1. ON COUNTY WARRANTS. The contract of a guarantor of the payment of a
county warrant is absolute, that the warrant will be paid when due and
presented. Griffin v. Seymour, 30.
1. LOCATION OF ROAD. The location of a road, by a County Court over a
route different from the one described in the petition, and in the report
of the commissioners, is an irregularity which could be corrected on
appeal, but will not be treated as an order made without jurisdiction.
Davenport Mutual Savings Fund and Loan Association v. Schmidt, 213.
1. CONVEYANCE OF THE HOMESTEAD. It is not essential to the validity of a
mortgage or deed of trust conveying the homestead, that the grantors
state explicitly that it is the homestead which they wish to encumber:
(re-affirming Babcock et ux. v. Hoey, 11 Iowa, 375.) O'Brien et ux. v.
Young, 5.
1. STATUTE AND COMMON LAW. The provisions of the Code of 1851, touching
the rights of husband and wife, supersede the rules of the common
law relating to the same subject only to a limited extent. Duncan v.
Roselle et ux., 501.
2. SAME: WIFE'S EARNINGS AFTER MARRIAGE. Money or property acquired
by the labor and industry of the wife, during coverture, vests in the
husband, and is liable for his debts. Id.
3. SAME: When the wife acquires real estate by her own labor, during
coverture, and takes a conveyance of the same in her own name, she
thereby becomes a trustee, holding the same for her husband and his
creditors. Id.
4. FRAUD: REPRESENTATIONS TO THE PUBLIC. To subject the property of the
wife to the satisfaction of the debts of the husband, for the reason that
he has held himself out to the world as the real owner, and the wife has
contributed to the fraud thus practiced, it must be made to appear that
the representations were relied upon, that the assumption of ownership
was of a character calculated to mislead and deceive the public, or that
the complaining creditor, at least, was deceived and misled. Lyman et
al. v. Cessford et al., 229.
ILLEGAL VOTING.
See CRIMINAL LAW, 3, 5, 7; INDICTMENT, 2.
1. NAMING OFFENSE. When an indictment charged a defendant "with the
crime of nuisance," it was held to be sufficient to designate the name
of the offense, when the language of the charging part of the indict-
ment described the offense defined by § 1564 of the Rev. of 1860.
The State of Iowa v. Ansaleme, 44.
2. ILLEGAL VOTING. In an indictment for illegal voting it is not necessary to
allege that candidates for any particuiar office were voted for, or the
names of the persons voted for. The State of Iowa v. Minnick, 124.
1. PETITION FOR INJUNCTION. That a petition for an injunction is addressed
to the Judge of the District Court generally, and to the Judge of the
County Court, who is asked to order the writ, as to the part relating to
such order, is no sufficient cause for dissolving the same on motion.
Way v. Lamb et al., 79.
2. INJUNCTION BOND. An injunction to restrain the collection of a judgment,
on the ground that defendant had a good defense which he was pre-
vented from setting up in the action in which it was recovered, by the
fraudulent representations of plaintiff's attorney, does not seek to enjoin
proceedings in a civil action, within the meaning of § 3778, Rev. of
1860 ($ 2194, Code of 1851), and the bond need not contain an under-
taking "to pay any judgment ultimately to be recovered.” Id.
3. JUDGMENT AT LAW. A court of equity will not enjoin the execution of a
judgment at law, when the complainant or judgment defendant fails to
show a meritorious defense to the cause of action on which it was
recovered. Id.
4. DISSOLUTION OF INJUNCTION. When the equities alleged in a petition for
an injunction are substantially, plainly and fully denied in the answer,
the Court may sustain a motion to dissolve the injunction. Taylor et ux.
v. Dickinson et al., 484.
See CONTINUANCE, 25; JURISDICTION, 3.
1. ORAL INSTRUCTIONS. It is erroneous to orally explain or modify instruc-
tions given to a jury. Head & Metzger v. Langworthy Bros., 235.
2. JURY MAY TAKE INSTRUCTION. The jury may take the instruction of the
Court with them when they retire to consider upon their verdict. Id.
3. DUPLICATE INSTRUCTIONS. The refusal of the Court to give an instruction
asked by a party is not good ground for reversal, when the record
shows that the same instruction was substantially presented in the
charge of the Court. Denton v. Lewis, 301; The State of Iowa v. Sheeley,
403; Cousins v. Westcott, 253.
4. AGREEMENT AS TO INSTRUCTIONS. When instructions asked by one party
were given by the court, under an agreement between the parties that
they should be decisive of the case, the Supreme Court will not review
the ruling of the court in refusing additional instruction asked by the
other party. Parsons v. Hedges, 119.
5. APPLICABILITY OF INSTRUCTIONS. The Supreme Court will not review
the ruling of the court below refusing to give instructions which were
correct as abstract propositions of law, when the entire evidence is not
embraced in the record, and that portion which is presented does not
show their pertinency. Lauman, Hedges & Co. v. Nichols, 161.
6. ISSUES. The Court, and not the jury, should determine the issues made
by the pleadings. (McKinney v. Hartman, 4 Iowa, 154.) Pharo v. John-
son, Ex'r, 560.
See BILL OF EXCEPTIONS, 4; MEASURE OF DAMAGES;
1. SALE OF INTOXICATING LIQUOR. A contract for the sale of intoxicating
liquors executed beyond the limits of this State, if made for the pur-
pose of enabling the vendees to violate the act entitled "an act for the
suppression of intemperance," approved January 22d, 1855, is void; but to sustain such a defense, such purpose on the part of the vendor, at the time of the sale, must be made to appear by the evidence. Whitlock v. Workman & Co., 351.
1. RATE. A written agreement being silent as to interest, the creditor is entitled to recover on the amount due thereon, interest at six per cent. Myers v. Smith, 181.
1. JUDICIAL NOTICE. The courts take judicial notice of the day upon which the general election for the current year is held, and of the officers to be voted for at such election. The State of Iowa v. Minnick, 124.
1. INTERFERENCE BY COURT OF EQUITY. A court of equity will not disturb a judgment on a promissory note executed by a firm and another party, on the ground that the judgment is against one member of the firm and their codefendant, instead of being against the firm, when it appears that it was entered by agreement, and it is not shown that the party complaining has been prejudiced thereby. Crenshaw & Hall v. Wickersham, 154.
2. JUDGMENT BY CONFESSION: STATEMENT. A statement for a judgment by confession, showing that the indebtedness upon which the judgment is founded was for "sundry articles of dry goods," and "a bill of groceries," without further detail, is sufficient in its statement of the consideration of the indebtedness. Daniels & Co. v. Claflin, 152.
3. JUDGMENT AGAINST EXECUTOR. A personal judgment against a defendant who is sued as an executor is erroneous. Lawton et ux. v. Buckingham, 22.
1. REQUISITE. Under § 2913 of the Revision of 1860, the officer making a certificate to an affidavit should state therein not only that it was signed in his presence, but that it was sworn to before him. Way v. Lamb et al.,
1. OF COUNTY COURT. The filing of a petition and the service of notice confers jurisdiction upon the County Court.. Davenport Savings Fund and Loan Association v. Schmidt, 213.
2. SAME: PRESUMPTION. After the jurisdiction, of the County Court attaches, every presumption is in favor of the regularity of its proceedings. Id. 3. INJUNCTION. The District Court of a county in which an execution issued from the Supreme Court is levied upon real property, has jurisdiction to enjoin the sale thereunder, upon a proper showing being made. Davis v. Bonar & Kearns, 171.
4. DIVORCE. The District Court, having jurisdiction to enter a decree of divorce embracing an order relating to the children and property of the parties, retains power to modify the same, so long as it remains unexe
cuted, notwithstanding both parties may, after the entry of the decree,
and before the modification, become residents of another State. Andrews
v. Andrews, 424.
5. COSTS. The District Court has no power to retax costs in a chancery
cause after final decree therein by the Supreme Court. Levi v. Karrick,
444.
1. SELECTION OF JURORS. That the lists of grand and petit jurors selected
by the judges of election in the several townships of the county, and
accompanying the proper election returns, were not authenticated by a
formal certificate, is not, in the absence of fraud, sufficient cause for
setting aside an indictment. The State of Iowa v. Ansaleme, 44.
2. CHALLENGE TO JUROR. That a juror has served on a trial jury which con-
victed another defendant for an offense similar to the one charged in
the indictment, is not a good cause of challenge under § 4771 of the
Revision of 1860. This cause of challenge applies only to cases in
which two or more persons have been jointly indicted for the same
offense. and have severed in their trials; and not to causes in which
the offense is necessarily single and cannot be committed jointly with
another. The State of Iowa v. Sheeley, 404.
2 MUNICIPAL DEBT: LIMITATION. The limitation on the indebtedness of the
city of Keokuk, provided by section 31 of the original charter, approved
December 31st, 1848, and section 17 of the amendments thereto, ap-
proved January 22d, 1853, applies to indebtedness created by borrow-
ing money on the credit of the city, and not to debts created by making
municipal improvements. Rice, Ex'r, v. The City of Keokuk, 579.
1. MISTAKE IN MORTGAGE AND JUDGMENT LIEN. The lien of the subsequent
judgment creditor, in this State, is not paramount to the lien or equity
of a prior mortgagee, as to lands intended to be mortgaged, but which,
by accident or mistake, were misdescribed. Welton v. Tizzard, 495.
2. SAME: DILIGENCE. The lien of a judgment attaches to an equitable inte-
rest in real estate, and it may be subjected to the satisfaction of the
judgment by apt proceedings in chancery for that purpose, but cannot
be thus subjected by proceedings at law. A junior judgment creditor,
by first instituting equitable proceedings to subject the property to the
payment of his debt, acquires a priority of lien over a senior judgment
creditor who is less diligent. Bridgman & Co. v. McKissick & Bone, 261.
See MORTGAGE, 5, 6; VENDOR AND VENDEE, 2, 3.
1. APPEAL: ACCEPTANCE OF TENDER: LIS PENDENS. A decree in foreclosure
declared a note and the mortgage executed to secure it usurious, and
ordered that the plaintiff should recover the principal sum loaned, and
the school fund, the interest thereon, at the rate of ten per cent; the
principal was in court, by the tender of defendant, and within a few
days was accepted and receipted for by the plaintiff; the sum decreed
to the school fund and the costs of suit were paid. Six months after
the entry of the decree the defendant sold a portion of the land
described in the mortgage; after which the plaintiff removed the case
to the Supreme Court, by appeal, in which the decree below was
reversed, and a decree entered foreclosing the mortgage for the entire
sum claimed thereon. It was held, that the purchaser was not charged
with notice lis pendens, and that the injunction restraining the sale of
the lands described in the mortgage, but sold after the acceptance
of the sum tendered, and before appeal, should not be dissolved.
Davis v. Bonar & Kearns, 171.
2. NOTICE LIS PENDENS. To render a pending action notice lis pendens, it
must be duly, constantly and continuously prosecuted. (Ferrier v.
Busick, 6 Iowa, 258.) Id.
1. JURISDICTION OF DISTRICT COURT. The District Court has power to enforce,
by writ of mandamus, the discharge of an official duty, involving no
exercise of discretion, by an executive officer of the State. Bryan v.
Cattell, 537.
2. SAME: AUDITOR OF STATE. The District Court may, by writ of manda-
mus, compel the Auditor of State to issue his warrant on the Treasurer
of State for a sum due a public officer on his salary. Id.
1. APPLICABILITY OF INSTRUCTIONS. When the pleadings and evidence
showed that a debtor transferred to a third party certain goods and
accounts in consideration of his assuming his liability to the creditor,
and that such third party was induced, by the false and fraudulent
representations of the creditor, to take the goods and accounts, and
execute his promissory note to such creditor for the amount of the debt
thus assumed, but it did not appear whether the goods were absolutely
sold, or taken as collateral security only, it was held, that the Court
erred in instructing the jury to find for the defendant, if the difference
in value between the goods and accounts, as represented, and their
real value was, in fact, equal to the balance due on the note. Steven-
son v. Greenlee, 96.
1. PARTY. It is not necessary to make a mortgagee a party to a proceeding
to enforce a mechanic's lien, in order to bar or cut off his right to
redeem the premises to which it attaches. The adjudication of a
mechanic's lien, and the sale of the property thereunder, concludes
the parties and others claiming through or under them. The State of
Iowa v. Eads et al., 114.
2. REDEMPTION. The law relating to redemption of real estate sold under
execution, applies to sales made in the enforcement of a mechanic's
lien. Id.
1. DEFECT IN EXECUTION OF MORTGAGE. A subsequent grantee of mortgaged
property, who has purchased the same, assuming the payment of such
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