SHERWIN, J. The plaintiff is the admin- and the debt secured thereby, and it then istrator of the estate of James Thomas, de- became necessary for the plaintiff to meet ceased. The defendant Mary E. Brookhart the prima facie case thus made. This he is a daughter of said James Thomas, the could not do without proving the facts conwidow of Charles A. Brookhart, deceased, nected with such release. In Kuen, Execuand the mother of her codefendants. James tor, v. Upmier, 98 Iowa, 393, 67 N. W. 374, Thomas was, in his lifetime, the owner of we had a case where the foreclosure of a certain real property that he conveyed to mortgage was sought, and where precisely Charles A. and Mary E. Brookhart, his the same question that we are now dealing daughter and her husband. He took from with arose, and it was said: "The release said grantees notes covering the purchase of itself is prima facie evidence of payment. price of the land so conveyed, which were In Fleming v. Parry, 24 Pa. 47, speaking of secured by mortgage on the land. This ac- releases, it is said: 'Prima facie, they would, tion was brought to foreclose this mortgage. | indeed, import extinguishment of the debt The petition first filed alleged that the notes as well as the mortgage, and the burden of and the mortgage were in the possession of showing that they were not so intended was the defendants and that the mortgage had on the creditor.'" Quoting, then, from been canceled of record; the petition stat-Jones on Mortgages, it was said: “A deed ing that the mortgage was canceled by of release in the ordinary form James Thomas, the mortgagee named therein, "for reasons which at the time appeared to him to be good and sufficient." The plaintiff was then required by the court to state what reasons actuated the cancellation of the mortgage by James Thomas, and in answer to such requirement he amended his petition, setting up the fact that tax ferrets had been employed by the authorities of Muscatine county and had discovered the mortgage in question and that it had not been returned for taxation, and that to avoid the taxation thereof the said James Thomas and Charles E. Brookhart, one of the makers of the mortgage, entered into an agreement whereby the mortgage should be canceled, and that it was canceled by said James Thomas in accordance with said agreement. After the plaintiff had filed this amendment, the defendants demurred there to on general grounds, raising the question that the petition as amended pleaded an illegal transaction, and therefore defeated the relief asked by the plaintiff. contains an express acknowledgment of the HOLLAND v. KELLY. The sole question before us is whether the facts pleaded are sufficient to deny the plaintiff the relief prayed. We think there can be no serious doubt about the matter. In fact, the plaintiff himself concedes that the transaction as pleaded by him was illegal, and that it would be sufficient ordinarily to prevent a recovery; but he seeks to avoid the effect of such admission by taking the ground that the cancellation of the mortgage did not in fact or in law affect the rights between the mortgagor and mortgagee, and this for the reason that the recording of the mortgage was unnecessary as, between the parties thereto. The trouble with the appellant's contention is this: While it was not necessary as between the parties to the mortgage that it be recorded, yet when it was recorded, and a release thereof was made, either on the record of the mortgage or by a properly executed and independent instrument, such release became prima facie evidence of the satisfaction of the mortgage defendant's motion. Affirmed. (Supreme Court of Iowa. Nov. 21, 1910.) APPEAL AND ERROR (§ 977*)-REVIEW-ORDER GRANTING NEW TRIAL. An order granting a new trial after verdict will not be reversed, unless it affirmatively appears that there was an abuse of discretion, especially where the motion was based on numerous grounds, on the merits of some or all of which the trial court was in a better position to pass, and was sustained generally. Error, Cent. Dig. §§ 3860-3865; Dec. Dig. § [Ed. Note. For other cases, see Appeal and 977.*] Appeal from District Court, Johnson County; R. P. Howell, Judge. Action at law to recover possession of certain certificates of deposit alleged to be a part of the estate of Michael Kelly, deceased, and to be wrongfully detained by the defendant. The plaintiff appeals from the ruling of the trial court setting aside a verdict in his favor and granting a new trial on the Wade, Dutcher & Davis and O. A. Byington, for appellant. Ranck & Bradley and J. J. Ney, for appellee. that upon a full examination of the record we find no sufficient ground to justify us in saying that the trial court erred in the ruling complained of by the appellant, and it is therefore affirmed. STATE v. PLATTS. (Supreme Court of Iowa. Nov. 21, 1910.) 1. BURGLARY (§ 41*)—EVIDENCE. In a prosecution for burglary, evidence held to sustain a conviction. [Ed. Note.-For other cases, Dec. Dig. § 41.*] see Burglary, 2. CRIMINAL LAW (§ 814*) - INSTRUCTIONS THEORY OF ACCUSED. PER CURIAM. That the defendant, Catherine Kelly, has possession of certain certificates of deposit formerly owned and held by Michael Kelly in his lifetime, is conceded; but she claims to have become, and to be now, the rightful owner and holder of said instruments by virtue of a gift made to her by the said Michael before his death. This defense is denied by the plaintiff, who further alleges that at the time of the said gift Michael Kelly was of unsound mind. The cause was tried to a jury, which returned a verdict in favor of plaintiff for the possession of the papers in controversy. After the return of the verdict, defendant moved to set it aside and for a new trial. The motion contested the sufficiency of the evidence to sustain the finding of the jury, and assigned some 20 other grounds for the order requested, including numerous alleged erroneous rulings by the court, and various acts of alleged mis-struction thereon. conduct by plaintiff's counsel, as well as the [Ed. Note. For other cases, see Criminal alleged illness of defendant's counsel, where- Law, Dec. Dig. § 814.*] by he was unable to properly conduct the defense and protect his client's interests. This motion was at first denied, but on subsequent application made at the same term for a reconsideration of the ruling it was sustained, and a new trial ordered. The plaintiff appeals. We shall not undertake any review of the evidence, or of the several rulings and alleged errors assigned as grounds for defendant's motion for a new trial. The record presents no peculiar facts or circumstances to take the case from under the familiar rule applicable to appeals from orders for new trial after verdict. Such orders-as we have had very frequent occasion to say-will not be reversed on appeal, unless it affirmatively appears that in granting them the trial court has abused its discretion. This is especially true where the motion is sustained generally upon numerous grounds, on the merits of some or all of which the trial court is in better position to pass than is this court upon appeal. It may well be that, while no one ruling in itself involves an error to justify the setting aside of a verdict, yet when taking all of the exceptions together and considering them in connection with the trial court's knowledge and observation of the course and conduct of the trial it may properly conclude that the moving party has not had a fair trial and is entitled to another hearing. Royer v. Plaster Co., 126 N. W. 169; Dewey v. Railroad Co., 31 Iowa, 373; Sprayer v. Coal Co., 125 N. W. 185. In view of the fact that another trial is to be had, we do not go into the record to recite or discuss the testimony relied upon by the respective parties. It is enough to say Where, in a prosecution for burglarizing a drug store and stealing liquors therefrom, it was urged that accused was too drunk to commit any not know where the liquor came from, and had crime, but his only explanation was that he did nothing to do with handling the liquor until it was set down in his house, such evidence was not sufficient on which to base a defensive theory that the liquor was brought to the cabin of accused by another, and to authorize an in Appeal from District Court, Hardin County; R. M. Wright, Judge. Indictment for burglary. Verdict and judgment of conviction. Defendant appeals. Af firmed. Chas. A. Rogers and N. S. Carpenter, for appellant. H. W. Byers, Atty. Gen., and Charles W. Lyon, Asst. Atty. Gen., for the State. EVANS, J. On the night of November 5, 1909, the drug store of one C. T. Reed, at Steamboat Rock, was broken into and a considerable quantity of intoxicating liquors was stolen therefrom. The liquor so stolen was contained in pint and half-pint bottles, about 100 in number. The defendant was suspected of the offense. A search of his room, under a search warrant, disclosed more than 90 bottles of liquor, which were identified by ・ Reed as being the property taken from his store. At the time of the search, the defendant was found in a drunken condition lying on a cot. "He had a bottle under the pillow and some under the cot. He had some lying on the pillowcase and some in a box." It is urged, in his behalf, that he is an "alcohol fiend," and that he was too drunk to commit any crime, and that the evidence is insufficient to sustain the verdict. We cannot set out the evidence in detail. We have no doubt of the sufficiency of the evidence to sustain the verdict. The defendant was a witness in his own behalf. He did not in terms deny the burglary. His only explanation of the possession of the liquor is the following: "I do not know where that liquor came from. I had nothing to do with the handling of the liquor in any way, shape, | Francis, 129 Iowa, 62, 105 N. W. 360; Brador form until it was set down in the house." ley v. Burkhart, 139 Iowa, 323, 115 N. W. 597, Complaint is made that the trial court failed 130 Am. St. Rep. 328. There is, in our opinto call the attention of the jury to the defend-ion, no competent testimony that the true ant's "theory as to the possession of the line between the two pieces of the land is at goods." We are unable to discover any the- any other place than where the parties subory in his testimony. Counsel suggest that stantially agreed that it was prior to that his theory was that the liquor was brought time, and upon which they erected a fence to his hovel by another. There is nothing in to mark the line. Moreover, more than 10 the evidence upon which to base such a theory years before the commencement of this suit in an affirmative sense. In a negative sense, plaintiff's grantor erected a barn substantialit necessarily inhered in the case. There is ly upon the true line now claimed by plainevidence which has a slight tendency to show tiff, and occupied and used his property with that the defendant had assistance. But the reference to this line, with the acquiescence defendant himself testified to nothing of that and consent of the defendants and their kind. grantors. The line fixed by this barn was also acquiesced in by these parties some years thereafter, if not before, by the construction jointly of the fence to which we have referred. The barn to which we have referred was, for convenience, moved by plaintiff some four or five years before this action was commenced; but the fence was permitted to remain where it was originally constructed. There is also testimony from which the trial court was justified in believing that a permanent fence was erected along the line claimed by plaintiff and acquiesced in by all the parties more than 10 years before the commencement of this action. Counsel suggest that certain numbered instructions are inaccurate and erroneous; but they do not argue the question. We have examined the instructions referred to, and discover no error therein. We think the instructions fully safeguarded the rights of the defendant. He appears to have had a fair trial in all respects, and we are impressed that the verdict could not properly have been otherwise. The judgment below must be affirmed. Affirmed. [Ed. Note. For other cases, see Boundaries, Cent. Dig. § 193; Dec. Dig. § 37.*] Appeal from District Court, Johnson County; R. P. Howell, Judge. Suit in equity to establish the boundary line between plaintiff's and defendants' property, and to restrain defendants from removing a fence upon a certain line. A temporary writ of injunction was issued, which, upon final hearing, was made perpetual. Defendants appeal. Affirmed. O. A. Byington, for appellants. Dutcher & Davis, for appellee. Wade, DEEMER, C. J. The question in the case is the true boundary line between certain tracts of land owned by the parties to the action. Plaintiff claims that the line is at a given place, because it is the true one; that, whether the true one or not, defendants have acquiesced therein for more than 10 years; and that he is entitled to claim thereto by adverse possession for the statutory period. These claims are all denied by defendants. Again, by agreement of parties the trial court went upon the premises and examined the nature of the fences and improvements, taking into account what he saw as original and independent testimony. There is, as we view it, an entire absence of any testimony showing that the line so fixed is not the true one, or was not believed to be the true line, or that there was any mistake on the part of either party or his grantors. The case seems to have been correctly decided, and the decree must be, and it is, affirmed. NOLAND & COLLIGAN v. SICKLER et al. (Supreme Court of Iowa. Nov. 15, 1910.) 1. JUSTICES OF THE PEACE (§ 145*)-APPEAL -AMOUNT INVOLVED. Where an original notice before a justice of the peace asked for $25, with interest after August 24th, the return date thereof, and there was postponement until September 7th, when judgment was had for plaintiff, it was appealable, though the amount, with the interest asked, was only a few cents above the amount fixed by statute. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 479-489; Dec. Dig. § 145.*] 2. JUSTICES OF THE PEACE (§ 145*)—APPEAL— AMOUNT INVOLVED. Plaintiff was not entitled to have the notice so construed as to ask interest from the date of judgment, in order to render the judgment unappealable on the ground that such was his intent. The law of the case is well settled by previous decisions. O'Callaghan v. Whisenand, the Peace, Cent. Dig. §§ 479-489; Dec. Dig. § [Ed. Note. For other cases, see Justices of 119 Iowa, 566, 93 N. W. 579; Laughlin v. 145.*] Appeal from District Court, Boone Coun- sented their original notice as their only ty; Charles E. Albrook, Judge. Action for damages for the value of a cow. It was begun in justice court. From a verdict and judgment for plaintiffs the defendants appealed to the district court. In the district court the plaintiffs moved to dismiss the appeal for want of jurisdiction. This motion was overruled, and a certificate of appeal granted. From such ruling the plaintiffs have appealed. Affirmed. Ganoe & Ganoe, for appellants. Frank Porter and Whitaker & Snell, for appellees. EVANS, J. On September 9, 1909, in justice court, a verdict was rendered for the plaintiffs for $25, and judgment entered thereon. The only pleading filed in the case by plaintiffs was the original notice, wherein they claimed the sum of $25 and interest thereon from August 24, 1909. In the district court the plaintiffs' motion to dismiss the appeal was based upon the contention that the amount in controversy in the justice court did not exceed $25, and that the case was therefore not appealable. It is manifest that on the face of the pleadings the amount did exceed $25 by a few cents of interest. It is urged that this amount is so small that it should be disregarded. But the dividing line between the appealable and the nonappealable case is fixed by the statute, and is necessarily arbitrary. Being arbitrary and fixed, it is always certain and ascertainable in advance, and in its practical application is quite as equitable, if not more so, than if it were elastic. The fact that the excess over $25 is only a few cents in this case is quite immaterial; a few cents being as effectual as a few dollars to confer the right of appeal. Evans v. Murphy, 133 Iowa, 551, 110 N. W. 1025. It pleading. They could then have withdrawn their claim of interest from August 24th, if they desired to cut off the right of appeal. They had no occasion to ask interest upon their judgment. The statute provided for that. On the face of the pleading at the time of the trial, verdict and judgment could have been rendered for the plaintiffs for more than $25. If the verdict had been adverse to plaintiffs, they could have appealed. Necessarily the same right inured to the defendants. It rested in the election of the plaintiffs to say whether the case should be appealable or not, and they could have exercised such election, even after the verdict. Bateman v. Sisson, 70 Iowa, 518, 30 N. W. 870; Vorwald v. Marshall, 71 Iowa, 576, 32 N. W. 510. They did not do so. Whether their failure to do so was by intent or through oversight is not material. They had abundant opportunity to give expression and effect to the intent which they now press upon our attention. The day of their opportunity is gone, and the appellate court can only take the case as it was made below. The ruling of the trial court must therefore be affirmed. 1. Affirmed. INCORPORATED TOWN OF DOWS v. (Supreme Court of Iowa. Nov. 16, 1910.) COURTS (§ 25*)-JURISDICTION BY CONSENT. It is the almost universal rule that jurisdiction of the person may be conferred upon a court by consent. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 79, 80; Dec. Dig. § 25.*] 2. JUDGES ($54*)-COURTS OF INFERIOR JURISDICTION-PRESUMPTIONS AS TO JURISDICTION -MAYOR'S COURT. was 2. The history of the proceedings in the case discloses that the original notice was issued on August 19th, and that the return tice is disqualified from acting as such, exCode. § 284. provides that a judge or jusdate was fixed therein as August 24th. cept by mutual consent of parties, where he is is manifest that, if judgment had been ren- related to either party by affinity within the dered on the same date, the amount in con- fourth degree. Held that, assuming that the troversy would not have exceeded $25. It is it will be presumed that accused consented to act applies to a mayor of an incorporated town, urged upon us by plaintiffs that their real the jurisdiction of the mayor, who was relatintent was to claim interest only after judged to him within the fourth degree of affinity. ment, and not before, and that the notice was continued, and upon the day set for hearing he where upon accused's request the case formulated in pursuance of such intent, and appeared with counsel, entered a plea of not that they could not foresee that changes of guilty, and appealed to the district court from venue might occur and the day of trial be an adverse judgment, where he appeared by postponed; and they now ask that the notice risdiction of the mayor, nor of the district court, counsel, and no objection was made to the jube construed as claiming interest, not from until motion in arrest of judgment was filed August 24th, but from the day of the entry of judgment. We cannot recast the original notice. It is without ambiguity, and we must construe it according to its terms. If it be material to consider that the plaintiffs could not have foreseen a postponement of the trial to a later date, it is yet manifest that the plaintiffs must have known of the postponement after it was made and before the trial was had. On September 7th they pre [Ed. Note.-For other cases, see Judges, Cent. Dig. § 233; Dec. Dig. § 54.*] Appeal from District Court, Wright County: C. E. Albrook, Judge. The defendant was convicted of violating an ordinance of the Incorporated Town of Dows, and appeals. Affirmed. Birdsall & Birdsall, for appellant. Nagle & Nagle, for appellee. SHERWIN, J. An information was filed | had under consideration a question precisely with the mayor of the plaintiff town, charg- the same as the one now before us, except ing the defendant with the violation of a that the Schlisman-Webber Case was a civil town ordinance, defining misdemeanors and action. In that case a justice of the peace the punishment thereof. The mayor issued rendered a judgment against the plaintiff a warrant on the information, and the de- therein for over $100. The record of the fendant was arrested and taken before him. justice did not show that consent had been Upon his request the case was continued sev- given for such judgment, and we said: eral days, and upon the day set for the hear- "Whether a justice has jurisdiction in a case ing the defendant appeared with counsel and involving more than $100 depends, then, on entered a plea of not guilty, whereupon the whether the parties have consented to the case proceeded to trial, resulting in a judg-jurisdiction. It is the fact of consent which ment finding the defendant guilty and imposing a small fine. The defendant then appealed to the district court, where the case was later tried to a jury; the defendant appearing by counsel. The jury returned a verdict of guilty, on which the judgment was entered, from which this appeal is taken. A motion in arrest of judgment raised the question of the jurisdiction of the mayor, based upon his relationship with the defendant. It appears that the defendant and the mayor of the town of Dows are related within the fourth degree of affinity; they being brothers-in-law. There is no question as to the relationship. The only matter for our determination is whether the mayor, under the circumstances, had jurisdiction to hear and determine the charge made against the defendant. Section 284 of the Code provides as follows: "A judge or justice is disqualified from acting as such, except by mutual consent of parties, in any case wherein he is a party or interested or where he is related to either party by consanguinity or affinity within the fourth degree. * But this section shall not prevent him from disposing of any preliminary matter not affecting the merits of the case." Had proper and timely objection been made to the trial of the case before the mayor, there is no question but what the mayor would have been disqualified under the statute in question. But the record nowhere discloses, nor is it now claimed, that objection was made to the jurisdiction of the mayor, or to the jurisdiction of the district court, until the motion in arrest of judgment was filed. Such being the case, it must be assumed that the defendant consented to the jurisdiction of the mayor; and it is well settled that jurisdiction of the person may be conferred by consent. There is no question but what the mayor had jurisdiction of the subject-matter, and if he had jurisdiction of the person of the defendant by his consent, there is nothing in this appeal. gives him jurisdiction, and, in our opinion, if this fact existed, his judgment would be valid, even though no record of the fact was made. Section 3515 prescribes the matters which a justice is required to embody in his record, and the fact of consent to the jurisdiction in cases in which it is essential to the validity of the proceedings is not included. As the statute has thus prescribed the record which the justice is required to make, it follows, we think, that a judgment, the record of which embodies the matters so required to be embraced in it, is at least prima facie valid. Under section 3669, the proceedings of courts of limited jurisdiction are presumed to be regular, except in regard to matters required to be made of record; and, as the consent of the parties to the jurisdiction is not required to be made a matter of record, the presumption is that such consent was communicated to the justice in some manner before he proceeded to take jurisdiction of the case." Even if it be held that section 284 is applicable to this case, the contention of the appellant is fully disposed of by the authority we have just cited and by the language used in that opinion. The defendant appeared in the mayor's court both personally and with counsel, and, although he must have been fully cognizant of the relationship existing between them, he went to trial without protest or objection; and, inasmuch as it is the almost universal rule that jurisdiction of the person may be conferred by consent, it would be little less than startling to hold in this case, with these facts before us, that the mayor was without jurisdiction to hear and determine the charge made against the defendant. The judgment of the district court is therefore right, and it is affirmed. STATE v. CASPER. (Supreme Court of Iowa. Nov. 21, 1910.) CRIMINAL LAW (§ 1087*)-APPEAL-RECORDMATTERS TO BE SHOWN-TAKING APPEAL. When a case is submitted on short tran The real contention of the defendant is that, the mayor's court being a court of inferior jurisdiction, no presumption obtains as to jurisdictional facts, but that they must appear of record; and it is said that it must affirmatively appear that the defendant con- script, which does not show the order of appeal, the appellate court is without jurisdiction, and sented to the jurisdiction of the mayor. This the case must be stricken from the docket. is not the rule, however. In Schlisman v. [Ed. Note. For other cases, see Criminal Law, Webber, 65 Iowa, 114, 21 N. W. 209, the court Cent. Dig. §§ 2774-2776; Dec. Dig. § 1087.*] |