, embraced in a single copy thereof, against the unsuccessful party not furnish- ing the document, to be collected and paid to the success- ful party as other costs. It will be the duty of any party who files any printed matter to state, either on the title page or at the end of the document, in writing or i_ print, and have certified by his attorney as being correct, the actual cost of the printing of the same, and no costs wil be taxed for such printing unless this statement is made. [Code, 4142; Old Rules, 95.] Sec. 95. If any denial of the abstracts, transcript: records is made, or if an additional abstract is filed, with- e 8 Sec. 1346. 67 Sec - 1353 ' eo Sec. 1357. 656 PEACTICE IX SUPEEME COUET. [ 1401. out good and sufficient cause, the costs of the same, or any unnecessary part thereof, and of any transcript thereby made necessary, shall be taxed to the party caus- ing the same; and when any unnecessary costs have been made by either party the court will, upon application, tax the same to the party making them without refer- ence to the disposition of the case. [Code, 4118, 4120; Old Rules, 95.] 68 Sec. 96. Whenever the translation of the shorthand notes is required to be filed in this court, the clerk shall tax as part of the costs in the case, the expense of pro- curing the same, which shall not exceed the rate of five cents per hundred words. If the amount paid or agreed to be paid is not stated in the translation so filed, the clerk shall tax at the statutory rate. [Code, 4142.] Sec. 97. All other taxable fees and costs shall abide the result of the appeal and be taxed to the unsuccessful party unless otherwise ordered. [Code, 3853, 4142.]" 1402. Of the admission of attorneys. "Sec. 98. Examinations of applicants for admission to the bar will be held at each regular term of court, commencing on the first day of the term. [Old Rules, 103.] Sec. 99. Each applicant for admission shall, at least five days before the first day of the term at which he asks to be examined, file with the clerk a written request for examination in his own handwriting and signed by him- self, accompanied with proofs of his qualifications as to age, residence, and character and time of study, as re- quired by Code, 310, all prepared and presented in the manner prescribed by these rules. [Old Rules, 104.] Sec. 100. Proof of qualification as to age, character, place of residence, and time and place of study, shall be by affidavit made before some officer authorized to ad- minister oaths. When made before an officer not hav- ing a seal, other than a judge of the supreme, district or superior courts of this State, his official character and signature shall be authenticated by a proper certificate s Sec. 1333. 1401.] PRACTICE IX SUPREME COURT. 657 attested by the seal of the clerk of a court of record. Proof of the applicant's character, residence and age shall be by affidavits from at least two witnesses, and the applicant shall also make affidavit as to his age and place of residence. Proof of his term of study shall be by affi- davit of the member of the bar, or judge, with whom he pursued his studies; and when he has studied at a law school, such fact and his term of study shall be shown by the affidavit of one or more of the professors or instruct- ors of such school. Such affidavits must show that the applicant has actually and in good faith pursued the tudy of the law in the manner and for the time pre- scribed by the statute; and must also show that the affi- ant is a practicing lawyer, judge of a court of record, or professor or instructor in a law school at which the appli- cant studied. [Code, 315; Old Rules, 108.] Sec. 101. In estimating the time of study, a school year of thirty-six weeks spent at a reputable law school in the United States shall be equivalent to a full year spent in an office, and a fraction of a school year spent in such law school shall be considered the equivalent of the same fraction of a full year spent in the office of an attor- ney or judge. [Code, 310; Old Rules, 112.] Sec. 102. On the morning of the first day appointed for the examination, the court will appoint a committee of not less than three members of the bar, who, with the attorney-general, as ex officio chairman of the committee, will assist in the examination of applicants for admis- sion. [Old Rules, 105.] Sec. 103. The court will also prepare not less than thirty printed questions to be submitted to each appli- cant, which he shall answer in writing. While engaged in answering these questions he shall not have access to books or papers, nor will he communicate with any one upon the subject of the examination. The printed ques- tions will be varied at each term. [Old Rules, 106.] Sec. 104.. Upon consideration of the proofs as to quali- fication and of the oral and written examinations, the Vol. 1142 658 PRACTICE IX SUPREME COURT. [ 14:01. court will admit or reject the candidate. [Old Rules, 107.] Sec. 105. Students in the law department of the uni- versity who are recommended by the faculty of said de- partment as candidates for graduation, and as persons of good moral character who have actually and in good faith studied law for the time and in the manner required by statute, at least one year of such study having been as a student in said department, may be examined at the university by a committee composed of not less than three persons, members of the bar, or judges of courts of record, appointed by the supreme court for that purpose, and upon the certificate of such committee that such can- didates possess the learning and skill requisite for the practice of law, they shall be admitted without further examination. [Code, 312.] Sec. 106. The chief justice or any judge of this court may administer the oath prescribed by the statute at Iowa City to each and every person recommended by the examining committee appointed to examine students of the law department, and the person so administering the oath shall report to the clerk of this court the names and postomce addresses of the persons so admitted. The clerk will thereupon enter of record the fact of their admission, and upon payment of the requisite fee will issue to each of the persons so reported, a certificate of admission to the bar. [Old Eules, 110.] Sec. 107. Any person who becomes a resident of this State after having been admitted to the bar of any other of the United States in which he has previously resided, upon satisfactory proof that he is at least twenty-one years of age, of good moral character and an inhabitant of this State, and that he has practiced law regularly for not less than one year in the State from which he came, may be admitted to practice in this State, without exam- ination or proof of the period of study required of other applicants. Proof of admission to the bar in another State may be made by the original certificate of adniis- 1401.] PEACTICE IN SUPEEME COUET. 659 sion, or by a duly authenticated copy of the record show- ing his admission to the bar, proved as records of sister States must be when admitted in evidence in the courts of this State. Proof of other qualifications must be made in the same manner as the showing required of appli- cants for examination. [Code, 313; Old Rules, 109.] Sec. 108. Any member of the bar of another State act- ually engaged in any cause or matter pending in this court may appear in and conduct such cause or matter, while retaining his residence in such other State, with- out being admitted to practice under the foregoing pro- visions. [Code, 316.]" Any young man applying for admission to the bar should study these rules so that he may in all respects comply with them. It should be understood that they are rigidly enforced, and every term of court applicants are prevented from taking the examination because they have failed in some particular to comply with the re- quirements of the rules. The examinations are thorough and exhaustive, and no applicant should apply for examination unless thorough- ly prepared. CHAPTER LXXXVI. OF THE UNWRITTEN PRACTICE OF THE SUPREME COURT.* Sec. 1403. Preliminary statement. 1404. Of advancing causes. 1405. Of oral arguments. 1406. Of the submission of causes. 1407. Of setting aside submissions. 1408. Of restraining orders. 1409. Of alimony in divorce proceedings. 1410. Of attorney's fees. 1411. Of costs. Section 1403. Preliminary statement. The stat- utes and written rules which relate to the practice in the supreme court, although comprehensive, do not show fully the practice in all cases. Rules have been estab- lished by usage and are recognized and habitually applied by the court, which are in the nature of additions to the written rules, or are entirely independent of them, and concerning which the published reports of the court give but little information. Some of these rules are stated and the practice under them considered in this chapter. 1404. Of advancing causes. Section 19 of the statutes and rules regulating practice in the supreme court is as follows: "If a cause involves the decision of a question of public importance, or rights which are likely to be lost or greatly impaired by delay, the court will, in its discretion, upon motion supported by affi- davit, order the submission of the cause at a term in ad- vance of that at which it would otherwise be submitted." This rule was designed to state in a formal manner a well, established practice of the court to set down for sub- * This chapter was written at the request of the author by Judge G. S. Robinson, of the supreme bench of this State. GGO 1404.] UNWRITTEN PRACTICE IN SUPEEME COURT. 661 mission in advance of its regular order causes which in- volve questions of public and general importance, as the interpretation of a statute of the general assembly or an ordinance of a city or town which affects the current business interests of many people, especially if it be of a penal nature. A cause which involves a controversy in regard to real property which has been sold at judicial or tax sale, w r here the right of redemption is likely to ex- pire and be lost before the cause can be submitted and determined in its regular order may be advanced. A cause which involves a question of controlling import- ance, common to several cases which may be disposed of by a determination of the question, may also be ad- vanced, not necessarily because of the amount of inter- ests involved, but in part to diminish litigation. If, in any case, valuable rights are likely to be lost or greatly impaired by delay, the cause will be advanced. This has been done frequently in cases involving the right to hold a public office where a claimant has been excluded from the office and the term is likely to end before his case can be determined in its regular order. Criminal causes are always advanced without applica- tion therefor, and take precedence of all other business from the judicial district from which they are appealed. 1 Doubtless causes will be advanced for other reasons than those given. The power to advance is exercised by the court in the interest of justice, but with due regard to the rights of all litigants who have claims upon the time of the court. Ordinarily a cause will not be advanced merely be- cause it involves a large amount of money or other prop- erty, nor because numerous persons are interested in it. A cause can not be advanced by agreement of parties alone, unless it be of a character to justify its advance- ment, under the rule the agreement of parties to advance it will not be given effect. The application to advance a cause should be made by i Rules, Sec. 78. 662 UNWRITTEN PRACTICE IN SUPREME COURT. [ 1405. motion supported by affidavits or by statements based upon the record before the court, and should show clearly the grounds upon which an advancement is asked. Due notice of the application should be given to the adverse party, and resistance thereto may be made as in other cases. When a cause is advanced it is determined at the earliest date practicable after submission. 1405. Of oral arguments. Sections 39 to 44 in- clusive of the printed rules prescribe the time and meth- od of preparing, serving and filing printed arguments and the notice of oral arguments and the time and order in which they may be made, with sufficient fullness for most cases. But questions frequently arise for which the rules do not in terms provide, but which are determined by the settled practice of the court. Proceedings by certiorari may be, and frequently are, instituted in the supreme court, and are prepared for submission in the same manner, so far as is practicable, as are other cases. Printed arguments must be served and filed under the rules, and the failure to serve and file them is attended with the same consequences as it would be in other cases. Oral arguments on motions are not permitted, but ar- guments in writing or in print are invited and desired, not only in support but also in resistance of the motion. It is good practice, when practicable, to submit a mo- tion with the case, when that is submitted for final de- termination, and to argue the motion in the printed briefs. Of course that can not be done when a determin- ation of the motion is required before the case is sub- mitted, but in such cases written or printed arguments are desired. Parties are not permitted to change the order in which oral arguments shall be made, nor to fix the time for oral argument at a date not included in the time of the as- signment in which the cause appears, without the con- sent of the court and that is given rarely, and only for reason of unusual importance. If the business of the 14U6.] UNWRITTEN PRACTICE IN SUPREME COURT. 663 court justified such an order, a cause would be set down for oral argument at a time not included in the assign- ment to which the cause belongs; and in rare cases, in- volving matters of controlling and urgent importance, cases have been assigned for oral argument in advance of the assignment in which they would regularly appear. But such cases are exceptional, and the orderly adminis- tration of the business of the court and the interests of all parties who have business in it, require that the rules in regard to the presentation and submission of causes be habitually followed. If a cause is not ready for submission when it is reached in its order, it is passed to the foot of the assign- ment, but the right to submit it on oral argument is not thereby waived. All parties who have given due notice of oral argument are entitled to be heard before any oral argument in the next assignment is made, even though the time of the assignment, to which the case to be ar- gued orally belongs, is insufficient, and time included in the next assignment is required for the oral argument. An agreement of parties to submit a cause without oral argument on a later date than the one assigned for it will be given effect by the court. 1406, Of the submission of causes. It is the duty of the clerk of the court to arrange and set a proper number of causes for trial for each day of a term of court, placing together those from the same judicial district. 2 A preliminary call of all the causes included in each as- signment is made when the assignment is reached. When that call is made all cases in which there is an argument for each party which has been duly served and in which no notice of oral argument has been given and in which there is no objection to a submission called to the attention of the court, are submitted without any personal appearance or request therefor by either party. On the next, or peremptory, call of the assignment, if there be an argument for but one party to an action, and 2 Rules, Sec. 17. G64 UNWRITTEN PRACTICE IN SUPREME COURT. [ 1406. it is the first term at which the cause could have been submitted, and there is no demand for a submission, the cause is passed, and if no demand for a submission is made during the term the cause is continued, but if it be the second term at which the cause has been assigned for submission, and an argument for the appellant has been duly served and filed, the cause is submitted. The submission of a civil cause for determination on the mer- its is not taken unless there be an argument for the ap- pellant, even though the burden of showing a cause of action be upon the appellee, and there is an argument for him on file. In such a case the appellant will be deemed to have abandoned his appeal and the judgment of the trial court will be affirmed or the appeal will be dis- missed without regard to the merits of the case. 3 That would not be true where the appellee has also appealed and has duly served and filed a printed argument. In such a case the questions involved in the appeal of the appellee would be considered, and, so far as necessary, determined. The rules requiring arguments are not strictly fol- lowed in criminal cases, and such cases are usually con- sidered on their merits even though no printed argu- ment be filed, notwithstanding the fact that the general rules which govern the submission of causes apply in criminal as well as in civil causes. Oral arguments are permitted on a petition for rehear- ing, when the party applying therefor gives notice there- ! in his petition, 4 but if a petition be sustained the cause is then set down for submission on printed arguments, and no further oral argument is permitted. If a party do not desire to make an oral argument it is rarely necessary for him to be present in court when his case is called. If it appear to be ready for submission and 3 objection is made a submission is taken. If the ap- pellee has not served and filed a printed argument but 282. sRaynor v. Raynor, 77 Iowa, * Rules, Sec. 64. 1407.] UXWRITTEX PRACTICE IX SUPREME COURT. 665 the appellant nevertheless desires a submission of the cause and appears to be entitled to and demands it, in the absence of a showing- by the appellee for a continuance the submission will be taken. Ordinarily it will be suf- ficient for a party to inform the clerk of his desire for the submission of a cause which is ready on his part for sub- mission, and if the parties agree to a continuance or other proper disposition of the cause it will be sufficient in most cases to notify the clerk of the fact, and it will then be brought to the attention of the court and proper action be taken. If either party has failed to serve his argument the length of time required by the rules be- fore the cause is reached in its order, the adverse party is entitled to a continuance of the cause. 1407. Of setting aside submission. It some- times happens that after the submission of a cause a party thereto discovers some omission or defect in the record. In such a case he may apply by motion before the case is decided to have the submission set aside in order to cure the defect, and if a proper showing of care and diligence on his part be made the submission will be set aside and the desired amendments be permitted. It is ordinarily too late to correct a defect in the record after the case has been decided as rehearings are not granted, especially in civil cases, to give an opportunity to correct the record. 5 That rule has been somewhat re- laxed in criminal cases in which amendments to the rec- ord have sometimes been permitted on rehearing on a showing that the defendant was free from negligence. 6 Notice of an application to set aside the submission of a cause should be served on the adverse party and resist- ance thereto may be made as provided in the rules which relate to motions. If the printed arguments contain scurrilous or other improper matter, as unwarranted attacks upon the trial court or attorney for the adverse party, they may be s McDermott v. Iowa Falls & S. e State v. Proctor, 86 Iowa, 699. C. R. Co., 85 Iowa, 191. 6G6 UXWBITTEX PRACTICE IN SUPREME COURT. [ 1408. stricken from the files by the court either with or with- out a motion, or other measures, as the taxing of costs against the offending party may be taken to punish the abuse and prevent its repetition. 1408. Of restraining orders. In most cases the taking of an appeal and the filing of a supersedeas bond stays proceedings on the judgment or order of the trial court until the appeal is determined. But that is not al- ways true of self-executing judgments and orders where no act of a ministerial officer is necessary to make it ef- fectual. 7 In some cases of that kind the supreme court has interfered by an order restraining proceedings on the judgment or order pending an appeal therefrom. The purpose of such an order is to protect the jurisdiction of the supreme court to prevent irreparable injury and the failure of justice, and it will not be granted if there be any other adequate remedy. The power to make such orders is exercised under the provision of the constitution of this State which provides that the supreme court shall have "power to issue all writs and process necessary to secure justice to parties, and exercise a supervisory control over all inferior ju- dicial tribunals throughout the State," 8 and it may be that the power is inherent in the court, not necessarily depending upon the constitutional provision cited. Al- though the power has been exercised occasionally for many years the method of procedure to invoke it is not well settled, nor can all the cases in which it may be ex- ercised be enumerated. It has been used to restrain pro- ceedings on a petition to a board of supervisors asking the relocation of a county seat. 9 It has also been used where a temporary injunction was dissolved, restraining pending an appeal from the order of dissolution, the doing of the acts which the injunction dissolved had pro- hibited. It has also been used to restrain, pending an appeal, the enforcement of a judgment rendered in pro- 7 Elliott's Appellate Procedure, s Court of Iowa, Art. V., Sec. 4. Sec. 292. Luce v. Fensler, 85 Iowa, 596. 1409.] UNWRITTEN PRACTICE IN SUPREME COUBT. 667 ceedings by certiorari. The order is sometimes granted by a judge of the court, with leave to apply to the court in a summary manner for a review of the order. Al- though that practice has prevailed for a considerable number of years the court has not had occasion to de- termine whether it is authorized, and its validity may be regarded as unsettled. 1409. Of alimony in divorce proceedings. Section 3177 of the code relates to actions for divorce and alimony, and provides that: "The court may order either party to pay the clerk a sum of money for the separate .support and maintenance of the adverse party and the children, and to enable such party to prosecute or de- fend the action." It is the practice of the supreme court to grant the re- lief contemplated by that section in actions for divorce and alimony pending an appeal in that court. Upon a proper showing allowance will be made for the tem- porary support of the husband or wife, for the temporary support of their children, for the expenses necessary to procure a transcript of the record, to print the abstract and arguments, to pay for the services of an attorney, and for any other expense necessary to a proper submis- sion of the cause in the supreme court. 10 The applica- tion for such an allowance is ordinarily made by mo- tion supported by affidavits, and in some cases by refer- ence to the record in the case, and may be resisted by counter-affidavits. The application should show that a judgment has been rendered or an order made by the trial court from which an appeal has been taken, and facts which show that the allowance asked is not only proper but necessary, as, for example, that the applicant is with- out sufficient means to maintain herself and to prosecute the appeal, that the cost of maintenance and of prose- cuting the appeal will be specific sums which should be stated, and that the adverse party has sufficient money or property for the payment of the allowance asked. The 10 Doolittle v. Doolittle, 78 Iowa, 695. 668 U^YRITTEN PEACTICE IX SUPREME COURT. [ 1410. averments of fact should be sufficiently full to enable the court to judge of the merits of the application and should show when the payments asked are required. The resistance may set out any facts which would tend to show that no allowance should be made or that it should be for a smaller sum than that asked. The appli- cation for an allowance for temporary support and for the expenses of prosecuting the appeal is usually made before the cause is ready for submission in the supreme court, but may be made and submitted with the cause for determination when the cause is decided. When the application is submitted the court will in-, vestigate the showing made and determine what allow- ance, if any, is demanded, and make an order to enforce its conclusions. 1410. Of attorney's fees. Section 1 of chapter 66 of the acts of the Twenty-first General Assembly provid- ed that in actions to enjoin nuisances committed by keep- ing for sale and selling intoxicating liquors in violation of law the plaintiff, if successful in the action, should be entitled to an attorney's fee of not less than twenty-live dollars, to be taxed and collected as costs against the de- fendant. It was the practice of the supreme court, under that chapter, to tax an attorney's fee for services ren- dered in that court, and also for services rendered in the court below, if no allowance had been made for such ser- vices, as, in case when the plaintiff had failed in the lower court but had succeeded in the supreme court. 11 Section 2406 of the code provides that if the plaintiff is successful in an action of the character described "an attorney's fee of twenty-five dollars shall be taxed as costs in his favor." Section 2429 provides for an allow- ance to the attorney who prosecutes the case, of a reason- able sum for his services, and in case a fine is assessed, for ten per cent, of the fine collected. Whether there is any conflict between these sections so far as they provide 11 Hamilton v. Baker, 91 Iowa, 101; Fair v. Seaward, 82 Id., 222; Farley v. O'Malley, 77, Id., 532. 1411.] UNWRITTEN PRACTICE IN SUPREME COURT. GG9 for the allowance of an attorney's fee in actions in equity to enjoin and abate nuisances is a question not yet de- termined. But in view of the practice of the court under prior statutes it can be said with reasonable certainty that the court will allow the fee authorized by law in a case tried on appeal, even though it was not allowed by the court below. 1411. Of costs. It is the practice of the court, when proper application is made, to tax all unauthorized costs to the party responsible for them, without regard to the final disposition made of the cause. 12 Thus, if the abstract contain matter not material to the determina- tion of any question presented by the appeal, 13 or if it set out the testimony of witnesses by questions and answers unnecessarily instead of in a condensed narrative form, 14 costs of the matter improperly abstracted will be taxed to the appellant. In a case where an amendment to an assignment of errors was filed during the term of court at which the cause was submitted all costs incurred prior to the filing of the amendment were taxed to the appel- lant. 15 If the appellee deny the correctness or sufficiency of an abstract upon insufficient grounds and a transcript is thereby made necessary the cost of the denial and of the transcript will be taxed to the appellee. 16 And if the ap- pellee set out in an additional abstract matter which was already properly shown in the abstract of the appellant, or if he insert in the additional abstract any immaterial matter, or set out material matter at greater length than is reasonably necessary, the cost of the improper part of the abstract will be taxed to the appellee. 17 In some cases, as where the appellant succeeds as to a part only 12 Rules, Sec. 95. i Taylor v. Chicago, M. & St. is Bigelow v. Hoover, 85 Iowa, P. R. Co., 80 Iowa, 433; Bucknell v. 164; Boardman v. Willard, 73 Id., Deering, 68 N. W. Rep., 827. 23. i? Bowman v. Western Fur Mfg. i* Jons v. Campbell, 84 Iowa, 561. Co., 64 N. W. Rep., 778. is Stanley v. Barringer. 74 Iowa, 37. 670 UNWRITTEN PRACTICE IN SUPREME COURT. [ 1411. of several separate and distinct issues, the costs may be apportioned between the parties to the action. Application for taxing costs is ordinarily made by motion, which may be submitted with the cause or pre- sented after the cause has been determined. When a party asks that costs improperly caused or incurred in preparing the case for submission, be taxed to the ad- verse party, it is proper and the best practice to submit a motion therefor with the case. The facts are then fully investigated when the record is examined for a de- termination of the case on the merits, and a correct con- clusion is most easily reached. CHAPTER LXXXVII. OF THE FORCIBLE ENTRY AND DETENTION OF REAL PROPERTY. Sec. 1412. Ct jurisdiction of the action. 1413. When the action lies. 1414. Parties to the action. 1415. Of the notice to quit. 1416. Of the petition. 1417. Of service of notice, appearance, etc. 1418. Of trial When by equitable proceedings. 1419. When actions barred, etc. 1420. Of the judgment. Section 1412. Of jurisdiction of the action. Here- tofore this action could be brought only in a justice's court. Now the district and superior courts within the county, and justices of the peace within the township where the subject matter of the action is situated, have concurrent original jurisdiction, and the court first ac- quiring jurisdiction will retain it until judgment, unless the cause is transferred from a justice's court to a supe- rior court or to the district court, or from a superior court to the district court, which may be done by the agreement of the parties. In cases where a judgment is rendered in a justice's court an appeal may be taken to the district or superior court. 1 On such an appeal an amendment to the petition which more particularly de- scribes the property, but does not change the issue, is permissible. 2 1413. When the action lies. The action may be brought when: 1. The defendant has by force, intimidation, fraud or i Code, Sec. 4211. 2 Kuhn v. Kuhn, 70-682. 671 GT2 DETENTION OF PEOPERTY. [ 1113 stealth, entered upon the prior actual possession of an- other in real property, and detains the same. "2. Where a lessee holds over after a termination or contrary to the terms of his lease. 3. Where the defendant continues in possession after a sale by foreclosure of a mortgage, or on execution, un- less he claims by a title paramount to the lien by virtue of which the sale was made, or by title derived from the purchaser at the sale; in either of which cases such title must be clearly and concisely pleaded by the defendant. 4. For the non-payment of rent, when due. 3 Under a prior corresponding provision it was held that threats sufficient to induce fear of violent ouster would bring the case within the statute. 4 Fraud in the execution of a lease under which a defendant holds possession can- not be set up by him to justify his holding over after the expiration of such lease. 5 The tenant of property sold under execution may be ousted under this statute after the purchaser's right to possession is complete, although such tenant has planted or sowed crops which have not matured. 6 The question involved is the fact of possession alone, not tLe right of possession, hence one may render him- self liable to this action by entering his own premises, by force, fraud or stealth. 7 Possession in fact may exist as to unenclosed or unimproved land which will be pro- tected in this action. 8 An assault and battery is not justifiable when made for the purpose of taking posses- sion of property of which another is in peaceable posses- sion. 9 And an owner who forcibly enters upon the pos- session of one in possession is liable for trespass, regard- less of the title of the one in possession. 10 And a writ against a person claiming as a tenant will not be valid as against another person claiming as an under lessee s Code, Sec. 4208. Emsley v. Bennett, 37-15; Lorimier * Harrow v. Baker, 2 G. Gr., 201. v. Lewis, Mor., 253. 5 Simons v. Marshall, 3 G. Gr., s Langworthy v. Myers, 4-18. 502. 9 state v. McKinley, 82-445. s Wheeler v. Kirkendall, 67-612. 10 Kimball v. Shoemaker 82-459 " Stephens v. McCloy, 36-659; 1414, 1415.] DETENTION OF PKOPERTY. 673 from such, tenant if such under lessee was in possession before the proceeding was commenced. 11 If it is claimed that the defendant entered into pos- session by force, fraud or stealth, the latter may show possession for years under a lease from the party seek- ing possession. 12 1414. Parties to the action. The legal repre- sentatives of a person who, if alive, might have been plaintiff, may bring this action after his death. And by legal representatives is meant the executor or adminis- trator. 13 1415. Of the notice to quit. Before an action .can be brought in any except the first of the above classes of cases, three days' notice to quit must be given the defendant in writing. 14 This notice may be in the following form: FORM OP NOTICE TO TENANT TO QUIT. To . You are hereby notified that I demand that you quit and surrender to me the possession of the following described premises situated in the city of , county of , Iowa, now used and occupied by you as a dwelling house (or as the case may be), to-wit: (describe the prop- erty as accurately as possible), and if you fail to do so within days (or within such time as the tenant may be entitled to) after the service of this notice on you, I shall take the necessary legal steps to obtain possession of said premises. Dated this day of , 18. (Signature.) This notice may be given before the expiration of the tenant's term and more than three days before the ac- tion is brought. 15 The service of the notice is not the commencement of the action, and if the time fixed therein for the surrender of possession is after the ex- piration of thirty days, peaceable possession, as provided 11 State v. Smith, 70 N. W., 604. i* Code, Sec. 4210; Gifford v 12 Peddicord v. Kile. 83-542. King. 54-525. is Code, Sec. 4209; Beezley v. " McLain v. Calkins, 77-468; Burgett, 15-192. Drain v. Ja'cks, 77-629. Vol. II. 43. 674: DETENTION OF PROPERTY. [ 1416. in code, section 4217, the action will be ineffectual. 16 The service of the notice being an eviction, the tenant upon whom it is served may relinquish possession and sue the landlord for damages in case the eviction is unlawful. 17 If instead of serving the three days' notice to quit, ser- vice is made of a thirty days' notice to terminate a ten- ancy at will, as authorized under section 2991 of the code, the case being one where such thirty days' notice was unnecessary, the proceedings under such notice, after the expiration of the thirty days from its service, will not be void, but it will be an irregularity only. 18 The notice, being the basis of a private right must be proved as any other matter in pais. 19 1416. Of the petition. The petition must be sworn to, and will be sufficient if it conforms to the re- quirements of the statute. 20 The petition may be in the following form: FORM OF PETITION IN FORCIBLE ENTRY AND DETAINER. Title, Venue. The plaintiff states: that on the day of , IS , he leased, by written contract to the defendant, the following described real property (here describe it) situated in the county of - - and State of Iowa, a copy of said contract being hereto attached marked exhibit "A" and made a part of this petition. That by the terms of said contract plaintiff leased said property to the defendant for one year from the day of , 18 , to and including the day of , 18 . That plaintiff was when said lease was made and ever since has been the fee simple owner of said premises, and is now, and ever has been the owner and holder of said lease. That on the *day of - , 18 (three days or more before the expiration of the term of the lease), plaintiff caused to be served upon the defendant a written notice to quit and surrender the possession of said premises a copy of the same being attached hereto marked exhibit "B" and made a part hereof. That disregarding said notice and the terms of his said lease, the defendant holds and retains possession of said premises contrary there- is Heiple v. Reinhart, 69 N. W., i Hollingsworth v. Snyder, 2- 871. 435. ifTarpyv Blume, 70 N. W., 620. 20 Code, Sec. 4212; Simons v. is Shriver v. Klinkenberg, 67- Marshall, 3 G. Gr., 502. 544. 1417-1420.] DETENTION OF PROPERTY. 675 to, and in violation of the terms of said lease, his said term having ex- pired on the day of , 18 . Wherefore plaintiff prays for judgment against the defendant removing him from the premises and that plaintiff be put in possessioa thereof, that an execution issue accordingly and for costs. , attorney for plaintiff, (Add verification and attach exhibits referred to.) 1417. Of service of notice Appearance, etc. The action is commenced by the service of an original notice, as in other cases. If it is made to appear by affi- davit that personal service of the original notice cannot be made upon the defendant within this state, the same may be made by publication. 21 The time for appearance and pleading is the same as in other cases. 22 1418. Of trial When by equitable proceedings. When title is put in issue the cause must be tried by equitable proceedings. The appearance term will be the trial term, and no continuance will be granted for the purpose of taking the testimony in writing. Nothing in this chapter will prevent a party from suing for trespass or from testing the right of property in any other man- ner. 23 1419. "When action barred, etc. Thirty days' peaceable possession with the knowledge of the plaintiff after the cause of action accrues is a bar to this proceed- ing. 24 This action cannot be brought in connection with any other, nor can it be made the subject of counter claim. 25 1420. Of the judgment. If the defendant is found guilty, judgment will be entered that he be re- moved from the premises, and that the plaintiff be put in possession thereof, and an execution for the defend- ant's removal will issue to which should be added a clause commanding the officer to collect the costs as in other cases. 26 Said execution may be in the following form : 21 Code, Sec. 4213. 24 Code, Sec. 4217: Heiple v, 22 Code, Sec. 4214. Reinhart, 69 N. W., S71. 23 Code, Sec. 4216. 25 Code, Sec. 4218. 26 Code, Sec. 4221. 676 DETENTION OF PROPERTY. [ 1420. FORM OF EXECUTION FOR REMOVAL OF DEFENDANT. State of Iowa, County. The State of Iowa to the sheriff of county, greeting: Whereas by the judgment of the district (or superior) court of county, Iowa, rendered in an action wherein was plaintiff and was defendant, it was adjudged that the plaintiff was entitled to the immediate possession of the following described premises sit- uated in said county, and which are now wrongfully detained by, and in the possession of the said defendant, to-wit: (here describe the prem- ises as In the petition), and whereas it was adjudged and determined by said court that the said defendant be removed from said premises and the plaintiff be put in possession thereof, and that an execution should issue accordingly, and that plaintiff have and recover his costs of the said defendant, which were taxed at the sum of dollars. Now, therefore, in the name of the State of Iowa, we command you to remove the said defendant from said premises, and to put the plaintiff in possession of the same and to remove from said premises all persons claiming to hold the same or any part thereof under or by virtue of the authority or permission of said defendant. And you are further commanded and required to make the amount of said judgment for costs, to-wit: the sum of dollars, together with all accrued costs of the goods and chattels of the said defendant (except such as are by law exempt from execution) by levy and sale thereof according to law. And of this writ make due service and return. Witness my hand and the seal of said court this day of , 18. [Seal.] Clerk of the district court of county, Iowa. INDEX. THE REFERENCES ARE TO THE SECTIONS. VOL. I., SECTIONS 1 TO 770. VOL. II., SECTIONS 771 TO 1420. ABANDONMENT of homestead, effect of, 1069. of family by husband, wife may defend action, 71. of attachment by officer, 743. See Appeals. ABATEMENT when action will not abate, 10, 94, 95, 96. of action, when another action pending between same parties, 281. matter in, when may be pleaded in answer, 281. must be specially pleaded, 281. judgment on matter in, 632. of nuisance, 1170 to 1173. form of order for, 1174. ABOLITION of forms of action, 4. ABSCONDING See Attachment; see Exemptions. ABSENCE of evidence, application for continuance on ground of, 481. form of, and affidavit, 489. of a party, ground for continuance, 489. of attorney, ground for continuance, 483. of judges of the supreme court, proceedings in case of, 20. of the district court, proceedings in case of, 27. ABSOLUTE sale when; see Redemption; see Sheriff's Sale. ABSTRACT of record in supreme court, must be made and printed, 1333, 1336, 1338 to 1340; 1386. See Action of Right; see Partition; see Appeals. ACCEPTANCE of service of notice to take depositions, 375. by referee of appointment, 582. ACCIDENT new trial on ground of, 611. ACCORD AND SATISFACTION how pleaded; see Answer. ACCOUNT limitation of actions in cases of, 154. claim of public officer for compensation, is not an account, 15*. actions on must set out copy of account, 234. 677 678 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. ACCOUNT (continued) form of petition for goods sold and delivered, 250. on account stated, 250. on account for services, 250. failure to set out copy of sued on ground of demurrer, 270. barred, no ground for excluding books of, 450. when taken as true, 451. mortgage of, 956. See Account Books. ACCOUNT BOOKS when receivable in evidence, 442 to 447. explaining, 449. referring to, 448. ACCOUNTING See Partnership, ACCOUNT STATED form of petition on, 250. ACKNOWLEDGMENT to submission to arbitration, form of, 913. of service; see Acceptance; see Service. of satisfaction; see Mechanics' Liens and Claims; Mortgages. ACTIONS civil definition of, 1, 2. what they inc'ude, 2, 3. form of, 2, 206. technical abolished, 4, 206. when by ordinary proceedings, 5. equitable proceedings, 5, 6. of concurrent jurisdiction, 8. error in form of proceedings, effect of, 10. how remedied, 11. when objection waived, 12. of ordering change in the proceedings, 15. uniformity of proceedings, 16. brought by real party in interest, 54. beneficial party may bring, 54. one having legal title may sue, 54. indorsee of commercial paper may sue, 55. assignees may bring, 58, 59. by partners, 61. by executors, administrators and guardians, 62. by foreign administrators, 63. by trustees, 64. by person for whose benefit a contract is maae, 65. by persons authorized by statute to sue, 67. of suits by one or more for all, 68. by corporations, 69. by married women, 70. by parents, 71. by minors, 72. by insane persons, 73. of joinder of plaintiffs, 74, 75, 76, 77. of defendants in, parties having adverse interest, 78. in actions against married women, 79. against partners, 80. in foreclosure cases, 81, 1145. against minors, 82. against insane persons, 83. against unknown defendants, 84. INDEX. G ] 9 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. ACTIONS (continued) in cases for sale of intoxicating liquor, 86. joinder of, 85. in case of sale of intoxicating liquor, 80. in actions ex delicto, 87. in actions for conversion, 88. effect of release of joiut wrongdoer, 89. when new parties will be made, 90. substitution of parties in, 91, 95. in actions against sheriffs, 92, 93. will not abate by death of party or transfer of his interest, 10, 94, 96. . form of notice to executor to revive action, 96. in case of landlord's attachment, 97. venue of, 98 to 111. change of, in, 112 to 135. what is commencement of, as to limitations, 161. commenced by service of original notice, its form and requisites, 167 to 170, 187 to 190. See Limitation of Actions; see Original Notice; see Cause of Actions; see Joinder of Actions, of consolidation of actions, 203. effect of consolidation by agreement, 203. See Petition; see Pleadings, on bonds, 66. on notes and bills, 231. it must appear that plaintiff has a right to sue, 232. on written contracts, copy of contract must be set out, 233. on accounts, copy of account must be set out, 234. for torts, 235. for slander and libel, 236. no jurisdiction of, raised by demurrer, 259. trial of equitable, to court, 574, 575, 576, 577, 578. trial of, to court when jury waived, 574. by agreement, 574. practice, 578. trial of, to referees, 579 to 587. by several plaintiffs, or against several defendants, judgment when defendants not all served, 633. dismissal of, 648. form of judgment of, 648. for damages for wrongful suing out of attachment, 744. when brought on bond, 744. when brought independent of, 744. on bond originally, 745. by way of counter claim, 745. form of, 745. See Attachments. when cause of on attachment bond accrues, 750. by equitable proceedings to subject property to the satisfaction of a judgment, 846. form of petition in case of, 847. See Actions of Right, on bonds of public officers, 870. when they lie, 871. may be several on the same security, 872. extent of liability of sureties on, 873. to recover fines and forfeitures. 875 to 879. against railway companies for damages from fire, 880 to 886. C80 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. ACTIONS (continued) former statutes, holdings of courts under, 880. liability of under present statute, 881. for damages to stock, 887 to 891. See Railroads; see Stock; see Replevin and Detinue. on an award, or bond to abide it, 919. for writ of certiorari, when will lie, 945, 946. to recover mortgaged personal property, 967. in habeas corpus, 1031 to 1050. in injunctions, 1070 to 1091, 1097. on the bond, 1085. for change of name, 1004. for divorce, 1016 to 1025. to annul marriages, 1028, 1029. against tenants, 1097. against third persons to recover for property sold them by tenants, 1098. of mandamus, 1107 to 1117. to enforce mechanics' liens, 1118 to 1143. to foreclose mortgages on real estate, 1144 to 1161. to foreclose title bonds, 1144, 1161. of nuisance, 1167 to 1174. of partition, 1175 to 1207. of quo warranto, 1224 to 1231. receiver appointed in any civil, 1234. of trespass, 1303 to 1307. of waste, 1308 to 1312. of forcible enlry and detainer, 1412 to 1420. See Intervention. ACTIONS FOR THE RECOVERY OF SPECIFIC PERSONAL PROP- ERTY See Replevin and Detinue. ACTION OF RIGHT when it lies, 851. to quiet title, when it lies, 852. parties to the action, 853. to recover real property, no joinder with, 854. proceedings in to quiet title, 855. of service of notice, 856. petition in an action of right, 857., form of, 857. answer in, 858. bond in for payment of rent, form of, 858. practice in, 859. verdict in, what must state, 860 judgment in, requisites of, 861. limitation of recovery for use and occupation, 862. tenants in possession, liability of, 863. notice in actions to quiet title, form of, 864. petition in actions to, 865. form of, 865. of disclaimer and costs, 866. attorneys' foes, 866. new trials in. 867. appeals from order granting, 86S. constructive notice, 869. ACTS parts of, whole may be inquired into, 526. INDEX. 681 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. ADDITIONAL SECURITY for costs when required, 698. when required in attachment cases, 725, 723. when requir'ed of referees in partition, 1198. ADJOURNMENT of supreme court, 20, 1382. of district court, 27, 28. of cause after trial is commenced, 559. of taking depositions, 385. of sheriff's sale, 1280. See Supreme Court; see District Court; see Terms of Court. ADJUDICATION of claim of sub-contractors for lien on public buildings and im- provements, 1120. ADMINISTRATION See Executor and Administrator. ADMISSION when bar of statute of limitations removed by, 160. in a demurrer, 266. of persons as attorneys, 920, 921. of facts stated in pleading if not denied, 206. of signature, unless denied under oath, 291. ADOPTION of rules by Supreme Court, 1379. ADULTERY a ground for divorce, 1010. ADVANCING CAUSES when will be advanced, 1385, 1404. ADVERSE INTEREST See Parties. possession, 149. ADVERTISEMENTS of sheriff's sale, 1277. ADVICE judges can not give, 34. AFFIDAVITS for change of venue, 127, 128, 129. of service of original notice, 182. for service on Sunday, 184. for service of notice by publication, 189. of publication, 190, 192. to pleadings, 332 to 335. form of, 336 what is, 430. effect of when taken out of the State, 431. when party compelled to make, 432. what facts may be proved by, 432. notice of taking may be required, 433. cross-examination, when permitted, 433. publication, posting notices, etc., 435. interrogatories to pleadings sustained by, 469. answers must be supported by, 467. for continuance, form of, 489. of jurors to impeach verdict, 609. to sustain verdict, 609. to accompany submission of controversy, 677. form of, 677. to accompany motion for security for costs, form of, 697. form of counter, 697. 682 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. AFFIDAVITS (continued) in attachment, that property is exempt, 724. attached to notice of ownership, 739. form of, 739. in attachment for debts due the State, 760. form of, 760. for sale of perishable property in attachment suits, 763. and showing of garnishee to set aside default, 780. form of for issuance of execution on Sunday, 795. form of for order for examination of judgment debtor before return of execution, 836. of killing of stock by railroad, 887. form of, 887. requisites of, 892. of concealment in replevin cases, 903. of posting notice of sale of mortgaged chattels, 977. form of, 977. form of affidavit of officer conducting a chattel mortgage sale, 980. form of, to petition for landlord's attachment, 1103. form of, to statement for mechanic's lien, 1130. of death of defendant, in proceedings to revive judgments, 1273. of sureties, 727, 802. AFFINITY of judge, disqualifies, 34. when ground for change of venue, 118. AFFIRMATION See Oath. AFFIRMATIVE RELIEF See Answer; see Pleading. AGENT when may sue in his own name, 64. of a corporation, how served with original notice, 175. employed in an office or agency, how served with notice, 176. when may verify pleadings, 335. form of, 335. AGREED CASE how and when submitted, 675, 676, 677. form of submission, 677. form of affidavit to same, 677. AGREEMENT for change of venue, 120. depositions taken on, 378. form of, 378. judgment on, 641. of mortgagor and mortgagee to a chattel mortgage as to time of sale, 964. not to record mortgage, effect of, 959. ALIMONY See Divorce, Alimony and Annulling Marriages. ALLEGATIONS pleadings are, 204. material matter only should be alleged, 205, 208. facts only should be alleged, 208. evidence should not be alleged, 209, of inducement, proper, 209 of legal conclusions and presumptions, bad, 210. of injuries to personal property, 212. of a particular estate, when proper, 212. of payment, 214, 298. INDEX. 683 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. 'ALLEGATIONS (continued) of breach of covenant of warranty, 215. of warranty, 215. of an estoppel, 216, 298. of pleading when taken as true, 256. of consideration, when not necessary, 210. of kind and species of property, 212, 241. of ownership and title, 214. of special damage, 235. of malice when necessary, 236, 241. of a statute, 237. of performance of condition precedent, 239. of representative capacity, how made, 240. of a conveyance in pleading, 241. of breaches in condition of a bond, 241. of non-payment of damages, 241. of breach of contract generally, 241. See Pleading; see Petition; see Answer. ALLOWANCE of attachment in cases of tort, 717. of specific attachment when made, 752 to 756. of writ of certiorari, by whom, 948. See Attachment; see Injunctions; see Amendments; see Di- vorce, Alimony and Annulling Marriages. ALTERNATIVE denials bad, 288. AMBASSADORS State courts no jurisdiction of, 259. AMENDMENTS of petition as affecting statute of limitations, 162. of petition before answer, 340. of notice of, 340. after answer in discretion of the court, 341, 343. rule is to allow, 341. court may impose terms, 341. a demurrer may be amended, 3*1. when not permitted, 342. in attachment cases, 343, 723, 7G9. in injunction cases, 344, 1091. in cases of variance between pleadings and proof, 345. after appeal and trial by the supreme court, 346. on appeal from justices, 347. terms of allowing, 348. only proper to correct an original pleading, 349. supplemental pleadings when allowed, 349. filed without leave stricken from the files, 350. continuance on account of, 350. errors not affecting substantial rights will be disregarded, 351. manner of making, 352. construction and effect of amendments, 352. prayer for relief in original petition applies to an amendment, 352. court may permit without verification, 352. of records made by order of court. 353, 624. of statutes, 354. of bonds and original notices, 355. of substituting pleadings, 356. of application for continuance, 4SC. G84 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1425. AMICABLE ACTION See Agreed Case. AMOUNT IN CONTROVERSY See Supreme Court. no appeal when less than one hundred dollars, 22, 1317, 1381. See Appeals. ANNULLING MARRIAGES See Divorce, Alimony and Annulling Mar- riages. ANIMALS See Stock. ANOTHER ACTION PENDING when ground for a demurrer, 262. ANSWER is a pleading, 208. members of general assembly excused from, whsn, 255. no persons need on certain holidays, 255. when must be filed, 279. what it must contain, 280. forms of captions to, 280. matter in abatement may be stated in, 281. of the general denial, 282. what it must consist of, 282. form of, 282. it puts in issue, 283. what may be proved under, 283. by guardians, 284. form of, 284. what it must contain, 284. denying knowledge or information, 2S5. form and effect of, 285. specific denials in, 286. partial denials in, 287. alternative denials in, 288. how allegations of time, place, sum and quantity denied in, 289. where judgment is pleaded, denials in, 290. when performance of condition precedent is pleaded, denials in, 290. of denials when plaintiff sues as a corporation, partnership, execu- tor, etc., 290. signature to written instruments, how denied, 291. must be by one whose signature it purports to be, 292. what is a sufficient denial in such cases, 293. of the burden of proof, 294. when written instrument deemed genuine, 294. form of specific denial in, 295. of answer denying signature, *j6. new matter in, how pleaded, 297. matters which must be specially pleaded, 298. when payment must be thus pleaded, 298. when matter in mitigation must be specially pleaded in, 291). inconsistent defenses may be pleaded in, 300. effect of plea in confession and avoidance, 300. pleading new matter constituting counter claim, 301. what is a counter claim, 302. when new party necessary to determine, 303. Of counter claim in case of co-maker of surety. 304. of the judgment when counter claim is barred, 305. INDEX. 685 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. ANSWER (continued) effect of failure to plead counter claim in, 306. dismissal of action does not affect counter claim then pleaded, 306. cross-petition in, 307. when notice required, 307. pleading defenses jointly in, 308. equitable defenses, 309. counter claim, 309. affirmative defenses stated in a distinct division, 310. when answer demurrable, 311. when matter is stricken out on motion, 311. facts constituting a partial defense must not be pleaded as a com- plete defense, 311. defense part of does not need prayer for judgment, 312. form of answer pleading new matter, 313. pleading statute of limitations, 313. pleading inconsistent defenses, 313. pleading tender, 313. pleading usury, 313. pleading non-joinder of plaintiffs, 313. pleading account stated, 313. pleading breach of warranty, 313. pleading to action on an insurance policy, 313. to a petition on a policy of insurance, 313. demurrer to defense part of, 314, 315. grounds of, 315. allegations of, when deemed denied, 319. to rule to produce books and papers, 425. form of, 425. to interrogatories to pleadings, time of, 466. compelled to, 470. and counter claim on attachment bond, 745. form of, 745. of garnishee, when and how controverted, 785. of defendants in proceedings in equity supplemental to execution, 848. must be under oath, 848. effect of failing to answer, 848. in an action of right, 858. to the writ in habeas corpus case, 1046. form of, 1046. pleas to answer, 1047. requisites of in partition, 1184. when deemed true in, 1184. of minors in, 1185. form of, 1185. See Quo Warranto; see Replevin and Detinue; see Man- damus; see Injunction; see Mechanic's Liens and Claims; see Pleading; see Practice. APPELLATE PROCEEDINGS See Appeals. APPEALS will not lie from an order changing or refusing to change the venue, 115, 1314. from ruling on demurrer, effect of, 278. amendments after, 346. after appeal from justice's court, 347. depositions on trial of, from a justice of the peace, 400. 686 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. APPEALS (continued) bill of costs on must accompany record to supreme court, 708. lie from final judgment in action of right. 863. from order granting a new trial ia, 868. lie from an order appointing or refusing to appoint a receiver, 1248. time of taking, 1313. what it brings up for review, 1313. when an appeal lies generally, 1203, 1314, 1383. when an appeal will not lie, 1315, 1001. what is a waiver of the right to appeal, 1313. amount in controversy, how determined, 1317, 1383. form and requisites of the certificate, 1318, 1383. time of making certificate, 1319, 1383. questions involving an interest in real estate, 1320, 1383. cf notice of appeal, 1321, 1383. form of, 1321. service of, 1322, 1383. when perfected, 1322, 1383. form of acceptance of service, 1322. filing of notice of, 1323, 1383. waiving irregularities, 1323. of the supersedeas bond, 1324, 1387. form of, 1324. of the supersedeas, 1325. form of, 1325. form of the countermand, 1325. who may appeal, 1326. transcript, when necessary, what it must contain, 1327, 1396. record, when and how certified, 1327, 1386. denials of transcript, etc., 1328, 1386. what deemed a part of the record, 1329. when the evidence must be certified, 1329. forms of certificate, 1329. transcript, form of, 1330, 1396. form of certificate to, 1330. of corrections of the record, 1331. inspection of original papers, 1332, 1386. the abstract, its form and requisites, 1333, 1386, 1396. of taxing costs, 1333, 1401. s when the appeal will be dismissed, or the judgment affirmed 1335, >^ 1386, 1388. when the abstract will be deemed true, 1336, 1386. when the abstract may be attacked by motion, 1337, 1386. of the filing and service of amended and additional abstracts 1338 1386. when the abstract must contain all the evidence, or all the in- structions. 1339. what is sufficient to show that abstract contains all of the evi- dence, 1340. When an assignment of errors is necessary, 1341, 1388, 1396. sufficiency of the assignment. 1342. service and filing of the assignment, 1343, 1388. form of the assignment, 1344, 1388. of the argument, 1345, 1390, 1405. of the submission of causes, 1406. of setting aside the submission, 1407. of the duty of the clerk, 1346, 1384, 1389, 1399, 1400, 1401. INDEX. 087 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. APPEALS (continued) of motions, 1347, 1389. when filed and heard, 1347. affirmance of cases, 1348, 1388, 1391, 1393, 1394. rendering judgment on appeal bond, 1348, 1393. reversal of cases, 1349, 1391. effect of judgment in supreme court, 1350. remitting part of judgment, 1350. effect of a prior decision on a second appeal, 1351. proceedings in lower court after a cause is reversed and remanded, 1352, 1394. power of supreme court, executions therefrom, 1353, 1394. restoration of property, 1353, 1394. of restraining orders, 1408. opinions of supreme court, and rules, 1354, 1379 to 1402. rules regulating in criminal cases, 1397. when no motion for a new trial need be made in lower court, 1355. lien of the judgment of the supreme court, 1356. procedendo, form and requisites of, 1357, 1393. decrees in the supreme court, 1357, 1393, 1394. of withdrawing papers from the files, 1357, 1400. when causes will be tried de novo, 1358. regulations as to method of trial, 1359. what must appear of record to warrant a trial de novo, 13GO. the judge's certificate, its requisites, when it must be filed, 1361. the clerk's certificate, 1362. hearing and determination of appeals in equitable actions, 1363. questions as to the admissibility of evidence on trial de novo, 1364. when the case will be remanded, 1365. of the decree in a case tried de novo, 1366, 1393. proceedings in lower court in an equitable action after it is re- manded, 1367. questions not raised in lower court, not considered on appeal, 1368. presumptions of regularity of proceedings of the court below, 1369, 1370. what is error without prejudice, 1371. when rulings upon a demurrer, or with reference to pleadings will be without prejudice, 1372. error without prejudice in ruling upon evidence, 1373. error without prejudice in giving of instructions, 1374. discretion of the lower court, 1375. petition for re-hearing, requisites of, 1376, 1395. service of, 1376, 1377. argument on same, 1377, 1395. action of the court on petition for rehearing, 1378, 1395. APPEARANCE of defendant to suit when must be made, 172, 253, 256. mode of, 253. effect of, 253. default without notice will not be cured by moving to set it aside, 253. unauthorized may be ratified, 253. members of general assembly need not appear during its sessions, 255. no one compelled to appear on certain holidays, 255. failing to make answer, allegations of petition deemed true, 256. acts of defendant after appearance, 256, 257. trial jurors when, 497. bond for of defendant in injunction case, 1090. 688 INDEX. Volume I, Sections 1 to 770; Volume II, Se 3 771 to 1420. APPEARANCE (continued) of defendant in forcible entry and detainer case, 1417. See Supreme Court; see District Court. APPEARANCE DOCKET memorandum of filing petition must be made in, 252. APPELLANT See Appeal. APPELLEE See Appeal. APPLICATION for new trial, when must be made, 622. when supported by affidavits, 623. when without affidavits, 624. for security for costs; see Costs. for appointment of receiver, 1236. for order on clerk to certify record, 1327. form of, 1327. APPOINTMENT of referees in partition, 1190. form of, 1190. of referee in partition to ascertain and report incumbrances, 1188. of receiver, 1233 to 1237. form of, 1243. of guardians ad litem, 82, 83, 1185. of referees to try causes, 581. form of, 581. of trustees in proceedings to dissolve corporations, 1230. of appraisers in attachment cases, 741. of referees to settle homestead, on execution, 1063, 1034. of appraisers by sheriff on execution, 1294. of deputy clerk of the district court, 43. APPORTIONMENT- of costs, when should be made, 703. APPRAISERS form of notice to choose in replevin cases, 904. in attachment cases, 741. form of oath of, 741. in case of sale of property on execution, 1291. form of appointment, 1294. form of oath of, 1294. form of appraisement, 1294. form of notice to choose, 1294. APPRAISEMENT form of in replevin, 904. form of oath to, 904. of attached property, 741. of personal property on execution, 1294. See Appraisers. APPROVAL of bonds and sureties, forms of, 739, 740, 741, 1105, 1243. of conveyances made by a commissioner, 694. ARBITRATION what may be submitted, 912, 913. when the submission may be made, 912. requisites of, 913. form of, 913. form of acknowledgment to, 913. of the award, 915. INDEX. G89 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. ARBITRATION (continued) form of, 915. proceedings on an award in court, 916. cause may be re-committed, 916. may be set aside, when, 916. of bonds to abide award, 917. form of, 917. common law submissions and awards, 918. action on the award or bond, 919. form of petition on award, 919. See Arbitrators. ARBITRATORS powers of, 914. form of notice of hearing by, 914. See Arbitration. ARGUMENT of demurrer, 275. absence of judge during, 507. of questions of law, 527. of cause, order of, 535, 537. limiting to court, 537. misconduct of attorneys in, 538. on appeal in supreme court, 1345, 1390. must be printed and served, 1345. limitation of. 1345, 1390, 1405. when oral permitted, 1345, 1390, 1405. ARREST of defendant in habeas corpus proceedings, 1037 to 1045. of defendant in auxiliary proceedings, 842. ARREST OF JUDGMENT what is ground for, 264. ASSAULT form of petition for damages by, 250. ASSESSMENT of damages by jury, 571. generally, 655. in cases of defaults, 654. error in, ground for new trial, 613. ASSIGNABLE what is, 56, 60. ASSIGNEE may sue in his own name, 54, 59, 60, 68. defenses against, 56. may sue on verbal assignment, 58. may redeem, 1266. for the benefit of creditors, 929 to 941. ASSIGNMENT no particular form required, 57. of verbal assignments, 58. of written assignments, 59. for benefit of creditors, assignee may sue, 68. of foreign judgment, effect of, 416. of judgment may be set aside by court, 646. to junior incumbrancers, when made, 1151. of right to redeem, 1266. See Assignment of Errors. Vol. II. 44. 690 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. ASSIGNMENT OF ERRORS when necessary, 1341, 1388. sufficiency of, 1342, 1388. service and filing of, 1343, 1388. form of, 1344, 1388. ASSIGNMENT FOR BENEFIT OF CREDITORS valid as general, 923. valid as partial, 924. assignments embraced in several instruments, 925. defective assignments, 926. of insolvency, 927. of assignments of partners, 928. of the inventory, 929. property passed by, 930. rights of assignee, 931. assignee's duty, 932. of the notice, 933. of filing claims, 934. claims filed after the three months, 935. of the assignee's report, 936. of contesting claims, 937. of priority of taxes, 938. preferred claims, 939. dividends, 940. of settlement, 941. sale of the property, 942. removal of assignee, 943. death or misconduct of the assignee, 944. ASSOCIATIONS Unincorporated, how may sue, 64, 68. ATTACHMENT claim on bond given for, is assignable, 56. defendants, in action for specific property taken on landlord's attachment, 97. venue in action, aided by, 102. amendments in cases of, 343, 723. when it will issue, 712. proceedings in are auxiliary to main case, 713. when will issue on Sunday, 714. requisites of the petition asking an, 715. causes for, 715. petition must state amount due, 716. causes must be stated in conjunctive form, 715. form of petition in, 716. proceedings when demand is founded on a tort, 717. allowance by judge of property to be attached, 717. form of order allowing in action on tort, 717. when action is held to be on contract, 718. held to be based on tort, 719. when will issue for debts not due, 720. pleadings and proceedings in such cases, 721. petition must be verified, 722. by whom may be, 722. law to be liberally construed, 723. when writ will be quashed, 724. when attachment dissolved. 724. form of motion to discharge, 724. form of affidavit of exemption of property, 724. INDEX. G91 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. ATTACHMENT (continued) bond, requisites of, 725. when further security required, 725, 726. form of bond, 725. qualification of sureties on, 727. form of justification by sureties, 727. form of approval of bond and sureties, 727. writ of, when it will issue, 728. form of, 728. may run into different counties, 729. duty of officer under, 730. levy, requisites of to be valid, 731. of attaching stock, etc., 732. of the giving of notice, 733. of lands, 734. partnership property, how levied on, 735. when a receiver may be appointed, 735. examination of the defendant, 736. lien of the, 737. priority of, 738. as between attaching creditors, 738. as against mortgagees, 738. release of property when indemnifying bond is not given, 739. notice of claim of ownership, form of, 739. form of oath to accompany notice, 739. form of indemnifying bond, 739. form of approval of, 739. on bond to perform judgment being given, 740. form of such bond, 740. form of approval of, 740. on giving delivery bond, 741. form of oath of appraisement, 741. appraisement of property, 741. form of delivery bond,. 741. form of approval of, 741. on motion of third party, 742. dissolution of on judgment, 742. of excessive amount by order of court, 743. abandonment of property by officer, 743. actions for damages for wrongful suing out, 744. when must be brought on the bond, 744. when may be brought independent of it, 744. on bond originally, 745. by way of counter claim, 745. form of answer and counter claim on bond, 745. damages, actual when recovered, 746. what are, 746. exemplary, what are, 748. when may be recovered, 748. nominal, what are, 749. when may be recovered, 749. attorney's fees, when recoverable, 747. court must fix, 747. special interrogatory should be submitted to jury, 747. form of, 747. when cause of accrues, 750. pleading and practice in, 751. specific attachment, when granted, 752. 692 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. ATTACHMENT (continued) terms and conditions of 753. writ in such cases, 754. discharge of property in cases of, 755. pleadings in cases of, 756. form of order allowing, 756. for debts due the State, 757. no bonds required in case of, 758. damages in case of, 759. pleadings and practice in such cases, 7CO. affidavit for attachment in case of, 760. divorce, attachments in cases of, 761, 1019. disposition of attached property, 762. sale of perishable property, 763. form of notice to defendant, 763. application of funds, surplus, etc., 764. discharge of property when judgment is for defendant, 765. expense of keeping property, 766. intervention by third party, when permitted, 767. return of officer, 768. form of, 768. effect of, 769. amending, 769. federal courts, conflict between State and, 770. for contempt; see Contempt, in habeas corpus case, 1043. form of, 1043. landlord's form of, 1104. levy of, 1105. ATTACHMENT BOND See Attachment. ATTACHED PROPERTY See Attachment; see Garnishment. ATTORNEY, COUNTY See County Attorney. ATTORNEYS AT LAW are officers of the court, 25. admission to the bar by supreme court, 22, 1402. license of, when and how revoked, 22, 25. change of venue for undue influence of, 119. acceptance of service by, presumed authorized, 173. may verify pleadings, 335. form of verification, 336. absence of, may be ground for continuance, 483. number of allowed to argue case to jury, 537. limiting argument of, 537. misconduct of in argument, 538. fees of in suits for wrongful issuance of attachment, 747. statutory provisions for admission of persons as, 920. rules of supreme court relating to admission to the bar, 921, 1402. fees in case of foreclosure of real estate mortgage, 1149. fees of in partition cases, 1205. form of affidavit for taxing fees in foreclosure cases, 1149. fees when taxed, 709, 1401, 1410. of the affidavit, 710. opportunity to pay, 711. ATTORNEY GENERAL when to prosecute actions, 67. AUCTION sheriff's sale to be at; see Sheriff's Sales. LNItEX. 69$ Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. AUTHENTICATION of depositions, 390. form of, 390. form of to record of court in Iowa for use in Iowa, 408. form of record of federal courts for use in Iowa, 408. record of courts of another State for use in Iowa, 409. of probate of a will, 418. of public record, 418. See Certificate. AUXILIARY PROCEEDINGS when an order for the examination of the debtor will be granted, 835. form of petition for order, 835. when order may be granted before return of execution, 836. form of affidavit for, 836. not available until judgment is rendered, 836. additional to remedy in equity, 836. by whom and when the orders may be granted, 837. form of, 837. examination of debtor, 838. power of court or officer on the, 839. disposal of equitable interest in lands by receiver, 840. failing to obey order, or make answer is a contempt, 841, 992. warrant for arrest, when will issue, 842. debtor may give bond, 843. effect of statute, 844. compensation of officers, 845. by equitable proceedings, when, 846. form of petition in, 847. of the answers, 848. of the lien, 849. enforcing surrender of property, 850. See Executions; see Contempts. AVERMENTS See Statement; see Allegation. AVOIDANCE See Confession and Avoidance. AWARD See Arbitration. BAILIFF in charge of trial jury, duties of, 556. form of oath of, 556. BELIEF Information and; see Pleadings; see Answer. BENEFICIAL PARTY See Real Party in Interest; see Parties. BILL See Creditor's Bill. BILL OF EXCEPTIONS when necessary, 588. none needed in an equitable action, 589. making matter of record without a bill, 589. matters made of record by statute, 590. matters of record and not of record, 591. what writings must be made part of the record by, 592. evidence taken in shorthand must be preserved by, 593. reporter's notes must be certified by him, 593. may be amended, 593. instruments of evidence must be incorporated in or properly identified, 594. what is a sufficient identification. 594. of skeleton bills, sufficiency of, 595. 694 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 77) to 14zt). BILL OF EXCEPTIONS (continued) must be certified by judge, 596. must be filed within time required, 596, 599. requisites of a, 597. of signing, 598. how obtained when judge refuses to sign, 598. time of filing, 599. judge may make and file a, 599. presumptions with reference to, 599. can not be contradicted, 600. testimony of witness in can not be used on a suDSwjwent trial to impeach him, 600. exceptions to instructions, how and when taken, 601. manner of taking to instructions, 601. exceptions must go to a material point, 602. when they will be waived, 603. exceptions to ruling on demurrer or motion in equity case must be taken, 603. form of the bill, 604. See Exceptions; see Appeals. BILLS AND NOTES assignee of may sue, 59. requisites of petition on, 231. form of petition on notes, 250. form of petition on note against maker and indorser, 250. form of petition on note payable in property, 250. form petition by surviving partner on note, 250. form of petition by indorser who has paid note, 250. BILL OP PARTICULARS See Copy. BILL OF REVIEW not authorized by statute, 1377. BILL OF SALE form of by sheriff to purchaser on foreclosure of chattel mort- gage, 979. BONA FIDE PURCHASER See Sheriff's Sale; see Appeals. BONDS action on, by whom brought, 66. action on, for breach of condition; what petition must state, 241. must be averred that damages are unpaid, 241. amendment of, 355. form of, to abide order of court in case of service by publica- tion, 659. for security for costs, 698. form of, 698. See Indemnifying Bond. to perform judgment, in attachment cases, 740. form of, 740. form of approval of, 740. See Delivery Bond, stay; see Executions, when judgment debtor may give in proceedings auxiliary to execution, 843. for payment of rent, in an action of right, 858. form of, 858. action on, of public officers, 870 to 874. in action of replevin, 901. form of, 901. INDEX. G95 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. BONDS (continued) form of to abide award of arbitrators, 917. injunction, requisites of, 1084. form of, 1084. for appearance in injunction cases, form of, 1090. indemnifying in case of landlord's attachment, 1105. form of, 1105. form of approval of, 1105. form of to discharge lien of sub-contractor, 1141. of referees In partition, when sale is made, 1198. form of, 1198. of receiver, 1243. form of, 1243. form of approval of, 1243. supersedeas, 1324, 1387. form of, 1324, 1387. attachment bond; see Attachment, of defendant in auxiliary proceedings, 843. BOOKS AND PAPERS See Books of Account; see Evidence, production of, how compelled, 421, 422. petition for order for production of, 423. form of, 423. of the rule, 424. answer to the rule, 425. effect of failure to obey the rule, 426. using them in evidence, 427. notice to produce, 428. form of, 428. historical, scientific, etc., may be introduced in evidence, 417. referring to by a "witness, 448. explaining by witness, 449. BOOKS OF ACCOUNT when admitted in evidence, 442 to 451. BOOKS OF SCIENCE admitted in evidence, 417. BREACHES of covenant, how pleaded, 215. of warranty, how pleaded, 215. form of answer pleading, 313. of contracts, how pleaded, 241. of conditions of a bond, how pleaded, 241. See Attachment. BREACH OF PROMISE OF MARRIAGE form of petition, 250. BRIEFS See Arguments; see Supreme Court. BUILDINGS See Mechanics' Liens and Claims. BURDEN OF PROOF as to non-residence, 157. party having, has opening and closing argument, 502. how determined, 536. review of question of, in supreme court, 539. CALENDAR to be arranged and kept by clerk of district court, 475. to furnish court and bar with printed copies, 475. garnishment cases to be placed on, 791. of causes in supreme court to be printed, 1346. 696 IXDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. CANCELATION of real estate contracts, 1157. CAPACITY representative, when pleaded, denial of, 290. how pleaded, 240. See Pleading; see Petition; see Answer. CAPTION See Petition; see Answer. to depositions taken on notice, 381. taken on commission, 382. taken on agreement, 383. to records in supreme court, form of, 644. in district court, 644. form of, 644. CARLISLE TABLES when admissible in evidence, 417. CASTING LOTS for verdict by jury, vitiates it, 608. CASUALTY judgment vacated for unavoidable, 1214. CATTLE See Stock. CAUSES arrangement of by clerk on calendar, 475, 1384, 1403. submission of in supreme court, 1406. setting aside submission of, 1407. when advanced, 1385, 1404. docketing of in supreme court, 1384. criminal, rules relating to, 1397. when triable, 473 to 476. order of trial of, 474, 475. continuance of, how obtained, 485, 486. forms of motion for, 489. forms of affidavit for, 489. as to defendants not served, 254. of challenge to jurors; see Challenge; see Continuance; see Appeals; see Supreme Court. CAUSES OF ACTION definition of, 193. assignable, 55, 56. when may be joined, 194, 197, 193. when can not be joined, 195, 19y. what is entire cause of action, 196. striking out, 200. form of motion to, 200. when misjoinder of waived, 201. when separate petitions may be filed, 202. of consolidation of, 203. how stated, 217 to 241, 244. each must be stated in a separate counjt, 248. how stated in an equitable action, 251. when accrues on attachment bond, 750. See Limitation of Actions. CAVEAT EMPTOR See Sheriff's Sale. CERTIFICATE to deposition taken on notice, 386. to deposition taken on commission, 387. , to deposition taken on agreement, 388. INDEX. G97 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. CERTIFICATE (continued) of officer as to public record received in evidence when, 405. of justice of the peace as evidence, 410. of officer of foreign country as to legal custodian of seal of government, etc., 411. of certificates of notaries public as evidence, 419. of records, to admit to evidence, 438. of sale of sheriff, 1250. form of, 1250. on appeal to supreme court judge as to question of law, 22, 1318. when must be made, 1319. clerk to evidence, or to record, 1329, 1327. form of, 1329. of judge to evidence in cases triable de novo in the supreme court, 1361. of clerk in such cases, 1362. CERTIFICATION of record of all proceedings by the trial judge and reporter, 589-590. form of reporter's certificate, 589. form of judge's certificate, 589. CERTIORARI no joinder of action with, 199. what is, 945. when the action will lie, 945. when it will not lie, 946. parties to, 947. what court may grant the writ, 948. prosecuted by ordinary proceedings, 949. requisites of the petition for the writ, 950. form of, 950. form of notice of application for writ, 950. form of the writ, 951. service and return of, 951. of the hearing, 952. of limitation of the action, 953. CHALLENGE to the panel, 491. when parties must join in, 491. to individual jurors, 492. when must be exercised, 492. causes of, 493. peremptory, number of, 492. trial of, 494. talesmen as jurors, 495. exemption from jury service, not ground for, 496. CHANGE of homestead, 1061. CHANGE OF PROCEEDINGS when ordered, 15. CHANGE OF VENUE See Change of Place of Trial. CHANGE OF PLACE OF TRIAL when action is brought in wrong county, 112. when changed, costs of, time of making application, 112, 113, 115. form of application, 116. when objection waived, 115. court can not, on its own motion, change the venue of a case, 123. 698 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. CHANGE OF PLACE OF TRIAL (continued) when the county is a party, 117. form of application, 117. when judge is a party, 118. form of application, 118. on the ground of prejudice of judge, inhabitants, or undue in- fluence, 119. form of application, 119. by agreement of parties, and form of, 120. when jury can not be obtained, form of application, 121. to what actions and proceedings the law applies, 122, 123. of the number of changes, etc., 124. time of making application, and form of, 125. how made in vacation, 125. on whose application change granted, 126. of affidavits, who must make, what they must contain, 127. of amended and counter affidavits, 128. examination of affiants, 129. to what county cause will be sent, 130. when the change is perfected, 131. discretion of judge, 129, 130. when transcript must be filed, 131. costs of change, when to be paid, 132, 103. effect of change, 134. when aided by attachment, 102. of error and appeal, 135. CHANGE OF NAME district court has power to, 1003. of the petition, 1004. form of, 1004. of the order, 1005. form of, 1005. when the change takes effect, 1006. form of the notice, 1007. complete record should be made, 1007. CHARACTER of evidence, 530. CHARGE OF COURT See Instructions. CHATTEL MORTGAGE when good on after-acquired property, 954. on growing crops, and crops to be grown, 955. of mortgages of book accounts, 956. description of the property, 957. effect of retention of possession by mortgagor, etc., 958. of the effect of agreements not to record, 959. questions of priority over landlords' liens, 9GO. priority of lien generally, 961. between husband and wife, when valid, 962. when an instrument is a chattel mortgage, and when an assign- ment for the benefit of creditors, 963. agreements between mortgagor and mortgagee as to time of sale, 964. second mortgages valid, 965. protection to diligent creditors, 966. actions to recover property mortgaged, 967. interest of mortgagor before sale, 968. of bis interest after sale, 969. INDEX. 699 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. CHATTEL MORTGAGE (continued) of the mortgagee's interest, 970. when valid against existing creditors, 972. of waiver of the lien and of estoppel, 973. enforcement of foreign mortgages, 974. foreclosure by notice and sale, 975. form of notice, 976. service of notice, 977. form of affidavit of posting, 977. parties to the proceedings, 978. of the sale, 979. form of bill of sale, 979. perpetuating evidence of the sale, 980. form of affidavit of sheriff conducting sale, 980. validity of the sale, 981. power of sale, 982. of the remedy, 983. of injunction and transfer to the district court, 984. proceedings in such court, 985. of levies on mortgaged personal property, 986. of equitable mortgages, 971. of the sale of chattel mortgage property which has been pledged as collateral, 987. CHIEF JUSTICE OF SUPREME COURT See Supreme Court. when to fix terms of district court, 24, 1380. CHILDREN See Infants; see Divorce, Alimony and Annulling Mar- riages; see Habeas Corpus. CHOSES IN ACTION are assignable, 56, 60. how levied on; see Attachment; see Garnishee; see Execu- tions. CIRCUIT COURT abolished, 23. CITIES AND TOWNS must sue in corporate name, 69. CIVIL ACTION See Actions. CIVIL REMEDY See Remedies. right of, not merged in a public offense, 96. does not abate by death or transfer of interest, 10, 94, 96. CLAIMS of sub-contractors of public buildings and improvements, 1 manner of making, 1119. adjudication of, 1120. release of, 1120. filing prevented, how, 1120. of laborers and servants, when preferred, 1245. filing of with an assignee, 934, 935. contesting of, 937. priority of, 938, 939. CLERK OF SUPREME COURT election and term of, 19. duties of, 19, 20, 1384. duty of, as to appeals, 1346, 1384. to arrange causes for hearing, 1346, 1384. abstracts to be filed with, 1333, 1386. to distribute abstracts and briefs, 1333, 1346, 1399. to tax costs of printing, 1333, 1401. 700 IMM'.X. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. CLERK OF SUPREME COURT (continued) when and how to docket causes, 1346, 1384. to print and distribute calendars, 1346, 1384. CLERK OF DISTRICT COURT election and term of, 25. duty of, 25, 27, 28, 31, 42, 44, 53. compensation of, 42. of deputy clerk, 43. of records required to be kept, 44. of matters constituting the record. 45. matters not part of the record, 46. of the impeachment and correction of the record, 47. of nunc pro tune entries, 48. of lost records, 49. of record entry of judgments, 50. construction of records of, 51. correcting record after appeal, 52. of filing pleadings, 53. to make transcript in cases of change of venue, 1ZJ1. duty of, with reference to judgments, 642. duty of, with reference to executions, 796. duty of, with reference to mechanic's liens, 1131. duty of, with reference to foreclosure of real estate mortgages, 1155. See Vacation of Judgments. to file cross-interrogatories, when, 376. to issue commission to take depositions, 377. to file depositions and give notice thereof, 394. 31'5. must arrange causes for trial on calendar, 475. when must assess the amount of recovery, 654. must be served with notice of appeal. 1322. must send up original paper, when. 1332. must certify records on appeal, 1329, 1362. See Judgment. COGNOVIT See Confession of Judgment. COLLATERAL SECURITY holder of paper for, may sue it, 55. when mechanic's lien not allowed because of, 1123. chattel mortgaged property, how sold, 987. CO-MAKER or surety, when may plead by way of counter claim, 304. CO-PARTIES part of may appeal, 1326. See Appeals. COMMENCEMENT OF ACTION See Original Notice; see Petition; see Change of Place of Trial; see Limitation of Actions; see Ac- tions; see Joinder of Actions; see Venue. what deemed such, 167 to 170. 187 to 190. form of, in petition, 218 to 222. COMMISSION-' deposition taken on, 372. notice of suing out, 374. service of. 375. form and requisites of. 375. interrogatories annexed to. 375. cross-interrogatories to, 376. to whom directed, 377. INDEX. 70 1 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. COMMISSION (continued) how returned, 391. to referees in partition, form of, 1190. COMMISSIONER who may be, to take depositions, 373. power to enforce attendance of witnesses, 380. form of certificate to depositions taken on notice, 386. form of certificate to depositions taken on commission, 387. form of certificate to depositions taken on agreement, 3btf. conveyance by, when made, and what to contain, 692. form of, 694. effect of conveyance by, 693. approval of conveyance by, 693. COMMITMENT for contempt, form of warrant for, 998. in habeas corpus cases, 1044. form of warrant for, 1044. in injunction case, form of, 1090. COMMON CARRIER See Railroads; see Venue. COMMON LAW submissions and awards, action on, 918. COMPENSATION of officers and witnesses in proceedings auxiliary to execution, 845. of receivers, 1246. of clerk of district court, 42. COMPETENCY of witnesses generally, 512. of defendants in criminal cases, 513. of witnesses as to personal transactions and communications, 515-516. of evidence; see Evidence. COMPLETE remedy at law, when not, 8. COMPLETE RECORD must be made in partition cases, 1207. must be made when name is changed, 1007. COMPROMISE offer to, by allowing judgment, 673. form of offer, 673. form of acceptance of offer, 673. form of affidavit that notice of acceptance was delivered, 673. COMPUTATION OF TIME of redemption, 1258. See Time. CONCLUSIONS evidence of not admissible, 532. CONCLUSIONS OF LAW must not be pleaded. 210. CONCURRENT JURISDICTION See Jurisdiction; see District Court; see Remedies; see Actions. district, superior and justice's court have in actions of forcible entry and detainer, 1412. CONDITIONS precedent, performance of, how pleaded, 239. 702 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. CONDITIONS (continued) breaches of in bonds, how pleaded, 241. new trial on, 626. CONDITIONAL offer to confess judgment, 674. CONDITIONAL JUDGMENT against garnishee, 788, 789. CONDONATION in cases of divorce, 1015. CONDUCT OF JURY See Jury. CONDUCTING TRIAL BY REFEREES See Referees; see Refer- ence. CONFESS offer to, before action is brought, 671. after action is brought, 672. CONFESSION AND AVOIDANCE See Answer; see Pleading. CONFESSION OF JUDGMENT when may be entered, 665. by a partner when void, 666. matters which will not avoid, 667. appeals from, 668. form of statement for, 669. form of judgment on, 670. CONFIDENTIAL COMMUNICATIONS what are, not admissible in evidence, 509. CONFLICT OF EVIDENCE See Appeals. CONFLICT BETWEEN COURTS State and federal, 770. CONSANGUINITY of judge to party, when it disqualifies, 34. when ground for change of venue, 118. CONSENT See Change of Place of Trial; see Confession of Judg- ment; see Reference; see Referee. CONSOLIDATION of actions, 203. of actions by agreement, 203. CONSTRUCTIVE NOTICE See Notice; see Lis Pendens; see Action of Right; see Redemption. CONSTRUCTION of records of clerk of district court, 51. actions against construction companies, venue of, 106 108. of statutes, 136. of pleadings, 207. of amendments, 352. of instructions, 550. of records, 691. of rules, 1389. of attachment law, 723. of statutes relating to exemptions, 834. of statutes providing remedies against judgment debtors, 844. of former statutes relating to liability of railroads for fines, 880. CONSULS State courts no jurisdiction of, 259. INDEX. 703 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. CONTEMPT when judgment debtor in, 841. of warrant for his arrest, 842. may give bond and be discharged, 843. what acts and omissions are deemed to be contempts, 988. contempts of the general assembly, 989. in failing to answer interrogatories, 470, 990. disobedience of judgments or orders a, 584, 991. in proceedings auxiliary to execution, 841 to 843, 1)92. in equitable proceedings, 993. in violation of injunctions, 1090, 994. in habeas corpus proceedings, 995, 1043, 1050. in failing to obey a subpoana, 361, 996. acts which are not considered contempts, 997. how punished, 998. when must be served with a rule- to show cause, 998. form of the rule, 998. form of when witness is to be brought on an attachment, 998. when witness may be committed to jail, 998. record form of, in conviction for, 998. what warrant must state, 999. proceedings, how to be entitled, 1000. what is a sufficient preservation of facts on which the order was founded, 1000. judgment for, must specify extent of imprisonment, 1000. of appeal, none lies, 1001. proceedings may be reviewed by certiorari, 1001. punishment for, not a bar to an indictment, 1002. officer authorized to punish for is a court within the meaning of the law, 1002. judge may punish for in vacation, 1002. pleadings, evidence, etc., 1000. CONTESTING ELECTION judgments in case of, 679. CONTINGENT INTERESTS See Levy; see Execution; see Chattel Mortgages. CONTINUANCE defendant entitled to when notice has not been timely, 254. when granted on filing of amendments to pleadings, 350. when granted generally, 479. effect of asking time to make application for, 480. on the ground of absence of witnesses, 481. on the ground of absence of a party, 482. on the ground of absence or sickness of attorney, 483. when the motion must be filed, 485. amendment of showing for, 486. objections to application for, 487. at whose costs, 488. decision of the motion, 484. form of motion, 489. form of affidavit, 489. not entitled to in action of forcible entry and detainer, in a certain case, 1418. practice on, 490. Of business in court when judge fails to appear, 27. on final adjournment, 24. iO-i INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. CONTRACTS See Limitation of Actions, actions on written, 233. statute of frauds, effect of on, 452 to 459. written, homestead may be sold on, 1054. for furnishing materials, labor, etc, 1125. made with the husband, lien claimed en the wife's property, 1126. pleading breach of, 241. of the cancelation of real estate, 1157. CONTRACTOR Action on bonds of, 1143. See Mechanics' Liens and Claims. CONTRADICTORY DEFENSES may be pleaded, 300. CONTRADICTORY STATEMENTS See Impeachment; see Witnesses. CONTRIBUTION See Summary Proceedings; see Judgments; see Real Estate Mortgages. CONTROVERSY submission of without action, 675. pending action, 676. form of agreement of parties to, 677. CONVEYANCE of claim pending action, effect of, 94. by a commissioner, when made, 692. what to contain, 692. effect of, 693. approval of in vacation, 694. form of by a commissioner, 694. approval of by court, 694. of the homestead, 1056. in partition, 1202. form of, 1202. effect of, 1203. how pleaded, 241. CONVERSION action for against whom, 88; see Chattel Mortgages. CONVICTION See Contempts. COPY of maps when admitted in evidence, 406. of motion for continuance or of objections need not be served on the adverse party, 488. when not attached to pleading, ground of demurrer, 233, 270. of account sued on, must be set out, 234. See Pleadings; see Petition; see Answer; see Rules of Prac- tice; see Evidence. CORONER when may act as sheriff, 808. CORPORATIONS must sue in corporate name, 69. manner of service of notice on agent of, 175, 176. manner of service on municipal, 177. appointment of receivers for, 1241. venue in actions against. 105 to 108. See Venue; see Railways; see Municipal Corporations COSTS of attending suit in wrong county, 115. INDEX. 705 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. COSTS (continued) defendant unreasonably defending to pay, 168. fees for serving original notice not taxed to one not an officer, 172. taxed to party pleading redundant matter, 242. of taking deposition paid in first instance by party procuring it to be taken, 401. in cases of continuance, 488. of new trial, 627. when security for may be required, 695. when the application must be mad<* 696. form of application for security for, 697. of affidavit accompanying motion, 697. counter affidavit, 697. of the bond for, 698. form of, 698. of motion for additional security, 698. attorneys and officers of court can not become sureties on bond for, 698. failure to give bond, effect of, 699. what costs are taxable, 700. when should be taxed to plaintiff, 701. should be taxed to defendant, 702. when should be apportioned, 703. discretion of court as to taxing, 704. presumption that court acted correctly in taxing, 704. uncollected, when may be recovered from successful party, 705. assignee liable for, 705. right to recover depends on recovery of judgment, 706. of re-taxation of, 707. when clerk must pay costs of re- taxation, 707. on appeals, duty of clerk, 708. attorney's fees, when taxed, 709, 1410. division of fee, affidavit, 710. opportunity to pay, 711. in supreme court, 1401, 1410. when garnishee may demand his fees and mileage, 777. when garnishee will be charged with, 781. defendant disclaiming in an action of right to recover, when, 866. in partition cases, paid by whom, 1205. in actions of forcible entry and detainer, 1420. See Appeals. CO-SURETY may plead counter claim, when, 304. COUNTER CLAIM when may be pleaded, though barred, 163, 305. pleading new matter constituting, 301. whit constitutes, 302. when new party to brought in, 303. tailnre to plead no bar to cause of, 306. equitable, may be pleaded in law actions, 309. stnted in separate counts, 310. of demurrer to, 315. judgment for excess of, 636. conclnsiveness of judgment on, 649. on attachment bond, 744, 745. form of petition in, 745. Vol. II. 45. 706 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. COUNTERMAND form of, 1325, 1387. COUNTS each cause of action stated in a separate, 248. each must be sufficient in itself, 248. must be consecutively numbered, 248. when defendants may be joined in same, 248. same cause of action may be stated in different, 249. demurrer must specify which it is directed to, 264. each counter claim, or cross-defense, to be stated in a separate, 310. may be one prayer for judgment on several, 312. COUNTY may sue on bond given to it, 66. must sue in its corporate name, 69. of defendant's residence when suits brought in, 109, 110. venue changed to what, 130. manner of service of original notice on, 178. to what one fines belong, 877. See Venue; see Change of Place of Trial. COUNTY ATTORNEY may bring action to enjoin nuisances, 1072, 1073. notice must be given of hearing of habeas corpus case, 1036. form of, 1036. COUNTY SEAT courts to be held at, 24. COUNTY TREASURER limitation of action on bond of, 144. COURT HOUSE sheriff to procure, 26. COURTS See Supreme Court; District Court; Superior Courts; Clerk of District Court. have power to administer oaths, 34, 922. to be held at places provided by law, 24. by consent may be held at other places, 30, 34. rules of, 29, 1379 to 1402, 1403 to 1411. take judicial notice of what, 226. duty of relating to pleadings, 230. See Terms of Court; Adjournments; Rules. sheriff to procure place to hold, 26. when to be held, 18, 23, 24, 34. records of, 31. to be signed, 31. jurisdiction of raised by demurrer, 259. how records of proved, 408, 409, 411. may make order allowing the examination of witnesses, 461. discretion of in introduction of evidence, 503. 520. may give instructions on their own motion, 541. See Instructions. manner of trial to, 576. when finding of facts necessary on trial by, 575. manner of trial of equitable actions, 577. See Trial; see Appeals; see Jurisdiction. discretion of court in trial of equity causes, 577. may refer causes, when, 580, 581. form of order of reference, 581. action of on report of referee, 586. INDEX. 707 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. COURTS (continued) new trial granted for irregularities in proceedings of, 606. judgments of superior, how made liens, 688. See Judgments; see U. S. Courts. law applicable to when acting as a jury, 689. discretion as to taxing costs, 704. conflict between, 770. power of on hearing in auxiliary proceedings, 839. power of relating to injunctions, 1077 to 1079. power of in mandamus cases, 1117. enforcing mechanic's lien in, 1132. presumptions of regularity of proceedings of, 32, 688, 704, 1208, 1369, 1370. power of court in quo warranto proceedings, 1231. COVENANTS breaches of, how pleaded, 215. COVERTURE See Husband and Wife; see Wife; see Mechanics' Liens. CREDITS when whole account must be made evidence, 447. CREDITOR redemption by, 1252. who is a creditor under the statute, 1253. redeeming fvom each other, 1257. See Redemption. CREDITOR'S BILL See Auxiliary Proceedings. CRIMINATE evidence tending to, 510. CROPS GROWING regarding levy on, 809. chattel mortgage on; see Chattel Mortgages. damage to by fire; see Railroads. CROSS-DEMAND See Counter Claim. CROSS-EXAMINATION of witness making affidavit, 433. on taking deposition, 376. on perpetuating testimony, 462. of witnesses on trial of a case, 523. CROSS-INTERROGATORIES on perpetuating testimony, 462. to commission to take depositions, 376. form of, 376. CROSS-PETITION when may be filed, 307. in actions for divorce, when may be filed, 1017. CUSTODY OF THE LAW See Receivers. DAMAGES form of petition in action for, by assault, 250. new trial for error In assessing, 613. assessment of in cases of default, 654. of generally, 655. actions for wrongfully suing out attachments; see Attachment. actual, what are in attachment suits, 746. exemplary, what are, 748. in attachment suits, 748. 70S INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. DAMAGES (continued) nominal, what are, 749. in attachment cases, 749. in attachment cases for debts due the State, 759. measure of in actions against railroads for setting out fire, 885. double for killing stock, act for constitutional, 891. actions for by purchaser of real estate at sheriff's sale, 1270. See Action of Right; see Replevin and Detinue. in case of nuisance, 1168. in case of trespass, 1303, 1307. in case of waste, 1309, 1310. See Petition; see Answer; see Pleading. DAMS how partitioned, 1179. DATE of judgment liens; see Judgments. DAYS See Time; see Computation of Time. DEATH does not affect actions, 96. judgment vacated when rendered after, 1213. no ground for dismissing an appeal, 1347. of sheriff, who to execute process in his hands, 808. See Actions. DEBTS contract agreeing to answer for debt of another, 455. not due, attachment for, 720, 721. due the State; see Attachment. due by negotiable papers, how garnished, 790. due to defendant, may be paid by garnishee to sheriff, 782. See Garnishment. DECAYING PROPERTY sale of on attachment, 763. See Attachment. DECEASED PERSON writings of, when admitted in evidence, 439. DECISIONS AND OPINIONS of the Supreme Court, 1391. DECREE setting aside and modifying in divorce cases, 1027. in supreme court, how prepared and filed, 1357, 1393. in cases tried de novo, 1366. See Foreclosure of Mortgages. DEEDS when evidence, 437. when certified copies of record of admissible in evidence, 438. when executed by a commissioner appointed by the court, 692. form of, approval of, 693. 694. of sheriff for lands sold on execution, 1267. of referees in partition, 1202. DEFAULT judgment by when rendered, 652. disposition of answer before, 653. assessment of damages in cases of, 654. defendant may appear and cross-examine witnesses, 654. forms of judgment in cases of, 657. INDEX. 709 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. DEFAULT (continued) setting aside a, 660. discretion of court in, 660. in the supreme court, 661. re-trial where judgment rendered by, on notice by publication, 662. garnishee in must be served with notice to show cause why execu- tion should not issue against him, 780. may move to set aside, 780. form of motion for, 780. form of showing to set aside, 780. presumption in favor of judgments by, 658. when service of notice is made by publication, 659. bond may be required, 659. must move to set aside before appealing, 662. provisions for re-trial on service by publication not applicable to divorce cases, 662. title of purchases of land sold on judgment is not effected by re- trial, 663. personal judgment can not be rendered when, 664. DEFECT OF PARTIES See Parties; see Demurrer. DEFENDANT See Actions; see Parties. competency of as witness in criminal case, 513. when costs should be taxed to, 702. examination of, in attachment proceedings, 736. notice to of examination of perishable property, form of, 7C3. who made in actions to enforce mechanics' liens, 1133. redemption made by, 1251. surviving, execution may issue against, 1274. proceedings when dead, 1276. DEFENSE by general denial, 232, 283. by partial denials, 287. by specific denials, 286. by new matter, 297. affirmative must be specially pleaded, 298. by inconsistent defenses, 300. by new matter constituting counter claim, 301, 302. joint, how pleaded, 308. must be pleaded in separate counts, 310, 322. in case of reply, 322. equitable may be pleaded when, 309. See Pleading; see Answer. DELIVERY BOND in attachment cases, 741. form of, 741. form of approval of, 741. in replevin cases, 904. form of, 904. form of approval of, 904. DEMAND for judgment in petition, 244. form of, 244. in equity cases. 245. forms of, 245. for alternative relief, 245. on money claim, only one praver needed. 246. when necessary in replevin. 906. DEMAND FOR RELIEF See Petition; see Demand. DEMURRER will not lie to wrong proceedings, 11. 710 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. DEMURRER (continued) when statute of limitations raised by, 165, 268. is a pleading, 208. when will lie generally, 258. must be interposed. 258. for formal defects abolished, 258. what it confesses, 258. must specify and number grounds of objection, 238, 271. in equity case, 258, 267. not aided by extrinsic evidence, 258. when court has no jurisdiction, 259. plaintiff has no legal capacity to sue, 261. another action pending, 262. defect of parties, 263. facts stated are insufficient, 264. lies only for defects appearing on face of the pleading, 260. will not lie for misjoinder of parties, 263. nor because prayer asks relief which facts pleaded will not ; warrant, 264. to denials, 264. must be confined to defective count, 264. generalJy, when lies, 265. will not have effect of plea of nul tiel record, 2C5. will not lie to part of a count, 2G5. effect of a demurrer, 266. in equity cases, 267. when must specify causes, 267. will not lie to single allegations, 267. may be both general and special, 267. when action barred by statute of limitations, 268. when contract sued on not in writing. 269. when copy of instrument sued on not attached, 270. effect of failing to demur, or waiving, 272. of standing on, 273. not withdrawn without leave, 274. suspends necessity for further pleading, 274. argument of, 275. decision of, 275. no joinder in necessary, 275. may be sustained to some counts and overruled as to others, 275. how judgment rendered against a party failing to plead over after, 275. forms of, 276. to evidence not provided for by statute, 277. judgment on, affirmed in supreme court is final, 278. objections which should have been raised by demurrer in lower court can not be first raised in supreme court. 278. after a demurrer to same pleading not permitted, 278. to answer, grounds of, 314. to counter claim grounds of, 315. to reply, 323. judgment on, 656. form of on to answer, 657. form of on to petition, 657. See Appeals. DENIALS not demurrable, 264. general in answer, 282. form of, 282. INDEX. 711 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. DENIALS (continued) what it puts in issue, 283. proof thereunder, 283. by guardians in answer, 284. form of, 284. of knowledge or information, 285. form of, 285. specific in answer, 286. partial in answer, 287. alternative in answer, 288. of time, place, etc., 289. in answer when judgment is pleaded, 290. of signature, 291, 292. what is sufficient, 293. form of answer denying specifically, 295. denying signature, 296. allegations of answer when deemed denied, 319. of reply deemed denied", 324. In reply, 321. See Pleading; see Answer; see Supreme Court. DEPOSITIONS when and by whom taken, 367, 371. one taking may use them or not, 367. opposing party may offer depositions in evidence, 367. may offer part of a deposition, 367. notice and interrogatories need not be on file with the clerk on the day fixed for the commission to issue, 367. requisites of the notice, 368. what is reasonable notice, 369. of service and return of the notice, 370. form of the notice, 371. service of notice by publication, 371. when taken on commission, 372. who may act as commissioner, 373. of the notice of suing out a commission, 374. of the service of notice, 375, 376. form of the notice, 375. of the form of the interrogatories, 375. form of cross-interrogatories, 376. of the form of the commission, 377. taken by agreement, 378. form of agreement, 378. presence of parties during taking of, effect of, 379. how witnesses produced and their attendance enforced, 380. subpoenaes served by whom, 380. of prisoner in penitentiary, how taken, 380. form of caption to depositions taken on notice, 381. duty of officer taking, 381. Depositions taken in shorthand, 381. form of caption to, when taken on commission, 382. when taken on agreement, 383. exhibits, how identified and attached, 384. of form of commencement of cross-examination, 385. form of jurat of officer, 385. next deposition, how commenced, 385. adjournment, form of statement of, 385. manner of commencing after adjournment, 385. 712 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. DEPOSITIONS (continued) requisites and form of certificate to depositions taken on notice, 386. certificate naay be amended, 386. form of certificate when taken by a stenographer, 386. requisites and form of certificate when taken on commission, 387. form of certificate when taken on commission and parties are present, 387. requisites and form of certificate when taken on agreement, 388. instructions to be followed by officer taking depositions, 389. form of fee bill, 389. authentication of, 390. form of, 390. manner of returning, 391. when reason for taking must appear in, 392. opening the, 393. can not be withdrawn, 394. when may be used in another cause, 394. in such case they must be filed therein, or leave procured to use them, 394. notice of the filing of, 395. form of the notice, 395. how served, 395. unimportant deviations will not exclude, 396. exceptions to, how taken, and when before trial, 397. exceptions to on the ground of incompetency or irrelevancy, 3'J8. used to impeach a witness, 399. when taken on trial before a justice of the peace, 403. ^when will be suppressed, 368, 369, 373, 379, 396, 397, 398. 'exceptions to, must be decided before trial, 401. when waived, 401. costs of taking, paid by whom, 401. to perpetuate testimony, who may take, 460. approval of, 464. use of, 464. taking them conditionally, 514. See Appeals. DEPOT GROUNDS of railroads, when may be fenced, 889. DEPUTY sheriff may act for his principal, 768. may take answer of garnishee, 772. DESCRIPTION of property in chattel mortgages, 957. See Pleading; see Unknown Defendants; see Replevin and Detinue. DESERTION a ground of divorce, 1011. of family by husband, wife may defend actions, 71. DETENTION wrongful, alleged in replevin, 900. DETINUE See Replevin and Detinue. DEVISE of homestead, 1068. DEVISEE judgments against, 680. DILIGENCE See New Trial; soc Continuance. INDEX. 713 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. DILIGENT creditors protected, 966. DISABILITY of piamtiff extends statute of limitations, 155. of judge, ground for change of venue, lid. form of application, 118. DISCHARGE of judgment, 643. of attachment; see Attachment. of mechanic's lien, 1141. bond to, form of, 1141. of juror for sickness, 496. of jury when cause is continued, 553. of jury in other cases, 558. DISCLAIMER defendant in action of right, entering recovers his costs, 866. form of in action of partition, 1186. DISCONTINUANCE See Dismissal. DISCHARGE OF ATTACHMENT See Attachment. DISCOVERY bill of, when may be filed, 846. form of, 847. proceeding in, 847 to 850. See Auxiliary Proceedings. DISCRETION of court in granting or refusing change of venue, 129. of in taxing costs, 704. of courts not controlled by mandamus, 1109. of lower court reviewed on appeal, 13 1 5. See Courts. DISMISSAL error in proceedings will not work, 10. judgment of, 647, 648. forms of entry of, 648. in vacation, 650. of action when no bar, 651. DISOBEDIENCE OF PROCESS See Contempts. DISQUALIFICATION OF JUDGES when, 34. DISSENTING OPINIONS of supreme judges to be written and filed with clerk, 1354, 1391. DISSOLUTION of attachment; see Attachment. of injunction; see Injunction. DISTRICTS JUDICIAL See Judicial Districts. DISTRICT ATTORNEY See County Attorney. DISTRICT COURT- Us rules, 29. its organization, 23. election and term of judges, 23. judges can not sit together, 23. fix terms of court, 24. may be assigned by chief justice of supreme rnurt, 24. number of may be increased or diminished, 23. may order special terms, when, 24. 714 IXDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. DISTRICT COURT (continued) may order sheriff to procure place to hold court, 23. failing to attend, effect of, 27. may adjourn court by written order or by telegram, 28. may provide rules, 29. may decide cases in vacation, when, 30. when may receive verdict after time for court to begin in another county, 30. amending record, 31. can not practice law, 34. disqualified from acting, when, 34. can not delegate powers, 34. may administer oaths, 34. solemnize marriages, 34. suspend clerk of sheriff from office, 31. approve bonds, when, 34. may appoint receivers, 34. may take acknowledgments, 34. jurisdiction of, 33, 34, 1381, 1412. presumption of regularity of proceedings of, 32. discretion of in introduction of evidence, 520. See Records, proceedings in case where foreclosure of chattel mortgage is transferred to district court, 985. may enforce mechanics' liens, 1132. certifying record for bill of exceptions, 589. See Courts; see Jurisdiction; see dent ot the District Court. DISTRICT JUDGE election and term of office, 23. to fix terms of court, 24. may order special terms, when, 24. failing to attend, effect of, 27. See District Courts; see Courts. DISTRIBUTION OF PROCEEDS OF ATTACHMENT SALE See At- tachments. DIVIDENDS by an assignee, 940. DIVISION of supreme court into two sections, 21. of answer, 310. each defense stated in a separate, 310. of remedies, 1. of opinions of judges of the supreme court, 21, 1391. See Counts; see Pleadings; see Answer; see Appeals. DIVORCE, ALIMONY AND ANNULLING MARRIAGES venue in actions for, 110. original notice need not claim alimony, 168. no cause of action joined with, except for aliraony, 1SJD. of the jurisdiction and trial, 1008. can not be granted by consent of parties, 1008. grounds for, generally, 1009. for adultery, 1010. for desertion, 1011. for conviction for a felony, 1012. for habitual drunkenness, 1013. for inhuman treatment, 1014. of condonation and misconduct of the plaintiff, 1015. IXDEX. 715 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. DIVORCE, ALIMONY AND ANNULLING MARRIAGES (continued) of the petition, 1016. form of, 1016. for inhuman treatment must set out the facts constituting, 1016. form of allegation in case of, 1016. should be verified, 1016. effect of failing to verify, 1016. cross-petition for divorce, when may be filed, 1017. of temporary alimony, 1018. application for, how made, 1018. failure to pay, how punished, 1018. of attachment in, 1019. allowed by order of court or judge, 761, 1019. may be granted with or without bond, 1019. may be levied on homestead, 1019. attorney's fees, may be allowed in as costs, 1020. husband may be sued for, 1020. custody of children, 1021. alimony, permanent, allowed without divorce, 1022. power to grant, 1023. when allowance is proper, 1024. when specific property may be allowed, 1025. lien of the judgment in, 1026. setting aside or modifying decree, 1027. annulling marriages, causes for, 1028. of the petition, 1029. legitimacy of children, 1030. allowance of compensation, when marriages annulled, 1030. allowance of alimony in supreme court, 1409. DOCKET See Calendar; see Appeals. DOCUMENTARY EVIDENCE See Evidence. DOCUMENTS original, when sent to supreme court, 1332. DOMESTIC CORPORATION See Corporations; see Venue; See Serv- ice. DUPLICATE receipts of receiver, evidence; see Evidence. EFFECT OF PLEADING rule of construction, 207. EJECTMENT action to recover real property, a substitute for, 851. ELECTION when separate suits are brought on note and mortgage, 1146. ELECTIONS See Contesting Elections. EMPANELING A JURY See Jury. ENCUMBRANCE of homestead; see Homestead. ENTRIES See Judgment; see Evidence. EQUITABLE DEFENSES may be pleaded, when, 309. EQUITABLE COUNTER CLAIM may be pleaded in law action, 309. EQUITABLE INTERESTS in lands, how reached, 840. 716 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. EQUITY JURISDICTION courts of, will grant relief by vacating judgments, when, 1218. See Equitable Proceedings; see Equity. EQUITABLE LIENS See Equitable Mortgages. EQUITABLE MORTGAGES when recognized and enforced, 971. EQUITABLE PROCEEDINGS a civil action, when by, 2, 6. when relief not granted by, 7. when action by ordinary or equitable, 8. trial of equitable issues in law action, 13, 473. cases and issues not tried as equitable, 14. of powers of courts of equity, 9. petition in to be separated into paragraphs, 251. form of petition in, 251. demurrer in, and form of, 267. single allegations not demurrable, 267. See Trials. to subject property of judgment debtor, 843. form of petition in, 847. See Actions; see Contempts. EQUITY powers of courts of, 9. new trials in, after judgment at law, 620. when redemption may be made by suit in. 1255. See Redemption; see Remedies, Actions, Equitable Proceedings, Jurisdiction, Courts. ERROR in form of proceeding, 10, 11, 12. not affecting substantial rights disregarded, 351. when without prejudice in instructions, 552. with prejudice in instructions, 553. how cured by instructions, 554. in assessing damages by jury, new trial for, 613. of law, new trial for, 621. See Assignment of Errors; see Appeals. ESTATE particular or superior, when pleaded, 212. ESTATES OF DECEASED PERSONS See Executor and Administra- tor. ESTOPPEL when city not estopped by enclosure of street, 140. must be specially pleaded, 216, 298; see Answer. mortgagee not estopped to foreclose, when, 9(3. EVIDENCE of non-residence, 157. demurrer to, 277. not to be stated in pleading. 209, 224. what proper under denial, 283. public records, how proved. 402. of field notes and plats, 403. of original entries, how made. 404. certificates of public officers, 405. of loss of a paper, 405. INDEX. 717 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. EVIDENCE (continued) of copies of maps, etc., in surveyor general's office, 406. of duplicate receipts of receiver and register of U. S. land office, 407. of records of courts of Iowa and of federal courts, 408. of judicial records of courts of another State, 409. form of authentication of record of courts of Iowa for use in Iowa, 408. of authentication of record of federal courts for use in Iowa, 408. of authentication of records of another State for use in Iowa, 409. of certificates of justice of the peace, 410. made by justice in office, 410. of records of courts of foreign countries, 411. form of certificate by officer of foreign country having charge of its seal, etc., 411. of acts of the executive of the U. S. or of any State, 412. of the executive of any foreign government, 412. of proceedings of the legislature of any State or government, 413. of statutes, and of unwritten law, 414. presumptive evidence, 414. of ordinances of a town or city, 415. court will not take judicial notice of, 415. of the assignment of a foreign judgment, 416. of historical works, etc., 417. of Carlisle life-tables, 417. of form of authentication of probate of will, 418. of authentication of public record, 418. of certificates of notaries public, 419. prima facie evidence of what, 419. of records of marriages, 420. books and writings in possession of the adverse party, 421. compelling the production of books of a corporation, 422. petition for, 423. form of, 423. of the rule, 424. form of, 424. form of answer to, 425. effect of failure to obey the rule, 426. of using the books or papers called for in evidence, 427. of notice to produce papers, 428. form of, 428. of secondary evidence, when admitted, 429. proofs by affidavit, 430, 431. when one compelled to make, 432. of notice, 433. of cross-examination, 433. presumptive evidence, signature and seal of officer, 434. proof of publication, 435. posting notices, 435. perpetuation of, 436. deeds and private writings. 437. certified copies of records, 438. of writings of a deceased person, 439. of subscribing witnesses, 440. of handwriting. 441. evidence of experts as to handwriting, 441. books of account, how proved, 437, 442. INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. EVIDENCE (continued) what is the book of original entries, 443. charges made in the ordinary course of business, 444. when the entries must be shown to have been made, 445. entries made by third persons, 446. of credits, 447. referring to, 448. explaining accounts kept in books of another, 449. accounts which are barred, 450. when taken as true, 451. cf the statute of frauds, 452 to 459. of contracts relating to sale of personal property, 453. made in consideration of marriage, 454. wherein a person promises to answer for the debt, default, etc., of another, 455. for the creation or transfer of an interest in lands, 456. not to be performed within one year, 457. perpetuation of, 460. form of petition to, 460. of the order, 461. proceedings when personal notice can not bs given, 4G2. who may take deposition to perpetuate, 463. approval of such depositions, 464. interrogatories attached to pleadings, 465. time of answering, 466. affidavits to, 467, 469. failing to answer, effect of, 468. compelling answers to, 470. introduction of, 503. discretion of court as to order of, 503, 520. of impeachment of witnesses, 508. of privileged communications, 509. tending to criminate a witness, 510. of husband and wife, 511. of defendants in criminal cases, 513. of taking depositions conditionally, 514. exhibition of wounds to jury, 518. photographs as, 519. order of admission of, in discretion of court, 520, 521. leading questions, what are, when may be asked, 522. rebutting, confined to the issues, 524. objection to, 525. of parts of acts, declarations, etc., 526. admission of after case is closed, 528. relevancy of, 529. best evidence must be produced, 530. foundation for secondary, how laid, 530. hearsay, when admissible, 531. admissions of parties, when, 531. statements as to cause of injury, 531. opinions and conclusions, when admissible, 532. expert, when admissible, 533. qualification of experts, 534. may be introduced before final submission of cause, 561. how made part of record on appeal. 589, 593, 588. certificate of judge to, on appeal. 589. 596. See Exceptions and Bills of Exceptions, verdict not sustained by. new trial. 614. newly discovered ground for new trial, 616. INDEX. 719 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. EVIDENCE (continued) in actions against railroads for damages by fire, 884. for damages to stock, 893. in actions of replevin, 906. in cases of contempt, 1000. preservation of, 999. See Partition; see Action of Right; see Appeals. EXAMINATION of affiants on application for change of venue, 129. of witness, order for, wlien made, 461. of witnesses on a trial, 520, 521 to 523, 527, 528. See Witnesses. of defendant in attachment cases, 736. of judgment debtor; see Auxiliary Proceedings; see lleplevin. EXCEPTIONS See Bills of Exceptions. statutory, to right of joinder of actions, 199. to depositions, when and how taken, 397. to depositions for incompetency and irrelevancy, 398. when decided, 401. to instructions, when and how taken, 543. what is, 588. when sufficient, 597. when must be taken, 599. See Instructions; see Evidence. EXCESSIVE DAMAGES ground of new trial, 612. EXECUTION judgment when special is asked, 634. garnishee's showing cause against the issuance of, 780. when it may issue, 792. when issued on a judgment of Superior Court, 792. what judgments and orders are enforceable by, 793. into what counties the writ may run, 794. when issued on Sunday, 795. form of affidavit for issuance on Sunday, 795. issuance of the writ, duty of clerk, 796. requisites of the writ, 797. form of for money, 797. proceedings when writ is issued to another county, 798. form of for delivery of specific chattels, 799. on transcript of judgment from a justice, 799. when stay of allowed, 800. extent of stay, 800. of debts contracted prior to September 1, 1873, 801. stay bonds and their approval, 802. form of, 802. justification by surety on, 802. effect of after execution has been issued, 803. sureties preventing or determining the stay of, 804. sheriff's duty on receiving execution, 805. against principal and surety, how levied, 806. levy of generally, 807. when sheriff dies before return of the writ, 808. how made, 809. judgments, bank bills, etc., how leyied on, 810. proceedings by garnishment, 811. See Garnishment; see Garnishee. on mortgaged chattels, 812. 720 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. EXECUTION (continued) on partnership property, how made, 813. how writ against a municipal corporation executed, 814. debtor may pay sheriff, 816. stock interests of a corporation, how levied on, 815. effect of levy, surplus, etc., 817. indemnity bond, when may be demanded, 818. its terms and conditions, 820. form of, 820. form of approval of, 820. notice of ownership of property, 818. form of, 818. levy discharged, when, 819. application of proceeds of sale, 821. See Exemptions; see Auxiliary Proceedings, in case of replevin, 909. form of, 909. in case of foreclosure of real estate mortgage, 1150. form of, 1150. return of sheriff on, form of, 1269. form of when equity of redemption is sold, 12C9. form of statement attached to. 1269. in cases of forcible entry and detainer, 1420. form of, 1420. may issue against surviving defendants, 1274. when may be quashed, 1275. See Appeals; see Sheriff's Sale; see Appraisement; see Redemption; see Foreclosure of Mortgages; see Me- chanics' Liens and Claims; see Supreme Court. EXECUTOR FOREIGN when he can sue in this State, 63. EXECUTOR AND ADMINISTRATOR may sue in their name, 62, 220. cases in which they may sue, 62. when they can sell real estate, 62. form of caption to petition by, 220. may sue in representative capacity, 220. form of petition by one administrator against another, "59. judgment against, how rendered, 680. proceedings to subject real estate to payment of judgment against, 1291. See Foreclosure of Mortgages; see Parties; see Actions; see Sheriff's Sale; see Plaintiffs. EXEMPLARY DAMAGES what are, 748. in attachment suits, 748 EXEMPLIFICATION OF JUDGMENTS See Authentication; see Evi- dence. EXEMPTION from service as a juror, 496. causes of, 496. what property exempt from execution, 822. of personal earnings, 823. of pension money. 824. of insurance money. 825. to unmarried persons. 82*>. to head of the family, 827. when not allowed, 828. INDEX. 721 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. EXEMPTION (continued) other exemptions, 829. waiver of right of exemption, 830. securing claims of laborers, 831. depriving persons of the benefit of exemptions, 832. exchange of exempt property, 833. statute as to does not apply to other liens, 833 to be liberally construed, 834. relates to the remedy, 834. of homestead, 1051 to 1069. EXHIBITS attached to depositions, how, 384. to petition against railway company for killing stock, 887. in supreme court, return of, 1400. See Copy; see Petition; see Pleading. EXHIBITION of wounds to jury, 518. EXISTING CREDITORS when chattel mortgage valid as to, 972. EXPERTS opinions of, when admissible, 532, 533. competency of as witnesses, 533. qualifications of, 534. FACTS only to be stated in pleadings, 206, 208, 224. material facts only pleaded, 225. instructions must not be on, 546. form of finding by jury, 572. finding of by court, 575. unnecessarily stated, need not be proved, 212. See Demurrer; see Pleading. FAMILY head of, who is as to homestead, 1055. See Exemptions; see Service. FEDERAL COURTS See Conflict between Courts; see United States Courts. FEE BILL See Costs. FEES See Costs; see Attorneys at Law. FELONY conviction of a ground of divorce, 1012. FEME COVERT See Husband and Wife. FEME SOLE See Husband and Wife. FILING of pleading by the clerk, 53. petition must be filed, 252. effect of not filing by time fixed in notice, 252. not filed till memorandum is made in appearance docket, 252. demurrer, 274. answer, 279. application for continuance, 485. bills of exceptions, 599. papers in habeas corpus case, 1050. See Appeals; see Reply; see Motion; see Transcript; see Petition. of sub-contractor's claim on public buildings and improvements, 1120. 722 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. FILING (continued) of notice of appeal, 1323. of the abstract on appeal, 1338, 1386. of claims with an assignee, 934, 935. FINDING OF FACTS by the court when necessary, 574, 575. FINES AND FORFEITURES venue in actions for, 101. actions for, by whom prosecuted, 875. judgment for, by collusion, no bar, 875. petition in cases of, 876. form of, 876. to what county fines belong, 877. paying part of a fine, 878. action for recovery of fine paid, 879. may be several actions on same security, 872. FIRES setting out by railroads; see Railroads. FIXTURES when exempt from execution, 829. FORCIBLE ENTRY AND DETAINER jurisdiction of, 1412. when action lies, 1413. parties to, 62, 1414. of notice to quit, 1415. form of notice, 1415. the petition, 1416. form of, 1416. service of notice, etc., 1417. trial, 1418. when by equitable proceedings, 1418. action barred, when, 1419. the judgment, 1420. form of, 1420. FORECLOSURE OF MORTGAGES defendants in cases of, 81, 1145. venue in cases of, 99. form of original notice in action of, 170. how and where action must be brought, 1144. of election, when separate suits are brought on note and mortgage 1146. of the petition, 1147. form of, 1147. form of prayer when notes not all due, 1147. form of in case of title bond, 1147. of the judgment, 1148. form of. 1148. attorney's fees, when allowed, 1149. form of affidavit for, 1149. of the execution, 1150. form of, 1150. assignment to junior encumbrances, 1151. surplus arising from the sale, 1152. of other liens, 1153. Bale, and satisfaction of the mortgage, 1154. form of notice to mortgagee to cancel mortgage, 1154. duty of the clerk. 1155. of title bonds, 1156. INDEX. 723 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. FORECLOSURE OF MORTGAGES (continued) of cancellation of real estate contracts, 1157. pleadings, practice, etc., 1158. of redemption, 1159. priority of liens, 1160. intervening equities, 1160. indexing, 1160. release and merger, 1161. what instruments will be treated as mortgages and foreclosed, 1144. when no personal judgment can be rendered, 1148. penalty for failing to satisfy mortgage, 1154. sale for installment due, 1158. See Chattel Mortgages; see Redemption. FOREIGN judgment, form of petition on, 250. mortgages, when enforced in this State, 974. See Depositions; see Evidence. FOREMAN verdict of jury to be signed by, 565. FORFEITURE of mechanic's lien, 1134. See Fines and Forfeitures. FORMS used in taking depositions, 385. of judgments, 640, 648, 657, 672. See Actions; see Pleading, Petition, Answer, Reply. FRAUD actions for injuries on ground of, limitation of actions, 146. how pleaded, 213, 227. must be pleaded, 227. judgments vacated for, 1211; see Vacation of Judgments. FRAUDS See Statute of Frauds. FIRM land owned by, how partitioned, 1181. GARNISHEE notice of garnishment, 771. form of, 771. must take oath to make true answers, 772. form of oatlTto, 772. form of questions propounded to, 772. answers of, 772. when to appear at court, 773. f proceedings when he dies, 776. * fees and mileage of, 777. waiver by of his exemption, 778. penalty for failure to attend and answer, 779. must be served with notice to show cause why an execution should not issue against him, 780. form of notice, 780. may move to set aside default, 780. form of such motion, 780. form of showing by garnishee to set aside default, etc., 780. of his liability for costs, 781. of his exonerating himself, 782. of his liability for interest, 783. position of, and his rights generally, 784. IXDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. GARNISHEE (continued) s controverting his answer, and of trial, 785. when judgment will be rendered against, 788. of the form ot the judgment, 789. of debts due by negotiable paper, 790. collusiveness of judgments against, 791. See Garnishment. GARNISHMENT venue in proceedings of, 103. attachment by garnishment, how effected, 771. sheriff may be directed to take answers, 771. form of such direction, 771. who may be garnished, 774. who can not be garnished, 775. municipal corporations can not be, 775. controverting answer, and of trial, 785. ^ notice to the principal defendant, 783. how served, 786. showing exemption of property, 787. causes in, how docketed, 791. practice in cases of, 791. see Garnishee. receiver can not be garnished, 1247. GENERAL verdict, 568, 570. GENERAL ASSEMBLY members of need not appear to an action when, 255. contempts of, 989. GENERAL DENIAL See Answer. GENERAL RULES OF PRACTICE See Rules of Practice. GOODS form of petition for goods sold, 250. GRANTEE may foreclose title bond; see Foreclosure of Mortgages. GROUNDS OF BELIEF See Verification. GROWING CROPS respecting levying on, 809. GUARDIAN AD LITEM appointed fo defend for minor, 82. appointed to defend for insane person, 83. appointed in partition, 1185. form of order of appointment, 1185. form of answer, 1185. need not be verified, 1185. GUARDIAN may sue in his own name, 62, 72, 220. may sue in representative capacity, 220. denials in answers by, 284. form of, 284. See Infants; see Insane Person. HABEAS CORPUS no joinder of action with, 199. when the writ lies, 1031. when it does not lie, 1032. of the petition, 1033. must be sworn to, requisites of, 1033. INDEX. 725 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. HABEAS'CORPUS (continued) form of, 1033. to whom application for the writ must be made, 1034. reasons for refusal of must be stated, 1034. issuance of, 1035. form of, 1035. penalty for willfully refusing to grant, 1035. notice to the county attorney, 1036. form of, 1036. service of the writ, 1037. when officer may arrest the defendant, 1037. disobedience of the writ, 1038. penalty for disobeying it, 995, 1038. duties of the officer, 1039. of the precept, and when it will issue, 1040. form of, 1040. form of when defendant is to be arrested, 1040. how it is served, 1041. of presumptions; appearance of the parties, 1042. contempt and attachment, 1043. form of attachment for contempt, 1043. commitment for failure to comply with the writ, 1044. form of warrant of, 1044. service of the attachment, 1045. answer to the writ, 1046. form of, 1046. pleas to the answer, 1047. trial and judgment, 1048. plaintiff may waive right to be present, 1048. proceedings in for custody of children, 1049. disobedience of order of discharge, 1050. filing of papers, 1050. HABITUAL DRUNKENNESS See Divorce and Annulling Marriages. a ground for divorce, 1013. HANDWRITING See Evidence. HEAD OF FAMILY See Exemptions; see Homestead; see Family. HEARING of motions; see Appeals, 1165, 1301. HEARSAY See Evidence. HEIRS judgments against, how rendered, 680. See Infants; see Guardian; see Guardian ad Litem. HIGHWAY when statute of limitations runs in case of, 149. fencing by railroads, 889. HISTORICAL WORKS admissible in evidence, 417. HOLIDAYS parties not compelled to appear in court on, 255. HOMESTEAD when it is exempt from judicial sale, 1051. when it is not exempt, 1052 of debts contracted prior to its purchase, 1053. when may be sold for debts created by written contract, 1054. of the head of the family, 1055. of conveyance of, 1056. 726 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. HOMESTEAD (continued) of incumbrance of, 1056. of sale of on judgments against, 1056. extent of the homestead, 1057. may consist of several lots, 1058. what it embraces, 1059. selecting and platting of, 1060. form of selection and plat, 1060. form of notice to plat given by officer, 1060. effect of platting, 1060. form of application of creditor to fix, 1060. of notice of hearing the application, 1060. form of judgment establishing, 1060. changing the limits of, 1061. effect of on new homestead, 1061. pleading and practice, 1062. dispute as to what constitutes, how determined, 1063. action of the court, 1064. form of oath to referees, 1064. occupation of, by survivor, 1065. election of homestead in lieu of dower, 1066. disposal of, 1067. sale or devise of, 1068. abandonment of, what is, 1069. See Partition. HUSBAND AND WIFE as witnesses, 511. mortgages between, when valid, 962. See Mechanics' Liens, when husband abandons family, wife may sue or defend in his name, 71. husband may do the same when wife has abandoned him, 71. may sue and be sued in her own name, 70. an attachment or judgment against her must be enforced against her alone, 70. may sue each other, 70. IDENTITY may be proved by opinions of witnesses, 532. IDIOT See Insane Person. IMPEACHMENT using depositions for, 399. of witnesses, how done, 508. IMPERTINENT MATTER in pleading, struck out, 242. IMPLIED PROMISE need not be plead, 228. IMPOTENCY See Divorce, Alimony and Annulling Marriages. IMPROVEMENTS lien of sub-contractor on; see Mechanics' Liens and Claims. INCUMBRANCES how ascertained in partition, 1188. INCUMBRANCERS when notice given to in partition, 1188. form of notice to, 1188. of proceedings to determine, 1188. INDEX. 727 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. INDEBTEDNESS not due, attachment for; see Attachment See Redemption. INDEMNIFYING BONDS in attachment cases, 739. form of, 739. in case of executions, 820. form of, 820. in case of landlord's attachment, 1105. form of, 1105. INDEXING judgments, 690. real estate mortgages, 1160. INDORSEE form of petition when he has paid note, 250. INFANTS actions by, in whose name brought, 72, 221. actions against must be defended by guardian, 82. original notice, how served on, 179. form of caption for petition by next friend, 221. answer for in partition by guardian ad litem, 1185. form of, 1185. judgments against when vacated, 1212, 1215. See Pleading. INFORMATION AND BELIEF See Pleading; see Answer. INHABITANTS change of venue on account of prejudice of, 119. INHUMAN TREATMENT a ground for a divorce, 1014. INJUNCTIONS venue in actions to enjoin judgments, 111. amendments in cases of, 1091. transfer of proceedings to foreclose chattel mortgages to district court by, 984. violation of is a contempt, 994. object and purpose of, 1070. granted to abate nuisances relating to manufacture and sale of intoxicating liquors, 1071. how such actions should be brought, 1072. form of notice of hearing of, 1073. statute constitutional, 1073. when granted generally, 1074. when will be refused, 1075. parties to the action, 1076. manner and time of granting, 1077, 1078. rules governing the granting of, powers of court, 1079. by whom and when temporary will be granted, 1080. when not granted without notice, 1081. form and requisites of the petition to abate nuisance in sale of liquor, 1082. form of to restrain judicial sale, 1082. allowance of the writ, 1083. form of notice of hearing application for, 1083. form of order of, 1083. of the bond, 1084. form of, 1084. action on bond, 1085. 728 IXDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. INJUNCTIONS (continued) writ, form of, 1086. vacation or modification of, 1087. form of motion to, 1087. dissolution of, 1088. form of motion, 1088. pleading and practice, 1089. violation of, how punished, 1090. precept, form of, 1090. appearance, bond for, form of, 1090. warrant of commitment, 1090. when landlord may have against his tenant, 1097. will issue to suspend proceedings on motion to vacate a judg- ment, 1222. INJURIES to the person, limitation of, 140. to personal property, what must be pleaded, 212. in actions of torts generally, how pleaded, 235. by an assault, form of petition for, 250. See Pleading; see Petition. INSANE PERSON must sue by guardian, 73. defended by guardian, 83. how served with original notice, 180. INSANITY proved by opinion of experts, 532. INSTALLMENTS OP DEBT DUE sale of real estate for, 1158. see Foreclosure of Mortgage. INSTRUCTIONS to officers taking depositions, 389. to jury asked by a party, 540. must be in writing, 540. can not be orally explained, 540. given by court on its own motion, 541. modification of, 542. how made, 542. must be on matters of law, 546. reading and noting exceptions, 543. must be filed, 543. need be given but once, 544. refused when not pertinent to the issue, 545. must not comment on the evidence, 546. of statement of the issues, 547. must not refer jury to pleadings to ascertain the issues, 547. taking case from jury by, 548. when proper, 548. form of, 549. construction of, 550. what questions may be raised by, 551. of error in, without prejudice, 551. with prejudice, 553. of curing error by, 554. further, when may be given, 562. duty of jury to follow. 563. exceptions to, when and how taken, 601. INSTRUMENTS inspection of by supreme court; see Appeals. INDEX. 729 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. INSURANCE COMPANIES venue in actions against, 107. form of petition on policy of, 250. form of reply to answer to petition on policy, 324. form of answer to action on policy, 313. INTERCHANGE OF JUDGES of district court, 24. INTEREST when garnishee chargeable with, 783. INTERROGATORIES to depositions, 375. cross to, 376. annexed to pleadings when, 465. time of answering, 466. affidavits to, 467, 469. failing to answer, effect of, 468. compelling answers to, 470. submitting to jury, 569. form of, 572. special submitted to jury in actions for wrongful suing out of at- tachment, 747. form of, 747. failure to answer is a contempt, 990. INTERVENING equities, 1160. INTERVENOR See Intervention. INTERVENTION who may intervene, and when, 326. of the interest necessary to intervene, 327. must not delay main action, 328. pending application, applicant can not have a change of venue, 328. must be by petition, 329. set out facts on which it is based, 329. governed by rules applicable to other pleadings, 329. form of petition in, 331. petition for, may be dismissed before final submission of cause, 331. conclusiveness of judgments in cases of, 330. form of verdict in case of, 572. by a third party claiming attached property, 767. who may intervene, and when, J67. INTOXICATION See Divorce, Alimony and Annulling Marriages. INTOXICATING LIQUORS limitation of actions for damages from sale of, 141. use of by jury, 610. injunctions granted to restrain sale of, 1071. how such actions should be brought, 1072. of the application, 1073. form of notice of, 1073. form of petition in, 1082. INTRODUCTION OP EVIDENCE See Evidence. INVESTMENT of proceeds of sale in partition, 1204. IRRELEVANT MATTER stricken out of pleadings on motion, 242. form of such motion, 242. 730 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. ISSUES object of pleading is to form, 205. what are, 205, 471. what put in by denial, 283. when issue of fact arises, 472. equitable, how tried, 473. equitable in law action how tried, 474. order of trial of, 474, 475. instructions not pertinent to refused, 545. statement of in instructions, 547. ITEMS OF ACCOUNT See Copy. JOINDER IN DEMURRER not necessary, 275. JOINDER OF ACTIONS what causes may be joined generally, 193, 194. must be by same parties, against same parties, in same rights. 194. 197. venue as to all must be in same county, 194, 198. law and equity can not be, 194. when causes of action can not be, 195. what is an entire cause of action, 196. party need not join several distinct causes of action, 193. statute prohibits joinder in partition, 199. in divorce, 199. quo warranfo, foreclosure of mechanic's lien, replevin, 199. in actions to recover real property, 199. causes improperly joined may be stricken out, 200. form of motion to strike out, 200. of waiver of misjoinder, 201. when separate petitions may be filed, 202. JOINDER OF PARTIES when plaintiffs may be joined, 74, 75, 76. when they can not be joined, 77. of defendants, when proper, 85. in actions for sale of intoxicating liquor, 86. in actions ex delicto, 87. in actions for conversion, 88. See One Suing for All; see Appeal. JOINT WRONGDOER i effect of release of, 89. JOINT AND SEVERAL See Joinder of Parties. JUDGES of supreme court, election and term, division of, 17, 1380. failure to attend, 20. powers of; see Supreme Court. of district court; see District Court. may interchange, 24. venue of a cause may be changed when judge is a party, 118. also on account of prejudice of judge, 119. must make certificate as to jury fees, when, 133. absence of from court room during argument, 507. may be witnesses, 517. See Supreme Court; see District Court; see Superior Court, certificate to shorthand report, 589. form of, 589. form of order on clerk to certify records, 1327. INDEX. 731 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. JUDGE'S ORDERS may in vacation punish a contempt, 1002. JUDGMENT what is, 628; see Limitation of Actions. record, entry of, 50. when rendered in vacation, 30, 678. entered on verdict after close of term, 30, 678. assignee of may sue on, 59. actions to enjoin, where brought, 111. when barred, 150. of claim for in original notice, 168. personal can not be rendered on personal service made outside the State, 191. what must be stated in pleading, 238. demand for in petition, 244. forms of, 244. prayer for in equity cases, 245. form of, 245. demand for when there are several counts, 246. form of petition in action on, 250. on a foreign judgment, 250. of denials, when judgment is pleaded, 290. conclusiveness of in cases of intervention, 330. what adjudications are not, 629. when invalid, 630. may be for or against same party, 631. when matter in abatement is pleaded, 632. when defendants not all served, 633. on attachment bond when set off, 633. when special execution is asked, 634. extent of relief granted in, 635. for excess of counter claim, 636. on special verdict, 637. on verdict, 638. form of, 638. 4 notwithstanding verdict, 639. when should be entered, 640. by agreement, 641. duty of clerk with reference to, 642. discharge of, 643. of record entries, 644. caption to, in supreme court, 644. in district court, 644 reading record of, 645. amending record of, 645. signing of, by judge, 645. setting aside an assignment, 646. of dismissal, when entered, 647, 648. directing a verdict, etc., 648. form of entry of dismissal, 648. entry of dismissal in case tried to court or jury, 648. entry of dismissal by court, 648. adjudication of counter claim, 649. dismissing cause in vacation, 650. effect of judgment of dismissal, 651. by default, 652. when entered, 652. disposition of answer, 653. assessment of damages in case of, 654. 732 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. JUDGMENT (continued) what it admits, 654. assessment of damages generally, 655. on demurrer, 656. forms of, 657. on default, 657. on default where damages are assessed by jury, 657. of, on demurrer, 657. presumptions in favor of conclusiveness of, 658. when service is ma'de by publication, 659. form of bond to abide order of court, 659. on default, setting aside, 660. setting aside in supreme court, 661. setting aside when notice by publication, 662. effect on property sold under, when re-trial is had, 663. when personal can not be rendered, 664. by confession, when may be entered, 665. requisites of, 665. by a partner, not binding on firm, 666. matters not avoiding a judgment confessed, 607. appeals from, 668. form of statement for, 669. action of clerk in cases of, 670. form of judgment on, 670. offer to confess before action, 671. after action is brought, 672. form of, 672. offer to compromise by allowing judgment to be taken, 673. form of, 673. form of acceptance of offer, 673. form of affidavit of notice of acceptance, 673. conditional offer to confess, 674. in controversy, submitted without action, 675. pending action, 676. agreement of parties, 677. form of agreement of submission, 677. form of affidavit to same, 677. time of rendering, 678. in case of contested elections, 679. how rendered against heirs, devisees, etc., 680. against railroads, 681. attorney's fees in cases of, 681. when liens, 682. lien attaches in a county other than the one in which judg- ment is rendered, 683. priority of, 684. contribution of property sold to third persons to pay prior incum- brances, 685. on notes secured by mortgage, 686. continuance of lien, revivor of, 687. liens of, superior courts, 6S8. of United States courts, 682. Indexing, notice, 690. construction of records in case of. 691. revivor of, 687. on bond given for security for costs when rendered, 699. must be before costs can be recovered, 706. for defendant dissolves an attachment, 742. INDEX. 733 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. JUDGMENT (continued) when it will be rendered against a garnishee, 788. of the form of, 789. conclusiveness of against a garnishee, 791. what enforcible by execution, 793. form of in actions of right, 861. requisites of in replevin, 908. disobedience of is a contempt, 991. lien of for alimony, 1026. in habeas corpus case, 1048. against the homestead, 1056. in actions enforcing mechanics' liens, 1138. in actions of foreclosure of real estate mortgages, 1148. form of and of decree, 1148. in partition, 1189. form of and of decree, 1189. See Vacation of Judgments. T in actions of quo warranto, requisites of, 1230. satisfying against an executor or decedent, 1291. mutual, when set-off against each other, 1292. in an action of waste, 1310. in case of forcible entry and detainer, 1420. on appeal in supreme court; see Appeal. JUDICIAL DISTRICTS counties constituting, 23. number of judges in each, 23. JUDICIAL NOTICE matters of need not be plead, 226. matters of which such notice is taken, 226. JUDICIAL RECORDS See Records. JUDICIAL SALE form of petition to restrain, 1082. JURISDICTION when concurrent, 8, 1412. of supreme court; see Supreme Court. of district court; see District Court. of superior court; see Superior Court. court has none in a cause after venue is changed, 134. that court has none, cause of demurrer, 259. in actions for divorce, to annul marriages and for alimony, 1008. see Presumptions; see Courts. JURORS See Jury. JURY change of venue when jury can not be obtained, 121. jury fees in case of change of venue to be certified, 133. challenge to the panel of, 491. to individual, 492. cause of challenge to, 493. trial of challenges to, 494. talesman as, 495. exempt from serving on, who are, 496. number of to be summoned, 497. to appear, when, 497. failing to appear, 497. filling up number of, 498. re-summoning of, 498. of a majority verdict, 499. 734 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. JURY (continued) struck jury, how obtained, 500. oath to, to answer questions as to competency, 501. form of, 501. form of affirmation of, 501. oath to try the cause, 501. in case of assessment of damages, 501. case may be taken from, when, 548. See Instructions, of views by, 555. submission of the cause to, 556. separation of allowed by court, 557. admonition to be given by the court, 557. discharged, when, 558. when cause is continued, 559. what they may take with them to jury room, 560. of giving further instructions, 562. must follow instructions, 563. manner of finding verdict, 564. of polling the, 566. may find general or special verdict, 568. must answer interrogatories, 569. assessment of damages by, 571. forms of verdicts of, 572. when kept at expense of county, 573. trial by, may be waived, 574. summons to in case of attachment of perishable property, form of, 763. See Trial; see Challenge. JURY TRIAL See Jury; see Trial. JUSTIFICATION of sureties, 727, 802. form of, 727, 802. KEEPING ATTACHED PROPERTY expense of, how paid, 766. KEEPING JURY at county expense, 573. KNOWLEDGE AND INFORMATION denials of, 285. form of, 285. laborers and servants, claim of, when preferred, 1245. LANDLORD'S LIEN when, and to what the lien attaches, 1092. when he has no lien, 1093. priority of, 1094. when lien attaches, and its continuance, 1095. waiver or loss of, 1096. of injunctions against tenants, 1097. proceedings against third persons to recover for property sold them by tenant, etc., 1098. cases when the landlord may assert his lien, 1099. of the remedy, 1100. payments by the mortgagee of rent, 1101. enforcement of the lien, 1102. form of petition for landlord's attachment, 1103. form of affidavit to petition. 1103. form of the attachment, 1104. INDEX. 735 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. LANDLORD'S LIEN (continued) levy of the writ, 1105. form of indemnifying bond to sheriff, 1105. form of approval by sheriff, 1105. pleading, etc., 1106. LANDS action to recover venue of, 98. action for injuries to, 98. contracts for creation or transfer of an interest in, 456. how attached, 734. See Partition; see Action of Right; see Quieting Title; see Foreclosure of Mortgages. LAND OFFICER certificate and receipt of, when evidence, 407. LAW actions at; see Actions; Ordinary Proceedings. LAW AND EQUITY See Supreme Court; see District Court; see Jurisdiction; see Actions. LEADING QUESTIONS what are, when may be asked, 522. LEASEHOLD INTEREST sale of an execution, 1293. LEGAL CONCLUSION may be stricken from pleading on motion, 210. LEGAL TITLE pleading equitable defenses to, 309. LEGISLATURE proceedings of, how proved, 413. LEGITIMACY OF CHILDREN See Divorce, Alimony and Annul- ling Marriages. LEVY See Attachment; Garnishment; Execution. on mortgaged personal property, 986. LIBEL See Slander. petition in action of, what it must state, 236. when special damages must be alleged, 236. what words actionable per se, 236. malice not presumed from failure to prove justification, 236. LIEN judgments, when are, 682. does not attach to homestead, 682. when judgment attaches as a lien in another county, 683. priority of, 684. when liens are of same date, 684. as to unrecorded deed or mortgage, 684. on note secured by mortgage, 686. continuance of, 687. revival of, 687. of judgments of superior courts, 688. indexing judgments, 690. of an attachment, 737. priority of, 738. on property of judgment debtor, how obtained, 819. of chattel mortgage. of landlord, 1092. when he has no, 1093. 736 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. LIEN (continued) priority of, 1094. when it attaches, its continuance, 1095. waiver or loss of, 1096. enforcement of, 1099, 1102. on public buildings and improvements, 1118 to 1120. mechanic's, 1122 to 1143. right to, denied when, 1123, 1124 and 1126. extent of, 1127. priority of, 1128. when it attaches, 1129. how preserved, 1130. how enforced, 1132. when forfeited, 1134. pleadings and practice in cases of, 1135. satisfaction of, 1136. form of, 1136. of sub-contractor, how preserved and how discharged, 1141. form of bond to discharge, 1141. extent of sub-contractors, when filed after thirty days, 1143. in case of real estate mortgages, 1153. priority of, 1160. See Transcript; see Judgment; see Attachment; see Landlord; see Mechanic's Lien; see Appeals. LIMITATION OF ACTIONS construction of statute, 136. statutes of, constitutional, 136. relate to the remedy, 136. apply to actions at law and in equity, 137. to municipal corporations, 137. to counties, 137. to actions in name of State for use of others, 137. to bodies politic and corporate, when, 137. power of legislature to change statute, effect of repeal, 138. sureties, effect of statute as to, 139. actions against municipal corporations, when barred, 140. actions barred in one year, 140. barred in two years, 141. statute penalty, 142. mechanics' liens, 143, 1139. barred in three years, 144. barred in five years, 145. actions for injuries to property or relief on the ground of fraud, etc., 146. barred in ten years, 147. those founded on written contracts, 147. on judgments, 148. for the recovery of real property, 149. barred in twenty years, 150. when the statutory period begins to run generally, 151. in actions by partners, 151. in action by sureties, 151. on an unwritten contract, 151. against a sheriff or public officer, 151. in cases of express trusts, 151. for nuisance, 151. on judgments, 150. to recover real property, 149. of mandamus, 144. INDEX. 737 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. LIMITATION OF ACTIONS (continued) for fraud and mistake, 152. for torts, 141. for personal injuries, 141. to enforce mechanics' liens, 143. of slander and libel, 143. on unwritten contracts, 145. for injuries to property on ground of fraud, 146. to recover dower, 149. regarding highways, 149. to redeem, 149. on book accounts, 154. of extension of time of, disability of plaintiff, 155. in case of minors, 155. in case of insane persons, 155. when the bar complete as to non-residents, 156. when complete as to contracts made in another State, 156. evidence of non-residence, 157. of actions barred by laws of another State, 158. of extension of time by death, 159. by failure of suit, 159. when party is enjoined or prohibited from bringing suit, 139, 159. of the removal of the bar of the statute, 160 new promise or admisison must be in writing, 160. of recitals in mortgages, 160. partial payments will not prevent bar, 160. indulgence will not prevent bar, 160. when debt revived, statute begins to run anew, 160. what is deemed the commencement of the action, 161. effect of filing amendment, 162. counter claim when not barred, 163. when defense of statute must be pleaded, 164. how pleaded, 162, 164. when defense of statute should be raised by demurrer, 165, 268. when defense of statute is waived, 164. of pleading matters removing the bar, 166. answers pleading statute of, 313. in action of right, for use and occupation of premises, 862. in proceedings for certiorari, 953. LIS PENDENS See Demurrer. in action of right, 869. LITIGATION appointment of receiver pending; see Receivers. LIVE STOCK See Stock. LOST PLEADING when substituted, 356. LOST RECORD, 691. LUNACY See Divorce, Alimony and Annulling Marriages. LUNATIC See Insane Person. MACHINERY how partitioned, 1179. MAILING notice of receipt of depositions by clerk; see Depositions. MALICE not presumed from failure to prove justification, 236. when it must be pleaded generally, 241. 47 738 INDEX. Volume I, Sections 1 to 770; Volume II. Sections 771 to 1420. MALPRACTICE form of petition for, 250. MANDAMUS jurisdiction in case of, 54. action for, when barred, 144. when actions joined with, 199, 1113. object and purpose of the order, 1107. by whom issued, 1108. not issued to control discretion, 1109. when the order will issue, 1110. will be refused, 1111. on whose petition it will be granted, 1112. of the petition, requisites of, 1114. forms of, 1114. of practice, t ll!5. of the order, its requisites, 1116. form of, 1116. powers of the court, 1117. MAPS admitted in evidence, when, 417. MARRIAGE action for breach of promise of, petition in, 250. record of, admissible in evidence, 420. contracts in consideration of, 454. See Divorce, Alimony and Annulling Marriages. MARRIED WOMEN actions by, 70. actions against, how brought, 79. may sue for her earnings, 70. may sue her husband, when, 70. may sue without joining her husband, 70. can own and convey lands, 70. MATERIAL ALLEGATIONS only need be stated, 225. MATERIALS FURNISHED See Mechanics' Liens and Claims. MEASURE OF DAMAGES See Damages. MECHANICS' LIENS venue in foreclosure of, 99. limitation of actions to foreclose, 143, 1139. no action can be joined with action to enforce, 199. when it lies, 1122, 1121. when none allowed, 1123, 1124. of the contract, 1125. extent of lien, 1127. by the husband, lien on wife's property, 1126. priority of, 1128. when it attaches, its continuance, 1129. how preserved, 1130. form of statement of account for, 1130. form of affidavit to, 1130. duties of the clerk, 1131. enforcement of, 1132. of defendants in, 1133. when forfeited, 1134. pleadings and practice in, 1135. satisfaction of, 1136. form of, 1136. petition to enforce, 1137. INDEX. 739 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. MECHANICS' LIENS (continued) form of, 1137. of judgment, 1138. of limitation of actions, 1139. sub-contractors, who are, 1140. how lien of preserved and how discharged, 1141. form of notice of filing claim of, 1141. form of bond to discharge lien of, 1141. payments made by owner to contractor within the thirty days, 1142. extent of lien of sub-contractor, when claim is filed after thirty days, 1143. redemption from sale of real estate by holder of, 1254. MEDICAL works admissible in evidence, 417. MERGER when it will not take place, 1161. MEMORANDA See Statute of Frauds. MILLS how partitioned, 1179. MINISTER See Ambassadors; see Consuls. of the gospel excused from acting as juror, 496. not to reveal confidential communications, 509. MINERS liens for opening, developing and operating coal mines, 1121. MINORS See Infants. MISCONDUCT of attorneys in argument ground for new trial, 538. of jury, ground for new trial, 607. of successful party ground for new trial, 607. MISFORTUNE unavoidable, judgment vacated in cases of, 1214. MISJOINDER of causes of action, 200. plaintiff may strike out cause of action, 200. court may strike out cause of action on motion of defendant, 200. form of motion to strike, 200. when waived, 201. when separate petitions filed, 202. of parties, 263. not ground of demurrer, 263. MISNOMER in attachment bond cured by filing new bond; see Attachment; see Amendments. MISREPRESENTATIONS See Fraud. MISTAKE statute of limitations begins to run in cases of, 152. See Vacation of Judgments; see Equity; see Equity Jurisdic- tion. MITIGATION matter in, specially pleaded, 299. when matters in pleaded as a partial defense, 299. in actions of slander and libel, 299. MODE of redemption, 1262. 740 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. MODIFICATION of injunction, 1087. form of motion for, 1087. of judgments; see. Vacation of Judgments, of rules of supreme court, 1398. MONEY when exempt from execution, 833. See Attachment; see Execution; see Exemption. MONEY JUDGMENT See Replevin. MORAL CHARACTER See Impeachment. MORTGAGE See Foreclosure; see Chattel Mortgage. MORTGAGEE interest in chattel property, 970. when estopped from recovering on mortgage, 973. payment of rent by, 1101. MORTGAGOR retention of possession of personal property by and sale by him, 958. interest in chattel property before sale, 968. interest in chattel property after sale, 969. See Parties; see Foreclosure of Mortgages. MORTGAGED CHATTELS how levied on, 812. MORTGAGED PROPERTY appointment of receiver in cases of, 1240. MOTION for change of venue, 112, 117, 118, 119, 121, 125. form of for change of venue, 116 to 119, 121. to strike out for misjoinder, 200. form of, 200. to correct error in form of proceedings, 11. evidence in pleading, stricken out on, 209. irrelevant or redundant matter stricken out on, 209, 242. averments of law when stricken out on, 209. matter not constituting a defense stricken out on, 209. form of motion to strike out irrelevant matter, 242. for more specific statement, 243. form of, 243. when motion should be made and filed, 257 objection waived by demurring or answering. 257. must be in writing, 257. and specify causes on which they are founded, 257. motion after a motion not allowed to same pleading, 257. motion in arrest of judgment, when may be made after verdict and before judgment is entered, 257. assailing pleadings regulated as to time and manner of filing as demurrers, 257. suspends necessity for further pleadings until it is disposed of, 257. when to be argued, 257. filing in clerk's office equivalent to filing in open court, when, 257. to strike out pleading for improper verification, 338. form of, 338. for continuance, 481, 482, 483. decision of, 484. motion must be filed, when, 485. INDEX. 741 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. MOTION (continued) amendment of, 486. form of, 489. form of affidavits, 489. practice on, 490. for new trial with affidavits, form of, 623. without affidavits, form of, 624. for security for costs when may be made, 695, 696. form of, 697. form of affidavit to accompany motion, 607. form of counter affidavit, 697. to discharge attachment, form of, 724. of garnishee to set aside default, 780. form of, 780. form of to modify an injunction, 1087. form of to dissolve an injunction, 1088. to vacate judgments, 1217. form of for summary proceedings, 1299. form of motion when the action is against an officer for refusing to pay over, 1299. in the supreme court, when filed and heard, 1347, 1389. MOTIONS AND ORDERS what is a motion, 1162. form and requisites of, 1162. notice of, when necessary, 1163. form of, 1163. service and return of, 1164. hearing of and of practice, 1165. what is an order, 1166. when they may issue, 1166. MUNICIPAL CORPORATIONS claims against, when barred, 140. manner of service of original notice on, 177. powers of, relating to nuisances, 1172. MUTUAL INSURANCE form of petition on policy of, 250. MUTUAL JUDGMENTS when set off, 1292. NAME of parties, how stated in petition, 218 to 221. where name not known, what petition must show, 222. See Pleadings; see Petition. NAMES OF PERSONS See Change of Name. NEGLIGENCE contributory, in case of fires set by railroads, will not prevent recovery, 883. See New Trial; see Continuance. NEW MATTER as a defense, what is, 297. how pleaded, 298. constituting counter claim, 301, 302. form of pleading, 313. NEW PARTIES .when ordered made, 90, 91, 92. to counter claim, 303. 742 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. NEW PROMISE when removes bar of statute of limitations, 160. must be in writing, 160. when may be made, 160. not implied from part payment, 160. NEW TRIAL misconduct of attorney in argument may be ground for, 538, 607. what is a, 605. when granted for irregularities of proceedings of the court, 606. for misconduct of jury, 607. for misconduct of successful party, 607. because verdict is determined by chance, 608. affidavit of jurors, when received to avoid verdict, 609. when to support verdict, 609. effect of use of intoxicating liquors on verdict, 610. granted on account of accident or surprise, 611. when damages are excessive, 612. for error in assessing damages, 613. when the verdict is not sustained by the evidence. 614. of setting aside verdicts in the supreme court, 615. when verdict is contrary to law, 614. when granted on the ground of newly discovered evidence, 616. materiality of such evidence, 617. showing of diligence in discovering it, 618. other cases, when granted, 619. when granted in equity, after a judgment at law, 620. for errors of law, 621. when the application for must be made, 622. ,-when application for must be supported by affidavits, 623. form of motion for, 623. application for without affidavits, 624. form of. 624. conditional order for, 626. of defective pleadings, 625. pleading and practice on, 627. costs of, 627. in actions of right, when granted, 867. See Vacation of Judgments, when motion for not necessary in order to have question reviewed in supreme court, 1355. NEXT FRIEND infant may sue by, 221. See Infant. -, NOMINAL DAMAGES what are, 749. in attachment suits, 749. NON-JOINDER form of answer pleading, 313. NON OBSTANTE VERDICTO when it may be rendered, 639. by the court, or on motion of a party, 639. NON-PAYMENT of damages, when should be pleaded. See Pleading; see Attachment; see Petition. NON-RESIDENT when bar of statute of limitations complete as to, 156. evidence of, 157. burden to establish on party alleging, 157. INDEX. 743 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. NON-RESIDENT (continued) will not necessarily defeat jurisdiction, 259. served by publication; see Publication. re-trial when judgment rendered against one served by, 662. See Attachment; see Exemptions. NOTARY PUBLIC may take depositions, 373. certificate of, when admissible in evidence, 419. NOTES AND BILLS See Bills and Notes. NOTICE See Original Notice. form of to executor to revive action, 96. of taking depositions, 368, 369, 371. service and return of, 370. form of, 371. . of taking depositions on commission, 372, 374. service of and form of, 375. what is reasonable of taking depositions, 369. of filing depositions, 395. to produce papers, 428. form of, 428. of taking an affidavit, when given, 433. indexing judgment constructive, 690. of claim of ownership of attached property, 739. form of, 739. form of oath to notice, 739. to defendant of examination of perishable property, 763. form of, 763. of application to sell perishable property, 763. form of garnishment, 771. to the principal defendant in a garnishment proceeding, 786. to garhishee to show cause why execution should not issue, 780. form of, 780. in actions to quiet title, 864. form of, 864. of the pendency of an action affecting real estate in another county, requisites of, 869. to railroad company of killing stock, 887. form of, 887. requisites of, 892. notice of hearing by arbitrators, 914. form of, 914. form of, of application for certiorari, 950. in foreclosure of chattel mortgages, 975. requisites and form of, 976. of change of name, 1007. form of, 1007. to county attorney of hearing of habeas corpus case, 1036. form of, 1036. form of to plat homestead, 1060. when injunction not granted without, 1081. form of, 1073, 1083. form of filing claim by sub-contractor, 1141. form of to mortgagee to cancel mortgage, 1154. of motions, when to be given, 1163. form of, 1163. service and return of, 1164. in case of partition, service and return of, 1182. form of by referees to incumbrancers, 1188. 744 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. NOTICE (continued) of sale by referees, 1199. form of, 1199. form of, of application for a receiver, 1237. of notice of sheriff's sale, 1277. form of notice, 1279. form of notice by sheriff to defendant in execution of sale of real estate, 1283. form of notice to executor of proceedings to subject real estate to execution, 1291. form of, to choose appraisers, 1294. notice of the motion in summary proceedings, 1300. form of, 1300. of appeal, 1321, 1383. form of, 1321. service of, 1322, 1383. to quit, 1415. form of, 1415. See Publication; see Service. NUISANCE injunctions granted to restrain in case of sale of intoxicating liquor, 1071, 1072. of the application in such case, its form, 1073. form of petition in case of, 1082. injunction granted to restrain generally, 1074. definition of, 1167. when the action lies, 1168. when it will not lie, 1169. of the petition, 1170. forms of, 1170. abatement of, by parties injured, 1171. power of municipal corporations to determine what is, 1172. of practice, 1173. of the order of abatement, 1174. form of, 1174. NUMBER of changes of venue, 124. of trial jurors, 497. filling up, 498. of witnesses, limiting, 506. NUMBERED causes of demurrer must be, 258. counts of a petition must be, 248. paragraphs in petition in equity must be, 251. NUNC PRO TUNG entries, when courts may make, 691. OATH who may administer, 34, 922. of shorthand reporter, 22. of juror as to qualifications, 501. of jury to try issues, 501. courts may administer, 34. to witness, 504. form of, 504. form of affirmation of, 504. to bailiff of petit jury, 556. form of. 556. of referees, 583. IXDEX. 745 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. OATH (continued) form of, 583. of appraisement of property when delivery bond is taken in at- tachment, 741. form of, 741. garnishee must take, to make true answers, 772. form of, 772. to appraisement in replevin, form of, 904. of referees to determine limits of homestead, 10C4. of referees in partition, form of, 1192. of receivers, form of, 1243. , of appraisers, form of, 1294. OBJECTIONS that suit is brought in wrong county, waived when, 114. which might be raised by demurrer, when waived, 2/8. to application for continuance, when made. 487. to evidence on trial, when must be taken, 525. See Pleadings; see Demurrer; see Motion; see Answer; see Exceptions; see Depositions. OCCUPYING CLAIMANTS action by at law, 5. OCCUPATION of homestead by survivor, 1065. OFFER conditional to confess judgment, 674. to confess judgment before action is brought, 671. after action is brought, 672. to compromise, 673. form of by allowing judgment to be taken, 673. OFFICE venue in cases of suits growing out of business of an office or agency, 108. OFFICERS duty of, in attachment cases, 730. compensation of, in proceedings auxiliary to execution, 845. duty of in habeas corpus cases, 1039. presumptions in favor of acts of, 1208. See Venue: see Depositions; see Clerk of District Court; see Sheriff. OFFICIAL BOND security to whom, 870. when action will lie on, 871. may be several on same bond, 872. extent of liability of sureties, 873. petition in actions on, 874. form of, 874. ONE SUING FOR ALL when parties are numerous, etc., 68. ONUS PROBANDI See Burden of Proof. OPEN AND CLOSE See Argument. OPINIONS of supreme court to be in writing and filed. 21. 1391. when to be published, and what must show, 21, 1391. See Evidence; see Appeals. ORAL ARGUMENTS in supreme court, 1390, 1405. 746 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. ORDER allowing the examination of witnesses, 461. of trial, 474, 475. of proof and of examination of witnesses, 520, 521. of argument on trial, 535. of reference, when made, 580, 581. of new trial, effect of, 627. allowing specific attachment, 756. for examination of judgment debtor, made by whom, S37. form of, 837. for change of name, 1005. form of, 1005. penalty for disobeying order of discharge in habeas corpus case, 1050. of court allowing an injunction, form of, 1083. of mandamus, 1110, 1111, 1115. 1116. for abatement of a nuisance, form of, 1174. appointing guardian ad litem in partition, form of, 1185. ORDERS made in attachment proceedings. 764. disobedience of is a contempt, 991. what are, 1166. when may issue in vacation, 1166. how kept in force, 1166. when bond may be required, 1166. See Appeals. restraining, when issued by supreme court, 1408. ORDINANCE of city or town, how proved, 415. ORDINARY language to be used in pleading; see Pleading. ORDINARY PROCEEDINGS include law actions, 2, 5. actions which must be by, 5. may be by ordinary or equitable, 8. effect of error in form of proceeding, 10. how remedied, 11. when objection waived, 12. when change in proceedings may be ordered, 15. of uniformity of procedure, 16. See Actions, Trial, Remedies. ORGANIZATION of supreme court; see Supreme Court, of district court; see District Court, of superior court; see Superior Court. ORIGINAL ENTRIES when admissible in evidence, 404. what is book of, 443. charges how made in, 444 to 446. made by third persons, 446. See Evidence. papers, when sent up on appeal; see Appeal, papers, when may be withdrawn from files of the supreme court; see Appeal. ORIGINAL NOTICE actions commenced by, 1G7. remiisites and form of. 167. 168, 170. judgment can not be collaterally attached for defects in form, 169. computation of time, 171. INDEX. 747 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. ORIGINAL NOTICE (continued) notice served by whom, 172, 185. manner of service, 173. on partnership, 174. on an agent of a corporation, 175. on an agent employed in an office or agency, 176. on municipal corporations, 177. on a county, 178. on minors, 179. on insane persons, 180. on prisoners in the penitentiary, 181. return of service by officer, 182. requisites and form of, 182. form of acknowledgment of service, 182. of service by leaving copy, 183. form and requisites of return, 183. of service on Sunday, 184. form of affidavit for, 184. sheriff may be fined for failing to serve or return notice, 185. of proof of service, how made, 186. of conclusiveness of return, 186. of service by publication, when may be made, 187. of construction of statute, 188. presumptions, 188. of the affidavit for publication, 189. form of, 189. proof of publication, how made, 190. form of, 190. of actual personal service, 191. of service on unknown defendants, 192. form of notice in such cases, 192. need not be served when defendant appears, 254. amendment of, 355. OUSTER judgment of in quo warranto proceedings, 1230. OWNERSHIP when and how alleged, 214. notice to the officer of claim of, in attachment cases, 739. form of, 739. form of affidavit to, 739. See Replevin and Detinue. PAPERS how withdrawn from files in supreme court, 1357, 1400. PAPERS AND WRITINGS production of. how compelled, 421 to 428. See Books and Papers. PARAGRAPHS of petition, when to be separated and numbered; see Petition; Pleading; Equitable Proceedings; see Numbered. PARCELS sale in, redemption from, 1264. PARENT AND CHILD parent may sue for child's services, 71. may sue for damages causing death of child, 71. for seduction of daughter, 71. PAROL EVIDENCE See Evidence, PAROL CONTRACT See Statute of Frauds. PARTIAL DEFENSE how pleaded, 311. 748 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. PARTIES real party in interest must be, 54, 53, 59. one having a beneficial interest may sue, 54. holder of legal title to land shouid sue for damages to it, Cl. indorsee of commercial paper may sue, 55. holder of paper as collateral security may sue, 55. assignee may sue, 58, 59. owner of personal property or one having special property should sue for damages to it, 60. when one partner can sue another, 61. when he can not, 61. administrators, executors and guardians may sua, 62. foreign executor may sue, when, 63. trustee may sue, when, 64. when an agent may sue, 64. persons for whose benefit a contract is made may sue, 65. bonds, action on may be brought in name of one secured who is injured, 66. persons authorized by statute to sue, 67. when parties are numerous one may sue for all, 68. corporations must sue in corporate name, 69. married women may sue, when, 70. parents may sue for services of their children, 71. may recover for wrongful act causing death of minor child, 71. infant must sue by guardian or next friend, 72. insane person must sue by guardian, 73. joinder of plaintiffs, 74, 75, 76, 77. defendant, all persons having an adverse interest should be, 73. in actions against married women, 79. in actions against partners, 80. in foreclosure cases, 81. against minors, 82. against insane persons, 83. against unknown defendants, 84. joinder of, 85. in actions for sale of intoxicating liquor, 86. in actions ex delicto, 87. in actions for conversion, 88. but one satisfaction in cases of tort, 89. effect of release of one defendant, 89. new parties defendant, when made. 90. substitution of, when, 91. 94. 95. in actions against sheriff, 92, 93. death of party or transfer of interest will not abate action, 01, 96. in actions in case of landlord's attachment, 97. who must be to actions to consolidate them, 197. names of, how stated in petition: see Petition, effect of presence of when deposition is taken, 379. absence of, a ground for a continuance, 482. to the action, when can not be witnesses, 514. 515. 516. understanding of, as to terms of an agreement, 517. judgment may be for or against same, 631. in actions of right. 853. in actions of replevin, 898. In certiorari, 947. to the proceedings to foreclose chattel mortgages, 978. of parties to an injunction proceeding, 1 ftF7 6, in action to enforce mec>ianip's lien, 1133. to foreclosure of mortgages, 1145. INDEX. 749 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. PARTIES (continued) in actions of partition, 1177. in actions of forcible entry and detainer, 1411. PARTITION when voluntarily made, 1175. by suit, 1176. parties to the action, 1177. when it is not the proper remedy, 1178. of water power, mills, etc., 1179. of the interest of the widow and of the homestead, 1180. of land owned by a firm, 1181. of the notice and its service, 1182. requisites of the petition, 1183. form of in, 1183. form of when there are incumbrances, 1183. form of prayer when liens are set out, 1183. of the answer, wnen taken as true, 1181. of minors by guardian ad litem, 1185. form of order appointing guardian ad litem, 1185. form of his answer, 1185. of disclaimer, when entered, form of, 1186. practice on, 1187. incumbrances, appointment of referee to ascertain, 1188. form of referee's notice to incumbrancers, 1188. proceedings in relation to, 1188. decree in, 1189. form of, 1189. appointment of referees, 1190. form of commission to, 1190. directions to, 1191. qualifications of, 1192. form of oath of, 1192. when referees need not be appointed, 1193. duties of referees, when partition is made, 1194. report of partition, 1195. form of, 1195. form of plat to accompany report, 1195. when report will be set aside. 1196. confirmation of the report, 1197. form of judgment on, 1197. bond of referees when sale is made, 1198. form of, 1198. notice of sale, 1199. form of, 1199. report of sale by referees, 1200. form of, 1200. setting aside the sale, 1201. confirming sale and of conveyance, 1202. form of conveyance, 1202. effect of conveyance, 1203. investing proceeds of sale, 1204. of costs and attorney's fees. 1205. when fees not taxed, 1205. amount of fees taxed, 1205. of appeals, 1206. of the record, 1207. PARTNERS suits for firm debts, how brought, 61. when one partner may sue, 61. one partner can not sue the other, 61. 750 IXDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. PARTNERS (continued) may sue him on account stated, 61. actions against, 80. surviving must sue for debts due the firm, 219. may be sued jointly or severally, 219. caption of petition against, 219. form of petition by surviving partner, 250. assignment by, 928. See Partnership; see Original Notice. PARTNERSHIP how served with original notice, 174. in what name suits brought by or against, 219. should be sued how, 219. property, how attached, 735. appointment of receivers in, 1239. See Partners; see Attachment. PATERNITY See Divorce, Alimony and Annulling Marriages. PAYING OVER PROCEEDS of sheriff's sale; see Sheriff's Sale. PAYMENT how pleaded, 214, 298, 313. in mechanic's lien cases, of owner to contractor within the thirty days, 1142. PEDIGREE how proved; see Evidence. PENALTY venue in actions for, 101. for failure of garnishee to attend court and answer, 779. See Limitation of Actions; see Foreclosure of Mortgages. PENDENCY OF ACTION See Lis Pendens; see Notice. PENSION MONEY exempt from execution, 824. PEREMPTORY See Mandamus. PERMITS TO SELL LIQUOR may be revoked by district court, 34. PERFECTING APPEAL See Appeals. PERFORMANCE of contract, place of, 104. of precedent conditions, how plead, 239. contracts not to be within one year, 457. of part, 459. PERPETUATING TESTIMONY See Evidence. PERSON See Personal Actions; Statute of Limitations. PERSONAL ACTIONS venue in, 109. PERSONAL EARNINGS exempt from execution, 823. PERSONAL INJURY claim for is assignable, 56. See Pleading; see Petition. PERSONAL JUDGMENT when can not be rendered, 664. PERSONAL PROPERTY breach of warranty in sales of. how pleaded. 215. contracts relating to sale of: see Statute of Frauds: see Venue: see Remedies; see Parties; see Pleadings; see Replevin and INDEX. 751 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. PERSONAL PROPERTY (continued) Detinue; see Execution; see Sheriff's Sale; see Chattel Mort- gages. PERSONAL TRANSACTIONS OR COMMUNICATIONS witness can not testify to, 515, 516. PETITION effect of failure to file at time fixed in notice, 171, 252. not filed till memorandum made on appearance docket, 171. the first pleading, 208, 217. of the name of court and county in, 217. of name of the parties, 218. of the commencement of, 217, 218. form of caption of, 218. in case of partnership, 219. form of caption in suits against, 219. in action against one in representative capacity, 220. form of caption, 220. in actions by minors, 221. form of caption to, when name of defendant is not known, 222. what petition must state when defendant is not known, 222. forms of commencement of, 223. statement of facts in, 208, 224. material facts only stated in, 225. matters of which courts take judicial notice not to be stated, 226. in when fraud is pleaded, 213, 227. implied promise not to be stated in, 228. time, quantity, value and place, how stated in, 229. duty of courts as to statements in, 230. when the action is on a bill or note, 231, 232. in must show plaintiff's right to sue, 232. in actions on written contracts, 233. copy of writing sued on must be set out, 233. instruments of evidence need not be, 233. in actions on accounts, 234. bill of particulars set out in, 234. in actions for torts, allegations in, 235. when special damages alleged, 235. in actions for slander and libel, 236. in when statute is pleaded, 237. in when judgment is pleaded, 238. when pleading performance of condition precedent, 239. when" suit is in representative capacity, 240. when declaring on a conveyance, 241. when malice is relied on it must be specially pleaded, 241. when bond is declared on, 241. when contract is declared on, 241. when irrelevant or redundant matter will be stricken out, 242. form of motion to strike out, 242. when motion for more specific statement will lie, 243. form of motion, 243. demand for judgment in, 244. form of. 244. in equity cases. 245. forms of. 245. for alternative relief, 245. on money claim, only one prayer needed, 246. of signature to petition, 247. form of, 247. each cause of action must be stated in a separate count, 248. 752 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. PETITION (continued) counts of must be numbered, 248. motion to divide and number counts in, when will lie, 248. form of motion, 248. motion to correct petition when it lies, 248. different counts in for same cause of action, 249. form of on a promissory note against maker, 250. against maker and indorser, 250. on note payable in specific personal property. 250. in action on note by surviving partner of firm, 250. by an indorser who has paid note, 250. for goods sold and delivered, 250. statement of account in case of, 250. on an account stated, 250. on an account for services, 250. on sale of a chattel, 250. by one administrator against another, 250. on judgment by leave of court, 250. on a foreign judgment, 250. for breach of promise of marriage, 250. against a surgeon for malpractice, 250. on a policy of life insurance in a mutual benefit association, 250. for damages for an assault, 250. in intervention, 331. form of for production of books and papers, 423. form of to perpetuate testimony, 460. for an attachment, requisites of, 715, 716, 720. form of, 716. verification of in attachment cases, 722. form of for examination of judgment debtor, 835. in equity to subject property to satisfaction of judgment, 846. form of petition, 847. in an action of right, 857. form of in, 857. to quiet title, 865. form of in, 865. on official bond, form of, 874. on forfeiture, form of, 876. requisites of in action against railroad for setting fire, 888. form of in such case, 886. killing stock by railroad, form of petition for, 887. exhibits attached to form of, 887. in actions of replevin and detinue, 900, 911. form of. 900, 911. on an award, 919. form of, 919 in certiorari proceedings, requisites of, 950. form of, 950. for change of name, 1004. form of, 1004. in actions of divorce and for alimony, 1016. form of in, 1016. to annul marriages, 1029. in habeas corpus case, 1033. form of. 1033. in injunction case. 1082. forms of. 1082. in action by landlord to enforce his lien, 1103. form of, 1103. form of affidavit to, 1103. INDEX. 753 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. PETITION (continued) in mandamus proceedings, requisites of, 1112, 1114. in actions to enforce mechanics' liens, 1137. form of, 1137. in actions to foreclose real estate mortgages, 1147. form of, 1147. form of prayer in when notes not all due, 1147. in actions to foreclose title bonds, 1147. form of, 1147. in actions to abate nuisances, 1170. forms of, 1170. in actions of partition, requisites of, 1183. form of, 1183. form of additional paragraphs in when there are iacum- brances, 1183. judgments may be vacated by, 1218, 1219. form of, 1221. in actions of quo warranto, 1229. form of, 1229. form of for appointment of receiver, 1238. form of for alienating affections, 250. form of to recover costs of party wall, 250. form of against a city for injuries from defective sidewalk, 250. form of to recover damages for ejection from a train, 250. form of to recover from a sheriff, 250. form of on policy of fire insurance, 250. form of to revive judgment against an administrator, 1276. form of to subject real estate to the payment of a judgment against executor or decedent, 1291. form of in an action of trespass, 1306. in an action of waste, 1312. in action of forcible entry and detainer, 1416. form of, 1416. when petition should be attacked by motion, 257. in equitable actions must be separated into paragraphs, 251. what it must contain, 251. form of to correct mistake in deed, 251. amendment of, 340 to 342. See Amendments; see Pleading; see Joinder of Causes of Action; see Verification. PHOTOGRAPHS as evidence, 519. when competent, 519. ,, jury may have magnifying glass to examine, 519. PHYSICIAN exempt from jury service, 496. privileged communication to can not be divulged, 509. PICTURE See Photograph. PLACE of performance of contract, 104. of holding courts, 18, 23, 24, 34. See Courts. of commencing actions; see Venue, allegations of, in pleadings, 229. denials of, 289. PLACE OF TRIAL See Change of Place of Trial; see Venue. PLAINTIFF real party in interest must be, 54. indorsee may be, 55. assignee may be, 58, 59, 60. Vol. 11-48 754 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. PLAINTIFF (continued) in action by partners, 61. in actions by executors, administrators and guardians, 62. by foreign administrators, 63. by a trustee, 64. by person for whose benefit a contract is made, 65. on bonds, 66. where persons are authorized by statute to sue, 67. brought by one or more for all, 68. by corporations, 69. by married women, 70. by parents, 71. by minors, 72. by insane persons, 73. of joinder of, 74, 75, 76, 77. when he has no legal capacity to sue, 2G1. defect of parties, 263. not entitled to relief demanded, 264. pleading non-joinder of, form of, 313. when costs should be taxed to, 701. PLAT admissible in evidence when, 403. of referees in partition, form of, 1195. PLATTING HOMESTEAD See Homestead. PLEADING what must show when relief is sought on ground of fraud, 153. when statute of limitations must be pleaded, 164. definition of, 204. object of, 205. forms of action abolished, 206. facts only need be stated, 206, 208, 224. construction, rule of, 207. what pleadings are allowed under the code, 203. evidence must not be pleaded, 209, 224. immaterial matters must not be pleaded, 208, 209. matter may be plead as inducement, 209. legal conclusion and presumptions must not be, 210. what are legal conclusions, 210. consideration need not be plead in first instance in case of writ- ten instruments, 210. how issues are formed, 211. when kind and species of property must be stated, 212, 241. when necessary to allege commencement of particular estate, 212. 241. effect of pleading more than is necessary, 212. allegation of ownership title, 214. payment, 214, 298, 313. breach of covenant of warranty, 215. warranty in sale of chattels, 215. estoppel, 216. See Petition, caption of, 218 to 221. when name of defendant is not known. 222. of commencement of petition, 223. must contain a statement of the issues, 205, 224. material facts only to be stated. 225. matters of which courts take judicial notice need not be, 223. fraud must be pleaded. 213. 227. implied promise need not be, 228. allegations of time, quantity, place and value, 22D. INDEX. 755 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. PLEADING (continued) what must be, generally, 230. in actions on notes and bills, 231. must show right to maintain the action, 232. must show if action is based on a written instrument, 233. must set out copy of it, 233. a judgment must show what, 232, 238. in action on an account, 234. must set out copy of it, 234. in actions for torts generally, 235. when special damages must be, 235. in actions of slander and libel, 236. malice alleged when, 236 to 241. a statute, 237. performance of conditions precedent, 239. representative capacity what alleged, 240. a conveyance, 241. breach of conditions of a bond, 241. alleging non-payment of damages, 241. breach of contract generally, 241. irrelevant or redundant matter stricken out, when, 242. form of motion for, 242. made more specific, when, 243. form of motion for, 243. demand for judgment, 244. forms of, 244. in equity cases, 245. form of, 245. of alternative relief, 245. when there are several counts, 246. signature to, and forms of, 247. must state each cause of action in a separate count, 248. when motion to divide and number will lie, 248. form of motion, 248. when motion to correct will lie, 248. the same cause of action in different counts, 249. See Demurrer; see Answer; see Judgment, when must be filed by defendant, 256. day court opens is first day of the term for purpose of timing pleadings, 256. when allegations of taken as true, 256. See Statute of Frauds, attaching interrogatories to. 465. time of answering them, 466. affidavits to, 467, 469. form of, 467. of compelling answers to interrogatories. 470. defective when, may file statement of omitted facts, 625. In case of application for new trial. 627. in actions on attachment bonds. 751. in cases of specific attachments, 756. in cases of replevin, 906. in homestead cases, 1062. in injunction cases, 10S9. in actions to enforce landlord's lien. 11 OR. in actions to foreclose mortga^s and title bonds, 1158. in actions of quo warranto. 1228. in actions of forcible entry and drainer, 1416. See Amendment; see Pleadi^srs; see Verification; see Supplemental; see Substitution; see Intervention. 756 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. PLEADINGS filing of, 53. necessity for filing suspended by filing motion, 257. verification of, 332 to 339. supplemental, when permitted, 349. substituted, when allowed, 356. in attachment cases brought for debts due the State, 760. in case of contempts, 1000. ' in actions to enforce mechanics' liens, 1135. in proceedings to vacate and modify judgments, 1220 See Pleading. PLEDGE of sale of chattel mortgaged property, 987. POSSESSION of one tenant in common, the possession of all, 149. retention of by mortgagor of personal property, 958. See Action of Right; see Quieting Title. POWER of referees, 584. PRACTICE error in form of proceeding, 10, 11, 12. can not demur and answer same counts at same time, 264. demurrer will not lie to part of a count, 265. nor to a paragraph in a petition, 265. in case of amendments to pleadings, 350. in taking case from jury, 548. in actions tried by the court, 574 to 578. in applications for new trials, 627. in actions on attachment bonds, 751. in trials of actions of right, 859. in cases against railroads for injuries to stock, 893. in cases of replevin, 906. in homestead cases, 1062. in injunction cases, 1089. in mandamus cases, 1115. in actions to enforce mechanics' liens, 1135. in actions to abate nuisances, 1173. in actions of partition, 1187. in proceedings to vacate and modify judgments, 1220. in actions of quo warranto, 1228. in actions of trespass, 1307. unwritten of supreme court, 1403 to 1411. rules regulating, 1379 to 1402. PRAYER for judgment when necessary, 312. when there are several counts, 246. for alternative relief, 245. in equity cases, 245. forms of to petition, 244, 245. none needed to defense part of answer, 312. PRECEPT when will issue in habeas corpus case, 1040. form of, 1040. how served, 1041. in injunction case, form of, 1090. PREJUDICE defects in pleadings disregarded if without, 207. ground for change of venue; see Change of Place of Trial. INDEX. 75? Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. PREPARATION FOR TRIAL, 357 to 470. PRESERVATION of evidence in case of contempts, 1000. PRESUMPTIONS in favor of proceedings of courts, 32, 129, 1208, 1369. legal must not be pleaded, 210. in favor of report of referee, 587. in favor of judgments and their conclusiveness, 658. in habeas corpus cases, 1042. in supreme court as to rulings of lower court, 1369, 1370. PRIEST exempt from jury service; see Jury. privileged communications to, not to be disclosed. See Privileged Communications. PRINCIPAL AND SURETY judgment against on stay of execution, 802. See Justification. duty of sheriff, 805, 806. when no stay allowed, 804. determining stay by surety, 804. exhausting property of principal first, 806. PRINTING abstracts, arguments, etc., 1396. PRIORITY of liens in attachment cases, 738. of chattel mortgage liens, 960, 961. of mechanics' liens, 1128. of liens in cases of real estate mortgages, 1160. of claims filed with an assignee, 938, 939. See Judgments; see Attachments. PRISONER how served with original notice, 181. See Pleading. need not verify pleadings, 332. PRIVATE STATUTE how pleaded, 237. PRIVATE WRITINGS production compelled how; see Books and Papers. See Evidence. PRIVILEGED from serving as jurors; see Jury. PRIVILEGED COMMUNICATIONS what are, 509. PROCEDENDO from supreme court, when to issue, 1357, 1393. form of, 1357. PROCESS in supreme court, effect of adjournment on, 20. See Clerk of District Court. PROCEEDINGS See Revivor; see Summary Proceedings; Auxiliary Proceedings; see Actions; Perpetuating Testimony; Remedies. PROCEDURE unifomity of, 16. when defendants not all served, 478. before referees, 585 to 587. unwritten in supreme court. 1403 to 1411. PRODUCTION OP BOOKS AND PAPERS See Books and Papers. 758 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. PROHIBITION See Nuisance; see Injunction. PROMISE See New Promise; see Implied Promise. PROMISSORY NOTE See Bills and Notes. PROOF of publication, how made, 190. under denials, 283. order of, 520, 521. See Pleading; see Trial; see Evidence; see Burden of Proof. PROPERTY See Real Property; see Personal Property; see Re- demption. PROTEST notarial, evidence of; see Evidence; see Notary Public. PUBLICATION original notice served by, 187. statute relating to must be strictly complied with, 188. when judgments rendered on service by can not be collectively attacked, 188. of affidavit for form of, 189, 190. requisites of, 189. proof of service by, 190. of notice on unknown defendant, 192. form of notice, 192. personal service suspends necessity of, 191. proof of, 435. how perpetuated, 436. judgments in case of notice by, 659. form of bond to abide order of court in case of service by, 659. re-trial of actions when judgment has been rendered by default on service by, 662. in actions of forcible entry and detainer, 1417. See Notice; see Unknown Defendants. PUBLIC BUILDINGS sub-contractor's lien on; see Mechanics' Liens and Claims. PUNITIVE DAMAGES See Exemplary Damages. PURCHASER at sheriff's sale of real estate, rights of, 1265, 1296. QUALIFICATIONS of referees, 583. in partition cases, 1192. form of, 1192. of receivers, 1243. form of bond, 1243. form of oath of, 1243. See Jury; see Justification. QUALITY OF ESTATE as to ownership and title, when to be pleaded, 214. See Pleading. QUANTITY when to be alleged, 229. denials of, 289. QUESTIONS leading, what are, when may be asked. 522. what may be raised by instructions. 551. form of propounded to garnishee, 772, 773. QUIETING TITLE See Action of Right, action to, 852, 853, 855, 864, 865, 866. INDEX. 759 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. QUO WARRANTO no action joined with, 199, 1228. object and purpose of the writ, 1224. when the action will lie, 1225. when it will not lie, 1226. commencement and prosecution of the action, 1227. pleading and practice in, 1228. form of petition in, 1229. form of verification of, 1229. trial and judgment, 1230. power of the court, 1231. when trustees appointed, 1230. duty of, 1230. liability of members of a corporation in case of judgment of ouster, 1230. QUORUM of supreme court, four judges constitute, 17. RAILROADS venue in actions against, 105, 108. actions against for personal injury, limitation of, 141. for double damages is not a statute penalty, 142. judgments against enforcing orders of commissioners, 631. liability for setting fires under former law, 880. under present statute, 881. of company operating a road, 882. contributory negligence, 883. evidence in such actions, 884. damages, how measured, 885. petition for damages by fire, form of, 886. killing stock, liability for, 887 to 894. form of petition in case of want of fence, 887. form of notice of the killing, 887. form of affidavit of the killing, 887. See Stock. of stock running at large, 888. of fencing depot grounds, highways, etc., 889. of failure to repair fences, 890. third persons, when liable to company for injuries to stock, 890. of double damages, 891. of the affidavit and notice, 892. practice, evidence, etc., 893. speed of trains of, 894. REAL ACTIONS See Actions of Right. REAL PARTY IN INTEREST must be plaintiff, 54. who is the real party in Interest, 54. See Parties; see Actions. REAL PROPERTY venue in actions relating to, 98. record of instruments affecting, evidence of, 438. action to recover; see Action of Right. proceedings in action to recover, 851. 854 to 869, 1412 to 1420. cancellation of contracts for sale of. 1157. See Appeals; see Partition; sep Actions: SPP Pleadings; see mortgaged Property; see Foreclosure of Mortgages. must be confined to issues, 524. 760 1XDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. RECEIVER an executive officer, 1232. when should be appointed, 1233. appointed in any civil action, 1234. not appointed for the benefit of strangers, 1235. when appointed without notice, 1237. of the application, 1236. form of notice of, 1237. form of acceptance of service of notice, 1237. of the petition, form of, 1238. in case of partnerships, 1239. of mortgaged property, 1240. of corporations, 1241. rights of third parties protected, 1242. qualification of, 1243. form of appointment, 1243. bond of, form of, 1243. form of approval of sureties on bond, 1243. form of oath of, 1243. powers and duties of, 1244. liability of, 1245. compensation of, 1246. can not be garnished, 1247. of appeals, 1248. RECOGNIZANCE not affected by failure of judge to open court, 27. RECORDS under control of court, 31. to be read and signed, 31. what to be kept by clerk, 44. impeachment and correction of, 47, 52. of lost records, 49. construction of, 51. nunc pro tune entries, 48. amendments of, made by order of court, 353. public, how proved; see Evidence. of courts how proved, 408, 409, 411. of acts of executive, how proved, 412. of proceedings of legislatures, 413. of marriages, how shown in evidence, 420. what deemed a part of, on appeal. 589, 591. how writings made part of. 589, 592. evidence taken in shorthand how made part of record, 589, 592. entries of judgments, 644, 670. caption to in supreme court, form of, 644. caption to in district court, form of, 644. reading of, 645. amending, 645. entry of judgment of, dismissal in, C48. forms of, 648. dismissal in vacation, 650. of judgments, 657. forms of, 657. of judgment by confession, 665. indexing of, 690. construction of, 691. nunc pro tune entries in, 691. lost, 691. of conviction in case of contempt, 998. should be complete in partition cases. 1207. INDEX. 761 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. RECORDS (continued) of supreme court, 1392. certification as a bill of exceptions, 589. correction of on appeal to supreme court, 1331, 1386. of chattel mortgages, 959. See Judgments. REDEMPTION rule as to time within which a junior mortgagee may redeem from senior mortgagee does not depend on adverse possession, 149. in case of foreclosure of mortgages and title bonds, 1159. what property is subject to generally, 1249. of the certificate of sale, 1250. form of, 1250. when made by the defendant, 1251. may be made by creditors, 1252. who is a creditor under the statute, 1253. by the holder of a mechanic's lien, 1254. in equity, 1255. what law is applicable^ to the sale, 1256. of creditors redeeming' from each other, 1257. computing the time of redemption, 1258. terms of, 1259, 1260. who obtains the property, 1261. mode of redemption, 1262. of settling controversies as to right to redeem, 1263. from sale in parcels, and of the interests of tenants in common, 1264. rights of the purchaser, 1265. of assigning the right to redeem, 1266. of the sheriffs deed, 1267. form of, 1267. form of when equity of redemption is sold, 1267. when it is constructive notice, 1268. of the sheriff's return, 1269. form of, 1269. form of when equity of redemption only is sold, 1269. form of statement to sheriff's return, 1269. damages for injury to property, 1270. REDUNDANT MATTER in pleadings stricken out on motion, 242. form of such motion, 242. REFEREES trial by, when, 579 to 587. trial to, by consent of parties, 579, 580. when court may refer causes to, for trial, 580. cause must be at issue, 581. what the order of reference may provide, 581. form of when made by the court, 581. must accept reference, 582. vacancies in, how filled, 582. decision of a majority binding, 582. must be sworn, 583. form of oath of, 583. powers of, 584. must sign bill of exceptions, 584*. may permit party to dismiss his action after it is submitted to, 584. procedure before same as in court, 585. 762 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. REFEREES (continued) report facts and conclusions of law separately, 586. when set aside on motion, 586. form of report, 586. judgment may be rendered on report of, 586. presumptions in favor of report, same as to court, 587. finding of, stands as a verdict of a jury, 587. exceptions to report, when and how taken, 587. when case will be sent back to referee, 537. form of oath of to determine limits of homestead, 1064. appointment of, to ascertain and report incumbiances in parti- tion case, 1188. of to make partition, 1190. form of commission to, 1190. See Partition; see Reference; see Homestead. REFERENCE of causes when may be ordered, 580. cause must be at issue, 581. referee must accept, 582. when cause to be tried, 581. procedure in cases of, 585. of the report, 586. See Referees. to determine limits of homestead, 1063. to ascertain amount of incumbrances in actions of partition, 1188. REGISTER duplicate receipts of used in evidence, 407. REHEARING petition for in supreme court, its requisites and when filed, 1376, 1395. argument on, 1377. action of the court thereon, 1378. See Appeals. RELEASE of joint wrongdoer, effect of, 89. of property; see Attachment. of claim of sub-contractor on public buildings and improvements, 1120. of real estate mortgages, 1161. pleading of specially; see Answer. RELEVANCY See Evidence. RELIEF facts stated do not entitle party to, ground of demurrer, 2G4. extent of granted in judgment, 635. See Petition; see Prayer. RELIGIOUS BELIEF witness can not be compelled to disclose, 512. REMANDING CAUSE by supreme court; see Appeals. REMEDY civil, definition of, 1, 3. classes of, 1. at law, by ordinary proceedings, 2, 5. in equity, by equitable -proceedings, 2, 5, 6, 7. special proceedings, 1, 3, 5. when none at law, 6. when both at law and in equity. 8. not merged in a public offense, 96. INDEX. 763 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. REMEDY (continued) of party for wrongful seizure of property under chattel mort- gage, 983. in case of landlord's lien, 1100. when partition not the proper, 1178. See Actions. REMITTITUR of part of judgment in supreme court, 1350. REMOVAL of an assignee, 943, 944. RENT See Landlord. adminstrator may sue for, when, 62. when heirs must sue for, 62. RENTS AND PROFITS actions for, by ordinary proceedings, 5. REPLEVIN AND DETINUE venue in, 100, 897. no action joined with except another cause of replevin, 199. when the action lies, 895. when the action will not lie, 896. of the parties in, 898. of the proceedings, 899. petition must be sworn to, 900. requisites and form of, 900. when it must allege service of notice of ownership, form of such allegation, 900. when such notice must be served before suit is brought, 896. of the bond, its requisites, 901. form of, 901. of the writ, counterparts, etc., 902. form of writ, 902. service of writ, manner of, 903. affidavit of concealment, form of, 903. delivery bond, requisites of, 904. form of, 904. form of approval of, 904. appraisers, when required, form of notice to choose, 904. form of appraisement, 904. form of oath to, 904. return of sheriff, made when, must show what, 905. form of, 905. of the verdict, its form, 572, 907. of the judgment, its requisites, 908. pleading, practice and evidence, 906. of the execution, 909. form of, 909. proceedings when property has been concealed, 910. of detinue, 911. form of prayer in, 911. REPLY is a pleading, 208. when allowed, 316. effect of filing, when not proper, 317. effect of failing to reply when it is necessary, 31 S. matters material to the petition can not be a"e2;9d in, 320. claims for damages can not be first made in, 320. what to consist of, 321. form of, 324. form to answer to petition on a policy of insurance, 324. any number of defenses may be pleaded in, 322. 764 LNTDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. REPLY (continued) of demurrer to reply, 323. when must be filed, 324. allegations deemed controverted, 324. must be verified when, 325. REPORT of referees, what must state, 586. form of, 586. presumptions in favor of, 587. of jury on sale of property as perishable, form of, 763. of referees in partition, form of, 1195. form of plat attached to, 1195. See Partition. of decisions of supreme court, 19. of an assignee, 936. REPRESENTATIVE CHARACTER party may sue in, 240. what must be alleged in petition in action in, 240. when pleaded, denial of, 290. REPORTER, SHORTHAND appointment and qualification of, 25, 36. duty of, removal of, 25. notes of how made part of record on appeal, 589, 593. certificate to complete record, 589. form of, 589. REPORTER OF SUPREME COURT election and term of, 19. to prepare decisions for publication, 19. RESIDENCE county of defendants, when actions brought in, 109. See Original Notice; see Service. RESTRAINING ORDERS when issued by supreme court, 1408. RES GESTJE when entries part of; see Evidence. RETURN of officer on original notice, 182, 183. forms of serving original notice, 182, 183. when may be amended, 185. sheriff liable for failing to, 185. defective can not be collaterally attacked, 185. proof of facts when officer's return has been lost, 186. . when deemed conclusive, 186. of notice to take depositions, 370. of depositions, how made, 391. of sheriff on writ of attachment, 768. form of, 768. effect of, 769. amendment of, 769. form and requisites of an order of replevin, 905. See Habeas Corpus; see Execution; see Certiorari; see Subpoena. REVERSAL See Appeals. REVIVOR of actions, form of notice to executor, 96. of judgments, 1271, 687. of the sheriff's duty, 1272. of the affidavit, 1273. INDEX. 7G5 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. REVIVOR '(continued) execution against surviving defendants, 1274. when execution may be quashed, 1275. proceedings when all the defendants are dead, 1276. form of petition to revive a judgment against an administrator, 1276. RIGHT, ACTION OF See Action of Right. RULE to produce books and papers, 424. form of, 424; see Books and Papers. to show cause in cases of contempt, 998. See Jury. RULES OF PRACTICE of district court, 29. power of judges to make, 29. See District Court. RULES OF PLEADING See Pleading. RULES OF SUPREME COURT See Appeals. adoption of, by supreme court, 13 < 9. what they are, 1379 to 1402. RUNNING AT LARGE when stock is, 888. SALE by an assignee, 942. form of petition for sale of a chattel, 250. report of jury recommending of perishable property, 763. of chattel mortgaged property, 979. form of bill of, 979. perpetuating evidence of the sale, 980. validity of chattel property, 981. of pledged chattel mortgage property, 987. of homestead, 1068. of real estate on mortgage foreclosure, 1154. See Partition; see Redemption; see Sheriff's Sale. SATISFACTION of mechanic's lien, form of, 1136. of real estate 'mortgage, 1154. form of, 1154. form of notice to, 1154. of judgment, when canceled, 1297. SCHOOL DISTRICT must sue in its corporate name, 69. SEAL of officers taking depositions. See Depositions. SEATS OF JUSTICE courts to be held at, 24. SECOND MORTGAGES valid, 965. SECONDARY EVIDENCE See Evidence. SECURITY for costs, when may be required, 695. See Costs. attorneys and officers of court can not become, 698. of additional, 698. effect of failure to give, 699. may be several actions on same in case of public officers, 872. TGG IXDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. SEDUCTION claims for assignable, 56. who may sue for, 71. SELECTION of homestead, 1060. SEPARATE ACTIONS may be prosecuted in case of misjoinder; see Misjoinder. SEPARATE ANSWERS See Answer. SEPARATE COUNTS each cause of action must be stated in, 248. must be numbered, 248. same cause of action stated in, 249. affirmative defenses -must be stated in, 310. See Petition; see Answer; see Counter Claim. SEPARATE TRIALS when allowed, 477. SEPARATION of witnesses, 505. discretionary with the court, 505. practice regarding, 505. SEPARATION OF JURY when allowed during trial, 557. SERVICE of original notice, when can not be collaterally attacked, 169. of original notice, made by whom, 172. how served generally, 173. on a partnership, 174. on agent of a corporation, 175. on an agent employed in an office or agency, 176. on municipal corporation, 177. on a county, 178. on minors, 179. on insane persons, 180. on prisoners in the penitentiary. 181. See Original Notice; see Return, of subpoena on witnesses, 362; see Subpoena, of notice to take depositions, 370. of notice to take depositions on commission, 375. of notice of filing depositions, 395. acceptance of notice to take depositions, 376. of notice in action of right, 856. of writ of replevin, 903. of notice of foreclosure and sale of chattel property, 977. of writ of habeas corpus, 1037. of precept in habeas corpus case, 1041. of attachment in habeas corpus case. 1045. of notice of hearing of motion, how made, 1164. form of acceptance of service of notice of application for the ap- pointment of a receiver, 1237. of notice of appeal. 1322. 1383. form of acceptance of, 1322. of abstract, 1338, 1386. SETTLEMENT of claims by an assignee, 941. SHERIFFS election and term of, 25. duty of, 805, 806, 1272, 25, 26. INDEX. 767 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420 SHERIFFS (continued) action against when barred, 144. duty of in attachment cases, 730, 764. See Attachment. when to take answer of garnishee, 771, 772. must administer oath to garnishee, 772. return under attachment, 768. form of, 768. liable if he takes the wrong property, 818. return on order of replevin, 905. See Execution; see Sheriff's Sale; see Original Notice; see Sheriff's Deed. SHERIFF'S DEED requisites and effect of, 1267. form of, 1267. form of when equity of redemption only is sold, 1267. when it is constructive notice, 1268. SHERIFF'S SALE what law is applicable to, 1256. See Execution; see Sheriff; see Sheriff's Deed, of notice of the sale, 1277. selling without notice, 1278. time and manner of sale, 1279. form of notice of sale, 1279. of postponing the sale, 1280. of the surplus arising from the sale, 1281. proceedings when property is unsold, 1282. form of venditioni exponas, 1282. effect of sale without notice to the defendant, 1283. form of notice, 1283. of plan of sale by defendant, 1284. when sale will be set aside, 1285. sale will not be set aside, 1286. sales may be set aside when purchaser fails to pay, 1287. sales set aside when defendant has no title, 1288. of the rule of caveat emptor, 1289. disposition of money and choses in action, 1290. satisfying judgments against an executor or decedent, 1291. form of petition to subject real estate to the payment of a judg- ment against an executor or decedent, 1291. form of notice of such proceedings, 1291. setting off mutual judgments, 1292. sale of leasehold interest, 1293. appraisement of personal property, 1294. form of notice to choose appraisers, 1294. form of appointment of appraisers, 1294. form of oath of appraisers, 1294. form of appraisement, 1294. of the return, 1295. rights of the purchaser and who may purchase, 129'i. return of purchase money canceling satisfaction. 1297. SHORTHAND REPORTER See Reporter, Shorthand; district court, Superior Court. notes of, how made part of record on appeal, 589, 533. SICKNESS of judge, court adjourned for, 28. SIGNATURE to pleadings and form of, 247. denial of to written instruments, 291, 292, 293, 294. 708 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. SIGNATURE (continued) when deemed genuine, 291. form of answer denying, 296. and seal of officer to deposition or affidavits, presumptive evidence of what, 434. verdict must be signed, 565. of judge to bill of exceptions, 598. SLANDER limitation of action for, 141. requisites of petition in action for, 236. See Libel. SPEED of trains, 894. SPECIAL verdict, when may be rendered, 568, 569, 570. interrogatories, when submitted to jury, 569, 570. form of finding on by jury, 572. SPECIAL TERMS may be held when, 24. SPECIAL PROCEEDINGS a class of remedies, 1. what classes of remedies are, 3. actions by, how prosecuted, 5. effect of error in kind of proceedings, 10. how remedied, 11. when objection waived, 12. of ordering a change in the proceedings, 15. uniformity of procedure, 16. SPECIES of personal property, pleaded, 212, 241. SPECIFIC See Pleading; see Motions; see Answers; see Denials. motion for more specific statement, when it lies, 243. form of motion, 243. demurrer must be, 271. denials, 286, 295, 298. Sea Attachments. SPECIFIC PERFORMANCE action for, when barred, 149. SPECIFIC PROPERTY when proper to allow as alimony, 1025. STATE statute of limitations does not run against, 13' \ can not be sued except by express statutory p.uthority, 253. legislature, proceedings of, how proved, 413. effect of affidavit taken out of the State, 437.. attachment for debts due, 757. bonds not required, 758. damages, 759. pleadings in such cases, 760. process must run in name of, 358. STATEMENT of claim in original notice, 168. more specific, when motion for lies, 243. form of, 243. of cause of action in pleading, 224, 248. must be of material facts only, 224, 225. not of evidence, 224. IXDEX. 769 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. STATEMENT (continued) of fraud in pleading, 227. should be none in pleading of matters of which courts take judicial notice, 226. implied promise need not be alleged in pleading, 228. time, quantity and value to be stated when, 229. right to sue should be shown by, in pleading, 232. of petition for a tort, 235. See Petition, of case by counsel, 502. of claim for mechanic's lien, form of, 1130. See Pleading; see Answer; see Reply. STATUTES See Limitation of Actions, pleading of, 237. amendment of, 354. printed copies admissible in evidence, 414. and rules regulating practice in supreme court, 1379 to 1402. STATUTE OP FRAUDS See Demurrer; see Evidence, contracts within, 452 to 459. effect of statutory provision on the contract, 458. part performance, 459. STATUTE OP LIMITATIONS See Limitation of Actions. STATUTE PENALTY limitations of actions for, 141. STAY See Executions. STAY BONDS See Executions. STOCK failure to set out notice in action for killing, ground of demurrer, 270. form of petition against railroad for killing, 887. form of notice and affidavit, 887. what is "running at large," 888. fencing at depot grounds, highways, etc., 889. of failure to repair fences, 890. of double damages, 891. requisites of the affidavit and notice, 892. speed of trains, 894. practice, evidence, etc., 893. STRUCK JURY how obtained, 500. STYLE of petition; see Petition. SUBMISSION to arbitration; see Arbitration; see Arbitrators, of causes in supreme court, 1390, 1406. setting submission aside, 1407. SUBPOENA must run in the name of "the State of Iowa," 358. issued by the clerk on request of either party, 357. to testify, form of, 358. duces tecum, 358. served by whom,- 357. how far witnesses can be brought on, 359. in case of garnishees, 359. fees of witnesses, 360. penalty for disobeying a, 361. civil liability to party injured, 361. mode of serving, 362. Vol. II. 49. 770 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. SUBPOENA (continued) prisoners as witnesses, 363. fees of sheriff for transportation of prisoner, 363. return of service, what must show, 364. form of in case of personal service, 364. form of where witness is not found, 364. when the return must be sworn to, 365. of the return of, 365. effect of party to the action failing to obey a subpoena, 366. when pleading will be taken as true, 366. failure to obey a contempt, 996. See Contempt; see Service; see Return. SUB-CONTRACTORS of claims of on public buildings and improvements, 1118, 1119, 1120. who are, 1140. lien of how preserved and how discharged, 1141. form of notice of filing claim of, 1141. form of bond to discharge lien of, 1141. extent of lien of, when filed after thirty days, 1143. SUBSTITUTION of parties, when permitted, 56, 58, 59, 60, 91, 92. when not permitted, 92, 93. of pleadings, when permitted, 356. SUBSCRIBING WITNESSES See Evidence. SUMMARY PROCEEDINGS when allowed, 1298. form of the proceeding, 1299. form of motion for, 1299. form of motion when the action is against an officer for refusing to pay over, 1299. of notice, 1300. form of, 1300. of the hearing, 1301. SUNDAY when writ of attachment will issue on, 714. when execution may be issued on, 795. when original notice served on; see Original Notice, when courts open on, 34. SUPERIOR COURTS establishment of, 35. its officers, 36. its terms, 37. its jurisdiction, 38. jurors in, 39. its abolition, 41. judgments of, how made liens, 39. 688. filing transcripts of in district court, 688. SUPPLEMENTAL pleadings, when permitted, 349. proceedings to executions; see Auxiliary Proceedings. SUPERSEDEAS bond, requisites of, 1324. form of, 1324. proceedings when defective, 1325. form of supersedeas, 1325. See Appeals; see Bonds. INDEX. 771 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. SUPREME COURT organization of, 17, 1380. number and classification of judges, 17, 1380. terms of, 18, 1382. clerk of; see Clerk of Supreme Court, reporter of; see Reporter of Supreme Court, adjournment of, 20, 1382. division into two sections, opinions of judges, 21. jurisdiction of appellate in chancery, 22, 1381. correction of errors at law, 22, 1381. supervisory control over inferior tribunals, 22, 1381. original in certain cases, 22, 1381. may suspend or revoke attorney's license, 22, 1381. may admit persons to practice law, 22, 1402. when amount in controversy does not exceed one hundred dollars, 22, 1381. will not review errors in a cause where venue has been er- roneously changed, 135. amendments after trial by, 346. action of, on allowance of amendments below. 348. review of question of burden of the issue by, 539. setting aside verdicts in, 615. advancing causes in, 1385, 1404. '' causes, how submitted, 1390, 1406. submission set aside, when, 1407. how appeals taken to; see Appeals; see Abstracts; see Argu- ments. SURETIES effect of limitations as to, 139. justification of. 727, 802. form of, 727, 802. preventing or determining the stay of execution, 804. liability of on official bonds, 873. See Principal and Surety; see Security; see Justification. SURPRISE new trial on ground of, 611. SURPLUS arising from sale of mortgaged real estate, how applied, 1152. SURRENDER court enforcing of property of defendant in execution, discovered in supplemental proceedings, 850. SURVIVING PARTNER may sue, 219. TALESMAN as jurors, 495. how and when may be selected, 495. TELEGRAPH actions against telegraph companies, venue of, 105, 108. TELEPHONE actions against telephone companies, venue of, 105, 108 TENANTS possession of one in common is the possession of all, 149. in possession, liability of for rents in action of right, 863. in common, property of sold, how redeemed, 1264. TENDER form of answer, pleading, 313. 772 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. TERM trial, what is, 476. See Pleading. TERMS of redemption, 1259, 1260. TERMS OF COURT supreme court, 18, 1382. of district court, how fixed, 24. of superior court, 37. when special term may be ordered, 24. when term adjourned by written order, 28. original notice must fix term at which defendant is to appear, 167. TESTIMONY See Evidence. TIMBER measure of damages for burning, growing, 885. TIME of applying for change of venue, 125. of serving original notice and filing petition, 172. of appearance of defendant, 172. when must be alleged, 236. of answering interrogatories to pleadings, 466. to make application for continuance, effect of, 480. of making order of reference, 581. of taking an appeal, how computed, 1313. TITLE how alleged, 214. to property, how affected by re-trial of cause, 663. See Pleading; see Action of Right. TITLE BOND See Foreclosure of Mortgages. TOOLS See Exemptions. TORT limitation of actions for, 141. statements of petition in action for, 235. proceedings in attachment, when demand is founded on, 717. when action in attachment based on, 719. See Pleading; see Petition; see Attachment; see Actions. TRANSCRIPT when must be filed in cases of cnange of venue, 131. execution on form of, from justice of the peace, 799. of record on appeal to supreme court; see Appeals. TRANSFER of cause, when made, 11. TRESPASS what is, 1302. when the action lies, 1303. who may maintain, 1304. when it will not lie, 1305. form of petition for, 1306. of practice, 1307. TREASURER, COUNTY action against, when barred, 144. TRIAL of equitable issues in law actions, 13, 474. when postponed on account of failure to answer interrogatories to pleadings, 468. what is a, 471. INDEX. 773 Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. TRIAL (continued) issues of law first tried, 471. what issues tried by a jury, 471. when an issue of fact arises, 472. equitable issues, how tried, 473. order of trial, 474, 475. term, 476. separate, when allowed, 477. proceedings, when defendants are not all served, 478. of challenges to jury; see Challenge. jurors, number of, 497. when jury trial will be waived, 574. of equitable actions, 577, 578. See Courts; see Appeals. incidents of, 465 to 502. to the court, 574 to 578. by referees, 584 to 587. of actions for divorce to annul marriages and for alimony, 1008. in habeas corpus case, 1048. In actions of quo warranto, 1230. amendment after, in supreme court, 346. TRUST DEED See Foreclosure of Mortgages. TRUSTEE when may sue in his own name, 64. See Quo Warranto. UNCONSTITUTIONAL sections 3487, 3488 and 3489, of code in part, 93. UNDUE INFLUENCE change of venue for, 119. uniformity in procedure, 16. UNINCORPORATED SOCIETY who may sue for, 64, 68. UNITED STATES COURTS judgments of liens, when; see Conflict between Courts; see Judg- ments. UNLAWFUL DETENTION See Replevin and Detinue. UNKNOWN DEFENDANTS how sued, 84. how served with notice, 192. form of notice, 192. service of how proved, . 192. of petition in case of, 222. UNLIQUIDATED DEMAND limitation of action on, 141. UNWRITTEN PRACTICE in the supreme court, 1403 to 1411. USURY form of answer, pleading, 313. VACANCIES in referees, how filled, 582. VACATION judgment may be entered in, 650. judge may punish contempt in, 1002. and modification of injunctions, 1087. appeal from judgment rendered in, time of, 1313. See Conveyance. 774 INDEX. Volume I, Sections 1 to 770; Volume II, Sections 771 to 1420. VACATION OP JUDGMENTS when judgments will be modified or vacated, 1209. in case of mistake, neglect or omission of the clerk, 1210. for fraud, 1211. for erroneous proceedings against a minor, 1212. or a person of unsound mind, 1212. when one of the parties dies before judgment is rendered, 1213. for unavoidable casualty or misfortune, 1214. for error in judgment shown by a minor within one year after arriving at full age, 1215. when courts of equity will, 1216. when the application may be by motion, 1217. when it must be by petition, 1218. when grounds are discovered after term, 1219. pleading, practice, etc., 1220. must be a valid defense to the action, 1221. form of petition to vacate, 1221. Injunction may issue to suspend proceedings, 1222. of the judgment, 1223. VALUE when to be plead, 229. how proven; see Evidence. VARIANCE between notice and petition, effect of, 168. amendments in cases of, between pleadings and proof, 345. question of, can not be first raised in the supreme court, 1368. VENDITIONI EXPONAS See Execution. VENDOR actions to enforce lien; see Venue. VENUE of actions, 98 to 111; see Change of Place of Trial. of actions to recover real property, 98. of partition of real property, 98. for injuries to real property, 98. In foreclosure cases, 99. in foreclosure of mechanics' liens, 99. to recover specific personal property, 100, 897. for fines, penalties and forfeitures, 101. against public officers, 101. on official bonds, 101. in actions aided by attachment, 102. in garnishment proceedings, 103. in cases at place where contract is to be performed, 104. of actions against railway, telegraph and telephone com- panies, 105. In actions against construction companies, 106. in actions against insurance companies, 107. in cases of suits growing out of the business of an office or agency, 108. in cases of personal actions, 109. in actions for divorce, 110. of actions to enjoin judgments, 111. VERDICT when rendered after close of term, 30. of majority of jury. 499. manner of finding, 564. must be in writing and signed bv the foreman, 565. error in may be corrected, 565, 567. INDEX. 775* Volume I, Sections 1 to 770; Volume II, Sections "771 to 1420. VERDICT (continued) may be put in form by the court, 565. when sufficient in form, 565. of polling the jury, 566. when it may be sealed, 567. j may find a general or special verdict, 568. when judgment may be rendered on special, 568, 570. when special finding controls verdict, 570. when damages must be assessed by, 571. forms of for plaintiff, 572. for defendant, 572. for intervenor, 572. for plaintiff in action of replevin, 572. of special finding of facts, 572. when, must find value of property, 572. determined by chance, ground of new trial, 608. affidavits of juries, when received to impeach verdict, 609. received to uphold, 609. effect of use of intoxicating liquors on, 610. not sustained by the evidence, new trial, 614. setting aside in supreme court, practice, 615. judgment on special, 637. judgment on, form of, 638. notwithstanding verdict, 639. when may be directed by court, 648. in actions of right, what may contain, 860. requisites of, in replevin, 907. VERIFICATION form of, to action on account, 250. when reply must be verified, 325. when pleadings need not be verified; 332. answer of a guardian, executor or prisoner need not be, 332. pleading controverting answer of garnishee need not be, 332. not required to action grounded on personal injury, 332. not required to a reply in habeas corpus, 332. not required to amendment to pleading, 332. need not be when statements might subject party to criminal prosecution, 332. when pleading is verified, all subsequent pleadings must be, 333. must be verified in cases of replevin, 333. habeas corpus, 333. injunction, 333. attachment, 333. forcible entry and detainer, 333. in actions to quiet title, 333. in actions to enforce landlord's lien, 333. in other cases, 333. to what the verification applies, 334. what the affidavit must state, 334, 335. by whom must be made, 335. when by agent or attorney, 335. when by a corporation, 335. may be amended, 334. of averments of competency, when necessary, 335. what the certificate must state, 336. form of verification by a party. 336. by an agent or attorney, 336. in case of attachment, 336. by an agent or attorney in other cases, 336. by one not a party, agent or attorney, 336.